Royal v The Queen – victim attempted to escape from accused and jumped out of Kinash – disconnection of life support
ection of life support system has been found not to break the causal chain
CAUSATION
Prosecution bears the persuasive burden of proving the D’s guilt “beyond reasonable
doubt” and disproving the defence [Woolmington]
295 Causing death by threats
A person who, by threats/intimidation of any kind/ by deceit, causes another person to
do an act or make an omission which results in the death of that other person, is deemed
to have killed the other person. [Royall]
- Only applies when someone dies
- More facts may be req’d if there’s an intervening act (e.g. car accident – was the driver
driving negligently? Intoxicated?)
298 Injuries causing death in consequence of subsequent treatment
When a person does GBH to another, and such other person has recourse to surgical or
medical treatment, and death results either from the injury or the treatment, the person is
deemed to have killed that other person, although the immediate cause of death was the
surgical or medical treatment, provided that the treatment was reasonably proper under the
circumstances, and was applied in good faith. [Levy]
296 Acceleration of death
It is immaterial if a person is already dying from a disease or another cause and you make an
act or omission that accelerates the death. Still deemed to have killed that person.
- makes voluntary euthanasia a crime
297 – person who causes a bodily injury resulting in death causes the death even if it might
have been prevented by proper precaution by victim or by proper care or treatment [Blaue]
THREE STEPS – [Royall]
1. Operative Cause – what killed the person? (medical cause(blood loss)) [R v Hallet]
2. Causal Connection – would the death have occurred 'but for' or w/o the actions of the
accused? (yes or no) [March v Stramare] – can the medical cause of the death be
traced back to the actions of the accused? “but for the actions of the accused, would
this death have occurred?” if no – causal connection is established.
- if result would have occurred regardless of what the accused did, there is no causal
connection.
3. Causal Responsibility – is causal connection sufficiently strong to justify attributing
responsibility for death to the accused?
- Common sense test [Mason CJ]
o Involved telling the jury that causation is a matter for then to use their
common sense plus a reminder of the potential significance of the decision
o Ultimately establishing causal responsibility is a question for the jury
- Substantial contribution test
o (looks backwards from the death ,everything that has happened before)
[Krakouer v WA] mention actus reus: the act itself and mens rea: thinking
about commiting the act
- Reasonable foreseeability test [McHugh J]
o Looking forward)
o Was the death a reasonably foreseeable consequence of the actions of the
accused
o If death had been w/I the normal range of the excepted outcomes of that
conduct (means that it is objectively determined)
NOVUS ACTUS INTERVENIENS
- Intervening act that breaks chain of causation. Later actor is responsible but the act
must be ‘free, deliberate, and informed’ [R v Thomas]
TC: It is apparent from the facts that [victim] died as a result of [cause]. [Victim] wouldn’t
have died ‘but for’ [action/injury/contribution]. [D] is the cause of the victim’s death
* If causation is a live issue, consider fully (i.e. provisions, elements, etc.). Use substantial
contribution test.
CASE SUMMARIES
window to her death; death by threat/intimidation, [D] caused death as he substantially
contributed to death
Blaue – Jehovah's witness stabbed and died because of refusal of blood transfusion – this
didn’t break the chain of causation
R v Paggett – causation doesn’t require that the accused acts have to be the sole or main
cause of death, but they must have contributed significantly to that result
Levy – incorrect medical treatment provided in an emergency situation where there is no
opportunity to make a thorough assessment might not suggest negligent treatment;
patient suffering stab wounds, treated w/ drugs, contracted an infection and died
R v Hallet – [D] fought deceased, left him unconscious at end of beach and victim died
from drowning (operative cause); initial injury doesn’t have to be operative cause of
death
Krakouer v WA – victim beaten by [D] and another person; found substantial contribution
by blows that caused death; It’s enough to satisfy the requirement of causation if the act
of the accused makes significant contribution to death of the victim, whether by
accelerating the victim's death or otherwise, and that it’s for the jury to decide whether
or not the connection is sufficient substantial
R v Thomas – man convicted of manslaughter because allowed unlicensed driver to drive
car; passenger contributed to car crash and was intervening act that broke chain of
causation
HOMICIDE
293 Definition of killing
Except as hereinafter set forth, any person who causes the death of another, directly or
indirectly, by any means whatever, is deemed to have killed that other person (see TC above
for a complete description)
- Death: death occurs when all vital functions shut down (traditional) [Bland – turning
off the life support was not an active killing] vs. brainstem death (modern) [Kinash]
291 Unlawful Killing
It’s unlawful to kill any person unless such killing is authorised or justified (he tried to kill
you) or excused (drunk, etc.) by law.
- Elements:
Caused - per Royall: operative cause, causal connection, causal responsibility; but then
note any novus actus interviens
Death – legal definition of dead (cessation of all vital functions)
Another – is the victim a person per the Criminal Code?
292 When a child becomes a human being
A child becomes a person capable of being killed when it has completely proceeded in a
living state from the body of its mother, whether it has breathed or not, and whether it has
an independent circulation or not, and whether the navel-string is severed or not. [R v Iby] –
it was not relevant that the baby had to be on a respirator. Iby was liable for the
manslaughter because the injury CAUSED the fetus to die.
294 Death by acts done at childbirth
When a child dies in consequence of an act done or omitted to be done by any person
before or during its birth, the person who did or omitted to do such act is deemed to
have killed the child.
300 Unlawful Homicide
Any person who unlawfully kills another is guilty of a crime, which is called murder or
manslaughter, according to the circumstances of the case.
284 Consent to death immaterial
Cannot consent to your own death- other person may be still criminally liable
CASE SUMMARIES
R v Iby – [D] stole car and crashed into a pregnant woman, baby born but died after being
hooked up to a respirator; there was a heartbeat, some indicia of life which shows it
didn't have to rely on respirator.D said the baby was only alive because of the respirator,
so artificial life. Court said baby was alive because of heartbeat (indicia: sign of life)
Bland – follows modern idea of brain stem death; if original assailant is responsible for
death, then discontinuation isn’t a new cause of death (doesn't apply in QLD).
(omitting to preserve life rather than active act of euthanasia)
MURDER
ELEMENTS s302(1)(a) MURDER OF SPECIFIC INTENT
1. ANY PERSON WHO UNLAWFULLY KILLS (s 293 + s291)
2. INTENTION TO CAUSE DEATH OR GBH (ANY INJURY IF LEFT UNTREATED WILL CAUSE
DEATH, PERMANENT INJURY, OR DISABLITY) TO ANOTHER PERSON
- It is immaterial that the offender did not intend to hurt the particular person killed
(s302)(2)- just need to show to intent to kill someone (ex: if you try to kill someone with a
gun, but miss and hit someone else, doesn’t matter if you didn’t mean to shoot the other
person, the victim is immaterial. You still shot a gun with intent to kill someone)
a. Purpose Intention [direct intention]
- When a person intends to do something, ordinarily he/she acts in order to bring about
occurrence of that thing [Peters v The Queen]- death is intended
- To mean, To have in mind [R v Willmot (No 2)] rtyhjk,
- A confession/testimony helps prove purpose intention (not same as
motive/reason/desire/wanting to kill- can intend to kill without desiring death,these
do not prove intention)
b. Knowledge Intention [indirect intention]
- If a person does something that is virtually certain to result in another event occurring
and knows that that other event is certain or virtually certain to occur, he/she intends
it to occur [Peters v The Queen]. Death must be foreseen as a practical certainty.
- Ex: strangling someone will inevitably kill them (willmot)
o Virtual/practical certainty rather than absolute [Goncalves v The Queen]
- ASK: 1). How virtually certain was the consequence which resulted from [D]'s voluntary
act? and 2). Did [D] foresee that consequence? [R v Woollin]
- DEFENCE: s 28(3): may be too intoxicated to understand death or GBH is virtually
certain, therefore no specific intent [OR] intoxication + anger + rage (Cutter)
- DEFENCE: s 27 Insanity: no intention due to mental disease/infirmity + total
deprivation of capacities (what you are doing) [OR] mental impairment (Hawkins)
How to prove intention
- Intention can be proved by either confessional (direct) evidence or circumstantial
(indirect) evidence [R v Winner]
- Test for proving intention: persons behaviour- Obj + Subj analysis:
- ASK: What would be in the mind(subjectively) of a reasonable person who did
what the accused did? [Turner v R]
- Is there any reason why the accused’s state of mind would be different?
1 GBH means—
(a) loss of a distinct part or an organ of the body; or
(b) serious disfigurement; or
(c) any bodily injury If left untreated, would endanger /likely life, or cause/likely
permanent injury; whether or not treatment is or could have been available.
ELEMENTS s(302)(1)(b) [Constructive Murder] – no intention element(don’t have to
prove intention) ex: robbing a bank and you shoot in air and hits security guard.
1. UNLAWFULLY KILLS (s 293 + s291)
2. ACT DONE IN PROS OF UNLAWFUL PURPOSE [R v Georgiou; Stuart v R]
- Unlawful purpose must be different from the act resulting in the death [Hughes v R; R v
Gould and Barnes]
- Act done while in preparation to commit another one (can be before or after)
3. ACT LIKELY TO ENDANGER HUMAN LIFE [R v Gould and Barnes]
- Test is objective, has to be different then unlawful purpose.
- Likely = a substantial or a real, not remote, chance regardless of whether it’s less or
more than 50% [Boughey; Hind and Harwood]
DEFENCES
[D] may have a partial defence of provocation as per s 304 (even for 3rd party, as long as
sufficient nexus).- reduce to manslaughter
[D] may have a partial defence of diminished responsibility (reduce to manslaughter) as
per s 304A if [D] is suffering from an abnormality of the mind which must substantially
impair one or more of the three capacities.
[D] may have a partial defence of killing in an abusive domestic relationship if [D] killed in
absence of any immediate threat/danger, w/o loss of control, or loss of cognitive capacity
as per s 304B.
[D] may have a defence of self-defence under ss 271(2)/2 as long as there were
reasonable grounds for using force to cause death or GBH.
[D] may have a defence of insanity as per s 27 if at the time [D] was suffering from a state
of mental disease or natural mental infirmity and was completely deprived of the three
capacities.
[D] may have a defence of lack of will under s 23(1)(a) if [D] demonstrates his
conduct/act was unwilled or involuntary (reflex, external stimuli, sane automatism).
[D] may have a defence of intoxication as per s28(1) if unintentionally intoxicated.-
DRUGS OR ALCOHOL
[D] may use s28(3) for offences were specific intention is an element, in order to negate
the intention bc intoxication prevented cognitive capacity to form the requisite intent
(intentional or unintentional intoxication)- DRUGS OR ALCOHOL
CASE SUMMARIES
Willmot (No 2) – denied intent to kill her but suffocated/strangled her, just wanted to
rape her; ask whether accused realized what he was doing (death/GBH?)
R v Woollin – lost temper, threw 3 month old son on hard surface, died; no intention to
cause death, charged w/ manslaughter
Turner v R – wife left [D], followed her and found, stabbed her 65 times, died; subjectives:
diabetic, intoxication, off medication, emotional instability
R v Winner – stole care, drove into cyclist, killed, claimed no intention to kill, accused
previously for driving towards people manyaki, in control of care = intention
R v Georgiou – attempted to break into pharmacy, leaving, disturbed by neighbour, shot;
getaway part of break/enter  unlawful purpose and accused of murder
Stuart v R – act preliminary was still act done in pros of unlawful purpose, not confined to
offence itself
Hughes v R – repeatedly assaulted, wa equivalent applied only when dangerous act not
same as unlawful purpose; dangerous act of assaulting her same as unlawful purpose
R v Gould and Barnes – abortion by injecting substances into woman, died; unlawful purpose
and dangerous act not same (i.e. abort baby was purpose and inject w/ substance was act)
Boughey (Hind and Harwood) – took gun to sway robbery, held gun to man, likely to
endanger life
ATTEMPTED MURDER (306) (Max: Life)
1. Attempts to unlawfully kill another (NOT INTEND GBH) OR
 Attempts: Use CL definition of intention (not s4) - purpose intention to kill.
Cutter- impossible to prove intention unless confession is made
2. With intent unlawfully to kill another does any act, or omits to do any act which it is
the person’s duty to do so, which is likely to endanger human life
MANSLAUGHTER (Max: Life)
303: unlawfully kills ≠ murder = manslaughter
VOLUNTARY MANSLAUGHTER
Elements of murder satisfied but defence of PROVOCATION or DIMINISHED
RESPONSIBILITY or KILLING IN AN ABUSIVE DOMESTIC RELATIONSHIP applies (partial
defences to murder that reduce to manslaughter)
INVOLUNTARY MANSLAUGHTER
Unlawful killing without fault elements of murder.
1) MANSLAUGHTER BY INTENTIONAL VIOLENCE
1. Intentional infliction of force (applying force, assault, w/o intent to kill/GBH)
2. Causing death (burden on pros to establish this- use causation test above- must have
been foreseen or foreseeable as a possible outcome [Taiters])
- DEFENCE: [D] may have a defence of accident as per s 23(1)(b) if accused of intentional
manslaughter. It would need to be shown that [D] did not intend or foresee the
consequences (subj) and such consequences would not reasonably have been foreseen
by an ordinary person (obj) [Kaporonovski]. The egg-shell skull rule would apply (if the
victum has a defect or weakness not normally with people (a weak heart) it doesn’t
matter you are still responsible, you take your victim as you get them) s23(1A) lack of will
2) MANSLAUGHTER BY CRIMINAL NEGLIGENCE
- For criminal liability must establish: 1) duty to act under the Code and 2) breach of
that duty 3) it was gross negligence (serious carelessness) (Obj Test – What would
the reasonable person have foreseen and done?)
ELEMENTS
1. DUTY (ss 285-290)
- No criminal offence to stand by, a mere passive spectator of a crime, even of
murder [Coney] unless duties outlines in s 285-290 are particular to you
285 Duty to Provide Necessities (even if victim doesn’t want you to take care of them)
- Person in charge of another b/c of age, sickness, unsoundness of mind, detention, or
any other cause(family member, child, patient) someone depending on you and
cannot change there dependence.
- Duty to provide necessaries of life if they cannot themselves
- Person held to cause any consequences resulting from life or health by omission of duty
- The ‘necessaries of life’ include medical aid, food, shelter and clothes: [Macdonald and
Macdonald].
- If duty voluntarily assumed, it must be fulfilled to avoid liability b/c if not, depriving
person from someone else coming to aid (if someone came to help someone bleeding
and you stop them, then you assumed responsibility) [Taktak].
286 Duty of Person who has Care of Child
- Person in charge of child < 16 yrs
- Must: provide necessaries of life for child
- Take reasonable precautions to avoid danger to child’s life / health / safety
- Take reasonable action to remove child from danger
- Held to have caused consequences that result to life/health of child b/c omission of duty
- Regardless if child is helpless or not
- Not limited to biological parents.
288 Duty of Persons Doing Dangerous Acts
- Person undertakes to administer surgical/medical treatment to another or any other
lawful act dangerous to human life/health
- Must have reasonable skill and use reasonable care in doing act
- Held to have caused consequences that result to life/health b/c of omission of duty
[R v Patel]
- Exempts situations due to necessity or emergency
289 Duty of Persons in Charge of Dangerous Things(most common)
- Person in charge or control of anything dangerous to life/safety/health of another
- Must use reasonable care and take reasonable precautions to avoid danger
- Held to have caused consequences which result to life/health b/c omission of duty
- Thing: anything, whether living or inanimate, whether moving or stationary
- Applies whenever a thing is dangerous in particular use to which it’s put, regardless of
how innocuous it may ordinarily be [Pacino; Dabelstein]
- Have to cause injury to person
290 Duty to do Certain Acts (when victim cannot dismiss themselves)
- Undertake to do act, the omission to do which is/may be dangerous to life/health
- Duty to do act
- Person held to have caused consequences resulting to life/health b/c omission
- E.g. safe work environment requirement by employer; undertaken to do something
through no benefit of their own (i.e. lifesaver)
2. BREACH OF DUTY
3. GROSS CRIMINAL NEGLIGENCE (NEGLIGENCE OF A SERIOUS KIND)(NO ONE
ANSWER,LOOK AT THE FACTS OF THE CASE)
-
- TEST:
- What is “reasonable” or what would a “reasonable person” do to prevent harm? Not
ordinary person b/c higher standard (ordinary = flawed) [Callaghan]
- Must show such a disregard for life/safety of others as to amount to a crime against the
State and deserving of punishment[Bateman] (serious/substantial departure)
- Must be of such a degree as to meet the CL standard of criminal negligence [Callaghan
v The Queen; Jackson and Hodgetts v R]
DANGEROUS DRIVING CAUSING DEATH (MVA RELATED DEATHS)
3 possible offences under s328A
1. Murder [R v Winner] – deliberate killing w/ intention
2. Involuntary Manslaughter (s 289)- MV classified as a dangerous thing [R v Thomas]
3. Dangerous operation of a vehicle causing death (or GBH) (s328A(4) [ R v Wilson ; Balfe]
- Covers all criminal conduct in motor vehicle causing death falling short of murder
(no intention) - must cause GBH or death
- operates, or in any way interferes with the operation of, a vehicle dangerously
means operate, or in any way interfere with the operation of, a vehicle at a speed
or in a way that is dangerous to the public, having regard to all the circumstances
- Adversely affected by alcohol does not equal under the influence/intoxication
(depends on the person) so best to charge with 328A(4)(a) rather then (b)
CASE SUMMARIES
Taiters – fist-fight, fell and hit head, died; remote that someone would die from fight
R v Steindl – lens implanted in eye and abnormality, egg-shell skull rule – can include
something artificial
Macdonald and Macdonald – child treated like slave, terrible physical state, deteriorated
and died; convicted of murder b/c killed by omissions (s 286)
Taktak – collected prostitute who OD’d, tried to resuscitate but couldn’t, went to sleep,
she died; voluntarily assumed duty
Pacino – honest and reasonable belief that dogs weren’t dangerous would mean no
criminal negligence; dogs killed lady
Dabelstein – pencil inserted into woman, died; in charge of dangerous thing, should have
taken reasonable care; thing used in particular way = dangerous
Callaghan v The Queen - conviction under s 291A isn’t warranted by degree of negligence
which is no greater than would suffice to make accused civilly liable in respect of any
damage caused by his fault
Jackson and Hodgetts v R – meat preservative ingested, vulnerable state, no warnings on
preservative, could be harmful, conduct not gross criminal negligence
R v Thomas – someone else drove car, inexperience. Breached duty of ‘Persons in
charge of dangerous things’- the car that he allowed inexperienced driver to drive.
