Murder

Crimes Act s.3 recognises the crime of murder 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. It is not an essential element that there be an identified body.

The victim must be a human being, i.e. fully born in a living state: R v Hutty [1953] VicLawRp 20, [1953] VLR 338.

There must be an act or omission. The act typically is some form of physical harm especially by weapon, body contact, article, force, substance or infection. The act may be threatened harm: Royall v R [1991] HCA 27, (1991) 172 CLR 378. In principle it seems the act also may be any words, gesture, other encouragement, setting trap, giving false information 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.

The act or omission must cause the death which means substantial and operative cause; it is not necessary that the act or omission be the sole or even the principal cause: Swan v R [2020] HCA 11 (victim reduced to poor mental and physical condition by attack of accused causing victim's son to decide for later injury to victim not to undertake surgery reasonably expected to save life); Royall v R [1991] HCA 27, (1991) 172 CLR 378 (threatened harm, victim fright, attempted self-preservation); Panesar v R [2020] VSCA 79 (on dangerous driving causing death which has same causation element); Robb v R [2016] VSCA 125 (on manslaughter which has same causation element); Baker v R [2010] VSCA 226; R v Withers [2009] VSCA 306.

There must be voluntariness, that is the act or omission 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 trigger or releasing hammer); R v Herodotou [2018] VSCA 253; R v Schaeffer [2005] VSCA 306, (2005) 13 VR 337. The notion of deliberateness is sometimes described as "general" or "basic" intent.

There must be specific intent coinciding with the act or omission. Two of the forms of specific intent are intention to kill and intention to inflict really serious injury: Meyers v R [1997] HCA 43, (1997) 71 ALJR 1488; Baker v R [2010] VSCA 226. The two further forms of specific intent are recklessness as to causing death and 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; DPP Reference No1 of 2019 [2020] VSCA 181 (on recklessly causing serious injury which has 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 but not otherwise defined by law: Jones v R [2020] VSCA 160; Pasznyk v R [2014] VSCA 87. The four forms of specific intent are occasionally as a group still referred to as malice aforethought though this draws on language from past era.

The act or omission 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.

By Voluntary Assisted Dying Act the act or omission must have been of a kind not protected under that Act. This legislation concerns euthanasia, though it does not use the term.

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

Unintentional killing in the course or furtherance of a crime of violence: Crimes Act s.3A. Sometimes referred to as statutory murder or constructive murder. The section defines some alternative elements for murder. It gives an alternative manner of proving murder rather than creating a separate offence of murder: Duca v R [2020] VSCA 209. 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. The other person may be an accomplice or co-offender: Wilio v R [2023] VSCA 88. Some earlier cases were 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. See also R v Ryan and Walker [1966] VicRp 76, [1966] VR 553 of historical importance and concerning 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 the act or omission, 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. An example though legally significant only on sentencing point is R v Guode [2020] HCA 8.


Manslaughter

Crimes Act s.5.

The act or omission 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); Esmaili v The Queen [2020] VSCA 63) "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.

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

Industrial or workplace manslaughter has always existed at law in Victoria as a factual example of the crime of manslaughter due to criminal negligence. Though in the past rarely charged, it is clear enough that by one or more of the categories of duty of care, the crime can be committed in industrial circumstances by act or omission of a natural person including as employer, also by a corporation through act or omission by a natural person who is a directing mind and will: DPP v Downer EDI Pty Ltd [2015] VSCA 287 endnote; R v A C Hatrick Chemicals [1995] VicSC 653, (1995) 152 A Crim R 384 a trial ruling considered to limited extent by Court of Appeal as DPP Reference No 1 of 1996 [1997] VSC 47, (1998) 3 VR 352. Since 1 July 2020, there is also a statutory crime of workplace manslaughter with some difference of definition: Occupational Health and Safety Act ss.39A-39G.

Relationship between manslaughter, child homicide (below) and homicide by firearm (below): Crimes Act s.5C.


Child homicide

This is a crime created in 2016. 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.


Homicide by firearm

This is a crime created in 2020. Crimes Act s.5B. By discharging a firearm, causing the death of another person in circumstances that constitute manslaughter.


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, (2014) 43 VR 169.

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, (2015) 73 MVR 450; R v De'Zilwa [2002] VSCA 158, (2002) 5 VR 408; 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. 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.

