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CRIMINAL LAW – EXAM NOTES

TOPIC 4 – ASSAULT 1. Explain and apply the different types of assault (common law and statutory) Common Assault at Common Law  Merest form of touching can constitute assault – Collins v Wilcock  Most non-serious injuries will be prosecuted as common assault  S 320 Crimes Act 1958 (Vic) – level 6 offence with maximum 5 years imprisonment Common Assault at Statutory Law  S 23 Summary Offences Act 1966 (Vic)  “Any person who unlawfully assaults or beats another person shall be guilty of an offence”  Maximum penalty 3 months  Elements remain identical to common assault at common law 2. Explain and apply the elements of assault 1. D makes unlawful physical contact with V OR puts V in threat of immediate and unlawful physical force (actus reus) 2. Can be committed intentionally or recklessly – NOTE: it is sufficient that D foresaw that they would probably make contact or put fear into V (mens rea) Intentionally Cause Serious Injury  Defined under s 15 of the Crimes Act 1958 (Vic)  S 16 provides that: A person who, without lawful excuse, intentionally causes serious injury to another person is guilty of an indictable offence. The prosecution must prove beyond reasonable doubt: 1. The accused caused serious injury to another 2. The injury was caused intentionally 3. The injury was caused without lawful excuse Recklessly Cause Serious Injury 1. S 17 2. A person who, without lawful excuse, recklessly causes serious injury to another person is guilty of an indictable offence. The prosecution must prove beyond reasonable doubt: 1. The accused caused injury to another 2. The injury was caused recklessly 3. The injury was caused without lawful excuse

Causing Injury Intentionally OR Recklessly  S 18 PAIGE WILLIAMSON - 218336085

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Note difference in maximum terms of imprisonment – intentionally (10 years) or recklessly (5 years)

3. Explain and apply the elements of the offence of stalking  S 21A  The accused intentionally engaged in a course of conduct (protracted or on more than one occasion), that included conduct of the type specified in ss 21A(2)(a)-(g) (following, contacting the victim etc.) and either:  Engaged in the course of conduct with the intention of causing physical or mental harm to the V or of arousing apprehension or fear in the V for his/her own safety or that of another OR  Knew that engaging in the course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear OR  Ought to have understood that engaging in such a course of conduct would be likely to cause such harm, or arouse such fear, and it actually did have that result. (NOTE: when the offence is committed with this mental state the prosecution must prove that the accused’s actions actually caused fear, harm etc.)

4. Describe the role of consent in assault It is part of the definition of assault that the contact or threat must be unlawful; consequently, there will be some instances where contact or threat will be lawful. What would otherwise be unlawful assault may be authorized in many ways: by statute (for instance, when an Act authorises the taking of a person’s fingerprints without their consent), by common law (a pat-down search ancillary to an arrest), or by the consent of the person. Generally, for consent to assault to be valid:   

The victim must have actually consented to the contact (consent may be express or Implied) The victim must have been capable of giving informed consent and The act was one to which the victim could consent (see R v Brown [1994]).

Eg. Boxing and Contact Sports By participating in such a sporting activity, a person demonstrates – by their conduct – consent to contact that may occur. Note that consent is limited to activity that occurs within the rules of the game (liberally interpreted) but does not extend to such things as a ‘king-hit’ behind play.  Pallante v Stadiums Pty Ltd (No. 1) [1976] VR 331

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5. Evaluate the limits of consent in assault   

Consent has been found to be limited in some extreme circumstances Eg. Sado-masochistic sexual activity R v Brown (1994) – on appeal the House of Lords upheld that consent is limited in extreme circumstances that glorify cruelty and dangerous acts. 6. Critically analyse contemporary legislation dealing with specific forms of assault (including female circumcision and assault with gross violence) Assault in Circumstances of Gross Violence  SS 15A and 15B

Female Genital Mutilation  Genital mutilation defined under s 15  s 32 prohibits a person from performing genital mutilation on a female  Consent is not a defence  One prescribed form of genital mutilation is permitted for females over 18  Maximum 15 years imprisonment Exceptions under s 34A: genital mutilation which occurs during the course of a surgical operation which is: necessary for the health of the woman; or the relief of physical symptoms associated with childbirth; or which is part of a sexual re-assignment procedure. Aggravated Assault Statutory form of assault with more severe penalties. ‘Aggravated’ offences because:  Accompanying intention OR

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The level of harm caused OR The class of person targeted OR The circumstances in which the assault took place.

