Notes
C
riminal law & process 3

Victoria Australia



Don Just

barrister Melbourne


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Attempted crimes

Conspiracy

Criminal damage to property

Drugs

Incitement

Misconduct in public office

Perjury

Perverting the course of justice

Public Nuisance

Slavery

Terrorism

Theft, obtainings by deception, robbery, burglary, handling stolen goods etc

Treason

Urging violence, sedition, criminal defamation, vilification

 

> Attempted crimes

version 9 April 2018

A person who attempts to commit an indictable offence is guilty of the indictable offence of attempting to commit that offence.

The main Victoria provisions are Crimes Act ss.321M-321S.

A person is not guilty of attempting to commit an offence unless the conduct of the person is (a) more than merely preparatory to the commission of the offence; and (b) immediately and not remotely connected with the commission of the offence. On immediate and not remote connection: Neal v R [2011] VSCA 172; Iliopoulos v R [2017] VSCA 384.

For a person to be guilty of attempting to commit an offence, the person must intend that the offence the subject of the attempt be committed; and intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time the offence is to take place (varied slightly concenring some sexual offnces).

A person may be guilty of attempting to commit an offence despite the existence of facts of which he or she is unaware which make the commission of the offence attempted impossible.




> Conspiracy

version 11 June 2017

In Victoria, Crimes Act s.321F abolishes the common law crime of conspiracy but preserves the separate common law crimes of conspiracy to cheat and defraud and conspiracy to defraud. A statutory crime of conspiracy is defined by s.321:
(1) Subject to this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which will involve the commission of an offence by one or more of the parties to the agreement, he is guilty of the indictable offence of conspiracy to commit that offence.
(2) For a person to be guilty under sub-section (1) of conspiracy to commit a particular offence both he and at least one other party to the agreement--
(a) must intend that the offence the subject of the agreement be committed; and
(b) must intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time when the conduct constituting the offence is to take place.

It is sufficient if it is agreed that one or more of the parties are to be involved in the commission of that offence; there is no requirement that each party must intend to play some active part in the commission of the agreed offence: Rolls v R [2011] VSCA 401.

Agreements to commit an offence outside Victoria are included: s.321A; Re Hamilton-Byrne [1995] VicRp 8, [1995] 1 VR 129. The acquittal of an alleged co-conspirator is inconsequential unless inconsistent: s.321B; R v Darby [1982] HCA 32, (1982) 148 CLR 668.

If the prosecution believes it has effective count for a substantive offence then it should proceed with those counts. If there is some real basis for doubting that the offence had been committed there may perhaps be justification in alleging a conspiracy. Generally speaking, it is undesirable that conspiracy should be charged when a substantive offence has been committed and there is a sufficient and effective count that this offence has been committed. Hoar v R [1981] HCA 67, (1981) 148 CLR 32.

As to common law conspiracy to defraud under Victorian law, see R v Walsh [2002] VSCA 98, (2002) 131 A Crim R 299; R v Walsh and Harney [1984] VicRp 39, [1984] VR 474. As to extra-territoriality of common law conspiracy to defraud, see Lipohar v R [1999] HCA 65, (1999) 200 CLR 48. The requirement of nexus should be liberally applied; a real connection with the jurisdiction will suffice. This seems to displace a narrower view of extra-territoriality taken in Re Hamilton-Byrne above.

For presentment of conspiracy, conspiracy to cheat and defraud or conspiracy to defraud, the approval of the Director of Public Prosecutions is required: s.321(4), s.321F(4).

Another statutory crime is Drugs, Poisons and Controlled Substances Act s.79, conspiring to traffick, cultivate or possess. The meaning and proof of this conspiracy comes from the common law. It is an alternative to proceeding by the Crimes Act: R v Pepe [2000] VSCA 208, (2000) 2 VR 412.

A leading case for common law conspiracy is Gerakiteys v R [1984] HCA 8, (1984) 153 CLR 317. The idea is that a conspiracy is complete at a particular instant. Others may later join it. In Victoria, practice often is to conceive of conspiracy as continuing from its commencing instant to its cessation i.e. between specified dates though for sentencing purposes, the culpability of the later joiner on typical facts it seems should be largely or entirely confined to his or her actual participation. Others however who join to only part of the agreement join a fresh conspiracy.

Although "overt acts" are commonly particularised they are not themselves component elements of the crime; they merely evidence it: R v Caldwell [2009] VSCA 41, (2009) 22 VR 93; R v Theophanous [2003] VSCA 78, (2003) 141 A Crim R 216.

