1. society
2. crime
3. personal offense
4. homicide


Monash Law Students’ Society
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STUDENT TUTORIAL
PROGRAM 2015
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Criminal Law
SKETCH NOTES
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NOTES
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Tutor name: Ayesha Singh
Studied Criminal Law & Procedure A: Semester 1 2014
Cases included that are not in the 2015 reading guide:
Cases in the Crim A 2015 reading guide not included:
DPP v Wood
R v Mills
R v Verdins
R v Buckley
R v Vo
Boulton
Clements
Fitzgerald v The Queen
Ugle v The Queen
Rozsa v Samuels
Pallante v Stadiums Pty Ltd
Ryan v R
R v Butcher
R v Galas
R v Lamb
R v Lavender
R v Dudley and Stephens
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Cases in the 2015 Crim 1 Unit guide not included:
Ugle v The Queen
Scott v Shepherd
Rixon v Star City
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Williams v Milotin
McHale v Watson
Venning v Chin Chin
Rosza v Samuels
Barton v Armstrong
McNamara v Duncan
Fontin v Katapodis
Pallante v Stadiums Pty Ltd
Question of Law
R v Butcher
R v Galas
R v Lamb
R v Lavender
Osland v R
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COMMON AR ELEMENTS
Voluntary and willed act
• There is a presumption that all persons have the capacity to control their
actions, and that their actions are willed (Falconer)
• The defendant bears the evidential onus of rebutting this presumption
o Examples of involuntary states: spasm (DPP v Farquharson), reflex,
sleepwalking, gross intoxication
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Causation
• The prosecution must show beyond reasonable doubt that the defendant’s
act caused the outcome (Hallett)
• There are three causation tests:
o Was the defendant’s act a substantial and operating cause at the time
of the offence? (Hallett)
o Did the defendant’s actions make it a natural consequence that the
victim sought to escape? (Royall)
o Was the outcome foreseen or a ‘reasonably foreseeable consequence’
of the defendant’s actions? (Royall)
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NAIs
• The defendant could argue that there was a break in the causal chain
• Examples:
o An act of god (R v Hallett)
o An act of a third party (Pagett; R v Evans & Gardiner; R v Smith; R v
Jordan; R v Malcharek & Steel)
o An act of the victim (Stephenson v State; Royall; R v Blaue)
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COMMON LAW ASSAULT
CL assault: non-physical interference
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AR
1. A voluntary & positive act (or words)
• An omission is not sufficient
o NB: silence over the phone has been found to be sufficient (R v
Ireland)
• Was there a conditional threat?
o Generally, negative words negate an intention that the act will be
committed (Tuberville)
o However, if the threat exceeds legitimate self-defence (i.e. the
threat is disproportionate), it is still a positive act
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2. Apprehension of imminent and unlawful violence (Zanker)
• Continuing peril has been held to be imminent (Zanker)
• Threats made by phone call have contrasting judgments (compare Knight
and Ireland)
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3. The apprehension causes fear in the victim (Ryan v Kuhl)
• The victim must know of the accused’s act to apprehend it (Pemble)
• The victim needs to have shown fear (Ryan v Kuhl)
o Contrast: Brady v Schatzel (QLD)
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4. Causation
• See common AR elements
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MR
• Intentional: defendant must have intended to create in the mind of the
victim an apprehension of immediate and unlawful physical contact; OR
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• Reckless: defendant must have foreseen the possibility of the creation in the
mind of the victim of apprehension of immediate and unlawful physical
contact (R v Coleman)
o Reckless (alternative test): Defendant foresaw the probability that
unlawful contact would occur but carried on regardless (R v
Campbell)
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Contemporaneity
• Both AR and MR are present at the same time (Fagan; Thabo)
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CL assault: physical interference
AR
1. A positive and voluntary act (Fagan)
• The direct application of physical interference against the victim
o Mere touching is sufficient (Collins v Wilcock)
o Interference by an object is sufficient (Fagan)
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MR
• Intentional: defendant must have intended to cause the unlawful contact;
OR
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• Reckless: defendant must have foreseen the possibility of unlawful contact
(R v Coleman)
o Reckless (alternative test): defendant foresaw the probability that
unlawful contact would occur but carried on regardless (R v
Campbell)
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Contemporaneity
• Both AR and MR are present at the same time (Fagan; Thabo)
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CL assault: sentencing
• S 23 Summary Offences Act – 15 penalty units or imprisonment for three
months
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CL assault: aggravating factors
• S 31(a): a person who assaults or threatens to assault another person with
intent to commit an indictable offence is guilty of an indictable offence
(level 6 imprisonment)
• S 40: a person must not assault or threaten to assault another person with
intent to rape (level 5 imprisonment)
• S 31(b)(i): a person who assaults or threatens to assault, resists or
intentionally obstructs a member of the police force in the due execution of
duty, knowing that the member is a member, is guilty of an indictable
offence (level 6 imprisonment)
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STATUTORY ASSAULT
Gross Violence
S 15A, 15B
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Injury
S16, 17, 24, 18
Definiti
on
S 15A: A person must not without
lawful excuse, intentionally cause
serious injury to another person in
circumstances of gross violence.
