54 UNIT 1 | AOS 2 | CHAPTER 2: THE PRESUMTION OF INNOCENCE

2C Key concepts of criminal law

To explore how criminal proceedings are conducted in the Victorian justice system, you must first
understand critical terminology and concepts within criminal law.

Chapter 2

Key concepts in criminal law Criminal offences and offenders

2A The purposes of criminal law 2D Types of crimes

2B The presumption of innocence 2E Summary and indictable offences

2C Key concepts of criminal law 2F Participants in crime

In this lesson you will be learning about key concepts within the criminal justice system identified
in Figure 1.
Study design dot point
• Key concepts of criminal law, including:

− The elements of a crime: actus reus and mens rea

− Strict liability
− The age of criminal responsibility
− The burden of proof
− The standard of proof

Key knowledge units

The elements of crime 1.2.3.1

Actus reus 1.2.3.1.1
Mens rea 1.2.3.1.2
Strict liability 1.2.3.2
The age of criminal responsibility 1.2.3.3
The burden of proof 1.2.3.4
The standard of proof 1.2.3.5

Elements
Actus reus Mens rea
of a crime

Standard Burden
Criminal law
of proof of proof

Age of criminal
Strict liability
responsibility

Figure 1 Key concepts within criminal law

The elements of crime 1.2.3.1

OVERVIEW
There are two elements that must be proven before an accused person can be found guilty of
committing most crimes:
1. Actus reus (the wrongful act), and
2. Mens rea (the guilty mind).

                      !

"         #    $   !
 2C KEY CONCEPTS OF CRIMINAL LAW 55

Usually, both of these elements must be proven beyond reasonable doubt in order for an accused
person to be found guilty of a crime (with the exception of strict liability crimes, which you will
learn about later in this lesson).

DETAILS
Actus reus 1.2.3.1.1
‘Actus reus’ is a Latin term that translates to ‘guilty act’. In criminal law, actus reus refers
to the element of the crime where the accused person acted, or failed to act, resulting in
criminal consequences.
Mens rea 1.2.3.1.2
‘Mens rea’ is a Latin term that translates to ‘guilty mind’. In criminal law, mens rea refers to the
mental element of the crime: the state of mind which must be proven before the judge/jury can find
the accused guilty of the crime.
For many offences, the mens rea element requires one of the following mental states to be proven:
• Intention
• Recklessness
• Negligence.
Law Actus reus & mens rea elements

Culpable driving causing death
CRIMES ACT 1958
SECTION 318
(1) Any person who by the culpable driving of a motor vehicle
causes the death of another person shall be guilty of an
indictable offence and shall be liable to level 3 imprisonment
(20 years maximum) or a level 3 fine or both.
(2) For the purposes of subsection (1) a person drives a motor
vehicle culpably if he drives the motor vehicle—
(a) recklessly, that is to say, if he consciously and
unjustifiably disregards a substantial risk that the death
of another person or the infliction of grievous bodily harm
upon another person may result from his driving; or
(b) negligently, that is to say, if he fails unjustifiably and
to a gross degree to observe the standard of care
which a reasonable man would have observed in all the
circumstances of the case.
Driving the vehicle and causing death are the actus reus elements.
• This could include evidence that the impact of the vehicle on a
pedestrian or another motorist caused injuries from which they
died, and evidence the accused person was driving the vehicle at
the time.
The driving being culpable is the mens rea element. This means the
accused person was either reckless in their driving or negligent (as
defined in the legislation).
• Evidence that proves driving was culpable (that is, reckless or
negligent) might include proof the driver was speeding, was under
the influence of alcohol or was using a mobile phone while driving.
These are acts that indicate the driver:
− Knew they were likely to cause injury, but drove that way
anyway; or
− Exercised far too little care (that is, he or she was very negligent
in how they drove).

Murder
The offence of murder
is defined in the law as
voluntarily causing the death
of another person with malice
aforethought, and without
lawful excuse.
You will learn more about the
elements of murder in Lesson
3A.
Causing the death of another person (voluntarily) are the actus reus elements in this offence.
• In a criminal trial, this would include evidence the accused person hit, shot, stabbed or poisoned the
victim (for example) and the victim died as a consequence of the injury these acts caused.
Malice aforethought is the mens rea element. An accused person having ‘malice aforethought’ means either
intending to kill or cause really serious injury, or being reckless as to whether they would kill/cause really
serious injury.
Evidence of this intention or recklessness might include:
• Verbal threats of violence toward the victim.
• The act itself; if an accused person has shot or stabbed a victim multiple times, the court can conclude
that killing the victim was what the accused intended to do.
• The accused knowing that his or her conduct would be likely to kill the victim, but they did so anyway.
For example, deliberately driving a truck or car into a building or street crowded with people would
constitute ‘being reckless as to whether their conduct would kill or cause really serious injury.

Figure 2 Actus reus and mens rea in criminal offences

Actus reus Crime Mens rea

Figure 3 Actus reus and mens rea

                      !

"         #    $   !
56 UNIT 1 | AOS 2 | CHAPTER 2: THE PRESUMTION OF INNOCENCE

USEFUL TIP
A ‘lawful excuse’ is a defence to a crime. For example, a lawful excuse for the crime of intentionally
causing serious injury might be acting in self-defence.

