13 REASONABLENESS

13.1. INTRODUCTION

The text provides a holistic view of the administration of criminal justice by presenting
and examining statutory provisions.1 Chapters 1 to 6 comprise the general approach of
Australian criminal law that involves a combination of statutory interpretation, element
analysis and discretions. It explores how criminal responsibility and punishment are
typically resolved, by examining the offence provision itself, pre-trial choices, the
general criminal law including fault elements, results and circumstances, as well as the
courts assessment of the seriousness of the offence.2 Contrastingly, chapters 7 to 11
explore the more complex aspects of criminal law that fit poorly with, or are exceptions
to, the traditional element analysis, as well as taking into consideration the role of
victims.3 The notion of reasonableness underpins the entire textbook4 as well as the
administration of criminal justice as it serves to direct its reasoning and rationality.

Whilst 13.1 attempts to provide a definition of reasonableness based on scholarly

articles and statutes, the problems and complexities involved in providing a complete
definition are explored in 13.2 where the three main approaches to criminal justice,
moral wrongness, individual autonomy and community welfare, are compared and
contrasted. Recent controversies are explored in 13.3 to highlight the controversial and
contested nature of reasonableness, and in 13.4 a case study and in-depth analysis of the
criminal justice system and its procedures are explored, specifically in relation to
Chapter 5, Circumstances, and Chapter 10, Exceptions.

Two case studies will be canvassed throughout the Chapter in order to provide an
overview and analysis of the notion of reasonableness. The article, Charges Over
Melbourne Explosion Dropped5 explores the necessity in establishing recklessness and
negligence, and its impact on results and the notion of reasonableness. The article,
Chippendale Victim Storms Out of Court as Teen Jailed For Setting Her Alight in Alley6
explores exceptions to offences such as duress. Both articles draw upon substantive
elements of the criminal law and procedures in NSW in order to provide a more
thorough and complete overview of the concept reasonableness.

1
Jeremy Gans, Modern Criminal Law of Australia (Cambridge University Press, 1st ed, 2012) 3.
2
Ibid 192.
3
Ibid 5.
4
Ibid.
5
Joel Cresswell, Charges Over Melbourne Explosion Dropped, The Sydney Morning Herald
(online) 12 November 2014 <http://news.smh.com.au/breaking-news-national/charges-over-
melbourne-explosion-dropped-20141112-3k5zm.html>.
6
Peter Bibby, Chippendale victim storms out of court as teen jailed for setting her alight in alley,
The Sydney Morning Herald (online) 18 August 2014
<http://www.smh.com.au/nsw/chippendale-victim-storms-out-of-court-as-teen-jailed-for-
setting-her-alight-in-alley-20140818-105b4m.html>.