The words and acts of an alleged conspirator in furtherance of the conspiracy in absence of another conspirator often will be objectionable hearsay as against that other conspirator. The co-conspirator's rule of evidence is that, once the foundation that there was a conspiracy is on reasonable evidence laid to the satisfaction of the trial judge, such words and acts of each alleged conspirator in furtherance of the conspiracy as otherwise would be inadmissible hearsay, become admissible: Ahern v R [1988] HCA 39, (1988) 165 CLR 87; Tripodi v R [1961] HCA 22, (1961) 104 CLR 1; Beqiri v R [2017] VSCA 112; Tsang v DPP (Cth) [2011] VSCA 336, (2011) 35 VR 240; R v Perrier [2008] VSCA 97; R v Kaladjic [2005] VSCA 160; R v White [2003] VSCA 174. The finding of foundation is to be on balance of probabilities and is not a matter brought to the attention of the jury: R v Bacash [2001] VSCA 193, (2001) 3 VR 428; R v Atallah [2001] VSCA 194, (2001) 3 VR 437. It follows from a proper understanding of the hearsay objection that the finding of foundation may have regard to evidence of the words of those said to be participants providing regard falls short of depending upon treating the words as evidence of the truth of that which was asserted: Ahern; Benbrika v R [2010] VSCA 281, (2009) 222 FLR 433. Because the rule applies only to statements in furtherance of the agreement, it is usually inapplicable to a mere narrative of some past event: Tripodi at 7; R v Su [1997] 1 VR 1 at 40ff. The rule is equally applicable where the conspiracy has been carried out and the common purpose substantive offence is charged, as for instance in cases of Tripodi and Bacash.

The words and acts of an alleged conspirator in furtherance of the conspiracy in absence of another conspirator will not always be hearsay. Hearsay applies against leading such evidence for the purpose of proving its truth. Thus without resort to the co-conspirator's rule of evidence, it is permissible to use the acts and declarations of each, even in the absence of the other, not as proof of the truth of any assertion or implied assertion of the participation of the other, but for example as facts from which the combination might be inferred, or they may be circumstantial evidence which, along with other evidence, is relevant:: R & the A-G of the Cth v Associated Northern Collieries [1911] HCA 73, (1911) 14 CLR 387; see also Ahern; Bacash; Tsang v DPP (Cth) [2011] VSCA 336, (2011) 255 FLR 41; R v Mbonu [2003] VSCA 52, (2003) 7 VR 273.

For federal crimes, Criminal Code s.11.5; R v Ong [2007] VSCA 206, (2007) 176 A Crim R 366.




> Criminal damage to property

version 6 May 2018

Crimes Act sections 197-247L define many different crimes against property including generally and to computers, aircraft, buildings, mines, railways, signals, buoys etc, and provide for major penalties.

The basic definitions are by s.196 and the first of the crimes defined is destroying or damaging property:s.197, and where by fire (arson), s.197(6), Eade v R [2012] VSCA 142, (2012) 222 A Crim R 93, 100.

If unauthorised by the owner, paintings on property, including kinds sometimes described as street art, tagging and graffiti, are examples amongst such crimes: DPP v Shoan [2007] VSCA 220, (2007) 176 A Crim R 457. It is no different if the painting is words expressing opinion: Magee v Delaney [2012] VSC 407. Also, Graffiti Protection Act defines some summary offences including possessing a graffiti implement with intent to mark graffiti.

Intentionally or recklessly causing a bushfire: Crimes Act s.201A.




> Drugs

version 11 June 2017

Statutory indictable crimes under the Victorian Drugs, Poisons and Controlled Substances Act include drugs of dependence ss.71-71C trafficking offences, ss.72-72B cultivation offences, s.73 possession, s.75 use and s.79 conspiring. There is a long list of "drugs of dependence": see s.4 and Schedule 11 which includes in Part 2 cannabis L (commonly known as marihuana or marijuana) and in Part 3 cocaine, diacetylmorphine (heroin), methylamphetamine (different forms including one commonly known as ice, another as speed), MDMA (commonly known as ecstasy) and tetrahydrocannabinol (or THC, the hallucogenic component of cannabis typically relied upon to allege hashish). Medicinal cannabis is excluded from the list: s.31A, see further Access to Medicinal Cannabis Act.

Other drug crimes are defined by the Commonwealth Customs Act, particularly s.233. See also Criminal Code.

Most of the crimes are defined to require intent or knowledge of the nature of the substance though this usually means of the legal class of the drug in general terms rather than of which particular drug it is: Saad v R [1987] HCA 14, (1987) 61 ALJR 243; DPP Reference No 1 of 2004 [2005] VSCA 172, (2005) 12 VR 299.

