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LAW3301

Criminal Law and Procedure A (Semester 1, 2016)


READING GUIDE

NOTES FOR USING THIS READING GUIDE


This Reading Guide should be read in conjunction with the 2016 Unit Guide and 2016 Tutorial
Guide for this subject.
Most cases on this reading guide are extracted or mentioned in WW, (Waller & Williams,
Criminal Law Text and Cases (Butterworths, 12th Ed, 2012)
All section references are to the Crimes Act 1958 (Vic) unless otherwise indicated.
On completion of the 10 percent online quiz in Week 4, students will also be provided with an
Index of Key Resources and details of 2015-2016 legislative amendments for criminal
procedure. This material supplements the sources listed in the Reading Guide.
The readings in this Reading Guide are prescribed, unless otherwise indicated. Students are
expected to have read the prescribed materials ahead of each class and are strongly advised to
stay ahead of their reading.

Any readings marked Further/additional/optional reading are discretionary. Understandably,
the more you read, the more you will gain from the course.


UNIT SCHEDULE

This is an approximate timetable. The coverage and schedule of topics may vary between each
lecture steam.

As well as weekly lectures, all students will be allocated into tutorials for this unit.

There are no tutorials in Week 1. Starting Week 2 or Week 3 depending on the cycle of tutorials to
which you have been allocated, tutorials will take place every second week, except Week 12 when
there will be a combined revision tutorial for both cycles or as advised by your tutor. Students
need to ensure that they are aware of the their tutorial allocation and that they attend the correct
tutorials.

* Please note: sometimes tutorials will be covering topics that have not necessarily been
finished in lectures depending on individual stream times. This is unavoidable due to constraints
in timetabling. Therefore, it is expected that students will do independent preliminary reading
for each tutorial PRIOR to classes. Your co-operation and understanding is appreciated.

***N.B: Group refers to the cycle you have been allocated into on your timetable group 1
begins tutorials in week 2, group 2 begins tutorials in week 3. See start dates on your timetable.

UNIT SCHEDULE
Week
commencing

Week

Topic

Monday
29 February

Topic 1: Introduction
Topic 2: Criminal
Procedure -Themes
and Jurisdiction

Monday
7 March

Topic 2: Criminal
Procedure -Themes
and Jurisdiction
Criminal Investigation

Monday
14 March

Topic 2: Criminal
Procedure Criminal
Investigation
Criminal Prosecution

Monday
21 March

Topic 2: Criminal
Procedure Criminal
Prosecution
Sentencing

Monday 28
March
Friday 1
April

No
classes

MID SEMESTER
BREAK

Monday
4 April

Topic 3:Elements of
a Crime

CLASS TEST
Topic: Criminal Procedure
Thursday 7 April 5pm.
15 minutes reading time, 1
hour writing
time. Locations to be
advised.

Hart/Devlin debate
and the purposes of
criminal law:Group
2

Monday
11 April

Topic 4:Offences
against the Person
Common Law

TUTORIAL
PRESENTATIONS:Group 1

Sentencing and
Bail:Group 1

Monday
18 April

Topic 4:Offences
against the Person
Crimes Act

TUTORIAL
PRESENTATIONS:Group 2

Sentencing and
Bail:Group 2

Monday
25 April

Topic 5: Homicide
Murder

Offences against the


Person: Group 1

Monday
2 May

Topic 5:Homicide
Manslaughter

Offences against the


Person: Group 2

Topic 5:Homicide
Statutory Offences
Topic 6: Self-defence
and other defences
to crime.

Homicide:Group 1

Monday
16 May

11

Topic 6: Self-defence
and other defences
to crime.

Homicide:Group 2

Monday
23 May

12

Revision

Defences &
Revision:Groups
1 AND 2

Monday
9 May

Assessment

Tutorials
(fortnightly)
No tutorials in
week 1

Optional Library workshop


on updating legislation in
preparation for online
criminal procedure quiz.

Criminal
Investigation and
Procedure:Group 1
Criminal
Investigation and
Procedure:Group 2

ONLINE CRIMINAL
PROCEDURE QUIZ

Hart/Devlin debate
and the purposes of
criminal law:Group
1
No tutorials in midsemester break

Mid-Year Exam Period SWOT VAC: 30 May 3 June


Final Exam: During Exam Period: 6 June 24 June
http://www.policy.monash.edu/policy-bank/academic/education/assessment/assessment-in-
coursework-policy.html


References

Required texts
Anthony, T et al., Waller & Williams Criminal Law Text and Cases (12th ed.), Sydney:
Butterworths, 2013 (WW).

