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LAW1CRL Principles of Criminal Law

2015 Paul Paxinos Criminal Law

Table of Contents Elements of a crime Recap Assault

1

2

Assault involving app. Force & Checklist Recklessness

2

5

Assault without app. Force & Checklist

6

9

Stalking

Stalking Checklist 6

Conduct endangering life & Checklist 11 Rape + Checklist Consent

17 19-24

Sexual Assault 25 Sexual Assault Checklist 26 Theft

28 What is Property

28

What is property belonging to another? & Appropriation29 Intention to Permanently Deprive Dishonesty

31

Checklist

33

Obtaining property by deception Checklist

41

44

Strict and Absolute liability Strict Liability

45

45

Absolute Liability

46

Defence of Mistake

46

Attempt

34

40

Criminal Damage to Property Checklist

30

50

Intention to commit indictable offence & Intention or Belief as to Fact or Circumstance Checklist

51

56

1

LAW1CRL Principles of Criminal Law 2015 Paul Paxinos 1. The Elements of a Crime — Brief Recap 

Criminal offences traditionally have two basic parts: o physical or external element(s) (or actus reus) o fault element(s) (or mens rea)

1.1  (a) 

Physical or external elements Three basic kinds of physical or external elements: Conduct Conduct o positive act o



or omission

Every offence has at least a conduct element o e.g. sexual touching in sexual assault o sometimes the kind of conduct is not specified 

it’s just “engage in conduct” or “committed an act” 

(b) 

the result of the conduct is usually then key

Result Result or effect of the conduct o what the conduct caused or brought into existence



Some offences have a result element o e.g. death of a person in murder



Sometimes the conduct and result are bundled up in the one concept o e.g. to damage property requires engaging conduct that causes damage

(c) 

Circumstance Some offences also have a circumstance element o these are certain features of the surrounding context



The conduct sometimes occurs in particular circumstances which are essential to the definition of the offence o e.g. the complainant does not consent to being sexually touched o or the stolen property belonged to someone else

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Fault elements



Many offences have a fault element



Two rough and basic kinds: o Subjective and o Objective

(a)

Subjective fault elements



Culpability of offender determined by their actual mental or subjective states



For example: o Intention o Recklessness 

(b)

e.g. knowledge that death will probably result from one’s conduct

Objective fault elements



Culpability of offender determined by reference to something outside their mind



For example: o Negligence 

culpability is determined by referring to what the reasonable person in the position of the defendant would have done and known.

o Failing to have a reasonable belief 

e.g. failing to have a reasonable belief in consent, in rape and sexual assault

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1. Assault: 1.1

“Common assault” — Statutory summary offence, s 23, Summary Offences Act

“Any person who unlawfully assaults or beats another person shall be guilty of an offence.”

o

o 

15 penalty units or 3 months prison

Does not give much guidance as to the elements 

“Assault or beats” o

This reflects the old distinction between assault and battery

o

Assault was causing another to fear the immediate application of force

o

Battery was the actual application of force

o

Used to be two distinct offences 

But now just two different types of assault

1.2 Assault Involving the Application of Force The elements Assault involving the application of force has three elements:

1.

1.

The accused applied force to the complainant’s body;

2.

The application of force was intentional or reckless; and

3.

The application of force was without lawful justification or excuse.

1.3 Jury Checklist: Application of Force Three elements that the prosecution must prove beyond reasonable doubt: 1.

The accused applied force to the body of the complainant; and

2.

The accused intended to apply force to the body of the complainant; and

3.

The accused acted without lawful justification or excuse.

Application of Force 1. Did the accused apply force to the body of the complainant? If Yes, then go to 2 If No, then the accused is not guilty of assault

Intention 2. Did the accused intend to apply force to the body of the complainant? If Yes, then go to 3 If No, then the accused is not guilty of assault

Lawful Justification or Excuse 3. Did the accused act without lawful justification or excuse? If Yes, then the accused is guilty of assault (as long as you have answered yes to Questions 1 and 2)

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LAW1CRL Principles of Criminal Law

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1.4 The accused applied force to the complainant’s body 

The prosecution must prove that the accused applied force to the complainant’s body (Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439).

 

The force applied need not be violent and may be as slight as a mere touch (Collins v Wilcock [1984] 1 WLR 1172). Indirect use of force: Force may be applied directly or through the medium of a weapon or instrument controlled by the accused (Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; Director of Public Prosecutions v K [1990] 1 WLR 1067; Pritchard v R (1999) 107 A Crim R 88; Darby v DPP (NSW) (2004) 150 A Crim R 314).

1.5 The application of force was intentional or reckless 

Accused meant that result (apprehension of immediate application of force)



Accused knew their conduct would probably cause victim to apprehend the immediate application of force.



An accused is reckless if they acted in the knowledge that a particular harmful consequence would probably result from their conduct, but they decided to continue their actions regardless of that consequence (R v Campbell [1997] 2 VR 585 at 586; Crabbe (1985)156 CLR 464).

