Principles of Criminal Law in Queensland and Western Australia [3 ed.] 9780455242972

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PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

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PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Kelley Burton  BBus(Accy)(Dist)/LLB(Hons) GradDipLegalPrac LLM (QUT) PhD (USQ)

Associate Professor, School of Law and Criminology, University of the Sunshine Coast

Thomas Crofts  LLB(Hons) (Lond) LLM (Wuerzburg) Dr iur (Frankf/O)

Professor, School of Law and Department of Social and Behavioural Science, City University of Hong Kong

Stella Tarrant  B Juris (Hon) LLB (UWA), LLM (Yale) Associate Professor, Law School, University of Western Australia

THIRD EDITION

LAWBOOK CO. 2020

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW 2009 ISBN: 9780455242972

© 2020 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. All legislative material herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. The Copyright Act 1968 permits certain reproduction and publication of Commonwealth legislation. In particular, s 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For reproduction or publication beyond that permitted by the Act, permission should be sought in writing. Requests should be submitted online at www.ag.gov.au/cca, faxed to (02) 6250 5989 or mailed to Commonwealth Copyright Administration, Attorney-General’s Department, Robert Garran Offices, National Circuit, Barton ACT 2600. Product Developer: Elizabeth Gandy Edited and typeset by Newgen Digitalworks Printed by Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info: http://www.pefc.org

REVISED PREFACE TO THE THIRD EDITION We aspire to engage students of the criminal law in Queensland and Western Australia by explaining and applying its fundamental principles. The Codes in Queensland and Western Australia are explored together in this text because they stem from the Griffith Code, which was enacted in 1899 and 1913, respectively. While the criminal law in these jurisdictions has been dynamic, the core principles are identical in the 21st century. Where appropriate this text illustrates complex principles with diagrams and tables. Each chapter systematically embodies an elements toolbox, which identifies the elements of an offence, defence or excuse. The guides to problem solving are student-​centred because they equip law students with the ability to apply their knowledge of the criminal law to real world scenarios. The revision questions and answers provide law students with a means of monitoring their understanding of the criminal law, while the problem questions and answers motivate students by supplying them with instant and worthwhile feedback on their ability to apply the criminal law to a problem. The critical thinking questions encourage students to reflect on the criminal law and drive curiosity about how the criminal law could be continuously improved. This text manifests the collaborative combination of our considerable discipline expertise. Dr Kelley Burton was responsible for writing ­chapters 2, 3, 8, 9, 10, 11, 14, 15 and 16; Professor Thomas Crofts was responsible for writing ­chapters 1, 2, 4, 5, 6 and 12; and Associate Professor Stella Tarrant was responsible for ­chapters 7 and 13. Dr Kelley Burton sincerely thanks Brian ‘Daniel’ O’Connell, Research Assistant, School of Law and Criminology, University of the Sunshine Coast, for leading a growing tree approach and significantly contributing to ­chapters 2 (Queensland parts), 3, 8, 9, 10, 11, 14, 15 and 16, in the third edition of this book; and for working so diligently, both independently and “in company”. We would like to thank our teachers, mentors, colleagues and students for inspiring our writing and the evolution of this text. We sincerely thank Lawbook Co, particularly Liz Gandy and Abinaya Sivarasu, for their patience, and for ameliorating the editing and publication process.

vi      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Last, but certainly not least, we give our heartfelt thanks and wishes to our family and friends for their constant and unconditional support. The Queensland and Western Australian criminal law discussed in this text is current as at December 2019. KELLEY BURTON THOMAS CROFTS STELLA TARRANT April 2020

CONTENTS Preface.................................................................................................................. v Table of Cases........................................................................................................ ix Table of Statutes..................................................................................................xxiii 1 Introduction.............................................................................................................1 2 Procedure................................................................................................................ 11 3 Double Jeopardy –​Double Prosecution and Double Punishment.................. 61 4 Fatal Offences....................................................................................................... 107 5 Non-​fatal Offences............................................................................................... 155 6 Sexual Offences.................................................................................................... 189 7 Property Offences................................................................................................ 227 8 Drug Offences...................................................................................................... 277 9 Provocation, Diminished Responsibility, Extraordinary Emergency and Duress....................................................................................... 319 10 Self-​defence.......................................................................................................... 365 11 Acts Independent of Will and Accident............................................................ 397 12 Insanity, Intoxication and Immaturity.............................................................. 419 13 Honest Claim of Right to Property and Mistake of Fact............................... 443 14 Attempts............................................................................................................... 467 15 Conspiracies and Parties..................................................................................... 489 16 Sentencing............................................................................................................ 527 Index.............................................................................................................................. 553

TABLE OF CASES A Attorney-​General’s Reference (No 1) [1975] QB 773 .............................................. [15.70] Attorney-​General (Qld) v Bosanquet [2012] QCA 367 .......................................... [12.140] Aubertin v Western Australia (2006) 33 WAR 87; [2006] WASCA 229 ......[6.150], [12.150], [13.180], [13.240]

B BRK v The Queen [2001] WASCA 161 .................................................................. [6.140] Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 ....................................... [16.10] Barca v The Queen (1975) 133 CLR 82 .................................................................. [11.80] Bardsley v The Queen (2004) 29 WAR 338; [2004] WASCA 251 ............................. [15.60] Barker v The Queen (1983) 153 CLR 338 ............................................................... [7.320] Barlow v Dale (1993) CA 406 ...................................................................................[8.65] Batty v Attorney General (Northern Ireland) [1963] AC 386 .................................... [12.40] Blackfoot Corporation v Locker [1948] 1 KB 349 ................................................... [13.20] Bolitho v Western Australia (2007) 34 WAR 215 .............................[7.430], [7.450], [7.580] Borg v The Queen [1972] WAR 194 ....................................................................... [15.55] Boughey v The Queen (1986) 161 CLR 10 ........................................[1.40], [4.300], [5.40] Bowman v The Queen [1980] WAR 65 .....................................................................[7.40] Brady v Schatzel [1911] St R Qd 206 ........................................................................[5.30] Braysich v The Queen (2011) 243 CLR 434 ............................................................ [6.150] Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84 ................................... [4.180] Britten v Alpogut (1986) 23 A Crim R 254 ........................................................... [14.100] Brown v Blake [2000] WASCA 132 ...........................................................................[5.80] Brown v Deveroux (2008) 192 A Crim R 190; [2008] WASC 299 ........................... [7.450] Bruce v The Queen (1987) 74 ALR 219 .................................................................. [7.130] Buttigieg v The Queen (1993) 69 A Crim R 21 ...................................................... [9.160]

C C v Director of Public Prosecutions [1995] UKHL 15; [1996] AC 1 ....................... [12.160] Callaghan v The Queen (1952) 87 CLR 115 .............................................. [4.180], [4.360] Cameron v The Queen (2002) 209 CLR 339 ............................................. [16.70], [16.80] Campbell v The Queen [1981] WAR 286 ..................................................................[4.80] Campbell v The Queen [2014] NSWCCA 175 ........................................................ [4.285] Clemesha v The Queen [1978] WAR 193 ................................................................ [7.460] Cockram v Western Australia [2010] WASC 211 ...................................................... [2.170] Connolly v Meagher; Ex parte Connolly (1906) 3 CLR 682 ....................... [3.130], [3.140] Cooper v McKenna [1960] Qd R 406 .......................................... [11.30], [12.40], [12.100] Corker v Western Australia (2004) 146 A Crim R 33 ............................................... [10.90] Corruption and Crime Commission v Moodie [2009] WASCA 72 .......................... [7.450] Couzens v The State of Western Australia [2019] WASCA 54 .......................... [4.70], [4.90] Cutter v The Queen (1997) 94 A Crim R 152; [1997] HCA 7 .................... [11.80], [14.30]

x      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

D D v Edgar [2019] WASC 183 ................................................................................... [7.370] DPP v K [1990] 1 WLR 1067 ...................................................................................[5.20] DPP (No 1 of 1993) (1993) 66 A Crim R 259 ...........................................................[6.80] Daniels v The Queen (1989) 1 WAR 435 .............................................................. [13.180] Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34 ....................... [15.60], [15.70] Davies v Western Australia (2005) 30 WAR 31 ...........................................................[8.60] Day v The Queen (1995) 81 A Crim R 60 .....................................[15.10], [15.13], [15.15] Dearnley v The King [1947] St R Qd 51; (1947) 41 QJPR 71 ............................... [12.130] Devine v The Queen (1983) 8 A Crim R 45 .............................................. [5.170], [5.280] Donnelly v Rose [1995] 1 Qd R 148 ........................................................................[8.65] Donovan v The State of Western Australia [2017] WASCA 170 ............................... [12.100] Drago v The Queen (1992) 63 A Crim R 59 ..................................[6.210], [6.220], [6.300] Dudley v Ballantyne [1998] WASCA 169 ................................................................. [9.250]

E EAGD v Western Australia (No 2) [2014] WASCA 68 .............................................. [15.60] Elwin v Robinson [2014] WASCA 46 ...................................................................... [2.110] English v The Queen (1993) 68 A Crim R 96 ....................................................... [14.100] Evans v The State of Western Australia [2010] WASCA 34 ........................... [9.210], [12.90]

F Fox v Beringer [2011] WASC 38 ...............................................................................[2.40]

G GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183 ................ [13.160], [13.170], [13.180] Galea v The Queen (1989) 46 A Crim R 158 .......................................................... [7.280] George v Rockett [1990] HCA 26; (1990) 170 CLR 104 ............................. [2.20], [2.240] Geraldton Fisherman’s Co-​op v Munro [1963] WAR 129 ...................................... [13.220] Gibbon v Pepper (1695) 2 Salk 637 ...........................................................................[5.20] Gibson v Wales [1983] 1 WLR 393 .......................................................................... [7.190] Giorgianni v The Queen (1985) 16 A Crim R 163 .................................................. [15.55] Goodwyn v Western Australia [2013] WASCA 141 ................................................. [10.120] Gough v Rees (1929) 46 TLR 103 .......................................................................... [15.70] Graham v The Queen (2016) 333 ALR 447 ............................................................. [10.80] Green v Western Australia [2011] WASCA 178 ......................................................... [2.170] Greene v The Queen (1997) 191 CLR 334 ......................... [9.90], [9.150], [9.170], [9.250] Griffiths v The Queen (1994) 76 A Crim R 164 ...................................................... [4.340] Grills v Ng [2000] WASCA 294 ............................................................................... [3.150]

H H v Western Australia (2006) 163 A Crim R 151; [2006] WASCA 53 ....................... [16.70] Hall v Fonceca [1983] WAR 309 ....................................................... [5.50], [5.70], [5.130], [5.280], [6.300] Halley v The Crown (1938) 40 WALR 105 .............................................................. [7.280] Harkin v The Queen (1989) 38 A Crim R 296 ........................................................ [6.210]

TABLE OF CASES      xi

Harwood v The State of Western Australia [2016] WASCA 8 .................................. [13.130] Hayman v Cartwright [2018] WASCA 116 ..........................................[1.40], [1.60], [5.50], [5.280], [6.220] He Kaw Teh v The Queen (1985) 157 CLR 523 ...................................................... [14.30] Heaton v Western Australia [2013] WASCA 207; (2013) 234 A Crim R 409 ................................................................................ [4.180], [4.360] Heferen v The Queen (1999) 106 A Crim R 89 ...................................................... [16.90] Higgins v The State of Western Australia [2016] WASCA 142 ........................[5.40], [6.120], [6.150], [6.200], [13.180] Hollywood v City of Joondalup [2010] WASC 306 ....................................[13.30], [13.100] Holmes v DPP [1946] AC 588 ................................................................................. [9.160] Hood v The Queen (2000) 111 A Crim R 556 ........................................................ [7.170] Hooper v The Queen [2000] WASCA 394 ............................................................... [11.50] Hope v Brown [1954] 1 All ER 330 ........................................................... [14.30], [14.80] Houghton v The Queen (2004) 144 A Crim R 343; (2004) 28 WAR 399; [2004] WASCA 20 ...............................................[5.150], [5.160], [11.70] Hughes v The King (1951) 84 CLR 170 .................................................................. [4.310] Hunt v Maloney [1959] Qd R 164 .......................................................................... [15.30] Hunter v The State of Western Australia [2014] WASCA 184 ................................... [7.460] Hutchinson v Western Australia (2003) 144 A Crim R 28; [2003] WASCA 323 ...... [13.220] Hyam v DPP [1975] AC 55 ..................................................................................... [11.80]

I Ibbs v The Queen (1987) 163 CLR 447 .................................................................. [16.50] Ibbs v The Queen [1988] WAR 91 ............................................................... [6.70], [6.130] Ilich v The Queen (1987) 26 A Crim R 232 ............................ [7.30], [7.80], [7.90], [7.460] Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140 ............[13.40], [13.100] Investments (WA) Pty Ltd v City of Swan (No 2) [2013] WASCA 251 ................... [13.100]

J JWRL v Western Australia [2009] WASC 285 .......................................................... [2.170] Jeffery v State of Western Australia [2009] WASCA 133 ............................................ [5.230] Johnson v Ayling [2013] WASC 312 ...........................................................................[5.50] Johnson v Ramsden [2019] WASC 84 ...................................................................... [6.210] Johnson v Staskos [2015] WASCA 32 .........................................................................[2.40] Johnson v The Queen [1964] Qd R 1 ........................................................................[9.40] Johnson v The Queen (1976) 136 CLR 619 .......................... [9.40], [9.80], [9.120], [9.180] Johnson v The State of Western Australia [2009] WASCA 71 .................................... [9.240]

K KIP v Western Australia [2013] WASCA 71 .............................................................. [5.230] Kaporonovski v The Queen (1973) 133 CLR 209; [1973] HCA 35 .................[9.30], [9.40], [11.20], [11.40,] Kearnan v The Queen (Unreported, Tasmanian Court of Criminal Appeal 80/​1968, 1968) ....................................................................................... [9.120] Kerber v Towler [2014] WASC 419 ............................................................................[2.80] King v The Queen (1986) 161 CLR 423 ................................................................. [15.10] King v The Queen (2003) 215 CLR 150 ................................................................. [7.350]

xii      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Knight v The Queen (1992) 175 CLR 495 .............................................................. [11.80] Krakouer v Western Australia (2006) 161 A Crim R 347; [2006] WASCA 81 ............................................................. [4.70], [4.80], [4.90], [4.400] Kuczynski v The Queen (1989) 2 WAR 316 ............................................................ [5.160]

L Lai v The Queen (1989) 42 A Crim R 460 ................................................................[8.60] Lancashire & Yorkshire Railway Co v MacNicoll (1919) 88 LJKB 601 .......................[7.80] Lavallee [1990] 4 WWR 1 ..................................................................................... [10.110] Lee Chun-​Chuen v The Queen [1963] AC 220 .........................................................[9.70] Lergesner v Carroll (1990) 49 A Crim R 51; [1991] 1 Qd R 206 ......[5.80], [5.280], [11.70] Levy v The King (1949) 51 WALR 29 ..................................................................... [4.130] Lewis v The Queen (1998) 20 WAR 1 ..................................................................... [7.450] Libke v The Queen (2007) 230 CLR 559; 81 ALJR 1309; [2007] HCA 30 ................[6.60] Lindsay v The Queen (2015) 255 CLR 272 ............................................................. [9.150] London and Globe Finance Corp Ltd, Re [1903] 1 Ch 728 ..................................... [7.430]

M Macaree v Western Australia [2011] WASCA 207 ..................................................... [4.360] Macartney v The Queen [2006] WASCA 29; (2006) 31 WAR 416 ........................... [4.300] Mackenzie v The Queen (2004) 150 A Crim R 451; [2004] WASCA 146 ............................................................................... [2.160], [2.180] Macleod v The Queen (2003) 214 CLR 230; [2003] HCA 24 ................................. [7.430] Makin v Attorney-​General (NSW) [1894] AC 57 ..................................................... [15.65] Mamote-​Kulang v The Queen (1964) 111 CLR 63; [1964] HCA 21 ....................... [11.60] Mancini v Director of Public Prosecutions [1942] AC 1 .............................................[9.70] Manisco v The Queen (1995) 14 WAR 303 ............................................................. [8.110] Markarian v The Queen [2001] WASCA 393 ........................................................... [7.470] Markarian v The Queen (2005) 228 CLR 357 .........................................[16.150], [16.153] Markby v The Queen (1978) 140 CLR 108 ............................................................. [15.65] Marshall v Western Australia [2008] WASC 99 .......................................................... [2.240] Martin v The Queen (No 2) (1996) 86 A Crim R 133 .................................... [4.40], [4.50] Martincic v The State of Western Australia [2019] WASCA 134 .............................. [13.130] Marwey v The Queen [1977] HCA 68 .................................................................. [10.120] Masciantonio v The Queen (1995) 183 CLR 58 ........................................... [9.20], [9.120] Mathews v The Queen (2001) 24 WAR 438; [2001] WASCA 264 ............... [7.430], [7.470] McHale v Watson (1966) 115 CLR 199 ................................................................... [9.130] Mercanti v Western Australia [2005] WASC 28 ......................................................... [15.90] Michael v Western Australia (2008) 183 A Crim R 348; [2008] WASCA 66 .................................................................................. [6.90], [6.120] Michaels v The Queen (1995) 184 CLR 117 .............................................................[2.10] Milenkovski v Western Australia [2011] WASCA 99; (2011) 42 WAR 99 ..... [2.290], [2.300] Miles v The Queen (1997) 17 WAR 518 ................................................................. [7.190] Moffa v The Queen (1977) 138 CLR 601 ........................................[9.70], [9.120], [9.160] Molina v Zaknich (2001) 24 WAR 562 ....................................................... [13.40], [13.60] Monteleone v Versperman [2009] WASC 349 ........................................................ [16.100] Moody v French (2008) 36 WAR 393; [2008] WASCA 67 ....................................... [16.70] Mouritz v Western Australia [2006] WASCA 165 ..................................................... [5.160] Mueller v Vigilante (2007) 177 A Crim R 506 ...........................................[13.90], [13.110]

TABLE OF CASES      xiii

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 ......................... [16.120] Murphy v Spencer (2013) 232 A Crim R 74; [2013] WASC 256 ................... [5.50], [6.220] Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26 ...................... [11.20], [11.30]

N Narkle v The State of Western Australia [2011] WASCA 160 .................................. [13.180] Nelson v The Queen [1987] WAR 57 ...................................................................... [7.440] Nicholls v Woods (2000) 118 A Crim R 59; [2000] WASCA 373 ............................. [2.200] Nicholson v The Queen (1994) 76 A Crim R 187 ................................................... [14.65]

O O’Halloran v O’Byrne [1974] WAR 45 .....................................................................[3.50] Olsen v Grain Sorghum Marketing Board; Ex parte Olsen [1962] Qd R 580 ......... [13.100] Orchard v The Queen [2018] QCA 58 .................................................................. [13.130] Osland v The Queen (1998) 197 CLR 316 ........................................ [9.80], [9.90], [9.160], [9.170], [9.250], [10.150] Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30 ........................[13.20], [13.200]

P P (A Child) v The Queen (1997) 94 A Crim R 593 ................................................. [7.370] Pallante v Stadiums Pty Ltd (No 1) (1976) VR 331 ....................................................[5.40] Papadimitropoulos v The Queen (1957) 98 CLR 249 ................................. [6.100], [6.120] Pargin v Kelly [2012] WASC 68 ............................................................................... [2.120] Parker v The Queen (1963) 111 CLR 610 ...........................................[9.10], [9.40], [9.70], [9.80], [9.110], [11.80] Patel v The Queen (2012) 247 CLR 531 ................................................................. [4.360] Pearce v Paskov [1968] WAR 66 .............................................................................. [13.40] Pearce v Stanton [1984] WAR 359 ......................................................................... [13.170] Pearce v The Queen (1998) 194 CLR 610 ..........................................[3.05], [3.50], [3.140] Penny v The Queen [2002] WASCA 235; (2002) 26 WAR 475 ................................ [5.230] Perrin v The Queen [2017] QCA 194 .......................................... [7.410], [7.420], [13.130] Peters v The Queen (1998) 192 CLR 493 ................................................... [7.420], [7.430] Peterson v Fleay (2007) 176 A Crim R 148; [2007] WASC 230 ................................ [15.53] Petty and Maiden v The Queen (1991) 173 CLR 95 .................................. [2.150], [2.180] Phillips v Carbone (1992) 67 A Crim R 392 ............................................... [3.140], [3.160] Pinkstone v The Queen (2004) 219 CLR 444; [2004] HCA 23 ................................ [15.80] Plenty v Bargain [1999] WASCA 67 ........................................................................ [3.150] Postiglione v The Queen (1997) 189 CLR 295 ........................................... [16.20], [16.90] Potter v The Queen (1981) 4 A Crim R 305 ........................................................... [7.340] Power v Huffa (1976) 14 SASR 337 ...................................................................... [13.200] Pratt v The Queen (2000) 112 A Crim R 70 ........................................................... [7.190] Preston v Parker [2010] QDC 264 ........................................................................... [13.60]

Q Quaid v The State of Western Australia [2013] WASC 228 ........................................ [2.290] Queen, The v Crabbe (1985) 156 CLR 464 ............................................................. [4.285] Queen, The v Miles (1890) 24 QBD 423 ................................................................. [3.140]

xiv      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

R R v AAP [2012] QCA 104 ...................................................................................... [15.60] R v ALH [2003] VSCA 129; (2003) 6 VR 276 ........................................................ [12.160] R v Ablitt [2009] QCA 45 ....................................................................................... [15.90] R v Allwood [1997] QCA 257 ................................................................................ [10.80] R v Anderson [2000] 2 Qd R 393; [2000] QCA 257 .................................. [7.450], [7.470] R v Angus [2000] QCA 29 ........................................................................................[7.80] R v Anunga (1976) 11 ALR 412 .............................................................................. [2.190] R v Apostilides [1984] HCA 38 .................................................................................[3.10] R v Ashwell (1885) 16 QBD 190 ...............................................................................[7.90] R v B and P [1999] 1 Qd R 296; [1998] QCA 45 ................................................... [15.55] R v BAS [2005] QCA 97 .................................................. [6.110], [6.120], [6.210], [6.300] R v BBD [2007] 1 Qd R 478; [2006] QCA 441 ......................................... [4.170], [11.70] R v Bailey [1924] QWN 38 ......................................................................................[7.40] R v Barbeler [1977] Qd R 80 .................................................................................. [14.20] R v Barker (1924) NZLR 865 .................................................................... [14.63], [14.65] R v Barlow (1997) 188 CLR 1 .........................................................[1.40], [15.30], [15.68] R v Basacar [2006] QCA 352 .................................................................................. [6.110] R v Batt [2005] QCA 444 ....................................................................................... [12.40] R v Beck [1990] 1 Qd R 30 .................................................................................... [15.53] R v Bedelph (1980) 1 A Crim R 445 ........................................................... [9.70], [9.140] R v Betts [2011] QCA 244 ...................................................................................... [5.160] R v Bingapore (1975) 11 SASR 469 ........................................................................ [4.120] R v Bishop [2010] QCA 375 ................................................................................... [7.290] R v Blaue [1975] 1 WLR 1411 ................................................................... [4.120], [4.140] R v Blayney [2003] SASC 405 ..................................................................................[6.60] R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206 ....................................... [3.10], [10.40] R v Bridges [1986] 2 Qd R 391 ................................................................................[8.60] R v Brougham (1986) 43 SASR 187 ....................................................................... [7.210] R v Brown [2009] QCA 342 ................................................................................... [5.170] R v Button (2002) 54 NSWLR 455; 129 A Crim R 242 ...........................[7.210], [15.110] R v Campbell [2009] QDC 61 ................................................................................ [11.70] R v Carlton [2018] QCA 294 ...................................................................[13.210], [14.20] R v Carroll (2002) 213 CLR 635 ..............................................................................[3.70] R v Casey [2014] QDC 151 ....................................................................... [2.150], [2.190] R v Chan-​Fook [1994] 2 All ER 552 ........................................................................[5.80] R v Chellingworth [1954] QWN 35 ..............................................[14.60], [14.63], [14.68] R v Chhay (1994) 72 A Crim R 1 ........................................................................... [9.110] R v Chivers [1993] 1 Qd R 432 .............................................................................. [16.50] R v Chua [2003] QCA 41 ....................................................................................... [15.90] R v Clare [1994] 2 Qd R 619 ...................................................................................[8.60] R v Clark (2007) 171 A Crim R 532; [2007] QCA 168 ..............................[4.170], [4.210], [5.160], [11.70] R v Clarkson [1971] 3 All ER 344 .......................................................................... [15.53] R v Clough [2011] 2 Qd R 222; 200 A Crim R 140; [2010] QCA 120 ................. [12.140] R v Coney (1882) 8 QBD 534 ................................................................................ [15.53] R v Cook (1979) 2 A Crim R 151 .......................................................................... [4.130] R v Corbett [1903] St R Qd 246 .......................................................................... [12.120] R v Corcoran (2000) 111 A Crim R 126; [2000] QCA 114 .....................[10.110], [10.140] R v Corrigan [1994] 2 Qd R 415 ........................................................................... [16.70]

TABLE OF CASES      xv

R v Costi [2001] QCA 404 ................................................................................... [16.130] R v Crossman (2011) 209 A Crim R 558 ................................................................ [5.150] R v Cutts [2005] QCA 306 .......................................................................................[6.70] R v Da Costa [2005] QCA 385 .................................................................. [5.170], [15.55] R v Dabelstein [1966] Qd R 411 ............................................................... [4.210], [11.70] R v Dale [1969] QWN 30 ........................................................................................[5.30] R v Dayle [1974] 1 WLR 181 ................................................................................. [7.200] R v De Silva (2007) 176 A Crim R 238; [2007] QCA 301 ......................... [14.65], [14.68] R v De Simoni (1980) 147 CLR 383 ...................................................................... [7.170] R v Dibble; Ex parte Attorney-​General (2014) 238 A Crim R 511; [2014] QCA 008 ................................................................................................ [3.140] R v Dillon; Ex parte Attorney General (Qld) [2015] QCA 155 ................................ [7.420] R v Donnelly (1920) 14 QJPR 62 ........................................................................... [3.140] R v Donnelly [1970] NZLR 980 .......................................................................... [14.100] R v Dudley and Stevens (1844) 14 QBD 273 DC .................................................... [9.240] R v Duong [2015] QCA 170 ..................................................................... [8.40], [13.210] R v EI [2009] QCA 177 ........................................................................................ [12.160] R v Eagleton (1855) 169 ER 766 ............................................................................ [14.63] R v Edwards [1956] QWN 16 ........................................................[14.60], [14.63], [14.68] R v Ellem (No 2) [1995] 2 Qd R 549 ..................................................................... [10.90] R v Ellhusseini [1998] 2 Qd R 442 ......................................................................... [8.130] R v Emelio [2012] QCA 111 ................................................................................ [15.100] R v English (1993) 68 A Crim R 96 ...................................................................... [14.100] R v F; Ex parte Attorney-​General (Qld) [2004] 1 Qd R 162; [2003] QCA 70 .................................................................................................. [15.70] R v Falconer (1990) 171 CLR 30; [1990] HCA 49 ....................... [11.20], [11.30], [12.100] R v Foy [1960] Qd R 225 ....................................................................................... [12.40] R v Francis [1993] Qd R 300 ....................................................................................[6.60] R v GAM [2011] QCA 288 ...........................................................[2.150], [2.200], [2.220] R v GV [2006] QCA 394 ............................................................................. [9.20], [9.240] R v GW [2015] NSWDC 52 ................................................................................ [12.160] R v George [1956] Crim LR 52 .............................................................................. [6.210] R v George [2013] QCA 267; [2014] 2 Qd R 150 ................................................ [12.130] R v Georgiou [2002] QCA 206; (2002) 131 A Crim R 150 .................................... [4.310] R v Ghosh [1982] QB 1053 .................................................................................... [7.420] R v Gordon; Ex parte Attorney-​General [1975] Qd R 301 ...........................[3.05], [3.130], [3.140], [3.160] R v Gould and Barnes [1960] Qd R 283 ...................................... [4.300], [4.310], [13.190] R v Gray (1998) 98 A Crim R 589 ........................................................................ [10.120] R v Griffen (2002) 54 NSWLR 455 ...................................................................... [15.110] R v Hagarty [2001] QCA 558 ................................................................................. [10.90] R v Hallet [1969] SASR 141 ................................................................................... [4.150] R v Hammond [1997] 2 Qd R 195 ....................................................................... [16.120] R v Hawke [2016] QCA 144 ..................................................................... [15.60], [15.70] R v Hay (1925) 19 QJPR 44 ................................................................................... [7.180] R v Hay; Ex parte Patane [1981] Qd R 152 ...............................................................[3.30] R v Hayes [2008] QCA 371 .................................................................................... [6.250] R v Henderson [2014] QCA 12 .............................................................................. [7.470] R v Hennessy [1989] 2 All ER 9 ............................................................................. [12.40] R v Hind & Harwood [1995] QCA 202; (1995) 80 A Crim R 105 ...............[4.300], [5.90], [5.150], [6.250]

xvi      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

R v Hoar (1981) 148 CLR 32 .................................................................... [15.10], [15.20] R v Hodges (1986) 19 A Crim R 129 ........................................................ [12.50], [12.80] R v Holmes [1960] WAR 122 ................................................................................. [12.20] R v Horry [1952] NZLR 111 ...................................................................................[4.60] R v Houghton (2004) 144 A Crim R 343 ............................................................... [4.210] R v Howe (1958) 100 CLR 448 ............................................................................ [10.140] R v Hull (No 2) [1902] St R Qd 53 ........................................................... [3.130], [3.140] R v Hutchinson (1784) 1 Leach 339; 168 ER 273 ...................................... [7.190], [7.200] R v Hutton (1991) 56 A Crim R 211 ...................................................................... [15.70] R v Hyatt [2019] QCA 106 ..................................................................................... [7.190] R v Instan [1893] 1 QB 450 .................................................................................... [4.180] R v JA (2007) 174 A Crim R 151; [2007] ACTSC 51 ............................................ [12.160] R v Jeffrey (2002) 136 A Crim R 7; [2002] QCA 429 ..............................[13.110], [13.120] R v Jeffrey [2003] 2 Qd R 306; [1997] QCA 154 ....................................... [15.55], [15.60] R v Jerome [1964] Qd R 595 .................................................................................. [7.170] R v Jervis [1993] 1 Qd R 643 ................................................................................. [5.170] R v Johns [1978] 1 NSWLR 282 .......................................................................... [15.110] R v Johnston [1973] Qd R 303 ...................................................................... [7.30], [7.50] R v Joinbee [2013] QCA 246 .................................................................................. [7.520] R v Jones [1898] 1 QB 119 ..................................................................................... [7.440] R v Jones (2011) 209 A Crim R 379; [2011] QCA 19 ................................ [6.210], [6.300] R v Jovic (2008) 187 A Crim R 579 ..........................................................................[8.60] R v Julian (1998) 100 A Crim R 430 ..................................................................... [10.110] R v Keenan (2009) 236 CLR 397; [2009] HCA 1 ................................................... [15.58] R v Keith (1934) St R Qd 155 .............................................................................. [10.110] R v Kemp [1957] 1 QB 399 .................................................................................... [12.40] R v Kinash [1982] Qd R 648 .................................................................................. [4.130] R v Kusu (1980) 4 A Crim R 72 ........................................................................... [12.120] R v Lacey; Ex parte Attorney-​General (Qld) [2009] QCA 274 ................................. [9.240] R v Laurie (1986) 23 A Crim R 219 ....................................................................... [7.420] R v Law; Ex parte Attorney General (Qld) [1996] 2 Qd R 63 ................................ [16.100] R v Leeson (1968) 52 Cr App Rep 185 ................................................................... [6.210] R v Lenahan [2009] QCA 187 ................................................................................ [7.470] R v Libke [2006] QCA 242 ..................................................................................... [6.270] R v Licciardello [2017] QCA 286 ............................................................................ [15.55] R v Little (2013) 231 A Crim R 145; [2013] QCA 223 ........................................... [6.270] R v Lloyd [1967] 1 QB 175 .................................................................................... [9.120] R v Lobston [1983] 2 Qd R 720 ............................................................................. [5.150] R v Lockwood; Ex parte Attorney-​General [1981] Qd R 209 ...........[5.90], [6.250], [7.520] R v Lopuszynski [1971] QWN 33 ........................................................................... [15.40] R v Lovell [1999] 2 Qd R 98 .................................................................................. [16.60] R v Lowrie and Ross [2000] 2 Qd R 529 ............................................................... [15.55] R v M (1977) 16 SASR 589 .................................................................................. [12.160] R v Macdonald and Macdonald [1904] St R Qd 151 .................................. [4.180], [11.70] R v Makary [2018] QCA 257 ............................................................................... [13.180] R v Martyr [1962] Qd R 398 ..................................................................... [4.350], [11.60] R v Masters (1983) 24 A Crim R 65 ..................................................................... [10.120] R v McBride [2008] QCA 412 .................................................................. [6.210], [6.300] R v McCallum [2013] QCA 254 ....................................................[6.210], [6.300], [11.50] R v McCauley [2009] QDC 298 .................................................................... [9.30], [9.70] R v Melville (2003) 27 WAR 224; [2003] WASCA 124 ........................................... [3.150]

TABLE OF CASES      xvii

R v Menniti [1985] 1 Qd R 520 ........................................................................... [15.100] R v Messent [2011] QCA 125 ............................................................................... [10.120] R v Middleton (1873) LR 2 CCR 38 .......................................................................[7.90] R v Miller [2009] QCA 11; 2 Qd R 86 ...............................................[9.10], [9.20], [9.40], [9.80], [9.90], [9.110], [9.120], [9.130], [9.170], [9.250] R v Mills (1977) 16 SASR 581 ................................................................................ [15.90] R v Milloy [1993] 1 QD R 298 .............................................................................. [12.40] R v Mobilio (1990) 50 A Crim R 170 ........................................................ [6.100], [6.120] R v Moore (1908) 10 WALR 64 ............................................................................. [12.80] R v Morris [2010] QCA 315 ................................................................................... [5.250] R v Motlop [2013] QCA 301 ....................................................................................[6.90] R v Mrzljak [2005] 1 Qd R 308; [2004] QCA 420; (2004) 152 A Crim R 315 ...............................................................................[6.150], [13.180] R v Muratovic [1967] Qd R 15 ............................................................. [10.100], [10.110], [10.120], [10.140] R v Mursic [1980] Qd R 482 .................................................................................. [12.40] R v Naidu [2008] QCA 130 .................................................................................... [7.470] R v O’Loughlin [2011] QCA 123 .............................................................[6.150], [12.150] R v Oberbillig [1989] 1 Qd R 342 .......................................................................... [15.70] R v Orchard [2018] QCA 58 .................................................................................. [7.420] R v Osborne [1987] 1 Qd R 96 .............................................................................. [5.190] R v P [2000] Qd R 401; [1999] QCA 411 .............................................................. [6.250] R v PS Shaw [1995] 2 Qd R 97 ................................................................................[6.90] R v Pacino (1998) 105 A Crim R 309 ................................................................... [13.190] R v Page [1933] VLR 351 ....................................................................................... [14.68] R v Pagett (1983) 76 Cr App R 279 ........................................................................ [4.160] R v Patel (2012) 247 CLR 531 ................................................................................ [4.200] R v Patel (No 7) [2013] QSC 65 ............................................................................. [4.200] R v Perrin [2017] QCA 194 .................................................................................... [7.420] R v Pickett [1972] Qd R 425 .................................................................................. [10.40] R v Ping (2006) 2 Qd R 69; [2005] QCA 472 ........................................................ [5.200] R v Pollard [1962] QWN 13 ...................................................................... [13.80], [13.90] R v Pollock [2009] QCA 268 ....................................................................... [9.10], [9.120] R v Porter (1933) 55 CLR 182 ....................................................................[3.10], [12.40], [12.70], [12.90] R v Prow [1990] 1 Qd R 64; (1989) 42 A Crim R 343 ...........................[10.100], [10.130] R v Pryor (2001) 124 A Crim R 22; [2001] QCA 341 ............................................. [6.110] R v Purnell [2012] QSC 60 ..................................................................................... [2.230] R v Quaile [1988] 2 Qd R 103 ............................................................................... [8.130] R v Quick; R v Paddison [1973] QB 910 ................................................................ [12.40] R v Quy (1905) 7 WALR 268 ............................................................................... [12.160] R v Raabe (1984) 14 A Crim R 381 .........................................................................[5.80] R v Rae [2006] QCA 207 .............................................................................. [9.20], [9.70] R v Redenbach (1991) 52 A Crim R 95 ............................................................... [16.120] R v Reid (2006) 162 A Crim R 377; [2006] QCA 202; [2007] 1 Qd R 64 ............. [4.210], [4.260], [7.40], [5.150], [11.70] R v Rigney (1996) 86 A Crim R 9 ......................................................................... [7.290] R v Robinson [1915] 113 LT 379 ........................................................................... [14.68] R v Rolfe (1952) 36 Cr App R 4 ............................................................................ [6.200]

xviii      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

R v Rolph [1962] Qd R 262 .................................................................................. [9.200] R v Rope [2010] QCA 194 ......................................................................[6.150], [13.180] R v Rosenberger; Ex parte Attorney-​General [1995] 1 Qd R 677 ......................... [16.120] R v Roughan (2007) 179 A Crim R 389; [2007] QCA 443 ..................................... [15.90] R v S [1996] 1 Qd R 559; [1995] QCA 328 ............................................................ [6.250] R v SAX [2006] QCA 397 ........................................................................................[6.60] R v Saba [2013] QCA 275 ...................................................................................... [7.460] R v Sabato and Hickey (1987) 31 A Crim R 72 ...................................................... [8.120] R v Sailor [2012] QCA 246 .................................................................................... [2.190] R v Sanderson [2015] QDC 106 ............................................................................. [3.140] R v Sargeant [1997] Crim LR 50 ............................................................................ [6.210] R v Scott [1975] AC 819 ......................................................................................... [7.430] R v Secretary (1996) 107 NTR 1; (1996) 86 A Crim R 119 .........................[5.30], [9.160], [10.80], [10.110], [10.140] R v Shales [2005] QCA 192 .................................................................................... [15.90] R v Sheppard [2000] QCA 57 ................................................................................. [3.140] R v Shipley (2014) 247 A Crim R 71 ........................................................................[8.60] R v Singh [2012] QCA 130 .................................................................................. [13.150] R v Smith (1987) 44 SASR 587 ............................................................................ [16.110] R v Smythe [1997] 2 Qd R 223 ..................................................................... [8.70], [8.90] R v Solway [1984] 2 Qd R 75 ...................................................................................[8.60] R v Standley (1996) 90 A Crim R 67 ...................................................................... [7.190] R v Starr [1999] WASCA 119 .................................................................................. [5.230] R v Steindl [2002] 2 Qd R 542; (2001) 124 A Crim R 520; [2001] QCA 434 .......................................................... [4.140], [4.350], [5.160], [11.60] R v Stevens [1989] 2 Qd R 386 .....................................................[9.140], [9.170], [9.250] R v Stevens [2004] QCA 99 .................................................................................... [11.70] R v Stevens [2014] QCA 286 ......................................................................... [7.40], [7.80] R v Stone & Dobinson [1977] QB 354 ................................................................... [4.180] R v Swaffield (1998) 192 CLR 159 ......................................................................... [2.150] R v T (1996) 91 A Crim R 152 .................................................................. [6.250], [7.520] R v Tabe (2003) 139 A Crim R 417; [2003] QCA 356 ..............................................[8.40] R v Taiters [1997] 1 Qd R 333; [1996] QCA 232 ...........................[4.350], [11.20], [11.50] R v Taylor [I859] 1 F & F 511 ................................................................................. [14.68] R v Thomas (1981) 6 A Crim R 66 ...........................................................................[8.60] R v Thomas [2001] QSC 298 .................................................................................. [11.70] R v Tilley (1991) 53 A Crim R 1 .......................................................................... [16.130] R v Todd (1977) 6 A Crim R 105 .............................................................................[8.60] R v Toomath [2009] QCA 369 ..................................................................... [9.50], [9.180] R v Tracey [1999] WASCA 77; (1999) 106 A Crim R 475 .......................... [5.220], [5.230] R v Tran; Ex parte Attorney-​General (Qld) (2002) 128 A Crim R 1; [2002] QCA 21 ................................................................................................ [16.140] R v Tranby (1991) 52 A Crim R 228 ....................................................................... [5.150] R v Tricklebank [1994] 1 Qd R 330 ........................................................... [3.140], [3.160] R v Trieu [2008] QCA 28 ....................................................................................... [4.300] R v Troop [2009] QCA 176 .................................................................................... [7.290] R v Van Den Bemd (1994) 179 CLR 137; [1994] HCA 56 ...................................... [11.60] R v Viers [1983] 2 Qd R 1 .................................................................[3.10], [3.50], [3.130] R v Von Snarski (2001) 121 A Crim R 205; [2001] QCA 71 ...............[8.70], [8.90], [8.100] R v Waigana (2012) 225 A Crim R 20 .......................................................................[4.40] R v Waine [2006] 1 Qd R 458; [2005] QCA 312 ......................................[13.90], [13.110]

TABLE OF CASES      xix

R v Walker [2001] WADC 299 ................................................................................ [7.310] R v Walsh [1984] 2 Qd R 407 ................................................................................. [13.50] R v Warneminde [1978] Qd R 371 ...........................................................................[8.60] R v Warner [1980] Qd R 207 .................................................................................. [9.240] R v Watson [2009] QCA 279 .................................................................................. [4.220] R v Waugh [I909] VLR 379 ..................................................................................... [14.68] R v White [1910] 2 KB 124 .................................................................................. [14.100] R v White (2002) 135 A Crim R 346; [2002] QCA 477 ............................... [7.40], [7.420] R v Whitworth [1989] 1 Qd R 437 ......................................................................... [9.200] R v Williams (1878) 14 Cox CC 59 ......................................................................... [7.190] R v Williams [1965] Qd R 86 ........................................................[14.63], [14.65], [14.68] R v Williams (1986) 21 A Crim R 460 ......................................................[13.60], [13.120] R v Williams [1988] 1 Qd R 289 ............................................................................. [7.290] R v Willmot (No 2) [1985] 2 Qd R 413; (1985) 18 A Crim R 42 .....[4.250], [7.40], [14.30] R v Winchester (2011) 222 A Crim R 1; [2014] 1 Qd R 44 .................................... [6.110] R v Winston (1994) 74 A Crim R 312 .................................................................... [15.90] R v Witsen (2008) 189 A Crim R 147; [2008] QCA 316 ......................................... [15.60] R v Woodward [1970] QWN 30 ............................................................................. [5.190] R v Woollin [1999] 1 AC 82 .................................................................................... [4.260] R v Zaphir [1978] Qd R 151 .................................................................................. [5.220] R v Zischke [1983] 1 Qd R 240 .............................................................................. [7.540] R (a child) v Whitty (1993) 66 A Crim R 462 ....................................................... [12.160] RP v The Queen (2016) 259 CLR 641 ................................................................. [12.160] Randle v The Queen (1995) 81 A Crim R 113 ..................................................... [10.140] Reg v Hill [1986] 1 SCR 313 .................................................................................. [9.130] Roberts v Western Australia (2005) 29 WAR 445; [2005] WASCA 37 ..................... [13.130] Roberts v Western Australia [2011] WASC 118 ........................................................ [2.300] Robinson v Smith [2005] WASC 99 ............................................................. [5.80], [5.280] Roche v The Queen [1988] WAR 278 ......................................................................[9.30] Royall v The Queen (1991) 172 CLR 378 ......................................... [4.70], [4.80], [4.100], [4.285], [4.400] Rozsa v Samuels [1969] SASR 205 ............................................................................[5.30] Russell v Smith [1958] 1 QB 27 ................................................................................[7.90] Ryan v The Queen (2001) 206 CLR 267 ................................................................ [16.60]

S SV v State of Western Australia [2014] WASCA 123 ................................................. [3.150] Saibu v The Queen (1993) 10 WAR 279 ....................................................... [6.60], [6.130] Sawiris v Scott [1979] WAR 39 ............................................................................... [7.120] Scatchard v The Queen (1987) 27 A Crim R 136 .............................[5.80], [5.280], [11.70] Schmidt v Western Australia [2013] WASCA 201 ..................................................... [11.50] Scook v The Queen (2008) 185 A Crim R 164; [2008] WASCA 114 ..................... [16.100] Sgarlata v State of Western Australia (2015) 49 WAR 176; [2015] WASCA 215 ............................................................................... [8.60], [13.200] Siganto v The Queen (1998) 194 CLR 656 ............................................................. [16.70] Sims v Elmer [2019] TASSC 21 ............................................................................. [13.180] Stapleton v Queensland Police Service [2019] QDC 190 ....................................... [12.140] State of Queensland v B [2008] QSC 231 ................................................................ [4.190] State of Western Australia, The v Carkeek [2016] WASC 201 .................................... [4.350] State of Western Australia, The v Gibson [2014] WASC 240 ...................................... [2.240]

xx      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

State of   Western Australia, The v Herbert [2017] WASC 101 ................................. [12.140] State of   Western Australia, The v Marotta [2018] WASC 329 .................................... [12.80] State of   Western Australia, The v Siddique [No 2] [2016] WASC 358 ....................... [12.60] State of   Western Australia, The v Yarran [2014] WASC 1 .......................................... [2.240] Stingel v The Queen (1990) 171 CLR 312 ..........................................[9.60], [9.70], [9.90], [9.100], [9.120], [9.130], [9.140], [9.170], [9.250] Strickland (A Pseudonym) v Commonwealth Director of Public Prosecutions (2018) 272 A Crim R 69 ................................................................ [2.150] Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 .......... [1.70], [2.250], [3.10], [3.20], [9.20], [10.60], [11.10], [11.70] Stuart v The Queen (1974) 134 CLR 426 ................................................... [4.300], [4.310]

T TB v The State of Western Australia [2015] WASCA 212 ...............................[4.70], [4.100], [4.350], [11.50] TLM v Western Australia [2009] WASCA 106 .......................................................... [16.90] Tabe v The Queen (2005) 225 CLR 418; [2005] HCA 59 .......................... [8.60], [13.220] Thabo Meli v The Queen [1954] 1 All ER 373 ..........................................................[1.60] Thomas v The Queen (1960) 102 CLR 584; [1960] ALR 233 ............................... [12.130] Thow v Campbell [1997] 2 Qd R 324 ........................................................... [8.70], [8.90] Timbu Kolian v The Queen (1968) 119 CLR 47 ..................................................... [11.20] Tough v Kay (1996) 87 A Crim R 278 ......................................................... [9.70], [9.140] Tracey v The Queen [1999] WASCA 77; (1999) 20 WAR 555 ................................. [5.230] Turberville v Savage (1669) 86 ER 684 ......................................................................[5.30] Turner v The Queen [2004] WASCA 127 ................................................................ [4.260]

U Ugle v The Queen (1989) 43 A Crim R 63 ............................................................. [7.130]

V Va v The State of Western Australia [2014] WASC 74 ............................................... [2.290] Van Den Berg v The Queen (1983) 12 A Crim R 113 ................................ [7.190], [7.200] Van Den Hoek v The Queen (1986) 161 CLR 158; [1986] HCA 76 .....[9.40], [9.50], [9.80] Varley v The Queen (1976) 12 ALR 347 ..................................................... [15.60], [15.65] Veen v The Queen (No 2) (1988) 164 CLR 465 ................ [16.20], [16.25], [16.50], [16.60] Verhoeven v The Queen (1998) 101 A Crim R 24 ........................... [9.90], [9.140], [9.170], [9.180], [9.250] Vines v The Queen (1993) 11 WAR 517 ...................................................................[7.40]

W Wade v The Queen [2001] WASCA 252 .................................................................. [16.30] Wagenaar v The Queen [2000] WASCA 325 ..............................................................[6.70] Walden v Hensler (1987) 29 A Crim R 85 .................................................. [13.40], [13.90] Wallis v Lane [1964] VR 293 .....................................................................................[7.50]

TABLE OF CASES      xxi

Webb v The Queen (1994) 13 WAR 257 ................................................................. [2.190] Weggers v The State of Western Australia [2014] WASCA 57 .................................... [14.70] Welham v DPP [1961] AC 103 ................................................................................ [7.450] Western Australia v BLM (2009) 256 ALR 129; [2009] WASCA 88 .......................... [16.50] Western Australia v Brown [No 3] [2013] WASC 349 .....................[12.50], [12.60], [12.80] Western Australia v Corbett [2015] WASC 130 ........................................................ [2.240] Western Australia v Dick (2006) 161 A Crim R 271 ................................................ [7.210] Western Australia v Lauchlan [2005] WASC 266 ...................................................... [15.90] Western Australia v Majok (2005) 152 A Crim R 25; [2005] WASC 13 .................... [7.200] Western Australia v Roberts [2005] WASCA 37 ....................................................... [7.460] Western Australia v The Queen (2007) 33 WAR 483; [2007] WASCA 42 ........ [1.60], [8.60] White v Ridley (1978) 140 CLR 342; [1978] HCA 38 ..............................[15.80], [15.100] Williams v The Queen (1978) 140 CLR 591; [1978] HCA 49 ........................ [2.10], [8.65] Williams v The Queen (1986) 161 CLR 278 .............................................................[2.10] Williams-​Jones v Miller [2017] WASC 276 ..............................................[13.210], [13.220] Williamson v DPP [2001] Qd R 99 ......................................................................... [2.280] Wong v The Queen (2001) 207 CLR 584 ...............................................[16.153], [16.155] Woolmington v DPP [1935] AC 462 ................................................. [1.70], [2.250], [3.10], [3.20], [3.130], [9.20], [10.60], [11.10], [13.30], [13.150], [14.20] Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1; 203 A Crim R 339 .......................................[2.170], [2.180], [2.240]

Z Zaburoni v The Queen [2016] HCA 12; 256 CLR 482 ..............................[4.260], [5.190], [5.280], [7.40], [14.30] Zecevic v DPP (1987) 162 CLR 645; (1987) 25 A Crim R 163 ...............[10.110], [10.140] Zimmerman v Western Australia [2009] WASCA 211 .................................. [16.30], [16.70]

TABLE OF STATUTES COMMONWEALTH Crimes Act 1914 s 86: [7.420] s 86A: [7.420], [7.430] Criminal Code Act 1995: [1.20], [8.10] Customs Act 1901: [8.10] Native Title Act 1993: [13.90] s 211: [13.90] Therapeutic Goods Act 1989: [13.200]

NEW SOUTH WALES Crimes Act 1900: [1.30]

QUEENSLAND Bail Act 1980: [2.280] s 7: [2.250], [2.260] ss 7(1)–​(2): [2.260] s 7(2): [2.10], [2.280] s 7(5): [2.260], [2.280] s 7(7): [2.10] s 7(1)(b): [2.10] s 7(9): [2.10] s 8(1)(a): [2.270] s 8(1)(b): [2.270], [2.280] s 8(2): [2.280] s 9: [2.250] s 11: [2.250] s 11(1): [2.310] s 11(2): [2.310] s 11(3): [2.310] s 11(5): [2.310] s 13(1): [2.270] s 14: [2.250] s 16(1)(a): [2.280] s 16(1)(b): [2.280] s 16(2): [2.280] s 16(3): [2.280] s 17: [2.250] s 20: [2.310] s 21: [2.310] Criminal Code (Abusive Domestic Relationship Defence and Another Matter) Amendment Act 2009: [4.330]

Criminal Code Act 1899: [1.20], [1.30], [1.40], [1.50], [1.60], [3.80], [3.140], [3.190], [4.70], [4.250], [4.360], [4.380], [5.80], [5.150], [5.170], [5.280], [6.10], [6.110], [6.150], [6.300], [7.30], [7.90], [7.410], [7.420], [7.460], [7.520], [7.540], [7.570], [7.580], [10.80], [11.20], [11.30], [11.40], [11.50], [11.70], [12.20], [12.30], [12.40], [12.60], [12.90], [12.100], [12.110], [12.120], [12.130], [12.140], [12.150], [12.160], [12.170], [12.180], [13.10], [13.20], [13.30], [13.40], [13.50], [13.60], [13.70], [13.80], [13.90], [13.100], [13.110], [13.120], [13.130], [13.150], [13.160], [13.170], [13.180], [13.190], [13.200], [13.210], [13.220], [13.250], [14.10], [14.20], [14.30], [14.40], [15.10], [15.30], [15.50], [15.70], [15.100], [15.110] s 1: [3.50], [4.280], [5.150], [5.190], [6.30], [6.270], [6.300], [7.60], [7.100], [7.270], [7.460], [7.550], [7.580], [8.60], [8.90] s 2: [1.30] s 3(3): [1.100] s 3(5): [1.100] s 4: [14.40], [14.60], [14.110] s 4(1): [4.380] s 4(2): [14.65], [14.90], [14.110] s 4(3): [14.100], [14.110] s 5: [1.30] s 6: [6.30] s 6(2): [6.30], [6.250] s 7: [15.100] s 7(1): [15.68] s 7(1)(a): [15.30], [15.40] s 7(1)(b): [15.30], [15.50] s 7(1)(c): [15.30], [15.50] s 7(1)(d): [15.30], [15.70] s 7(4): [15.30], [15.80] s 8: [15.58], [15.60], [15.68], [15.70], [15.100] s 10: [15.30] s 10A: [15.30], [15.60] s 16: [3.130], [3.150], [3.160], [3.190] s 17: [3.20], [3.50], [3.60], [3.70], [3.90], [3.170] s 22: [13.40]

xxiv      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Criminal Code Act 1899 — cont s 22(1): [13.20] s 22(2): [7.420], [13.30] s 22(3): [13.20], [13.140] s 22(4): [13.140] s 23: [1.90], [4.370], [5.160], [12.100] s 23(1): [4.340], [4.350], [4.360], [5.160], [11.70], [13.20] s 23(1)(a): [4.20], [11.20], [11.30], [11.90] s 23(1)(b): [4.20], [4.370], [11.40], [11.50], [11.90] s 23(1A): [4.140], [4.350], [5.160], [11.60], [11.90] s 23(2): [1.60], [4.320], [5.50], [6.140], [11.80], [11.90] s 23(3): [11.80], [11.90] s 24: [5.90], [6.250], [8.40], [9.240] s 25: [4.20], [9.240], [9.250], [9.260], [9.310] s 27: [4.20], [12.140] s 27(1): [9.200] s 28(2): [12.140] s 29(1): [12.160], [12.170] s 29(2): [12.170] s 31: [9.300], [9.310] s 31(1)(c): [9.270] s 31(1)(d): [9.270], [9.290] s 31(1)(d)(ii): [9.290] s 31(2): [9.270] s 60A: [15.115] s 60B: [15.115] s 60C: [15.115] s 61(1)(a): [3.80] s 61(2A): [15.115] s 80: [3.80] s 87(1B): [15.115] s 92A(4A): [15.115] s 119B: [3.90] s 120: [3.90] s 121: [3.90] s 122: [3.90] s 123: [3.90] s 123A: [3.90] s 124: [3.90] s 124(2): [3.80] s 125: [3.90] s 126: [3.90] s 127: [3.90] s 128: [3.90] s 129: [3.90]

s 130: [3.90] s 131: [3.90], [15.20] s 131(2): [3.80] s 132: [3.90], [15.20] s 133: [3.90] s 136: [3.90] s 137: [2.70], [3.90] s 139: [3.90] s 140: [3.90] s 140(2): [15.115] s 208(4)(b): [6.270] s 210: [6.250], [6.300] s 210(4B): [15.115] s 210(5): [6.250], [6.300] s 210(5A): [6.250] s 210(6): [6.250] s 213(3)(a): [3.80] s 215: [6.250], [6.300] s 215(3): [3.80] s 215(5): [6.250], [6.300] s 215(5A): [6.250] s 216: [6.270], [6.300] s 216(1): [6.270] s 216(2): [6.270] s 216(3): [6.270] ss 216(3)(a)–​(b): [6.80] s 216(3A): [6.270] s 216(4): [6.300] s 216(4)(a): [6.270] s 216(4)(b): [6.270] s 219(3)(a): [3.80] s 221: [15.20] s 222: [6.250] s 222(1)(b): [3.80] s 229: [6.250] s 229B(1): [3.80] s 245: [5.10], [5.50], [5.70], [5.130], [5.280], [6.200], [6.300], [10.80] s 245(2): [5.20], [10.80] s 246: [5.10], [5.70], [5.130], [5.280], [6.200], [6.300], [10.80] s 246(1): [5.60] s 246(2): [5.60] s 249: [2.10], [2.50] s 252: [2.50] s 253: [2.50] s 254: [2.10], [2.90] s 255: [2.50] s 255(2): [2.10] s 257(1): [2.90] s 257(2): [2.90]

TABLE OF STATUTES      xxv

Criminal Code Act 1899 — cont ss 257–​258: [2.10], [2.90] s 258(1): [2.90] s 258(2): [2.90] s 260: [2.90] s 266: [2.70], [2.90] s 268: [9.40], [9.120], [9.310], [10.100] s 268(4): [9.140] s 269: [1.90], [5.60], [9.10], [9.20], [9.190], [9.310] s 269(1): [9.20], [9.30], [9.40], [9.110], [9.180], [9.310] s 270: [9.10] s 271: [1.90], [5.60], [10.40], [10.80] s 271(1): [10.20], [10.40], [10.60], [10.80], [10.90], [10.100], [10.120], [10.130], [10.140], [10.160], [10.170] s 271(2): [10.20], [10.40], [10.60], [10.80], [10.100], [10.110], [10.120], [10.130], [10.140], [10.160], [10.170] ss 271–​273: [4.20] s 272: [1.90], [10.40], [10.60], [10.80], [10.100], [10.110], [10.120], [10.130], [10.140], [10.160], [10.170] s 272(1): [10.20], [10.40], [10.60], [10.80], [10.110], [10.120], [10.130], [10.140], [10.170] s 272(2): [10.20], [10.40], [10.60], [10.80], [10.110], [10.120], [10.130], [10.140], [10.170] s 273: [10.20], [10.40], [10.60], [10.160], [10.170] s 282: [9.240] s 285: [4.180], [11.70] ss 285–​290: [4.170], [4.340], [4.360], [4.400], [5.80], [5.160] s 286: [4.170], [4.190], [11.70] s 288: [4.200], [11.70] s 289: [4.170], [4.210], [5.160], [11.70], [13.190] s 290: [4.220], [11.70] s 291: [4.20], [4.320], [9.10] s 292: [4.40], [4.400] s 293: [4.30], [4.70], [4.400] s 295: [4.100] ss 295–​298: [4.90] s 300: [4.10], [14.10] s 302: [1.60], [3.80], [4.20], [4.400] s 302(1)(a): [4.250], [4.270], [4.280] s 302(1)(aa): [4.285] s 302(1)(b): [4.290], [4.300]

ss 302(1)(c)–​(e): [4.290] s 302(2): [4.270] s 302(5): [15.115] s 303: [1.60], [3.80], [4.20], [4.230], [4.320], [10.60] s 303(2): [15.115] s 304: [4.330], [9.10], [9.20], [9.40], [9.110], [9.120], [9.150], [9.160], [9.180], [9.190], [9.310] s 304(2): [9.140] s 304(7): [9.140], [9.160], [9.170] s 304(8): [9.150], [9.170] s 304(9): [9.20] s 304A: [4.330], [9.10], [9.20], [9.200] s 304A(1): [9.220], [9.310] s 304A(2): [9.310] s 304B: [4.330], [9.10] s 304B(1): [9.10] s 305(1): [3.80] s 305(5): [15.115] s 306: [4.380], [14.10] s 306(1): [3.80] s 307(1): [3.80] s 308: [5.210], [5.220], [5.280] s 310: [3.80] s 311: [3.80] s 313: [4.40] s 313(1): [3.80] s 313(2): [4.40] s 314A: [4.350], [4.370] s 314A(2): [4.370] s 314A(3): [4.370] s 314A(4): [4.370] s 314A(7): [4.370] s 315: [3.80], [5.130], [5.190] s 316: [3.80], [5.130] s 316A: [14.10] s 316A(1): [14.10] s 317: [5.150], [5.190], [5.280] s 317(1): [3.80] s 317A: [5.130] s 317(b): [5.190] s 317(f): [14.10] s 318: [5.130] s 318(1): [3.80] s 319(1): [3.80] s 320: [5.150], [5.160], [5.190], [5.280] s 320A: [5.200], [5.280] s 322: [5.130] s 323: [5.170], [5.280] s 323A: [5.130]

xxvi      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Criminal Code Act 1899 — cont s 327: [5.130] s 328: [5.80], [11.70], [14.10] s 328A: [4.10] s 335: [5.70], [5.80], [5.90], [5.280] s 338A: [5.120] s 339: [5.80] s 339(3): [15.112] s 340: [5.90] s 340(1)(a): [5.90], [5.280] s 340(1)(b): [5.90] ss 340(1)(b)–​(h): [5.90] s 340(1)(c): [5.90] s 340(1)(d): [5.90] s 340(1)(f): [5.90] s 340(1)(g): [5.90] s 340(1)(h): [5.90] ss 340(b)–​(h): [5.280] s 346: [5.120] s 347: [6.30] s 348: [6.50], [6.300] s 348(1): [6.60] s 348(2)(e): [6.100], [6.110] s 348(2)(f): [6.100], [6.110] s 349: [6.20], [6.30], [6.140], [6.300], [14.30], [14.60] s 349(1): [3.80] s 349(2)(a): [6.30] s 349(2)(b): [6.30] s 349(2)(c): [6.30] s 350: [6.30], [14.30] s 351: [6.30] s 352: [6.300] s 352(1)(a): [6.180], [6.190], [6.210], [6.220], [9.30] s 352(1)(b): [6.180], [6.190], [6.230] s 352(3)(a): [15.112] s 354(3): [15.112] s 359: [5.30], [5.210], [5.220], [5.280] s 359(2): [2.280] s 359A: [5.250] s 359B: [5.250], [5.280] s 359B(a): [5.250] s 359B(b): [5.250] ss 359B(c)(i)–​(vii): [5.250] s 359B(d)(i): [5.250] s 359B(d)(ii): [5.250] s 359C: [5.250] s 359D: [5.250] s 359E: [5.250], [5.280] s 371(7): [7.40]

s 390: [7.60], [7.100], [7.580] s 391: [3.60], [7.30], [7.80], [7.120] s 391(2): [7.40], [7.580], [13.130] s 391(2)(a): [7.40], [13.130] s 391(2)(b): [7.40] s 391(2)(c): [7.40] s 391(2)(d): [7.40] s 391(2)(e): [7.40] s 391(2)(f): [7.40] s 391(2A): [7.90] s 391(3): [7.40] s 391(4): [7.30] s 391(5): [7.40] s 391(6): [7.50], [7.80] s 391(7): [7.40] s 398: [7.20], [7.120], [13.130], [14.10] s 399: [7.380] s 408: [3.60] s 408A: [7.40], [7.140] s 408C: [7.380], [7.420], [7.430], [7.450], [7.460] s 408C(1): [7.390], [7.460], [11.70] ss 408C(1)(a)–​(c): [7.450] ss 408C(1)(a)–​(h): [7.580] s 408C(1)(b): [7.460] s 408C(1)(c): [7.460] s 408C(1)(d): [7.460] s 408C(1)(f): [7.460] s 408C(1)(h): [7.450] s 408C(3)(a): [7.460] s 408C(3)(b): [7.420] s 408C(3)(d): [7.420] s 408C(3)(e): [7.460] s 408C(3)(f): [7.460] s 409: [7.150] s 411: [7.150] s 411(2): [3.80], [7.150], [15.112] s 412: [7.230] s 412(3): [3.80] s 415(1)(b): [3.80] s 417A(3): [3.80] s 417A(3): [15.112] s 418: [7.270] s 418(1): [7.280] s 418(2): [7.270] s 418(3): [7.280] s 418(4): [7.270] s 419: [7.250], [7.260], [7.290] s 419(1): [7.290], [7.340] s 419(3)(b)(iii): [15.112] s 419(4): [7.350]

TABLE OF STATUTES      xxvii

Criminal Code Act 1899 — cont s 420: [7.290] s 421: [7.250], [7.260] s 421(2): [7.350] s 421(3): [3.80] s 427A: [7.380] s 430: [7.380] s 431: [7.380] s 458: [7.530] s 458(3): [7.530] s 459(1): [7.530] s 461: [7.560], [7.580], [14.63] s 463: [7.560], [7.580] s 467: 7.480] s 467(1): [3.80] s 468: [7.480], [13.50] s 469: [7.480], [7.490], [7.510] s 469(3): [7.530] s 469(5): [7.480] s 469(6): [7.480] s 469A(1): [3.80] s 471: [7.480] s 474: [3.80], [7.480] s 535: [14.90] s 541: [15.10] s 541(1): [15.10] s 542: [15.10] s 542(1): [15.10] s 543(1)(a): [15.20] s 543(1)(b): [15.20] s 543(1)(c): [15.20] s 543(1)(d): [15.20] s 543(1)(e): [15.20] s 543(1)(f): [15.20] s 543(1)(g): [15.20] s 543A(1): [15.20] s 544: [15.90] s 545(1): [15.90] s 545(2): [15.90] s 545(3): [15.90] ss 546(b)–​(e): [2.70] s 549: [2.70] s 550: [2.70] s 552: [2.70] ss 552A–​552B: [1.100] s 552H: [7.20], [7.260], [7.390] s 552BA: [7.20], [7.260], [7.390] s 552BB: [7.20], [7.260], [7.390] s 559C(5): [5.250] s 567(2): [3.40] s 576: [3.50]

s 578(2): [3.50] ss 578(2)–​(4): [3.50] s 581(1): [3.60] ss 583–​584: [14.20] s 604: [3.30] s 613: [12.20] s 645: [12.20] s 647: [12.20] s 668A: [7.420] s 678(1): [3.70] s 678(1)(a): [3.70] s 678A(1): [3.70] s 678A(2): [3.70] s 678A(3): [3.70] s 678A(4): [3.70] s 678B(1): [3.70] s 678B(1)(a): [3.70] ss 678B(1)(a)–​(b): [3.70] s 678B(2): [3.70] s 678B(3): [3.70] s 678B(4): [3.70] s 678C(1): [3.70], [3.90] s 678C(2): [3.70] s 678C(3): [3.90] s 678C(4): [3.90] s 678D(2): [3.70] s 678D(3): [3.70] s 678D(4): [3.70] s 678E(2): [3.90] s 678E(3): [3.90] s 678F(2): [3.70] s 678F(3): [3.70] s 678G(2)(a): [3.90] s 678G(2)(b): [3.90] s 678G(4): [3.90] s 678G(5): [3.90] s 678G(6): [3.90] s 678G(7): [3.90] s 678G(8): [3.90] s 678G(11): [3.90] s 678H(1): [3.90] s 700: [3.30] r 1: [3.60] Ch 4: [1.50] Ch 5, Pt 1: [1.60] Ch 16: [3.90] Ch 61: [3.40] Pt 1: [1.50] Pts 2–​6: [1.50], [1.60] Pt 5, Ch 28: [1.60] Pt 6, Ch 37: [7.380]

xxviii      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Criminal Code Act 1899 — cont Pt 6, Ch 40: [7.380] Pt 8: [1.50] Pt VI: [7.10] Criminal Code Act 1913: [13.150] s 1: [13.40] s 22: [13.20], [13.30], [13.40], [13.100] s 23A: [13.20] s 24: [13.160] s 266: [13.190] s 473: [13.130] Drugs Misuse Act 1986: [1.30], [8.10], [8.60], [8.70], [13.220] s 4: [8.20], [8.50], [8.90], [8.110], [8.120], [8.170] s 5: [8.170] s 5(1): [8.130] s 6: [8.110], [8.170] s 8: [8.65], [8.170] s 8(1): [8.120] s 8(1)(c): [8.20] s 8(1)(e): [8.20] s 8A: [8.170] s 8A(1): [8.140], [8.150] s 8A(3): [8.140], [8.150] s 9: [8.60], [8.65], [8.170] s 9(1)(d): [8.20] s 10: [8.170] s 11: [8.170] s 11(1): [8.70], [8.80], [8.90], [8.100] s 116: [8.60], [8.90] s 129(1)(c): [8.70] s 129(1)(d): [8.40] Drugs Misuse Regulation 1987: [8.10] Sch 1, Pt 1: [8.20], [8.170] Sch 1, Pt 2: [8.20], [8.170] Sch 2: [8.20], [8.170] Sch 3: [8.20], [8.170] Sch 4: [8.20], [8.170] Fauna Conservation Act 1974 s 54: [13.40] Forensic Disability Act 2011: [2.70] Justices Act 1886 s 42: [2.10] s 149: [3.30] s 222: [2.270] Mental Health Act 2000 s 257: [12.20]

Misuse of Drugs Act 1981: [8.30], [8.70], [8.90], [8.140], [8.150], [13.210] s 3: [8.60] s 3(1): [8.110], [8.120] s 4(1): [8.30] s 4(2): [8.30] s 4(3): [8.30] s 4(4): [8.30] s 5(1): [8.90], [8.110] s 5(1)(a): [8.70], [8.100] s 5(1)(b): [8.80], [8.100] s 5(2): [8.80] s 6(1): [8.110] s 6(1)(a): [8.60] s 6(2): [8.60] s 7(1): [8.110], [8.120] s 7(1)(a): [8.60] s 7(2): [8.60], [8.120] s 7A(1): [8.110], [8.120] s 32A(1): [8.130] Sch I: [8.30], [13.210] Sch II: [8.30], [13.210] Penalties and Sentences Act 1992: [16.140] Pt 10: [2.270] s 9(1): [16.10] s 9(1)(e): [16.25] s 9(2): [16.140] s 9(2)(g): [16.30], [16.40] s 9(2)(i): [16.40] s 9(3): [16.140] s 9(9A): [16.120] s 10: [2.270], [16.30], [16.40] s 11: [16.60] s 13(1): [16.70] s 13(2): [16.70] s 13(3): [16.70] s 13(4): [16.70] s 13(5): [16.70] s 13A: [16.40], [16.90] s 13B: [16.40], [16.90] s 161O: [15.115] s 161Q: [15.115] s 161ZI: [2.280] Sch 1: [15.115] Sch 1A: [15.115] Sch 1B: [15.115] Police Powers and Responsibilities Act 2000: [2.10], [2.190] s 21(5): [2.10] s 365: [2.20]

TABLE OF STATUTES      xxix

Police Powers and Responsibilities Act 2000 — cont s 365(1): [2.10], [2.20] s 365(2): [2.10], [2.20] s 369(2): [2.10] s 371(a): [2.50] s 371(b): [2.50] s 372: [2.50] s 382: [2.10] s 390E(2): [2.220] s 391: [2.50] s 391(1): [2.10], [2.260] s 391(2): [2.10] s 391(3): [2.10] s 395(3): [2.10] s 397: [2.150] s 398: [2.10] s 403: [2.330] s 403(1): [2.130] s 403(2): [2.130] s 403(4): [2.130] s 403(5): [2.130] s 404(1): [2.130] s 405(1): [2.130] ss 405(2)–​(3): [2.130] s 406(1): [2.130] s 418: [2.150] s 419: [2.150] ss 420(1)–​(3): [2.190] ss 420(4)(a)–​(b): [2.190] s 420(5): [2.190] s 420(6): [2.190] ss 421(2)(a)–​(b): [2.200] s 421(3): [2.200] s 421(4): [2.200] ss 422(1)–​(2): [2.210] s 422(3): [2.210] s 423(2): [2.220] s 431: [2.150], [2.230] ss 431(1)–​(2): [2.230] ss 431(3)–​(4): [2.230] s 432: [2.150] s 433: [2.150] s 434: [2.150] s 435: [2.150], [2.230] s 436: [2.230] ss 437(4)–​(7): [2.230] s 614(1): [2.90] ss 614–​616: [2.10], [2.90] s 615(1): [2.90] s 615(3): [2.90]

ss 616(1)–​(4): [2.90] s 616(5): [2.90] s 633: [2.10] s 637(2): [2.10] s 791(2): [210] Ch 14: [2.10] Sch 6: [2.20], [2.210] Police Powers and Responsibilities Regulations 2012 s 22: [2.230] s 28: [2.230] Sch 9: [2.230] Primary Producers’ Organisation and Marketing Acts s 15: [13.100] Serious and Organised Crime Legislation Amendment Act 2016: [15.115] Div 4: [15.115] Statutory Instruments Act 1992 s 47: [13.140] Transplantation and Anatomy Act 1979 s 45(1): [4.60], [4.400] Vicious Lawless Association Disestablishment Act 2013: [15.110] s 2: [15.115] Youth Justice Act (Qld): [2.200] s 6(1): [2.200] Sch 4: [2.200]

SOUTH AUSTRALIA Criminal Law Consolidation Act 1935: [1.30] Police Offences Act 1953: [13.200]

VICTORIA Crimes Act 1958: [1.30] s 76: [7.320]

WESTERN AUSTRALIA Bail Act 1982: [2.290] s 6(4): [2.260] s 6(6): [2.260] s 7: [2.270] s 7(1): [2.270] s 7B: [2.270]

xxx      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Bail Act 1982 — cont s 7C: [2.270] s 7E: [2.270] s 15: [2.270] s 17: [2.320] s 28(1): [2.320] s 28(2): [2.320] s 35: [2.320] cl 1(a): [2.290] cl 3A: [2.300] cl 3B: [2.300] Sch 1: [2.320] Sch 1, Pt C, cl 1: [2.290], [2.300] Sch 1, Pt C, cl 3: [2.290], [2.300] Sch 1, Pt D, cl 1(2): [2.320] Sch 1, Pt D, cl 2(1): [2.320] Criminal Appeals Act 2004 s 46A(1): [3.110] s 46A(2): [3.110] s 46D: [3.100] s 46E: [3.100] s 46F: [3.100] s 46G(1): [3.100] s 46H(2): [3.120] s 46H(3): [3.120] s 46I: [3.120] s 46I(1): [3.120] s 46I(2): [3.120] s 46I(3): [3.120] s 46J: [3.120] s 46K(2): [3.120] s 46K(3): [3.120] s 82: [3.110] s 121: [3.110] s 122: [3.110] s 123: [3.110] s 124: [3.110] s 129: [3.110] s 130: [3.110] s 131: [3.110] s 132: [3.110] s 133: [3.110] s 135: [3.110] s 136: [3.110] s 143: [3.110] Criminal Code Act 1913: [1.20], [1.30], [1.40], [1.50], [1.60], [2.120], [3.150], [4.70], [4.250], [4.360], [5.150], [5.170], [6.10], [7.10], [7.30], [7.250], [7.380], [7.410], [7.540], [7.550], [7.570], [7.580],

[11.20], [11.30], [11.40], [11.50], [11.70], [12.30], [12.50], [12.60], [12.180], [14.10], [14.30], [15.10], [15.30] s 1: [5.80], [5.100], [5.150], [5.280], [7.70], [7.110], [7.370], [7.460], [7.540], [7.580], [11.70], [12.30], [12.50], [12.100], [12.180], [13.40], [13.250] s 1(4)(a): [5.80] s 1(4)(c): [5.150], [5.190] s 2: [1.30], [14.40], [15.30] s 3(2): [1.100] s 4: [1.30], [4.380], [14.10], [14.20], [14.30], [14.65], [14.70], [14.90], [14.100], [14.110] s 5: [1.100] s 6(2)(b): [16.30] s 7: [15.30], [15.55], [15.68], [15.80], [15.100], [15.110] s 7(a): [15.30], [15.40] s 7(b): [15.30], [15.50] s 7(c): [15.30], [15.50] s 7(d): [15.30], [15.70] s 7(3)(b): [16.30] s 8(1): [15.58], [15.60], [15.68], [15.70] s 8(2): [15.100] s 9: [15.70] s 10(1): [15.30] s 10(2): [15.90] s 10D: [14.20] s 16: [3.150], [3.160] s 17: [3.60], [3.180] s 22: [13.10], [13.20], [13.30], [13.40], [13.50], [13.60], [13.70], [13.80], [13.90], [13.100], [13.110], [13.120], [13.130], [13.150], [13.180], [13.190], [13.200], [13.250] ss 22–​36: [1.60] s 22(3): [13.10] s 22(4): [13.10] s 23: [12.80] s 23(1): [1.60], [4.320], [5.50], [6.140], [11.80], [11.90] s 23(2): [11.80], [11.90] s 23A: [1.90], [4.20], [5.60], [5.160], [12.100] s 23A(1): [5.160], [11.20], [11.30], [11.70] ss 23A(1)–​(2): [11.90] s 23A(2): [5.50], [11.20], [11.30] s 23B: [4.20], [4.370], [5.160], [11.50]

TABLE OF STATUTES      xxxi

Criminal Code Act 1913 — cont s 23B(1): [4.360], [5.160], [11.70] ss 23B(1)–​(2): [11.90] s 23B(2): [4.340], [4.350], [5.50], [11.40] s 23B(3): [4.140], [4.350], [5.160], [11.60] ss 23B(3)–​(4): [11.90] s 23B(4): [4.350] s 24: [5.50], [5.100], [6.20], [6.150], [6.260], [6.300], [8.40], [10.80], [12.110], [12.150], [13.30], [13.150], [13.160], [13.170], [13.180], [13.190], [13.200], [13.210], [13.220] s 25: [4.20], [9.240], [9.260], [13.210] s 25(3): [9.240] s 25(3)(b): [9.250] s 25(3)(c): [9.250] s 26: [12.20] s 27: [4.20], [12.20], [12.30], [12.50], [12.80], [12.100], [12.120], [12.140], [13.20] s 27(1): [9.200], [12.30], [12.110], [12.120], [12.170], [12.180] s 27(2): [12.30] s 28: [12.100], [12.120], [12.140] s 28(1): [12.110], [12.120], [12.130], [12.170], [12.180] s 28(2): [12.130], [12.140] s 28(3): [12.110], [12.120], [12.130], [12.170] s 29: [12.160], [12.170], [12.180] s 32: [9.280], [9.300], [9.310] s 32(2): [9.290] s 32(2)(c): [9.290] s 36: [13.30], [13.150] s 52: [15.20] s 68C(2): [15.112] s 134: [15.20] s 135: [15.20] s 221: [6.160] s 221D: [15.115] s 221E: [15.115] s 221F: [15.115] s 222: [4.370], [5.10], [5.20], [5.40], [5.50], [5.70], [5.130], [5.280], [6.200], [6.220], [6.300] s 223: [4.370], [5.10], [5.60], [5.70], [5.130], [5.280], [6.200], [6.300], [9.10] s 231(1): [2.100] s 233: [2.120]

s 233(1): [2.100] s 235(1): [2.100] s 235(2): [2.100] s 245: [9.120], [9.140], [9.310] s 246: [1.90], [5.60], [9.10], [9.20], [9.30], [9.40], [9.110], [9.150], [9.180], [9.190], [9.310] s 247: [9.10] s 248: [4.20], [5.60], [7.530], [10.120] s 248(1): [10.70], [10.170] s 248(2): [10.30], [10.50], [10.60], [10.140], [10.170] ss 248(2)–​(4): [10.60] s 248(3): [4.330], [10.30], [10.50], [10.60], [10.170] s 248(4): [10.50] s 248(4)(b): [10.120] s 248(5): [10.170] s 248(6): [10.170] s 249: [1.90] s 259: [9.240] s 260: [2.100] s 262: [4.180], [11.70] ss 262–​267: [4.170], [4.340], [4.360], [4.400], [5.80], [5.160] s 263: [4.190], [11.70] s 265: [4.200], [11.70] s 266: [4.170], [4.210], [5.160], [11.70] s 267: [4.220], [11.70] s 268: [4.20], [4.320] s 269: [4.40], [4.400] s 270: [4.30], [4.70], [4.400] s 271(2): [4.370] s 272: [4.100], [4.100] ss 272–​275: [4.90] s 277: [4.10], [14.10] s 279: [1.60], [4.20], [4.400] s 279(1): [3.50] s 279(1)(a): [4.250], [4.270] s 279(1)(b): [4.250], [4.270], [4.280] s 279(1)(c): [4.290], [4.300] s 279(2): [4.270] s 280: [1.60], [4.20], [4.230], [4.320] s 281: [4.350], [9.10] s 290(1): [3.50] s 281: [4.350], [4.370] s 283: [4.380], [14.10] s 284(4): [10.50], [10.170] s 290: [4.40] s 292: [5.130] s 293: [5.130]

xxxii      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Criminal Code Act 1913 — cont s 294: [5.110], [5.190], [5.280] s 294(1)(a): [14.10] ss 294(1)(a)–​(b): [14.10] s 294(1)(b): [14.10] s 294A: [5.130] s 295: [5.130] s 297: [5.160], [5.280] s 301(1): [5.170], [5.280] s 301(2): [5.130] s 304: [5.80] s 304(1): [11.70] s 304(2): [5.80] s 305: [5.130] s 305A: [14.10] s 306: [5.130] s 313: [5.70], [5.80], [5.100], [5.110], [5.280] s 317: [5.80] s 317A: [5.110], [5.280], [7.140] s 317A(b): [5.110] s 318: [5.100], [5.280] s 318(1)(1)(ii): [15.112] s 318A: [5.120] s 319: [6.180], [6.300] s 319(1): [6.40], [6.160] s 319(1)(a)(ii): [15.112] s 319(1)(e): [6.130] s 319(2): [6.50], [6.100], [6.120], [6.300] s 319(2)(1): [5.40] s 319(2)(a): [6.200] s 319(2)(b): [6.70] s 319(4): [6.170], [6.180] s 320: [6.260], [6.300] s 321: [6.260], [6.300] s 321(2): [3.50], [3.60] s 321(9): [6.260], [6.300] s 321(9A): [6.260] s 321(10): [6.260], [6.300] s 322: [6.260], [6.290], [6.300] s 322(7): [6.260] s 322(8): [6.260], [6.300] s 323: [3.60], [5.40], [6.180], [6.190], [6.220], [6.300], [9.30] s 324: [6.180], [6.190], [6.300] s 324(1): [15.112] s 325: [6.20], [6.40], [6.130], [6.140], [6.300], [14.30] s 326: [6.140], [6.160], [6.300] s 326(1): [15.112] s 327: [6.170], [6.180]

s 328: [6.170], [6.180] s 329: [6.260] s 329(11): [6.260] s 330: [6.280], [6.300] s 330(1): [6.280], [6.300] s 330(2): [6.280] s 330(3): [6.280] s 330(4): [6.280] s 330(5): [6.280] s 330(6): [6.280] s 330(9): [6.280], [6.300] s 331: [6.260] s 338: [5.230], [5.280] s 338A: [5.30], [5.210], [5.230], [5.280] s 338B: [5.30], [5.210], [5.230], [5.280] s 338B(a): [5.230] s 338B(b): [5.230] s 338D: [5.260], [5.280] s 338D(2): [5.260] s 338E: [5.280] s 338E(1): [5.260] s 338E(2): [5.260] s 345: [10.70] s 370: [7.70], [7.120], [7.580] s 371: [7.30], [7.80], [7.120] s 371(2): [7.40], [7.580] s 371(2)(a): [7.40], [13.130] s 371(2)(b): [7.40] s 371(2)(c): [7.40] s 371(2)(d): [7.40] s 371(2)(e): [7.40] s 371(2)(f): [7.40] s 371(3): [7.40] s 371(4): [7.30] s 371(5): [7.40] s 371(6): [7.50], [7.80] s 371(7): [7.110], [7.120], [7.580] s 371A: [7.40] s 378: [7.20], [7.120], [7.140], [13.130], [14.10] s 380: [7.380] s 385: [7.380] s 389: [7.380] s 390: [7.380] s 390A: [15.112] s 391: [7.150], [7.240] s 391(a)(i): [15.112] s 392: [7.150] s 392(c): [7.150] s 392(d): [7.150], [15.112] s 393: [7.240]

TABLE OF STATUTES      xxxiii

Criminal Code Act 1913 — cont s 400: [7.310] s 400(1): [7.310] s 400(1)(a)(iii): [15.112] s 400(2): [7.310] s 400(4): [7.370] s 401: [7.250], [7.300], [7.320] s 401(1): [7.300], [7.340], [7.370] s 401(1)(ba): [15.112] s 401(1)(b): [15.112] s 401(2)(ba): [15.112] s 401(2)(b): [15.112] s 401(2): [7.300], [7.350], [7.370] s 401(3): [7.300] s 401(4): [7.370] s 401A: [7.370] s 401B: [7.370] s 408D: [7.380] s 408E: [7.380] s 409: [7.380], [7.430], [7.450], [7.460] s 409(1): [7.400], [7.430], [7.460] s 409(1)(a): [7.450], [7.460] s 409(1)(b): [7.450], [7.460] s 409(1)(c): [7.460] s 409(1)(e): [7.460] s 409(1)(g): [7.400] s 409(2): [7.400] s 409(3): [7.430] ss 409(a)–​(f): [7.450], [7.580] s 426: [7.20] s 441: [7.530] s 441(2): [7.530] s 441(3): [7.530] s 442: [7.530] s 443: [7.520] s 444: [7.480], [7.500], [7.510], [7.560], [7.580] s 444A: [7.560] s 445: [7.500], [7.580] s 445A: [7.560], [7.580] s 449: [7.480] s 451: [7.480] s 451A: [7.480] s 451B: [7.480] s 455: [15.20] s 456: [7.480] s 459: [7.480] s 552(1): [14.90] s 558: [15.10] s 558(2): [15.10] s 558(2)(a): [15.10]

s 558(2)(b): [15.10] s 560: [15.10] s 560(1): [15.10] s 562: [15.90] s 562(2)(a): [15.90] s 562(2)(b): [15.90] Ch XXVI: [2.100] Ch XXXV: [10.70], [10.170] Ch 1: [1.50] Ch 2: [1.50] Ch 3: [1.50] Ch 5: [1.50], [13.30], [13.150] Pt 1, Ch IIA: [3.40] Pt 1, Ch V: [1.60], [5.50] Pt 5: [1.60] Pt 7: [1.50] Pt V: [10.70] Pt V, Ch XXXV: [10.70] Pt VI, Ch XXXVII: [7.380] Criminal Investigation Act 2006: [1.50], [2.10], [2.80], [2.100], [2.160], [2.180], [2.190], [2.200], [2.210], [2.220], [2.240] s 4: [2.40] s 7: [2.180] s 16: [2.110] s 16(1): [2.100] s 16(3): [2.100] s 24: [2.80] s 25: [2.80] s 25(1): [2.80] s 25(2): [2.80] s 25(5): [2.80] s 25(6): [2.80] s 25(7): [2.80] s 38C(2): [2.30] s 118: [2.240] s 118(3): [2.240] s 128: [2.40] s 128(1): [2.30] s 128(2): [2.30] s 128(3): [2.30] s 137: [2.190] s 137(3): [2.160] s 138: [2.190] s 138(2): [2.160] s 138(2)(b): [2.240] s 138(2)(c): [2.170] s 138(2)(d): [2.240] s 138(3): [2.160] s 138(4): [2.160]

xxxiv      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Criminal Investigation Act 2006 — cont s 139(2): [2.10], [2.140] s 140(3): [2.140] s 140(4): [2.140] s 140(6): [2.140] s 140(8): [2.140] s 141: [2.140] s 141(k): [2.220] s 154: [2.180] s 155: [2.180], [2.240] s 155(2): [2.240] s 155(3): [2.240] s 155(4): [2.240] Criminal Law (Mentally Impaired Accused) Act 1996 s 9: [12.20] s 11: [12.20] Criminal Procedure Act 2004: [1.50], [2.60] s 23: [2.60] s 24: [2.10] s 28(3)(a): [2.60] s 28(3)(b): [2.60] s 28(4)(a): [2.60] s 28(4)(b): [2.60] s 30(4): [2.60] s 30(4A): [2.60] s 30(5): [2.60] s 32(1): [2.60] s 79(2): [3.30] s 87(7): [3.30] s 126(3): [3.30] s 146: [12.20] Sch 1, cl 2: [3.40] Sch 1, cl 7: [3.40] Sch 1, cl 8: [3.40] Debt Collectors Licensing Act 1964: [13.100] s 5: [13.100] Firearms Act 1973 s 23(9A): [2.120] Fish Resources Management Act 1994: [13.200] s 45: [13.90] Fisheries Act 1905: [13.170] Health Act 1911 s 220: [13.160]

Interpretation Act 1918 s 5: [13.160] Interpretation Act 1984 s 5: [13.160] s 13C: [4.60], [4.400] s 67(1a): [1.100] s 67(2): [1.100] Medicines and Poisons Act 2014 s 3: [8.30] s 4: [8.30] Mental Health Act 1996 s 196: [2.210] Misuse of Drugs Act 1981: [1.30], [8.10] s 3: [13.200] s 4: [13.200] s 4(1), Sch I: [8.170] s 4(2), Sch II: [8.170] ss 5(a)–​(c): [8.170] s 5(e): [8.170] s 6(1): [8.65] s 6(1)(a): [1.60], [8.170] s 6(1)(b): [8.170] s 6(1)(c): [8.170], [13.200] s 6(2): [8.170] s 7(1): [8.65] s 7(1)(a), Sch VI: [8.170] s 7(1)(b): [8.170] s 7A(1): [8.170] s 9: [8.65] s 32A: [8.65], [8.170] s 34: [8.170] Sch I: [8.170] Sch II: [8.170] Sch III: [8.65] Sch IV: [8.65] Sch V: [8.65], [8.170] Sch VI: [8.65] Sch VII: [8.65], [8.130], [8.170] Sch VIII: [8.65], [8.130], [8.170] Poisons Act 1964 Sch 8: [8.30] Sch 9: [8.30], [13.200] Police Act 1892 s 82B: [13.40] Restraining Orders Act 1997 ss 6(1)(a)–​(c): [2.30] s 6(1)(f): [2.30]

TABLE OF STATUTES      xxxv

Restraining Orders Act 1997 — cont s 61(1): [2.30] s 61(2A): [2.30] Road Traffic Act  1974 s 59: [4.10] s 60: [7.20] s 61: [7.20] Sentencing Act 1995: [16.10], [16.140] s 3: [16.70] s 6(2)(c): [16.30] s 6(4)(b): [16.25] s 7(1): [16.30] ss 7(2)(a)–​(c): [16.30] s 8(1): [16.40] s 8(4): [16.40] s 8(5): [16.40], [16.90] s 9AA(2): [16.70] s 9AA(4): [16.70] s 9AA(5): [16.70] s 11: [3.150]

s 11(1): [3.200] s 11(2): [3.150] s 11(3): [3.160], [3.200] Young Offenders Act 1994 s 3: [2.200] s 8: [2.200] s 20: [2.200] s 46(5a): [7.370] s 189: [7.370]

IMPERIAL Commonwealth of Australia Constitution Act 1900: [1.20] s 51: [1.20] s 51(xxi): [1.20] s 51(xxxix): [1.20] s 92: [13.100]

UNITED KINGDOM Theft Act 1968: [7.290]

Introduction Learning outcomes..............................................................................   1 [1.10] Principles...................................................................................   1 [1.10] Nature of criminal law......................................................................   1 [1.20] Jurisdiction....................................................................................   2 [1.30] Codification...................................................................................   3 [1.40] Interpretation of the Codes................................................................   3 [1.50] Structure of the Criminal Codes..........................................................   5 [1.60] Establishing criminal liability..............................................................   5 [1.70] Proving criminal liability....................................................................   8 [1.100] Classification of offences...............................................................   10

Learning outcomes This chapter will enable you to: • Locate the main sources of criminal law in Queensland and Western Australia • Explain how the Codes are to be interpreted • Describe how to establish criminal liability • Explain how offences are classified by the Codes • Identify and explain the relevance of offence classification • Explain the onus and standard of proof with regard to criminal matters • Identify who has the onus of proof and what standard applies

PRINCIPLES Nature of criminal law [1.10] 

Criminal law is the body of law that determines whether and how a person (or a corporation) can be held responsible and punished by the state for certain behaviour. There are two broad divisions of criminal

Chapter 1

CHAPTER 1

2      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

law:  substantive criminal law and procedural criminal law. Substantive criminal law, which forms the main focus of this book, defines the behaviour covered by the criminal offences.Thus, it details the elements that need to be established if a person is to be liable to prosecution for a criminal offence (see Chapters 4-​8) as well as the elements of defences which negate liability: see Chapters 9-​13. Furthermore, substantive criminal law also defines when a person can be liable even if they do not directly commit an offence –​for example, where they plan to commit an offence, or encourage or help a person to commit an offence: see Chapters 14 and 15. Procedural criminal law details the process by which a person will be prosecuted for alleged breaches of substantive criminal law:  see Chapter  2. Thus, for example, it explains what the powers of the police are to investigate alleged breaches of the criminal law. These two branches of criminal law correspond with the two main functions of the criminal justice system. On the one hand, criminal law determines what sort of behaviour should be avoided and what will happen if a person does engage in the prohibited behaviour. In this way, it acts as a guide to citizens. On the other hand, it explains what powers and duties the state has to investigate and to prosecute alleged breaches of the criminal law. Thus, criminal law acts as a guide to the state. Once a person has been convicted for a criminal offence they may be subjected to state punishment. Sentencing determines what punishment may be imposed. While the law of sentencing is not strictly speaking termed “criminal law”, for the sake of completeness this book contains sections on sentencing: see Chapters 3 and 16.

Jurisdiction [1.20] 

The Constitution of Australia details the areas in which the Commonwealth (Federal) Parliament has power to make laws. As criminal law is not one of the fields listed in s  51 of the Constitution, the responsibility for enacting criminal law lies primarily with the States (and has also been transferred by the Commonwealth to the Territories). As a result, each of the States and Territories has developed their own criminal laws that apply within their territorial boundaries. This does not, however, mean that the Commonwealth has no power to make criminal laws. The Constitution empowers the Commonwealth Parliament to make laws on matters that are incidental to any of the powers expressly assigned to the Commonwealth:  Constitution, s  51(xxxix). Therefore, for instance, because the Commonwealth has power to make laws relating to marriage (Constitution, s 51(xxi)), it also has the power to make incidental

criminal laws –​for instance, relating to bigamy. States and Territories can still make criminal law in these fields but Commonwealth criminal law takes precedence over State or Territory law in those areas. In 1995, the Commonwealth Government enacted to cover the main offences against Commonwealth law. Given that criminal law is mainly a matter for each State and Territory, the focus of this book is the criminal law of Queensland and Western Australia. The criminal law of these two jurisdictions is similar because the Criminal Code drafted by Sir Samuel Griffith in 1897 for Queensland (which was enacted in 1899) was also adopted in Western Australia in 1902 (and then amended and re-​enacted in 1913). The Codes of these States are still similar in many ways; however, over the years various amendments to each of the Codes have meant that there are significant differences in some areas of criminal law.

Codification [1.30] 

Within Australia, there are two main criminal law traditions: common law and code. In common law jurisdictions, common law (judge-​made law) remains a fundamental source of criminal law alongside enactments such as the Crimes Act 1900 (NSW); Crimes Act 1958 (Vic); Criminal Law Consolidation Act 1935 (SA). These Acts are designed to consolidate much of the common law but they do not displace the operation of the common law. In contrast, in Queensland and Western Australia the Criminal Codes are designed to replace the common law. The Criminal Code Act 1899 (Qld), ss 2 and 5 and the Criminal Code Act 1913 (WA), ss 2 and 4 make this clear in stating that the provisions of the Criminal Codes (which are Schedules to the above Acts) will be the law of each State and that no person may be tried for an offence (in Queensland, an indictable offence) except under the express provisions of the Codes or some other statute. Hence, a person cannot be tried for an offence that only has a basis in common law. This does not mean that the common law is not important in Queensland and Western Australia; judge-​made law may be used to help interpret the words contained in the Codes. It should also be noted that not all criminal law is contained in the Codes; offences can also be found in other statutes, such as the Drugs Misuse Act 1986 (Qld) or the Misuse of Drugs Act 1981 (WA).

Interpretation of the Codes [1.40] 

The Criminal Codes of Queensland and Western Australia were specifically enacted to override the common law and therefore there are

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specific rules on how the words of the Codes are to be interpreted and when common law can be relied on to help interpret the Codes. Basically, words in the Code should be given their natural and ordinary meaning and the common law should only be called upon when the words of the Code are ambiguous or have a technical meaning that has carried over from the common law. These rules were explained by Kirby J in R v Barlow (1997) 188 CLR 1 at 136-​137:

1. A code is enacted by an Act of Parliament. Like any other enactment, the imputed will of Parliament must be derived from the language of the enactment, understood in its context and, so far as possible, in order to give effect to its apparent purposes. Courts must give the language of a code, like any legislation, its natural meaning … If that meaning is clear and unambiguous, it must be given effect. The court will only look externally to other sources where the meaning is doubtful either because of the inherent ambiguity of the language used or because the words used have previously acquired a technical or special meaning …



2. As a species of legislation, a code, such as the Code in question, is subject to a paramount rule. Its meaning is to be ascertained (Boughey v The Queen (1986) 161 CLR 10 at 30; 20 A Crim R 156 at 170, per Brennan J): by interpreting its language without reference to the pre-​existing law, although reference may be made to that law where the Code contains provisions of doubtful import or uses language which has acquired a technical meaning … It is erroneous to approach the Code with the presumption that it was intended to do no more than restate the existing law (Brennan at 263) but when the Code employs words and phrases that are conventionally used to express a general common law principle, it is permissible to interpret the statutory language in the light of decisions expounding the common law … including decisions subsequent to the Code’s enactment … Thus the first loyalty is to the code … But in the stated circumstances, regard may be had to the pre-​existing common law and to parallel developments in non-​code jurisdictions.



3. At least in matters of basic principle, where there is ambiguity and where alternative constructions of a code appear arguable, this Court has said that it will ordinarily favour the meaning which achieves consistency in the interpretation of like language in the codes of other Australian jurisdictions … It will also tend to favour the interpretation which achieves consistency as between such jurisdictions and the expression of general principle in the common law obtaining elsewhere … This principle of interpretation goes beyond the utilisation of decisions on the common law or on comparable statutory provisions to afford practical illustrations of particular problems and the approaches adopted in resolving them … It represents a contribution by the Court, where that course is sustained by the language of the code in question, to the achievement of a desirable uniformity in basic principles of the criminal law throughout Australia.Variations in local opinion may result in

divergencies in matters of detail in the criminal law. But in matters of general principle, it is highly desirable that unnecessary discrepancies be avoided or, at least, reduced.

4. In giving meaning to a particular phrase or word in a code, it is important to read it in the context of the code taken as a whole …

For a recent case discussing the process of interpretation of Code provisions, see Hayman v Cartwright [2018] WASCA 116.

Structure of the Criminal Codes The Criminal Criminal Codes of Queensland (CCQ) Criminal Code Act 1899 (Qld) and Western Australia (CCWA) Criminal Code Act 1913 (WA) follow a similar basic structure (although there are some differences). Part 11 of the Codes concerns general matters that are relevant to the whole of the criminal law.This includes the definition of terms used throughout the Codes (Codes, Ch 1), detail on when and to what degree a person can be held to be a party to an offence (Codes, Ch 2), an explanation of when and where the Codes are applicable (CCQ, Ch 4; CCWA, Ch 3) and general provisions on criminal responsibility (Codes, Ch 5). Parts 2-​6 of the Codes contain the offence provisions and, as such, detail the elements of the offences, explaining what needs to be proven to convict a person of the relevant offence. Part 7 contains provisions establishing liability for an offence where, although an offence has not actually been committed, there was preparation towards committing that offence. And finally, Pt  8 of the CCQ contains sections relating to criminal procedure. In 2004, the provisions of this Part of the CCWA were moved to other enactments such as the Criminal Procedure Act 2004 (WA) and the Criminal Investigation Act 2006 (WA). [1.50] 

Establishing criminal liability [1.60] 

As noted above, Pts 2-​6 of the Codes contain offence provisions. These provisions explain the elements that must be proved to hold a person liable for a criminal offence. For example, Pt  5, Ch  28 of both Codes contains sections establishing homicide offences and defining the elements which make up those offences. Sometimes these offence provisions only require proof of certain physical elements and that these were brought about unlawfully. For example, the offence of manslaughter (CCQ, s 303; CCWA, s 280) requires that a person unlawfully kills another (in circumstances that do not amount to murder). Killing is the physical element that must be

1

Note that in the CCWA, all Parts and Chapters are referred to by Roman numerals.

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established and the element of unlawfulness relates to the fact that there is no authorisation, justification or excuse (often broadly referred to as defences).2 These defence provisions are sometimes found in the Parts of the Codes dealing with specific offences if they only apply to certain offences (eg self-​ defence only applies to offences against the person and is therefore found in Codes Pt 5 among the provisions relating to offences against the person). They may be found in Ch 5 of Pt 1 of the Codes if they are applicable to all offences (for example, insanity). Other offences require not only proof of physical elements but also that the offender had a certain state of mind at the time of committing the offence. For example, the offence of murder (CCQ, s 302; CCWA, s 279) requires that a person unlawfully killed another person with the intention of killing that person.3 For murder the physical element is the same as for manslaughter (killing) and the element of unlawfulness is the same (in the sense that there is no authorisation, justification or excuse), but in the case of murder, there is the additional requirement of a mental element (the intention to kill). It is possible to break down the elements of criminal liability into three main categories, as shown in Diagram 1.1. Diagram 1.1: Criminal liability

The physical element (sometimes called “conduct” or “external element”) refers to what a person actually does and, where relevant, the results that the person causes and the circumstances of the offence. Some offences are completed as soon as a person commits an act –​for example, a person is liable for the offence of common assault as soon as they touch another person without their consent. Such offences are sometimes referred to as “conduct offences” because they do not require proof of any consequence following from the conduct of the person. Other offences may not be completed until some result follows from what a person does. In such instances, it must be shown that the conduct caused the result. For example, if a person gives another person some poison and that person dies, it must be shown that 2

The term defence is used broadly to refer to anything that negates liability. For further discussion of terminology in relation to defences, see [1.90].

3

A person can be liable for murder with other states of mind, but for the sake of simplicity only one form of mental state is discussed here.

the act of giving the poison caused the person to die. These offences are sometimes referred to as “result offences” because there must be proof that the person caused a certain result. The physical element usually requires an act on the part of the person. It is a general principle of criminal law that a person cannot be held liable for an offence for not acting unless they have a duty to act. For example, a person would not normally be held to have caused the death of another if they do nothing to save that person from drowning in a lake unless they had a duty to rescue that person because, for instance, it was that person’s child. The physical element can also include things that are neither actions nor results, but rather, are circumstances, such as a lack of consent. For example, an assault requires the act of applying force, or threatening or attempting to apply force, in the circumstance of the person not consenting to that act. The mental element (sometimes referred to as “fault” or “internal element”) relates to the state of mind of the offender. Not all offences require proof of a mental state and the general rule in Queensland and Western Australia is that a mental element only needs to be proved where the offence provision requires it: CCQ, s 23(2); CCWA, s 23(1). Where no mental element is required, it is only necessary to prove the physical elements of the offence and that there was no defence (if a defence is available based on the evidence). In contrast to common law criminal jurisdictions, there is no concept of “mens rea”, in the Codes. As explained by the Court of Appeal of Western Australia in Hayman v Cartwright [2018] WASCA 116: The common law doctrine of mens rea has no application to the Code. Rather, the elements of an offence (including any mental element) are determined solely by the provisions of the Code. Part 1 ch V of the Code is headed ‘Criminal responsibility’ and comprises s 22 to s 36. Those provisions set out the circumstances in which a person is not criminally responsible for an act or omission. Absent other provision in the text of the law creating a particular offence (see, for example, s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) and the decision of the majority in The State of Western Australia v R), ch  V comprises the whole of the law in respect of the criminal responsibility of persons charged with criminal offences in this State.

If a mental element is required, it must exist at the same time as the physical elements of the offence. For example, to be liable for murder, a person must intend to kill at the time they commit the acts that lead to death. In the case of Thabo Meli v The Queen [1954] 1 All ER 373, the accused hit the victim and, thinking that he had been killed, then pushed the victim’s body over a cliff to make it look like an accident.The victim had not actually died when he was hit, but died later due to exposure.The issue in this case was whether the accused could be convicted of murder given that there was no intention

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to kill the victim at the time the act that killed him was committed (because at this point the accused thought he was already dead) but that the intention to kill had existed when the victim was originally hit. The court found that the whole behaviour of the accused had to be looked at, rather than dividing the actions into separate transactions. Thus (at 374): [t]‌here is no doubt that the accused set out to do all these acts in order to achieve their plan, and as parts of their plan … it is too refined a ground of judgment to say that, because they were under a misapprehension at one stage and thought that their guilty purpose had been achieved before in fact it was achieved, therefore they are to escape the penalties of the law.

As noted above, the final element required to establish criminal responsibility is to prove that there is no defence if a defence has been raised by the evidence. If there is a defence, which has not been disproven, then the behaviour of the accused will not be found to be unlawful and they will not be found to be criminally responsible.4

Proving criminal liability [1.70] 

A basic principle of criminal law is that a person is presumed innocent until proven guilty. The effect of this presumption is that the prosecution is required to prove that a person is guilty beyond all reasonable doubt.This was most famously explained by Viscount Sankey in Woolmington v DPP [1935] AC 462 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 and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, 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.

Proving the guilt of the accused means that the prosecution must prove all the elements of the offence and disprove any defence that is raised. There are two steps to proving guilt: first, the evidentiary burden must be satisfied; then the persuasive or legal burden. For further discussion of the meaning of

4

There are, however, some partial defences which do not lead to an acquittal, but rather reduce a charge of murder to manslaughter. These are discussed in Chapter 9.

evidentiary and persuasive (legal) burden, see Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR at [50]-​[54] per Heydon J. Evidentiary burden [1.80] 

The evidentiary burden requires that sufficient evidence is brought to demonstrate to the court that there is an issue worth considering. The evidentiary burden lies on the party seeking to establish the issue.Therefore, if the prosecution wishes to establish that a person is guilty of an offence, it must bring evidence that is sufficient to demonstrate to the court that it is worth trying the accused for the offence. If the accused wishes to have a defence considered, then generally he or she must raise evidence to demonstrate to the court that it is worthwhile considering whether he or she does have a defence. If the prosecution does not bring sufficient evidence to show that it is worth trying the accused, then there will be “no case to answer” and the case will be dismissed. Persuasive or legal burden [1.90] 

Once the evidentiary burden is satisfied, the persuasive or legal burden must be satisfied. This burden requires that the court is persuaded of the issues raised by the evidence. Generally, this burden is on the prosecution. For example, in a case of murder, the prosecution must prove beyond all reasonable doubt that the accused did kill a person and did in fact intend to kill that person. Further, if the accused has raised an excuse, such as self-​defence, the persuasive burden is on the prosecution to prove beyond reasonable doubt that the accused was not acting in self-​defence. There are exceptions to this general rule that the prosecution must disprove any defence beyond a reasonable doubt.The most obvious example is insanity. If the accused raises insanity and satisfies the court that this is an issue worth the court considering (evidentiary burden), he or she also has the persuasive burden of proving this defence. However, the standard of proof here is on the balance of probabilities –​that is, it is more likely than not, rather than beyond reasonable doubt: see Chapter 12. While in general terminology, anything that negates criminal liability for an offence is referred to as a defence in Queensland and Western Australia, the term “defence” can also be used to mean something that has been raised by the accused which must also be proved by the accused on the balance of probabilities  –​for

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example, insanity. In contrast, “defences”, which once raised by the accused must be disproven by the prosecution beyond all reasonable doubt (for example, self-​defence), are referred to as “excuses”.5

Classification of offences [1.100] 

Offence classification is important because, among other things, it determines how an offence will be tried. The two ways of trying offences are on indictment by a judge and a jury6 in the District or Supreme Court, or summarily in the Magistrates Court. Anything called a “crime” or a “misdemeanor” is an indictable offence and must, unless otherwise stated, be tried on indictment: CCQ, s 3(3); Interpretation Act 1984 (WA), s 67(1a); CCWA, s 3(2). Simple offences are tried summarily. In Queensland, there are also regulatory offences, which are also tried summarily. Offence descriptions usually indicate whether the offence is a crime, misdemeanour or simple offence. If an offence description does not indicate how the offence is classified, it is a simple offence: CCQ, s 3(5); Interpretation Act 1984 (WA), s 67(2). In certain circumstances, even though an offence is designated an indictable offence, it may be tried summarily.The rules for when this can occur are contained in CCQ, ss 552A-​552B; CCWA, s 5.

5

There is also a difference between justifications and excuses. An “excuse” is indicated where the section states that there is “no criminal responsibility” for conduct (for example, unwilled act: CCQ, s 23; CCWA, s 23A; provocation: CCQ, s 269; CCWA, s 246). A justification is indicated where the section states that the conduct is “lawful” (for example, self defence: CCQ, s 271 (only against unprovoked attack, self defence against a provoked attack is an “excuse”, CCQ, s 272); CCWA, s 249). Although in each case an accused is acquitted if successful there are implications apart from the underlying moral principle. For example, it is now clear that conduct that is “lawful” cannot be the basis for a person relying on self defence.

6

In some limited instances, it is possible to try a person without a jury.

Procedure Learning outcomes ...........................................................................   11 [2.10] Principles.................................................................................   12 [2.10] Arrest.........................................................................................  12 [2.20] Arrest without a warrant..................................................................  14 [2.50] Warrants for arrest.........................................................................  17 [2.70] Citizens’ powers of arrest.................................................................  19 [2.90] Use of force..................................................................................  22 [2.130] Detention for questioning and investigation........................................  26 [2.150] Rights during questioning and investigation.......................................  28 [2.190] Questioning particular persons........................................................  35 [2.230] Cautioning and recording of questioning............................................  40 [2.250] Bail..........................................................................................  43 [2.330] Elements toolbox..................................................................   52 [2.340] Guide to problem solving......................................................   53 Revision questions ...........................................................................   54 Problem questions ...........................................................................   55 Answers to revision questions .........................................................   55 Answers to problem questions ........................................................   57 Critical thinking questions ...............................................................   60

Learning Outcomes This chapter will enable you to: • Understand whether a police officer can arrest a person without a warrant • Identify what a warrant for arrest must contain and how it should be executed • Understand whether a citizen can arrest another citizen • Apply the time limits relating to detention for questioning and investigating • Identify the rights of a person who is being detained for questioning

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• Understand the special procedures put in place to question Aboriginal people, Torres Strait Islanders, children, persons with impaired capacities and persons under the influence of liquor or drugs • Understand the need to caution and record questioning • Understand who may grant bail • Identify the factors taken into consideration in determining whether to grant bail • Identify the conditions of release on bail

PRINCIPLES Arrest [2.10] 

The main ways of bringing a person before the court to face charges for a criminal offence are: • complaint and summons: Justices Act 1886 (Qld) (JA (Qld)), s 42; • notice to appear: Police Powers and Responsibilities Act 2000 (Qld) (PPRA (Qld)), s 382; • prosecution notice:  Criminal Procedure Act 2004 (WA) (CPA (WA)), s 24; and • arrest: PPRA (Qld), Ch 14. A complaint and summons, notice to appear and prosecution notice are documents that command a person to appear in court at a certain time. An arrest is where a person is detained and either remains in detention awaiting their appearance in court or is released on bail until their court appearance on the condition that they appear in court at a specified time. If a person is arrested they should only remain in custody where it is necessary to ensure that the person appears before the court, or to avert them interfering with the course of justice if they are released. Traditionally, arrest was understood only as a means of bringing the person before the court to face charges, the beginning of imprisonment, imprisonment before trial; questioning alone was not reason enough to warrant arrest: Williams v The Queen (1986) 161 CLR 278 at 305 per Wilson and Dawson JJ. However, the PPRA (Qld) and the CIA (WA) have extended the purposes for which a person may be arrested to include purposes such as, questioning the person about an offence they may have committed or investigating such an offence: PPRA (Qld), ss 365(1) and (2); CIA (WA), s 139(2).

An arrest includes apprehend, take into custody, detain and remove to another place for examination or treatment: PPRA (Qld), ss 21(5), 369(2) and 395(3). An arrest may take the form of a person actually being physically restrained through the application of force; however, physical restraint is not necessary. An arrest may also be effected by the arresting person saying words that make clear a person is being arrested, and that person then submitting to the arrest. An arrest is a question of fact, dependent the person being deprived of liberty to go where they please, and the person being clearly informed of the arrest. The person may be clearly informed through statements or actions or both that they are under arrest and not free to leave, because they are to be charged by police and brought before the court: Michaels v The Queen (1995) 184 CLR 117 at 126-​127 per Brennan, Deane, Toohey and McHugh JJ. There are usually 5 steps to an effective arrest: 1

The arresting officer clearly informs the person they are under arrest, physical contact is not required to validate the arrest: PPRA, ss 391(1), (2), 633 and 791(2); The Queensland Police Service Operational Procedures Manual Issue 72.1, s 3.5.10.

2

The arresting officer states the nature of the offence and/​or warrant: PPRA, ss  391(1) and (2); Criminal Code Act 1899 (Qld) (CCQ), s 255(2).

3

The arresting officer informs the person of the officer’s name, rank and station: PPRA (Qld), ss 391(3) and 637(2).

4

The person voluntarily surrenders to the arresting officer’s control, otherwise the person is physically restrained by the arresting officer, using reasonably necessary force:  PPRA (Qld), ss  614-​616; CCQ, ss 249, 254, 257-​258.

5

The arresting officer, as soon as reasonably practicable, takes the person before a court to be dealt with according to law:  PPRA (Qld), s 393(1).

Taking a person before the court as soon as reasonably practicable is a question of fact, that must be gauged by what is necessary and reasonably incidental in enabling the person to be taken before the court. Considerations when answering this question may include, but are not limited to: the time, place and conditions of the arrest, availability of a justice, availability of police officers and transport, the reasonable time to formulate charges, lay charges and complete all necessary paperwork:  Williams v The Queen (1986) 161

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CLR 278 at 283-​285 (Gibbs CJ, Mason and Brennan JJ agreeing at 300-​301, Wilson and Dawson JJ agreeing at 312-​313). Reasonable time to formulate charges, lay charges and complete all necessary paperwork may include time for the police officer to perform their duty to investigate whether or not to grant the arrested person bail: Bail Act 1980 (Qld) (BA (Qld)), s 7(2). The duty of a police officer to take an arrested person before a justice to be dealt with according to law is discharged if: the police officer grants the person bail; and issues and serves the person with a notice to appear and then releases the person from custody:  BA (Qld), s  7(7). However, the police officer cannot grant bail to: a person arrested for an indictable offence; or a person in lawful custody for an undecided offence; or a person in lawful custody under a sentence for a term of imprisonment or a detention order; or a child: BA (Qld), ss 7(1)(b) and (9); PPRA (Qld), s 398. An arrest may be made with or without a warrant; a warrant is a document that authorises the police to perform specified acts. The PPRA (Qld) and the CIA (WA) detail the conditions under which a person may make an arrest without a warrant.

Arrest without a warrant Queensland [2.20] 

Pursuant to PPRA (Qld), s  365(1)(a)-​(k), a police officer may arrest an adult without a warrant if they reasonably suspect the person has committed, or is committing, an offence and the arrest is reasonably necessary for reasons such as, but not limited to: • to prevent the continuation or repetition of an offence, or the commission of another offence; • to establish the person’s identity; • to ensure attendance before a court; • to obtain or preserve evidence relating to the offence; • to prevent harassment or interference with a person who may be required to give evidence; • to prevent the fabrication of evidence; • to preserve the safety and wellbeing of any person; • to prevent the person fleeing;

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• because the offence is assaulting police or disobeying direction; • because of the nature and seriousness of the offence. Note that s 365 also contains other reasons for making an arrest without a warrant. A police officer may, for the purposes of questioning or investigating an offence, arrest a person without a warrant if they reasonably suspect the person has committed or is committing an indictable offence: PPRA (Qld), s 365(2). • Reasonably suspects means suspects on grounds that are reasonable in the circumstances: PPRA (Qld), Sch 6. • Suspects is a subjective belief, an inclination of the mind, that may be based on less evidence than proof on the balance of probabilities; and depending on the circumstances, may include surmising or conjecture:  George v Rockett (1990) 170 CLR 104 at 116. Western Australia [2.30] 

In Western Australia, a police officer or a public officer may arrest a person without a warrant if the officer reasonably suspects that the person has committed, is committing, or is just about to commit a serious offence: CIA (WA), s 128(2). A serious offence includes one where the statutory penalty is or includes imprisonment for five years or more, or life: CIA (WA), s 128(1). (Note: a serious offence can also be an offence under the Restraining Orders Act 1997 (WA), s 61(1) or (2a); or one that involves an “act of family and domestic violence” as defined in the Restraining Orders Act 1997 (WA), s 6(1) (a)-​(c) and (f); or an offence under s 38C(2) (Offence not to comply with order relating to out-​of-​control gathering).) Where the offence is not a serious offence there are stricter conditions for when an officer may arrest without a warrant.The conditions, which are found in CIA (WA), s 128(3), are that the officer reasonably suspects that the person has committed, is committing, or is just about to commit an offence and that if the person is not arrested: • it will not be possible, in accordance with law, to obtain and verify the person’s name and other personal details; • the person will continue or repeat the offence; • the person will commit another offence; • the person will endanger another person’s safety or property;

Chapter 2

• because the offence is a breach of domestic violence provisions; and

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• the person will interfere with witnesses or otherwise obstruct the course of justice; • the person will conceal or disturb a thing relevant to the offence; or • the person’s safety will be endangered. [2.40] 

Section 4 of the CIA (WA) contains a definition of “reasonably suspects”: For the purposes of this Act, a person reasonably suspects something at a relevant time if he or she personally has grounds at the time for suspecting the thing and those grounds (even if they are subsequently found to be false or non-​existent), when judged objectively, are reasonable.

This is a two-​step process. First, it must be considered what was in the mind of the person making the arrest and whether the person actually suspects the thing. Second, it must be asked whether this suspicion was an “objectively reasonable one, judged at the time and in the circumstances in which the power was exercised”. See Fox v Beringer [2011] WASC 38 at [31]-​[32]. The powers of arrest given by CIA (WA), s 128 were considered in Johnson v Staskos [2015] WASCA 32. This case considered whether the common law rule that a person arrested must be informed of the reasons for arrest continues to apply in Western Australia. McLure P stated: 14. Having regard to the legislative history and s 231(2) of the Code, the purpose and intent of s  128 is to exhaustively state the conditions that enliven a police officer’s power to arrest a person. The common law rule is inconsistent with that provision in that it would add a further condition, satisfaction of which would be necessary to enliven the power to arrest. 15. Further, because the consequence of the common law rule, that of unlawfulness, goes to its heart, the inconsistency is of such significance that there is no scope for the continued operation of the common law rule in any amended or abridged form. That conclusion is supported by the statutory right of an arrested suspect in s 138(2)(a) of the CIA “to be informed of the offence for which he or she has been arrested and any other offences that he or she is suspected of having committed”. Section  138(3) places an obligation on the officer in charge of the investigation as soon as practicable after the arrest to afford the suspect his or her rights under s 138(2). It is clear from the statutory text and context that the right and obligation arise after arrest. 16. Having regard to the legislative history and the scope of s 128 of the CIA, I am satisfied that the right and obligation in s 138(2)(a) and s 138(3) are intended to cover the field on the timing and content of the information to be provided relating to arrest.

Therefore, an arrest is not unlawful if the arresting person fails to inform the arrested persons of the reasons for the arrest or the facts that give rise to the offence. This obligation only arises after the arrest itself has been made. It does not affect the lawfulness of the arrest itself.

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Queensland [2.50] 

A warrant may be issued by a justice if there are reasonable grounds for suspecting that a person has committed an indictable offence:  PPRA (Qld), s 371(a). A warrant may also be issued if the person committed an offence that is not an indictable offence and a complaint and summons or notice to appear cannot be served on the person because they cannot be located: PPRA (Qld), s 371(b). After a lawful warrant has been obtained, it is lawful to arrest or detain a person: CCQ, s 249. An arrest warrant must contain details such as the name, rank, registered number and station of the applicant for the warrant, the offence allegedly committed, and that any police officer may arrest the person named in the warrant: PPRA (Qld), s 372. When executing a warrant, a police officer should, where reasonably practicable, have the warrant with them and produce it if necessary: CCQ, s  255. The police officer must inform the person as soon as reasonably practicable after the arrest that they are under arrest and provide details of the nature of the offence: PPRA (Qld), s 391. Where a police officer arrests the wrong person but believed in good faith and on reasonable grounds that they had arrested the correct person, they are not criminally responsible: CCQ, s 252. Similarly, if a warrant is in some way defective in substance or form and the person executing it believed it was good in law, they are not criminally responsible for it: CCQ, s 253. Western Australia [2.60] 

If the prosecution wants to charge a person with an offence they have three options: 1

arrest the person without a warrant (discussed above);

2

issue a summons; or

3

make an arrest with a warrant.

If the person is not arrested without a warrant, the procedural requirements for charging a person are set out in the CPA (WA). If the person is an authorised investigator, he or she may: • personally issue a summons to the accused; or • apply to a JP or a court officer for a summons to the accused; or

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Warrants for arrest

18      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

• apply to a magistrate for an arrest warrant for the accused: CPA (WA), s 28(3)(a) (indictable offence), s 28(4)(a) (simple offence). Where the person is not an authorised investigator, the only options are to: • apply to a JP or a court officer for a summons to the accused; or • apply to a magistrate for an arrest warrant for the accused: CPA (WA), s 28(3)(b) (indictable offence), s 28(4)(b) (simple offence). Note that it is rare in Western Australia for an arrest to be made with a warrant. Usually a person will be arrested without a warrant or will be issued with a summons. A summons is a document signed by a Judge requiring a person to attend court on the designated date and time to answer the charges noted on the summons. A summons has to comply with CPA (WA), s 32(1). In the rare case that an arrest is to be made with a warrant, a magistrate may not issue an arrest warrant unless there is: • a valid prosecution notice; and • reasonable grounds for the warrant; and • the warrant is justified. A prosecution notice is a notice containing details of the alleged offence which is issued to the accused.The form it must take to be valid is explained in CPA (WA), s  23. If the offence is indictable, there must be reasonable grounds to suspect that the accused committed the offence and that the accused would avoid service of a summons or not obey a summons: CPA (WA), s  30(4). For a simple offence, there must be reasonable grounds to suspect that the accused would avoid the service of a court hearing document, or the presence of the accused is likely to be necessary for sentencing purposes when the prosecution notice is dealt with: CPA (WA), s 30(4a).The issue of an arrest warrant must also be justified.The CPA (WA), s 30(5) details that an arrest warrant would be justified if:

(a) there are reasonable grounds to suspect that if the accused were not arrested, the accused –​



(i) would commit an offence;



(ii) would continue or repeat an offence charged in the prosecution notice;



(iii) would endanger another person’s safety or property; or



(iv) would interfere with witnesses or otherwise obstruct the course of justice, whether in relation to the accused or any other person;

(b) the accused’s whereabouts are not known to the prosecutor; (c) the accused is the subject of another warrant for his or her arrest, whether under this Act or otherwise; or (d) for any other reason the magistrate is satisfied the issue of the warrant is justified.

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Queensland [2.70] 

A person may make a citizen’s arrest where they witness another person breaching the peace. Section 546(b)-​(e) of the CCQ states that a person may lawfully arrest another person without a warrant if: • they are assisting a police officer who reasonably suspects a person has committed an offence; • they find another person committing an offence; • they reasonably believe another person has committed an offence; or • they find another person at night whom they reasonably believe is committing an offence. If a person finds another person committing an indictable offence at night, they may make a citizen’s arrest: CCQ, s 549. It is lawful for any person to arrest without warrant any other person whom the person believes, on reasonable grounds, to have committed an offence and to be escaping: CCQ, s 550. A citizen may also make an arrest of a person to prevent violence, if the citizen believes, on reasonable grounds, that the person is an involuntary patient under the Mental Health Act 2016 (Qld) or a forensic disability client under the Forensic Disability Act 2011 (Qld): CCQ, s 266. Once a person has made a citizen’s arrest of another person, they have a duty to take the arrested person before a justice or deliver them to a police officer: CCQ, s 552. Failing to comply with this duty is a misdemeanour punishable by imprisonment for two years: CCQ, s 137. Western Australia [2.80] 

A citizen may arrest a person if he or she reasonably suspects that the person has committed or is committing an arrestable offence:  CIA (WA), s 25(2). An arrestable offence is one where the statutory penalty is or includes imprisonment: CIA (WA), s 25(1). A citizen may also arrest a person who is, in her or his presence, doing any of the following acts, or the citizen reasonably suspects that the person is just about to do any of the following in her or his presence (CIA (WA), s 24): • an act involving the use of violence against a person; or • an act that the citizen reasonably suspects will cause a person to use violence against another person; or

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Citizens’ powers of arrest

20      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

• an act that the citizen reasonably suspects will cause a person to fear violence will be used; or • a breach of the peace. If a citizen makes an arrest, they must arrange for a police officer to attend or take the suspect and anything relevant to the offence to a police officer as soon as is practicable:  CIA (WA), s  25(5). The citizen may detain the person until they have made such arrangements: CIA (WA), s 25(6). The police officer must then arrest the person or the person ceases to be under arrest: CIA (WA), s 25(7). This provision was considered in Kerber v Towler. Mr Towler was acquitted of assault on the basis of self-​defence.The prosecution appealed the acquittal. The alleged assault was committed against a privately employed security guard at a nightclub. One of the issues was whether the security guard had executed a lawful arrest of Mr Towler. As the guard was privately employed, he did not have the powers of arrest afforded to a police officer. Therefore he was to be considered as an ordinary member of the community, and would have to meet the requirements of a citizen’s arrest in CIA (WA), s 25. On appeal, Martin J held that a person may make a citizen’s arrest if they have a reasonable suspicion that an arrestable offence has occurred. A person may have a reasonable suspicion for the purposes of the CIA (WA) even if that person is ultimately mistaken about the factual basis underlying the suspicion. In this case, the security guard may have been mistaken about the identity of the person who assaulted another security guard. However, this did not necessarily mean that the citizen’s arrest was unlawful. The question is whether, judged objectively, the security guard’s grounds for suspicion were reasonable at the time. Martin J also held that there must be sufficient communication of the purported citizen’s arrest and the reason(s) for the arrest. The extent of the information required will depend on the circumstances of the particular case. The appeal was allowed (on this and other points) and the matter was remitted for retrial. Martin J stated: 75 Hence, even the premise of an identification error by Mr O’Neil concerning Mr Towler’s prior assault conduct does not of itself undermine Mr O’Neil’s ability to execute a lawful citizen’s arrest upon Mr Towler, invoking s 25(2) of the Criminal Investigation Act. 76 What was required for s 25(2) to apply was only for Mr O’Neil to “reasonably suspect” Mr  Towler had committed, or was committing an “arrestable offence”. An event of Mr Towler striking another security officer outside Burswood, which is what Mr O’Neil thought he saw, would clearly constitute an arrestable offence, namely an assault. 77 A necessary following question as to whether it was reasonable for Mr O’Neil to hold that suspicion, bearing in mind, for example, familiar issues of identification

in such settings, raises only another question of fact. As such, it is to be decided and resolved on all the evidence at the trial. 78 It is clear, nevertheless, that a reasonable suspicion for the purposes of s 25(2) may be held, even if ultimately the factual basis underlying the suspicion proves to be mistaken. So much, I would have thought, is evident already from the text (“reasonably suspects”) of s 25(2) itself. 79 But any lingering doubts about that outcome are removed by s  4 of the Criminal Investigation Act. The words in parentheses from s  4 (set out above) clearly recognise some scope for error, as regards the facts relied upon to found a reasonable suspicion. The question is whether, judged objectively, the grounds for suspicion were reasonable at the time.

Martin J also considered how a citizen’s arrest is to be carried out. It was stated: 90. As to the lack of any communication about any arrest, a need for an arrestor party to actually speak to convey that information as to arrest as well as the reason for the arrest to a person sought to be detained is, strangely, not a requirement seen to be expressly addressed, under s 25(1) or (2) of the Criminal Investigation Act. Of course, where the arresting party is an on duty uniformed police officer, then wholly different considerations, including visual cues, must apply…. 93 What then is the position in terms of information (if any) Mr O’Neil needed to communicate to Mr Towler, as Mr O’Neil approached, and attempted to effect a citizen’s arrest to restrain Mr Towler? Was it still lawful conduct being manifested for s 248(5) purposes as Mr O’Neil eventually restrained Mr Towler, first by placing hands upon him, and thereby engaging in conduct that in the ordinary course would amount to an assault upon Mr Towler? 94 At this point it is necessary to divert to assess s 25 in a context of the common law, concerning the effecting of a valid citizen’s arrest. 95 As we have seen, s 25 of the Criminal Investigation Act does not display by its language any guidelines, let alone a code of conduct, as regards an implementation of a valid citizen’s arrest. Hence the need to consider the common law. 96 In assessing requirements for implementing a valid citizen’s arrest it is necessary to import the assistance of the common law towards rendering an overall assessment as to what is required. Undoubtedly, however, in that process the unique presenting scenarios attending each underlying fact situation for a citizen’s arrest will need to be afforded a bespoken evaluation…. 98. Surprisingly, there looks to be a paucity of cases addressing the situation of a private citizen actually effecting an arrest when acting as a private security officer. Much case authority relates to the situation of a plain clothes police officer effecting an arrest without warrant, but that is somewhat different to a private security guard attempting to effect a citizen’s arrest, as in the instant case. Nevertheless, the leading authority, Christie v Leachinsky [1947] AC 573, says the same principles that apply to police officers effecting arrests without warrant apply equally to arrests by private citizens (588)

After reviewing cases on arrest Martin J continued: 103 It emerges from those cases, first, that it may not be necessary in the presenting circumstances to verbalise the fact of the intended arrest although that would

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22      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

certainly seem the norm. Nevertheless, the circumstances may render such a communication redundant. Next, there is usually a communication of the basis of an arrest which, however, does not need to be explained to an arrestee in the same detail as an indictment. Nevertheless, the arrested person needs to know what they are alleged to have done: State of New South Wales v Delly [2007] NSWCA 303; (2007) 70 NSWLR 125 [8]‌(Ipp JA). But again, the presenting circumstances may be enough. 104 As a general rule, the accused person is entitled to know the grounds for the arrest, although that might change if the person resists arrest, or flees, or is “caught red-​handed and the crime is patent to high Heaven”: Staskos v Johnson [16], Christie v Leachinsky, 593. Moreover, in Abbassy v Commissioner of Police of the Metropolis [1990] 1 WLR 385,Woolf LJ pointed out that the issue of whether the information conveyed is adequate has to be approached objectively on the basis of what is reasonably available to the arresting officer (or citizen, as here). His Honour gave the example of a police officer explaining the reasons for an arrest to a person who, unbeknownst to the officer, is actually deaf –​the question is “what a reasonable person would have done in the circumstances”: 392. 105 If a citizen’s arrest has been validly executed, and is therefore a lawful use of force, then the arrested person is not entitled to resist. Conversely framed, if a purported citizen’s arrest is incorrectly executed with insufficient words and thereby becomes unlawful, then the affected person is entitled to resist. Such an arrest amounts to an unlawful deprivation of liberty. 106 In light of all this, I will need, in the end, to leave the questions as to the overall lawfulness of Mr  O’Neil’s attempted citizen’s arrest of Mr  Towler to the finder of fact (magistrate) upon any rehearing of the trial.

Use of force Queensland [2.90] 

In Queensland, if the arresting person is a police officer, or a person helping a police officer, the relevant provisions on the use of force are found in PPRA (Qld), ss 614-​616 and, where a citizen makes the arrest, the relevant law is found in CCQ, ss 254, 257-​258, 260 and 266. The arresting officer executing, or attempting to execute, a warrant or lawful arrest, and anyone helping the officer, may use reasonably necessary force against property. This force may be used for purposes such as, but not limited to, forcibly gaining entry to a place or stopping vehicles:  PPRA (Qld), s 614(1). The arresting officer executing, or attempting to execute, a warrant or lawful arrest, or preventing escape from lawful custody, and anyone helping the officer, may use reasonably necessary force against an individual: PPRA (Qld), s  615(1). However, the reasonably necessary force used by the arresting officer does not include force likely to cause grievous bodily harm

or death of an individual: PPRA (Qld), s 615(3). A police officer may only use force that is likely to cause grievous bodily harm or death in critical situations, where the officer reasonably suspects that the offence concerned is one punishable by life imprisonment, or relates to the causing of death or grievous bodily harm:  PPRA (Qld), ss  616(1)-​(4). However, before using such force the officer must first, if practicable, call on the person to stop committing the offence or trying to escape: PPRA (Qld), s 616(5). Where a citizen attempts to make an arrest, but the person being arrested takes flight to escape arrest, it is lawful for the citizen to use reasonably necessary force to prevent flight:  CCQ, s  257(1). However, this does not include force that is likely to cause grievous bodily harm or death: CCQ, s 257(2). During a citizen’s arrest for a breach of peace, the person making the arrest may use reasonable force in order to prevent the breach of peace or offence: CCQ, ss 260. During a citizen arrest, if the person being arrested resists arrest, the person making the arrest may use force reasonably necessary to overcome any force used to resist arrest; which may include lethal force, as PPRA (Qld), s 615(3) only applies to police officers: CCQ, s 254. Once the person has been arrested, the arresting person may use any force that is reasonably necessary to prevent escape after arrest: CCQ, s 258(1). This may include force that is intended or likely to cause grievous bodily harm, but only if the offence that the person was arrested for is one which the person can be arrested for without a warrant: CCQ, s 258(2). Western Australia [2.100] 

In Western Australia, the CIA (WA), s  16(1) provides that a person may use any force that is reasonably necessary in the circumstances to exercise a power under the CIA (WA) or to overcome or prevent resistance to the exercise of any power under this Act. Therefore this requires two aspects: 1

The person must be exercising a power under the CIA (WA) or is responding to resistance by another person to the exercise of any power under the CIA (WA).

2

The force used must be reasonably necessary.

Any force used is subject to the CCWA, Ch  XXVI:  CIA (WA), s  16(3). According to CCWA, s 231(1), any force that is reasonable can be used to overcome resistance to the making of an arrest.This may include lethal force, but of course this must be reasonably necessary in the circumstances. Where a person is in the process of being arrested the person making the arrest may use such force as is reasonably necessary to prevent the person

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24      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

taking flight and avoiding arrest: CCWA, s 233(1). Force that is intended or likely to cause death or grievous bodily harm cannot be used by a citizen in such instances but may be used by a police officer or a person assisting a police officer where: • the person sought to be arrested is reasonably suspected of committing an offence punishable by life imprisonment; and • the person sought to be arrested is called on to surrender before such force is used. Once a person has actually been arrested, the person making the arrest may use any force that he or she has reasonable grounds to believe is necessary to prevent the person escaping: CCWA, s 235(1).This includes the use of force that is intended or is likely to cause grievous bodily harm or death, but only if the offence that the person was arrested for is one that is punishable with imprisonment for 14 years or upwards: CCWA, s 235(2). Note that CCWA, s 260 provides that excessive force (the use of more force than is justified by law under the circumstances) is unlawful. [2.110]  Section 16 of the CIA (WA) was considered in Elwin v Robinson [2014] WASCA 46. The appellant was charged in the Magistrates Court with disorderly behaviour in public, obstructing a public officer in the performance of that officer’s functions and refusing to supply personal details to a police officer. The charges occurred in relation to a physical fight on a public street outside a nightclub. Closed-​circuit television (CCTV) footage showed police officers dragging the appellant away from the second male and trying to place him on the road. The appellant physically resisted these efforts. The CCTV footage then shows the officers kneeing the appellant in the leg to bring him to the ground. This was unsuccessful. A group of officers then forcefully “barrelled” the appellant to the footpath. One of the officers then deployed a taser to the appellant. The whole incident occurred in less than a minute. Mazza JA stated: 58 Section  16 of the CIA provides that a person exercising a power under that Act may use any force that is reasonably necessary in the circumstances to exercise the power and overcome any resistance offered. Section 16 is subject to ch XXVI of the Criminal Code: s 16(3) CIA. The sections in ch XXVI of the Criminal Code which are relevant to this case are s 231 and s 260. Section 231 of the Criminal Code provides that it is lawful for a person engaged in making an arrest (or any person lawfully assisting in that process) “to use such force as may be reasonably necessary to overcome any force used in resisting” that arrest … 61 The question of what force is reasonably necessary to effect an arrest depends upon an objective evaluation of all of the surrounding circumstances. In performing

such an evaluation it must be remembered that the purpose of an arrest is not only as a step in bringing an alleged offender to justice, it is also part of a police officer’s general duty to preserve order: Glanville L Williams, Requisites of a Valid Arrest [1954] Crim LR 6. In this respect, the functions of a police officer include duties to keep the peace, prevent the commission of offences and protect the safety of others (including the alleged offender and police). 62 It must also be borne in mind, when assessing what force is reasonably necessary, that arrests often occur in situations of sudden violence and mayhem. In the context of public disturbances such as street fights, it will frequently be necessary for police to swiftly defuse the situation in order to preserve order and prevent injury. In such situations, it may not be possible or practical for a police officer to stand back and consider which individuals or which group were in the wrong or to make fine judgments about what force is necessary in the circumstances. In these situations, a police officer must have the discretion to act quickly and decisively. In McIntosh v Webster (1980) 43 FLR 112, 123, Connor J put it this way: “Arrests are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the police force as a whole to sit back in the comparatively calm leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances.” 63 This is not to say that police officers are unaccountable and can act with impunity when arresting persons alleged to be involved in public disturbances. Acknowledging the difficulties that police officers face in such circumstances, the actions of police are subject to the scrutiny and judgments of the courts against the yardstick of what was reasonably necessary in all the circumstances of the particular case. [2.120]  The relevant sections of the CCWA were considered in Pargin v Kelly [2012] WASC 68.The respondent (a police sergeant) fired two warning shots above a stolen vehicle during a police pursuit. He was charged with discharging a firearm to the danger of Mr Ningella (the driver of the stolen vehicle) or in a manner to cause him fear contrary to Firearms Act 1973 (WA), s  23(9a). The respondent argued that his actions were reasonably necessary to prevent Mr Ningella’s escape from arrest in accordance with CCWA, s 233.The respondent was acquitted, the appeal against the acquittal was dismissed. Mazza J stated: 72 Section 233 permits the use of force for the purpose of preventing the escape of a person sought to be arrested. It is not disputed that when the warning shots were fired, Mr Ningella was escaping arrest. Section 233 also sets out the degree of force which may be used for that purpose. 73 The overarching limit to the use of force is that it must be no more than is reasonably necessary: s 233(1). Further, force that is intended or is likely to cause death or grievous bodily harm, can only be used by a police officer or someone assisting a police officer and only if the escapee is reasonably suspected of having committed an offence punishable by life imprisonment:  s  233(2). In this case

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26      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

s 233(2) was not engaged because the learned magistrate was not satisfied that the firing of the warning shots was likely to cause death or grievous bodily harm to Mr Ningella. However, s 233(1) was engaged and it is to that subsection that I focus my attention. 74 The words “reasonably necessary” are commonplace in the criminal and civil law: see Thomas v Mowbray [2007] HCA 33; (2007); 233 CLR 307 [20]-​[27]. In the context of s 233(1), they permit a level of force no greater than the situation under consideration reasonably requires. What level of force is reasonably necessary to prevent a suspect escaping arrest is a value judgment to be made by the court having regard to all of the relevant circumstances as they existed and were known by the accused at the time the force was used. 75 Arrests and escapes from arrest occur in widely varying circumstances. It is not uncommon for an escaping suspect to be sufficiently desperate to endanger those who are in pursuit, bystanders or who may get in their way. While the purpose of the use of force is to prevent the suspect escaping arrest, the level of force which may be reasonably necessary to deal with the suspect’s conduct in escaping may be judged by such factors as:

(a) the known dangerousness of the suspect;

(b) the offence or offences that he or she is reasonably suspected of committing;

(c) the behaviour of the suspect while fleeing arrest;

(d) the risk that behaviour posed to the safety of others; and

(e) the risk the use of force posed to the safety of the suspect and others. 76 This list of factors is not intended to be exhaustive.

Detention for questioning and investigation Queensland [2.130] 

A police officer may detain a person for a reasonable time to investigate or question them about an indictable offence for which they have been arrested or an indictable offence the person is suspected of committing: PPRA (Qld), s 403(1). In determining a reasonable detention period, the following factors are taken into consideration (PPRA (Qld), s 404(1)(a)-​(g)): • whether detention is necessary for the investigation of an indictable offence; • the number of indictable offences involved; • the seriousness and complexity of the indictable offence or offences; • whether the person has made a statement to the effect that they will answer questions;

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• the person’s age as well as their physical and mental capacity and condition; • whether there is a need to delay or suspend questioning in order to take time out. The maximum period for which a person may be detained for questioning or investigation is eight hours: PPRA (Qld), s 403(2). The eight hours of detention may be made up of a maximum of four hours of questioning and may consist of more than four hours of time out: PPRA (Qld), s 403(4). The eight-​hour period of detention may be extended by a magistrate or justice of the peace on application by a police officer:  PPRA (Qld), ss 405(1) and 406(1).Where the total questioning time will exceed 12 hours, an application must be made to a magistrate or justice of the peace: PPRA (Qld), s 405(2)-​(3). In considering the application, a magistrate or justice of the peace usually takes into account (PPRA (Qld), s 406(1)(a)-​(d)): • the nature and seriousness of the offence; • whether an extension will preserve evidence relating to the offence or another indictable offence; • whether an extension will enable an investigation of the offence or another indictable offence; • whether an extension will enable further questioning about the offence or another indictable offence; • whether the investigation has been conducted properly and without unreasonable delay; and • whether the person or their lawyer has made a submission about the extension. The detention period commences when the person is arrested for the indictable offence; or taken into police custody under a removal order; or taken from a watch-​house or otherwise in the company of a police officer to be questioned at a watch-​house, prison or detention centre: PPRA (Qld), s 403(5). Western Australia [2.140] 

A person who has been arrested without a warrant may be detained by a police officer or a public officer for a reasonable period for the purposes of doing a search, investigating an offence that the person is suspected of committing, interviewing the suspect in relation to an offence that the person is suspected of committing and deciding whether or not

Chapter 2

• the amount of time taken in questioning before an arrest; and

28      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

to charge the suspect with an offence:  CIA (WA), s  139(2). There is an extensive list of factors in CIA (WA), s  141 which are to be taken into account in determining whether the period of detention is reasonable. These factors include: • the number and complexity of offences to be investigated; • the need to interview potential witnesses; • the time needed to transport the person from where they are arrested to an appropriate interview venue; • the need to assess material relevant to the interview; • any period during which the accused cannot reasonably be interviewed because of intoxication, illness or incapacitation; • the time needed to complete forensic procedures, etc. There is a cap of six hours on the period that will be found to be reasonable from the time of arrest (CIA (WA), s 140(3)); however, this period can be extended by a further six hours (making a total of 12 hours) on application to a senior officer during the first period: CIA (WA), s 140(4). A senior officer may only authorise one extension period. However, if during the extended period an investigating officer considers that more time is needed, he or she may, with written approval of a senior officer, apply to a magistrate for a further extension of eight hours (making a total of 20 hours): CIA (WA), s 140(6). An application can be made to a magistrate for an extension under s 140(6) on more than one occasion (CIA (WA), s 140(8)), which means that the period of detention can go beyond 20 hours. In all cases of extension, the senior officer or the magistrate must be satisfied that detention for the further period is justified.

Rights during questioning and investigation Queensland [2.150] 

When an accused person is questioned by police, they have several rights including the right to: • remain silent: PPRA (Qld), s 397; see Petty and Maiden v The Queen (1991) 173 CLR 95; R v Swaffield (1998) 192 CLR 159; Strickland (A Pseudonym) v Commonwealth Director of Public Prosecutions (2018) 272 A Crim R 69; • communicate with a friend, relative or lawyer: PPRA (Qld), s 418; • have a friend, relative or lawyer present during questioning:  PPRA (Qld), s 419;

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• be informed by a police officer that a relative, friend or lawyer has requested information about the whereabouts of the accused person and a need for a police officer to pass on that information to the relative, friend or lawyer: PPRA (Qld), s 432; • an interpreter: PPRA (Qld), s 433; • communicate with their embassy in the case of a visiting foreign national: PPRA (Qld), s 434; and • be electronically recorded: PPRA (Qld), s 435. To effectively inform the person of their rights and ask questions, the questioning officer should:  make eye-​ contact with the person; not ask questions in a rapid manner; regularly ask the person if they understand; and give the person appropriate time and opportunity to absorb and understand their rights and the questions.The person may betray a lack of understanding of their rights and the questions through: blank looks; discomfort; not being affable; lack of animation; long silences before answering; trouble articulating answers; making statements against their interest and affirmative answers that appear to be just gratuitous concurrence, and are obviously incorrect. If the person does not properly understand their rights, nor the questions, the interview will be unfair and inadmissible as evidence:  R v Casey [2014] QDC 151 at [12], [21], [23], [29] and [35]-​[41]. Other relevant factors that may negatively impact the reliability of the admissions during the interview are the person being distressed and crying when taken to be interviewed by police: R v GAM [2011] QCA 288 at [53] per Fraser JA. Western Australia [2.160] 

All people arrested by an officer have the right (CIA (WA),

s 137(3)): • to any necessary medical treatment; • to a reasonable degree of privacy from the mass media; • to a reasonable opportunity to communicate or to attempt to communicate with a relative or friend to inform that person of her or his whereabouts; and • if he or she is for any reason unable to sufficiently understand or communicate in spoken English, to be assisted in doing so by an interpreter or other qualified person.