Older editions will not be up to date and may have incorrect page/paragraph references.

This Reading Guide generally makes reference to WW unless another textbook covers a
particular area in more depth or WW does not cover that topic.
You may supplement WW with any or all of the recommended texts (below) if you wish. It
is up to your discretion to decide how much use to make of these.

Crimes Act 1958 (Vic)


Students will be expected to have their own up-to-date copy of the Crimes Act 1958 or
otherwise obtain relevant sections for substantive topics covered in this unit. NB: The
legislation is re-printed several times per year to include updated amendments.

From time to time, students will also find it necessary to refer to other pieces of legislation listed
in this Reading Guide, particularly for the topic of criminal procedure. This material can be
accessed online, primarily at www.legislation.vic.gov.au.

Supplementary Recommended texts:

Please note that some of these text books are now out of print (although still in circulation via
second hand copies). Those nominated in the Reading Guide are also available on Reserve in the
library.

Use your discretion in how you make use of text books. Coverage of some aspects of the law on
some topics (but not the general principles of criminal law) may be out of date.

B&E

B&M

C&T

F

Bagaric, M. and Edney, R., Sentencing in Australia Thomson Reuters, 2014.


Bronitt, S. and McSherry, B., Principles of Criminal Law (3rd ed), LBC, 2010.
Corns, C. Criminal Investigation and Procedure: Law in Victoria (2nd ed) Pyrmont:
Thomson Reuters, 2014.
Freckelton, I., Criminal Law, Investigation and Procedure Victoria (Thomson Reuters)
online service available via Westlaw AU.

Fox

F&K

M&N

Fox, R.G. and Deltondo, N. Victorian Criminal Procedure (14th ed.) Annandale:
Federation Press, 2015.
Finlay, L. and Kirchengast, T. Criminal Law in Australia Lexis Nexis, 2015.
McSherry, B. and Naylor, B., Australian Criminal Laws: Critical Perspectives, Melbourne:
Oxford University Press, 2004.

Legislation workshop (optional)


Workshops on updating legislation and how to find legislative amendments will be run during
Week 2. Students should book into one session using the Library Online Class Booking system via
the my.monash portal. These workshops are optional however will be highly beneficial for the
10% online criminal procedure quiz and the 30% class test.


Optional pre-reading/for interest

Martin McKenzie-Murray, A Murder without Motive: The Killing of Rebecca Ryle (2016)
Making a Murderer (Netflix series)
Helen Garner, This House of Grief (2014); Joe Cinques Consolation (2004)
Sarah Koenig, Serial (podcast), season 1
Anna Krein, Night Games: Sex, Power and Sport (2013)
Prison Songs (SBS) http://edutv.informit.com.au.ezproxy.lib.monash.edu.au/watch-
screen.php?videoID=861838

Topic One: Introduction to Criminal Law


Part 1: What is a Crime?


WW [1.1]-[1.2]

Part 2: Principles and Aims of the Criminal Law


o

WW [1.3]-[1.14], [1.42]-[1.53]

s.5(1) Sentencing Act (1991) (Vic).


Part 3: Personal Freedom and the Criminal Law

R v Brown [1994] 1 AC 212; WW [2.35C]-[2.36]

JS Mill, On Liberty (London, 1859) pp1, 3-19, B&M [1.220];

Lord Devlin, 'The Enforcement of Morals' (Proceedings of the British Academy, 1959; reprinted,
Oxford: OUP, 1965) pp1-25, B&M [1.125];


o HLA Hart, Law, Liberty and Morality (Oxford,1963) pp 25-34 (all extracted online)

Additional reading:

o B&M [10.170]; M&N 189-190, 194-196, 200-202.

Additional resources:

A copy of the Hart-Devlin Debate Encore is available on YouTube to enable you to access the debate at any
time: http://www.youtube.com/watch?v=qWrhEARupCg.

Topic Two: Criminal Procedure



The next three weeks address criminal procedure.

As law students and lawyers need to be aware of changes to legislation in their field, the ability to
update legislation is a core skill and criminal procedure is an area of law that involves regaular
legislative amendment.

If you wish, you may book into a workshop on updating legislation. These workshops will be run
during Week 2. Book in using the Online Library Class Booking system via the my.monash portal.

In Week 4, students will complete a timed 25 question online multiple choice criminal procedure
quiz worth 10 percent of the final mark. The Online Quiz is designed to assist you with preparation
for the Class Test.

