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Hayes & Eburn criminal law and procedure in New South Wales [5th edition.]
 9780409343779, 0409343773

Table of contents :
Full Title
Copyright
Preface to the Fifth Edition
Table of Flow Charts
Table of Cases
Table of Statutes
Table of Contents
Chapter 1 General principles
Definition of crime
Role of criminal law
Restraining the state
Bill of rights
Burden of proof
Discretion
Role of lawyers
Elements of a crime
Introduction
Physical elements
Fault elements
Motive
Coincidence of physical and fault elements
Special defendants
Introduction
Children
Corporate defendants
Conclusion
Strict and absolute liability
Conclusion
Discussion questions
Chapter 2 Murder
Introduction
MCCOC on murder and manslaughter
Murder in New South Wales
Elements of murder
Physical elements
Act or omission
Culpable omissions
Causation
Intervening acts and events
Voluntary act of the deceased
Pre-existing susceptibility
Death of a living person
Fault elements
Reckless indifference to human life
Intention to kill
Intention to cause grievous bodily harm
Constructive murder
The fault element in constructive murder
The requirement of malice
Conclusion
Discussion questions
Chapter 3 Voluntary manslaughter
Introduction
Extreme provocation
Introduction
The two-part test
Loss of control after sustained period of abuse
Ordinary person test
Intoxication and extreme provocation
Words as provocative conduct
Presence of the accused
Third party conduct
Self-induced provocation
Mistake
Withholding provocation from the jury
Proportionality not required
Abolition of provocation
Substantial impairment by abnormality of mind
Excessive self-defence
Infanticide
Discussion questions
Chapter 4 Involuntary manslaughter
Introduction
Two forms of involuntary manslaughter
Unlawful and dangerous act manslaughter
Elements of unlawful and dangerous act manslaughter
Unlawful and dangerous act
Unlawful otherwise than as breach of statutory or regulatory provision
Burden on Crown to prove death caused by unlawful act
Manslaughter by criminal negligence
Manslaughter by negligent act
Manslaughter and malice
Manslaughter by negligent omission
Where there is an unexpected incident in carrying out a common design
Assault causing death
Culpable killing
Discussion questions
Chapter 5 Non-fatal offences against the person
Introduction
Assault
Elements of assault
Physical elements of assault
Fault element of assault
Stalking, intimidation and domestic violence
Battery
Physical elements of battery
Fault element of battery
Aggravated assaults
Wounding
Grievous bodily harm
Assault and battery summarised
Consent
Limits of consent
Sexually transmitted diseases and consent
Consent reviewed
Discussion questions
Chapter 6 Sexual offences
Introduction
Statutory and common law framework
Statutory framework
Intention and recklessness, capacity and consent, knowledge and mistake
Sexual assault
Introduction
Physical elements
Act of sexual intercourse
Without consent
Fault elements
Knowledge of and recklessness as to consent
Non-advertent recklessness
Advertent recklessness
Honest but unreasonable belief in consent
Negation of consent
Consent in relation to offences of attempted sexual assault
Grounds to establish absence of consent
Indecent assault and act of indecency
Indecent assault
Act of indecency
Act of indecency as an element of indecent assault and as a separate crime
Act of indecency towards another person
Fault element for indecent assault
Child sexual assault
Special evidentiary and procedural rules applying in sexual assault trials
Discussion questions
Chapter 7 Stealing and other property offences
Introduction
History of larceny
Larceny
Punishment under the Crimes Act
Elements of larceny
Concept of property
Physical elements of larceny
Taking and carrying away
Something capable of being stolen
In someone’s possession whether or not the owner
Without the consent of the person in possession
Fault elements of larceny
Intention to deprive the owner of property in the thing
Fraudulently and without honest claim of right
Finding and larceny
Mistake and the requirement of coincidence between physical and fault elements
Larceny by a trick
Statutory offences
Introduction
Larceny by bailee
Fraudulent appropriation
Embezzlement
Statutory fraud offences of Part 4AA
Alternative verdicts in cases of dishonest acquisition
Other property offence categories
Discussion questions
Chapter 8 Mental illness, voluntariness, automatism and intoxication
Introduction
Mental illness
M’Naghten’s Rules
Substantial impairment by abnormality of mind
Fitness to be tried
Voluntariness and automatism
Introduction
Voluntary act
Non-insane automatism
Commentary on automatism
Intoxication
Introduction
Common law background
Part 11A of the Crimes Act
Intoxication and attempted offences of specific intent
Intoxication and mental illness
Discussion questions
Chapter 9 Duress, necessity and self-defence
Introduction
Duress
Introduction
Elements of duress
Would a reasonable person have acted as the accused did?
Is an act done under duress a ‘voluntary’ act?
Duress, murder and constructive murder
Necessity
Elements of necessity
Necessity and murder
Necessity and abortion
Self-defence
Common law background
Legislative statement of self-defence
Elements of self-defence
Excessive force that inflicts death
Response to lawful conduct or non-criminal conduct
Defence of others and defence of property
Defences to non-fatal offences
Discussion questions
Chapter 10 Attempt, conspiracy and complicity
Introduction
Inchoate terrorism crimes
Attempt
Introduction
Common law on attempt
Elements of attempt
Physical element of attempt
Impossibility
Fault element for attempt
Conspiracy
Introduction
Physical and fault elements for conspiracy
Agreement
Impossibility of carrying out the agreement
Fault element of agreement
Intention that an offence be committed
Conspiracy to commit a crime of recklessness
Complicity
Introduction
Statutory provisions relating to complicity
Principal in the first degree
Joint criminal enterprise
Innocent agents
Principal in the second degree
Accessory before the fact
Joint criminal enterprise
Introduction
Scope and application of joint criminal enterprise
Extended common purpose
Constructive murder and joint criminal enterprise
Manslaughter from participation in a joint criminal enterprise
Withdrawal from complicity
Requirements for withdrawal
Accessory after the fact
Introduction
Physical element for accessory after the fact
Fault element for accessory after the fact
Misprision of felony
Discussion questions
Chapter 11 Criminal procedure and evidence — Part 1 Investigation, arrest and bail
Introduction
Overview of criminal procedure
Detecting the offence
Investigating an alleged offence — power to stop and search without warrant
Reasonable suspicion
Investigation with warrant
Search warrants
Issuing a warrant
Powers and responsibilities under a warrant
Nature of search warrants and obligations of issuing justice
Entry for investigation without warrant
Expanding powers
Commencing proceedings
Arrest without warrant
Arrest with warrant
Definition of arrest
Statement of reason for arrest
Entry into premises to effect an arrest
Force used against a person to effect an arrest
Purpose of arrest
Search incidental to arrest
Detention for further investigation after arrest
Search, identification and collection of forensic examples after arrest
Search
Medical examinations
Collection of forensic samples
Fingerprints and photographs
Rights of accused
Protections at the police station
Release or bail
Bail
Nature of bail
Bail Act 2013
Making bail decisions
Considerations for bail (Bail Act 2013 (NSW) s 16))
Bail conditions
Refusing bail or bail conditions cannot be met
Period of bail
Varying bail
Failure to comply
Conclusion
Discussion questions
Chapter 12 Criminal procedure and evidence — Part 2 Trial, admissions, sentence and appeal
Introduction
Penalty notice matters
Court hearings
Summary matters
Return first date
Plea of guilty
Plea of not guilty — brief to be served
Ex parte hearings
Hearing of the matter
Indictable matters
Committal proceedings
Presentation of the indictment
Plea
Pre-trial disclosure
Arraignment
Criminal trial
Sentencing
Principles
Statutory framework
Maximum penalties
Non-custodial options
Community service orders
Good behaviour bonds
Find the offence proved but take no action
Deferral of sentence for rehabilitation
Fines
Diversion of offenders
Suspended sentence
Custodial orders
Compulsory drug treatment detention
Home detention
Intensive correction
Full-time custody and parole
Life sentence
Appeals
Appeal against sentence
Power of the Court of Criminal Appeal
Petition to the Governor based upon fresh evidence following final appeal
Rule against double jeopardy — autrefois convict and autrefois acquit
Aspects of evidence
Evidence Act 1995 (NSW)
Admissions and confessions
Illegally or improperly obtained admissions
Fabricated confessions — common law
Modern statutory scheme
Criminal Procedure Act 1986 s 281 and Evidence Act 1995 s 86
Evidence Act 1995 s 84
Evidence Act 1995 s 85
Evidence Act 1995 s 137
Discretionary exclusion
Evidence Act 1995 ss 138 and 139
Evidence Act 1995 s 90
Right to silence
Conclusion
Discussion questions
Index

Citation preview

HAYES & EBURN

Criminal Law and Procedure in New South Wales Fifth edition Dr Michael Eburn BCom LLB (UNSW), BA (Hons) (NE), LLM (Newcastle), MPET (Deakin), PhD (Monash) Barrister Associate Professor, ANU College of Law

The Honorable Roderick N Howie QC BA, LLB, LLM (Hons) (Sydney) former Justice, Supreme Court of New South Wales

Paul Sattler BA (Hons), LLB (Hons) (NE), Grad Dip Legal Prac (College of Law) Solicitor Lecturer, School of Law, University of New England

Marissa Hood BA (Melb), LLB (NE) Graduate Diploma in Information Management (RMIT) Librarian, Australian Government Solicitor LexisNexis Butterworths Australia 2016

LexisNexis AUSTRALIA LexisNexis Butterworths 475–495 Victoria Avenue, Chatswood NSW 2067 On the internet at: www.lexisnexis.com.au ARGENTINA LexisNexis Argentina, BUENOS AIRES AUSTRIA LexisNexis Verlag ARD Orac GmbH & Co KG, VIENNA BRAZIL LexisNexis Latin America, SAO PAULO CANADA LexisNexis Canada, Markham, ONTARIO CHILE LexisNexis Chile, SANTIAGO CHINA LexisNexis China, BEIJING, SHANGHAI CZECH REPUBLIC Nakladatelství Orac sro, PRAGUE FRANCE LexisNexis SA, PARIS GERMANY LexisNexis Germany, FRANKFURT HONG KONG LexisNexis Hong Kong, HONG KONG HUNGARY HVG-Orac, BUDAPEST INDIA LexisNexis, NEW DELHI ITALY Dott A Giuffrè Editore SpA, MILAN JAPAN LexisNexis Japan KK, TOKYO KOREA LexisNexis, SEOUL MALAYSIA LexisNexis Malaysia Sdn Bhd, PETALING JAYA, SELANGOR NEW ZEALAND LexisNexis, WELLINGTON POLAND Wydawnictwo Prawnicze LexisNexis, WARSAW SINGAPORE LexisNexis, SINGAPORE SOUTH AFRICA LexisNexis Butterworths, DURBAN SWITZERLAND Staempfli Verlag AG, BERNE TAIWAN LexisNexis, TAIWAN UNITED KINGDOM LexisNexis UK, LONDON, EDINBURGH USA LexisNexis Group, New York, NEW YORK LexisNexis, Miamisburg, OHIO

National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition:

Eburn, Michael. Hayes & Eburn Criminal Law and Procedure in New South Wales. 5th edition.

ISBN: Notes: Subjects:

9780409343762 (pbk). 9780409343779 (ebk). Includes index. Criminal law — New South Wales. Criminal procedure — New South Wales. Other Authors/Contributors: Howie, R. N. (Roderick N.), Sattler, Paul, Hood, Marissa. Dewey Number: 345.944.

© 2016 Reed International Books Australia Pty Limited trading as LexisNexis. First edition 2002; Second edition 2006, reprinted 2008 (twice); Third edition 2009; Fourth edition 2014. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Helvetica Neue, Optima and Palatino. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface to the Fifth Edition The original authors of this book, Michael Eburn and the late Robert Hayes, then teachers of criminal law at the University of New England (UNE) in Armidale, NSW, decided to write a criminal law text with a particular purpose in mind. It was designed to fill a gap by providing a text for a one semester course that covered the subjects necessary to meet the learning objectives for criminal law prescribed by the Legal Profession Admission Rules. Its aim was not to discuss every facet of the criminal law, to cover the entire range of criminal offences operating in this state or to provide a critical analysis of the jurisprudence of the criminal law. Rather its purpose was, and continues to be, to assist students, early in their legal career, to identify the fundamental aspects of the criminal law, both theoretical and practical, and to understand how the laws that are passed by parliament are supplemented and interpreted by the courts and how they impact on the lives of ordinary citizens. Thus the book contains a mixture of discussion, reproductions of statutory provisions and case extracts dealing broadly with the operation of the criminal law by the police and the various courts. It deals with practical aspects of the course of criminal justice from investigation through to the appellate jurisdiction of the state’s criminal courts. It includes a consideration of the principles of criminal responsibility and evidentiary rules of significance in criminal trials. The authors of the fourth edition were: Michael Eburn of the Australian National University in Canberra; Rod Howie QC, a former NSW Supreme Court Judge; and Paul Sattler, a

solicitor and lecturer at UNE. They are joined for this edition by Marissa Hood who currently works as a librarian at Australian Government Solicitor. She has degrees in Arts, Law and Information Management. This edition notes some significant changes to the criminal law in this state since the book’s last publication. It considers the new defence of extreme provocation and examines the resultant changes to the defence of provocation, as it previously existed. There is a discussion of the new offence created where death occurs as the result of a punch thrown to the body of the victim. The Bail Act 2013, which is now in force, is examined in detail and there are references to the increasing impact of terrorist legislation. There are extracts from cases decided in 2015 and 2016. In order to acknowledge the significant contribution made by Robert Hayes to the teaching of law and his assistance to those less advantaged in the community, part of the proceeds from the sale of this book will go to the Robert Hayes Memorial Scholarship for Law that is available to support third or fourth year law students at the University of Western Sydney who have demonstrated a passion for and commitment to the law and who can demonstrate financial or other hardship or who are the first in their family to attend university. The book remains true to its original philosophy, providing a careful analysis of the legislation and case law as well as the provisions that govern criminal procedure. It states the law as at June 2016. The Honorable Roderick N Howie QC June 2016

Table of Flow Charts Flow chart 1-1: Discretion Flow chart 2-1: Murder and manslaughter Murder (Chapter 2) Voluntary manslaughter (Chapter 3) Involuntary manslaughter (Chapter 4) Flow chart 8-1: The defences for offences other than murder Flow chart 8-2: The defences for murder Flow chart 11-1: Overview of criminal procedure Flow chart 11-2: Show cause requirement Flow chart 11-3: Unacceptable risk test Flow chart 12-1: Steps to consider in the admissibility of admissions

Table of Cases References are to paragraphs; Bold numbers indicate case extract

A A v Director of Public Prosecutions [1992] Crim LR 34 …. 1.80 A (Children) (Conjoined Twins: surgical separation), Re [2000] 4 All ER 961 …. 8.5, 9.27 Abbassy v Commissioner of Police of the Metropolis [1990] 1 All ER 193 …. 11.41 Abbott v R [1977] AC 755 …. 9.6 Adams v Kennedy (2000) 49 NSWLR 78; [2000] NSWCA 152 …. 11.40, 11.56 Aguilar v Texas 378 US 108 (1964) …. 11.9 Ahern v R (1988) 165 CLR 87 …. 10.60 Airedale NHS Trust v Bland [1993] AC 789; [1993] 1 All ER 821 …. 2.8 Alderson v Booth [1969] 2 QB 216 …. 11.39 Alister v R (1984) 154 CLR 404; 51 ALR 480 …. 10.17 Al-Kateb v Godwin (2004) 219 CLR 562; 208 ALR 124 …. 1.47, 1.89 Alqudsi v R [2016] HCA 24 …. 12.5 Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 …. 11.9 Andrews v Director of Public Prosecutions [1937] AC 576 ….

4.2, 4.6, 4.14, 4.15 Anglim and Cooke v Thomas [1974] VR 363 …. 7.19 Anic v R (1993) 68 A Crim R 313 …. 7.14 Ansari v R (2007) 70 NSWLR 89 …. 10.30 — v — (2010) 241 CLR 299; 266 ALR 446 …. 10.31 Ansett Australia v Dale [2001] NSWCA 314 …. 2.17 AP v Switzerland (1997) 26 EHRR 541 …. 1.39 Arulthilakan v R (2003) 189 ALR 40 …. 2.11 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] EWCA Civ 1 …. 11.9 Astor v Hayes (1988) 38 A Crim R 219 …. 7.38 Attorney-General v Able [1984] 1 All ER 277; [1983] 3 WLR 845 …. 10.18 — v Whelan [1934] IR 518 …. 9.6 Attorney-General (NSW) v Dean (1990) 20 NSWLR 650 …. 11.51, 11.71 — v Perpetual Trustee Co Ltd (1951–1952) 85 CLR 237 …. 2.17

B B v R (1958) 44 Crim App R 1 …. 1.80 Bales v Parmeter (1935) 35 SR (NSW) 182 …. 11.9, 11.49, 11.51, 11.52 Banditt v R (2005) 224 CLR 262; 223 ALR 633 …. 5.29, 6.20, 6.22 Baraghith v R (1991) 66 ALJR 212 …. 3.18 Barbaro v R (2014) 253 CLR 58; 305 ALR 323 …. 1.22 Barca v R (1975) 133 CLR 82 …. 8.45

Barker v R (1983) 153 CLR 338 …. 7.38 Barton v Armstrong [1969] 2 NSWR 451 …. 5.8 Beavan v R (1954) 92 CLR 660 …. 3.7 Bendix Autolite Corp v Midwesco Enterprises Inc 486 US 888 (1988) …. 12.132 Bergin v Stack (1953) 88 CLR 248 …. 1.88 Bernhard and Harris v Harrison [1963] Crim LR 497 …. 7.38 Binskin v Watson (1990) 48 A Crim R 33 …. 1.87 Blackmore v Linton [1961] VR 374 …. 10.18 Blackwell v R (2011) 81 NSWLR 119; 208 A Crim R 392; [2011] NSWCCA 93 …. 2.33, 5.29, 5.30 Boucher v R (1954) 110 CCC 263 …. 1.60 Boughey v R (1986) 161 CLR 10 …. 2.21, 5.31, 8.59 Brady v Schatzel [1911] St R Qd 206 …. 5.7, 5.31 Bratty v AG for Northern Ireland [1963] AC 386 …. 2.7, 6.10, 8.45 Britten v Alpogut [1987] VR 929; (1986) 23 A Crim R 254 …. 10.7, 10.8, 10.9, 10.10, 10.14 Broadhurst v R [1964] AC 441 …. 8.60 Brown v R (1913) 17 CLR 570 …. 1.50 — v — (1986) 160 CLR 171; 64 ALR 161 …. 12.5 Bryant v R (2011) 205 A Crim R 531; [2011] NSWCCA 26 …. 12.117, 12.127 Bunning v Cross (1978) 141 CLR 54 …. 12.102, 12.104, 12.137, 12.141 Burns v R (2012) 246 CLR 334; 290 ALR 713; [2012] HCA 35 …. 2.12, 4.5, 4.15, 10.67

Burut v Public Prosecutor [1995] 2 AC 579 …. 12.123

C C (A Minor) v Director of Public Prosecutions [1996] AC 1 …. 1.80 Cameron v Holt (1980) 142 CLR 342 …. 1.88 Campbell v R [1981] WAR 286 …. 2.13 Carlton v R (2008) 189 A Crim R 332; [2008] NSWCCA 244 …. 12.81 Carney v R; Cambey v R (2011) 217 A Crim R 201; [2011] NSWCCA 223 …. 12.80 Carr v R (1973) 172 CLR 662 …. 11.64 — v — (1988) 165 CLR 314; 81 ALR 236 …. 12.111, 12.112 — v Western Australia (2007) 232 CLR 138; [2007] HCA 47 …. 12.117, 12.120 Carroll v Mijovich (1991) 25 NSWLR 441 …. 11.20, 11.23 Caxton Publishing Co v Sutherland Publishing Co [1939] AC 178 …. 7.52 CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 …. 9.29, 9.30 Chamberlain v R (No 2) (1984) 153 CLR 521 …. 4.14 Chard v Wallis (1988) 12 NSWLR 453 …. 6.53 Chase Manhattan v Israel-British [1981] Ch 105 …. 7.52 Chen v R [2013] NSWCCA 116 …. 2.33 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161; 201 ALR 1; [2003] HCA 49 …. 1.17, 1.18, 1.20, 1.21 Christie v Leachinsky [1947] UKHL 2; [1947] AC 573; [1947] 1 All ER 567 …. 11.39, 11.40, 11.43, 11.56

Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 …. 1.44 Cioban v R [2003] NSWCCA 304 …. 9.49 Clarke v Bailey (1933) 33 SR (NSW) 303; [1933] NSWStRp 22 …. 11.52, 11.53, 11.54 Clayton v R (2006) 81 ALJR 439; 168 A Crim R 174; [2006] HCA 58 …. 10.64, 10.67 Cleland v R (1982) 151 CLR 1 …. 12.102, 12.149 Coco v R (1994) 179 CLR 427; [1994] HCA 15 …. 6.31, 11.65 Cole v Turner (1704) 6 Mod Rep 149; 90 ER 958 …. 5.21 Collins v R (1980) 31 ALR 257; [1980] FCA 72 …. 12.100, 12.123 — v Wilcock [1984] 3 All ER 374 …. 5.21 Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293 …. 12.123 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 326 ALR 476; [2015] HCA 46 …. 1.22 Condon v R (1995) 83 A Crim R 335 …. 7.29 Coomer v R (1989) 40 A Crim R 417 …. 4.2 Cooper v Phibbs (1867) LR 2 HL 149 …. 7.44 — v R (2012) 293 ALR 17; [2012] HCA 50 …. 12.80 Cornelius & Briggs v R (1988) 34 A Crim R 49 …. 7.29 Coward v Baddeley (1859) 4 H & N 478; [1859] 157 ER 927 …. 5.21 Crawford v R [2008] NSWCCA 166 …. 9.45 Croton v R (1967) 117 CLR 326 …. 7.13, 7.15, 7.16 Crowe v Graham (1969) 121 CLR 375 …. 6.46

Crowley v Murphy (1981) 34 ALR 496; [1981] FCA 31 …. 11.19 Crusius v R (1982) 5 A Crim R 427 …. 4.2 CTM v R (2008) 236 CLR 440; 247 ALR 1; [2008] HCA 25 …. 1.89, 1.90, 6.53

D Daemar v Corporate Affairs Commission (Supreme Court of NSW, CA, 4 September 1990, unreported) …. 11.32 Davis v R (1998) 73 ALJR 139 …. 3.25 Dawson v R (1961) 106 CLR 1 …. 1.50 De Gruchy v R (2002) 211 CLR 85; 190 ALR 441; [2002] HCA 33 …. 1.73 Dean v R (2006) 166 A Crim R 341; [2006] NSWCCA 341 …. 6.30 Dickson v Commissioner of Police (1999) 48 NSWLR 156 …. 11.61 Dietrich v R (1992) 177 CLR 292; 109 ALR 385 …. 1.36, 12.157 Dillon v O’Brien and Davis (1887) 20 LR Ir 300 …. 11.53 Director of Public Prosecutions v AM (2006) 161 A Crim R 219; [2006] NSWSC 348 …. 11.32 — v Beard [1920] AC 479 …. 8.59 — v Bell (1992) RTR 335 …. 9.24 — v Carr (2002) 127 A Crim R 151; [2002] NSWSC 194 …. 11.31, 11.32, 12.136 — v Daley [1980] AC 237 …. 2.10 — v Doot [1973] AC 807 …. 10.24 — v Jones (1990) RTR 33 …. 9.24

— v Majewski [1977] AC 443; [1976] 2 All ER 142 …. 8.51, 8.53, 8.59 — v Marijancevic, Preece and Preece (2011) 33 VR 440 …. 11.20 — v Mills [2000] NSWCA 236 …. 8.15 — v Morgan [1976] AC 182 …. 6.17, 6.21, 6.22 — v Newbury; Director of Public Prosecutions v Jones [1977] AC 500 …. 4.2, 4.4, 4.7 — v Nicholls (2001) 123 A Crim R 66 …. 11.70, 11.72 — v Nock [1978] AC 979; [1978] 2 All ER 654 …. 10.27, 10.31 — v Ping Lin [1976] AC 574 …. 12.123 — v Rogers [1953] 1 WLR 1017 …. 6.47 — v Smith [1961] AC 290; [1960] 3 All ER 161 …. 5.28, 8.59 — v Stonehouse [1978] AC 55 …. 10.11, 10.17 Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653; [1975] 1 All ER 913 …. 8.38, 9.6, 9.14, 9.17, 9.19 Director of Public Prosecutions (NSW) v CAD [2003] NSWSC 196 …. 11.32 Do v R [2001] NSWCCA 19 …. 4.9 Donaldson v Broomby (1982) 40 ALR 525 …. 11.28 Doney v R (1990) 171 CLR 207 …. 12.45 Douglas v R [2005] NSWCCA 419 …. 9.33 Driscoll v R (1977) 137 CLR 517; 15 ALR 47 …. 12.110 Duffield v Police (No 2) [1971] NZLR 710 …. 11.64 Duke v R (1989) 180 CLR 508; 83 ALR 650 …. 12.111, 12.112 Duong Hai Nguyen v R; ATCN v R; Khanh Hoang Nguyen

v R; Minh Thy Huynh v R [2007] NSWCCA 363 …. 10.68 Dziduch v R (1990) 47 A Crim R 378 …. 9.41

E Edwards v R [1973] AC 648 …. 3.27 Elias v Director of Public Prosecutions (NSW) [2012] NSWCA 302 …. 7.67, 7.68 Ellis v Lawson (1987) 33 A Crim R 69 …. 7.19, 7.22, 7.63 Em v R (2007) 232 CLR 67; 239 ALR 204; [2007] HCA 46 …. 12.149 Engel v Netherlands (No 1) (1976) 1 EHRR 647 …. 1.39 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; 118 ALR 392 …. 1.82 Esso Australia Resources Australia Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 …. 2.17 Evans v European Bank Ltd (2004) 61 NSWLR 75; [2004] NSWCA 82 …. 7.55 — v New South Wales (2008) 168 FCR 576; 250 ALR 33 …. 1.7, 1.8, 1.9, 1.10 — v Powell [2012] NSWSC 1384 …. 12.96

F Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; [1968] 3 All ER 442 …. 5.6, 5.7, 5.9, 5.31 Fairclough v Whipp (1951) 35 Cr App R 138 …. 6.47 Fardon v Attorney-General (Qld) (2004) 223 CLR 575; 210 ALR 50; [2004] HCA 46 …. 1.28, 1.43, 1.44, 1.45 Ferguson v Weaving [1951] 1 KB 814 …. 10.18, 10.41 Fitzgerald v Kennard (1995) 38 NSWLR 184 …. 6.6, 6.49, 6.50

Fleet v District Court [1999] NSWCA 363 …. 11.32 Foster v R (1967) 118 CLR 117 …. 7.21, 7.22, 7.23, 7.67 — v — (1993) 67 ALJR 550 …. 11.56, 12.104, 12.149 Fox v UK (1991) 13 EHRR 157; [1990] ECHR 18 …. 11.41 Fullerton v Commissioner of Police (1984) 1 NSWLR 159 …. 11.64

G Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] AC 1; [1984] 2 All ER 503; [1984] 3 WLR 437 …. 1.88 Gapes v Commercial Bank of Australia Ltd (No 2) (1979) 27 ALR 87 …. 1.12, 1.16, 1.40 Garrett v R (1977) 139 CLR 437 …. 12.88 George v Rockett (1990) 170 CLR 104; 93 ALR 483 …. 11.7, 11.9, 11.21 Gerakiteys v R (1984) 153 CLR 317; 51 ALR 417 …. 10.24, 10.25, 10.29, 10.31 Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 …. 8.28 Gilham v R (2007) 178 A Crim R 72 …. 12.91 Gillard v R (2003) 219 CLR 1 …. 10.62, 10.64 Giorgianni v R (1985) 156 CLR 473; 58 ALR 641 …. 7.38, 10.18, 10.29, 10.31, 10.32, 10.41, 10.45, 10.55 Gould & Co v Houghton [1921] 1 KB 509 …. 10.18 Gray v Barr [1971] 2 QB 554 …. 4.2 Grdic v R [1985] 1 SCR 810 …. 12.88 Green v R (1971) 126 CLR 28; [1972] ALR 524 …. 1.50 — v — (1997) 191 CLR 334; 148 ALR 659 …. 3.18, 3.23, 3.29,

3.30

H Habib v Commonwealth of Australia [2008] FCA 1494 …. 12.123 — v Nationwide News Pty Ltd (2009) 76 NSWLR 299; [2010] NSWCA 34 …. 12.123 Halliday v Nevill (1984) 15 CLR 155 …. 11.21, 11.22, 11.45 Hamod v State of NSW [2011] NSWCA 375 …. 11.42 Han v Commissioners of Customs and Excise [2001] 4 All ER 687 …. 1.39 Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67 …. 6.31 Hatzinikolaou v Snape (1989) 97 FLR 86 …. 11.39 Haughton v Smith [1975] AC 476 …. 10.7, 10.10, 10.14, 10.27 He Kaw Teh v R (1985) 157 CLR 523; 60 ALR 449 …. 1.14, 1.83, 1.85, 1.88, 1.89, 6.10, 6.25, 6.52, 7.44 Hibbert v McKiernan [1948] 2 KB 142 …. 7.45 Higgins v R [2007] NSWCCA 56 …. 12.123 Holland, Application of [2008] NSWSC 251 …. 12.85 Holmes v DPP [1946] AC 588 …. 3.29 House v R (1936) 55 CLR 499 …. 12.46 Hussien v Chong Fook Kam [1970] AC 942 …. 11.7 Hyder v The Commonwealth (2012) 217 A Crim R 517; [2012] NSWCA 336 …. 11.9

I Iannella v French (1968) 119 CLR 84 …. 1.88

Ibbs v R (1987) 163 CLR 447; [1987] HCA 46 …. 12.73 Ilich v R (1987) 162 CLR 110; 69 ALR 231; [1987] HCA 1 …. 7.5, 7.7, 7.51, 7.52, 7.53, 7.54, 7.55 International Finance Trust Co Ltd v New South Wales Crime Commission (2008) 189 A Crim R 559; [2008] NSWCA 291 …. 11.9 — v — (2009) 240 CLR 319; [2009] HCA 49 …. 11.9

J Jago v District Court of New South Wales (1989) 168 CLR 23; 87 ALR 577 …. 1.53 JBH and JH (Minors) v O’Connell [1981] Crim LR 632 …. 1.80 Jiminez v R (1992) 173 CLR 572; 106 ALR 162 …. 1.84, 3.28 Johns v R (1980) 143 CLR 108; 28 ALR 155 …. 10.18, 10.44, 10.52, 10.53, 10.55, 10.64, 10.67 Johnson v R (1976) 136 CLR 619; 11 ALR 23 …. 3.18 — v Reeves (2004) 13 Tas R 150; [2004] TASSC 110 …. 11.43 — v Youden [1950] 1 KB 544 …. 10.18 Johnstone v State of New South Wales (2010) 202 A Crim R 422 …. 11.41, 11.42 Jones v United States of America 308 F 2d 307 (1962) …. 4.14 Justins v R (2010) 79 NSWLR 544 …. 2.12

K K v Minister for Youth and Community Services [1982] 1 NSWLR 311 …. 9.29 Kable v DPP (1995) 36 NSWLR 374 …. 1.27, 1.28, 1.32, 1.47, 5.11 — v — (1997) 189 CLR 51; 138 ALR 577 …. 1.28, 1.42, 1.43,

1.44 Kalajzich & Orrock v R (1989) 39 A Crim R 415 …. 2.27 Kelly v R (1923) 32 CLR 509 …. 4.14 — v — (2004) 218 CLR 216; 205 ALR 274; 78 ALJR 538; [2004] HCA 12 …. 12.117, 12.119, 12.127 Kennison v Daire (1986) 160 CLR 129; [1986] HCA 4 …. 7.16, 7.17, 7.54, 7.67, 7.69, 7.70 Kesavarajah v R (1994) 181 CLR 230; 123 ALR 463 …. 8.32 King v R (2012) 245 CLR 588; 288 ALR 565; [2012] HCA 24 …. 4.9 Kolosque v Miyazaki (17 February 1995, unreported) …. 7.18 Kuru v State of New South Wales (2008) 236 CLR 1; 246 ALR 260; [2008] HCA 26 …. 11.22

L La Fontaine v R (1976) 136 CLR 62 …. 2.20 Lacis v Cashmarts [1969] 2 QB 400 …. 7.52 Lackenby v Kirkman [2006] WASC 164 …. 11.64 Lake v Dobson (Supreme Court of NSW, CA, 19 December 1980, unreported) …. 11.32 Lancashire and Yorkshire Railway Co v MacNicoll (1918) 88 LJ (KB) 601 …. 7.52 Langham v R (1984) 36 SASR 48 …. 7.38, 7.41 Laskey, Jaggard and Brown v United Kingdom (1997) 24 EHRR 39 …. 5.33 Lee Chun-Chuen v R [1963] AC 220 …. 3.29 Lenard v R (1992) 58 A Crim R 123 …. 7.38

Licciardello v R (2012) 6 ACTLR 233; 219 A Crim R 445; [2012] ACTCA 16 …. 11.39 Likiardopoulos v R (2012) 247 CLR 265; 291 ALR 1; [2012] HCA 37 …. 1.53, 10.58 Lim Chin Aik v R [1963] AC 160 …. 1.88 Lindsay v R (2015) 255 CLR 272; 319 ALR 207 …. 3.29 Lippl v Haines (1989) 18 NSWLR 620 …. 11.22, 11.45, 11.46 Luc Thiet Thuan v R [1997] AC 131 …. 3.18

M Macleod v R (2003) 214 CLR 230; 197 ALR 333; [2003] HCA 24 …. 7.25, 7.31, 7.32, 7.38, 7.44, 7.49 MacPherson v Brown (1975) 12 SASR 184 …. 5.9, 5.31 Maguire v Beaton (2005) 162 A Crim R 22 …. 11.65 Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 …. 2.10 Makrynikos v R [2006] NSWCCA 170 …. 9.9, 9.11 Mamote-Kulang v R (1964) 111 CLR 62 …. 2.7, 2.13, 4.2 Mancini v DPP [1942] AC 1 …. 8.45 Markarian v R (2005) 228 CLR 357; 215 ALR 213; [2005] HCA 25 …. 12.46, 12.47, 12.48, 12.70 Markby v R (1978) 140 CLR 108 …. 10.57 Masciantonio v R (1995) 183 CLR 58; 129 ALR 575 …. 3.18, 3.28 Masnec v R [1962] Tas SR 254 …. 2.21 Matusevich v R (1977) 137 CLR 633 …. 10.57 MBF Australia Ltd v Malouf [2008] NSWCA 214 …. 7.55

McAuliffe v R (1995) 183 CLR 108; 130 ALR 26 …. 2.29, 10.44, 10.55, 10.56, 10.61, 10.64, 10.67 McCullough v R [1982] Tas R 43 …. 9.41 McDermott v R (1948) 76 CLR 501; [1948] HCA 23 …. 12.100, 12.104, 12.123 McGhee v R (1995) 183 CLR 82 …. 9.52 McGowan v Langmuir [1931] SC (J) 10 …. 6.47 McGrath v R (2010) 199 A Crim R 527; [2010] NSWCCA 48 …. 6.29 McIntyre v R (2009) 198 A Crim R 549; [2009] NSWCCA 305 …. 3.23 McKinney v R (1991) 171 CLR 468; 98 ALR 577 …. 12.112 Meissner v R (1995) 184 CLR 132 …. 12.12 Merritt and Roso v R (1985) 19 A Crim R 360 …. 12.139 Meyers v R (1997) 147 ALR 440 …. 1.76 Michaels v R (1995) 184 CLR 117 …. 11.52 Miller v R [2016] HCATrans 106 …. 10.65 — v Race (1758) 1 Burr 452; 97 ER 398 …. 7.52 Mills v R (1986) 68 ALR 455 …. 10.53 Miranda v Arizona 384 US 436 (1966) …. 11.99 Moffa v R (1977) 138 CLR 601; 13 ALR 225 …. 3.18, 8.45 Mohan v R [1967] 2 AC 187 …. 10.41, 10.60, 10.61 Moloney v Mercer [1971] 2 NSWLR 207 …. 6.47 Morris v R (1987) 163 CLR 454 …. 4.14 Moss v Brown [1979] 1 NSWLR 114 …. 1.60 Mousell Brothers Ltd v London and North-Western Railway Co [1917] 2 KB 836 …. 1.81

Mraz v R (1955) 93 CLR 493 …. 2.33 Mulcahy v R (1868) LR 3 HL 306 …. 10.22, 10.29, 10.31 Muldrock v R (2011) 244 CLR 120; 281 ALR 652; [2011] HCA 39 …. 12.70 Mullins v Lillyman (2007) 70 NSWLR 26; [2007] NSWSC 407 …. 11.65 Murray v R (2002) 211 CLR 193; 189 ALR 40 …. 2.7, 8.39, 8.40

N Nasr v State of New South Wales (2007) 170 A Crim R 78; [2007] NSWCA 101 …. 11.52, 11.71 National Coal Board v Gamble [1959] 1 QB 11 …. 10.18 Neal v R (1982) 149 CLR 305; 42 ALR 609 …. 12.77 — v — (2011) 32 VR 454; 213 A Crim R 190; [2011] VSCA 172 …. 5.41 New South Wales Crime Commission v Vu [2009] NSWCA 349 …. 11.9 Nicholls v R; Coates v R (2005) 219 CLR 196; 213 ALR 1; [2005] HCA 1 …. 12.117, 12.119 Nydam v R [1977] VR 430 …. 2.20, 4.2, 4.3, 4.8, 4.9, 4.11

O O’Connell v R (1844) 11 Cl & F 155; 8 ER 1061 …. 10.24 Okafor v R [2007] NSWCCA 147 …. 11.3 Onourah v R (2009) 76 NSWLR 1; 260 ALR 126 …. 10.16 Orban v Bayliss [2004] NSWSC 428 …. 11.63, 11.65 Osland v R (1998) 197 CLR 316; 159 ALR 170 …. 2.13, 2.29, 10.57 Ostrowski v Palmer (2004) 218 CLR 493; 206 ALR 422 …. 1.85,

1.86 Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388 …. 2.10 Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617 …. 2.10

P Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331 …. 5.32 Papadimitropoulos v R (1957) 98 CLR 249 …. 6.38 Pappajohn v R (1980) 14 CR (3d) 243 …. 1.88 Parker v R (1963) 111 CLR 610 …. 2.27, 3.15, 3.18, 4.11, 8.45 — v — (1964) 111 CLR 665 …. 3.29 Parsons v R (1999) 195 CLR 619; 160 ALR 531 …. 7.11 Peacock v R (1911) 13 CLR 618 …. 8.45 Pearce v R (1998) 194 CLR 610; 156 ALR 684; [1998] HCA 57 …. 12.86, 12.87 Pemble v R (1971) 124 CLR 107 …. 1.89, 2.20, 2.21, 4.2, 4.4, 4.6, 7.38 People v Beardsley 113 NW 1 128 (1907) …. 2.9, 4.14 Perka v R (1985) 13 DLR (4th) 1 …. 9.24 Peters v R (1998) 192 CLR 493; 151 ALR 51; [1998] HCA 7 …. 7.29, 7.30, 7.31, 7.32, 7.44, 7.49, 7.66, 10.19, 10.24, 10.29, 10.31 Petty and Maiden v R (1991) 173 CLR 95 …. 12.150 Plenty v Dillon (1991) 171 CLR 635 …. 11.22, 11.46 Plomp v R (1963) 110 CLR 234 …. 1.73 PNJ v R (2009) 252 ALR 612; 193 A Crim R 54; [2009] HCA 6 …. 12.87

Pointer v United States 151 US 396 (1894) …. 1.73 Pollock v R (2010) 242 CLR 233; 271 ALR 219 …. 3.16 Pommell v R [1995] EWCA Crim 7; [1995] 2 Cr App Rep 607 …. 9.24, 9.27 Potts v R [2012] NSWCCA 229 …. 8.28 PR v R [2015] NSWCCA 215 …. 12.80 Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241; 67 ACSR 692; [2008] NSWCA 204 …. 1.81 Proprietary Articles Trade Association v AG (Canada) [1931] AC 310 …. 1.2, 1.11 Proudman v Dayman (1941) 67 CLR 536 …. 1.88, 6.52 Purves v Inglis (1915) 34 NZLR 1051 …. 6.46

Q Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; [1966] HCA 21 …. 11.7, 11.9 Question of Law (No 1 of 1993) (1993) 59 SASR 214 …. 6.6, 6.38

R R v AB [1941] 1 KB 454; (1941) 65 LT 382 …. 7.12 — v Abdul-Hussain [1998] EWCA Crim 3528; [1999] Crim L R 570 …. 9.10, 9.27 — v Abusafiah (1991) 24 NSWLR 531 …. 9.2, 9.6, 9.7, 9.8, 9.9, 9.11, 9.15, 9.16 — v Ahluwalia (1993) 96 Cr App R 133 …. 3.15 — v Aiken (2005) 63 NSWLR 719; [2005] NSWCCA 328 …. 6.38, 6.39, 6.40

— v Ainsworth (1991) 57 A Crim R 174 …. 11.56, 11.71 — v AJS (2005) 12 VR 563; [2005] VSCA 288 …. 6.10 — v Al-Abodi (District Court, 20 July 2005, 04/21/3379, Goldring DCJ) …. 6.53 — v Anthony [1965] 2 QB 189 …. 10.24 — v Antonelli and Barberi (1905) 70 JP 4 …. 10.18 — v Armstrong [2010] NSWSC 483 …. 12.117 — v Ashwell (1885) 16 QBD 190 …. 7.50, 7.51, 7.52 — v Aston and Burnell (1987) 44 SASR 436 …. 7.29 — v Ayoub [1984] 2 NSWLR 511 …. 3.35, 8.19 — v Azar (1991) 56 A Crim R 414 …. 9.49 — v Bainbridge [1960] 1 QB 129 …. 10.18 — v Banditt (2004) 151 A Crim R 215; [2004] NSWCCA 208 …. 6.19 — v Barbouttis, Dale and Single (1995) 37 NSWLR 256; 82 A Crim R 432 …. 10.27 — v Barlow and Maguire (1962) 79 WN (NSW) 756 …. 10.73 — v Barrass [2005] NSWCCA 131 …. 6.47 — v Bedford [2007] SASC 276 …. 7.41 — v Bellchambers [2008] NSWCCA 235 …. 8.61 — v Bernhard [1938] 2 QB 264 …. 7.38 — v Bertrand (2008) 20 VR 222; [2008] VSCA 182 …. 12.123 — v Beserick (1993) 30 NSWLR 510 …. 6.6 — v Bingapam (1975) 11 SASR 469 …. 2.13 — v Blacklidge (CCA, 12 December 1995, unreported) …. 9.49

— v Blayney (2003) 87 SASR 354; [2003] SASC 405 …. 6.6, 6.33, 6.36 — v Boden (1844) 1 C & K 395 …. 7.38 — v Bonollo [1981] VR 633 …. 7.29 — v Bonora (1994) 35 NSWLR 74 …. 6.48 — v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 …. 4.6 — v Bourne [1938] 3 All ER 615; [1939] 1 KB 687 …. 9.27 — v Bowen [1996] EWCA Crim 1792; [1996] 2 Cr App R 157 …. 9.11 — v Brisac and Scott (1803) 4 East 164; 102 ER 792 …. 10.37 — v Brougham (1986) 43 SASR 187 …. 10.66 — v Brow [1981] VR 783 …. 7.29 — v Brown (1984) 58 ACTR 33 …. 4.2 — v — [1993] 2 All ER 75; [1993] 2 WLR 556 …. 3.23, 5.31, 5.32, 5.33, 5.34, 5.36, 5.38, 5.39, 5.41, 5.45 — v — [1994] 1 AC 212 …. 5.31, 5.32, 5.33, 5.34, 5.36, 5.38, 5.39, 5.41, 5.45 — v Bruce (1847) 2 Cox CC 262 …. 5.32 — v Buckett (1995) 79 A Crim R 302 …. 7.38 — v Bugg [1978] VR 251 …. 10.7 — v Bull and Schmidt (1845) 1 Cox CC 281 …. 10.37 — v Bullock (1868) LR 1 CCR 115 …. 5.27 — v Burgess; R v Saunders [2005] NSWCCA 52 …. 9.42 — v Burke [1983] 2 NSWLR 93 …. 2.29 — v Butcher [1986] VR 43 …. 2.13 — v Butt (1884) 15 Cox CC 564 …. 10.37

— v Button (2002) 54 NSWLR 455 …. 10.66 — v Cairns [1999] 2 Cr App Rep 137; [1999] EWCA Crim 468 …. 9.26 — v Caldwell [1982] AC 341 …. 6.17 — v Camplin (1845) 1 Cox CC 220 …. 6.36 — v Carr (1972) 1 NSWLR 608 …. 11.64 — v Carroll [2001] QCA 394 …. 12.90 — v — (2002) 213 CLR 635; 194 ALR 1; [2002] HCA 55 …. 1.53, 12.88, 12.90, 12.92 — v Carter [1959] VR 105 …. 8.63 — v Cato [1976] 1 WLR 110 …. 2.12, 2.13 — v Catt [2005] NSWCCA 279 …. 12.82 — v Chai (2002) 76 ALJR 628; 128 A Crim R 101 …. 4.17 — v Chan-Fook [1994] 1 WLR 691 …. 3.23 — v Chant (NSWCCA, 12 June 1988, unreported) …. 6.33, 6.34 — v Charlotte Smith (1865) 10 Cox CC 82; Le & Ca 607; 169 ER 1533 …. 4.14 — v Chayna (1993) 66 A Crim R 178 …. 8.17 — v Cheatham [2000] NSWCCA 282 …. 8.16, 8.18, 8.24 — v — (No 2) [2002] NSWCCA 360 …. 8.25 — v Chhay (1994) 72 A Crim R 1 …. 3.15, 3.16 — v Chonka [2000] NSWCCA 466 …. 6.47 — v Christov [2006] NSWSC 972 …. 8.24, 8.26, 8.27 — v Church [1966] 1 QB 59 …. 4.2 — v Churchill [1967] 2 AC 224 …. 10.18, 10.31

— v Cioban [2002] NSWSC 972 …. 9.49 — v Clarence [1886–90] All ER Rep 133; (1888) 22 QBD 23 …. 5.32, 5.40, 6.38 — v Clark (NSWCCA, 17 April 1998, unreported) …. 6.6, 6.12, 6.13 — v Clarke [1959] VR 645 …. 4.14 — v — (1997) 97 A Crim R 414 …. 12.148 — v CLD [2015] NSWCCA 114 …. 10.67 — v Clough (1992) 28 NSWLR 396 …. 10.56, 10.61 — v Cole [1994] Crim LR 582 …. 9.27 — v Coleman (1990) 19 NSWLR 467 …. 2.33, 5.29, 5.31, 8.45, 8.60 — v Collins (2002) 127 A Crim R 95 …. 11.75 — v Conde (1867) 10 Cox CC 547 …. 2.9, 4.14 — v Coney (1882) 8 QBD 534 …. 5.32 — v Conlon (1993) 69 A Crim R 92 …. 9.41, 9.44 — v Conway (1989) 88 Cr App Rep 159 …. 9.24 — v Cooke (1985) 16 A Crim R 304 …. 3.22 — v Cornelissen [2004] NSWCCA 449 …. 4.4 — v Coslet (1782) 1 Leach 236; 168 ER 220 …. 7.8 — v Coulstock (1998) 99 A Crim R 143 …. 12.138 — v Court [1989] 1 AC 28 …. 6.46 — v Coventry (1938) 59 CLR 633 …. 5.9, 10.18 — v Cowan [1955] VLR 18 …. 4.14 — v Crabbe (1985) 156 CLR 464; 58 ALR 417; 16 A Crim R 19; [1985] HCA 22 …. 1.71, 2.7, 2.20, 2.21, 2.22, 5.23, 5.29, 5.43, 5.44, 6.16, 8.59, 10.18

— v Craig (Abadee J, 14 April 1993, unreported) …. 12.73 — v CRH (18 December 1996, unreported) …. 1.80 — v Croft [1944] KB 295 …. 10.69 — v Crofts (Grove J, 6 December 1996, unreported) …. 12.73 — v Cullum (1873) LR 2 CCR 28 …. 7.64 — v Cunningham [1957] 2 QB 396 …. 2.33, 5.29 — v Cuthbertson [1981] AC 470 …. 10.24 — v Dalby [1982] 1 All ER 916 …. 2.12, 4.4 — v Daley (1879) 2 SCR (NS) (NSW) 151 …. 7.9, 7.12 — v Dalley (2002) 132 A Crim R 169 …. 11.55 — v Daly [1968] VR 257 …. 6.19 — v Darby (1982) 148 CLR 668 …. 10.29 — v Davenport [1954] 1 All ER 602; [1954] 1 WLR 569 …. 7.13 — v Davidson [1969] VR 667 …. 9.29 — v Davis (1998) 100 A Crim R 573 …. 3.25 — v Dee (1884) 14 LR Ir 468 …. 6.38 — v Demirian [1989] VR 97; 33 A Crim R 441 …. 2.10, 10.67 — v Derbin [2000] NSWCCA 361 …. 8.63 — v Dib (2002) 134 A Crim R 329 …. 3.28 — v Dillon (1878) 1 SCR (NS) (NSW) 159 …. 7.38 — v DMC (2002) 137 A Crim R 246 …. 5.22 — v Donovan [1934] 2 KB 498; [1934] All ER Rep 207 …. 3.23, 5.32 — v Douglas [1958] VR 721 …. 6.53 — v Downs (1985) 3 NSWLR 312 …. 2.29, 3.7

— v Dudley and Stephens (1884) 14 QBD 273 …. 9.17, 9.24, 9.27 — v Duke [2000] SASC 254 …. 9.49 — v Dungay (2001) 126 A Crim R 216; [2001] NSWCCA 443 …. 11.56 — v Duong (1992) 61 A Crim R 140 …. 4.17 — v Duru & Asghar [1974] 1 WLR 2 …. 7.68 — v Dykyj (1993) 29 NSWLR 672 …. 1.71 — v Eagleton (1855) Dears CC 515 …. 10.7, 10.11 — v Edwards [1988] VR 481 …. 7.29 — v El Azzi (2001) 125 A Crim R 113 …. 10.21, 10.27 — v — [2004] NSWCCA 455 …. 10.27 — v Ellis (2003) 58 NSWLR 700 …. 12.95 — v Emmet [1999] EWCA Crim 1710 …. 5.34, 5.35, 5.38, 5.39 — v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27 …. 12.96 — v Evans and Gardiner (No 2) [1976] VR 523 …. 2.13 — v F (1996) 40 NSWLR 245 …. 2.17 — v Falconer (1990) 171 CLR 30 …. 8.6, 8.9, 8.39, 8.43, 8.44, 8.45, 8.46 — v Farrar (1991) 53 A Crim R 387 …. 9.52 — v Feely [1973] QB 530 …. 7.27, 7.28, 7.29, 7.66 — v Fernando (1997) 95 A Crim R 533 …. 12.73 — v Flattery (1877) 2 QBD 410 …. 6.38 — v Francis (1988) 88 Cr App R 127 …. 6.45, 6.47 — v — [1993] 2 Qd R 300 …. 6.33, 6.35, 6.36

— v Franklin (1883) 15 Cox CC 163 …. 4.2 — v Fraser [2005] NSWCCA 77 …. 12.72 — v Fuge (2001) 123 A Crim R 310; [2001] NSWCCA 208 …. 7.38, 7.40, 7.41, 7.42 — v Fulling [1987] QB 426; [1987] EWCA Crim 4 …. 12.123 — v G [2005] NSWCCA 291 …. 11.65 — v Garforth [1964] Crim LR 936 …. 4.2 — v — (NSWCCA, 23 May 1994, unreported) …. 12.73 — v Gazdovic [2002] VSC 588 …. 9.49 — v Ghosh [1982] QB 1053; [1982] EWCA Crim 2 …. 7.27, 7.28, 7.29, 7.32, 7.33, 7.66 — v Gibbins and Proctor (1918) 13 Cr App R 134 …. 2.8, 2.9, 4.14 — v Gieselmann (CCA, 12 November 1996, unreported) …. 8.25 — v Gill [1963] 1 WLR 841 …. 8.45 — v Gillard (1999) 105 A Crim R 479; [1999] NSWCCA 21 …. 6.45, 6.47 — v Glenister [1980] 2 NSWLR 597 …. 7.22, 7.26, 7.35 — v Gorrie (1918) 83 JP 136 …. 1.80 — v Gotts [1992] 2 AC 412 …. 9.21, 9.22 — v Grant (2002) 55 NSWLR 80; 131 A Crim R 510 …. 2.21, 8.59 — v Greenstein [1975] 1 WLR 1353 …. 7.29 — v Gregory (1867) LR 1 CCR 77 …. 7.38 — v Griffiths [1966] 1 QB 589 …. 10.24 — v Grimes and Lee (1894) 15 NSWR 209 …. 2.10

— v Grondkowski [1946] KB 369 …. 1.60 — v Gunn (1930) 30 SR (NSW) 336 …. 10.19 — v Hall (1828) 3 C & P 409; 172 ER 477 …. 7.37 — v — (1961) 45 Cr App R 366 …. 4.2 — v — [2001] NSWCCA 202 …. 3.26 — v Hallett [1969] SASR 141 …. 2.13, 2.20 — v Halliday (1889) 61 LT 701 …. 2.10 — v Hancock [1986] AC 455 …. 8.59 — v Hands (1887) 16 Cox CC 188 …. 7.16 — v Harkin (1989) 38 A Crim R 296 …. 6.45, 6.46 — v Harris (Vic CA, 13 February 1997, unreported) …. 7.29 — v — (2000) 50 NSWLR 409; [2000] NSWCCA 469 …. 12.73 — v Hasan [2005] 2 Crim App 314 …. 9.9 — v Hawes (1994) 35 NSWLR 294 …. 9.41 — v Hawi (No 10) [2011] NSWSC 1656 …. 12.42 — v Hempstead (1818) Russ & RyCroCas 344; 168 ER 837 …. 10.24 — v Hemsley (1988) 36 A Crim R 334 …. 5.23, 6.12, 6.16, 6.17, 6.19 — v Hennigan [1971] 3 All ER 133 …. 2.13 — v Henning (NSWCCA, 11 May 1990, unreported) …. 6.6, 6.17 — v Higgins (1801) 2 East 5; 102 ER 269 …. 10.7 — v Hill (1980) 3 A Crim R 397 …. 3.15 — v — [1986] 1 SCR 313; (1986) 25 CCC (3d) 322 …. 3.18 — v Hoar [1965] NSWR 1167 …. 11.39

— v Holzer [1968] VR 481 …. 4.2 — v Hore; R v Fyffe [2005] NSWCCA 3 …. 10.60 — v Horsey (1862) 3 F & F 287; 176 ER 129 …. 2.29 — v Horton (1998) 45 NSWLR 426; 104 A Crim R 306 …. 12.96, 12.117 — v Howarth (1828) 1 Mood 207 …. 11.40 — v Howe (1958) 100 CLR 448; [1958] ALR 753 …. 11.48 — v Howe; R v Bannister; R v Burke; R v Clarkson [1987] AC 417 …. 7.38, 9.17, 9.21, 9.22, 9.27 — v Howes (1971) 2 SASR 293 …. 10.24 — v Howlett [1968] Crim LR 222 …. 7.9 — v Hucker [2002] NSWSC 1068 …. 8.28 — v Hudson; R v Taylor [1971] 2 QB 202 …. 9.6 — v Hurley and Murray [1967] VR 526 …. 9.6, 9.7 — v Hurst [1995] 1 Cr App Rep 82 …. 9.27 — v Hutty [1953] VR 338 …. 2.14, 2.15, 2.17 — v Hyam [1975] AC 55 …. 2.20, 6.16 — v Iannazzone [1983] 1 VR 649 …. 3.28 — v Iby (2005) 63 NSWLR 278; [2005] NSWCCA 178 …. 2.15, 2.17, 2.18 — v IL [2016] NSWCCA 51 …. 2.30, 2.33, 4.13, 10.67 — v Instan [1893] 1 QB 450 …. 2.9, 4.14 — v Inwood [1973] 2 All ER 645 …. 11.38 — v Irani [2001] NSWSC 475 …. 12.73 — v Ireland (1970) 126 CLR 321 …. 11.65, 12.104, 12.140, 12.141

— v Jacobs and Mehajer (2004) 151 A Crim R 452; [2004] NSWCCA 462 …. 2.29, 10.66 — v Jakac [1961] VR 367 …. 2.20 — v Janceski (2005) 64 NSWLR 10 …. 11.65, 12.44 — v Jenkins (1963) 64 SR(NSW) 20 …. 8.63 — v Jogee [2016] UKSC 8; [2016] WLR(D) 84 …. 10.65 — v Johns [1978] 1 NSWLR 282 …. 10.51, 10.52, 10.55 — v Jones (1988) 144 LSJS 58 …. 4.2 — v — (1995) 38 NSWLR 652 …. 4.7 — v — [2000] NSWCCA 186 …. 10.19, 10.26 — v Joukhadar (NSWCCA, 13 June 1975, unreported) …. 2.9, 4.14 — v JS (2007) 230 FLR 276; 175 A Crim R 108; [2007] NSWCCA 272 …. 12.92 — v Kaewklom (No 1) [2012] NSWSC 1103 …. 12.32 — v Kaldor (2004) 150 A Crim R 271 …. 10.40 — v Kanaan [2005] NSWCCA 385 …. 10.62, 10.68 — v Kane [2001] NSWCCA 150 …. 11.40, 11.56 — v — (2004) 144 A Crim R 496 …. 11.66 — v Kastratovic (1985) 19 A Crim R 28 …. 7.38 — v Katarzynski [2002] NSWSC 613 …. 9.39, 9.41, 9.43, 9.44, 9.45, 9.46 — v — [2005] NSWCCA 72 …. 2.7, 8.38, 8.39, 9.42 — v Keir (2000) NSWSC 111 …. 12.73 — v Kelly [1923] VLR 704 …. 4.14 — v Kemp [1957] 1 QB 399 …. 8.63

— v Kennedy (No 2) [2008] AC 269 …. 2.12, 10.67 — v Kenney [1983] 2 VR 470 …. 3.26, 3.27 — v Khazaal (2012) 289 ALR 586; [2012] HCA 26 …. 10.4 — v Khouzame [2000] NSWCCA 505 …. 12.119 — v Kimber [1983] 3 All ER 316; [1983] 1 WLR 1118 …. 6.6, 6.17, 6.48 — v King (2003) 59 NSWLR 472; [2003] NSWCCA 339 …. 2.15, 5.28 — v Kirshaw (1902) 18 TLR 357 …. 1.80 — v Kitchener (1993) 29 NSWLR 696 …. 6.6, 6.17, 6.19, 6.49 — v Knight (1988) 35 A Crim R 314 …. 5.8, 5.31 — v — (aka Black) (2001) 120 A Crim R 381 …. 11.61 — v Kumar (2002) 5 VR 193; 133 A Crim R 245 …. 3.29 — v Kurtic (1996) 85 A Crim R 57 …. 9.46 — v L (1991) 174 CLR 379; 103 ALR 577 …. 6.5 — v Lainson (21 June 1995, unreported) …. 8.15, 8.46 — v Lamb [1967] 2 QB 981 …. 4.6 — v Landy [1981] 1 WLR 355 …. 7.29 — v Lang (1975) 62 Cr App R 50 …. 6.36 — v Larkin [1943] 1 All ER 217; [1943] KB 174; (1942) 29 Cr App R 18 …. 4.2, 4.6 — v Lavallee (1990) 76 CR (3d) 329 …. 3.15 — v Lavender (2005) 222 CLR 67; 218 ALR 521; [2005] HCA 37 …. 2.4, 2.12, 4.11, 4.12 — v Lawford (1993) 61 SASR 542 …. 2.9 — v Lawrence [1980] 1 NSWLR 122 …. 8.45, 9.6

— v — [1982] AC 510 …. 6.17 — v — [1997] 1 VR 459 …. 7.29, 7.44 — v Lee (1950) 82 CLR 133 …. 12.100, 12.149 — v — [2006] NZCA 60 …. 5.36, 5.37, 5.39, 5.41 — v Leoni [1999] NSWCCA 14 …. 10.66 — v Levy [1912] 1 KB 158 …. 10.73 — v LK; R v RK (2010) 241 CLR 177; 266 ALR 399 …. 10.31, 12.92 — v Lockyer (1996) 89 A Crim R 457 …. 12.129 — v Lopatta (1983) 35 SASR 101 …. 7.38 — v Loughnan [1981] VR 443 …. 9.25, 9.27 — v Love (1989) 17 NSWLR 608 …. 7.27, 7.28, 7.29, 7.38 — v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120 …. 4.18 — v Lowe (1850) 4 Cox CC 449; 3 Car & Kir 123; 175 ER 489 …. 2.9, 4.14 — v — [1973] QB 702 …. 4.14 — v Lowery & King (No 2) [1972] VR 560 …. 10.55, 10.56, 10.57 — v Lynsey [1995] 3 All ER 654 …. 5.3 — v M (1977) 16 SASR 589 …. 1.80 — v MacDonald [1983] 1 NSWLR 729 …. 7.14, 7.22, 7.45 — v Mack [1988] 2 SCR 903 …. 12.137 — v Macleod (2001) 52 NSWLR 389 …. 7.44 — v Maher [1987] 1 Qd R 171 …. 7.29 — v Mai (1992) 26 NSWLR 371 …. 10.8, 10.9, 10.10, 10.11, 10.14

— v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155 …. 8.31 — v Majdalawi (2000) 113 A Crim R 241; [2000] NSWCCA 240 …. 8.28 — v Majewski [1977] AC 443 …. 8.54, 8.55 — v Makisi [2004] NSWCCA 333 …. 8.60, 8.61 — v Malone [1998] 2 Cr App R 447 …. 6.36 — v Manson (NSWCCA, 17 February 1993, unreported) …. 6.46 — v Markarian (2003) 137 A Crim R 497 …. 12.46 — v Marriott (1838) 8 Car & P 425; 173 ER 559 …. 2.9, 4.14 — v Martyr [1962] Qd R 398 …. 4.2 — v Masters (1992) 26 NSWLR 450 …. 10.20 — v Matheson [1958] 1 WLR 474 …. 8.63 — v Mawgridge (1706) Kel 119; 84 ER 1107 …. 3.15 — v Maxwell [1978] 1 WLR 1350; [1978] 3 All ER 1140 …. 10.18 — v Mayers (1872) 12 Cox CC 311 …. 6.36 — v McCallum [1969] Tas SR …. 4.2 — v McEwan [1979] 2 NSWLR 926 …. 6.16, 6.22 — v McIvor [1982] 1 WLR 409 …. 7.29 — v McKay [1957] VR 560; [1957] ALR 648 …. 11.48 — v McPhail (1988) 36 A Crim R 390 …. 11.64 — v Meddings [1966] VR 306 …. 8.63 — v Merritt [2002] NSWCCA 368 …. 11.47 — v — (2004) 59 NSWLR 557; [2004] NSWCCA 19 …. 12.73

— v Middleton (1873) LR 2 CCR 38 …. 7.50, 7.51, 7.52 — v Milhailovic, Howard, Morgan and Young (BadgeryParker J, 15 April 1991, unreported) …. 12.73 — v M’Naghten (1843) 10 Cl & F 200; [1843–60] All ER Rep 229 …. 8.9, 8.10, 8.12, 8.13, 8.14, 8.15, 8.16, 8.30, 8.35, 8.45, 8.46, 8.47, 8.63 — v Moffatt (2000) 112 A Crim R 201; [2000] NSWCCA 174 …. 2.13 — v Mohan [1967] AC 187 …. 2.29 — v — [1976] QB 1 …. 10.17 — v Moloney [1985] AC 905 …. 8.59 — v Moore [2015] NSWDC 315 …. 7.17, 7.69, 7.71, 7.72 — v Morgan [1970] VR 337 …. 6.6, 6.16 — v — (1993) 30 NSWLR 543 …. 8.59 — v Morris (1840) 9 C & P 349; 173 ER 864 …. 7.12 — v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97 …. 5.8 — v MSK and MAK (2004) 61 NSWLR 204; [2004] NSWCCA 308 …. 6.55 — v Mueller (2005) 62 NSWLR 476; [2005] NSWCCA 479 …. 6.6, 6.11, 6.12, 6.13, 6.15, 6.16, 6.17, 6.50 — v Murphy (1837) 8 Car & P 297; 173 ER 502 …. 10.24 — v Naa (2009) 76 NSWLR 271; 197 A Crim R 192; [2009] NSWSC 851 …. 12.117, 12.118 — v Newman [1948] VLR 61; (1948) 1 ALR 109 …. 5.27, 9.52 — v Nguyen [2001] NSWCCA 132 …. 10.8, 10.14 — v — [2002] NSWSC 536 …. 9.49 — v Nicholls (1874) 13 Cox CC 75 …. 2.9, 4.14

— v Nundah (1916) 16 SR (NSW) 482 …. 7.38 — v Nuri [1990] VicRp 55; [1990] VR 641 …. 5.29 — v O’Brien [2003] NSWCCA 121 …. 9.9, 9.13 — v O’Connor (1980) 146 CLR 64 …. 8.45, 8.53, 8.55, 8.57, 8.59 — v O’Donnell [2002] SASC 183 …. 9.49 — v O’Donoghue (1988) 34 A Crim R 397 …. 11.39, 12.119 — v Olugboja [1982] QB 320 …. 6.38 — v O’Neill [1996] 2 Qd R 326 …. 12.104 — v — (2001) 122 A Crim R 510 …. 11.46 — v Orsos (1997) 95 A Crim R 457 …. 6.47 — v Owen Stolpe (NSWCCA, 30 October 1996, unreported) …. 7.68 — v Page [1933] VLR 351 …. 10.11 — v Palmer and Hudson (1804) 1 Bos & Pul 96; 127 ER 395 …. 10.37 — v Peckover (2002) 135 A Crim R 401 …. 10.15 — v Perera [1907] VLR 240 …. 10.7 — v Perks (1986) 41 SASR 335 …. 4.2 — v Perry (1845) 1 Car & Kir 726; 174 ER 1008 …. 7.12 — v Phan (2001) 53 NSWLR 480; [2001] NSWCCA 29 …. 10.41, 10.43, 10.61 — v Phillips (1971) 45 ALJR 467 …. 5.7, 5.31 — v Pimentel [1999] NSWCCA 401 …. 9.8, 9.9 — v Pocock (1851) 5 Cox CC 172 …. 4.14 — v Porter (1933) 55 CLR 182 …. 8.9, 8.13, 8.14, 8.16, 8.29, 8.35, 8.63

— v Potisk (1973) 6 SASR 389 …. 7.51, 7.52 — v Prasad (1979) 23 SASR 161 …. 12.45 — v Presser [1958] VR 45 …. 8.31, 8.32 — v Priestley (1965) 51 Cr App R 1 …. 12.123 — v Prince (1868) LR 1 CCR 150 …. 7.52 — v Prochilo [2003] NSWCCA 265 …. 10.59 — v Puckeridge (1999) 74 ALJR 373 …. 2.13 — v Pullman (1991) 25 NSWLR 89; 58 A Crim R 222 …. 1.14, 4.6 — v Quartly (1986) 11 NSWLR 332 …. 3.25, 3.28 — v Quick [1973] QB 910 …. 8.63 — v Radford (1985) 42 SASR 266; 20 A Crim R 388 …. 8.41, 8.45, 8.46 — v Ragen (1964) 81 WN (Pt 1) (NSW) 572 …. 12.109 — v Rau [1972] Tas SR 59 …. 4.6 — v Rees [2001] NSWCCA 23 …. 4.17 — v Reid [1992] 1 WLR 793 …. 5.43, 6.17 — v Richards (1877) 2 QBD 311 …. 10.74 — v — [1974] QB 776 …. 7.38 — v Rivkin (2004) 59 NSWLR 284 …. 8.32 — v Robert Millar Ltd [1970] 2 QB 54 …. 10.18 — v Rogers (1996) 86 A Crim R 542 …. 9.9, 9.25 — v Rogerson (1992) 174 CLR 268; 107 ALR 225 …. 10.22 — v Rondo (2001) 126 A Crim R 562; [2001] NSWCCA 540 …. 11.8, 11.9, 12.145 — v Rooke (NSWCCA, 2 September 1997, unreported) ….

12.125, 12.139 — v Royle [1971] 1 WLR 1764 …. 7.29 — v Runjanjic (1991) 56 SASR 114; 53 A Crim R 362 …. 9.9, 9.13 — v Rushworth (1992) 95 Cr App R 252 …. 2.33 — v Russell [1933] VLR 59 …. 4.14, 10.18, 10.41, 10.51 — v Ryan (1995) 90 A Crim R 191 …. 8.25, 8.28 — v S [1979] 2 NSWLR 1 …. 8.45 — v SA, DD and ES [2011] NSWCCA 60 …. 11.64 — v Safwan (1986) 8 NSWLR 97 …. 2.33 — v Salvo [1980] VR 401 …. 7.27, 7.29, 7.38 — v Sanders (1991) 57 SASR 102 …. 7.38 — v Sault Ste Marie [1978] 2 SCR 1299 …. 1.88 — v Savage; R v Parmenter [1992] 1 AC 699 …. 5.3 — v Saylor [1963] QWN 14 …. 10.69 — v Schneidas (No 2) (1981) 4 A Crim R 101 …. 3.7 — v Scofield (1784) Cald Mag Cas 397 …. 10.7 — v Scott [1975] AC 819 …. 7.29 — v See Lun & Welsh (1932) 32 SR (NSW) 363 …. 7.38 — v Senior [1899] 1 QB 283 …. 4.14 — v Sergi [1974] VR 1 …. 2.20, 2.25 — v Serratore (1999) 48 NSWLR 101 …. 12.129 — v Sew Hoy [1994] 1 NZLR 257 …. 10.27 — v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 …. 12.132 — v Sharma (2002) 54 NSWLR 300 …. 12.46, 12.50

— v Sharmpal Singh [1962] AC 188 …. 4.2 — v Sharp (2003) 143 A Crim R 344; [2003] NSWSC 1117 …. 12.117 — v Shepherd (1862) Le & Ca 147; 169 ER 1340 …. 2.9, 4.14 — v — [2003] NSWCCA 351 …. 5.27 — v Sheppard [1981] AC 394 …. 4.14 — v Shivpuri [1987] AC 1; [1986] 2 All ER 334; [1986] 2 WLR 988 …. 10.7, 10.27 — v Singh-Bal (1997) 92 A Crim R 397 …. 12.129 — v Sloane (1990) 49 A Crim R 270 …. 12.137 — v Smart [1983] 1 VR 265 …. 7.29 — v Smith (1837) 8 Carrington & Payne 173 …. 5.27 — v — [1959] 2 QB 35 …. 2.13 — v Smith (Sydney) (1845) 1 Cox CC 260 …. 1.80 — v Snow (1915) 20 CLR 315 …. 12.92 — v Solomon [1979] 1 NSWLR 321 …. 2.22 — v Sperotto (1970) 71 SR (NSW) 334 …. 6.16, 6.19, 6.22 — v St George (1840) 9 C & P 483 …. 5.6 — v Stanley [1965] 2 QB 327 …. 6.47 — v Stokes and Difford (1990) 51 A Crim R 25 …. 2.27, 4.7, 7.38, 10.41, 10.43, 10.56, 10.61 — v Stone [1977] QB 354; [1977] 2 All ER 341 …. 2.8, 4.14 — v — [1981] VR 737 …. 10.74, 10.75 — v Stones (1955) 56 SR (NSW) 25 …. 8.63 — v Sullivan [1984] AC 156 …. 8.45 — v Swaffield; Pavic v R (1998) 192 CLR 159; [1998] HCA 1

…. 12.104, 12.105, 12.122, 12.123, 12.138, 12.139, 12.146, 12.148, 12.149 — v Szabo [2000] NSWCCA 226 …. 3.30 — v Taber; R v Styman [2002] NSWSC 1329 …. 2.9 — v Taktak (1988) 14 NSWLR 226 …. 2.9, 4.14, 4.15 — v Tangye (1997) 92 A Crim R 545 …. 10.48, 10.56, 10.57, 10.59 — v Taouk (1992) 65 A Crim R 307 …. 10.15 — v — (2005) 154 A Crim R 69; [2005] NSWCCA 155 …. 12.117, 12.119, 12.121 — v Taufahema (2007) 228 CLR 232; 234 ALR 1 …. 10.64, 10.65 — v Tevendale [1955] VLR 95 …. 10.74 — v Thomas (2006) 14 VR 475; [2006] VSCA 165 …. 12.99, 12.100, 12.123 — v Thompson (1825) 1 Mood CC 78; 168 ER 1192 …. 7.8, 12.100 — v Thomson (2000) 49 NSWLR 383 …. 12.49 — v Thurborn (1849) 1 Den 387; 169 ER 293 …. 7.45 — v Thurston [2004] NSWCCA 98 …. 2.30 — v Tillett; Newton, Ex parte (1969) 14 FLR 101 …. 11.9, 11.21 — v Tinkler (1859) 1 F & F 513; 175 ER 832 …. 7.42 — v Tofilau (No 2) (2006) 13 VR 28 …. 12.100 — v Tolmie (1995) 37 NSWLR 660 …. 6.6, 6.12, 6.16, 6.17, 6.18, 6.19, 6.49 — v Tolson (1889) 23 QBD 168 …. 1.88, 1.89, 6.10, 7.44, 8.45 — v Trevenna (2004) 149 A Crim R 505; [2004] NSWCCA 43 …. 9.49

— v Trilloe (1842) Car & M 650; 175 ER 674 …. 2.17 — v Trindall (2002) 133 A Crim R 119 …. 12.57 — v Tripodina (1988) 35 A Crim R 183 …. 6.34, 7.38 — v Trotter (1993) 35 NSWLR 428; 68 A Crim R 536 …. 8.22, 8.28 — v Truong (NSWCCA, 22 June 1998, unreported) …. 10.70 — v Tsigos [1964–5] NSWR 1607 …. 8.45 — v Turnbull (1943) 44 SR (NSW) 108 …. 1.85, 1.88 — v Turner [1962] VR 30 …. 11.48 — v Twala (4 November 1994, unreported) …. 12.73 — v Ul-Haque (2007) 177 A Crim R 348; [2007] NSWSC 1251 …. 12.123 — v Venna [1976] QB 421; [1975] 3 All ER 788 …. 5.9, 5.23 — v Wade (1869) 11 Cox CC 549 …. 7.38 — v Wakefield (1958) 75 WN (NSW) 66 …. 8.41 — v Wald (1971) 3 DCR (NSW) 25 …. 9.29, 9.30 — v Walsh and Harney [1984] VR 474 …. 7.29 — v Ward (1938) 38 SR (NSW) 30 …. 7.73 — v Warner [1969] 2 AC 256 …. 1.88 — v Waterfall [1970] 1 QB 148 …. 7.29 — v Watson (1959) 43 Cr App R 111 …. 4.14 — v Way (2004) 60 NSWLR 168 …. 12.70 — v Welsh (1995) 101 CCC (3d) 216 …. 5.45 — v Whelan [1973] VR 268 …. 6.48 — v White [2005] NSWSC 60 …. 11.66 — v White, Eaves and Parker (1989) 17 NSWLR 195 …. 2.20

— v Whitfield [2002] NSWCCA 501 …. 8.40 — v Willer (1986) 83 Cr App R 225 …. 9.24 — v Williams [1923] 1 KB 340 …. 6.38 — v — [1965] Qd R 86 …. 10.11 — v — (1990) 50 A Crim R 213 …. 5.23, 5.25 — v — (1997) 97 A Crim R 119 …. 9.9 — v Williamson [1972] 2 NSWLR 281 …. 9.6 — v Willmot (No 2) [1985] 2 Qd R 413 …. 1.75, 5.43 — v Wills [1983] 2 VR 201 …. 4.2 — v Wilson (1874) 12 SCR (NSW) 258 …. 7.9 — v — (1991) 53 A Crim R 281 …. 4.2, 4.3, 4.8 — v — (NSWCCA, 12 August 1994, unreported) …. 10.21 — v — [1996] 3 WLR 125; [1996] 2 Cr App R 241 …. 5.34, 5.38, 5.39, 5.45 — v Windsor [1982] VR 89 …. 2.20 — v Wybrow (1951) 35 Cr App R 141 …. 10.17 — v Young (1947) 48 SR (NSW) 46; 64 WN (NSW) 193 …. 7.9 — v Youssef (1990) 50 A Crim R 1 …. 8.6, 8.45, 8.46 — v Zhang [2000] NSWSC 1099 …. 12.123, 12.126 — v Zorad [1979] 2 NSWLR 764 …. 6.19, 6.31, 8.62 — v — (1990) 19 NSWLR 91; 47 A Crim R 211 …. 11.51 R (A Child) v Whitty (1993) 66 A Crim R 462 …. 1.80 R and The Minister for Customs v Australasian Films (1921) 29 CLR 195 …. 1.81 Rawlings v Till (1837) 3 M & W 28; 150 ER 1042 …. 5.21 Revell v R (NSWCCA, 17 December 1976, unreported) ….

5.23 Rice v McDonald (2000) 113 A Crim R 75 …. 9.9 — v Tricouris (2000) 110 A Crim R 86 …. 12.137 Richards v Kerrison [2013] ACTMC 15 …. 7.40 Ridgeway v R (1995) 184 CLR 19; 129 ALR 41 …. 1.53, 12.104, 12.137 Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426 …. 12.137 Rogers v R (1994) 181 CLR 251 …. 12.88 Roper v Taylor’s Central Garages (Exeter) Ltd [1951] 2 TLR 284 …. 10.18 Royall v R (1991) 172 CLR 378; 100 ALR 669; [1991] HCA 27 …. 2.7, 2.10, 2.11, 2.12, 2.13, 2.21, 2.33, 4.2 Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 …. 11.9 Russell v Smith [1958] 1 QB 27 …. 7.52 Ryan v R (1967) 121 CLR 205 …. 2.7, 2.29, 2.30, 4.11, 6.10, 8.38, 8.39, 8.45

S Saffron v DPP (1989) 16 NSWLR 397 …. 12.23 Saraswati v R (1990–91) 172 CLR 1 …. 6.47 Semayne’s Case (1604) 5 Co Rep 919; 77 ER 194 …. 11.19, 11.45 Shaw v Donaldson (1988) 78 ACTR 1 …. 11.71 Sherras v De Rutzen [1895] 1 QB 918 …. 1.88 Shields v New South Wales Crime Commission [2007] NSWCA 309 …. 7.53, 7.54, 7.55, 7.70 — v Westpac Banking Corp [2008] NSWCA 268 …. 7.53, 7.55

Sinclair v Brougham [1914] AC 398 …. 7.52 Skondin v R [2005] NSWCCA 417 …. 12.32 Smithers v R (1977) 34 CCC (2d) 427 …. 2.13 Smyth v R (1957) 98 CLR 163 …. 2.27, 8.45, 8.59 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 …. 12.20 South v R [2007] NSWCCA 117 …. 6.22 Southwark LBC v Williams [1971] 1 Ch 734 …. 9.25, 9.27 Stanton v R (2003) 198 ALR 1 …. 3.7 Stapleton v R (1952) 86 CLR 358 …. 2.27, 8.45, 8.59 State of New South Wales v Corbett (2007) 230 CLR 606; 237 ALR 39; [2007] HCA 32 …. 11.21 — v Delly (2007) 70 NSWLR 125; [2007] NSWCA 303 …. 11.40, 11.41, 11.42 —v McCarthy [2015] NSWCA 153 …. 11.44 State of Wisconsin v Cornelius 152 WIS.2d 272 (1989) …. 2.17 Stingel v R (1990) 171 CLR 312; 97 ALR 1 …. 3.15, 3.18, 3.19, 3.20, 3.28, 9.9 Sweet v Parsley [1970] AC 132 …. 1.88

T Taber v R; Styman v R (2007) 170 A Crim R 427 …. 2.9 Tan v R [2010] NSWCCA 207 …. 12.73 Taufahema v R [2006] NSWCCA 152 …. 4.17, 10.62, 10.64, 10.68 Taylor v Chief Constable of Thames Valley Police [2004] 1 WLR 3155; [2004] EWCA Civ 858 …. 11.40, 11.41 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 …. 1.81

Thomas v Mowbray (2007) 233 CLR 307 …. 1.46 — v R (1960) 102 CLR 584; [1960] HCA 2 …. 1.50, 1.89, 2.27, 4.7, 6.10, 6.30, 8.45 Tietie v R (1988) 34 A Crim R 438 …. 10.70 Timbu Kolian v R (1968) 119 CLR 47 …. 2.7, 8.39 Tims v John Lewis & Co Ltd [1951] 2 KB 459 …. 11.39, 11.43 Trade Practices Commission v CSR Ltd …. 1.22 Trainer v R (1906) 4 CLR 126 …. 7.45 Trevitt v NSW TAFE Commission [2001] NSWCA 363 …. 5.31 Trudgeon v R(1988) 39 A Crim R 252 …. 10.26 Tuberville v Savage (1669) 1 Mod Rep 3; 86 ER 684 …. 5.21 Tuckiar v R (1934) 52 CLR 335 …. 1.62 Tumanako v R (1992) 64 A Crim R 149 …. 3.26 Turner v Campbell (1987) 88 FLR 410 …. 7.29

U United States v Bailey 444 US 394 (1979) …. 9.25 United States ex rel Marcus v Hess 317 US 537 (1943) …. 1.12

V Vallance v R (1961) 108 CLR 56 …. 2.20, 2.21, 5.9 Van Den Hoek v R (1986) 161 CLR 158 …. 3.15 Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 …. 12.73 Veivers v Connolly (1994) Aust Torts Reports 81–309 …. 9.29 Vella v R; Siskos v R [2015] NSWCCA 148 …. 7.32 Viro v R (1978) 141 CLR 88 …. 8.60, 8.61, 9.35, 9.37, 9.38, 9.49,

9.50

W Walden v Hensler (1987) 163 CLR 561 …. 7.37, 7.38, 7.41, 7.42, 7.44 Walker v Budgen (2005) 155 A Crim R 416 …. 11.65 Wallis v Lane [1964] VR 293 …. 7.8, 7.18 Walsh v R (1990) 52 A Crim R 80 …. 7.68 Walton v Gardiner (1993) 177 CLR 378; 112 ALR 289 …. 1.53 Ward v R [1972] WAR 36 …. 4.2 — v — [2013] NSWCCA 46 …. 8.61 Webley v Buxton [1977] 2 QB 481 …. 10.7 Weiss v R (2005) 224 CLR 300; 223 ALR 662; [2005] HCA 81 …. 12.79, 12.80, 12.81 Welham v Director of Public Prosecutions [1961] AC 103 …. 7.68 Wheatley v Lodge [1971] 1 All ER 173; [1971] 1 WLR 29 …. 11.39 Whelan v R [2012] NSWCCA 147 …. 2.18 White v Ridley (1978) 140 CLR 342 …. 10.37, 10.38, 10.69, 10.70 Whitehorn v R (1983) 152 CLR 657 …. 1.60 Wiffin v Kincard (1807) 2 Bos & PNR 471; 127 ER 713 …. 5.21 Wilde v R (1988) 164 CLR 365 …. 8.25 Williams v R (1986) 161 CLR 278; 66 ALR 385 …. 11.5, 11.9, 11.50, 11.52, 11.53, 11.55, 11.56, 11.57 — v — (1986) 21 A Crim R 460 …. 7.38 — v — [2006] NSWCCA 26 …. 7.42

Wilson v Chief Constable of the Lancashire Constabulary [2000] All ER (D) 1949 …. 11.41 — v Dobra (1955) 57 WALR 95 …. 10.18 — v New South Wales (2010) 278 ALR 74; [2010] NSWCA 333 …. 11.39 — v R (1992) 174 CLR 313; 107 ALR 257 …. 2.12, 4.2, 4.4, 4.7, 4.9, 4.11, 4.20 WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 …. 6.31, 8.62 Wong v DPP (NSW) (2005) 155 A Crim R 37 …. 12.12 Woodley v Boyd [2001] NSWCA 35 …. 11.39 Woolmington v Director of Public Prosecutions [1935] AC 462 …. 1.48, 1.50, 1.51, 3.37, 6.10, 8.39, 8.43, 8.45, 10.51, 10.52

Y Yip Chiu-Cheung v R (1994) 99 Cr App R 406 …. 10.21

Z Zaburoni v R [2016] HCA 12 …. 1.75, 5.42, 5.43, 5.44 Zanker v Vartzokas (1988) 34 A Crim R 11 …. 5.7, 5.8, 5.31 Zecevic v DPP (1987) 162 CLR 645; 71 ALR 641 …. 3.28, 3.40, 8.45, 9.34, 9.35, 9.36, 9.37, 9.38, 9.39, 9.41, 9.49, 9.50

Table of Statutes References are to paragraphs

Commonwealth Acts Interpretation Act 1901 s 41 …. 1.12 Australian Security Intelligence Organisation Act 1979 Div 3 …. 1.46 ss 25A–27 …. 11.10, 11.24 ss 34A–34ZZ …. 11.24 Bankruptcy Act 1924 s 95(4) …. 11.7 Conciliation and Arbitration Act 1904 …. 1.12 s 5(1) …. 1.12 s 5(1A) …. 1.12 s 5(2) …. 1.12 s 27(5) …. 1.12 s 42(2) …. 1.12 s 42A(3) …. 1.12 s 46 …. 1.12 s 111 …. 1.12 s 119 …. 1.12 s 122 …. 1.12

Constitution …. 1.7, 1.31, 1.42, 1.43, 1.44, 1.53, 12.92 Ch III …. 1.28, 1.42, 1.44 s 75(v) …. 1.53 s 80 …. 12.5, 12.92 Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 s 33 …. 11.24 Crimes Act 1914 …. 12.92 s 10 …. 11.19 s 29D …. 7.29 s 81(1) …. 7.29 s 85S …. 1.27 s 86(1)(e) …. 7.29 s 86A …. 7.29 Criminal Code Act 1995 …. 1.46, 1.66, 1.72, 1.83, 7.66, 10.23, 10.31, 10.38, 10.50 Ch 2 …. 1.67 Pt 2.2 Div 6 …. 1.83 Pt 2.3 Div 7 …. 1.79 Pt 2.5 …. 1.81 s 5.4 …. 1.71, 10.31 s 5.6 …. 1.72 s 5.6(1) …. 10.31 s 11.1 …. 10.12 s 11.1(2) …. 10.12 s 11.1(4)(a) …. 10.16

s 11.2 …. 10.40 s 11.2A …. 10.50 s 11.3 …. 10.38 s 11.5 …. 10.19, 10.31 s 11.5(1) …. 10.31 s 11.5(2) …. 10.31 s 11.5(2)(b) …. 10.31 s 11.5(7A) …. 10.31 s 101.2 …. 10.3 s 101.5 …. 10.4 s 130.3 …. 7.32 s 131.1 …. 1.83 s 400.3 …. 10.31 s 400.3(2) …. 10.31 s 400.3(2)(b)(i) …. 10.31 Customs Act 1901 …. 1.17, 1.18 s 5 …. 1.17 s 33(1) …. 1.17 s 212 …. 11.52 s 233B(1) …. 10.7 s 233B(1)(a) …. 1.88 s 233B(1)(b) …. 1.88 s 233B(1)(c) …. 1.88 s 233B(1)(ca) …. 1.88 s 233B(1)(d) …. 1.88

s 241 …. 1.81 s 247 …. 1.18 Evidence Act 1995 …. 12.104 Pt 3.11 …. 12.104 s 90 …. 12.104 s 138(1) …. 12.104 Excise Act 1901 …. 1.17 Judiciary Act 1903 s 68(2) …. 12.92 Telecommunications (Interception and Access) Act 1979 Pts 2–5 …. 11.10 Trade Practices Act 1974 …. 1.22 Pt IV …. 1.22 s 76 …. 1.22

Australian Capital Territory Crimes Act 1900 s 352(1)(a) …. 11.39 Criminal Code 2002 s 38 …. 7.40, 7.41 s 38(3) …. 7.41 Criminal Code Amendment Regulation 2013 (No 1) …. 7.41 Human Rights Act 2004 …. 1.41 s 22 …. 1.41 s 32 …. 1.41

New South Wales

Anti-Terrorism Act (No 2) 2005 …. 10.4 Bail Act 2013 …. 11.77 s 4 …. 11.81, 11.91 s 6 …. 11.91 s 8 …. 11.80, 11.81 s 9 …. 11.80 s 10 …. 11.81 s 16 …. 11.82 s 16B …. 11.83 s 17(3)(b) …. 11.86 s 18 …. 11.52, 11.85, 11.92 s 18(2) …. 11.86 s 21 …. 11.79 s 21(4) …. 11.79 s 25 …. 11.87 s 26 …. 11.87 s 27 …. 11.87 s 28 …. 11.87 s 30 …. 11.87 s 31 …. 11.88 s 32 …. 11.88 s 41 …. 11.89 s 43 …. 11.80 s 44 …. 11.80 s 49 …. 11.93

s 50 …. 11.93 s 51 …. 11.93 s 52 …. 11.94 s 55 …. 11.90 s 57 …. 11.94 s 58 …. 11.94 s 68 …. 11.94 s 69 …. 11.94 s 70 …. 11.94 s 77 …. 11.95 s 78 …. 11.95 s 79 …. 11.96, 12.10 Children (Criminal Proceedings) Act 1987 …. 1.89 s 5 …. 1.79, 1.80 s 8 …. 11.32 Civil Liability Act 2002 s 54(2) …. 1.81 Community Protection Act 1994 …. 1.27, 1.28, 1.42 s 24 …. 1.42 Crimes Act 1900 …. 1.14, 1.81, 1.89, 2.4, 2.7, 2.15, 2.20, 2.29, 3.6, 3.9, 3.39, 4.11, 4.12, 5.4, 5.27, 5.29, 6.3, 6.5, 6.12, 6.17, 6.38, 7.2, 7.3, 7.4, 7.9, 7.10, 7.21, 7.22, 7.26, 7.33, 7.34, 7.57, 7.64, 7.65, 7.66, 7.73, 7.74, 9.29, 9.49, 10.6, 10.66 Pt 1 …. 4.11 Pt 3 Div 1 …. 4.11 Pt 4 Divs 1–4 …. 7.74