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• be cautioned by a police officer: PPRA (Qld), s 431;

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In addition, where a person is arrested on suspicion of committing an offence, they have the right (CIA (WA), s 138(2)): • to be informed of the offence for which they have been arrested and any other offences that they are suspected of having committed; • to be cautioned before being interviewed as a suspect; • to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner; • if he or she is for any reason unable sufficiently to understand or communicate in spoken English, not to be interviewed until the services of an interpreter or other qualified person are available. An officer must inform a person of their rights to communicate or attempt to communicate with a friend or relative or legal practitioner as soon as practicable after the arrest: CIA (WA), s 138(3). The officer must afford the person these rights but can refuse to do so if the officer reasonably suspects that communication would result in (CIA (WA), s 138(4)): • an accomplice doing something to avoid being charged; or • evidence being concealed, disturbed or fabricated; or • a person’s safety being endangered. Then only once the person has communicated that they wish to exercise the rights that they have been informed of (right to a reasonable opportunity to communicate or to attempt to communicate with a relative or friend to inform that person of her or his whereabouts, and to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner), the police officer either needs to refuse the right (if the officer reasonably suspects the occurrence of a situation envisaged by s 138(4)) or facilitate the attempt to communicate. It should also be noted that the police officer need only facilitate the attempt to communicate (aside from those cases where the officer can refuse this right) but this does not mean that a person has the right to have a lawyer present during the interview. In Mackenzie v The Queen (2004) 150 A Crim R 451; [2004] WASCA 146, it was argued that although the right to have a lawyer present during the interview is not guaranteed by the CIA (WA), such a right exists at common law and should be read into the CIA (WA). The court declined “the invitation to legislate to create such a right” because (at [64]): There are obvious practical difficulties involved in the operation of any right to have a lawyer present during an interview. Experience with such interviews over a long period of time has revealed that many –​perhaps most –​accused persons do not know which lawyer they would wish to contact, and police, of course, cannot

advise them in that respect. Even where they do know of a lawyer they would wish to attend, the hour at which the interview is conducted may make contact impracticable, or the lawyer, may be otherwise engaged or unwilling to attend unless some arrangement as to fees has been concluded. It would be necessary, in establishing such a right, to deal with some care with what course should be taken where these practical difficulties presented themselves. That is a task which should be undertaken by the legislature, rather than by the court.

Cockram v Western Australia [2010] WASC 211 at [65]-​[72], Blaxwell J elaborated on the interpretation of this section: [2.170] In

When the particular nature of each of the relevant rights is examined, it is clear that the officer in charge is required to “afford” to the suspect only those rights which are completely within his or her power to fulfil. In respect of the two rights where there is a duty to “inform” the officer alone cannot ensure that they are ultimately fulfilled. In this regard, although the entitlement to a reasonable opportunity to communicate (or to attempt to communicate) exists from the time of arrest, that opportunity can only be provided if and when the suspect desires to exercise the right. Therefore, it is necessary that the suspect express the wish to communicate (with a friend or relative, and/​or with a legal practitioner) before any reasonable opportunity can be afforded. It is quite sensible and logical that s 138 does not explicitly require the officer in charge to “afford” those rights at a time when he or she is not necessarily in a position to do so. It is also logical that the officer is required to provide information on the existence of the rights which otherwise might not be known to the suspect. Without that knowledge the suspect would not be in a position to exercise the rights. Although s 138 is silent as to the duty of an officer when a suspect expresses the wish to exercise one of the rights of communication, the Act clearly requires that there be a reasonable opportunity for the suspect to do so. Given that s 139(3) provides that an arrested suspect is to be detained in the company of an officer, any reasonable opportunity to communicate can only occur with the cooperation of that officer (eg by the provision of a telephone and telephone book). In my view, it is significant that s 138(4) refers to a “right to communicate or to attempt to communicate” as distinct from a “reasonable opportunity” to do so. This conversion in the nature of the rights conferred by s 137(3)(c) and s 138(2) (c) occurs in the context of the circumstances in which an officer may “refuse” an arrested suspect that right. Clearly a refusal can only occur in response to a request by an arrested suspect to be able to exercise the right. In light of these considerations it is my opinion that when the Act (and particularly s 137, s 138 and s 139) is construed as a whole, an arrested suspect’s right to communicate arises as soon as he or she expresses the wish to exercise that right. In the absence of any reasonable suspicion under s 138(4) the officer then detaining the arrested suspect is obliged to facilitate the exercise of that right. In the present case, Green did not at any time (prior to or in the course of the first interview) express or indicate any desire to exercise his right to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner.

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At most, he simply ruminated as to whether or not he should do so. In response to what Green said in that respect, Detective Marshall offered him the choice and stated that he could contact a lawyer if he wished. However, Green did not express any such wish. It follows that there was no breach of s  138(3), and that there is no basis for excluding Green’s first interview under s 154 of the Act. It also follows that the first interview should be received into evidence.

Note: an appeal from this case was dismissed. Green v Western Australia [2011] WASCA 178. McLure P also considered the meaning of s 138(2)(c) in Wright v the State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1; 203 A Crim R 339 at 346-​348 [29]-​[30] and [32]-​[34]: 29 The proper construction of s 138(2)(c) is not without difficulty.What is relatively clear is that it is not the source of any duty imposed on police. Sections [sic] 138(3)(a) is the source of the duty on police. The two provisions have to be read together to determine the scope of the duty on police in relation to a suspect’s right under s 138(2)(c). The only express duty on police is to inform the suspect of his right to communicate with a lawyer. That is to be contrasted with the obligation of the officer in charge under s  138(3)(b) which is to afford the suspect his or her other rights under s 137 and subs (2). The word “inform” means tell and the word “afford” means supply or furnish. The word “other” can only mean other than the provisions expressly referred to in s  138(3)(a), which includes s  138(2) (c). Accordingly, the officer in charge is under a duty to caution the suspect or if the suspect is unable to understand or communicate in English, to provide an interpreter. The only obligation of the officer in charge in relation to s  138(2) (c) is to inform the suspect of his entitlement to a reasonable opportunity to communicate with a legal practitioner. However, what is a reasonable opportunity will depend on all the circumstances, including the suspect’s access to the means to communicate. Thus there is every practical incentive on police to permit access to the means necessary to facilitate communication. 30 Although the officer in charge is not obliged to supply or furnish an arrested suspect with any facilities (for example, a telephone or a telephone directory) which are reasonably necessary for the suspect to take advantage of his or her entitlement under s  138(2)(c) (namely, a reasonable opportunity to communicate or attempt to communicate with a legal practitioner), police must not by any act or omission prevent the suspect’s exercise of that entitlement. … 32 If an arrested suspect wishes to take advantage of his or her entitlement to a reasonable opportunity to communicate or attempt to communicate with a legal practitioner, what will constitute a “reasonable opportunity” will, of course, depend on the particular facts and circumstances of each case. But, ordinarily, the “reasonable opportunity” will include the suspect travelling in the company of a police officer (see s 139(2) and (3)) to obtain access (if necessary) to a telephone and a telephone directory within the vicinity of the place where the suspect is being detained.

33 The next issue is whether the opportunity to communicate must be prior to interview. Construing s 138(2)(c) in its broader context, there is no such requirement. There is no express provision to that effect nor can such a requirement be implied having regard to paras (b) and (d) of s 138(2), both of which expressly provide that the right be afforded prior to interview. The omission in s 138(2)(c) is explicable on the basis that under s 138(2)(b) a suspect must be cautioned before being interviewed as a suspect.The caution (that the suspect does not have to say anything but anything he does say would be recorded and may be given in evidence) sufficiently protects the interests of the suspect. A suspect who wishes to communicate with a lawyer, will be aware that he is not obliged to answer any questions. Further, the practical effect of the obligation in s 138(3)(a) to inform the suspect of his right to communicate with a lawyer as soon as practicable after arrest will ordinarily require that the information be provided prior to interviewing the suspect. 34 What is a “reasonable opportunity” will be assessed from the time the suspect was informed of his right to communicate with a lawyer (or perhaps earlier if it is established that the suspect was otherwise aware of his rights). However, it is entirely a matter for the suspect as to whether or not he wishes to exercise the right. Thus, what is a reasonable opportunity will depend upon the suspect’s attitude to communicating with a lawyer. If the suspect expressly or impliedly indicates that he does not want to do so, no further time is required.

Blaxell J (pp 371-​372) [158]-​[164]: 158 On a literal reading of s 138(3) the obligation on the officer in charge would be simply to inform the suspect of the rights of communication and not to afford the suspect those rights. However, in my view this literal construction cannot be correct because it would contradict the underlying legislative intent that arrested suspects be able to exercise the rights conferred by the Act. Accordingly, it is necessary to find an alternative construction, and in my opinion the key to a proper construction is to be found in what must be the underlying reason for the differentiation in the duties imposed on the officer in charge under s 138(3). 159 When the particular nature of each of the relevant rights is examined, it is clear that the officer in charge is required to “afford” to the suspect only those rights which are completely within his or her power to fulfil. In respect of the two rights where there is a duty to “inform” the officer alone cannot ensure that they are ultimately fulfilled. 160 In this regard, although the entitlement to a reasonable opportunity to communicate (or to attempt to communicate) exists from the time of arrest, that opportunity can only be provided if and when the suspect desires to exercise the right. Therefore, it is necessary that the suspect should wish to communicate (with a friend or relative, and/​or with a legal practitioner) before any reasonable opportunity can be afforded. 161 It is quite sensible and logical that s  138 does not explicitly require the officer in charge to “afford” those rights at a time when he or she is not necessarily in a position to do so. It is also logical that the officer must first provide information on the existence of the rights which otherwise might not be known to the suspect. Without that knowledge the suspect would not be in a position to exercise the rights.

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162 Although s 138 is silent as to the duty of an officer when a suspect expresses the wish to exercise one of the rights of communication, the Act clearly requires that there be a reasonable opportunity for the suspect to do so. Given that s 139(3) provides that an arrested suspect should ordinarily be detained in the company of an officer, any reasonable opportunity to communicate can only occur with the cooperation of that officer (eg by the provision of a telephone and telephone book). 163 In my view, it is also significant that s 138(4) refers to a “right to communicate or to attempt to communicate” as distinct from a “reasonable opportunity” to do so. This conversion in the nature of the rights conferred by ss  137(3)(c) and 138(2)(c) occurs in the context of the circumstances in which an officer may “refuse” an arrested suspect that right. Clearly such a refusal can only be in response to a request by an arrested suspect to be able to exercise the right. 164 In light of these considerations it is my opinion that when the Act (and particularly ss 137, 138 and 139) is construed as a whole, an arrested suspect’s right to communicate arises as soon as he or she expresses the wish to exercise that right. In the absence of any reasonable suspicion under s 138(4) the officer then detaining the arrested suspect is obliged to afford the suspect that right

However, it is questionable whether measures such as the mere provision of a telephone book would be enough. See JWRL v Western Australia [2009] WASC 285 at [88] per Blaxell J: As I have already observed, the detectives also failed to comply with s 138(3)(b) of the Criminal Investigation Act. Detective Reeder was aware that Mrs L would have difficulty in contacting a lawyer on the weekend, and it was not enough to provide her with the Yellow Pages along with the opportunity of making fruitless calls on the telephone. There was no urgency in proceeding with the second interview, and it could easily have been deferred until the Monday morning when a lawyer would have been readily available. In these circumstances, the accused was not afforded a reasonable opportunity to communicate with a legal practitioner, which also caused manifest unfairness. [2.180] 

Even though the police officer only has to facilitate a reasonable opportunity to communicate, there may be consequences as a result of a lawyer not being present when a person is interviewed (Mackenzie v The Queen (2004) 150 A Crim R 451; [2004] WASCA 146 at [65]): The disregarding of such a request will often mean that it will be unfair to an accused person to admit in evidence an interview which has taken place in the absence of a legal practitioner.

Thus, if a request to have a lawyer present is refused, the court may take this into account in determining whether to exercise its discretion under CIA (WA), ss 154 and 155 and exclude evidence obtained in the interview. This is because an interview with police and the record of that interview are things “relevant to an offence”. Therefore, evidence of such an interview is inadmissible under s  154 if it was obtained in the purported exercise of a power conferred by the Act and there was a contravention of any

requirement in relation to the exercise of that power: see Wright v Western Australia [2010] WASCA 199; (2010) 43 WAR 1; 203 A Crim R 339. At common law, an arrested person also has the right to remain silent: Petty and Maiden v The Queen (1991) 173 CLR 95. The CIA (WA) does not expressly provide for this right, but s 7 states that the powers, duties and responsibilities that a police officer has under common law also apply under the CIA (WA). In the event of any inconsistency with the common law, the provisions of the CIA (WA) prevail.

Questioning particular persons Aboriginal and Torres Strait Islander people [2.190] 

In Queensland, where a police officer reasonably suspects that an adult Aboriginal or Torres Strait Island person’s level of education and understanding is disadvantaged compared to members of the Australian community generally, the police officer must notify a representative of legal aid that they have an Aboriginal or Torres Strait Island person in custody, unless the person in custody has arranged for their lawyer to be present during questioning: PPRA (Qld), s 420(1)-​(3). The assessment and determination of an Aboriginal or Torres Strait Islander’s level of education, relative disadvantage and understanding, must be conducted prior to commencing the formal interview and questioning: R v Casey [2014] QDC 151 at [33]. Considerations when making this prior determination may include, but are not limited to, the person’s:  capacity to effectively communicate answers to questions and understand their rights, level of schooling completed, reading and writing ability and English language fluency: R v Sailor [2012] QCA 246 at [56]-​[62]. If practicable, an Aboriginal or Torres Strait Island person is entitled to speak to a support person prior to questioning, in a place where the conversation will not be overheard, and have the support person present during questioning:  PPRA (Qld), s  420(4)(a)-​ (b). Police failing to provide a support person prior to and/​or during the interview may cause misunderstandings of rights and questions, gratuitous concurrence, and may be grounds for the police interview being unfair and inadmissible as evidence:  R v Casey [2014] QDC 151 at [35]-​[41]. However, a police officer may exclude the support person if they are unreasonably interfering in the questioning:  PPRA (Qld), s  420(6). An Aboriginal or Torres Strait Islander may waive their right to a support person in writing or through an electronically recorded waiver: PPRA (Qld), s 420(5).

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Circumstances that would make it practicable for the questioning officer to provide a support person may include, but are not limited to:  there is nothing preventing the officer from contacting a support person; or the police station has a contact list of support persons; or there is a Aboriginal and Torres Strait Islander Legal Service (ATSILS) within reasonably close proximity to the police station and available at the time of the interview: R v Casey [2014] QDC 151 at [22]. In Western Australia, the CIA (WA) does not contain specific provisions relating to the questioning of Aboriginal and Torres Strait Island people. The Law Reform Commission of Western Australia has commented in Aboriginal Customary Laws: Final Report that the rights guaranteed under the CIA (WA), ss 137 and 138 do not go far enough to address the disadvantages that Aboriginal people face in police interrogations. However, guidelines developed in the case of R v Anunga (1976) 11 ALR 412 on the interrogation of Aboriginal and Torres Strait Island people, which also influenced the requirement in the PPRA (Qld), are referred to in The Aboriginal Benchbook for Western Australian Courts of the Supreme Court of Western Australia (at [7.6.3]):

1 When an Aboriginal person is being interrogated as a suspect, unless he is fluent in English as the average white man of English descent, an interpreter … should be present.



2 When an Aboriginal is being interrogated it is desirable where practicable that a “prisoner’s friend” (who may also be the interpreter) is present. He may be a mission or settlement superintendent or a member of the staff of one of the institutions who knows and is known by the Aboriginal. He may be a station owner, manager or overseer or an officer from the Department of Aboriginal Affairs.The combinations of persons and situations are variable and the categories of persons I have mentioned are not exclusive. The important thing is that the “prisoner’s friend” be someone in whom the Aboriginal has apparent confidence, by whom he will feel supported.



3 Great care should be taken in administering the caution when it is appropriate to do so. It is simply not adequate to administer it in the usual terms and say “do you understand that?” or “Do you understand that you do not have to answer questions?” Interrogating police officers, having explained the caution in simple terms, should ask the Aboriginal to tell them what is meant by the caution, phrase by phrase, and should not proceed with the interrogation until it is clear the Aboriginal has apparent understanding of his right to remain silent … The problem of the caution is a difficult one but the presence of a prisoner’s friend or interpreter and adequate and simple questioning about the caution should go a long way towards solving it.



4 Great care should be taken in formulating questions so that so far as possible the answer which is wanted or expected is not suggested in any way …



5 Even when an apparently frank and free confession has been obtained relating to the commission of an offence, police should continue to investigate the matter in an endeavour to obtain proof of the commission of the offence from other sources …



6 Because Aboriginal people are often nervous and ill at ease in the presence of white authority figures like policemen it is particularly important that they be offered a meal … when a meal time arrives.They should also be offered tea or coffee … [or] a drink of water. They should be asked if they wish to use the lavatory …



7 It is particularly important that Aboriginal and other people are not interrogated when they are disabled by illness or drunkenness or tiredness …



8 Should an Aboriginal seek legal assistance reasonable steps should be taken to obtain such assistance …



9 When it is necessary to remove clothing for forensic examination or the purposes of medical examination, steps must be taken forthwith to supply substitute clothing.

These guidelines are not rules of law which, if breached, will mean that any material gathered during questioning will be regarded as inadmissible; rather they are “a useful yardstick in assessing the fairness of a confessional statement”: (at [7.6.4]). In Webb v The Queen (1994) 13 WAR 257 at 259, it was stated that the Anunga rules “are essentially guidelines indicating what is required by way of fairness when a person of Aboriginal descent is being questioned by police”. Thus, where the guidelines are not adhered to, a court may take this into account in determining whether to exercise its discretion under CIA (WA), s 154 and exclude any evidence obtained during an interrogation. Note that the effect of a breach of the Anunga Rules was considered in The State of Western Australia v Gibson [2014] WASC 240 at [162] per Hall J: The Anunga Rules are not law in Western Australia however they do give a very good indication of what ordinarily would be regarded as a fair interrogation: Webb (1994) 74 A Crim R 436, 438 (Malcolm CJ). It is no doubt for this reason that they have been adopted in the COPs manual. Breaches of the Anunga Rules may be relevant to an assessment of the voluntariness of confessional evidence by an Aboriginal person in this State.

Children [2.200] 

In Queensland, for the purposes of the criminal justice system, a child is defined as “a person who has not turned 17 years” or “a person who has not turned 18  years”:  Youth Justice Act 1992 (Qld) (YJA (Qld)),

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38      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Sch 4, definition “child” (a)-​(b); R v GAM [2011] QCA 288 at [50]. For a person who has attainted 17 years, but not yet 18 years, the determination of whether or not the person is a child under the law is at the discretion of the Governor in council: YJA (Qld), s 6(1). In Queensland, if practicable, children have the right to speak to a support person in a place where the conversation will not be overheard, prior to being questioned by police, and have a support person present during police questioning: PPRA (Qld), s 421(2)(a)-​(b). A child cannot choose a person against whom the offence is alleged to have been committed as a support person:  PPRA (Qld), s  421(3). A  police officer may exclude the support person if they are unreasonably interfering in the police questioning: PPRA (Qld), s 421(4). In R v GAM [2011] QCA 288, the child in was not given the opportunity to speak to a support person before police questioning or have a support person present during police questioning. President  McMurdo suggested that: [49] [T]‌here is a real possibility that the 17 year old appellant made a false confession at a time when he was frightened, overwrought and suggestible about events which occurred. [51] If the appellant had spoken to a support person or his parents before the police interview, he may not have made these unreliable admissions and the resulting unfortunate consequences, including a costly trial and appeal, may have been avoided.

In Western Australia, the CIA (WA) does not contain any specific provisions relating to the questioning of young people. However, the Young Offenders Act 1994 (WA) (YOA (WA)), s  8 provides that responsible adults should be involved in the disposition of allegations of offences by the young person under their care. Section  20 of the YOA (WA) requires that if a police officer wishes to ask a person under 18, who has been apprehended for the commission of an offence, any questions about that offence or any other offence the officer suspects the child has committed, the police officer must ensure that a responsible adult has received notice of this intention, unless a responsible adult cannot be found or there are circumstances in which notification would be inappropriate. A responsible adult is a parent or guardian or another person having responsibility for the day-​to-​day care of the young person: YOA (WA), s 3. In Nicholls v Woods (2000) 118 A Crim R 59; [2000] WASCA 373 at [16], it was made clear that a responsible adult only needs to be notified when the police officer intends to ask a question about an offence, not if the officer asks a neutral question. In this case, a 16-​year-​old child found with a knife was asked the question, “What’s a knife for?” This was found to be a neutral question, which did not relate to an offence.

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[2.210] 

In Queensland, pursuant to PPRA (Qld), Sch 6:

person with impaired capacity means a person whose capacity to look after or manage his or her own interests is impaired because of either of the following:

(a) an obvious loss or partial loss of the person’s mental functions;

(b) an obvious disorder, illness or disease that affects a person’s thought processes, perceptions of reality, emotions or judgment, or that results in disturbed behaviour.

In Queensland, if a police officer reasonably suspects a person has impaired capacity, if practicable, the person is entitled to speak to a support person in a place, where the conversation will not be overheard, prior to being questioned by police and have a support person present during questioning: PPRA (Qld), s 422(1)-​(2). If, at any time during the questioning, it becomes apparent that the person has impaired capacity, the officer must suspend the questioning and allow the person to speak to a support person and have the support person present during the questioning: PPRA (Qld), s 422(3). In Western Australia, the CIA (WA) does not contain any specific provision regarding the questioning of persons of impaired capacity. However, the Mental Health Act 1996 (WA) (MHA (WA)), s 196 provides that if the police officer has arrested a person for an offence and suspects on reasonable grounds that the person has a mental illness that needs immediate treatment, the officer should arrange, as soon as is practicable, for an examination to determine whether the person should be made an involuntary patient. Intoxicated persons [2.220] 

Where a person is under the influence of liquor or a drug, a police officer must delay the questioning until the person is no longer affected: PPRA (Qld), s 423(2).The police also have the power to detain and transport an intoxicated person to sober safe centre: PPRA (Qld), s 390E(2). History has shown that overwrought and suggestible young men on rare occasions may make false confessions about matters which have occurred when their memory has been affected by drunkenness: R v GAM [2011] QCA 288, [47].

The CIA (WA) does not contain any specific provision on the questioning of a person who is intoxicated. However, one of the factors determining a reasonable time for detention is CIA (WA), s 141(k): “any period when it is not reasonable to interview or conduct other investigations with the suspect because the suspect is intoxicated, ill or incapacitated”.

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Persons with impaired capacity

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Cautioning and recording of questioning Queensland [2.230] 

Before questioning a person, a police officer must caution the person in a language they can understand with reasonable fluency; or given in writing, if the person cannot hear adequately: PPRA (Qld), s 431(1)-​(2). If the police officer reasonably suspects that the person does not understand the caution, they must explain it further and may ask the person to explain it in their own words: PPRA (Qld), s 431(3)-​(4). An example of appropriate wording for a caution is provided in Police Powers and Responsibilities Regulations 2012 (Qld) (PPRR (QLD)), Sch 9, ss 22 and 28. The effect of not complying with PPRA (Qld), s 431 was reinforced in R v Purnell [2012] QSC 60 at [7]‌where Dalton J stated: Non-​compliance with s  431 does not automatically exclude a statement made before the warning was given. It allows exclusion of the evidence in the exercise of judicial discretion to ensure a fair trial.The public interest in bringing to conviction those who commit criminal offences must be weighed against the public interest in having an individual treated fairly and lawfully by police officers.

The person is entitled to have the caution, and the information given by a police officer to them and their response electronically recorded: PPRA (Qld), s 435. Where practicable, questioning must be electronically recorded: PPRA (Qld), s 436. In the event of a confession, where the confession or admission is recorded in writing, the police officer must also electronically record a reading of the confession and/​or admission to the person, as well as providing them with a copy of the written record. However, in some circumstances, it may not be practicable to record the confession, such as a confession that is made at a crime scene. In addition, the person must also be provided with an opportunity to highlight any errors in the written record and their response must be electronically recorded: PPRA (Qld), s 437(4)-​(7). Western Australia [2.240] 

In Western Australia, before being questioned, a person has the right to be cautioned: CIA (WA), s 138(2)(b). This is to remind the person that they have the right to remain silent but that if they do say anything this will be recorded and can be used in evidence: Marshall v Western Australia [2008] WASC 99. If the person is unable to understand what is said, or is unable communicate in spoken English, then they should not be interviewed until the services of an interpreter are available: CIA (WA), s 138(2)(d).

Note that the obligation to give a caution will not be satisfied if the suspect does not understand the caution. As was stated in The State of Western Australia v Gibson [2014] WASC 240 at [146]-​[147] per Hall J: The obligation to administer a caution to an arrested suspect will not be satisfied by merely reciting the relevant phrases in the presence of that suspect. The caution must be understood by the suspect in order for it to be relevant to the question of voluntariness. In the case of a suspect who has an insufficient understanding of English this means that an interpreter should be used to explain the caution: s 10 CIA. Asking the suspect to then explain in their own words what the caution means will ensure that the suspect understands their rights. It is also worth noting that the caution should be given in clear and unequivocal terms. Contradictory messages may undermine the force and effect of the caution.

In Western Australia, interviews are to be recorded. Where a person is a suspect for an offence and he or she makes an admission, to be admissible in evidence this must generally have been audiovisually recorded: CIA (WA), s 118(3). In determining what a suspicion is, in The State of Western Australia v Gibson [2014] WASC 240 at [38] per Hall J (citing George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 115) it was stated that: “Facts which can be the basis of a reasonable suspicion may be insufficient to ground a belief. A suspicion must have some factual basis but it may be merely a positive feeling of actual apprehension or mistrust or a slight opinion without sufficient evidence to establish it.” The question of whether a person is suspected of having committed an offence is a factual question determined objectively. An honest but mistaken belief by a police officer as to the status of the person who allegedly made the unrecorded admission will not avoid the operation of s 118. For example, police may make a decision to treat an accused as a witness rather than a suspect and therefore not audiovisually record an interview. If this decision is “plainly wrong”, then s 118 will still apply (see The State of Western Australia v Gibson [2014] WASC 240 at [44], [177] per Hall J). Note: for the purposes of the section, “admission” means an “admission made by a suspect to a police officer or a CCC officer, whether the admission is by spoken words or by acts or otherwise”. There is some contention as to whether it is enough that an admission is made in the presence of a police officer but directed to someone else. In Wright v Western Australia Blaxell J found that it was sufficient at 367 [136]. In contrast, McLure P (with whom Buss JA agreed) found that this was insufficient at 351-​352. Where a person is a suspect and the admission is not audiovisually recorded, it will only be admitted in evidence where the prosecution proves on the balance of probabilities that there is a reasonable excuse for the

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42      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

lack of recording or the court uses its discretion under s 155 to allow the evidence: CIA (WA), s 118(3). A reasonable excuse may be that: • the admission was made when it was not practicable to make an audiovisual recording of it. This involves an inquiry into the means and resources available to accomplish it. Wright v Western Australia per Blaxell J at 369 [148] and 370 [152]: This determination as to “practicability” must necessarily be made in hindsight based upon the investigating officers’ knowledge of the relevant circumstances prior to the admission being made … In the end, the essential question is whether it would have been reasonable for the investigating officer to have had audio visual equipment and personnel on hand ready to record the admission, at the time, and in all of the circumstances in which it was in fact made. If the answer to that question is in the negative, then the admission was made when it was “not practicable” to make an audiovisual recording of it.



In that case it was not practicable to make a recording of an admission spontaneously made by the appellant after detectives had entered the house to secure the premises and take the appellant into custody, rather than to question the appellant;

• equipment to record could not be obtained while it was reasonable to detain the suspect; • the suspect did not consent to recording; or • the equipment used to record malfunctioned. However, this is not exhaustive (Wright v Western Australia Wright v the State of Western Australia at 369 per Blaxell J). If a provision of the CIA (WA) allows the court to make a decision that certain evidence is not admissible, then CIA (WA), s 155 is applicable. This provides that a court may admit such evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting it: CIA (WA), s 155(2). In making such a determination, the court is to consider the following (CIA (WA), s 155(3)): • any objection to the evidence being admitted by the person against whom the evidence may be given; • the seriousness of the offence in respect of which the evidence is relevant; • the seriousness of any contravention of this Act in obtaining the evidence; • whether any contravention of this Act in obtaining the evidence –​ (i) (ii)

was intentional or reckless; or arose from an honest and reasonable mistake of fact;

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• any other matter the court thinks fit. In The State of Western Australia v Yarran [2014] WASC 1, Simmonds J set out principles that are relevant to the application of s 155 at [80]. These were summarised by Corboy J in Western Australia v Corbett at [73]:

(a) the factors identified in s 155(3) are both mandatory and exhaustive;

(b) the burden of persuading the court to exercise the discretion under s 155(2) rests on the prosecution (c) disputed questions of fact relevant to the application of the factors identified in s 155(3) are to be determined on the balance of probabilities; (d) questions concerning the fairness and reliability of admitting the evidence are relevant to s 155(3)(a); (e) the greater the seriousness of the offence the more likely it is that the court will admit the evidence in its discretion; (f) conversely, the more serious the contravention of the provisions of the Criminal Investigation Act, the more likely it is that the court will exclude the evidence; (g) the greater the probative value of the evidence, the more likely the evidence will be admitted.

Bail [2.250] 

Where a person has been accused of an offence and arrested, they may be released from custody while they are awaiting trial under bail proceedings. Bail is a process of ensuring that people accused of an offence are not deprived of their liberty until it is decided whether they are guilty of the offence. Bail Act 1980 (Qld) (BA (Qld)), s 9. Bail is therefore consistent with the fundamental principle of criminal law that a person should be presumed innocent until their guilt is established beyond reasonable doubt: Strong v Woolworths Ltd (2012) 246 CLR 182 at [50]-​[54] per Heydon J; Woolmington v DPP [1935] AC 462 at 481 per Viscount Sankey. Bail is granted where a person agrees in writing that they will attend court when specified and abide by any other bail conditions imposed.There may also be a requirement that a certain sum of money will be paid if the person breaches the bail conditions. There is no absolute right to bail. The bail process balances the right of the person to be free until a determination of guilt is made and the need for the community to be protected. Thus, bail may not be granted where there is a high risk that the person will not attend court for the trial, where there is a risk that the person will commit further

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• the probative value of the evidence (this by itself cannot justify admission: CIA (WA), s 155(4));

44      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

offences or interfere with witnesses if not detained in custody. A person who is refused bail will be remanded in custody: BA (Qld)), ss 7, 11, 14 and 17. Power of a police officer or watch-​house manager to grant bail [2.260] 

In Queensland, a police officer or watch-​house manager may grant bail; and if they refuse bail, they must take the person before a court as soon as reasonably practicable: BA (Qld), ss 7(1)-​(2) and (5); PPRA (Qld), s 393(1). In Western Australia, the police officer or other person making the arrest must, as soon as is practicable after charging the accused or making an arrest under warrant, either bring the accused before a court or consider whether to grant bail, if they have the power to grant bail: Bail Act 1982 (WA) (BA (WA)), s 6(4). If the arresting officer does not have the power to grant bail, he or she must bring the accused before an authorised police officer or a justice who must consider the case for bail: BA (WA), s 6(6). Power of a court to grant bail [2.270] 

In Queensland, a court may grant bail to a person held in custody where he or she is waiting for criminal proceedings to commence, or for a “222 appeal” from the Magistrates Court to the District Court. Bail may also be granted where the court has adjourned the criminal proceedings, or the person has been committed or remanded: BA (Qld), s 8(1)(a); Justices Act 1886, s 222.The court also has the power to vary, revoke or enlarge bail that has been granted: BA (Qld), s 8(1)(b). Only the Supreme Court of Queensland or a judge of the Supreme Court of Queensland may grant bail to a person who has been convicted of an offence under the CCQ and who may be sentenced to mandatory life imprisonment or an indefinite sentence under the Penalties and Sentences Act 1992, pt 10: BA (Qld), s 13(1). In Western Australia, generally whenever a court is called upon to order a person’s detention in custody, that court should consider the person’s case for bail whether or not the person applies for bail:  BA (WA), s  7. This rule does not apply in cases where an adult or child is accused of murder. Only a judge of the Supreme Court can consider bail for an adult accused of murder upon application by the accused or someone on behalf of the accused: BA (WA), ss 7B and 15.Where a child is accused of murder, a judge of the Children’s Court must consider an application for bail whether or not

the child applies for bail: BA (WA), ss 7C and 15. A further exception to the general rule in BA (WA), s 7(1) is that when a person has been refused bail in proceedings prior to the trial, and then the person stands trial but the trial extends beyond one day, the court does not need to consider releasing the person on bail pending the continuation of the trial unless the person, or someone on her or his behalf, applies for bail: BA (WA), s 7E. Refusing bail Queensland [2.280] 

In particular circumstances, a police officer may refuse to grant a person bail after conducting a mandatory investigation into whether or not to grant bail: BA (Qld), s 7(2) and (5). In particular circumstances, a court may refuse to grant a person bail or revoke bail that has been granted: BA (Qld), s 8(1)(b) and (2). A police officer or court must refuse to grant bail where there is an unacceptable risk that the person would (BA (Qld), s 16(1)(a)): • fail to appear and fail to surrender into custody; • commit an offence while on bail; • endanger the safety or welfare of an alleged victim or another person while on bail; or • interfere with witnesses while on bail; or obstruct the course of justice while on bail. In addition, bail may be refused if the person should remain in custody for their own protection: BA (Qld), s 16(1)(b). Section 16(2)(1)-​(e) of the BA (Qld) states that, in assessing whether there is unacceptable risk, the police officer or court should take into account the: • nature and seriousness of the offence; • accused person’s character, antecedents, associations, home environment, employment and background; • history of the accused person’s previous grants of bail; • strength of evidence against the accused person; and • if the person is an Aboriginal person or Torres Strait Islander, any submissions made by a representative of a community justice group about the person’s relationship with their community, cultural considerations, and the services and programs in which the community justice group participates.

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It is important to note that “unacceptable risk” is not founded on “innocence”. While there is always a risk that misconduct may occur when a person is free in society, the question is whether the risk constitutes an “unacceptable risk” and this does not depend on the “presumption of innocence” or a determination of innocence or guilt: Williamson v DPP [2001] Qd R 99 at [22]. In some situations, the onus of proof is on the accused person to “show cause” why continued detention is not justified:  BA (Qld), s  16(3)(a)-​(f), these situations include where the accused person: • has breached bail; • been charged with an offence that carries a penalty of mandatory life imprisonment or an indefinite sentence;  • been charged with an indictable offence using a firearm, offensive weapon, or explosive substance;  • been charged with an offence against the BA (Qld);  • been charged with an offence against the Penalties and Sentences Act 1992, s 161ZI; or • been charged with aggravated stalking pursuant to CCQ, s 359(2). Western Australia [2.290] 

The decision whether to grant bail to a person who is in custody awaiting an appearance on trial to determine whether they will be convicted for an offence is at the discretion of the judicial officer or authorised officer. That discretion is to be exercised having regard to the following questions and any other questions the officer considers relevant (BA (WA), Sch  1, Pt C, cl 1):

(a) whether, if the accused is not kept in custody, he may –​



(i) fail to appear in court in accordance with his bail undertaking;



(ii) commit an offence;



(iii) endanger the safety, welfare, or property of any person; or



(iv) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;

(b) whether the accused needs to be held in custody for his own protection; (c) whether the prosecutor has put forward grounds for opposing the grant of bail; (d) whether, as regards the period when the accused is on trial, there are grounds for believing that, if he is not kept in custody, the proper conduct of the trial may be prejudiced;

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(i) sufficiently remove the possibility referred to in paragraphs (a) and (d);



(ii) obviate the need referred to in paragraph (b); or



(iii) remove the grounds for opposition referred to in paragraph (c);



(f) where the accused is charged with an offence that is alleged to have been committed in respect of a child, whether a condition should be imposed under Part D requiring the accused to reside at a place other than the place where the child resides;

(g) whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.

In considering whether the accused may do any of the things listed in cl 1(a), the officer must have regard to BA (WA), Sch 1, Pt C, cl 3: (a) the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted; (b) the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused;

(c) the history of any previous grants of bail to him; and

(d) the strength of the evidence against him.

The approach to be taken was discussed in Milenkovski v Western Australia [2011] WASCA 99; (2011) 42 WAR 99. It is clear from the text and purpose of the BA (WA) as a whole that it is intended to be a comprehensive code on the subject of bail. There the Act was intended to abolish the common law. McLure P stated at [39]-​[41]: The court is required to consider and answer the mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power. … [w]‌ith the exception of para (e), all of the mandatory questions are directed to whether there are positive grounds for refusing bail. The matters in (e) go to the question of whether it is possible to neutralise, wholly or sufficiently, the positive grounds for refusing bail. The court is not required to consider questions directed to whether there are positive grounds for granting bail. The focus of the questions, which direct attention to whether there are proper grounds to refuse bail, is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty. The Bail Act does not in terms place any legal onus on any party to a bail application. However, in those circumstances where the bail application is to be determined under cl 1, the consequence of its structure is that bail would have to be granted if there is no material before the court providing a proper foundation for

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(e) whether there is any condition which could reasonably be imposed under Part D which would –​

48      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

refusing bail. Thus, as a practical matter, it will often be left to the State to provide the material required to provide a proper foundation for refusing bail.

In Quaid v The State of Western Australia [2013] WASC 228 at [13] Edelman J summarised the principles set out in Milenkovski v Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [footnotes omitted]:

1 The Bail Act is a Code in a sense that it is intended to displace the common law.



2 In circumstances such as those in this application, the text and purpose of the Bail Act is inconsistent with the common law approach in general and the requirement that the accused establish exceptional circumstances in order to obtain bail.



3 As to the general provision in cl 1 of pt C, that clause contains no express statutory presumption for or against the bail. The only clauses of pt C, sch 1 of the Bail Act which provide for a (rebuttable) statutory presumption against the grant of bail are cl 3A, cl 3C and cl 4A. None of those clauses is relevant to this application. The only situation where there is a (rebuttable) statutory presumption in favour of bail is cl 2 of pt C of sch 1. That clause does not apply to this application.



4 The Bail Act does not place any legal onus on any party to a bail application. However, in circumstances where a bail application is to be determined under cl  1, the consequence of the structure of that clause is that bail would be granted if there is no material before the Court providing a proper foundation for refusing bail. Thus, as a practical matter, it will often be left to the State to provide the material required to provide a proper foundation for refusing bail.



5 The grant or refusal of bail is at the discretion of the person vested with jurisdiction who is required to have regard to the questions in pars  (a)(g) and to any other questions which the decisionmaker considers relevant. The correct approach to the exercise of the discretion is sourced in and guided by the matters in pars (a)(g). The mandatory answers to the “questions” in those paragraphs and other relevant questions of findings provide the factual basis for the exercise of the discretion.The Court is required to consider and answer the mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.



6 The Court is not required to consider questions directed to whether there are positive grounds for granting bail.



7 Paragraphs  (a) and (d)  of cl  1(a) are concerned with the possibility of the relevant event occurring. In answering that, and other questions in cl 1(a), the Court must have regard to all the matters in cl 3(a), (b), (c) and (d) of pt C.



8 The seriousness of the offence does not produce the common law result of requiring the applicant for bail to establish exceptional reasons of circumstances. The Court is required to have regard to all of the questions in cl 1 and the matters in (c)(iii) in the exercise of the discretion to grant or refuse bail. It may be that, having regard to all relevant matters in cl 3, the nature and seriousness of the offence and the probable consequences if the accused is convicted are

sufficient to enable the Court to conclude that the accused may fail to appear in Court in accordance with his bail undertaking.The nature of the potential sentence imposed by the Court, having regard to the answers to all the other mandatory questions in cl 1, may require or justify the refusal of bail.

See also Va v The State of Western Australia [2014] WASC 74 at [27]-​[29] where EM Heenan  J stated that the principles set out in Milenkovski at [31]-​[45], and summarised by Edelman  J in Quaid v The State of Western Australia [2013] WASC 228 are the “now authoritative exposition of the significance of the Bail Act 1982 (WA) for present applications”. [2.300] 

Where the person is awaiting trial for a murder charge, or sentencing after a murder conviction, the judicial officer is to refuse bail unless he or she is satisfied that there are exceptional reasons why the accused should not be kept in custody and is satisfied that bail can be granted based on the factors noted above in Sch 1, Pt C, cll 1 and 3. The officer will also generally refuse bail where a person is awaiting trial for a serious offence, or sentencing for a serious offence that the person committed while on bail for a serious offence, or on an early release order for a serious offence: cll 3A and 3B. In these cases, the judicial officer therefore needs to be satisfied of both stages; that bail can be granted and that there are exceptional reasons that mean that the accused should not be kept in custody. The procedure for applying these clauses was further explained McLure P by Milenkovski v Western Australia [2011] WASCA 99; (2011) 42 WAR 99. Only cll 3A, 3C and 4A of Pt C, Sch 1 of the Bail Act provide for a (rebuttable) statutory presumption against the grant of bail. That is indicated by the statutory expression that the judicial officer “shall refuse to grant bail for the offence” unless satisfied of the specified matters. The statutory presumptions against the grant of bail in cll 3A, 3C and 4A require that the judicial officer be satisfied of two matters. The jurisdiction to grant bail does not arise unless and until the judicial officer is satisfied that bail may properly be granted having regard to the provisions of cll 1 and 3. In addition the judicial officer must be satisfied that there are exceptional reasons why the accused should not be kept in custody. If the judicial officer is not satisfied that bail may properly be granted under the general provisions in cll 1 and 3, it is not necessary to consider whether there are relevant exceptional reasons.This structure reflects the possibility that the exceptional reasons may not be relevant to or inform the answers to the mandatory questions in cl  1(a) to (g). There is no scope for the application of an exceptional reasons or circumstances test beyond those statutorily specified in cll 3A, 3C and 4A.

The meaning of “exceptional reasons” was considered in Roberts v Western Australia [2011] WASC 118 at [9]‌-​[10] by Murray J: The term “exceptional reasons” is not defined, nor has the court sought to establish a closed list of circumstances which might constitute exceptional reasons.

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Clearly it could not do so. There can be no closed list. But whatever the factual circumstance or circumstances relied upon may be, that circumstance alone, or those circumstances in combination, must be able to be described as exceptional, in the ordinary meaning of the word. In Tieleman v The Queen (2004) 149 A Crim R 303 at [15], I said (Steytler and Templeman JJ agreeing): “Exceptional” is an ordinary adjective denoting that the thing to which it is applied is unusual or out of the ordinary, in some way special or an exception to the general run of cases. I remain of the view that no more can or should be said about when a circumstance or circumstances may be described as exceptional.

Conditions of release on bail Queensland [2.310] 

In Queensland, before a person can be released on bail they must enter into an undertaking that they will abide by any bail conditions imposed. There are four conditions for release on bail and they must be considered in the order prescribed by the legislation: BA (Qld), s 11(1)(a)-​(d): • release on the person’s undertaking without sureties or deposits of money or security; • release on the person’s undertaking with the deposit of money or security of a stated value; • release on the person’s undertaking with a surety of stated value; • release on the person’s undertaking with the deposit of money or security of a stated value and with a surety of stated value; • A surety is a person who agrees to forfeit on behalf of the accused: BA (Qld), s 21. The bail conditions are not to be more than onerous than what the police officer or court considers necessary: BA (Qld), s 11(1). In determining what bail conditions are necessary, the police officer and court take into account the nature of the offence, the circumstances of the defendant and the public interest: BA (Qld), s 11(1). Where the court or police officer consider it necessary to ensure that the accused appears in accordance with the bail requirement and does not commit an offence, endanger the public or interfere with the course of justice, the court or police officer may impose special conditions: BA (Qld), s  11(2). Such special conditions may prohibit a person from entering or being near licensed premises: BA (Qld), s 11(3). Such special conditions may not be more onerous than is necessary having regard to the nature of the

offence, the circumstances of the accused and the public interest: BA (Qld), s 11(5). For each condition, the person is released on their own undertaking that they will, for example, surrender into custody and/​or appear before the court as specified.1 Western Australia [2.320] 

In Western Australia, a person must not be released on bail unless they have entered into a bail undertaking:  BA (WA), s  28(1). This is an undertaking in writing by the accused (BA (WA), s 28(2)) that: • they will appear at a time or place specified; and • if they fail to appear at the required time, then they will appear at the required place as soon as is practicable; and • they will comply with such conditions as may be imposed; and • they will comply with any home detention condition that may be imposed. The undertaking also contains an agreement that the accused will forfeit money if so required. A surety may also be provided –​this is where a person (surety) agrees to forfeit money if the accused fails to attend court at the specified time or as soon as is practicable thereafter: BA (WA), s 35. In order to ensure performance of the bail undertaking, the judicial or authorised officer may impose conditions, which include (BA (WA), Sch 1, Pt D, cl 1(2)): • an agreement to forfeit money if he or she fails to comply with a bail requirement; • that a surety enters into a surety undertaking –​agreeing to forfeit money if the accused fails to comply with a bail requirement; • that the accused or the surety give something of specified value or a document relating to an asset; • that the accused or the surety enter into a mortgage or take some other such steps to render any security effective and enforceable by the State. The officer may also impose conditions on the person’s conduct while on bail or impose conditions as to where the person resides while on bail: BA (WA), Sch 1, Pt D, cl 2(1). Any conditions imposed under Sch 1 must not be more onerous on the accused than is required in the public interest having regard to the nature of the offence and circumstances of the accused: BA (WA), s 17.

1

See BA (Qld), s 20 for more examples of the types of undertakings.

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52      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Elements toolbox Queensland and Western Australia [2.330] 

There are many legislative provisions relating to procedure. This toolbox sets out some of the elements of three key provisions relating to arrest, detention and bail, respectively. • PPRA (Qld), s 391(1): requires a police officer to give information to an arrested person. The elements are: 1 2 3 4 5

Police officer Arrests a person Under a warrant or not Must as soon as reasonably practicable after the arrest Inform the person that they are under arrest and the nature of the offence.

• CIA (WA), s 138(2): guarantees a person the right to certain information. The elements are that: 1 2 3 4

The officer making the arrest Must inform the arrested person As soon as is practicable Of the offence for which he or she has been arrested or any other offences he or she is suspected of committing.

• PPRA (Qld), s  403:  relates to the initial period of detention for questioning and investigation. The elements are: 1

Police officer may detain a person for a reasonable time to investigate or question the person about: (a) the indictable offence that the person was arrested and is in custody for; or (b) any indictable offence that the person is suspected of committing, irrespective of whether it is the offence that the person is in custody for

2

For a maximum period of detention of eight hours unless it is extended.

• CIA (WA), ss  139-​141:  relate to the initial period of detention for questioning and investigation. The elements are that: 1 2 3

A police or public officer may detain a person For a reasonable time To conduct a search, to question or investigate an offence that the person is suspected of committing; and

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To decide whether or not to charge the arrested person For a maximum period of detention of six hours unless extended.

• BA (Qld), s 16(1): pertains to refusal of bail. The elements are that: 1 2

3

The court or police officer shall refuse bail if satisfied there is an unacceptable risk that the person will: • fail to appear and fail to surrender into custody; or • commit an offence while on bail; or • endanger the safety or welfare of an alleged victim or another person while on bail; or • interfere with witnesses or otherwise obstruct the course of justice while on bail; or The person should remain in custody to protect themselves.

• BA (WA), Sch 1, Pt C, cl 1 relates to the decision whether to grant bail. The elements are that: 1

The judicial or authorised officer can exercise their discretion to grant bail depending on • whether, if not detained in custody the person may:



(i) fail to appear in court;



(ii) commit an offence;



(iii) endanger the safety or welfare or property of any person;



(iv) interfere with witnesses or interfere with the course of justice;

• whether the person should remain in custody for their own protection; • whether the prosecutor has put forward grounds for opposing bail; … NB:  the court in engaging in this process considers where there are grounds to refuse bail rather than the accused needing to show that there are grounds to grant bail. This is unless the person is awaiting trial for a murder charge, or sentencing after a murder conviction or the person is awaiting trial for a serious offence, or sentencing for a serious offence that the person committed while on bail for a serious offence, or on an early release order for a serious offence: BA (WA), cll 3A, 3B and 3C.

Guide to problem solving [2.340]  • Can a police officer arrest the person without a warrant? • Does the warrant contain the required information?

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4 5

54      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

• Has the warrant been executed correctly? • Is there a citizen’s arrest?

– Has the arrested person been taken before a justice or police officer?

• Has the accused person been detained for questioning and investigation?

– When does the period of detention begin?

– What is the maximum time the accused person may be detained? – What is the maximum time the accused person may be questioned during the detention period?

– What factors are taken into account in determining whether the detention period should be extended?

• What rights does an accused person have during questioning and investigation? • Is the accused person an Aboriginal person, Torres Strait Islander, child, person with impaired capacity or person under the influence of liquor or drugs? – Are they entitled to a support person before and during questioning (Qld)? – When is a support person required to leave during the questioning of an accused person (Qld)? • Has the police officer cautioned the accused person? • Has the police officer electronically recorded the caution and questioning?

– Has the police officer made a written record of a confession or admission?

• Who may grant bail? – What factors are taken into consideration in determining whether to grant bail?

– What are the conditions for release of bail?

Revision questions 1

Provide examples of people who are entitled to a support person while being questioned by police about an offence.

2

When a person arrests another citizen, how should they proceed?

3

Can a police officer use lethal force to prevent a person escaping after they have been arrested?

4

Can a judge refuse to grant bail based on the strength of evidence against the person?

5

Is an unrecorded confession lost forever?

6

Is an accused person always expected to pay money to be granted bail?

Problem questions 1

At 10.00 am, police officer Peach arrested Apple, who was aged 25, for arson after Apple set fire to a fruit shop. Police officers, Peach and Pear, questioned Apple from 1.00 pm until 2.00 pm, and then questioned her again from 3.00 pm until 3.30 pm. Apple agreed in writing to answer questions asked by police and has no previous convictions. Assume that the time is now 5.00 pm. Police officer Peach needs to detain Apple until 7.30 pm in order to preserve some evidence and to question Apple again from 7.00 pm until 7.30 pm.



Advise police officer Peach how to proceed.

2

Mary owns a newsagent’s shop. One night she is working late when she hears the sound of glass smashing. She goes outside in the dark and sees that the window of the computer shop next door has been smashed and that items are not on their displays in the window. She also sees Steve running down the street away from the shop. He is dressed in a jogging outfit and has a rucksack on his back. Mary thinks that he must have broken the window and taken the items. She chases after Steve and shouts out “Stop, you thief!” Steve continues to run. Mary catches up with Steve and trips him over to stop him. Steve falls over and bangs the palms of his hands on the pavement. Steve struggles to get up, saying “Get off me, you weirdo!” Mary sits on Steve to restrain him and immediately gets out her mobile phone to call the police. Steve keeps struggling and trying to move but Mary remains sitting on him until the police arrive. When the police arrive they find nothing in Steve’s rucksack apart from work clothes. Meanwhile, police in the neighbouring suburb have arrested Patricia after she was reported for trying to sell computer parts to customers in the local hotel. The computer parts are found to be those stolen from the shop next to Mary’s.



Discuss the criminal liability of Mary.

Answers to revision questions 1

Queensland: The PPRA (Qld) details special requirements that police must adhere to when questioning Aboriginal and Torres Strait Islander persons, children and persons with impaired capacities: PPRA (Qld), ss 420-​422.

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Western Australia: The CIA (WA) does not contain any specific requirements for questioning Aboriginal and Torres Strait Islander persons, children, or persons with impaired capacities. In relation to Aboriginal and Torres Strait Islander persons, the guidelines developed in the case of R v Anunga (1976) 11 ALR 412 should, however, be adhered to. Special conditions relating to the young persons are found in the YOA (WA), while the MHA (WA) contains special conditions concerning the mentally impaired. 2

Queensland: The person arresting the other person must take them before a justice or deliver them to a police officer: CCQ, s 552. Failing to comply with this duty is a misdemeanour punishable by imprisonment for two years: CCQ, s 137. Western Australia: The person arresting must arrange for a police officer to attend, or they must take the suspect and anything relevant to the offence to a police officer as soon as practicable. He or she may detain the arrested person while such arrangements are being made: CIA (WA), s 25(5), (6).

3

A police officer may use lethal force after a person has been arrested under certain conditions: Queensland: The officer may only use lethal force after the officer first calls on the person to stop trying to escape, provided this is practicable, and if it is reasonably necessary to prevent the person escaping and the offence for which they are arresting the accused is one that is punishable by life or relates to the causing of death or grievous bodily harm: PPRA (Qld), s 616. Western Australia: A police officer may only use lethal force to prevent a person escaping after they have been arrested if it is reasonably necessary to prevent the person escaping and the offence the person was arrested for is one that is punishable with imprisonment for 14 years or more: CCWA, s 235(2).

4

Yes, a judge may refuse to grant bail based on the strength of evidence against the person: BA (Qld), s 16(1)-​(2); BA (WA) Sch 1, Pt C, cl 3(d).

5

No, not necessarily. Queensland: Where an accused person has made a confession that was not recorded, the police officer should make a written record of the confession, read and provide a copy of the confession to the accused person and give them the opportunity to make any corrections. The reading of the confession by the police officer and the accused person’s response should be electronically recorded: PPRA (Qld), s 437(4)-​(7). Western Australia: Where the admission is not recorded it may still be admitted in evidence if the prosecution proves on the balance of probabilities that there is a reasonable excuse for the lack of recording or the court uses its discretion under s 155 to allow the evidence: CIA (WA), s 118(3).

CHAPTER  2  PROCEDURE      57

No, an accused person may not have to pay any money to be granted bail. Queensland: The four conditions on release of bail are outlined in BA (Qld), s 11(1)(a)-​(d). Releasing an accused person without money, sureties or security must be considered first. However, the accused person will always have to make an undertaking and BA (Qld), s 20 provides examples of such undertakings. Western Australia: A surety may enter into a surety undertaking agreeing to forfeit money or some other assets, but this might not necessarily occur: BA (WA), Sch 1, Pt D, cl 1(2).

Answers to problem questions In answering the problem questions, the following issues will need to be raised. QUESTION 1 How long can police officer Peach detain Apple? Police officer Peach suspects that Apple committed arson in respect of a fruit shop and therefore Apple may be detained for a reasonable time by police officer Peach for investigation or questioning: PPRA (Qld), s 403(1); CIA (WA), s 139. In determining a reasonable detention period, the following factors will be taken into consideration: • detention is necessary in order to investigate arson; • only one indictable offence is in question; • arson is a serious property offence; • Apple has made a statement to the effect that she will answer questions; • Apple is 25 years old; • Apple was not questioned before the arrest at 10.00 am; • Apple has had time out from 10.00 am-​1.00 pm, 2.00 pm-​3.00 pm and 3.30 pm-​5.00 pm: PPRA (Qld), s 404(1). Queensland: The detention period commences when Apple was arrested for arson at 10.00 am: PPRA (Qld), s 403(5)(a). The maximum period for which Apple may be detained for questioning or investigation is eight hours: PPRA (Qld), s 403(2). Consequently, Apple may be detained for questioning until 6.00 pm. Western Australia: A person may be detained after being arrested for arson for a maximum of six hours immediately following the arrest, provided that this is for the purpose of investigating the arson or questioning Apple about the arson: CIA (WA), ss 140(3) and 139(2).

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58      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

How long can police officer Peach question Apple? Queensland: Within the eight hours of detention, police officer Peach may question Apple for a maximum of four hours and the amount of time out may be more than four hours: PPRA (Qld), s 403(4). Between 10.00 am and 5.00 pm, police officer Peach has questioned Apple from 1.00 pm-​2.00 pm and from 3.00 pm-​3.30 pm –​that is, 1.5 hours. This means that if necessary police officer Peach could question Apple from 5.00 pm-​6.00 pm. At 5.00 pm, the amount of time out is 5.5 hours –​that is, seven hours of detention less 1.5 hours of questioning. Western Australia: There is no limit on the maximum period of questioning within the six hours. Can police officer Peach apply for an extension of Apple’s detention period? Queensland: The eight-​hour period of detention ends at 6.00 pm. Police officer Peach would like to detain Apple until 7.30 pm and question her from 7.00 pm-​7.30 pm. This amounts to Apple being detained for a further 1.5 hours and questioned for a further 30 minutes. Before 6.00 pm, Police officer Peach may apply to a magistrate or justice of the peace to have the detention period extended: PPRA (Qld), s 405(1). The total questioning time will not exceed 12 hours, so police officer Peach may make an application to a magistrate or justice of the peace: PPRA (Qld), s 405(2). In accordance with PPRA (Qld) s 406(1), a magistrate or justice of the peace will take into account: • the nature and seriousness of the arson committed; • whether the investigation has been conducted properly and without unreasonable delay; • whether an extension will preserve evidence relating to the arson: this consideration has been particularly highlighted in the facts –​that is, detention until 7.30 pm and further questioning from 7.00 pm-​7.30 pm will preserve evidence relating to the arson; • whether an extension will enable an investigation of the arson; • whether an extension will enable further questioning about the arson; and • whether Apple or her lawyer has made a submission about the extension. hour period ends at 4.00 pm. Police officer Western Australia: The six-​ Peach would like to detain Apple until 7.30 pm. Given that the extension sought amounts to a further 3.5 hours, police officer Peach may apply before 4.00 pm to a senior officer to have the detention period extended: CIA (WA), s 140(4). To determine whether the extension is justified, the senior officer must consider the factors listed in CIA (WA), s 141 (detailed above at [2.110]).

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Mary could be liable for a common assault on Steve under CCQ, s 335; CCWA, s 313. This requires proof of an unlawful assault. “Assault” is defined in CCQ, s 245; CCWA, s 222. It requires that there is an application of force to another without that person’s consent with the intention to apply force: see Hall v Fonceca [1983] WAR 309. Mary applies force to Steve when she trips him over, causing him to fall, and when she sits on him. There is no reason here to assume that Steve consented to this application of force. Mary clearly intended to apply force because she was trying to arrest Steve. The assault must also be unlawful which, according to CCQ, s 246; CCWA, s 223, means that there is no authorisation, justification or excuse. The assault will not be unlawful if Mary was making a lawful arrest. A citizen may make an arrest under CCQ, s 546(d); CIA (WA) s 25(2) if they reasonably suspect that a person has committed an offence (Qld), or an arrestable offence (WA) –​that is, an offence that is punishable with imprisonment. Burglary is an arrestable offence because it is punishable with imprisonment: CCQ, s 419; CCWA, s 401. Note that Mary made her citizen’s arrest at night and may rely on CCQ, ss 546(e) and 549. In Queensland, once Mary has made a citizen’s arrest of Steve, she has a duty to take Steve before a justice or deliver him to a police officer: CCQ, s 552. Failing to comply with this duty is a misdemeanour punishable by imprisonment for two years: CCQ, s 137. Further, in Western Australia, if a citizen makes an arrest, they must arrange for a police officer to attend or to take the suspect and anything relevant to the offence to a police officer as soon as is practicable: CIA (WA), s 25(5). Mary made these arrangements by calling the police. In Queensland, it is required that an offence has actually been committed, even if it was not committed by the person arrested. In this instance an offence has been committed. Clearly, Mary suspected that Steve had committed the offence; the question is whether she had reasonable grounds for this belief. The belief may be found to be reasonable because Mary saw that the shop window was broken and items were missing, and she saw Steve running away from the shop. If it is found that Mary was making a lawful arrest, she is permitted to use such force as is reasonably necessary to effect the arrest: CCQ, s 254; CCWA, s 231(1). Given that Steve would not stop when she called out to him, it might seem reasonable that Mary would have to trip him over to stop him and arrest him. Given that an assault can continue as long as the application of force continues, it must also be determined whether it was reasonably necessary to remain sitting on Steve to stop him from escaping. If this is found to have been reasonably necessary, Mary is therefore able to detain Steve until the police arrive. The assault will not have been unlawful and she will be acquitted of a common assault.

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QUESTION 2

60      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Critical thinking questions 1

Drawing on criminal law theories –​for example, individual autonomy, social welfare, harm and morality –​when is the decision to grant bail to a person justified?

2

Can you think of any additional rights that should be given to a person who is being questioned by a police officer?

3

What is the purpose of cautioning a person?

4

What are the strengths and weaknesses of the current time limits on detaining and questioning a person about an offence? Should they be reformed?

5

Do the sentencing factors in the Penalties and Sentences Act 1992 (Qld), s 9(2)-​(6) overlap with the factors taken into account in determining whether bail should be granted? Why do you think the factors are not identical?

6

Should the CIA (WA) include specific provisions regarding the interviewing of Aboriginal and Torres Strait Island persons?

Double Jeopardy – Double Prosecution and Double Punishment Learning outcomes ...........................................................................   61 [3.05] Principles.................................................................................   62 [3.10] Double prosecution.......................................................................   62 [3.130] Double punishment.....................................................................   85 [3.170] Elements toolbox..................................................................   92 [3.210] Guide to problem solving......................................................   94 Revision questions ...........................................................................   95 Problem questions ...........................................................................   96 Answers to revision questions .........................................................   97 Answers to problem questions ........................................................   98 Critical thinking questions .............................................................   104 Reading ...........................................................................................   105

Learning outcomes This chapter will enable you to: • Understand the purpose of double prosecution • Identify whether double prosecution is a justification, excuse or true defence, and determine who bears the onus of proof and to what standard • Determine whether there has been finality in the first trial • Identify alternative verdicts • Distinguish a general verdict from a partial verdict • Apply the rules of double prosecution • Determine whether a case can be reopened on the basis of fresh or compelling evidence • Understand the purpose of double punishment • Identify whether double punishment is a justification, excuse or true defence, and determine who bears the onus of proof and to what standard

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• Understand that double punishment applies to all offences, not simply those provided in the Criminal Codes of Queensland and Western Australia • In Queensland, apply the test of “same act or omission” • In Western Australia, apply the test of “same necessary evidence to establish the offence” • Apply the death exception

PRINCIPLES [3.05] 

The fundamental principal unlaying double jeopardy is to prevent a person from twice being put at risk, or in peril, of being tried, convicted or punished for the same acts, omissions or offences. To be on trial is to be in jeopardy, to be put at risk or in peril of being convicted of one or more offences:  R v Gordon; ex parte Attorney-​General [1975] Qd R 301 at 315 per Williams J. Double jeopardy is a collective term that applies to several different stages of the criminal justice system, and captures both double prosecution and double punishment:  Pearce v The Queen (1998) 194 CLR 610 at [9]‌per McHugh, Hayne and Callinan JJ. In the same factual scenario, double prosecution prevents a retrial whereas double punishment prevents another penalty at a later trial.Thus, the issue of double prosecution is determined before double punishment.

Double prosecution Purpose of double prosecution [3.10] 

The key purposes of the double prosecution rules are to:

• ensure that the administration of justice (police investigation, prosecution and courts) operates efficiently so that an accused person is not continually retried for the same offence or similar offences emerging out of the same set of facts; • avoid the public losing confidence in the courts by preventing an inconsistent verdict in a retrial; • provide an accused person with closure so that they do not need to fear future retrials; • curb the unfettered power and community resources of the State in respect of retrials; and • prevent a retrial.

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Defence under double prosecution

1.

The trier of fact (judge or jury) must determine whether the accused is liable for the offence charged.



To overrule the accused’s presumption of innocence the trier of fact must be satisfied of liability beyond reasonable doubt. If they are not satisfied, there must be a plain verdict of not guilty, if they are satisfied, they must go to Step 2.

2.

The trier of fact must determine whether the accused is not guilty on ground of the defence.

Double prosecution is a true defence rather than a justification or an excuse. To satisfy a verdict of not guilty on ground of a true defence, such as double prosecution, the accused person may bear the introductory evidentiary burden and will bear the legal (persuasive) onus of proof on the balance of probabilities: R v Viers [1983] 2 Qd R 1 (R v Viers) at 6 per Thomas J. True defences, such as double prosecution, stand alone as exceptional defences where the onus of proof is definitely and exceptionally placed upon the accused to establish such a defence on the balance of probabilities. Under all defences, meaning justifications, excuses and true defences, the Crown always bears the onus to negative the defence beyond reasonable doubt: Woolmington v DPP [1935] AC 462 (Woolmington v DPP) at 475, 481-​ 482 per Viscount Sankey LC; R v Porter at 184. Defence presumptions –​Innocence, sanity and evenly balanced probabilities The presumption of innocence in criminal law is a strong and persistent golden thread. A  person is presumed to be innocent unless sufficient evidence is raised to prove otherwise beyond any reasonable doubt. At the end of the evidence, or in the absence of evidence, there is no onus laid upon the accused to prove their innocence. The onus is always laid upon the Crown to prove the accused’s guilt beyond reasonable doubt.The accused person never bears the onus of proof beyond reasonable doubt: Woolmington v DPP at 467, 480-​481. The presumption of sanity means every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, unless sufficient evidence is raised to prove otherwise on the balance of probabilities: CCQ, s 26; R v Porter at 183-​184.

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Raising any defence is a two-​step process (R v Porter (1933) 55 CLR 182 (R v Porter) at 184 per Dixon J):

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The presumption of evenly balanced probabilities means that the likelihood of any event occurring or not occurring, or any claim being true or false, is presumed to be approximately equal, “50/​50 odds” or evenly balanced. This presumption holds unless sufficient evidence is raised to prove otherwise on the balance of probabilities: Strong v Woolworths Ltd (2012) 246 CLR 182 (Strong v Woolworths Ltd) at [34]-​[35], [37] per French CJ, Gummow, Crennan and Bell JJ. Judge’s duty to direct on defences The judge has a duty to properly direct the jury on any line of defence that is fairly open for consideration on the evidence, and that failure to give direction on it would deprive the accused of a fair trial:  R v Bojovic [2000] 2 Qd R 183 (R v Bojovic) at [14] per de Jersey CJ, Thomas JA and Demack JJ. However, at least some evidence must be adduced and presented to the court by either the accused, the Crown or the judge before the judge has any duty to direct the jury to consider any defences. For a line of defence to be fairly open for consideration there needs to be at least some evidence raised, from which a jury might reasonably conclude that the line of defence is reasonably possible: R v Bojovic at [17]. The matters tending to justify, excuse or alleviate the accused must appear in the evidence before the accused can avail themselves of them: Woolmington v DPP at 474. If the circumstances and evidence do not raise a particular line of defence, then it is right, appropriate and fair for the trial judge to decline from referring the line of defence to the jury: R v Bojovic at [13], [18]. Multiple alternative lines of defence should only be presented to the jury in cases with sufficient grey area, where it is arguable but not sufficiently clear which line of defence is most appropriate and best suited to the evidence: R v Bojovic at [11], [14]. Evidentiary burdens –​Introductory, tactical and critical The accepted version of events will be the version supported by the preponderance of the evidence. The accused person does not actually need to raise any evidence or provide any version of events at all. The evidence may come entirely from other sources such as the Crown, the judge, eyewitnesses or objective evidence, such as post-​mortem findings or other expert testimony: R v Bojovic at [2]‌, [7].

The Crown must provide the accused with any evidence in their possession that the accused may see fit to help establish their defence: Woolmington v DPP at 476 The judge will only provide evidence or call witnesses in exceptional circumstances, and the Crown’s refusal to call a witness is not a sufficient exceptional circumstance: R v Apostilides [1984] HCA 38 at [15]. There are at least three senses of evidentiary burden: Introductory, Tactical and Critical: Strong v Woolworths Ltd at [52]-​[54] per Heydon J. An introductory evidentiary burden is the duty to introduce sufficient evidence to raise an issue as to the existence, or non-​existence, of a fact in controversy. The party must introduce sufficient evidence to avoid a “no case” submission: Strong v Woolworths Ltd at [52]. In the absence of sufficient evidence from other sources, such as the Crown’s evidence, the accused person may bear the introductory evidentiary burden, which means they bear the duty to introduce sufficient evidence to raise the existence of a defence. Sufficient evidence is needed to avoid a “no case” submission, meaning the accused has no defences available. Satisfying the introductory evidentiary burden can be as simple as the accused person just saying “This is my explanation” and then providing an explanation consistent with the evidence which has already been given from the witness-​box: Woolmington v DPP at 467, 473. In any criminal case, either the accused or the Crown may bear the discretionary tactical evidentiary burden.This means the party has the discretion to call evidence to counter the evidence raised by the opposing party and reduce their risk of losing the case. Each party should want to reduce the risk that the trier of fact (judge or jury) draws sufficiently strong inferences for the opposing side to satisfy their legal (persuasive) standard of proof: Strong v Woolworths Ltd at [53]. A critical evidentiary burden is the duty of the Crown, or defendant, to call counter evidence to avoid certain loss in the case. It is the duty to call evidence in response to strong and compelling evidence from the accused, or plaintiff. Evidence so strong, that if the Crown or defendant calls no evidence, a reasonable trier of fact (judge or jury) would be bound to decide the issue in the accused’s or plaintiff ’s favour:  Strong v Woolworths Ltd at [54]. In summary, under double prosecution, the accused may bear an introductory evidentiary burden, and a discretionary tactical evidentiary burden. The Crown may bear a discretionary tactical evidentiary burden, and/​or a critical evidentiary burden, depending on the strength of the accused’s evidence.

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Onus of proving double prosecution Legal (persuasive) onus of proof on the balance of probabilities means it must be proven, by the process of probabilistic reasoning, that it is more probable than not that the claim is true.This is the standard of proof required to overrule the presumption of evenly balanced probabilities: Strong v Woolworths Ltd at [32]-​[34] per French CJ, Gummow, Crennan and Bell JJ, Heydon J agreeing at [67], [75]. Under double prosecution, the accused person must prove that it is more probable than not that they have a legitimate claim to the true defence of double prosecution, pursuant to CCQ, s 17. Legal (persuasive) onus of proof beyond reasonable doubt means it must be proven to the exclusion of all doubt, there must be no reasonable doubt left of the accused’s guilt, or that the accused’s claim is false. This is a higher standard than on the balance of probabilities. A  verdict cannot be properly found until the end of the evidence, and if there remains any reasonable doubt in the accused’s guilt, or claim being false, then their guilt must be rejected, or their claim must be accepted as true.This is the standard of proof required to overrule the presumption of innocence: Woolmington v DPP at 480-​ 482; R v Porter at 185. In his Commentaries on the Laws of England, Blackstone stated that “it is better that ten guilty men go free than one innocent man suffers”, which is known as Blackstone’s ratio. Reasonable doubt of the accused’s guilt may come from any of the evidence given in the case, not just form the accused’s explanation, the jury must review all the evidence given. The jury may reject the accused’s explanation but still maintain reasonable doubt of the accused’s guilt: Woolmington v DPP at 467, 482. Thus, the Crown has the legal (persuasive) onus of negativing the accused’s claim to a defence of double prosecution beyond reasonable doubt. [3.20] 

Finality [3.30] 

Before the double jeopardy rules apply to prevent a retrial, there must be finality in the first trial. Generally speaking, this requires an accused person to be convicted or acquitted in the first trial. There is no finality in the first trial if: • the case has only gone to committal; • there is a discontinuance;

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• proceedings have been dismissed by a magistrate;1 • the prosecution has terminated proceedings (nolle prosequi); • the jury fails to reach a unanimous verdict; • a new trial is ordered and an earlier conviction or acquittal is quashed; • more than one victim is involved; and In Queensland, a dismissal by a magistrate is not sufficient to amount to finality in the first trial unless the magistrate issues a certificate of dismissal to an accused person, thus preventing further proceedings for the same cause: Criminal Code 1899 (Qld) (CCQ), s 700. A dismissal must be based on a hearing on the merits to satisfy the finality requirement: s 149; see also R v Hay; Ex parte Patane [1981] Qd R 152. Finality, in Queensland, is a question of law, which is decided by a verdict from a jury, judge or magistrate: CCQ, s 604. In Western Australia, there is no acquittal if there is a dismissal of a charge for want of prosecution:  Criminal Procedure Act 2004 (WA) (CPAWA), s  79(2). Further, if there is a discontinuance, an accused person may be charged later for the same offence in the court of summary jurisdiction or a superior court: (CPAWA), s 87(7). An accused person in Western Australia describes the offence of which they have been convicted or acquitted and this is determined by a magistrate or jury as a question of fact: (CPAWA), s 126(3). Alternative verdicts [3.40] 

In essence, an alternative verdict is an offence that is also open to the court. Alternative verdicts may be found on an indictment where several charges are listed on the same indictment: CCQ, s 567(2); (CPAWA), Sch 1, cll 2, 7 and 8. Additionally, alternative verdicts may be found in CCQ, Ch 61; and Criminal Code Act 1913 (WA) (CCWA), Pt 1, Ch IIA, and at the bottom of the offence. Some key statutory examples of alternative verdicts are listed in Table 3.1. Where the legislation specifies that an offence is not an alternative verdict, the word “NOT” has been inserted in the table.

1

See further discussion on this topic directly below, particularly regarding the effect of a certificate of dismissal.

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• the offences have different elements and are not alternative verdicts.

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General and partial verdicts [3.50] 

To apply the rules of double prosecution in s 17 of both the CCQ and the CCWA, it is critical to determine whether the earlier proceedings, which are referred to as “Trial 1” throughout this chapter, resulted in a general or partial verdict. The presumption of a general verdict means a verdict is presumed to be a general verdict unless the judge or jury expressly state otherwise. The jury must expressly state that they have returned a partial verdict, or the judge must have expressly asked the jury to return a partial verdict: O’Halloran v O’Byrne [1973] WASC 103 at [7]‌-​[10] per Jackson CJ. A general verdict is a verdict upon an indictment, which means the judge or jury have made a final decision on all of the offences open to them in law. An indictment is a written charge preferred against an accused: CCQ, s 1. The particulars subject of the charge and indictment should be specified on the written indictment. As a general rule, the prosecution must join charges founded on the same facts, or that from part of a series of offences of the same or a similar character: R v Viers [1983] 2 Qd R 1 (R v Viers) at 3, 5, 7 per Thomas J. All of the offences open in law, means all of the offences listed on an indictment, and all of the alternative offences to the offences listed on the indictment. An offender should be punished only for the offence with which they were charged, and not for some offence or version of the offence not charged:  Pearce v The Queen (1998) 194 CLR 610 at [11] per McHugh, Hayne and Callinan JJ. A common example of a general verdict is where an accused person has been charged and convicted or acquitted of murder in Trial 1. Manslaughter, which is always an alternative verdict to murder pursuant to CCQ, s 576, was also open to the jury in law during Trial 1. With a general verdict, the jury decides on all offences open to them in law. Ultimately, this means that with the one verdict the jury has decided on both murder and manslaughter, because they may have found the accused person guilty or not guilty of either murder or manslaughter. In O’Halloran v O’Byrne [1974] WAR 45 at 49, the accused person was acquitted of rape in Trial 1 but was later charged with unlawful carnal knowledge of a girl under the age of 16 years in Trial 2. The accused person argued the defence of double prosecution in Trial 2 and was successful on the

basis that the acquittal for rape was ruled to be a general verdict.Therefore, it was an acquittal of the charged offence, and all the alternative offences open to them in law. While, in essence, a finding of unlawful carnal knowledge of a girl under the age of 16 years was theoretically open to the jury, the judge did not direct the jury on that offence. In contrast, a partial verdict is a verdict on an offence, which means that the judge or jury have not made a final decision on all the offences open to them in law. They have only made a final decision on some of the offences listed on an indictment, and/​or some of the alternative offences to the offences listed on the indictment. To determine whether there is a partial verdict it is important to know the alternative verdicts listed in Table 3.1. Note that a judge may expressly ask for a partial verdict or a jury may expressly state that they have returned a partial verdict if they are unable to reach a unanimous verdict on all of the offences and alternative offences open to them in law: O’Halloran v O’Byrne [1974] WAR 45 at 51 per Jackson CJ. An example of a partial verdict is where an accused person has been charged and acquitted of rape in Trial 1.  However, when delivering the verdict in trial 1 the jury expressly stated that they had only made a decision on rape, but were unable to reach a unanimous decision on sexual assault. This is a partial verdict, because sexual assault is an alternative verdict to rape, and the jury only decided on rape but not sexual assault. The jury has NOT decided on all the offences and alternative offences open to them in law.

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Manslaughter

NOT Murder

Killing an unborn child, CCQ, s 577 and concealing the birth of children

Murder

Manslaughter

Murder or unlawful killing

CCQ, s 576(2)

CCQ, s 576(1)

CCQ, s 575

Offence without the circumstance of aggravation

Offence with the circumstance of aggravation

Legal Authority

Alternative

Offence

Queensland

Western Australia Alternative

Legal Authority

See murder above

Manslaughter

Murder

NOT Murder (not listed as an alternative), unlawful assault causing death, culpable driving (other than of motor vehicle) causing death or grievous bodily harm, killing an unborn child, concealing the birth of children, and acts intended to cause grievous bodily harm or prevent arrest

CCWA, s 280(1)

Manslaughter, unlawful assault CCWA, s 279(1) causing death, attempted murder, culpable driving (other than of motor vehicle) causing death or grievous bodily harm, killing an unborn child, concealing the birth of children, and Road Traffic Act 1974 (WA), s 59

There is no specific provision in the CCWA dealing with an offence with the circumstance of aggravation. Offences of aggravation may be listed as an alternative to an offence under the offence provision.

Offence

Table 3.1: Examples of alternative verdicts in Queensland and Western Australia

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Indecent treatment of children under 16, procuring a young person or an intellectually impaired person for carnal knowledge, procuring sexual acts by coercion.

Offence with intent to cause the result or less injurious result

Offence causing the specific result

Unlawful carnal knowledge with or of children under 16 years

Offence causing a specific result

Offence with intent to cause a specific result

CCQ, s 579(2)

CCQ, s 579(1)

CCQ, s 578(2)

CCQ, s 578(1)a Indecent treatment of children under 16 years, carnal knowledge with or of children under 16 years, abuse of persons with an impairment of the mind, procuring a young person etc for carnal knowledge, procuring sexual acts by coercion, incest, and sexual assault

Rape

Legal Authority

Alternative

Offence

Queensland CCWA, s 325

Legal Authority

Indecently deals with a child; CCWA, s 321(2) OR sexually penetrates a child who is under his or her care, supervision, or authority; OR indecently deals with a child who is under his or her care, supervision, or authority

Sexually penetrating or indecently dealing with a child under a person’s care, supervision or authority, indecent assault, and aggravated indecent assault

Alternative

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No specific provision on an offence with intent to cause a specific result in the CCWA

No specific provision on an offence causing a specific result in the CCWA

Child of or over 13 and under 16, sexual offences against

Sexual penetration without consent

Offence

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Fraud

Stealing

Stealing a motor vehicle

Stealing, unlawful use of CCQ, s 581 a motor vehicle, unlawful receiving, and obtaining a chattel, money or valuable security by valueless cheque

Fraud, unlawful use of a CCQ, s 581 motor vehicle, unlawful receiving, and obtaining a chattel, money or valuable security by valueless cheque

Fraud, stealing, unlawful CCQ, s 581 receiving, and obtaining a chattel, money or valuable security by valueless cheque

Stealing

Unlawful use of a motor vehicle

Offence

Fraud

Legal Authority

Alternative

Offence

Queensland CCWA, s 409

Legal Authority

There are no alternatives specifically listed in this provision

CCWA, s 371A

Killing animals with intent to CCWA, s 378 steal, severing with intent to steal, bringing stolen goods into WA, unlawful use of conveyance, fraud, receiving stolen property, possessing stolen or unlawfully obtained property, and unlawfully using another person’s animal

Stealing, receiving stolen property, and possessing stolen or unlawfully obtained property

Alternative

Western Australia

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Attempt to commit an offence

CCWA, s 10D(a)

CCWA, s 414

Legal Authority

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a Note that there are several more alternative verdicts outlined for unlawful carnal knowledge of a child under 16 years, unlawfully and indecently assaulting another, incest, attempt to commit incest in CCQ, s 578(2)-​(4).

Committing an offence

Attempt to commit an offence

Committing an offence

CCQ, s 583(1)

There is no specific equivalent in the CCWA

Fraud, stealing, unlawful CCQ, s 581 use of a motor vehicle, and unlawful receiving

Obtaining a chattel, money or valuable security by valueless cheque

Stealing, fraud, and possessing stolen or unlawfully obtained property

Alternative

Receiving stolen property

Offence

Fraud, stealing, unlawful CCQ, s 581 use of a motor vehicle, and obtaining a chattel, money or valuable security by valueless cheque

Legal Authority

Alternative

Unlawful receiving

Western Australia

Offence

Queensland

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Rules of double jeopardy [3.60] 

Section 17 of both the CCQ and the CCWA can be divided into two limbs and four legal rules, as shown in Diagrams 3.1 (Queensland) and 3.2 (Western Australia). Narrowing down the four rules to two rules is the easiest part and is often done first by determining whether there is a conviction or an acquittal in Trial 1. The challenging part in applying CCQ; CCWA, s 17 is to determine which limb applies. In Queensland, if there is an acquittal in Trial 1, legal rules 2 or 3 apply; and if there is a conviction in Trial 1, then legal rules 1 or 4 apply. In Western Australia, if there is an acquittal in Trial 1, legal rules 2 or 4 apply; and if there is a conviction in Trial 1, then legal rules 1 or 3 apply. The applicability of limb 1 or limb 2 of CCQ; CCWA, s 17 hinges on the principles of general and partial verdicts, and knowing which offences are alternative verdicts to the offence in Trial 1. If there was a general verdict in Trial 1, then limb 1 applies. If there was a partial verdict in Trial 1, then limb 2 applies. A couple of examples will further explain the application of the two limbs. Diagram 3.1: Queensland –​Double prosecution rules in CCQ, s 17

Assume that in Trial 1 an accused person was already charged and convicted upon an indictment of unlawful use of a motor vehicle pursuant to CCQ, s 408A.Then in trial 2, on the same facts the person is charged with stealing pursuant to CCQ, s 391. The verdict in Trial 1 was a verdict upon an indictment, which means it was a general verdict. A general verdict means that the jury decided on all offences and alternative offences open to them in law. As noted in Table  3.1, and pursuant to CCQ, s  581(a), stealing is an alternative to unlawful use of a motor vehicle.Therefore, stealing was already open to the jury in Trial 1, which means the jury’s general verdict in Trial 1 already decided on stealing. There was a general verdict in Trial 1, therefore, limb 1 of CCQ, s 17 applies, which means either legal rule 1 or 2 applies.The accused person was convicted in Trail 1; therefore, legal rule 1 of CCQ, s 17 applies. Stealing has already been decided in Trial 1, which means legal rule 1 of CCQ, s 17 will be offended by Trial 2. Therefore Trial 2 for stealing will NOT be allowed to proceed. Diagram 3.2: Western Australia –​Double prosecution rules in CCWA, s 17

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Now assume that in Trial 1 an accused person was already charged and acquitted of sexual penetration without consent pursuant to CCWA, s 325, with the jury expressly returning a partial verdict. Then in Trial 2, on the same facts the person is charged with indecent assault, pursuant to CCWA, s 323. As noted in Table 3.1 above, and pursuant to CCWA, s 321(2), indecent assault is an alternative to sexual penetration without consent, so it was open to the jury in Trial 1. However, the jury in Trial 1 expressly stated that they had only delivered a partial verdict, which only decided on sexual penetration without consent. Therefore, the jury’s partial verdict in Trial 1 has not already decided on indecent assault. There was a partial verdict in Trial 1, therefore, limb 2 of CCWA, s 17 applies, which means either legal rule 3 or 4 applies. As the accused was acquitted in Trial 1, in Western Australia, legal rule 4 applies. Sexual assault was not already decided in Trial 1, which means legal rule 4 of CCWA, s 17 will not be offended by Trial 2. Therefore, Trial 2 for sexual assault will be allowed to proceed. Queensland: Exceptions to the double prosecution rules [3.70] 

In Queensland on 25  October 2007, exceptions to the double prosecution rules came into operation. The exceptions apply to acquittals that occur before, on or after 25 October 2007: CCQ, s 678A(1). The definition of “acquittal” is provided in CCQ, s  678(1)(a) and shown in Diagram 3.3. An accused person may be retried for murder even if they have previously been charged and acquitted of a lesser offence, such as manslaughter: CCQ, s 678B(2).

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Diagram 3.3: Queensland –​Definition of “acquittal” for the purposes of the double prosecution exceptions

The exceptions to the double prosecution rules do not apply where a person has been acquitted of the offence charged, but convicted of a lesser offence:  CCQ, s  678A(2). This would apply, for example, if a person has been charged and acquitted of murder but is convicted of manslaughter. Where a person has been tried and acquitted outside Queensland, the double prosecution exceptions will apply unless the law in the place of the first proceedings prohibits a retrial; or it is inconsistent with the Commonwealth Constitution or a Commonwealth law: CCQ, ss 678A(3) and 678A(4). It should be noted that the exceptions to the double jeopardy rules were enacted after the case of R v Carroll (2002) 213 CLR 635. In that case, Carroll was charged and convicted of murdering a toddler, but on appeal was acquitted. After the acquittal, fresh evidence became available and while the rules of double jeopardy prevented Carroll from being retried for murder,

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he was charged with perjury because he lied during the murder trial when he said he did not kill the toddler. However, the conviction of perjury was not allowed, because for Carroll to be convicted of perjury, he would also have to be guilty of the murder. This would undermine and overturn the previous acquittal of murder. The High Court stated that: • a court can stay a proceeding where the later trial would breach double jeopardy and constitute an abuse of process: R v Carroll at [145]; and • the purpose of the perjury offence is not to permit a prosecution that would undermine or overturn an acquittal: R v Carroll at [147]. Diagram 3.4 below outlines the process for the retrial of an accused person for murder on the basis of fresh and compelling evidence. Where an accused person has been acquitted of murder, the Director of Public Prosecutions may apply to the court for the accused person to be retried for murder: CCQ, s 678B(1). The court may make an order for a murder retrial on the basis of fresh and compelling evidence relating to the offence against the accused person, and if the retrial would be in the interests of justice:  CCQ, ss  678B(1)(a)-​(b). It is important that the evidence is both fresh and compelling:  CCQ, s  678B(1)(a). “Fresh” evidence is evidence that was not adduced in the proceedings where the accused was acquitted and could not at that time have been adduced with the exercise of reasonable diligence: CCQ, s 678D(2). “Compelling” evidence must be reliable, substantial and highly probative against the acquitted person:  CCQ, s  678D(3). Evidence that was inadmissible in the earlier proceedings may still be fresh and compelling evidence on a retrial: CCQ, s 678D(4). In determining whether to order a retrial for murder, the court must also take into consideration whether such a retrial is in the interests of justice (CCQ, s  678B(1)(b)) and whether it will be a fair trial:  CCQ, s 678F(2). The focus of the court will be on the length of time since the accused person allegedly committed the offence, and whether any police officer or prosecutor failed to act with reasonable diligence or expedition in relation to investigating, prosecuting or applying for a retrial:  CCQ, s 678F(3). Where the court orders a retrial for murder, it must quash or remove the acquittal so that the accused person is not barred from being retried: CCQ, s  678B(3). Note that CCQ, s  17 does not apply to the retrial:  CCQ, s 678B(4).

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Diagram 3.4: Queensland –​Retrial for murder where there is fresh and compelling evidence

Diagram 3.5 outlines the process for the retrial of an accused person for a 25-​year offence on the basis of a tainted acquittal. Where an accused person has been acquitted of a 25-​year offence, the Director of Public Prosecutions may apply to the court for the accused person to be retried for the 25-​year offence (CCQ, s  678C(1)), which is an offence that is punishable by life imprisonment or for 25  years or more:  CCQ, s  678(1). An accused person may be retried for a 25-​year offence even if they have been charged and acquitted of a lesser offence: CCQ, s 678C(2).

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Diagram 3.5: Queensland –​Retrial for a 25-​year offence where there is a tainted acquittal

[3.80] 

Some examples of 25-​year offences are (CCQ):

• Riot in some circumstances: s 61(1)(a); • Piracy: s 80; • Perjury in some circumstances: s 124(2); • Conspiracy to bring false accusation: s 131(2); • Owner permitting abuse of children on premises: s 213(3)(a); • Carnal knowledge of a child under 12 years by child’s guardian: s 215(3);

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• Abuse of persons with impairment of the mind: ss 216(3)(a)-​(b); • Taking a child for immoral purposes: s 219(3)(a); • Incest: s 222(1)(b); • Maintaining a sexual relationship with a child: s 229B(1); • Murder: ss 302, 305(1); • Accessory after the fact to murder: s 307(1); • Manslaughter: ss 303, 310; • Aiding suicide: s 311; • Killing an unborn child: s 313(1); • Disabling in order to commit an indictable offence: s 315; • Stupefying in order to commit an indictable offence: s 316; • Acts intended to cause grievous bodily harm and other malicious acts: s 317(1); • Obstructing rescue or escape from unsafe premises: s 318(1); • Endangering the safety of a person in a vehicle with intent: s 319(1); • Rape: s 349(1); • Punishment for robbery: s 411(2); • Attempted robbery in some circumstances: s 412(3); • Extortion in some circumstances: s 415(1)(b); • Taking control of an aircraft in some circumstances: s 417A(3); • Entering or being in premises and committing indictable offences in some circumstances: s 421(3); • Endangering the safe use of vehicles and related transport infrastructure: s 467(1); • Sabotage: s 469A(1); and • Communicating infectious diseases to animals: s 474. [3.90] 

The court may make an order for a 25-​year offence retrial on the basis of a tainted acquittal and where it is in the interests of justice: CCQ, s  678C(1). The principle of “interests of justice” is discussed above at [3.70]. A tainted acquittal occurs when a person has been convicted of an administration of justice offence based on proceedings where they were acquitted of a 25-​year offence, and it is likely that, but for the administration of justice offence, they would have been convicted of the 25-​ year offence: CCQ, s 678E(2).

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• Attempt to murder: s 306(1);

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Administration of justice offences are listed in CCQ, Ch 16, and include: • Retaliation against a judicial officer, juror, witness etc: s 119B; • Judicial corruption: s 120; • Official corruption (not judicial) relating to offences: s 121; • Corruption of jurors: s 122; • Perjury: s 123; • Perjury –​contradictory statements: s 123A; • Punishment of perjury: s 124; • Fabricating evidence: s 126; • Corruption of witnesses: s 127; • Deceiving witnesses: s 128; • Damaging evidence with intent: s 129; • Preventing witnesses from attending: s 130; • Conspiring to bring false accusation: s 131; • Conspiring to defeat justice: s 132; • Compounding an indictable offence: s 133; • Justices exercising jurisdiction in a matter of personal interest: s 136; • Delay in taking a person arrested before a magistrate: s 137; • Inserting an advertisement without authority of the court: s 139; and • Attempting to pervert justice: s 140. A tainted acquittal cannot occur while a conviction for an administration of justice offence is being appealed: CCQ, s 678E(3). Where the court orders a retrial for a 25-​year offence, it must quash or remove the acquittal so that the accused person is not barred from being retried:  CCQ, s  678C(3). Note that CCQ, s  17 does not apply to the retrial: CCQ, s 678C(4). If a retrial for murder results in an acquittal, an application cannot be made for a further retrial: CCQ, s 678G(2)(a). If, on the other hand, a retrial for a 25-​year offence results in an acquittal, an application can be made for a further retrial, as long as the application is made within 28 days of an accused person being charged or issued with a warrant for the offence: CCQ, ss 678G(2)(b) and 678G(4). However, the court is able to extend the time limit of 28 days if good cause is shown: CCQ, s 678G(5). An application for a retrial will be considered by the court at a hearing, and an accused person has the right to be present and heard: CCQ, ss 678G(6) and 678G(7). If, however, an accused person has had a reasonable opportunity

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Western Australia: Exceptions to the double jeopardy rules [3.100] 

In 2012 in Western Australia, exceptions to the double jeopardy rules were introduced. According to the Criminal Appeals Act 2004 (WA) (CAAWA), s  46D, before an acquitted person is charged with a serious offence that is the same or substantially the same as the earlier charge, another serious offence that the acquitted person might have been convicted of at the earlier trial or an administration of justice offence allegedly committed in connection with the earlier trial; the Western Australian Court of Appeal must give leave. The process for applying for leave for a new charge and the process after a leave application is made is outlined in CAAWA, ss 46E and 46F, respectively. The acquitted person has the right to be heard at a leave application hearing: CAAWA, s 46G(1). [3.110] 

A serious offence is an indictable offence that attracts a penalty of life imprisonment; or 14 or more years of imprisonment: CAAWA, s 46A(1). Administration of justice offences are provided in CAAWA, s 46A(2) and include: • Bribery of public officer: s 82; • Judicial corruption: s 121; • Official corruption not judicial but relating to offences: s 122; • Corrupting or threatening jurors: s 123; • Perjury: s 124; • Fabricating evidence: s 129; • Corruption of witnesses: s 130; • Deceiving witnesses: s 131; • Destroying evidence: s 132; • Preventing witnesses from attending: s 133; • Conspiring to defeat justice: s 135; • Compounding or concealing offences: s 136; and • Attempting to pervert course of justice: s 143.

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to be present but has decided not to attend, the court may determine the application in their absence: CCQ, s 678G(8). Where appropriate, the court will make a declaration that the acquittal is not a bar to retrial:  CCQ, s  678G(11). An indictment for a retrial should be presented within two months, otherwise leave of the court is required: CCQ, s 678H(1).

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Diagram 3.6: Western Australia –​Application of double jeopardy exceptions

[3.120] 

When giving the applicant leave to charge an acquitted person with a new charge that is the same or substantially the same as the earlier charge or another serious offence that the acquitted person might have been convicted of at the earlier trial, the Western Australian Court of Appeal must be satisfied on the balance of probabilities that there is fresh and compelling evidence against the acquitted person on the new charge, or there is a tainted acquittal; and that the new charge is in the interests of justice:  CAAWA, s 46H(2). When giving the applicant leave to charge an acquitted person with a new charge that is an administration of justice offence, the Western Australian Court of Appeal must be satisfied on the balance of probabilities that it is in the interests of justice: CAAWA, s 46H(3).

Fresh and compelling evidence is defined in CAAWA, s  46I. “Fresh” evidence includes evidence that was not and could not have been adduced even though reasonable diligence was exercised in investigating the offence, as well as evidence that was available to the prosecutor in the earlier trial but could not be and was not adduced: CAAWA, s 46I(1). “Compelling” evidence is highly probative of the new charge in the context of the issues in the earlier trial: CAAWA, s 46I(2). In determining whether evidence is fresh or compelling, it is irrelevant whether the evidence would have been admissible in the earlier trial: CAAWA, s 46I(3). A “tainted acquittal” is defined in CAAWA, s  46J and includes where an acquitted accused or another person is convicted in Western Australia or another State of committing an administration of justice offence in connection with the earlier trial, and it is more likely than not that, but for the administration of justice offence, the acquitted person would have been found guilty of an offence in the earlier trial. When the Court of Appeal determines whether the new charge is not in the “interests of justice” and a fair trial is unlikely, the time since the offence was committed or the earlier trial, is taken into account: CAAWA, s 46K(2). The Court of Appeal also considers whether the police or prosecutor have failed to act with reasonable diligence or expedition in relation to the new charge, and the seriousness of the facts of the new charge: CAAWA, s 46K(3).

Double punishment Purpose of double punishment [3.130] 

Double punishment is a special plea pursuant to CCQ, s 16 and means that an accused person cannot be punished twice for the same act or omission. The defence of double punishment is available for offences under the CCQ as well as for offences under any other law: CCQ, s 16. An accused person may argue both double prosecution and double punishment in the same case. Double prosecution would be argued first to prevent the retrial. If this failed, double punishment would be argued to prevent further punishment. Defence under double punishment Double punishment, like double prosecution, is a true defence rather than a justification or an excuse. R v Hull (No 2) [1902] St R Qd 53 (R v Hull (No 2)) at 57 per Griffiths CJ; Connolly v Meagher ex parte Connolly (1906)

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3 CLR 682 Connolly v Meagher) at 684-​685 per Griffith CJ; R v Gordon; ex parte Attorney-​General [1975] Qd R 301 (R v Gordon) at 305 per Hanger CJ; R v Viers at 4. To satisfy a verdict of not guilty on ground of double punishment, the accused person may bear the introductory evidentiary burden and will bear the legal (persuasive) onus of proof on the balance of probabilities: R v Viers at 6. The Crown always bears the onus to negative the accused’s claim to a defence under double punishment beyond reasonable doubt:  Woolmington v DPP at 481-​482. Under double punishment, like double prosecution, the accused may bear an introductory evidentiary burden, and a discretionary tactical evidentiary burden. The Crown may bear a discretionary tactical evidentiary burden, and/​or a critical evidentiary burden, depending on the strength of the accused’s evidence. Interpretations of same act or omission [3.140] 

There have been varying judicial interpretations of the expression “same act or omission” and its test, including that it means: • an implied unity in time and place: R v Hull (No 2) at 57;2 • an inappreciable interval of time between two acts: Connolly v Meagher at 684;3 • a central theme, focal point or the basic act or omission: R v Gordon at 313 and 323 per Williams J;4 • distinguishing acts from the results of acts: R v Tricklebank [1994] 1 Qd R 330 (R v Tricklebank) at 330-​331 per Macrossan CJ;5

2

This case involved two acts occurring at different times –​ie, obtaining money under the false pretence that a telegram was genuine and procuring the forgery of the telegram. While knowledge that the telegram was forged was a common ingredient in both offences and the same evidence would be used to prove that common ingredient, this was not sufficient to amount to the same act.

3

In this case, keeping a liquor premises open on a Sunday occurred slightly before the sale of liquor to an under-​aged person, and thus there were two acts.

4

Here there were two different acts: being in charge of a motor vehicle while under the influence of alcohol (driving in a particular condition); and dangerous driving causing grievous bodily harm (driving in a particular manner).

5

There were two acts in this case. One was driving at a time and place of the fatal accident while having a blood alcohol concentration of 0.1%, and dangerous driving causing death with the circumstance of aggravation that at the time the accused person was adversely affected by alcohol.

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• the thing done as distinct from the process of doing it: Phillips v Carbone (No 2) (1992) 10 WAR 169 (Phillips v Carbone (No 2)) at 177 per Pidgeon ACJ;6

• that the total effect of the combined sentences is appropriate: R v Sheppard [2000] QCA 57 at [2]‌.8 Punishable acts or omissions test The prevailing and most consistently adopted test for double punishment, and the most detailed consideration, is the “punishable acts and omissions test”, which was formulated in R v Gordon by Chief Justice Hanger: R v Dibble; Ex parte Attorney-​General (2014) 238 A Crim R 511 (R v Dibble) at [17]-​[23] per Fraser and Gotterson JJA. The double punishment two-​step process According to Pidgeon ACJ, the application of double punishment, and the punishable acts and omissions test from R v Gordon, should be approached as a two-​step process (Phillips v Carbone (No 2) at 176): 1.

Step 1. What are the “things done”?



Which means, what are the acts or omissions in the previous offence and the present offence?

2.

Step 2. Have the things done “already been punished”?



Which means, have the things done in the present offence already been punished in the previous offence, is there unity?

6

Note that the same act cannot occur when there are two victims of the same offence. In this case, after driving a motor vehicle into a stationary vehicle, causing injury to two victims, the accused person was charged with two counts of causing bodily harm to another by driving a motor vehicle in a manner dangerous to the public.

7

In this case, the accused person was charged with two offences that contained the common ingredient of grievous bodily harm, and the court held that the accused person should not be punished twice for the common ingredient.

8

The same act was committed by the accused person when they engaged in a number of offences involving uttering and false pretences.

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• what the offender has done rather than how offences are defined –​an offender should not be punished twice for a common element: Pearce v The Queen (1998) 194 CLR 610 (Pearce v R) at [40] per McHugh, Hayne and Callinan JJ;7

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Step 1. “things done” –​acts or omissions For Step 1 of the two-​step process, the things done, or the acts or omissions have been defined as follows: • The acts or omissions that are essential elements of the offence, which must be distinguished from the evidence just adduced to prove the essential acts or omissions: R v Hull (No 2) at 57-​58. • All the punishable acts or omissions, even if the acts or omissions would constitute two different offences: R v Gordon at 306 per Hanger CJ. • All the things done, distinct from just the means of doing it. The punishable act or omission is anything liable to punishment, and more than just a willed movement, also includes the surrounding/​concomitant circumstances and the consequences, such as the identities of the victims: Phillips v Carbone (No 2) at 175-​177. • All of the “acts”, “omissions’’, “elements”, “circumstances” and “particulars” of the offending behaviour:  R v Tricklebank at 339 per Demack J. • The totality of the offending behaviour, all the acts or omissions constituting the offending behaviour open to the court in the previous conviction: R v Dibble at [25], [28]. Step 2. “already been punished” –​ Unity For Step 2 of the two-​step process, there are three formations to establish whether the things done have already been punished, to establish whether there is unity. Unity must exist in all three formations to establish unity and that the things done have already been punished. If unity does not exist in one or more of the three formations, then there is no unity and the things done have not already been punished: Phillips v Carbone at 182 per Nicholson J. • Formation 1. Unity of the time and place of acts or omissions test. There is unity of the acts or omissions in formation 1 if there is: – Unity, at least, of time and place: R v Hull (No 2) at 57. – An inappreciable interval of time between them: Connolly v Meagher at 685. – Unity does not exist if there is no unity of the time and place of the harms caused, even if there is unity of time and place of

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the circumstances and manner of the acts or omissions: Phillips v Carbone (No 2) at 182. • Formation 2. Unity of the essential elements of offences test.There is unity of the acts or omissions in formation 2 if there is:

– The same sole foundation, central theme, focal point or basic act or omission. Added aggravations may make the offences appear different, but the elements may still be the same: R v Gordon at 319, 323 per Williams J; The Queen v Miles (1890) 24 Q.B.D. 423 at 430-​ 435 per Hawkins J. – Identical essential elements or all the elements of one offence are wholly included in the other. The elements are based on substantially the same facts and circumstances. Accused should only be punished once for overlaps of common essential element: Pearce v R at [24]-​[26], [28] per McHugh, Hayne and Callinan JJ. – Identification of a single act or omission or element common to two offences should not be attended by “excessive subtleties and refinements”, it is a matter of common sense, not a matter of semantics: Pearce v R at [42]. – Unity does not exist if each offence has essential elements with distinguishing natures and characters: R v Tricklebank at 337. – Unity does not exist if each offence requires proof of a fact which the other did not, or unity may not exist if there are differentiating elements of aggravation: Pearce v R at [24]-​[26], [28] per McHugh, Hayne and Callinan JJ, Kirby J agreeing at [85]. – Unity will not exist just because of a common aggravating circumstance. The addition of an aggravating circumstance to an offence does not change its essential elements, or automatically make two offences identical: R v Tricklebank at 337. • Formation 3. Unity of the punishable acts and omissions test. There is unity of the acts or omissions in formation 3 if there is: – Unity in the gravamen of the offences, which goes beyond just the essential elements to include the particulars such as circumstances,

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– Identical “essential elements”, and not just some common ingredients or common evidence: R v Hull (No 2) at 58.

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consequences, and the manner and condition in which the accused acted: R v Gordon at 313 per Williams J. – Substantially the same facts, which includes the essential elements, circumstances, particulars and external matters. The facts do not need to be identical; they just need to be substantially the same. Punishable acts and omissions are not limited to just the essential elements of the offence: Phillips v Carbone at 182 per Nicholson J, 189-​190 per Ipp J. – All the evidence that would be sufficient for the current conviction was already included to procure the previous conviction. Phillips v Carbone at 190 per Ipp J. – The facts and particulars of the previous conviction were not specifically particularised or characterised to exclude particular acts from the previous offence that are required to establish the present offence. Therefore, both offences rely upon common particulars, substantially and practically the same evidence: R v Dibble at [26]-​ [27] (Fraser and Gotterson  JJA and Boddice  J agreeing at 518, quoting R v Donnelly (1920) 14 QJPR 62 at 64 per Shand J). – Unity or correspondence does not exist if the punishable acts differ in nature and quality, even if there was essentially the same physical conduct: R v Sanderson [2015] QDC 106 at [35] per Long SC DCJ. – Unity does not exist if there are different particulars, such as time and place of the offence and the identity of the aggrieved, such as one physical act or omission that causes multiple harm to different persons or things: Phillips v Carbone at 189-​190 per Ipp J. In R v Dibble, taking the facts of grievous bodily harm (the punch or punches delivered by the respondent and causing harm to the complainant) into account for public nuisance would have resulted in double punishment and offended CCQ, s 16: R v Dibble; Ex parte Attorney-​General (2014) 238 A  Crim R at [28] per Fraser and Gotterson  JJA and Boddice J agreeing at 518. The High Court decision in Pearce v The Queen (1998) 194 CLR 610 related primarily to double punishment at common law and not under CCQ, s 16: R v Sanderson [2015] QDC 106 at [20] per Long SC DCJ. In particular, His Honour stated (at [23]): … [A]‌s demonstrated by the decision in R v Dibble, the application of s 16 is not necessarily met by pointing to considerations that might be added or attached to an act or omission, in order to found an allegation of a different offence. That is so even if by doing that, an addition elemental of criminality or seriousness might be

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added and sought to be punished. For example, the addition of an allegation of the causation of bodily harm to a complainant (as is the case here) or of grievous bodily harm (as was the case in R v Dibble). It can also be noted that such a conclusion follows from the terms of s  16, which provides for an express exception as to causing death.

[3.150] 

While previously CCWA, s 16 provided for double punishment in the same terms as CCQ, s 16, the Western Australian provision has now been repealed and replaced with Sentencing Act 1995 (WA) (SAWA), s 11. In the Western Australian legislation, the term “offence” has been interpreted to mean the same as an act or omission committed in circumstances that make it punishable as an offence: R v Melville (2003) 27 WAR 224; [2003] WASCA 124 at [12] per Anderson and Murray JJ. The defence of double punishment is available for offences under the CCWA as well as for other Western Australian offences: SAWA, s 11(2). Where an accused person has been charged, convicted and sentenced for a Commonwealth, Territory or another State’s offence and the same evidence may be used to establish a Western Australian offence, the plea of double punishment will prevent a further sentence for the Western Australian offence: R v Melville (2003) 27 WAR 224; [2003] WASCA 124 at [10]. The evidence necessary to establish the two offences should be identical, and it will not be so when the two offences involve two victims, and the harm to each victim is evidence specific to each offence: Plenty v Bargain [1999] WASCA 67 at [71] per McKechnie  J; Grills v Ng [2000] WASCA 294 at [9]‌per Parker J. In SV v State of Western Australia [2014] WASCA 123, Mazza  JA explains the application of the common element principle and reinforces the significance of totality of sentence (at [156]-​[159]): [156] The evidence with respect to each count on the indictment against the appellant, while arising from the same course of conduct, was not the same. This is apparent from the fact that the appellant’s conduct resulted in harm to three different victims. Section 11(1) of the Sentencing Act has no application on the facts of this case. I now turn to the allegation of double punishment. [157] The orthodox approach to sentencing an offender for more than one offence requires the sentencer to fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] (McHugh, Hayne & Callinan JJ). Further, to the extent to which offences committed by an offender contain common elements, it is wrong to punish that offender twice for the commission of the elements that are common: Pearce [40].

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Western Australia: Same necessary evidence to establish the offence

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[158] The principles enunciated in Pearce are of general application:  see, for example, Eves v The State of Western Australia [2008] WASCA 7. Most cases in which the common element principle arises concern multiple offences arising out of a single act or omission. That, of course, is not the case here. In the present case, the offences were constituted by a number of acts and omissions.This is not to say that the common element principle cannot apply to an offence under s 101(1) of the Act.The common element principle would apply where the prosecution relies on the same conduct to establish offences against more than one victim. Where there is an overlap in the conduct, a sentencer must be careful to ensure that there is no double punishment. [159] In the present case, it is clear that his Honour was aware that the offences arose from the one course of criminal conduct and that totality was an important consideration.

Death exception [3.160] 

The exceptional case to double punishment is where there has been one act which has had a particular result –​death: R v Gordon; ex parte Attorney-​General [1975] Qd R 301 at 306 per Hanger CJ. The death exception to double punishment operates in the same way in both Western Australia and Queensland: Phillips v Carbone (1992) 67 A Crim R 392 at [11] per Parker J.9 As the name suggests, the death exception applies where a victim is unlawfully killed. It permits an accused person to be sentenced for the unlawful killing despite the fact that they have already been sentenced for another offence (not connected with the unlawful killing) arising out of the same facts. In some cases, the victim dies after the accused person has been charged, convicted and sentenced, but this is not necessarily the case, and the exception applies where the death occurs at any time before the first trial: R v Tricklebank [1994] 1 Qd R 330 at 334, 336 per Macrossan CJ.

Elements toolbox Double prosecution Queensland [3.170] 

The elements of double prosecution in CCQ, s 17 are:

1.

A person is tried and convicted (legal rule 1) or acquitted (legal rule 2) upon an indictment; and

9

In this case, Parker J (at [11]) compared the Sentencing Act 1995 (WA), s 11(3) with the former CCWA, s 16, which was the equivalent of CCQ, s 16.

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2.

A person is charged with an offence they might have been convicted of upon the indictment;

1.

A person has been acquitted (legal rule 3)  upon indictment or convicted (legal rule 4) of an offence; and

2.

A person might be convicted upon the indictment or complaint of the offence.

Section 17 of the CCQ does not apply to a retrial for murder where there is fresh and compelling evidence after the first trial, or where there is a 25-​year offence and there is a tainted acquittal. Western Australia [3.180] 

The elements of double prosecution in CCWA, s 17 are:

1.

A person has been tried and convicted (legal rule 1)  or acquitted (legal rule 2) upon an indictment or prosecution notice; and

2.

A person is charged with an offence they might have been convicted of upon the indictment or prosecution notice;

OR 1.

A person has been convicted (legal rule 3) or acquitted (legal rule 4) of an offence; and

2.

A person is charged with the offence on indictment or prosecution notice.

Double punishment Queensland [3.190] 

The elements of double punishment in CCQ, s 16 are:

1.

A person cannot be punished twice under the CCQ or any other law

2.

For the same act or omission

3.

Except where death is caused, in which case the person may be convicted of an offence constituted by the act or omission, and an offence causing death.

Western Australia [3.200] 

1.

The elements of double punishment in SAWA, s 11(1) are:

The evidence necessary to establish one offence under the law of the State

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OR

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2.

Is the same evidence necessary to establish another offence

3.

The accused may be charged and convicted of each offence

4.

But cannot be sentenced for more than one offence.

The elements of the death exception to double punishment in SAWA, s 11(3) are: 1.

If an act or omission of an offender causes the death of another

2.

The offender may be sentenced for the offence of causing death

3.

Despite the fact that the offender has already been sentenced for some other offence constituted by the act or omission.

Guide to problem solving [3.210] Note that the issues below arise in both jurisdictions unless expressly stated otherwise. Double prosecution • Why would an accused person want to raise double prosecution? • Who bears the onus of proving double prosecution and to what standard? • Is there finality in Trial 1 (the earlier proceedings)? • Did the judge or jury make a final decision on all the offences open to them in law? If yes, there was a general verdict. If no, there may have been a partial verdict. • Did the judge or jury expressly state that the verdict was a partial verdict? • Is the offence in Trial 2 an alternative verdict to the offence in Trial 1? If no, is the offence in Trial 1 an alternative verdict to the offence in Trial 2? • Which limb and rule (if any) of CCQ and CCWA, s 17 applies? • In Queensland –​

– Do the exceptions to double prosecution apply?



– Was the accused convicted of a lesser offence?



– Who makes the application for retrial to the court?

– If the offence in Trial 1 was murder, is there fresh and compelling evidence? • What does “fresh” mean? • What does “compelling” mean? • What is in the “interests of justice”?

– If the offence in Trial 1 was a 25-​year offence, is there a tainted acquittal?

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• What is a “tainted acquittal”? • What is an “administration of justice” offence? • What is in the “interests of justice”?

– Do the exceptions to double prosecution apply?



– Who makes the application for retrial to the court?



– What is a serious offence?



– Is there fresh and compelling evidence? • What does “fresh” mean? • What does “compelling” mean? • What is in the “interests of justice”?



– Is there a tainted acquittal? • What is a “tainted acquittal”? • What is an “administration of justice” offence? • What is in the “interests of justice”?

Double punishment Does double punishment apply to the offences in question? • In Queensland

– Do the two offences involve the same act or omission? • What were the things done (acts or omissions)? • Have the things done already been punished in the previous conviction? • Unity of time and place of acts or omissions; AND • Unity of essential elements; AND • Unity of punishable acts and omissions. • Is the total effect of the combined sentences is appropriate?



– Does the death exception apply?

• In Western Australia

– Is the evidence necessary to prove one offence the same as that necessary to prove the other offence?



– Does the death exception apply?

Revision questions 1.

Is double prosecution an excuse?

2.

If offence A is an alternative to offence B, is offence B an alternative to offence A? Use an example to justify your answer.

3.

Which limb of CCQ and CCWA, s 17 applies to general verdicts?

4.

What are two examples of finality?

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• In Western Australia –​

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5.

In Queensland, the double prosecution exceptions permit a retrial in some circumstances where it is in the interests of justice. What does the court consider in satisfying the “interests of justice”?

6.

Do the double prosecution exceptions apply retrospectively to acquittals?

7.

Is double punishment restricted to offences under the CCQ and CCWA?

8.

Can an accused person raise double punishment where their conduct caused injuries to two victims and they have already been sentenced with respect to one of the victims?

9.

Does double punishment prevent a retrial?

10.

What is the exception to the plea of double punishment?

Problem questions 1.

Pandora was recently charged and acquitted of fraud when she used Kylee’s credit card to buy an expensive bracelet at a jewellery store. On the same facts, Pandora has subsequently been charged with stealing. Discuss whether Pandora can raise the defence of double prosecution.

2.

On 7 June 2010, Dave was charged and acquitted of murder. However, the jury expressly stated that they were unable to reach a unanimous decision on manslaughter. Assume on the same facts that he has now been charged with manslaughter. Advise the Director of Public Prosecutions whether double prosecution applies.

3.

In Queensland, now assume Dave was charged and acquitted of manslaughter in Trial 1 on 7 June 201010 and advances in technology now mean that additional evidence about Dave’s intention will be available at a retrial. Do the exceptions to double prosecution apply?

4.

Jon served an alcoholic beverage to Roy (aged 15) in a wine glass (instead of in a plastic container) in contravention of Liquor Act 1992 (Qld), ss 155A, 99C and Liquor Control Act (1988) (WA), s 106(1)(a).11 On these facts, Jon has already been convicted of

10

The Western Australian exceptions to double prosecution came into effect in 2012, but they potentially have retrospective application: CAAWA, s 46B(2). Dave was originally acquitted of manslaughter on 7 June 2010. The Western Australian exceptions to double prosecution apply to this problem question because Dave is an acquitted accused pursuant to CAAWA, s 46B(1). For completeness, consider “fresh and compelling” evidence, and “interests of justice”, which are defined in CAAWA, ss 46I and 46K, respectively.

11

Note that at the time of writing there is no equivalent of s 99C of the Liquor Act 1992 (Qld) in Western Australia that would prevent the serving of liquid in glassware in

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selling alcohol to a minor and his penalty was 60 penalty units. Assume that Jon is now being charged and convicted of serving liquid in a glass container –​can he raise double punishment?

1.

No, double prosecution is a true defence, which means that an accused person may have the legal and evidentiary burden of proving double prosecution on the balance of probabilities: R v Viers [1983] 2 Qd R 1 at 6; Strong v Woolworths Ltd (2012) 246 CLR 182 at [50]-​[54] per Heydon J. Note that an accused person is never required to prove their onus beyond reasonable doubt: Woolmington v DPP [1935] AC 462 at 481-​482. The Crown has the legal and evidential burden to negative double prosecution beyond reasonable doubt: Woolmington v DPP at 481-​482.

2.

No, not necessarily. For example, manslaughter is an alternative to murder, but murder is not an alternative to manslaughter. To determine the alternative verdicts, read the indictment carefully and read the alternatives provided in CCQ, Ch 61 and at the bottom of each offence in the CCWA.

3.

Limb 1 of CCQ; CCWA, s 17.

4.

Conviction or acquittal.

5.

Fair retrial is likely: CCQ, s 678F(2). The court will also take into consideration the length of time since the offence and whether any police officer or prosecutor failed to act with reasonable diligence or expedition: CCQ, s 678F(3)(a) and (b).

6.

Yes: see CCQ, s 678A(1); CAAWA, s 46B(2).

7.

No. Section 16 of the CCQ applies to offences under the CCQ as well as any other law. Section 11 of the Sentencing Act 1995 (WA) applies to offences under the law of Western Australia, the Commonwealth, a Territory or another State.

8.

No. According to Phillips v Carbone (1992) 67 A Crim R 392, it is important to look at the thing done rather than the process of doing it, and thus, in Queensland, the same act cannot be done to two victims. Similarly, in Western Australia, as demonstrated in Grills v Ng [2000] WASCA 294 and Plenty v Bargain [1999] WASCA 67, different evidence is required to prove the offences with respect to each victim, and thus there is no double punishment.

9.

No. Double punishment does not prevent a retrial, but in Queensland it does prevent an accused person from being punished twice for the same act or omission; and on the same

high risk venues, but for the purposes of this question we will assume that there is an equivalent provision.

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Answers to revision questions

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evidence in Western Australia: CCQ, s 16; Sentencing Act 1995 (WA), s 11. 10.

The death exception: see CCQ, s 16; Sentencing Act 1995 (WA), s 11(3).

Answers to problem questions In answering the problem questions, the following issues will need to be raised. QUESTION 1 Why would Pandora want to raise the defence of double prosecution? Double prosecution: • provides Pandora with closure so that she does not need to fear future retrials; • curbs the State’s unfettered power and community resources to support retrials; and • prevents a retrial. Does Pandora bear the onus of proving double prosecution and to what standard? Double prosecution is a true defence, rather than a justification or an excuse. Pandora has the legal and evidentiary burden of proving double prosecution on the balance of probabilities: R v Viers [1983] 2 Qd R 1 at 6; Strong v Woolworths Ltd (2012) 246 CLR 182 at [50]-​[54] per Heydon J. Note that an accused person is never required to prove their onus beyond reasonable doubt: Woolmington v DPP [1935] AC 462 at 481-​482. The Crown has the legal and evidential burden to negative double prosecution beyond reasonable doubt: Woolmington v DPP at 481-​482. Is there finality in Trial 1? In Queensland, finality is a question of law, which is decided by a judge or magistrate: see CCQ, s 604. In Western Australia, an accused person describes the offence of which they have been convicted or acquitted and this is determined by a magistrate or jury as a question of fact: Criminal Procedure Act 2004 (WA), s 126(3). A conviction and an acquittal are examples of finality, and Pandora was acquitted in Trial 1. Was there a general or partial verdict in Trial 1? The presumption of a general verdict means a verdict is presumed to be a general verdict unless the judge or jury expressly state otherwise. The jury must expressly state that they have returned a partial verdict,

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or the judge must have expressly asked the jury to return a partial verdict: O’Halloran v O’Byrne [1973] WASC 103 at [7]‌-​[10] per Jackson CJ. Did the judge or jury expressly state a partial verdict? The judge or jury did not expressly state that the verdict in Trial 1 was a partial verdict, therefore, the verdict tin Trial 1 was a general verdict.

A general verdict is a verdict upon an indictment, which means the judge or jury have made a final decision on all of the offences open to them in law. All of the offences open in law, means all of the offences listed on an indictment, and all of the alternative offences to the offences listed on the indictment. Is the offence in Trial 2 an alternative verdict to the offence in Trial  1? Stealing is an alternative verdict to fraud: CCQ, s 581; CCWA, s 409, therefore, stealing was open in law to the judge or jury in Trial 1. Which limb and rule (if any) of CCQ; CCWA, s 17 applies? Limb 1 of CCQ; CCWA, s 17 applies to general verdicts. In Queensland and Western Australia, legal rule 2 applies because Pandora was acquitted in Trial 1. Pandora may raise the defence of double prosecution in the subsequent trial for stealing. QUESTION 2 Does the Director of Public Prosecutions bear the onus of proving double prosecution and to what standard? Double prosecution is a true defence, rather than a justification or an excuse. Dave has the legal and evidentiary burden of proving double prosecution on the balance of probabilities: R v Viers [1983] 2 Qd R 1 at 6; Strong v Woolworths Ltd (2012) 246 CLR 182 at [50]-​[54] per Heydon J. Note that an accused person is never required to prove their onus beyond reasonable doubt: Woolmington v DPP [1935] AC 462 at 481-​482. The Crown has the legal and evidential burden of negativing double prosecution beyond reasonable doubt: Woolmington v DPP at 481-​482. Is there finality in Trial 1? In Queensland, finality is a question of law and is decided by a judge or magistrate: see CCQ, s 604. In Western Australia, an accused person describes the offence of which they have been convicted or acquitted and this is determined by a magistrate or jury as a question of fact: Criminal Procedure Act 2004 (WA), s 126(3). A conviction and an acquittal are examples of finality, and Dave was convicted in Trial 1. Was there a general or partial verdict in Trial 1? The presumption of a general verdict means a verdict is presumed to be a general verdict unless the judge or jury expressly state otherwise.

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What is a general verdict?

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The jury must expressly state that they have returned a partial verdict, or the judge must have expressly asked the jury to return a partial verdict: O’Halloran v O’Byrne [1973] WASC 103 at [7]‌-​[10] per Jackson CJ. Did the judge or jury expressly state a partial verdict? The jury expressly state that they were unable to reach a unanimous verdict on manslaughter. Is manslaughter an alternative verdict to murder? Manslaughter is an alternative to murder: CCQ, s 576(1); CCWA, s 280. What is a partial verdict? A partial verdict is a verdict on an offence, which means that the judge or jury have not made a final decision on all the offences open to them in law. They have only made a final decision on some of the offences listed on an indictment, and/​or some of the alternative offences to the offences listed on the indictment. All of the offences open in law, means all of the offences listed on an indictment, and all of the alternative offences to the offences listed on the indictment. To determine whether there is a partial verdict it is important to know the alternative verdicts listed in Table 3.1. Note that a judge may expressly ask for a partial verdict or a jury may expressly state that they have returned a partial verdict if they are unable to reach a unanimous verdict on all of the offences and alternative offences open to them in law: O’Halloran v O’Byrne [1974] WAR 45 at 51 per Jackson CJ. Was the verdict a partial verdict? The jury expressly state that they were unable to reach a unanimous verdict on manslaughter, which is an alternative verdict to murder. Therefore, the jury were unable to reach a unanimous verdict on all of the offences and alternative offences open to them in law. The verdict in Trial 1 was a partial verdict. Which limb and rule (if any) of CCQ; CCWA, s 17 applies? Limb 2 of CCQ; CCWA, s 17 applies to partial verdicts. In Queensland, rule 3 applies; in Western Australia, rule 4 applies because Dave was acquitted in Trial 1. In Queensland and Western Australia, Dave may not raise the defence of double prosecution in the subsequent trial for manslaughter, because no decision was made on manslaughter in Trial 1. Note that in Queensland, if Trial 1 Dave was convicted of manslaughter and then charged with murder in Trial 2, the double jeopardy exceptions would not apply: CCQ, ss 678A(1) and 678B(2). Thus, in Queensland, Dave would have been able to raise the defence of double prosecution in the subsequent trial for murder.

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QUESTION 3 In Queensland, do the exceptions to double prosecution apply? The double prosecution exceptions in Queensland apply to acquittals that occur before, on or after 25 October 2007: CCQ, s 678A(1). Which covers acquittals that occur at any time, Dave was acquitted on 7 June 2010.

An accused person may be retried for murder even if they had been charged and acquitted of a lesser offence, such as manslaughter: CCQ, s 678B(2). The exceptions to the double prosecution rules do not apply where a person was acquitted of the offence charged but convicted of a lesser offence (CCQ, s 678A(2)) –​for example, if a person is charged and acquitted of murder, but is convicted of manslaughter. Dave was charged and acquitted of manslaughter, and so the double prosecution exceptions may apply. Who makes the application for retrial to the court? The Director of Public Prosecutions: CCQ, s 678B(1). Is there fresh and compelling evidence? Dave may be tried for murder in Trial 2 if there is fresh and compelling evidence, and it is in the interests of justice: CCQ, s 678B(1)(a) and (b). What does “fresh” mean? Fresh evidence is evidence that was not adduced in Trial 1 where the accused was acquitted and could not have been adduced with reasonable diligence: CCQ, s 678D(2). Advances in technology now mean that additional evidence will be available at the retrial, and thus this evidence was not adduced at Trial 1 and could not have been adduced with reasonable diligence. What does “compelling” mean? Compelling evidence is evidence that is reliable, substantial and highly probative against the acquitted person: CCQ, s 678D(3). The evidence shows Dave’s intention, which is critical to a case of murder. We need more facts about whether it is reliable, substantial and highly probative. What is in the “interests of justice”? The “interests of justice” require that a fair retrial is likely: CCQ, s 678F(2). The court will consider the length of time since the offence: CCQ, s 678F(3)(a); and whether any police officer or prosecutor failed to act with reasonable diligence or expedition: CCQ, s 678F(3)(b). The facts do not indicate when the offence occurred, only when the acquittal occurred, which was on 7 June 2010.

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Was the accused convicted of a lesser offence?

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It appears that the additional evidence is available because of advances in technology and not because of a police officer or prosecution acting without reasonable diligence or expedition. Overall, it appears that the exceptions to double prosecution may apply and thus Dave could not raise the defence of double prosecution in Queensland. QUESTION 4 Does double punishment apply to the offences in question? The two offences occur under the Liquor Act 1992 (Qld), ss 99C, 155A; and Liquor Licensing Act 1988 (WA), s 106(1)(a).12 Section 16 of the CCQ and s 11 of the Sentencing Act 1995 (WA) are not restricted to offences in the CCQ or CCWA and will apply to these offences. In Queensland, do the two offences involve the same act or omission? There are varying judicial interpretations of same “act or omission” and its test, including: • implied unity in time and place: R v Hull (No 2) [1902] St R Qd 53 at 57; • inappreciable interval of time between two acts: Connolly v Meagher; Ex parte Connolly (1906) 3 CLR 682 at 684 per Griffith CJ; • central theme, focal point or the basic act or omission: R v Gordon; Ex parte Attorney-​General [1975] Qd R 301 at 313 and 323; • distinguish acts from the results of acts: R v Tricklebank [1994] 1 Qd R 330 at 330-​331 per Macrossan CJ; • the thing done as distinct from the process of doing it: Phillips v Carbone (1992) 67 A Crim R 392 at 399 per Pidgeon ACJ; • what the offender has done rather than how offences are defined. An offender should not be punished twice for a common element: Pearce v The Queen (1998) 194 CLR 610 at 623 per McHugh, Hayne and Callinan JJ; • is the total effect of the combined sentences appropriate?: R v Sheppard [2000] QCA 57 at [2]‌. The prevailing and most consistently adopted test for double punishment, and the most detailed consideration, is the “punishable acts and omissions test”, which was formulated in R v Gordon by Chief Justice Hanger: R v Dibble; Ex parte Attorney-​General (2014) 238 A Crim R 511 R v Dibble) at [17]-​[23] per Fraser and Gotterson JJA. According to Pidgeon ACJ, the application of double punishment, and the punishable acts and omissions test from R v Gordon, should be approached as a two-​step process (Phillips v Carbone (No 2) at 176):

12

Note that at the time of writing there is no equivalent in Western Australia of s 99C of the Liquor Act 1992 (Qld) which prevents the serving of liquid in glassware in high risk venues, but for the purposes of this question we will assume that there is an equivalent provision.

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1. Step 1. What are the “things done”? Which means, what are the acts or omissions in the previous offence and the present offence? 2. Step 2. Have the things done “already been punished”?

How do you establish whether the things done have already been punished? There are three formations to establish whether the things done have already been punished, to establish whether there is unity. Unity must exist in all three formations to establish unity and that the things done have already been punished. If unity does not exist in one or more of the three formations, then there is no unity and the things done have not already been punished: Phillips v Carbone at 182 per Nicholson J. Formation 1. Was there unity of time and place of acts or omissions? Assuming that Jon takes the cash for the beverage at the same time he hands over the drink, Jon will complete the sale to the minor when he hands the beverage to Roy. This occurs at the same time and place as when he serves liquid in a glass rather than a plastic container. Similarly, there may be an inappreciable interval of time between when Jon hands the beverage in a glass to Roy and when Jon takes the cash for the beverage from Roy. As such, the two offences involve the same act, and this will assist Jon to raise double punishment. Formation 2. Was there unity of essential elements of offences? However, the central theme or focal point of the offences is different and this will help the prosecution. One of the offences focuses on selling alcohol to a minor; the other focuses on using glassware instead of a plastic container. Further, while the process of handing the beverage to Roy is the same for both offences, the things done are different –​one is selling alcohol to a minor and the other is using glassware instead of a plastic container. Thus, it is arguable that Jon cannot argue double punishment in the latter offence. The essential elements of Liquor Act 1992 (Qld), s 155A are person, sell, liquor and minor, whereas the essential elements of Liquor Act 1992 (Qld), s 99C are receives notice of high risk, not during trading hours, serve, liquid, patron and regular glass container. Comparing the essential elements of the two offences shows that none of the elements overlap and the two offences involve different acts, which helps the prosecution. Formation 3. Was there unity of punishable acts or omissions? From Formation 2, comparing the essential elements of the two offences shows that none of the elements overlap and the two offences

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Which means, have the things done in the present offence already been punished in the previous offence, is there unity?

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involve different acts. Therefore, it appears as though there is no unity in Formation 2. There must be unity in all three formations to show unity of punishable acts or omissions. If there is no unity in Formation 2, then there is no unity, and no need to apply Formation 3. In Western Australia, is the evidence necessary to prove one offence the same as that necessary to prove the other offence? Both offences require the prosecution to prove that Jon handed Roy a liquid. However, the first offence hinges on the liquid being alcoholic and Roy being under the age of 18. The second offence hinges on the liquid being served in a glass rather than in a plastic container. Thus, different evidence is required to prove these two offences, and Jon could be punished for the second offence: Sentencing Act 1995 (WA), s 11; see also R v Melville [2003] WASCA 124. Does the death exception apply? No. No-​one died on these facts: R v Tricklebank [1994] 1 Qd R 330. Overall, Jon cannot raise double punishment in the latter offence of serving liquid in glassware.

Critical thinking questions 1.

Is there always a general verdict where the most serious offence is tried in Trial 1? Justify your answer with examples.

2.

Reflect on the elements of rape and unlawful sodomy. Why do you think that rape is not an alternative verdict to unlawful sodomy? Do you think this should be reformed?

3.

Given that the double jeopardy rule has been around for approximately 800 years, what do you think was the impetus for the reforms to double jeopardy in Queensland and Western Australia in the 21st century?

4.

What are the pros and cons of limiting the Queensland double prosecution exception on the basis of fresh and compelling evidence to murder?

5.

Can you identify any similarities and differences between double prosecution and double punishment?

6.

What is the practical difference between a cumulative and concurrent sentence? Which may amount to double punishment?

7.

Why do you think Western Australia repealed CCWA, s 16, which was based on the requirement of “same act or omission”?

8.

Which interpretation of “same act or omission” in CCQ, s 16 do you think is the most compelling? Why?

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9.

What principles of criminal law theory support the death exception to double punishment?

10.

In addition to the death exception, can you think of any other justifiable exceptions to double punishment?

• K Burton, LexisNexis Questions and Answers: Criminal Law in Queensland and Western Australia (2nd ed, LexisNexis, Sydney, 2015) Ch 10.

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Reading

CHAPTER 4 Fatal Offences Learning outcomes..........................................................................   107 [4.10] Principles...............................................................................   108 [4.10] Introduction...............................................................................   108

[4.30] Killing......................................................................................   109 [4.40] Person.....................................................................................   109 [4.60] Death.......................................................................................   112 [4.70] Causation.................................................................................   112 [4.230] Murder or manslaughter.............................................................   128 [4.390] Elements toolbox................................................................   147 [4.400] Guide to problem solving....................................................   148 Revision questions .........................................................................   149 Problem question ...........................................................................   150 Answers to revision questions .......................................................   150 Answer to problem question .........................................................   151 Critical thinking questions ............................................................  153 Readings .........................................................................................   153

Learning outcomes This chapter will enable you to: • Locate the relevant provisions on homicide in CCQ, Ch  28; CCWA, Ch XXVIII • Explain when a person becomes a person capable of being killed • Explain the meaning of death • Identify, analyse and apply the Code provisions and case law on causation • Establish whether a person can be liable for causing the death of another person • Recognise when a person can be held to have caused the death of a person by failing to act

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[4.20] Unlawful...................................................................................   108

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• Describe the elements of murder • Describe the meaning of: – intention – endangering life – unlawful purpose – dangerous act – Identify when a charge of murder may arise – Identify when a charge of manslaughter may arise – Recognise when an omission can amount to a homicide offence – Appreciate how the Code provisions and case law on homicide fit together – Identify, describe and apply the elements of the offences of murder and manslaughter – Attempt to solve problems concerning homicide

PRINCIPLES Introduction [4.10] 

Homicide is not an offence in itself but is a generic term used to describe the killing of a human being. If a person unlawfully kills another, this could be either murder or manslaughter depending on the circumstances: CCQ, s 300; CCWA, s 277.These offences share the elements of unlawfulness and killing. Once it is established that a person has killed and that it was unlawful, they can be liable for either murder, if certain extra elements are proven (for example, that the person had a specific intention), or manslaughter.1

Unlawful [4.20] 

Any killing that is not authorised, justified or excused by law is unlawful: CCQ, s 291; CCWA, s 268. This means that if it is proved that a person has killed they can be liable for murder (provided they satisfy the

1

Where death is caused by dangerous driving, an alternative offence is dangerous operation of a motor vehicle: CCQ, s 328A; or dangerous driving causing death: Road Traffic Act 1974, s 59.

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requirements in CCQ, s 302; CCWA, s 279) or manslaughter (CCQ, s 303; CCWA, s 280) if they have no authorisation, justification or excuse for the killing. Examples of when killing would not be unlawful are where the accused has an excuse or a defence  –​for example, where the death of a person is caused by an involuntary act (CCQ, s 23(1)(a); CCWA, s 23A), or by accident (CCQ, s 23(1)(b); CCWA, s 23B), was done in an emergency situation (CCQ, s 25; CCWA, s 25), was done in self-​defence (CCQ, ss 271-​ 273; CCWA, s 248), or where the accused was mentally impaired at the time of the killing: CCQ, s 27; CCWA, s 27.

[4.30] 

“Killing” is defined in CCQ, s 293; CCWA, s 270 as causing the death of a person directly or indirectly by any means whatever.This requires proof that: • the victim is a person capable of being killed; and • the person is dead; and • the accused caused the death of that person.

Person [4.40] 

According to CCQ, s 292; CCWA, s 269, a child becomes a person capable of being the subject of a murder or manslaughter charge once they are born (fully proceed from the mother’s body) alive. A person can be liable for murder or manslaughter where the baby is born alive even if the baby has not breathed, does not have an independent circulation or the umbilical cord has not been severed. If the baby is not born alive, a person cannot be convicted of murder or manslaughter. However, in cases where the death is caused while the baby is in the body of the mother, a person can be charged with killing an unborn child: CCQ, s 313; CCWA, s 290. This offence applies where a person does or omits to do something when a woman is about to give birth to a child which prevents the child from being born alive. This raises the question of what is meant by “when a woman is about to be delivered of a child”. It could mean that the woman is at full term or is in labour at the time of the act or omission. Murray J discussed the meaning of this phrase in Martin v The Queen (No 2) (1996) 86 A Crim R 133 at 138: The meaning of the phrase “when a woman is about to be delivered of a child” is uncertain. Does it mean at or about the time of birth? If so, why is it so limited, or is it a case that a woman is regarded as being about to be delivered of a child at any time while she is pregnant and carrying a live foetus?

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Killing

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The situation was clarified in Queensland by an amendment to CCQ, s 313, which now states in s 313(2): Any person who unlawfully assaults a female pregnant with a child and destroys the life of, or does grievous bodily harm to, or transmits a serious disease to, the child before its birth commits a crime.

A person can be guilty of this offence even if the unborn “child” was not at an stage where it would have been capable of existence independently of its mother. Therefore, in R v Waigana (2012) 225 A Crim R 20, it was held that an offence against s 313(2) could be committed against a foetus aged between 15 and 18 weeks which, at that age, had no prospect of survival outside its mother. In Western Australia, where such an amendment has not been made, it would seem appropriate to take a wider view of “about to be delivered of a child”, as discussed by Murray J, to cover cases where something is done while a woman is pregnant. In this regard, the Law Reform Commission of Western Australia has suggested that CCWA, s 290 should be amended so that it applies “when a woman is pregnant with a child capable of being born alive”.2 [4.50] 

While a person cannot be convicted of murder or manslaughter where they do something or omit to do something which leads to the death of the baby before it is born, a person can be convicted of murder or manslaughter where they do something or omit to do something which causes the baby to die after it is born alive. In Martin v The Queen (No 2) (1996) 86 A Crim R 133, the appellant stabbed his wife, who was 28 weeks pregnant, in the back.The stabbing did not directly injure the foetus but the blood loss to the woman caused substantial brain damage to the foetus. Two months after the stabbing the baby was born and lived for seven months before dying as a result of the brain damage caused by the mother’s blood loss. The appellant was convicted of manslaughter of the baby. He appealed on the basis that the trial judge had erred by telling the jury that it did not matter that the baby was not a person capable of being killed at the time of the act which caused his death. It was found that the trial judge had not erred and the appeal was dismissed (at 136-​140): 2

Law Reform Commission of Western Australia, Review of the law of Homicide, Final Report (Project No 97, September 2007) pp 24-​25. This recommendation was first made by the Murray Review: M Murray, The Criminal Code: A General Review (1983) p 185. The Commission also recommended that “s 290 should be reviewed in consultation with the medical profession to clarify the application of the section and to establish a statutory period of gestation beyond which a child is presumed to be capable of being born alive”.

It is clear, in my opinion, that an unlawful homicide is a crime constituted by the event … of the death or killing of another person. … Section 270 [CCQ, s  293], as has been seen, is really a causation provision. It provides the general statement that criminal responsibility will arise by establishing the causative link between the act or omission of the accused person and the death or killing of the deceased person. In its terms, it does not seek to place any legal or factual fetter or restriction upon the nature or timing of the causative behaviour … For the appellant, it is argued that s  270 [CCQ, s  293] focuses attention upon the conduct of the alleged offender and speaks of the necessity to prove that he or she caused the death of another person. It is submitted that the natural meaning of the section is that the acts or omissions which are said to be causally relevant to the subsequent death must be committed in relation to the person who dies at a time when the victim is a person recognised by the law as being a person who may be killed. … Clearly, as a matter of fact, the appellant’s conduct which was capable of being regarded as indirectly causing the death of the child Gavin, was done well before his birth. When that conduct occurred there was no person known to the law capable of being killed by it, because Gavin was then still a foetus. In my opinion, however, to read s 270 [CCQ, s 293] in that way is not to give the words of the section their natural and ordinary meaning, but rather to give them a strained and restricted meaning. The section is about homicide. It is concerned to define when the accused may be taken in law to have killed the deceased. The answer given by the section is that it must be possible, upon the death of the deceased person, as a matter of fact, to prove that in some way the accused caused that death. In my opinion, no more can be drawn from the words of the section and that result is consistent with the evident policy of the law to make criminally responsible for the death of another, any person who causes that death, whatever be the nature of the cause and whenever the causative conduct occurred …. Finally, it does seem to me that what I have written above is consistent with what has long been understood to be the common law. The example of one old case will suffice to make the point. In West (1848) 2 Cox CC 500 it was held to amount to homicide where the accused, intending to procure an abortion, did an act to the mother which caused the child to be born alive at a time when it was not viable, so that it thereafter died. In my view that case is essentially indistinguishable from this. I am therefore of the view that the learned trial judge was not in error when he said to the jury, in this case: I direct you as a matter of law that where a baby has proceeded in a living state from the body of its mother, it becomes a person capable of being killed, regardless of the fact that the act which later leads to the death was done when it was still a foetus in the mother’s womb. His Honour clearly directed the jury that the essential question was for them to be satisfied beyond a reasonable doubt that acts of the appellant caused the ultimate death of the child. The appeal should be dismissed.

It is therefore clear that a person can be liable for murder or manslaughter of a baby even if the injury is done before birth, provided that it can be shown

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that what was done while the foetus was inside the mother was the actual cause of death after the baby was born alive.

Death In Western Australia, “death” is defined in Interpretation Act 1984, s 13C, for the purposes of all laws in Western Australia, as the irreversible cessation of all brain function or irreversible cessation of circulation of blood in the person’s body. In Queensland there is no specific definition for the purposes of criminal law but the definition in relation to transplanting human tissue in Transplantation and Anatomy Act 1979, s  45(1) is almost identical to the definition in Western Australia. It is not essential that the body be found for a person to be convicted of a homicide offence. However, where there is no body, or there is only part of a body, the evidence must leave no room for reasonable doubt that the accused killed the victim. In R v Horry [1952] NZLR 111 at 123, it was stated: [4.60] 

In this case, there is neither the body nor traces of the body, nor anything in the form of a confession, but, in our opinion, that does not exhaust the possibilities. There may be other facts so incriminating and so incapable of any reasonable explanation as to be incompatible with any hypothesis other than murder. It is in accord both with principle and with authority that the death should be provable by such circumstances as render it morally certain and leave no ground for reasonable doubt –​that the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.

Causation [4.70] 

Murder and manslaughter are result crimes, which means that they are concerned with the consequence of a person’s act or omission. For these offences it must be proved that what the accused did, or failed to do, directly or indirectly caused the death of a person:  CCQ, s  293; CCWA, s 270. Causation is usually established using general principles of common law with the aid of Code provisions, which deal with specific situations: Couzens v The State of Western Australia [2019] WASCA 54; TB v The State of Western Australia [2015] WASCA 212; Krakouer v Western Australia (2006) (Krakouer) 161 A  Crim R 347; [2006] WASCA 81. In Krakouer v Western Australia (2006) 161 A  Crim R 347; [2006] WASCA 81 at [74], Steytler P outlined how Code and common law provisions fit together as follows: Sections  272 to 275 [CCQ, ss  295-​ 298] deal with causation in particular situations:  causing death by threats (s  272 [CCQ, s  295]), acceleration of death

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To be liable for murder or manslaughter, it must be established that the accused is the factual and the legal cause of death: Royall v The Queen (1991) 172 CLR 378; Krakouer v Western Australia (2006) 161 A Crim R 347; [2006] WASCA 81; Couzens v The State of Western Australia [2019] WASCA 54; TB v The State of Western Australia [2015] WASCA 212. Factual causation (sometimes called “causal connection”) is established using the “but for” test. This test is applied by asking whether the death of the victim would have occurred “but for” the actions of the accused: Krakouer v Western Australia (2006) 161 A Crim R 347; [2006] WASCA 81 at [22]. If the answer is that the victim would not be dead if the accused had not done (or omitted to do) what he or she did (or omitted to do), then the accused is a factual cause of death. The factual test merely establishes whether there is a connection between the behaviour of the accused and the victim’s death; it does not establish whether this connection is sufficient to hold the accused responsible for causing the death.Therefore the factual test is supplemented by a second test to determine whether the accused’s part in the death is sufficient to hold her or him culpable for the death. This test also addresses questions, such as whether any intervening acts of the victim or a third party affect the accused’s responsibility for causing death. The second test is called the “legal test” or the “test of causal responsibility” and was outlined as follows in Krakouer (at [23]): Legal causation raises more difficult questions of criminal responsibility –​whether the factual connection between the conduct in question and the event is sufficient to justify the attribution of moral culpability and, hence, legal responsibility. [4.80] In Royall v The Queen (1991) 172 CLR 378 at 441-​442, four tests were identified for establishing legal causation: In most criminal cases, the issue of causation is not controversial … 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)

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(s 273 [CCQ, s 296]), where death might have been prevented by proper precautions (s 274 [CCQ, s 297]) and injuries causing death as a result of subsequent treatment (s 275 [CCQ, s 298]). However, these specific sections do not, in my view, limit the generality of the causation requirement in s 270 [CCQ, s 293]. The common law principles of causation provide guidance in that regard.