Stephens v R [2016] VSCA 121, (2016) 50 VR 740. Driving will be dangerous where there is ‘some serious breach of the proper conduct of a vehicle so as to be in reality and not speculatively, potentially dangerous to others.’ The driving must have some feature which subjects the public ‘to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by a person who may on occasion drive with less than due care and attention.’ A Court’s assessment of the dangerousness of the driving will be informed by the extent of the risk which the driving created, as well as by the extent of potential harm should the risk materialise.

Panesar v R [2020] VSCA 79 (causation and voluntariness issues).

The causation element requires proof of the relationship of cause between the particularised dangerousness and the death: Kennett v R [2022] VSCA 202.


Arson causing death

By Crimes Act s.197A, the crime is arson as defined in section 197 thereby causing the death of another person. On arson, see further this site notes3.

R v Chambers [2005] VSCA 34, said to be first case of the crime sentenced, refers to creation of the crime in 1997.

The crime does not require proof of intention or recklessness as to causing death, as murder does, and thus cannot be sentenced on the basis of intention or recklessness as to causing death (or any other mental element of murder). A case with evidence arguably sufficient for murder would be expected to be charged as such, as for example R v Smith [2002] VSCA 219 (murder alleging fire as the method).

The crime does not require proof of unlawful and dangerous act or breach of objective standard as required for manslaughter. Yet since it has a higher maximum sentence than manslaughter, it would be expected to be charged instead of manslaughter where both were equally supported by evidence.

Another example is DPP v Sokaluk [2013] VSCA 48, as legal precedent of minor value but its facts of notoriety, subject of book: Chloe Hooper The Arsonist, 2018.

There is a lesser crime of arson in the form of by fire intentionally destroying or damaging property or doing so endangering life, amongst various crimes defined in Crimes Act s.197. See also intentionally or recklessly causing a bushfire: Crimes Act s.201A.


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

Crimes Act sections 319A-319B.

OTHER NON-SEXUAL CRIMES AGAINST THE PERSON

version 8 September 2021

Introduction

Crimes Act sections 15-32.

Most of the crimes below have an element of unlawfulness or being without lawful excuse. 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; not in reasonable crime prevention or arrest and not with consent: see notes1.

Most of the crimes below have an element of causation as with on murder, see above.

Causation is by act. In principle, as with murder or manslaughter, it seems some of the crimes also could be committed by omission though such prosecutions seem not to have occurred.

The act (or omission) must be conscious, voluntary and deliberate, as with murder, see above, also Marijancevic v R [2009] VSCA 135, (2009) 22 VR 576.

Many of the crimes require as an element that there be an injury which is defined in Crimes Act s.15. It means (a) physical injury; or (b) harm to mental health - whether temporary or permanent. Physical injury includes unconsciousness, disfigurement, substantial pain, infection with a disease and an impairment of bodily function. Harm to mental health includes psychological harm but does not include an emotional reaction such as distress, grief, fear or anger unless it results in psychological harm.

Some of the crimes require as an element that the injury be serious which 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. Limb (i) directs attention to the danger created by the injury at the time it is sustained: Sargeant v R [2020] VSCA 45.

Some of the crimes require as a mental element that there be recklessness as to a particular consequence. This means foresight of the probability of the particular consequence, like with the common law applying to murder: DPP Reference No1 of 2019 [2021] HCA 26.

Causing serious injury intentionally in circumstances of gross violence

Crimes Act s.15A; for an example Johns v R [2020] VSCA 135. The crime includes the elements of causing serious injury intentionally as below. In addition it requires an element of circumstances of gross violence which are defined by s.15A (2). They concern matters such as certain planning in advance, acting in company, acting in agreement, planning and use of offensive weapon or firearm and certain circumstances where the other person is incapacitated. The crime has the same maximum sentence as causing serious injury intentionally but there are different bail and sentencing considerations.


Causing serious injury intentionally

Crimes Act s.16. The intention must be to cause serious injury though not necessarily the specific serious injury which has occurred: DPP v Fevaleaki [2006] VSCA 212, (2006) 165 A Crim R 524; R v Westaway [1991] VicSC 143, (1991) 52 A Crim R 336; James v R [2014] HCA 6, (2014) 253 CLR 475.