NOTE: if jury finds not guilty of S
15A, the jury may find A guilty of S
16 (S 422)
S 15B: A person must not, without
lawful excuse, recklessly cause
serious injury to another person in
circumstances of gross violence.
NOTE: if jury finds not guilty of S
15B, the jury may find A guilty of S
17
(S 422)
S 16: A person who, without
lawful excuse, intentionally
causes serious injury to another
person is guilty of an indictable
offence
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S 17: A person who, without
lawful excuse, recklessly causes
serious injury to another person
is guilty of an indictable offence
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S 24: A person who by
negligently doing or omitting to
do an act causes serious injury
to another person is guilty of an
indictable offence
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See S 15 for definition of serious
injury
Info
AR
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What is GV: S 15A (2)
a) Accused planned to engage in
conduct & at time of planning,
intended/reckless/negligent as to
serious injury
b) Accused in company with 2 or
more other persons caused the
serious injury
c) Accused participated in a joint
criminal enterprise with two or
more other persons in causing the
serious injury
d) Accused planned to have and
use an offensive weapon, firearm
or imitation firearm & used it to
cause the serious injury
e) Accused continued to cause
injury to the other person after
the other person was incapacitated
f) Accused caused the serious
injury to the other person while
the other person was incapacitated
S 18: A person who, without
lawful excuse, intentionally or
recklessly causes injury to
another person is guilty of an
indictable offence
What is serious injury: S 15
a)An injury (including the
cumulative effect of more than
one injury) that –
i) Endangers life; or
ii) Is substantial and protracted;
or
b) the destruction, other than in
the course of a medical
procedure, of the foetus of a
pregnant woman, whether or not
the woman suffers any other
harm
What is injury: S 15
a)Physical injury; or
b)Harm to mental healthwhether temporary or permanent
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1. Voluntary act (see common AR elements)
2. Causation (see common AR elements)
MR
Intention (ss 15A, 16, 18)
▪ An intention to cause a serious injury/injury, although not the
specific serious/injury, would be sufficient
o However, an intention to merely perform the act is not
sufficient (R v Westaway)
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Recklessness (SS 5B, 17, 18)
• Defendant was aware that serious injury/injury was probable
o It is insufficient for D to have been aware that serious
injury/injury was merely ‘possible’ or ‘might’ result (R v
Campbell)
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Negligence (S 24)
Objective test: D’s actions have grossly fallen short of the standard of
care which a reasonable person would have exercised, and involved
such a high risk that it merits criminal punishment (Nydam v R).