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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 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.

In Krakouer v Western Australia (2006) 161 A Crim R 347; [2006] WASCA 81 at [28], the Western Australian Court of Appeal also commented that in simple cases using the commonsense test will be enough to establish legal causation: Ordinarily … 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.

In explaining the commonsense test, Burt CJ in Campbell v The Queen [1981] WAR 286 at 290 commented that 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 enquiry is to attribute legal responsibility in a criminal matter. [4.90]  In more complex cases  –​for instance, where the accused’s acts would not have caused death without the intervention of a subsequent act  –​it may be necessary to use other tests, such as the operating and substantial cause test. In Krakouer, the applicant and the deceased had a fight, during which another person became involved. The applicant struck the victim and fractured his skull after the other person had hit the deceased with such force that he mortally wounded the victim. The issue in this case was whether the applicant could be found to be a cause of death if the deceased had already been mortally wounded at the time he was struck by the applicant. It was confirmed that, to be found to be a legal cause of death, what the applicant did (or omitted to do) need not be the sole cause of death. Use of the operating and substantial cause test was approved in Krakouer (at [39]-​[41]): In the end, it seems to me that, on the present state of authority, it is enough to satisfy the requirement of causation for the purpose of attributing criminal responsibility if the act of the accused makes a significant contribution to the death of the victim, whether by accelerating the victim’s death or otherwise, and that it is for the jury to decide whether or not the connection is sufficiently substantial. In my opinion, there was, in this case, more than enough in the medical evidence to entitle a jury to find that there was a sufficiently substantial connection between the blow struck by the applicant and the death of the deceased. While the jury was obliged to accept, on the evidence of Dr  Margolius, that the deceased was already dying when he was struck by the applicant, he was then still alive, and her

evidence quite plainly established that this very powerful blow made a significant contribution to his death. I have said that Dr Margolius described the blow as being itself potentially fatal. That was hardly surprising, given that it had been struck with sufficient force to break the bony plates of the skull, making them go down onto the brain and cause contusions. As I read the evidence of Dr Margolius (and as I believe any reasonable jury would have understood it), the injuries so caused, acting on an already severely injured man who was suffering from bleeding inside the skull, must inevitably have contributed, in a not insignificant way, to the death of the deceased. That is what I understand her to have meant when she said, variously, that the blow to the back of the head had “added to … [the deceased’s] problems”; that, when the injuries were “added together”, the deceased was “going to die”; and that the blow struck by the applicant was “an additional factor in … [the deceased] dying”. This was undoubtedly sufficient to entitle a reasonable jury to find that the applicant was causally responsible for the death of the deceased. Indeed, I do not see how any reasonable jury could have found otherwise, given the damage inflicted by the blow and the evidence of Dr Margolius to which I have referred.

In Couzens v The State of Western Australia [2019] WASCA 54, the Court of Appeal of Western Australia found that if death was the result of a combination of the victim self-​applying methamphetamine and the appellant placing a ligature around the neck of the victim then it could be found that the appellant caused death. The Court confirmed that the behaviour of the appellant need not be the sole cause of death, it is sufficient for it to be a substantial and operating cause of death. After an accused has done something (or omitted to do something) which would lead to the death of the victim, other events may occur which could break the chain of causation linking what the accused did (or omitted to do) to the resulting death. Such later events which break the chain and mean that the behaviour of the accused is no longer a significant cause of death are often referred to as “novus actus interveniens” (new intervening act). Examples of the kind of later events which could break the chain of causation include the behaviour of the victim, the behaviour of other people or natural events. The Codes expressly detail certain things which will not break the chain of causation. Where there is no specific Code provision, general common law rules of causation are applied.The relationship between common law principles of causation and CCQ, ss 295-​298; CCWA, ss 272-​ 275 is explained in Krakouer at [74] per McLure JA: Under s  270 of the Criminal Code (WA), any person who causes the death of another, directly or indirectly, by any means whatsoever, is deemed to have killed that other person. Sections  272 to 275 deal with causation in particular situations:  causing death by threats (s  272), acceleration of death (s  273), where death might have been prevented by proper precautions (s 274) and injuries causing death as a result of subsequent treatment (s 275). However, these specific sections

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do not, in my view, limit the generality of the causation requirement in s 270. The common law principles of causation provide guidance in that regard.

Causing death by threats: CCQ, s 295; CCWA, s 272 [4.100] 

When an accused threatens a victim, or intimidates or deceives the victim, and this causes a victim to do something which leads to their death then, according to CCQ, s 295; CCWA, s 272, the accused will be held to have caused the death. If the behaviour of the accused is found to have caused the victim to do something which leads to their death, then the behaviour of the victim will not be regarded as an intervening act. It must therefore be established that the behaviour of the accused caused the victim to behave in a way that led to her or his death. In Royall v The Queen (1991) 172 CLR 378, the victim died as a result of falling from the bathroom window of a flat on the sixth floor. There had been a violent argument between the victim and the applicant and it was unclear whether she had been pushed or had fallen out of the window. In the event that she had jumped, the question arose as to whether the applicant could be found to have caused the death of the victim. In this case, Mason CJ stated (at 389): It seems to me that, in the context of causation, the principle is best formulated as follows: where the conduct of the accused induces in the victim a well-​founded apprehension of physical harm such as to make it a natural consequence (or reasonable) that the victim would seek to escape and the victim is injured in the course of escaping, the injury is caused by the accused’s conduct. Whether it is necessary for the prosecution to establish also that the mode of escape adopted is a natural consequence of the victim’s apprehension for his or her safety does not arise here for the deceased had no means of escape other than jumping out of the window in the situation posited. The question could arise only in circumstances where the victim does something irrational or unexpected, in which event it might be more difficult to establish that the injury sustained was a consequence of the accused’s act and not the product of the victim’s voluntary act. In such a situation much may turn on the nature and extent of the well-​founded apprehension of the victim; and it is to be expected that persons fearful for their own safety forced to react on the spur of the moment will not always make a sound or sensible judgment and may act irrationally.

In the same case, McHugh J went on to say (at 450) that: 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.

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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.

In TB v The state of Western Australia [2015] WASCA 212, a group of young people chased the intoxicated victim at speed, following a prior interaction involving them harassing him, one of them trying to pick his pocket and assaulting him. The victim ran through a car park and as he went over a low retaining wall he fell, fatally striking the back of his head on the bitumen surface. The Court of Appeal confirmed the process for assessing liability under s 272 (CCQ, s 295) (at [162]-​[163]):

(a) the State must identify the alleged act done or omission made by the victim which was ‘caused’ by the alleged threats or intimidation of the accused; (b) the tribunal of fact must determine whether, as a matter of objective fact, the accused’s alleged threats or intimidation ‘caused’ the victim to do the alleged act or make the alleged omission; (c) as to factual causation, the accused’s alleged threats or intimidation do not have to be the sole, direct or immediate cause of the victim’s alleged act or omission; it is sufficient, for the purposes of factual causation, if the tribunal of fact is satisfied beyond reasonable doubt that the alleged threats or intimidation were, as a matter of objective fact, a cause; and the tribunal of fact is to determine factual causation by applying common sense to the facts as the tribunal finds them; and (d) as to legal causation, the tribunal of fact must be satisfied beyond reasonable doubt that, as a matter of objective fact, the accused’s alleged threats or intimidation contributed substantially or significantly to the doing of the victim’s alleged act or the making of the victim’s alleged omission. As to whether the victim’s alleged act or omission ‘resulted’ in his or her death, within s 272:

(a) the word ‘results’, in the context of the phrase ‘do an act or make an omission which results in the death of that person’, connotes that the victim’s death was a consequence of the victim’s alleged act or omission; and

(b) the tribunal of fact must be satisfied beyond reasonable doubt that, as a matter of objective fact, the victim’s alleged act or omission ‘resulted’ in his or her death (that is, the death was, as a matter of objective fact, a consequence of the alleged act or omission).

Furthermore, the Court confirmed that s 272 (CCQ, s 295) does not require establishing that the victim’s behaviour was reasonably foreseeable (at [178]): I have held that, on a proper construction of s 272, the reasonable foreseeability of the victim’s alleged act or omission, in response to the accused’s alleged threats or

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As to whether the accused’s alleged threats or intimidation ‘caused’ the victim to do an act or make an omission, within s 272:

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intimidation, is not mandated in the language of the provision or, in the statutory context, an essential aspect of the concept embodied in the word ‘causes’ in s 272. Also, I have held that, on a proper construction of s 272, the reasonable foreseeability of the victim’s death, as an alleged consequence of his or her alleged act or omission, is not mandated in the language of the provision or, in the statutory context, an essential aspect of the concept embodied in the word ‘results’ in s 272.

Acceleration of death: CCQ, s 296; CCWA, s 273 [4.110] 

Where a victim has a disease or disorder and all that the accused does is hasten death, they will still be held to be the cause of death. For instance, where a victim is dying and the accused administers drugs to speed up the death of the victim, the accused cannot argue that he or she did not cause death because the victim was going to die anyway. When injury or death might have been prevented by proper precaution: CCQ, s 297; CCWA, s 274 [4.120] 

If an accused causes bodily injury to the victim and then the victim dies, the accused will be held to have caused death even if death could have been avoided by proper precaution on the part of the victim, or by proper care and treatment. Thus, the accused cannot argue, for instance, that the behaviour of the victim in not seeking treatment broke the chain of causation. In the case of R v Blaue [1975] 1 WLR 1411, the appellant stabbed the victim, which led to significant blood loss necessitating a blood transfusion to save her life. However, the victim refused a blood transfusion because she was a Jehovah’s Witness. The appellant argued that the victim’s refusal to have a blood transfusion had broken the chain of causation linking the stabbing to her death. This argument was rejected and the court stated (at 1415) that: It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that this victim’s religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable.

Similarly, in R v Bingapore (1975) 11 SASR 469, the fact that the victim left the hospital against the advice of the medical staff did not break the causal chain connecting the original actions of the appellant (beating the victim) to the eventual death of the victim.

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Injuries causing death in consequence of subsequent treatment: CCQ, s 298; CCWA, s 275 If an accused does grievous bodily harm to the victim and the victim then seeks medical treatment, the accused will still be held to have caused death even if the victim dies as a result of the treatment received.Thus, the accused cannot argue that the treatment broke the chain of causation, provided that the treatment was reasonably proper in the circumstances and was applied in good faith. Even if the treatment is unsuccessful, it still may be reasonably proper. The section relates to “the circumstances as viewed by the medical attendants at the particular time or period, according to the reasonable information then at their command”: Levy v The King (1949) 51 WALR 29 at 33 per Wolff J. An issue that may arise is defining what amounts to medical treatment. In R v Cook (1979) 2 A Crim R 151, the appellant stabbed the victim, who was then taken to hospital where he later died as a result of a pulmonary embolism. The hospital staff had decided against administering anti-​coagulant drugs (which would have reduced the risk of an embolism) because of the risk of haemorrhage, which could have rendered the victim paraplegic. In this case it had to be determined whether a decision by the medical staff not to administer a certain drug that could save life could amount to “treatment”. Lucas J found (at 154) that: In my opinion, the word “treatment” in s 298 [CCWA, s 275] extends to the whole management of the patient, to everything that is done in accordance with that management, and also to things which are not done as a result of a decision which is deliberately taken with regard to the management of the patient.

Connolly J also considered in obiter in R v Kinash [1982] Qd R 648 at 650 whether turning off a life support system could be considered treatment: In the circumstances there is no point in discussing the question whether the disconnection of the life support system was surgical or medical treatment within s 298, although the evidence that it would have been reconnected if any spontaneous respiration had occurred provides support for the view that it was an act in the course of the management of the patient’s condition.

A defect, weakness or abnormality in the victim As noted above, it was stated in R v Blaue [1975] 1 WLR 1411 at 1415 that a long-​standing policy of law is that “those who use violence [4.140] 

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[4.130] 

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on other people must take their victims as they find them”. This means that once an accused inflicts harm on the victim and the victim dies, the accused will be held to have caused death even if the death would not have occurred had the victim not had a defect, weakness or abnormality:  see CCQ, s 23(1A); CCWA, s 23B(3). In relation to CCQ, s 23(1A), it has been found that the “abnormality” need not be “constitutional” but may be the result of a medical intervention designed to address a constitutional defect. This may include, for instance, the condition of a person who had lens implants in the course of surgery to remedy cataracts. McMurdo P stated in R v Steindl [2002] 2 Qd R 542; (2001) 124 A Crim R 520; [2001] QCA 434 at [28]-​[29] (references omitted):3 Indeed, it seems unlikely the legislature would wish to so limit the words “defect, weakness, or abnormality”. Modern surgical techniques increasingly involve the use of prostheses not only in eye surgery but also in other fields, for example, orthopaedics, hernia repairs and heart surgery. The words “defect, weakness, or abnormality” should here be given their current meaning consistent with changing technology: The Council of the Shire of Lake Macquarie v Aberdare County Council.The Macquarie Dictionary defines “defect” as “1. a falling short; a fault or imperfection. 2.  Want or lack, esp. of something essential to perfection or completeness; deficiency.” “Weakness” is defined as “1. a state or quality of being weak; feebleness. 2. a weak point, as in a person’s character; slight fault or defect.” “Abnormality” is defined as: “1. an abnormal thing, happening or feature; 2. deviation from the standard, rule or type, irregularity.” Here the lens implant remedied the inherent weakness or defect in the complainant’s eye caused by naturally occurring cataracts. But the lens implant left the complainant with an abnormality in that he was different from the “normal” person.As a result of the appellant’s act and Mr Fryer’s abnormality, Mr Fryer suffered grievous bodily harm which was not excused under s 23 Criminal Code. Were the appellant’s contention correct, any defect, weakness, or abnormality caused by a previous assault, surgery, motor vehicle accident, sporting or war injury would be excluded from the words “defect, weakness, or abnormality” in s 23(1A) Criminal Code as not being “natural” or “constitutional”. It is implausible that the legislature had such an intention in enacting s 23(1A) Criminal Code. Adopting either the purposive approach to statutory construction or simply giving the words their ordinary meaning, the term “abnormality” in s 23(1A) Criminal Code includes the condition of those who have had lens implants in the course of surgery to remedy cataracts.The learned primary judge was right to so conclude and to direct the jury accordingly. The remaining grounds of appeal against conviction must also fail. It follows that the appeal against conviction must be dismissed.

3

Note this case concerned the operation of CCQ, s 23(1A) in relation to non-​fatal offences (doing grievous bodily harm or assault occasioning bodily harm) not a fatal offence.

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Modern surgery has made commonplace the insertion of many kinds of prothesis, the transplantation of organs, and the performance of operations which intentionally leave behind supporting fibres, plates, screws and other items that are designed to assist the patient to get on with his or her life. In the context of medical and surgical intervention, these items or devices are invariably introduced to cure, supplement or relieve a natural abnormality, defect or injury. Within those words I  would include the consequences of trauma and disease. It would in my view be absurd in the present context to endeavour to distinguish between a natural abnormality and an abnormality as alleviated by medical or surgical intervention. I would add that in my view a surgical improvement of the present kind fairly fits the description “abnormality” within the ordinary comprehension of that term. … The term “abnormality” in my view would include transplanted organs, scars (natural or surgical) and would include other abnormalities such as fragments of shrapnel or a coin lodged in a digestive organ. I will leave open the question whether alterations for purely cosmetic purposes should properly be so regarded. The wearing of ornaments or jewellery would, however, not seem to fit within the above terms, and if such an object produced a more serious injury than was reasonably foreseeable, a Van Den Bemd defence would still appear to be available.

Natural events [4.150] 

Where the intervening cause is a natural event, it will generally only be found to be a novus actus interveniens and have broken the chain of causation when it is something extraordinary, rather than an ordinary occurrence. For example, in R v Hallet [1969] SASR 141, the accused violently assaulted the victim and then left him on the beach with his feet in the sea. The tide came in and drowned the victim. It was found that the ordinary operation of natural forces will not break the chain.This is because the risk of a natural occurrence is not something unconnected with the behaviour of the accused; rather, it is a risk created by the behaviour of the accused. However, an extraordinary occurrence, such as a tidal wave, is not something which could be expected to happen and therefore this would break the chain of causation. Behaviour of other people [4.160] 

The behaviour of another person will not break the chain of causation if it is closely connected to the act or omission of the accused or if it was reasonably foreseeable as a result of the behaviour of the accused. Where the intervention of the third party is a “free, deliberate and informed”

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Thomas JA also added (at [57]-​[59]):

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choice not influenced by the behaviour of the accused, and where it was not a foreseeable result of the behaviour of the accused, it may break the chain of causation: R v Pagett (1983) 76 Cr App R 279 at 288-​289. In R v Pagett, the appellant grabbed a girl and held her in front of him while he shot at police officers who were trying to arrest him. The police officers returned fire in the dark in defence and shot the girl, killing her. It was found that the death of the girl was caused by the behaviour of the appellant. The action of the police officers did not introduce a new intervening cause because it was a foreseeable response to the behaviour of the accused. Thus, the act or omission of another person will only break the chain of causation where it is “so independent of the act of the accused that it should be regarded in law as the cause of the victim’s death, to the exclusion of the act of the accused”: R v Pagett (1983) Cr APP R 279 at 288. Causation by failing to act [4.170] 

A general principle of criminal law is that a person cannot be liable for failing to act (for instance, for failing to save a person drowning in a pool) unless they had a duty to act. Therefore, a person will not be found to have caused a result because they did nothing to avert that result unless they had a duty to prevent that result occurring –​eg if it was the person’s child in the pool or the person was employed as a lifesaver. In relation to offences against the person (fatal and non-​fatal), the relevant duties are found in CCQ, ss 285-​290; CCWA, ss 262-​267. Two duties may arise on the same set of facts, for example, in R v BBD [2007] 1 Qd R 478 the prosecution’s case was that the appellant had both a duty to take care of her grandchildren (CCQ, s 286) and a duty as a person in charge of a dangerous thing (CCQ, s 289), in this case a forklift. In all these cases where a person has a duty to act, the person is not required to do everything possible to avert harm but to do whatever they reasonably can do to avert the harm. In R v Clark (2007) 171 A Crim R 532; [2007] QCA 168, it was found that a person will be held to have caused a result under CCQ, s 289; CCWA, s 266 where there is a failure to take reasonable steps to avoid danger. The question of what steps are reasonable is a question of fact to be determined by assessing how extreme and obvious the danger is and how much opportunity the person had to avert the risk of injury. Duty to provide necessaries [4.180] 

A person has a duty to provide the necessaries of life to anyone they have taken into their care who cannot withdraw themselves from that

care and who cannot care for themselves –​for instance, because of their age, sickness, unsoundness of mind, or detention:  CCQ, s  285; CCWA, s  262. If a person fails to provide the person under their care with the necessaries of life, they will be held to have caused whatever consequences result to the person from not receiving those necessaries. This duty can be imposed on a person through contract or by law, or by any lawful or unlawful act. A duty arising through contract occurs, for instance, in the case of a nursing home, which has a contract to care for a person. A duty incurred through lawful action would arise where a person takes into their care an elderly or ill relative who cannot look after themselves: see, for example, R v Instan [1893] 1 QB 450; R v Stone & Dobinson [1977] QB 354. The necessaries of life are things that the person needs to survive. In R v Macdonald and Macdonald [1904] St R Qd 151, a girl was brought to live with her father and stepmother. Seven months later the girl died from exhaustion, caused by the drain on her system from suppurating sores on her body. Medical evidence revealed that the sores were so severe that for some time before death the girl would not have been able to look after herself. No medical assistance had been called to treat the girl and it was evident that had the sores been treated at an earlier stage, death could have been avoided. It was discussed in this case (at 177-​178) what the phrase “necessaries of life” encompasses: There arose, then, a duty on the prisoners to provide for the girl the necessaries of life. What were those necessaries? In this case it is admitted that food and clothing were two of them, but it is denied that medical aid and remedies were … Now as to medical aid. Is that a necessary of life? That it might be in such a given case was so held in R v Senior [[1899] 1 QB,  283]. In The King v Brooks [1902, 5 Canadian Criminal Cases 372], the necessaries of life are stated to be such necessaries as tend to preserve life. I think it is common knowledge, and, I think, common sense, that medical aid and remedies promptly applied and administered do tend to, in many cases, prolong, if not altogether preserve, life. In this case the medical evidence was that proper treatment of the girl in the earlier stages could have prevented her from reaching the stage she did, and that there was no reason why she should not have been cured; that the life of the girl could have been saved if the witness (Dr Hewer) had been called in two or three months before death; that treatment by a competent person would have prolonged life. Clearly, therefore, here medical aid and remedies were necessaries of life.

This duty was discussed more recently in Heaton v Western Australia [2013] WASCA 207; (2013) 234 A Crim R 409. This case concerned an alleged failure by the appellant to provide the deceased with the necessaries of life, namely medical care, after the deceased was suffering from a heroin overdose. The headnote to the reported version of the case states that:

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The appellant was convicted of manslaughter following trial. The deceased requested that the appellant introduce her to heroin, and he injected her. She became intoxicated by it and subsequently could not be awoken. The appellant put the deceased into his car unconscious, and drove to another address, where a witness told the appellant the deceased needed resuscitation. The appellant rejected this repeated suggestion, and continued on the journey to purchase amphetamine and thereafter drove to a service station.The deceased was no longer breathing, and the appellant tried first aid and an ambulance was called. She died of acute alcohol and heroin intoxication. The prosecution was based on the appellant’s failure to provide medical assistance while under a duty to do so. He appealed against his conviction and sentence, submitting the trial judge erred in his directions to the jury on the appellant’s duty, on causation, about having charge of another, and about a possible defence of mistake of fact.

The appeals were dismissed. Pullin JA stated at [18]: The appellant was charged with manslaughter. That required proof that the appellant killed the deceased. If a person comes under the duty set out in s 262 of the Criminal Code and if a person dies in consequence of that breach of duty, then the person committing the breach is held to have caused that death and therefore killed that person. Such a killing would be unlawful unless authorised, justified or excused by law. One of the elements of a charge of manslaughter is that the killing was unlawful. Where the prosecution alleges, as it did here, manslaughter by breach of the duty to provide the necessaries of life, a breach of the duty imposed by s 262 becomes an element of the offence.

Mazza JA also observed at [123]: First, the question of whether a person has charge of another is a question of fact except where the law imposes such a duty: R v Macdonald [1904] St R Qd 151. Second, the duty to provide the necessaries of life may be voluntarily assumed: Burns v The Queen at [97]. Third, breach of the duty does not depend upon an intention on the part of the person on whom a duty is cast. Breach occurs by virtue of the omission to perform the duty. Fourth, the words “any omission to perform that duty” are broad enough to include both willed and negligent omissions: R v Young [1969] Qd R 417. Fifth, where, as in this case, it was alleged that the breach was negligent, an accused cannot be convicted unless the prosecution establishes beyond reasonable doubt that the appellant’s conduct was criminally negligent: see by analogy the reasoning of the High Court in Callaghan v The Queen (1952) 87 CLR 115. Sixth, where the alleged offender is in breach of his or her duty to provide the necessaries of life, he or she is held to have caused any consequences to life and health that result.

The argument that in cases of a “volunteer” the duty to provide the necessaries of life only arises once the volunteer appreciates that someone’s life is in danger was rejected. The duty arises where a person takes charge of another who is unable to withdraw from such a charge and provide herself or himself with the necessaries of life (at [44] per Pullin  JA; at [146] per

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I digress to observe that if s 262 of the Criminal Code is to be construed as imposing a legal duty to provide medical treatment against the wishes of a mentally competent patient, it would represent a drastic alteration of the common law position. That is because it would require a medical service provider who is under a common law duty to not provide services against the wishes of a patient, to provide services against the patient’s wishes or face criminal prosecution for not doing so. Given the strength of the principle of self-​determination to which I  have referred, it seems inherently unlikely that the Parliament intended such a drastic change when enacting s 262 in its current form, and I would only conclude that it was Parliament’s intention to make such a drastic change if compelled to that conclusion by the clear and unequivocal language of the section. It seems to me that there is no such clear and unequivocal language in that section and that therefore the first answer to the proposition that s 262 might apply to the circumstances of this case is that the section should not be read as extending to the imposition of duties which would be unlawful at common law. I have not been able to find any previous cases dealing with the scope and application of s  262, or any similar statutory provision, in circumstances such as these. On a superficial reading of s 262, it might be thought to apply to this case and to impose a duty on Brightwater to provide Mr Rossiter with the necessaries of life, irrespective of Mr Rossiter’s wishes. That is because the section appears to apply in circumstances where a person has charge of another who is by reason of sickness unable to withdraw himself from such charge and who is unable to provide himself with the necessaries of life. However, upon a more considered reading, it is clear that the section is aimed at a wide variety of circumstances in which, by reason of age, sickness, mental impairment, detention or any other cause, a person lacks the capacity to control or direct their own destiny and to provide themselves with the necessaries of life. Put another way, it seems to me that in s 262 the reference to a person “having charge of another” is a reference to a person who, by reason of one or more of the various disabilities identified in the section, lacks the capacity to direct or control their own destiny and is therefore dependent upon the person “having charge” of them. Mr Rossiter lacks the physical capacity to control his own destiny, but enjoys the mental capacity to make informed and insightful decisions in respect of his future

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Mazza JA). However, as Mazza JA stated at [147]: “This is not to say that an accused’s knowledge as to the victim’s need to be provided with the necessaries of life is irrelevant. His knowledge, or lack of it, is relevant to the question of whether he breached the duty and whether the breach was to the criminal standard.” It has been observed that, in certain circumstances, CCWA, s 262 does not apply to a health care provider who ceases to provide nutrition and hydration to a person in their care who has full mental capacity to make and communicate an informed decision to discontinue the provision of these necessities. In Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84, Martin CJ stated (at [38]-​[42]) that:

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treatment. In that latter respect he is not relevantly within “the charge” of Brightwater. Rather, Brightwater is, in that respect, consistent with the well-​established common law position to which I have referred, subject to Mr Rossiter’s direction. There is another reason why, in my view, s 262 might have no application to the circumstances of this case. Mr Rossiter has the capacity to give directions as to his future care, and it seems may have the financial capacity to implement those directions. There would be nothing preventing him from finding another service provider, and discharging himself from Brightwater and into the care of that other provider. If that were the case, he would not therefore be a person who is “unable to withdraw himself ” from the charge of Brightwater, but I lack the evidence to arrive at any final conclusion on this aspect of the possible application of s 262. I therefore conclude that s  262 of the Criminal Code does not impose upon Brightwater a duty to provide the necessaries of life to Mr  Rossiter against his wishes.

Martin CJ also added at [43]: “Even if I am wrong in that view, in my opinion, s 259 of the Criminal Code provides Brightwater with a good defence to any claim that it would contravene the Criminal Code by discontinuing treatment in accordance with Mr Rossiter’s informed decision to that effect.” Duty of person who has care of a child [4.190] 

A person who has care of a child under the age of 16 (Qld) or who has care of a child under the age of 16 in the person’s household (WA) has a duty to provide that child with the necessaries of life: CCQ, s 286; CCWA, s 263. A failure to do so will mean that the person will be deemed to have caused whatever results to the life or health of the child due to not receiving those necessaries (whether the child is helpless or not). In State of Queensland v B [2008] QSC 231, one of the issues considered was whether it would be lawful for the hospital to terminate the pregnancy of a 12-​year-​old girl. It was stated that the definition of a “person who has care of a child” (CCQ, s 286) is extensive but not exhaustive. It was found that the definition “is capable of extending to the hospital and doctors who have undertaken the care of B” (at [22] per Wilson J). Duty of persons doing dangerous acts [4.200] 

A person who is doing anything that may be dangerous to human life, including surgery, has a duty to have reasonable skill and use reasonable care to ensure that another person’s life is not endangered:  CCQ, s  288; CCWA, s 265. Surgical treatment in this context includes (R v Patel (2012) 247 CLR 531 at [26] per French CJ, Hayne, Kiefel and Bell JJ): all that is involved, from a recommendation that surgery should be performed, to its performance and the post-​operative care which is necessary to be given or supervised by the person who conducted the surgery. The duty imposed by s 288

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may be breached by a discrete act of gross negligence in carrying out the surgical procedure or if gross negligence attends the making of judgments about a patient’s condition and the risks to the patient of the surgical procedure.

Nonetheless, even if the word is given its ordinary, every day meaning, it cannot be doubted that in identifying necessity, many of the issues discussed in the cases at common law would logically arise. Certainly the immediacy of the harm which gave rise to the alleged necessity would be a relevant consideration. The necessity must be to preserve the patient’s life or health, but the requirement of immediacy is one which is, I think, quite critical.

Duty of persons in charge of dangerous things [4.210] 

A person who has control of a dangerous thing (whether animate or inanimate) has a duty to take precautions to ensure that the thing does not endanger anyone:  CCQ, s  289; CCWA, s  266. In 2009, s 266 of CCWA was amended so that the definition of “anything” now includes a source of ignition and a fire. Other examples of dangerous things include a flying fox ride (see R v Clark (2007) 171 A Crim R 532). In R v Dabelstein [1966] Qd R 411, the appellant inserted a pencil into the vagina of the victim. The pencil ruptured the vaginal wall and caused an uncontrolled haemorrhage, which killed the victim. The court considered whether the thing referred to in CCQ, s 289; CCWA, s 266 needs to be dangerous in itself. The majority view was that the thing need not be inherently dangerous –​it is sufficient that it is used in a dangerous way or carelessly managed: It is my opinion that s 289 [CCWA, s 266] applied to this pencil in the hand of the appellant in the circumstances.The section is not, in my view, concerned only with the objective nature of the thing in question –​with its designed characteristics or functions –​but also with the practical consequences of its being used or managed carelessly. A  knitting needle is an inherently harmless object by design, but a harmful one when thrust into someone’s body, and so is a sharpened pencil, and when so used neither is indistinguishable from a dagger. The box thrown from the pier in Franklin’s Case (1883) 15 Cox CC 163 was not a dangerous thing in its inherent characteristics, nor would it have been rendered dangerous by use for the purpose for which it was designed, probably the storing of bottles, but the use which Franklin made of it, ie hurling it from the pier into the water, exposed him to the consequences of criminal negligence when it hit and killed

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Unless it is an emergency situation, that is a situation of “necessity”, a person who fails to exercise reasonable care and skill will be found to have caused whatever results to the other person’s life or health. According to Fryberg  J, the word “necessity” as used in this section does not have the same requirements as the common law defence of necessity (R v Patel (No 7) [2013] QSC 65 at [14]):

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a swimmer. Holding this view, and finding nothing exceptionable in the learned judge’s explanation of criminal negligence, I think that the conviction cannot be disturbed on this ground.4

In R v Houghton (2004) 144 A Crim R 343, the majority of the Western Australian Court of Appeal found that a bodily fluid could be a dangerous thing in relation to the offence of grievous bodily harm. In Queensland, this issue has been left unresolved (see R v Reid (2006) 162 A Crim R 377 at [21] per McPherson JA –​a case also concerning a non-​fatal offence). Duty to do certain acts [4.220] 

A person who undertakes to do a certain act (for instance, in an employment situation), where a failure to do the act could endanger life or health, has a duty to do the act: CCQ, s 290; CCWA, s 267. If the person fails to act they will be held to have caused whatever the consequences are to life or health from not performing the duty. For example, in R v Watson, an experienced diver had undertaken to act as his wife’s dive “buddy” but failed to assist her when she was in distress. Rather he surfaced to seek help while she sank to the seabed.Therefore he failed his duty to her, which arose under CCQ, s 290.

Murder or manslaughter [4.230]  The

element of killing is the same for both murder and manslaughter. Once killing has been established, it is usual to first discuss whether the person could be liable for murder and only if this offence is not satisfied to move on to a discussion of whether the person can be liable for manslaughter. This approach is warranted because manslaughter is a residual offence, defined as any unlawful killing that does not amount to murder: CCQ, s 303; CCWA, s 280. Murder [4.240] 

The main instances in which a person will be liable for murder:

• where the person kills with an intention to kill; or 4

R v Dabelstein [1966] Qd R 411 at 430-​431 per Wantsall J, Stable J concurring. Hanger J dissented and found (at 416) that: “The section is designed, in my opinion, to deal with anything living or inanimate, which is innately dangerous; it is not designed to deal with things which are normally harmless, and only become harmful in particular circumstances …”

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• where the person kills with an intention to do grievous bodily harm (Qld); or with an intention to do a bodily injury which endangers or is likely to endanger life (WA); or • where a person kills with reckless indifference to human life (Qld only); • where the person kills by way of a dangerous act that was done for a further unlawful purpose. Murder with intention

In Queensland a person is liable for murder where they unlawfully kill another with intent to kill or with intent to cause grievous bodily harm: CCQ, s 302(1)(a). In Western Australia, murder requires that the offender unlawfully kill another, intending to kill (CCWA, s 279(1)(a)) or intending to cause bodily injury such that it would endanger, or be likely to endanger, life: CCWA, s 279(1)(b). While there is no definition in the Criminal Codes of “intention”, it is generally understood to cover two scenarios: • where it is the person’s purpose or desire to bring about a result (often called “direct intention”); or • where the person knows or foresees that it is virtually certain there will be a result (this is often referred to as “indirect” or “oblique” intention because an inference of intention may be made from such a high degree of foresight). In R v Willmot (No 2) (1985) 18 A Crim R 42, the accused beat and gagged the victim, causing the victim to die from asphyxiation. It was argued that “intention” has a narrow meaning such that a person only intends a result when they positively desire it. The trial judge directed that the end result need not be desired as long as “the accused realised that what he was doing ‘might’ or was likely to endanger … life or cause grievous bodily harm”: at 44. It was found that the directions given in this case “were confusing and contradictory”: at 44. This was because a jury could have been led to think that if a person foresaw that a result might happen, it was sufficient to find that they intended the result. However, such a conclusion should only be reached where the accused foresaw the result with a high degree of probability. According to Campbell J (at 44-​45): Conceivably, some members of the jury could have acted under the impression that all they had to be satisfied of was that the appellant foresaw the outcome of his conduct as a possibility. In Hyam’s case, the direction which Their Lordships considered sufficient was:

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[4.250] 

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If you are satisfied that when the accused set fire to the house she knew that it was highly probable that this would cause death or serious bodily harm then the prosecution will have established the necessary intent. The balance of opinion was in favour of the view that the element of intention in murder was established if the jury were satisfied that the accused apprehended that the risk of the stated consequence occurring was highly probable. The case did not decide, as the headnote in the law reports may suggest, that it was enough if the consequence was apprehended to be probable. Lord Hailsham regarded only consequences foreseen as a moral certainty as intended.

Connolly J also explained (at 47): In charging the jury elaboration or paraphrase of what is meant by intent should be avoided: Moloney [1985] 2 WLR 648 at 664. The jury should of course be told in appropriate cases that intention is not the same as motive or desire. They should also be told that they are to decide whether the intention is established on the whole of the evidence. Thus, in this case, the appellant denied having formed any intention to kill. But it was clearly open to the jury to conclude that the cruel death which this young woman suffered must have been and in fact was intended by him. Should there be direct evidence of the accused’s awareness that death or grievous bodily harm was a probable result of his act, they may properly be directed that if they accept that evidence, it is open to them to infer from it that he intended to kill or do grievous bodily harm as the case may be … [4.260] In R v Woollin [1999] 1 AC 82, the House of Lords confirmed that

an inference of intention can only be made where the accused foresaw the result as a virtual certainty. In the Queensland case of R v Reid (2006) 162 A Crim R 377 (a case concerning a non-​fatal offence), a narrow view was taken that “intention” only means a person’s purpose. These judgments are, however, compatible. A person intends a result when they desire that result to come about or where the result is the purpose of the person’s behaviour (direct intention). A  person may also be found to have intended to bring about a result where they knew or foresaw that it was virtually certain that such a result would occur (indirect intention). In this case intention is inferred from what the person knew or foresaw. However, because this is an inference, other evidence may show that this inference is incorrect and the person did not actually intend the result. For instance, in Turner v The Queen [2004] WASCA 127 (Turner), it was found that anger might be a factor which affects a person’s ability to form intention. In Turner, it was found that a deliberate frenzied stabbing might suggest that the accused must have intended to kill or do grievous bodily harm or bodily injury likely to endanger life. However, there may be other factors which indicate that the offender did not actually form the requisite intention. As Wheeler J stated (at [19]-​[20]):

The process of forming an intention is a mental process involving the capacity to reason and to understand what the consequences of an action may be. Anger is an emotion, a state of feeling rather than a state of mind. Indeed, Wylde’s Dictionary (Wylde Universal Dictionary of the English Language, London) defines emotion in one of its uses as “any of the feelings, contrasted with the mental processes of reasoning” (emphasis supplied). However, it is common experience that there may on occasion be an interaction between states of emotion or feeling, and the ability to reason or the process of reasoning, particularly when emotions are very heightened. In this case, for example, it would have been open to the jury to consider the possibility that the appellant was in such a state of anger at the time that he stabbed the deceased, that although he lashed out at her intending to harm her, he did not stop to contemplate with any degree of precision what harm would or might flow from the attack which he launched. In that sense, the appellant’s anger would have been a matter which the jury could consider, and it was wrong for his Honour to direct them as he did that, as a matter of law, it did not affect the issue of guilt.

In Zaburoni v The Queen [2016] HCA 12 the High Court of Australia considered the meaning of intention in the CCQ. Kiefel, Bell and Keane JJ held that (at [14]-​[15]): 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. 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.

For further discussion of the meaning of intention, see [5.190] Intention to kill [4.270] 

In both jurisdictions a person is liable for murder if they intend to kill a person. If a person intends to kill one person but in fact kills a different person, they can still be liable for murder even if they did not intend to hurt the person actually killed: CCQ, s 302(1)(a) and (2); CCWA, s 279(1)(a), (b) and (2).

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Intention to do grievous bodily harm; intention to do a bodily injury which endangers or is likely to endanger life [4.280] 

A person can be liable for murder where they did not intend to kill, but intended to do grievous bodily harm (CCQ, s  302(1)(a)) or intended to do a bodily injury which endangers, or is likely to endanger, life: CCWA, s 279(1)(b). “Grievous bodily harm” is defined in CCQ, s 1 as: (a) the loss of a distinct part or an organ of the body; or (b) serious disfigurement; or (c) any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health; whether or not treatment is or could have been available.

When considering reform of the law of homicide in Western Australia, in 2007 the Law Reform Commission of Western Australia recommended that “murder” should be redefined as the grievous bodily harm rule was “too broad for the purpose of classifying conduct as murder because it covers conduct that is not life threatening”.5 The Commission suggested that changing the requirement for murder to an intention to endanger life would bring this form of murder closer to the form requiring an intention to kill. The Commission also discussed whether the nature of the injury should be determined objectively or subjectively  –​that is, whether the offender must foresee that the injury would endanger life. The Commission was of the view that “the failure to think about the consequences to human life of inflicting a life-​threatening injury is sufficiently blameworthy to justify a conviction for murder”.6 The Criminal Code was amended according to the recommendations of the Commission. Therefore the accused can be liable for murder where he or she intends to kill or inflict a life threatening injury or intends to inflict an injury which he or she does did not intend to endanger life and does not foresee will endanger life, provided that an ordinary person foresees that the injury was likely to endanger life. For the meaning of “likely”, see [4.300].

5

Law Reform Commission of Western Australia, Review of the Law of Homicide, Final Report (Project No 97, September 2007) p 48.

6

Law Reform Commission of Western Australia, Review of the Law of Homicide, Final Report (Project No 97, September 2007) p 50.

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Reckless indifference to life (Queensland only)

Murder through a dangerous act done for a further unlawful purpose [4.290] 

A person can also be liable for murder even where they did not intend to harm the person killed, provided that the death was caused through an act that was likely to endanger life and which was done while prosecuting an unlawful purpose: CCQ, s 302(1)(b); CCWA, s 279(1)(c).7 Act that is likely to endanger life [4.300] 

The act that causes death must have been one which was likely to endanger life. This refers to the likelihood that the life of the victim would be endangered, and not to the likelihood of causing death (Macartney v The Queen [2006] WASCA 29; (2006) 31 WAR 416 –​see particularly [139] per Wheeler JA). There are several cases which suggest that the word “likely” should be given its ordinary meaning and understood as a substantial, “real and not remote” chance of the result occurring: Boughey v R (1986) 161 CLR 10; R v Hind & Harwood [1995] QCA 202; (1995) 80 A Crim R 105. While this understanding of likely has been accepted it has been suggested that the term might be open to reconsideration in future. For instance, in R v Trieu, Fryberg J referred to the judgement of Pincus JA in R v Hind & Harwood and stated (at [63]-​[65], references omitted): Applying the decision in Boughey to s  302(1)(b), his Honour held that “likely” “conveys the idea that the act in question created a substantial or real chance of danger to human life, regardless of whether that chance was more or less than 50 per cent”.

7

In CCQ, s 302(1)(c)-​(e), there are further ways in which a person can be convicted of murder in circumstances where there is no intention to kill or cause grievous bodily harm.

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[4.285]  Recently, in Queensland, the Criminal Code and Other Legislation Amendment Act 2019 (Qld) amended the Criminal Code (Qld) to insert a further mental state that will suffice for murder. A person can now be liable for murder in Qld “if death is caused by an act done, or omission made, with reckless indifference to human life”, CCQ, s 302(1)(aa). This further mental element already exists in other Australian states, for instance, in NSW. In NSW reckless indifference to human life has been held to mean doing an act with the foresight of the probability of death arising from that act (The Queen v Crabbe (1985) 156 CLR 464; see also Royall v The Queen (1991) 172 CLR 378; Campbell v R [2014] NSWCCA 175).

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Darkan v The Queen concerned the construction of “probable” in s 8 of the Code. The High Court identified four possible meanings: In this case the possible meanings of “probable” which were referred to were, in descending order of likelihood: (a) more probable than not; (b) a probability of less than 50/​50, but more than a substantial or real and not remote possibility; (c) a substantial or real and not remote possibility; (d) a possibility which is “bare” in the sense that it is less than a substantial or real and not remote possibility. (It will be observed that possibility (c) is the meaning which the High Court gave to “likely” in Boughey.) The court held that “probable” in s 8 has the meaning set out in sub-​para (b). It clearly distinguished this meaning from that in sub-​para (c). It cannot be said that the meaning of “likely” in s 271 is free from doubt. However the weight of authority favours giving it the meaning adopted in Boughey. It may be that after full argument and due consideration, it will be appropriate to adopt some different meaning.We have had no such argument in this appeal -​the appellant was unrepresented.We should not depart from authority by holding that “likely” means “probable” in the Darkan sense.

The next issue is how “dangerousness” is determined. In R v Gould and Barnes [1960] Qd R 283, the appellants placed a mixture of glycerine, Dettol and Surf into a woman’s uterus, intending that this mixture would cause an abortion. The liquid caused necrosis of the uterus wall and entered the victim’s bloodstream, causing her death. It was argued that to be liable for murder under CCQ, s 302(1)(b); CCWA, s 279(1)(c), the appellants must have foreseen that death was likely.This argument was rejected by Townley J (at 298): In my opinion there is no room for the insertion by implication of some such words as “which act is to his knowledge of such a nature, etc.” The test seems to me to be purely objective and the question posed for the jury: “Was the act in fact of such a nature as to be likely to endanger human life?”

In Stuart v The Queen (1974) 134 CLR 426, Stuart and Finch formed a plan to extort money from a nightclub owner by setting fire in the doorway of a nightclub, but they did not plan or intend to harm anyone. Stuart was not present when Finch carried out the plan and lit a fire in the foyer of the nightclub. The fire spread and killed 15 people. It was confirmed that the question of whether death was likely to occur is determined objectively and that therefore the question is whether an ordinary reasonable person in the shoes of the applicant would have recognised that there was a real chance that the act could endanger life. It is of no consequence that the accused did not think that the act could endanger life.

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In prosecution of an unlawful purpose

The fact that the act was likely to endanger life is not sufficient alone to make a person liable for murder; it must have been done for some further unlawful purpose. In Hughes v The King (1951) 84 CLR 170, it was made clear that a murder charge cannot stand where a person commits the dangerous act (in this case beating the victim) but does so for no purpose other than to assault the victim. Thus, the dangerous act cannot also be the unlawful purpose; there must be a further unlawful purpose. For instance, in Stuart v The Queen (1974) 134 CLR 426, the dangerous act of starting a fire was done for the unlawful purpose of extorting money. In R v Georgiou [2002] QCA 206; (2002) 131 A Crim R 150 it was held that any act done in the course of getting away after the commission of the offence would be an act done for an unlawful purpose. In R v Gould and Barnes [1960] Qd R 283, the dangerous act was done for the unlawful purpose of causing an abortion. As Philp J stated in R v Gould and Barnes (at 292): First it was argued that the act done by the appellants constituted their unlawful purpose so that they could not be guilty of murder under s 302 (2) [now CCQ, s  302(1)(b); CCWA, s  279(1)(c)]. Hughes v The King [(1951) 84 CLR 170] was relied on. In that case the appellant had killed a woman by repeatedly assaulting her. The trial judge directed the jury on s 302(1) [now CCQ, s 302(1)(a); CCWA, s 279(1)(a), (b)] and there certainly was clear evidence of an intent to do grievous bodily harm; but he also directed that the killing could be murder under s 302(2) [now CCQ, s 302(1)(b); CCWA, s 279(1)(c)]. The High Court held that s 302(2) [now CCQ, s 302(1)(b); CCWA, s 279(1)(c)] applied only when the dangerous act did not itself constitute the unlawful purpose; otherwise of course s 302(2) [now CCQ, s  301(1)(b); CCWA, s  279(1)(c)] would make a man guilty of murder if, without any intent to do grievous bodily harm, he killed by all unlawful act which, in fact, was likely to endanger human life. As appears from the report in [[1951] St R Qd 237] the point was raised in the Court of Criminal Appeal but counsel did not pursue it. But in the instant case there was a supervening unlawful purpose apart from the act which killed –​the purpose being the unlawful attempt to abort and s 302(2) [now CCQ, s 302(1)(b); CCWA, s 279(1)(c)] applies to such a case.8

Manslaughter [4.320] 

Where it has been established that there has been a killing, and it did not amount to murder, then it may be manslaughter. There is no need to prove any mental element in relation this offence because CCQ, s 23(2); 8

In CCQ, s 302(1)(c)-​(e), there are further ways in which a person can be convicted of murder in circumstances where there is no intention to kill or cause grievous bodily harm.

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[4.310] 

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CCWA, s 23(1) states that unless an offence provision expressly declares a specific intention to be an element of an offence, the result intended is not relevant. Neither of the Codes mention any mental element in the relevant provisions and therefore none needs to be proved:  CCQ, s  303; CCWA, s  280. Such killing will therefore be manslaughter provided that it was unlawful –​that is, there was no authorisation, justification or excuse: CCQ, s 291; CCWA, s 268. Manslaughter may therefore arise in two main ways: (i)

where the elements for murder can be established but the accused has some partial excuse or defence which reduces the charge of murder to one of manslaughter; and

(ii)

where the elements for murder cannot be established and the killing was unlawful.

Manslaughter due to partial defence or excuse [4.330] 

In Queensland, there are three situations that can reduce killing from what would otherwise be murder to manslaughter. These are killings that are in response to provocation (CCQ, s 304), killings where the offender suffers from diminished mental capacity (CCQ, s  304A) and killing in an abusive domestic relationship (CCQ, s  304B):  see Chapter  9, Provocation, Diminished Responsibility, Extraordinary Emergency and Duress. This latter excuse was introduced by the Criminal Code (Abusive Domestic Relationship Defence and Another Matter) Amendment Act 2009. It applies where a person has suffered serious domestic violence during an abusive relationship and they kill a person in the belief that this was necessary to protect themselves from death or grievous bodily harm. This belief must be reasonable, having regard to the domestic violence and all the circumstances. Acts of serious domestic violence can include behaviour that out of context appears to be trivial. In Western Australia, killing that could be murder may be reduced to manslaughter only where the person was acting in self-​defence but where the response of the person went too far and was not reasonable in the circumstances  –​that is, excessive self-​defence:  CCWA, s  248(3); see Chapter 10, Self Defence. Provocation as a partial defence to murder was abolished in Western Australia in 2008. Manslaughter because elements are missing for murder [4.340] 

When a person has killed and it cannot be established that they intended to kill, or intended to do grievous bodily harm (Qld); or intended a bodily injury that endangers or is likely to endanger life (WA), or that the

act causing death was a dangerous one done for an unlawful purpose, then the person could be liable for manslaughter, provided that the killing was unlawful. Because the excuse of accident (CCQ, s 23(1); CCWA, s 23B(2)) cannot be argued where a person has killed due to a negligent breach of the duty provisions in CCQ, ss  285-​290; CCWA, ss  262-​267, it must be determined how the accused actually killed the victim. There are two ways in which liability for manslaughter can be established. If there was an intentional infliction of force, there is no need to rely on the duty provisions to establish causation of death and the person may have the excuse of accident open to them. Where there is no intentional act causing death, it must be established that death was caused by the person failing to perform a duty, in which case the excuses of lack of will and accident cannot be argued but instead it must be established that the breach was due to negligence. Sometimes it may be possible to find liability either through an intentional act or through negligence. In Griffiths v The Queen (1994) 76 A Crim R 164 at 166-​170, it was unclear how a schoolboy had shot and killed a classmate: If the appellant in fact fired the bullet which entered the body of John Apps and thereby caused his death, the appellant’s criminal responsibility for manslaughter depended on proof that:  (i) the act of firing the bullet was willed or voluntary, that is, the act was not done independently of the exercise of the appellant’s will (s 23 [CCWA, s 234], first limb) and the death of the deceased did not occur by accident, that is, it was a foreseen or foreseeable result of that act (s 23 [CCWA, s 23B], second limb) or, alternatively, (ii) that the death of John Apps was caused by criminal negligence (s 289 [CCWA, s 266]) … In the present case, on the view of the evidence adopted by the majority, two schoolboys, best friends without any evidence of hostility between them, were out in the mountains together with a gun; the gun went off and killed one boy and the other went away and tried to lay a false trail about the incident but, when acknowledging that he shot or killed the other, said it was an accident. On that evidence, the possibility that the death was due to “accident” –​stumbling when the gun was cocked and loaded or some other kind of accident –​was clearly raised … That evidence clearly raised the issues to which s 23(1) [CCWA, ss 23A, 23B] relates. The alternative basis on which the accused might have been held criminally responsible for the fatal act is criminal negligence in the handling or firing of the gun so as to attract the operation of s 289 [CCWA, s 266] of the Code.

Intentional act manslaughter [4.350] 

When a person intentionally applies force to the victim which leads to the death of the victim, they can be liable for manslaughter unless they have authorisation, a defence or an excuse. A  common excuse that is raised in relation to manslaughter is accident:  CCQ, s  23(1); CCWA, s  23B(2). The word “accident” is not defined in the Codes; however, the

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excuse of accident requires that the accused did not intend or foresee the result (death) and an ordinary person in the situation of the accused would not foresee the result (death). Death will not be regarded as an accident if an ordinary person in the position of the accused would have reasonably foreseen the event as a possibility: R v Taiters [1997] 1 Qd R 333. Therefore, death will be regarded as an accident when it would not be foreseen by an ordinary person in the shoes of the accused, or is foreseen only as a remote or speculative outcome: R v Taiters [1997] 1 Qd R 333. An event that could be regarded to be an accident would be, for instance, where a person intentionally applies force to another, which causes some other event to occur, such as the person falling over, banging their head and dying. Death would be regarded as an accident if the accused did not intend or foresee that death would result from their act of applying force and the ordinary person in the shoes of the accused would not have foreseen that death could occur as a result of the actions of the accused. If death is found to be an accident, the person cannot be held liable for manslaughter. However, in such a situation a person could be liable for unlawful assault/​ striking causing death (see below at [4.370]): CCWA, s 281; CCQ, s 314A. The accused can be liable for this offence even where the death was not foreseeable to an ordinary person. In TB v The State of Western Australia [2015] WASCA 212, the question of whether the death would have been foreseeable to an ordinary person was correctly applied in case of young people was at issue (at [236]-​[238] Buss JA, Mazza JA and Chaney J concurring): The primary judge said, …, that he turned ‘to consider objectively, whether death would reasonably have been foreseen by an ordinary person applying the legal test’ to which he had referred. His Honour then said that an ‘ordinary person’ is ‘also one who is sober, as young as [the accused], and possessed with the knowledge that [the accused] had at the time’. … I consider that his Honour, in concluding that ‘ordinary [sober] young people of [the accused’s] age know that if a person falls over and hits his or her head on a hard surface, then they could sustain a brain injury and that brain injury could result in death’, took into account his Honour’s view that the scenario he described was ‘a topic that has been given a lot of attention in our community over the last few years’. It follows, by necessary implication, that his Honour thought the community within which the topic had received a lot of attention included the subset of ordinary sober young people of TB’s and DVH’s age. In my opinion, there is a material error in the primary judge’s process of reasoning on this point. First, the ‘topic that has been given a lot of attention in our community over the last few years’ is the so-​called ‘one punch death’ phenomenon. This scenario involves a person being punched or otherwise struck on the face or head, consequently falling and hitting his or her head on a hard surface, and suffering a brain injury which results in death. The phenomenon is materially different from the scenario which occurred in relation to Mr Litchfield; namely

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a person, adversely affected by alcohol, who is chased after having been assaulted and harassed; who has an extreme level of fear; who runs at speed, at night and in the locality I have described; who falls (perhaps after tripping); who suffers a brain injury upon striking his head on a hard surface; and who dies from the injury. Secondly, it was not reasonably open to his Honour, as the tribunal of fact, to infer, on the facts and in the circumstances established by the evidence, that the scenario which occurred in relation to Mr Litchfield would be known by ordinary sober young people, of TB’s and DVH’s age, and with their knowledge at the time of those facts and circumstances.

In my opinion, ordinary sober young people of the age of each of TB and DVH, and with his knowledge of the relevant facts and circumstances, would reasonably have foreseen, during the period after the beginning and before the end of the chase, that Mr Litchfield may have been injured during the chase. 290  However, it was not open to the primary judge to be satisfied beyond reasonable doubt that ordinary sober young people of the age of each of TB and DVH, and with his knowledge of the relevant facts and circumstances, would reasonably have foreseen, during any part of the period after the beginning and before the end of the chase, that Mr Litchfield’s death was a possible outcome of TB’s or DVH’s conduct in chasing Mr Litchfield (excluding possibilities that were no more than remote and speculative).

As a result, the conviction for manslaughter was set aside and replaced with a conviction for unlawful assault causing death. In contrast to the above situation, the accused cannot argue that death was an accident where that person intentionally applies force to the victim and the victim dies, but death would not have occurred had there not been a defect, weakness or abnormality in the victim (eg the victim had a thin skull or weak blood vessels): CCQ, s 23(1A); CCWA, ss 23B(3) and 23B(4).The Code provisions in both jurisdictions make it clear that an accused is not exempt from criminal responsibility in such cases even where the death was not reasonably foreseeable. This is due to the operation of the “egg-​shell skull” rule, which means that an accused person must take their victim as they find them and is therefore criminally responsible for the death even if this occurred because of a defect, weakness or abnormality in the victim: R v Steindl [2002] 2 Qd R 542; [2001] QCA 434 at [20]. In R v Martyr [1962] Qd R 398, the defendant punched the victim twice on the jaw, which caused the victim to die of a haemorrhage. It was found by expert medical evidence that it was extremely unlikely that the punches on the jaw would have caused such a haemorrhage if the victim had not had an inherent weakness in his blood vessels. The issue in this case was whether the defence of accident could apply to such a situation. Philp J found (at 414) that the defence of accident could not apply:

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It was therefore concluded (at [289]-​[290], Buss JA, Mazza JA and Chaney J concurring):

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In the instant case the appellant could not rely upon the first part of s 23 since the blows he struck did not occur independently of the operation of his will –​they were willed acts. But was Scott’s death an event or result which occurred by accident? I  will assume that Scott’s death would not have resulted from the blows if he had not been suffering from some invisible and highly unusual weakness or constitutional abnormality. Now the appellant was charged with killing a particular person  –​ Scott –​and the fact that Scott had a constitutional abnormality did not in my view make his death an “accident” as that word is used in the section. If a haemophilic bleed [sic] to death from a small cut, his death cannot be said to be an accidental outcome of the cut. The words under discussion I think have operation in the following circumstances. If a non-​fatal blow be struck and there supervenes upon the blow an unforeseeable happening whereby the actually fatal force is applied to the body of the victim, his resultant death occurs by accident. But that is not the case here, since here the death was the immediate –​the direct result of the willed act. What I have said does not only apply to homicide. If a man not knowing whether a vase is fragile or not, deliberately taps it and it thereupon shatters, the shattering, in my view, is not an event which occurs by accident.

In The State of Western Australia v Carkeek [2016] WASC 201, there was a scuffle and angry exchange of words between the accused and the deceased. It was alleged that during the scuffle the accused struck the deceased, but not in any way that materially contributed to death. Minutes after the altercation, the victim suffered an acute malignant cardiac arrhythmia, causing him to lose consciousness and collapse to the ground.  Soon afterwards he died. The question before the court was “if death or grievous bodily harm is indirectly caused to a victim by the deliberate use of force in circumstances where that death or harm would not have occurred but for an abnormality, defect or weakness in the victim, is the defence of accident still available?” (at [20]). Hall J found that the excuse of accident could still apply where death was indirectly caused (at [30]): The purpose of the eggshell skull exception in s 23B(3) is to ensure that those who cause death by the direct use of force against another person do not escape liability where death would not have resulted but for an underlying vulnerability in the victim. The intention is clearly to make such people responsible for their actions even where the consequences are greater than could be expected due to the vulnerability of the victim. But where death is indirectly caused questions of foreseeability would be expected to arise whether or not the victim is particularly vulnerable.

Note, however, that even if the excuse of accident were successful the accused could still be liable for unlawful assault/​striking causing death under CCWA, s 281; CCQ, s 314A, see [4.370]. For further discussion of the excuse of accident, see Chapter 11, Acts Independent of Will and Accident.

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Negligent manslaughter

Where the accused does not intentionally apply force to the victim, the accused can only be found liable for manslaughter if it is proved that they had a duty to prevent harm to the victim, which they failed to avert due to negligence. It must therefore be established that: (i)

the accused had a duty to prevent harm:  the duties are found in CCQ, ss 285-​290; CCWA, ss 262-​267;

(ii)

the accused failed in that duty; and

(iii)

the failure was due to negligence.

Once it has been established that the accused has a duty (for discussion of relevant duties see [4.180]ff), it must be found that they failed to avert harm to a person and this failure was due to negligence. Therefore, a breach of the duty imposed by the relevant section of the code becomes an element of the offence: see Macaree v Western Australia [2011] WASCA 207 at [260] and Heaton v Western Australia (2013) 234 A Crim R 409 at [18] (Pullin JA). Negligence in criminal law does not mean that a person was simply careless; they must have substantially fallen below the standard of behaviour expected of a reasonable person. In Callaghan v The Queen (1952) 87 CLR 115, the court considered whether the standard of negligence required for a manslaughter conviction was the civil law standard. It was found that the level of negligence required by the Codes is higher than the civil law standard (at 121-​124): But the question then arises what is the standard of negligence required by s 266 [CCQ, s  289] [under a charge of manslaughter] …? The words “use reasonable care and take reasonable precautions” smack very much of the civil standard of negligence; yet, particularly of late, defaults involving no moral blame at all are treated as exposing the party to civil liability for negligence in respect of any damage which results. It is out of keeping with the conceptions of the purpose of The Criminal Code to regard such defaults as making the person guilty of manslaughter … In Queensland in R v Scarth (1945) QSR 38, a majority of the Supreme Court, Macrossan SPJ and Stanley J, on the corresponding provisions of The Criminal Code 1899 to 1943 (Q) decided that the expressions “reasonable care” and “reasonable precautions” should be given a well-​established meaning which, in their Honours’ view, they possessed in Criminal Law and that the distinction between criminal and civil negligence should be maintained. Philp J dissented on the ground that “reasonable care” had been used for many years as defining the duty the breach of which supports a civil action for negligence, whereas the corresponding breach of duty required to support at common law a charge of manslaughter has been described by such epithets as “culpable”, “gross”, “criminal”. In the Supreme Court of New Zealand the same interpretation as that adopted by Philp  J had already been placed upon the provisions of the Code with reference to manslaughter by negligence: R v Dawe (1911) 30 NZLR 673; R v Storey (1931) NZLR 417.

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[4.360] 

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The question obviously is one of difficulty but in the end it appears to depend upon a choice between two courses. One is to treat the omission to perform the duty to use reasonable care and take reasonable precautions as a description of negligent conduct to be applied according to a single and unvarying standard no matter what the purpose for which the description is employed. The other is to recognize that it may have different applications when it is a description of fault so blameworthy as to be punishable as a crime and when it is used to describe a basis of civil responsibility for harm that is occasioned by the omission. It is to be noticed that in his Digest of the Criminal Law (art 222) Sir James Fitzjames Stephen defines this form of unlawful homicide as occurring when death is caused by an omission, amounting to culpable negligence, to discharge a duty tending to the preservation of life. He has already included among such duties “the duty of every one who does any act which, without ordinary precautions, is or may be dangerous to human life, to employ those precautions in doing it”. “Culpable negligence” is an expression which implies more than the negligence which gives rise to a civil liability. In his judicial capacity Sir  James Fitzjames Stephen in summing up to a jury explained as follows the neglect which may make a man guilty of manslaughter. “Manslaughter by negligence occurs when a person is doing anything dangerous in itself, or has charge of anything dangerous in itself and conducts himself in regard to it in such a careless manner that the jury feel that he is guilty of culpable negligence and ought to be punished. As to what act of negligence is culpable, you, gentlemen, have a discretion, and you ought to exercise it as well as you can”: Reg v Doherty (1887) 16 Cox 306, at p 309. In Andrews v Director of Public Prosecutions (1937) AC 576, at p 583 Lord Atkin deals with the common law felony of manslaughter a little differently:  “Simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied ‘reckless’ most nearly covers the case” … In Sir James Fitzjames Stephen’s History of Criminal Law, vol 3, pp 9–​11, there is a treatment of the common law in relation to killing by omission representing the same approach as these sections of the Bill exhibit. The author … deals with the question of the degree of want of care in the following passage: “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 negligence 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”. It will be seen that here as in his charge in Reg v Doherty (1887) 16 Cox 306 the author makes the word “culpable” perform the duty which the majority of the Supreme Court of Queensland felt must be done by the words “reasonable care and precaution” in The Criminal Code (Q) …

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The conclusion we have formed is that the expression “omission to perform the duty to use reasonable care and take reasonable precautions” which in effect is that of s 266 [CCQ, s 289] … must be regarded from the point of view of the context where it occurs. It is in a criminal code dealing with major crimes involving grave moral guilt. Without in any way denying the difficulties created by the text of The Criminal Code, we think it would be wrong to suppose that it was intended by the Code to make the degree of negligence punishable as manslaughter as low as the standard of fault sufficient to give rise to civil liability. The standard set … by s 266 [CCQ, s 289] … should, in our opinion, be regarded as that set by the common law in cases where negligence amounts to manslaughter.

Criminal responsibility therefore attaches only if there has been “criminal” or “gross” negligence. In R v Bateman (34), Hewart  LCJ said that whatever epithet be used, the standard of conduct must go beyond that relevant to a matter of compensation; it must be such as to show such disregard for the life and safety of others as to amount to a crime and to be conduct deserving punishment. In Nydam v The Queen (35), the requisite standard was said to involve “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”.

As noted above, the defence of accident cannot be raised in relation to this form of manslaughter (see CCQ, s 23(1); CCWA, s 23B(1)); however, the need to prove negligence performs a similar function to the excuse of accident in ensuring that a person is only convicted for taking risks that a reasonable person would foresee and would not take. Note also, that it is possible for a person to be liable for murder where they fail to perform a duty and do so not negligently but with an intention to kill the victim or do them grievous bodily harm (CCQ) or bodily injury that endangers or is likely to endanger life (CCWA). Unlawful assault causing death/​Unlawful striking causing death [4.370] 

If an accused intentionally applies force to the victim and this causes an event (for instance, the victim falls and bangs their head) that leads to the death of the victim, the accused may be able to argue the excuse of accident if the event was unforeseen and unforeseeable. If the excuse of accident (CCQ, s  23(1)(b); CCWA, s  23B) cannot be disproven beyond reasonable doubt, the accused will be acquitted of manslaughter. However, even in such circumstances where the accused would be acquitted of manslaughter due to the excuse of accident, in Western Australia he or she can be liable for

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The standard of negligence which will attract criminal liability was discussed further in Patel v The Queen (2012) 247 CLR 531 at [18] per French CJ, Hayne, Kiefel and Bell JJ:

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unlawful assault causing death:  CCWA, s  281 or in Queensland unlawful striking causing death: CCQ, s 314A. In Western Australia this requires proof that there was an unlawful assault (defined in CCWA, ss 222 and 223) and that the assault caused death. An accused can be liable for these offences even if he or she did not foresee the possibility of death and even if an ordinary person would not foresee that death was possible: CCWA s 281(2); CCQ, s 314A(2). In Queensland this offence does not require proof of an assault (s 314A(3)), rather it is satisfied by the accused unlawfully striking another person on the head or neck and causing (directly or indirectly) the death of that person. Striking is defined as “directly apply force to the person by punching or kicking, or by otherwise hitting using any part of the body, with or without the use of a dangerous or offensive weapon or instrument” (s 314A(7)). A person is not criminally responsible for this offence in Queensland if they strike the person as part of a socially acceptable function or activity (including a sporting event) and do so in reasonable circumstances (s 314A(4)). The offence of unlawful assault causing death was introduced in 2008 in Western Australia and in 2014 in Queensland in relation to community concerns that people were not being convicted for manslaughter for one-​ punch deaths. This offence does not displace the defence of accident for manslaughter; it merely provides an alternative offence where a person assaults or strikes another and the assault/​strike causes the death of the victim, but where death was not a foreseeable result of the assault. Attempted murder [4.380] 

Where a person tries to kill another but does not actually cause the death of the victim, they may be liable for attempted murder.The Codes provide general and specific attempt offences. Attempted murder is a specific attempt offence found in CCQ, s 306; CCWA, s 283. The definition of the general elements of attempt is found in CCQ; CCWA, s 4. For attempted murder, it must be shown that: • the accused intended to kill; • the accused began to execute their intention by an overt act indicating their intention and by means adapted to the fulfilment of the offence (CCQ, s  4(1)) or by an act that is more than merely preparatory to commission of the offence (CCWA, s 4); and • death is not caused. For further discussion of the definition of attempts, see Chapter 14,Attempts. Diagrams 4.1 and 4.2 show the paths to take to determine whether a person can be liable for murder or manslaughter in Queensland and Western Australia.

Diagram 4.1: Homicide offences in Queensland

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Diagram 4.2: Homicide offences in Western Australia

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Elements toolbox Murder Murder requires proof that an accused:

1.

Causes, directly or indirectly

2.

The  death

3.

Of a person capable of being killed

4.

With (a)

(b)

an intention: (i)

to kill; or

(ii)

to do grievous bodily harm (Qld); or (iii) to do a bodily injury that endangers or would be likely to endanger life (WA);



or

the act causing death was: (i)

one that was likely to cause death; and

(ii)

done for an unlawful purpose.

Manslaughter Manslaughter requires proof that an accused: 1.

Causes, directly or indirectly

2.

The  death

3.

Of a person capable of being killed

4.

And either: (a)

the accused intended to kill or do grievous bodily harm or a bodily injury that would endanger or would be likely to endanger life

but was: (i)

acting in response to provocation (Queensland only); or

(ii)

acting while in a state of diminished responsibility (Queensland only); or

(iii) acting in response to an abusive relationship (Queensland only)

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[4.390] 

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(iv)

(b)

acting in self-​defence but responded in a way that was not reasonable in the circumstances (excessive self-​ defence) (Western Australia only)

or the accused:

(c)

(i)

intentionally inflicted violence

(ii)

without an intention to kill or do grievous bodily harm or a bodily injury that endangers or would be likely to endanger life

(iii)

and the act was not one that was likely to endanger life or not done for an unlawful purpose

or the accused: (i)

had a duty to avert harm

(ii)

failed to avert harm

(iii)

was negligent in failing to avert harm

Guide to problem solving [4.400]  • Did the accused kill?

– Check meaning of “kill” in CCQ, s 293; CCWA, s 270



– Apply CCQ, s 293; CCWA, s 270 • Is the person capable of being killed?

– Check meaning of when a person is “capable of being killed” in CCQ, s 292; CCWA, s 269



– Apply CCQ, s 292; CCWA, s 269

• Is the person dead?

– Check meaning of “death” in s 45(1) of the Transplantation and Anatomy Act 1979 (Qld); s 13C of the Interpretation Act (WA)



– Apply s 45(1) of the Transplantation and Anatomy Act 1979 (Qld); s 13C of the Interpretation Act (WA)

• Did the accused cause death?

– Identify the steps to establish causation –​factual test and legal test: see Royall v The Queen or Krakouer v Western Australia



– Apply factual test



– Apply the legal test

– Determine which is the best test to apply

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– Determine whether there are any matters which may break the chain of causation

• Conclude whether the accused killed the victim • Assess whether the accused could be liable for murder or manslaughter

- Check the elements of murder: CCQ, s 302; CCWA, s 279



– Apply the elements of murder



– Conclude whether it is a case of murder



– Assess whether it can be a case of manslaughter

• Was there an intentional infliction of force? If yes, assess whether the killing was unlawful –​that is, was there any authorisation, justification or excuse? • If there was no intentional infliction of violence, was there a duty?

– Identify the duty provisions and which apply: CCQ, ss 285-​290; CCWA, ss 262-​267.



– Apply the duty provisions:

might



• Did the accused have a duty? If yes –​



• Did they fail to do what they reasonably could to avert harm? If yes –​



• Were they negligent in failing to do what they could to avert harm? If yes, the person is liable for manslaughter



• Conclude whether it is a case of manslaughter.

Revision questions 1.

What are the common elements of murder and manslaughter?

2.

What is the meaning of killing?

3.

What steps must be taken to establish causation?

4.

Can a person argue that they are not responsible for the death of the victim if they hit the victim and the victim dies because of a defect, weakness or abnormality?

5.

If a person causes bodily harm to the victim and the victim dies because they refuse to accept treatment which would save their life, can the person argue that this refusal broke the chain of causation?

6.

If a person causes grievous bodily harm to the victim and the victim dies because of the treatment they receive, can the person argue that the treatment broke the chain of causation?

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– Does any partial excuse apply to reduce the charge from murder to manslaughter –​if not, identify how the accused caused death

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7.

When can a person be held to have caused death when they do nothing?

8.

Can a person be liable for murder when they did not intend to kill or hurt anyone?

9.

When might a person be convicted of manslaughter even where they intended to kill the victim or do them grievous bodily harm or a bodily injury that would endanger or would be likely to endanger their life?

10.

Does the defence of accident apply to manslaughter?

Problem question Brad is arguing with Michael. He picks up a large crystal vase and hits Michael over the head with the vase. Michael is knocked unconscious. Brad calls an ambulance which takes Michael to the local hospital. Once Michael regains consciousness he tries to leave the hospital, claiming that he hates being in hospitals. The medical staff advise Michael that he should stay at the hospital for observation. Despite this advice Michael leaves the hospital and goes home. The next day Michael is returned to hospital in an ambulance. He is operated on but dies. Medical evidence reveals that it is unlikely that Michael would have died if he had been treated when he was first brought to the hospital. When interviewed, Brad says that he did not intend to kill Michael but he did intend to inflict a severe injury. Discuss whether Brad is liable for a homicide offence.

Answers to revision questions 1.

For both murder and manslaughter it must be established that the person killed and that the killing was unlawful: CCQ, s 300; CCWA, s 277.

2.

“Killing” is defined in CCQ, s 293; CCWA, s 270 as causing the death of a person directly or indirectly by any means whatever.

3.

To be liable for murder or manslaughter it must be established that the accused is the factual and the legal cause of death: Royall v The Queen (1990) 172 CLR 378; Krakouer v Western Australia (2006) 161 A Crim R 347; [2006] WASCA 81. Factual causation (sometimes called causal connection) is established using the “but for” test. The second test is called the legal test or the test of causal responsibility. In Royall v The Queen (1990) 172 CLR 378, four tests were identified for establishing legal causation (the operating and substantial cause test; the natural consequence

CHAPTER  4  FATAL OFFENCES      151

4.

Once an accused inflicts harm on the victim and the victim dies, the accused will be held to have caused death even if the death would not have occurred if the victim did not have a defect, weakness or abnormality: see CCQ, s 23(1A); CCWA, s 23B(3).

5.

According to CCQ, s 297; CCWA, s 274, if an accused causes bodily injury to the victim and then the victim dies, the accused will be held to have caused death even if death could have been avoided by proper precaution on the part of the victim or by proper care and treatment.

6.

According to CCQ, s 298; CCWA, s 275, if an accused causes grievous bodily injury to the victim and then the victim dies because of the treatment they receive, the accused will be held to have caused death provided that the treatment was reasonably proper in the circumstances and was applied in good faith.

7.

A person can only be found to have caused death where they do nothing if they had a duty to do something to prevent harm to the victim and they negligently failed in that duty. The duties are found in CCQ, ss 285-​290; CCWA, ss 262-​267.

8.

A person can be liable for murder even where they did not intend to kill the victim or do them grievous bodily harm, or a bodily injury which endangers or would be likely to endanger their life if the act causing death was one that was likely to endanger life and it was done for a further unlawful purpose: CCQ, s 302(1) (b); CCWA, s 279(1)(c).

9.

A person who intended to kill the victim or do them grievous bodily harm, or a bodily injury that endangers or would be likely to endanger their life, will be liable for manslaughter instead of murder if they killed due to provocation or diminished responsibility (Qld) or in excessive self-​defence (WA).

10.

It depends on how the person killed the victim. If the person caused death by an intentional infliction of force, the excuse of accident can apply. However, where a person does not intentionally apply violence, the case of manslaughter must be based on negligence and the excuse of accident does not apply. For such cases it must be shown that there was a duty to avert harm, which was breached, and that this breach was due to negligence.

Answer to problem question Brad could be held liable for the death of Michael if it is found that he unlawfully killed him. According to CCQ, s 300; CCWA, s 277, unlawful killing is either murder (CCQ, s 302; CCWA, s 279) or manslaughter: CCQ, s 303; CCWA, s 280. To establish either of these

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test; the reasonable foresight of the consequences test; and the novus actus interveniens test).

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offences it is necessary to prove that Brad unlawfully killed Michael. “Killing” is defined in CCQ, s 293; CCWA, s 270 and requires that Brad caused the death of a person. “Death” is defined in Transplantation and Anatomy Act 1979 (Qld), s 45(1); and Interpretation Act (WA), s 13C to mean that there has been an irreversible cessation of brain functioning or blood circulation. This is unproblematic in this case as the problem question states that Michael is dead. According to CCQ, s 292; CCWA, s 269, a person is capable of being killed if they fully emerge in a living state from their mother’s body. Clearly, Michael is a person capable of being killed. It must now be established that Brad caused the death of Michael. According to Royall v The Queen (1990) 172 CLR 378 and Krakouer v Western Australia (2006) 161 A Crim R 347; [2006] WASCA 81, there are two steps to establishing causation. First it must be shown that Brad is a factual cause of Michael’s death. This is done by applying the “but for” test. Michael would not be dead but for Brad throwing a vase at his head. Michael is therefore a factual cause of death. Second, it must be shown that Brad is a legal cause of Michael’s death. This may be done by using the operating and substantial cause test as identified in Royall v The Queen (1990) 172 CLR 378 and Krakouer v Western Australia (2006) 161 A Crim R 347; [2006] WASCA 81. In Krakouer (at [79]), it was stated that “it is enough to satisfy the requirement of causation for the purpose of attributing criminal responsibility if the act of the accused makes a significant contribution to the death of the victim”. The main cause of Michael receiving the injuries that eventually led to his death was the vase being thrown at him by Brad. Brad’s behaviour is therefore a significant cause of Michael’s death. It could be argued that Brad’s actions in leaving the hospital against the advice of the medical staff, thereby preventing him from receiving treatment at a time when it is likely his life could have been saved, break the chain of causation connecting Brad’s actions to Michael’s death. However, CCQ, s 297; CCWA, s 274 make it clear that where a person has done bodily harm to another and the victim dies it is immaterial that the death could have been prevented by proper precaution on the part of the victim. See also R v Bingapore (1975) 11 SASR 469 and R v Blaue [1975] 1 WLR 1411. Brad did bodily harm to Michael by throwing the vase and therefore he is liable for causing death even if death could have been prevented by Michael staying at the hospital for treatment. It has therefore been established that Brad has killed Michael. It must now be determined whether this is a case of murder or manslaughter. Murder requires either an intention to kill or do grievous bodily harm (CCQ, s 302(1)(a)) or an intention to kill or do a bodily injury that endangers or is likely to endanger life: CCWA, s 279(1)(a) and (b). Brad can be found liable for murder because, although he does not intend to kill, he did intend to do a severe injury, which suggests that he intended to do a bodily injury likely to endanger life.

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Critical thinking questions Should a person be liable for murder where they do not foresee that death might occur? Can you think of cases where a person intentionally kills another but is not deserving of a murder conviction? Was it necessary and appropriate to introduce the offence of unlawful assault causing death/​unlawful striking causing death? Do you agree with the operation of the “egg-​shell skull” rule?

Do you agree that provocation should be abolished? Do you agree with the introduction of a specific partial excuse for killing in response to domestic violence?

Readings • T Crofts and K Burton, Criminal Codes: Commentary and Materials (6th ed, Thomson Reuters/​Lawbook Co., Sydney, 2009) Ch 3. • T Crofts, Criminal Law in Queensland and Western Australia (2nd ed, LexisNexis, Sydney, 2014) Ch 2. K Burton, LexisNexis Questions and Answers: Criminal Law in Queensland and Western Australia (2nd ed, LexisNexis, Sydney, 2015) Ch 1

Chapter 4

Do you feel that the Codes give sufficient guidance on how to establish causation?

CHAPTER 5 Non-​fatal Offences Learning outcomes .......................................................................... 155 [5.10] Principles................................................................................ 156 [5.10] Assaults....................................................................................  156 [5.130] Endangering life........................................................................  167 [5.210] Threats and stalking...................................................................  175 [5.270] Elements toolbox................................................................. 180 [5.280] Guide to problem solving..................................................... 183 Revision questions .......................................................................... 185

Answers to revision questions ........................................................ 186 Answer to problem question .......................................................... 187 Critical thinking questions .............................................................. 188 Readings .......................................................................................... 188

Learning outcomes This chapter will enable you to: • Locate the sections of the Codes relating to assaults, compound assaults, offences of endangering life, threats and stalking • Identify and describe the elements of an assault • Establish whether a person can be liable for a common assault • Identify the meaning of “bodily harm” • Establish whether a person can be liable for assault occasioning bodily harm, assault with intent or serious assault • Identify and describe the elements of grievous bodily harm and wounding • Establish whether a person can be liable for a grievous bodily harm or a wounding offence • Identify the elements of threats and stalking • Establish whether a person can be liable for making threats or for stalking behaviour

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Problem question ............................................................................ 185

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PRINCIPLES Assaults Definition [5.10] 

“Assault” is defined in CCQ, ss 245 and 246; CCWA, ss 222 and

223 as: • an unlawful direct or indirect application of force to a person without that person’s consent; or • an unlawful threat or attempt to apply force to a person, indicated by a bodily act or gesture, without that person’s consent, where the accused has the actual or apparent present ability to carry out the threat or attempt. Elements of assault Application of force [5.20] 

The “force” required for this type of assault is very easily satisfied. It includes the merest touching, even if the touching is not hostile.The force may be applied directly –​such as by slapping a person –​or indirectly –​for example, by putting acid in a hand dryer so that it gets expelled onto the victim (DPP v K [1990] 1 WLR 1067) or causing a horse to trample a person: Gibbon v Pepper (1695) 2 Salk 637. Force may also be established where, although there has been no physical contact between the accused and the victim, injury or personal discomfort has been caused to the victim through the application of heat, light, electricity, gas, odour, or another substance or thing: CCQ, s 245(2); CCWA, s 222 (second paragraph). Threat or attempt to apply force [5.30] 

The second category of assault is where an accused does not actually apply force but attempts or threatens to apply force. For this form of assault there must be a bodily act or gesture that indicates that the accused is threatening or attempting to apply force of any kind to another person. Furthermore, the accused must have the actual or apparent present ability to apply the force. Because there must be a bodily act or gesture that shows the attempt or threat to apply force, words alone cannot amount to an assault in

Queensland or Western Australia; but words may fall into the category of threat offences: CCQ, ss 359; CCWA, ss 338A, 338B, discussed below (at [5.210]-​[5.230]). However, depending on how they are used, words can negate a threat. If a person makes it clear that they are not actually going to carry out the threat, then there will be no assault. In Turberville v Savage (1669) 86 ER 684, for example, the accused put his hand on his sword and stated that if it were not assize time (which it was), he would not take such language from the victim. He therefore indicated that he would not be applying force. Where the words are used to indicate that force will be applied unless the victim complies with certain directions, this will amount to an assault: see Rozsa v Samuels [1969] SASR 205. An example would be waving a knife at a person and saying “move out of my way or I will stab you!” It is not necessary that the person has the actual present ability to carry out the threat provided that they have the apparent present ability. For instance, a person can be liable for assault where they point a gun at another and threaten to shoot that person, even if the gun is not loaded:  see Brady v Schatzel [1911] St R Qd 206. Here they have an apparent present ability to shoot the person rather than an actual ability. Similarly, in R v Dale [1969] QWN 30 the accused put a ruler under his jacket, pointed it as though it was a gun and said to the shopkeeper “this is a stick up”. The use of these words, combined with the accused’s actions, meant that it was open to the jury to conclude that this was an assault. There was a threat with an apparent ability to carry it out. In Brady v Schatzel [1911] St R Qd 206 at 208, Chubb J also made it clear that the victim need not fear the application of force, provided they do think that force will be applied: In my opinion, it is not material that the person assaulted should be put in fear, as observed by Parke B in R v St George [(1840) 9 C & P 483]. If that were so, it would make an assault not dependent upon the intention of the assailant, but upon the question whether the party assaulted was a courageous or a timid person.

The requirement for a present ability does not mean that the threat must be of immediate violence. In R v Secretary (1996) 86 A Crim R 119, the accused had been subjected to long-​term abuse by her partner. On the night in question Secretary was verbally and physically abused by the victim. Before going to sleep, the victim threatened further violence when he awoke. Secretary shot the victim, killing him, while he was asleep, claiming that she believed that her life was in danger when he awoke. She argued that she was acting in self-​defence, which required a finding that the accused had been assaulted. Mildren J found that an assault could continue even while the person making the threat was asleep (at 128):

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So long as the threat remained, and nothing changed to remove it, the threat continued. The circumstances as to the ability of the deceased to have carried out his threat when he awoke also had not changed. I see no reason why the assault should have been regarded as spent merely because the deceased was temporarily physically unable to carry out his threat.

Furthermore, where the threat is one of future violence, the question is whether the person making the threat will have the ability to apply the force at the time he or she is threatening to do so (at 127 per Mildren J): [H]‌ere the threat was in relation to the future application of force. In effect, the inference open to be drawn from the words he uttered, having regard to the appalling history of his escalating violence upon the accused, was that when he awoke he intended to kill her or cause her grievous harm. The threat was, like all threats, of future violence, and unquestionably just as there was evidence that the accused had the apparent ability to carry out his threat at the time he made it, so was the evidence sufficient to support the conclusion that, at the time when the deceased awoke, he would then have had the apparent ability to carry out his threat.

Without consent [5.40] 

For either form of assault it must be proved that the victim was not consenting. Consent can be express, implied or tacit. There are several situations in which consent will be implied, such as everyday contact and sporting situations. However, whether consent will be implied depends on the circumstances and the type of contact. In Boughey v The Queen (1986) 161 CLR 10 at 24, it was said that consent may be implied to everyday contact –​for example, “commonplace, intentional but non-​hostile acts such as patting another on the shoulder to attract attention or pushing between others to alight from a crowded bus”. In relation to sport, it was held in Pallante v Stadiums Pty Ltd (No 1) (1976) VR 331 at 339 that a person is taken to consent to the infliction of “such violence as is ordinarily and reasonably to be contemplated as incidental to the sport in question”. But violence inflicted outside the rules and intendment of the sport will not be taken to be consented to. Further, consent that is obtained by fraud, fear, intimidation or deceit will not be found to be valid consent. Higgins v The State of Western Australia [2016] WASCA 142 held that in determining whether there was consent: “The statutory text, context and purpose lead to the conclusion that s 319(2)(a) applies when determining whether, for the purposes of s 323, there has been an ‘assault’ as defined in s 222 of the Code”. Mental element [5.50] 

The general rule under CCQ, s 23(2); CCWA, s 23(1) is that unless the intention to cause a specific result is expressly mentioned as an element

of the offence, then no intent needs to be proven. Neither CCQ, s  245 nor CCWA, s  222 mention any mental element in relation to an assault. However, in the case of Hall v Fonceca [1983] WAR 309 at 31 a mental element was implied into the definition of “assault” (see also Johnson v Ayling [2013] WASC 312 at [67] per Simmonds J and Murphy v Spencer (2013) 232 A Crim R 74; [2013] WASC 256 at 85-​86 per Crim R, [52] per Corboy J where it was stated that “I consider that the reasoning in Hall v Fonceca applies to those provisions of the Criminal Codes that make it an offence to commit an assault.”). According to this view, to be liable for assault, the accused must intend to apply the force or to make the victim think that the threat to apply force will be carried out. This interpretation of assault as requiring a mental element, despite none being mentioned in CCQ, s 245; CCWA, s 222, can be justified on various grounds. It may be argued that the words “threat” or “attempt” naturally imply that there must be an intention to do either of those things. In relation to assault by way of an actual application of force, there is nothing in the words used to imply that the application of force must be intentional. Therefore the most convincing overall justification for including a mental element for both forms of assault is that “assault” is a technical term which has been carried over from the common law and therefore common law can be used to interpret its meaning.1 This was reflected in Corboy J’s reasoning in Murphy v Spencer (2013) 232 A Crim R 74; [2013] WASC 256 where he stated at [53]: At common law, an assault is any act by which a person intentionally or recklessly causes another to apprehend immediate unlawful violence. The act must be accompanied by a hostile intent calculated to cause apprehension in the mind of the complainant: see Archbold: Criminal Pleading, Evidence and Practice 2012, at 19-​ 166. The element of intent distinguishes an assault from the unintentional contact between persons that is an everyday occurrence. In my view, the Code imports that element by the very use of the word “assault”. It would seem unlikely that it was intended that every application of force within the meaning of s 222 would constitute an offence under, for example, s 324 of the Code for which the person applying the force would be criminally responsible unless the provisions of s 23A and/​or s 23B applied. That is not a conclusion that is contrary to the requirement that the Code is to be construed as a statutory instrument. It merely reflects that the Code is to be interpreted in a particular context –​as was recognised by the Full Court in Cox v The Queen and in Hall v Fonceca.

A contrasting view of whether intention is required for an actual application of force can be found in the Western Australian Court of Appeal decision in Hayman v Cartwright [2018] WASCA 116. In this case, the respondent, who 1

See E Colvin and J McKechnie, Criminal Law in Queensland and Western Australia (5th ed, LexisNexis, Sydney, 2008) [5.12].

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was cycling with another person, was overtaken by a car. The driver of the car sounded the horn as the car passed the respondent. The respondent he struck his hand against the passenger side of the car and made contact with the complainant’s hand which was resting on the window. The magistrate followed the decision in Murphey v Spencer (2013) 232 A Crim R 74; [2013] WASC 256 and acquitted the respondent on the basis that the prosecution was required to prove intention on the part of the respondent, but had failed to do so. The appeal to the Court of Appeal of Western Australia concerned the proper construction of the CCWA, s 222. It was found that a proper construction of s 222 does not require an element of intention for an assault conducted by an application of force (in contrast to an assault by threat or attempt to apply force): … in our respectful opinion, on a proper construction of s 222 of the Code, read in the context of the Code as a whole, there is no requirement for the prosecution to prove intention for an assault said to have occurred by the actual application of force. Essentially, that is because the ordinary meaning of the language of s 222, construed in the context of pt 1 ch V and the Code as a whole, suggests there is no element of intention in such a case and there is no reason to depart from the ordinary meaning of the statutory provision.

The court found that the ordinary meaning of the word assault did not support the inclusion by implication of intent (at [47]): In the case of assault by actual application of force, it is not easy to find textual support for a requirement of intention. In their ordinary meaning, the concepts of striking, touching, moving or applying force do not necessarily carry any connotation of intention. For example, in ordinary parlance a person may be said to have struck, touched or moved someone, without having done so intentionally.

The court also dismissed the justification for importing a requirement of intention on the basis that assault was a technical term carried over from the common law and therefore open to interpretation by common law (at [59]-​[62], references omitted): In Murphy v Spencer, Corboy J said, in effect, that the Code imports the common law meaning of assault by its use of the word ‘assault’, that being a term with an established meaning at common law. The plurality in Hall v Fonceca appear to have adopted similar reasoning. As we have said, where a code uses an expression with an accepted legal meaning in the common law, and that expression is not defined in the code, reference may be made to the common law meaning of the expression. An example of this is the phrase ‘intent to defraud’ in s 409 of the Code. However, ‘assault’ is defined in s 222. In our respectful opinion, in construing ‘assault’, as defined in s 222, attention is to be directed to the language of that statutory definition, in the context of the Code as a whole, and not to the common law meaning of the term.

In other words, whether and if so to what extent intention is an element of an ‘assault’ under the Code is to be ascertained by reference to the statutory text of s 222, read in its context of the Code as a whole and inserted into the various provisions in which the term is used. In our respectful view, it is wrong to approach the construction of the statutory definition by assuming or asserting that the defined term is intended to reflect the common law meaning of ‘assault’. Whether the statutory definition reflects the common law meaning is determined after, and as a consequence of, ascertaining the meaning of that definition through the process of construction. Although the word ‘assault’ had an established meaning under the common law when the Code was originally enacted, the Code does not merely adopt the word ‘assault’. Rather, s 222 of the Code sets out a detailed definition of the term ‘assault’. It is true that Sir Samuel Griffith, in his draft Criminal Code sent to the Attorney-​ General of Queensland with the letter dated 29 October 1897, noted that the source of the proposed provision subsequently incorporated in s 222 of the Code was ‘common law’. However, it does not follow that, on its proper construction, the word ‘assault’, as defined in s 222, was intended to do no more than to restate the existing law, including the mental element at common law. Rather, as explained in more detail below, the mental element is supplied by ch V of pt 1 of the Code. Sir Samuel Griffith’s identification of the source of the provision is not a statement as to how the provision is to be construed. Moreover, in construing s 222, it is the text of the statutory provision, not any relevant secondary material, that is of paramount significance. The ordinary meaning of the text -​that intention is not an element -​ is reinforced by the statutory context in which the mental element is supplied by ch V of pt 1.

Finally, the court considered whether constructing the section according to its ordinary meaning would lead to absurd results that could not have been intended by Parliament, such as people being liable for assault for contact in extremely crowded places (at [69]): It seems to us that the application of s 23A(2), s 23B(2) and s 24 removes the spectre of everyday inadvertent contact, of a kind Parliament may be taken not to have intended to amount to an offence, constituting a criminal offence. One or more of them will apply in such cases of everyday inadvertent contact; which of them will apply depends on the facts and circumstances of a given case.

Accordingly, where an assault is committed by an actual application of force, there is no need to prove the accused intended to apply force (Hayman v Cartwright [2018] WASCA 116). However, where an assault is committed by a threat or an attempt to apply for there needs to be proof of intention (Hall v Fonceca [1983] WAR 309). Unlawfulness [5.60] 

To amount to an offence, the assault must be unlawful. According to CCQ, s  246(1); CCWA, s  223, an assault will be lawful where it is

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authorised, justified or excused. Typical examples of when an assault will be lawful are where the act was unwilled (CCQ, s 23(1); CCWA, s 23A) –​for example, where the accused was pushed into another or fell onto another due to a bus braking suddenly. Other examples include where the person applies force in self-​defence (CCQ, s 271; CCWA, s 248), or in response to a provocative incident: CCQ, s 269; CCWA, s 246. Note, however, that the presence of consent will not necessarily mean that the application of force was lawful (CCQ, s 246(2); CCWA, s 223 (second paragraph). Assault offences Common assault [5.70] 

Where the elements of CCQ, ss 245 and 246; CCWA, ss 222 and 223 are satisfied and in the case of a threatened or attempted application of force the accused intended to make the victim think that force would be applied (as required by Hall v Fonceca [1983] WAR 309), then he or she is liable for a charge of common assault: CCQ, s 335; CCWA, s 313. Assault occasioning bodily harm [5.80] 

Where an accused has committed a common assault that causes bodily harm to the victim, the accused can be charged with assault occasioning bodily harm: CCQ, s 339; CCWA, s 317. This requires proof of all the elements required for a common assault under CCQ, s  335; CCWA, s  313 and bodily harm. “Bodily harm” is defined in Codess 1 of both Codes as a bodily injury that interferes with health or comfort. In Lergesner v Carroll (1990) 49 A Crim R 51, it was held that “bodily harm” may include a black eye or a bloodied nose. In Scatchard v The Queen (1987) 27 A  Crim R 136, the appellant put the victim in a headlock, which hurt the victim’s neck. It was held that pain alone did not amount to a bodily injury. In Robinson v Smith [2005] WASC 99 (Robinson v Smith), it was explained that for this offence it must be established first that there was a bodily injury and second that this bodily injury interfered with health or comfort. Nonetheless, if pain lasts it may be a sign of bodily injury. For instance, numbness, pain and a lump in throat which lasted five months amounted to bodily injury in Robinson v Smith. Even pain that lasted “a few days” from kicks to the stomach has been found to be bodily injury (Brown v Blake [2000] WASCA 132 at [5]‌-​[6] per Hennan J): For present purposes, I take “bodily injury” to mean something in the nature of damage to bone, muscle, tendon, skin, organ or any part of which the human body is constructed. The word relates to more than merely a sensation of pain … The

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available evidence was meagre, but I am satisfied that as a matter of ordinary human experience one knows that, if pain has lasted, as Ms Ward said, for a couple of days then the body has suffered damage. In such a case the pain originates from the damage and is more than merely “a perception activated by a stimulus”.

In Robinson v Smith, it was also considered whether bodily injury can encompass psychological injury. It was found that at [26]:

This is in line with in the case of Chan-​Fook [1994] 2 All ER 552 where it was held that the term was broad enough to include psychiatric injury, provided it constituted an identifiable clinical condition rather than mere emotion, such as fear, distress or panic. In Western Australia, causing a person to have a disease which interferes with health or comfort does amount to bodily harm: CCWA, s 1(4)(a). An issue that has arisen in relation to assault occasioning bodily harm is whether an accused will be absolved from liability for an assault occasioning bodily harm if the person assaulted consents to the application of force which could inflict bodily harm. Clearly, a person can consent to a common assault, and there are no words in CCQ, s  339; CCWA, s 317 which suggest that a person is not able to consent to the infliction of bodily harm. There may, however, be policy reasons for holding a person liable for an assault occasioning bodily harm even if the victim has consented. This issue was discussed in R v Raabe (1984) 14 A Crim R 381, where the applicant had a fight with his father-​in-​law. During the fight the applicant hit the victim with a fence paling, causing bodily harm. The trial judge held that the law will not allow a person to consent to serious harm. On appeal, different views were taken as to whether this statement was correct. Connolly J found (at 384-​385) that a person cannot consent to bodily harm: In my judgment, s 245 [CCWA, s 222] is not to be read in isolation but in association with the rest of the Criminal Code and in particular with ss 246 [CCWA, s 223] and 339 [CCWA, s 317] and with regard to the state of the law when the Code was enacted. So guided, the conclusion to which I have come is that consent which may be given for the purposes of s 245 [CCWA, s 222] is to force which is not intended to and does not cause bodily harm as defined by the Code. This construction of s 245 [CCWA, s 222] would bring the law into line with the current law of England. It is the preferable view from a social point of view, as discouraging violence. The accepted legality of properly conducted games and sports can be justified, in the

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The way that “bodily harm” is defined in the Code I do not accept that the term encompasses psychological injury unless a complainant suffered a physical or bodily injury which in turn affected his or her psychological state. To that extent the Magistrate erred. However, she went on to find that that the complainant suffered both psychological and “other sorts of injury”. Whilst that is a vague description, it can only be a reference to a bodily or physical injury.

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absence of legislative provision because there is nothing to deny the effect of the consent of the participants.

Derrington J took the opposite view (at 389): Because under the Criminal Code the element of absence of consent relates to the application of violence to the person (the assault) rather than to the harm suffered, (the aggravating circumstance of causing bodily harm) and assault is an essential component of the charge in this indictment, no question arises, as it does in common law, as to whether a person is permitted by law to consent to bodily harm. If the charge is one of which assault is an element, then the absence of consent to the assault must be proved. A charge of causing grievous bodily harm, for example, does not include such an element, and so is of a totally different construction from that of assault occasioning bodily harm. This distinction may have been deliberate but in any case it certainly exemplifies the point. As the statutory requirement of absence of consent is clearly an element of the present charge, no common law intrusion, particularly of latter-​day origin, may qualify it.

Thomas  J, without deciding the issue, assumed that the proposition that “there is no rule of law which prevents a person from effectively consenting to an assault which will result in bodily harm” was correct. The issue was also addressed in Lergesner v Carroll (1990) 49 A Crim R 51, where it was found that the views of Derrington J on this issue were correct. Therefore where there is consent to such force as would constitute bodily harm, there can be no assault occasioning bodily harm. There is no need for proof that the accused intended to do bodily harm. Provided that the accused intended the common assault and this caused bodily harm, the accused will be liable for assault occasioning bodily harm unless the victim was consenting to that degree of harm or there is some authorisation, justification or excuse. Where a common assault cannot be proven but a person has done or omitted to do something that leads to bodily harm, the relevant offence is found in CCQ, s 328 (negligent acts causing harm); CCWA, s 304 (acts or omissions causing bodily harm). For this offence it must be established that the person had a duty (CCQ, ss 285-​290; CCWA, ss 262-​267), which they negligently failed to perform and which led to bodily harm. If the person fails to fulfil a duty with the intent to harm the more serious offence in CCWA, s 304(2) applies. Serious assault Queensland [5.90] 

In Queensland, serious assault under CCQ, s 340 covers assaults made more serious because the accused had a certain intention, or because

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of the class of person assaulted. In Western Australia, these two factors that make the assault more serious amount to separate offences (see below). For a serious assault in Queensland, there must be proof of all the elements required for a common assault under CCQ, s 335 and that: • the accused had an intention to commit a crime, or an intention to resist arrest or prevent the lawful arrest or detention of him-​or herself or any other person: CCQ, s 340(1)(a); or • the assault was committed on a police officer while the officer was in execution of her or his duty, or any person acting in aid of such an officer, or due to the accused resisting or wilfully obstructing such a police officer or person: CCQ, s 340(1)(b); or

• the assault was committed in pursuance of an unlawful conspiracy relating to manufacture, trade, business or occupation, or the assault was on a person concerned with manufacture, trade, business or occupation, or the wages of such a person: CCQ, s 340(1)(f); or • the assault was committed on a person over the age of 60 years: CCQ, s 340(1)(g); or • the assault was committed on a person who relies on a guide dog, wheelchair or any other remedial device: CCQ, s 340(1)(h). For the first form of serious assault under CCQ, s  340(1)(a), a specific intention must be established. Further, in regard to obstruction in CCQ, s  340(1)(b), this must be done wilfully. According to R v Lockwood; Ex parte Attorney-​General [1981] Qd R 209, “wilfully” means intentionally or recklessly –​that is, that the accused foresaw the result as likely. In R v Hind (1995) 80 A Crim R 105 at 113, “likely” was held to mean “a substantial –​a ‘real and not remote’ –​chance regardless of whether it is less or more than 50 per cent”. This means that the conduct making it more difficult for the police to perform their duties must be done either with the intention of making it more difficult for the police to do their job or with the belief that there is a real chance that it will make it more difficult for the police to do their job. In all the other cases under CCQ, s 340(1)(b)-​(h), there is no need for proof of any specific intention other than the intention required for the common assault. Therefore, in relation to s 340(1)(g), for example, there is no need to prove that the accused intended to assault a person aged 60 or over, or that they even knew that the victim was of that age. However, where a person has a positive belief that the person was not of that age, they

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• the assault was committed on a person exercising legal powers or fulfilling legal duties: CCQ, s 340(1)(c) and (d); or

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may be able to rely on the excuse of mistake of fact under CCQ, s 24: for further discussion, see Chapter 13, Honest Claim of Right to Property and Mistake of Fact. Serious assault Western Australia [5.100] 

In Western Australia, serious assault under CCWA, s 318 covers only assaults made more serious because of the class of person assaulted. For this offence there must be proof of all the elements required for a common assault under CCWA, s 313 and the assault must be on a certain class of person.This includes assaults on public officers (defined in CCWA, s 1) who are performing a function of their office or on account of their performance of such a function, as well as assaults on any person who is aiding a public officer.This offence also covers assaults on a range of people performing a public service, such as public transport drivers, ambulance officers, fire officers, health workers and court security officers:  see CCWA, s 318. For this offence there is no need for proof of any specific intention aside from that necessary for common assault under CCWA, s 313. An accused will therefore be liable for this offence if they intended an assault even if they did not intend to assault a person of a class included in CCWA, s 318, or did not know that the person was included in that category. However, an accused may be able to rely on the excuse of mistake of fact under CCWA, s 24 where they honestly and reasonably believed that the person was not a person of a class listed in CCWA, s 318. For further discussion of mistakes, see Chapter 13. Assault with intent Western Australia [5.110] 

In Western Australia, a person can be liable for assault with intent under CCWA, s 317A where they commit a common assault with a certain specific intention. This requires proof of all the elements required for a common assault under CCWA, s 313 as well as the intention to: (a) commit or facilitate a crime; (b) do grievous bodily harm; or (c) resist or prevent the lawful arrest or detention of any person. Note in particular that, in relation to s 317A(b), the intention goes beyond what the accused actually does  –​the accused intended to do grievous bodily harm but in fact only assaulted the victim. If the accused had actually

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achieved what he or she intended to do and had caused grievous bodily harm, then he or she would be liable for the offence of acts intended to cause grievous bodily harm in CCWA, s 294: see [5.190]. Other assault offences [5.120] 

Both the Criminal Codes of Queensland and Western Australia contain a range of other assault offences requiring proof of a common assault and some other form of behaviour. These include: • assaults on a member of the crew on an aircraft: CCQ, s 338A; • assault on an aircraft’s crew: CCWA, s 318A; and • assaults with intent to interfere with freedom of trade or work: CCQ, s 346. Diagram 5.1 illustrates the main assault offences.

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Diagram 5.1: illustrates the main assault offences.

Endangering life [5.130] 

All of the offences discussed above are assault-​based offences –​ that is, they all require proof of an unlawful assault.Thus, there must be proof of all the elements of CCQ, ss 245 and 246; CCWA, ss 222 and 223 and that the assault was intentional, as required by Hall v Fonceca [1983] WAR 309 as well as any other elements specific to the offence. The following offences focus on the endangering or the potential to endanger human life or health. These offences do not technically require proof of an assault, but the harm must be done unlawfully. There are basic offences, where the accused does or omits to do something that endangers life or health, and more serious offences where the accused not only endangers life or health but does so with a specific intention. Aside from the main offences

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concerning grievous bodily harm and wounding, which will be discussed below, there are a range of specific endangerment offences, including, for example: • disabling in order to commit an indictable offence:  CCQ, s  315; CCWA, s 292; • stupefying in order to commit an indictable offence:  CCQ, s  316; CCWA, s 293; • carrying or sending dangerous goods in a vehicle: CCQ, s 317A; • carrying dangerous goods on an aircraft: CCWA, s 294A; • obstructing rescue or escape from unsafe premises: CCQ, s 318; • preventing escape from a wreck: CCWA, s 295; • administering poison with intent: CCQ, s 322; CCWA, s 301(2); • performing female genital mutilation: CCQ, s 323A; CCWA, s 306; • setting mantraps: CCQ, s 327; • setting dangerous things for people: CCWA, s 305. Grievous bodily harm and wounding with no specific intention [5.140] 

Offences with no specific intention only require proof of the causing of the harm (either wounding or grievous bodily harm) and that this was unlawful, they do not require proof of any specific intention. Unlawfully doing grievous bodily harm [5.150] 

“Grievous bodily harm” was originally defined in the same terms in Codess  1 of both Codes as “any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, a permanent injury to health”.This definition has subsequently been amended in both Codes so that there are now some differences between them. In Queensland, “grievous bodily harm” is defined in CCQ, s 1 as: (a) the loss of a distinct part or an organ of the body; or (b) serious disfigurement; or (c) any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health; whether or not treatment is or could have been available.

This definition does not extend to a “serious disease” in Queensland and therefore a person cannot be liable under CCQ, s 320 for causing person

to have a “serious disease” but can be liable under CCQ, s 317 if a serious disease is transmitted with a certain intention (discussed at [5.190]). In Western Australia, CCWA, s 1 has retained the original definition of “grievous bodily harm” but has extended the meaning in s 1(4)(c) to include causing a person to have a serious disease. A “serious disease” is defined in CCWA, s 1 as a disease that endangers or is likely to endanger life, or causes or is likely to cause a permanent injury to health. “Likely” means that there must be “a real and not remote” chance of the result occurring: R v Hind & Harwood (1995) 80 A  Crim R 105 at 141-​142 (see also R v Crossman (2011) 209 A Crim R 558 at 570-​572 per Chesterman JA). Although not specified in CCWA, s 1, the case of R v Lobston makes it clear that the injury is determined as if untreated –​that is, without regard to the possible results of medical treatment. In Houghton v The Queen (2004) 144 A  Crim R 343; [2004] WASCA 20, the applicant engaged in unprotected sexual activity with a woman, knowing that he was HIV positive. The woman became infected the virus. Interestingly, the question was whether there had been bodily injury caused by the applicant to the complainant and whether that injury was of sufficient severity to constitute grievous bodily harm (rather than a case of serious disease constituting grievous bodily harm). This appears to be based on evidence from a Professor that the complainant, although HIV positive, did not require treatment at the time of trial, and may never require treatment. However, she was infected by the virus with the result that cells of her immune system were destroyed. On appeal, it was held that if the jury found that the woman’s immune cells were infected and destroyed, this could constitute “bodily injury” and in the circumstances it would be open to find that it was likely to cause permanent injury to health (notwithstanding that she currently did not require treatment); see also R v Reid [2007] 1 Qd R 64. In R v Tranby (1991) 52 A Crim R 228, the appellant bit off the victim’s earlobe and the issue arose as to whether this amounted to grievous bodily harm. It was held that the loss of a significant body part would amount to grievous bodily harm; however, an injury that only affects the body’s appearance and does not interfere with the functioning of the body is not grievous bodily harm. As a result of this case, the definition of “grievous bodily harm” was amended in Queensland to cover “serious disfigurement” and “the loss of a distinct part or organ of the body”. However, in Western Australia, where no such amendment has been made, it seems that such injuries will not be found to amount to grievous bodily harm. [5.160] 

Where a person “unlawfully” does grievous bodily harm to the victim, they can be charged under CCQ, s 320; CCWA, s 297. A person

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may cause the injury deliberately (for instance by applying force, such as punching the victim) or by failing to prevent the victim suffering grievous bodily harm. In the latter case, where a person fails to prevent the occurrence of grievous bodily harm, they will only be held to have caused the harm where they had a duty to prevent that harm. In such instances, it must first be established that the accused had a duty: CCQ, ss 285-​290; CCWA, ss 262-​267. In R v Clark (2007) 171 A Crim R 532; [2007] QCA 168, the appellant’s job was to secure people into a safety harness on a flying fox. The complainant’s harness was not secured and she fell from the flying fox platform, suffering grievous bodily harm. It was found that the accused had a duty because he was in charge of a dangerous thing (CCQ, s 289; CCWA, s 266) and he had failed to take reasonable steps to avert the harm. He was therefore found to have caused grievous bodily harm. Another case dealing with the duty of a person in charge of a dangerous thing is R v Betts [2011] QCA 244.The applicant was playing golf, and became frustrated at his poor performance. In his anger, he swung his golf club with great force and then released it in a fit of anger. It struck the complainant in the head, causing serious injury and leaving him disabled. The applicant pleaded guilty to having caused grievous bodily harm. This was on the basis that he failed to take care in his handling of the club, in accordance with CCQ, s 289 which sets out a duty to take care of a dangerous thing (in this case, the golf club). “Unlawfully” means that the act or omission causing the injury “is done by a willed act contrary to law and not excused”: Mouritz v Western Australia [2006] WASCA 165 at [55] per Pullin JA; see also Houghton v The Queen (2004) 28 WAR 399; [2004] WASCA 20; Kuczynski v The Queen (1989) 2 WAR 316 at 321. This means that it is necessary to find a statutory provision which would render doing grievous bodily harm unlawful –​for example, if the grievous bodily harm was the result of an unlawful assault, or the result of a failure to perform a duty set out in CCQ, ss  285-​290; CCWA, ss 262-​267 (see Mouritz v Western Australia [2006] WASCA 165 at [55] per Pullin JA).Then, any excuse or defence that has been raised must be disproven before the accused can be convicted. Where the grievous bodily harm is done through a deliberate act of violence, the excuse of lack of will may be raised if the accused was not in control of the act that caused the harm: CCQ, s 23; CCWA, s 23A –​for instance if the accused has a spasm in their arm which causes the arm to move and strike the victim. Similarly, where the harm resulting from the act was not foreseen by the accused, and was not foreseeable to the ordinary person, the excuse of accident may be raised: CCQ, s 23; CCWA, s 23B. However, where the injury would not have occurred but for an abnormality, weakness or defect in the victim,

this does not necessarily excuse the person from criminal responsibility for the injury:  CCQ, s  23(1A); CCWA, s  23B(3). It has been held that the “abnormality” need not be “constitutional” but may be the result of a medical intervention designed to address a constitutional defect, for instance, the condition of a person who had lens implants in the course of surgery to remedy cataracts: R v Steindl [2002] 2 Qd R 542; (2001) 124 A Crim R 520; [2001] QCA 434 at [28]-​[29] per McMurdo P, see [4.140] of this book for further discussion. Where the accused has not deliberately caused the injury but has failed to perform a duty and this failure has led to the harm, the excuses of lack of will and accident are excluded from application: CCQ, s 23(1); CCWA, ss 23A(1) and 23B(1). However, in the place of these excuses, it must be established that the accused negligently failed to perform a duty.This means that the behaviour of the accused “so far departed from the standard of care incumbent upon him to use reasonable care to avoid danger to life, health and safety as to amount to recklessness involving grave moral guilt deserving of punishment”: R v Clark (2007) 171 A Crim R 532; [2007] QCA 168 at [39]. In Western Australia, this offence is aggravated and a mandatory minimum penalty applies in a range of circumstances where the victim is of a specified class of person (such as a public officer, driver of public transport, ambulance officer, hospital worker etc). In Queensland a mandatory minimum penalty applies if the offence is committed on a police officer while performing her or his duties by an offender who is a participant in a criminal organisation. Wounding [5.170] 

“Wounding” is not defined in either the CCQ or CCWA. In Devine v The Queen (1983) 8 A  Crim R 45, the term was held to mean breaking both layers of skin (the dermis and the epidermis): see also R v Jervis [1993] 1 Qd R 643; R v Da Costa [2005] QCA 385 at [3]‌. Bruising is not sufficient, nor is a surface scratch. However the forcible injection of heroin would constitute wounding (R v Brown [2009] QCA 342). Where a person unlawfully wounds another they can be charged under CCQ, s 323; CCWA, s 301(1). Offences requiring a specific intention [5.180] 

For the following offences, the conduct element (that is, what physically occurs) is generally the same as for the offences considered above. However, these offences are considered to be more serious because at the time of causing the harm the accused had a specific intention.

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Grievous bodily harm or wounding with intent [5.190] 

A person can be charged under CCQ, s 317; CCWA, s 294 where they unlawfully do grievous bodily harm or wound the victim and they had a certain specific intention at the time they harmed the victim.2 Any of the following states of mind are sufficient to establish the offence: • an intention to maim, disfigure or disable any person; • an intention to do grievous bodily harm; • an intention to resist or prevent lawful arrest or detention; • an intention to resist or prevent a public officer from acting in accordance with lawful authority (Queensland only); or • an intention to transmit a serious disease (Queensland only). The term “maim” was defined in R v Woodward [1970] QWN 30 as doing something to stop a man fighting –​thus, “to deprive a man of his front teeth or his hand, or his arm, or his leg, but to deprive him of his nose, or ears, is not to maim him”. In R v Osborne [1987] 1 Qd R 96 (which considered CCQ, s 315), it was found that summoning of help by calling out is a form of resistance. In both Queensland and Western Australia a person can be charged with this offence where he or she causes another person to have a serious disease and they had a certain specific intention at the time that they transmit the disease:  CCQ, s  317; CCWA, s  294. In Western Australia, CCWA, s  294 does not specifically mention a serious disease because according to CCWA, s  1(4)(c), the term “grievous bodily harm” includes a serious disease. In Queensland, CCQ, s 317 does make specific reference to a serious disease because the term “grievous bodily harm” does not encompass a serious disease. In Queensland a serious disease is defined as a disease which if untreated would cause the same results as those in the definition of grievous bodily harm (CCQ, s 1). The harm caused and the intention of the accused may coincide; however, this is not necessary for a charge under CCQ, s  317; CCWA, s  294. For example, the accused may cause grievous bodily harm with an intention to cause grievous bodily harm but, equally, he or she can be liable for this

2

Aside from causing grievous bodily harm or wounding these offences also cover causing or attempting to cause other types of unlawful harm to the victim, such as: unlawfully attempting to strike a person with a projectile; causing an explosive substance to explode; sending explosive, dangerous or noxious substances to a person; causing such a substance to be taken by the person; putting corrosive, destructive or explosive substances in a place; applying such a substance to a person and doing any act likely to cause a person to have a serious disease.

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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. 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. 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. 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. 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

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offence with any combination of harm and intention, such as causing grievous bodily harm with an intention to resist arrest. In Zaburoni v The Queen [2016] HCA 12, the appellant who was HIV positive, engaged in repeated unprotected sex with the complainant over the course of their relationship of several months without disclosing his HIV status.The appellant appealed against a conviction for unlawfully transmitting a serious disease to another with intent to do so under s 317(b). The issue before the High Court was whether intention could be inferred from evidence showing the appellant was aware of the risk of transmission and from evidence about the frequency of engaging in the conduct (unprotected sex) which gave rise to the specific risk. The High Court considered the meaning of intent (Kiefel, Bell and Keane JJ at [14]-​[19]):

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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. 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.

In relation to the inference of intent from an awareness of the risk of transmission Kiefel, Bell and Keane JJ noted that:  “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” (at [41]).The argument that “[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” was rejected on the basis that foresight of the likelihood of an outcome cannot be substituted for proof of intention to cause an outcome (Kiefel, Bell and Keane JJ at [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 High Court allowed the appeal and substituted a verdict of guilty of unlawfully doing grievous bodily harm under s 320 (on the basis that the jury must have been convinced of facts establishing guilt for this alternative offence). Torture Queensland [5.200] 

In Queensland, where a person inflicts severe pain or suffering (physical, mental, psychological or emotional, whether permanent or

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temporary) on a person and they intended to do so, they can be charged with torture: CCQ, s 320A. Therefore, as stated in R v Ping (2006) 2 Qd R 69; [2005] QCA 472 at [27] per Chesterman J (Williams JA and Jerrard JA agreeing): To make out a case of torture the prosecution must prove, beyond reasonable doubt of course, that an accused intended his acts to inflict severe pain and suffering on his victim. It is not enough that such suffering is the consequence of the acts, and that the acts were deliberate.The prosecution must prove an actual, subjective, intention on the part of the accused to bring about the suffering by his conduct. The acts in question must have as their object the infliction of severe suffering; that must be their intended consequence.

Threats and stalking Threats As noted above (at [5.30]), words alone cannot amount to an assault but they can constitute the offence of making a threat. In Queensland, there is a general threat offence (CCQ, s 359), and a specific threat offence where a threat to murder is contained in a document:  CCQ, s  308. In Western Australia, there are two threat offences, depending on whether a person makes the threat with a specific intention (CCWA, s  338A) or without any specific intention: CCWA, s 338B. Queensland [5.220] 

To be liable for a threat under CCQ, s 359, the accused must threaten to injure or cause detriment of any kind to another person, or to property. In R v Zaphir [1978] Qd R 151 (Zaphir), it was held that the word “threat” should be given its ordinary meaning. A threat is “some sort of indication of intention to cause harm or damage or to punish” (at 163). Likewise, the word “detriment” should be given its ordinary meaning as “loss, or disadvantage, or damage as opposed to benefit” (at 163). Furthermore, the detriment need not in itself involve a criminal or unlawful connotation. Therefore, as in Zaphir, threatening to cut off a person’s fuel supply unless they comply with certain directions could amount to a threat to cause a detriment. It must also be shown that in making the threat the accused: • intended to prevent a person doing something they are lawfully entitled to do; or • intended to compel a person to do something they are lawfully entitled to abstain from doing; or • intended to cause public alarm or anxiety.

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[5.210] 

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Where a person directly or indirectly causes the victim to receive a document threatening to kill, they can be liable for “threats to murder in a document”:  CCQ, s  308. For this offence the accused must know the contents of the document; however, it is not necessary to prove that the accused intended to make the victim think the threat would be carried out. For further discussion of the meaning of “detriment”, see R v Tracey [1999] WASCA 77; (1999) 106 A Crim R 475 at [5.230]. Western Australia [5.230] 

In Western Australia, there is an offence of threat in CCWA, s 338B and threat with intent to influence in CCWA, s 338A. Section 338 of CCWA defines a “threat” as: a statement or behaviour that expressly constitutes, or may reasonably be regarded as constituting, a threat to –​ (a) kill, injure, endanger or harm any person, whether a particular person or not; (b) destroy, damage, endanger or harm any property, whether particular property or not; (c) take or exercise control of a building, structure or conveyance by force or violence; or (d) cause a detriment of any kind to any person, whether a particular person or not.

Making a threat to do any of the things listed in CCWA, s 338 is an offence under CCWA, s 338B. There is an increased penalty where the threat is to kill a person, and where the threat is committed in circumstances of racial aggravation (CCWA, ss 338B(a) and (b)). R v Tracey [1999] WASCA 77; (1999) 106 A  Crim R 475 considered the meaning of detriment. The appellant, a union representative, allegedly threatened business owners who had made an application for the cancellation or suspension of their apprentice’s apprenticeship. It was alleged that the appellant stated that if the business owners did not withdraw the application, he would organise a union picket on all the construction sites at which their business was working. It was stated by White JJ at [103] that: The word “detriment” is used in the following sections of the Criminal Code of this State, namely, s 58, s 83, s 98, s 123, s 128, s 332, s 338, s 338A, s 396, s 397 and s 409. In each case, the word is used consistently with it involving a violation of another’s legal right. I would respectfully adopt the view expressed by Wanstall CJ in the passage from his judgment in R v Zaphir … and hold that s 338A brings within its scope the uttering of a threat to cause a detriment to another by inducing a violation of his legal right, contractual or otherwise. In my view, that means that a statement of an intention to do something that one is lawfully entitled to do would not be caught by s 338A(a) or (b).

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Further Wallwork J stated at [91]-​[92] that:

The offence does not require an accused to intend that the threat actually be carried out. Rather, the mental element of the offence involves an intent or purpose to intimidate or overcome the will of the person to whom the threatening behaviour is directed:  Tracey v The Queen [1999] WASCA 77; (1999) 20 WAR 555 at 559 per Kennedy  J, with whom White  J agreed; Penny v The Queen [2002] WASCA 235; (2002) 26 WAR 475 at [8]‌per Murray J. As noted in R v Starr [1999] WASCA 119 at [14] per Malcolm CJ (Ipp & White JJ agreeing): In relation to the offence under s 338B of the Criminal Code, it is the making of the threat which constitutes the gravamen of the offence. The offence itself does not require any intention to actually carry out the threat, but if such an intention is established, that is an aggravating factor which is of relevance to the sentence to be imposed.

In relation to threats to kill, a jury must look at the circumstances in which the words were spoken. A  threat to kill is more serious if it is made in circumstances where the offender has the ability to carry out the threat; for example, when the offender is armed with a knife or other weapon while making the threat –​see KIP v Western Australia [2013] WASCA 71 at [33] per Buss JA. However, it is not necessary to consider the subjective effect of the words spoken upon the recipient –​see Jeffery v State of Western Australia [2009] WASCA 133 at [30]-​[31] per Miller JA: The essence of the offence of threatening to kill is that (1) there must be a threat, and (2) the threat when viewed objectively (which means an examination of the words used and the circumstances in which they were spoken) must declare an intention to kill. To introduce into the test a need for the recipient to give evidence that he or she was in fear of being killed, would be to introduce a subjective element into the offence. It would involve the subjective belief of the recipient of the threat. There is nothing to support this contention.

Threats with intent to influence: If the threat is made with a certain intention (such as the intention to gain a benefit, cause a detriment, prevent a person doing something they are lawfully entitled to do or to force a person to do

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The purpose and object of the Criminal Code is the establishment of a code of criminal law. A  construction which would impose criminal penalties upon the doing of an act which the person concerned is otherwise lawfully entitled to do, would seem not to promote that purpose or object … in my opinion, s 338 should be interpreted in a similar way to the section discussed by the judges in the Thorne decision. The threat must be a criminal threat, being one “without reasonable cause”. That would be consistent with s 397 of the Western Australian Criminal Code which makes it an offence for a person with intent to extort or gain, to demand anything in writing from a person “without reasonable cause”.

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something they are lawfully entitled not to do), then the accused can be liable for the more serious offence under CCWA, s 338A. Stalking [5.240] 

The offence of stalking is a recognition of the fact that certain forms of behaviour that appear normal at face value can, when done repeatedly, cause harm to the victim and can also be a precursor to further harms. Queensland [5.250] 

To be liable for stalking under CCQ, s 359E, the accused must engage in a certain form of behaviour that is intentionally directed at the victim (CCQ, s  359B(a)), on more than one occasion, or on only one occasion if the conduct is protracted: CCQ, s 359B(b). The type of conduct that will amount to stalking is listed in CCQ, s 359B(c)(i)-​(vii). It includes: • following, loitering near, watching or approaching a person; • contacting a person in any way; • leaving or giving offensive material to a person; • intimidating, threatening or harassing acts towards a person; and • applying or threatening violence to property. To amount to stalking, the conduct must also be such that it would cause the person stalked apprehension or fear of violence, reasonably arising in the circumstances: CCQ, s 359B(d)(i). Or, the conduct must cause a detriment, reasonably arising in the circumstances: CCQ, s 359B(d)(ii). Detriment is defined in s 359A as including: • apprehension or fear of violence to, or against property; • serious mental, psychological or emotional harm; • prevention or hindrance from doing an act a person is lawfully entitled to do (for example, “a person no longer walks outside the person’s place of residence or employment” or “a person significantly changes the route or form of transport the person would ordinarily use”); • compulsion to do an act a person is lawfully entitled to abstain from doing (for example, “a person sells a property the person would not otherwise sell”). Section 359C deals with matters that are immaterial to whether a person is liable for stalking. For example, when determining whether the conduct must be such that it would cause the person stalked apprehension or fear, reasonably arising in the circumstances (CCQ, s 359B(d)(i)), it is immaterial

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that the person stalked was actually caused apprehension or fear (CCQ, s 559C(5)). Section 359D of CCQ determines matters that will not amount to stalking, such as acts that were done for purposes of a genuine industrial, political or public dispute, or reasonable conduct engaged in as part of a person’s trade. A case which illustrates the sort of behaviour that can amount to stalking is R v Morris [2010] QCA 315, where the accused pleaded guilty to unlawful stalking contrary to CCQ, s 359B. The facts were that over a two and a half month period, the applicant posted defamatory notices. These posters were a reproduction of a “Crime Stoppers” flyer seeking information relating to the disappearance of Daniel Morcombe, to which the applicant added the words “You will be brought to justice” followed by the complainant’s name. The posters therefore implied an involvement in Daniel Morcombe’s disappearance.They were put up at locations frequented by the complainant and his family.

[5.260] 

In Western Australia, there are two stalking offences. Both require that the accused pursues another, which, according to CCWA, s  338D, includes: • repeatedly communicating with the person; • repeatedly following the person; • repeatedly causing the person to receive unsolicited items; • watching or besetting the place where the person lives or works or happens to be, or the approaches to such a place; or • doing any of the above in breach of a restraining order or bail condition (in this case the behaviour does not need to be done repeatedly). If the accused pursues another with an intention to intimidate them or someone else, they can be charged with the more serious offence of stalking under CCWA, s  338E(1). The term “intimidate” is defined in CCWA, s  338D to mean causing physical or mental harm to a person, causing apprehension or fear in a person or causing the person to do or not do something that they are legally entitled to do or abstain from doing. Where the accused has pursued a person but did not intend to intimidate them, they can be charged under CCWA, s 338E(2) provided that the behaviour did intimidate the victim and it could reasonably have been expected to intimidate. Section  338D(2) details what conduct will not be deemed to amount to stalking, such as where the accused proves that he or she did not intend to communicate with or follow the person.

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Western Australia

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Elements toolbox Common assault [5.270] 

Common assault requires proof that an accused:

1.

Unlawfully

2.

Directly or indirectly applied force

3.

Without the consent of the victim

OR 1.

Unlawfully

2.

Through a bodily act or gesture (words alone are insufficient)

3.

Threatened or attempted to apply force

4.

Without the consent of the victim

5.

With an actual or apparent present ability to apply force

6.

With an intention to make the victim apprehend the application of force.

Assault occasioning bodily harm

Assault occasioning bodily harm requires proof that an accused: 1.

Committed common assault (detailed above); and

2.

Caused bodily harm.

Serious assault

Serious assault in Queensland requires proof that an accused: 1.

Committed common assault (detailed above); and

2. (a)

had an intention to commit a crime, or an intention to resist arrest or prevent the lawful arrest or detention of her-​or himself or any other person; OR

(b)

the assault was committed on a person of a certain category (for example, a police officer, person exercising legal powers or fulfilling legal duties, a person aged 60 or over, or a person relying on a guide dog, wheelchair or any other remedial device). Serious assault in Western Australia requires proof that an accused: 1.

Committed common assault (detailed above); and

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2.

The victim belonged to a certain category of person (for example, a public officer, public transport worker, ambulance officer, member of the fire brigade, court security officer, or hospital worker).

Assault with intent

Assault with intent in Western Australia requires proof that an accused: 1.

Committed common assault (detailed above); and

2.

Intended to: (a)

commit or facilitate a crime;

(b)

do grievous bodily harm; or

(c)

resist or prevent the lawful arrest or detention of any person.

Unlawfully doing grievous bodily harm

1.

Caused grievous bodily harm (either deliberately or by failing to prevent grievously bodily harm if the accused had a duty to prevent such harm); and

2.

Did so unlawfully.

Unlawful wounding

Unlawful wounding requires proof that an accused: 1.

Wounded;  and

2.

Did so unlawfully.

Acts intended to cause grievous bodily harm

Acts intended to cause grievous bodily harm requires proof that an accused: 1.

Wounded or caused grievous bodily harm (or transmitted a serious disease Qld); and

2.

Had a certain intention (such as to maim, disfigure, disable, do grievous bodily harm, or prevent lawful arrest or detention (or to resist or prevent a public officer from acting in accordance with lawful authority or to transmit a serious disease (Qld))).

Threats

Threats in Queensland require proof that the accused: 1.

Made a threat to injure or cause detriment of any kind to another person or to property; and

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Unlawfully doing grievous bodily harm requires proof that an accused:

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2.

Intended to (a)

prevent a person doing something they are lawfully entitled to do; or

(b)

compel a person to do something they are lawfully entitled to abstain from doing; or

(c)

cause public alarm or anxiety.

Threats in Western Australia require proof that the accused: 1.

Made a statement or behaviour that expressly constituted, or could reasonably be regarded to constitute, a threat to: (a)

kill, injure, endanger or harm any person, whether a particular person or not;

(b)

destroy, damage, endanger or harm any property, whether particular property or not;

(c)

take or exercise control of a building, structure or conveyance by force or violence; or

(d)

cause a detriment of any kind to any person, whether a particular person or not. Threats with intent to influence in Western Australia require proof that the accused: 1.

Made a threat (as established above); and

2.

Did so with a specific intention (for example, to gain a benefit, cause a detriment, prevent a person doing something they are lawfully entitled to do or to force a person to do something they are lawfully entitled not to do).

Stalking

Stalking in Queensland requires proof that the accused: 1.

Engaged in a certain form of behaviour (including, for example, following, watching, approaching, contacting, intimidating, harassing or threatening a person); and

2.

Did so on more than one occasion or on only one occasion if the conduct was protracted; and

3.

Intentionally directed her or his actions at the victim; and

4.

Acted in a way that would cause the person stalked apprehension or fear, reasonably arising in the circumstance, or cause a detriment, reasonably arising in the circumstances.

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Stalking in Western Australia requires proof that the accused: 1.

Pursued the victim (repeatedly communicated, followed, watched, etc); and

2. (a)

did this with an intention to intimidate (cause fear, physical or mental harm to a person, etc); or

(b)

did not intend to intimidate but did intimidate the victim and her or his behaviour could reasonably be expected to intimidate.

Guide to problem solving [5.280] 



– Did the accused unlawfully assault the victim? • Check meaning of “assault” in CCQ, ss 245 and 246; CCWA, ss 222 and 223; see also Hall v Fonceca [1983] WAR 309; Hayman v Cartwright [2018] WASCA 116. • Apply and determine whether the victim has been assaulted.

– Did the accused apply force directly or indirectly?



– Was there express consent or, if not, was there any reason to imply consent?



– Was there any authorisation, justification or excuse?

OR

– Was there a bodily act or gesture?



– Did this indicate a threat or an attempt to apply force?



– Was there express consent or, if not, was there any reason to imply consent?



– Was there an actual or apparent present ability to apply force?

– Did the accused intend to make the victim apprehend the application of force?

– Was there any authorisation, justification or excuse?

– Conclude whether the accused can be liable for a common assault. • Can the accused be liable for assault occasioning bodily harm, serious assault or assault with intent?

– Did the accused commit a common assault?



– Did the accused cause a particular harm? • Check meaning of “bodily harm” in Codess 1.

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• Can the accused be liable for a common assault under CCQ, s 335; CCWA, s 313?

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• Apply and determine whether bodily harm has been caused –​see cases such as Lergesner v Carroll (1990) 49 A Crim R 51; Scatchard v The Queen (1987) 27 A Crim R 136 and Robinson v Smith [2005] WASC 99. – Conclude whether the accused can be liable for an assault occasioning bodily harm.

– Was the assault on a particular class of person? • Check the category of person to which this offence applies in CCQ, s 340(b)-​(h); CCWA, ss 1 and 318. • Apply and determine whether the assault was on a person in the categories identified.

– Conclude whether the accused can be liable for a serious assault.

– Did the accused have a certain intention when they assaulted the victim? • Check the relevant forms of intention in CCQ, s 340(1)(a); CCWA, s 317A. • Apply and determine whether the accused’s intention fits the forms identified.

– Conclude whether the accused can be liable for a serious assault (Qld) or an assault with intent (WA). • Can the accused be liable for a grievous bodily harm or a wounding offence? – Check the requirements for the endangering life offences in CCQ, ss 317, 320, 320A and 323; CCWA, ss 294, 297 and 301(1). • Check the meanings of “grievous bodily harm” in CCQ; CCWA, s 1 and “wounding” in Devine v The Queen (1982) 8 A Crim R 45. • Apply and determine whether the accused wounded or did grievous bodily harm (note that an accused can do so by failing to perform a duty). • Was there any authorisation, justification or excuse for the wounding or grievous bodily harm? • Did the accused have a specific intention when he or she wounded or caused grievous bodily harm?

– Check the types of intention required under CCQ, s 317; CCWA, s 294.



– Check the meaning of intention: Zaburoni v The Queen [2016] HCA 12.



– Apply and determine whether the accused had one of the requisite intentions.

– Conclude whether the accused can be liable for unlawfully doing grievous bodily harm or wounding, or doing grievous bodily harm or wounding with intent.

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• Can the accused be liable for threats?

– Check what is required for the offence of threats under CCQ, ss 308 and 359; CCWA, ss 338, 338A and 338B. • Apply and determine whether a relevant threat has been made. • Check whether any specific intention is required.

– Conclude whether the accused can be liable for a threat offence. • Can the accused be liable for a stalking offence? – Check what is required for the offence of stalking in CCQ, ss 359B and 359E; CCWA, ss 338D and 338E. • Apply and determine whether the behaviour of the accused amounts to stalking. • Check whether any specific intention is required and apply the relevant section based on the intention. – Conclude whether the accused can be liable for stalking.

Revision questions 1.

Can words alone amount to an assault?

2.

Can the application of intangible things amount to an assault?

3.

Can a person be liable for an assault if they shake their fist at the victim and say: “If I were not your lecturer I would punch you”?

4.

Can a person be liable for an assault if they point an unloaded gun at the victim and say: “I will shoot you”?

5.

What is the meaning of “bodily harm”?

6.

Will a person be liable for assault occasioning bodily harm where the victim consents to the application of bodily harm?

7.

For the offence of doing grievous bodily harm under CCQ, s 320; CCWA, s 297, must it be shown that the offender intended to cause grievous bodily harm?

8.

Can a person be liable for causing grievous bodily harm even when they do not commit a positive act?

Problem question Courtney walks into the garden and sees her husband, David, kiss her best friend, Jennifer. Courtney strides up to Jennifer and slaps her on the face, saying: “That will teach you to keep your hands off David.” Her hand catches Jennifer on the side of the nose and causes

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a nosebleed. Courtney then punches David in the face, which causes him to slump to the ground. He is taken to the hospital where it is found that he will be permanently paralysed down his left side. It is also found that the punch alone was unlikely to have caused paralysis but that David has an inherent weakness in his brain, which neither he nor Courtney knew about, but which made him more susceptible to paralysis. Courtney claims that she only wanted to give David a black eye as a sign that he had been unfaithful, but really didn’t want to cause him any permanent harm. Discuss the criminal liability of Courtney.

Answers to revision questions 1.

An assault requires that there is a bodily act or gesture. Therefore, words alone cannot amount to an assault.

2.

The application of things like light, gas, odour or electricity can amount to an assault provided they cause the victim injury or discomfort.

3.

Words may indicate that a person will not carry out the threat. If a person says something that makes it clear that they are not going to carry out the threat, then there will be no assault. See, for example, Turberville v Savage (1669) 86 ER 684.

4.

Even if the person does not have the actual present ability to carry out the threat, a person can still be liable for an assault provided they have the apparent ability. If a person points an unloaded gun, they are indicating an apparent ability to carry out the threat. See Brady v Schatzel [1911] St R Qd 206 and R v Dale [1969] QWN 30.

5.

“Bodily harm” is defined in s 1 of both Codes as any bodily injury that interferes with health or comfort.

6.

There are no words in CCQ, s 339 or CCWA, s 317 to indicate that a person cannot consent to bodily harm. This suggests that a person can consent to the infliction of bodily harm and, if this is so, then the accused cannot be liable for such an assault. This approach was confirmed in Lergesner v Carroll (1990) 49 A Crim R 51.

7.

The offence of grievous bodily harm in CCQ, s 320; CCWA, s 297 only requires proof that the accused did grievous bodily harm and that this was unlawful –​that is, that there is no authorisation, justification or excuse. It is not necessary to prove any specific intention. If a specific intention exists, the accused may be liable for the more serious offence of acts intended to do grievous bodily harm under CCQ, s 317; CCWA, s 294.

8.

A person can be liable for causing grievous bodily harm when they do not commit a positive act where they had a duty to

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prevent harm and they negligently failed to perform that duty. See R v Clark (2007) 171 A Crim R 532; [2007] QCA 168.

Answer to problem question Courtney could be liable for an assault under CCQ, s 335; CCWA, s 313 and assault occasioning bodily harm under CCQ, s 339(1); CCWA, s 317.

Courtney applies force to Jennifer by slapping her face and there is no reason here to assume that Jennifer consented to this application of force. Courtney clearly intended to apply force because she deliberately hit Jennifer and, in her words, she was doing so to teach Jennifer a lesson. There is no authorisation, justification or excuse for this application of force and therefore Courtney is liable for a common assault under CCQ, s 335; CCWA, s 313. When Courtney assaulted Jennifer she caused a nosebleed, which could make this an assault occasioning bodily harm under CCQ, s 339; CCWA, s 317. “Bodily harm” is defined in s 1 as any bodily injury which interferes with health or comfort. Lergesner v Carroll (1990) 49 A Crim R 51 also states that bodily harm can encompass a black eye or bloodied nose. Clearly, Courtney’s assault caused a nosebleed and she is liable for assault occasioning bodily harm. Courtney could be liable for unlawfully doing grievous bodily harm to David, contrary to CCQ, s 320; CCWA, s 297. This requires proof that Courtney unlawfully did grievous bodily harm. “Grievous bodily harm” is defined in CCQ; CCWA, s 1 as a bodily injury that causes a permanent injury to health. Paralysis down one side of the body is clearly a permanent injury to health and this was caused by Courtney’s punch. The grievous bodily harm must also be done without any authorisation, justification or excuse. Courtney cannot argue that the paralysis was an accident under CCQ, s 23(1); CCWA, s 23B. It seems that Courtney did not intend to do grievous bodily harm, and it could not have been foreseen that paralysis would have occurred as a result of the punch because no one knew that David had a weakness which contributed to the result. However, CCQ, s 23(1A); CCWA, s 23B(3) make clear that a person is not excused from criminal responsibility for grievous bodily harm by the fact that it would not have occurred but for a weakness in the victim. Courtney is therefore liable for unlawfully doing grievous bodily harm.

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“Assault” is defined in CCQ, ss 245 and 246; CCWA, ss 222 and 223. It requires that there is an application of force to another without that person’s consent. The assault must be unlawful according to CCQ, s 246; CCWA, s 223.

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Critical thinking questions 1.

Should a person be able to consent to any degree of harm?

2.

Should the offence of serious assault only apply to assaults on police officers, or should it broadly cover a range of people performing public duties?

3.

Should there be an aggravated form of assault where a public officer wrongly assaults a member of the public?

4.

Why was the offence of stalking so difficult to draft?

Readings • K Burton, LexisNexis Questions and Answers: Criminal Law in Queensland and Western Australia (2nd ed, LexisNexis, Sydney, 2015) Ch 2. • T Crofts, Criminal Law in Queensland and Western Australia (LexisNexis, Sydney, 2014) Ch 3. • T Crofts and K Burton, Criminal Codes: Commentary and Materials (6th ed, Thomson Reuters/​Lawbook Co., Sydney, 2009) Ch 4.

CHAPTER 6 Sexual Offences Learning outcomes .........................................................................   189 [6.10] Principles...............................................................................   190 [6.20] R  ape (Queensland) and sexual penetration without consent (Western Australia).......................................................................  190 [6.160] Aggravated sexual penetration without consent (Western Australia).......  204 [6.170] Sexual coercion and aggravated sexual coercion (Western Australia)......  205 [6.180] Sexual assault (Queensland) and indecent assault (Western Australia)....  205 [6.240] Offences against minors..............................................................  211 [6.270] Offences against persons incapable of giving consent.........................  214 [6.290] Elements toolbox................................................................   217 [6.300] Guide to problem solving....................................................   219 Revision questions .........................................................................   221 Problem question ...........................................................................   222

Answer to problem question .........................................................   224 Critical thinking questions .............................................................   226 Readings .........................................................................................   226

Learning outcomes This chapter will enable you to: • Identify and describe the elements of the offence of rape in Queensland • Identify and describe the elements of the offence of sexual penetration without consent and aggravated sexual penetration without consent in Western Australia • Appreciate the complexities surrounding the issue of consent • Identify and describe the elements of sexual assault in Queensland • Identify and describe the elements of indecent assault and aggravated indecent assault in Western Australia • Identify and describe the elements of sexual coercion and aggravated sexual coercion in Western Australia

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Answers to revision questions .......................................................   223

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• Identify and explain the elements of sexual offences against children • Identify and explain the elements of sexual offences against persons with a mental impairment • Apply the elements of offences to factual scenarios and determine whether a person could be liable for a sexual offence

PRINCIPLES [6.10] 

Offences involving sexual violence are broadly divided between those offences for which lack of consent is the central element and those offences for which consent is not an element because, due to lack of age or mental impairment, the victim is deemed to be incapable of giving valid consent. Traditionally both Criminal Codes of Queensland (CCQ) and Criminal Codes of Western Australia (CCWA) divided the sexual offences into rape, which was defined as penile penetration of a vagina, and indecent assault, which covered all other acts of sexual violence (including non-​ vaginal penetration, penetration with anything other than a penis and non-​ penetrative sexual behaviour). Both jurisdictions have, however, reformed the law relating to sexual violence and they no longer take a uniform approach. Queensland has retained the common law structure and the offence of rape but has gradually extended the forms of penetration that are encompassed by this offence. Other forms of sexual behaviour fall under the offence of sexual assault. In contrast, Western Australia has replaced rape with a new offence of sexual penetration without consent which covers a broader range of penetrative conduct. It has also introduced, alongside the offence of indecent assault, an offence called sexual coercion whereby a person is coerced to engage in sexual behaviour. Both jurisdictions have a range of offences relating to sexual behaviour with minors and with people with a mental impairment. The age of consent for sexual behaviour is generally 16 in Queensland and Western Australia. However, in Western Australia the age of consent is 18 for any sexual behaviour where the victim is under the care, supervision or authority of the offender.

Rape (Queensland) and sexual penetration without consent (Western Australia) [6.20] 

The definition of the forms of penetration which amount to rape in Queensland is different to those that amount to the offence of sexual penetration without consent in Western Australia:  CCQ, s  349; CCWA,

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s  325. However, both offences have in common the fact that the sexual penetration takes place without consent. In both jurisdictions there is no need to prove any specific intention on the part of the accused. Therefore, if the accused does sexually penetrate the victim and the victim is not consenting, the accused will be liable for rape or sexual penetration without consent unless he or she can raise some excuse or defence. The most common excuse that is raised in relation to these offences is mistake of fact under CCQ; CCWA, s 24 where the accused claims that he or she honestly and reasonably believed that the victim was consenting. Rape (Queensland) [6.30] 

In Queensland, there are three forms of penetration that amount to the offence of rape in CCQ, s 349 if done without the consent of the victim. These  are: • carnal knowledge:  CCQ, s  349(2)(a). This includes penile penetration of the vagina and also penile penetration of the anus (sodomy): CCQ, s 6(2); or • penetration of the vulva, vagina or anus by an object or body part other than a penis: CCQ, s 349(2)(b); or For all these forms of penetration the offence of rape is complete as soon as there is penetration to any degree (CCQ, ss 6, 349(2)(b) and (c)), unless the penetration is for a proper medical, hygienic or law enforcement purpose: CCQ, s 347. Note also that the terms “penis”, “vagina” and “vulva” also include a surgically constructed penis, vagina or vulva, whether for a male or female: CCQ, s 1. Any person who attempts to rape can be charged with attempted rape under CCQ, s 350 or assault with intent to commit rape in CCQ, s 351. Sexual penetration (Western Australia) [6.40] 

In Western Australia, rape has been replaced with the offence of sexual penetration without consent:  CCWA, s  325. A  gender-​neutral definition of the forms of penetration which will amount to this offence has been included. “Sexual penetration” is defined in CCWA, s 319(1) and includes: • penetration of the vagina, anus or urethra of the victim by any body part of the offender or any object, unless done for proper medical purposes;

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• penile penetration of the victim’s mouth: CCQ, s 349(2)(c).