For Victoria, the commercial quantities and large commercial quantities are defined by weight of a particular drug or combination of drugs; for cannabis also by number of plants: schedule 11 Parts 2 and 3. "Cannabis" means a plant or any part of a plant of the genus Cannabis L, whether fresh or dried: Drugs, Poisons and Controlled Substances Act s.71 (2); R v Kardogeros [1991] VicRp 19, [1991] 1 VR 269. For the purpose of counting plants to apply the commercial quantity and large commercial quantity definitions, "plant" has its ordinary sense rather than any technical scientific or botanical sense so that expert scientific evidence on the point is inadmissible; "plant" includes a cutting which has struck or established roots, it also includes a dead plant: R v Francis-Wright [2005] VSCA 79, (2005) 11 VR 354. For Victorian commercial quantity and large commercial quantity crimes, it is for prosecution to show that the accused had knowledge of the nature of the substance and of the quantity of the substance at the time of the commission of the offence: R v Luhan [2009] VSCA 30; R v Reed [2008] VSCA 20; R v Callaghan [2007] VSCA 135; R v Garlick [2006] VSCA 127, R v Bui [2005] VSCA 300; DPP Reference No 1 of 2004 above. With cultivating cannabis, if a jury is satisfied beyond reasonable doubt that the accused knew there was a real and significant chance that he or she was cultivating the commercial (or large commercial) quantity, it is open to the jury to infer the requisite intention: R v McKittrick [2008] VSCA 69; R v Page [2008] VSCA 54.

As to trafficking, Drugs, Poisons and Controlled Substance Act section 70 provides
"traffick" in relation to a drug of dependence includes--
(a) prepare a drug of dependence for trafficking;
(b) manufacture a drug of dependence; or
(c) sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence.

This is an inclusive meaning of trafficking. As to any wider meaning, cases which (though considering earlier legislation) generally regarded as applicable are R v Holman [1982] Vic Rp 46, [1982] VR 471 (requires at least activity in a commercial setting, that is to say a setting in which it can be fairly inferred that someone involved is making a profit, participation in the progress of goods from source to consumer and movement of the goods between source and consumer, consumer meaning another person with whom in contact for the purpose of transferring ownership or possession or for taking any step directed to those ends); also R v Elem [1982] VicRp 27, [1982] VR 295; Falconer v Pedersen [1974] VicRp 24,[1974] VR 185. The s.70 notion of possession for sale is considered in R v Bandiera [1999] VSCA 187, [1999] 3 VR 10 and R v Kardogeros [1991] VicRp 19, [1991] VR 269. The trafficking may be of a continuing kind typically known as a "Giretti" count or charge: R v Giretti [1986] VicSC 484, (1986) 24 A Crim R 112; Dang v R [2014] VSCA 49; R v Komljenovic [2006] VSCA 136. Where two accused are joined in a Giretti charge, it is not necessary for the prosecution to establish that they were acting in complicity: nor does the prosecution have to prove that the parties ever met or communicated with each other, or were aware of the identity of the other party: it is sufficient to prove that the parties were both engaged in the alleged trafficking business: Nguyen v R [2015] VSCA 76; R v Lao [2002] VSCA 157; (2002) 5 VR 129. Continuing offences of commercial quantity and large commercial quantity type may rely on the aggregate amount to establish the required quantity but the element of intent as to commercial quantity or large commercial quantity must exist from the commencement of the action: Mustica v R [2011] VSCA 79; R v McCulloch [2009] VSCA 34, (2009) 21 VR 340.

Generally on the concept of possession, see R v Tran [2007] VSCA 164.

If on a s.71 trafficking charge, the prosecution is relying on the “possession for sale” form of trafficking, it is only the saleable weight or number of plants which counts as to the act and intent of the accused: R v Nguyen [2006] VSCA 158; R v Francis-Wright [2005] VSCA 79, (2005) 11 VR 354; R v Coviello [1995] VICSC 173, (1995) 81 A Crim R 293.

Proof is aided by "deeming provisions" based on possession, s.70 "traffickable quantity" and s.73(2). However proof is not aided by s.5 occupation of premises: Momcilovic v R [2011] HCA 34, (2011) 245 CLR 1.

Possession of information and accoutrements of trade as circumstantial proof: see site Notes 1. With drugs, of possession of substance, material, documents or equipment for trafficking: is also a crime of itself: Drugs, Poisons and Controlled Substances Act s.71A.

For supply to a child: s.71B.

Proof of the nature of substances may be by analyst's or botanist's certificate under Drugs, Poisons and Controlled Substances Act s.120. It may also be by evidence of admission if the admitter is shown to have sufficient general knowledge of the substance: Anglim and Cooke v Thomas [1974] VicRp 45, [1974] VR 363. These are not exhaustive of the methods for this proof.

For cultivate: ss.70; 71C; Grozdanov v R [2012] VSCA 94.




> Incitement

version 19 April 2017

Crimes Act sections 321G-321L; R v Massie [1998] VSCA 82, [1999] 1 VR 542; R v Zhong [2003] VSCA 56; (2003) 139 A Crim R 220; and mainly on sentence Smith v R [2014] VSCA 268; R v Natale [2011] VSCA 28.