Contem
poranei
ty
AR and MR elements must be present at the same time (Fagan; Thabo)
Sentenc S 10 Sentencing Act: In sentencing
ing
an offender for an offence against
S15A or S15B, a court must impose
a term of imprisonment and fix
under S 11 a non-parole period of
not less than 4 years unless the
court finds under S 10A that a
special reason exists
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S 17: Level 4 imprisonment (15
years maximum)
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S 24: Level 5 imprisonment (10
years maximum)
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S 18:
Intentionally – Level 5
imprisonment (10 years max)
Recklessly – Level 6 imprisonment
(5 years max)
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Threats
S 20, 21
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S 16: Level 3 imprisonment (20
years maximum)
Definition
S 20: A person who, without lawful excuse, makes to another
person a threat to kill that other person or any other person - a) intending that that other person would fear the threat would
be carried out; or
b) being reckless as to whether or not that other person would
fear the threat would be carried out
- is guilty of an indictable offence
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S 21:
A person who, without lawful excuse, makes to another person a
threat to inflict serious injury on that other person or any other –
a)intending that that other person would fear the threat would
be carried out; or
b) being reckless as to whether or not that other person would
fear the threat would be carried out
- is guilty of an indictable offence
AR
• Has a threat been made? (voluntary act)
o A threat can be made by words or conduct or both
o There is no need for apprehension/fear
MR
1. Intend to make the threat (no intention needed to carry
out the threat), AND
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Intention
• An intention for V to fear the threat to kill/cause SI would be
carried out is sufficient
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Recklessness
• D foresaw that V would probably fear that the threat to
kill/cause SI would be carried out
Contemporan
eity
AR and MR elements must be present at the same time (Fagan;
Thabo)
Sentencing
S 20: Level 5 imprisonment (10 years maximum)
S 21: Level 6 imprisonment (5 years maximum)
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Female Genital Mutilation (FGM)
S 32
Definition
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S.32: 1) A person must not perform FGM on a child
2) A person must not perform on a person other than a child any
type of FGM
AR
• Performing FGM
MR
• Intentionally
Contemporan
eity
AR and MR elements must be present at the same time (Fagan;
Thabo)
Sentencing
Level 4 imprisonment (15 years maximum)
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Infection with very serious disease
19A
Definition
S 19A: Any person who, without lawful excuse, intentionally
causes another person to be infected with a very serious disease is
guilty of an indictable offence
Info
• Very serious disease = HIV (S 3(1) Health and Wellbeing Act
2008; s 19A(2) Crimes Act)
AR
1. Voluntary act
2. Causation (the D must have caused the V’s HIV infection)
o If you cannot prove that the D caused the infection, go
to endangerment (SS 22 and 23)
MR
• Intention to cause VSD
Contemporan AR and MR elements present at the same time (Thabo; Fagan)
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Sentencing
Level 2 imprisonment (25 years maximum)
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Endangerment
22, 23
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Definition
S 22: A person who, without lawful excuse, recklessly engages in
conduct that places or may place another person in danger of
death is guilty of an indictable offence
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S 23: A person who, without lawful excuse, recklessly engages in
conduct that places or may place another person in danger of
serious injury is guilty of an indictable offence
AR
1. Voluntary act
• Act must have placed victim in situation of risk of
death/serious injury
• Future conduct that MAY have given rise to a risk
(i.e. hypothetical risks) are insufficient to make out
placing victim in a situation of risk (R v Abdul-Rasool)
MR
• Reckless: D foresaw the consequences as a probability of
actions; OR
• A reasonable person would have realized that the actions
placed another person in danger (i.e. negligence)
Contemporan AR and MR elements present at the same time (Fagan; Thabo)
eity
Sentencing
S 22: Level 5 imprisonment (10 years maximum)
S 23: Level 6 imprisonment (5 years maximum)
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Stalking
21A
Definition
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S 21A: A person must not stalk another person
Info
What is stalking?