Pt 4 Div 5 …. 7.4 Pt 4AA …. 7.7, 7.10, 7.22, 7.35, 7.65, 7.66, 7.72 Pt 4AA Div 2 …. 7.44 Pt 7 …. 12.89 Pt 10 …. 11.64 Pt 10A …. 11.52, 11.56, 12.117, 12.144, 12.145 Pt 11 Div 3 …. 9.41, 9.45, 9.49 Pt 11A …. 3.21, 8.50, 8.55, 8.57, 8.58, 9.41, 9.46 Pt 15A …. 5.31 s 4 …. 1.81, 2.25, 3.23, 5.28, 5.40, 7.9, 7.10, 7.32, 7.58, 10.71, 12.152 s 4(1)(c) …. 5.42 s 4A …. 1.71, 2.33, 6.18 s 4B …. 7.26, 7.33, 7.35, 7.43, 7.65, 7.72 s 5 …. 2.33, 4.11, 4.12, 4.13 s 7(4) …. 8.63 s 12 …. 12.25 s 13 …. 4.11 ss 17A–24 …. 4.11 s 17A …. 4.11 s 18 …. 1.71, 2.3, 2.4, 2.5, 2.10, 2.14, 2.19, 2.22, 2.29, 2.33, 3.6, 4.11, 4.14, 9.18 s 18(1) …. 2.31, 4.11 s 18(1)(a) …. 2.29, 2.33, 4.11 s 18(1)(b) …. 3.6, 4.11 s 18(2)(a) …. 2.31, 2.33, 4.10, 4.11

s 18(2)(b) …. 2.6 s 19 …. 4.11 s 19A …. 4.11, 8.59, 12.25 s 20 …. 2.15, 4.11 s 21 …. 2.15, 4.11 s 22 …. 4.11 s 22A …. 3.45, 4.11 s 22A(1) …. 3.43 s 23 …. 3.9, 3.10, 3.15, 3.18, 3.20, 3.22, 3.23, 3.28, 3.30, 4.11 s 23(2) …. 3.15 s 23(2)(a) …. 3.18, 3.30 s 23(2)(b) …. 3.17, 3.18, 3.28, 3.30 s 23(2)(d) …. 3.17 s 23(3)(a) …. 3.18, 3.30 s 23(3)(b) …. 3.15, 3.27 s 23(3)(c) …. 3.30 s 23(4) …. 3.15 s 23(5) …. 3.21 s 23A …. 3.36, 4.11, 8.16, 8.20, 8.25, 8.28 s 23A(1) …. 8.21, 8.25, 8.26, 8.28 s 23A(1)(b) …. 8.28 s 23A(3) …. 8.26 s 23A(4) …. 3.37, 8.28 s 23A(8) …. 8.28 s 24 …. 3.6, 4.11, 9.49

s 25A …. 2.1, 3.4, 4.1, 4.18, 4.19, 4.20 s 25A(2) …. 4.19, 4.22, 4.23, 8.22, 8.27, 8.28 s 25A(7) …. 4.23 s 25B …. 4.19 s 26 …. 10.19 s 27 …. 10.6, 10.9 s 32 …. 5.4 s 33 …. 2.33, 5.4, 5.29, 5.40, 5.42, 5.44, 12.86 s 33(1)(b) …. 5.29 s 33A …. 1.92, 5.4 s 33B …. 5.4 s 35 …. 2.36, 5.4, 5.29, 5.30, 5.40, 5.42 s 35(2) …. 5.29 s 35A …. 5.4 s 37 …. 5.4 s 38 …. 5.4 s 38A …. 5.4 s 39 …. 5.4 s 41 …. 5.4 s 41A …. 5.4 s 42 …. 5.4 s 43 …. 5.4 s 43A …. 5.4 s 44 …. 5.4 s 45 …. 5.4, 6.4

s 45A …. 6.4 s 46 …. 2.36, 5.4 s 47 …. 5.4 s 48 …. 5.4 s 49 …. 5.4 s 49A …. 5.4 s 51A …. 5.4 s 52A …. 1.84, 4.9, 4.24, 10.18 s 52A(1)(a) …. 8.48 s 52A(3) …. 5.4 s 52A(4) …. 5.4 s 52AB …. 5.4 s 52B …. 4.24 s 52B(3) …. 5.4 s 52B(4) …. 5.4 s 53 …. 5.4 s 54 …. 4.6, 5.4 s 55 …. 5.4 s 56 …. 5.4 s 57 …. 5.4 s 58 …. 5.4 s 59 …. 1.81, 3.23, 5.4, 5.23, 5.24 s 59A …. 5.4 s 60 …. 5.4, 5.24, 5.30 s 60A …. 5.4, 5.24, 5.30

s 60B …. 5.4 s 60E …. 5.4, 5.30 s 61 …. 1.81, 5.4, 5.5, 5.8, 5.24 s 61(1) …. 12.73 s 61AA …. 9.52 s 61D …. 6.16 s 61D(1) …. 6.16 s 61D(2) …. 6.6, 6.16, 6.49 s 61E(1) …. 6.45, 6.48 s 61F(5) …. 6.54 s 61H …. 6.9 s 61HA …. 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.22, 6.31, 6.38, 8.62 s 61HA(1) …. 6.12, 6.13, 6.31 s 61HA(2) …. 6.12 s 61HA(2)(c) …. 6.13 s 61HA(3) …. 6.12, 6.14, 6.31, 8.62 s 61HA(3)(b) …. 6.12, 6.15 s 61HA(3)(c) …. 6.12, 6.23, 6.24 s 61HA(3)(e) …. 6.31, 8.62 s 61HA(4) …. 6.12, 6.27, 6.31 s 61HA(4)(a) …. 6.27 s 61HA(4)(c) …. 6.13, 6.38 s 61HA(5) …. 6.12 s 61HA(5)(a) …. 6.38

s 61HA(5)(b) …. 6.38 s 61HA(5)(c) …. 6.38 s 61HA(6) …. 6.12, 6.32, 6.34, 6.37, 6.41 s 61HA(6)(a) …. 6.33 s 61HA(6)(b) …. 6.38, 6.41 s 61HA(7) …. 6.12 s 61HA(8) …. 6.12 s 61I …. 6.3, 6.6, 6.7, 6.11, 6.12, 6.16, 6.19, 6.20, 6.31, 6.38, 8.62 ss 61I–61O …. 8.62 s 61J …. 1.89, 6.6, 6.11, 6.12, 6.28, 6.29, 6.31, 6.38 s 61J(2)(a) …. 6.3 s 61J(2)(d) …. 6.3 s 61J(3) …. 6.11 s 61JA …. 6.3, 6.6, 6.11, 6.12, 6.31, 6.38 s 61K …. 6.3 s 61L …. 6.3, 6.15, 6.38, 6.43, 6.48, 6.49 s 61M …. 6.6, 6.15 s 61M(2) …. 6.29 s 61N …. 6.3, 6.4, 6.43, 6.44, 6.45, 6.46, 6.47 s 61O …. 6.44, 6.47 s 61O(2) …. 6.47 s 61P …. 6.31, 8.62 s 61R …. 6.6, 6.13, 6.17, 6.19, 6.38, 6.39 s 61R(1) …. 6.6, 6.13, 6.20

s 61R(2) …. 6.13 s 61R(2)(a)(i) …. 6.38 s 61R(2)(a)(ii) …. 6.38 s 61R(2)(c) …. 6.13, 6.38 s 61R(2)(d) …. 6.13 s 61S …. 6.5 s 61T …. 6.5 s 65 …. 6.38 s 65A …. 6.40, 6.41 s 65HA …. 6.38 s 65HA(4)(c) …. 6.39 ss 66A–77 …. 6.51 s 66A …. 6.29 s 66C …. 1.89, 6.29 s 66C(3) …. 1.89, 6.52 s 66C(4) …. 1.89 s 66D …. 10.6 s 66F(7)(a)(i) …. 6.54 s 76A …. 6.47 s 77 …. 6.3, 6.27, 6.28, 6.52 s 77(2) …. 1.89 s 80A …. 6.4 ss 82–84 …. 9.28 ss 82–85 …. 2.15 s 83 …. 9.29

s 91E …. 10.76 s 95 …. 8.60 s 96 …. 2.30 s 97(2) …. 8.64 s 98 …. 2.30, 8.40 s 105A …. 5.30 s 110 …. 12.86 s 112(1) …. 9.9 s 117 …. 7.4 s 118 …. 7.20, 7.21 s 120 …. 7.73 s 124 …. 7.62 s 125 …. 7.10, 7.61 s 134 …. 7.10 s 139 …. 7.10 s 140 …. 7.10 s 154 …. 7.10 s 154A …. 7.22 s 157 …. 7.10, 7.63, 7.64, 7.67 s 158 …. 7.65, 7.67 ss 165–186 …. 7.65 s 173 …. 7.22, 7.26, 7.44 s 176 …. 7.67 s 178AB …. 7.68 s 178BA …. 7.28, 7.29, 7.68

s 178BB …. 7.67, 7.68 s 180 …. 7.59 s 189A …. 7.21 s 189A(2) …. 7.21 s 189A(3) …. 7.21 ss 192B–192H …. 7.10 s 192B …. 7.17, 7.67 s 192B(2) …. 7.67 s 192C …. 7.23, 7.67 s 192C(2) …. 7.67 s 192C(3) …. 7.6 s 192C(4) …. 7.67 s 192D …. 7.67 ss 192E–192H …. 7.67 s 192E …. 7.28, 7.34, 7.58, 7.59, 7.67, 7.68, 7.73 s 192E(1)(a) …. 7.57 s 192E(1)(b) …. 7.32, 7.69, 7.71 ss 192F–192H …. 7.67 s 192F …. 7.67 s 192G …. 7.67 s 192H …. 7.67 s 195 …. 10.6, 10.76 s 200 …. 10.6 s 316 …. 10.75 s 344A …. 6.31, 10.6, 10.76

ss 345–347 …. 10.18 ss 345–351B …. 10.35 s 346 …. 9.9, 10.51 s 347 …. 10.71 s 351 …. 10.18 s 352 …. 11.45, 11.52, 11.53, 11.56 s 352(1) …. 11.56 s 352(2) …. 11.9, 11.40 s 352(2)(a) …. 11.9 s 353(1) …. 4.2 s 353A …. 11.53 s 353A(2) …. 11.61 s 353A(3) …. 11.64 s 356B(1)(a) …. 11.56 s 356C(1) …. 11.56 s 356C(2) …. 11.56 s 357E …. 11.8 s 357F–357I …. 11.22 s 357F …. 11.22 s 393 …. 10.24 ss 418–423 …. 9.34, 9.39, 9.40, 9.41, 9.46 s 418 …. 9.41, 9.49 s 418(2) …. 9.41, 9.45 s 418(2)(a) …. 9.51 s 418(2)(c) …. 9.51

s 419 …. 9.33 s 420 …. 9.51 s 421 …. 3.41, 9.41, 9.47, 9.49 s 421(1) …. 3.41 s 421(1)(b) …. 3.41 s 421(2) …. 9.48 s 422 …. 9.50 s 424A …. 12.119 s 428A …. 3.21, 8.27 s 428B …. 6.31, 8.60 s 428B(1) …. 8.56, 8.59 s 428B(2) …. 8.56, 8.59, 8.62 s 428C …. 6.31, 8.59, 8.62 s 428C(1) …. 8.58 s 428C(2)(a) …. 8.58 s 428C(2)(b) …. 8.58 s 428D …. 6.31, 8.62 s 428D(a) …. 8.58 s 428D(b) …. 8.58 s 428E …. 8.59 s 428E(2) …. 4.20 s 428F …. 3.22, 8.58, 9.41 s 428G(1) …. 8.58 s 428G(2) …. 8.58 s 428H …. 8.59

s 476 …. 6.47 s 527 …. 7.65 s 527A …. 7.65 s 527B …. 7.65 s 527C(2) …. 1.51 s 528 …. 7.65 s 545A …. 7.65 s 546C …. 10.62 s 547A …. 7.65 s 580E …. 10.18 Crimes (Administration of Sentences) Act 1999 …. 12.67 Pt 4A …. 12.63 Pt 6 …. 12.67 s 132 …. 12.67 Crimes (Administration of Sentences) Regulation 2014 reg 186 …. 12.65 reg 187 …. 12.65 Crimes Amendment Act 2007 …. 2.33, 4.12 Sch 1 cl 2 …. 2.33 Sch 11 …. 2.33 Sch 11 cl 5 …. 2.33 Sch 11 cl 65 …. 2.33 Crimes Amendment (Consent — Sexual Assault Offences) Act 2007 …. 6.12 Crimes Amendment (Diminished Responsibility) Act 1997

s 23A …. 8.16 Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 …. 7.3, 7.23, 7.33, 7.34, 7.65 Crimes Amendment (Provocation) Act 2014 …. 3.9 Crimes Amendment (Reckless Infliction of Harm) Act 2012 …. 5.30 Crimes Amendment (Self-Defence) Act 2001 …. 9.38, 9.39, 9.49 Crimes (Appeal and Review) Act 2001 …. 2.33, 12.90, 12.92, 12.93 Pt 3 …. 12.75 Pt 7 …. 12.82, 12.85, 12.89 s 6 …. 10.26 s 17 …. 12.75 s 18 …. 12.75 s 18(2) …. 12.75 s 52 …. 12.75 s 53 …. 12.75 s 77 …. 12.82 s 78 …. 12.85 s 79 …. 12.83, 12.85 s 79(1)(a) …. 12.85 s 79(1)(b) …. 12.85 s 79(2) …. 12.85 s 79(3)(a)(ii) …. 12.85 s 81 …. 12.84

s 82 …. 12.84 s 100 …. 12.89 s 101 …. 12.89 s 102(2) …. 12.93 s 103 …. 12.89 s 107 …. 12.92 s 107(2) …. 2.33, 10.67 s 107(5) …. 2.33 s 107(6) …. 2.33 Crimes (Domestic and Personal Violence) Act 2007 s 4 …. 5.15 s 8 …. 5.17 s 13 …. 5.10 s 14 …. 5.18 s 16 …. 5.13, 5.14 s 16(3) …. 5.17 s 19 …. 5.13, 5.14 s 19(3) …. 5.17 s 35(1) …. 5.18 Crimes (Forensic Procedures) Act 2000 …. 11.62, 11.63, 11.64, 11.66 Pt 3 …. 11.66 Pt 4 …. 11.66 Pt 5 …. 11.66 s 3 …. 11.63, 11.64, 11.65, 11.66

s 5 …. 11.62 s 22 …. 11.10 s 44 …. 11.65 s 47 …. 11.65 s 82 …. 11.66 s 82(1)(a) …. 11.66 s 82(4) …. 11.66 s 82(5) …. 11.66 s 84(4)(b) …. 11.66 s 112 …. 11.64 Crimes (High Risk Offenders) Act 2006 …. 1.45 s 21 …. 1.45 Crimes (Sentencing Procedure) Act 1999 …. 12.45, 12.46, 12.47 Pt 4 …. 12.66 Pt 4 Div 1A …. 12.70 Pt 5 …. 12.65 Pt 6 …. 12.64 Pt 8 …. 12.53 s 5 …. 12.66 s 5(1) …. 12.66 s 5A …. 12.63 s 6 …. 12.64 s 7 …. 12.65 s 8 …. 12.52

s 9 …. 12.53, 12.55 s 10 …. 12.55 s 10(1)(b) …. 12.55 s 10(3) …. 12.54 s 10A …. 12.56 s 11 …. 12.57 s 12 …. 12.60 s 15 …. 12.58 s 15(2) …. 12.58 s 16 …. 1.81 s 17 …. 5.19, 12.58 s 21 …. 12.48, 12.72 s 21(1) …. 12.71 s 21A …. 12.48, 12.70 s 21A(3)(c) …. 8.5 s 21A(3)(k) …. 12.49 s 21A(3)(m) …. 12.49 s 22 …. 12.49 s 23 …. 12.49 s 24 …. 12.50 s 25 …. 12.17 s 44(1) …. 12.67 s 44(2) …. 12.67 s 45 …. 12.68 s 46 …. 12.68

s 47 …. 12.69 s 48 …. 12.69 ss 54A–54D …. 12.70 s 54A(2) …. 12.70 s 54B …. 12.70 s 54B(2) …. 12.70 s 54B(3) …. 12.70 s 54B(4) …. 12.70 s 54C(1) …. 12.70 s 61 …. 12.71 s 61(1) …. 12.72, 12.73 s 76 …. 12.64 s 77 …. 12.64 s 82 …. 12.64 s 86 …. 12.52 s 88 …. 12.52 s 89 …. 12.52 Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 …. 12.70 Criminal Appeal Act 1912 …. 12.76, 12.82, 12.83, 12.85 s 5 …. 12.76, 12.77 s 5B …. 6.47, 7.68 ss 5D–5DB …. 12.77 s 5D …. 9.49, 12.46 s 5F …. 1.60, 6.31

s 6 …. 12.78 s 6(1) …. 12.79, 12.81 Criminal Appeal Rules 1952 r 4 …. 6.30, 7.38, 8.25, 10.62, 12.119 r 5 …. 12.76 Criminal Assets Recovery Act 1990 s 10 …. 11.9 Criminal Law Amendment Act 1883 …. 2.22, 2.29, 4.11 s 9 …. 2.22, 2.29 Criminal Procedure Act 1986 …. 12.1, 12.6, 12.10, 12.14, 12.114 s 3 …. 12.42 s 8 …. 12.117 s 8(2)(a) …. 12.117 s 8(2)(b)–(d) …. 12.117 s 8(3)(a)–(d) …. 12.117 s 10 …. 12.45 s 16 …. 12.44 s 19 …. 12.44 s 22 …. 12.45 s 32 …. 8.46 s 42 …. 12.45 s 46 …. 12.25 s 47 …. 12.9 s 62 …. 12.22

s 62(1) …. 12.21 s 62(2) …. 12.21 s 63 …. 12.22 s 63(1) …. 12.22 s 64 …. 12.22 s 66 …. 12.23 s 74 …. 12.24 s 91 …. 12.24 s 93 …. 12.24 s 126 …. 12.44 s 132 …. 12.5 s 137 …. 12.37 s 139 …. 12.39 s 140 …. 12.39 s 142 …. 12.33 s 143(1) …. 12.35 s 143(2) …. 12.36 s 144 …. 12.37 s 146 …. 12.40 s 146(1) …. 12.42 s 146A …. 12.41 s 147 …. 12.38 s 149A …. 12.34 s 150 …. 12.29, 12.30, 12.32 s 150(2) …. 12.32

s 150(8) …. 12.32 s 151 …. 12.29, 12.31, 12.32 s 153 …. 12.26 s 154 …. 12.26, 12.28 s 155 …. 12.26 s 156 …. 12.26 s 159 …. 12.45 s 162 …. 10.6 s 175 …. 12.9 s 175(3) …. 11.27 s 175(3)(d) …. 12.9 s 177 …. 12.9 s 181 …. 11.34, 12.9 s 181(2) …. 11.34 s 181(3A) …. 11.34 s 182 …. 12.10, 12.11 s 183 …. 12.13 s 184 …. 12.13 s 187 …. 12.13 s 191 …. 12.19 s 192 …. 12.19 s 192(1) …. 12.20 s 192(2) …. 12.20 s 192(3) …. 12.20 s 193 …. 12.11

s 194 …. 12.19 s 194(2) …. 12.20 s 195 …. 12.19, 12.20 s 196 …. 12.16 s 198 …. 12.16 s 199 …. 12.16 s 200 …. 12.16 s 201 …. 12.15 s 202(2) …. 12.20 s 203 …. 12.20 s 204(1) …. 12.20 s 236 …. 11.35 s 236(2) …. 11.35 s 238 …. 11.36 s 267 …. 12.6 s 268 …. 12.6 s 281 …. 12.114, 12.115, 12.117, 12.118, 12.119 s 281(1)(a) …. 12.119 s 281(1)(b) …. 12.115 s 281(1)(c) …. 12.115 s 281(4) …. 12.116, 12.120 s 293 …. 6.55 s 294 …. 6.55 s 294A …. 6.55 ss 332–344A …. 12.3

s 338 …. 12.4 s 340 …. 12.4 ss 345–352 …. 12.59 Sch 1 …. 12.6, 12.115 Sch 1 Table 1 …. 12.7 Sch 1 Table 2 …. 12.7 Sch 3 cl 21 …. 10.24 Criminal Procedure Regulation 2010 …. 12.10 Pt 6 …. 12.59 Pt 7 …. 12.59 Pt 8 …. 12.59 reg 21 …. 12.13 reg 22 …. 12.13 reg 103 …. 12.25 Sch 3 …. 12.3 Crown Prosecutors Act 1986 …. 12.45 s 5(b) …. 12.25 Director of Public Prosecutions Act 1986 s 7 …. 12.25 Drug Court Act 1988 …. 12.63 Drug Misuse and Trafficking Act 1985 s 3(1) …. 10.26 s 5(a) …. 10.28 s 24(2) …. 10.27 s 25 …. 10.59

s 25(2) …. 10.26 s 26 …. 10.26, 10.27 s 33(2) …. 12.46 s 33(3)(a) …. 10.67 Evidence Act 1995 …. 12.95, 12.96, 12.97, 12.104, 12.114, 12.122, 12.123, 12.137, 12.149, 12.151 Pt 3.11 …. 12.104 s 4 …. 12.95 s 4(1)(a) …. 12.95 s 4(1)(d) …. 12.95 s 9 …. 12.137 s 11(2) …. 12.137 s 59 …. 12.97 s 81 …. 12.97 s 84 …. 12.114, 12.122, 12.123, 12.137, 12.149 s 84(1) …. 12.123 s 84(1)(a) …. 12.123 s 84(2) …. 12.123 s 85 …. 12.114, 12.123, 12.124, 12.125, 12.126, 12.127, 12.137, 12.149 s 85(3) …. 12.124 s 86 …. 12.115, 12.121 s 89 …. 12.150, 12.153 s 89A …. 12.151 s 90 …. 12.104, 12.114, 12.137, 12.146, 12.147, 12.149 s 137 …. 12.114, 12.128, 12.129, 12.132, 12.147, 12.149

s 138 …. 12.114, 12.125, 12.134, 12.135, 12.137, 12.138, 12.139, 12.141, 12.142, 12.145, 12.149, 12.153 s 138(1) …. 11.32, 12.104, 12.137, 12.139 s 138(1)(b) …. 11.32 s 138(2) …. 12.137 s 138(3) …. 12.114, 12.141 s 139 …. 12.114, 12.134, 12.142, 12.143, 12.150, 12.153 s 139(5) …. 12.142 s 141(1) …. 1.49 s 141(2) …. 1.51 Dictionary …. 12.96, 12.129 Evidence Amendment (Evidence of Silence) Act 2013 …. 12.151 Firearms Act 1989 …. 11.21 s 5(a) …. 11.21 Firearms Act 1996 …. 11.21 s 7 …. 11.21 s 11(5)(b) …. 12.56 Sch 3 item 12 …. 11.21 Firearms Regulation 1990 …. 11.21 Human Tissue Act 1983 …. 2.17 s 33 …. 2.16, 2.17 Interpretation Act 1987 s 21 …. 1.81 s 33 …. 8.59 Judiciary Act 1903–1932

s 30B …. 8.13 Jury Act 1977 …. 12.45 s 19 …. 12.45 s 55B …. 4.7 s 55F …. 12.45 s 55F(4) …. 12.45 Law Enforcement (Powers and Responsibilities) Act 2002 …. 11.5, 11.45, 11.64 Pt 5 …. 11.11 Pt 9 …. 11.55, 11.56, 11.57, 11.59, 11.67, 12.117, 12.143, 12.144 s 9 …. 11.5, 11.22, 11.44 s 10 …. 11.5, 11.44 s 11 …. 11.5 s 13A …. 11.5 s 14 …. 11.5 s 21 …. 11.5 s 22 …. 11.13 s 23 …. 11.54 s 24 …. 11.54, 11.60 s 26 …. 11.5 s 30 …. 11.60 s 31 …. 11.60 s 36 …. 11.5, 11.8 ss 46–80 …. 11.11 s 46A …. 11.12, 11.17

s 46B …. 11.17 s 46C …. 11.16 s 47 …. 11.10, 11.11 s 47A(2) …. 11.18 s 48 …. 11.12, 11.16 s 49 …. 11.13 s 50 …. 11.13 s 67 …. 11.14 s 67A …. 11.18 s 68(1) …. 11.14 s 68(2) …. 11.15, 11.18 s 69 …. 11.14 s 70 …. 11.14 s 72 …. 11.14, 11.23 ss 82–87 …. 11.22 s 82 …. 11.22 s 83 …. 11.10 ss 90–95 …. 11.5 s 94 …. 11.10 s 99 …. 11.29, 11.30, 11.31, 11.39, 11.52 s 100 …. 11.30, 11.31 s 105 …. 11.72 s 110(4) …. 11.59 s 113(1) …. 11.56 s 114 …. 11.70

s 115 …. 11.57 s 115(2) …. 11.57 s 116 …. 11.57 s 117 …. 11.57 s 118 …. 11.58 s 122 …. 12.117, 12.150 s 122(1) …. 12.143 s 122(2) …. 12.143 s 123 …. 11.67, 11.69 s 123(1)(a) …. 11.69 s 123(1)(b) …. 11.69 s 123(5) …. 11.69 s 123(6) …. 11.69 s 123(8) …. 11.68 s 124 …. 11.67 s 124(6) …. 11.68 s 125 …. 11.69 s 126 …. 11.67 s 127 …. 11.67 s 128 …. 11.67 s 129 …. 11.67 s 130 …. 11.67 s 133 …. 11.64 s 138 …. 11.61 s 148 …. 11.5

s 196 …. 11.5 s 201 …. 11.44 s 201(1) …. 11.44 s 201(2) …. 11.44 s 201(2)(b) …. 11.44 s 201(3) …. 11.44 s 202 …. 11.44, 11.45 s 202(1) …. 11.44 s 202(2)(a) …. 11.44 s 230 …. 11.14, 11.44 s 231 …. 11.44, 11.48 Law Society Solicitors’ Rules 2013 r 20 …. 1.63 r 29 …. 1.61 Legal Profession Act 1987 …. 1.61 Listening Devices Act 1984 …. 12.149 Local Court Rules 2009 r 3.3 …. 12.22 Mental Health Act 2007 …. 8.30 s 4 …. 8.9 Mental Health (Criminal Procedure) Act 1990 s 39 …. 8.46, 8.63 Mental Health (Forensic Provisions) Act 1990 …. 8.8 s 38 …. 8.7 s 39 …. 8.8

s 39(1) …. 3.35 Motor Traffic Regulations …. 4.6 Occupational Health and Safety Act 2000 s 8 …. 1.92 Police Act 1990 s 6 …. 11.22 s 6(3) …. 11.22 s 13 …. 11.22 s 201 …. 11.22 Police Regulation 2000 reg 8 …. 11.22 reg 9 …. 11.22 reg 9(1) …. 11.22 Public Health Act 1991 …. 12.137 Road Rules 2014 …. 1.14 Road Transport Act 2013 …. 12.2 Pt 5.2 …. 12.55 s 114 …. 11.5 s 175 …. 11.5 Sch 3 …. 11.5 Road Transport (General) Regulation 2013 Sch 5 …. 12.2 Road Transport (Safety and Traffic Management) Act 1999 s 12 …. 1.92 Search Warrants Act 1985

s 5 …. 11.21 Seat of Government Supreme Court Act 1933 …. 8.13 Summary Offences Act 1970 s 11 …. 6.47 s 12 …. 6.47 Summary Offences Act 1988 …. 11.79 Surveillance Devices Act 2007 Pt 3 …. 11.10 Taxation Administration Act 1996 …. 1.11 ss 26–33 …. 1.11 ss 96–97 …. 1.11 Terrorism (Police Powers) Amendment (Investigative Detention) Act 2016 …. 11.24 s 25E …. 11.24 s 25I …. 11.24 Transport Administration (Railway Offences) Regulation 1994 …. 11.41 World Youth Day Act 2006 …. 1.7 s 7 …. 1.7 s 58 …. 1.7 World Youth Day Regulation 2008 …. 1.7 cl 7 …. 1.7 cl 7(1)(b) …. 1.7 Young Offenders Act 1997 Pt 5 …. 11.79

Northern Territory

Criminal Code Act 1983 …. 2.20, 6.2

Queensland Bail Act 1980 …. 1.44, 6.2 Corrective Services Act 2000 …. 1.44 Criminal Code 1899 …. 1.75, 1.89, 3.16, 5.43 Ch V …. 1.89 s 23 …. 2.7, 8.39 s 23(1) …. 2.6, 2.7, 8.39 s 23(1)(a) …. 2.7 s 24 …. 1.89 s 317 …. 5.43, 5.44 s 317(b) …. 1.75, 5.43 s 320 …. 5.43 Dangerous Prisoners (Sexual Offenders) Act 2003 …. 1.43, 1.44 s 8 …. 1.44 s 8(2)(a) …. 1.44 s 11(2) …. 1.44 s 13 …. 1.44 Evidence Act 1977 …. 1.18 Transplantation and Anatomy Act 1979 …. 2.17

South Australia Controlled Substances Act 1984 …. 1.15 Criminal Law Consolidation Act 1935 s 20 …. 5.3

Tasmania Criminal Code Act 1924 …. 6.2, 8.39, 11.43, 11.50 s 13 …. 5.9 s 160(2) …. 3.18 s 303(1) …. 11.52 Justices Act 1959 s 34a(1) …. 11.52

Victoria Abortion Law Reform Act 2008 …. 9.31 Charter of Human Rights Act 2006 …. 1.41 s 25 …. 1.41 s 36 …. 1.41 Crimes Act 1958 …. 3.32, 7.11, 7.29 s 3B …. 3.32 s 4 …. 3.42 s 4A …. 4.21 s 81(1) …. 7.29 s 82 …. 7.68 s 459 …. 11.48 s 568 …. 6.10 s 568(1) …. 12.79 Crimes (Amendment) Act 1985 …. 5.3 Crimes (Homicide) Act 2005 …. 3.32 Crimes (Powers of Arrest) Act 1972 …. 11.45 s 458 …. 11.45

s 459 …. 11.45 Drugs, Poisons and Controlled Substances Act 1981 …. 11.20

Western Australia Criminal Code 1913 …. 6.2, 7.52, 8.43, 10.18 s 23 …. 8.39 s 23(1) …. 8.39 s 26 …. 8.43 s 295 …. 5.3 s 570D …. 12.119 s 653 …. 8.43 Health Act 1911 s 334 …. 9.30 Police Act 1892–2004 s 50AA(1) …. 11.64

Brunei Criminal Procedure Code s 117 …. 12.123 s 117(2) …. 12.123

International European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 …. 1.39, 1.47, 9.27 Art 5(2) …. 11.41 Art 6 …. 1.39 Art 8(2) …. 5.33 International Covenant on Civil and Political Rights …. 1.44

United Kingdom Abortion Act 1967 …. 9.27 s 1(1) …. 9.27 s 1(1)(d) …. 9.27 Aviation Security Act 1982 s 1 …. 9.27 Children and Young Persons Act 1933 …. 4.14 Constitutions of Clarendon 1164 …. 1.44 Criminal Damage Act 1971 s 1(2) …. 6.17 Criminal Law Act 1977 s 1 …. 10.31 s 1(2) …. 10.31 Crown and Government Security Act 2010 …. 10.31 Indecency With Children Act 1990 s 1(1) …. 6.45 Infant Life Preservation Act 1929 s 1(1) …. 9.27 Offences against the Person Act 1861 …. 5.3, 5.32 s 18 …. 5.32 s 20 …. 5.32 s 47 …. 5.32 s 58 …. 9.27 Police and Criminal Evidence Act 1984 …. 12.123 s 76 …. 12.123

s 76(2)(a) …. 12.123 s 76(8) …. 12.123 Prevention of Cruelty to Children Act 1894 …. 4.14 Road Traffic Act 1972 s 1 …. 6.17 Sexual Offences Act 1956 …. 5.32 s 1 …. 6.21 s 1(1) …. 6.21 Sexual Offences Act 2003 s 74 …. 6.26 s 75 …. 6.26 s 76 …. 6.26 Statute of Westminster the First 1275 …. 11.75 Theft Act 1968 …. 7.2, 7.29 s 1 …. 7.29 s 15(1) …. 7.68 s 24(3) …. 10.7

United States of America Constitution of the United States 1787 …. 1.44, 11.21, 12.86

Contents Preface to the Fifth Edition Table of Flow Charts Table of Cases Table of Statutes

1

General principles Definition of crime Role of criminal law Restraining the state Bill of rights Burden of proof Discretion Role of lawyers Elements of a crime Introduction Physical elements Fault elements Motive Coincidence of physical and fault elements Special defendants Introduction Children

Corporate defendants Conclusion Strict and absolute liability Conclusion Discussion questions

2

Murder Introduction MCCOC on murder and manslaughter Murder in New South Wales Elements of murder Physical elements Act or omission Culpable omissions Causation Intervening acts and events Voluntary act of the deceased Pre-existing susceptibility Death of a living person Fault elements Reckless indifference to human life Intention to kill Intention to cause grievous bodily harm Constructive murder The fault element in constructive murder The requirement of malice

Conclusion Discussion questions

3

Voluntary manslaughter Introduction Extreme provocation Introduction The two-part test Loss of control after sustained period of abuse Ordinary person test Intoxication and extreme provocation Words as provocative conduct Presence of the accused Third party conduct Self-induced provocation Mistake Withholding provocation from the jury Proportionality not required Abolition of provocation Substantial impairment by abnormality of mind Excessive self-defence Infanticide Discussion questions

4

Involuntary manslaughter Introduction Two forms of involuntary manslaughter

Unlawful and dangerous act manslaughter Elements of unlawful and dangerous act manslaughter Unlawful and dangerous act Unlawful otherwise than as breach of statutory or regulatory provision Burden on Crown to prove death caused by unlawful act Manslaughter by criminal negligence Manslaughter by negligent act Manslaughter and malice Manslaughter by negligent omission Where there is an unexpected incident in carrying out a common design Assault causing death Culpable killing Discussion questions

5

Non-fatal offences against the person Introduction Assault Elements of assault Physical elements of assault Fault element of assault Stalking, intimidation and domestic violence Battery Physical elements of battery

Fault element of battery Aggravated assaults Wounding Grievous bodily harm Assault and battery summarised Consent Limits of consent Sexually transmitted diseases and consent Consent reviewed Discussion questions

6

Sexual offences Introduction Statutory and common law framework Statutory framework Intention and recklessness, capacity and consent, knowledge and mistake Sexual assault Introduction Physical elements Act of sexual intercourse Without consent Fault elements Knowledge of and recklessness as to consent Non-advertent recklessness Advertent recklessness

Honest but unreasonable belief in consent Negation of consent Consent in relation to offences of attempted sexual assault Grounds to establish absence of consent Indecent assault and act of indecency Indecent assault Act of indecency Act of indecency as an element of indecent assault and as a separate crime Act of indecency towards another person Fault element for indecent assault Child sexual assault Special evidentiary and procedural rules applying in sexual assault trials Discussion questions

7

Stealing and other property offences Introduction History of larceny Larceny Punishment under the Crimes Act Elements of larceny Concept of property Physical elements of larceny Taking and carrying away Something capable of being stolen

In someone’s possession whether or not the owner Without the consent of the person in possession Fault elements of larceny Intention to deprive the owner of property in the thing Fraudulently and without honest claim of right Finding and larceny Mistake and the requirement of coincidence between physical and fault elements Larceny by a trick Statutory offences Introduction Larceny by bailee Fraudulent appropriation Embezzlement Statutory fraud offences of Part 4AA Alternative verdicts in cases of dishonest acquisition Other property offence categories Discussion questions

8

Mental illness, voluntariness, automatism and intoxication Introduction Mental illness M’Naghten’s Rules Substantial impairment by abnormality of mind Fitness to be tried

Voluntariness and automatism Introduction Voluntary act Non-insane automatism Commentary on automatism Intoxication Introduction Common law background Part 11A of the Crimes Act Intoxication and attempted offences of specific intent Intoxication and mental illness Discussion questions

9

Duress, necessity and self-defence Introduction Duress Introduction Elements of duress Would a reasonable person have acted as the accused did? Is an act done under duress a ‘voluntary’ act? Duress, murder and constructive murder Necessity Elements of necessity Necessity and murder

Necessity and abortion Self-defence Common law background Legislative statement of self-defence Elements of self-defence Excessive force that inflicts death Response to lawful conduct or non-criminal conduct Defence of others and defence of property Defences to non-fatal offences Discussion questions

10 Attempt, conspiracy and complicity Introduction Inchoate terrorism crimes Attempt Introduction Common law on attempt Elements of attempt Physical element of attempt Impossibility Fault element for attempt Conspiracy Introduction Physical and fault elements for conspiracy Agreement

Impossibility of carrying out the agreement Fault element of agreement Intention that an offence be committed Conspiracy to commit a crime of recklessness Complicity Introduction Statutory provisions relating to complicity Principal in the first degree Joint criminal enterprise Innocent agents Principal in the second degree Accessory before the fact Joint criminal enterprise Introduction Scope and application of joint criminal enterprise Extended common purpose Constructive murder and joint criminal enterprise Manslaughter from participation in a joint criminal enterprise Withdrawal from complicity Requirements for withdrawal Accessory after the fact Introduction Physical element for accessory after the fact Fault element for accessory after the fact

Misprision of felony Discussion questions

11 Criminal procedure and evidence — Part 1 Investigation, arrest and bail Introduction Overview of criminal procedure Detecting the offence Investigating an alleged offence — power to stop and search without warrant Reasonable suspicion Investigation with warrant Search warrants Issuing a warrant Powers and responsibilities under a warrant Nature of search warrants and obligations of issuing justice Entry for investigation without warrant Expanding powers Commencing proceedings Arrest without warrant Arrest with warrant Definition of arrest Statement of reason for arrest Entry into premises to effect an arrest Force used against a person to effect an arrest Purpose of arrest

Search incidental to arrest Detention for further investigation after arrest Search, identification and collection of forensic examples after arrest Search Medical examinations Collection of forensic samples Fingerprints and photographs Rights of accused Protections at the police station Release or bail Bail Nature of bail Bail Act 2013 Making bail decisions Considerations for bail (Bail Act 2013 (NSW) s 16)) Bail conditions Refusing bail or bail conditions cannot be met Period of bail Varying bail Failure to comply Conclusion Discussion questions

12 Criminal procedure and evidence — Part 2 Trial, admissions, sentence and appeal

Introduction Penalty notice matters Court hearings Summary matters Return first date Plea of guilty Plea of not guilty — brief to be served Ex parte hearings Hearing of the matter Indictable matters Committal proceedings Presentation of the indictment Plea Pre-trial disclosure Arraignment Criminal trial Sentencing Principles Statutory framework Maximum penalties Non-custodial options Community service orders Good behaviour bonds Find the offence proved but take no action Deferral of sentence for rehabilitation

Fines Diversion of offenders Suspended sentence Custodial orders Compulsory drug treatment detention Home detention Intensive correction Full-time custody and parole Life sentence Appeals Appeal against sentence Power of the Court of Criminal Appeal Petition to the Governor based upon fresh evidence following final appeal Rule against double jeopardy — autrefois convict and autrefois acquit Aspects of evidence Evidence Act 1995 (NSW) Admissions and confessions Illegally or improperly obtained admissions Fabricated confessions — common law Modern statutory scheme Criminal Procedure Act 1986 s 281 and Evidence Act 1995 s 86 Evidence Act 1995 s 84 Evidence Act 1995 s 85

Evidence Act 1995 s 137 Discretionary exclusion Evidence Act 1995 ss 138 and 139 Evidence Act 1995 s 90 Right to silence Conclusion Discussion questions Index

[page 1]

1 General principles DEFINITION OF CRIME 1.1 What conduct should be made criminal? Should conduct be made criminal where there is no victim; for example, consensual sex between adult males? What are the consequences of a legal wrong being classified as a crime? For example, it is a legal wrong to negligently cause an injury, or to fail to honour a promise made, but these are not criminal. Why are they not crimes? The reader is invited to address these questions after studying the cases and materials that follow. At this stage a few introductory observations might be made. 1.2 A vast and growing range of conduct, extending from using offensive language in a public place and avoiding obligations to pay tax, through to the deliberate killing of another, is classified as criminal. What is it that the many and varied instances of criminal conduct have in common? Is there some single factor that applies so that we can say that they are crimes? Lord Aitken, in Proprietary Articles Trade Association v AG (Canada), said the only thing that made conduct criminal was that the state had prohibited it and had provided that a person who engaged in that conduct was to be punished.

Proprietary Articles Trade Association v AG (Canada) [1931] AC 310 Privy Council Lord Aitken: … Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the State. The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard, but one: Is the act prohibited with penal consequences? Morality and criminality are far from coextensive; nor is the sphere of criminality necessarily part of a more extensive field covered by morality — unless the moral code necessarily [page 2] disapproves all acts prohibited by the State, in which case the argument moves in a circle. It appears to their Lordships to be of little value to seek to confine crimes to a category of acts which by their very nature belong to the domain of ‘criminal jurisprudence’; for the domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the State to be crimes, and the only common nature they will be found to possess is that they are prohibited by the State and that those who commit them are punished.

1.3 Under Lord Aitken’s approach we can identify what is criminal by looking at the common law and statutes prohibiting various forms of behaviour and asking whether the two essential characteristics of a crime are present, namely: 1.

Is the conduct prohibited?

2.

Is the consequence of engaging in the prohibited conduct punishment?

This simple definition is not without its critics. This type of definition (that is, a crime is whatever the legislature says is a crime) forces commentators to accept ‘the official version of what was [or is] right and wrong’.1 This definition adds nothing to the analysis of why something is considered a

crime or why conduct that may be thought of as ‘wrong’ is not a crime. 1.4 As Bronitt and McSherry note, much theorising about the criminal law:2 … has been concerned with determining the legitimate conditions, in both moral and political terms, of criminal liability and punishment … As a consequence, much theoretical debate has been concerned with exploring the conditions under which individuals should be held morally and legally responsible for their conduct.

1.5 This debate, about the proper reach of the criminal law and when people should be held criminally responsible for their conduct, is not pursued in detail here. The aim of this text is to explore the principles of the criminal law as they exist today. In a textbook for legal practitioners who may be called upon to advise a client, as well as students of law, it is appropriate that we work with the ‘criminal law definition’.3 Neither a defence lawyer nor a prosecutor has the luxury of arguing that some conduct should or should not be a crime or that, for philosophical reasons, the assumption that people are in control of their actions and free to make choices should be rejected. 1.6 Apart from the philosophical issue of when it is appropriate to label people criminal, there is also a question of what sort of conduct should be criminal. The reach of the criminal law is constantly increasing. Criminal law is not only concerned with rape, murder and mayhem. The time devoted to criminal cases by the judicial system is weighted heavily towards minor offences dealt with in the Local Court. [page 3] 1.7 In anticipation of the Catholic Church’s World Youth Day, the New South Wales Government sought to extend the reach of the criminal law by using its power to make

regulations under the World Youth Day Act 2006 (NSW) to prevent conduct causing ‘annoyance or inconvenience’ to pilgrims (World Youth Day Regulation 2008 (NSW) cl 7). Failure to comply with a direction by police or an authorised person was a criminal offence punishable by a fine of up to $5500. In Evans v New South Wales (2008) 168 FCR 576; 250 ALR 33 the applicants intended to engage in conduct that would involve handing out material such as condoms and talking to pilgrims about the teachings of the Catholic Church on issues such as abortion and homosexuality. They sought a declaration that the laws were invalid, as they infringed their rights under the Australian Constitution to engage in free political speech. (The constitutional issue meant that it was the Federal Court, rather than the NSW Supreme Court, that had the jurisdiction to determine the matter.) The Court held that this: … class of regulation … requires that there be some rational relationship between the regulation and the powers, obligations and liabilities created by the Act. … Conduct which may attract a direction under cl 7(1)(b) is conduct which “causes annoyance … to participants in a World Youth Day event”. That is to say it is conduct which actually results in its observers being ruffled, troubled, vexed, disturbed, displeased or slightly irritated. These are responses which depend very much on the individuals concerned. Some may find protests of the kind which are proposed by the applicants mildly amusing. Others may be practising Catholics or Christians who agree with some of the protestors’ points and are not troubled by them. There may be others who find the protests irritating and who are, in the relevant sense, annoyed by them. Annoyance to “participants” within the meaning of the Regulation may be annoyance to many or a few. There is no objective criterion to assist the judgment of “an authorised person” in deciding whether to issue a direction under cl 7. There may be circumstances in which it would be difficult if not impossible

for a person to whom a direction is given to know whether his or her conduct was such as to authorise the giving of the direction. It is little consolation to the person affected by a direction that he or she could argue the point later in a prosecution in a court of law as the State suggested. … In our opinion the conduct regulated by cl 7(1)(b) so far as it relates to “annoyance” may extend to expressions of opinion which neither disrupt nor interfere with the freedoms of others, nor are objectively offensive in the sense traditionally used in State criminal statutes. Breach of this provision as drafted affects freedom of speech in a way that, in our opinion, is not supported by the statutory power conferred by s 58 properly construed. Moreover there is no intelligible boundary within which the “causes annoyance” limb of s 7 can be read down to save it as a valid expression of the regulating power.

1.8 Evans was a situation where potentially affected citizens were able to argue that the reach of the criminal law had been impermissibly extended. The court found that the term ‘annoyance’ was too wide and struck down that part of the regulation, meaning that a person could be directed to cease conduct that was a risk to safety or inconvenient or caused an obstruction, but not conduct that was merely annoying. Although this was a case where a regulation was struck down for ‘going too far’, the ability of a court to so rule will seldom arise. It is important to note that the law here was a regulation, that is, delegated legislation, rather than an Act of Parliament. The court had to consider whether the regulation was authorised [page 4] by the Act that authorised the Governor to make the regulation. The court did not deny that the legislature could make laws that infringed the principle of freedom of speech, but required that it clearly do so. It is unclear whether the result would have been the same if the rule had been established by an Act of Parliament rather than delegated legislation.

1.9 Although Evans is an example of the limited capacity of the courts to strike down criminal legislation, it remains the case that there is usually little value in arguing before a judge that the matter before the court should not be a crime if the legislature has said that the alleged conduct is a crime. And obviously, a prosecutor cannot bring charges on the basis that what the accused did should be illegal if, in law, it is not. 1.10 Notwithstanding the decision in Evans, for the purposes of this text we will accept that, although morally and intellectually unsatisfying, a crime is a crime when the legislature or the common law has determined that such conduct is prohibited and the consequence of engaging in that conduct is punishment, as opposed to another legal remedy such as an obligation to make good the damage incurred from failing to specifically perform one’s obligations. 1.11 A criticism of Lord Aitken’s definition in Proprietary Articles Trade Association v AG (Canada) (see 1.2) is that it fails to take into account the growing range of conduct which, on the face of it, looks criminal but is only ‘punished’ by what is classified as a civil penalty. The civil penalty process is one where a person can be ordered to pay a penalty without being classified as having been convicted of a crime. For example, under the Taxation Administration Act 1996 (NSW) the Chief Commissioner of State Revenue can determine if a person is in default of his or her obligations to pay tax and may impose a penalty by way of ‘penalty tax’. It is then for the Chief Commissioner to determine the amount of penalty tax that is to be paid, an amount which can be decreased if the taxpayer makes appropriate disclosures, or increased if the taxpayer deliberately conceals information (Taxation Administration Act 1996 (NSW) ss 26–33). Tax, including penalty tax, is a debt due to the Chief Commissioner of State Revenue and can be recovered in the civil courts. Here is an example of a penalty being applied for a failure to do

something required under state tax legislation, but the failure is not a criminal offence. Because it is not a criminal offence the general rules of criminal procedure (see Chapter 11) do not apply. The default of the taxpayer does not have to be proved beyond reasonable doubt, and the penalty is applied in effect by the person alleging the default. Any review of the Chief Commissioner’s decision is undertaken by the Administrative Decisions Tribunal or the Supreme Court, but not in its criminal jurisdiction (Taxation Administration Act 1996 (NSW) ss 96–97). 1.12 The distinction between civil and criminal matters is unclear and, as Frankfurter J put it:4 Punitive ends may be pursued in civil proceedings, and, conversely, the criminal process is frequently employed to attain remedial rather than punitive ends.

[page 5] What then distinguishes a civil penalty from a criminal punishment? In Gapes v Commercial Bank of Australia Ltd (No 2), below, the Federal Court of Australia had to consider whether s 119 of the Conciliation and Arbitration Act 1904 (Cth) provided for a criminal or a civil penalty. The section provided that where an employer had failed to pay wages in accordance with an award, certain prescribed persons could ‘sue’ for a penalty to be applied. Gapes v Commercial Bank of Australia Ltd (No 2) (1979) 27 ALR 87 Federal Court of Australia — Industrial Division Deane J: … In the absence of express statutory direction, the question whether proceedings for a statutory penalty are criminal in character can be assimilated to the question whether the act or acts in respect of which the proceedings are brought constitute a criminal offence. The answer to neither question is determined by the mere fact that the consequence of the act or acts is liability to a

penalty: ‘The recovery of a penalty, if that is the only consequence, does not make the prohibited act a crime. If it did, it seems to me that that distinction which has been well known and established in law for many years between a penal statute and a criminal enactment would fall to the ground, for every penal statute would involve a crime, and would be a criminal enactment’. … The answer to both questions must be determined by reference to the legislative intent appearing from the provisions of the relevant statute. Section 119 of the Conciliation and Arbitration Act 1904 (the Act) does not, in terms, impose any statutory obligation or prohibition. It provides that where any organization or person bound by an order or award has committed a breach or nonobservance of a term of the order or award, a penalty may be imposed at the suit of certain bodies or persons. It matters not, for the purposes of s 119, whether the relevant breach or nonobservance of s 119 of the Act be wilful or accidental. In these respects, the provisions of s 119 of the Act are to be contrasted with the provisions of s 122 which expressly provide that no person ‘shall wilfully make default in compliance with any order or award’ and which set out, at the foot of the section, a pecuniary penalty of $40 in the manner indicated by s 41 of the Acts Interpretation Act 1901 [since repealed] as appropriate for indicating that contravention of a section or a sub-section shall constitute an offence against the Act. Other sections of the Act demonstrate that the form used in s 122 is the form which the legislature has ordinarily used when it was intended that failure to comply with a provision of the Act should constitute an offence (see for example, among the preceding sections, ss 5(1), (1A) and (2), 27(5), 42(2), 42A(3), 46, 111). While all of the courts, in which proceedings for recovery of the statutory penalty might be instituted, possessed civil jurisdiction at the time the provisions of the section were first enacted, some of them did not possess criminal jurisdiction. In my view, the form and content of s 119 in its context in the Act indicate that the legislative intent was neither that breach or non-observance of any order or award should constitute a criminal offence, regardless of whether it was wilful or accidental nor that proceedings under s 119 for a penalty for such a breach should be criminal proceedings. …

1.13 With respect to Deane J, this analysis is not very helpful. To decide whether something is criminal in character by reference to whether it creates a criminal offence provides no assistance in determining in a particular case whether or not a [page 6] criminal offence has been created. If we accept that any provision that provides a penalty for engaging in prohibited conduct, or failing to engage in required conduct, is criminal, then we would readily know what was ‘criminal in character’, even if the statute that imposed the penalty did not use traditional words such as ‘offence’. 1.14 It is possible to try to distinguish ‘criminal’ offences from other, non-criminal offences because the latter are ‘not criminal in any real sense but are acts which in the public interest are prohibited under a penalty’, whereas the former are ‘truly criminal’ (see He Kaw Teh v R (1985) 157 CLR 523, extracted at 1.88). It is possible to try to define offences that are unlawful in themselves, that is, ‘unlawful otherwise than by reason of the fact that [they infringe] some statutory prohibition’ (see R v Pullman (1991) 25 NSWLR 89). But do such endeavours help in defining when a statute creates a criminal offence and when it does not? These days nearly all criminal offences are found in statutes, whether they are minor offences, such as those in the Australian Road Rules, or the most serious offences in the criminal calendar, found in the Crimes Act 1900 (NSW) (‘the Crimes Act’). To argue that something is criminal because it is criminal in itself is circular and gives us no further guidance as to whether a breach of the road traffic rules is ‘criminal’ or something else (though what else it could be is not clear). 1.15 Even ‘decriminalising’ some conduct does not take the conduct outside the criminal law. For example, in South Australia a person may be given an ‘expiation notice’ with

respect to various offences, for example, a simple cannabis offence (ie, possession of small amounts of cannabis or cannabis resin). The offender may pay the ‘fee’ due on the notice and thereby avoid prosecution. If the person does not pay the fee, he or she is deemed to be convicted of the offence alleged and fined the amount of the fee due. If the offender pays the fee, there is no conviction but the offender is, of course, out of pocket for the amount of the fee. Is possession of a small amount of cannabis in South Australia still criminal? It is popular to use a phrase such as ‘decriminalised’ to suggest that possession of small amounts of cannabis is no longer a criminal offence, that it is now something different, perhaps conduct that only attracts a ‘civil’ (rather than a criminal) penalty. The reality is, however, that possession of cannabis remains an offence under the Controlled Substances Act 1984 (SA) and a person who wishes to dispute the allegation may elect to be prosecuted rather than pay the expiation fee. Presumably, in any prosecution, the Crown will have to prove its case beyond reasonable doubt using admissible evidence, and the ‘normal’ range of penalties will apply. If a person does not pay the fee he or she is convicted by default. The use of an ‘expiation notice’ (like a traffic infringement notice) is a simple administrative arrangement. It makes no sense to say that the possession of cannabis is not a criminal offence, even in South Australia. 1.16 So when is a penalty not a ‘criminal’ penalty? Deane J stated in Gapes (see 1.12) that this is a matter to be resolved by statutory interpretation. It would seem that where the legislature uses words such as ‘offence’ and provides that any penalty is to be imposed only after ‘normal’ criminal processes, the offence is a criminal offence, but it is open to the legislature to provide for penalties that are determined by other means and these are not criminal penalties. [page 7]

1.17 The High Court of Australia had cause to consider whether or not an action for breaching the Customs Act 1901 (Cth) and the Excise Act 1901 (Cth) was civil or criminal in nature in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd, below. Gummow J said: Section 33(1) of the Customs Act imposes a prohibition upon the moving of goods subject to the control of Customs. At the relevant time, at the foot thereof a sum was stated beside the term “Penalty”. Section 5 of the Customs Act states that, where a penalty is set out at the foot of a sub-section, this indicates that a contravention of the sub-section is “an offence against this Act, punishable upon conviction by a penalty not exceeding the penalty so set out”.

1.18 Notwithstanding what appears to be a clear indication that a traditional criminal offence is intended, the Chief Executive Officer of Customs argued that the burden of proof required was the civil standard (ie, ‘on the balance of probabilities’) rather than the criminal standard of ‘beyond reasonable doubt’ (the standard of proof is discussed in more detail at 1.50). There was also debate about whether provisions of the Evidence Act 1977 (Qld) that applied in civil cases could be used by the defendant in defending the allegations against it. The problem was that, although the relevant legislation provided that there was a penalty to be applied and used the word ‘conviction’, the Customs Act provided that proceedings in a state court were to be ‘proceeded with … in accordance with the usual practice and procedure of the Court in civil cases’.5 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161; 201 ALR 1; [2003] HCA 49 High Court of Australia [Gleeson CJ and McHugh J agreed with Hayne J, as did Gummow J in a separate judgment. Kirby J in a separate judgment partially agreed with Hayne J. See 1.19.]

Hayne J: [His Honour considered the history of actions by the Crown to recover money due as well as the history of Australian Customs and Excise legislation, and continued] … Arguments founded on classification of the proceedings as “civil” or “criminal” as determinative of the standard of proof, must fail. As reference to the historical matters mentioned earlier reveals, the classification proposed is, at best, unstable. It seeks to divide the litigious world into only two parts when, in truth, that world is more complex and varied than such a classification acknowledges. There are proceedings with both civil and criminal characteristics: for example, proceedings for a civil penalty under companies and trade practices legislation. The purposes of those proceedings include purposes of deterrence, and the consequences can be large and punishing. In any event, this chain of reasoning, from an a priori classification to a conclusion about standard of proof, treats the relevant Acts as providing no more than background information when, in truth, it is with the terms of the Acts that the inquiry must begin. (For the same reason, decisions about the operation of other statutory provisions offer little assistance.) … [page 8] What does the common law require? Where what is sought is conviction of the defendant for an offence against a law of the Commonwealth, it must be strongly arguable that nothing short of proof beyond reasonable doubt will do. If no conviction is sought, but other relief is (as, for example, a declaration that the defendant contravened identified provisions of the relevant Act coupled with orders for payment of monetary penalties), it must be strongly arguable that, in proceedings conducted according to civil procedures, proof to the civil standard will suffice. No doubt, in accordance with well-established principle, if the civil standard were to be applied, “the nature of the issue [would] necessarily [affect] the process by which reasonable satisfaction is attained” and “exactness of proof [would be] expected”. Those tentative conclusions do not depend upon attributing a description of “civil” or “criminal” to the proceedings as a whole or seeking to identify some “essential character” of the proceedings. (By what process of distillation the “essential character” of

proceedings could be revealed is not apparent.) Rather, the conclusions proposed focus upon, and attach significance to, the kinds of orders which the proceedings seek. In particular, proceedings are distinguished according to whether or not they seek the conviction of the defendant for an offence. … Seeking to obtain the conviction of a person accused of contravening written or unwritten law lies at the heart of the criminal process. The fact of conviction is an important criterion for the operation of constitutional provisions and the operation of federal and State legislation. Absent statutory provision to the contrary, a conviction should not be recorded except where the requisite elements of the contravening conduct are established beyond reasonable doubt. … Other criteria which might be used to distinguish between cases in which proof beyond reasonable doubt is necessary, and those in which it is not, are unhelpful. Apart from attempting to classify proceedings as “civil” or “criminal”, the only other possible criterion advanced for consideration focused upon the penal consequences of Customs and Excise prosecutions. But penal consequences (in the form of punitive damages) can follow from proceedings which, in all other respects, would ordinarily be referred to as civil proceedings and it has not hitherto been suggested that proof beyond reasonable doubt is necessary before that kind of relief is ordered. Further, both federal and State companies legislation has provided for recovery of what are described as “civil penalties” on proof of the requisite matter to the civil standard of proof but the operation of those provisions did not, and does not, extend to proceedings for an offence. Characterising particular forms of relief sought in proceedings as “penal” offers little or no assistance in deciding what standard of proof should be applied. … [The court ordered in part that the orders of the Queensland Court of Appeal be varied by answering certain questions posed for the Court to the effect that, in order to obtain a conviction of the offences against both the Customs Act and the Excise Act, the elements of the offences must be proved beyond reasonable doubt and that the provisions of the Evidence Act 1977 (Qld), which would be applied by the Supreme Court in civil proceedings, be applied at the trial.]

1.19 Kirby J, in a separate judgment, only partially agreed with Hayne J (see 1.18). His Honour said: There remains one matter upon which I would depart from the reasons of Hayne J. This relates to the view stated concerning the significance of the penal consequences of customs and excise prosecutions for the classification of such proceedings. His Honour concludes that characterising the particular forms of relief sought

[page 9] in particular proceedings as “penal” offers little or no assistance in deciding what standard of proof is to be applied. I accept that statutory penalties exist that represent a kind of hybrid, lying somewhere between compensation, restitution and restoration (the usual business of civil process) and punishment and public denunciation (the usual business of criminal process). However, where the remedy provided envisages a public “conviction” of an “offence” and the imposition of a “penalty”, which in some circumstances in the case of a natural person is backed up by the possibility of imprisonment, it is easier than otherwise to come to a conclusion that the proper classification of the proceedings is criminal.

1.20 The effect of this discussion is to remind the reader that the distinction between civil and criminal is not clear, so that it is still possible to have discussions about whether or not what is being considered is a criminal offence. The key factor in Hayne J’s opinion in Labrador Liquor is whether or not the defendant is to be subject to a conviction (though what that term means is itself not clear), and it is the words used by the legislature in how they describe the offence that are most determinative. Kirby J placed greater weight on whether or not the consequences could be described as ‘penal’. 1.21 Labrador Liquor also shows that, regardless of how a statutory provision is classified, the standard protections of

the criminal law can be abrogated by parliament if it so chooses. In this case the court found that the various pieces of intersecting legislation did not affect the issue of the burden of proof and so Customs had to prove their case beyond reasonable doubt. There was no doubt in the opinions of the judges that if parliament had wanted to clearly provide that proof could be established on the lower, civil standard, then it could have done so. Merely describing an offence as a ‘criminal offence’ does not guarantee the protections of the criminal law if parliament chooses to abrogate those protections. 1.22 The High Court considered the difference between criminal sentencing proceedings and civil proceedings involving monetary penalties in determining whether a practice that the court had laid down for sentencing in criminal matters should also apply in proceedings for determining civil penalties. In doing so they made comments as to the difference between the purposes of proceedings for civil penalties and sentencing for criminal offences. Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 326 ALR 476; [2015] HCA 46 High Court of Australia [In Barbaro v R (2014) 253 CLR 58; 305 ALR 323 the High Court limited the submissions that could be made by the Crown in sentencing proceedings and ruled that it was wrong in principle for the Crown to indicate a quantified range of sentences that the Crown believed it was open for the court to impose. The question arose whether that same rule applied to the prosecutor in proceedings for civil penalties.] French CJ, Kiefel, Bell, Nettle and Gordon JJ: [footnotes omitted] … [page 10] [51] Contrary to the Full Court’s reasoning, there are basic

differences between a criminal prosecution and civil penalty proceedings and it is they that provide the “principled basis” for excluding the application of Barbaro from civil penalty proceedings. [52] A criminal prosecution is an accusatorial proceeding which is governed by the fundamental principle that the burden lies in all things upon the Crown to establish the guilt of the accused beyond reasonable doubt and by the companion rule that the accused cannot be required to assist in proof of the offence charged. [53] Civil penalty proceedings are civil proceedings and therefore an adversarial contest in which the issues and scope of possible relief are largely framed and limited as the parties may choose, the standard of proof is upon the balance of probabilities and the respondent is denied most of the procedural protections of an accused in criminal proceedings. [54] Granted, both kinds of proceeding are or may be instituted by an agent of the state in order to establish a contravention of the general law and in order to obtain the imposition of an appropriate penalty. But a criminal prosecution is aimed at securing, and may result in, a criminal conviction. By contrast, a civil penalty proceeding is precisely calculated to avoid the notion of criminality as such. [55] No less importantly, whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance: Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act]. … The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to

deter repetition by the contravenor and by others who might be tempted to contravene the Act. [56] Moreover, in criminal proceedings the imposition of punishment is a uniquely judicial exercise of intuitive or instinctive synthesis of the sentencing facts as found by the sentencing judge (consistently with the jury’s verdict) and the judge’s relative weighting and application of relevant sentencing considerations in accordance with established sentencing principle. There is no room in an exercise of that nature for the judge to take account of the Crown’s opinion as to an appropriate length of sentence. For the purposes of imposing a criminal sentence, the question is what the judge considers to be the appropriate sentence. Nor can there be any question of a sentencing judge being persuaded by the Crown’s opinion as to the range of sentences open to be imposed. As was observed in Barbaro, apart from the conceptually indeterminate boundaries of the available range of sentences and systemic problems which would likely result from a criminal sentencing judge being seen to be influenced by the Crown’s opinion as to the available range of sentences, the Crown’s opinion would in all probability be informed by an assessment of the facts and relative weighting of pertinent sentencing considerations different from the judge’s assessment. That is why it was held in Barbaro that it is inconsistent with the nature of criminal sentencing proceedings for a sentencing judge to receive a submission from the Crown as to the appropriate sentence or even as to the available range of sentences. [57] In contrast, in civil proceedings there is generally very considerable scope for the parties to agree on the facts and upon consequences. There is also very considerable scope for them to agree upon the appropriate remedy and for the court to be persuaded that it is an appropriate remedy. Accordingly, settlements of civil proceedings are [page 11] commonplace and orders by consent for the payment of damages and other relief are unremarkable. So are court-approved compromises of proceedings on behalf of infants and persons otherwise lacking capacity, court-approved custody and property settlements, court-approved compromises in group proceedings

and court-approved schemes of arrangement. More generally, it is entirely consistent with the nature of civil proceedings for a court to make orders by consent and to approve a compromise of proceedings on terms proposed by the parties, provided the court is persuaded that what is proposed is appropriate. [58] Possibly, there are exceptions to the general rule. There is, however, no reason in principle or practice why civil penalty proceedings should be treated as an exception. Subject to the court being sufficiently persuaded of the accuracy of the parties’ agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and, for the reasons identified in Allied Mills, highly desirable in practice for the court to accept the parties’ proposal and therefore impose the proposed penalty. To do so is no different in principle or practice from approving an infant’s compromise, a custody or property compromise, a group proceeding settlement or a scheme of arrangement.

1.23 At this stage of our discussion we have seen that clearly identifying when something is criminal and when it is not is not always easy. The discussion so far has left us with perhaps the unsatisfying conclusion that a crime is whatever parliament chooses to criminalise. Many crimes are well established and are accepted as examples of behaviour that should be prohibited and punished by the state where they occur. What we have seen, however, is that the state can punish other conduct without relying on the criminal law, for example, by imposing civil penalties, and the reach of the criminal law is not subject to very real or practical restraints. Parliament can choose to make merely ‘inconvenient’ conduct criminal. 1.24 Notwithstanding these realities, the standards of the criminal law are not dispensed with lightly and the state devotes a great many resources to maintaining a criminal justice system. Why, then, do we need a system of criminal laws and criminal legal processes?

ROLE OF CRIMINAL LAW 1.25 In the 2000 Boyer Lectures delivered on ABC Radio National, the Chief Justice of Australia, the Hon Murray Gleeson AC QC, argued that justice and liberty survive only in a community where there is respect for the principle that ‘we are ruled by laws and not by people’.6 He identified the role of the law as being to limit power, not just of individuals but also of governments and the state. The criminal law is one particular example of the law operating to regulate the relationship between the state and the individual, particularly as the consequences for the individual of abuse of power by the state can be as significant as deprivation of freedom and liberty. [page 12] 1.26 The Chief Justice also identified a purpose of the criminal law as being ‘to keep the peace, so that people can lead their lives, and go about their affairs, in reasonable security’.7 The criminal law does this to a limited extent by attempting to control the behaviour of individuals for the protection of all. The criminal law is used to prohibit conduct, such as deliberate killing, driving in excess of the speed limit, or failing to lodge a tax return, and threatens punishment for those who fail to obey these legal commands. This legal prohibition and threat of punishment means that our liberty to do what we like is, to some extent at least, restrained by the criminal law, but this is accepted as it promotes a safer environment where most people can go about their business protected from interference from others. 1.27 Perhaps in recognition of the limited ability of the criminal law to control aberrant human behaviour, the New South Wales Parliament passed the Community Protection Act 1994. This was an Act designed to give the Supreme

Court of New South Wales the power to order that one individual, Gregory Kable, be detained in prison, not for what he had done, but for what he might do. If the court was satisfied that Kable was ‘more likely than not’ to commit an act of violence, he could be detained in prison for up to six months. When considering whether or not the Act was a valid law, Mahoney JA identified the problem that the criminal justice system has with preventing crime. Kable v DPP (1995) 36 NSWLR 374 NSW Court of Appeal Mahoney JA: … One of the essential purposes of the criminal law, if not its fundamental purpose, is to protect men and women against violence. There is, it has been suggested, a gap in the protection which traditionally the criminal law affords. The gap lies in the prevention of violence, as distinct from the punishment of violence after it has been committed. If it be clear to demonstration that A proposes tomorrow to murder B, the law does not authorise the arrest or detention of A to prevent him doing so. A may, of course, be watched. He may, if his intention becomes a threat or an attempt, be arrested to answer the charge that he has so threatened or attempted to murder. But he may not be arrested or detained merely because he intends murder. In view of what has been said about the Community Protection Act, it is proper to examine further what I mean by such a gap. If it be clear that A intends to murder or to do violence to B, it is possible to bring A before a court on summons and to bind him over to keep the peace; at least, it is asserted that this may be done. A may be summoned to appear before a magistrate and, if his intent be proved, it may be that an order can now be made against him under the apprehended violence legislation. If he makes threats in a particular form, for example, by writing through the postal service or otherwise within the Crimes Act 1914 (Cth), s 85S, he may be charged with such an offence and arrested. To an extent, these provisions and provisions of this kind provide safeguards against A doing violence to B in the sense that, if his violence be sufficiently apprehended, he may be arrested and held

in custody to answer such charges. But it is, I think, accepted that in principle the fact that A firmly intends to murder or to do violence to B tomorrow does not provide a basis as such for the arrest and detention of A so as to prevent that violence being done.

[page 13] 1.28 The Court of Appeal found in Kable that the Community Protection Act 1994 (NSW) was a valid law of New South Wales. This decision was overturned by the High Court of Australia which found, by majority, that the law infringed the doctrine of separation of powers contained in Chapter III of the Constitution (see Kable v DPP (1997) 189 CLR 51; 138 ALR 577). The ruling by the High Court was based on how the legislation was to operate and the role given to the state Supreme Court. The court did not say that similar legislation could not be validly made in the future. Similar legislation was passed in Queensland and considered by the High Court in Fardon v Attorney-General (Qld) and will be discussed in detail at 1.44. 1.29 The criminal law is a blunt instrument when it comes to restraining the behaviour of individuals. Although some conduct that merely threatens violence, for example, assault (see 5.5), is, without more, a crime and can lead to a person being arrested and perhaps imprisoned, the criminal law can usually apply only after the violence or other damage has been perpetrated. Because of this, the ability of the criminal law to stop people committing crimes depends on an individual’s appreciation that his or her conduct is criminal, the likelihood of detection and prosecution, the person’s fear of possible punishment, and his or her own socialisation into the values that the law is purporting to uphold. But most people who are in prison are there because they commit the same kind of crime over and over again.8

Restraining the state

1.30 The ineffectiveness of the criminal law in addressing the factors which keep the crime rate in our society more or less constant9 does not mean that the criminal law is ineffective in protecting the liberty of the citizen. The criminal law and the law of criminal procedure stand between the citizen and the state to ensure that the state (the police and the government) does not take action against or impose a punishment on a citizen, except according to law. The law, including the criminal law, ‘provides a shield for individuals from arbitrary state action’.10 1.31 Subject to the above discussion about civil penalties, it is a fundamental tenet of our system of justice according to law that no person is to be found ‘guilty’ of a crime and subject to punishment unless that guilt is based upon the law. This principle has been handed down since at least 1215, when Magna Carta11 provided that: (39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

[page 14] (40) To no one will we sell, to no one deny or delay right or justice.

In the United States, the Fifth Amendment to the Constitution states: No person shall … be deprived of life, liberty, or property, without due process of law.

1.32 It is a fundamental principle that guilt or innocence is determined by law, not by moral outrage, likes or dislikes. As Mahoney JA said in Kable v DPP (1995) 36 NSWLR 374 at 378: Laws which provide for criminal sanctions should be in plain

terms; the conduct for which punishment is imposed should be able clearly to be identified and proved; and, as far as may be, that which is to be punished should not depend upon assessments, value judgments, or the like, whether they are made by courts or law enforcement authorities.

1.33 The criminal law and the processes of the criminal courts stand between the state and the citizen to ensure that these rules are observed. Nicholas Cowdery QC, writing as the NSW Director of Public Prosecutions (DPP) and hence the person then responsible for the prosecution of offences in New South Wales, saw the restraint of state power as a fundamental part of the criminal law. Getting Justice Wrong Nicholas Cowdery QC Allen and Unwin, Sydney, 2001, pp 1–6 Crime is everywhere and nobody is immune from it. Since humankind first ordered its society by setting rules there have been rule-breakers and there always will be. While a crimefree society is a worthy goal, history and common experience teach us that it is unattainable. The best we can hope to achieve is an acceptable level of crime control, balancing police measures against the freedom to be enjoyed in an open society. And while crime continues, all of us are at some risk of being affected by it. That is an unavoidable fact and we must all learn to live with it — and, if we can, to minimise our risk. … Those with knowledge of the criminal justice process and of its place in society protest against this simplified picture. They also have an interest in informing the public, but as fully and accurately as possible. That is difficult to do in the era of the sound bite and shortened attention spans. Their arguments are not simple, and not black and white, because they know that is not the nature of the problem, the issues or the solutions. They do their best in a measured, considered and detailed way, but such attempts get little exposure. Ignorance boosts the ratings and the circulation figures. Those who know find it difficult to compete against those who apparently do not. So what is there to know? How is it, for example, that our

present system has come about? Over centuries society has put rules in place and established ways of dealing with the rule-breakers. Those methods have been modified by experience, by trial and error. As the responsibility for law enforcement passed to the state — the sovereign or executive government — an imbalance of power was created. The state, with all its resources, prosecuting in its own courts, brings its full weight against (usually) an individual of limited power and means. Without procedural safeguards — checks in place at all stages of proceedings against an individual — there is the potential for injustice to occur. [page 15] As our numbers have grown and the structure of our community and its institutions and its activities have become more complex, the systems and processes — and the safeguards — have also had to become more complex and detailed. They have also had to respond to standards set internationally by bodies such as the United Nations. The first and most important safeguard of the rights of you, the individual, against any misuse of the power of the state, is the existence of the third arm of government — an independent judiciary. The three separate arms of government are the legislature (the Parliament which makes the laws), the executive (the ministers and the government departments under their administration) and the judiciary (the courts, comprising judges and magistrates). In our system of government the three arms are intended to be independent of each other, not subject to inappropriate influence by another. For example, the executive (including ministers and bureaucrats) cannot tell the courts (the judges) how to decide cases. Nor can the Parliament. This separation is demonstrated within the courtroom. In criminal cases the executive power is the prosecutor. The prosecutor cannot also be the judge: you cannot have somebody making allegations and also deciding if those allegations are true. There are rules to ensure that the judiciary exists and acts independently of the executive. It also acts independently of the

legislature (Parliament), the lawfulness of whose conduct it sometimes has to judge in cases brought before the courts. Another example of this separation of powers in practice is that the courts, not the Parliament (the legislature), must impose penalties for criminal offending — although they do so within ranges set by the legislature. … Another safeguard for the individual is the presumption of innocence. An accused person is presumed to be innocent unless and until proven guilty in court. We have an adversarial system in this country where the state is one party in contest against another party, the individual accused person. They are adversaries. The dice would be loaded unfairly if the accused was presumed to be guilty and had to prove innocence. Operational and procedural safeguards for the individual apply to the police (and other investigative agencies, which are part of the executive) and the courts. It might be said that there is a series of gateways through which a suspected or accused person must pass on the journey to conviction and punishment. Unless each gateway is negotiated satisfactorily, the journey stops and the suspect or accused goes free. The reason for the existence of the gateways is the prevention of injustice and abuse of the weak at the hands of the strong (the community at large). The gateways are there to attempt to ensure fairness in the criminal justice process — but it must be fairness to both the accused and the community. A balance is always required when fairness is to be achieved and sometimes it is difficult to strike the right one. If that balance isn’t struck — or seen to be struck — that is when we hear howls like John Laws’ “Australia’s judicial system is really a joke today …” or the Chief Minister and Attorney General of the Northern Territory’s extraordinary declaration in 2000 that the justice system is “totally corrupt”. The system can always be improved, but the process of reform is inherently cautious. It moves more slowly than some people might want, but that may be no bad thing. People’s rights are being affected in significant ways and we should not be anxious to rush into mistakes. We should resist demands for instant change for the sake of change — an alteration in one respect is likely to have effects elsewhere, not all of which may be foreseeable at the time.

We should be careful not to create a monster worse than we already have.

[page 16] 1.34 Traditionally, the criminal law provides safeguards which seek to ensure that, if an individual is to be punished by the state, the state must have clearly set out, in advance, what conduct is prohibited and it must prove, beyond reasonable doubt, that the individual did what was prohibited. Then and only then might the person be labelled a ‘criminal’, and then and only then might a punishment be imposed by an independent judicial officer (judge or magistrate). 1.35 The role of the criminal law as a limit on the power of the state is also reflected in the need to ensure a fair trial. The laws of criminal procedure are designed to ensure that an accused person is found guilty of a criminal offence only when steps have been taken to ensure that he or she is judged on legally admissible evidence in a trial that has been conducted according to law. The courts are not instruments of the state designed to impose punishments when the state or public opinion demands it; rather, the courts are instruments that stand between the state (the prosecutor) and the citizen (the defendant) to ensure that the state proves its case in circumstances that are fair to both sides. 1.36 In Dietrich v R (1992) 177 CLR 292; 109 ALR 385 at 408 Deane J said (footnotes omitted): Traditionally, the law’s insistence that a person not be convicted of a crime except after a fair trial has been conveniently, albeit slightly inaccurately, expressed in terms of a ‘right to a fair trial’. Thus, for example, Isaacs J in R v Macfarlane; Ex parte O’Flanagan and O’Kelly referred to ‘the elementary right of every accused person to a fair and impartial trial’ and added some well-known words which merit further repetition:

That such a right exists as a personal right seems to me so deeply rooted in our system of law and so elementary as to need no authority to support it. It is a right which inheres in every system of law that makes any pretension to civilization. It is only a variant of the maxim that every man is entitled to his personal liberty except so far as that is abridged by a due administration of the law. Every conviction set aside, every new criminal trial ordered, are mere exemplifications of this fundamental principle. And if the right be admitted, it would be an empty thing, unless the law adequately protected it. It seems necessary, however, to adduce authority. Fortunately it is clear and weighty …

1.37 Justice, on this model, is more than merely securing the conviction of guilty persons. Justice is justice only if it is justice according to law. A just result is obtained when a person is given a fair trial according to the rules that apply and is judged according to law. A significant function of the criminal law (both substantive and procedural) is thus to impose a limit on the state’s power: to ensure that people accused of crimes are dealt with fairly and according to law and to act as the arbiter between the state (prosecutor) and the individual.

BILL OF RIGHTS 1.38 The discussion of the ability of the criminal law to provide protection against arbitrary punishment must be tempered by the realisation that, without a bill of rights, the protection offered by the criminal law is limited. As we have seen at 1.1–1.24, there are few real limitations on the power of a legislature to impose [page 17]

civil penalties or to reduce the burden of proof. These powers can be used to allow favoured sectors of society to avoid the stigma of the criminal process. But they can also be used to inflict what, in reality if not name, is a criminal punishment, while failing to respect the requirements and protections of the criminal process. A penalty that is not the subject of the legal protections afforded in a criminal proceeding may have the same effect on a person’s life, livelihood and reputation as a criminal penalty in the traditional sense. 1.39 Under the European Convention on Human Rights (ECHR), certain rights and protections are guaranteed to members of the European Union who face criminal charges. If a member state could avoid those provisions by simply labelling some penalty as something other than a ‘criminal’ penalty and by providing for some process other than the normal criminal process, the rights protected by the ECHR would be meaningless. Accordingly the European Court of Human Rights does not look at the mere label that is applied to a provision, but to the actual substance of what is involved. Han v Commissioners of Customs and Excise (see below) involved the imposition of penalties similar to those discussed at 1.12, above. Here, penalty provisions were applied to various shop owners for failing to give proper returns to allow VAT (value added tax) and other duties to be calculated. The Court of Appeal had to decide if these were ‘criminal’ penalties and whether or not the rights of the accused had been properly respected and honoured. By majority it was held that the penalties were criminal penalties, despite the claim that the English Parliament had made a regime of civil penalties. The result of that finding was that a person facing allegations that he or she had failed to comply with the law was entitled to the protections provided for in the Convention. Han v Commissioners of Customs and Excise

[2001] 4 All ER 687 England and Wales Court of Appeal Potter LJ: … Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court. It is not in dispute between the parties that … case law makes clear that the concept of a ‘criminal charge’ … has an ‘autonomous’ convention meaning (see Engel v Netherlands (No 1) (1976) 1 EHRR 647 at 677–678 (para 81)). There are effectively three criteria applied by the Strasbourg Court in order to determine whether a criminal charge has been imposed (see Engel’s case and more recently AP v Switzerland (1997) 26 EHRR 541 at 558 (para 39)). They are: (a) the classification of the proceedings in domestic law; [page 18] (b) the nature of the offence; and (c) the nature and degree of severity of the penalty that the person concerned risked incurring. The Strasbourg Court does not in practice treat these three requirements as analytically distinct or as a ‘three-stage test’, but as factors together to be weighed in seeking to decide whether, taken cumulatively, the relevant measure should be treated as ‘criminal’. When coming to such decision in the course of the court’s ‘autonomous’ approach, factors (b) and (c) carry substantially greater weight than factor (a).

[His Lordship reviewed the Strasbourg case law and continued:] … [I]n considering the three criteria routinely applied by the Strasbourg Court for the purpose of determining whether the applicant is the subject of a ‘criminal charge’, the first criterion, namely the categorisation of the allegation in domestic law, is no more than a starting point for the classification, and is not decisive of the nature of the allegation. If the offence the subject of the allegation is not criminalised by the national law, the court determines whether it is none the less criminal in character for the purposes of art 6 of the ECHR by proceeding to the second and third criteria, namely the nature of the offence and the severity of the penalty which it invokes. … Under the second criterion, the court considers whether or not, under the law concerned, the ‘offence’ is one which applies generally to the public at large or is restricted to a specific group. If the former, then despite its ‘de-criminalisation’ by the national law, it is apt to be regarded as criminal. Further, if a punitive and deterrent penalty is attached, it is likely to be regarded as criminal in character, even in cases where the penalty is in the nature of a fine rather than imprisonment. On the other hand, where the offence is limited to a restricted group, as is generally the case in relation to disciplinary offences, the court is unlikely to classify a charge under the applicable disciplinary or regulatory code as criminal, at least unless it involves or may lead to loss of liberty. … [Mance LJ agreed. Sir Martin Nourse dissented. Appeal allowed.]

1.40 Under European law the mere classification by the legislature that a provision is not criminal does not determine the matter, but if, as Deane J suggested in Gapes (see 1.12), an Australian legislature can draw a distinction between civil and criminal penalties simply by use of words and procedure, then the protection that we hope is provided by the criminal law, without a binding bill of rights, is reasonably weak. Without a bill of rights a New South Wales court cannot determine that a penalty is correctly labelled criminal, and insist that any accused person must be given the standard protections of the criminal law; for example, the

right to face his or her accusers in a trial governed by law and that the case be proved beyond reasonable doubt. 1.41 In Victoria and the Australian Capital Territory, where there is ‘human rights legislation’,12 the courts may find that particular legislation is incompatible or inconsistent with stated rights,13 including the rights that are to be extended to defendants in criminal proceedings.14 Such a declaration does not, however, invalidate the law and, although there would be political pressure on a government [page 19] to ensure the laws are consistent with the stated human rights, it is ultimately open to the parliament to make laws inconsistent with the stated human rights. 1.42 New South Wales and Australian law is beginning to move away from the proposition that people can only be detained after they have been found guilty of a criminal offence. Traditionally preventative detention, that is, detaining people because of what they might do, rather than what they have done, was considered an affront to basic legal principles. In Kable v DPP (1997) 189 CLR 51 (see 1.27) the High Court found that New South Wales legislation introduced to keep Kable in gaol after he had completed his sentence was unconstitutional and invalid. The basis for its decision was that the jurisdiction given by the Act to the New South Wales Supreme Court was inconsistent with the court’s function in the federal judicial system. Under the Australian Constitution there is a strict division between the administrative arm of government and the judicial arm, and this Act infringed that distinction. The decision was thus based on form. The legislature could order that a person be detained, but the Supreme Court could not be involved in that process. As for detention, McHugh J said at 121: The Parliament of New South Wales has the constitutional

power to pass legislation providing for the imprisonment of a particular individual. And that is so whether the machinery for the imprisonment be the legislation itself or the order of a Minister, public servant or tribunal. Moreover, there is no reason to doubt the authority of the State to make general laws for preventive detention when those laws operate in accordance with the ordinary judicial processes of the State courts. However, whatever else the Parliament of New South Wales may be able to do in respect of the preventive detention of individuals who are perceived to be dangerous, it cannot, consistently with Ch III of the Constitution, invoke the authority of the Supreme Court to make the orders against the appellant by the methods which the Act authorises. This is because the Act and its procedures compromise the institutional impartiality of the Supreme Court.

Gummow J said at 131–132: The present case is not one of incarceration by legislative or executive fiat. The involuntary detention of the appellant is brought about by orders of the Supreme Court in exercise of what is described in s 24 as its “jurisdiction” under the Act. I have referred to the striking features of this legislation. They must be considered together. But the most significant of them is that, whilst imprisonment pursuant to Supreme Court order is punitive in nature, it is not consequent upon any adjudgment by the Court of criminal guilt. Plainly, in my view, such an authority could not be conferred by a law of the Commonwealth upon this Court, any other federal court, or a State court exercising federal jurisdiction. Moreover, not only is such an authority non-judicial in nature, it is repugnant to the judicial process in a fundamental degree.

1.43 Thus, in Kable it was not administrative detention per se that was ruled contrary to law, but the role of the court in that process. Where a legislature seeks to provide that a Minister of the Crown can order a person to be detained, that would not contravene the Constitution, even though, as Gleeson CJ observed, there is a paradox in this. Gleeson CJ

said in Fardon v Attorney-General (Qld) (2004) 223 CLR 575; 210 ALR 50; [2004] HCA 46 at [2]: It might be thought surprising that there would be an objection to having detention decided upon by a court, whose proceedings are in public, and whose decisions are subject to appeal, rather than by executive decision.

[page 20] Notwithstanding the decision in Kable, the Queensland Parliament introduced the Dangerous Prisoners (Sexual Offenders) Act 2003 to provide for the ongoing detention of prisoners who pose a risk to the community but who have served their sentences for what they have done. Now they may be detained in prison for what they might do. 1.44 The Queensland legislation was found to be a valid exercise of legislative power in Fardon v Attorney-General (Qld). Only Kirby J, dissenting, gave the issue of the rights of a person under the criminal law full discussion. Fardon v Attorney-General (Qld) (2004) 223 CLR 575; 210 ALR 50; [2004] HCA 46 High Court of Australia Kirby J (dissenting): [footnotes omitted] 148. There are five features in the Act which, combined, indicate an attempted imposition upon the judges of the Supreme Court of Queensland functions repugnant to Ch III of the federal Constitution as explained in Kable. These features severally authorise the Supreme Court, contrary to traditional judicial process in Australia, to order: 1.

The civil commitment of a person to a prison established for the reception of prisoners, properly so-called;

2.

The detention of that person in prison, in the absence of a new crime, trial and conviction and on the basis of the assessment of future re-offending, not past offences;

3.

The imprisonment of the person in circumstances that do not

conform to established principles relating to civil judicial commitment for the protection of the public, as on a ground of mental illness; 4.

The imposition of additional judicial punishment on a class of prisoners selected by the legislature in a manner inconsistent with the character of a court and with the judicial power exercised by it; and

5.

The infliction of double punishment on a prisoner who has completed a sentence judicially imposed by reference, amongst other things, to the criterion of that person’s past criminal conduct which is already the subject of final judicial orders that are (or shortly will be) spent at the time the second punishment begins.

149. I shall explain each of these disqualifying considerations in turn. It is their cumulative effect that brings the Act into conflict with the principle stated in Kable. 150. Civil commitment unknown to law: Generally speaking, in Australia, the involuntary detention of a person in custody by any agency of the state is viewed as penal or punitive in character. In Australian law, personal liberty has always been regarded as the most fundamental of rights. Self-evidently, liberty is not an absolute right. However, to deprive a person of liberty, where that person is otherwise entitled to it, is a grave step. If it is to extend for more than a very short interval, such as may properly be entrusted to officials in the Executive Government, it requires the authority of a judicial order. 151. These rules explain a fundamental principle that lies deep in our law. Ordinarily, it requires officers of the Executive Government, who deprive a person of liberty, to bring that person promptly before the judicial branch, for orders that authorise, or terminate, the continued detention. The social purpose behind these legal obligations is to divorce, as far as society can, the hand that would deprive the individual of liberty from the hand that authorises continued detention. The former, which normally lies in the Executive [page 21] branch, is taken to be committed to the deprivation of liberty for

some purpose. The latter is taken to be independent and committed only to the application in the particular case of valid laws. The operation of the writ of habeas corpus is another assurance, afforded to the judiciary, requiring the prompt legal justification of any contested deprivation of liberty. So precious does our legal system regard every moment of personal freedom. The scrutiny of a justification of the deprivation of liberty must not be perfunctory. It is a real and solemn responsibility of the judiciary, rooted in our constitutional history. … 153. The necessary involvement of the judiciary in adjudging and punishing criminal guilt is a fixed feature of the courts participating in the integrated judicature of the Commonwealth, provided for in the Constitution. Precisely because liberty is regarded as so precious, legal provisions derogating from liberty (and especially those that would permit the Executive Government to deprive a person of liberty) are viewed by courts with heightened vigilance. Normally, a law providing for the deprivation of the liberty of an individual will be classified as punitive. As a safeguard against expansion of forms of administrative detention without court orders, our legal system has been at pains to insist that detention in custody must ordinarily be treated as penal or punitive, precisely because only the judiciary is authorised to adjudge and punish criminal guilt. Were it otherwise, it would be a simple matter to provide by law for various forms of administrative detention, to call such detention something other than ‘punishment’, and thereby to avoid the constitutional protection of independent judicial assessment before such deprivation is rendered lawful. 154. It is true that a limited number of exceptions to this constitutional scheme have been acknowledged by this Court. They include immigration detention of ‘unlawful non-citizens’ for the purposes of deportation or to enable an application for an entry permit to be made and determined; quarantine detention for reasons of public health; detention of the mentally ill and the legally insane for the protection of the community; and analogous non-punitive, protective orders permitted by valid legislation. This Court has assumed, or suggested, that the imposition by federal and State courts of sentences that involve indefinite periods of imprisonment is compatible with Ch III. Such provisions have a

long history. In intermediate courts, they have been held compatible with Kable. This Court has also made it clear that the list of permissible burdens upon liberty, classified as ‘non-punitive’, is not closed. 155. Nonetheless, where, as in the case of the Act, a new, different and so far special attempt is made by State legislation to press the judiciary into a function not previously performed by it, it is necessary to evaluate the new role by reference to fundamental principles. The categories of exception to deprivations of liberty treated as non-punitive may not be closed; but they remain exceptions. They are, and should continue to be, few, fully justifiable for reasons of history or reasons of principle developed by analogy with the historical derogations from the norm. Deprivation of liberty should continue to be seen for what it is. For the person so deprived, it will usually be the worst punishment that our legal system now inflicts. In Australia, punishment, as such, is reserved to the judiciary in a case following an established breach of the law. For that the offender ‘can be punished [but] for nothing else’. 156. In the case of the Act, the drafter has not even attempted a change of nomenclature to disguise the reality of the order assigned to the judiciary in a case such as that affecting the appellant. The person the subject of the order is a ‘prisoner’, convicted of a previous crime. He or she is already detained in prison and must be so at the time of the application and order. If the order under the Act is made, he or she is nominally detained as a ‘serious danger to the community’. However, such continued detention is served in a prison and the detainee, although having completed the service of imprisonment, [page 22] remains a ‘prisoner’. The detention continues under the ‘continuing detention order’. From the point of view of the person so detained, the imprisonment ‘continues’ exactly as it was. 157. Where a court is concerned with the constitutional character of an Act, its attention is addressed to actuality, not appearances. Were it otherwise, by the mere choice of legislative language and the stroke of a pen, the requirements of the Constitution could be circumvented.

… 159. … Invalidity does not depend on verbal formulae or the proponent’s intent. It depends upon the character of the law. Effectively, the Act does not provide for civil commitment of a person who has completed a criminal sentence. Had it done so, one would have expected commitment of that person to a different (non-prison) institution, with different incidents, different facilities, different availability of treatment and support designed to restore the person as quickly as possible to liberty, which is that person’s ordinary right as a human being in Australia and under the protection of its Constitution and laws. 160. Occasionally, for a very short interval and in exceptional circumstances, civil commitment to prison may occur. But that is not the character of the Act. It contemplates lengthy commitment, generally with assessment and reassessments at annual intervals. In Australia, we formerly boasted that even an hour of liberty was precious to the common law. Have we debased liberty so far that deprivation of liberty, for yearly intervals, confined in a prison cell, is now regarded as immaterial or insignificant? Under the Act, just as in the law invalidated in Kable, the prisoner could theoretically be detained for the rest of the prisoner’s life. This could ensue not because of any past crime committed, but because of a prediction of future criminal conduct. 161. In the United States, where post-sentence detention legislation has been enacted, such continuing detention is ordinarily carried out in different facilities, controlled by a different governmental agency, with different features to mark the conclusion of the punitive element of the judicial sentence and the commencement of a new detention with a different quality and purpose. The Queensland Act does not even pretend to make such distinctions. The realities are unashamedly displayed. The punitive character of the Act is indicated by the precondition for its orders (that the subject is a ‘prisoner’ convicted of criminal offence(s)); by the requirement that the Court have regard to ‘the prisoner’s antecedents and criminal history’ for which inferentially the prisoner has previously been punished; and by the obligation imposed by the Act to retain the prisoner in a corrective services facility under an order accurately described as a ‘continuing detention order’. A clearer indication could not be given that the

past ‘detention’ of punitive imprisonment, judicially imposed, is to ‘continue’. 162. On its face, the Act hardly makes any effort to pretend to a new form of ‘civil commitment’. To the extent that it does, it fails to disguise its true character, namely punishment. And, by Australian constitutional law, punishment as such is reserved to the judiciary for breaches of the law. An order of imprisonment as punishment can therefore only be made by a court following proof of the commission of a criminal offence, established beyond reasonable doubt where the charge is contested, in a fair trial at which the accused is found guilty by an independent court of the offence charged. Here there has been no offence; no charge; no trial. Effectively, the presumption of innocence has been removed. Instead, because of a prisoner’s antecedents and criminal history, provision is made for a new form of additional punishment utilising the courts and the corrective services system in a way that stands outside the judicial process hitherto observed in Australia. Civil commitment to prison of persons who have not been [page 23] convicted of a crime is inconsistent with, and repugnant to, the exercise of the judicial power as envisaged by the Constitution. 163. Predictive superadded imprisonment: Although the features of the criminal process in the common law have taken a ‘meandering course’ over many centuries it has been fundamental, until now, that (save for the remand of accused persons awaiting trial who are not granted bail) imprisonment has followed final proof of crime. It has not anticipated the crime. Even remanded prisoners are imprisoned for defined and generally limited periods and after a fresh crime is alleged to have occurred. In our system of criminal justice, prisons are therefore a place of punishment for past wrongdoing. By a sentence that includes imprisonment, a judge communicates the censure of society deserved by the prisoner for proved past crimes. Imprisonment is not used as punishment in advance for crimes feared, anticipated or predicted in the future. To introduce such a notion of punishment, and to require courts to impose a prison sentence in respect of perceived future risks, is a new development. It is one fraught with dangers and ‘inconsistent with traditional judicial process’.

164. The focus of the exercise of judicial power upon past events is not accidental. It is an aspect of the essential character of the judicial function. Of its nature, judicial power involves the application of the law to past events or conduct. Although, in discharging their functions, judges are often called upon to predict future happenings, an order imprisoning a person because of an estimate of some future offence is something new and different. 165. Simply calling the imprisonment by a different name (‘detention’) does not alter its true character or punitive effect. Least of all does it do so in the case of an Act that fixes on the subject’s status as a ‘prisoner’ and ‘continues’ the type of ‘detention’ that previously existed, that is, punitive imprisonment. Such an order, superimposed at the end of judicial punishment for past crimes, must be distinguished from an order imposing imprisonment for an indeterminate period also for past crimes that is part of the judicial assessment of the punishment for such crimes, determined at the time of sentencing. There, at least, the exercise of judicial power is addressed to past facts proved in a judicial process. Such a sentence, whatever problems it raises for finality and proportionality, observes an historically conventional judicial practice. It involves the achievement of traditional sentencing objectives, including retribution, deterrence and incapacitation applied prospectively. It does not involve supplementing, at a future time, a previously final judicial sentence with new orders that, because they are given effect by the continuation of the fact of imprisonment, amount to new punishment beyond that already imposed in accordance with law. 166. Properly informed, the public understands the role of judges in ordering the deprivation of liberty on the basis of proved breaches of the law in the past. The introduction of a power to deprive persons of liberty, and to commit them to prison potentially for very long, even indefinite, periods on the basis of someone’s estimate of the risk that they will offend in the future, inevitably undermines public confidence in the courts as places exhibiting justice to all, including those accused and previously convicted of serious crimes. A court in the position of this Court is always obliged to test a novel law by what would occur if the novelty became common or repeated or is taken to its logical extent. The Act, if valid, opens the way for future instances of preventative

detention in prison, based on prediction. Such a departure from traditional judicial functions is constitutionally impermissible. 167. Beyond mental illness orders: But can it be said that the orders permitted under the Act are, or are analogous to, civil commitment for mental illness? Although the predicted dangerousness of sexual offenders, based on past conduct, might not involve proof of a mental illness in the usual sense of that term, is it sufficiently analogous to [page 24] allay constitutional concerns based on the novelty of the function committed by the Act to a State court? 168. Certainly, before a ‘continuing detention order’ is made under the Act, there is no requirement for a finding as to mental illness, abnormality or infirmity in the accepted sense. In his Second Reading Speech on the Bill that became the Act, the respondent Attorney-General made it clear that the Act was not founded on concepts of mental illness. This is perhaps understandable given that considerations of mental illness may lead to reducing, not increasing, criminal punishment. Section 8(2)(a) of the Act authorises the Supreme Court to make ‘an order that the prisoner undergo examinations by 2 psychiatrists named by the court who are to prepare independent reports’. By s 11(2) of the Act, there is no requirement for a diagnosis of mental illness, abnormality or infirmity. Nothing in the Act requires such a diagnosis, or finding by the court, to justify the exercise of the court’s powers under ss 8 or 13 of the Act. The inquiry required of the court must simply focus on the risk of re-offending. It operates on a prediction as to future conduct based on estimates of propensity that would ordinarily be inadmissible in a judicial trial conducted to adjudge whether a person was liable to be sentenced to imprisonment. It follows that the civil commitment envisaged by the Act is based on estimates of re-offending unaccompanied by any requirement on the part of the court to make a finding of the existence of a recognised mental illness, abnormality or infirmity. 169. These and related features of the Act illustrate the novelty of its provisions; their departure from the mental health exception for civil commitment deemed to fall short of ‘punishment’; and the free hand given to the psychiatric witnesses upon whose evidence the

Act requires the State court to perform its function. In effect, the psychiatrists are allowed to estimate dangerousness without any accompanying requirement to anchor such estimations in an established mental illness, abnormality or infirmity. Because such predictions involve guesswork and are notoriously unreliable at the best of times, such functions cannot be imposed on judges divorced from an appropriate footing based on an established mental illness, abnormality or infirmity. It is that established foundation that gives the assurance necessary to justify detention based on a prediction depending on more than the contestable and fallible predictive capacity, absent a recognised and wellestablished mental disease of settled and describable features. 170. It is true that bail decisions will often be made by reference to predictive considerations. Commonly, such decisions require a court to evaluate whether an accused will appear to answer the charge at a trial, will interfere with the safety or welfare of a victim or witness or will be harmed or commit self-harm. In other countries, constitutional courts have rejected the use in bail decisions of considerations of the possibility that the accused will commit further offences. … 171. The Bail Act expressly provides for consideration, in bail decisions, of whether there is an unacceptable risk that, whilst released, the accused will commit an offence, that is, a future offence. It is unnecessary to decide here the constitutional validity of that provision. It is enough to point to the great difference between refusal of bail in respect of a pending charge of a past offence and refusal of liberty, potentially for very long intervals of time, in respect of estimations of future offending, based on predictions of propensity and submitted to proof otherwise than by reference to the criminal standard of proof. … 173. The Act under consideration includes amongst its objects ‘care’ and ‘treatment’ of a ‘particular class of prisoner to facilitate their rehabilitation’. However, in the scheme of the Act, this object obviously takes a distant second place (if any place at all) to the true purpose of the legislation, which is to provide for ‘the continued detention in custody [page 25]

… of a particular class of prisoner’. If the real objective of the Act were to facilitate rehabilitation of certain prisoners retained in prison under a ‘continuing detention order’, significant, genuine and detailed provisions would have appeared in the Act for care, treatment and rehabilitation. There are none. Instead, the detainee remains effectively a prisoner. He or she is retained in a penal custodial institution, even as here the very prison in which the sentences of judicial punishment have been served. After the judicial sentence has concluded, the normal incidents of punishment continue. They are precisely the same. 174. These features of the Act demonstrate that the orders for which it provides do not fall within the category of civil commitment for mental illness contemplated in Lim [Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27–8] as an exception to the comprehensive control enjoyed by the judiciary over orders depriving persons of their liberty. Here, the deprivation can only be viewed as punishment. Although the constitutional setting in the United States is different from that operating in Australia, our legal tradition shares a common vigilance to the dangers of civil commitment that deprives persons of their liberty. In my view, the purposes of Ch III and the tests expounded by the majority in Kable require this Court to adopt a similar vigilance to this new mode of effective punishment provided for in the Act. 175. The Act is not proportional (that is, appropriate and adapted) to a legitimate non-punitive objective. It conscripts judges in the imposition of effective judicial punishment in proceedings not otherwise known to the law. The misuse of psychiatry and psychology in recent memory in other countries demands the imposition of rigorous standards before courts may be enlisted to deprive persons of liberty on psychological evidence, absent an established mental illness, abnormality or infirmity. This is why, in other countries, and hitherto in Australia, recognised and well documented mental illnesses, abnormalities or infirmities are the prerequisite for civil commitment on this ground. Psychiatric assessment of risk alone is insufficient. To involve the judiciary in assessments of the latter kind is to attempt to cloak such unreliable and potentially unjust guesswork with the authority of the judicial office. It is repugnant to the judicial process to do so. 176. Highly selective punishment: Whilst it is true that the Act does

not single out, or name, an individual prisoner for continued detention (as was the case in the legislation involving Mr Kable) it is still inconsistent with the traditional judicial process. It is directed to a readily identifiable and small group of individuals who have committed the specified categories of offence and are in Queensland prisons. It adds to the effective punishment of those individuals by exposing them to continued detention beyond the sentence judicially imposed by earlier final orders. It does not contain the procedural safeguards involved in the trial before an Australian court of a criminal offence carrying the risk of punishment by imprisonment. In effect, the appellant and the small class of persons in a like position, are identified by reference both in the short title to the Act and in its provisions. Only the most formalistic approach to the continued detention of the appellant in prison, in the same conditions as those imposed as punishment for criminal convictions, could result in the pretence that his continued detention was not punishment. This Court has repeatedly insisted that, in matters of constitutional evaluation, substance, and not mere form, provides the touchstone. … 178. Upon this basis, the continued imprisonment of the appellant likewise constitutes punishment. There are too many features of the Act to deny that classification to the order made against him. Such order is ‘taken to be a warrant committing the prisoner into custody for the Corrective Services Act’. It designates the continuing detainee ‘a prisoner’. The prisoner is even denied eligibility for the entitlements of other prisoners, [page 26] such as post-prison community based release. This is added punishment and the Act makes little or no effort to pretend to the contrary. 179. In argument, it was suggested that, even if the Act created an effective trial and punishment of persons such as the appellant, it did no offence to the Constitution because the separation of the judicial power in the States is not as rigorous as with respect to federal courts named or contemplated in Ch III courts. I doubt the correctness of this oft-stated proposition expressed so broadly; but it is unnecessary to examine that question here. By involving a

State court in the imposition of punishment, without the safeguards associated with a judicial trial, the Act offends the implications of Ch III in the precise way that Kable described. In this country imprisonment as punishment must follow the standard of traditional judicial process and be for a conventional purpose. The Act does not observe those standards. It pretends to a form of civil commitment; but that pretence does not survive even perfunctory scrutiny. Punishment is punishment and that is what the continued imprisonment ordered in the appellant’s case is in law as well as effect. 180. Double and retrospective punishment: The rule against double punishment for proved crimes may be traced to Biblical times. In English law it is often traced to the Constitutions of Clarendon (1164) by which King Henry II asserted a right to subject clergy to trial in the civil as well as ecclesiastical courts. The resolution of that conflict, following the murder of Archbishop Thomas a Becket, witnessed the beginning of the acceptance by English law that a person should not be put in danger twice for the same crime. This rule is reflected in the common law. It is expressed in the Fifth Amendment to the Constitution of the United States 1787, stating that no person shall be ‘subject for the same offence to be twice put in jeopardy of life or limb’. By the Fourteenth Amendment, that provision has been held applicable to State as well as federal laws in the United States. 181. Although there is no similar express constitutional provision in Australia, our law has repeatedly upheld procedural and substantive rules that provide effective protection against double jeopardy. The principle is also reflected in the International Covenant on Civil and Political Rights (‘ICCPR’). Australia is a party to the ICCPR and also to the First Optional Protocol to the ICCPR …. Because of this, the influence of the ICCPR upon Australian law is large, immediate and bound to increase, particularly in statutory construction. 182. But can it be said that, by enacting the Act, the Queensland Parliament has, within its legislative powers, adopted a law that deliberately involves a form of double punishment which is nevertheless valid and binding? Certainly, by force of the Act, a person such as the appellant is liable, as I would conclude, to further punishment. That punishment is based, in part at least, upon

the criterion of his former conviction(s). Accordingly, the punishment constitutes an increase to the punishment already judicially imposed by reference to the appellant’s earlier conviction(s) and final sentence(s) for the same crime(s). It involves a later judge being required, in effect, to impose new punishment beyond that fixed by an earlier judge, without any intervening offence, trial or conviction. … 184. In my view, it is essential to the nature of the judicial power that, if a prisoner has served in full the sentence imposed by a court as final punishment it is not competent for the legislature to require another court, later, to impose additional punishment by reference to previous, still less the same, offences. Such a requirement could not be imposed upon Ch III courts. Equally, it is repugnant to the exercise by State courts of the federal judicial power that may be vested in those courts for such courts to be obliged to perform such functions. [page 27] 185. Effectively, what is attempted involves the second court in reviewing, and increasing, the punishment previously imposed by the first court for precisely the same past conduct. Alternatively, it involves the second court in superimposing additional punishment on the basis that the original maximum punishment provided by law, as imposed, has later proved inadequate and that a new foundation for additional punishment, in effect retrospective, may be discovered in order to increase it. Retrospective application of new criminal offences and of additional punishment is offensive to the fundamental tenets of our law. It is also contrary to the obligations assumed by Australia under the ICCPR the federal judicial power that may be vested in those courts for such courts to be obliged to perform such functions. It is contrary to truth and transparency in sentencing. It is destructive of the human capacity for redemption. It debases the judiciary that is required to play a part in it. 186. On this footing, the imposition of such functions on a State court is offensive to the basic notions of the judicial power contained in Ch III of the Constitution of the Commonwealth. It follows that the provisions of the Act are invalid. The offending

provisions cannot be severed. They lie at the very heart of the Act. In my opinion, the entire Act fails. [The other members of the court in Fardon, Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ, found that the procedures adopted in the legislation, in particular the fact that the legislation was available to be used against more than one named individual, and that the court had real room for discretion and fact finding, meant that the role the court was being asked to undertake was not inconsistent with its judicial functions and therefore the law did not infringe the Constitution.]

1.45 The other judges of the High Court in Fardon did not agree with Kirby J and the legislation was upheld. Following suit, other states proceeded to enact legislation to impose control orders and ongoing restraints on the liberty of previously convicted persons because of a fear of the offences those persons might commit following release. For example, the Crimes (High Risk Offenders) Act 2006 (NSW) provides for extended supervision orders and continuing detention orders to allow ‘high risk sex offenders’ and ‘high risk violent offenders’ to be subject to control, including ongoing imprisonment, even after their sentences have expired. Here the legislature is moving to restrict a person’s liberty on the basis that he or she may commit future offences (as the person has already been punished for past offences). The Act declares that these are civil proceedings notwithstanding the result can be further incarceration: s 21. 1.46 Commonwealth law also provides for the control of people for fear of the offences that they may commit (see Criminal Code Act 1995 (Cth) and Thomas v Mowbray (2007) 233 CLR 307). Departing from traditional views of criminal law, Commonwealth law also allows for persons to be detained without charge and held in secret, away from their families, friends and legal advisers, to allow the Commonwealth authorities to investigate potential criminal

activity (see Australian Security Intelligence Organisation Act 1979 (Cth) Div 3). 1.47 These examples demonstrate the tendency of governments to place political and populist considerations ahead of concepts such as the right of the citizen not to be detained or punished except after conviction following due process of law. [page 28] A Charter or bill of rights, such as the European Convention on Human Rights, might mean that legislation providing for punishment or detention without normal criminal safeguards would be more readily voided as unconstitutional. Without that kind of protection, the legislature, within the limits prescribed by the High Court in Kable (see 1.27), that is, without inappropriately constraining the decision-making power of the Supreme Court, can provide for ongoing detention without trial of its citizens. It can continue to do this without application of the fundamental tenets of the criminal justice system; for example, proof beyond reasonable doubt that the accused has engaged in prohibited conduct (see also Al-Kateb v Godwin (2004) 219 CLR 562; 208 ALR 124 (detention of a non-citizen)).