Assault Performed with Particular Intention  Assault performed to further an unlawful purpose (ie. Murder or rape)  S 42 of the Crimes Act 1958 (Vic) – Assault with intent to commit sexual offences 1. A person (A) commits an offence if— (a) A intentionally applies force to another person (B); and (b) B does not consent to the application of that force; and (c) at the time of applying that force A intends that B take part in a sexual act; and (d) A does not reasonably believe that B would consent to taking part in that sexual act. Assault Against Particular Persons  S 31 of the Crimes Act 1958 (Vic) provides that: 1. A person who (b) Assaults or threatens to assault, resists or intentionally obstructs an emergency worker on duty, knowing or being reckless as to whether the person was an emergency worker; or (ba) assaults or threatens to assault, resists or intentionally obstructs a person lawfully assisting an emergency worker on duty, knowing or being reckless as to whether the person was assisting an emergency worker; is guilty of an indictable offence.  This is a level 6 offence and carries a maximum period of imprisonment of 5 years.  Note the elements of the offence created by s 31(1)(b): 1. The accused knew, or was reckless, as to whether the victim was an emergency worker 2. The accused assaulted / threatened to assault / resisted / intentionally obstructed the emergency worker 3. The emergency worker was on duty at the time the event took place  Section 31(1)(ba) creates a similar offence in relation to an assault on a person who was lawfully assisting an emergency worker.  Note that s 31 does not define assault; the common law definition must be relied upon.

TOPIC 5 – SEXUAL OFFENCES 1. Identify, explain and apply the elements of rape

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CRIMINAL LAW – EXAM NOTES S 38 Rape 1. (1) A person (A) commits an offence if— (a) A intentionally sexually penetrates another person (B); and (b) B does not consent to the penetration; and (c) A does not reasonably believe that B consents to the penetration. Elements 1. The accused sexually penetrated the complainant 1. Defined under s 35A 2. The accused intended to sexually penetrate the complainant 2. Must be intentional – recklessly is not sufficient 3. The complainant did not consent to the sexual penetration 3. Defined as a ‘free agreement’ under s 36(1) 4. Further defined under s 36(2) 4. The accused did not believe that the complainant was consenting to the sexual penetration. 1. S 38 2. When considering reasonableness, s 36A allows circumstantial evidence to be relevant Consequently, in Victoria a person may commit rape by: 1. 2.

Intentionally sexually penetrating another person without their consent, while not reasonably believing that the person consents to the sexual penetration: s 38(1). Compelling another person without their consent to sexually penetrate themselves, the offender, a third person or an animal while not reasonably believing that the person consents to the sexual penetration: s 39(1).

A key change brought about by the 2014 reforms was in relation to the mens rea of rape: the accused must now: • Intend to sexually penetrate the complainant and • Not reasonably believe that the complainant consents to the penetration (s 38(1)(c) especially s 36A)

2. Identify, explain and apply the elements of sexual assault Section 40 provides: A person (A) commits an offence if— (a) A intentionally touches another person (B); and  ‘touching’ defined under s 35B (b) the touching is sexual; and (c) B does not consent to the touching; and (d) A does not reasonably believe that B consents to the touching. Elements 1. The accused touched the complainant

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CRIMINAL LAW – EXAM NOTES 2. The accused intended to touch the complainant 3. The touching was sexual. 4. The complainant did not consent to the touching 5. The accused did not reasonably believe that the complainant consented to the touching It is a level 5 offence with 10 years maximum imprisonment Threat of Sexual Assault  s 43 3. Evaluate the role of consent in rape and sexual assault Consent whilst Married  Shift from the common law position that rape could not occur whilst married as consent was absolute  Statue now provides that rape can occur during marriage – s 62(2)  S 62 abolishes any pre-existing immunity for husbands for rape during a marriage

