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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

Week 1

Offences (s3)

Sub (1)

Criminal

Regulatory
Regulatory Offences Act 1985 (eg. Shoplifting, wilful damage)

Sub (2)

Indictable

Simple
Magistrates Courts only sub (4) Justices Act 1886

(3)

Crimes

Misdemeanours

(will always state which type of offence)

Criminal Law and Procedure


Offences are defined in section 3 of the Criminal Code (Qld): (1) Offences are of 2 kinds, namely, criminal offences and regulatory offences. (2) Criminal offences comprise crimes, misdemeanours and simple offences. (3) Crimes and misdemeanours are indictable offences; that is to say, the offenders cannot, unless otherwise expressly stated, be prosecuted or convicted except upon indictment. (4) A person guilty of a regulatory offence or a simple offence may be summarily convicted by a Magistrates Court. (5) An offence not otherwise designated is a simple offence.

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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

Where offences can be heard is set out in section 552A and 552B [page 737]. Simple offences (eg. Drink driving) can only be heard in Mags Ct Some offences (eg. Stealing) can be heard either in Mags Ct or by judge and jury (District or Supreme Cts) Serious offences (eg. Murder) only dealt with by J and jury in Supreme Ct SUMMARY TRIAL
Commenced by complaint (arresting officer) see s 42 Justices Act (a)Summary Trial Magistrates Court see generally pt 6 Justices Act
(inform summary trial process)

If jury found not guilty then the accused was acquitted

Plead guilty s 145 (2)Justices Act Complaint dismissed (s 149 JA)


[if not enough evidence to convict brd]

Plead not guilty (s 146 JA) Convicted (infact guilty) (s 151 JA)

Sentenced under Penalties and Sentences Act

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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

INDICTABLE OFFENCES
Charged with offence Summary trial* Magistrates Court Ex-officio indictment
see s 561 CC (no committal) Barton (1980) 147 CLR 75

Committal Magistrates Court

Trial on indictment(see later slide)


* Election to be heard on indictment before judge and jury governed by s 552A and 552B Criminal Code.

TRIAL ON INDICTMENT
Committal hearing in Magistrates Court Trial on indictment in District or Supreme Court See indictment s 564 CC - presented by Crown Prosecutor on behalf of DPP Pleas - s 598 CC Plea guilty Guilty Not guilty s 650 CC Plea not guilty Hung jury s 646 CC Special plea NG/ unsound mind s 647 CC

Nolle Prosequi (s 563 CC) Sentenced under Penalties and Sentences Act

Nolle Prosequi (I shall not proceed) section 563CC indication by Crown Prosecutor that she or he will no longer proceed on that indictment Crown can still proceed later on another indictment (not on acquittal) States of Mind under the Code: Intention eg murder s 302(1) CC Recklessness doesnt exist per se, but see R v Lockwood [1981] Qd R 209 re s 469 CC wilful damage Negligence - eg criminal negligence under s 289 to prove offence of doing grievous bodily harm under s 320.

Week 2
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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

Arrest
There are two ways to get arrested: (1) Without a warrant generally only crimes (s5 QCC) [page 183] (2) With warrant generally misdemeanours (unless otherwise stated)

ARRESTS
Issue of warrants: INDICTABLE OFFENCES Justices Act s 57

WITH

WARRANTS

57 Cases in which warrants may be issued: If a complaint is made before a justice (1) that a person is suspected of having committed an indictable offence within the justices jurisdiction; or (2) that a person charged with committing an indictable offence elsewhere within the State is suspected of being within the justices jurisdiction; or (3) that a person charged with committing an indictable offence on the high seas, or elsewhere outside the State, of which notice may be taken by the courts of the State, is suspected of being within the justices jurisdiction; the justice may issue a warrant (4) to apprehend the person; and (5) have the person brought before justices to answer the complaint and to be further dealt with according to law.

PPRA s 202-204
202 Arrest under warrant (1) It is lawful for a police officer acting under a warrant issued under any Act or law to arrest the person named in the warrant. (2) In this section arrest includes apprehend, take into custody, detain, and remove to another place for examination or treatment. 203 Arrest warrant application (1) A police officer may apply to a justice for a warrant to arrest a person for an offence (arrest warrant). (2) The application must be sworn and state the grounds on which the warrant is sought. (3) The justice may refuse to consider the application until the police officer gives the justice all the information the justice requires about the application in the way the justice requires. Example The justice may require additional information supporting the application to be given by statutory declaration. 204 Issue of arrest warrant The justice may issue an arrest warrant only if satisfied there are reasonable grounds for suspecting (a) that the person has committed the offence; and (b) for an offence other than an indictable offence, proceedings by

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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

way of complaint and summons, attendance notice or notice to appear for the offence would be ineffective.

SIMPLE OFFENCES: Justices Act s 59

59 Warrant in the first instance (1) When complaint is made before a justice of a simple offence, the justice may, upon oath being made before the justice substantiating the matter of the complaint to the justices satisfaction, instead of issuing a summons, issue in the first instance the justices warrant to apprehend the defendant, and to cause the defendant to be brought before justices to answer the complaint and to be further dealt with according to law.

PPRA s 202-204 (see above)

Formalities with warrants: They need to state the offence and name They need to direct the police to apprehend (see PPRA s205 [page 1856] and Justices Act s62 [see below])
62 What warrants shall order A warrant shall state shortly the offence or matter of the complaint on which it is founded, and shall name or otherwise describe the person against whom it is issued, and it shall order the police officers to whom it is directed to apprehend the defendant, and to bring the defendant before justices to answer the complaint and to be further dealt with according to law.

Protection in execution when arresting under the warrant: Lawful to arrest and detain - QCC s 249 [page 404] and PPRA s 202 [page 1856] Protects arrest of wrong person under the warrant provided that the belief was held on reasonable grounds by either police or citizen (subjective state of mind) QCC s252 [page 405] If there is a defect in the warrant (eg. typo) both for a police and citizens QCC s253 [page 406] Protection for ALL arrests (with and w/out a warrant): Allows reasonably necessary force to be used (will extend depending on how uncooperative the arrestee is) QCC s254 [page 254] and PPRA 376 [page 1917] Also, s 377 of PPRA allows police officers to use deadly force if necessary when preventing an escape from the arrest in certain circumstances [page 1917]

ARRESTS

WITH

WARRANTS

RIGHT OF SILENCE: The common law rule: o Pettie v Maiden right to remain silent to supply the answers to the question fundamental right o Not offence if remaining silent and no adverse inference can be drawn Consequence of failure to exercise the right:
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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

o However, if something said that is self-incriminating then that can be used in the evidence An exception to the hearsay rule of the evidence Limits on the rule: o Right doesnt extend to partial silence (say some and remain silent on other matters) o If the above occurred, then the right of silence has been forfeited o In Waughn partial silence can be used to infer consciousness of guilt (inference drawn from a collection of what you say and what you dont say)

2 streams governing questioning: 1) PPRA only applies to INDICTABLE OFFENCES (if simple offence then CL applies) 2) Common Law no power to arrest for questioning (Williams v R and R v Forster) The Common Law Position: See R v Forster - still to be done!!! PPRA: Arrest to investigate or question if police reasonably suspect that s/he has or is committing an indictable offence s198(2) {subjective state of mind} Detention to investigate or question Chapter 7 part 2 S234 power to detain for a reasonable time to investigate for questioning about ANY INDICTABLE offence [page 1867] Reasonable time (see factors below that need to be considered) s235 [page 1868]
Necessity of investigation Number of offences investigated Complexity of offence Whether has indicated a willingness to make statement or answer questions (also need to get the bail or brought before a justice) Quare: If indicates a refusal to answer then no detention is reasonable merely for questioning Age physical and mental capacity Time already spent question

[The following safeguards placed on detention for questioning only apply to indictable offences!]

Limit of 8 hours [and only 4 hours actually questioning] s 234(2) & (4) Need to give a suspect time out ss (4)(b) If unforeseen reasonable delay on detention occurs, detention is still lawful s240 [page 1869] Application for an extension of the detention period can be made to Magistrate or JP Magistrate only if the questioning period of detention period exceeds 12 hours Matters to be considered for extensions-s 237
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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

nature of offence necessity to: preserve evidence to complete investigation PROVIDED investigation being conducted properly and without unreasonable delay Arrest for detention applies to Children

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Exam Preparation Notes Sem 1, 2002

Powers of Arrest without a warrant:


a) QCC Chapter 58 Citizens Arrest {doesnt apply to the police s545A} b) S546 A person may arrest without a warrant only if the offence is capable of arrest without warrant (i.e. crimes or otherwise states in s5 of the Code [page 183]) Under s 546 Arrest without a warrant generally: [page 732] The arrest is lawful: (a) [Repealed] (b) By citizen called on to assist (e.g. Police asked to assist) Police need only suspect offence Citizen must know police have called UNLESS knowledge by the police that no reasonable grounds for suspicion by police (c) By citizen where found committing the offence (that is arrestable w/out a warrant) [need to be committing no good if the offence already committed] (d) By citizen where offence has actually been committed Need for a belief on reasonable grounds that person has committed the offence (subjective state of mind) Irrelevant if the wrong person If accused resists, can use a reasonable force to arrest (e) Citizen finds another by night (f) [Repealed] Under s 548 Arrest of person found committing offences: [page 734] (1) By a justice Any indictable offence (or simple offence arrestable without a warrant), and Found committing offence (2) Lawful for anyone to arrest: For any offence where can arrest without a warrant, and if person is found to be committing an offence Under s 549 Arrest of offender committing indictable offence by night [page 734] Lawful for any person without a warrant If person found committing any indictable offence by night (no good if already committed) Under s 550 Arrest during flight (escape): Lawful for any person to arrest without warrant where Belief on reasonable grounds that: o (1) person has committed an offence, AND o (2) person is escaping from person pursuing, AND o (3) the pursuing person has authority to arrest. Under s 479 Arrest without a warrant [page 698]: Any person committing a misdemeanour defined in this chapter may be arrested without a warrant (chapter 46) By the owner of the property injured or the owners employee or a person authorised by the owner or employee

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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

s 260 Breaches of Peace [page 409]: By citizen Who witnesses breach of peace o breach of peace is defined in R v Howell whenever harm is actually done or is likely to be done to a person, his property or a person is in fear of being so harmed mere disturbance or insult to a person or abusive language generally are not sufficient To detain and use force reasonably necessary (or reasonably proportioned to the danger) Anyone involved actually or potentially. Under Police Powers and Responsibilities Act: Under section 42 of PPRA Dealing with the breach of peace [page 1796]: (1) By police if reasonably suspecting: (a)breach of peace is happening or has happened (b)there is imminent likelihood of breach of peace (c)there is a threatened breach of peace (2) Lawful to take steps officer considers reasonably necessary to prevent breach of peace (3) Lawful, if reasonable belief, to take into custody a person who has witnessed a breach of peace Arrest under the Police Powers and Responsibilities Act Under s 198 Arrest without a warrant [page 1854]: (1) Lawful for the police officer to arrest, without a warrant, where reasonable suspect that the person has committed or is committing an offence AND it is reasonably necessary for 1 or more of the following reasons: (a)Prevent continuation or repetition of the offence (b)Establish persons identity (c)To ensure attendance before the courts (d)To obtain or preserve evidence (e)To prevent witness interference (f)To prevent fabrication of the evidence (g)To preserve safety of any persons (incl. arrestee) (h)To prevent flight (i)For assaulting police or disobeying direction (j)For Domestic Violence Act offence (k)Because of the nature and seriousness of the offence (not defined) (2) Lawful for the police officer to arrest without warrant a person found committed or committing an indictable offence for questioning or investigating the offence (3) Subsection 1 doesnt apply to children (see Juvenile Justice Act & notes p9)

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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

Effecting a Valid Arrest: Not defined in the cat General Law: No essential formula Bring to the suspects attention that they are under compulsion and suspect submits to that compulsion