Following the closure of the quiz, and conditional on students completing the quiz, a key resources
booklet and index will be released for preparation for the Class Test in Week 5.

The class test is closed book and you will be expected to be familiar with relevant provisions. You
will not be able to take these materials into the class test however will be issued with a clean copy
of the index (so that you do not need to remember the acts and section numbers by heart) during
the class test.

Therefore, in addition to the references below, there will be legislative sections that you will
identify in your Legislative Research Skills exercise that you may need to know for the class test.

Part 1: Themes



(a) Balancing individual civil liberties and the public interest


o

Charter of Human Rights and Responsibilities Act 2006 (Vic) ss.5, 21-22, 24, 25

The golden thread: WW [1.82]

Director of Public Prosecutions Policy, Prosecutorial Discretion (Nov 2014).


http://www.opp.vic.gov.au/getattachment/5b830306-a17b-4ada-9078-6982539d44ac/2-The-
Prosecutorial-Discretion.aspx: read pp.1-4


Further reading: B&M [1.125], [1.160]


(b) A discretion based system
o Fox p 42 diagram how many discretionary decision making points can you identify?

Part 2: Jurisdiction

(a) Sources of Law: state and federal; common law and statute
o

WW [1.15]-[1.21], Fox [1.1.1.1], [1.1.1.2], [1.1.1.4], [1.1.2]

(b) Territory:

Crimes Act 1958 (Vic) s.9

Fox [1.4.1]

(c) Courts Exercising Criminal Jurisdiction


Magistrates Court: Criminal Procedure Act 2009 (Vic) s.11, 27

Childrens Court: Children Youth and Families Act 2005(Vic) s.516

County Court: County Court Act 1958: ss.4-5, 36A

o Supreme Court: Supreme Court Act 1986: s.10



Further reading:
o Fox [6.1.1], [6.4]

(d) Classification of Offences Summary, indictable (indictable triable summarily)


o

Criminal Procedure Act 2009 (Vic) ss.28-30, 96-97.

Sentencing Act 1991 (Vic) ss.113, 113A, 113B

(e) Persons
o

Children: WW [1.37]-[1.38],
o Children Youth and Families Act 2005(Vic) ss.3 (see definition of child), 344, 516.

Individuals with mental impairment: B&M [3.10]

Corporations: WW [1.39], Criminal Procedure Act 2009 (Vic) s.334


Further reading:
o Fox [1.3.2]
(f) Time:
o

Criminal Procedure Act 2009 (Vic) ss.6,7,10, 98-99,102, 163, 211, 212

o Children Youth and Families Act 2005 (Vic) s.344A-s.344D.




Further reading:
o Fox [1.5.1]


Part 3: Criminal Investigation

(a) Arrest

Arrest without warrant:


o Crimes Act 1958 (Vic) ss.457, 458, 459, 459A, 461, 462, 462A



7

Arrest with warrant:


o Criminal Procedure Act 2009 (Vic) ss.12-16
o Magistrates Court Act 1989 (Vic) ss.57, 61-65

Further reading:
o Fox [4.2.2]-[4.2.4]
o Alderson v Booth [1969] 2 QB 216
o Christie v Leachinsky [1947] AC 573


(b) Detention

For questioning or investigation: Crimes Act 1958 (Vic) ss.464, 456AA



Definition of custody: Crimes Act 1958 (Vic) s.464A

Rights whilst in detention: Crimes Act 1958 (Vic):
o Silence: s.464J
o Communication: s.464C
o Interpreter: s.464D
o Parent/guardian: s.464E
o Recording of interviews: ss.464H
o Fingerprints: ss.464K-464Q
o Forensic procedures : ss.464R-464Z.
Further reading:
o ss.464ZA 464ZH
o Fox [4.2.5]-[4.2.7]


(c) Warrants, Search and Seizure
With a warrant: Magistrates Court Act 1989 (Vic) s.64

Without a warrant; Crimes Act 1958 (Vic) s.459A

Further reading:
o Fox [4.2.9]-[4.2.10], [5.2-5.3]

(d) Bail
Eligibility: Bail Act 1977 (Vic) ss.3A, 4
Conditions: Bail Act 1977 (Vic) ss.5, 9, 25
Application: Bail Act 1977 (Vic) ss.8, 13
Further application for bail: Bail Act 1977 (Vic) ss.18-18AB
Applications to vary bail conditions: Bail Act 1977 (Vic), ss.18AC, 18AD
Application to revoke bail: Bail Act 1977 (Vic) ss.18AE, 18AF
Failure to answer bail: Bail Act 1977 (Vic) s.30
Breach of conduct condition Bail Act 1977 (Vic) s.30A
Committing an indictable offence on bail: Bail Act 1977 (Vic) s.30B

Further reading:
o
o
o

DPP v Wood [2014] VSC 1.