Circumstances where consent is not given:  Intoxication (by way of drugs and/or alcohol) – s 36(2)(e) NOTE: intoxication by D is measured objectively, where if it is selfinduced then reasonable belief is measured against a non-intoxicated person in the circumstances. If it is not self-induced, reasonable belief is measured against a person intoxicated to the same extent in the same circumstances. – Also a jury direction under s 47(3)(b) of the Jury Directions Act 2015.  If V is asleep – s 36(2)(d)

4. Evaluate different approaches to the issue of the accused’s belief that the complainant was not consenting Jury Directions

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Crimes Amendment (Sexual Offences and Other Matters Act) 2014 (Vic) New laws came into effect from 1 July 2015 S 46 of the Jury Directions Act 2015 (Vic). Simplified jury directions with regard to sexual offences Introduction of reasonability with regard to D’s belief of V’s consent

 Issue of Consent: Key statutory provisions deal with consent: (A) Did V consent?  S36(1): defines ‘consent’: free agreement  S36(2) also defines situations that negative consent  s46: Jury Directions Act 2015 – jury direction about consent Approach:  Start with s 36(1) and s 36(2): defn & negatived situations  Consider jury direction s46 where relevant Issue of Reasonable Belief  D did not reasonably believe that V was consenting  2. When assessing reasonableness of D’s belief, take into account the circumstances (s36A(1)) including any steps that D took to find out whether V was consenting (s 36A(2)). Approach: (a) Start with s38 (b) Consider s 36A (c) Consider s 36B (if relevant) (d) Consider jury direction (s47) where relevant Illustrative Cases 1. No penetration took place?: R v Getachew [2012] HCA 10 2. Rape or consensual force in bondage & discipline?: R v Soldo [2005] VSCA 136 3. Rape by threats or intimidation?: R v Warburton [2006] VSC 446 4. Consensual sexual activity but no consent to sexual intercourse: CP v PM [2009] VSC 232 5. V was asleep and D thought she was consenting? Roberts v The Queen [2011] VSCA 162 6. D started having intercourse with V while she was sleeping, she awoke and told him to stop, he continued? R v Yankovski [2007] VSCA 259

TOPIC 6 - PROPERTY OFFENCES: ROBBERY

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CRIMINAL LAW – EXAM NOTES 1. Outline the elements of theft identify and apply them to a fact problem Basic Definition – s 72(1)\  A person steals if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.  Indictable, level 5 offence with 10 years maximum imprisonment – s 74(1)

Elements 1. D dishonestly  Subjective to D’s actual state of mind  D is not dishonest if they believe in a legal right to the property (general belief as to ownership is not sufficient) – s 73(2)(a)  Doesn’t matter if D is mistaken in their belief to legal right – R v Langham  D’s belief need not be reasonable, however jury may take reasonableness into account to determine if the belief was genuinely held - R v Salvo  D may still be found to be dishonest even if they were willing to pay for the property – s 73(3)  R v Bonollo, R v Brow, R v Todo 2. Appropriated  D assumes rights as owner – s 73(4) 3. Property  Defined under s 71(1)  Includes money, all personal property (tangible and intangible) as well as ‘wild creatures’ – s 73(7) 4. Belonging to another  S 71(2)  Property may belong to several people 5. With an intent to permanently deprive the other of it  ‘permanently deprived’ is not limited in scope (ie. Joy-riding)  By virtue under s 73(14), intent to permanently deprive is imputed into offences of stealing or attempted stealing of a motor vehicle or aircraft

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CRIMINAL LAW – EXAM NOTES without owners consent