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• penetration of the offender’s vagina, anus or urethra through the offender manipulating the victim’s body; • penile penetration of the victim’s mouth; and • oral contact with the victim’s vagina (cunnilingus) or penis (fellatio). Without consent (Queensland and Western Australia) [6.50] 

For the offence of rape (Qld) and sexual penetration without consent (WA), the prosecution must establish that the victim did not give express or implied consent to the sexual penetration or that any apparent consent was not valid. Both Codes establish that to be valid consent must be freely and voluntarily given: CCQ, s 348; CCWA, s 319(2). In Queensland, CCQ, s 348 makes it clear that consent will not be taken to be valid where it is obtained: • by force, threat, intimidation; or • by fear of bodily harm; or • by exercise of authority; or • by false representations about the nature or purpose of the act; or • by inducing a mistaken belief that the accused is the victim’s sexual partner. In Western Australia, CCWA, s  319(2) uses broader language to explain when an apparent consent will not be freely and voluntarily given. This includes where the consent is obtained by force, threat, intimidation, deceit or any fraudulent means. Capacity to consent [6.60] 

A person must have the cognitive capacity to give consent (this is expressly noted in CCQ, s 348(1)). Such capacity may be lacking because of young age, intellectual impairment, intoxication, sleep or unconsciousness. In Saibu v The Queen (1993) 10 WAR 279, it was said that “consent requires, in effect, an agreement as to what it is that is being consented to. Once unconsciousness, for whatever reason, intervenes, the ability to agree, or to consent is lost”.The fact that a complainant is intoxicated will not necessarily mean that they are not capable of giving valid consent. In R v SAX [2006] QCA 397, the jury’s questions made clear that there was “a real possibility that the jury, or some of its members, was minded to come to the view that the complainant was very drunk, but conscious, when intercourse occurred” (at [20]). Keane JA emphasised, citing R v Blayney [2003] SASC 405 at [17],

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is an expression the construction and application of which is assisted by reference to what may be said to be the related, but different, expression used in the Code –​ “intellectually impaired person” … The fact that a person meets the definition of an “intellectually impaired person” does not require the conclusion that the person lacks “cognitive capacity to consent” to sexual conduct. There are several reasons why that is so. First, and most obviously, the two expressions are different. It is to be assumed that they were intended to have different meanings. That is not to say, of course, that there can be no overlap in their application. No doubt there can and will be cases in which a person who is an “intellectually impaired person” will lack that capacity. But the question of cognitive capacity to consent to sexual conduct focuses attention upon the understanding of the person, in particular, that person’s understanding of what it was that he or she was consenting to. The definition of “intellectually impaired person” directs attention to various causes of impairment (“intellectual, psychiatric, cognitive or neurological”) and to the consequences of impairment that are described much more broadly than by reference to the concept of consent. Secondly, the Code, read as a whole, requires the conclusion that a person may have “cognitive capacity to give the consent” although that person meets the definition of “intellectually impaired person”. The different and separate provisions made about sexual offences against an intellectually impaired person, and in particular the provisions of s  216(1), dealing with carnal knowledge of an intellectually impaired person, would have no work to do if such a person could never give consent to sexual intercourse. Unless “cognitive capacity to give the consent” is read as requiring a different inquiry from the definition of “intellectually impaired person”, carnal knowledge of such a person would always constitute rape.

Submission and intimidation [6.70] In Ibbs vThe Queen [1988] WAR 91 at 93, it was held that consciously

permitting penetration does not necessarily mean that the victim is freely and voluntarily consenting. This is now made clear in Western Australia in CCWA, s 319(2)(b):

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that this meant that it was incumbent on the trial judge to make clear to the jury the distinction: “between cases where the intoxication is so gross that the complainant is unable to consent and those cases where the complainant is not so severely intoxicated and she consents to sexual intercourse either because her inhibitions are reduced or for any other reason” (at [20]). A person will be found to lack the capacity to consent if they were incapable of deciding whether to consent because they were asleep or in a “drunken stupor”: R v Francis [1993] Qd R 300. The relationship between intellectual disability (discussed at [6.260]) and cognitive capacity was considered in Libke v The Queen (2007) 230 CLR 559; 81 ALJR 1309; [2007] HCA 30. It was found (at [93]-​[96]) that cognitive capacity:

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[W]‌here an act would be an offence if done without the consent of a person, a failure by that person to offer physical resistance does not of itself constitute consent to the act.

Submission may be due to the fact that the victim is intimidated, in which case it is not freely and voluntarily given. In Wagenaar v The Queen [2000] WASCA 325, the accused was the uncle of the victim and she submitted to the intercourse because she was intimidated by her uncle. This did not constitute valid consent. In R v Cutts [2005] QCA 306, a wheel-​chair bound woman with cerebral palsy submitted to the sexual touching and requests for sexual behaviour from a taxi driver, who had entered her home on a false pretext of needing the toilet. Such submission due to fear and a desire to make him leave the house meant that the consent was not freely and voluntarily given. While the law is quite clear that a lack of consent need not be manifest, in practice it may be more difficult to convince juries of a lack of consent where there is no evidence of physical resistance.1 Because of such difficulties, some jurisdictions have adopted a “communicative model” whereby there is a presumption that if a person does or says nothing to indicate that they are freely agreeing to the sexual act, then this should be taken to indicate that they were not consenting.2 The effect of this model is that: [i]‌nstead of focusing on whether or not the complainant resisted or whether or not she was in a fearful or intimidated state of mind, the way is now open for the prosecution to concentrate on what actions the accused took to ensure there was free arrangement to sexual penetration.3

Coercion [6.80] 

When a person consents, but only does so because they were coerced, the consent will not be found to be valid. In some cases, it may be necessary to determine just what amounts to an acceptable form of persuasion and what amounts to coercion. The fact that a person does not initially consent but is later persuaded to change their mind will not necessarily mean that there was no consent, provided that the means of persuasion adopted to obtain consent are acceptable. Engaging in “a measure of rougher than usual handling”, as was the case in Case Stated by DPP (No 1 1

See for instance B McSherry and B Naylor, Australian Criminal Laws: Critical Perspectives (Oxford University Press, South Melbourne, 2004) pp 213-​214.

2

See S Bronitt, The Direction of Rape Law in Australia: Toward a Positive Consent Standard (1994) 18(5) Criminal Law Journal 249.

3

B McSherry and B Naylor, Australian Criminal Laws: Critical Perspectives (Oxford University Press, South Melbourne, 2004) p 216.

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of 1993) (1993) 66 A Crim R 259 at 278, is unlikely to be found to be an acceptable means of persuasion. Threats

Where a person gives consent, but only because they were threatened, it may be found that the consent is not valid.There has been some discussion in cases about whether any threat is sufficient to invalidate consent or whether the threat must be of a certain severity. In R v PS Shaw [1995] 2 Qd R 97, the accused obtained consent from the victim by threatening that she would not be allowed to return to her parent’s home and would be subjected to further abuse if she did not engage in sexual intercourse. Pincus JA held that a threat would only invalidate the consent in instances where it is one of substantial harm. In contrast, McPherson JA argued (at [116]): “The section does not require that the threats or intimidation must, objectively speaking, be substantial.”Therefore, the only question is whether the threat operated on the mind of the victim and induced the victim to give consent, not whether the threat was of such substantial harm that it would induce the average person to consent. This latter approach was taken by Steytler P in Michael v Western Australia (2008) 183 A Crim R 348; [2008] WASCA 66. In this case, the appellant pretended to be a police officer and threatened two sex workers (P and T) that he would cause them problems if they did not consent to a reduced price (P) or free sex (T). Steytler P stated (at [74] and [76]): It seems to me that, on their ordinary meaning, the words “threat” and “intimidation” are not limited to the threat of physical violence. A threat is as much a threat if it is one, for example, of blackmail as it is if it is one of physical violence. The same is true of a threat of substantial economic harm. However, there remains a question whether a line should be drawn and, if so, where … There is an obvious difficulty, in circumstances in which no limitation has been imposed by the legislature, in the notion that judges should direct juries, as a matter of law, as to which types of threat may vitiate consent in the sense to which I have referred. While difficulties may arise if any threat is to suffice, it seems to me that the legislature has chosen to impose a subjective test which does not have regard to the nature of the threat except insofar as the jury is required to assess whether the victim’s consent was in fact “obtained by” the threat or intimidation.

The correct approach is clearly only to question whether the threat operated on the mind of the victim and caused them to give apparent consent. As stated by the Law Reform Commission of Victoria in Report No 43, Rape and Allied Offences: Procedure and Evidence (Melbourne, 1986) pp 26-​27: [T]‌he new focus of sexual offence laws [is] the protection of freedom of choice in sexual encounters. Confining a lack of consent to cases where the offender uses

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[6.90] 

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force or violent threats limits the true exercise of that choice. The law should be concerned not only with the protection of physical safety but also with the power imbalances which can exist between people.

Therefore, it is irrelevant whether another person would not have been affected by the threat in the same way as the victim was affected. Nor is an accused’s intention relevant. As was stated by Boddice J in R v Motlop [2013] QCA 301 (at [42]-​[43]): The issue of consent is not determined by reference to the intention of the person inflicting the violence. The issue is whether consent was freely and voluntarily given by the complainant. That involves a consideration of whether the consent of the particular complainant was obtained or induced by the conduct in question. The issue the jury had to determine, beyond reasonable doubt, was whether any consent by the complainant was obtained or induced by the earlier force or the threat or intimidation of further force should she not comply with the request for sexual intercourse. In determining that question, it was irrelevant whether another may have ignored or resisted a similar threat or what was the intention of the appellant at the time of the infliction of actual violence.

Deceit and fraud [6.100] 

The Codes in both Queensland and Western Australian follow the common law approach that consent will not be valid when a person is misled about the nature and character of the act or the identity of the offender: CCQ, s 348(2)(e), 348(2)(f); CCWA, s 319(2). In Papadimitropoulos v The Queen (1957) 98 CLR 249 (Papadimitropoulos), the accused fraudulently misrepresented to a non-​ English-​ speaking, young, Greek woman that lodging a notice of intention to marry at a registry office meant that they were married.The girl then consented to sexual intercourse with the accused because she believed that they were married.The issue here was whether the fraud on the part of the accused invalidated the woman’s consent. The trial judge and the majority of the Full Court of the Supreme Court found that the fraud had vitiated the consent because (at 254): A mistake of such a kind in our opinion makes the act which took place essentially different from that to which she supposed she was consenting. What she was consenting to was a marital act, an act to which in her mistaken belief she was in duty bound to submit. What she got was an act of fornication –​an act wholly different in moral character.

However, the High Court held that the consent was valid and was not vitiated by the conduct of the accused (at 261): The judgment of the majority of the Full Court of the Supreme Court goes upon the moral differences between marital intercourse and sexual relations without marriage. The difference is indeed so radical that it is apt to draw the mind away

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from the real question which is carnal knowledge without consent. It may well be true that the woman in the present case never intended to consent to the latter relationship. But, as was said before, the key to such a case as the present lies in remembering that it is the penetration of the woman’s body without her consent to such penetration that makes the felony. The capital felony was not directed to fraudulent conduct inducing her consent. Frauds of that kind must be punished under other heads of the criminal law or not at all: they are not rape … To return to the central point; rape is carnal knowledge of a woman without her consent: carnal knowledge is the physical fact of penetration; it is the consent to that which is in question; such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing. But once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape.

In this case each of the women consented to the applicant introducing the transducer into her vagina in the performance of the act of conducting a transvaginal ultrasound examination. That is precisely what the applicant did. For the reasons earlier discussed the woman’s consent to the proposed act which she knew to be of the nature and character of the act which was done, was not deprived of reality if she believed the applicant proposed to do the act solely for a medical diagnostic purpose and if he actually did it solely for his own sexual gratification. The applicant did no act which was essentially different from the act which the women knew he proposed to do, and to which they consented. [6.110]  Therefore, under common law, apparent consent will only be found to be invalid where the victim is misled about the nature of the act or the identity of the person committing the act. However, the CCQ makes it clear that consent will not be held to be freely and voluntarily given where it is obtained by false or fraudulent misrepresentations about the nature or the purpose of the act (CCQ, s 348(2)(e)) (see R v BAS [2005] QCA 97) or by the accused inducing a mistaken belief that he or she is the person’s sexual partner: CCQ, s 348(2)(f). In R v Pryor (2001) 124 A Crim R 22; [2001] QCA 341, the appellant unlawfully entered the bedroom of the accused and had sex with her. She assumed that the offender was her sexual partner. It was found that the appellant had misled the victim about his identity by placing himself in the victim’s bedroom at night where no person other than her partner could reasonably be expected to be. He had thus induced the

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In R v Mobilio (1990) 50 A Crim R 170 (Mobilio), the defendant, who was a radiographer, undertook ultrasound examinations on several women who did not actually require such examinations. The issue was whether the consent was invalid because the women only consented on the basis that the examination was necessary for medical diagnostic purposes. It was found (at 184) that the consent was valid because there had been no fraudulent representation about the nature of the act:

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victim to believe that he was her partner (for a similar case, see R v Basacar [2006] QCA 352). In R v BAS [2005] QCA 97, the appellant practiced natural or alternative medicine. He was convicted of rape as well as other offences when it was found that he had inserted his fingers into the vaginas of some complainants and touched their breasts and other body parts for his own sexual gratification and not for therapeutic reasons. As was explained by McPherson JA (at [3]‌-​ [4], emphasis in original): Rape has as recently as 2000 been re-​defined in s  349 of the Criminal Code in what may be described as, for the most part, gender neutral language. For present purposes, it is enough to focus on those parts of the definition in s 349(2)(b) that have the effect of making it rape if a person “penetrates” by inserting a finger or fingers in a woman’s vagina without her consent. By s  348(1), “consent” means consent freely and voluntarily given. Consent in this sense is excluded under s 348(2) if it is obtained: “(e) by false and fraudulent representations about the nature or purpose of the act”. This does not differ markedly from the original definition of rape in s 347 of the Code, which made it rape if the complainant’s consent was obtained “by means of false and fraudulent representations as to the nature of the act”. At the time the Code was enacted in 1900, there were already reported decisions on rape at common law in which the accused had succeeded in persuading a woman to consent to sexual intercourse by fraudulently representing that he was performing a medical operation or the like. See, for example, R v Flattery (1877) 2 QBD 410. In R v Williams [1923] 1 KB 340, a church choirmaster was convicted of rape after inducing the complainant to believe that what he was doing would improve her singing voice. He was also convicted of indecently assaulting another girl after a similar pretence. Decisions like those were at the time regarded as examples of consent obtained by fraudulently misrepresenting the “nature” of the act, which was the expression used in this context in the now repealed s 347 of the Code. The current s 348(2) (e) extended it to false and fraudulent misrepresentations about “the nature or purpose” of the act. Proof of purpose entails inquiry into the state of mind of the person alleged to have it, in order to determine that person’s true or “genuine” state of mind at the time. Coupled with the requirement that the representations about purpose be “false and fraudulent”, it means that in this case the prosecution undertook the burden of proving to the satisfaction beyond reasonable doubt of the jury that the appellant had dishonestly misrepresented his purpose, or his true state of mind, to the complainants whom he persuaded to consent to the acts which he carried out.

Note that in that case it was unnecessary to consider what the outcome would have been had the appellant had two purposes; both self-​g ratification and genuine therapy.This is because the trial was conducted on the basis that he had only one of those purposes (self-​g ratification).

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However, there are still limitations to the type of fraud that will vitiate consent. As was explained in R v Winchester (2011) 222 A Crim R 1; [2014] 1 Qd R 44 at 35 per Chesterman JA: The law as it was explained by the High Court in Papadimitropoulos was well known when s 348 was amended in 2000. Consent induced by fraud only vitiated the consent when the subject matter of the fraud was the nature of the act or the identity of the perpetrator. Ignoring the latter consideration, which is dealt with by s 348(2)(f), the only change made to the section was to add the “purpose” of the act to its “nature” as the subject matter of a misrepresentation which could render consent not free or voluntary. It did not otherwise change the law. Unless, therefore, consent to carnal knowledge was induced by a false and fraudulent representation as to the nature of the act, or its purpose, the fact that consent was induced by fraud will be irrelevant to the question of consent or no consent.The consent must have been free and voluntary but it will not be deprived of that characteristic because it was induced by fraud unless the subject matter of the fraud be that described in s 348(2)(e).

Plainly, a person’s giving or withholding consent to sexual conduct with another may be influenced by a great variety of factors and conduct on the part of that other person. A  person’s consent may be influenced, for example, by a belief engendered by words and/​or conduct on the part of the other person that the other person is promising or offering: an enduring relationship; an engagement or marriage; jewellery; emotional support; a house for children of a previous marriage; financial assistance; a paid vacation; or a combination of those things. Putting aside the question of fraudulent promises, which does not arise having regard to the way the case was left for the jury, it cannot be supposed that, at least as a general proposition, there can be no free and voluntary consent where the consent is influenced by such a promise or offer which is part of normal social interaction … The inducement arising from a promise or offer of the nature of those referred to in [82] above may be particularly strong, even, in a colloquial sense, irresistible, but, unlike the matters listed in s  348(2), the inducement would not normally be regarded as preventing the exercise by the promisee of free choice. It cannot be thought that Parliament, by the use of the innocuous language in s  348(1), intended to radically expand the circumstances in which very serious offences may be committed and to impose the severest of criminal sanctions in respect of such commonplace types of conduct. Whether the consent of a promisee entering into sexual relations after a promise or offer of the kind referred to in [82] above can be considered not to be “freely and voluntarily given” will depend on whether, having regard to the circumstances in which the promise or offer is made and characteristics of the offeree such as her intellect, maturity, psychological and/​or emotional state, the offeree is to be regarded as not having exercised her free choice.

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Therefore, in that case, a promise to give the complainant a horse in return for sex was not enough to vitiate the complainant’s consent, even though the appellant never intended on honouring the promise (at 29-​30 per Muir JA):

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[6.120] 

In Western Australia, CCWA, s  319(2) refers to obtaining consent “by deceit or any fraudulent means”. This suggests that in Western Australia, a broader approach is to be taken to the question of whether fraud invalidates consent, such that consent may be held to be invalid where the kinds of means adopted in Papadimitropoulos and Mobilio are employed to obtain consent. However, in Michael v Western Australia (2008) 183 A Crim R 348; [2008] WASCA 66, different views were taken on how to interpret “any fraudulent means”. The view of Steytler  P was that there are no limitations on the types of fraud which can invalidate consent and it was not for the court to read in limitations. He did, however, suggest (at [89]) that these words were “susceptible to an interpretation that is dramatic in its reach” and should therefore be amended by the legislature. In contrast, EM Heenan AJA pointed out (at (373)): … it would be quixotic in the extreme for any person in the current age to ignore the inevitable, that there will always be, however unsatisfactory it may be from any moral viewpoint, many instances in which men or women engage in sexual intercourse with each other when that activity is preceded, and to an extent induced, by some form of deception such as “I am not married”; “I am not seeing anyone else”; or with false and exaggerated protestations of wealth, importance or status. Examples could be multiplied of promises being made which were never intended to be kept, and of facts or conditions concealed which, if revealed, would almost certainly lead to rejection. Conduct of this kind which I think can safely be said, has probably been common since the earliest times of recorded human history, however deplorable, has not previously been regarded as criminal, or at least so criminal as to justify a conviction for the most serious form of sexual offence prevailing from time to time. That is a powerful indication that such misconduct or deceit has not generally been regarded as criminal and it would be surprising indeed if, by such an indirect means, as the amendment to s 319(2) of the Criminal Code, Parliament had intended to effect such a far-​reaching change to the law which is likely to affect and criminalise types of conduct which had not previously been treated as the most serious of the indictable sexual offences.

EM Heenan therefore found (at [384]) that CCWA, s  319(2) should be interpreted in line with the common law approach “to avoid indiscriminate applications to acts of deceit or other fraudulent means going only to antecedent matters, such as representations about payment when dealing with prostitutes, or fraudulent blandishments intended to make a person more attractive, such as the wiles of a seducer”. On this view, only fraudulent representations about the identity of the offender or the nature and character of the act would invalidate consent. In Higgins v The State of Western Australia [2016] WASCA 142, Corby J noted that (at 142): “Adopting conventional principles (R v BAS [90]), a fraudulent or deceitful representation is a representation which is false in fact and which

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the maker knows at the time of making it to be false.The maker must intend by making the representation to obtain the complainant’s consent to the act when he or she would not otherwise have given their consent. The representation must have a causal connection to the obtaining of that consent”. Withdrawal of consent

Consent must be given for the whole period of penetration. If there is penetration but no consent, then the offence is complete. Therefore, if a person initially consents, as soon as a person withdraws consent, the penetration must cease or the person will be liable for rape or sexual penetration without consent. This is set out in CCWA, s 319(1)(e) which states that “sexual penetration” as it is used in s 325 includes the continuation of any of the acts constituting penetration. In Ibbs v The Queen [1988] WAR 91, the accused continued penetration for approximately 30 seconds after the victim had withdrawn her consent.The trial judge directed the jury that there must be reasonable time elapsing between the withdrawal of consent and final withdrawal of the male from female. However, it was thought that 30 seconds was too long. The Court of Criminal Appeal rejected this approach and held that the offence of sexual penetration was constituted as soon as consent was withdrawn. Further,consent to a particular act cannot be assumed to continue indefinitely. If consent is given for a particular act of sexual penetration, the person does not need to expressly withdraw consent to further acts of penetration. Further, it cannot be assumed that a person is continuing to consent during periods of unconsciousness. See Saibu v R (1993) 10 WAR 279. Mental element (Queensland and Western Australia) [6.140] 

Neither CCQ, s 349 nor CCWA, ss 325, 326 refers to any specific intention on the part of the offender and therefore, according to the general rule in CCQ, s 23(2); CCWA, s 23(1), none needs to be established for this offence: see also BRK v The Queen [2001] WASCA 161. Thus, the accused will be liable for rape or sexual penetration without consent if there is proof of sexual penetration and that the victim was not consenting to the penetration. Mistake (Queensland and Western Australia) [6.150] 

The state of mind of the accused may be relevant if he or she seeks to rely on the excuse of mistake of fact in s 24 of both Codes by claiming

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[6.130] 

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that he or she mistakenly believed that the victim was consenting. Mazza JA explained in Higgins v The State of Western Australia [2016] WASCA 142 what evidence the accused must present for the excuse of honest and reasonable mistake to be considered by the jury (at [24]):  “the relevant question is whether there is evidence which, taken at its highest in favour of the appellant, could as a matter of law lead a reasonable trier of fact to have a reasonable doubt that the appellant honestly believed on reasonable grounds that the complainant consented to the sexual activity the subject of the charge: Braysich v The Queen (2011) 243 CLR 434 [17], [36]”. For the excuse to be made out, the accused must have had an honest belief in a current fact and there must be reasonable grounds for that belief. In R v Mrzljak (2004) 152 A Crim R 315, the court confirmed that the test of “reasonableness” was to be determined by whether there were reasonable grounds for the belief of the accused, not by what a reasonable person would have believed. The requirements for a mistake in Criminal Codes, s 24 were further explained in Aubertin v Western Australia (2006) 33 WAR 87; [2006] WASCA 229 at [43] (Aubertin): For there to be an operative mistake under s 24, an accused must have acted under an actual belief in the existence of a state of things (subjective element) and the accused’s belief must be reasonable (mixed element). The focus in this case is on the mixed element. The mixed element is not wholly objective; reasonableness is not to be adjudged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects. The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself. However, the ambit of what constitutes the personal attributes and circumstances of a particular accused has not to my knowledge been identified or exhaustively enumerated. It covers matters over which an accused has no control such as age (maturity), gender, ethnicity, as well as physical, intellectual and other disabilities. This list does not purport to be exhaustive …

Thus, in determining the reasonableness of the belief, personal factors and characteristics over which an accused has no control may be taken into account but things which are not part of a person’s characteristics, such as personal values, cannot be taken into account. As stated in Aubertin (at [46]): Further, a person’s values, whether they be informed by cultural, religious or other influences, are not part of a person’s characteristics or attributes for the purpose of assessing the reasonableness of an accused’s belief. For example, values resulting in extreme views as to the appropriate mode of dress for women, from which inferences about consent are purportedly drawn, cannot positively affect or inform the reasonableness of an accused’s belief. Values do not impact on the capacity

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to perceive or appreciate primary objective facts or the capacity to process that information. In any event, reasonableness must be judged in the light of generally accepted community standards and attitudes.

This was explained in the Queensland context in R v Rope [2010] QCA 194 at [47]-​[49] per Chesterman JA:

[20] … It is clear from its terms that s 24 requires a consideration of whether there were reasonable grounds for the accused person’s belief as to a state of things, not, in the primary judge’s words, whether a theoretical, ordinary, reasonable person would or should have made the mistake. The belief must be both subjectively honest and objectively reasonable but it is the accused person’s belief which is of central relevance. An accused person may hold an honest and reasonable but mistaken belief as to a state of things even though another ordinary, reasonable person may not have made that mistake. This distinction, which is admittedly subtle, was noted by this Court in R v Julian when discussing self defence under s  271 Criminal Code and more recently in R v Mrzljak when discussing s  24. The primary judge instructed the jury to focus on whether the mistake was reasonable in that the jury “must be satisfied beyond reasonable doubt that an ordinary, reasonable person would not have made that mistake”. The judge told the jury to “picture yourselves the theoretical, ordinary, reasonable person pulling up to overtake at whatever speed you think he did and consider whether an ordinary, reasonable person could have made that mistake”.The judge instructed the jury that the case really came down to “would an ordinary, reasonable person have looked closely and carefully enough to observe Mr  Wood’s oncoming motorcycle”. The judge asked the jury whether they were “satisfied beyond reasonable doubt that any reasonable person in Mr Wilson’s position would have or should have observed the oncoming motorcycle”. Nowhere in the judge’s directions on s 24 did his Honour emphasise to the jury the need to focus on whether they were satisfied beyond reasonable doubt that Mr Wilson’s belief, that there were no oncoming motor vehicles when he overtook the Pulsar, was not reasonable. (footnotes omitted) Fraser JA said: [38] In the second group of directions the trial judge directed the jury that whether the appellant’s mistake was reasonable was to be determined by reference to the standards of an ordinary, reasonable person in the appellant’s position. That required the jury to apply the wrong test. In my opinion the vice in this direction was that it denied the possibility that different people in the appellant’s position might have held different beliefs, each of which was nevertheless a reasonable belief.

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Before it exonerates an accused from criminal liability, s  24 requires two things (1)  a belief in a state of fact actually held by the accused and (2)  the belief is reasonable. It does not require, as the trial judge directed, a reasonable person in the circumstances of the accused to make an honest mistake; or a belief that a reasonable man would entertain. In R v Wilson [2008] QCA 349 the identical error was thought sufficient to set aside a conviction and order a new trial. The President said:

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[39] The Crown was required to prove beyond reasonable doubt that the appellant’s belief was not a reasonable belief. It did not discharge that onus by proving beyond reasonable doubt only that “a” reasonable person would not have held that belief. The principles of criminal responsibility embodied in s 24 do not operate by reference to what might be expected of a reasonable person but by reference to the reasonableness of an accused person’s belief. In that way, s  24 allows for the possibility that reasonable people in an accused person’s situation might have held a variety of beliefs, perhaps even diametrically opposed beliefs, about the relevant state of affairs. [41] The standard of care of the “reasonable person” supplies the touchstone of civil liability for injury alleged to have been caused by a defendant’s negligence. The effect of the trial judge’s direction that the jury must test the application of s 24 by reference to the theoretical conduct of a reasonable person, rather than by reference to the reasonableness of the appellant’(s) belief, was in that respect to assimilate proof of criminal responsibility to proof of civil liability for negligence. That must be regarded as a substantial error.

The fact that a person is intoxicated may be relevant when determining the honesty of the belief, that is, whether the accused actually believed that the other person was consenting, see R v O’Loughlin [2011] QCA 123. However, it cannot be taken into account to determine the reasonableness of the belief (Aubertin at [44]): However, I  am persuaded by the line of authorities that exclude intoxication, whether by reason of alcohol or drugs, as a relevant factor in supporting (rather than negativing) reasonableness under s 24 of the Code. There are obvious public policy considerations supporting that outcome. Moreover, the notions of reasonableness and alcohol or drug-​induced impairment are in my view contradictory.

Aggravated sexual penetration without consent (Western Australia) [6.160] 

In Western Australia, where the offence of sexual penetration without consent is committed in circumstances of aggravation, the relevant offence is aggravated sexual penetration without consent:  CCWA, s  326. “Circumstances of aggravation” are defined in CCWA, s 319(1) and include (without limiting the definition of that expression in s 221) that at the time, immediately before or immediately after the offence: • the offender is armed, or pretending to be armed, with a dangerous weapon; or • the offender is in company with another person; or • the offender does bodily harm; or • the offender does something which is likely seriously and substantially to degrade or humiliate the victim; or

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• the offender threatens to kill the victim; or • the victim is aged 13 but under 16.

Sexual coercion and aggravated sexual coercion (Western Australia) [6.170] 

If the accused compels the victim to engage in sexual behaviour, the relevant offence is sexual coercion (CCWA, s 327) or aggravated sexual coercion: CCWA, s 328. Sexual behaviour is defined in CCWA, s 319(4) and includes: • the victim sexually penetrating a person other than the offender; or • the victim having carnal knowledge of an animal; or • the victim penetrating themselves other than for proper medical purposes. For this offence, there is no express requirement for a lack of consent; however, the use of the word “compels” indicates that the behaviour must occur without the consent of the victim.

Sexual assault (Queensland) and indecent assault (Western Australia) As noted above, in Queensland, any non-​ consensual sexual behaviour which does not amount to rape may fall under the offence of sexual assault. This includes indecently assaulting a person (CCQ, s 352(1) (a)) as well as non-​consensual sexual behaviour where there is no assault, such as procuring a person to commit an act of gross indecency or to witness an act of gross indecency: CCQ, 352(1)(b). In Western Australia, compelling a person to engage in sexual behaviour amounts to the offence of sexual coercion (CCWA, s 327) or aggravated sexual coercion (CCWA, s 328) if there are circumstances of aggravation (detailed in CCWA, s  319). Other acts of non-​penetrative sexual assault are covered by the offence of indecent assault (CCWA, s  323) or aggravated indecent assault (CCWA, s  324) if there are circumstances of aggravation (detailed in CCWA, s 319(4)). Elements of sexual assault and indecent assault: CCQ, s 352(1)(a); CCWA, ss 323 and 326 [6.190] 

The elements of sexual assault under CCQ, s  352(1)(a) and indecent assault under CCWA, s 323 are an unlawful assault and circumstances of indecency. Where there are circumstances of aggravation, the relevant

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[6.180] 

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offence in Western Australia is aggravated indecent assault: CCWA, s 324; for circumstances of aggravation, see [6.140]. Sexual assault not involving an unlawful assault (for example, when a person is procured to witness an act of gross indecency performed by another person) is covered by CCQ, s 352(1) (b), which is discussed at [6.230]. Unlawful assault [6.200] 

An unlawful assault must be established as defined in CCQ, ss 245 and 246; CCWA, ss 222 and 223. The assault may therefore comprise the intentional, unlawful application of force to the victim, without the victim’s consent, or a bodily act or gesture indicating a threat or attempt to apply force to the victim, without the victim’s consent, where the accused has an actual or apparent present ability to apply the force. Clearly then, there can be an assault where there is no physical contact between the accused and the victim. In R v Rolfe (1952) 36 Cr App R 4, the accused was found to have assaulted the victim when he exposed himself and walked toward her making indecent suggestions. In determining whether there was consent Higgins v The State of Western Australia [2016] WASCA 142 held that “The statutory text, context and purpose lead to the conclusion that s 319(2)(a) applies when determining whether, for the purposes of s 323, there has been an ‘assault’ as defined in s 222 of the Code”. For further discussion of the assault component of this offence, see Chapter 5 at [5.10]-​[5.70]. Indecency [6.210] 

The assault must be indecent. “Indecency” is not defined in the Codes but the meaning of the term “indecency” was considered in the case of Drago v The Queen (1992) 63 A Crim R 59. In this case the appellant lived in a community house with the victim and the victim’s family. On the night in question he lifted up the pyjamas of a boy and ran a biro over parts of his body, including the boy’s penis. The appellant claimed that he did this “just to relax him” and to stop him disturbing the other boys in the shared room. The following was said about the meaning of “indecent” (at 68 per Nicholson J, emphasis added): The act of assault itself involves the human body, bodily actions or bodily functions. In its context, the word “indecent” confines those matters to ones involving sexual conduct. It is quite apparent that the Code deals elsewhere with assault simpliciter and that s 189 [now CCWA, s 323; CCQ, s 352] is directed to something more than assault. In that context the word “indecent” can only be referable to the involvement of the human body, bodily actions or bodily functions in a sexual way. … The question then becomes whether in that context criminal responsibility can only be imposed if there is an element of moral turpitude or acting in a base

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or shameful manner present. In my view that cannot be the case. The section is directed at certain bodily actions or bodily functions involving the human body in sexual conduct.The element of moral turpitude or blameworthiness arises from the carrying out of the act which by its nature constitutes an offence against morality …

The definition of indecent was also considered in R v McBride [2008] QCA 412 at [19]-​[21] per Holmes  JA (de Jersey  CJ and White  AJA agreeing) (references omitted): The learned judge commenced his direction to the jury on the elements of unlawful and indecent assault in these terms: “Well the definition of assault, of course, is still the same. The meaning of unlawful is, of course, still the same, and indecent bears its ordinary, everyday meaning. It is what the community regards as indecent. A dictionary meaning of indecent is unbecoming or offensive to common propriety …” Subsequently he completed the direction in unexceptional terms, explaining that what was indecent was to be judged by:

In R v Bryant the trial judge had similarly referred to a dictionary definition of indecent as “unbecoming or offensive to common propriety”; in that case in connection with an offence of doing an indecent act with intent to assault or offend under s 227(2) of the Criminal Code. [7]‌McPherson J, as he then was, pointed out that the word “indecent” was used in the context of many quite different offences, some of which involved lewd forms of behaviour while others did not. Indecent language was one such context; indecent assault another. It was not the function of the Criminal Code or, more particularly, of s  227, to punish lapses of good taste or good manners because jury members regarded the behaviour concerned as “unbecoming” or “offensive to common propriety”. A  great deal of human conduct could fall within that formulation without constituting an indecent act within the meaning of s  227. Sheahan  J agreed, noting that the section under consideration was in c­ hapter 22 of the Code, the heading of which was “Offences against Morality”; the offences contained in it were related to sexual impropriety or conduct containing the element of lewdness. The word “indecent” in s 227 ought not to be construed so as to include conduct which was merely “unbecoming” or “offensive to common propriety”. The reasoning in R v Bryant applies equally, in my view, to sexual assaults under s 352 of the Criminal Code.

This means that the behaviour must be more than just unbecoming or offensive to common propriety (such behaviour is covered by other offences).There must be sexual conduct or involvement of the human body in a sexual way in a manner that is offensive to common propriety, as judged by community standards: Harkin v The Queen (1989) 38 A Crim R 296.

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“… contemporary community standards … having regard to when the conduct was committed, the place at which it was committed, and the circumstances in which it was committed …”

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The touching that amounts to the assault need not be indecent if the circumstances surrounding the assault are indecent. In R v Leeson (1968) 52 Cr App Rep 185, the appellant asked his young babysitter whether she liked sex and whether she would let him have sex with her. He later put his arm around the girl and kissed her. The appellant argued that unless the act itself is indecent, the circumstances surrounding the act cannot make a common assault into an indecent assault. The court rejected this argument and held that for this offence it was sufficient that there was an assault and that there were circumstances of indecency surrounding the assault. Similarly, in R v Sargeant [1997] Crim LR 50, the accused grabbed the victim and, wielding a stick in a threatening manner, forced the boy to masturbate. It was found that the touching need not be indecent and there need not be a threat of indecent touching if there was an assault and there were circumstances accompanying the assault which the ordinary person would consider indecent. If the assault itself is not indecent and there are no circumstances of indecency, an assault cannot be turned into an indecent assault merely because the accused has a private indecent motive for the assault: see R v George [1956] Crim LR 52. However, an accused’s motive may be taken into account in certain circumstances: see R v Jones (2011) 209 A Crim R 379; [2011] QCA 19. As explained in R v McCallum [2013] QCA 25 at [37] per Gotterson  JA:  “Jones is not to be taken to propound that a direction requiring the jury to consider motive in the context of indecency must be given on every occasion where indecency is an element of the offence. White JA was careful to identify the circumstances which would require it as those where there is evidence capable of casting doubt upon the sexual quality of the alleged assault.” In R v McCallum, the appellant touched the complainant’s vagina in the course of massage treatment. Therefore the jury was not required to consider the appellant’s motive when determining indecency. “The touching of the vagina, if accepted as being deliberate, did not have any possible legitimate justification. It was not part of the massage treatment; nor did the appellant contend that it was. Thus the state of the evidence did not require the jury to consider motive in the context of indecency” (at [49]). Depending on the body part touched, the conduct may be deemed to be inherently sexual (eg, the vagina) or may be capable of being of a sexual character when considered against prevailing community standards (eg, the buttocks), see Johnson v Ramsden [2019] WASC 84. In Jones, a paramedic carried out, of his own accord, a follow up electro-​ cardiogram (“ECG”) on a woman at her house. He brushed her breast as he placed two of the ECG pads on the breast area. He was convicted under CCQ, s  352(1)(a). There was evidence that he had a genuine interest in

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ECG testing and results.The appellant argued that the jury was not directed correctly as the trial judge stated that motive was irrelevant in considering whether the assault was indecent. His appeal was successful and a retrial was ordered. White JA (with whom Jersey CJ and Fraser JA agreed) stated (at [29]-​[30], [32], footnotes omitted): The body of evidence, if directed on motive, may have been sufficient for the jury to have a reasonable doubt about any sexual connotation in the assault. That might be so even if the jury accepted that the appellant obtained the complainant’s consent to the further procedure by fraudulently representing that he came at the behest of a doctor. The lesser alternative of a simple assault was not left to the jury. In Drago the Western Australian Court of Criminal Appeal considered the relationship between motive, as discussed in Harkin and Court impacting upon the characterisation of the act as indecent, and the provisions of s 23 of the Western Australia Criminal Code, in terms identical to s 23 of the Queensland Criminal Code. As Nicholson and Murray JJ both made clear, it is essential not to confuse motive or intention as an element of an offence under s 352 which, by s 23, has no role, and motive as a factor in characterising the assault as indecent or not. Murray J observed:

It is at that point that cases such as Court and Harkin become relevant. In Court Lord Griffiths said: Whether or not right-​thinking people will consider an action indecent will sometimes depend upon the purpose with which the action is carried out. An obvious example is the examination of an unconscious woman’s private parts. If carried out by a doctor for a proper medical purpose no-​one would consider such an examination indecent. If carried out by a stranger for a prurient interest everyone would consider it indecent … The fact is that right-​thinking people do take into account the purpose or intent with which an act is performed in judging whether or not it is indecent. If evidence of motive is available that throws light on the intent it should be before the jury to assist them in their decision. Murray J, after quoting that passage, said: That in my opinion is precisely the position achieved by the Code, s  23. In commenting upon the facts of that case, Lord Griffiths (again at 35) said: “If a juryman is asked to decide whether a man beating a young girl’s bottom is acting indecently, the first question he is likely to ask is –​why was he doing it?” His Honour continued: But where the act in question was capable of being regarded as indecent, but was not necessarily to be so regarded in itself, the motivation of the actor might

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whether an act may be described as indecent because it offends against community standards of decency, may depend not only upon the nature or quality of the act in itself, but upon the motive or purpose of the actor. That would be so under the Code in my view, just in the same way as at common law.

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operate in one of two ways. It might of course confer the quality of indecency upon an act which might, differently explained, be held not to be so. On the other hand, the motive of the actor might render innocent an act which otherwise, without explanation, might be regarded as indecent. … The quality of “indecency” is pre-​eminently a question for a jury and where there is evidence capable of casting doubt upon the sexual quality of the alleged assault, the motive of the alleged offender must go to the jury for their deliberation and decision. That did not occur here and the appellant has lost a real chance of acquittal. In that circumstance the conviction below should be set aside and a re-​ trial ordered.

The relevance of intention in determining indecency was explained in R v BAS [2005] QCA 97 adopting the direction given in Harkin v The Queen (1989) 38 A Crim R 296 to explain when intention is required and when it is not required (at [16] per McPherson JA (footnotes omitted)): In focusing on the appellant’s purpose, the direction was in accordance with the law as stated in R v Harkin: “It is in my view clear that if there be an indecent assault it is necessary that the assault have a sexual connotation. That sexual connotation may derive directly from the area of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault … [In such a case the] purpose or motive of the [accused] in behaving in that way is irrelevant.The very intentional doing of the indecent act is sufficient to put the matter before the jury. But if the assault alleged is one which objectively does not unequivocally offer a sexual connotation, then in order to be an indecent assault it must be accompanied by some intention on the part of the assailant to obtain sexual gratification.” Although that was said in the context of a charge of indecent assault, the concept of indecency is relevantly the same in relation to the offence of indecent dealing.

Mental element [6.220] 

Neither CCQ, s 352(1)(a) nor CCWA, s 323 mention any specific intention and therefore none needs to be established. Thus, the fact that the accused did not intend the assault to be indecent will be irrelevant to her or his liability if the ordinary person would find the assault to be indecent or accompanied by circumstances of indecency. This approach was confirmed in Drago v The Queen (1992) 63 A Crim R 59 at 73 where the accused was convicted despite his claim that he did the act to relax the boy and did not intend the touching to be indecent: In my opinion, in relation to an offence such as this, under the Code, s  23, the matter is very clear. Criminal responsibility for an indecent dealing will flow from an act which is willed, or done deliberately or consciously. In this case that had to

CHAPTER  6  SEXUAL OFFENCES      211

be the act of running the biro over and about the child’s penis.The offence defined in s 189 of the Code is not one with respect to which an intention to cause any particular result is expressly declared to be an element of the offence.Therefore it is the case that the result intended to be caused by the conduct of the appellant was immaterial to his criminal responsibility. So also, for the purpose of determining his criminal responsibility, was his motive for doing the act which he did.

There is authority suggesting that the assault itself needs to be intentional and that an unintentional, accidental touching of a person would not constitute an assault; nor would such conduct be indecent. For example, in Murphy v Spencer [2013] WASC 256; (2013) 232 A Crim R 74, the appellant allegedly touched the complainant on her buttock as he walked past her at a train station. At trial, it was inferred that the contact was intentional because the appellant deliberately chose a path that brought him in close proximity to the complainant. An appeal was allowed because it was not open for the trial judge to be satisfied beyond reasonable doubt that the appellant intended to touch the respondent on the buttock. As was stated (at [54]):

However, more recently, it has been held by the Court of Appeal of Western Australia that a proper construction of s 222 does not require an element of intention for an assault conducted by an application of force (in contrast to an assault by threat or attempt to apply force): Hayman v Cartwright [2018] WASCA 116; for further discussion see [5.50]. Sexual assault: CCQ, s 352(1)(b) [6.230] 

For sexual assault under CCQ, s 352(1)(b), there is no need for proof of an unlawful assault. A person can be liable for this offence where they procure a person, without their consent, to commit an act of gross indecency or to witness an act of gross indecency.

Offences against minors [6.240]  The

offences against children are structured differently in Queensland and Western Australia. In Queensland, the offences are divided according to the type of conduct and the age of the child. The age at which

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Accordingly, the offence created by s 324 of the Code requires the prosecution to prove beyond a reasonable doubt that the accused intentionally struck or touched the complainant or otherwise applied force of some kind (s  222 of the Code) without consent “accompanied with circumstances of indecency” (Cox v The Queen). An unintentional, accidental touching of a person would not constitute an assault. Further, such unintentional contact would not be indecent; it would not be offensive to common propriety and it would lack the necessary sexual character.

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a victim is thought old enough to give consent is 16. In Western Australia, the offences are divided according to the age of the child and the penalties within the offence provisions are graded according to the type of behaviour. The age of consent is 16 for all sexual acts except where the victim is under the care, supervision or authority of the offender, in which case the age of consent is 18. Queensland [6.250] 

Penile penetration of the vagina or anus (CCQ, s 6(2) explains that carnal knowledge includes anal intercourse) of a child under 16, or allowing a child under 16 to use his penis to penetrate the vagina or anus of the accused (or the attempt to do so), amounts to the offence of carnal knowledge with or of a child under 16: CCQ, s 215. The penalty for this offence is increased if the child is under the age of 12 or if the child is under the care or guardianship of the accused, or if the child has an impairment of mind. Where the child is a lineal relative of the accused, the relevant offence is incest: CCQ, s 222. Non-​penetrative sexual behaviour with a child amounts to the offence of indecent treatment of a child under 16: CCQ, s 210. Indecent treatment includes unlawfully and indecently dealing with a child, the accused allowing a child to unlawfully and indecently deal with her or him, or unlawfully procuring a child to commit an indecent act. For the meaning of indecency, see at [6.210]. “Deals with” includes doing something which would amount to an assault if done without consent: CCQ, s 210(6). Therefore, the offence applies in cases where an accused does not touch the complainant, but rather the complainant performs acts on the accused (see R v S). However, “an unexpressed desire to commit an act of indecency does not amount to indecent dealing”: R v P [2000] Qd R 401; [1999] QCA 411 at [20] per Thomas JA and Chesterman  J. This offence also encompasses wilfully and unlawfully exposing a child to an indecent act or indecent material and taking indecent recordings without a legitimate reason. “Wilfully” means that the accused must intentionally or recklessly expose the child to the act or material: R v Lockwood; Ex parte Attorney-​General [1981] Qd R 209. “Reckless” means that the accused must foresee that it is likely that the child will be exposed to the act or material. In R v Hind (1995) 80 A Crim R 105, “likely” was held to mean “a substantial –​a ‘real and not remote’ –​chance regardless of whether it is less or more than 50 per cent”: see also R v T (1996) 91 A Crim R 152; R v Hayes [2008] QCA 371. As with the above offences, the penalty is increased where the child is under 12, has an impairment of the mind, or is a lineal relative, or under the care or guardianship of the accused.

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These offences do not generally mention a mental element in relation to the age of the child. Therefore, there is no need for proof that the accused knew that the child was under the relevant age. Section 229 of the CCQ makes it clear that the general mistake provision in s 24 is not applicable to these offences by providing that not knowing that the child was under the relevant age, or believing that the child was over the relevant age, is not generally a defence unless the Code provides otherwise. The specific offence provisions deal with mistakes in relation to each offence. For all offences, there is no excuse or defence where a child is under the age of 12. In relation to the offences in ss 210 and 215, the CCQ, ss 210(5) and 215(5) allow a defence where the child is aged 12 or over and the offender had an honest and reasonable belief that the child was of or over the relevant age. This belief must be proved by the defence on the balance of probabilities. In those cases where the penalty is increased if the child is a lineal relative of the accused, the increased penalty will only apply if it is proved that the accused knew that the child was a lineal relative. If the person believed on reasonable grounds that a child did not have an impairment of mind, this is a defence to the increased penalty that applies when a child has an impairment of the mind –​ss 210(5A) and 215(5A).

[6.260] 

In Western Australia, the offences relating to children are divided into age groups, and within these offences, the penalties are graded according to the type of behaviour, with the most serious penalties being for acts of penetration. The forms of behaviour which amount to these offences include sexual penetration; procuring, inciting, or encouraging a child to engage in sexual behaviour or an indecent act; indecently dealing with a child; or indecently recording a child. Where a child is aged under 13 the relevant offence is found in CCWA, s 320 (Child under 13, sexual offences against), and where a child is aged 13 but not yet 16 the relevant offence is found in CCWA, s 321 (child of or over 13 and under 16, sexual offences against). Where the child is 16 and not yet 18, engaging in any of the forms of behaviour noted above amounts to an offence under CCWA, s 322 (child of or over 16, sexual offences against by person in authority etc) if the child is under the care, supervision or authority of the accused. Where an accused engages in the sort of behaviour listed with a child who is that person’s lineal relative (biological) or de facto (non-​biological), the relevant offence is CCWA, s 329 (Relatives and the like, sexual offences by). None of these provisions mention any mental element in relation to the age of the child, and therefore, it is not necessary for the prosecution to prove

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Western Australia

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that a person knew that the child was of the relevant age. Furthermore, the general mistake provision in s 24 is excluded and s 331 makes it clear that ignorance of age is no defence in relation to s 320 or 329. Thus, a person will be liable for an offence under s 320 if the child is under 13 even if the offender mistakenly believed that the child was older, and a person will be liable for an offence against a relative under s 329 even if they believed the child was 18 or older. In relation to offences against children aged 13 but not yet 16, a person, who is not more than three years older than the child, may have a defence to a charge under s 321 if they believed on reasonable grounds that the child was 16 or older: CCWA, s 321(9). Such a belief must be proven by the defence on the balance of probabilities. This defence is not open to a person if the child is under her or his care, supervision or authority: CCWA, s 321(9A). The same exclusion applies where the child is aged 16 but not yet 18 if they are under the care or authority of the accused: CCWA, s 322(7). Being lawfully married to the child is a defence to charges under CCWA, ss  321(10) and 322(8). In relation to sexual offences against relatives in CCWA, s 329, it must be proved that the accused knew that the child was a relative. However, s 329(11) states that it shall be presumed in the absence of evidence to the contrary that the accused knew that he or she was related to the other person; and that people who are reputed to be related to each other in a particular way are in fact related in that way.

Offences against persons incapable of giving consent Queensland [6.270] 

Sexual conduct with a person with an impairment of the mind amounts to the offence of abuse of a person with an impairment of the mind:  CCQ, s  216. Section  1 of the CCQ defines a person with an impairment of the mind as a person with a disability that: (a) is attributable to intellectual, psychiatric, cognitive or neurological impairment or a combination of these; and (b) that results in –​ (i) a substantial reduction of the person’s capacity for communication, social interaction or learning; and (ii) the person needs support.

Having or attempting unlawful carnal knowledge (penile penetration of the vagina or anus) of a person with an impairment of the mind, or

allowing or attempting to allow such a person to have carnal knowledge of the accused, is an offence under CCQ, s 216(1). This offence also covers non-​penetrative conduct, such as indecently dealing with a person with an impairment of the mind, procuring a person with an impairment of the mind to commit an indecent act, unlawfully allowing an person with an impairment of the mind to indecently deal with him or her, wilfully and unlawfully exposing a person with an impairment of the mind to an indecent act, wilfully exposing a person with an impairment of the mind to an indecent object or material without legitimate reason or indecently recording a person with an impairment of the mind without legitimate reason: CCQ, s 216(2). The penalties for these offences are increased where the accused is the guardian of the person or the person is under the accused’s guardianship or care (CCQ, ss 216(3), or where the impaired person is, to the knowledge of the accused, a lineal relative: CCQ, s 216(3A). It is not necessary to prove that the accused knew or was even aware that the person had a mental impairment. However, where an accused believed on reasonable grounds that the victim was not intellectually impaired, he or she may have a defence:  CCQ, s 216(4)(a). This has to be proven by the defence on the balance of probabilities (see R v Libke [2006] QCA 242). Similarly, a person may have a defence if it is proved on the balance of probabilities that, in the circumstances, the act did not constitute sexual exploitation of the victim: CCQ, ss 208(4)(b), 216(4)(b). Whether an act amounts to sexual exploitation was considered in R v Little (2013) 231 A Crim R 145; [2013] QCA 223. This case involved a 22-​year-​old woman with an intellectual disability amounting to an impairment of mind. However, she had the ability to consent to sexual intercourse. The appellant was a 53-​year-​old taxi driver who provided taxi services for disabled people to a workshop where the complainant worked. The appellant was charged with six offences relating to the sexual exploitation of an intellectually impaired person. The appellant and the complainant had a friendship that the complainant said had developed into a romantic relationship. The complainant had referred to the appellant as her boyfriend and stated that he sometimes told her that he loved her and was probably fond of her. On an appeal against conviction, the meaning of sexual exploitation was discussed (at [26]-​ [28], footnotes omitted): The term “sexual exploitation” is not defined in the Code and therefore takes its ordinary meaning.The relevant Macquarie Dictionary definition of “exploitation” is “selfish utilisation”. Rightly, no complaint has been made about the judge’s direction

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216      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

to the jury that sexual exploitation means taking advantage of the complainant in a sexual way. That involves an assessment of the nature of the relationship between the complainant and the appellant; the appellant’s understanding, appreciation and knowledge of that relationship; and whether he abused that relationship for his own sexual gratification. This direction was consistent with this Court’s observations in R v Libke. … the unusual circumstances here raise a fresh set of difficulties. As I  have explained, the issue for the jury’s determination in this case was whether the appellant established, on the balance of probabilities, that he believed on reasonable grounds that his sexual conduct with the complainant did not amount to sexual exploitation (s 216(4)(b)). The resolution of that issue on the evidence, quintessentially a jury matter, was reasonably finely balanced. Properly instructed juries could reasonably have reached different conclusions resulting in either acquittal or conviction. The jury was required to assess the evidence both of the complainant and the appellant. This required the making of value judgments about the notoriously difficult matter of the nature of other people’s intimate relationships. Cases like this involving the alleged sexual exploitation of intellectually impaired young women can be expected to arouse strong emotions. On the one hand, intellectually impaired people like the complainant are vulnerable to sexual predators. But on the other hand, the complainant, a young woman with a pleasant personality and disposition, was able to give informed consent to sex and had an adequate understanding of sexuality and relationships; she was entitled to make her own decisions about forming intimate relationships. There was no evidence the appellant was cruel or unkind to the complainant.

Western Australia [6.280] 

Sexual behaviour with an incapable person is an offence under CCWA, s 330. An incapable person is a person who is so mentally impaired as to be incapable of understanding the nature of the subject of the charge against the accused, or who is incapable of guarding themselves against sexual exploitation: CCWA, s 330(1). The behaviour that amounts to this offence includes sexually penetrating an incapable person (CCWA, s 330(2)); procuring, inciting or encouraging an incapable person to engage in sexual behaviour or an indecent act (CCWA, s  330(3) and 330(5)); indecently dealing with an incapable person (CCWA, s 330(4)) or indecently recording an incapable person: CCWA, s 330(6). The penalties are graded according to the type of behaviour and are higher where the incapable person is in the care, supervision or authority of the offender. For this offence the prosecution must prove that the offender knew or ought to have known that the person was an incapable person. It is a defence to this offence if a person is lawfully married to the incapable person: CCWA, s 330(9).

CHAPTER  6  SEXUAL OFFENCES      217

Elements toolbox [6.290] 

Rape in Queensland requires proof that an accused:

1.

Had carnal knowledge with or of the victim (for this offence that means penile penetration of the vagina or anus); or

2.

Penetrated the vulva, vagina or anus of the victim with an object other than a penis; or

3.

Penetrated the victim’s mouth with his penis; and

4.

The victim was not consenting to the penetration.

Sexual penetration without consent in Western Australia requires proof that an accused: 1.

Sexually penetrated the victim; and

2.

The victim was not consenting.

1.

Compelled the victim

2.

To engage in sexual behaviour.

Aggravated sexual coercion in Western Australia requires proof of the above and circumstances of aggravation. Sexual assault in Queensland requires proof that an accused: 1.

Unlawfully assaulted the victim; and

2.

Did so indecently or in circumstance of indecency.

OR 1.

Procured a person,

2.

Without that person’s consent,

3.

To (a)

commit an act of gross indecency; or

(b) witness an act of gross indecency. Indecent assault in Western Australia requires proof that an accused: 1.

Unlawfully assaulted the victim; and

2.

Did so indecently or in circumstances of indecency.

Carnal knowledge with or of children under 16 in Queensland requires proof that an accused:

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Aggravated sexual penetration in Western Australia requires proof of the above and circumstances of aggravation. Sexual coercion in Western Australia requires proof that an accused:

218      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

1.

Had or attempted to have carnal knowledge with or of a child.

Indecent treatment of a child under 16 in Queensland requires proof that an accused: 1.

(a)

Unlawfully and indecently dealt with a child under 16; or

(b)

allowed a child to unlawfully and indecently deal with her or him; or

(c)

unlawfully procured a child to commit an indecent act; or

(d)

wilfully and unlawfully exposed a child to an indecent act or indecent material. Sexual offences against a child under 13, a child of 13 but under 16 and a child of 16 but under 18 in Western Australia require proof that an accused: 1.

(a)

Sexually penetrated the child; or

(b)

procured, incited or encouraged a child to engage in sexual behaviour; or

(c)

indecently dealt with a child; or

(d)

procured, incited or encouraged a child to do an indecent act; or

(e)

indecently recorded a child; and

2.

The child was of the relevant age for the offence; and

3.

For a child of 16 but under 18 –​that the child was under the care, supervision or authority of the accused (s 322).

Abuse of persons with an impairment of the mind in Queensland requires proof that the accused: 1.

(a)

Had or attempted to have unlawful carnal knowledge of an impaired person; or

(b)

unlawfully and indecently dealt with an impaired person; or

(c)

allowed an impaired person to unlawfully and indecently deal with her or him; or

(d) unlawfully procured an impaired person to commit an indecent act; or (e)

wilfully and unlawfully exposed an impaired person to an indecent act or indecent material. Sexual offences against an incapable person in Western Australia require proof that an accused knew or ought to have known that the person was an incapable person and:

CHAPTER  6  SEXUAL OFFENCES      219

1.

(a)

Sexually penetrated an incapable person; or

(b)

procured, incited or encouraged an incapable person to engage in sexual behaviour; or

(c)

indecently dealt with an incapable person; or

(d)

procured, incited or encouraged an incapable person to do an indecent act; or

(e)

indecently recorded an incapable person; and

2.

That the accused knew or ought to have known that the person was an incapable person.

Guide to problem solving [6.300]  • Can the accused be liable for rape in CCQ, s 349 or sexual penetration without consent in CCWA, s 325 or aggravated sexual penetration without consent in CCWA, s 326?

– Did the accused sexually penetrate the victim? • Check CCQ, s 349; CCWA, s 319 for the forms of penetration that amount to this offence.

– Did the penetration take place without the consent of the victim? • Check the meaning of when consent will be held to be freely and voluntarily given in CCQ, s 348; CCWA, s 319(2). • Apply and determine whether there was no consent, or whether there was consent but it was not freely and voluntarily given. If there was no consent, apply Criminal Codes s 24 of both codes to determine whether the accused had an honest belief, held on reasonable grounds, that the victim was consenting. – Western Australia aggravation?

only: Were

there

circumstances

of

• Check the meaning of circumstances of aggravation in CCWA, s 319. • Apply.

– Conclude whether the accused can be liable for rape or sexual penetration without consent or aggravated sexual penetration without consent.

• Can the accused be liable for sexual assault under CCQ, s 352 or indecent assault under CCWA, s 323 or aggravated indecent assault under CCWA, s 324?

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• Apply CCQ, s 349; CCWA, s 319.

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• Did the accused unlawfully assault the victim? • Check meaning of “assault” in CCQ, ss 245 and 246; CCWA, ss 222 and 223; and Hall v Fonceca [1983] WAR 309. • Apply CCQ, ss 245 and 246; CCWA, ss 222 and 223; and Hall v Fonceca [1983] WAR 309.

– Did the accused apply force directly or indirectly?



– Was there no express consent and no reason to imply consent?



– Was there any authorisation, justification or excuse?

OR

– Was there a bodily act or gesture?



– Did this indicate a threat or an attempt to apply force?



– Was there no express consent and no reason to imply consent?



– Was there an actual or apparent ability to apply force?



– Did the accused intend to make the victim apprehend the application of force?



– Was there any authorisation, justification or excuse?

– Conclude whether the accused can be liable for a common assault.

– Was the assault indecent or did it take place in circumstances of indecency? • Check meaning of “indecency” in Drago v The Queen (1992) 63 A Crim R 59; R v BAS [2005] QCA 97; R v McBride [2008] QCA 412; R v Jones [2011] QCA 19; R v McCallum [2013] QCA 25. • Apply and determine whether there is indecency. OR

– In Queensland only: did the accused procure a person to commit an act of gross indecency, or witness an act of gross indecency, without the consent of that person? – In Western Australia only: were there circumstances of aggravation? – Conclude whether the accused can be liable for a sexual assault (Qld) or an indecent assault, or aggravated indecent assault (WA). • Can the accused be liable for a sexual offence against a child?

– Check the relevant offences of carnal knowledge with or of a child under 16 in CCQ, s 215; indecent treatment of a child under 16 in CCQ, s 210; sexual offences against a child under 13 in CCWA, s 320; sexual offences against a child aged 13 but under 16 in CCWA, s 321; and sexual offences against a child aged 16 but not yet 18 in CCWA, s 322.



– Check the relevant age levels for each offence.

CHAPTER  6  SEXUAL OFFENCES      221



– Determine whether the child is of the relevant age.



– Check what sort of behaviour will amount to a sexual offence against a child.



– Apply and determine whether the behaviour fits the definitions.

– Check whether a defence applies (see CCQ, s 210(5) and 215(5) and CCWA, s 321(9), 321(10) and s 322(8)). – Conclude whether the accused can be liable for a sexual offence against a child. • Can the accused be liable for abuse of a person with an impairment of the mind in CCQ, s 216 or for a sexual offence against an incapable person under CCWA, s 330. – Check the definition of a person with an impairment of the mind in CCQ, s 1; CCWA, s 330(1). – Determine whether the person is an impaired or incapable person.

– Check the forms of behaviour which amount to this offence.



– Apply and determine whether the behaviour fits the definitions.

– See if there are any defences (for example, CCQ, s 216(4); CCWA, s 330(9)).

Revision questions 1.

Can a person be liable for rape in Queensland where they use something other than their penis to penetrate the victim’s vagina?

2.

Can a person be liable for sexual penetration without consent in Western Australia where they use something other than their penis to penetrate the victim?

3.

When will consent be valid?

4.

Must a person make clear that they are not consenting?

5.

Can a person be liable for rape or sexual penetration without consent where they did not intend to penetrate the victim without the victim’s consent?

6.

What is the meaning of “indecent”?

7.

Can a person be liable for a sexual assault or indecent assault where they do not touch the victim?

8.

Can a person be liable for a sexual assault or indecent assault where they touch the victim but not indecently?

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– Conclude whether the accused can be liable for abuse of a person with an impairment of the mind in CCQ, s 216 or for a sexual offence against an incapable person under CCWA, s 330.

222      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

9.

Can a person be liable for a sexual assault or indecent assault when they did not intend the assault to be indecent?

10. Are there any circumstances in Western Australia where a person can be liable for an offence if they commit a sexual act with a person aged between 16 and 18? 11.

Can a person be liable for abuse of a person with an impairment of the mind in Queensland even if they did not know the person had an impairment of the mind?

12.

Can a person be liable for a sexual offence against an incapable person in Western Australia even if they did not know the person was an incapable person?

Problem question Ron and Anna are at university together. Due to an injury, Anna has only 10% hearing. Ron and Anna are attracted to one another and have kissed a few times. Ron has asked Anna to have sex with him on a few occasions and Anna has always refused. Ron thinks that if Anna gets drunk at the Law School Ball she may succumb to his sexual advances. At the Law School Ball Ron and Anna are drinking vodka and orange at the bar. Anna goes off to the toilet and when she returns to the bar she walks up to a person whom she thinks is Ron (because the person also has short blonde hair, is wearing the same colour T-​shirt as Ron and is standing where Ron had earlier stood) and squeezes the person on the buttocks, saying “I’m ready for sex now”. The person is not Ron but Mary, who turns around and exclaims: “How dare you simply presume that I will have sex with a complete stranger!” Anna walks away feeling terribly embarrassed. Anna goes to the bar and has a few more vodkas to get over her embarrassment. She starts to feel quite giddy and decides to dance. Ron joins her on the dance floor and they dance very closely. When Anna says to Ron “let’s go, I need to get to bed”, Ron thinks that this means that Anna wants to go to bed with him. They leave together and arrive at Anna’s house. Once inside they kiss and Ron starts to undress Anna. They get into bed and Anna tries to roll Ron onto his stomach. Ron says “that’s good, I like it when you are dominant” and allows Anna to roll him over. Anna then inserts a finger into Ron’s anus. Ron shouts out “what are you doing, stop that”. Ron tries to turn around but can’t because Anna is sitting on his back. Anna thinks that Ron is squirming because he is enjoying what she is doing. She did not hear Ron say “stop that” because his head is turned away from her. After about a minute Anna realises that Ron does not like what she is doing so she removes her finger. Ron jumps up, grabs his clothes and leaves the house feeling humiliated. Discuss the criminal liability of Anna.

CHAPTER  6  SEXUAL OFFENCES      223

1.

Yes. Rape extends to penile penetration of the vulva, vagina or anus by an object or bodily part other than the penis (CCQ, s 349(2)(b)).

2.

Yes. The definition of “sexual penetration” includes penetrating the vagina, anus or urethra of the victim with any body part or object (CCWA, s 319(1)).

3.

Consent will be valid when it is freely and voluntarily given (CCQ, s 348; CCWA, s 319(2)).

4.

No. The victim does not need to manifest their lack of consent. See Ibbs v The Queen [1988] WAR 91 and Wagenaar v The Queen [2000] WASCA 325.

5.

Yes. A person is liable for the offence of rape or sexual penetration without consent if there is penetration and no consent. Neither offence requires a specific intention on the part of the accused. The accused may have the defence of mistake of fact in s 24 of both Codes but only if they honestly believe the victim is consenting and they have reasonable grounds for this belief.

6.

“Indecent” was defined in the case of Drago v The Queen (1992) 63 A Crim R 59 as “referable to the involvement of the human body, bodily actions or bodily functions in a sexual way.” It is to be given its ordinary and everyday meaning and assessed by contemporary community standards: R v McBride [2008] QCA 412.

7.

Yes. If there is an unlawful assault, there can be a sexual assault (Qld) or indecent assault (WA). There can be an unlawful assault where there is no touching if there is a bodily act or act or gesture indicating a threat or attempt to apply force, without the consent of the victim, with an actual or apparent present ability to apply force and with an intention to make the victim apprehend the application of force. Also in Queensland (but not Western Australia), a person can be liable for a sexual assault where they procure a person, without that person’s consent, to commit or witness an act of gross indecency.

8.

Yes. The touching need not be indecent if it is accompanied by circumstances of indecency. See, for example, R v Leeson (1968) 52 Cr App Rep 185.

9.

Yes. The person need only intend the assault (Murphy v Spencer [2013] WASC 256; (2013) 232 A Crim R 74). They do not need to intend the assault to be indecent. Indecency has a sexual connotation and is determined by what the ordinary person would consider to be indecent (R v Jones [2011] QCA 19; R v McCallum [2013] QCA 25).

10.

Yes. In Western Australia, a person can be liable for any sexual behaviour with a child aged 16 but not yet 18 if that child is under the care, supervision or authority of the offender (CCWA, s 322).

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Answers to revision questions

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11.

Yes. However, a defence is available if the accused believed on reasonable grounds that the person was not a person with an impairment of the mind. CCQ, s 216(4)(a). This has to be proven by the defence on the balance of probabilities (see R v Libke [2006] QCA 242).

12.

Yes, but only where they ought to have known that the person was an incapable person. See CCWA, s 330.

Answer to problem question Mary Anna could be liable for a sexual assault (CCQ, s 352(1)(a)) or an indecent assault: CCWA, s 323. This requires proof of an unlawful assault and indecency. Assault is defined in CCQ, s 245; CCWA, s 222 as an application of force to another without that person’s consent. There is no requirement of proving that there was an intention to apply force (see Hayman v Cartwright [2018] WASCA 116). There must be no authorisation, justification or excuse for the assault according to CCQ, s 246; CCWA, s 223. Anna does apply force to Mary when she grabs her on the buttocks. There is no reason to imply that Mary was consenting –​grabbing someone on the buttocks is not the sort of every day contact that people can be taken to impliedly consent to: see Boughey v The Queen (1986) 161 CLR 10 at 24. Anna could therefore be liable for a common assault under CCQ, s 335; CCWA, s 313. Anna could also be liable for a charge of sexual assault or an indecent assault if the assault was indecent or occurred in circumstances of indecency. “Indecency” is to be given its ordinary and everyday meaning and assessed by contemporary community standards: R v McBride [2008] QCA 412. It is clear according to Drago v The Queen (1992) 63 A Crim R 59 that indecency requires the “involvement of the human body, bodily actions or bodily functions in a sexual way”. Grabbing a person on their buttocks could be regarded as involving the body in a sexual way, see Johnson v Ramsden [2019] WASC 84. Furthermore, the circumstances –​that is, saying to the victim “I’m ready for sex now” –​clearly gives a sexual connotation to the behaviour. Anna could therefore be liable for a sexual assault (CCQ, s 352(1)(a)) or an indecent assault: CCWA, s 323. Anna may, however, be able to raise the excuse of mistake of fact in s 24 by claiming that she honestly and reasonably believed that Mary was Ron and that Ron would consent to the application of force. The first issue is whether Anna had an honest belief in a present fact. There is no reason to doubt that Anna did honestly believe that the person was Ron and the fact that this belief may have been influenced by the consumption of alcohol can be taken into account: Daniels v The Queen (1989) 1 WAR 435; R v O’Loughlin [2011] QCA 123. However, there must also have been reasonable grounds for this belief and here the fact that

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she had consumed alcohol cannot be taken into account to determine whether the belief was reasonable: Daniels v The Queen (1989) 1 WAR 435; Aubertin v Western Australia (2006) 33 WAR 87; [2006] WASCA 229. As such the excuse will only be open to her if the mistake would have been reasonable even had she not been drinking alcohol. Looking at the circumstances, it may be found that her mistaken belief that Mary was Ron was reasonable because Mary had the same hairstyle, was wearing similar clothes and was standing in the same place that Ron had previously stood. The next issue is whether the mistaken belief that Ron would consent to the assault was honest and reasonable. Again, there is no reason to doubt that Anna honestly believed that Ron would consent. Also it would seem that there were circumstances to suggest that the belief was reasonable. Anna knew that Ron was attracted to her since they had previously kissed and he had asked her for sex. Her belief that he would consent to her squeezing his buttocks may therefore be found to be reasonable. If Anna is found to have had an honest and a reasonable, mistaken belief, then according to s 24 she is to be treated as if the facts are as she believed them to be. Therefore, she would be treated as if Mary were Ron and was consenting to the assault. Anna would therefore not be liable for a common assault and therefore would also not be liable for a sexual or indecent assault.

Anna could also be liable for rape (CCQ, s 349) or sexual penetration without consent: CCWA, s 325. This requires proof of sexual penetration and a lack of consent. The forms of sexual penetration that will amount to rape or sexual penetration without consent are defined in CCQ, s 349(2); CCWA, s 319(1) and include using a bodily part to penetrate the anus of the victim. Anna has sexually penetrated Ron by inserting her finger into his anus. Ron did not give consent to this penetration, which is made clear when he tells Anna to stop it. Anna could therefore be liable for rape or sexual penetration without consent. Anna may try to raise the excuse of mistake of fact under CCQ; CCWA, s 24 by arguing that she honestly and reasonably believed that Ron was consenting to the penetration. However, while she may honestly have believed that Ron was consenting, the question is whether there are reasonable grounds for her belief: R v Mrzljak (2004) 152 A Crim R 315. In Aubertin v Western Australia (2006) 33 WAR 87; [2006] WASCA 229 it was said that while matters over which an accused has no control, such as age (maturity), gender, ethnicity, as well as physical, intellectual and other disabilities, could be taken into account, intoxication is not one of these matters. Therefore, the fact that Anna may have made a mistake because she had been drinking is not relevant if the mistake was not one that she would have made if sober. The fact that Anna heard Ron say “I like it when you are dominant”, but could not hear Ron’s protest, can be taken into consideration. However, there is little reason to think that Ron was inviting anal penetration from what Anna did hear. Further, even if Anna did not hear Ron’s protests it does not seem reasonable to believe that he was consenting given that he was

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Ron

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struggling and there were no other indicators that he was consenting. In light of all the circumstances, it would not seem that Anna’s mistake was not reasonable and therefore her claim of mistake of fact would fail and she would be convicted of rape (CCQ, s 349) or sexual penetration without consent: CCWA, s 325.

Critical thinking questions Do you think it is appropriate that the most serious sexual offence should encompass all forms of penetration of the victim equally? Do you agree that there should be no limitation on the type of threat that may vitiate consent? Does the current law regarding mistake allow stereotypes about a person’s behaviour to inappropriately influence decisions about whether the mistake was reasonable? If so what reforms would you suggest? Should the law require a direction to be given to the jury that if a person does or says nothing to indicate consent, this is sufficient to show that there was no consent? Should there be a limit on the type of fraud that will invalidate consent? If so, how would you formulate such a limitation? Should a defence of mistake only apply where the accused is close in age to the child victim’s age? Do the sexual offences against persons with a mental impairment appropriately balance the need for protection against the right of an impaired person to sexual experiences?

Readings • T Crofts and K Burton, Criminal Codes: Commentary and Materials (7th ed, Thomson Reuters/​Lawbook Co., Sydney, 2018) Ch 5. • T Crofts, Criminal Law in Queensland and Western Australia, 2nd ed (LexisNexis, Sydney, 2014) Ch 4. • K Burton, LexisNexis Questions and Answers: Criminal Law in Queensland and Western Australia (2nd ed, LexisNexis, Sydney, 2015) Ch 4.

CHAPTER 7 Property Offences Learning outcomes .........................................................................   227 [7.10] Principles...............................................................................   228 [7.20] Stealing.....................................................................................  228 [7.150] Robbery..................................................................................  238 [7.250] Burglary/​housebreaking...............................................................  245 [7.380] Fraud......................................................................................  252 [7.480] Damage to property....................................................................  264 [7.570] Elements toolbox................................................................   267 [7.580] Guide to problem solving....................................................   269 Revision questions .........................................................................   271 Problem question ...........................................................................   272 Answers to revision questions .......................................................   272 Answer to problem question .........................................................   273 Critical thinking questions .............................................................   276 Readings .........................................................................................   276

Learning outcomes • Describe the range of property offences in the Codes • Identify the provisions that create and define the offences of stealing, robbery, burglary/​housebreaking, fraud and criminal damage • Identify the elements of these offences • Explain the current judicial interpretations of these elements • Consider some relatively complex legal reasoning • Locate relevant primary sources (legislation and cases) essential for an understanding of the offences • Practise applying the law by attempting the problem question • Consider some critical thinking issues

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This chapter will enable you to:

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PRINCIPLES [7.10] 

Part  VI of both the Queensland and Western Australian Codes creates offences relating to property.These are offences in which the criminal harm caused relates to a person’s entitlement to or relationship with property. Stealing involves depriving an “owner” of their property; fraud involves deceitful or otherwise dishonest dealings that involve property. Note, however, that not all offences traditionally categorised as “property offences” involve property-​related harms alone. Offences such as robbery and burglary/​housebreaking, for example, are compound offences. Robbery is stealing with violence and burglary/​ housebreaking is committing or intending to commit an offence while entering or being in another’s place. The “internal” offence in burglary/​housebreaking can be of any kind and is commonly against the person. Therefore, although “property offences” are designed to protect relationships with property, some of them are also designed to protect the person. This chapter analyses the following, most commonly prosecuted offences in Pt VI of the Codes: 1

stealing –​and related offences;

2

robbery –​and related offences;

3

burglary/​housebreaking;

4

fraud;  and

5

criminal damage.

Stealing [7.20] 

The offence of stealing is created by CCQ, s 398; CCWA, s 378. The maximum penalty for the basic offence of stealing is five years in Queensland and seven years in Western Australia. Higher maximum penalties apply in certain circumstances:  see CCQ, s 398; CCWA, s 378. These include the following: • Queensland – 14  years imprisonment in a variety of circumstances, such as where: •​ the offender steals a testamentary instrument; •​ the thing stolen is a vehicle, or a firearm that the offender intends to use to commit an indictable offence.

– 10 years imprisonment in a variety of circumstances, such as where: •​ the thing is stolen from the person of another;

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•​ the thing is stolen in a dwelling and its value exceeds $1,000 or the offender used, or threatened to use, violence against any person in the dwelling; •​ the offender steals from their employer; •​ the offender is a company director and the thing stolen is property of the company; •​ the value of the property stolen exceeds $5,000.

Summary convictions are provided for in CCQ, ss 552BA, 552BB and 552H. • Western Australia – 14 years imprisonment in a variety of circumstances, such as where: •​ the thing is stolen from the person of another; •​ the thing is stolen from a dwelling and its value exceeds $10,000; •​ the thing is stolen from a public office where it is kept.

– 10 years imprisonment in a variety of circumstances, such as where: •​ the thing stolen is a testamentary instrument; •​ the offender has stolen from her or his employer; •​ the offender is a company director and has stolen property of the company.

Stealing under CCWA, s 378 may be tried summarily in some circumstances –​ that is, where the maximum penalty under s 378 is no more than seven years or the thing is stolen from the person of another, or the offender has stolen from her or his employer: CCWA, s 426. Stealing occurs when a person: • “steals” • “anything capable of being stolen”. Elements: Steals [7.30] 

The first element, “stealing”, is defined in CCQ, s  391; CCWA, s 371. These sections define two discrete kinds of stealing: “taking-​stealing” and “conversion-​stealing”. It is useful to consider at the very outset which of these two kinds of stealing applies in any fact situation. Does the evidence indicate a taking-​stealing or a conversion-​stealing? The difference is determined by identifying when the fraudulent intent occurred. Thus, if on the evidence the thing alleged to have been stolen has come into

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– eight years imprisonment if the thing stolen is a motor vehicle and the offender has driven it in a way that constitutes an offence under Road Traffic Act 1974, s 60 or 61.

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the accused’s possession legitimately (with no fraudulent intent), then a conversion-​stealing at a later point in time should be considered. However, if at the point of gaining possession there was, arguably, a fraudulent intent, then it may be a taking-​stealing and that analysis should be pursued. Note that in some fact situations a stealing can be analysed both as a taking-​ stealing (fraudulent intent at the point of gaining possession) and as a conversion-​stealing (fraudulent intent also later at a point of conversion). There is nothing to bar this approach but the analyses should be considered discretely.1 Once the threshold determination is made about which kind of stealing may have occurred, the elements can be examined in detail. According to CCQ, s 391; CCWA s 371, the elements of a “taking-​stealing” are: • fraudulently; • takes; and • anything capable of being stolen. The elements of a “conversion-​stealing” are: • fraudulently; • converts; and • anything capable of being stolen (CCQ); any property (CCWA). Fraudulently [7.40] 

A taking or a conversion is done fraudulently if it is done with any one of the intents listed in CCQ, s 391(2); CCWA, s 371(2).2 “Intention” in this context carries the same meaning as for other offences in the Codes. To “intend” is to “mean, to have in mind” and is distinct from motive and 1

In the case of R v Johnston [1973] Qd R 303, it was held that a “taking” of an object can continue after the accused has first moved or dealt with it. If this principle is applied, the difference between a taking-​stealing and a conversion-​stealing does not amount to much because, at least after the initial taking, the accused is converting and taking the thing at the same time. See also CCQ, s 391(4); CCWA, s 371(4), which provide that a conversion can be established whether the thing is taken for the purpose of conversion or is already in the possession of the accused. Thus, there is an overlap in legal principle between a taking and a conversion; however, the distinction is important in identifying which construction should be relied on to establish the offence. The inclusion of conversion as a form of stealing in the Codes is a significant departure from the common law of larceny, which required a trespass to the person and therefore could not be established if the thing was already in the lawful possession of the accused: see the discussion in Ilich v The Queen (1987) 26 A Crim R 232 at 251 per Brennan J.

2

Of course, the fraudulent intent needs to have existed at the moment of “taking” or “converting” the thing stolen. For the principles that determine the meaning of these conduct elements, see [7.460]; see also R v White (2002) 135 A Crim R 346; [2002] QCA 477 at [10].

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desire. (Connolly J in R v Willmot (No 2) [1985] 2 Qd R 413 at 418-​419; Keane JA in R v Reid [2006] QCA 202 at [68], [95], [111]; Zaburoni v The Queen [2016] HCA 12; R v Stevens [2014] QCA 286 at [11].) These intents are as follows: • CCQ, 391(2)(a); CCWA, 371(2)(a): an intention to permanently deprive the owner of the thing or property of it or any part of it. This is the intention most often relied on to establish stealing.An intention to deprive the owner temporarily will not suffice. In R v Bailey [1924] QWN 38, the accused took his employer’s car after having been discharged from his employment. He used the car for several joy rides but had no intention of keeping it permanently. He was found to have had no fraudulent intent in taking the car, though he might have been convicted of stealing the petrol he used.3 As in other contexts, where an accused’s intention must be proved, the intention may be established through inference from evidence of her or his conduct.

• CCQ, s 391(2)(b); CCWA, 371(2)(b): an intention to permanently deprive any person of a special interest in property. This addresses the situation where a person from whom a thing is stolen had a limited legal right to the property rather than full ownership. “Special property” is defined to include “any charge or lien” and any right arising from holding possession of the thing or property.Thus, it is possible for a person to steal their own property  –​for example, if a tradesperson is lawfully entitled to retain possession of property until repair work has been paid for. Possession or being in control of a thing can amount to an entitlement for the purposes of stealing: CCQ, s 391 (7); CCWA, s 371(7); Vines v The Queen (1993) 11 WAR 517. Moreover, that possession of a thing is unlawful does not preclude “ownership” for the purposes of stealing:  Vines v The Queen (1993) 11 WAR 517. • CCQ, s 391(2)(c); CCWA, s 371(2)(c): an intention to use the thing as a pledge or security. This requires an intention to pledge the thing or offer it as security to a third person but does not include an intention to deprive the owner of the thing until the owner pays the person who has taken the thing: Bowman v The Queen [1980] WAR 65.

3

In the case of the taking of a motor vehicle, a person now commits an offence even in the absence of an intention to deprive the owner permanently: see CCQ, s 408A; CCWA, s 371A. See also CCQ, s 391(2)(f); CCWA, s 371(2)(f): money may be stolen even though the offender had an intention to repay it.

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• CCQ, s 391(2)(d); CCWA, s 371(2)(d): an intention to part with the thing on a condition as to its return which the person taking or converting it may be unable to perform. • CCQ, s  391(2)(e); CCWA, s  371(2)(e):  an intention to deal with the thing in such a manner that it cannot be returned in the same condition it was in at the time of the taking or conversion. • CCQ, s 391(2)(f); CCWA, s 371(2)(f): in the case of money, an intention to use the thing at the will of the person who takes or converts it, although the person may intend to afterwards repay the amount to the owner. A taking or conversion may be fraudulent even though it is not done in secrecy or with any attempt at concealment:  CCQ, s  391(3); CCWA, s 371(3). In addition, a conversion is not fraudulent if the person converting or taking the thing has found a lost thing and believes on reasonable grounds that the owner cannot be discovered: CCQ, s 391(5); CCWA, s 371(5). Takes [7.50] 

The remaining elements of a taking-​ stealing are “takes” and “anything capable of being stolen”. To have taken the thing stolen, the offender must have moved or otherwise actually dealt with it by some physical act:  CCQ, s  391(6); CCWA, s  371(6). Touching a thing will not suffice, but any small amount of movement will: Wallis v Lane [1964] VR 293. Although a stealing is not complete until the thing has been moved or dealt with physically, a stealing can continue after the initial movement: R v Johnston. Anything capable of being stolen Queensland [7.60] 

Section 390 of the CCQ defines “things capable of being stolen” as follows: Anything that is the property of any person is capable of being stolen if it is –​ (a) moveable;  or (b) capable of being made moveable, even if it is made moveable in order to steal it. Section 1 of the CCQ defines “property” to include: (a) everything animate or inanimate that is capable of being the subject of ownership; and (b) money;  and (c) electrical or other energy, gas and water; and

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(d) a plant; and (e) [tame and untamed animals]; and (f) [a thing produced by such animals]; and (g) any other property real or personal, legal or equitable, including things in action and other intangible property. Western Australia [7.70] 

Section 370 of the CCWA defines “things capable of being stolen” as follows: Every inanimate thing whatever which is the property of any person, and which is movable, is capable of being stolen. Every inanimate thing which is the property of any person, and which is capable of being made movable, is capable of being stolen as soon as it becomes movable, although it is made movable in order to steal it …

The section then sets out the circumstances in which tame animals, animals “wild by nature” and things produced from animals are capable of being stolen. “Animals” include “any living creature and any living aquatic organism other than mankind”. Section 1 of the CCWA defines “property” to include “real and personal property and everything, animate or inanimate, capable of being the subject of ownership”. Converts

There is no definition of “converts” in the Codes. However, in Ilich v The Queen (1987) 26 A Crim R 232 (Ilich v The Queen) at 237, the High Court interpreted the term as follows: “For the purposes of the Code a person converts property if he deals with that property in a way which is inconsistent with the right of the owner of the property.”4 The accused is required to have moved or otherwise dealt with the thing converted by 4

In R v Angus [2000] QCA 29 at [15], Pincus JA (see also McMurdo P at [1]‌) adopts the common law definition of “conversion” in Lancashire & Yorkshire Railway Co v MacNicoll (1919) 88 LJKB 601 at 605: “[D]ealing with goods in a manner inconsistent with the right of the true owner amounts to a conversion provided that it is also established that there is also [sic] an intention on the part of the defendant in so doing to deny the owner’s right or to assert a right which is inconsistent with the owner’s right.” Thus, Pincus JA appears to be of the view that a “conversion” requires a consideration of the accused’s intention as well as her or his conduct. See also R v Stevens [2014] QCA 286 at [11]. But it is doubtful that “conversion” in the Codes requires a consideration of the accused’s mental state since the Code definition of “stealing” includes a distinct element of fraudulent intention and this is where the mental element of stealing is established. Thus, the better view of the element of “converts” in CCQ, s 391; CCWA, s 371 is that found in Ilich, which interprets it as a conduct element only.

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[7.80] 

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some physical act: CCQ, s 391(6); CCWA, s 371(6). It may be that inaction in some circumstances can amount to such dealing: see R v Angus [2000] QCA 29. Since conversion involves dealing with a thing inconsistently with the right of the owner of property, a person cannot, generally, convert their own property: Ilich v The Queen (1987) 26 A Crim R 232. Questions have arisen about who is the owner of property in the situation where both the accused and the person handing over possession of the property have made a mistake about something at the time of the transfer of possession. If the person handing over the property has, as a matter of law, also handed over the ownership of the property, then it is impossible for the person who received the property to be guilty of a conversion-​stealing. This is because if they are, as a matter of law, the owner of the property they cannot do anything inconsistent with the owner’s rights. Note that this situation only arises where both parties are mistaken at the time the property actually changed hands. If the accused knew of the other’s mistaken understanding and received the property with a fraudulent intent, then under the Codes there will be a taking-​stealing. Ilich v The Queen, the accused worked as a locum veterinary surgeon for the complainant while the complainant was away on holidays. The complainant returned early and, being dissatisfied with the accused’s work, dismissed him and sought to settle his payment. An agreement was reached that Mr Ilich should be paid $1,176. There were different accounts of the meeting held between the accused and the complainant. The complainant said that he gave the accused his money, which the accused counted. The complainant had put another amount of money in a green envelope on a desk and was then called out of the room to answer a phone call. When he returned the accused had left and the green envelope was opened and empty. On this account, the accused could be guilty of a taking-​ stealing. However, the High Court was required to consider the account of the meeting given by the accused, who gave evidence that the complainant threw three lots of money onto the desk, the first amount in a green envelope. He signed for the money without counting it and was virtually “ordered” to leave by the complainant. The accused said he did not count the money until late that night and found there was a $530 overpayment. He separated that amount and put it in a cooler bag in his car and the next day drove the several hundred kilometres home to Perth. When questioned by police he said he had not yet decided what to do with the overpayment and had put it in “safe-​keeping” until he made that decision. On the accused’s account, there was no evidence of a taking-​stealing because there was no fraudulent intent at the time he took the money. And [7.90] In

if the ownership of all the money passed to him when he was given it, then there could be no conversion-​stealing because he was by then the owner of the money. Thus, the High Court considered the principles for determining whether ownership of property passes where there has been a mistake on the part of both parties. According to Wilson and Dawson JJ (with whom Deane J was in general agreement), ownership in property will pass where the victim has made a mistake and intends for it to pass, and the accused had no fraudulent intent, unless the mistake was of a “fundamental” kind. A mistake will be fundamental if it is in respect to the identity of the recipient, the identity of the thing passed, or the quantity of the things passed. Their Honours discussed R v Middleton (1873) LR 2 CCR 38 as an example of a case in which the parties were mistaken as to the identity of the recipient. There, a post office teller gave the accused an amount of money that was in fact owed to another person in the belief that the accused was that other person. The case of R v Ashwell (1885) 16 QBD 190 was analysed as an example of a mistake as to the identity of the thing passed.There, the victim passed a sovereign to the accused. It was dark and both men believed it was a shilling. Russell v Smith [1958] 1 QB 27 was referred to as an example of a mistake as to the quantity of the thing delivered. The accused ordered pig meal and eight bags more than he ordered were delivered. The mistake in Ilich v The Queen clearly was not a mistake as to the identity of either the recipient or the thing passed, but on its face it could have been a mistake as to the quantity of the things passed –​that is, more notes than were intended. However, a majority of the court found that this was not a fundamental mistake and so it did not prevent ownership passing. Wilson and Dawson JJ (and also Deane J) reasoned (at 245) that ownership of money, when it passed into currency, passed in a transaction. Thus, the case of currency constitutes a qualification on the third category of “fundamental mistake” identified by the court and, as such, a mistake about the quantity of money passed will not prevent ownership from passing. Brennan  J, the other justice forming the majority in Ilich v The Queen, arrived at the same conclusion with a slightly different analysis. His Honour said (at 253): When a person in possession of money in the form of currency hands it to another intending him to be the owner of it and the other receives it with the same intention, prima facie the other acquires ownership of the money. That is because currency, when it passes from hand to hand, transfers not merely possession of the notes or coins but property in them.

Therefore, although the complainant in Ilich v The Queen was free to bring a civil action against Mr Ilich for recovery of the overpayment, Mr Ilich could

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not be guilty of converting the money because he became the owner of it when he took possession of it. Thus, generally, a person cannot steal their own entitlement to property. However, the CCQ creates an exception to this where the thing taken is not identifiable. Section 391(2A) provides: A person who has taken possession of anything capable of being stolen in such circumstances that the thing thereupon is not identifiable is deemed to have taken or converted the thing fraudulently notwithstanding that the property in the thing has passed to the person if, at the time the person transports the thing away, the person has not discharged or made arrangements with the owner or previous owner of the thing for discharging the person’s indebtedness in respect of the thing.

This provision would apply, for example, where a person makes off with petrol without paying. Anything capable of being stolen or any property Queensland [7.100]  For

both a taking-​ stealing and a conversion-​ stealing, in Queensland the thing stolen must be “anything capable of being stolen”. Therefore, the definitions of this phrase in s 390 and “property” in CCQ, s 1 are relevant: see at [7.60]. Western Australia [7.110] 

In Western Australia, the situation is different. For a taking-​ stealing, the thing taken must be “anything capable of being stolen”, whereas for a conversion-​ stealing the thing converted must be “any property”. Section 371(7) provides: In this section, property includes any description of real and personal property, money, debts, bank credits, and legacies and all deeds and instruments relating to or evidencing the title or right to any property or giving a right to recover or receive any money or goods and also includes not only such property as has been originally in the possession or in the control of any person but also any property in which or for which it has been converted or exchanged and anything acquired by the conversion or exchange, whether immediately or otherwise.

The definition of “property” in CCWA, s 1 is also relevant: see [7.70]. Elements: Anything capable of being stolen [7.120] 

If the prosecution proves one or the other kind of “stealing” defined in CCQ, s  391; CCWA, s  371, then one of the two elements of stealing under CCQ, s 398; CCWA, s 378 is proved.With respect to a taking-​ stealing in either jurisdiction and a conversion stealing in Queensland, the

second element in CCQ, s  398; CCWA, s  378 is automatically satisfied because the prosecution is required under CCQ, s 391; CCWA, s 371 to prove that the thing taken or converted was a thing capable of being stolen. But where there is a conversion stealing in Western Australia, this is not the case. Section 371 of the CCWA requires the prosecution to prove a person fraudulently converted any property and therefore the requirement to prove the thing was “capable of being stolen” is a distinct element in CCWA, s 378 that must be proved. The difference between the requirement “any property” in s 371 and “anything capable of being stolen” in s 378 was the basis of a rather ingenious, technical and, ultimately, unsuccessful argument in the case of Sawiris v Scott [1979] WAR 39. To understand the argument, it is necessary to understand the concepts of a “chose in possession” and a “chose in action”. The former is a form of property that can be possessed in concrete form –​for instance, a chair, a car, cash. On the other hand, a “chose in action” is an abstract form of property, a right that has no concrete form –​for example, an entitlement to claim credit. In Sawiris v Scott [1979] WAR 39, the prosecution sought to prove the accused had stolen money from a bank account by converting it to his own use. The money was deposited into the accused’s bank because he was managing a workplace football tipping competition.Therefore, there was no fraudulent taking. However, the accused then withdrew money from the account to use for purposes inconsistent with those of the participants of the tipping competition and, in doing so, converted the money. The “property” the accused converted was a chose in action because having money in a bank account provides the holder of the account with the right to demand money from the bank but does not give title to any particular money. There is no chose in possession owned by the account-​holder, only a chose in action –​an abstract right. Therefore, the prosecution was able to prove that the accused fraudulently converted property within the meaning of CCWA, s 371, relying on the definition of “property” in s 371(7), which includes choses in action. However, in his defence, the accused argued that the prosecution had failed to prove one of the elements in CCWA, s 378 –​ namely, that he had stolen “anything capable of being stolen”. This was because the definition of that phrase in CCWA, s  370 does not include choses in action, only choses in possession. The Western Australian Court of Appeal rejected this argument. The terms of s  378 could not be read down; rather, that section should be construed in its context in light of the terms of s 371(7) and the purpose of the legislation. So construed, the kinds of property that could be stolen within s  378 were not confined to the definition of “property” in s 370.

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The doctrine of recent possession [7.130] 

The doctrine of recent possession is a common law rule (see Bruce v The Queen (1987) 74 ALR 219), which has been applied in Code cases: see Ugle v The Queen (1989) 43 A Crim R 63.The doctrine is a rule of evidence rather than a principle of the substantive law of stealing. It permits an inference of stealing to be drawn from evidence that the accused was in possession of property soon after it was stolen. Unlawful use of a motor vehicle [7.140] 

Both Codes prohibit the unlawful use of a motor vehicle. Both Codes require proof of a lack of consent on the part of either the owner or the person in lawful possession of the vehicle (Queensland) or of the person in charge of the vehicle (Western Australia). However, the prosecution is not required to prove that the offender intended to permanently deprive that person of the vehicle. Therefore, they capture joyriding and other conduct that may not be encompassed by the definition of “stealing”. The Codes prohibit this conduct by different methods. In Queensland, CCQ, s 408A creates a distinct offence of unlawful use or possession of a motor vehicle. In Western Australia, CCWA, s 317A provides that unlawful, non-​consensual use of a motor vehicle amounts to “stealing”, so that this conduct is brought within the general offence of stealing in CCWA, s 378.

Robbery [7.150] 

Robbery is a compound offence in that it has two major components: • stealing with • violence (including threatened violence). The offence of robbery is created by CCQ, s 409 (along with the punishments in s 411); CCWA, s 392. In both jurisdictions, the offence comprises stealing associated with violence to a person or property. The violence is used or threatened at, immediately before or immediately after the stealing and must be used in order to obtain the thing stolen, or to prevent or overcome resistance to its being stolen. Both jurisdictions impose a maximum penalty of 14 years imprisonment. There are several other forms of robbery that involve more serious violence or circumstances of aggravation and which attract higher maximum penalties. These more serious forms of robbery are as follows.

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• Queensland: CCQ, s 411(2) – The offender is armed or pretends to be armed with a dangerous or offensive weapon or instrument: life imprisonment. – The offender is in company with one or more other person or persons: life imprisonment. – At, immediately before or immediately after the robbery the offender wounds or uses any other personal violence to any person: life imprisonment. • Western Australia – CCWA, s  392(c). Immediately before, at or immediately after the robbery the offender is armed with any dangerous or offensive weapon or instrument, or pretends to be so armed: life imprisonment. – CCWA, s  392(d). The offence is committed in circumstances of aggravation: 20 years imprisonment.“Circumstances of aggravation” is defined in s 391 to mean: •​ •​ •​ •​

the offender is in company with another person or persons; the offender does bodily harm to any person; the offender threatens to kill any person; or the person to whom violence is used or threatened is of or over 60 years.

Elements: Steals The elements of the law of stealing outlined at [7.20]-​[7.120] above are relevant here. Note that robbery will most often entail a taking-​ stealing, not a conversion-​stealing, because the violence required for robbery means that the fraudulent intent is likely to accompany the physical taking of the thing stolen. Elements: At, immediately before or immediately after the time of stealing, uses or threatens to use actual violence (CCQ)/​ violence (CCWA) to any person or property [7.170] 

The violence in robbery may be merely threatened and may be to property rather than a person. Although there is no difference in the substance of the offence, in Queensland “actual violence” is required, whereas in Western Australia merely “violence” is required. “Actual violence” has been held to mean “personal violence” and that this means no more than

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[7.160] 

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using physical force that is real and not remote: Hood v The Queen (2000) 111 A Crim R 556 at 557-​558 per Pigeon J, following Gibbs CJ in R v De Simoni (1980) 147 CLR 383 at 393. The question as to how much force is required to constitute “violence” arose in R v Jerome [1964] Qd R 595. The prosecution alleged that the two accused assaulted the victim and took his shoes and wallet containing £3. According to the accused’s evidence, they merely took the items from an unresisting victim who was either asleep or unconscious. The Queensland Court of Appeal held (at 601) that this was insufficient force to constitute violence, stating that “[w]‌hilst it is clear the smallest amount of actual violence will suffice as an element of the charge of robbery”, to remove a purse or shoes from the body of an unconscious man, or a man who was otherwise not offering any resistance did not itself amount to actual violence. The violence associated with robbery may be of a “defensive” nature –​ for instance, used to escape –​and need not be a “positive” force that has been used to overpower the victim. In Hood v The Queen (2000) 111 A Crim R 556 at 558-​559, Pigeon J notes that the violence in the Code offences of robbery may be “immediately after” the stealing. This indicates a departure from the common law offence of robbery which required the violence to be for the purpose of overpowering the victim. In Hood, the accused ran away after grabbing the cash that the victim had placed on an ATM machine.The victim grabbed the accused’s shirt, was dragged along by the accused and fell to the ground when the accused’s shirt ripped. It was held by a unanimous court that the force used in struggling to free himself was violence from the accused for the purposes of the offence of robbery. Elements: In order to obtain the thing stolen or prevent or overcome resistance to its being stolen [7.180] 

The violence in robbery must be in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen. That the violence was close in time to the stealing is insufficient. The early Queensland case of R v Hay (1925) 19 QJPR 44 shows how, if it is for the purpose of overcoming resistance, the violence can occur after and distinct from the stealing but still constitute the violence associated with the robbery. Of course, if violence is used but is not for one of the purposes required for robbery, the prosecution has the option of charging the defendant with separate offences –​for instance, stealing and assault.

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Armed with a dangerous or offensive weapon or instrument or pretends to be so armed (armed robbery) Dangerous or offensive weapon [7.190] 

Objects in common use as a weapon come within the meaning of the phrase “armed with a dangerous or offensive weapon or instrument or pretends to be so armed”: see R v Hutchinson (1784) 1 Leach 339; 168 ER 273 at 274; Gibson v Wales [1983] 1 WLR 393. However, an object that is not inherently dangerous or offensive may be an offensive instrument if it is carried with the intention of inflicting or threatening harm. In R v Williams (1878) 14 Cox CC 59, a stick was held to be an offensive weapon if carried for the purpose of poaching or resisting apprehension. In Van den Berg v The Queen (1983) 12 A Crim R 113, the accused carried a bag from which protruded a few inches of the end of a rifle, which was intended to look as though he had a gun in his bag. He entered a bank and demanded money. It was held that the accused was carrying an offensive weapon5 because although it was not an offensive weapon per se –​that is, it was not a gun, sword or cosh, for ­example –​it was carried with the intention of threatening harm and therefore came within the meaning of an “offensive weapon”: at 116-​117 per Burt CJ and at 121 per Smith J. See also R v Standley (1996) 90 A Crim R 67 at 72-​73; Miles v The Queen (1997) 17 WAR 518 at 523-​ 524; Pratt v The Queen (2000) 112 A Crim R 70 at [10], [23]; and R v Hyatt [2019] QCA 106 at [71]-​[84]. [7.200] 

The fact that the accused used an offensive weapon does not necessarily mean that he or she was “armed” with one. For instance, “catching up a hatchet accidentally during the hurry and heat of an affray is not being armed with an offensive weapon”: R v Hutchinson (1784) 1 Leach 339; 168 ER 273 at 274. The accused needs to have carried the weapon with a relevant intent. The English case of R v Dayle [1974] 1 WLR 181 at 184 dealt with different legislation but illustrates the point. There the accused became involved in a dispute with the victim and, in the heat of the

5

Note that this case was decided before amendments to the robbery provisions which made pretending to be armed sufficient, however, the case remains relevant for the question: can an object not commonly used as a weapon constitute an offensive weapon within the robbery provisions?

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Armed with

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argument, snatched up a wheel jack from the boot of his car and threw it at the victim. He was charged with being in possession of a weapon with intent to use it for offensive purposes. It was held, however, that the intention the accused formed instantaneously when he threw the weapon at the victim was insufficient to show that he was in possession of the weapon with intent to use it. The same principle applies to the requirement that the accused was “armed” for the Code offences of robbery. To be armed with a weapon “signifies to be ‘in possession’ of or ‘equipped with’ a weapon of offence in the sense that the weapon is available for immediate use as a weapon”: Van den Berg v The Queen (1983) 12 A Crim R 113 at 120 per Smith J. The accused may be armed even though they are not holding the weapon. In Western Australia v Majok (2005) 152 A Crim R 25; [2005] WASC 13, in relation to one count of robbery, the accused’s co-​offender pretended to be armed with a gun. The accused said to the victim several times: “We’ve got a gun.” On another count of robbery, there was evidence the accused looked inside the boot of his victim’s car and found garden shears. He made the victim pick them up and put them on the back seat of the car. Then the accused sat in the back of the car next to the shears and behind the victim, who was forced to drive to an ATM. The accused denied he was armed because he was not in possession of the weapons. However, it was held (at [36]; see also [40-​46]) he was armed on both counts: The concept of being “armed” does not require that the weapon or thing with which the person was said to be armed was in the actual physical possession of the person. … [I]‌t is sufficient if the weapon or thing is … within the power or possession of the offender, available for use to reinforce the demand and the use or threat of violence so as to facilitate the commission of the robbery.

Circumstances of aggravation: In company [7.210] 

Robbery in company is a more serious form of the offence because the accused may receive practical help in committing the offence or because it emboldens the accused or further intimidates the victim. These considerations inform the courts’ interpretation of the concept of being “in company”. It is clear that if the person accompanying the accused physically participates in the stealing or violence of robbery, then the accused is “in company”. But what if the co-​offender is present but does not participate? In R v Brougham (1986) 43 SASR 187, the accused and his co-​offender were passengers in a taxi. They demanded the driver stop and the accused put the driver in a headlock while demanding money. The co-​offender told the accused to get the driver out of the car. Subsequently, the accused fought with the driver. The co-​offender tried to start the car but ran off when he

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was unsuccessful. At his trial, the accused argued he was not in company because his co-​offender had not taken part. King CJ (with whom Mitchell and von Dousa JJ agreed) held (at 191):

The court held that Brougham did act in company. His co-​offender was present when the accused seized the victim and demanded money; he urged the accused to get the driver out of the taxi and tried to drive the victim’s car away. This was ample evidence of participation in the relevant sense. In R v Button (2002) 54 NSWLR 455 (R v Button), the accused were convicted of aggravated sexual penetration without consent. It was alleged they raped the complainant in company. Although the offence was not robbery, the principles relating to the concept of being “in company” are relevant to robbery. (See comments to this effect by Kirby J at 462). In the early hours of New Year’s Eve 1999, five men took the complainant into remote bushland. They were charged with a total of 11 counts of rape in company over a period of about seven hours.The accused was charged with two counts. Another of the men had raped the complainant, and when she walked out from behind bushes, the accused told her to walk “this way”. One of the other men said: “Just do it or you won’t make it home.” The accused then raped the complainant twice in bushland about 50  metres away from the group. The issue on appeal was whether the accused had raped the complainant “in company”. Kirby J (with whom Heydon JA and Greg James J agreed) considered (at 465-​466) that, in order to be in company, the two or more people must share a common purpose and the co-​ offender must be “physically present”. Participation in the common purpose without being physically present  –​for example as a look-​out or as an accessory before the offence –​is insufficient. Further, the perspective of the victim in being confronted by the combined force or strength of two or more persons is relevant, though not determinative. If two or more people are present and share the same purpose, they will be “in company” even if the victim was unaware of the other person. Physical presence is required in order to be in company, but this is an “elastic concept”: R v Button at 465 per Kirby J. It does not, for example, require the co-​offender to be within sight of the accused. Kirby J concluded that there will be physical presence so long as the

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A person commits a robbery … in company where that person participates in the robbery … together with another … in the sense that the victim is confronted by the combined force or strength of two or more persons or that the force of two or more persons are [sic] deployed against the victim. It is not necessary that more than one participant actually strike or rob the victim; it is sufficient that the accused and one or more other participants be physically present for the common purpose of robbing … and of physically participating if required.

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“coercive effect of the group” is operating either to embolden the accused or to intimidate the victim into submission. In R v Button, five men held the complainant in remote bushland with a common purpose of sexually assaulting her. It was held that, in these circumstances, the coercive effect of the group may well have been operating at about 50 metres, and so the trial judge had been correct to leave the question of whether the accused was “in company” to the jury. These common law principles were applied in Western Australia v Dick (2006) 161 A Crim R 271. Attempted robbery/​Assault with intent to rob [7.220] 

In both Queensland and Western Australia, there is a lesser offence that is committed where an offender attempts to commit robbery but is unsuccessful in stealing. Queensland [7.230] 

Section  412 of the CCQ provides that a crime is committed where a person: • assaults any person, • with intent to steal, and • at, or immediately before or immediately after the time of the assault, uses or threatens to use actual violence • in order to obtain the thing intended to be stolen or to prevent or overcome resistance to its being stolen. The maximum penalty is seven years imprisonment and this increases if the offence is committed in circumstances of aggravation, such as being armed or in company. Western Australia [7.240] 

Section 393 of the CCWA provides that a crime is committed where a person: • has an intention to steal, and • uses or threatens to use violence • in order to obtain the thing intended to be stolen or to prevent or overcome resistance to its being stolen. The maximum penalty is 10 years imprisonment and this increases if the offender was armed or pretended to be armed, or the offence was committed in circumstances of aggravation as defined in CCWA, s 391.

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Burglary/​housebreaking [7.250] 

Burglary and housebreaking concern offences committed or intended to be committed in the dwelling or other premises of another. Like robbery, they are compound offences which consist of two components: • entering or being in a dwelling or other place of another; and • committing, or intending to commit, an offence. Thus, again like robbery, there is necessarily a property component (entering or being in another’s property) but the “internal” or subsidiary offence intended or committed may or may not be an offence relating to property. It may be, for example, an offence against the person, including a sexual offence. The offences in Queensland and Western Australia address the same kinds of harms and both jurisdictions create a scheme of offences that includes: • an offence constituted by entering or being in a dwelling/​premises/​place with intent to commit an offence (in Queensland an indictable offence); • an offence constituted by entering or being in a dwelling/​premises/​place and committing an offence (in Queensland an indictable offence); and The offences in Queensland and Western Australia are, however, structured differently in a number of ways. The Western Australian offences require a lack of consent to be in the dwelling or other premises; the Queensland offences do not. The Queensland offences include the concept of “breaking” and entering premises; the Western Australian offences do not. The Queensland Code creates different offences for dwellings (CCQ, s 419) and other premises (CCQ, s 421), while CCWA, s 401 creates two general offences that apply to all kinds of “places”. The CCWA also creates a much-​discussed and much-​criticised scheme for mandatory sentencing for burglary offences. Queensland The offences [7.260] 

Section 419 of the CCQ creates housebreaking offences where a dwelling is involved:

(1) Any person who enters or is in the dwelling of another with intent to commit an indictable offence in the dwelling commits a crime.

Maximum penalty –​14 years imprisonment.

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• circumstances of aggravation that increase the severity of the offence.

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(2) If the offender enters the dwelling by means of any break, he or she is liable to imprisonment for life.



(3) If –​ (a) the offence is committed in the night; or (b) the offender –​

(i) uses or threatens to use actual violence; or



(ii) is or pretends to be armed with a dangerous or offensive weapon, instrument or noxious substance; or



(iii) is in company with 1 or more persons; or



(iv) damages, or threatens or attempts to damage, any property; the offender is liable to imprisonment for life.



(4) Any person who enters or is in the dwelling of another and commits an indictable offence in the dwelling commits a crime. Maximum penalty –​imprisonment for life.

Section  421 of the CCQ creates offences where a premises other than a dwelling is involved. (1) Any person who enters or is in any premises with intent to commit an indictable offence in the premises commits a crime. Maximum penalty –​10 years imprisonment. (2) Any person who enters or is in any premises and commits an indictable offence in the premises commits a crime. Maximum penalty –​14 years imprisonment. (3) If the offender gains entry to the premises by any break and commits an indictable offence in the premises, he or she is liable to imprisonment for life.

Summary convictions are provided for in CCQ, ss  552BA, 552BB and 552H. Definitions

  Sections 418 and 1 of the CCQ provide definitions. “Dwelling” is defined in s 1 to include: [7.270]

any building or structure, or part of a building or structure, which is for the time being kept by the owner or occupier for the residence therein of himself or herself, his or her family, or servants, or any of them, and it is immaterial that it is from time to time uninhabited. A building or structure adjacent to, and occupied with, a dwelling is deemed to be part of the dwelling if there is a communication between such building or structure and the dwelling, either immediate or by means of a covered and enclosed passage leading from the one to the other, but not otherwise.

“Premises” is defined in CCQ, s 418(4) to include:

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(a) a building or structure and a part of a building or structure other than a dwelling; and (b) a tent, caravan, or vehicle; and

(c) any similar place.

A person “enters” a dwelling or premises as soon as any part of their body, or any part of any instrument they are using, is within the dwelling or premises: CCQ, s 418(2). Section 1 defines “night” to be the hours between 9 pm and 6 am. Break [7.280] 

“Break” is defined in s 418(1) as breaking any part, external or internal, of a dwelling or premises or opening, by unlocking, pulling, pushing, lifting or any other means, any door, window, shutter, cellar, flap, or other thing, intended to close or cover an opening in a dwelling or premises or an opening between parts of the dwelling or premises. A person who gains entry by threat, artifice or collusion is said to break and enter the dwelling or premises: CCQ, s 418(3). Opening a window or door that is completely closed or fastened amounts to breaking. However, opening a window or door wider when it is already open has been held not to be a “break”:  Halley v The Crown (1938) 40 WALR 105; Galea v The Queen (1989) 46 A Crim R 158. Lack of consent not required

Lack of consent to enter or be in the dwelling or premises is not an element of the Queensland offences. In 1988, the Court of Appeal in R v Williams [1988] 1 Qd R 289 (R v Williams) held absence of consent was required, but that case was rejected by the same court in 1996 in R v Rigney (1996) 86 A Crim R 9 (R v Rigney). In R v Williams, the accused entered a house late at night and, according to the prosecution, assaulted a woman in the house and stole a torch. Williams was charged under CCQ, s 419(1) with breaking into a dwelling at night with intent to commit an assault.The accused claimed that he had permission to enter the house, and on his behalf an argument was put that, although there was no express requirement in s 419 to prove a lack of consent, the requirement was a necessary implication in the provision. The Court of Appeal looked at surrounding provisions and said that s 419 should be interpreted in line with that Act. It was held (at 294, 300-​301, 305-​306) that lack of consent to breaking (and entering) was a “necessary element” of the offence. Eight years later, in R v Rigney, the Court of Appeal reversed this position. There, the accused were charged under CCQ, s 420 (since repealed) with entering a dwelling of another with intent to assault. The court (at 12-​13, 16) declined to follow R v Williams.

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[7.290] 

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There was no ambiguity in the words of the provision and reading the plain meaning of the words in their context led to no absurdity. Therefore, a plain reading was to be preferred and the lack of consent was not an element of the offence. R v Rigney was relied on in R v Troop [2009] QCA 176. In R v Bishop [2010] QCA 375, the Queensland Court of Appeal made comments (at [81]-​[82]) based on the approach taken in R v Williams. However, the comments were in passing and no actual reference was made to either R v Williams or R v Rigney; therefore, the comments cannot be taken to be a rejection of the approach in R v Rigney. Thus, in the Queensland offences of burglary and housebreaking, there is only one fault element and that is located in the “internal” or subsidiary offence. That the accused broke, entered or was in the dwelling or premises constitute the circumstances of the offence but create no fault element. Therefore, where a person enters or is in a premises (or the dwelling of another) with an intention to commit an indictable offence that person may be criminally liable for an intention alone.6 Western Australia The offences [7.300] 

Section 401 of the CCWA creates two general burglary offences:



(1) A person who enters or is in the place of another person, without that other person’s consent, with intent to commit an offence in that place is guilty of a crime and is liable –​



(a) if the offence is an aggravated home burglary, to imprisonment for 20 years;



(b) if the offence is not a home burglary but is committed in circumstances of aggravation, to imprisonment for 20 years; or



(c) if the offence is a home burglary not committed in circumstances of aggravation, to imprisonment for 18 years; or



(d) in any other case, to imprisonment for 14 years.

Summary conviction penalties are provided for. In relation to an offence under paras (a), (ba) or (b), generally, imprisonment for 3 years and a fine of $36,000; in relation to an offence under para (c), imprisonment for 2 years and a fine of $24,000.

6

J Devereux and M Blake, Kenny Criminal Law in Queensland and Western Australia (9th ed, LexisNexis Butterworths, Sydney, 2016) p 392.

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Section 401(2) provides: A person who commits an offence in the place of another person, when in that place without that other person’s consent, is guilty of a crime …

General and summary conviction penalties are the same as for the offences under s 401(1). However, if the offence committed in the place is an offence against property and the value of the property is more than $50,000, the offence is not to be dealt with summarily: CCWA, s 401(3). Definitions [7.310] 

Section 400 of the CCWA provides definitions. A person “enters or is in” a place as soon as any part of the person’s body or anything in the person’s possession or under the person’s control is in the place:  CCWA, s 400(2). “Place” means a “building, structure, tent, or conveyance, or a part of a building, structure, tent, or conveyance” and includes a conveyance that at the time of an offence was immovable or a place that was from time to time uninhabited or empty of property: CCWA, s 400(1). That a place is a place “of another” does not appear to be limited to legal concepts of ownership or property rights in the place but may be a matter of fact, for example, a place may be a person’s home: R v Walker [2001] WADC 299. Without consent

Unlike in Queensland, it is clear in Western Australia that the prosecution is required to prove the accused entered or was in the place “without consent”. Consent need not have been given expressly; the owner or occupier of the place may have given implied consent. Moreover, consent may be revoked. Thus, for the purposes of CCWA, s 401, where an accused enters a place with consent, if the consent is revoked, then the accused is in the place without consent. The question has arisen whether, if an accused had permission to enter a place for a particular purpose, they were nevertheless there “without consent” if they entered for a purpose that was inconsistent with that permission. In Barker v The Queen (1983) 153 CLR 338, the accused’s neighbour went away on holidays and, so that the accused could keep an eye on the neighbour’s house, the neighbour told the accused where to find a key to the house. The accused entered his neighbour’s house to steal furniture and was convicted of burglary under Crimes Act 1958, s 76. It was found that he entered the house as a trespasser (that is, without his neighbour’s consent) with intent to steal. It was argued on the accused’s behalf that it was only when he acted to take the furniture that he became a trespasser; he did not enter the house as a trespasser. If the accused were said to be a trespasser when he entered, then every shoplifter, it was argued, would be a burglar rather than a thief. The argument was

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[7.320] 

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rejected and the accused was held to have entered as a trespasser –​that is, without the authority of the owner. Mason J said (at 346): [T]‌he common law principle [is] that a person who enters premises for a purpose alien to the terms of a licence given to him to enter the premises enters as a trespasser. It is a matter of determining the scope of the authority to enter, which the licence or invitation confers. If a person enters for a purpose outside the scope of the authority then he stands in no better position than a person who enters with no authority at all. His entry is unrelated to the authority.

In response to the argument that this means all shoplifters are burglars, Mason J remained undecided. He suggested that that may in fact be the case and that the difference in the severity between burglary and stealing should be reflected in the penalty imposed. Alternatively, he suggested (at 347-​348) that the implied authority granted by a shopkeeper to the general public to enter a shop is so general that it can be said that a person may enter with authority and an intention to steal (which in any case would be very difficult to prove) and that their intention to steal does not vitiate this permission. Queensland and Western Australia [7.330]  The

following principles apply to burglary/​ housebreaking offences in Queensland and Western Australia. Intent to commit an offence [7.340] 

In both jurisdictions, burglary is committed where there is an intention to commit an indictable offence (Queensland) or an offence (Western Australia) if the offender enters or is in a dwelling/​premises/​place with that intention. If the prosecution seeks to prove this kind of burglary, there is no need to prove the actual commission of an offence:  CCQ, s 419(1); CCWA, s 401(1). It has been held that, to establish the intention required in this kind of burglary, the prosecution may rely on the intent formed fleetingly immediately before committing an actual offence: Potter v The Queen (1981) 4 A Crim R 305. Commits an offence [7.350] 

The offences created by CCQ, ss  419(4) and 421(2); CCWA, s 401(2) require the accused to have actually committed an offence whilst in another’s dwelling/​premises/​place.The prosecution needs to identify which offence is alleged. For example, if it is alleged that the accused assaulted a person while in the place, the elements of assault need to be proved. Further, the accused may raise a defence to the subsidiary offence which, if it is

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successful, means that the accused has not committed an offence in the dwelling/​premises/​place and burglary cannot be established:  King v The Queen (2003) 215 CLR 150. Armed and in company [7.360] 

In both jurisdictions there are more serious forms of the offence: see the provisions set out at [7.260] and [7.300]. In both Codes, the penalty for burglary increases if the offender was armed with a dangerous or offensive weapon or pretended to be so armed, or if they were in company with one or more persons. Principles concerning being armed and in company discussed above in relation to robbery are relevant for burglary also. Mandatory minimum sentences: Western Australia In 1996, in response to public outcry about “home invasions”, a scheme of mandatory minimum penalties was enacted for burglary in Western Australia. The scheme was modified in 2015 to increase some minimum sentences. Through the operation of CCWA, ss 1, 401A, 401B and 401(4), a mandatory sentence is imposed when an offence has been committed under s 401(1) or 401(2), which is a home burglary (defined in s 1), and the offender is a “repeat offender”. A “repeat offender” is defined in s 401B as a person who has been convicted twice before under s 401(1) or (2) of a home burglary. The mandatory minimum sentence is two years’ imprisonment or, for a youth, 12  months detention in an institution for juveniles. Section 46 (5a) of the Young Offenders Act 1994 (WA) excludes the operation of mandatory minimum sentencing laws where the defendant is a young person, but WACC, s 401(4) excludes the operation of s 46(5a) for this mandatory sentencing scheme related to burglary. However, WACC, ss 401A, 401B and 401(4) do not exclude the operation of Young Offenders Act 1994 (WA), s 189, which provides that, in some circumstances, a young person’s conviction “is not be regarded as a conviction”: P (A Child) v The Queen (1997) 94 A Crim R 593; D v Edgar [2019] WASC 183. The original Western Australian sentencing scheme (amended in 2015) was introduced shortly after a similar, though more broad-​ranging, scheme was enacted in the Northern Territory. Both schemes were part of a trend in the 1990s to reintroduce mandatory minimum sentences in a number of jurisdictions, including the United Kingdom and the United States. The Western Australian scheme (along with others) attracted enormous public

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[7.370] 

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and academic discussion and criticism.7 The justifications for the scheme were deterrence and its symbolic value –​the idea that the public could be reassured that something was being done about so-​called home invasions. Criticism of such schemes centres on: (a) research that suggests fixed sentences do not in fact deter people from committing this kind of property crime; (b) arguments that sentences fixed by the legislative arm of government interfere with the judicial function of the courts in applying legal rules to particular facts; (c) arguments that, although mandatory sentences ensure the same sentence is imposed, they lead, in reality, to inequality before the law. Because mandatory minimum sentences require the imposition of a sentence regardless of the circumstances of the offence or the offender some people will be punished less severely than others; (d) observations that the imposition of inflexible sentences can lead to compensatory strategies being employed in other areas of the criminal justice system. For example, the imposition of what is perceived to be an unfair sentence may affect the decision whether or not to prosecute a particular offence in the first place.This is detrimental to the integrity of democratic institutions; and (e) arguments that mandatory sentences impact disproportionately on some vulnerable groups in society, namely those who are Aboriginal, young or poor.8

Fraud [7.380] 

Both Codes include numerous fraud offences. For example, the following offences appear in CCQ, Pt 6, Chs 37 and 40: 7

See, for example, J Bessant, “Australia’s Mandatory Sentencing Laws, Ethnicity and Human Rights” (2001) 8 International Journal on Minority and Group Rights 369; N Morgan, “Going Overboard? Debates and Developments in Mandatory Sentencing, June 2000 to June 2002” (2002) 26 Criminal Law Journal 293; K Warner, “Mandatory Sentencing and the Role of the Academic” (2007) 18 Criminal Law Forum 321.

8

See also K Warner, “Mandatory Sentencing and the Role of the Academic” (2007) 18 Criminal Law Forum 321. See, for example, J Bessant, “Australia’s Mandatory Sentencing Laws, Ethnicity and Human Rights” (2001) 8 International Journal on Minority and Group Rights 369; N Morgan, “Going Overboard? Debates and Developments in Mandatory Sentencing, June 2000 to June 2002” (2002) 26 Criminal Law Journal 293. See also M Flynn, “International Law, Australian Criminal Law and Mandatory Sentencing: The Claims, the Reality and the Possibilities” (2000) 24 Criminal Law Journal 184; A Mason, “Mandatory Sentencing: Implications for Judicial Independence” (2001) 7 Australian Journal of Human Rights 21; H Tubex, “Mandatory Sentencing Leads to Unjust, Unfair Outcomes –​It Doesn’t Make Us Safe”, in The Conversation (5 January 2016).

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• fraudulent concealment of certain testamentary instruments or other documents: s 399; • Obtaining or dealing with identification information (identity fraud) (s408D); • Computer hacking (s408E); • obtaining property by passing valueless cheques: s 427A; • fraudulent falsification of records: s 430; and • false accounting by a public officer: s 431. In Western Australia, the fraud offences include the following, which appear in CCWA, Pt VI, Ch XXXVII: • concealing wills: s 380; • fraudulently dealing with minerals in mines: s 385; • fraudulent disposition of mortgaged goods: s 389; and In addition to the fraud offences that deal with particular fact situations, such as those listed, both Codes create a general offence of fraud:  CCQ, s 408C; CCWA, s 409. Fraud is akin to stealing but is more general in nature.The general offences of fraud concern dishonest dealings (though “dishonesty” is not an element of fraud in the CCWA) in respect of another person’s property interests, but in a broader sense than does stealing. Fraud captures some behaviours that fall outside the scope of stealing, such as the appropriation of services, temporary deprivation of property interests and dishonesty which results in the full ownership of property being transferred to the accused. However, because of its general nature, fraud is in some respects difficult to define.This chapter examines the general offence of fraud in each of the Codes. The offences Queensland [7.390] 

The general offence of fraud is created in CCQ, s 408C(1), which

provides: A person who dishonestly –​

(a) applies to his or her own use or to the use of any person –​ (i) property belonging to another; or (ii) property belonging to the person, or which is in the person’s possession, either solely or jointly with another person, subject to a trust, direction or condition or on account of any other person; or

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• fraudulent appropriation of electricity: s 390.

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(b) obtains property from any person; or

(c) induces any person to deliver property to any person; or

(d) gains a benefit or advantage, pecuniary or otherwise, for any person; or

(e) causes a detriment, pecuniary or otherwise, to any person; or



(f) induces any person to do any act which the person is lawfully entitled to abstain from doing; or



(g) induces any person to abstain from doing any act which that person is lawfully entitled to do; or

(h) makes off, knowing that payment on the spot is required or expected for any property lawfully supplied or returned or for any service lawfully provided, without having paid and with intent to avoid payment; commits the crime of fraud.

The maximum penalty for fraud is five years imprisonment, which increases to 14  years in certain circumstances  –​for example, if the offender is the director of a company and the victim is the company, or if the yield to the offender or detriment to the victim amounts to $30,000 or more and less than $100,000. If the yield to the offender or detriment to the victim is $100,000 or more or the offender carries on the business of committing the offence, the maximum penalty is 20  years. Summary convictions are provided for in CCQ, ss 552BA, 552BB and 552H. Western Australia [7.400] 

The general offence of fraud in Western Australia is created in CCWA, s 409(1), which provides: Any person who, with intent to defraud, by deceit or any fraudulent means –​

(a) obtains property from any person; or

(b) induces any person to deliver property to another person; or

(c) gains a benefit, pecuniary or otherwise, for any person; or

(d) causes a detriment, pecuniary or otherwise, to any person; or

(e) induces any person to do any act that the person is lawfully entitled to abstain from doing; or



(f) induces any person to abstain from doing any act that the person is lawfully entitled to do, is guilty of a crime …

The maximum penalty for fraud is seven years imprisonment, which increases to 10 years if the person deceived is of or over the age of 60 years: CCWA, s  409(1)(g). Summary conviction is provided for in CCWA, s 409(1) and (2).

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The mental element of fraud [7.410] 

The mental element of fraud is formulated differently in each of the Codes. Fraud in the CCQ requires the legal concept of “dishonesty”. Fraud in the CCWA, on the other hand, although reformulated as a whole in 1990, has retained the older concept of “intent to defraud” as its mental element. There is, therefore, a different legal concept underpinning the two offences; however, there remains considerable overlap in the judicial interpretation of the elements in each jurisdiction (see Perrin v R [2017] QCA 194 at [76]). Dishonesty: Queensland [7.420] 

“Dishonesty” is not defined in the CCQ; however, s 408C(3)(b) provides that a person’s conduct in relation to property may be dishonest, even though:

(i) he or she is willing to pay for the property; or

(ii) he or she intends to afterwards restore the property or to make restitution for the property or to afterwards fulfil his or her obligations or to make good any detriment; or (iii) an owner or other person consents to doing any act or to making any omission; or

It is clear that the “finders keepers” rule that is applicable to stealing is also applicable to fraud. A  person’s conduct is not dishonest, generally, if they did not know whose property they were dealing with and believed on reasonable grounds that the owner could not reasonably be discovered: CCQ, s 408C(3)(c). The question arises, which perspective should be taken when determining whether the accused was dishonest. Should the element require only an assessment of whether the conduct was dishonest according to the standards of ordinary honest people? Or should it require an assessment, in addition to this, of whether the accused realised that what she or he was doing was dishonest by those standards? That is, should there be an objective inquiry only or an objective and subjective inquiry (about the accused’s awareness of the standards of ordinary honest people)? This question has a long and complex judicial history but was settled by the Queensland Court of Appeal in R v Dillon; Ex parte Attorney General (Qld) [2015] QCA 155 (R v Dillon). It is clear now that “dishonesty” in CCQ, s 408C is to be determined by inquiring only whether what the accused did was dishonest by the standards of ordinary honest people.

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(iv) a mistake is made by another person.

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In R v Dillon, the respondent was charged with 11 counts of fraud under CCQ, s 408C.The prosecution case was that he was a director and shareholder of companies which sold and rented used forklifts. He obtained money from a finance company on the basis of a representation that his companies had purchased forklift machines.This was dishonest, the prosecution alleged, because at the time of each finance company payment, the forklifts had not been purchased and he gave the finance company false invoices. The trial judge applied the law on dishonesty in the cases of R v Laurie (1986) 23 A Crim R 219 (R v Laurie) and R v White (2002) 135 A Crim R 346. These cases had adopted the same law as that in the United Kingdom case of R v Ghosh [1982] QB 1053 (R v Ghosh). R v Ghosh required the two-​ pronged inquiry: both whether the conduct of the accused was dishonest by ordinary standards and whether the accused was aware that her or his conduct transgressed those standards. After R v Dillon was decided at trial the Queensland Attorney General, under CCQ, s 668A, referred a question of law to the Court of Appeal (emphasis in the original): To satisfy the element of dishonesty does the Crown have to prove that:

(a) what the accused person did was dishonest by the standards of ordinary honest people; and

(b) the accused person must have realised that what he or she was doing was dishonest by those standards?

The Court of Appeal considered the conflicting tests of dishonesty, one represented by R v Ghosh, the other by Peters v The Queen (1998) 192 CLR 493 (Peters v The Queen), a case dealing with the offence of conspiracy to defraud under Crimes Act 1914 (Cth), ss 86 and 86A. In Peters v The Queen, the High Court held that, where “dishonesty” needed to be considered by a jury, it should be determined by reference to the standards of ordinary, decent people. The Court in R v Dillon recognised that neither of these authorities are determinative of the meaning of “dishonesty” in CCQ, s 408C but also recognised that the meaning of the term under that section was “well settled” in Queensland since 1987, when R v Laurie was decided in accordance with the test in R v Ghosh. Nevertheless, the Court in R v Dillon; Ex parte Attorney General (Qld) determined that the solely objective test was the appropriate interpretation. This, the Court said, was the ordinary meaning of “dishonesty” and (at [47]) there “is nothing in the terms of s 408C which import that … the accused person must obtain the property without a belief that he or she has the legal right to deprive others of it”. Thus, the Court of Appeal departed from its own past interpretation of s 408C and settled the question in a way that accords with the approach in Peters v The Queen. Note also that, in addition to the “ordinary meaning”

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justification, the Court reasoned that this (objective) meaning of dishonesty leaves claims of subjective honesty on the part of an accused to be dealt with under a different section of the CCQ –​in a consideration of the excuse in s 22(2), an honest claim of right with respect to property. At [48], the Court of Appeal concluded as follows: Despite the previously settled approach in Queensland since 1987, Queensland Courts must now construe the term “dishonesty” in s  408C as requiring the prosecution to prove only that what the accused person did was dishonest by the standards of ordinary honest people. To secure a conviction, the prosecution need not prove that the accused person must have realised that what he or she was doing was dishonest by those standards. This construction works harmoniously with the defence provisions of the Criminal Code, particularly s 22(2), so that, where there is evidence that the accused person had an honest belief that he or she was entitled to act as he or she did, to secure a conviction the prosecution must disprove the honest belief beyond reasonable doubt.

Intent to defraud: Western Australia [7.430] 

The mental element of fraud in Western Australia is “intent to defraud”. “Dishonesty” is not an element. In Peters v The Queen, the case referred to above, Toohey and Gaudron JJ were at pains to make this point with respect to the offence at issue in that case. Although dishonesty is inherent in fraud cases as a matter of fact, and is implicit in the legal concept of “intent to defraud”, Toohey and Gaudron  JJ point out that it should not be isolated as a legal element. Perhaps their approach was in order to by-​pass the complex, and arguably confusing, question about whether “dishonesty” is a purely subjective or a subjective/​objective concept. In any case, as the following analysis shows, there is considerable overlap in the way “dishonesty” and “intent to defraud” should be approached: see Macleod v The Queen (2003) 214 CLR 230; [2003] HCA 24 at [46].

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R v Perrin [2017] QCA 194 and R v Orchard [2018] QCA 58 (R v Orchard) apply the decision in R v Dillon. Note the discussion in R v Orchard, at [23]-​ [43] on the relationship between the requirement of “dishonesty” in CCQ, s 408C and the requirement of an “intent to defraud” in CCQ, s 22(2) [see Chapter 13]. With respect to the element of dishonesty a jury must decide what an accused person knew, believed, intended and consider whether this was dishonest by the standards of ordinary decent people. Section 22(2) provides an excuse in some circumstances where an accused believed they were entitled to do as they did with respect to property the subject of the charge against them and without an intent to defraud. Proof of “dishonesty” in s 408C will generally eliminate the possibility of an absence of an intent to defraud in s 22(2): Perrin v R [2017] QCA 194 at [76], [90], [246].

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There is no definition of “intent to defraud” in the CCWA, although s 409(3) makes it clear that an intent to give value for property does not preclude a finding that there was an intent to defraud. In Bolitho v Western Australia (2007) 34 WAR 215 (Bolitho v Western Australia), the Western Australian Court of Appeal held that “intent to defraud” in CCWA, s 409(1) has the same meaning as it does at common law. It was said (at [129]-​[130], [154]) that a parliamentary intention to adopt the common law meaning could be discerned in the enactment of s  409 in 1990. This means that the common law principles defining “intent to defraud” are relevant. The starting point at common law for the meaning of the phrase is Re London and Globe Finance Corp Ltd [1903] 1 Ch 728. There, the House of Lords said (at 732-​773): “To defraud is to deprive: it is by deceit to induce a man to act to his injury … to defraud is by deceit to induce a course of action.” Moreover, to deceive is to induce a person to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. Thus, an intention to deprive by deceit is to defraud. What if a person intends to deprive another in a dishonest way but has no intention to practise deceit –​in other words, they are dishonest but do not attempt to induce a false belief in anyone? The House of Lords considered this question in the case of R v Scott [1975] AC 819, where the accused sought to copy films for distribution. He persuaded employees of a cinema to take the films out of the cinema temporarily so they could be copied and then return them, without the knowledge of the owners of the business. There was no deceit because the accused made no attempt to induce the owners to believe anything that was untrue. It was held (at 839) that the accused did intend to defraud the victims even though there was no deceit. It was sufficient for the accused to have intended to use the dishonest means to carry out his actions. The High Court discussed the meaning of “intent to defraud” in Peters v The Queen, the case referred to above in relation to “dishonesty” in CCQ, s 408C.There, the accused was charged under s 86A of thewith conspiracy to defraud the Commonwealth by conspiring to deprive the Commonwealth Commissioner of Taxation of tax revenue. The offence required proof of an “intent to defraud” and the High Court concluded that this phrase carried the same meaning as at common law. Toohey and Gaudron  JJ rejected the argument of the appellant, which was based on the assumption that “dishonesty” was an element of the offence. Their Honours considered that the proper approach to the meaning of an “intent to defraud” does not involve an inquiry about the meaning of “dishonesty” because dishonesty is not an element of the offence. While dishonesty is embedded in an intention to defraud, it is misleading to assume that it is a distinct element

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of this offence. Rather, an intent to defraud should be seen to comprise two aspects: first, an intention to deceive or use other dishonest means; and, second, an intent to create a situation in which one person deprives another of something knowing that they have no right to cause such deprivation. Both of these aspects inherently concern dishonesty, but neither isolate the concept to be defined. Their Honours said (at 504): In a case in which it is necessary for a jury to decide whether an act is dishonest, the proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest.

This approach was adopted by the Western Australian Court of Appeal in Mathews v The Queen (2001) 24 WAR 438; [2001] WASCA 264 at [18]-​[19]. Thus, although in Western Australia the concept is “intent to defraud”, and in Queensland it is “dishonesty”, both concepts probably converge in the approach of Toohey and Gaudron JJ in Peters: see also Kirby J in Peters v The Queen at 542. Dishonesty or intent to defraud manifested through conduct or silence

The dishonesty (Queensland) or deceit or other dishonest means in an intention to defraud (Western Australia) need not be express. The concepts can be manifested in the conduct of the accused: R v Jones [1898] 1 QB 119. However, silence on the part of the accused does not necessarily amount to deceit or dishonesty. In Nelson v The Queen [1987] WAR 57, the accused made an insurance claim on a stolen car. She indicated on the forms that the car had been stolen by a “person unknown”. This was a true statement at the time she filled in the form. However, after this, and before she had collected her insurance money, she learned who had stolen her car –​ it was her boyfriend. When she went to sign a release for the money from the insurance company, she did not inform the company that she now knew who had taken the car. The Court of Appeal held that, in the circumstances, her silence did not amount to deceit. Dishonesty or intent to defraud in relation to economic interests only [7.450] 

In both Queensland and Western Australia it is clear that a victim of fraud need not have been deprived of a substantial interest; it is sufficient that an accused dishonestly put a victim’s relevant interest at risk: R v Anderson [2000] QCA 257; Lewis v The Queen (1998) 20 WAR 1. But is fraud limited to violations of a victim’s economic interests? Is the

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[7.440] 

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offence of fraud committed if, for example, a person is dishonest towards, or intends to deceive another person about, a personal relationship? Or must the accused have intended to deprive the victim in a way that would affect the victim’s economic interests? There are no limitations on the face of either the Queensland or Western Australian provisions. Although CCQ, s  408C(1)(a)-​(c), (h); CCWA, s  409(1)(a), (b) refer to property, the other possible outcomes of an accused’s behaviour can, in their terms, be any kind of advantage or detriment. Moreover, there is no expressed limitation on the mental element of the offence such that the accused needs to have been concerned with economic interests. Interestingly, however, the Western Australian Court of Criminal Appeal in Bolitho v Western Australia held that intention to defraud in CCWA, s 409 is, with one exception, limited in some way to violations of the economic interests of the victim. In other words, the fraud offence, including the mental element of fraud, is, with one exception, an offence that pertains to property. It may be that the same approach can be taken to the mental element of “dishonesty” in CCQ, s 408C. As discussed, the Western Australian provision requires an “intent to defraud” and the court’s reasoning in Bolitho v Western Australia relies on a conclusion that the meaning of “intent to defraud” carries the common law meaning of that term. Nevertheless, since, as explained, there is considerable overlap in the way “dishonesty” and “intent to defraud” have been approached, it may well be that the approach taken in Bolitho v Western Australia can also be taken in Queensland The court in Bolitho v Western Australia limited an “intent to defraud” in the following way. The accused was convicted of fraud in that she induced an elderly woman to do an act the elderly woman was lawfully entitled to abstain from doing –​namely, submit to medical treatment.The accused held herself out to be an orthopedic surgeon, which she was not, and persuaded the elderly woman to fly from Melbourne for surgery on her shoulder. The counts of fraud related to five injections the woman received in her shoulder. The accused made no request for payment. The Court of Appeal overturned the conviction because there was no intention to defraud within the meaning of CCWA, s  409. McLure  J, with whom Buss  JA agreed, reasoned as follows. The element of “intent to defraud” in CCWA, s 409 is distinct from the conduct element of the offence, which includes the possible outcomes listed in paras (a)-​(f) in that section. Further, there was a discernible legislative intention that the common law meaning of the phrase be adopted. McLure J reasoned that therefore the list of outcomes in pars (a)-​(f) were limited in their scope by the meaning of an “intent to defraud”, rather than the concept of an intent to defraud being determined

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by the apparently very broad range of outcomes listed in those paragraphs. After an extensive analysis of the common law, as well as case law from the Code jurisdictions, McLure J concluded that, with one exception, an “intent to defraud” is limited by reference to the victim’s economic interests in a broad sense. Her honour said (at [152]) that there will be an intention to defraud in five instances –​that is, where there is an intention that the victim: (a) suffer direct economic loss; (b) suffer economic “detriment” by being deprived of property or services that have economic value; (c) be at risk of suffering economic loss or detriment; (d) be deprived of an opportunity to make economic gain; or (e) be deprived of an opportunity to prevent economic loss or detriment. The one exception, where there may be an intent to defraud although there is no intent to cause any of these kinds of economic deprivations, is where an accused has an intention to induce a person to breach their public duty. An example of this would be where a victim is induced to breach government regulations:  see Corruption and Crime Commission v Moodie [2009] WASCA 72 (Corruption and Crime Commission v Moodie); Welham v DPP [1961] AC 103. Bolitho v Western Australia was followed in Brown v Deveroux (2008) 192 A Crim R 190; [2008] WASC 299 and Corruption and Crime Commission v Moodie.

[7.460] 

The accused’s dishonesty (Queensland) or intent to defraud (Western Australia) must have been manifested in conduct that resulted in at least one of the outcomes listed in CCQ, s 408C(1); CCWA, s 409(1). In Western Australia v Roberts [2005] WASCA 37, Templeman J held, at [33], that “if the appellant did not honestly believe she was entitled to use her husband’s money as she did, she could not be convicted of fraud unless he was prejudiced in some way by her conduct. Paragraphs (b)-​(g) of CCQ, s  408C(1) are, in substance, the same as the outcomes listed in CCWA, s 409(1). However, paragraphs (a) and (h) of CCQ, s 408C(1) appear only in the CCQ. These lists of outcomes include specific events –​for example, obtaining property from any person (CCQ, s 408C(1)(b); CCWA, s 409(1) (a)) or inducing a person to deliver property to another: CCQ, s 408C(1) (c); CCWA, s  409(1)(b). Other paragraphs are in very broad terms  –​for

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The conduct element of fraud

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example, inducing a person to do any act that the person is lawfully entitled to abstain from doing: CCQ, s 408C(1)(f); CCWA, s 409(1)(e). The definition of “property” in CCQ, s 1 is extended in CCQ, s 408C(3) (a) to include “credit, service, any benefit or advantage, anything evidencing a right to incur a debt or to recover or receive a benefit, and releases of obligations”. In addition, CCQ, s 408C(3)(f) provides that: if a person obtains property from any person or induces any person to deliver property to any person it is immaterial in either case whether the owner passes or intends to pass ownership in the property or whether he or she intends to pass ownership in the property to any person.

The same effect is achieved in Western Australia by the breadth of the range of outcomes listed in CCWA, s 409(1).This means that a conviction for fraud is not precluded because ownership of property has passed to the accused. It was explained above (at [7.80]) that the offence of stealing could not be established if ownership of property passed to the accused under a mistaken belief because a person cannot steal their own interest in property: Ilich v The Queen (1987) 26 A Crim R 232. Fraud is not subject to this rule. Paragraph (a) of CCWA, s 409(1) deals with the situation in which the accused “obtains” property. “Obtain” is defined in CCWA, s 1 to include obtaining possession (not merely ownership) and occupying land. “Obtain” is defined in CCQ, s 408C(3)(e) to include “to get, gain, receive or acquire in any way”. CCQ, s 408C(1)(d) and CCWA, s 409(1)(c) provide that the outcome of the dishonesty or fraudulent means can be a “benefit or advantage” (Qld) or “benefit” (WA) for any person. The scope of the concept of a “benefit” is wide but not without limit. In R v Saba [2013] QCA 275, the accused had dishonestly altered ASIC records so that they showed him as the sole director and shareholder of two companies. The Court of Appeal reasoned as follows (at [47]: Reduced to its core, the case submitted to the jury as to the “benefit or advantage” was that by submitting or causing the relevant forms to be electronically submitted … the appellant gained the benefit or advantage comprising the opportunity that people might make the assumption in relation to dealings with each company that he had been duly appointed and had authority to exercise the powers and perform the duties customarily exercised or performed by a director.

In the context where there was no “particular transaction in view which the change would directly affect”, the Court rejected the argument that this amounted to a “benefit or advantage” within s 408C(1)(d). The change in the record “was not itself a benefit under s 408C … It was at most a step along the way towards gaining some unidentified advantage” (at [50]).

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Fraud will only be established if there is a causal relationship between the dishonesty or intent to defraud and the property obtained by the accused, the detriment caused to the victim or one of the other outcomes listed in CCQ, s 408C(1); CCWA, s 409(1). That there is dishonesty or an intent to defraud and one of the detriments or advantages is insufficient.This principle is clear from the terms of CCQ, s 408C; CCWA, s 409 and is affirmed in Clemesha v The Queen [1978] WAR 193. There, the accused contracted to hire a plate compactor from a construction equipment hire company. In filling in forms for the hire agreement, the accused wrote a false name and address. When the compactor was not returned after the hire period it was discovered that the address did not exist and the compactor was located in the accused’s locked garage.The accused’s conviction was overturned by the Court of Appeal because it was found, as a matter of fact, that his dishonest representation about his name and address did not induce the proprietor of the company to lend the machine. The proprietor had allowed the accused to take the compactor because he, the accused, had contracted to pay the hire fee. The same point (that there must be a causal relationship between the dishonesty or intention to defraud and the outcome of the conduct) is made in passing in Hunter v The State of Western Australia [2014] WASCA 184 at [100]-​[101] (Hunter v The State of Western Australia). However, note a further, distinct point made in Hunter v The State of Western Australia at [54], [57]-​[63]. An accused may perpetuate dishonesty or deception on one person, with the intention of depriving a different person. In that case, the accused perpetrated a deception on a client (by giving false bank details) with the intention of depriving his employer/​principal.