(2) A person stalks another person if the offender engages in a
course of conduct which includes any of the following –
a) following the victim or any other person
b) contacting the victim or any other person by post, telephone,
fax, text message, e-mail or other electronic communication or by
any other means whatsoever
c) entering or loitering outside or near the victim’s place of
residence or of business or any other place frequented by the
victim
d) interfering with property in the victim’s possession
e) giving offensive material to the victim or any other person or
leaving it where it will be found by, given to or brought to the
attention of, the victim
f) keeping the victim under surveillance
g) acting in any other way that could reasonably be expected –
i. to cause physical or mental harm to the victim, including selfharm; or
ii. to arouse apprehension or fear in the victim for their own
safety or that of any other person -
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EXCEPTION
4) This section does not apply to conduct engaged in by a person
performing official duties for the purpose of –
a) the enforcement of the criminal law
b) the administration of any act
c) the enforcement of a law imposing a pecuniary penalty
d) the execution of a warrant
e) the protection of the public revenue
- that, but for this subsection, would constitute an offence
against subsection 1
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JURISDICTION
7) It is immaterial that the victim was outside Victoria at the time
at which some or all of the course of conduct constituting an
offence, so long as that conduct occurred in Victoria (also see DPP
v Sutcliffe)
AR
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1.Voluntary act: engaging in a prescribed course of conduct (not a
single offence)
2.Causation: the D’s conduct must have caused physical or mental
harm to the V, or aroused fear in the V for their own safety or
that of another person
MR
• The A must have had the intention of causing physical or
mental harm to the V, or arousing fear in the V for their own
safety or that of another person
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3) An offender also has intention if:
a) the offender knows that engaging in a course of conduct of that
kind would be likely to cause such harm or arouse such
apprehension or fear
b) objective test (imputed intention): the offender in all the
particular circumstances ought to have understood that engaging
in a course of conduct of that kind would be likely to cause such
harm or arouse such apprehension or fear and it actually did have
that result
Contemporan AR and MR occur at the same time (Fagan; Thabo)
eity
Defence
4A) It is a defence to the charge for the A to prove that the course
of the conduct was engaged in without malice –
a)In the normal course of a lawful business, trade, profession or
enterprise
b) for the purpose of an industrial dispute
c) for the purpose of engaging in political activities or discussion
or communicating with respect to public affairs
Sentencing
Level 5 imprisonment (10 years maximum)
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• Victim is permitted to obtain an intervention order if
someone has been stalking them and is likely to continue to
do so
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MURDER
AR
1. Kills (voluntary act & death)
• S 41 Human Tissue Act
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2. Causation
• The act needs to be a cause of death, not the cause of death
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3. Human being
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• The defendant must have killed another human being (Hutty)
o Life begins when there is a separate entity from the mother, even if
attached by the umbilical cord. A foetus is not a human being (Hutty).
o If this AR element is not satisfied, go to S 65 (abortion performed by
unqualified person)
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MR
1. Intent to kill
• Wilful blindness is not intent (R v Crabbe)
• Subjective test to find intention (Pemble)
o There is no presumption that the defendant intended the natural and
probable consequences of their actions
• The exact person need not have been intended (doctrine of transferred
malice)
o There just needs to have been an intent to kill someone (R v Saunders
and Archer); or an intent to kill anyone, but no one in particular (R v
Martin)
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2. Intent to cause GBH
• GBH = really serious bodily injury (DPP v Smith)
• Serious injury includes (Meyers):
o Stabbing
o Punching
o Victim being rendered unconscious
• Holding a pillow over the victim’s head has been held to be GBH (Rhodes)
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3. Recklessness to kill
• The defendant probably foresaw that they would cause death (R v Crabbe)
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• The chance of death must have been real and not remote (Boughey)
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4. Recklessness to cause GBH
• The defendant probably foresaw that they would cause GBH (R v Crabbe)
• The chance of GBH must have been real and not remote (Boughey)
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5. Constructive murder (2 types)
• Constructive murder: violent offence
o Act of violence that unintentionally causes death (not limited to
physical violence); AND
o In furtherance of a crime of violence
• Constructive murder: resisting arrest
o Killing a person by the intentional use of force to prevent an arrest is
murder (R v Ryan & Walker)
Contemporaneity
AR and MR occur at the same time (Fagan; Thabo)
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Sentencing
• S 3 – life imprisonment
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VOLUNTARY MANSLAUGHTER
• The defendant possesses the AR & MR for murder, but liability is reduced to
manslaughter because of a mitigating factor
• Mitigating factors:
o Survivor of suicide pact (S 6B)
o Infanticide (S 6)
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Sentencing
• S 5 – level 3 imprisonment
• S 5A (child homicide) – level 3 imprisonment
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INVOLUNTARY MANSLAUGHTER
• The defendant possesses the AR, but not the MR for murder, but is still
recognised by the law as sufficiently culpable and responsible for the death
• Includes UDA manslaughter and negligent manslaughter (by act and
omission)
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UNLAWFUL AND DANGEROUS ACT MANSLAUGHTER (UDA MANSLAUGHTER)
AR
• Same as for murder
• Also must have an unlawful and dangerous act
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MR
1. Defendant intended to do the act (did not need to intend that death would
result)
2. Unlawful: objective test
3. Dangerous (objective test): whether a reasonable person performing the
same act as the accused would have realised that they were exposing
another person to an appreciable risk of serious injury (Wilson v R)
o NB: defendant cannot raise intoxication as a defence, as the
reasonable person is not intoxicated (S 9AJ)
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Contemporaneity
AR and MR occur at the same time (Fagan; Thabo)
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Defences
• Victim consented to the UDA
o NB: consent may not be valid if the level of risk of harm is too high (R
v Stein)
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Sentencing
• S 5 – level 3 imprisonment
• S 5A (child homicide) – level 3 imprisonment
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NEGLIGENT MANSLAUGHTER BY ACT
AR
• Same as for murder
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MR
• What was the negligent act?