2. Outline the elements of obtaining property by deception and apply them to a fact problem S 81 Indictable offence, maximum 10 years imprisonment Elements 1. D dishonestly  As with theft, dishonesty for s 81 is a subjective concept denoting the absence of a belief in legal right to the property. BUT ss73(2) and (3) do not apply to s81 2. Obtained  A person ‘obtains’ property (by deception) if she/he obtains ownership, possession or control of it: s81(2) – a very broad definition. A person does not need to have obtained the property for him or herself - this element will be satisfied if the accused obtained the property for themselves or another person, or enabled another person to obtain or retain the property. 3. Property  The definition of property in s 71(1) applies to s 81. BUT ss 73(6) & (7) do not apply to obtaining property by deception. 4. Belonging to another 6. As with theft, property ‘belongs to another’ if that person has possession or control of it or has a proprietary right or interest in it: s 71(2). BUT ss 73(8)-(11) do not apply to the offence of obtaining property by deception 5. With the intention of permanently depriving the other of the property; and 6. Used deceit to obtain the property.  Deceit defined under s 81(4)  D’s state of mind will be subjectively assessed  To assess whether D’s used deception, prosecution will need to prove BRD: (a) D made a representation by words/conduct (b) Representation was made about existing/past facts/law (c) Representation was false (d) D knew representation was false OR was reckless as to whether it was true/false (ie. D was aware that the rep was probably untrue – R v Kalajdic) NOTE: An innocent but incorrect misrepresentation by D will not amount to deceit. (e) D intended to obtain the property by making the representation (f) The false representation was believed by V (who was thereby deceived) (g) D obtained the property as a result of the deception.

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CRIMINAL LAW – EXAM NOTES Causal Connection  Property must have been obtained as a result of the deception  R v Jenkins  Prosecution must prove that the deception operated on the mind of the person deceived  Question of fact for the jury to decide whether the deception was an operative cause of the obtaining – R v King

3. Outline the elements of obtaining financial advantage by deception and apply them to a fact problem S 82. 1. A person who by any deception dishonestly obtains for himself or another any financial advantage is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum). 2. For purposes of this section deception has the same meaning as in section 81. 3. Indictable offence with 10 years max imprisonment Elements 1. D dishonestly 2. Obtained 3. For themselves or another 4. A financial advantage, and  No statutory definition, words should be given ordinary meaning  Usually means an improvement in D’s financial position  However, can also apply to where D has denied V payment of debt – R v Vasic 5. Used deceit to obtain the financial advantage NOTE: Causal connection must be established, however an intention to permanently deprive is not necessary. Distinction between Theft and Obtaining Property by Deception

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Theft = appropriation of property without consent Compared to obtaining property with consent by deception

TOPIC 7 – PROPERTY OFFENCEES: ROBBERY, BURGLARY & BLACKMAIL 1. Outline the elements of robbery and armed robbery and apply them to a fact problem

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Robbery  S 75 - A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear that he or another person will be then and there subjected to force.  Indictable offence with max 15 years imprisonment Elements 1. D committed theft 2. D used force on another person or sought to induce fear of immediate force on another person  Force/threat of force is not limited to V only, may include others – Smith v Desmond  Force not restricted to violence – R v Dawson and James  Whether force has been used is an issue for the jury – R v Clouden 3. D did so immediately before or at the time of stealing  Timing of force is critical – R v Hale 4. D did so for the purpose of theft Armed Robbery  s 75A(1) - A person is guilty of armed robbery if he commits any robbery and at the time has with him a firearm, imitation firearm, offensive weapon, explosive or imitation explosive within the meaning assigned to those terms for the purposes of section 77(1).  Indictable offence with max 25 years imprisonment  Note that armed robbery is robbery in circumstances of aggravation; that is, all the elements of robbery must be established PLUS the accused must have been armed with a weapon (as defined in s 77(1). Elements 1. D committed robbery (as per elements above) and 2. At the time, D had a firearm, imitation firearm, offensive weapon, explosive or imitation explosive with them  ‘with them’ will be satisfied if, at the time of the robbery, D had article on their person or readily available for use – R v Hartwick

3. Outline the elements of burglary and aggravated burglary and apply them to a fact problem Burglary – s 76 Burglary involves the accused entering a building or part of a building as a trespasser and, at the time of entering, having the intention to assault a person in the building or having the intention to damage the building or

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CRIMINAL LAW – EXAM NOTES damage any property in the building.  Indictable offence with max 10 years imprisonment Elements 1. D entered 2. A building (or part of) – includes inhabited vehicles and vessels under s 76(2) 3. D did so as a trespasser  ie. Without right or authority to enter, knowing they had no right to enter or reckless as to whether they had right to enter (D knowing it was probable they had no right to enter)  Barker v R, R v Verde, R v Kalajdic 4. D intended to: (a) Steal some...