ASSAULT-BASED OFFENCES INJURY-BASED OFFENCES
Common Assault: s 335 Negligently causing Bodily Harm: s 328
AOBH : s 339 Wounding: s 323
Serious Assaults: s 340 Unlawfully causing GBH: s 320
Sexual Assaults: s 352 Torture: s 320A
Specific Intent: s 317
ASSAULT – BASED OFFENCES (LACK OF CONSENT)
s245 : LIMB 1- Assault w/ application of force
-CANT CHARGE UNDER S245
ELEMENTS
1. STRIKES, TOUCHES, MOVES OR APPLIES FORCE OF ANY KIND: applying heat, light,
electrical force, gas, odour, or any other substance or thing whatever if applied in such
a degree as to cause injury or personal discomfort.
2. DIRECTLY OR INDIRECTLY [Croft v Blair; Fagan v Metropolitan Comm. of Police] (though
3rd party, agent, device, instrument, etc) ex: encouraging dog to attack
3. W/O CONSENT, or w/o consent obtained by fraud
- DEFENCE: 24(1): honest + reasonable + mistaken belief of consent [Lergesner v Carroll]
- No requirement of intention.
s245 : LIMB 2- without application of force
ELEMENTS
1. BY ANY BODILY ACT OR GESTURE, ATTEMPTS OR THREATENS TO APPLY FORCE
- Words alone not enough BUT words/threats may be what gives a bodily movement
character of a threatening act or gesture [Hall v Fonceca] ex: words + clenched fists, or
moving hand w/o words = threatening action for assault.
- Couldn’t be an assault by threat w/o victim being aware that threat was made
2.W/O CONSENT
- Must occur w/o consent
- Cannot be obtained by fraud
- Can be expressed, implied or tacit [Kimmorley v Atherton]
- NO ASSAULT if interaction part of everyday intercourse of life [Horan and Ferguson;
Boughey v R].
- DEFENCE: 24(1): honest + reasonable + mistaken belief of consent [Lergesner v Carroll]
ex: ‘Lets settle it right now’- reasonable for [D] to view as consent
3. PERSON MAKING ATTEMPT/THREAT HAS ACTUAL OR APPARENT PRESENT ABILITY
TO CARRY OUT THE PURPOSE [Brady v Schatzel]
- Doesn’t always mean apprehension of immediate personal violence
- W/ future violence, it is relevant that there is an actual/apparent ability to carry out
that threat at the future time [Secretary] ex: ‘I will kill you in morning’ was an assault
to justify SD, D was under belief accused had ability to carry out act, so it can be
assault if you think it can happen in the future
- Intention is implied bc attempts and threats to assault presuppose an intention (can’t
threaten by accident) [Hall v Fonceca] – certain state of mind  achieve result
246(1): An assault is UNLAWFUL and constitutes an offence unless it’s authorised or
justified or excused by law(example cops using force).
S335 COMMON ASSAULT: -> no harm done. (Threats/slap/punch etc)
Any person who unlawfully assault another is guilty of a misdemeanour and is liable, if
no greater punishment is provided to imprisonment for 3 years.
INTRO: (Accused) may have commited the offence of Common Assault. This is an
offence under s335. The elements of this offence is where a person unlawfully assaults
another.
Element 1: Assaults
Section 245 Limb 1 or 2
Element 2: Defences
No defence: (Accused) will be held liable to have unlawfully assaulted (victim) his
actions are not authorized, justified or excused by law. S246(1)
Yes Defence: (Accused) may not be held liable for the killing of (victim) as his actions
are excused by the law. (Accused) may raise the defence of (defence)
S339 ASSAULT OCCASIONING BODILY HARM -> Use when bodily harm done. BUT if
harm is wounding or GBH, use Injury Based offence S323 Wounding or S320
Unlawfully causing GBH.
(1) Any person why unlawfully assaults another and thereby does the other person
bodily harm is guilty of a crime and is liable to imprisonment for 7 years.
Aggravation Factors: (3) Armed with dangerous weapon or 2 or more people: the
offender is liable to imprisonment for 10 years.
INTRO: (Accused) may have commited the offence of assaults occasioning bodily harm.
This is an offence under s339. The elements of the offence are an unlawful assault
against another thereby causing bodily harm.
Element 1: Assaults
Section 245 Limb 1
Element 2: Bodily Harm
S1: Bodily harm means any bodily injury which interferes with health or comfort
Scatchard v R (put into headlock, but suffered no injury, not sufficient)
Lergesner v Carroll (Black eye could be defined as bodily harm) R v Mallard – gained entry into club after refused admission, punched and glassed
R v Mallard (Bodily harm must be visible) bouncer; common assault b/c he punched him but no evidence of bodily harm b/c
Based on the facts, (accused) caused bodily harm to (victim) as their appears (describe masked by glassing by friend, he was accused of common assault cause not visible.
injury) which is sufficient to constitute bodily harm.
INJURY-BASED OFFENCES (EXTENT OF INJURY)
Element 3: Defences 328(1) NEGLIGENTLY CAUSING BODILY HARM
No defence: (Accused) will be held liable to have unlawfully assaulted (victim) his - Unlawful act/omission where duty exists which causes bodily harm
actions are not authorized, justified or excused by law. S246(1) - Guilty of misdemeanor and liable for 2 yrs imprisonment
- Look at duties (285-290 above) to see if any of these apply as well as definition of
Yes Defence: (Accused) may not be held liable for the killing of (victim) as his actions
bodily harm under s 1 – breach of these duties would cause INJURY here, compared to
are excused by the law. (Accused) may raise the defence of (defence) MANSLAUGHTER (DEATH) above
340 SERIOUS ASSAULT: assaults another w/ intent to commit a crime; assault, resist or - cannot consent to wounding, GBH, torture (consent is immaterial) [Lergesner v Carroll]
willfully obstruct a police officer acting in the execution of the officer’s duty; assault on a
person aged 60 or more, etc is guilty of a crime, and is liable to imprisonment for 7 323(1): Person UNLAWFULLY WOUNDS anyone – 7 yrs
yrs.(kenlin v Gardiner) so you have to know for sure he’s a cop - Wound = Breaking of the true or the whole skin (i.e. dermis and epidermis) [R v Da
Costa]. Ex: cut, slice, stab (not a scratch)
DEFENCES - An injury is unlikely to be a wound unless it bleeds [Devine v R; Jervis].
- Unlawful = prohibited/excused by law [Houghton v R]
[D] may have a defence of provocation as per s 269 if [D] was deprived of the power of
self-control, responded on the sudden before there is time for passion to cool, and if the - Consent does not matter[Lergesner v Carroll].
forced used was not disproportionate to the provocation. It would also need to be
shown that the ordinary person would have lost self-control due to the provocation. 320: Any person who UNLAWFULLY DOES GBH to another– 14 yrs (no intent)
- GBH definition s1- loss of a distinct part/organ, or serious disfigurement, or injury if
left untreated would endanger/likely to endanger life
[D] may have a defence of lack of will under s 23(1)(a) if [D] demonstrates his conduct/act
- Test is objective
was unwilled or involuntary (reflex, external stimuli, sane automatism).
- Likely = a substantial or a real, not remote, chance regardless of whether it’s
less or more than 50% [Boughey; Hind and Harwood]
[D] may have a defence of accident as per s 23(1)(b) if it can be shown that [D] did not
- Unlawful = prohibited/excused by law [Houghton v R]
intend or foresee the consequences and such consequences would not reasonable have
- Look at nature of injury itself at time harm is done and not at surrounding
been foreseen by an ordinary person. [LIMB 1 ONLY]
circumstances or availability or receipt of medical treatment [R v Lobston].
- The loss of a tooth is sufficient [R v Stuart].
[D] may have a defence of mistake of fact as per s 24 if [D] can show a honest, reasonable - Consent is does not matter [Lergesner v Carroll]
but mistaken belief that the victim consented to the assault.
320A: A person who TORTURES another person– 14 yrs
[D] may have a defence of defence of property as per s 267 if the property was a dwelling, or - Torture: intentional infliction of severe pain or suffering on a person by an act or
ss 274/5/6/7/8 if it was other types of property (i.e. car, moveable, etc.) series of acts done on 1, or more than 1 occasion [Ping].
- Pain or suffering: physical, mental, psychological or emotional pain or suffering,
[D] may have a defence of compulsion as per s 31 if the [D] is trying to save self from whether temporary or permanent.
serious harm which he/she is unable to otherwise escape, and the act is reasonably - Crown must prove intent of accused to bring about the conduct [Ping]
proportionate to the harm/detriment threatened.
317 UNLAWFULLY CAUSING GBH/WOUNDING WITH SPECIFIC INTENT [PURPOSE]
[D] may have a defence of insanity as per s 27 if at the time [D] was suffering from a state - LIFE IMPRISONMENT
of mental disease or natural mental infirmity and was completely deprived of the three - Unlawful = prohibited/excused by law [Houghton v R]
capacities. Match up:
Any of these intents W/ any of these harms
[D] may have a defence of self-defence under ss 271/2 as long as there were reasonable (a) To maim, disfigure or disable (e) Wounds, does GBH, transmits serious
grounds for using force. (b) To do GBH or transmit a serious disease disease
(c) To resist or prevent arrest or detention (f) Strikes or attempts to strike w/ projectile
(d) To resist or prevent public officer acting (g) Causes explosion
CASE SUMMARIES
in accordance w/ lawful authority (h) Sends explosive or dangerous or
Croft v Blair – accused encouraged dog to attack another – indirect assault by third - ‘Maim’ is inflicting injury which noxious thing,
party/agent interferes w/ a person’s capacity to fight (i) or such causes thing to be taken or
Fagan v Metropolitan Commissioner of Police – person stopped car on policeman’s foot [R v Woodward] (i.e. loss of a hand, but received
inadvertently, when pointed it out, didn’t move car not loss of an ear). (j) Puts or places corrosive fluid or
Hall v Fonceca – F argued punch in self-defence as H assaulted him – gesture + - “Disfigure” = an external injury which destructive or explosive substance in a
threatening words detracts from one’s personal appearance. place
Brady v Schatzel – [D] gave impression loading gun before threatening to use – apparent - “Disable” = create a permanent disability (k) Casts or throws such fluid or substance
present ability and not merely a temporary disability. upon any person
Secretary – violent relationship w/ history, victim threatened to kill her, went to sleep, [D] - Consent immaterial [Lergesner v Carroll].
shot him in self-defence - Each of these can be paired w/ any of
Kimmorley v Atherton – 2 boys kissing girl, no objection to consent by girl the harms (e to k).
Horan and Ferguson – school teacher touched student on bottom to move, tacit consent *if cannot charge under this section, charge under s320 GBH (no intent there)
in school
Lergesner v Carroll – police officers in a bar after work, ‘lets take this outside’, ‘no lets go - Pros has to prove intent behind the fault, which can be inferred through
here’, C hit L, argued consent, argue s 24 mistake of fact circumstances, and is the PURPOSE FOR ACTING [R v Reid].
Scatchard v R – painful headlock, no injury, sensation of pain not bodily harm; something - 1 Serious disease would, if left untreated, be of such a nature as to—
(a) cause or be likely to cause any loss of a distinct part or organ of the body; or
visible is required, was not visible in this case
(b) cause or be likely to cause serious disfigurement; or
 (c) endanger or be likely to endanger life, or to cause or be likely to cause permanent
injury to health; whether or not treatment is or could have been available.
DEFENCES
No provocation defence for injury-based offences (only works as a defence to assault or
murder)
[D] may have a defence of lack of will under s 23(1)(a) if [D] demonstrates his conduct
was unwilled or involuntary. [NOT FOR S 317 bc can’t have lack of will if intent element is
proven]
[D] may have a defence of accident as per s 23(1)(b) if it can be shown that [D] did not
intend or foresee the consequences and such consequences would not reasonable have
been foreseen by an ordinary person. [NOT FOR 328 OR 317 bc can’t have accident if
intent element is proven]
[D] may have a defence of defence of property as per s 267 if the property was a dwelling, or
ss 274/5/6/7/8 if it was other types of property (i.e. car, moveable, etc.) [NO DEATH/GBH]
[D] may have a defence of compulsion as per s 31 if the [D] is trying to save self from
serious harm which he/she is unable to otherwise escape, and the act is reasonably
proportionate to the harm/detriment threatened [NO DEATH/GBH/INTENT TO CAUSE]
[D] may have a defence of insanity as per s 27 if at the time [D] was suffering from a state
of mental disease or natural mental infirmity and was completely deprived of the three
capacities. This would assist to knock out intent element [POSITIVE])
[D]may have a defence of intoxication as per s 28/(3) [SPECIFIC INTENT OFFENCES ONLY]
[D] may argue NO gross criminal negligence for s 328(1).
CASE SUMMARIES
Jervis – [D] vampire, wanted to drink blood, stabbed and killed man, adopted meaning of
wound into Code, convicted for manslaughter, others of murder
Ping – torture by skipper, needed direct intention and knowledge intention was
insufficient; pros failed to show intent
R v Reid – [D} engaged in consensual sex w/ man, ensured not HIV+, victim became HIV+,
intent to transmit (direct intention)
SEXUAL ASSAULT
RAPE
349(1): Any person who rapes another person: max penalty—life imprisonment.
ELEMENTS s349(2)
1. (A) PERSON HAS CARNAL KNOWLEDGE W/ OR OF OTHER PERSON, W/O THE OTHER
PERSON’S CONSENT OR;
- Penetration of vulva, vagina or anus by the penis without consent
- s6(2) Carnal knowledge is complete on penetration to any extent. [Holland v R] and
includes sodomy (anal penetration).( does not include oral)
- 'Complete' is used as rape is coming to existence, but not in the sense that rape is
actually finished following initial penetration [R v Mayberry].
- Full penetration is not a requirement (merely inserting penis into vagina is
penetration)- if rubbing vagina = unlawful and indecent assault
- Need only be penetration to some extent and ejaculation isn’t req’d [R v Marsden].
2. (B) PERSON PENETRATES VULVA, VAGINA OR ANUS OF OTHER PERSON TO ANY EXTENT
W/ THING OR PART OF PERSON’S BODY THAT ISN’T PENIS, W/O OTHER PERSON’S
CONSENT OR;
- 347 penetrate doesn’t include penetrate for a proper medical, hygienic or law
enforcement purpose only
3. (C) PERSON PENETRATES THE MOUTH OF THE OTHER PERSON TO ANY EXTENT W/
THE PERSON’S PENIS, W/O THE OTHER PERSON’S CONSENT.
- Consent issue = see below
- For this section, a child under the age of 12 is incapable of giving consent 349(3)
-*intent is assumed as penetration never arises without intent*
SEXUAL ASSAULTS (S 352)
ELEMENTS (10 years simpliciter, life if aggravated) –
1. 352(1)(A)- UNLAWFULLY AND INDECENTLY ASSAULTS ANOTHER PERSON; OR [s 245]
- Limb 1: applying force (e.g. groping someone’s breast), directly/indirect, w/o consent
- Limb 2: attempting/threatening to apply force (e.g. exposing penis + invitation to
touch= indecent assault [R v Rolfe; R v Turner]- mere use of indecent expressions or
requests to have sexual relations WILL NOT amount to offence. Need bodily act/gest.
- Unlawful assault= s246- not justified, excused, or authorised by law
- Indecent- CL def- acting in a lewd or prurient manner, displaying moral turpitude, or
acting in shameful manner [R v McBride, adopted from Bryant]
o Obj test- matter of fact, jury decides would a reasonable person find it
indecent (from perspective of recipient, not assailant) [Drago]
2. 352(1)(B)- PROCURES ANOTHER PERSON, W/O THE PERSON’S CONSENT
a) TO COMMIT AN ACT OF GROSS INDECENCY OR B) WITNESS AN ACT OF GROSS
INDECENCY BY THE PERSON OR ANY OTHER PERSON (TELLING SOMEONE TO WATCH
YOU JERK IT)
- Procuring = intentionally causing, knowingly entice/recruit for an indecent purpose
(procurer need not be the person engaged in the acts of gross indecency) – slight
mental element here because to procure someone means there is a want to achieve
that result
- Gross indecency = indecency which is plain, evident, and obvious [Whitehouse] ex:
telling someone else to grab my penis/someone else’s penis, doesn’t involve you
touching
- ***VERY RARE TO CHARGE WITH, so stay away
AGGRAVATING CIRCUMSTANCES FOR SEXUAL ASSAULTS
- Indecent assault or act of gross indecency includes bringing into contact any part of
genitalia or anus of a person w/ any part of the mouth of a person (Max: 14 yrs)
- Offender is/pretends to be armed w/ a dangerous or offensive threat, or is in
company w/ any other person (Max: life)
- Penetrating offender’s vagina, vulva or anus to any extent w/ a thing or a part of
person’s body that isn’t a penis (Max: life)
- Act of gross indecency includes person who is procured by the offender penetrating
the vagina, vulva or anus of the person who is procured or another person to any
extent w/ a thing or a part of the body of the person who is procured that isn’t a penis.
CONSENT- special definition for rape + procuring (not indecent assault- court unsure to
follow this section for indecent assault)
348(1): Consent: freely and voluntarily given by a person w/ the cognitive capacity to give
the consent. [Francis; Millar]
- 349(3) For this section, a child < 12 yrs is incapable of giving consent. [R v Lang]
- Victim CANNOT be asleep, intellectually impaired (outcome of Mrzljak)?, drunk?
348(2): Person’s consent to an act IS NOT freely and voluntarily given if it’s obtained—
(a) by force; or
(b) by threat/intimidation; or [substantial and if particular complainant induced by
particular threat to consent – R v PS Shaw]
(c) by fear of bodily harm; or
(d) by exercise of authority; or
(e) by false and fraudulent representations about the nature or purpose of the act; or
[Williams; Michael v State of Western Australia; Papadimitropoulas]
(f) by a mistaken belief induced by the accused person that the accused person was the
person’s sexual partner.