Bail Amendment Act 2016 esp. ss.6-7. 9-16, 20.
Freckelton (online via Westlaw AU - open the Index to look for Bail)

Part 4: Criminal Prosecution


(a) The Commencement of Process



Discretion to Initiate Prosecutions:

o Fox [2.3.1]-[2.3.3]

Director of Public Prosecutions Policy Prosecutorial Discretion (Nov 2014) at


http://www.opp.vic.gov.au/getattachment/5b830306-a17b-4ada-9078-6982539d44ac/2-
The-Prosecutorial-Discretion.aspx: read pp.1-4

Summary offences / Indictable offences / Indictable offences triable summarily:



o Criminal Procedure Act 2009 (Vic) ss.5, 7, 159;
o Children Youth and Families Act 2005 (Vic) s344A


Further reading:
o Fox [4.3.1-4.3.6] (charge), [4.4.1.2] and [4.4.2.1] (indictment).
Discretion to Discontinue Proceedings:

o Criminal Procedure Act 2009 (Vic) s.177

Further reading:
o Fox [2.5.1]-[2.5.2]
Plea Negotiation:

o WW [1.54]-[1.56];
o Sentencing Act 1991 (Vic) s.6AAA (plea discount);

Further reading:
o Fox [2.7]

(b) Determination of offences in the Magistrates Court process:


o Criminal Procedure Act 2009 (Vic), ss.31, 32, 33, 35, 37, 39, 41, 42, 53, 53A, 54, 55, 62, 63,
64, 65, 66, 73, 74, 80, 81, 82, 88.

(c) Trial of Indictable Offences process:

(i) Committal Proceedings

o
o

Purposes: Criminal Procedure Act 2009 (Vic) s.97-98, 100


Obligation to conduct: Criminal Procedure Act 2009 (Vic) s.96

Further reading:
o Fox [7.1.1]-[7.1.2]
o Fox [7.2]

(ii) Trial

Pleading guilty or not guilty:


o Fox [8.6.6]
9

The trial process:


Criminal Procedure Act 2009 (Vic) Part 5.7 (specifically ss.210, 215, 222, 224, 225,
226, 230, 231, 234, 235, 236, 238)

Role of the Jury:
o WW [1.59]
o Juries Act 2000 (Vic) s.46
o Generally: Jury Directions Act 2015 (Vic) ss.5-6
o Request for directions: Jury Directions Act 2015 (Vic) ss.9-16
o Trial Judges summing up: Jury Directions Act 2015 (Vic) s.65-66
o Proof beyond reasonable doubt: Jury Directions Act 2015 (Vic) ss.61, 63, 64

Further reading
o Fox [8.7]

Prohibition against double jeopardy and prevention of abuse of process:
o WW [1.62]-[1.70]
o Charter of Human Rights and Responsibilities Act 2006 (Vic) s.26;
o Criminal Procedure Act 2009 (Vic) s.327H (limitations on the rule against double
jeopardy)

Further reading
o Fox [8.6.5.4]

Part 5: Sentencing

(a) Introductory reading:


o Lovegrove, A. Public Sentence Shock (2007) 81(11) Law Institute Journal 58-61.

(b) Sentencing Principles:
o Sentencing Act 1991 (Vic) ss.4 6AAA, s.70.
o Children, Youth and Families Act 2005 (Vic) s. 362
o Further reading:
o R v Mills [1998] 4 VR 235 (rehabilitation and young offenders)
o R v Verdins; R v Buckley; R v Vo [2007] VSCA 102 esp at para 32 ff for the Verdins
principles (the impact of mental health issues on the sentencing process).