1
 VICTIMS
Victims act as potential witnesses,45 a protected
person, an applicant and a party.46 However,
this runs the risk that they be held liable for
costs, held to be complicit, or prosecuted for
inaccurate testimonies.47
EXCEPTIONS
Criminal liability is excepted if the conduct is
consistent with other laws or if it is reasonable
in all the circumstances, such as duress,
emergencies and self-defence.42 Reasonable
excuse is based on the reasonableness of the
defendants conduct, allowing the scope of the
excuse to be shaped and flexible, that provides
an equilibrium between the purpose of the
provision and the exception.43 Alternatively, a
lawful excuse must be both reasonable and
lawful. However, opponents claim that such a
defence places uncertainty and ambiguity on the
legal system.44
FAILURES
Someone can be criminally responsible when
some or all of the offences physical elements
never occur if intention, attempt, incitement or
conspiracy can be proved.37 Problems arise
when crimes involve innocuous conduct,
ambiguous thoughts, a variety of future
contingencies,38 distant conduct39 or the
stacking together of general offences.40 A person
can generally be convicted of a failed crime if
the crime was inevitably going to fail, the
defendant changed their mind, or if the crime
that failed was itself a preparatory step to
another crime.41
GROUPS
Particular rules, fault elements, narrow defences
and general rules criminalises group crime if the
defendant procured that conduct or aided,
abetted, counseled or procured anothers
offending (if recklessly, if it was likely that the
offence would be committed, or if they agreed to
act with the other while aware of the
possibility).35 Thus someone can be criminally
responsible when someone else commits an
offences conduct element.36
STANDARDS
Some offending can only be distinguished
through examining what the offender did
according to a non-factual standard such as
hypothetical facts26 and assessments of
morality.27 This may be done via physical
elements that are defined in terms of how the
law,28 society29 and the defendant characterizes
the behaviour, or done based on an assessment
of facts that might have happened30 and their
possible results.31 The courts may apply an
ordinary peoples assessments of the
defendants behaviour,32 which typically
involves an assessment of the entire
transaction33 as well as the defendants
thoughts.34
WORDS
Statutory interpretation requires reference
to, and reasonable interpretation of, their
ordinary meaning, their context, the
purpose of the Act and the purpose of the
section.4
REASONABLENESS
SENTENCES
Sentencing decisions can surpass both the
meaning of offence provisions and the
minute differences drawn by the criminal
law.22 They depend on the facts of the
case23 that considers the nature and
circumstance of the offence.24 The sentence
may be reduced by factors specific to the
offender, and there must be
proportionality between the totality of the
offending and the punishment.25
CHOICES
Policing is done on the basis of reasonable
grounds and proportionality, which
personalizes and customizes the criminal
justice system.5 Prosecuting and their different
modes are done on the basis of a reasonable
prospect of a conviction and the publics
interest.6 Gans also explores the reasoning put
forward for the prosecution and the reasonable
persons test for an offence.7 Finally, regulating
is based on an offences definition that
expressly allows discretionary decisions.8
These, along with trial practices, encompass the
law of criminal procedure.9
CONDUCT
Physical elements are based on conduct, results
and circumstances.10 Gans notes that the acts
must be the result of the defendants will,
omissions are ones that are capable of being
carried out and states of affairs are ones that
are capable of being controlled.11 Fault
elements are a matter of statutory
interpretation, which are based on whether the
provision implies that the conduct must be
intentional, or whether the broader aspects of
the offence requires an intent requirement.12
RESULTS
Interpreting offences, assigning accountability
for results and establishing a connection must
be reasonable. One component in establishing
recklessness is that the defendant must have
actually known, or an ordinary person would
reasonable have foreseen, the risk that the result
will occur.13 Alternatively, negligence involves
the failure to reach the objective standard of a
reasonable person.14 The defence of honest and
reasonable mistake of fact,15 and where the
person could not reasonably be expected to
protect against physical elements that are in
uncontrollable results, are stand-alone
exceptions to criminal responsibility.16
CIRCUMSTANCES
Circumstance elements are arguably the most
troublesome physical element.17 The reasonable
excuse test allows for alternative approaches
based on characteristics and circumstances
known to the defendant.18 Moreover,
enactments attempt to enable parliament to
resolve questions of criminal responsibility for
themselves. 19 Proof of fault elements is a matter
of interpretation from surrounding contexts.20
For circumstances fundamental to a conduct
element, intention must be proven. For
circumstance merely associated, recklessness
must be proven.
2 21
7891011121314151617181920212223242526272829303132333435363738394041424344454647484950

7
Ibid 26.
8
Ibid 50.
9
Ibid 57.
10
Ibid 60.
11
Ibid 63.
12
Ibid 45.
13
Ibid 74.
14
Ibid 97.
15
Ibid 78.
16
Ibid 108.
17
Ibid 110.
18
Ibid 119.
19
Ibid 120.
20
Ibid 125.
21
Ibid 132.
22
Ibid 136.
23
Ibid 137.
24
Ibid 159.
25
Ibid 161.
26
Ibid 162.
27
Ibid 190.
28
Ibid 168.
29
Ibid 192.
30
Ibid 193.
31
Ibid 195.
32
Ibid 196.
33
Ibid 201.
34
Ibid 204.
35
Ibid 210.
36
Ibid 213.
37
Ibid 214.
38
Ibid 250.
39
Ibid 251.
40
Ibid.
41
Ibid 258.
42
Ibid 267.
43
Ibid 276.
44
Ibid 279.
45
Ibid 313.
46
Ibid 294-5.
47
Ibid 296.
48
Ibid 317.
49
Ibid 318.
50
Ibid 343.