• What would a reasonable person have done?
• Was there a gross falling short of the standard of care? (Nydam’s test)
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Contemporaneity
AR and MR occur at the same time (Fagan; Thabo)
Sentencing
• S 5 – level 3 imprisonment
• S 5A (child homicide) – level 3 imprisonment
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NEGLIGENT MANSLAUGHTER BY OMISSION
1. A duty of care was owed by the defendant to the victim
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• Statutory duty of care
o E.g. workplace safety, mandatory reporting of child abuse
• Common law clearly defined relationships of duty of care
o Parent/child
o Doctor/patient
o Road user
• A duty of care may be found due to the circumstances (Instan, Stone &
Dobinson, Taktak, Miller)
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2. There was a gross falling short of the standard of care
• What was the omission?
• What would a reasonable person have done with that duty of care?
• Was there a gross falling short of the standard of care? (Nydam’s test)
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Sentencing
• S 5 – level 3 imprisonment
• S 5A (child homicide) – level 3 imprisonment
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STATUTORY HOMICIDES
• S 318 – culpable driving causing death
• S 319 – dangerous driving causing death or serious injury !
DEFENCES
• The defendant has the evidentiary burden to raise a defence
• The prosecution then has the legal burden to negate that defence beyond
reasonable doubt
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Defences: CL assault and statutory assault
Consent
• Contact is unlawful, unless the victim expressly or impliedly consents
• Consent must be freely given
• Situations where the victim cannot consent
o Where actual bodily harm has occasioned (R v Brown)
o Where fraudulent or not free consent is given
• Situations where contact is not unlawful
o Ordinary social life that we accept (e.g. sport, surgery, tattooing)
o Self-defence (Zecevic)
o Prevention of suicide (S 463B)
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Self-defence
• Test is from Zecevic
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1. Did the defendant honestly believe that the conduct was necessary?; AND
2. Was the defendant’s belief, based upon the circumstances as the defendant
perceived them to be, based on reasonable grounds?
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Defences: murder
Self-defence (S 9AC)
• Defendant honestly believed the victim would kill or seriously injure them;
AND
• The honest belief was based on reasonable grounds
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• If both elements satisfied = acquittal
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• NB: S 9AF (exception to self-defence)
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Defensive homicide (S 9AD)
• Defendant honestly believed the victim would kill or seriously injure them;
AND
• This honest belief WAS NOT based on reasonable grounds
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• If both elements satisfied = guilty of defensive homicide (level 3
imprisonment)
Defences: manslaughter
• Self-defence (S 9AE)
o Defendant honestly believed the conduct was necessary; AND
-
To defend themselves or another person; or
-
To prevent or terminate the unlawful deprivation of their liberty
or the liberty of another
o The honest belief was based on reasonable grounds
o If both elements satisfied = acquittal
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• NB: S 9AF (exception to self-defence)
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Defences: all homicide offences
• Family violence (S 9AH)
1. Establish that the defendant and victim are family members (S 9AH(4))
2. Establish that family violence has occurred
3. Discuss relevant factors (S 9AH(3)) to determine honest & reasonable
grounds
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• Emergency (S 9AI)
• Duress (S 9AG)
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Defences: applicable to all offences
Intoxication
• Intoxication is not an actual defence
o However, it is evidence that may be relevant in proving whether the
defendant performed the AR & MR
o NB: the mere fact that the defendant is unable to remember the
incident may not of itself be sufficient to prove a lack of AR/MR (R v
O’Conor)
• AR: in extreme cases, intoxication may mean that the defendant’s conduct
was involuntary
• MR: intoxication may mean that the defendant did not have the requisite MR
o NB: intoxication cannot be used to negate MR if the MR requirement