(c) Sentencing framework:
Diversion

o Criminal Procedure Act 2009 (Vic) s.59


Sentence indication:
o Criminal Procedure Act 2009 (Vic) ss.60-61 (Magistrates Court)
o Criminal Procedure Act 2009 (Vic) ss.207-209 (County/Supreme Court)

Sentencing Options:
o Fox diagram p.332
o Sentencing Act 1991 (Vic) s.7; Children, Youth and Families Act 2005 (Vic), s.360,
o Dismissal: Sentencing Act 1991 (Vic) s.76
o Discharge: Sentencing Act 1991 (Vic) s.73
o Adjourned undertaking: Sentencing Act 1991 (Vic) ss.72, s.75
o Deferral: Sentencing Act 1991 (Vic) s.83A, see also Children, Youth and Families Act 2005
(Vic) s414
10

o
o

o
o
o

(d) Compensation for victims of crime:


o
o
o

Fines: Sentencing Act 1991 (Vic) ss. 49 57


Community Corrections Orders: Sentencing Act 1991 (Vic) ss.36 37; and see ss.38-48Q for
details
o Guideline judgment on CCOs: Boulton v The Queen [2014] VSCA 342, pp.101-108
Custodial Sentences: Sentencing Act 1991 (Vic) ss. 9 - 18
Serious offenders: Sentencing Act 1991 (Vic) ss.6A 6F
Indefinite Sentence of Imprisonment: Sentencing Act 1991 (Vic) ss. 18A 18P

Restitution: Sentencing Act 1991 (Vic) s.84


Compensation: Sentencing Act 1991 (Vic) s.85B
Victims of Crime Assistance Act 1996 (Vic): s.1 (purpose of legislation) and s.8 (assistance
available to primary victims)

Further reading:
o
o
o

Fox [9.2.1]-[9.2.3], [9.3.1], [9.3.3]


Dismissal, Discharge, Adjournment and Deferral: Fox [9.4.1]-[9.4.3.2]
Fines: Fox [9.5.1]-[9.5.4], [9.5.8]

o
o

Community Correction Orders: Fox [9.6.1]-[9.6.5].


Custodial sentences: Fox [9.10.1]-[9.10.3], [9.10.9]-[9.10.9.1]

o
o
o

Serious and Dangerous Offenders; Indefinite Sentence of Imprisonment: Fox [9.9]; [9.11]
Compensation for victims of crime: Fox [9.17.1]
Judge for yourself A Guide to Sentencing in Australia Judicial Conference of Australia
https://sentencingcouncil.vic.gov.au/sites/sentencingcouncil.vic.gov.au/files/judge_for_yo
urself_a_guide_to_sentencing_in_australia.pdf
Karen Gelb, Purposes of Sentencing: Community Views in Victoria 2011
https://sentencingcouncil.vic.gov.au/sites/sentencingcouncil.vic.gov.au/files/purposes_of
_sentencing_community_views_in_victoria.pdf
Sentencing video: You be the Judge at the Sentencing Advisory Council website
http://www.sentencingcouncil.vic.gov.au/virtualjudge/

11

Topic Three: Elements of a crime



(a) Introduction and Traditional Classifications of Offences
Actus non facit reum nisi mens sit rea: WW [1.23]-[1.34]

Further reading:
o B&M [3.65]-[3.100]; F&K 9-22.
o

(b) External/Physical Elements (Actus Reus)


(i)

Introduction: WW [14.1]-[14.6], [14.11]

(ii)

Automatism and Voluntariness:


o Ugle v The Queen (2002) 189 ALR 22 extracted at WW [4.25C], [4.26]
o R v Falconer (1990) 171 CLR 30 extracted at WW [14.12C]

(iii)

(iv)

Causation: result crimes vs conduct crimes (see further Topic 5.2 (d) Homicide)
Generally: WW [4.28C]-[4.29], [4.31]

Abolition of year-and-day rule: s.9AA

o R v Hallett [1969] SASR 141, WW [4.28C]
o Royall v R (1991) 172 CLR 378, WW [4.30C]
o R v Blaue [1975] 1 WLR 1411
o R v Pagett (1983) 76 Cr App R 279
o R v Evans & Gardiner (No 2) [1976] VR 523

Omissions: B&M [3.80]
! See also negligent manslaughter.


(c) Fault Elements: (Mens Rea)
(i)

Subjective and Objective Tests: WW [1.35]-[1.36]

(ii)
(iii)

Intention (contrast with motive): WW [1.58]


Recklessness: B&M [3.200], [3.205], [3.210]
! See assault and homicide.
Negligence: B&M [3.220]
! See negligent manslaughter
Strict Libaility/Absolute Liability: WW [1.32].

