Notes

Criminal law & process 2

Victoria Australia



Don Just
barrister Melbourne


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Homicide and other causing of death

Other non-sexual crimes against the person

Sexual crimes

Family violence

 

> Homicide and other causing of death

version 22 June 2017


MURDER

Crimes Act s.3 recognises the crime and provides penalty but the definition for Victoria is largely from common law.

There must be a death. For the purposes of the law of Victoria, a person has died when there has occurred - (a) irreversible cessation of circulation of blood in the body of the person; or (b) irreversible cessation of all function of the brain of the person: Human Tissue Act s.41.

The victim must be a human being, i.e. fully born in a living state: R v Hutty [1953] VicLawRp 48, [1953] VLR 338.

There must be conduct, whether by act or omission, and it must cause the death. The required causation is a substantial and operative cause; it is not necessary that the conduct be the sole or even the principal cause: R v Withers [2009] VSCA 306; Royall v R [1991] HCA 27, (1991) 172 CLR 378, also Robb v R [2016] VSCA 125 (on a charge of manslaughter for which the causation element is the same). For omission, in addition a duty of care must be shown as for manslaughter by negligence, see below. Murder cases based on omission are rare; for some from outside Victoria see those mentioned in R v Taber [2002] NSWSC 1239, and for a recognition of the possibility, see R v Lawford [1993] SASC 4247, (1993) 69 A Crim R 115.

The conduct must be conscious, voluntary and deliberate: R v Schaeffer [2005] VSCA 306, (2005) 13 VR 337.

The conduct must be intended ("general intent").

There must be "specific intent" coinciding with the conduct. This may be an intention to kill or to inflict really serious injury: Meyers v R [1997] HCA 43, (1997) 71 ALJR 1488; Dookheea v R [2016] VSCA 67; Baker v R [2010] VSCA 226. The expressions '‘really serious injury" and "grievous bodily harm" are interchangeable: Pasznyk v R [2014] VSCA 87. Alternatively this may be recklessness as to causing death or really serious injury. Recklessness requires that the accused foresees the probable consequences of the act; "probable" means likely to happen: R v Crabbe [1985] HCA 22, (1985) 156 CLR 464, also Ignatova v R [2010] VSCA 263 (on a charge of causing serious injury recklessly for which has the same recklessness element). The courts are reluctant to permit reckless murder to be left to a jury: R v Barrett [2007] VSCA 95, (2007) 16 VR 240. But a case can proceed so: e.g. Hegarty v R [2012] VSCA 252.

Another form of murder is constructive murder: Crimes Act s.3A; DPP v Perry [2016] VSCA 152; Zaim v R [2011] VSCA 80; R v Galas [2007] VSCA 304, (2007) 18 VR 205; R v Butcher [1986] VicRp 4, [1986] VR 43. It applies to a person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more. See also R v Ryan and Walker [1966] VicRp 76, [1966] VR 553, a case mainly now of historical importance which concerned a related felony murder rule at common law now replaced.

The accused must have been acting not in reasonable self-defence, defence of others or of property, nor under duress, nor in sudden or extraordinary emergency, nor in reasonable crime prevention or arrest: see notes1.

The conduct must have been not the crime of infanticide: R v Hutty [1953] VicLawRp 48, [1953] VLR 338.

For attempted murder, intent to kill must be proved: Alister v R [1984] HCA 85, (1984) 154 CLR 404; R v Nguyen [2010] HCA 38, (2010) 242 CLR 491.


Manslaughter

Crimes Act s.5.

The conduct elements are as for murder. The distinction from murder is that instead of specific intent it is enough that there be breach of objective standards either that the act was unlawful and dangerous or that it was criminally negligent.

Manslaughter due to unlawful and dangerous act: Burns v R [2012] HCA 35, (2012) 246 CLR 334; Withers v R (No 2) [2010] VSCA 151. An unlawful act is one which is contrary to the criminal law. Dangerous acts include a single punch or strike delivered to any part of a person's head or neck which itself causes an injury to the head or neck: Crimes Act s.4A. Otherwise dangerous act requires that the circumstances be such that a reasonable person in the accused's position, performing the very act which the accused performed, would have realised exposed the victim to an appreciable risk of serious injury. It is observed in Withers (No2) that in the reported cases the most common examples of unlawful and dangerous act arose out of various forms of assault with examples also found that arose out of attempted assault, attempted robbery, unlawful wounding, burglary, unlawful administration of drugs, arson, abortion, and discharging a firearm in a public place.