- A victim who decides not to struggle (submits) should not be assumed to be
consenting [Wagenaar v R- submitted due to intimidation = no consent, opposite to
Holman v R and Case Stated by DPP (no 1 of 1993)]
- Consent once given can be w/drawn, and vice versa [Ibbs v R; Redgard]
- Consent can be implied [Horan v Ferguson]
- Consent is both subjective + objective. ASK:
o 1) Did the victim freely and voluntarily consent? Subj Test – No bc 348(2)
o If no, accused might raise s24 defence (mistake of fact), then ask…
o 2) If no consent was freely given, was it reasonable for THIS particular accused
(take into account personal characteristics- see below) to hold a belief in
consent? [Mrzljak]- Obj Test, but no longer from standard of a reasonable
person.
 If answer is No, then no consent, accused is guilty
DEFENCE for Rape +Sexual assault: 24(1): honest + reasonable + mistaken (positively
believe something else) + belief of consent
- Must point to positive (but mistaken) belief of consent, not a mere state of ignorance
[Coles v Goldsworthy]
- Personal characteristics can be taken into account in determining what would be
reasonable (e.g. intellectual impairment; psychiatric disorder; language barrier) [Mrzljak;
R v Dunrobin]. Intoxication CANNOT be taken into account [Aubertin v State of WA].
- Issue is what accused might reasonably believe, not what reasonable person would
have believed [R v Wilson].
- Even though an honest but unreasonable belief in consent isn’t a defence to rape, it’s a
defence to attempted rape (s 350) because any attempt to commit an offence requires
an intention to commit it (s 4). [A-G’s Ref No 1 of 1977]
- Intellectual impairment = no defence
CHAPTER 22 OFFENCES AGAINST MORALITY
**GO W/ RAPE FIRST, THEN W/ OTHER OFFENCES**
229: Accused’s knowledge of age immaterial, unless otherwise stated (for chap 22
offences) – doesn’t matter if accused did not know person was underage or believed that
the person was not under age (if defence wants to raise this mistake, prosecution just has
to show the child is of that particular age, game over)
- If child is < 12 yrs of age, the accused CANNOT argue mistaken knowledge of age under
ANY SECTION
16 is age of consent, under you cannot
Anal sex- age of consent is 18 (sodomy)
Indecent Acts
- Any person who willfully and without lawful excuse does any indecent act in a place
to which the public are permitted to have access, whether on payment of a charge
for admission or not is guilty of a misdemeanor – imprisonment for 2 years
- Ex: mooning, flashing, masturbating, or having sex in public
- Elements: willfully, without lawful excuse, indecent (defined by R v McBride), public
place
- (b) Doesn’t apply to person who does an indecent act under authority of adult ent.
Permit
215: Unlawful Carnal Knowledge (Stat Rape) with or of children under 16
Any person who has or attempts to have UCK with or of a child under the age of 16 is
guilty on an indictable offence. [PENILE-VAGINAL ONLY]- not sodomy
(5) If offence is alleged to have been committed in respect of a child ≥ 12 yrs,
DEFENCE: Accused person believed, on reasonable grounds, that child was ≥ 16 yrs.
[reverse legal burden]
210 (a)-(f): Indecent Treatment of Children under 16
(a) Unlawfully and indecently deals with a child under 16
Ex: Sexual offending that doesn’t amount to UCK- touching breasts
Indecent = definition as per Bryant and Drago
(5) If offence is alleged to have been committed in respect of a child ≥ 12 yrs,
DEFENCE: Accused person believed, on reasonable grounds, that child was ≥
16 yrs. [reverse legal burden]
(6) Deals w/ includes doing any act which, if done w/o consent, would constitute an
assault as defined in this Code. [MAKE OUT ELEMENTS OF ASSAULT]
Unlawfully = s246- not authorised, justified, or excused by law
222: Incest
Any person who (a) has carnal knowledge w/ or of the person’s offspring or other lineal
descendant, or sibling, parent, grandparent, uncle, aunt, nephew or niece; and knows
relationship exists [mens rea – fault]: Max – life.
(4) DEFENCE: Accused person was, at the time when the act/attempted act of carnal
knowledge happened, acting under the coercion of the other person. [reverse legal
burden: coercion]
(5) Includes half, adoptive or step relationship (de facto/foster/legal)
216: Abuse of Persons with an impairment of the mind
Any person who has or attempts to have unlawful carnal knowledge [OR] unlawfully +
indecently deals with a person [OR] unlawfully procures a person… w/ impairment of
mind
(4) DEFENCE: (a) Accused believed on reasonable grounds person didn’t have impairment
of mind [OR] (b) act/omission didn’t constitute sexual exploitation of person w/
impairment of mind [reverse legal burden]
(5) Carnal knowledge doesn’t include sodomy, and deals w/ includes doing any act that, if
done w/o consent, would constitute an assault. [MAKE OUT ELEMENTS OF ASSAULT]
- S1 Person w/ an impairment of the mind means a person w/ a disability that—
(a) is attributable to an intellectual, psychiatric, cognitive or neurological impairment
or a combination of these; and
(b) results in (i) a substantial reduction of the person’s capacity for communication,
social interaction or learning; and (ii) the person needing support.
208 Unlawful sodomy
(1) A person who does/attempts to do any of the following = 14 years:
(a) sodomises a person under 18 yrs;
(b) permits a male person under 18 yrs to sodomise him or her;
(c) sodomises a person w/ an impairment of the mind;
(d) permits a person w/ an impairment of the mind to sodomise him or her
(2) Life if:
(a) a child under 12 yrs; or
(b) a child, or a person w/ an impairment of the mind, who is to the knowledge of the
offender (i) his/her lineal descendant; or (ii) under his/her guardianship/care
(3) DEFENCE FOR 1(a)/(b) if alleged to have been committed in respect of a child who is 12
years or more: Accused person believed, on reasonable grounds, that the person in
respect of whom the offence was committed was 18 yrs or more. [reverse legal burden]
(4) DEFENCE FOR 1(c)/(d): (a) Accused believed on reasonable grounds person didn’t
have impairment of mind; [OR] (b) act didn’t constitute sexual exploitation w/ person
w/ impairment of mind [reverse legal burden]
229B: Maintaining a sexual relationship with a child
(1) Any adult who maintains an unlawful sexual relationship with a child under the
prescribed age commits a crime
(5) If the child was at least 12 years when the crime was alleged to have been
committed, it is a defence to prove the adult believed on reasonable grounds the child
was at least the prescribed aged [reverse legal burden]
CASE SUMMARIES
R v Rolfe – indecent assault where man exposes himself and walked towards woman
inviting her to touch his penis
R v Turner – mere use of indecent expression/request to have sexual intercourse wasn’t
sexual assault (mere words not enough to constitute assault unless w/ a gesture)
Bryant - accused giving complainant jewellery box containing animal testicles; strict
definition of word ‘indecent’ to lure/obscene
Drago – ran pen across child’s penis, claimed relaxation treatment, sexual character
determined objectively by how recipient will characterise, not assailant intention;
extended definition of ‘indecent’ to behaviour that was merely unbecoming or offensive
to common proprietary
Court – [D] smacked 12 yrs old customer on buttocks, jury would conclude hitting child on
butt for own fetish purposes, it is indecent, but for discipline, it would not be indecent
Francis – rape could be committed where man had sex w/ woman who by reasons of
sleep or drunkenness could not decide as to consent
Millar – can consent to rape when woman is drunk, but if completely
intoxicated/seriously intoxicated, cannot be taken as able to consent
R v Lang - < 16, prove lack of cognitive capacity but understanding/knowledge in position
to consent/resist, but < 12, lack consent, don’t have to prove; closer to 12, easier to prove
lack of cognitive capacity by prosecution
Williams – singing teacher induced 16 yr old to have sex w/ him by saying that sexual
intercourse would help w/ her breathing
R v PS Shaw – threat made to sister-in-law that she would be unable to go home and
continuously subjected to sexual abuse, threat cancelled consent
Michael v State of WA – D misrepresented that he was a police officer and on that basis
secured discounted and free sex on 2 different occasions from prostitutes; consent not
freely/voluntarily given b/c threat/intimidation
Papadimitropoulas – misrepresentation to non-English female lodging notice of marriage,
consented to sex, no rape b/c fraud didn’t go to nature of act (tricking her to think they
were married was something different)
Wagenaar v R – uncle repeatedly had intercourse w/ niece, said consent but was due to
intimidation
Holman v R - consent could be reluctant, hesitant, grudging, tearful but if consciously
committed could be consent (outdated view)
Case Stated by DPP (no 1 of 1993) – married couple, she was lesbian, didn’t want to sleep
w/ husband, forced her – no rape b/w married couple (outdated)
Ibbs v R – initially consented then w/drew, accused continued, rape b/c consent w/draw,
doesn’t matter for how long after
Redgard – 'no' followed by a 'yes', 'yes' can cancel out original 'no'; consent taken to
confirm whole transaction
Mrzljak – [D] low IQ, impaired cognitive capacity same as victim, could not understand
‘no’ – ask whether accused w/ limitations could have reasonably believed victim
consented; intellectual impairment, psychological problems, language incapabilities
R v Dunrobin – [D] w/ mental illness, raped woman, thought she consented (honest /
reasonable mistaken belief) – schiziphrenia, decision-making capacity impaired
Aubertin v State of WA – convected of rape and indecent assault, intoxicated, but not take
into consideration; only characteristics that [D] had no control over considered
PROPERTY OFFENCES
STEALING
398: Any person who steals anything capable of being stolen is guilty of a crime. 5 yrs.
- Stealing from a person, natural disaster, dead person, etc. has max of 10 yrs
- Stealing a car has a max of 14 yrs.
Stealing- 391(1): A person who fraudulently(dishonestly) takes or converts anything
capable of being stolen, or fraudulently converts to the person’s own use or to the use of
any other person
ELEMENTS (stealing can be any 1 of these elements)
1. TAKING OR CONVERTING PROPERTY
- Act of stealing is complete upon movement or physical dealing (asportation)
- 391(6): For stealing person needs to move the thing – minimum movement is sufficient,
but intention to steal is insufficient [Wallis v Lane; R v Taylor; R v Angus]
- Taking: physical interference w/ the thing stole, completed when possession of the
property is gained
- Converting: property given rather than taken, but then wrongfully disposed of;
dealing in a manner inconsistent w/ the owner's right to the thing [Ilich v R] ex: a
bailee who is given property, but sells or disposes of it OR employee getting $ for
cashier, but keeping it and using it elsewhere
- Mere failure/refusal to return is not conversion [Angus]- rent video game, keep it
* Electronic funds fall outside of stealing b/c lack of touch and lack of physical dealing –
fraud is appropriate charge
Transfer of Ownership and Mistake
- Fundamental mistake = when intended to transfer possession of property and not
ownership (i.e. no intention to pass ownership originally) so the person who received
it may be liable for actions subsequent to the giving taking place. If not = ownership
will have passed and new owner is free to deal w/ that property as they like.
- Fundamental mistakes: [Illich v R]
1. Mistake as to the identity of the transferee [Middleton]- teller gave M more $ bc
thought he was someone else, fund mistake, negative gift of $, ownership not
passed, M had to return of face consequences
2. Mistake as to the identity of the thing delivered(possession or ownership) [Ashwell]
3. Mistake as to the quantity of the thing delivered [Russell v Smith]
o Money exception: When money passes into currency of another, through a
bona fide transaction (intentionally handed over $, but it was a mistake not
known of), ownership goes w/ possession because money is a medium of
exchange (interchangeable) [Mujunen v R] = no fundamental mistake
[Mujunen v R]- Distinction between giving and taking: Facts: M deposited cheque
knowing it was going to bounce, then quickly made 3 withdrawals (1 with teller, 2 with
ATM). Held- withdrawals at ATM were a TAKING, put in the numbers, took the cash
and he could be charged with stealing bc he had a fraudulent intent knowing he didn’t
have enough $ in account to support it. Withdrawals at teller were a GIVING, NOT a
fundamental mistake bc $ exception, so ownership passed, so was not stealing.
Fraud instead.
Exceptions to $ Exception – ownership transfers with money, UNLESS
- 393: Money received w/ a direction that it be applied to any purpose or paid to any
person specified in the direction. Remains property of the person who provided it until
the direction is complied with.
- 394: Property received for sale or disposition w/ requirement to pay or account for
the proceeds, the property belongs to the other person who they are selling for (ex:
real estate agent, have $ for particular purpose to sell, so it’s just possession)
- 395: Money received on behalf of another person is deemed to be property of
another
2. FRAUDULENT INTENTION
S391(2) Fraudulent intent includes:
(a) permanently deprive owner (permanent) - presumption of intent to permanently
deprive in cases of fuel drive off s391(2A)
(b) Permanently deprive any person who has any special property in the thing
(permanent) so someone gives you money and you spend it on something else
(c) use the thing as a pledge or security;- use as security for a short-term loan, must
involve 3rd party- intent to take property to pawn shop and use as collateral to
obtain a loan
(d) part w/ it on a condition as to its return which the person taking or converting it
may be unable to perform; ex: go and gamble the money
(e) deal w/ it in such a manner that it cannot be returned in same condition[Bailey]
(f) Intent to use someone else’s money even if intend to repay (intent to borrow =
fraud)
Other Matters
- Knowledge intention rather than direct intention – if they take it for themselves, know
other person will be deprived of the thing [R v Woollin; Peters v R]
- No need to rely on s 24 mistake if shown in positive elements
3. 390: PROPERTY IS CAPABLE OF BEING STOLEN: ((a) things that are moveable or (b)
capable of being moveable (cannot steal real or intangible property- buildings/land)
REBUT: Stealing by Finding- 391(5) NOT taking or conversion if owner unknown and
person believes on reasonable grounds owner cannot be discovered (excludes
abandoned property)
- Evidentiary burden on accused person, but once discharged, shifts to Crown to
disprove. Crown can do that by showing [D] did know owner of object or [D] did have
reasonable grounds to find owner. Ex: If ID is found in a wallet in a cab
- Finder: You can be charged with stealing by finding if a: you know who the owner is or
b: you can easily discover who the owner is
FRAUD
S408C: Dishonest dealings w/ property (e.g. using someone else's property for personal
financial advantage, obtaining ownership of property by false pretences, financial
benefits or advantages w/ credit, etc.)-
- ELECTRONIC = fraud bc $ being electronically transferred to bank is intangible, not
physically dealt with
- fraud can involve both real and intangible property (3)
MENTAL ELEMENT
- 408C(3)(b): DISHONEST even though-- (i) s/he willing to pay for property; or (ii) s/he
intends to afterwards restore property or to make restitution or to afterwards fulfil
obligations or to make good any detriment; or (iii) an owner or other person
consents to doing any act/making any omission; or (iv) mistake is made by another
person
o OBJ TEST: Would the ordinary person believe that the act was dishonest?  no
need to rely on s 24 mistake (Mathews v R)
o Step 1) Dishonest (common law) test: Identify the knowledge, belief or intent
which is said to render the act dishonest and instruct the jury to decide whether
the accused had that knowledge, belief or intent, and whether, on that account,
the act was dishonest by the standards of decent people [Peters v R]
o To be judged objectively – reasonable person thought it was dishonest, regardless
of whether the accused thought it was
 408(c)1: A person who dishonestly— (should be able to pick a few out of these for
fraud)
(a) applies to his/her own use or to the use of any person— (personal financial adv)
(i) property belonging to another; or
(ii) property belonging to the person, or which is in the person’s possession, either
solely or jointly w/ another person, subject to a trust, direction or condition or
on account of any other person; or
(b) obtains property from any person; or (MOST COMMON)
(c) induces any person to deliver property to any person; or (MOST COMMON) –false
pretences and promises with either possession/ownership transferred
(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) E not f: makes off, knowing that payment on the spot is req’d or expected for any
property lawfully supplied or returned or for any service lawfully provided, w/o
having paid and w/ intent to avoid payment;
commits the crime of fraud.
(1) SIMPLICITER: 5 years; AGGRAVATED: 12 years (i.e. director/member of corp;
employee; received property through trust/direction/condition; > $30,000)
- DEFENCE: Person did not know owner or could not reasonably identify the true owner
through reasonable steps
ROBBERY
(409)robbery:: Steals + uses or threatens to use actual violence to any person or property
during or immediately before/after the stealing in order to obtain the thing stolen or
prevent or overcome resistance to its being stolen, must be intentional
- Go through elements of stealing in s391(1)
- Intention to permanently deprive person of the property
- Must be a causal link between the violence and the time (ex: if you beat someone
up, then see their wallet on the floor and decide to take it, charge assault +
stealing, not robbery)
411 Punishment of robbery
(1) Liable to imprisonment for 14 yrs.
(2) If pretends/is armed or in company or wounds or uses any personal violence, liable for
life
- Mere presence of people at the scene w/ the intention of participating if req’d is
sufficient to be in company even if victim is unaware that they are there. If offender
makes presence known and the victim is confronted, this amounts to robbery in
company even if some people didn't intend to participate.
412 Attempted Robbery (fail to secure property)
(1) Assaults (s245) w/ intent to steal (fraud intent- perm deprive)+ immediately
before/after assault uses/threatens violence to obtain thing intended to be stolen or
overcome resistance is guilty and liable to 7 yrs imprisonment
(2) If pretends/is armed or in company, liable to 14 yrs imprisonment
(3) If armed, and immediately before/after assault wounds/personal violence, liable for life,
doesn’t have to be the person being robbed.
BURGLARY
418 Definitions
(1) Breaking:Person who breaks any part (external/internal) of dwelling/premises, opens
by unlocking, pulling, pushing, lifting, ruse (trick- cop) etc., any door, window, shutter,
cellar, flap, or other thing, intended to close/cover an opening in a dwelling/premises,
or an opening giving passage is said to break the dwelling/premises (aggravating
factor, don’t need to cause damage)
(2) Enter as soon as any part of body or instrument used is w/in the dwelling/premises.
(3) Person who obtains entrance into dwelling/premises by threat, or by collusion w/ any
person in dwelling/premises, or enters any chimney/aperture of dwelling/premises
permanently left open but not for ordinary entry use, is deemed to have broken and
entered the dwelling/premises.
(a) Premises includes: (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.