is negligence (as negligence is an objective test, and the reasonable
person is not intoxicated, per S 9AJ)
• Deliberate self-intoxication to perform an intended act
o The formation before intoxication of the requisite intent and the
deliberate induction of a state of intoxication for the performance of
the act makes that act when done intoxicated both voluntary and
with the requisite intent (R v O’Conor)
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ONLY FOR LAW1114 STUDENTS: SEX OFFENCES
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RAPE – BY PENETRATION (S 38(2)(a))
AR
1. Sexual penetration
• S 35(1)
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2. No consent
• To show a lack of consent, the prosecution must prove that the victim did
not freely agree to sexual penetration
• According to S 37AAA(b), circumstances where there is no free agreement
are found in S 36
o Submission because of force or the fear of force (S 36(a))
o Submission because of fear of harm (S 36(b))
o Submission due to unlawful detainment (S 36(c))
o Victim is asleep, unconscious, or so affected by alcohol or another
drug (S 36(d))
o Victim is incapable of understanding the sexual nature of the act (S
36(e))
o Victim is mistaken about the sexual nature of the act or the identity
of the defendant (S 36(f)) !also see Clarence, Gallienne
o Victim mistakenly believes the act is for medical or hygienic purposes
(S 36(g)) !also see Mobilio
• If the jury is satisfied that a S 36 circumstance exists, they must find that
there was no consent (S 37AAA(c))
• Can strengthen argument by referring to jury directions on consent (e.g. S
37AAA(d), S 37AAA(e), as well as the objectives (S 37A) and guiding
principles S 37B)
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MR
• Intentional sexual penetration; AND
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• Aware that the victim is not consenting/might be consenting (S 38(2)(a)(i));
OR
• Not giving any thought to whether the victim is consenting/might not be
consenting (S 38(2)(a)(ii))
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Sentencing
• S 38(1) – level 2 imprisonment
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RAPE – FAILURE TO WITHDRAW (S 38(2)(b))
AR
Sexual penetration (see rape by penetration)
1. No consent (see rape by penetration)
2. The defendant does not withdraw
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MR
• Becomes aware that the victim is not consenting/might not be consenting (S
38(2)(b)); AND
• Intentionally fails to withdraw
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Sentencing:
• S 38(1) – level 2 imprisonment
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RAPE – COMPULSION (S 38(3))
AR
1. Sexual penetration of the defendant or another (S 38(3)(a)) OR compulsion
to not stop sexually penetrating the defendant or another (S 38(3)(b))
2. No consent (S 38(3)(b))
3. Compulsion, by force or otherwise (S 38(4))
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MR
• Aware that the victim is not consenting/might not be consenting (S 38(4)(b)
(i)); OR
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• Not giving any thought as to whether the victim is consenting/might not be
consenting (S 38(4)(b)(ii))
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Sentencing
• S 38(1) –level 2 imprisonment
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COMPELLING SEXUAL PENETRATION (S 38A (1))
AR
1. Sexual penetration
2. Compels the victim to:
• Introduce an object or part of their body into their own anus or vagina (S
38A (2)(a)); OR
• Take part in bestiality (S 38A (2)(b))
3. No consent
!
MR
• Aware that the victim is not consenting/might not be consenting (S 38A (3)
(b)(i)); OR
• Not giving any thought to whether the victim is consenting/might not be
consenting (S 38A (3)(b)(ii))
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Sentencing
• S 38A(1) – level 2 imprisonment
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PROCURING SEXUAL PENETRATION BY THREATS OR FRAUD (S 57)
AR
!
!
1. Sexual penetration
2. The defendant procured through the victim through:
• Threats or intimidation (S 57(1)); OR
• Fraudulent means (S 57(2))
o See: Papadimitropolous, Linekar, Mobilio
!
MR
• The defendant acted with the intention of obtaining sexual penetration
!
Sentencing
• Threats: S 57(1) – level 5 imprisonment
• Fraud: S 57(2) – level 6 imprisonment
!
VULNERABLE GROUPS
Sexual offences against children
• S 44
• S 45
• S 47
• S 47A
• S 48
• S 49
• S 49A
• S 58
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Sexual offences against cognitively impaired persons
!