Under s 255 QCC Duty of person arresting [page 406]: Duty to give notice if practicable of the cause of arrest Failure doesnt make arrest unlawful, but will impinge on how much force has or can be used. Under s 222 PPRA Information to be given to arrested person: [page 1862] As soon as practicable after arrest inform that person is under arrest and about nature of the offence (this should be done before arrest under general law) Under s 394 PPRA Supplying police officers details [page 1925] Officer must supply name, rank and station and if not in uniform, the badge and ID card Under s 395 PPRA Record of execution of warrant or order [page1926]: Police officer who executes the warrant must record their details on the back of it Duties following the arrest: Unarrest if no longer suspect or if have no evidence s208 PPRA [page 1857]

Citizens or Police Take before a justice as soon as practicably possible: S 552 QCC [page 735] - citizen S 224 PPRA [page 1862] police officers S 69 Justices Act o Forthwith and as soon as reasonably practicable Unless released or granted bail Or detained for questioning or investigation for 8 hours exceptions Questioning following the arrest: The Common Law position: R v Williams: Cannot detain merely for questioning Can question in custody about the offence provided that you are not unreasonably delayed Delay is reasonable to enable formulation of charges and laying same Once lawfully arrested must be brought before a justice as quickly as reasonably possible also take to watch house Detention after arrest for questioning in breach of this requirement is unlawful

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LWB238 Introduction to Criminal Law

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A failure to comply with this carries sanctions of exclusions of confessions obtained during unlawful custody Its actionable under civil law Judges Rules: 9 rules for the guidance of police officers interrogating during an investigation breach may lead to discretionary exclusions of evidence (self incriminating statements made by arrestee) part of law in relation to indictable offences See page 1200 of Carters. It has been repeatedly stated that the Judges Rules do not have the force of law in Australia: Van Der Meer And Others v R. The Judges rules...merely provide a yardstick against which police interrogative procedures may be judged: Trial judge in Van Der Meer And Others v R. s 224 PPRA unlawful unless detained under Chapter 7 and this only relates to Indictable Offences Safeguards during questioning PPRA only applies when questioned in regards to indictable offences Common law applies when being questioned for all other offences PPRA safeguards w.r.t. indictable offences: Right to be cautioned before being questioned s 258 [page 1876] Right to communicate with a lawyer or friend s 249-253 [page 1873] Speaking to and presence of friend, relative or lawyer s 250 Can be removed if unreasonably interfering (s255-pg 1875) under s250(3), s251(6) and s252(3) Questioning of aboriginal people and TSI s251 Questioning of children s252 [page 1874] Questioning of persons with impaired capacity s 253 Questioning of intoxicated persons s254 [page 1875] Right to an interpreter s 260 [page 1876] Right to electronic recording of questioning s263-266 If not recorded then admissions prima facie are inadmissible under s263(3) but s 266 directs to admit [page 1878] Arresting Children

Juvenile Justice Act Division 1, Part 2


Prima facie not proceed at all, OR Proceed by Summons or Attendance Notice CAN ARREST s 20 if: o Serious offence see s8 for definitionOR o Belief on reasonable grounds that: the arrest is necessary for prevention of that or other offence, or
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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

to prevent the loss of evidence, or child would not answer Summons or Attendance Notice Under PPRA s193(3) Subject to s 20 of Juvenile Justice Act, its lawful to arrest a child if a police officer reasonably suspects1 that a child is or has committed an offence [page 1854] Under PPRA s207 Police office to consider alternatives to proceeding against a child [page 1857] Redress of Unlawful Arrest:

PPRA s5 Compliance with Act by police officers [page 1777] General Law: o Action in Tort Assault, Unlawful imprisonment o Writ of Habeas Corpus writ to free a prisoner from detention o Private porsecution o Discretionary exclusion of evidence if arrest is unlawful then even though the evidence is prima facie admissible it can be excluded by the discretion of the judge or withheld from the jury

Rocker v George suspicion is easier to satisfy than belief page 12 of 87

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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

Week 3
Bail:
Bail is a mechanism of setting a person free following the arrest Bail is governed under Bail Act 1980 [page 1326] The act has code construction and thus CL does not apply unless there is an ambiguity or need to seek a technical meaning not defined by the act

WATCH HOUSE BAIL s 7 [page 1330]


1) This section applies if a) A person, who has been arrested in connection with a charge of an offence, is delivered into the custody of a police officer who is: i) The officer-in-charge of a police establishment, or ii) A watch-house manager, and b) The person is not detained under the PPRA chapter 6 part 2, and c) The police officer is satisfied the person cannot be taken promptly before a court. 1A) The police officer a) Shall investigate whether or not to grant the bail, and b) May and, if not practicable to bring person before a court within 24 hrs after being taken into custody, shall grant bail and release arrested person from custody in accordance with the Act

COURT BAIL s 8 [page 1331]


1) A court, subject of this act -a) may grant bail to a person held in custody on a charge of or in connection with the offence if i) the person is awaiting a criminal proceedings, or ii) a court has adjourned criminal proceedings, or iii) the court has committed or remanded the person in the course of criminal proceedings b) May enlarge, vary or revoke bail so granted.

Prima facie there is a right to bail under section 9 before the proceedings commence Their right is not only stemming from the right of bail under the act but also from the principle of presumption of innocence

Under s 9: Prima Facie Right to Bail Where a person held in custody on a charge of an offence of which the person has not been convicted, the court shall, subject to this act, grant bail to the person. [page 1332] Under s 13 -- When only the Supreme Court may grant bail: [page 1338] Only supreme court or a judge of the Supreme Court may grant bail to person charged with an offence under the Criminal Code if, on conviction, sentencing court will have to decide which of the following sentences to impose on the person: a) Imprisonment for life, which cannot be mitigated all vary under QCC or any other law; b) An indefinite sentence under the Penalties and Sentences Act 1992 part 10 Trial Judges may give bail in course of proceedings R v Wren

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LWB238 Introduction to Criminal Law

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REFUSAL OF BAIL s16 [page 1342]


1) A court or police officer (authorised to grant bail) shall refuse to grant bail if satisfied: a) there is an unacceptable risk factors for defendant is released on bail: i) would fail to appear or surrender into custody; ii) would while released on bail (A) comments and offence; or (B) endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged or anyone else's safety will welfare; or (C) interfere with witnesses or otherwise obstruct the course of justice; or b) the defendant should remain in custody for the defendant's own protection

2) Factors taken into account when assessing an unacceptable risk:


a) the nature and the seriousness of the offence; b) the character, antecedents, associations, home environment, employment and background of the defendant; c) the history of any previous grants of bail to the defendant; d) the strength of the evidence against the defendant. [also, see below for Williamson v DPP case * unacceptable risk interpretation] 3) Where the defendant is charged -a) with an indictable offence committed between the date of the defendant apprehension and the date of the defendants committed for trial (whether free at large or without bail); or b) with an offence to which section 13 applies [SC grant bail only eg murder]; or c) with an indictable offence in the course of committing which defendant is alleged to have used or threatened to use a firearm, offensive weapon or explosive substance; or d) with an offence against this Act; the court or police officer shall refuse to grant bail unless the defendant show cause why detention custody is not justified. (onus is on defendant to prove)

4) In ranging a bail in accordance with subsection 3 a court or police officer may impose conditions
in accordance with section 11 [page 1335].

UNACCEPTABLE RISK Williamson v DPP according to Thomas J No grand of bail is risk free. It is dependent on the strength of the Crown case and the defendants character. Recognising that there is always some risk of misconduct when an accused person, or for that matter any person, is free in society, one moves to consideration of the concept of unacceptable risk [thus, always risk, but if goes too far then unacceptable risk!] Considerations of public interest:

instances where it may be contrary to public policy to grant bail held that no bail granted in cases involving breaking and entering when there is likelihood of the accused person repeating the offence while on bail2 R v Appleby Isaacs J held where a person already stands committed for trial, commits a further serious offence against the community, in respect of which further offence a prima facie case has been established and such person committed for trial the bail should be refused ss(3) above but generally bail refused unless exceptional circumstances3
HM Advocate v Quinn, Mackintosh v McGlinchy, R v Hewer, R v Phillips, HM Postmaster-General v Whitehouse R v Lythgoe, R v Harrison, R v Higgs, R v Hunt, R v Spicer

Bail on charges of murder:

2 3

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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

R v Hughes Connoly J held that there is unacceptable risk that the accused (in relation to murder) would fail to appear or surrender himself into custody

APPEALS BY DEFENDANT: Under s 10 of Judicature Act: Need to get text of the section!!! Under s 19 of BA4 - Application re refusal or conditions of bail [page 1347] Defendant held in custody in relation to an offence who has been refused bail or has been aggrieved by the conditions imposed may make application to a Court empowered by section 8 for granted bail to him or to vary it. Also see R v Hughes appeal on conditions etc or why granted bail APPEALS BY CROWN: R v Maher: (followed in R v Barett) Once a person has been convicted and subsequently appeals to a court and seeks bail, different rules apply -- no prima facie right to bail If jury has returned a verdict of 'guilty' it would be wrong to treat that as 'subject to an appeal' (provisional sentence) A bail would be granted only in extreme circumstances (stops unmeritorious claims)

CONDITIONS OF BAIL:
Under s 11 Conditions of released on bail: [page 1335] 1) a court or police officer shall consider the conditions for the release of a person on bail in the following sequence: a) the release of the person on the person's own undertaking (sign a piece of paper saying I will turn up to court); b) the release of the person on the persons own undertaking with a deposit of money or other security of stated value; c) the release of the person on the persons own undertaking with a with a surety; d) the release of the person on the person's own undertaking with a deposit of money and a surety but shall not make the conditions for a grant of bail more onerous for the person than those in the opinion of the court or police officer are necessary having regard to the nature of the offence, the circumstances of the defendant and the public interest. Its a misdemeanour if unreasonable bail conditions are put under s136(1) QCC [page 314]

Not BA as in British Airways, but as in Bail Act!!! :)

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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

Committal Process:
Pre-trial hearing of indictable offences (Justices Act Part 5 Div 5 [JA]) Administrative process to determine if enough evidence is available to put defendant on trial See Barton for advantages of committal proceedings Under s104 JA - Procedure upon a consideration of all the evidence o the evidence is not sufficient to put the defendant upon the defendants trial for any indictable offence then order the defendant to be discharged as to the charge the subject of the examination o the evidence is sufficient to put the defendant upon trial for an indictable offence, subject to s 113 JA, order the defendant to be committed to be tried for the offence before a court of competent jurisdiction (commit the defendant to prison or granted bail) s104 JA - Proceedings upon an examination of witnesses in relation to an indictable offence o generally oral evidence (except. s110A of JA tender written statements in lieu of oral testimony) s 108 JA - Procedure upon a consideration of all the evidence Can commit on any indictable offence!!!

Summary Trial:
Simple and Regulator Offences: s19 JA simple and regulator offences tried summarily s79 JA the rules of giving evidence in the courts apply Onus of proof on the complainant or the police officers or prosecution Standard of proof criminal (beyond reasonable doubt) Indictable offences: S 552A charges of indictable offences that must be dealt with summarily on prosecution election [page 737] S 552B charges of indictable offences that may be dealt with summarily [page 738] Onus of proof on the complainant or the police officers or prosecution Standard of proof criminal (beyond reasonable doubt)

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Trial on Indictment:
Trial by judge(s) and jury Onus of proof on the complainant or the police officers or prosecution Standard of proof criminal (beyond reasonable doubt) Division of Courts o District Courts generally offences with penalties of 14 yrs or less (see exceptions under District Courts Act s 61, which provides for the enlargement of the jurisdiction of the DC to deal with the offences which carry greater then 14 yrs penalty eg. rape, GBH etc..) Jury verdicts must be unanimous under s59 of Jury Act

Appeals:
FROM SUMMARY JURISDICTIONS Simple and Indictable offences: s222 fo JA to District Court (if unhappy with outcome then appeal below) s118 of District Courts Act to Court of Appeal FROM JURY TRIALS BY ACCUSED: under s668D QCC [page 955] To Court of Appeal On conviction under s668D of QCC: o ss(a) a right of appeal on question of law o ss(b) a right of appeal on question of fact with leave of Court On sentence ss(c) a right of appeal against sentence with leave of Court GROUNDS OF APPEAL under s668E QCC [page 961] Errors of Law by trial judge Unsafe and unsatisfactory verdicts of juries o Question of fact for the Appellate Court - Appellate court to go through the evidence and form own opinion o R v M whether on the whole of the evidence, it was open to the jury to be satisfied b.r.d. that the accused person was guilty [page 963] POWERS OF APPELLATE COURTS: Dismiss the appeal Quash a conviction and reorder a new trial Convict of another offence FRESH EVIDENCE: Evidence that might have come up now and not in the earlier trial Need to test that evidence 2 fold test: o (1) Whether that evidence was reasonably available at the previous trial? o (2) Does the new evidence possess sufficient cogency?
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LWB238 Introduction to Criminal Law

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R v Michelberg - How much weight would it be given and what difference would it make as to the decision?)