1 Dwelling: building or structure which is used as a residence, and a material which might
be on time to time inhabited (ex: hotel room)
419 Burglary (Dwelling)
(1) Any person who enters or is in dwelling + intent to commit indictable offence liable for
14 yrs imprisonment (HARD TO PROVE INTENT)
(2) Enters by means of any break, liable for life (BREAK AND ENTER)
(3) If offence committed at night; or offender uses/threatens violence or pretends/is
armed or in company or damages/threatens property, liable for imprisonment for life
is succefully enter and steal it can be life[AGGRAVATED]
(4) Any person who enters or is in dwelling + commits indictable offence, imprisonment
for life – EASIEST TO CHARGE WITH, NO INTENT REQUIRED
421 Entering or being in premises and committing indictable offences (if you don’t live
there, it’s a premise such as a garden shed,shops,schools,library,offices)
(1) Enters premises (or in premise) + intent to commit an indictable offence liable 10 yrs
imprisonment
(2) Enters premises (or in) + commits indictable offence liable 14 yrs imprisonment
(3) Enters by means of any break + commits indictable offence, imprisonment for life
(BREAK AND ENTER)
VEHICLE RELATED OFFENCES
427 Unlawful entry of vehicle for committing indictable offence
(1) Unlawfully enters vehicle + intent (fraudulent intent- perm deprive) to commit
indictable offence, 10 yrs imprisonment
(2) If offence committed at night (9pm-6am); or offender uses/threatens violence,
is/pretends to be armed, is in company or damages/threatens property, 14 yrs
imprisonment [AGGRAVATED]
1 vehicle includes (a) a motor vehicle, train, aircraft, or vessel; or (b) anything else
used or to be used to GBH
ry persons or goods from place to place.
408A Unlawful use or possession of motor vehicles, aircraft or vessels
(1) Unlawfully uses MV w/o consent OR w/ intent to deprive owner temporarily or
permanently: 7yrs (ex: joyride)
(1A) Uses/intends MV to facilitate commission of an indictable offence: 10 yrs.
(1B) Wilfully or w/ intention to remove parts of MV to alter identity: 12 yrs.
(1C) DEFENCE: s24- had lawful consent of owner of the MV to its use/possession.
- Vessel means every kind of vessel designed for use on or in water, not propelled
exclusively by oars.
1 motor vehicle: any machine or apparatus designed for propulsion wholly or partly by
gas, motor spirit, oil, electricity, steam or other mechanical power, and also includes a
motor cycle, or a caravan, caravan trailer or other trailer designed to be attached to a
motor vehicle.
RECEIVING STOLEN PROPERTY
433 Receiving tainted property
(1) Any person who receives tainted property, and has reason to believe it’s tainted
property, commits a crime. Max penalty—
(a) If property obtained by way of an act constituting a crime—14 yrs; or
(b) If property is firearm or ammunition—14 yrs; or
(c) If offender received property while acting as a pawnbroker or dealer in second hand
goods, under a licence or otherwise—14 yrs; or otherwise 7 yrs.
(2) For purpose of proving the receiving legitly, it is sufficient to show that the accused
person has, either alone or jointly w/ some other person, had the thing in his/her
possession, or has aided in concealing it or disposing of it.
Fault Element- Reason to believe its tainted/Knowledge prop obtained by means of an
indictable offence = OBJ Test (ex: incredible deals)- Would a reasonable person believe
the property was tainted? (may be a discussion with 2 diff sides if not clear- nice gesture)
- Onus on receiver/accused of property to ensure that it wasn’t unlawfully obtained- no
willful blindness defence- [Pereira]
432(1) Tainted property- (a) a thing that has been obtained by way of an act constituting
an indictable offence or, (b) converting from or exchange with property obtained from
an indictable offence
432(2) –property stops being tainted after 3rd party acquires a lawful title to it without
notice
ARSON, DAMAGE AND DESTRUCTION
461 Arson: wilfully and unlawfully setting fire to buildings, structures, vessels, vehicles,
etc.
462: Endangering Particular Property by Fire- wilfully and unlawfully attempting setting
fire to anything situated so that a thing in s 461 is likely to catch fire: 14 yrs (ex: setting
fire to a bin next to curtains which burns house down)
469 Wilful damage: willfully and unlawfully destroying or damaging any property
(including setting fire to other things) – 5 yrs max simpliciter, up to life for aggravated
- Wilfully: intentionally/deliberately or recklessly (i.e. aware of the risk of damage) [R v
Lockwood – kicked car door in a road rage incident, was aware damage to the door
was a likely result and recklessly kicked it 5 years , ex: kurd]
- Unlawful s458: act which causes injury to the property of another, and which is done
w/o the owner’s consent, is unlawful unless it’s authorised or justified or excused by
law, or with intent to defraud if own property (insurance frauds s459(1)-(2))
- standard burden applies (onus on Pros to prove elements BRD)
DEFENCES
[D] may have a defence of emergency under s 25 (i.e. needed a vehicle or something
from someone’s house in an emergency).
[D] may have a defence of compulsion as per s 31 if the [D] is trying to save self from
serious harm which he/she is unable to otherwise escape, and the act is reasonably
proportionate to the harm/detriment threatened.
[D] may not be criminally responsible in the exercise of an honest claim of right and w/o
intention to defraud as per s 22(2).
[D] may have a defence of lack of will under s 23(1)(a) if [D] demonstrates his conduct
was unwilled or involuntary.
[D] may have a defence of mistake of fact as per s 24 if [D] can show a honest, reasonable
but mistaken belief that the victim consented.
[D] will not have a defence of ignorance of the law as per s 22(1).
[D] may have a defence of defence of property w/ reference to ss 274 –278. However
such sections would not apply if GBH resulted. Section 23(1)(b) could then be argued.
CASE SUMMARIES
Ilich v R – vet gave I envelope of money w/o counting, > $5k, no stealing b/c voluntarily
handed over money; no theft b/c no obligation to return money; no mistake to identity,
only mistake to quantity
Wallis v Lane – [D] delivery man removed bicycle parts and put them elsewhere, stealing
b/c any movement w/ intent to fraud sufficient
R v Taylor – partial movement from pocket of wallet was sufficient for offence of stealing
and not attempted stealing
R v Angus – [D] borrowed the game, left it on the shelf and failed to return it - mere
failure to return isn’t sufficient for a charge of stealing (need intent and movement)
Middleton – bank teller gave M more money than was in account b/c thought he was
different person; fundamental mistake, possession passed, not ownership
Ashwell – A asked for loan but handed sovereign by mistake – mistake as to thing;
cancelled intention, only possession passed b/c fundamental mistake
Russell v Smith – 8 stacks pigmeal delivered in excess, fundamental mistake, ownership
not transferred, just possession
Mujunen v R – M deposited forged cheque into account, w/drew twice at ATM, once at
human teller; teller voluntarily handed over money to [D]  not stealing
Bailey – accused taking car to pawn it, even w/ intent to regaining property, still has
fraudulent intent , because he ruined tires
Peters v R – solicitor conspired w/ client to fraud gov’t to conceal taxes; dishonesty to be
decided by standards of ordinary, decent people
R v Lockwood – intentionally and recklessly kicked a car door
 QLD DRUG OFFENCES
Schedule 1 (higher sentence than sch 2) Schedule 2
- Amphetamine, methylamphetamine, - Cannabis, methadone, morphine,
MDMA, PMA, heroin, lysergide, steroids, etc.
phencyclidine and cocaine. - Trafficking: 20 yrs
- Trafficking: 25 yrs - Supplying: 15 yrs
- Supplying: 20 yrs
- Production in excess: 25 yrs
- Possession in excess: 25 yrs
**Drugs Misuse Act 1986 (QLD)
Dangerous Drug (s4 DMA)- drugs specified in Sch1 and Sch 2
POSSESSION- standard burden applies
9 QLD DMA: A person who unlawfully has possession of a dangerous drug is guilty of a
crime.
Physical possession: if you have drugs on you(holding it)
Constructive possession: even if someone else has it but you have control of drugs
s. 4 of DMA Unlawfully= without authorisation, justification or excuse by law
1) s1 Possession (QLD CC): 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.
- s 116 of DMA says CC is to be read and construed w/ DMA
- Possession = exercise of control over a thing
o Two types of possession: physical or constructive possession (thing is physically
separate but still have control of it-ex: in your office, but must have exclusive
control- if public can access = no control(LAI) [Buck v R; Davies v State of WA]
- For possession w/o actual physical custody, there must be an intention to
exercise control over it [State of WA v R]- HOW DO YOU PROVE INTENTION
TO EXERCISE CONTROL?
129 Evidentiary provisions (DMA) – EXCEPTION to presumption of possession
(c) [PRESUMPTION] Proof that a dangerous drug was in/on a place of which that
person occupied/controlled/managed is conclusive evidence that drug was then in the
person's possession unless person shows on balance of probabilities he/she neither
knew nor had reason to suspect that the drug was in or on that place (lack of
knowledge of existence); (extends to vehicles)-only owning property isn’t enough
(d) DEFENCE: s 24 no defence unless person shows an honest and reasonable belief in
the existence of any state of things material to the charge; and [REVERSE BURDEN] –
onus shifts to D to prove on BofP (make sure you clean after hosting a party)
 Defence has to prove, if presumption is made, that they don’t have any personal
involvement of the place where it’s found for presumption to exist.
 If presumption made, D must show they don’t have day to day contact with the
place- not necessarily the owner who is at fault, the tenant would be the
possessor
 [Smythe]- couldn't be held to be possessor of cannabis because she rarely visited
despite being the registered owner- had no control over place
 [Thow v Campbell]- owner must be making use of the place with sufficient de
facto control, so accused will not be an occupier if just their belongings were
there. If you have the right to exclude, then you fall under the presumption bc u
have the right to the place.
2) MENTAL ELEMENT – KNOWLEDGE
- Possession includes knowledge of the existence of the thing and that it was in their
custody/control. Pros just have to prove actual knowledge of possession of thing, but
doesn’t have to prove that accused had knowledge of the nature of the substance
(that it was actually a drug, bc every accused would say they didn’t know what it was)
[Clare v R]. Accused had to prove under s24 mistake of fact: honest and reasonable
belief to get out of it
o Excludes knowledge of the character of the thing,crown has to prove knwldge. [Tabe]
SMALL QUANTITIES AND ADMIXTURES
- Concept excludes trace amounts: common sense and reality test [Williams v R]
o A mere trace that cannot be seen with naked eye or measured
cannot amount to possession charge
- Concept includes admixtures (s 4 DMA: dangerous drug includes a thing contained in a
natural substance or in any preparation, solution or admixture) [Paul v Collins Jr]
o If drugs in cookie, then whole cookie would be measured as drug
Overall: P needs to prove actual knowledge of the accused of the existence of the thing,
control, and have more than a trace of it (no matter how small when admixture though)
SUPPLYING AND TRAFFICKING
SUPPLYING
6(1) QLD DMA: A person who unlawfully supplies a dangerous drug to another, whether
or not such other person is in Queensland, is guilty of a crime
- 4 Supply means to give, distribute, sell, administer, transport or supply; or offering to do
any act specified in subpara (i); or doing or offering to do any act preparatory to, in
furtherance of, or for the purpose of, any act specified in subpara (i). * includes offering
to supply; can have unlawful supply if not receiving any,ex passing a joint $
- Max penalty 15 to 25 yrs depending on type of drug
- Possession in sufficient quantities and circumstances can give rise to interference of
supply rather than mere possession
- DEFENCE to charge of supply- s24- Mistake of fact- honestly and reasonably believed
that he was selling very highly priced powder- but unlikely to fly when you think of
what's involved with supply, where it takes place, etc - very hard to prove reasonable
and honestly –s129(d) accused must prove it was a mistake
6(2) An offence is one of aggravated supply if the offender is an adult and the person to
whom the thing is supplied (increases to life)
(a) is a minor; or
(b) is an intellectually impaired person; or
(c) is w/in an educational institution; or
(d) is w/in a correctional facility; or
(e) doesn’t know he/she is being supplied w/ the thing.
TRAFFICKING- furtherance of supply
5(1) A person who carries on the business of unlawfully trafficking in a dangerous drug is
guilty of a crime.
- Person can be convicted of trafficking on the back of proving just one actual supply, so
long as there is additional evidence to support conclusion that person is carrying on
business of supply [Quaile]- must have proof of series of transactions/reg meetings
- Max 25 yrs for sch 1 drug and max 20 yrs for sch 2 drug
- Trafficking (no DMA def) = supply with an added commercial element
DEFENCES
MISTAKE (negating element of possession- NOT a defence)
- only relevant to possession (not supply or trafficking)
- In relation to existence of a substance: ignorance that substance is in his/her
possession, or is in a location over which she/he has NO control, or is being given to
another person
[Tabe/Clare] - IF [D] can show they did not have any knowledge of existence of substance,
whether it was a mistake or ignorance, or reasonable or unreasonable, then they can
escape liability bc onus is on Pros to prove BRD that [D] knew they had that thing in their
possession, knew of its existence (this is provided the onus hasn’t switched to an [D] if
they are an occupier who then has to rebut the presumption in 129(c) through a s24
defence that they honestly + reasonably believed they didn’t have the drug/lack of
knowledge of existence). So if [D] can put something in front of court (lift evidentiary
burden) and say “I had no idea it was there, I was ignorant to its existence”, and jury
agrees, then the elements of possession are not made out fully. This is just negativing an
element of possession, not under s24 defence.
- Mistake about character: know existence of the thing, but ignorance about what it is
(very difficult to prove)
º Mistake must be reasonable [Clare]
º Burden of proof reversed (129(1)(d))
º Need positive mistake
- is excluded unless that person shows an honest and reasonable belief in the
existence of any state of things material to the charge
[D] does not have a defence of ignorance of law (‘I didn’t know it was illegal’), UNLESS
statutory instrument not published (s22 of CC)
[D] may have a defence of compulsion as per s 31 if the [D] is trying to save self from
serious harm which he/she is unable to otherwise escape, and the act is reasonably
proportionate to the harm/detriment threatened.
[D] may be able to show that he/she w/drew from secondary participation.
CASE SUMMARIES
Buck v R – B organized to buy drugs, put in suitcase in possession by C; constructive
possession rejected b/c in someone else’s body; convicted of important
Davies v State of WA – parents allowed son to store cannabis in ceiling; all parties in
possession (joint)
Tabe v R – package cam in mail, Briggs went to collect, charged jointly for aiding,
counselling, procuring; inference of knowledge may be drawn from surrounding
circumstances
State of WA v R – person must know thing is or is likely to be a drug
Clare v R – possession of heroin but though perfume-base, knowledge of
substance/existence, Crown must establish knowledge of existence not knowledge of
dangerous drug (character); [D] to argue s 24 reverse burden
Smythe – elderly lady owned rural property rental, visited rarely, cannabis plantation, no
exercise of control over place  s 129(1)(c) doesn’t apply
Thow v Campbell – owner of house banned accused from living there, accused returned
to get possession, didn’t fall in s 129(1)(c) b/c occupier requires control
Jenvey v Cook – partner accused of actual possession, C presumption had no application
even though shared bedroom b/c partner already convicted – only to fill gaps where
someone note accused of having possession)
Williams v R – fragments of leafy material in pockets, possession not intended to include
small quantities not measurable by naked eye, no exercise of control
Paul v Collins Jr – distinguishable from Williams b/c not admixture; need only to show
some amount of drug present, no matter how small when admixture
Quaile – single heroin sale but along w/ other actions (i.e. heroin business in 1986),
supported charge of trafficking; evidence of regular mtgs, system of business
SECONDARY PARTIES
7 PRINCIPAL OFFENDERS (NOT AN OFFENCE, BUT THIS ALLOWS TO TO PROSECTURE
SECONDARY PARTIES) (IN CRIMINAL CODE CC)
(1) When offence is committed, each of following deemed to have taken part in
committing offence and to be guilty, and may be charged w/ actually committing it
(a) every person who actually does the act or makes the omission which constitutes
offence; - principals and joint-principals
(b) every person who does or omits to do any act for the purpose of enabling or
aiding another person to commit the offence; [Beck] (focuses on purpose)
- Don’t need to actually aid (e.g. supply gun in principal robbery, but principal
didn’t use gun)
- All omissions are under this section (example leaving door open, failing job)
- Extended by s 8
- Mental element is expressed by words (the purpose)
- Knowingly doing anything to assist in the crime (e.g. supplying gun = act, driver;
leaving security door unlocked = omission)
(c) every person who aids another person in committing the offence;(focus on facts)
- Actually aiding – mental element is implied (knowingly aid to assist)
- Doesn’t require purpose though (e.g. supply gun for making money, but not for
principal conducting robbery)
- Extended by s 8
(d) any person who counsels or procures(Ex: encouragement before act) any other
person to commit the offence.
- Extended by s 9
* See ss 7(2)-(4)
- Principal = accused; Joint principal = 2 people committing an offence equally
(Jackson & Hodgetts); Secondary parties = accessories to crime (no fault elements
committed)- A: person who opens window B: person who climbs in – equally liable
for offence
- A conviction on basis of secondary liability leaves that person open to punishment
as they same extent as the principal offender. Creates liability for any role
involved.
- Ex: If have 2 men who commit armed robbery, and one holds gun, and 1 gets
money- they are joint. If they go outside and have a driver, who wasn’t actually
involved in the commission of the offence, he aided after the offence, he would be
liable under party provisions to exactly the same offence and penalty as the 2 who
went in the bank
S7 (1) b/c AIDING AND PASSIVE PRESENCE v ACTIVE/CALCULATED
- No liability for being a passive spectator of an offence (unless breach of a duty of care)
[Coney] (i.e. walking by)
- Standing and watching, making presence known, encouraging (by laughing) ; Randall and
Farmer v R, support at scene of offence, aiding, etc. is active presence [Beck v R (wife
watched husband rape and kill girl)].
o If a person is voluntarily and purposely present witnessing a crime and offers no
opposition to it, it justifies a finding of willful encouragement or aiding [Beck]
(Deliberate/active/calculated presence can provide positive encouragement and
support a principal offender, so can be liable to offence as an aider)
S7 (1) b/c MENTAL ELEMENT FOR AIDING- KNOWINGLY AIDED/ASSISTED
- Whether a person has done an act for the purpose of aiding or whether a person
actually aided is a Subjective Test – mental intent expressed by words in 7(1)(b)
(purpose) and mental element implied (knowingly aided) in 7(1)(c) – (d) [Beck v R]
- Have to prove this mental element. Why? Avoids criminal responsibility to unwilling
aiders (ex: taxi driver that didn’t even know what was even going on, so has to be
done knowingly with that intent)
- All that is required is knowledge of an intent to commit a crime of the type
committed (the mental element). Once it is proven that the accused knowingly aided
the Principal Offender, can be convicted of aiding without knowing precise details.