Manslaughter due to criminal negligence. May be by act of which some examples are R v Osip [2000] VSCA 237, (2000) 2 VR 595; R v Nydam [1977] VicRp 50, [1977] VR 430. Or may be by omission of which some examples are Reid v R [2010] VSCA 234, (2010) 29 VR 446; R v Clarke [1959] VR 84, [1959] VR 645; R v Russell [1933] VicRp 7, [1933] VLR 59 (in the case one of possible bases for guilt), see also the unsuccessful prosecution in R v Rao [1999] ACTSC 132 later in name of victim Joe Cinque subject of popular literature and cinema, associated with R v Singh [1999] ACTSC 32 decided on different basis. Criminal negligence is breach of a duty of care which falls so greatly short of the standard of care which a reasonable person would exercise in the circumstances, and involves such a high risk of causing death or really serious injury to the deceased, as to merit criminal punishment. The existence of a duty of care is limited; without being an exhaustive list, it is owed to another where a statute imposes the duty, from a certain status relationship, from a contract, or from the voluntary assumption of the care of another so secluding a helpless person as to prevent others from rendering aid: Burns v R [2012] HCA 35, (2012) 246 CLR 334 (French CJ). The duty also arises where a person by deliberate wrongful act places another in peril or in danger, and where persons live together as domestic partners and one of them is rendered helpless through illness or injury: Reid v R above.

The survivor of a suicide pact who kills deceased party is guilty of manslaughter: Crimes Act s.6B.

The accused must have been acting not in reasonable self-defence, defence of others or of property, nor under duress, nor in sudden or extraordinary emergency, nor in reasonable crime prevention or arrest, nor with consent: see notes1. In probably all the circumstances that these issues could arise in the context of manslaughter, it would be as negation of the unlawfulness element of manslaughter due to unlawful and dangerous act.

The prosecution case of murder or manslaughter may be put in several ways involving different elements and it is not necessary that, before convicting, the jury be satisfied of guilt in the one way: Wilson v R [2016] VSCA 62.


Child homicide

Crimes Act s.5A. Killing a child who is under the age of 6 years in circumstances that otherwise would constitute manslaughter.


Infanticide

Crimes Act s.6. Is a woman causing death of her child under in circumstances that otherwise would constitute murder where at the time of carrying out the conduct, the balance of her mind is disturbed because of her not having fully recovered from the effect of giving birth to that child within the preceding 2 years; or a disorder consequent on her giving birth to that child within the preceding 2 years.


Culpable driving causing death

Crimes Act s.318. Consistently with general principles of actus reus, the relevant driving must be voluntary in the legal sense: Jiminez v R [1992] HCA 14, (1992) 173 CLR 572 (not voluntary, driver fell asleep and there was little in the evidence to support a finding that he had felt drowsy or that he had reason to believe that he was tired)

The culpable driving specified in s.318(2)(a) is recklessly, that is to say, a person consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his (or her) driving: R v Pasznyk [2014] VSCA 87.

The culpable driving specified in s.318(2)(b) is gross negligence: Bouch v R [2017] VSCA 86; Dunkley-Price v R [2015] VSCA 310; R v De'Zilwa [2002] VSCA 158, (2002) 5 VR 408; R v Wright [1999] VSCA 145, [1999] 3 VR 355; R v Shields [1981] VicRp 68, [1981] VR 717. It is necessary that the prosecution establish a causal link between the gross negligence and the death of the victim: R v Dickinson [2007] VSCA 111; R v Heron [2003] VSCA 76. It is also necessary that the trial judge identify to the jury the conduct of the accused upon which the Crown relies to prove the crime: R v Poduska [2008] VSCA 147. . By s.318(2A) without limiting subsection (2)(b) negligence may be established by proving that (a) a person drove a motor vehicle when fatigued to such an extent that he or she knew, or ought to have known, that there was an appreciable risk of him or her falling asleep while driving or of losing control of the vehicle; and (b) by so driving the motor vehicle the person failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case. It is questionable whether s.318(2A) on strict analysis adds to the law otherwise existing; possibly it has value to safeguard against erroneous understanding of the Jiminez case above.