ATTORNEY GENERAL APPEALS under s669A QCC: [page 983] Limited by s669A o Can appeal against sentences but only to the extend of indictable offences including summarily dealt with o Questions of law arising at the trial of indictable offences including summary trials No right of appeal against acquittal (either by magistrate or jury) HIGH COURT APPEALS: Only available with the special leave of the Court o From State Appellate Courts o Available for both Crown and an accused o TEST: Is the point of general importance, which might seriously interfere with criminal justice? if Yes, leave granted.

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LWB238 Introduction to Criminal Law

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Week 4 Homicide (murder)


Matrix

Did the Accused Kill a person?

YES
Elements of unlawful killing:
1. 3. 2.

NO

Unlawfully s291 Another person (if child consider other sections) Kills Question of Causation

Tests:

CAUSATION
Smith
Padgett Royall

+
3 pty interventions & other Novus Actus Interveniens stuffetc
rd

Did the Accused Caused the Death (is there causation)?

YES
Charge with one of the offences:

NO

MURDER
Under s302 Intentional Killing ss(1)(a) Dangerous Act killing ss(1)(b) Elements made???

MANSLAUGHTER
Under s303 Crimnal Negligence Control of dangerous things s289 Necessities provision s285

YES Convict
If
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NO Acquit
if
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LWB238 Introduction to Criminal Law

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Elements of murder need to be proved by the Crown beyond reasonable doubt There are two elements that need to be proven: o (1) Actus Reus physical or external element (all other elements other then the psychological state of mind) o (2) Fault elements state of mind or guilty mind element (no mens rea element (presumption of guilty mind) - this is a CL concept so be careful, and because we are a code state, that does not apply to Qld in its strict form, so it is not a necessary element, but this concept of a fault element is important)) intention (to murder) recklessness/risk-taking/wilfully negligence failure to take care or precautions or to do something

Under s300 Unlawful killing: [page 447]


Any person who unlawfully kills another is guilty of a crime, which is called murder or manslaughter, according to the circumstances of the case.

1.

Unlawfully:
Under s291 Killing of a human being unlawful: [page 442]
It is unlawful to kill any person unless such killing is authorised or justified or excused by law.

Authorised by the law e.g. State execution Justified by the law e.g. s377 PPRA allowing to use deadly force if necessary when arresting or detaining a person Excused as per defences in Ch 5

3.

Person:

Under s292 When a child becomes a human being [page 442] Child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not, and whether the navel-string is severed or not. Under s313 Killing unborn child [page 482] Under s282 defence of surgical operation to preserve mothers life [page 432] o R v Bayliss and another (1986) 9 Qld Lawyer Reps 8 o Case concerning application of s 282. o Doctor who ran a fertility clinic was charged with performing an abortion. The law until then was unclear about what the state was. It was held that the preservation of the mothers life means the preservation of her physical and mental well being. (This is one judge)

2.

Killing: 2. Killing:
Under s293 Definition of Killing: [page 443]

Except as hereinafter set forth, any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person. Dooley & Associates (A. OHran & R. Richmond) page 20 of 87

LWB238 Introduction to Criminal Law

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Elements: 1. Causes death 2. directly or indirectly 3. by any means whatsoever (causation element)5 Because the phrase by any means whatsoever is not defined in the code, it would be necessary to recourse to the principles of Common Law.

Causation of the code is wider than that in Common Law- Vera Humpheries case. [pg 443 @ 293.10] page 21 of 87

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CAUSATION:
@ Common Law: - Death caused by The wrongful act or omission of a person charged with murder offence: o Tests for causation @ CL: R v Smith Operating cause and a substantial cause R v Padgett Need not be the sole cause or even main cause Royall v R Provided that it contributed substantially6 In Royall v R HC held that the key element in the chain of causation is that the accused created in the victims mind a well-founded and reasonable apprehension of danger of which the victim takes steps to escape. In R v Padget the persons act need not be the sole cause of the victims death, it being enough that the act contributed significantly to that result. Royalls Case: A girl was getting chased by a guy who was trying to attack her, she went through a bathroom and tried to get out of the window and fell from the window. Question was had he caused her death. Judges agreed that the assailant had provided and contributed to her death. Her attempts to escape were reasonable in the circumstances, thus it was substantial cause of her death. There needs to be this causal connection between death and the actions of the accused. Court said (holding 3 alternatives as to what took place): 1. The accused was the only witness, so an interpretation was that he had thrown or pushed her out of window. (easy in terms of causation) 2. Perhaps she was retreating from attacks and simply fell out of window. (His wrongful acts would have substantial contributed to her death) 3. More problematic. Perhaps she apprehended from his behaviour that she is in danger and would sustain terrible death at his hands and therefore deliberately jumped. Did her own acts break the causal link? Read Royall!! Approved general principles of Padgett and Smith. Also relates to actions being taken by victim themselves. Interventions by third parties: o Breaks the chain of causation in novus actus interveniens (n.a.i.) o An intervening act so independent of accused is a new cause of death Must be voluntary intervention by 3rd party - not voluntary if reasonable for self preservation by 3rd party7 (e.g. Like Royalls case situation)

Approved in Hodgets v Jackson by the HC. page 22 of 87

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not voluntary if done in performance of legal duty8

Actions by victims themselves o Example of the narcissist girl see footnotes below!!! Medical treatment o Not necessary to seek @ CL Blaue (but if refusal is unreasonable then it would be (n.a.i.) o Under s297 irrelevant & immaterial that the injury might have been avoided by proper precaution or treatment on the part of the injured [page 445] o Recourse to medical treatment Under s298 irrelevant & will not break chain of causation provided the 3 elements below 1. Medical treatment is immediate cause of death AND 2. It was a reasonably proper treatment AND 3. It was administered in good faith (R v Cook) What is medical treatment? - Management of patient includes things not done (R v Cook)

Irrational behaviour of victim o natural consequences test: 1. wrongful act includes well founded apprehension AND 2. as a result natural consequence will want to escape and injured and 3. in doing so are injuries caused by wrongful act [If all 3 elements are present there will be no break in chain of causation]

Chain broken only where either: - reaction was unreasonable or disproportionate having regard to the wrongful act (i.e. reaction unforeseeable by ordinary person) - UNLESS the reaction is foreseen (or intended) by the accused [implies particular knowledge on part of accused] Once decided on the issue of causation, the accused can be charged with:

If you have narcissist (very pretty) girl and the same situation arose as in Royal and because she was scared to get her beautiful face scarred by boyfriend she jumps out to preserve beauty its unreasonable self preservation and it will break the chain of causation.
8

E.g. police shooting when a person came out with a gun. page 23 of 87

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(1) Murder

OR

(2) Manslaughter

(1) MURDER:
ELEMENTS: 1. Unlawfully (i.e. not excused) 2. Actus reus or physical elements causing death of a person 3. Mental element [mens rea @ CL]9 To be found in the language of the code [s302 murder defn @ pg 452] To charge with murder you must be Under s302(1)(a) intentionally [intentional killing] able to fit one of Under s302(1)(b) no specific mental requirement but need for some the s302 situations otherwise unlawful purpose [dangerous act killing] manslaughter! Under s302(1)(c) intends for a purpose psychological state of mind Under s302(1)(d) administering for a purpose adds to other sections Under s302(1)(e) willfully stopping breathing for a purpose question if intentionally or recklessly Under s302(1)(a) Intentional Killing Accused intended to cause either DEATH or GBH GBH is defined in s1 [page 170] a) The loss of distinct part or an organ of the body; or b) Serious disfigurement; or c) Any bodily injury of such a nature that, if left untreated: would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health;

Can intend to cause GBH to anyone Coincidence of physical acts and intention @ Common Law: where death is caused by accused, he/she cannot rely on mistake as to precise time and manner of occurrence of death (Meli, Church, Royall per Mason CJ) @ Criminal Code language does not require coincidence of physical acts and intention

Murder fault elements @ Common Law [mens rea] This common law principle does not apply in Qld because of the operation of the Code. However, this situation can be contrasted with the Code because the CL only requires Intention OR Recklessness, and it being o Recognition of probability or likelihood of death or GBH (R v Crabbe) [without intending it cause death]
9

CL doesnt apply in this case because we have Code in Qld. page 24 of 87

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Notwithstanding the fact that this has no application under the Code, it still supports the inference of intention when looking at the issue. Jury should be directed to consider the recklessness and draw inferences as to the state of mind required under the code.
All these phrases are out of R v Willmott No 2

Intention in Queensland: Only if accused mean or have in mind Directing of mind or having a purpose to cause GBH or death In R v Willmot No 2 Connolly J held that the meaning of the word intent should be interpreted as an ordinary and well understood word (dictionary meaning). Also, he stated that the intention is not the same as motive and desire. The intention should be established on the whole of the evidence. Relevance of knowledge: (used to draw inferences to satisfy code provision of mental element) only if proof of knowledge of high of probability of death may lead to inference of actual intention (or intention to cause GBH) (this is mostly used in evidentiary matters). o if YES then apply s 302(1)(a) intentional murder and then Willmot #2 principles Under s302(1)(b) Dangerous Act Killing [page 452] Acts done and the accused not intended to cause murder or to kill Actus Reus or physical elements: 1) Act likely to endanger human life determined objectively (Gould v Bames) Townely J determined objectively and not care what accused thought standards of ordinary people 2) An unlawful purpose (of the original act)10 Must be further (separate) from the dangerous act Hughes v R
HC held the dangerous act and the unlawful purpose contemplated in 302(1)(b) are distinct, the act being of such a nature as to be likely to endanger human life and done in the prosecution of further purpose which is unlawful.

Separation may be minimal Stuart v R11 and Skilton 3) An act must be in the prosecution of the purpose an act must be in achieving a further purpose (unlawful purpose) Requirement that the dangerous act be in pursuit of unlawful purpose (Philips v Lawrence) Mental or Fault element o no intention necessary to cause death or GBH o act must be voluntary and be for the furtherance of the unlawful purpose

(2) MANSLAUGHTER:
Under s303 - definition of 'manslaughter' [page 457]

10 11

Identify dangerous act setting fire; then identify that acts original unlawful purpose extortion. Stuart v R HC held that upon the evidence it was open to the jury to find that the lighting of the fire and at a time when people were in a nightclub was an act likely to engage in human life; and the resulting death was foreseeable and was not an event, which occurred by accident. Dooley & Associates (A. OHran & R. Richmond) page 25 of 87

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Any person who unlawfully kills another under such circumstances as not to constitute murder is guilty of manslaughter.

Elements - the accused unlawfully kill another person. None of the circumstances in s302 apply Always an alternative verdict to murder under s576 [page 778]
Chap 27 Criminal Code: Duties imposed s 285 Duty to provide necessaries s 286 Duty of person caring for child s 287 Duty of Masters s 288 Duty of Medical Providers s 289 Duty of Persons in Charge of Dangerous Things

Breach of any duty is held to have caused consequences to life or health (death) Thus criminal negligence is NOT an offence but it founds criminal responsibility for the offence i.e. the consequences of the offence. The duties imposed by the act will only attract criminal charges if they are broken and the person is responsible for the consequences that follow form the breaches.

Requirements for Criminal Negligence: 1) Dangerous thing 2) Duty of Care Duty if may endanger others if absence of reasonable care and precaution Duty NOT extend to unforeseeable dangers 3) Breach of Duty community standards o must be gross negligence constituting crime deserving punishment by state Under s285 Duty to provide necessities [page 435]
It is the duty of every person having charge of another who is unable by reason of age, sickness, unsoundness of mind, detention, or any other cause, to withdraw himself or herself from such charge, and who is unable to provide himself or herself with the necessaries of life, whether the charge is undertaken under a contract, or is imposed by law, or arises by reason of any act, whether lawful or unlawful, of the person who has such charge, to provide for that other person the necessaries of life; and the person is held to have caused any consequences which result to the life or health of the other person by reason of any omission to perform that duty.

