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Full semester exam notes, including authorities, defences and excuses....

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Criminal Negligence: Chapter 27 Duties to provide necessaries of life 1. the provision of necessaries (s.285, 286): R v McDonald; R v Nielsen 2. the duty of persons doing dangerous acts (s.288) 3. the duty of persons in charge of dangerous things (s.289): R v Dabelstein; R v Hodgetts and Jackson 4. the duty to do certain acts (s.290): R v Watson; Ex Parte NOT OFFENCE CREATING PROVISIONS, but if breached the accused is held to “have caused any consequences which will result to the life or health of any person” which can amount to causation for the purpose of unlawful killing.

Unlawful Killing: s 304 ELEMENTS: 1. Person 'Any person' - the difference between a foetus and a child (foetus is not a person, therefore can't be murder or manslaughter - has to occur after birth) Homicide applies if someone hurts a foetus and after birth it dies: Castles 2. Kills Defined in section 293 - any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person SUB-ELEMENTS: Causation: (direct or indirect) Whether the acts or omissions of the accused are capable of constituting causation (a matter of law) is a question for the judge But for test: necessary and sufficient condition of the victim’s death: R v Smith Krakouer: states the limitations of the ‘but for’ test. Tests for causation: Royall v The Queen 1. The common sense / natural consequences test: was it a cause as a matter of fact 2. The reasonable foreseeability test: is it reasonably foreseeable that your actions could cause someone to react in the way that they did, thereby causing themselves harm (objective test) 3. The substantial contribution test: (R v Sherrington) to be a cause, it doesn’t have to be the sole or the main cause, it simply has to have some effect Novus Interveniens Actus: R v Padgett  Actions by the victim: Medical treatment (s 297): Blaue  Extraordinary situation, refusal to seek treatment is Novus - it is immaterial that injury might have been avoided / prevented by proper care or treatment - take the victim as they are found (inclusive of religious beliefs, culture, etc.)  NAI - where treatment is a (factual) cause: s 298, R v Cook  NAI - irrational behaviour by the victim: was it reasonable in the circumstances Death: No definition in the code, brain dead person is dead at law

Death may also be presumed on the basis of circumstantial evidence (conviction of murder or manslaughter where the body hasn’t been found) 3. Unless authorised, justified or excused. Police powers and responsibilities act - R v Prow (subject to prior approval in form of legislation or common law) Justification or excuse - circumstances might excuse the death (self-defence, accident) (s.284 consent immaterial) Doesn’t comply with euthanasia

Murder: s 302 Definition: s 300 – ay person who unlawfully kills someone is guilty of a crime Consists of unlawful killing under any of the 5 circumstances 1. S 302(1)(a): Where the offender intends to kill or to do GBH to any person 2. S 302(1)(b): Where the death occurs as the result of some dangerous act which the offender does in the prosecution of an unlawful purpose (some offence) 3. S 302(1)(c): Where the offender intends to do GBH to someone while carrying out a serious crime, or to aid someone after committing the crime 4. S 302(1)(d): Where the death occurred as the result of drugging the victim as part of a crime, or to aid their escape after committing the crime 5. S 302(1)(e): Where the death occurs by suffocating while a crime is carried out, or to aid their escape after committing the crime Intentional Murder: S 302(1)(a) Intentional killing defined in s 1 Requires intention to cause death, or GBH (s.1 Code def) - any injury: endangering life or likely to cause permanent injury to health includes permanent disfigurement loss of part of body or organ of body. So, if there is causation and an intention to inflict one of these injuries in the definition of GBH to some person (and someone actually dies as a result of that intention) - there is a murder under the Code. ELEMENTS:  Purpose Intention (not foresight intention)  Where the intention is the whole reason for the accused's actions. This kind of intention is the only kind that will ground a charge on the intentional murder under the Code. 

Wilmont: Justice Connolly, with whom the other two judges agreed, said that intention and desire were different things at law. The problem at trial was that the jury had been told that it was enough to prove intention if they were satisfied that the accused realised that what he was doing might or was likely to endanger her life. A reckless attitude of pressing ahead with what you are doing even though there’s a risk that the person could be killed isn’t enough to ground intention for the purposes of 302(1)(a). Connolly rejects knowledge intention for purposes of the Code.