Consider the following criminal offences:

For a better understanding of mens rea, consider the following:
The different types of mens rea required to constitute murder and manslaughter are examples
of how the intent or mental state of the accused can impact the severity of a crime. Both of these
homicide crimes (where the accused has caused the death of another person) have the same actus
reus, but they have different mens rea elements:
• To be found guilty of murder, an accused person needs to have ‘malice aforethought’: either an
intention to cause death or grievous bodily harm, or being reckless as to whether their actions
would cause death or really serious harm.
− For example, Stacey owes Tina a large amount of money which she cannot afford to pay back.
Tina demands that Stacey pay her debt and threatens to harm her if she is unable to do so.
Stacey arranges to meet with Tina at nighttime in a secluded location. Before the meeting,
she places a large kitchen knife in her bag. She also purchases a movie ticket online to ensure
that she has an alibi. Stacey and Tina meet, Tina demands her money and Stacey stabs Tina
multiple times causing her death. Stacey will likely be charged with murder because her
actions prior to the offence (setting up the meeting in a secluded place, carrying a weapon and
creating an alibi) indicate that she had an intention to kill Tina.
• Manslaughter, however, is a homicide offence where the accused person did not intend to cause
death or grievous bodily harm. A homicide will be considered manslaughter if the offender caused
death by an unlawful and dangerous act or by criminal negligence.
− For example, Bob punches George, George hits his head on the ground and dies as a result.
Bob therefore caused George’s death. Bob did not intend to kill or grievously injure George,
but did so due to an unlawful and dangerous act and can be charged with manslaughter.
− For example, Ashley is a heroin addict who fails to take any action to protect her 1-year-old
child from harm when her husband shakes their baby, and the baby dies. Ashley did not intend
the child’s death so will not be charged with murder, but demonstrated so little care that she
will be charged with manslaughter by criminal negligence.

Strict liability 1.2.3.2

OVERVIEW
Strict liability offences are offences where there is no need to prove any mental element of the
crime (mens rea) for a person to be found guilty. It is enough for the person to have committed an
act that is against the law (actus reus) for them to be found guilty and punished.
DETAILS
In making criminal laws the parliament has believed that, at times, it is justifiable to create a
criminal offence that does not require proof of intention to commit a crime. Of course, the accused
can still raise arguments to defeat the actus reus (for example, arguing the act was involuntary or
proving they did not perform the guilty act), though the prosecution will not have to prove that the
accused had a guilty mind for the accused to be found guilty of the crime.
Why do strict liability offences exist?
• Strict liability offences allow offenders to be charged for the simple act of committing the offence
and therefore aim to protect society from these types of crimes. Some conduct is dangerous
regardless of whether an offender intends it to be so (such as speeding) and therefore must
be discouraged.
• Because it is easier to convict a person of a strict liability offence, it is thought that strict liability
offences are a more effective deterrent to criminal conduct.
• The inquiry into a mens rea element would exhaust the courts and create a backlog of cases.
Strict liability offences prevent this by enabling an accused to be found guilty without mens rea
being proven.

                      !

"         #    $   !
 2C KEY CONCEPTS OF CRIMINAL LAW 57

Examples of strict liability offences include:

• Speeding or running through a red light.
• An underage person being served alcohol in a bar.
• Refusing a breath test.
• Environmental pollution by a corporation.
Below is an example of a strict liability offence:

USEFUL TIP
As of 1 July 2019 120 penalty units = $19,826.40
You will learn more about fines and penalty units in Lesson 6F.

The age of criminal responsibility 1.2.3.3

OVERVIEW
The age of criminal responsibility is the required age of an offender in order for them to be
prosecuted for a criminal offence.
DETAILS
The age of criminal responsibility in Victoria
Under 10 years
• In Victoria, a child less than 10 years cannot be charged with committing a crime.
• It is presumed that a child under the age of 10 years cannot form the intention to commit a crime.
• Therefore only those over the age of 10 are considered capable of being found to be criminally liable.

10-14 years
• There is a presumption (in other words, the law’s ‘starting point’ is) that a child between the ages
of 10 and 14 is incapable of forming the mens rea to commit a crime because they do not know the
difference between right and wrong (in the same way an adult does).
• This is known as the legal principle of doli incapax.
Doli incapax
• Doli incapax is a rebuttable presumption: it can be overturned if the prosecution can show that the
child knew, at the time of committing a crime, that his or her actions were wrong. It puts an extra
layer of evidentiary burden onto the prosecution.
• Whether a court is prepared to accept that a particular child between 10 and 14 is responsible for a
crime will depend on the child’s personal upbringing, prior history, medical reports, psychological
reports, and so on:
− This is more than just proving the mens rea of the relevant crime.
− To rebut the presumption, the prosecution has sometimes been permitted to use highly
prejudicial evidence that would ordinarily be inadmissible. For example:

                      !

"         #    $   !
78 UNIT 1 | AOS 2 | CHAPTER 3: CRIMINAL OFFENCES

3A Murder: The offence & defences

The term ‘murder’ is not specifically defined in the Crimes Act 1958 (Vic). However, derived from
common law, murder is generally defined as voluntarily causing the death of another person with
malice aforethought (intent to kill or cause harm), and without lawful excuse.
Murder is a serious indictable offence punishable by a maximum sentence of life imprisonment and is
deemed to be one of the most severe criminal offences in terms of its impact on the victim and society.
Chapter 3

Murder Assault Culpable driving

3A Murder: The offence & defences 3C Assault: The offence & defences 3E Culpable driving: The offence & defences

3B Murder: Trends & social impact 3D Assault: Trends & social impact 3F Culpable driving: Trends & social impact

In this lesson you will be learning about the elements of murder, the possible defences for murder and
the role of statute law and common law in developing these.
Study design dot point
• Two criminal offences and for each offence:

− the elements of the offence

− possible defences
− the role of statute law and common law in developing the elements of the offence and the defences
− trends and statistics in relation to the offence in Victoria and in one other jurisdiction
− the possible impact of the offence on individuals and society

Key knowledge units

The elements of offence (Murder) 1.2.7.1

Mens rea 1.2.7.1.1
Actus reus 1.2.7.1.2
Comparison with manslaughter 1.2.7.1.3
Possible defences (Murder) 1.2.7.2
Self defence 1.2.7.2.1
Duress 1.2.7.2.2
Penalties (Murder) 1.2.7.3

USEFUL TIP
The VCAA study design states that you must know the role of statute law and common law in
developing the elements of this offence and the defences.
Throughout this lesson, the elements of the offence and the defences have been described by reference
to the relevant statutory and common law principles.