The failure to supply necessities, including negligent failure, is punishable under s324 and 328 if death does not occur. If death occurs, each failure is punishable as manslaughter under s303 at least but may even amount to murder under s302 (McDonald v McDonald or R v McDonald & McDonald)

Under s289 Duty of persons in charge of dangerous things [page 439]:

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It is the duty of every person who has in the persons charge or under the persons control anything, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health, of any erson may be endangered, to use reasonable care and take reasonable precautions to avoid such danger, and the person is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.

Includes actual or potential situations In R v Dabelstein a sharpen wooden pencil (Who D inserted into his partner and it killed her) was held to be a dangerous thing for the purpose s of this section. It also includes the practical consequences of the thing being used or managed carelessly (per Wanstall J). He was clearly responsible, so charged with manslaughter. It is my opinion that s. 289 applied to this pencil in the hand of the appellant in the circumstances. The section is not, in my view, concerned only with the objective nature of the thing in question with its design characteristics or functions - but also with the practical consequences of its being used or managed carelessly. A knitting needle is an inherently harmless object by design, but a harmful one when thrust into someones body, and so is a sharpened pencil, and when so used neither is indistinguishable from a dagger. In Hodgetts v Jackson Thomas and Ambrose JJ held that in a case where this section applied, the jury might not convict unless satisfied that the criminal negligence had been proved and that the appropriate direction upon the nature of that proof required proof of recklessness involving grave moral guilt. Sets the test for breach as community standards on a person in charge of dangerous things - to fall below that standard there has to be gross negligence constituting crime deserving punishment by State

Conclusion:
Whether elements of Murder or Manslaughter made out??? Whats the punishment? Murder life imprisonment Attempted murder life imprisonment Manslaughter life imprisonment

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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

Week 5
Non-Fatal Offences Against Person:
S245 - Assault:
Assault Primary Division Sexual and Non-sexual Secondary Division based on the degree of the harm Bodily Harm Grievous Bodily Harm

Under s 245 Definition of Assault [page 401]:


1) (LIMB 1 CL Battery) A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other persons consent, or with the other persons consent if the consent is obtained by fraud, or (LIMB 2 CL Assault) who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other persons consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the persons purpose, is said to assault that other person, and the act is called an assault. 2) In this section applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.

Section included both assault offences, which are under Common Law: Direct or indirect application of the force BATTERY Threatened or attempted application of the force ASSAULT Under s246 Assault unlawful [page 402]: 1) An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by
law. 2) The application of force by one person to the person of another may be unlawful, although it is done with the consent of that other person.

Offence of assault created under s335 [page 522]

2 types of assault
1) Assault with actual application of the force (see below) 2) Assault with threatened or attempted application of the force (see later type 2)

Elements: (Type #1)


1. Application of Force: Defined in s245(2) (see above) [but if threat or attempted application see below #2] Very broad definition No express element of intention (or specific intention) but there is an implied intention (which needs to be done institutionally) Fagan v Metropolitan Police Commissioner drove on the policemans foot accidentally, but deliberately refrained from removing the vehicle
Dooley & Associates (A. OHran & R. Richmond) page 28 of 87

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from the foot HELD: Guilty of an assault from the moment the necessary intention to inflict unlawful force was formed. Burton v Davies: Townley J at 29 provides that intention is not a necessary element for limb 1. Burton and Davies were at a party, Davies drives him home, and Davies drove past her house, and he put his hand on her leg and she started screaming. He stopped to let her out but as she was on the running board of the truck he accelerated and she got dragged along the road and she was injured. Davies was convicted of assault, and there was an unlawful application of force. 2. Directly or Indirectly (either one of those) 3. Issue of Consent: Consent need not to be expressed can be implicit or tacit (Kimmorley v Atherton) Consent may be negatived by the fraud (see dot underlined words above)
Kimmorley v Atherton: Hoare J at 133 held that consent may be expressed or implied or tacit. Happened at Myer two guys saw an attractive woman, and one of the guys asked if he could kiss her and the other volunteered to take a photo. The woman agreed. The guy who was taking the photo then also kissed the lady. She was upset with the 2nd man. The court found that consent can be implied or tacit.

Common Intercourse of Life situations: Generally, it is accepted that a person who is engaging in public life consents impliedly to a certain level of assaults in every day life (e.g. standing in the crowded bus) o could be an excuse under s23 Accidents independent of will or acts occurred by an accident Horan v Ferguson case involving an elderly school teacher found guilty of common assault (sexual nature, hitting butt) on his female students: o Denmac J stated situations when a teacher could be excused for an assault: S23 accident S280 discipline or correction [page 431] Tacit consent of a child to tactile encouragement by a teacher o Fitzgerald P and McPherson J: S245 consent must include tacit/implicit consent to ordinary physical contact experienced in everyday life which is accepted by everyone in the society S24 honest and reasonable but mistaken belief [page 225] o Boughey: Talked about acts which are common-place intentional acts which
are non-hostile. These acts do not amount to an assault. Examples are: patting someone on shoulder to get their attention, pushing between others to get through crowd. Also, it was held that assault will occur under limb one even if victim is unaware of it. Horan v Ferguson: An elderly male primary school teacher was charged with ten counts of aggravated assault being of a sexual nature of girls aged 10-13. He use to pat them on the but to get them to move in certain directions.

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Fitzgeralds commented at 34 that the law implied consent for ordinary physical contact experienced in everyday life. Grabbing on the butt is not.

Sporting Activities & Serious Assault situations: Question of ability to consent by a person to a serious assault only arises in respect of sado-masochistic sexual activity, fights in or outside bars and in sporting contests @ COMMON LAW12: Browns Case: it is question of policy whether a person can consent where bodily harm is inflicted if goes beyond bodily harm then consent is irrelevant and assault exists Raabes Case: o Connoly J if ambiguity in s245/246 then apply CL (cant consent if beyond bodily harm) Consent which may be given for the purposes of s 245 is to force, which is not intended to and does not cause bodily harm as defined by the Code. People can consent to bodily harm in properly conducted games and sports. o Derrington J If assault is an element of the charge, then the absence of consent to the assault must be proved. o If a person consents to receiving a blow, then you need to consider the type, nature and extent of the blows.
o A man and his former father in law were having a fight and during the fight the man pulled out a fence paling? and hit his former father in law with it. He argued that the father in law consented because he was a willing party to the fight. He was unsuccessful.

@ QCC (situation NOW): Need to look for a word assault, then if YES See s245 for the elements of the assault (application of force; in/direct; w/out consent) Lergesner v Carroll view regarding s339 Assault occasioning bodily harm [page 525] o If the offence provides as one of the elements assault then need to prove all the elements of the assault If there is consent then the whole assault element cannot be made out (person consented to being assaulted) Thus the whole offence will fail as well o If the assault is not element then its irrelevant whether there is consent or not 1. Where there is a case involving AOBH (assault occasioning bodily harm) and the issue of consent is in issue, each case must be looked at in the light of its own facts. 2. The jury must decide whether the degree of violence to the person assaulted exceeded that to which consent was given.

Facts: Two police officers had a heated discussion about mangoes. They got into a fight over it. At 312 summary Shepherdson J:

12

Bank of England v Belgiano Bros look @ the Common Law if there is ambiguity in the Code. page 30 of 87

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What level of violence did the person consent to? Section 246(2) Application of force may be unlawful even if consented to. o R v Brown: ( House of lords): English position is different. If conduct involved assault occasioning bodily harm or something more serious, they will only accept it if there is an important policy reason behind it. (Involved homosexual consent to putting nails through penises and fish hooks through nipples...) Court did not respect consent, it was against public policy. o McNamara v Duncan: McNamara kicked the ball cleanly in Aussie rules game and Duncan tackled him intentionally elbowing him in the head. (This is against the rules of the game). Fox J held that footballers only consent to accidental injuries and tackles which the rules permit. o Re Lenfield: Here 2 groups of year 7 boys playing football. Rugby league. A couple of year 9ers decided to play. One of the year 9ers spear tackled a year 7 boys causing back and shoulder injuries. Higgins J held there was no consent, professional footballers don't consent to spear tackles and therefore neither do year 7ers. Need to have a look at what violence is permitted within the spirit and intendment of the rules of the game Consent only to the force permitted by the rules and usual practices o Billinghurst punched into head & broke jaw into 2 places. Held, It would be contrary to public policy for participants to be viewed as giving consent to grievous bodily harm.

Mistake as to consent: A mistaken belief in consent can provide a defence, but only if the mistake was objectively a reasonable one: s 24 CC. Injuring a person by accident (aiming for someone else) It will usually be immaterial that contact was made with someone other than the person intended, because the forseeability of contact and injury will encompass contact with and injury to anyone within a certain range. Type 2 Threatened or Attempted application: ELEMENTS: 1. Attempted or threatened intention element criminal intent must be present (Hall v Fonceca): Victim must be aware of the threat. If asleep or unconscious then not sufficient. (Hockey case): After hockey game two players got into a fight, one fell from a blow and suffered injury to head as a result of hitting ground. In R v Secretary it was held that a person who makes a threat of future violence and then falls asleep may continue to commit the assault while asleep, if there would be a present ability to put the threat into effect upon awakening.
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2. By bodily act or gesture Mere words cannot amount to assault Must be some bodily act or gesture associated with the words indicating the intention of assaulting or which an ordinary person might reasonably construe as indicating such an intention (Fogden v Wade) Fogden v Wade: A man walked closely behind a women and made an indecent suggestion as
well. Walking closely behind was the physical act, so it was assault. Dale: Here, sticking a ruler under someones jacket to make it look like a gun and said this is a stick up, this was held to amount to an assault.

3. Actual or present ability to effect the purpose Actual present ability: Eg waiving a loaded gun at someone or a knife Apparent present ability: Not indicated in the code whether this requirement is subjective or objective, but @ Common Law the victim must feel, or at all events, believe, that the violence is to be feared McNamarras Case Brady v Schatzel not material that the person be put in fear. Need only for an apprehension or expectation of the assault Therefore, the better view is that from Brady v Schatzel the degree of awareness in the victims mind is demanded under the Code and its therefore subjective (also see Ryan v Kuhl, Rozsa v Samuels) The victim must be aware of the accuseds conduct (Pembles Case) Brady v Schatzel: Police went to womans house to interview her son. The woman went

inside house to grab gun and appeared to load it and said shed use it if he didnt leave. Chubb J said this was an assault. R v Everingham: Pointing a toy pistol at taxi driver was an assault. It would have to look like a gun (apparent).

If you are looking at the two limbs of assault, you only need to prove 1 to invoke operation of the section.

S335 COMMON ASSAULT


Any person who unlawfully assaults another is guilty of a misdemeanour, and is liable, if no greater punishment is provided, to imprisonment for 3 years.

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S339 Assault occasioning bodily harm:


(1) Any person who unlawfully assaults another and thereby does him bodily harm is guilty of a crime, and is liable to imprisonment for 7 years. Under s339 Assault occasioning bodily harm [page 525]: Elements: The accused o Unlawfully assaults another person (see s245 for assault) o Thereby did that other person bodily harm

What is bodily harm ?

o s1 any bodily injury which interferes with health or comfort o Need to show a quantifiable and/or specific bodily injury!!! o Pain alone without the infliction of an identifiable bodily injury is not sufficient to constitute bodily harm (R v Scatchard) CJ Burt, held that placing somebody in a headlock but not actually inflicting an injury does not amount to bodily harm. o Includes black eye or bloodied nose (Lergesner v Carroll) or serious nervous or hysterical condition (R v Chan-Fook)

S340 Serious Assaults:


Under s340 Serious Assaults [page 527]: A more serious offence if the person assaulted (a) is assaulted with the intent to commit a crime or prevent lawful arrest; (b) is a police officer acting in execution of the his/her duty; (Obstruction involves some active conduct which makes it more difficult for police to execute their duties, mere failure or refusal to cooperate is not an offence: Rice v Connolly such obstruction can be prosecuted under PPRA 2000 section 444) (c) is a person engaged in the lawful execution of any process against any property, or in making a lawful distress, while so engaged; (d) is a person engaged in such lawful execution of process, or in making a lawful distress, and the assaulter intends to rescue any property lawfully taken under such process or distress; (e) is a person executing a duty imposed on the person by law (f) (This one does not use above intro) Any person who assaults any person in pursuance of any unlawful conspiracy respecting any manufacture, trade, business, or occupation or respecting any person or persons concerned or employed in any manufacture, trade, business, or occupation, or the wages of any such person or persons; or (eg. Assaulting a business person) (g) is a person of 60 years or over (h) is someone who relies on a guide dog, wheelchair or other remedial device (eg walking frame, calliper, walking stick or artificial limb) is guilty of a crime and liable for imprisonment of 7 years.

s320 Grievous Bodily Harm


In all below cases unlawfully means prohibited by law or not excused: Houghton v R. 2 ways it can be unlawful, by involving intentional violence or criminal negligence.