[7.470] 

Prosecutions for fraud arise in a very wide range of circumstances because of the general nature of the offence. Cases which provide illustrations of fact situations giving rise to fraud include: • Mathews v The Queen (2001) 24 WAR 438; [2001] WASCA 264: accused sought to withdraw money from an account in which there were insufficient funds; • Markarian v The Queen [2001] WASCA 393: accused told false stories to gain personal support and induced a number of elderly clients to give him money; • R v Anderson [2000] 2 Qd R 393: accused dishonestly disposed of goods which were security for mortgagors and creditors;

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Illustrative cases

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• R v Lenahan [2009] QCA 187:  accused contracted to buy and took possession of property without intention to pay; • R v Naidu [2008] QCA 130: accused befriended an elderly man and transferred his property pursuant to an enduring power of attorney. • R v Henderson [2014] QCA 12: The accused induced numerous complainants, through telephone communications, to transfer money for investment in sporting enterprises. The money was never invested or never invested for that purpose.

Damage to property [7.480] 

The Codes create a general offence of destroying or damaging property and many offences dealing with damage to specific kinds of property. The specific offences include damage to: • • • • • •

ships: CCQ, s 467; CCWA, s 449; railways: CCQ, ss 467 and 469(5); CCWA, s 451; aircraft: CCQ, ss 467 and 469(6); CCWA, ss 451A and 451B; mines: CCQ, s 471; CCWA, s 456; animals: CCQ, s 468; and communicating diseases to animals: CCQ, s 474; CCWA, s 459.

The general Code offences prohibiting destruction or damage to property are created in the following provisions: • wilful damage: CCQ, s 469; and • criminal damage: CCWA, s 444. This chapter focuses on these general Code offences with reference also to the offences involving damage by fire. The offences Queensland [7.490] 

Section 469 of the CCQ creates the misdemeanour of destroying or damaging “any property”. It provides: Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence which, unless otherwise stated, is a misdemeanour, and the person is liable, if no other punishment is provided, to imprisonment for 5 years.

Western Australia [7.500] 

Section  444 of the CCWA creates the crime of destroying or damaging “any property”. It provides:

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Any person who wilfully and unlawfully destroys or damages any property is guilty of a crime.

The maximum penalty is 10  years or, if the offence was committed in circumstances of racial aggravation, 14  years. Section  445 of the CCWA creates a lesser offence of damaging property. It provides: A person who unlawfully destroys or damages the property of another person without that other person’s consent is guilty of an offence and is liable to imprisonment for 2 years and a fine of $24 000.

The elements: Queensland and Western Australia [7.510] 

The offences in CCQ, s  469; CCWA, s  444 have the same elements –​that is, to wilfully, unlawfully, destroy or damage, any property. Wilfully [7.520] 

“Wilfully” destroy or damage is defined in CCWA, s  443. A person has this state of mind if they: • intend to destroy or damage the property; or

Thus, in Western Australia an accused need not have intended the damage that was caused –​they may have had an unrelated purpose. They need only have been subjectively reckless when they did the act that caused the damage. There is no definition of “wilfully” in the CCQ; however, the Queensland Court of Appeal has interpreted the term in the same way. The legislation in Western Australia adopted the approach taken in R v Lockwood; Ex parte Attorney-​General [1981] Qd R 209. There, the accused kicked and dented a car door without intending the damage. It was held that the accused acted “wilfully” if he intended the damage or if he was aware that the damage was likely but recklessly disregarded the risk and proceeded to do as he did. See also R v Joinbee [2013] QCA 246 at [14] per Philippedes J. The meaning of “likely” has been discussed: see R v T (1996) 91 A Crim R 152 (R v T).With what degree of certainty must the accused have foreseen the outcome that occurred? In R v T, the accused flicked a smouldering cigarette butt into a pile of papers and cardboard in a pizza shop, not intending to ignite the paper. On appeal, the three judges took different approaches with respect to the question of the meaning of “likely”. Fitzgerald P was of the opinion that “likely” means the accused foresaw the outcome as more probable than not. Without giving a definitive opinion, Mackenzie  J was

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• know or believe that the act or omission is likely to result in the destruction of or damage to the property.

266      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

of the same view. Pincus J, again without deciding, expressed the view that “likely” means foresight that there was a “substantial chance” the outcome would occur; a real and not remote chance, whether it is more or less than a 50 per cent chance. Unlawfully [7.530] 

The accused must have acted unlawfully. The term “unlawful acts” is defined in CCQ, s 458; CCWA, s 441. If an act is done without the consent of the person whose property has been injured, it is unlawful unless it is authorised, justified or excused. There may be lack of consent even if the accused was a part-​owner of the property: CCQ, s 458(3); CCWA, s 441(2). Ordinarily, if the accused is the sole owner of the property, their act that caused injury to the property will not be unlawful because it was not done without consent. However, if the act was done with intent to defraud any person (for example, in order to make a fraudulent insurance claim), then it is immaterial that it was not done without consent: CCQ, s  459(1); CCWA, s  442. In Queensland the onus of proof with respect to the question of the lack of consent is reversed where the property destroyed or damaged is a grave or other memorial in a cemetery, a war memorial or on a place of religious worship: CCQ, s 469(3). Both CCQ, s 458 and CCWA, s 441 contain an excuse. Thus, an act that causes injury to property is not unlawful if it is done in order to defend any person or property from injury which the accused believed, on reasonable grounds, to be imminent. Section  441(3) of the CCWA was amended in 2008. Apart from the requirement of belief as to the imminence of the threat, the structure of this defence is the same as the general defence of self-​ defence in CCWA, s 248. Destroys or damages [7.540] 

There are no general definitions of “destroys” or “damage” in the Codes. Section  1 of the CCWA defines the terms in relation to animate property  –​ that is, “destroys” means “kill”; “damage” includes “injure”. However, the Codes provide a definition of “damage” in relation to a document (CCQ) or record (CCWA): CCQ; CCWA, s 1. In R v Zischke [1983] 1 Qd R 240, it was held that damage means to render property imperfect or inoperative and that expenditure of money to restore the property is not required for damage to have occurred. Property [7.550]  The

accused must have destroyed or damaged “property”. “Property” is defined in s 1 of both Codes.

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Destroy or damage by fire [7.560] 

Both Codes make special provision for injuries to property caused by fire. In Queensland, CCQ, ss 461 and 463 create offences of arson. Section 461 provides:

(1) Any person who wilfully and unlawfully sets fires to any of the things following, that is to say –​

(a) a building or structure;



(b) a motor vehicle, train, aircraft or vessel;



(c) any stack of cultivated vegetable produce, or of mineral or vegetable fuel;



(d) a mine, or the workings, fittings, or appliances of a mine; is guilty of a crime, and is liable to imprisonment for life.

Section 463 creates a similar offence where an accused sets fire to crops and growing plants. The maximum penalty in that case is 14 years. In Western Australia, the penalty for criminal damage in CCWA, s 444 increases to life imprisonment if the property was destroyed or damaged by fire. In addition, CCWA, s 445A creates an offence where a person breaches the duty imposed by CCWA, s  444A. That section imposes a duty on a person who has charge of a source of ignition or a fire to take reasonable care and precautions. The maximum penalty for the offence in CCWA, s 445A is 15 years imprisonment.

[7.570]  The elements of the CCQ appear in italics; the elements of the CCWA appear in [brackets].

Stealing The elements of stealing are: 1

Steals

2

Anything capable of being stolen

“Steals” means: • Fraudulently • Takes • Anything capable of being stolen OR

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Elements toolbox

268      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

• Fraudulently • Converts • Anything capable of being stolen [Any property]

Robbery 1

Steals

2

At, or immediately before or immediately after the stealing

3

Uses or threatens to use actual violence [violence] to any person or property

4

In order to obtain the thing stolen or prevent or overcome resistance to its being stolen

Burglary/​housebreaking Queensland

1

A person enters or is in

2

The dwelling house of another

3.

(a) With intent to commit an indictable offence OR (b)  Commits an indictable offence

OR 1

A person enters or is in

2

Any premises

3.

(a) With intent to commit an indictable offence OR (b)  Commits an indictable offence in the premises

Western Australia

1

A person enters or is in

2

The place of another

3

Without that other person’s consent

4

With intent to commit an offence in the place

OR

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1

A person is in

2

The place of another

3

Without that other person’s consent

4

And commits an offence in the place.

Fraud Queensland

1

A person dishonestly

2

[causes any one or more of the outcomes listed in paragraphs (a) to (h) in CCQ, s 408C(1)]

Western Australia

1

A person with intent to defraud

2

By deceit or any fraudulent means:

3

[causes any one or more of the outcomes listed in paragraphs (a) to (f) in CCWA, s 409(1)]

1

Wilfully

2

Unlawfully

3

Destroys or damages

4

Any property

Guide to problem solving [7.580]  • Consider:

– Does any harm that has been done concern property?

– Have any property or rights in relation to property been interfered with, or has a person committed or intended any kind of offence while entering or being inside someone else’s place?

– If so, a property offence may have been committed.

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Damage to property

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• If property has been physically damaged or destroyed, consider the offence of wilful damage (CCQ) or criminal damage (CCWA). • If a person has intended to interfere with someone else’s property rights or interests, consider which kind of property is involved. If the property comes within the definitions of “property” in CCQ, ss 390, 1; CCWA, ss 370, 371(7), 1, the person may be guilty of stealing the property. If the property interest involved falls outside those definitions but the person’s conduct has caused a result that can be described more generally as an interference with an economic interest, then the person may be guilty of fraud. • If you are considering stealing, is there wrongdoing at the time the person actually took the property into their possession? If so, you should consider a taking-​stealing. Check that there is evidence that the person moving the property had one of the intentions in CCQ, s 391(2); CCWA, s 371(2) at the time they moved the property. If the property was already in the possession of the person when the wrongdoing occurred, then you should consider a conversion-​ stealing. Check that the person has dealt with the property in a way that is inconsistent with the right of the owner and that there is evidence at that time of one of the intentions in CCQ, s 391(2); CCWA, s 371(2). • If there has been a stealing, consider whether the offender threatened or inflicted violence on any person or property at the time of the stealing. If this violence was for the purpose of obtaining the thing or preventing or overcoming resistance to it being stolen, then they may be convicted of robbery. Consider whether the offender was armed or in company. • Has any person entered or were they in someone else’s house, building or other premises? If so, did that person inflict or intend to inflict a harm against any person or property which might amount to an indictable offence (CCQ) or an offence (CCWA)? If so, they may be guilty of burglary/​housebreaking. • For Western Australia, check whether the person entered or was in the place without the consent of the owner or occupier. Also for Western Australia, check whether the place was one ordinarily used for human habitation. If so, check whether the accused has any prior convictions for burglary and whether she or he may be subject to a mandatory minimum sentence. • If a person has done something dishonest or “sneaky” involving property, you should consider fraud. For Queensland, identify the knowledge, belief or intent on the person’s part that constitutes dishonesty. Consider whether this was dishonest by the standards of ordinary honest people. It is irrelevant whether the accused realised their conduct was dishonest according to those standards. Has the person acting dishonestly caused one of the results in CCQ, s 408C(1)(a)-​ (h)? For Western Australia, identify the knowledge, belief or intent that could constitute an intention to defraud. Is there an intention to deceive someone or be otherwise dishonest towards them as well as an intention to deprive someone of

CHAPTER  7  PROPERTY OFFENCES      271

something knowing they had no right to deprive them of it? If so, ask whether that “something” comes within the list of deprivations in Bolitho v Western Australia? Finally, determine whether the person used deceit or fraudulent means so that at least one of the things in CCWA, s 409(a)-​(f) has resulted? If so, it is likely the person is guilty of fraud. • If any property (within the definition in s 1 of the Codes) has been rendered inoperative or imperfect, then wilful damage (CCQ) or criminal damage (CCWA) may have been committed. Whoever caused the damage may be liable. Was the damage done by fire? If so, look at the arson offences in CCQ, ss 461 and 463, or note the increased penalties in CCWA, s 444 and the offence in CCWA, s 445A. Did the accused have the property owner’s consent? If so, there will be no offence unless the accused had an intent to defraud any person. Ask whether the accused meant to cause the damage. If not, ask whether she or he was aware, or knew or believed that damage was “likely” and proceeded regardless. If this was the case, then the offence may have been committed. If the accused did not intend the damage and was not aware it was likely, consider the lesser offence of damaging property in CCWA, s 445.

1

List the elements of the two kinds of stealing defined in CCQ, s 391; CCWA, s 371.

2

What does “conversion” mean?

3

If full ownership of property passes to an accused, what effect does this have on a prosecution for stealing? Why does that effect occur?

4

How much force is required to constitute “violence” in robbery?

5

In what circumstances can a person be armed for the purposes of a robbery offence where they are not holding the weapon?

6

Name two significant differences between burglary/​ housebreaking offences in Queensland and the equivalent offences in Western Australia.

7

When does an offender become subject to a mandatory minimum sentence for burglary in Western Australia?

8

What is the central concept in the offence of fraud in Queensland? What is the central concept in the offence of fraud in Western Australia?

9

Which section of each Code creates a general offence of damage to property?

10

What is the increase in penalty if the damage was caused by fire?

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Revision questions

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Problem question Chloe was desperate to pay some overdue bills. She had no money until next week’s pay went into her bank account. She saw her workmate’s wallet lying inside a handbag. Chloe decided to take the wallet, empty it of any money it contained and return the wallet to the handbag. She’d slip some money equal to the amount she took back into her workmate’s wallet next week. Chloe did take the wallet but couldn’t find an opportunity that day to look through it to complete her plan, so she ended up taking the wallet home with her in her own handbag. As luck would (not) have it, as Chloe was walking home two young women approached her. One, named Pam, said: “Give us y’ handbag or we’ll bash you.” The other young woman stood holding a golf club drawn back as if ready to strike. Pam then grabbed Chloe’s handbag and both the young women fled. The last straw for Chloe was getting home and finding empty beer bottles in her rose garden. She suspected her rowdy neighbours and, in a fury, picked up one of the bottles and hurled it over the fence. It smashed a window in her neighbour’s house. Consider Chloe’s and Pam’s liability.

Answers to revision questions 1

The elements of a taking-​stealing are: • fraudulently • takes



• anything capable of being stolen. The elements of a conversion-​stealing are:

• fraudulently • converts

• anything capable of being stolen (Qld)/​any property (WA).

2

“Converts” is not defined in the Codes. According to the High Court in Ilich v The Queen, it means “deal[ing] with … property in a way which is inconsistent with the right of the owner of the property”.

3

If full ownership of property has passed to an accused, a prosecution for stealing is not possible. This is because it is impossible to steal one’s own interest in property: see Ilich v The Queen.

4

Any small amount of violence will suffice for robbery; however, the force used must be something more than that required merely to take an object from an unconscious, or otherwise unresisting, person: R v Jerome [1964] Qd R 595.

5

A person can be armed for the purposes of armed robbery where they are not holding the weapon but the weapon is within the power or possession of the offender, available for use to reinforce the demand or the use or threat of violence so as to facilitate the commission of the robbery: Western Australia v Majok (2005) 152 A Crim R 25; [2005] WASC 13.

6

In Queensland, there are different offences according to whether a “dwelling” or other “premises” are involved in the burglary/​ housebreaking offence. In addition, lack of consent to entering or being in the dwelling or premises is not an element of the offences. In Western Australia, burglary offences involve a “place” regardless of whether it is a dwelling or other premises. In addition, lack of consent to enter or be in the place is an element of the Western Australian offences.

7

An offender becomes subject to a mandatory minimum sentence for burglary in Western Australia when they have been convicted for a third time under CCWA, s 401(1) or (2) and all three offences were home burglaries: see CCWA, ss 1, 401A, 401B and 401(4).

8

The central concept in the offence of fraud in Queensland is “dishonestly”. The central concept in the offence of fraud in Western Australia is “intent to defraud”.

9

The general Code offences of damage to property are created by CCQ, s 469; CCWA, ss 444 and 445.

10

Sections 461 and 463 of the CCQ create separate arson offences. The maximum penalty for the general offence of wilful damage in CCQ, s 469 is five years. The maximum penalty for setting fire to a building, vehicle or mine etc (CCQ, s 461) is imprisonment for life. The maximum penalty for setting fire to crops or growing plants (CCQ, s 463) is 14 years. In Western Australia, the maximum penalty for the general offence of criminal damage in CCWA, s 444 is 10 years (or 14 years if the offence was committed in circumstances of racial aggravation). The maximum penalty if the damage is caused by fire is imprisonment for life. The maximum penalty for the offence in CCWA, s 445A is 15 years.

Answer to problem question Chloe The money Chloe may be liable under CCQ, s 398; CCWA, s 378 for stealing her workmate’s money. The elements of stealing are: steals; anything capable of being stolen. One form of “stealing” is defined in CCQ, s 391; CCWA, s 371 constituted by a person fraudulently taking anything

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CHAPTER  7  PROPERTY OFFENCES      273

274      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

capable of being stolen. Chloe has “taken” the money because she has physically moved it: CCQ, s 391(6); CCWA, s 371(6). She has done so fraudulently because she intends to deprive the owner of the money and it is immaterial that she intends to repay her workmate: CCQ, s 391(2)(f); CCWA, s 371(2)(f). Money comes within the definition of “anything capable of being stolen” in CCQ, ss 390, 1; CCWA, ss 370, 1. Therefore, Chloe is likely to be convicted of stealing the money. The wallet Chloe is unlikely to be convicted under CCQ, s 398; CCWA, s 378 of stealing her workmate’s wallet. She has “taken” the wallet and the wallet is a thing capable of being stolen within the meaning of CCQ, ss 391, 390; CCWA, ss 371, 370. However, she has not done so fraudulently. She did not intend to deprive her workmate permanently of the wallet. Unlike the case of money, it is insufficient to intend to deprive an owner of a thing temporarily: see CCQ, s 391(2)(a); CCWA, s 371(2)(a); see also R v Bailey [1924] QWN 38. Moreover, although the wallet was stolen from her on her way home by a third party, Chloe had no intention of dealing with it in such a manner that it could not be returned in the condition in which it was at the time of the taking: see CCQ, s 391(2)(e); CCWA, s 371(2)(e). Chloe is therefore unlikely to be convicted of stealing the wallet. Chloe may be guilty of fraud under CCQ, s 408C; CCWA, s 409. She obtained the wallet, which is property under CCQ, s 1; CCWA, s 1. For Queensland, this may be dishonest even though she intended to restore it: CCQ, s 408C(3)(b). If what she has done would be considered dishonest by ordinary honest people then it is immaterial that Chloe didn’t realise her conduct was dishonest by those standards: R v Dillon; Ex Parte Attorney General (Qld) [2015] QCA 155. For Western Australia, Chloe may not have induced a person to believe something that was not true knowing it was untrue, and therefore has not been deceitful: see Re London and Globe Finance Corp Ltd [1903] 1 Ch 728. However, she has used other dishonest means (see R v Scott [1975] AC 819) with an intent to deprive her workmate of something knowing she had no right to do so: Peters v The Queen (1998) 192 CLR 493; Bolitho v Western Australia (2007) 34 WAR 215. Thus, she had an “intention to defraud”. For Queensland and Western Australia her dishonesty/​ use of fraudulent means resulted in her obtaining the wallet. (See Clemesha v The Queen [1978] WAR 193.) Throwing the beer bottle Chloe may be charged with wilful damage (CCQ, s 469) or criminal damage (CCWA, s 444) for throwing the beer bottle which smashed the window. The window is clearly “property” within the meaning of s 1 of the Codes. It has been either destroyed or, because it has been rendered inoperative and imperfect, damaged: R v Zischke [1983] 1 Qd R 240. Chloe has caused the damage; did she do so wilfully? There is probably insufficient evidence to show that Chloe intended to cause the damage but it may be that she was aware, or believed

CHAPTER  7  PROPERTY OFFENCES      275

that the damage was likely, and in her fury disregarded the risk: see CCWA, s 443; see also R v Lockwood; Ex parte Attorney-​General [1981] Qd R 209. According to Fitzgerald P (with whom Mackenzie J expressed agreement) in R v T, “likely” means more probable than not. Chloe “suspected her neighbours” and threw the bottle, presumably to get rid of it from her yard. She might also have intended to get back at her neighbours, which suggests an awareness that throwing the bottle could cause detriment to them. If the prosecution could prove that Chloe believed the chance of damage was more probable than not, then she did her act “wilfully”. In the same case, Pincus J expressed the view that “likely” means a “substantial chance”. If this view is followed, the prosecution need only prove foresight to this lesser standard. Chloe’s act was also unlawful because she did not have her neighbour’s consent, and throwing the bottle was not authorised, justified or excused: see CCQ, s 458; CCWA, s 441. Chloe is likely to be convicted of wilful damage/​criminal damage of the window. If it cannot be proved that Chloe acted “wilfully”, she may be liable for the lesser offence of damaging property under CCWA, s 445.

Pam, accompanied by her friend, threatened Chloe and took her handbag. She may be liable for armed robbery in company under CCQ, s 409; CCWA, s 392. Robbery is stealing with violence. Pam stole Chloe’s handbag within the meaning of CCQ, s 391; CCWA, s 371 in that she physically removed the handbag from Chloe with, apparently, the intention of depriving Chloe of it permanently: see CCQ, s 391(2)(a); CCWA, s 371(2)(a). The violence in robbery may be threatened rather than actual (CCQ, s 409; CCWA, s 392) and any amount of violence, beyond mere touching in order to take an object, will suffice: R v Jerome [1964] Qd R 595. Chloe threatened a “bashing” of Chloe; therefore this element is satisfied. Moreover, Pam threat of violence was used in order to obtain the thing stolen, as required by CCQ, s 409; CCWA, s 392. Pam is likely to be found guilty of robbery. However, she may be guilty of the more serious form of robbery –​that is, being armed and in company. Pam was in company because her friend was physically present and participated by wielding the golf club, and because Chloe was confronted with the combined force of two people: R v Brougham (1986) 43 SASR 187; R v Button (2002) 54 NSWLR 455; 129 A Crim R 242; Western Australia v Dick (2006) 161 A Crim R 271. Was Pam armed with a dangerous or offensive weapon? A golf club is not a weapon per se but became one because Pam’s friend carried it with the intention of using it to inflict or threaten harm: R v Williams (1878) 14 Cox CC 59; Van den Berg v The Queen (1983) 12 A Crim R 113. Although Pam was not carrying the weapon, she was nevertheless “armed” with it because it was within her power and available for use to reinforce her demand: see Western Australia v Majok (2005) 152 A Crim R 25; [2005] WASC 13. Pam is likely to be convicted of armed robbery in company.

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Pam

276      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Critical thinking questions 1

In Western Australia, lack of consent to enter or be in the place of another is an element of burglary. Therefore, there are two fault elements in the offence: lack of consent and the fault element of whichever subsidiary offence is committed or intended. In Queensland, on the other hand, burglary or housebreaking does not require lack of consent to enter or be in the premises. Therefore, there is only one fault element: the fault in whichever offence is committed or intended when entering or in the premises. Make an argument that the Western Australia structure of burglary/​ housebreaking is the most appropriate for a fair criminal justice system. Make an argument that the Queensland structure of the offence is the most appropriate.

2

Do mandatory minimum sentences have a place in a fair criminal justice system?

3

Should there be an offence that captures the kind of conduct of the accused in Bolitho v Western Australia? That is, should fraudulently inducing a person to suffer loss entirely unrelated to that person’s economic interests attract criminal liability?

Readings • K Burton, T Crofts, R Martin, T Nisbet and S Tarrant, Criminal Codes: Commentary and Materials (7th ed, Thomson Reuters/​ Lawbook Co., 2018) Ch 6. • K Burton, Criminal Law in Queensland and Western Australia: LexisNexis Questions and Answers Book (LexisNexis, Sydney, 2015) Ch 6.

CHAPTER 8 Drug Offences Learning outcomes .........................................................................   278 [8.10] Principles...............................................................................   278 [8.10] Drug offences.............................................................................  278 [8.20] Dangerous drug..........................................................................  279 [8.30] Prohibited drugs and prohibited plants..............................................  282 [8.40] Mistake of fact.............................................................................  283 [8.50] Drug dependent person.................................................................  283 [8.60] Possession.................................................................................  284 [8.65] Quantity....................................................................................  287 [8.70] Occupier....................................................................................  288 [8.80] Owner.......................................................................................  289 [8.90] Place........................................................................................  289 [8.100] Permitting use of a place.............................................................  289 [8.110] Supply....................................................................................  290 [8.120] Produce, cultivate or manufacture..................................................  291 [8.130] Trafficking –​“Carrying on the business”..........................................  292 [8.140] Publish....................................................................................  293 [8.150] Document................................................................................  293 [8.160] Elements toolbox................................................................   293 [8.170] Guide to problem solving....................................................   304 Revision questions .........................................................................   306 Problem question ...........................................................................   307 Answers to revision questions .......................................................   307 Answer to problem question .........................................................   308 Critical thinking questions .............................................................   317

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Reading ...........................................................................................   318

278      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Learning outcomes This chapter will enable you to: • Identify a range of dangerous drugs (Qld), prohibited drugs and prohibited plants (WA) • Identify numerous drug offences1 • Understand whether an accused person can raise mistake of fact in relation to a drug offence • Understand the relevance of an accused person being drug dependent • Understand the significance of being an owner and/​or occupier • Apply the element of “possession” • Understand how the prosecution should handle minute traces of drugs • Apply the element of “supply” • Apply the element of “produce” • Apply the element of “cultivate” • Apply the element of “trafficking” • Apply the element of “publish” • Apply the element of “document” • Determine the maximum penalty for a drug offence

PRINCIPLES Drug offences [8.10] 

In Queensland and Western Australia, there are numerous drug offences; the drug offences that are canvassed in this chapter are outlined in Diagrams 8.1 and 8.2.2 In Queensland, legislation concerning drug offences is contained in the Drugs Misuse Act 1986 (Qld) (DMAQ) and the Drugs Misuse Regulation 1987 (Qld) (DMRQ), while in Western Australia, the relevant legislation is contained in the Misuse of Drugs Act 1981 (WA) (MDAWA).

1

The generic term, “drug” is used in this chapter to denote dangerous drugs in Queensland and prohibited drugs and prohibited plants in Western Australia.

2

Note that this chapter does not canvass the drug offences pursuant to either the Criminal Code 1995 (Cth) or the Customs Act 1901 (Cth).

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Dangerous drug Queensland [8.20] 

In Queensland, “dangerous drug” is a critical element of drug offences and is defined in DMAQ, s 4. It means:

(a) a thing stated in the Drugs Misuse Regulation 1987, schedule 1 or 2; or

(b) any part of a plant that is a thing stated in the  Drugs Misuse Regulation 1987, schedule 1 or 2; or

(c) a derivative or stereo-​isomer of a thing mentioned in paragraph (a) or (b); or

(d) a salt of a thing mentioned in any of paragraphs (a) to (c); or

(e) an analogue of a thing mentioned in any of paragraphs (a) to (d); or



(f) a thing that has, or is intended to have, a pharmacological effect of a thing mentioned in any of paragraphs (a) to (e); or Note—​ See also section 4BA for when a thing is intended to have a pharmacological effect of a thing mentioned in any of paragraphs (a) to (e).

(g) a thing mentioned in any of paragraphs (a) to (f) that is contained in—​

(i) a natural substance; or

(ii) a preparation, solution or admixture.

(i) a natural substance; or



(ii) a preparation, solution or admixture.

The types of dangerous drugs in Queensland that are outlined in DMRQ, Sch 1, Pt 1 and Pt 2 and Sch 2 are provided in Table 8.1.The quantities of the dangerous drugs stated in DMRQ, Schs 3 and 4 are indicated in Table 8.2. The quantities of the dangerous drugs are relevant when determining the maximum sentence for drug offences.

Dangerous drug

Sch 1 or 2

Amphetamine

Sch 1, Pt 1

Cannabinoids other than tetrahydrocannabinols (synthetic cannabis)

Sch 2

Cannabis (street names = marijuana, pot, grass, weed, hash, joint, cone, chronic, reefer, rope, mull, skunk, ganja)

Sch 2

Cocaine

Sch 1, Pt 1

Flunitrazepam (brand name = Rohypnol; street names = roofies, rufies)

Sch 2

Gamma hydroxybutyric acid (GHB) (street name = fantasy, liquid ecstasy, liquid E, grievous bodily harm, G)

Sch 2

Heroin

Sch 1, Pt 1

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Table 8.1: Queensland –​Dangerous drugs in DMRQ, Schs 1 and 2

280      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Dangerous drug

Sch 1 or 2

Ketamine (street name = green, K, super K, special K,Vitamin K)

Sch 2

Lysergic acid (street name = LSD, trips, wedges, windowpane, blotter, microdot)

Sch 2

Methylamphetamine (commonly known as ice)

Sch 1, Pt 1

3,4-​Methylenedioxymethamphetamine (MDMA) (commonly known as ecstasy)

Sch 1, Pt 1

Morphine

Sch 2

Opium

Sch 2

Pethidine

Sch 2

Psilocybin (O-​Phosphoryl-​4-​hydroxy-​N,N-​dimethyltryptamine) (street name = magic mushrooms, mushies, blue meanies, gold tops)

Sch 2

Diagram 8.1: Queensland drug offences canvassed in this chapter

Table 8.2: Queensland –​Quantities of dangerous drugs in DMRQ, Schs 3 and 4 Dangerous drug Amphetamine Cannabinoids other than tetrahydrocannabinols (synthetic cannabis) Cannabis

Quantity in Sch 3

Quantity in Sch 4

2g

200g

Not listed*

Not listed*

500g; or if the weight is less than 500g, 100 plants

Not listed*

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Dangerous drug Cocaine

Quantity in Sch 3

Quantity in Sch 4

2g

200g

Flunitrazepam (brand name = Rohypnol; street names = Roofies, Rufies)

Not listed*

Not listed*

Gamma hydroxybutyric acid (GHB) (street name = fantasy, liquid ecstasy, liquid E, grievous bodily harm, G)

2g

Not listed*

Heroin

2g

200g

Ketamine

Not listed*

Not listed*

Lysergic acid (street name = LSD, trips, wedges, windowpane, blotter, microdot)

Not listed*

Not listed*

Methylamphetamin

2g

200g

3,4-​Methylenedioxymethamphetamine (MDMA)

2g

200g

Morphine

2g

Not listed*

Opium

20g

Not listed*

Pethidine

10g

Not listed*

0.10g

Not listed*

Psilocybin (O-​Phosphoryl-​4-​hydroxy-​N,N-​ dimethyltryptamine) (street name = magic mushrooms, mushies, blue meanies, gold tops)

* “Not listed” –​maximum penalty applied under “any other case” of a drug “Not listed” in Sch 3 or 4: DMA, ss 8(1)(c), (e), 9(1)(d).

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Diagram 8.2: Western Australian drug offences canvassed in this chapter

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Prohibited drugs and prohibited plants Western Australia [8.30] 

In Western Australia, the terms “prohibited drugs” and “prohibited plants” are used instead of “dangerous drugs”.“Prohibited drugs” are drugs of addiction, specified drugs and those drugs listed in MDAWA, Sch I: MDAWA, s 4(1). Drugs of addiction are specified as a Sch 8 or 9 poison, as defined under ss 3 and 4 of the Medicines and Poisons Act 2014 (WA) (MPAWA), and include cannabis, cannabis resin, any other cannabis derivative, opium, cocaine, ecgonine, heroin, morphine and their respective salts, such as methadone and pethidine. Schedule 8 —​Controlled Drug Substances which should be available for use but require restriction of manufacture, supply, distribution, possession and use to reduce abuse, misuse and physical or psychological dependence. Schedule 9 —​Prohibited Substance Substances which may be abused or misused, the manufacture, possession, sale or use of which should be prohibited by law except when required for medical or scientific research, or for analytical, teaching or training purposes with approval of the CEO.

“Prohibited plants” are plants from which a drug of addiction may be obtained, derived or manufactured, and those plants specified in MDAWA, Sch  II:  MDAWA, s  4(2). The MDAWA does not apply to non-​ viable seeds of the opium poppy (papaver somniferum) or to processed industrial hemp: MDAWA, ss 4(3) and 4(4). Table  8.3 provides examples of prohibited drugs and prohibited plants specified in the MDAWA. Table 8.3: Western Australia –​Prohibited drugs and prohibited plants Prohibited drugs and prohibited plants

Sch I or II

Cocaine

I

Cocaine derivative

I

≥ to 0.1% of cocaine in a preparation, admixture, extract or other substance

I

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Prohibited drugs and prohibited plants

Sch I or II

Heroin

I

Morphine

I

≥ to 0.2% of morphine in a preparation, admixture, extract or other substance

I

Opium Cannabis Cannabis derivative

I I and II I

Cannabis resin

I

Papaver somniferum

II

Papaver bracteatum

II

Mistake of fact [8.40] 

In Western Australia, if an accused person has an honest and reasonable, but mistaken, belief about the nature or existence of the substance, they may rely on mistake of fact: CCWA, s 24. However, in Queensland, CCQ, s 24 is generally not available (DMAQ, s  129(1)(d)), except where the accused can prove on the balance of probabilities that they had an honest and reasonable mistaken belief as to a state of things relevant to the offence, such as a honest and reasonable belief that the substance in question was innocent and did not contain any drugs: see R v Tabe (2003) 139 A Crim R 417; R v Duong [2015] QCA 170. In essence, DMAQ, s 129(1)(d) converts CCQ, s 24 from an excuse into a defence and impacts on the onus of proof.

Drug dependent person In Queensland, whether the accused person can prove to the satisfaction of a judge that they are drug dependent is important in determining the maximum sentence. Section 4 of DMAQ defines a “drug dependent person” and this definition is laid out in Diagram 8.3.

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[8.50] 

284      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Diagram 8.3: Queensland: Definition of “drug dependent person”

Possession [8.60] 

In Queensland, possessing dangerous drugs is an offence: DMAQ, s  9. In Western Australia, “possession” of a prohibited drug or prohibited plant is relevant to several offences, including MDAWA, ss  6(1)(a), 6(2),

CHAPTER  8  DRUG OFFENCES      285

7(1)(a) and 7(2). Thus, in both jurisdictions, it is vital to conceptualise the meaning of the term “possession”. In Queensland, DMAQ, s 116 states that the definition of “possession” contained in CCQ, s 1 should be taken as the relevant definition. Section 1 of the CCQ states that “possession” includes: having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question.

In Western Australia, MDAWA, s 3(1) defines “to possess” as:

“Possession” has been judicially interpreted extensively in both Queensland and Western Australia. Where an accused person has actual possession of a drug, common-​ sense dictates that they are not criminally responsible for possession of it unless they are aware of its existence –​for example, where a person wears a jacket and the drug has been covertly placed in the pocket without the person’s knowledge: R v Clare [1994] 2 Qd R 619 at 637 per Fitzgerald P. In Queensland, the prosecution needs to prove that the accused person intended to possess a certain thing, and the certain thing is a dangerous drug:  R v Clare [1994] 2 Qd R 619. The prosecution does not need to prove that accused person knew the thing was a dangerous drug, it is for the accused to show that they honestly and reasonably did not know: R v Clare [1994] 2 Qd R 619. There is no possession if the accused person is unaware of the existence of the thing: R v Clare [1994] 2 Qd R 619. Knowledge can be proven by phone calls or an intention to meet with someone about the drugs:  R v Jovic (2008) 187 A  Crim R 579 at [25] per MacKenzie AJA, Muir and Daubney JJ. An inference of prior knowledge can be drawn from attempts to dispose of or conceal a container of drugs, such as trying to flush the container down a toilet or hide the container in another bag: R v Jovic (2008) 187 A Crim R 579 at [67] per MacKenzie AJA, Muir and Daubney JJ. The awareness of the existence of a drug extends to constructive knowledge –​for example, an accused person should have inquired, suspected or been ordinarily curious about the thing (drug) possessed:  Tabe v The Queen (2005) 225 CLR 418 at [143] per Callinan and Heydon JJ. In Western Australia v The Queen (2007) 33 WAR 483 at [67], Steytler P stated:

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to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb “to possess” have correlative meanings.

286      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

[I]‌t seems to me that knowledge (which might be equated with awareness, in this context) is established if there is proof of a belief by the accused in the likelihood (in the sense that there was a significant or real chance) that he or she had a prohibited drug in his or her physical possession or otherwise in his or her control or under his or her dominion.

Consequently, in Western Australia, the prosecution needs to prove that the accused person knew the thing is a prohibited drug or is likely to be a prohibited drug. An accused person is in possession where they have actual possession (physical possession and control) of a drug, where they know it is drug and where they demonstrate an intention to exclude other people from actually possessing the drug: R v Todd (1977) 6 A Crim R 105 at 106-​107 per Wanstall  CJ, Matthews and Kelly  JJ. Further, an accused person is “in possession” where they have actual possession of a drug, where they know it is a drug and where they throw the drug away in order to hide it from police: R v Thomas (1981) 6 A Crim R 66 at 67 per Lucas SPJ. In the absence of actual possession, the critical point is whether the accused person is in control of the drug: R v Bridges [1986] 2 Qd R 391 at 395 per de Jersey J. De facto possession can occur where a person does not have actual possession but rather exercises control and dominion over the drug –​for example, where the drug is hidden in a ceiling controlled by the accused person. If the ceiling was in a public place that lots of people could have freely accessed, such as a restaurant toilet, it is unlikely that control can be established: Lai v The Queen (1989) 42 A Crim R 460. However, if there was limited access to the ceiling, such as a ceiling in a locked house and only people with a key had access, it is more likely that control will be established: Davies v Western Australia (2005) 30 WAR 31 at [8]‌per Steytler P. Limited access can also help with establishing who had control over drugs found in a vehicle, such as a truck, if there are limited people with access to the vehicle; however, establishing knowledge is still a critical element: R v Shipley (2014) 247 A Crim R 71 at [27] per McMeekin J. A drug may be exclusively possessed by one person or jointly by several persons who exercise control and dominion over a drug. An example of the latter occurs where a person allows another person to store a drug at the first person’s home in return for payment, cash or other and allows the second person to access the drug: Davies v Western Australia (2005) 30 WAR 31 at [37]-​[38] per Roberts-​Smith JA. However, the fact that an accused person knows that a drug exists in a communal part of a house and intends to exercise control over it (dispose of it) in the future is insufficient to amount to possession: R v Solway [1984] 2 Qd R 75 at 77 per Demack  J. In such a situation, the accused person

CHAPTER  8  DRUG OFFENCES      287

would need to lay some claim to the drug or exercise control over it –​for example, by shifting it, hiding it or throwing it away –​before they could be said to be in possession: R v Solway [1984] 2 Qd R 75 at 77 per Demack J; Sgarlata v State of Western Australia (2015) 49 WAR 176. On the other hand, possession does occur where an accused person has in the past done an act that lays a claim to a drug, but needs to complete a future act that is within their capacity to obtain actual possession  –​for example, where an accused person has paid for a parcel in the past and needs to sign a receipt on delivery in the future: R v Warneminde [1978] Qd R 371.

Quantity [8.65] 

In Queensland, the quantity of the drug is an element of “producing” or “possessing” drugs and is used to determine the specified maximum penalty of each offence: DMAQ, ss 8 and 9. In Western Australia, the quantity of the drug is used: • as an element of “possessing with intent” or “cultivating with intent” prohibited drugs or plants: MDAWA, ss 6(1) and 7(1), Schs V and VI; • as an element of “possessing a trafficable methylamphetamine”: MDAWA, s 6(1), Sch VII;

quantity

of

• for determining the court of trial for the drug offence:  MDAWA, s  9, Schs III and IV; • to give rise to a presumption of intention to sell or supply drugs or plants: MDAWA, Schs V and VI;

While in Queensland, the quantity of a dangerous drug possessed impacts on the penalty, the DMAQ does not specify a minimum quantity to be possessed before a charge will arise. With advances in science and technology, there may be techniques for detecting minute traces on, for example, clothing, despite the fact the clothing has been washed: Williams v The Queen (1978) 140 CLR 591 at 599 [18] per Gibbs and Mason JJ. In this case, there was difficulty in accurately weighing the amount of the drug involved, but the evidence suggested that the amount was at least 20  micrograms. The prosecution should consider whether the amount is visible to the naked eye and adopt a common-​sense approach: see Williams v The Queen (1978) 140 CLR 591 at 598 [16] per Gibbs and Mason JJ. In Donnelly v Rose [1995] 1 Qd R 148, the quantity of the substance involved was 0.026 grams, which was too small to determine the proportion of heroin contained in it. However, there are cases where only a minute

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• as an element of “trafficking” drugs or plants: MDAWA, s 32A, Schs VII and VIII.

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quantity may be detected, but the circumstances of the case may allow a court to infer that the person possessed a larger quantity, such as when a person attempts to dispose of a significant quantity of drugs, but a small amount is still detectable: Barlow v Dale (1993) CA 406 per Fitzgerald P, McPherson JA and Williams J.

Occupier [8.70] 

In Queensland, determining whether the accused person is an occupier is a key element when considering the use of a place for a dangerous drug offence under DMAQ, s 11(1). Under DMAQ, s  129(1)(c), it is considered conclusive evidence that a person is in possession of a drug if it is found in a place where the person is an occupier or is concerned in the management or control of the drug. However, this conclusive evidence can be negated where the person shows that they did not know and did not have reason to suspect the drug was in that place. Ownership is not the key here; rather the critical element is the occupation or management or control of a place.While the term “occupier” is not defined under the DMAQ, it has been judicially interpreted –​for example: • there may be more than one occupier of a place: Thow v Campbell [1997] 2 Qd R 324; • an occupier does not need to be continually, physically present, just needs to have the management or control of a place where the drug was found at the material time: R v Smythe [1997] 2 Qd R 223 at 225 per Thomas J; • an occupier should be able to exclude strangers: Thow v Campbell [1997] 2 Qd R 324 at 326 per Pincus and Davies JJ; • the evidence capable of showing that a person is an occupier of a place includes sleeping there, having personal papers there, birth certificate, clothes and other items consistent with occupation; however, just having personal items on the premises is not enough by itself to prove occupation: R v Von Snarski (2001) 121 A Crim R 205 at [20]-​[21] per Thomas JA, Wilson and Douglas JJ; • the mere signing of a lease is not by itself enough to prove occupation: R v Von Snarski (2001) 121 A Crim R 205 at [21] per Thomas JA, Wilson and Douglas JJ. In Western Australia,“occupier” is an element of an offence under MDAWA, s 5(1)(a). However, the term is not defined in the MDAWA.

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Owner [8.80] 

In Queensland, ownership is not necessary to prove the offence of permitting a place to be used for a drug offence. It is sufficient if the person is just the occupier or concerned in the management or control of a place: DMAQ, s 11(1). In Western Australia, the term “owner”, or “lessee”, is an element of MDAWA, s 5(1)(b) and includes the person who is entitled to receive rent of those premises and the person to whom the rent of those premises is paid: MDAWA, s 5(2).

Place [8.90] 

In Queensland, applying the notion of “place” is relevant to the offence of permitting a place to be used for a drug offence pursuant to DMAQ, s 11(1).The statutory definition of “place” includes a vehicle which, in turn, includes an aircraft or vessel: DMAQ, s 4. In R v Von Snarski (2001) 121 A Crim R 205; [2001] QCA 71 at [18] per Thomas JA, Wilson and Douglas JJ, the term “place” has been interpreted to include “premises”. In Queensland, s  116 of the DMAQ states that definitions contained in s  1 of the CCQ should be taken as the relevant definitions, where a premises includes a building or structure, the land or water where a building or structure is situated; a vehicle, or a caravan; a tent, a cave; and premises in which more than one person has ownership. Examples of “places” include: • a house: Thow v Campbell [1997] 2 Qd R 324; • a unit or apartment on a shared lease: R v Von Snarski (2001) 121 A Crim R 205; [2001] QCA 71; • a rural property under joint ownership, including the land, paddocks, “bush” areas, house, sheds, water tanks and caravan: R v Smythe [1997] 2 Qd R 223 at 22 per Thomas J. In Western Australia, while the term “premises” is used in MDAWA, s 5(1), the MDAWA does not offer a statutory definition for this term.

Permitting use of a place According to DMAQ, s 11(1), it is an offence for an occupier to permit a place to be used for a drug offence. The term “knowingly permits” is an element of the offences in MDAWA, s 5(1)(a) and (b). In R v Von Snarski (2001) 121 A Crim R 205; [2001] QCA 71, the term “permits” has been interpreted as not including “mere inactivity” and not

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[8.100] 

290      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

necessarily requiring “specific activity”, even where the occupier knows what another person is doing in the place but does not activity intervene; it is a question of fact that depends on the circumstances.

Supply [8.110] 

The definition of “supply” is relevant to the offences in both Queensland and Western Australia:  DMAQ, s  6(1) and MDAWA, ss  5(1), 6(1), 7(1) and 7A(1).The definitions in both Acts are very broad, and go well beyond the act of selling. In fact, supply may include a gift and does not even require payment to be received by the accused person. “Supply” includes the “transfer of proprietary rights by delivery”, but it does not include “re-​delivery pursuant to a bailment”: Manisco v The Queen (1995) 14 WAR 303 at 306 per Pigeon J. In Western Australia, “it does not matter that something is supplied on behalf of another or on whose behalf it is supplied”: MDAWA, s 3(1). The statutory definitions of “supply” and “to supply” are inclusive and are provided in DMAQ, s 4 and the MDAWA, s 3(1), respectively. Diagrams 8.4 and 8.5 illustrate these definitions. Diagram 8.4: Queensland –​Definition of “supply” per DMAQ, s 4

CHAPTER  8  DRUG OFFENCES      291

Diagram 8.5: Western Australia –​Definition of “supply” per MDAWA, s 3(1)

Produce, cultivate or manufacture In Queensland, the offence in DMAQ, s  8(1) is founded on the definition of “produce” in DMAQ, s 4. This definition is illustrated in Diagram 8.6. In relation to crops, “producing” includes weeding, harvesting and picking: R v Sabato and Hickey (1987) 31 A Crim R 72 at 74 per Thomas J. In Western Australia, the offences in ss 7(1), (2) and 7A(1) of the MDAWA contain the element of “cultivate”, rather than “produce”. Section 3(1) of MDAWA provides that “to cultivate” a prohibited plant includes “to grow, sow or scatter the seed produced by, or to plant, nurture, tend or harvest, the prohibited plant”.

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[8.120] 

292      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Diagram 8.6: Queensland –​Definition of “produce” per DMAQ, s 4

Trafficking –​“Carrying on the business” [8.130] 

Trafficking is an offence in both Queensland and Western Australia: DMAQ, s 5(1) and MDAWA, s 32A(1). In Western Australia, “trafficking” is defined based on the quantity or number of drugs or plants involved, respectively, with the relevant quantities and numbers specified in the MDAWA, Schs VII and VIII. However, in Queensland, the term “trafficking” is not defined in the legislation, but it has been judicially interpreted in the case law, as the following examples demonstrate: • An isolated transaction is not sufficient to amount to carrying on a business for the purpose of trafficking. There are two key characteristics of carrying on a business –​continuing conduct (systematic operation and repetition) and expected commercial character (exchanging the drug in return for valuable consideration): R v Quaile [1988] 2 Qd R 103 at 104-​ 105 per Andrews CJ. • Trafficking may occur at any point on a chain of distribution, and the prosecution does not need to prove that the drug reached its

CHAPTER  8  DRUG OFFENCES      293

final destination: R v Quaile [1988] 2 Qd R 103 at 113-​ 114 per Macrossan J. • Where an accused person buys a drug for their own consumption, rather than for resale, they are not trafficking: R v Quaile [1988] 2 Qd R 103 at 113-​114 per Macrossan J. • Trafficking includes “advertising or promoting the ‘product’ by communicating with prospective buyers; setting up lines of supply; negotiating prices and terms of supply and payment; soliciting and receiving orders; [and] arranging places and times of delivery”:  R v Ellhusseini [1998] 2 Qd R 442 at 451 per McPherson J.

Publish [8.140] 

For the purposes of the offence of publishing or possessing instructions for producing dangerous drugs pursuant to DMAQ, s  8A(1), “publish” includes to “publish to any person and supply, exhibit and display to any person, whether the publication is made orally or in written, electronic or another form”: DMAQ, s 8A(3). The term “publish” is not used in the MDAWA.

Document [8.150] 

For the purposes of the offence of publishing or possessing instructions for producing dangerous drugs pursuant to DMAQ, s 8A(1), a “document” includes a “document containing instructions about the way to produce a dangerous drug [and] includes anything designed to enable electronic access specifically to the instructions”: DMAQ, s 8A(3). The term “document” is not used in the sense of this offence in the MDAWA.

Elements toolbox Queensland

[8.160] 

The elements of the crime of trafficking pursuant to DMAQ,

s 5(1) are: 1.

A  person

2.

Carries on the business

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Trafficking

294      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

3.

Of unlawfully trafficking

4.

In a dangerous drug

5.

Maximum penalty = 25 years’ imprisonment.

Supplying The elements of the crime of supplying pursuant to DMAQ, s 6(1) are: 1.

A  person

2.

Unlawfully supplies

3.

Dangerous  drug

4.

To another (in or out of Queensland) aggravated supply and maximum penalty: DMAQ, ss 6(1) and 6(2); DMRQ, Schs 1 and 2. Aggravated supply: DMAQ, s 6(2) adult accused person supplies

Maximum penalty and imprisonment: DMAQ, s 6(1) Sch 1 drugs

Sch 2 drugs

No aggravated supply

(c) 20 years

(f) 15 years

(a) to a minor under 16 years old

(a) life imprisonment

(d) 25 years

(aa) to a minor 16 years old or more

(b) 25 years

(e) 20 years

(b) to an intellectually impaired person

(b) 25 years

(e) 20 years

(c) within an educational institution

(b) 25 years

(e) 20 years

(d) within a correctional facility

(b) 25 years

(e) 20 years

(e) to a person who does not know they are being supplied with the thing

(b) 25 years

(e) 20 years

Producing The elements of the crime of producing pursuant to DMAQ, s 8(1) are: 1.

A  person

2.

Unlawfully produces

3.

Dangerous  drug

4.

Maximum penalty: DMAQ, s 8(1); DMRQ, Schs 1, 2, 3 and 4. DMAQ, s 8(1)

Quantity produced (Qty): DMRQ, Schs 3 and 4

Drug dependent person

Maximum penalty

(a)

Qty ≥ Sch 4

N/​A

25 years

(b)(i)

Sch 3 ≤ Qty < Sch 4

Yes

20 years

(b)(ii)

Sch 3 ≤ Qty < Sch 4

No

25 years

(c)

“any other case” of a Sch 1 drug “Not listed” in Sch 3 or 4, or Qty < Sch 3

N/​A

20 years

Sch 1 drugs

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DMAQ, s 8(1)

Quantity produced (Qty): DMRQ, Schs 3 and 4

Drug dependent person

Maximum penalty

(d)

Qty ≥ Sch 3

N/​A

20 years

(e)

“any other case” of a Sch 2 drug “Not listed” in Sch 3 *, or Qty < Sch 3

N/​A

15 years

Sch 2 drugs

* No Sch 2 drugs are listed in Sch 4.

Publishing or possessing instructions The elements of the crime of publishing or possessing instructions for producing dangerous drugs pursuant to DMAQ, s 8A(1) are: 1. A person (a) unlawfully publishes instructions; OR (b) 2 . 3. 4. 5.

unlawfully has in their possession a document containing instructions About the way to produce Dangerous  drug Defence = commercial production of industrial cannabis in DMAQ, Pt 5B Maximum penalty: DMAQ, s 8A(2); DMRQ, Schs 1 and 2.

(a) (b)

25 years’ imprisonment for DMRQ, Sch 1 drug instructions; OR 20 years’ imprisonment for DMRQ, Sch 2 drug instructions.

Possessing

3.

Dangerous  drug

4.

Maximum penalty: DMAQ, s 9(1); DMRQ, Schs 1, 2, 3 and 4. DMAQ, s 9(1)

Quantity possessed (Qty): DMRQ, Schs 3 and 4

Drug dependent

Maximum penalty

Sch 1 drugs (a)

Qty ≥ Sch 4

N/​A

25 years

(b)(i)

Sch 3 ≤ Qty < Sch 4

Yes

20 years

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The elements of the crime of possessing pursuant to DMAQ, s 9(1) are: 1. A  person 2. Unlawfully has possession – definition of possession includes definition under CCQ, s  1: DMAQ, s 116

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DMAQ, s 9(1)

Quantity possessed (Qty): DMRQ, Schs 3 and 4

Drug dependent

Maximum penalty

(b)(ii)

Sch 3 ≤ Qty < Sch 4

No

25 years

(d)

“any other case” of a Sch 1 drug “Not listed” in Sch 3 or 4, or Qty < Sch 3

N/​A

15 years

(c)

Qty ≥ Sch 3

N/​A

20 years

(d)

“any other case” of a Sch 2 drug “Not listed” in Sch 3*, or Qty < Sch 3

N/​A

15 years

Sch 2 drugs

* No Sch 2 drugs are listed in Sch 4.

Possessing things For use in drug offence

The elements of the crime of possessing things pursuant to DMAQ, s 10(1) are: 1. 2.

3.

A  person Has in their possession (a) anything for use in connection with a drug offence under DMAQ, Pt 2; (b) anything that the person has used in connection with such a purpose Maximum penalty = 15 years’ imprisonment.

(Note that further offences are listed in this provision –​possessing anything with which to smoke or consume a drug; supplying a hypodermic syringe or needle (unless the person is, for example, a medical practitioner or pharmacist); and failing to take reasonable care with a hypodermic syringe or needle.) Permitting use of place The elements of the crime of permitting use of place pursuant to DMAQ, s 11(1) are: 1.

A person who is (a)

an occupier; OR

(b)

concerned in the management or control of a place

2.

Permits the place to be used for the commission of a drug offence (under DMAQ, Pt 2)

3.

Maximum penalty = 15 years’ imprisonment.

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Western Australia Premises and utensils The elements of the simple offence concerned with prohibited drugs and prohibited plants in relation to premises and utensils pursuant to MDAWA, s 5(1)(a)-​(e) are: Occupier  –​manufacturing, supplying or using  –​drug or plant: MDAWA, s 5(1)(a) 1.

Occupier of premises

2.

Knowingly permits those premises to be used for (a)

the manufacture or preparation of a prohibited drug or prohibited plant; OR

(b)

manufacture, preparation, sale, supply or use of a prohibited drug or prohibited plant

3.

Except if authorised by the MDAWA or MPAWA: MDAWA, s 5(3) (a)-​(b);

4.

Maximum penalty  =  fine of $3,000 and/​ or three years’ imprisonment: MDAWA, s 34(1)(d);

OR Owner or lessee –​using –​drug or plant: MDAWA, s 5(1)(b) 1.

Owner or lessee of any premises

2.

Knowingly permits those premises to be used

3.

For using a prohibited drug or prohibited plant

4.

Except if authorised by the MDAWA or Medicines and Poisons Act 2014 (WA): MDAWA, s 5(3)(a)-​(b);

5.

Maximum penalty  =  fine of $3,000 and/​ or three years’ imprisonment: MDAWA, s 34(1)(d);

1.

A person knowingly concerned in the management of any premises

2.

Used for (a)

the manufacture or preparation of a prohibited drug or prohibited plant; OR

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OR Manager –​manufacturing, supplying or using –​drug or plant: MDAWA, s 5(1)(c)

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(b)

manufacture, preparation, sale, supply or use of a prohibited drug or prohibited plant; OR

(c)

using a prohibited drug or prohibited plant

3.

Except if authorised by the MDAWA or MPAWA: MDAWA, s 5(3) (a)-​(b);

4.

Maximum penalty  =  fine of $3,000 and/​ or three years’ imprisonment: MDAWA, s 34(1)(d);

OR Any person in a place  –​smoking  –​drug or plant: MDAWA, s 5(1)(e) 1.

A person is found in any place

2.

Used for smoking a prohibited drug or prohibited plant (other than cannabis)

3.

Maximum penalty  =  fine of $2,000 and/​ or two years’ imprisonment: MDAWA, s 34(1)(e).

Prohibited drugs The elements of the offences concerned with prohibited drugs pursuant to MDAWA, s 6 are: Drug  –​possessing with intent, manufacturing or supplying: MDAWA, s 6(1), Sch V. 1.

A person (a)

possesses with intent to sell or supply to another; OR

• presumption of intention to sell or supply established if person is in possession of a quantity of the drug greater than, or equal to, the quantity specified under MDAWA, Sch V; (b)

manufactures or prepares; OR

(c)

sells or supplies, or offers to sell or supply, to another;

2.

A prohibited drug

3.

A person does not commit a crime under MDAWA, s 6(1) if: (a)

possession of drug is authorised by or under the MDAWA or MPAWA; OR

(b)

the possession of a prohibited drug was for the purpose of delivering it to a person authorised by the MDAWA or

CHAPTER  8  DRUG OFFENCES      299

the MPAWA to have possession, or in accordance with an authorised prescription (note that there are additional requirements –​that is, to have authority in writing and to take reasonable steps to deliver); OR (c)

the person is analysing, examining or dealing with a prohibited drug under the MDAWA in their capacity as an analyst, botanist or other expert

4.

A person does not commit a crime under MDAWA, s  6(1) if the possession of a prohibited drug was for the purpose of delivering it to a person authorised by the MDAWA or the MPAWA to manufacture, prepare, sell or supply the prohibited drug (note that there are additional requirements –​that is, to have authority in writing and to take reasonable steps to deliver);

5.

Crime

6.

Maximum penalty: MDAWA, s 9(1)(a) and 34, Schs III and VII. (a)

a crime under s 6(1) that involves a trafficable quantity of methylamphetamine is liable to imprisonment for life: MDAWA, s 34(1)(a);

(b)

person convicted on indictment if quantity of drugs is greater than or equal to the quantity specified in MDAWA, Sch III; otherwise person convicted on summary trial:  MDAWA, s 9(1)(a)

(c)

fine of $100,000 and/​or 25  years’ imprisonment:  MDAWA, s 34(1)(aa); OR

(d)

where the prohibited drug is cannabis (not cannabis derivative or cannabis resin) and the person is sentenced in the District or Supreme Court  =  fine of $20,000 and/​ or 10  years’ imprisonment: MDAWA, s 34(2)(a); OR

(e)

where the person is sentenced in a summary court = fine of $5,000 and/​or 4 years’ imprisonment: MDAWA, s 34(2)(b);

OR Drug –​possessing or using: MDAWA, s 6(2) 1.

A person

• has in their possession; OR

• uses

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a. trafficable quantity of methylamphetamine means a quantity of methylamphetamine not less than that specified in Sch VII item 8 = 28 grams: MDAWA, s 34(1A); OR

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2.

A prohibited drug

3.

A person does not commit a simple offence under MDAWA, s 6(2) if: (a)

possession of drug is authorised by or under the MDAWA or MPAWA; OR

(b)

the possession of a prohibited drug was for the purpose of delivering it to a person authorised by the MDAWA or the MPAWA to have possession, or in accordance with an authorised prescription (note that there are additional requirements –​that is, to have authority in writing and to take reasonable steps to deliver); OR

(c)

the person is analysing, examining or dealing with a prohibited drug under the MDAWA in their capacity as an analyst, botanist or other expert

4.

A person does not commit a simple offence under subs (2) by reason only of using a prohibited drug if the person proves that he or she was a person authorised under this Act or the Medicines and Poisons Act 2014

5.

Simple offence

6.

Maximum penalty  =  fine of $2,000 and/​ or two years’ imprisonment: MDAWA, s 34(1)(e).

Prohibited plants The elements of the offences concerned with prohibited plants pursuant to MDAWA, s 7 are: Plant  –​possessing or cultivating with intent or supplying: MDAWA, s 7(1), Sch VI. 1.

A person (a)

Possesses with intent, or cultivates with intent, to sell or supply prohibited plants or any prohibited drug obtainable from prohibited plants, to another;

• presumption of intention to sell or supply established if person is in possession of a number (quantity) of plants greater than, or equal to, the number specified under MDAWA, Sch VI; OR (b)

sells or supplies, or offers to sell or supply, to another.

CHAPTER  8  DRUG OFFENCES      301

2.

Prohibited  plants

3.

A person does not commit a crime under MDAWA, s 7(1) if: (a)

possession of drug obtainable from plant is authorised by or under the MDAWA or MPAWA; OR

(b)

the possession of the prohibited plant was for the purpose of delivering it to a person authorised by the MDAWA or the MPAWA to have possession, or in accordance with an authorised prescription (note that there are additional requirements –​that is, to have authority in writing and to take reasonable steps to deliver); OR

(c)

the person is analysing, examining or dealing with a prohibited plant under the MDAWA in their capacity as an analyst, botanist or other expert

4.

Crime

5.

Maximum penalty: MDAWA, ss 9(1)(b) and 34, Sch IV

• person convicted on indictment if number of plants is greater than or equal to the number specified in MDAWA, Sch IV; otherwise person convicted on summary trial: MDAWA, s 9(1) (b)



• fine of $100,000 and/​ or 25  years’ imprisonment:  MDAWA, s 34(1)(ab); OR



• where the prohibited drug is cannabis (not cannabis derivative or cannabis resin) and the person is sentenced in the District or Supreme Court  =  fine of $20,000 and/​ or 10  years’ imprisonment: MDAWA, s 34(2)(a); OR



• where the person is sentenced in a summary court  =  fine of $5,000 and/​or 4 years’ imprisonment: MDAWA, s 34(2)(b).

Plant –​possessing or cultivating: MDAWA, s 7(2) 1.

A person

• has in their possession; OR

2.

Prohibited  plants

3.

A person does not commit a simple offence under MDAWA, s 7(2) if: (a)

possession of drug obtainable from plant is authorised by or under the MDAWA or MPAWA; OR

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• cultivates

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(b)

the possession of the prohibited plant was for the purpose of delivering it to a person authorised by the MDAWA or the MPAWA to have possession, or in accordance with an authorised prescription (note that there are additional requirements –​that is, to have authority in writing and to take reasonable steps to deliver); OR

(c)

the person is analysing, examining or dealing with a prohibited plant under the MDAWA in their capacity as an analyst, botanist or other expert

4.

Simple offence

5.

Maximum penalty  =  fine of $2,000 and/​ or two years’ imprisonment: MDAWA, s 34(1)(e).

Plant hydroponic cultivation The elements of selling or supplying a thing knowing it will be used in the hydroponic cultivation of a prohibited plant pursuant to MDAWA, s 7A(1) are: 1.

A person

• sells or supplies; OR



• offers to sell or supply

2.

To another

3.

Any thing the person knows will be used to cultivate a prohibited plant contrary to s 7(1)(a) or (2) by hydroponic means;

4.

Indictable offence

5.

Maximum penalty: MDAWA, ss 9(1)(c) and 34. • person may be convicted on indictment or summary trial: MDAWA, s 9(1)(c)

•

where convicted on indictment = fine of $20,000 and/​or 5 years’ imprisonment: MDAWA, s 34(1)(c)(i); OR



• where convicted by a summary court = fine of $2,000 and/​or 2 years’ imprisonment: MDAWA, s 34(1)(c)(ii).

Drug or plant trafficking The elements of drug (or plant) trafficking pursuant to MDAWA, s 32A(1), Schs VII and VIII are:

CHAPTER  8  DRUG OFFENCES      303

1.

A person is (a)

(b)

(c)

convicted of a serious drug offence and during the last 10 years convicted of two or more: (i)

serious drug offences; OR

(ii)

external serious drug offences; OR

(iii)

offences, one or more of which are serious drug offences and one or more of which are external serious drug offences; OR

convicted of a serious drug offence: (i)

of a prohibited drug that was = or > than the quantity in Sch VII; OR

(ii)

of a prohibited plant that was = or > than the quantity in Sch VIII; OR

relevant drug offence and at the time the accused person was a member of a declared criminal organisation. (i)

2.

Definitions of “serious drug offence”,“external serious drug offence”, “relevant drug offence”, “member” and “declared criminal organisation” under MDAWA, s 32A(3).

Maximum penalty: MDAWA, s 32A(1); Criminal Property Confiscation Act 2000 (WA), s 8.

The court declares the person a drug trafficker on application of the Director of Public Prosecutions or police prosecutor, which enlivens Criminal Property Confiscation Act 2000 (WA), s 8. Criminal Property Confiscation Act 2000 (WA), s 8: When a person is declared to be a drug trafficker under Misuse of Drugs Act 1981, s 32A(1) as a result of being convicted of a confiscation offence that was committed after the commencement of this Act, the following property is confiscated: (a)

all the property that the person owns or effectively controls at the time the declaration is made;

(b)

all property that the person gave away at any time before the declaration was made, whether the gift was made before or after the commencement of this Act. (i)

Note: this provision can be applied both retrospectively or prospectively; before or after.

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1.

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Guide to problem solving [8.170] Queensland • Is the drug a dangerous drug? – Check the drugs specified in DMRQ, Sch 1, Pt 1 and Pt 2 and Sch 2 • What did the accused person do with the dangerous drug? – Trafficking

•​ Check the case law definitions of this term

•​ Apply DMAQ, s 5

– Supplying

•​ Is there an aggravated supply?

•​ Apply DMAQ, s 6

– Producing

•​ Check the statutory and case law definitions of this term

•​ Apply DMAQ, s 8

– Possessing

•​ Check the statutory and case law definitions of this term

•​ Apply DMAQ, s 9

• Did the accused person publish or possess instructions on producing a dangerous drug?

– Apply DMAQ, s 8A

• Did the accused person possess a thing that is used in connection with a dangerous drug offence?

– Apply DMAQ, s 10

• Did the accused person permit a place to be used for a dangerous drug offence?

– Apply DMAQ, s 11

• What is the maximum penalty for the offence?

– Check the quantities specified in DMRQ, Schs 3 and 4



– Is it relevant that the accused person could argue that they are drug dependent?



– Is the person a drug dependent person?

•​ Apply DMAQ, s 4.

Western Australia • Is the drug a prohibited drug?

– Apply MDAWA, s 4(1), Sch I.

• Is the plant a prohibited plant?

– Apply MDAWA, s 4(2), Sch II.

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• Is the accused person an occupier, owner, lessee or knowingly concerned with the management of premises? – Is a prohibited drug or prohibited plant manufactured, prepared, sold, supplied, or used at the premises?

•​ Apply MDAWA, s 5(a)-​(c).

• Was the accused person found in any place used to smoke a prohibited drug or prohibited plant (except cannabis)?

– Apply MDAWA, s 5(e).

• What does the accused person intend to do with the prohibited drug?

– Possesses with intent to sell or supply •​ Apply MDAWA, s 6(1)(a), Sch V;



– Manufactures or prepares •​ Apply MDAWA, s 6(1)(b)



– Offers to sell or supply •​ Apply MDAWA, s 6(1)(c)



– Sells or supplies •​ Apply MDAWA, s 6(1)(c)

– Possesses

•​ Apply MDAWA, s 6(2)

– Uses

•​ Apply MDAWA, s 6(2)

– Trafficking

•​ What are the accused person’s previous convictions for drug offences?

•​ Apply MDAWA, s 32A

•​ Was the quantity of the drug greater than or equal to the “Trafficking” quantity?

•​ Apply MDAWA, Sch VII

• What does the accused person intent to do with the prohibited plant?

– Possesses with intent to sell or supply plant, or any prohibited drug obtainable from the plant •​ Apply MDAWA, s 7(1)(a), Sch VI



– Cultivates with intent to sell or supply plant, or any prohibited drug obtainable from the plant •​ Apply MDAWA, s 7(1)(a), Sch VI



•​ Apply MDAWA, s 7(1)(b)



– Sells or supplies •​ Apply MDAWA, s 7(1)(b)



– Sells or supplies a thing knowing it will be used to cultivate a prohibited plant •​ Apply MDAWA, s 7A(1)

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– Offers to sell or supply

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– Offers to sell or supply a thing knowing it will be used to cultivate a prohibited plant

•​ Apply MDAWA, s 7A(1)

– Trafficking

•​ What are the accused person’s previous convictions for drug offences?

•​ Apply MDAWA, s 32A

•​ Was the number of the plants greater than or equal to the “Trafficking” number?

•​ Apply MDAWA, Sch VIII

• Do any exceptions apply?

– Check the MDAWA or MPAWA

• What is the maximum penalty for the offence?

– Fine  and/​or – Imprisonment

•​ Apply MDAWA, s 34

Revision questions 1.

Is marijuana a dangerous drug in Queensland and/​or a prohibited drug in Western Australia?

2.

Can an accused person raise mistake of fact in relation to a drug offence?

3.

In Queensland, what label is attributed to a person who suffers a mental disorder as a result of ceasing to consume a dangerous drug?

4.

Does “possession” of a drug require actual physical possession?

5.

Assume that Axle and Crystal own a home as joint tenants and both reside in the home. Who is the occupier?

6.

Now assume that Axle and Crystal own a home as joint tenants but do not reside in it and rent it out to Darcy and Rose. What labels can be attributed to Axle, Crystal, Darcy and Rose?

7.

How should the prosecution determine whether there is a sufficient amount of a drug to proceed?

8.

Does offering to give another person an ecstasy tablet at a nightclub amount to “supply”?

9.

Is a lucrative one-​ off transaction sufficient to amount to “trafficking”?

10.

Is scattering drug seeds across land an offence?

CHAPTER  8  DRUG OFFENCES      307

Problem question Ben and Cam are brothers who reside in a house owned by Ben. Ben knew his brother Cam had a heroin addiction, and had witnessed him using it in their home. Ben disapproved of Cam using heroin and told him that he would need to find alternative accommodation if he caught him using it again. During a police raid of the house, the police found inside a walk-​in-​robe in Cam’s bedroom a set of scales and scissors containing small traces of heroin, as well as a plastic bag containing two grams of heroin.3 There is no evidence to suggest that Ben and/​or Cam are involved in trafficking, supplying, selling, manufacturing or producing heroin. Advise Ben and Cam of what drug offences they have committed.

1.

Marijuana is the common name for cannabis. In Queensland it is classified as a dangerous drug pursuant to DMRQ, Sch 2. In Western Australia it is a prohibited drug according to MDAWA, Schs I and II.

2.

In Western Australia, if an accused person is mistaken about the nature of the substance, they may rely on mistake of fact under CCWA, s 24. However, in Queensland, CCQ, s 24 is generally not available: DMAQ, s 129(1)(d), except where the accused can prove on the balance of probabilities that they had an honest and reasonable mistaken belief as to a state of things relevant to the offence: R v Tabe (2003) 139 A Crim R 417. In essence, DMAQ, s 129(1)(d) converts CCQ, s 24 from an excuse into a defence, which impacts on the onus of proof.

3.

Drug dependent person: DMAQ, s 4.

4.

No. In fact, actual physical possession may not be sufficient to amount to possession where the accused person is unaware of the drug’s existence: see R v Clare [1994] 2 Qd R 619 at 637 per Fitzgerald P. Even though an accused person does not have physical possession of a drug, they are still considered to be in possession of the drug if they exercise control and dominion over the drug: see R v Bridges [1986] 2 Qd R 391 at 395 per de Jersey J; Lai v The Queen (1989) 42 A Crim R 460; Davies v Western Australia (2005) 30 WAR 31. See also the definition of “possession” in CCQ, s 1 and “to possess” in MDAWA, s 3.

3

Note that the facts in R v Phan [2008] 2 Qd R 485; [2008] QCA 258 inspired this problem question.

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Answers to revision questions

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5.

Both Axle and Crystal are occupiers. A place may consist of more than one occupier: see Thow v Campbell [1997] 2 Qd R 324.

6.

Axle and Crystal are owners: MDAWA, s 5(1)(b) and (2). Darcy and Rose are occupiers: see Thow v Campbell [1997] 2 Qd R 324.

7.

Neither the DMAQ nor the MDAWA specify a minimum amount of a drug. However, the prosecution should consider whether the amount is visible to the naked eye and adopt a commonsense approach:  Williams v The Queen (1978) 140 CLR 591; Donnelly v Rose [1995] 1 Qd R 148. Even if only a minute quantity may be detected, the circumstances of the case may allow a court to infer that the person possessed a larger quantity: Barlow v Dale (1993) CA 406 per Fitzgerald P, McPherson JA and Williams J.

8.

Yes, offering to “give” is specifically listed in the definition of “supply” in Queensland: DMAQ, s 4. In Western Australia, it would amount to a “to supply” by virtue of, for example, “provide”, “distribute”, “make available”, “furnish”, “deliver” and “dispense”: MDAWA, s 3(1).

9.

“No” in Queensland, but “maybe yes” in Western Australia. In Queensland “trafficking” requires continuing conduct (systematic operation and repetition) as well as expected commercial character (exchanging the drug in return for valuable consideration): see R v Quaile [1988] 2 Qd R 103 at 104-​105 per Andrews CJ. However, in Western Australia “trafficking” is defined based on the quantity of the prohibited drugs or number of the prohibited plants involved: MDAWA, s 32A, Schs VII and VIII.

10.

Yes, scattering drug seeds across land amounts to cultivating. In Western Australian, to “scatter the seed” is expressly listed in the definition of “to cultivate”: MDAWA, s 3(1). It is an offence in Western Australian to cultivate a prohibited plant: MDAWA, s 7. In Queensland, “cultivating” falls within the definition of “producing”: DMAQ, s 4. Producing a dangerous drug is an offence pursuant to DMAQ, s 8(1).

Answer to problem question In answering the problem question in respect to Queensland, the following issues will need to be raised. Queensland Is heroin a dangerous drug? Yes: see DMRQ, Sch 1, Pt 1. Did Ben or Cam possess the dangerous drug? A person who unlawfully possesses a dangerous drug commits an offence pursuant to DMAQ, s 9(1).

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In Queensland, DMAQ, s 116 provides that the DMAQ is construed in accordance with the CCQ. Thus, while “possession” is not defined in the DMAQ, the definition provided in CCQ, s 1 is relevant. It states that “possession” includes: having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question. This definition canvasses both actual and de facto possession, which will be considered and applied below to Ben and Cam’s situation. Did Ben or Cam have actual possession of the two grams of heroin? A person is criminally responsible for possessing a dangerous drug where they have actual possession of the dangerous drug and they are aware of its existence: see R v Clare [1994] 2 Qd R 619 at 637 per Fitzgerald P. Awareness extends to constructive knowledge such that an accused person should have inquired, suspected or been ordinarily curious about the dangerous drug possessed: Tabe v The Queen (2005) 225 CLR 418 at [143] per Callinan and Heydon JJ. The two grams of heroin were not found physically on Ben or Cam. However, the drug was found in a plastic bag in Cam’s walk-​in-​robe, which is in a house owned by Ben. Cam is a heroin addict and the heroin was found in his walk-​in-​robe, and thus he is likely to know (rather than simply be aware) that he has possession of a dangerous drug. Arguably, Cam is in actual possession of the two grams of heroin because he knows that heroin is a dangerous drug, he has tried to hide it from police in his walk-​in-​ robe and he has demonstrated an intention to exclude other people from actually possessing the heroin: see R v Thomas [1981] 6 A Crim R 66 at 67 per Lucas SPJ; R v Todd (1977) 6 A Crim R 105 at 106-​107 per Wanstall CJ, Matthews and Kelly JJ. Ben is likely to have an awareness (constructive knowledge) of the heroin because he knows that his brother Cam has a heroin addiction, and has witnessed him using it in their home. Ben has disapproved of Cam using heroin and has told Cam that he would need to find alternative accommodation if he caught him using it again. However, while Ben may have the necessary awareness, it is difficult to argue that he is in actual possession because the heroin was found in Cam’s walk-​in-​robe, not in Ben’s walk-​in-​robe.

If the argument about actual possession is unsuccessful, then an argument about de facto possession may be available. De facto possession centres on whether the accused person exercises control and dominion over the dangerous drug: see R v Bridges [1986] 2 Qd R 391 at 395 per de Jersey J.

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Did Ben or Cam have de facto possession of the two grams of heroin?

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The two grams of heroin were not found in a communal part of the house (for example, a kitchen or bathroom). Instead, the heroin was found in Cam’s walk-​in-​robe and Cam has control over this part of the house: Lai v The Queen (1989) 42 A Crim R 460; Davies v Western Australia (2005) 30 WAR 31. Further, Cam has laid a claim to the heroin by hiding it: R v Solway [1984] 2 Qd R 75 at 77 per Demack J. While Ben owns the house, it would be difficult to argue that he has control and dominion over Cam’s walk-​in-​robe, or the heroin that is inside it. Thus, Cam is more likely to have de facto possession of the heroin. It is difficult to advocate that both Ben and Cam jointly have de facto possession of the heroin. It is unlike the scenario in Davies v Western Australia (2005) 30 WAR 31 at [37]-​[38] per Roberts-​Smith JA, where a person allowed another person to store and access a drug at their home in return for cash. Is the quantity of heroin too minute? Two grams of heroin are visible to the naked eye and a common sense approach indicates that it is not too minute: see Williams v The Queen (1978) 140 CLR 591; Donnelly v Rose [1995] 1 Qd R 148. What is the maximum penalty for the offence of possessing two grams of heroin? Assuming that Cam is found guilty of possessing two grams of heroin, it is necessary to determine the maximum penalty. As mentioned above, heroin is a DMRQ, Sch 1, Pt 1 drug. Two grams of heroin is equal to the quantity specified in DMRQ, Sch 3 and less than the quantity specified in DMRQ, Sch 4 (200 grams). If Cam can prove that he is drug dependent to the judge constituting the court, the maximum penalty is 20 years’ imprisonment: DMAQ, s 9(1)(b)(i). If Cam cannot prove that he is drug dependent to the judge constituting the court, the maximum penalty is 25 years’ imprisonment: DMAQ, s 9(1)(b)(ii). Did Ben and/​or Cam possess scales and scissors, which are used in connection with a dangerous drug offence? It is an offence to be in possession of anything for use or that the accused person has used in connection with a drug offence: DMAQ, s 10(1). Are the traces of heroin found on the scales and scissors too minute? The scales and the scissors are the things in question here and they contain small traces of heroin, which indicates that they have been used in connection with a drug offence. The quantity of the substance involved in this case was 0.026 of a gram, which was too small to determine the proportion of heroin in it. Therefore, a common sense approach suggests that they cannot be added to the quantity of heroin found in the plastic bag: see Williams v The Queen (1978) 140 CLR 591; Donnelly v Rose [1995] 1 Qd R 148. However, even if only a minute quantity may be detected, the circumstances of the case may allow a court to infer that the person

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possessed a larger quantity: Barlow v Dale (1993) CA 406 per Fitzgerald P, McPherson JA and Williams J. Did Cam and/​or Ben possess the scales and scissors? The concept of “possession” was canvassed above. For the same reasons as apply in the case of the heroin discussed above, Cam is most likely to have actual or de facto possession of the scales and scissors, but it is unlikely that Ben will have possession of any of these things. What is the maximum penalty for the offence of possessing the scales and scissors containing traces of heroin? The maximum penalty for this offence is 15 years’ imprisonment: DMAQ, s 10(1). It is irrelevant that Cam is drug dependent. Did Ben and/​or Cam permit a place to be used for a dangerous drug offence? It is an offence for an occupier or person who is concerned in the management or control of a place to permit it to be used for a dangerous drug offence: DMAQ, s 11(1). The key drug offences committed in the house are possession of heroin, and possession of scales and scissors connected with a drug offence. Are Ben and/​or Cam occupiers, or concerned in the management or control of the place? Ben owns the house, but ownership is not the key in this offence. It is critical to determine who occupies, manages or controls the place. The term “occupier” is not defined in the DMAQ, but it has been judicially interpreted: Thow v Campbell [1997] 2 Qd R 324; R v Smythe [1997] 2 Qd R 223. It is possible that both Ben and Cam are occupiers because there may be more than one occupier of a place: Thow v Campbell [1997] 2 Qd R 324. An occupier does not need to be continually, physically present: R v Smythe [1997] 2 Qd R 223. The facts indicate that both Ben and Cam live in the house on an ongoing basis, and there is no evidence to suggest that they live anywhere else. Ben and Cam do not need to live in the house 24 hours a day, seven days a week, and it is irrelevant whether or not Ben and/​or Cam were in the house at the time of the police raid. An occupier should be able to exclude strangers: Thow v Campbell [1997] 2 Qd R 324 at 326 per Pincus and Davies JJ. Both Ben and Cam have the ability to exclude strangers from the house. Consequently, both Ben and Cam are occupiers.

In R v Smythe [1997] 2 Qd R 223 at 22 per Thomas J, the definition of a “place” included a house and the surrounding land. On the facts of this problem-​ based question, the heroin was found in the house, which is owned by Ben and resided in by Ben and Cam. Therefore, it is the “place” in the question.

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Is the house the “place”?

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Have Ben and/​or Cam permitted the house to be used for a drug offence? The term “permit” is not defined in the DMAQ, but has been interpreted as not including “mere inactivity” and not necessarily requiring “specific activity”, even where the occupier knows what another person is doing in the place but does not actively intervene: R v Von Snarski (2001) 121 A Crim R 205; [2001] QCA 71. Whether the house has been permitted to be used for a drug offence is a question of fact that depends on the circumstances. Based on the facts, by hiding the plastic bag containing heroin, the scales and scissors in his walk-​in-​robe, Cam has engaged in specific activities which mean that he has permitted the drug offences to take place in the house. Ben, on the other hand, knows that Cam has a heroin addiction and has seen him use heroin in the house. Ben told Cam not to use heroin in the house again, otherwise Cam would need to live elsewhere. Arguably, Ben does not know that the house (Cam’s walk-​in-​robe) is being used to store heroin or of the scales and scissors containing traces of heroin. Therefore, it is difficult to argue that Ben permitted the house to be used for a drug offence. Can Ben or Cam negate the conclusive evidence that they are in possession of heroin? Under the DMAQ, s 129(1)(c), there is conclusive evidence that a person is in possession of a drug if it is found in a place where the person is an occupier or if the person concerned has the management or control of the drug. However, this conclusive evidence can be negated where the person shows that they did not know and did not have reason to suspect the drug was in that place. As discussed above, potentially both Ben and Cam are occupiers of the house. It is unlikely that Cam could argue that he did not know and did not have reason to suspect the heroin was in the house because he is a heroin addict and the heroin (as well as the scales and scissors containing traces of heroin) was found in his walk-​in-​robe. As a result, it is unlikely that Cam could negate the conclusive evidence. Ben knows that Cam is a heroin addict, but he may not have known that there was heroin, and scales and scissors containing traces of heroin, in Cam’s walk-​in-​ robe. The real issue becomes whether Ben had reason to suspect that the heroin (and the scales and scissors containing traces of heroin) was in the house in Cam’s walk-​in-​robe. Arguably, Ben may not have had this suspicion given that he told Cam that he would need to live elsewhere if he used heroin in the house again. Thus, Ben may be able to negate the conclusive evidence and not be criminally responsible for this offence.

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What is the maximum penalty for the offence of permitting a place to be used for a dangerous drug offence? Assuming that Cam is the only one found guilty of this offence, the maximum penalty for this offence is 15 years’ imprisonment, and it is irrelevant that he is drug dependent: DMAQ, s 11(1). Western Australia Is heroin a prohibited drug? “Prohibited drugs” are drugs of addiction, specified drugs and those drugs listed in MDAWA, Sch I: MDAWA, s 4(1)(c). Drugs of addiction are specified as a Sch 8 or 9 poison, as defined under MPAWA, ss 3 and 4. Heroin is listed under MDAWA, Sch I, item 1; therefore, heroin is a prohibited drug. Are Ben and/​or Cam occupiers, owners, lessees or knowingly concerned with the management of premises? In Western Australia, “occupier” is an element of an offence under MDAWA, s 5(1)(a), but the term “occupier” is not defined in the MDAWA. However, the Queensland judicial interpretations in Thow v Campbell [1997] 2 Qd R 324 and R v Smythe [1997] 2 Qd R 223 are persuasive in Western Australia. It is possible that both Ben and Cam are occupiers because there may be more than one occupier of a place: Thow v Campbell [1997] 2 Qd R 324. An occupier does not need to be continually, physically present: R v Smythe [1997] 2 Qd R 223. The facts indicate that both Ben and Cam live in the house on an ongoing basis. There is no evidence to suggest that they live elsewhere as well. Ben and Cam do not need to live in the house 24 hours a day, seven days a week, and it is irrelevant whether or not Ben and/​or Cam were in the house at the time of the police raid. An occupier should be able to exclude strangers: Thow v Campbell [1997] 2 Qd R 324 at 326 per Pincus and Davies JJ. Both Ben and Cam have the ability to exclude strangers from the house. Consequently, both Ben and Cam are occupiers.

Cam may also be a lessee of the house, but this would require more facts about whether there is a lease agreement between Ben and Cam, and whether Cam pays rent to Ben.

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An owner includes a person who is entitled to receive rent: MDAWA, s 5(2). It is a reasonable presumption that Cam would pay Ben rent, but further facts would be needed to establish this. In any event, the definition of “owner” is inclusive, and it is not necessary to prove this to show that Ben is the owner of the house.

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Is the house the “premises”? The term “premises” is not defined in the MDAWA, but would include Ben’s house. Did Ben and/​or Cam knowingly permit the premises to be used for the manufacture, preparation, sale, supply or use of heroin? It is a simple offence for an occupier of premises to knowingly permit those premises to be used for the manufacture, preparation, sale, supply or use of a prohibited drug: MDAWA, s 5(1)(a). The facts specifically state that there is no evidence that Ben and/​or Cam are involved in manufacturing, preparing, selling or supplying heroin. The term “permit” is not defined in the MDAWA, but has been interpreted as not including “mere inactivity” and not necessarily requiring “specific activity”, even where the occupier knows what another person is doing in the place and stands back: see R v Von Snarski (2001) 121 A Crim R 205; [2001] QCA 71. Whether an occupier permits the manufacture, preparation, sale, supply or use of a prohibited drug in the place is a question of fact that depends on the circumstances. Based on the facts, by hiding the plastic bag containing heroin, the scales and scissors in his walk-​in-​robe, Cam has engaged in specific activities which permit the use of heroin in the house. Thus, Cam is likely to have committed a simple offence pursuant to MDAWA, s 5(1) (a). Ben, on the other hand, knows that Cam has a heroin addiction and has seen him use heroin in the house. Ben told Cam not to use heroin in the house again, otherwise Cam would need to live elsewhere. Further, Ben does not know that the house (that is, Cam’s walk-​in-​robe) is used to store heroin and the scales and scissors containing traces of heroin. Therefore, it may be difficult to argue that Ben permitted the house to be used for heroin usage. Did Ben knowingly permit the house to be used for heroin usage? It is a simple offence for an owner of premises to permit premises to be used for the usage of prohibited drugs: MDAWA, s 5(1)(b). As established above, heroin is a prohibited drug and Ben is the owner of the house. Ben knows that Cam has a heroin addiction and has seen him use heroin in the house previously. However, Ben told Cam not to use heroin in the house again, otherwise Cam would need to live elsewhere. Further, Ben does not know that the house (that is, Cam’s walk-​ in-​ robe) is used to store heroin and the scales and scissors containing traces of heroin. Therefore, it may be challenging to argue that Ben permitted the house to be used for heroin usage and that he has committed a simple offence under MDAWA, s 5(1)(b).

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What is the maximum penalty for the offence of permitting premises to be used for the use of heroin? The maximum penalty for a simple offence under MDAWA, s 5(1)(a) or (b), where none of the exceptions apply, is a fine of $3,000 and/​or three years’ imprisonment: MDAWA, s 34(1)(d). Note that MDAWA, s 5(1)(e) may also be relevant if Cam was smoking the heroin, because heroin is a prohibited drug, other than cannabis, that can be smoked. Did Ben and/​or Cam possess the heroin? Possessing a prohibited drug, such as heroin, is either a crime under MDAWA, s 6(1)(a) or a simple offence under MDAWA, s 6(2), depending on the quantity of the drug involved. According to MDAWA, s 3(1), “to possess” includes “to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb ‘to possess’ have correlative meanings”. This definition canvasses both actual and de facto possession, which will be considered and applied to Ben’s and Cam’s situation. Did Ben or Cam have actual possession of the two grams of heroin? A person is criminally responsible for possessing a dangerous drug where they have actual possession of the dangerous drug and they are aware of its existence: R v Clare [1994] 2 Qd R 619 at 637 per Fitzgerald P. Awareness extends to construc knowledge such that an accused person should have inquired, suspected or been ordinarily curious about the dangerous drug possessed: Tabe v The Queen (2005) 225 CLR 418 at [143] per Callinan and Heydon JJ. Further, Steytler P in Western Australia v R (2007) 33 WAR 483 at [67] stated: [I]‌t seems to me that knowledge (which might be equated with awareness, in this context) is established if there is proof of a belief by the accused in the likelihood (in the sense that there was a significant or real chance) that he or she had a prohibited drug in his or her physical possession or otherwise in his or her control or under his or her dominion.

Cam is a heroin addict and the heroin was found in his walk-​in-​robe, and thus he is likely to know (rather than simply be aware or, even more likely, that there was a significant or real chance) that he had possession of heroin. Arguably, Cam is in actual possession of the two grams of heroin because he knows that heroin is a dangerous drug and has tried to hide it from police in his walk-​in-​robe. He has also demonstrated an intention to exclude other people from actually

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The two grams of heroin was not found physically on Ben or Cam. However, it was found in a plastic bag in Cam’s walk-​in-​robe, which is in a house owned by Ben.

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possessing the heroin: see R v Thomas [1981] 6 A Crim R 66 at 67 per Lucas SPJ; R v Todd (1977) 6 A Crim R 105 at 106-​107 per Wanstall CJ, Matthews and Kelly JJ. Ben is likely to have an awareness (constructive knowledge) of the heroin because Ben knows his brother Cam had a heroin addiction, and had witnessed him using it in their home. Ben has disapproved of Cam using heroin. Ben had told Cam that he would need to find alternative accommodation if he caught him using it again. While Ben may have the necessary awareness, it is difficult to argue that he is in actual possession because the heroin was found in Cam’s walk-​in-​ robe, not in Ben’s walk-​in-​robe. Did Ben or Cam have de facto possession of the two grams of heroin? If the argument about actual possession is unsuccessful, then an argument about de facto possession may be available. De facto possession centres on whether the accused person exercises control and dominion over the dangerous drug: see R v Bridges [1986] 2 Qd R 391 at 395 per de Jersey J. The two grams of heroin was not found in a communal part of the house (for example, a kitchen or bathroom). Instead, the heroin was found in Cam’s walk-​ in-​ robe and Cam has control over this part of the house: see Lai v The Queen (1989) 42 A Crim R 460; Davies v Western Australia (2005) 30 WAR 31. Cam has laid a claim to the heroin by hiding it: see R v Solway [1984] 2 Qd R 75 at 77 per Demack J. While Ben owns the house, it would difficult to argue that he has control and dominion over Cam’s walk-​in-​robe, or of the heroin that is inside it. Thus, Cam is more likely to have de facto possession of the heroin than Ben. It is difficult to advocate that both Ben and Cam jointly have de facto possession of the heroin. This is a different scenario to that in Davies v Western Australia (2005) 30 WAR 31 at [37]-​[38] per Roberts-​Smith JA where a person allowed another person to store a drug at the first person’s home in return for cash, and also allowed the second person to access the drug. What is the maximum penalty for possessing heroin? On the basis that Cam had possession of the two grams of heroin, Cam is in possession of an amount of heroin “giving rise to presumption of intention to sell or supply” heroin; which is specified as two grams under MDAWA, Sch V, item 63. Therefore, Cam will be liable for possessing a dangerous drug with intent to sell or supply to another, under MDAWA, s 6(1)(a). The amount of heroin for purposes of drug trafficking is specified as 28 grams under MDAWA, Sch VII, item 6BC. Therefore, the two grams in Cam’s possession is not sufficient to constitute “trafficking” under MDAWA, s 32A. There is no amount of heroin specified under the “amounts of prohibited drugs determining court of trial” in MDAWA, Sch III, therefore all heroin offences must be dealt with on indictment: MDAWA, s 9(1)(a).

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Therefore, Cam is liable for the maximum penalty of a fine of $100,000 and/​or 25 years’ imprisonment: MDAWA, s 34(1)(aa). Did Cam use the heroin? Using a prohibited drug such as heroin is a simple offence under MDAWA, s 6(2). The term “use” is not defined in the MDAWA. The facts indicate that Cam has a heroin addiction and has used heroin. Ben, on the other hand, does not use heroin and disapproves of Cam using heroin. What is the maximum penalty for using heroin? On the basis that Cam used heroin and none of the exceptions apply, the maximum penalty for this simple offence is a fine of $2,000 and/​or two years’ imprisonment: MDAWA, s 34(1)(e). However, as established above, Cam is actually liable for the more serious crime of possession with intent to sell or supply to another under MDAWA, s 6(1)(a).

Critical thinking questions Should drug dependency be taken into determining the sentence for a drug offence?

account

when

2.

In Queensland, when an accused person raises mistake of fact in relation to a drug offence, why do you think the onus of proof changes? Why do you think this is different to the position in Western Australia?

3.

How do the drug offences and maximum penalties for the drug offences in Queensland compare with those in Western Australia? Why do you think there is a difference?

4.

How does the legislation pertaining to drug offences keep up with the development of novel drugs?

5.

Drawing on statistics, what are the most prevalent drug offences in Queensland and Western Australia?

6.

What are the strengths and weaknesses of the current definition of “possession”? How would you draft a statutory definition of “possession”?

7.

Can you think of any ways of supplying a drug that are not captured in the definition of “supply”?

8.

Should possession of a drug for personal consumption be criminalised? Justify your answer with reference to theories of criminal law such as social welfare, harm and individual autonomy.

9.

With reference to the current legislation and case law, construct a robust definition of “trafficking”.

10.

Should the legislation pertaining to drug offences be simplified? If so, how?

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1.

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Reading • K Burton, LexisNexis Questions and Answers: Criminal Law in Queensland and Western Australia (2nd ed, LexisNexis, Sydney, 2015) Ch 7.

Provocation, Diminished Responsibility, Extraordinary Emergency and Duress Learning outcomes .........................................................................   319 [9.10] Principles...............................................................................   320 [9.10] Introduction................................................................................  320 [9.20] O  nus of proving provocation, diminished responsibility, extraordinary emergency and compulsion/​duress..................................................  322 [9.30] Provocation................................................................................  324 [9.200] Diminished responsibility.............................................................  338 [9.230] Extraordinary emergency and compulsion/​duress..............................  340 [9.310] Elements toolbox................................................................   344 [9.320] Guide to problem solving....................................................   347 Revision questions .........................................................................   350 Problem questions .........................................................................   351 Answers to revision questions .......................................................   352 Answers to problem questions ......................................................   354 Critical thinking questions .............................................................   363 Readings .........................................................................................   363

Learning outcomes This chapter will enable you to: • Understand whether provocation is a defence or excuse, and determine who bears the onus of proof and to what standard • Identify a wrongful act or insult, and whether words by themselves are sufficient • Determine whether an ordinary person in the accused person’s shoes would have been deprived of the power of self-​control • Identify personal attributes or characteristics • Understand whether personal attributes or characteristics are taken into consideration in assessing the gravity of the provocation

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CHAPTER 9

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• Identify whether the objective test is measured by the ordinary person or reasonable person • Understand why age is taken into consideration in determining whether an ordinary person would have been deprived of the power of self-​control • Determine whether an accused person acted before there was time for the passion to cool • Determine whether the force used was proportionate to the provocation • Determine whether provocation can be raised if the force used is intended to cause grievous bodily harm or death • Identify the effect of provocation • Understand whether diminished responsibility in Queensland is a defence or excuse, and determine who bears the onus of proof and to what standard1 • Understand whether diminished responsibility in Queensland requires an abnormality of the mind • Determine whether an accused person had one of the three capacities substantially impaired for the purposes of diminished responsibility in Queensland • Identify the effect of diminished responsibility in Queensland • Understand whether extraordinary emergency is a defence or excuse, and determine who bears the onus of proof and to what standard • Determine when extraordinary emergency does not apply • Understand the ordinary person test as used in extraordinary emergency • Identify the effect of extraordinary emergency • Understand whether compulsion (Qld) or duress (WA) is a defence or excuse, and determine who bears the onus of proof and to what standard • Determine when a situation of compulsion or duress exists • Identify the effect of compulsion or duress

PRINCIPLES Introduction [9.10]  Diagram

9.1 indicates when provocation and diminished responsibility are open to an accused person. 1

There is no defence of diminished responsibility in Western Australia.

Diagram 9.1: When to apply provocation and diminished responsibility

Over time, provocation has been consistently labelled as a concession to human frailty, which recognises that an accused person who is provoked is less culpable, or morally to blame, than an accused person who deliberately acts in cold blood:  R v Pollock [2009] QCA 268 at [57] per Keane  JA, quoting Parker v R (1963) 111 CLR 610 at 651 per Windeyer J. The defence of provocation recognises “that there does occur a snapping point when an ordinary person may do something that he [or she] would not dream of

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doing under normal circumstances”: R v Miller [2009] 2 Qd R 86 at [26] per Chesterman JA, quoting trial judge AM Lyons J. In both Queensland and Western Australia, the excuse of provocation, under CCQ, s 269 or CCWA, s 246, is available where “unlawful assault”, as defined under CCQ, s 246 or CCWA, s 223, is an element of the offence. Queensland also offers the defence of killing on provocation, under CCQ, s 304, where “unlawful killing”, as defined under CCQ, s 291, is an element of the offence. However, an equivalent defence of killing on provocation is no longer available in Western Australia; “killing on provocation” under CCWA, s  281 was repealed on the 31st July 2008 and replaced with the offence of unlawful assault causing death under CCWA, s 281. Note that Western Australian case law before 31st July 2008 refers to killing on provocation under CCWA, s 281. In Queensland, in addition to killing on provocation, there are two additional partial defences available where “unlawful killing”, as defined under CCQ, s 291, is an element of the offence: diminished responsibility, under CCQ, s  304A, and killing for preservation in an abusive domestic relationship, under CCQ, s  304B. A  partial defence under CCQ, s  304B is available to an accused person where they have killed another person for preservation from death or grievous bodily harm in an abusive domestic relationship; the effect of this defence is to reduce murder to manslaughter: CCQ, s 304B(1). Western Australia does not offer equivalent defences of either diminished responsibility or killing for preservation in an abusive domestic relationship. In both Queensland and Western Australia, there is a justification for the use of force to prevent the repetition of insult provided under CCQ, s 270 or CCWA, s 247; CCWA, s 247 states: It is lawful for any person to use such force as is reasonably necessary to prevent the repetition of an act or insult of such a nature as to be provocation to him for an assault; provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

Onus of proving provocation, diminished responsibility, extraordinary emergency and compulsion/​duress [9.20] 

While provocation, pursuant to CCQ, s 269(1) or CCWA, s 246, is commonly labelled as a defence, it is actually an excuse. The differences between a defence and an excuse are critical to both the onus and standard of proof. Under CCQ, s 269 and CCWA, s 246, an accused person only bears the legal and evidentiary burden to raise some evidence of provocation; the

prosecution must negative the excuse beyond reasonable doubt. Note that an accused person only needs to raise evidence of the excuse and does not need to prove it on the balance of probabilities nor beyond reasonable doubt: Strong v Woolworths Ltd (2012) 246 CLR 182 at [50]-​[51] per Heydon  J; Woolmington v DPP [1935] AC 462. Thus, an accused person does not need to prove their innocence, which is commonly referred to as the “golden thread” of the criminal law: Woolmington v DPP [1935] AC 462. In Queensland, killing on provocation, pursuant to CCQ, s  304, is a partial defence, not an excuse nor a justification. On a charge of murder it is for the defence to prove that the accused is liable for manslaughter only: CCQ, s 304(9). Under a defence, the accused person not only bears the legal and evidentiary burden to raise some evidence of provocation but must also prove provocation on the balance of probabilities; the prosecution must negative it beyond reasonable doubt:  Strong v Woolworths Ltd (2012) 246 CLR 182 at [50]-​[51] per Heydon J; Woolmington v DPP [1935] AC 462.The defence of provocation under CCQ, s 304 is only a partial defence, because if successfully raised, it does not provide a complete acquittal, it only reduces murder to manslaughter: R v Miller [2009] 2 Qd R 86 at [21] per Chesterman JA, quoting trial judge AM Lyons J; Masciantonio v The Queen (1995) 183 CLR 58 at 66 per Brennan, Deane, Dawson and Gaudron JJ. According to McMurdo P in R v Rae [2006] QCA 207 at [37]: [T]‌ he prosecution will satisfy this onus [for the purpose of CCQ, s  304] by establishing beyond reasonable doubt any one of the following: that the deceased did or said nothing to cause provocation: or that the deceased’s statements or actions did not in fact cause the appellant to lose self ..control: or that the appellant was not acting in the heat of passion when he [or she] assaulted the deceased: or, … that an ordinary person in all the circumstances would not have lost control.

Similar to provocation, extraordinary emergency and compulsion or duress are excuses, which means that an accused person only needs to raise some evidence of duress or extraordinary emergency, while the prosecution needs to negative the excuse beyond reasonable doubt: R v GV [2006] QCA 394 at [23]. Diminished responsibility was introduced in Queensland in 1961, it is a partial defence, which means that an accused person bears the legal and evidentiary burden to prove diminished responsibility on the balance of probabilities, and the prosecution must negative the defence beyond reasonable doubt: Strong v Woolworths Ltd (2012) 246 CLR 182 at [50]-​[51] per Heydon J; Woolmington v DPP [1935] AC 462. Diminished responsibility is only a partial defence because if successfully raised it does not provide a complete acquittal, it only reduces murder to manslaughter: CCQ, s 304A.

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Provocation Assault and consent [9.30] 

Provocation on the basis of assault, under CCQ, s 269(1) or CCWA, s 246, is rationalised by the provocation eliminating the need for the accused to have obtained consent for the assault; which makes the provoked assault a lawful assault, “since an absence of consent is a requirement for an assault to be unlawful”: R v McCauley [2009] QDC 298 at [15] per McGill DCJ. Under this provocation, it is only the “unlawful assault” element of the offence which loses its criminal character, so this excuse is only available with offences where “unlawful assault” is a necessary element, such as common assault, assault occasioning bodily harm, serious assault, sexual assault, under CCQ, s 352(1)(a), or indecent assault, under CCWA, s 323. Furthermore, this excuse is not available with offences where “unlawful assault” is not a necessary element, such as assault with intent to rape, grievous bodily harm, unlawful wounding, unlawful striking causing death, murder or attempted murder: Kaporonovski v The Queen (1973) 133 CLR 209 at 217-​219 per McTiernan ACJ and Menzies J; Roche v The Queen [1988] WAR 278 at 279 per Burt CJ. Force intended to cause grievous bodily harm or death [9.40] 

Provocation on the basis of assault, under CCQ, s  269(1) or CCWA, s 246, is not available where an accused person uses force that is intended to cause grievous bodily harm or death. However, in Queensland, the defence of “killing on provocation”, pursuant to CCQ, s 304, may be available to the accused: Parker v The Queen (1963) 111 CLR 610 at 658-​659 per Windeyer J; Van Den Hoek v The Queen (1986) 161 CLR 158 at 166-​167 per Mason J. Since 2008, Western Australia no longer offers an equivalent defence of “killing on provocation”. Note that the definition of “provocation” in CCQ, s 268 is only con­ cerned with offences where assault is an element; therefore, this definition of “provocation” does not apply to the “sudden provocation” in CCQ, s 304, which is concerned with “unlawful killing”. The definition of “sudden provocation” is derived from the common law: Johnson v The Queen [1964] Qd R 1 at 3 per Philp J; Kaporonovski v The Queen (1973) 133 CLR 209 at 217-​219 per McTiernan ACJ for Menzies JJ.

Intention to cause grievous bodily harm or death can be inferred based on the circumstances and nature of the accused’s act; circumstances such as the force used, the number and severity of the wounds inflicted, the size and type of the weapon and the severity of the fatal wound: R v Miller [2009] 2 Qd R 86 at [17] per Chesterman JA. The accused cannot be acting with a pre-​formed premeditated intention, independent of the provocation, to cause grievous bodily harm or death; the intention must only be formed as a consequence of the “sudden provocation”, in the “heat of passion”: Johnson v The Queen (1976) 136 CLR 619 at 633-​634 per Barwick CJ. Directions to the jury on provocation [9.50] 

A judge should direct the jury on provocation whenever the version of events most favourable to the accused, suggested by the evidence, supports provocation; even when an accused person does not raise provocation themselves: Van Den Hoek v The Queen (1986) 161 CLR 158 at 161-​163 per Gibbs CJ for Wilson, Brennan and Deane JJ; R v Toomath [2009] QCA 369 at [18], [25] per Muir JA. The “ordinary person” two-​step test [9.60] 

The High Court outlined a two-​step test for examining provocation which involves both a subjective step and an objective step. The subjective step assesses the gravity of the provocation and the particular accused’s level of self-​control, with consideration given to all the accused’s personal attributes and characteristics, and the time between the provocation and the act. Ultimately, the first step assesses whether or not the accused was deprived of their self-​control when they acted: Stingel v The Queen (1990) 171 CLR 312 at 326-​327 per Mason CJ for the Court. The second step of the test assesses whether or not an ordinary person, of the same situation as the particular accused, would have been deprived of their self-​control and acted as the accused acted.The second element is assessed using an objective test which considers only the “ordinary” attributes and characteristics of the particular accused and the proportionality of the act compared to the gravity of the provocation to an ordinary person: Stingel v The Queen (1990) 171 CLR 312 at 324-​325, 332 per Mason CJ for the Court. These two tests are reflected in the two steps in Diagram 9.2.

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Diagram 9.2: Applying the ordinary person tests in provocation

Wrongful act or insult [9.70]  While

an “act” must be wrongful, meaning “offensive” or “inapposite”, an “insult” already implies offensiveness and does not require wrongfulness. Qualifying “insult” with the syntax “wrongful” would make this area of criminal law unjustifiably complex to apply. An insult

does not necessarily need to be wrongful, false or inapposite to amount to provocation. In actual fact, a rightful, truthful or apposite insult may be even more offensive and provocative than a wrongful insult: Stingel v The Queen (1990) 171 CLR 312 at 323-​324 per Mason CJ. An insult may occur by words, signs, acts or any other means: R v Bedelph (1980) 1 A Crim R 445 at 456 per Crawford J. The wrongful acts or insults may be a single and isolated act or insult or a series of acts and insults that accumulate to a combination of incidents that proved to be beyond endurance. The jury should consider the combination of all the relevant acts, insults and circumstances in their totality: Parker v The Queen (1963) 111 CLR 610 at 662 per Windeyer J; Moffa v R (1977) 138 CLR 601 at 606 per Barwick CJ, Gibbs J agreeing at 616. The passion and the emotion may be sudden or may have accumulated over a long period time; and there is no precise counting of that time: Parker v The Queen (1963) 111 CLR 610 at 662-​663 per Windeyer J. Regardless of whether it was a single act or a series of acts, the wrongful acts or insults that “provoked” the accused must occur in the presence of the accused person; the accused just being aware of, or being told by another about the act or insult will amount to nothing more than gossip, and will not be sufficient to raise provocation: Tough v Kay (1996) 87 A Crim R 278 at 281 per Heenan J; R v McCauley [2009] QDC 298 at [16] per McGill DCJ. The details of the wrongful act or insult should be based on a “credible narrative of events disclosing material that suggests provocation in law”; the jury should not be invited to speculate on the wrongful act or insult where there is no evidence of it or where it cannot be reasonably inferred from the facts, the accused must be tried by the evidence and the evidence alone: R v Rae [2006] QCA 207 at [71] per Douglas J; Lee Chun-​Chuen v R [1963] AC 220 at 232-​233 per Lord Devlin; Mancini v Director of Public Prosecutions [1942] AC 1 at 12 per Viscount Simon LC. Deprived of the power of self-​control [9.80] 

When examining provocation, the first element that must be answered is whether or not the accused was actually deprived of their power of self-​control when they acted; did the accused actually “snap” and then act while still “snapped”? Even for an ordinary person, there does occur a snapping point when they may do something that they would not dream of doing under normal circumstances: R v Miller [2009] 2 Qd R 86 at [26] per Chesterman JA, quoting trial judge AM Lyons J.

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Traditionally, being deprived of self-​ control was associated with uncontrollable anger or resentment. However, a modern construction of being deprived of the power of self-​control is more akin to a sudden and temporary loss of self-​control; an onset of ungovernable passion: Van Den Hoek v The Queen (1986) 161 CLR 158 at 166-​167 per Mason J; Parker v The Queen (1963) 111 CLR 610 at 662 per Windeyer J. Where a wrongful act or insult causes fear, panic, anger or resentment, provocation is still available to an accused person: Van Den Hoek v The Queen (1986) 161 CLR 158 at 167-​168 per Mason J. As McMurdo P stated, the “expression ‘heat of passion’ has a melodramatic 19th century tone which is unfamiliar to 21st century jurors”: R v Miller [2009] 2 Qd R 86 at [3]‌. A  person’s understanding of the term “heat of passion” is based on knowledge and education rather than personal experience, so jurors should be instructed on the term’s meaning; the term signifies extreme emotion of some sort, such as anger or fear of great intensity: R v Miller [2009] 2 Qd R 86 at [55] per Chesterman J. The accused cannot be acting with a pre-​formed premeditated intention to take life. The accused cannot claim to have acted deprived of self-​control while they were also acting pursuant to a pre-​formed premeditated intention to kill or a prior understanding or arrangement with another that, together, they will kill a third person: Osland v The Queen (1998) 197 CLR 316 at 331 per Gaudron and Gummow JJ; Johnson v The Queen (1976) 136 CLR 619 at 633-​634 per Barwick CJ. Assessing the gravity of the provocation to the particular accused [9.90] 

During the subjective step of the “ordinary person” test, the gravity, meaning the implications, context, content and extent, of the wrongful acts or insults is assessed subjectively, from the perspective of the particular accused. Special consideration is given to any of the particular accused’s personal attributes and characteristics, both “ordinary” and “extraordinary”, that may affect the understanding, implications, hurtfulness and gravity of the provocation: Stingel v The Queen (1990) 171 CLR 312 at 326-​327 per Mason CJ for the Court. These personal attributes and characteristics are considered to ensure that the full gravity and impact of the wrongful acts or insults is felt and understood: R v Miller [2009] 2 Qd R 86 at [40] per Chesterman JA. Such attributes and characteristics may mean that the particular accused reacted with “enhanced keenness” or “greater fury” compared to someone without

those personal attributes and characteristics: R v Miller [2009] 2 Qd R 86 at [39] per Chesterman JA. When assessing the gravity of racial insults, racial taunts or comments of a derogatory nature, to the particular accused, expert evidence may be required; especially if the tribunal of fact includes persons who may not be members of groups likely to be subject to racial taunts: Verhoeven v The Queen (1998) 101 A Crim R 24 at 30-​31 per Wheeler J. Expert evidence may also be required in cases of domestic violence to give the juror’s a better understanding of the accused’s perception of a wrongful act, insult, “trigger” or “last straw”; or their belief and apprehension of potential death or grievous bodily harm; the accused may have a heightened arousal or awareness of danger: Osland v The Queen (1998) 197 CLR 316 at 337-​338 [55]-​[58] per Gaudron J for Gaudron and Gummow JJ. In cases of an unwanted sexual advance, the accused’s history of violence or sexual conduct should be considered, and their history does not necessarily need to be between the particular person’s involved; it may be from the accused’s past, which causes the accused to have a special sensitivity to unwanted sexual advances from any other person: Greene v The Queen (1997) 191 CLR 334 at 369 per McHugh J. Personal attributes and characteristics [9.100] In Stingel v The Queen (1990) 171 CLR 312 at 326, 332 per Mason

CJ for the Court, the particular accused’s, “ordinary” and “extraordinary”, personal attributes and characteristics that should be considered during the subjective step, because they may affect the implications, hurtfulness and gravity of the provocation to the particular accused, include: • age; • sex; • race and ethnic or cultural background; • physical features; • personal relationships; • past history;

• extraordinary excitability; • extraordinary pugnacity or aggressiveness; • extraordinary obsessive jealousy and infatuation; • extraordinary mental instability or weakness;

Time [9.110] 

The time between the provocation and the reaction to the provocation is an important element of the excuses under CCQ, s 269(1)

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or CCWA, s 246, and the defence under CCQ, s 304. Under all three the accused person must act upon the provocation before there is time for the passion to cool. CCQ, s 269(1) and CCWA, s 246 both require the accused to act upon the provocation “on the sudden”. However, CCQ, s 304 requires the accused person’s act to be caused by “sudden provocation”. To act “on the sudden” or on “sudden provocation” in the heat of passion is not the same as acting in the heat of a sudden passion; only the provocation and the act must be sudden, the passion and the emotion may be sudden, or may have accumulated over a long period of time; and there is no precise counting of that time: Parker v The Queen (1963) 111 CLR 610 at 662-​663 per Windeyer J. The courts have not drawn a clear dividing line between whether an accused person has acted upon the wrongful act or insult on the sudden, before there is time for the passion to cool, or acted upon deliberate revenge. The shorter the time between the provocation and the accused person’s acts, the more likely the accused person has acted on the sudden and before there is time for the passion to cool, than out of deliberate and cold blooded revenge: R v Chhay (1994) 72 A  Crim R 1 at 10 per Gleeson CJ. There is no provocation where an accused person has time to mull things over or brood, the accused must act quickly to the provocation; there must be a causal connection or some proximity between the conduct of other and the loss of self-​control by the accused: R v Miller [2009] 2 Qd R 86 at [27], [56] per Chesterman JA. Self-​control of an “ordinary person” [9.120] 

After applying the subjective test to determine whether or not the particular accused had lost their self-​control when they acted, an objective test, under CCQ, s 268 or CCWA, s 245, determines whether or not an ordinary person, the same age and in the same situation as the particular accused, would have been likely to have lost their self-​control, and acted as the accused acted: R v Miller [2009] 2 Qd R 86 at [39] per Chesterman JA. The objective test of the ordinary person under CCQ, s 304 is less stringent, and merely requires that an ordinary person, the same age and in the same situation as the particular accused, could have lost their self-​control, and acted as the accused acted: Masciantonio v The Queen (1995) 183 CLR 58 at 69 per Brennan J for Deane, Dawson and Gaudron JJ; Moffa v The Queen (1977) 138 CLR 601 at 613 per Gibbs J; Stingel v The Queen (1990) 171 CLR 312 at 329, 335.

A critical element of provocation is that the accused’s self-​control was not completely lost or completely deprived, but just partially lost or deprived to such an extent and degree as to explain their unreasonable and extraordinary actions: Stingel v The Queen (1990) 171 CLR 312 at 329. The loss of self-​ control under provocation is not the result of involuntariness or automatism, or being “completely deprived” of self-​control; the accused still intended to cause the harm, but the intention is attributable to the accused’s emotional response to the provocation:  R v Pollock [2009] QCA 268 at [57] per Keane JA; Johnson v The Queen (1976) 136 CLR 619 at 635 per Barwick CJ. This objective test, assessed against the self-​control of an ordinary person, is designed to ensure that this defence is only available to those persons whose reactions show a level of self-​control falling within the ordinary or common range of human temperaments and is not available to person’s with “extraordinary” self-​control; provocation is no defence for the lack of the minimum level of “ordinary” self-​control: Stingel v The Queen (1990) 171 CLR 312 at 328 quoting Neasey J in Kearnan v the Queen (Unreported, Tasmanian Court of Criminal Appeal, 1968) 80/​1968. The High Court acknowledged in Stingel v The Queen (1990) 171 CLR 312 at 329 that some groups in the community may have a power of control that is higher or lower than the average power; nevertheless, all members of the community are expected to meet the lowest level of self-​control that can be attributed to an ordinary person; the minimum level of “ordinary” self-​control. While the “ordinary person” test will not apply to all persons who act unreasonably, but rather only to those whose reactions fall below the ordinary or common range of self-​control; an “ordinary” person is preferred over a “reasonable” person because provocation refers to a person who has lost self-​control to the point where they may have intentionally wounded or killed another person without the need to preserve themselves, a reasonable person would never act in such a manner: Stingel v The Queen (1990) 171 CLR 312 at 327-​328. With regards to provocation, a “reasonable” person does not refer to a person who acts reasonably, but to a person who has reasonable powers of self-​control. Thus, the notion of an “ordinary” person may be more appropriate: Moffa v The Queen (1977) 138 CLR 601 at 613 per Gibbs J; Stingel v The Queen (1990) 171 CLR 312 at 328. The assumption underlying the ordinary person test is not that murder may be an ordinary or reasonable response to a wrongful act or insult; but that the wrongful act or insult was of such a gravity as to provoke an otherwise ordinary person to lose their self-​control to such an extent as to act in an unreasonable and extraordinary manner, resulting in them unlawfully killing the other: Stingel v The Queen (1990) 171 CLR 312 at 329.

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The High Court has also stated that caution must be taken when projecting the hypothetical “ordinary person” into the position of the accused at the time of the act. The self-​control of the hypothetical “ordinary person” must remain exactly that, “ordinary”. It is neither an invitation for the juror to substitute himself or herself, with his or her individual strengths and weaknesses, into the position, or “shoes”, of the accused nor is it a reference to a person of precisely identifiable powers of self-​control or to the powers of self-​control of “the average person”: Stingel v The Queen (1990) 171 CLR 312 at 327-​328, 331-​332. A uniform standard of “ordinary” self-​control [9.130] 

The High Court stated that during the second element of the test, the accused persons are not judged on a fluctuating standard of self-​control, but rather an objective standard that is based on equality and individual responsibility. All persons are held to the same standard notwithstanding their distinctive personality traits and varying capacities to achieve the ordinary standard of self-​control. Only the “ordinary” personal attributes and characteristics that may affect the implications, hurtfulness and gravity of the provocation are considered; any “extraordinary” personal attributes and characteristics, that may make the accused a person with “extraordinary” powers of self-​ control, are not considered: Stingel v The Queen (1990) 171 CLR 312 at 324 per Mason CJ for the Court, quoting Reg v Hill [1986] 1 SCR 313 at 343 per Wilson J. The “ordinary person” test is from the perspective of a truly hypothetical “ordinary person”, unaffected by any of the particular accused’s “extraordinary” personal attributes or characteristics; thus, the principle of an “ordinary person” provides an objective standard about the minimum powers of self-​control: Stingel v The Queen (1990) 171 CLR 312 at 326-​327, 332. However, this does not mean that the ordinary person objective test is applied in a “vacuum”; consideration is still given to the accused’s “ordinary” personal characteristics, attributes or history which serve to identify the implications and to affect the gravity of the particular wrongful act or insult to an “ordinary person”: Stingel v The Queen (1990) 171 CLR 312 at 324 per Mason CJ for the Court This approach was followed in R v Miller [2009] 2 Qd R 86, where at [39] per Chesterman  JA, where it was stated that the “ordinary person” in the second element of the test must be notionally supplied with the “ordinary” personal characteristics or attributes of the particular accused that impacted on the gravity and hurtfulness of the provocation. It was also stated in R v Miller [2009] 2 Qd R 86 at [26] per Chesterman JA quoting

trial judge AM Lyons J, that the “ordinary person” in the second element of the test must be attributed with not only the same age as the particular accused but also the same sex. In Stingel v The Queen, the High Court gave two reasons why the age of the particular accused person, meaning their stage of psychological development and maturity, was the only personal attribute or characteristic attributed to the “ordinary person” during that particular case. Firstly, because developing through childhood to maturity is common to everyone, so it has an aspect of ordinariness: Stingel v The Queen (1990) 171 CLR 312 at 330. Secondly, because the very concept of normality, with regards to the things which pertain to: foresight and prudence; experience; understanding of causes and effects; balance of judgment and thoughtfulness, is a concept of rising levels until “years of discretion” are attained. Note that the law does not fix any particular arbitrarily age to the “years of discretion”; tribunals of fact may well give effect to different views as to the age at which normal adult foresight and prudence are reasonably to be expected in relation to particular sets of circumstances: Stingel v The Queen (1990) 171 CLR 312 at 330 quoting McHale v Watson (1966) 115 CLR 199 at 213-​214 per Kitto J.

 

Assessing the gravity of the provocation to an ordinary person [9.140] 

During the objective step of the “ordinary person” test, the gravity of the wrongful acts or insults is assessed objectively, from the perspective

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of an ordinary person. Special consideration is only given to the accused’s age/​maturity and “ordinary” personal characteristics, attributes and history that may affect the understanding, implications, hurtfulness and gravity of the provocation: Stingel v The Queen (1990) 171 CLR 312 at 326-​327 per Mason CJ for the Court. It is unlikely that an unwitting provoker’s actions, that were not intended to provoke the accused, could he held to have provoked an ordinary person. This is especially the case if the provoker was actually actively trying to avoid the accused, but the accused tracked the provoker down; such as the provoker’s actions occurring in a private setting like a private house, bedroom or in a car parked in a secluded location late at night: R v Stevens [1989] 2 Qd R 386 at 390 per Demack J; Stingel v The Queen (1990) 171 CLR 312 at 335-​336. An alternative case where the provoker may be unwitting, and not intending to provoke, is if the provoker was unaware and did not understand the gravity of the provocation to the particular accused. In such a case, it is important to examine the message which the provoker was actually intending to convey, which will depend on the context, the provoker’s degree of knowledge of the accused’s personal attributes, and how the provocation would be understood by an ordinary person: Verhoeven v The Queen (1998) 101 A Crim R 24 at 36-​37 per Wheeler J. Words alone are sufficient to amount to an insult and may amount to provocation: R v Bedelph (1980) 1 A  Crim R 445 at 448 per Green  CJ. However, under CCQ, s 304(2), insulting or upsetting words alone are not sufficient to provoke an unlawful killing, unless the words in such a case are of an extreme or exceptional character such as where there is a history of violence: CCQ, s 304(7). Furthermore, when assessing the gravity of racial insults, racial taunts or comments of a derogatory nature, to an ordinary person, it is important to try to determine what the racial taunt is really “saying”; giving consideration to the notorious facts, to context, to well understood community standards and to the well understood negative stereotypes and ideas that such taunts may invoke. If this approach is taken, racial taunts will vary in their offensiveness, but the variation will depend upon general standards and experiences and not any particular experience or sensitivity of the individual taunted: Verhoeven v The Queen (1998) 101 A Crim R 24 at 30-​31, 38 per Wheeler J. A facial expression alone, even if smug and arrogant, will not amount to provocation of an ordinary person: Tough v Kay (1996) 87 A Crim R 278 at 281 per Heenan J.

Provocation is not available to an accused person if they committed an assault as the consequence of an incitement from another that was only given to furnish an excuse: CCQ, 268(4); CCWA, s 245. Unwanted sexual advance [9.150] 

An unwanted sexual advance may amount to provocation under CCQ, s 269(1) or CCWA, s 246; however, an unwanted sexual advance will not amount to provocation under CCQ, s 304, killing on provocation; unless there are exceptional circumstances, such as a history of violence or sexual conduct: CCQ, s 304(8).The history of violence or sexual conduct does not necessarily need to be between the particular person’s involved; it may be from the accused’s past and causes the accused to have a special sensitivity to unwanted sexual advances from any other person.The accused’s history may aggravate the provocation, but the accused may still be considered to have shown the self-​control of an ordinary person; the accused may be considered a person with the minimum powers of self-​control of an ordinary person who is subjected to unwanted sexual advances: Greene v The Queen (1997) 191 CLR 334 at 369 per McHugh J. For a contemporary example of provocation in the context of an unwanted homosexual advance, refer to Lindsay v The Queen (2015) 255 CLR 272, which went on appeal from South Australia, and where The High Court noted that excluding provocation from the jury encroached on their province. However, the Court also acknowledged that “a jury might too easily accept a suggestion of provocation out of mercy or sentiment; a similar distrust of the jury informs some of the more recent criticism of the partial defence of provocation as lending itself to verdicts that reflect gender or heterosexist bias” (footnotes omitted): Lindsay v The Queen (2015) 255 CLR 272 at [22] per French CJ, Kiefel, Bell and Keane JJ. Domestic relationships [9.160] 

Changes to the nature of a domestic relationship, such as ending the relationship, will not amount to provocation under CCQ, s 304, killing on provocation; unless there are exceptional circumstances, such as a history of violence: CCQ, s 304(7). A confession of adultery, even a sudden confession to a person unprepared for it, is never sufficient, without more, to sustain this defence: Buttigieg v The Queen (1993) 69 A Crim R 21 at 37 per Fitzgerald P, Pincus JA and Thomas J; Moffa v R (1977) 138 CLR 601 at 605 per Barwick CJ, Gibbs J

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agreeing at 616-​617, Stephen J agreeing at 619; Holmes v DPP [1946] AC 588 per Viscount Simon. “Battered woman syndrome” is not an excuse or defence in its own right. It is not limited to female victims or to wives. It can occur to persons of any gender, persons in same sex relationships or to person’s before or after marriage: Osland v The Queen (1998) 197 CLR 316 at 371-​372 [159]-​[160] per Kirby  J. Expert evidence on battered woman syndrome may be relevant to the provocation; as it may be required to give relevant insight into matters that appear to be of slight significance to the inexperienced “ordinary person”, but they are actually significant matters to the battered person, who has a heightened arousal or awareness of danger. These matters may have a significant impact on the battered person’s reasonable perception of a wrongful act, insult, “trigger” or “last straw”; or their reasonable belief and apprehension of death or grievous bodily harm: Osland v The Queen (1998) 197 CLR 316 at 337-​338 [55]-​ [58] per Gaudron and Gummow JJ. Where there is a history of abuse, threats of future abuse may be sufficient to cause an ordinary person to have a reasonable apprehension of death or grievous bodily harm; there is no need for the accused to wait for the next event of actual of abuse for that abuse to be regarded as a triggering event for the reasonable apprehension: R v Secretary (1996) 107 NTR 1 at 10-​11 per Angel J for Mildren J. “Ordinary person” attributes and characteristics [9.170] The

“ordinary” attributes and characteristics that should be considered during the objective step, because they may affect the understanding, implications, hurtfulness and gravity of the provocation to an ordinary person, include: • age of the particular accused: Stingel v The Queen (1990) 171 CLR 312 at 326-​327. • sex, gender, race and ethnic or cultural background of the particular accused: R v Miller [2009] 2 Qd R 86, where at [39] per Chesterman JA; Verhoeven v The Queen (1998) 101 A  Crim R 24 at 30-​31, 38 per Wheeler J. • notorious facts and context of the provocation: Stingel v The Queen (1990) 171 CLR 312 at 335-​336; Verhoeven v The Queen (1998) 101 A  Crim R 24 at 30-​31, 38 per Wheeler J.

• the particular accused’s history as a victim of domestic violence or abuse: CCQ, s 304(7); Osland v The Queen (1998) 197 CLR 316 at 337-​ 338 [55]-​[58] per Gaudron and Gummow JJ. • the particular accused’s history as a victim of violence or sexual conduct: CCQ, s 304(8); Greene v The Queen (1997) 191 CLR 334 at 369 per McHugh J. • well understood community standards, stereotypes and ideas: Verhoeven v The Queen (1998) 101 A Crim R 24 at 30-​31, 38 per Wheeler J. • the provoker’s intentions and their degree of knowledge of the accused’s personal attributes: R v Stevens [1989] 2 Qd R 386 at 390 per Demack J; Stingel v The Queen (1990) 171 CLR 312 at 335-​336; Verhoeven v The Queen (1998) 101 A Crim R 24 at 36-​37 per Wheeler J. Proportionality [9.180] 

Proportionality is a critical element to establishing provocation under CCQ, s  269(1) or CCWA, s  246; and even though it is not an express element of killing on provocation, under CCQ, s  304, it is taken into account when assessing whether or not an “ordinary person” would have been deprived of their powers of self-​control and acted in the same manner as the accused person acted: Johnson v The Queen (1976) 136 CLR 619 at 636 per Barwick CJ. The accused’s actions must be proportional with the provocation; the accused’s retaliation must be commensurate with the provocation to be considered a reasonable retaliation of an “ordinary person”: Johnson v The Queen (1976) 136 CLR 619 at 630 per Barwick CJ, quoting trial judge Taylor J. The act of provocation must have been an act which might heat the blood of an ordinary person to a proportionate degree of resentment and keep it boiling to the moment of the commission of the fatal act. The proportion of the fatal act to the provocation is part of the material on which the jury should consider whether the provocation offered the accused was such as would have caused an ordinary man, placed in all the circumstances in which the accused stood to have lost his self-​control to the point of doing an act of the kind and degree of that by which the accused killed the deceased: Johnson v The Queen (1976) 136 CLR 619 at 636 per Barwick CJ. Proportionality is an objective test, not determined by the accused’s opinions or “concessions”; it is determined by identifying the causal connection or proximity between the actual force used by an accused person and the gravity of the wrongful act or insult, as elevated by reference to the

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characteristics of the accused: Verhoeven v The Queen (1998) 101 A  Crim R 24 at 27, 32, 37 per Wheeler J. However, when examining the proportionality, the gravity of the provocation is not subjectively assessed, it is objectively assessed based on the gravity to an ordinary person; with consideration given to the intention of the provoker and to what degree the provoker actually intended to provoke the accused; it does not require a subjective assessment where the hypersensitivity, or idiosyncratic beliefs, or uncommunicated views and experiences of the accused are taken into account: Verhoeven v The Queen (1998) 101 A Crim R 24 at 32, 36-​38 per Wheeler J. In assessing the actual force used, a court should consider the: • nature and manner of force; • degree, extent and duration of force; and • circumstances, including the location in which force is used: R v Toomath [2009] QCA 369 at [29] per Muir JA. Effect of provocation [9.190] 

Where provocation is successfully raised under CCQ, s  269 or CCWA, s  246, it has the effect of a complete acquittal; however, where provocation is successfully raised under CCQ, s 304, it only has the effect of reducing murder to manslaughter.

Diminished responsibility Abnormality of the mind [9.200] 

An “abnormality of the mind”, arising from arrested or retarded development, inherent cause, disease or injury, is critical to the defence of diminished responsibility under CCQ, s 304A. It differs from “mental disease or natural mental infirmity”, which is an element of insanity: CCQ, s 27(1); CCWA, s 27(1). Western Australia does not offer an equivalent defence of diminished responsibility. People in the community vary greatly in intelligence, and disposition, in their capacity to reason, in the depth and intensity of their emotions, in their excitability, and their capacity to exercise self-​restraint: R v Rolph [1962] Qd R 262 at [66] per Hanger J. An abnormal state of mind cannot be caused by prejudice, anger, temper, jealousy, religious influences, political influences or intoxication: R v Whitworth [1989] 1 Qd R 437 at 457 per Derrington J.

Three capacities [9.210] 

To successfully argue “diminished responsibility”, an accused person needs to prove that they have had one of the three capacities substantially impaired. The three capacities are that the accused: 1

understands what they are doing; or

2

controls their actions; or

3

knows that they ought not do the act or make the omission.

There is no scientific precise test that establishes “substantial impairment”, it is a question of human conduct and that is why juries are needed to answer this question: R v Lloyd [1967] 1 QB 175 at 177 per Edmund  Davies  J, quoting R v Simcox (1964) unreported trial judge. “Substantial impairment” requires less than insanity, which is total deprivation; the term “substantial” does not mean total or destroyed, but is still more than just trivial or minimal, it is something in between: R v Lloyd [1967] 1 QB 175 at 176 per Edmund  Davies  J, quoting trial judge Ashworth  J. On a continuum, “substantial” falls closer to the total or destroyed end rather than the trivial or minimal end. In Western Australia, McLure  P canvassed the differences between the two capacities of “understanding” and “knowing”, as they relate to murder in Evans v The State of Western Australia [2010] WASCA 34 at [31]: [T]‌he real issue for the jury in this case was whether the appellant had established on the balance of probabilities that at the time of the killing his mental impairment resulted in a complete incapacity to reason as to what is right or wrong according to ordinary standards. The term “know” means “understand”, “appreciate” or “comprehend”. An incapacity to reason rationally as to what is right or wrong according to ordinary standards prevents a person from understanding that he (or she) ought not do the act. Knowledge (short of understanding) that to kill is punishable by law does not prevent such a finding. Nor is a finding of incapacity dependent upon proof of a positive belief in the rightness of the conduct. Whether an act is right or wrong is determined by reference to an objective standard. The question is whether the appellant had a complete incapacity to reason as to what was, by that objective standard, right or wrong.

Effect of diminished responsibility [9.220] 

If an accused person is successful in arguing diminished responsibility, the effect of the defence is to reduce murder to manslaughter: CCQ, s 304A(1).

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Extraordinary emergency and compulsion/​ duress [9.230] The

excuses of extraordinary emergency and duress (or compulsion, as it is termed in Queensland) are closely related; both deal with situations where the accused was faced with a threat of harm which compels them to commit an offence. In the case of an extraordinary emergency, the threat is a general threat, not a targeted threat like in compulsion/​duress, provocation or self-​defence; and the general threat is either from another person or arises because of the circumstances in which the accused finds themselves, such as: a person drives dangerously to avoid the general threat caused by another driver driving dangerously; or a person drives dangerously to get a fatally injured person to the hospital; or the accused acted to avoid the general threat of starvation. In the case of compulsion/​duress, the threat is a targeted threat from another person threatening to harm the accused if they do not do the unlawful act, such as a person points a gun at the accused and threatens to shoot the accused if they do not assault another person. Although in both cases, extraordinary emergency or compulsion/​duress, the accused may feel compelled to act because of a threat, this is not a case of involuntariness or automatism; the act is still a willed act, the accused is still choosing to act in a certain way.These excuses are also closely related to self-​defence because the accused acts for the purpose of avoiding harm to themselves, or to some other person; however, they differ from self-​defence because with these excuses it is not the attacker who is harmed but an innocent person. Extraordinary emergency [9.240] 

Under extraordinary emergency the accused felt compelled to act because of a general threat, not necessarily targeted at the accused. An “extraordinary emergency” is “unexpected or sudden”, and “a situation of ‘extreme gravity and abnormal or unusual danger’ ”; a “sudden emergency’ ” “that comes upon the accused unexpectedly, catching her or him off-​guard” (references omitted): Johnson v The State of Western Australia (2009) 40 WAR 116 at [60] per Owen and Miller JJA. Extraordinary emergency has been labelled as a “residual defence to protect the ‘morally innocent’ ”: R v GV [2006] QCA 394 at [26] per Jerrard JA, Jones and Atkinson JJ. In Western Australia the excuse applies even if there is no sudden or extraordinary emergency, provided that the accused believes that such circumstances exist and there are reasonable grounds for

that belief:  CCWA, s  25(3). In Queensland, the excuse of extraordinary emergencies, under CCQ, s  25, may still be available even if there is no sudden or extraordinary emergency, by working with mistake of fact under CCQ, s 24; where an accused person honestly and reasonably, but mistakenly, believes in the existence of a state of emergency: R v GV [2009] QCA 394 at [28] per Jerrard JA, Jones and Atkinson JJ. A classic example of extraordinary emergency is illustrated by R v Dudley and Stevens (1844) 14 QBD 273 DC, where two sailors lost at sea, Dudley and Stevens, who had no food for about three weeks and no real prospect of rescue, killed and ate a cabin boy, Richard Parker. A few days later the two sailors were rescued, and upon return to England they were both charged with murder; but the charge was downgraded to manslaughter on appeal. In a more contemporary example, extraordinary emergency was available to the jury where a terrified person drove a car dangerously, causing death in order to avoid the risk of harm from another driver: R v GV [2006] QCA 394 at [29]; see also R v Warner [1980] Qd R 207. Generally speaking, where compulsion, provocation and self-​ defence apply to a factual scenario, extraordinary emergency will not be applied, which explains why there is limited case law in respect of extraordinary General (Qld) [2009] QCA emergency. In R v Lacey; Ex parte Attorney-​ 274 at [36] per de Jersey CJ, Keane, Muir and Chesterman JJA stated that extraordinary emergency is not available where self-​ defence is relevant on the facts. In contrast, McMurdo P (in dissent) highlighted that there may be a case (although the one in question was not one of them) where extraordinary emergency is available in addition to compulsion, provocation or self-​defence, and that, in such a case, a trial judge has an obligation to direct the jury in respect of CCQ, s 25 or CCWA, s 25: R v Lacey; Ex parte Attorney-​General (Qld) [2009] QCA 274 at [213] per McMurdo P. Note that where the extraordinary emergency is a medical situation, a more appropriate excuse may be found in CCQ, s 282 or CCWA, s 259; which both provide that a person is not criminally responsible for providing reasonable surgical or medical treatment to a person, for that person’s benefit, if it is done in good faith and with reasonable skill and care. Ordinary person [9.250] 

Similar to provocation, extraordinary emergency in Queensland is established by an ordinary person test, an ordinary person possessing ordinary power of self-​control: CCQ, s 25. Even though the words “ordinary person” do not appear in the Western Australian provision, the excuse will only be available where the act or omission of the accused is a reasonable

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response to the emergency in the particular situation the accused believes they are in at the time: CCWA, s 25(3)(b).There must be reasonable grounds for this belief, which imports an objective, “ordinary person”, standard into this test: CCWA, s 25(3)(c). The issue is whether an ordinary person with an ordinary power of self-​control could have reasonably been expected to act otherwise. Unlike provocation, in the case of extraordinary emergency there is no subjective step to the ordinary person test used; only the objective step is required. The accused person’s age is a personal characteristic or attribute taken into account when applying this objective test: Dudley v Ballantyne [1998] WASCA 169 per Owen J; [1998] Library 980372 at 10-​11. The attributes and characteristics that should be considered during the objective step, because they may affect the understanding of the gravity of the emergency to an ordinary person, include: • age of the particular accused: Stingel v The Queen (1990) 171 CLR 312 at 326-​327; • sex, gender, race and ethnic or cultural background of the particular accused: R v Miller [2009] 2 Qd R 86, where at [39] per Chesterman JA; Verhoeven v The Queen (1998) 101 A Crim R 24 at 30-​31, 38 per Wheeler J; • notorious facts and context of the emergency: Stingel v The Queen (1990) 171 CLR 312 at 335-​336; Verhoeven v The Queen (1998) 101 A Crim R 24 at 30-​31, 38 per Wheeler J; • the particular accused’s history as a victim of domestic violence or abuse: Osland v The Queen (1998) 197 CLR 316 at 337-​338 [55]-​[58] per Gaudron and Gummow JJ; • the particular accused’s history as a victim of violence or sexual conduct: Greene v The Queen (1997) 191 CLR 334 at 369 per McHugh J; • well understood community standards, stereotypes and ideas: Verhoeven v The Queen (1998) 101 A Crim R 24 at 30-​31, 38 per Wheeler J; and • the provoker’s (“person causing the emergency”) intentions and their degree of knowledge of the accused’s personal attributes: R v Stevens [1989] 2 Qd R 386 at 390 per Demack J; Stingel v The Queen (1990) 171 CLR 312 at 335-​ 336; Verhoeven v The Queen (1998) 101 A Crim R 24 at 36-​37 per Wheeler J. Effect of extraordinary emergency [9.260] 

If an accused person is successful in raising extraordinary emergency, the effect of the excuse is a complete acquittal:  CCQ, s  25; CCWA, s 25.

Compulsion/​duress Queensland [9.270] 

Under compulsion/​ duress the accused felt compelled to act because of a targeted threat, targeted at the accused. In Queensland, the excuse of compulsion applies where actual and unlawful violence has been threatened to the accused, or the threat has been made in her or his presence, and the accused does an act which is reasonably necessary in order to resist the threat: CCQ, s 31(1)(c). The conditions for the application of this excuse are that the accused does the act, or omits to do something, in order to save her-​or himself, or some other person or property, from a serious harm or detriment which the person making the threat is in a position to carry out. The accused must believe on reasonable grounds that doing the act or making the omission is the only way for them or the other person to avoid the threat being carried out. The act or omission of the accused must also be reasonably proportionate to the harm or detriment threatened: CCQ, s 31(1)(d). The excuse does not apply to the offence of murder, or an offence of grievous bodily harm, or an offence of intending to do grievous bodily harm. The excuse is also excluded where the accused entered into an unlawful association or conspiracy which rendered her or him liable to such threats: CCQ, s 31(2). Western Australia [9.280] 

In Western Australia, the excuse of duress is provided in CCWA, s 32. It applies where an accused believes that a threat has been made, and that the threat will be carried out unless an offence is committed. In other words, the accused believes that it is necessary to do the act or make the omission to prevent the threat being carried out. The act or omission of the accused must also be a reasonable response to the particular circumstances the accused believes they are in at the time.The requirement that the accused has reasonable grounds for their belief imports an objective standard into this test.Therefore, if an ordinary and reasonable person in the shoes of the accused could not have held that belief, then the excuse will fail. The excuse will also fail if the accused was voluntarily associating with the person making the threat for the purposes of prosecuting an unlawful purpose in which it could be foreseen that such a threat would be made, or for the purposes of doing something similar to that which the accused actually does under the threat. In Western Australia, a person is not criminally responsible for any offence if they were acting under duress.

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Ordinary person [9.290] 

Even though the words “ordinary person” do not appear in either the Queensland or Western Australian provisions, the excuse will only be available where the act or omission of the accused is a reasonable response to the compulsion/​duress in the particular situation the accused believes they are in at the time: CCQ, s 31(1)(d); CCWA, s 32(2). There must be reasonable grounds for this belief, which imports an objective, “ordinary person”, standard into this test: CCQ, s 31(1)(d)(ii); CCWA, s 32(2)(c). The issue is whether an ordinary person with an ordinary power of self-​control could have reasonably been expected to act otherwise. Unlike provocation, but analogous to extraordinary emergency, in the case of compulsion/​duress, there is no subjective step to the ordinary person test used; only the objective step is required. Effect of compulsion/​duress [9.300] 

If an accused person is successful in raising compulsion/​duress, the effect of the excuse is a complete acquittal: CCQ, s 31; CCWA, s 32.

Elements toolbox Provocation [9.310] 

The elements of the excuse of provocation in CCQ, s 269(1) and CCWA, s 246 where a person is not criminally responsible for an assault if provoked are: 1

The person is deprived of the power of self-​control

2

The person acts upon the provocation before there is time for their passion to cool

3

The amount of force is not disproportionate to the provocation

4

The force used is not intended or likely to cause death or grievous bodily harm.

The definition of provocation is provided in CCQ, s 268 and CCWA, s 245 and only applies to CCQ, s 269 and CCWA, s 246 (not CCQ, s 304 because murder does not contain the element of assault). The elements of the definition are: 1

Wrongful act or insult – done to an ordinary person; OR

– done in the presence of an ordinary person to a person who is under the ordinary person’s immediate care; OR – done in the presence of an ordinary person to a person where there is a relationship such as conjugal, parental, filial, fraternal, master or servant 2

Likely to deprive an ordinary person of the power of self-​control

3

Induces the person to assault the person who did the wrongful act or offered the insult.

In Queensland, the elements of the defence of killing on provocation under CCQ, s 304 where murder is reduced to manslaughter are: 1

Person unlawfully kills another (murder)

2

Does the act which causes death

3

In the heat of passion caused by sudden provocation

4

Before there is time for the passion to cool.

Diminished responsibility In Queensland, the elements of the defence of diminished responsibility in CCQ, s 304A(1) and (2) where murder is reduced to manslaughter are: 1

Person unlawfully kills another (murder)

2

At the time of doing the act or making the omission that causes death

3

In a state of abnormality of mind (from arrested or retarded development, inherent cause, disease or injury)

4

Substantially impairs the person’s capacity to: – understand what they are doing; OR – control their actions; OR – know that they ought not do the act or make the omission.

Extraordinary emergency Queensland The elements of the excuse of extraordinary emergency in CCQ, s  25, where an accused person is not criminally responsible, are: 1

Subject to acts done upon compulsion, provocation and self-​defence

2

Person does an act or makes an omission

3

Under circumstances of sudden or extraordinary emergency

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4

Ordinary person: – possessing ordinary power of self-​control; and – could not reasonably be expected to act otherwise.

Western Australia The elements of the excuse of extraordinary emergency in CCWA, s 25, where an accused person is not criminally responsible are: 1 2 3

4 5

Subject to acts done upon duress, provocation, prevention of repetition of insult and self-​defence Person does an act or makes an omission in an emergency The person believes that: – a sudden or extraordinary emergency exists; and – the act or omission is a necessary response The act or omission is a reasonable response to the emergency in circumstances as the person believes them to be; There are reasonable grounds for the person’s beliefs.