> Misconduct in public office

version 2 April 2018

A crime at common law, recognised in Victoria by Crimes Act s.320. For long little charged in Australia, it is now revived with demonstrated reach including into the conduct of elected politicians.

The elements of the offence as understood in Victoria are: (1) a public official; (2) in the course of or connected to his public office; (3) wilfully misconduct himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty; (4) without reasonable excuse or justification; and (5) where such misconduct is serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects
: R v Quach [2010] VSCA 106, (2011) 35 VR 71 (police officer obtaining sexual favour from vulnerable person met shortly prior in police work).

Some other Victoria examples are R v Jones pdf [1946] VicLawRp 46, [1946] VLR 300 (government supplies officer, alleged secret profits and corrupt disposals); DPP v Marks [2005] VSCA 277 and R v Bunning [2007] VSCA 205 (police officers accessing police computers to give information to drug dealers); DPP v Armstrong [2007] VSCA 34 (police officer extorting money from cannabis grower for non-prosecution); Soylemez v R [2014] VSCA 23 (prison officer smuggling drugs in).

From NSW, where the common law offence also exists with the elements understood as in Victoria, see Obeid v R [2017] NSWCCA 221 (government minister making representations to a public servant with the intention of securing an outcome which would result in pecuniary benefits to him or his family; convicted and imprisoned) and R v Macdonald [2017] NSWSC 337 (government Minister granting mining exploration licences improperly motivated to benefit private parties; convicted and imprisoned).

With the wilful misconduct element, the Obeid case highlights that
the duty of elected politicians is to act according to what they believe to be in the public interest and the interests of the electorate.




> Perjury

version 11 June 2017

Need for corroboration: R v Holmes [2008] VSCA 128; R v Townley [1986] VicSC 57, (1985) 24 A Crim R 76; Evidence Act s.164. However for an alleged in-court perjury, evidence of the testimony from a person present is capable of being proof: R v Rowley (1825) Ry & Mood 299, 171 ER 1027; R v Munton (1829) 3 Car & P 498, 172 ER 519. Suborning perjury: R v Ritchie [2005] VSCA 166.




> Perverting the course of justice

version 11 June 2017

Is a common law, a crime in Victoria, as also is attempting to pervert the course of justice, both recognised by Crimes Act s.320. Liability hinges on the intention to pervert the course of justice and not upon the perversion of a course of justice already in existence: R v Beckett [2015] HCA 38; Rogerson v R [1992] HCA 25, (1992) 174 CLR 268; Meissner v R [1995] HCA 41, (1995) 184 CLR 132; R v Murphy [1985] HCA 50, (1985) 158 CLR 596; R v Aydin [2005] VSCA 85; R v Walsh [2002] VSCA 98; R v Allan [1995] VicRp 66, [1995] 2 VR 468.




> Public Nuisance

version 11 June 2017

Common law crime recognised by Crimes Act s.320; R v Dixon-Jenkins [1985] VicSC 45, (1985) 14 A Crim R 372 (simulated explosive devices placed in city stores and a restaurant for political motive, as now a statutory terrorism crime, see below). Requires that the accused commit an unlawful act or omit to discharge a legal duty; and thereby endanger the life, health, property, morals, or comfort of the public, or obstruct the public in the exercise of legal rights. The public means a considerable number of persons or section of the public. In addition it seems necessary that the accused know or ought to know (because the means of knowledge are available) that the consequence would be of the defined kind: persuasive UK authority R v Rimmington and Goldstein [2005] UKHL 63.




 > Slavery

version 11 June 2017

Criminal Code (Cth) s. 270.3; Wei Tang v R [2008] HCA 39, (2008) 237 CLR 1; Ho v R [2011] VSCA 344. Includes crimes of possessing a slave and of exercising over a slave any of the other powers attaching to the right of ownership.




> Terrorism

version 26 March 2018

Many of the forms of conduct commonly described as terrorism are, if occurring in Victoria, instances of the general crimes of Victoria law, or in some circumstances of the general crimes of Commonwealth law.

The Victoria Terrorism (Community Protection) Act mainly concerns police powers and preventative detention. It creates some crimes in support of these matters: s.13ZN. Also, it creates a crime of providing documents or information facilitating terrorist acts: s.4B.