[Ancuta v R]
- Knowledge that some offence was to be committed, but not knowing specific type of
offence = liable for commission of any of alternatives w/in contemplation [DPP
(Northern Ireland) v Maxwell opposite w/ Kirby v R]
- Level of knowledge? Would not be enough if accused knew about possibility, has have
known for sure Witsen
S7(1)(d)- COUNSELLING AND PROCURING( will be on exam)
- Counselling: encouraging (beforehand) by word or deed
- Procuring: causing and/or commissioning; intentionally causing the act or omission to
happen as he/she has set out (to achieve a particular result)
o E.g. person who induces commission of offence by payments, threat, trickery (ex:
hiring a hitman)
o No mental element set in (d), but procuring is implied intent
- Must be done knowingly (must show purpose behind the actions- there was
knowledge of an intent to commit a crime), but accused still liable for any final
outcome which is a probable consequence of the act counselled
o When 2 or more people form to commit an offence, liability determined by ref to s 7
o When 2 or more people form commit an unlawful purpose and one party goes
beyond plan and commits serious/extra/different offence, then question of whether
other parties should also be convicted for those offence (s 8 + 9)
o Scope of liability is extended by s8 and s9- require contemplation of what
was in the mind of the accused/parties and whether or not they should be
crim responsible for an offence which wasn’t necessarily planned at first but
may fall within scope of potential outcomes (ex: pay a hitman to do GBH,
and death occurs, you will be liable,)
8 OFFENCES COMMITTED IN PROSECUTION OF COMMON PURPOSE
ELEMENTS
1. When 2 or more persons form a common intention to prosecute an unlawful purpose
in conjunction w/ one another; and [subjective – external factors taken into account]
2. An offence was committed in pros of the unlawful purpose; and
3. The offence committed was a probable consequence of the prosecution of the such
unlawful purpose…each of them is deemed to have committed the offence [objective]
[Stuart v R; Hind and Harwood v R; R v Keenan] keenan: knew one party armed with
baseball bat, but knew no one had a gun, so convicted of GBH not murder
 Must be probable in the sense that it could well happen – not on balance of
probabilities, but more than real/substantial probability [Darkan].
- Extends scope of ss 7(1)(b) and (c) [R v Keenan]
- Ex: if 2 robbers talked about committing an armed robbery, but 1 person kills a victim
instead in prosecution of the unlawful purpose, BOTH are guilty, if it is a probable
consequence that someone could be killed (liability extends to both)
9 EXTENDED COUNCELLING RULE (MODE OF EXECUTION IMMATERIAL)
ELEMENTS
1. ‘A’ counsels the perpetrator to commit an offence; and
2. An offence be committed by the perpetrator after such counsel; and
3. The facts which constituted the offence actually committed were a probable
consequence of the carrying out of the counsel [objective test].
o Must be probable in the sense that it could well happen – not on balance of
probabilities, but more than real/substantial probability [Darkan].
o Here, objectively, it is reasonable that the facts which constituted the actual
offence committed could have resulted from the carrying out of the counsel
o 9(2)- In either case the person who gave the counsel is deemed to have counselled
the other person to commit the offence actually committed by the other person.
- Extends scope of ss 7(1)(d) – accused can incur liability if extra offence committed or
offence committed was different to what counsellor counselled provided it was a
probable consequence of what was actually counseled
PRINCIPAL AND SECONDARY PARTY
W/DRAWAL FROM SECONDARY PARTICIPATION
- W/drawal must be evidenced by action or countermanding that is capable of being
effective and it must be accompanied by such action as he/she can reasonably take to
undo the effect of his/her previous encouragement or participation [R v Menniti]- M
still failed this test (reasonable efforts to withdraw) bc he did so much to set it up and
only tried to withdraw at the very last last minute.
- ‘Common purpose’ liability (s8)
o There can be withdrawal from the common purpose before the offence is
committed
- Aiding, counselling, procuring (s7)
o The contribution can be undone completely , R v Mennitti
o Accused must take such actions as he reasonable could to undo the effect of his
previous participation
DEFENCES
[D] may have a defence of compulsion as per s 31 if the [D] is trying to save self from
serious harm which he/she is unable to otherwise escape, and the act is reasonably
proportionate to the harm/detriment threatened.
CASE SUMMARIES
Coney – spectators of fight convicted as aiders and abettors; mere passive presence at
scene not aiding unless/until active presence
Beck v R – abducted, raped, killed girl; B helped w/ plan to rape, but claimed no
knowledge intent to kill; convicted of murder; aiding extends to psychological support at
scene, not just material aid
Randall and Farmer v R – owner of nightclub raped patron in office while others watched;
encouraged it by laughing, active/deliberate presence
Witsen – 2 guys assaulted victim while W held him down; needed actual knowledge that
intent of guys was to kill or GBH; conviction upheld
Ancuta v R – compliance plates to be affixed to stolen cars; knowledge to commit crime
sufficient even though didn’t know which cars would be used – unlawful possession
DPP (Northern Ireland) v Maxwell – part of same organization, knew some offence to be
committed, not particular, liable for commission of any alternatives w/in contemplation
Kirby v R – K getaway man, defence was that he was driving and gave brother ride;
member of local gang; conviction upheld b/c w/in contemplation
Stuart v R – S arranged F to start fire to pretend threat to extort money, spread and killed
people; issue not whether accused aware of murder but was it foreseeable (objective)
Hind and Harwood v R - 2 guys who went to depot to perform robberies at cafeteria, one
guy refused to motive and Hind shot him in the chest; common purpose robbery and
probable consequence  Hardwood convicted
R v Keenan – revenge plot, C shot in spine; common purpose to inflict serious physical
harm, irrelevant if harm done by gun or bat if purpose met; guilty of unlawfully doing
GBH w/ intent
Darkan – men hired to harm husband, assaulted, injured, death; convicted of murder;
probable distinct from possible
R v Menniti – mtg b/w dealer and the police, undercover; tried back out the end of the
mtg, 1). Effective neutralisation, and 2). Reasonable efforts; [D]’s conduct was to avoid
liability; timely acts to counterbalance earlier actsr
ATTEMPTS
When there is no specific attempt offence (like s306) then need to use s535 + s4
535 Attempts to commit indictable offences (but not simple)
(1) Attempts to commit crime = commits a crime
(2) Attempts to commit misdemeanour = commits a misdemeanour
Then have to look at s4 for how to create liability.
536 Punishment of attempts to commit indictable offences
(1) Attempts to commit an indictable offence punishable by mandatory life is liable, if
no other punishment is provided, to life imprisonment. (Max life)
(2) Attempts to commit an indictable offence punishable by life imprisonment but not
mandatory life imprisonment is liable, if no other punishment is provided, to 14 yrs
imprisonment. (14 yrs)
(3) Attempts to commit any other indictable offence is liable, if no other punishment is
provided, to a punishment equal to one-half of the greatest punishment to which
an offender convicted of the offence is liable. (1/2 attracted by completed offence)
538 Reduction of punishment
(1) If it is proved that person desisted of person's own motion from further pros of the
person's intention, w/o its fulfilment being prevented by circumstances
independent of the person's will, the person is liable to one-half only of the
punishment to which the person would otherwise be liable.
(2) If the punishment to which the person would otherwise be liable for the attempt is
imprisonment for life, the greatest punishment to which the person is liable is
imprisonment for 14 yrs.
- See also specific attempt offences (e.g. s 306 Attempted Murder (max life); s 350
Attempted Rape (max 14 yrs); s 412 Attempted Robbery (max 7 yrs simpliciter))
S 4 ATTEMPT ELEMENTS
1. INTENTION TO COMMIT AN OFFENCE
- All attempts of offences are specific intent, even when the substantive offence is not
one w/ specific intent (e.g. completed offence of rape is not offence of specific intent
but w/ attempted rape, offence of specific intent, attempting to have sexual
intercourse when knowing other party not consenting or reckless to intent therefore
specific intent offence [A-G's Ref No 1 of 1977]
- With attempts, you are trying to achieve a specific result, so an intention is req’d
- Attempted murder requires intention to kill, but intention to do GBH is insufficient
- Manslaughter cannot be attempted, where intention to kill – right offence is
attempted murder
2. THE COMMENCEMENT OF COMMISSION OF OFFENCE BY MEANS ADAPTED TO ITS
FULFILMENT
3. THE MANIFESTATION OF INTENT BY SOME OVERT ACT
- Mere preparation is insufficient (true attempt vs. mere preparation)
ATTEMPTS v PREPARATORY ACTS
- Last step: accused has taken his/her last step towards the commission of the
offence
o Precise but criticised b/c it is too precise/restrictive; lots of facts will fall outside
scope
- On the job: accused be on scene of planned offence and executing last stage of
criminal design
o Restrictive
- Proximity: act which is close to the completed offence
o But too vague, too broad
- Substantial step: substantial progress to have been made to execution of criminal
design; considers how much progress has been made and what remains to be done
o Vague
- Unequivocality: an act which unequivocally indicates/evidence offender’s intention
to commit offence; any conduct susceptible to innocent interpretation is excluded
o Precise but criticised for being too accepted; accepted in Williams – no single
satisfactory test
o An act done w/ 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 w/ which it
is done.
IMPOSSIBILITY- Can you be found guilty of an attempt if it is impossible to achieve?
YES
- Might attempt to do something that is impossible to achieve
- Factual impossibility  MANDATORY LIFE IMPRISONMENT MEANS A PENALTY OF LIFE IMPRISONMENT THAT
o Immaterial that it is impossible in fact to commit offence, s 4(3): e.g. adoption of
insufficient means.
o Will be criminally responsible where he/she failed to complete b/c ineptitude,
inefficiency, adopted means not up to job, so long as what they set out to do
was to commit an offence (e.g. entering room to steal something that wasn’t
actually there; pick-pocketer picking an empty pocket when trying to steal)
o E.g. attempted murder, quantity of poison sought to be administered was
inadequate and couldn’t kill [R v Collingridge; R v English]
CASE SUMMARIES
Williams – victim naked on floor, victim on top of her; stated ‘I’m going to have you
whether you like it or not’, attempted penetration w/ finger; victim free; not necessary OTHERWISE BE LIABLE.
[D] should take last/near last step for attempt, done enough; distinguishable from
Edwards
Edwards – accused found naked facing back of horse; found means were not immediately
concerned w/ fulfillment of purpose, hadn’t done enough
Deutsch – [D] interviewed 4 women for job, one woman undercover officer; job required
women to have sex w/ clients; didn’t make employment offer to officer, but asked to
think about it; acts not mere preparation b/c if accepted, no other step left and offence
complete
Campbell – [D] apprehended 25 m from bank carrying imitation firearm and threatening
note; not attempted robbery b/c not on job
Henderson – attempted robbery when accused stopped by police while driving towards
bank w/ guns
Aston-Brian – house broken into, vehicle stolen containing keys/garage opener; [D] and
friends found 400 m outside house in car, returning to steal other cars; not attempt b/c
[D] must put his intention into execution (i.e. overt act/fulfillment) – intention to commit
offence alone not sufficient
Da Silva – D took jerry cans filled w/ petrol and spilled around P’s house, was caught
before he could set fire and left; evidence relevant to establish that D’s presence at P’s
residence included evidence relevant to proof of his intent
R v Collingridge – C rightly convicted of attempted murder after throwing live cable
into tub w/ wife, even though current flowing through wire was insufficient to cause
electrocution
R v English – accused could be liable for attempting to receive stolen vehicle when in fact
it was in hands of authority, and undercover officer was posing as a thief
FORMS OF INCHOATE LIABILITY:ATTEMPTING TO COMMIT AN OFFENCE , SS 4, 535, 536
AND 538
S 535 ATTEMPTS TO COMMIT INDICTABLE OFFENCES
(1) IF A PERSON ATTEMPTS TO COMMIT A CRIME, THE PERSON COMMITS A CRIME.
(2) IF A PERSON ATTEMPTS TO COMMIT A MISDEMEANOUR, THE PERSON COMMITS A
MISDEMEANOUR.
S 536 PUNISHMENT OF ATTEMPTS TO COMMIT INDICTABLE OFFENCES
(1) A PERSON WHO ATTEMPTS TO COMMIT AN INDICTABLE OFFENCE PUNISHABLE BY
MANDATORY LIFE IMPRISONMENT IS LIABLE, IF NO OTHER PUNISHMENT IS PROVIDED,
TO LIFE IMPRISONMENT.
(2) A PERSON WHO ATTEMPTS TO COMMIT AN INDICTABLE OFFENCE PUNISHABLE BY
LIFE IMPRISONMENT BUT NOT MANDATORY LIFE IMPRISONMENT IS LIABLE, IF NO
OTHER PUNISHMENT IS PROVIDED, TO 14 YEARS IMPRISONMENT.
(3) A PERSON WHO ATTEMPTS TO COMMIT ANY OTHER INDICTABLE OFFENCE IS LIABLE,
IF NO OTHER PUNISHMENT IS PROVIDED, TO A PUNISHMENT EQUAL TO ONE-HALF OF
THE GREATEST PUNISHMENT TO WHICH AN OFFENDER CONVICTED OF THE OFFENCE IS
LIABLE.
(4) IN THIS SECTION—
CAN NOT BE MITIGATED OR VARIED UNDER THIS CODE OR ANY OTHER LAW. (IF THEY
NEVER TRIED TO BACK OUT)
S 538 REDUCTION OF PUNISHMENT
(1) WHEN A PERSON IS CONVICTED OF ATTEMPTING TO COMMIT AN OFFENCE, IF IT IS
PROVED THAT THE PERSON DESISTED OF THE PERSON'S OWN MOTION FROM THE
FURTHER PROSECUTION OF THE PERSON'S INTENTION, WITHOUT ITS FULFILMENT BEING
PREVENTED BY CIRCUMSTANCES INDEPENDENT OF THE PERSON'S WILL, THE PERSON IS
LIABLE TO ONE-HALF ONLY OF THE PUNISHMENT TO WHICH THE PERSON WOULD
(2) IF THE PUNISHMENT TO WHICH THE PERSON WOULD OTHERWISE BE LIABLE FOR THE
ATTEMPT IS IMPRISONMENT FOR LIFE, THE GREATEST PUNISHMENT TO WHICH THE
PERSON IS LIABLE IS IMPRISONMENT FOR 14 YEARS.
 SEE ALSO SPECIFIC ATTEMPT OFFENCES EG. S306 ATTEMPTED MURDER
(MAX LIFE); S350 ATTEMPTED RAPE (MAX 14 YRS); S412 ATTEMPTED
ROBBERY (MAX 7 YRS SIMPLICITER)
SECTION 4(1)-(2) (NOT FOUND IN CODE LIKE ATTEMPTED MURDER)
(1) WHEN A PERSON, INTENDING TO COMMIT AN OFFENCE, BEGINS TO PUT THE
PERSON'S INTENTION INTO EXECUTION BY MEANS ADAPTED TO ITS FULFILMENT, AND
MANIFESTS THE PERSON'S INTENTION BY SOME OVERT ACT, BUT DOES NOT FULFIL THE
PERSON'S INTENTION TO SUCH AN EXTENT AS TO COMMIT THE OFFENCE, THE PERSON IS
SAID TO ATTEMPT TO COMMIT THE OFFENCE.
(2) IT IS IMMATERIAL, EXCEPT SO FAR AS REGARDS PUNISHMENT, WHETHER THE
OFFENDER DOES ALL THAT IS NECESSARY ON THE OFFENDER'S PART FOR COMPLETING
THE COMMISSION OF THE OFFENCE, OR WHETHER THE COMPLETE FULFILMENT OF THE
OFFENDER'S INTENTION IS PREVENTED BY CIRCUMSTANCES INDEPENDENT OF HIS OR
HER WILL, OR WHETHER THE OFFENDER DESISTS OF HIS OR HER OWN MOTION FROM
THE FURTHER PROSECUTION OF THE OFFENDER'S INTENTION.
ATTEMPTS DEFINED, S 4(1)
• MUST HAVE INTENTION TO COMMIT AN OFFENCE:
• INTENTION IS AN ELEMENT OF ALL ATTEMPTS, EVEN
OFFENCES NOT CONTAINING AN ELEMENT OF INTENT, E.G.: INTENTION TO
RAPE REQUIRED FOR ATTEMPTED RAPE: A-G'S REF NO 1 OF 1977 [1979] WAR 45
ATTEMPTED MURDER REQUIRES INTENTION TO KILL, AND INTENTION TO DO
GBH INSUFFICIENT.
• THE COMMENCEMENT OF THE COMMISSION OF THE OFFENCE BY MEANS
ADAPTED TO ITS FULFILLMENT
• THE MANIFESTATION OF THE INTENT BY SOME “OVERT ACT”: HAS TO HAVE
CONDUCT, NOT JUST THINKING TO DO SOMETHING IN SHOWER
TESTS FOR MAKING DISTINCTION; (BETWEEN ATTEMPTS AND PREPARATORY ACTS)
• ‘LAST STEP’ S4 EXCLUDES THIS TEST
• ‘ON THE JOB’
• ‘PROXIMITY’: EXAMPEL DRIVE CAR TOWARDS STEALING BANK, HOW CLOSE
• ‘SUBSTANTIAL STEP’: HOW MUCH PROGRESS MADE VS HOW MUCH
REMAINS TO BE ACCOMPLISHED
• ‘UNEQUIVOCALITY’: ACT THAT INDICATS YOUR GOING TO COMMIT CRIME
• WILLIAMS (1965) QD R 86; ATTEMPTED RAPE, HAS LADY ON FLOOR AND HE
WAS ON TOP OF HER,HE HIT HER FACE,TOLD HER IM GOING TO HAVE
YOU,ATTEMPTED TO GET PENIS OUT, INSERTED HIS FINGERS IN HER, SHE
FOUGHT AND GOT FREE, HE SAT BACK AND STARTED TO CRY. APPEALED
BEAUSE INSUFFIECENT EVIDENCE OF RAPE
• R V EDWARDS (1956) QWN 16;USED THIS TO DEFINE MEANS ADAPTED TO
FULLFILLMENT; EDWARDS WAS FOUND STANDING NAKED BEHIND MAYOR
NAKED, BUT THEN JUDGE SAID THE MEANS WERE NOT MEANS TO
FULLFILLMENT, JUDGE SAID ITS NOT NECCEARY FOR EDWARD TO TAKE LAST
STEP TO FULLFILL.