3
13.2 THE PROBLEM WITH REASONABLENESS

13.1.1 DEFINING REASONABLENESS

Reasonableness is a contested notion that underpins the common law system.51 It is
difficult to define but can be described as the application of rational, logic, sound, valid
and appropriate judgement.52 It involves a consideration from a collective perspective
that is in light of the interests of others53 and is based on both the facts and
circumstances surrounding the conduct and the relevant legislation.54 It can be classified
as both an objective and subjective term. Objectively, it is judged by the standards of the
reasonable person. That is, it is based on the norms and social standards of a collective
society. Subjectively, it is a discretionary concept where an individual whose perception
of what is reasonable may differ to that of others.55

The notion of reasonableness in the terms of the aims of the criminal justice system in
NSW can be conceptualised through the Law Enforcement (Powers and Responsibilities)
Act 2002 (NSW). It is an Act to establish and reiterate the law concerning police and
other law enforcement officers powers and responsibilities.56

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

99 Power of police officers to arrest without warrant

(1) A police officer may, without a warrant, arrest a person if:
(a) the police officer suspects on reasonable grounds that the person is committing
or has committed an offence, and
(b) the police officer is satisfied that the arrest is reasonably necessary for any one or
more of the following reasons

(3) A police officer who arrests a person under this section must, as soon as is
reasonably practicable, take the person before an authorized officer to be dealt with
according to law.

In his second reading speech,57 Paul Lynch asserts that the inclusion of a reasonable
grounds to suspect establishes an objective test acting as a precondition of every arrest.
Moreover, the requirements of s 99 provides and ensures an equilibrium between the
proper and reasonable exercise of police powers and the need of citizens to live their
lives without fear of unreasonable interference by police.58 In forming this reasonable

51
George P Fletcher, The Right and the Reasonable (1985) 98 Harvard Law Review 949.
52
William Terrill, The Elusive Nature of Reasonableness (2009) 8 Criminology and Public Policy 163.
53
James W Boettcher, What is Reasonableness? (2004) 30 Philosophy Social Criticism 597.
54
Mathew W Green, Whats So Reasonable About Reasonableness? Rejecting a Case Law-
Centered Approach to Title VIIs Reasonable Belief Doctrine (2014) 62 Kansas Law Review 759.
55
Geoffrey Davies, The Oxford Companion to the High Court of Australia (Oxford University Press,
1st ed, 2001).
56
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
57
New South Wales, Parliamentary Debates, Legislative Assembly, 30 October 2013, 25590 (Paul
Lynch).
58
Ibid.

4
suspicion, police officers must consider the nature and seriousness of the offence.59
Lynch goes on to assert that the reasons that establish an arrest that would be
reasonably necessary60 are, in itself, entirely reasonable.61

Finally, the Crimes Act 1900 (NSW) similarly conceptualises the notion of
reasonableness. It is an Act to consolidate the Statutes relating to Criminal Law.62

Crimes Act 1900 (NSW)

418 Self-defence-when available

(1) A person is not criminally responsible for an offence if the person carries out the
conduct constituting the offence in self defence.

(2) A person carries out conduct in self-defence if and only if the person believe the
conduct is necessary:
(a) to defend himself or herself or another person,
(b) or to prevent or terminate the unlawful deprivation of his or her liberty or the
liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person
committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives

them.

In his second reading speech, Bob Debus63 reiterates this notion. He states that it is not a
completely objective test when determining if the accused believed upon reasonable
grounds that it was necessary in self-defence.64 It is the belief of the accused and not that
of the hypothetical reasonable person in the position of the accused that has to be
reasonable, as it is based on the circumstances as the person perceived them to be, even
if this perception is wrong.65 Under s 419, the prosecution bears the legal onus in
establishing beyond reasonable doubt that the accused was acting in self-defence.

Crimes Act 1900 (NSW)

419 Self-defence-onus of proof

In any criminal proceedings in which the application of this Division is raised, the
prosecution has the onus of proving, beyond reasonable doubt, that the person did
not carry out the conduct in self-defence.