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Stated relevant intentions: Zabouroni v The Queen

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“12 High court now realise that the idea you can intend a consequence you don’t desire is misplaced. You may not like the fact that you are bringing it about, but to the extent that you choose to do so, you do desire to do so (someone performing euthanasia may regret having to do so but, to the extent that they choose that option as the best outcome for their patient, they do desire that outcome more).”

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In R v Reid [2006] QCA 202 – per Chesterman J at [90] – “In ordinary, everyday, usage, “intention” means the act of “determining mentally upon some result’. Intention is a ‘purpose or design”. If an accused intends to kill, or transmit a disease, he means to kill or transmit the disease. His actions are designed to bring about the result.”

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Coincidence of physical acts and intention: Where death caused by accused, cannot rely on mistake as to precise time and manner of occurrence of death: Thabo Meli - intended to kill a man and tried to make it look like an accident (after they’d assaulted him) by rolling him over a cliff - he died from the fall so they argued that they intended to kill him, but not when they rolled him over the cliff. Church - Similar facts but rolled victim into river. Royall - Mason CJ, approved Thabo Meli. Don’t need physical act to coincide with the intention at all.

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Thabo Meli [1954] 1 All ER 373 - Offenders took a man to a hut - struck him over the head - thought he was dead. Took his body and rolled it over a cliff. The victim didn’t in fact die from the blow to the head or the fall from the cliff - medical evidence showed that he died from exposure as he lay unconscious at the foot of the cliff. A series of events causing death – no need to isolate any particular act

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Church [1966] 1 QB 59 – The accused clearly intended that the victim die, otherwise he would not have attempted to hide the body.

Knowledge of death as probable: R v Crabbe (not a form of intention) (NOT AN ELEMENT, BUT NECESSARY)  Foresight of a result as a virtually certain consequence is a rule of evidence entitling the jury to infer intention, but it is not part of the definition of intention (not part of the “substantive law”): Woollin per Lord Steyn.  Certain foresight of death is not intended result, is merely a rule of evidence: R v Moloney; R v Nedrick  ** Note: element 2 is really a separate element and is not just wider definition of intention, but just as knowledge the consequence is likely to occur  Note: Seems very similar to oblique or foresight intention, but it is not construed in Australia as intention at all but as a separate, alternative mental element entirely 302(1)(b): Dangerous Act Killing 3 physical elements (in addition to it being an unlawful killing) 1. A dangerous Act Determined objectivity (Gould and Barnes, Hind and Hardwood)

“Charged with dangerous act killing when they attempted to bring about a miscarriage in a girl (girlfriend of one of them). Administered a mixture of glycerine, dettol and Surf to her uterus. It killed her. They argued that the outcome would occur - in their view it wasn’t an act that would be likely to endanger human life. Townley J - held that the question of whether the act is likely to so endanger is objective, and up to the jury as reasonable people - informed by experts if necessary. Hind and Harwood (1995) 80 A Crim R 105 – per Fitzgerald P – “Likely” does not mean it’s more probable that not that the act would endanger life. It just means that there is a real and not remote chance – not a case of being more than a 50/50 chance.”

2. An unlawful purpose There must be a separation between the unlawful purpose and the dangerous act. In Gould and Barnes, the unlawful purpose had been to procure an abortion – and dangerous act was introducing the liquid into uterus. Very minimal separation required – Stuart v R  How much separation is required? R v Hughes - dangerous could be merely an assault - but must be assaulting the victim in pursuit of some other unlawful purpose. In this case assault was both unlawful purpose and the dangerous act - so only convicted of serious assault.  Stuart v R - In extortion attempt set fire to drum of petrol in Whisky-au-go-go. Didn’t intend GBH or death - but people died of asphyxiation. HC said that setting fire to something in prosecution of unlawful purpose of arson met the separation requirement - so separation required very minimal. (unlawful purpose also could have been extortion not just arson)  In Hughes the dangerous act causing death was a violent assault, but the accused had no purpose other than to assault the deceased. 3. The Act was done in prosecution of that unlawful purpose Phillips and Lawrence (1967) Qd R 237 - The dangerous act (rape and assault) not done in furtherance of the robbery.