Compulsion/​duress Queensland The elements of the excuse of compulsion in CCQ, s 31, where an accused person is not criminally responsible, are: 1 2

3 4 5

A threat of serious harm or detriment is made by a person who is capable of carrying out the threat In response to this the accused does or omits to do something to protect her-​or himself, or another person, or some property from the threat The accused reasonably believes that this is the only way of escaping or avoiding the threat What the accused does is reasonably proportionate to the harm or detriment threatened Provided that: – the offence committed by the accused is not murder, or grievous bodily harm, or an offence where intention to cause grievous bodily harm is an element; OR – the accused did not enter into an unlawful association rendering them liable to such a threat.

Western Australia The elements of the excuse of duress in CCWA, s 32, where an accused person is not criminally responsible, are: 1

The accused has a reasonable belief that: – a threat has been made; and – the threat will be carried out unless the accused commits the offence; and – it is necessary to commit the offence to prevent the threat being carried out

2

The offence is a reasonable response to the threat in the circumstances as the accused believes them to be

3

There are reasonable grounds for the person’s beliefs.

4

Provided the accused was not voluntarily associating with the person making the threat for the purpose of: – committing an offence of the type committed; OR – prosecuting an unlawful purpose in which it could reasonably be foreseen that such a threat would be made.

Guide to problem solving [9.320] Note that the issues below arise in both jurisdictions unless expressly stated otherwise. Provocation –​where assault is an element of the offence • Does the accused person bear the onus of proving provocation? • Did the accused person assault the victim? • Did the victim do or offer a wrongful act or insult? • Was the accused person deprived of the power of self-​control? – What are the accused person’s personal attributes and characteristics? • Did the accused person act upon the provocation before there was time for the passion to cool? • Is an ordinary person in the accused person’s shoes likely to have been deprived of the power of self-​control?

– Was the wrongful act or insult done or offered to an ordinary person? OR

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– Was the wrongful act or insult done or offered in the presence of an ordinary person to a person under their immediate care? OR

– Was the wrongful act or insult done in the presence of an ordinary person to a person where there is a relationship such as conjugal, parental, filial, fraternal, master or servant? AND

– What is the accused person’s age? (This is attributed to the ordinary person.)

• Was the force used by the accused person disproportionate to the provocation? • Was the force intended or likely to cause death or grievous bodily harm? • What is the effect of provocation? Provocation –​where the accused person has unlawfully killed the victim Queensland • Does the accused person bear the onus of proving provocation? • Did the accused person do an act that causes death? • Did the victim provoke the accused person? • Was the accused person deprived of the power of self-​control? – What are the accused person’s personal attributes and characteristics? • Did the accused person act in the heat of passion caused by sudden provocation and before there was time for the accused person’s passion to cool? • Could an ordinary person in the accused person’s shoes have been deprived of the power of self-​control?

– Was the wrongful act or insult done or offered to an ordinary person? OR



– Was the wrongful act or insult done or offered in the presence of an ordinary person to a person under their immediate care? OR

– Was the wrongful act or insult done in the presence of an ordinary person to a person where there is a relationship such as conjugal, parental, filial, fraternal, master or servant? AND

– What is the accused person’s age? (This is attributed to the ordinary person.)



– Was the force used by the accused person disproportionate to the provocation?

• What is the effect of provocation where the accused unlawfully kills another person?

Diminished responsibility Queensland • Does the accused person bear the onus of proving diminished responsibility? • Did the accused person unlawfully kill another person? • Did the accused person have a state of abnormality of mind (from arrested or retarded development, inherent cause, disease or injury) at the time of causing the death? • Was the accused person’s capacity to understand what they were doing substantially impaired? OR • Was the accused person’s capacity to control their actions substantially impaired? OR • Was the accused person’s capacity to know that they ought not do the act or make the omission substantially impaired? • What is the effect of diminished responsibility? Extraordinary emergency Queensland • Does the accused person bear the onus of proving extraordinary emergency? • Does compulsion, provocation or self-​defence apply? • Did the accused person do an act or make an omission in circumstances of sudden or extraordinary emergency? • Could an ordinary person possessing an ordinary power of self-​ control be reasonably expected to act differently? • What is the effect of extraordinary emergency? Western Australia • Does the accused person bear the onus of proving extraordinary emergency? • Does duress, provocation, prevention of repetition of insult or self-​defence  apply? • Did the accused person do an act or make an omission in an emergency? • Did the accused person believe that a sudden or extraordinary emergency existed? • Did the accused person believe the act or omission was a necessary response? • Was the act or omission a reasonable response to the emergency in circumstances reasonably believed to have occurred by the accused person? • What is the effect of extraordinary emergency?

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Compulsion/​duress Queensland • Does the accused bear the onus of proving compulsion? • Did the accused do an act or make an omission under compulsion? • Did the act or omission of the accused amount to murder, grievous bodily harm or an offence containing an intention to do grievous bodily harm? • Had the accused entered an unlawful association with the person making the threat where it was foreseeable that such a threat would be made? • Did the accused do an act or make an omission in response to a threat of serious harm or detriment? • Was the person making the threat in a position to carry the threat  out? • Did the accused reasonably believe that it was necessary to do the act or make the omission to escape the carrying out of the threat? • Was the act or omission reasonably proportionate to the harm or detriment threatened? • What is the effect of compulsion? Western Australia • Does the accused person bear the onus of proving duress? • Did the accused person do an act or make an omission under duress? • Had the accused voluntarily associated with the person making the threat for an unlawful purpose? • Did the accused reasonably believe that a threat had been made? • Did the accused reasonably believe that the act or omission was a necessary response? • Was the act or omission a reasonable response to the threat in the circumstances reasonably believed to have occurred by the accused person? • What is the effect of duress?

Revision questions 1

Are provocation, extraordinary emergency and compulsion/​ duress defences?

2

Does an insult need to be wrongful?

3

Does the provocation need to occur in front of the accused?

4

What may cause a person to be deprived of the power of self-​control?

5

What are some characteristics?

examples

of

personal

attributes

and

6

Are personal attributes and characteristics taken into account in the ordinary person test for provocation?

7

How is battered woman syndrome evidence relevant to provocation?

8

Have the courts set a time limit on terms such as “sudden” and “heat of passion”?

9

In assessing the actual force used for the purposes of proportionality, what factors should be considered?

10

What three capacities may be substantially impaired for diminished responsibility?

11

What emotions or influences on an accused person are insufficient to qualify for diminished responsibility?

12

Can the excuse of extraordinary emergency be raised as an excuse to a charge of murder?

13

Can the excuse of extraordinary emergency be successfully applied if the excuse of self-​ defence, compulsion/​ duress or provocation applies?

14

Can the excuse of compulsion/​duress be raised as an excuse to a charge of murder?

15

What are the effects of provocation, diminished responsibility, extraordinary emergency and compulsion/​duress?

Problem questions 1

Olivia and Mia are middle-​aged work colleagues at a multinational mining corporation who recently competed against each other for a promotion in the accounting department. Olivia was promoted, but it seems that the promotion was not based on the accounting test they both did because Mia reached the correct conclusion and Olivia was incorrect by $400 million.



During an accounting department meeting, Mia accused Olivia of being incompetent and of only receiving the promotion because her husband, Riley, was the boss. In response, Olivia was angry and punched Mia in the face, causing a black eye. Olivia has been charged with assault occasioning bodily harm. Advise Olivia whether she can raise provocation.

2

Jack, aged 32, had been in a romantic relationship for six months with Sienna. Jack thought Sienna was the love of his life.



On the night in question, while Jack was busy playing pool, Sienna met a man named Ethan at the bar. Jack was concerned for Sienna as he had witnessed Ethan flirting with her at the bar. After consuming a couple of drinks, Ethan offered Sienna a lift home and Sienna gladly accepted thinking that Jack would stay at the bar until late playing pool. Ethan drove Sienna to a lookout on the way home. Because he did not trust Ethan, Jack

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decided to leave the bar and followed Sienna and Ethan by car to keep his eye on Sienna.

After observing Ethan’s car for several minutes, Jack walked over to the car and opened the door. Ethan was shocked to see the car door open and yelled, “Go away, you loser”. Jack became enraged as he could see that Ethan and Sienna had removed their clothing and were engaging in sexual activities. Jack went back to his car, grabbed a butcher’s knife and used it to stab Ethan several times in the chest. Soon after, Ethan passed away.



Jack stated that it all happened so quickly, he felt jealous, betrayed and angry, and he was so enraged that he was dazed such that he did not know what he was doing.



Advise Jack whether he can raise provocation under CCQ, s 304 or diminished responsibility under CCQ, s 304A. Do not discuss CCQ, s 304B.

Answers to revision questions 1

Provocation pursuant to CCQ, s 269(1) or CCWA, s 246, extraordinary emergency and compulsion/​ duress are excuses. This means that an accused person bears the legal and evidentiary burden to raise some evidence of provocation or extraordinary emergency, and the prosecution must negative the excuse beyond reasonable doubt. Note that the accused person simply needs to raise evidence of the excuse and does not need to prove it on the balance of probabilities, nor beyond reasonable doubt: Strong v Woolworths Ltd (2012) 246 CLR 182 at [50]-​[51] per Heydon J; Woolmington v DPP [1935] AC 462.



Provocation pursuant to CCQ, s 304 is a defence and is only a partial excuse because it reduces a charge of murder to manslaughter: R v Miller [2009] 2 Qd R 86; [2009] QCA 11 at [21] per Chesterman JA, quoting trial judge AM Lyons J. This requires the accused person to prove provocation on the balance of probabilities and the prosecution to negative it beyond reasonable doubt: Strong v Woolworths Ltd (2012) 246 CLR 182 at [50]-​[51] per Heydon J; Woolmington v DPP [1935] AC 462.

2

No, an insult already implies offensiveness and does not require wrongfulness: Stingel v The Queen (1990) 171 CLR 312 at 323-​324.

3

Yes, the wrongful act or insult must occur in the presence of the accused person: Tough v Kay (1996) 87 A Crim R 278 at 281 per Heenan J. The wrongful act or insult must provoke the accused person, and there is no provocation if an accused person is simply aware that a wrongful act or insult occurred on an earlier occasion: R v McCauley [2009] QDC 298 at [16] per McGill DCJ.

4

Fear, panic, anger and resentment: Van Den Hoek v The Queen (1986) 161 CLR 158 at 167-​ 168 per Mason J. However, involuntariness or automatism cannot cause a loss of self-​ control for the purposes of provocation: R v Pollock [2009] QCA 268 at [57] per Keane JA.

5

Age, sex, race, colour, physical features, personal relationships, past history, mental instability, and any weakness of the accused: Stingel v The Queen (1990) 171 CLR 312 at 326.

6

All the accused’s personal attributes and characteristics, both “ordinary” and “extraordinary”, are taken into account in the first step of the ordinary person test, where the gravity of the provocation is assessed from the perspective of the accused person: Stingel v The Queen (1990) 171 CLR 312 at 326.



The purpose of taking all the accused person’s attributes and characteristics into account is to ensure that the full impact of the wrongful act or insult is felt: R v Miller [2009] 2 Qd R 86; [2009] QCA 11 at [40] per Chesterman JA. Such attributes and characteristics may mean that an accused person reacts with “enhanced keenness” or “greater fury” than an ordinary person without those personal attributes and characteristics: R v Miller [2009] 2 Qd R 86 at [39] per Chesterman JA.



Only the accused person’s “ordinary” attributes and characteristics, such as age and history, are taken into account in the second step of the ordinary person test. Age is considered because a person’s development through childhood to maturity is common to everyone and has an aspect of ordinariness: Stingel v The Queen (1990) 171 CLR 312 at 330.

7

Battered woman syndrome expert evidence is useful in assessing the gravity of the provocation, particularly with regards to a battered person’s “heightened arousal or awareness of danger”: Osland v The Queen (1998) 197 CLR 316 at 337-​338 [55]-​[58] per Gaudron and Gummow JJ.

8

No, the courts have not drawn a clear dividing line between whether an accused person has acted upon the wrongful act or insult on the sudden (that is, before there is time for the passion to cool) and deliberate act of revenge. There is no precise counting of time: Parker v The Queen (1963) 111 CLR 610 at 662-​663 per Windeyer J. The quicker the time between the provocation and the accused person’s reaction, the more likely the accused person has acted on the sudden and before there has been time for the passion to cool: R v Chhay (1994) 72 A Crim R 1 at 10 per Gleeson CJ.

9

The factors are: nature and manner of force; degree, extent and duration of force; and the circumstances, including the location, in which force is used: R v Toomath [2009] QCA 369 at [29] per Muir JA.

10

The three capacities are: understand what they are doing; control their actions; or know that they ought not do the act or make the omission: CCQ, s 304A.

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11

An “abnormality of the mind” is critical to the defence of diminished responsibility. An abnormal state of mind cannot be caused by prejudice, anger, temper, jealousy, religious influences, political influences or intoxication: R v Whitworth [1989] 1 Qd R 437 at 457 per Derrington J.

12

Yes, there are no limitations on the offences to which the excuse of extraordinary emergency applies.

13

No, both CCQ, s 25 and CCWA, s 25 expressly exclude the excuse of extraordinary emergency in cases where self-​defence, compulsion/​duress or provocation applies.

14

In Queensland: No, the excuse of compulsion cannot be raised as an excuse to a charge of murder.



In Western Australia: Yes, there are no limitations on the offences to which the excuse of duress applies.

15 The effects of provocation, diminished responsibility, extraordinary emergency and compulsion/​duress are as follows:

– where killing on provocation is successfully raised under CCQ, s 304, the defence has the effect of reducing a charge of murder to manslaughter;



– where provocation is successfully raised under CCQ, s 269(1) or CCWA, s 246, the excuse has the effect of a complete acquittal;



– if an accused person is successful in raising diminished responsibility, the effect of the defence is to reduce a charge of murder to manslaughter: CCQ, s 304A(1);



– where extraordinary emergency is successfully raised under CCQ, s 25 or CCWA, s 25, the effect of the excuse is a complete acquittal;



– where compulsion is successfully raised under CCQ, s 31, the effect of the excuse is a complete acquittal. (Note, however, that this excuse does not apply to a charge of murder, grievous bodily harm or an offence containing an intention to do grievous bodily harm.);



– where duress is successfully raised under CCWA, s 32, the effect of the excuse is a complete acquittal.

Answers to problem questions In answering the problem questions, the following issues should be considered: QUESTION 1 Provocation –​where assault is an element of the offence Does Olivia bear the onus of proving provocation?

Provocation pursuant to CCQ, s 269(1) or CCWA, s 246 is an excuse. This means that Olivia bears the legal and evidentiary burden to raise some evidence of provocation, and the prosecution must negative the excuse beyond reasonable doubt. Note that Olivia simply needs to raise evidence of the excuse and does not need to prove it on the balance of probabilities nor beyond reasonable doubt: Strong v Woolworths Ltd (2012) 246 CLR 182 at [50]-​[51] per Heydon J; Woolmington v DPP [1935] AC 462. Did Olivia assault Mia? Yes, Olivia punched Mia in the face causing a black eye, which amounts to assault occasioning bodily harm under CCQ, s 339 or assault causing bodily harm under CCWA, s 317. Assault includes the direct application of force, and thus punching someone in the face is sufficient: CCQ, ss 245 and 246; CCWA, ss 222 and 223. Did Mia do or offer a wrongful act or insult? Words alone are sufficient to amount to an insult: R v Bedelph (1980) 1 A Crim R 445 at 448 per Green CJ. An insult may occur by words, signs, acts or any other means: R v Bedelph (1980) 1 A Crim R 445 at 456 per Crawford J. An insult does not necessarily need to be wrongful, false or inapposite. In fact, a rightful, truthful or apposite insult may be more offensive than a wrongful insult: Stingel v The Queen (1990) 171 CLR 312 at 323-​324. Mia insulted Olivia by saying that she was incompetent and only received a promotion because her husband was the boss. The insult must occur in front of Olivia and it did –​while she and Mia were attending an accounting department meeting: Tough v Kay (1996) 87 A Crim R 278 at 281 per Heenan J. Was Olivia deprived of the power of self-​control? Where a wrongful act or insult causes fear, panic, anger or resentment, provocation is still available to an accused person: Van Den Hoek v The Queen (1986) 161 CLR 158 at 167-​168 per Mason J. The loss of self-​ control cannot be as a result of involuntariness or automatism: R v Pollock [2009] QCA 268 at [57] per Keane JA. Olivia was angry, but further examination is needed to determine whether or not she had actually “snapped”, lost the power of self-​ control, when she punched Mia in the face in front of their work colleagues at the accounting department meeting. The gravity and implications of the wrongful act or insult (content and extent) are assessed from the perspective of the particular accused; thus, it is a subjective test where all of Olivia’s personal attributes and characteristics are taken into consideration: Stingel v The Queen (1990) 171 CLR 312 at 326.

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What are Olivia’s personal attributes and characteristics? The court should consider all of Olivia’s personal attributes and characteristics, both “ordinary” and extraordinary”, including: age, sex, race, physical features, personal relationships, past history, mental instability, and weaknesses: Stingel v The Queen (1990) 171 CLR 312 at 326. On the facts, Olivia is middle-​aged, works with Mia, is married to the boss of the multinational mining corporation, and recently got promoted over Mia even though Olivia got the final figure on the accounting test incorrect. The purpose of taking into account Olivia’s working relationship with both Mia and Olivia’s husband is to ensure that the full impact of Mia’s insult is felt: R v Miller [2009] 2 Qd R 86 at [40] per Chesterman JA. As a result, Olivia has reacted with “enhanced keenness” or “greater fury” than an someone without those personal attributes and characteristics: R v Miller [2009] 2 Qd R 86 at [39] per Chesterman JA. For the purposes of this exercise, we will assume that the provocation, insults, from Mia did cause Olivia to “snap” and lose her power of self-​control. Did Olivia act upon the provocation before there was time for the passion to cool? Pursuant to CCQ, s 269(1) or CCWA, s 246, Olivia must react before there is time for the passion to cool. The dividing line between Olivia’s reaction to Mia’s provocation (and whether it occurred before there was time for the passion to cool) and whether it was an act of deliberate revenge is unclear. There is no precise counting of time: Parker v The Queen (1963) 111 CLR 610 at 662-​663 per Windeyer J. The less time between Mia’s provocation and Olivia’s reaction, the more likely it is that Olivia acted before there was time for the passion to cool: R v Chhay (1994) 72 A Crim R 1 at 10 per Gleeson CJ. Olivia punched Mia in the face immediately after Mia’s insult, which would infer that Olivia did not have time to mull things over or brood; therefore it can be assumed that Olivia acted before there was time for her passion to cool: R v Miller [2009] 2 Qd R 86 at [27], [56] per Chesterman JA. Olivia acted quickly, and out of extreme emotion –​that is, anger: R v Miller [2009] 2 Qd R 86 at [55] per Chesterman JA. Is an ordinary person likely to have been deprived of the power of self-​control? Even for an ordinary person, there does occur a snapping point when they may do something that they would not dream of doing under normal circumstances: R v Miller [2009] 2 Qd R 86 at [26] per Chesterman JA, quoting trial judge A M Lyons J. The objective test is from the perspective of a “truly hypothetical ‘ordinary person’ ”:  Stingel v The Queen (1990) 171 CLR 312 at 327. The principle of an “ordinary person” provides an objective standard about the minimum powers of self-​control: Stingel v The Queen (at 326).

Olivia will not be judged on a fluctuating standard of self-​control, but rather an objective standard that is based on equality and individual responsibility: Stingel v The Queen (at 324); R v Miller [2009] 2 Qd R 86 at [42] per Chesterman JA. In Stingel v The Queen (at 329), the High Court acknowledged that some groups in the community may have a power of control that is higher or lower than the average power. All members of the community are expected to meet the lowest level of self-​control that can be attributed to an ordinary person. Only the accused person’s “ordinary” attributes and characteristics, such as age and history, are taken into account in the second step of the ordinary person test: Stingel v The Queen (at 324, 326-​327). Was the wrongful act or insult done or offered to an ordinary person? Mia’s comment that Olivia is incompetent and only got promoted because her husband is the boss is an insult to Olivia. The question becomes: Could an ordinary person on these facts have been deprived of the power of self-​control? OR Was the wrongful act or insult done or offered in the presence of an ordinary person to a person under their immediate care? No. OR Was the wrongful act or insult done in the presence of an ordinary person to a person where there is a relationship such as conjugal, parental, filial, fraternal, master or servant? No. AND What is Olivia’s age? (This is attributed to the ordinary person.) Age should be attributed to the ordinary person test because it is an “ordinary” characteristic; a person’s development through childhood to maturity is common to everyone and has an aspect of ordinariness: Stingel v The Queen (1990) 171 CLR 312 at 330. Note that the accused person in Stingel was 19, more youthful than Olivia who is middle-​ aged, and provocation was still not available to that more youthful person. An ordinary, middle-​aged, person in the workplace would be expected to have a higher level of self-​control than was exhibited by Olivia. Was the force used by Olivia disproportionate to the provocation? Proportionality is critical to establishing the elements of CCQ, s 269(1) or CCWA, s 246. Proportionality is determined by identifying the causal connection or proximity between the actual force used by Olivia and the gravity of

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the insult offered by Mia; the gravity is elevated by reference to Olivia’s characteristics, but this is not a subjective test, it is an objective test based on the gravity to an ordinary person considering well understood standards: Verhoeven v Ninyette (1998) 101 A Crim R 24 at 32 per Wheeler J. In assessing the actual force used, a court should consider the nature and manner of the force; the degree, extent and duration of the force; and the circumstances, including the location in which the force is used: R v Toomath [2009] QCA 369 at [29] per Muir JA. Punching a work colleague in the face during a work meeting is arguably disproportionate to calling a colleague incompetent and suggesting that they only got promoted because their husband is the boss. Was the force used by Olivia intended or likely to cause death or grievous bodily harm? If Olivia used force that was intended to cause grievous bodily harm or death, provocation pursuant to CCQ, s 269 or CCWA, s 246 would not be available. As Olivia only used her fist and struck Mia once, it is arguable that her force was not intended or likely to cause death or grievous bodily harm. However, the opposite argument could be made by relying on the “one-​punch-​can-​kill” campaign. What is the effect of provocation where Olivia has assaulted Mia? If Olivia is successful in raising provocation under CCQ, s 269 or CCWA, s 246, it has the effect of a complete acquittal. QUESTION 2 Provocation where there is an unlawful killing Does Jack bear the onus of proving killing on provocation? Killing on provocation, pursuant to CCQ, s 304, is a defence. This means that Jack needs to prove provocation on the balance of probabilities and the prosecution needs to negative it beyond reasonable doubt: Strong v Woolworths Ltd (2012) 246 CLR 182 at [50]-​[51] per Heydon J; Woolmington v DPP [1935] AC 462. Did Jack do an act that causes death? Yes, Jack stabbed Ethan several times in the chest with a butcher’s knife, and this caused Ethan to pass away. Did Ethan provoke Jack? Insulting or upsetting words are not sufficient to provoke an unlawful killing, and the words in such a case would need to be of an extreme or exceptional character; a confession of adultery, even a sudden confession to a person unprepared for it, is never sufficient, without more, to sustain this defence: R v Buttigieg (1993) 69 A Crim R 21 at 37 per Fitzgerald P, Pincus JA and Thomas J. Ethan’s words to Jack, “Go away, you loser”, are not sufficient to provoke an unlawful killing.

A single and isolated act may amount to provocation: Parker v The Queen (1964) 111 CLR 610 at 662 per Windeyer J. Arguably, there is provocation when Ethan’s words are coupled with his wrongful act of engaging in sexual activities with Sienna, who was Jack’s girlfriend; assuming that Ethan’s act was “wrongful”. What are Jack’s personal attributes and characteristics? The court should consider all of Jack’s personal attributes and characteristics, both “ordinary” and “extraordinary”, including: age, sex, race, physical features, personal relationships, past history, mental instability and weaknesses: Stingel v The Queen (1990) 171 CLR 312 at 326. On the facts, Jack is 32 years of age (note that Jack is not as youthful as the man in Stingel v The Queen, and killing on provocation was still not available to that more youthful man), male, has been in a romantic relationship with Sienna for six months and he thinks she is the love of his life. The purpose of taking into account Jack’s relationship with Sienna is to ensure that the full impact of Ethan’s wrongful act and insult is felt: R v Miller [2009] 2 Qd R 86; [2009] QCA 11 at [40] per Chesterman JA. As a result, Jack has reacted with “enhanced keenness” or “greater fury” than someone without those personal attributes and characteristics: R v Miller (at [39]) per Chesterman JA. Was Jack deprived of the power of self-​control? The gravity and implications of the wrongful act or insult (content and extent) are assessed from Jack’s perspective; thus, it is a subjective test: Stingel v The Queen (1990) 171 CLR 312 at 326. All of Jack’s personal attributes and characteristics are taken into consideration in this process. Jack stated that it all happened so quickly, he felt jealous, betrayed and angry, and he was so enraged that he was dazed such that he did not know what he was doing. As a result, it can be assumed that Jack was deprived of the power of self-​control. Did Jack act in the heat of passion caused by sudden provocation and before there was time for Jack’s passion to cool? The dividing line between Jack’s reaction to Ethan’s provocation (and whether it occurred before there was time for the passion to cool) and whether it was an act of deliberate revenge is unclear. There is no precise counting of time: Parker v The Queen (1963) 111 CLR 610 at 663 per Windeyer J. The less time between Ethan’s provocation and Jack’s act, the more likely it is that Jack has acted on the sudden and before there has been time for the passion to cool: R v Chhay (1994) 72 A Crim R 1 at 10 per Gleeson CJ. Jack has not had time to mull things over or brood: R v Miller [2009] 2 Qd R 86 at [56] per Chesterman JA. He has acted quickly and out of extreme emotion –​that is, anger: R v Miller (at [55]).

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Could an ordinary person, in Jack’s shoes, have been deprived of the power of self-​control? The objective test is from the perspective of a “truly hypothetical ‘ordinary person’ ”:  Stingel v The Queen (1990) 171 CLR 312 at 327. The principle of an “ordinary person” provides an objective standard about the minimum powers of self-​control: Stingel v The Queen (at 326). Jack will not be judged on a fluctuating standard of self-​control, but rather an objective standard that is based on equality and individual responsibility: Stingel v The Queen (at 324). Where a wrongful act or insult causes fear, panic, anger or resentment, provocation is still available to an accused person: Van Den Hoek v The Queen (1986) 161 CLR 158 at 167-​168 per Mason J. The loss of self-​ control cannot be as a result of involuntariness or automatism: R v Pollock [2009] QCA 268 at [57] per Keane JA. In Stingel v The Queen (1990) 171 CLR 312 at 329, the High Court acknowledged that some groups in the community may have a power of control that is higher or lower than the average power. All members of the community are expected to meet the lowest level of self-​control that can be attributed to an ordinary person. Only the accused person’s “ordinary” attributes and characteristics, such as age and history, are taken into account in the second step of the ordinary person test: Stingel v The Queen (at 324, 326-​327). Was the wrongful act or insult done or offered to an ordinary person? When examining whether or not Ethan’s acts were wrongful or insulting, consideration must be given to whether or not Ethan was deliberating trying to provoke Jack; Ethan and Sienna were in a “private setting”, away from Jack, and was Ethan even aware that Sienna was Jack’s girlfriend? It is unlikely that an unwitting provoker’s actions, that were not intended to provoke the accused, could he held to have provoked an ordinary person: R v Stevens [1989] 2 Qd R 386 at 390 per Demack J. For the purposes of this exercise we will assume that yes; when Ethan engaged in sexual activities with Sienna (Jack’s girlfriend) and called Jack a “loser”, his act and insult were directed at Jack to provoke him. The question becomes: could an ordinary person on these facts have been deprived of the power of self-​control? OR Was the wrongful act or insult done or offered in the presence of an ordinary person to a person under their immediate care? No. OR Was the wrongful act or insult done in the presence of an ordinary person to a person where there is a relationship such as conjugal, parental, filial, fraternal, master or servant? No. AND

What is Jack’s age? (This is attributed to the ordinary person.) Jack’s age (32) should be taken into account in the objective ordinary person test because a person’s development through childhood to maturity is common to everyone and has an aspect of ordinariness: Stingel v The Queen (1990) 171 CLR 312 at 330. Note that the accused person in Stingel was 19 and was youthful, which is different to these facts where Jack is 32, and killing on provocation was still not available to that more youthful accused person. Was the force used by Jack disproportionate to Ethan’s provocation? This was discussed above. Jack’s use of force was disproportionate to Ethan’s wrongful act and insult. An ordinary person, aged 32, who was called a “loser” and who saw their partner of six months engaging in sexual activities with another person could not have been deprived of the power of self-​control to the extent of stabbing Ethan several times in the chest with a butcher’s knife, thereby killing him. What is the effect of provocation where Jack has unlawfully killed Ethan? If Jack is successful in raising provocation under CCQ, s 304, the partial excuse has the effect of reducing a charge of murder to manslaughter. Diminished responsibility Does Jack bear the onus of proving diminished responsibility? Diminished responsibility is a defence in Queensland under CCQ, s 304A; Western Australia does not offer an equivalent defence of diminished responsibility. As a defence, Jack bears the legal and evidentiary burden to prove diminished responsibility on the balance of probabilities, and the prosecution must negative the defence beyond reasonable doubt: Strong v Woolworths Ltd (2012) 246 CLR 182 at [50]-​ [51] per Heydon J; Woolmington v DPP [1935] AC 462. Did Jack unlawfully kill Ethan? Yes, Jack stabbed Ethan several times with a butcher’s knife, which ultimately killed Ethan. Did Jack have a state of abnormality of mind (from arrested or retarded development, inherent cause, disease or injury) at the time of causing the death? An “abnormality of the mind” is critical to the defence of diminished responsibility. The term is different to “mental disease or natural mental infirmity”, which is an element of insanity: CCQ, s 27 or CCWA, s 27. The intelligence of people in society and their ability to reason and exercise self-​restraint varies greatly: R v Rolph [1962] Qd R 262 at [66] per Hanger J. An abnormal state of mind cannot be caused by prejudice, anger, temper, jealousy, religious influences, political influences or intoxication: R v Whitworth [1989] 1 Qd R 437 at 457 per Derrington J.

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Jack stated that he felt jealous, betrayed and angry, but these causes are not sufficient to amount to an abnormal state of mind for the purposes of diminished responsibility.2 Was Jack’s capacity to understand what he was doing substantially impaired? To successfully argue diminished responsibility, Jack needs to prove that he has had one of the three capacities substantially impaired. The requirement of substantial impairment is less than the requirement for insanity, which is total deprivation. The definition of “substantial” falls in between total or destroyed and trivial or minimal: R v Lloyd [1967] 1 QB 175 at 176 per Edmund Davies J, quoting trial judge Ashworth J. Jack stated that he did not know what he was doing, and this may suggest that his capacity was totally destroyed. Further facts and medical evidence should be ascertained to determine whether Jack’s capacity was at least substantially impaired for the purposes of his defence. OR Was Jack’s capacity to control his actions substantially impaired? Jack was so enraged that he was dazed, and this may suggest that his capacity to control his actions was substantially impaired. Once again, further facts and medical evidence should be ascertained to prove a substantial impairment of his capacity. OR Was Jack’s capacity to know that he ought not do the act or make the omission substantially impaired? There is nothing in the facts to suggest that Jack did not know that he ought not stab Ethan several times in the chest (killing Ethan); but it would be prudent to ascertain more facts and medical evidence on this point. What is the effect of diminished responsibility? If Jack is successful in arguing diminished responsibility, the partial defence will reduce the charge of murder to manslaughter: CCQ, s 304A.

2

For completeness, students should consider the remaining elements of diminished responsibility or they may miss valuable marks in an exam.

Critical thinking questions 1

Identify a list of offences where provocation under CCQ, s 269 or CCWA, s 246 is available.

2

Why do you think the excuse of killing on provocation in Western Australia is not available?

3

What is the historical significance of provocation? Does it still have a role to play in our criminal law today?

4

How is provocation different to self-​defence?

5

What are the strengths and weaknesses of the ordinary person test used in provocation?

6

How could “heat of passion” be better expressed in the 21st century to help jurors?

7

What are the pros and cons of using battered woman syndrome evidence in a case raising provocation?

8

What challenges arise in determining proportionality?

9

What are the similarities and differences between diminished responsibility and insanity?

10

Why do you think the defence of diminished responsibility does not exist in Western Australia?

11

Why do you think the ordinary person test used in provocation is different to the ordinary person test used in extraordinary emergency (in Queensland)? Should provocation and extraordinary emergency adopt a consistent approach and, if so, which one?

12

Can you envisage a factual scenario where provocation, extraordinary emergency and self-​defence apply?

13

Should the ordinary person test used in the excuse of extraordinary emergency be strictly an objective test?

14

Should extraordinary emergency be abolished as an excuse?

15

Should the excuse of compulsion in Queensland apply in cases where a person commits murder or grievous bodily harm?

Readings • T Crofts, K Burton, R Martin, T Nisbet and S Tarrant, Criminal Codes: Commentary and Materials (7th ed, Thomson Reuters/​ Lawbook Co., 2018) Ch 7. • T Crofts, LexisNexis Study Guide: Criminal Law in Queensland and Western Australia (LexisNexis, Sydney, 2nd ed, 2014) Ch 10. • K Burton, LexisNexis Questions and Answers: Criminal Law in Queensland and Western Australia (2nd ed, LexisNexis, Sydney, 2015) Chs 11 and 12.

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Self-​defence Learning outcomes .........................................................................   366 [10.10] Principles............................................................................   367 [10.20] Queensland.............................................................................   367 [10.30] Western Australia.....................................................................   368 [10.40] Queensland: Sections 271-​273.....................................................   368 [10.50] Western Australia: Section 248....................................................   371 [10.60] Onus of proving self-​defence.......................................................   372 [10.70] Harmful act.............................................................................   373 [10.80] Assault...................................................................................   373 [10.90] Force used reasonably necessary for defence..................................   375 [10.100] Provoked..............................................................................   375 [10.110] Reasonable apprehension of death or grievous bodily harm..............   375 [10.120] Accused person’s belief............................................................   376 [10.130] Force intended to or likely to cause death or grievous bodily harm......   377 [10.140] Practicable retreat...................................................................   377 [10.150] Battered woman syndrome.......................................................   378 [10.160] Defending another person.........................................................   378 [10.170] Elements toolbox..............................................................   379 [10.180] Guide to problem solving..................................................   381 Revision questions .........................................................................   383 Problem questions .........................................................................   384 Answers to revision questions .......................................................   384 Answers to problem questions ......................................................   386 Critical thinking questions .............................................................  394 Readings .........................................................................................   395

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Learning outcomes This chapter will enable you to: • Understand whether self-​defence is a defence, excuse or justification, and determine who bears the onus of proof and to what standard • Identify whether to apply CCQ, ss  271(1), 271(2), 272(1), 272(2) and 273; or CCWA, ss 248(2), (3) and (4). • Identify whether self-​defence applies to manslaughter • Identify whether self-​defence requires provocation • Identify whether self-​defence requires an assault • Identify whether self-​defence requires a harmful act • Identify whether self-​ defence requires an apprehension of death or grievous bodily harm and, if yes, whether this is assessed from an objective and/​or subjective perspective • Identify whether self-​defence requires an accused person to believe that they cannot preserve themselves from death or grievous bodily harm other than by the force used and, if yes, whether this is assessed from an objective and/​or subjective perspective • Identify whether self-​defence requires an accused person to reasonably believe the harmful act is a reasonable response • Identify whether self-​defence requires an accused person to reasonably believe the act is necessary to defend themselves or another from a harmful act • Know whether self-​defence applies to a non-​imminent harmful act • Identify whether self-​defence requires the accused person to retreat • Identify what level of force is appropriate for the purposes of self-​defence • Understand the relevance of an accused person intending to cause death or grievous bodily harm • Understand whether an accused person can raise self-​defence if they are protecting another person • Understand whether an accused person needs to “act in good faith” • Understand the value of battered woman syndrome evidence to self-​defence • Understand the effect of self-​defence, particularly whether it results in a full or partial acquittal

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[10.10] 

Self-​defence is founded on the need for self-​preservation and may be argued under several provisions.

Queensland [10.20] 

In Queensland, if an accused person defends themselves, they may raise self-​defence pursuant to CCQ, s 271(1), 271(2), 272(1) or 272(2). Furthermore, if an accused person is defending a third person, they may rely upon CCQ, s 273, but only in cases where it is lawful for the third person to defend themselves. The key issue then becomes which of these five provisions should be argued. Diagram 10.1 provides guidance on how to identify the relevant self-​defence provision. Diagram 10.1: Determining whether to apply CCQ, s 271(1), 271(2), 272(1) and 272(2)

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PRINCIPLES

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Western Australia [10.30] 

The Western Australian provisions on self-​defence adopt a very different approach, and do not hinge on provoked or unprovoked assaults, or whether the accused person is defending themselves or a third person. Whether the accused person has unlawfully killed the other person is a useful starting point. Diagram 10.2 provides guidance on how to identify which self-​defence provision to argue in Western Australia. Diagram 10.2: Determining whether to apply CCWA, s 248(2) or s 248(3)

Queensland: Sections 271-​273 [10.40] 

It should be noted that CCQ, s  271(1) provides a different justification for self-​defence to CCQ, s 271(2), and that the two provisions are not cumulative. In R v Bojovic [2000] 2 Qd R 183 at [12], Demack J stated that counsel should know the difference between CCQ, ss 271(1) and 271(2), and not always develop arguments around both provisions because doing so may be “counter-​productive to the presentation of a proper defence”. Diagrams 10.3-​10.6 demonstrate the requirements of CCQ, s  271(1), 271(2), 272(1), 272(2) and 273, respectively. Both limbs of self-​defence under CCQ, s 271 are “justifications”, where the accused person uses “lawful” force in self-​defence against an unprovoked assault. In contrast, both limbs of self-​defence under CCQ, s 272 are “excuses”, where the accused person is “not criminally responsible” for the force used in self-​defence against a provoked assault. Both ss 271(1) and 271(2) of the CCQ apply where an accused person does not initiate the incident or provoke the other person. The unprovoked other initiates the incident by unlawfully assaulting the accused person, and the accused person uses force against the other in response.

Under section 271(1), the force used by the accused person in response must be reasonably necessary for self-​defence, and not intended to or likely to cause death or grievous bodily harm, even though it may do so: R v Pickett [1972] Qd R 425 per Hart J at 429 [C]‌. Self-​defence pursuant to CCQ, s  271(1) ensures that the force used by the accused person in self-​defence is “lawful”. Self-​defence under this provision is also available as a defence [justification] to manslaughter under CCQ, s 303: R v Pickett [1972] Qd R 425 per Hart J at 435. This is demonstrated in Diagram 10.3. Diagram 10.3: CCQ, s 271(1)

In contrast to s 271(1), under s 271(2) the force used by the accused person in response may be intended or likely to cause death or grievous bodily harm. In addition, under s  271(2) the nature of unlawful assault from the unprovoked other must cause the accused person to have a reasonable apprehension of death or grievous bodily harm. The accused person must believe on reasonable grounds that they cannot preserve themselves from death or grievous bodily harm other than by the force they use in response. Self-​defence pursuant to CCQ, s 271(2) ensures that the force used by the accused person is “lawful”, even though it may be intended to cause the other person to die or suffer grievous bodily harm. This is demonstrated in Diagram 10.4. Diagram 10.4: CCQ, s 271(2)

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Both ss  272(1) and 272(2) apply where the accused person initiates the incident and provokes the other person.The accused person either unlawfully assaults or provokes an assault from the other person. Thus, in response to being provoked, the provoked other assaults the accused person. The violence used by the provoked other must then cause the accused person to have a reasonable apprehension of death or grievous bodily harm. The accused person must also believe, on reasonable grounds, that they cannot preserve themselves from death or grievous bodily harm other than by the force they use in response. Under CCQ, s 272(1), the initial assault by the accused person must not be intended, or likely, to cause death or grievous bodily harm. In contrast, under CCQ, s 272(2), the initial assault by the accused may be intended, or likely, to cause death or grievous bodily harm. However, the accused person must have declined further conflict and quitted it or retreated as far as practicable before they needed to defend themselves from the provoked other. The effect of self-​defence under both ss 272(1) and 272(2) means that the accused person is “not criminally responsible” for the force used in self-​defence, even though the force may be intended, or likely, to cause death or grievous bodily harm. Section 272 is demonstrated in Diagram 10.5. Section 273 of the CCQ allows an accused person to defend or protect another person (protected person) from an unlawful assault. The accused may protect the person, provided that the accused person acted in good faith and it would have been “lawful” for the protected person to use the same force in their own self-​defence. Section 273 applies if the protected person is in the circumstances detailed under ss 271(1) and 271(2), where it would be “Lawful” to use force in self-​ defence. However, s 273 does not apply to the circumstances detailed under ss 272(1) and 272(2), where the person is “not criminally responsible” for the force used in self-​defence. The provision does not require a special relationship between the accused person and the protected person. The provision is demonstrated in Diagram 10.6.

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Diagram 10.5: CCQ, s 272

Diagram 10.6: CCQ, s 273

Western Australia: Section 248 [10.50] 

Self-​defence pursuant to CCWA, ss 248(2) and 248(4) is lawful. It applies where the accused person does a harmful act to the other person. However, the accused person must reasonably believe that the act is necessary to defend themselves or another from a harmful act (even a non-​ imminent harmful act). Further, the accused person must reasonably believe that the harmful act is a reasonable response:

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This provision is demonstrated in Diagram 10.7. If s  248(3) of the CCWA is successfully argued, it has the effect of reducing murder to manslaughter. Under this provision the accused person must unlawfully kill the other person. Further, the accused person must reasonably believe the act is necessary to defend themselves or another from a harmful act (even a non-​imminent harmful act). This provision is demonstrated in Diagram 10.8. Diagram 10.7: CCWA, ss 248(2) and 248(4)

Diagram 10.8: CCWA, ss 248(3) and 248(4)

Onus of proving self-​defence [10.60] 

The term “defence” in “self-​defence” actually relates to the act of “defending” one’s self against an attack, it does not relate the technical nature of the legal “defences”.

In Queensland, the five limbs of self-​defence are not legal “defences”, CCQ, ss  271(1), 271(2) and s  273 are actually legal “justifications”; while CCQ, ss 272(1) and 272(2) are legal “excuses”. In Western Australia, CCWA, s  248(2) is a legal “justification”, while CCWA, s  248(3) is a legal “excuse”, which only results in a downgraded offence and potential reduced sentence, but not a full acquittal. A successful “justification” results in a full acquittal. However, a successful “excuse” does not necessarily result in a full acquittal, it may result in a full acquittal, or it may only result in a downgraded offence and potential reduced sentence. “Justifications” include the word “lawful”, and “excuses” include the words “not criminally responsible”. Under both the “justifications” and “excuses” of self-​defence, an accused person bears the legal and evidentiary burden to raise some evidence of the self-​defence, and the prosecution must negative the self-​defence beyond reasonable doubt:  Strong v Woolworths Ltd (2012) 246 CLR 182 at [50]-​[51] per Heydon J; Woolmington v DPP [1935] AC 462 at 481-​482 per Viscount Sankey. The principles of self-​defence are examined in detail below.

Harmful act [10.70] 

In Western Australia, self-​defence hinges around the notion of “harmful act”. In contrast, self-​defence in Queensland does not refer to this term. “Harmful act” is defined in CCWA, s 248(1) as “an act that is an element of an offence under this Part (Part V) other than Chapter XXXV”. Part V of CCWA canvasses a wide range of offences, including: assaults and violence to the person, homicide, suicide, concealment of birth, offences endangering life or health, sexual offences, offences against liberty, threats, stalking, and offences relating to parental rights and duties. The term “harmful act” does not apply to the offence of criminal defamation, which is included in CCWA, Ch XXXV and, more specifically, CCWA, s 345.

Assault [10.80] 

The element of assault is contained in CCQ, s  271(1), 271(2), 272(1) and 272(2).“Assault” is defined in CCQ, s 245 and “Unlawful assault” is defined in CCQ, s 246. Generally speaking, the definition of “assault” in CCQ, s 245 consists of two limbs, as shown in Diagram 10.9.

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Diagram 10.9: The two limbs of the definition of assault

Section 245(2) of the CCQ provides examples of “applies force” where the degree of force causes injury or personal discomfort.These include applying heat, light, electrical force, gas, odour, or another substance or thing. According to CCQ, s 246, an assault is unlawful unless it is authorised, justified or excused by law. The question of whether a person has actual or apparent present ability to affect a threat, is a question of fact for the jury to decide in any particular case. The question is whether the person’s threat continues (is “on foot” or remains) or has past (completed, withdrawn, disabled or gone):  R v Secretary (1996) 86 A Crim R 119 at 122 per Angel J, Mildren J agreeing at 128. Empty threats do not amount to assault: R v Secretary (1996) 86 A Crim R 119 at 127 per Mildren J. Where a person threatens another person with future violence, and the threat is not withdrawn,, the assault may continue “on foot” even though the person who made the threat is later temporarily physically unable to carry out the threat, such as being asleep: R v Secretary (1996) 86 A Crim R 119 at 122 per Angel J, Mildren J agreeing at 128. This type of assault is labelled a “continuing assault” and is likely to arise where there is a history of physical and verbal abuse between two parties. Where an accused person mistakenly believes that they have been assaulted, such as by having a gun pointed at them and believing there is a threat of being shot, they may be able to rely on the excuse of mistake of fact, provided it is honest and reasonable: CCQ; CCWA, s 24; R v Allwood [1997] QCA 257 per McPherson  JA. In that situation, even though the accused person has not actually been assaulted, they will only be criminally responsible to the same extent as though they had been assaulted. Mistake of fact has limited scope when engaged with relation to s 271: Graham v R (2016) 333 ALR 447 at [35] per French CJ, Kiefel and Bell JJ.

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[10.90] 

Section 271(1) of the CCQ requires the accused person to use force that is reasonably necessary for defence. According to Williams  J in R v Hagarty [2001] QCA 558 at [34], this requires the jury to consider all the circumstances, the likely attack and the reasonable response in defending the attack. The likely attack is determined by looking at the facts objectively rather than from the accused person’s perspective or belief, but in many instances the two will coincide. For a discussion of the objective test for “reasonably necessary”, see Corker v Western Australia (2004) 146 A Crim R 33. Where an accused person delivers a series of blows on the other person, the blows are considered holistically without the need to consider whether a particular blow was reasonably necessary: R v Ellem (No 2) [1995] 2 Qd R 549 at 551 per Fitzgerald P, McPherson JA The availability of any practicable avenues of retreat must be taken into account in determining whether the accused person’s conduct is reasonable. For further discussion, see “Practicable retreat”.

Provoked [10.100] 

Where the other person unlawfully assaults the accused person, who does not provoke the assault, CCQ, s 271(1) applies: see [10.40]. Self-​defence under CCQ, s 271(2) applies where the accused person: • does not provoke the other person to assault them; or • provokes an assault, but not the assault in question: R v Muratovic [1967] Qd R 15 at 28. Where the accused person provokes an assault that causes a reasonable apprehension of death or grievous bodily harm, CCQ, s 272 applies. The definition of “provoke” is derived from CCQ, s 268: R v Prow [1990] 1 Qd R 64 at 86.

Reasonable apprehension of death or grievous bodily harm [10.110] 

Sections  271(2), 272(1) and 272(2) of the CCQ require the accused person to reasonably apprehend death or grievous bodily harm. This element can be determined by asking two questions (see Zecevic v DPP (1987) 162 CLR 645 and R v Julian (1998) 100 A Crim R 430):

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Force used reasonably necessary for defence

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• What did the accused actually believe? • Was the belief reasonable? In determining this subjective element, the jury is entitled to take into account previous threats to and assaults on the accused person by the other person: R v Muratovic [1967] Qd R 15 at 28; R v Faulkner [2017] QCA 301 at [44] per Morrison JA. The jury should be allowed to take into account any relevant warnings given to the accused person that the other person had made recent death threats or threats to cause serious injury to the accused person, and the threats had not been reconciled or withdrawn: R v Keith (1934) St R Qd 155 at [93]-​[94] per Henchman J; R v Corcoran (2000) 111 A Crim R 126 at [19] per McPherson JA. Where there is a history of abuse, threats of future abuse may be sufficient to cause the accused to have a reasonable apprehension of death or grievous bodily harm. There is no need for the accused to wait for the next event of actual of abuse for that abuse to be regarded as a triggering event for the reasonable apprehension: R v Secretary (1996) 86 A Crim R 119 at 129-​130 per Mildren J, quoting Lavallee [1990] 4 WWR 1 at 25-​26. The availability of any practicable avenues of retreat must be taken into account in determining whether the accused person’s apprehension is reasonable. For further discussion, see “Practicable retreat”.

Accused person’s belief [10.120] 

A fundamental distinction between CCQ, s 271(1) and 271(2) is the accused person’s belief. For the purposes of CCQ, s 271(1), the force that is “reasonably necessary to make effectual defence” is determined objectively. In contrast, for ss  271(2), 272(1) and 272(2), the accused person must actually believe on reasonable grounds that they cannot preserve themselves from death or grievous bodily harm in any other way than by using force, which is a subjective test: Marwey v The Queen [1977] HCA 68 at [13]-​[15] per Barwick CJ; R v Gray (1998) 98 A Crim R 589 at 593 per McPherson JA and R v Messent [2011] QCA 125 at [31]-​[33]. While the term “reasonable” is used in respect of the degree of force used, the accused’s personal belief is subjectively assessed. In R v Masters (1983) 24 A Crim R 65 at 67 per Thomas J, the accused person’s belief about the “physical prowess or the aggressive disposition” of the other person was important in determining whether the accused person had a reasonable belief that they could not otherwise preserve themselves from death or grievous bodily harm.

According to McPherson JA in R v Gray (1998) 98 A Crim R 589 at 593, this element does not additionally require that the accused person used a degree of force that was objectively necessary for their defence. On this point, see also R v Muratovic [1967] Qd R 15. Similarly, in Western Australia, CCWA, s  248(4)(b) requires an accused person to believe that the act is necessary in order to defend themselves or another from a harmful act (even a non-​imminent harmful act). This is determined subjectively even though the accused person’s belief must be based on reasonable grounds. In Goodwyn v Western Australia [2013] WASCA 141 at [172] per Mazza JA: What the fact finder is required to do is: (a) determine what, in the accused’s mind, were the circumstances surrounding the doing of the harmful act by the accused; and (b) having regard to the circumstances as the accused believed them to be, decide if the accused’s harmful act was a reasonable response.

The availability of any practicable avenues of retreat must be taken into account in determining whether the accused person’s belief is reasonable. For further discussion, see “Practicable retreat”.

Force intended to or likely to cause death or grievous bodily harm [10.130] 

Where the accused person uses force that is intended to or likely to cause death or grievous bodily harm, they may still argue self-​ defence pursuant to CCQ, ss 271(2), 272(1) or 272(2). Note that in these circumstances, self-​defence under CCQ, s 271(1) is not available. However, under s 271(1) the emphasis is on “intention” and “likely”, not on whether or not death or grievous bodily harm actually occurred: R v Prow (1989) 42 A Crim R 343 at 348 per Thomas J. Thus, justification under CCQ, s 271(1) may still be available for an unexpected death or grievous bodily harm. The accused person’s intention is determined subjectively, whereas the likelihood of death or grievous bodily harm occurring is determined objectively.

Practicable retreat [10.140] 

Practicable retreat is an express element of CCQ, s 272(2), but it is not an express element of self-​defence under CCQ, s 271(1), 271(2) or 272(1).

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However, the availability of any practicable avenues of retreat must be taken into account in determining whether the accused person’s conduct, beliefs or apprehensions are reasonable under CCQ, s  271(1), 271(2) or 272(1). Practicable avenues of retreat may include running away, hiding or locking one’s self in a room as an alternative to using force: Zecevic v DPP (1987) 25 A Crim R 163; R v Corcoran (2000) 111 A Crim R 126 at [18] per McPherson JA; and R v Howe (1958) 100 CLR 448 at 463-​464 per Dixon CJ. Further, in Randle v The Queen (1995) 81 A Crim R 113, Malcolm CJ stated at 124 that:  “[t]‌he opportunity to retreat may be relevant to the existence of reasonable grounds for the belief in the necessity for self-​ preservation” under CCWA, s 248(4). For the purposes of CCQ, s 272(2), where an accused person begins with a murderous intent –​that is, they intend to kill or do grievous bodily harm –​ they cannot raise self-​defence unless before taking action they declined further conflict and quitted it or retreated as far as practicable: R v Muratovic [1967] Qd R 15 at 28 per Hart J. The law of self-​defence does not require a person to retreat from his or her home instead of acting in self-​defence: R v Secretary (1996) 86 A Crim R 119 at 131 per Mildren J.

Battered woman syndrome [10.150] 

Battered woman syndrome evidence is not a defence, excuse or justification, but it does support provocation and self-​defence. According to Kirby  J in Osland v The Queen (1998) 197 CLR 316 at 378 [169], in particular, such evidence may assist the court to determine: (1) Why a person subjected to prolonged and repeated abuse would remain in such a relationship; (2)  the nature and extent of the violence that may exist in such a relationship before producing a response; (3) the accused’s ability, in such a relationship, to perceive danger from the abuser; and (4) whether, in the evidence, the particular accused believed on reasonable grounds that there was no other way to preserve herself or himself from death or grievous bodily harm than by resorting to the conduct giving rise to the change.

Battered woman syndrome evidence is not confined to married couples or females. The evidence is also relevant to de facto relationships, same-​sex relationships and where a male is the other person:  Osland v The Queen (1998) 197 CLR 316 at 370 [158] per Kirby J.

Defending another person [10.160] 

A person may defend another person without the need to establish a special duty or relationship: CCQ, s 273.

In raising this justification, it needs to be determined whether it would have been lawful for the protected person to use such force to protect themselves, which requires an application of CCQ, s 271(1) or 271(2). It then needs to be determined whether the accused person who protected another acted in good faith and used a degree of force similar to that permitted by the protected person under CCQ, s 271(1) or 271(2).

Elements toolbox [10.170] 

References to “accused person”, “other person” and “protected person” have been added in brackets where appropriate to help clarify the elements. The elements of self-​defence in CCQ, s 271(1) are: 1.

(Accused) person is unlawfully assaulted

2.

(Accused) person did not provoke the unlawful assault

3.

Lawful for the (accused) person to use such force on the assailant (other person) as is reasonably necessary to effect defence against the unlawful assault

4.

Force not intended or likely to cause death or grievous bodily harm.

The elements of self-​defence in CCQ, s 271(2) are: 1.

(Accused) person is unlawfully assaulted

2.

(Accused) person did not provoke the unlawful assault

3.

Nature of unlawful assault causes (accused) person to have reasonable apprehension of death or grievous bodily harm

4.

(Accused) person believes on reasonable grounds that they must use force, because they cannot otherwise preserve themselves from death or grievous bodily harm.

5.

Lawful for the (accused) person to use force necessary for defence, even though it may cause death or grievous bodily harm.

The elements of self-​defence in CCQ, s 272(1) are: 1.

Without intent to kill or do grievous bodily harm;

2.

(Accused) person:

3.

(a)

unlawfully assaults another (other) person; OR

(b)

provokes an assault from another (other) person

Provoked (other) person responds by assaulting the (accused) person with such violence as to cause reasonable apprehension of death or grievous bodily harm

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4.

Provoked (other) person induces the (accused) person to believe on reasonable grounds that it is necessary to use force to preserve themselves from death or grievous bodily harm

5.

(Accused) person is not criminally responsible for such force even though it may cause death or grievous bodily harm

The elements of self-​defence in CCQ, s 272(2) are: 1.

With intent to kill or do grievous bodily harm;

2.

(Accused) person: (a)

unlawfully assaults another (other) person; OR

(b)

provokes an assault from another (other) person

3.

Before the necessity for self-​preservation arises the (accused) person declines further conflict and quits it or retreats as far as practicable

4.

Provoked (other) person then assaults the “retreating” (accused) person with such violence as to cause reasonable apprehension of death or grievous bodily harm

5.

Provoked (other) person induces the “retreating” (accused) person to believe on reasonable grounds that it is necessary to use force to preserve themselves from death or grievous bodily harm

6.

“Retreating” (accused) person is not criminally responsible for such force even though it may cause death or grievous bodily harm

The elements of self-​defence in CCQ, s 273 are: 1.

2.

Where it is lawful for a (protected) person to use force of any degree to defend themselves against an unlawful assault (a)

protected person in circumstances as detailed under CCQ, s 271(1); OR

(b)

protected person in circumstances as detailed under CCQ, s 271(2)

It is lawful for (accused) person acting in good faith to use a like degree of force to defend the (protected) person.

The elements of self-​defence in CCWA, ss 248(2) and 248(4), which results in a full acquittal, are: 1.

Harmful act done in self-​defence is lawful:

2.

If the (accused) person reasonably believes their harmful act is necessary to defend themselves or another (protected) person from a harmful act (even a non-​imminent harmful act) being conducted by the (other) person.

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If the (accused) person’s harmful act is a reasonable response in the circumstances as the (accused) person reasonably believes them to be

The elements of self-​defence (excessive self-​defence) in CCWA, s 248(3), which reduces murder to manslaughter, are: 1.

Where an (accused) person intentionally unlawfully kills (murders) another (other) person:

2.

If the (accused) person reasonably believes their harmful act is necessary to defend themselves or another (protected) person from a harmful act (even a non-​imminent harmful act) being conducted by the (other) person.

3.

If the (accused) person’s harmful act is NOT a reasonable response in circumstances as the (accused) person reasonably believes them to be.

4.

(Accused) person is guilty of manslaughter and not murder

Under CCWA, ss 248(2) and 248(3), there is no self-​defence where: 1.

An (accused) person does a harmful act to defend themselves or another from a lawful harmful act: CCWA, s 248(5)

2.

A harmful act is not lawful just because the (accused) person doing it is not criminally responsible for it: CCWA, s 248(6)

In CCWA, s 248(1), “harmful act” is defined as an act that is an element of an offence under this Part other than Ch XXXV, which relates to criminal defamation.

Guide to problem solving [10.180]  Queensland: CCQ, s 271(1) • Does the accused person bear the onus of proving self-​defence? • Did the other person make an unlawful, unprovoked assault against the accused person? • Did the accused person use force reasonably necessary for defence? • Did the accused person use force not intended or likely to cause death or grievous bodily harm? • Did the accused person have any practicable avenues of retreat? • What is the effect of self-​defence? Queensland: CCQ, s 271(2) • Does the accused person bear the onus of proving self-​defence? • Did the other person make an unlawful, unprovoked assault on the accused person?

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3.

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• Did the accused person have a reasonable apprehension of death or grievous bodily harm? • Did the accused person believe on reasonable grounds that they could not preserve themselves from death or grievous bodily harm other than by the force used? • Did the accused person use force against the other person? • Did the accused person have any practicable avenues of retreat? • What is the effect of self-​defence? Queensland: CCQ, s 272(1) • Does the accused person bear the onus of proving self-​defence? • Did the accused person unlawfully assault the other person? • Did the accused person provoke an assault from the other person? • Did the accused person initially use force not intended to kill or do grievous bodily harm to the other person? • Did the other person assault the accused person? • Did the accused person have a reasonable apprehension of death or grievous bodily harm? • Did the accused person believe on reasonable grounds that they could not preserve themselves from death or grievous bodily harm other than by the force used? • Did the accused person use force against the other person? • Did the accused person have any practicable avenues of retreat? • What is the effect of self-​defence? Queensland: CCQ, s 272(2) • Does the accused person bear the onus of proving self-​defence? • Did the accused person unlawfully assault the other person? • Did the accused person provoke an assault from the other person? • Did the accused person initially use force intended to kill or do grievous bodily harm to the other person? • Did the accused person decline further conflict and quit it or retreat as far as practicable? • Did the other person assault the accused person? • Did the accused person have a reasonable apprehension of death or grievous bodily harm? • Did the accused person believe on reasonable grounds that they could not preserve themselves from death or grievous bodily harm other than by the force used? • Did the accused person use force against the other person? • What is the effect of self-​defence? Queensland: CCQ, s 273 • Does the accused person bear the onus of proving self-​defence? • Did the accused person protect a third person?

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• Did the accused person act in good faith? • Did the accused person use force against the another (other) person to protect a third person (protected person)? • What is the effect of self-​defence? Western Australia: CCWA, ss 248(2) and 248(4) (full acquittal) • Does the accused person bear the onus of proving self-​defence? • Did the accused person do a harmful act to the other person? • Did the accused person reasonably believe that their harmful act was necessary to defend themselves or another (protected) person from a harmful act (even a non-​imminent harmful act) being conducted by the other person? • Was the accused person’s harmful act a reasonable response to the circumstances as they reasonably believed them to be? • What is the effect of self-​defence? Western Australia: CCWA, s 248(3) (reduces murder to manslaughter) • Does the accused person bear the onus of proving self-​defence? • Did the accused person unlawfully kill the other person? • Did the accused person reasonably believe that their harmful act was necessary to defend themselves or another (protected) person from a harmful act (even a non-​imminent harmful act) being conducted by the other person? • Was the accused person’s harmful act NOT a reasonable response to the circumstances as they reasonably believed them to be? • What is the effect of self-​defence?

Revision questions 1.

Where an accused person actually causes the death of another person, under which provisions may they argue self-​defence?

2.

Does self-​defence rely on proving provocation first?

3.

Is self-​defence a defence?

4.

In Queensland, when can an accused person argue self-​defence to protect a third person?

5.

In Western Australia, what does harmful act mean?

6.

Is it always necessary to establish assault when raising self-​defence?

7.

In Queensland, can an accused person raise self-​ defence under CCQ, s 272 if they initially intended to kill or do grievous bodily  harm?

8.

What beliefs must an accused person have before they can raise self-​defence?

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• Did the accused person use force that would have been lawful if the third person (protected person) had used it in self-​defence?

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9.

Is practicable retreat an express element of self-​defence?

10. How is battered woman syndrome evidence relevant to self-​defence?

Problem questions 1.

Angus and Victor had been acquaintances for years and they randomly met at a casino. During a card game, Angus got close to Victor’s face, called him “a cheater”, and “shoved” him. Victor held up his beer glass as though he was about to strike Angus in the face with it. Angus knew that Victor was quick-​ tempered and had previously glassed a person in the face at a hotel. Angus feared that he would lose his eyesight. Angus then delivered a single, heavy blow to Victor’s face, pushing Victor backwards and causing him to land on the back of his head. Angus walked away from the card table. Soon afterwards, Victor died. Advise Angus whether he can raise self-​defence.

2.

On the same facts as in (1) above, assume that instead of Angus delivering a single, heavy blow, the casino croupier, Cassie, stepped in and punched Victor when he raised his beer glass, also causing Victor to die. Cassie knows that the media recently drew attention to the severe injuries caused by being glassed, including loss of eyesight, and breaking cheekbones and nose. Advise the Cassie whether she can raise self-​defence.

Answers to revision questions 1.

In Queensland, an accused person who causes the death of another (other) person may argue self-​ defence under CCQ, s 271(1), 271(2), 272(1), s 272(2) or 273. Note that CCQ, s 271(1) may apply even though the accused person has actually caused death since the key to this provision is that the accused person does not intend to cause death and that the force used is not likely to cause death. In Western Australia, an accused person who causes death of another (other) person may argue self-​ defence under CCWA, s 248(2) or 248(3).

2.

CCQ, s 271(1) and 271(2) require that other person initiates the incident by making an unlawful unprovoked assault on the accused person. Section 272(1) and 272(2) apply when an accused person initiates the incident and provokes an assault from the other person. In contrast, the self-​defence provisions in Western Australia do not contain an element of provocation.

3.

Self-​ defence pursuant to CCQ, s 271(1), 271(2) and s 273; and CCWA, s 248(2) are technically justifications because

they contain the word “lawful”. Self-​defence pursuant to CCQ, s 272(1) and 272(2); and CCWA, s 248(3) are excuses because they contain the words “not criminally responsible”. 4.

CCQ, s 273 specifies that an accused person who defends a third person must act in good faith. Further, it must have been lawful for the third (protected) person to have used the same level of force used by the accused person. It would have been lawful for the third (protected) person to use force in self-​defence in the circumstances detailed under CCQ, s 271(1) and 271(2).

5.

“Harmful act” is defined in CCWA, s 248(1) as “an act that is an element of an offence under this Part [Part V] other than Chapter XXXV”. Part V of CCWA canvasses a wide range of offences, including assaults and violence to the person, homicide, suicide, concealment of birth, offences endangering life or health, sexual offences, offences against liberty, threats, stalking, and offences relating to parental rights and duties. The term “harmful act” does not apply to the offence of criminal defamation, which is provided in CCWA, Ch XXXV and, more specifically, s 345.

6.

Assault is an element of CCQ, s 271(1), 271(2), 272(1) and 272(2). When applying CCQ, s 273 it is necessary to determine whether the protected person could have lawfully used the same force used by the accused person. Thereby building on to CCQ, s 271(1) and 271(2), and therefore requiring “assault” to be established. In Western Australia, the provisions hinge around whether the act is a “harmful act”. If the act is an element of an assault offence (provided in Chs XXVI, XXX and XXXI of the CCQ), then assault will need to be established.

7.

Yes, an accused person may raise CCQ, s 272(2) if they initially intended to kill or do grievous bodily harm, provided that they declined further conflict and quitted it or retreated as far as practicable: R v Muratovic [1967] Qd R 15 at 28 per Hart J.

8.

Section 271(1) of the CCQ does not require an accused person to have any specific beliefs before they can rely on self-​defence. For the purposes of CCQ, ss 271(2), 272(1) and 272(2), an accused person must have a reasonable apprehension of death or grievous bodily harm and believe on reasonable grounds that they cannot preserve themselves from death or grievous bodily harm other than by the force used. While CCQ, s 273 does not require an accused person to have a specific belief, it does require them to act in good faith. Section 248(2) and 248(3) of the CCWA require an accused person to believe that their harmful act is necessary to defend themselves or another (protected) person from a harmful act (even a non-​ imminent harmful act). Section 248(2) of the CCWA also requires the accused person’s harmful act to be a reasonable response to the circumstances as they reasonably believed them to be.

9.

Practicable retreat is an express element of CCQ, s 272(2), but it is not expressly required by CCQ, s 271(1), 271(2), 272(1) or s 273; or CCWA, s 248(2) or 248(3). However, the availability of

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practicable avenues of retreat is taken into account even where it is not an express element to because it may help determine the reasonableness of the accused person’s conduct, beliefs or apprehensions. 10.

Battered woman syndrome evidence is relevant to self-​defence because it helps the court to understand the following issues noted in Osland v The Queen (1998) 197 CLR 316 at 378 [169]: (1) Why a person subjected to prolonged and repeated abuse would remain in such a relationship; (2) the nature and extent of the violence that may exist in such a relationship before producing a response; (3) the accused’s ability, in such a relationship, to perceive danger from the abuser; and (4) whether, in the evidence, the particular accused believed on reasonable grounds that there was no other way to preserve herself or himself from death or grievous bodily harm than by resorting to the conduct giving rise to the charge.

Answers to problem questions QUESTION 1 Queensland The relevant self-​defence provision here is CCQ, s 272. Note that CCQ, s 271(1) and 271(2) do not apply. The reason for this is that Victor has not initially made an unlawful, unprovoked assault against Angus. CCQ, s 272 applies because Angus unlawfully assaulted Victor in the first instance. In answering this problem question, the following issues will need to be raised. Does Angus bear the onus of proving self-​defence? Self-​ defence pursuant to CCQ, s 272 contains the words “not criminally responsible” so it is an excuse. Therefore, Angus bears the legal and evidentiary burden of raising the evidence for the excuse, and the prosecution must negative the excuse beyond reasonable doubt. Note that Angus simply needs to raise evidence of the excuse and does not need to prove it on the balance of probabilities nor beyond reasonable doubt: Strong v Woolworths Ltd (2012) 246 CLR 182 at [50]-​ [51] per Heydon J; Woolmington v DPP [1935] AC 462. Did Angus unlawfully assault Victor? “Assault” is defined in CCQ, s 245. It consists of two limbs. The first limb applies where the accused person has used force without the consent of the other person. The second limb applies where the accused person by a bodily act or gesture attempts or threatens to apply

force without the consent of the other person and in circumstances where the accused person has the actual or apparent present ability to carry out the purpose. Limb 1 of CCQ, s 245 applies here because Angus has moved close to Victor’s face, called him “a cheater”, and “shoved” him. Pushing Victor demonstrates an application of force. The degree of force used must cause injury or personal discomfort: CCQ, s 245(2). While there is no evidence that Victor suffered any injury from being “shoved”, he arguably suffered personal discomfort from having Angus close to his face, calling him a cheater and being shoved. According to CCQ, s 246, an assault is unlawful unless it is authorised, justified or excused by law. Angus’ assault on Victor has not been authorised, justified or excused by law, and therefore Angus has unlawfully assaulted Victor. OR Did Angus provoke an assault from Victor? As we have already established that Angus unlawfully assaulted Victor, there is no need to prove that Angus provoked an assault from Victor. However, for completeness, the definition of “provoke” is derived from CCQ, s 268: R v Prow [1990] 1 Qd R 64 at 86. Did Angus initially intend to kill or do grievous bodily harm to Victor? If Angus initially intended to kill or do grievous bodily harm, he cannot raise self-​ defence under CCQ, s 272(1). However, he may still raise self-​defence under CCQ, s 272(2) if he retreated as far as practicable before he needed to defend himself. Even though Angus moved close to Victor’s face, called him “a cheater”, and “shoved” him, there is no evidence to suggest that Angus initially intended to kill or do grievous bodily harm to Victor. Thus, Angus may raise self-​defence under CCQ, s 272(1). Did Victor assault Angus? The definition of “assault” under CCQ, ss 245 and 246 is discussed above. In this case, the second limb of CCQ, s 245 applies because Victor has raised his glass in the air (“bodily act or gesture”) and threatened to apply force by striking Angus in the face, without his consent. Victor has the actual or apparent present ability to carry out the threat because he has a glass in his hand and has previously glassed another person in a hotel. Consequently, Victor has assaulted Angus. Did Angus reasonably apprehend death or grievous bodily harm? In determining this element, it is important to determine what Angus actually believed and whether this belief was reasonable: Zecevic v DPP (1987) 162 CLR 645; and R v Julian (1998) 100 A Crim R 430.

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In determining this subjective element, the jury is entitled to take into account previous threats to and assaults on Angus by Victor: R v Muratovic [1967] Qd R 15 at 28. There is no evidence to suggest that Victor had made threats to Angus, nor that he had previously assaulted Angus. The availability of any practicable avenues of retreat must be taken into account in determining whether the accused person’s apprehension is reasonable: Zecevic v DPP (1987) 25 A Crim R 163; R v Corcoran (2000) 111 A Crim R 126 at [18] per McPherson JA; and R v Howe (1958) 100 CLR 448 at 463-​464 per Dixon CJ. Angus apprehended that he would lose his eyesight, which is grievous bodily harm. This fear is reasonable given the nature of injury likely to be sustained when struck in the face with a glass and that Angus knew that Victor had glassed another person previously in a hotel. Did Angus believe on reasonable grounds that he could not preserve himself from death or grievous bodily harm other than by the force he used? While the term “reasonable” is used in this element, Angus’ belief is assessed subjectively. Angus knew that Victor was quick-​ tempered and had previously glassed another person in the face at a hotel. This should be taken into account in determining whether Angus had a reasonable belief that they could not otherwise preserve themselves from death or grievous bodily harm: R v Masters (1983) 24 A Crim R 65 at 67 per Thomas J. This element does not additionally require that Angus used force that is objectively necessary for the defence: R v Gray (1998) 98 A Crim R 589 at 593 McPherson JA; R v Messent [2011] QCA 125 at [31]-​[33]. See also R v Muratovic [1967] Qd R 15. The availability of any practicable avenues of retreat must be taken into account in determining whether the accused person’s belief is reasonable:  Zecevic v DPP (1987) 25 A Crim R 163; R v Corcoran (2000) 111 A Crim R 126 at [18] per McPherson JA; and R v Howe (1958) 100 CLR 448 at 463-​464 per Dixon CJ. Angus retreated when he walked away from the card table: R v Muratovic [1967] Qd R 15. However, he did this only after he had delivered a single, heavy blow to Victor’s face, and it should be questioned whether Angus should have walked away earlier, or moved backwards when Victor raised his glass in the air. Did Angus use reasonable force against Victor? “Force” is not defined in the CCQ for the purpose of s 272(1). However, Angus delivered a single, heavy blow to Victor’s face, pushing Victor backwards and causing him to land on the back of his head. Thus, Angus used force against Victor. The availability of any practicable avenues of retreat must be taken into account in determining whether the accused person’s conduct is reasonable:Zecevic v DPP (1987) 25 A Crim R 163; R v Corcoran (2000) 111

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What is the effect of self-​defence? If Angus successfully argues the elements of self-​ defence in CCQ, s 272(1), he will be held “not criminally responsible” for Victor’s death. However, this will not necessarily result in a full acquittal, it may result in a full acquittal, or only a downgraded offence and potentially reduced sentence. Western Australia A relevant self-​defence provision here is CCWA, s 248(2) and 248(4). Does Angus bear the onus of proving self-​defence? Self-​defence pursuant to CCWA, s 248(2) contains the word “lawful”, so it is a justification. Therefore, Angus bears the legal and evidentiary burden of raising the evidence for self-​ defence, and the prosecution must negative the justification beyond reasonable doubt. Note that Angus simply needs to raise evidence of the self-​defence and does not need to prove it on the balance of probabilities, nor beyond reasonable doubt:  Strong v Woolworths Ltd (2012) 246 CLR 182 at [50]-​ [51] per Heydon J; Woolmington v DPP [1935] AC 462. Did Angus do a harmful act to Victor? Angus delivered a single, heavy blow to Victor’s face. This is a harmful act (CCWA, s 248(1)) as the application of force is an element of assault, and may even constitute grievous bodily harm, depending on the injury sustained. Ultimately, Victor died and an act that is an element of homicide is a harmful act. Did Angus reasonably believe that the act was necessary to defend himself from a harmful act (even a non-​imminent harmful act)? This belief is determined subjectively even though the accused person’s belief must be based on reasonable grounds: Goodwyn v Western Australia [2013] WASCA 141 at [172] per Mazza JA. In particular: What the fact finder is required to do is: (a) determine what, in the accused’s mind, were the circumstances surrounding the doing of the harmful act by the accused; and (b) having regard to the circumstances as the accused believed them to be, decide if the accused’s harmful act was a reasonable response. Threatening to strike Angus in the face with his glass by raising his glass in the air was a harmful act by Victor: CCWA, s 248(1). The reason for this is that the threatened application of force is an element of assault: CCWA, s 222. The availability of any practicable avenues of retreat must be taken into account in determining whether the accused person’s belief

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A Crim R 126 at [18] per McPherson JA; and R v Howe (1958) 100 CLR 448 at 463-​464 per Dixon CJ.

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is reasonable: Randle v The Queen (1995) 81 A Crim R 113 at 124 per Malcolm CJ. Angus did reasonably believe that punching Victor in the face was necessary to defend himself from being glassed in the face and to protect his eyesight. Was Angus’ harmful act a reasonable response in the circumstances as Angus reasonably believed them to be? Victor’s threatening action in raising his glass in the air as if to strike Angus in the face was a harmful act: CCWA, s 248(1). This is because the threatened application of force is an element of assault: CCWA, s 222. As noted above, this belief is determined subjectively according to Goodwyn v Western Australia [2013] WASCA 141 at [172] per Mazza JA. Angus believed that delivering a single, heavy blow to Victor’s face was a reasonable response, particularly given that he knew that Victor was quick-​ tempered and that he had previously glassed another person in the face at a hotel. The availability of any practicable avenues of retreat must be taken into account in determining whether the accused person’s conduct is reasonable: Randle v The Queen (1995) 81 A Crim R 113 at 124 per Malcolm CJ. What is the effect of self-​defence? If Angus successfully argues the elements of self-​defence in CCWA, s 248(2) and 248(4), it will result in a full acquittal. A further relevant self-​defence provision here is CCWA, s 248(3), which should be discussed for completeness. Does Angus bear the onus of proving self-​defence? Self-​ defence pursuant to CCWA, s 248(3) does not result in a full acquittal, so it is not a justification, it is only an excuse. Under an excuse, Angus bears the legal and evidentiary burden of raising the evidence of self-​defence, and the prosecution must negative self-​defence beyond reasonable doubt. Note that Angus simply needs to raise evidence of provocation and does not need to prove it on the balance of probabilities, nor beyond reasonable doubt: Strong v Woolworths Ltd (2012) 246 CLR 182 at [50]-​[51] per Heydon J; Woolmington v DPP [1935] AC 462. Did Angus unlawfully kill Victor? Angus delivered a single, heavy blow to Victor’s face, which caused him to fall backwards, hit his head on the ground and ultimately die. Thus, Angus unlawfully killed Victor. Did Angus reasonably believe that the act was necessary to defend himself from a harmful act (even a non-​imminent harmful act)? By raising his glass in the air and threatening to strike Angus in the face, Victor did a harmful act: CCWA, s 248(1). This is because the threatened application of force is an element of assault: CCWA, s 222.

The availability of any practicable avenues of retreat must be taken into account in determining whether the accused person’s belief is reasonable: Randle v The Queen (1995) 81 A Crim R 113 at 124 per Malcolm CJ. Angus did reasonably believe that punching Victor in the face was necessary to defend himself from being glassed in the face and to protect his eyesight. What is the effect of self-​defence? If Angus successfully argues the elements of self-​defence in CCWA, s 248(3), it will only result in a downgraded offence and potential reduced sentence, because it will only reduce murder to manslaughter. QUESTION 2 Queensland The relevant self-​defence provision here is CCQ, s 273. In answering this problem question, the following issues will need to be raised. Does Cassie bear the onus of proving self-​defence? Self-​defence pursuant to CCQ, s 273 contains the word “lawful” so it is a justification. Therefore, Cassie bears the legal and evidentiary burden of raising some evidence of the self-​defence, and the prosecution must negative the self-​defence beyond reasonable doubt. Note that Cassie simply needs to raise evidence of the self-​defence and does not need to prove it on the balance of probabilities, nor beyond reasonable doubt:  Strong v Woolworths Ltd (2012) 246 CLR 182 at [50]-​ [51] per Heydon J; Woolmington v DPP [1935] AC 462. Did Cassie protect a third person? Note that there does not need to be a special relationship between Cassie (the accused person using force) and Angus (the protected person) before CCQ, s 273 applies. Cassie punched Victor, who had raised his glass in the air as though he was about to strike Angus in the face. Cassie protected Angus from being hit by the glass. Did Cassie use force that would have been “lawful” if Angus had used it in self-​defence? Cassie’s force involved punching Victor, which resulted in him hitting his head on the ground and passing away. This force is “lawful” provided that it would be “lawful” if Angus used this same force. As discussed in (1) above, pursuant to CCQ, s 272(1), it was NOT “lawful” for Angus to punch Victor in the face, Angus was only held to be “not criminally responsible” for the forced he used. Did Cassie act in good faith? The notion of “good faith” is not defined in the CCQ. There are no facts to suggest that Cassie did not act in good faith. She simply punched

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Victor to protect Angus from being struck in the face by the glass and to protect his eyesight. Did Cassie use force against Victor? Yes, Cassie punched Victor in the face. What is the effect of self-​defence? Self-​defence pursuant to CCQ, s 273 contains the word “lawful” so is a justification. Therefore, if Cassie is successful in arguing self-​ defence, she will receive a full acquittal for punching Victor in the head which ultimately caused him to hit his head on the ground and pass away. However, it was NOT lawful for Angus to punch Victor in the head, therefore, it is unlikely that Cassie could successfully argue self-​defence pursuant to CCQ, s 273. Cassie should have first attempted to make a citizen’s arrest on Victor, pursuant to CCQ, s 546, and only used reasonable force against Victor in her own self-​defence, or to carry out the citizen’s arrest, which may include lethal force, pursuant to CCQ, ss 254, 260 and 258(2). Western Australia A relevant self-​defence provision here is CCWA, ss 248(2) and 248(4). Does Cassie bear the onus of proving self-​defence? Self-​ defence pursuant to CCWA, ss 248(2) and 248(4) contains the word “lawful” so is a justification. Therefore, Cassie bears the legal and evidentiary burden of raising some evidence of the self-​ defence, and the prosecution must negative the self-​defence beyond reasonable doubt. Note that Cassie simply needs to raise evidence of the self-​ defence and does not need to prove it on the balance of probabilities, nor beyond reasonable doubt: Strong v Woolworths Ltd (2012) 246 CLR 182 at [50]-​[51] per Heydon J; Woolmington v DPP [1935] AC 462. Did Cassie do a harmful act to Victor? Cassie punched Victor in the face. This is a harmful act according to CCWA, s 248(1) because the application of force is an element of assault, and may even constitute grievous bodily harm, depending on the injury sustained. Ultimately, Victor died and an act that is an element of homicide is a harmful act. Did Cassie reasonably believe that the act was necessary to defend herself or another from a harmful act (even a non-​imminent harmful act)? This belief is determined subjectively even though the accused person’s belief must be based on reasonable grounds: Goodwyn v Western Australia [2013] WASCA 141 at [172] per Mazza JA. In particular,

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(a) determine what, in the accused’s mind, were the circumstances surrounding the doing of the harmful act by the accused; and (b) having regard to the circumstances as the accused believed them to be, decide if the accused’s harmful act was a reasonable response. When Victor raised his glass in the air and was about to strike Angus in the face with it, there was an imminent harmful act. The availability of any practicable avenues of retreat must be taken into account in determining whether the accused person’s belief is reasonable: Randle v The Queen (1995) 81 A Crim R 113 at 124 per Malcolm CJ. Cassie did reasonably believe that punching Victor was necessary to defend Angus from being glassed in the face and to protect his eyesight. Cassie’s belief is reasonable, particularly in the light of recent media reports drawing attention to the severe injuries that can be caused by glassing, including loss of eyesight, and the breaking of a person’s cheekbones and nose. Was Cassie’s harmful act a reasonable response in the circumstances as Cassie reasonably believed them to be? Cassie may reasonably have believed that punching Victor in the face was a reasonable response in order to stop Victor from glassing Angus in the face. However, Cassie should anticipate that the prosecution may rely on the recent community campaign, “one punch can kill”, which may mean that her response is not considered to have been reasonable.1 Furthermore, the availability of any practicable avenues of retreat must be taken into account in determining whether the accused person’s conduct is reasonable: Randle v The Queen (1995) 81 A Crim R 113 at 124 per Malcolm CJ. What is the effect of self-​defence? Self-​defence pursuant to CCWA, ss 248(2) and 248(4) results in the best outcome for Cassie because it is a full acquittal. A further relevant self-​defence provision here is CCWA, s 248(3). Does Cassie bear the onus of proving self-​defence? Self-​ defence pursuant to CCWA, s 248(3) does not result in a full acquittal, so it is not a justification, it is only an excuse. Under an excuse,

1

The “one punch can kill” campaign was mentioned in R v Dean [2009] QCA 309 at [7]‌per McMurdo P.

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What the fact finder is required to do is:

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Cassie bears the legal and evidentiary burden of raising some evidence of self-​defence, and the prosecution must negative self-​defence beyond reasonable doubt. Note that Cassie simply needs to raise evidence of self-​defence and does not need to prove it on the balance of probabilities, nor beyond reasonable doubt: Strong v Woolworths Ltd (2012) 246 CLR 182 at [50]-​[51] per Heydon J; Woolmington v DPP [1935] AC 462. Did Cassie unlawfully kill Victor? Cassie punched Victor in the face, which caused him to fall backwards, hit his head on the ground and ultimately die. Thus, Cassie unlawfully killed Victor. Did Cassie reasonably believe that the act was necessary to defend herself or another from a harmful act (even a non-​imminent harmful act)? When Victor raised his glass in the air and was about to strike Angus in the face with it, there was an imminent harmful act. The availability of any practicable avenues of retreat must be taken into account in determining whether the accused person’s belief is reasonable: Randle v The Queen (1995) 81 A Crim R 113 at 124 per Malcolm CJ. Cassie did reasonably believe that punching Victor was necessary to defend Angus from being glassed in the face and to protect his eyesight. Cassie’s belief was reasonable, particularly in the light of recent media reports drawing attention to the severe injuries that can be caused by glassing, including loss of eyesight and the breaking of a person’s cheekbones and nose. What is the effect of self-​defence? Self-​ defence pursuant to CCWA, ss 248(3) and 248(4) only results in a downgraded offence and potential reduced sentence for Cassie, because it only reduces murder to manslaughter.

Critical thinking questions 1.

Discuss when (if at all) it is appropriate to raise both self-​defence and provocation on the same facts.

2.

Should self-​defence only reduce murder to manslaughter?

3.

What are the possible interpretations of otherwise in CCQ, s 271(2)? Why have the courts chosen the current interpretation?

4.

Why do you think retreat is not an express element of CCQ, s 271 or CCWA, s 248?

5.

How could the level of force used by an accused person in self-​ defence be assessed? What assessment favours an accused person?

6.

Discuss how (if at all) an accused person’s culpability is relevant to self-​defence.

7.

Identify the subjective and objective components of self-​defence in its various forms in Queensland and Western Australia.

8.

Identify case law where battered woman syndrome evidence has been used to support self-​defence. Why was this evidence relevant in these cases?

9.

Do you think the self-​ defence of third persons should be limited to prescribed relationships? If so, why? What types of relationships should be covered?

10.

How could self-​defence be simplified or reformed in Queensland and Western Australia?

Readings • T Crofts, K Burton, R Martin, T Nisbet and S Tarrant, Criminal Codes: Commentary and Materials (7th ed, Thomson Reuters/​ Lawbook Co., 2018) Ch 8. • T Crofts, LexisNexis Study Guide: Criminal Law in Queensland and Western Australia (LexisNexis, Sydney, 2nd ed, 2014) Ch 9. • K Burton, LexisNexis Questions and Answers: Criminal Law in Queensland and Western Australia (2nd ed, LexisNexis, Sydney, 2015) Ch 12.

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CHAPTER 11 Learning outcomes .........................................................................   397 [11.10] Principles.................................................................................  398 [11.10] Onus of proving act independent of will and accident..........................  398 [11.20] Act.........................................................................................  399 [11.30] Independent of will.....................................................................  400 [11.40] Event......................................................................................  401 [11.50] Accident..................................................................................  402 [11.60] Eggshell skull rule......................................................................  404 [11.70] Criminal negligence....................................................................  405 [11.80] Intention and motive...................................................................  409 [11.90] Elements toolbox................................................................   410 [11.100] Guide to problem solving..................................................   412 Revision questions .........................................................................   413 Problem question ...........................................................................   413 Answers to revision questions .......................................................   414 Answer to problem question .........................................................   415 Critical thinking questions .............................................................   418 Readings .........................................................................................   418

Learning outcomes This chapter will enable you to: • Understand who bears the burden of proving an act is independent of will and accident • Identify the “act” for the purposes of an act independent of will • Determine whether an accused person has acted independently of their will • Identify the “event” for the purposes of accident

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Acts Independent of Will and Accident

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• Determine whether there is an accident • Understand whether the eggshell skull rule prevents the accused person from being criminally responsible • Understand that accident and an act independent of will are not available as excuses to criminal negligence • Locate the duties to preserve human life • Understand that a duty by itself is not an offence • Distinguish negligence from intention, motive, recklessness and carelessness • Distinguish criminal negligence from civil negligence

PRINCIPLES Onus of proving act independent of will and accident [11.10] 

While act independent of will and accident are commonly called “defences”, technically they are both excuses. The difference between a true defence, a justification and an excuse is critical to the onus and standard of proof. An accused person may bear the legal and introductory evidentiary burden of raising some evidence of an act independent of will and accident, and the prosecution must negative the excuses beyond a reasonable doubt. Note that an accused person may simply need to raise evidence of the excuses and does not need to prove them on the balance of probabilities, nor beyond reasonable doubt: Strong v Woolworths Ltd (2012) 246 CLR 182 at [50]-​[51] per Heydon J; Woolmington v DPP [1935] AC 462.1 Diagram 11.1 illustrates the key provisions and principles underpinning the excuses of acts independent of will and accident.

1

The requirement that the prosecutor must prove the guilt of an accused person rather than an accused person having to prove their innocence is commonly referred to as the “golden thread of the criminal law”: see Woolmington v DPP at 481-​2 per Viscount Sankey.

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Diagram 11.1: Excuses of act independent of will and accident

Act [11.20] 

The scope of the “act” is integral to the excuse of act independent of will:  CCQ, s  23(1)(a); CCWA, s  23A(1) and 23A(2). The term is not defined in either the CCQ or CCWA. The narrower the construction of “act”, the harder it is for the prosecution to show that the accused person willed the act. For example, in the case of an accused person who shoots another person dead, if the act is construed as contracting the trigger finger –​that is, the immediate physical movement  –​there is a confined amount of time in which the accused person would have thought about the act and therefore willed it:  Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26 at [50]. This approach has been criticised because it “over-​refines the application of the criminal law” and introduces “distinctions that are not based upon substantial differences”: at [51]. An “act” is the actual physical movement, not the consequence of a physical movement: R v Taiters [1997] 1 Qd R 333 at 335; [1996] QCA 232. In the context of a fatal shooting, the concept of “act” is not broad enough to include the fatal wounding: R v Falconer (1990) 171 CLR 30;

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[1990] HCA 49 at [7]‌per Mason  CJ, Brennan and McHugh  JJ. Some additional examples are wielding a stick to threaten someone, but not striking or killing a child with the stick (Timbu Kolian v The Queen (1968) 119 CLR 47); and forcing a glass into another person’s face, but not the grievous bodily harm suffered: Kaporonovski v The Queen (1973) 133 CLR 209; [1973] HCA 35. The High Court decision in Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26 is the leading case to judicially interpret the principle of “act”. In that case, Gummow and Hayne JJ stated (at [53]) that the discharging of the loaded shotgun was the act and it comprised a number of separate movements, which included loading the gun, cocking the gun, presenting the gun and firing the gun. This view of the term “act” lies in between the broad view and the narrow view. An accused person may think about some of these steps in discharging a loaded shotgun, and not others. For example, a marksman may fire at a threat as soon as the threat emerges without thinking about it:  Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26 at [53]. Even so, it still amounts to a willed act, rather than an unwilled act, because it is an act that is done repeatedly, and therefore there is no need to consider each step in the composite set of movements.Thus, a person may consciously consider loading, cocking and presenting a gun, but not consciously consider firing it, and in those circumstances, the set of movements are taken as a whole to show that the act of discharging a loaded shotgun was willed.

Independent of will [11.30] 

An accused person will be criminally responsible for an act that was willed: CCQ, s 23(1)(a); CCWA, s 23A(1) and 23A(2). “Independent of will” is not defined in either the CCQ or CCWA. However, the concept of “will” “imports a consciousness in the actor … and a choice to do an act”: R v Falconer (1990) 171 CLR 30; [1990] HCA 49 at 39 (CLR), [8]‌per Mason CJ, Brennan and McHugh JJ. There is a presumption that a person who is conscious has the ability to control their actions and their acts are done with choice: R v Falconer (1990) 171 CLR 30; [1990] HCA 49 at 39 (CLR), [8]‌per Mason CJ, Brennan and McHugh JJ. If a person is unable to control their actions by reason of a disease of the mind –​for example, because of epilepsy –​insanity is the appropriate defence. If a person is unable to control their actions by reason of alcohol or drugs, intoxication is the appropriate defence. Some examples of automatism (acting without control or choice) that can be categorised as acts independent of will are:

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• the diabetic condition of hypoglycaemia (low sugar levels);2 • sleep walking; • a mind affected by a physical blow; • spasms; • reflex actions; • an act done by a person who is suffering from concussion; and • a reflex act done by muscles without any control of the mind:  see R v Falconer (1990) 171 CLR 30; [1990] HCA 49 at 43 (CLR), [12] per Mason  CJ, Brennan and McHugh  JJ, [29] per Toohey  J; Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26 at [53]. In these examples, the focus is on external, rather than internal, factors. Stress, anxiety and depression do not cause a state of automatism because they are likely to recur over time (see R v Falconer (1990) 171 CLR 30; [1990] HCA 49 at 55 (CLR), [27] per Toohey J); therefore, people suffering from these conditions cannot escape criminal responsibility on the ground of act independent of will. In Cooper v McKenna [1960] Qd R 406 at 419, a man argued post-​ traumatic automatism to a dangerous driving charge where he drove a car several hours after a blow to the head during a football game. Stable J suggested (at 419)  that this type of excuse should be closely scrutinised because “[i]‌t is common knowledge that ‘blackout’, to use one of the titles, is one of the first refuges of a guilty conscience, and a popular excuse.” Adding an element of intention to “will” may lead to confusion because “will” relates to the act, whereas intention relates to consequences:  R v Falconer (1990) 171 CLR 30; [1990] HCA 49 at 39 (CLR), [8]‌per Mason CJ, Brennan and McHugh JJ. As was stated in R v Falconer, “[t]he requirement of a willed act imports no intention or desire to effect a result by the doing of the act, but merely a choice, consciously made, to do an act of the kind done”: at 40 [8].

Event [11.40] 

“Event” is a key element in CCQ, s 23(1)(b) and CCWA, s 23B(2). “Event” is not defined in either the CCQ or CCWA, but it is different to an “act”. An “event” has been described as the consequence or result of an 2

Note that hyperglycaemia (high sugar levels) is not an example of automatism, but is rather a disease of the mind, that is, insanity.

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• convulsions;

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act: Kaporonovski v The Queen (1973) 133 CLR 209; [1973] HCA 35 at 216 (CLR), [9]‌per McTiernan ACJ and Menzies J.Thus, on a continuum, an act occurs before an event. Thus, where a person is glassed in the face at a bar and loses their sight, the event is the grievous bodily harm suffered by the victim, rather than the act of forcing a glass into a person’s face. Similarly, where a person is killed by a shotgun or a stick, the event is the death, rather than the loading of the gun, the cocking of the gun and pulling the trigger of the gun; or wielding the stick, respectively. A person is not criminally responsible for an event, if it occurs by accident.

Accident [11.50] 

The excuse of accident is provided in CCQ, s 23(1)(b); CCWA, s 23B. “Accident” is an express element of CCWA, s 23B, but not of CCQ, s 23(1)(b), where it is an event that was not intended or foreseen. “Accident” is not defined in either the CCQ or CCWA. In Queensland in R v McCallum [2013] QCA 254 at [14] per Gotterson JA confirmed that the 2011 amendment to CCQ, s  23(1)(b), which even removed the word “accident” from the provision, did not change the content of the law and reinforced the test espoused by Gibbs J in Kaporonovski v The Queen (1973) 133 CLR 209; [1973] HCA 35 at 231: It must now be regarded as settled that an event occurs by accident within the meaning of the rule if it was a consequence which was not in fact intended nor foreseen by the accused, and would not reasonably have been foreseen by an ordinary person.

In the legal test, there is no “accident” if, subjectively, the accused intended or foresaw the event in question as a possible outcome or that, objectively, the event would reasonably have been foreseen by an ordinary person as a possible outcome:  TB v State of Western Australia [2015] WASCA 212 at [200]. The assessment of ‘objective reasonable foreseeability’, in the context of accident, has to consider “what would be present in the mind of an ordinary person acting in the circumstances with the usual limited time for assessing probabilities: R v Taiters [1997] 1 Qd R 333 at 338 per Macrossan CJ, Pincus JA and Lee J. An accident is a remote possibility: R v Taiters [1997] 1 Qd R 333 at 338; [1996] QCA 232. Therefore, as indicated in Diagram 11.2, an event is not an accident if it is a certainty a substantial likelihood or more probable than not: R v Taiters [1997] 1 Qd R 333 at 338; [1996] QCA 232.

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Diagram 11.2: Accident

The prosecution has the responsibility of proving that the accused intended to cause the event foresaw the event as a possible outcome or that an ordinary person in the accused person’s position would have reasonably foreseen the event: R v Taiters [1997] 1 Qd R 333; [1996] QCA 232.3 If an event is not foreseeable, it is not intended:  Schmidt v Western Australia [2013] WASCA 201 at [78]. If an event is foreseeable, it is not necessarily intended: Schmidt v Western Australia [2013] WASCA 201 at [78]. The accused person’s intention may be inferred if the event is probable and obvious: Schmidt v Western Australia [2013] WASCA 201 at [78]. What must be reasonably foreseeable is death “by some means”, the event of death, and not the mechanism of death, such as falling onto a hard surface and suffering a fatal brain injury: Hooper v The Queen [2000] WASCA 394 at [15], [39]; TB v State of Western Australia [2015] WASCA 212 at [187](h). The age of the accused should be considered when assessing the “objective reasonable foreseeability”, especially with regards to the knowledge of the accused and their capacity to foresee the event. For example, it should not be assumed that a child of 14 years is more able to foresee an issue or topic just because it is “a topic that has been given a lot of attention in our community over the last few years”. The “community attention” is not necessarily the attention of an ordinary 14 year old: TB v State of Western Australia [2015] WASCA 212 at [187](f), [201]. 3

The factors or evidence considered when assessing the “objective reasonable foreseeability”, such as the behaviour and condition of the victim or knowledge of the accused, must be proven beyond reasonable doubt before they can be considered: TB v State of Western Australia [2015] WASCA 212 at [187](e). Note that in R v Taiters [1997] 1 Qd R 333; [1996] QCA 232, the Queensland Court of Appeal expressed the test from Kaporonovski v The Queen (1973) 133 CLR 209 in positive language.

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Eggshell skull rule [11.60] 

The eggshell skull rule means that an accused person takes their victim as they find them, and they are criminally responsible for their conduct even if their victim had a defect, weakness or abnormality:  R v Steindl [2002] 2 Qd R 542; [2001] QCA 434 at [20] per McMurdo P. In this case, the victim was punched on the left cheekbone and eye area and, as a result, an artificial lens in his eye was dislodged. Defects, weaknesses and abnormalities are not confined to constitutional or natural conditions. Examples are found in the following cases: • R v Martyr [1962] Qd R 398, where a person died from a haemorrhage on the base of the brain, caused by a blow on the chin. Such a blow would not usually cause the injury sustained and revealed a weakness in the victim. • Mamote-​ Kulang v The Queen (1964) 111 CLR 62; [1964] HCA 21, where a woman was struck by her husband on the right side of her upper abdomen causing her spleen, which was enlarged and susceptible to rupture, to burst and cause death. • R v Van Den Bemd (1994) 179 CLR 137; [1994] HCA 56, where a man was struck on the left side of his neck, causing death by a subarachnoid haemorrhage, to which the man was either predisposed or which was triggered by the consumption of alcohol. Note that Mamote-​Kulang v The Queen approved the eggshell skull position in R v Martyr, but that the latter case was overruled by the High Court in R v Van Den Bemd, which took reasonable foreseeability into account in determining accident. In Queensland, the statutory form of the eggshell skull rule in CCQ, s  23(1A), which came into force in 1997, overruled the broad position in R v Van Den Bemd, but not to the extent that the position in R v Martyr, which was confined to constitutional or natural defects, weaknesses and abnormalities, was reinstated. In Western Australia, the statutory form of eggshell skull rule appears in CCWA, s  23B(3). An accused person is not excused from criminal responsibility if they deliberately use force on the victim that directly causes the death of or grievous bodily harm to the victim, and would not have occurred if the victim did not have an abnormality, defect or weakness. The decision in R v Steindl [2002] 2 Qd R 542; [2001] QCA 434 recognises the need for this area of criminal law to shift in accordance with advances in medical technology and not to be limited to constitutional or natural defects, weaknesses and abnormalities.

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Modern surgery has made commonplace the insertion of many kinds of prosthesis, the transplantation of organs, and the performance of operations which intentionally leave behind supporting fibres, plates, screws and other items that are designed to assist the patient to get on with his or her life. In the context of medical and surgical intervention, these items or devices are invariably introduced to cure, supplement or relieve a natural abnormality, defect or injury.

In the same case, McMurdo P stated (at [28]): Modern surgical techniques increasingly involve the use of prostheses not only in eye surgery but also in other fields, for example, orthopaedics, hernia repairs and heart surgery. The words “defect, weakness or abnormality” should here be given their current meaning consistent with changing technology.

McMurdo P also noted that “defect, weakness or abnormality” was not restricted to constitutional or natural conditions because if it was, it would exclude those “caused by a previous assault, surgery, motor vehicle accident, sporting or war injury”: at [29]. In R v Steindl [2002] 2 Qd R 542; [2001] QCA 434 at [40] per Davies JA, [59] per Thomas JA, it was stated that examples of abnormalities include: • pacemaker inserted in the heart; • hearing device inserted in an ear; • transplanted heart; • transplanted kidney; • artificial joint; • fragments of shrapnel; • coin lodged in a digestive organ; • scars (natural or surgical); and • the inclusion of alterations for purely cosmetic purposes was left open to question. However, wearing jewellery, ornaments, or piercings –​for example, to an ear, nose or navel –​are not considered to be abnormalities for the purposes of the eggshell skull rule because they are “superficial” and “have no effect on bodily function”: R v Steindl [2002] 2 Qd R 542; [2001] QCA 434 at [40] per Davies JA and at [59] per Thomas JA.

Criminal negligence [11.70] Where

there is criminal negligence, the excuses of act independent of will and accident are not available to an accused person: see

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In R v Steindl [2002] 2 Qd R 542; [2001] QCA 434 at [57], Thomas JA stated:

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the introductory words, “Subject to the express provisions of this Code relating to negligent acts and omissions” in CCQ, s  23(1); and CCWA, ss 23A(1) and 23B(1). Criminal negligence is briefly canvassed below and is explored in more detail in Chapter 4, Fatal Offences. Both the CCQ and CCWA impose duties on people to preserve human life, as outlined in Diagram 11.3. A duty by itself is not an offence but rather must be read in conjunction with an offence. Diagram 11.3: Duties to preserve human life

A duty is an element of the offence in CCQ, s 328 –​that is, “Negligent acts causing harm”. This is a misdemeanour punishable by imprisonment for a maximum of two years. This provision applies where a person does an act or makes an omission, where they have a duty to do so, and they cause bodily harm. The equivalent provision in Western Australia is CCWA, s 304(1), “Act or omission causing bodily harm or danger”, which is a crime punishable by imprisonment for seven years (the summary conviction penalty is imprisonment for three years and a fine of $36,000). This provision applies where a person unlawfully does an act or omits to do an act that they have a duty to do and causes bodily harm or endangers or is likely to endanger the life, health or safety of another person. “Bodily harm” is defined in CCQ; CCWA, s 1 as “any bodily injury which interferes with health or comfort”. Examples of bodily harm include serious disease (CCQ, s 1), a black eye or bloodied nose: Lergesner v Carroll [1991] 1 Qd R 206 at 212 per Shepherdson J. Hurt may constitute a bodily injury, but hurt is not automatically a bodily injury. A sensation of pain without

a bodily injury, such as a painful headlock without injury, is insufficient to amount to bodily harm: Scatchard v The Queen (1987) 27 A Crim R 136 at 137 per Burt CJ, 138 per Kennedy J. However, a continuing pain emanating from an injury, for at least a couple of days, does constitute bodily harm. A week of pain would certainly be ample time. When there is continuing pain, the inference is that it is a symptom of a continuing condition, which easily amounts to an injury: R v Campbell [2009] QDC 61 at [23]-​[24] per McGill DCJ. The duty to provide necessaries of life, pursuant to CCQ, s 285; CCWA, s 262, applies to those who are in charge of others who are unable to provide themselves with necessaries because of their age, sickness, unsoundness of mind (mental impairment), detention or another reason. The charge of another person may come about as a result of a contract, imposed by law or assumed by an act. If a person fails to perform this duty, they are held to have caused the consequences to life or health. In R v Macdonald and Macdonald [1904] St R Qd 151, a father and stepmother were convicted of murdering their 15-​ year-​ old daughter because they failed to provide her with medical aid, food and clothing. The standard of necessaries is not to be determined by reference to “exaggerated opinion of supersensitive or over-​refined persons, but according to the plain common-​sense ideas of ordinary English people”: R v Macdonald and Macdonald [1904] St R Qd 151 at 170 per Cooper CJ. However, reliance on “common-​sense” can be problematic, “common” sense and “common” experience tend to elicit answers which are not common, but diverse: Strong v Woolworths Ltd (2012) 246 CLR 182 at [69] per Heydon J. The duty of a person, the head of the family, who has care of a child under 16, pursuant to CCQ, s  286; CCWA, s  263, extends to providing the necessaries of life as well as taking reasonable precautions and action to avoid danger to the child’s life, health or safety. Once again, if a person fails to perform this duty, they are held to have caused the consequences to the child’s life or health, irrespective of whether the child is helpless. The Western Australian equivalent provision places the duty on the head of the family where the child is a member of their household. There is also a duty on a person who administers surgical or medical treatment or other lawful act to another that is dangerous to human life or health, pursuant to CCQ, s  288; CCWA, s  265. Except in the case of necessity, such a person is expected to have reasonable skill and to use reasonable care. A person who fails this duty, which is commonly applied to employers and persons in charge of workplaces, is held to have caused any consequences to life or health.

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A person must use reasonable care and take reasonable precautions to avoid danger to the life, safety or health of another if they are in charge of a dangerous thing, irrespective of whether the thing is living, inanimate, moving or stationary. A person who omits to perform this duty is held to have caused any consequences to life or health, pursuant to CCQ, s  289; CCWA, s 266. In determining whether a thing is dangerous or not, it is important to objectively consider not only its characteristics, but also how it is used or managed. While a sharpened pencil or knitting needle may be inherently safe objects by design, their use or management impacts on whether they may be dangerous things in some circumstances: R v Dabelstein [1966] Qd R 411 at 430 per Wanstall J. In R v Clark (2007) 171 A Crim R 532; [2007] QCA 168, a tour guide who failed to secure the harness for a flying fox ride was considered to be in charge of a dangerous thing and breached their duty under CCQ, s 289. Other examples of dangerous things include a motor vehicle driven by an incompetent person (R v Thomas [2001] QSC 298) and a gun that killed a business partner: R v Stevens [2004] QCA 99. In Western Australia, a dangerous thing can include bodily fluid, especially from a person infected with human immunodeficiency virus (HIV):  Houghton v The Queen (2004) 28 WAR 399; [2004] WASCA 20. In Queensland, whether bodily fluid is a dangerous thing is unsettled and McPherson JA expressly left this issue open. However, falsely using bodily fluid in the transmission of a serious disease causes the infected victim a detriment, therefore, it constitutes the crime of fraud pursuant to CCQ, s 408C(1): R v Reid (2006) 162 A Crim R 377; [2006] QCA 202 at [20]-​[21]. Where a person undertakes to do an act, the omission of which is dangerous to human life or health, the person has a duty to do that act and is held to have caused any consequences to life or health if they fail to do that act, pursuant to CCQ, s 290; CCWA, s 267. On the same set of facts, more than one duty may apply. For example, in R v BBD [2007] 1 Qd R 478; [2006] QCA 441, a grandmother watched one of her grandsons sensibly drive a small forklift outside her house while another grandson rode on the back of the forklift. The grandmother left the scene to use the bathroom. While she was away, the grandson who was riding on the back of the small forklift decided to move on and off the forklift and was eventually run over by it, and seriously injured. She was convicted under CCQ, s 328 for causing bodily harm by failing two duties –​ that is, CCQ, ss 286 (person in charge of a child under 16) and 289 (person in charge of a dangerous thing).

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To summarise this section, the excuses of act independent of will or accident will not be available to an accused where one of the duties discussed above applies and the accused person has been criminally negligent.

Intention and motive intention of an accused person to cause a particular result is irrelevant to criminal responsibility unless it is an element of the offence: CCQ, s 23(2); CCWA, s 23(1). An accused person intends to cause a result if they foresee the harm as almost certain, rather than merely likely, there must be specific intent. Mere recklessness is insufficient, as it is a lower standard of culpability than intention: Cutter v The Queen (1997) 94 A Crim R 152 (Cutter v The Queen) at 164 per Kirby J. An inference of intent may be supported by such factors as the harm or event being “obvious to any person” or “common knowledge” or “obviously probable”. However, before drawing such an inference, regard must be given to the accused’s state of mind at the time. What at first may appear to be intent may actually just be a combination of other factors such as:  intoxication, anger, aggression, passionate antipathy, highly tense circumstances, emotions of the occasion or a spur of the moment reaction to physical force from another person: Cutter v The Queen at 157-​158 per Brennan CJ and Dawson JJ. The inquiry to establish intent must be addressed to the so-​ called “subjective” state of mind of the accused rather than the “objective” state of intention which the law attributed to the accused upon the basis of the objective facts. The immediate consequences of the act must have been obvious and inevitable in the mind of the person before the court, the accused: Parker v The Queen (1963) 111 CLR 610 at 648-​649 per Windeyer J. It is ordinary for the accused to exercise their right to remain silent and give no direct evidence, or believable evidence, as to their intention at the relevant time. In such a situation, where a trier of fact cannot safely ascertain an accused person’s “subjective” state of mind directly, it may be determined with help from the surrounding “objective” evidence and facts to the alleged offence. Evidence and facts such as the nature of the weapon, depth of the wound, the nature of the strike/​blow, degree of force, calculated, deliberate or aimed with precision, used on a vital area of the body, the credibility of the accused and the nature of any past personal relationship between the accused and the victim: Cutter v The Queen at 162, 165-​167 per Kirby J. One leading test asks if the accused is entitled to the benefit of the doubt. The test asks whether the jury (tribunal of fact), acting reasonably

Chapter 11

[11.80]  The

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and giving consideration to all the circumstances and evidence of the case, could have rejected as a rational inference the possibility of the absence of intent: Knight v The Queen (1992) 175 CLR 495 at 503 per Mason CJ, Dawson and Toohey JJ. Another test holds that to enable a jury to be satisfied of intent beyond reasonable doubt, it is necessary that the existence of intent is the only rational inference that circumstances would enable them to draw: Barca v The Queen (1975) 133 CLR 82 at 104 per Gibbs, Stephen and Mason JJ. “Intention” is different to such emotional terms as “desires”, “wishes” and “hopes”: Cutter v The Queen at 165 per Kirby J. Motive is different to intention. The motive of an accused person is irrelevant to criminal responsibility unless it is an express element of the offence: CCQ, s 23(3); CCWA, s 23(2). Motive is the emotion underpinning the reason for an accused person’s actions. According to Lord  Hailsham in Hyam v DPP [1975] AC 55 at 73, examples of motive are: • jealousy; • fear; • hatred; • desire for money; • perverted lust; • compassion; and • love.

Elements toolbox [11.90] 

The elements of act independent of will in CCQ, s 23(1)(a) and CCWA, ss 23A(1)-​(2) are: 1.

Subject to criminal negligence

2.

Person is not criminally responsible for

3.

Act or omission

4.

Occurs independent of the person’s will.

In Queensland, the elements of accident in CCQ, s 23(1)(b) are: 1.

Subject to criminal negligence

2.

Person is not criminally responsible for

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3.

Event

4.

Person does not intend or foresee as a possible consequence

5.

Ordinary person would not reasonably foresee as a possible consequence.

1.

Subject to criminal negligence

2.

Person is not criminally responsible for

3.

Event

4.

Accident

In Queensland, the elements of the eggshell skull rule in CCQ, s 23(1A) are: 1.

Where there is an accident (see the elements immediately  above)

2.

Person is not excused from criminal responsibility

3.

For death or grievous bodily harm

4.

That results because of a defect, weakness or abnormality in the victim

In Western Australia, the elements of the eggshell skull rule in CCWA, ss 23B(3)-​(4)  are: 1.

Where there is an accident

2.

Death or grievous bodily harm is directly caused by a deliberate use of force by another person

3.

Death or grievous bodily harm would not have occurred but for an abnormality, defect or weakness in the victim

4.

Person is not excused from criminal responsibility for that sole reason

5.

Even if the offender did not intend or foresee the death or grievous bodily harm

6.

Even if the death or grievous bodily harm was not reasonably foreseeable.

With regard to intention and motive: 1.

Intention to cause a particular result is immaterial unless it is an element of the offence:  CCQ, s  23(2); CCWA, s 23(1).

2.

Motive is immaterial to criminal responsibility unless otherwise expressed: CCQ, s 23(3); CCWA, s 23(2).

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In Western Australia, the elements of accident in CCWA, ss 23B(1)-​(2)  are:

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Guide to problem solving [11.100]  Note that the issues below arise in both jurisdictions unless expressly stated otherwise. Act independent of will • Has the accused person committed criminal negligence? If yes, act independent of will is not available as an excuse.

– What duty is applicable?

• Is act independent of will an excuse or a defence? • What act has the accused person done? OR What omission has the accused person made?

– What does “act” mean?

• Was the act done or omission made independent of will?

– What does “independent of will” mean?

• Is intention an element of the offence in question?

– If no, it is irrelevant.

• Is motive an element of the offence in question?

– If no, it is irrelevant.

Accident • Has the accused person committed criminal negligence? If yes, accident is not available as an excuse. • Is accident an excuse or a defence? • What event did the accused cause?

– What does “event” mean?

• Was the event an “accident”? • Is the accused criminally responsible for accident under the eggshell skull rule? Queensland

– Is there an accident?



– Did the victim die or suffer grievous bodily harm?

– Did this result occur because of a defect, weakness or abnormality in the victim?

– The accused person is criminally responsible even if they: • do not intend the death or grievous bodily harm; • do not foresee the death or grievous bodily harm; or • cannot reasonably foresee the death or grievous bodily  harm.

Western Australia

– Is there an accident?



– Did the accused cause death or grievous bodily harm to the victim by deliberately using force?

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– Did this result occur because of an abnormality, defect or weakness in the victim? This sole reason does not excuse the accused person from criminal responsibility.

– The accused person is still criminally responsible even if they: • did not intend the death or grievous bodily harm; • the death or grievous bodily harm was not reasonably foreseeable.

• Is intention an element of the offence in question?

– If no, it is irrelevant.

• Is motive an element of the offence in question?

– If no, it is irrelevant.

Revision questions 1.

What does “act” mean for the purpose of act independent of will?

2.

Is a person who is unable to control their actions as a result of epilepsy able to raise act independent of will?

3.

What is an “event” for the purpose of the excuse of accident?

4.

At what point does an event become an accident on a continuum from certainty, substantial likelihood, more probable than not, not certain, a remote possibility?

5.

What is the eggshell skull rule?

6.

How is criminal negligence connected to act independent of will and accident?

7.

What are the duties for preserving human life?

8.

Is intention the same as motive?

Problem question April and May were in their kitchen preparing a pizza when they had an argument about who should win a reality television show. The fight escalated when April hit May in the head with a rolling pin, forcing May to the floor. April lunged towards May again swinging the rolling pin and May automatically held up her right hand, which was holding a knife. The medical evidence showed that the knife entered April’s body cutting a rib and reaching April’s lungs, killing her. Three weeks before this incident, some of April’s ribs were broken in a car accident. April also had a decreased lung capacity as a result of chain smoking.

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• did not foresee the death or grievous bodily harm; or

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May says she had been using the knife to cut up capsicum for the pizza and had not used it as a weapon but rather to push April off her. May has been charged with the unlawful killing pursuant to CCQ, s 302(1)(a); CCWA, s 279(1)(a). Advise May whether she could raise act independent of will or accident.

Answers to revision questions 1.

The High Court decision in Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26 is the leading case to judicially interpret the principle of “act”. The act comprises a number of separate movements. In that case, the act included loading the gun, cocking the gun, presenting the gun and firing the gun: at [53].

2.

Where a person is unable to control their actions due to epilepsy, they should argue insanity rather than act independent of will because epilepsy is an internal, rather than an external, factor.

3.

The term “event” is not defined in either the CCQ or CCWA but is different to an “act”. An “event” has been described as the consequences or results of an act: Kaporonovski v The Queen (1973) 133 CLR 209 at 215 per McTiernan ACJ and Menzies J.

4.

An event is an accident if it is a remote possibility. An event is not an accident if it is a certainty, a substantial likelihood or more probable than not: R v Taiters [1997] 1 Qd R 333 at 338 per Macrossan CJ, Pincus JA & Lee J.

5.

The eggshell skull rule means that an accused person takes their victim as they find them, and they are criminally responsible for their conduct even if their victim had a defect, weakness or abnormality: R v Steindl [2002] 2 Qd R 542; [2001] QCA 434 at [20] per McMurdo P.

6.

If an accused person is criminally negligent, accident and act independent of will are not available to them because one of the elements of these excuses is subject to criminal negligence.

7.

The duties for preserving human life include the:

• duty to provide necessaries of life: CCQ, s 285; CCWA, s 262; • duty of a person who has care of a child: CCQ, s 286; • duty of a head of family: CCWA, s 263; • duty of persons  CCWA, s 265;

doing

dangerous

acts: CCQ,

s 288;

• duty of persons in charge of dangerous things: CCQ, s 289; CCWA, s 266; and • duty to do certain acts: CCQ, s 290; CCWA, s 267. 8.

No, intention is different to motive. An accused person intends to cause a result if they foresee the harm as almost certain rather than merely likely: Cutter v The Queen (1997) 94 A Crim R 152; [1997] HCA 7. In contrast, motive is the emotion underpinning

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the reason for an accused person’s actions: Cutter v The Queen (1997) 94 A Crim R 152; [1997] HCA 7.

In order to answer the problem question, the following issues need to be considered. Has May committed criminal negligence? In May’s situation, the relevant duty of preserving human life is the duty of persons in charge of dangerous things: CCQ, s 289; CCWA, s 266. Has May breached the duty of being in charge of a dangerous thing (knife)? Dangerous things include living, inanimate, moving and stationary things. The purpose of a knife may not be as inherently safe as a sharpened pencil or knitting needle: R v Dabelstein [1966] Qd R 411 at 430 per Wanstall J. May has used the knife as a means of pushing April off her, and therefore in these circumstances it is arguably a dangerous thing. If a court concludes that May has not used reasonable care or taken reasonable precautions with the knife, she will have omitted to perform her duty of preserving human life. Therefore, she will be held to have caused the consequences to April –​that is, the unlawful killing. May is not able to raise act independent of will or accident if criminal negligence is successful. Is act independent of will an excuse or a defence? Act independent of will is an excuse. May bears the legal and introductory evidentiary burden of raising some evidence of act independent of will and accident, and the prosecution must negative the excuses beyond a reasonable doubt. Note that May simply needs to raise evidence of the excuses and does not need to prove them on the balance of probabilities, nor beyond reasonable doubt: Strong v Woolworths Ltd (2012) 246 CLR 182 at [50]-​[51] per Heydon J; Woolmington v DPP [1935] AC 462. What “act” has May done? The term “act” is not defined in either the CCQ or CCWA. It is not confined to the immediate physical movement, nor does it extend to the consequences: Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26 at [50]; R v Taiters [1997] 1 Qd R 333; [1996] QCA 232. It comprises a number of separate movements: Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26 at [53]. May’s movements consisted of holding a knife in her right hand and holding up her right hand to push April away. Was May’s act done “independent of will”? “Independent of will” is not defined in either the CCQ or CCWA. The concept of “will” “imports a consciousness in the actor … and a choice

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Answer to problem question

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to do an act …”: R v Falconer (1990) 171 CLR 30; [1990] HCA 49 at 39 (CLR), [8]‌per Mason CJ, Brennan and McHugh JJ. There is a presumption that if May is conscious, then she has the ability to control her actions, therefore, her acts are done with choice:  R v Falconer (1990) 171 CLR 30; [1990] HCA 49 at 39 (CLR), [8]‌per Mason CJ, Brennan and McHugh JJ. May’s act of holding up her right hand, which was holding a knife, may have been an action done independent of will if her mind had been affected or if she had suffered concussion from the earlier physical blow when April had hit her with a rolling pin. Further, May may be able to argue that holding up her right hand to push April away was a reflex action: R v Falconer (1990) 171 CLR 30; [1990] HCA 49 at 43 (CLR), [12] per Mason CJ, Brennan and McHugh JJ, at [29] per Toohey J. The arguments focus on external, rather than internal, factors. It could perhaps be argued that, rather than May voluntarily inserting the knife in April’s body, April had impaled herself on May’s knife: Ugle v The Queen (2002) 211 CLR 171; [2002] HCA 25 at [30]. Is intention an element of CCQ, s 302(1)(a); CCWA, s 279(1)(a)? Intention is relevant here because an intention to cause a particular result is an element of both of these offences. Section 302(1)(a) of the CCQ requires May to have the intention of killing or of causing grievous bodily harm, and CCWA, s 279(1)(a) requires May to have the intention of causing death. Note that if May was charged under CCQ, s 302(1)(aa), the standard of culpability is “reckless indifference”, which is a lower standard than intention: Cutter v The Queen (1997) 94 A Crim R 152 at 164 per Kirby J. It is tenuous to suggest that May intended to cause April’s death. May is unlikely to have foreseen the harm (April’s death) as almost certain, rather than merely likely, there must be specific intent: Cutter v The Queen (1997) 94 A Crim R 152 at 164 per Kirby J; [1997] HCA 7. Is motive an element of CCQ, s 302(1)(a); CCWA, s 279(1)(a)? Motive is not an express element of these offences and is thus irrelevant to May’s criminal responsibility. Is accident an excuse or a defence? Accident is an excuse. May’s onus of proof for accident is the same as act independent of will, which was discussed above. We assume that criminal negligence is unsuccessful and that May will raise accident. What event did May cause? The term “event” is not defined in either the CCQ or CCWA, but is different to an “act”. An “event” has been described as the consequences or results of an act: Kaporonovski v The Queen (1973) 133 CLR 209; [1973] HCA 35 at 216 (CLR), [9]‌per Gibbs J.

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The medical evidence showed that the knife entered April’s body cutting a rib and reaching April’s lungs, killing her. The event is the consequence –​that is, April’s death. Was April’s death an “accident”?

May and April were making pizza together. May could argue that she was carrying the knife in her right hand to cut up capsicum for the pizza and not for the purpose of killing April. During an argument about a reality television show, April lunged towards May with a rolling pin and May raised her right hand to push April away. May did not use the knife as a weapon. Similar questions to those raised in Ugle v The Queen (2002) 211 CLR 171; [2002] HCA 25 at [30] could be relevant here –​ that is, did May put the knife in the body of April, or did April impale herself on the knife that May was holding? The prosecution has the responsibility of proving that May intended to kill April, that May foresaw April’s killing as a possible outcome or that an ordinary person in May’s position would have reasonably foreseen April’s killing: R v Taiters [1997] 1 Qd R 333; [1996] QCA 232. This will be difficult for the prosecution to prove beyond reasonable doubt because April’s death was unlikely and unforeseen. April’s death was the product of April lunging onto the knife held by May while May was on the floor after having been hit by April with a rolling pin. Is May criminally responsible for an accident under the eggshell skull rule? The eggshell skull rule means that May takes April as she finds her, and that May is criminally responsible for her conduct even if April had a defect, weakness or abnormality: R v Steindl [2002] 2 Qd R 542; [2001] QCA 434 at [20] per McMurdo P. We will assume that April’s death is an accident. April is the victim and she died. In Western Australia, we will assume that May deliberately used force. Did April’s death occur because of an abnormality, defect or weakness? The knife cut one of April’s ribs and reached her lungs. Some of April’s ribs were broken in a car accident three weeks before her death, and her lungs had a decreased capacity as a result of chain smoking. In R v Steindl [2002] 2 Qd R 542; [2001] QCA 434, McMurdo P noted that “defect, weakness or abnormality” were not restricted to constitutional or natural conditions because, if they were, they would exclude those “caused by a previous assault, surgery, motor vehicle accident, sporting or war injury”: at [29] per McMurdo P. Consequently, April’s broken ribs from the car accident and her decreased lung capacity fall within the realm of defect, weakness or abnormality.

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An event is not an accident if it is a certainty, a substantial likelihood or more probable than not: R v Taiters [1997] 1 Qd R 333 at 338; [1996] QCA 232. An accident is a remote possibility: R v Taiters.

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May is not excused from criminal responsibility for April’s killing even if she did not intend or foresee April’s death. May’s intention and foresight are determined subjectively. May is not excused from criminal responsibility for April’s killing even if she could not reasonably have foreseen April’s death. The notion of “reasonable” imports objectivity. Is intention or motive an element of CCQ (Qld), s 302(1)(a); CCWA, s 279(1)(a)? See the discussion above (under act independent of will), which determines whether May’s intention or motive is relevant.

Critical thinking questions 1.

Why are act independent of will and accident excuses rather than defences?

2.

Can you think of some examples of omissions independent of will? Where possible, support your answers with case law.

3.

What are the strengths and weaknesses of the external factor test for act independent of will?

4.

What are the weaknesses of a narrow or broad interpretation of “act”?

5.

Is there a connection between the concepts of “accident” and “probable consequences”? See Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34 for a discussion of the latter term.

6.

Should the eggshell skull rule apply to cosmetic surgery?

7.

Are “intention” and “criminal negligence” mutually exclusive notions?

8.

Why is accident not available as an excuse to an accused person who has been criminally negligent?

9.

Why is an act independent of will not available as an excuse to an accused person who has been criminally negligent?

10.

Should negligence be controlled solely by tort law? Why should the criminal law intervene to prohibit negligence in some instances?

Readings • T Crofts, K Burton, R Martin, T Nisbet and S Tarrant, Criminal Codes: Commentary and Materials (7th ed, Thomson Reuters/​ Lawbook Co., 2018) Ch 9. • T Crofts, LexisNexis Study Guide: Criminal Law in Queensland and Western Australia (2nd ed, LexisNexis, Sydney, 2014) Ch 6. • K Burton, LexisNexis Questions and Answers: Criminal Law in Queensland and Western Australia (2nd ed, LexisNexis, Sydney, 2015) Ch 11.

CHAPTER 12 Insanity, Intoxication and Immaturity Learning outcomes .........................................................................   419 [12.10] Principles............................................................................   420 [12.30] The insanity defence...................................................................  421 [12.100] Automatism and insanity...........................................................  428 [12.110] Intoxication............................................................................  429 [12.160] Immaturity.............................................................................  434 [12.170] Elements toolbox..............................................................   436 [12.180] Guide to problem solving..................................................   437 Revision questions .........................................................................   438 Problem question ...........................................................................   438 Answers to revision questions .......................................................   439 Answer to problem question .........................................................   440 Critical thinking questions .............................................................   441 Readings .........................................................................................   441

Learning outcomes This chapter will enable you to: • Identify and explain the elements of the defence of insanity • Explain the meaning of “mental disease or natural mental infirmity” (Qld) or “mental impairment” (WA) • Apply the elements of insanity • Establish whether a person may be found not guilty by reason of unsoundness of mind • Identify, explain and apply the elements of intoxication • Establish what effect intoxication may have on a person’s criminal liability • Identify the Code provision determining when a child may be held criminally responsible

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[12.20] Insanity...................................................................................  420

420      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

• Identify and evaluate what sort of evidence may be used to show that a child was criminally responsible

PRINCIPLES [12.10] 

Once it has been established that a person satisfies the elements required for an offence (as described in the offence provision), he or she will be liable for conviction unless some defence or excuse applies. This chapter explores the effect that a lack of mental capacity may have on whether or not a person is found criminally responsible for an offence. The lack of mental capacity may arise because of mental disease or natural mental infirmity (Qld) or a mental impairment (WA), or intoxication or immaturity.

Insanity [12.20] 

If a person is fit to stand trial, the defence of insanity will become relevant where it is claimed that the person was insane at the time of committing the offence. The insanity defence in s 27 of both Codes can be raised by either the defence or the prosecution. It is well established that even if the defence does not raise the issue of insanity, if there is sufficient evidence to justify a verdict of not guilty on the basis of insanity, the trial judge must leave the issue to the jury, see R v Holmes [1960] WAR 122. As every person is presumed to be sane until the contrary is proven (s 26), the person raising the defence must also prove the defence, which is why insanity is referred to as a “true defence”. With other defences (which are often called “excuses”), such as self-​defence, the accused need only satisfy the evidentiary burden by bringing evidence that he or she was acting in self-​defence. The prosecution then has the persuasive burden of proving beyond reasonable doubt that the accused did not act in self-​defence. With regard to insanity, if the accused raises the defence then he or she must also prove the defence on the balance of probabilities  –​that is, that it is more likely than not that he or she was insane at the time of committing the offence. There is some debate about whether this standard applies when the prosecution raises the defence or whether the prosecution must prove the defence beyond reasonable doubt. The view of the Law Reform Commission of Western Australia is that, regardless of which party raises the defence, they should prove the defence on the balance of probabilities.1 If a person is successful in raising the defence of insanity and of proving it on the balance of probabilities, they do not receive an outright acquittal 1

Law Reform Commission of Western Australia, Review of the Law of Homicide, Final Report (Project No 97, 2007) pp 233-​234.

and are not automatically released from custody. Instead, in such cases, the person receives a special verdict of “not guilty on account of unsoundness of mind” (CCQ, s 647; Criminal Procedure Act 2004 (WA), s 146), and they may be detained under mental health legislation, depending on the seriousness of the offence, the need to protect the community and the need for treatment. The defence of insanity will only be relevant where a person has been brought to trial and claims they were insane at the time of committing the offence. In many cases, however, the defence will be unnecessary –​for instance, where a person has a mental impairment such that they are unable to understand and participate in the proceedings, in which case they will not be brought to trial, or, if this only becomes apparent at trial, proceedings will be terminated: CCQ, ss 613 and 645; Criminal Law (Mentally Impaired Accused) Act 1996 (WA), ss 9 and 11. It is also possible in Queensland for a person to be referred to the Mental Health Court for determination as to whether they are fit to stand trial: Mental Health Act 2000 (Qld), s 257.

The insanity defence [12.30] 

According to s  27 of both Codes, a person is not criminally responsible for an act or omission if at the time of doing the act or of making the omission he or she was in such a state of mental disease or natural mental infirmity (Qld), or was so mentally impaired (WA), that he or she was deprived of one of three capacities: the capacity to understand what he or she was doing; the capacity to control her or his actions; or the capacity to know that he or she ought not to do the act or make the omission: s 27(1). Diagram 12.1 shows the elements of the insanity defence. Diagram 12.1: Elements of the insanity defence

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Traditionally, both Codes defined “insanity” in the same terms and gave no further definition of the meaning of a state of “mental disease or natural mental infirmity”. However, in 1997, the CCWA was amended and the term “mental disease or natural mental infirmity” was replaced with the term “mental impairment”, which was given further definition in s 1. According to s 27(2), where a person has a delusion on a specific matter, they are criminally responsible to the same extent as they would be if the delusion were in fact a reality. Therefore, this subsection of s  27 allows a defence where a person suffers from delusions on a specific matter but cannot access the defence of insanity in s 27(1). Queensland: Mental disease or natural mental infirmity [12.40] 

There is no definition of “mental disease or natural mental infirmity” in the CCQ and therefore its meaning must be found in case law. In R v Porter (1933) 55 CLR 182, Porter’s wife left him, after which he became very emotional and showed signs of a breakdown. Subsequently, he administered poison to his child and attempted to poison himself. On the issue of whether he was suffering from a disease of the mind, Dixon J told the jury (at 188-​189): The next thing which I wish to emphasize is that his state of mind must have been one of disease, disorder or disturbance. Mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-​control, and impulsiveness, are quite different things from what I have attempted to describe as a state of disease or disorder or mental disturbance arising from some infirmity, temporary or of long standing … That does not mean … that there must be some physical deterioration of the cells of the brain, some actual change in the material, physical constitution of the mind, as disease ordinarily means when you are dealing with other organs of the body where you can see and feel and appreciate structural changes in fibre, tissue and the like. You are dealing with a very different thing –​with the understanding. It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder.

It is clear that the term “disease of the mind or natural mental infirmity” does not necessarily require that there is a disease of the brain but can encompass a physical condition in the body that affects mental functioning. In R v Kemp [1957] 1 QB 399, Kemp suffered from arteriosclerosis (hardening of the arteries), which led to a congestion of blood in the brain that caused him not only to suffer a temporary lapse of consciousness but also to make him act irrationally and irresponsibly. During his lapse of consciousness he struck his wife with a hammer in a motiveless and irrational act that caused

CHAPTER  12  INSANITY, INTOXICATION AND IMMATURITY      423

The law is not concerned with the brain but with the mind, in the sense that “mind” is ordinarily used, the mental faculties of reason, memory and understanding. If one read for “disease of the mind” “disease of the brain”, it would follow that in many cases pleas of insanity would not be established because it could not be proved that the brain had been affected in any way, either by degeneration of the cells or in any other way. In my judgment the condition of the brain is irrelevant and so is the question of whether the condition of the mind is curable or incurable, transitory or permanent. There is no warranty for introducing those considerations into the definition in the McNaghten Rules.Temporary insanity is sufficient to satisfy them. It does not matter whether it is incurable and permanent or not. … In my judgment, the words “from disease of the mind” are not to be construed as if they were put in for the purpose of distinguishing between diseases which have a mental origin and diseases which have a physical origin, a distinction which in 1843 was probably little considered. They were put in for the purpose of limiting the effect of the words “defect of reason”. A defect of reason is by itself enough to make the act irrational and therefore normally to exclude responsibility in law. But the Rule was not intended to apply to defects of reason caused simply by brutish stupidity without rational power. It was not intended that the defence should plead: “Although with a healthy mind he nevertheless had been brought up in such a way that he had never learned to exercise his reason, and therefore he is suffering from a defect of reason”. The words ensure that unless the defect is due to a diseased mind and not simply to an untrained one there is insanity within the meaning of the Rule.

Where the mental functioning is caused by something external to the body it will not be held to be a disease of the mind –​for instance, where there is a physical blow to the head which causes concussion (see Cooper v McKenna [1960] Qd R 406), or where a person’s consciousness is impaired due to the taking of medication: see R v Quick; R v Paddison [1973] QB 910. In the latter case, Quick, who was a diabetic, had been drinking alcohol and had taken insulin without eating very much. This caused hypoglycaemia (too much insulin in the blood), which leads to unconsciousness or semi-​ unconsciousness. Quick attacked a patient at the hospital where he was working at the time, and later claimed that he could not remember the attack. It was said (at 922-​923) that: In our judgment the fundamental concept is of a malfunctioning of the mind caused by disease. A malfunctioning of the mind of transitory effect caused by the application to the body of some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease. Such malfunctioning, unlike that caused by a defect of reason from disease of the mind, will not always relieve an accused from criminal responsibility. … In this case Quick’s alleged mental condition, if it ever existed, was not caused by his diabetes but by his use of the insulin prescribed by his doctor. Such

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grievous bodily harm.The issue was whether he was suffering from a disease of the mind. Devlin J stated (at 407-​408):

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malfunctioning of his mind as there was, was caused by an external factor and not by a bodily disorder in the nature of a disease which disturbed the working of his mind.

However, note that such malfunctioning may form the basis of the defence of automatism. This contrasts to a case of hyperglycaemia (high blood sugar), which is caused by an inherent defect. If the hyperglycaemia is not corrected by insulin and does cause a malfunction of the mind, it may be a disease of the mind (see R v Hennessy [1989] 2 All ER 9). Mental diseases include schizophrenia (Batty v Attorney General (Northern Ireland) [1963] AC 386 at 412), reactive depression (R v Milloy [1993] 1 QD R 298). The expression “mental disease” can also include epileptic automatism see R v Foy [1960] Qd R 225; R v Mursic [1980] Qd R 482; R v Batt [2005] QCA 444. A “natural mental infirmity” does not necessarily require there to be a disease of the mind but would appear to be wide enough to encompass instances of intellectual impairment or other developmental disability of the mind. Western Australia: Mental impairment [12.50] 

In 1997, the CCWA was amended to replace the term “mental disease or natural mental infirmity” with “mental impairment” and to incorporate a definition of this concept, which has clearly been condensed from the cases in this area. The insanity defence is therefore available where a person is found to have had a mental impairment, which is defined in s  1 as an “intellectual disability, mental illness, brain damage or senility”. Mental illness is also defined in s 1 as “an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli”. In R v Hodges (1986) 19 A Crim R 129, the trial judge had directed the jury “that an anti-​social personality disorder, if you find he has one, does not amount to a disease of mind, nor, at law, does it amount to a natural mental infirmity” (as were the words used in the CCWA at the time). The appellant argued that, for the purposes of CCWA, s 27, “an anti-​social personality disorder” could amount to a natural mental infirmity or to a disease of the mind.The appeal was dismissed and the trial judge’s direction was affirmed. Compare this with Western Australia v Brown [No 3] [2013] WASC 349 where it was stated that anti-​social personality disorder could be considered to be a mental illness if it resulted in changes to the brain (at [504]-​[505]).

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However, even if the anti-​social personality disorder did amount to mental impairment, “under the Criminal Code, s 27, a mere finding that ASPD is a ‘mental illness’ does not mean that a person with ASPD is not held accountable under the criminal law for their behaviour. In order for that conclusion to be reached, there would have to be a further finding that the ASPD deprived them of one of the capacities referred to in s  27” (at [503]). In the same case, it was also held that decompensated, longstanding posttraumatic stress disorder is a “mental illness” for the purpose of CCWA, s 1. Capacities The mental disease or natural mental infirmity (CCQ) or the mental impairment (CCWA) must be of such a quality that it deprives the person of one of the following three capacities: • to understand what he or she was doing; or • to control her or his actions; or • to know that he or she ought not to do the act or make the omission. The insanity defence is not available where the lack of the capacity does not stem from a mental disease or natural mental infirmity (CCQ) or mental impairment (CCWA). Furthermore, note that the accused must be deprived of these capacities. It is not enough that a capacity is merely impaired, see, for example, Western Australia v Brown [No 3] [2013] WASC 349 at [506] per Jenkins J; The State of Western Australia v Siddique [No 2] [2016] WASC 358. Capacity to understand what he or she was doing

R v Porter (1933) 55 CLR 182, it was explained that the capacity to understand what the person is doing refers to the physical nature of what he or she was doing. For instance, “In a case where a man intentionally destroys life he may have so little capacity for understanding the nature of life and the destruction of life, that to him it is no more than breaking a twig or destroying an inanimate object” (at 188). [12.70] In

Capacity to control her or his actions [12.80] 

This limb of the defence of insanity can apply where a person is unable to control their actions due to a disease of the mind. In his “Explanatory Letter” on the Draft Code for Queensland, Sir Samuel Griffith made it clear that he considered that a person should not be held criminally responsible if he or she is so mentally impaired that he or she cannot exercise free choice:

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[12.60] 

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An act to involve criminal responsibility must be voluntary … that is to say, accompanied by volition. In order that an action may be accompanied by volition there must be in the first place perception, more or less accurate, of the facts, then a determination or choice of the action to be taken upon those facts, and finally the action. If the person in question is incapable from mental disorder of rightly perceiving the facts, he should be treated on the same footing as a man who in good faith misapprehends the facts (s 26 [which became s 24]). If he is for the same cause incapable of exercising the power of determination or choice, he should be treated on the same footing as a man who does an act independently of the exercise of his will (s 25 [which became s 23]).2

The view that this limb of s 27 is equated with lacking the capacity to control actions due to involuntariness according to s 23 was confirmed in The State of Western Australia v Marotta  [2018] WASC 329. This would cover cases of irresistible impulse (R v Moore (1908) 10 WALR 64) but not impulsiveness that does not stem from a disease of the mind: R v Hodges (1986) 19 A Crim R 129. This was explained in Western Australia v Brown [No 3] [2013] WASC 349 at [44]: The question as to whether the accused had capacity to control his actions requires the accused to prove, on the balance of probabilities, that he was unable to control the conduct comprising his act or acts which caused the death of the relevant victim. It is not sufficient for the accused to establish an inability to control his emotions which led him to form the decision to perform those acts. Rather, the accused is required to establish an inability to control his acts which caused death and he may do this if he can establish a lack of capacity to refrain from a willed action. Such an inability would exist if the accused “had an uncontrollable impulse to carry out the actions which caused the fatal injuries” or if, although the relevant actions were willed, “the mind of the accused was not able to control them”: R v Cox [2006] SASC 188; R v Telford [2004] SASC 248; (2004); 89 SASR 352, 364 [113]-​[121].

Capacity to know not to do the act or make the omission [12.90] 

The final limb of the defence relates to a person’s ability to understand the wrongfulness of what they do or fail to do.This was explained in R v Porter (1933) 55 CLR 182 at 189-​190: The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could

2

Queensland Parliamentary Papers, CA 89-​1897, p 14.

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not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by “wrong”? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.

When applying this limb of the defence it should be considered that (R v Porter (1933) 55 CLR 182 at 189):

The issue of what the accused must understand was raised in Evans v The State of Western Australia [2010] WASCA 34. The jury asked a question which demonstrated their understanding that “… the capacity to know you ought not to do the relevant act is established if the person knows the act is unlawful and that is so even if the person believes the law is morally wrong” (at [26]). This was found to be a misunderstanding. A person may lack the relevant capacity even if they know that the act is unlawful. As the trial judge failed to correct this misunderstanding the appeal was allowed on this point, the conviction was quashed, and a retrial was ordered. On appeal, Wheeler JA stated at [55]-​[56] that: … The question suggested that the jury had understood her Honour as directing that the relevant capacity was a capacity to know that the act was unlawful, and was seeking confirmation of the correctness of this view. The correct answer to this question was, “No”. It would have been necessary at the least to make it unequivocally clear to the jury that they were not concerned with the appellant’s understanding of whether the act was unlawful, but only with his ability to understand that it was wrong according to ordinary standards of morality

McLure  P stated also affirmed at [30]-​[31] that the capacity to reason rationally as to what is right and wrong is determined according to ordinary standards and confirmed that the common law aligns with the CCQ: The High Court in Stapleton elsewhere (367) identified the test as being whether at the time of the commission of the act the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act. There is no suggestion of any material distinction between the common law and s 27 on this point. Thus the real issue for the jury in this case was whether the appellant had established on the balance of probabilities that at the time of the killing his mental impairment resulted in a complete incapacity to reason as to what is right or wrong according to ordinary standards. The term “know” means “understand”, “appreciate” or “comprehend”. An incapacity to reason rationally as to what is right or wrong according to ordinary standards prevents a person from understanding that he (or she) ought not do the act. Knowledge (short of understanding) that to kill is punishable by law does not prevent such a finding.

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We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time.

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Nor is a finding of incapacity dependent upon proof of a positive belief in the rightness of the conduct. Whether an act is right or wrong is determined by reference to an objective standard. The question is whether the appellant had a complete incapacity to reason as to what was, by that objective standard, right or wrong. In this case the appellant’s subjective belief was relied upon by the experts to support the conclusion that he was in a psychotic state that prevented rational reasoning on right or wrong.

Automatism and insanity [12.100] 

A state of automatism occurs when a person is not conscious of their actions. The cause of the automatism must be determined because this will affect whether the defence of insanity in s  27 or the excuse of lack of will in CCQ, s 23; CCWA, s 23A is applicable. If the cause of the automatism is a mental disease or a natural mental infirmity or impairment of the mind, it is called “insane automatism” and the defence of insanity in s 27 applies.Where the cause is an external factor, it is called “non-​insane” or “sane automatism” and the excuse in CCQ, s 23; CCWA, s 23A is applicable, unless the external cause is alcohol, in which case, the relevant excuse is intoxication under s  28. A  clear example of an external cause is where a person is hit on the head and suffers concussion. In Cooper v McKenna [1960] Qd R 406, McKenna drove a car dangerously. When apprehended, he claimed that after suffering a severe blow to his head during a game of football everything went hazy and he had no recollection of dangerous driving. There was medical evidence that was consistent with a concussion. It was found that this case was appropriately dealt with as a case of lack of will under CCQ, s 23; CCWA, s 23A. Cases where an extreme emotional shock causes a dissociative state are more complex. Here it can be difficult to determine whether such cases should be dealt with as sane or non-​insane automatism. In R v Falconer (1990) 171 CLR 30 (Falconer), Falconer had found out that her husband had abused their daughters and, just before she shot him, he suggested that he had also abused a young girl in Falconer’s care. Falconer claimed she recalled nothing of the killing.The issue here was whether a dissociative state caused by a severe emotional shock could be regarded to be a case of non-​insane automatism. It was stated in this case (at 55-​56) that: The problem of classification in a case of a transient malfunction of the mind precipitated by psychological trauma lies in the difficulty in choosing between the reciprocal factors –​the trauma and the natural susceptibility of the mind to affection by psychological trauma –​as the cause of the malfunction. Is one factor or the other the cause or are both to be treated as causes? To answer this problem, the law must postulate a standard of mental strength which, in the face of a given

level of psychological trauma, is capable of protecting the mind from malfunction to the extent prescribed in the respective definitions of insanity. That standard must be the standard of the ordinary person: if the mind’s strength is below that standard, the mind is infirm; if it is of or above that standard, the mind is sound or sane. In a given case, if the psychological trauma causes a sound mind, possessed of the requisite standard of strength, to malfunction only transiently so as to produce the effects mentioned in the M’Naghten Rules or in s 27 of the Code, the malfunction cannot be attributed to mental infirmity but to “the nature of man”: that is to say, a malfunction which is transient and not prone to recur and to which the mind of an ordinary person would be subject if exposed to the same psychological trauma is neither a mental disease nor a natural mental infirmity. It is neither an instance of unsoundness of mind under the Code nor an instance of insanity at common law. Having regard to the reason for distinguishing between sane and insane mental irresponsibility in Hill v Baxter, there is no reason to require such a malfunction of the mind to attract a qualified verdict of acquittal. If this be the substantive law, how does the shifting onus of proof work upon it? When an accused raises automatism and assigns some malfunction of the mind as its cause, he raises a defence of unsoundness of mind or insanity unless the malfunction of his mind was (1) transient (2) caused by trauma, whether physical or psychological, which the mind of an ordinary person would be likely not to have withstood and (3) not prone to recur. A malfunction of the mind other than a malfunction which satisfies those exempting qualifications amounts to a disease of the mind, or a mental disease or natural mental infirmity.