59
Ibid.
60
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99(1)(b).
61
New South Wales, Parliamentary Debates, Legislative Assembly, 30 October 2013, 25590 (Paul
Lynch).
62
Crimes Act 1900 (NSW).
63
New South Wales, Parliamentary Debates, Legislative Assembly, 28 November 2001, 19093
(Bob Debus).
64
Ibid.
65
Ibid.

5
13.1.2 CONTESTED NOTIONS OF REASONABLENESS
The three modern approaches to criminal responsibility generally aim at deterring moral
wrongness, protecting individuals rights and preserving community welfare.66 However, as
these approaches ultimately emphasise the rights and interests of one of its stakeholders
over the other, these approaches may lead to contested notions about reasonableness in
regards to the case study of euthanasia, and lead to different legal and policy reforms, with
different outcomes.

Moral wrongness is an approach that utilises social continuums of morality to establish

immoral criminal behaviour that undermines society.67 Such an approach would reason that
euthanasia violates the sanctity of life, may lead to involuntary or non-voluntary euthanasia,
and may lead to a slippery slope where euthanasia is extended, for example, from not only
the terminally ill and suffering, but to the elderly, the poor and so forth.68 Thus such an
approach would find it unreasonable to legalise euthanasia, ultimately leading to the
preservation of the Crimes Act 1900 (NSW) ss 18 and 31C, which state:

Crimes Act 1900 (NSW)

18 Murder and manslaughter defined

(1) (a) Murder shall be taken to have been committed where the act of the accused,
or thing by him or her omitted to be done, causing the death charged, was done or
omitted with reckless indifference to human life, or with intent to kill or inflict
grievous bodily harm upon some person, or done in an attempt to commit, or during
or immediately after the commission, by the accused, or some accomplice with him
or her, of a crime punishable by imprisonment for life or for 25 years.

Crimes Act 1900 (NSW)

31C Aiding etc suicide

(1) A person who aids or abets the suicide or attempted suicide of another person
shall be liable to imprisonment for 10 years.

(2) Where:
(a) a person incites or counsels another person to commit suicide, and
(b) that other person commits, or attempts to commit, suicide as a consequence of
that incitement or counsel

that firstmentioned person shall be liable to imprisonment for 5 years.

Such an approach would also be against the treatment of euthanasia as a medical issue,
rather than a legal issue.69

66
Gans, above n 1, 3.
67
Ibid.
68
LAW109-2014s1, Task 2, Scenario [3], Group Summary, Ward Chamber.
69
Ibid.

6
Individual autonomy is an approach that upholds the rights of individuals to have as much
freedom as possible, as long as it does not seriously impact on anyone else. It is advocated
that this is vital to the proper functioning of society.70 Such an approach would reason that
euthanasia upholds a persons individual autonomy, right to self-determination and right to
die with dignity, and thus would find it reasonable to exempt cases in which the purpose is
to end intolerable pain and suffering for patients with a terminal illness from the Crimes Act
1900 (NSW), specifically ss 18 and 31C.71 Such an approach would also reason that
euthanasia should be treated as a medical issue, rather than a legal issue.72

Finally, community welfare is an approach that promotes and protects the communitys
safety, physical wellbeing and interests.73 Such an approach may utilise and draw upon
concepts found in both the moral wrongness and individual autonomy approaches, leading
to a middle ground and equilibrium between the two. In one sense, the community welfare
approach would be against the legalisation of euthanasia, subsequently preserving the
Crimes Act 1900 (NSW), specifically ss 18 and 31C.74 It would also find it unreasonable to
treat euthanasia as a medical issue, rather than a legal issue. This is due to the need to
protect the community from a slippery slope that may occur.75 Alternatively, if the
communitys interests were that of strongly being in favour of euthanasia, the community
welfare approach may reason that euthanasia should be legalised, exempting if from the
Crimes Act 1900 (NSW) ss 18 and 31C, or alternatively, reason that euthanasia should be
treated as a medical issue, rather than a legal issue.76 If such a legal or policy reform were to
be established, it would be of the utmost importance in determining how the process will be
regulated, so that the law isnt misused or abused. If the act can be determined as voluntary,
a standard or benchmark for what will constitute intolerable pain and suffering is created,
and a process established to confirm the patients soundness of mind and mental capacity,
the community welfare approach may endorse the movement.77

70
Gans, above n 1, 3-4.
71
Group, above n 68.
72
Ibid.
73
Gans, above n 1, 4-5.
74
Group, above n 68.
75
Ibid.
76
Ibid.
77
Ibid.