Attempted Murder: s 306 Type 1  The accused attempted to kill another person, and  The attempt was unlawful Type 2  The accused did an act, or failed to do an act which they had a duty to do, and  The act or omission was of such a nature that it would be likely to endanger human life, and  It was done with the intention to unlawfully kill someone

Manslaughter: s 303 A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of manslaughter - all unlawful killings not defined as murder (s576, 577) s.576(1) - if a person is charged on an indictment for murder he can be convicted of manslaughter if the evidence doesn’t support murder. BUT,

s.576(2) – if a person is charged on the indictment with unlawful killing (manslaughter), he cannot be alternatively convicted of murder. s.577 – if a person is charged on the indictment with murder or unlawful killing (manslaughter), he can be alternatively convicted of killing an unborn child (s.313) or concealing the birth of a child (s.314) – if the deceased was a child. R v Hodgetts and Jackson: They didn’t intend victim to suffer any serious harm (therefore no 320(1) (a) murder). What they were doing was indeed a dangerous act, but they did it to try and chase him away from their business and not in the prosecution of some unlawful purpose (so there was no 302(1)(b) murder). Therefore, only manslaughter.

Unlawful Striking causing Death: s 314A One punch can kill) - no intention needed (assault is not an element of the offence).

Robbery: s 411 S 409 (definition), 411 (offence creating provision) Essentially: stealing + violence ELEMENTS of Robbery (1): o Steals o Anything o And it or immediately before - or immediately after the time of stealing it o Uses - or threatens to use - actual violence o To any person - or property o In order to obtain the thing stolen - or - to prevent resistance to its being stolen ELEMENTS of Robbery (2) - VIOLENCE: 1. Smallest amount of actual violence is sufficient: R v Jerome [1964] Qd R 595 2. Actual violence v personal violence: R v De Simoni (1981) 147 CLR 383  Personal violence = aggravated form of robbery (longer imprisonment - s411(2))  Personal violence means violence to the person - bodily violence  Actual violence means no more than physical force which is real and not merely threatened or contemplated Aggravating factors  Armed (or pretending to be armed) with dangerous or offensive weapon or instrument (includes gun, sword, syringe full of blood: Miles (1997) WAR 518; Pratt (2000) 112 A Crim R 70. Not usually a weapon: Police v Smith [1974] 2 NZLR 32)  Company - one or more persons - doesn’t mean more than 1 has to actually strike victim, just physically present / involved for the common purpose: Brougham (1986) 43 SASR 187  Personal violence (see above)  MUST BE CHARGED IN INDICTMENT: Johnson [1973] Qd R 303; Phillips and Lawrence; McGoldrick [1995] 1 Qd R 553  Alternatives:  S 412 - Attempted robbery: R v Agius [2015] QCA 277  S 413 - Assault with the intent to steal  S 414 - Demanding property with menaces with intent to steal  S 575 - Stealing

ASSAULT IS NOT AN ALTERNATIVE VERDICT

Burglary: s 419 ELEMENTS 1. Enters or is in (defined in s 418(2) - part of persons body or instrument within the dwelling or premises 2. Dwelling of another (defined in s 1) 3. With intent to commit an indictable offence  14 years maximum imprisonment  (1) Any person who enters is in the dwelling of another with intent to commit an indictable offence in the dwelling commits a crime  Stealing isn't necessarily an element  (2) If the offender enters the dwelling by means of any break, he or she is liable to imprisonment for Iife (s 418(1); Constructive break - s 418(3)  Separate offence - (4) Any person who enters or is in the dwelling of another and commits and indictable offence in the dwelling commits a crime - max penalty: imprisonment for life  Fleeting intent: Potter (1981) 4 Crim R 305 (doesn’t matter because it was still an aggravated form of assault in her dwelling)

Wilful Damage: s 494 ELEMENTS: 1. Unlawfully (without the owner’s consent, OR act done to one’s own property with intent to defraud is unlawful - s 459) 2. Wilfully: Lockwood [1981] Qd R 209 1. Requires actual intention or deliberately did an act 2. Destroys or damages: Zischke [1983] 1 Qd R 240 - "damage" means to "render imperfect or inoperative" Property (defined in s 1)

Arson: s 461 ELEMENTS: 1. Sets fire to the property (not mere scorching, blistering or blackening: Jorgenson (1955) 3 1. "expression extends beyond actual ignition to embrace conduct causing a building to burn": Joinbee [2013] QCA 246 2. Structure: Berghofer (1997) 91 A Crim R 307 2. Wilfully: Lockwood Test; R v T [1997] 1 Qd R 623 3. Unlawfully (s 458) Lockwood Test:

Possession of DD: s 9 of DMA 

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Possession defined in the code: s 4 o Includes: under control in any place; whether for use of benefit of another; even though another person has actual possession or custody of the thing Types of possession recognised o Actual - physical control or custody, manual handling + knowledge o Constructive - control, intention to control or claim of right + knowledge: Lai v The Queen o Joint - consent to possession, or joint intention to possess + knowledge - Davies v Western Australia Definition of possession in DMA s 116, directs to the CC definition in s 1 o

Code definition: possession includes having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question.