• DEUTSCH [1986] 2 SCR 2; HE INTERVIEW WOMEN FOR SALES POSITION,
LADY WAS UNCOVER COP, HE SAID HIGH SALARY, BUT HAD TO HAVE SEX
WITH CLIENTS, BUT HE NEVER GAVE HER OFFER BUT SAID THINK IT OVER.
COURT SAID IT WAS ATTEMPT, DIFFERENCES BEWTEEN ATTEMPT AND
PROPRATARY IS ON COMMON SENSE AND IFFERENT BETWEEN EACH CASE
• CAMPBELL [1991] CRIM LR 268; ACCUSED APPREHENDED 25M FROM
BANKW ITH GUN AND NOTE, THIS IS NOT ATTEMPTED ROBBERY, LOOK NEXT
CASE ITS OPPOSITE.
• HENDERSON [1949] 2 DLR 121; THIS CASE IT WAS ATTEMPTED WHEN GUY
PULLED OVER WITH GUNS GOING TOWARD BANK
• R V ASTON-BRIEN [2004] QCA 23; HOUSE BROKEN INTO, AND CAR, KEYS AND
REMOTE CONTROL STOLEN. AB WAS FOUND SITTING BY HOUSE WITH STUFF.
IMMPLICATION WAS THAT THEY WERE RETURNING, HE WAS CONVICTED
FOR ATTEMPTED ENTRY, J JERSY SAID: FOR ATTEMPT TO OCCUR, THE
PERSON MUST HAVE BEGUN TO PUT HIS INTENTION INTO EXECUTION, AND
TO MANIFUST THAT INTENTION BY AN OVER ACT. THIS CASE HE SAID HE
NEVER PUT HIS INTENTION.
IMPOSSIBILITY (IMMPOSIBLE TO COMMIT OFFENSE, CAN YOU BE CHARGED?)
• FACTUAL IMPOSSIBILITY

• IMMATERIAL THAT IT IS IMPOSSIBLE IN FACT TO COMMIT OFFENCE, S 4(3):

EG ADOPTION OF INSUFFICIENT MEANS. (A SIMILAR RULE EXISTS AT
COMMON LAW IN RELATION TO CONSPIRACIES: DPP V NOCK [1978] 2 ALL
ER 654)

• WILL BE CRIMINALY RESPONSIBLE WHERE THEY FAILED TO COMMIT CRIME

BECAUSE OF: INEPTUTED, INNAFICENCY, OR ADOBTION OF INNSUFIECENT
NEEDS.

• R V COLLINGRIDGE (1976) 16 SASR 117: DEFENCED HAD BEEN RIGHTLY

CONVICTED OF ATTEMPTED MURDER, EVEN IF IT GOES AGAINST SCIENTIFIC
EVIDENCE, EX: SHOCKING SOMEONE BY ELECTRICTY

• R V ENGLISH (1993) 10 WAR 355 READ IN CM: SOMEONE COULD BE LIABLE,

EVEN IF HE TRIES TO STEAL A CAR, EVEN THOUGH ITS IN HANDS OF AN
UNDERCOVER COP.
 DEFENCES 2. External physical force [Murray v The Queen; Ugle v The Queen] Murray v The Queen – words exchanged, [D] loaded and got gun, deceased threw
- Standard burden defences: accused bears evidentiary burden to raise defence (i.e. - E.g. If A pushes B into C, A is guilty of common assault and not B. Application by force something at [D], gun went off and killed deceased; involuntary b/c injury to head and
put some evidence before court, not necessarily proof). If burden discharged, pros by B wasn’t a willed act by B. B didn't voluntary apply any force to C. faulty trigger on gun
bears legal burden of disproving defence beyond reasonable doubt [Woolmington], Ryan v The Queen - reflex action and automatic reaction have no application where
unless overridden by statute reversal 3. State of Automatism (acting like a robot) person put himself in situation where finger on trigger of loaded rifle levelled at another
- Reverse burden defences: Accused bears evidentiary burden to raise defence, but - Where the accused’s actions were directed by their unconscious mind man; consequence of shooting/killing someone is probable/foreseeable =voluntary act
must also discharge legal burden on balance of probabilities (must prove defence too) - A state of dissociation (mind and body aren’t connecting), involuntary act done during Ugle v The Queen – altercation, [D] armed, [D] put hand up to defend himself, stabbed
a state of automatism victim b/c holding knife; possible lack of will
Standard Burden Defence Reverse Burden Defence - Act which is done by muscles w/o any control by mind, such as spasm, reflex action, or Cooper v McKenna – dangerous driving b/c concussion from football match  involuntary
convulsion, or an act done by person who isn’t conscious of what he is doing, such as (physical blow)- sane automatism; such claims require careful scrutiny b/c common
- Lack of will (s 23(1)(a)) - E - Insanity (s 27)
an act done while suffering from concussion or while sleep walking. (Drugs, alcohol) knowledge that blackouts first refuge of guilty mind
- Accident (s 23(1)(b)) - E - Mistake of fact (s 24(1)) for drug
- Mistake of fact (24(1)) -E offences Leonboyer – fiancé sleeping w/ someone else, insulted him and he stabbed her; words
- Sane automatism (s 23(1)(a)): alone never sufficient for provocation; automatism raised in case; eyes flickering,
- Claim of right (s 22(2)) -E - Provocation (s 304- defence to murder)
- Impairment must be caused by external factors (e.g. physical blow) or psychological blow memory loss; both provocation and sane automatism failed
- Provocation (s 269- defence to assault) - Killing in abusive relationship (s 304B)
(brain shuts off bc of some stimulation) acting on a normal mind, rather than abnormal ACCIDENT
- Defensive Force - Diminished Responsibility (s 304)
mind/mental illness, which caused a normal mind to disassociate, and WON’T include
- Compulsion (s 31) –no GBH/murder - Carnal Knowledge with or children 23(1)(b): Not criminally responsible for an event that (cant use for criminal negligence)
self-induced intoxication if it was the reason for the why the dissociation occurred (s 28)
- Emergency (s 25)- under 16 (s215)(5) (i) person didn’t intend or foresee as a possible consequence; and [subjective]
[Falconer- internal/external test; Cooper v McKenna; Leonboyer].
- Medical Necessity (s 282)- E - Intoxication (s 28)(1) (ii) an ordinary person would not reasonably foresee as a possible(if remote then not
- Ordinary person test- COULD any ordinary person have potentially disassociated in possible:taiters) consequence. [objective] [Taiters]- more important test
those circumstances” If proven, complete acquittal
* NOTE: work to knock out positive elements of charge (i.e. Crown case) first, then move
- Automatism due to external cause by a physical blow or psychological blow (so factors
to defence. E.g. someone shot and killed someone but believed gun unloaded, challenge
other than insanity or intoxication) is governed by ordinary principles of criminal 23(1A): person is not excused from criminal responsibility for death or GBH that results to
fault element of murder that [D] didn’t intend to kill/GBH if holding unloaded gun; don’t
responsibility under s23 (1)(a) lack of will victim b/c of a defect, weakness or abnormality (egg-shell skull rule- take victim as you
jump right to s 24 mistake. However if person knew gun loaded but were under attack
- When your mind and body aren’t working together: dissociation (blacked out find them) – can’t say it’s not your fault bc the victim was ____.R v Stendl Still apply the
and shot to defend themselves, pros makes out positive elements of case, but defence
,big pupils) foreseeability tests ignoring the condition of the victim OR IS THE DEFENCE NOT
raises self-defence.
AVAILABLE AT ALL?
THREE CATEGORIES
- If insane automatism, need be look at s 27 insanity- where accused acted as an - Event: consequences of actions were neither foreseen nor foreseeable [Kaporonovski]
- Personal responsibility denied (e.g. lack of will, accident, mistake of fact, mistake of
automaton (deluded state/dissociated) involuntarily due to disease of the mind (internal - Doesn’t apply to offences of specific intent b/c if intention established, accident
law, claim of right)
factor) irrelevant.
- Context justified conduct (e.g. self-defence, defence of other people/property,
- The cause of the dissociation will determine if looking at sane automatism or insane - Doesn’t extend to negligence-related offences and duties contained in ss 285 to 290
compulsion(forced to do it))
automatism (insanity)- Falconer Internal/External Test [R v Hodgetts and Jackson]. Instead argue negligence falls short of criminal negligence
- Mental impairment (e.g. insanity, diminished responsibility, intoxication)
- Insane automatism refers to the reaction of an unsound mind to its own under the CC.
delusions or to external stimuli. Internal working of an abnormal mind.
- Justifications: a reason exists for committing the conduct elements of an offence - Sane automatism refers to the reaction of a sound mind to external
- Excuses: will not presumptively negative criminal liability, but may be recognised as stimuli including stress-producing factors MISTAKE OF FACT- MISTAKEN AS TO THE EXISTENCE OF OBSERVABLE FACTS
a valid defence in certain situations - Sleepwalker- internal working of a person’s mind- a trend to see sleepwalking as SANE 24(1): Acts/omis under honest + reasonable + mistaken belief not criminally responsible
- Reliance on mental impairment as a valid defence where it is deemed inappropriate automatism [R v Parks] for the act or omission to any greater extent than if the real state of things had been
to apply the standard laws of criminal responsibility to an accused such as the person believed to exist.
ASK:
1. Did dissociation occur? [Leonboyer]- indicia of dissociation: blackout, glazed eyes, loss - [D] might not need to raise defence if [P] can’t prove the mental element of intention
LACK OF WILL of memory, dazed, flickering eyes – Yes; Therefore, state of automatism. for the offence (e.g. stealing, fraud). If accused didn’t possess req’d mens rea, pros
23(1)(a): Not criminally responsible for an act/omission that occurs independently of 2. If yes, why did it occur? fails on that belief.
exercise of person’s will - External factors: - Must be mistake of FACT, not law
o physical blow- which caused disassociation, then s23(1)(a)- lack of will - Belief must be positively held (doesn’t matte if you did everything you can), NOT
- Presumption of normal mental capacity, including capacity to control one’s actions (sane automatism) [Falconer] MERE STATE OF IGNORANCE. [GJ Coles & Coy v Goldsworthy; Gould and Barnes;
[Falconer]. [D] must rebut this presumption, that he wasn’t of sound mind, on the o psycho blow- which caused dissociation, then must ask “Did the accused
McPherson v Cairn]
balance of probabilities to life evidentiary burden. If rebutted and pros unable to disassociate bc of an abnormal mind OR COULD any ordinary person
prove legal burden beyond reasonable doubt, complete acquittal. have potentially disassociated in those circumstances”
HONEST AND REASONABLE BELIEF
[Falconer]consider past history. Latter = automatism due to external
- Subjective – whether or not jury accepts that [D] did in fact hold honest, but mistaken
ACT cause by a psych blow = lack of will (sane automatism); former=
belief- Accused did honestly believe…
- Physical actions that occurred independently of will [Kaporonovski]; not under mental automatism due to internal cause by a mental disease= s27 insanity
o Need to take into account all factors that affect [D]’s perception of material fact
control of accused [Falconer] o “Therefore, the physical act occurred independently of the will and not
(e.g. age, limited intelligence, intoxication)
- Death-causing act in homicide (e.g. discharge of loaded shot-gun, stabbing) [Murray v under the control of the accused because accused suffered from sane
- Objective – whether or not it was reasonable for [D] to make that mistake in the
The Queen; Ugle v The Queen] automatism where impairment was caused by an external factor acting
circumstances
on a normal mind which caused the accused to dissociate, however the
- **Belief must be both subjectively honest and objectively reasonable, but it’s the
UNWILLED OR INVOLUNTARY CONDUCT- jury decides indicia for dissociation are not particularly strong if Leonboyer is
accused’s belief which is of central relevance – “Could accused have reasonably
1. Reflex action followed”
formed mistake?/Was it reasonable in the circumstances for this accused to hold the
- Reflex action following a recede of a painful stimulus [Murray v The Queen] - Internal factors bc of mental disease/impairment: go to s 27 insanity [R v Mursic]
belief?” [R v Wilson; Mrzljak]
- Quick reaction may not mean it’s unwilled act because intention to act can be carried - Jury applies an objective standard to the accused’s belief
out in split-second (hard to distinguish from a spontaneous but willed act) CASE SUMMARIES o R v Wilson- Facts: [D] guilty of dangerous operation of motor vehicle causing
- Regardless, once accused lifts evid burden, onus is on Pros to lift legal burden BRD Falconer – deceased reached out to grab F, shot and killed him; long history of death/GBH; need belief in state of things (i.e. overtake other vehicle)
physical/sexual abuse; psychological blow (sane automatism); BWS. F suffered from - Subjectives included in objective test are things accused has no control over, such as
psycho conflict (love/hate feelings) which caused her to temp disassociate from actions age, gender, physical or mental disability, but doesn’t include intoxication [Aubertin; R
(blackout). Ordered re-trial. So don’t even know the result. v Mrzljak]

NOT CRIMINALLY RESPONSIBLE TO ANY GREATER EXTENT
-A successful claim under section 24 will not always result in a complete acquittal
because s24 only provides that the person who makes an honest and reasonable mistake
is to be treated as if the facts had been as they thought that they were. Thus you can be
guilty of a lesser or different offence. (e.g. [D] has sex w/ 15 yr old person, rape charge
will fail if they raise s 24 (i.e. mistake as to consent), but judged on facts, [D] still had sex
w/ 15 yr old, alternative charge of unlawful carnal knowledge bc consent isn’t an element
for that).
-Mistake of Fact can be combined with other defences if applicable.
 Ex: an accused is able to establish that he had an honest and reasonable mistaken
belief that his victim was about to attack him with a knife to which he then
defended himself. This means that if the prosecution can’t negative that assertion,
the accused is entitled to be judged as though the victim was about to attack him
with a knife and so that would mean that he was entitled to raise the defence of
self-defence under s.271 because he felt under threat from a knife. The jury would
have to consider whether his response to that, fell within the realms of that
defence (s. 271) which may in fact result in a complete acquittal if they found his
actions to be necessary in the circumstances.
MISTAKE OF THE LAW (NOT COVERED BY S24)
22(1): Mistake/Ignorance of the law not an excuse for act/omission, unless knowledge of
the law by the offender is expressly declared to be an element of the offence.
22(3): Not responsible if at time statutory instrument wasn’t known to the person and
hadn’t been published, reasonably made available, or known to public or people affected
[Kennedy; Sancoff v Holford; Ostrowski v Palmer]
CASE SUMMARIES
Kennedy – bigamy case, married to 2 people is illegal; mistaken belief of earlier marriage
being invalid is a mistake of law
Tolson- If a person believes their first spouse was dead and then remarried that would be
a mistake of fact and there would be a defence available.
Sancoff v Holford – [D] had pornographic books, knew content but claimed they weren’t
obscene – error of law for which there was no excuse, not fact bc he knew there was
porno pics in the book
Ostrowski v Palmer – given wrong information as to where he could fish, told by gov’t
department – mistake of law, not fact
PROVOCATION (PROVOKED)
- Only available for assault-based offences (assault, AOBH, common/serious assault) or
murder and no other offences (i.e. not GBH, wounding, s 317, manslaughter,
attempted murder etc.)
- Not reasonable person, but ordinary person – flawed, minimum standard of conduct,
of same age
- Often run as a fall-back defence to self-defence, so run that first then provocation
DEFENCE TO ASSAULT-BASED OFFENCES (PROVOCATION)
**COMPLETE DEFENCE**
-standard burden applies
**If there is evidence of revenge, plotting, planning, pre-med, don’t use this defence bc
then no loss of self-control
268 Provocation (definition)
1. Wrongful act or insult (cannot be lawful- skank/whore/bitch is not an insult)
2. When done to an ordinary person, or someone in person’s immediate care, or conjugal,
parental, filial, or fraternal relation, or master/servant
3. Deprives an ordinary person of the power of self-control (see obj test below)
4. Assaults the person who did the wrongful act or made insult
CONDITIONS for Defence (s 269(1))
A person (1) is not criminally responsible for an assault committed upon another (2) who
gave the person (1) provocation for the assault IF: (must happen right away)
- Person is deprived by provocation of power of self-control. All characteristics relevant
e.g.: intoxication or short temper, age, race [Salaman v The Queen], previous
circumstances (i.e. past sexual abuse) [Green v R], mental illness [A-G for Jersey v Holley]-
SUB TEST (do this before objective)
- Person acts upon it ‘on the sudden’ and before there is time for the ‘passion to cool’ –
temporal connection b/w provocative act and response- impulse, without delay (SUB)
- The force used is not disproportionate to the provocation (OBJ)
- And force is not intended or likely to cause death/GBH (OBJ)
- ‘Wrongful act’ or insult can include words only for assault; extremely hurtful, violent
attack or threat by word [Stingel]
Objective Test TO DETERMINE IF PROVOCATION OR NOT (ELEMENT #1)- do first
- Ordinary person test –gauge gravity of provocation in context and determine whether
such provocation (grave or not) would be likely [Hind and Harwood v R- real and not
remote chance] to cause an ordinary person to lose self-control to the extent the
accused did[Stingel] (to see if the provoking was actually a provocation at law (don’t
take intoxication into account for an ordinary person))
- TEST: Whether, in all of the circumstances of the case, the wrongful act/insult, w/ its
implications and gravity identified and assessed in the manner, was of such a nature
that it could or might cause an ordinary person (or, when appropriate, an ordinary
person of the age of the accused) to do what the accused did? [Stingel]
- Personal characteristics of accused taken into account to gauge severity of provocative
conduct (i.e. take into account who provocation was offered to- racial slur, cumulative
affect [e.g. bullying], sensitivities [e.g. disability]) and then consider if it would have
caused ordinary person to lose self -control [Mungatopi]
CASE SUMMARIES
Green v R – G stabbed friend w/ scissors after he made a move on him; G had alternative
options
A-G for Jersey v Holley – accused’s alcoholism as disease not considered; loss of self-
control has to be judged by applying objective standard of degree of self-control
expected of ordinary person of [D]’s age/sex
Stingel – [D] 19 yr old infatuated(inlove) w/ ex-gf; ex and T sitting in parked car; [D]
attacked T w/ knife and killed him; claimed he lost control; [D]’s reaction fellow below
minimum limits of power of self-control of hypothetical 19 yr old
Mungatopi – ordinary person was one w/ cultural characteristics w/ person from remote
aboriginal community; Stingel still binding authority
DEFENCE TO MURDER (PROVOCATION)
**PARTIAL DEFENCE ONLY (REDUCE TO MANSLAUGHTER)**
- reverse burden applies (304)(7)
304(1) Killing on provocation
1. When a person unlawfully kills another(s300) that would normally constitute murder,
but..