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Under s320 Grievous Bodily Harm [page 492]:


Any person who unlawfully does GBH to another is guilty of a crime and is liable to imprisonment of 14 years.

Under s1 Definition of GBH: d) The loss of distinct part or an organ of the body; or e) Serious disfigurement; or f) Any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health; whether or not the treatment is or could have been available. R v Tranby the removal of a substantial portion of the ear lobe causing permanent cosmetic disfigurement but no impairment of bodily function was held NOT to constitute a permanent injury to health within the meaning of the old act definition. These facts would be likely to fall under GBH because it would be a serious disfigurement under the CC. R v Lobston in deciding what amounts to bodily injury of such nature as to endanger or be likely to endanger life or to cause or be likely to cause permanent injury to health, regard is to be had to the nature of the injury itself at the time the harm is done and not to the surrounding circumstances and the availability of medical attention. R v Stuart A strike causing the victim to lose their teeth (and injury to gums) was held to amount to grievous bodily harm. Disease R v Clarence it was held that the communication of disease did not amount to an assault occasioning bodily harm on the basis that no assault was involved. However, this would not apply to GBH because an assault not an element. If the expression bodily injury is capable of including disease, it has been argued that communication of the disease would constitute bodily injury because its likely if untreated to cause permanent injury to health. [page 170/171] A man knew he had gonorrhoea, had sex with his wife and passed on gonorrhoea. At that time
there was no offence, but today it would fall under bodily injury if the definition of GBH. Assault was not held to be relevant to GBH.

In R v Chan-Fook court was prepared to include disease in actual bodily harm. See page 123 Colvin Text: R v Reid (2007) 1 Qd R 64 Under the CC if a disease is transmitted, it need not be intended and if there was intent to transmit a disease, it need not have been transmitted: pg 98 txt. Likely: The term likely has been held to mean real and not remote chance regardless of whether it is less or more than 50%: R v Gould and Barnes [1960] Qd R 283.
As to consent to GBH , wounding, torture, etc see pg 97Txt (likely they cant be consented to)

Question of causation for doing GBH (and wounding): Usually determined by the foreseeability (harm must have been foreseen or at least foreseeable: s 23) R v Kunsten
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Exam Preparation Notes Sem 1, 2002

o Would an ordinary person, then and there at the time the accused did the unlawful act, beyond reasonable doubt have foreseen that injury was likely to be sustained in the manner in which injury was in fact sustained by the victim? o Its not a matter of foreseeing the details or degree of the injury. o Its a matter of foreseeing the probability of some injury being received in the manner in which known injuries were in fact received o Need to distinguish between foreseen as really likely or probable and remotely possible or fanciful. Also, Royalls case o Need to be some positive act (eg. stabbing) or omit to do something (criminal negligence) when in charge of dangerous objects o Criminal negligence (responsibility for consequences that flow from the act) would satisfy the causation requirement under s320. Also in R v Stuart: It must be established beyond reasonable doubt that when the accused did the deliberate, willed act causing grievous bodily harm, injury of the kind in fact suffered must be foreseeable (rather than injury of any kind being foreseeable).

s320A Torture:
Under s320A Torture [page 494]:
(1) A person who tortures another person commits a crime (max penalty 14 yrs imprisionment) (2) In this section: torture means the intentional infliction of severe pain or suffering on a person by an act or series of acts done on 1 or more than 1 occasion pain and suffering included physical, menta, psychological or emotional pain or suffering, whether temporary or permanent.

Elements: The accused inflicted sever pain or suffering on another person, and Such infliction was intentional, and It was inflicted by an act or a series of acts done on one or more occasion R v Brown where abuse of parent/child relationship a course of conduct over several weeks of a 17 yr old daughter o Likely that a person convicted of torture where intentional infliction on more than one occasion, will be declared serious violent offender (eg. must serve 80% of the sentence) R v Griffin: A man used a electric shock of up to 600 volts on his 5 year old son for discipline. It was a hand operated generator. After that he would tell him he was obliged to do it. Boy didnt receive any injuries, but was terrified while getting shocked. So he couldn't be charged with GBH, wounding, etc. All crown could do was charge him with assault. He got 6 months. R v Geddes: 14 year old was made to eat faeces and was held underwater in a bath until bubbles came out of his mouth. He was kicked, bruised, black eyes and his penis was inured. Court held, that all right minded people would feel revulsion from these facts.
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o See also: R v Robinson and Stokes, Ex parte A-G, R v Burns

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Exam Preparation Notes Sem 1, 2002

S323 Wounding:
Under s323 Wounding and Similar Acts [page 497]: (1) Any person who a) unlawfully wounds another; or b) unlawfully, and with intent to injury or annoy any person, causes any poison or other noxious thing to be administered to, or taken by, any person; is guilty of a misdemeanour, and is liable to imprisonment for 7 yrears. (2) Offender may be arrestable without a warrant.

The true skin (the dermis) of the victim must be broken or penetrated constitute wounding (i.e. the epidermis top layer of the skin is penetrated) Bruising or scratching not sufficient (C v Eisenhower) Wound needs to bleed (R v Jervis) Nature of the means by which the wound is inflicted is immaterial (R v Smith used hammer; R v McLoughlin used bottle; R v Duffill the use of an instrument is not necessary; R v Waltham wound caused by kick) {common charge where beer glass/jug/bottle involved!!!)

Wound = skin of the victim should be broken and should bleed Jervis: (vampire) In Brisbane, 4 girls lured a guy into a car. One girl claimed to be a vampire needing to suck his blood. They took him by river and bit him. The true skin must be penetrated or broken, bruising and surface scratches are insufficient. Eisenhower: An air gun that fires pellets into someones eye that ruptures internal blood vessels but does not break the skin, is not a wound. Judge said: So we can see a picture emerging. There must be a break in the continuity of the skin. It must be a break in the continuity of the whole skin, but the skin may include not merely the outer skin of the body but the skin of an internal cavity of the body where the skin of the cavity is continuous with the outer skin of the body. It is not enough that there has been a rupturing of blood vessel or vessels internally for there to be a wound.

Offences where specific intent is required:


s315 Disabling in order to commit indictable offence [page 484]
Any person who, by any means calculated to choke, suffocate, or strangle, and with intent to commit or to facilitate the commission of an indictable offence, or to facilitate the flight of an offender after the commission or attempted commission of an indictable offence, renders or attempts to render any person incapable of resistance, is guilty of a crime, and is liable to imprisonment for life.

s316 Stupefying in order to commit indictable offence [page 484]


Any person who, with intent to commit or to facilitate the commission of an indictable offence, or to facilitate the flight of an offender after the commission or attempted commission of an indictable offence, administers, or attempts to administer, any stupefying or overpowering drug or thing to any person, is guilty of a crime, and is liable to imprisonment for life.

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Under s317 Acts intended to cause GBH and other malicious acts [page 485]:
Any person who, with intent a) to maim, disfigure or disable, any person, or b) to do some GBH or transmit a serious disease to any person, or c) to resist or prevent the lawful arrest or detention of any person, or d) to resist or prevent a public officer from acting in accordance with lawful authority either e) in any way unlawfully wounds, does GBH, or transmits a serious disease to, any person, or f) unlawfully strikes, or attempts in any way to strike any person with any kind of projectile or anything else capable of achieving the intention, or g) unlawfully causes the explosive substance to explode, or h) sends or delivers any explosive substance or other dangerous or noxious thing to any person, or i) causes any such substance or thing to be taken or received by any person, or j) puts any corrosive fluid or any destructive or explosive substance in any place, or k) unlawfully casts or throws away such fluid or substance at or upon any person, or otherwise applies such fluid or substance to the person of any person, is guilty of a crime and is liable to imprisonment for life.

The accused must have done one of the things mentioned in (e) (k) [that is (i) (ii) in the scanned elements box] with the intent to one of the things in (a) (d) [that is point 2 (i) to (iv)]. Crown must prove some kind of intent contained in subsections (a) to (d) [see above] Meaning of maim see R v Woodward where Douglas J held that to maim means to deprive a person of the use of some member, to manipulate or to cripple (to affect their fighting capacity) o Eg. to deprive man of his teeth or his hand or his arm or his leg is to maim him, but NOT when you deprive his of his nose or ears
o Eg. throwing a fluid (petrol) at a groups of men was to deprive one or more of them of the use of some member, or to mutilate that person or to cripple that person in other words put him out of action. [K pg 223 para 13.26]

Serious disease: s 1 CC discussed in (317 1(b)) Serious disease means a disease that would, if left untreated, be of such a nature as to Dooley & Associates (A. OHran & R. Richmond) page 38 of 87

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(a) cause or be likely to cause any loss of a distinct part or organ of the body; or (b) cause or be likely to cause serious disfigurement; or (c) endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health; whether or not treatment is or could have been available. 328 CC Negligent acts causing harm (1) Any person who unlawfully does any act, or omits to do any act which it is the persons duty to do, by which act or omission bodily harm is actually caused to any person, is guilty of a misdemeanour, and is liable to imprisonment for 2 years. Duties 285 Duty to provide necessaries 286 Duty of person who has care of child 288 Duty of persons doing dangerous acts 289 Duty of persons in charge of dangerous things 290 Duty to do certain acts

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Week 6
Sexual Assault
s349 Rape
Under s349 Rape [page 537]: (1) Defines and punishes rape (2) Extends to include penal penetration (now all types of penetration are rape) 1) A person who rapes another person is guilty of a crime. 2) A person rapes another person if a) the person has carnal knowledge with or of the other person without the other persons consent; or b) the person penetrates the vulva*, vagina* or anus* of the other person to any extent with a thing or a part of the persons body that is not a penis without the other persons consent; or c) the person penetrates the mouth of the other person to any extent with the persons penis without the other persons consent. * Definitions of vagina, vulva, penis or genitalia are defined in s1 to include surgically constructed genitalia as to recognise post-operative transgender chosen gender. Carnal knowledge s6 - Definition
If carnal knowledge is used in defining an offence, the offence, so far as regards that element of it, is complete on penetration to any extent.

s1 Additional Definition carnal knowledge includes sodomy. Penetration: s6 to any extent Mayberry and Ibbs cases it is complete upon penetration and it is a continuing offence according to Hanger CJ s347 excludes penetration for medical, hygienic or law enforcement purposes [page 534]

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s 352 Sexual Assault:


If not rape then it can be sexual assault under s352 (alternative verdict to rape) Under s352 Sexual assaults [page 548]:
(1) Any person who (a) unlawfully and indecently assaults another person; or (b) procures another person, without the persons consent (i) to commit an act of gross indecency; or (ii) to witness an act of gross indecency by the person or any other person; is guilty of a crime. Maximum penalty10 years imprisonment. (2) {aggravated}However, the offender is liable to a maximum penalty of 14 years imprisonment for an offence defined in subsection (1)(a) or (1)(b)(i) if the indecent assault or act of gross indecency includes bringing into contact any part of the genitalia or the anus of a person with any part of the mouth of a person. (3) Further, the offender is liable to a maximum penalty of life imprisonment if (a) immediately before, during, or immediately after, the offence, the offender is, or pretends to be, armed with a dangerous or offensive weapon, or is in company with any other person; or (b) for an offence defined in subsection (1)(a), the indecent assault includes the person who is assaulted penetrating the offenders vagina, vulva or anus to any extent with a thing or a part of the persons body that is not a penis; or (c) for an offence defined in subsection (1)(b)(i), the act of gross indecency includes the person who is procured by the offender penetrating the vagina, vulva or anus of the person who is procured or another person to any extent with a thing or a part of the body of the person who is procured that is not a penis.