Causing serious injury recklessly in circumstances of gross violence

Crimes Act s.15B. The crime includes the elements of causing serious injury recklessly as below. In addition it requires an element of circumstances of gross violence defined by s.15B (2) which is analogous to those for the s.15A crime, see above. The crime has the same maximum sentence as causing injury recklessly but there are different bail and sentencing considerations.


Causing serious injury recklessly

Crimes Act s.17.


Causing injury intentionally

Crimes Act s.18.


Causing injury recklessly

As with causing injury intentionally, this crime is from Crimes Act s.18. It has been interpreted that the section creates separate crimes: R v His Honour Judge Hassett [1994] VicSC 765, (1994) 76 A Crim R 19.


Negligently causing serious injury

Crimes Act s.24. Consistently with other crimes of negligence against the person, requires an act or omission by a person with a duty of care which greatly falls short of the standard of care which a reasonable person would have exercised and a high degree of risk that serious injury would follow: Aston v R [2019] VSCA 225; Harrison v R [2015] VSCA 349, (2015) 49 VR 619 ; Gorladenchearau v R [2011] VSCA 432, (2011) 34 VR 149. Cases typically concern driving of a motor vehicle. For parent and child examples see DPP v Weston [2016] VSCA 243 (2015) 48 VR 413; Mok v R [2011] VSCA 247.


Common assault

An indictable crime at common law: R v Patton [1996] VicSC 54 (notes only); [1998] 1 VR 7, recognised by Crimes Act s.320.


Some lower level assault crimes

Summary Offences Act includes 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; R v Dixon-Jenkins [1985] VicSC 45, (1985) 14 A Crim R 372.


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.


Conduct endangering life

Crimes Act s.22.


Conduct endangering serious injury

Crimes Act s.23.


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.


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.

SEXUAL CRIMES

version 27 September 2023

Crimes Act sections 35A-54C. Amendments made by Act 38 of 2022 commenced 30.7.23, Act 47 of 2016 commenced 1.7.17, Act 74 of 2014 commenced 29.6.15, Act 81 of 1991 commenced 1.1.92, Act 8 of 1991 commenced 5.8.91. With alleged crimes preceding or crossing these various commencement dates, this causes complexity. Past versions and amendments of the Crimes Act can be found at AUSTLII here. Within these are provisions for an alleged offence of uncertain date within a range spreading across a change of law date.

Various of the crimes defined, including rape, require proof amongst other elements that the alleged victim did not consent. Applying criminal law fundamentals, this means the prosecution must prove beyond reasonable doubt that the alleged victim did not consent. Consent means free and voluntary agreement: Crimes Act s.36(1).

Section 36AA provides a non-exhaustive listing of numerous circumstances in which a person does not consent. One is that the person does not say or do anything to indicate consent to the act: s.36AA(1)(a). Another is that the person is asleep or unconscious; on the then equivalent provision: Hubbard v R [2020] VSCA 303.

The crimes defined to have an element of lack of consent also have an element of lack of reasonable belief that the person was consenting. Applying criminal law fundamentals, this means the prosecution must, in addition to proving beyond reasonable doubt that the alleged victim did not consent, prove beyond reasonable doubt that the accused did not reasonably believe the person was consenting. This reasonable belief is defined by s.36A (depends on the circumstances etc). The effect of s.36A(2) is that belief that a person was consenting is not reasonable if, within a reasonable time before or at the time the act takes place, the other person does not say or do anything to find out whether the person consents to the act. This was introduced by Act 38 of 2022, earlier law if applicable leaves open the perhaps far-fetched possibility of circumstances where a person so described has reasonable belief in the consent of a non-consenting person.

It has never been law in Victoria that the prosecution fails to prove lack of consent or lack of reasonable belief in consent just because the person did not resist the act verbally or physically and the effect of s.36(2) as introduced by Act 38 of 2022 seems to be no more than to feature that this remains not the law; s.36(3) seems of same kind.

Jury directions which may be available on lack of consent: Jury Directions Act s.46.

Jury directions which may be available on lack of reasonable belief in consent: 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. The meaning of sexual penetration is widened for the crime of compelling sexual penetration (see below) to include an accused causing themself to be sexually penetrated by the other. It is also widened for the sexual crimes against children (see below) to include an accused causing or allowing themself to be sexually penetrated by the other.

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(1). The elements are A intentionally sexually penetrates B, and B does not consent to the penetration, and A does not reasonably believe that B consents to the penetration. Note the further definitions above including s.35A(1) for sexual penetration. There are exceptions for medical or hygienic purposes carried out in good faith: s.48A.