The elements of the offence (Murder) 1.2.7.1

Mens rea 1.2.7.1.1
OVERVIEW
Mens rea is a Latin term that refers to the mental element of the crime: the state of mind which must
be proven to the judge/jury that the accused held, beyond reasonable doubt.

DETAILS
The specific mens rea that must be proven to find someone guilty of murder is known as
‘malice aforethought’. To establish whether an accused person demonstrated malice aforethought,
it must be proven that they either intended to kill or cause really serious injury, or were reckless as
to whether they would kill or cause really serious injury.

                      !

"         #    $   !
 3A MURDER: THE OFFENCE & DEFENCES 79

This gives rise to two of the types of murder that will be focused on in this lesson:
1. Intentional murder
2. Reckless murder
Intentional murder
Intentional murder is where the accused causes the death of another with the specific intention to
kill or cause grievous bodily harm (serious physical injury), while having no lawful excuse to do so.
Intention to kill or intention to cause grievous bodily harm is determined subjectively by looking at
the accused in isolation rather than an ordinary person in the same circumstances.
The accused is regarded to have intended the result if:
• They acted with a conscious desire to bring such a result, or
• They acted with the knowledge and foresight that the outcome was almost certain to occur as a
result of their actions.

CASE STUDY The Queen v Pavlis [2018] VSC 440

75-year-old Pavlis received a 20 year prison sentence for killing his long-time friend and business
partner Jennifer, who was 25 years younger than him. The relationship of trust between the two
was so close that Pavlis had keys to Jennifer’s home, which he used to enter her house and stab her
to death while she was making dinner.
Pavlis pleaded guilty to murder. The judge deemed Pavlis’ offence a ‘brutal murder’ and noted that
‘a substantial sentence will be imposed upon an offender who kills another with murderous intent
and without legal justification or excuse.’

Proving an intention to cause grievous bodily harm is a lower standard than an intention to kill.
The prosecution must prove that, at the time of the voluntary act or omission, the accused intended
only to cause grievous bodily harm. Provided the death resulted from the intentional act, this will
suffice as the mens rea for intentional murder.

CASE STUDY Jury finds Laa Chol’s 18yo killer guilty of her stabbing murder in Melbourne apartment tower
The accused and some friends gatecrashed a party at an apartment in Melbourne which was
occupied by Ms Chol, 19, and two other friends. Ms Chol had noticed some people going into the
bedroom where her belongings were and later realised her phone was missing. Ms Chol was angry
about this and a fight broke out with the gatecrashers. During this, the accused retrieved a knife
that was in his jacket and stabbed Ms Chol in the chest, piercing her heart.
The accused, an unnamed 18-year-old, admitted to stabbing Ms Chol, but claimed he did not intend
to kill her. The accused’s defence was that he was guilty of manslaughter, as he did not possess the
relevant mens rea required to be found guilty of murder.
The prosecution claimed that the accused had used an amount of force in his stabbing that was
sufficient to establish an intent to kill or cause really serious injury. Instead of stabbing her arm
or leg the accused had stabbed her chest, which the prosecution claimed constituted intent.
The prosecution highlighted that ‘an intention can be formed instantly and acted on spontaneously —
it can take a millisecond to form an intention to do something’.
Ultimately, the jury unnanimously found the accused guilty for the murder of Ms Chol.
Source: ABC News (2019)

Reckless murder
Reckless murder is where the accused causes the death of another while acting with recklessness as
to causing death or grievous bodily harm, while having no lawful excuse to do so.
Under Australian common law, engaging in conduct that is likely to cause death or grievous bodily
harm will still constitute murder, even if the accused did not intend to kill. Recklessness therefore
tends to be easier for the prosecution to prove, as rather than proving the intent of the accused, they
must simply show that the death or injury occurred, and that it was easily foreseeable by the accused.

                      !

"         #    $   !
80 UNIT 1 | AOS 2 | CHAPTER 3: CRIMINAL OFFENCES

CASE STUDY Director of Public Prosecutions (Vic) v Gargasoulas [2019] VSC 87

The accused, Gargasoulas, used an illicit drug (ice) and drove at high speeds in a stolen car
along a crowded footpath in efforts to evade police. As a result, Gargasoulas struck multiple
individuals and vehicles which caused several deaths and serious injuries. Following this incident,
Gargasoulas was found guilty of 6 counts of murder and 27 counts of reckless conduct
endangering life.
When sentencing Gargasoulas, the trial judge stated:
Your convictions for murder were based on what is often loosely described as ‘reckless’,
rather than intentional, killing… you knew that, by your actions, you were likely to kill, or at
least seriously injure, many innocent pedestrians. That did not faze you.