Where the culpable driving alleged is that specified in s.318(2)(c) of driving whilst under the influence of alcohol so as to be incapable of having proper control of the motor vehicle, it is not necessary that the prosecution establish a causal link between the effects of the alcohol upon the driver and the death of the victim: R v Ciantar [2006] VSCA 263, (2006) 16 VR 26; R v Feketa [1982] VicSC 198, (1982) 10 A Crim R 287.

The culpable driving specified in s.318(2)(d) is of driving whilst under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle: Brayshaw v R [2011] VSCA 233.

By s.321(3) indictment must specify the form of culpability within the meaning of s.318(2). The prosecution is not precluded from pleading alternative or mutually exclusive negligent acts or omissions; however the jury must be directed of the need in order to convict to be unanimous about at least one of the forms: Wells v R (No 2) [2010] VSCA 294; R v Beach [1994] VicSC 627, (1994) 75 A Crim R 447.


Dangerous driving causing death

Crimes Act s.319; King v R [2012] HCA 24, (2012) 245 CLR 588.


Arson causing death

Crimes Act s.197A.


Failure to control dangerous, menacing or restricted breed dog that kills person

Crimes Act
ss.319A-319B.



> Other non-sexual crimes against the person

11 June 2017

Crimes Act sections 15-32. For proof, it is necessary the accused have been acting not in reasonable self-defence, defence of others or of property, nor under duress, nor in sudden or extraordinary emergency, nor in reasonable crime prevention or arrest, nor in some circumstances of consent: see notes1. On causation elements, see on murder, above.


Causing serious injury intentionally in circumstances of gross violence
Crimes Act s.15A.

Causing serious injury recklessly in circumstances of gross violence: Crimes Act s.15B.

Causing serious injury intentionally: Crimes Act s.16. The intention must be to cause serious injury: DPP v Fevaleaki [2006] VSCA 212, (2006) 165 A Crim R 524.

Causing serious injury recklessly. Crimes Act s.17. The recklessness relies on common law meaning as for murder: Ignatova v R [2010] VSCA 263; R v Campbell [1995] VSCA 186, [1997] 2 VR 576.

Causing injury intentionally or recklessly: Crimes Act s.18. These are separate crimes: R v His Honour Judge Hassett [1994] VicSC 765, (1994) 76 A Crim R 19; DPP v Williams [1993] VicRp 15, [1993] 1 VR 238.

Negligently causing serious injury: Crimes Act s.24. Consistently with other crimes of negligence against the person, requires an act or omission which involves great falling short of the standard of care which a reasonable person would have exercised and a high degree of risk that serious injury would follow: Harrison v R [2015] VSCA 349; Gorladenchearau v R [2011] VSCA 432; (seemingly a further requirement that the conduct merits punishment no longer applies by analogy with Bouch v R [2017] VSCA 86 on culpable driving by negligence). Cases typically concern driving of a motor vehicle.

Common assault as an indictable crime at common law: R v Patton [1998] 1 VR 7, recognised by Crimes Act s.320.

Some lower level assault crimes are defined by Summary Offences Act including s.23 assault, s24 aggravated assault, s.51 assaulting, etc. emergency workers, custodial officers or local authority staff on duty, s.51A assaulting registered health practitioners. These are primarily within Magistrates' Court jurisdiction.

Administering certain substances: Crimes Act s.19.

Threat to kill (Crimes Act s.20) and threat to inflict serious injury (Crimes Act s.21); R v Dixon-Jenkins [1985] VicSC 45, (1985) 14 A Crim R 372.

Extortion with threat to kill (Crimes Act s.27).

Extortion with threat to destroy property etc (Crimes Act s.28).

Stalking: Crimes Act s.21A; R v Anders [2009] VSCA 7, (2009) 193 A Crim R 202; R v Hoang [2007] VSCA 117, (2007) 16 VR 369; Nadarajamoorthy v Moreton [2003] VSC 283; Berlyn v Brouskos [2002] VSC 377; DPP v Sutcliffe [2001] VSC 43.