7
13.2. CURRENT CONTROVERSIES

The article Charges Over Melbourne Explosion Dropped78 emphasises the notion of
reasonableness in the criminal justice system. Leon Firth was charged with recklessly
causing serious injury and negligently causing serious injury, when the gas canister that
he had opened in an attempt to commit suicide exploded causing serious injuries to
police and fire fighters.79 The Court held that Firth could not have known that his actions
would place others at risk, and dismissed the charges against him. The relevant law is the
Crimes Act 1900 (NSW) ss 35 and 54, which state:

Crimes Act 1900 (NSW)

35 Reckless grievous bodily harm or wounding

(2) Reckless grievous bodily harm, A person who:

(a) causes grievous bodily harm to any person, and
(b) is reckless as to causing actual bodily harm to that or any other person,

is guilty of an offence.

Crimes Act 1900 (NSW)

54 Causing grievous bodily harm

Whosoever by any unlawful or negligent act, or omission, causes grievous bodily

harm to any person, shall be liable to imprisonment for two years.

The article80 highlights the notion of reasonableness. Although the actus reus of grievous
bodily harm was inflicted, the defendant lacked the mens rea, as the accused did not
realise that the harm may possibly be inflicted but continued anyway.81 Thus, to sentence
an accused that did not fulfil the mens rea requirement would be unjust and
unreasonable.

Finally, the article Chippendale Victim Storms Out of Court as Teen Jailed For Setting Her
Alight in Alley82 similarly highlights the notion of reasonableness in the criminal justice
system. MF received a maximum 6 year jail sentence, with a minimum of 3 years, after

78
Cresswell, above n 5.
79
Ibid.
80
Ibid.
81
Judicial Commission of New South Wales, Assualt, Wounding and Related Offences, (26 March
2014) Judicial Commission of New South Wales <
http://www.judcom.nsw.gov.au/publications/benchbks/sentencing/assault_wounding_offences.h
tml>.
82
Bibby, above n 6.

8
setting Miss K alight leaving her with burns that covered 45% of her body.83 The Court
took into consideration the full circumstances surrounding the case such as the severe
duress MF was under from his older cousin, his youth, his remorse, his guilty plea, and
because he had agreed to help police prosecute his cousin.84 The relevant law is the
Crimes Act 1900 (NSW) s 33, which states:

Crimes Act 1900 (NSW)

33 Wounding or grievous bodily harm with intent

(1) Intent to cause grievous bodily harm. A person who:
(a) wounds any person, or
(b) causes grievous bodily harm to any person

with intent to cause grievous bodily harm to that or any other person is guilty of an
offence.

The article85 depicts the challenges associated with the notion of reasonableness.
Although the victim, Miss K, believed that the sentence was unreasonable due to the
psychological and physical conditions she suffered, the Court held that the mitigating
factors and defence of duress raised, reasoned and justified the sentence. The case thus
highlights the contested, subjective and discretionary nature of the concept of
reasonableness, and the difficulties and challenges the criminal justice system faces.

83
Ibid.
84
Ibid.
85
Bibby, above n 6.

9
13.3. CRIMINAL LAW AND PROCEDURE IN NSW

13.3.1 CHAPTER IN FOCUS 1 RESULTS

Interpreting offences, assigning accountability for results and establishing a connection
must be reasonable.86 In determining responsibility for results foreseen and unforeseen
results are examined. Of particular importance to the notion of reasonableness is the
establishment of recklessness, that is, the defendant must have actually known, or an
ordinary person would reasonably have foreseen, the risk that the result will occur.87
Alternatively, negligence involves the failure to reach the objective standard of a
reasonable person88 Finally, for some offences that lack a subjective fault element, the
general criminal law relies on the defence of honest and reasonable mistake of fact,89
where the person could not reasonably be expected to protect against physical elements
that are in uncontrollable results.90 Such a result would occur if the accused took all
reasonable care, which involves consideration of what a reasonable man would have
done in all the circumstances, and if the accused reasonably believed in a mistaken set of
facts, or if they took all reasonable steps to prevent the specific result.91

The central concepts of results and reasonableness can thus evidently be depicted
through the hypothetical case where Samantha Jayne, who shot multiple times into the
darkness of her home and murdered an intruder, claimed that although she pulled the
trigger of the gun, she did not intend to kill him. At the time, Jayne was also suffering a
substantial impairment due to an abnormality of mind. The case consequently draws
upon substantive elements of criminal law and procedure in NSW. Specifically, it draws
upon offences against the person, defences, sentencing and criminal procedure.