Meaning of INDECENT: not defined in the Code needs to be sexual connotation ordinary and common meaning whats unbecoming or offensive to common propriety (Purves v Inglis) in R v Bryant (narrow) held that the definition in Purves v Inglis is too wide the meaning depends on the context (see s227-indecent act with intent to insult a person & CF s352-indecent assault; they are not the same!) o Re s227 emphasis is on the bodily act of the accused that is indecent judged by the prevailing community standards o Where as for s352 there is not necessarily bodily act between the accused and the victim (see Dragos comments below) but should have some sexual connotation (R v Court) o According to Sheahn J in R v Bryant he commented that the term required the bodily act involving the element of moral turpitude or of acting in a base of shameful manner. In Dragos case it was held that the narrow interpretation of indecency in Bryant had no application to sexual assault (s352) because not always necessary to have a bodily act to constitute an assault Meaning of PROCURE means knowingly entice or recruit for the purposes of sexual exploitation (but should be evident by applying s352(1)(b)(i) and (ii).
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Meaning of GROSS not defined in the Code but see R v Whitehouse Philip J held that the word should be given dictionary meaning of plain, evident, obvious. An indecent assault has been defined by the C of A as an assault accompanied with the circumstances of indecency on the part of the prisoner, that is to say, indecency offered towards the person alleged to have been assaulted (Bell v Kelly) Other sexual touching or conduct not involving penetration, is sexual assault13. If there is doubt, look at the motive of the purpose of doing the act.

LACK OF CONSENT:
Prosecution must prove B.R.D. lack/absence of consent 4 primary lines of defence re sexual assault 1. Denial of consent with the complainant at the time of the alleged offence 2. Admission to contact but denial of sexual encounter 3. Admission of sexual encounter but assertion that with consent 4. mistaken belief in consent (i.e. even if complainant did not in fact consent the accused believed it was consent)

Under s348 Meaning of consent: [page 534]


(1) In this chapter, consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent (2) without limiting subsection (1), a persons consent to an act is not freely and voluntary, given it is obtained (a) by force; or (b) by treat or intimidation; or (c) by fear of bodily harm; or (d) by exercise of authority; or (e) by false and fraudulent representation about the nature or purpose of the act; or (f) by a mistaken belief induced by the accused person that the accused was persons sexual partner.

Under sub(1) it is taken that the consent must be freely obtained and its vitiated (negatived) by one of the elements in sub(2). The consent is characterised to be a positive state of mind. (a) (b) By force self explanatory By threats or intimidation Of any kind under previous section in PS Shaw(under different provision) Pincus J identified four areas of uncertainty 1) whether threat or actual application force is limited to victim 2) whether threats or intimidation are limited to serious bodily harm Pincus J substantial harm Fitzgerald P serious level of harm McPherson J threats of intimidation of any kind 3) whether victims belief that she is being threatened need be reasonable 4) whether threats need be immediate

(c) By fear of bodily harm self explanatory


13

Touching of a girls breast is sufficient to amount to an indecent assault (R v Harkin). page 42 of 87

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(d) (e)

Note s1 definition bodily harm defined as any bodily injury which interferes with health or comfort. By exercise of authority New addition to the code and its still vague R v Brewer (NZ) man abused his position as he interviewed potential employee & asked for sexual favours & advantages14 There is a need for a nexus between authority and vitiating free & voluntary consent Being in authority eg. dismissal from employment, fail person in the exam. If some consent obtained from a position of authority, it is not freely given consent.

By false and fraudulent representations about the nature or purpose of the act In Papadimitropoulos HC held that there are two types of fraud which vitiate consent: 1) Fraud as to the true character of the sexual act (whether the complainant understood the physical significance of the sexual intercourse) 2) Fraud as to the identity of the accused (distinction between what is being done and why it is being done) It was held that the woman understood the character of the sexual (physical) act notwithstanding the fact that it might have been immoral She understood what is being done & consented to that Fraud occurred to the legal status of the marriage. In Williams the singing master & pupil held to be rape because the gild consented to improving her voice & not sex with him. In Mobilio radiographer whose female patients consented to introduction of ultrasound probe for medical purposes held not to be rape because the women consented to insertion of the probe Now under s348(2)(e) it is also included that the consent vitiated if the purpose (rather then the nature) of the act is fraudulent Also, see s347 for definition of penetrate (only for medical purposes)

(f)

By a mistaken belief induced by the accused that the accused is the person's sexual partner Now under s348(2(f) no consent where the person mistakenly believes accused is sexual partner in circumstances whee accused did not deliberately impersonate the partner( BOYFRIEND IS INCLUDED) Pryor Kake complaint thought her nocturnal visitor was her husband HELD: there must be intentional passing off in the character of another person Passing off includes speech, nodding to a question and similar Personate = pretend to be that person Need for intention what was in the mind of the accused Under s24 Mistake of fact: [page 225]
14

This failed in NZ because the section in the act required the detriment to be suffered by the victim and grant of employment was a hypothetical benefit and therefore no detriment. Dooley & Associates (A. OHran & R. Richmond) page 43 of 87

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1) A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist. @ Common Law DPP v Morgan Husband encouraged by 3 other friends to have intercourse with his wife H of Lords held that honest (subjective) belief that victim consenting sufficient, and its not necessary that it be reasonable @ QCC A-Gs Reference No 1 1977 Mistake under s24 must be both honest and reasonable (objective) Re attempted rape: - held honest belief sufficient because s4 [attempt section page 180] requires intention to commit offence honest belief in consent is inconsistent with intention to commit rape

SEXUAL ASSAULT EVIDENTIARY MATTERS


Other sexual offences Non-consensual offences: Attempt to commit rape: s 350 Assault with intent to commit rape: s 351 Offences where consent is immaterial: Unlawful sodomy with a person under 18 or intellectually impaired: s 208 Indecent treatment of children under 16: s 210 Unlawful carnal knowledge of children under 16: s 215 Using electronic communication to procure children under 16 to engage in a sexual act: s 218A Incest: s 222 Bestiality: s 211

Above under assault

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Week 7 part I
Domestic Violence
Legislative avenues against DV: Domestic Violence (Family Protection) Act (Qld) o Re spouse and spousal relationships (incl biological parents of a child) Queensland Criminal Code (Qld) o Stalking provisions and assault o Also, the abuse has to have already occurred (R v Wood) Peace and Good Behaviour Act (Qld) DV(FP) Act reflects the extension of the protection to: Spousal relationship intimate personal relationship (dating) family relationships (abuse b/w relatives) informal care relationships (1 person depending on another for daily activities) DV(FP) Act will protect: parents from their children other family members (eg. Grandparents, parents-in-law, aunts-in-law) dating abuse or girl/boyfriend if enmeshed elder abuse abuse of informal care setting of people with disabilities (but not nursing homes etc) DV Protection Orders: Simply a generic term for different orders under the act to protect victims of DV Also known as apprehended violence/intervention/restraining orders In the DV(FP) Act the orders are referred to as: o Domestic Violence Order (DVO) under s13(2) Protection Order (PO) under s20(1) [permanent form of DVO] Temporary Protection Order (TPO) under Part 3 Div 2 [immediate cover & then decide whether to grant PO or not]

DV(FP) Act can be divided into two parts:

Making of DVOs
the relevant standard is on balance of probabilities

Enforcement of DVOs
the relevant standard of breach is B. R. D.

(under s9)
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Under s11(1) - Domestic Violence is defined as:


(1) Domestic violence is any of the following acts that a person has committed against his or her spouse 1) wilful injury; 2) wilful damage to the [spouse]s property; 3) intimidation or harassment of the [spouse]; 4) indecent behaviour to the [spouse] without consent; 5) a threat to commit an act mentioned in paragraphs (a) to (d). Examples 1. Following the spouse when the spouse is out in public, either by car or on foot. 2. Positioning oneself outside the spouses residence or place of work. 3. Injuring, or threatening to injure, the spouses pet. 4. Repeatedly telephoning the spouse at home or work without consent (whether during the day or night). (2) A spouse need not personally commit the act or threaten to commit it.

Spouse is defined under s12 :


(1) A spouse means (a) either 1 of a male or female who are or have been married to each other; or (b) either 1 of the biological parents of a child, whether or not they are or have been married or are residing or have resided together; or (c) either 1 of 2 persons, whether of the same or the opposite sex, who are residing or have resided together as a couple. (1A) (1B) For subsection (1)(c), 2 persons are a couple if they reside together in a relationship that is normally considered by the community to indicate that they are a couple. A relationship mentioned in subsection (1A) is one formed on the basis of intimacy, trust and personal commitment and does not include, for example, a relationship where the 2 persons are merely cotenants. An aggrieved spouse means the spouse for whose benefit a domestic violence order is in force or may be made under this Act. A respondent spouse means a person against whom a domestic violence order is in force, is sought or may be sought, under this Act.

(2) (3)

Under s14 - Who may APPLY under DV(FP) Act? An aggrieved spouse may apply or o Police officer [ss3 & also see s67(2)(c)], or o Solicitor (legal aid available for protection orders) o Authorised person (eg. Write a letter authorising a friend, relative, welfare/community worker) [ss3] Relatives and associated have NO present standing to bring an application (unless they are authorised person by aggrieved spouse) but under s15 they can be included in the PO Procedure for the Application: PO Application to be made to Magistrate Courts Once made (or application for variation or revocation of order) then either of the two are issued: (1) Urgent TPO made ex parte (w/out respondent spouse being there) and then all parties required to be back to the court, or
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(2) Court allocated a date for about 3-4 weeks time for hearing THEN Police serve respondent spouse with application and summons to court THEN the consent order made or adjournment or contested hearing with witnesses or respondent might not even turn up

Under s 20 - Power of court to make orders to protect spouse against DV: Court may make PO respondent only if satisfied on BOP of 2 matters: (1) the respondent spouse has committed an act of domestic violence against the aggrieved spouse; the respondent: (i) is likely to commit an act of domestic violence again; or (ii) if the act of domestic violence was a threatis likely to carry out the threat. This usually lasts for 2 years and its a civil (non-criminal) remedy. Under s21 Power of court to make orders to protect relatives or associates of aggrieved spouse against violence etc. (2)

Conditions on DVO:
Under s25(1) even if the court does not include in DVO the conditions imposed under s22 and s23, the order is taken to include those conditions. Under s22 PO must include standard condition to be of good behaviour
In making a domestic violence order, the court must impose a condition that the respondent spouse a) be of good behaviour towards the aggrieved spouse and not to commit domestic violence; and b) be of good behaviour towards any aggrieved person named in the order and not to commit an act of associated domestic violence against the person.

Under s23 PO must include standard condition about weapons and firearms
(1) This section is subject to any court order made under section 28. (2) In making a domestic violence order, the court must provide that the respondent spouse is not to possess a weapon for the duration of the order. (3) In making a protection order, the court must revoke all weapons licences issued in the name of, or in relation to, the respondent spouse. (4) In making a temporary protection order, the court must suspend all weapons licences issued in the name of, or in relation to, the respondent spouse. (5) In making a domestic violence order, the court must remove the name of the respondent spouse endorsed on a weapons licence as the representative of a body under the Weapons Act 1990, section 10(3). (6) If the Weapons Act 1990 does not apply to the respondent spouse because of section 2 of that Act, the court must order that the Weapons Act 1990 applies to the respondent spouse for the duration of the domestic violence order, unless that Act does not apply (a) because of section 2(1)(a) to (c) or (k) of the Act; or (b) because of section 2(1)(h) or (l) of the Act and the fact that the person is dealing with the weapon on behalf of the Commonwealth.