The position in Falconer is made clear in CCWA, s 1, which states that the term “mental illness” “does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli”. Falconer was applied in Donovan v The State of Western Australia [2017] WASCA 170 to determine that an epileptic seizure amounted to a mental disease or infirmity, which even though transient was not caused by trauma and was prone to recur.

Intoxication [12.110] 

The ingestion of alcohol or other intoxicating substances can affect a person’s mental capacity; however, whether this will afford a person a defence depends on whether the intoxication was intentional or not. If the intoxication was unintentional, a person may be afforded a defence provided that they are so intoxicated that they are deprived of one of the capacities listed in s 27(1): see CCQ; CCWA, s 28(1). If the person is intentionally intoxicated, this does not afford them a defence. However, complete or partial intoxication may be taken into account to determine whether the person could form any specific intention if this is required for the offence under consideration:  CCQ; CCWA, s  28(3). Where a person claims that they have made a mistake under CCQ; CCWA, s 24, the fact that they were

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intoxicated will not be taken into account to determine whether that belief was reasonable: for further discussion of mistake of fact, see Chapter 13. Unintentional intoxication [12.120] 

According to CCQ; CCWA, s  28(1), the provisions of s  27 apply in a case where a person is unintentionally intoxicated. In R v Corbett [1903] St R Qd 246 at 249, it was said that unintended intoxication includes intoxication “for which [a person] could not be fairly held responsible”.This is contrasted with “intentional” intoxication which has been understood to refer to whether the person voluntarily consumed the intoxicant, rather than whether the person intended to become intoxicated. In R v Kusu (1980) 4 A Crim R 72 at 77, it was stated that “self-​induced –​intentional or voluntary  –​intoxication” is not an excuse under CCQ; CCWA, s  28. Therefore, the defence of unintentional intoxication covers cases where, for instance, the person did not know and could not fairly be expected to know that they had consumed something containing an intoxicant. For the defence in s 28(1) to apply, the degree of intoxication must be such that it deprives the person of one of the capacities listed in s 27(1) –​that is, the capacity to understand what they are doing, to control themselves or to understand the wrongfulness of their behaviour. If the degree of intoxication is not of such an extent, then the defence in s 28(1) does not apply. However, the fact that the person was intoxicated may still be relevant to determine whether the person could form any specific intention: CCQ; CCWA, s 28(3). As with insanity, the evidentiary and the persuasive (sometimes called “legal”) burden is on the accused to prove on the balance of probabilities that they were so intoxicated that they were deprived of one of the capacities. Intoxication and intention [12.130] 

Where a person intentionally becomes intoxicated, in accordance with CCQ; CCWA, s  28(2) the defence in CCQ; CCWA, s  28(1) is not available. Additionally, the CCQ makes it clear that s  28(1) is not available “whether his or her mind is disordered by the intoxication alone or in combination with some other agent”. This means that a person will have no defence where they voluntarily consume an intoxicating substance. However, intoxication, whether intentional or not and whether full or partial, can be taken into account to determine whether a person was able to form a specific intention: CCQ; CCWA, s 28(3). This will only be relevant for offences that require a specific intention, such as murder and stealing. For instance, if a person has been drinking and they get into a fight and kill the victim, the fact

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In this case, before convicting of murder, the jury must have been satisfied that death was caused by means of an act done in the prosecution of the burglary. The offence of burglary has an intention to cause a specific result as an element, namely an intent to commit an indictable offence in the dwelling particularised here as an intent to steal or sexually assault. This required the jury, before convicting of murder under s 302(1)(b), to be satisfied that the appellant did the act which caused each death while prosecuting a burglary, that is, while entering or being in the deceased’s house intending to steal or sexually assault in the house. If follows that the prosecution had to prove that the appellant intended to either steal or sexually assault in the deceased’s house whilst entering or in the house in order to establish each charge of murder by way of s  302(1)(b). That does not mean that where there is evidence of intoxication, s 28(3) will always have application to a charge of murder brought under s 302(1)(b). For example, if the prosecution case under s 302(1)(b) was that death was caused by means of an act done in the prosecution of a rape, as intent is not an element of the offence of rape under s 349 Criminal Code, s 28(3) would have no application. This view of the interaction between s 28(3) and s 302(1)(b) sits comfortably with the plain meaning of the terms of those subsections. It also sits comfortably with the terms of s 302 read as a whole. Certain specified intentions are expressly excluded in s  302(3) and (4). In the absence of clear words, there is no reason to conclude that a murder charge brought under s  302(1)(b) will never have a intention to cause a specific result as an element … In the present case, where burglary was the particularised unlawful purpose under s 302(1)(b), the judge erred in not directing the jury as to intoxication under s 28(3) when considering murder by way of s 302(1)(b). The judge was required to inform the jury that the appellant’s intoxication may be regarded for the purpose of ascertaining whether he did an act causing each deceased’s death whilst entering or inside the deceased’s house with an intent to steal or sexually assault.

Where there is evidence of intoxication, the prosecution has the onus to prove that the accused did form the specific intention (that is, the prosecution has to disprove that the intoxication was such as to render the accused incapable of forming the specific intention)  –​see Dearnley v The King [1947] St R Qd 51; (1947) 41 QJPR 71 and Thomas v The Queen (1960) 102 CLR 584; [1960] ALR 233. For offences without a specific intention, such as manslaughter, s 28(3) has no application and so a person can still be liable even where intoxicated.

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that they are intoxicated may be relevant to determine whether the person could form the specific intention required for murder.Thus, if the person was so intoxicated that they did not form the intention to kill and did not intend to do grievous bodily harm (Qld) or an injury that endangers or is likely to endanger life (WA), then that person cannot be liable for murder. Intoxication may be relevant to a case of murder by unlawful and dangerous act depending on the unlawful purpose that the accused was prosecuting.This was explained in R v George [2013] QCA 267; [2014] 2 Qd R 150 at [47]-​[49]:

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Intoxication and pre-​existing mental disease [12.140] 

The interaction between intoxication and a pre-​existing mental disease was considered in R v Clough [2011] 2 Qd R 222; 200 A  Crim R 140; [2010] QCA 120. The appellant was convicted for the murder of his wife. He had a psychotic disorder that was aggravated when he used drugs. The trial judge found that at the time of the killing the appellant was suffering from a “mental disease”. He had also voluntarily consumed the methylamphetamine three days before, which continued to have an effect on him. Although at the time of the act he was deprived of the capacity to know he ought not do the act (see [12.90]), he would not have been deprived of this capacity if it were not for the continuing effects of the methylamphetamine. The primary judge found that this secondary effect of drug consumption fell within the meaning of “intoxication” in CCQ; CCWA, s  28(2). As the appellant had intentionally caused himself to be intoxicated with methylamphetamine, he could not rely on CCQ; CCWA, s 27 to absolve himself of criminal responsibility. On appeal, the issue arose as to whether the trial judge had erred in the application of the CCQ, ss 27 and 28(2). The appeal was dismissed. As was stated by Muir JA at paragraph [26]: It can readily be seen from the plain words of s 27(1) that the sub-​section applies only if it is the “state of mental disease or natural mental infirmity” which deprives the person of one of the specified capacities. Where a person is deprived of a relevant capacity by the effects of intoxication on a pre-​existing condition, the pre-​requisites for release from criminal responsibility are not engaged. If s 27(1) did apply in those circumstances, it would be inconsistent in its application with s 28.

Therefore, the appellant either needed to establish, on the balance of probabilities, that he was not intentionally intoxicated, or if he was, his mental disease itself was sufficiently severe to deprive him of that capacity regardless of the intoxication. It was held that intoxication can include both short-​term stimulation as well as the secondary effects from which the appellant was suffering at the time of the killing (that is, a cerebral disturbance experienced after the “high” from taking the drugs had ended). As Muir JA stated at [15]: There is no reason to suppose that in excluding intentional intoxication or stupefaction from the relief from criminal responsibility afforded by s  27, the legislature had in mind the exclusion only of an intentional intoxication which had a fleeting effect.The purpose of the exclusion in s 28(2) is to deprive a person who has intentionally used a substance to become intoxicated or stupefied of the ability to deny criminal responsibility for his or her acts or omissions on the grounds of

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Further, it was found that the words “other agent” in s  28(2) are not necessarily limited to another toxic substance. They include a state or condition that operates to produce an effect, including an underlying mental disorder. Therefore, it does not matter whether the intoxication is caused by alcohol, drugs, a combination of them or by any other means. See also Attorney-​ General (Qld) v Bosanquet [2012] QCA 367. If the accused would have been deprived of one of the capacities in CCQ; CCWA, s 27 even without the effects of intoxication, an insanity defence can still be successful. Philippides J stated (at [107]): Even accepting that there is merit in the appellant’s submission that the MHC ought to have proceeded on the basis that the respondent was probably intoxicated at the material time, there was support in Dr Grant’s evidence for the finding of unsoundness of mind on the basis that the respondent’s mental illness alone resulted in the deprivation of the relevant cognitive capacity, which opinion was endorsed by the assisting psychiatrists. My conclusion that Dr O’Sullivan’s evidence did not provide a sufficient basis in law for a finding of deprivation of the relevant cognitive capacity therefore does not preclude this Court from confirming that aspect of the MHC’s decision.

In WA, The State of Western Australia v Herbert [2017] WASC 101 confirms that s 27 does not apply in cases of intentional intoxication (see also Stapleton v Queensland Police Service [2019] QDC 190). In The State of Western Australia v Herbert, Jenkins J stated (at [61]-​[66]): … the Code  s  27  only applies where the accused’s state of mental impairment, which by definition does not include temporary intoxication by drugs and/​or alcohol, deprives the accused of one of the relevant capacities. The onus is on the accused to prove that any mental impairment he suffered deprived him of a relevant capacity.

The question then is what role does the Code s 28 play? It can be “readily seen from the plain words of ” the Code s 28(2) that the subsection says that the Code s 27 does not apply to an accused who has intentionally caused himself to become intoxicated. Thus even where an accused can prove that his mental impairment deprived him of a relevant capacity, he will not be able to avail himself of the insanity defence if he was voluntarily intoxicated at the time he did the relevant acts. As the onus is on the accused to prove that he falls within the Code s 27, the onus must be on the accused to prove that he was not voluntarily intoxicated.

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lack of mental capacity. Once this is understood, there can be no sensible reason for not applying s 28(2) merely because the state of intoxication or stupefaction intentionally caused by the substance used by that person lasts for days rather than hours. The words of s  28(2) contain no express temporal limitation and none is implicit.

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Intoxication and mistake [12.150] 

Where a person holds a mistaken belief due to intoxication, this may or may not be relevant depending on whether or not there is a need to rely on the excuse of mistake of fact in CCQ; CCWA, s  24. In cases where a specific intention is required, a mistake may affect whether a person can form the required intention and so there may be no need to rely on the excuse of mistake of fact. As discussed above, for the offence of murder, a person must intend to kill or do grievous bodily harm (Qld) or an injury which endangers or is likely to endanger life (WA). If a person is so intoxicated that they mistakenly believe that the person they are beating is a dog, they will not have formed the intention to kill a person or do grievous bodily harm (Qld), or an injury which endangers or is likely to endanger life (WA), and therefore they cannot be liable for murder.3 For offences that do not require a specific intention, the person may need to rely on the excuse of mistake of fact if they hold a mistaken belief. However, for this excuse to apply the belief must be both honest and reasonable. Intoxication may affect whether a person makes an honest mistake; however, it is not taken into account in determining whether the mistake was reasonable. In Aubertin v Western Australia (2006) 33 WAR 87; [2006] WASCA 229 at [44], it was stated that “[s]‌elf-​induced impairment by alcohol and drugs can only be a negative, or at best neutral, factor in assessing whether an accused’s belief was reasonable. That is, reasonableness is not to be assessed by reference to the perception or appreciation of an alcohol or drug impaired accused.” See also R v O’Loughlin [2011] QCA 123. Thus, in the above example, the person will be liable for manslaughter but could raise the excuse of mistake of fact if they honestly believed the victim was a dog. However, if the mistaken belief was only made because the person was intoxicated, it will not be found to be a reasonable belief and the excuse will fail, leading to a conviction for manslaughter.

Immaturity [12.160] 

Section 29 of both Codes provides for two age levels in relation to criminal responsibility. According to CCQ, s  29(1); CCWA, s  29 (first para), a child under the age of 10 is not criminally responsible for any act or omission. Thus, whatever the level of understanding of a child below this

3

They may of course be liable for other offences relating to animal cruelty or criminal damage.

age, they cannot be prosecuted. A  child under this age may of course be dealt with in welfare proceedings. Currently there are calls for this age level to be raised to at least 12 or higher (see for instance, Amnesty International, A Brighter Tomorrow:  Keeping Indigenous Kids in the Community and out of Detention in Australia (2015); Report of the Royal Commission into the Protection and Detention of Children in the Northern Territory (2016)). From the age of 10 until the age of 14 a child cannot be found criminally responsible unless they had the capacity to know that they ought not do the act or make the omission.Therefore, if the prosecution wish to prosecute a child aged 10 but not yet 14, they must prove that the child had the capacity to know that the conduct was seriously wrong, that is something more than merely naughty or mischievous. It has been held that “wrong” means wrong according to the ordinary standards of reasonable people:  RP v The Queen (2016) 259 CLR 641; R v GW [2015] NSWDC 52; R v JA (2007) 174 A Crim R 151; [2007] ACTSC 51; R (a child) v Whitty (1993) 66 A Crim R 462; R v ALH [2003]VSCA 129; (2003) 6VR 276; C v Director of Public Prosecutions [1995] UKHL 15; [1996] AC 1; R v M (1977) 16 SASR 589. It should be remembered that this is not an excuse or a defence that the child must raise, but the prosecution must bring proof that the child had this capacity as part of its case: RP v The Queen (2016) 259 CLR 641.Thus, the presumption that the child lacks the capacity to be criminally responsible must be rebutted by the prosecution if the child is to be convicted of an offence. The starting point for establishing whether the child aged 10 but not yet 14 had the requisite capacity will generally be the age of the child and the type of act committed. As stated by Cummins AJA in R v ALH (2003) 6 VR 276 at 298, some acts are so obviously wrong that a child will understand their wrongfulness at an early age. Proof of the acts constituting the offence is not, however, sufficient without more to establish the requisite capacity because a fundamental principle regarding rebuttal is that the guilty knowledge “must be proved by express evidence, and cannot in any case be presumed from mere commission of the act”: C v DPP [1995] 2 All ER 43 at 62; see also RP v The Queen (2016) 259 CLR 641; R v JA (2007) 174 A Crim R 151; [2007] ACTSC 51 at [81]. Other factors that may be relied upon to establish the requisite capacity include how the child committed the offence, the circumstances surrounding the offence (that is, whether they rendered the victim incapable), conduct after the offence, such as running from the scene or answers given in police interviews, family backgrounds, criminal record and expert evidence –​for example, psychologist or psychiatric reports. Further, “the nearer the child in question is to the age of 14, the less strong need the evidence be if the presumption is to be rebutted”: R (a child) v Whitty

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(1993) 66 A Crim R 462 at 465 per Harper J. Even if a child is reprimanded for certain behaviour, if he or she lacks the capacity to know that the behaviour is wrong, those reprimands are unlikely to have much significance:  see R v EI [2009] QCA 177. Note, that if a child is not capable of being criminally responsible, he or she cannot be an accomplice to an offence –​ R v Quy (1905) 7 WALR 268.

Elements toolbox Insanity [12.170] 

The defence of insanity in CCQ; CCWA, s 27(1) requires that

an accused: 1.

Had a mental disease or natural mental infirmity (Qld) or mental impairment (WA),

2.

Which deprived her or him of the capacity: (a)

to understand what he or she was doing; or

(b)

to control her or himself; or

(c)

to know that he or she ought not to do the act or make the omission.

Intoxication

The defence of intoxication in CCQ; CCWA, s  28(1) requires that an accused: 1.

Is unintentionally intoxicated; and

2.

The intoxication is such that he or she is deprived of the capacity: (a)

to understand what he or she was doing; or

(b)

to control her or himself; or

(c)

to know that he or she ought not to do the act or make the omission. According to CCQ; CCWA, s 28(3) an accused will not be liable for an offence: 1.

Where the offence requires a specific intention; and

2.

The accused’s intoxication means that he or she was unable to form the requisite intention; and

3.

It does not matter whether the intoxication was full or partial nor whether it was intentional or unintentional.

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Immaturity

According to CCQ, s 29(1); CCWA, s 29 (first para), a child under 10 is not criminally responsible for any act or omission. According to CCQ, s 29(2); CCWA, s 29 (second para), a child aged 10 but not yet 14 is only criminally responsible if he or she had the capacity to know that he or she ought not to do the act or make the omission.

Guide to problem solving • Is the defence of insanity in CCQ; CCWA, s 27(1) available to the accused? – Did the accused have a mental disease or natural mental infirmity (Qld) or mental impairment (WA)? • Check the meaning of “mental disease or natural mental infirmity” (CCQ) or “mental impairment” (CCWA) in s 1. • Apply. – Was the mental disease or natural mental infirmity (Qld) or mental impairment (WA) such that the accused was deprived of one of the three capacities? • Check the meaning of the capacities in CCQ; CCWA, s 27(1). • Apply.

– Conclude whether the defence of insanity is available to the accused.

• Is the defence of intoxication in CCQ; CCWA, s 28(1) available to the accused?

– Was the intoxication intentional (in the sense that the accused voluntarily consumed the intoxicant) or unintentional?



– If it was intentional then the excuse is not available (but may be relevant to determining any specific intention).



– If the intoxication was unintentional, was it to such a degree that the accused was deprived of one of the capacities listed in CCQ; CCWA, s 27(1)? • Check the meaning of the capacities in CCQ; CCWA, s 27(1). • Apply.

– Conclude whether the defence of intoxication is available to the accused. • Is intoxication relevant to whether an accused could form a specific intention? – Check whether the offence in question requires a specific intention.

– If it does not, then this provision is not relevant.

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[12.180] 

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• If the offence does require a specific intention, determine whether the intoxication affected the accused’s ability to form the requisite intention.

– Conclude whether the accused could be liable for the offence requiring a specific intention and, if not, assess whether any other offences not requiring a specific intention are applicable.

• Can the child be criminally responsible for an offence?

– Check the relevant provisions in CCQ; CCWA, s 29.



– Determine whether the child is under 10. • Determine whether the child is aged 10 not but not yet 14.

– If so, check the circumstances in which a child of this age group can be found to be criminally responsible. – Determine whether the child can be found to be criminally responsible.

Revision questions 1.

Is the defence of insanity open to a person who goes into a dissociative state after suffering an emotional shock?

2.

Is the defence of insanity open to a person who suffers concussion after being hit on the head?

3.

Is the defence of insanity open to a person who knows that what they are doing is wrong but is unable to control their actions?

4.

Is the defence of intoxication open to a person who drinks six standard units of alcohol but does not intend to become intoxicated?

5.

Is the defence of intoxication open to a person who eats a cookie which they do not know, and have no reason to suspect, contains cannabis?

6.

Does the fact that a person intentionally consumes alcohol mean that they cannot be liable for an offence requiring a specific intention?

7.

Is lack of capacity due to age a defence that the child must raise?

Problem question Jeremy is collecting for charity by going from house to house. He knocks on the door of Penelope, who invites him in for a cup of tea and some cake while she looks in her bedroom to see if she has anything to give away. Jeremy eats the cake and notices that it tastes strange but, because he never drinks alcohol, he does not realise that this is

CHAPTER  12  INSANITY, INTOXICATION AND IMMATURITY      439

because the cake has been soaked in brandy. Further, he notices that the tea burns his throat but again does not realise that this is because it contains whisky. When Penelope returns to the kitchen some time later Jeremy is beginning to feel a bit “strange”. He feels that he needs some fresh air, so he stands up. Penelope goes over to him and asks, “Are you feeling ok?” Jeremy pushes Penelope away but doesn’t realise that he is still holding the cake fork, which jabs into Penelope’s arm, pierces the skin and causes bleeding. Jeremy is shocked and grabs what he thinks is his bag and runs out of the house. The bag actually belongs to Penelope.

Answers to revision questions 1.

The defence of insanity is not applicable to a person “if the psychological trauma causes a sound mind, possessed of the requisite standard of strength, to malfunction only transiently”: R v Falconer (1990) 171 CLR 30; see also CCWA, s 1. This would amount to “non-​ insane” automatism and the relevant excuse would be lack of will in CCQ, s 23(1)(a); CCWA, s 23A.

2.

The defence of insanity is not available where there is an external cause to the mental disease or natural mental infirmity (Qld) or mental impairment (WA). However, the excuse of lack of will in CCQ, s 23(1)(a); CCWA, s 23A may be available. See Cooper v McKenna [1960] Qd R 406.

3.

Yes, the defence is available where a person is unable to control her or his actions due to mental disease or natural mental infirmity (Qld), or mental impairment (WA). The three capacities the accused must lack for this defence to apply are alternatives; the accused need not be deprived of all three capacities.

4.

The defence of intoxication in CCQ; CCWA, s 28(1) is not available where a person becomes intentionally intoxicated. The relevant issue is whether the accused voluntarily consumed the intoxicant, not whether the accused intended to become intoxicated. However if the complete or partial intoxication is intentional, it can be taken into account in determining whether the accused formed any specific intention that is part of the offence CCQ; CCWA, s 28(3).

5.

The defence of intoxication in CCQ; CCWA, s 28(1) is available to a person who does not voluntarily consume the intoxicant provided that the intoxication is such that the person is deprived of one of the three capacities listed in CCQ; CCWA, s 27(1).

6.

No, the fact that a person has consumed alcohol does not automatically mean that they cannot form the required intention. Whether the accused could form any specific intention is a question of fact for the jury. The fact that the accused consumed

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Discuss the criminal liability of Jeremy.

440      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

alcohol may be taken into account to determine whether he or she did form any required intention CCQ; CCWA, s 28(3). 7.

No, the prosecution must bring evidence and prove that a child aged 10 but not yet 14 had the capacity to understand that he or she ought not do the act or make the omission. Under 10 the child cannot be prosecuted regardless of any proof.

Answer to problem question Jeremy could be liable for the offence of unlawful wounding in CCQ, s 323; CCWA, s 301(1). For this offence it must be established that Jeremy unlawfully wounded Penelope. “Wounding” is not defined in the Codes but the case of Devine v The Queen (1983) 8 A Crim R 45 explains that the term means breaking both layers of skin (the dermis and the epidermis). Here Jeremy has broken both layers of skin on Penelope’s arm and this is evident by the fact that Penelope is bleeding. Jeremy has therefore wounded Penelope. The wounding would not be unlawful if Jeremy has some authorisation, justification or excuse. A possible excuse is intoxication in CCQ; CCWA, s 28(1). This excuse requires that Jeremy was unintentionally intoxicated and that this was to such a degree that he was deprived of one of the capacities listed in CCQ; CCWA, s 27(1). There is no doubt that Jeremy was unintentionally intoxicated because he did not voluntarily consume alcohol; he did not know that what he was consuming contained alcohol and he could not reasonably know this having never experienced alcohol. However, his intoxication does not appear to have been such that it deprived him of the capacity to know what he was doing, nor of the capacity to control himself, nor to know that what he did was wrong. Western Australia v Brown [No 3] [2013] WASC 349 at [506] confirms that it is not sufficient that the capacity is impaired rather a person must be deprived of the capacity. This excuse would therefore not apply and he could be liable for unlawful wounding unless some other defence or excuse applies. Jeremy could also be liable for stealing the bag under CCQ, s 398; CCWA, s 378. According to CCQ, s 391; CCWA s 371, this requires that Jeremy fraudulently takes or converts anything capable of being stolen. The bag is a moveable object which belongs to Penelope; therefore it is capable of being stolen: see CCQ, s 390; CCWA, s 370. To be fraudulent, the thing must be taken with one of the intentions listed in CCQ, s 391(2); CCWA, s 371 (2) –​for example, the intention to permanently deprive the owner. Jeremy mistakenly believes that the bag he takes is his bag and the fact that this belief may have been influenced by his consumption of alcohol can be taken into account: CCQ; CCWA, s 28(3). This means that Jeremy does not have any of the required intentions and so cannot be convicted of stealing.

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1.

Do you consider that the definitions of “mental disease or natural mental infirmity”/​“mental impairment” give sufficient guidance on the sort of mental states that should found a defence of insanity?

2.

Do you think that the defence of insanity should be available where a person cannot control her or his actions due to mental impairment?

3.

Should a person have a defence when they are so intoxicated that they are deprived of one of the three capacities listed in Criminal Codes, s 27 even if the intoxication was intentional?

4.

Do you think the age level of criminal responsibility is set too low, too high or is about right?

5.

Do you think that the condition for when a child aged 10 but not yet 14 can be held to be criminally responsible is appropriate?

6.

Should a child be found not to be criminally responsible when he or she knows that the act is wrong but is not mature enough to control her or his actions?

Readings • T Crofts and K Burton, Criminal Codes: Commentary and Materials (6th ed, Thomson Reuters/​Lawbook Co., Sydney, 2009) Ch 10. • T Crofts, Criminal Law in Queensland and Western Australia (2nd ed, LexisNexis, Sydney, 2014) Ch 8. • K Burton, LexisNexis Questions and Answers: Criminal Law in Queensland and Western Australia (2nd ed, LexisNexis, Sydney, 2015) Ch 11.

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Critical thinking questions

CHAPTER 13 Honest Claim of Right to Property and Mistake of Fact Learning outcomes .........................................................................   443 [13.10] Principles............................................................................   444 [13.10] Section 22...............................................................................   444 [13.150] Section 24 ............................................................................   453 [13.230] Elements toolbox..............................................................   460 [13.240] Guide to problem solving..................................................   461

Problem questions .........................................................................   462 Answers to revision questions .......................................................   463 Answers to problem questions ......................................................   464 Critical thinking questions .............................................................   465 Reading ...........................................................................................   465

Learning outcomes This chapter will enable you to: • Consider the legal context of the defence of honest claim of right to property • Learn the elements of the defences in ss 22 and 24 of the Codes • Learn current judicial interpretations of those elements and, in some instances, learn the past judicial interpretation in order to gain a perspective on the development of legal principle • Locate relevant primary sources (cases and legislation) for essential reading on the defences • Practise applying the law by attempting the problem question

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Revision questions .........................................................................   462

444      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Principles Section 22 [13.10] 

Section 22 creates a fundamental rule of criminal responsibility –​ that mere ignorance of the law is no excuse.The defence (or, for Queensland, defences) created in s 22 are exceptions to this general rule.The general rule and the defence of “honest claim of right” to property are exactly the same in substance in Western Australia and Queensland. Queensland, however, has a further defence (in subss (3) and (4)) which does not exist in Western Australia –​namely, a defence, in some circumstances, to a contravention of a statutory instrument. The general rule of criminal responsibility in s 22 [13.20] 

The general rule of criminal responsibility in CCQ, s  22(1); CCWA, s 22 (first para) states that: Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.

The rule arguably contradicts the philosophy of criminal responsibility that requires a knowing transgression. In other words, holding a person criminally responsible where they are ignorant of the law can result in imposing criminal liability where there is no consciousness of wrongdoing. This arguably contradicts the philosophy underlying CCQ, s 23(1); CCWA, s 23A, and s 27 of both Codes. However, a justice system would have little chance of working if knowledge of the offence itself were required to be proved. In the case of offences such as murder, there is a confluence of moral and legal norms so that ignorance of the offence of murder is very unlikely to amount to ignorance of the wrongdoing of murder. But this is not the case with many less serious offences. It is quite conceivable that a person could be ignorant of the wrongdoing as well as the offence of, say, catching an undersized fish or collecting a debt for another person without a licence. Thus, the principle in the general rule in s 22 reflects a pragmatic need –​that is, for the system to work. “[T]‌he rule that ignorance of the law is no excuse [is] ‘the working hypothesis on which the rule of law rests in British democracy’ ”: Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30 at [2], quoting Scott LJ in Blackfoot Corporation v Locker [1948] 1 KB 349

CHAPTER  13  HONEST CLAIM OF RIGHT TO PROPERTY AND MISTAKE OF FACT       445

at 361.1 Note also, in light of this discussion, that CCQ, s 22(3), provides an excuse for ignorance of the law in a “statutory instrument”, where the statutory instrument has not been published or otherwise made available. An honest claim of right: An exception to the general rule in s 22 [13.30] 

Section 22 (CCQ, s 22(2); CCWA, s 22 (second para)) provides an exception to the general rule of criminal responsibility by stating (CCQ text appears in italics; CCWA text appears in brackets): (2) But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by [him] the person with respect to any property in the exercise of an honest claim of right and without an intention to defraud.

This defence is about property. It is sometimes considered a “mistake of law”, in contrast to the defence in s 24, which is a “mistake of fact”. However, this is a potentially misleading dichotomy and the defence in s 22 is most usefully thought of in its own context, as an assertion of entitlement with respect to some form of property: see the discussion in Hollywood v City of Joondalup [2010] WASC 306 at [33]-​[34]. The defence falls within the general rule in Woolmington v DPP [1935] AC 462 so the legal (or persuasive) burden of proof remains with the prosecution to disprove the elements of the defence. The only obligation on the accused is the evidentiary burden –​that is, to adduce evidence (or point to evidence in the prosecution’s case) that raises each of the elements of the defence. Section  22 is in Ch  V of the Codes and so is a general excuse and, subject to limitations imposed by the terms of the defence themselves, s 22 can apply to offences throughout the Code. Further, s 36 of the Codes makes s 22 apply also to offences created by any other State statute. In fact, s 22 cases often deal with offences created by statutes other than the Code because these are often offences “relating to property” –​for example, statutory schemes regulating wildlife, health and safety, building and construction and licensing of occupations involving property.

1

For further reading on criminal responsibility, see, for example, P Brett, An Inquiry into Criminal Guilt (Sweet & Maxwell, London, 1963) Ch 3; D C Dennett, Elbow Room: The Varieties of Free Will Worth Wanting (Clarendon Press, Oxford, 1984) Ch 7; K Huigens, “Homicide in Aretaic Terms” (2002) 6 Buffalo Criminal Law Review 97; C Crofts and A Loughnan (eds), Criminalisation and Criminal Responsibility in Australia (Oxford University Press, 2015); N Lacey and H Pickard, “A Dual-​Process Approach to Criminal Law: Victims and the Clinical Model of Responsibility Without Blame” (2019) 27 (2) The Journal of Political Philosophy 229.

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446      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Element: An offence relating to property [13.40] 

The defence will only apply where the offence the accused is charged with is one relating to property. Therefore, the inquiry in this element concerns the statutory terms of that offence and not the facts of the particular case. The courts have taken a broad view of what amounts to an offence relating to property. If the offence concerns “property” within the definition of s 1 of the Codes, then it comes within this element of s 22. This was the unanimous view of the Court of Appeal of Western Australia in Molina v Zaknich (2001) 24 WAR 562: see also Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140. In Molina v Zaknich, the court followed the reasoning of Deane, Toohey and Gaudron JJ in Walden v Hensler (1987) 29 A Crim R 85 in rejecting Virtue J’s conclusions in Pearce v Paskov [1968] WAR 66 (Pearce v Paskov). Consider how the interpretation of this element of s 22 changed over the course of these three cases and how the judges justified the development.2 In Pearce v Paskov,Virtue J said (at 72): Part VI of the Criminal Code of Western Australia is headed “Offences relating to property and contracts”, and I have no doubt that the phrase “offences relating to property” in s 22 should be construed as applying exclusively to offences of the character of those defined in that Part of the Code.

This conclusion was considered by the High Court in Walden v Hensler (1987) 29 A Crim R 85 (Walden v Hensler). There, Mr Walden, a member of the Gungalida Aboriginal people, who belong to the country around Burketown in Queensland, had hunted all his life in his traditional country. His country was also a pastoral station. At the time of the offence Mr Walden hunted about twice a week. One Sunday he obtained permission from the pastoral station manager and went hunting with his family. He caught a bush turkey and his son took a bush turkey chick home to raise. Mr Walden was charged under s 54 of the Fauna Conservation Act 1974-​1979 (Qld) with taking and keeping fauna without a licence or permit and wished to rely on the excuse in s 22. Brennan J endorsed the conclusion of Virtue J in Pearce v Paskov. Brennan  J said (at 94-​95) that this meant the offences must be those the essence of which is causing a person to part with their property or interfering with someone’s right over or in respect of property. He did not include within this group offences which merely “affected” property more

2

Note from the following discussion, for example, how, even after three of the five judges in Walden v Hensler rejected Virtue J’s interpretation of the phrase in question, there was still no binding majority judgment.

generally. Section 54 of the Fauna Conservation Act 1974-​1979 (Qld) was of this latter kind and fell outside s 22. However, Deane,Toohey and Gaudron JJ took the opposite view, finding that this element should not be limited to offences essentially concerned with interference with property rights. It should mean any offence concerning property. The offence in question related to fauna, which was the property of the Crown, and therefore the offence related to property (Walden v Hensler at 118). Therefore, three of the five justices in Walden v Hensler rejected the approach taken by Virtue  J. However, two of those three justices wrote dissenting judgments, which meant that there was no clear majority view. Subsequently, a unanimous court in Molina v Zaknich at 579 rejected the narrower view of Virtue  J. Mr  Molina, a union official, went on to a construction site at Canning Vale Prison in response to a phone call from a union member. He remained on the site after being warned to leave by a manager. Molina was charged under Police Act 1892 (WA), s 82B, which prohibited a person, without lawful excuse, from remaining on premises after being warned to leave. Mr Molina claimed he thought he was entitled to remain as a union official. McKechnie  J, with whom Martin  CJ and Templeman  J agreed, followed the reasoning of Deane, Toohey and Gaudron  JJ in Walden v Hensler. According to McKechnie J, Virtue  J had paid too little attention to the definition of “property” in CCWA, s 1. The offence in question concerned “premises”, which came within the definition of “property” in CCWA, s 1 and so the offence in Police Act, s 82B was an offence relating to property within s 22. Thus, the broad view prevails. Offences pertaining to “property” defined in s 1 of the Codes are offences relating to property for s 22: see also Interim Advance Corporation v Fazio [2008] WASCA 140 at [81]. Element: An act done or omitted to be done with respect to property [13.50] 

The principle to note here is that the property in relation to which the act or omission is done must be the property in relation to which the claim of right is made. In R v Walsh [1984] 2 Qld R 407, the accused killed oxen that he feared would stray on to his property and damage his avocado trees. The cattle had done this in the past. Mr Walsh was charged with unlawfully and wilfully killing an animal under CCQ, s 468. It was held that s 22 did not apply in this case. Mr Walsh had done an act with respect to the oxen but his claim of right was to his own property –​his avocado trees. He had no relevant claim of right to the oxen themselves (at 408-​409).

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448      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Element: In the exercise of an honest claim of right Honest [13.60] 

An “honest” claim means a claim in fact held. There is no requirement that the belief held by the accused be reasonable. Thus, this is a subjective (not an objective) inquiry. This is clear from the terms of s 22 and is affirmed in Molina v Zaknich (2001) 24 WAR 562 at 576 and R v Williams at 467, 474-​475:  see also Preston v Parker [2010] QDC 264. Further, an “honest” claim is not determined by reference to the purpose of the accused’s act or the circumstances surrounding it. There is no moral content to the concept of “honesty”. In R v Williams (1986) 21 A Crim R 460, the accused entered a house with the purpose of buying illicit drugs from the occupants. He believed he had consent to enter the house because he had visited the occupants before and they had told him he could come “any time”.The magistrate held that this did not amount to an honest claim of right because he was entering to buy illicit drugs. The Court of Appeal rejected this reasoning, holding that the accused had an honest claim of right if the claim was in fact held and the question was not to be assessed by reference to the accused’s purpose. Claim of right [13.70] 

The most complex questions about s 22 arise in respect of the concept of “claim of right”. The essential question is: what are the types of entitlements an accused may assert that come within the idea of a “claim of right”? An existing entitlement

It is clear that a claim of right must be an assertion of an existing right. A claim to a future right is insufficient. In R v Pollard [1962] QWN 13 (R v Pollard), the accused was charged with unlawful use of a motor vehicle. He knew the owner of the vehicle and claimed that, although he had not asked the owner for permission, if he had been asked, the owner would have given consent. This was held to be a right that could come within the terms of s 22. Had the accused been claiming a future right it would not have amounted to a relevant claim, but the court construed the accused’s honestly held belief to be that he had an existing right to use the vehicle.

[13.80] 

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Of a nature not recognised as a legal right

Must the claim be one that would (had it been correct, not mistaken) have been recognised as a legal right? For example, an accused may assert that he or she took an item of property because they thought the property was theirs. Ownership is a recognised form of entitlement. But can an accused assert an entitlement that is not of a legal nature? It is said that an entitlement can be one not recognised as a legal right. In R v Pollard, the accused’s subjective understanding was unfounded in fact or law; nevertheless, it was held that it amounted to a claim of right under s 22. See also, R v Waine [2005] QCA 312. The question whether a right that is not recognised under law can be a “claim of right” for s 22 has also arisen in the context where the accused is Aboriginal and has exercised traditional rights of hunting or fishing etc. In Walden v Hensler (1987) 29 A Crim R 85, Mr Walden’s claim to a right to hunt and keep a bush turkey was a claim arising from a right under his traditional Aboriginal law. Toohey  J formulated the question as:  Did Mr Walden’s belief, that as an Aboriginal man pursuing a particular lifestyle he was entitled to take and keep the bush turkey, amount to a right within s 22? Brennan and Toohey JJ (at 90, 115) answered the question in the affirmative. Deane and Dawson JJ (at 99, 108-​109) answered in the negative. Gaudron J (at 120)  held that belief in the traditional right itself was insufficient but, coupled with an accused’s belief that such a right was recognised under the general law, it would amount to a claim of right under s 22. In Mueller v Vigilante (2007) 177 A  Crim R 506 (Mueller v Vigilante), McKechnie  J held that a claim of right arising from traditional Aboriginal law could amount to a claim of right for s 22, thus following the reasoning of Brennan and Toohey JJ in Walden v Hensler (1987) 29 A Crim R 85. In Mueller v Vigilante, the accused took two boys (sons of his friend) out fishing.The boys caught some crabs and asked if they could keep them. The accused told the boys they could. He said this because he knew that the boys were fishing in their traditional country and had an entitlement under their own law to catch the crabs. The accused, who was not an Aboriginal man, was charged under Fish Resources Management Act 1994 (WA), s 45 with possessing totally protected fish. McKechnie J held that the accused’s possession of the crabs was an incident of the boys’ claim and their claim was one within the meaning of s 22.3 3

It should be noted that many claims by Aboriginal people who have exercised traditional rights will now be dealt with in a different way that does not involve a consideration of s 22. This is because many cases will be governed by the Native Title Act 1993 (Cth). After Mabo v Commonwealth [No 2] (1992) 175 CLR 1, the Commonwealth enacted the Native Title Act 1993. Section 211 of that Act affects the

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[13.90] 

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Claim of right verses immunity from prosecution [13.100] 

Although an accused’s assertion may amount to a claim not recognised in law, if their claim is, essentially, merely a claim that they are immune from the operation of the criminal law, then this is not a claim of right within s  22. The claim must be a claim “in or to” or about the property, not about immunity from prosecution:  Olsen v Grain Sorghum Marketing Board; Ex parte Olsen [1962] Qd R 580 at 585. (See also Investments (WA) Pty Ltd v City of Swan (No 2) [2013] WASCA 251 at [60], [70].) In Olsen, the accused was convicted under Primary Producers’ Organisation and Marketing Acts 1926-​1957 (Qld), s  15 which required all grain to be sold to a marketing board. Olsen obtained legal advice that that State law was invalid if it interfered with interstate trade because it would contravene the freedom of interstate trade guaranteed by Commonwealth Constitution, s 92. In fact, this advice was incorrect. Mr Olsen had driven his grain over the border from Queensland to New South Wales and then back again to Queensland so that he could assert that he was involved in interstate trade. The Queensland Court of Appeal held that this was not a relevant claim of right because it did not pertain to the property but was, in essence, a claim to be immune from prosecution. Another way to understand Olsen (Olsen v Grain Sorghum Marketing Board; Ex parte Olsen) is to say that mere ignorance of the law does not itself constitute a claim of right. Section 22(1) of the CCQ; CCWA (first para) prohibits mere ignorance of the law from being an excuse. The distinction between mere ignorance of the law and a defence of claim of right has also arisen in cases dealing with occupational licences. These cases can be difficult to characterise on their facts but the principle remains the same. If the accused’s mistaken understanding was essentially that the law did not apply to them, then there is no claim of right under s 22. On the other hand, if their (unfounded) claim is that they were entitled to do the act they did with respect to property, then there is a claim within s 22. How an accused’s subjective understanding is characterised is therefore pivotal. If the accused believed they could undertake activity without a licence where a licence is required by law, then there is no s 22 claim. However, if the accused either operation of State laws that regulate certain activities by way of licences or permits. Section 211 provides that these regulatory statutes do not apply to Aboriginal people who are exercising native title rights. Thus, the Native Title Act limits the operation of the State Acts, whereas a s 22 defence is in answer to a prosecution under a State Act. Yanner v Eaton (1999) 201 CLR 351 is an example of how s 211 of the Native Title Act operates.

knew they were required to have a licence but believed that the terms of their particular licence permitted them to do what they did (Interim Advance Corporation v Fazio [2008] WASCA 140), or that what they believed they were doing did not require a licence, then they may have a s 22 claim of right: Hollywood v City of Joondalup [2010] WASC 306. In Interim Advance Corporation v Fazio, the appellant, Interim Advance Pty Ltd (IA), took out a Local Court summons claiming money from a Mr Clark. However, most of the money in question was owed by Mr Clark to a third party and not to IA. The third party to whom the money was owed was paying IA to be its debt collector. The Debt Collectors Licensing Act 1964 made this conduct unlawful without a licence and therefore IA was prosecuted under s 5 of that Act. Although IA did not have a licence, did they have a claim of right under s 22? If IA’s only claim (ascertained by examining the state of mind of its sole proprietor) was that it could do what it did (collect the debt for a third party) without a licence, then there was no relevant claim of right. But the Court of Appeal of Western Australia held that the evidence suggested something else. It suggested IA’s proprietor claimed a right for himself to the debt. Based on his (incorrect) understanding of the contractual documents, he was claiming the debt for himself, not on behalf of the third party. And since that conduct (claiming a debt for oneself) falls outside the activities for which a licence is required, his claim of right to the debt owed was a relevant claim for the purposes of s 22: at [81]-​[82]. Thus, in approaching the question whether an accused’s claim comes within s 22 or is merely a claim to be immune from prosecution, or that they were merely ignorant of the law, the claim needs to be characterised on the available evidence.To come within s 22, it needs to be, essentially, a claim “in or to” property. It will not be this if their claim was, in essence, a claim about the law –​that they were immune from prosecution. A claim derived from another’s claim [13.110] 

It is clear that an accused may claim a right which they believed was derived from another person’s claim of right with respect to property. Thus, if a third party could claim a right within the meaning of s 22, then an accused is entitled to claim such a right if they honestly believed they were acting on behalf of, or as an agent of, the person with whom the right resided: R v Waine [2006] 1 Qd R 458; [2005] QCA 312 at [29], [32]; R v Jeffrey (2002) 136 A Crim R 7; [2002] QCA 429 at 12-​13 (Crim R), [21]-​[23]; Mueller v Vigilante (2007) 177 A Crim R 506.

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Composite offences [13.120] 

Where an offence has more than one distinct component –​ for example, robbery (stealing and violence) or housebreaking or burglary (entering premises and committing or intending to commit an offence) –​an accused may assert a claim of right with respect to one of the components even though they cannot rely on a s  22 defence with respect to the other component. In R v Williams (1986) 21 A Crim R 460 at 466-​467, 474-​475, the accused relied on a claim of right in relation to entering a house without consent, but the defence had no application to the alleged assault while inside the house. In R v Jeffrey (2002) 136 A Crim R 7; [2002] QCA 429, the accused relied on a claim of right in relation to stealing money but the defence had no application to the violence that accompanied the theft. Element: Without an intention to defraud [13.130] 

If there is evidence of an honest claim, then further evidence of no intention to defraud is not required. Similarly, note the point made in Roberts v Western Australia (2005) 29 WAR 445; [2005] WASCA 37 at [35], [165] to the effect that if the offence the accused is charged with (in that case, the offence of forgery and uttering in CCWA, s 473) includes an element of “intent to defraud”, then there will be no place for the operation of a defence under s 22. This is because s 22 requires evidence that the accused had no intention to defraud, but the prosecution has an analytically prior obligation to prove beyond reasonable doubt that there was an intention to defraud, as an element of the offence. See also Perrin v R [2017] QCA 194 at [76], [90]; Orchard v R [2018] QCA 58 at [23]-​[43]. Note that stealing under CCQ, s 398; CCWA, s 378 does not preclude an accused relying on s 22, despite the requirement in s 398; 378 to prove an accused “fraudulently” took or converted property. This requirement to prove fraudulent intent is defined narrowly in CCQ, s 391(2); CCWA, s 371(2). For example, a person acted with a fraudulent intent for the purposes of stealing if they intended to “permanently deprive the owner of … property” (CCWA, s 371(2)(a); CCQ, s 391(2)(a)). This means the accused may have taken property with this intent (and therefore have acted fraudulently), yet have acted in pursuance of an honest claim of right to the property. See Martincic v The State of Western Australia [2019] WASCA 134 at [47]-​[65]; Harwood v The State of Western Australia [2016] WASCA 8.

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Queensland: Contravention of a statutory instrument Another exception to the general rule [13.140] 

According to CCQ, s 22(3):

A person is not criminally responsible for an act or omission done or made in contravention of a statutory instrument if, at the time of doing or making it, the statutory instrument was not known to the person and had not been published or otherwise reasonably made available or known to the public or those persons likely to be affected by it.

Thus, ignorance of the law is an excuse in this limited circumstance where a statutory instrument has not been published or reasonably made available. “Publish” is defined in s 22(4) by reference to Statutory Instruments Act 1992, s 47 and means to publish or notify in the Gazette.

[13.150] 

It was suggested above that the defence in s 22 is best thought of as a “claim of right to property”, rather than as a “mistake”.The defence in s 24, on the other hand, is concerned with a mistake –​that is, the accused thought reality was configured one way but in fact it was not.The defence is not limited, as s 22 is, to property. It is limited only insofar as it must be a mistake as to a “state of things”. Section 24 comes very close to what we think of as a mistake in ordinary language: “I thought what I saw in the dim light was a knife (and now I know it wasn’t)”;“I thought she was consenting to sex (and now I know she didn’t)”.The terms of s 24 in both the CCQ and CCWA are, in substance, exactly the same (CCQ text appears in italics; CCWA text in brackets):

(1) 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] the person believed to exist.



(2) The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.

The defence falls within the general rule of Woolmington v DPP [1935] AC 462 so the legal (or persuasive) onus remains with the prosecution. The accused has only the evidentiary burden. (See also R v Singh [2012] QCA 130 at [22]-​[24].) Section  24 appears in Ch  V of the Codes and so may apply to any offence created by statute in the State, whether in the Code or in any other Queensland or Western Australian Act: CCQ; CCWA, s 36.

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Section 24

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Element: A person GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183, the question arose whether a corporation could be a “person” within the meaning of s  24. Coles supermarket, a corporation, was charged under Health Act 1911 (WA), s 220 for selling food contaminated with rodent faeces and hair. It was held by the Western Australian Court of Appeal that a corporation could be a person for the purposes of s 24. Section 5 of the Interpretation Act 1984 (WA) declares a “person” to include a corporation and so s 24 of the Code should also be taken to do so. Burt CJ expressed some reservation about this reasoning because it implies that the enactment of Interpretation Act 1918, s 5, which brought a corporation within the meaning of “person”, also, impliedly, amended CCWA, s 24, even though Interpretation Act 1918, s 5 was enacted after CCWA, s 24 was enacted. However, Burt CJ did not persist with this reservation and it is now a settled principle that a “person” in s 24 includes a corporation: at 185-​186. [13.160] In

Element: Belief Pearce v Stanton [1984] WAR 359 (Pearce v Stanton) stands for the principle that the “belief ” in s 24 must be a positive belief –​that is, a person must have put their mind to the question or adverted to a matter. Ignorance, or simply not having turned their mind to a question, does not amount to a belief. In Pearce v Stanton, the accused was charged under the Fisheries Act 1905 (WA) of possessing undersized crayfish.The accused did not measure the crays; his deckhand did.While it was argued by the prosecution that the accused was just ignorant of the size of the crays. It was held that a positive belief and not mere ignorance is required but that in this case there was evidence of such a belief. It was not necessary for the accused to have measured the crays himself to have a positive belief about their size. If he had required the deckhand to measure the fish and had a positive belief that the deckhand had done that accurately, then his belief came within that required by s 24: at 363; see also GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183 at 188. [13.170] 

Element: A “reasonable” mistake [13.180] 

It is clear from the terms of s 24 that the accused’s belief must not only have been honestly held but must also have been reasonable, see, for example, Narkle v The State of Western Australia [2011] WASCA 160 at [39]-​ [48]; Higgins v The State of Western Australia [2016] WASCA 142 at [81]-​[82];

R v Makary [2018] QCA 257 at [85]-​[89], [165]. Therefore (unlike for s 22), an objective inquiry, as well as a subjective inquiry, must be made. It has been held that a “reasonable belief ” is a belief held on reasonable grounds rather than the more stringent requirement of a belief that would have been held by a reasonable person: R v Mrzljak [2005] 1 Qd R 308; [2004] QCA 420; Aubertin v Western Australia (2006) 33 WAR 87; R v Rope [2010] QCA 194; Sims v Elmer [2019] TASSC 21 at [12]. A “reasonable” mistake is one based on an appreciation of the “primary objective fact which is in reason capable of sustaining the belief ”: GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183 at 187-​188 per Burt CJ. Where there is insufficient evidence to meet the evidentiary burden with respect to a claim that the accused made a reasonable mistake within the meaning of s 24, the defence should not be put to the jury. See, for example, R v Makary [2018] QCA 257, where it was held there was no evidence “on which the jury could legitimately have entertained a reasonable doubt about … whether the appellant honestly and reasonably believed the complainant had consented” (at [165]). See also Higgins v The State of Western Australia [2016] WASCA  142. A question that has arisen for consideration is:  Which particular characteristics of an accused can be taken into account when assessing whether the belief they held was reasonable?4 It is clear that intoxication cannot be taken into account: Daniels v The Queen (1989) 1 WAR 435 at 445; R v Mrzljak [2005] 1 Qd R 308; [2004] QCA 420 (R v Mrzljak); Aubertin v Western Australia (2006) 33 WAR 87. Language difficulty and mental impairment may be taken into account:  R v Mrzljak at [79]-​[81], [89]-​[93]. In Aubertin v Western Australia at [41]-​[48], McLure J, with whom Roberts-​Smith and Buss JJA agreed, formulated a general approach –​that is, those characteristics of the accused that are capable of affecting her or his perception of the circumstances should be taken into account. This includes 4

There has been extensive judicial and extra-​judicial discussion of this question in the context of the defence of provocation –​which characteristics of the accused can be taken into account when assessing whether an ordinary person would have been likely to respond as the accused did? See, for example, Stingel v The Queen (1990) 171 CLR 312; Masciantonio v The Queen (1995) 183 CLR 58; S Yeo, “Sex, Ethnicity, Power of Self Control and Provocation Revisited” (1996) 18 Sydney Law Review 304; P Easteal and P Papathanasiou, “The “Ordinary Person” in Provocation Law: Is the “Objective” Test Objective?” (1999) 11 Current Issues in Criminal Justice 53; R C Way, “Culture, Religion and the Ordinary Person: An Essay on R v Humaid” (2009) 41 Ottawa Law Review 1. The equivalent question in this context of mistake of fact has arisen more recently. The question involves a complex inquiry about individual responsibility and equality before the law as well as gender, race and other aspects of equality and fairness. It is an inquiry about the definition of an “ordinary” Australian in the assessment of criminal liability.

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those characteristics over which she or he has no control  –​for example, age (in the sense of maturity), gender, ethnicity, physical, intellectual and other disabilities. It does not involve a consideration of cultural, religious or other values because these do not impact on a person’s capacity to perceive primary objective facts or the capacity to process that information. McLure J (at [46]) gave the example of values resulting in extreme views about the manner in which women should dress “from which inferences about consent are purportedly drawn”. Once relevant characteristics are determined, reasonableness should be assessed in light of generally accepted community standards. Element: A “state of things” [13.190] 

The mistaken belief of the accused must be about any “state of things”. A state of things must be a phenomenon that exists and not a future event or consequence. In R v Gould and Barnes [1960] Qd R 283, the accused were convicted of the murder of a young woman. They believed that inserting a substance into her vagina in order to procure an abortion would not harm her. This was a belief as to a consequence not as to a state of things: at 290-​292, 297-​298. Section  24 may have an operation where the prosecution constructs a negligence case by reference to a duty provision.Whether a thing is dangerous for the purposes of the duty created by CCQ, s 289; CCWA, s 266, has been held to be a question about a “state of things” in s 24: R v Pacino (1998) 105 A  Crim R 309. There, Mrs  Chokolich, who was 85  years old, was killed by four dogs owned by Mr  Pacino. There was evidence that during the several months prior to Mrs Chokolich’s death, the dogs had on occasions roamed the neighbourhood and menaced a number of people. However, Mr Pacino’s case was that he did not know the dogs were dangerous. He was convicted of manslaughter after a trial in which the prosecution constructed its case by reference to the duty in CCWA, s  266. That section provides that it is the duty of a person in charge of anything of such a nature that, in the absence of care, the life, safety or health of another person may be endangered, to use reasonable care to avoid such danger. Mr Pacino appealed on the grounds that the question whether the dogs were “of such a nature that, in the absence of care” they would endanger the life, safety or health of another was a question about a “state of things” for the purposes of s 24. The trial judge had excluded this argument on the basis that the duty in CCWA, s 266 arose as a question of law and s 24 did not apply. The Court of Appeal overturned this ruling, holding that the nature of the dogs was a state of things about which a belief could be held: at 319-​320.

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A complex question arises in some cases in respect of whether a mistaken belief is about a state of things or merely about the law. A mistake of law does not come within the concept of a state of things for the purposes of s 24. It was suggested above that it is potentially misleading to think of the defence in s  22 as a defence about a “mistake of law” and to draw a dichotomy between a mistake of law (s  22) and a mistake of fact (s  24). However, at this point in an analysis of s 24, it is appropriate to consider the question of whether a belief on the part of an accused is one of “law or fact”. The clear principle is that a mistake about the former falls outside the operation of s 24. The difficulty arises with the application of this clear principle since, in some cases, it is not immediately obvious what amounts to a mistake of law and what amounts to a mistake of fact, and in some cases, there will be a mistake that is a combination of the two. The case of Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30 provides a striking illustration of what amounts to ignorance of the law and not a mistake as to a state of things. The accused, Mr  Palmer, held a commercial fishing licence. He fished in a prohibited zone and was convicted under the Fish Resources Management Act 1994 (WA). A mandatory penalty was imposed, calculated in part by reference to the value of his catch. The penalty amounted to almost $30,000. Mr  Palmer sought to rely on s 24 on the basis that he had gone twice to the Fisheries Department to seek information about where he could fish pursuant to his licence. The Department did not have current information available, but on his second visit, Mr  Palmer was asked whether he would like to take a copy of the document used by the office he had attended. Mr  Palmer left with this copy believing he had correct information about where he was permitted to fish. Relying on the document, he fished at Quobba Point which was, in reality, in a prohibited zone. The High Court held that this was ignorance of the law and not a mistake about a state of things. The accused did not make any mistake of fact, the court reasoned, that went to an element of the offence. He knew that he was the holder of a commercial fishing licence, that he was in waters near Quobba Point and that he had caught rock lobster. The approach of the court was to require the state of things to be a fact constituting one of the elements of the offence. As Gleeson CJ and Kirby J said (at [10]): “Section 24 applies to mistakes about the elements of the offence, not mistakes about the existence of the law creating the offence.” Further, McHugh J said (at [59]): [W]‌ithout more, a mistaken belief that an activity is lawful or authorised will be a mistaken belief as to a matter of law rather than to a matter of fact. Accordingly, the fact that Mr Palmer’s mistake was induced by the conduct of an employee of Fisheries WA cannot convert what is a mistake of law into a mistake of fact …

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[13.200] 

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[F]or the purposes of s 24 of the Criminal Code, it is irrelevant whether the mistake of law is induced by incorrect information obtained from an official Government body or from any other third party or is induced by any other form of mistaken factual understanding. Thus, in any situation where a person’s mistaken belief as to the legality of an activity is based on mistaken advice, that person would not have a defence under s 24. To find otherwise would expand the scope of the defence in s  24 to an unacceptable extent. It would also undermine the principle that ignorance of the law is no excuse, a principle expressly provided for in s 22 of the Criminal Code.

Thus, if a mistake is one about the law then it is not a mistake as to a state of things. The Western Australian Court of Criminal Appeal applied this principle more recently in Sgarlata v The State of Western Australia [2015] WASCA 215.There the accused was charged under Misuse of Drugs Act 1981 (WA), s 6(1)(c) (MDA) with selling or supplying a prohibited drug, XLR-​11, whose street name was “bombay blue”. Sgarlata wished to rely on CCWA, s 24. He knew the drug mimicked the effect of cannabis and had made efforts to ascertain its chemical composition and whether it was legal to sell this synthetic drug. Moreover, it was no simple matter to determine that XLR-​ 11 was a prohibited drug under the MDA. This involved reading MDA, ss 3 and 4 together with Sch 9 of the Poisons Standard in the Therapeutic Goods Act 1989 (Cth) and the Poisons Act 1964 (WA). Schedule 9 of the Poisons Standard includes ‘synthetic cannobinomimetics’ as a prohibited drug, a class of substances that have certain properties, and XLR-​11 has those properties. However, even if Sgarlata held an honest and reasonable belief, the belief was not about a “state of things”.There the mistake was whether there was a law against selling XLR-​11. Sometimes the courts characterise a mistake as a mixture of law and fact. The approach in this case is to ascertain what is the essential mistake. If that is a mistake as to the law then there is no mistaken belief within the meaning of s 24. In Power v Huffa (1976) 14 SASR 337, Power took part in a demonstration. She was charged under the Police Offences Act 1953 (SA) with not leaving a place when asked to do so by police  –​that is, a “loitering” offence. In her defence, the accused said she did not leave because she believed she had permission from Senator Cavanagh (the then Federal Minister for Aboriginal Affairs) to remain. She had gone to a public phone and rung the Senator who, she believed, had told her she had his authority to remain where she was. Jacobs J said (at 344-​345; see also 356-​ 357) that there were two mistakes inherent in the accused’s belief –​first, that the Senator had said she had authority to stay and, second, that she did have authority to stay. The first of these was a relevant mistake of fact, but the second was a mistake of law. Further, because the second was essential, her

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mistake must be a mistake of law and therefore fell outside of the defence of mistake of fact. To any greater extent than if the real state of things had been such as the person believed to exist If an accused relies successfully on s  24 because they had an honest and reasonable but mistaken belief about a state of things, then their criminal responsibility must be assessed by reference to what they believed existed rather than what did in fact exist. The accused’s belief is substituted for what existed in reality and criminal liability is assessed accordingly. For example, an accused may have honestly and reasonably but mistakenly believed that a person was acting provocatively towards them. This, itself, does not result in the accused’s acquittal, but what the accused believed to be the case must be the basis on which a defence of provocation for an assault is determined.5 In R v Duong [2015] QCA 170, the accused’s mistake concerned a particular element of an offence. In that case, the accused was charged with possession and supply of a dangerous drug pursuant to the Misuse of Drugs Act 1986 (Qld). The indictment particularised the dangerous drug as methylamphetamine, a “Schedule 1” drug. The accused argued on appeal that s 24 should have been put to the jury on the basis of evidence that he believed the substance he possessed was something other than methylamphetamine. The substance he claimed he believed he possessed was classified as a “Schedule 2” dangerous drug. The Queensland Court of Appeal held that this mistake could not provide the basis for a s 24 excuse because the belief was not “innocent”. Douglas J wrote for the Court at [47]: When one applies the language of s 24, namely, that the person ‘is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist’, his belief that he may have been in possession of and supplied some other dangerous drug than the methylamphetamine particularised does not excuse his conduct. That is my view

5

An example is seen in Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65, where the accused raised a defence involving both ss 24 and 25, extraordinary emergency. See, also Williams-​Jones v Miller [2017] WASC 276 and R v Carlton [2018] QCA 294, where a s 24 defence formed part of a defence of self-​defence. Note that the defence in s 24 will be redundant in a number of cases where another, primary, defence requires evidence of an honest and reasonable perception on the part of the accused: see Rogers v Western Australia [2008] WASCA 201 at [25]-​[28].

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[13.210] 

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even if that …. drug was one from a category to which lesser penalties attached. He still remains criminally responsible for possession and supply of a dangerous drug. There has been no ‘operative mistake’ and his belief about the ‘real state of things’ still implicates him in equivalent criminal behaviour, possession and supply of a dangerous drug. (reference omitted)

The rule in s 24 may be excluded by the express or implied provisions of the law relating to the subject [13.220] 

The defence in s 24 may be excluded expressly or by implication. However, where a statute creates an offence and is silent about the defence, s 24 is not excluded: Geraldton Fisherman’s Co-​op v Munro [1963] WAR 129 at 133. Section 24 may be cut down by the operation of another law. For example, the Drugs Misuse Act 1986 (Qld) modified s 24 by reversing the onus of proof: Tabe v The Queen (2005) 225 CLR 418; [2005] HCA 59 at [79], [148]; see also Hutchinson v Western Australia (2003) 144 A Crim R 28; [2003] WASCA 323 at [10], [39]-​[41]; Williams-​Jones v Miller [2017] WASC 276 [37].

Elements toolbox Section 22 [13.230] 

There must be:

1.

An offence relating to property

2.

An act done or omitted to be done with respect to property

3.

Done in the exercise of an honest claim of right

4.

No intention to defraud.

Section 24 There must be: 1.

A person who

2.

Does (or omits to do) an act under an honest and reasonable but mistaken belief

3.

In the existence of a state of things.

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Guide to problem solving [13.240]  Section 22 • If the person has been charged, look at the offence. Does it concern “property” within s 1 of the Codes? If the person has not been charged, what harm have they caused? Does it relate to property? Which offence may they have committed? Does it concern “property” within s 1 of the Codes? • Consider which property the accused could claim an entitlement in or to. Is this property the same as the property the subject of the charge? If not, the defence will fail.

• Consider the property in or about which the accused can claim some kind of right. Is there any doubt in the evidence that the accused actually believed they were entitled to do as they did? If they did not hold the belief honestly, then the defence will fail. • Look carefully at the evidence and characterise (state succinctly) the assertion that the accused makes with respect to that property. Ask whether this claim is in essence “to or in” or about the property in question, or is it a claim that she or he could not be prosecuted. • Has a permit or licence been issued? Did the accused believe that she or he was authorised by that licence or permit to do as they did (she or he has a relevant claim) or did they believe they were not required to have a licence (she or he does not have a relevant claim)? Alternatively, did what the accused believe they were actually doing fall outside the range of activities that required a licence (she or he has a relevant claim)? • Is the offence a composite one? If so, consider whether a s 22 defence could apply to one part of the offence and not the other. Might the accused be convicted of a different offence even if a s 22 defence is successful? • What will the result be for the accused if they are successful in raising this defence? Section 24 • Did the accused believe something at the time of the offence when in fact the real state of things was different? If so, might the difference between what was, and what the accused believed to be the state of things, bear on her or his liability? If so, you should proceed to consider whether the elements of s 24 are satisfied.

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• Consider whether the accused believed they were themselves entitled in some way to the property, or believed that a third party was entitled and that they, the accused, were acting on behalf of the third party. If it is the latter situation, then consider the points about the claim of right in relation to what the accused believed about the third party’s claim of right.

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• Is the accused a corporation? If so, s 24 may apply. Identify the natural person whose belief represents the company’s state of mind. • What did the accused believe? Be precise in formulating this. Consider whether there are reasonable grounds for this belief. Does the accused have characteristics that affected how she or he perceived the situation and came to a mistaken belief? Consider whether these characteristics can be taken into account by reviewing the cases of Daniels v The Queen (1989) 1 WAR 435; R v Mrzljak [2005] 1 Qd R 308; [2004] QCA 420; and Aubertin v Western Australia (2006) 33 WAR 87. • What was the accused’s mistaken belief about? Was it about an existing state of things (relevant belief) or a future consequence (not a relevant belief)? Was it a mistake about a fact (a relevant mistake) or about what the law was (not a relevant mistake)? • If the accused may be successful in raising s 24, what is its effect? Consider the accused’s mistaken belief: if this is assumed to have existed, will the accused be acquitted, or could they be convicted of an alternative offence?

Revision questions 1.

What is the general rule of criminal responsibility in s 22?

2.

Who has the legal (persuasive) burden of proof with respect to the defence in s 22?

3.

Is the purpose with which the accused does an act with respect to property a relevant factor in determining whether the accused’s belief was honest?

4.

Why was the accused in Olsen v Grain Sorghum Marketing Board; Ex parte Olsen [1962] Qd R 580 unable to rely on s 22?

5.

Who has the legal (persuasive) onus when s 24 is raised? What obligation, if any, is on the accused?

6.

Can a company make a mistake within the meaning of s 24?

7.

Give two examples of factors that cannot be taken into account when assessing whether an accused’s mistake was reasonable.

8.

Why, in Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30, did Mr Palmer fail in his seeking to rely on s 24?

Problem questions 1.

Barney owned a farm with his brother Jack. One day Barney picked up Jack’s gun and went out to shoot rabbits. Barney has been charged with using a firearm without a licence under the Firearms Act. Jack is the holder of a non-​transferable licence for the gun. In his statement to police Barney said that he frequently used Jack’s gun: “I know it’s a licensed gun. I thought I was

CHAPTER  13  HONEST CLAIM OF RIGHT TO PROPERTY AND MISTAKE OF FACT     463

allowed to use it too.” Barney has been convicted. Should a defence have been put to the jury on his behalf? Rosie is the manager of a farm that is owned by a company called Dairy Delight Pty Ltd. Rosie allowed workers to work with a herd of cattle that was infected with a serious disease and, as a result, the company has been charged with an offence under the Occupational Health and Safety Act. Further, the farm has a retail premises from which the company sold some cheese wrapped in a plastic that is known to be dangerous. The wrapping emits chemicals that have been linked with serious respiratory illnesses. For this the company has been charged with an offence under the Health Act. Rosie has said it was all a big mistake. She knew the workers were in contact with the diseased animals but she didn’t know there was a risk to humans. And she didn’t know the chemical make-​up of the wrappings for the cheese. Dairy Delights has been convicted of both offences. Should any defence have been put on its behalf?

Answers to revision questions 1.

Ignorance of the law does not afford an excuse unless knowledge of the law by an offender is expressly declared to be an element of the offence.

2.

The prosecution has the legal (persuasive) onus of disproving the elements of the defence.

3.

No. A claim of right is “honest” if the accused in fact believes in their entitlement. The purpose of their act is not relevant: R v Williams (1986) 21 A Crim R 460.

4.

The accused in Olsen v Grain Sorghum Marketing Board; Ex parte Olsen [1962] Qd R 580 was unable to rely on s 22 because the Court characterised his claim as a claim to be immune from prosecution and not a claim of right to or in property.

5.

The prosecution has the legal burden in relation to s 24. The accused has an evidentiary burden only: see Woolmington v DPP [1935] AC 462.

6.

Yes, a company can make a mistake within s 24: GJ Coles Co Ltd v Goldsworthy [1985] WAR 183.

7.

Intoxication and an accused’s religious values that have no bearing on a person’s capacity to perceive primary facts cannot be taken into account when assessing whether the accused’s mistake was reasonable: Aubertin v Western Australia (2006) 33 WAR 87.

8.

Mr Palmer failed in seeking to rely on s 24 because the only mistake he made was a mistake of law. He did not make a mistake about a fact that constituted an element of the offence with which he was charged.

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2.

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Answers to problem questions QUESTION 1 Barney Barney believed he was entitled to use the gun. The defence under s 22 should be considered. The offence in the Firearms Act relates to property because it concerns guns, which come within the definition of “property” in s 1 of the Codes: see Walden v Hensler (1987) 29 A Crim R 85 per Deane, Toohey and Gaudron JJ; Molina v Zaknich (2001) 24 WAR 562. Further, Barney’s act with respect to property was in relation to the property that is the subject of the charge –​that is, the gun: see R v Walsh [1984] 2 Qd R 407. The question arises whether Barney has an honest claim of right. There is no evidence to suggest that Barney did not in fact hold the belief that he was “allowed to use” the gun. But was this claim of a kind recognised in s 22? It is not entirely clear what Barney meant when he said he knew “it’s a licensed gun … I thought I was allowed to use it too.” If he thought, for example, that his name was on the licence and that he was a joint licensee, then he would have a relevant claim of right: Walden v Hensler (1987) 29 A Crim R 85; Interim Advance Corporation v Fazio [2008] WASCA 140. However, if, as seems more likely, Barney believed he was permitted to use the gun even though he didn’t hold a licence (perhaps because he had permission from Jack), then his claim would not come within s 22 and the defence would fail: Olsen v Grain Sorghum Marketing Board [1962] Qd R 580; Interim Advance Corporation v Fazio [2008] WASCA 140. QUESTION 2 Dairy Delight Pty Ltd Dairy Delight Pty Ltd is a “person” within the meaning of s 24: GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183. The knowledge and beliefs of the company should be determined by reference to the knowledge and beliefs of Rosie, the manager: GJ Coles & Co Ltd v Goldsworthy; see also Interim Advance Corporation v Fazio. Rosie said she knew the workers were in contact with the diseased cattle but she didn’t know they posed a risk to human health. There is no evidence that Rosie did not in fact hold the belief she claims and so her belief is honest. Rosie’s belief appears, on the evidence, to be a positive belief and not merely ignorance of the nature of the cows’ disease: see Pearce v Stanton [1984] WAR 359. Whether it is a reasonable belief in the sense that she had reasonable grounds for holding it (see Aubertin) will depend on evidence about the standard of knowledge to be reasonably expected of a commercial dairy farm management: see Aubertin v Western Australia (2006) 33 WAR 87. Rosie’s (and therefore Dairy Delight’s) belief, however, is as to a consequence, and not as to an existing state of things. In R v Gould

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and Barnes [1960] Qd R 283, the accused’s mistaken belief about what effect certain substances would have on a young woman’s health was held not to be a belief within the meaning of s 24. Rosie was not mistaken about the condition of the cows, but about the effect of their disease on the health of the workers. The defence is likely to fail. Offence under the Health Act For the same reasons as discussed above, Dairy Delight Pty Ltd is a person within the meaning of s 24 and Rosie’s beliefs should be assessed to determine liability. Rosie didn’t know the chemical make-​up of the cheese wrappings. Rosie does not have a “belief” within the meaning of s 24. Although the chemical composition of the wrapping is a “state of things”, Rosie was merely ignorant of the make-​up of the wrapping and that is insufficient: Pearce v Stanton [1984] WAR 359; GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183.

Critical thinking questions 1.

Why do you think a claim of right defence is limited to offences relating to property?

2.

Is a claim of right defence necessary where there is an element of specific intent in the offence?

3.

If s 24 can apply to the question of the dangerous nature of a thing for the purposes of the duty in CCQ, s 289; CCWA, s 266, as the court in R v Pacino (1998) 105 A Crim R 309 held, could R v Gould and Barnes [1960] Qd R 283 have been decided differently?

4.

What are the fundamental human rights underpinning the judicial discussion of the concept of a “reasonable” mistake in s 24?

Reading • K Burton, T Crofts, R Martin, T Nisbet and S Tarrant, Criminal Codes: Commentary and Materials (7th ed, Thomson Reuters/​ Lawbook Co., 2018) Ch 11. • K Burton, Criminal Law in Queensland and Western Australia: LexisNexis Questions and Answers Book (LexisNexis, Sydney, 2015) Ch 11.

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The defence is likely to fail.

CHAPTER 14 Attempts Learning outcomes .........................................................................   467 [14.10] Principles............................................................................   468 [14.10] Specific and general attempts.......................................................  468 [14.20] Onus of proof............................................................................  470 [14.30] Intention..................................................................................  471 [14.40] Offence...................................................................................  473 [14.50] “Preparatory acts” vs “Immediately connected acts”...........................  473 [14.80] Manifesting an overt act..............................................................  479 [14.90] Considerations that may reduce the penalty for an attempted offence.....  479 [14.100] Impossibility in fact or law..........................................................  480 [14.110] Elements toolbox..............................................................   481 [14.120] Guide to problem solving..................................................   482 Revision questions .........................................................................   483

Answers to revision questions .......................................................   484 Answer to problem question .........................................................   485 Critical thinking questions .............................................................   488 Readings .........................................................................................   488

Learning outcomes This chapter will enable you to: • Understand who bears the onus of proving an attempt • Identify whether an attempt is general or specific, and the impact this has on interpreting the CCQ and CCWA • Understand the elements of a general attempted offence • Identify the significance of intention in an attempted offence • Apply the last act or step test and the equivocality test to determine whether the accused person has done preparation or committed an attempt • Determine whether the penalty for an attempt should be reduced if the accused person has desisted of their own motion, or if the accused person

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Problem question ...........................................................................   483

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has been prevented from committing the offence by circumstances independent of will • Understand the difference between a factual and a legal impossibility and whether they attract criminal responsibility

PRINCIPLES Specific and general attempts [14.10] 

Substantive offences provided in the CCQ and CCWA may be linked to a specific attempt or a general attempt, as shown in Diagram 14.1. Diagram 14.1: Possible linkages between an offence and an attempt

A specific attempt is explicitly drafted in a Code, and attempted murder is a core example. The substantive offence of “Unlawful homicide”, which is labelled as either murder or manslaughter, is provided in CCQ, s  300; CCWA, s  277 and there is a separate provision for attempted murder in CCQ, s 306, and attempt to unlawfully kill in CCWA, s 283 as follows: Any person who –​

(a) attempts unlawfully to kill another; or

(b) with intent unlawfully to kill another does any act, or omits to do any act which it is the person’s duty to do, such act or omission being of such a nature as to be likely to endanger human life; is guilty of a crime, and is liable to imprisonment for life.1

In some instances, an attempted offence is expressly provided in the same provision as a substantive offence. For example, attempted drink spiking in CCQ, s 316A(1) (emphasis added): A person who administers, or attempts to administer, in drink a substance to another person (the other person) without the other person having knowledge of the 1

Note that the Western Australian provision refers to “his” instead of “the person’s”, but the provision nevertheless applies to both genders in the same manner.

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substance with intent to cause the other person to be stupefied or overpowered is guilty of a crime and is liable to imprisonment for 5 years.2

Another example is found in the case of attempting to strike a person with a projectile with specific intent under CCQ, s 317(f); CCWA, ss 294(1)(a)-​(b) (emphasis added): CCQ, s 317(f): unlawfully strikes, or attempts in any way to strike, any person with any kind of projectile or anything else capable of achieving the intention is guilty of a crime, and is liable to imprisonment for life. CCWA, ss 294(1)(a): unlawfully wounds or does any grievous bodily harm to any person by any means whatever; or CCWA, ss 294(1)(b): unlawfully attempts in any manner to strike any person with any kind of projectile is guilty of a crime, and is liable to imprisonment for 20 years.

Unlike a specific attempt, a general attempt is not specifically provided in either the CCQ or the CCWA. An example of a general attempt is attempted stealing where stealing is the substantive offence under CCQ, s 398; CCWA, s 378, but there is no express provision for attempted stealing. Diagram 14.2 identifies this linkage. Regardless of whether an attempt is a general or specific attempt, the definition of “attempt” in CCQ; CCWA, s 4 will apply.

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Diagram 14.2: Linkage between a specific attempt without an equivalent offence

Note that it is not possible for a substantive offence to have both a specific and a general attempt, but rather one or the other. In the context of duties and criminal negligence, pursuant to CCQ, s 328; CCWA, s 304(1), the attempt is actually the offence, but succeeding is not an offence. Attempting to fulfil a duty may constitute criminal negligence, if the attempt was not reasonable, or did not demonstrate reasonable care or reasonable precaution. In this scenario, the attempt will constitute a breach of a duty. However, if the person succeeds in fulfilling their duty, or at least made a reasonable attempt to fulfil their duty, they are not criminally 2

Contrast the position in Western Australia where intoxication by deception is a substantive offence pursuant to CCWA, s 305A, and attempted intoxication by deception is a general attempt. Note that the offence in CCWA, s 305A has different elements to those in CCQ, s 316A.

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negligent. In these situations, the definition of “attempt” in CCQ; CCWA, s 4 does not apply. Where a person has been accused of breaching a duty, the accused may be held liable for causing the consequences of the breach, so they are likely to be charged with another offence, depending on how the victim was injured. This may include grievous bodily harm, unlawful wounding, assault occasioning bodily harm, assault or death.

Onus of proof [14.20] 

The prosecution must prove beyond a reasonable doubt the elements of the definition of “attempt” in CCQ; CCWA, s 4: R v Barbeler [1977] Qd R 80 at 83 per Douglas J. Even though the definition of “attempt” in both Queensland and Western Australia contains the element of failure to fulfil the intention of committing the offence, it is not an element of proof for the prosecution.3 The purpose of this element has been judicially considered, such that if an accused person is charged with a substantive offence and the jury takes the view that the substantive offence has not been proved beyond a reasonable doubt, the jury then considers an attempt as an alternative by proceeding through the elements of attempt listed in Table 14.1: R v Barbeler [1977] Qd R 80 at 83-​84; see also CCQ, ss 583-​584; CCWA, s 10D. The defence does not bear the legal or evidential burden of proving the elements of an attempt: Woolmington v DPP [1935] AC 462 at 482, where Viscount Sankey LC stated: Just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his [or her] guilt. In either case, he [or she] is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his [or her] innocence and it is sufficient for him [or her] to raise a doubt as to his [or her] guilt; he [or she] is not bound to satisfy the jury of his [or her] innocence … 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 … 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.

However, the defence may bear the discretionary tactical evidentiary burden. This means the defence has the discretion to call evidence to counter the evidence raised by the prosecution, and reduce their risk of losing the case. 3

Note that this additional element is included in the Elements toolbox at [14.110].

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The defence should want to reduce the risk that the trier of fact (judge or jury) draws sufficiently strong inferences for the prosecution to satisfy their legal (persuasive) standard of proof: Strong v Woolworths Ltd (2012) 246 CLR 182 at [53] per Heydon J. Thus, the prosecution bears the legal and evidential burden of proving the elements of attempt, which are listed in Table 14.1. Table 14.1: Elements of attempt to be proved by the prosecution Queensland

Western Australia

1.

Intent to commit an offence.

1.

Intent to commit an offence.

2.

Execution of intention by means adapted to the fulfilment of that intention.

2.  

3.

An overt act manifesting the intention.

Execution of intention by an act that is more than merely preparatory.  

Intention If an accused person has the intention to commit an offence and does nothing further, there is no attempt because intention by itself is insufficient: CCQ; CCWA, s 4. For example, just preparing and having possession of price tags showing an illegal price, and the intention to fix them to an item was ruled to be insufficient and too remote to constitute an attempt. However, if the price tags in question were affixed to the item, by the accused or someone else, that would constitute an act immediately connected with the offence, therefore, an attempt: Hope v Brown [1954] 1 All ER 330 at 331-​332 per Lord Goddard CJ. Many offences in the CCQ and CCWA do not contain intention as an element; nevertheless, an attempt at such offences, irrespective of whether it is a general or specific attempt, requires intention: CCQ; CCWA, s 4; see also Hope v Brown [1954] 1 All ER 330. For example, while the substantive offences of rape in CCQ, s 349 and sexual penetration without consent in CCWA, s 325 do not include intent, the element of intent is imported into these attempts by virtue of CCQ, ss 4 and 350 Attempt to commit rape; CCWA, s 4. In the High Court of Australia, Brennan J has stated in He Kaw Teh v The Queen (1985) 157 CLR 523 at 569 that “intention” means: “a decision to bring about a situation so far as is possible to do so –​to bring about an act of a particular kind or a particular result”. Proving intent was discussed by Kiefel, Bell and Keane  JJ in Zaburoni v R (2016) 256 CLR 482 (Zaburoni v R). An inference of intention may be supported by evidence of the accused’s foresight, knowledge and

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[14.30] 

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understanding of the risk and probability of the consequence, malice towards the victim and the frequency and duration of the harmful act: at [10]-​[11]. However, specific intent requires more than just foresight that the consequence was possible, probable or even certain. To prove specific intent, the prosecution must establish that the accused “meant to produce the particular result”: Zaburoni v R at [14]-​[15]. Foresight of the result and other supporting evidence is ultimately subject to a rational alternative purpose for the act. For example, enhanced sexual pleasure being a rational alternative purpose for a HIV infected accused having unprotected sex, as opposed to the accused intending to infect other people: Zaburoni v R at [44]. To prove intention, the prosecutor does not need to prove desire, intention can exist without desire. The prosecution only needs to prove that the consequence was in the mind of the accused and apprehended by the accused as highly probable. Intention must be established on all the evidence of the case, not just on the accused’s omissions or denials, the accused’s actions must also be considered: R v Willmott (No 2) [1985] 2 Qd R 413 at 415-​416 per DM Campbell J, at 418 per Connolly J. In Cutter v The Queen (1997) 94 A Crim R 152; [1997] HCA 7 at 165-​166 (A Crim R), Kirby J states that “desire” should be distinguished from “intent”, and that the concept of “intent” should not be defined: It is important to draw a distinction between the intention of the accused and his or her motives, desires, wishes or hopes in doing the act alleged to constitute the crime charged. Attempts have been made to define the meaning of “intent” or its derivatives. However, the better view is that the word, being one of ordinary acceptation, should not be defined but should be left to the trier of fact without elaboration as to its meaning. The only exception is a case where some element in the evidence suggests the need for elucidation, so as to draw the distinction between intention, on the one hand, and the accused’s motives, desires, wishes, hopes, reasons or expectations, on the other. Clearly enough, where there is no direct evidence to which the trier of fact can safely resort, so as to draw an inference as to the “subjective” intention of the accused, the principal focus of attention will ordinarily be the facts surrounding the alleged offence. Windeyer J explained why this was so in his reasons in Parker v The Queen: In every case where intent is in question the question is what did the accused … intend. Of that, the acts he did may well provide the most cogent evidence. In some cases the evidence that the acts provide may be so strong as to compel an inference of what his intent was, no matter what he may say about it afterwards. If the immediate consequence of an act is obvious and inevitable, the intentional doing of the act imports an intention to produce the consequence. Thus to suppose that a sane man who wilfully cuts another man’s throat does not intend to do him harm would be absurd. A sane man who intentionally belabours another with a knuckle-​duster while he is lying helpless on the ground and then stabs

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him with a knife, cutting his throat, cannot rationally be said not to have meant to do him grievous bodily harm at the least. Moreover, it might well be thought that such deeds must have been done with a reckless indifference to human life.

In the absence of an accused person’s express intent, the court will consider the acts done by the accused person and the consequences of those acts, to determine whether the element of “intent” is satisfied for the purposes of an attempt in CCQ; CCWA, s 4.

Offence [14.40] 

The prosecution must prove that the accused person has the intention of committing an offence. The notion of “offence” is defined in CCQ; CCWA, s 2 as “[a]‌n act or omission which renders the person doing the act or making the omission liable to punishment.” Generally, an accused person who commits an attempt does an act, rather than an omission.This is further reinforced in Queensland where a prosecutor must prove that the accused person has done an overt act manifesting the intention, which is an element of the definition of “attempt”: CCQ, s 4.

[14.50] 

When making submissions, the prosecution must show that an attempt has occurred rather than a merely preparatory act. Queensland [14.60] 

In Queensland, the definition of “attempt” in CCQ, s  4 does not expressly refer to either preparatory acts or immediately connected acts. The definition uses the expression “by means adapted to its fulfilment”, which has been consistently interpreted to mean an act immediately connected with the fulfilment of their intentions. Merely preparatory acts have been ruled as insufficient to constitute an attempt in Queensland:  R v Chellingworth [1954] QWN 35 at 42 per Sheehy J; R v Edwards [1956] QWN 16 at 23 per Bradford  AJ. Thus, the issue becomes how to distinguish immediately connected acts from preparatory acts. Last act test “last act test” was first developed and applied by Parke B in R v Eagleton (1855) 169 ER 766. The case affirmed that the act of receiving

[14.63] The

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“Preparatory acts” vs “Immediately connected acts”

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credit for a sale by false pretences (credit for underweight loaves of bread) was the last act necessary on behalf of defendant to commit the offence of obtaining money by false pretences. The defendant’s acts remotely leading towards the commission of the offence were considered to be merely preparatory acts, therefore, they were not considered as attempts. However, receiving credit was an act immediately connected with the fulfilment of the substantive offence, therefore, the defendant was found guilty of an attempt to obtain money by false pretences. This test has been applied in the cases of R v Chellingworth and R v Edwards. Each will be discussed in turn. In R v Chellingworth, an accused person had been charged with attempted arson. He threatened to burn down the house; was found in possession of a half-​empty tin of petrol and had poured petrol over the walls, floors and bags inside the house. In this case, Sheehy J stated that the accused person’s conduct was merely preparatory and did not amount to an attempt because he had not tried to strike a match. In particular, his Honour stated (at 42): If he set fire to those bags, you would have an attempt straight away. That would be manifesting an intention to set fire to the building, if they were in proximity to the dwelling-​house itself.

Arson, pursuant to CCQ, s 461, expressly states the particular objects and items that are elements of the offence, such as a building, structure or motor vehicle, but not just generic bags. That is why setting fire to the bags in the building would only constitute attempted arson, whereas setting fire to the walls and floors of the building would actually constitute arson. Therefore, with the petrol on the walls and floor, striking a match or a lighter would have been the last act or step immediately connected with setting fire to the walls and floors and committing arson. Had the accused person done so, he could have been charged with attempted arson. Adopting the last act or step test favours the accused person because they may have completed many preparatory steps leading up to the last step, such as buying the petrol, going to the building, splashing the petrol around, but they have only not completed the last act or step. In such a case, they cannot be charged with the substantive offence and their conduct will be interpreted as merely preparatory. Thus, the key weakness of the last act or step test is that it ignores any of the complex and/​or numerous steps leading up to the last step and only allows very little room for an attempt. On very different facts, the last act test was also applied two years later in R v Edwards. In this case, the accused person was charged with attempting to have carnal knowledge of an animal when he had been disturbed while

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standing on a 44-​gallon drum behind a bay mare (horse) with his pants down around his ankles. Bradford AJ held that the accused person’s conduct was merely preparatory, rather than an attempt. In R v Williams [1965] Qd R 86 at 101-​102, Stable  J recognised the weakness in the last act test and agreed with Salmond J in R v Barker [1924] NZLR 865 at 874, that the authorities do not provide clear guidance on how to distinguish a merely preparatory act from an attempt. However, what is certain is that: Although the test adopted by Parke B [last act test] has been rejected, no definite substitute has been formulated. [T]‌he first step along the way of criminal intent is not necessarily sufficient and the final step is not necessarily required.The dividing line between preparation and attempt is to be found somewhere between these two extremes.

Dr Glanville Williams also criticised the last act test and its application in R v Chellingworth in his Criminal Law, The General Part, 2nd ed., 625 [201]: With a ruling of this kind the law of attempt is left practically without operation, for either the conduct of the accused amounts to mere preparation or the offence is consummated; the period of ‘attempt’ which comes between is so brief that it is hardly practicable for the police to wait for it before making the arrest.

[14.65] 

To establish the dividing line between mere preparation and an attempt, Salmond J developed and later expressed the equivocality test in R v Barker [1924] NZLR 865 at 870: An act done with intent to commit a crime is not a criminal attempt unless it is of such a nature as to be itself sufficient evidence of the criminal intent with which it is done. That a man’s [or woman’s] unfulfilled criminal purposes [attempts] should be punishable, they must be manifested not by his [or her] words merely, or by acts which are in themselves of innocent or ambiguous significance, but by overt acts which are sufficient in themselves to declare and proclaim the guilty purpose with which they are done.

The equivocality test requires the court to consider whether there is any ambiguity in the accused’s conduct. It must be obvious that the accused person’s conduct was aimed at the commission of the offence, and this is determined on a case-​by-​case basis. In Nicholson vThe Queen (1994) 76 A Crim R 187 at 190, 192, Underwood J stated that the equivocality test is not the only test for distinguishing an attempt from mere preparation. However, it may be a useful guide, in some

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Equivocality test

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cases, in evaluating when the acts of the accused person passed from being merely preparatory acts to acts that constitute an attempt.4 In R v De Silva (2007) 176 A Crim R 238 at [29], Holmes JA questioned “how an intention to commit a crime can be manifested by an overt act which is equivocal”, essentially highlighting that an intentional overt act is never ambiguous by definition. Holmes JA cast doubt on the usefulness of the equivocality test in Queensland. Therefore, Holmes JA suggested that the test formulated by Norval [reasonable step test] may be more apposite and appropriate in Queensland. Norval’s reasonable step test reasonable step test was first suggested by Dr Norval Morris in (1955) Crim. LR, at p 293, and was adopted by Stable J in R v Williams [1965] Qd R 86 at 100: [14.68] The

[T]‌he actus reus necessary to constitute an attempt is regarded as complete if the prisoner does an act which is a step towards the commission of the specific crime and that act cannot reasonably be regarded as having any other purpose than the commission of that specific crime.5

Stable J also criticised the application of the last act test and the decisions in R v Chellingworth (1954) QWN 35 and R v Edwards (1956) QWN 16, and distinguished them from the present case: R v Williams [1965] Qd R 86 at 98-​100, Wanstall J agreeing at 95. In the same case, Hanger J determined that in the face of all the evidence, any argument that there was no sufficient proof of an attempted rape was untenable. The evidence included the accused carrying out a violent attack calculated to overcome the victim’s resistance, stripping the victim naked and verbal statements during the attack of the accused’s intentions (“I am going to have you whether you like it or not”): R v Williams [1965] Qd R 86 at 91-​92, Wanstall J agreeing at 95. The Norval’s reasonable step test was assumed to have been developed from the judgement by Mann  ACJ in R v Page [1933] VLR 351, where two persons were involved in a shop-​breaking enterprise (at 353): 4

R v Williams [1965] Qd R 86 at 100. Note that the facts of this case involved a digital rape, which would amount to the substantive offence of rape today rather than attempted rape. Refer to CCQ, s 349 for the elements of rape.

5

Note that this case is a Tasmanian case, which defines the notion of attempt differently to Queensland.

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Mann ACJ determined that the would-​be shop-​breaker’s series of acts still constituted an attempt, even though they changed their minds and decided not to “continue on with the job.” A mere voluntary change of mind is no defence for an attempted offence, the attempt has still been committed. It is not necessary to determine why the accused desisted, it is immaterial whether it was from sudden alarm, from a sense of wrong-​doing, from failure of resolution, or from any other cause. If one or more steps towards commissioning a crime have been completed then there is an attempt: R v Page [1933] VLR 351 at 354-​355. The reasons for desisting being immaterial are expressly stated in the legislation: CCQ, s 4(2); CCWA, s 4. In the judgement Mann ACJ cited R v Taylor [I859] 1 F & F 511; R v Robinson [1915] 113 LT 379; and R v Waugh [I909] VLR 379:  R v Page [1933] VLR 351 at 383. Under Norval’s reasonable step test, if the act has no other reasonable explanation than as a step in the commission of a specific crime, then the act has passed from being a merely preparatory act, to an act that constitutes an attempt. There must be no alternative reasonable innocent explanations for the accused person’s conduct, and this is determined on a case-​by-​case  basis. The Queensland Court of Appeal discussed the equivocality test and the reasonable step test in R v De Silva (2007) 176 A Crim R 238; [2007] QCA 301 at [21], where an accused person was convicted of attempted arson of a dwelling-​house and motor vehicles. In this case, Mr De Silva went to the house disguised, carrying petrol that he had previously stored at his house, and poured the petrol around the carport. When he was disturbed, he fled the scene. The court agreed with Stable  J in R v Williams [1965] Qd R 86, at 98-​100, by agreeing with the criticism of the last act test and the decisions in R v Chellingworth (1954) QWN 35 and R v Edwards (1956) QWN 16: at [18], [21]. The Court also distinguished those cases from the present case, indicating that there was a factual difference to R v Chellingworth, in that Mr De Silva made an admission to a man afterwards that he was about “to light the place up”: at [16].

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The accused kept watch in a lane, while his companion mounted a wall, having armed himself with a lever. Having reached a position where he could open a window, he put the lever under the window-​ledge for the purpose of prising it open, but, before using any force, he decided he would not “continue on with the job.”

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Jerrard JA evaluated the equivocality test at [22]-​[23], but ultimately decided to adopt Norval’s reasonable step test at [27], with Holmes JA agreeing at [29] and Philippides J agreeing at [31]. Consequently Mr De Silva was convicted of attempted arson. Future case law in this area may see the development of further tests to distinguish mere preparation from an attempt. However, widespread adoption of the equivocality test, or a return to the last act test is difficult to envisage. Western Australia [14.70] 

In Western Australia, the definition of “attempt” in CCWA, s 4 explicitly states that more than a merely preparatory act is required to amount to an attempt. The Western Australian Court of Appeal has placed emphasis on the adjective “merely” in “merely preparatory”, and acknowledged that time might inform whether an act is considered preparatory: Weggers v The State of Western Australia [2014] WASCA 57. McLure P stated (at [95]-​[96], emphasis in original): [95] All acts done prior to the act or acts that constitute or are part of the elements of an offence are preparatory in the sense of preliminary or introductory to the acts that are elements of the offence. The adjective “merely” before the word “preparatory” in the Code definition of attempt is an indication that not all preparatory acts are outside the definition. “Merely” preparatory acts are acts that are purely, only, solely or wholly preparatory. The expression “merely preparatory” is also informed by the preceding words “begins to put his intention into execution by doing an act that is more than merely preparatory to the commission of the offence” … Thus the offender must have begun to put his intention into execution which is established by the doing of an act that is more than merely preparatory. A  preparatory act that is part of the execution (that is, carrying out) of the intended offence is within the definition … [96] The line between overt acts that are pre and post commencement of execution may involve nice questions of judgment that will be informed by the closeness of the connection (in time and otherwise) between the preparatory act and the act(s) constituting the intended offence.

There is a fine line between merely preparatory acts and acts that are more than merely preparatory:  Weggers v The State of Western Australia [2014] WASCA 57. In particular, Buss JA stated (at [158]): The distinction between acts that are merely preparatory to the commission of an offence and acts that are more than merely preparatory to its commission, for the purposes of s 4 of the Code, is often, as a matter of fact, imprecise. Each case will turn on its own facts and circumstances but, ordinarily, matters of importance in

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applying the distinction between acts that are merely preparatory and acts that are more than merely preparatory include:

(a) the nature of the completed offence;

(b) the actions which are necessary for carrying out the completed offence;

(c) the nature of the particular acts of the accused that are in question; and

(d) the relative proximity (including in time and place) of the acts in question to those actions that would have been necessary for the successful carrying out of the completed offence.

Manifesting an overt act [14.80] 

In Queensland, the prosecutor must prove that the accused person manifested their intention to commit an offence by an overt act. This requirement of an “overt act” simply reiterates that intention alone is insufficient: Hope v Brown [1954] 1 All ER 330.

Considerations that may reduce the penalty for an attempted offence After proving the elements of an attempt as set out in Table 14.1, submissions on penalty are made. In Queensland, if an accused person attempts to commit a crime, they commit a crime, and if they attempt to commit a misdemeanour, they commit a misdemeanour:  CCQ, s  535. In Western Australia, if an accused person attempts an indictable offence, they commit a crime: CCWA, s 552(1). Pursuant to CCQ, s 4(2); CCWA, s 4, the court will consider the three considerations presented in Diagram 14.3. Diagram 14.3: Considerations that may reduce the penalty for an attempt

In the case of a specific attempt, the maximum penalty is usually the same as for the substantive offence. The maximum penalty for a general attempt is slightly more challenging to determine. Table 14.2 simplifies the process:

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[14.90] 

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Table 14.2: Penalties for general attempts Maximum penalty for a general attempt

CCQ

CCWA

A general attempt at an indictable offence (with a maximum penalty of mandatory life imprisonment) has a maximum penalty of life imprisonment.

s 536(1)

 

A general attempt at an indictable offence (with a maximum penalty of life imprisonment) has a maximum penalty of 14 years’ imprisonment.

s 536(2)

s 552(2)(a)

A general attempt at an indictable offence (with a maximum penalty of less than life imprisonment) has a maximum penalty of half that of the indictable offence.

s 536(3)

s 552(2)(b)

If person desists of their own motion, without circumstances independent of their own will, the penalty for the general attempt is half that of the indictable offence.

s 538(1)

 

If person desists of their own motion, without circumstances independent of their own will, and the penalty for the substantive offence is imprisonment for life, the general attempt is 14 years’ imprisonment.

s 538(2)

 

If person attempts to procure another person to do an act or make an omission, they are liable to the same extent as if the person attempted to do the same act or make the same omission.

s 539(1)

s 556

A general attempt at an indictable offence (that may be dealt with summarily) has a maximum penalty that is the lesser of the indictable offence punishable on summary conviction or half the penalty for the indictable offence punishable on indictment.a

 

s 552(2)

a Note that the summary conviction penalty does not apply to some stealing offences. For more information about these offences, see CCWA, s 426.

Impossibility in fact or law [14.100] 

It is important to distinguish a factual impossibility from a legal impossibility. An attempt at an offence can still be committed even if there is a factual impossibility, but not if there is a legal impossibility. Thus, an argument that there is a legal impossibility favours the defence, and a factual impossibility favours the prosecution. The principles of factual impossibility and legal impossibility are mutually exclusive. A legal impossibility occurs when an accused person has tried to do an act that is not an offence in the Code. For example, if a person thought that growing a certain type of plant was prohibited by the criminal law and they bought seeds to grow the plant, it would not be an offence because there is no offence or attempted offence for this conduct in the Code. In contrast, a factual impossibility occurs when an accused person tries to commit an offence that is known to the Code but is unsuccessful in completing it because they are, for example, incompetent or inefficient: CCQ, s 4(3); CCWA, s 4. The following are examples of factual impossibilities: • Attempting to import cannabis (that was instead procaine) in the false bottom of a suitcase is still an attempted crime: Britten v Alpogut (1986) 23 A Crim

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R 254. The vital thing seized on by common law as justifying proscription in the case of attempts is evil/​guilty intention, not whether or not the crime attempted was actually impossible to commit. Impossibility is irrelevant, unless the intended crime is not known to the law [legal impossibility] so is not a crime at all: at 259, 264 per Murphy J, Fullagar J agreeing at 225; • Adding a non-​lethal dose of cyanide to the mother’s lemonade, with the intention of delivering multiple doses over a longer period to eventually poison his mother. However, the mother died of an unrelated heart attack before the cyanide took take effect. The defendant was still convicted of attempted murder: R v White [1910] 2 KB 124. Even though the poison ended up playing no role in the mother’s death, the defendant still had an evil/​guilty intention and took steps towards the fulfilment of that intention. However, the defendant could not be charged with murder because the heart attack broke the chain of causation at the “But for” test; • Prisoners trying to open a cell window with weak jemmy in an attempt to escape:  see example referred to by Turner  J in R v Donnelly [1970] NZLR 980 at 990-​991; and

These examples are factual, not legal impossibilities because importing cannabis, murder, breaking and entering, and stealing are offences known to the criminal law. The following is an example of a legal impossibility: • Attempting to receive a stolen car that was not stolen, the car never actually had the status of stolen property, it had remained in the possession of the owner at all times: English v R (1993) 68 A Crim R 96. Franklyn J makes the argument that a legal impossibility and a factual impossibility are the same thing, because an impossibility in law is a conclusion of law which arises out of the facts. Argued that no attempt committed because the intended offence was a legal impossibility: at 99, Scott J agreeing at 109. Murray J was dissenting and agreed with the reasoning in Britten v Alpogut (1986) 23 A Crim R 254 at 107.

Elements toolbox [14.110] 

1.

In Queensland, the elements of an attempt in CCQ, s 4 are:

Intent to commit an offence

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• Intending to steal a diamond ring that had already been removed by the owner and taken safely to the bank: see example referred to by Turner J in R v Donnelly [1970] NZLR 980 at 990-​991.

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2.

Execution of intention by means adapted to the fulfilment of that intention

3.

An overt act manifesting the intention

4.

Failure to fulfil the intention of committing the offence.

In Western Australia, the elements of an attempt in CCWA, s 4 are: 1.

Intent to commit an offence

2.

Execution of intention by an act that is more than merely preparatory

3.

Failure to fulfil the intention of committing the offence.

In Queensland and Western Australia, the qualifications that are relevant to determining the appropriate penalty in CCQ, s 4(2) and (3); CCWA, s 4 are whether: 1.

The accused person desisted of their own motion

2.

There were circumstances independent of the accused person’s own will

3.

It was impossible in fact to commit the offence.

Guide to problem solving [14.120] Note that the issues below arise in both jurisdictions unless expressly stated otherwise. • Is the attempt a specific or general attempt? • Does the accused person have the intention of committing an offence?

– What does “intention” mean?



– What does “offence” mean?

• Queensland: Did the accused person put her or his intention into execution by means adapted to its fulfilment? • Western Australia: Did the accused person begin to put her or his intention into execution by doing an act that is more than merely preparatory to the commission of the offence? • Queensland: Did the accused person manifest her or his intention by some overt act? • Did the accused person fail to fulfil her or his intention to commit the offence? • Is it material that the accused person did not complete the offence because they desisted of their own motion?

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• Is it material that the accused person was prevented from completing the offence by circumstances independent of their own will? • Is it material that the accused person was prevented from completing the offence because it was impossible in fact?

Revision questions What is the attempts?

difference

between

general

and

specific

2.

When is the definition of attempt in CCQ; CCWA, s 4 relevant?

3.

Why is the last act test inadequate as a means of determining whether an accused person has committed an attempted offence or merely a preparatory act towards the commission of an offence?

4.

Why is the equivocality test inadequate as a means of determining whether an accused person has committed an attempted offence or merely a preparatory act towards the commission of an offence?

5.

What are the strengths of Norval’s reasonable step test?

6.

In a problem question on attempts, what should you do after applying the elements of an attempt to the factual scenario?

Problem question Summer and Autumn had a fallout over importing drugs and, as a result, Summer stabbed Autumn several times in the chest and lifted her into the boot of a stolen car. Summer drove the stolen car to the local rubbish tip, leaving Autumn inside the boot. Several hours later, Winter who was supposed to meet Autumn for brunch, became quite concerned when Autumn did not turn up, and went to the house where Summer and Autumn lived. Winter noticed a trail of blood leading from the driveway into the house, and confronted Summer about it. After some time and heated discussions, Summer admitted to Winter what she had done to Autumn. Winter raced to the local rubbish tip, located the car and contacted paramedics. Autumn was barely breathing by the time the ambulance arrived, but the paramedics managed to revive her. Discuss whether Summer has committed attempted murder.

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1.

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Answers to revision questions 1.

A specific attempt is explicitly written into a Code –​for example, attempted murder in CCQ, s 306; CCWA, s 283. In contrast, a general attempt is not as transparent and requires an offence in the Code, which is read in conjunction with the definition of “attempt” in CCQ; CCWA, s 4.

2.

The definition of “attempt” in CCQ; CCWA, s 4 applies to both general attempts and specific attempts. Note that the definition of “attempt” does not apply if the unusual situation arises where there is an attempted offence in the Code, but no equivalent offence in the Code. Two examples of this uncommon scenario are CCQ, s 317, relating to unlawfully attempting to strike a person with a projectile with intent to resist arrest, and CCWA, s 456 regarding attempting to injure mines.

3.

The last act or step test blurs the boundaries between an attempt and an offence to the extent that if the accused person completed the last act or step, there would be no room for an attempt because they would have committed an offence. The last act or step test ignores any of the complex and/​or numerous steps leading up to the last step. The last act or step test was applied in earlier cases –​for example, R v Chellingworth [1954] QWN 35 and R v Edwards [1956] QWN 16. The last act test was criticised in R v Williams [1965] Qd R 86 at 101-​ 102 per Stable J, and by Dr Glanville Williams in his Criminal Law, The General Part, 2nd ed., 625 [201].

4.

In Nicholson v The Queen (1994) 76 A Crim R 187 at 190, 192, Underwood J stated that the equivocality test is not the only test for distinguishing an attempt from mere preparation. However, it may be a useful guide, in some cases. The usefulness of the equivocality test was questioned by Holmes JA in R v De Silva (2007) 176 A Crim R 238 at [29]. Holmes JA questioned “how an intention to commit a crime can be manifested by an overt act which is equivocal”, essentially highlighting that an intentional overt act is never ambiguous by definition.

5.

The Norval’s reasonable step test, is a lot more practical to apply, it does not require the last act, therefore, it does not ignore any of the significant steps taken by the accused leading towards commissioning a crime. Under Norval’s reasonable step test, if the act has no other reasonable explanation than as a step in the commission of a specific crime, then the act has passed from being merely preparatory acts, to acts that constitute an attempt. There must be no alternative reasonable innocent explanations for the accused person’s conduct, and this is determined on a case-​by-​case basis. This test has developed by Dr Norval Morris in (1955) Crim. LR, at p 293, from the decision in R v Page [1933] VLR 351, and has

CHAPTER  14  ATTEMPTS      485

been applied in R v Williams [1965] Qd R 86 and R v De Silva (2007) 176 A Crim R 238. 6.

Determine the penalty for the attempt, including whether it should be reduced for desisting of own motion, circumstances independent of will and impossibility in fact. It is a common error for students to overlook these qualifications.

Answer to problem question In answering the problem question, the following issues will need to be raised. Is attempted murder a specific or general attempt? Attempted murder is a specific attempt because it is specifically provided in the criminal law under CCQ, s 306; CCWA, s 283. The elements of CCQ; CCWA, s 4 must be applied. Does Summer have the intention of committing the offence of murder?

In Cutter v The Queen (1997) 94 A Crim R 152; [1997] HCA 7, a case where a man attempted to unlawfully stab a police officer, Brennan CJ and Dawson J stated at 157-​8 that it “is one thing to fight and wound and to resist the application of physical force that is resented; it is another to intend to take the life of one of those who is seen as applying the resented force”. It is the intention to unlawfully kill that is critical to an attempted unlawful killing. • What does “intention” mean? In the High Court of Australia, Brennan J stated that “intention” means “a decision to bring about a situation so far as is possible to do so –​to bring about an act of a particular kind or a particular result”: He Kaw Teh v The Queen (1985) 157 CLR 523 at 569. • What does “offence” mean? The notion of offence is defined in CCQ; CCWA, s 2 as “[a]‌ n act or omission which renders the person doing the act or making the omission liable to punishment”. Winter may be able to provide evidence of Summer’s intention of committing murder which, as mentioned above, is an offence, based on his conversation with Summer at the house. While Summer told Winter what she had done, we would need more facts about whether Summer told Winter why she stabbed Autumn. Summer’s intention can be inferred from her acts. She stabbed Autumn several times in the chest and left her in the boot of a car at the local rubbish tip.

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Intention by itself is not enough to amount to an attempt at an offence, but it is a necessary starting point, even if intention is not an element of the substantive offence. In this case, intention is an element of both attempted murder and murder.

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She intended to kill or do grievous bodily harm to Autumn, and thus intended to commit murder. Queensland: Did Summer put her intention to murder Autumn into execution by means adapted to its fulfilment? OR Western Australia: Did Summer begin to put her intention of murdering Autumn into execution by doing an act that is more than merely preparatory to the commission of the offence? In both Queensland and Western Australia (despite the different wording of the legislation), the prosecution must prove that Summer has committed an attempt rather than that she has done merely preparatory acts. Summer has gone beyond the first step of criminal intent, but has not completed the last act or step which, in the case of murder, would be unlawfully killing Autumn. Autumn was revived by the paramedics. The last act test, which was applied in R v Chellingworth [1954] QWN 35 and R v Edwards [1956] QWN 16, has been criticised because it leaves very little scope for an “attempt”. The last act test would likely be satisfied on these facts. In R v Chellingworth, the last act before committing arson was determined to be striking the match before actually setting fire to the building. On these facts, the last act by Summer before committing the murder of Autumn, was stabbing Autumn at least once before actually delivering the fatal blow, or the last act may have been stabbing Autumn before leaving her to die. If Autumn had actually died, Summer would have been charged with murder rather than attempted murder. The favoured approach to establishing the dividing line between mere preparation and an attempt is Norval’s reasonable step test as stated in R v Williams [1965] Qd R 86 at 100: [T]‌he actus reus necessary to constitute an attempt is regarded as complete if the prisoner does an act which is a step towards the commission of the specific crime and that act cannot reasonably be regarded as having any other purpose than the commission of that specific crime. Summer stabbed Autumn several times in the chest, put Autumn in the boot of a stolen car and left the stolen car at a rubbish tip. These acts cannot reasonably be regarded as having any purpose other than the murder of Autumn. Queensland: Did Summer manifest her intention of murdering Autumn by some overt act? Summer’s intention of murdering Autumn is insufficient by itself: Hope v Brown [1954] 1 All ER 330. Summer went beyond thinking about what to do to Autumn and she has done a few overt acts. In particular, she stabbed Autumn in the chest several times, put Autumn in the boot of a stolen car, drove the stolen car to a rubbish tip and left the stolen car there. These overt acts manifest Summer’s intention of murdering Autumn.

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Did Summer fail to fulfil her intention of committing the offence? Summer failed to murder Autumn because Winter organised for the paramedics to arrive at the rubbish tip before Autumn died. As a result, the prosecution would charge Summer with attempted murder rather than murder: R v Barbeler [1977] Qd R 80 at 83. Remember that this is not an additional element to be proved by the prosecution, but triggers an attempt as an alternative to a substantive offence where the elements of a substantive offence are not satisfied. Is it material that Summer was prevented from completing the offence by circumstances independent of her own will? Summer was prevented from murdering Autumn because Winter located the car at the rubbish tip and called the paramedics in time to revive Autumn. Where the offence is not completed by circumstances independent of the accused person’s will it is only material with regards to the punishment. Even if the person desists, the person has still committed an attempt. The penalty may be reduced but, as the substantive offence was close to completion, it is unlikely that Summer’s penalty would be reduced by much, if at all.

To establish an “attempt”, it is not necessary to determine why the accused desisted, it is immaterial whether it was from sudden alarm, from a sense of wrong-​doing, from failure of resolution, or from any other cause. If one or more steps towards commissioning a crime have been completed then there is an attempt: R v Page [1933] VLR 351 at 354-​355. Further, the murder was not impossible in fact or law. It was definitely not factually impossible for Summer to kill Autumn, if Winter had not organised for the paramedics to reach Autumn in time, she would have died in the boot of the stolen car. Murder is certainly known to the law, pursuant to CCQ, s 302; CCWA, s 279, so there is no legal impossibility here. Ultimately, Summer would be convicted of attempted murder or attempt to unlawfully kill, which is punishable by a maximum of life imprisonment: CCQ, s 306; CCWA, s 283.6

6

If you applied the provisions in Table 14.2 to this problem, you need to reflect on why your answer is incorrect. Remember that attempted murder is a specific attempt (not a general attempt) and the maximum penalty is specified in the provision.

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Note that Summer did not desist of her own motion. To establish this, perhaps she could have located the stolen car herself and organised for the paramedics to provide assistance to Autumn. Even on these alternative facts, Summer could still be charged with attempted murder, or is likely to be charged with another non-​fatal offence, depending on the extent of the injuries to Autumn.

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Critical thinking questions 1.

Should victimless attempts be criminalised?

2.

How should legislatures determine whether an attempt at novel conduct is a specific or general attempt?

3.

Using examples from either the CCQ or CCWA, are specific attempts more serious than general attempts?

4.

What are the strengths and weaknesses of Norval’s reasonable step test used in Queensland? Can you think of a better alternative?

5.

Is it appropriate to use the same definition of “attempt” for both specific and general attempts, or should the Codes explicitly differentiate these concepts?

6.

Should the penalty for a specific attempt be the same as a general attempt? How should this compare to completing the offence? Are your conclusions consistent with what happens in practice? If not, how are these inconsistencies justified?

7.

Drawing on contextual considerations, why is the definition of “attempt” different in Queensland and Western Australia? How do the different definitions impact on the role of the prosecutor?

Readings • T Crofts, K Burton, R Martin, T Nisbet and S Tarrant, Criminal Codes: Commentary and Materials (7th ed, Thomson Reuters/​ Lawbook Co., 2018) Ch 12. • T Crofts, LexisNexis Study Guide: Criminal Law in Queensland and Western Australia (2nd ed, LexisNexis, Sydney, 2014) Ch 11. • K Burton, LexisNexis Questions and Answers: Criminal Law in Queensland and Western Australia (2nd ed, LexisNexis, Sydney, 2015) Ch 8.

CHAPTER 15 Conspiracies and Parties Learning outcomes .........................................................................   489 [15.10] Principles............................................................................   490 [15.10] Conspiracy...............................................................................  490 [15.30] Parties....................................................................................  495 [15.40] Executor..................................................................................  496 [15.50] Enabler and aider.......................................................................  496 [15.70] Counsellor and procurer..............................................................  501 [15.80] Innocent agent..........................................................................  502 [15.90] Accessory after the fact...............................................................  503 [15.100] Withdrawal of participation........................................................  506 [15.110] In company and criminal organisations.........................................  506 [15.120] Elements toolbox..............................................................   510 [15.130] Guide to problem solving..................................................   514 Revision questions .........................................................................   515 Problem questions .........................................................................   515 Answers to revision questions .......................................................   516 Answers to problem questions ......................................................   517

Readings .........................................................................................   526

Learning outcomes This chapter will enable you to: • Understand the elements the prosecution must prove to establish conspiracy • Distinguish an executor, enabler, aider, counsellor and procurer • Understand whether a participant’s knowledge or foresight is ascertained subjectively or objectively • Determine whether a counsellor is criminally responsible if a different offence is committed or if the offence committed is completed differently to the way it has been counselled

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Critical thinking questions .............................................................   525

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• Identify an accessory after the fact and an innocent agent • Identify merely unexpected incidents and dynamic changes • Determine whether a party has withdrawn from a common purpose

PRINCIPLES Conspiracy [15.10] 

Generally speaking, it is an offence to conspire with another person to commit an offence or to do an act in any part of the world which, if done in Queensland or Western Australia, would be an offence and would also be an offence where the offence is proposed to be done: CCQ, ss 541 and 542; CCWA, ss 558 and 560. Table 15.1 outlines some of the key conspiracy offences and their penalties. Table 15.1:  Elements of attempt to be proved by the prosecution Offence

Queensland

Western Australia

Conspiracy to commit a crime.

7 years imprisonment; and where the crime has a lower penalty, the lower penalty: CCQ, s 541(1).

 

Conspiracy to commit a misdemeanour.

3 years imprisonment: CCQ, s 542(1).

 

Conspiracy to commit an indictable offence.

 

If the penalty for the indictable offence is imprisonment for life, the penalty for the conspiracy is imprisonment for 14 years: CCWA, s 558(2)(a).

 

 

For any other indictable offences, the penalty for the conspiracy is half the penalty for the indictable offence: CCWA, s 558(2)(b).

 

 

Where the indictable offence may be dealt with summarily, the penalty for the conspiracy is the lesser of the principal offence on summary conviction or half the penalty of the principal offence on indictment: CCWA, s 558(2).

Conspiracy to commit a simple offence.

 

Punishment equals the greatest penalty for the simple offence or for the acts done or omitted: CCWA, s 560(1).

Courts should ensure that verdicts for co-​conspirators are not inconsistent. Where the evidence against one co-​conspirator is materially different to the

CHAPTER  15  CONSPIRACIES AND PARTIES      491

evidence against another, it is possible for one to be acquitted and another to be convicted: King v The Queen (1986) 161 CLR 423 at 423. “Conspiracy” is a challenging concept. While it is not defined in either the CCQ or CCWA, Murphy J has stated in R v Hoar (1981) 148 CLR 32 at 40; [1981] HCA 67 at [2]‌that “conspiracy” has an “amorphous nature”: The essence of conspiracy is sometimes regarded as the agreement, sometimes as the partnership in crime which results from the agreement. The vagueness extends to what evidence may be used to establish this slippery concept; it extends also to what should be taken into account on sentencing.

An agreement The key feature of a conspiracy is a concurrence of wills resulting from an agreement between two or more parties. A “concurrence of wills” without an agreement is not a conspiracy: Glanville Williams in Criminal Law –​The General Part (2nd ed, 1961) 666; quoted from Day v The Queen (1995) 81 A Crim R 60 at 67. When determining if there was an agreement, the question that must be asked is; had they this conscious understanding of a common unlawful design, and did they pursue it by these common means. “A mere coincidence of aims may occur without even a tacit agreement”, and this coincidence would not constitute a conspiracy: R v Murphy and Douglas (1837) 173 ER 502, at 508 per Coleridge J; R v Orton [1922] VLR 469 at 473 per Cussen J: quoted from Day v The Queen (1995) 81 A Crim R 60 at 68. To establish that there was an agreement there must be a meeting of the minds, either express or tacit, but it is not necessary that each conspirator should have any communication with every other. The fact that two or more parties were all pursuing the same unlawful object could help to infer an agreement, but it is not sufficient evidence on its own to establish an agreement: Day v The Queen (1995) 81 A Crim R 60 at 67 per Pidgeon J. The parties to a conspiracy do not need to complete an offence. Thus, the conspiracy provisions can be distinguished from the party provisions (discussed below in this chapter) on the basis that conspiracy provisions do not require the completion of an offence, while the party provisions do require completion. Establishing that there is an agreement between the co-​conspirators can be difficult and, to help demonstrate this requirement, prosecutors should emphasise any acts or omissions by the parties that go towards completing the offence in question.

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One-​on-​one agreements vs Group agreements [15.15] 

Diagram 15.1 illustrates that there is a one-​on-​one conspiracy between A  and B, and a separate one-​on-​one conspiracy between A  and C; however, there is no conspiracy between B and C.  There is no direct agreement between B and C, each has only individually agreed to do an act with A, and there is no group agreement between all three. Therefore, each party is not conspiring with every other party.1 In contrast, Diagram 15.2 illustrates a group conspiracy between all parties, because there is a shared group agreement between A, B and C to do acts that amount to an offence. Therefore, each party is conspiring with every other party. Diagram 15.1: No conspiracy

Conspiracy examples [15.20] 

Examples of conspiracy offences are:

• conspiracy to execute a seditious enterprise, which is a crime punishable by imprisonment for three years, and the prosecution of this must be commenced within six months of the offence: CCWA, s 52; • conspiracy to bring false accusation, or conspiracy to commence false prosecution, which is a crime: CCQ, s 131; CCWA, s 134. If the penalty for the offence is imprisonment for life, the penalty for the conspiracy is

1

See Day v The Queen (1995) 81 A Crim R 60 at 67, where Pidgeon J quotes Halsbury’s Laws of England (4th ed, Vol 11(1), 1990) at [64], note 7. B and C do not conspire with each other just because they each know that the other has an individual agreement with A to do an unlawful act. This actually creates two individual conspiracies, one of A and B and one of A and C. If A is not included in the indictment there are no conspiracies at all to be charged, because there is no conspiracy between just B and C, A is the common medium. To establish one shared conspiracy each party (A, B and C) must know that together the three of them plan to do acts that amount to an offence that goes beyond any individual agreements.

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imprisonment for life in Queensland and 20 years in Western Australia. If the penalty for the offence is imprisonment, but for a term shorter than life imprisonment, the penalty for the conspiracy is 14 years in both Queensland and Western Australia. In all other cases, the penalty for the conspiracy is seven years in both Queensland and Western Australia; • conspiracy to defeat justice, which is a crime punishable by imprisonment for seven years: CCQ, s 132; CCWA, s 135; • conspiracy to defile, which is a crime with a maximum penalty of 10 years imprisonment: CCQ, s 221; • conspiracy to attempt to cause an explosion likely to do serious injury to property, which is a crime punishable by imprisonment for 14 years and forfeiture of the explosive substance: CCWA, s 455; • conspiracy to prevent or defeat the execution or enforcement of any statute, which is a misdemeanour punishable by imprisonment for three years and the prosecution of which requires the consent of the Attorney-​ General: CCQ, s 543(1)(a); • conspiracy to cause any injury to a person or their reputation, which is a misdemeanour punishable by imprisonment for three years and the prosecution of which requires the consent of the Attorney-​General: CCQ, s 543(1)(b);

• conspiracy to prevent or obstruct an owner from the free and lawful disposition of property at fair value, which is a misdemeanour punishable by imprisonment for three years and the prosecution of which requires the consent of the Attorney-​General: CCQ, s 543(1)(c); • conspiracy to injure any person’s trade or profession,which is a misdemeanour punishable by imprisonment for three years and the prosecution of which requires the consent of the Attorney-​General: CCQ, s 543(1)(d); • conspiracy to prevent or obstruct (by an act that is an offence) a person from the free and lawful exercise of trade, profession or occupation, which is a misdemeanour punishable by imprisonment for three years and the prosecution of which requires the consent of the Attorney-​ General: CCQ, s 543(1)(e); • conspiracy to effect any unlawful purpose, which is a misdemeanour punishable by imprisonment for three years and the prosecution of which requires the consent of the Attorney-​General: CCQ, s 543(1)(f); and

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• conspiracy to depreciate the value of a person’s property, which is a misdemeanour punishable by imprisonment for three years and the prosecution of which requires the consent of the Attorney-​General: CCQ, s 543(1)(b);

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• conspiracy to effect any lawful purpose by any unlawful means, which is a misdemeanour punishable by imprisonment for three years and the prosecution of which requires the consent of the Attorney-​General: CCQ, s 543(1)(g). Note that there is an exemption from conspiring to do an act or make an omission in contemplation or furtherance of an industrial dispute: CCQ, s 543A(1). Diagram 15.2: Conspiracy

In R v Hoar (1981) 148 CLR 32 (R v Hoar) at 38 per Gibbs CJ, Mason, Aickin and Brennan JJ and at 40 per Murphy J, the High Court of Australia stated that it is undesirable to argue both an offence and a conspiracy offence on the same indictment, because it will tend to prolong and complicate the trial. It is only in exceptional cases that the element of concert may justify a more severe penalty for conspiracy than for the substantive offence which the conspirators commit. If the conspiracy is argued first, in a separate trial, this could bar the follow-​up trial and punishment for the substantive offence, as it could offend the rules of double prosecution or double punishment. Where there is sufficient and effective evidence to charge the substantive offence, an accused person should preferably be charged with the substantive offence. However, where the substantive offence cannot be established, they should

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be charged with a conspiracy offence: R v Hoar at 38 per Gibbs CJ, Mason, Aickin and Brennan JJ and at 40 per Murphy J.

Parties More than one person may be criminally responsible for committing an offence –​commonly referred to as “parties” or “complicity”. The provisions relating to parties in the CCQ and CCWA operate once an offence has been committed by more than one person. The element of “offence” is defined in CCQ; CCWA, s  2 as “an act or omission which renders the person doing the act or making the omission liable for punishment”. The parties provisions in the CCQ and CCWA apply to all offences, including those offences that exist outside the CCQ and CCWA: Hunt v Maloney [1959] Qd R 164 at 169. Not all parties to an offence need to have the same criminal responsibility; it depends on the evidence that is admissible against them:  CCQ, s  10A; see also R v Barlow (1997) 188 CLR 1. For example, one party may be criminally responsible for a lesser offence than another party because the former did not have the requisite standard of culpability, such as intention. The principal offenders are executors, enablers, aiders, counsellors and procurers: CCQ, s 7(1)(a), (b), (c) and (d); CCWA, s 7(a), (b), (c) and (d). In some situations, a procurer will take advantage of an innocent agent by organising for them to commit an offence:  CCQ, s  7(4); CCWA, s  7. In contrast, an accessory after the fact is involved after the offence has been committed: CCQ, s 10; CCWA, s 10(1). These offenders are illustrated in Diagram 15.3 and will be considered in turn. Diagram 15.3: Parties to an offence

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[15.30] 

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Executor [15.40] 

An executor could be described as more “hands-​on” than an enabler, aider, counsellor or procurer. An executor is present at the crime scene and is the party who “actually does the act or makes the omission”: CCQ, s 7(1)(a); CCWA, s 7(a). Their criminal responsibility may be higher than that of the other parties to an offence. As a matter of convenience, the executors should be tried first, however, the executors do not need to be convicted, or even prosecuted, before the other parties to an offence who may be held criminally responsible. The evidence against each party may be different in each case, therefore, questions and assumptions, such as the guilt of one party, should be considered afresh in each case. Assumptions should not be carried over between cases unless the evidence in each case is the same: R v Lopuszynski [1971] QWN 33 at 82-​83 per Kneipp J.

Enabler and aider [15.50] 

An enabler is a person who “does or omits to do any act for the purpose of enabling or aiding another person to commit the offence”: CCQ, s 7(1)(b); CCWA, s 7(b). It may be the case that while an enabler has done an act that was intended to enable or aid the commission of the offence, in fact the act did not actually enable or aid the offence. An enabler is usually not present at the crime scene; they may, for example, be a lookout. In contrast to an enabler, an aider is generally more effective in helping to commit the offence: CCQ, s 7(1)(c); CCWA, s 7(c). Unlike an enabler, an aider is commonly present at the crime scene. Intentional physical participation or verbal encouragement [15.53] 

A person who is merely present at the crime scene, and made no intentional direct physical participation or did not utter any intentional words of verbal encouragement, will not be automatically labelled an “aider”; even if their presence was non-​accidental, meaning they knew it was a crime scene. Direct physical participation may include: helping to hold the victim down, physically preventing others from assisting the victim or physically preventing the victim from escaping. Non-​interference to prevent a crime is not itself a crime; however, the question of aiding must be left open to the jury. The jury may draw an inference of aiding from the person being voluntarily and purposely present at the crime scene, and not assisting the

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victim, or not trying to desist the crime, or not expressing any dissent: R v Clarkson [1971] 3 All ER 344 at 346-​347, quoting R v Coney (1882) 8 QBD 534 at 557-​558 per Hawkins J. But if a person intentionally encourages “by expressions, gestures, or actions intended to signify approval”, he or she is an aider: R v Coney (1882) 8 QBD 534 at 557. Not only does an aider give support, help or assist, but “[t]‌here must be some deliberate positive involvement, if not active physical involvement, when the offence of aiding occurs”: R v Beck [1990] 1 Qd R 30 at 38. On some occasions a positive omission is sufficient to amount to aiding. For example, in Peterson v Fleay (2007) 176 A Crim R 148; [2007] WASC 230, a man who knew about prohibited plants being cultivated on land that he controlled amounted to aiding by positive omission. As the land belonged to him, cultivation after he had knowledge could not have continued without his acquiescence: at [17]–​[18]. Knowledge of essential facts [15.55] 

Criminal responsibility under CCQ; CCWA, s 7 is subjectively ascertained. An enabler or aider must know the offence committed or know that the offence might be committed: Borg v The Queen [1972] WAR 194 at 199. For example, to be an enabler or aider:

• In a murder case, the person must know at the time of helping that the executor intended to kill or do grievous bodily harm to the victim: R v Lowrie [2000] 2 Qd R 529 at 535; [1999] QCA 305 at [12]-​[13] per McPherson  JA, Thomas  JA agreeing at [30]-​[35]. The test in this case followed the test from R v Jeffrey [2003] 2 Qd R 306; [1997] QCA 154; R v B and P [1999] 1 Qd R 296; [1998] QCA 45; and Giorgianni v The Queen (1985) 16 A Crim R 163. • In a murder case, the person must know of the “essential facts” of the murder, including the specific intent. However, if the particular crime does not have an element of intent, then all the person needs to know is that a crime is occurring or will occur.The foreseeable consequences may also be relevant: R v Licciardello [2017] QCA 286 at [30] per McMurdo JA, Douglas J agreeing at [34].

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• In a wounding case, the person must know of the wounding or have the foresight that wounding may occur. It does not require foresight of the particular weapon: R v Da Costa [2005] QCA 385 at [32].

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• Simply knowing that a violent assault is intended is not necessarily enough to be equated to knowing the assault was intended to cause grievous bodily harm: R v Lowrie and Ross [2000] 2 Qd R 529 at 536-​537; [1999] QCA 305 at [16] per McPherson JA. Common purpose and probable consequence [15.58] 

Where the requisite knowledge is lacking, prosecutors may be successful under CCQ, s 8; CCWA, s 8(1), which is based on an objective test. According to Kiefel J in R v Keenan (2009) 236 CLR 397; [2009] HCA 1 at [102]: [t]‌he purpose of s  8 is to extend the criminal responsibility of the parties to a common purpose to an offence other than that which was intended to be committed. The section limits the extension of that responsibility by requiring that the nature of the offence committed be such as to be a probable consequence of the common purpose. [15.60]  There are three questions to be asked in applying CCQ, s  8; CCWA, s 8(1):

1.

Do the parties have a common intention to prosecute an unlawful purpose?

2.

Have the parties committed an offence?

3.

Is the offence of such a nature that it is a probable consequence of the unlawful purpose?

The first question, the question of whether a common intention was formed and the scope of that intention, has some relevant subjective considerations, such as the age and personal characteristics of the accused: R v AAP [2012] QCA 104 at [3]‌per McMurdo P. The common intention has been labelled “the lowest common denominator”, which means the shared intention of all of the parties: Bardsley v The Queen (2004) 29 WAR 338; [2004] WASCA 251 at [59]. For example, if one party has the intention of murdering, but the other party intends to assault, the common intention is to assault: Bardsley v The Queen (2004) 29 WAR 338; [2004] WASCA 251 at [45]-​[47]. The common intention has been interpreted to mean the sharing of ideas and information, or to plan in conjunction with one another and agree to commit the offence, and take steps together towards committing the offence. If the parties have formed a common intention to prosecute an offence, it is open to the jury to infer that there was a common intention to prosecute the offence together: R v Hawke [2016] QCA 144 at [48]-​[51] per Fraser JA.

If the death of the victim is a probable consequence (viewed objectively) of the unlawful purpose, then the party who intended to assault will be guilty of manslaughter and the party who intended to kill will be guilty of murder. Thus, where a party’s intention exceeds the common intention, they may be guilty of a more serious offence. It is the third question, the question of a probable consequence, that makes CCQ, s 8; CCWA, s 8(1) an objective provision by including an ordinary reasonable person test, is an entirely objective consideration. According to McMurdo P in R v AAP [2012] QCA 104 at [3]‌, an accused person’s age and immaturity are not relevant when using the ordinary reasonable person test to determine the probable consequences. The application depends on the element of “a probable consequence”. This element has been interpreted by the High Court in Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34 as not a consequence more likely to have happened than not, nor a consequence that is barely possible, but a consequence that is more than a real possibility or chance: at [56]-​[61].2 It is reasonably easy to distinguish probable from possible, but distinguishing “a probable consequence” from a “consequence more likely to have happened than not” is more challenging. In Darkan v The Queen, the majority of the High Court explained that “a probable consequence” did not mean a consequence likely to happen on the balance of probabilities. In particular, “a probable consequence” rather than “the probable consequence” suggests that there is more than one probable consequence, and it is difficult to determine how they all could be more probable than not for the purposes of a balance of probabilities test. Further, a balance of probabilities test would enable accused persons to escape criminal responsibility “if the prosecutor failed to do more than demonstrate that the risk of the consequence described in ss 8 and 9 was plainly there and that the odds were only just against it”: at [56]-​[58]. The High Court further stated (at [79]): The expression “a probable consequence” means that the occurrence of the consequence need not be more probable than not, but must be probable as distinct from possible. It must be probable in the sense that it could well happen.

More recently, in EAGD v Western Australia (No  2) [2014] WASCA 68, Buss JA at [89] stated that “probable consequence” equated to “could well have happened”.

2

For an application of Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34, see R v Witsen (2008) 189 A Crim R 147; [2008] QCA 316.

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In Varley v The Queen (1976) 12 ALR 347, the unlawful purpose was to beat or “rough up” the victim (who was unlawfully killed), and the issue was whether this purpose might involve the use of a weapon, such as a baton or cosh. The common intention was to punish the victim for threatening to go to the police and to stop him from going to the police in the future. It was determined that even though the accused did not know of the availability of the baton, or its intended use by another member of the party, the use of such a weapon was still within the reasonable scope of the common design (intention) to “rough up” the victim. Therefore, it was still a reasonable probable consequence, where the probable consequence of this common unlawful purpose was serious injury by whatever means, including a baton, cosh or knife: Varley v The Queen (1976) 12 ALR 347 at 353 per Barwick CJ. In R v Jeffrey [2003] 2 Qd R 306 at 318, death was a probable consequence of a serious assault with a common intention to prevent the victim from remembering an earlier attack. Departure from the common intention [15.65] 

Parties to a crime may be able to seek an acquittal, or at least a downgraded offence and reduced sentence, on grounds that the principal offender made a departure from the common intention/​purpose. However, the departure cannot just be a merely unexpected incident, and it must be a dynamic change that goes completely beyond the scope of the common purpose resulting in acts by the principal offender that the other parties could not have suspected as a probable consequence. Further, if the party is actively involved in the incident at the time of the dynamic change, the dynamic change must be sudden and unexpected. If the party is not actively involved, they may be able to claim that their knowledge of the common purpose was frozen in time. To make a successful defence on grounds of a dynamic change, the common purpose must be clearly established; if it is too vague, then any changes may not be seen as dynamic. Furthermore, if the party and the principal have a history of similar criminal conduct together, that has a striking similarity or close association in time, place or method, then it is unlikely that a claim of a dynamic change will be successful. The change may be seen as more by design than accidental: Markby v The Queen (1978) 140 CLR 108 at 116, 118 per Gibbs ACJ, quoting Makin v Attorney-​General (NSW) [1894] AC 57 at 65.

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In the context of an unlawful killing, if there is a common intention to carry out a violent attack and one party unexpectedly pulls out a knife and kills the victim, it may be seen as no more than an unexpected incident, a merely unexpected incident, and the other parties may still be convicted of manslaughter: Varley v The Queen (1976) 12 ALR 347 at 353 per Barwick CJ. If, on the other hand, one party makes a dynamic change by going completely beyond the scope of the common purpose/​intention, such as using a rifle to shoot the victim, the other parties will not be criminally responsible for either murder or manslaughter. This may be the case even if the other parties knew about the loaded rifle, because there may have been purposes other than causing harm for carrying the loaded rifle, such as protection: Markby v The Queen (1978) 140 CLR 108 at 110, 112; [1978] HCA 29 at [6]‌per Gibbs ACJ. Criminal responsibility [15.68] 

If enablers and aiders are caught by CCQ, s 7(1) or 8; CCWA, s  7 or 8(1), they may be criminally responsible for a lesser offence than executors: CCQ, s 10A; see also R v Barlow (1997) 188 CLR 1. For example, an executor may be charged with an offence that contains the element of intent, whereas other parties may lack this standard of culpability and be charged with a lesser offence that does not have intent as an element.

Counsellor and procurer A counsellor or procurer is also criminally responsible as a principal offender for an offence: CCQ, s 7(1)(d); CCWA, s 7(d). This is a subjective provision and depends on what the party knows and does. Where the offence counselled is committed by another person, or the offence is committed in the way counselled, the counsellor is criminally responsible under CCQ, s 7(1)(d); CCWA, s 7(d). The term “counsel” has been judicially interpreted as to intentionally advise, urge, solicit, encourage or plan when, how or why to carry out the offence: R v Oberbillig [1989] 1 Qd R 342 at 345; R v Hawke [2016] QCA 144 at [38]-​[41] per Fraser JA. It is incorrect and misleading to use “instigated” or “suggested” as synonymous with “counselled”, counselling requires more than mere instigation or suggestion: R v Hutton (1991) 56 A Crim R 211 at 214-​215. It may be argued by the accused that the counsel was not intentional, but merely reckless or in jest or without intention: R v Hawke [2016] QCA 144 at [39] per Fraser JA, at [61] per Philippides JA.

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[15.70] 

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“Procure” has been judicially considered in the context of a kidnapping offence by Davies JA in R v F; Ex parte Attorney-​General (Qld) [2004] 1 Qd R 162; [2003] QCA 70 at [2]‌-​[3] as: no more than “enable” or “facilitate” … The word “procure” is a plain English word. It is not a term of art. However its meaning may change depending on the context in which it is used. In particular the degree of proximity between procurement and what is procured may vary depending on the context in which the word is used.

The person procuring must know and intend “what is to be done”: Gough v Rees (1929) 46 TLR 103 at 105 per Lord Hewart CJ, Swift and Branson JJ agreeing; quoted from R v Hawke [2016] QCA 144 at [58] per Philippides JA. “To procure means to produce by endeavour. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening”: Attorney-​General’s Reference (No 1 of 1975) [1975] QB 773 at 779-​780 per Lord Widgery CJ, Bristow and May JJ agreeing; quoted from R v Hawke [2016] QCA 144 at [58] per Philippides JA. Procure has been held to mean successful persuasion to do something, it must be more than mere encouragement: R v Hawke [2016] QCA 144 at [59] per Philippides JA. The criminal responsibility of counsellors is extended by CCQ; CCWA, s 9, such that a counsellor will be deemed to have committed an offence done by another person who was counselled, even if the offence was different to that counselled, or the offence was committed in a different way to that counselled. However, a counsellor can only be held criminally responsible in these circumstances where the facts constituting the offence committed are a probable consequence of carrying out the counsel. Similar to CCQ, s  8; CCWA, s  8(1), a key element of CCQ; CCWA, s  9 is “probable consequence”, which is an objective test. This has been interpreted by the High Court in Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34 as not a consequence more likely to have happened than not, nor a consequence that is barely possible, but a consequence that is more than a real possibility or chance: at [56]-​[61].

Innocent agent [15.80] 

An accused person may procure another person to commit an offence. This person is called an “innocent agent”.3 Innocent agents may be 3

The term “innocent agent” has been criticised because, typically, an “agent” enters into legal relations on behalf of the principal with a third party, and there is no need for such a relationship between a principal and innocent agent. Thus, the notion of an “innocent agent” may be confusing and “innocent instrument” may be more appropriate terminology: Pinkstone v The Queen (2004) 219 CLR 444; [2004] HCA 23 at [60].

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insane or too young to understand what they are doing or of sound mind and full understanding but ignorant of the true facts and believes the acts are lawful: White v Ridley (1978) 140 CLR 342 at 346; [1978] HCA 38 at [4]‌. As illustrated in Diagram 15.4, an innocent agent generally does not have the intent of committing the offence. Therefore, where the offence includes the element of intent, the offence would not be committed. In such a case, the innocent agent could not be charged with the offence and the principal could not be charged as an accessory before the fact –​for example, a procurer, counsellor or enabler. To overcome this problem, the innocent agent provision in CCQ, s 7(4); CCWA, s 7 makes the principal criminally responsible for the actions or omissions of the innocent agent. Diagram 15.4: The roles of a procurer and innocent agent

Some examples of innocent agents provided in White v Ridley (1978) 140 CLR 342; [1978] HCA 38 at 346-​347 (CLR) at [4]‌include:

• a person who unknowingly was given a forged bank note by another person and told to pass it on; • a person who was given incorrect information by another person and entered the information into a register believing the information to be true; and • an innocent engraver who made a forged plate.

Accessory after the fact [15.90] 

An accessory after the fact actively receives or assists a principal offender to escape or delay detection, apprehension or punishment. The most important consideration must always be the nature of the assistance afforded after the events, the reason why it was provided and the extent to which it helped the principal offender: R v Winston (1994) 74 A Crim R 312 at 316.

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• an airline that transported cannabis into Australia not knowing that cannabis was inside the box;

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An accessory after the fact must know that the person they are helping has committed an offence.Without this knowledge, the person lending assistance is not an accessory after the fact and is not criminally responsible. In most cases, an accessory after the fact does not know all of the circumstances in which the offence was committed, but they do know that they are standing in between the accused person and the law:  R v Ablitt [2009] QCA 45 at [25] per Atkinson J, quoting R v Mills (1977) 16 SASR 581 at 586 per Sangster J. In Queensland, there is no immunity for a spouse who is an accessory after the fact. However, in Western Australia, a spouse does have immunity from criminal responsibility as an accessory after the fact: CCWA, s 10(2). Examples of the way in which accessories after the fact have received or assisted are: • In a murder case, the accessory after the fact cleaned up a bedroom and provided false accounts to the police: R v Shales [2005] QCA 192.

If the applicant had been truthful earlier and had proven to be a more reliable witness, the prosecution would not have accepted the other accused person’s plea of guilty to manslaughter instead of murder; the body (skeleton) of the deceased may have been found earlier; and the prosecution could have determined whether there were six or seven stab wounds on the body as alleged.



The accessory tried to claim that she only helped because she feared retribution from the offender. However, that fear was considered to be exaggerated because the offender was mostly in gaol after the incident and the accessory continued to visit him in prison.

• In a case of assault occasioning bodily harm, the accessory after the fact (a police officer) intentionally stopped a video recording of a woman, who was arrested for shoplifting, being punched several times in the face by another police officer: R v Ablitt [2009] QCA 45 at [13].

The video only captured the police officer grabbing the woman by the throat, pinning her up against the cell wall and making threats to assault her. Atkinson J, with whom de Jersey CJ and Muir JA agreed, stated (at [22]–​[23]): The applicant’s crime in assisting Burkett [the police officer who committed the assault occasioning bodily harm] to escape punishment for the assault occasioning bodily harm was a grave abuse of the trust reposed by the community in the police service. While Burkett may have initially been acting in the heat of the moment the applicant had no such excuse. He deliberately prevented evidence

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from being retained, failed in his duty of care to the person arrested and failed to ensure what evidence there was on the video tape of what had happened was made available to investigators or the court. It was only because Burkett retained the video tape in his drawer that it was eventually retrieved.The applicant Ablitt was the senior officer on duty at the police station and his actions on that day show a gross dereliction of duty. Such behaviour warrants severe and condign punishment in particular to deter others in a position of power or trust who may be tempted to commit similar criminal acts and to publicly denounce the behaviour in which the applicant was involved.



Atkinson J referred to common examples of what accessories after the fact do –​that is, sheltering or harbouring an accused person to prevent them from being arrested as well as concealing evidence relating to the offence: R v Ablitt [2009] QCA 45.

• An accessory after the fact to burglary, stealing and unlawful use of a motor vehicle provided assistance to her de facto husband over a 13-​month period: R v Chua [2003] QCA 41 per Mullins J.

In particular, she helped him to use false names to travel by bus and train, and drove him to the train station to catch a train to Sydney where he was to leave the country. He was, however, unsuccessful in leaving the country.

• The accessory after the fact was the accused person’s de facto wife, who provided a false alibi for the time of the murder:  Western Australia v Lauchlan [2005] WASC 266 at [5]‌. • In the gruesome case of R v Roughan (2007) 179 A Crim R 389; [2007] QCA 443, the appellant pleaded guilty to both being an accessory after the fact to murder and of interfering with a corpse. It is difficult to see where one offence begins and the other one ends, but Roughan stabbed the deceased, sawed the head off the deceased, used the head as a puppet, wrapped the body in carpet and dumped the body. According to CCQ, s  544, an accessory after the fact to a crime, misdemeanour or simple offence commits a crime, misdemeanour or simple offence, respectively. If no other penalty is provided, the maximum penalty for an accessory after the fact is set out in Table 15.2.