(iv)
(v)

(d) External/Physical and Fault Elements Must be Contemporaneous

Fagan v Metropolitan Police Commissioner [1968] 3 All ER 422 WW [2.23C]

Thabo Meli v R [1954] 1 All ER 373, WW [4.43C]

Further reading:
o

B&M [3.355]


(e) Proving Criminal Liability

Legal/persuasive burden vs. evidential burden: WW [1.71]-[1.85]


12

Topic Four: Non-Fatal, Non-Sexual Offences Against the Person



Part 1: Common Law (CL) Assault

(a) Generally:
o
o
o

WW [2.1]-[2.4]

R v Patton [1998] 1 VR 7, WW [2.26C]

Summary Offences Act 1966 (Vic) s.23

Crimes Act 1958 s.320

(b) Definition of assault and distinction between assault and battery


o
o
o

Fagan v Metropolitan Police Commissioner [1968] 3 All ER 422, WW [2.23C]



R v Ireland [1997] 4 All ER 225, WW [2.34 (No. 7)]

(compare with assault in ss.31 and 40 as defined in s.31(2))


(c) External/Physical Elements of Common law assault

(i)

Non-physical interference

Positive Act/words:
o R v Ireland [1997] 4 All ER 225, WW [2.34 (No. 7)]

o Additional reading: B&M [10.30], [10.35], [10.40];

Apprehension of Violence:
o WW [2.7]-[2.9];

o Ryan v Kuhl [1979] VR 315 WW [2.8]
compare with Brady v Schatzel [1911] St R Qd 206, WW [2.8]

o Zanker v Vartzokas (1988) 34 A Crim R 11, WW [2.34 (esp No 1 and 4)]

Conditional Threat: B&M 10.55,
o Rozsa v Samuels [1969] SASR 205, WW [2.30C]

o Tuberville v Savage (1669) 1 Mod 3 (86 ER 684), WW [2.30C]

(ii) Physical Interference: B&M [10.95]
o Fagan v Metropolitan Police Commissioner [1968] 3 All ER 422, WW [2.23C]

o Additional reading: Collins v Wilcock [1984] 3 All ER 374


(d) Fault Elements of common law assault

(i)

Intention/Recklessness: WW [2.5]-[2.6]

o R v Campbell [1997] 2 VR 585, WW [2.29C]
13

Part 2: Offences against the person under the Crimes Act 1958 (Vic)

(a) General outline

WW [2.17E]-[2.18E]

(b) Causing or threatening injury - external/physical elements (Actus reus)



(i)

Cause
! See causation under Elements of a crime.

(ii) Injury offences (I)
o s.18 - defined in s.15

(iii) Serious Injury offences (SI)
o ss.15A, 15B, 16, 17 and 24 - defined in s.15

(iv) Threat to Kill/Inflict Serious Injury
o ss.20 and 21

(c) Fault Elements (Mens rea)



(i)

Intention
o ss.15A, 16, 18, 19A, 20(a), 21(a),
o R v Westaway (1991) 52 A Crim R 336, WW [2.32C]

(ii) Recklessness
o ss.15B, 17, 18, 20(b), 21(b)
o R v Campbell [1997] 2 VR 585, WW [2.29C]

(iii) Negligence
o s.24

(d) Other offences against the person


(i) Endangerment
o ss.22 and 23
o WW [2.33C]
o R v Abdul-Rasool (2008) 180 A Crim R 556, WW [2.33C]

(ii) Stalking
o s.21A
o WW [2.21]
o DPP (Vic) v Sutcliffe [2001] VSC 43

14

Part 3: the Defence of consent


o WW [2.3]-[2.4], [3.18]-[ 3.19C]



o R v Brown [1994] 1 AC 212, WW [2.35C]-[2.36]
o Specific instances:

Tattooing and Branding: R v Wilson [1996] 3 WLR 125, B&M [10.155]



Surgery: WW [2.40]-[2.43]

Boxing: Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331, WW [2.39]

Female genital mutilation: ss.32, 34, 34A, WW [2.22], B&M [10.115]


Further reading:

o Chris Davies, Criminal law and assaults in sport: An Australian and Canadian perspective,
(2006) 30 Crim LJ 151.

o Marie Fox and Michael Thomson (2005) 'Short Changed? The Law and Ethics of Male
Circumcision', (2005) 13 The International Journal of Childrens Rights 161.

Table of assaults


Unlawful touching or
fear/apprehension of
immediate force (AR)
Injury under s15 (AR)
Serious injury under s15
(AR)
Threat to kill (AR)

Intention (MR)
Common law assault or
s. 23 Summary Offences Act

Recklessness (MR)
Common law assault or
s. 23 Summary Offences Act

Negligence (MR)
No offence

s.18 Crimes Act


No threat offence
s.15A Crimes Act
s.16 Crimes Act
s.21(a) Crimes Act (threat)

s.18 Crimes Act


No threat offence
s.15B Crimes Act
s.17 Crimes Act
s21(b) Crimes Act (threat)

No offence

s. 20(a) Crimes Act

s. 20(b) Crimes Act

No gross violence offence

s. 24 Crimes Act
No threat offence

No offence

15

Topic Five: Homicide


Background reading: F&K ch 4.