Conduct endangering life: Crimes Act s.22. A form of reckless endangerment. The subjective mental element is foresight that placing another in danger of death was a probable consequence of the conduct in the surrounding circumstances and the objective mental element is that a reasonable person in the position of the accused, engaging in the very conduct in which the accused engaged and in the same circumstances, would have realised that they had placed another in danger of death: Aggelidis v R [2014] VSCA 6; R v Abdul-Rasool [2008] VSCA 13, (2008) 18 VR 586.

Conduct endangering serious injury: Crimes Act s.23. A form of reckless endangerment. The mental elements are as for conduct endangering life save that the consequence is instead serious injury: R v Wilson [2005] VSCA 78.

Dangerous driving causing serious injury: Crimes Act s.319.

Affray: a crime at common law: DPP v Russell [2014] VSCA 308; Paisley v R [2012] VSCA 79; R v King [2007] VSCA 263; DPP v Johnston [2004] VSCA 150, (2004) 10 VR 85, recognised by Crimes Act s.320.

Unlawful imprisonment: a crime at common law defined as the intentional and unlawful restraint of the liberty of another person against that person’s will: Paton v R [2011] VSCA 72, recognised by Crimes Act s.320.



> Sexual crimes

version 11 June 2017

Crimes Act sections 34-62. Various amendments made by Act 74 of 2014 commenced 29.6.15, Act 8 of 1991 commenced 5.8.91 and Act 81 of 1991 commenced 1.1.92. With alleged crimes preceding or crossing these various commencement dates, this may cause complexity.

Various of the crimes defined, including rape, have elements to do with lack of consent. Consent means free agreement: Crimes Act s.34C; though under previous provision SWS v R [2012] VSCA 249. Section 34C provides an inclusive listing of circumstances in which a person does not consent. Jury directions on lack of consent: Jury Directions Act 2015 s.46.

The crimes defined to have elements to do with lack of consent also have an element to do with reasonable belief of the accused that the other person is not consenting: Crimes Act ss.37G and 37H (effect of intoxication). Jury directions on reasonable belief: Jury Directions Act 2015 s.47.

Various of the crimes defined have elements to do with sexual penetration as to which see Crimes Act s.37D.

Various of the crimes defined have elements to do with sexual touching as to which see Crimes Act s.37E.

Rape is defined by Crimes Act s.38. Rape by compelling penetration is defined by Crimes Act s.39.

Sexual assault is defined by Crimes Act s.40, sexual assault by compelling sexual touching by s.41 and assault with intent to commit a sexual offence by s.42.

Threat to commit a sexual offence is defined by Crimes Act s.43.

Incest is defined by Crimes Act s.44. Lack of consent is not an element to be proved. Various family relationships are included. One is where the victim was the child of the offender’s de facto spouse: s.35; Sutton (a pseudonym) v R [2015] VSCA 251.

Various sexual crimes against persons with a cognitive impairment: Crimes Act sections 50-52.


SEXUAL CRIMES AGAINST CHILDREN

All of the sexual crimes above apply equally to offending against children, in practice incest in particular being charged. In addition there are sexual crimes defined exclusively for offending against children and which do not have lack of consent as an element to be proved.

Crimes Act sections 45 to 58 define various of sexual crimes exclusively against children, defined as person under 16, or with some crimes, under 18.

Sexual penetration of a child under 16 is defined by Crimes Act s.45, see further R v Deblasis [2007] VSCA 297; R v Mark [2006] VSCA 251. For child 16 or 17: Crimes Act s.48.

Indecent act with child under 16 is defined by Crimes Act s.47, see further SLJ v R [2013] VSCA 193; R v ADJ [2005] VSCA 102, (2005) 153 A Crim R 324. For child 16 or 17: Crimes Act s.49.