2. Does death-causing act in heat of passion (not anger or revenge) caused by sudden
provocation(has to have happened right away) and...(SUBJ)
3. Before there’s time for passion to cool (b4 there is time to regain self-control),
then...(SUBJ)
4. Guilty of manslaughter only
Subjective Test
- Act (response) which causes death must happen during an actual loss of self-control
caused by sudden provocation in heat of passion b4 time for passion to cool [Pollock v
The Queen]
- Surrounding circumstances, including personal attributes of accused can be taken into
account (see assault version)
- Exception: ‘caused by sudden provocation’ need not necessarily be immediate [Muy
Ky Chhay- killed husband during sleep bc b4 he slept he beat her and was probably
going to beat her in the morning- took into account entire history of provocation]
Objective Test TO DETERMINE IF PROVOCATION OR NOT (Element #1)- do first
- CL test – was provocation of such a nature as to be sufficient (i.e. could) to cause an
ordinary person to lose self-control and do the act (no need for proportionality)
[Stingel; Pollock v The Queen]
o Look at nature and extent of the reaction that might cause an ordinary person to
lose SC, rather than duration/precise physical form
- Gauge gravity of provocation in context (see assault version) [Moffa v R; R v Buttigieg;
Leonboyer; R v Damian Karl Sebo]
o 304(2) Words alone are insufficient to provocation of murder other than
extreme/exceptional in character [Leonboyer; Buttigieg]
o adultery (cheating) is insuffiecent as well- 304(3)-(6) In domestic relationship, if one
person unlawfully kills another due to sudden provocation based on something that
ends the relationship/changes nature of relationship, cannot use the defence except
its considered if circumstances from extreme/exceptional in character needs to be:
(violently provocative nature + accompanied by other circumstances- Moffa v R]
THIRD PARTIES (applies to both sides of defence)
- Person provoked isn’t person to whom provocation was directed: personal or general
Personal
- Assault: limits response and so the defence can react to provocation to persons under
immediate care, or in conjugal, parental filial (sons/daughters), fraternal relationship
(brothers/sisters), etc., and must be made in presence of accused (ss 268(1)-(2))
- Murder: no technical rules; slur/insult (provocative act) directed at one person can be
provocation to another if from same group (for general provocation)
Person Attacked Not Provoker (not complete defence)
- Assault: s 269 cannot use defence; if [D] made mistake and assaulted wrong person,
can run s 24 mistake in conjunction w/ defence of provocation
- Murder: CL has no technical rules, but requires sufficient nexus(connection to the
provocation) [Gardner; Pangilinan]
BURDEN
- Defence should be put to jury if circumstances support it even if accused hasn’t
specifically claimed loss of self-control [Cowan; Hart v R]
CASE SUMMARIES
Pollock v The Queen – [D] murdered father by hitting him w/ rock b/c loss of self-control
at time of killing (#/severity of blows); circumstances that accused had time to reflect
before reacting may show intentional killing w/ motive of reveng/punishment; re-trial
ordered
Moffa v R – adultery (cheating) can never by itself provide sufficient grounds for
provocation to go to jury; if words were of violent nature or accompanied by other
circumstances, might be open for jury to consider
R v Buttigie – murder by strangulation after she spent all money on new bf; victim
taunting him, he stopped, she taunted again, then he choked her again
Leonboyer – fiancé sleeping w/ someone else, she insulted him and he stabbed her;
words alone never sufficient for provocation; automatism raised in case; eyes flickering,
memory loss; both provocation and sane automatism failed
R v Damian Karl Sebo – gf confessed infidelities, taunting him; [D] struck her in the head,
died; successfully argued provocation; triggered changes to amendment
Gardner – G entered house, M in one bedroom, man S in another; G killed both b/c M
allegedly stated she engaged in sexual relationship w/ M; sufficient nexus/connection
b/w provocative words and death
Pangilinan – provocative act must have occurred in presence of victim and be offered at
person so closely associated w/ victim that it is reasonable for jury to attribute conduct of
that person to victim
Hart v R – H saw wife dancing/kissing friend, 2 knives on him; H intended to punch friend,
pushed wife towards him; put hands up and stabbed wife – reflex action; both lack of will
and provocation put to jury - inconsistent
SELF-DEFENCE
- S271: Applicable to any offence against the person and provides a complete defence
- Force should be necessary to repel another person and must be reasonable
(proportionality test)
- Standard burden applies: evidentiary burden on accused and legal burden on pros
beyond reasonable doubt that response was not reasonably nor necessary
DEFENCE OF PERSONS
– Run where accused apprehends some danger and attacks out of necessity or need for
self-preservation.
– ASK: who started it? Was it provoked on part of person who is seeking to use self-
defence? ON EXAM MUST PICK B/W 271+272
271(1): Self-Defence against UNPROVOKED assault [DEATH/GBH/INTENT TO CAUSE
EITHER MUST NOT RESULT] (you never did anything to provoke)
1. When a person is unlawfully assaulted( define:s245) and not provoked assault
2. Lawful for accused to use such defensive force that is reasonably necessary(RN)
(question of fact) to repel the assault/make effectual defence
3. If the force used was not intended and not likely to cause death/GBH (question of
fact)- WHICH TEST? OBJECTIVE?
- Objective standard- what would a RP do in the circumstances, but take into
account (margin of error) MOE doctrine which considers people’s feelings at the
time where they might use excessive force when it really wasn’t needed bc they
were just scared, panicking. [Zecevic v DPP; R v Gray]
- Question: Would a reasonable person who was scared use such force that the
accused did? (comes down to proportionality). If so, force was RN.
- Excessive force ≠ no defence (s283)
- [D] does not lose 271(1) as long as death/GBH wasn’t intended as a likely result [Prow-
victim died with one punch to jaw; not intended/likely]
271(2) [WHERE DEATH/GBH RESULTS]: Unlawful assault + not provoked
1. Have a reasonable apprehension of death or GBH from the assault
2. Belief on reasonable grounds there is no other way to respond to preserve
himself/herself from the apprehension of death or GBH
If yes, lawful to use ANY force that is necessary to defend, even if force causes death/GBH
3. Was the force necessary in the circumstances?
****needs to have assaut: so atleast a gesture not just mere words
- [D] Must reasonably apprehend death/GBH, and must also believe that there is no
other way to avoid injuries, and use necessary force
- Objective test for all elements, but include MOE doctrine
- In 271(2) they view reasonableness in the POV of the accused
- Obj assessment whether THIS accused had a reasonably apprehend death or GBH
and Obj assessment whether THIS accused reasonably believed they had no had
other option but to respond and Obj assessment that THIS accused thought force
was RN in the circumstances
- [Zecevic v DPP]– case for 271(2), but can take MOE doctrine from this and use in
271(1) – says that that you don’t have to measure the force used to the nicety- can
take into account accused might be scared, panicking, might use slightly more force
than necessary, but it is allowed
- Objective/subjective test – [D] must hold belief on reasonable grounds but existence
of actual belief is critical – context important [R v Gray; R v Prow]
* NOTE: see s 245 for definition of assault (2 Limbs) and s246 for unlawful assault
- if a person acts fearful towards another, that is not enough for them assault by
defending (must actually be assaulted first to justify the response)
- assault by threatened force requires bodily act or gesture (mere words ≠ assault- Hall v
Fonceca
272(1): Self-Defence against PROVOKED assault (so you start the fight)
When a person (shit-starter) has unlawfully assaulted another OR has provoked an
assault from another, and that other assaults the person (shit-starter) with such
violence…. the person is not criminally responsible for using any such force as is
reasonably necessary for such preservation, although such force may cause death or
grievous bodily harm.
1. Was there a reasonable apprehension of death or GBH?
2. Was there a belief on reasonable grounds that there was no other way to preserve
themselves from death or GBH?
3. Was necessary force used? (even though force may cause death/GBH)
272(2)
- No defence if began assault w/ intent to kill or do GBH, which lead to a response
(assault back) that lead provoker to fear death or GBH (victim could rely on
unprovoked SD)
- No defence to person who causes death or GBH endeavoured to kill or do GBH before
necessity for preserving themself arose
- UNLESS the shit-starter tried to deny further conflict, quit or retreat (walked away
then got pursued again)
* NOTE: see s 245 for definition of assault and s246 for unlawful assault
** See s 268 and s269 for definition of provocation
*** Go back to s 245 to see what kind of assault they responded with
273 Aiding in self-defence
If it is lawful for person to use force of any degree for purpose of defending him/herself
against an assault, then lawful for any other person acting in good faith to use a like
degree of force for the purpose of defending the first person.
- Run through SD elements (above) in accordance with the original person. If force was
reasonably necessary for the original person, then aider can use like force. If aider uses
like force, then lawful. If there is an issue with like force, state “Pros would have to prove
BRD that the force was more than necessary/excessive (283)” LIKE FORCE AN OBJECTIVE
TEST??
- Whatever the original victim would have been entitled to rely on (reasonableness of
force) will also apply to person coming to their aid (but remember age difference- it’s
a LIKE FORCE- cannot have an adult punching a 10 yr old, if his 5 yr old kid was entitled
to bc of bullying)
283 Excessive Force: use of more force than is justified by law under the circumstances is
unlawful
MISTAKES
– Mistake of fact about identity of attacker, nature or existence of assault (s 24)
– Mistakes about the response being reasonably necessary
o S 271(1), defence has to argue s 24 mistake. There is an objective assessment as to
what is reasonably necessary in s271(1). S 24 will provide excuse for accused who
acts under honest but reasonable and mistaken belief as to the use of force (person
looked way bigger/stronger, so thought I needed more force)
o S 271(2) and s 272 require ‘Reasonable apprehension of death/GBH’ and ‘believe,
on reasonable grounds’ so allows for reasonable mistakes anyway  no need to
rely on s 24.
o Margin of error doctrine: person apparently under attack, not expected to measure
w/ certainty or specificity on how much force to use; tests are going to have to be
applied w/ some flexibility to account for errors; focus is on D's belief concerning
necessity to use force rather than actual necessity [Zecevic v DPP].
CASE SUMMARIES
James v Sievwright – victim growled, J bit ear to stop entering/remaining in dwelling; did
not hold a belief that it was reasonably necessary, but had a different purpose of teaching
him a lesson
R v Gray – ongoing dispute w/ bike gang, they attacked, he shot at them
R v Prow – fist-fight, victim punched in jaw, died. Agreed that victim started fight;
unprovoked assault; accused was entitled to rely on s271(1) defence because the blow he
delivered was not likely/intended to cause death/GBH, even though it resulted
Lavallee v R – shot husband after threat to kill; BWS/violent relationship; psychiatric
evidence allowed
Osland v R – killed husband, dug grave in back yard, buried; BWS evidence admissible but
showed no issues of provocation/self-defence
DEFENCE OF PROPERTY
267 DEFENCE OF DWELLING (definition of dwelling s1 , it is in the burglary section)
1. Lawful for any person in peaceable possession of dwelling
2. To use ANY DEGREE of force to prevent or repel another person (not defend or else
SD)- can cause death/GBH if 4 is satisfied (reasonably necessary)
3. From unlawfully entering or remaining in dwelling
4. If there is a Reasonable Belief a) other person entering or remaining with intent to
commit indictable offence [and] b) it was necessary to use that force- both subjective
tests [James v Sievwright]
DEFENCE OF PREMISES
Can defend property using as much force as is reasonably necessary, but NOT force
amounting to GBH/death (if GBH occurs by accident  apply s23)
274: Person in peaceable possession of moveable property can use force reasonably
necessary to resist taking of property by trespasser, as long as no GBH (victim of
theft/robbery)- most common
275: same, but with claim of right aspect
276: Person who has possession by law of moveable property and attempts to take from
another who has possession of it, but neither has claim of right and person resists, lawful
for person entitled to possession to use force reasonably necessary to obtain possession,
as long as no GBH
277(1): Person in peaceable po271271ssession of land, structure, vessel, etc. to use force
reasonably necessary to prevent another person from wrongfully entering, as long as no
GBH (trespassers)
277(2): Person in peaceable possession of land, structure, vessel, etc. can remove any
person who conducts him/herself in disorderly manner, as long as no GBH (i.e. bouncers)
278: same as 277(1), but with claim of right aspetc
**CAN’T CAUSE DEATH/GBH. THEREFORE, USE DEFENSE OF ACCIDENT (s 23)**
- Egg shell skull rule DOES NOT apply to any of these (if you kill with one punch, not your fault)- true or
not?
CLAIM OF RIGHT
22(2): DEFENCE FOR PROPERTY OFFENCES: Not responsible for act/omission in the
exercise of an honest claim of right and w/o intention to defraud.
- Person acts under mistaken belief that they have legal interest/entitlement w/ respect to
property in question (not moral entitlement) [Skivington; R v Jeffrey and Daley; Williams].
- May be claim to use of an access to property as well as a claim of ownership. Not
restricted to offences under Criminal Code [Walden v Hensler; Molina v Zaknich].
- Right need not be reasonable [Walden v Hensler]
- Often no need to rely upon defence to answer to charge of stealing – if [D] honestly
believed that actual property was theirs, no fraudulent intention
- Can extend to a person aiding a person who holds an honest claim of right [Mueller v
Vigilante]
- Must be “honest” and it must be “w/o intention to defraud”. However using deceitful
or unlawful means to obtain property doesn’t exclude this defence [Lenard].
CASE SUMMARIES
Skivington – [D] gone into wife’s employer office, threatened w/ knife claiming owed
wages – honest claim of right; common assault b/c threatened person w/ knife but no
stealing/robbery; claim of right only for property charge
R v Jeffrey and Daley – [D] charged w/ aggravated robbery, claimed victims slashed tires
of car and went to demand compensation; defence relieves of charge for robbery
(property charge), not assault
Williams – [D] charged w/ burglary but said he’d been there before and returned b/c
invite to smoke weed; claim of right not honest, entered for unlawful purpose of taking
drugs, error by trial judge – honest means honest belief in entitlement, regardless proper
or lawful
Walden v Hensler – [D] believed under aboriginal custom/experience was allowed to
keep fauna, ignorance of law no defence but mistaken relationship b/w aboriginal custom
and state law; claim of right needs more than just ignorance
Molina v Zaknich – union rep claim of right of entry b/c invited by another member – claim
of right extends to offences raised under other statutes, not just Code
Mueller v Vigilante – [D] went fishing for crabs in protected area; argued claim of right
under native title
KILLING IN AN ABUSIVE DOMESTIC RELATIONSHIP
BATTERED WOMAN SYNDROME (BWS)- NOT A DEFENCE
- Expert evidence may be admissible on mental state of women who have suffered
long-term abuse w/ respect to: 1). Reasonable apprehension of violence (objective
 test contextualized); and 2). Reasonable belief in necessity of responding w/ violence
(objective test possibly individualised) [Lavallee v R; Osland v R; R v Secretary]
- BWS victims may use knowledge of partner to apprehend violence even if there are no
obvious signs
- BWS victims may suffer impaired capacity to perceive alternate courses of action
If provocation and self defense: so no immediate threat or assault:
PARTIAL DEFENCE: 304B(1): Person unlawfully kills another is guilty of manslaughter if:
(a) deceased committed acts of serious domestic violence against person; and(b) believe
that act was necessary for preservation from death/GBH; and (c) person has reasonable
grounds for the belief having regard to the abusive relationship + all circumstances
(3): Applies if acts of serious domestic violence appear minor/trivial when considered
(4): May apply even if the act/omission causing the death in response to a particular act
of domestic violence committed by deceased that would not, if the history disregarded,
warrant the response.
(5) Applies even if person (herself) committed acts of domestic violence in the relation
- S304B(2) for definition of abusive domestic relationship
- Actions necessary for self-defence and reasonable grounds for such belief
- Allows for situation where person kills in absence of any immediate threat/danger,
w/o loss of control, or loss of cognitive capacity
- Reduce offence to manslaughter  not complete defence
* NOTE: Both SD and Provocation can arise in abusive relationships, but this is a defence
to keep in mind as well as last resort
CASE SUMMARIES
Lavallee v R – shot husband after threat to kill; BWS/violent relationship; psychiatric
evidence allowed
Osland v R – killed husband, dug grave in back yard, buried; BWS evidence admissible but
showed no issues of provocation/self-defence
COMPULSION (DURESS AT CL)(CANT USE FOR MURDER OR GBH)
Complete Defence
31(1)(d): Not criminally responsible when:
(i) Person acts/omits in order to save him/herself or another, or his/her property or the
property of another person, from serious harm or detriment threatened to be inflicted
by some person in a position to carry out the threat; and
- (COULD ARGUE MISTAKE s 24 HERE)
(ii) Person doing the act/omission reasonably believes he/she or the other person is
unable otherwise to escape the carrying out of the threat; and
- objective: Was it reasonable for the accused to believe that he/she was unable to
otherwise escape the carrying out of the threat? [Smith] Y- no alternatives bc
threat was immediate, No alternatives available(no other way out)
- Was it reasonable to give into threat as no reasonable alternatives were available?
See below
(iii) Doing the act or making the omission is reasonably proportionate to the harm or
detriment threatened.