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• For a charge of unlawful wounding with intent to do grievous bodily harm, the accessory after the fact removed and disposed of a firearm and cleaned up the crime scene, thereby destroying evidence: Mercanti v Western Australia [2005] WASC 28 at [3]‌.

506      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Table 15.2: Maximum punishment for an accessory after the fact Accessory after the fact for the following offences

Queensland

Western Australia

Indictable offence punishable by mandatory life imprisonment

Life imprisonment: CCQ, s 545(1)

 

Indictable offence punishable by life imprisonment

14 years imprisonment: CCQ, s 545(2)

14 years imprisonment: CCWA, s 562(2)(a)

Other indictable offence

Half of the greatest punishment to which an offender convicted of the offence is liable: CCQ, s 545(3)

Half of the penalty of the indictable offence: CCWA, s 562(2)(b)

Simple offence

Half of the greatest punishment to which an offender convicted of the offence is liable: CCQ, s 545(3)

 

Offence may be dealt with summarily

 

The lesser of the penalty for the indictable offence on summary conviction OR half the indictable offence penalty: CCWA, s 562

Withdrawal of participation [15.100] 

While the clock may never be turned back and acts by parties may not be undone, the criminal law still recognises that a party may withdraw from the common intention to prosecute an unlawful purpose. In Western Australia, a party may withdraw from a common plan to prosecute an unlawful purpose by words or conduct to the other people with the common intention, in addition to taking all reasonable steps to prevent the offence: CCWA, s 8(2). In Queensland, in R v Emelio [2012] QCA 111 at [15], Dalton  J acknowledged that there is no explicit defence of withdrawal in the CCQ. Whether an accused person has withdrawn under s CCQ, s 8 is different to CCQ, s 7. Under CCQ, s 8, a party may withdraw from an unlawful purpose if the common purpose to prosecute an unlawful purpose has come to an end. With regard to CCQ, s 7 and CCWA, s 7, the case law suggests that an aider may counterbalance earlier assistance so as to undo the benefits of such aid, or similarly neutralise their conduct: R v Menniti [1985] 1 Qd R 520 at 526-​527, 534-​535; and White v Ridley (1978) 140 CLR 342 at 347-​348 per Gibbs J.

In company and criminal organisations [15.110] 

In Queensland and Western Australia, some offences may be modified with an “in company” or “associated with a criminal organisation” circumstance of aggravation; in other offences, these are essential elements.

CHAPTER  15  CONSPIRACIES AND PARTIES      507

These provisions are relevant because where the CCQ; CCWA, s  7 provisions extend the criminal liability to others involved (aiders, enablers, counsellors and procurers), these provisions further extend the criminal liability of the executor for having others involved. CCQ; CCWA, s 7 punishes the helpers, while “in company” and “criminal organisation” further punishes the executor for having helpers. In company The term in company is not defined in either the CCQ or CCWA; however, the term has been interpreted in case law. Whether the principal offender had company is generally determined by the other person’s degree of effective proximity to the principal offender and the offence. This is similar to the distinctions used when determining parties such as aiders, enablers and counsellors: R v Johns [1978] 1 NSWLR 282 at 286D-​ 286F, 289G-​290D per Street CJ. The other person’s degree of effective proximity is determined by their common purpose with the principal offender, and the nature and degree of their: physical separation from the crime scene; influence over the criminal conduct and involvement in the criminal conduct. The degree of physical proximity required to satisfy being company to the principal offender is not fixed in absolute terms, the concept of in company does not merely relate to physical distance. Persons with significant physical separation from the principal offender and the crime scene may still have sufficient effective proximity to be considered company, such as a lookout or a sniper: R v Button; R v Griffen (2002) 54 NSWLR 455, James J. In Queensland, the “In company” circumstance of aggravation may be added to offences such as: • Assaults occasioning bodily harm, in company with one or more other person or persons: CCQ, s 339(3); Increases maximum penalty from 7  years imprisonment to 10  years imprisonment. • Sexual assaults, in company with any other person: CCQ, s 352(3)(a) Increases maximum penalty from 10  years imprisonment to life imprisonment. • Robbery, in company with one or more other person or persons: CCQ, s 411(2); Increases maximum penalty from 14  years imprisonment to life imprisonment.

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[15.112] 

508      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

• Attempted robbery, in company with one or more other person or persons: CCQ, s 411(2); Increases maximum penalty from 7  years imprisonment to 14  years imprisonment. • Taking control of aircraft, in company with one or more other person or persons: CCQ, s 417A(3); Increases maximum penalty from 7 years or 14 years imprisonment to life imprisonment. • Burglary, in company with one or more other person or persons: CCQ, s 419(3)(b)(iii); Increases maximum penalty from 14  years imprisonment to life imprisonment. • Unlawful entry of vehicle for committing indictable offence, in company with one or more persons: CCQ, s 427(2)(iii); Increases maximum penalty from 10  years imprisonment to 14  years imprisonment. In Western Australia “in company” is both an essential element of some offences and a circumstance of aggravation added to offences such as: • Being armed in public in company, when in company with 2 or more other persons: CCWA, s 68C(2); Maximum penalty is 5 years imprisonment. • Serious assault, in company with another person or persons:  CCWA, s 318(1)(l)(ii); Increases maximum penalty from 7 years to 10 years imprisonment. • Aggravated indecent assault, in company with another person or persons (CCWA, s 319(1)(a)(ii)) CCWA, s 324(1); Maximum penalty is 7 years imprisonment. • Aggravated sexual penetration without consent, in company with another person or persons (CCWA, s 319(1)(a)(ii)) CCWA, s 326(1); Maximum penalty is 20 years imprisonment. • Unlawful use of conveyance (not of motor vehicle), in company with another person or persons CCWA, s 390A; Increases maximum penalty from 7  years imprisonment to 10  years imprisonment. • Robbery, in company with another person or persons (CCWA, s 391(a)(i)) CCWA, s 392(d);

CHAPTER  15  CONSPIRACIES AND PARTIES      509

Increases maximum penalty from 14  years imprisonment to 20  years imprisonment. • Assault with intent to rob, in company with another person or persons (CCWA, s 391(a)(i)) WACC, ss 393(c)(ii), (d)(ii); Increases maximum penalty from 10  years imprisonment to life imprisonment or 14 years imprisonment. • Burglary, in company with another person or persons (CCWA, s 400(1)(a) (iii)) CCWA, ss 401(1)(ba), (b), (2)(ba) and (b); Increases maximum penalty from 14  years imprisonment to 20  years imprisonment or 18 years imprisonment. Criminal organisations [15.115] 

In Queensland, a criminal organisation is a group of three or more persons, whether arranged formally or informally, who engage in serious criminal activity and represent an unacceptable risk to the safety, welfare or order of the community: PSAQ, s 161O. Serious criminal activities are listed as: • Serious violent offences: PSAQ, Sch 1. • Serious child sex offences: PSAQ, Sch 1A. • Serious drug offences: PSAQ, Sch 1B.

• Riot: CCQ, s 61(2A)

• Official corruption: CCQ, s 87(1B)

• Misconduct in relation to public office: CCQ, s 92A(4A)

• Attempting to pervert justice: CCQ, s 140(2)

• Indecent treatment of children under 16: CCQ, s 210(4B)

• Murder: CCQ, ss 302(5), 305(5)

• Manslaughter: CCQ, s 303(2)

• Kidnapping: CCQ, s 354(3)

A serious organised crime circumstance of aggravation is for a prescribed offence of which an offender reasonably knew they were associated with a criminal organisation as a participant; was at their direction, in association of their members, or for the benefit of the organisation: PSAQ, s 161Q. In Western Australia, a criminal organisation is an entity that represents a risk to public safety and order in this State, and whose members associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity: CCWA, s 221D.

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Many offences may be modified with a “criminal organisation” circumstance of aggravation pursuant to Penalties and Sentences Act 1992 (Qld) (PSAQ), s 161Q, offences such as:

510      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Criminal organisation offences in Western Australia include: • Participating in activities of criminal organisation: CCWA, s 221E

• Instructing commission of offence for benefit of criminal organisation: CCWA, s 221F

In Queensland, the Vicious Lawless Association Disestablishment Act 2013 (Qld) (VLADA) came into effect in 2013, but was then repealed on 9 December 2016 by the Serious and Organised Crime Legislation Amendment Act 2016 (Qld). This legislation was colloquially known as the “anti-​bikie legislation”. It aimed to “(a) disestablish associations that encourage, foster or support persons who commit serious offences; (b) increase public safety and security by the disestablishment of the associations and (c) deny to persons who commit serious offences the assistance and support gained from association with other persons who participate in the affairs of the associations”: VLADA, s 2. Additional criminal offences relating to participants in criminal organisations were also added to the CCQ in 2013 but were then repealed on 9 December 2018 by the Serious and Organised Crime Legislation Amendment Act 2016 (Qld), Div 4 Amendments commencing 2  years after assent. It was an offence for a participant in a criminal organisation to be knowingly present in a public place with two or more other participants in a criminal organisation: CCQ, s 60A. If a participant in a criminal organisation entered or attempted to enter a prescribed place or event, it was an offence: CCQ, s  60B. Further, it was an offence to recruit a participant for a criminal organisation: CCQ, s 60C.

Elements toolbox Conspiracy Queensland [15.120] 

1.

The elements of CCQ, s 541(1) and (2) are:

Person conspires with another: (a)

to commit a crime; OR

(b)

to do any act in any part of the world which, if done in Queensland would be a crime and which is an offence where it is proposed to be done

2.

Is guilty of a crime

3.

Penalty (if no other penalty provided):

CHAPTER  15  CONSPIRACIES AND PARTIES      511

4.

(a)

imprisonment for seven years; OR

(b)

where the crime has a penalty that is less than imprisonment for seven years, the lesser penalty

Prosecution for the offence requires the consent of the Attorney-​General.

The elements of CCQ, s 542(1) and (2) are: 1.

Person conspires with another: (a)

to commit an offence which is not a crime; OR

(b)

to do any act in any part of the world which, if done in Queensland, would be an offence but not a crime and which is an offence where it is proposed to be done

2.

Is guilty of a misdemeanour

3.

Penalty is imprisonment for three years

4.

Prosecution for the offence requires the consent of the Attorney-​General.

Western Australia

The elements of CCWA, s 558(1) and (2) are: Person conspires with another: (a)

to commit an indictable offence; OR

(b)

to do any act or make any omission in any part of the world which, if done or made in Western Australia, would be an indictable offence and which is an offence where it is proposed to be done or made

2.

Is guilty of a crime

3.

Penalty: (a)

indictable offence is punishable with imprisonment for life; the conspiracy is punishable with imprisonment for 14 years; OR

(b)

in other cases, the conspiracy is punishable with half of the penalty of the indictable offence; OR

(c)

where the indictable offence may be dealt with summarily, the conspiracy is punishable by the penalty for the indictable offence on summary conviction. The elements of CCWA, s 560(1) are: 1.

Person conspires with another: (a)

to commit any simple offence; OR

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1.

512      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

(b)

to do any act or make any omission in any part of the world which, if done or made in Western Australia, would be a simple offence and which is an offence where it is proposed to be done or made

2.

Is guilty of a simple offence

3.

Penalty is the greatest punishment for the simple offence in (a) or (b).

Parties Executor, enabler, aider, counsellor or procurer

The elements of CCQ, s 7(1)(a)-​(d); CCWA, s 7(a)-​(d) are: 1.

Offence is committed

2.

Each of the following parties is deemed to have taken part in the offence and may be charged: (a)

every person who actually does the act or makes the omission which constitutes the offence [executor]:  CCQ, s  7(1)(a); CCWA, s 7(a);

(b)

every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence [enabler]: CCQ, s 7(1)(b); CCWA, s 7(b);

(c)

every person who aids another person in committing the offence [aider]: CCQ, s 7(1)(c); CCWA, s 7(c); and

(d)

any person who counsels or procures any other person to commit the offence [counsellor or procurer]: CCQ, s 7(1) (d); CCWA, s 7(d).

Procurers using an innocent agent

The elements of CCQ, s 7(4); CCWA, s 7 are: 1.

Person procures another

2.

To do or omit to do any act

3.

Act or omission constitutes an offence

4.

Procurer is liable as if they had done the act or omission

5.

Procurer may be charged with doing the act or making the omission.

Offences committed in prosecution of common purpose

The elements of CCQ, s 8; CCWA, s 8(1) are:

CHAPTER  15  CONSPIRACIES AND PARTIES      513

1.

Two or more persons form a common intention to prosecute an unlawful purpose

2.

Offence is committed

3.

Offence is of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose.

Note that in Western Australian only, CCWA, s 8(2) provides that a person is not deemed to have committed the offence if they: (a) withdrew from the prosecution of the unlawful purpose; and (b) by words or conduct communicated the withdrawal to the other people with the common intention; and (c) took all reasonable steps to prevent the commission of the offence. Extension of a counsellor’s criminal responsibility

1.

Person counsels another to commit an offence

2.

An offence is committed

3.

It is immaterial whether the offence committed: (a)

is the same or different to that counselled; OR

(b)

is committed in the same or different way to that counselled

4.

Acts constituting the offence committed are a probable consequence of the counselling

5.

Counsellor is deemed to have committed the offence actually committed.

Accessories after the fact

The elements of CCQ, s 10; CCWA, s 10(1) are: 1.

Person receives or assists another to help them escape punishment

2.

Person knows the other person has committed an offence.

Note that in Western Australia only, CCWA, s  10(2) provides a spouse with immunity from being an accessory after the fact. Criminal responsibility based on evidence

In Queensland, the elements of CCQ, s 10A are: 1.

A person’s criminal responsibility under CCQ, s 7 or 8

2.

Extends to any offence based on the evidence (either the offence proved against the person who did the act or made the omission, or an alternative).

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The elements of CCQ; CCWA, s 9 are:

514      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Guide to problem solving [15.130] Conspiracy • Have two or more people agreed to commit an offence?

– Was there a meeting of the minds, a conscious understanding of a common unlawful purpose? and



– Did they pursue the common purpose by common means?

• Should the accused person be charged with the offence or with conspiracy to commit the offence? • Does the offence need to be completed, or is simply agreeing to commit an offence enough? Parties • Has an offence been committed? • Look at what each party has done or omitted, and note whether they are present at the crime scene. – How is each party criminally responsible for the offence or offences?

– Are they an executor, enabler, aider, counsellor, procurer or an accessory after the fact?



– Have they used an innocent agent?

• Do the parties have a common intention to prosecute an unlawful purpose? – Did the parties commit an offence that was a probable consequence of the prosecution of the unlawful purpose?

– What does “probable” mean?

• Are there any dynamic changes to the common intention or merely unexpected incidents? • If there is a counsellor, does it matter whether the offence counselled is the same or different to that committed?

– Does the offence need to be committed in the way counselled?

• If there is an accessory after the fact, what must they know? – Did they receive punishment?

and/​ or

assist

an

offender

to

escape

– Is there spousal immunity?

• Has a party done anything to withdraw from the common intention? • Do all parties need to be charged with the same offence?

– Could a party be charged with a lesser offence?

CHAPTER  15  CONSPIRACIES AND PARTIES      515

Revision questions 1.

What is the key difference between the conspiracy provisions and the party provisions?

2.

What is the difference between CCQ, s 7(1)(b); CCWA, s 7(b) and CCQ, s 7(1)(c); CCWA, s 7(c)?

3.

What is the difference between CCQ; CCWA, s 7 and CCQ; CCWA, s 8?

4.

Does an executor need to be charged and convicted before the other types of parties to an offence?

5.

Does CCQ; CCWA, s 9 extend the criminal responsibility of all parties to offences the nature of which was that their commission was a probable consequence of the common intention to commit an unlawful purpose?

6.

If one co-​conspirator is acquitted, must the other co-​conspirator also be acquitted?

1.

The police received a tip-​ off from an anonymous caller that Alex and Ben were planning to sell false 18-​ plus cards to hundreds of schoolies for a solid profit. During a search of Alex and Ben’s jointly-​owned home, the police found boxes of false identification cards in the lounge room, and several drafts of an elaborate distribution plan that had been generated by both of them over the last six months. Assume that schoolies week is scheduled to occur in three weeks’ time, and Alex and Ben have not actually sold any false identification cards. Discuss what the prosecution needs to prove to be successful on a conspiracy charge against Alex and Ben under CCQ, s 541; CCWA, s 558. DO NOT discuss the penalty.

2.

Ava, Bella and Chloe planned to attack Owen because he collected $20,000 on their behalf for modelling work they had completed, and he failed to pay it to them. Ava knew Owen would be home alone on Sunday afternoon between 3-​ 5 pm playing an online game, called Fashion World, so they decided to drop by his house around that time. Ava, Bella and Chloe agreed to induce Owen to hand over the cash by giving him a “touch up”, but they agreed not to hurt him too much because they wanted future modelling work with him. At 3.10 pm on Sunday, Ava drove Bella and Chloe in a panel van to Owen’s house, and then parked the vehicle about 20 metres along the street.

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Problem questions

516      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Owen answered his doorbell when Bella and Chloe rang it, and invited them inside. From there, Bella and Chloe tackled Owen to the floor. Bella pinned Owen to the floor by sitting on him and demanded the cash that he owed them. Owen struggled and said the money was at the bank. Chloe then slapped Owen in the face with her fist, and Owen froze in shock. Chloe then grabbed a knife from the kitchen. Bella told Chloe to put the knife down, as Owen would be no good to them dead, but Chloe did not listen. Bella got off Owen, but he did not have the strength to get up and defend himself from Chloe, and Chloe stabbed him several times in the chest, killing him. Bella and Chloe ran out of the house towards the panel van, and Chloe was still holding the knife. Ava was shocked to see Chloe holding a knife with blood on it, and asked whether they had received any money or any extra modelling work. As Ava drove the panel van to her boyfriend’s (Dan’s) home, Bella and Chloe recounted the events that had occurred inside the house to Ava. On arrival, Ava told Dan she wanted to keep the panel van locked up in his garage for the next week or so. Dan said that the panel van would be safe with him. Bella took the knife from Chloe, cleaned it up and left it on a bench in Dan’s garage. Two days later, Dan found the knife on the bench, thought it was one of his fishing knives, and put it in his fishing tackle box. Discuss the criminal responsibility of Ava, Bella, Chloe and Dan under the parties provisions.

Answers to revision questions 1.

The conspiracy and party provisions appear to be similar because they require the parties to have an agreement or common plan. The key difference between these provisions is that while the conspiracy provisions do not require an offence to be committed, the party provisions do require an offence to be committed.

2.

According to CCQ, s 7(1)(b); CCWA, s 7(b), enablers to an offence are criminally responsible. On the other hand, CCQ, s 7(1)(c); CCWA, s 7(c) state that aiders to an offence are criminally responsible. In contrast to an enabler, an aider is usually present at the crime scene. An aider’s acts or omissions actually go towards the commission of the offence, whereas an enabler’s acts or omissions may not actually assist the commission of the offence.

3.

Principal offenders are criminally responsible under CCQ; CCWA, s 7. Thus executors, aiders, enablers, counsellors, procurers, and offenders who use innocent agents are caught by the provision. It is a subjective provision because the principal offender must

CHAPTER  15  CONSPIRACIES AND PARTIES      517

know that the offence has been committed or know that the offence might be committed: Borg v The Queen [1972] WAR 194 at 199. In contrast, CCQ; CCWA, s 8, extends criminal responsibility to other offences that are not contingent upon the party’s knowledge. For the purposes of CCQ; CCWA, s 8, the party’s knowledge is only relevant to determining the common intention to commit an unlawful purpose. Once the unlawful purpose is determined, CCQ; CCWA, s 8 requires an offence to be committed and that the offence committed is of such a nature that its commission was a probable consequence of the common unlawful purpose, which are objective elements: R v Keenan (2009) 236 CLR 397; [2009] HCA 1 at [83]. 4.

No. A party to an offence may be convicted even though the executor escaped criminal responsibility: R v Lopuszynski [1971] QWN 33.

5.

No. CCQ; CCWA, s 9 only applies to counsellors and not other parties. This provision makes counsellors criminally responsible for offences that are a probable consequence of carrying out the counsel. It is irrelevant whether the offence committed is the same or different to that counselled, or whether the offence is committed in the same or a different way to that counselled.

6.

Not necessarily. The courts need to examine the evidence against each co-​conspirator. Where the evidence is materially the same, the co-​conspirators should receive the same verdict, but where the evidence is materially different, one co-​conspirator may be acquitted while another is convicted: King v The Queen (1986) 161 CLR 423 at 423.

In answering these questions, the following issues need to be raised. QUESTION 1 Have Alex and Ben agreed to commit an offence? Should Alex and Ben be charged with the offence, or with conspiracy to commit the offence? Alex and Ben have been charged with a conspiracy offence. It is not clear on the facts what each of them has done exactly, but the boxes found in their joint home and the drafts of the elaborate distribution plan generated over a six-​month timeframe suggest that they are both involved in the organisation of fraudulent conduct, and that they have agreed to commit the offence of fraud. The conspiracy charges against Alex and Ben require the prosecution to centre on the continuing organisational framework rather than proving the individual acts done by Alex and Ben: see R v Ngo [2010] 1 Qd R 193; [2009] QSC 212 at [24]. Thus, where it is difficult to prove the acts done by each party, conspiracy charges are more appropriate than fraud charges.

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Answers to problem questions

518      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Does it matter that Alex and Ben have not actually sold the false identification cards to the schoolies? No, a conspiracy charge is based on an agreement to commit an offence, not the completion of an offence. For the prosecution to be successful on the conspiracy charges against Alex and Ben, it must show that Alex and Ben agreed to sell false identification cards, not that they actually sold false identification cards: CCQ, s 541; CCWA, s 558. QUESTION 2 It is a good idea to create a matrix outlining the offences committed, the parties and their criminal responsibility. Y = yes, criminally responsible. N = no, not criminally responsible. Party

Ava

Offence

Assault Unlawful Assault Unlawful Assault Unlawful Assault Unlawful killing killing killing killing

Bella

Chloe

Dan

Executor: CCQ, s 7(1) (a); CCWA, s 7(a)

N

N

Y

N

Y

Y

N

N

Enabler: CCQ, s 7(1) (b); CCWA, s 7(b)

Y

N

N

N

N

N

N

N

Aider: CCQ, N s 7(1)(c); CCWA, s 7(c)

N

Y

Y

N

N

N

N

Counsellor: Y CCQ, s 7(1) (d); CCWA, s 7(d)

N

Y

N

Y

N

N

N

CCQ, s 8; CCWA, s 8(1) –​ (Only if not liable as Enabler or Counsellor)

Maybe

N

N

N

N

N

N

N

CCQ; CCWA, s 9

Y

N

Y

N

N

N

N

N

Accessory Y after the fact: CCQ, s 10; CCWA, s 10(1)

Y

N

Y

N

N

N

N

Has an offence been committed against Owen? For the purposes of CCQ, s 7(1); CCWA, s 7, an offence must be committed before the party provisions operate. An accessory may be liable even if the executor escapes criminal responsibility: R v Lopuszynski [1971] QWN 33. Owen was pinned to the floor, slapped across the face by a fist and stabbed several times. He endured assault, which was followed by an unlawful killing. An offence is a punishable act or omission: CCQ; CCWA, s 2. Assault is an offence pursuant to CCQ, s 335; CCWA, s 313.

CHAPTER  15  CONSPIRACIES AND PARTIES      519

Murder is an offence pursuant to CCQ, s 302; CCWA, s 279. R v Chloe Is Chloe criminally responsible as an executor for the assault? An executor is the party who actually does the act or makes the omission that constitutes the offence. As a result, they are deemed to have taken part in committing the offence and may be charged with it: CCQ, s 7(1)(a); CCWA, s 7(a). An executor is usually present at the crime scene. Chloe actually slapped Owen across the face without his consent, which is an assault. Is Chloe criminally responsible as a counsellor for the assault? A party who counsels another person to commit an offence is deemed to have taken part in the offence and may be charged with it: CCQ, s 7(1); CCWA, s 7. When two or more parties plan to commit an offence together, they counsel each other: R v Solomon [1959] Qd R 123. Pursuant to CCQ; CCWA, s 9, it is immaterial if the offence committed was different to that counselled, or committed in a different way to that counselled, so long as the offence committed was a probable consequence of the offence counselled. Chloe, Ava and Bella have agreed to induce Owen to hand over the cash by giving him a “touch up”. They have counselled each other to commit an assault.

As discussed above, the executor is the party who is present at the crime scene and does the act or makes the omission. Chloe stabbed Owen several times in the chest, killing him, which is an unlawful killing. The group agreement was to give Owen a “touch up”, which is a vague description with a broad scope of design. However, no weapons were taken and the group agreed to not kill Owen as part of the plan. Chloe’s intention to kill Owen is a sudden and unexpected dynamic change. It has exceeded the common intention of the other parties, who only wanted to give Owen a “touch up” to obtain their money, but also wanted future modelling work: Bardsley v The Queen (2004) 29 WAR 338; [2004] WASCA 251 at [54]; Varley v The Queen (1976) 12 ALR 347. By killing Owen, the parties would not obtain future modelling work from Owen. The prosecution should argue murder rather than manslaughter here and draw on facts such as there were a number of stabbings, that Chloe stabbed Owen in the chest, as opposed to another part of the body, as well as their relationship history (Owen owes Chloe money). Is Chloe liable to circumstances of aggravation of “in company” or being associated with a “criminal organisation” for the assault or the unlawful killing? Chloe and Bella had a common purpose of committing the assault. Bella had no physical separation from the crime scene. She also had

Chapter 15

Is Chloe criminally responsible as an executor for the unlawful killing?

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influence over the criminal conduct and involvement in the criminal conduct. There was no common purpose for the unlawful killing: R v Button; R v Griffen (2002) 54 NSWLR 455 per James J. Therefore, Bella had no effective proximity for the unlawful killing but did have an effective proximity to Chole during the assault, which means Chloe was in company of Bella for the assault. In Queensland and Western Australia, common assault does not have “in company” as a circumstance of aggravation. Bella, Chloe and Ava planned and organised the assault as a group of three or more. However, they did not plan the unlawful killing together. The assault is not a serious criminal activity so they are not regarded as a criminal organisation. Therefore, Chloe is not liable to circumstances of aggravation of “in company” or being associated with a “criminal organisation” for the assault or the unlawful killing. R v Bella Is Bella criminally responsible as an executor, aider and/​or counsellor for the assault? Bella is an executor for the assault because she did the act –​that is, physically pinned Owen to the floor by sitting on him. Bella was present at the crime scene, but an aider must do more than just be present. The jury may draw an inference of aiding from the person being voluntarily and purposely present at the crime scene, and not assisting the victim, or not trying to desist the crime, or not expressing any dissent: R v Clarkson [1971] 3 All ER 344 at 346-​347, quoting R v Coney (1882) 8 QBD 534 at 557-​558 per Hawkins J. However, an aider must still intentionally encourage, give support, help, or be involved deliberately: R v Coney (1882) 8 QBD 534 at 557; and R v Beck [1990] 1 Qd R 30 at 38. By sitting on Owen, Bella has steadied Owen and helped Chloe to slap Owen across the face. Consequently, Bella is an aider to the assault. As discussed above, Bella, Ava and Chloe agreed to give Owen a “touch up”. Therefore, as a result, they have counselled each other to commit an assault. Thus, Bella is criminally responsible as a counsellor for the assault. Is Bella criminally responsible for the unlawful killing under CCQ, s 7(1); CCWA, s 7? As Bella did not actually stab Owen several times in the chest, thereby killing him, she is not criminally responsible for the unlawful killing as an executor under CCQ, s 7(1)(a); CCWA, s 7(a). Bella is not an enabler to the unlawful killing because she is present at the crime scene and has not done anything that was intended to help Chloe kill Owen. Bella was physically present in Owen’s home when he was unlawfully killed but, as mentioned above, presence at the crime scene is insufficient by itself for a person to be held responsible as

CHAPTER  15  CONSPIRACIES AND PARTIES      521

an aider. The jury may draw an inference of aiding from the person being voluntarily and purposely present at the crime scene, and not assisting the victim, or not trying to desist the crime, or not expressing any dissent. Bella expressed verbal dissent by telling Chloe to put the knife down, and she did not pin Owen down at the time Chloe stabbed him, so Bella did not physically help Chloe. Therefore, Chloe has made a sudden and unexpected dynamic change, her intention to kill Owen has exceeded the common intention. Bella just wanted to give Owen a “touch up” to obtain her money. Therefore, Bella cannot be criminally responsible as an aider to the unlawful killing. To be criminally responsible under CCQ, s 7(1)(b) or (c); CCWA, s 7(b) or (c), Bella must know the offence committed or know that the offence might be committed: Borg v The Queen [1972] WAR 194 at 199. If it could be argued that Bella aided Chloe to unlawfully kill Owen, Bella would need to know that Chloe intended to do grievous bodily harm or kill Owen: R v Lowrie [2000] 2 Qd R 529; [1999] QCA 305 at 531-​532 (Qd R), at [4]‌-​[5] per Thomas JA. Knowing that a “touch up” is intended is not enough to be equated to grievous bodily harm: R v Lowrie [2000] 2 Qd R 529; [1999] QCA 305, 536-​537 (Qd R) at [16] per McPherson JA; and R v Keenan (2009) 236 CLR 397; [2009] HCA 1 at [98]. Bella, Ava and Chloe did not counsel each other at the beginning to unlawfully kill Owen because they had hoped to still pick up some future modelling work from Owen, who obviously would be no good to them dead. Therefore, Bella is not criminally responsible for the unlawful killing as a counsellor.

Bella, Ava and Chloe had the common intention of prosecuting an unlawful purpose –​that is, to give Owen a “touch up”, from which it can be inferred that there would be physical violence, perhaps a punch-​up or fisticuffs.4 The offence actually committed was the stabbing, which caused the unlawful killing. Criminal responsibility under CCQ, s 8; CCWA, s 8(1) requires a connection between the unlawful purpose and the offence, and it is an objective test: R v Keenan (2009) 236 CLR 397; [2009] HCA 1 at [102] and [114]-​[115]. The objective test hinges on the meaning of “probable consequence”, which has been interpreted as not a consequence more likely to have happened than not, nor a consequence that is barely possible, but a consequence that is more than a real possibility or chance: Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34 at [56]-​ [61]. More recently, in EAGD v Western Australia (No 2) [2014] WASCA 68, Buss JA at [89] stated that

4

The use of the word “touch up” in this problem question was inspired by the High Court decision in R v Keenan (2009) 236 CLR 297; [2009] HCA 1 at [98].

Chapter 15

Is Bella criminally responsible for the unlawful killing under CCQ, s 8; CCWA, s 8(1)?

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“probable consequence” equated to “could well have happened”. The defence counsel for Bella will argue that the stabbing that caused the unlawful killing went beyond the common unlawful purpose because the level of harm exceeded a “touch up”. Bella and Chloe both went inside Owen’s home without any weapons, and they planned to obtain the money that Owen owed them, but still get future modelling work, which suggests that the level of harm intended was not life threatening. This is distinguishable from R v Keenan (2009) 236 CLR 397; [2009] HCA 1 at [120] because in that case it could be inferred that the accused persons planned to do serious harm because they wanted to punish the victim for threatening to go to the police and wanted to make sure that the victim could not in fact go to the police. Thus, a probable consequence of their common purpose would be serious injury by any means, including a baton, cosh or knife. Chloe’s action in grabbing a knife from Owen’s kitchen and stabbing Owen several times was a dynamic change to their common plan because the offence exceeded the common intention of giving Owen a “touch up” to induce him to give them their money. Chloe’s acts go beyond the common plan and the other parties should not be criminally responsible for it: Markby v The Queen (1978) 140 CLR 108; [1978] HCA 29 at 112 (CLR) at [6]‌per Gibbs ACJ. Thus, it is arguable that the unlawful killing from the stabbing was not a probable consequence of their common purpose.5 Bella would not be criminally responsible for the unlawful killing (either murder or manslaughter) of Owen under CCQ, s 8; CCWA, s 8(1). Is Bella criminally responsible for the unlawful killing under CCQ; CCWA, s 9? As mentioned above, Bella, Ava and Chloe counselled each other to give Owen a “touch up”, which has been interpreted to mean an assault. In the prosecution of the assault, an unlawful killing occurred and the question is whether Bella is criminally responsible for the unlawful killing under CCQ; CCWA, s 9, which extends the criminal responsibility of counsellors. For the purposes of this provision it is immaterial that a different offence is actually committed or that the offence is committed in a different way to that counselled. As with CCQ, s 8; CCWA, s 8(1), CCQ; CCWA, s 9 hinges on the interpretation of “probable consequence”. The acts constituting the offence (the stabbing) are not a probable consequence of carrying out the counsel (touch up to obtain their money) because the level of harm from the stabbing exceeded the purpose. Consequently, Bella would not be criminally responsible for the unlawful killing of Owen under CCQ; CCWA, s 9.

5

If, however, the unlawful killing was a probable consequence of the unlawful purpose to commit assault against Owen, Bella would be guilty of manslaughter rather than murder: Bardsley v The Queen (2004) 29 WAR 338; [2004] WASCA 251 at [46].

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Did Bella withdraw from the common purpose? As discussed above, Bella was a key participant in the assault and she did not communicate a withdrawal, take steps to prevent the assault or counterbalance her earlier acts: CCWA, s 8(2); and R v Menniti [1985] 1 Qd R 520 at 524, 526-​527 and 534-​535. Thus, Bella has not withdrawn from the assault. If the common purpose had extended to the unlawful killing of Owen, and Bella was criminally responsible for it, a key issue would be whether she had withdrawn from the common purpose. Bella told Chloe to put the knife down, as Owen would be no good to them dead, but Chloe did not listen. Bella’s comment to Chloe to put the knife down as well as discontinuing to pin Owen down does not communicate to Chloe and Ava that she is withdrawing from their common plan: CCWA, s 8(2)(a) and (b). Further, Ava has not taken all reasonable steps to prevent Owen from being stabbed to death: CCWA, s 8(2)(c). There may be a tenuous argument that Bella has undone the benefit of her earlier aid by releasing Owen, but this is unlikely to be successful because he is still unable to get up and defend himself against Chloe: R v Menniti [1985] 1 Qd R 520 at 536-​537. Overall, Bella has not withdrawn from either the assault or unlawful killing.

According to CCQ, s 10; CCWA, s 10(1), an accessory after the fact must know that the other person has committed an offence. They must also receive or assist the other person to help them escape detection or punishment. Bella saw Chloe stab Owen to death. Bella took the knife from Chloe, cleaned it up and left it on a bench in Dan’s garage, thereby destroying the blood on the knife as evidence and making it more difficult for the police to find the knife. Bella is criminally responsible for the unlawful killing of Owen as an accessory after the fact. Note that CCQ, s 10A and R v Barlow (1997) 188 CLR 1 do not apply here because Bella is criminally responsible as an accessory after the fact to the unlawful killing under CCQ, s 10; CCWA, s 10(1), and not criminally responsible under CCQ, s 7(1); CCWA, s 7; or CCQ, s 8; CCWA, s 8(1). As such, her maximum penalty in Queensland is life imprisonment: CCQ, s 545(1); and her maximum penalty in Western Australia is imprisonment for 14 years: CCWA, s 562(2)(a). Is Bella liable to circumstances of aggravation of “in company” or being associated with a “criminal organisation” for the assault or the unlawful killing? Bella, for the same reasons as Chloe, is not liable to circumstances of aggravation of “in company” or being associated with a “criminal organisation” for the assault. Bella was not the executor in the unlawful killing, so the circumstances of aggravation do not apply to her.

Chapter 15

Is Bella criminally responsible for the unlawful killing as an accessory after the fact?

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R v Ava Is Ava criminally responsible for the assault as an enabler and/​or counsellor? Ava drove Bella and Chloe to Owen’s house in a panel van to help them give Owen a “touch up”, get the $20,000. Ava parked the panel van 20 metres along the street and she was not present at the crime scene. Ava is a getaway driver and her role is similar to that of Borg, who was told to take off quickly and drove away with the lights off: Borg v The Queen [1972] WAR 194. As a result, Ava will be criminally responsible for the assault as an enabler: CCQ, s 7(1)(b); CCWA, s 7(b). If the prosecution feel that Ava may not be liable as an enabler or counsellor, the prosecution may be successful under CCQ, s 8; CCWA, s 8(1), which is based on an objective test. According to Kiefel J in R v Keenan (2009) 236 CLR 397; [2009] HCA 1 at [102], there are three questions: 1.

Do the parties have a common intention to prosecute an unlawful purpose?

2.

Have the parties committed an offence?

3.

Is the offence of such a nature that it is a probable consequence of the unlawful purpose?

Pursuant to CCQ; CCWA, s 9, it is immaterial if the offence committed was different to that counselled, or committed in a different way to that counselled, so long as the offence committed was a probable consequence of the offence counselled. As discussed above, Ava, Bella and Chloe agreed to give Owen a “touch up” and, as a result, have counselled each other to commit an assault. Ava knew Owen would be home alone on Sunday afternoon between 3-​5 pm, playing an online game called Fashion World, so they decided to drop by his house around that time. Thus, Ava is criminally responsible as a counsellor for the assault: CCQ, s 7(1)(d); CCWA, s 7(d). According to CCQ, s 10; CCWA, s 10(1), an accessory after the fact must know that the other person has committed an offence. They must also receive or assist the other person to help them escape detection or punishment. Ava was told about Bella and Chloe assaulting Owen. Ava has hidden evidence and not told the police, making it more difficult for the police to charge Bella and Chloe. Ava is criminally responsible for the assault of Owen as an accessory after the fact. Is Ava criminally responsible for the unlawful killing? For the same reasons as Bella, Ava is not criminally responsible for the unlawful killing as an executor or counsellor. Ava is not an aider to the unlawful killing because she was not present at the crime scene and did not positively encourage the killing of Owen. Criminal responsibility under CCQ, s 7(1); CCWA, s 7 is subjectively ascertained. Ava was an enabler for the assault, but was she an enabler for the unlawful killing? Ava did not know and could not

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reasonably suspect that Chloe would unlawfully kill Owen. Their plan was to just give Owen a “touch up” to obtain their money. Thus, Chloe is not criminally responsible as an enabler for the unlawful killing. For the same reasons as in the case of Bella above, Ava is not criminally responsible for the unlawful killing under CCQ, s 8; CCWA, s 8(1); or CCQ; CCWA, s 9. Is Ava criminally responsible for the unlawful killing as an accessory after the fact? As discussed above, CCQ, s 10; CCWA, s 10(1) are the key provisions on this issue. While Ava drove the panel van to Dan’s home, Bella and Chloe told Ava that Chloe had stabbed Owen to death. Thus, Ava knows that Chloe has committed the unlawful killing. Ava may not have known this before she received Bella and Chloe into her panel van, but she took them to Dan’s home and hid the panel van in his garage for a couple of weeks after the crime, which may have delayed the apprehension of Bella and Chloe. As a result, Ava is criminally responsible for the unlawful killing as an accessory after the fact, and the maximum penalty would be same as discussed above for Bella. Is Ava liable to circumstances of aggravation of “in company” or being associated with a “criminal organisation” for the assault or the unlawful killing? Ava was not the executor in either the assault or the unlawful killing, so the circumstances of aggravation do not apply to her. Is Dan an accessory after the fact for the unlawful killing?

Dan has received Ava, Bella and Chloe into his home and permitted Ava to park her panel van in his garage for a couple of weeks. Dan also found the knife (murder weapon) on the bench in his garage and put it in his fishing tackle box, thinking it was one of his fishing knives. Dan’s acts may have delayed the apprehension of Ava, Bella and Chloe. However, on the facts, Dan does not know that Ava, Bella and Chloe have committed an offence, and thus he is not criminally responsible as an accessory after the fact under CCQ, s 10; CCWA, s 10(1).

Critical thinking questions 1.

What are the strengths and weaknesses of the CCQ and CCWA in identifying the principal parties to offences as executors, enablers, aiders, counsellors and procurers? Can you think of a simpler approach to categorising the parties?

Chapter 15

Dan did not have a common plan with Ava, Bella and Chloe to give Owen a “touch up”, obtain the money owed. Thus, he is not criminally responsible for either the assault under CCQ, s 7(1); CCWA, s 7, or the unlawful killing under CCQ, s 7(1); CCWA, s 7; or CCQ, s 8; CCWA, s 8(1) or CCQ; CCWA, s 9.

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2.

Do you think it is easier for the prosecution to mount a case for an accused person’s criminal responsibility under CCQ; CCWA, s 7 or 8? On what elements in these provisions does your answer hinge?

3.

What challenges arise when interpreting the expression “probable consequence” in CCQ, ss 8 and 9(1); CCWA, ss 8(1) and 9(1)? Can you think of a way of drafting these provisions so that they do not include the element of “probable consequence”?

4.

Should the legislature in Queensland insert a provision in the CCQ setting out what is required for a party to “withdraw” from an offence?

5.

Should the legislature in Western Australia insert a provision in the CCWA that is the equivalent of CCQ, s 10A?

6.

In the digital age, what types of carriers are likely to be used as innocent agents?

7.

Drawing on contextual considerations, why do you think spousal immunity exists for accessories after the fact in Western Australia, but not in Queensland? Why do you think there is no spousal immunity for co-​conspirators?

8.

Do you think the equivocality test that is used to separate an attempt from mere preparation could play a role in determining whether there is a conspiracy?

9.

Should the criminal law punish conspiracy where the co-​ conspirators have not done any harm?

10.

Should co-​ conspirators be categorised in a similar manner to principal offenders? If yes, what labels would you attribute to them?

11.

Using R v Ngo [2010] 1 Qd R 193; [2009] QSC 212 as a case study, when is it appropriate for a prosecutor to argue a conspiracy offence rather than an indictable offence?

Readings • T Crofts, K Burton, R Martin, T Nisbet and S Tarrant, Criminal Codes: Commentary and Materials (7th ed, Thomson Reuters/​ Lawbook Co., 2018) Ch 9. • T Crofts, LexisNexis Study Guide: Criminal Law in Queensland and Western Australia (LexisNexis, Sydney, 2nd ed, 2014) Ch 12. • K Burton, LexisNexis Questions and Answers: Criminal Law in Queensland and Western Australia (2nd ed, LexisNexis, Sydney, 2015) Ch 9.

CHAPTER 16 Sentencing Learning outcomes .........................................................................   527 [16.10] Principles............................................................................   528 [16.10] Purposes of sentencing...............................................................  528 [16.20] Sentencing factors.....................................................................  528 [16.150] Instinctive synthesis and two-​stage sentencing approaches................  538 [16.160] Sentencing options..................................................................  539 [16.170] Elements toolbox..............................................................   540 [16.180] Guide to problem solving..................................................   542 Revision questions .........................................................................   543 Problem question ...........................................................................   544 Answers to revision questions .......................................................   544 Answer to problem question .........................................................   546 Critical thinking questions .............................................................   550 Reading ...........................................................................................   551

Learning outcomes This chapter will enable you to: • Identify the purposes of sentencing • Identify mitigating and aggravating sentencing factors

• Understand when to apply the additional factors for serious violent offences and sexual offences in Queensland • Identify sentencing options1

1

Note that the Crimes Act 1914 (Cth), Juvenile Justice Act 1992 (Qld) and Young Offenders Act 1994 (WA) are not covered in this chapter. Appealing against a sentence has also not been canvassed in this chapter.

Chapter 16

• Distinguish the instinctive and two-​stage approaches to balancing sentencing factors

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PRINCIPLES Purposes of sentencing [16.10] 

In Queensland, the purposes of sentencing outlined in the Penalties and Sentences Act 1992 (Qld) (PSA (Qld)), s 9(1) are to: • punish the offender in a just way (just deserts and principle of proportionality); • help the offender to be rehabilitated; • deter the offender or other person from committing the same or similar offences (individual and general deterrence); • send a message that the community (via the court) denounces the offender’s conduct; and • protect the community from the offender. While these purposes of sentencing are not specifically listed in the Sentencing Act 1995 (WA) (SA (WA)), they are imported from the common law. The purposes of sentencing overlap and are not considered in isolation. They provide guidelines for appropriate sentencing. The appropriate sentence and range of sentences are determined by the judge and not the prosecutor, the prosecutor is not “a surrogate judge”: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 at [29].

Sentencing factors Principle of proportionality The High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 stated at 472-​473 that the appropriate sentence is proportionate to the gravity of the crime in all the circumstances of the case. When assessing the circumstances of the case, there are many sentencing factors to be considered. An offender should not be subjected to a sentence so excessive that it would be considered a “crushing sentence” or a sentence so disproportionate to other sentences for similar offences that there would be a “justifiable sense of grievance”: Postiglione v The Queen (1997) 189 CLR 295 at 304 per Dawson and Gaudron JJ. [16.20] 

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Community protection [16.25] 

Community protection must always be a consideration during sentencing:  PSA (Qld), s  9(1)(e); SA (WA), s  6(4)(b). The High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 478 stated that as disastrous as the consequences of a sentence of penal servitude may be, it must always be balanced against community protection. The tragedy of the prisoner’s life, even if it “must excite sympathy for them, has to be balanced against the exigencies of the criminal law especially the protection of society”. This includes mental abnormalities which may entitle the prisoner to an excuse but still may be “such that the prisoner is a danger to society when he is at large”. Aggravating factors and circumstances of aggravation Aggravating factors are those which increase an offender’s culpability and punishment:  PSA (Qld), s  9(2)(g); SA (WA), ss  6(2)(c) and 7(1). While not providing examples of aggravating factors, the Western Australian legislation specifies that a plea of not guilty, the offender’s criminal record, and a previous sentence that has not achieved its purpose are not examples of aggravating factors: SA (WA), s 7(2)(a)-​(c). There is a difference between aggravating factors and circumstances of aggravation.“Aggravating factors” is a broad group of factors, which includes, but is not limited to circumstances of aggravation. Therefore, all circumstances of aggravation are aggravating factors, but not all aggravating factors are circumstances of aggravation. Whether there is a circumstance of aggravation is determined by a jury. On the other hand, an aggravating factor is determined by a sentencing judge: SA (WA), s 7(1); Zimmerman v Western Australia [2009] WASCA 211 at [60] per Pullin JA; see also Wade v The Queen [2001] WASCA 252. Circumstances of aggravation are circumstances that increase the punishment the offender is liable to as compared to if the circumstances did not exist. Pursuant to CCWA, ss 6(2)(b) and 7(3)(b), circumstances of aggravation may be “taken into account as general sentencing considerations, whether or not they are charged in the indictment, provided they are proven”:  Zimmerman v Western Australia [2009] WASCA 211 at [14] per McLure P, Owen JA agreeing at [35], Pullin JA agreeing at [67].

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[16.30] 

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If the court increases the sentence because of an aggravating factor, it must state this in open court: PSA (Qld), s 10. Mitigating factors [16.40] 

In contrast to aggravating factors, mitigating factors decrease an offender’s culpability and punishment: PSA (Qld), s 9(2)(g); SA (WA), s 8(1). An example of a mitigating factor is assistance to law enforcement authorities: PSA (Qld), ss 9(2)(i), 13A and 13B; SA (WA), s 8(5). If the court reduces the sentence because of a mitigating factor, it must state this in open court: PSA (Qld), s 10; SA (WA), s 8(4) and (5). Maximum penalty [16.50] 

The maximum penalty is intended for the worst category of cases: Ibbs v The Queen (1987) 163 CLR 447 at 451-​452; see also R v Chivers [1993] 1 Qd R 432 at 436-​437 per Thomas J.The High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 478 stated that this “does not mean that a lesser penalty must be imposed if it is possible to envisage a worse case: ingenuity can always conjure up a case of greater heinousness”. Where a case does not fall within the worst category of cases, the sentencing judge tailors the sentence, taking into account the established range of comparable sentences and the minimum terms under that range: Western Australia v BLM (2009) 256 ALR 129; [2009] WASCA 88 at [43] per Wheeler and Pullin JJA. Character [16.60] 

In Queensland, when determining the character of an offender, the court may consider: • previous convictions –​number, nature, seriousness, date and relevance; • significant contributions made to the community; and • other relevant matters: PSA (Qld), s 11. In Ryan v The Queen (2001) 206 CLR 267 at [23]-​[25] per McHugh J, the High Court took a two-​staged approach to using character as a sentencing principle, based on the offender’s otherwise good character. This approach is relevant in both Queensland and Western Australia. • The first stage requires the court to determine whether the accused person is of otherwise good character.

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In assessing this, the court does not consider the offence for which the offender is charged, the Court only looks at the offender’s previous conduct.

• The second stage requires the court to consider the weight that must be attached to the otherwise good character. The weight will vary from case to case. The youth of an offender should be considered because rehabilitating a youthful mind serves to protect the community:  R v Lovell [1999] 2 Qd R 79 at 83 per Byrne J, Davies JA agreeing at 80, Pincus JA agreeing at 81. The court will also consider the previous convictions of an offender and determine whether their current offence is an uncharacteristic aberration, or shows a continuing disobedience of the law: Veen v The Queen (No 2) (1988) 164 CLR 465. Fast-​track guilty plea A court must take a fast-​track plea of guilty into account and may reduce the sentence as a result: PSA (Qld), s 13(1); SA (WA), s 9AA(2). The reduction in sentence is based on when the accused person pleaded guilty or informed the law enforcement agency of their intention to do so, the earlier the plea the greater the reduction in sentence should be: PSA (Qld), s 13(2); SA (WA), s (3). A court must state in open court that it took the plea of guilty into account in determining the sentence: PSA (Qld), s 13(3); SA (WA), s 9AA(5). If the court does not reduce the sentence for a plea of guilty, it must state this in the open court and the reasons for not reducing the sentence: PSA (Qld), s  13(4). Failure to do this in open court may be considered by an appellate court if there is an appeal against the sentence: PSA (Qld), s 13(5). In Zimmerman v Western Australia [2009] WASCA 211 at [40], Owen JA stated that: A plea of guilty will always decrease the culpability of the offender or decrease the extent to which the offender should be punished but this does not automatically translate into a reduction in sentence.

In circumstances where a guilty plea demonstrates remorse and acceptance of responsibility, the guilty plea will be a mitigating factor for those reasons: Cameron v The Queen (2002) 209 CLR 339 at [14] per Gaudron, Gummow and Callinan JJ. It has been suggested that pleading guilty should be a mitigating factor based on the pragmatic ground that a “fast-​track” plea saves the community

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[16.70] 

532      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

the expense of conducting a contested trial: Siganto v The Queen (1998) 194 CLR 656 at [22] per Gleeson CJ, Gummow, Hayne and Callinan JJ. However, this community expense-​saving rationale must be rejected, as it suggests that the accused person who pleads not guilty should be punished for costing the community the expense of a trial. An accused person should never be punished for exercising their right to plead not guilty and have a fair trial. It was determined that the correct rationale for why a fast-​track guilty plea should be a mitigating factor is because the accused person should be rewarded for demonstrating their willingness to facilitate the course of justice: Cameron v The Queen (2002) 209 CLR 339 at [13]-​[15] and [22]; see also R v Corrigan [1994] 2 Qd R 415 at 416 per Macrossan CJ and Lee JJ, Davies JA agreeing at 419. In Cameron v The Queen, it was stated that (at [14]): [in circumstances where a guilty plea] depends on factors other than remorse and acceptance of responsibility, [mitigation shall] be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.

The amount of reduction is discretionary, but fast-​track pleas of guilty generally attract a reduction of between 20% and 35%, depending on the circumstances:  SA (WA), s  9AA(4); Moody v French (2008) 36 WAR 393; [2008] WASCA 67 at [37] per Steytler P,Wheeler, McLure and Buss JJA and H v Western Australia (2006) 163 A Crim R 151; [2006] WASCA 53 at [9]‌ per Steytler P. Pleading not guilty is never an aggravating factor that increases the penalty, because an accused person is entitled to put the prosecution to its proof: Siganto v The Queen (1998) 194 CLR 656 at [22]-​[23] per Gleeson CJ, Gummow, Hayne and Callinan JJ; Cameron v The Queen (2002) 209 CLR 339 at [13]. Remorse [16.80] 

Remorse is more than just being sorry, remorse shows that the offender is not only sorry for what they have done, but they will also try not do it again in the future. They want to become reformed and set a good example for others in the community. “[A]‌spontaneous and immediate expression of remorse conducive to reform” is a mitigating factor that results in the penalty being discounted: Cameron v The Queen (2002) 209 CLR 339 at 359 [65](4) per Kirby J. However, while remorse reinforces the belief that the offender has decided to reform to avoid the same conduct in the future and that they will thereby set a good example for others in the community, it is not a precondition for

CHAPTER  16  SENTENCING      533

a discount for a plea of guilty: Cameron v The Queen (2002) 209 CLR 339 at 360 [65](5) per Kirby J. Assistance to law enforcement agencies [16.90] 

A sentencing judge should consider whether the accused has co-​ operated and been of assistance to law enforcement agencies, which is a mitigating factor: PSA (Qld), ss 13A and 13B; SA (WA), s 8(5). Co-​ operation that may be considered mitigating is anything that demonstrates the offender’s willingness to facilitate the course of justice, such as: • co-​operation during police interviews; or • clearly communicating intentions regarding pleas and trial; or • properly participating in legal aid schemes; or • giving evidence to police and prosecutors; or • testifying against co-​conspirators. See: Postiglione v The Queen (1997) 189 CLR 295 at 298, 302 and 304 per Dawson and Gaudron JJ, Kirby agreeing at 343; Heferen v The Queen (1999) 106 A Crim R 89 at [12] per Anderson J. In determining whether the offender’s assistance to law enforcement agencies should result in a discount of penalty is largely based on the value of the assistance and the offender’s motivation for providing the assistance. In particular, a sentencing judge will consider whether the assistance: • demonstrates remorse or contrition; • substantially helps the apprehension and conviction of other offenders;  and • is likely to endanger or harm the offender.

Delay [16.100] 

Delay between committing the offence and sentencing is not in itself a mitigating factor, unless it is unfair to the offender. There are two obvious cases where this may apply: • The first is where there is a significant delay between the date of apprehension, or first indications of a prosecution, and sentencing.

This exposes the offender to a significant time of uncertainty, stress, reputation damage and deprived liberty;

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See TLM v Western Australia [2009] WASCA 106 at [16] per Pullen JA for Wheeler and Miller JA.

534      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

• The second is where the time between commission of the offence and sentence is sufficient to enable the court to see that the offender has become rehabilitated or that the rehabilitation process has made good progress. See: R v Law; Ex parte Attorney General (Qld) [1996] 2 Qd R 63 at 66 for The Court; and Monteleone v Versperman [2009] WASC 349 at [10]-​[17] per Hall J; Scook v The Queen (2008) 185 A Crim R 164; [2008] WASCA 114 at [31] per McLure JA. Ill health [16.110] 

The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. However, an offender’s ill health cannot be a licence to commit offences. Ill health is only a mitigating factor where imprisonment will be a greater burden upon the person of ill health than a healthy person and will have grave adverse effects on the offender’s ill health. This may apply to cases such as a person infected with AIDS, whose condition gets worse while in prison: R v Smith (1987) 44 SASR 587 at 580 per King CJ for Cox and O’Loughlin JJ. Intoxication and drug addiction [16.120] 

In Queensland, voluntary intoxication by drugs or alcohol is not a mitigating factor, such as in the case of burglary and rape offences committed after “a bout of heavy drinking”. Even though the ingestion of alcohol very frequently explains why an offence occurred, it is very unusual for it to be a mitigating factor: PSA (Qld), s 9(9A); R v Rosenberger; Ex parte Attorney-​General [1995] 1 Qd R 677 at 678-​679 for the Court. In Western Australia, if the offender is intoxicated and the offence is serious, the sentence is not likely to be reduced or will only be reduced marginally: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [43] per French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ. Drug addiction may not only show that rehabilitation will be challenging, but may also explain that the reason the offender committed the offence was because of desperation, rather than as a primary choice: R v Hammond [1997] 2 Qd R 195 at 199-​200 for the Court. There are very rare occasions where the Court is satisfied that there is something which, whether wholly or partly, excuses the taking of drink or drugs. In such cases, the Court will treat that circumstance as going in

CHAPTER  16  SENTENCING      535

mitigation. For example, where a drunken man who had committed an armed robbery showed that his alcoholism was the result of the painful disease from which he suffered: R v Redenbach (1991) 52 A Crim R 95 at 99 per the Court. Hardship –​family responsibilities [16.130] 

The court will consider an offender’s family responsibilities, the hardship that will be inflicted on the family, as well as personal and sentimental factors. However, undue weight should not be attached to them and an offender should not be able to hide behind them. Particular circumstances may be mitigating, such as a parent needing to care for young children, or needing to care for children with “a serious debilitating illness which in all probability will have a marked effect on the life expectancy of those two children”: R v Tilley (1991) 53 A Crim R 1 at 3-​4 per Thomas J; R v Costi [2001] QCA 404 at 6, 8 per Williams  JA for Chesterman and Mullins JJ. Compensation The payment of compensation to a victim may be mitigating, especially when it represents a considerable solace to the victim, and a considerable personal burden to the offender, who may have had to borrow money and/​or had to make significant sacrifices to make the payment. However, an offender who is able to pay compensation is not able to buy themselves out of imprisonment, if that is an appropriate sentence. A sentencing court should deliver justice equally to the rich and poor: R v Tran; Ex parte Attorney-​General (Qld) (2002) 128 A Crim R 1; [2002] QCA 21 at [14] per McMurdo P and Douglas J, Thomas JA agreeing at [21]. The sentencing factors considered in Queensland under the PSA (Qld) and in Western Australia under the SA (WA) are outlined in Tables 16.1-​16.4. Table 16.1: Sentencing factors in Queensland Queensland Sentencing factors

Penalties and Sentences Act 1992 (Qld)

Imprisonment as a last resort and preference given to allowing offenders to stay in the community

s 9(2)(a)

Maximum and any minimum penalty

s 9(2)(b)

Nature of the offence and seriousness of the offence including physical, mental and emotional harm done to a victim and effect on a child under 16 years who may have been directly exposed to or witnessed the offencea

s 9(2)(c)

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[16.140] 

536      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Queensland Sentencing factors

Penalties and Sentences Act 1992 (Qld)

Extent to which the offender is to blame for the offenceb

s 9(2)(d)

Any damage, injury or loss caused by the offender

s 9(2)(e)

Offender’s character, age and intellectual capacity

s 9(2)(f)

Any aggravating or mitigating factor

s 9(2)(g)

Participation in a criminal organisation

s 9(2)(ga)

Prevalence of the offence

s 9(2)(h)

Assistance given by the offender to law enforcement agencies in the investigation of the offence or other offences

s 9(2)(i)

Time spent in custody for the offence before being sentenced

s 9(2)(j)

Sentences imposed on or served by the offender in another State or a Territory for an offence committed at about the same time as the offence

s 9(2)(k)

Sentences imposed but not served by the offender

s 9(2)(l)

Sentences that the offender must serve because of the revocation of orders made under an Act for contraventions of conditions

s 9(2)(m)

If the offender is subject to a community based order, their compliance with the order

s 9(2)(n)

If the offender is on bail and has made an undertaking to attend rehabilitation, treatment, program etc, the offender’s completion

s 9(2)(o)

If the offender is an Aboriginal or Torres Strait Islander, submissions made by a representative of the community justice group about the offender’s relationship with the community, cultural considerations, services or programs offered by the community justice group

s 9(2)(p)

Anything else prescribed by the Penalties and Sentences Act 1992 (Qld)

s 9(2)(q)

Any other relevant circumstances

s 9(2)(r)

Table 16.2:  Sentencing factors in Queensland for violent offences Queensland Sentencing factors for violent offences

Penalties and Sentences Act 1992 (Qld)

Section PSA (Qld), s 9(2)(a), [Imprisonment as a last resort and preference given to allowing offenders to stay in the community] is subject to the sentencing of an offender for any offences that involved the use of, or counselling or procuring the use of, or attempting or conspiring to use, violence against another person;

ss 9(2A), (3)

Risk of physical harm to the community if a custodial sentence not imposed

s 9(3)(a)

Need to protect the community from risk of physical harm

s 9(3)(b)

Personal circumstances of any victim of the offence

s 9(3)(c)

Circumstances of the offence –​death, injury, loss or damage

s 9(3)(d)

Nature or extent of violence intended or used

s 9(3)(e)

Disregard for public safety

s 9(3)(f)

Past record of the offender –​number of previous offences, attempted rehabilitation

s 9(3)(g)

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Queensland Sentencing factors for violent offences

Penalties and Sentences Act 1992 (Qld)

Offender’s antecedents, age and character

s 9(3)(h)

Offender’s remorse or lack of remorse

s 9(3)(i)

Medical, psychiatric, prison or other reports relating to the offender

s 9(3)(j)

Anything else about the safety of the community the court considers relevant

s 9(3)(k)

Table 16.3:  Sentencing factors in Queensland for sexual offences against a child under 16 years Queensland Sentencing factors for sexual offences against a child under 16 years

Penalties and Sentences Act 1992 (Qld)

Section PSA (Qld), s 9(2)(a), [Imprisonment as a last resort and preference given to allowing offenders to stay in the community], is subject to sentencing an offender for any offence of a sexual nature committed in relation to a child under 16 years

ss 9(4), (6)

Effect on the child

s 9(6)(a)

Age of the child

s 9(6)(b)

Nature of the offence –​physical harm or threat of physical harm to the child or another

s 9(6)(c)

Need to protect the child or other children from the risk of offender reoffending

s 9(6)(d)

Need to deter similar behaviour by other offenders

s 9(6)(e)

Prospects of rehabilitation –​medical or psychiatric treatment

s 9(6)(f)

Offender’s antecedents, age and character

s 9(6)(g)

Offender’s remorse or lack of remorse

s 9(6)(h)

Medical, psychiatric, prison or other reports relating to the offender

s 9(6)(i)

Anything else about the safety of children under 16 years the court considers relevant

s 9(6)(j)

Table 16.4: Sentencing factors in Western Australia Sentencing factors

Sentencing Act 1995 (WA)

Proportionality, a sentence imposed on an offender must be commensurate with the seriousness of the offence

s 6(1)

Seriousness of the offence with regard to: • statutory penalty for the offence;

s 6(2)(a)

• circumstances of the commission of the offence –​vulnerability of the victim

s 6(2)(b)

• any aggravating factors

s 6(2)(c)

• any mitigating factors

s 6(2)(d)

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Western Australia

538      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Western Australia Seriousness of offence does not prevent a reduction for: • any mitigating factors

s 6(3)(a)

• any rule of law as to the totality of sentences.

s 6(3)(b)

Subject to s 58 [Imprisonment until fine paid], Imprisonment only if:

ss 6(4) and 6(6)

• justified based on seriousness of offence; or

s 6(4)(a)

• the protection of the community requires it.

s 6(4)(b)

Any relevant guidelines in a guideline judgment

s 6(5)

a See also R v H (1993) 66 A Crim R 505. Sections 24-​26 of the SA (WA) provide further information on the appropriate content and use of victim impact statements. b See also Lowe v R (1984) 154 CLR 606.

Instinctive synthesis and two-​stage sentencing approaches [16.150]  Regardless

of the sentencing approach adopted by the Court, the approach must always be transparent; transparency is always a fundamental requirement: Markarian v The Queen (2005) 228 CLR 357 at [36] per Gleeson CJ, Gummow, Hayne and Callinan JJ. Two-​stage sentencing [16.153] 

In the past, some courts have favoured an approach referred to as a “sequential” or “two-​tiered” or “two-​stage” approach to sentencing. This approach is commonly described as the “scientific” or “mathematical” approach, where the sentence represents the sum of the components: • The first stage is objective and identifies a pre-​determined range of sentences. • The second stage adjusts the pre-​determined range of sentences based on increments and decrements for sentencing factors. This approach has been criticised for being prone to errors, and departing from principle, because it singles out sentencing factors and attributes a numerical or proportionate value to some of them while leaving others unaltered. Further, the adjustments made in the second stage may be over-​ emphasised because they may have already been considered in the first stage. Overall, the two-​stage approach distorts the complex process of balancing sentencing factors: Wong v R (2001) 207 CLR 584 (Wong v R) at [74]-​[76] per Gaudron, Gummow and Hayne JJ. The High Court in Wong v R and Markarian v The Queen (2005) 228 CLR 357 at [37]-​[39] per Gleeson CJ, Gummow, Hayne and Callinan JJ did not favour the two-​stage approach to sentencing, but rather advocated the “instinctive synthesis”.

CHAPTER  16  SENTENCING      539

Instinctive synthesis [16.155] 

Instinctive synthesis is meant to capture the principle that the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. The use of the word “instinctive” is not meant to mask the role of the sentencing court in a cloud of mystery but rather requires the court to consider all relevant sentencing factors to arrive at a single sentence. In doing so, the court assimilates the factors, and balances many different and conflicting sentencing factors while ensuring that its reasons for the sentence are transparent and accessible: Wong v R at [74]-​[76].

Sentencing options [16.160] 

The various sentencing options in Queensland and Western Australia are indicated in Diagrams 16.1 and 16.2, respectively.

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Diagram 16.1: Queensland –​Sentencing options under the Penalties and Sentences Act 1992

540      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Elements toolbox Queensland [16.170] In

Queensland, the general sentencing factors that a court must take into account in PSA (Qld), s 9(2) are: 1.

Imprisonment and removal from community as a last resort.

2.

Maximum and any minimum penalty.

3.

Nature of the offence.

4.

Seriousness of the offence. – Physical, mental or emotional harm done to a victim; and – Effect of the offence on any child under 16 years who was exposed to or witnessed the offence.

5.

Extent to which the offender is to blame.

6.

Any damage, injury or loss caused.

7.

Offender’s character, age and intellectual capacity.

8.

Any aggravating or mitigating factors.

9.

Participation in a criminal organisation

10.

Prevalence of the offence.

11.

Assistance given by the offender to law enforcement agencies in the investigation of the offence or other offences.

12.

Time spent in custody for the offence before being sentenced.

13.

Sentences imposed on or served by the offender in another State or a Territory for an offence committed at about the same time as the current offence.

14.

Sentences imposed on but not served by the offender.

15.

Sentences the offender must serve because of the revocation of orders made under an Act for contraventions of conditions.

16.

If the offender is subject to a community based order, their compliance with the order.

17.

If the offender is on bail and has made an undertaking to attend rehabilitation, treatment, a program etc, the offender’s completion of that undertaking.

18.

If the offender is an Aboriginal or Torres Strait Islander, submissions made by a representative of the community justice group about the offender’s relationship with the community, cultural considerations, services and programs in which the community justice group participates.

CHAPTER  16  SENTENCING      541

19.

Anything else prescribed by the PSA (Qld); and

20.

Any other relevant circumstances.

Note that other sentencing factors, in addition to the general sentencing factors, are considered for violent offences and sexual offences against a child under the age of 16 years. However, imprisonment and removal from community as a last resort is not considered in these offences: PSA (Qld), ss 9(2A), (3), (4) and (6).

Western Australia In Western Australia, the sentencing factors to be considered in SA (WA), ss 6(1)-​(5)  are: 1.

Proportionality, a sentence imposed on an offender must be commensurate with the seriousness of the offence

2.

Seriousness of the offence.

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Diagram 16.2: Western Australia –​Sentencing options under the Sentencing Act 1995

542      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

3.

Statutory penalty for the offence.

4.

Circumstances of the commission of the offence –​for example, the vulnerability of the victim.

5.

Aggravating factors.

6.

Mitigating factors –​for example, a plea of guilty and assistance to law enforcement agencies.

7.

Seriousness of an offence  –​this does not prevent a reduction in sentence where there are mitigating factors or any rule of law as to the totality of sentences.

8.

Subject to s 58 [Imprisonment until fine paid], imprisonment only if it is justified based on the seriousness of the offence or it is required to protect the community.

9.

Any relevant guidelines in a guideline judgment (refer to SA (WA), s 143).

Guide to problem solving [16.180] When attempting a problem-​based question on balancing aggravating and mitigating sentencing factors, use the legislation to guide the order of the issues. Add in the relevant case law as you consider each provision. Queensland 1.

Does the offence involve violence against another person?



If yes, apply:

– PSA (Qld), ss 9(2)(b)-​(q); AND



– PSA (Qld), ss 9(3)(a)-​(k).



Note that PSA (Qld), s 9(2)(a), imprisonment and removal from community as a last resort, does not apply to sentencing violent offenders: PSA (Qld), s 9(2A)

2.

Is the offence of a sexual nature against a child under the age of 16 years?



If yes, apply:

– PSA (Qld), ss 9(2)(b)-​(q); AND



– PSA (Qld), ss 9(4), (5) and (6)(a)-​(j).



Note that PSA (Qld), s 9(2)(a), imprisonment and removal from community as a last resort, does not apply to sentencing these sexual offenders: PSA (Qld), s 9(4)

3.

Does the offence involve child-​images?

CHAPTER  16  SENTENCING      543



If yes, apply

– PSA (Qld), ss 9(2)(b)-​(q); AND



– PSA (Qld), ss 9(7)(a)-​(g).



Note that PSA (Qld), s 9(2)(a), imprisonment and removal from community as a last resort, does not apply to sentencing these sexual offenders: PSA (Qld), s 9(6A)

4.

If the offence does not fall within options 1, 2 or 3 above, then only apply PSA (Qld), s 9(2)(a)-​(q).

Western Australia In Western Australia, apply SA (WA), ss 6-​9AA to any type of offence. These provisions canvass the following issues: 1.

2.

What is the seriousness of the offence? (a)

What is the statutory penalty for the offence?

(b)

What are the circumstances of the offence?

(c)

What are the aggravating factors?

(d)

What are the mitigating factors?



(i)

Plea of guilty.



(ii)

Assistance to law enforcement agencies.

(e)

Is the totality of the sentences appropriate? (Leave this issue out if you are asked not to comment on the quantum of the sentence.)

Is imprisonment justified? (a)

Seriousness of offence.

(b)

Protection of community.

1.

What are the purposes of sentencing?

2.

When is the maximum sentence given to an offender?

3.

Is a plea of guilty the same as remorse?

4.

Is a plea of guilty made at a late stage a mitigating factor?

5.

If an accused person chooses not to plead guilty, is this an aggravating factor?

6.

What approach does a court use to balance the competing sentencing factors?

7.

Why is the two-​stage approach criticised?

8.

In Queensland, is it preferable to allow an offender to stay in the community if they have committed a sexual offence against a child under 16 years of age?

9.

Can a rich person pay their way out of imprisonment?

10.

Is a fine a sentencing option?

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Revision questions

544      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Problem question Thorne is aged 35 and married with three children. He has a good work history as a plumber, has no previous convictions and is currently studying as an external student. During the past year, Thorne committed four rapes against Jasmine, Lilly, Rose and Daisy, who are all in their thirties. The rapes occurred at dawn on walkways in secluded public parks and Thorne packed a spare set of clothes in his car to help facilitate his getaway. The rapes involved digital penetration and did not risk pregnancy or sexually transmitted diseases. The victim impact statements suggest that while the four victims did not receive permanent physical injuries, they all endured severe bruising across their faces and necks, were verbally threatened, and Daisy suffered devastating psychological consequences. Rose has been forced to exercise indoors at a female-​only gym, while Jasmine is unable to trust men and has put on weight because she is too scared to use the walkways. Lilly moved to Switzerland because she no longer felt safe in Brisbane. Thorne originally denied his involvement in the sexual offences. He only stopped committing the offences when he was apprehended, which occurred when a member of the public observed Thorne’s car leaving a remote park in Brisbane in the early hours of the morning. Thorne consented to his photograph being taken and he provided blood for DNA analysis. Then shortly after he pleaded guilty to all offences, which saved the prosecution much time in gathering evidence and saved the victims from reliving the traumatic episodes during the trial process. Thorne was only remorseful because he had been caught, exposed by the media and was likely to receive a lengthy jail term. During an interview with police, Thorne apologised to the victims, his family and police. Thorne has a mixed personality disorder and has recurrent sexual urges to attack non-​consenting women. In Dr Garden’s opinion, Thorne has a positive prognosis for treatment and rehabilitation, and he should be able to be released back into the community in the future. Assume that you are Justice Willow presiding over this matter, discuss any relevant sentencing factors. Do not discuss the quantum of the sentence.

Answers to revision questions 1.

Pursuant to the PSA (Qld), s 9(1), the purposes of sentencing are to: – punish the offender in a just way (just deserts and proportionality);

CHAPTER  16  SENTENCING      545



– help the offender to be rehabilitated;



– deter the offender or other person from committing the same or similar offences (individual and general deterrence);



–



– and protect the community from the offender.

send a message that the community (via the court) denounces the offender’s conduct;

2.

The maximum penalty is intended for the worst category of cases: Ibbs v The Queen (1987) 163 CLR 447 at 451-​452; see also R v Chivers [1993] 1 Qd R 432. The maximum penalty may be given even if it is possible to imagine a worse case: Veen v The Queen (No 2) (1988) 164 CLR 465 at 478.

3.

A plea of guilty by an offender may show that they are sorry for what they have done, and that they accept responsibility for their actions: Cameron v The Queen (2002) 209 CLR 339 at [13] and [22]; see also R v Corrigan [1994] 2 Qd R 415. On the other hand, remorse shows that the accused is not only sorry for what they have done, but also that they will not do it again in the future. They want to be reformed and set a good example for others in the community.

4.

Yes, a plea of guilty should always be considered, regardless of when it is made by an offender, but the earlier it is made the greater the discount on sentence: Cameron v The Queen (2002) 209 CLR 339 at [13] and [22]; see also R v Corrigan [1994] 2 Qd R 415.

5.

No, pleading not guilty is not an aggravating factor. An accused person is entitled to put the prosecution to its proof: Siganto v The Queen (1998) 194 CLR 656; and Cameron v The Queen (2002) 209 CLR 339 at [13].

6.

Instinctive synthesis approach: Wong v R (2001) 207 CLR 584, at [74]-​ [76] per Gaudron, Gummow and Hayne JJ; Markarian v The Queen (2005) 228 CLR 357 at [37]-​ [39] per Gleeson CJ, Gummow, Hayne and Callinan JJ.

7.

The two-​ stage approach to balancing sentencing factors has been criticised for being prone to errors, and departing from principle, because it singles out sentencing factors and attributes a numerical or proportionate value to some of them while leaving others unaltered. Further, the adjustments made in the second stage may be overemphasised because they may have already been considered in the first stage. Overall, the two-​stage approach distorts the complex process of balancing sentencing factors: Wong v R (2001) 207 CLR 584 at [74]-​[76] per Gaudron, Gummow and Hayne JJ.

8.

No. Unless there are exceptional circumstances, an offender who has committed a sexual offence against a child under 16 years must serve a term of imprisonment: PSA (Qld), s 9(4).

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While these purposes are not specifically outlined in the SA (WA), they are imported from the common law.

546      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

9.

No, a rich person cannot buy themselves out of imprisonment. A sentencing court should deliver justice equally to both rich and poor: R v Tran; Ex parte Attorney-​General (Qld) (2002) 128 A Crim R 1; [2002] QCA 21.

10.

Yes, a fine is a sentencing option: PSA (Qld), Pt 4; SA (WA), Pt 8.

Answer to problem question The facts are based on R v Colless [2009] QDC 283; [2010] QCA 26. In Queensland, as rape involves violence to another person, the PSA (Qld), s 9(3) factors should be applied before PSA (Qld), ss 9(2)(b)-​(q) factors. In answering the problem question the following issues should be considered. Queensland Should Willow J take into account the personal circumstances and emotional harm done to Jasmine, Lilly, Rose and Daisy? Yes: PSA (Qld), s 9(3)(c) and 9(2)(c)(i). The victim impact statements are critical here. As a result of being raped or sexually penetrated without consent, Daisy has suffered a significant depressive disorder. All the victims were verbally threatened, which contributes to their emotional harm. Rose has been forced to exercise indoors at a female-​ only gym, while Jasmine is unable to trust men and has put on weight because she is too scared to use the walkways. Lilly moved to Switzerland because she no longer felt safe in Brisbane. Should Willow J take into account the injuries and physical harm done to members of the public –​that is, to Jasmine, Lilly, Rose and Daisy? Yes: PSA (Qld), s 9(3)(d) and 9(2)(c)(i). The victim impact statements suggest that the four victims were physically abused (raped or sexually penetrated without consent, and bruised across their faces and necks). Should Willow J take into account the nature and extent of violence used; the seriousness of the rape; the risk of physical harm to any members of the community if a term of imprisonment is not imposed; and the need to protect the community from that risk? Yes: PSA (Qld), ss 9(3)(a), (e), 9(1)(e), 9(2)(c) and 9(2)(e); Veen v The Queen (No 2) (1988) 164 CLR 465 at 478; R v Chivers [1993] 1 Qd R 432 and R v H (1993) 66 A Crim R 505. In Queensland, rape is a serious offence with a maximum penalty of life imprisonment: CCQ, s 349. Justice Willow must take into account the

CHAPTER  16  SENTENCING      547

maximum and minimum penalty when determining the sentence: PSA (Qld), s 9(2)(b). Note that the PSA (Qld), s 9(2)(a) specifies that imprisonment should be used as a last resort. However, in any event, this does not apply where the offence involved violence and physical harm to another person: PSA (Qld), s 9(2A) and (3). Justice Willow must consider the risk of physical harm to any members of the community if a term of imprisonment is not imposed; and the need to protect the community from that risk: PSA (Qld), s 9(3)(a) and (b). A term of imprisonment is appropriate in these circumstances, but Willow J should note that these offences involved digital penetration and did not risk pregnancy or sexually transmitted diseases. Should Willow J take into account Thorne’s disregard for the interests of public safety? Yes: PSA (Qld), s 9(3)(f). Thorne randomly attacked Jasmine, Lilly, Rose and Daisy at dawn on walkways in secluded public parks. Should Willow J take into account Thorne’s age, character and the fact that he had no previous convictions? Yes: PSA (Qld), ss 9(3)(g) and (h), 9(2)(f) and 11; see also Ryan v The Queen (2001) 206 CLR 267 and Veen v The Queen (No 2) (1988) 164 CLR 465. Thorne is aged 35 and married with three children. He has a good work history as a plumber, has no previous convictions (see Veen v The Queen (No 2) (1988) 164 CLR 465 for the relevance of previous convictions) and is currently studying as an external student. Thus, Thorne is of otherwise good character and the sentencing judge needs to determine the weight attached to this factor. More facts need to be ascertained about Thorne’s family responsibilities: R v Costi [2001] QCA 404; see also PSA (Qld), s 9(2)(g). Should Willow J take into account Thorne’s mixed personality disorder and recurrent sexual urges to attack non-​consenting women?

Should Willow J take into account the assistance Thorne gave to law enforcement agencies? Yes: PSA (Qld), s 9(2)(h); see also R v Postiglione (1997) 189 CLR 295. Note that Thorne originally denied his involvement in the sexual offences. He only stopped committing the offences when he was apprehended, which occurred when a member of the public observed Thorne’s car leaving a remote park in Brisbane in the early hours of the morning. Thorne has shown a willingness to facilitate the course of justice, such as being co-​operative by consenting to his photograph being taken, providing DNA and pleading guilty to all offences,

Chapter 16

Yes, Dr Garden’s opinion about Thorne’s mixed personality disorder and his recurrent sexual urges to attack non-​ consenting women may be considered if it is in a medical report: PSA (Qld), s 9(3)(j). These medical conditions impact on the extent that Thorne can be blamed: PSA (Qld), s 9(2)(d); see also Lowe v R (1984) 154 CLR 606.

548      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

which saved the prosecution much time in gathering evidence and saved the victims from reliving the traumatic episodes during the trial process. Should Willow J take into account Thorne’s attendance at a treatment and rehabilitation program? Yes, if Thorne completes this program: PSA (Qld), s 9(2)(o). In Dr Garden’s opinion, Thorne has a positive prognosis for treatment and rehabilitation, and he should be able to be released back into the community in the future if he completes a sex offender’s program. At this stage, he has not completed the program. Should Willow J take into account Thorne’s plea of guilty? Yes: PSA (Qld), s 13; see also Cameron v The Queen (2002) 209 CLR 339; and R v Corrigan [1994] 2 Qd R 415. Note the difference between remorse and a plea of guilty. Thorne decided to plead guilty because his lawyer advised that the case against him was very strong, he had been exposed by the media and was likely to receive a lengthy custodial sentence. Does this demonstrate a lack of remorse?: PSA (Qld), s 9(3)(i). During an interview with police, Thorne apologised to the victims, his family and police. Should Willow J take into account the need to deter and denounce Thorne’s conduct, and protect the community? Yes. The offences occurred at dawn on walkways in secluded public parks, and other people should be deterred from committing such acts: PSA (Qld), s 9(1)(c). The court should make it clear to the community that it denounces this kind of conduct, especially given the media attention to Thorne’s behaviour: PSA (Qld), s 9(1)(d). The court needs to protect the community: PSA (Qld), s 9(1)(e). Western Australia Should Willow J take into account the seriousness of the offence? Yes: SA (WA), ss 6(1) and 6(2); see also Veen v The Queen (No 2) (1988) 164 CLR 465 at 478. Should Willow J take into account the statutory penalty for sexually penetrating another person without consent? Yes: SA (WA), s 6(2)(a); see also Veen v The Queen (No 2) (1988) 164 CLR 465 at 478. In Western Australia sexually penetrating another person without consent is also a serious offence with a maximum penalty of 14 years imprisonment: CCWA, s 325. Should Willow J take into account the circumstances of the sexual offences, including the vulnerability of Jasmine, Lilly, Rose and Daisy?

CHAPTER  16  SENTENCING      549

Yes: SA (WA), ss 6(2)(b) and 24-​26. The victim impact statements suggest that the four victims were physically abused (raped or sexually penetrated without consent, and bruised across their faces and necks). As a result of being raped or sexually penetrated without consent, Daisy has suffered a significant depressive disorder. They were all verbally threatened, which contributes to their emotional harm. Rose has been forced to exercise indoors at a female-​ only gym, while Jasmine is unable to trust men and has put on weight because she is too scared to use the walkways. Lilly moved to Switzerland because she no longer felt safe in Brisbane. Should Willow J take into account any aggravating factors? Yes: SA (WA), ss 6(2)(c) and 7. There are no extra aggravating factors on these facts. The physical and emotional harm done to Jasmine, Lilly, Rose and Daisy has already been considered. Should Willow J take into account any mitigating factors? Yes: SA (WA), ss 6(2)(d), 6(3)(a) and 8.

Assistance to law enforcement agencies: SA (WA), ss 8(1), 8(4) and 8(5); see also R v Postiglione (1997) 189 CLR 295 and TLM v Western Australia [2009] WASCA 106 at [16] per Pullen JA. Note that Thorne originally denied his involvement in the sexual offences. He only stopped committing the offences when he was apprehended, which occurred when a member of the public observed Thorne’s car leaving a remote park in Brisbane in the early hours of the morning. Thorne has shown a willingness to facilitate the course of justice, such as being co-​ operative by consenting to his photograph being taken, providing DNA and pleading guilty to all offences, which saved the prosecution much time in gathering evidence and saved the victims from reliving the traumatic episodes during the trial process. Age and character: see Ryan v The Queen (2001) 206 CLR 267; SA (WA), s 6(2)(d). Thorne is aged 35 and is married with three children. He has a good work history as a plumber, has no previous convictions (see Veen v The Queen (No 2) (1988) 164 CLR 465 for the relevance of previous convictions) and is currently studying as an external student. Thus, Thorne is of otherwise good character and the sentencing judge needs to determine the weight that should be attached to this factor.

Chapter 16

Plea of guilty: SA (WA), ss 8(1) and 8(4); see also Cameron v The Queen (2002) 209 CLR 339. Note the difference between remorse and a plea of guilty. Thorne decided to plead guilty because his lawyer advised that the case against him was very strong, he had been exposed by the media and was likely to receive a lengthy custodial sentence. During an interview with police, Thorne apologised to the victims, his family and police.

550      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Completion of a rehabilitation program: SA (WA), s 6(2)(d). In Dr Garden’s opinion, Thorne has a positive prognosis for treatment and rehabilitation, and he should be able to be released back into the community in the future if he completes a sex offender’s program. At this stage, he has not completed the program. What should Willow J take into account in determining whether imprisonment is a justifiable penalty for Thorne? The seriousness of the offence and the protection of the community: SA (WA), ss 6(4)(a) and 6(4)(b). The seriousness of the offence has been considered above. The community should be protected from Thorne because he suffers from a mixed personality disorder and has recurrent sexual urges to attack non-​ consenting women. The offences occurred at dawn on walkways in secluded public parks, and other people should be deterred from committing such acts. The court should make it clear to the community that it denounces this kind of conduct, especially given the media attention to Thorne’s behaviour.

Critical thinking questions 1.

Do you think any additional sentencing factors should be included in the PSA (Qld) or SA (WA)? If yes, justify your additional sentencing factor/​s with reference to case law or the purposes of sentencing.

2.

In which order do you think the purposes of sentencing should be prioritised by a sentencing court? Justify your answer.

3.

Should the sentencing factors change during the course of the 21st century?

4.

How (if at all) should mitigating and aggravating sentencing factors be weighted?

5.

Reflect on the strengths and weaknesses of the instinctive approach to sentencing. Can you think of a better approach to balancing competing sentencing factors?

6.

What are the strengths and weaknesses of the two-​ stage approach to sentencing?

7.

Why do you think violent offences and sexual offences against children under 16 years have been singled out in the Queensland legislation to have their own set of sentencing factors?

8.

What should a court consider in determining whether to record a conviction?

9.

Reflect on the sentencing options currently available. Can you think of any other options?

CHAPTER  16  SENTENCING      551

10.

Do you think all offences should have mandatory sentencing? Should mandatory sentencing be restricted to certain offences? In your answer consider the pros and cons of mandatory sentencing.

Reading

Chapter 16

• K Burton, LexisNexis Questions and Answers: Criminal Law in Queensland and Western Australia (2nd ed, LexisNexis, Sydney, 2015) Ch 13.

INDEX A Aboriginal and Torres Strait Islander people arrest of, [2.190] bail of, [2.280] defence of honest claim of right to property by, [13.40], [13.90] detention, questioning and investigation of, [2.190] sentencing factors and, [16.170] Accident criminal negligence negates excuse of, [11.70], [11.90] defence or excuse, whether, [11.10] eggshell skull rule and, [11.60], [11.90] elements of, [11.90] “event”, meaning of, [11.40] guide to problem solving, [11.100] intention, relevance and determination of, [11.80], [11.90] legislation, [11.40], [11.50] manslaughter and defence/​excuse of, [4.20], [4.350]–​[4.370] meaning of, [11.50] motive, relevance and examples of, [11.80], [11.90] murder and defence/​excuse of, [4.20] objective reasonable foreseeability, [11.50] onus of proof, [11.10], [11.50] unavailable as excuse for criminal negligence, [11.70], [11.90] Act of independent will act, [11.20], [11.90] meaning of, [11.20] scope of, [11.20] automatism, [11.30], [12.40], [12.100] basis of defence of, [12.40] cause of, [12.100] examples of, [11.30] insanity and, [12.40], [12.100] intoxication and, [12.100] meaning of, [12.100] criminal negligence negates excuse of, [11.70], [11.90] defence or excuse, whether, [11.10] elements of, [11.90] guide to problem solving, [11.100] “independent of will”, meaning of, [11.30] legislation, [11.20] manslaughter and excuse of, [4.20] murder and excuse of, [4.20] onus of proof, [11.10]

unavailable as excuse for criminal negligence, [11.70], [11.90] Aggravated sexual coercion —​see Sexual coercion Aggravated sexual penetration without consent —​ see Sexual penetration without consent Arrest Aboriginal and Torres Strait Islander people, of, [2.190] children, of, [2.200] citizens' powers of, [2.70]–​[2.90] force, use of, [2.50], [2.90]–​[2.120] form of, [2.10] guide to problem solving, [2.340] intoxicated people, of, [2.220] meaning and effect of, [2.10] persons with impaired capacity, [2.210] purposes of, [2.10] Queensland, in, [2.10], [2.20], [2.50], [2.70], [2.90], [2.130], [2.150], [2.190]–​[2.230], [2.330] citizens’ powers of arrest, [2.70], [2.90] detention for questioning and investigation, [2.130] force, use of, [2.90] questioning Aboriginal and Torres Strait Islander people, [2.190] questioning children, [2.200] questioning intoxicated people, [2.220] questioning persons with impaired capacity, [2.210] rights during questioning and investigation, [2.150], [2.190]–​[2.230], [2.330] with a warrant, [2.50] without a warrant, [2.20], [2.70] questioning and investigation of suspects, [2.130]–​[2.240], [2.330] —​ see also Questioning and investigation of suspects rights during questioning and investigation, [2.160]–​[2.240], [2.330] steps to effective arrest, [2.10] Western Australia, in, [2.10], [2.30], [2.40], [2.60], [2.80], [2.100]–​[2.120], [2.140], [2.160]–​[2.220], [2.240], [2.330] citizens' powers of arrest, [2.80] detention for questioning and investigation, [2.140] force, use of, [2.100]–​[2.120] issue of summons, [2.60] prosecution notice, [2.60]

554      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Arrest — cont questioning Aboriginal and Torres Strait Islander people, [2.190] questioning children, [2.200] questioning intoxicated people, [2.220] questioning persons with impaired capacity, [2.210] rights during questioning and investigation, [2.160]–​[2.220], [2.240], [2.330] with a warrant, [2.60] without a warrant, [2.30], [2.40], [2.60], [2.140] with a warrant, [2.10], [2.50], [2.60] content of warrant, [2.50] execution, [2.50] reasons for, [2.50] wrong person arrested, [2.50] without a warrant, [2.10]–​[2.40], [2.60], [2.70], [2.80], [2.140] “reasonably suspects”, meaning of, [2.20], [2.40], [2.80] reasons for, [2.20], [2.30]

Attempts “attempt” defined, [14.10], [14.60], [14.70] elements of, [14.110] general, [14.10] generally, [14.10]–​[14.120] guide to problem solving, [14.120] impossibility in fact or at law, [14.100] intention, relevance and proof of, [14.30], [14.40], [14.80] maximum penalties, [14.90], [14.110] “offence” defined, [14.40], [15.30] omission, whether, [14.40] onus and standard of proof, [14.20], [14.30] overt act, [14.80] preparatory acts vs immediately connected acts, [14.50]–​[14.70] equivocality test, [14.65] last act test, [14.63] Norval’s reasonable step test, [14.68] Queensland, in, [14.60] Western Australia, in, [14.70] specific, [4.380], [9.10], [14.10] drink spiking, [14.10] murder, [4.380], [9.10], [14.10]

Assault accused, of, by victim, [10.40], [10.80], [10.100], [10.170] aircraft crew, on, [5.120] attempt to rob and, [7.220]–​[7.240] common, [5.70], [5.270] consent, and, [9.30] continuing, [10.80] defined, [5.10], [10.80] elements of, [5.20]–​[5.60], [5.130], [5.270], [10.80] application of force, [5.20], [5.270] lack of consent, [5.40], [5.270] mental element, [5.50], [5.270] threat or attempt to apply force, [5.30], [5.270], [10.80] unlawfulness, [5.60], [5.270], [10.80] grievous bodily harm or death, [9.40] guide to problem solving, [5.280] indecent, [6.10], [6.140], [6.180], [6.190]–​[6.220], [6.290], [6.300] —​ see also Indecent assault mistake of fact, [10.80] occasioning bodily harm, [5.80], [5.270] provocation as excuse for, whether, [9.10], [9.310], [9.330], [10.40], [10.100] self-​defence and, [10.40], [10.80], [10.100], [10.170] serious, [5.90], [5.100], [5.270] sexual, [6.10], [6.180]–​[6.230], [6.290], [6.300] —​ see also Sexual assault unlawful, causing death, [4.20], [4.350], [4.370] —​ see also Unlawful assault/​striking causing death with intent, [5.110], [5.270] with intent to interfere with freedom of trade or work, [5.120]

Automatism —​ see also Act of independent will basis of defence of, [12.40] cause of, [12.100] examples of, [11.30] insanity and, [12.40], [12.100] intoxication and, [12.100] meaning of, [12.100]

B Bail Aboriginal and Torres Strait Islander person, of, [2.280] child on murder charge, of, [2.270] conditions of release on, [2.250], [2.310], [2.320] generally, [2.10], [2.250]–​[2.340] guide to problem solving, [2.340] murder charge, where, [2.270], [2.290], [2.300], [2.330] adult, [2.270] child, [2.270] grounds for refusal, [2.290] power to grant, [2.260]–​[2.290] court, [2.270]–​[2.290] police officer, [2.260], [2.280], [2.290] watch-​house manager, [2.260] purpose of, [2.250] Queensland, in, [2.260]–​[2.280], [2.310], [2.330] conditions of release on, [2.310] power to grant, [2.260]–​[2.280] refusal to grant, [2.260], [2.280], [2.330] refusal of, [2.250]–​[2.300], [2.330] grounds for, [2.280]–​[2.300]

INDEX      555

Bail — cont Western Australia, in, [2.260], [2.270], [2.290], [2.300], [2.320], [2.330] conditions of release on, [2.320] murder charge, where, [2.270], [2.290], [2.300], [2.330] power to grant, [2.260], [2.270], [2.290] refusal to grant, [2.270], [2.290], [2.300], [2.330] when granted, [2.250] Burglary/​housebreaking components of, [7.250], [7.260], [7.300] consent, relevance of, [7.250], [7.290], [7.320] elements of, [7.570] guide to problem solving, [7.580] meaning of, [7.10] Queensland, in, [7.250]–​[7.290], [7.330]–​[7.360], [7.570] armed and in company, [7.360] “break” defined, [7.280] commission of offence, [7.350] “dwelling” defined, [7.270] elements, [7.570] “enters” defined, [7.270] intention to commit offence, [7.340] lack of consent, whether necessary, [7.250], [7.290] maximum penalties, [7.260] “premises” defined, [7.270] Western Australia, in, [7.250], [7.300]–​[7.370], [7.570] armed and in company, [7.360] commission of offence, [7.350] elements, [7.570] “enters or is in” defined, [7.310] intention to commit offence, [7.340] lack of consent, [7.320] mandatory minimum sentences, [7.370] maximum penalties, [7.300] “place” defined, [7.310]

C Children arrest of, [2.200] bail of, where murder charge, [2.270] definition, [2.200] detention, questioning and investigation of, [2.200] effect of immaturity on criminal responsibility, [12.10], [12.160]–​[12.180] age levels, [12.160], [12.170] manslaughter of, [4.40], [4.50] after born alive, [4.50] unborn, [4.40], [4.50] murder charge and bail of, [2.270] murder of, [4.40], [4.50] after born alive, [4.50] unborn, [4.40], [4.50]

sexual offences against, [6.10], [6.240]–​[6.260], [6.290], [6.300] age of child, [6.10], [6.240]–​[6.260] guide to problem solving, [6.300] Queensland, in, [6.10], [6.240], [6.250], [6.290] Western Australia, in, [6.10], [6.240], [6.260], [6.290] unborn, as subject of manslaughter or murder, [4.40], [4.50] Complaint and summons meaning and effect of, [2.10] where unable to serve, [2.50] Compulsion —​ see Duress/​compulsion Consent age of, for sexual behaviour, [6.10], [6.240] assault consent, and, [9.30] lack of, and, [5.40], [5.270] capacity to, [6.60] coercion, [6.80] deceit and fraud in obtaining, [6.100]–​[6.120] meaning of, [6.50], [6.70] relevance of, [6.10]–​[6.30], [6.50], [6.170], [6.180], [6.290], [7.250], [7.290], [7.320], [7.530] burglary/​housebreaking, [7.250], [7.290], [7.320] damage to property, [7.530] rape, [6.10]–​[6.30], [6.50], [6.290] sexual assault, [6.180], [6.290] sexual coercion, [6.170] sexual offences generally, [6.10] sexual penetration without consent, [6.20], [6.50], [6.290] sexual offences and, [6.10], [6.240], [6.270], [6.280]–​[6.300] age of consent for sexual behaviour generally, [6.10], [6.240] age of consent where victim under care, supervision or authority of offender, [6.10], [6.240] persons incapable of giving consent, [6.10], [6.270], [6.280]–​[6.300] sexual offences against persons incapable of giving, [6.10], [6.270], [6.280]–​[6.300] guide to problem solving, [6.300] Queensland, in, [6.10], [6.270], [6.290] Western Australia, in, [6.10], [6.280], [6.290] sexual offences without, [6.10]–​[6.300] —​ see also Children; Indecent assault; People of impaired capacity; Rape; Sexual assault; Sexual coercion; Sexual penetration without consent submission and intimidation as means to obtain, [6.50], [6.70]

556      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Consent— cont threats as means to obtain, [6.90] validity of, [6.50]–​[6.120] withdrawal of, [6.130]

elements establishing, [1.10], [1.50], [1.60] enablers and aiders, [15.68] exceptions to general rule of, [13.10]–​[13.30], [13.140] generally, [1.50] general rule of, [13.10]–​[13.30], [13.140] immaturity, effect of, on, [12.10], [12.160]–​[12.180] age levels, [12.160], [12.170] impaired capacity, effect of, on, [12.10]–​[12.170] insanity, effect of, on, [12.10]–​[12.30], [12.50] intention, relevance and determination of —​ see Intention intoxication, effect of, on, [12.10], [12.130], [12.150], [12.170], [12.180] lack of defence as element establishing, [1.60] mental element (fault), [1.60] mental incapacity, effect of, on, [12.10]–​[12.170] motive, relevance and examples of, [11.80], [11.90] parties, of —​ see Parties to offences physical element (conduct), [1.60] presumption of innocence until proven guilty, [1.70], [2.250], [2.290] proof of —​ see Proof recklessness, determination of, [11.80] weak victim, where, [4.120], [4.140], [4.350] —​ see also “eggshell skull rule”

Conspiracy agreement, [15.13], [15.15] double prosecution and, [15.20] double punishment and, [15.20] elements of, [15.120] examples of offences, [15.10]–​[15.20] guide to problem solving, [15.130] maximum penalties, [15.10], [15.20] meaning of, [15.10] verdicts for co-​conspirators, [15.10], [15.13] Criminal Codes of Queensland and Western Australia enactment and adoption of, [1.20] interpretation of, [1.30], [1.40] common law as aide in, [1.30], [1.40] rules of, [1.40] other statutory law and, [1.30], [1.50] purpose of, [1.30], [1.40] structure of, [1.50], [1.60] Criminal damage —​ see Damage to property Criminal justice system functions of, [1.10] nature of criminal law, [1.10] Criminal negligence —​ see also Homicide; Manslaughter; Murder; Unlawful assault/​striking causing death accident, whether excuse for, [11.70], [11.90] act of independent will, whether excuse for, [11.70], [11.90] act or omission causing bodily harm or danger, [11.70] common-​sense, [11.70] duty to preserve human life, [10.70] legislation, [11.70] Criminal responsibility abnormal victim, where, [4.120], [4.140], [4.350] —​ see also “eggshell skull rule” contravention of statutory instrument and, [13.20], [13.140] defective victim, where, [4.120], [4.140], [4.350] —​ see also “eggshell skull rule” defences negating, [1.10] —​see also Defences eggshell skull rule, [11.90] —​see also “abnormal victim”; “defective victim”; “weak victim”

D Damage to property consent, relevance of, [7.530] destroy or damage by fire, [7.560] elements of offence, [7.510]–​[7.550], [7.570] “destroys”/​“damages”, meaning of, [7.540] “likely”, meaning of, [7.520] “property” defined, [7.550] “unlawful acts” defined, [7.530] “wilfully” defined, [7.520] excuse of defence of person or property from injury, [7.530] general offences, [7.480]–​[7.500] criminal damage, [7.480], [7.500] wilful damage, [7.480], [7.490] guide to problem solving, [7.580] maximum penalties, [7.490], [7.500], [7.560] specific offences, [7.480] Defences —​ see also Excuses; Justifications accident, [4.20], [4.350]–​[4.370], [11.10], [11.40]–​[11.100] —​ see also Accident act of independent will, [4.20], [11.10]–​[11.30], [11.70], [11.90], [11.100], [12.40], [12.100] —​see also Act of independent will

INDEX      557

Defences — cont automatism, [11.30], [12.40], [12.100] —​ see also Automatism contravention of statutory instrument, to, [13.10], [13.20] diminished responsibility, [4.330], [4.390], [9.10], [9.20], [9.200]–​[9.220], [9.310], [9.330] —​ see also Diminished responsibility disproving, [1.70], [1.90], [9.20] double prosecution, [3.10]–​[3.130], [3.170], [3.180], [3.210] —​ see also Double prosecution double punishment, [3.130]–​[3.160], [3.190]–​[3.210] —​ see also Double punishment drug offence, to, [8.40] excuses distinguished, [3.20], [9.20], [11.10] honest claim of right to property, [13.10]–​ [13.130], [13.230], [13.240] —​see also Honest claim of right to property ignorance of law and, [13.10], [13.20], [13.100], [13.140], [13.200] insanity, [1.60], [1.90], [4.20], [9.200], [12.10]–​[12.100], [12.140], [12.170], [12.180] —​ see also Insanity intoxication, [12.10], [12.100]–​[12.150], [12.170], [12.180], [13.180] —​see also Intoxication lack of, [1.60] mistake of fact, [6.20], [6.150], [12.110], [12.150], [13.10], [13.150]–​[13.240] —​ see also Mistake of fact proof of —​ see Proof provocation, [4.330], [4.390], [9.10]–​[9.190], [9.310], [9.330], [10.40], [10.100], [10.150] —​ see also Provocation self-​defence, [1.60], [1.90], [4.20], [4.330], [4.390], [9.230], [10.10]–​[10.180], [12.20] —​ see also Self-​defence Detention for questioning and investigation —​ see Questioning and investigation of suspects Diminished responsibility “abnormality of mind”, [9.200] effect of defence of, [9.20], [9.220], [9.310] elements of, [9.310] guide to problem solving, [9.330] murder and defence of, [4.330], [4.390], [9.20], [9.220], [9.310] onus of proof, [9.20], [9.210] prerequisite for defence of, [9.210] reduction of murder charge to manslaughter by reason of, [4.330], [4.390] [9.20], [9.220], [9.310] Double prosecution 25-​year offences, [3.70]–​[3.90], [3.170] examples of, [3.80]

retrial after tainted acquittal, [3.70], [3.90], [3.170] administration of justice offences, [3.90]–​[3.120] examples of, [3.90], [3.110] alternative verdicts, [3.30], [3.40] compelling evidence, [3.120], [3.170] conspiracy and, [15.20] defence under, [3.10] presumptions, [3.10] elements of, [3.170], [3.180] evidentiary burdens, [3.10] excuse distinguished from defence of, [3.20] finality in first trial before apply rules of, [3.30] fresh evidence, [3.70], [3.120], [3.170] fundamental principal, [3.05] generally, [3.10]–​[3.130], [3.170], [3.180], [3.210] general verdict, [3.50] guide to problem solving, [3.210] judge’s duty, [3.10] murder, retrial for, [3.70], [3.90] partial verdict, [3.50] proof of, [3.20] purpose of defence of, [3.130] Queensland, in, [3.10]–​[3.90], [3.170], [3.210] 25-​year offences, [3.70]–​[3.90], [3.170] administration of justice offences, [3.90] alternative verdicts, [3.30], [3.40] elements, [3.170] exceptions to rules, [3.70]–​[3.90], [3.170] finality, [3.30] general or partial verdict, [3.50] guide to problem solving, [3.210] murder, retrial for, [3.70], [3.170] onus of proof, [3.20] purposes of rules, [3.10] rules, [3.60] rules of, [3.10], [3.60]–​[3.120], [3.170], [3.180] exceptions to, [3.70]–​[3.120], [3.170] outline of, [3.60] purposes of, [3.10] serious offences, [3.100]–​[3.120] defined, [3.110] “tainted acquittal” defined, [3.120] Western Australia, in, [3.10]–​[3.60], [3.100]–​[3.120], [3.180], [3.210] administration of justice offences, [3.100]–​[3.120] alternative verdicts, [3.30], [3.40] elements, [3.180] exceptions to rules, [3.100]–​[3.120] finality, [3.30] general or partial verdict, [3.50] guide to problem solving, [3.210] onus of proof, [3.20] purposes of rules, [3.10] rules, [3.60] serious offence, [3.100]–​[3.120] “tainted acquittal” defined, [3.120]

558      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Double punishment conspiracy and, [15.20] death exception, [3.160], [3.190], [3.200] defence under, [3.130] elements of, [3.140], [3.150], [3.190], [3.200] “same act or omission”, meaning of and test for, [3.140] “same necessary evidence” meaning of, [3.150] generally, [3.130]–​[3.160] guide to problem solving, [3.210] interpretations “same act or omission”, meaning of and test for, [3.140] two-​step process, [3.140] meaning of, [3.140], [3.150] purpose of defence of, [3.130], [3.150] Queensland, in, [3.130], [3.160], [3.190]–​[3.210] death exception, [3.160], [3.190], [3.200] elements, [3.190] guide to problem solving, [3.210] Western Australia, in, [3.130], [3.150], [3.160], [3.190]–​[3.210] death exception, [3.160], [3.190], [3.200] elements, [3.150], [3.200] guide to problem solving, [3.210] “same necessary evidence” meaning of, [3.150] Drug offences cultivate or manufacture, [8.120], [8.160] defined, [8.120] maximum sentences, [8.160] dangerous drugs, [8.20], [8.60], [8.160] defined, [8.20] possession of, [8.60] quantities of, for purposes of maximum penalties, [8.20], [8.65], [8.160] types of, [8.20] defence to, [8.40] drug dependent person, [8.50] elements of, [8.160] excuse for, [8.40] generally, [8.10]–​[8.170] guide to problem solving, [8.170] legislation overview, [8.10] maximum sentences, [8.20], [8.50], [8.160] cultivating, [8.160] drug dependent person, relevance for, [8.50] permitting use of place, [8.160] possessing, [8.160] producing, [8.160] publishing or possessing instructions, [8.160] quantities of drug and, [8.20], [8.160] supplying, [8.160] trafficking, [8.160] place/​premises, [8.70]–​[8.100], [8.160] meaning of, [8.90] ownership, whether relevant, [8.80]

permitting use of, [8.100], [8.160] whether accused is occupier, [8.70] possession/​to possess, [8.60], [8.70], [8.160] defined and interpreted, [8.60] elements of, [8.160] maximum sentences, [8.160] ownership of place, whether relevant, [8.80] whether accused is occupier for purposes of, [8.70] produce, [8.120], [8.140]–​[8.160] defined, [8.120] elements of, [8.160] maximum sentences, [8.160] publishing instructions in order to, [8.140]–​[8.160] prohibited drugs, [8.30], [8.60], [8.160] possession of, [8.60], [8.160] types of, [8.30] prohibited plants, [8.30], [8.65], [8.160] defined, [8.30] possession of, [8.60], [8.160] Queensland, in, [8.10], [8.20], [8.40]–​[8.170] dangerous drugs, [8.20], [8.60], [8.160] defence, [8.40] drug dependent person, [8.50] guide to problem solving, [8.170] maximum sentences, [8.20], [8.160] place, [8.70]–​[8.100], [8.160] possession, [8.60]–​[8.80], [8.160] produce, [8.120], [8.140], [8.160] supply, [8.110], [8.160] trafficking, [8.130], [8.160] supply, [8.110], [8.160] defined, [8.110] elements of, [8.160] maximum sentences, [8.160] trafficking, [8.130], [8.160] elements of, [8.160] maximum sentences, [8.160] meaning of, [8.130] Western Australia, in, [8.10]–​[8.30], [8.40], [8.60]–​[8.130], [8.160], [8.170] cultivate or manufacture, [8.120], [8.160] excuse, [8.40] guide to problem solving, [8.170] maximum sentences, [8.20], [8.160] possession, [8.60]–​[8.80], [8.160] premises, [8.70]–​[8.100], [8.160] prohibited drugs, [8.30], [8.60], [8.160] prohibited plants, [8.30], [8.65], [8.160] supply, [8.110], [8.160] trafficking, [8.130], [8.160] Duress/​compulsion application of excuse of, [9.270] effect of, [9.280], [9.300] elements of excuse of, [9.310] generally, [9.20], [9.230] guide to problem solving, [9.330] onus of proof, [9.20] ordinary person, [9.290]

INDEX      559

Duress/​compulsion — cont Queensland, in, [9.20], [9.270], [9.310], [9.330] application of excuse, [9.270] effect of, [9.310] elements of excuse, [9.310] guide to problem solving, [9.330] onus of proof, [9.20] self-​defence distinguished, [9.230] Western Australia, [9.280], [9.310], [9.330] application and effect of excuse in, [9.280], [9.310] elements of excuse, [9.310] guide to problem solving, [9.330]

compulsion, [9.20], [9.230], [9.270]–​[9.330] —​ see also Duress/​compulsion defence of person or property from injury, [7.530] defences distinguished, [3.20], [9.20], [11.10] drug offence, for, [8.40] duress, [9.20], [9.230], [9.270]–​[9.330] —​ see also Duress/​compulsion extraordinary emergency, [4.20], [4.330], [9.20], [9.230], [9.240]–​[9.260], [9.310], [9.330] —​ see also Extraordinary emergency homicide, for, [4.20] ignorance of law and, [13.10], [13.20] justifications distinguished, [1.90] mistake of fact, [6.20], [6.150] —​see also Mistake of fact ordinary person, [9.290] proof of —​ see Proof provocation, [4.330], [4.390], [9.10]–​[9.190], [9.310], [9.330], [10.40], [10.100], [10.150] —​ see also Provocation self-​defence, [1.60], [1.90], [4.20], [4.330], [4.390], [9.230], [10.10]–​[10.180], [12.20] —​ see also Self-​defence

E Endangering life grievous bodily harm, [4.240], [4.280], [4.390], [5.130]–​[5.160], [5.190], [5.270], [12.130], [12.150] defined, [5.150] intentional, [4.240], [4.280], [4.390], [5.190], [5.270] liability for, [5.160], [5.270], [12.130], [12.150] guide to problem solving, [5.280] intoxication as defence to, whether, [12.130], [12.150] offences requiring specific intention, [5.130], [5.180]–​[5.200], [5.270] murder where intent to, [4.240], [4.280], [4.390] provocation as excuse for offence of, whether, [9.10] range of offences, [5.130] torture, [5.200] wounding, [5.130], [5.140], [5.170], [5.190], [5.270] intentional, [5.190], [5.270] Evidence —​ see also Proof admissibility of record of interview, [2.180], [2.190], [2.230], [2.240] compelling, and rules of double prosecution, [3.120], [3.170] criminal responsibility of parties, of, [15.120] fresh, and rules of double prosecution, [3.70], [3.120], [3.170] “same necessary evidence” meaning of, for purposes of double punishment, [3.150] Excuses —​ see also Defences; Justifications accident, [4.20], [4.350]–​[4.370], [11.10], [11.40]–​[11.100] —​ see also Accident act of independent will, [4.20], [11.10]–​[11.30], [11.70], [11.90], [11.100], [12.40], [12.100] —​see also Act of independent will

Extraordinary emergency application of excuse of, [9.240] effect of excuse of, [9.260] elements of excuse of, [9.310] generally, [4.20], [9.10], [9.230], [9.240]–​[9.260], [9.310], [9.330] guide to problem solving, [9.330] manslaughter and excuse of, [4.20] meaning of, [9.240] medical situation, where, [9.240] mistake of fact and, [9.240] murder and excuse of, [4.20], [4.330], [9.10] ordinary person, [9.290] reduction of murder charge to manslaughter by reason of, [4.20], [4.330], [9.10] self-​defence and, [9.230] test of, ordinary person, [9.250]

F Fatal offences —​ see also Homicide; Manslaughter; Murder; Unlawful assault/​striking causing death generally, [4.10]–​[4.400] Fraud conduct element of, [7.460], [7.570] benefit/​advantage, [7.460] “obtains” defined, [7.460] “property” defined, [7.460] illustrative cases, [7.470] meaning of, in relation to property offences, [7.10] mental element of, [7.410]–​[7.450], [7.570]

560      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Fraud— cont dishonesty, [7.420], [7.440], [7.450] intent to defraud, [7.430]–​[7.450] overview, [7.410] property offences involving, [7.10], [7.380]–​[7.470], [7.570], [7.580] examples of, [7.380] guide to problem solving, [7.580] meaning of fraud, [7.10] mental element, [7.410]–​[7.440] Queensland, in, [7.380], [7.390], [7.420], [7.440]–​[7.470], [7.570] Western Australia, in, [7.380], [7.400], [7.430]–​[7.470], [7.570]

Housebreaking —​ see Burglary/​ housebreaking

G

I

Grievous bodily harm —​see also Endangering life defined, [5.150] generally, [5.130]–​[5.160], [5.190], [5.270], [12.130], [12.150] intentional, [4.240], [4.280], [4.390], [5.190], [5.270] murder and, [4.240], [4.280], [4.390] liability for, [5.160], [5.270], [12.130], [12.150]

Immaturity —​ see also Children determination of capacity, [12.160] effect on criminal responsibility of, [12.10], [12.160]–​[12.180] age levels, [12.160], [12.170] guide to problem solving, [12.180] onus of proof, [12.160]

H Homicide excuses for, [4.20] generally, [4.10]–​[4.400] manslaughter —​ see Manslaughter meaning of, [4.10] murder —​ see Murder striking causing death —​see Unlawful assault/​striking causing death unlawful assault causing death —​see Unlawful assault/​striking causing death Honest claim of right to property application of defence of, [13.40] composite offence and, [13.120] elements of defence of, [13.230] exception to general rule of criminal responsibility, as, [13.10]–​[13.30] generally, [13.10]–​[13.130], [13.230], [13.240] guide to problem solving, [13.240] “honest”, meaning of, [13.60] meaning of, [13.30] mere ignorance of law distinguished from defence of, [13.100] mistake of law, whether, [13.30] “offence relating to property”, meaning of, [13.40] onus of proof, [13.30] relevant property, [13.50], [13.100]

types of entitlements within, [13.70]–​[13.110] claim of immunity from prosecution, whether, [13.100] derivative claim, [13.110] existing, [13.80] future, whether, [13.80] ignorance of law, whether, [13.100] not of recognised legal nature, whether, [13.90], [13.100] without intention to defraud, [13.130]

Impaired capacity —​ see also Immaturity; Insanity; Intoxication effect on criminal responsibility of, [12.10]–​[12.170] peopleof, [2.210], [6.10], [6.60], [6.270], [6.280]–​[6.300], [12.20] —​ see also People of impaired capacity Indecent assault aggravated, [6.140], [6.180], [6.190] elements of, [6.190]–​[6.220], [6.290] indecency, [6.190], [6.210], [6.290] mental element, [6.210], [6.220] unlawful assault, [6.190], [6.200], [6.290] generally, [6.10], [6.140], [6.180], [6.190]–​[6.220], [6.290], [6.300] guide to problem solving, [6.300] introduction of offence of, [6.10] mental element, [6.210], [6.220] Innocence presumption of, [1.70], [2.250], [2.290] Insanity automatism and, [12.40], [12.100] capacities of which deprived by reason of, [12.60]–​[12.90] control of actions, [12.60], [12.80] understanding of what doing, [12.60], [12.70] understanding of wrongfulness of act or omission, [12.60], [12.90] effect on criminal responsibility of, [12.10]–​[12.30], [12.50] elements of defence of, [9.200], [12.170]

INDEX      561

Insanity — cont generally, [1.60], [1.90], [9.200], [12.10]–​[12.100], [12.140], [12.170], [12.180] guide to problem solving, [12.180] intoxication and, [12.100], [12.140] manslaughter and defence of, [4.20] murder and defence of, [4.20] onus and standard of proof of defence of, [12.20] presumption of sanity, [12.20] Queensland, in, [9.200], [12.10]–​[12.40], [12.60]–​[12.100], [12.140], [12.170] automatism, [12.100] effect on criminal responsibility, [12.10]–​[12.30] intoxication, [12.100], [12.140] mental disease or natural mental infirmity, [9.200], [12.10], [12.30], [12.40], [12.60]–​[12.90], [12.170] onus and standard of proof of defence, [12.20] unavailability of defence, [12.60] verdict if successful defence of, [12.20] relevance of defence of, [12.20] verdict if successful defence of, [12.20] Western Australia, in, [12.10]–​[12.30], [12.50]–​[12.100], [12.140], [12.170] automatism, [12.100] effect on criminal responsibility, [12.10]–​[12.30], [12.50] intoxication, [12.100], [12.140] mental impairment, [12.10], [12.30], [12.50], [12.60]–​[12.90], [12.170] onus and standard of proof of defence, [12.20] unavailability of defence, [12.60] verdict if successful defence of, [12.20] where unavailable as defence, [12.60] where unnecessary for defence of, [12.20] Intention assault with, [5.110], [5.120], [5.270] common, of parties to offences, [15.60], [15.65], [15.120] endangering life offences requiring specific, [5.130], [5.180]–​[5.200], [5.270] fraudulent, and stealing, [7.30], [7.40], [7.80], [7.90] fraud with, [7.430]–​[7.450] grievous bodily harm with, [5.190], [5.270], [9.40] intoxication with, [12.110], [12.130], [12.140] manslaughter and, [4.340], [4.350], [4.390] murder and, [4.240]–​[4.310], [4.390] relevance and determination of, for criminal responsibility, [4.240]–​[4.310], [4.390], [7.340], [11.80], [11.90], [14.30], [14.40], [14.80] accident, [11.80], [11.90] attempts, [14.30], [14.40], [14.80] burglary/​housebreaking, [7.340]

murder, [4.240]–​[4.310], [4.390] wounding with, [5.190], [5.270] Intoxication automatism and, [12.100] defence to offence of endangering life, whether, [12.130], [12.150] defence to stealing, whether, [12.130] defence, whether generally, [12.110] detention, questioning and investigation of people under influence of liquor or drug, [2.220] effect on criminal responsibility of, [12.10], [12.130], [12.150], [12.170], [12.180] elements of defence of, [12.170] guide to problem solving, [12.180] insanity and, [12.100], [12.140] intentional, [12.110], [12.130], [12.140] manslaughter and, [12.130] mistake of fact and, [12.110], [12.150], [13.180] murder and, [12.130], [12.150] onus and standard of proof of defence of, [12.120]–​[12.140] pre-​existing mental disease and, [12.140] unintentional, [12.110], [12.120] voluntary, as factor in sentencing, [16.120] where defence unavailable, [12.110], [12.130]

J Jurisdiction Commonwealth, [1.20] States and Territories, [1.20], [1.30] common law, [1.30] Criminal Codes of Queensland and Western Australia, [1.20], [1.30] —​ see also Criminal Codes of Queensland and Western Australia statutory law, [1.30] Justifications —​ see also Defences; Excuses excuses distinguished, [1.90] generally, [1.60] provocation, [4.330], [4.390], [9.10]–​[9.190], [9.310], [9.330], [10.40], [10.100], [10.150] —​ see also Provocation self-​defence, [4.20], [4.330], [4.390], [10.10]–​[10.180] —​ see also Self-​defence

L Liability —​ see Criminal responsibility

M Manslaughter acquittal of, [4.370]

562      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Manslaughter— cont body, whether necessary to be found, [4.60] causation of death, [4.70]–​[4.220], [4.350] abnormal victim, [4.120], [4.140], [4.350] acceleration of death, [4.110] behaviour of other people, [4.160] defective victim, [4.120], [4.140], [4.350] factual, [4.70] failure to act, whether, [4.170]–​[4.220] lack of proper precaution preventing injury or death, [4.120] legal, [4.70]–​[4.90] natural events, [4.150] new intervening act, [4.90], [4.120], [4.130], [4.150], [4.160] threats, [4.100] treatment subsequent to injury, [4.130] weak victim, [4.120], [4.140], [4.350] child, of, [4.40], [4.50] after born alive, [4.50] unborn, [4.40], [4.50] death, [4.60]–​[4.220], [4.350] causation of, [4.70]–​[4.220], [4.350] defined, [4.60] defences to/​excuses or justifications for, [1.60], [4.20], [4.350]–​[4.370], [10.60] accident, [4.20], [4.350]–​[4.370] emergency, [4.20] insanity, [4.20] involuntary act, [4.20] self-​defence, [4.20], [10.60] elements for murder missing, where, [4.320], [4.340]–​[4.360], [4.390] intentional act, [4.340], [4.350], [4.390] negligence, [4.340], [4.360], [4.390] elements of offence of, [1.60], [4.390] generally, [1.60], [4.10]–​[4.230], [4.320]–​[4.370], [4.390], [4.400], [10.60], [12.130], [14.10] guide to problem solving, [4.400] insanity and, [4.20] intoxication and, [12.130] killing, [4.10], [4.30], [4.230], [4.320]–​[4.360] defined, [4.30] element, as, [4.10], [4.230], [4.320]–​[4.360] liability for, [4.320]–​[4.360], [4.390] elements for murder unable to be established, [4.320], [4.340]–​[4.360], [4.390] no mental element, [4.320], [4.340], [4.390] partial defence to or excuse for murder, [4.320], [4.330], [4.390] murder reduced to charge of, [4.20], [4.330]–​[4.360], [4.390], [9.10], [9.20], [9.190], [9.220], [9.310], [10.50], [10.170] diminished responsibility, [4.330], [4.390], [9.20], [9.220], [9.310]

elements for murder missing, [4.340], [4.360] excessive self-​defence, [4.20], [4.330], [4.390], [10.50], [10.170] extraordinary emergency, [4.20], [4.330], [9.10] provocation, [4.330], [4.390], [9.20], [9.190], [9.310] response to abusive domestic relationship, [4.330], [4.390] partial defence to, or excuse for murder, where, [4.320], [4.330] “person”, meaning of, [4.40] residual offence, as, [4.230] self-​defence as justification for, [4.20], [10.60] unlawful assault/​striking causing death instead of, [4.370] “unlawful killing”, meaning of, [4.20] Mens rea, [1.60] Mental incapacity —​ see also Immaturity; Insanity; Intoxication effect on criminal responsibility of, [12.10]–​[12.170] mistake of fact and, [13.180] people of impaired capacity, [2.210], [6.10], [6.60], [6.270], [6.280]–​[6.300], [12.20] —​ see also People of impaired capacity Mistake of fact application of defence of, [13.150], [13.190], [13.210] assault and, [10.80] belief, [13.150], [13.170], [13.190], [13.210] about “state of things”, [13.150], [13.190] assessment of substance of, [13.210] meaning of, [13.170] corporation, by, whether, [13.160] drug offence and excuse of, [8.40] elements of defence of, [13.230] exclusion of defence of, [13.220] excuse or defence for rape or sexual penetration without consent, [6.20], [6.150] extraordinary emergency and, [9.240] generally, [12.110], [12.150], [13.10], [13.150]–​[13.240] guide to problem solving, [13.240] ignorance of law distinguished, [13.200] intoxication and, [12.110], [12.150], [13.180] meaning of, [13.150] mental impairment and, [13.180] mistake of law distinguished, [13.190], [13.200] reasonableness, [13.180] self-​defence and, [10.80]

INDEX      563

elements of offence of, [1.60], [4.390] generally, [4.10], [4.20], [4.230]–​[4.310], [4.380]–​[4.400], [14.10] general rule of criminal responsibility and, [13.20] guide to problem solving, [4.400] killing, [4.10], [4.30], [4.230]–​[4.310] defined, [4.30] element, as, [4.10], [4.230]–​[4.310] liability for, [4.240]–​[4.310], [4.390] dangerous act done for further unlawful purpose, [4.240], [4.290]–​[4.310], [4.390] intention to do bodily injury endangering or likely to endanger life, [4.240], [4.280], [4.390], [4.485] intention to do grievous bodily harm, [4.240], [4.280], [4.390] intention to kill, [4.240]–​[4.270], [4.390] “person”, meaning of, [4.40] reckless indifference to life, [4.285] reduction of charge to manslaughter, where, [4.330]–​[4.360], [4.390], [9.10], [9.20], [9.190], [9.220], [9.310], [10.50], [10.170], [12.130], [12.150] retrial for, whether, [3.70], [3.90] “unlawful killing”, meaning of, [4.20]

Mistake of law honest claim of right to property and [13.30] mistake of fact distinguished, [13.190], [13.200] Murder attempted, [4.380], [9.10], [14.10] provocation as excuse for, whether, [9.10] bail where charge of, [2.270], [2.290], [2.300], [2.330] —​ see also Bail body, whether necessary to be found, [4.60] causation of death, [4.70]–​[4.220] abnormal victim, [4.120], [4.140] acceleration of death, [4.110] behaviour of other people, [4.160] defective victim, [4.120], [4.140] factual, [4.70] failure to act, whether, [4.170]–​[4.220] lack of proper precaution preventing injury or death, [4.120] legal, [4.70]–​[4.90] natural events, [4.150] new intervening act, [4.90], [4.120], [4.130], [4.150], [4.160] threats, [4.100] treatment subsequent to injury, [4.130] weak victim, [4.120], [4.140] child, of, [4.40], [4.50] after born alive, [4.50] unborn, [4.40], [4.50] death, [4.60]–​[4.220] causation of, [4.70]–​[4.220] defined, [4.60] defences to/​excuses or justifications for, [4.20], [4.330]–​[4.360], [4.390], [9.10], [9.20], [9.190], [9.220], [9.310], [10.50], [10.60], [10.170], [12.130], [12.150] accident, [4.20] —​ see also Accident diminished responsibility, [4.330], [4.390], [9.20], [9.220], [9.310] —​ see also Diminished responsibility emergency, [4.20], [4.330], [9.10] —​ see also Extraordinary emergency insanity, [4.20] —​ see also Insanity intoxication, whether, [12.130], [12.150] —​ see also Intoxication involuntary act, [4.20] —​see also Act of independent will provocation, [4.330], [4.390], [9.20], [9.190], [9.310] —​ see also Provocation reducing murder to manslaughter, [4.330]–​[4.360], [4.390], [9.10], [9.20], [9.190], [9.220], [9.310], [10.50], [10.170], [12.130], [12.150] response to abusive domestic relationship, [4.330], [4.390] self-​defence, [4.20], [4.330], [4.390], [10.50], [10.60], [10.170] —​see also Self-​defence

N Non-​fatal offences —​ see also Assault; Endangering life; Stalking; Threats generally, [5.10]–​[5.280] Notice to appear meaning and effect of, [2.10] where unable to serve, [2.50]

O Offences bringing person before court to face charges for, [2.10] arrest, [2.10] —​ see also Arrest complaint and summons, [2.10] —​ see also Complaint and summons notice to appear, [2.10] —​see also Notice to appear prosecution notice, [2.10] —​see also Prosecution notice classification of, [1.100] complicity in —​ see Conspiracy see Parties to offences double prosecution —​ see Double prosecution drug, 8.10–​8.170  —​see also Drug offences

564      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Offences— cont fatal, [4.10]–​[4.400] —​ see also Homicide; Manslaughter; Murder; Unlawful assault/​striking causing death homicide, [4.10]–​[4.400] —​ see also Homicide; Manslaughter; Murder; Unlawful assault/​striking causing death indictable, [1.100] non-​fatal, [5.10]–​[5.280] —​ see also Assault; Endangering life; Grievous bodily harm; Stalking; Threats “offence” defined, [14.40], [15.30] “offence relating to property”, meaning of, [13.40] parties to —​ see Parties to offences property, [7.10]–​[7.580] —​ see also Burglary/​housebreaking; Damage to property; Fraud; Robbery; Stealing regulatory, [1.100] “serious offences” defined, [3.110] sexual, [6.10]–​[6.300] —​ see also Indecent assault; Rape; Sexual assault; Sexual coercion; Sexual penetration without consent structure of Criminal Codes in relation to, [1.50], [1.60] summary, [1.100]

P Parties to offences accessory after the fact, [15.30], [15.90], [15.120] criminal responsibility of, [15.90] examples of, [15.90] immunity of spouse who is, whether, [15.90], [15.120] maximum penalty, [15.90] meaning of, [15.90] aider, [15.30], [15.50]–​[15.60], [15.100], [15.120] criminal responsibility of, [15.55], [15.60], [15.68], [15.120] meaning of, [15.50] withdrawal of participation, [15.100] application of legislative provisions relating to, [15.30] company and criminal organisations, [15.110]–​[15.115] conspiracy, [15.10], [15.20], [15.120], [15.130] —​ see also Conspiracy counsellor, [15.30], [15.70], [15.120] criminal responsibility of, [15.70], [15.120] meaning of, [15.70] criminal responsibility of, [15.30]–​[15.90], [15.120] accessory after the fact, [15.90] aider, [15.50], [15.60], [15.120] assessment of, [15.55], [15.60]

common intention, [15.60], [15.65], [15.120] counsellor, [15.70], [15.120] enabler, [15.50], [15.60], [15.120] evidence, [15.120] executor, [15.40], [15.120] innocent agent, whether, [15.80] knowledge, [15.55], [15.70], [15.90] probable consequence of unlawful purpose, [15.58], [15.60], [15.70] procurer, [15.120] enabler, [15.30], [15.50], [15.60], [15.120] criminal responsibility of, [15.55], [15.60], [15.68], [15.120] meaning of, [15.50] executor, [15.30], [15.40], [15.60], [15.120] criminal responsibility of, [15.40], [15.60], [15.68], [15.120] guilt of one party, [15.40] meaning of, [15.40] generally, [1.50], [15.30]–​[15.130] guide to problem solving, [15.130] innocent agent, [15.30], [15.80], [15.120] criminal responsibility of, whether, [15.80] examples of, [15.80] knowledge of essential facts, [15.55], [15.58] mere presence at crime scene of person, [15.50], [15.53] “offence” defined, [15.30] procurer, [15.30], [15.70], [15.80], [15.120] criminal responsibility of, [15.120] meaning of, [15.70] verbal encouragement, [15.53] withdrawal of participation, [15.100] People of impaired capacity —​see also Children; Immaturity; Insanity; Intoxication; Mental incapacity arrest of, [2.210] consent, whether capacity to, [6.60] detention, questioning and investigation of, [2.210] fitness to stand trial, [12.20] sexual offences against persons incapable of giving consent, [6.10], [6.270], [6.280]–​[6.300] guide to problem solving, [6.300] Queensland, in, [6.10], [6.270], [6.290] Western Australia, in, [6.10], [6.280], [6.290] Police officer duty, [2.10] interview, [2.150] Proof disproving defence, [1.70], [1.90], [9.20] intention, of, for attempted crime, [14.30], [14.40], [14.80] onus of, [1.70]–​[1.90], [3.20], [9.20], [9.210], [10.60], [11.10], [11.50], [12.20], [12.120]–​[12.140], [12.160], [13.30], [14.20], [14.30]

INDEX      565

Proof — cont accident, [11.10], [11.50] act of independent will, [11.10] attempts, [14.20], [14.30] diminished responsibility, [9.20], [9.210] double prosecution, [3.20] duress/​compulsion, [9.20] evidentiary, [1.70], [1.80] excuses, [9.20], [11.10], [11.50] honest claim of right to property, [13.30] immaturity, [12.160] insanity, [12.20] intoxication, [12.120]–​[12.140] persuasive or legal, [1.70], [1.90] provocation, [9.20] self-​defence, [10.60], [12.20] tactical evidentiary burden, [14.20] sexual assault, of, [6.230] standard of, [1.90], [3.20], [9.20], [12.20], [12.120]–​[12.140], [14.20], [14.30] attempts, [14.20], [14.30] disproving defences, [1.90], [9.20] double prosecution, [3.20] insanity, [12.20] intoxication, [12.120]–​[12.140]

guide to problem solving, [9.330] homosexual advance, whether, [9.10] justification, as, [9.10] murder and, [4.330], [4.390], [9.20], [9.190], [9.310] onus of proof of, [9.20] ordinary person attributes and characteristics, [9.170] two-​step test, [9.60] ordinary self-​control, uniform standard of, [9.130] personal attributes and characteristics of accused, [9.90], [9.100] proportionality, [9.180] Queensland, in, [9.10]–​[9.70], [9.120]–​[9.190], [9.310], [9.330], [10.40], [10.60], [10.100], [10.170] assault, where, [9.10], [10.40], [10.100] effect of defence [9.20], [9.190], [9.310] elements of defence, [9.310] elements of excuse, [9.310] excuse or defence?, [9.20] guide to problem solving, [9.330] justification or defence?, [10.60] onus of proof, [9.20], [10.60] other non-​fatal offences, whether, [9.10] proportionality, [9.180] “provoke” defined, [10.100] self-​defence and, [10.40], [10.60], [10.100], [10.170] test for loss of self-​control, [9.120] time of reaction, [9.110] unavailable, where, [9.40] unwanted sexual advance, [9.150] wrongful act or insult, whether, [9.70] reduction of murder charge to manslaughter by reason of, [4.330], [4.390], [9.20], [9.190], [9.310] self-​defence and, [10.40], [10.60], [10.100], [10.170] time of reaction to, [9.110] unavailable as defence/​excuse, where, [9.40] Western Australia, in, [9.10]–​[9.70], [9.120]–​[9.190] assault, where, [9.10] effect of defence of, [9.190] other non-​fatal offences, whether, [9.10] proportionality, [9.180] test for loss of self-​control, [9.120] time of reaction, [9.110] unavailable, where, [9.40] wrongful act or insult, whether, [9.70] wrongful act or insult, whether, [9.70]

Property offences —​ see also Burglary/​housebreaking; Damage to property; Fraud; Robbery; Stealing generally, [7.10]–​[7.580] “offence relating to property”, meaning of, [13.40] overview, [7.10] purpose of law of, [7.10] Prosecution notice meaning and effect of, [2.10], [2.60] Provocation assault, where, [9.10], [9.310], [9.330], [10.40], [10.100] consent and, [9.30] assessing gravity of, [9.90], [9.140] battered woman syndrome and, [9.90], [10.150] causation of, [9.70] defined, [9.10], [9.310], [10.100] deprivation of power of self-​control, [9.80], [9.90], [9.120], [9.310] meaning of, [9.80] test of, [9.90], [9.120] directions to jury about, [9.10], [9.50] domestic relationships, [9.160] effect of defence of, [9.20], [9.190], [9.310] elements of, [9.310] excuse for attempted murder, whether, [9.10] excuse for offence of endangering life, whether, [9.10] excuse or defence?, [9.20] generally, [9.10]–​[9.190], [9.310], [9.330]

Q Questioning and investigation of suspects Aboriginal and Torres Strait Islander people, [2.190] cautioning, [2.150], [2.160], [2.190], [2.230], [2.240]

566      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Questioning and investigation of suspects— cont children, [2.200] detention period for, [2.130], [2.140], [2.330] commencement of, [2.130] maximum, [2.130], [2.140] reasonableness of, [2.130], [2.140], [2.330] generally, [2.130]–​[2.240], [2.330], [2.340] guide to problem solving, [2.340] impaired capacity, where, [2.210] intoxicated people, [2.220] people of impaired capacity, [2.210] purposes of detention for, [2.130], [2.140] Queensland, in, [2.130], [2.150], [2.190]–​[2.230], [2.330] Aboriginal and Torres Strait Islander people, [2.190] cautioning, [2.150], [2.230] children, [2.200] communication, [2.150] detention for, [2.130] intoxicated people, [2.220] people of impaired capacity, [2.210] recording of questioning, [2.150], [2.230] rights during, [2.150], [2.190]–​[2.220], [2.330] recording of questioning, [2.150], [2.230], [2.240] rights during, [2.150]–​[2.240], [2.330] Aboriginal and Torres Strait Islander people, [2.190] cautioning, [2.150], [2.160], [2.190], [2.230], [2.240] children, [2.200] communication, [2.150], [2.160]–​[2.180] intoxicated people, [2.220] people of impaired capacity, [2.210] recording of questioning, [2.230], [2.240] “suspicion”, meaning of, [2.240] Western Australia, in, [2.140], [2.160]–​[2.220], [2.240] Aboriginal and Torres Strait Islander people, [2.190] cautioning, [2.160], [2.190], [2.240] children, [2.200] communication, [2.160]–​[2.180] detention for, [2.140] intoxicated people, [2.220] people of impaired capacity, [2.210] recording of questioning, [2.240] rights during, [2.160]–​[2.220], [2.240] “suspicion”, meaning of, [2.240]

R Rape attempted, [6.30] consent, [6.10]–​[6.30], [6.50]–​[6.110], [6.290] capacity to, [6.60]

coercion, [6.80] deceit and fraud, [6.100], [6.110] meaning of, [6.50], [6.70] relevance of, [6.10]–​[6.30], [6.50], [6.290] submission and intimidation, [6.50], [6.70] threats, [6.90] validity of, [6.50]–​[6.110] defined, [6.10], [6.30] elements of, [6.290] excuse for or defence of, [6.20], [6.150] forms of, [6.30] guide to problem solving, [6.300] mental element, [6.140], [6.150] reform of law and extension of forms of, [6.10] Retrial 25–​year offences, for, [3.70], [3.90], [3.170] double prosecution rules and —​see Double prosecution murder, whether for, [3.70], [3.90] Robbery attempted/​assault with attempt to rob, [7.220]–​[7.240] components of, [7.150]–​[7.180] stealing, [7.150], [7.160] violence/​threatened violence, [7.150], [7.170], [7.180] creation of offence of, [7.150] elements of, [7.570] maximum penalties, [7.150] meaning of, [7.10] serious forms of, [7.150], [7.190]–​[7.210] armed with dangerous or offensive weapon, [7.150], [7.190], [7.200] circumstances of aggravation in company, [7.210]

S Self-​defence accused's belief, [10.40], [10.50], [10.120], [10.170] basis of, [10.10] battered woman syndrome and, [10.150] defence, excuse or justification, whether, [10.60] duress/​compulsion distinguished, [9.230] effect of, [10.40]–​[10.60], [10.170] excessive, and reduction of murder charge to manslaughter, [4.20], [4.330], [4.390], [10.50], [10.170] extraordinary emergency and, [9.230] generally, [1.60], [1.90], [10.20]–​[10.180] guide to problem solving, [10.180] manslaughter and defence/​excuse/​ justification of, [4.20]

INDEX      567

Self-​defence — cont mistake of fact, [10.80] murder and, [4.20], [4.330], [4.390], [10.50], [10.170] onus of proof, [10.60], [12.20] provocation and, [10.40], [10.100], [10.170] Queensland, in, [4.20], [10.20], [10.40], [10.60], [10.80]–​[10.140], [10.160]–​[10.180] accused's belief, [10.40], [10.120], [10.170] assault, [10.40], [10.80], [10.100], [10.170] defence of self, [4.20], [10.20], [10.40] defence of third person, [10.20], [10.40], [10.160] effect of, [10.40], [10.60] elements of, overview, [10.170] excuse, as, [4.20], [10.60] force used, [10.40], [10.90], [10.120], [10.130], [10.160], [10.170] guide to problem solving, [10.180] justification, as, [10.40], [10.60], [10.160] legislative overview, [10.20] mistake of fact, [10.80] onus of proof, [10.60] practicable retreat, [10.140] provocation of victim by accused, [10.40], [10.100], [10.170] reasonable apprehension of death or grievous bodily harm, [10.40], [10.110], [10.170] Western Australia, in, [10.30], [10.50]–​[10.80], [10.120], [10.170], [10.180] accused's belief, [10.50], [10.120], [10.170] effect of, [10.50], [10.60], [10.170] excuse, as, [10.60] guide to problem solving, [10.180] harmful act, [10.50], [10.70], [10.120], [10.170] justification, as, [10.60] legislative overview, [10.30] mistake of fact, [10.80] onus of proof, [10.60] reasonableness of response, [10.50] Sentencing approaches to, [16.150] factors in, [16.20]–​[16.140], [16.170] Aboriginal or Torres Strait Islander, where, [16.170] aggravating, [16.30] assistance to law enforcement agencies, [16.90] character of accused, [16.60] circumstances of aggravation, [16.30] community protection, [16.25] compensation payment, whether, [16.140] delay between offence and sentencing, [16.100] drug addiction, [16.120] guilty plea, [16.70]

hardship/​family responsibilities, [16.130] harm done to/​impact on victim, [16.170] ill health, [16.110] maximum penalty, [16.50], [16.170] mitigating, [16.40], [16.70]–​[16.100] nature and seriousness of offence, [16.170] not guilty plea, [16.70] principle of proportionality, [16.20] remorse, [16.80], [16.90] voluntary intoxication, [16.120] generally, [16.10]–​[16.180] guide to problem solving, [16.180] instinctive synthesis and two-​stage approaches, [16.150]–​[16.155] mandatory minimums, burglary/​housebreaking, [7.370] maximum penalties, [3.110], [7.20], [7.150], [7.260], [7.300], [7.490], [7.500], [7.560], [8.20], [8.50], [8.160], [14.90], [14.110], [15.10], [15.20], [15.90] accessory after the fact, [15.90] attempt, [14.90], [14.110] burglary/​housebreaking, [7.260], [7.300] conspiracy, [15.10], [15.20] damage to property, [7.490], [7.500], [7.560] drug offences, [8.20], [8.50], [8.160] robbery, [7.150] serious offence, [3.110] stealing, [7.20] options, [16.160] purposes of, [16.10] Sexual assault consent, relevance of, [6.180], [6.290] elements of, [6.190]–​[6.230], [6.290] indecency, [6.190], [6.210], [6.290] mental element, [6.210], [6.220] unlawful assault, [6.190], [6.200], [6.230], [6.290] generally, [6.10], [6.180] guide to problem solving, [6.300] mental element, [6.210], [6.220] proof, [6.230] Sexual coercion aggravated, [6.170], [6.180], [6.290] consent, relevance of, [6.170] elements of, [6.290] guide to problem solving, [6.300] meaning of, [6.170], [6.180] introduction of offence of, [6.10] “sexual behaviour” defined, [6.170] Sexual offences consent, [6.10], [6.240] age of, for sexual behaviour generally, [6.10], [6.240] age of, where victim under care, supervision or authority of offender, [6.10], [6.240] relevance of, [6.10]

568      PRINCIPLES OF CRIMINAL LAW IN QUEENSLAND AND WESTERN AUSTRALIA

Sexual offences— cont guide to problem solving, [6.300] overview of, [6.10] Queensland, in —​ see Children; People of impaired capacity; Rape; Sexual assault reforms of law. [6.10] traditional division of, [6.10] Western Australia, in —​ see Indecent assault; Children; People of impaired capacity; Sexual coercion; Sexual penetration without consent Sexual penetration without consent aggravated, [6.160], [6.290] consent, [6.20], [6.50]–​[6.130], [6.290] capacity to, [6.60] coercion, [6.80] deceit and fraud, [6.100]–​[6.120] meaning of, [6.50], [6.70] relevance of, [6.20], [6.50], [6.290] submission and intimidation, [6.50], [6.70] threats, [6.90] validity of, [6.50]–​[6.120] withdrawal of, [6.130] elements of, [6.290] excuse for or defence of, [6.20], [6.150] forms of penetration, [6.40] guide to problem solving, [6.300] mental element, [6.140], [6.150] replacement of former offence of rape by offence of, [6.10] “sexual penetration” defined, [6.30] Stalking generally, [5.240]–​[5.260], [5.270] guide to problem solving, [5.280] Queensland, in, [5.250], [5.270] Western Australia, in, [5.260], [5.270] Stealing attempted, [14.10] component of offence of robbery, as, [7.150], [7.160] —​ see also Robbery

creation of offence of, [7.20] doctrine of recent possession, [7.130] elements of, [7.30]–​[7.120], [7.570] conversion-​stealing, [7.30], [7.40], [7.80]–​[7.120] taking-​stealing, [7.30]–​[7.120] fraudulent intent, whether, [7.30], [7.40], [7.80], [7.90] guide to problem solving, [7.580] intoxication as defence to, whether, [12.130] maximum penalties for, [7.20] meaning of, [7.10]–​[7.30] unlawful use of motor vehicle, [7.140] Summons meaning and effect of, [2.60]

T Threats causation of death by, [4.100] generally, [5.210]–​[5.230], [5.270] guide to problem solving, [5.280] obtaining consent by, [6.90] Queensland, in, [5.210], [5.220], [5.270] “threat” defined, [5.230] violence, of, and robbery, [7.150], [7.170], [7.180] Western Australia, in, [5.210], [5.230], [5.270] Trial fitness to stand, [12.20] indictment, on, [1.100] summary, [1.100] termination of, by reason of unfitness to stand, [12.20]

U Unlawful assault/​striking causing death liability for, [4.350], [4.370] “unlawful killing”, meaning of, [4.20]