Crimes Act 1900 (NSW)

18 Murder and Manslaughter defined

(1) (a) Murder shall be taken to have been committed where the act of the accused,
or thing by him or her omitted to be done, causing the death charged, was done or
omitted with reckless indifference to human life, or with intent to kill or inflict
grievous bodily harm upon some person, or done in an attempt to commit, or during
or immediately after the commission, by the accused, or some accomplice with him
or her, of a crime punishable by imprisonment for life or for 25 years.

(b) Every other punishable homicide shall be taken to be manslaughter.

The core elements of offences against the person, specifically murder, includes the mens
rea of intent to inflict grievous bodily harm, intent to kill, reckless indifference to human
life, or if committed by the accused or accomplice in an attempt to commit (or during or
immediately after) the commission of a serious indictable offence, causing the death of

86
Gans, above n 1, 98.
87
Ibid 108.
88
Ibid 110.
89
Ibid 119.
90
Ibid 120.
91
Ibid 121.

10
another person.92 Thus although Jayne did not intend to kill the intruder, she acted with
reckless indifference to human life, and thus acted unreasonably.

However, partial defences to offences against the person such as provocation, substantial
impairment and excessive self-defence can reduce a sentence of murder to
manslaughter.93

Crimes Act 1900 (NSW)

23A Substantial impairment by abnormality of mind

(1) A person who would otherwise be guilty of murder is not to be convicted of

murder if:
(a) at the time of the acts or omissions causing the death concerned, the persons
capacity to understand events, or to judge whether the persons actions were right or
wrong, or to control himself or herself, was substantially impaired by an abnormality
of mind arising from an underlying condition, and
(b) the impairment was so substantial as to warrant liability for murder being
reduced to manslaughter

The question of whether the person was suffering from a mental impairment is one of
fact. This may only be relied upon if the Court is satisfied that the person is not criminally
responsible for the offence only because of a mental impairment.94

Finally, in order for the criminal justice system to remain reasonable, the courts should
consider the mitigating factor of a guilty plea when sentencing.

Crimes (Sentencing Procedure) Act 1999 (NSW)

22 Guilty plea to be taken into account

(1) In passing sentence for an offence on an offender who has pleaded guilty to the
offence, a court must take into account:
(a) the fact that the offender has pleaded guilty, and
(b) when the offender pleaded guilty or indicated an intention to plead guilty, and
(c) the circumstances in which the offender indicated an intention to plead guilty,
and may accordingly impose a lesser penalty than it would otherwise have imposed.

Therefore the chapter of Results contributes to the objective of promoting reasonableness

as the law must reasonably interpret offences, assign accountability for results and
establish a connection.95 Of particular importance to the notion of reasonableness is the
establishment of recklessness, that is, the defendant must have actually known, or an
ordinary person would reasonably have foreseen, the risk that the result will occur.96
Reprimanding those who did not hold this mens rea would be unreasonable.

92
Judicial Commission of New South Wales, Murder, (September 2014) Judicial Commission of
New South Wales
<http://www.judcom.nsw.gov.au/publications/benchbks/criminal/murder.html>.
93
Ibid.
94
Gans, above n 1, 380.
95
Judicial Commission of New South Wales, above n 92.
96
Gans, above n 1, 108.