Distinguishing between intentional and reckless murder

The distinction between intentional and reckless murder lies in the degree of foresight
(or knowledge) of probability that the result is likely to occur. For example:
• If the likelihood that the accused’s conduct will cause death or grievous bodily harm is so high
that it is almost absolute, the accused is deemed to have had an intention to kill or cause grievous
bodily harm.
• If the likelihood of causing death or grievous bodily harm is slightly lower, the accused will be
deemed to have acted with a reckless state of mind.
Accused’s state of mind

Intentional murder
Reckless murder Reckless murder Intentional murder
(conduct will almost
(conduct will probably cause (conduct will probably (conduct will almost
certainly cause
grievous bodily harm) cause death) certainly cause death)
grievous bodily harm)

Weakest intent Strongest intent

Figure 1 Distinguishing between intentional and reckless murder

Actus reus 1.2.7.1.2

OVERVIEW
Actus reus is a Latin term that refers to the physical element of the crime: where the accused person
did an act, or failed to do an act, that had criminal consequences.

DETAILS
Establishing actus reus for murder
In order to establish actus reus for murder, the prosecution must show that there was:
1. A voluntary act (or omission to act where the law imposes a duty to act); and
2. Causation between that act (or omission) and the consequences of the offence; and
3. The death of a person.
Voluntary act
The conduct must have been directed by the accused’s conscious and voluntary decision.
A decision is not conscious if the accused was in a state of automatism (for example, he or she
was unconscious), had involuntary movement or if the conduct was caused by another person.
If there are multiple acts, the courts will look at the series as a whole to see if it is regarded as
one voluntary action.
Some examples of voluntary acts include (but are not limited to):
• Stabbing
• Shooting
• Punching
• Kicking
• Poisoning.

                      !

"         #    $   !
 3A MURDER: THE OFFENCE & DEFENCES 81

Causation
Causation requires a causal connection between the accused’s voluntary act (or omission) and the
consequences that result. An objective test is used to determine whether the conduct that caused
the death of the victim occurred in a continuing manner without a supervening event.

USEFUL TIP
In most murder (and manslaughter) trials, proving the accused person’s conduct caused the death of another person is usually
straightforward. If the prosecution has evidence the accused person stabbed, shot or punched the deceased, this will usually
satisfy the causation element. It is only on some occasions that causation is a more complex issue for the jury to consider.

A supervening event is an additional incident that is so radical that it breaks the chain of causation.
Where there are potential supervening events that could break causation, the accused’s act or
omission must be a ‘but-for’ cause of the victim’s death. This means that it must be proven that
but-for the first event (if it wasn’t to occur), the death would not have occurred. In these situations,
the court may use a range of tests to determine whether the causal connection has been broken.

CASE STUDY Consider the following hypothetical scenario.

Jake pulls out a knife and threatens to stab Jessica in the chest if she does not give him her wallet.
Out of fear, Jessica runs into the middle of a busy road and is hit by a car. Jessica is then rushed to
hospital to be treated for life-threatening injuries. However, while in hospital Jessica contracts a
serious disease and ultimately dies as a result of this. Is Jake responsible for the murder of Jessica
or do the superveining events (getting hit by a car and contracting a disease in hospital) break
the chain of causation? This is a difficult question with no simple answer and is a serious point of
contention in some murder cases.

Some of the most common tests used by Australian courts in determining whether a supervening
event will break the chain of causation include (but are not limited to):
• The substantial and operating cause test
• Natural consequences test
Substantial and operating cause test
This is one of the primary tests used in Australian courts to determine causation, and was
originally derived from the United Kingdom. This test requires that the accused’s act (or omission)
must substantially or significantly contribute to the death of the victim where there is a supervening
event. The same test is used for manslaughter and was developed through the case R v Evans and
Gardiner (No 2) [1976] VR 523.

CASE STUDY R v Evans and Gardiner (No.2) [1976] VR 523

Evans and Gardner stabbed their victim in the stomach during a fight in prison. The victim was
treated and survived, but fell seriously ill 11 months later. The victim sought medical treatment,
but ultimately died due to the buildup of scar tissue in his bowel, which had been damaged when he
was stabbed. The scar tissue was not diagnosed by the doctor, and was discovered after his death.
Evans and Gardiner were found guilty of manslaughter. However, both men appealed, arguing that
the poor treatment of the victim (and the failure to discover the scar tissue) during his illness had
caused the death, rather than their actions in stabbing the victim almost a year earlier.
The court referred to the ‘substantial and operating cause test’ established in R v Smith [1959] (UK)
and used this as persuasive precedent to reach the decision that the stabbing was a substantial and
operating cause of the victim’s death (despite the failure of the doctor to diagnose the scar tissue).
This case illustrates how a voluntary act (stabbing) that substantially and significantly contributes
to the death of the victim (build-up of scar tissue in his bowel) and ultimately leads to the death
of the victim can still be sufficient cause of a person’s death despite a supervening event (doctor’s
poor treatment and failure to discover the scar tissue). In this case, Evans and Gardiner exhibit the
actus reus required to be found guilty of the murder of their victim.

                      !

"         #    $   !
82 UNIT 1 | AOS 2 | CHAPTER 3: CRIMINAL OFFENCES

Natural consequences test

This is often used in cases where the victim acts out of fright or self-preservation resulting from the
accused’s conduct, which consequently results in their own death. That is, that while the victim’s
conduct caused their own death, their actions were motivated out of some form of fear on behalf of
the accused’s actions.
Implications arise around whether the conduct of the victim will destroy the causal connection
and amount to a supervening event. This is determined by whether the victim’s death was a natural
consequence of the accused’s actions or whether it went beyond what was reasonably foreseeable.
In order for the accused to be found guilty in these situations the prosecution must prove that:
• The accused caused the victim to have a well-founded fear of physical harm;
• It was reasonable for the victim to want to escape; and
• The victim selected a reasonable mode of escape.