Rape by compelling sexual penetration is a separate crime, defined by Crimes Act s.39. The whole of the s.35A definition of sexual penetration may have relevance.

Sexual assault is defined by Crimes Act s.40. The term assault does not import a necessity for the conduct to be forceful or violent. For common law assault, the slightest touching or putting in fear is enough for the basic act. For these statutory offences it is plain from their definition that the slightest sexual touching is enough though putting in fear is not. Other elements are lack of consent and lack of reasonable belief in consent.

Sexual assault by compelling sexual touching: Crimes Act s.41.

Assault with intent to commit a sexual offence by Crimes Act s.42. The mental element is intent to take part in a sexual act, see further s.35C.

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. Various family relationships are included.

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

The objectives and guiding principles in interpreting and applying the sexual offences parts of the Crimes Act are stated by s.37A and s.37B.

Sexual crimes against children

All of the sexual crimes above apply equally to alleged offending against children, in practice incest in particular being charged.

With alleged offending against children, crimes which have lack of consent and lack reasonable belief in consent as elements are by policy uncommonly charged, presumably to avoid inappropriate disputation with children as to whether there was consent.

There are sexual crimes defined exclusively for offending against children and which do not have lack of consent as an element to be proved. For these crimes, there is no general definition of child by age; each of the crimes specifies the age group with which it is concerned. None of the crimes specifies an age more than 17. On the purpose of having such crimes (and applicable sentencing considerations): Clarkson v R [2011] VSCA 157, (2011) 32 VR 361. Where there is evidence of lack of consent, the charging of such a crime instead of one which has lack of consent as an element precludes the lack of consent being an aggravating factor on sentence unless the crime charged has the same maximum sentence: Osborne v R [2018] VSCA 160.

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. Only some are listed below.

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

Sexual penetration of a child aged 16 or 17 under care, supervision or authority: Crimes Act s.49C.

Sexual assault of a child under 16: Crimes Act s.49D.

Sexual activity in the presence of a child under 16: Crimes Act s.49F.

Crimes Act s.49J(1) defines a crime of persistent sexual abuse of child under the age of 16 (earlier legislation had a 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 s.37. One is failure by a person in authority to protect a child from a sexual offence: s.49O.

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; Barrow (a pseudonym) v R [2020] VSCA 102.

Delay in making a complaint: Jury Directions Act sections 48-54. It is prohibited to state that complainants who delay in making a complaint or do not make a complaint are, as a class, less credible or require more careful scrutiny than other complainants: s.51. 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 forensic disadvantage to the accused, directions to the jury, if sought are under Jury Directions Act sections 38-40; Robbins (a pseudonym) v R [2017] VSCA 288. The provisions preclude the warning going to the extent of danger or unsafeness in convicting. Such delay is not to be used to discount exculpatory evidence: Pell v R [2020] HCA 12.

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

Distress displayed by a complainant shortly after an alleged sexual offence can in certain circumstances be a form of circumstantial evidence that independently supports a complainant’s account: Nimely (a pseudonym) v R [2023] VSCA 20; Paull v R [2021] VSCA 339.

There are qualified limits to the permitted cross-examination and evidence of sexual complainants including as to sexual conduct of complainant generally: Criminal Procedure Act sections 338-352; Gutierrez v R [2018] VSCA 270; 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.


Mandatory reporting and offences of failure to report

It is an offence for a mandatory reporter to fail to report a belief on reasonable grounds that that a child is in need of protection on various defined grounds of need: Children, Youth and Families Act s.184. One ground of need is that the child has suffered, or is likely to suffer, significant harm as a result of sexual abuse and the child's parents have not protected, or are unlikely to protect, the child from harm of that type. A list of mandatory reporters is defined: s.182. An addition 2020 to the s.182 list are persons in a religious ministry, even if the person's belief was first formed before: s.184(3A).

It is an offence for a person over 18 years to fail to disclose to a police officer a reasonable belief that a sexual offence has been committed in Victoria against a child under the age of 16 years by another person of or over the age of 18 years: Crimes Act s.327.



FAMILY VIOLENCE

version 4 January 2022

Legislation and government action in Victoria generally have come to use the term "family violence" with wide definition. 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 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.

Don Just
Barrister Victorian Bar retired list
Melbourne, Australia