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Under s23A Action by court if respondent has access to weapons thru work
1) In making a domestic violence order, the court must consider whether the respondent spouse has access to a weapon as part of the respondent spouses employment. 2) If the court is satisfied the respondent spouse has access to a weapon as part of the respondent spouses employment, the court must a) consider the circumstances of the employment; and b) consider the respondent spouses access to the weapon; and c) consider the employment arrangements and whether there is an effective individual within the employing entity on whom to serve the domestic violence order to ensure the respondent spouse does not possess a weapon as part of the respondent spouses employment; and d) if there is an effective individual within the employing entity on whom to serve the order state in the domestic violence order that it is to be served on the individual. 3) If the court states the order is to be served on an effective individual within an employing entity, the clerk must arrange for service of the order on the individual. 4) The effective individual may disclose information about the order to another person within the employing entity to the extent necessary to ensure the respondent spouse does not possess a weapon as part of the respondent spouses employment. 5) However, the effective individual must not disclose information about the order to anyone else, other than as permitted under subsection (4) or expressly permitted by a court or magistrate under section 82 (Restriction on publication of proceedings). Maximum penalty for subsection (5)40 penalty units or 1 years imprisonment.

Also under s 24 Arrangements for surrender of revoked or suspended licences etc. Under s25 Other conditions:
(2) When a court makes or varies a domestic violence order, it may also impose conditions on the respondent spouse that the court considers (a) necessary in the circumstances; and (b) desirable in the interests of the aggrieved spouse, any aggrieved person and the respondent spouse. (3) The conditions the court may impose on a respondent spouse include, for example (a) prohibiting stated behaviour of the respondent spouse that would constitute an act of domestic violence against the aggrieved spouse or an act of associated domestic violence against an aggrieved person; and (b) prohibiting the respondent spouse from doing all or any of the following in relation to stated premises even though the respondent spouse has a legal or equitable interest in the premises (i) remaining at the premises; (ii) entering or attempting to enter the premises; (iii) approaching within a stated distance of the premises; and prohibiting the respondent spouse from approaching, or attempting to approach, the aggrieved spouse or an aggrieved person, including stating in the order a distance within which an approach is prohibited; and prohibiting the respondent spouse from contacting, attempting to contact or asking someone else to contact the aggrieved spouse or an aggrieved person, including, for example, if the aggrieved spouse or aggrieved person has taken shelter at a refuge; and

(c)

(d)

(e) prohibiting the respondent spouse from locating, attempting to locate or asking someone else to locate the aggrieved spouse or an aggrieved person if the aggrieved spouses or aggrieved persons whereabouts are not known to the respondent spouse; and (f) prohibiting stated conduct of the respondent spouse towards a child of the aggrieved spouse, including prohibiting the respondent spouses presence at or in a place associated with the child.

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Under 25(5) - The following matters are to be of paramount importance to the court when it imposes conditions on the respondent spouse (a) the need to protect the aggrieved spouse and any aggrieved persons; (b) the welfare of a child of the aggrieved spouse. Part 2 Division 2 allows for the registration of PO interstate and NZ.

Breach of the PO
Breach prosecutions Part 7 Any breach prosecutions are mainly commenced by the police They are co-existing provisions of QCC (assault, sex assault etc)

Under s 80 - Breach of order or conditions: 1) A respondent spouse must not contravene a protection order, temporary protection order or any
other order made under this Act, including a condition imposed by the order, if a) the respondent spouse was present in court when the order was made; or b) the respondent spouse was served with a copy of the order; or c) a police officer told the respondent spouse about the existence of the order. Maximum penalty40 penalty units or 1 years imprisonment. 2) However, a court may not find a respondent spouse contravened an order merely because a police officer told the respondent spouse about the existence of the order, unless the court is satisfied the police officer told the respondent spouse about the condition that it is alleged the respondent spouse contravened.

3) It is not a defence in proceedings for an offence involving an interstate order that a person did not
know the interstate order a) could be registered in Queensland; or b) was registered in Queensland. 4) A respondent spouse who knowingly contravenes or fails to comply with the conditions on which the respondent spouse is released from custody under section 71(3)(d), other than that the respondent spouse appears before a court at a specified time and place, commits an offence against this Act and is liable to a penalty not exceeding 40 penalty units or 12 months imprisonment.

Standard of proof beyond reasonable doubt Immediate steps for issuing of DVOs:

Under s 39A Act of domestic violence necessary before particular temporary protection orders made
(1) A court may make a temporary protection order against a respondent spouse under this division, other than section 39D,11 only if it appears to the court, on application for a protection order, that an act of domestic violence has been committed against the aggrieved spouse by the respondent spouse.

On application for PO, court may make TPO first if it appears that act of DV has been committed

Under s54, the police can make applications by telephone, facsimile etc to a magistrate 24hrs a day to obtain TPO (also under s39G magistrate can make TPO if it appears that because

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of distance, time or other DV(FP) Act circumstance of the case, it is not practicable to apply to a court for a protection order and for it to be heard and decided quickly)

Under s69 Presence at domestic violence incident Broad police powers to take respondent spouse into custody and detain
1) A police officer who has reasonable grounds for suspecting that an act of domestic violence has been committed and a) a person is in danger of personal injury by the respondent spouse; or b) a persons property is in danger of being damaged by the respondent spouse; may take the spouse into custody using such force as is reasonable and necessary.

2) The respondent spouse taken into custody may be held in custody until the earliest of the
following happens a) an application for a PO in which the spouse is named as the respondent spouse is heard and decided under section 71(1); b) a TPO is made under section 39G; c) an application for a protection order is completed, and arrangements are made with the watchhouse manager, under section 71(3).

Under s69(4) the respondent spouse can be held up to 4 hours in custody if a watchhouse manager believes it necessary for arrangements to be made to safeguard aggrieved.

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Week 7 part II
Stalking s359A
This is a specific form of harassment or intimidation generally designed to torment and cause fear in another person. Under QCC: S359A Definitions S359B Unlawful stalking S359C Matters that are immaterial to unlawful stalking under s359B S359D Recast defences S359E Punishment crime 5 years (with aggravation 7 years) S359F Injunctive relief Under s359A Definitions: [page 559]
detriment includes the following (a) apprehension or fear of violence to, or against property of, the stalked person or another person; (b) serious mental, psychological or emotional harm; (c) prevention or hindrance from doing an act a person is lawfully entitled to do; [eg. Turn the lights on, leaving phone hook off] (d) compulsion to do an act a person is lawfully entitled to abstain from doing. [eg. Person sells property would not otherwise well] EXAMPLES OF PARAGRAPH (C) A person no longer walks outside the persons place of residence or employment. A person significantly changes the route or form of transport the person would ordinarily use to travel to work or other places. EXAMPLE OF PARAGRAPH (D) A person sells a property the person would not otherwise sell. violence (a) does not include any force or impact within the limits of what is acceptable as incidental to social interaction or to life in the community; and (b) against a person includes an act depriving a person of liberty; and (c) against property includes an act of damaging, destroying, removing, using or interfering with the property.

Under s359B(a) What is unlawful stalking? [page 560]: Unlawful stalking is conduct: (a) intentionally directed at the stalked person; and s 359C(1): it is immaterial whether offender intends the victim to be aware that the conduct is so directed; s 359C(1): also immaterial that offender is mistaken about the identity of the victim (eg, offender intends to stalk A and in fact stalks B); (b) engaged in on any 1 occasion if conduct is protracted or on more than 1 occasion;
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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

s 359C(3): it is immaterial whether the conduct consists of the same or different acts; no course of conduct now required; one protracted occasion sufficient: see Gunes v Pearson it wsa held that need to concentrate on true nature of offence rather than on technical count of no of acts done. However, absent one protracted occasion, one isolated instance not sufficient: still requirement for more than one instance of conduct, though may be same act type. (c) consisting of one or more acts of the following, or a similar, type (i) following, loitering near, watching or approaching a person; (ii) contacting a person in any way, including, for example, by telephone, mail, fax, e-mail or through the use of any technology; [CYBERSTALKING] (iii) loitering near, watching, approaching or entering a place where a person lives, works or visits; (iv) leaving offensive material where it will be found by, given to or brought to the attention of, a person; (v) giving offensive material to a person, directly or indirectly; (vi) an intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence; (vii) an act of violence, or a threat of violence, against, or against property of, anyone, including the defendant; and very similar to previous definition of concerning acts under s359A(7) which were found to cover almost every known act of human behaviour: see Robertson DCJ in R v Clarke [unreported] previous definition not found wanting. (d) [the conduct such] that: (i) would cause [but immaterial whether it actually causes or not under s359C(5)] the stalked person apprehension or fear, reasonably arising in all the circumstances*, of violence* to, or against property* of, the stalked person or another person; or (ii) causes detriment, reasonably arising in all the circumstances*, to the stalked person or another person *defined under s359A @ pg 559 Under s359C(4): Immaterial whether offender intended to cause the apprehension or fear ...of violence to person or property or the detriment referred to in s 359B(d). Under s359B(a) and (c), it is immaterial whether the conduct directed at the stalked person consists of conduct carried out in relation to another person or property of another person.

Mental element under Ch 33A:


Under s359B requirement simply that offender intended to direct conduct at the stalked person (ss(a)). Under s359C(1) it is immaterial that stalker did not intend victim to be aware or that stalker mistakenly stalks wrong person.
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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

Under s359C(4) - For section 359B(d), it is immaterial whether the person doing the unlawful stalking intended to cause the apprehension or fear, or the detriment, mentioned in the section offenders intention as to the consequences of his/her (intentionally) directed conduct is immaterial (catches erotomaniac). Under s359(d)(i) sufficient that the conduct would cause [doesnt have to cause] the stalked person apprehension of fear of violence to person or property, reasonably in the circumstances (immaterial whether apprehension or fear is actually caused)

Defences:
Defences onus on the accused to prove. Under s359D Particular conduct that is not unlawful stalking: [page 562] Unlawful stalking does not include the following acts a) acts done in the execution of a law or administration of an Act or for a purpose authorised by an Act; b) acts done for the purposes of a genuine industrial dispute; c) acts done for the purposes of a genuine political or other genuine public dispute or issue carried on in the public interest; d) reasonable conduct engaged in by a person for the persons lawful trade, business or occupation; e) reasonable conduct engaged in by a person to obtain or give information that the person has a legitimate interest in obtaining or giving. (acts done for purposes of a genuine industrial dispute or a political or other dispute in the public interest) New exculpatory matters added: Acts done in execution of a law or for administration or purposes of an Act Reasonable conduct engaged in for a persons lawful trade, occupation or business, or to obtain or give information that the person has a legitimate interest in obtaining or giving. Under s359F Court may restrain unlawful stalking [page 563] ss(1&2) when hearing unlawful stalking charge, if Court considers it desirable, it may consider making a restraint order against the person charged (whether the person is found guilty or not or the prosecution ends in another way) a restrain order proceedings under s359F(2) is not criminal the question of fact decided on balance on probabilities having a regard to stalking charge evidence and on any further evidence the court may admit (ss6)
restraining order against a person means any order considered appropriate for the purpose of prohibiting particular conduct, including, for example, contact for a stated period by the person with a stated person or the property of a stated person.

R v Ali Appellant & wife charged with stalking victim & her husband Trial J: difficult to image a worse case of neighbourhood stalking; a campaign of harassment and intimidation which continued after Ali charged and even after victim had moved away
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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

Per Davies J deliberate serious and sustained - caused victim serious emotional harm & placed her in financial difficulties due to need to move & inability to sell house Max penalty increased from 3 to 5 yrs on 30/04/99 Here confirmed sentence of 3 yrs imprisonment AND 15 yr restraining order prohibiting contact with Mr and Mrs H

Davies JA: Confirmed elements under s 359E: here that a person Engaged in acts of 1 or more of or similar to the types of acts specified in s 359B(c); [see above] On 1 occasion protractedly or on more than 1 occasion; Intentionally directed at a person; Of a kind which would cause that p apprehension or fear of violence reasonably arising in all the circumstances; Which did cause her apprehension or fear of violence or (relevantly) severe emotional harm reasonably arising in all the circumstances. Davies JA emphasised that reasonableness of stalkers conduct is irrelevant under the s359C

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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

Week 8

PROPERTY OFFENCES
S T E A L I N G
What are property offences? In Pearce v Paskov Virtue J held that:
...these offences can be classified under the heading of wrongful or fraudulent interference with the property of others which involve deprivation of, or interference with, the proprietary or possessory rights of the true owner or person in possession, or acts involving destruction or damage to the property of others.