CASE STUDY Royall v R [1991] HCA 27

The accused, Royall, was convicted for murder and appealed numerous aspects of his trial,
including the conviction. Royall had admitted to assaulting the victim after a violent argument.
The following morning, the deceased’s body was found naked in the street and her hair was
wet. Royall claimed that the victim had been in the shower when he heard a thump. The victim
had epilepsy which made the accused concerned for her health as she often fainted or became
unconscious. He proceeded to open the door with a knife which caused the deceased to jump
out of the window.
Royall denied causing her any injury in the bathroom, and denied any intent to injure or cause her
death. However, there was evidence of a forcible entry into the bathroom, along with the victim’s
blood, which was found splashed in the bathroom, a chipped glass ashtray and gouge marks along
the bathroom wall. Yet, there were no marks to indicate the victim had been struck and there were
no blood or fingerprints on the ashtray.
The main legal issue raised in this case was whether a voluntary act committed out of fear or for
self-preservation breaks the chain of causation. The High Court established a number of principles
concerning causation when determining this case.
The court held that generally, a reasonable act performed in an attempt to protect oneself (such as
attempting to escape violence) does not destroy the causal connection. However, an overreaction
can break the chain of causation. A person should also not be deemed morally culpable for harm
they did not intend and that a reasonable person is unable to foresee. This means that an accused
person cannot be found guilty of murder unless the conduct resulting in the victim’s death was
intended by the accused or a reasonable person could foresee.
Despite this, Royall’s appeal on the conviction was dismissed as it was deemed the victim had
well-founded reason to jump out of the window and no alternative means of escape.

Death
The voluntary act must cause the death of another person, not an object or animal. A foetus
(an unborn child) is not accepted to be a ‘person’ in Victoria. Therefore, the death of an unborn
child would not satisfy this component for murder cases.

CASE STUDY Death of an unborn

Maddie is pregnant when she is stabbed in the stomach, resulting in the death of her unborn baby.
This would not regarded as the death of a person for the purposes of murder in Victorian law.
It is likely, of course, the offender in this scenario would be charged with another offence under
Victorian law, such as intentionally causing serious injury (covered in Lesson 3C).

Generally, death is the easiest aspect to prove. However, sometimes the point of death is not always
as obvious as it may seem. Many implications have arisen around whether a body that has been kept
alive by artificial means is a human being capable of being killed. However, in Victoria (along with
New South Wales and South Australia), life as a human being finishes at the point of irreversible
ending of brain function or blood circulation.

                      !

"         #    $   !
 3A MURDER: THE OFFENCE & DEFENCES 83

Comparison with manslaughter 1.2.7.1.3

OVERVIEW
Manslaughter refers to unlawfully causing the death of another person without malice
aforethought. Murder and manslaughter are very distinct, but some aspects of these criminal
offences can overlap.

DETAILS
Murder and manslaughter are similar in some respects as both are homicide offences which involve
the killing of another human being without a lawful excuse. However, the two are also very different
in a number of ways, especially in terms of their mens rea components.
Table 1 Comparison between murder and manslaughter

Similarities Differences

Actus reus. Murder and manslaughter both share the same Mens rea. Murder requires some form of intent or
actus reus components: a voluntary act, causation and death. recklessness of causing death or grievous bodily harm.
Criminal offence. Murder and manslaughter are both serious Manslaughter involves gross negligence or causing death
indictable offences. whilst performing some unlawful and dangerous act.

Unlawful homicide. Murder and manslaughter are branches
of unlawful homicide.
Penalties. The penalties for murder and manslaughter
are outlined by the Crimes Act 1958 (Vic). Murder and
manslaughter’s maximum penalties inolve imprisonment.
Types. The types of murder include intentional murder
and reckless murder. The types of manslaughter include
manslaughter by an unlawful and dangerous act and
manslaughter by criminal negligence.
Penalties. The maximum penalty for murder is life
imprisonment as outlined by s. 3 of the Crimes Act 1958
(Vic). The maximum penalty for manslaughter is 20 years
imprisonment as outlined by s. 5 of the Crimes Act 1958 (Vic).
Objective and subjective tests. The test for murder is
subjective, determined by whether the accused themself
understood that death or grievous bodily harm would
likely result from their actions. The test for manslaughter
is objective, determined by how a reasonable person in the
accused’s position would have acted.

Possible defences (Murder) 1.2.7.2

Self defence 1.2.7.2.1
OVERVIEW
Self-defence is the legal recognition that a person may lawfully use force or the threat of force
in order to prevent unlawful harm against themselves or another. Self-defence can be raised in
response to a charge of murder where the accused believed that their conduct was necessary to
protect themself or another person from death or really serious injury at the time of the actus reus.

DETAILS
Self-defence is a complete defence. This means that a person will not be found guilty of an offence
if they can prove that they were acting in self defence. The defence will only need to be raised once
the elements of an offence (mens rea and actus reus) have been successfully established by
the prosecution.
The accused has the burden of proof to provide evidence of their acting in a manner attempting
to protect themselves or another person. If the accused proves this, the prosecution must then
establish beyond a reasonable doubt that this defence is not applicable in the circumstances.

                      !