!
• S 50: cognitive impairment includes impairment due to mental illness,
intellectual disability, dementia or brain injury
• S 51
• S 52
!
Sexual servitude
• S 60AB
• S 60AC
• S 60AD
• S 60AE
!
!
!
!
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ONLY FOR LAW3301 STUDENTS: CRIMINAL
PROCEDURE
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CRIMINAL PROCEDURE: OFFENCES & PERSONS
Classification of offences
Summary offences
• Heard in the Magistrates’ Court
• Time limit: 12 months
• Verdict determined by the magistrate
!
Indictable offences
!
!
• Heard in the County or Supreme Court
• No time limit
• Jury of 12 decides verdict
• Judge decides the sentencing
!
Indictable offences triable summarily
• SS 28 and 29
!
Persons
Children
• 10 years old is the age of criminal responsibility in Victoria
• From 10-14, there is a rebuttable presumption of doli incapax (incapable of
wrong doing)
o To rebut this presumption, the prosecution needs evidence of the
child knowing the act was morally or seriously wrong, rather than just
naughty
!
Mental impairment
• There is a presumption of sanity (S 21(1))
• If the defendant was suffering from a mental impairment at the time of the
crime, and they did not know:
o The nature of their conduct; or
o That the conduct was wrong
They will not be found guilty (SS 20-25)
!
Corporations
• Can be prosecuted for:
!
!
o Crimes committed by the ‘mind’ of the organisation (e.g. CEO/board
of directors)
o Actions of employees (vicarious liability)
!
CRIMINAL PROCEDURE: ARREST
1. Distinguish being ‘arrested’ from being a ‘volunteer’ or being ‘in custody’
• A volunteer can be held indefinitely, so long as the person is aware that they
can leave at any time
• Custody is defined in S 461(1)
o It is wider than people just under arrest
o S 464A (2) provides that a person can be questioned in custody for a
‘reasonable time’ before being:
a) Let go
b) Bailed; or
c) Remanded into custody
o If keeping the person in custody was based on a belief on reasonable
grounds, the apprehension of the person is not unlawful, if
subsequently it is found that the person did not commit the alleged
offence (S 461(1))
!
!
4. Does the arrestor have power to arrest?
Arrest without warrant
• S 457: no person to be arrested without warrant except under this act
• S 458: any person can make an arrest if
o They find a person committing an offence (S 462)
o if instructed by police (S 458(1)(b))
o If someone is escaping legal custody (S 458 (1)(c))
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!
• S 459: police officers and PSOs
o No requirement to ‘find committing’
o Test: must believe on reasonable grounds that the person has
committed an indictable offence in Victoria, or, if outside Victoria,
would be an indictable offence here
Arrest with warrant
• Procedure outlined in S 64(1) Magistrates’ Court Act
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!
5. Was the arrest executed lawfully?
!
1. The arrestor must make it clear to the arrestee that they are not free to
leave
• No ‘magic formulae’ of words or actions for an arrest (Christie v Leachinsky)
• Physical: the arrestor must make the suspect aware of the arrest
• Words: words used do not need to be technical
o However, the loss of liberty must be made clear
!
2. The arrestee should be told why they are under arrest
• Arrestee must be told of the reasons for the arrest (s.21 (2) Vic Charter), so
that they can give a quick innocent account of their actions (Christie v
Leachinsky)
!
4. Force
• S 462A: force can be used to arrest, if not disproportionate, if the arrestor
believes on reasonable grounds that force is necessary to:
o Prevent an indictable offence from occurring
o Lawfully arrest someone for committing/suspected of committing any
offence
!
!
• Whether force is proportionate is discretionary (up to the magistrate/judge)
!
5. Once under arrest
• If arrestor is an ordinary person: must take the arrestee to the police or a
bail justice or the Magistrates’ Court within a reasonable time
• If the arrestor is a police officer/PSO: must release, or take before a bail
justice or Magistrates’ Court within a reasonable time
!
Unlawful arrest
• An arrested person may take civil action against the police for wrongful
imprisonment
• Arrest is not unlawful if it is subsequently found or proved that no offence
has been committed (s.461 CA)
!