Further there is Commonwealth law which defines numerous crimes with terrorism as an element: see Criminal Code in Schedule. This includes certain conduct preparatory to carrying out actual harm such as ordinarily not proscribed by general criminal laws, especially when by an individual alone. One such crime is advocating terrorism: s.80.2C. Another is possession of a thing connected with assistance in a terrorist act: s 101.4(1); DPP (Cth) v Karabegovic [2013] VSCA 380. There are crimes defined concerning membership etc of a terrorist organisation: s 102; Benbrika v R [2010] VSCA 281, (2009) 222 FLR 433. There is a crime of conspiring to do acts in preparation for or planning of terrorist act: s.101.6; DPP (Cth) v Besim [2017] VSCA 180; DPP (Cth) v MHK (a Pseudonym) [2017] VSCA 157; Fattal v R [2013] VSCA 276. There are crimes defined concerning international terrorist activities using explosive or lethal devices: s.72. And more.




> Theft, obtainings by deception, robbery, burglary, handling stolen goods etc

version 11 June 2017

THEFT

Crimes Act ss.71-74. The common law term "larceny" is replaced by "theft".
The basic definition of theft is dishonestly appropriating property belonging to another with the intention of permanently depriving the other of it: Crimes Act s.72.
Further explanation of theft: Crimes Act s.73.
Dishonesty has the same meaning as with obtain by deception (see below): e.g. Carrott v R [2013] VSCA 90. There is also partial negative definition of s.73 (2). A person's appropriation of property belonging to another is not to be regarded as dishonest - (a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or (b) if he appropriates the property in the belief that he would have the other's consent if the other knew of the appropriation and the circumstances of it; or (c) (except where the property came to the person as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. A person's appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.
Appropriation: Crimes Act s.73(4), s.73(5); Nguyen v R [2015] VSCA 63. Requires an adverse interference with or usurpation of any of the rights of the owner: R v Roffel [1985] VicRp 51, [1985] VR 511; Stein v Henshall [1976] VicRp 62, [1976] VR 612; W v Woodrow [1988] VicRp 45, [1988] VR 358. Includes where there has been consent of owner as result of fraud: R v Baruday [1984] VicRp 59, [1984] VR 685. By majority in Roffel, a taking of possession of property consensual in the true sense is not appropriation; compare as so with former common law: Croton v R [1967] HCA 48, (1967) 117 CLR 326.
Property includes money and all other property real or personal including things in action and other intangible property: Crimes Act s.71. Cheques: Parsons v R [1999] HCA 1, (1999) 195 CLR 619. Land or things forming part of land: s.73(6). Wild creatures etc: s.73(7).
Belonging to another. Crimes Act s.71, s.73 (8). Not necessary to prove who the other is: Lodge v Lawton [1978] VicRp 10, [1978] VR 112.
Intention to permanently deprive is further explained by s.73(12) and s.73(13); DPP v Brownlie & Brownlie (a Pseudonym) [2015] VSCA 147; R v Dardovska [2003] VSCA 4, (2003) 6 VR 628; Sharp v McCormick [1986] VicRp 83, [1986] VR 869. For a motor vehicle or an aircraft proof of taking or in any manner using without the consent of the owner or person in lawful possession is conclusive evidence of intention to permanently deprive: Crimes Act s.73(14).
Property got by another's mistake: s.73(10).
Theft can in appropriate case be charged as a single continuous offence: DPP v Stark [2006] VSCA 61.
The doctrine of recent possession concerns proof of guilt. It identifies the prominent inference that may arise from circumstantial evidence where it is established that the accused is in possession of recently stolen property and offers no explanation or one which the jury is able to reject beyond reasonable doubt; but there must be proof that the goods were recently stolen before an inference can possibly arise: R v Trifilo [2009] VSCA 194; Trainer v R [1906] HCA 50, (1906) 4 CLR 126; Bruce v R [1987] HCA 40, (1987) 61 ALJR 603; R v Beljajev [1984] VicRp 57, [1984] VR 657.
Extra-territoriality is as for obtain property by deception etc: Crimes Act s.74(2).