"         #    $   !
102 UNIT 1 | AOS 2 | CHAPTER 3: CRIMINAL OFFENCES

3C Assault: The offence & defences

Assault is the application or threat of force against another person without any lawful excuse.
A diverse variety of acts can constitute assault and a wide range of penalties may be imposed.
Chapter 3

Murder Assault Culpable driving

3A Murder: The offence & defences 3C Assault: The offence & defencess 3E Culpable driving: The offence & defences

3B Murder: Trends & social impact 3D Assault: Trends & social impact 3F Culpable driving: Trends & social impact

Study design dot point

• Two criminal offences and for each offence:

− elements of the offence

− possible defences
− the role of statute law and common law in developing the elements of the offence and the defences
− trends and statistics in relation to the offence in Victoria and in one other jurisdiction
− the possible impact of the offence on individuals and society

Key knowledge units

Elements of offence (Assault) 1.2.7.6

Statutory assault 1.2.7.6.1
Common law assault 1.2.7.6.2
Possible defences (Assault) 1.2.7.7
Self defence 1.2.7.7.1
Duress 1.2.7.7.2
Penalties (Assault) 1.2.7.8

USEFUL TIP
The VCAA study design states that you must know the role of statute law and common law in
developing the elements of this offence and the defences.
Throughout this lesson, the elements of the offence and the defences have been described by reference
to the relevant statutory and common law principles.

Elements of the offence (Assault) 1.2.7.6

Statutory assault 1.2.7.6.1
OVERVIEW
The different categories of statutory assault are all specifically stated in the Crimes Act 1958 (Vic).
These include:
• causing serious injury intentionally in circumstances of gross violence (s. 15A)
• causing serious injury recklessly in circumstances of gross violence (s. 15B)
• causing serious injury intentionally (s. 16)
• causing serious injury recklessly (s. 17)
• causing injury intentionally or recklessly (s. 18)
• conduct endangering life (s. 22)
• conduct endangering persons (s. 23)
• negligently causing serious injury (s. 24)
• assaulting or threatening to assault an emergency worker on duty, a youth justice custodial worker
on duty, or a custodial officer on duty (s. 31)

                      !

"         #    $   !
 3C ASSAULT: THE OFFENCE & DEFENCES 103

DETAILS
The offences listed above are indictable offences (though some – such as causing serious injury
recklessly – are indictable offences that may be tried summarily).
The various types of statutory assault all include four similar elements:
1. Victim suffered an injury (or serious injury).
2. The accused caused the victim’s injury.
3. The accused intended to cause injury or was reckless/negligent as to causing the injury.
4. Accused acted without lawful excuse.
Each of these elements have slightly different requirements depending on the category of assault
that a person is charged with.
Some of the branches of assault also have special requirements that must be proven in addition to
these more general requirements listed above.
Victim suffered an injury
A successful prosecution of an assault offence requires the victim to have suffered an injury.
However, the type of injury that must be suffered will vary depending upon the specific offence.
The two types of injury that can be suffered are:
• Injury; or
• Serious injury.
An injury can be a physical injury, or harm to an individual’s mental health. This may be temporary
or permanent.

A serious injury is an injury (including the cumulative effect of more than one injury) that either:
• Endangers life;
• Is substantial and protracted; or
• Involves the destruction, other than in the course of a medical procedure, of the foetus of a
pregnant woman.

                      !

"         #    $   !
104 UNIT 1 | AOS 2 | CHAPTER 3: CRIMINAL OFFENCES

Table 1 The type of injury required for each branch of assault in the Crimes Act 1958 (Vic)

Offences that require an injury Offences that require a serious injury

• Causing injury intentionally or recklessly (s. 18)
• Assaulting or threatening to assault an emergency worker
on duty, a youth justice custodial worker on duty, or a
custodial officer on duty (s. 31)
• Causing serious injury intentionally in circumstances of
gross violence (s. 15A)
• Causing serious injury recklessly in circumstances of
gross violence (s. 15B)
• Causing serious injury intentionally (s. 16)
• Causing serious injury recklessly (s. 17)
• Negligently causing serious injury (s. 24)

The accused caused the victim’s injury

This is the actus reus component for statutory assault that requires the accused to be responsible for
causing the victim’s injury (or serious injury). The term ‘causing’ is very broad and includes:
• Direct injury (such as physical contact).
• Indirect conduct without any direct application of force (such as psychiatric illness).
The accused intended to cause injury or was reckless/negligent as to causing the injury
This is the mens rea component of statutory assault. The prosecution must prove an accused person
• Intended to cause injury; or
• Acted in a manner that was reckless or negligent.
The accused does not need to have intended to cause the specific injury the victim obtained,
just intended to cause (or acted recklessly in causing) an injury.
The mens rea element of an accused being ‘reckless’ refers to an accused person who:
1. Knew their actions would probably result in the victim being seriously injured, and
2. Decided to go ahead anyway.
In cases where an accused person is prosecuted for intentionally causing serious injury, a jury may
decide the accused:
• Did not intend to cause serious injury (and they will be found not guilty of the offence under s. 16), but
• Knew their actions would likely cause serious injury and performed these acts anyway (and instead
be found guilty of recklessly causing serious injury under s. 17).

CASE STUDY R v Nguyen and Deing [2014] VSC 203

The victim was returning to his car with his girlfriend after shopping when a confrontation with
another driver occurred. One of the accused then kicked the victim’s car, causing him to exit
his car and tell the offenders not to kick his car. This prompted one of the accused to pin the
victim to the ground in a headlock while the second accused kicked and punched him and a third
accused kicked, punched and stabbed the victim.
As a result of this, the victim suffered multiple stab wounds in the back and chest and was
required to spend a week in the hospital. All three individuals pleaded guilty to intentionally
causing serious injury.