BURDEN OF PROOF 1.48 Nicholas Cowdery QC said that one of the safeguards against injustice is the presumption of innocence.15 A person should be found guilty of an offence only if the state can satisfy the jury, or the magistrate or judge if there is no jury, that the accused is guilty ‘beyond reasonable doubt’. Woolmington v DPP [1935] AC 462 House of Lords

Viscount Sankey LC, speaking for the House, at 481–482: Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner … the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

1.49 The ‘golden thread’ of English criminal justice has been confirmed in statute. Evidence Act 1995 (NSW) 141 Criminal proceedings: standard of proof (1) In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.

1.50 Woolmington tells us that the Crown must prove the case beyond reasonable doubt, but what does that term mean? The High Court has insisted that the phrase is one of general application that does not require further explanation. [page 29] Green v R (1971) 126 CLR 28; [1972] ALR 524 High Court of Australia [The appellant was convicted of rape in the ACT Supreme Court. He appealed, inter alia, on the basis that the trial judge had misdirected the jury on the meaning of ‘beyond reasonable doubt’.] The court: [The court reviewed the directions that the trial judge had given to the jury on the question of what is a ‘reasonable doubt’ then continued:] … Sir Owen Dixon in Dawson v R (1961) 106 CLR 1, at p 18 said of a summing up in a criminal trial upon the onus of proof that in his view:

… it is a mistake to depart from the time-honoured formula. It is, I think, used by ordinary people and is understood well enough by the average man in the community. The attempts to substitute other expressions, of which there have been many examples not only here but in England, have never prospered. It is wise as well as proper to avoid such expressions. His Honour referred in this connexion to Thomas v R (1960) 102 CLR 584. In Brown v R (1913) 17 CLR 570, at p 584 Barton ACJ in reference to the traditional formula said: I fully recognize that one embarks on a dangerous sea if he attempts to define with precision a term which is in ordinary and common use with relation to this subject matter, and which is usually stated to a jury … as a well understood expression. McTiernan J, in Thomas v R (1960) 102 CLR, at p 587, observed ‘But there is danger in venturing upon a novel elucidation of this principle of the criminal law’ ie of proof beyond reasonable doubt. Kitto J in the same case said (1960) 102 CLR, at p 595: Whether a doubt is reasonable is for the jury to say; and the danger that invests an attempt to explain what ‘reasonable’ means is that the attempt not only may prove unhelpful but may obscure the vital point that the accused must be given the benefit of any doubt which the jury considers reasonable. Further, Windeyer J pointed out (1960) 102 CLR, at pp 604–605: Attempts by paraphrase and embellishment to explain to juries what is meant by satisfaction beyond reasonable doubt are not always helpful. And explanation is not always necessary. It is said that it (‘the time-honoured expression’) ‘was invented by the common-law judges for the very reason that it was capable of being understood and applied by men in the jury box’. The expression proof

beyond a doubt conveys a meaning without lawyers’ elaborations. Those quotations are but some of many admonitions to judges presiding over criminal trials to adhere to and not to attempt needless explanations of the classical statement of the nature of the onus of proof resting on the Crown. … A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial: to their task of deciding facts they bring to bear their experience and judgment. They are both unaccustomed and not required to submit their processes of mind to objective analysis … ‘It is not their task to analyse their own mental processes’: Windeyer J, Thomas v R (1960) 102 CLR, at p 606. A reasonable doubt which a jury may entertain is not to be confined to a ‘rational doubt’, or a ‘doubt founded on reason’ in the analytical sense or by such detailed processes. …

[page 30] 1.51 The Crown must prove the elements of an offence (see 1.64–1.72). The defendant does not have to offer any rebuttal. Generally, the defendant (accused) does not have to prove anything. At most, all the accused has to do is raise a doubt about the prosecution case. The accused is then entitled to the benefit of that doubt. The accused person may have available one or more of the various ‘defences’ recognised by the criminal law (see Chapters 8 and 9). In some cases, the burden to prove a defence does fall upon the accused. This is the case where the accused relies on the defences of mental illness or substantial impairment due to abnormality of mind, or where a particular statute places the burden of proof on the accused (see, for example, Crimes Act s 527C(2)). In these cases the accused need only prove the defence ‘on the balance of probabilities’. See again Woolmington v DPP (above at 1.48), and the Evidence Act 1995 (NSW) s 141(2), which provides:

141 Criminal proceedings: standard of proof (1) … (2) In a criminal proceeding, the court is to find the case of a defendant proved if it is satisfied that the case has been proved on the balance of probabilities.

DISCRETION 1.52 Discretion, exercised by various functionaries in the criminal process, helps shape the outcomes of the criminal law by deciding who will be charged with criminal offences, and what charges will be laid. In this way the criminal law is not simply an objective set of rules, but is influenced and coloured by many players, bringing to bear a variety of often conflicting perspectives. These players include the public, the police, the lawyers, the judiciary, the jury and, most insidiously, the populist media. 1.53 Discretion in the criminal process is both valuable and dangerous. It is valuable in that it allows the circumstances of an offence to be considered, and in effect sets up a filtering process so that various reviews are made to ensure that a prosecution is warranted both on the law, and in the circumstances. On the other hand, discretion can be dangerous, as the decision maker can make the decision for a variety of reasons that may, or may not, be appropriate. For example, a police officer may decide not to prosecute a person because he or she is satisfied that the person will be dealt with by other means (eg, school or family), or may decide not to prosecute because the suspect is a friend or pays a bribe. Generally speaking, discretions exercised by the police or prosecutor cannot be subject to review by an outside authority. The courts have an exceptional power to refuse to hear a prosecution if to hear it would breach the rule against double jeopardy (R v Carroll (2002) 213 CLR 635;

194 ALR 1); or amount to an abuse of process of the court’s jurisdiction, for example, because the prosecution is bound to fail (Ridgeway v R (1995) 184 CLR 19; 129 ALR 41); or it is oppressive (Walton v Gardiner (1993) 177 CLR 378; 112 ALR 289); or the trial has been rendered unfair by delay or other prosecution conduct (Jago v District Court of New South Wales (1989) 168 CLR 23; 87 ALR 577). [page 31] Likiardopoulos v R (2012) 247 CLR 265; 291 ALR 1; [2012] HCA 37 High Court of Australia [The appellant was convicted after trial of murder. It was the Crown allegation that he and five other persons had been involved in the killing of a young intellectually handicapped man in effect kept prisoner at the appellant’s home. Five others had pleaded guilty to manslaughter or accessory after the fact to manslaughter and the Crown accepted those pleas. Only the appellant was committed for trial on murder. The appellant, amongst other grounds, asserted that it was unfair and an abuse of process that he had been prosecuted for murder when the Crown accepted, by their pleas, that the co-offenders were guilty of manslaughter only and yet the Crown was asserting that he was in a joint criminal enterprise with the others or an accessory to their act of murder.] Gummow, Hayne, Crennan, Kiefel and Bell JJ: [footnotes omitted] [37] The appellant maintained that it was unfair that the Crown should be permitted to advance a case at his trial that the principal offenders were persons from whom it had chosen to accept pleas of guilty to lesser offences. The Director’s acceptance of the proffered pleas of guilty involved an exercise of prosecutorial discretion. As Gaudron and Gummow JJ explained in Maxwell v The Queen, the independence and impartiality of the judicial process would be compromised if courts were perceived to be in any way concerned with who is to be prosecuted and for what. For this reason, their Honours considered that certain decisions involved in the prosecution process are insusceptible of judicial review. Further, sanctions available to enforce well established standards of prosecutorial fairness are to be found mainly in the powers of a

trial judge and are not directly enforceable at the suit of the accused or anyone else by prerogative writ, judicial order or an action for damages. It is well settled that the circumstances which may amount to an abuse of process are not to be narrowly confined and it is possible to envisage cases in which an exercise of prosecutorial discretion may amount to an abuse of the process of the court. However, there is nothing in the conduct of the proceedings arising out of the death of the deceased that has produced unfairness of the kind that would lead a court to intervene to prevent the abuse of its process. [38] Prominent among the factors bearing on the exercise of the prosecutorial discretion is likely to be consideration of the evidence available to establish guilt of the more serious offence. The appellant’s submission that there was “on the record” an acceptance by the court at the instance of the Crown “that these people are not murderers” is apt to mislead in this context. Commonly, the factors informing the Director’s election to accept pleas to lesser offences will not be known. In this case, the respondent outlined a number of them in written submissions. In summary, the considerations were these. At the time the appellant and the others were charged with the murder of the deceased, the case against each was weak. Aydin had made admissions in his interview with the police but these would not have supported his conviction for murder. The Crown did not have evidence to support the conviction of John Likiardopoulos, Singh or Con Likiardopoulos of murder. The sentencing of Aydin and Singh for manslaughter and as an accessory after the fact to manslaughter respectively enabled the Crown to lead evidence from each at the appellant’s trial. This included direct evidence of the appellant’s participation in the assaults on the deceased. The evidence from Aydin and Singh was also evidence which, with other evidence, supported, as a step in proof of the appellant’s accessorial guilt, the finding that one or more of those whom he had directed or encouraged had assaulted the deceased with the intention which made the act murder. [page 32] [39] The moral culpability of the accessory will sometimes be greater than that of the principal offender. It was open to consider that to be the case here. The appellant was a man of mature years.

His dominance over the other persons in the household does not appear to have been in issue. The evidence of his encouragement of the principal offenders included that he had urged Singh to redouble his assaults on the deceased, saying, “Do you remember how it felt when it was happening to you? Is that all you’ve got?” And that he had ordered Singh to take a break before telling him to “get back into it”. And that he had encouraged John Likiardopoulos and Aydin to “get into” the deceased and to continue beating him after he had been cleaned up and brought back into the kitchen/dining area. There was no unfairness and the administration of justice was not brought into disrepute, by reason of the acceptance of pleas of guilty to lesser offences from the persons whom the Crown alleged had acted at the appellant’s urging, in prosecuting the appellant as an accessory to the murder of the deceased. French CJ: … [2] The general unavailability of judicial review in respect of the exercise of prosecutorial discretions rests upon a number of important considerations. One of those considerations, adverted to in the joint judgment, is the importance of maintaining the reality and perception of the impartiality of the judicial process. A related consideration is the importance of maintaining the separation of the executive power in relation to prosecutorial decisions and the judicial power to hear and determine criminal proceedings. A further consideration is the width of prosecutorial discretions generally and, related to that width, the variety of factors which may legitimately inform the exercise of those discretions. Those factors include policy and public interest considerations which are not susceptible to judicial review, as it is neither within the constitutional function nor the practical competence of the courts to assess their merits. Moreover, as their Honours point out, trial judges have available to them sanctions to enforce well-established standards of prosecutorial fairness and to prevent abuses of process. [3] The above considerations, reflected in a number of decisions of this Court referred to in the joint judgment of Gaudron and Gummow JJ in Maxwell, support the proposition that in a practical sense prosecutorial decisions are for the most part insusceptible of judicial review. But as Gaudron and Gummow JJ also pointed out,

the approach of earlier authorities which treated such decisions as unreviewable because they were seen as part of the prerogative of the Crown “may not pay sufficient regard to the statutory office of Director of Public Prosecutions which now exists in all States and Territories and in the Commonwealth”. Further as their Honours observed “it may pay insufficient regard to the fact that some discretions are conferred by statute”. [4] The statutory character of prosecutorial decision-making in Australia today does not lessen the significance of the impediments to judicial review of such decisions, which are created by the constitutional and practical considerations referred to above. However the existence of the jurisdiction conferred upon this Court by s 75(v) of the Constitution in relation to jurisdictional error by Commonwealth officers and the constitutionally-protected supervisory role of the Supreme Courts of the States raise the question whether there is any statutory power or discretion of which it can be said that, as a matter of principle, it is insusceptible of judicial review. That question was not argued in this case and does not need to be answered in order to decide this case. It involves a question arising under the Constitution. I would not wish my agreement with the reasons given in the joint judgment to be taken as acceptance of a proposition that the exercise of a statutory power or discretion by a prosecutor is immune from judicial review for jurisdictional error, however limited the scope of such review may be in practice.

[page 33] 1.54 Flow Chart 1-1 shows some of the contexts in which discretions are applied in the criminal process.

FLOW CHART 1-1: DISCRETION

[Note: The decisions set out in bold type in the flow chart are decisions made by judicial officers (magistrates or judges) in open court where the parties are entitled to address the court and the officers are required to give reasons for their decisions.]

[page 34] If the matter is indictable:

[page 35] 1.55 As can be seen, discretions occur at all levels of the process: A person may witness a crime and choose not to report it or give evidence about it. A police officer decides who to charge, and with what offence.

If it is a serious offence, the prosecuting authority, the Director of Public Prosecutions (DPP), may decide to charge the person with some other offence, or to drop the prosecution altogether — a ‘no bill’. When considering whether to find a ‘no bill’ the DPP may have regard to issues such as the public interest and representations made by the accused’s legal advisers (see the Prosecution Guidelines No 4 at 1.60). A magistrate may decide that there is insufficient evidence to go before a jury, and discharge the defendant. The DPP may decide to prosecute a person even though a magistrate has dismissed the charge. A jury may decide to acquit a clearly guilty person. A judge or magistrate decides what punishment to apply. The Court of Criminal Appeal, in quashing a conviction, may acquit the appellant or order a new trial. 1.56 Note from Flow Chart 1-1 how often the question arises of the appropriate offence for which the accused should be prosecuted. In a summary matter (ie, one heard by a magistrate in a Local Court: see 12.6) this is a matter for the police. In an indictable matter (ie, one heard by a jury in the District or Supreme Court: see 12.21) the police decide the initial charge, the DPP may substitute a different charge for the committal hearing, the magistrate may commit the defendant for trial on some other charge, and the DPP may subsequently decide that a different charge should be brought at the trial. The offence for which the accused stands trial will depend not only on what he or she allegedly did, but also on the assessments of a variety of officials involved in the criminal process. The exercise of discretion means that

some people accused of committing crimes never appear in the courts to be tried. 1.57 Only those decisions set out in bold type in Flow Chart 1-1 are the decisions made by judicial officers (magistrates or judges) in open court (ie, open to the public) where judicial officers are required to give reasons for their decisions. Both the Crown and the accused are entitled to legal representation to make submissions as to the decision the judicial officer should make. 1.58 What follows from the discussion so far is that the criminal law aims to protect individuals and society from harm by prohibiting certain conduct, but it also serves to protect individuals from arbitrary action by the state and its agencies. The agencies that operate in the area of the criminal law are governed by law, as is the process by which ‘guilt’ is determined. There are, however, many factors, such as the role of discretion and the burden of proof, that affect the [page 36] criminal process from the initial decision to arrest and subsequently charge a person, through to the final decision whether or not to convict that person of an offence.

ROLE OF LAWYERS 1.59 Because the criminal law involves a ‘contest’ between the state and the defendant, it is imperative that both sides are represented by competent and ethical lawyers. The primary duty of lawyers for both the Crown (prosecution) and the accused (defence) is to the court and the process, and not to their respective clients. Thus, both sides have essentially similar obligations, although they come to their tasks from differing perspectives.

1.60 A prosecutor represents the state, not the victim (if there is one). His or her duty is not to secure a conviction at all costs, but to ensure that all the evidence is fairly and accurately put before the court. The NSW Director of Public Prosecutions publishes guidelines for prosecutors emphasising their duty to the community. Office of the Director of Public Prosecutions Prosecution Guidelines16 2 Role and Duties of the Prosecutor [Furnished on 20 October 2003] A prosecutor is a “minister of justice”. The prosecutor’s principal role is to assist the court to arrive at the truth and to do justice between the community and the accused according to law and the dictates of fairness. A prosecutor is not entitled to act as if representing private interests in litigation. A prosecutor represents the community and not any individual or sectional interest. A prosecutor acts independently, yet in the general public interest. The ‘public interest’ is to be understood in that context as an historical continuum: acknowledging debts to previous generations and obligations to future generations. In carrying out that function: It behoves him — Neither to indict, nor on trial to speak for conviction except upon credible evidence of guilt; nor to do even a little wrong for the sake of expediency, or to pique any person or please any power; not to be either gullible or suspicious, intolerant or over-pliant: in the firm and abiding mind to do right to all manner of people, to seek justice with care, understanding and good countenance. (per RR Kidston QC, former Senior Crown Prosecutor of New South Wales, in “The Office of Crown Prosecutor (More Particularly in New South Wales)” (1958) 32 ALJ 148). It is a specialised and demanding role, the features of which

need to be clearly recognised and understood. It is a role that is not easily assimilated by all legal practitioners schooled in an adversarial environment. It is essential that it be carried out with the confidence of the community in whose name it is performed. It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence [page 37] relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. (per Rand J in the Supreme Court of Canada in Boucher v The Queen (1954) 110 CCC 263 at p 270). In this State that role must be discharged in the environment of an adversarial approach to litigation. The observance of those canons of conduct is not incompatible with the adoption of an advocate’s role. The advocacy must be conducted, however, temperately and with restraint. The prosecutor represents the community generally at the trial of an accused person. Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one.

(per Deane J in Whitehorn v The Queen (1983) 152 CLR 657 at pp 663–664). Nevertheless, there will be occasions when the prosecutor will be entitled firmly and vigorously to urge the prosecution’s view about a particular issue and to test, and if necessary to attack, that advanced on behalf of an accused person or evidence adduced by the defence. Adversarial tactics may need to be employed in one trial that may be out of place in another. A criminal trial is an accusatorial, adversarial procedure and the prosecutor will seek by all proper means provided by that process to secure the conviction of the perpetrator of the crime charged. 3 Fairness [Furnished on 20 October 2003; amended 1 June 2007] Having regard to the role and duties of the prosecutor as described in Guideline 2, a prosecutor must act impartially and fairly according to law. This will involve the prosecutor informing the defence and the court of directions, warnings or authorities which may be appropriate in the circumstances of the case, even where unfavourable to the prosecution. It will also involve identifying portions of evidence which may be objectionable and declining to open on such evidence. As a general rule the prosecution must offer all its proofs during the presentation of its case (and, for example, should not first adduce evidence of an admission which is relevant to a fact in issue during cross-examination of an accused person). Cross-examination of an accused person as to credit or motive must be fairly conducted. Material put to an accused person must be considered on reasonable grounds to be accurate and its use justified in the circumstances of the trial. (See also Barristers’ and Solicitors’ Rules 63 and 64 — Appendix B.) The prosecutor owes a duty of fairness to the community. The community’s interest is twofold: that those who are guilty be brought to justice and that those who are innocent not be wrongly convicted. Procedural Fairness to the Prosecution The prosecution’s right to be treated fairly must not be overlooked. In Moss v Brown (1979) 1 NSWLR 114 at 126 the Court of

Appeal said: In any discussion of fairness, it is imperative to consider the position of all parties. It is sometimes forgotten that the Crown has rights and, as it has a heavy responsibility in [page 38] respect of the invoking and enforcement of the criminal law, which includes seeing that the public revenue is not imposed upon, it is entitled to maintain those rights, even if they may bear heavily upon some accused. As Lord Goddard CJ said in R v Grondkowski (1946) KB 369 at 372: ‘The judge must consider the interests of justice as well as the interests of the prisoners’. Ensuring the prosecution’s right to fairness may require a prosecutor to seek an adjournment of a matter due to insufficient notice of listing being given to the prosecution or to allow an appeal pursuant to section 5F of the Criminal Appeal Act 1912 to be considered. 4 The Decision to Prosecute [Furnished 20 October 2003; amended 1 June 2007] The prosecution process is usually enlivened by a suspicion, an allegation or a confession. Not every one, however, will result in a prosecution. It has never been the rule in this country … that suspected criminal offences must automatically be the subject of prosecution. Indeed the very first Regulations under which the Director of Public Prosecutions worked provided that he should … prosecute ‘wherever it appears that the offence or the circumstances of its commission is or are of such a nature that a prosecution in respect thereof is required in the public interest’. That is still the dominant consideration. (per Sir Hartley Shawcross QC, UK Attorney General and former Nuremberg trial prosecutor, speaking in the House of Commons on 29 January 1951).

That statement applies equally to the position in New South Wales. The general public interest is the paramount criterion. The question whether or not the public interest requires that a matter be prosecuted is resolved by determining: (1) whether or not the admissible evidence available is capable of establishing each element of the offence; (2) whether or not it can be said that there is no reasonable prospect of conviction by a reasonable jury (or other tribunal of fact) properly instructed as to the law; and if not (3) whether or not discretionary factors nevertheless dictate that the matter should not proceed in the public interest. The first matter requires no elaboration: it is the prima facie case test. The second matter requires an exercise of judgment which will depend in part upon an evaluation of the weight of the available evidence and the persuasive strength of the prosecution case in light of the anticipated course of proceedings, including the circumstances in which they will take place. It is a test appropriate for both indictable and summary charges. The third matter requires consideration of many factors which may include the following: 3.1

the seriousness or, conversely, the triviality of the alleged offence or that it is of a “technical” nature only;

3.2

the obsolescence or obscurity of the law;

3.3

whether or not the prosecution would be perceived as counter-productive; for example, by bringing the law into disrepute;

3.4

special circumstances that would prevent a fair trial from being conducted;

3.5

whether or not the alleged offence is of considerable general public concern;

3.6

the necessity to maintain public confidence in such basic institutions as the Parliament and the courts; [page 39]

3.7

the staleness of the alleged offence;

3.8

the prevalence of the alleged offence and any need for deterrence, both personal and general;

3.9

the availability and efficacy of any alternatives to prosecution;

3.10

whether or not the alleged offence is triable only on indictment;

3.11

the likely length and expense of a trial;

3.12

whether or not any resulting conviction would necessarily be regarded as unsafe and unsatisfactory;

3.13

the likely outcome in the event of a finding of guilt, having regard to the sentencing options available to the court;

3.14

whether or not the proceedings or the consequences of any resulting conviction would be unduly harsh or oppressive;

3.15

the degree of culpability of the alleged offender in connection with the offence;

3.16

any mitigating or aggravating circumstances;

3.17

the youth, age, maturity, intelligence, physical health, mental health or special disability or infirmity of the alleged offender, a witness or a victim;

3.18

the alleged offender’s antecedents and background, including culture and language ability;

3.19

whether or not the alleged offender is willing to co-operate in the investigation or prosecution of others, or the extent to which the alleged offender has done so;

3.20

the attitude of a victim or in some cases a material witness to a prosecution;

3.21

whether or not and in what circumstances it is likely that a confiscation order will be made against the offender’s property;

3.22

any entitlement or liability of a victim or other person or body to criminal compensation, reparation or forfeiture if prosecution action is taken; and/or

3.23

whether or not the Attorney General’s or Director’s consent is required to prosecute.

The applicability of and weight to be given to these and other factors will vary widely and depend on the particular circumstances of each case. A decision whether or not to proceed must not be influenced by: (i)

the race, religion, sex, national origin, social affiliation or political associations, activities or beliefs of the alleged offender or any other person involved (unless they have special significance to the commission of the particular offence or should otherwise be taken into account objectively);

(ii)

personal feelings of the prosecutor concerning the offence, the alleged offender or a victim;

(iii)

possible political advantage or disadvantage to the government or any political party, group or individual. …

1.61 A prosecutor is also a member of the legal profession and is bound by the rules made under the Legal Profession Act 1987 (NSW) that govern a lawyer’s conduct. Both the NSW Law Society (for solicitors) and the NSW Bar Association (for barristers) have published rules imposing obligations on prosecutors and defence lawyers. The solicitors’ rules are set out by way of illustration. [page 40] NSW Law Society Solicitors’ Rules 2013 29 Prosecutor’s duties 29.1

A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.

29.2

A prosecutor must not press the prosecution’s case for a conviction beyond a full and firm presentation of that

case. 29.3

A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused.

29.4

A prosecutor must not argue any proposition of fact or law which the prosecutor does not believe on reasonable grounds to be capable of contributing to a finding of guilt and also to carry weight.

29.5

A prosecutor must disclose to the opponent as soon as practicable all material (including the names of and means of finding prospective witnesses in connection with such material) available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused, unless the prosecutor believes on reasonable grounds that such disclosure, or full disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person.

29.6

A prosecutor who has decided not to disclose material to the opponent under Rule 29.5 must consider whether:

29.6.1

the charge against the accused to which such material is relevant should be withdrawn; or

29.6.2

the accused should be faced only with a lesser charge to which such material would not be so relevant.

29.7

A prosecutor must call as part of the prosecution’s case all witnesses:

29.7.1

whose testimony is admissible and necessary for the presentation of all the relevant circumstance [sic];

29.7.2

whose testimony provides reasonable grounds for the prosecutor to believe that it could provide admissible evidence relevant to any matter in issue;

UNLESS: (i)

the opponent consents to the prosecutor not calling a particular witness;

(ii) the only matter with respect to which the particular witness can give admissible evidence has been dealt with by an

admission on behalf of the accused; or (iii) the only matter with which the particular witness can give admissible evidence goes to establishing a particular point already adequately established by another witness or other witnesses; or (iv) the prosecutor believes on reasonable grounds that the testimony of a particular witness is plainly untruthful or is plainly unreliable, provided that the prosecutor must inform the opponent as soon as practicable of the identity of any witness whom the prosecutor intends not to call on any ground within (ii), (iii) or (iv) together with the grounds on which the prosecutor has reached that decision. [page 41] 29.8

A prosecutor who has reasonable grounds to believe that certain material available to the prosecution may have been unlawfully or improperly obtained must promptly:

29.8.1

inform the opponent if the prosecutor intends to use the material; and

29.8.2

make available to the opponent a copy of the material if it is in documentary form.

29.9

A prosecutor must not confer with or interview any accused except in the presence of the accused’s legal representative.

29.10

A prosecutor must not inform the court or an opponent that the prosecution has evidence supporting an aspect of its case unless the prosecutor believes on reasonable grounds that such evidence will be available from material already available to the prosecutor.

29.11

A prosecutor who has informed the court of matters within Rule 29.10, and who has later learnt that such evidence will not be available, must immediately inform the opponent of that fact and must inform the court of it when next the case is before the court.

29.12

A prosecutor:

29.12.1 must correct any error made by the opponent in address on sentence; 29.12.2 must inform the court of any relevant authority or legislation bearing on the appropriate sentence; 29.12.3 must assist the court to avoid appealable error on the issue of sentence; 29.12.4 may submit that a custodial or non-custodial sentence is appropriate; and 29.12.5 may inform the court of an appropriate range of severity of penalty, including a period of imprisonment, by reference to relevant decisions. 29.13

A solicitor who appears as counsel assisting an inquisitorial body such as the Criminal Justice Commission, the Australian Crime Commission, the Australian Securities and Investments Commission, the ACCC, a Royal Commission or other statutory tribunal or body having investigative powers must act in accordance with Rules 29.1, 29.3 and 29.4 as if the body is a court referred to in those Rules and any person whose conduct is in question before the body is an accused referred to in Rule 29.

1.62 Defence lawyers act for their clients, who are entitled to be acquitted if the Crown case is not established beyond a reasonable doubt. In Tuckiar v R (1934) 52 CLR 335, counsel for the accused indicated to the trial judge that ‘[h]e was in a predicament, the worst predicament that he had encountered in all his legal career’. His predicament arose because the accused had admitted his guilt during a confidential conference. On appeal to the High Court, the majority (Gavan Duffy CJ, Dixon, Evatt and McTiernan JJ) said at 346: Why he [counsel] should have conceived himself to have been in so great a predicament, it is not easy for those experienced in advocacy to understand. He had a plain duty, both to his client and to the Court, to press such rational considerations as the evidence fairly gave rise to in favour of complete acquittal or conviction of manslaughter only. No

doubt he was satisfied that through Paddy he obtained the uncoloured product of his client’s mind, although misgiving on this point would have been pardonable; but, even if the result was that the correctness of Parriner’s version was conceded, it was by no means a hopeless contention of fact that the homicide

[page 42] should be found to amount only to manslaughter. Whether he be in fact guilty or not, a prisoner is, in point of law, entitled to acquittal from any charge which the evidence fails to establish that he committed, and it is not incumbent on his counsel by abandoning his defence to deprive him of the benefit of such rational arguments as fairly arise on the proofs submitted.

1.63 A defence lawyer may take any legitimate step to question the Crown case but must not mislead the court. NSW Law Society Solicitors’ Rules 20 Delinquent or guilty clients 20.1

A solicitor who, as a result of information provided by the client or a witness called on behalf of the client, learns during a hearing or after judgment or the decision is reserved and while it remains pending, that the client or a witness called on behalf of the client:

20.1.1

has lied in a material particular to the court or has procured another person to lie to the court;

20.1.2

has falsified or procured another person to falsify in any way a document which has been tendered; or

20.1.3

has suppressed or procured another person to suppress material evidence upon a topic where there was a positive duty to make disclosure to the court;

must – 20.1.4

advise the client that the court should be informed of the lie, falsification or suppression and request authority so to inform the court; and

20.1.5

refuse to take any further part in the case unless the client authorises the solicitor to inform the court of the lie, falsification or suppression and must promptly inform the court of the lie, falsification or suppression upon the client authorising the solicitor to do so but otherwise may not inform the court of the lie, falsification or suppression.

20.2

A solicitor whose client in criminal proceedings confesses guilt to the solicitor but maintains a plea of not guilty:

20.2.1

may cease to act, if there is enough time for another solicitor to take over the case properly before the hearing, and the client does not insist on the solicitor continuing to appear for the client;

20.2.2

in cases where the solicitor continues to act for the client: (i)

must not falsely suggest that some other person committed the offence charged;

(ii) must not set up an affirmative case inconsistent with the confession; (iii) may argue that the evidence as a whole does not prove that the client is guilty of the offence charged; (iv) may argue that for some reason of law the client is not guilty of the offence charged; and (v) may argue that for any other reason not prohibited by (i) and (ii) the client should not be convicted of the offence charged; 20.2.3

must not continue to act if the client insists on giving evidence denying guilt or requires the making of a statement asserting the client’s innocence. [page 43]

20.3

A solicitor whose client informs the solicitor that the client intends to disobey a court’s order must:

20.3.1

advise the client against that course and warn the client of its dangers;

20.3.2

not advise the client how to carry out or conceal that course; and

20.3.3

not inform the court or the opponent of the client’s intention unless: (i)

the client has authorised the solicitor to do so beforehand; or

(ii) the solicitor believes on reasonable grounds that the client’s conduct constitutes a threat to any person’s safety.

ELEMENTS OF A CRIME Introduction 1.64 The concept of the ‘elements of a crime’ is fundamental to the study of criminal law. Every crime is made up of ‘elements’, sometimes referred to as ‘ingredients’: these are essential facts. The Crown must prove all of the elements beyond reasonable doubt. If it does not, the accused cannot be convicted. 1.65 The elements of the crime can usually be divided into the physical elements and the mental elements. The physical elements are those actions or omissions that are prohibited (in the case of murder, for example, any act or culpable omission of the accused that caused the death of the deceased). The mental element is the state of mind that must have existed at the time of the physical element (in the case of murder, for example, an intention to kill or inflict grievous bodily harm or recklessness as to death). 1.66 In 1990 the Standing Committee of Australian Attorneys-General established a committee to review the criminal law in each Australian jurisdiction with a view to developing a Model Criminal Code that could be adopted across the country. The Criminal Law Officers Committee began work on a Model Criminal Code and that work

continues through the Model Criminal Code Officers Committee (MCCOC). Some of the Model Criminal Code has been enacted into Commonwealth law (see Criminal Code Act 1995 (Cth) (the Criminal Code)) and some of MCCOC’s recommendations have been incorporated into New South Wales law. In this book we shall make reference both to the various discussion papers and reports that have been produced by MCCOC and also to the Criminal Code. The discussion papers and reports are valuable in that they identify issues in the law and summarise the law in relevant areas. The Criminal Code is an important part of the criminal law operating in New South Wales. 1.67 MCCOC, in its Model Criminal Code Report, Chapters 1 and 2: General Principles of Criminal Responsibility,17 accepted that it was usual to analyse criminal offences [page 44] into the actus reus and the mens rea, but preferred to adopt the terms ‘physical elements’ and ‘fault elements’. The report states at p 7: ‘Physical elements’ refer to external events. ‘Fault elements’ refer to the state of mind or fault of the accused. MCCOC’s analysis has been adopted in Ch 2 of the Criminal Code, ‘General Principles of Criminal Responsibility’. 1.68 While this book adopts the same terminology as MCCOC, many of the judgments extracted here use the terms actus reus and mens rea. For practical purposes, the term ‘physical element’ is synonymous with ‘actus reus’ and ‘fault element’ is synonymous with ‘mens rea’.

Physical elements 1.69 The physical elements of crimes can generally be divided into three categories: 1.

The first is where some action is prohibited, such as

driving in excess of the speed limit. 2.

The second is where there is some prohibited effect, for example, ‘causing death’. Here it is not what was done that is in issue, but what consequence was caused.

3.

The third category is where the circumstances of an action are part of the required physical element of the crime. For example, to have consensual sexual intercourse is not a crime, but it is if one of the parties is under the age of 16 years. In that case, the external circumstances change an otherwise lawful act into an unlawful one.

Fault elements 1.70 The ‘fault element’ refers to the state of mind of the accused that must co-exist with the physical elements of the crime in order for the crime to be complete. Without the necessary fault element or elements, a person is not guilty of the crime, no matter how reprehensible or stupid he or she may have been. The fault required to establish a crime may be subjective (ie, what did the accused know or think?) or objective (what would a reasonable person in the position of the accused have realised?). 1.71 Depending on the offence, the fault element may be established by proving one or other of the following: 1.

Intention: where the accused foresaw the consequences of his or her actions or culpable omissions and actively desired that the consequences should occur.

2.

Recklessness: where the accused foresaw the consequences of his or her actions or culpable omissions, but proceeded in the face of that foresight. Generally the foresight required for ‘recklessness’ to

apply is a foresight of the possibility of the consequences of the conduct or omission. For example, in the offence of sexual assault, recklessness as to the complainant’s lack of consent to intercourse is a foresight of the possibility that the complainant was not consenting and nevertheless proceeding to have intercourse [page 45] (see 6.14–6.42). However, in the offence of murder, reckless indifference to human life is made out by a foresight of the probability of death resulting from the act or omission. This is due to the wording of s 18 of the Crimes Act (see 2.19 and following). A person can be charged with a reckless offence even if that person intended the result; that is, it is not possible for him or her to argue that he or she was not reckless because he or she intended what happened (see Crimes Act s 4A, and Criminal Code (Cth) s 5.4). 3.

Knowledge: where the accused was aware of the existence of the physical element required for the offence, for example, that he or she had some thing in his or her possession, such as a prohibited substance, that it was unlawful to have.

4.

Negligence: although the accused did not foresee that the consequence of his or her actions would occur, a reasonable person in the accused’s position would have had that foresight.

‘Wilful blindness’ has been suggested as a further category of ‘fault’; that is, where the accused deliberately refrains from making inquiries in order to avoid finding out some essential facts (R v Dykyj (1993) 29 NSWLR 672). It is clear, however, that wilful blindness is not a separate category of fault element, but is evidence that the jury may use to decide if the

accused had the necessary knowledge, intention or foresight, or was reckless, depending on the fault element required for the crime in question (R v Crabbe (1985) 156 CLR 464; R v Dykyj (1993) 29 NSWLR 672). 1.72 Not all offences require proof of the same fault elements. Some offences require proof of intention or recklessness, others knowledge, and others negligence. Some offences can be proved by a combination of these fault elements. One role of the criminal lawyer is to analyse the particular offence to determine the particular fault elements for that offence. The Criminal Code has default fault elements that apply where no fault element is specifically mentioned in the section creating the offence, see s 5.6 of the Code.

Motive 1.73 Intention and motive are not the same thing. In criminal law it is said that motive is irrelevant. Motive is ‘a circumstance or thing which induces a person to act. … [T]he motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility’ (RN Howie (ed), Butterworths Australian Criminal Law Dictionary, Butterworths, Sydney, 1997, p 1310). De Gruchy v R (2002) 211 CLR 85; 190 ALR 441; [2002] HCA 33 High Court of Australia [De Gruchy was charged with the murder of a number of his family members. As part of his defence, he raised his good character, his good relationships with his family and the failure of the Crown to show any motive as to why he would kill his family. He was [page 46] convicted by a jury and appealed to the NSW Court of Criminal

Appeal. His appeal was rejected and he appealed to the High Court of Australia.] Gaudron, McHugh and Hayne JJ: [footnotes omitted] 28. Motive, if proven, is a matter from which a jury might properly infer intention, if that is in issue, and, in every case is relevant to the question whether the accused committed the offence charged. … 29. Although absence of motive is relevant, the appellant’s argument overlooks a critical distinction between absence of proven or apparent motive, on the one hand, and proven absence of motive, on the other. In the present case, there was no evidence of motive, which is not the same thing as proven absence of motive. And although the character evidence called on behalf of the appellant tended to negate possible motive, it by no means established the absence of motive. 30. The absence of evidence of possible motive is clearly a matter to be taken into account by a jury, particularly in a case based on circumstantial evidence. However, if, as in the present case, the prosecution does not have to establish motive, it is difficult to say that the absence of evidence in that regard is a matter of ‘positive significance’, either in the sense that it is a weakness in the prosecution case or a strength in the defence case. It might be otherwise if there were positive evidence that the accused lacked motive. However, that would be a most unusual case. The present is not a case of that kind. It is simply a case where there was no evidence of motive. Kirby J: 40. Jeremy Bentham, in his essays on evidence, remarked on the problematic relevance of a possible motive, in a circumstantial case, to proving that a person was guilty of an alleged offence. He said: ‘[E]very child may be a gainer by the death of his father; yet, when a father dies, nobody thinks of attributing his death to his children.’ 41. This appeal involves a case where the accused was tried by jury and found guilty of killing a parent, as well as two siblings. The evidence at the trial revealed no motive for the crimes. On the contrary, some evidence was tendered to suggest an absence of motive. The first question for this Court is whether the instructions

of the trial judge on the subject of motive involved a material misdirection of the jury, thereby requiring a retrial. The second question is whether, by taking into account the want of a proved motive when considered with all the evidence, the guilty verdicts are unreasonable, obliging the substitution of verdicts of acquittal. 42. The background facts are stated in the joint reasons of Gaudron, McHugh and Hayne JJ and in the reasons of Callinan J. The course of the trial, the addresses of counsel and the trial judge’s instructions to the jury are also set out in those reasons. 43. I agree that the appeal must be dismissed. I agree generally with the joint reasons. I agree specifically with Callinan J that the treatment by the trial judge of the issue of ‘disturbed mind’ was neither unreasonable nor unfair, having regard to the way that counsel had addressed the jury. His Honour firmly told the jury that there was no evidence of a mental infirmity of mind on the part of the appellant. I do not consider that there was any misdirection on that score. However, I wish to add some comments of my own concerning judicial directions on the issue of motive and on the proper approach, in the circumstances, to the submission that the verdicts are unreasonable. … 44. The only law that it is necessary for the jury to know is so much ‘as must guide them to a decision on the real issue or issues in the case’. The trial judge is obliged to decide what the real issues are and to tell the jury, in the light of that decision, what the relevant law is. The judge should explain the law ‘not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case’. [page 47] 45. Because obligatory instructions, out of context, can sometimes lead to artificiality in the communication between a judge and the jury (and to directions that are of little relevance to the issues of the case), there is a contemporary tendency to reduce the number and detail of such obligatory directions. Of course, there remain some subjects upon which judicial instruction is compulsory. In criminal trials, I favour the trend to more economy in judicial directions on the law. 46. Circumstantial cases and inferences: It is of the nature of many

crimes that their perpetrators perform the deeds in secret. They do so in the hope of avoiding observation, detection and consequent prosecution and conviction. In such cases, a prosecutor must necessarily rely upon circumstantial evidence to prove the case against the accused. Circumstantial evidence ‘can, and often does, clearly prove the commission of a criminal offence’. 47. In Australia, but not in England and some other countries, a rather strict approach is taken to the instruction that must be given about circumstantial evidence. The jury must be warned that the primary facts, from which an inference of guilt is to be drawn, must themselves be proved beyond reasonable doubt. The inference of guilt must be the only inference that is reasonably open on all the primary facts which the jury find to be established to the requisite standard of proof. 48. There is nothing in the law that renders proof by circumstantial evidence unacceptable or suspect of itself — ‘[i]t is no derogation of evidence to say that it is circumstantial.’ Sometimes circumstantial evidence constituting a ‘chain of other facts sworn to by many witnesses of undoubted credibility’ can actually be stronger than disputable positive eye-witness evidence. However, circumstantial evidence necessarily calls upon processes of reasoning that involve the drawing of inferences from a jigsaw of established facts. Amongst the pieces of the jigsaw (and any gaps in the picture that it presents) may be evidence or lack of evidence concerning motive. It is when there is such evidence (and sometimes where there is no such evidence) that a judge, conformably with the primary rule, may be expected to assist the jury on the use that may be made of any conclusions that the jury may reach concerning the presence or absence of motive. 49. The mind–body dualism: Discourse about the significance of evidence (or lack of evidence) concerning an accused’s motive for committing an alleged crime must be viewed against the background of a large philosophical debate, that needs only to be mentioned, and the specific concern of the criminal law about proof of an accused’s guilty intent. 50. According to Waller and Williams, ‘[a]lmost all expositions of criminal law theory accept, without discussion, the Cartesian

theory of mind and body … That is to say, they treat mental operations as being related to physical activity as cause is related to effect.’ Many philosophers and some legal scholars have rejected this dualism as ‘implausibly mechanistic’. This is not the occasion to explore the assumptions that are commonly made (and that form the basis of judicial opinions and instructions to juries) concerning the way intentions may sometimes grow out of the emotions involved in motivation and lead on to criminal acts and omissions. Theorists may criticise the assumptions inherent in all such reasoning as ‘robotic’. However, our legal system continues to observe an ‘ongoing commitment to a fairly unreflective mind– body dualism’. 51. Distinguishing between the usually essential ingredient of a criminal intention and a person’s desire, purpose or motive will sometimes be important. But, as such, motive is rarely, if ever, an element of a criminal offence. Motive must not, therefore, be confused with intention. Motive may be ‘the reason that nudges the will and prods the mind to indulge the criminal intent’. It may be the feeling that prompts the operation of the will, [page 48] the ulterior object of the person willing. It generally has two evidential aspects. These will be the emotion that is supposed to have led to the act and the external fact that is the possible exciting cause of such emotion, but not identical with it. 52. Such analysis of motives and intentions assumes the capacity to dissect the contributing forces of human will and human action in the precise ways described. Whether this is physiologically or psychologically sound, or philosophically satisfying, are not questions that judges or jurors generally have the time or inclination to ponder, still less answer. 53. Motive is neither necessary nor sufficient: Because motive, as such, is not an ingredient of a legal offence (such as the murders with which the appellant was charged), it is not necessary, as a matter of law, for the prosecution to prove that an accused had a particular motive, still less one to commit the offence in question. This rule is based not only upon sound legal analysis of the actual ingredients of the offence. It is also grounded in highly practical

considerations. The United States Supreme Court in Pointer v United States 151 US 396 (1894) at 413 explained: The law does not require impossibilities. The law recognizes that the cause of the killing is sometimes so hidden in the mind and breast of the party who killed, that it cannot be fathomed, and as it does not require impossibilities, it does not require the jury to find it. 54. Yet even if a motive can be proved, as part of the circumstantial case which the prosecutor seeks to build against the accused, it will not, of itself, be sufficient to establish guilt of the offence. A motive may, in the circumstances, be so remote or unlikely that it makes any conversion of emotion into action an unlikely possibility. A person may hate another but be unwilling, or unable, to convert such hate into action or be restrained by fear of detection and punishment: The mere fact … [that] a party being so situated that an advantage would accrue to him from the commission of a crime, amounts to nothing, or next to nothing, as a proof of his having committed it. … Still, under certain circumstances, the existence of a motive becomes an important element in a chain of presumptive proof. 55. Motive and proof: It is because motive (or lack of it) will sometimes be considered highly relevant to the drawing of inferences and the pursuit of the chain of proof, that questions can arise in a criminal trial as to what the judge should tell the jury about the subject. The reason that assistance is sometimes necessary follows from the experience of humanity that ordinary people ‘do not act wholly without motive’. It is for just such a consideration that evidence of motive is generally regarded as admissible in criminal cases, because it is thought to make it more likely that the crime was committed. It was also upon such bases of ‘sound sense’ and common reasoning that this Court, in Plomp v The Queen (1963) 110 CLR 234, a case involving the drowning of the accused’s wife whilst swimming with him, upheld the proof of the facts that the husband had formed a liaison with another woman, to whom he had represented himself to be a widower and whom he had promised to marry.

56. In the cases before Plomp there had sometimes been suggestions that evidence of motive should not be received without some independent proof of the accused’s involvement in the crime first being established. That approach had grown out of a concern that too much weight might otherwise be accorded by a jury to evidence of motive. Occasionally, the exploration of the motives of a witness or of the accused may open up impermissible considerations, having regard to the accusatorial nature of the criminal trial. However, the decisions of this Court have consistently recognised that, in some circumstances in criminal trials, evidence of motive may be ‘of the greatest importance’. … 57. Judicial instructions on motive: It follows from the foregoing that a number of general propositions can be accepted to guide judges in the consideration of whether they [page 49] should give instructions to a jury concerning motive, where that issue has arisen as a live one in the course of the trial, and if so in what terms: (1) No general direction can be formulated to accommodate all the different circumstances that can arise. If any directions are given on the subject of motive, they should be brief because the consideration of the relevance of motive (or lack of it) is quintessentially a task for the jury, viewing questions about motive in the context of the evidence as a whole. (2) Where the prosecution has not sought, or has failed, to prove a motive on the part of the accused for the crime, the judge may consider whether it is appropriate to make it clear to the jury that the prosecution has no obligation to show a possible motive, and that the absence of a proved motive cannot as a matter of law be fatal to its case. Sometimes the precise motives of individuals (if any) will never be known to anyone other than themselves. In such circumstances, it would be completely unreasonable to require the prosecution to prove a motive and the law does not impose that obligation. (3) Where a motive of some kind is proved by the evidence, but it appears a trivial one, disproportionate to the crime alleged, it may be proper for the judge to draw such disproportion to the

notice of the jury, in fairness to the accused, given that ‘[t]he stronger the motive the more influence it is likely to have [on the jury]’. On the other hand, the judge may also point out that proportion in such matters will sometimes be absent. To reasonable and law abiding citizens many serious crimes appear to have been committed upon trivial motives, wholly disproportionate to the gravity of the wrong. (4) Where the prosecution has established strong evidence of a motive, it will often be necessary to warn the jury that they must look at all the circumstances of the case and not be unduly affected by the evidence that the accused had a motive to commit the crime. This is because of the fact that many who have powerful motives to offend never do so. Motivation is simply one item of the evidence in the case that may tend to show that a particular person committed an alleged act. The jury may therefore need to be reminded that allowance should be made for the fact that having a motive, and even expressing it, does not, as such, constitute proof of involvement in a crime. (5) Where there is no evidence that the accused had a motive to commit the crime alleged, that is ‘always a fact in favour of the accused’. There is some authority to suggest that a trial judge need not draw that fact to the notice of the jury. However, especially in circumstances of a heinous crime, if a judge gives any direction about motive, it would generally be fair and prudent to draw to the jury’s notice the absence of proved motive as a consideration favouring the accused. As Griffith CJ observed: ‘the more heinous the act … the more important becomes the question of motive’. If none is proved, that is a consideration that the jury will need to weigh in judging whether the prosecution has proved the guilt of the accused to the criminal standard. (6) Nonetheless, if any such comment is made, it should be balanced by drawing attention to the obvious fact that, in a particular case, ‘there may be a motive, and perhaps a strong one, but no evidence of it available’. … 58. The present case and conclusions: When regard is had to the foregoing general principles, and the overriding need to provide

the jury with a relevant, comprehensible and balanced instruction on the applicable law, I am not convinced that the charge given to the jury in the present case concerning motive fell short of the legal requirements. 59. This was not simply a case of lack of motive — a missing part of the jigsaw that the prosecution had failed to provide. It was a case where the appellant had set out affirmatively to prove the absence of motive. He did this by calling evidence of his own [page 50] good character (suggested to be incompatible with such terrible crimes) and by calling the testimony of witnesses that is referred to in the joint reasons. Both the prosecutor and counsel for the appellant addressed the jury concerning the absence of evidence of motive. In discussion between the trial judge and counsel before the judge’s charge was delivered, the issue of motive was raised. Counsel for the appellant did not contest that the prosecution had no obligation to establish motive; nor could he have done so. 60. The judge’s directions about motive followed the instructions concerning the use to which the jury could put the evidence of the appellant’s good character. Correctly, the judge told the jury that such character evidence could be regarded as pointing to the unlikelihood that the appellant would have conducted himself in the way alleged by the prosecution. He also told the jury that such evidence could persuade them to give greater weight to his sworn testimony. He did not incorrectly tell the jury that the absence of proof of motive was irrelevant to their deliberations. Such a statement would have been erroneous and a material misdirection. 61. On the issue of motive, the judge accurately told the jury that the prosecution was not required to prove a motive. He informed them that the use they made of the question of motive was for them to evaluate. He pointed out that it is ‘comforting to an ordinary human being where you are seeking to assess somebody’s action to know why they did it’. 62. Having opened up the issue of motive and made the foregoing comments, the judge did not tell the jury that the want of proof by the prosecution of any motive on the part of the appellant was a factor that the jury might conclude supported the appellant’s

protestations of innocence. He merely reminded them of the prosecutor’s statement, in address, that some ‘crimes of great violence have been committed without motive’. In my view, it would have been preferable had his Honour balanced his reiteration of the Crown’s assertions with instruction to the jury concerning the significance that the lack of proof of motive might have in their estimation of the evidence. Instead, his Honour became diverted into a suggestion, raised by counsel, that whoever had committed the offence had a ‘disturbed mind’ and that, therefore, rational conduct in accordance with a proved motive was not to be expected in this case. 63. With respect, I do not agree with the joint reasons that the judge was exempted from calling to the attention of the jury the lack of evidence of motive on the basis that, had he raised this, he would have been obliged to point to the distinction between a lack of proof of motive and the absence of motive in fact. A proper direction, in the present case, could not have ignored the affirmative evidence called by, and for, the appellant (mentioned in the joint reasons) which sought to establish positively, from his relationships with the deceased family members and his conduct before and after the killings, that he had no motive in fact to act in the way alleged. 64. Whilst expressing a sense of unease concerning the balance of the judge’s instruction on motive, I have concluded that there was no material misdirection in the circumstances. The law does not establish a set formula to be followed on this subject. It is undesirable that it should do so. So far as it went, what the judge said was accurate. There was no legal obligation upon him to go further. He was not expressly asked to do so. Instead, the debate at trial became enmeshed in the side issue of ‘disturbed mind’ from which there was, ultimately, adequate extrication. I remind myself, once again, of the need to avoid an unduly censorious scrutiny of a judge’s instruction to the jury ‘sentence by sentence, in search for a fault’. I am not prepared in the circumstances to hold that any want of balance in the judge’s instructions on the issue of motive amounted to a material misdirection vitiating the lawfulness of the appellant’s trial. [In a separate judgment, Callinan J agreed that the appeal should be dismissed. Appeal dismissed.]

[page 51] 1.74 Two people can have the same intention but different motives. Take two individuals who each kill their fathers, one with the motive of inheriting the family fortune, and the other in response to the father’s wish to avoid further suffering. Their motives are different, but their intention is the same, that is, to cause the death of their father. It is not necessary to establish an accused person’s motive to establish the required fault element. Each is guilty of murder but motive may be relevant when sentencing (see 12.46 and following). 1.75 Proof of an intention to bring about a certain result for the purpose or proving an offence must be distinguished from proof of a motive in bringing about a certain result. While proof of motive might aid in proving the accused’s intention it cannot substitute for intention or purpose. Zaburoni is also extracted and considered at 5.43. Zaburoni v R [2016] HCA 12 High Court of Australia [Zaburoni was convicted of an offence under the Criminal Code (Qld) of unlawfully transmitting a serious disease to another with intent to do so. The disease was HIV which was transmitted to the complainant by having unprotected intercourse with the appellant. The appeal to the High Court was concerned with whether the evidence proved the intention of the appellant to transmit HIV to the complainant.] Kiefel, Bell and Keane JJ: [footnotes omitted] … 14 Where proof of the intention to produce a particular result is made an element of liability for an offence under the [Queensland] Code, the prosecution is required to establish that the accused meant to produce that result by his or her conduct. As the respondent correctly submits, knowledge or foresight of result, whether possible, probable or certain, is not a substitute in law for proof of a specific intent under the Code. In the last-mentioned

respect, the Code is distinguished from its Commonwealth counterpart, which allows that a person has intention with respect to a result if the person is aware that the result will occur in the ordinary course of events. 15 Where the accused is aware that, save for some supervening event, his or her conduct will certainly produce a particular result, the inference that the accused intended, by engaging in that conduct, to produce that particular result is compelling. Nonetheless, foresight that conduct will produce a particular result as a “virtual certainty” is of evidential significance and under the Code it remains that the trier of fact must be satisfied that the accused meant to produce the particular result. 16 It is necessary to say something in this context about the concepts of purpose, desire and motive. Discussions of proof of intention sometimes equate desire with motive. The respondent’s submissions treat motive and purpose as synonyms. This is in aid of the submission that motive is irrelevant to criminal responsibility under the Code. 17 In ordinary parlance, purpose, desire and motive may be used interchangeably. However, in law motive describes the reason that prompts the formation of the accused’s intention. The accused may fire a pistol at his business partner. His intention or purpose in pulling the trigger may be to kill. His motive for forming that intention may be to avoid repaying a debt he owes to his partner. Where liability for an offence requires proof of the intention to produce a particular result, the prosecution must establish that the accused had that result as his or her purpose or object at the time of engaging in the conduct. Purpose here is not to be equated with motive. [page 52] 18 In Willmot, Connolly J observed that the notion of desire is not involved in proof of intention. It is true that in law a person may intend to produce a particular result without desiring that result. Nonetheless, as Professor Williams has observed, intention generally does involve desire. Illustrations of the distinction between desire and intention commonly raise a false issue. Thus, Professor Gillies illustrates the proposition that intention in the criminal law does not connote desire by the example of the

accused who sets fire to his enemy’s house so as to spite the enemy even though he regrets the destruction of the house because it is a masterpiece of period architecture. Accepting the accused’s refined sense of regret, it hardly seems apt to say that in setting fire to the house he did not desire to destroy it. A direction that a person may do something, fully intending to do it although the person does not desire to do it may often be confusing. Unless the facts truly raise the issue the direction should not be given. 19 Proof of the s 317(b) offence required the prosecution to establish beyond reasonable doubt that, at the time the appellant engaged in unprotected sexual intercourse with the complainant, he had as a purpose the transmission of HIV to her. A person may engage in conduct having more than one object or purpose. The complainant said the appellant preferred unprotected sexual intercourse because it was more pleasurable. Accepting that the appellant engaged in unprotected sexual intercourse because it gave him pleasure is not necessarily inconsistent with proof that he also had the intention thereby of transmitting HIV to the complainant. It is the identification of evidence from which the latter inference could be drawn to the criminal standard that is the issue in this appeal … … 44 A rational inference open on the evidence is that the appellant engaged in regular unprotected sexual intercourse with the complainant because it enhanced his sexual pleasure and he was reckless of the risk of transmitting HIV to her. The existence of that inference lessens the force of reasoning to a conclusion that the appellant intended to transmit the disease from the fact of frequent unprotected sexual intercourse. Apart from frequent unprotected sexual intercourse, there is no evidence to support the inference that the appellant had that intention. And the evidence fell well short of proving that the appellant believed that it was virtually certain that he would pass on HIV by regular unprotected sexual intercourse. [The appeal was allowed and the conviction for the offence of intentionally transmitting the disease quashed.]

Coincidence of physical and fault elements

1.76 Both the physical and the fault elements must be present at the same time in order to constitute the offence. In Meyers v R (1997) 147 ALR 440 the accused conceded that he had killed the deceased (the physical element of murder) but argued that the Crown could not prove that at the time of inflicting the fatal blow, he intended to kill. The members of the High Court (Brennan CJ, Toohey, Gaudron, Gummow and Kirby JJ) said in a joint judgment at 442: An accused person who unlawfully kills another is not guilty of murder unless he does the particular act which causes the death with one of the specific intents that is an essential element of the crime of murder. The particular act and the intent with which it is done must be proved by the prosecution beyond reasonable doubt. Act and intent must coincide. If the circumstances of a fatal altercation are such that the prosecution can prove that some acts were done with the necessary intent but cannot prove that

[page 53] other acts were done with that intent, no conviction for murder can be returned unless there is evidence on which the jury can reasonably find that the act which caused the death was one of those done with the necessary intent.

1.77 Although referring here to the crime of murder, the requirement that ‘act and intent must coincide’ is a general proposition applicable to all crimes where proof of intent or some other fault element is necessary.

Special defendants Introduction 1.78 In any criminal prosecution the Crown has to establish that all the elements of the offence were present at the same time. Where the defendant is a child or a

corporation, the Crown must also prove something extra. In the case of a child under 14 years, the Crown must prove that the child knew that what he or she was doing was seriously wrong. In the case of a corporation, the Crown must prove that what was done that constitutes the crime was done with the authority of the corporation.

Children 1.79 It is presumed that children under the age of 10 years do not sufficiently understand the difference between right and wrong to be held criminally responsible for their actions. As a result, a child under the age of 10 cannot be convicted of a crime. Between the ages of 10 and 14 there is a rebuttable presumption of doli incapax; that is, it is presumed that the child does not sufficiently understand the difference between right and wrong, but that presumption may be rebutted by evidence from the prosecution to show that the child realised that his or her actions were ‘seriously wrong’. Division 7 of Pt 2.3 of the Criminal Code deals with the criminal responsibility of children. The position insofar as state offences are concerned is as follows: Children (Criminal Proceedings) Act 1987 (NSW) 5 Age of criminal responsibility It shall be conclusively presumed that no child who is under the age of 10 years can be guilty of an offence.

1.80 The Court of Criminal Appeal considered the issue of a child’s criminal responsibility in CRH. R v CRH (Unreported, 18 December 1996) NSW Court of Criminal Appeal [The accused was charged with two counts of sexual intercourse

with a child under 10 years, and one with a child under 16 years. The charges all related to the same victim, who was the accused’s cousin. In the third incident, when the victim was aged 10 years, the accused forced her to perform oral sex upon him. While she had her head in his lap, [page 54] an older child entered the room and the accused placed a blanket over the victim’s head in order, the Crown argued, to hide the victim. The trial judge accepted that this conduct could be evidence that the accused knew that what he was doing was wrong. At the time of the offences the accused was aged 12 or 13.] Newman J: In the beginning of his judgment in R (A Child) v Whitty (1993) 66 A Crim R 462 Harper J in the Supreme Court of Victoria observed: ‘No civilised society’ says Professor Colin Howard in his book entitled Criminal Law, 4th ed (1982), p 343, ‘regards children as accountable for their actions to the same extent as adults.’ … The wisdom of protecting young children against the full rigour of the criminal law is beyond argument. The difficulty lies in determining when and under what circumstances that protection should be removed. … The presumption at common law that a person under the age of fourteen years is doli incapax is, as Kirkham DCJ rightly held, a rebuttable presumption. This presumption has been the subject of criticism in the United Kingdom from courts, governmental inquiries and academic commentators. The matter was recently ventilated in the House of Lords in C (A Minor) v Director of Public Prosecutions [1996] AC 1. The matter had come to the House of Lords by way of leave to appeal from a Divisional Court consisting of Mann LJ and Laws J. In turn the matter had come before the Divisional Court by way of case stated from a magistrate. In the Divisional Court Laws J in delivering his judgment had carried out an extensive review of the English authorities and commentaries dealing with the presumption. At 9 he observed as follows:

Whatever may have been the position in an earlier age, when there was no system of universal education and when, perhaps, children did not grow up as quickly as they do now-a-days, this presumption at the present time is a serious disservice to our law. It means that a child over ten who commits an act of obvious dishonesty, or even grave violence, is to be acquitted unless the prosecution specifically prove by discrete evidence that he understands the obliquity of what he is doing. It is unreal and contrary to common sense; and it is no surprise to find that modern Judges — Forbes J in JBH and JH (Minors) v O’Connell (1981) Crim LR 632, Bingham LJ in A v Director of Public Prosecutions (1992) Crim LR 34 — have looked upon the rule with increasing unease and perhaps rank disapproval. Having carried out that review and expressing his own rank disapproval of the presumption, he concluded: … I would hold that the presumption relied upon by the defendant is no longer part of the law of England. The House of Lords disagreed with him. I should add that in disagreeing with his conclusion all Lords present in the House, some expressing sympathy with Laws J’s view, were themselves of the view that any reform of the law should be undertaken by parliament and not by way of judicial pronouncement. The leading speech was that of Lord Lowry who reviewed not only the English authorities, governmental reports and white papers [and] the view of commentators, but also made reference to Commonwealth authorities including Whitty’s case, to which I have also made reference. Prior to making some observations relating to law reform he said: Clearly then, in my view the presumption, for better or worse, applies to cases like the present. I turn, therefore, to consider what must be proved in order to rebut the presumption and by what evidence. A long and uncontradicted line of authority makes two propositions clear. The first is that the prosecution must

prove that the child defendant did the act charged and that when doing that act he knew that it was a wrong act as distinct from an act of mere naughtiness [page 55] or childish mischief. The criminal standard of proof applies. What is required has been variously expressed, as in Blackstone, ‘strong and clear beyond all doubt or contradiction’, or, in R v Gorrie (1918) 83 JP 136, ‘very clear and complete evidence’ or in B v R (1958) 44 Crim App R 1, 3 per Lord Parker CJ, ‘it has often been put this way, that … guilty knowledge must be proved and the evidence to that effect must be clear and beyond all possibility of doubt’. No doubt the emphatic tone of some of the directions was due to the court’s anxiety to prevent merely naughty children from being convicted of crimes and in a sterner age to protect them from the draconian consequences of conviction. The second clearly established proposition is that evidence to prove the defendant’s guilty knowledge, as defined above, must not be the mere proof of the doing of the act charged, however horrifying or obviously wrong that act may be. As Erle J said in R v Smith (Sydney) (1845) 1 Cox CC 260: a guilty knowledge that he was doing wrong must be proved by the evidence, and cannot be presumed from the mere commission of the act. You are to determine from a review of the evidence whether it is satisfactorily proved that at the time he fired the rick (if you should be of the opinion he did fire it) he had a guilty knowledge that he was committing a crime. The report of R v Kirshaw (1902) 18 TLR 357, 358, where a boy of 13 was charged with murder, states: [Bucknill J] in summing up, pointed out that the commission of a crime was in itself no evidence whatever of the guilty state of mind which is

essential before a child between the ages of 7 and 14 can be condemned. Earlier when reviewing [the reasons of Laws J] at p 33 Lord Lowry had observed: The presumption itself is not, and never has been, completely logical; it provides a benevolent safeguard which evidence can remove. Very little evidence is needed but it must be adduced as part of the prosecution’s case, or else there will be no case to answer. In my view, if the decision in C’s case represents the common law of Australia as well as England then the evidence of the complainant as to the actions of the appellant after the alleged commission of the sexual assault in question would be insufficient to satisfy the test as stated above by Lord Lowry. I say this because the actions allegedly taken by the appellant are as consistent with naughty behaviour as wrong behaviour. On the criminal standard my view is that no prima facie case has been made out. The question is does C represent the common law of Australia? In this State under the Children (Criminal Proceedings) Act 1987 by s 5 it is conclusively presumed that no child under the age of ten years may be guilty of an offence. This is in fact a re-statement of the common law. The question remains whether the common law, as to the rebuttal presumption of doli incapax in relation to children between the ages of ten and fourteen years, remains. In R v M (1977) 16 SASR 589 the Full Court of South Australia considered the following part of the charge made by the trial Judge on this point. She had said: Ladies and gentlemen, before we adjourned at lunch time I had pointed out to you that if you are not satisfied beyond reasonable doubt when John hit Chris over the head with the brick and caused his death, he knew he was doing wrong in the sense of doing what ordinary people would disapprove of, then he is entitled to be acquitted of any offence.

Bray CJ at 591 to 592 raised, in my view, the standard of proof required. He said: I would, with respect, deprecate the word ‘disapprove’ in this context. I think it is too weak. Adults frequently disapprove of breaches of decorum and good manners on the part of children and of their lack of diligence or tidiness without regarding the acts of omissions in question as wrong in the relevant sense. But I do not think the jury could have been misled into thinking that it was sufficient if the appellant knew that ordinary people would regard hitting Chris several times on the head with a brick as something in the same category as [page 56] failing to wash his hands before meals, put his clothes away, or thank his host after being entertained. Her discussion of the details of the evidence and her citation of the questions addressed to the doctors in which the word ‘disapprove’ appears and of their answers is sufficient to show this. In Whitty’s case, (supra) Harper J in a shoplifting case, in concluding that the appellant before him knew that what she was doing was wrong in terms of her appreciation of the true nature and quality of her act, relied not only on the facts relating to the theft, but also on an admission she made, namely that she ‘went into the shop, Target, and stole those jeans’. The word ‘stole’ at first appeared in the subject answer and his Honour held: ‘In the context, no other conclusion is reasonably open but that the appellant used it deliberately and appropriately and knew what it meant.’ In my view, Harper J was adopting the type of test adverted to by Lord Lowry in C’s case. In short, it is my view that such Australian authority as exists is consistent with the law as expressed by Lord Lowry in C. This is the law of Australia. That being so, as I have said, the evidence was insufficient to rebut the presumption of doli incapax having regard to the criminal standard of proof. Accordingly, his Honour ought to have acceded to the

application made on behalf of the appellant that the first count be taken from the jury and a verdict of not guilty should then have been entered. The learned Crown Prosecutor has properly conceded before this Court that in the circumstances should this view be held by the Court, the appeal must succeed. … [Hidden and Smart JJ agreed with the reasons given by Newman J.]

Corporate defendants 1.81 A corporation is a legal entity that can also commit crimes. Section 4 (the definitions section) of the Crimes Act provides that any reference to a ‘person’ includes any ‘society, company, or corporation’ and so these can, at least in theory, be guilty of the offences set out in the Act (see also Interpretation Act 1987 (NSW) s 21). Where a corporation has committed an offence for which the penalty is imprisonment, fines up to the limit of 2000 penalty units have been prescribed depending upon the nature of the court imposing the sentence: Crimes (Sentencing Procedure) Act 1999 (NSW) s 16. Part 2.5 of the Criminal Code (Cth) deals with corporate criminal responsibility for Federal offences. Presidential Security Services of Australia Pty Ltd v Clinton Joseph Brilley (2008) 73 NSWLR 241; 67 ACSR 692; [2008] NSWCA 204 NSW Court of Appeal [Mr Bingle was a security guard as well as the managing director and sole employee of the appellant company. He was on duty at a sports club when the respondent, in company, broke in to the club in order to rob it. Bingle shot at the respondent and, on disputed evidence, attempted to shoot him several more times. The respondent sued the appellant company (not Mr Bingle) for damages. During the course of the appeal, the liability of the company for the criminal actions of Mr Bingle was discussed.] [page 57]

Ipp JA: … 140 The question that then arises (which was addressed neither by counsel at the trial, nor her Honour, and which was for the first time raised on appeal by this Court), is whether the defendant, as a company, could be liable for the offence of assault. In other words, can a corporation commit an assault? If so, was the defendant company liable for the offence of assault on the facts of the case? Once the plaintiff sought to rely on s 54(2), these questions had to be resolved. 141 There are two classes of criminal offence that a company cannot commit. The first class arises by virtue of a company’s status as an unnatural or artificial person. For example, a company cannot commit suicide or bigamy. The second class arises by virtue of the company’s inability to be punished. Thus, a company cannot commit a crime where the only punishment is a term of imprisonment. … [L]egislation converting physical sentences and punishments into fines [has been passed in Australia]. In NSW, this was achieved by s 16 of the Crimes (Sentencing Procedure) Act 1999: 16 Fines for bodies corporate for offences punishable by imprisonment only If the penalty that may be imposed (otherwise than under this section) for an offence committed by a body corporate is a sentence of imprisonment only, a court may instead impose a fine not exceeding: (a) 2,000 penalty units, in the case of the Supreme Court, the Court of Criminal Appeal, the Land and Environment Court, the Industrial Relations Commission or the District Court, or (b) 100 penalty units, in any other case. 143 Thus, to use the example of assault occasioning actual bodily harm, a company is capable of committing the crime despite punishment under s 59 (and s 61) of the Crimes Act being in the form of imprisonment alone … 144 The fact that a company is capable of committing a crime and may be indicted for an offence does not, however, mean that the

inherent characteristics of an artificial person are not relevant to whether a company may be found guilty of certain offences, particularly those offences of which mens rea is an element. 145 Generally speaking, once a company is capable of committing a particular offence, it may be found guilty of that offence on one of two bases, namely, on the grounds of vicarious responsibility or on the basis that the person who committed the actus reus and had the requisite mens rea was the directing mind and embodiment of the company in the Tesco Supermarkets Ltd v Nattrass [1972] AC 153 sense. 146 Whether the company may be found guilty on one or other of these bases depends on the legislation applicable, the nature of the offence in question, and the status and position within the company of the person who performs the acts said to constitute the offence. 147 Generally, a company will not be found guilty, on the basis of vicarious liability, for a criminal offence having mens rea as an element. This is traceable to at least the eighteenth century. … 148 As Lord Morris and Lord Diplock explained in Tesco Supermarkets Ltd v Nattrass, the rejection of vicarious liability in the criminal context is based upon a refusal to attach criminal liability to a person absent a guilty mind. 149 I reiterate that, absent a statutory provision to the contrary, vicarious liability has been rejected as a means of establishing mens rea in crimes requiring proof of that element (as otherwise criminal guilt could be found without the offender possessing the necessary intent). [page 58] 150 The situation is different, however, where mens rea does not form part of the offence. Parliament may create offences of strict or absolute liability, and it has long been accepted that, in such a case, the application of vicarious liability principles is not inhibited. 151 The following statement of Atkin J in Mousell Brothers Ltd v London and North-Western Railway Co (1917) 2 KB 836 at 845 is usually referred to as the leading authority in this area:

I think that the authorities cited by my Lord make it plain that while prima facie a principal is not to be made criminally responsible for the acts of his servants, yet the legislature may prohibit an act or enforce a duty in such words as to make the prohibition or the duty absolute; in which case the principal is liable if the act is in fact done by his servants. To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed. 152 Mousell Brothers Ltd v London and North-Western Railway Co was applied by the High Court of Australia in The King and The Minister for Customs v Australasian Films and Another (1921) 29 CLR 195. The Court said at 215: We proceed to consider, by applying the tests suggested by Atkin J [in Mousell Brothers Ltd v London and NorthWestern Railway Co], whether sec 241 of the Customs Act has the effect of making the principal, if a company, liable for the act of its servant or agent when the person doing the act or some servant or agent of the company from whom he takes his instructions has the intention of defrauding the revenue. And at 217: Adopting the language of Atkin J quoted above, we think that the principal is liable in any case in which his servant or agent in the course of his employment ‘commits the default provided for in the statute in the state of mind provided for by the statute. Once it is decided that this is one of those cases where a principal may be held liable criminally for the act of his servant, there is no difficulty in holding that a corporation may be the principal. No mens rea being necessary to make the principal liable, a corporation is in exactly the same position as a principal who is not a corporation.’ If the principal is liable for the

fraud of the agent actually committing the offence, he is no less liable for the fraud of some superior servant or agent by whose direction the offence is committed, but we see no reason for extending the responsibility of the principal to a case in which it is sought to make the principal responsible for the state of mind or the state of knowledge of some other servant or agent not concerned in the doing of the act. … 154 Assault is not an offence of strict or absolute liability. Furthermore, there is nothing in ss 59 or 61 of the Crimes Act that indicates that the requisite mens rea for the establishment of those offences can be derived vicariously from a servant or agent of a corporation. It follows that the defendant in this case could not be vicariously criminally liable for an assault committed by Mr Bingle in the course of his employment … [In separate judgments, Beazley JA and Allsop J agreed with Ipp JA. Appeal allowed on other grounds and the matter remitted to the District Court for re-hearing.]

Conclusion 1.82 Before a person can be found guilty of a crime the Crown must prove, beyond reasonable doubt, that all the necessary physical and fault elements of the crime were present and that they were present at the same time. In the case of children between the ages of 10 and 14, the Crown must also prove that the child [page 59] knew that what he or she was doing was wrong, as opposed to ‘naughtiness or childish mischief’. In the case of corporate defendants, the Crown must also prove that the actions of the individual can be attributed to the corporation because they ‘are within the scope of the authority conferred by the corporation upon’ that person (EPA v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; 118 ALR 392 per Brennan J).

STRICT AND ABSOLUTE LIABILITY 1.83 The traditional view is that all crimes require proof of a physical and a fault element. Although that is true as a general rule, and particularly true of serious crimes, there are some crimes where there is no need to prove any particular fault element. Such crimes fall into two categories: 1.

crimes of strict liability; and

2.

crimes of absolute liability.

Generally it is a question of construction of the section creating the particular offence to determine whether the offence is one of strict or absolute liability (see He Kaw Teh v R at 1.88). However, the Criminal Code (Cth) requires that the offence itself state whether any element is one of strict liability or absolute liability, otherwise the offence is to be read as containing the relevant default fault element (see Criminal Code Pt 2.2 Div 6). Under the Code, an element of an offence that gives the Commonwealth jurisdiction is usually designated as strict or absolute liability. See, for example, the offence of theft of Commonwealth property in s 131.1 of the Criminal Code (Cth), where absolute liability applies to the element that the property belongs to a Commonwealth entity. 1.84 A crime of strict liability is established if the prosecution can prove that the accused performed the physical elements. There is no need to prove that the accused either intended to perform, or was aware that he or she might be performing, the prohibited action. The accused is, however, entitled to be acquitted if he or she is able to raise some evidence to show that he or she had an honest and reasonable belief in certain facts and, if those facts were true, the accused would not be guilty of the offence. This is the defence of ‘mistake of fact’, and needs to be distinguished

from a ‘mistake of law’, which arises when the accused intends to do the prohibited act but does not realise it is illegal. A mistake of law is usually no defence. The offence of dangerous driving causing death or grievous bodily harm under s 52A of the Crimes Act is an offence of strict liability (see Jiminez v R (1992) 173 CLR 572; 106 ALR 162). 1.85 In Ostrowski v Palmer (2004) 218 CLR 493; 206 ALR 422 at [2], Gleeson CJ and Kirby J said: The reason for the rule that ignorance of the law is no excuse For present purposes, we use the expression “elements of the offence” to embrace matters of exculpation, and without regard to any special consideration as to onus of proof that might exist in relation to particular offences. Ignorance of the legal consequences that flow from the existence of the facts that constitute an offence is ordinarily not a matter of exculpation, although it may be a matter of mitigation, and in some circumstances it may enliven a discretion not to prosecute.

[page 60] Their Honours said at [10]: The common law applicable to a case such as the present was stated by Jordan CJ in R v Turnbull (1943) 44 SR (NSW) 108 at 109, in a passage quoted by Brennan J in He Kaw Teh v R [see below at 1.88], as follows: … it is also necessary at common law for the prosecution to prove that [the accused] knew that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing. If this be established, it is no defence that he did not know that the act which he was consciously doing was forbidden by law. Ignorance of the law is no excuse. But it is a good defence if he displaces the evidence

relied upon as establishing his knowledge of the presence of some essential factual ingredient of the crime charged. (emphasis added) What Jordan CJ referred to as “the ingredients necessary to make the act criminal” are what we have earlier called the elements of the offence.

1.86 In Ostrowski, the High Court held that a fisherman, provided by a government department with incomplete information regarding prohibited areas, who believed he had been provided with complete information and who was unaware that he was fishing in a prohibited area, had made an officially induced error of law, which was no excuse. 1.87 An example of a mistake of fact is provided by the case of a truck driver who is charged with driving an overloaded vehicle (Binskin v Watson (1990) 48 A Crim R 33). If it can be shown that the accused put the truck over a weighbridge and received a certificate that it was not over the maximum allowed weight, then the accused would have a reasonable belief that the truck was not overweight and could be acquitted even though, in fact, the weighbridge was wrong and the truck really was too heavy. It should be noted that where there is evidence that the defence relies upon a reasonable mistake of fact, the prosecution must negative that belief beyond reasonable doubt before the accused can be convicted. 1.88 An absolute liability offence is established where the legislation creating the offence, either by express words or by implication, provides that the defence of ‘mistake’ is not available. Deciding whether a criminal offence requires proof of some fault element, or if it is a strict liability offence or an absolute liability offence, requires an analysis of the statute that created the offence to determine the will of the parliament. He Kaw Teh v R

(1985) 157 CLR 523; 60 ALR 449 High Court of Australia [The appellant was convicted in Victoria of importing and of being in possession of heroin. In relation to the charge of importing the heroin he argued that he was unaware it was in his bag. His appeal raised the question of whether an honest and reasonable belief that there was no heroin in the bag would mean the appellant was not guilty even though he did, in fact, bring the heroin into Australia. The extracts from the judgments [page 61] below deal with the general principles of mens rea and when a defence of ‘mistake’, that is, an honest and reasonable belief in facts which if true would make the act innocent, will apply.] Gibbs CJ (with whom Mason J agreed): The applicant was charged in the County Court of Victoria with two offences — first, that on 20 October 1982 he imported into Australia 2.788 kg of heroin and secondly, that on the same date he had in his possession without reasonable excuse the same quantity of heroin. The charges were laid under pars (b) and (c) respectively of s 233B(1) of the Customs Act 1901 (Cth), as amended. The facts were within a short compass and of a familiar description. The applicant had travelled by air from Kuala Lumpur to Melbourne and after he had disembarked at the Melbourne Airport his baggage was inspected by Customs officials. In the course of the inspection he was found to be in possession of a bag which contained in a false bottom the heroin which was the basis of both the charges laid against him. In relation to both counts the learned trial judge directed the jury that no specific state of mind, whether of motive, intention, knowledge or advertence need be proved by the Crown. In relation to the first count he added that if the accused established by way of defence that he had an honest and reasonable belief in a set of facts which if they existed would make his act innocent, that would afford a defence to the charge. He said that the accused bore the onus of establishing such a defence, on the balance of probabilities and not beyond reasonable doubt. … The argument presented on behalf of the applicant raised some fundamental questions of the law relating to criminal responsibility. It was submitted that the learned trial judge erred in directing the

jury that the prosecution had no need to prove that a person charged under s 233B(1)(b) acted with guilty knowledge — in particular with knowledge that the baggage he brought into the country contained narcotic goods. Section 233B(1)(b) does not expressly make knowledge an element of the offence. To ‘import’ simply means to bring into the Commonwealth from abroad. … The word ‘import’ does not carry its own connotation of knowledge or intention. If one in fact brings goods into Australia from abroad one imports them, whatever one’s intention may be and whether or not one knows their nature or quality. Paragraph (b) does not contain any words — such as ‘knowingly’ — which themselves might reveal that the Parliament intended to make the importation of narcotics an offence only if it was intentionally or knowingly carried out; in that respect it differs from par (d) of s 233B(1), which makes it an offence to be ‘knowingly concerned’ in the importation of prohibited imports that are narcotic goods. However the provision has to be read in the light of the general principles of the common law which govern criminal responsibility. The relevant principle is stated in Sherras v De Rutzen [1895] 1 QB 918, at p 921, as follows: There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered. There has in the past been a tendency in Australia to regard this presumption as only a weak one, at least in the case of modern regulatory statutes: Proudman v Dayman (1941) 67 CLR 536, at p 540; Bergin v Stack (1953) 88 CLR 248, at p 261. However, the principle stated in Sherras v De Rutzen has more recently been reaffirmed in the Judicial Committee and the House of Lords (Lim Chin Aik v R [1963] AC 160, at p 173; R v Warner [1969] 2 AC 256, at p 272 and Gammon Ltd v A-G of Hong Kong [1984] 3 WLR 437, at p 441; [1984] 2 All ER 503, at p 507) and in this Court: Cameron v Holt (1980) 142 CLR 342, at pp 346, 348. The rule is not always easy to apply. Its application presents two

difficulties — first, in deciding whether the Parliament intended that the [page 62] forbidden conduct should be punishable even in the absence of some blameworthy state of mind and secondly, if it is held that mens rea is an element of the offence, in deciding exactly what mental state is imported by that vague expression. In deciding whether the presumption has been displaced by s 233B(1)(b), and whether the Parliament intended that the offence created by that provision should have no mental ingredient, there are a number of matters to be considered. First, of course, one must have regard to the words of the statute creating the offence. The words of par (b) of s 233B(1) themselves contain no clear indication of Parliament’s intention. However they stand in marked contrast to pars (a), (c) and (ca) of the subsection, all of which deal with the possession of prohibited imports in certain circumstances and all of which contain the words ‘without reasonable excuse (proof whereof shall lie upon him)’. The absence of those words from par (b) suggests that no reasonable excuse will avail a person who imports narcotics. That would lead to an absurdly Draconian result if it meant that a person who unwittingly brought into Australia narcotics which had been planted in his baggage might be liable to life imprisonment notwithstanding that he was completely innocent of any connection with the narcotics and that he was unaware that he was carrying anything illicit. On the other hand, if guilty knowledge is an ingredient of the offence, it becomes understandable that no excuse should be allowed to a person who has knowingly imported narcotics. This provides an indication, although only a slight one, that by par (b) the Parliament did not intend to displace the presumption of the common law that a blameworthy state of mind is an ingredient of the offence. The second matter to be considered is the subject matter with which the statute deals. Paragraph (b) of s 233B(1) and the other paragraphs of that subsection deal with a grave social evil which the Parliament naturally intends should be rigorously suppressed. The importation of and trade in narcotics creates a serious threat to the well-being of the Australian community. It has led to a great

increase in crime, to corruption and to the ruin of innocent lives. The fact that the consequences of an offence against s 233B(1)(b) may be so serious suggests that the Parliament may have intended to make the offence an absolute one. On the other hand, the subsection does not deal with acts which ‘are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty’, to repeat the words used in Sherras v De Rutzen, at p 922, to describe the first of the three classes of exceptions to the general rule which that case laid down. On the contrary, offences of this kind, at least where heroin in commercial quantities is involved, are truly criminal; a convicted offender is exposed to obloquy and disgrace and becomes liable to the highest penalty that may be imposed under the law. It is unlikely that the Parliament intended that the consequences of committing an offence so serious should be visited on a person who had no intention to do anything wrong and no knowledge that he was doing so. A third consideration is that which was mentioned in Lim Chin Aik v R, at p 174: It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something he can do, directly or indirectly … which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim. See also Sweet v Parsley [1970] AC 132, at p 163 and Gammon Ltd v A-G of Hong Kong, at p 443. A person bringing baggage into a country can no doubt take care to ensure that no drugs are contained in it. The public interest demands that such care should be taken. There is thus an argument, the strength of which I shall later consider, in favour of the view that the Parliament may have intended to penalise importation that was no more than careless. Clearly, however, no good purpose would be served by punishing a person who had taken reasonable care and yet had unknowingly been an innocent agent to import narcotics. [page 63]

These indications do not all point in the same direction, but at least they suggest the conclusion that the Parliament did not intend that the offence defined in par (b) should be an absolute one. The expression ‘mens rea’ is ambiguous and imprecise. The passage which I have cited from Sherras v De Rutzen suggests that it means ‘evil intention, or a knowledge of the wrongfulness of the act’. In Iannella v French (1968) 119 CLR 84, at pp 108–109, Windeyer J approved of the statement in which Jordan CJ in R v Turnbull (1943) 44 SR (NSW) 108, at p 109, described the mens rea of an offender: … assuming his mind to be sufficiently normal for him to be capable of criminal responsibility, it is also necessary at common law for the prosecution to prove that he knew that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing. However, as Lord Diplock pointed out in Sweet v Parsley, at p 162, recklessness may be a sufficient mental element of some offences, and there is no single mental element that is common to all offences. As will be seen, it is a question whether negligence can amount to mens rea. … There has developed a principle that an honest and reasonable mistake of fact will be a ground of exculpation in cases in which actual knowledge is not required as an element of an offence. This principle is founded on what was said in R v Tolson (1889) 23 QBD 168, particularly per Cave J, at p 181: At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which a prisoner is indicted an innocent act has always been held to be a good defence. This doctrine is embodied in the somewhat uncouth maxim, ‘actus non facit reum, nisi mens sit rea’. Honest and reasonable mistake stands in fact on the same footing as absence of the reasoning faculty, as in infancy, or perversion of that faculty, as in lunacy. …

[The] cases establish that if it is held that guilty knowledge is not an ingredient of an offence, it does not follow that the offence is an absolute one. A middle course, between imposing absolute liability and requiring proof of guilty knowledge or intention, is to hold that an accused will not be guilty if he acted under an honest and reasonable mistake as to the existence of facts, which, if true, would have made his act innocent. However there are a number of questions which have not been clearly answered. The first is whether the absence of an honest and reasonable belief in the existence of facts which would have made the act innocent is a form of mens rea or whether, on the other hand, an honest and reasonable mistake affords the accused a defence only when he is charged with an offence of which mens rea is not an element. A second question is whether the accused bears the onus of proving on the balance of probabilities that he acted under an honest and reasonable mistake of fact or whether it is enough if the evidence raises a reasonable doubt. Thirdly, it is a question whether the socalled defence of honest and reasonable but mistaken belief is available when the offence charged is of a truly criminal character, or whether it applies only to statutory offences of a regulatory kind. The Supreme Court of Canada, in an important judgment, has given confident answers to these questions. In R v Sault Ste Marie [1978] 2 SCR 1299 it was held that where an offence is truly criminal the prosecution must establish a mental element, and negligence is not enough for that purpose. However, it was held, there is a middle position between cases where full mens rea is required and cases of absolute liability, namely, cases in which it is a defence for the defendant to prove, on the balance of probabilities, that he was not negligent. Prima facie, ‘public welfare offences’, or ‘regulatory offences’, [page 64] are in this last-mentioned class. Dickson J, who delivered the judgment of the Court, accordingly held, at pp 1325–1326, that offences could be classified into three categories, as follows: 1.

Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act

committed, or by additional evidence. 2.

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability.

3.

Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.

The Supreme Court of Canada has further held that in cases in which the prosecution is required to prove mens rea, there can be no conviction if the accused honestly believed that the facts were such as to make his actions innocent, whether or not the mistake was reasonable: Pappajohn v R (1980) 14 CR (3d) 243. It is of course clear that if guilty knowledge is an element of an offence, an honest belief, even if unreasonably based, may negative the existence of the guilty knowledge, and thus lead to an acquittal. … I should say immediately that if s 233B(1)(b) does not require the prosecution to prove guilty knowledge, but has the effect that an accused is entitled to be acquitted if he acted with the honest and reasonable belief that his baggage contained no narcotic goods, in my opinion the onus of proving the absence of any such belief lies on the prosecution. … [I]t has now become more generally recognized, consistently with principle, that provided that there is evidence which raises the question the jury cannot convict unless they are satisfied that the accused did not act under the honest and reasonable mistake: … Brennan J: … Recently, in Gammon Ltd v A-G of Hong Kong [1985] 1 AC 1 Lord Scarman, delivering the judgment of the Judicial Committee, stated five propositions (at p 14):

(1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is ‘truly criminal’ in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act. The first three propositions correctly emphasize the strength which contemporary authority gives to the presumption that mens rea is an essential element of an offence. The fourth proposition, if I may say so with respect, seems to be too categorical an approach to what is, after all, a question of statutory interpretation. It is not possible to decide that mens rea can be excluded only where the subject matter answers a given description (even so general a description as ‘an issue of social concern’), without regard to the whole of the statutory context. The fifth proposition reflects the purpose of the criminal law: to deter a person from engaging in prohibited conduct. The penalties of criminal law cannot provide a deterrent against prohibited conduct to a person who is unable to choose whether to engage in that conduct or not, or who does not know the nature of the conduct which he may choose to engage in or who cannot foresee the results which may follow from that conduct (where those results are at least part of the mischief at which the statute is aimed). It requires clear language before it can be said that a statute [page 65] provides for a person to do or to abstain from doing something at his peril and to make him criminally liable if his conduct turns out to be prohibited because of circumstances that that person did not know or because of results that he could not foresee. However

grave the mischief at which a statute is aimed may be, the presumption is that the statute does not impose criminal liability without mens rea unless the purpose of the statute is not merely to deter a person from engaging in prohibited conduct but to compel him to take preventive measures to avoid the possibility that, without deliberate conduct on his part, the external elements of the offence might occur. A statute is not so construed unless effective precautions can be taken to avoid the possibility of the occurrence of the external elements of the offence. In Lim Chin Aik, Lord Evershed speaking for the Judicial Committee said (at p 174): But it is not enough in their Lordships’ opinion merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim. The requirement of mens rea is at once a reflection of the purpose of the statute and a humane protection for persons who unwittingly engage in prohibited conduct. … The general principles … may now be summarized: (1) There is a presumption that in every statutory offence, it is implied as an element of the offence that the person who commits the actus reus does the physical act defined in the offence voluntarily and with the intention of doing an act of the defined kind. (2) There is a further presumption in relation to the external elements of a statutory offence that are circumstances attendant on the doing of the physical act involved. It is implied as an element of the offence that, at the time when the

person who commits the actus reus does the physical act involved, he either — (a) knows the circumstances which make the doing of that act an offence; or (b) does not believe honestly and on reasonable grounds that the circumstances which are attendant on the doing of that act are such as to make the doing of that act innocent. (3) The state of mind to be implied under (2) is the state of mind which is more consonant with the fulfilment of the purpose of the statute. Prima facie, knowledge is that state of mind. (4) The prosecution bears the onus of proving the elements referred to in (1) and (2) beyond reasonable doubt except in the case of insanity and except where statute otherwise provides. [Dawson J agreed with Gibbs CJ in relation to s 233B(1)(b). However, his Honour held in relation to s 233B(1)(c) that a person may possess narcotic goods if he or she is aware of possessing something but is unaware that what he or she possesses are in fact narcotics: that in such a case, the defence would be one of reasonable excuse. The defendant/applicant’s appeal was allowed.]

1.89 In CTM the High Court again considered the ‘defence’ of honest and reasonable mistake of fact. In this case, CTM (aged 17 at the time of the offence) was convicted of having sexual intercourse with a girl aged over 14 and under 16, ie, she was 15 years old. During CTM’s interview with police, he said he believed [page 66] the girl was aged over 16. The issue was then whether or not CTM could rely on a defence of ‘honest and reasonable mistake of fact’; that is, if he honestly and reasonably believed that she was over 16, was that a defence? In the extracts below, the judgments consider the issue of the defence, the burden of proof, and whether the defence of honest and reasonable mistake of fact is available to an

offence of this nature. If it were not available, the offence would be one of absolute liability. CTM v R (2008) 236 CLR 440; 247 ALR 1; [2008] HCA 25 High Court of Australia [Kirby J commenced his judgment with a statement of the history of this matter, and accordingly, extracts from his judgment are set out before the joint judgment of Gleeson CJ, Gummow, Crennan and Kiefel JJ.] Kirby J: … Trial of the accused: The appellant was tried before Garling DCJ and a jury in the District Court of New South Wales upon an indictment containing two counts. The counts alleged offences against s 61J of the Act (sexual intercourse without consent in circumstances of aggravation) and, in the alternative, s 66C(4) (sexual intercourse with a person aged between 14 and 16 years in circumstances of aggravation). The jury found the appellant not guilty of those offences and upon them he was discharged. The jury went on to find the appellant guilty of a statutory alternative to the s 66C(4) offence, being an offence against s 66C(3) of the Act. This involved a non-aggravated form of the offence of having sexual intercourse with a person between the ages of 14 and 16. The complainant was a female friend of the appellant. She was 15 years of age at the time of the alleged offence. The appellant was then 17 years of age. Inherent in the jury’s verdict on the s 66C(3) offence was a conclusion that the appellant and the complainant had engaged in consensual sexual intercourse. The appellant’s conduct was not unlawful for want of consent, or aggravated because the complainant had been under the influence of alcohol, as had been alleged in respect of the offences charged in the indictment. It was unlawful because the complainant was below the age at which the law says a person may consent to sexual intercourse. In the Court of Criminal Appeal, the appellant argued that the jury’s verdict was unreasonable. That Court rejected this argument. It has not been maintained in this Court. Sentencing the prisoner: In sentencing the appellant, the trial

judge found no difficulty in reconciling the verdicts returned by the jury. The trial judge described the facts as he took them to be established: The facts which the jury obviously accepted are that on 24 October 2004 [the complainant], a person of 15 years of age, who knew the prisoner quite well, had rung him and contacted him and had gone to the premises where he and some other boys lived. She was considerably affected by alcohol. During the course of that evening he and [the complainant] had sexual intercourse, and she was under the age of 16, namely 15, and they have obviously accepted that he knew [that fact], and they are the brief facts upon which I sentence him. He knew her, he had been friendly with her over a significant period of time. He was a young lad … 17 years of age at the time, [and] the difference in their age is minimal, but the fact is it is an offence and he has been found guilty of it. … [H]e denied having sexual intercourse, however, the jury was satisfied beyond reasonable doubt to the contrary. There is little else I can say about it. It is one of these very difficult sentences because what you are doing, in effect, is sentencing a person where two people of a similar age agreed obviously to have sexual intercourse, but she is of such an age that Parliament has deemed that it is an offence. [page 67] In the result, the trial judge sentenced the appellant to a term of eighteen months imprisonment with a non-parole period of nine months. He suspended the custodial sentence on the basis that “special circumstances” warranted that course. In the Court of Criminal Appeal, it was accepted by the prosecution that the sentence imposed had failed to take into account the Children (Criminal Proceedings) Act 1987 (NSW). Provisions of that Act applied to the appellant because, for its purposes, he was himself a child. Thus, although the Court of Criminal Appeal dismissed the appellant’s appeal against conviction, it upheld his application for leave to appeal against sentence. It quashed the sentence and

ordered that the matter be remitted to the District Court for the resentencing of the appellant according to law. Court of Criminal Appeal: The principal focus of the appellant’s conviction appeal in the Court of Criminal Appeal was whether a “common law defence” of honest and reasonable mistake of fact applied to a charge based on s 66C(3) of the Act, such as would exculpate the appellant if he had held a belief, at the time of the sexual intercourse, that the complainant was over the age of 16 years. By reference to decisions of this Court and other courts, to English authority, and to the legislative history of the relevant provisions of the Act (with particular reference to the repeal of s 77(2) of the Act and to extrinsic material explaining the purpose of that repeal), the Court of Criminal Appeal unanimously concluded that the “common law defence” was not “activated” in respect of s 66C of the Act. There was thus no need for the Court of Criminal Appeal to “go on to determine whether there was evidence to support the common law defence in the present case”. Whilst the trial judge had given certain directions on the assumption that the “defence” applied, he had not been obliged by law to do so. Despite this, the Court of Criminal Appeal noted an alternative submission advanced for the prosecution to the effect that, even if the “defence” had applied to s 66C(3) of the Act, it amounted, in the present case, to a “contingent defence”, and could not be maintained. The prosecution argued that, because the appellant’s case at trial had been that he did not have intercourse with the complainant at all, he could not also assert the inconsistent proposition that “if he did, he was mistaken as to her age and the fact that she was not consenting”. The Court of Criminal Appeal rejected this argument as incompatible with the decision of this Court in Pemble v The Queen. Appeal and contentions in this Court: In this Court, the appellant argues that the Court of Criminal Appeal erred in finding that the “defence” of “honest and reasonable mistake” as to the age of the complainant was not available in respect of s 66(3) of the Act. By a notice of contention, the respondent has submitted that the

Court of Criminal Appeal erred in holding that Pemble has the effect that the “common law defence of honest and reasonable mistake applies even though the defence relied upon was not that the appellant, at the time of having intercourse, mistakenly believed that the complainant was over 16, but a denial that intercourse occurred at all”. The respondent reiterated its argument that any defence of honest and reasonable mistake as to age “does not apply in a case such as the present where the accused denies committing the act to which the mistaken belief relates”. The respondent further contends that the Court of Criminal Appeal erred in holding that the onus of disproving honest and reasonable mistake, where applicable, lies on the prosecution. The respondent argues that “[i]f this Court were to decide that the common law defence was available in this case … the trial judge’s direction placing the onus of establishing the defence on the accused on the balance of probabilities was correct” … [page 68] Gleeson CJ, Gummow, Crennan and Kiefel JJ: [footnotes omitted] In 1897, Sir Samuel Griffith, then Chief Justice of Queensland, prepared for the Government of Queensland a Draft Code of Criminal Law. In a letter to the Attorney-General, enclosing this monumental work, Sir Samuel wrote: Criminal Responsibility. — This most important and difficult branch of the law is dealt with in Chapter V. I have appended to several of the sections Notes to which I invite special attention. No part of the Draft Code has occasioned me more anxiety, but I may add that I regard no part of the work with more satisfaction. Chapter V of the Draft Code dealt, among other things, with the mental element necessary to attract criminal responsibility. It included the following provision: 26. A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject. In a marginal note against that provision, Sir Samuel wrote: “Common Law”. The provision was enacted as s 24 of the Criminal Code (Q). In Thomas v The King, Dixon J said that the language of the Code, which was also taken up in the other Code States of Tasmania and Western Australia, in this respect reflected the common law with complete accuracy. Clause 26 appears to have been taken substantially from Stephen’s Digest of the Criminal Law, and was in accordance with what Cave J said in R v Tolson (a bigamy case in which the accused, at the time of the second marriage, believed on reasonable grounds that her husband was dead): At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which a prisoner is indicted an innocent act has always been held to be a good defence. In the same case, Cave J explained the reason for the principle: Now it is undoubtedly within the competence of the legislature to enact that a man shall be branded as a felon and punished for doing an act which he honestly and reasonably believes to be lawful and right; just as the legislature may enact that a child or a lunatic shall be punished criminally for an act which he has been led to commit by the immaturity or perversion of his reasoning faculty. But such a result seems so revolting to the moral sense that we ought to require the clearest and most indisputable evidence that such is the meaning of the Act. What is involved is a basic legal principle of criminal responsibility which informs our understanding, and interpretation, of the criminal law. That law is, to a large extent, although in most Australian jurisdictions not completely, governed by statute. The Crimes Act 1900 (NSW) (“the Crimes Act”) is not a code, but it contains provisions dealing with most serious offences against the person. The legal effect of some of those provisions, of which those relating to homicide are a well-known example, can be understood only against a background of common law principle. Where the

problem is one of interpretation of what Parliament has enacted, general principles of criminal responsibility inform such interpretation, but ultimately it is the language of the statute that is controlling. A principle as to criminal responsibility, such as that described above, as is acknowledged, may be excluded by a sufficiently plain manifestation of legislative intention. … Honest and reasonable mistakes of fact do not cover the whole field of risk of criminal liability to which a person may be exposed by making an error. Mistakes of law are not a ground of exculpation: ignorance of the law is no excuse. Moreover, the moral sense invoked by Cave J, at least in Australian law, does not extend to cover unreasonable [page 69] mistakes. The concept of mistake itself is protean. The state of mind that, in a given set of circumstances, will qualify as a mistaken belief in a fact or state of affairs may be a matter of difficulty. An honest and reasonable belief in a certain fact or state of affairs may be very different from an absence of concern. Even so, the point made by Cave J at the end of the second passage quoted above continues to be of fundamental importance to the function of courts in seeking to find and give effect to the meaning of criminal legislation. While the strength of the consideration may vary according to the subject matter of the legislation, when an offence created by Parliament carries serious penal consequences, the courts look to Parliament to spell out in clear terms any intention to make a person criminally responsible for conduct which is based on an honest and reasonable mistake. This appears to us to be closely related to the principle of statutory interpretation which was discussed in Plaintiff S157/2002 v The Commonwealth, Al-Kateb v Godwin, and Electrolux Home Products Pty Ltd v Australian Workers’ Union, and which was applied by the whole Court in the several judgments in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission. There is no present need to expand upon that discussion. Where it is a ground of exculpation, the law in Australia requires that the honest and reasonable, but mistaken, belief be in a state of affairs such that, if the belief were correct, the conduct of the accused would be innocent. In that context, the word “innocent”

means not guilty of a criminal offence. In the case of an offence, or a series of offences, defined by statute, it means that, if the belief were true, the conduct of the accused would be “outside the operation of the enactment”. As explained in He Kaw Teh v The Queen, the evidentiary onus of raising the ground of exculpation is on the accused, but, once that occurs, the ultimate legal onus of displacing the ground lies on the prosecution. The concept of evidentiary onus itself needs to be understood in the light of the subject matter to which it applies; here, honest and reasonable belief, a concept that has a subjective element of a kind that ordinarily is peculiarly within the knowledge of the accused, and an objective element that must be capable of being measured against the evidence by a tribunal of fact. … The common law principle in question reflects fundamental values as to criminal responsibility. The courts should expect that, if Parliament intends to abrogate that principle, it will make its intention plain by express language or necessary implication. We would, therefore, construe the legislation in the light of the principle of criminal responsibility stated at the outset of these reasons. An honest and reasonable belief that the other party to sexual activity is above the age of 16 years is an answer to a charge of a contravention of s 66C(3). The evidential burden of establishing such a belief is in the first place upon an accused. If that evidential burden is satisfied, then ultimately it is for the prosecution to prove beyond reasonable doubt that the accused did not honestly believe, on reasonable grounds, that the other party was above the age of 16 years. …

1.90 In CTM, Kirby J agreed substantially with the reasons expressed in the joint judgment, and with those of Hayne J. Heydon J found that the defence of ‘honest and reasonable mistake’ was not available for this offence. The appeal was dismissed and the conviction was allowed to stand, even though the majority agreed that the belief, if held, would have entitled the accused to an acquittal, and even though the majority agreed that the trial judge had misdirected the jury on the issue of the burden of proof. Gleeson CJ, and Gummow, Crennan, Kiefel, Kirby and Hayne JJ all found that, as a matter of construction, an honest and reasonable

belief that the girl was aged over 16 would have been a defence. Heydon J was of the opinion that the ‘defence’ was excluded by the statute and therefore the appeal should be dismissed. [page 70] Gleeson CJ, Gummow, Crennan, Kiefel, and Hayne JJ found that the accused had not met the evidentiary burden to raise the issue. Their Honours also held that there was no substantial miscarriage of justice. Even though there had been errors in the trial judge’s directions to the jury, they held the appeal should be dismissed. Kirby J dissented on the final orders and would have allowed the appeal.