OBTAIN PROPERTY BY DECEPTION


The crime is one of those often described as fraud by investigators, lawyers and others. It is created by Crimes Act s.81.
The basic definition is by any deception dishonestly obtaining property belonging to another with the intention of permanently depriving the other of it. s.81(1).
The deception can be deliberate or reckless and is otherwise further defined by s.81(4).
Property has the same meaning as for theft (above) Crimes Act s.71.
The element of dishonesty has been interpreted to be a mental element, specifically belief of a lack of legal right: R v Todo [2004] VSCA 177, (2004) 10 VR 244; R v Salvo [1980] VicRp 39, [1980] VR 401; R v Brow [1981] VicRp 75, [1981] VR 783; R v Bonollo [1981] VicRp 63, [1981] VR 633.
A person is to be treated as obtaining property if he obtains ownership, possession or control of it, and obtain includes obtaining for another or enabling another to obtain or to retain: s.81(3).
There must be causal connection between the deception used and the property obtained though the person deceived and the person obtained from need not be same: R v Clarkson [1987] VicRp 80, [1987] VR 962.
For deception of corporations, the person deceived does not have to be a natural person; it can be the corporation as distinct legal entity: Macleod v R [2003] HCA 24, (2003) 214 CLR 230. It is though usually sufficient if the person deceived is a natural person who in the circumstances is acting within the scope of that person's employment with the corporation; but a person who is party to the fraud could not stand as the corporation in this sense or at all: R v Jenkins [2002] VSCA 224, (2002) 6 VR 81.
Representation by conduct: Crimes Act s.81(4); R v Benli [1998] 2 VR 157. Statements as to future events only amount to deception if they mis-state present intention: R v Lo Presti [2005] VSCA 259.
Where two or more false representations are laid in one count, it is sufficient to convict if the jury is unanimously satisfied as to any one of them: Magnus v R [2013] VSCA 163; R v Holmes [2006] VSCA 73; R v Kuff [1962] VicRp 79, [1962] VR 578.
It can in appropriate case be charged as a single continuous offence: DPP v Stark [2006] VSCA 61.
Most obtain property by deception can alternatively be charged as theft: R v Baruday [1984] VicRp 59, [1984] VR 685.
Extra-territoriality: Crimes Act s.81A; R v Keech [2002] VSCA 103.


OBTAIN FINANCIAL ADVANTAGE BY DECEPTION


The crime is another of those often described as fraud by investigators, lawyers and others. It is created by Crimes Act s.82.
Meaning of financial advantage is wide including credit received as for example by electronic funds transfer: Giordano v R [2010] VSCA 101. Or a loan facility as in Werden v R [2015] VSCA 72. Or evasion of a debt for however short a period as by giving the creditor a worthless cheque: R v Vasic [2005] VSCA 38, (2005) 11 VR 380; Matthews v Fountain [1982] VicRp 104; [1982] VR 1045. Or the services of an employee: Matthews v Fountain.
The element of deception is the same as for obtain property by deception: Crimes Act s. 82(2).
Extra-territoriality is as for obtain property by deception: Crimes Act s.81A.


ROBBERY

Robbery is stealing, and immediately before or at the time of doing so, and in order to do so, usings force on any person or putting or seeking to put any person in fear that he or another person will be then and there subjected to force: Crimes Act s.75.
The essence of a robbery is that violence is done or threatened to the person of the owner or custodian who stands between the offender and the property stolen, in order to overcome that person’s resistance and so oblige the person to part with the property; in other words, the victim must be compelled by force or fear to submit to the theft:
R v Butcher [1986] VicRp 4; [1986] VR 43.


ARMED ROBBERY

Armed robbery is robbery and at the time the offender having with the person (or her) a firearm, imitation firearm, offensive weapon, explosive or imitation explosive: Crimes Act s.75A. By this section these arms have the same meaning as for aggravated burglary, see below.
Meaning of "having with" is having the article either on the person or readily available for use:
R v Hartwick [1985] VicSC 544, (1985) 17 A Crim R. 281; R v Kolb [1979] VicSC 622.


CARJACKING AND AGGRAVATED CARJACKING

Crimes Act s.79, s.79A. Created in 2016 to cover conduct which previously would have been only robbery or armed robbery particularising the property as a motor vehicle. The new offences attract differences relating to bail and the maximum sentences.


BURGLARY

Burglary is entering any building or part of a building as a trespasser with intent to steal anything in the building or part in question; or to commit an offence - involving an assault to a person in the building or part in question; or (ii) involving any damage to the building or to property in the building or part in question - which is punishable with imprisonment for a term of five years or more: Crimes Act s.76. Building includes also inhabited vehicles and vessels: s.76(2).Trespass means the act of entry without right or authority (including entry exceeding bounds of limited authority) by one person on to the land of another who is in possession (including a person entitled to immediate and exclusive possession) with the required mental element being the accused knowing or being reckless as to the facts which make the person a trespasser:
Barker v R
[1983] HCA 18, (1983) CLR 338; Marks-Vincenti v R [2015] VSCA 54; R v Lambourn [2007] VSCA 187; R v Munro [2006] VSCA 94; R v Spero [2006] VSCA 58, (2006) 13 VR 22; R v Taylor [2004] VSCA 189, (2004) 10 VR 19. The trespass element is confined to a finite act, complete at the point of entry into the building, but is a continuing state, so that s.76 (1) is capable of applying to a person who enters a building as a trespasser and who, at the time of entering a particular part of the building, has the intention of committing a particular offence in that part of the building: Singh v R [2013] VSCA 300; R v Chimirri [2010] VSCA 5. Conditional intention, e.g. to steal property or assault a person who may be present, is sufficient: R v Verde [2009] VSCA 16. As to lesser forms of unauthorised entry to places see Summary Offences Act s.9.