CASE STUDY Director of Public Prosecutions (DPP) v Russell (2014) 44 VR 471

Russell was drinking with a group of friends when a fight erupted with another group. During the
course of this fight, Russell punched the victim in the jaw, causing them to fall on the road.
This contact caused the victim to suffer a serious fracture of the jaw. Russell then went to the
police voluntarily and provided an account of the incident.
Following the incident, Russell entered a guilty plea for a charge of recklessly causing serious
injury – he acknowledged that when he punched the victim in the face he was aware they would
probably suffer a serious injury.

                      !

"         #    $   !
 3C ASSAULT: THE OFFENCE & DEFENCES 105

Without lawful excuse

This element of statutory assault requires the accused to have acted without lawful excuse
(such as the consent of the injured person). There are some situations where the victim may
consent to injury (or serious injury), which includes sporting events and medical procedures.
Sporting events
Those participating in many sports (such as martial arts) consent to the possibility of injury
being inflicted. When does an injury exceed what a person has consented to and become unlawful?
When an injury is suffered during a sporting contest, the accused will be deemed to have acted
without consent if:
• They inflict injuries that are not within the reasonable rules of the game.
• The injuries are committed in anger and hostility.
• The injuries exceed what would be reasonably contemplated by participants in that sport.

CASE STUDY Pallante v Stadiums Pty Ltd [1976] VR 331

The plaintiff, Pallante, had entered a boxing match and suffered severe injuries to his eyes during
the fight. He then pursued a number of assault cases including one against the stadium.
Pallante argued that boxing is focused on conquering an opponent without regard to the physical
impact this may have on the victim, and this should amount to assault. The stadium claimed that
the fight was illegal (as it was a prize fight), and the plaintiff could not commence proceedings
based on an unlawful action.
The judge rejected the plaintiff’s argument and instead stated that the test to determine whether
the conduct exceeded what is reasonably contemplated by participants in boxing is whether the
contact was intended to cause serious harm. In this case, Pallante could not establish this.
The judge also held that ‘an exercise in boxing skills should not be seen as a criminal act.’
Note: Pallante pursued the cases in a civil trial, but the same principles have been applied in
criminal law.

Medical procedures
Many medical procedures can be construed as an ‘injury’. Consider an incision by a surgeon with a
scalpel or an intravenous drip being inserted through the skin into a blood vessel.
Generally, surgery cannot occur unless the patient consents to it. In these situations, a patient is
unable to pursue legal action for an assault, despite the other elements being satisfied, as they
consented to the procedure.
Special requirements
Some specific statutory assaults require additional elements to be satisfied in addition to the general
elements described above. These are:
• Gross violence circumstances (ss. 15A and 15B).
• An assault of an emergency worker on duty, youth justice custodial worker on duty or custodial
officer on duty (s. 31).
Gross violence circumstances
Sections 15A and 15B require that the assault occurs in circumstances of gross violence. The Crimes
Act 1958 (Vic) defines circumstances of gross violence as situations where:
• The offender planned in advance to engage in conduct and at the time of planning:
− The offender intended to cause serious injury;
− The offender was reckless to causing serious injury; or
− A reasonable person would have foreseen that the conduct was likely to cause serious injury.
• The offender was accompanied by two or more individuals to cause serious injury.
• The offender entered into an agreement, arrangement or understanding with two or more
individuals to cause a serious injury.
• The offender planned to have an offensive weapon, firearm or imitation firearm and used the
offensive weapon.

                      !

"         #    $   !
106 UNIT 1 | AOS 2 | CHAPTER 3: CRIMINAL OFFENCES

• The offender continued to cause injury after the victim was incapacitated (that is, unable to
defend themself ).
• The offender caused serious injury while the victim was incapacitated.
Persons convicted of intentionally causing serious injury in circumstances of gross violence must
serve a prison term with a non-parole period of at least 4 years (unless special circumstances apply).

CASE STUDY DPP v Whittle [2017] VCC 2017

Whittle pleaded guilty to intentionally causing serious injury in circumstances of gross violence.
He struck the victim, who hit his head on a concrete driveway and lost consciousness.
Whittle then continued to kick and stomp on the victim’s head. He walked away from the victim
following a brief discussion with a witness to the assault, then returned to the unconscious victim
and continued to stomp on his head.
Whittle was imprisoned for five years. A non-parole period of 3 years and 4 months was imposed
(rather than four years, as Whittle’s culpability was reduced slightly due to an acquired
brain injury)

Emergency worker on duty, youth justice custodial worker on duty or custodial officer on duty
Section 31 applies when the accused assaulted or threatened to assault an emergency worker on
duty, a youth justice custodial worker on duty, or a custodial officer on duty. This is different to the
other branches of assault as it outlines who the offence must be committed against.
Common law assault 1.2.7.6.2
OVERVIEW
Common law assault refers to when the accused makes unlawful contact with another person or
threatens to do so. This can include any act which intentionally or recklessly causes another to fear
immediate and unlawful violence.

DETAILS
There are two categories of common law assault which equate to two separate offences:
1. Common law contact assault
2. Common law apprehension assault.
Common law contact assault
Common law contact assault refers to the unlawful application of force or contact to the victim,
without their consent.
Elements:
1. Accused applied force to the victim;
2. The application of force/contact was without consent; and
3. The application of force/contact was intentional or reckless.
Accused applied force to the victim
This is the actus reus element of common law contact assault which requires there is actual contact
or application of force to the victim. For common law contact assault, there must be actual contact
with the victim, an omission will not suffice.
There is no requirement for an injury to result from common law contact assault – there must only
be direct contact, which can be satisfied with the slightest degree of contact or touching.
However, if an injury is sustained, police may pursue one of the branches of statutory assault under
the Crimes Act 1958 (Vic).
Types of applied force include:
• Contact aimed directly at the victim:
− Body to body contact (such as punching the victim).
− Contact through a weapon or other object (such as hitting the victim with a bat).
• Contact aimed at an object that is supporting the victim:
− For example, knocking over a ladder the victim is standing on.