Crimes Act s.47A(1) defines a crime of persistent sexual abuse of child under the age of 16 (an earlier form of the legislation called the crime maintaining a sexual relationship with a child under 16 years). It requires proof of three occasions. It is not sufficient to prove three acts committed in one episode; there needs to be clear separation in time or circumstance: Tognolini v R [2011] VSCA 113. By s.47A(3), for the 47A(1) crime it is not necessary the prosecution prove the act with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted by that act instead of an offence against sub-section (1). For s.47A, general evidence of on-going conduct is not sufficient to prove occasions: CRR v R [2011] VSCA 142; REE v R [2010] VSCA 124; R v SLJ [2010] VSCA 16, (2010) 24 VR 372; R v Sobevski [2004] VSCA 216, (2004) 150 A Crim R 355. It is not open to proceed upon both a s.47A count and counts for individual occasions relied upon in its support: R v RNT [2009] VSCA 137; R v GJB [2002] VSCA 54, (2002) 4 VR 355.

Crimes Act sections 48, 49 and 49B define crimes with an element of the alleged victim being under care, supervision or authority, considered in Mark Little (a pseudonym) v R [2015] VSCA 62; Lydgate (a pseudonym) v R [2014] VSCA 144.

Child pornography: Crimes Act ss.67A-70AA which expressly take some of their meaning from Classification (Publications, Films and Computer Games) Act (Cth).


SEXUAL CRIMES: EVIDENCE AND PROCEDURE

The admissibility for evidence of recent complaint by a sexual complainant is under the general provisions Evidence Act s.66, s.137 ; ISJ v R [2012] VSCA 321; GBF v R [2010] VSCA 135. For jury directions see: Criminal Procedure Act s.377.

Delay in making a complaint: Jury Directions Act 2015 ss.48-54. Provision for evidence of specialised opinion concerning delay and other matters: Criminal Procedure Act s.388.

If delay in making complaint or in prosecution has caused significant forensic disadvantage to the accused, directions to the jury, if sought are under Jury Directions Act 2015 sections 38-40. The provisions preclude the warning going to the extent of danger or unsafeness in convicting.

Evidence of distress of complainant may be admissible as a type of circumstantial evidence and can be described as post-offence conduct (albeit on the part of the victim): Flora v R [2013] VSCA 192.

In R v Storey and Georgiou [1977] VicSC 424, evidence of prior virginity of a complainant was held admissible as going to lack of consent.

Cross-examination and evidence of prior sexual conduct of complainant generally is permitted only by leave available for limited purposes: Criminal Procedure Act ss.341-352; Lancaster v R [2014] VSCA 333, (2014) 44 VR 820; Roberts v R [2012] VSCA 313.

Confidential communications to medical practitioner or counsellor: Evidence (Miscellaneous Provisions) Act sections 32AB-32G; Todd (a Pseudonym) v R [2016] VSCA 29.



> Family violence

version 11 June 2017

Legislation and government action in Victoria generally have come to use the term "family violence" with wide definition. A Royal Commission into Family Violence reported in 2016. The term "domestic violence" is often used in essentially the same manner as for instance by Domestic Violence Resource Centre Victoria.

The many criminal laws against violence outlined above on this page, especially from Crimes Act and Summary Offences Act, often are alleged broken in circumstances of family violence with the courts imposing sentences on proved offenders, see further sentencing notes.

By Family Violence Protection Act, a separate system of law exists with a view to preventing further acts of family violence regardless of whether there have been criminal law proceedings. It provides powers to the Magistrates' Court of Victoria, see familyviolence.courts.vic.gov.au, and the Children's Court to make family violence intervention orders, also safety notices and interim intervention orders. The purposes of the Act are to (a) maximise safety for children and adults who have experienced family violence; and (b) prevent and reduce family violence to the greatest extent possible; and (c) promote the accountability of perpetrators of family violence for their actions: s.1.Family violence is widely defined: ss.5-7. Many of the behaviours it defines would also break general Victoria criminal laws especially those against violence but it includes much more which often would not do so such as various forms of economic abuse, and emotional or psychological abuse. Family member is widely defined: ss.8-10. There are extensive police powers granted in support. There are summary criminal offences defined which concern breaches of orders and notices. Amongst these is s.123 contravention of family violence intervention order. Otherwise this legislation is not criminal; the powers and procedures are civil in nature.

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page author
Don Just barrister
of Victorian Bar
Melbourne, Victoria, Australia

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1998-2017 Don Just
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