CONCLUSION 1.91 In summary: Conduct is criminal when it has been prohibited by the state and there is some punishment attached to it. It is not a moral question but a legal question. Crimes exist only in law. The criminal law serves to protect the community by restraining the behaviour of individuals, but, more importantly, by restraining the state and its agencies (such as the police). Traditionally, criminal law serves to protect our liberties by ensuring that the state punishes only those people who have breached the law, and not those people who are unpopular with the state or public opinion. The courts, to the extent permitted by the legislature, stand between the citizen and the state to ensure that criminal trials are fair and conducted according to law. A person is to be adjudged ‘guilty’ only if the state can

prove the case against him or her ‘beyond reasonable doubt’. Notwithstanding the protections given to accused persons at their trials, much of the decision making in the criminal process is administrative in nature and subject to the exercise of personal discretion, rather than an open, judicial process. Nearly all crimes are made up of fault elements (or mens rea) and physical elements (or actus reus) that must be proved in order to establish that the accused is guilty of an offence. We have seen, however, that not every offence has a necessary ‘fault element’. Offences of strict and absolute liability are established by proof of the physical elements alone.

DISCUSSION QUESTIONS 1.92 Answer the following questions to review the material covered in this chapter. 1.

It may be possible to give a definition of the subject matter of various areas of law: for example, the law of contract is about the enforcement of agreements, the law of torts is about obligations with respect to others. What is the criminal law ‘about’? Is there any limit on what can be made a crime?

2.

What do you think should be the primary aim of the criminal law? Why? Do you agree with mandatory sentencing? Why or why not? Should there be discretion in the criminal law? Why or why not? [page 71]

3.

Assume you are a police officer on duty when you are called to a shop to deal with a person detained there

for shoplifting. You find the person there and make inquiries and are satisfied that he or she has committed the offence. How would you proceed if the person is: (a) a 12-year-old girl who attends the local private school and whose parents have been called, as has the head of the school? (b) a 24-year-old man with tattoos and a scruffy appearance? (c) a 17-year-old Indigenous woman with no fixed address? (d) an 18-year-old unemployed man who was found taking disposable nappies for his baby? (e) a 15-year-old youth who was seen in company with other boys who ‘got away’ from the store detective? (f) a wealthy, menopausal 55-year-old woman with money in her purse who cries when confronted and who has never done this sort of thing before? What difference, if any, do these different circumstances make? Would it be better if there were no discretion? Why or why not? 4.

Could you, or should you, act for a person you thought was guilty of a crime? Could you, or should you, act to prosecute a person you thought was innocent of the alleged crime? Why or why not?

5.

Consider the following statutory provisions. In each case identify the elements of these offences; that is, what the Crown must prove in order to obtain a conviction. Identify the physical elements and the necessary fault elements (if any) for each offence.

Crimes Act 1900 (NSW) 33A Discharging firearm etc with intent (1) Intent to cause grievous bodily harm A person who: (a) discharges any firearm or other loaded arms, or (b) attempts to discharge any firearm or other loaded arms, with intent to cause grievous bodily harm to any person is guilty of an offence. Maximum penalty: Imprisonment for 25 years. Road Transport (Safety and Traffic Management) Act 1999 (NSW) 12 Use or attempted use of a vehicle under the influence of alcohol or any other drug (1) A person must not, while under the influence of alcohol or any other drug: (a) drive a vehicle, or (b) occupy the driving seat of a vehicle and attempt to put the vehicle in motion, or (c) being the holder of a driver licence (other than a provisional licence or a learner licence), occupy the seat in or on a motor vehicle next to a holder of a learner licence who is driving the motor vehicle.

[page 72] Occupational Health and Safety Act 2000 (NSW) 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer.

6.

What is the difference between a crime of strict liability and a crime of absolute liability? (Hint: the answer lies in the defences available.) What factors should we look at to help determine whether parliament intended to create an offence of strict or absolute liability? Do you think speeding is an offence of strict/absolute liability or is it an offence where the Crown would need to prove fault element? What about murder?

1

A Goldsmith, M Israel and K Daly (eds), Crime and Justice: A Guide to Criminology, 3rd ed, Law Book Co, Sydney, 2006, p 9.

2

S Bronitt and B McSherry, Principles of Criminal Law, 2nd ed, Law Book Co, Sydney, 2005, p 5.

3

A Goldsmith, M Israel and K Daly (eds), Crime and Justice: A Guide to Criminology, 3rd ed, Law Book Co, Sydney, 2006, p 9.

4

United States ex rel Marcus v Hess 317 US 537 (1943) at 554.

5

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 at [29] per Kirby J citing Customs Act 1901 (Cth) s 247.

6

Hon Murray Gleeson, The Rule of Law and the Constitution, ABC Books, Sydney, 2000, p 4.

7

Hon Murray Gleeson, The Rule of Law and the Constitution, ABC Books, Sydney, 2000, p 2.

8

Alfred Blumstein et al (eds), Criminal Careers and ‘Career Criminals’, two volumes, National Academy Press, Washington DC, 1986.

9

Bureau of Crime Statistics and Research (NSW), Recorded Crime Statistics, 1996–2005, available at .

10

Reference re Secession of Quebec [1998] 2 SCR 257–258, cited in Hon Murray Gleeson, The Rule of Law and the Constitution, ABC Books, Sydney, 2000, p 4.

11

Available at .

12

See the Human Rights Act 2004 (ACT) and Charter of Human Rights Act 2006 (Vic).

13

Human Rights Act 2004 (ACT) s 32; Charter of Human Rights Act 2006 (Vic) s 36.

14

Human Rights Act 2004 (ACT) s 22; Charter of Human Rights Act 2006 (Vic) s 25.

15

Nicholas Cowdery QC, Getting Justice Wrong, Allen and Unwin, Sydney, 2001, p 4.

16

Office of the Director of Public Prosecutions, Prosecution Guidelines, available at .

17

Model Criminal Code Officers Committee, Model Criminal Code Report, Chapters 1 and 2: General Principles of Criminal Responsibility, Criminal Law Officers Committee of the Standing Committee of Attorneys-General, December 1992.

[page 73]

2 Murder INTRODUCTION 2.1 This is the first of three chapters dealing with homicide: the unlawful killing of a human being. An unlawful killing may be either murder or manslaughter. As shall be seen, murder is a common law offence that has been modified by statute. Manslaughter is also a common law offence and may be further divided into voluntary and involuntary manslaughter. Voluntary manslaughter occurs where all the elements of murder are present, but the accused is able to rely on a partial defence reducing the offence to manslaughter. Those partial defences are now provided by statute and are extreme provocation, substantial impairment due to abnormality of mind, and excessive self-defence. The separate offence of infanticide is effectively a further statutory partial defence (see 3.43–3.45). Voluntary manslaughter is the subject of Chapter 3. Involuntary manslaughter arises where there is an unlawful killing in circumstances that do not amount to murder because of the absence of the necessary fault element for murder. This category of manslaughter is provided by the common law and will be discussed in Chapter 4. There is a further statutory form of homicide not being murder or

manslaughter. This is contained in s 25A of the Crimes Act 1900 (NSW) (‘the Crimes Act’): assault causing death. It will also be dealt with in Chapter 4 as it is similar to involuntary manslaughter. This chapter deals with the law of murder. The chapter also demonstrates the practical need to establish all the elements of a crime before it can be said that a person is guilty of a particular offence. The relationship between murder and the different types of manslaughter is shown in Flow Chart 2-1. You will see that the physical elements for murder and manslaughter are the same. In each case the Crown must prove an act or culpable omission of the accused that causes the death of the deceased. The difference between murder and manslaughter lies in the fault elements. [page 74]

FLOW CHART 2-1: MURDER AND MANSLAUGHTER

[page 75]

MURDER (Chapter 2)

[page 76]

VOLUNTARY MANSLAUGHTER (Chapter 3)

[page 77]

INVOLUNTARY MANSLAUGHTER (Chapter 4)

[page 78]

MCCOC ON MURDER AND MANSLAUGHTER 2.2 The Model Criminal Code Officers Committee

(MCCOC) (see further at 1.67) said the following about murder and manslaughter: MCCOC, Fatal Offences Against the Person Model Criminal Code, Discussion Paper, Chapter 5, June 1998, pp 1–4 All Australian jurisdictions distinguish between various forms of fatal offences. The primary distinction is between murder and manslaughter. While murder is reserved for what are, morally, the most serious cases of homicide, manslaughter has always been a residual category, and as a consequence remains a notoriously illdefined offence. Cases of manslaughter run the gamut from causing death by negligence, to cases of intentional killing involving mitigating circumstances such as provocation or diminished responsibility. … Murder and manslaughter are supplemented, in most Australian jurisdictions, by other offences such as infanticide and dangerous driving causing death. Unlike non-fatal offences, it is not possible to structure fatal offences using the extent of the harm inflicted by the defendant as a basis. This is obviously because in the case of fatal offences, the harm is always the same, namely, death. Rather, it is the defendant’s state of mind at the time he or she causes the death that determines the culpability of the defendant. A guilty state of mind is the fundamental criterion of fault that the community understands and accepts as requiring the intervention of the criminal justice system. In short a requirement for a guilty mind avoids “the public scandal of convicting on a serious charge persons who are in no way blameworthy”. The first principle, therefore, is that merely causing the death of another human being without more will not amount to culpable homicide; serious blameworthiness as denoted by the defendant’s guilty state of mind is further required. … Under present law, liability to conviction for murder is not limited to cases of intentional killing. The scope of the crime extends to include cases in which death resulted from acts committed recklessly, with knowledge that death or serious injury might result. The precise location of the borderline between the

offences of murder and manslaughter varies among Australian jurisdictions. In marginal cases the distinction is often the subject of appeals against conviction. The difference between murder and manslaughter may be exceedingly fine. Individuals who take conscious risks with the lives of others are liable to conviction for murder, unless the risk was justifiable. However, the degree of risk is crucial. Death resulting from the defendant’s dangerous conduct is only murder if it was done in realisation that death was a probable consequence. Conduct undertaken in the knowledge that death was merely a possible consequence makes the offender guilty of manslaughter, but not murder, in most, if not all, Australian jurisdictions. … Uncertainty on the question where to draw the line between murder and manslaughter has prompted proposals to abolish the distinction so as to merge murder and manslaughter into a single offence of unlawful homicide. The most common reason advanced in favour of the suggestion is the promise of clarity and avoidance of unworkable distinctions in homicide law. Despite the promise of increased clarity, the proposal has won few adherents. Law reform bodies, in Australia and in other jurisdictions with criminal laws resembling our own, have rejected proposals for a single, inclusive offence of unlawful homicide. …

[page 79]

MURDER IN NEW SOUTH WALES 2.3 In New South Wales the offence of murder is the subject of statutory definition. Section 18 of the Crimes Act states: 18 Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to

commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only.

2.4 Note that s 18 does not make murder a crime. As has already been noted, murder is an offence at common law. The purpose of s 18 is to define that element of common law murder known as ‘malice aforethought’: that is, the mental element of murder. The history of s 18 and the relationship between murder and manslaughter under the Crimes Act were extensively considered by the High Court in R v Lavender (2005) 222 CLR 67; 218 ALR 521.

ELEMENTS OF MURDER 2.5 The elements of murder in New South Wales are to be found in the definition in s 18 (see 2.3). Before a person may be convicted of murder the Crown must establish the following elements: 1.

an act or omission of the accused,

2.

that caused,

3.

the death charged,

4.

where the act was done or the omission was made: (a) with reckless indifference to human life, or

(b) with intent to kill, or (c) with intent to inflict grievous bodily harm, or (d) during or immediately after the commission of an offence that carries a punishment of imprisonment for 25 years or life. [page 80]

Physical elements Act or omission 2.6 In order to commit murder, there must be a voluntary act or culpable omission (see 2.8) of the accused that causes the death of the deceased. Section 18(2)(b) provides that there is no crime if death occurs as a result of ‘misfortune only’. The Queensland Criminal Code s 23(1) expresses a similar rule, but with perhaps greater clarity. The Code says that a person is not criminally responsible for ‘(a) an act or omission that occurs independently of the exercise of the person’s will; or (b) an event that occurs by accident’. 2.7 In most murder cases the Crown will be able to point to a clearly identified ‘act’ that it claims caused the death charged; that is, it will be able to identify that the accused shot, stabbed, smothered or in some other way killed the deceased. An accused has a clear interest in trying to have the Crown specify with great particularity the character of the ‘act of the accused’ relied upon, because, the more particular it is, the harder it may be for the Crown to show either that the alleged act was voluntary or that it caused the death charged. This issue appears to arise most often in cases where the deceased has been shot and the accused argues that he or she accidentally or involuntarily pulled the trigger, perhaps because of a reflex action when the deceased jerked (Ryan v R (1967) 121 CLR 205) or lunged at the accused (R v Katarzynski

[2005] NSWCCA 72). In these cases the accused wants to argue that it was the pulling of the trigger that caused the gun to discharge and ultimately caused the death of the deceased, but that pulling the trigger was not his or her voluntary act. Alternatively, the accused may argue, if the act relied upon by the Crown is presenting or pointing the gun at the deceased, that is not what caused the death charged. The problem is demonstrated in the following extract from Katarzynski. R v Katarzynski [2005] NSWCCA 72 NSW Court of Criminal Appeal [The appellant and the deceased had been involved in an altercation at a hotel where it was agreed it was the deceased who had offered the first violence. Later the appellant left, followed by the deceased. There was a dispute as to whether or not the appellant ‘lured’ the deceased to come over to him, but in any event, the appellant produced a gun that he had bought earlier in the evening and shot the deceased three times.] Sully J: [His Honour set out the facts as stated by the trial judge] … The offender’s version given both to the police and in evidence at the trial was that, after he was assaulted by the deceased in the gaming room, he decided to walk to his home a short distance from the hotel. This was despite the fact that he had driven his brother’s motor vehicle to the hotel and that his brother had ridden a motorbike there intending to exchange the bike for the motor vehicle. The offender’s version was that after he rounded the corner of the hotel and walked down the Hume Highway for a short distance towards his home, he realised that his brother was not with him and was still at the hotel. Being concerned for his brother’s safety, he turned around to return to the hotel. He was then suddenly confronted by the deceased a few paces from the corner of [page 81]

the hotel. The offender said that he then drew from his waist belt a loaded revolver, which he had purchased earlier that night. At the same time he told the deceased to “fuck off”. The offender’s evidence was that he was holding the weapon at about waist height, pointed across his body and towards the ground. The deceased then lunged towards him with his arms outstretched. The offender moved backwards and, at the same time, he flinched causing the gun to discharge. He told both the police and the jury that he did not mean to shoot the weapon and certainly had no intention of using it to injure the deceased. Three shots were fired each of which struck the deceased in the torso. One of the bullets entered the deceased’s back and penetrated his heart causing his death. Neither of the other two shots were life threatening, one passing through the deceased’s genital area and the other entered his shoulder lodging beneath the opposite armpit. Dr. Little who performed the autopsy on the deceased was unable to indicate the order in which the three injuries were inflicted. However, it seems to me that the most likely scenario is that the first shot fired was that which entered the front of the deceased in the area of his genitals and that the other two shots were fired rapidly thereafter, entering the deceased’s body as he turned away from the offender and crouched over as a result of the first injury. If this is so it is likely that it was the third shot fired that killed the deceased. [His Honour continued:] … Conviction Appeal: Ground 1 6 The Ground is: The trial Judge erred in his directions on voluntariness, causation, murder by reckless indifference to human life, self-defence and

excessive self-defence where the identified basis for primary liability was reckless indifference to human life. 7 This Ground conflates what are in fact four separate topics about each of which present complaint is made in connection with the learned trial Judge’s directions. It is necessary to look separately at each component part of the Ground. Causation 8 It is appropriate to begin the discussion by citing some relevant authorities. 9 In Royall v The Queen [1990] 172 CLR [378], Mason CJ made the following observations upon the topic of causation, albeit the particular case was not a shooting case: Ordinarily there is no occasion for a trial judge to spend much time on the identification of the act causing death, but there is a “logical and practical necessity to isolate that act, for it is of it, and it alone, that one or more of the several specified conditions or concomitants must be predicated if the terms of s. 18 are to be satisfied”, to repeat the words of Barwick CJ in Ryan v The Queen. In Ryan the trial judge’s directions were deficient in that they failed to isolate the particular act or acts which the jury might identify as the cause of death. In that case there was room for argument about what was the act which caused death. Different considerations arose for determination in ascertaining whether Ryan’s state of mind satisfied the requirements of s. 18, depending upon which act was identified as the cause of death. The Crown case was that Ryan went to rob a service station. While he had his finger on the trigger of a loaded, cocked gun pointed at the deceased’s back, with his other hand he tried to find a cord in his pocket. The deceased made a sudden movement, Ryan stepped back and the gun discharged, killing the deceased. If pressing the trigger was identified as the act causing death, the question was whether Ryan willed that act and intended to kill or inflict grievous bodily harm or whether it was an unwilled reflex movement. If, however, presentation of the gun was identified as the act causing death, the question was

whether Ryan knew that in the circumstances the involuntary discharge of the gun was probable: see per Barwick CJ; and note Reg v Crabbe (where the test applied by Barwick CJ in Ryan was discarded in favour of that just stated). Thus the case was one in which identification of the act causing death required “specific and close consideration”. Yet the directions given to the jury “appeared at times to treat the [page 82] whole conduct of the applicant from the inception of his exploit as the act causing death”, without descending to particularity: see, generally, per Barwick CJ. In Ryan, the Chief Justice pointed out that “the choice of the act causing death is not for the presiding judge or for the Court of Criminal Appeal: it is essentially a matter for the jury under proper direction”. So the question on this aspect of the present case is whether the trial judge adequately directed the jury as to the particular acts any one of which they might regard as the cause of the deceased’s death. In this respect there was, in my view, just as there was in Ryan, a need for the trial judge to give specific and close attention to the identification of the various acts which, on the Crown case, might have been the cause of death. [172 CLR 378 at 385, 386] 10 In Murray v The Queen [2002] 211 CLR 193, five Justices of the High Court of Australia discussed in four separate judgments the topic of causation in the particular context of a death by shooting. The case there in point was not governed, as the present appellant’s case is governed, by the provisions of the Crimes Act 1900 (NSW); but was governed, rather, by the provisions of the Queensland Criminal Code, section 23 of which provided that a person was not criminally responsible for (a) an act or omission that occurred independently of the exercise of the party’s will; or (b) an event that occurred by accident. 11 Four members of the Court, Gaudron, Gummow, Hayne and Callinan JJ, decided the appeal upon the basis that the trial Judge

had misdirected the jury on the onus of proof. Kirby J was of the contrary opinion on that particular point. Two members of the Court, Kirby and Callinan JJ, were of the opinion that the trial Judge had erred in not having directed the jury on the topic of unwilled acts as contemplated by paragraph (a), paraphrased above, of section 23 of the Code. Gaudron, Gummow and Hayne JJ were of the contrary opinion on that particular point. 12 Mr. Murray, like the present appellant, had presented a loaded firearm at his victim, allegedly with the sole intention of frightening the victim; but denied having deliberately pulled the trigger. 13 Gaudron J reviewed, inter alia, Ryan (supra), expressly adopting as “legally and logically correct” the analysis made by Barwick CJ in that earlier case. Her Honour thought that it had been incumbent upon the trial Judge to instruct the jury, in appropriate terms, that the jury must decide “… whether the prosecution had excluded beyond reasonable doubt the possibility that the gun had discharged without pressure being applied to the trigger and, also, the possibility that it was discharged by an unwilled reflex or automatic motor action”. Her Honour accepted, however, that the charge to the jury had dealt sufficiently with those points. [211 CLR at pp 199–201 passim] 14 Gummow and Hayne JJ delivered a joint judgment. Their Honours discussed at some length, and as follows, the difficulties that can often beset the identification, in a case of death by shooting, of the actual death-causing act: Consideration of the several cases in this Court in which questions about unwilled acts have been examined reveal some of the difficulties that, if not implicit in the concept of unwilled acts, at least are likely to arise in dealing with that concept. Prominent among those difficulties is understanding what is the relevant “act”, or in this case, the relevant “death-causing act”. Although it may now be regarded as clear that in this case, as in Falconer, the death-causing act was the discharging of the loaded shotgun, why is that the relevant “act” and what exactly does it encompass? In deciding what is the relevant act, it is important to avoid an overly refined analysis. The more narrowly

defined is that “act”, the more likely it is that there will be thought to be some question about whether the accused willed that act. Or, to put the same point another way, the more precise the identification of a particular physical movement as the “death-causing act”, the more likely it is that it will be harder to discern a conscious decision by the actor to make that precise and particular physical movement. As HLA Hart [page 83] pointed out more than forty years ago, a theory which splits an ordinary action into three constituents — a desire for muscular contractions, followed by the contractions, followed by foreseen consequences — is a theory based on a division quite at variance with ordinary experience and the way in which someone’s own actions appear to that person. As Hart said, “The simple but important truth is that when we deliberate and think about actions, we do so not in terms of muscular movements but in the ordinary terminology of actions.” The difficulty of over-refinement can be exemplified by comparison of this case with the facts in Ryan. In Ryan, Windeyer J characterised what had happened as Ryan pressing the trigger “in immediate response to a sudden threat or apprehension of danger”. In this case, the appellant said that the weapon discharged immediately upon his being struck by something the deceased threw at him. There seems little, if any, relevant distinction between the two descriptions. Of both it may be said that: The latent time [between threat, or assault, and firing the weapon] was in each case no doubt barely appreciable, and what was done might not have been done had the actor had time to think. But to identify the “act” as confined to that which was the immediate physical movement, a dorsiflexion of the finger, made in response to a perceived threat, or in this case the alleged blow, so confines the time for choice by

the actor as to invite the conclusion that the actor did the particular act without thought, and therefore without willing it. That is altogether too narrow a view of what is the relevant “act” which, in this case, would divorce the contraction of the finger from the admittedly deliberate pointing of a loaded and cocked weapon at the deceased and its discharge. So to confine the understanding of the relevant “act” would be to adopt an approach that overrefines the application of the criminal law, introducing nice distinctions that are not based upon substantial differences. That is why the “act” to which s 23(1) [of the Queensland Criminal Code] refers is not restricted to the appellant’s contracting his trigger finger. But what is encompassed by saying that it is the appellant’s discharging the loaded gun that must be willed? It now seems clear from Falconer that the “element of intention” which Windeyer J (in both Mamote-Kulang v The Queen and Timbu Kolian v The Queen) said should be added to the notion of will may not always be helpful, but there is much force in the views expressed by Windeyer J in Ryan to the effect that the language of “will” and “intellect”, “unintentional” and “inadvertent”, is necessarily imprecise. As Barwick CJ said in Timbu Kolian, “we lack a sufficiently flexible and at the same time precise vocabulary in this area of discourse”. In the end, it must be accepted that the distinctions with which the cases grapple may be founded upon overly simple understandings of the way in which human beings act which are understandings that are not easily applied to cases at the margin. In a case like the present, we do not think it useful to examine the problem by reference to presumptions that an act done by a person who is apparently conscious is willed or done voluntarily. Approaching the problem in that way may reveal which party must raise the issue to have it considered — the so-called evidentiary burden of proof. It may even help the tribunal of fact to decide what inferences can, or should, be drawn from evidence that

the accused was conscious at the time of the act in question. But it is not an approach which tells the tribunal of fact how or when that tribunal may reach a conclusion contrary to the starting point provided by the presumption. Rather than adopting approaches such as these, it is necessary to focus upon the relevant “act”. Once it is recognised that the act is the act of discharging the loaded shotgun it can be seen that the act comprises a number of movements by the appellant that can be identified as separate movements. He loaded the gun; he cocked it; he presented it; he fired it. Some of these steps may be steps to which the appellant would say that he had turned his mind; others may not have been accompanied by conscious thought. It is by no means unknown for someone to carry out a task (like, e.g. loading a weapon) without thinking about it, if it is a task the person has undertaken repeatedly. In some circumstances, the trained marksman may respond to a threat by firing at the source of that threat as soon as the threat is perceived, and may do so without hesitating to think. But in neither example could it be said that the act (of loading or firing the weapon) was an unwilled act. Similarly, once it is recognised that the relevant act in this case is the act of discharging the loaded [page 84] shotgun, it can be seen that whether or not particular elements of that composite set of movements (load, cock, present, fire) were the subject of conscious consideration by the appellant, there is no basis for concluding that the set of movements, taken as a whole, was not willed. There was no suggestion of disease or natural mental infirmity; there was no suggestion of sleep walking, epilepsy, concussion, hypoglycaemia or dissociative state. [211 CLR at 209 through 211 [53]] 15 Kirby J dealt briefly and as follows with the topic of causation: I agree with Gaudron J that the identification of what was

the relevant “act” and whether it was willed or not were questions for the jury. They were not questions of law for the judge. Even if the final “act” was a reflex action, it only took on its fatal character because of earlier acts of the appellant dangerous to human life. Thus, I agree with Gaudron J that if the jury came to the conclusion that the ultimate “act” that led to the depression of the trigger of the loaded gun pointed at the deceased could be described as a “reflex” act, it was still a question for the jury whether that act was properly to be viewed as having occurred “independently of the exercise of the [appellant’s] will”. [211 CLR at 222 [89]] 16 Callinan J, the remaining member of the Court, dealt as follows with that topic: There will, obviously, be difficulty from time to time in identifying, for the purposes of s 23(1)(a), the relevant act. Equally, from time to time there will be difficulty in determining whether the evidence provides a sufficient basis for a direction as to either limb of s 23(1). But such difficulties do not relieve a trial judge from the necessity of so directing, when required, and, as to the first of them, of identifying, that is to say, effectively isolating what on the evidence is capable of being regarded as the act causing death and as the unwilled act. Everything that has relevantly occurred before it, including the earlier relations between the victim and the accused, and the latter’s acts in placing himself in such a position as to give the “act” the capacity to inflict harm, will have much to say about its true nature, that is, whether it was willed or not, but those earlier acts will generally not constitute the “act” itself, or be a constituent part of it. It will be, however, for the jury so instructed, in reaching their verdict of guilty or not guilty, to determine whether in fact the prosecutor has negatived that the death resulted from an unwilled act (or accident). A defence under s 23(1)(a) does not depend upon proof of, or the possibility of automatism or the like. It is available if the prosecution is unable to prove that the act

was not willed, whether the absence of will can be traced to a condition which can be satisfactorily described in medical or psychological terms, or whether it was simply an act neither impelled by the mind nor which the mind endorsed immediately before, or at the time of its occurrence. There may be some cases in which a sequence of acts is so interconnected, or that the first, or an intermediate act in the sequence, has so inevitable an outcome that to regard the ultimate act as the “act” for the purposes of s 23(1)(a) would be artificial and unrealistic, but such cases will be rare. The jury in this case would not have been obliged so to regard this case. Here the relevant act was, as the appellant submitted, identifiable, the discharge of the gun. Everything leading up to that point might have made it unlikely that it occurred as an unwilled act, but as there was evidence that it was, an obligation to give a direction about it by reference to s 23(1)(a) did arise. [211 CLR 235 [148] through 236 [150]] 17 It seems to me that the foregoing authorities distinguish, in a case of the present kind, between a finding of fact that identifies a death-causing act; and a discrete finding of fact that characterises, as having been either willed or unwilled, the death-causing act that has been so identified. The first of those two discrete findings of fact deals with the topic that the law calls ‘causation’. The second of the two findings deals with the topic that the law calls ‘voluntariness’. 18 In the present case, therefore, it seems to me that the trial Judge was required by law to make plain to the jury, on the topic of causation, these things: [1] That the Crown must prove beyond reasonable doubt some act or acts of the appellant that caused the death of the victim. [2] That the identification of any such act was a matter of fact for the jury alone. [page 85] [3] That the jury might so identify any act that the jury thought was established beyond reasonable doubt on the whole of the

evidence at trial. [4] That the evidence left open for the consideration of the jury two obvious practical approaches, mainly: (a) to identify as the relevant act the firing in quick succession and at close range of three pistol shots, one of them lethal, into the body of the victim; or (b) to identify as the relevant act a sequence of things done by the appellant from the moment at which he pulled a pistol known by him to be loaded out of his pants; to the moment when he fired those three successive shots. 19 I would say at once that I should have thought that on the facts of the appellant’s case any normal body of twelve persons would have regarded it as a matter of common sense that the actual death-causing act was the option [4](a) above; and that it was when proceeding to the next step of characterising that act as having been either willed or unwilled, that it would have been entirely appropriate to have had regard to the continuum of conduct commencing with the alleged luring of the victim by the appellant to the location of the shooting. 20 At the appellant’s trial the jury was given written as well as oral directions of law. The jury was instructed in writing that the Crown had to prove beyond reasonable doubt, and among other things, that it had been a deliberate act of the appellant that had caused the death of the victim. That direction was amplified by the following written directions: A deliberate act causing death. The act causing death must be the deliberate act of the accused. An act is not deliberate if it was not voluntary that is not willed by the accused. A spontaneous unintended reflex action is not itself a voluntary act. However, what act of the accused caused the death of the deceased is a matter of fact to be considered in light of all the conduct of the accused that led up to the discharge of the bullet which penetrated the heart of the deceased and caused his death. This is to be considered in a common sense way taking into account all that the accused did in discharging the gun. It

includes, but is not necessarily restricted to, the pulling of the trigger. 21 In the oral directions, the trial Judge instructed the jury at an early point in the summing-up: Now there is little doubt that the act, which caused the death of the deceased, was the act of the accused. He discharged the gun and although he can only recall two shots, there seems to be no doubt that he fired three and by all accounts one immediately after the other. But a question arises on the accused’s evidence whether the act causing death was deliberate that is whether he intentionally fired the weapon and in particular whether he intentionally fired the shot that penetrated the deceased’s heart and killed him. 22 Very shortly thereafter, and having given some oral directions about voluntariness, his Honour gave these directions: But just what was the act of the accused which caused the death of the deceased is a matter of fact for you to determine in all the circumstances in which the gun was discharged. You do not necessarily isolate the pulling of the trigger as a separate and distinct act taken out of context and say is that the act which caused the death of the deceased and then ask whether there is any reasonable possibility that was not a deliberate act of the accused. In the present case you know that the accused deliberately took possession of what he knew to be a loaded gun. He says he got it earlier that night when he purchased it from a stranger. He checked that it had bullets in it. He was unaware of whether it had a safety catch or not. He deliberately placed it down the front of his trousers where it remained until he says he was confronted by the deceased outside the hotel. He deliberately withdrew the gun from the front of his pants when he saw the deceased and deliberately presented it to the accused in that he held it in front of him intending, it seems, to use it at least to scare off the deceased. Finally you would consider that three shots were fired each

hitting the torso of the deceased. On those facts and that scenario it is for you to determine what, in that [page 86] context and considering all his actions, was the act of the accused which caused the death of the deceased and whether it was deliberate. In the circumstances of this case where the accused has deliberately presented a loaded revolver to the deceased in a situation of a possible attack upon him, if you found that the pressing of the trigger as a response to a sudden threat or apprehension of danger was no more than a probable and foreseeable consequence of deliberately presenting a loaded weapon to the deceased you could determine that the discharge of the gun was a voluntary or deliberate act of the accused notwithstanding that he may not have meant to fire it. Of course we do not know very much about the gun: whether it had a safety catch, whether it was prone to accidental discharge, or the force necessary to pull the trigger. We know that it was, according to the accused, a revolver, and it seems from all the evidence that the shots were fired off in rapid succession. So it is not a case of the weapon having to be reloaded or re-cocked each time. On the other hand according to the accused, the gun was in his waist belt for some considerable time without discharging even though the accused apparently played pool with it there and at one stage was violently pushed or head-butted by the deceased forcing him against the wall of the gaming room. So you look at all this material and decide what was the act of the accused which caused the death of the deceased: was it merely the unintentional pulling of the trigger or was it a more complex and composite act involving a number of steps deliberately taken by the accused which ended with the sudden and unexpected discharge or, on the Crown’s version, a deliberate firing of the weapon? If at the end of the day you find that there

exists a reasonable possibility that the act which caused the death of the deceased was not deliberate but was unintended and involuntary such as a reflex action, then the accused is not guilty of murder. Of course the issue only arises if you find that there is a reasonable possibility that the accused’s version is true. 23 Later still, and after directing the jury on the topic of murder by reckless indifference to human life, his Honour touched one final time upon the topic of causation, saying: Again you are concerned with the state of mind that the accused had at the time he committed the act causing death. Again it is for you to determine what is the act causing death. For example, as I said, if you found that while the deceased was approaching, the accused deliberately pulled out a loaded gun foreseeing that further violence by the deceased would occur and that in such a situation the gun would probably discharge causing the death of the deceased, then subject to selfdefence and provocation, the accused would be guilty of murder even though he never intended to cause the deceased’s death and even though when the gun discharged he was not intending to fire it. You should see then how important it is to determine what the act of the accused causing the death is, whether that act was deliberate and what was the state of mind of the accused at that time. 24 The written submissions of learned Senior Counsel for the appellant (who was not counsel at trial) make the following complaints about the foregoing directions: The first point to be made, then, is that his Honour did not deal with causation conformably with authority on the subject and, effectively, left open the possibility of the pulling of the trigger as the voluntary act causing death even if the pulling of the trigger was, in fact, a “reflex” action. This opened the way for a conviction for murder based on the brandishing of the gun.

In any event, these directions gave no or insufficient attention to the role, or otherwise, in causation, of the acts of the deceased in bringing about the discharge of the firearm, this based here on the appellant’s account outlined above. 25 I do not agree with those submissions. It is, I apprehend, a fair comment that the summing-up does not deal in a precisely discrete way with the separate topics of causation and voluntariness; but that is not a fatal flaw in the summing-up provided only that what was in fact put to the jury about causation was sufficient to bring the minds of the jurors to the issues that I have outlined at paragraph 17 above. In my opinion, [page 87] the directions given in fact on the topic of causation satisfy that proviso. There was at trial no submission to the contrary. Voluntariness 26 The relevant written directions have been quoted earlier herein: see paragraph 19. 27 The relevant oral instructions began thus: In effect what the accused seems to be saying is that although he intentionally removed the gun from under the front of his pants and intentionally presented it towards the deceased intending at least to scare him away, he did not deliberately point it at him or pull the trigger. He said that, as a reaction to the deceased lunging towards him, he flinched automatically and the gun discharged. In effect he is saying that the pulling of the trigger was not a deliberate act of him; it was involuntary without any thought at all let alone the intention of firing the weapon. Well if there is a real possibility that the shot that killed the deceased was discharged by an involuntary, unintended act of the accused then it was not a deliberate act of him. In other words he did not deliberately discharge the weapon and he cannot be guilty of murder. An involuntary reflex action is not a deliberate act and cannot by itself be the basis of criminal liability.

28 These directions were followed immediately by the directions that are quoted previously herein and at paragraph 21. 29 Thereafter his Honour said: So you look at all this material and decide what was the act of the accused which caused the death of the deceased: was it merely the unintentional pulling of the trigger or was it a more complex and composite act involving a number of steps deliberately taken by the accused which ended with the sudden and unexpected discharge or, on the Crown’s version, a deliberate firing of the weapon? If at the end of the day you find that there exists a reasonable possibility that the act which caused the death of the deceased was not deliberate but was unintended and involuntary such as a reflex action, then the accused is not guilty of murder. Of course the issue only arises if you find that there is a reasonable possibility that the accused’s version is true. Of course the Crown says that you would reject this version in light of the fact that the accused fired three shots all of which hit the deceased in the torso. Whether the issue arises at all might depend to a large extent upon what other facts you find proved by the evidence. For example if you were satisfied beyond reasonable doubt of the evidence of Mr. Siofele, that is, of the accused beckoning or even whistling from the corner of the hotel then the issue may not arise because a completely different complexion might be placed upon the firing of the weapon than that given to it by the accused. Even if you were satisfied beyond reasonable doubt that the deceased never went around the corner it may follow that you would reject the accused’s account of the manner in which the gun discharged. In such a case you might find that all the actions of the accused were deliberate including the firing of the shot that killed the deceased. 30 I can see no error in these directions. There was at trial no submission to the effect that there was any such error. The directions seem to me, with respect, to put clearly and succinctly the approach that was put by Windeyer J in Ryan (supra) in terms

which I apprehend to stand as good law and to be, if I may respectfully say so, lucid common sense: Words and phrases such as involuntary, unintentional, inadvertent, accidental, unmeditated, unthinking, not deliberate, unwilled and so forth are used by different writers. Their connotations often depend upon their context, and they are used in discussions which seem to drift easily off into psychological questions of consciousness, sanity and insanity and philosophical doctrines of free-will and of events uncontrolled by will. There is a discussion of some aspects of this subject in the American work, Reflex Action, a Study in the History of Physiological Psychology. I mention it, not because I profess any knowledge in this field, but because of the readiness with which the phrase “reflex action” was used [page 88] in the course of the argument as a presumably exculpatory description of the act of the applicant when he pressed the trigger of the firearm. The conduct which caused the death was of course a complex of acts all done by the applicant — loading the rifle, cocking it, presenting it, pressing the trigger. But it was the final act, pressing the trigger of the loaded and levelled rifle, which made the conduct lethal. When this was said to be a reflex action, the word “reflex” was not used strictly in the sense it ordinarily has in neurology as denoting a specific muscular reaction to a particular stimulus of a physical character. The phrase was, as I understood the argument, used to denote rather the probable but unpredictable reaction of a man when startled. He starts. In doing so he may drop something which he is holding, or grasp it more firmly. But assume that the applicant’s act was involuntary, in the sense in which the lexicographers use the word, would that, as a matter of law, absolve him from criminal responsibility for its consequences? I do not think so. I do not think that, for present purposes, such an act bears any true analogy to one done under duress, which, although done by an

exercise of the will, is said to be involuntary because it was compelled. Neither does it, I think, bear any true analogy to an act done in convulsions or an epileptic seizure, which is said to be involuntary because by no exercise of the will could the actor refrain from doing it. Neither does it, I think, bear any true analogy to an act done by a sleep-walker or a person for some other reason rendered unconscious whose action is said to be involuntary because he knew not what he was doing. Such phrases as “reflex action” and “automatic reaction” can, if used imprecisely and unscientifically, be, like “blackout”, mere excuses. They seem to me to have no real application to the case of a fully conscious man who has put himself in a situation in which he has his finger on the trigger of a loaded rifle levelled at another man. If he then presses the trigger in immediate response to a sudden threat or apprehension of danger, as is said to have occurred in this case, his doing so is, it seems to me, a consequence probable and foreseeable of a conscious apprehension of danger, and in that sense a voluntary act. The latent time is no doubt barely appreciable, and what was done might not have been done had the actor had time to think. But is an act to be called involuntary merely because the mind worked quickly and impulsively? I have misgivings in using any language descriptive of psychological processes and phenomena, especially as I doubt whether all those skilled in this field employ their descriptive terms uniformly. Guided however by what has been said in other cases and by writers on criminal law whose works I have read, and especially by the judgments in the House of Lords in Bratty v Attorney-General for Northern Ireland, I have come to the conclusion that if the applicant, being conscious of the situation in which he had put himself, pressed the trigger as a result, however spontaneous, of the man whom he was threatening making some sudden movement, it could not be said that his action was involuntary so as to make the homicide guiltless. The act which caused the death was, it seems to me, using the language of s. 18 of the statute, an act of the accused. The question for the jury was whether it was an

act done by him in such a way as to make the resulting homicide murder. This was the issue submitted to the jury. [121 CLR at 244–246, passim] … [His Honour then proceeded to consider other grounds of appeal. Spigelman CJ and Kirby J (in a separate judgment) agreed with Sully J. Appeal against conviction dismissed.]

Culpable omissions 2.8 Murder can also be committed by omission. In Airedale NHS Trust v Bland [1993] AC 789; [1993] 1 All ER 821, doctors in England were concerned that they would be liable for murder if they withdrew treatment from a young man who had suffered catastrophic and permanent brain damage during a football disaster. They sought a declaration that their proposed course of action would be lawful. In the course of granting the declaration the House of Lords considered whether a person can be criminally responsible for murder by omission. Lord Browne-Wilkinson said (All ER at 880): [page 89] As to the guilty act, or actus reus, the criminal law draws a distinction between the commission of a positive act which causes death and the omission to do an act which would have prevented death. In general an omission to prevent death is not an actus reus and cannot give rise to a conviction for murder. But where the accused was under a duty to the deceased to do the act which he omitted to do, such omission can constitute the actus reus of homicide, either murder (see R v Gibbins (1918) 13 Cr App R 134) or manslaughter (see R v Stone [1977] QB 354; [1977] 2 All ER 341) depending upon the mens rea of the accused.

Lord Mustill said (All ER at 890): The English criminal law, and also it would appear from the cases cited, the law of transatlantic state jurisdictions, draws a

sharp distinction between acts and omissions. If an act resulting in death is done without lawful excuse and with intent to kill it is murder. But an omission to act with the same result and with the same intent is in general no offence at all. So also with lesser crimes. To this general principle there are limited statutory exceptions, irrelevant here. There is also one important general exception at common law, namely that a person may be criminally liable for the consequences of an omission if he stands in such a relation to the victim that he is under a duty to act. Where the result is death the offence will usually be manslaughter, but if the necessary intent is proved it will be murder …

2.9 The leading New South Wales case on liability for omissions is R v Taktak (1988) 14 NSWLR 226, discussed further at 4.14 as part of a consideration of manslaughter by criminal negligence. Taktak confirmed that liability for death caused by omissions arises when the accused has undertaken some duty to care for another. The liability will be murder if the failure to act in the circumstances is accompanied by the necessary fault elements for murder, otherwise it will be manslaughter. The circumstances when killing by omission may amount to murder were explained by Barr J in Taber. R v Taber; R v Styman [2002] NSWSC 1329 NSW Supreme Court [This judgment was delivered by the trial judge, Barr J, after the jury had retired to consider its verdict. The judge had previously made a ruling that the jury should be instructed to consider whether the accused was guilty of murder by omission. The accused had robbed the victim and left her bound and gagged and unable to call for help. One of the accused rang 000 to report the victim’s predicament but the ‘triple 0’ call was not acted upon and she died of dehydration. In giving his reasons for leaving the matter with the jury, Barr J said:] 1 … I made it clear that I proposed to leave to the jury the availability of a verdict of guilty of murder in any accused’s case constituted by an omission to fulfil a legal duty to remove the

deceased from the danger in which she had been put combined with a realisation at any time during the period of omission and ending with the death of the deceased that she would probably die. Now that the jury have retired and there is more time to deal with the matter I wish to record my reasons for leaving murder to the jury in the manner that I have … [page 90] 8 There exist well-recognised categories of circumstances which give rise to a legal duty in one person to act in a particular way towards another, a failure to perform which will render the obligated person liable to be dealt with criminally. Such categories have been listed in a number of cases, for example R v Taktak (1988) 14 NSWLR 226, R v Joukhadar Court of Criminal Appeal, New South Wales, 13 June 1975, unreported, People v Beardsley 113 NW 1128 (1907), R v Lawford (1993) 61 SASR 542. I gratefully adopt the judgment of Yeldham J in R v Taktak at 236–245. 9 There can be no liability for nonfeasance unless there is a legal, as opposed to a moral, duty to act: R v Taktak; R v Joukhadar; People v Beardsley. So an innocent bystander has no legal duty to rescue a drowning man. However, a person may by voluntary conduct convert a moral obligation to a legal one. Examples are R v Gibbins and Proctor (1918) 13 Cr App R 134, where a woman assumed responsibility to care for the child of her de facto husband, R v Nicholls (1874) 13 Cox CC 75, where a woman took on the care of her grandchild. In R v Marriott (1838) 8 Car & P 425 the prisoner, who was convicted of manslaughter on an indictment for murder, had taken an aged and infirm woman and confined her against her will and had not provided her with the food, clothing and medicine she needed to sustain life. 10 In People v Beardsley McAlvay CJ said this at 1129–1130 — The law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter … This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or by contract, and the omission to

perform the duty must be the immediate and direct cause of death … Although the literature upon the subject is quite meager and the cases few, nevertheless the authorities are in harmony as to the relationship which must exist between the parties to create the duty, the omission of which establishes legal responsibility. One authority has briefly and correctly stated the rule, which the prosecution claims should be applied to the case at bar, as follows: “If a person who sustains to another the legal relation of protector, as husband to wife, parent to child, master to seaman etc, knowing such person to be in peril, wilfully and negligently fails to make such reasonable and proper efforts to rescue him as he might have done, without jeopardizing his own life, or the lives of others, he is guilty of manslaughter at least, if by reason of his omission of duty the respondent person dies. So one who from domestic relationship, public duty, voluntary choice or otherwise has the custody and care of a human being, helpless either from imprisonment, infancy, sickness, age, imbecility, or other incapacity of mind or body is bound to execute the charge with proper diligence, and will be held guilty of manslaughter if by culpable negligence he lets the helpless creature die. 11 Dealing with the English cases of R v Nicholls and R v Instan [1893] 1 QB 450, the Chief Justice continued at 1130 — The charge of this nisi prius judge recognizes the principle that a person may voluntarily assume the care of a helpless human being, and, having assumed it, will be held to be under an implied legal duty to care for and protect such person; the duty assumed being that of caretaker and protector to the exclusion of all others. 12 In R v Taktak Yeldham J identified at least four situations where failure to act might constitute breach of a legal duty, namely where a statute imposes a duty to care for another, where one stands in a certain status relationship to another, where one has assumed a contractual duty to care for another and where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid (at 243–244).

13 The facts of R v Taktak were as follows. The appellant was a drug addict who procured for a heroin dealer the services of two prostitutes. He took them to a party held by the dealer. The prostitutes took heroin at the party. Later on, in response to a telephone [page 91] request, the appellant went to certain premises to collect one of the prostitutes. He found her sitting on the floor of a building moaning and unable to speak. He took her by taxi back to his own premises. He realised that she had taken heroin. He tried unsuccessfully to wake her. He did not summon medical help. She failed to recover consciousness and died. Yeldham J concluded at 246 that the critical question was whether there was evidence that the appellant had voluntarily assumed the care of the deceased “and so secluded the helpless person so as to prevent others from rendering aid”. 14 In R v Lawford the Court exemplified at 547–548 situations in which a duty might arise, including this — (vi) where the defendant has himself put a person in danger by a wrongful act, he is probably under a duty not to leave that person in danger. 15 There is a related question, namely whether it is correct or preferable to categorise what caused death as an act followed by an omission or as a continuous act, commencing when the deceased was attacked and ending when she died. Ultimately the Crown submitted that either approach was permissible. … 23 There are two other matters that I must deal with. The first comes from a submission that the omission would lead to liability in manslaughter but not in murder. There is plenty of authority to the effect that an omission to fulfil a duty, if it causes death, may lead either to murder or to manslaughter depending on whether the Crown can prove what is necessary for murder or manslaughter. It would be surprising if it were not so. In R v Conde (1967) 10 Cox CC 547 the two accused withheld food from their child, who died of starvation. The jury were directed that if the accused wilfully withheld necessary food with a wilful determination by withholding sustenance which was requisite to cause death then the accused were guilty of murder but that if they had the means to

supply necessaries the want of which led to the death of the deceased and that they negligently though not wilfully withheld food which would have sustained life that would amount to the crime of manslaughter. 24 R v Gibbins and Proctor was a case based on the withholding of essential food from a child, who died. Murder and manslaughter were left to the jury and the conviction was for murder. 25 In R v Lowe (1850) 3 CAR & K 123 Lord Campbell CJ said at 124 that a man may by neglect of duty render himself liable to be convicted of manslaughter or even of murder. 26 In R v Shepherd (1861) Le & Ca 3 147 at 155 Erle CJ said that the cases where the person whose death is caused has been brought into circumstances where he cannot help himself, as by imprisonment by the act of the party charged, are distinguishable from other cases (which would lead to manslaughter). 27 In R v Marriott it was held that a verdict of guilty of murder was available if the accused contemplated death whereas it would be manslaughter if death were occasioned by negligence. [Following appeals and consequent further proceedings, all three accused finally received convictions for manslaughter. See (2007) 170 A Crim R 427.]

Causation Intervening acts and events 2.10 As with identifying what ‘act or omission’ of the accused is the relevant act, the question of causation, that is, whether the act or omission caused the death, [page 92] is usually straightforward. It becomes complex when an event, such as the action or omission of the deceased or another person (for example, a medical practitioner) comes between the act of the accused and the death, and the court

has to decide whether it was the accused’s act or an intervening event that caused the death. Royall v R (1991) 172 CLR 378; 100 ALR 669 High Court of Australia [The appellant had been convicted of the murder of Kelly Healey. There was evidence of a struggle in the flat they had been sharing. The appellant had argued at his trial that he had not caused the death of the deceased. He claimed that he forced his way into the bathroom because of concerns for her safety and that, as he entered the room, she was seen to jump out the window. She died as a result of injuries she suffered in the fall.] Deane and Dawson JJ: The applicant was convicted of the murder of Kelly Healey. The deceased fell six floors to her death from the bathroom window of a flat in Kings Cross on 16 November 1986. When the police arrived at the scene, they found the applicant sitting sobbing on the roadway beside the body of the deceased. For four months before her death the applicant had shared the flat with the deceased. The deceased’s fall followed an argument between the deceased and the applicant. For some days the deceased had been staying with a friend and had discussed with her the prospect of living with her permanently. During this time the deceased and the applicant quarrelled. The deceased returned to the flat late on Saturday night, 15 November 1986, and cleaned it up. In the early hours of Sunday morning the applicant arrived home, having been drinking beer since 9 o’clock on Saturday evening. He admitted that a quarrel arose between the deceased and himself. He said that he ‘backhanded’ her and punched her twice in the face and in the nose. He admitted that he grabbed her by the hair at one stage and shook her. Photographs showed that the deceased had sustained significant facial injuries. It appears that the applicant had held the deceased around the throat with one hand leaving bruises on her neck and that while he was doing that he slapped and punched her, causing the dislocation of her nose and considerable bleeding. There was a cut to one of the deceased’s eyes and cuts to her lips which were

both internal and external. Clearly there had been considerable violence. Blood was found in a number of places in the bed-sitting room: on the bedclothes, on clothing, on the video, on walls and on the refrigerator door. The television set had been knocked over on to the floor and there was blood on it. The deceased went into the bathroom, locked the door, undressed and began to shower. It appears that the applicant and the deceased continued to shout at one another. After a short time, estimated by the applicant to be five, ten or fifteen minutes, the applicant tried to force the lock on the bathroom door with a large clasp knife. The applicant also banged on the door with his arm. It is apparent that the door was forced open by pressure applied by the applicant from outside. What exactly happened in the bathroom is unclear. In his first record of interview, taken on the morning the deceased died, the applicant said that when he broke into the bathroom: She (the deceased) was through the window virtually, most of her was out. She was crouched on the ledge, below the window. Her head and arms were out the window. As that door opened she just stepped out the window. [page 93] In his unsworn statement at trial, the applicant repeated this explanation. The applicant also suggested that the deceased may have been suffering from depression, perhaps related to epilepsy, or from withdrawal symptoms connected with the use of amphetamines. The bathroom was a very small room. Upon entering the room, a toilet was straight ahead. To the right was a bath and to the left was the window between a hand basin and the toilet. Below the window was a vanity unit. The window itself was about a metre up from the floor. It was shoulder-width wide and less than a metre high. A glass ashtray was found broken in the bathroom. There were glass chips on the bathroom floor and there were gouge marks on two of the walls consistent with the applicant’s having swung the ashtray with his right arm commencing at the centre of the base of

the window, thence to a first gouge mark on some tiles and continuing through to a second gouge mark on the adjacent wall. There were, however, no bruises or marks on the deceased’s scalp which were consistent with her being struck by the ashtray. When a police witness was asked in cross-examination what the applicant had said to him when questioned as to whether he had struggled in the bathroom with the deceased, he said the applicant replied: “No. If I did I only grabbed her by the hair.” In the first record of interview the applicant said that he had only yelled at the deceased in the bathroom, and could not recall whether he had thrown anything at her in there. In his unsworn statement the applicant denied having touched the deceased in the bathroom at all. The deceased’s blood was found on the bathroom walls above her height, near the window and on the window sill and surrounds. The pattern was consistent with a bloodied object having struck a target, spraying the window, tiles and walls with blood. There were strands of hair lying in the bathroom, some with roots attached. Hair was attached to the tiles at the location of the gouge marks. Water and tissues, discoloured with blood, and hair were found in the toilet bowl. There were abrasions to the back of the deceased’s legs, consistent with her having fallen backwards out of the bathroom window, scraping her legs on the exterior brickwork as she fell. Also consistent with her having fallen in this manner was the evidence of stuntmen who attempted to reproduce her fall. An expert witness gave evidence that there were two possibilities: that the deceased had her back facing outwards, her legs inside, and she toppled out backwards or that she was sitting on the window sill, her legs dangling outside, and she fell forwards. The deceased appeared to have landed in an almost-sitting position, taking the impact of the fall on the base of her spine and her hand and falling backwards. … Essentially, the defence of the applicant was that he did not cause the death of the deceased but that, if he did, it was without reckless indifference to human life, without intent to kill and without intent to inflict grievous bodily harm. The trial judge charged the jury that there were three alternative

ways in which the jury might be satisfied beyond reasonable doubt that the applicant caused the death of the deceased. He told them: … the question immediately arises for you: was there an unlawful act of the accused causing death. Death, we know, resulted from the fall from the window … Are the acts of the accused that have been proved before you causatively linked to that fall. … The first alternative is that Kelly Healey was pushed or forced out of the window in a physical way by the accused. … A second factual circumstance open to you is that Kelly Healey fell from the window whilst avoiding a blow or an attack from the accused. Such a circumstance would not be an intentional endeavour by her to escape from the accused but rather an avoiding action on her part which resulted in a fall through the window. … [page 94] The third allegation is that Kelly Healey at the time immediately before her fall from the window, had a wellfounded and reasonable apprehension that if she remained in the bathroom she would be subjected to such further violence as would endanger her life and if in those circumstances she sought to escape by jumping out of the window thinking that by so doing she had a better chance of saving her life than by staying inside, and was killed in that fall, the causal link between the acts of the accused and the death are established. … The fourth factual circumstance that is open to you is that Kelly Healey jumped of her own volition, whether as a result of drugs or depression or epilepsy or otherwise would not matter. What would be important is that the act of leaving the window was not the result of or causatively linked to the acts of the accused. It would be suicide. If you found that then you must acquit the accused. Upon the request of counsel for the applicant, the trial judge also

put to the jury the possibility that the deceased fell out of the window accidentally; that she may have been sitting on the window sill and slipped. He directed the jury that such an occurrence would fall within the fourth category mentioned by him, indicating an absence of the required causal connection between the acts of the applicant and the death. This stood in contrast with the second category in accordance with which the deceased would have moved to avoid a swinging arm, with or without a weapon, being backed up against the open window with nowhere to flee. Whilst the trial judge left the jury with possible alternative views of the evidence, he made it clear to them that the applicant would not be guilty of murder unless he caused the death of the deceased. He said: The elements of murder involve that there be an unlawful act which is the act of the accused, which means that it must be an act which is conscious and willed and a voluntary act. It must be an act of the accused which caused death. In identifying the second and third possible views of the evidence, the learned trial judge clearly had in mind those cases which have been referred to as fright, escape or self-preservation cases in which the accused causes the victim to flee or take other steps to avoid harm threatened by the accused, whereby the victim suffers injury, fatal or otherwise. Where the injuries are fatal, the offence committed may be either murder or manslaughter depending on the circumstances of the case. The basic principle was stated by Lord Coleridge CJ in R v Halliday (1889) 61 LT 701, at p 702: If a man creates in another man’s mind an immediate sense of danger which causes such person to try to escape, and in so doing he injures himself, the person who creates such a state of mind is responsible for the injuries which result. In New South Wales in R v Grimes and Lee (1894) 15 NSWR 209, the accused were charged with the murder of Ah Choy, who was a fellow passenger with them in a railway carriage. They had robbed and assaulted Ah Choy causing him to jump to his death from the

window of the carriage. The Full Court approved a direction to the jury which was in the following terms: If, then, you are satisfied that Ah Choy left the window immediately after the robbery and wounding took place, and if you are satisfied that, though Ah Choy was not actually put through the window by the prisoners, yet that when he jumped through he had a well-founded and reasonable fear or apprehension that if he stayed in the carriage he would be subjected to such further violence as would endanger his life, and if he left the carriage thinking that by doing so he had a better chance of saving his life than by staying in, and was killed in the fall, then the prisoners are guilty of murder, and are just as responsible for the man’s death as if they had taken him in their hands and thrown him out of the window. Where in a case of that kind the charge is murder, the prosecution must not only prove that the accused caused the death by inducing a well-founded fear or apprehension on the part of the deceased such as to make it a natural consequence that he or she should take steps to flee or escape, but it must also prove that the words or conduct which [page 95] induced that fear or apprehension were accompanied by the intent which is a necessary ingredient of the crime of murder. In New South Wales, where the common law concept of malice aforethought is replaced by the statutory formula contained in s 18 of the Crimes Act, the requisite intent is a reckless indifference to human life, or an intent to kill or an intent to inflict grievous bodily harm upon some person. But the intent need not embrace the events which actually occur. While the death of the deceased must be caused by the accused, it may occur in a manner not contemplated by the accused, provided that the acts or words of the accused which cause the death are accompanied by the necessary intent. As was observed by McGarvie and O’Bryan JJ in R v Demirian [1989] VR 97, at p 113: If a person creates a situation intended to kill and it does kill it is no answer to a charge of murder that it caused

death at a time or in a way that was to some extent unexpected. In a defenestration case such as the present one it is as likely as not that the accused will not have intended the deceased to meet his or her death by jumping from a window, but it is important to keep the question of causation separate from that of the mental state required for murder. Provided that the words or actions of the accused which cause the deceased to jump or fall from the window (that is, the words or actions which cause death) are accompanied by the requisite intent, that will be sufficient to constitute murder. Of course, there may be no single cause of the death of the deceased, but if the accused’s conduct is a substantial or significant cause of death that will be sufficient, given the requisite intent, to sustain a conviction for murder. It is for the jury to determine whether the connection between the conduct of the accused and the death of the deceased was sufficient to attribute causal responsibility to the accused. No doubt in some cases of murder it may assist the jury if the trial judge points out not only that there must be a causal connection between the acts (or, more rarely, omissions) of the accused and the death of the deceased, but that the causal connection must be sufficiently substantial to enable responsibility for the crime to be attributed to the accused. However, in many cases of murder, particularly where a single act such as shooting or stabbing is alleged, it may be unnecessary to elaborate the requirement that the death should have been caused by the accused. In other cases it may be appropriate to point out that the causal chain must not be broken by some intervening event which operates to relieve the accused of responsibility, but such a direction would ordinarily be better put by reference to the actual facts of the case than couched in abstract terms. … McHugh J: … In most criminal cases, the issue of causation is not controversial. If an accused’s act or omission is causally linked with the event or occurrence, it is always only one of the conditions which were jointly necessary to produce the event or occurrence. Ordinarily, however, the application of the commonsense test of causation is enough to determine whether the

accused’s act or omission was sufficiently significant to make him or her ‘causally responsible’ for the event or occurrence in question. But there are two cases where the invocation of commonsense principles of causation often provides little assistance to the jury. The first is the case where an accused’s act would not have brought about the event or occurrence without the intervention of a subsequent act of the victim or a third party. The second is the case where, notwithstanding the accused’s act or omission, the event or occurrence could have been prevented if the victim or a third person had taken action to avoid the consequences of the act or omission. In these cases, common law judges have sought to use more specific tests for determining whether “but for” acts or omissions of the accused were “causally responsible” for the event or occurrence. The common law judges have used at least four tests for this purpose. They are: (1) the operating and substantial cause test; (2) the natural consequence test; (3) the reasonable foresight of the consequences test; and (4) the novus actus interveniens [page 96] test, which is used sometimes in conjunction with and sometimes independently of one of the other three tests. Unfortunately, the cases show no consistent pattern in applying these tests. Frequently, one test has been used to the exclusion of the others without any express recognition of the existence of the other tests. … … [T]he rules concerning causation are in an inconsistent and unsatisfactory state in cases where harm to the victim has occurred because of the subsequent acts or omissions of the victim or a third party. This branch of the law is in evident need of rationalisation. When such a situation exists, it is the duty of this Court, as the ultimate appellate tribunal of the nation, to seek to achieve that object by recourse to the underlying principles of the common law. Judicial and academic efforts to achieve a coherent theory of common law causation have not met with significant success. Perhaps the nature of the subject matter when combined with the lawyer’s need to couple issues of factual causation with culpability make achievement of a coherent theory virtually impossible. But

there is little hope of obtaining a coherent theory of causation if the principles of causation in criminal cases are significantly different from those in the civil law. No doubt the object of the civil law is not the same as the object of the criminal law. But both areas of law use principles of causal responsibility to limit liability for the consequences of wrongful acts. Tort and contract law do so, inter alia, by rules of remoteness of damage which are based on notions of justice and morality: cf Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388, at pp 422–423. Criminal law does so by reference to rules which are based on notions of moral culpability. Speaking generally, the broad principles of causation applicable in civil cases should be equally applicable in criminal cases. The law of negligence, where issues of causation have arisen frequently, has used the doctrines of reasonable foreseeability and novus actus interveniens to limit responsibility for negligent acts and omissions which are causally connected with injury suffered: Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522, at p 529. Reasonable foreseeability has been used to limit the liability of a tortfeasor because ‘it does not seem consonant with current ideas of justice or morality that for an act of negligence, however slight or venial, which results in some trivial foreseeable damage the actor should be liable for all consequences however unforeseeable and however grave, so long as they can be said to be “direct”’: The Wagon Mound (No 1), at p 422. The novus actus interveniens doctrine has been used to limit the liability of a tortfeasor because he or she is perceived as having no moral responsibility for damage when a fully-informed actor, not acting under constraint or pressure flowing from the tortfeasor’s actions, has intervened and produced that damage even though it would not have occurred but for the tortfeasor’s act or omission. For the same reasons, in a criminal case, a person should not be held liable for a wrongful act or omission which has caused harm in a “but for” sense if that harm was the product of a novus actus interveniens or was not a reasonably foreseeable consequence of the act or omission. It goes almost without saying, however, that a person should be held liable for harm which is causally linked with his or her conduct and which he or she intended should be brought about by that conduct: cf Hart and Honore, Causation in the Law, 2nd ed (1985), p 79.

The test of reasonable foresight is to be preferred to the “natural consequence” test and the “operating cause and … substantial cause” test. The balance of authority favours the reasonable foresight test over the “natural consequence” test. Moreover, the word “natural” is ambiguous. In Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (‘The Wagon Mound (No 2)’) [1967] 1 AC 617, Lord Reid said (at p 634), “[t]he word “natural” is found very often and is peculiarly ambiguous.”… … [page 97] [F]or the purposes of the criminal law, causation cannot be separated from questions of moral culpability. And a person should not be regarded as morally culpable in respect of harm which he or she did not intend and which no reasonable person could foresee. However, notwithstanding what was said in Daley [Director of Public Prosecutions v Daley [1980] AC 237] and Grimes and Lee, I do not think that either principle or policy requires the conclusion that an accused is not causally responsible for the harm suffered by the victim simply because the accused’s act or omission has caused the victim to act unreasonably. One of the basic objects of the criminal law is the preservation of the Queen’s peace. If the conduct of the accused in fact induces the victim to do something which “causes” harm to him or her, the act of the victim ought not to be regarded as a novus actus interveniens merely because it was unreasonable. Persons subjected to violence or the threat of violence do not always think rationally or act reasonably. The instinct of self-preservation often causes them to flee or to take action which, while avoiding the immediate danger, places them in greater peril. Indeed, in some cases, the suicide of the victim should not be regarded as breaking the causal chain of responsibility. If a person suicided to avoid further torture and eventual death, I do not see why the causal chain should be taken as broken … The unreasonable failure of a victim to receive medical attention will not constitute a novus actus interveniens … How then can unreasonable conduct on the part of a victim in escaping an attack automatically constitute a novus actus interveniens? It is true that in the first case the victim has refused to take action which would prevent his or her death, while in the

second case the victim has taken action which causes his or her death. But in each case, the death occurs only because of conduct on the part of the victim which is unreasonable by objective standards. It is not easy to see any distinction in principle between the two cases. It is even more difficult to see why the conduct of the victim should absolve the accused in one case and not the other. The fact that the victim’s act is unreasonable in seeking to escape from the violent conduct of the accused, therefore, does not seem enough by itself as a matter of either principle or policy to enable the accused to escape causal responsibility for the harm which ensues. On the other hand, even though the victim’s act is not a novus actus interveniens, to hold that the accused was criminally responsible for harm which was not intended and which no reasonable person could have foreseen was likely to result from his or her conduct would be an onerous imposition of the criminal law. Consequently, in a case such as the present, an accused should not be held to be guilty unless his or her conduct induced the victim to take action which resulted in harm to him or her and that harm was either intended by the accused or was of a type which a reasonable person could have foreseen as a consequence of the accused’s conduct. In determining whether a reasonable person could have foreseen the harm suffered by the victim, any irrational or unreasonable conduct of the victim will be a variable factor to be weighed according to all the circumstances of the case … [Mason CJ, Brennan, Deane, Dawson and McHugh JJ granted special leave to appeal, but dismissed the appeal. Toohey and Gaudron JJ dissented and would have allowed the appeal. Leave to appeal granted, appeal dismissed.]

2.11 In Arulthilakan v R (2003) 189 ALR 40, the High Court applied Royall, approving the reasoning of McHugh J and endorsing the language of ‘substantial cause’. [page 98]

Voluntary act of the deceased

2.12 Whether the act of the accused was a substantial cause of the death of the deceased may depend upon the capacity of the deceased to make a fully informed and rational decision as a response to the accused’s act. So, where the accused supplies the deceased with a noxious substance which the deceased ingests with fatal consequences, the question whether the act of supply is an act causing death may depend upon the capacity of the deceased to decide to ingest the substance supplied. This issue was discussed in Justins v R (2010) 79 NSWLR 544 in relation to an assisted suicide where poison was given by the appellant to the deceased who was suffering from Alzheimer’s disease. It has also arisen in a case where the deceased died after being supplied with an illegal drug by the appellant. Burns v R (2012) 246 CLR 334; 290 ALR 713 High Court of Australia [The appellant and her husband sold methadone from their unit to persons who either injected the drug on the premises or took it away to ingest later. The deceased attended the premises and was supplied with methadone, which he immediately ingested. He became ill and left the unit, dying from the effects of the methadone in the toilet in the yard of the premises. The Crown alleged at trial that the supply of the methadone to the deceased was an unlawful and dangerous act making the appellant liable for manslaughter of the deceased. In the High Court the Crown conceded that by itself the supply of a drug could not be dangerous but relied upon an allegation that the appellant or her husband had injected the deceased with the drug.] French CJ: [10] It is for the jury to decide whether an unlawful act is dangerous in the sense explained in Wilson and Lavender. The question whether there is evidence capable of supporting a finding that the act is dangerous, in the relevant sense, is a matter for the judge. There was nothing in the evidence to support the proposition that the supply of a prescription quantity of methadone

to an adult person of ordinary capacity could be characterised as carrying with it an appreciable risk of serious injury. The Crown did not put a case to the jury that supply of methadone to the deceased was itself an unlawful and dangerous act which would support a conviction for manslaughter. Nevertheless, the trial judge directed the jury on the basis that supply alone was capable of being so characterised. [11] The charge of manslaughter based upon supply of a drug to an adult person who dies as a result of its ingestion can raise difficult questions of principle and of the application of principle. The question whether supply can be characterised as dangerous depends upon the circumstances. It may be said that drug use in general is dangerous but as one academic commentator has written: The paradigm of unlawful act manslaughter, and one which limits the role of luck, involves an act which is dangerous in the specific context rather than dangerous as a more general social phenomenon. There may be a case for specific legislation to cover culpable drug induced homicide. It is undesirable to strain the criteria for liability for involuntary manslaughter at common law in order to cover drug-related deaths at the margins of those criteria. [page 99] [12] The application of the common law criterion of unlawful and dangerous act to drug supply and injection cases in the United Kingdom has varied and evolved, reflecting the difficulties which particular cases can throw up. R v Cato concerned consensual but unlawful injection of a user which resulted in his death and was sufficient to establish liability without a separate consideration of dangerousness. The consent of the deceased was not a defence and there was no suggestion that it might be relevant to causation. In R v Dalby the accused supplied a drug to the deceased who injected himself. The Court of Appeal identified as a “difficulty” the fact that the supply of the drug was not an act which caused “direct” harm. The court said:

the supply of drugs would itself have caused no harm unless the deceased had subsequently used the drugs in a form and quantity which was dangerous. Dalby was “explained” in Goodfellow as “intending to say … that there must be no fresh intervening cause between the act and the death”. R v Dias resembled Dalby. The accused had handed a syringe containing heroin to the deceased who self-injected and died. Holding that the supply of the heroin was not an “unlawful and dangerous act”, the Court of Appeal said that the deceased was an adult who could decide for himself whether or not to inject the heroin: His own action in injecting himself might well have been seen as an intervening act between the supply of the drug by the defendant and the death of [the deceased]. [13] Dalby and Dias were referred to with approval by the House of Lords in R v Kennedy (No 2). There, their Lordships said: the act of supplying, without more, could not harm the deceased in any physical way, let alone cause his death. That observation was underpinned by a particular view of the criminal law as generally assuming the existence of free will: generally speaking, informed adults of sound mind are treated as autonomous beings able to make their own decisions how they will act. That view was supported by reference to statements by Glanville Williams and Hart and Honore, which are quoted in the joint judgment. Exceptions were acknowledged in the case of young people, those not fully responsible for their acts, the vulnerable and those subject to circumstances of duress, necessity, deception and mistake. The exceptions were treated by their Lordships as matters relevant to causation. They were also at least arguably relevant to whether the supply of drugs to another creates, by reason of an attribute or condition or circumstance of the other, “an appreciable risk of serious injury”. [14] The House of Lords in Kennedy (No 2) was asked the question:

When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A controlled drug, which is then freely and voluntarily self-administered by the person to whom it was supplied, and the administration of the drug then causes his death? The answer given by their Lordships was: In the case of a fully-informed and responsible adult, never. The absolute character of that answer directs attention to the cautious oxymoron “never say never”. It is as much applicable to the law as other spheres of life and more so when it relates to an apparently normative statement based upon a narrow factual hypothesis. The joint judgment in this case however applies the proposition, which I accept, that underpins the reasoning in Royall v R: “that the voluntary and informed act of an adult negatives causal connection”. [page 100] [15] As their Honours point out a different approach was taken in Scotland in MacAngus v HM Advocate. In its discussion of causation, the High Court of Justiciary referred to Kennedy (No 2) and, after referring to Scottish authorities which had not been cited in the House of Lords, said: These Scottish authorities tend to suggest that the actions (including in some cases deliberate actions) of victims, among them victims of full age and without mental disability, do not necessarily break the chain of causation between the actings of the accused and the victim’s death. What appears to be required is a judgment (essentially one of fact) as to whether, in the whole circumstances, including the inter-personal relations of the victim and the accused and the latter’s conduct, that conduct can be said to be an immediate and direct cause of the death. The court quoted an observation of Lord Justice-Clerk Thomson who, in the context of civil proceedings in Blaikie v British

Transport Commission, described the problem of causation as “a practical one rather than an intellectual one”. He said: It is easy and usual to bedevil it with subtleties, but the attitude of the law is that expediency and good sense dictate that for practical purposes a line has to be drawn somewhere, and that, in drawing it, the Court is to be guided by the practical experience of the reasonable man rather than by the theoretical speculations of the philosopher. The court in MacAngus, in a passage quoted in the joint judgment which is not necessary to repeat here, could see no reason why the criminal law in Scotland should not adopt a “similar practical, but nonetheless principled, approach”. The approach favoured in MacAngus, however, does not represent the law in Australia. [16] Ultimately the Court of Criminal Appeal did not decide the question of causation by applying any novel principle. Rather, it held the trial judge’s directions in relation to causation were appropriate on the basis that the evidence of the condition of the deceased when supplied with the methadone left open the question whether he was a fully informed and responsible adult at that time. However, as explained in the joint judgment, the evidence did not support the proposition that the act of the deceased was not voluntary or informed. It was voluntary in the sense that he made his own decision to take the drug. It was informed in the sense that he knew that what he was taking was methadone. I should add that, as appears from the joint judgment, this is not a case in which the court has been invited to endorse the approach, also considered by the Court of Criminal Appeal, that the predictable responses of a sane adult to the act of another can be said to have been caused by that act. Gummow, Hayne, Crennan, Kiefel and Bell JJ: Manslaughter by unlawful and dangerous act — the supply of the methadone [75] In New South Wales, the elements of the offence of manslaughter are supplied by the common law. Manslaughter by unlawful and dangerous act requires that the unlawful act causing death be an objectively dangerous act. A dangerous act is one that

a reasonable person would realise exposes another to an appreciable risk of serious injury. The quality of dangerousness inheres in the unlawful act. The unlawful act must be the cause of death. [76] To supply drugs to another may be an unlawful act but it is not in itself a dangerous act. Any danger lies in ingesting what is supplied. [77] There has not been any extended consideration in Australia of the application of the law of manslaughter to the illicit supplier of a drug that, when taken by the person to whom the drug is supplied, causes that person’s death. But these issues have been explored by the English and Scots courts and it is useful to consider how these courts have dealt with them. [78] The Crown’s concession in this case, that the supply of methadone to the deceased was not a dangerous act, accords with English authority that the supply [page 101] of a controlled drug cannot support a conviction for unlawful and dangerous act manslaughter since the act of supply, without more, could not harm the deceased in any physical way. The correctness of this conclusion was affirmed by the House of Lords in R v Kennedy (No 2). [79] The Court of Criminal Appeal confined its analysis to causation and did not address the anterior question of whether the act of supply of the prohibited drug was relevantly “dangerous”. It was disinclined to follow the English approach, that manslaughter by unlawful and dangerous act cannot be established where the supply of the drug is to a person who is a “fully informed and responsible adult”. The Court preferred the approach adopted in Scotland in drug homicide cases. [80] There was no issue in Kennedy (No 2) that liability for unlawful and dangerous act manslaughter could not depend on the act of supply alone. Kennedy (No 2) resolved a controversy concerning the liability of the person who provides assistance to the deceased in injecting the prohibited drug. In question was whether Kennedy’s acts of preparing a dose of heroin and giving the syringe to the deceased at the deceased’s request amounted to

“administering” the drug contrary to the statute. Kennedy’s initial appeal against his conviction was dismissed by the Court of Appeal (Criminal Division) in a decision that proved to be controversial and which was later distinguished. Subsequently, the Criminal Cases Review Commission referred Kennedy’s conviction back to the Court of Appeal. The Court of Appeal again affirmed the conviction, holding on this occasion that Kennedy had been jointly engaged in administering the drug. It certified the following question for the opinion of the House of Lords: When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A controlled drug, which is then freely and voluntarily self-administered by the person to whom it was supplied, and the administration of the drug then causes his death? [81] The House of Lords answered the certified question: “In the case of a fully-informed and responsible adult, never.” Their Lordships’ analysis of causation proceeded upon acceptance that the law treats informed adults of sound mind as “autonomous beings able to make their own decisions how they will act”. They referred with approval to Glanville Williams’ statement of the principle: I may suggest reasons to you for doing something; I may urge you to do it, tell you it will pay you to do it, tell you it is your duty to do it. My efforts may perhaps make it very much more likely that you will do it. But they do not cause you to do it, in the sense in which one causes a kettle of water to boil by putting it on the stove. Your volitional act is regarded (within the doctrine of responsibility) as setting a new ‘chain of causation’ going, irrespective of what has happened before. And to that of Hart and Honoré: The free, deliberate, and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility.

[82] In Scotland, the supply of a controlled drug has been found to be a legal cause of the death of an adult who voluntarily consumed the drug. This decision follows Khaliq v HM Advocate, in which the supply of solvents to children was held to be capable of being the cause of injury to children who inhaled the vapours from them. In MacAngus v HM Advocate, a bench of five was constituted to review this line of authority in the light of the decision in Kennedy (No 2). In issue were preliminary challenges to counts charging culpable homicide against two accused. In one case, the unlawful act was the supply of a controlled drug to the deceased and, in the other, the act was the injection of the drug at the deceased’s request. In giving the judgment of the High Court of Justiciary, Lord justice General Hamilton said this: [page 102] We see no reason why the criminal law in Scotland should not, consistently with earlier authority in this jurisdiction, adopt a similar practical, but nonetheless principled, approach. The adult status and the deliberate conduct of a person to whom a controlled drug is recklessly supplied by another will be important, in some cases crucial, factors in determining whether that other’s act was or was not, for the purposes of criminal responsibility, a cause of any death which follows upon the ingestion of the drug. But a deliberate decision by the victim of the reckless conduct to ingest the drug will not necessarily break the chain of causation. [83] The references to recklessness in the formulation of the principle are significant. Recklessness, the foundation of culpable homicide in Scots law in cases of this kind, was not “wholly irrelevant” to the causal determination. The law, it was said, could more readily treat the reckless accused as responsible for consequences in the form of the actions of others “to whom he directs such recklessness”. [84] Recklessness does not inform unlawful and dangerous act manslaughter in Australia. The Court of Criminal Appeal did not embrace the reasoning of the High Court of Justiciary in this respect. However, it agreed with the conclusion that the voluntary act of an informed and responsible adult taking a prohibited drug

might not prevent the anterior act of supply of the drug from being in law the cause of the drug taker’s death. This is because: Where natural or physical events are being considered a voluntary human act may be the cause of that act. But when that human act is one which follows from the act of another human the position may be otherwise. The more predictable the response the more likely it is that the earlier act will be accepted to have caused, in the relevant sense, the later act. [85] This is in line with Professor Feinberg’s theory of causation, which suggests that “the more expectable human behavior is, whether voluntary or not, the less likely it is to ‘negative causal connection’”. It is a theory commended by one commentator as better reflecting the moral dimension of a death occasioned by the supply of an unlawful drug. The alternative view is that expressions of moral judgment should not intrude into the causal inquiry. [86] The analysis of the causation of homicide in Royall v R is posited on an acceptance that the voluntary and informed act of an adult negatives causal connection. Absent intimidation, mistake or other vitiating factor, what an adult of sound mind does is not in law treated as having been caused by another. The introduction of the concept of the predictable response of the sane adult actor would radically change the rationale for and the nature of the causal inquiry. Neither party invited this Court to endorse that approach. [87] The deceased was a sane adult. It is not suggested that his decision to take the methadone was vitiated by mistake or duress. His ability to reason as to the wisdom of taking methadone is likely to have been affected by the drugs that he had already taken but this is not to deny that his act was voluntary and informed. It was informed because he knew that he was taking methadone. He chose to take methadone not knowing what effect that drug would have in combination with the drugs he had already taken. A foolish decision to take a prohibited drug not knowing its likely effects is nonetheless the drug taker’s voluntary and informed decision. [88] The Crown’s concession that the unlawful supply of methadone was not an act capable of founding liability for

manslaughter should be accepted. The supply of the methadone was not an act that carried an appreciable risk of serious injury. That risk arose when the drug was consumed. The cause of the death of the deceased in law was the consumption of the methadone and not the anterior act of supply of the drug. [89] Acceptance of the Crown’s concession required that the appeal be allowed. The Crown submitted that the appropriate consequential order was for a new trial at which [page 103] it should be permitted to present a case on manslaughter by unlawful and dangerous act based on the appellant’s alleged complicity in injecting the deceased with methadone. This appeal is not the occasion to consider the responsibility for manslaughter, of a person who assists an adult at the adult’s request with the administration of a prohibited drug. Nor is it necessary to consider whether the Crown should be permitted to run a new case relying on a different unlawful act. This is because the evidence at the trial was not capable of establishing the appellant’s complicity in injecting, or assisting to inject, the deceased with the drug. The Court of Criminal Appeal’s conclusion to the contrary was based upon a misunderstanding of a concession made by the appellant. [The appeal was allowed, the conviction of manslaughter quashed and a verdict of acquittal entered.]

Pre-existing susceptibility 2.13 Accused persons must take their victims as they find them. The fact that the victim is weak and succumbs to some relatively minor injury is no reason to conclude that the actions of the accused did not cause the death charged. R v Moffatt (2000) 112 A Crim R 201; [2000] NSWCCA 174 NSW Court of Criminal Appeal [The appellant and the deceased had consumed a great deal of alcohol together. There was a fight and the deceased was ‘struck several times about the chest with a hammer and manually strangled’. The appellant argued that the Crown could not establish

that it was his action that caused the death, as the evidence was consistent with sudden death due to heart attack or alcohol poisoning.] Wood CJ at CL: … 25. Post mortem examination of the deceased, by Dr Lawrence, revealed that he had suffered fractures to two ribs. Blood was found in his lungs indicating to Dr Lawrence that he was still alive when his ribs were fractured. Those injuries were consistent with him having been struck by a hammer and with the production of an audible cracking noise. An oblique fracture to the thyroid cartilage was found, along with bruising to the neck of the deceased. The fracture to the cartilage was not itself life threatening, and could have occurred immediately before, at the time of, or just after death (ie during the peri mortem period). 26. Three factors contributing to death were noted by him, namely the ‘combined effects of compression of the neck, blunt force chest injury, and acute ethanol intoxication’. A fourth significant condition of the deceased was noted, namely that he had a seventy five percent occlusion of a coronary artery, which made him vulnerable to the risk of sudden death, without prior warning signs. 27. The description of the appellant seeing the tongue of the deceased turn blue and his eyes roll back, Dr Lawrence said, was consistent with the description of a person ‘being strangled to the point of unconsciousness’. The presence of forceful movements, while being strangled, and the absence of breathing, or of a pulse, a short time later, was suggestive to him of a temporal link and causal nexus, between the neck compression and death. [page 104] 28. A blue tongue, he conceded, could also be indicative of death from a heart attack or from alcohol poisoning, while the rolling back of the eyes could be a sign of a coma due to acute alcoholic intoxication. Although there were no signs of petechial haemorrhages, a common sign in cases of manual strangulation, that, he said, can occur where the compression to the neck is quick and forceful. 29. The normal path towards death from alcohol toxicity, Dr Lawrence said, involved a person becoming progressively more

comatose, although that depended on how quickly the alcohol was ingested. 30. Dr Lawrence agreed that, based purely on the autopsy findings, he could not attribute to any one of the likely causes identified, ie neck compression, acute alcohol toxicity, and cardiac arrest due either to atherosclerosis, or to blunt chest trauma, a higher degree of probability than another. … 32. Dr Byron Collins, a forensic pathologist, who was called by the defence, said that it was not possible to determine which of the potential causes of death identified by Dr Lawrence was “the most likely”. They may have acted individually or in conjunction. Those observations, however, so it became clear from his evidence, were based solely on the ‘pathological findings’. 33. The thyroid cartilage fracture, which could be associated with a loud crack, he said was unusual in a case of manual strangulation, but not impossible. The absence of petechial haemorrhage, he also agreed, while common in cases of manual strangulation, was not so uncommon as to exclude that possibility. It was also possible, he said, that the neck injuries were due to a fall or were occasioned after death. The rolling of the deceased’s eyes and the change in colour of his tongue, he thought, did not indicate anything specific other than that the cerebral, musculature and cardiac functions were compromised. Whether that was due to the cardiac problems or to asphyxia he was unable to say. 34. The toxic effects of alcohol he explained as acting as a depressant for the central nervous system, particularly the respiratory centre, which can cause breathing to stop, leading to death. Additionally, the toxic effects can damage the heart fibres and produce cardiac arrhythmia of sufficient severity to produce death. 35. Another possibility, that emerged in his evidence, related to the circumstance that manual strangulation can lead to sudden death where there is an interference with the carotid sinus and the vagus nerve, a consequence that is more likely in a person predisposed to cardiac arrest. …

Causation 61. As noted above, the evidence raised a number of possible causes of death: (a) strangulation; (b) blunt force compression of the chest; (c) cardiac arrest; (d) alcoholic poisoning; and (e) a combination, of all or any two or more, of those causes. 62. It was submitted that, in those circumstances, the Crown could not have satisfied his Honour beyond reasonable doubt, that an act of the appellant caused, or accelerated the death of the deceased. More precisely, it was submitted that the reasonable hypothesis that the act of the appellant, which he may have believed caused or contributed to the [page 105] death of the deceased, occurred after he was already dead or at a time when he was coincidentally dying from unrelated causes. … 65. His Honour, having noted the evidence of Doctors Lawrence and Byron Collins, correctly observed that the appellant, having used violence on the deceased, had to take him as he found him … Mamote-Kulang (1964) 111 CLR 62 is clear authority for the proposition that the presence, in the deceased, of a constitutional defect unknown to his assailant which makes the victim more susceptible to death than would be a person in normal health, does not enable the assailant to claim that death is an accident: Windeyer J there observed, at 79: A killing is not less a crime because the victim was frail and easily killed … 66. It does not matter that there is more than one cause of death: Butcher [1986] VR 43, even if the victim is suffering from a condition that is threatening death, so long as the contribution of the accused later mentioned is present. It is indeed a

misapplication of principle to attempt a search for a principal cause of death … 67. In the present case, it is true, the appellant was confronted with a man who was susceptible to sudden death, because he had atherosclerotic disease, because his blood alcohol level approached a lethal level, and because he suffered from alcohol related liver disease, which may have reduced his resistance and otherwise impaired his health. 68. Having noted that the precise mechanism of death was “obscure”, in those circumstances and upon the pathology, his Honour correctly in my view identified the issue for determination as being whether, by his actions, the appellant accelerated the death of the deceased in a way that met the test of causation. 69. On that issue of causation his Honour then correctly directed himself by reference to the fact that in Royall (1990) 172 CLR 378, each of Mason, CJ; Deane and Dawson JJ; and Gaudron and Toohey JJ, in their separate judgments, cited with approval: … the comments of Burt CJ in Campbell v R [1981] WAR 286, where the following was said: (at 290) (It is) enough if juries [are] told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter. 70. The formulation of the test to be applied was not stated by their Honours in identical terms. Brennan J said that the accused’s act or omission ‘must contribute significantly to the death of the victim’ (at 398). Deane and Dawson JJ said that it would be sufficient if the accused’s conduct “is a substantial or significant cause of death” (at 411). The “causal connection must be sufficiently substantial to enable responsibility for the crime to be attributed to the accused” (at 412). Toohey and Gaudron JJ said the jury will inevitably concentrate its attention upon ‘whether the act of the accused

substantially contributed to the death’ (at 423). McHugh J said that the wrongful act must be “An operating cause and a substantial cause” (at 444). 71. What is clear is that the act of the appellant must have more than a coincidental or insignificant effect — rather it must provide a substantial contribution towards the death of the deceased: See also Smith [1959] 2 QB 35; Evans and Gardiner (No 2) [1976] VR 523; Bingapam (1975) 1 1 SASR 469 at 480; Hallett [1969] SASR 141; and Osland (1998) 159 ALR 170 at 174. Although there has been some debate as to whether the expression “significant” is interchangeable for “substantial” in this context (see Vol 24 Criminal Law Journal April 2000 at 73), I am content to accept for the present purpose the latter. 72. If the appellant’s act does not initiate that process of death, then it has been held, that it must at least accelerate it by an amount that is “more than de minimis”: Hennigan [page 106] [1971] 3 All ER 133; Cato [1976] 1 WLR 110, and Smithers (1977) 34 CCC (2d) 427 at 435. Such expression is, however, somewhat lacking in certainty, and I would prefer to employ a test in terms requiring a substantial contribution to any process that is under way, in order to achieve a consistency in relation to acts initiating and accelerating death. Nothing, however, turns upon that in this appeal, as it is evident that his Honour looked for an accelerating contribution that was substantial. [His Honour reviewed the evidence presented at trial then continued:] … 76. As was the case in Puckeridge (1999) 74 ALJR 373a, it was in my view open to his Honour to be satisfied beyond reasonable doubt that the appellant had physically attacked the deceased, and that this attack either coincided with or immediately preceded his death. Once this conclusion was reached it was equally open to him to dismiss, as unreasonable, the possibility that his death was unconnected with the attack, but was attributable to the entirely coincidental suffering of cardiac arrest or collapse due to alcoholic toxicity. In this regard, while, on a purely scientific or philosophic basis, the autopsy findings left open several possibilities, once they were considered in the light of the events as described by the

appellant, the only reasonable hypothesis open was that found by his Honour. [Foster and Adams JJ agreed with Wood CJ at CL. Appeal dismissed.]

Death of a living person 2.14 Under s 18 of the Crimes Act (see 2.3) it is the ‘death charged’ that must be caused for an offence of murder. At common law, the death caused must have been of ‘any reasonable creature in being’ (Sir Edward Coke (3 Inst 47)). In other words, a living person must be killed. The common law has attempted to define when life begins and ends. In R v Hutty [1953] VR 338 at 339, Barry J said: [L]egally a person is not in being until he or she is fully born in a living state. A baby is fully and completely born when it is delivered from the body of its mother and it has a separate and independent existence in the sense that it does not derive its power of living from its mother. It is not material that the child may still be attached to the mother by the umbilical cord; that does not prevent it from having a separate existence. But it is required … that the child should have an existence separate from and independent of its mother, and that occurs when the child is fully extruded from its mother’s body and is living by virtue of the functioning of its own organs.

2.15 The relevant test for New South Wales is set out in the Crimes Act: 20 Child murder when child deemed born alive On the trial of a person for the murder of a child, such child shall be held to have been born alive if it has breathed, and has been wholly born into the world whether it has had an independent circulation or not.

Section 20 applies only to murder. It essentially adopts the Hutty test (see 2.14). The test for determining whether the

‘child’ killed is a ‘person’ for the purposes of the law of manslaughter is set out in R v Iby (see 2.17). For a discussion of whether the death of the foetus can amount to grievous bodily harm to the mother, see R v King (2003) 59 NSWLR 472; [2003] NSWCCA 339. The killing of a foetus in utero cannot be murder (but see Crimes Act ss 21 and 82–85). [page 107] 2.16 A person who is already dead cannot be murdered. Equally, where a person is not yet dead, for example, when he or she is on life support, no conviction for murder can be maintained. The legal definition of death for New South Wales is given in s 33 of the Human Tissue Act 1983 (NSW). 33 When death occurs For the purposes of the law of New South Wales, a person has died when there has occurred: (a) irreversible cessation of all function of the person’s brain, or (b) irreversible cessation of circulation of blood in the person’s body.

2.17 In Iby, the Court of Criminal Appeal considered when a child is ‘born alive’ for the purposes of manslaughter. R v Iby (2005) 63 NSWLR 278; [2005] NSWCCA 178 NSW Court of Criminal Appeal Spigelman CJ: 1. On 4 April 2002 the Appellant was driving a stolen vehicle … at excessive speed and in an erratic manner. After colliding with a car travelling in the same direction the Appellant’s vehicle crossed the double white lines and collided head-on with a car driven by Mrs My Nghi Vongratsavai, who was 38 weeks pregnant. Following her arrival at Liverpool Hospital, an emergency caesarean was performed on Mrs Vongratsavai and a male infant in poor condition was delivered, subsequently named Mathew Joseph Vongratsavai. The delivery occurred at 11.48 am.

Mathew was pronounced dead exactly two hours later at 13.48 pm. 2. The Appellant was charged with a number of offences including, manslaughter … He pleaded not guilty to these charges … 3. Where an offence involving killing or death of a newly born child arises as an element of a criminal offence, there is a longestablished common law rule that the element cannot be established unless the baby was “born alive”. The issue that arises in this case is what is meant by the words “born alive?” 4. It was the Crown case, both at first instance and in this Court, that Mathew was fully issued forth from his mother and lived independently of her for two hours before he died, albeit supported by mechanical respiration. The baby was, it was submitted, a person within the law. 5. The Appellant’s case was that the baby was not born alive and did not live independently. The primary basis of the submission was the lack of, or paucity of, evidence that the baby breathed independently. The Appellant submitted that the presence of a heartbeat, which did exist, was not enough for the baby to have been born alive for purposes of the common law rule. Alternatively, in this Court, the Appellant relied on the absence of or paucity of evidence of the baby’s brain function. Accordingly, it was submitted, the Appellant did not cause the death of another person. … The Born Alive Rule 25. The “born alive” rule can relevantly be traced back to the 17th century … 26. The born alive rule was applied in a number of distinct areas of the common law, including, relevantly, the law of homicide, where it had considerable practical [page 108] significance in distinguishing the misdemeanour of procuring an abortion from the felony of homicide. … 27. The rule consists of two distinct components. First, that the

foetus must have completely left its mother’s body (although the umbilical cord did not have to be cut, see R v Trilloe (1842) Car & M 650; 175 ER 674). Secondly, the child must be alive at or after birth, in that sense, had occurred. The case law does not always clearly distinguish between the two elements. This appeal is concerned with the second limb of the rule. 28. In Australia, the rule was stated by Barry J in his Honour’s charge to the jury in R v Hutty … [His Honour set out an extract from Hutty as contained in 2.14, above, and continued:] 29. The rule remains the law in Australia and has been applied in this Court. (See R v F (1996) 40 NSWLR 245 esp at 247–248 per Grove J.) 30. There is a body of commentary on the born alive rule upon which I have drawn to identify the relevant case law and to understand the development, scope and purpose of the rule … 31. The law presumed that all children were born dead and the fact of live birth had to be established by evidence … Usually such proof was not difficult, but problems arose when a child died soon after birth and there was no, or little, direct evidence of what had happened at or immediately after birth. 32. The born alive rule is based on two anachronistic, indeed antiquated, factors. First, the primitive state of medical knowledge at the time that it was adopted. Second, the related fact that birth was a process fraught with risk until comparatively recently and, accordingly, there was a high probability that a stillbirth had natural causes. 33. At the time the rule was adopted, there were considerable difficulties in establishing that the foetus was alive at the time of the allegedly criminal act, and that the child would have lived but for the act. … 36. The position is now totally transformed. Information about the vitality of the foetus is now readily available. 37. The second basis for the born alive rule was the prevalence of stillbirths. It is for this reason that the common law developed a

presumption that a baby was born dead and evidence was required to prove live birth. 38. Statistics on this matter are not available until well after the born alive rule was adopted. However, the anecdotal evidence is overwhelming and is supported by such quantitative information as is available. … [His Honour reviewed the early authorities and the medical evidence on which they were based and continued:] 62. This review of the authorities indicates that his Honour was correct to hold that the evidence of heartbeat was sufficient to satisfy the common law born alive rule. His Honour was also correct to reject the Appellant’s submission that a person cannot be born alive unless the person had manifested an ability to breathe without assistance. 63. The born alive rule is, as I have indicated above, a product of primitive medical knowledge and technology and of the high rate of infant mortality characteristic of a long past era. There is a strong case for abandoning the born alive rule completely, as has occurred by statute in many states of the United States and by judicial decision in Massachusetts, South Carolina and Oklahoma. 64. The context in which the rule arises for present consideration is a context in which the Appellant wishes to avoid criminal responsibility for manslaughter of a baby which [page 109] was injured as a late term foetus, indeed was fully developed in perfect condition and within a week or two of actual birth. In the current state of medical technology and with the extremely low rate of stillbirths in the Australian community, the born alive rule, if it is to survive at all, should continue to be applied, as Ellis DCJ did, so that any sign of life after birth is sufficient. This happens to be consistent with the authorities. 65. It is also the approach which conforms best with contemporary conditions. It is now virtually certain that a newborn baby which shows any sign of life would have lived but for the conduct, said to constitute manslaughter or dangerous driving, inflicted on the baby late in the mother’s pregnancy. The viability of a foetus can now be both established and ensured in a manner which was beyond the

realms of contemplation when the born alive rule was adopted. That rule should now be applied consistently with contemporary conditions by affirming that any sign of life after delivery is sufficient. … The Proposed Brain Death Rule 68. The Appellant’s submissions appear to rely on two alternative arguments with respect to the implications of s 33 of the Human Tissue Act 1983, set out above. First, it was suggested that the Act operated of its own force to change the common law by reason of the fact that it introduced a definition of death “for the purposes of the law of New South Wales”. The second argument appears to be that the common law should be adapted, so that the definition of life coincides with the new statutory definition of death. 69. In Ansett Australia v Dale [2001] NSWCA 314 at [31] the Court of Appeal described the introductory words of s 33 as meaning that the definition of death was one ‘of general application’. 70. The thrust of the Appellant’s submissions was that it would be anomalous if a person could be classified as “dead” for virtually all purposes of the law of New South Wales, but also be classified as “alive” for some of those purposes, specifically with respect to the application of the common law born alive rule to criminal offences. I cannot myself identify any relevant anomaly, other than perhaps a semantic one, which should not be determinative. 71. It is important in this, as in so many contexts, to bear in mind Fullagar J’s warning in Attorney General (NSW) v Perpetual Trustee Co Limited (1951–1952) 85 CLR 237 at 285 to resist “… the temptation, which is so apt to assail us, to import a meretricious symmetry into the law”. Although a similar argument has succeeded in the United States (see State of Wisconsin v Cornelius 152 WIS.2d 272 (1989)), I would not adopt it here. 72. The scope and purpose of the Human Tissue Act, to which I will further refer below, providing as it does a definition of death of general application, does not indicate any legislative intention to alter the concept of “life” for purposes of the law, specifically the born alive rule. There is no purpose of the legislative scheme that would be served by extending its application in this manner, on the

basis of a semantic analogy of the character relied upon by the Appellant. 73. The Act finds it [sic] origins in the consideration of brain death by the Australian Law Reform Commission in its report on Human Tissue Transplants (Report No 7 AGPS Canberra 1977). … 76. The Human Tissue Act is part of a scheme which is in large measure a national scheme. The Australian Law Reform Commission recommendation of a definition has now been adopted in all States and Territories, other than Western Australia. … 77. There are considerable difficulties in developing the common law by analogy with statute. See the discussion in Esso Australia Resources Australia Limited v Federal Commissioner of Taxation (1999) 201 CLR 49 esp at [23], [64], [91] and [144]. Here there [page 110] is a much closer approximation to a national uniform regime than that considered by the High Court in Esso. Only Western Australia wholly fails to adopt the definition and only Queensland limits its application to the particular purposes of the Transplantation and Anatomy Act 1979 (Qld). Nevertheless, there is no uniformity. 78. More significant, however, for present purposes is the above analysis with respect to the application of the statutory definition of death to the common law born alive rule. The Courts should also resist the temptation to introduce a meretricious symmetry between the common law and statute law. The definition of death does not, other than in the context of semantic symmetry, require a corresponding definition of life. This is particularly so for the purposes of a common law rule which, as I have indicated above, is itself anachronistic and which adopts an artificial and nonscientific concept of when life begins. Other than in semantic terms, this test for the born alive rule is not the reciprocal of death as now defined by statute. [Grove and Bell JJ agreed with the reasons and decision of Spigelman CJ that the appeal should be dismissed.]