AGGRAVATED BURGLARY

Aggravated burglary is burglary and at the time the offender (a) having with the person or her any firearm or imitation firearm, any offensive weapon or any explosive or imitation explosive; or (b) at the time of entering the building or the part of the building a person there being then present in the building or part of the building and he or she knowing that the person was then so present or being reckless as to whether or not a person is then so present.Crimes Act s.77. By the section "explosive" means any article manufactured for the purpose of producing a practical effect by explosion, or intended by the person having it with the person or her for that purpose; "firearm" has the same meaning as in the Firearms Act 1996; "imitation explosive" means any article which might reasonably be taken to be or to contain an explosive; "imitation firearm" means anything which has the appearance of being a firearm, whether capable of being discharged or not; "offensive weapon" means any article made or adapted for use for causing injury to or incapacitating a person, or which the person having it with him or her intends or threatens to use for such a purpose. Further on "offensive weapon":
Wilson v Kuhl
[1979] VicRp 34, [1979] VR 315; DPP v Woodward [2006] VSC 299; R v Nguyen [1997] 1 VR 551. For aggravated burglary, need for jury unanimity as to circumstance of aggravation, including where prosecution advances multiple circumstances: R v Secomb [2010] VSCA 58.


HOME INVASION AND AGGRAVATED HOME INVASION

Crimes Act s.77A, s.77B. Created in 2016 to cover conduct which previously would have been only burglary or aggravated burglary where it concerned a home and was committed in company with one or more other persons. The new offences attract differences relating to bail and the maximum sentences.


HANDLING STOLEN GOODS

Crimes Act s.88(1). A person handles stolen goods if knowing or believing them to be stolen goods he dishonestly receives the goods or brings them into Victoria, or dishonestly undertakes or assists in bringing them into Victoria or in their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so.
Theft and handling joined in the same indictment as alternative charges and tried together: s.88A.
The accused must be proven to have been in possession or control of the property, either on his or her own, or jointly with some other person or persons:
Audsley v R [2013] VSCA 41.
Goods includes money and every other description of property except land and includes things severed from the land by stealing: s.71(1). The meaning of stolen goods is expanded by s.90.


SOME FURTHER RELATED CRIMES

False accounting
Crimes Act s.83(1);
R v Senese [2004] VSCA 136. To determine whether a document is required for any accounting purpose, evidence would be expected both of the connection of the documents with the relevant accounts and also as to their requirement for that purposes: R v Heinze [2005] VSCA 124, (2005) 153 A Crim R 380. A merely prudential purpose not enough: R v Jenkins [2002] VSCA 224, (2002) 6 VR 81.
Make and use false document
Crimes Act s.83A;
R v O'Hara [2005] VSCA 62; R v Gatzka [2004] VSCA 121; R v Ceylan [2002] VSCA 53, (2002) 4 VR 208.
Accident compensation fraud crimes
Motor vehicle accident and WorkCover. Accident Compensation Act.
Barristers & solicitors
Legal Profession Act, trust account and other crimes.
Estate Agents
Estate Agents Act, trust account (ss.90 & 91) and other crimes.
Property suspected to be stolen etc Summary Offences Act ss.26-34 defines some such offences (and police powers) including s.26 unexplained possession of personal property reasonably suspected to be stolen. These are offences primarily within Magistrates' Court jurisdiction.




 > Treason

version 22 March 2018

Traditionally regarded as the most serious of all crimes. Sometimes called high treason, there having been in times past in the UK also a crime known as petty treason.

There are Commonwealth provisions: Criminal Code in Schedule. Treason by section 80.1 mainly concerns causing death or harm to the Sovereign, the heir apparent of the Sovereign, the consort of the Sovereign, the Governor-General or the Prime Minister, also levying against the Commonwealth or preparing to do so. Treason by section 80.1AA is extended to materially assisting enemies etc and assisting countries etc engaged in armed hostilities against the ADF. These provisions have extended geograhical jurisdiction D: see sections 80.4 and 15.4. This means they apply (a) whether or not the conduct constituting the alleged offence occurs in Australia; and (b) whether or not a result of the conduct constituting the alleged offence occurs in Australia. There is a defence in section 80.3 for acts done in good faith.

It is said the first and last Commonwealth treason trial was Cousens, committed for trial in Sydney 1946; the charge dropped due to lack of evidence: at Parliamentary Library; a preliminary proceeding was Ex parte Cousens [1946] NSWStRp 36, (1946) 47 (SR) NSW 145. It was alleged the defendant, an Australian army officer held prisoner of war by Japan, and formerly a Sydney radio announcer, made broadcasts for his captors. The case was brought by the Commonwealth under NSW law which adopted the Treason Act 1351 of England..

There is also a Victoria provision Crimes Act s. 9A mainly overlapping the Criminal Code presumably as safeguard against any uncertainty as to constitutional validity of the code provisions. The Victoria provision seemingly would have exclusive operation for example concerning offending against the Sovereign etc if acting specifically in Victoria capacity.