 

The prosecution must prove that the application of force was intentional or reckless, commits assault recklessly if he/she foresaw unlawful contact or the creation of apprehension of immediate and unlawful contact but carried on regardless. (Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; Macpherson v Brown (1975) 12 SASR 184; R v Venna [1976] QB 421; R v O’Conner (1980) 146 CLR 6).



For the application of force to have been "reckless", the accused must have realised that his or her conduct would probably result in force being applied to the complainant’s body (R v Crabbe (1985) 156 CLR 464; R v Nuri [1990] VR 641; R v Campbell [1997] 2 VR 585).



The accused will not have acted recklessly simply because he or she ought to have known that his or her conduct would result in such contact. The accused must have adverted to that likelihood (Edwards v Police (1998) 71 SASR 493; Fisher v Police (2004) 154 A Crim R 511).

Lawful Excuse 1.

The prosecution must disprove, beyond reasonable doubt, any justifications or excuses that are open on the evidence (Zecevic v DPP (1987) 162 CLR 645).

2. 

The following justifications and excuses are discussed below: Consent (prosecution may need to prove that the complainant did not consent to the alleged assault, The extent of any harm caused or risked; and

   

For example if in an unsupervised sporting arena where there are no referees and one is injured it isn’t really consent (i.e fight club).

Touching in the course of an ordinary social activity (Collins v Wilcock [1984] 1 WLR 1172) Exercising a lawful power of arrest – Reasonable force (R v Turner [1962] VR 30); Lawfully correcting a child; Self-defence;



Ejecting a trespasser: A householder is entitled to use reasonable force to eject a trespasser. However, where the person who enters is a licensee, he or she must be given reasonable time to leave before force can be used against him or her (Robson v Hallett [1967] 2 QB 939; Kay v Hibbert [1977] Crim LR 226). ().

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Jury Checklist: No Application of Force [This checklist is based on an intentional assault. If recklessness is in issue it will need to be amended as necessary.]

Four elements that the prosecution must prove beyond reasonable doubt: 1.

The accused acted in the way alleged; and

2.

The accused intended to cause the complainant to apprehend the immediate application of force to their body; and

3.

The accused’s actions caused the complainant to apprehend the immediate application of force; and

4.

The accused acted without lawful justification or excuse.

Application of Force 1. Did the accused act in the way alleged by the prosecution? If Yes, then go to 2 If No, then the accused is not guilty of assault

Intention 2. Did the accused intend to cause the complainant to apprehend the immediate application of force? If Yes, then go to 3 If No, then the accused is not guilty of assault

Effect on the Complainant 3. Did the accused’s actions cause the complainant to apprehend the immediate application of force? If Yes, go to 4 If No, then the accused is not guilty of assault

Lawful Justification or Excuse 4. Did the accused act without lawful justification or excuse? If Yes, then the accused is guilty of assault (as long as you have answered yes to Questions 1, 2 and 3) If No, then the accused is not guilty of assault

Assault causing apprehension of application of force 1.

Assault not involving the application of force has three elements: 1.

The accused committed an act that caused the complainant to apprehend the immediate application of force to his or her body;

2.

The accused intended his or her actions to cause such apprehension, or was reckless as to that outcome; and

The accused had no lawful justification or excuse for causing the complainant to apprehend the application of immediate force

The accused caused the complainant to apprehend immediate force of violence  

 

Onus on: Prosecution To Prove: The accused committed an act that caused the complainant to apprehend the immediate application of force to his or her body (Knight v R (1988) 35 A Crim R 314; Fisher v Police (2004) 154 A Crim R 511; ACN 087 528 774 v Chetcuti (2008) 21 VR 559; Slaveski v State of Victoria [2010] VSC 441; White v State of South Australia[2010] SASC 95). “Apprehension” - Really a matter of belief and not fear.

Relevance of fear: Despite cases referring to fear, the complainant does not need to have been frightened. Only needs to have apprehended that physical contact would be made without his or her consent (ACN 087 528 774 v Chetcuti (2008) 21 VR 559; Slaveski v State of Victoria [2010] VSC 441). 6

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

Third party can inflict fear: The complainant does not need to fear that the accused will apply the force personally. This element will be satisfied if the accused causes the complainant to apprehend the immediate application of force by a third party (Macpherson v Beath (1975) 12 SASR 174).



Level of apprehension: The contact apprehended by the complainant does not need to be grave. Apprehension of any application of force is sufficient (Macpherson v Brown (1975) 12 SASR 184; ACN 087 528 774 v Chetcuti (2008) 21 VR 559; Slaveski v State of Victoria [2010] VSC 441).



Apprehension of specific act: The complainant does not need to apprehend a specific act. But believes it is likely to be physically violent (Smith v Chief Superintendent, Woking Police Station (1983) 76 Cr App R 234; R v Ireland [1998] AC 147).



Regard to intention for this element: This element may be satisfied even though the accused had neither the intention nor the ability to carry out his or her threat (e.g. where the accused points a replica gun at the complainant, but the complainant believes it to be real and apprehends its imminent use) (Barton v Armstrong [1969] 2 NSWR 451; Macpherson v Brown (1975) 12 SASR 184; R v Gabriel (2004) 182 FLR 102).