2.18 Iby was applied in Whelan v R [2012] NSWCCA 147

where the appellant was convicted of dangerous driving causing death. As a result of the motor vehicle accident the pregnant passenger suffered a detachment of the placenta from the uterus. The infant was born prematurely and died as a result. The Court held that there was sufficient causal connection between the dangerous driving and the death to sustain the charge even though the infant was not alive at the time of the collision.

Fault elements 2.19 We now turn to the fault elements of murder. Section 18 of the Crimes Act (see 2.3) provides that the act or culpable omission that causes death must be accompanied by a stipulated fault element (mens rea). To be murder, the accused must have acted (or culpably omitted to act): with reckless indifference to human life; with intent to kill; with intent to cause grievous bodily harm; or during or immediately after the commission of a serious criminal offence (with respect to which serious criminal offence the accused had the required mens rea): see 2.28.

Reckless indifference to human life 2.20 The High Court considered the term ‘reckless indifference to human life’ in Crabbe. This was a case that came to the High Court from the Northern Territory before the enactment of the Criminal Code of the Northern Territory. At the time, the relevant law in the Territory was the common law, which underpins the Crimes Act. The effect is that, even though this case originated under the law of a territory, the principles there laid down remain applicable to

New South Wales (see R v White, Eaves and Parker (1989) 17 NSWLR 195). [page 111] R v Crabbe (1985) 156 CLR 464; 58 ALR 417 High Court of Australia [The accused had been convicted of murder following an incident in the Northern Territory. After having been ejected from a bar in which he had been drinking, the accused had driven his truck (prime mover and trailer) into the bar, killing five people who were then in the bar. He argued that he did not intend to kill, and did not realise that he would kill anyone. In the course of giving directions to the jury, the trial judge had said, inter alia, that a person was guilty of murder with reckless indifference to human life, if he realised the possibility that his actions would cause death, or that death was likely. The accused was convicted and appealed to the Full Court of the Federal Court, which upheld his appeal and ordered a new trial. The Crown appealed to the High Court.] Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ: … The Criminal Code Act 1983 (NT) had not been passed at the times material to this case and the rules of the common law governed the question what mental element is necessary to constitute the crime of murder, or, to use the traditional terminology, what is meant by malice aforethought. That question was answered in Stephen’s Digest of Criminal Law, 1st ed (1877), in art 223 which, so far as is relevant, is as follows: … Murder is unlawful homicide with malice aforethought. Malice aforethought means… (a) An intention to cause the death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not; (b) Knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.

There has been in this Court some difference of opinion as to whether the knowledge which an accused person must possess in order to render him guilty of murder when he lacks an actual intent to kill or to do grievous bodily harm must be a knowledge of the probability that his acts will cause death or grievous bodily harm (as Stephen’s Digest of Criminal Law holds) or whether knowledge of a possibility is enough. In Pemble v R (1971) 124 CLR 107 Barwick CJ thought it sufficient that death or grievous bodily harm should be foreseen as possible (see at pp 118–121) but McTiernan and Menzies JJ were of the opinion that it was necessary that the accused should have foreseen or known (the words are used without any apparent distinction) that death or grievous bodily harm would be a probable or likely (both expressions are used) consequence of the act: see at pp 127, 135. The matter was considered again in La Fontaine v R (1976) 136 CLR 62. In that case Stephen J agreed (at pp 85–86) with the opinion expressed by Barwick CJ in Pemble v R that it was enough that the accused foresaw the possible consequences of his acts but Barwick CJ himself appeared now to think that it is an open question whether it is sufficient if the accused appreciated a possibility rather than the probability of serious harm: see at p 69. Gibbs and Jacobs JJ held that in a case of this kind an accused would not be guilty of murder unless he foresaw that death or grievous bodily harm was a probable consequence of his behaviour (see at pp 75–77 and 94– 100) and although Mason J left the question open he noted, at p 91, that the suggestion made by Barwick CJ in Pemble v R was not a view shared by McTiernan and Menzies JJ in that case and that it was at odds with the speeches of the members of the House of Lords in R v Hyam [1975] AC 55. Clearly the balance of opinion on this Court has been in favour of the view that the mental state necessary to constitute murder in a case of this kind is knowledge by the accused that his acts will probably cause death or [page 112] grievous bodily harm. The view that knowledge of a possibility is not enough has been accepted by the Full Court of the Supreme Court of Victoria (R v Jakac [1961] VR 367; R v Sergi [1974] VR 1; Nydam v R [1977] VR 430; R v Windsor [1982] VR 89) and by the Full Court of the Supreme Court of South Australia (R v Hallett [1969] SASR 141).

The conclusion that a person is guilty of murder if he commits a fatal act knowing that it will probably cause death or grievous bodily harm but (absent an intention to kill or do grievous bodily harm) is not guilty of murder if he knew only that his act might possibly cause death or grievous bodily harm is not only supported by a preponderance of authority but is sound in principle. The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm. Indeed, on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur. That view was expressed in R v Hyam by Viscount Dilhorne (at p 82), Lord Diplock (at p 86) and possibly by Lord Cross of Chelsea (at p 96), although Lord Hailsham of St Marylebone LC denied its correctness (at pp 74–75). There is other authority in favour of the view, including some of the cases mentioned in Archbold’s Criminal Pleading, Evidence and Practice 41st ed (1982), at pp 995–1001 and the passage from Kenny, Outlines of Criminal Law cited by Dixon CJ in Vallance v R (1961) 108 CLR 56, at p 59. It is however unnecessary to enter upon that controversy. If an accused knows when he does an act that death or grievous bodily harm is a probable consequence, he does the act expecting that death or grievous bodily harm will be the likely result, for the word “probable” means likely to happen. That state of mind is comparable with an intention to kill or to do grievous bodily harm. There is a difference between the case in which a person acts knowing that death or serious injury is only a possible consequence, and where he knows that it is a likely result. The former is not a case of murder even if death ensues, unless death or grievous bodily harm is intended (or, perhaps — and it is unnecessary to consider this proposition — unless the act is done with the intention and for the sole purpose of creating a risk of death or grievous bodily harm). It should now be regarded as settled law in Australia, if no statutory provision affects the position, that a person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result, is guilty of murder if death in fact results. It is not enough that he does the act

knowing that it is possible but not likely that death or grievous bodily harm might result. A person who does an act causing death knowing that it is probable that the act will cause death or grievous bodily harm is, as Stephen’s Digest states, guilty of murder although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not or even by a wish that death or grievous bodily harm might not be caused. That does not mean that reckless indifference is an element of the mental state necessary to constitute the crime of murder. It is not the offender’s indifference to the consequences of his act but his knowledge that those consequences will probably occur that is the relevant element. Of course, not every fatal act done with the knowledge that death or grievous bodily harm will probably result is murder. The act may be lawful, that is, justified or excused by law. A surgeon who competently performs a hazardous but necessary operation is not criminally liable if the patient dies, even if the surgeon foresaw that his death was probable. Academic writers have pointed out that in deciding whether an act is justifiable its social purpose or social utility is important: see, for example, Howard, Criminal Law, 4th ed (1982), at pp 54–55 and 357–359. That question need not be discussed in the present case where there was no possible justification or excuse for the actions of the applicant. It should however be made clear [page 113] that lack of social purpose is not an element of the mental state with which we are here concerned, though it may bear on the question whether the act is justifiable. It was submitted on behalf of the Crown that a distinction can be drawn between foresight of the consequences of an act — ie what harm it would do if persons were in a position to be affected by it when it occurred — and a foresight of circumstances — ie of the fact that persons were in a position to be affected. There is no justification in logic or principle for drawing a distinction of this kind. The test simply is whether the accused person knew that his actions would probably cause death or grievous bodily harm. [Special leave to appeal granted. Appeal dismissed.]

2.21 In R v Grant (2002) 55 NSWLR 80 at 89–90, Wood CJ at CL said: In order for an accused to be convicted of ‘murder by reckless indifference to human life’, the Crown needs to show that he or she knew that the probable result of his or her act (or omission), in this case the act of firing the gun, was to cause the death of another, and knowing of that likelihood (which has to be a substantial or real chance as distinct from a mere possibility) he or she went ahead and did the act regardless: R v Crabbe (1985) 156 CLR 464; Royall v The Queen (1991) 172 CLR 378; Boughey v The Queen (1986) 161 CLR 10 (a code case). To prove murder by reckless indifference to human life, an accused need not be shown to have specifically intended or wanted death to result, only that he or she comprehended that there was a real or substantial likelihood of it occurring, and went ahead regardless. As such, it is strictly not a crime of specific intent (see the decisions on the equivalent offence in Code States such as Masnec v The Queen [1962] Tas SR 254 and Vallance v The Queen (1961) 108 CLR 56). The Crown must still however show that the accused intended to do the physical act (or omission) involved, and that such act (or omission) was voluntary. Of importance is the circumstance that an awareness or foresight of the consequence of the act (or omission), on the part of the accused personally, is essential for proof of the offence. It is not sufficient that an ordinary or reasonable person would have foreseen the probability of the occurrence being the death of another: Pemble v The Queen (1971) 124 CLR 107. There is, accordingly, an additional element affecting the subjective mental state of the accused, which is to be established in the case of murder by reckless indifference, and which goes beyond the basic intent to do (or omit) the act which brings about death. The mens rea for this form of offence, as was pointed out in R v Crabbe (at 470–471), is the knowledge of the offender that death is the probable consequence of his or her act (or omission), to which I would add the decision to go ahead regardless of that consequence.

2.22 The High Court in Crabbe identified that, where no

statutory provision alters the common law as to the foresight of the probability of death or grievous bodily harm amounting to murder, this is a sufficient fault element to make the accused guilty of murder. In New South Wales, however, a statutory provision, namely s 18 of the Crimes Act, does alter the common law definition of murder by requiring a foresight of the probability of death. As a result a foresight by the accused that his or her actions would probably result in grievous bodily harm and not death is insufficient to establish murder in this state. [page 114] R v Solomon [1979] 1 NSWLR 321 NSW Court of Criminal Appeal Begg J: In my view, to make out a case for murder where there was no intent to kill or inflict grievous bodily harm, a state of affairs has to be proved which shows that the accused was doing some act, or omitting to do some act, when his mental state was, as the New South Wales section says, “with reckless indifference to human life”. In my view, it is not adequate in New South Wales to prove any lesser sort of reckless indifference, such as indifference to whether the deceased or some other person might have been injured. I see no justification for reading down “indifference to human life” by inviting a jury to consider whether the act was done with a mental ingredient such that the accused foresaw that, as a probable consequence of his action, the deceased or some other person would probably receive a serious injury and, with that knowledge, proceeded to do the act. … I am aware that, in considering English criminal law, apart from statutes, Sir James Fitzjames Stephen’s Digest of the Criminal Law, 9th ed, p 212, deals with the proposition that murder could be established where the mental state of the accused showed knowledge that the act would probably cause the death of, or grievous bodily harm to, some person, where such knowledge is accompanied by an indifference where the death or grievous bodily harm is caused or not. A direction along those lines no

doubt would be appropriate in those parts of Australia where the law of murder is still the common law. [His Honour reviewed the history of s 18 of the Crimes Act, which started life as s 9 of the Criminal Law Amendment Act 1883, then continued:] In the original text, the words “life” and “reckless” were in italics for emphasis. It will be seen, therefore, that the concept now being discussed, namely “reckless indifference to human life”, was a new legislative conception. In my opinion, it was done deliberately, in an attempt to embrace all which ought to be within the category — “Without embarrassing any intelligent jury, in determining its application to the facts before them”: see Stephen’s Manual, p 10. For these reasons, in a charge to a jury on the basis of reckless indifference to human life (where the facts warrant it) the task of a jury will be rendered much simpler if it is confined to the parameter of the section itself without reference to the foreseeable consequence — grievous bodily harm. After all, the death of a human being is considered in a murder case, and the section requires that the accused be proved to be guilty of reckless indifference to human life, not reckless indifference to some other form of physical harm falling short of death.

2.23 Proof of ‘reckless indifference to human life’ requires satisfaction of a subjective test. The conduct of a person who does an act which he or she knows or foresees is likely to cause death is regarded, for the purposes of the criminal law, as just as blameworthy as the conduct of one who does that act with an intention to kill or to inflict really serious bodily injury. The Crown must establish that the accused fully realised that the probable consequence of his or her act or culpable omission was death, and that he or she was nevertheless prepared to take the chance that that consequence would follow. The awareness of the probable consequence of death is essential to the Crown case. [page 115]

Intention to kill

2.24 Intention involves foresight of the consequence of an act or culpable omission and a desire to bring it about. One kills with an intention to kill if one’s objective or desire is to cause the death of someone. ‘Intention’ does not require premeditation and is different from motive. A person who breaks into a house and is cornered by the home-owner may kill in order to escape. The fact that he or she did not, at the time of entering the house, intend to kill does not mean that it is not murder just because the killing was not planned. Further, it cannot be said that the assailant’s intention was ‘to escape’. That is to confuse motive and intention. The motive behind the killing may have been ‘to escape’ but provided that, at the time the assailant performed the act that caused the death, he or she intended to cause death, it is murder.

Intention to cause grievous bodily harm 2.25 A person kills another with intent to cause grievous bodily harm if, at the time of performing the act that caused the death, the accused desired grievous bodily harm as a consequence of his or her acts or omissions. The Crimes Act states, at s 4, that grievous bodily harm ‘includes … any permanent or serious disfiguring of the person’. The term has been taken to mean injury of a really serious kind (see R v Sergi [1974] VR 1). The term is explained to juries in New South Wales as ‘really serious bodily harm’. Again, questions of premeditation, or why the accused wanted to cause the harm, are usually irrelevant (but see the discussion of selfdefence in Chapter 9). 2.26 It must be emphasised that, under New South Wales law, it is insufficient for murder that the accused was merely reckless as to the probability that he or she would cause grievous bodily harm. In other words, the concept of recklessness operates where the accused foresaw but did not intend death and went ahead notwithstanding that foresight,

but not where he or she foresaw only the probability of grievous bodily harm (see 2.3). 2.27 Where the Crown relies on the accused’s intention (either to kill or cause grievous bodily harm), the Crown must prove that the accused had the necessary intention, not that a person in the accused’s position would have had the relevant intention. It is impermissible to invite a jury to reason that a person must be presumed to have intended the natural and probable consequences of his or her action. This means that, just because a person should have realised, or did realise, that the probable consequence of his or her actions would be death or serious injury, it does not follow that the person intended to inflict death or serious injury. As Hunt J explained in R v Stokes and Difford (1990) 51 A Crim R 25 at 30: In cases in which the Crown has to establish that the act of the accused was done with a specific intention (that is, that he sought by that act to achieve a particular result), it is usual to direct the jury in the appropriate case that a person’s acts may themselves provide the most convincing evidence of his intention. If, for example, a person deliberately hits another hard on the head with a hammer, it is easy to conclude from that act that he thereby intended to inflict grievous bodily harm upon that other person. Such harm (or injury) was the result which he sought to achieve by

[page 116] his act. If the argument is put by the Crown (and repeated by the judge) that a person who deliberately does such an act must have intended to inflict such injury it amounts to no more than an invitation to draw such an inference or conclusion because it is impossible to imagine from one’s experience of life what other result the accused himself could have sought to achieve by that act. It is not in any way an invocation of the impermissible presumption [that a person

intends the natural and probable consequences of their action] … The danger of the presumption that every person intends the natural and probable consequences of his acts is that it produces an illegitimate transfer of the burden of proof upon the issue of intention from the Crown to an accused denying the allegation: Stapleton (1952) 86 CLR 358 at 365. The High Court has on several occasions disapproved of any reference to such a presumption. The cases are collected in Smyth (1957) 98 CLR 163 at 166–167; see also Parker (1963) 111 CLR 610 at 632. That prohibition does not mean, however, that the jury cannot be invited to draw an inference or a conclusion from the accused’s own acts that they were done with the intention which the Crown has to establish: Thomas (1960) 102 CLR 584 at 596–597; Kalajzich (1989) 39 A Crim R 415 at 459. The Crown bears the onus of persuading the jury to draw such an inference; all that the High Court has said is that it should never be suggested to the jury that the law supplies a presumption on the point which satisfies that onus and which the accused is therefore to rebut.

Constructive murder 2.28 The last of the fault elements sufficient for murder is established where the act or culpable omission causing death occurred during or immediately after the commission of some offence ‘punishable by imprisonment for life or for 25 years’. This is called constructive murder because the accused may be guilty of murder without intending any person’s death or injury and without realising that this was probable. 2.29 In the context of constructive murder, the Crown must establish that either the accused, or some accomplice with the accused, committed or attempted to commit (see 10.5) a crime punishable by imprisonment for life or 25 years. An accomplice is one who is also present at the time and who intentionally assists in committing a crime or intentionally

gives encouragement in the commission of that crime (see 10.33). In R v Jacobs and Mehajer, the Crown could not prove who had inflicted the fatal injuries. It was argued that the accused could not be convicted of constructive murder as the Crown needed to identify an act of the accused that caused the death charged. (The principles that determine when a person is held criminally responsible for the acts of an accomplice are discussed in Chapter 10.) R v Jacobs and Mehajer (2004) 151 A Crim R 452; [2004] NSWCCA 462 NSW Court of Criminal Appeal [The accused/appellants were charged with the murder of Shane Cole; robbery in company with infliction of grievous bodily harm upon the deceased; and robbery in company with wounding of another person. They had gone to the vicinity of a cafe to [page 117] look for the victim, who was a known supplier of drugs. On the account of a witness, Painter, who had agreed to give evidence in return for an indemnity for his part in the offence, Mehajer went into the cafe first, followed by Jacobs, and then by himself. Jacobs was holding a small man at the back of the cafe, who was sitting on the ground. Mehajer was at the back of the shop conducting a search. Painter went out of the café and on his return Jacobs was standing between two men on the floor. He heard someone say “where’s your money?” and heard the deceased reply that he did not have any. As Mehajer returned from the back of the cafe he punched the other man (the deceased) to the back of the head, with a ‘pretty strong’ blow, which caused him to slump to the ground. He did not see him move again. As they drove away there was a discussion about the phone and gold necklaces that had been taken. Jacobs had one phone, and he kept the other one. Painter said that he did not see any knife at the scene, and that he had only seen the deceased punched once. The deceased was treated by a neurosurgeon, who found that he had suffered a widespread traumatic subarachnoid haemorrhage, as well as a pulmonary oedema consistent with the aspiration of vomit while unconscious. The cause of death was blunt trauma to the head. The

trial judge directed the jury to consider constructive murder if they found that the accused did not have one of the other fault elements for murder, that is, if they did not intend to kill, did not intend to cause grievous bodily harm, or did not act with reckless indifference to human life, on the basis that the death occurred during the robbery. A further extract from the judgment of Wood CJ at CL is set out at 10.66.] Wood CJ at CL: … 185 [The trial judge] gave a general direction in relation to constructive murder: … murder is committed where the act causing the death of the deceased, is done during the commission by the accused, or some accomplice with him, of a crime punishable by imprisonment for 25 years and here the Crown relies upon proof of the crimes charged in count 2 and/or count 3. Each of those crimes charged in those counts, is in a category punishable by imprisonment for 25 years. 186 This was first applied to the foundational offence, which was the subject of Count 2 [that is (b) Robbery in company with infliction of grievous bodily harm upon the deceased, Shane Cole]: To establish the crime of murder here the Crown must prove the following: 1.

That there was a common purpose shared by the accused in company, to rob Shane Cole.

2.

That during the course of that robbery in company, grievous bodily harm was inflicted upon Shane Cole.

3.

That the infliction of such grievous bodily harm was a contingency, that is a possible happening, which the accused had in mind might occur during the robbery in company. The Crown does not have to prove that it was necessarily the accused whose case you are considering, who personally inflicted the grievous bodily harm. It is sufficient that the harm was occasioned either by that accused, or by another party to the enterprise. Provided the infliction of that

harm was a possible happening which the accused, whose case you are considering, had in mind as something that might occur during the robbery. 4.

The Crown has to prove that the infliction of that harm caused the death of Shane Cole. The Crown does not have to prove, members of the jury, that the act, or acts causing death was, or were done with an intent to kill, or indeed with intent to cause grievous bodily harm. But it must prove that such act, or acts, were voluntary not accidental. And it must prove that such act, or acts, was or were done, during the commission of robbery in company. When I say that it has to prove that the acts were voluntary, by that I mean that the act, or acts were conscious, deliberate, as opposed to accidental. I will come back to this question of causation in just a moment. But they are the elements that have to be proved, based upon the foundational crime charged in the second count. [page 118]

187 His Honour next applied the general direction in relation to the foundational crime charged in the third count [that is robbery in company with wounding of Shane Phillips], explaining that: The elements to be proved are the following: 1.

That there was a common purpose, shared in company, to rob Shane Phillips;

2.

That during the course of that robbery in company the accused or another party to that enterprise wounded Shane Phillips and during the course of that robbery in company with wounding the accused or another party to that enterprise caused grievous bodily harm to Shane Cole causing his death; and

3.

That the infliction of grievous bodily harm to Shane Cole during the robbery in company with wounding of Shane Phillips was a possible happening, a possible happening which the accused whose case you are considering contemplated might occur.

188 The Appellants submitted that the present was not a case where constructive murder (or felony murder as it was previously known) was available. This submission turns upon the proper interpretation of s 18 of the Crimes Act 1900. 189 It was asserted that, on its natural reading, the opening words to the section “murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged” govern the section, and mean that murder can only be established where it was the act or omission of the accused that caused the death. 190 It was further asserted that the category of constructive murder, which is brought within the section (in addition to cases of specific intention or reckless indifference to human life) by the closing words “or done in an attempt to commit, or during or immediately after the commission by the accused, or some accomplice with him or her” of a crime punishable for life or for 25 years, are directed to the commission of the foundational crime, and not to the act causing death. 191 At the outset it is to be observed that the first proposition that was advanced is somewhat startling, since if it is correct, then in a case of joint enterprise, where the parties shared an intention to kill or inflict grievous bodily harm, murder would only be committed by the accused whose act in fact brings about the death. 192 Such a proposition would fly in the face of long standing authority that a person may be found guilty of murder, although he or she did not commit the act bringing about death, so long as that person was acting in concert with the perpetrator. That was recognised in Osland v The Queen (1998) 197 CLR 316 at 341 to 351 and in McAuliffe v The Queen (1995) 183 CLR 108, and there are numerous examples in the case law, including for example R v Mohan [1967] AC 187 where offenders acting in concert have been convicted of murder, even thought [sic] the Crown is not able to prove which of them carried out the act causing death. 193 Prior to 1883, murder in New South Wales, was murder as defined in the common law. In the 13th Century, homicide was culpable if the death occurred during the commission of an unlawful act. In Foster’s Discourse of Homicide in 1762, the felony murder rule was relaxed to the extent that it was confined to the

case of a killing in the course of an act with intent to commit a felony. 194 This strict approach is illustrated by the case of R v Horsey (1862) 3 F & F 287; 176 ER 129 where the accused was charged with murder after setting fire to a stack of straw. There was no evidence that the accused had any idea of the presence of the deceased, who was sleeping in the stack and who was burned to death. The trial judge, Baron Bramwell, instructed the jury that where an accused, in the course of committing a felony, caused the death of a human being, that was murder, even though he did not intend it. [page 119] 195 This approach was criticised by those who disliked making death, occasioned during the course of a felony, murder when violence was neither likely nor intended. … 197 In New South Wales, the strict rule was ameliorated in 1883 in the Criminal Law Amendment Act. Section 9 of that Act expressly defined murder in the following terms: 9. Whosoever commits the crime of murder shall be liable to suffer death and murder shall be taken to be where the act of the accused or thing by him omitted to be done causing the death charged was done or omitted with reckless indifference to human life — or with intent to kill or inflict grievous bodily harm during or immediately after the commission by the accused or some accomplice with him of an act obviously dangerous to life or a crime punishable by death or penal servitude for life. Every other punishable homicide shall be taken to be Manslaughter. 198 This definition was reproduced in s 18(1)(a) of the Crimes Act 1900. Smart J in R v Downs [1985] 3 NSWLR 312 noted that in the 1883 Act the legislature had been at pains to specify (in s 9) any change to the common law concerning murder. Lee J pointed out in the same case (at 316) that the various acts resulting in death described in s 18(1)(a) were themselves all acts which at common law gave rise to murder. Relevantly his Honour at 318 stated:

In one respect, the terms of the section brought about a difference from the common law of murder and that was in regard to a killing during the commission of a felony. The accidental taking of life by a person committing (or about to commit) a felony of any kind was at one time murder at common law, but, as pointed out earlier, this was ameliorated as time [went] by and the felony had to be one dangerous to life and likely to cause death. Under s 18(1)(a) it would amount to murder if the felony was one punishable by penal servitude for life. This matter is dealt with at some length by Windeyer J in Ryan v The Queen (1967) 121 CLR 205 at 240–241. The definition of murder at common law was thus replaced by a definition in accordance with the subsection, but the subsection did no more than attach to an act of homicide states of mind (intent to kill or inflict grievous bodily harm, or reckless indifference) or descriptions (obviously dangerous to human life, or committed during or immediately after a felony punishable by death or penal servitude for life) which would, in any event, at common law have made the act of homicide murder. 199 As is discussed later in these reasons, it is a principle of long standing that a person may be found guilty of murder although he or she did not commit the act or acts which physically caused the death of the victim, provided that the [sic] or she was acting in concert with the perpetrator. 200 The wording of s 18 did not alter the operation of the common law rules of complicity. It is a general rule of statutory interpretation that a basic common law doctrine is not to be disturbed unless the statute expressly requires that result. … 203 There is nothing in the amended provision to disclose any intention to alter the common law principles of complicity. All that the Act did was to require a capital felony or one involving punishment by penal servitude for life, and to that extent, but only to that extent, it parted from the common law: cf R v Burke [1983] 2 NSWLR 93 per Miles J at 103. … 205 In this instance it is perfectly clear that the reference to “the accused” when used twice in s 18 is a reference to the accused

who is on trial and is not intended to give rise to the consequence that it must be his act, rather than the act of a person acting in concert, which causes death. 206 It is equally clear that the 1883 Act was passed to ameliorate the harsh common law approach to felony murder, and was not intended to restrict the principles of complicity, which were well entrenched in the 19th Century, so as to confine culpability for felony murder to the case of the offender whose act caused death. [page 120] 207 Later amendments to the Crimes Act do not require any different approach. … 208 The limited authority that exists in this regard also does not support the conclusion for which the Appellants contend. … … 213 Text writers also lend no support to the Appellant’s submission. … 215 Finally, there are any number of cases of felony murder where the act causing death was that of an accomplice and not the accused, where an interpretation of s 18 advanced by the Appellants has not been applied. 216 The Appellants’ primary submission is accordingly not made good. [Sperling and Kirby JJ agreed with Wood CJ at CL. Appeal dismissed.]

The fault element in constructive murder 2.30 It is clear that to secure a conviction on the basis of constructive murder, the Crown does not need to prove that the accused intended to kill the accused or foresaw the possibility of death. All that is required is that the Crown can establish the ‘foundational’ offence; see R v IL [2016] NSWCCA 51 extracted on this point at 10.67. For example, if the Crown can prove the physical and fault elements for ‘assault with intent to rob with wounding or the infliction of

grievous bodily harm’ contrary to s 96 of the Crimes Act (R v Thurston [2004] NSWCCA 98), or robbery with wounding contrary to s 98 of the Crimes Act (Ryan v R (1967) 121 CLR 205), and that death, albeit unintended and unforeseen, was caused during that offence, then that is sufficient. 2.31 The New South Wales Law Reform Commission has reviewed the history of constructive murder and made recommendations for limiting the scope of the doctrine (see Complicity, Report 129, Chapter 5). Its recommendations are set out at [5.83] of the report and are as follows: Recommendation 5.1 So much of s 18(1) of the Crimes Act 1900 (NSW) as relates to constructive murder should be repealed, and replaced by a statutory provision that provides as follows (1) A person (P) shall be liable for murder and punishable accordingly, where: (a) P commits an act that causes the death of V; (b) P’s act was done in an attempt to commit an offence or in the course of or during or immediately after the commission of an offence for which provision is made in the laws of NSW that is punishable by imprisonment for life or for a term of imprisonment of 25 years or more (the foundational offence); (c) P’s act was one that, in all of the circumstances, including the nature of the foundational offence, [viewed objectively] was likely to endanger human life. (2) The foundational offence shall not include common law offences where the penalty is at large, or manslaughter. (3) The foundational offence shall include one in respect of which P was a principal offender, as well as one in which P was providing assistance in relation to its commission or attempted commission by another person.

[page 121]

(4) P shall be liable to be convicted of murder and sentenced accordingly in the circumstances outlined, whether or not: (a) P intended to kill V or to cause V bodily harm; (b) P knew or foresaw that by his or her act he or she was likely to do so; or (c) P knew or foresaw that his or her act was likely to endanger human life. Recommendation 5.2 Section 18(2)(a) of the Crimes Act 1900 (NSW) should be amended by deletion of the words “which was not malicious, or”.

2.32 The MCCOC was critical of the concept of constructive murder and recommended that it should not be part of the criminal law. MCCOC, Fatal Offences Against the Person Model Criminal Code, Discussion Paper, Chapter 5, June 1998, pp 59–63 The common law recognises two forms of constructive murder: felony-murder and escape-murder. Both involve an unintentional killing by an act of violence. In the case of felony-murder, such act is committed during the commission of a felony other than abortion or attempted abortion. The meaning of the word “felony” was at common law every species of crime for which the punishment could involve forfeiture of land, goods or death (‘except petty larceny and mayhem’). Later felonies were categorised by statute as serious crimes and included murder, manslaughter, burglary, housebreaking, larceny, bigamy and rape. In the case of escapemurder, the act of violence is committed in an effort to resist, prevent or escape from lawful arrest and custody. All jurisdictions have replaced the connection to traditional felonies with a narrower statutory version of the same concept. So it is not accurate to continue to describe it as the ‘felony-murder’ rule — “constructive murder” is more appropriate. In the common

law jurisdictions the scope of the offence is restricted by limiting the type of crimes which give rise to the operation of the offence. For instance, in New South Wales it only applies if the unintentional killing took place in the course of the commission of a crime punishable by imprisonment for a period of 25 years or life. … … [T]he old “felony-murder” rule is specifically abolished. … Constructive murder has been the subject of criticism. Such criticism stems from the fact that these offences involve the imputation of the fault element required for murder by reason of the coincidence of the death occurring in the context of other criminal conduct — hence the description ‘constructive’ murder. If these elements exist, a murder conviction follows as a matter of course even if there is no evidence of intention or recklessness. Constructive murder was abolished in England 40 years ago. The Canadian Supreme Court has found the doctrine to be contrary to the Canadian Charter of Rights and numerous law reform bodies have recommended its abolition. Despite the objections, the doctrine has survived in most jurisdictions. Society has little sympathy for persons who kill in the course of the commission of a serious crime or while attempting to escape arrest and custody in circumstances of violence. Supporters of constructive murder point to its deterrent value in defending its existence. This, however, overlooks the important fact that such killings are not intended or foreseen and therefore not able to be deterred. At best the doctrine can deter the commission of the felony or the attempt to escape, but not the killing itself. [page 122] The lack of intention or other culpable state of mind for murder on behalf of the person committing the felony or seeking to escape underlies the inappropriateness of this doctrine. To equate accidental killings with murder is contrary to the … fault-based approach to determining culpability. In as far as the law of fatal offences is concerned, persons who kill while committing a felony or attempting to escape should be treated in the same way as any other person. If they intended to kill or are reckless as to death they will be convicted of murder pursuant to the existing rules regarding intentional and reckless killing. In the absence of these

circumstances — where the death is truly accidental — murder should not be an issue. In these cases, manslaughter by gross negligence may be an appropriate charge but in any event the defendant can be prosecuted for the offence he or she intended to commit.

The requirement of malice 2.33 Section 18(2)(a) provides: No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.

When the section was enacted, s 5 of the Crimes Act contained a definition of the word ‘malicious’. That section was repealed in 2008 and the term ‘malicious’ was no longer used for offences against the person or property. The issue of the meaning of the term in s 18(2)(a) arose in R v IL, extracted on another point at 10.67. The facts briefly were that the accused was charged with murder and manslaughter arising from the death of her co-offender in a fire as a result of their joint attempt to manufacture a prohibited drug. The fire occurred by the ignition of a ring burner upon which the ‘cook’ was taking place, but there was no evidence as to who ignited the burner. The Crown relied upon constructive murder, the foundational offence being the manufacture of a prohibited drug. Because the Crown could not specify an act of the accused causing the death, it relied upon joint criminal enterprise. At a trial the judge directed the jury to acquit the accused on all charges. The Crown appealed to the Court of Criminal Appeal against the directed acquittals under the provisions of the Crimes (Appeal and Review) Act 2001. R v IL [2016] NSWCCA 51 NSW Court of Criminal Appeal Simpson JA: …

72. The orders available to this Court on an appeal under s 107(2) are set out in sub-ss (5) and (6) of the Appeal and Review Act. This Court may affirm or quash the acquittal (sub-s (5)); if it quashes the acquittal, it may order a new trial in such manner as it thinks fit (sub-s (6)). The logical consequence of the conclusions that, in respect of the murder and manslaughter counts, a wrong test was applied, resulting in acquittals that were erroneous in law, is an order in each case quashing the acquittal. It will then be necessary to consider whether, pursuant to sub-s (6), to order a new trial. [page 123] 73. That is a discretionary decision. Senior counsel for the respondent raised an interesting, and novel, argument against an order for a new trial on the count of murder. (The argument does not apply to the count of manslaughter.) 74. The argument depended upon the terms of s 18(2)(a) of the Crimes Act, set out above. To repeat, s 18(2)(a) provides: “(2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.” 75. The exception for acts or omissions for which the accused had lawful cause or excuse can be put to one side. It has no present application. The central proposition advanced on behalf of the respondent was that, on no view of the meaning of “malicious”, could it be said that the act that caused Mr Lan’s death was malicious. Although it was never clearly articulated, it seems that the consequential proposition advanced was that, since the Crown could not establish that the act that caused Mr Lan’s death was done maliciously, it would be futile for this Court to order a new trial on the count of murder since any such trial would necessarily result in the respondent’s acquittal. If the central proposition is correct, futility of ordering a new trial would be a powerful discretionary reason for declining to do so, and for affirming the acquittal. Alternatively, the argument may have been directed to the proposition that the acquittal on the murder count was justified for a reason other than that given by the trial judge, and therefore should be affirmed. The argument in support of the consequential

proposition was raised for the first time in response to the Director’s appeal. 76. The essential proposition advanced on behalf of the respondent, as I understand it, may be reformulated in the following way: to come within s 18(1)(a), the act that causes death must be shown by the Crown to have been done maliciously; there was no evidence that the ignition of the ring burner was done maliciously; accordingly, the Crown is unable to succeed in proving an essential element of its case; the consequence is that (although for a reason other than those given by the trial judge) the acquittal ought to be affirmed; alternatively if the acquittal at first instance was incorrectly entered because it was given on an erroneous legal basis, this Court should nevertheless decline to order a new trial (on the basis that a new trial would be, at least, a futility, or, at worst, an abuse of process). 77. The argument hinges on the meaning of “maliciously” as it appears in s 18(2)(a). One complicating circumstance immediately emerges. In 1901, when s 18 was enacted (not precisely in its present form, but not different in a way that is material to the present argument), the Crimes Act contained, in s 5, an extended definition of “maliciously”. It could not be said that the definition cast a great deal of light on the question of the meaning of the word, or the concept. Section 5 was in the following terms: “Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and every

indictment and charge where malice is by law an ingredient of the crime.” … [page 124] 80. Section 5, when in force, was of general application. It has been observed that, so far as it related to murder within s 18, s 5 had no operation to any of the categories mentioned above other than the fourth, that is constructive (felony) murder: Royall v The Queen [1991] HCA 27; 172 CLR 378 at 454 per McHugh J; Coleman at 474 per Hunt J. 81. That was because the other categories of murder specified in s 18 were provable by evidence that the accused person had the relevant state of mind — reckless indifference to human life, intent to kill, or intent to inflict grievous bodily harm. The necessity to prove the relevant state of mind left no room for proof of a further, alternative or different, state of mind called “malice”. 82. By the Crimes Amendment Act 2007 (NSW), s 5 was omitted from the Crimes Act with effect from 27 September 2008: see Sch 1, cl 2. By the same amending Act, cl 65 was inserted into Sch 11 of the Crimes Act. Schedule 11 deals with “Savings and Transitional Provisions”. Clause 65 provides: “The repeal of section 5 of this Act by the Crimes Amendment Act 2007 does not affect the operation of any provision of this Act (including a repealed provision) that refers to ‘malicious’ or ‘maliciously’ or of any indictment or charge in which malice is by law an ingredient of the crime.” 83. The repeal of s 5 took place in the context of a general modernisation of provisions of the Crimes Act that had included “malice” as a fault element. From many such provisions (but not including s 18), the words “maliciously” and “malice” were omitted, and either “recklessly” or “intentionally” (or their noun counterparts) substituted. In his second reading speech in support of the proposed repeal, the Attorney General explained the revision as follows: “The bill removes the archaic fault element of

‘maliciously’ from the Crimes Act and replaces it with the more modern fault elements of ‘recklessly’ and ‘intentionally’ where appropriate …” He read out cl 5 of the Bill and went on: “Members can imagine the difficulty in explaining this archaic formulation to juries who may be required to determine very serious cases based on this definition. The confusing and outdated nature of the definition has been raised by several judicial officers over a period of 50 years. For example, as long ago as 1955, the Honourable Justice Fullagar of the High Court in Mraz v R (1955) 93 CLR 493 described the definition of malice in the Crimes Act as ‘a mere question-begging definition’. The term ‘recklessly’ which will largely replace ‘maliciously’ is well-known to the criminal law and it is not proposed to codify or define this term at this time.” (New South Wales Legislative Council, Parliamentary Debates (Hansard), 26 September 2007 at 2318) (Notwithstanding that stated intention, less than two months later, the legislation inserted s 4A into the Crimes Act. Section 4A is as follows: “4A Recklessness For the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge.”) 84. The consequences of the repeal of s 5, without the deletion of the concept of “malicious” from s 18(2)(a), has been regarded as something of a mystery. In Chen v R [2013] NSWCCA 116, at [62] Button J labelled “remarkable” the fact that the concept of malice remained in s 18, after the deletion of the statutory definition. Button J said: I know of no decision of this Court as to what s 18(2)(a) should now be taken to mean. It may be that Button J’s attention was not drawn to Sch 11, cl 65.

However, in Batcheldor, Hidden J (who expressly referred to cl 65) endorsed Button J’s observation. 85. In my opinion, cl 65 is of significance, as I will explain shortly. [page 125] 86. It was not initially clear whether the respondent’s position was that the repeal of s 5 wrought a change in the proper construction to be attributed to s 18(2)(a), or that “malicious” in that context retained its original meaning even after the repeal. That question was eventually clarified during the course of oral argument, when senior counsel said: “However, what needs to be grappled with in my submission is, what maliciousness means now that s 5 has been repealed.” I take this to be an assertion that s 18(2)(a), since 2008, has a meaning different from that which it had prior to 2008. 87. I am unable to accept that proposition. Some meaning must be given to cl 65 of Sch 11, opaque as it might appear to be. 88. In my opinion, the answer is to be found in the Attorney General’s second reading speech. The repeal of s 5 took place in the context of the general (but not complete) excision of “malice” and “maliciously” from the Crimes Act, and their replacement with less “archaic” language. For some reason, “malice” in s 18(2)(a) escaped that scalpel — hence, what I read as the preservation (in cl 65) of s 5 for the specific purpose of s 18(2)(a) (and any other provisions that contained references to “malice” that also escaped the legislative scalpel). If that is correct, “malicious” in s 18(2)(a) is to be read and interpreted as though s 5 had not been repealed. 89. It is then necessary to attempt to understand what “malicious” means in s 18(2)(a), in such light as the definition provided by s 5 casts. 90. As mentioned, Hunt J in Coleman pointed out the various ways in which s 5 might be read. Unwise as it might seem to attempt an analysis or deconstruction of s 5, I see no way to avoid that potentially unrewarding exercise. 91. In my opinion, the purpose of s 5 was to adopt and then extend

the ordinary understanding of “malice”. Adoption of the ordinary meaning follows from the use of the word “malice” itself in the opening phrase. The fact that “malice” is twice used in the definition of “maliciously” indicates that it was used, and intended to be understood, in its conventional legal sense. I will return to consider what that conventional sense is. Omitting the subordinate clauses, the section would have read: “Every act done of malice … shall be taken to have been done maliciously …” This is in accord with what Fullagar J said in Mraz. The concept is then, by the subordinate clauses, extended to acts done: “… without malice, but with indifference to human life or suffering, or with intent to injure … in property or otherwise … and … without lawful cause or excuse, or done recklessly or wantonly …”, which acts are also: “… taken to have been done maliciously …” 92. It seems to me that the effect of s 5 is to declare that acts done with a variety of states of mind (other than those that come within the ordinary understanding of “malice”) are to be taken to have been done maliciously. Broken up into its component parts, the section begins by stating (tautologically) that: “Every act done of malice … and without lawful cause or excuse … shall be taken to have been done maliciously.” The section goes on to declare that certain acts done without malice shall nevertheless be taken to have been done maliciously. Those acts are: acts done with indifference to human life or suffering (and without lawful cause or excuse); [page 126] acts done with intent to injure either a person or a corporate body (in property or otherwise) (and without lawful cause or excuse) (although it is difficult to see how an act done with

intent to injure could be seen as other than malicious); acts done recklessly or wantonly. (cf Coleman, p 472). Thus, an act that comes within any of those descriptions (but done without malice) is, by s 5, taken to have been done maliciously. 93. In Coleman, Hunt J explained “recklessness” (at 475) in the following way: “… in statutory offences other than murder, the degree of recklessness required in order to establish that an act was done maliciously was a realisation on the part of the accused that the particular kind of harm in fact done (that is, some physical harm – but not necessarily the degree of harm in fact so done) might be inflicted (that is, may possibly be inflicted) yet he went ahead and acted.” (italics in original; quoted by Beazley JA (as the President then was) in Blackwell v R [2011] NSWCCA 93; 81 NSWLR 119 at [68]) 94. These conclusions bring the debate back to the identification of the act relied upon by the Crown as the act causing death. That, it will be remembered (see [11]), was the act of igniting the ring burner. (That, in the circumstances of this case, where that act was an integral, but possibly relatively minor, part of the whole enterprise, might be an oversimplified approach. A more nuanced approach would suggest that Mr Lan’s death was not caused by a single act, but was a result of a series of acts, culminating in the ignition of the burner, the series of acts including all of the acts involved in the preparation for the manufacture, and the manufacture, of the drugs. However, for present purposes, it is necessary to adhere to the manner in which the Crown presented its case in the Supreme Court.) 95. Once the issues are so stated, in my opinion the outcome is clear. At the very least, it would be open to a jury to conclude that the ignition of the ring burner, in the circumstances in which it took place, was done recklessly. (An act done recklessly is expressly within s 5.) It does not appear that s 5 requires the Crown to prove that an act done recklessly (or wantonly) was also done without lawful cause or excuse, as is necessary with respect to the

first and second categories of non-malicious acts that are taken to have been done maliciously; but, even if the absence of lawful cause or excuse is a requirement, it is not an issue in the present case, because there can be no suggestion that, in the circumstances, the act was done otherwise than without lawful cause or excuse. In case it is necessary to explain why it would be open to a jury to conclude that that act was done recklessly, reference may be made to some of the circumstances. A plainly dangerous chemical operation was being undertaken, in a confined space, in wholly unsuitable premises, with primitive equipment. That emerges clearly from the expert evidence in the trial. 96. Ironically, perhaps, my conclusion concerning the interpretation of “malicious” in s 18(2)(a) does not depart in any material way from that proposed on behalf of the respondent. In written submissions the following was put: “60. The respondent submits that with s 5 of the Crimes Act repealed, an act is not malicious within s 18(2) unless it is proved to be intentional or reckless as to consequences: R v Coleman … R v Cunningham [1957] 2 QB 396. 61. Alternatively, the respondent submits an act is not malicious unless it is an act of serious violence or one which clearly endangers life, in accordance with the common law attribution of malice in felony murder.” (italics added) 97. It would clearly be open to a jury to conclude that the ignition of the burner was done recklessly (even without the explanation given by s 4A, inserted in 2008). [page 127] 98. If I am wrong in concluding that cl 65 of Sch 11 preserves, for the purposes of s 18(2)(a), the application of s 5, then a question remains as to the meaning of “malicious” in that subsection, absent the enlightening glow of s 5. “Malicious” then must be given its conventional, legal, meaning. In R v Cunningham [1957] 2 QB 396, it was held: “In any statutory definition of a crime, malice must be

taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (ie, the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). It is neither limited to nor does it indeed require any ill will towards the person injured …” These words were taken from C S Kenny, Outlines of Criminal Law, (1st ed 1902, Cambridge University Press) (repeated in the 1952 edition), and expressly endorsed by the court. The court summarised by saying: “In our opinion the word ‘maliciously’ in a statutory crime postulates foresight of consequence.” In Coleman, it was held that it was not necessary for the Crown to prove that foresight was of the probability of consequences; foresight of the possibility was sufficient. 99. In R v Rushworth (1992) 95 Cr App R 252, it was held that a direction to a jury that a defendant was acting maliciously if he was acting deliberately and was aware that some physical harm might, not would, result was correct. 100. R v Safwan (1986) 8 NSWLR 97 concerned the adequacy of directions given to a jury in respect of the meaning of “maliciously” as the word appeared in s 33 of the Crimes Act as it then stood. Section 33 created various offences of wounding, infliction of grievous bodily harm, shooting or attempting to discharge loaded weapons at any person, in each case done maliciously, and with one of a number of specified intentions. The trial judge directed the jury in terms of s 5. He interpolated an explanation of “malice” by saying “that is, with evil intent …”. This Court (Street CJ, Lee and McInerney JJ) approved the explanation, but considered that the direction could have been simplified by deletion of parts of s 5 not applicable to that case. The direction their Honours preferred was: “… every act done of malice; that is, with evil intent, or with intent to injure some person or persons, and in such

case without lawful cause or excuse, shall be taken to have been done maliciously within the meaning of the Act.” 101. It is apparent that their Honours were construing “malice” as it appeared in s 5, but without the expansionary content of s 5 — in other words, the explanation given to “malice” was an explanation of that word in its conventional, legal, sense. 102. While the words “of evil intent” might now seem dated — even “archaic” — what can be accepted is that the word “malice” and its counterparts are to be given a broad meaning. They are well able to encompass a dangerous act undertaken in the course of an illegal drug manufacturing enterprise in inadequate premises. 103. Accordingly, whether “malicious” in s 18(2)(a) is to be interpreted in the light of s 5, or absent that light, the respondent’s submission must fail.

CONCLUSION 2.34 This chapter considered the law relating to murder. It is clear that it is not the case, as many people may believe, that any unlawful killing is murder. Murder is a crime, defined by law, and a person is guilty of murder only if all the elements [page 128] are present: that is, it was a conscious and voluntary act or culpable omission that caused the death; and, at the time of performing the act or failing to act, the accused intended the victim to die, intended to cause grievous bodily harm, or realised that he or she would probably cause the victim’s death; or the act that caused the death was done during or immediately after the accused committed some other crime punishable by life or 25 years’ imprisonment. Any other killing is not murder, no matter how reprehensible or objectionable the circumstances. However, it may be

manslaughter — at a murder trial, a jury may bring down an alternative verdict of manslaughter (see 3.7). 2.35 This exploration of the law of murder identified the process which must be followed when deciding whether any offence has been committed, that is, it must be determined whether each of the elements of the particular offence has been proved. The discussion also shows how the courts interpret and apply the common law in the context of statutes written by parliament. It is now possible to take this understanding of the principles of law and legal reasoning to identify the law relating to manslaughter, and other offences against the person.

DISCUSSION QUESTIONS 2.36 1.

Assume that the following facts are true and can be proved. Consider Dave’s liability for murder in this case. Dave was a waiter. He was asked to serve at a dinner party organised by Crystal and Ricchi. At the party, held at the mansion of the fabulously rich couple, Dave discovered that Crystal had a weakness not just for recreational drugs and drink, but also for beautiful young men. Crystal took a fancy to him. They started having an affair. Dave got used to the nice presents that Crystal showered on him but he knew that it could not last forever. Dave proposed to Crystal but matters did not go according to plan. While Crystal was away on holiday, she had met another beautiful young man — she was happy to keep a few young men in her life. This was not in Dave’s plans and he became so

enraged that he vowed revenge. He decided to arrange to have her ‘roughed up’ to teach her that she could not treat him like that. Unable to find a person to do his dirty work, Dave went to Kill-RDogs and bought a trained attack dog; at the time the kennel owner said ‘Be careful with these dogs, they are not pets, they will do someone a serious injury, and could even kill someone.’ That night, when Crystal was coming back from her evening swim, Dave set the dog onto her. The dog was vicious (as it was trained to be) and bit her about the face and body. Crystal passed out and Dave called the dog off and disappeared. Crystal woke the next morning and, dazed, took herself home and tried to clean her wounds in the shower. After a couple of days, infection set in, causing inflammation and pain. To kill the pain she took to drinking scotch and smoking marijuana. She eventually called her doctor, who failed to [page 129] diagnose her infection as a serious condition but who prescribed antibiotics and told her to have plenty of sleep. She slept for many days, waking up occasionally to take her prescribed pills, her drugs and her alcohol. One day, in the middle of an infection/alcohol/drug-induced haze, she decided that something was seriously wrong. She called her specialist but she was unable to contact him so she left a message for him to contact her. A few more days passed. Crystal (when conscious) was by now getting a bit hysterical as she was afraid of scars marring her beauty. Her specialist finally called and said that she required surgery but there was a risk

that she would be left with permanent scarring. Crystal refused the treatment and, as a result, the infection became worse and she subsequently died. At the autopsy it was found that had her doctor diagnosed and treated her properly in the first place, she would have had a good chance of recovery without any permanent injury or disability. Further, the delay before the specialist contacted her had exacerbated the situation. 2.

Assume that Kelly has committed an offence: (a) contrary to s 35 of the Crimes Act; or (b) contrary to s 46 of that Act. The victim has now died. Consider what circumstance would make Kelly now liable for murder under each of the above sections.

3.

D was a member of a gang which tied V to a pillar in an abandoned warehouse and sexually assaulted him. A gang member then gagged V to prevent him from crying for help; in his struggle to escape, after the gang had fled, V accidentally choked to death. Has D committed murder?

[page 130]

3 Voluntary manslaughter INTRODUCTION 3.1 Chapter 2 deals with the law of murder. Manslaughter is another offence that may apply when one person unlawfully kills another. The physical elements of murder and manslaughter are the same: the accused must have committed some act or omitted to perform some act that caused the death of the victim. The major difference between murder and manslaughter lies in the fault or mental elements (see Flow Chart 2-1 at 2.1). 3.2 As we have seen, to be guilty of murder the accused must have acted with one of the following states of mind: an intention to kill; an intention to cause grievous bodily harm; a reckless indifference to human life; or the killing must have occurred during or immediately after the commission of some other offence punishable by life or 25 years’ imprisonment. In the offence of manslaughter there may or may not be present any one of the three states of mind for murder (intention to kill, intention to cause grievous bodily harm, and reckless indifference to human life), but the fourth category (death caused at the time of another offence punishable by life or 25 years) does not arise. There are two categories of manslaughter. The first, discussed in this

chapter, is ‘voluntary manslaughter’. Voluntary manslaughter applies where a fault element sufficient for murder is present, but the accused is entitled to a conviction of the lesser offence of manslaughter because of the circumstances of the killing. There are three statutorily prescribed circumstances where killing, although intended or foreseen, is treated as voluntary manslaughter rather than murder: 1.

where there is a reasonable possibility that the killing was provoked;

2.

where the accused acted under a substantial impairment due to an abnormality of mind; and [page 131]

3.

where there is a reasonable possibility that the killing resulted from excessive self-defence.

It should be noted that there is no onus on the accused to prove a defence in 1 or 3 above. Rather, if the evidence raises the issue of provocation or self-defence, the Crown must prove beyond reasonable doubt that the killing did not take place in those circumstances. In 2 above the accused has the onus of proving, on the balance of probabilities, the defence of substantial impairment. Infanticide is a separate offence with penalties similar to those for voluntary manslaughter. Infanticide is discussed at 3.43–3.45 below. 3.3 The second category of manslaughter is ‘involuntary manslaughter’, discussed in Chapter 4. Manslaughter is involuntary if it is an unlawful killing in circumstances where none of the fault elements for murder is present. There are three types of involuntary manslaughter: 1.

manslaughter by an unlawful and dangerous act;

2.

manslaughter by criminal negligence; and

3.

manslaughter arising from a homicide that occurs during a joint criminal enterprise.

The principles for determining liability for manslaughter where a homicide occurs during a joint criminal enterprise are considered at 10.33. 3.4 There is another category of homicide additional to murder and manslaughter contained in s 25A of the Crimes Act 1900 (NSW) (‘the Crimes Act’). This is an offence of assault causing death. It will be dealt with in Chapter 4. 3.5 Therefore, there are five forms of unlawful homicide: (1) murder; (2) voluntary manslaughter (where murder is reduced to manslaughter because of extreme provocation, substantial impairment, or where the accused used excessive force in self-defence); (3) infanticide (where what would otherwise be murder is treated as a lesser offence because of disturbance to the mother’s mind by reason of certain specific factors related to childbirth); (4) involuntary manslaughter; and (5) an assault causing death. 3.6 Manslaughter is not defined in the Crimes Act. Section 18, after giving the definition of murder, states at subs (1)(b): ‘Every other punishable homicide shall be taken to be manslaughter.’ Section 24 sets out the punishment for manslaughter: 24 Manslaughter punishment Whosoever commits the crime of manslaughter shall be liable to imprisonment for 25 years: Provided that, in any case, if the Judge is of the opinion that, having regard to all the circumstances, a nominal punishment would be sufficient, the Judge may discharge the jury from giving any verdict, and such discharge shall operate as an acquittal.

3.7 In any case where the Crown alleges murder a jury is entitled to find the accused not guilty of murder but guilty of

manslaughter (see R v Downs (1985) 3 NSWLR 312; Beavan v R (1954) 92 CLR 660). The trial judge is not obliged to leave [page 132] manslaughter to the jury if there is no reasonable basis for such a verdict. However, if there is a reasonable basis for a verdict of manslaughter, the trial judge must direct on manslaughter, irrespective of how the defence case was conducted (R v Schneidas (No 2) (1981) 4 A Crim R 101). In a trial for murder, the jury should only be asked whether they find the accused guilty or not guilty of manslaughter if they have already found the accused not guilty of murder (Stanton v R (2003) 198 ALR 1). 3.8 We can now turn to the statutory partial defences that, if they arise, may result in an accused person who has killed another with a fault element for murder being convicted, instead, of manslaughter. The partial defences are extreme provocation, substantial impairment due to abnormality of mind, and excessive self-defence. Although these issues are generally referred to as ‘partial defences’, it should be noted that the only true defence arises on the issue of substantial impairment because it is only in respect of that issue that the accused has an onus of proof on the balance of probabilities. The Crown must disprove provocation and self-defence if those issues arise on the evidence. There is also the offence, akin to voluntary manslaughter, of infanticide.

EXTREME PROVOCATION Introduction 3.9 Before 13 June 2014 the law of provocation in this state was set out in s 23 of the Crimes Act and to a very large measure represented the common law. After that date a new

s 23 was inserted into the Crimes Act and a new defence to murder was created: that of extreme provocation: see Crimes Amendment (Provocation) Act 2014. The new defence substantially limits the availability of provocation as a defence to murder. In order to understand the important changes to this area of the law it is necessary to compare the present law with that as it was before the new defence was enacted. It should be noted that the defence of extreme provocation only applies to a murder that occurred after the date of the change of the law, see s 23. 3.10 Section 23 of the Crimes Act now provides: 23 Trial for murder—partial defence of extreme provocation (1) If, on the trial of a person for murder, it appears that the act causing death was in response to extreme provocation and, but for this section and the provocation, the jury would have found the accused guilty of murder, the jury is to acquit the accused of murder and find the accused guilty of manslaughter. (2) An act is done in response to extreme provocation if and only if: (a) the act of the accused that causes death was in response to conduct of the deceased towards or affecting the accused, and (b) the conduct of the deceased was a serious indictable offence, and (c) the conduct of the deceased caused the accused to lose self-control, and (d) the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased.

[page 133] (3) Conduct of the deceased does not constitute extreme

provocation if: (a) the conduct was only a non-violent sexual advance to the accused, or (b) the accused incited the conduct in order to provide an excuse to use violence against the deceased. (4) Conduct of the deceased may constitute extreme provocation even if the conduct did not occur immediately before the act causing death. (5) For the purpose of determining whether an act causing death was in response to extreme provocation, evidence of self-induced intoxication of the accused (within the meaning of Part 11A) cannot be taken into account. (6) For the purpose of determining whether an act causing death was in response to extreme provocation, provocation is not negatived merely because the act causing death was done with intent to kill or inflict grievous bodily harm. (7) If, on the trial of a person for murder, there is any evidence that the act causing death was in response to extreme provocation, the onus is on the prosecution to prove beyond reasonable doubt that the act causing death was not in response to extreme provocation. (8) This section does not exclude or limit any defence to a charge of murder. (9) The substitution of this section by the Crimes Amendment (Provocation) Act 2014 does not apply to the trial of a person for murder that was allegedly committed before the commencement of that Act. (10) In this section: “act” includes an omission to act.

3.11 The new defence came about as a result of consideration of the law of provocation by the Legislative Council’s Select Committee on the Partial Defence of Provocation. The Committee was founded as a response to a case in which a male accused was found not guilty of murder

on the basis of provocation by his estranged wife. The accused cut her throat after she had allegedly told him that she did not love him and was in love with another person. The Committee was not unanimous on whether the defence of provocation should be abolished and, therefore, recommended that the defence be limited. The main reason for retaining the defence was to assist women who were victims of long-standing domestic violence and who might not be able to rely upon self-defence. Particular difficulties identified by the Committee with provocation as it had existed were: (a) that it could be used in cases where a partner simply wished to leave a relationship; and (b) it arose in cases of a non-violent sexual approach (normally in cases of a homosexual advance). The second reading of the Bill by the Attorney General took place on 8 May 2014 and will be referred to from time to time.

The two-part test 3.12 In the earlier editions of this book there was a reference to provocation having a two-part test as follows: 1.

There must be evidence that the act or omission was the result of a loss of self-control on the part of the accused, that loss of self-control having been induced by any conduct of the victim. This can include grossly insulting words or gestures towards or affecting the accused; and [page 134]

2.

There must be evidence that the victim’s conduct was such that it could have induced an ordinary person in the accused’s position to have so far lost self-control as to form an intent to kill, or to inflict grievous bodily harm upon, the victim. The conduct of the victim can have occurred immediately before the act or omission causing death or, depending on the circumstances, at

any previous time. The test is not that an ordinary person would have killed the victim, but that an ordinary person could possibly have formed the intent to kill or cause grievous bodily harm to the victim. It is the ‘ordinary person’ test that causes the greatest difficulty in this area of the law. In order to disprove provocation the Crown must prove beyond reasonable doubt that one or other of the parts of the test set out above did not apply at the time of the killing. 3.13 The text then went on to summarise the law of provocation as follows: The conduct or words of the victim need not have occurred immediately before the response of the accused that caused the death. The provocation may have occurred at some previous time. It may be a course of conduct over an extended period of time, and may include a course of conduct over a period of time together with other conduct immediately before the act causing death. There must be a causal connection between the conduct of the victim and the accused’s loss of selfcontrol. The following three factors must be considered together: 1.

that the conduct was extremely hurtful to the accused because of his or her age, sex, race, ethnic or cultural background, physical features, personal attributes, personal relationships or history;

2.

the words or conduct in question taken as a whole; and

3.

the history of the relationship between the accused and deceased.

The third of these factors is especially significant in cases where the accused was the victim of sustained domestic violence. Responses caused by provocation must be distinguished from responses motivated by hatred or revenge. When applying the objective ‘ordinary person’ element of the two-part requirement for provocation, the jury must be instructed that an ‘ordinary person’ is one who has the minimum powers of self-control expected of an ordinary person who is: 1.

not intoxicated; and

2.

the same age and consequent level of maturity as the accused.

Although intoxication is not relevant when applying the objective part of the test, it can be relevant on the issue of whether the accused may have actually lost self-control as a result of provocation. 3.14 Apart from the words underlined in the preceding two paragraphs, the law of provocation has not changed. The words in italics in the paragraph above presumably remain as relevant in determining the ordinary person test (see 3.17). [page 135]

Loss of control after sustained period of abuse 3.15 There is no change as to when the provocative conduct must have occurred. Chhay, below, remains good law. Section 23(4) notes that the provocative conduct does not have to occur immediately before the killing. R v Chhay (1994) 72 A Crim R 1 NSW Court of Criminal Appeal

[The appellant was convicted of the murder of her husband following a long history of domestic violence. The night before his death there had been a noisy argument between them. The trial judge found that the appellant had cut her husband’s throat and chopped him with a meat cleaver sometime between 5 and 6 am while he was on the lounge room floor, either asleep or dozing. The appellant’s version was that he attacked her with a knife or cleaver and that during a struggle she gained possession of the weapon, which she used to kill him. Her primary defence was selfdefence but she also raised provocation.] Gleeson CJ: … The history of the common law on the subject of provocation as a partial defence to a charge of unlawful homicide, reducing what would otherwise be murder to manslaughter, has been examined at length by the High Court in Parker v R (1962–63) 111 CLR 610, Van Den Hoek v R (1986) 161 CLR 158, and Stingel v R (1990–91) 171 CLR 312. As Windeyer J pointed out in Parker (111 CLR at 650), the law on this subject emerged from a multiplicity of rulings in single instances, which in turn were given over a period during which the law of culpable homicide underwent considerable change and development. The modern law recognises provocation as a circumstance in which an accused person is ‘less to blame morally than for what he does deliberately and in cold blood’ (Parker, 111 CLR at 651). This has been explained as a concession to human frailty. The concept of loss of self-control reflects the idea, fundamental to the criminal law, and related historically to religious doctrine, that mankind is invested with free will, and that culpability consists in the abuse of that faculty. The capacity to distinguish between right and wrong, and to choose between actions, or between action and inaction, is central to our notions of moral and criminal responsibility. Legal principles concerning voluntariness and intent, insanity and diminished responsibility, are formulated in terms that assume such a capacity in ordinary people acting in ordinary circumstances. There are those who find this unscientific (eg Professor Blakemore, Professor of Psychology at Oxford University, in The Mind Machine, BBC, London, at 257 and 269–270, says that the human brain is a machine, that all our actions are the product of the brain, and that even when we feel ourselves to be in control of our actions, that feeling is itself a

product of the brain). On the other hand, a judge of this Court, in a recently-published and scholarly work (DH Hodgson, The Mind Matters, Oxford University Press, Oxford, at 170 et seq) observes how deeply embedded in our language, our attitudes and our laws is the assumption that our volitions determine our actions. Devlin J, in his direction to the jury in R v Duffy, cited with approval by the English Court of Appeal in R v Ahluwalia (1993) 96 Cr App R 133 said: Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind. [page 136] The kind of loss of self-control that is here in question is not something that results in a state of automatism. Rather it is something that results in intentional homicide, the conduct of the accused, and the intent with which that conduct occurred, being attributable to the accused’s emotional response to the provocation. The very fact that we are not dealing with absolute loss of self-control, and that questions of degree are involved, raises a difficulty, as does the consideration that a variety of emotions can produce an urge to kill, and that such emotions are not all neatly separated. In Van Den Hoek (161 CLR at 166–167) Mason J pointed out that, although anger is the characteristic emotion associated with provocation, fear and other emotions may also be relevant. His Honour said: Traditionally the onset of sudden passion involving loss of self-control characteristic of provocation has been associated with acts or actions which provoke the accused to uncontrollable anger or resentment … a notion that may be traced back as far as Aristotle. Indeed, the historical concept of provocation as a defence has reflected the ordinary meaning of the word, ie, an act or action that excites anger or resentment. These days,

however, judicial discussion of the doctrine places emphasis on the accused’s sudden and temporary loss of self-control, without necessarily attributing that loss of self-control to anger or resentment, except in so far as it is asserted that the act which causes death was done as a result of passion or, as it is colourfully expressed, “in the heat of passion”. Mason J went on to reject the notion that loss of self-control caused by fear, panic, or mental instability cannot be brought into the defence of provocation. … The necessity to resort to metaphor in expounding the law on this subject is disconcerting. References to supposed raising or lowering of blood temperature, reason becoming unseated, and passion mastering understanding, seem calculated to confound, rather than assist, analytical reasoning. However, our understanding of consciousness and mental processes, as compared with our understanding of more readily observable physical phenomena, is so limited that metaphor seems generally to be regarded as essential in the expression of the ideas which guide us in this area of discourse. Assistance is sometimes found in the use of contrast. The mental or emotional state of an accused acting under provocation is described by contrast with other states of mind. … [A]s a matter of common law, that it is essential that at the time of the killing there was a sudden and temporary loss of self-control caused by the alleged provocation but, at the same time, it denies that the killing need follow immediately upon the provocative act or conduct of the deceased. It accepts the possibility of a significant interval of time between such act or conduct and the accused’s sudden and temporary loss of self-control. However, it observes that, as a matter of fact, the longer the interval, the more difficult it will usually be to attribute the actions of the accused to loss of selfcontrol rather than, for example, the deliberate and cold-blooded implementation of a desire for revenge … Notwithstanding the degree of latitude potentially involved in the concept of temporary loss of self-control (see, for example, R v Hill (1980) 3 A Crim R 397) there developed considerable dissatisfaction with the state of the law in this area. One common

criticism was that the law’s concession to human frailty was very much, in its practical application, a concession to male frailty. It was noted earlier that the law of provocation originated, not as a coherent statement or principle, but as a multitude of single instances. An interesting collection of those instances may be found in R v Mawgridge (1706) Kel 119 84 ER 1107, where the Lord Chief Justice listed a series of examples of homicides that constituted murder, and homicides that constituted manslaughter. It is only necessary to examine that list to see the point made by critics. The law developed in days when men frequently wore arms, and fought duels, and when, at least between men, resort to sudden and serious violence in the heat of the moment was common. To [page 137] extend the metaphor, the law’s concession seemed to be to the frailty of those whose blood was apt to boil, rather than those whose blood simmered, perhaps over a long period, and in circumstances at least as worthy of compassion. To quote a recent article commenting on the decision in Ahluwalia (D Nicholson and R Sanghvi, ‘Battered Women and Provocation’ [1993] Crim LR 728 at 730): According to research and many cases themselves, battered women tend not to react with instant violence to taunts or violence as men tend to do. For one thing, they learn that this is likely to lead to a bigger beating. Instead, they typically respond by suffering a ‘slow-burn’ of fear, despair and anger which eventually erupts into the killing of their batterer, usually when he is asleep, drunk or otherwise indisposed. It is not necessary to accept the full effect of words such as ‘typically’ and ‘usually’ in that passage, or to construct a stereotype of a battered woman to appreciate the force of the underlying point. The orientation of the law towards relief of the plight of males, rather than females, was also noted in the area of self-defence. It was discussed, for example, in the judgment of the Supreme Court of Canada in R v Lavallee (1990) 76 CR (3d) 329. The leading

judgment in that case was written by Wilson J. She observed that the law catered much better for the position of a person against whom another person’s hand was raised in sudden threat or anger, than for a person who, over a lengthy period, has become sensitised to danger from her batterer and who ought not to be required to wait until a knife is uplifted, a gun is pointed, or a fist is clenched, before her apprehension of danger is deemed reasonable (76 CR (3d) at 352). In 1982, a Task Force on Domestic Violence reported to the New South Wales Government. The report dealt, amongst other things, with what was seen as the inadequacy of the protection given by the law to women on the subject of provocation. As a result, the Government introduced legislation for the amendment of s 23 of the Crimes Act and that legislation was enacted: s 23 now provides [His Honour then set out the current version of s 23 and continued] … For present purposes, the most significant parts of that provision are the concluding words of subs (2) and the words of subs (3)(b). … What is involved … [with loss of self-control is that it] has both a subjective and an objective aspect. The objective aspect was recently examined and explained by the High Court in Stingel v R (above). On the question of degree earlier mentioned, the extent of the loss of self-control that is involved is such a loss as resulted in the act or omission by the accused causing death, and as could have resulted in an ordinary person in the position of the accused forming an intent to kill or inflict grievous bodily harm upon the deceased. The conduct of the deceased which induced the loss of selfcontrol need not have occurred immediately before the act or omission causing death. Nor need the act or omission causing death be done or omitted suddenly. The effect of these legislative changes needs to be considered at two levels: the relevant legal principles and the forensic problems of a particular case. As a factual matter, for the reasons stated in R v Ahluwalia, depending upon the evidence and circumstances of the individual

case, the longer the time that elapses between the allegedly provocative conduct of the deceased, and the killing of the deceased by the accused, the harder it may be for an accused to raise an argument of provocation, and the easier it may be for the Crown to prove that what was involved was, for example, a deliberate and premeditated act of revenge, rather than the loss of self-control. That having been said, it is still necessary to address the question of the nature of the distinction between killing as the result of a loss of self-control, and killing which, even though it follows illtreatment of an accused by a deceased, is nevertheless regarded as [page 138] murder. This is because, with all its theoretical imperfections, and practical roughness, the law of provocation is still only a limited concession to a certain type of human frailty, and is not intended to allow a jury to reduce what would otherwise be murder to manslaughter upon a view that a deceased person received his or her just deserts. The law is not intended to encourage resort to selfhelp through violence. It will probably remain the case that, for many people, loss of self-control is a concept that is most easily understood, and distinguished from, a deliberate act of vengeance in the factual context of a sudden eruption of violence. However, times are changing, and people are becoming more aware that a loss of selfcontrol can develop even after a lengthy period of abuse, and without the necessity for a specific triggering incident, the presence of such an incident will assist a case of provocation, but its absence is not fatal. This is an area in which psychiatric evidence may assist juries to develop their understanding beyond the commonplace and the familiar. There are, for example, circumstances in which a psychiatrist’s explanation of post traumatic stress syndrome may help make a case of provocation even where there is a substantial interval of time between the provocative act of the deceased and the accused’s response. This, however, is a matter for evidence and argument in individual cases. What the law still requires is that it should be explained to the jury that the key concept for them to bear in mind, whether for the purposes of the subjective or

objective aspect of the problem, is that of a killing which results from a loss of self-control. Emotions such as hatred, resentment, fear, or the desire for revenge, which commonly follow ill-treatment, and sometimes provide a motive for killing, do not of themselves involve a loss of self-control although on some occasions, and in some circumstances, they may lead to it. What the law is concerned with is whether the killing was done whilst the accused was in an emotional state which the jury are prepared to accept as a loss of self-control. As has been observed, the distinction which the law regards as critical in this area has never been amenable to rigorous analysis, and it is usually expressed in language which is metaphorical and in terms of concepts that are imprecise. The breaking down, and ultimate removal, of the requirements of immediacy of the deceased’s provocative conduct and suddenness of the accused’s response, in aid of extending the scope of the concession made by the law to human frailty, has made the distinction even less precise, although it has served what many regard as an important social purpose. The requirements of justice and certainty are often in tension; and it can hardly be claimed that the earlier law on this subject was a model of certainty in its practical application … . [Finlay and Abadee JJ agreed with Gleeson CJ. Appeal allowed.]

3.16 The common law had already recognised that there was no requirement that the killing immediately follow the provocative act. The issue of ‘sudden provocation’ and the effect of a period of time between the provocative conduct and the act causing death were considered by the High Court in Pollock v R (2010) 242 CLR 233; 271 ALR 219. The case was concerned with the interpretation of a provision of the Queensland Criminal Code 1899. The High Court stressed that the provision had to be interpreted in accordance with the common law so that the loss of self-control must be caused by the provocative conduct, but there is no requirement for a temporal relationship between the two (see Pollock at [54]). The loss of self-control can develop after a

lengthy period of abuse, and without the necessity for a specific triggering incident (see Chhay above). [page 139]

Ordinary person test 3.17 Under the previous s 23(2)(b) the conduct of the deceased had to be such that ‘could have induced an ordinary person in the position of the accused to have so far lost self-control’ to have formed the intention to kill or inflict grievous bodily harm on the deceased. The present s 23(2)(d) does not contain the italicised words. This was not a drafting error. The Attorney General, having earlier referred to the test as it existed before the amendment, in his second reading speech said: Proposed section 23(2)(d) further tightens the test by requiring members of the jury to apply a purely objective test. They must consider whether the provocative conduct was so extreme that an ordinary person could have lost self-control to the extent of forming an intention to kill or inflict grievous bodily harm. The removal of the words in the existing section “in the position of the accused” will have the effect of removing the need for members of the jury to assume that the ordinary person has been provoked to the level that the accused was, because they will be determining whether an ordinary person could have been so far provoked as to have lost self-control and formed the requisite intent when faced with that conduct. This will simplify the jury’s task and provide for a greater focus on ordinary community standards. Although the select committee did not propose this change, it is consistent with its intention to restrict the use of the partial defence, reduce its complexity and bring it into line with community standards.

3.18 This change is very significant. It overturns the decision of the majority judges in the High Court in Green v R (1997), below. That decision concerned the provocative

conduct of an unwelcomed sexual advance from the male deceased to the male accused. Of course that conduct may no longer amount to provocation because s 23(3)(a) prevents a ‘non-violent sexual advance to the accused’ as amounting to extreme provocation. A question may arise as to whether particular conduct was ‘non-violent’. In Green the allegation was of ‘groping’ by the deceased while the accused was in bed. The particular aspect of the accused’s character held to be relevant to the extent of his provocation was the history of forced sexual acts by the accused’s father against his sisters. It was the admissibility of this evidence on the issue of provocation that was at the heart of the appeal. To understand the change it is worth quoting part of what Brennan CJ and McHugh J stated in Green in relation to the repealed provisions on provocation. Green v R (1997) 191 CLR 334; 148 ALR 659 High Court of Australia Brennan CJ: … In summary, the appellant’s case at the trial was that he was so provoked by the conduct of the deceased that he lost control of himself and killed the deceased. The ‘defence’ of provocation called for consideration of s 23 of the Crimes Act 1900 (NSW). [His Honour then set out the section and continued:] … The meaning of s 23 Paragraph (a) of subs (2) requires a causal relationship between the act or omission of an accused which causes the death of the deceased and the conduct of the deceased [page 140] towards or affecting the accused. The nexus between these two is the loss of self-control on the part of the accused. That loss must be ‘induced by’ the deceased’s conduct and it must cause the fatal act or omission. Paragraph (a) contains no test of proportionality between the conduct of the deceased and the act or omission which causes the death. All that is needed to satisfy para (a) is evidence that the conduct of the deceased, the accused’s loss of

self-control and the act or omission causing death are causally linked. Paragraph (b), on the other hand, prescribes the nature of the conduct that amounts to provocation for the purposes of the section. It postulates the response of ‘an ordinary person’ to the deceased’s conduct as a standard to be employed in applying s 23. The standard of the ‘ordinary person’ prescribed by para (b) is an objective standard by which to determine whether the conduct relied on by the accused could have induced the formation of an intent to kill or to inflict grievous bodily harm. For the purposes of applying this standard, the notional ordinary person is placed ‘in the position of the accused’. In other words, the significance of the deceased’s conduct is assessed by reference to its significance to the accused, and the ordinary person is notionally exposed to conduct having that significance in order to determine whether the ordinary person could have been induced thereby to form either of the prescribed intents. Paragraph (b) requires the jury to take full account of the sting of the provocation actually experienced by the accused, but eliminates from the jury’s consideration any extraordinary response by the accused to the provocation actually experienced. Thus extra-ordinary aggressiveness or extra-ordinary want of self-control on the part of an accused confer no protection against conviction for murder. The objective test prescribed by para (b) turns not on what the ordinary person would have done in response to the provocation experienced, but on what the ordinary person could have been induced to intend. Dependent on the circumstances of the trial, the jury may need a direction to draw their attention to the difference between ‘would’ and ‘could’ and will ordinarily need a direction to distinguish between what the ordinary person could have been induced to intend and what the ordinary person could have been induced to do. In the present case, for example, the jury might have been more ready to allow the possibility that an ordinary person could have been induced to intend to kill or to inflict grievous bodily harm on the deceased than to allow the possibility that an ordinary person could have been induced to batter and stab the deceased to the extent that the appellant battered and stabbed him. Construing s 23 in the manner stated above, it operates in

substantially the same way as the provisions of the Tasmanian Code were held to operate in Stingel v R (1990) 171 CLR 312; 97 ALR 1 and the way in which the common law was held to operate in Masciantonio v R (1995) 183 CLR 58; 129 ALR 575. It has been said, albeit not in a considered judgment (Baraghith v R (1991) 66 ALJR 212), that it is correct to interpret the phrase ‘in the position of the accused’ consistently with the decision of this court in Stingel. In Stingel, the Court said ((1990) 171 CLR 312 at 326; 97 ALR 1 at 10): [T]he content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused. Were it otherwise, it would be quite impossible to identify the gravity of the particular provocation. In that regard, none of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the relevant conduct. For example, any one or more of the accused’s age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant to an objective assessment of the gravity of a particular wrongful act or insult. As Wilson J commented in Hill [1986] 1 SCR 313 at 346–7; 25 CCC (3d) 322 at 347, the “objective standard and its underlying principles of equality and individual responsibility are not … undermined when such factors are taken into account only for the purpose of putting the provocative insult into context”. [page 141] The court explained ((1990) 171 CLR 312 at 327; 97 ALR 1 at 10– 11) that the ordinary person test is: to provide an objective and uniform standard of the minimum powers of self-control which must be observed before one enters the area in which provocation can reduce what would otherwise be murder to manslaughter. While personal characteristics or attributes of the particular accused may be taken into account for the purpose of understanding the implications and assessing the gravity of the wrongful act or insult, the ultimate

question posed by the threshold objective test of s 160(2) relates to the possible effect of the wrongful act or insult, so understood and assessed, upon the power of selfcontrol of a truly hypothetical “ordinary person”. Subject to a qualification in relation to age … the extent of the power of self-control of that hypothetical ordinary person is unaffected by the personal characteristics or attributes of the particular accused. It will, however, be affected by contemporary conditions and attitudes: see per Gibbs J, Moffa v R (1977) 138 CLR 601 at 616–17; 13 ALR 225. Thus in Parker v R (1963) 111 CLR 610 at 654 Windeyer J pointed out that many reported rulings in provocation cases ‘show how different in weight and character are the things that matter in one age from those which matter in another’. The majority in Masciantonio (Brennan, Deane, Dawson and Gaudron JJ) said ((1995) 183 CLR 58 at 69; 129 ALR 575 at 583): the question is whether the provocation, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to form an intention to kill or do grievous bodily harm and to act upon that intention, as the accused did, so as to give effect to it. The application of s 23 in the present case The trust which the appellant had placed in the deceased before the deceased got into the appellant’s bed, the consumption of a considerable quantity of alcohol on the night of the killing, the appellant’s response to the deceased’s first homosexual advance that “I’m not like this”, the deceased’s persistence in his homosexual advances, his grabbing and pulling of the appellant, his touching the appellant’s groin and the appellant’s knowledge or belief of and sensitivity to his father’s sexual abuse of the appellant’s sisters were all matters that were to be taken into account in determining the availability of the defence of provocation. The appellant’s recollection of and sensitivity to his father’s sexual abuse of the appellant’s sisters (“the sexual abuse factor” as I shall call it) was relevant to the question whether the deceased’s conduct had induced a loss of self-control on the part of

the appellant (a question arising under para (a) of s 23(2)) and to the question of the significance of the provocative conduct to the appellant (a question arising under para (b) of s 23(2)). The sexual abuse factor was relevant to those questions because it tended to make it more likely that the appellant was more severely provoked by the deceased’s unwanted homosexual advances than he would otherwise have been and thus more likely that he had been induced thereby to lose self-control and inflict the fatal blows and more likely that the appellant was so incensed by the deceased’s conduct that, had an ordinary person been provoked to the same extent, that person could have formed an intention to kill the deceased or to inflict grievous bodily harm upon him. McHugh J: … In Masciantonio (1995) 183 CLR 58 at 66–7; 129 ALR 575 at 580– 1 Brennan, Deane, Dawson and Gaudron JJ said: Homicide, which would otherwise be murder, is reduced to manslaughter if the accused causes death while acting under provocation. The provocation must be such that it is capable of causing an ordinary person to lose selfcontrol … The provocation must actually cause the accused to lose self-control and the accused must act while deprived of self-control before he has had the opportunity to regain his composure. [page 142] It follows that the accused must form an intention to kill or to do grievous bodily harm (putting recklessness to one side) before any question of provocation arises. Provocation only operates to reduce what would otherwise be murder to manslaughter. Since the provocation must be such as could cause an ordinary person to lose self-control and act in a manner which would encompass the accused’s actions, it must be such as could cause an ordinary person to form an intention to inflict grievous bodily harm or even death (Johnson v R (1976) 136 CLR 619 at 639; 11 ALR 23 per Barwick CJ). The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard

of self-control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self-control. They are not the characteristics of the accused, although when it is appropriate to do so because of the accused’s immaturity, the ordinary person may be taken to be of the accused’s age. However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person’s age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control and [form an intent to kill or inflict grievous bodily harm]. The only qualification I would make to this statement is to add considerations of “ethnic or cultural background of the accused” to age and maturity as relevant to any inquiry into the objective standard by which the self-control of an accused is measured. (See generally my comments in Masciantonio (1995) 183 CLR 58 at 72– 4; cf Yeo, “Sex, Ethnicity, Power of Self-Control and Provocation Revisited” (1996) 18 Sydney Law Review 304.) The accused contended that the language of s 23(2)(b), and in particular the phrase “an ordinary person in the position of the accused”, has modified the law of provocation in New South Wales. That is, he contended that in New South Wales the jury must consider the accused’s subjective experience when measuring the level of self-control required of him or her. If this is so, s 23 significantly departs from the law of provocation as stated in Masciantonio. The validity of this argument depends on whether the words ‘in the position of the accused’ in s 23(2)(b) require an approach different from that expounded in Masciantonio and allow

the accused’s subjective characteristics to be imputed to the ‘ordinary person’ in considering the loss of self-control issue. It is clear that the personal attributes of the accused are relevant to the issue posed by s 23(2)(a). Thus, the Crown correctly conceded that the trial judge had erred in ruling that evidence of the accused’s special sensitivity to sexual interference, and of his family history which explained that sensitivity, was inadmissible under para (a). What, however, do the words “in the position of the accused” in para (b) mean? Do they mean, as the accused contended, that the “ordinary person” must effectively be given all the characteristics of the accused? … In my opinion, the phrase “an ordinary person in the position of the accused” means an ordinary person who suffered the provocation which the accused suffered as the result of the conduct of the deceased. The standard against which the loss of self-control is judged is that of a hypothetical ordinary person. That person is unaffected by the accused’s idiosyncrasies, personal attributes or past history, save and except that the words “in the position of the accused” require that the hypothetical person be an ordinary person who has been provoked to the same degree of severity and for the same reasons as the accused. In the present case, this translates to a person with the minimum powers of self-control of an ordinary person who is subjected to a sexual advance that is aggravated [page 143] because of the accused’s special sensitivity to a history of violence and sexual assault within his family. All of the accused’s attendant circumstances and sensitivities are relevant in determining the effect of the provocation on “an ordinary person in the position of the accused”. Indeed, “[w]ere it otherwise, it would be quite impossible to identify the gravity of the particular provocation” (Stingel (1990) 171 CLR 312 at 326; 97 ALR 1 at 10). As the court said in Stingel ((1990) 171 CLR 312 at 326; 97 ALR 1 at 10): [N]one of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the

relevant conduct. For example, any one or more of the accused’s age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant. The fact that an accused is especially sensitive to the conduct constituting the provocation, or that he or she takes the conduct as being aimed at a particular sensitivity when in fact it is not, will not preclude a finding of provocation, nor prevent it from being attributed to the hypothetical ordinary person. For example, in Luc Thiet Thuan v R [1997] AC 131 at 146, the Privy Council held that the accused’s impaired mental condition which made him prone to respond explosively even to minor provocation was a factor which could properly be taken into account when assessing the gravity of the conduct by the deceased. Similarly, the fact that the accused in the present appeal had a special sensitivity to sexual assault because of what he believed had occurred to his sisters was relevant to the issue of provocation under s 23(2)(a) and the extent of his provocation must be attributed to the ordinary person for the purpose of s 23(2)(b). … [T]he ordinary person contemplated by s 23(2)(b) is a person who has been provoked to the extent that the accused has been provoked. In this case, the capacity for self-control under s 23(2)(b) had to be measured by reference to an ordinary person who had been provoked to the extent that the accused had been provoked because of his special sensitivity to occurrences of sexual assault. Yet the trial judge’s directions (which were the basis of the successful appeal on grounds 2 and 3) prevented the jury from measuring the capacity for self-control of an ordinary person who had been provoked in the manner and for the reasons that the accused had been provoked. The failure of the trial judge to relate the evidence of sexual assaults within the family to the s 23(2)(a) issues meant that the accused’s real case on s 23(2)(b) was never put to the jury. In my view, the misdirections and non-directions were serious. I think that it is impossible to conclude that a reasonable jury must have convicted the accused if the proper directions had been given … .

3.19 The absence of the words ‘in the position of the accused’ means that the actual impact of the provocative

conduct on the accused is now irrelevant. There is no basis for the jury to weigh the gravity of the provocative conduct except as to how it might impact upon the ordinary man. This certainly, as the Attorney General indicated, makes the work of the jury much simpler but it deprives the defence of much of its significance. The jury are normally warned not to put themselves into the shoes of the accused because the test is an ‘ordinary person’ not an ‘ordinary juror’ and a particular juror might apply his or her own individual strengths and weaknesses to the ordinary person or a juror might only be prepared to acquit the accused of murder if he or she would concede that he or she might have been guilty of manslaughter if in the position of the accused: Stingel v R (1990) 171 CLR 312; 97 ALR 1. With the abolition of the relevance of the accused’s subjective factors it is [page 144] difficult to see how a juror would not act in this way. A juror might have difficulty appreciating that he or she is not an ordinary person. 3.20 The question is whether any attribute of the accused is to be attributed to the ordinary person. Under the common law, as interpreted by the High Court and applied to the repealed s 23, the age and maturity of the accused was taken into account. The better view seems to be that they are still relevant matters where the accused is particularly young or immature. Those factors had nothing to do with the words now deleted from the section ‘in the position of the accused’ but were an acknowledgment that the ordinary person can act differently depending upon those two factors: see Stingel v R, above, at 331.

Intoxication and extreme provocation 3.21 It is clear from s 23(5) that self-induced intoxication is not relevant to extreme provocation in respect of the question

whether the accused acted as a result of the provocation. That is the effect of the application of Pt 11A of the Crimes Act referred to in the subsection (see 8.48). The definition of ‘selfinduced intoxication’ in s 428A provides: “self-induced intoxication” means any intoxication except intoxication that: (a) is involuntary, or (b) results from fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force, or (c) results from the administration of a drug for which a prescription is required in accordance with the prescription of a medical practitioner, a registered nurse whose registration is endorsed under the Health Practitioner Regulation National Law as being qualified to practise as a nurse practitioner, a registered midwife whose registration is endorsed under the Health Practitioner Regulation National Law as being qualified to practise as a midwife practitioner, or dentist, or of a drug for which no prescription is required administered for the purpose, and in accordance with the dosage level recommended, in the manufacturer’s instructions.

3.22 Section 428F provides that self-induced intoxication is not relevant to the test of a reasonable person who is taken to be not intoxicated. Of course s 23 refers to an ordinary person. It is a matter of some conjecture whether there is any difference between the two notions. But in any event the common law has treated an ordinary person as one who is not intoxicated by alcohol or drugs: R v Cooke (1985) 16 A Crim R 304.

Words as provocative conduct 3.23 Under the previous s 23 ‘grossly insulting words’ could amount to provocation. That is clearly no longer the case. The conduct must now not only be unlawful but

amount to a ‘serious indictable offence’. A ‘serious indictable offence’ is defined under s 4 of the Crimes Act to be an ‘indictable offence that is punishable by imprisonment for life or for a term of 5 years or more’. This is again a highly significant limitation on the scope of extreme provocation. Many of the earlier provocation cases consisted of conduct that was not even criminal let alone [page 145] a significant crime. Whatever may be made of the provocative conduct in Green, whether it was violent or not, it could not be a serious indictable offence. To come within the scope of the new s 23 an assault, sexual or not, must be at least an assault occasioning actual bodily harm under s 59 of the Crimes Act. Howie and Johnson, Criminal Practice and Procedure NSW, looseleaf, state at [8-59.5]: “Actual bodily harm” does not have to be a very significant injury. The term “bodily harm” is to be given its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim, but such hurt or injury need not be permanent but must be more than merely transient and trifling: R v Donovan [1934] 2 KB 498 at 509: R v Brown [1993] 2 WLR 556 at 559. The phrase “actual bodily harm” is capable of including psychiatric injury but does not include emotions such as fear or panic nor states of mind that were not themselves evidence of some identifiable clinical condition: R v Chan-Fook [1994] 1 WLR 691 at 696 … See generally McIntyre v R (2009) 198 A Crim R 549; [2009] NSWCCA 305.

3.24 Most cases of domestic violence would be included where there was actual physical violence or non-consensual sexual conduct during the course of the relationship. In such a case immediate provocative conduct would not have to be a serious indictable offence because there does not have to be a provocative act occurring immediately before the act causing death (see 3.15).

Presence of the accused 3.25 Provocation requires a reaction by the accused to conduct of the victim which occurs in the sight or hearing of the accused. The provocative incident must be one which directly involves the accused and the victim, although the actual element of provocation may not be directed intentionally or specifically against the accused. In R v Davis (1998) 100 A Crim R 573 the NSW Court of Criminal Appeal held that Davis could not rely on provocation when he was told that the deceased had sexually assaulted his stepdaughter and his niece. The court held that, in the absence of any incident where the deceased, in the presence of Davis, had done anything which could be said to have provoked him, the defence was not available. Davis sought special leave to appeal to the High Court (Davis v R (1998) 73 ALJR 139). The court (McHugh and Hayne JJ) said there was a strong case to argue that it was wrong to hold that provocation was not available where the alleged provocative conduct was ‘not committed in the presence of the accused but is reported to him’. Notwithstanding this, their Honours held that in the circumstances the conduct alleged to form the basis of the provocation could not have induced an ordinary person to form the necessary intent and so special leave to appeal was refused. Accordingly, the court did not give a definitive ruling on the issue of whether or not conduct in the absence of the accused could be the basis of a defence of provocation. See also R v Quartly (1986) 11 NSWLR 332 at 338.

Third party conduct 3.26 Under the previous law on provocation it was held that the provocation did not have to come directly from the deceased. In R v Hall [2001] NSWCCA 202, [page 146]

there was a fight between the appellant and the deceased’s brother. The deceased tried to intervene to stop the fight. The appellant then ran over the deceased’s brother and she went to help. The appellant returned and ran over the deceased, killing her. Hall’s appeal, on the basis that provocation should have been left with the jury, was dismissed. On the question whether there was any provocation offered by the deceased, Sully J (with whom the other members of the court agreed) adopted (at [48]) what Badgery-Parker J had said in Tumanako v R (1992) 64 A Crim R 149 at 155, that is: … the provocative conduct which may sustain a defence of provocation need not necessarily be conduct of the deceased personally if it is conduct in the presence of the deceased by a person so closely associated with the deceased that it is reasonable for the jury to attribute the conduct of that person to the deceased.

On the issue of possible provocation by a person other than the victim, see R v Kenney [1983] 2 VR 470.

Self-induced provocation 3.27 What if the accused provoked the victim who, in reacting, provoked the accused? Normally, self-induced provocation will be insufficient. However, provocation should be left to the jury if the response of the victim to the accused’s own provocative acts may have been out of proportion to that which might naturally have been expected (Edwards v R [1973] AC 648; R v Kenney [1983] 2 VR 470). Section 23(3)(b) only prohibits the situation where the accused incited the conduct by the deceased in order to ‘provide an excuse to use violence against the deceased’.

Mistake 3.28 Under the previous law it had been considered whether the accused can be mistaken as to provocateur, that

is, can the accused rely upon provocation where he or she believes, for example, that certain offensive conduct alleged to amount to provocation was done by X when it was really done by Y. The issue of provocation arose in R v Dib, below, where the accused believed that the deceased was part of a group attacking the accused’s brother and his friends. In fact, the fight that did occur between two groups of men was started by the accused’s brother and his friends. There was some evidence that the deceased had a minor part to play in the melee and that the accused had come from his home with a knife which he used to stab and kill the deceased. The accused had originally entered a plea of not guilty on the basis that he had not stabbed the deceased and had an alibi. He then sought to change his plea to guilty of manslaughter due to provocation. This was a plea that the Crown was prepared to accept. The trial judge, however, refused to accept the plea on the basis that, on the evidence he had heard, it was not open to the accused to plead guilty on the basis of manslaughter. In making that decision, his Honour had to consider whether a person could rely on a mistaken belief in facts as the basis for provocation. [page 147] R v Dib (2002) 134 A Crim R 329 Supreme Court of New South Wales Hulme J: … 35. There is, in my view, much to be said for the view that the terms of [s 23 of the Crimes Act (see 3.9)] answer with unambiguous clarity any suggestion that acts which either did not occur, or did not occur by or with the complicity of the deceased, but which were… ‘mistakenly believed by the Accused to have been done by the victim’ are ‘conduct of the deceased’. As a matter of simple ordinary English, they are not. …

37. Nor do erroneous beliefs of an Accused accord with the nature of events which led to the doctrine of provocation, mitigating the consequences of a provoked attack, evolving. Thus in R v Quartly (1986) 11 NSWLR 332 Lee J, with the concurrence of the other members of the Court, said: The view … that provocation requires a reaction by an accused to conduct of the deceased which occurs in his sight and hearing appears to have been accepted in the common law from the very earliest times. … 40. The need for a provocative incident and the requirement that conduct of the deceased occur in the sight and hearing of the Accused hardly leave room for mistake. And if information actually received is not sufficient to amount to conduct constituting provocation, then a fortiori a mistaken belief cannot. 41. Nevertheless, it may be accepted that there is a general principle that an honest and reasonable belief in a state of affairs which, if it had existed, would make an Accused’s act innocent constitutes a defence to a criminal charge and one which, if there is evidence raising the issue, the Crown must negative pursuant to its obligation to prove a charge beyond reasonable doubt — Jiminez v R (1992) 173 CLR 572 at 582 and the cases cited. The requirement that any mistaken belief be held on reasonable grounds applies in the area of self defence — Zecevic v DPP (1987) 162 CLR 645 at 661–2. 42. However, as the decision of R v Iannazzone [1983] 1 VR 649 at 655 and the cases referred to in it make clear, ‘the honest and reasonable belief doctrine requires belief in a state of facts which, if they existed, would [have] made the defendant’s act innocent’ and a ‘belief does not excuse if its truth would have meant, not that no offence was being committed, but that some other and different offence was being committed’. Here any mistake as to the deceased’s conduct could only assist an accused in obtaining a conviction for manslaughter rather than murder. On this ground alone, I would regard the issue of any mistake by the Accused as one which does not arise. …

68. I have no difficulty in accepting the proposition that within s 23 ‘conduct of the deceased’ may include, certainly in circumstances where he is present, conduct for which, in accordance with normal principles of agency, joint enterprise or common purpose, the deceased is responsible. The impact on the person provoked may be just as great and there is nothing in the terms of s 23 to exclude the normal rule that what a person may do personally, he may do by an agent. Actions so done may properly be regarded as ‘conduct of the deceased’. (It is unnecessary for present purposes to consider whether the formulation in the passage just cited is as precise an expression of this principle as it perhaps might be.) [page 148] … 75. … [I]t must not be forgotten that insofar as the ‘conduct of the deceased’ may include any mistaken view by the Accused of it, it is that conduct which has to be assessed for the purposes of s 23(2)(b) in accordance with what was said by the High Court in R v Stingel (1990) 171 CLR 312 and Masciantonio v R (1995) 183 CLR 58. The fact that the onus is on the Crown to exclude mistake and, even if one puts to one side some of the difficulties adverted to in the passage I have quoted from Brooking J, the need for the exercise of this judgment provides good reason why unreasonable mistakes should not be relevant. And although some of the cases seem to suggest that the mistake might be confined to the identity of the person giving the provocation, if mistake is a relevant consideration, it is not obvious why this should be so. Insofar as s 23 uses the expression ‘conduct of the deceased’ to refer to the event which has induced a loss of control and which is to be the subject of the test for self control of the ordinary person, there is no logic in concluding that a mistake as to the ‘deceased’ should be any more significant than a mistake as to the ‘conduct’. If an accused’s thoughts are to be determinative of whether any actions were conduct of the deceased, why should an accused’s thoughts not be determinative of whether any, and if so what, conduct of the deceased occurred at all? After all, in most situations it is probably the conduct that has greater significance than the identity of the deceased. …

76. In summary, I doubt whether, as a matter of construction of s 23 mistakes by an Accused can be regarded as ‘conduct of the deceased’. Even if that view be wrong, the principle for which I have cited R v Iannazzone, viz that ‘the honest and reasonable belief doctrine requires belief in a state of facts which, if they existed, would [have] made the defendant’s act innocent’ and a ‘belief does not excuse if its truth would have meant, not that no offence was being committed, but that some other and different offence was being committed’ precludes regard being had to them. And if that also be wrong, the general principle that mistakes must be both honest and reasonable would limit those to which regard could be had. [Having addressed the law of provocation, Hulme J addressed the issue of whether or not he could reject the plea of guilty to manslaughter. His Honour said:] 102. … [T]he Crown proceeded against the Accused on a charge of murder. The Accused raised an issue of alibi. Although the Crown called a number of witnesses whose evidence implicated the Accused, the Crown was at risk that they would not be believed, or at least not to the extent necessary to satisfy the jury to the criminal standard. Subject to the Court not refusing to accept it, a plea to manslaughter would ensure the Accused was convicted and punished for something, even if he were not guilty of that charge. For the Accused, conviction for manslaughter is better than a conviction for murder. 103. But that does not make a conviction for manslaughter proper. If the legitimate choices are between verdicts of guilty and not guilty of murder, a conviction for manslaughter, even by agreement, is improper and an abuse of process. … 105. … I am persuaded that the agreement [by the accused] and acquiescence [by the Crown, to make and accept a plea of guilty to manslaughter] is part of the price paid for the plea rather than a proper reflection of the available evidence. 106. In my view, this approach by the Crown represents an abuse of process. Furthermore, in the circumstances, it would also be an

abuse of process for the Court to convict the Accused of the offence of manslaughter of which he is not guilty. 107. I am also satisfied that the Accused’s plea to manslaughter was entered, in the words of Dawson and McHugh JJ, ‘to gain a technical advantage’, viz to avoid the possibility of conviction for murder. [page 149] 108. I make it clear that the fact that in the Accused’s trial the only substantive issue was whether the Accused stabbed the deceased does not preclude consideration of the topic of provocation. And there is nothing inherently wrong in the Crown and an accused making an arrangement that he will plead guilty to manslaughter and the Crown will accept the plea where there is doubt whether the Accused is guilty of murder or manslaughter. However, it cannot be other than an abuse of process if, on no view of the evidence is the Accused guilty of manslaughter or if, to achieve that agreement or the implementation of it, some perverse or unwarranted view of the facts or the evidence or the law has to be adopted. [His Honour found that in the circumstances he had the power to reject the plea of guilty to manslaughter, which he did. A new trial was then required.]