ELEMENTS 1. A person 2. Unlawfully possesses 3. Dangerous drug  Possession based on the notion of actual or potential control  No need to establish ownership as such  S 129 - if the prosecution can prove they were found in a place where the accused was an occupier, that’s conclusive evidence that the accused was in possession of those drugs. Accused would have to prove that they didn’t know the drugs were there  R v McGregor - a person isn't accused to be an occupier just because someone's possessions are in a place  Knowledge is required (not possession if the person is unaware): Clare v R o Intention is a necessary element of possession: Williams v R  But - Knowledge of the nature of the thing possessed (that it is in fact a drug does not need to be proved) defendants will sometimes make a claim of innocent possession on the basis of the excuses and defences in the code (then s 129 applies)  Unlawful Acts – s 458 of CC Defences / Excuses: o Claim of innocent possession  The operation of the Criminal Code s 24 (mistake of fact) is excluded unless that person shows an honest and reasonable belief in the existence of any state of things material to the charge; and  The burden of proving any authorisation to do any act or make any omission lies on that person o Crown needs to prove knowledge of existence of the thing possessed o Accused needs to provide evidence of the mistake of fact (needs to prove: honest (subjective) and reasonable (objective) belief in the state of things)

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Clare v R: Don’t need to know that it is a dangerous drug just intended to possess a thing which turns out to be a dangerous drug. Only needed to prove possession of the thing, and that there was knowledge of possession, no need to know that it wasn’t a dangerous drug R v Tabe: (Walker SC): “To have aided, counselled or procured the commission of an offence one must have intentionally participated in the principal offence and so must have had knowledge of the essential matters which went to make up the offence The decision of the Court of Appeal would mean a taxi driver who had driven Briggs to the post office to collect the envelope, which he knew by inference was not empty, would be deemed to be in possession of a dangerous drug.”

Attempt: if you believe you have / take a dangerous drug – possession as per s 4 of DMA

Producing of DD: s 8 of DMA Elements 1. A person 2. Unlawfully produces 3. A dangerous drug/s  Produce means: prepare, manufacture, package or produce. Offering to do; doing or offering to do any preparatory to, in furtherance of, or the purpose of any act specified  Calabria v The Queen: preparation of drugs (drying or growing weed plants, prior to producing)  Cultivate - ordinary natural meaning: "bestow labour or attention to promote growth", includes merely watering: R v O'Dempsey o Merely harvesting is cultivating: Stratford and McDonald o Possessing chemicals for use in manufacture of drugs not sufficient ground for conviction: R v Boyd

Supplying of DD: s 6 of DMA ELEMENTS: 1. A person who 2. Unlawfully supplies 3. A dangerous drug 4. To another  Aggravated supplies (s6 (2)) o If the offender is an adult who supplies drugs to: a minor; intellectually handicapped person; within an educational institution; within a correctional institution; does not know he or she is being supplies with the thing  Definition of supply: giving, distributing, selling, administering, transporting or supplying; offering to do; doing or offering to do any preparatory to, in furtherance of, or the purpose of any act specified  R v Pinkstone - an accused has supplied a drug to another once it is placed in a mail delivery system with the intent to give to someone. Irrelevant on whether it is actually received  R v Manisco - supply is broader than just selling, a transfer of proprietary rights by delivery constitutes a supply  Complicity and Mistake

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R v Maroney - counselled an procured the supply to himself Gauci v Driscoll - offered the goods for sale, believing it was weed when it wasn’t. Still supplying, irrelevant that he was mistaken in his belief. DEFENCE OF MISTAKE OF FACT WON’T APPLY

Trafficking of DD: s 5 of DMA ELEMENTS: 1. A person 2. Carries on the business 3. Of unlawful trafficking 4. In a dangerous drug  Note: for our purposes, once the element of 'carrying on a business' is met - we will deem the element of 'trafficking' to have also been met  'Carries on the business' o R v Quaile: A couri...