Treason in Victoria has been rarely charged, the major exceptions being in 1855 when thirteen accused were split into seven trials for treason arising from events concerning the Eureka Stockade 1854: see e.g. public-record-office-victoria.culturalspot. The cases were brought under the Treason Act 1351 of England which then applied in Victoria. All were acquitted.

In the UK, the main provision of Treason Act 1351 still applies, albeit translated from the original medieval French. It was basis for Joyce v DPP pdf at uniset.ca, [1946] AC 347, case of an accused styled "Lord Haw Haw" outside the realm (in Germany) adhering to the King's enemies (in particular Germany) by broadcasting propaganda; necessity for duty of allegiance to King established in the case merely by possession of British passport. See also R v Casement at uniset.ca, [1917] KB 98. It is likely these cases would be influential with any Australian court required to interpret comparable provisions.


 

 

> Urging violence etc, sedition, criminal defamation, vilification

version 12 April 2018

The various crimes of this group are uncommonly charged and the old ones survive probably because they have been so little used as to evade the priorities of reformers.

Commonwealth laws which in times past created sedition crimes have been replaced since 2011 by approximately comparable laws which create crimes against urging violence: Criminal Code in Schedule sections 80.2A-80.2B. The crimes are urging the overthrow of the Constitution or Government by force or violence, urging interference in Parliamentary elections or constitutional referenda by force or violence, urging violence against groups and urging violence against members of groups. There is a defence in section 80.3 for acts done in good faith.

These Commonwealth law provisions and their Commonwealth law approximate predecessors have been little used, if at all, since R v Sharkey [1949] HCA 46, (1949) 79 CLR 121, case of alleged uttering of seditious words being certain pro Communist and pro Soviet Forces utterances, convicted and imprisoned.

In Victoria law, there have been
common law crimes of seditious libel, uttering seditious words, and participation in a seditious conspiracy. There is fairly recent opinion that these still exist in Victoria: ALRC, Review of Sedition Laws (2006); cf R Jordan of Aus Parlt Lib, Sedition Law in Australia (2010). The existence of a crime of publishing a seditious libel is recognised by a provision for seizure and destruction of documents: Crimes Act s.469AA.

A notable historical example of the common law crime of seditious libel in Victoria was the 1855 case against newspaper editor Henry Seekamp concerning publications preceding the Eureka Stockade 1854, convicted and imprisoned. There are newspaper reports of a Melbourne criminal trial R v Fraser 1920 search at trove nla upon common law seditious libel concerning a printer and publisher; jury was directed that mere advocacy of independence for Ireland not seditious libel, if however the language were intemperate and the real object were to incite passion and inflame hatred and contempt against the Sovereign, then would be; result jury acquittal. It appears numerous decades since these Victoria common law crimes have been charged.

In Victoria law, another common law crime that still exists is criminal defamation. It is recognised by Crimes Act s.320. An example, said to be the most recent in Victoria, was the 1950 prosecution (and ultimate acquittal) of author Frank Hardy for an aspect of his book Power Without Glory, a preliminary proceeding being
Wren v Hardy pdf [1951] VicLawRp 34; [1951] VLR 256. The case was commenced as a private committal which would not be possible today. Following old authority cited in the case, after stylistic editing, it may be said that criminal defamation consists in the writing and publishing of defamatory words of any living person calculated or intended to provoke the person to wrath or expose the person to public hatred, contempt, or public ridicule, or damage the person's reputation, or words written of a person which are likely to provoke the person to commit a breach of the peace, or if seen by others, to hold the person up to hatred, ridicule or contempt, or to damage the person's reputation.

In Victoria, there are also statutory crimes of publishing any libel with intent to extort money and publishing false defamatory libel: Wrongs Act sections 4-13AA. These have been rarely if ever charged (Wren v Hardy mentions an 1876 example under earlier Victoria statute).

In Victoria, there are statutory crimes (with summary jurisdiction) of serious racial vilification and serious religious vilification: Racial and Religious Tolerance Act sections 24, 25. The Act provides also various non criminal measures and procedures. There are Commonwealth laws against racial discrimination from Racial Discrimination Act, for example section 18C considered in Eatock v Bolt [2011] FCA 1103, which are not criminal laws.

In Victoria, the existence of a crime of publishing a blasphemous libel is recognised by a provision for seizure and destruction of documents: Crimes Act s.469AA. It appears the last case of it charged was in 1919 against Robert Samuel Ross for an anti-Christian and pro-Bolshevik commentary. According to newspaper reports, the case was committed for trial but discontinued after Ross was convicted summarily of a Commonwealth statutory offence concerning unlawful mailing of the material and, on appeal, fined.


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

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