Withholding provocation from the jury 3.29 Where there is some reasonable evidence of provocation, the judge must instruct the jury to consider the issue, even if provocation has not been relied upon by the defence and even if the accused has not given evidence of actual loss of self-control (Parker v R (1964) 111 CLR 665 at 681–682; Lee Chun-Chuen v R [1963] AC 220 at 232). Whether provocation should be left to the jury is to be decided upon a view of the facts most favourable to the accused (Holmes v DPP [1946] AC 588 at 597). In Green (see 3.18), the question was whether the trial judge should have left the issue for the jury at all. The trial judge may accept that there is some evidence of a loss of self-control but may hold that, as a

matter of law, no jury could find that an ordinary person would have been provoked to the necessary degree (see Kumar below). Of course now in this state, words cannot amount to provocation no matter how insulting they might be. In Lindsay v R (2015) 255 CLR 272; 319 ALR 207 the High Court considered a case where the appellate court determined that no reasonable jury could find that an ‘ordinary person’ would be sufficiently provoked by the deceased’s sexual advances to kill. The Court considered on the particular facts and having regard to modern standards of sexual relations, that the appellate court was wrong to conclude that provocation should not have been left to the jury. R v Kumar (2002) 5 VR 193; 133 A Crim R 245 Court of Appeal, Supreme Court of Victoria [The applicant (accused) and the victim were both from Fiji. They had a violent relationship and, as a result, the victim moved from Queensland to Victoria. The applicant followed her to Victoria where the victim repeatedly terminated the relationship, only to allow it to resume. After returning to Queensland the applicant again travelled to Victoria. He went to the victim’s home, but she refused to let him in or provide him with food, even though he had not eaten for two days. She was alleged to have insulted his family in religiously offensive ways. He left the victim’s flat and armed himself with an iron bar that he found, and a knife that he had in his car. He broke into the flat and killed the victim. The trial judge refused to leave the issue of provocation to the jury, holding that, although there was evidence to show the subjective test could be met, there was no evidence capable of supporting a finding that an ordinary person could have been provoked. The applicant sought leave to appeal to the Court of Appeal.] [page 150] O’Bryan AJA: [footnotes omitted] 167. The critical question raised in this appeal is whether the trial

judge correctly withdrew from the jury consideration of provocation. … 170. I am clearly of the view that the deceased’s conduct … could not satisfy the objective test. I consider that the conduct relied upon by [counsel for the accused] fell far below the minimum limits of the range of powers of self-control which must be attributed to the ordinary person. It is not altogether unknown for a wife to lock out her husband from the matrimonial home for what seemed to her to be a good and sufficient reason, or to refuse to provide a meal to him. In my view, for the husband to lose selfcontrol and react in the violent manner demonstrated in the present case, would be far outside what the community would expect from any ordinary person. 171. This is a case where the objective test must be applied to ‘mere words alone’. In my opinion, the law on provocation has developed to the stage where, as a matter of principle, it may be stated that words which are merely insulting, hurtful and offensive, but are not of a “violently provocative character” cannot satisfy the objective test. Into the equation, account must be taken of the context in which the words were used and the degree of reaction produced by the words. In the present case, the words were no more than insulting, hurtful and offensive, but the applicant’s reaction, whether or not attributable to the words, was both extreme and of great ferocity, his intention being to kill and mutilate the deceased. 172. In my opinion, if the applicant was angered and offended by the deceased’s words, no ordinary person could then and there form the necessary murderous intent and no reasonable jury properly instructed could find otherwise. 173. It is the law that “violently provocative words”, in very exceptional circumstances, are capable of causing an ordinary person to lose self-control and act as ferociously as did the applicant, but I have never experienced such a case in my lengthy experience with the criminal law. … 176. I regard provocation as anachronistic in the law of murder

since the abolition of capital punishment and would support its abolition as a so-called defence by Parliament. I adopt the view of Kirby J in Green … I have experienced, as I believe have other judges who have presided over murder trials, unjustified jury verdicts which could only be explained in terms of provocation. 177. It is important and necessary to maintain objective standards of behaviour for the protection of human life. Judges’ views will differ, as they have in the present case, as to how an ordinary person will react to particular conduct or words. I consider that the jury properly directed on the law of provocation and acting reasonably could only have found that the applicant exploded into anger and formed an intention to kill or seriously injure the deceased, not because of the words attributed to her in the house, but because he became very frustrated by her refusal to admit him to her unit. Before the words were spoken the applicant had retrieved the knife from his car and had obtained a piece of pipe. These actions indicated an intention to enter the house forcefully, armed with the knife. 178. In my opinion, the trial judge was justified in withdrawing provocation from consideration by the jury. No reasonable jury properly instructed and having regard to the evidence most favourable to the applicant could have failed to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense by the words attributed to the deceased inside the house. [page 151] 179. In my opinion the application for leave to appeal the conviction should be dismissed. [Batt JA agreed with O’Bryan AJA. Eames J dissented. Application for leave to appeal dismissed.]

Proportionality not required 3.30 It is not necessary that the killing be proportional to the provocation offered (s 23(3)(a)). The trial judge is not required to address the jury on something that does not have to be proved against the accused, but, in certain circumstances, a direction about proportionality may be

required. In R v Szabo [2000] NSWCCA 226 at [46]–[49], Heydon JA said: 46 The Appellant’s submission was as follows: … His Honour failed to direct the jury that the provocation claimed was not negatived by the fact that the act was not “reasonably proportional to the conduct of the deceased that could induce the acts” causing the death of the deceased. Nor did his Honour direct the jury that the acts of the appellant if done with an intention to kill or an intent to inflict grievous bodily harm did not negative provocation (s 23(3)(a)(c) Crimes Act). These were important directions in this matter particularly having regard to the character of the attack upon the deceased and the nature of the provocation claimed by the appellant. The directions left the issue of “proportionality” unaddressed in circumstances where it clearly would be of concern to a jury. In fact the issue, if anything may have been interpreted by the jury as requiring “proportionality” to be considered in determining whether relevant conduct could induce “an ordinary person” to relevantly lose control. 47 The directions which the appellant contends should have been given were not requested by his counsel at the trial. 48 The duty of the trial judge was to direct the jury on the applicable principles of law. Unless the circumstances of the case made it necessary, he had no duty to direct them about what was not the law. The Crown did not suggest, contrary to s 23(3)(a), that provocation was negatived by any lack of reasonable proportionality between the accused’s conduct and the deceased’s conduct. The trial judge repeatedly directed the jury that the s 23(2)(b) issue was whether the ordinary person would have lost self-control in the manner described in that paragraph; if so, it would not matter how much greater the accused’s reaction might have been

compared to that of the ordinary person, and the trial judge did not suggest that it would matter. 49 The Crown did not make any submission to the contrary of s 23(3)(c) [now repealed]. Hence the s 23(3)(c) direction, to which no oral argument was directed, was not called for.

[page 152]

Abolition of provocation 3.31 Although the Council determined not to abolish provocation as a defence in this state, it is worthwhile considering the arguments for its abolition. The Model Criminal Code Officers Committee (MCCOC) criticised the defence of provocation as not reflecting contemporary values (footnotes omitted), as follows. MCCOC, Fatal Offences Against the Person Model Criminal Code, Discussion Paper, Chapter 5, June 1998, pp 69–105 Under the current law in all States and Territories, murder can be reduced to manslaughter due to the existence of a partial excuse. It should be noted that in all cases affected by these partial excuses the defendant is potentially guilty of murder because both the physical and fault elements of the offence will be present. The partial excuses do not operate to negate intent or recklessness; rather they recognise and make a concession for human frailty. The issue which arises is to determine what circumstances will suffice to diminish the fault element for murder. The jurisdictions recognise different circumstances as sufficient to constitute a partial excuse. … Current law recognises that there are circumstances in which people can be provoked to the point where they may kill another human being. If there is a situation that the law will recognise as provocation, and the prosecution is unable to disprove the partial defence, murder is reduced to manslaughter, though the defendant intended to kill the victim. …

The doctrine’s roots reach as far back as Anglo-Saxon and Norman times. It arose out of the sheer prevalence of drunken brawls and dangerous duels which often resulted in death due to the involvement of lethal weapons. The doctrine began to take on a more recognisable form in the seventeenth century when murder was closely aligned with malice aforethought, which was said to be lacking in provoked killings. In the eighteenth century, the doctrine was increasingly applied in situations other than the traditional drunken pub brawl and duelling cases. As the scope of the doctrine expanded, the courts began to ascribe formal characteristics to provocation by devising certain rules regulating its operation. For instance, while the doctrine could now be raised by husbands who interrupted their wives engaging in adultery, a suddenness requirement developed requiring the defendant’s act to be committed in the heat of passion before his temper had cooled. … The doctrinal shifts between objective and subjective approaches points to an underlying difficulty which has long plagued the doctrine of provocation — its lack of a rationale which comprehensively explains its operation. There are two competing rationales: the first emphasises the victim’s provocative conduct in focusing upon why the defendant acted as he or she did; the second takes the view that the defence excuses the defendant for that conduct. The two distinct rationales are apt to develop provocation in different directions. Provocation as a partial excuse essentially amounts to a concession to human frailty as it recognises that in some circumstances society should not expect persons to act dispassionately. However, this does not wholly nor adequately describe the operation of this partial excuse; provocation displays characteristics of both rationales as is illustrated by the fact that the doctrine has both subjective and objective components. This has enveloped provocation in a mesh of complexity which has culminated in an intense debate regarding the extent to which the test of provocation should display subjective [page 153] and objective components and, in particular, whether the test

should be completely subjective. … The real issue in deciding whether the partial defence of provocation should be retained is one of culpability — whether the defendant should be culpable for murder, or for the lesser crime of manslaughter. It cannot be escaped that this issue must in turn be decided by reference to society’s values. The jury is generally used as the thermometer of community sentiment, however the many serious problems which have plagued the partial defence of provocation, at least during its most recent history, forces forward for consideration a more fundamental question: is the middle ground created by the partial defence of provocation worth the price paid for it? This cost/benefit analysis in turn leads to the consideration of the types of cases which commonly lie within this middle ground (the ‘benefits’). What it reveals is a significant portion of such cases in which the defendant’s culpability is no less than that of a ‘murderer’. The desire to have a middle ground for less culpable (provoked) defendants does not seem to accord with the reality. This critical failure of the partial defence of provocation is not rectified by tightening its operation. (Indeed, as noted above, the recent (desirable) judicial trend is to extend its operation in order to cover battered woman syndrome cases.) The problems it poses arise directly as a consequence of its origins as a partial defence for violent behaviour. It is one thing to apply the doctrine in circumstances where the defendant’s violence was in response to violence directed towards the defendant (as in the case of selfdefence), but the partial defence is not so limited. With few technical exceptions, the partial defence applies to all provoked violence, regardless of how it was provoked. In failing to assess the validity of the reasons for the defendant’s violence, the partial defence overlooks much that is relevant to the question of the defendant’s culpability. Thus, while provocation in its modern setting is designed to afford a middle ground to better reflect criminal culpability, it falls significantly short of that goal by reason of its limited focus which inescapably gears the partial defence towards male patterns of aggression and loss of self-control (its origin) at the expense of the sanctity of human life.

3.32 In 2005, the Victorian Government implemented its Law Reform Commission’s recommendation for the abolition of provocation (Victorian Law Reform Commission, Defences

to Homicide, Final Report, November 2004). See Crimes (Homicide) Act 2005 (Vic), which inserted s 3B into the Crimes Act 1958 (Vic).

SUBSTANTIAL IMPAIRMENT BY ABNORMALITY OF MIND 3.33 Like provocation, substantial impairment by abnormality of mind is a partial defence to murder. It provides that a person who intentionally or recklessly kills another may be convicted of manslaughter instead of murder if the jury is satisfied that the person’s capacity to understand events, to judge whether his or her actions were right or wrong or to control himself or herself was substantially impaired due to an abnormality of mind. Older textbooks refer to the defence of ‘diminished responsibility’. That defence was abolished by the NSW Parliament in 1998 and replaced with the present defence that applies to any murder alleged to have been committed after 3 April 1998. [page 154] 3.34 The defences of mental illness and substantial impairment by abnormality of mind are related because of the nature of the abnormality of mind in each case. However, the former is a complete defence to any crime, whereas the latter applies only to murder and serves to reduce murder to manslaughter. In both defences the onus of proving the defence is on the accused on the balance of probabilities. 3.35 Accused persons charged with murder, who might qualify for the defence of mental illness (see Chapter 8), may seek to rely upon substantial impairment by abnormality of mind in order to gain the certainty and reassurance of a set term of detention if convicted of manslaughter. A person who has killed and been found not guilty on the grounds of

mental illness may be detained indefinitely ‘until released by due process of law’ (Mental Health (Forensic Provisions) Act 1990 s 39(1)). On the other hand a person who has killed and whose mind at the time of the killing was ‘substantially impaired by abnormality’ may receive a sentence for voluntary manslaughter that at least includes a parole period. The Crown is entitled to raise the defence of mental illness if the accused raises substantial impairment, and similarly, if the accused raises mental illness, the Crown is entitled to raise substantial impairment due to abnormality of mind (R v Ayoub [1984] 2 NSWLR 511). It may seem curious that the Crown is entitled to raise a defence to a crime but that is because of the unusual nature of these defences and their different consequences. 3.36 The test for ‘substantial impairment by abnormality of mind’ is set out in s 23A of the Crimes Act. 23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1)(b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was selfinduced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be

disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. (6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death.

[page 155] (7) If, on the trial of a person for murder, the person contends: (a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or (b) that the person is not liable to be convicted of murder by virtue of this section, evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered. (8) In this section: underlying condition means a pre-existing mental or physiological condition, other than a condition of a transitory kind.

3.37 Section 23A(4) states that the burden of proof is on the accused to prove that he or she comes within the section. Remember Woolmington v DPP [1935] AC 462 (see 1.48) and the ‘golden thread’ of British justice? Here is an exception to the rule that the Crown must prove the physical and fault elements beyond reasonable doubt. Where, as here, the

burden is on the accused, the accused need only prove his or her case on ‘the balance of probabilities’. 3.38 Substantial impairment by abnormality of mind is best considered in the context of the defence of mental illness, where in practice it often arises. See, for further discussion, 8.6 and following.

EXCESSIVE SELF-DEFENCE 3.39 A new category of voluntary manslaughter was created by amendments made to the Crimes Act in 2001 (which commenced in 2002) which introduced the concept of excessive self-defence as a possible issue arising on a charge of murder and which might result in a verdict of manslaughter. Self-defence is discussed in Chapter 9. 3.40 At common law self-defence is a complete answer to all charges, including murder. If an accused person killed another, but ‘… believed upon reasonable grounds that it was necessary in self-defence …’ to kill (Zecevic v DPP (1987) 162 CLR 645: see 9.34), then he or she was not guilty of any offence. Where the Crown could prove beyond reasonable doubt either that the accused did not believe that it was necessary to kill in self-defence, or that there were no reasonable grounds upon which the accused could have formed that belief, then self-defence was not an issue and the accused was to be judged according to law. In this case, if he or she had the necessary fault elements, the killing would be murder. 3.41 From 2002, an accused who believes he or she was acting in self-defence, but uses excessive force, is to be acquitted of murder and convicted instead of manslaughter (s 421). An example might be a person who thinks a stranger approaching on the street might be about to attack him or

her, even though the stranger does nothing to give rise to that belief. The accused then kills the person, believing that this is necessary to defend himself or herself (s 421(1)). Assuming that the jury accepts that the accused honestly held the belief that he or she was about to be attacked and the only available response was to kill, then the [page 156] jury would have to consider whether that response was reasonable. If the jury accepts that the response was ‘not a reasonable response in the circumstances as [the accused] perceives them’ (s 421(1)(b)), that is, that it was not reasonable to think that the only way to respond was to kill, then the accused should be found guilty of manslaughter only. 3.42 It is noteworthy that Victoria has returned to the common law and no longer has a defence to murder based upon excessive self-defence. Section 4 of the Crimes Act 1958 (Vic) contained an alternative verdict to murder called ‘defensive homicide’ but it was repealed in November 2014.

INFANTICIDE 3.43 Infanticide is a statutory offence (see 3.45 below). Where a woman has caused the death of her very young child, she may be charged with murder, to which she can plead not guilty but guilty to infanticide. If the Crown accepts this plea, the accused will be dealt with for the less serious offence and not for murder. Infanticide is an alternative verdict to a charge of murder in the same way manslaughter is. The penalty for infanticide is the same as for manslaughter (s 22A(1)), so the practical effect may be the same whether the accused is convicted of infanticide or manslaughter. Of course the accused may deny killing the

child or plead guilty to manslaughter based upon a version of the facts consistent with involuntary manslaughter, for example, killing by an unlawful and dangerous act. 3.44 Because infanticide is a substantive offence, the prosecution may elect to prosecute a woman for this offence rather than murder, or the woman may rely on it as an answer to the charge of murder. In that case the Crown would have to prove that the offence committed was murder and not infanticide. 3.45 Infanticide is set out in s 22A of the Crimes Act: 22A Infanticide (1) Where a woman by any wilful act or omission causes the death of her child, being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then, notwithstanding that the circumstances were such that but for this section the offence would have amounted to murder, she shall be guilty of infanticide, and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of such child. (2) Where upon the trial of a woman for the murder of her child, being a child under the age of twelve months, the jury are of opinion that she by any wilful act or omission caused its death, but that at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to such child or by reason of the effect of lactation consequent upon the birth of the child, then the jury may, notwithstanding that the circumstances were such that but for the provisions of this section they might have returned a verdict of murder, return in lieu thereof a verdict of infanticide, and the woman may be dealt with and punished as if she had been guilty of the offence of manslaughter of the said child.

[page 157] (3) Nothing in this section shall affect the power of the jury upon an indictment for the murder of a child to return a verdict of manslaughter or a verdict of not guilty on the ground of insanity, or a verdict of concealment of birth.

DISCUSSION QUESTIONS 3.46 1.

Assume that the following facts are true and can be proved. Consider whether Julian could be convicted of murder or of voluntary manslaughter: (a) Julian is a happily married white Anglo-Saxon barrister. He takes time to jog and work out at the gym, and is very fit and strong. He had a happy childhood in a settled family environment. There is nothing to suggest that he has any form of personality disorder, emotional problem, depression, mental illness or other condition. He says that he believed that his wife (Annette) was happy. Their sex life was regular and satisfying, at least for him. Julian unexpectedly returned home during a working day when he was expected to be in court. He entered the bedroom to find his wife having intercourse in the matrimonial bed with his closest Bar colleague and mentor, Tony. Julian says that he completely lost selfcontrol, and in that state picked up a heavy bedside lamp, using it, with one blow, to smash Annette’s skull, instantly killing her with that intention.

If this kind of response and behaviour on Julian’s part should not completely exculpate, should it at least partially excuse, opening the possibility of a verdict of manslaughter? (b) The same situation as above, but with the addition that Julian goes on to administer a similar fate to Tony as well as Annette. What if Annette had taken two lovers to her bed, or three, or four? If the law is to recognise provocation as providing a degree of exculpation, should it place limits on the defence so that, for example, it would be unavailable if the killing was (or killings were) disproportionate to the provocation? (c) The jury asks the trial judge, during the course of their deliberations in Julian’s case, as set out in example 1(a), for a direction on this question: If we believe that Julian did actually lose selfcontrol, but come to the opinion that people like him would not be provoked by finding their wife in bed with a colleague, can we still acquit him of murder?

Should a judge be obliged to direct that the jury cannot reduce murder to manslaughter in such circumstances? 2.

Assume that the following facts are true and can be proved. Discuss whether Billy Rae should be convicted of murder, or of manslaughter, or acquitted. Billy Rae is a member of the ‘Coalition for an Armed Citizenry’ and is an active political campaigner in favour of increased rights for homeowners to

[page 158] protect themselves. His politics have made him a well-known and widely disliked figure and he has received a number of death threats. One night Billy is at home when he hears a noise at the back door. He picks up his semi-automatic assault rifle from beside his chair and moves to the back of the house. As he does so he hears more noise, as if someone is attempting to force the back door. He calls out ‘Get out of here. I’ve got a gun you know’. The noise continues and he can hear some mumbling. He calls out ‘You asked for it’ and then discharges the gun through the door. Billy opens the door and finds he has killed his 86-yearold neighbour who had accidentally attempted to enter the wrong house. Billy is arrested and charged with murder. In his interview with police he says: ‘I have had a lot of threats you know. How was I to know that it was not some crazed bastard out to get me? I had to protect myself and I wasn’t going to let him have the first shot. I didn’t want anyone to die, but it wasn’t me that killed him, it was the hospital.’ At his trial, Billy will call a psychologist who will say that Billy suffers from a long-term psychological condition that, in effect, means he really has a childlike personality and an inability to accept points of view other than his own. It is his personality disorder that makes him seek out groups such as the Coalition for an Armed Citizenry, where he feels like part of a group and his own paranoid fantasies are supported by others. (Note: To fully consider this problem, you would need to consider the law of self-defence discussed at 9.32 and following.)

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4 Involuntary manslaughter INTRODUCTION 4.1 Chapter 3 deals with voluntary manslaughter, that is, where a mental element sufficient for murder is present, but where a statutory partial defence (excessive provocation, substantial impairment due to abnormality of mind, excessive self-defence, or the mental state sufficient for infanticide) reduces what would otherwise be murder to manslaughter. We now turn to involuntary manslaughter, that is, unlawful killing where the mental element for murder is not present, but where the accused’s act or omission that caused death is sufficiently culpable to warrant punishment (see Flow Chart 2-1 at 2.1). We shall also deal with the offence of assault causing death under s 25A of the Crimes Act 1900 (NSW) (‘the Crimes Act’).

TWO FORMS OF INVOLUNTARY MANSLAUGHTER 4.2 In Wilson, the High Court reviewed the history of manslaughter and concluded that, for the purposes of the

Australian common law, there are two forms of involuntary manslaughter: 1.

manslaughter by an unlawful and dangerous act; and

2.

manslaughter by criminal negligence.

Judicial development of accessorial liability has resulted in a further category of manslaughter which can arise where a homicide occurs in the course of a joint criminal enterprise. This category is discussed at 4.16. [page 160] Wilson v R (1992) 174 CLR 313; 107 ALR 257 High Court of Australia [The appellant was charged with murder, but convicted of manslaughter.] Mason CJ, Toohey, Gaudron and McHugh JJ: … The events giving rise to the charge against the appellant were as follows. On the evening of 15 September 1989 the appellant, his girlfriend Kerri Ann Bennier and Cumming were at the home occupied by Cumming’s step-father and the appellant’s mother. The appellant and Bennier walked to a hotel nearby to collect some alcohol from the appellant’s mother who was at the hotel with Cumming’s stepfather. On the way they met the deceased, a middle-aged man, who was under the influence of liquor. The deceased exchanged words with the appellant and Bennier. The appellant thought that the deceased was “strange, a bit weird”. The thrust of the appellant’s evidence was that the deceased was rambling on and making it hard for him to pass. The appellant then told Bennier to go back home to get Cumming so, he said, that Cumming might go to the hotel and collect the alcohol. When Cumming arrived at the scene with Bennier, the appellant and the deceased were still there. The appellant claimed that the deceased had earlier pushed him and that, after Cumming arrived, the deceased “put his arm on the back of my neck and tried to kiss me”. The deceased then “shouldered me”. The appellant tried to walk away, saw that the deceased’s fists were clenched at his side and thought that the

deceased was going to hit him. [The appellant gave evidence that he then hit the deceased once:] Q. How hard did you hit him? A.

It wasn’t really — I didn’t think it was really that very hard.

Q. It wasn’t soft either. A.

No.

… The blow was to the deceased’s face, causing him to fall to the ground where his head ‘landed in that dirt part near the hedge’. The appellant then walked off with Bennier. As he did, Cumming rolled the deceased on to his stomach, went through his pockets, rolled him on to his back and “smashed his head on the concrete … twice”. The cause of the deceased’s death was brain damage, his injuries being consistent with one impact. The Crown’s case, as presented in final address, suggested the fall from the appellant’s punch as the more likely cause of death. The trial judge’s direction seems to have left the fall from the appellant’s punch or Cumming’s later actions as likely to have caused the death. This aspect is not crucial to the questions now before this Court. The case against the appellant The case against both accused was one of felony murder, it being alleged that they assaulted the deceased in the course of robbing him. In answer to this charge the appellant denied any participation in the robbery and any intention of causing serious harm to the deceased; he also relied on self-defence. This Court is not directly concerned with the trial judge’s directions as to murder. But it may be noted that his Honour directed the jury that if the deceased was killed in the course of a joint enterprise between Cumming and the appellant or, if one aided or abetted the other in the killing, they should find both guilty of murder. The trial judge also directed the jury to consider whether either man, acting on his own, was guilty of murder. Since both were found not guilty of murder, it must be taken that the jury rejected an intention to kill or to do grievous bodily harm on the part of either. [page 161] On the alternative verdict of manslaughter, his Honour directed

the jury in the following terms: In this case if you have not found murder proved, but had gone on to consider manslaughter it would be manslaughter by an unlawful and dangerous act. The killing of a man in the course of committing a crime is manslaughter. The crime must be an act in serious breach of the criminal law. A serious assault — you may think the punch by Wilson or the hitting of the head on the concrete by Cumming to be serious assaults — would be an unlawful act for this purpose. Whether the particular act you are considering is a dangerous act is a matter for your judgment. … The question of manslaughter arising from an unlawful and dangerous act is an uncertain area of the law, reflecting a divergence between Australian and English authorities as to the degree of danger which must exist. It is useful to approach the question on an historical footing with a view to determining whether it is possible to spell out any clear principle from the relevant authorities. This involves looking first at the development of the law relating to culpable homicide. Culpable homicide The common law of homicide began with the principle that all who cause death, whether intentionally or accidentally, are liable to conviction for murder.1 Its history reflects a continuing effort to limit that liability. Speaking of the growth of the English law of homicide, Sir Owen Dixon said: For eight centuries the course of its very gradual evolution has been from an almost exclusive concern with the external act which occasioned death to a primary concern with the mind of the man who did the act.2 Fletcher3 observes: The historic point of departure is the principle that unless a killing is justified … the party causing death is always accountable … It was causing death, not the manner and culpability of acting, that determined liability. When the law of homicide came under the King’s jurisdiction in the

twelfth century and became a crime punished by death, the general principle of liability began to admit of exceptions. … [Their Honours proceeded to review the history of the common law of homicide from the time of Bracton through to the nineteenth century and continued:] In the nineteenth century the English courts applied the rule that, if a death occurred in the course of an unlawful act not amounting to a felony, the killing should be treated as manslaughter. Stephen, in A Digest of the Criminal Law,4 states it as the common law rule. As thus expressed, the rule was harsh because it involved liability for manslaughter in the case of an unlawful act which was not dangerous. In other words, causing death in the course of performing a mere unlawful act does not supply the level of culpability appropriate to manslaughter as an instance of culpable homicide. [page 162] Manslaughter by an unlawful and dangerous act The rigour of the common law was softened by a number of decisions. In R v Franklin (1883) 15 Cox CC 163 at p 165, Field J spoke of his “great abhorrence of constructive crime” and held that the requirement of unlawfulness was not met by the act in question being no more than a civil wrong. … In R v Larkin [1943] 1 All ER 217 at 2195 the Court of Criminal Appeal required that the unlawful act be dangerous and that it be ‘likely to injure’. (See also Hall (1961) 45 Cr App R 366 at 372; Pemble v R (1971) 124 CLR 107 at 122). In R v Church [1966] 1 QB 59 at 69 the Court of Criminal Appeal rejected as erroneous a direction that: amounted to telling the jury that, whenever any unlawful act is committed in relation to a human being which resulted in death there must be, at least, a conviction for manslaughter. In the view of the Court (at 70): For such a verdict inexorably to follow, the unlawful act

must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm. In DPP v Newbury [1977] AC 500 the House of Lords examined the matter afresh. It affirmed the test adopted in Larkin and Church. It held that an accused was guilty of manslaughter if he intentionally did an act that was unlawful and dangerous and the act inadvertently caused death; that it was unnecessary to prove that the accused knew that the act was unlawful or dangerous; and that the test was still the objective test, namely whether all sober and reasonable people would recognise that the act was dangerous in the sense of carrying with it the risk of some harm, not whether the accused recognised its danger. As King CJ observed in the present case (R v Wilson (1991) 53 A Crim R at 284): In the course of a discussion of the judgment of Lord Denning MR in Gray v Barr [1971] 2 QB 554, Lord Salmon, who delivered the leading judgment, appears to imply that the test is also met if there is an actual intention to cause harm or an actual realisation that harm is likely, although that is not necessary if the act is objectively dangerous. And, as King CJ pointed out, Larkin, Church and Newbury were not cases of intentional infliction of harm. There are however decisions of English courts which suggest that the intentional infliction of harm by means of an unlawful act may be sufficient to constitute manslaughter (R v Garforth [1964] Crim LR 936; R v Sharmpal Singh [1962] AC 188; see also Smith and Hogan, Criminal Law, 6th ed (1988), p 350). The question of battery manslaughter is considered later in this judgment. The Australian decisions A convenient starting point for a review of the Australian authorities is the decision of this Court in Mamote-Kulang v R (1964) 111 CLR 62. It will be necessary to refer to that case again in the context of battery manslaughter. The appellant struck the deceased a blow with the back of his hand to the side of her abdomen, intending to hurt her and to cause her pain but not

further injury. He was convicted of manslaughter. The judgments were concerned mainly with the meaning of the term “accident” in the relevant legislation of Papua New Guinea but it seems that, in the view of Taylor, Owen and Windeyer JJ, death resulting from the intentional infliction of pain by an unlawful blow would constitute manslaughter at common law. (See Mamote-Kulang v R (1964) 111 CLR 62, per Taylor and Owen JJ at 64 and in particular per Windeyer J at 79: “There is, however, no doubt that at common law a man is guilty of manslaughter if he kills another by an unlawful blow, intended to hurt, although not intended to be fatal or to cause grievous bodily harm.”) [page 163] R v Holzer [1968] VR 481 required consideration of a question which had not arisen in Mamote-Kulang but which was at the heart of some of the English decisions to which reference has been made. The question was as to the application in Australia of the notion that, in the case of manslaughter by an unlawful and dangerous act, the test of recognition of danger was objective. In dealing with that aspect Smith J said at 482: The better view, however, is I think that the circumstances must be such that a reasonable man in the accused’s position, performing the very act which the accused performed, would have realized that he was exposing another or others to an appreciable risk of really serious injury. … [I]t is not sufficient, as it was held to be in R v Church … to show there was a risk of some harm resulting, albeit not serious harm. As can be seen from this passage, Smith J imposed a stricter test than had been applied in Church and in some other decisions, by requiring that the Crown establish an appreciable risk of “really serious injury”. There is a respectable body of later authority which tends to support the approach taken by Smith J in Holzer. That approach was expressly approved by the Court of Criminal Appeal of Victoria in R v Wills [1983] 2 VR 201 at 211–213, though the Court was concerned primarily with the objective nature of the test to be applied. In Crusius (1982) 5 A Crim R 427 at 428 the Court of Criminal Appeal of Victoria referred to Holzer with apparent approval though the Court was concerned only with ‘one limb’ of

that case, namely, “specific intent to commit a battery”. It may be that Holzer was tacitly approved by the Court of Criminal Appeal of New South Wales in Coomer (1989) 40 A Crim R 417 at 423,6 by the Court of Criminal Appeal of Western Australia in Ward v R [1972] WAR 36 at 407 and by judges at first instance in R v McCallum [1969] Tas SR 73 at 87–88, R v Brown (1984) 58 ACTR 33 at 35 and R v Jones (1988) 144 LSJS 58 at 61–62. Finally, there is the decision of this Court in Pemble v R (1971) 124 CLR 107 but, as King CJ pointed out in the present case (Wilson (1991) 53 A Crim R at 286): In that case … the unlawful act, namely the brandishing or pointing of a rifle was so obviously capable of causing grievous bodily harm that the question of the degree of potential harm required to render an act dangerous, did not arise for consideration. Faced with this conflict of authority, King CJ concluded that the Court of Criminal Appeal of South Australia “should adopt the Holzer test” (at 286). In the event, King CJ, while holding that there had been a defect in the trial judge’s summing up, concluded that there had been no miscarriage of justice (at 288). Cox J considered that the English authorities, in particular Larkin and Church, should be followed in preference to Holzer (at 304–5). Matheson J also favoured the English approach. His Honour was influenced by the fact that Newbury was decided at a time when appeals lay from Australia to the Privy Council and that therefore a decision of the House of Lords was “very persuasive” (at 307). This, with respect, is a tenuous basis on which to resolve the conflict of authority. [page 164] Unlawful and dangerous act The jury must be taken to have convicted the appellant of manslaughter by reason of an unlawful and dangerous act causing death. This was not a case of death resulting from criminal negligence and, for reasons already given, provocation afforded no basis for a verdict of manslaughter. The question is whether the trial judge’s direction relevantly erred and, if it did, whether the proviso may properly operate so as to sustain the conviction.8 Whether the “act” in question was the punch by the appellant to

the deceased’s face or the hitting of the deceased’s head on the concrete by Cumming, it was an unlawful act. In view of Cumming’s acquittal, only the punch arises for consideration. In view of what has been said about self-defence, the punch must be treated as an unlawful act. Before the Court of Criminal Appeal the appeal was conducted as if only the punch was in issue so far as the appellant was concerned. And that is how the appeal was conducted before this Court. Whatever may be said of the consequences of that act, there was no suggestion that it was accidental. The references by Lord Salmon in Newbury to intention as an element of manslaughter were severely criticised by Glanville Williams in Textbook of Criminal Law, 2nd ed (1983), pp 272–274. This aspect is discussed later in this judgment. Thus the area of inquiry narrows further and, in the end, focuses on the question: was the act of the appellant in punching the deceased dangerous? That question in turn gives rise to another: was it enough that the appellant (that is, a reasonable person in his position) appreciated the risk of some injury to the deceased from the act or did the jury have to be satisfied that he appreciated the risk of really serious injury? Resolving the authorities There are good reasons why the test in Holzer should be preferred to that in Newbury; the reasons are those advanced by King CJ in the present case. One is the development of the law “towards a closer correlation between moral culpability and legal responsibility” (Wilson 53 A Crim R at 286). Another is that the scope of constructive crime ‘should be confined to what is truly unavoidable’ (at 286). A further reason advanced by King CJ is that the persuasive authority of a decision of the Full Supreme Court of an Australian State in this area of the law is greater than decisions of courts of other countries ‘which may reflect different community attitudes and standards’ (at 287). The decision to which his Honour referred was, no doubt, a reference to Wills. It is not possible to resolve this conflict of authority and assert a proposition in general terms without first considering another category of manslaughter envisaged by Smith J in his direction to the jury in Holzer. He said ([1968] VR at 483): (T)he blow, the assault and battery, was given or

committed by the accused with the intention of doing Harvey some physical injury, not merely of a trivial or negligible character. The intended injury need not be a serious injury. Indeed, if it were a serious injury that was intended we would be in the field of murder, not manslaughter. The injury intended may be of a minor character but it must not be merely trivial or negligible. [page 165] Battery manslaughter Although Smith J did not use the term, effectively he was speaking of battery manslaughter. This additional category of manslaughter (if it exists) involves a subjective test of intention and a low degree of harm. Because of the low degree of requisite harm, it has been suggested that there is significant congruity between the English test for unlawful and dangerous act manslaughter and Smith J’s identification of a third category of manslaughter, although the latter imports a subjective intention.9 The idea of such a category as battery manslaughter does nothing to advance the law in what is, in any event, a somewhat clouded area. In particular, it tends to confuse intent with a willed act. The actus reus here is the unlawful and dangerous act which causes the death. Questions of causation will of course arise but they do not arise here. The mens rea required relates to the unlawful and dangerous act; that act must be willed and not accidental. At common law (and, indeed, under the Criminal Codes) manslaughter is not generally an offence requiring a particular intention; in that respect it is sharply distinguishable from the offence of murder. [Their Honours then proceeded to consider the basis for a form of manslaughter where the death resulted from the intentional infliction of some harm and found that there was no authority that bound the Court to find that such a form of manslaughter existed under the common law.] Conclusion The notion of manslaughter by the intentional infliction of some harm carries with it the consequence that a person may be convicted of manslaughter for an act which was neither intended

nor likely to cause death. In this context we do not think it is helpful to speak in terms of reasonable foreseeability; the concept is one likely to cause confusion. (See, in a different context, Royall v R (1991) 172 CLR 378 at 390, 412–13, 424–25; 100 ALR 669.) But it is appropriate to observe that in such a case a person may be held guilty of manslaughter for a death that was quite unexpected, whether the test applied in that respect is subjective or objective. It may be said that the same is true of unlawful and dangerous act manslaughter. But the criticism loses its force if the test in Holzer is applied so that, before a conviction may ensue, a reasonable person would have realised that he or she was exposing another to an appreciable risk of really serious injury. However, the utility of a qualifier such as “really” is very questionable. “Serious” and “really serious” may have quite different connotations in some situations. (See R v Perks (1986) 41 SASR 335 at 337, as to the use of “serious bodily harm” instead of “grievous bodily harm” in directions as to murder.) While the Holzer direction does not seem to have given rise to difficulties in this regard, the emphasis on really serious injury brings manslaughter perilously close to murder in this respect. The distinction between the two may easily be blurred in the minds of the jury. It is better to speak of an unlawful and dangerous act carrying with it an appreciable risk of serious injury. A direction in those terms gives adequate recognition to the seriousness of manslaughter and to respect for human life, while preserving a clear distinction from murder. The approach in Holzer takes away the idea of unexpectedness to a large extent. It does not remove it entirely but then we are not in the area of murder (and its relevant intent) but in the area of manslaughter. [page 166] Manslaughter by an unlawful and dangerous act (in the Holzer sense) is a relevant and appropriate category of manslaughter. Manslaughter by the intentional infliction of some harm answers neither description. It continues the rigour of the early common law and ought to play no part in contemporary law. This approach leaves two categories of involuntary manslaughter at common law: manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury and manslaughter by criminal negligence. There have been suggestions that these two categories

should be replaced by one. (See, for example, Law Reform Commission, Victoria, Discussion Paper No 13, Homicide (1988), p 68.) But, as the law stands, there are differences between them. In the case of manslaughter by criminal negligence, it is unnecessary to prove that the accused’s act was unlawful (Andrews v DPP [1937] AC 576). And the tests of dangerousness are different. An appreciable risk of serious injury is required in the case of manslaughter by an unlawful and dangerous act. For manslaughter by criminal negligence, the test is “a high risk that death or grievous bodily harm would follow” (Nydam v R [1977] VR 430 at 445). As the question of criminal negligence was not relied on in the present appeal, we need say no more as to the appropriateness of the distinctions that presently exist between this category of manslaughter and manslaughter by an unlawful and dangerous act.10 Adoption of the test in Holzer as to the level of danger applying to manslaughter by an unlawful and dangerous act and abolition of battery manslaughter do not create a gap in the law. Cases of death resulting from a serious assault, which would have fallen within battery manslaughter, will be covered by manslaughter by an unlawful and dangerous act. Cases of death resulting unexpectedly from a comparatively minor assault, which also would have fallen within battery manslaughter, will be covered by the law as to assault.11 A conviction for manslaughter in such a situation does not reflect the principle that there should be a close correlation between moral culpability and legal responsibility, and is therefore inappropriate. … [Brennan, Deane and Dawson JJ in a joint judgment agreed that the doctrine of battery manslaughter should be rejected. However, they rejected the majority view that an objectively appreciable risk of serious injury is required. They would have left the issue of dangerousness to the jury to be determined as a matter of degree. Appeal allowed. New trial ordered.]

4.3 The differences between the two categories of manslaughter are explained in the majority judgment in Wilson as follows: In the case of manslaughter by criminal negligence, it is unnecessary to prove that the accused’s act was unlawful.

And the tests of dangerousness are different. An appreciable risk of serious injury is required in the case of manslaughter by an unlawful and dangerous act. For manslaughter by criminal negligence, the test is “a high risk that death or grievous bodily harm would follow” (adopting Nydam v R (1977) VR 430, at p 445).

The meanings of ‘unlawful’ and ‘dangerous’ are explored at 4.4. [page 167]

UNLAWFUL AND DANGEROUS ACT MANSLAUGHTER Elements of unlawful and dangerous act manslaughter Unlawful and dangerous act 4.4 With respect to the terms ‘unlawful’ and ‘dangerous’: The unlawful and dangerous act must carry with it an appreciable risk, or likelihood, of serious injury. It is not necessary that the accused was aware that the act was dangerous, provided that a reasonable person, in the accused’s position, would have appreciated that the act was one which, in the circumstances, exposed others to the risk of serious injury (Wilson v R (1992) 174 CLR 313; 107 ALR 257; see 4.2). For an act to be unlawful it must be a breach of the criminal law. It is not sufficient that it amount to a tort (Pemble v R (1971) 124 CLR 107). The test of whether an act is dangerous is objective, that is, whether a reasonable person would recognise

the act as dangerous in the sense that it carries with it the risk of harm (DPP v Newbury; DPP v Jones [1977] AC 500). The unlawful act must be a direct act, in the sense of an unlawful act which immediately and inevitably causes physical injury (R v Dalby [1982] 1 All ER 916). R v Cornelissen [2004] NSWCCA 449 NSW Court of Criminal Appeal [The appellant Cornelissen became aware of an allegation, through overhearing part of a conversation between his sisters, Tammy and Louise, that Tammy had been sexually abused as a child by the deceased, Tony Byrne. The appellant went to the deceased’s house and an altercation ensued. A loud noise was heard by the four people who were inside the house and they came to the front door. The deceased was then lying on the ground in the front yard. The deceased got to his feet but was obviously distressed. The appellant punched the deceased and the deceased collapsed. He died shortly afterwards. The punch had caused a tear in one of the blood vessels supplying blood to his brain and this tear had given rise to a subarachnoid haemorrhage. The Crown case was that the appellant had punched the deceased, thereby causing the death of the deceased, and that he was guilty of manslaughter by an unlawful and dangerous act. In his summing up the trial judge said to the jury: Manslaughter is committed where the accused causes the death of a person by an act which is both unlawful and dangerous. It is not necessary that the accused was aware that the act was dangerous provided that a reasonable person would have appreciated that the act was one which, in the circumstances, exposed others to risk of serious injury, that is an unlawful and dangerous act carrying with it an appreciable risk of serious injury. In this case the act must be a breach of the criminal law. It is put by the prosecution that with an assault, the test of danger is objective. The only intent is an intent to commit

an act which is unlawful and dangerous, that is to assault Tony Byrne. Each of the barristers [page 168] sought to give you an example. May I give you this example of a dangerous act. Imagine two young persons at the end of a pier over water and they are tossing a box and passing one to the other like a ball. One misses the catch and it goes over the side and there is a person swimming underneath and the box hits the swimmer and kills him. What the two young persons were doing was a dangerous act. They had no idea that there was a swimmer underneath. It amounts to manslaughter because they were committing a dangerous act within the terminology that I mentioned to you, where there was a risk of serious injury.] James J: … [T]he Crown case that the appellant Cornelissen had committed the crime of manslaughter was that, in the second part of the physical altercation between Cornelissen and the deceased, Cornelissen had struck the deceased with a punch, otherwise than in self-defence, thereby doing an unlawful and dangerous act, which had caused the deceased’s death. 78 Quite apart from whether the Crown had proved that Cornelissen had not acted in self-defence, there was a strongly contested issue at the trial as to whether the Crown had proved that the act of punching the deceased had been a “dangerous” act. … 81 In directing the jury about whether an act was dangerous … [the trial judge] said that an act was dangerous, if a reasonable person would have appreciated that the act exposed others to an appreciable risk of serious injury. 82 This direction was obviously derived from a passage in the joint judgment of Mason CJ, Toohey J, Gaudron J and McHugh J in Wilson v The Queen (1991–1992) 174 CLR 313 at 334, where their Honours authoritatively stated that in a trial for manslaughter the jury should be directed to assess “whether a reasonable person in the accused’s position would have realised that (in punching the deceased) he was exposing him to an appreciable risk of serious injury”. However, in the directions his Honour gave in the present

trial his Honour had omitted from the directions the need for the reasonable person to be placed “in the accused’s position”. 83 It was submitted that the omission was significant, because different witnesses at the trial had given different accounts of what they had observed in the confrontation between Cornelissen and the deceased. For example, some Crown witnesses had given evidence that, before he was struck the fatal blow, the deceased was staggering. In his evidence Cornelissen denied that the deceased was staggering. Because what was material was what was apparent to Cornelissen and not what a Crown witnesses [sic] might have observed, it was essential that the jury should have been directed that, in determining whether the Crown had proved that Cornelissen’s act of punching was dangerous, they had to determine whether the Crown had proved that a reasonable person, in the position of Cornelissen, would have realised that in punching the deceased he was exposing him to an appreciable risk of serious injury. … 85 It was further submitted … that the example given by the trial judge as being an example of a dangerous act was inapposite and positively misleading, in that it might have led the jury to take into account the outcome of Cornelissen’s act, that is the death of the deceased, in deciding whether Cornelissen’s act was dangerous. 86 On this appeal the Crown accepted that there were defects in the example given by the trial judge but submitted that better examples of dangerous acts had been given by counsel in their closing addresses and the Crown pointed out that elsewhere in the summing-up the trial judge had warned the jury against using hindsight. 87 In my opinion, the example given by his Honour was, with respect to his Honour, a poor one and could have been misleading. It is by no means clear on the brief facts postulated by his Honour that a reasonable person, in the position of the two persons passing the box between them, would have appreciated that the acts of passing the box carried an appreciable risk of serious injury to another person. One fact which was [page 169] postulated by his Honour, that the persons passing the box had no

idea that there was a swimmer underneath, might well militate against a finding that the acts of passing the box were dangerous according to the test stated in Wilson. I mention in passing that it is by no means apparent that the acts of passing the box would have been unlawful. 88 I would not have upheld this ground of appeal, merely on the basis that the example given by his Honour was inapposite and liable of itself to have been misleading, but the giving of such an example by his Honour strengthens my conclusion that this ground of appeal should be upheld. 89 It was further submitted by counsel for Cornelissen that the trial judge, after giving these directions of law about manslaughter, had failed to relate the directions to the evidence. Nowhere in the summing-up did the trial judge tell the jury in terms that they had to determine whether, applying the directions of law he had given them, they were satisfied beyond reasonable doubt that Cornelissen’s act of punching the deceased, quite apart from whether it was done in self-defence, was a dangerous act. 90 In my opinion, it would have been preferable for the trial judge to have more explicitly related his directions of law about manslaughter to the evidence in the particular trial but I have concluded from a consideration of the summing-up as a whole that the jury would have realised that one of their tasks was to determine whether the Crown had proved beyond reasonable doubt that Cornelissen’s act of punching the deceased had been a dangerous act. [Hidden and Bell JJ agreed with James J that the appeal should be allowed.]

4.5 The supply of a prohibited drug, although unlawful, is not a dangerous act for the purposes of manslaughter where the recipient of the drug dies as a result of its ingestion (Burns v R (2012) 246 CLR 334; 290 ALR 713). This is so, even though the supplier knew that the recipient intended to use the drug supplied. See Burns at 2.12 on the issue of causation.

Unlawful otherwise than as breach of statutory or

regulatory provision 4.6 What does unlawful mean? In Pullman the appellant was convicted of manslaughter. The Crown alleged that he was the driver of a car that crossed an unbroken centre line which forced the driver of an oncoming vehicle to swerve. The driver of that vehicle lost control and struck and killed a motorcyclist travelling in the same direction as the appellant. R v Pullman (1991) 25 NSWLR 89; 58 A Crim R 222 NSW Court of Criminal Appeal Hunt CJ at CL: … The principal issue which arose at the trial and which arises in this appeal concerns the nature of the unlawful act which will support both the manslaughter charge and the charges of causing grievous bodily harm by such an act pursuant to s 54 of the Crimes Act. It is convenient to deal first with the manslaughter charge. [page 170] There are two categories of manslaughter which are said to be relevant to any consideration of this issue where death has been caused by the driving of a motor vehicle. The first is that of criminal negligence, in which it is necessary for the Crown to establish such a high degree of negligence or disregard for the life and safety of others as to be regarded as a crime against the community generally and as conduct deserving punishment. … The second category is that of an unlawful and dangerous act, in which it is necessary for the Crown to establish that the act of the accused was one done deliberately and that it was both unlawful and dangerous. … The Crown ultimately relied in this case upon the category of manslaughter based on an unlawful and dangerous act. The appellant’s first argument is that an act which constitutes a breach of the Motor Traffic Regulations does not, for that reason alone, constitute an unlawful act sufficient to found a charge of manslaughter within that category. That particular argument could not be denied; there is an abundance of authority for it: see, eg, Andrews v Director of Public Prosecutions [1937] AC 576 at 584.

The Regulations include such a wide and diverse variety of circumstances that many (such as driving without the necessary licence, although otherwise competent to do so) could not possibly justify a charge of manslaughter within that category. The appellant’s second argument, however, is more controversial. He says that, if any particular act causing death constitutes a breach of the Motor Traffic Regulations, it is necessarily excluded as supporting a charge of manslaughter within the category of unlawful and dangerous act, although it may support a charge of manslaughter within the other relevant category, that of criminal negligence. It is clear, of course, that the act must be unlawful in the sense of being in breach of the criminal law; an act which amounts to no more than a tort is insufficient: R v Lamb [1967] 2 QB 981 at 988; Pemble v R (1971) 124 CLR 107 at 122. The appellant has relied principally upon the judgment of Burbury CJ in R v Rau [1972] Tas SR 59. The Chief Justice, referring to acts constituting breaches of the Motor Traffic Regulations, held (at 65) that the result of the decision of the House of Lords in Andrews v Director of Public Prosecutions is: … that for the purposes of motor manslaughter, the law places all such unlawful acts in the category of culpable negligence, and excludes them from the category of manslaughter constituted by killing by an unlawful act. The Chief Justice reasoned this proposition from common law principles, and his decision was not based upon a construction of the Tasmanian Criminal Code. The other two members of the Court of Criminal Appeal (Chambers J and Nettlefold J) reached the same conclusion, basing their individual decisions upon an interpretation of the Criminal Code — although each saw support for that interpretation in Andrews v Director of Public Prosecutions. If this dictum of Burbury CJ was intended to mean (as it appears to have been intended to mean) that any act which constitutes a breach of the Motor Traffic Regulations is necessarily excluded as supporting a charge of manslaughter within the category of unlawful and dangerous act, it is, with respect, difficult to find any

support for such a proposition in Andrews v Director of Public Prosecutions. … The justification usually put forward as supporting the dictum of Burbury CJ as so interpreted — and which is repeated in this appeal — is that, so diverse are the different acts constituting offences under the Motor Traffic Regulations, it would undermine the principle stated in R v Bateman and upheld in Andrews v Director of Public Prosecutions to permit such acts to constitute the unlawful act founding manslaughter within that category. [page 171] In my view, however, it has never been the law that any act which constitutes a breach of the Motor Traffic Regulations is, for that reason alone an unlawful act for the purpose of manslaughter within that category. I have already pointed out that the law is that a breach of such regulations is not by itself such an act. As Humphreys J said in R v Larkin (1942) 29 Cr App R 18 (at 24), the driving of a motor vehicle is a lawful act. In Andrews v Director of Public Prosecutions (at 585), Lord Atkin referred to what he said was the obvious difference in the law of manslaughter between doing an unlawful act and doing a lawful act with a degree of carelessness which the legislature makes criminal. These statements led Burbury CJ in R v Rau (at 63–65) to make an uneasy distinction between a lawful act done negligently and a ‘wholly unlawful’ act, and to assert that the act of driving a motor vehicle in a way which constitutes a breach of the Motor Traffic Regulations does not make ‘his whole act of driving’ unlawful. In the course of doing so, Burbury CJ concludes (at 64) that there must be excluded from the category of manslaughter by an unlawful and dangerous act: … all negligent acts by a car driver where death is caused by driving — whether or not they may or may not be characterized as constituting offences under the Traffic Act 1925. Although that particular conclusion was reached by the Chief Justice by a process of statutory interpretation of the Criminal Code, he asserts (at 64) that the provision of the Code dealing with this category of manslaughter ‘expresses in statutory form the common

law concept of manslaughter constituted by killing by an unlawful act’. I confess that even the distinction drawn by Lord Atkin is not always easy to make in relation to many actions which would constitute breaches of the Motor Traffic Regulations. To drive in a manner dangerous to the public may appropriately be characterised for some purposes as negligent driving, but it is difficult to consider it as merely a negligent way of doing an otherwise lawful act as opposed to an act which is unlawful in itself. It is, for example, accepted (even by Burbury CJ) that driving a motor vehicle under the influence of alcohol is illegal in itself even though it also constitutes a breach of the Motor Traffic Regulations. … In my opinion … a policy which necessarily excludes from the category of manslaughter based upon an unlawful and dangerous act any act which constitutes a breach of the Motor Traffic Regulations is quite unacceptable. In my view, a more appropriate dividing line — bearing in mind the way in which the cases have approached the problem to date — is to require the act upon which this category of manslaughter is based to be one which is unlawful otherwise than by reason of the fact that it infringes some statutory prohibition (by which term I include any regulatory prohibition). My conclusions, stated very shortly, are therefore: (1) An act which constitutes a breach of some statutory or regulatory prohibition does not, for that reason alone, constitute an unlawful act sufficient to found a charge of manslaughter within the category of an unlawful and dangerous act. (2) Such an act may, however, constitute such an unlawful act if it is unlawful in itself — that is, unlawful otherwise than by reason of the fact that it amounts to such a breach. Applying those conclusions to the facts of the present case, I can see no basis upon which it could be said that the appellant’s conduct was unlawful in itself — that is, unlawful otherwise than by reason of the fact that it amounted to a breach of the Motor Traffic Regulations. There is no suggestion, for example, that he

deliberately crossed the unbroken centre line in order to frighten the driver of the vehicle travelling in the opposite direction and thereby to force him to move over and permit the appellant to pass the vehicle he was attempting to pass. Accordingly, there was no evidence to [page 172] support the verdict of guilty on the charge of manslaughter. In those circumstances, there is no need to consider the validity of the directions which were in fact given. [Campbell J, and Newman J in a separate judgment, agreed with Hunt CJ at CL. Appeal allowed. Judgment of acquittal substituted.]

Pullman was considered in R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 where a majority of the Court of Criminal Appeal approved the decision.

Burden on Crown to prove death caused by unlawful act 4.7 In Jones, Hunt CJ at CL considered the obligation on the Crown to prove that the act that caused the death was unlawful. R v Jones (1995) 38 NSWLR 652 NSW Court of Criminal Appeal [The appellant was charged, along with Shannon Foster, with murder. Manslaughter was left as an alternative verdict in the event that the jury was not satisfied beyond reasonable doubt that his act causing the death of the deceased was done with intent to cause grievous bodily harm. The act was stabbing the deceased three times. The appellant was convicted of manslaughter. The appellant contended that the jury was not directed that, in order to establish the appellant’s guilt of manslaughter, it had to be satisfied that his act was an unlawful and dangerous one.] Hunt CJ at CL: … The Crown case against the appellant was that he and Ms Foster, being dissatisfied with the quality of amphetamines which had previously been purchased from the

deceased, went together to the deceased’s flat at Condell Park. There were a number of other people inside the flat when they arrived. Some of them were smoking cannabis and most of them were affected in some way from the ingestion of either drugs or alcohol. The appellant, who was carrying a bag containing many coins (which had been supplied by Ms Foster), went with the deceased into the kitchen. There was an argument between them, and a scuffle followed. The appellant stabbed the deceased three times, two of them in the chest, and there were what was described as a number of defensive wounds suffered by the deceased as well. The struggle continued as the two men left the kitchen. The appellant left through the front door, followed up to the door by the deceased, who returned to the lounge area of the flat, collapsed and later died of one of the wounds to his chest. At some stage — precisely when is difficult to see, but it was certainly after the deceased had been wounded — the appellant said to the others in the flat words to the effect that, if anyone moved, he would kill them. … I turn now to the first ground of appeal, which asserts that “the trial judge failed to direct the jury adequately on manslaughter”. After identifying the three ingredients of the crime of murder in his summing-up, the judge dealt briefly with that of causation (which had been formally admitted), and then at some length with the issue of specific intention to the effect that the very nature of the acts done by the appellant led to the inference that he must have intended to inflict such injuries: Thomas v R (1960) 102 CLR 584 at 596–597; R v Stokes & Difford (1990) 51 A Crim R 25 at 30. (Such an approach necessarily assumes that the acts were done deliberately.) The judge [page 173] then turned briefly to self-defence, to which reference will be made later (the directions as to self-defence are the subject of the second ground of appeal), and said: if a person kills another in circumstances where the law does not recognise that he acted in such self-defence, then he is guilty of a crime, and the crime will be, according to the circumstances, murder or manslaughter.

What makes the difference between the two possibilities of murder or manslaughter is the intent with which he did the killing. If he did the killing with the intent of inflicting really serious bodily injury, then he is guilty of murder. If he did the killing without the intent to inflict really serious bodily harm, then, because he did not kill in self-defence as recognised by the law, he will be guilty of the crime of manslaughter. The only other reference to manslaughter was at the conclusion of the summing-up. Leaving aside for one moment the references to self-defence, the judge said: The third possibility is that … you are not prepared to find beyond reasonable doubt an intent to inflict really serious bodily injury. In that event your verdict will be not guilty of murder but guilty of manslaughter. That was not an adequate direction as to manslaughter. The jury were not directed, as they should have been, that the Crown must establish more than merely that it was the act of the accused which caused the death of the deceased — which is all that the jury were told here — and that the Crown must also establish that that act was an unlawful and dangerous one: unlawful if, for example, the act involves the deliberate application of force to another person without that person’s consent; and dangerous if it was such that a reasonable person in the position of the accused would have realised that, by that act, the deceased was being exposed to an appreciable (or significant) risk of serious injury: Wilson v R (1992) 174 CLR 313 at 335, 336. The appellant has also complained to this Court that the judge should have directed the jury as to the intention on his part which had to be established by the Crown. I do not accept that complaint. Once it has established that the act was a deliberate one (and then only if that issue is in dispute), the Crown does not have to establish any particular intention on the part of the accused. It is an objective test; the Crown does not have to establish that the accused knew that the act was unlawful or dangerous, and thus whether it was exposing the deceased to any particular risk: DPP v Newbury; DPP v Jones [1977] AC 500 at 506–507; Wilson v R (1992) 174 CLR 313 at 324, 335, 336.

The omission to direct the jury that the Crown had to establish that the act of the accused was an unlawful and dangerous one was nevertheless an error. … [His Honour then considered the second ground of appeal, which was that ‘the trial judge failed to direct the jury adequately, and erred in his directions, on self-defence’. His Honour found that this ground of appeal had been made out and continued:] Before leaving this matter, it is I feel appropriate to suggest that neither of the errors disclosed in the first and second grounds of appeal would have occurred if the jury had been directed separately in relation to murder (including the issue of self-defence as it is relevant to that crime) and then, in the event that the jury were not satisfied that the relevant specific intent had been established, in relation to manslaughter (including the issue of selfdefence as it is relevant to that crime). I have included in a schedule to this judgment a set of written directions which could be supplied to the jury, in accordance with s 55B of the Jury Act 1977, in which such separate directions are given. I do not say that it is erroneous not to deal with each of the two crimes separately, but I do say that the use of such a document (with amendments appropriate to the circumstances of the particular case, such as a separate question as to whether the act of the accused in stabbing the deceased was a deliberate one on his part) will greatly assist the jury to follow the sequence of the summing-up more easily. … [page 174]

SCHEDULE THE QUEEN v JOHN DOE DIRECTIONS Murder The Crown must establish: (1) that it was the act of the accused in stabbing the deceased which caused his death, and (2) that that act was done with an intention to kill the deceased or to inflict grievous bodily harm upon him, and

(3) that that act was not done in self-defence. Grievous bodily harm means really serious physical injury. An act is not done in self-defence when the Crown has established either (a) that the accused did not believe that it was necessary in selfdefence to stab the deceased with the intention of killing him or to inflict grievous bodily harm, or (b) that there were no reasonable grounds for forming any such belief. Alternative verdict — manslaughter The Crown must establish: (1) that it was the act of the accused in stabbing the deceased which caused his death, and (2) that that act was an unlawful and dangerous one, and (3) that that act was not done in self-defence. An act is unlawful if it involves a deliberate application of force to another person without that person’s consent. An act is dangerous if it is such that a reasonable person in the position of the accused would have realised that, by that act, the deceased was being exposed to an appreciable (or significant) risk of serious injury. An act is not done in self-defence when the Crown has established either (a) that the accused did not believe that it was necessary in selfdefence to stab the deceased, or (b) that there were no reasonable grounds for forming any such belief. NOTE: The belief of the accused, so far as self-defence is relevant to manslaughter, does not include any intention to kill or to inflict grievous bodily harm.

QUESTIONS When you have agreed upon your verdict, you will be asked the following questions:

(1) Have you agreed upon your verdict? (2) Do you find the accused guilty or not guilty of murder? GUILTY/NOT GUILTY (3) So says your foreman, so say you all? (4) (If ‘not guilty’) Do you find the accused guilty or not guilty of manslaughter? GUILTY/NOT GUILTY (5) So says your foreman, so say you all? [Smart J in a separate judgment, agreed with the orders and suggested directions proposed by Hunt CJ at CL. Levine J agreed with the orders and reasons of Hunt CJ at CL. Appeal allowed. Conviction quashed. New trial ordered.]

[page 175]

MANSLAUGHTER BY CRIMINAL NEGLIGENCE Manslaughter by negligent act 4.8 Where the accused causes the death of a person by an act or omission which, to a very high degree, falls short of the standard of care that a reasonable person would have exercised, and, as a result, there is such a high risk of death or grievous bodily harm that the negligent act or omission goes beyond a civil wrong and amounts to a crime, the accused can be guilty of manslaughter by gross criminal negligence (Nydam v R [1977] VR 430). Nydam was approved by the High Court in Wilson (see 4.2). Manslaughter by gross criminal negligence requires two elements: (a) a grossly negligent act or omission where the accused owes the victim a duty of care and (b) a high risk of death or grievous bodily harm resulting from that act or omission. It is the presence of

these two facts that takes the conduct out of the category of a civil tort and into the category of a serious criminal offence. 4.9 Because of the notorious reluctance of juries to convict of manslaughter in motor vehicle homicide cases, the legislatures in the various jurisdictions introduced the offence of dangerous driving causing death or grievous bodily harm; for example, in New South Wales, see Crimes Act s 52A and following. There is a discussion in the High Court of the relationship between negligent act manslaughter and death by dangerous driving, albeit in the context of Victorian legislation, in King v R (2012) 245 CLR 588; 288 ALR 565; [2012] HCA 24. Do v R [2001] NSWCCA 19 Court of Criminal Appeal [The accused and two others spent an evening at the house of Mr Le, where a large amount of alcohol, Rohypnol and heroin was consumed. During the course of the evening a shotgun was produced and they ‘mucked around’ with it. In the morning further gun play took place and the gun discharged, killing Mr Le. The appellant was convicted of manslaughter on the basis of criminal negligence. He appealed against his conviction.] Giles JA: … 17. It was not in dispute in the conduct of the trial that Mr Le had died and that his death was caused by the act of the appellant. The question was one of criminal negligence. In Nydam v R [1977] VR 430 at 445 it was said that: In order to establish manslaughter by criminal negligence it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily

harm would follow that the doing of the act merited criminal punishment. 18. The reference to a high risk that death or grievous bodily harm would follow was taken up in the High Court in Wilson v R (1992) 174 CLR 313 at 333. The directions to the jury were in accordance with this test, and no objection was taken at the trial or on appeal to those or any other directions. [page 176] … 25. Hulme J: The deliberate pointing of a loaded and cocked shotgun at someone and the pulling of the trigger is as gross an example of criminal negligence as I can imagine. Had the jury not reached the conclusion that they did, I would have regarded their decision as perverse. 26. When those actions are performed by someone who has spent the night participating in alcohol, smoking heroin and eating Rohypnol tablets, all of which activities are calculated not to improve the fine senses, the matter becomes worse. 27. I agree with the orders proposed by the presiding Judge and with his reasons. [James J also agreed with the decision of Giles JA. Appeal dismissed.]

Manslaughter and malice 4.10 Section 18(2)(a) of the Crimes Act, after the definition of murder, states: ‘No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section’. 4.11 In Lavender it was argued that the reference to ‘this section’ included the statutory definition of manslaughter in s 18(1)(b) so that an act that was not malicious would be neither murder nor manslaughter. This argument was rejected by the High Court, which held that malice was not an element of the offence of manslaughter, so that an act

done without malice may not be murder (as defined by s 18(1)(a)) but could still be manslaughter. R v Lavender (2005) 218 ALR 521; [2005] HCA 37 High Court of Australia [The following statement of facts and procedural background is taken from the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ: The respondent was employed as the operator of a front end loader at a sand mine at Redhead near Newcastle. The loader weighed 25 tons, and was much higher and longer than a car. It only travelled at about four kilometres per hour. The driver’s vision was obscured by a bucket at the front end. The function of the machine was to move processed and unprocessed sand within the area of the mine. The mine site was unfenced, and was in an area of sand dunes covered with vegetation. In places the vegetation was thick, and consisted of bushes and trees up to four metres high. On 2 October 2001, the victim, and three friends aged respectively 11, 14 and 15, went to the mine site to play in the sand. They should not have been there. The respondent decided to chase them away. He drove the loader towards the boys. They ran into an area covered by thick vegetation. The respondent pursued them, driving the loader through the scrub. It was difficult for him to see where he was going. He ran over the victim, Michael Milne, causing injuries resulting in death. The respondent was sentenced to imprisonment for four years with a non-parole period of 18 months. He appealed against his conviction. The Court of Criminal Appeal of New South Wales (Hulme and Adams JJ, Giles JA dissenting) allowed the respondent’s appeal against a conviction for manslaughter by criminal negligence. The prosecution appealed.] [page 177] 1. Gleeson CJ, McHugh, Gummow and Hayne JJ: [footnotes omitted] … Section 18 of the Crimes Act 1900 (NSW) (‘the Crimes Act’) defines the crime of murder, and goes on to provide that every other punishable homicide shall be taken to be manslaughter. The principal issue in this appeal concerns the elements of that form of punishable homicide commonly described as involuntary manslaughter.

2. As this Court held in Wilson v The Queen (1992) 174 CLR 313 at 333, there are two categories of involuntary manslaughter at common law: manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury; and manslaughter by criminal negligence. Involuntary manslaughter is so called because, unlike murder, it involves neither intent to cause death or grievous bodily harm to the victim, nor the other mental elements necessary for murder. In cases of voluntary manslaughter, on the other hand, the elements of murder are present, but the culpability of the offender’s conduct is reduced by reason of provocation, or substantial impairment by abnormality of mind. The Crimes Act makes specific provision with respect to provocation (s 23) and impairment (s 23A), but it makes no specific provision concerning the elements of involuntary manslaughter. Consistently with the common law, the Crimes Act treats manslaughter as a residual category of punishable homicide. It states the elements of murder, and then provides that all other forms of punishable homicide are manslaughter. It is necessary to look to the common law in order to understand what is meant by the reference in s 18 to “other punishable homicide”. The Crimes Act is not a Code. Although in some respects it makes detailed provision for, and in that sense codifies, aspects of the criminal law, it does not exclude the common law. 3. In the present case, the Court of Criminal Appeal of New South Wales (Hulme and Adams JJ, Giles JA dissenting) allowed the respondent’s appeal against a conviction for manslaughter by criminal negligence on the basis that, at trial, counsel for both the prosecution and the defence, and the trial judge, fundamentally misconceived the nature of the offence in question by failing to advert to what was said to be an essential element of the offence, that is to say, malice as defined in s 5 of the Crimes Act. The prosecution appeals to this Court, contending that malice is not an element of involuntary manslaughter, either at common law or under the Crimes Act, and that the decision of the Court of Criminal Appeal is contrary to principle, to the language of the statute, particularly when understood in context, and to more than a century of practice in New South Wales … The directions to the jury …

13. The trial judge told the jury that, relevantly to this case, there were five elements in the offence of involuntary manslaughter. The first was that the respondent had a duty of care to the victim. The second was that he was in breach of that duty. The third was that his actions were deliberate in the sense that he was in control of the vehicle. The fourth was that the actions of the respondent in driving the vehicle caused the death of the victim. The trial judge explained those four elements, but that explanation is not presently relevant. It is what he said about the fifth element that is now important. 14. The trial judge said: And finally, the Crown has to prove that that action of driving into the bush in the circumstances that the Crown says obtained fell so far short of the standard of care which a reasonable person would have exercised in the circumstances and involved such a high risk that death or really serious bodily harm would follow, that the actions merit criminal punishment. [Their Honours then set out the trial judge’s direction on the fifth element in full, and continued:] [page 178] 17. The trial judge’s directions on what he called the fifth element of the offence were based on the judgment of the Full Court of the Supreme Court of Victoria in Nydam v The Queen, a judgment which was approved by four members of this Court in Wilson v The Queen. The directions made no reference to malice, or to the definition of “maliciously” in s 5 of the Crimes Act. All three members of the Court of Criminal Appeal decided that these were matters that were relevant to the charge against the respondent, although each was of a different opinion as to how they were relevant. Giles JA, who was in favour of dismissing the appeal to the Court of Criminal Appeal, considered that what might be described as the Nydam test of fault in the offence of involuntary manslaughter by criminal negligence subsumed any issues that would otherwise have been raised by a requirement for the prosecution to establish malicious conduct within the meaning of s 5 of the Crimes Act. He accepted that, on the true construction of

the Crimes Act, s 5 was relevant to the offence, but he considered that it added nothing of present significance to the Nydam test. Hulme J and Adams J also accepted that s 5 was relevant, but they attached to it significantly different meanings in its application to a case such as the present … The Crimes Act 20. The Crimes Act was enacted in 1900 as an Act to consolidate the statutes relating to criminal law. It was not a criminal code. In important respects it modified or added to the common law, but it assumed the continuing operation of the common law as a source of legal obligations and liabilities. It has been amended many times since 1900, but the provisions of relevance to this case are in substantially the same form as they took in 1900. Section 18, as Windeyer J pointed out in Ryan v The Queen, was “a re-enactment of a provision of the Criminal Law Amendment Act of 1883 (NSW)”. So also was s 5. It will be necessary to make detailed reference to the 1883 legislation in due course. 21. Part 3 of the Crimes Act is headed “Offences against the person”. Division 1 of that Part deals with homicide. In its present form, it comprises ss 17A to 24. Sections 17A, 20, 21, 22 and 22A are irrelevant. Section 18 is described in its heading as defining murder and manslaughter. As will appear when the section is set out in full, that description is misleading. Section 18 defines murder, but it merely provides that punishable homicide which is not within the definition of murder shall be taken to be manslaughter. It is not possible, either from a reading of s 18, or from a reading of the entire Act, to identify all the forms of punishable homicide apart from murder. The elements of involuntary manslaughter are prescribed, not by the Crimes Act, but by the common law. Sections 23 and 23A deal with voluntary manslaughter. Section 19A provides the punishment for murder. Now, a person who is convicted of murder is liable to imprisonment for life. When the Crimes Act was enacted in 1900, a person who was convicted of murder was subject to the death penalty (s 19). As will appear, that was of major importance in the parliamentary history of those provisions of the Criminal Law Amendment Act of 1883 (NSW) (“the 1883 Act”) concerning homicide which were re-enacted in 1900. Section 24 now provides that the maximum penalty for manslaughter is imprisonment for 25

years. It further provides that if, in any case, the sentencing judge is of the opinion that, having regard to all the circumstances, a nominal punishment would be sufficient, the judge may discharge the jury from giving any verdict, and such discharge shall operate as an acquittal. When s 24 was originally enacted, in 1900, the maximum penalty for manslaughter was imprisonment for life, and the minimum term was imprisonment for three years, but that was subject to the same proviso. Section 24 was also a re-enactment of a provision (s 13) of the 1883 Act. 22. The circumstance that at all material times the legislation as to homicide has expressly recognised that, in a case of manslaughter, a nominal punishment only may be sufficient, is consistent with the common law position that malice is not a necessary element of [page 179] manslaughter. For more than a hundred years, judges in all Australian jurisdictions, and in England, have observed that, of all serious offences, manslaughter attracts the widest range of possible sentences. The culpability of a person convicted of manslaughter may fall just short of that of a person guilty of murder or, as s 24 recognises, it may be such that a nominal penalty would suffice. … 24. Central to the present case is a question of the meaning of s 18(2)(a). At common law, the presence or absence of malice was the point of difference between the two forms of unlawful homicide known as murder and manslaughter. It thus would be an error to approach the construction of s 18, and, in particular, the relationship between sub-s (1) and sub-s (2)(a), by stressing the general significance for the common law of the requirement of mens rea. It would also be an error to equate mens rea in all forms of unlawful homicide with malice. 25. In Sir James Fitzjames Stephen’s A Digest of the Criminal Law, published in 1877, murder was defined as unlawful homicide with malice aforethought. Manslaughter was defined as unlawful homicide without malice aforethought. Writing extra-judicially in 1935, Sir Owen Dixon said that, from the beginning of the sixteenth century, the chief concern of the law of homicide has been malice aforethought, and that it is because homicide is a

single felony that, upon an indictment of murder, a verdict of manslaughter may be found. The complexity of the common law as to malice for the purposes of the crime of murder, and the drawing of elaborate distinctions between actual, implied or constructive malice, was a source of much concern in the second half of the nineteenth century. The existence of capital punishment for murder heightened that concern. Sir James Fitzjames Stephen summarised the state of the common law in 1877 by saying that malice aforethought covered any one or more of the following states of mind: intent to kill or cause grievous bodily harm; knowledge that the act causing death will probably cause death or grievous bodily harm although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused; an intent to commit any felony whatever; or an intent to oppose by force an officer executing a duty of arrest or custody. 26. In Parker v The Queen, speaking of the legislation that was reenacted in s 18, Windeyer J said that “it should be remembered that, in relation to murder and manslaughter, the Act of 1883 was intended to be a restatement of common law doctrine, but shorn of some of the extravagances of malice aforethought and constructive malice”. Section 18(1) was a statutory re-formulation of the element of malice in the crime of murder. Subject to that, the section followed the common law. Murder is punishable homicide which involves one of the elements stated in s 18(1)(a). Every other punishable homicide is manslaughter. 27. What, then, is to be made of s 18(2)(a) and its relationship to s 18(1)? Is the result, contrary to what was said by Windeyer J, a radical change in the common law? Did it make malice an element of manslaughter? If the answer to that question is in the affirmative, it must apply to both forms of involuntary manslaughter. Furthermore, logically, the malice involved in involuntary manslaughter must be different from the states of mind described in s 18(1)(a), for otherwise the crime would be murder. In the present case, if the respondent’s case had fallen within s 18(1)(a) because he acted with reckless indifference to human life, he would have been guilty of murder, not manslaughter. 28. Section 18(2)(a) commences with a reference to acts or omissions. That fits in with s 18(1)(a), which deals with acts or omissions involving a certain state of mind. Are the acts or

omissions to which it refers acts or omissions of the kind that would or might [page 180] otherwise fall within the definition of murder, or do they include all acts or omissions which might constitute punishable homicide? Does “within this section” refer to the work done by the section in defining murder, or does it cover both forms of punishable homicide mentioned in the section, that is, murder and manslaughter? 29. The question of construction for this appeal turns upon the concluding words in s 18(2)(a) “shall be within this section”. What were not “within” the section are acts or omissions which lack the quality or character of malice or lawful cause or excuse. The acts or omissions which otherwise would be “within” s 18, because they are in direct terms so identified, are those found in s 18(1)(a). That paragraph tells the reader when “[m]urder shall be taken to have been committed”. The acts or omissions identified in s 18(1) (a) remain within the section if they further satisfy s 18(2)(a). That, as a matter of textual relationship and verbal congruity, is the linkage between s 18(2)(a) and the remainder of s 18. 30. Section 18 defines murder. It does not define manslaughter, except by providing that it is punishable homicide that is not murder. The reader must go to the common law of homicide in order to find out what is punishable. The section refers to manslaughter, but only in excluding from the category of murder any form of punishable homicide which does not satisfy s 18(1)(a). The section contains a positive and a negative definition of murder. The effect of s 18(1)(a) is that certain forms of punishable homicide, which at common law would have been described as unlawful homicide with malice aforethought, are taken to be murder, and all other forms of punishable homicide are not murder but manslaughter. 31. The awkward structure of s 18 has been noticed in the past, although New South Wales courts, in practice, have not treated s 18 as materially altering the law of involuntary manslaughter. There are many provisions in other parts of the Crimes Act which create offences of which malice is an element, just as there were many other such provisions in the 1883 Act. In Pt 1 of the Crimes

Act there are a number of interpretation provisions, including s 5 which defines the word “maliciously”. That section is as follows: Maliciously: Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime. The concluding words of s 5 involve, in a case such as the present, a problem of circularity. The question to be resolved is whether malice is by law an ingredient in the crime of involuntary manslaughter. … Context 33. This case provides an example of the importance of context in resolving questions of statutory construction. 34. The task is to construe s 18 of the Crimes Act of 1900. The immediate context is Div 1 of Pt 3, dealing with homicide, one of the offences against the person dealt with by the Act. The structure of that Division has already been described. In particular, punishable homicide is classified as either murder or manslaughter. In 1900, the penalty for murder was death (s 19). The maximum penalty for manslaughter was penal servitude for life, but specific provision was made for cases of manslaughter where a nominal punishment would be sufficient (s 24). The Division contained no definition of manslaughter beyond providing that it was punishable homicide that did not amount to murder. It was necessary to look to the common law in order to determine what constituted punishable homicide other than murder. … [page 181] 38. At common law there are two kinds of involuntary manslaughter. The first involves the causing of death by an unlawful and dangerous act carrying with it an appreciable risk of serious injury. The second involves manslaughter by criminal

negligence. At common law, murder was the form of unlawful homicide that was accompanied by malice aforethought. Manslaughter was unlawful homicide not involving malice aforethought. This view of the categories of homicide was reflected precisely in the structure of s 18(1) … 54. On the true construction of s 18 of the Crimes Act, understood in context, the section did not alter the common law of unlawful homicide by involuntary manslaughter. The words “within this section” in s 18(2)(a), … refer to the work done by the section in defining the crime of murder. … 68. Kirby J: … 133. Although … a very persuasive textual argument has been advanced by the respondent, within the language of s 18(2)(a) of the Crimes Act, for importing into the definition of manslaughter, as well as of murder, a universal element of malice, a closer examination of the text of that Act and of the other arguments advanced by the appellant results in a conclusion adverse to the interpretation accepted below. 134. That interpretation is fundamentally inconsistent with the common law of manslaughter as it has developed over many centuries, which s 18(1)(b) of the Crimes Act ostensibly contemplated would continue to operate in New South Wales. It is inconsistent with the reasons of principle and policy that sustain the maintenance of a crime of manslaughter by negligent act as an offence objectively, and not subjectively, determined. It is inconsistent with the considerations of legal policy that support the continuance of such a crime where the death of a person has ensued. It is incompatible with numerous law reform and other reports that have recommended the continued differentiation between murder and manslaughter. In such circumstances, only the clearest possible language in the statutory text would justify a significant change in the law of manslaughter, and the previous understandings of that law. 135. Whilst there is an undeniable measure of difficulty in explaining precisely what was the purpose of the first sentence of s 18(2)(a) of the Crimes Act, the paragraph can be adequately confined to application to the “acts and omissions” expressly referred to in s 18(1)(a), dealing exclusively with the definition of

murder. So confined, the first sentence of s 18(2)(a) has no application to the statutory definition of manslaughter in s 18(1)(b). That definition remains to be provided by the common law. At least, this is so until clear legislation of the Parliament of New South Wales introduces altered criteria. 136. Approached in this way, the previous understandings of the common law of manslaughter expressed by the Full Court of the Supreme Court of Victoria in Nydam v The Queen (approved by this Court in Wilson v The Queen) applied to the crime of manslaughter charged in the indictment presented against the respondent in the present case. The trial judge was correct to give effect to that exposition in his charge to the jury. The Court of Criminal Appeal erred in disturbing the conviction that followed the jury’s guilty verdict based upon accurate legal directions about the meaning of manslaughter in the circumstances. … [Callinan and Heydon JJ, in separate judgments, agreed in the orders proposed by Gleeson CJ, McHugh, Gummow and Hayne JJ. Appeal allowed.]

[page 182] 4.12 After the decision in Lavender, the Crimes Amendment Act 2007 (NSW) (which came into force on 15 February 2008) repealed s 5 of the Crimes Act. The explanatory note to the amending Act states: This section (which defines “malicious” for the purposes of offences under the Act) is being repealed as a result of the replacement of that term in offences under the Act with the modern fault element of “intention” or “recklessness”.

The Act identified a number of sections and provided that the term ‘maliciously’ was to be removed and replaced with the words ‘intentionally’ or ‘recklessly’. The repeal of s 5 has had no effect upon the construction of the sections considered in Lavender. Therefore, the law as stated by the High Court in that case continues to apply — so that malice is not an ingredient of involuntary manslaughter and the common law continues to define the range of

conduct falling within the two types of this category of manslaughter. 4.13 As to ‘malicious’ and the repeal of s 5 in respect to murder, see R v IL [2016] NSWCCA 51 extracted at 2.33.

Manslaughter by negligent omission 4.14 Section 18 of the Crimes Act makes it clear that murder can arise whenever there is an act or omission that causes the death charged. The same is true for manslaughter. The leading case dealing with culpability for omissions is the decision of the New South Wales Court of Criminal Appeal in Taktak (also considered at 2.9 in relation to murder by omission). There are two issues: 1.

When is the situation one where criminal responsibility for omission can be imposed, that is, where there is a duty to act?; and

2.

Although in breach of a duty of care, the accused may not have been shown to have intended to kill or inflict grievous bodily harm on the victim. In such circumstances, what must be proved to convict the accused of manslaughter? R v Taktak (1988) 14 NSWLR 226 NSW Court of Criminal Appeal

[The appellant had been contacted by a Mr Rabih and asked to arrange to bring two prostitutes to a party. He arranged with the deceased and her friend that they would go to the party and he took them to Rabih’s house. Rabih then took the women to a party in central Sydney. The appellant was subsequently contacted by telephone and asked to come to Liverpool Street and collect one of the women who was suffering the effects of a drug overdose. The appellant found her and arranged a taxi to take her back to Rabih’s shop. She was at this time unconscious. The appellant performed ineffectual first aid, which involved putting her on her side and

washing her face. The appellant claimed that he did not realise her life was at risk at any stage. He thought she would recover in due course. When Rabih arrived it was discovered that she was dead. The appellant was convicted of manslaughter and appealed to the Court of Criminal Appeal.] [page 183] Yeldham J: … In Stephen, History of the Criminal Law of England (1883), vol III at 10–11, it is said: … A number of people who stand round a shallow pond in which a child is drowning, and let it drown without taking the trouble to ascertain the depth of the pond, are no doubt, shameful cowards, but they can hardly be said to have killed the child. Whether the word ‘killing’ is applied or not to homicides by omission is to a great extent a question of words. For legal purposes a perfectly distinct line on the subject is drawn. By the law of this country killing by omission is in no case criminal, unless the thing omitted is one which it is a legal duty to do. Hence, in order to ascertain what kinds of killing by omission are criminal, it is necessary, in the first place, to ascertain the duties which tend to the preservation of life. They are as follows: A duty in certain cases to provide the necessaries of life; a duty to do dangerous acts in a careful manner, and to employ reasonable knowledge, skill, care, and caution therein; a duty to take proper precautions in dealing with dangerous things; and a duty to do any act undertaken to be done, by contract or otherwise, the omission of which would be dangerous to life. Illustrations of these duties are the duty of parents or guardians, and in some cases the duty of masters, to provide food, warmth, clothing, etc, for children; the duty of a surgeon to employ reasonable skill and care in performing an operation; the duty of the driver of a carriage to drive carefully; the duty of a person employed in a mine to keep the doors regulating the ventilation open or shut at proper times. To cause death by the omission of any such duty is homicide, but there is a distinction of a somewhat indefinite kind as to the case in

which it is and is not unlawful in the sense of being criminal. In order that homicide by omission may be criminal, the omission must amount to what is sometimes called gross, and sometimes culpable negligence. There must be more, but no one can say how much more, carelessness than is required in order to create a civil liability. For instance, many railway accidents are caused by a momentary forgetfulness or want of presence of mind, which are sufficient to involve the railway in civil liability, but are not sufficient to make the railway servant guilty of manslaughter if death is caused. No rule exists in such cases. It is a matter of degree determined by the view the jury happen to take in each particular case. In Archbold, Criminal Pleading Evidence and Practice, 42nd ed (1985), under the heading ‘Gross negligence as recklessness’, it is said (par 20–59 at 1637): If a grown-up person chooses to undertake the charge of a human creature helpless either from infancy, simplicity, lunacy or other infirmity, he is bound to execute that charge without gross neglect; and if he lets the person whose charge he has undertaken die by gross neglect, he is guilty of manslaughter. The neglect has been described as being such as to satisfy a jury that the defendant was reckless whether such person died or not … If a person has the custody of another who is helpless and leaves that other with insufficient food or medical attendance, and so causes his death, he is criminally responsible … In Gillies, Criminal Law (1985) at 32 it is said that at common law a person does not in general incur criminal liability for a failure to intervene and prevent, or attempt to prevent, the occurrence of harm. In this context the person who sees a building on fire and fails to call the fire brigade, or a person who sees a strange child drowning in a shallow pond and fails to rescue the child, does not incur criminal liability. It is stated as a general proposition that “at common law there is no liability for inactivity”, and a number of cases are cited in a footnote in support of this general proposition. Exceptions to the rule are then dealt with, the first concerning situations where a person is under a common law or statutory duty

to act, and the second concerning offences which are, expressly, ones of omission. In the same work (at 510–511) the author says: C. Manslaughter by omission In general D does not incur criminal liability for an omission to act, even where D is in a position to prevent the occurrence of harm. Exceptionally, however, D may do so. D will, for example, do so where a statutory offence of omitting to act provides for such a basis of liability. D may also incur liability for an offence which is defined in terms of the doing of a positive act, by virtue of an omission to act, where the common law or a statute expressly or by implication imposed upon D a duty to act. [page 184] Thus, although manslaughter is usually defined in terms of the doing of an act causing death, and indeed, is usually committed by a person so acting, it can be committed by an omission to act. What must be established is that D was under a legally recognised duty, arising from the common law or from statute, to act in a certain way but omitted to do so, that as a result of this omission to act death resulted, and that by D’s omission to act D exhibited the culpability associated with one of the relevant heads of manslaughter. Thus, if negligent manslaughter is relied upon, as it usually is in the context of manslaughter by omission, it must be shown that D acted with any element of mens rea required by this type of manslaughter; or, if it does not require mens rea, that D’s omission to act exhibited the degree of negligence required by the doctrine of negligent manslaughter. In short, D’s behaviour will be exactly the same as manslaughter by commission, except that D’s conduct will consist of an omission. The spectrum of legally recognised duties grounding liability for an omission is an open-ended one, given that such duties can arise from statute as well as the common law. Standard common law duties grounding liability for manslaughter by omission include that which is vested in

the parent of a young and dependent child, or one in loco parentis, and that which is vested in the person who voluntarily assumes responsibility for the care of an adult who is physically or mentally incapable of caring for himself or herself. Legally recognised duties of care can also arise in other situations. Typically, they arise by virtue of D’s voluntary employment in an occupation the performance of which bears upon the public safety. Thus, the railway gatekeeper is under a duty to shut the gate before a train comes and if owing to neglect the gate-keeper does not do so, with the result that a road-user is run down by a train and killed, he or she is prima facie guilty of manslaughter. Likewise, an old English case upheld the conviction for manslaughter of a man who had, while employed to manage an engine used to haul miners up from a coal-mine, left his post leaving it in the charge of an incompetent person. Shortly after he did this, and as a result of the substitute’s lack of skill, a miner had been thrown down the shaft and killed. It was explained that “a man may, by a neglect of duty, render himself liable to be convicted of manslaughter, or even of murder [that is, where he possesses the appropriate mens rea]”. Manslaughter by omission cases are to be distinguished from the situation where D’s neglect, resulting in death, amounts in itself to an offence of omission, such as a statutory offence of wilfully neglecting a child. In this situation it may be argued that D causes death by the commission of an offence the doing of which is not only unlawful but as well dangerous, in which event D may be convicted of the (positive) commission of constructive manslaughter. See also Howard on Criminal Law, 4th ed (1982) at 105–106; and Russell on Crime, 11th ed (1958) vol 1 at 454ff. In Russell, after dealing with the duty of a parent to maintain children and to provide such medical aid as may be necessary, the author, under the heading “Duty of Persons who have Undertaken Responsibility”, deals with the responsibility of a master for

apprentices and servants, responsibilities arising from employment, and “Responsibility for the helpless or infirm”. Under the latter heading it is said: “A person is criminally responsible if, having undertaken to provide necessaries for another who is so aged and infirm that he is incapable of doing so for himself, he neglects such undertaking, with the result that death ensues; or if having confined another he neglects to supply him with necessaries, whereby the other dies.” See also Criminal Law in New South Wales, by Watson and Purnell 2nd ed (1981) vol 1, par 107, at 62/1. In R v Lowe (1850) 4 Cox CC 449; 3 Car & Kir 123; 175 ER 489, it was held by Lord Campbell CJ that an act of omission, as well as of commission, may be so criminal as to be the subject of an indictment for manslaughter. That was the case of a man, appointed to superintend a steam engine employed in a colliery for the purpose of raising miners from the pits, who left it in charge of an incompetent person in consequence of which incompetence death ensued. A number of the earlier cases were concerned with what was known as constructive manslaughter, which was a counterpart to the felony-murder rule. One such case was [page 185] R v Senior [1899] 1 QB 283, where Wills J had directed the jury that the father of an infant child could be convicted of manslaughter if he had, within the meaning of the Prevention of Cruelty to Children Act 1894 (UK), wilfully neglected his child in a manner likely to cause injury to his health, and had thereby caused or accelerated death. That direction was upheld on appeal. However in R v Lowe [1973] QB 702 the Court of Appeal, in a case involving similar considerations, held that the decision in R v Senior could no longer be regarded as good law in the light of the decision of the House of Lords in Andrews v Director of Public Prosecutions [1937] AC 576 which, though concerned with manslaughter as a result of neglect in the driving of a motor vehicle, nonetheless applied to every case of manslaughter by neglect. In R v Lowe, Phillimore LJ, giving the judgment of the Court, said (at 709): Now in the present case the jury negatived recklessness.