- Seriousness of harm threatened and seriousness of harm to be inflicted
- Killing is never proportionate (see 31(2))
31(2): Protection doesn’t extend to act/omission causing death/GBH, or intention to cause
GBH; nor to person entering unlawful association or conspiracy rendering him/herself liable
to such threats [R v Smith]
- TIMING IS A KEY ISSUE – what options/alternatives are available in the time frame?
- Relevance of risks to accused associated w/ alternative courses of action, as well as
age and circumstances (immediacy of the threat) [Makyrnikos]
- Threat must be immediate/continuing to be effective [Hudson and Taylor; Williamson;
Taiapa v The Queen] (if they could have went to police, then cant use defence)
- Person has rendered him/herself liable to such threats by having entered into an
unlawful association or conspiracy [Hurley and Murray; R v Shepherd] but you can use
this defence if at time joining the association you didn’t know they engage in violence
- Depends on the nature of the association (if you are in a crim organization or
organization that is violent, like selling drugs/weapons, armed robberies, such
threats are expected- shouldn’t have put yourself in that position, but if stealing
with a bunch of friends, don’t expect such serious threats)
If you back out from group you have to: R v Menniti – mtg b/w dealer and the police,
undercover; tried back out the end of the mtg, 1). Effective neutralisation, and 2).
Reasonable efforts; [D]’s conduct was to avoid liability; timely acts to counterbalance
earlier acts
- CASE SUMMARIES
- Ordinary burdens of proof apply. Evidentiary burden on defence, and then back to
pros to negative defence beyond reasonable doubt.
CASE SUMMARIES
R v Smith – supplied gun b/c threatened; need to consider reasonable for accused; S
young, not quick-thinking, late at night, remote location, family is house; convicted of
manslaughter b/c no knowledge of specific intent (low IQ)
Hudson and Taylor – perjury b/c threatened for future harm when giving evidence in
court room with offender present; rejected policy that accused couldn’t plead
compulsion if opportunity to ask for protection from police before committing offence
but failed; immediacy of the threat. The threat must be a 'present' threat in the sense
that it is effective to neutralise the will of the accused at that time, therefore
immediate
Williamson – threatened to dispose body; continuous pressure; had b/w Wed and Sun to
go to police; threat to inflict death/GBH may be present and immediate, even though
carrying out threat not immediate
Taiapa v The Queen – T threatened, trafficking/possession; applicant’s lack of faith in
policy not reasonable; had ample opportunity to escape. A threat not go to the police
removes the defence of compulsion bc that is an alternative
Hurley and Murray – threats made to de facto partner, helped men escape from jail; can’t
excuse threats if they were part of criminal activity
R v Shepherd – joined group who stole from shops; [D] refused, assaulted/threatened for
not going through w/ more; didn’t know group used violence; threats not foreseeable; if
you never knew about violence, you can still use compulsion defence
EXTRAORDINARY EMERGENCY (NECESSITY AT CL)(COMPLETE DEFENCE)
25 Not criminally responsible for an act or omission done or made under circumstances
of sudden OR extraordinary Nguyen emergency that an ordinary person possessing
ordinary power of self-control could not reasonably be expected to act otherwise.
- Examples: stealing an axe and saving people from a burning building. Driving
without a license to get someone to the hospital.
- Test is objective. Personal characteristics of the accused other than age are
immaterial [Stingel].
- “Here, the response was entirely expected in the circumstances because objectively,
an ordinary person possessing ordinary powers of self-control could not be
reasonably expected to act otherwise” [Warner v R; Strudwick v Russel]- could have
locked doors or driven to safe spot. If other options available, defense fails)
- The act must be proportionate to the emergency – What would the ordinary person
have done? Would the ordinary person see it as an emergency? Would the ordinary
person do something else? [Nguyen]- was the level of driving proportional after a
period of time? Depends on when the emergency actually ended- when the belief
stopped. When did accused reasonably believe that he was not being pursued
anymore? (subjective element). If can show subjectively that accused believed the
emergency lasted till the very last event, then can use defense for entire span to
excuse the act/omission bc was proportionate
- Defence of emergency plays residual role in situations that aren’t caught by other
defences.
- Require existence of certain factual preconditions in order to provide factual basis for
defence, not just reasonable belief in the existence of those facts
Emergency as a defence to Homicide/
- No reason why victim should die, defence won’t apply [R v Dudley and Stephens-
survival killings (cannibalism) is not an emergency]
- Reason why victim should be the one to die, defence is available [Re A (Children)]
- Requirements: 1). Act needed to avoid the inevitable; 2).should do no more then
Reasonably necessary; and 3). Act disproportionate to what’ s avoided
* NOTE: COULD ARGUE MISTAKE s 24 HERE. If no emergency, use mistake s 24 (honest +
reasonable + mistaken + positive belief there was an emergency- being pursued by
car/someone else)
Warner v R – [D] car pursued, followed, hit and dangerous driving to get away
Strudwick v Russell – [D] trying to escape from J trying to attack female passenger, other
options available rather than running red light
GV – sped through red light, hit other car; road rage, continuous threats, all recorded,
escape understandable
Nguyen – fled Vietnam via boat w/ people b/c fearful of being arrested/executed; no
imminent emergency but extraordinary
R v Dudley and Stephens – sailors shipwrecked, killed/ate boy; court couldn’t conclude
who would die first, convicted
Re A (Children) – conjoined twin, surgery would kill M (weaker); M self-designated for
death. Excused to kill weaker twin to give life to stronger twin. There must be a reason
to kill that particular victim- to save life of other joined twin, otherwise both would
have died
MEDICAL NECESSITY
Complete Defence
282 Surgical operations and medical treatment- not criminally responsible for
performing surgical operation without consent, provided:
1. It was conducted in good faith with reasonable care and skill
2. It was conducted for the victim’s benefit? (COULD ARGUE MISTAKE s 24 HERE)
3. It was reasonable to perform in the circumstances having regard to the patient’ state at
the time
- Standard burden applies
- S282A permits provision of palliative care to patient, even if it shortens their life
(increasing pain relief to the point where the body shuts down)
- 1. No defence for cases involving criminal negligence
- 2. Defence used to permit abortion (upon an unborn child) to preserve mental health
of mother as long as operation done on reasonable believe that it’s necessary to
preserve woman from serious danger to life or physical/mental health and in
circumstances not out of proportion to danger to be averted [K v T].
o Woman wanted abortion, man sought injunction, doctor not criminally responsible
b/c operation w/in s 282
- 3. Operation must be reasonable and proportionate to the circumstances
- Nolan- Defence of emergency (s25) v Defence of medical necessity (s282).
Conjoined twins. Raised 282 defence but trouble b/c had to consider interests of
both twins. Successful, but s25 would have been the better option because it took
away the requirement of looking at the interests of both of the twins.
MISTAKES
- Can argue s 24 mistake w/ s 25 or s 31(1)(d) in relation to existence of material facts, if
can show jury honest and reasonable belief
- E.g. mistaken belief re: existence of a sudden or extraordinary emergency, or mistaken
belief re: threat of serious harm or detriment, or mistaken that person not in position
to carry out threat
- Mistake about medical condition of patient won’t exclude s 282 defence so long as
mistake was reasonable in circumstances. Unreasonable mistake may amount to lack
of reasonable care/skill = criminal negligence.
INSANITY (INSANE AUTOMATISM, can use for everything) s27
Automatism due to internal cause by mental disease or mental impairment must be
governed by the rules on insanity s27 (1)
26 Every person is presumed to be of sound mind, and to have been of sound mind at
any time, which comes in question, until the contrary is proved.
- Party who raises issue bears onus of proof, on balance of probabilities when raised
either by defence [Falconer] or by pros [Re Walton] although law is unsettled re: pros.
647 Acquittal on ground of insanity- special verdict
(1) If person alleged that person not of sound mind when offence committed and is
acquitted of offence, the result is a special verdict of “not guilty by reason of
 unsoundness of mind” and the court is req’d to order the person to be kept in strict
custody, in such place and in such manner as the court thinks fit, until the person is
dealt w/ pursuant to the Mental Health Act 2000.
(2) Governor may give such an order for safe custody as seen fit.
- Prisoner/patient then liable for detention pursuant to a forensic order under s299 of
the Mental Health Act 2000.
Insanity Defence: S27 – ELEMENTS- Person is not criminally responsible for an
act/omission if:
1. That at time of offence accused was suffering from “a state of mental disease OR
natural mental infirmity” (which caused the dissociation) AND
2. That that mental disease COMPLETELY deprived accused of;
– Capacity to understand what he/she was doing; or
– Capacity to control his/her actions; or
– Capacity to know that he/she ought not do the act or make the omission.
[M’Naughten Rules]
– Reverse burden of proof
THREE CAPACITIES – complete deprivation required of ONE of these (not all 3), not mere
impairment (which would be okay for Diminished Responsibility)
1. Capacity to understand what you are doing
- Capacity to understand material character of actions/conduct (E.g. may not appreciate
ferocity of their assault could kill or seriously injure a person)
- Could deny mental element of the offence itself [Hawkins] (e.g. if pros has to prove
intention to kill or GBH, if because of mental illness that [D] doesn’t understand strength
and ferocity could kill or do GBH, pros could not prove mens rea)
- Would get special verdict even if the accused’s actions were foreseeable
2. The capacity to control your actions
- Proven by indicia of dissociation
- Did dissociation occur? [Leonboyer]- indicia of dissociation: blackout, glazed
eyes, loss of memory, dazed, flickering eyes
- Involuntary acts caused by incapacity to control one’s actions (i.e. insane automatism)
[R v Falconer] (narrow)
- Therefore, there was a complete deprivation of mental control over the accused’s
actions bc of an abnormality of the mind caused the accused to dissociate (internal
factor), so accused should not be crim liable
- automatism due to internal cause by mental disease or mental impairment
- Incapacity to control actions covers anyone whose impairment is such that they can't
overcome irresistible impulse to do something (e.g. repeat sex offender) (radical)
- No room for decision-making (narrow) vs. decision to engage in prohibited conduct
(radical)
3. The capacity to know that you ought not do the act/ought not make the omission
- Able to appreciate the moral wrongness, not whether legally they knew ought not to
do the act. – Some mental illness deprives moral guilt (e.g. person who believe that
he/she was acting under a divine command due to their mental illness) [Stapleton v R;
Ward v R; DPP v Ryan]
EVIDENCE OF MENTAL IMPAIRMENT
- Where accused unwilling/unable to go for full blown insanity defence, court must
consider evidence of impaired mental capacity which could mean the accused doesn’t
have the ability to form the requisite specific intent – then pros might not be able to
prove mental element of offence and fail the case [Turner; Hawkins]- also relevant to
defence of Diminished Responsibility (s304A)
- Mental disease: temporary or permanent derangement of his mind; an abnormal
mental state, no matter how caused or how transient; any form of physical or material
change or deterioration of the brain or recognizable disorder or derangement of the
understanding [Foy]
- Mental infirmity: mental condition doesn't have to be a disease, it can be genetic,
inherited abnormality; [Foy] Gaudron J In Falconer- those mental states which are
never experienced by or encountered in normal persons
- Both categories include major mental diseases or psychoses such as schizophrenia
[Bratty v A-G (Northern Ireland], depression [Milloy], as well as those not normally
associated w/ mental illness, such as epilepsy [R v Mursic], arteriosclerosis(restricts
blood flow) [Kemp], diabetic hyperglycaemia [Hennessy], delirium tremens(addicting
to alcohol or drugs which leads to insomnia, etc) [Dearnley]
Section 27(2) affected by delusions, if insanity defense doesn’t work Uses of intoxication evidence generally(1 has to happen so it lowers conviction):
1. A person whose mind, at the times of the persons doing or omitting to do an act, -to mitigate penalty at sentence
is affected by the delusions on some specific matter or matters, but who is not -to show that chronic consumption has led to brain disease, and thus a defence under
otherwise entitled to the benefit of s27, is criminally responsible for the act or s27 may be available
omission to the same extent as if the real state of things had been such as the -to show the temporary impairment of one of the capacities listed in s27 insanity defence
person was induced by the delusions to believe to exist. Ex: a dog told his owner (unintentional intoxication only)
to kill someone, or someone thinking there getting killed by someone. -to negative specific intent as intoxication prevented cognitive capacity to form the
CASE SUMMARIES requisite intent (intentional or unintentional)
R v Mursic – M convicted of attempted murder – hit wife and set on fire; M argued
epileptic automatism; epilepsy brain disorder, attributed to internal functioning, raised Intoxication Defence- S 28(1)
under s 27 not s 23(1)(a) - Person who was unintentionally intoxicated, s 28(1) states that provisions of s 27
Hawkins – [D] intended to kill himself, killed father; medical evidence showed insanity but apply. So not criminally responsible for conduct committed where unintentional
defence did not want to run it, Pros still needed to include evidence for formation of intoxication led to temporary deprivation of one of the arms of the s27 insanity
specific intent since accused was impacted by a mental impairment defence.
R v Parks – attacked wife’s parents, killed one, turned himself in while sleepwalking;
sleepwalking relates to internal workings, evidence in trial showed he was not suffering - Examples of unintentional intoxication: by coercion; or trick/fraud of another person;
from a mental impairment, acquitted on sane automatism or error of physician or chemist [R v Pearson]
Cf Burgess – an attack performed while sleepwalking was product of insanity - Issue is intention to become intoxicated “to any extent”, not degree experienced (i.e.
have few drinks, combined w/ other substances)
- Accused carries legal burden of proving relevant incapacity in same way as for insanity
DIMINISHED RESPONSIBILITY (304A)
defence (reverse burden), and on balance of probabilities
– Partial acquittal
- Results in special verdict of not guilty on account of unsoundness of mind in s 647
– Restricted to charge of murder, and if successfully raised will reduce to manslaughter
DRUGS/ALCOHOL + MENTAL ILLNESS
– Reverse burden defence- evidentiary and legal burden rests with the accused and
- Before person can rely upon defence of insanity to excuse responsibility, D has to
must be established on the balance of probabilities (no disproving by Pros)
establish that mental disease itself was of sufficient severity to deprive accused of
– Can only be raised by defence
capacity regardless of intoxication. Then s 27 applies [Re LIH].
- If the intoxication was the factor that deprived the capacity (not the pre-existing
ELEMENTS
mental illness), then s 28(3) will cover the field and [D] can’t rely on s 27 [R v Clough]-
1. Person who unlawfully kills must be suffering from an “abnormality of mind” (whether
arising from a condition of arrested or retarded development of mind or inherent
S 28(3)
causes or induced by disease or injury) and;
- Offences in which evidence of intention to cause specific result is an element, effect of
2. That “abnormal mind” must substantially impair one or more of person’s three
s 28(3) is that evidence of intoxication, either intentional or unintentional, will be
capacities (same as in s27):
admissible on question of whether or not intention was truly held (i.e. so impaired, no
– Capacity to understand what he/she was doing
intention)
– Capacity to control his/her actions
- Accused bears only evidential burden, legal burden on Crown to prove that intent
– Capacity to know that he/she ought not do the act or make the omission.
was present (intention to kill, GBH, etc.), not merely that accused had capacity to form
that intent [Cutter v R]
ABNORMALITY OF MIND:
– Same types of mental disease/mental infirmity as insanity [Whitworth]
Specific intent e.g.: General intent e.g.:
– DOES NOT include:
o Temporary effects of intoxication as opposed to enduring damage which • Murder, Turner • Manslaughter, O’Regan
• s 317- unlawfully causing GBH with • Rape, O’Regan
intoxication may cause to brain
o Conduct w/in normal range of human propensities/emotions (i.e. prejudice, anger, intent • Assault, Kusu CM
• Stealing, O’Regan – different intents, • Unlawful use motor vehicle, Kaeser
temper, jealous, base emotions)
o Particular attitudes/prejudices deprived from religious, political or partisan intention to permanently deprive • Incest, O’Regan
owner, fraudulent intent • Committing indictable offence (assault)
influences [Whitworth]
o Psychological factors not abnormalities unless they produce disease or injury • Robbery, Kaminski – intend to take in premises, ss 419(4), 421(2), Kusu
property and intentional use of force
(similar to s 27) [Whitworth]
- Personality disorder didn’t constitute abnormality [Re GMB] to overcome resistance **can’t use s 28(3)
• All attempts, O’Regan
• Committing indictable offence
THREE CAPACITIES
– Substantial deprivation of capacities (above) – less than total but more than trivial or (stealing) in premises, ss 419(4), 421(2)
Examples
minimum (in b/w) [Biess]
- Where specific intent can be knocked out, where there is simpliciter charge available
as alternative offence, effect of successful use of s 28(3) leaves person w/ conviction
INTOXICATION
of lesser offence
Automatism caused by the ingestion of alcohol or any other intoxicating substance must - Murder:
be governed by the rules of intoxication s28 (no defence where intentional intoxication) o Evidence of intoxication can be used -
*It happens after they have been convicted – Re murder: to support denial of specific intent to cause death/GBH (accused did
not understand death/GBH was virtually certain)
28 Intoxication – Re manslaughter: no defence (not an offence requiring specific intent element)
(1) s 27 applies to case of a person whose mind is disordered by intoxication without – NOTE FOR EXAM
intention on his/her part by drugs or intoxicating liquor or by any other means. - Causing GBH
(2) Doesn’t apply if intoxication intentionally caused o Evidence of intoxication can be used -
(3) When an intention to cause a specific result is an element of an offence, intoxication, – Re s 317: to support denial of specific intent to cause GBH
whether complete or partial, and whether intentional or unintentional, may be – Re s 320 GBH simpliciter: no defence bc no intent element – NOTE FOR EXAM
regarded for the purpose of ascertaining whether such an intention in fact existed.
- For stealing, once knocked out the intent element via intoxication, no simpliciter
offence. No residual offence and  complete acquittal.
CASE SUMMARIES
R v Clough – killed wife, C had psychotic disorder and was drug user; drug still in system
and deprived capacity – voluntary consumption; mental condition itself must have been
sufficient severity itself to ground defence w/o contributing effects of drugs/alcohol
voluntarily consumed
Cutter v R – C stabbed officer in throat, wanted to scare him only; attempted murder and
intention to do GBH insufficient; unlawful wounding instead b/c anger/rage coupled w/
intoxication couldn’t show intent held to commit murder