11
13.3.2 CHAPTER IN FOCUS 2 EXCEPTIONS
Criminal liability is exempted if the conduct is consistent with other laws or if it is
reasonable in all the circumstances, such as duress, emergencies and self-defence.97
Alternatively, the criminal law can itself define exceptions, either within the offence
provisions itself, or through the general criminal law. It is typical to see exceptions
expressed in terms of reasonableness, allowing the scope of the excuse to be shaped and
flexible.98 Such a method provides an equilibrium between the purpose of the provision
and the exception.99

The central concepts of exceptions and reasonableness can thus evidently be depicted
through the hypothetical case where Tom Smith attempted to steal goods from Dan
Browns house. Subsequently, Brown killed Smith during the robbery due to what he
reasonably believed was an imminent threat to his life. The case consequently draws
upon substantive elements of criminal law and procedure in NSW. Specifically, it draws
upon offences against offences against property, offences against the person and
defences.

Property offences are mostly derived from the common law offence of larceny.

Crimes Act 1900 (NSW)

117 Punishment for larceny

Whosoever commits larceny, or any indictable offence by the Act made punishable
like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to
imprisonment for five years.

The elements of larceny were prescribed in the judgment of Illich v The Queen (1987)
162 CLR 110, which established that larceny is committed by a person who, without the
consent of the owner, fraudulently and without a claim of right made in good faith, takes
and carries away anything capable of being stolen with intent, at the time of such taking,
permanently to deprive the owner.

That is, the property must be taken and carried away by a positive act, capable of being
stolen, is in the possession of another person, is taken without the consent of the owner,
there must be an intention to permanently deprive the owner of the property, the
offender has no claim of right to the property, and there is an intention to act
dishonestly or fraudulently.100

97
Gans, above n 1, 313.
98
Ibid 294-5.
99
Ibid.
100
Judicial Commission of New South Wales, Larceny: Crimes Act 1900 (NSW), Pt 4, Subdiv 5, (10
March 2005) Judicial Commission of New South Wales
<http://www.judcom.nsw.gov.au/publications/benchbks/local/Crimes_Act.html>.

12
 Crimes Act 1900 (NSW)

18 Murder and Manslaughter defined

(1) (a) Murder shall be taken to have been committed where the act of the accused,
or thing by him or her omitted to be done, causing the death charged, was done or
omitted with reckless indifference to human life, or with intent to kill or inflict
grievous bodily harm upon some person, or done in an attempt to commit, or during
or immediately after the commission, by the accused, or some accomplice with him
or her, of a crime punishable by imprisonment for life or for 25 years.

(b) Every other punishable homicide shall be taken to be manslaughter.

The core elements of offences against the person, specifically murder, includes the mens
rea of intent to inflict grievous bodily harm, intent to kill, reckless indifference to human
life, or if committed by the accused or accomplice in an attempt to commit (or during or
immediately after) the commission of a serious indictable offence, causing the death of
another person.101 However, complete defences to murder include self-defence.102

Crimes Act 1900 (NSW)

418 Self-defence when available

(1) A person is not criminally responsible for an offence if the person carries out the
conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if the person believes the
conduct is necessary:
(a) to defend himself or herself or another person,
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the
liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to remove criminal trespass to any land or premises or to remove a person
committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as they perceive them.

That is, a subjective test is applied in determining whether the accused believed at the
time that what they were doing was necessary. It does not involve consideration of what
a reasonable person would have believed, but rather what the accused believed, even if
that belief was mistaken. An objective test is also applied in determining whether that
belief was made on reasonable grounds. It does not involve consideration of whether
the accused acted reasonably under the circumstances. It also can not be relied upon if
the person uses force the involves the intentional infliction of death or really serious
injury.103

101
Judicial Commission of New South Wales, Murder, (September 2014) Judicial Commission of
New South Wales
<http://www.judcom.nsw.gov.au/publications/benchbks/criminal/murder.html>.
102
Judicial Commission of New South Wales, Self-defence, (December 2008) Judicial Commission
of New South Wales < http://www.judcom.nsw.gov.au/publications/benchbks/criminal/self-
defence.html>.
103
Gans, above n 1, 384.

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Therefore the chapter of Exceptions contributes to the objective of promoting
reasonableness as criminal liability is exempted if it is reasonable in all the
circumstances.104 This allows for the law to remain flexible, enabling it to be shaped on a
case-by-case basis.105 As illustrated in this chapter, punishing those who acted in self-
defence would be unreasonable.