How then can mere neglect, albeit wilful, amount to manslaughter? This court feels that there is something inherently unattractive in a theory of constructive manslaughter. It seems strange that an omission which is wilful solely in the sense that it is not inadvertent and the consequences of which are not in fact foreseen by the person who is neglectful should, if death results, automatically give rise to an indeterminate sentence instead of the maximum two years which would otherwise be the limit imposed. We think that there is a clear distinction between an act of omission and an act of commission likely to cause harm. Whatever may be the position with regard to the latter it does not follow that the same is true of the former. In other words, if I strike a child in a manner likely to cause harm it is right that, if the child dies, I may be charged with manslaughter. If, however, I omit to do something with the result that it suffers injury to health which results in its death, we think that a charge of manslaughter should not be an inevitable consequence, even if the omission is deliberate. In R v Stone & Dobinson [1977] QB 354, a case to which it will be necessary to return, the Court of Appeal rejected a submission that in Lowe the Court had said that there must be an appreciation by the defendant of the risk of death or a serious injury before a conviction for manslaughter involving the death of a child can result, and observed (at 363) that in Lowe’s case: “The Court is saying simply that there must be proved the necessary high degree of negligence, and a direction which fails to emphasise that requirement will be defective.” See also, as to R v Senior, the decision of the House of Lords in R v Sheppard [1981] AC 394 which, however, was not concerned with manslaughter, but simply with the misdemeanour of neglecting to provide adequate medical aid to a child contrary to the provisions of the Children and Young Persons Act 1933 (UK). The present case is in no way concerned with constructive manslaughter, such as it may presently exist following the decision in Andrews. It is concerned with an allegation of manslaughter by

neglect, a type of involuntary manslaughter, in which the Crown must prove beyond reasonable doubt that the circumstances were such that the accused was under a duty to care for the deceased, which duty, as a result either of his gross negligence or perhaps of his recklessness, he failed to perform, with the consequence that death was caused or accelerated. The first question is whether, in the circumstances of the present case, a jury would be entitled to conclude upon the evidence that the appellant was under a legally recognised duty to the deceased to seek medical aid for her. As long ago as 1851, in R v Pocock (1851) 5 Cox CC 172, Erle J said (at 173): In all the cases of indictment for manslaughter, where the death has been occasioned by omission to discharge a duty, it will be found that the duty was one connected with life, so that the ordinary consequence of neglecting it would be death. Such are the cases of machinery at mines, of engine-drivers, or the omission to supply food to helpless infants. The same learned judge, when Chief Justice, presided over the Court of Criminal Appeal in R v Charlotte Smith (1865) 10 Cox CC 82; Le & Ca 607; 169 ER 1533, where it [page 186] was held that a master is not criminally liable for the death of a servant not of tender years, although the death was caused by the insufficiency or badness of the food and lodging provided by him for her, unless the servant was of such weak intellect as to be helpless and unable to take care of herself, or was under such restraint as to be unable to withdraw herself from her master’s dominion. Most of the cases of an omission to perform a legally recognised duty are concerned with the relationship of parent (or person in loco parentis) and child. One of the earliest is R v Shepherd (1862) Le & Ca 147; 169 ER 1340. There the prisoner had failed to procure the aid of a midwife for her daughter, who was eighteen years of age, during childbirth. A difficulty occurred and death ensued. The prisoner’s conviction for manslaughter was quashed on the ground that there was no legal duty binding her to procure the aid of a midwife. Erle CJ said (at 155–156; 1343):

… The cases where the person, whose death is caused, has been brought into circumstances where he cannot help himself, as by imprisonment, by the act of the party charged are clearly distinguishable. There the persons imprisoned are helpless, and their custodians, by the fact of their being so, have charged themselves with the support of their prisoners. The case of parent and child of tender years is also distinguishable, as are the other cases where such a duty is imposed by law or contract, as in the case of master and apprentice. Here the girl was beyond the age of childhood, and was entirely emancipated. Then, being in the prisoner’s house, she is brought to bed, and the mother omits to procure her a midwife. I cannot find any authority for saying that that was such a breach of duty as renders her, in the event which ensued, liable to the consequences of manslaughter. The cases which involve neglect of young children concern a duty as to which, one would have thought, there could be little doubt: eg, R v Conde (1867) 10 Cox CC 547; R v Nicholls (1874) 13 Cox CC 75 (a case of alleged manslaughter by starvation of an infant by her grandmother); R v Senior, R v Gibbins (1918) 13 Cr App R 134 (a case of murder of a child); R v Russell [1933] VLR 59 (prisoner standing by whilst wife and young children drown); R v Watson (1959) 43 Cr App R 111; R v Clarke [1959] VR 645 (persons in loco parentis to young child) and Jones v United States of America 308 F 2d 307 (1962); R v Lowe [(1973) 1 QB 702]. A number of other cases concern situations where a person has voluntarily assumed the care of another, sometimes (but not always) a relative who is elderly or ill. One of the earliest examples is R v Marriott 8 Car & P 425; 173 ER 559, a case decided in 1838. There the prisoner, who was convicted of manslaughter, had been indicted for the murder of an aged and infirm woman by confining her against her will and not providing her with food, clothing, medicine and the like in breach of an alleged duty. Patteson J in summing-up said, inter alia (at 433, 563): The cases which have happened of this description have been generally cases of children and servants, where the duty has been apparent. This is not such a case; but it will

be for you to say, whether from the way in which the prisoner treated her, he had not by way of contract, in some way or other, taken upon him the performance of that duty which she, from age and infirmity, was incapable of doing. Other examples are to be found in R v Instan [1893] 1 QB 450 (as to which see article ‘Manslaughter by Omission’ in Current Legal Problems (1980) vol 33, 255 at 256–257); R v Kelly [1923] VLR 704 (and on appeal Kelly v R (1923) 32 CLR 509 especially at 516); R v Stone & Dobinson; R v Cowan [1955] VLR 18 (where the question left by Lowe J to the jury was whether a man owed to his de facto wife a legal and not a moral duty to obtain proper medical attention for her, either from an implied undertaking or from his relationship to her); and R v Joukhadar (Court of Criminal Appeal, 13 June 1975, unreported). The latter was a case of an alleged omission by the appellant to save his wife from drowning. He was convicted of murder and this was upheld on appeal. The Court observed that there was no criminal responsibility for the harmful consequences of an [page 187] omission in the absence of a legal duty to act. Examples were given of the duty imposed on citizens to aid and assist a police officer in the execution of his duty to preserve the peace, when reasonably called upon and reasonably able to do so; the duty upon the captain of a British ship in the case of a passenger falling overboard; and a duty which might arise as an incident of some special relationship, examples of which were given. Some of the cases to which reference has already been made were mentioned, and the Court said: The legal duty exists in our opinion only where the omission is plainly inexcusable and where it amounts to something in the nature of wicked or gross negligence and which for that reason should be treated and punishable as a crime, such as where the victim of the omission is helpless. It would seem, however, with great respect, that the Court there was concerned rather with breach than with the circumstances in

which the duty does exist. One of the cases referred to was People v Beardsley 113 NW 1 128 (1907), a decision of five judges of the Supreme Court of Michigan. In R v Joukhadar the Court said of this case that it “contains a digest of a number of those English and American authorities on the subject”. People v Beardsley, to which we were referred by counsel, although decided as long ago as 1907, is one which affords considerable assistance in the present matter. The judgment of the Court was given by McAlvay CJ. The facts were somewhat complex, but may be shortly summarised by saying that the respondent was convicted of the manslaughter of his paramour who, for a time, and during the absence of the respondent’s wife, lived in his house. At the time of her death both had been drinking, and the deceased had ingested some tablets containing morphine, a fact of which the respondent was ignorant. Subsequently she became in a stupor and did not rouse when spoken to. Some time later she died. The Chief Justice (at 1129– 1130) said: The law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter … This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or by contract, and the omission to perform the duty must be the immediate and direct cause of death … Although the literature upon the subject is quite meager and the cases few, nevertheless the authorities are in harmony as to the relationship which must exist between the parties to create the duty, the omission of which establishes legal responsibility. One authority has briefly and correctly stated the rule, which the prosecution claims should be applied to the case at bar, as follows: “If a person who sustains to another the legal relation of protector, as husband to wife, parent to child, master to seaman etc, knowing such person to be in peril, wilfully and negligently fails to make such reasonable and proper efforts to rescue him as he might have done, without jeopardizing his own life, or the lives

of others, he is guilty of manslaughter at least, if by reason of his omission of duty the respondent person dies. So one who from domestic relationship, public duty, voluntary choice or otherwise has the custody and care of a human being, helpless either from imprisonment, infancy, sickness, age, imbecility, or other incapacity of mind or body is bound to execute the charge with proper diligence, and will be held guilty of manslaughter if by culpable negligence he lets the helpless creature die.” The Court then proceeded to consider a number of cases, excluding those where statutory provisions were involved. One of the American cases referred to concerned the conviction of a husband and wife for manslaughter in circumstances where the child of a maidservant was born under their roof, and they were charged with neglecting to furnish it with proper care. There the Court had said: To create a criminal liability for neglect by nonfeasance, the neglect must also be of a personal legal duty, the natural and ordinary consequence and neglect of which would be dangerous to life. [page 188] The appellate court reversed the case for error in the summing-up, and in the course of doing so ‘expressly stated that it did not concede that respondents were under a legal duty to care for this child, because it was permitted to be born under their roof, and declined to pass upon that question’. Reference was made also to a case tried by Mr Justice Field of the United States Supreme Court, where the master of a vessel was charged with murder in omitting any effort to rescue a sailor who had fallen overboard. In the course of charging the jury Field J said (inter alia): … In the first place, the duty omitted must be a plain duty … In the second place, it must be one which the party is bound to perform by law, or by contract, and not one the performance of which depends simply upon his humanity, or his sense of justice and propriety. Reference was made also in People v Beardsley to a number of

English cases, some of which have earlier been referred to, including R v Nicholls and R v Instan. In relation to the former, and the charge to the jury by Brett J, McAlvay CJ said (at 1130): … The charge of this nisi prius judge recognizes the principle that a person may voluntarily assume the care of a helpless human being, and, having assumed it, will be held to be under an implied legal duty to care for and protect such person; the duty assumed being that of caretaker and protector to the exclusion of all others. Returning to the matter under consideration in People v Beardsley, the Court said (at 1131) that all the cases referred to “we find are in entire harmony with the proposition first stated in this opinion”. The judgment proceeded: Seeking for a proper determination of the case at bar by the application of the legal principles involved, we must eliminate from the case all consideration of mere moral obligation, and discover whether respondent was under a legal duty towards Blanche Burns at the time of her death, knowing her to be in peril of her life, which required him to make all reasonable and proper effort to save her, the omission to perform which duty would make him responsible for her death. This is the important and determining question in this case. If we hold that such legal duty rested upon respondent, it must arise by implication from the facts and circumstances already recited. It is urged by the prosecutor that the respondent “stood towards this woman for the time being in the place of her natural guardian and protector, and as such owed her a clear legal duty which he completely failed to perform”. The cases cited and digested establish that no such legal duty is created based upon a mere moral obligation. The fact that this woman was in his house created no such legal duty as exists in law and is due from a husband towards his wife … Such an inference would be very repugnant to our moral sense. Respondent had assumed either in fact or by implication no care or control over his companion … we do not find that such legal duty as is

contended for existed in fact or by implication on the part of respondent towards the deceased, the omission of which involved criminal liability. This case, which was referred to as “the most commonly cited statement of the rule” concerning omission to perform a legal duty, was followed and applied in the United States Court of Appeals, District of Columbia Circuit, in 1962 in Jones v United States of America. That was a case where a conviction of involuntary manslaughter, based upon an alleged failure of an adult friend of the mother of an infant, in whose custody the child was, to obtain proper medical care, was quashed on appeal. After referring to People v Beardsley the Court said (at 310): There are at least four situations where the failure to act may constitute the breach of a legal duty. One can be held criminally liable: first, where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid. In relation to the fourth situation, reference is made in a footnote, inter alia, to R v Nicholls and R v Gibbins. In R v Nicholls (decided in 1874) the prisoner was the grandmother of [page 189] the deceased infant who was said to have died from the neglect of the prisoner to supply it with proper nourishment. She was a poor person and the deceased was the child of her daughter, the latter being dead. Whilst she was away from home she left it in the sole care of a boy of nine years. In his summing-up to the jury, Brett J said (at 76): If a grown-up person chooses to undertake the charge of a human creature helpless either from infancy, simplicity, lunacy or other infirmity, he is bound to execute that charge without (at all events) wicked negligence; and if a person who has chosen to take charge of a helpless

creature lets it die by wicked negligence, that person is guilty of manslaughter. Mere negligence will not do, there must be wicked negligence, that is, negligence so great, that you must be of opinion that the prisoner had a wicked mind, in the sense that she was reckless and careless whether the creature died or not. Finally, in this connection, I would refer to R v Stone & Dobinson which has earlier been mentioned. There the appellants, a partially deaf and almost blind man of low average intelligence and no appreciable sense of smell, and his mistress, who was ineffectual and inadequate, lived together in his house with his mentally subnormal son. His sister Fanny, aged about sixty-one at the date of her death, came to live at the house as a lodger in one room without ventilation, toilet or washing facilities. She denied herself proper meals, being anxious not to put on weight, and spent days at a time in her room, and within three years became helplessly infirm so that she did not leave her bed, but she did not complain. Although they did make some attempts to provide aid for her she ultimately died and they were charged with and convicted of manslaughter. Their appeal was dismissed, it being held that on the facts the jury were entitled to find that they had assumed a duty to care for the sister and were obliged to summon help for her or care for her themselves when she became helplessly infirm. Geoffrey Lane LJ, giving the judgment of the Court, dealt with the first submission made, which was that there was no or no sufficient evidence that the appellants or either of them had chosen to undertake the care of the deceased, in this fashion (at 361): Whether Fanny was a lodger or not she was a blood relation of the appellant Stone; she was occupying a room in his house; the appellant Dobinson had undertaken the duty of trying to wash her, of taking such food to her as she required. There was ample evidence that each appellant was aware of the poor condition she was in by mid-July. It was not disputed that no effort was made to summon an ambulance or the social services or the police despite the entreaties of Mrs Wilson and Mrs West … All these were matters which the jury were entitled to take into account when considering whether the necessary assumption of a duty of care for Fanny had been proved.

This was not a situation analogous to the drowning stranger. They did make efforts to care. They tried to get a doctor; they tried to discover the previous doctor. The appellant Dobinson helped with the washing and the provision of food. All these matters were put before the jury in terms which we find it impossible to fault. The jury were entitled to find that the duty had been assumed. They were entitled to conclude that once Fanny became helplessly infirm, as she had by July 19, the appellants were, in the circumstances, obliged either to summon help or else to care for Fanny themselves. … From the foregoing authorities it is plain that, whatever the precise test to be applied in determining whether a jury would be entitled to conclude that, in the circumstances of this case, the appellant did owe a duty to obtain medical care for the deceased, the question is one of some novelty and difficulty. R v Stone & Dobinson does not, on this issue, discuss the authorities, although a number were referred to in argument, and the court determined, on the facts of that case, that the appellants had undertaken the duty to care for the deceased. The critical question, so it seems to me, is whether there is evidence that, within the fourth situation referred to in Jones v United States of America, and derived from a number of the cases, the jury was entitled to conclude that [page 190] the appellant here voluntarily assumed the care of the deceased “and so secluded the helpless person as to prevent others from rendering aid”. Matters which are relevant to this issue include the fact that the appellant and the deceased were in no way related, and their acquaintance was but a short and casual one, having arisen in the circumstances earlier set out; the deceased did not reside with the appellant and, indeed, the premises where she died were those, not of the appellant, but of the man Rabih at whose request the appellant procured her and the girl Barton so that others might use her for the purpose of prostitution; that the time involved was only from about 4 am (which the jury would be entitled to conclude, from the record of interview, was the time the two arrived by taxi at

Rabih’s premises, notwithstanding what the appellant said in his unsworn statement) until the time of her death, whenever that may have been (and, if the evidence of Dr d’Souza was to be regarded as correct, it would not have occurred later than about 9.30 am). There is no doubt that, in the present state of the law, if the appellant, in response to the telephone call, which obviously came from Rabih (who had himself apparently administered the heroin to the deceased), had declined to go to Liverpool Street and attend to the deceased, he could not in any way have been held responsible for her subsequent death, assuming that some other person had not intervened to obtain treatment for her. Similarly, if he had gone to Liverpool Street, observed her condition, and then returned to his premises (or those of Rabih), leaving the deceased lying in Liverpool Street, the result would have been the same. The critical question is: because he elected to take her back to Rabih’s premises and place her on the bed, with a jacket and a blanket over her, and then to treat her in the fashion which he described in answer to questions 25 to 27 inclusive of the record of interview, failing to seek medical attention ‘because I thought that when she got over the dose she had she would be all right’, was it open to a jury to find that, in the circumstances, he owed her a legal duty to obtain medical attention for her? In R v Stone & Dobinson the Court took into account, as one of the circumstances to be considered in relation to the assumption of a duty of care towards the deceased, that the accused ‘did make efforts to care’, something which, with other factors, entitled the jury to find ‘the duty had been assumed’. In R v Nicholls Brett J (at 76) directed the jury that “if a grown up person chooses to undertake the charge of a human creature, helpless either from infancy … or other infirmity, he is bound to execute that charge without … wicked negligence”. The question here is whether there was evidence for the jury that the appellant had voluntarily assumed the care of a helpless human being. Certainly the deceased was helpless, as the appellant in his record of interview conceded. The question whether, by taking her to Rabih’s premises and dealing with her as he did, rather than leaving her to lie in Liverpool Street, he thereby assumed a duty to care for her, is one which must be decided by the application of principles already summarised. None of the cases to which we were referred or which I have consulted for myself is precisely in point. Although, if not taken by the appellant

to Rabih’s house, the deceased may well have remained where she lay in the foyer of a building in Liverpool Street and later died. Equally she may have been seen by another or others who were prepared to and did obtain speedy medical assistance for her. This chance was denied to her by the appellant when he took her away. This is a factor which, in some of the cases (eg, Jones v United States of America) is regarded as significant. In the result I have come to the conclusion, although not without hesitation, that in the circumstances revealed in the answers in the record of interview which have been earlier set out, this being the only relevant evidence on this issue in the Crown case (apart from the later interview recorded in the police officer’s notebook), there was evidence that the appellant did assume a duty to care for the deceased girl, who at the time was helpless, and by so doing removed her from a situation in which others might [page 191] have rendered or obtained aid for her. As I have said I reach that conclusion with some hesitation, having regard to the unusual nature of the case and the sparseness of the evidence. Such hesitation, when combined with other matters which I will mention, has led me to the conclusion that the conviction was, in the relevant sense, unsafe and unsatisfactory, and it would be dangerous to allow it to stand. For that reason it should be quashed: see generally Chamberlain v R [No 2] (1984) 153 CLR 521; Morris v R (1987) 163 CLR 454. … Carruthers J: … I have had the considerable benefit of reading in draft form the judgment of Yeldham J, with which I generally agree, save with respect to the reservations which his Honour holds in relation to the Crown’s proof of the first element. If I may respectfully say so, I do not share his Honour’s reservations in that regard. To my mind the evidence led by the Crown was capable of satisfying the jury beyond reasonable doubt that the appellant owed a duty of care in law to Miss Kirby. That duty flowed from his taking her unconscious body into his exclusive custody and control and thereby removing her from the potentiality of appropriate aid from others. … The complexity of modern society is such that the duty of care cannot be confined to specific categories of legal relationships such

as husband and wife, parent and child; the duty will also arise where one person has voluntarily assumed the care of another who is helpless, through whatever cause and so secluded such person as to prevent others from rendering aid. Thus I find the following passage in 100 ALR 2d 488, par 4 to be apposite: Duties dictated merely by good morals, or by human considerations, are not generally within the domain of the law, and therefore one who did not become a good Samaritan by providing medical care when a witness to the distress of a sick or injured person does not become criminally responsible should death come to such person because of a lack of medical attention. Legal rights and duties, however, may arise out of those complex relations of human society which create correlative rights and duties the performance of which is so necessary to the good order and well-being of society that the state makes their observance obligatory. … [Although it was found that the appellant had assumed a duty to care for the deceased, his conviction was set aside on the basis that the degree of negligence displayed was not sufficient to warrant a finding of manslaughter by criminal negligence. Loveday J agreed with the orders proposed by Yeldham J.]

4.15 The High Court considered the circumstances in which negligent act manslaughter may arise in Burns where the deceased died as a result of the ingestion of methadone supplied to him by the appellant (also noted at 4.5 in relation to unlawful and dangerous act manslaughter and at 2.12 in relation to causation). Burns v R (2012) 246 CLR 334; 290 ALR 713; [2012] HCA 35 High Court of Australia [The appellant had been convicted of manslaughter arising from the supply to the deceased of methadone at premises in which the appellant and her husband resided. The deceased, who was manifestly under the influence of some substance, attended the premises and purchased methadone which he immediately

ingested. There was an issue at trial as to whether the appellant or her husband assisted the deceased to administer the drug or whether the deceased administered it by himself. The deceased became [page 192] obviously affected by the drug. The husband and another person present became so concerned that there was an offer to call him an ambulance which the deceased refused. The husband and the other person tried to assist the deceased to recover by walking him around the room. The appellant noticed the condition of the deceased and demanded that he leave the premises. The deceased left, followed by the husband, who shortly returned to the unit. The deceased’s body was later found in the toilet in the backyard of the premises. The Crown alleged that the appellant was guilty jointly with her husband of the manslaughter of the deceased. In respect of manslaughter by gross criminal negligence, the Crown alleged that the appellant had breached a duty of care to the deceased by failing to obtain medical assistance for him. The Court of Criminal Appeal dismissed the appeal against conviction.] French CJ: … [19] Involuntary manslaughter by criminal negligence at common law is made out if the prosecution shows that: the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment. [20] A person has no civil or criminal liability at common law for negligent conduct unless that conduct involves a breach of a duty of care owed to another. The existence and breach of such a duty is a necessary condition of a finding of criminal negligence. Lord Atkin in Andrews v DPP equated negligence with “the omission of a duty to take care”. In R v Adomako, Lord Mackay of Clashfern LC observed that “the ordinary principles of the law of negligence

apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died”. The question that follows is whether the breach of duty caused the death of the deceased and if so, whether the breach of duty could be characterised as gross negligence and therefore as a crime. The question of whether a given set of facts gives rise to a duty of care is a question for the judge. The question whether the facts exist is a question for the jury. [21] The issues of duty of care and criminally negligent breach of duty arise most acutely in cases of involuntary manslaughter by omission. It was the breach of a duty to the deceased by criminally negligent omission that formed the basis of the Crown case against Mrs Burns for manslaughter by criminal negligence. [22] A frequently cited taxonomy of the duties of care that may support a charge of involuntary manslaughter was set out by Yeldham J in R v Taktak. According to that taxonomy, which should not be regarded as exhaustive, criminal liability may arise for breach of a duty of care owed to another where: A statute imposes the duty. The duty arises from a certain status relationship. The duty arises from a contract. The duty arises from the voluntary assumption of the care of another, so secluding a helpless person as to prevent others from rendering aid. It is the last category of duty that was relied upon by the Crown in this case. In that category, as Yeldham J put it: the Crown must prove beyond reasonable doubt that the circumstances were such that the accused was under a duty to care for the deceased, which duty, as a result either of his gross negligence or perhaps of his recklessness, he failed to perform, with the consequence that death was caused or accelerated. [page 193] [23] A duty of care may also arise where a defendant has played a causative part in the sequence of events which have given rise to

the risk of injury, such that “a duty to take reasonable steps to avert or lessen the risk may arise”. That basis for a duty of care was relied upon by the Court of Criminal Appeal to support their Honours’ conclusion that it was open to the jury to find that a duty of care did exist in this case. Against that background of general principle, it is necessary to turn to the evidence at, and conduct of, the trial. … [His Honour then considered the evidence and the findings made in the Court of Criminal Appeal and went on.] [45] The question was whether there was evidence from which the jury could have found that Mrs Burns owed a duty of care to the deceased and if so, that she breached that duty in such a serious way as to constitute criminal negligence and that the breach caused his death. [46] Applying the taxonomy adopted by Yeldham J in Taktak, there was no statutory duty, no duty arising from a status relationship and no duty arising from contract. Mrs Burns could not be said to have voluntarily assumed the care of the deceased. Nor could it be said that she had so secluded him as to prevent others from rendering assistance. The only remaining basis for the imposition of a duty on her, and the basis relied upon in the Court of Criminal Appeal, was her allegedly causative role in the sequence of events said to have given rise to a risk to the deceased of serious injury or death on his part. [47] As explained in the joint reasons and noted above, it was not open to exclude as a reasonable possibility that the deceased injected himself with the methadone and that his decision to do so was voluntary. For present purposes therefore, the existence of a duty of care relevant to criminal negligence must be determined on the hypothesis, which cannot be excluded, that the deceased did so inject himself. That possibility, which cannot be excluded, marks a point of distinction between this case and cases in which the accused has created a danger to other people, for example by starting a fire, and thereafter failing to take any steps to remove the danger or warn those at risk of the danger. [48] If the deceased had ingested the drug himself and had rebuffed a suggestion that an ambulance be called, there could be no basis to support a finding that Mrs Burns owed a duty to him. On that

hypothesis, which cannot be excluded, the deceased had created the danger to himself. While Mrs Burns may well have been under a strong moral duty to take positive steps to dissuade him from leaving until medical assistance could be called, there was, in the circumstances, no legal duty, breach of which would support a finding of criminal negligence. For these reasons, and the reasons given in the joint judgment, I agree that there should not be a new trial … Gummow, Hayne, Crennan, Kiefel and Bell JJ: Manslaughter by gross negligence [97] Criminal liability does not fasten on the omission to act, save in the case of an omission to do something that a person is under a legal obligation to do. As a general proposition, the law does not impose an obligation on individuals to rescue or otherwise to act to preserve human life. Such an obligation may be imposed by statute or contract or because of the relationship between individuals. The relationships of parent and child, and doctor and patient, are recognised as imposing a duty of this kind. A person may voluntarily assume an obligation to care for a helpless person and thereby become subject to such a duty. Outside limited exceptions, a person remains at liberty in law to refuse to hold out her hand to the person drowning in the shallow pool. [98] The appellant had no relationship with the deceased beyond that of acquaintance. He called at her home to purchase prohibited drugs. He took the drugs in her home and [page 194] suffered an adverse reaction to them in her presence. He left her home at her request while in a compromised state. He died within hours as the result of the combined effect of the drug supplied by the appellant and drugs that he had earlier taken. In question is the source of the legal duty which obliged the appellant to obtain medical assistance for the deceased and how her failure to do so can be said to have been a cause of his death. [99] The trial judge gave these directions as to the existence and scope of any duty: If a person voluntarily invites or permits potential

recipients to attend his or her home for the purpose of a prohibited drug supply transaction where the drugs are to be consumed on the premises, and where such a recipient may be or become seriously affected by drugs to the point where his or her life may be endangered, the drug supplier has a duty to conduct himself toward the drug recipient without being grossly or criminally neglectful. [100] In the event that the jury were satisfied that the appellant had “voluntarily take[n] upon herself such a duty”, her failure to call an ambulance or obtain other medical assistance for the deceased and her conduct in expelling him from the unit when he was in a “grossly vulnerable condition” were the matters identified as capable of amounting to a criminally negligent breach of duty. [101] The appellant was not in a relationship with the deceased which the law recognises as imposing an obligation to act to preserve life. She had not voluntarily assumed the care of the deceased nor had she secluded him such as to deny him the opportunity that others would assist him. Different considerations may have applied in the trial of Brian Burns. At the appellant’s trial, the Crown accepted that she had not been subject to any obligation to seek medical attention for the deceased after he left the unit in company with Brian Burns. [102] Although the trial judge directed the jury to consider whether the appellant had voluntarily assumed a duty of care to the deceased, this was not the foundation for the duty which the Court of Criminal Appeal identified. It considered that the appellant had come under a duty of the kind found by the English Court of Appeal in R v Evans (Gemma). Gemma Evans supplied her 16 year old half-sister, Carly, with heroin. After Carly exhibited signs of opiate overdose, Gemma failed to seek medical assistance for her. The English Court considered that Gemma had been under “a plain and obvious duty to take reasonable steps to assist or provide assistance for Carly”. The duty did not arise because of the sibling relationship, but because Gemma had “created or contributed to the creation of a state of affairs” which she knew, or ought reasonably to have known, had become life threatening. This is a duty of a kind identified by the House of Lords in R v Miller. [103] In Miller, the accused was found to be criminally responsible

for his failure to take reasonable steps to prevent a house fire. Miller was squatting in the house. He fell asleep holding a lighted cigarette and woke to find the mattress on fire. He got up and moved to the adjacent room and went back to sleep. The house was damaged by the fire which had been ignited by the lighted cigarette. Following Miller’s conviction for arson, the question certified for the House of Lords was whether the accidental starting of a fire could be the actus reus of arson in circumstances in which the accused had subsequently failed to take steps to extinguish it, either intending to cause damage to property or being reckless as to that consequence. Miller’s conviction was upheld. In giving the judgment of the House of Lords, Lord Diplock said: I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one’s power to counteract a danger that one has oneself created … I cannot see any good reason why, so far as liability under criminal law is concerned, it should matter at what point of time before the resultant damage is complete a person becomes aware that he has done a physical act which, whether or not he appreciated that [page 195] it would at the time when he did it, does in fact create a risk that property of another will be damaged; provided that, at the moment of awareness, it lies within his power to take steps, either himself or by calling for the assistance of the fire brigade if this be necessary, to prevent or minimise the damage to the property at risk. [104] Sir John Smith has suggested that Miller is an example of a general principle, which he stated in these terms: [W]henever the defendant’s act, though without his knowledge, imperils the person, liberty or property of another, or any other interest protected by the criminal law, and the defendant becomes aware of the events

creating the peril, he has a duty to take reasonable steps to prevent the peril from resulting in the harm in question. [105] Whether this is a statement of the common law of Australia is not an issue presented by this appeal. Miller’s criminal responsibility, analysed in terms of a duty to take steps to extinguish the fire, arose because it was his act that imperiled the property. By contrast, here, as earlier explained, the imperilment of the deceased was the result of his act in taking the methadone. [106] Lord Diplock commented in Miller on the difficulty of defining those who are to be made subject to criminal liability for being bad Samaritans. Why is the appellant liable for the manslaughter of the deceased when Ms Malouf is not? It cannot be because the law imposes a general duty on suppliers of prohibited drugs to take reasonable steps to preserve the life of their customers. The supply of prohibited drugs is visited by severe criminal punishment in recognition of the harm associated with their use. The notion that at the same time the law might seek to regulate the relationship between supplier and user, by imposing a duty on the former to take reasonable care for latter [sic], is incongruous. What measures would reasonable care require? Should suppliers of prohibited drugs be required to supply clean needles and accurate information about safe levels of use? The duty that the Court of Criminal Appeal found the appellant to be under was not a general duty of this kind. It accepted the submission that a duty is imposed on the supplier of a prohibited drug in circumstances in which the drug is taken in the supplier’s presence. The rationale for that duty is not that the supplier has contributed to the endangerment of the user. Contribution to this state of affairs occurs at the point of supply, when, ordinarily, the supplier will have no control over whether and in what quantities the drug will be consumed. The duty that the Court of Criminal Appeal identified arose because, as it happened, the appellant was present when the deceased suffered the adverse reaction to the drug she had supplied. It is difficult to resist the conclusion that the duty is being imposed in these circumstances because it is an affront to morality that the supplier of a prohibited drug should not bear responsibility for the callous disregard for the life of the drug user. [107] However, courts must be circumspect in identifying

categories of relations that give rise to a previously unrecognised legal obligation to act. The relationship of supplier of prohibited drugs and recipient does not lend itself to the imposition of such a duty. Apart from considerations of incongruity, there is absent the element of control which is found in those relationships in which the law imposes a duty on a person to act to preserve life. [108] It is open to the legislature to criminalise the failure of the supplier of a prohibited drug to take reasonable steps to provide medical assistance to the drug user. This might be done by making the failure to act itself an offence or by imposing a statutory duty on the supplier with attendant liability for manslaughter in the case of gross breach. Difficult policy choices may be involved in the decision to enact an offence of either kind. The desirability of making drug suppliers responsible for the deaths of drug users is one objective to which reference has been made earlier in these reasons. Another objective may be to minimise the incidence of fatal drug overdoses. Exposing the supplier to [page 196] the risk of conviction for manslaughter (or other serious offence) when the user dies of an overdose at the supplier’s premises, while advancing the former objective, may not necessarily promote the latter. The development of the law along the lines urged by the Crown is a matter for the legislature and not the courts … Heydon J: Failure to seek medical attention [128] An omission to act where the act would have saved the life of another can be manslaughter. But omissions of this kind fall within confined categories. Those categories require particular kinds of relationship between the deceased and the accused. The relationship between the deceased and the appellant was insufficiently close to the accepted categories to justify its recognition as one of them. To extend those categories would be to change the criminal law retrospectively. [129] In 1879, Lord Blackburn, Mr Justice Barry, Mr Justice Lush and Sir James Fitzjames Stephen sat as a Royal Commission and issued a report annexing a Draft Code of Criminal Law. The report

dealt with what it saw as a fallacious attribution of “discretion” to judges deciding new cases: It seems to be assumed that when a judge is called on to deal with a new combination of circumstances, he is at liberty to decide according to his own views of justice and expediency; whereas on the contrary he is bound to decide in accordance with principles already established, which he can neither disregard nor alter, whether they are to be found in previous judicial decisions or in books of recognized authority. The consequences of this are, first, that the elasticity of the common law is much smaller than it is often supposed to be; and secondly, that so far as a Code represents the effect of decided cases and established principles, it takes from the judges nothing which they possess at present. For example, it never could be suggested that a judge in this country has any discretion at the present day in determining what ingredients constitute the crime of murder, or what principles should be applied in dealing with such a charge under any possible state of circumstances: and yet the common law definition of murder has in its application received a remarkable amount of artificial interpretation. The same observation is applicable to every other known offence. It is certainly applicable to the offence of manslaughter. To create a new category of omissions carrying responsibility for the crime of manslaughter would alter the ingredients of that crime. [130] On 20 October 1897, Sir Samuel Griffith wrote to the Attorney-General of Queensland enclosing his Draft Code of Criminal Law. In that letter, he referred to the Royal Commission’s report. The Royal Commission’s report proposed that all offences be prosecuted under the Code or some other statute only, not at common law. Sir Samuel quoted it as saying: The result of this provision would be to put an end to a power attributed to the judges, in virtue of which they have (it has been said) declared acts to be offences at Common Law, although no such declaration was ever

made before. And it is, indeed, the withdrawal of this supposed power of the judge to which the argument of want of elasticity is mainly addressed. Sir Samuel also quoted the following words: In bygone ages when legislation was scanty and rare, the powers referred to may have been useful and even necessary; but that is not the case at the present day. Parliament is regular in its sittings and active in its labours; and if the protection of society requires the enactment of additional penal laws Parliament will soon supply them. If Parliament is not disposed to provide punishment for acts which are upon any ground objectionable or dangerous, the presumption is that they belong to that class of misconduct against which the moral feeling and good sense of the community are the best protection. Besides, there is every reason to believe that the Criminal Law is, and for a considerable time has been, sufficiently [page 197] developed to provide all the protection for the public peace and for the property and persons of individuals, which they are likely to require under almost any circumstances which can be imagined; and this is an additional reason why its further development ought, in our opinion, to be left in the hands of Parliament. It is plain that Sir Samuel agreed with these ideas. [131] The “moral feeling” of the community would probably be strongly hostile to the appellant’s conduct in not summoning medical aid for the deceased. But that is no reason for a retrospective change in the criminal law to be made by this court.

WHERE THERE IS AN UNEXPECTED INCIDENT IN CARRYING OUT A

COMMON DESIGN 4.16 Another category of manslaughter may arise where the accused has agreed (and ‘agreed’ includes by tacit understanding) to commit a crime (the foundational offence) with the principal offender. If the principal offender kills another in the course of committing the foundational offence, in circumstances that amount to murder or manslaughter (the incidental offence), the accused, depending on the circumstances, may be found guilty of murder or manslaughter. 4.17 The elements of these forms of extended liability are considered in 10.62. As Adams J said in Taufahema (see 10.62 at [35]): In order for the appellant to be convicted of murder as a possible incident of carrying out the common design, it is essential that the prosecution prove that he foresaw that one of the other offenders might shoot at the police officer with the intention of killing him or causing him grievous bodily harm. If, on the other hand, the jury considered it reasonably possible that the appellant only foresaw, as a possible incident, that one of the other offenders might shoot the … [victim] (and possibly cause death or grievous bodily harm) but without foreseeing such an intent, then he would only be guilty of manslaughter …

See, for example, R v Duong (1992) 61 A Crim R 140 at 148– 149; R v Chai (2002) 76 ALJR 628; 128 A Crim R 101; and R v Rees [2001] NSWCCA 23.

ASSAULT CAUSING DEATH 4.18 As a result of media outcry following a number of cases where a person had been struck and killed in the inner city area of Sydney the government responded by creating an

offence to deal with a particular factual situation. That situation was where an innocent victim was suddenly, and without any apparent reason, punched to the head, causing the victim to strike the pavement resulting in fatal injuries. The person causing the assault was usually intoxicated. The media referred to it as ‘the coward punch’. There was no doubt that the conduct would amount to murder or manslaughter depending upon the intention of the person striking the victim. In reality it would be difficult for the Crown to prove an intention to kill or cause grievous bodily harm because of the single blow inflicted. However, [page 198] more than one such offender was dealt with for manslaughter. The resulting sentencing imposed on one of those cases again gave rise to media outrage and was increased on a Crown appeal; see R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120. By that time s 25A had been inserted into the Crimes Act and operated from 1 January 2012. 4.19 Section 25A is as follows: 25A Assault causing death (1) A person is guilty of an offence under this subsection if: (a) the person assaults another person by intentionally hitting the other person with any part of the person’s body or with an object held by the person, and (b) the assault is not authorised or excused by law, and (c) the assault causes the death of the other person. Maximum penalty: Imprisonment for 20 years. (2) A person who is of or above the age of 18 years is guilty of an offence under this subsection if the person commits an offence under subsection (1) when the person is intoxicated. Maximum penalty: Imprisonment for 25 years.

(3)

For the purposes of this section, an assault causes the death of a person whether the person is killed as a result of the injuries received directly from the assault or from hitting the ground or an object as a consequence of the assault.

(4) In proceedings for an offence under subsection (1) or (2), it is not necessary to prove that the death was reasonably foreseeable. (5) It is a defence in proceedings for an offence under subsection (2): (a) if the intoxication of the accused was not self-induced (within the meaning of Part 11A), or (b) if the accused had a significant cognitive impairment at the time the offence was alleged to have been committed (not being a temporary self-induced impairment). (6) In proceedings for an offence under subsection (2): (a) evidence may be given of the presence and concentration of any alcohol, drug or other substance in the accused’s breath, blood or urine at the time of the alleged offence as determined by an analysis carried out in accordance with Division 4 of Part 10 of the Law Enforcement (Powers and Responsibilities) Act 2002, and (b) the accused is conclusively presumed to be intoxicated by alcohol if the prosecution proves in accordance with an analysis carried out in accordance with that Division that there was present in the accused’s breath or blood a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood. (7) If on the trial of a person for murder or manslaughter the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence under subsection (1) or (2), the jury may acquit the person of murder or manslaughter and find the person guilty of an offence under subsection (1) or (2). The person is liable to punishment accordingly.

(8) If on the trial of a person for an offence under subsection (2) the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence under subsection (1), the jury may acquit the person of the offence under subsection

[page 199] (2) and find the person guilty of an offence under subsection (1). The person is liable to punishment accordingly. (9) Section 18 does not apply to an offence under subsection (1) or (2). (10) In this section, “cognitive impairment” includes an intellectual disability, a developmental disorder (including an autistic spectrum disorder), a neurological disorder, dementia, a mental illness or a brain injury.

Section 25B proscribes a minimum penalty of eight years non-parole period for a sentence for an offence under s 25A(2). 4.20 As has been noted, there is nothing in the nature of the facts to which s 25A was directed that would prohibit a person being charged and convicted of manslaughter by an unlawful and dangerous act. It is difficult to imagine that a striking of a person as envisaged by the section would not be a dangerous act. To some extent the offence resembles battery manslaughter discussed and rejected as part of Australian common law in Wilson above at 4.2, but there is no need to prove an intent to injure to any degree. The offence is unlike manslaughter in that there is no requirement to prove that the death was reasonably foreseeable. Unlawful and dangerous act manslaughter has an element requiring that the degree of risk imposed by the unlawful act creates an unreasonable risk of harm according to an objective standard. In negligent manslaughter the act or omission of the accused who breaches a duty of care must be an

unreasonable one. The only intention to be proved by the prosecution is an intention to assault the other person by striking him or her. That is an offence of basic intent for the law of intoxication (s 428E(2) of the Crimes Act) so that evidence of self-induced intoxication cannot be taken into account. The death of the person is an unintended and unforeseen consequence of the assault and to that extent liability for the death is absolute. 4.21 In Victoria a different approach, and it may be thought a more logical one, was taken to the same problem. Instead of creating a new offence, s 4A was inserted into the Crimes Act 1958 (Vic) that, in effect, declared a single punch to the head or neck of another person to be a dangerous act for the purposes of unlawful and dangerous act manslaughter. 4.22 The offence under s 25A(2) is unique in that it makes intoxication an element of an aggravated offence where the simple offence does not contain any element of intoxication. It can be contrasted with offences of driving with a prescribed concentration of alcohol. In those offences the degree of intoxication can give rise to an aggravated offence (eg, high range PCA) but the basic offence is based upon a degree of intoxication. The same can be said of aggravated dangerous driving based upon driving under the influence of alcohol. The other unique factor to offences in this state is the prescription of a minimum period of imprisonment so that the court’s sentencing discretion has been limited. 4.23 The offence is an alternative to a charge of murder or manslaughter: s 25A(7). This could produce a curious result. A person charged with manslaughter on the basis of unlawful and dangerous act could, hypothetically at least, be acquitted of manslaughter but convicted of an offence under s 25A(2). Normally an alternative [page 200]

charge is less serious than the indicted charge. Yet a conviction under s 25A(2) would on its face appear to be more serious, because, as has been pointed out, there is no requirement to prove that a reasonable person would find the accused’s act dangerous. Certainly manslaughter does not carry a minimum penalty and, although it notionally carries a maximum penalty of 25 years, it is rare for that penalty or anything approaching it to be imposed. Loveridge on the Crown appeal was resentenced for manslaughter to a sentence of 10 and a half years with a nonparole period of seven years for a course of violent behaviour.

CULPABLE KILLING 4.24 This chapter has reviewed the law of involuntary manslaughter, that is, manslaughter by unlawful and dangerous act, and manslaughter by criminal negligence. It has also noted the offence of assault causing death. Together with the concepts of voluntary manslaughter and murder, these offences represent the major offences for homicide in New South Wales. However, there are other offences allowing heavy penalties to be imposed for the culpable killing of another, most notably the offences of dangerous driving and dangerous navigation causing death — ss 52A and 52B respectively of the Crimes Act. They are beyond the scope of this book.

DISCUSSION QUESTIONS 4.25 In each case consider whether A is guilty of manslaughter. 1.

It is winter, and A’s swimming pool is not being used. The gate is faulty, but A thinks that he will wait until

next summer to fix it. A’s neighbourhood is full of young children who crawl everywhere. A goes away for the weekend, and when he returns home he finds that a neighbour’s child has found his way into the garden, has crawled into the pool area through the faulty gate, fallen into the pool and drowned. 2.

Same situation as in 1, except that the child is that of guests who had come for dinner, and the parents had specifically asked A whether he had fixed the gate. Not wanting to appear lazy, A had said yes. A knew that the child was a demon for the water, and that on a previous visit the child had been found in the pool area, reaching for the little rubber duckies which A left floating in the pool.

3.

A is a grossly naive and deeply stupid person. He goes out at night leaving his child unattended at home and, because it is cold and all of the blankets are wet, he leaves the child in the child’s bedroom with a portable gas heater burning. The child gets up in the night, knocks the heater over and is burnt to death. A is believed when he says that he honestly did not think that gas heaters could be tipped over without automatically shutting off.

4.

Assume that it is a criminal offence to own a dog of a breed bred to attack and fight other dogs. Assume that the punishment is a fine or imprisonment. [page 201] Assume that it is an offence to have any dog in a public park not on a leash: penalty under the local government regulation is a fine. A has his prohibited fighting dog in a park and lets it off the leash. It immediately attacks a child and mauls the child to death.

5.

6.

A assaults V at a party by throwing a Bloody Mary containing pepper sauce into V’s face. A acted impulsively, but states that if he had thought about it he would have believed the glass contained tomato juice only. V staggers back rubbing his eyes and falls through a plate glass door, severing his jugular vein. He dies. Certain classes of people are under statutory duties to report children who are at risk of violence at the hands of their parents. A, a medical practitioner, on a home visit to the house of V’s parents, recognises V to be at acute risk but fails to report this because A is going skiing for the weekend and is leaving immediately following the visit. On her departure from the house, the parents inflict a final beating on V, which kills the child.

1

See, generally, Green, ‘The Jury and the English Law of Homicide, 1200–1600’, (1976) 74 Michigan Law Review 413; Kaye, ‘The Early History of Murder and Manslaughter: Part II’, (1967) 83 Law Quarterly Review 569.

2

‘The Development of the Law of Homicide’, (1935) 9 Australian Law Journal, Supp 64, at p 64.

3

Rethinking Criminal Law, (1978), p 237.

4

(1877), Arts 222–223.

5

This aspect of the judgment does not appear in [1943] KB 174, or in [1943] WN 13.

6

This was not the view taken by Cox J in the instant case, his Honour being of the opinion that a ‘passing reference’ to Holzer in Coomer did not signify approval of that decision: R v Wilson (1991) 53 A Crim R at 297.

7

Again, Cox J declined to regard a ‘passing reference’ to Holzer as significant: R v Wilson (1991) 53 A Crim R at 298.

8

Section 353(1) of the Act empowers the Full Court, notwithstanding

that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, to dismiss the appeal ‘if it considers that no substantial miscarriage of justice has actually occurred’. 9

See Willis, ‘Manslaughter by the Intentional Infliction of Some Harm: A Category that should be Closed’, (1985) 9 Criminal Law Journal 109.

10

The approach taken in this judgment does not necessarily conflict with the concept of manslaughter under the Criminal Codes. Notwithstanding the existence of an unlawful and dangerous act, the ‘accident’ provision of the Codes may operate to relieve an accused of responsibility for a consequential death: R v Martyr [1962] Qd R 398. But, it would still be open to an accused, charged with manslaughter at common law, to argue that his or her unlawful and dangerous act did not cause the death. This aspect of the judgment does not appear in [1943] KB 174, or in [1943] WN 13.

11

See Willis, op cit, at pp 120, 124.

[page 202]

5 Non-fatal offences against the person INTRODUCTION 5.1 Chapters 2–4 consider the law that applies to fatal offences; that is, murder, manslaughter and assault occasioning death. This chapter and Chapter 6 deal with offences against the person where the conduct of the accused does not cause death. This chapter primarily considers the law of assault which forms the basis of most non-fatal offences against the person. Chapter 6 deals with sexual assault and related offences. 5.2 The New South Wales criminal law dealing with nonfatal offences is built upon the foundation stone of common law assault. To this basic offence has been added a number of other offences, each designed to fill perceived gaps in the law. The result is a myriad of statutory offences with a great deal of overlap and little clarity of principle for determining what sort of conduct should be the subject of criminal punishment. 5.3 The Model Criminal Code Officers Committee

(MCCOC) recognised that the vast number of offences and their overlap brought confusion in this area of law. MCCOC, Non-Fatal Offences Against the Person Model Criminal Code Report, Chapter 5, September 1998, pp 1–4 The criminal law about non-fatal offences against the person in all Australian jurisdictions is largely statutory and based on an adaptation, with a variety of alterations which have taken place over the years, of the English Offences Against The Person Act, 1861 (24&25 Vict c100). This legislation was itself not a codification, but a consolidation, of common [page 203] law and a variety of statutes on the subject which had developed over the centuries. The exception to this statement is Victoria, in which the old model was replaced by a quite different version by the Crimes (Amendment) Act 1985. … There are a number of reasons why this general structure of offences and some of the specific offences themselves require reform. The strength of the various arguments for reform will differ according to the extent to which the old structure and offences have been modified over the past century and more in each particular jurisdiction. The present structure of offences is confusing because of the considerable overlap which exists between a number of offences. The present structure of offences is anachronistic, both in terms of the kinds of offences which have survived to the present day and in terms of the concepts that are basic to the structure. An example of the former is specific offences dealing with assaulting or obstructing people in case of shipwreck, which derives directly from ‘wreckers’ legislation in 1753. An example of the latter is the distinction between ‘assault’ and ‘wounding’ which derives directly from the formulation of offences in days dominated by edged weapons. Traditional coverage is both over and under inclusive.

Common law assault and the equivalent Code offences extend to, for example, the merest application of any degree of force at all. On the other hand, the criminalisation of acts which endanger the lives and safety of others tends to be covered patchily and by very specific categories instead of by a general offence based on general and consistent principle. The wording and in particular the fault provisions of the older offences require translation into modern criminal law and social language, and examination in light of the fault requirements of modern offences. The fault requirements are still controversial after over a century. See R v Savage; R v Parmenter [1992] 1 AC 699, and commentary at (1992) 51 Camb LJ 6 and (1992) 108 LQR 187. The penalties attached to a variety of offences require rationalisation and reconsideration. Some offences dealt with under the old structure probably do not belong in this area of the law at all — for example, neglect of children — while some modern problems should be addressed in this structure — for example, offences involving firearms or torture. Old solutions for old problems long gone still survive. For example, the distinction between assault and wounding: The common law was quite relaxed about non-fatal, non-sexual offences against the person, and the first statute that dealt with the matter was 22&23 Car II, c 1, (1670): ‘An Act to prevent Malicious Maiming and Wounding’. The Act recites: Whereas upon the One and twentieth Day of December, in the Year of our Lord One thousand six hundred and seventy, a violent and inhuman Attempt was made upon the Person of Sir John Coventry Knight of the Honourable Order of the Bath, being a Member of the Commons House of Parliament, and then attending Parliament, and upon the Person of his Servant William Wylkes, by a considerable Number of armed Men, both on Foot and Horseback, whereby the said Sir John Coventry and his said Servant then lost several Goods; and the said Sir John

Coventry received divers Wounds, some of which were given him in such barbarous Manner, that some of the Offenders held him while other wounded him. The anachronistic offence of assaulting a magistrate engaged in the preservation of a wreck was enacted to deal with ‘wreckers’ in eighteenth century England. It can still be found in, for example, s 295 of the WA Criminal Code and s 20 of the SA Criminal Law Consolidation Act. It derives from An Act for Enforcing the Laws against Persons who [page 204] shall steal or detain shipwrecked Goods; and for the Relief of Persons suffering Losses thereby, 26 Geo II c XIX, (1753). As late as 1995, the English court of Appeal had to deal with the distinction between assault and battery and commented that ‘The present appeal … is of no practical importance whatsoever, but is yet another example of how bad laws cost money and clog up courts with better things to do’. R v Lynsey [1995] 3 All ER 654 at 655. In recent times, many jurisdictions have amended and addressed some of these problems with the 1861 offences. With the exception of Victoria, none has addressed the fundamentals of constructing a modern code of non-fatal offences against the person. As early as 1877, Stephen wrote of the 1861 offences and structure: Their arrangement is so obscure, their language so lengthy and cumbrous, and they are based upon and assume the existence of so many singular common law principles that no-one who was not already well acquainted with the law would derive any information from reading them. In recent times, this criticism has become a litany of judicial demands for reform. The latest may be found, for example, in Lynsey [1995] 3 All ER 654, appellate litigation rendered necessary only because of the anachronistic features of the old law. The House of Lords has described the result in the case before it as “the irrational result of this piecemeal legislation” (Savage; Parmenter [1992] 1 AC 699 at 712) and leading academic Andrew Ashworth has described it as an ‘antiquated and illogical structure’ (Principles

of Criminal Law (1991) at 281). The time has come to think again. In addition, of course, over the years the process of local amendment and replacement has meant that the basic law on offences against the person is different from jurisdiction to jurisdiction. Victoria has the most modern set of offences, New South Wales and South Australia the closest to the original English legislation, and the Code states have their own variations. In general terms, there is no case at all for there to be local differences in the general Australian laws which aim to protect the bodily integrity of Australian citizens, residents and visitors.

5.4 The range of non-fatal offences against the person in New South Wales can be seen by looking at the list of offences in the Crimes Act 1900 (NSW) (‘the Crimes Act’) that deal with conduct causing danger to life or bodily harm. The list of non-fatal offences against the person in New South Wales includes: 32 33 33A 33B 35 35A 37 38 38A 39 41 41A

Impeding endeavours to escape shipwreck Wounding or grievous bodily harm with intent Discharging firearm etc with intent Use or possession of weapon to resist arrest etc Reckless grievous bodily harm or wounding Causing dog to inflict grievous bodily harm or actual bodily harm Choking, suffocation and strangulation Using intoxicating substance to commit an indictable offence Spiking drink or food Using poison etc to endanger life or inflict grievous bodily harm Using poison etc to injure or to cause distress and pain Poisoning etc of water supply

[page 205] 42 43 43A

Injuries to child at time of birth Abandoning or exposing a child under 7 years Failure of persons with parental responsibility to care for child

44 45 46 47 48 49 49A 51A 52A(3) 52A(4) 52AB 52B(3) 52B(4) 53 54 55 56 57 58 59 59A 60 60A 60B 60E 61

Failure of persons to provide necessities of life Prohibition of female genital mutilation Causing bodily injury by gunpowder etc Using etc explosive substance or corrosive fluid etc Causing explosives to be placed in or near building, conveyance or public place Setting trap etc Throwing rocks and other objects at vehicles and vessels Predatory driving Dangerous driving occasioning grievous bodily harm Aggravated dangerous driving occasioning grievous bodily harm Offence of failing to stop and assist after vehicle impact causing death or grievous bodily harm Dangerous navigation causing grievous bodily harm Aggravated dangerous navigation occasioning grievous bodily harm Injuries by furious driving etc Causing grievous bodily harm Possessing or making explosives or other things with intent to injure Obstructing member of the clergy in discharge of his or her duties Assault on persons preserving wreck Assault with intent to commit a serious indictable offence on certain officers Assault occasioning actual bodily harm Assault during public disorder Assault and other actions against police officers Assault and other actions against law enforcement officers (other than police officers) Actions against third parties connected with law enforcement officers Assaults etc at schools Common assault prosecuted by indictment

It is not possible to consider all these offences in detail here. The emphasis is on assault, which is the ‘base’ offence for

many of the offences arising from the types of conduct listed above. Sexual offences which include the element of assault will be dealt with separately in Chapter 6. [page 206]

ASSAULT 5.5 The basic provision dealing with assault is s 61 of the Crimes Act, which states: Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.

5.6 The section does not give any definition of assault. For that we need to look to the common law. Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; [1968] 3 All ER 442 Queen’s Bench Division, UK [The appellant was reversing his car when a police officer directed him to drive the car forward to the kerbside and, standing in front of the car, pointed out a suitable place to park. The appellant stopped the car too far from the kerb so the officer asked him to park closer and indicated a precise spot. The appellant drove forward towards the officer and stopped with the offside wheel on the officer’s left foot. The officer told the appellant to get off his foot and received an abusive reply. The engine of the car stopped running. The officer repeated his request several times and the appellant finally said “Okay man, okay” and then slowly turned on the ignition of the car and reversed it off the officer’s foot. The appellant had either turned the ignition off to stop the engine or turned it off after the engine had stopped running. The appellant was convicted of assaulting a police officer in the execution of his duty, and appealed.] James J: … The justices at quarter sessions … were left in doubt

whether the mounting of the wheel on to the officer’s foot was deliberate or accidental. They were satisfied, however, beyond all reasonable doubt that the appellant “knowingly, provocatively and unnecessarily” allowed the wheel to remain on the foot after the officer said “Get off, you are on my foot”. They found that, on these facts, an assault was proved. Counsel for the appellant relied on the passage in Stone’s Justices Manual (1968 ed), Vol 1, p 651, where assault is defined. He contends that, on the finding of the justices, the initial mounting of the wheel could not be an assault, and that the act of the wheel mounting the foot came to an end without there being any mens rea. It is argued that thereafter there was no act on the part of the appellant which could constitute an actus reus, but only the omission or failure to remove the wheel as soon as he was asked. That failure, it is said, could not in law be an assault, nor could it in law provide the necessary mens rea to convert the original act of mounting the foot into an assault. Counsel for the respondent argues that the first mounting of the foot was an actus reus, which act continued until the moment of time at which the wheel was removed. During that continuing act, it is said, the appellant formed the necessary intention to constitute the element of mens rea and, once that element was added to the continuing act, an assault took place. In the alternative, counsel argues … that there can be situations in which there is a duty to act and that, in such situations, an omission to act in breach of duty would in law amount to an assault. It is unnecessary to formulate any concluded views on this alternative. In our judgment, the question arising, which has been argued on general principles, falls to be decided on the facts of the particular case. An assault is any act which intentionally — or possibly recklessly — causes another person to apprehend immediate [page 207] and unlawful personal violence. Although “assault” is an independent crime and is to be treated as such, for practical purposes today “assault” is generally synonymous with the term “battery”, and is a term used to mean the actual intended use of unlawful force to another person without his consent. On the facts of the present case, the “assault” alleged involved a “battery”.

Where an assault involved a battery, it matters not, in our judgment, whether the battery is inflicted directly by the body of the offender or through the medium of some weapon or instrument controlled by the action of the offender. An assault may be committed by the laying of a hand on another, and the action does not cease to be an assault if it is a stick held in the hand and not the hand itself which is laid on the person of the victim. So, for our part, we see no difference in principle between the action of stepping on to a person’s toe and maintaining that position and the action of driving a car on to a person’s foot and sitting in the car while its position on the foot is maintained. To constitute this offence, some intentional act must have been performed; a mere omission to act cannot amount to an assault. Without going into the question whether words alone can constitute an assault, it is clear that the words spoken by the appellant could not alone amount to an assault; they can only shed a light on the appellant’s action. For our part, we think that the crucial question is whether, in this case, the act of the appellant can be said to be complete and spent at the moment of time when the car wheel came to rest on the foot, or whether his act is to be regarded as a continuing act operating until the wheel was removed. In our judgment, a distinction is to be drawn between acts which are complete — though results may continue to flow — and those acts which are continuing. Once the act is complete, it cannot thereafter be said to be a threat to inflict unlawful force on the victim. If the act, as distinct from the results thereof, is a continuing act, there is a continuing threat to inflict unlawful force. If the assault involves a battery and that battery continues, there is a continuing act of assault. For an assault to be committed, both the elements of actus reus and mens rea must be present at the same time. The “actus reus” is the action causing the effect on the victim’s mind: see the observations of Parke B in R v St George (1840), 9 C & P 483 at pp 490, 493. The “mens rea” is the intention to cause that effect. It is not necessary that mens rea should be present at the inception of the actus reus; it can be superimposed on an existing act. On the other hand, the subsequent inception of mens rea cannot convert an act which has been completed without mens rea into an assault. In our judgment, the justices at Willesden and quarter sessions

were right in law. On the facts found, the action of the appellant may have been initially unintentional, but the time came when, knowing that the wheel was on the officer’s foot, the appellant (i) remained seated in the car so that his body through the medium of the car was in contact with the officer, (ii) switched off the ignition of the car, (iii) maintained the wheel of the car on the foot, and (iv) used words indicating the intention of keeping the wheel in that position. For our part, we cannot regard such conduct as mere omission or inactivity. There was an act constituting a battery which at its inception was not criminal because there was no element of intention, but which became criminal from the moment the intention was formed to produce the apprehension which was flowing from the continuing act. The fallacy of the appellant’s argument is that it seeks to equate the facts of this case with such a case as where a motorist has accidentally run over a person and, that action having been completed, fails to assist the victim with the intent that the victim should suffer. [Lord Parker CJ agreed with James J. Bridge J agreed that James J had correctly stated the principles of law but dissented on the application of those principles to the particular facts of the case. Appeal dismissed.]

[page 208]

Elements of assault Physical elements of assault 5.7 From Fagan (see 5.6) we can determine the elements of the offence of ‘assault’. An ‘assault’ in the broader, general sense of the term can be either: 1.

an assault in the restricted sense of a threat to bring about non-consensual contact; or

2.

a battery, in the sense of actual non-consensual contact with another person.

In the restricted sense assault is typically defined as a voluntary (see 2.6–2.7; see also Chapter 8) act which

intentionally or recklessly causes another person to believe he or she will be the victim of immediate and unlawful violence (Zanker v Vartzokas (1988) 34 A Crim R 11). But the act does not necessarily have to be a violent one — it can be through the use of words alone — and an assault in the restricted sense can be committed without touching the victim (R v Phillips (1971) 45 ALJR 467). The physical element of assault is a voluntary act of the accused that has the effect of putting the victim in fear. The fault element is a desire to create that fear, though there can be an assault even if the victim does not in fact fear violence (see Brady v Schatzel [1911] St R Qd 206). 5.8 The gist of ‘assault’ (using that term in its strict sense and as distinct from ‘battery’) is in putting the victim in fear of ‘immediate’ (violent, offensive, or otherwise nonconsensual) contact. The question in Mostyn was whether there could be an assault if the accused was not in a position to cause immediate violence. How immediate does the threatened contact have to be? R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97 NSW Court of Criminal Appeal McColl JA: The victim [Gina-Marie Miner] was subjected to violence in her home. She was struck and suffered a serious back injury. She fled the house. The Crown case was that: 20 Due to her back injury, the complainant could not stand upright and was doubled over. She heard the appellant calling out: “come out, come out wherever you are cunt”. She found a hiding place in one of the sheds on the property where there was some wood and a stack of tractor tyres which concealed her. She heard the appellant then talking to someone saying: “have you seen my cunt anywhere, I’m hunting”. 21 The appellant walked past the shed in which the complainant was hiding and at one stage came into the

shed and looked around. One side of the shed was completely open. The shed was made of corrugated iron and had a lot of pieces missing. She saw he had a rifle in his hands with one hand on the trigger and what looked to be a pistol shoved down the front part of his pants and a bayonet in one of his belt grips. 22 The complainant then heard the appellant yelling at someone: “get in the car or I’ll blow your fucking heads off”. Suspecting the police had arrived she came out of her hiding place and headed towards the road. She met a female police officer who pulled her behind a police car. She saw the appellant had the butt of the rifle up against his shoulder, his right [page 209] hand on the trigger. She heard him yelling at the police “to get in the car or he’d blow their fucking heads off”. The appellant was convicted of a number of offences including assault. The allegation of assault was based on the facts given, above, namely that he caused the victim to fear that she was going to be subject to further violence. He sought to appeal against his conviction for assault on the basis that the trial judge gave incorrect directions to the jury. … 60 The appellant relies on Knight v R (1988) 35 A Crim 314 to support his complaint that her Honour ought to have directed the jury that the accused had a present ability to effect his purpose or, to put it another way, that “an offer to strike a person at such a distance as to make contact impossible is not an assault”. 61 Knight was an appeal from a conviction, inter alia, of assault under s 61 of the Crimes Act. The assault was said to be constituted by words spoken by the appellant on the telephone. The Crown case in relation to the charges of assault was based on the evidence of the recipients of the calls as to what was said by the caller the nature of which, as described by Lee J (with whom Carruthers and Loveday JJ agreed), was threatening death or bodily injury to the recipients as well as being extremely abusive. Apart from that evidence it appears the jury also had before them the fact that the

calls had been made from an unknown address to a caller who took the call an appreciable distance away. This, as the Crown conceded on appeal (at 316), was a “long way out of firing distance”. 62 The Court quashed the conviction because the evidence was not sufficient to constitute evidence of assault, for there was nothing in the Crown case from which any conclusion could be drawn that any of the recipients of the calls were ever in any danger of immediate violence. As Lee J put it (at 317): But as to there being any evidence that those threats were threats of immediate violence it is clear that they were not. They were mere threats which may have been executed at any time, if at all. 63 His Honour considered Taylor J’s decision in Barton v Armstrong [1969] 2 NSWR 451. He accepted (at 318) Taylor J’s view that “a threat of violence made over the phone could be a threat of immediate violence in given circumstances, and thus an assault and accordingly I am not to be taken as saying that merely because a threat is made by phone it could thereby constitute an assault”. 64 In Knight, it was the absence of any evidence that the threats were threats of immediate violence which resulted in the appellant’s successful challenge to his conviction of assault. 65 It has long been held that threats which put a reasonable person in fear or apprehension of physical violence may constitute an assault even though the victim did not know when that physical violence may be effected: Barton v Armstrong [1969] 2 NSWR 451 at 454–455. In the latter judgment Taylor J made it clear that the essence of an assault constituted by threat rather than actual striking was the “expectation of physical contact which the offender creates in the mind of the person whom he threatens”. While his Honour acknowledged that in some cases an immediate ability to carry out the threat was one way of creating the fear of apprehension (455.45), his Honour also held that if the threat produced the fear or apprehension of physical violence then the law was breached even though the victim did not know when that physical violence may be effected. It was in that context that his

Honour held that threats uttered over the telephone which produced the fear or apprehension of physical violence may constitute an assault even though the victim did not know when that physical violence may be effected (455.50). [page 210] 66 Another illustration of the circumstances in which an assault might be constituted by a verbal threat sufficient to raise a reasonable apprehension of violence in Ms Miner’s mind can be seen from Zanker v Vartzokas (1988) 34 A Crim R 11 to which the Crown referred. 67 In that case, a woman accepted a lift from the accused. While the van was moving, he offered her money for sexual favours. She rejected the advances and demanded to be let out of the vehicle. The accused accelerated, saying “I am going to take you to my mate’s house. He will really fix you up.” She was put in fear and jumped out of the moving vehicle. The magistrate dismissed a charge of assault occasioning actual bodily harm on the basis that there was no fear of immediate violence, but fear of future violence. On appeal, White J held the woman was put in fear of relatively immediate imminent violence which continued to have effect as the vehicle continued toward the threatened destination while she was unlawfully imprisoned and at the mercy of the accused. That was sufficient for the charge of assault to be made out. 68 His Honour referred (at 14) to the fallacy in the defendant’s argument as being “the assumption that the words had effect only at the time when they were uttered and heard whereas they were ringing presently in her ears as a continuing threat, without the necessity for repetition, second by second as they progressed towards the house”. 69 After referring to various authorities, including Barton v Armstrong which required immediacy or imminence of the feared physical violence to constitute assault, White J gave the following illustration (at 17–18): During the course of argument, some examples were canvassed. In a hypothetical example, I asked counsel to assume that the defendant was threatening the victim in a

remote scrub area where he was stalking her and calling out threats to rape her if and when he caught her. I also asked counsel to assume that the defendant could catch her and carry out his threat at any time he wished and that both he and she knew this was so. While he was taking no immediate steps to carry out his threats he continued to pursue her because he enjoyed the prolongation of her fear. I expressed the opinion that his original words uttered in those circumstances constituted an assault, for the reasons already given, namely because her fear was a continuing fear induced by his original words in a situation where he remained in a position of dominance and in a position to carry out the threatened violence at some time not too remote, thus keeping the apprehension, the gist of assault, ever present in the victim’s mind. The facts in the present appeal are closely analogous to the facts in the hypothetical situation. 70 This is an apt analogy. Indeed, as the Crown submitted, it might be thought the violence threatened to Ms Miner was even more immediate than it was in Zanker, because the appellant “had already been violent towards [Ms Miner] in the house and had a short time before come at her in the car”. 71 I accept the Crown’s submissions. The authorities are clear that a threat to strike a person even at such a distance as to make contact impossible may constitute an assault if it instils a fear of immediate violence in the mind of the hearer. 72 The appellant’s challenge to the judge’s summing-up based on the proposition that “an offer to strike a person at such a distance as to make contact impossible is not an assault” is wrong as a matter of law. 73 I next turn to consider the appellant’s complaint that the trial judge did not direct the jury that in order to prove that the appellant had assaulted Ms Miner, the Crown had to prove that Ms Miner apprehended the infliction of immediate unlawful force to her person. The directions given — Count 4 74 The trial judge directed the jury as a matter of law that Count 4

required the Crown to prove beyond reasonable doubt that the accused had assaulted Gina-Marie Miner. She explained that “assault” was a “word in common everyday use” and that it might conjure up in the jury’s mind “the image of a person striking another person physically [page 211] whether with a hand, a fist or some hand-held implement”. She directed the jury that there are differences between the law and everyday parlance. She then said: For example, if I raised my hand at you in a menacing fashion and thereby caused you to fear that you were about to be struck then the law says that I have assaulted you. Ordinary use of the word assault would probably not have extended that far … alternatively, and this is relevant in respect of Count 4, an assault can be a threat of striking, touching or application of force. That is the threat of those things occurring again without consent, be (sic) intentional, not an accidental threat and it is without lawful excuse … in Count 4 what the Crown relies on is the threat of an assault, the threat of an application of force and then the other elements 2, 3 and 4. (Emphasis supplied) 75 The latter reference was a reference to MFI 101 where, in relation to the definition of assault and, in particular, an assault constituted by a threat of striking, touching or application of force, elements 2, 3 and 4 were set out as: 1.

It is without consent.

2.

It is intentional (not accidental).

3.

It is without lawful excuse.

76 When dealing with the facts in relation to Count 4, the trial judge reminded the jury that the Crown relied upon the “threat of striking, touching or application of force”. She reminded the jury that the Crown relied on the continuing threat, according to Ms Miner’s evidence, that the accused had said he was going to kill her when she was out in the car, that he smashed the car window, that she ran away but could not stand up and was bent over with

her head at her knees and that she heard the accused calling out: “come out, come out wherever you are”, that Ms Miner had hidden in a shed in a stack of tyres and heard the appellant say words to two men in the shed to the effect of “I am hunting”, and saw the accused with a rifle in his hands, a pistol down the front of his pants and a bayonet in one of his belt loops with his right hand on the trigger of the rifle and the left hand supporting the barrel. She drew the jury’s attention to the fact that the accused completely denied hunting the complainant and said he had remained in the house at all times until the police attended the property. 77 After recounting these facts the trial judge said to the jury: That evidence the Crown relies on to satisfy you beyond reasonable doubt that the accused threatened the complainant with immediate and unlawful violence. That is again that there was no consent, it was intentional and it was without lawful excuse which, as I say does not arise in circumstances as alleged by the Crown. 78 She then reminded the jury of the accused’s complete denial of ever hunting the complainant in the early hours of 24 November 2001. 79 In my view her Honour’s direction to the jury adequately identified the elements of the offence. It might be accepted that in her direction of law she did not parrot the words “immediate violence” but she used the phrase “about to be struck”, which, in my view, is synonymous. That was a correct statement of the law. 80 The jury would clearly have understood her explanation of the concept of an assault constituted by a threat rather than an actual blow as requiring a sense of immediate apprehension of violence. Indeed, the fact that the appellant’s counsel did not complain to her Honour about this direction makes it clear that in the atmosphere of the trial that was the sense conveyed by her remarks. [page 212] 81 Further, when dealing with the facts, her Honour expressly explained that the Crown relied upon the evidence she had summarised to satisfy them beyond reasonable doubt that the accused threatened the complainant with immediate and unlawful

violence — thus their attention was expressly drawn to the requirement of immediacy. … The no evidence ground 84 The appellant also complained that the evidence was not sufficient to convict the appellant of assault. [It was]… submitted that the complainant had given no evidence that she feared immediate violence and that it was not open to the jury, absent such evidence, to infer that that was her state of mind. 85 In my opinion that submission should be rejected for two reasons. First, although it must be accepted that Ms Miner did not state, in relation to the events which commenced with the smashing of the Laser’s passenger window, that she feared the appellant was about to wreak violence upon her, her actions were those of a frightened person. She had fled a house in which (on her account) the appellant had struck her repeatedly. She had first sought refuge in her car, then (unsuccessfully) in a neighbour’s house. When she was unable to raise the neighbours she hid in a shed under truck tyres. She remained hidden while observing the appellant moving nearby calling out for her whilst carrying a rifle, what appeared to be a pistol and a bayonet. She did not emerge from her hiding place until the police arrived. Her reaction to the appellant’s conduct was compelling evidence upon which the jury could rely to infer that she was afraid the appellant was about to apply force to her in some manner, whether by using the weapons with which he was armed or by striking or kicking her as he had earlier in that morning’s episode. 86 … [I]t is significant that no complaint was raised by counsel who appeared for the appellant at his trial (who was not counsel who appeared on the appeal). The appellant’s present complaint that there was no express evidence that the complainant feared immediate violence appears to me to have been developed as a result of the deplorable practice of subjecting a summing-up, after the trial is over, to a minute and detailed textual criticism in the hope of finding something on which to base an argument. In my view this complaint has no merit. It was of no significance to counsel at the trial and it should not be permitted to be raised on appeal. … [Studdert and Howie JJ agreed with McColl JA that the appeal

against conviction should be dismissed.]

Fault element of assault 5.9 In Fagan (see 5.6) the mental element for assault was described as an act that is performed ‘intentionally’ — or possibly ‘recklessly’. The question of what recklessness means, in the context of assault, was considered by the Supreme Court of South Australia in MacPherson v Brown. MacPherson v Brown (1975) 12 SASR 184 Supreme Court of South Australia [The appellant was a student at Flinders University and Dr Gibbs was a lecturer there. There had been an occupation of the university’s administration building by students, and Dr Gibbs, and others, were involved in reoccupying that building. The next day, [page 213] as Dr Gibbs was passing a crowd of students, he was physically surrounded by 30 or so students, including the appellant. There was an exchange of words. The magistrate found that the words were not threatening but were intended to ‘harass Gibbs by questioning him in public’. Although Gibbs did at some stage fear physical violence that fear was not long lasting. After 10 to 15 minutes, Gibbs was allowed to proceed on his way. The magistrate convicted the appellant of assault. He appealed from that decision.] Bray CJ: … The learned Special Magistrate has decided that there may be a reckless assault and I assume that this is so, as I think that it probably is, but it is not necessary to canvass the matter here. He further decided that that phrase covers not only a case where the defendant knows, though he may not desire, that the victim may be put in fear of immediate unlawful violence by his conduct and nevertheless persists, but also a case where, though he does not know that, he ought to know it. This, as I see it, is another example of the persistent heresy of objective guilt, the defendant being judged not by what he actually foresaw but by what he should as a reasonable man have foreseen. …

“Reckless” is in truth an unfortunate word. In one sense it means acting with foresight of the probable dangerous consequences of the act even without the desire for them. But as Howard says, at pp 56–57: It should be said that although the meaning given to the word “reckless” here is generally accepted (ie involving foresight of the consequences) and in common use, the courts sometimes use it to mean a high degree of negligence ie, a highly blameworthy degree of inadvertence to consequences. In this sense recklessness is synonymous with criminal negligence. The usage adopted in this book is preferred because it avoids possible confusion between certain forms of advertent and inadvertent conduct. (The italics and the words in brackets are mine.) In other words, the term “recklessness” is sometimes confined to advertent conduct and sometimes used to include inadvertent conduct. The resulting confusion is considerable and deplorable. It is much to be desired that the word “reckless” should be confined to action where the relevant consequences are adverted to even if not desired. … It is contrary to fundamental principles and the whole tenor of modern thought to judge a man in a criminal court, except under statutory compulsion, not by his actual intention, knowledge or foresight, but by what a reasonable and prudent man would have intended, known or foreseen in the circumstances. I put it to Mr Wilson that if his argument were correct a man who drove negligently down the street putting a pedestrian in fear of injury might be guilty of an assault even if he did not know the pedestrian was there or direct his mind to any such possibility. Mr Wilson did not shrink from that result but I do. The analogy of manslaughter was mentioned. But manslaughter is sui generis amongst common law crimes. There, exceptionally, a very high degree of negligence causing death, even though inadvertent, may constitute the mental element in the crime. Even then the degree of negligence must be very high, far higher than that necessary to support a civil action, and in this case the learned Special Magistrate did not direct his attention to the degree of the

negligence of which he found the appellant guilty. But there is no common law crime of causing injury by negligence when the injury falls short of death. There is no crime which stands to assault as murder stands to manslaughter. So, too, negligent conduct is often made punishable by statute: see for example R v Coventry (1938) 59 CLR 633. But we are concerned here only with the common law. I think, therefore, that the learned Special Magistrate was wrong when he said that if a defendant charged with assault indulges in conduct which he ought to know may harm or give cause for belief of imminent harm the necessary intention is there. Actual knowledge is necessary. … [page 214] Zelling J: … There is no doubt that the authorities support the proposition that an assault includes a threat to inflict unlawful force slight or great upon another man, coupled with the intention by the person making the threat to produce the expectation of unlawful physical contact in the mind of the victim, and that it is irrelevant, where this is material, that the person making the threat had neither the intention nor the ability to inflict the unlawful contact which he had induced the victim to expect. After quoting from Kenny’s Criminal Law and Howard’s Australian Criminal Law on these matters, the Magistrate then added to the statement which he had quoted from Professor Howard’s book, the observation that if a defendant indulges in conduct which he knows or ought to know may harm or give cause for such a belief then the necessary intention is made out. Here the Magistrate clearly went wrong. The conduct must be intentional in the sense that the accused adverted to the consequences of his reckless conduct. … Dealing first then with an assault strictosensu I have no doubt the learned Magistrate misdirected himself. It was held by Lord Parker LCJ, and James J, Bridge J dissenting on the facts, in Fagan v Commissioner of Metropolitan Police that “An assault is any act which intentionally — or possibly recklessly — causes another person to apprehend immediate and unlawful personal violence.” The word “possibly” in that quotation can now be deleted following the decision of the Court of Appeal in R v Venna [1976] QB 421; [1975] 3 All ER 788 (The Times 1st August 1975), where

the Court of Appeal stated that the mens rea of assault is sufficiently established by proof of the mental element of recklessness. The difficulty, however, with the Magistrate’s finding is that “recklessness” in this context connotes an advertence to the consequences of the defendant’s act or series of acts. His finding that the defendant ought to have known is not sufficient for this purpose. This would appear to follow also from the judgment of the High Court of Australia in Vallance v R (1961) 108 CLR 56, even though this is a decision on the wording of s 13 of the Tasmanian Criminal Code. Personally I wish that those dealing with this branch of the law would cease to use the word ‘reckless’ with its emotional overtones and use the much more accurate periphrasis of conduct by an accused advertent of the relevant consequences. [Zelling J then went on to find, on the facts, that the defendant had committed an assault when he falsely imprisoned Gibbs and would have dismissed the appeal. Jacobs J agreed with Bray CJ. Appeal upheld.]

Stalking, intimidation and domestic violence 5.10 The fact that the threat must be immediate has made it difficult to proceed against people who ‘stalk’ or ‘intimidate’ another person. This has been rectified by s 13 of the Crimes (Domestic and Personal Violence) Act 2007, which creates the offence of stalking or intimidation with intent to cause fear of physical or mental harm. Apprehended domestic violence orders 5.11 In Chapter 1, in the discussion of Kable (see 1.27), the shortcomings in the law’s ability to protect people from future or threatened violence was noted. As indicated in the summary of ‘assault’ (at 5.7), the definition of assault, which requires threats of immediate contact, has made it difficult to proceed against people who stalk or harass others. In the area of domestic violence these issues have been compounded

[page 215] by the difficulties in obtaining evidence of crimes which occur largely in private and where power imbalances make it difficult for victims to speak out. 5.12 In response to these concerns, New South Wales introduced apprehended violence orders (AVOs), which allow a court to make orders restraining a person’s behaviour when there is reason to think that person may be violent towards or stalk or harass another. Originally limited to people in domestic relationships (apprehended domestic violence orders (ADVOs)), the scheme has been expanded to allow neighbours and other people who have not been in a domestic relationship with the alleged harasser to obtain what are popularly called ‘restraining orders’ (APVOs, or apprehended personal violence orders). 5.13 The power of a court to make an ADVO is set out in s 16 of the Crimes (Domestic and Personal Violence) Act 2007. The power of a court to make an APVO is set out in s 19. Although the two sections are very similar, note that they are not identical. Crimes (Domestic and Personal Violence) Act 2007 16 Court may make apprehended domestic violence order (1) A court may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears: (a) the commission by the other person of a personal violence offence against the person, or (b) the engagement of the other person in conduct in which the other person: (i)

intimidates the person or a person with whom the person has a domestic relationship, or

(ii) stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order. (2) Despite subsection (1), it is not necessary for the court to be satisfied that the person for whose protection the order would be made in fact fears that such an offence will be committed, or that such conduct will be engaged in, if: (a) the person is a child, or (b) the person is, in the opinion of the court, suffering from an appreciably below average general intelligence function, or (c) in the opinion of the court: (i)

the person has been subjected at any time to conduct by the defendant amounting to a personal violence offence, and

(ii) there is a reasonable likelihood that the defendant may commit a personal violence offence against the person, and (iii) the making of the order is necessary in the circumstances to protect the person from further violence. (3) For the purposes of this section, conduct may amount to intimidation of a person even though: (a) it does not involve actual or threatened violence to the person, or (b) it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person.

[page 216] 5.14 The effect of s 16 (and s 19) is that the court must be satisfied, on the balance of probabilities, that a person for whose protection the order is made:

has reasonable grounds to fear (an objective test); and does, in fact, fear (a subjective test) that they may be subject to violence, intimidation or stalking. 5.15 A personal violence offence is defined by s 4 of the Crimes (Domestic and Personal Violence) Act 2007 as, among other things: murder; manslaughter; attempted murder; wounding or inflicting grievous bodily harm with intent; assault; sexual assault; and other offences intended to injure. 5.16 Before making an apprehended violence order, the court is required to make inquiries into the complainant’s state of mind: does he or she fear violence, and is that fear reasonable? The inquiry is not directed to whether the offender intends violence. If the complainant fears, and has reasonable grounds to fear, that he or she may be the victim of a personal violence offence or other conduct identified in the section, the court may make the order. 5.17 An order may be made if the person seeking protection fears conduct other than physical violence, for example, conduct that amounts to intimidation or stalking (that is, following ‘… a person about or the watching or frequenting of the vicinity of or an approach to a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure

activity’2). The fact that intimidation is not limited to threats of physical violence is made clear by ss 16(3) and 19(3). 5.18 When making an apprehended violence order a court can tailor the order to protect the individual applicant. The court’s discretion is very wide and it ‘may impose such prohibitions or restrictions on the behaviour of the defendant as appear necessary or desirable to the court …’ (s 35(1)). 5.19 Once an ADVO or APVO is made, it is an offence (punishable by a maximum of two years’ imprisonment and/or a fine of 50 penalty units,3 to breach it. Section 14 of the Act requires that, if the breach involves actual physical violence, the offender should go to gaol. [page 217] 14 Offence of contravening apprehended violence order (1) A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence. Maximum penalty: Imprisonment for 2 years or 50 penalty units, or both. … (4) Unless the court otherwise orders, a person who is convicted of an offence against subsection (1) must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person. (5) Subsection (4) does not apply if the person convicted was under 18 years of age at the time of the alleged offence. (6) Where the court determines not to impose a sentence of imprisonment, it must give its reasons for not doing so.

5.20 The value of this scheme is that it allows the court to create a private legal regime to suit the needs of the person in need of protection. The court can impose whatever restrictions are required. For example, the court could restrict

the defendant’s behaviour so that he or she is not allowed near the applicant’s home or not allowed to approach the person in need of protection at his or her workplace or to contact them by telephone. The consequence is that conduct that would be legal without such an order becomes illegal for the defendant. The police can take action against the defendant for breaching the terms of the order without the need to wait for actual violence.

BATTERY Physical elements of battery 5.21 ‘Battery’ means the actual, intentional or reckless, bringing about of violent, offensive, or otherwise nonconsensual, contact with the person of another. The physical elements of the offence are a voluntary act (see 2.6–2.7; see also Chapter 9 on duress, necessity and self-defence), which directly and immediately results in such contact. Collins v Wilcock [1984] 3 All ER 374 Queen’s Bench Division (UK) [The appellant was approached by police who wanted to ask her some questions. She refused to co-operate and walked away. One of the police officers grabbed her arm in order to restrain her so that they could ask their questions. The appellant scratched the officer and was charged, and convicted, of assaulting a police officer in the execution of her duty. On appeal, the appellant argued that the officer had assaulted her when she grabbed her arm in order to restrain her, the officer having no lawful authority to force the appellant to stop and answer questions. Accordingly, so it was argued, the officer was not acting in the execution of her duty when scratched by the appellant.] [page 218]

Robert Goff LJ: … The law draws a distinction, in terms more easily understood by philologists than by ordinary citizens, between an assault and a battery. An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person. Both assault and battery are forms of trespass to the person. Another form of trespass to the person is false imprisonment, which is the unlawful imposition of constraint on another’s freedom of movement from a particular place. The requisite mental element is of no relevance in the present case. We are here concerned primarily with battery. The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery. So Holt CJ held in 1704 that ‘the least touching of another in anger is a battery’: see Cole v Turner 6 Mod Rep 149, 90 ER 958. The breadth of the principle reflects the fundamental nature of the interest so protected; as Blackstone wrote in his Commentaries, ‘the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner’ (see 3 Bl Com 120). The effect is that everybody is protected not only against physical injury but against any form of physical molestation. But so widely drawn a principle must inevitably be subject to exceptions. For example, children may be subjected to reasonable punishment; people may be subjected to the lawful exercise of the power of arrest; and reasonable force may be used in self-defence or for the prevention of crime. But, apart from these special instances where the control or constraint is lawful, a broader exception has been created to allow for the exigencies of everyday life. Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is (within reason) slapped

(see Tuberville v Savage (1669) 1 Mod Rep 3, 86 ER 684). Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life. We observe that, although in the past it has sometimes been stated that a battery is only committed where the action is ‘angry, or revengeful, or rude, or insolent’ (see 1 Hawk PC c 62, s 2), we think that nowadays it is more realistic, and indeed more accurate, to state the broad underlying principle, subject to the broad exception. Among such forms of conduct, long held to be acceptable, is touching a person for the purpose of engaging his attention, though of course using no greater degree of physical contact than is reasonably necessary in the circumstances for that purpose. So, for example, it was held by the Court of Common Pleas in 1807 that a touch by a constable’s staff on the shoulder of a man who had climbed on a gentleman’s railing to gain a better view of a mad ox, the touch being only to engage the man’s attention, did not amount to a battery (see Wiffin v Kincard (1807) 2 Bos & PNR 471, 127 ER 713; for another example, see Coward v Baddeley (1859) 4 H & N 478, 157 ER 927). But a distinction is drawn between a touch to draw a man’s attention, which is generally acceptable, and a physical restraint, which is not. So we find Parke B observing in Rawlings v Till (1837) 3 M & W 28 at 29, 150 ER 1042, with reference to Wiffin v Kincard, that “There the touch was merely to engage a man’s attention, not to put a restraint on his person”. Furthermore, persistent [page 219] touching to gain attention in the face of obvious disregard may transcend the norms of acceptable behaviour, and so be outside the exception. We do not say that more than one touch is never permitted; for example, the lost or distressed may surely be permitted a second touch, or possibly even more, on a reluctant or impervious sleeve or shoulder, as may a person who is acting reasonably in the exercise of a duty. In each case, the test must be whether the physical contact so persisted in has in the circumstances gone beyond generally acceptable standards of conduct; and the answer to that question will depend on the facts of the particular case.

[It was held that the conduct of the police was an unlawful assault. Appeal upheld.]

5.22 In R v DMC (2002) 137 A Crim R 246, the court found that the question — whether the accused’s conduct in attending his sister-in-law’s home in order to forcibly take his 15-year-old daughter home was ‘physical contact an ordinary incident of social intercourse’ — should have been left for the jury to decide.

Fault element of battery 5.23 A battery is clearly established if the defendant intended to apply physical force to the victim without lawful authority or consent. The question has also arisen whether one can be guilty of ‘battery’ due to recklessness. R v Williams (1990) 50 A Crim R 213 NSW Court of Criminal Appeal [The appellant was charged with malicious wounding, and, in the alternative, with assault occasioning actual bodily harm. He was acquitted of the first charge, but convicted of the second.] Badgery-Parker J: In the early hours of the morning of 12 August 1984 two incidents occurred in the premise of a licensed club at Narrandera. They were separated by at most a few minutes, and each involved the appellant and one Leslie French. The first was a fight in the course of which the appellant received a significant wound to his face when struck with a glass. At a later date but before the trial out of which this appeal arises, French was acquitted by a jury upon a charge relating to that incident. The second was a further fight between the two men, which was begun by the appellant, he no doubt seeking revenge for the injury that he had sustained. In this struggle, the appellant bit French’s ear, severing a portion of it … The substance of the first ground of appeal is that the trial judge wrongly directed the jury that they could find an assault proved, if

satisfied that the accused bit Mr French either deliberately or recklessly. Most commonly (but not essentially) the assault which supports a conviction for the offence under s 59 of the Crimes Act 1900 (NSW) will (as here) involve a battery, an actual application of force. It is well established that such actual application of force may be deliberate, that is the assailant intended to strike the complainant, or reckless, that is the assailant struck out foreseeing or knowing that he might hit somebody and not caring if he did: see Venna [page 220] [1976] QB 421 at 426–429. In particular (at 429), James LJ (delivering the judgment of the Court of Appeal Criminal Division) said: In our view the element of mens rea in the offence of battery is satisfied by proof that the defendant intentionally or recklessly applied force to the person of another … We see no reason in logic or in law why a person who recklessly applies physical force to the person of another should be outside the criminal law of assault. In many cases the dividing line between intention and recklessness is barely distinguishable. This is such a case. So, it seems to me, is the present case. In Revell (unreported, Court of Criminal Appeal, NSW, 17 December 1976), O’Brien J (with whom Street CJ and Collins J agreed) referred to Venna with approval. His Honour said: … a reading of the judgment generally indicates that the court was of the view that a reckless application of any degree of violence which in fact caused actual bodily harm was sufficient mens rea to constitute the offence. I am of the opinion that this ground of appeal fails. … The appellant’s next ground of appeal was to this effect: that, if it were correct that an assault might (as I have held) be committed by a reckless act, his Honour failed adequately to direct the jury as to the meaning of recklessness. Again I preface my remarks with the comment that the role of this Court is not to subject a summing up to meticulous scrutiny and to intervene merely because directions

might have been given more fully or better expressed, so long as they convey to the jury what is necessary to be known by the jury in order to discharge its function. The word ‘reckless’ is a word well known in ordinary speech, and a person is said to be ‘reckless’ who acts without regard to the possible consequences of the act in question. In most contexts the law gives to the word the same meaning that it has in ordinary speech. In the specific context of the definition of murder, it has been held that ‘reckless indifference to human life’ entails foresight of the probability (not just the possibility) that death will result: Crabbe (1985) 156 CLR 464; 16 A Crim R 19. But that is not the sense in which the word ‘reckless’ is ordinarily used. … [His Honour referred to the concept of recklessness as it operates in the context of sexual assault (see 6.7–6.42), and continued:] In this context, the concept of recklessness is no more than is conveyed by the ordinary meaning of the word: Hemsley (1988) 36 A Crim R 334. It involves no more than foresight of the possibility of harmful consequence. It is true that in some contexts the word is used in ordinary speech as importing a high degree of negligence, as perhaps when one speaks of driving in a reckless manner, but as a description of the conduct of a person involved in a fight with another man, its meaning in ordinary speech is no different from its meaning in law, and in my view there was absolutely no necessity for his Honour to expand upon the meaning of recklessness in any fashion other than as he in fact did. Dealing with the meaning of ‘malicious’ his Honour said: There is an alternative and that is if you are not satisfied that the accused intended to do something to cause physical harm or injury to Mr French but that he was so indifferent to Mr French’s suffering that he did it recklessly or wantonly, that is to say in this case that he bit something, the ear, not caring whether it did or did not cause harm to Mr French, physical harm. You will see the consideration of that question involves you considering the state of mind of the accused … His Honour repeated that direction further down the same page. That is an adequate description of the ordinary meaning of the term ‘reckless’, and it made the all important point that the test was

subjective, that the jury were concerned with the state of mind of the accused himself. It is true that that direction was given specifically in the context of the first count in expounding the meaning of the word ‘maliciously’, and not specifically in the context of the second count where his Honour contented himself with directing [page 221] the jury that it was sufficient if they were satisfied by ‘that he deliberately bit the ear or recklessly bit the ear of Mr French’. However, as the trial had been short, so too the summing up was short, and there is no reason to believe that the jury would not have understood that the word ‘reckless’ in relation to reckless biting carried the ordinary meaning of the word in ordinary speech, just as it did in relation to recklessness as part of the concept of maliciousness. In my view the directions were adequate and this ground of appeal fails also. … [Gleeson CJ and Wood J agreed with the reasons and concluding remarks of Badgery-Parker J. Appeal dismissed.]

AGGRAVATED ASSAULTS 5.24 As stated at 5.2, ‘assault’ (meaning either assault or battery) is a building-block offence. Apart from simple or common assault under s 61 (also referred to as ‘assault simpliciter’), there can be aggravated assaults. Assaults may be aggravated because of the damage done, for example, assault occasioning actual bodily harm (Crimes Act s 59) or because of the office or status of the person assaulted, for example, assault of a police officer (s 60) or assault of a law enforcement officer other than a police officer (s 60A). Each of these offences requires an ‘assault’ as the base element, coupled with the aggravating factor. 5.25 In Williams (see 5.23) the court considered the offence of assault occasioning actual bodily harm. It was held (in parts of the judgment omitted from the extract) that there

was no obligation to prove an intention to cause actual bodily harm. If the assault (battery) took place and actual bodily harm was the consequence, the offence was made out without the need to establish any fault element other than the necessary intent, or foresight, for common assault. 5.26 With respect to assaults that are aggravated by the damage caused, two concepts that can be defined are ‘wounding’ and ‘grievous bodily harm’.

Wounding 5.27 In R v Shepherd [2003] NSWCCA 351, the Court of Criminal Appeal considered the meaning of ‘wounding’. Kirby J (Meagher JA and Shaw J agreeing) said that: 31. … The term is not defined by the Act. A wounding is generally assumed to be ‘the infliction of an injury which breaks the continuity of the skin’ (cf R v Newman (1948) ALR 109 at 110). In R v Smith (1837) 8 Carrington & Payne 173, the prisoner was charged with assault, cutting and wounding the victim on the left side of the face. It was the Crown case that he had struck the victim with a hammer, breaking his jaw in two places. The hospital reported that the skin was broken internally, but not externally. The issue arose whether that was ‘wounding’ within the Statute. The Court held it was. The case is generally cited for the following proposition (see Howie & Johnson, ‘Annotated Criminal Legislation of NSW’ (2002/2003 Ed)): (p 653)

[page 222] ‘Wounds’ is an injury involving the breaking or cutting of the interior layer of the skin (dermis) and the breaking of the outer layer (epidermis) is not sufficient. 32. A wound may be inflicted by a fist. No instrument or weapon need be used (R v Bullock (1868) LR 1 CCR 115, per Coxburn CJ at 117). However, a split lip or, as here, upper

and lower lips, inflicted by a punch, is a ‘wounding’ only in the most technical sense.

Grievous bodily harm 5.28 Grievous bodily harm is bodily injury of a really serious kind (DPP v Smith [1961] AC 290; [1960] 3 All ER 161). In R v King (2003) 59 NSWLR 472 (see 2.15) it was held that the killing of the foetus can amount to the infliction of grievous bodily harm upon the mother. The definition of ‘grievous bodily harm’ is now included in s 4 of the Crimes Act: 4 Definitions … Grievous bodily harm includes: (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).

Note the definition is non-exhaustive, and includes the infliction of a ‘grievous bodily disease’ such as HIV-AIDS. (As to consent in this context see 5.40.) 5.29 In 2007 the Crimes Act was amended to replace ‘malice’ with ‘recklessness’ as a fault element in relation to various offences. In Blackwell v R the court considered ‘recklessness’ as a fault element in the context of an offence under the provisions of ss 33 and 35 as they then were. Blackwell v R (2011) 81 NSWLR 119; 208 A Crim R 392; [2011]

NSWCCA 93 NSW Court of Criminal Appeal [The appellant had had been convicted on 18 December 2008 of maliciously inflicting grievous bodily harm with intent contrary to s 33(1)(b) of the Crimes Act, by ‘glassing’ a man in a Sydney hotel.] Beazley JA: In R v Cunningham [1957] 2 QB 396 the English Court of Criminal Appeal approved the following as an accurate statement of the law: In any statutory definition of a crime malice … [requires] either: (1) an actual intention to do the particular kind of harm that in fact was done; or [page 223] (2) recklessness as to whether such harm should occur or not (ie, the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). [His Honour then discussed several UK authorities and the decision of the High Court of Australia in Banditt v R, and continued:] The effect of this line of authority is that where the mental element of an offence is recklessness, the Crown must establish foresight of the possibility of the relevant consequence. Subject to the question of what is the relevant consequence for the purposes of s 35(2), the suggested jury direction in the Criminal Trial Court Bench Book reflects this approach. However, the appellant submitted that this Court should apply the decision of the Victorian Court of Appeal in Campbell. In that case, the Court was concerned with the following provision: “A person who, without lawful excuse, recklessly causes serious injury to another person is guilty of an indictable offence.” Hayne JA and Crockett AJA said, at 592: In our view there is little doubt that the trial judge misdirected the jury. We have no doubt that the appropriate test to apply is that it is possession of foresight

that injury probably will result that must be proved. As said by the High Court in its joint judgment in R v Crabbe [1985] HCA 22; (1985) 156 CLR 464 at 469–70: It should now be regarded as settled law in Australia, if no statutory provision affects the position, that a person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result, is guilty of murder … It is not enough that he does the act knowing that it is possible but not likely that death or grievous bodily harm might result. Whilst that citation is from a case specifically regarding murder, the same principles are relevant. Indeed the Court of Criminal Appeal in R v Nuri [1990] VicRp 55; [1990] V.R. 641 said at 643: Presumably conduct is relevantly reckless if there is foresight on the part of the accused of the probable consequences of his actions and he displays indifference as to whether or not those consequences occur. In my opinion, this Court should not follow the Victorian decision of Campbell. That decision is inconsistent with authority in the High Court, New South Wales and in England. The Attorney General expressly referred to the test for recklessness stated by Hunt J in Coleman when commenting upon the proposed legislative changes to s 35. Accordingly, in this case, the jury should have been directed in terms that if the appellant was to be found guilty on the alternative count, they had to be satisfied that he realised that by thrusting the glass into Mr Ward’s face, it was possible that grievous bodily harm, that is really serious injury, would be inflicted and yet went ahead and acted.

5.30 In Blackwell, therefore, the court held that the offence of ‘recklessly inflicting grievous bodily harm’ required recklessness by the accused as to the causing of grievous bodily harm, not merely some physical harm as had been the case before 2007. In 2012 the New South Wales Parliament passed the Crimes Amendment (Reckless Infliction of Harm) Act

2012. (This amendment commenced on 21 June 2012.) This further amended the Act in relation to offences involving the reckless infliction of grievous bodily harm and reckless wounding. The effect of the amendments was to change the Act to the pre-Blackwell position. That means, for the following offences, only recklessness as to the causing of actual bodily harm — not grievous bodily harm — is required to satisfy the mental element of grievous bodily harm: [page 224] 35 60 60A 60E 105A

Reckless grievous bodily harm or wounding; Assault and other actions against police officers; Assault and other actions against law enforcement officers (other than police officers); Assaults etc at schools; Definitions for the purposes of ss 109–113.

ASSAULT AND BATTERY SUMMARISED 5.31 1.

In criminal law an ‘assault’, in the broader sense of that term, is either an assault (in the restricted sense) or a battery. (In tort law, it is necessary to maintain a distinction between assault and battery: see Trevitt v NSW TAFE Commission [2001] NSWCA 363.)

2.

Hostile intent is not essential (Boughey v R (1986) 161 CLR 10). Further, while assault and battery may be committed recklessly, where the accused foresaw the possibility of inflicting contact, or inflicting fear of contact, and ignored the risk, on the current state of the authorities, mere inadvertence to the risk is insufficient (MacPherson v Brown (1975) 12 SASR 184; R v Coleman (1990) 19 NSWLR 467). Compare the current

state of the authorities with respect to sexual assault (see 6.7–6.42). 3.

‘Assault’ in the restricted sense is characterised as follows: 3.1. It is any act (not an omission) which directly and intentionally or recklessly causes another person to apprehend immediate and non-consensual (for example, violent or offensive) contact (Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; [1968] 3 All ER 442; Zanker v Vartzokas (1988) 34 A Crim R 11). 3.2. There may be an assault where the fear is of relatively immediate violence of a continuing nature, for example, during an unlawful imprisonment (Zanker v Vartzokas (1988) 34 A Crim R 11). 3.3. Assault can be committed without touching another person (R v Phillips (1971) 45 ALJR 467). 3.4. There can be assault even though the victim is not put in fear (Brady v Schatzel [1911] St R Qd 206), but there is no assault if the intended victim is unaware of the accused’s act. 3.5. It is not assault if the threat raises an apprehension that violence may be inflicted at some future time. General threats are not assaults (R v Knight (1988) 35 A Crim R 314). 3.6. The fact that the threat must be immediate has made it difficult to proceed against people who ‘stalk’ or ‘intimidate’ other people, but see the Crimes Act Pt 15A and the discussion on apprehended violence orders at 5.10–5.20. [page 225]

4.

‘Battery’ is characterised as follows: 4.1. It is a direct and intentional or reckless application of non-consensual contact with another person (Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; [1968] 3 All ER 442). 4.2. It can be a continuous act, so that an unintentional battery can become a crime where an accused intentionally maintains physical force (Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; [1968] 3 All ER 442). 4.3. The Crown must prove that the victim did not consent to the touching, but consent will be no defence to actions that are designed to inflict serious injury for its own sake (R v Brown [1994] 1 AC 212; [1993] 2 All ER 75, extracted at 5.32).

CONSENT Limits of consent 5.32 An essential element of assault and battery is that it is ‘without consent’. The consent of a person being touched will, ordinarily, make the touching lawful. However, there are some acts which remain criminal even though they are committed with the ‘consent’ of the ‘victim’. Identifying any principle that states where the line is to be drawn in such cases is difficult, if not impossible. R v Brown [1994] 1 AC 212; [1993] 2 All ER 75 House of Lords (UK) [The appellants belonged to a group of sado-masochistic homosexuals who, over a 10-year period from 1978, willingly participated in the commission of acts of violence against each

other, including genital torture, for the sexual pleasure which it engendered in the giving and receiving of pain. The passive partner or victim in each case consented to the acts being committed and suffered no permanent injury. The activities took place in private at a number of different locations, including rooms equipped as torture chambers at the homes of three of the appellants. Video cameras were used to record the activities and the resulting tapes were then copied and distributed among members of the group. The tapes were not sold or used other than for the delectation of members of the group. The appellants were tried on charges of assault occasioning actual bodily harm, contrary to s 47 of the Offences against the Person Act 1861, and unlawful wounding, contrary to s 20 of that Act. The Crown’s case was based largely on the contents of the video tapes. Following a ruling by the trial judge that the consent of the victim afforded no defence to the charges, the appellants pleaded guilty and were sentenced to terms of imprisonment. The appellants appealed, contending that a person could not be guilty of assault occasioning actual bodily harm or unlawful wounding in respect of acts carried out in private with the consent of the victim.] Lord Templeman: … In the present case each of the appellants intentionally inflicted violence upon another (to whom I shall refer as “the victim”) with the consent of the [page 226] victim and thereby occasioned actual bodily harm or in some cases wounding or grievous bodily harm. Each appellant was therefore guilty of an offence under s 47 or s 20 of the 1861 Act unless the consent of the victim was effective to prevent the commission of the offence or effective to constitute a defence to the charge. In some circumstances violence is not punishable under the criminal law. When no actual bodily harm is caused, the consent of the person affected precludes him from complaining. There can be no conviction for the summary offence of common assault if the victim has consented to the assault. Even when violence is intentionally inflicted and results in actual bodily harm, wounding or serious bodily harm the accused is entitled to be acquitted if the injury was a foreseeable incident of a lawful activity in which the person injured was participating. Surgery involves intentional

violence resulting in actual or sometimes serious bodily harm but surgery is a lawful activity. Other activities carried on with consent by or on behalf of the injured person have been accepted as lawful notwithstanding that they involve actual bodily harm or may cause serious bodily harm. Ritual circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities. In earlier days some other forms of violence were lawful and when they ceased to be lawful they were tolerated until well into the nineteenth century. Duelling and fighting were at first lawful and then tolerated provided the protagonists were voluntary participants. But, where the result of these activities was the maiming of one of the participants, the defence of consent never availed the aggressor: see 1 Hawkins’ Pleas of the Crown (8th ed, 1824) ch 15. A maim was bodily harm whereby a man was deprived of the use of any member of his body which he needed to use in order to fight but a bodily injury was not a maim merely because it was a disfigurement. The act of maim was unlawful because the King was deprived of the services of an able-bodied citizen for the defence of the realm. Violence which maimed was unlawful despite consent to the activity which produced the maiming. In these days there is no difference between maiming on the one hand and wounding or causing grievous bodily harm on the other hand except with regard to sentence. When duelling became unlawful, juries remained unwilling to convict but the judges insisted that persons guilty of causing death or bodily injury should be convicted despite the consent of the victim. Similarly, in the old days, fighting was lawful provided the protagonists consented because it was thought that fighting inculcated bravery and skill and physical fitness. The brutality of knuckle fighting however caused the courts to declare that such fights were unlawful even if the protagonists consented. Rightly or wrongly the courts accepted that boxing is a lawful activity. … [His Lordship proceeded to review the authorities and continued:] Duelling and fighting are both unlawful and the consent of the protagonists affords no defence to charges of causing actual bodily harm, wounding or grievous bodily harm in the course of an unlawful activity.

