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 14 November 2017


MURDER

Crimes Act s.3 recognises the crime and provides penalty but the definition of basic murder 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 act typically is infliction of physical harm. Or the act may be threatened harm: Royall v R [1991] HCA 27, (1991) 172 CLR 378. Or in principle it seems the act may be any words, gesture, giving information, implied encouragement or of any other positive form, but of these it is difficult to find actual past court cases. 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 mentions in R v Taber [2002] NSWSC 1239, and for a recognition of the possibility, R v Lawford [1993] SASC 4247, (1993) 69 A Crim R 115. Whichever form of conduct, 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 (threatened harm, victim fright and attempted self-preservation), also Robb v R [2016] VSCA 125 (on a charge of manslaughter which has the same causation element).

The conduct must be conscious, voluntary and deliberate; it cannot be an unwilled act: Koani v R [2017] HCA 42 (possible scenario of gun discharged without deliberately pulling the trigger or releasing the hammer); 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. Two of the forms of specific intent are intention to kill or intention 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 two further forms of specific intent are recklessness as to causing death or recklessness as to causing 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 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. (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.) The expressions '‘really serious injury" and "grievous bodily harm" are interchangeable: Pasznyk v R [2014] VSCA 87. The four forms of specific intent are still occasionally as a group referred to as "malice aforethought" drawing on language from past era.

The accused must have been acting not in reasonable self-defence, defence of others or of property; not under duress; not in sudden or extraordinary emergency; and not 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.

A different kind 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.


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.


Manslaughter

Crimes Act s.5.

The conduct elements are as for murder, including the requirement that the conduct be conscious, voluntary and deliberate. There may be by statute some slight extension of causation, see below. Otherwise, the distinction from murder is that instead of specific intent, it is enough for manslaughter 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. There is a causation provision concerning single punch or strike to any part of a person's head or neck that perhaps in application would occasionally extend that of general principles of causation: Crimes Act s.4A(4). "Unlawful" means contrary to the criminal law. "Dangerous" 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" means that 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 arise 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, [unlawful] 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] VicRp 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). For manslaughter due to criminal negligence, 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: Bouch v R [2017] VSCA 86; R v Nydam above. The existence of a duty of care is limited; without being an exhaustive list, it is owed to another from a statute imposing 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 from deliberate wrongful act placing another in peril or in danger, and from persons living together as domestic partners when one is rendered helpless through illness or injury: Reid v R above.

The accused must have been acting not in reasonable self-defence, defence of others or of property; not under duress; not in sudden or extraordinary emergency; and not in reasonable crime prevention or arrest: 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.

Another basis for manslaughter is for the survivor of a suicide pact who kills deceased party: Crimes Act s.6B.


Child homicide

Crimes Act s.5A. Killing a child who is under the age of 6 years in circumstances that otherwise would constitute manslaughter. DPP v Woodford [2017] VSCA 312.


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.

The culpable driving specified in s.318(2)(c) is 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 under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle: DPP v Trueman [2017] VSCA 24 (sentence); Brayshaw v R [2011] VSCA 233 (sentence).

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
sections 319A-319B.



> Other non-sexual crimes against the person

2 March 2018

Crimes Act sections 15-32. The accused must have been acting not in reasonable self-defence, defence of others or of property; not under duress; not in sudden or extraordinary emergency; and not in reasonable crime prevention or arrest: see notes1. On causation elements, see on murder, above. Many of the offences require as an element that there be an injury which means (a) physical injury or (b) harm to mental health whether temporary or permanent; and physical injury includes unconsciousness, disfigurement, substantial pain, infection with a disease and an impairment of bodily function: Crimes Act s.15.

Causing serious injury intentionally: Crimes Act s.16. Serious injury means (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: Crimes Act s.15. The intention must be to cause serious injury: DPP v Fevaleaki [2006] VSCA 212, (2006) 165 A Crim R 524.

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

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

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; 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: Crimes Act s.195H.

Violent disorder: Crimes Act s.195I.

False 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 14 March 2018

Crimes Act sections 34B-54C. Various amendments made by Act 47 of 2016 commenced 1.7.17, 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 and others, this may cause complexity especially with what are now commonly called historical crimes. Past versions and amendments of the Crimes Act can be found at AUSTLII here.
.
Various of the crimes defined, including rape, have elements to do with lack of consent. Consent means free agreement: Crimes Act s.36; though under previous provision SWS v R [2012] VSCA 249. Section 36 provides an inclusive listing of circumstances in which a person does not consent. Jury directions on lack of consent: Jury Directions Act 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 s.36A and s.36B (effect of intoxication). Jury directions on reasonable belief: Jury Directions Act s.47.

Various of the crimes defined have elements to do with sexual penetration as to which see Crimes Act s.35A.

Various of the crimes defined have elements to do with sexual touching as to which see Crimes Act s.35B.

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 sections 50A-50K. Lack of consent is not an element to be proved. Various family relationships are included..

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


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 49A to 49ZC define various sexual crimes exclusively against children, defined as person under 16, or with some crimes, aged 16 or 17 under care, supervision or authority.

Sexual penetration of a child under 16 is defined by Crimes Act s.49B. Defences apply s.49V and s 49W. For child under 12: Crimes Act s.49A.

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.

Crimes Act s.49J(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.49J(4) 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). 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. There is provision for a jury not satisfied of a s.49J(1) charge to be satisfied of one or more instances of various sexual crimes: Crimes Act s.49J(7).

Crimes Act sections 49C-49O define numerous crimes with an element of the alleged victim being under care, supervision or authority defined by Crimes Act s.37.

Child abuse material: Crimes Act sections 51A-51Y.


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 sections 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 sections 38-40. The provisions preclude the warning going to the extent of danger or unsafeness in convicting.

Differences in complainant's account: Jury Directions Act sections 54A-54D.

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.

There are qualified limits to the permitted cross-examination and evidence of sexual compalinants including as to sexual conduct of complainant generally: Criminal Procedure Act sections 338-352; 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 1 November 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 committed in circumstances of family violence with the courts imposing sentences on proved offenders, see further sentencing notes. Typically the alleged perpetrator of a crime in circumstances of family violence is the offender alone. Sometimes issues arise whether an alleged offender has acted in response to family violence by the victim, concerning which attention is given by laws regarding criminal defences of self-defence and duress: see notes 1.


THE FAMILY VIOLENCE INTERVENTION COURT PROCESS

By Family Violence Protection Act, a separate system of law exists, mainly non-criminal, with a view to preventing further acts of family violence. It operates regardless of whether there have been criminal law proceedings.

The Act
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: sections 5-7. Many of the behaviours it defines would also break general Victoria criminal laws especially those against violence and stalking 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: sections 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 process is not criminal; the powers and procedures are civil in nature.

This page is www.justd.com/notes2.htm

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

www.justd.com

1998-2018 Don Just
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