How to be satisfied: For this element to be satisfied, the complainant must know about the accused’s actions (Pemble v The Queen (1971) 124 CLR 107). [3] o



 

Immediacy of force: The complainant must have apprehended the immediate application of force (i.e., feared that force would be applied shortly) and not at some distant point in the future R v Gabriel (2004) 182 FLR 102; (Knight v R (1988) 35 A Crim R 314; Zanker v Vartzokas (1988) 34 A Crim R 11;; ACN 087 528 774 v Chetcuti (2008) 21 VR 559; Slaveski v State of Victoria [2010] VSC 441). o

The application of force must be immediate

o

Without delay – given the situation – e.g. ongoing assault where trapped

o

Not simply soon

o

But where the accused’s threatening conduct is continuing (e.g. keeping the victim trapped)

o

the victim may apprehend that force could be applied at any time while they are within control of the accused (see Zanker v Vartzokas)

o

The application of force need only be possible, not certain

o

Assume this is understood as “appreciable risk”, not mere possibility

Continuing Threats A threat of violence may continue after the relevant words have been uttered (e.g., where the complainant is held prisoner by the accused, who has threatened to harm him or her later) (Zanker v Vartzokas (1988) 34 A Crim R 11). o



Evidence that the complainant feared immediate violence can be inferred from his or her actions (e.g., fleeing or hiding from the accused) (R v Mostyn (2004) 145 A Crim R 304). The complainant must have feared the "immediate" application of force

It has been held that in such cases, the requirement for "immediacy" will be satisfied if: 

The accused’s actions caused the complainant to apprehend relatively immediate and imminent violence; and



The accused remained in a position of dominance, kept the apprehension of violence ever present in the complainant’s mind (Zanker v Vartzokas (1988) 34 A Crim R 11; R v Mostyn (2004) 145 A Crim R 304. But see R v Gabriel (2004) 182 FLR 102). The apprehension may have been caused by words or gestures

Mere use of words: “mere words" can constitute a positive act for the purposes of assault(R v Wilson [1955] 1 All ER), as long as they cause the complainant to apprehend the immediate application of force (for reasons explained by Glanville Williams in ‘Assault and Words’ (1957) Crim LR 219 at 224). (White v State of 7

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South Australia [2010] SASC 95; Slaveski v State of Victoria [2010] VSC 441. See also Zanker v Vartzokas (1988) A Crim R 11; R v Ireland[1998] AC 147; R v Gabriel (2004) 182 FLR 102).



A physical gesture may also cause the complainant to apprehend the immediate application of force (White v State of South Australia [2010] SASC 95).



Threats from a distance (e.g., telephone threats): There is no rule preventing a (e.g., a threat made over the telephone or by email) from constituting an assault (Slaveski v State of Victoria[2010] VSC 441. See also Barton v Armstrong [1969] 2 NSWR 451; R v Knight (1988) A Crim R 314; R v Mostyn (2004) 145 A Crim R 304).



For such conduct to constitute an assault, all of the elements of the offence must be met – including the requirement that the complainant fear the immediate application of force (Slaveski v State of Victoria [2010] VSC 441; R v Knight (1988) A Crim R 314). o

If the accused telephones the complainant and threatens to punch him or her, but it is clear that the threat cannot be carried out immediately (due to the accused’s remote location), there will not be an assault (R v Gabriel (2004) 182 FLR 102. See also Barton v Armstrong [1969] 2 NSWR 451; Wilson v Kuhl [1979] VR 315). [4]

o

A silent telephone call may amount to an assault where it causes fear of immediate violence (R v Ireland [1998] AC 147).

The apprehension does not need to have been reasonable



Although not clear, it seems that the complainant’s apprehension does not need to be reasonable (Macpherson v Beath (1975) 12 SASR 174; White v State of South Australia[2010] SASC 95).



Thus, if the accused intentionally puts in fear of immediate violence an exceptionally timid person known to him or her to be timid, the unreasonableness of the complainant’s fear may not prevent conviction (Macpherson v Beath (1975) 12 SASR 174).

Causing injury offences – Aggravated Assault (more serious kinds of assault) 

Just note here that there is a battery of “causing injury” offences (under crimes act 1958) 

Section 16 Causing serious injury intentionally



Section 17 Causing serious injury recklessly



Section 18 Causing injury intentionally or recklessly



Section 24 Negligently causing serious injury



More than assault — they are assaults that result in injury



These can be classified as forms of “aggravated assault” 



i.e. more serious kinds of assault

Very commonly charged as well

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2.Stalking Section 21A- Crimes Act 1958 

Background: Enacted 1994



Has extra-territorial effect (DOO v Sutcliffe [2001] VSC 43).



The Sections: 

Subsection (1) prohibits stalking,



Subsection (2) defines stalking as:  SUBJECTIVE TEST 

A person stalks another if they engage in a course of conduct which includes certain prohibited types of acts with the in...