Part 1: Categories of Homicide

(a)

Common law homicide


Murder: s.3
Manslaughter: s.5

o
o

(b)

Statutory homicides
(i)
(ii)
(iii)
(iv)
(v)
(vi)

Culpable driving causing death: s.318, B&M [9.180]


Dangerous driving causing death: s319
Suicide pact: ss.6A, 6B, 463B (prevention of suicide), B&M [9.190]-[9.205]
Abortion: ss.65&66
Infanticide: s.6 WW [4.7], [5.3]-[5.6].
Arson causing death: s.197A

Part 2: Common External/Physical Elements


(a) Common Law Definition of Murder/Manslaughter

WW [4.1]-[4.4], [4.9], [4.12], [4.21]-[4.23]


Abolition of year-and-a-day-rule: s.9AA

o
o

(b) Kills

Human Tissue Act 1982 (Vic) s.41


Ugle v The Queen (2002) 189 ALR 22, WW [4.9], [4.21] [4.25C], [4.26]
Ryan v R (1967) 121 CLR 205, 214, 231 [see WW [4.30C p. 194]

Further reading:
o DPP v Farquharson [2009] VSCA 307 (17 December 2009)
o
o
o

(c) Human Being

WW [4.12][4.14]

A-Gs Reference (No 3 of 1994) [1998] AC 245, WW [4.14]

(d) Causation (see also Topic 3(b) above)

o
o
o
o
o
o
o
o
o

R v Hallett [1969] SASR 141, WW [4.28C]


R v Smith [1959] 2 QB 36, WW [4.29]
R v Pagett (1983) 76 Cr App R 279
R v Evans & Gardiner (No 2) [1976] VR 523
R v Jordan (1956) 40 Cr App R 152, WW [4.29]
R v Malcharek; R v Steel [1981] 2 All ER 422
Royall v R (1991) 172 CLR 378, WW [4.30C]
Stephenson v State 179 NE 633 (Ind 1932), WW [4.31]
R v Blaue [1975] 1 WLR 1411

16

Part 3: Murder

(a) Fault Elements for Murder

(i)

WW [4.32]-[4.35]

Intention to Kill or Cause Grievous Bodily Harm /Recklessness as to Death or GBH


o WW [4.34]-[4.37]
o R v Crabbe (1985) 58 ALR 417, WW [4.40C]
o Meyers v R (1997) 147 ALR 440, WW [4.37]

(ii) Meaning of Grievous Bodily Harm


o WW [4.37]
o R v Rhodes (1984) 14 A Crim R 124
o DPP v Smith [1961] AC 290, WW [4.37]

(iii) Degree of Recklessness
o WW [4.41 No.6]
o R v Crabbe (1985) 58 ALR 417, WW [4.40C]
o Boughey v R (1986) 161 CLR 10

(b) Transferred Malice


o
o
o

WW [4.38][4.39]
R v Saunders and Archer (1577) 2 Plowd 473; 75 ER 706, WW [4.39]
A-Gs Reference (No 3 of 1994) [1998] AC 245, WW [4.14]

C.f. Martin (1995) 85 A Crim R 587

(c) Constructive Murder

o
o

Crimes Act, s3A


WW [4.49]-[4.52]

o
o
o

R v Ryan & Walker [1966] VR 553, WW [4.55C]


R v Butcher [1986] VR 43 WW [4.51] (discussed in R v Galas WW [4.56C])
R v Galas [2007] VSCA 304, WW [4.56C]

Part 4: Manslaughter

(a) Generally

Involuntary/Voluntary: WW [5.1]-[5.2], [6.1]-[6.3]

(b) Unlawful and Dangerous Act Manslaughter

o WW [6.4C]-[6.5]

(i) Unlawful
o R v Lamb [1967] 2 QB 981, WW [6.5 No. 1(a)]
o Pemble v R (1971) 124 CLR 107, WW [6.5 No. 1(b)]
(ii) Dangerous
o Wilson v R (1992) 174 CLR 313, WW [6.4C]
o Crimes Act (Vic) s.4A (one punch law introduced in 2014)