104
Ibid 313.
105
Ibid 294-5.

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13.3.3 CURRENT CONTROVERSIES IN FOCUS
The article Charges Over Melbourne Explosion Dropped106 emphasises the notion of
reasonableness in the criminal justice system. The case draws upon substantive
elements of criminal law and procedures in NSW. Specifically, it draws upon offences
against the person and sentences, whilst reiterating and highlighting some of the key
concepts found within the chapter Results. Leon Firth was charged with an offence
against the person, recklessly causing serious injury and negligently causing serious
injury.. Recklessness is of particular importance to the notion of reasonableness as the
defendant must have actually known, or an ordinary person would reasonably have
foreseen, the risk that the result will occur.107 Alternatively, negligence involves the
failure to reach the objective standard of a reasonable person.108 Firth lacked the mens
rea to commit the offence as he did not realise that the harm may possibly be inflicted
but continued anyway. 109 As a result, he was not convicted or sentenced. Thus, to
sentence an accused that did not fulfil the mens rea requirement would be unjust and
unreasonable.

Finally, the article Chippendale Victim Storms Out of Court as Teen Jailed For Setting
Her Alight in Alley110 similarly highlights the notion of reasonableness in the criminal
justice system. The case draws upon substantive elements of criminal law and
procedures in NSW. Specifically, it draws upon offences against the person, defences,
sentences and the criminal procedure, whilst reiterating and highlighting some of the
key concepts found within the chapter Exceptions. MF was charged with an offence
against the person, causing grievously bodily harm.111 However, the partial defence of
duress112, as well as other mitigating factors such as the criminal procedure of a guilty
plea, led to a lesser sentence. Although the victim, Miss K, believed that the sentence was
unreasonable due to the psychological and physical conditions she suffered, the Court
held that the mitigating factors and defences raised, reasoned and justified the sentence.
The case thus highlights the contested, subjective and discretionary nature of the
concept of reasonableness, and the difficulties and challenges the criminal justice
system faces.

106
Cresswell, above n 5.
107
Gans, above n 1, 108.
108
Ibid 110.
109
Judicial Commission of New South Wales, Assualt, Wounding and Related Offences, (26 March
2014) Judicial Commission of New South Wales
<http://www.judcom.nsw.gov.au/publications/benchbks/sentencing/assault_wounding_offence
s.html>.
110
Bibby, above n 6.
111
Crimes Act 1900 (NSW) s 33.
112
Criminal Code Act 1995 (Cth) s 10.2.

15
13.4. CONCLUSION

The notion of reasonableness underpins the criminal justice system as it serves to direct its
reasoning. However, reasonableness is a contested notion113 that bases its definition off of:
The norms and social standards of society.
Cases and statutes.
The purposes of the criminal justice system.

Current controversies highlighted in the media emphasise the controversial aspects of

reasonableness such as:
When offenders are not reprimanded for actions based on reasons, for example,
due to a lack of mens rea.114
When offenders are not reprimanded for actions that are excepted, for example,
due to duress.115

Which is again reinforced through the competing approaches of:

Moral wrongness.116
Individual autonomy. 117
Community welfare.118

The prosecution must prove that the defendant foresaw a risk of the result. These
foresight requirements may be expressed or implied by the offence provisions.119
Interpreting offences, assigning accountability for results and establishing a
connection must be reasonable120
To establish recklessness, it must be proven that the defendant was aware of a
substantial risk that the circumstance or result exists, and having regard to the
circumstances known, it is unjustifiable to take the risk.121
To establish negligence, it must be proven that the defendants conduct fell
substantially below the standard of care.122
If recklessness or negligence cannot be proven, it would be unreasonable to
reprimand the offender.

Criminal liability is exempted if the conduct is consistent with other laws or if it is

reasonable in all the circumstances. 123
To establish self-defence, it must be proven that the conduct is necessary, and the
conduct is a reasonable response in the circumstances as they perceive them.124
If self-defence can be proven, to a certain extent, it would be unreasonable to
reprimand the offender.

113
Fletcher, above n 51.
114
Cresswell, above n 5.
115
Bibby, above n 6.
116
Gans, above n 1, 3.
117
Ibid 3-4.
118
Ibid 4-5.
119
Ibid 124.
120
Ibid 98.
121
Ibid 108.
122
Ibid.
123
Ibid 313.
124
Ibid 384.

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