The appellants and their victims in the present case were engaged in consensual homosexual activities. The attitude of the public towards homosexual practices changed in the second half of this century. Change in public attitudes led to a change in the law. … [His Lordship then traced legislative changes that decriminalised homosexual behaviour. He continued:] The question whether the defence of consent should be extended to the consequences of sado-masochistic encounters can only be decided by consideration of policy and [page 227] public interest. Parliament can call on the advice of doctors, psychiatrists, criminologists, sociologists and other experts and can also sound and take into account public opinion. But the question must at this stage be decided by this House in its judicial capacity in order to determine whether the convictions of the appellants should be upheld or quashed. Counsel for some of the appellants argued that the defence of consent should be extended to the offence of occasioning actual bodily harm under s 47 of the 1861 Act but should not be available to charges of serious wounding and the infliction of serious bodily harm under s 20. I do not consider that this solution is practicable. Sado-masochistic participants have no way of foretelling the degree of bodily harm which will result from their encounters. The differences between actual bodily harm and serious bodily harm cannot be satisfactorily applied by a jury in order to determine acquittal or conviction. Counsel for the appellants argued that consent should provide a defence to charges under both ss 20 and 47 because, it was said, every person has a right to deal with his body as he pleases. I do not consider that this slogan provides a sufficient guide to the policy decision which must now be made. It is an offence for a person to abuse his own body and mind by taking drugs. Although the law is often broken, the criminal law restrains a practice which is regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to society generally. In any event the appellants in this case did not mutilate their own bodies. They

inflicted bodily harm on willing victims. Suicide is no longer an offence but a person who assists another to commit suicide is guilty of murder or manslaughter. The assertion was made on behalf of the appellants that the sexual appetites of sadists and masochists can only be satisfied by the infliction of bodily harm and that the law should not punish the consensual achievement of sexual satisfaction. There was no evidence to support the assertion that sado-masochist activities are essential to the happiness of the appellants or any other participants but the argument would be acceptable if sadomasochism were only concerned with sex as the appellants contend. In my opinion sado-masochism is not only concerned with sex. Sado-masochism is also concerned with violence. The evidence discloses that the practices of the appellants were unpredictably dangerous and degrading to body and mind and were developed with increasing barbarity and taught to persons whose consents were dubious or worthless. … In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. The violence of sado-masochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty and result in offences under ss 47 and 20 of the 1861 Act. … Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised. I would answer the certified question in the negative and dismiss the appeals of the appellants against conviction. Lord Jauncey of Tullichettle: … It was accepted by all the appellants that a line had to be drawn somewhere between those injuries to which a person could consent to infliction upon himself and those which were so serious that consent was immaterial. They all agreed that assaults occasioning actual bodily harm should be below the line but there was disagreement as to whether all offences against s 20 of the 1861 Act should be above the line or only those resulting in grievous bodily harm. …

[page 228] In my view the line properly falls to be drawn between assault at common law and the offence of assault occasioning actual bodily harm created by s 47 of the 1861 Act, with the result that consent of the victim is no answer to anyone charged with the latter offence or with a contravention of s 20 unless the circumstances fall within one of the well-known exceptions such as organised sporting contests and games, parental chastisement or reasonable surgery. … I would therefore dispose of these appeals on the basis that the infliction of actual or more serious bodily harm is an unlawful activity to which consent is no answer. My Lords I have no doubt that it would not be in the public interest that deliberate infliction of actual bodily harm during the course of homosexual sado-masochistic activities should be held to be lawful. In reaching this conclusion I have regard to the information available in these appeals and of such inferences as may be drawn therefrom. … Two further matters only require to be mentioned. There was argument as to whether consent, where available, was a necessary ingredient of the offence of assault or merely a defence. If it were necessary, which it is not, in this appeal to decide which argument was correct I would hold that consent was a defence to but not a necessary ingredient in assault. … Lord Mustill (dissenting): My Lords, this is a case about the criminal law of violence. In my opinion it should be a case about the criminal law of private sexual relations, if about anything at all. Right or wrong, the point is easily made. The speeches already delivered contain summaries of the conduct giving rise to the charges under the Offences against the Person Act 1861 now before the House, together with other charges in respect of which the appellants have been sentenced, and no longer appeal. Fortunately for the reader my Lords have not gone on to describe other aspects of the appellants’ behaviour of a similar but more extreme kind which was not the subject of any charge on the indictment. It is sufficient to say that whatever the outsider might feel about the subject matter of the prosecutions — perhaps horror, amazement or incomprehension, perhaps sadness — very few

could read even a summary of the other activities without disgust. The House has been spared the video tapes, which must have been horrible. If the criminality of sexual deviation is the true ground of these proceedings, one would have expected that these above all would have been the subject of attack. Yet the picture is quite different. … If repugnance to general public sentiments of morality and propriety were the test, one would have expected proceedings in respect of the most disgusting conduct to be prosecuted with the greater vigour. Yet the opposite is the case. Why is this so? Obviously because the prosecuting authorities could find no statutory prohibition apt to cover this conduct. Whereas the sexual conduct which underlies the present appeals, although less extreme, could at least arguably be brought within ss 20 and 47 of the 1861 Act because it involved the breaking of skin and the infliction of more than trifling hurt. I must confess that this distribution of the charges against the appellants at once sounds a note of warning. It suggests that the involvement of the 1861 Act was adventitious. This impression is reinforced when one considers the title of the statute under which the appellants are charged, “Offences against the Person”. Conduct infringing ss 18, 20 and 47 of the 1861 Act comes before the Crown Court every day. Typically it involves brutality, aggression and violence, of a kind far removed from the appellants’ behaviour which, however worthy of censure, involved no animosity, no aggression, no personal rancour on the part of the person inflicting the hurt towards the recipient and no protest by the recipient. In fact, quite the reverse. Of course we must give effect to the statute if its words capture what the appellants have done, but in deciding whether this is really [page 229] so it is in my opinion legitimate to assume that the choice of the 1861 Act as the basis for the relevant counts in the indictment was made only because no other statute was found which could conceivably be brought to bear upon them. In these circumstances I find it easy to share the opinion expressed by Wills J in R v Clarence (1888) 22 QBD 23 at 33, [1886–90] All ER Rep 133 at 137, a case where the accused had

consensual intercourse with his wife, he knowing and she ignorant that he suffered from gonorrhoea, with the result that she was infected. The case is of general importance, since the Court for Crown Cases Reserved held that there was no offence under ss 47 and 20, since both sections required an assault, of which the wound or grievous bodily harm was the result, and that no assault was disclosed on the facts. For present purposes, however, I need only quote from the report (22 QBD 23 at 30, [1886–90] All ER Rep 133 at 137): … such considerations lead one to pause on the threshold, and inquire whether the enactment under consideration could really have been intended to apply to circumstances so completely removed from those which are usually understood when an assault is spoken of, or to deal with matters of any kind involving the sexual relation or act. I too am led to pause on the threshold. Asking myself the same question, I cannot but give a negative answer. I therefore approach the appeal on the basis that the convictions on charges which seem to me so inapposite cannot be upheld unless the language of the statute or the logic of the decided cases positively so demand. Unfortunately, as the able arguments which we have heard so clearly demonstrate, the language of the statute is opaque, and the cases few and unhelpful. [His Lordship reviewed the authorities and continued:] [T]he existing case law does not sustain a step-by-step analysis of the type proposed above. I thus see no alternative but to adopt a much narrower and more empirical approach, by looking at the situations in which the recipient consents or is deemed to consent to the infliction of violence upon him, to see whether the decided cases teach us how to react to this new challenge. I will take them in turn. 1.

Death

With the exception of a few exotic specimens which have never come before the courts, euthanasia is in practice the only situation where the recipient expressly consents to being killed. As the law stands today, consensual killing is murder. …

2.

Maiming

The act of maiming consisted of “such a hurt of any part of a man’s body, whereby he is rendered less able, in fighting either to defend himself or to annoy his adversary”. … My Lords, I cannot accept that this antique crime any longer marks a watershed for the interrelation of violence and consent. … 3.

Prize-fighting, sparring and boxing

Far removed as it is from the present appeal, I must take a little time over prize-fighting, for it furnishes in R v Coney (1882) 8 QBD 534 one of the very few extended judicial analyses of the relationship between violence and consent … For money, not recreation or personal improvement, each boxer tries to hurt the opponent more than he is hurt himself, and aims to end the contest prematurely by inflicting a brain injury serious enough to make the opponent unconscious, or temporarily by impairing his central nervous system through a blow to the midriff, or cutting his skin to a degree which would ordinarily be well within the scope of s 20 of the 1861 Act. The boxers display skill, strength and courage, but nobody pretends that they do good [page 230] to themselves or others. The onlookers derive entertainment, but none of the physical and moral benefits which have been seen as the fruits of engagement in manly sports. I intend no disrespect to the valuable judgment of McInerney J in Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331 when I say that the heroic efforts of that learned judge to arrive at an intellectually satisfying account of the apparent immunity of professional boxing from criminal process have convinced me that the task is impossible. It is in my judgment best to regard this as another special situation which for the time being stands outside the ordinary law of violence because society chooses to tolerate it. 4.

“Contact” sports

Some sports, such as the various codes of football, have deliberate bodily contact as an essential element. They lie at a mid-point between fighting, where the participant knows that his opponent will try to harm him, and the milder sports where there is at most

an acknowledgement that someone may be accidentally hurt. In the contact sports each player knows and by taking part agrees that an opponent may from time to time inflict upon his body (for example by a rugby tackle) what would otherwise be a painful battery. By taking part he also assumes the risk that the deliberate contact may have unintended effects, conceivably of sufficient severity to amount to grievous bodily harm. But he does not agree that this more serious kind of injury may be inflicted deliberately. … 5.

Surgery

Many of the acts done by surgeons would be very serious crimes if done by anyone else, and yet the surgeons incur no liability. Actual consent, or the substitute for consent deemed by the law to exist where an emergency creates a need for action, is an essential element in this immunity; but it cannot be a direct explanation for it, since much of the bodily invasion involved in surgery lies well above any point at which consent could even arguably be regarded as furnishing a defence. Why is this so? The answer must in my opinion be that proper medical treatment, for which actual or deemed consent is a prerequisite, is in a category of its own. 6.

Lawful correction

It is probably still the position at common law, as distinct from statute, that a parent or someone to whom the parent has delegated authority may inflict physical hurt on his or her child, provided that it does not go too far and is for the purpose of correction and not the gratification of passion or rage. … These cases have nothing to do with consent, and are useful only as another demonstration that specially exempt situations can exist and that they can involve an upper limit of tolerable harm. 7.

Dangerous pastimes; bravado; mortification

For the sake of completeness I should mention that the list of situations in which one person may agree to the infliction of harm, or to the risk of infliction of harm by another includes dangerous pastimes, bravado (as where a boastful man challenges another to try to hurt him with a blow) and religious mortification. These examples have little in common with one another and even less with the present case. They do not appear to be discussed in the

authorities although dangerous pastimes are briefly mentioned and I see no advantage in exploring them here. 8.

Rough horseplay

The law recognises that community life (and particularly male community life), such as exists in the school playground, in the barrack-room and on the factory floor, may involve a mutual risk of deliberate physical contact in which a particular recipient (or even an outsider, as in R v Bruce (1847) 2 Cox CC 262) may come off worst, and that the criminal law cannot be too tender about the susceptibilities of those involved. I think it hopeless to attempt any explanation in terms of consent. … [page 231] 9.

Prostitution

Prostitution may well be the commonest occasion for the voluntary acceptance of the certainty, as distinct from the risk, of bodily harm. It is very different from the present case. There is no pretence of mutual affection. The prostitute, as beater or beaten, does it for money. The dearth of reported decisions on the application of the 1861 Act clearly shows how the prosecuting authorities have (rightly in my view) tended to deal with such cases, if at all, as offences against public order. Only in R v Donovan [1934] 2 KB 498, [1934] All ER Rep 207 amongst the English cases, has the criminality of sexual beating been explored. The facts were as follows. The accused met the complainant and immediately asked her: “Where would you like to have your spanking, in Hyde Park or in my garage?” Previous telephone conversations had made it clear that he wanted to beat her for sexual gratification. She went with him to his garage, where he caned her in a manner which left seven or eight marks indicative, as a medical witness said, of “a fairly severe beating”. He was charged with indecent assault and common assault. The defence was that the girl consented and that it was for the prosecution to prove that she did not. The chairman of quarter sessions directed the jury that the vital issue was “consent or no consent”, apparently without giving any guidance on burden of proof. After retiring for an hour the jury asked a question about reasonable belief and

consent, which again the chairman answered without reference to burden of proof. The Court of Criminal Appeal (Lord Hewart CJ, Swift and du Parcq JJ) quashed the conviction. The judgment fell into two entirely distinct parts. The first was concerned with the direction on consent and proceeded on the footing that consent was material to guilt and that the burden was on the Crown to disprove it. This part of the judgment concluded ([1934] 2 KB 498 at 506, [1934] All ER Rep 207 at 210): It is, in our view, at least possible that [a correct direction] would have resulted in the acquittal of the appellant, and we are, therefore, compelled to come to the conclusion … that the trial was not satisfactory. On the face of it this conclusion was fatal to the conviction, but the court went on to consider an argument for the Crown that this was not so, because on the facts the striking of the girl was not an act for which consent afforded a defence; so that the absence of a proper direction upon it made no difference. On this question the court held that it was for the jury to decide whether the situation was such that the consent of the girl was immaterial, and that since the issue had never been left to the jury and the trial had proceeded on the footing that consent was the key to the case, the appeal ought to be decided on the same basis. Accordingly, the direction on consent being unsatisfactory the conviction must be quashed. How did the court arrive at the opinion that there was an issue for the jury which ought to have been tried? As I understand it, the course of reasoning was as follows. (1) On the basis of a statement of Cave J in R v Coney (1882) 8 QBD 534 at 539 and the old authorities on which it was founded the court was of the opinion: If an act is unlawful in the sense of being in itself a criminal act, it is plain that it cannot be rendered lawful because the person to whose detriment it is done consents to it. No person can license another to commit a crime. So far as the criminal law is concerned, therefore, where the act charged is in itself unlawful, it

can never be necessary to prove absence of consent on the part of the person wronged in order to obtain the conviction of the wrongdoer. (See [1934] 2 KB 498 at 507, [1934] All ER Rep 207 at 210.) (2) ‘There are, however, many acts in themselves harmless and lawful which become unlawful only if they are done without the consent of the person affected’ (see [1934] [page 232] 2 KB 498 at 507, [1934] All ER Rep 207 at 210). (3) ‘As a general rule, although it is a rule to which there are well established exceptions, it is an unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a probable consequence, and when such an act is proved, consent is immaterial’ (see [1934] 2 KB 498 at 507, [1934] All ER Rep 207 at 210). (4) The former distinction between maim and other types of injury was out of date. Beating with the intent of doing some bodily harm is malum in se to which consent is not a defence. (5) There are exceptions to this general rule, such as sparring, sport or horseplay. (6) But what happened in the instant case did not fall within any of the established exceptions. (7) For the purpose of the general rule bodily injury meant any hurt or injury calculated to interfere with the health or comfort of the prosecutor; it need not be permanent, but must be more than merely transient or trifling. (8) It was for the jury to decide whether the appellant had inflicted or intended to inflict bodily injury in this sense. My Lords, the first two of these propositions have more than once been criticised as tautologous. I do not accept this, but will not stay to discuss the point for it seems to me that they are right, as the instances of prize-fighting and duelling make plain, and as all the counsel appearing in the present appeal have agreed. The law simply treats some acts as criminal per se irrespective of consent. It is with the next stages in the reasoning that I part company. Donovan was charged only with indecent assault, and the latter is an offence to which, it is common ground, consent is a defence. Yet the Court of Criminal Appeal proceeded on the basis that the critical level of violence was that of actual bodily harm, and that the jury should have been directed to decide whether he was guilty of facts establishing an offence under s 47 of the 1861 Act: an

offence with which he had not been charged. There is something amiss here. What is amiss is that the dictum of Cave J in R v Coney and the old cases said to support it are taken out of their context, which was in each instance the kind of battery regarded for reasons of public policy as being in a special category which is automatically criminal. Plainly the court in R v Donovan did not put the beating of the complainant into that category, or the appeal would have taken a quite different course. All that the court had to say about the nature of the beating was that it was not, as the present appellants would have us say, in a category which is automatically innocent. 10. Fighting I doubt whether it is possible to give a complete list of the situations where it is conceivable that one person will consent to the infliction of physical hurt by another, but apart from those already mentioned only one seems worth considering, namely what one may call ‘ordinary’ fighting … Perhaps it is unduly complicated to suggest that the public interest might annul the defence of consent in certain situations and then in the shape of ‘good reason’ recreate it. Nevertheless I am very willing to recognise that the public interest may sometimes operate in one direction and sometimes in the other. But even if it be correct that fighting in private to settle a quarrel is so much against the public interest as to make it automatically criminal even if the fighter is charged only with assault (a proposition which I would wish to examine more closely should the occasion arise), I cannot accept that the infliction of bodily harm, and especially the private infliction of it, is invariably criminal absent some special factor which decrees otherwise. I prefer to address each individual category of consensual violence in the light of the situation as a whole. Sometimes the element of consent will make no difference and sometimes it will make all the difference. Circumstances must alter cases. For these reasons I consider that the House is free, as the Court of Appeal in the present case was not (being bound by AG’s Reference (No 6 of 1980)), to consider entirely afresh whether the public interest demands the interpretation of the 1861 Act in such a way as to render criminal under s 47 the acts done by the appellants. … [page 233]

A question has arisen, not previously canvassed, whether the appellants are necessarily guilty because their acts were criminal apart from the Offences against the Person Act 1861, and that accordingly a defence of consent which might otherwise have been available as an answer to a charge under s 47 is to be ruled out. This proposition if correct will have some strange practical consequences. First of all, it means that solely because the appellants were guilty of offences under the Sexual Offences Act 1967, with which they had not been charged and of which they could not (because of the time limit) be convicted they can properly be convicted of crimes of violence under a different statute carrying a much larger maximum penalty. The logic of this argument demands that if the prosecution can show that a sexual harming constitutes some other offence, however trifling and however different in character, the prosecution will be able to establish an offence of common assault or an offence under the 1861 Act, even if in its absence the defendant would not be guilty of any offence at all. Surely this cannot be right. Moreover, if one returns to offences of the present kind further practical anomalies may be foreseen. Not all grossly indecent acts between males are indictable under the Sexual Offences Act 1956. Thus, if the criminality of conduct such as the present under the Offences against the Person Act 1861 is to depend on whether the conduct is criminal on other grounds, one would find that the penal status of the acts for the purposes of s 47 would depend upon whether they were done by two adult males or three adult males. I can understand why, in relation to a homosexual conduct, Parliament has not yet thought fit to disturb the compromise embodied in the Sexual Offences Act 1967, but am quite unable to see any reason to carry a similar distinction into the interpretation of a statute passed a century earlier, and aimed at quite different evil. Since the point was not raised before the trial judge, and the House has properly not been burdened with all the committal papers, it is impossible to tell whether, if advanced, it might have affected the pleas offered and accepted at the Central Criminal Court, but its potential for creating anomalies in other cases seems undeniable. I would therefore accede to this argument only if the decided cases so demand. In my opinion they do not, for I can find nothing

in them to suggest that the consensual infliction of hurt is transmuted into an offence of violence simply because it is chargeable as another offence. Even in the prize-fighting cases, which come closest to this idea, the tendency of these events to attract a disorderly crowd was relevant not because the fighters might have been charged, if anyone had cared to do so, with the separate offence of causing a breach of the peace, but rather because this factor was a reason why the events were placed as a matter of policy in a category which the law treated as being in itself intrinsically unlawful notwithstanding the presence of consent. I am satisfied that it was in this sense that the courts made reference to the unlawfulness of the conduct under examination, and not to its criminality aliunde. … [His Lordship found no answer in the European Convention on Human Rights. As to public policy:] … The purpose of this long discussion has been to suggest that the decks are clear for the House to tackle completely anew the question whether the public interest requires s 47 of the 1861 Act to be interpreted as penalising an infliction of harm which is at the level of actual bodily harm, but not grievous bodily harm; which is inflicted in private (by which I mean that it is exposed to the view only of those who have chosen to view it); which takes place not only with the consent of the recipient but with his willing and glad co-operation; which is inflicted for the gratification of sexual desire, and not in a spirit of animosity or rage; and which is not engaged in for profit. [page 234] My Lords, I have stated the issue in these terms to stress two considerations of cardinal importance. Lawyers will need no reminding of the first, but since this prosecution has been widely noticed it must be emphasised that the issue before the House is not whether the appellants’ conduct is morally right, but whether it is properly charged under the 1861 Act. When proposing that the conduct is not rightly so charged I do not invite your Lordships’ House to indorse it as morally acceptable. Nor do I pronounce in

favour of a libertarian doctrine specifically related to sexual matters. Nor in the least do I suggest that ethical pronouncements are meaningless, that there is no difference between right and wrong, that sadism is praiseworthy, or that new opinions on sexual morality are necessarily superior to the old, or anything else of the same kind. What I do say is that these are questions of private morality; that the standards by which they fall to be judged are not those of the criminal law; and that if these standards are to be upheld the individual must enforce them upon himself according to his own moral standards, or have them enforced against him by moral pressures exerted by whatever religious or other community to whose ethical ideals he responds. The point from which I invite your Lordships to depart is simply this, that the state should interfere with the rights of an individual to live his or her life as he or she may choose no more than is necessary to ensure a proper balance between the special interests of the individual and the general interests of the individuals who together comprise the populace at large. Thus, whilst acknowledging that very many people, if asked whether the appellants’ conduct was wrong, would reply “Yes, repulsively wrong”, I would at the same time assert that this does not in itself mean that the prosecution of the appellants under ss 20 and 47 of the Offences against the Person Act 1861 is well founded. This point leads directly to the second. As I have ventured to formulate the crucial question, it asks whether there is good reason to impress upon s 47 an interpretation which penalises the relevant level of harm irrespective of consent: ie to recognise sadomasochistic activities as falling into a special category of acts, such as duelling and prize-fighting, which “the law says shall not be done”. This is very important, for if the question were differently stated it might well yield a different answer. In particular, if it were to be held that as a matter of law all infliction of bodily harm above the level of common assault is incapable of being legitimated by consent, except in special circumstances, then we would have to consider whether the public interest required the recognition of private sexual activities as being in a specially exempt category. This would be an altogether more difficult question and one which I would not be prepared to answer in favour of the appellants, not because I do not have my own opinions upon it but because I regard the task as one which the courts are not suited to perform,

and which should be carried out, if at all, by Parliament after a thorough review of all the medical, social, moral and political issues, such as was performed by the Wolfenden Committee (see the Report of the Committee on Homosexual Offences and Prostitution (Cmnd 247 (1957)). Thus, if I had begun from the same point of departure as my noble and learned friend Lord Jauncey of Tullichettle I would have arrived at a similar conclusion; but differing from him on the present state of the law, I venture to differ. Let it be assumed however that we should embark upon this question. I ask myself, not whether as a result of the decision in this appeal, activities such as those of the appellants should cease to be criminal, but rather whether the 1861 Act (a statute which I venture to repeat once again was clearly intended to penalise conduct of a quite different nature) should in this new situation be interpreted so as to make it criminal. Why should this step be taken? Leaving aside repugnance and moral objection, both of which are entirely natural but neither of which are in my opinion grounds upon which the court could properly create a new crime, I can visualise only the following reasons. [page 235] (1) Some of the practices obviously created a risk of genitourinary infection, and others of septicaemia. These might indeed have been grave in former times, but the risk of serious harm must surely have been greatly reduced by modern medical science. (2) The possibility that matters might get out of hand, with grave results. It has been acknowledged throughout the present proceedings that the appellants’ activities were performed as a prearranged ritual, which at the same time enhanced their excitement and minimised the risk that the infliction of injury would go too far. Of course things might go wrong and really serious injury or death might ensue. If this happened, those responsible would be punished according to the ordinary law, in the same way as those who kill or injure in the course of more ordinary sexual activities are regularly punished. But to penalise the appellants’ conduct even if the extreme consequences do not ensue, just because they might have done so, would require an assessment of the degree of risk, and the balancing of this risk

against the interests of individual freedom. Such a balancing is in my opinion for Parliament, not the courts; and even if your Lordships’ House were to embark upon it the attempt must in my opinion fail at the outset for there is no evidence at all of the seriousness of the hazards to which sado-masochistic conduct of this kind gives rise. This is not surprising, since the impressive argument of Mr Purnell QC for the Crown did not seek to persuade your Lordships to bring the matter within the 1861 Act on the ground of special risks, but rather to establish that the appellants are liable under the general law because the level of harm exceeded the critical level marking off criminal from non-criminal consensual violence which he invited your Lordships to indorse. (3) I would give the same answer to the suggestion that these activities involved a risk of accelerating the spread of auto-immune [sic] deficiency syndrome (AIDS), and that they should be brought within the 1861 Act in the interests of public health. The consequence would be strange, since what is currently the principal cause for the transmission of this scourge, namely consenting buggery between males, is now legal. Nevertheless, I would have been compelled to give this proposition the most anxious consideration if there had been any evidence to support it. But there is none, since the case for the Crown was advanced on an entirely different ground. (4) There remains an argument to which I have given much greater weight. As the evidence in the present case has shown, there is a risk that strangers (and especially young strangers) may be drawn into these activities at an early age and will then become established in them for life. This is indeed a disturbing prospect but I have come to the conclusion that it is not a sufficient ground for declaring these activities to be criminal under the 1861 Act. The element of the corruption of youth is already catered for by the existing legislation; and if there is a gap in it which needs to be filled the remedy surely lies in the hands of Parliament, not in the application of a statute which is aimed at other forms of wrongdoing. As regards proselytisation for adult sado-masochism the argument appears to me circular. For if the activity is not itself so much against the public interest that it ought to be declared criminal under the 1861 Act then the risk that others will be induced to join in cannot be a ground for making it criminal.

Leaving aside the logic of this answer, which seems to me impregnable, plain humanity demands that a court addressing the criminality of conduct such as that of the present should recognise and respond to the profound dismay which all members of the community share about the apparent increase of cruel and senseless crimes against the defenceless. Whilst doing so I must repeat for the last time that in the answer which I propose I do not advocate the decriminalisation of conduct which has hitherto been a crime; nor do I rebut a submission that a new crime should be created, penalising this conduct, for Mr Purnell has rightly not invited the House to take this course. The only question is whether these consensual private acts are offences against the existing law of violence. To this question I return a negative response … [page 236] Accordingly I would allow these appeals and quash such of the convictions as are now before the House. [Lord Slynn of Hadley also dissented. Lord Lowry agreed with Lords Templeman and Jauncey. Appeals dismissed.]

5.33 Three of the appellants in Brown appealed to the European Court of Human Rights (see Laskey, Jaggard and Brown v United Kingdom (1997) 24 EHRR 39) on the basis that their prosecution was contrary to the European Convention on Human Rights. The court rejected the appeals on the basis that the state was entitled to limit the infliction of harm and that the state’s intervention was permissible as being intervention ‘necessary in a democratic society’ (European Convention on Human Rights, art 8(2)). 5.34 In R v Wilson [1996] 2 Cr App R 241 (discussed in the judgment of Wright J in Emmet, see 5.35) consent was a defence where the ‘appellant, at the request and with the consent of his wife, used a hot knife to brand his initials A W on each of his wife’s buttocks’. The Court of Appeal held (at 243 per Russell LJ) that ‘… Brown is not authority for the proposition that consent is no defence … in all circumstances where actual bodily harm is deliberately inflicted …’. The court also observed (at 244) that in its view: ‘Consensual

activity between husband and wife, in the privacy of the matrimonial home, is not a proper matter for criminal investigation or prosecution’. The result was influenced by the fact that, by the time the case came to trial, there was no evidence of any permanent injury (see at 242). 5.35 In R v Emmet [1999] EWCA Crim 1710 (18 June 1999), on the other hand, consent was held to be no defence to two charges of assault occasioning actual bodily harm. Each allegation involved consensual heterosexual activity between parties who, by the time of trial, had married. The first count related to an incident where the appellant, with his partner’s consent, covered her head with a plastic bag which was tied at the neck, and she was tied up. With her in this position he engaged in sexual activity with her. He became aware that she was in distress and he rapidly removed the bag from her head. She suffered from increasingly bloodshot eyes and saw a doctor who ‘found that there [were] subconjunctival haemorrhages in both eyes and some petechial bruising around her neck. The first symptom was caused by the restriction of oxygen to the brain and the second by the restriction on the return blood flow in her neck. No treatment was prescribed and after about a week her eyes returned to normal’ (at 9). The restriction of oxygen could, however, have caused brain damage or death. The second incident arose out of events a few weeks later when the appellant poured lighter fluid on his partner’s breasts and set it alight. She suffered a burn and again sought medical care. The burn ultimately healed but it was the doctor who reported the matter to authorities. 5.36 In R v Lee [2006] NZCA 60 the Court of Appeal in New Zealand considered the limits of consent in the context of a ritualistic religious exorcism which involved the infliction of grievous bodily harm to which the victim consented. The ‘exorcism’ resulted in the death of the victim.

The judgment provides a useful summary of the scope of the defence in the UK, Canada, Australia and New Zealand. [page 237] The New Zealand court declined to apply Brown and specifically endorsed the dissenting view in that case of Lord Mustill: [300] In our view, the rule (for all levels of intentional infliction of harm) is rather that there is an ability to consent to the intentional infliction of harm short of death unless there are good public policy reasons to forbid it and those policy reasons outweigh the social utility of the activity and the value placed by our legal system on personal autonomy. A high value should be placed on personal autonomy. … The test therefore is the one promulgated by Lord Mustill in Brown, whatever the level of injury intended and caused. As indicated above, such an approach would fit in with the manner in which the law has developed in New Zealand … where the tendency has been not to countenance too many limits on the availability of consent as a defence.

5.37 As to the limits of consent to sexual activity which results in the infliction of a grievous bodily disease and the application of Lee in this context in Australia, see 5.41. 5.38 What we can say from the authorities is that there is a scale of activity. At one end consent is never a defence, and clearly activity resulting in death is in that category. One cannot consent to one’s own death, so a deliberate killing is murder even if the victim wants to die. Somewhere along that scale is a dividing line where cases on one side of the line are rendered lawful because of the ‘victim’s’ consent but cases on the other side remain unlawful regardless of consent.

5.39 The decisions in Brown, Wilson, Emmet and Lee, discussed above, show that where that line is drawn is unclear. It may be, as the Court of Appeal stated in Wilson (see 5.34), that ‘[c]onsensual activity between husband and wife, in the privacy of the matrimonial home, is not a proper matter for criminal investigation or prosecution’, but equally, consensual activity between homosexual men, in the privacy of their home, should also not be considered a proper matter for criminal investigation or prosecution. As Lord Mustill in Brown shows, wherever there is an attempt to define the boundary necessary exceptions must be drawn to allow activity that is beyond doubt legal, such as boxing, contact sports, rough horseplay etc. To that list may also be added such things as body piercing and tattooing which would be, beyond doubt, a grievous bodily harm if done without consent.

Sexually transmitted diseases and consent 5.40 A person may have consented to sexual intercourse, but not to the sexually transmitted disease which follows. But, in R v Clarence (1888) 22 QBD 23, the Court for Crown Cases Reserved held that a man who had intercourse with his wife knowing that he had gonorrhoea did not commit a criminal offence. In New South Wales it [page 238] is now considered grievous bodily harm to infect another with a grievous bodily disease (Crimes Act s 4). That makes it an offence to intentionally or recklessly infect another person with a disease (Crimes Act ss 33 and 35).

5.41 In Neal v R (2011) 32 VR 454; 213 A Crim R 190; [2011] VSCA 172 the Victorian Court of Appeal considered the defence of consent in the context of the reckless infliction of a grievous bodily disease (HIV-AIDS). In the judgment the application of Lee (see 5.37) to these types of offences was considered: [73] … Although it has been accepted in New Zealand that informed consent may constitute a defence to an offence of intentionally inflicting injury, as well as to an offence of recklessly inflicting injury, that is not the law in England and, in our view, it is not the law in this State. We consider that the distinction between indifference to the risk of probable infection and intent that it should occur has a justifiable moral basis. As Lord Templeman said in Brown, in principle there is a difference between violence which is merely incidental to an activity and violence “which is inflicted for the indulgence of cruelty”. As Judge LJ said in R v Dica, there is a similar distinction between the spreading of sexual disease which is merely incidental to consensual sexual intercourse and the intentional spreading of sexual disease through sexual intercourse. To adopt and adapt his Lordship’s words, where the spread of sexual disease is merely incidental to sexual intercourse, the participants are not indulging in serious violence for the purposes of sexual gratification. They are simply prepared, knowingly, to run the risk — not the certainty — of infection, as well as all the other risks inherent in and possible consequences of sexual intercourse. Contrastingly, where sexual intercourse is engaged in with intent to spread sexual disease it is, as a matter of public policy, just as unlawful as consensual violent conduct causing serious physical injury.

5.42 Section 4(1)(c) of the Crimes Act (see 5.28) provides that the definition of ‘grievous bodily harm’ includes to cause another person to contract a grievous bodily disease. Section 33 provides for the offence of [causing] grievous bodily harm with intent. This must be contrasted with s 35 which provides for the offence of [causing] grievous bodily harm by

recklessness. In Zaburoni v R [2016] HCA 12 the High Court considered intention as opposed to recklessness in the context of a man who infected his female partner with HIV. 5.43 It should be noted that the appeal concerned the relevant Queensland provisions, being ss 317 and 320 of the Criminal Code (Qld). Although not identical to the relevant NSW sections in that s 317 of the Queensland Code uses the term ‘unlawfully’ rather than ‘recklessly’, unlawfully may be considered the equivalent of ‘reckless’ in this context and therefore the decision is relevant to the NSW provisions. Zaburoni v R [2016] HCA 12 High Court of Australia [The appellant was convicted by a jury of intentionally causing grievous bodily harm to another person pursuant to s 320 of the Criminal Code (Qld). Under this code the term ‘grievous bodily harm’ includes a grievous bodily disease. The accused had pleaded [page 239] guilty to the alternative charge of unlawfully causing grievous bodily harm to another person, but this plea was not accepted by the Crown in discharge of the indictment.] 1. Kiefel, Bell and Keane JJ: [footnotes omitted] The appellant was convicted of unlawfully transmitting a serious disease to another with intent to do so following a trial in the District Court of Queensland before Dick DCJ and a jury. The offence is created by s 317(b) of the Criminal Code (Q) (“the Code”) and carries a maximum penalty of imprisonment for life. The disease that the appellant transmitted to the complainant is the human immunodeficiency virus (“HIV”). It is a serious disease for the purposes of s 317(b). 2. To transmit HIV to another person is to occasion grievous bodily harm to that person. Section 320 of the Code makes it an offence to unlawfully do grievous bodily harm to another and provides a maximum penalty of imprisonment for 14 years for the offence. It is not in issue that a person who knows that he or she has HIV, and who engages in unprotected sexual intercourse without informing

the other person of that fact, commits an offence contrary to s 320 in the event that the other person contracts HIV from that sexual contact. In such a case the prosecution is not required to prove that the accused intended to transmit the disease to his or her sexual partner. 3. The indictment presented at the appellant’s trial charged him in the alternative with unlawfully doing grievous bodily harm to the complainant pursuant to s 320. The appellant pleaded guilty to this count. The prosecution did not accept the plea in discharge of the indictment and the trial proceeded. The appellant did not give evidence. He made a number of admissions that were consistent with his plea to the alternative count. The sole issue for the jury’s determination was proof of the appellant’s intention. No complaint is made as to the adequacy of the trial judge’s directions on this or any other aspect of criminal liability. The jury returned a verdict of guilty of the principal count, which made it unnecessary to take a verdict on the alternative count. On 18 April 2013, Dick DCJ sentenced the appellant to a term of nine and a half years’ imprisonment. 4. The appellant appealed against his conviction to the Court of Appeal of the Supreme Court of Queensland (Gotterson and Morrison JJA and Applegarth J), contending, among other grounds, that the verdict was unreasonable or contrary to the evidence. The majority (Gotterson and Morrison JJA) found that it had been open to the jury to be satisfied beyond reasonable doubt that the appellant intended to transmit HIV to the complainant, in circumstances in which he had engaged in frequent acts of unprotected sexual intercourse with her knowing that he was HIV positive. Gotterson JA, writing the leading majority reasons, observed that this conduct “defied description as mere recklessness as to the risk of transmission”. … 6. As will appear, Applegarth J considered that if the evidence established the appellant’s awareness of the probability that his conduct would result in the complainant contracting HIV, the jury’s verdict would be unassailable. His Honour dissented in the result because he did not consider the evidence established so much. Nonetheless, his Honour’s analysis requires consideration of

proof of intention to produce a particular result where it is made an element of liability under the Code. 7. The parties are at one in submitting that liability in such a case requires proof of actual intent. The decision of the Court of Criminal Appeal of Queensland in R v Willmot (No 2) is cited by each for that proposition. 8. In Willmot, Connolly J explained: “The ordinary and natural meaning of the word ‘intends’ is to mean, to have in mind. Relevant definitions in The Shorter Oxford English Dictionary show that what is involved is the directing of the mind, having a purpose or design.” [page 240] 9. His Honour’s statement was affirmed by the Court of Appeal in R v Reid. Despite the holding that intention requires “directing of the mind, having a purpose or design”, Applegarth J’s analysis finds support elsewhere in Connolly J’s reasons in Willmot and in McPherson JA’s reasons in Reid. 10. In Willmot, Connolly J went on to say that if there was direct evidence of the accused’s awareness of death or grievous bodily harm as the probable result of his act, the jury might properly be directed that, if they accepted that evidence, it was open to infer from it that the accused intended to kill or to do grievous bodily harm as the case may be. There is an evident tension between this statement and his Honour’s earlier embrace of the ordinary meaning of “intent”. To engage in conduct knowing that it will probably produce a particular harm is reckless. It is evidence which, taken with other evidence, may support a conclusion that the person intended to produce that harm. Nonetheless, foresight of risk of harm is distinct in law from the intention to produce that harm. 11. In Reid, the accused’s conviction for a s 317(b) offence was upheld in circumstances in which the inference of intent was based on evidence that the accused entertained malice towards the complainant. The Court of Appeal was divided on the capacity of evidence of awareness of risk to prove intent. Chesterman J said that “the Code requires nothing less than proof of intention”,

rejecting that awareness of the probability that an act will produce a particular result, without more, supports the inference of intent to produce that harm. His Honour explained the content of intent by reference to his earlier analysis in R v Ping that “[t]he prosecution must prove an actual, subjective, intention on the part of the accused to bring about [the particular result] by his conduct.” 12. McPherson JA agreed with Chesterman J that the meaning to be ascribed to intent in s 317(b) is that “the accused must be proved to have meant to transmit the disease: his actions must have been designed to bring about that result.” However, McPherson JA considered that satisfaction that the accused knew that by having unprotected sex with the complainant, it was probable or likely that the disease would be passed on to him, would establish that intent. His Honour relied on this Court’s reasons in R v Crabbe for this conclusion. It is to be observed that the analysis in Crabbe was of the mental element of the crime of murder under the common law. 13. Keane JA (as his Honour then was) disavowed that common law concepts of foreseeability, likelihood and probability were relevant to proof of the element of intention for the offence created by s 317(b). That statement should be accepted. 14. Where proof of the intention to produce a particular result is made an element of liability for an offence under the Code, the prosecution is required to establish that the accused meant to produce that result by his or her conduct. As the respondent correctly submits, knowledge or foresight of result, whether possible, probable or certain, is not a substitute in law for proof of a specific intent under the Code. In the last-mentioned respect, the Code is distinguished from its Commonwealth counterpart, which allows that a person has intention with respect to a result if the person is aware that the result will occur in the ordinary course of events. 15. Where the accused is aware that, save for some supervening event, his or her conduct will certainly produce a particular result, the inference that the accused intended, by engaging in that conduct, to produce that particular result is compelling. Nonetheless, foresight that conduct will produce a particular result as a “virtual certainty” is of evidential significance and under the

Code it remains that the trier of fact must be satisfied that the accused meant to produce the particular result. 16. It is necessary to say something in this context about the concepts of purpose, desire and motive. Discussions of proof of intention sometimes equate desire with motive. [page 241] The respondent’s submissions treat motive and purpose as synonyms. This is in aid of the submission that motive is irrelevant to criminal responsibility under the Code. 17. In ordinary parlance, purpose, desire and motive may be used interchangeably. However, in law motive describes the reason that prompts the formation of the accused’s intention. The accused may fire a pistol at his business partner. His intention or purpose in pulling the trigger may be to kill. His motive for forming that intention may be to avoid repaying a debt he owes to his partner. Where liability for an offence requires proof of the intention to produce a particular result, the prosecution must establish that the accused had that result as his or her purpose or object at the time of engaging in the conduct. Purpose here is not to be equated with motive. 18. In Willmot, Connolly J observed that the notion of desire is not involved in proof of intention. It is true that in law a person may intend to produce a particular result without desiring that result. Nonetheless, as Professor Williams has observed, intention generally does involve desire. Illustrations of the distinction between desire and intention commonly raise a false issue. Thus, Professor Gillies illustrates the proposition that intention in the criminal law does not connote desire by the example of the accused who sets fire to his enemy’s house so as to spite the enemy even though he regrets the destruction of the house because it is a masterpiece of period architecture. Accepting the accused’s refined sense of regret, it hardly seems apt to say that in setting fire to the house he did not desire to destroy it. A direction that a person may do something, fully intending to do it although the person does not desire to do it, may often be confusing. Unless the facts truly raise the issue the direction should not be given. 19. Proof of the s 317(b) offence required the prosecution to

establish beyond reasonable doubt that, at the time the appellant engaged in unprotected sexual intercourse with the complainant, he had as a purpose the transmission of HIV to her. A person may engage in conduct having more than one object or purpose. The complainant said the appellant preferred unprotected sexual intercourse because it was more pleasurable. Accepting that the appellant engaged in unprotected sexual intercourse because it gave him pleasure is not necessarily inconsistent with proof that he also had the intention thereby of transmitting HIV to the complainant. It is the identification of evidence from which the latter inference could be drawn to the criminal standard that is the issue in this appeal. Its resolution requires reference to the evidence given at trial in some detail. … 39. The appellant contends that the Court of Appeal conflated recklessness with proof of intent. A discrete challenge is made to the conclusion that it was open to the jury to infer from the protracted duration of the conduct that the requisite intention existed from the first act of unprotected sexual intercourse to the last. Gotterson JA referred to Reid for the latter proposition. The appellant submits that no question of temporal concurrence between the act and the intent arose in Reid because, in that case, intent was an inference from circumstances that did not depend upon frequency of unprotected sexual intercourse. By contrast, the appellant submits that Gotterson JA’s reasoning depended upon the frequency of the appellant’s conduct, which “necessarily involved the notion of a passage of time before the requisite intent arose”. 40. It is the soundness of the conclusion that the frequency of unprotected sexual relations over many months suffices to establish that the appellant’s intent was to transmit HIV to the complainant that is determinative of the appeal. If it is open to infer from that conduct that the appellant had that intention, then it is not illogical to infer that it was present throughout the sexual relationship in circumstances in which there is nothing to suggest that there was any relevant change in the nature of the relationship. [page 242] Awareness of risk

41. It is not apparent what, if any, relevance expert evidence of the statistical risk of the transmission of HIV had to proof of the appellant’s intention. To the extent that the inference of intent depends upon foresight of the risk of the sexual transmission of HIV, it is the appellant’s understanding, whether informed or otherwise, that is material. There was ample evidence from which to find that the appellant was aware of the risk of transmitting HIV to the complainant through unprotected sexual intercourse. Apart from the medical advice that the appellant was given by several doctors in 1998 after he learned of his HIV positive status, his lies to the complainant about that status before their sexual relationship commenced, and during the course of it, point to his awareness of the risk of sexual transmission. So, too, do his lies to the police about the number of times they engaged in unprotected sexual intercourse. The inference from the frequency of the conduct 42. Gotterson JA did not in terms express himself as satisfied that the evidence was capable of proving that the appellant intended to transmit HIV to the complainant. Instead, his Honour said that the frequency of unprotected sexual intercourse over many months defied description as mere recklessness. Recklessness describes a state of mind in which a person adverts to the risk that particular conduct may result in particular harm and, with that awareness, engages in that conduct. A person may be more or less reckless depending upon the person’s awareness of the likelihood of the risk materialising. However, as earlier explained, putting to one side awareness of the virtual certainty that conduct will result in the particular harm, a person’s awareness of the risk that his or her conduct may result in harm does not, without more, support the inference that the person intended to produce that harm. 43. The respondent submits that Gotterson JA’s conclusion that the inference of intent was open was not confined to the appellant’s awareness of the risk of transmission: it took account of the frequency of unprotected sexual intercourse over many months. The respondent submits that the features of knowledge, frequency and the length of the period over which intercourse took place suffice to support the conclusion of intent. This is because “[i]t is a fact of human dynamics and experience that the more often something is done which is dangerous to human health,

particularly of another, the more readily it can be inferred that the potential outcome is intended”. Acceptance of this submission cannot sit with the respondent’s recognition that foresight of likelihood of outcome cannot be substituted for proof of an accused’s intention to cause that outcome. 44. A rational inference open on the evidence is that the appellant engaged in regular unprotected sexual intercourse with the complainant because it enhanced his sexual pleasure and he was reckless of the risk of transmitting HIV to her. The existence of that inference lessens the force of reasoning to a conclusion that the appellant intended to transmit the disease from the fact of frequent unprotected sexual intercourse. Apart from frequent unprotected sexual intercourse, there is no evidence to support the inference that the appellant had that intention. And the evidence fell well short of proving that the appellant believed that it was virtually certain that he would pass on HIV by regular unprotected sexual intercourse. … 49. Applegarth J was correct to hold that the evidence was not capable of establishing to the criminal standard that the appellant intended to transmit HIV to the complainant. It follows that the appellant’s conviction for the s 317(b) offence must be quashed. Gageler J: 57. In this Court, as in the Court of Appeal, the prosecution relied on two principal features of the appellant’s conduct proved at trial in order to justify drawing the [page 243] requisite inference of intention. One was a series of lies which the appellant told to the complainant, and later to police, when he said that he did not have the disease or was not aware or only recently became aware that he had the disease. The other was the frequency of unprotected sexual intercourse and the protracted period over which that intercourse occurred. 58. No member of the Court of Appeal took the view that the appellant’s lies alone were sufficient to justify drawing the inference of intention. That must be so. The lies which the appellant told the complainant during their relationship amounted,

as Applegarth J put it, to a form of “callous deception”. They demonstrated an intention to deceive the complainant into having unprotected sexual intercourse. They did not necessarily demonstrate an intention to transmit the disease to her. The lies which the appellant later told the complainant and the police when he said that he had not been aware or had only recently become aware that he had the disease, demonstrated consciousness of wrongdoing, but not necessarily consciousness of guilt of a crime of specific intent. 59. The difference between the members of the Court of Appeal concerned what was able to be inferred, beyond reasonable doubt, about the appellant’s state of mind from the frequency and protracted period of the sexual intercourse which the appellant had with the complainant in the context in which the appellant had been shown to have known that he had the disease and to have known that the disease was transmissible by sexual intercourse, but in which the appellant had not been shown to have known the degree of risk of transmission and had not been shown to have had any reason to harbour ill-will against the complainant. 60. The crux of the reasoning of Gotterson JA, and of that of Morrison JA, was contained in the following passage in the reasons for judgment of Gotterson JA: “The jury’s attention necessarily turned to the appellant’s conduct considered in the context of that knowledge. To my mind, what is of singular significance here is that the unprotected sexual intercourse continued over many months. It was the norm for them. It was open to the jury to reason from this and their own knowledge and experience of human behaviour that whereas one or several acts of unprotected sexual intercourse might be viewed as reckless as to whether infection would be transmitted or not, such acts repeated frequently with the same partner over many months, defied description as mere recklessness as to the risk of transmission.” 61. The crux of the reasoning of Applegarth J was contained in the following passage in his reasons for judgment: “The period over which the appellant engaged in

unprotected sex with the complainant, having deceived her into allowing such conduct, and the appellant’s appreciation that unprotected sex with him carried a risk of transmission, supported an inference of intent. But the evidence was not enough, in all of the circumstances, to prove the intent beyond reasonable doubt. Those circumstances include the fact that the appellant knew infection was a possible, not a probable, outcome, and did not know the degree of risk.” His Honour concluded: “The evidence left open the reasonable hypothesis that the appellant, not knowing the degree of risk, was extremely reckless and also callous. As appalling as his selfish recklessness was, it cannot be equated with a subjective, actual intent to transmit the HIV virus. In the absence of evidence of malice or knowledge of the degree of risk, a subjective intent to inflict the HIV virus was not proven beyond reasonable doubt.” 62. The reasoning of Applegarth J is, in my opinion, compelling. Expert evidence before the jury was to the effect that the objective measure of the probability of the appellant infecting the complainant during the period in which the unprotected sexual intercourse occurred was in the order of 14%. Nothing in the evidence suggested that the appellant knew of that probability. But equally nothing in the evidence justified the inference that the appellant thought the probability to be higher. [page 244] 63. Accepting that it was open to the jury to reason from their own knowledge and experience of human behaviour, the frequency and protracted period of unprotected sexual intercourse were insufficient safely to exclude as a reasonable hypothesis that the appellant engaged in that sexual intercourse with the complainant not with an intention to transmit the disease to the complainant but selfishly for his own gratification, being reckless as to whether or not the complainant might become infected. 64. For these reasons, I would allow the appeal and make the consequential orders proposed in the joint reasons for judgment.

[Nettle J concurred. Appeal allowed.]

5.44 In Zaburoni the High Court discussed R v Crabbe (see 2.20). It is important to remember that the fault element relied upon in Crabbe was ‘reckless indifference to human life’ in the context of murder. In Zaburoni the fault element which the Crown was required to prove to sustain a conviction pursuant to s 317 of the Queensland Code (the equivalent of s 33 of the Crimes Act) was intention, not recklessness (or ‘unlawfulness’). Foresight of the high probability of a given outcome as a result of the criminal behaviour is not the same as an intention to cause that outcome.

Consent reviewed 5.45 The MCCOC made the following comments on consent. MCCOC, Non-Fatal Offences Against the Person Model Criminal Code Report, Chapter 5, September 1998, pp 119–125 Consent and socially beneficial activities — sections 5.1.17–5.1.18 and 5.1.400 The general principle involved is that the law must balance the state’s paternalistic role in protecting individuals from their own poor decisions with the freedom of the individual to make poor decisions. This balance is struck differently in different times and according to different activities. The principal question in each case is whether the interests of the state in preventing harm to the individual outweigh the individual interest in freedom of choice. When the balance is in favour of the state, the individual’s choice is negated and consent is not a “defence”. As a practical matter, consent as a ‘defence’ to a charge of a non-sexual offence against the person principally arises in three situations: sporting contests; sado-masochistic sexual activity; and fights in or outside bars. The leading decision on the common law is the recent decision

of the House of Lords in Brown [1994] 1 AC 212. The accused in that case were a group of sado-masochistic homosexuals who consensually engaged in the most painful activities including torture. They were charged with assault occasioning actual bodily harm and unlawful wounding. The question on appeal was whether the consent of the victim to such acts provided a “defence” to the perpetrator. The House of Lords decided by majority that, as a general rule, with exceptions to be decided by a consideration of public policy, consent was a “defence” to a charge of assault, but not to a charge in which the infliction of actual bodily harm or worse could be proven. This was not a particularly coherent decision. The lack of logic and consistency in the decision was quickly demonstrated. In Wilson [1996] 3 WLR 125, [page 245] D was charged with assault occasioning actual bodily harm. V wanted to tattoo her lover’s initials on her buttocks but did not know how to do it. So she got him to brand the initials there with a hot knife. (V did not give evidence.) The case proceeded on the ground that V instigated the action. The court allowed an appeal from conviction and quashed it. It said (at 128): … we cannot detect any logical difference between what the appellant did and what he might have done in the way of tattooing. … Does public policy or the public interest demand that the appellant’s activity should be visited by the sanctions of the criminal law? … we are firmly of the opinion that it is not in the public interest that activities such as the appellant’s in this appeal should amount to criminal behaviour. Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, normally a matter for criminal investigation, let alone criminal prosecution. … In this field, in our judgment, the law should develop on a case by case basis rather than upon general propositions to which, in the changing times in which we live, exceptions may arise from time to time not expressly covered by authority.

The inconsistency between this decision and that in Brown is quite apparent … By way of contrast, in Welch (1995) 101 CCC (3d) 216, the Ontario Court of Appeal held that the withdrawal of consent as a defence from the jury was correct in a case in which D’s defence to a charge of sexual assault occasioning bodily harm was that the behaviour was consensual sado-masochistic activity. The injuries in that case were ‘obvious and extensive bruising’ and (possible) injury to the rectum. The basis for the decision was, in the end, that (at 239): Although the law must recognise individual freedom and autonomy, when the activity in question involves pursuing sexual gratification by deliberately inflicting pain upon another that gives rise to bodily harm, then the personal interest of the individuals involved must yield to the more compelling societal interests which are challenged by such behaviour. The decision also involves the proposition that private sexual activity does not fall within the “recreational activity” exemption. The public policy exception has to be present where the list approach is taken in order to deal with well established exceptions to such a rule, notably lawfully conducted boxing, contact sports, surgery, dangerous pastimes and religious mortifications, ‘rough horseplay’ and possibly tattooing. But each of these exceptions has limits. For example, there is a sequence of principally Canadian cases dealing with the limits of violence in that violent sport, ice hockey. Those and other cases involving sport stand at least for the proposition that there are limits to the notion of consent in such contests. … Further, it is not clear whether consent is a “defence” to be proved by the accused, or a matter to be disproved by the Crown. Nor is it clear whether the current law places the limit at cases in which bodily harm resulted, or cases in which bodily harm was intended or likely. It follows that, at common law, there is a general rule, with a host of exceptions, based on ad hoc decisions of courts on the public acceptability of violence in specific situations, which decisions are rationalised as being based on

“public policy”. In addition, it is quite clear that there is in law no fixed definition of what is “bodily harm”. … English writers commenting on Brown have suggested that the current common law is wrongly formulated because it requires a standard of social utility in order to qualify for a consent defence. So, for example, the House of Lords majority required argument that sado-masochism was socially beneficial or justified in some other way and, because it was not, held that consent was no defence. The alternative view, represented by the dissenting judgment of Lord Mustill, is that the consensual behaviour should be presumptively lawful, unless good social or policy reasons can be found for making the consents ineffective. [page 246] The position that the Committee adopted … was a list based approach. It was to the effect that a person should be allowed to consent to conduct likely to cause harm, but not conduct likely to cause serious harm except that a person should be allowed to consent to conduct likely to cause serious harm in the case of contact sports (where the rules allow for it), medical and dental treatment; tattooing, and bona fide religious mortifications. The burden should be upon the accused to raise sufficient evidence to make the issue fit to go to the jury.

DISCUSSION QUESTIONS 5.46 Assume that the following facts are true and can be proved. In each case consider Sam’s liability for the offence charged. 1.

Sam and Neville have had a long-standing but friendly rivalry. One afternoon, after a long day at the pub, they decide to settle the argument over who is ‘the best’ with a fistfight in the car park. An officious bystander calls the police, who attend and arrest both of them. Sam is charged with assault. Is Sam guilty of assault? Can he rely on ‘consent’ as a

defence to the assault charge? Why or why not? 2.

Assume the same facts as in 1, but the fight takes place in Sam’s back garden.

3.

Assume the same facts as in 1, but the fight takes place in a boxing ring at the local gym under the supervision of Sam’s boxing coach. Neville is also an amateur boxer.

4.

If you think consent may be a defence in any of cases 1 to 3, then assume the same facts but also that Neville suffers a fractured jaw.

5.

If you think consent may be a defence in any of cases 1 to 3, then assume the same facts but also that Neville suffers a brain haemorrhage and dies, and that Sam is charged with manslaughter. Can he rely on ‘consent’ as a defence?

1

MFI means ‘Marked for Identification’ and is a process used to record items so that they can be referred to, but they are not an ‘exhibit’ ie part of the evidence. At [46], McColl J explained that ‘The trial judge commenced her summing-up on the sixth day of the trial. She provided the jury with a document (MFI 10) setting out the elements of the offences on the indictment to which she drew the jury’s attention in the course of her summing-up’.

2

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 8.

3

A ‘penalty unit’ is a monetary sum defined by ‘unit’ as prescribed by the Parliament pursuant to s 17 of the Crimes (Sentencing Procedure) Act 1999.

[page 247]

6 Sexual offences INTRODUCTION 6.1 Sexual offences are a category of offences against the person derived from the basic building block of assault (see 5.2). A key sexual offence is sexual assault (known at common law as rape). The law relating to sexual assault offences has undergone significant changes in recent years to reflect modern thinking in this area. 6.2 Some of the history of these developments was noted by the Model Criminal Code Officers Committee (MCCOC) in its Model Criminal Code Report on sexual offences against the person. MCCOC, Sexual Offences Against the Person Model Criminal Code Report, Chapter 5, May 1999, pp 1–6 Over the past twenty years the law relating to sexual offences has received considerable attention in all Australian States and Territories, and has been the subject of comprehensive review and substantial change. This legislative activity can be attributed to a number of factors. First, a more liberal attitude toward sexual roles and behaviour

during the early 1970s led to a general community perception that sexual offence laws, which had remained virtually unchanged for centuries, were archaic and inadequate. Second, the women’s movement was instrumental in highlighting deficiencies in the operation of rape laws and pushing for legislative change. Third, reform focussed on sexual offences against children stemmed from concern at the extent of reported sexual abuse and its adverse effects. The nature of reform varied between jurisdictions, but common features are discernible. For example: The term “rape” was replaced by the new label “sexual assault” in some jurisdictions. The basic offence covered a broader range of conduct. Penetration of the vagina, anus and mouth by objects or parts of the body other than the penis came to be defined as rape or sexual assault in many jurisdictions. [page 248] Sexual offences came to be viewed in terms of violence. This led to offences being graded according to different levels of harm and seriousness. Evidentiary rules about sexual reputation and history, corroboration and complaint were modified. Rape within marriage came to be legally recognised. The presumption that males under the age of fourteen could not commit rape was abolished. Despite these common themes, jurisdictions in Australia still operate under eight different sets of sexual offence laws. There are marked differences in terminology and definitions. In some jurisdictions, the basic offence is “rape”, in others it is “sexual assault” or “sexual intercourse/penetration without consent”. Conduct that may amount to the basic offence in some jurisdictions may in others only constitute indecent assault. The reformulation of what is “lack of consent” has led to variations in the circumstances which can negative consent. The fault element for the basic offence differs between the existing Code jurisdictions of Queensland, Western Australia,

Tasmania and the Northern Territory and the common law jurisdictions of New South Wales, Victoria, South Australia and the ACT. At common law, the fault element is subjective. … With regard to sexual offences against children, the age of consent ranges from 16 years to 21 years across the country, and may vary according to whether the conduct is heterosexual or homosexual. There are also differences in the age of the child below which no defence (in the nature of mistake of age and so forth) whatsoever may be raised by the defendant. Finally, reform in some jurisdictions has been marked by piecemeal change. While new provisions have found their way into the statute books, many old ones have remained. The result is that some legislative schemes present a bewildering array of provisions, many of which create anomalies, or have fallen into disuse. … Objectives of Sexual Offence Laws The Committee has retained a specific category of sexual offences in the Model Criminal Code. This accords with the position in all Australian jurisdictions and other common law countries. It has been suggested, in the past, that it is unnecessary to retain a separate category of sexual offences. There are two arguments in support of this approach. First, a specific category of “sexual” offences only serves to further stigmatise victims. Second, nonconsensual sexual activity ought to be dealt with in the same way as other conduct involving violence. … It is very widely accepted, however, that the criminal law should contain specific sexual offences. That is because a sexual attack is a distinct experience which cannot be equated with a non-sexual physical injury. … In short, the Committee is firmly of the view that specific sexual offences should be included in the Model Criminal Code. Having said that, the Committee considers it appropriate to state the objectives which guided its development of these sexual offence provisions. The question is undoubtedly one of the most sensitive in the criminal law, with debate on law reform often dominated by the apparent tension between the rights of the accused and the rights of the victim. …

The law should protect the sexual integrity and personal autonomy of all members of the community. A person should not be forced to submit to a sexual act to which she or he does not consent. [page 249] Sexual offences cannot be considered in a vacuum. Timehonoured and fundamental legal principles such as the presumption of innocence and the requirement that the prosecution must prove all elements of its case beyond reasonable doubt must be observed. The vast majority of victims of sexual offences are women, and the law should address and reflect this social reality. At the same time, the law must not be discriminatory in application. The criminal law should protect children, along with others who are particularly vulnerable, from sexual abuse and exploitation. The law should be as simple and precise as possible, in order to enable the just and speedy disposition of cases, and so that it may be accessible to all citizens. Australia has international obligations to ensure the protection of persons from violence and abuse. An example is the International Convention on Civil and Political Rights and the Declaration on the Elimination of Violence Against Women. The Convention on the Rights of the Child seeks to ensure that children are afforded the same protections. What can realistically be achieved by the law is often questioned. However, this should not diminish the importance of what the law ought to strive to achieve. By outlining proscribed conduct, the law can serve a vital educative and symbolic function in its condemnation of unacceptable behaviour. … … [S]exual offences reform throughout Australia has been accompanied by other important evidentiary and procedural changes. These have been primarily aimed at reducing the trauma experienced by complainants at court and facilitating the giving of their evidence. In trials of sexual offences against children, for instance, almost all jurisdictions now allow for the evidence of a

child witness to be given by closed circuit television, or for the use of a screen in court to shield a child complainant from seeing the accused. In each jurisdiction there have also been Government initiatives in the areas of policing, counselling services and victim support services, all aimed at encouraging reporting [and] improving the experiences of those who report sexual offences. … Very broadly, three general concepts underpin the sexual offences in the Model Criminal Code. … The first is that it must be unlawful to have intentional sexual contact with persons who are not giving real consent to that contact. That includes children who are below the age of consent, who are deemed incapable of giving such consent. The second is that there is no good reason for drawing distinctions based on gender or sexuality in the drafting of sexual offences. Sex with a child must be illegal, whether the child is a boy or a girl, or the perpetrator a man or a woman. So must sex with an adult who is not consenting. The third is that the structure of offences must reflect the seriousness of the physical nature of the sexual conduct that forms the basis of the offence. The most serious form of contact should be sexual penetration, broadly defined. The next most serious should be indecent touching that does not feature sexual penetration. The least serious should be sexual behaviour that features neither penetration nor touching. …

[page 250]

STATUTORY AND COMMON LAW FRAMEWORK Statutory framework 6.3 New South Wales has taken part in the kinds of reforms identified as desirable in the Model Criminal Code Report (see 6.2). The legislative scheme now in place in New South Wales provides for five basic categories of offences:

sexual assault (Crimes Act 1900 (NSW) (‘the Crimes Act’) s 61I); assault with intent to have sexual intercourse (s 61K); indecent assault (s 61L); act of indecency (s 61N); and sexual intercourse with children and persons from other vulnerable groups within the community (see s 77 which makes consensual sexual intercourse a crime in various situations, including where the victim is under 16 years). The Crimes Act also contains offences where the ‘basic’ offence is aggravated by the degree of violence used (see s 61J(2)(a)), the age of the victim (s 61J(2)(d)), or the fact that the offence occurred in the presence of others (s 61JA). 6.4 The sexual offences include offences where the victim is not subjected to sexual intercourse without consent but is forced to take part in some other sexual act such as forced self-manipulation (masturbation) (s 80A), or where the offender performs an indecent act upon or in the presence of the victim (see s 61N). Note also the offences of prohibition of female genital mutilation (s 45) and removing person from the state for female genital mutilation (s 45A). 6.5 The Crimes Act abolishes immunities that existed at common law. At common law it was presumed that a boy under the age of 14 years could not be guilty of rape and that a husband could not, at law, be guilty of raping his wife. Both these presumptions have now been removed (ss 61S and 61T respectively). With respect to a husband’s immunity against conviction for the rape of his wife, see R v L (1991) 174 CLR 379; 103 ALR 577.

Intention and recklessness, capacity and consent,

knowledge and mistake 6.6 In Mueller, the Court of Criminal Appeal applied and explained the broad common law concepts which underpin criminal responsibility in this area. The case involved indecent assault (see 6.43), but the court emphasised that the concepts elucidated in the case of indecent assault apply equally in the context of sexual assault (see 6.7). [page 251] R v Mueller (2005) 62 NSWLR 476; [2005] NSWCCA 47 NSW Court of Criminal Appeal [The appellant was convicted of assaults with acts of indecency in circumstances of aggravation under s 61M of the Crimes Act 1900. The complainant was a young woman, 22 years of age at the time, who lived at a home conducted by a caring institution because she was suffering from a disability known as Asperger’s Syndrome. The complainant also suffered from schizophrenia. The appellant was employed at the home where the complainant and another disabled person were living, and it was the appellant’s responsibility to provide care and assistance in the home. According to the complainant, she and the appellant were on a couch in the lounge room and the complainant put her feet on the appellant’s lap. Her evidence was that the appellant touched and kissed her breasts (count 1), proceeded to bite her nipples (count 2), touched her vulva outside her clothing (count 3), kissed the complainant’s vulva outside her underclothing (count 4), and subsequently sat with the complainant on the bed in her room, took hold of her hand and forced her to touch his penis (count 5). The appellant was acquitted with respect to counts 1 and 2. The appellant admitted the physical acts of counts 3 and 4, but his evidence was to the effect that such activity was consensual. The appellant denied he forced the complainant to touch his penis (count 5), but said he held her hand on his leg and that the complainant stretched out her hand and touched his penis with her fingertips.] 1. Hunt A-JA: I agree with the orders proposed by Studdert J, for

the reasons he has given. 2. I also agree with the additional comment made by Hulme J. There will inevitably be difficulties for a jury in understanding how consent may at the same time be both (a) freely and voluntarily given and (b) given reluctantly or after persuasion. If both directions are given because of the necessity to do so in the particular case, the judge should also give assistance to the jury as to how each of those directions is relevant to the facts of the particular case, with an explanation which removes the likelihood of confusion. 3. The summing-up in this case illustrates the dangers of including in directions concerning absence of consent and knowledge of that absence every statement made by this Court and by other courts on the subject whether directly relevant to the particular case or not. … 4. … [I]n order to ensure a fair trial, the summing-up must be tailored appropriately to the particular circumstances of each case. … [There is a] … danger that the inclusion of every statement which may be very relevant in other cases, but only peripherally relevant in the particular case, converts the summing-up into a series of formulae which are not necessarily appropriate to the facts and circumstances of the particular case. 5. At the commencement of this trial, the Crown prosecutor produced for the judge a series of just such statements, and the judge incorporated them in his summing-up and repeated them many times throughout the unnecessarily long charge to the jury. (The issues were not many, but the summing-up continued for approximately a day and a half.) That is not the way in which a summing-up should be framed. 6. The difficulty which the judge had in comprehending the nature of the repeated complaint being made by Counsel for the accused in relation to his summing-up on these issues may have been caused to some extent by the difficulty Counsel had in articulating his complaint, but it was also caused by the judge’s rigid insistence in fitting the direction which had previously been missing into the series of formulae which he [page 252]

had already given, instead of giving a short clear direction which incorporated only those which were directly relevant and necessary for the circumstances of this case. 7. In the end, however, the correct directions were given. Studdert J: … 18. The Crown put the issue of consent to the jury in two ways: (a) that the complainant did not consent because she lacked the capacity to do so; (b) alternatively, that the complainant did not consent in fact. 19. The jury was given lengthy directions as to the issue of consent which appear in a number of places in the summing up, and it is necessary in considering this ground of appeal to regard the totality of the instruction given. For the purposes of this ground however, the instruction about the issue of capacity is not of direct concern. In the extracts which I will set out, emphasis is added at various places. 20. [His Honour then set out the trial judge’s directions, with emphasis added to various passages. Only the emphasised passages are included in the following extract:] The question remains what is meant by the word consent; and this is vital, members of the jury, what I’m about to say to you, absolutely vital to this case. … Consent involves conscious and voluntary permission by [the complainant] to engage in each of the five incidents of a sexual nature referred to in the charges in the indictment. … Members of the jury, consent may be given verbally, or it may be expressed by actions. Similarly, absence of consent does not have to be in words. It also may be communicated in other ways. Consent which is obtained after persuasion is still consent. However, the law specifically provides that a person who does not offer actual physical resistance to sexual conduct is not, by reason only of that fact, to be regarded as consenting to the sexual act. It is all important but that is important; I will say it again. The law specifically provides that a

person who does not offer actual physical resistance to sexual conduct is not, by reason only of that fact, to be regarded as consenting to the sexual act. Consent means consent freely and voluntarily given. Submission is not the same as consent. This is a matter that the Crown relies upon heavily. The Crown has put to you more than once, in the course of her address, that any way you look at it, all that [the complainant] could be said to have done was to have submitted. So again I repeat that. Submission is not the same as consent. Silence or absence of positive resistance to an unwanted sexual advance is not to be taken as consent, or as communication of consent. … 28. Mr Patch, in oral submissions, distilled his earlier written submissions on this first ground, stating his essential complaint to be that the judge failed to instruct the jury that lack of physical resistance is not necessarily an indication or a communication of consent or lack of consent. Mr Patch submitted that having regard to the content of the instructions earlier given, what was required … in the final directions was an unambiguous direction as to the significance of an absence of actual physical resistance. 29. I do not agree with that submission. In my opinion the direction: Silence, or the absence of positive resistance, of itself does not necessarily mean that a woman is consenting nor does it necessarily mean that a woman is not consenting was sufficient. In essence, Mr Patch complained that the word ‘physical’, rather than the word ‘positive’, should have been used in the above passage, but it seems to me that the words ‘positive resistance’ convey the meaning of ‘physical resistance’. Further, I note that in counsel’s written submission placed before the trial judge before the instruction last set out was given, counsel wrote: Silence, or the absence of positive resistance, of itself does not necessarily mean that a woman is consenting.

Nor, of itself, does it necessarily mean that a woman is not consenting. [page 253] 30. Obviously counsel considered, when preparing the terms of his written submission during the trial, the expression he used, and which the judge adopted, was adequate in the circumstances. I consider he was correct in that regard. 31. It is regrettable that the jury was given as much duplicated instruction on the consent issue as was given, but I see no error in what the jury was last told. … 32. This first point fails. 33. The second matter complained of … is that his Honour erred in the direction: ‘Consent means consent freely and voluntarily given.’ The judge was asked to withdraw that direction but declined to do so. 34. It was submitted that the words ‘freely and voluntarily’ unduly narrowed the concept of consent, conveying the notion that consent given after persuasion or with reluctance was not really consent at all. … 35. … [T]here is no statutory definition in New South Wales. Section 61R of the Crimes Act addresses the concept of consent, not to define it but rather to deal with situations where consent is vitiated. In R v Clark (unreported, NSWCCA, 17 April 1998), Simpson J considered that consent for the purposes of New South Wales law … means consent ‘freely and voluntarily given’. The other members of the court in Clark did not expressly address the definition of consent but were content to address the deficiencies in the summing up under challenge on that appeal. 36. The common law concept of consent was considered in South Australia in Question of Law (No I of 1993) (1993) 59 SASR 214. The court was there concerned with the correctness of directions given to a jury in a trial concerning offences of rape. In that case King CJ said, on the issue of “consent” (at 220): The law on the topic of consent is not in doubt. Consent must be a free and voluntary consent. It is not necessary for the victim to struggle or scream. Mere submission in

consequence of force or threats is not consent. The relevant time for consent is the time when sexual intercourse occurs. Consent, previously given, may be withdrawn, thereby rendering the act non-consensual. That may occur as a consequence of persuasion, but, if it does, the consequent consent must, of course, be free and voluntary and not mere submission to improper persuasion by means of force or threats. 37. I respectfully adopt what the Chief Justice said in the above passage as succinct statement of common law principle. 38. In the same case Perry J said (at 233): It was perfectly correct for the learned trial judge to state, as he did, ‘submission is not consent’. The law is clear that consent must be freely given and acquiescence to intercourse by reason of any threat or duress may properly be regarded as negativing consent for the purposes of the law of rape … 39. In the same case Duggan J said (at 237): As the learned trial judge told the jury, in the case of rape consent means a free and voluntary engagement in the act of sexual intercourse at the relevant time. 40. In R v Blayney & Anor (2003) 87 SASR 354; [2003] SASC 405, Debelle J, citing the above authority, said at para 20: In the context of the law of rape, it is well established that consent must be free and voluntary. 41. Whilst there was no statutory requirement that the judge here direct the jury that consent must be freely and voluntarily given, I do not consider that this direction was erroneous. The direction given must be viewed in context, not in isolation. The judge distinguished “consent” from “submission”, and he also cautioned the jury against treating silence or absence of positive resistance as amounting to consent. The judge [page 254] directed the jury that consent obtained after persuasion was still

consent. The judge directed the jury that: A woman may consent to a sexual act for variety of reasons, but whatever the reason, if she consciously permits it, that act is not without her consent. 42. A trial judge must always be careful to fashion directions that are appropriate to the circumstances of the particular case, avoiding the automatic but non essential use of particular words and expressions. However, viewed in the context of the summing up in this case, there was no misdirection in instructing the jury that consent means consent freely and voluntarily given. … [His Honour proceeded to consider the ground of appeal that the directions to the jury on the question of whether the appellant was recklessly indifferent to whether the complainant consented were in error:] 44. The relevant directions were in the terms following: As I mentioned earlier the Crown must prove beyond reasonable doubt, that the accused knew [the complainant] was not consenting, or that he was reckless as to whether she was consenting. So the question arises, what does “reckless” mean. In order to establish that the accused was acting recklessly, it must be proved beyond reasonable doubt, that he either realised the possibility that [the complainant] was not consenting, but went on regardless, or he simply failed to consider the question of whether or not she was consenting, and just went ahead with a sexual act when the risk that she was not consenting would have been obvious to a person of the accused’s mental capacity, if he had turned his mind to it. 45. Counsel for the appellant contended at the trial that it was not appropriate for the jury to be given the instruction concerning inadvertent recklessness. … It is contended that the trial judge was wrong in giving the alternative direction on recklessness in the passage italicised above. 46. The appellant’s submissions call for consideration of earlier decisions of this court in Henning (unreported, NSWCCA, 11 May

1990); Kitchener (1993) 29 NSWLR 696; and Tolmie (1995) 37 NSWLR 660; and of the Court of Appeal in Fitzgerald v Kennard (1995) 38 NSWLR 184. 47. In Henning the concept of recklessness was considered by the court in relation to charges of sexual assault. The court was constituted by Gleeson CJ and Campbell and Mathews JJ. Their Honours said (at p 31): … We do not think it follows that a conscious advertence to the possibility of non consent is necessary to a finding of recklessness under s 61D(2). A failure to advert at all to the question of consent, in other words treating it as an entirely irrelevant factor, would almost certainly amount to either knowledge or recklessness if consent was in fact withheld. 48. It is to be observed that Henning referred to s 61D(2) of the Crimes Act. That section is in terms similar to s 61R(1) of the Crimes Act, which latter section now applies to sexual intercourse offences under ss 61I, 61J and 61JA. 49. In Kitchener it was held that where consent to sexual intercourse was withheld a failure by the offender to advert at all to the possibility that the complainant was not consenting necessarily meant that the offender was ‘reckless as to whether the complainant was consenting for the purpose of s 61D(2) of the Crimes Act’. Carruthers J said (at p 730): Leaving aside those cases where the accused may be incapable of forming the requisite intent, I consider that where consent is withheld, a failure to advert at all to the possibility that the complainant is not consenting, necessarily means that the accused is “reckless as to whether the other person consents” within the meaning of s 61D(2). Such a conclusion is, in my view, consistent with both logic and legal principle. [page 255] 50. Those remarks of Carruthers J as to the application of s 61D(2) would apply equally to the language of s 61R(1). 51. In Kitchener Kirby P expressed his agreement with Carruthers J

and identified sound reasons of policy supporting the instruction the jury was given as to the meaning of what is ‘reckless’. The President said (at 697): To criminalise conscious advertence to the possibility of non-consent, but to excuse the reckless failure of the accused to give a moment’s thought to that possibility, is self-evidently unacceptable. In the hierarchy of wrongdoing, such total indifference to the consent of a person to have sexual intercourse is plainly reckless, at least in our society today. Every individual has a right to the human dignity of his or her own person. Having sexual intercourse with another, without the consent of that other, amounts to an affront to that other’s human dignity and an invasion of the privacy of that person’s body and personality. It would be unacceptable to construe a provision such as s 61D(2) so as to put outside the ambit of what is “reckless” a complete failure to advert to whether or not the subject of the proposed sexual intercourse consented to it or declined consent. Such a law would simply reaffirm the view that our criminal law, at crucial moments, fails to provide principled protection to the victims of unwanted sexual intercourse, most of whom are women. Our law is not unprincipled or inadequate in this regard. Nor is the construction of s 61D(2) preferred by me inconsistent with the basic rule that the Crown must prove beyond reasonable doubt the requisite intent on the part of the accused. The Crown does so, relevantly, by showing that the accused is “reckless” as to whether the other person consents to the sexual intercourse. This can be shown not only where the accused adverts to the possibility of consent but ignores it, but also where the accused is so bent on gratification and indifferent to the rights of the victim as to ignore completely the requirement of consent. 52. In Tolmie the court was again concerned with the question of recklessness, this time for the purpose of s 61R(1) of the Crimes Act. In this case it was held that where an accused person has not

considered the issue of consent and the risk that the complainant was not consenting to sexual intercourse would have been obvious to someone with the accused’s mental capacity had he turned his mind to it, the accused is to be taken to have satisfied the mens rea referred to by the word “reckless” as used in s 61R(1). [His Honour then quoted a passage from the President’s judgment in Tolmie, which is set out at 6.17, in the final paragraph of the extract, and continued:] 53. Each of the above cases of Henning, Kitchener and Tolmie concerned the statutory concept of recklessness under either s 61D(2) of the Crimes Act or s 61R(1) thereof. The issue there was whether there was consent to sexual intercourse. 54. Mr Patch submitted this was a point of distinction between those authorities and the present case which involves the application of the common law because s 61R does not apply to an assault with act of indecency. 55. It was the submission of Mr Patch that the common law does not recognise the concept of inadvertent recklessness. The contrary was determined by the Court of Appeal in Fitzgerald v Kennard (supra). There it was held by majority that the necessary intention for indecent assault extended to non-inadvertent recklessness. Sheller JA concluded (at 195) that: … recklessness is demonstrated by an indifference whether the party is a consenting party or not. In this case the respondent said that: ‘It didn’t enter my mind’ whether the victim may not have wanted him to touch her. 56. In the same case Cole JA said (at 204): It was argued by Mr Byrne that in circumstances where the Crown could not prove that the accused knew consent was absent, the onus was upon it to establish that the accused believed that consent may be absent but nonetheless decided to proceed with the offending actions. He contended that the Crown in this case was seeking to change [page 256]

that established position at law by asserting that it was sufficient for the Crown to establish in the accused “absence of belief in consent”. The first of these alternatives he described as “advertent recklessness” in that the accused must be shown to have adverted to the question whether consent was present or may be absent. The latter he described as “inadvertent recklessness” because the recklessness in proceeding with the offending acts occurred absent any belief one way or the other concerning the existence of absence of consent. In my opinion this submission mis-states the law so as to create an apparent but unreal distinction. If the Crown proves, to adopt the words in R v Kimber, that the accused was “indifferent to her feelings and wishes”, that is, to whether she was or was not consenting, such that it can be said that he “couldn’t care less” in that regard, recklessness in relation to consent is established. If the Crown established, to the satisfaction of the tribunal of fact, either that the accused believed that consent may be absent, or that he was unaware whether consent was present or not and, uncaring in that regard, pressed on with his actions, in my opinion it would be established that the accused was reckless as to whether the complainant consented or not. 57. Kirby P dissented in Fitzgerald, and Mr Patch submitted that this Court should not follow Fitzgerald. It was acknowledged in argument that Fitzgerald has been followed by trial judges in cases of assault with act of indecency and the decision has now stood for many years. It is not distinguishable, and I am not persuaded that it was incorrectly decided. Moreover, I cannot perceive any sound reason for having a different notion of recklessness for offences involving an act of sexual intercourse from offences involving assault with an act of indecency. 58. The instruction given by the trial judge to this jury was given consistently with the principles determined in the authorities reviewed, and in particular in accordance with Fitzgerald v Kennard. 59. Mr Patch submitted in the alternative in relation to this second

ground that if reckless inadvertence is to be considered in connection with an offence of assault with an act of indecency it would only apply where there is a decision taken by the offender not to consider the issue of consent. That submission seems to me to introduce an extremely artificial element and in any event had the jury been instructed in accordance with that submission, the instruction would have been contrary to the principles in the cases to which I have above referred. In my opinion, the trial judge was correct in the instruction given on the issue of recklessness. 60. There was one further submission Mr Patch made about the subject instruction. He submitted that its expression could have distracted the jury, leading it to believe that it ought to apply an objective test as to the issue whether it was apparent or ought to have been apparent that the complainant was not consenting. I am not attracted by that submission. His Honour specifically directed the jury that it was the accused’s state of knowledge or belief with which it was concerned, not the knowledge or belief of some other person. … [His Honour then considered the ground of appeal that the trial judge’s directions on the question of the complainant’s capacity to consent were in error:] 69. … I repeat the relevant direction for the purposes of this ground, italicising that portion of the direction to which this ground is addressed: As I have said, members of the jury, the capacity of [the complainant] to consent is in issue. The Crown asserts that she did not have the capacity to consent because of the disabilities from which she suffers. Now this is very important members of the jury; where capacity to consent is in issue what the Crown must prove, beyond reasonable doubt, is that [the complainant] did not have sufficient knowledge or understanding to comprehend that what was proposed to be done was the physical fact relied upon by the Crown in respect of each of the five charges. Or, that she did not have sufficient knowledge or understanding [page 257]

to comprehend that the act proposed in each case was one of a sexual nature as distinct from an act of a totally different character. 70. The direction given follows R v Morgan [1970] VR 337 … . Unlike the present case, Morgan involved the alleged offence of rape. Whilst the directions may have been appropriate to such a charge, it was submitted that they were not appropriate here because the charge was a different one, namely assault with act of indecency. Such an offence is of a type that may involve an assault with no sexual content: see R v Beserick (1993) 30 NSWLR 510. The Court’s attention was directed to the judgment of Hunt CJ at CL in that case and the definition of assault at 537 and the direction that it was thought was required in Beserick. 71. Mr Patch argued that it was not appropriate for the judge to direct the jury in such a way as to introduce an issue of the complainant’s understanding that the act in each case was of a sexual nature. In short, Mr Patch submitted that set the bar too high for the issue of consent and the alternative instruction should not have been given. 72. I do not accept that submission. The assault and the element of indecency in respect of each of these counts upon which the appellant was convicted were inseparable. In my opinion, consistently with the manner in which the case was conducted, the judge was correct, having regard to the nature of the offences charged, to give Morgan-style instruction to the jury. … 98. The test for capacity in the instruction given to the jury was stated in accordance with the decision in R v Morgan (see paras 70–71 above). There was a case to go to the jury on the issue of the complainant’s capacity. However, although what was stated to be required to establish incapacity was relatively undemanding, I consider on the evidence that it is unlikely the jury did accept that she did not have the capacity to consent. Indeed, the Crown conceded as much in the course of the hearing of this appeal. 99. Of course, this leaves the issue as to whether the Crown established that the complainant did not consent in fact, and as to this Mr Patch submitted that the jury ought at least to have

entertained a reasonable doubt, particularly since the complainant gave no evidence as to counts 3 and 4 that she did not consent. Nor did the complainant tell Mr Kennedy, to whom she first spoke about what had occurred the previous night, that the appellant had acted against her will. Mr Patch also drew attention to the episode in the staff room where the complainant entered the staff bed with the appellant. As to this, Mr Patch referred to what the complainant told Ms Dunn, according to Ms Dunn’s notes made on 29 April 2001: “I fell for it. I knew I shouldn’t have said yes, but I did.” 100. Mr Patch submitted that although none of the assaults was alleged to have occurred in that bed, the complainant would hardly have entered the bed willingly if she had earlier been assaulted. … [His Honour then recounted the sequence of events concerning the offences charged and continued:] 108. The appellant had given evidence that when earlier he had been on the couch with the complainant [he] asked the complainant if she wanted to touch his penis, and said: I started to pull her hand towards my penis … She pulled her hand away and said “No, I don’t want to do that.” So I said “Okay, we won’t.” 109. My assessment of the evidence … concerning count 5 is that the jury was entitled to reject the appellant’s account of the incident as highly implausible. That account called upon the jury to consider, as a reasonable possibility at least, that the complainant, having already rejected an approach for such contact that night, at a time later on after she had expressed herself as feeling unwell, would have deliberately stretched out her [page 258] hand to make the contact. It is not surprising that the jury found the appellant’s version unacceptable. … 111. [In relation to counts 3 and 4] … The complainant gave evidence that the appellant rubbed and kissed her vulva outside her underwear.

112. The complainant gave no evidence that she resisted the appellant when he rubbed and kissed her underclothing. The jury was invited to conclude that there was submission but no consent. The complainant was asked in her evidence in chief: Q. Did you give permission to Ytzak [the name by which the appellant was known] to do the things that you have described on the couch? A. No, I didn’t. 113. Objection was taken to that question and in the exchange that followed the judge asked whether verbal permission was what was meant and suggested that that should be made plain to the witness. However the question was objected to and the answer was not struck out. 114. Later in cross examination the complainant was asked: Q. Ytzak’s told me that he never made you do anything that night. He only ever asked you. Do you understand that that is what he told me? What do you say about that? A. I say I don’t know if he made me do it or not. He — I’m all blank. 115. For his part, the appellant gave evidence that he began stroking the complainant’s legs with her express permission, although there was not much conversation. The appellant said the complainant gave him permission to kiss her legs. Having done so, he kissed her thighs and then her vulva outside her underpants. Then he stood up to kiss her breasts and the complainant said “Don’t do that”. The appellant says he then asked “Is it okay to keep kissing you like I was before?”, to which the complainant responded “Yeah, that’s fine”. 116. So it is that the appellant contends that he sought and obtained permission to kiss the complainant’s vulva after the complainant refused to let him kiss her breasts. It seems to me that a jury was entitled to regard that as being a highly unlikely chain of events. 117. The appellant was in a position of influence and authority over the complainant, a feature to be considered when the jury was

addressing the distinction between submission and consent. The jury had direct evidence that the complainant did not consent to having her hand placed on the penis of the appellant, and also direct evidence that she would not permit the appellant to kiss her breasts. … [His Honour then set out evidence given by the appellant that bears upon her attitude to what the appellant did, and continued:] 118. Plainly the jury accepted the evidence of the complainant … as to count 5 as it was entitled to do. It is equally plain that the jury rejected the appellant’s version that … count 5 related to activity in which the complainant was a consenting party, and, indeed, in which she was the active participant. Again this rejection was a conclusion the jury was entitled to reach. Having done so, it was not a giant step for the jury to reject the appellant’s assertion that he asked for and obtained the complainant’s permission for the activities to which count 3 and count 4 relate, albeit after such activities had started but were interrupted. Particularly is this so, when the appellant alleged permission to resume this more intimate contact was given immediately after permission was refused for him to kiss the complainant’s breasts. … 119. It seems to me, having reflected on the evidence, that it was open to the jury to find that the complainant did not consent to the acts the subject of counts 3 and 4, and that she actively resisted the appellant’s conduct relating to count 5. Moreover, I consider [page 259] that it was open to the jury to find beyond reasonable doubt that the complainant conveyed to the appellant the absence of consent in relation to count 5 by her attempted resistance. As to counts 3 and 4, it seems to me that it was open to the jury to conclude similarly that the respondent did what he did, reckless as to whether the complainant was consenting or not. … 131. Hulme J: I agree with the order proposed by Justice Studdert and with his Honour’s reasons. I would add only this. 132. There is a deal to be said for the view that in summings up in sexual assault cases judges should either avoid, or at least be very careful in, referring to consent being “freely and voluntarily given”.

133. “Freely” is defined in The New Shorter Oxford English Dictionary as, inter alia: “1. Of one’s own accord, spontaneously; without constraint or reluctance; unreservedly, without stipulation; readily, willingly.” or “2. Without restraint or reserve with regard to speech; unreservedly, frankly, openly, plainly.” “4. Without stint; plentifully, abundantly; generously, liberally.” 134. “Voluntary” is defined as, inter alia: “Of a feeling, sentiment, etc: arising or developing in the mind without external constraint; purely spontaneous in origin or character” and “of an action: performed or done of one’s own free will, impulse or choice; not constrained, prompted or suggested by another.” 135. It is clear law that, as a defence to a charge of sexual assault, consent need not accord with many of these meanings. Consent given reluctantly or only after a deal of persuasion is still, as a matter of law, consent. 136. In this case as Studdert J has pointed out, although using the words ‘consent freely and voluntarily given’, the trial judge did not leave the topic with that simple expression but went on to explain the concept of consent in terms which were sufficient to cure any ambiguity in the expression. [Appeal dismissed.]

SEXUAL ASSAULT Introduction 6.7 The basic sexual offence in New South Wales is sexual assault. This offence is created by s 61I of the Crimes Act.

61I Sexual assault Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.

6.8 Sexual assault replaces the old common law offence of rape. The framing of the modern offence is meant to reflect the fact that sexual offences are crimes of violence rather than sex. The definition of sexual intercourse is expanded to include more than penetration of the vagina by a penis. The offence is gender neutral. Males can [page 260] be sexually assaulted by women, and by other males, and females can be sexually assaulted by males, and by other females. The physical elements of the offence of sexual assault are: an act of sexual intercourse; without consent. The fault elements are that the accused: knew that the victim was not consenting; or was reckless with regard to consent.

Physical elements Act of sexual intercourse 6.9 Section 61H of the Crimes Act provides a definition of sexual intercourse. (1) For the purposes of this Division, sexual intercourse means: (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).

6.10 It is axiomatic that an act of sexual intercourse must be an intentional act. This is usually unproblematic. However, if the issue arises at trial, the judge must instruct the jury that it must be satisfied that the accused intended to perform the relevant act rather than it being, for example, an accident. R v AJS (2005) 12 VR 563; [2005] VSCA 288 Court of Appeal, Victoria [The appellant was the complainant’s grandfather. The complainant, aged 13, had been sleeping the night at the appellant’s house when she became unwell. The appellant rubbed her abdomen to try and relieve her pain. The complainant said that the appellant put his finger inside her vagina. The appellant denied that this happened, but said that if it did it was an accident. He did not intend to do so. The trial judge directed the jury that if they found the appellant’s finger entered the complainant’s vagina the offence of incest was proved. The appellant appealed arguing that the judge should also have told the jury that they needed to find he intended to put his finger into the complainant’s vagina.] [page 261]

Maxwell P, Nettle JA and Redlich AJA: … 18 On this appeal, counsel for the applicant submitted that intent was an essential element of the offence of incest and, further, that it had been one of the principal issues in the trial. He submitted that the failure of the Judge to direct the jury as to intent involved a fundamental departure from a proper trial and constituted a miscarriage of justice. Counsel further submitted that the direction on the alternate charge of indecent assault — that the applicant’s conduct must have been “wilful” — could only have served to compound the deficiency in relation to the direction on the count of incest. He submitted that the contrast in the directions given on the primary and alternative counts would have tended to emphasise in the jury’s mind that intention was not an element of the offence of incest which the prosecution was required to prove beyond reasonable doubt. 19 Remarkably, having regard to the fundamental principles to which we will refer, the Crown did not concede before this Court that intent was an “element” of the offence. The Crown relied on the fact that — in contradistinction to the alternative charge — the statutory language creating the offence of incest made no reference to intention. 20 In our view, this submission is without foundation and must be rejected. As counsel for the Crown acknowledged, it is a cornerstone of our notions of criminal responsibility that the accused must be shown to have had a blameworthy state of mind. As Stephen J pointed out more than a century ago in Reg v Tolson: The full definition of every crime contains expressly or by implication a proposition as to a state of mind. Therefore if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed. 21 The reference to the mental element being proved to be absent was explained in Woolmington v Director of Public Prosecutions, in which the House of Lords laid down what Viscount Kilmuir LC later described, in Bratty v Attorney-General (Northern Ireland), as “the overriding principle”, namely that — It is for the prosecution to prove every element of the

offence charged. Viscount Kilmuir continued: One of these elements is the accused’s state of mind; … if, after considering evidence properly left to them by the judge, the jury are left in real doubt whether or not the accused acted in a state of automatism, it seems to me that on principle they should acquit because the necessary mens rea — if indeed the actus reus — has not been proved beyond reasonable doubt.[5] 22 Again, Dixon, J. in Thomas v R described the mental element in crime as “the most fundamental element in a rational and humane criminal code”. In Ryan v R, Barwick CJ said that “an accused is not guilty of a crime if the deed which would constitute it was not done in exercise of his will to act”. This reflected the view expressed in Hardgrave v The King by Griffith CJ, that a person is not criminally responsible for an act “which is done independently of the exercise of his will or by accident”. The existence of a voluntary, willed act is an essential element of the crime. 23 An intent to do the physical act involved in the crime charged is indispensable to criminal responsibility. Intent is, unequivocally, an element of the crime. It is trite law that proof of an offence involves proof that the accused acted voluntarily and intended the act with which he is charged. In He Kaw Teh v The Queen, Brennan J stated as a general principle that: There is a presumption that in every statutory offence, it is implied as an element of the offence that the person who commits the actus reus does the physical act defined in the offence voluntarily and with the intention of doing an act of the defined kind. [page 262] 24 There are competing views amongst jurists, writers and academics as to whether the voluntariness of the accused’s conduct should be regarded as part of the actus reus or as part of the mens rea. In Director of Public Prosecutions (NT) v WJI, Gummow and Heydon, JJ. considered that the voluntary nature of

the conduct of the accused must be either an element of the actus reus or an element of the mens rea. 25 To prove the crime of incest, the prosecution must establish that the act of penetration was a voluntary and intentional (or willed) act on the part of the accused. The element of intent may not often be in controversy in crimes involving sexual penetration but, when intent is in issue, it is of paramount importance that the jury be directed as to the obligation of the prosecution to establish intent beyond reasonable doubt. 26 In this Court, the Crown submitted that, notwithstanding the failure by the Judge to refer to the need for the prosecution to establish intent, there had been no substantial miscarriage of justice having regard to the manner in which the trial had been conducted. It was said that, since both the Crown and the defence case had been conducted before the jury on the basis that the intention of the applicant was a central issue, the defect in the direction was not fatal. The jury would have recognised — so it was submitted — that it was necessary for the prosecution to establish that the applicant intended to penetrate the complainant’s vagina. It was submitted that the proviso (s.568 Crimes Act 1958) should be applied, since there was no chance that the applicant would have been acquitted if the correct instruction had been given to the jury. 27 We reject this submission. In our view, the applicant did not receive a fair trial according to law and there has been a substantial miscarriage of justice. … [Appeal allowed. Conviction quashed. New trial ordered.]

Without consent 6.11 The Crown must prove, beyond reasonable doubt, that the victim did not consent to the act of sexual intercourse. Section 61HA sets out a number of circumstances where an apparent consent to sexual intercourse is deemed not to be a valid or effective consent. The section adopts the definition of consent that was established by the common

law, as explained and applied in R v Mueller (2005) 62 NSWLR 476; [2005] NSWCCA 479 (see 6.6). 61HA Consent in relation to sexual assault offences (1) Offences to which section applies This section applies for the purposes of the offences under sections 61I, 61J and 61JA. (2) Meaning of consent A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse. (3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other 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

[page 263] (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. (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 medical 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. (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 (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.

[page 264] Commentary on s 61HA 6.12 Section 61HA was inserted into the Crimes Act by the Crimes Amendment (Consent — Sexual Assault Offences) Act 2007, and took effect as part of the law on 1 January 2008. Some observations can be made about the section and its effect on the law in this area: 1.

The section only applies to the offences of sexual assault (s 61I) and aggravated sexual assault (ss 61J and 61JA) (see s 61HA(1)). It does not apply to the other sexual offences in the Crimes Act, where the common law will continue to determine the relevant law with respect to consent.

2.

The section gives a definition of consent (s 61HA(2)) that is the same as the definition adopted in the case law. The cases that explain what ‘freely and voluntarily’ means will, therefore, continue to be relevant (see R v Mueller (6.6) and R v Clark (6.13)).

3.

Section 61I provides that, to be guilty of sexual assault, an accused must ‘know’ that the other party is not consenting. Read literally this would appear to exclude other possible fault elements such as recklessness. Section 61HA(3) provides an extended definition of ‘know’ to provide that recklessness with respect to consent is sufficient, and, when it comes to a belief in consent, that belief must be both honest and reasonable. Section 61HA(3)(b) reflects the law before

the enactment of s 61HA so, again, older cases dealing with recklessness (see R v Mueller (6.6) and R v Hemsley (6.16) and R v Tolmie (6.17)) will continue to be relevant. Section 61HA(3)(c) reflects a significant change in the law and will be discussed in detail at 6.14. 4.

Section 61HA(4) and (5) sets out circumstances where an apparent consent is no consent for the purposes of the law. As to the effect of these provisions, see 6.13.

5.

Section 61HA(6) sets out evidentiary matters, that is, facts the jury can take into account when deciding whether or not the complainant did in fact consent to the act of sexual intercourse.

6.

Section 61HA(7) provides that mere acquiescence is not consent, that is, a person does not have to fight against unwanted sexual intercourse to be taken to have refused consent.

7.

Section 61HA(8) makes it clear the section is not a ‘code’, that is, it does not cover every aspect of consent. Every case will turn on its own facts and, if there are other grounds that show the complainant was not consenting, they may still be raised.

Consent must be free and voluntary 6.13 Section 61HA(4)(c) provides that consent to sexual intercourse is no consent if it is given in response to threats of force or terror. This issue arose in Clark, where the accused alleged that the victim consented to sexual intercourse with him in order to get his protection from others who threatened to hurt him. The victim, on the other hand, denied consenting at all. It was clear that, if the jury accepted the victim’s version of events, Clark was guilty of sexual assault, but the question for the court

[page 265] was would Clark also be guilty if the jury accepted his, that is, the accused’s, version of events? In the course of the judgment, the requirements for ‘free and voluntary’ consent to sexual intercourse were stated in a manner subsequently approved in M