                      !

"         #    $   !
 3C ASSAULT: THE OFFENCE & DEFENCES 107

The application of force/contact was without consent

The contact must be applied to the victim without their consent. If the victim consents to the force
or contact, a claim in common law assault will be unsuccessful. Contacts that are part of everyday
life are not actionable, as members of the community are presumed to have implied consent to
contacts which are a necessary consequence of everyday life. However, an individual can only
consent to a certain level of force/contact.
The application of force/contact was intentional or reckless
This is the mens rea component of common law contact assault and it requires an intention for the
accused to commit an assault (apply force to another or place another in apprehension of imminent
application of force), or that they were reckless in doing so.
Common law apprehension assault
Common law apprehension assault occurs where the victim fears imminent unlawful application of
force or contact to their body without consent. This can be prosecuted even where the accused had
no intention of carrying out the threat.
Elements:
1. A threat is made to the victim; and
2. The threat is made intentionally or recklessly, causing the victim to fear imminent unlawful contact.
A threat is made to the victim
This is the actus reus component of common law apprehension assault and requires the accused to
have made a threat to the victim. The threat must be one of force if the victim fails to comply with a
stated condition or fails to act in a certain way.
Some examples of threats include:
• ‘If you make any movement I will punch you.’
• ‘Your phone or your life.’
The threat is made intentionally or recklessly which causes the victim to apprehend imminent
unlawful contact
This is the mens rea component of common law apprehension assault; it requires the accused to
have intended or acted recklessly to cause the victim to fear harm immediately after the threat.
It is irrelevant whether or not the accused had any intention of carrying out the threat, or even
whether they had the ability to do so. It is enough that the victim simply believed that the accused
had the apparent ability to carry out the threat.
The victim does not need to sustain an injury or any contact as a result of the threat, the threat alone
can be sufficient to cause the victim to apprehend imminent unlawful contact.
However, there is a requirement that the fear is reasonable in the circumstances. In circumstances
where the accused is aware that the victim is very timid, apprehension does not need to
be reasonable.
Apprehension means that the victim must be aware that contact is likely to occur directly after the
threat. If the threat does not cause any fear in the victim a claim will be unsuccessful.

CASE STUDY Mercer (a Pseudonym) v R [2015] VSCA 257

The accused pleaded guilty to a number of criminal offences against his domestic partner,
including five counts of common law assault.
The conduct amounting to common law assault was:
1. Slapping the victim in the face repeatedly.
2. Grabbing and throwing the victim by her hair.
3. Gesturing to the victim with a wire coat hanger and threatening to harm her, followed by
whipping the coat hanger across the victim’s hand.
4. Punching the victim in the stomach.
5. Pushing into the victim’s chest to prevent her from breathing.
This case illustrates a combination of common law contact assault and common law
apprehension assault (in bold).

                      !

"         #    $   !
108 UNIT 1 | AOS 2 | CHAPTER 3: CRIMINAL OFFENCES

Table 2 Distinguishing between common law contact assault and common law apprehension assault

Similarities Differences

Common law assault. Common law contact assault and Actus reus. Common law contact assault requires direct
common law apprehension assault are both branches of contact to the victim whereas common law apprehension
common law assault. assault does not – a threat alone will suffice.
Mens rea. Common law contact assault and common law
apprehension assault both require a degree of intention or
recklessness when carrying out the actus reus component.

Table 3 Distinguishing between statutory assault and common law assault

Similarities Differences

Mens rea. Statutory assaults and common law assault both Indictable or summary offences. The statutory assaults
require a degree of intention or recklessness when carrying stated above are indictable offences punishable by 5 to 20
out the actus reus component. years’ imprisonment. Common law assault may be prosecuted
Penalties. The penalties for assault are stated in legislation: in the:

• Each of the statutory assault offences described • Magistrates’ Court as a summary offence, leading to
above may result in imprisonment under the Crimes a fine, community correction order or a short term of
Act 1958 (Vic). imprisonment; or

• Common law assault is punishable by fine or 3 months’
imprisonment under s. 23 of the Summary Offences Act
1966 (Vic) (if prosecuted in the Magistrates’ Court).
• County Court as an indictable offence (if a more serious
incident), leading to a community correction order or a
term of imprisonment.
Injury. Statutory assaults require injury or serious injury to
have occurred. Common law assault does not require any
injury to have occurred, only unlawful contact or a fear of
unlawful contact.
Legal basis. Each branch of statutory assault is defined by the
Crimes Act 1958 (Vic) whereas common law assault has been
derived through judicial precedent rather than legislation.

Possible defences 1.2.7.7

Self-defence 1.2.7.7.1
OVERVIEW
Self-defence is the legal recognition that a person may lawfully use force or the threat of force in
order to prevent unlawful harm against themselves or another.

DETAILS
Self-defence is a complete defence, meaning a person will not be found guilty of an offence if they
can prove that they were acting in self defence.
The defence will only need to be raised once the elements of an offence have been established by the
prosecution – that is, that a sufficient case has been established against the accused.
The accused has the burden of providing evidence that their conduct was an attempt to protect
themselves or another person. If the accused proves this, the prosecution must then establish that
this defence is not applicable in the circumstances.

                      !

"         #    $   !