CUSTODY
A person is in custody in one of the following three situations
•
The person is under lawful arrest under a warrant: S 464(1)(a)
•
The person is under lawful arrest without a warrant: S 464(1)(b)
•
The person is in the company of an investigating official for questioning or
investigation and the investigating official has sufficient information to
justify the arrest of that person in respect of that offence: S 464(1)(c)
!
REASONABLE TIME
• S 464A (1): every person taken into custody for an offence (whether
committed in Victoria or elsewhere) must be—
(a) Released unconditionally; or
(b) Released on bail; or
(c) brought before a bail justice or the Magistrates' Court—within a
reasonable time of being taken into custody.
!
!
• ‘Time’ starts once a person stops being a volunteer
• What is reasonable: S 464A, S 21(5) Vic Charter
!
POLICE DUTIES
•
Police may inform the person in custody of the circumstances of the
offence: S 464A(2)(a)
o BUT, police must inform if the suspect is being questioned
!
• Police may question or investigate to determine a person’s involvement
under S 464A(2)(b)
o Police must inform the person in custody of certain rights before
questioning or investigation commences S 464A (3)
!
!
POLICE POWERS
• Right to take fingerprints (S 464K(1))
• Right to carry out forensic procedures (S 464R- 464ZK)
!
SUSPECT RIGHTS IN CUSTODY
• If the person has not been arrested, police have no power to question/
investigate other than to ask the person their name and address (S 464(1))
• S 464C (1): right to communicate
• S 464F: right of foreign nationals to communicate with consular office
• S 464J (3): right to silence
• Charter HRR S 25 (2)(k): A suspect is not compelled to testify against himself
or to confess guilt
!
SPECIAL RIGHTS FOR VULNERABLE GROUPS
!
!
• Non-English speakers: right to an interpreter (S 464D(1))
• Children: parent/guardian present as independent person if under 18 (S
464E; Vic Charter s.25 (3))
• Intellectual disability: no legislative protection, but Victoria Police Manual
requires an independent third person and/or relative or friend present
!
WARRANTS
Police power to enter and search without warrant
• S 459A: police can enter and search private premises without a warrant,
where:
a) The police find the person committing a serious indictable offence; OR
b) Police have reasonable grounds to believe that a person:
i)
Has committed a serious indictable offence
ii)
Has a committed a serious indictable offence elsewhere, which
would be a serious indictable offence if committed in Victoria
iii)
Escaping legal custody
!
Warrant
• An informant applies for a warrant, which can be executed by any police
officer
• The warrant must be supported by evidence on oath or affidavit (S 12 (5)
Civil Procedure Act)
• The warrant must name a person, but if the name is not known, a
description of the suspect is sufficient (S 57 (3) Magistrates’ Court Act)
• Allows police to break, enter and search any place where the person
named/described by the warrant is suspected to be (S 61(1) Magistrates’
Court Act)
!
Warrant to arrest
!
!
• A warrant to arrest authorises police to break, enter and search any place
where named person is suspected to be and arrest (S 64(1) Magistrates’
Court Act)
• Presumption: in favour of summons to appear, rather than a warrant to
arrest (S 12 (5) Civil Procedure Act)
!
PROSECUTION
Initiating prosecutions
• Police informant charges
• DPP formally files an indictment
!
Who can prosecute?
• Police prosecutors prosecute summary offences
• DPP prosecutes all indictable offences
o Crown prosecutors also have the power to file indictments in the
DPP’s name (S 159 Civil Procedure Act)
!
Indictable offences
• A committal proceeding is obligatory for indictable offences (S 96 Civil
Procedure Act)
• EXCEPT:
o If the DPP is directly indicting the offence (S 96(a) Civil Procedure
Act)
o When an indictable offence is heard summarily (S 96(b) Civil
Procedure Act)
!
Plea negotiations
• Deals between the prosecution and accused
• Benefits for accused:
!
!
o Dealt with quickly in the Magistrates’ Court
o Sentencing discount for a guilty plea (S 5(2) and S 6AAA Sentencing
Act)
• Benefits for prosecution:
o Secure conviction
o Quick and cheap
!
Sentencing indications
• S 208A Civil Procedure Act: defence lawyer may ask for sentencing indication
from a magistrate/judge
• S 208B Civil Procedure Act: this indication can only be given once during the
proceeding
!
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!
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