(iii) The role of consent
***See Topic 4 Part 3 above
o R v Stein [2007] VSCA 300; WW [2.36 No. 2]

17

(c) Negligent Manslaughter


o

WW [6.3], [6.7]-[6.11]


(i)

Gross departure from the standard of care


o Nydam v R [1977] VR 430; WW [6.9C]
o R v Lavender (2005) 222 CLR 67, WW [6.10C];

Further reading:
o B&M [9.155]-[9.170]
o B&M [9.165]

(ii) Manslaughter by Omission
o WW [6.3]

Duty of care duty to act?
A. Statutory duties

B. Common Law Duty relationships: e.g. parents re: children, doctor re: patient

C. Creation of a situation of danger:
o Miller [1983] 2 AC 161; [1983] Crim LR 466 WW [2.25C] (and commentary)

D. Assumption of responsibility
o R v Instan (1893) 17 Cox CC 602, WW [6.12C]
o R v Stone & Dobinson [1977] 1 QB 54, WW [6.14C]
o R v Taktak (1988) 34 A Crim R 334, WW [6.17 No. 1]

(d) A merger of Unlawful and Dangerous Act and Negligent Manslaughter?


o

WW [6.11 No. 3]

(e) Further reading:


ABC Radio Law Report: The Trial of Leon Borthwick Parts 1, 2 and 3
http://www.abc.net.au/rn/lawreport/stories/2011/3119705.htm

Tracey Booth, Crime Victims and Sentencing: Reflections on Borthwick (2011) 36/4 Alternative Law
Journal 236-239

Sentencing Act 1991 (Vic) s.9C Custodial sentence with non-parole period of at least 10 years to be
imposed for manslaughter by a punch or strike.

http://www.abc.net.au/news/2014-08-17/one-punch-killers-to-get-10-years-jail-under-new-victorian-
laws/5676346

Julia Quilter The Thomas Kelly Case: Why a one-punch law is not the answer (2014) 38 Criminal Law
Journal 16

F&K: chapter 4
B&M: chapter 9


18

Topic Six: Criminal Defences


Part 1: General
o
o

Crimes Act 1958 (Vic) ss.322G-322J (introduced by the Crimes Amendment (Abolition of Defensive
Homicide) Act 2014 (Vic)).
Crimes Amendment (Abolition of Defensive Homicide) Bill 2014 (Vic) second reading speech at
http://hansard.parliament.vic.gov.au/isysquery/56c71a69-5996-4260-837a-e430e7051597/2/doc/


Further reading:
o Parliament of Victoria Research Brief No 8 (July 2014): Crimes Amendment (Abolition of Defensive
Homicide) Bill 2014 Parliamentary Library and Information Service 2014.


Part 2: Self-defence
o
o
o
o

Background: Victorian Law Reform Commission, Defences to Homicide Final Report, 2004 pp.60-105.
WW [5.8]-[5.9], [12.2]-[12.3]
Crimes Act ss.322G-322I; 322K, 322L, 322N
Zecevic v DPP (Vic) (1987) 162 CLR 645, WW [5.9], [12.4C]

Crimes Act 1958 (Vic) ss.322O-322Q

o
o

Crimes Act 1958 (Vic) ss.322R-322S


R v Dudley and Stephens (1884) 14 QBD 273 WW [12.6]-[12.8C]

o
o
o

Crimes Act 1958 (Vic) s.322T


WW [15.1]-[15.22]
R v OConnor (1980) 146 CLR 64, WW [14.23C]


Part 3: Duress

Part 4: Sudden or extraordinary emergency

Part 5: Intoxication


Part 6: Family Violence and defences
Victorian Law Reform Commission Defences to Homicide: Final Report 2004 pp 129-142.
Crimes Amendment (Abolition of Defensive Homicide) Bill 2014 (Vic) Explanatory Memorandum pp.2-8.
Department of Justice, Defensive Homicide: Proposal for Legislative Reform (September 2013)
https://assets.justice.vic.gov.au/justice/resources/f9d7181e-5bef-47b6-814b-
183eeb8d8be5/defensivehomicideconsultationpaper2013.pdf
o Osland v R (1998) 197 CLR 316, WW [11.13C]
o Crimes Act 1958 (Vic) s.3B (abolition of the defence of provocation)

Evidence of family violence when arguing one of the defences:
o Crimes Act 1958 (Vic) ss.322J, 322M, 322P application family violence to self defence
o Crimes Act 1958 (Vic) s.322P application of family violence to duress

o
o
o

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