Offences against property and possession of others

Property is defined in s1 QCC: property includes


a) b) c) d) e) every thing animate or inanimate that is capable of being the subject of ownership; and money; and electrical or other energy, gas and water; and a plant; and an animal that is (i) a tame animal, whether or not naturally tame; or (ii) an untamed animal of a type that, if kept, is usually kept confined; or (iii) an untamed animal in a persons possession or being pursued for return to possession after escape; and f) a thing produced by an animal mentioned in paragraph (e); and g) any other property real or personal, legal or equitable, including things in action (intellectual property) and other intangible property.

Stealing under the Criminal Code Nature of offence: offence of dishonesty (fraudulent intent is element) and deprivation of property Stealing is defined in s 391 The offence of stealing is created and punished in s 398 Note punishment is normally five years, but there is provision for punishment in special cases see special cases no 1-15

Under s 391 Stealing


1) A person who fraudulently takes anything capable of being stolen, or fraudulently converts to 2)
the persons own use or to the use of any other person anything capable of being stolen, is said to steal that thing. A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if the person does so with any of the following intents, that is to say a) an intent to permanently deprive the owner of the thing of it; b) an intent to permanently deprive any person who has any special property in the thing of such property; c) an intent to use the thing as a pledge or security; d) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform; e) an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion; f) in the case of moneyan intent to use it at the will of the person who takes or converts it, although the person may intend to afterwards repay the amount to the owner. page 55 of 87

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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

Elements of Stealing under s391: 1) Capable of being stolen definition under s390
Anything that is the property of any person is capable of being stolen if it is a) moveable; or b) capable of being made moveable, even if it is made moveable in order to steal it.

Movable or capable of being movable even if made movable in order to steal it (Billing v Pill) W.R.T. the bank credit it is unclear under the definition but see later discussion

2) Asportation refer s 391(6) need to be some kind of physical act not (theoretical)

391 The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act.

It applies to taking and conversion Accused must actually move or deal with goods by some physical act In Wallis v Lane the bike straps where moved in the truck but not taken out of the track on appeal it was held that it was sufficient for any movement of goods to move from the original location with intent to steal it. When is the offence of stealing complete? o See s391(6) above o Johnson [1973] Qd R 303 - ???

3) Fraudulent taking or conversion see s 391(2) for fraudulent intent(s) (also, see more on fraudulent intent on the next pages) a) an intent to permanently deprive the owner of the thing of it; b) an intent to permanently deprive any person who has any special property in the thing of
such property; c) an intent to use the thing as a pledge or security; d) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform; e) an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion; f) in the case of moneyan intent to use it at the will of the person who takes or converts it, although the person may intend to afterwards repay the amount to the owner.

Taking
Simple taking of goods with intent of stealing them Note that non-consensual taking not required under Code Good title must exist to be owner of the thing (look at the intention of the parties whether the intention was present when the thing was given)

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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

Conversion
not defined in Code In Caxton Publishing Co v Sutherland Publishing Co and also Gibbs J in Ilich held that it was dealing with the goods in a manner inconsistent with the right of a true owner account to conversion provided that it is also established that there is also an intention on part of the defendant, in doing so, to deny owners rights or to assert right which is inconsistent with owners right

o o o o o

Pincus J in R v Angus held that it is necessary to have some action conversion rather than passive possession In R v Angus the following factors were considered in determining conversion: Whether there is a valid demand of goods back? Length of time accused did not returned goods Accused used the good for own purposes (eg. Took stickers off) Accused kept changing addresses Accused sold the good Note that the conversion must be fraudulent and it can occur after taking (Ilich) Under s391(4) ... it is immaterial whether the thing converted is taken for the purpose of conversion, or whether it is at the time of the conversion in the possession of the person who converts it. Under s391(4A) It is also immaterial that the person who converts the property is the holder of a power of attorney for the disposition of it, or is otherwise authorised to dispose of the property. Under s391(5) When a thing converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at the time of the conversion the person taking or converting the thing does not know who is the owner, and believes, on reasonable grounds, that the owner cannot be discovered. Note that conversion can occur after taking, eg where taking may not be fraudulent - see Ilich (1987) 162 CLR 110 (see later discussion).

Money in the Bank cases:


What is the relationship between banker and customer? It is the debtor-creditor relationship Who owes the money? Bank owns all the notes and coin (Davenport) What authority does the bank teller have? Unlike ATMs, bank tellers are authorised by the banks to hand over the property of the banks (that is notes and coin) (Foley v Hill) What does a customer own?

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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

Customer only owns the credit in the account that is the balance of the account and not notes or coin deposited in the account because the same notes and coins cannot be recovered ever again (Crotons case) NOW a bank credit constitutes chose in action and can be stolen because of new definition in s 1

SEE ATM CASES ON THE NEXT PAGE

ATM Cases:
Kennison v Daire Easybank account closed but retained card which used in ATM that was off line - $200 withdrawals allowed - argued that ATM vested with similar authority to teller, therefore bank intended property in the money to pass HELD: An ATM was not invested with the general authority of the bank as in the case of an employee and there was no consent by the bank to the making withdrawals by the former customers whose accounts were closed R v Evernett Accused used flexicard to withdraw $778.97 from ATM while it was off line, while only had a balance of $181.03 in the account HELD: An action of the bank in programming the ATM to allow customers to withdraw funds in the event of it being off-line did not constitute permission by the bank to the customer to withdraw funds in contravention to the conditions under which customer was permitted to use ATM. R v Mujunen M deposited forged cheque to Westpac account and withdrew $1300 in 3 transactions: 2 ATM and 1counter withdrawals. Bank system allowed withdrawal before clearance, which was contrary to contract with bank. HELD: By majority, that the ATM could not be treated as it was person with authority to decide or consent on behalf of the bank. In the circumstances, the bank did not intent property in the money withdrawn to pass to the appellant because of the conditions imposed in the account. (thus charged with stealing at two ATM situations but not for the one over the counter)

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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

FRAUDULENT INTENT In order to constitute stealing, the taking or conversion must be fraudulent as per s391(1) and (2) above Under s391(2AA) definition of special property
special property includes any charge or lien upon the thing in question, and any right arising from or dependent upon holding possession of the thing in question, whether by the person entitled to such right or by some other person for the other persons benefit.

Note also inclusion of special property in ownership in s 391(7), and also s 396. Note that 391(a)-(b) require intention to permanently deprive whereas 394(c)-(f) can be temporary only. o Bailey taking a car for a joyride is not permanent deprivation of the property Under s391(3): taking or conversion may be fraudulent, although it is effected without secrecy or attempt at concealment. Under 391(2)(a) Fraudulent intent must be present at the time of the taking or conversion o @ Common Law position where can later form intention: Davies & Potisk Under s 391(4) clear that the thing can be in possession of person who fraudulently converts it (see also Ilich)

R v Ilich: Facts: Ilich a vet acting as locum tenens. Charged with stealing $600 from Brighton (owner of surgery) under WA Code - dispute over exact facts accidental overpayment Ilich claimed he had separated out the overpayment and placed in the car. Central issue was whether Ilich acquired ownership of money - if so, could not be guilty of stealing. HELD: Money when mixed with other currency is lost and there are problems with transferability Money cannot be followed and when paid into the bank is converted into currency for example. Wilson and Dawson JJ o property passes with possession o No problems with identity of person or property therefore the transaction is bonefinde Dean J o Also, because the money was paid for consideration, it was not possible to appoint and separate consideration to any of the particular notes o Ilich was paid for his work performed Brennan J o No fundamental mistake o Had civil obligation only to pay back if know that it was not his money o Property in notes passed with circumstances

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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

Section 391(2A) - Taking possession of things not identifiable (post Ilich and petrol fraud cases)
391 (2A) A person who has taken possession of anything capable of being stolen in such circumstances that the thing thereupon is not identifiable is deemed to have taken or converted the thing fraudulently notwithstanding that the property in the thing has passed to the person if, at the time the person transports the thing away, the person has not discharged or made arrangements with the owner or previous owner of the thing for discharging the persons indebtedness in respect of the thing. (2B) The presumption provided for by subsection (2A) is rebuttable.

o This is to cover for petrol type of situations o Usually its taking without making arrangements about persons indebtedness o 2B The rebuttal is on the accused to rebut the presumption 4) Must be owned by another Ownership Generally, the property must belong to an owner see definition in s391(7): owner includes the owner, any part owner, or any person having possession or control of, or any special property in, the thing in question. A person cannot steal what is already theirs (Ilich) R v Smalley Held in that case cannot be guilty of stealing own chattel, even if property has passed by a false pretence or false promise R v Walk Charged with stealing furniture as tenant of flat - Crown alleged ownership in the executor of a deceased estate - unable to produce grant of probate - Crown Prosecutor given leave to amend alleging ownership in letting agent - appeal to CCA. HELD: Control came under the definition of ownership and it bears natural meaning and includes types of control even if not in the persons physical possession. Proof of ownership o Trainer ownership of property must be laid in the indictment and proved note also power of amendment - can also allege stealing from person or persons unknown under Code (as long as its owned by someone and not abandoned goods). o OBrien [1981] WAR 305 where charge of stealing drugs from Cth Repatriation Commission - unable to properly prove ownership - attempted to amend to property of persons whose identity is not proved.... - amendment not allowed, as identity was known, just unable to be proven.

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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

Week 9 Regulatory Offences/Fraud/UUMV/Extortion

Please see contact Alen for this section!!!

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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

Motor Vehicle Offences


Dangerous Operation (Driving) s328A Code and note s84 TO(RUM) Careless Driving s83 Transport Operations (Road Use Management) Act 1995 Driving while under the Influence of alcohol or a drug s79(1) TO(RUM) Driving whilst the concentration of alcohol in the blood equals or exceeds the statutory limit s79(2) TO(RUM) Refusal to supply

Under s328A Dangerous operation of a vehicle (QCC):


(1) (2) (3) (4) operates, or in any way interferes with the operation Of a vehicle In any place Dangerously
Circumstances of aggravation

ss2-4 cover prior convictions, intoxication, causing death or GBH with correspondingly more serious penalties

(1)

Operates
Hansard 4/12/96 use of the term "operate" is wider than "drive" and would include to drive, handle, run, use, conduct or work; What is encompassed in driving? No definition in the Code & refer to CL o Control issue - the physical control over the movement and direction of the motor vehicle in a substantial sense Where steering towed vehicles o MacNaughton v Garland - In Qld, not driving where person controlling steering and operating brakes in vehicle being towed and engine not running (limited control over direction and speed therefore not driving) Where epilepsy/stroke/concussion o Not driving (Hill v Backster) Passenger taking hold of steering wheel o Not driving if took hold of wheel while other person controlled propulsion (R v Murray) o Covered by new wording Note Hansard 4/12/96 second reading speech

The offence will also encompass a person who interferes with the operation of a vehicle in a dangerous manner such as pulling on the steering or pulling on a handbrake, for example, while another person is driving;

Coasting down a hill o Constitutes driving Allan v Quinlan


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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

o Motorcycle, engine not on, able to control brakes and direction Vehicle being pushed o Engine not running, someone at steering wheel, being pushed by another vehicle o Not driving because limited control over movement of the vehicle McGrath v Cooper According to Gillard J steering is not driving. Driving requires urging to go forward and thus implies compulsion. Driving instructor o More than one person may be driver eg dual controls o However if no dual controls then instructor not driving Rowe v Hughes

(2)

Vehicle
Defining Motor Vehicle for the purposes of TORUM
(a)motor vehicle means a vehicle propelled by a motor that forms part of the vehicle, and includes a trailer attached to the vehicle. (TORUM Definitions Schedule 4)

s79 of TORUM also covers driving of a tram, train or vessel Act includes provision for other vehicles: (b)s79(7) Any person who whilst under the influence of liquor or a drug drives or is in
charge of any horse or other animal on a road, or drives or is in charge of any vehicle (other than a motor vehicle) on a road, or attempts to put in motion any vehicle (other than a motor vehicle) on a road, is guilty of an offence.

QCC S1
(a)motor vehicle includes any machine or apparatus designed for propulsion wholly or partly by gas, motor spirit, oil, electricity, steam or other mechanical power, and also includes a motor cycle, or a caravan, caravan trailer or other trailer designed to be attached to a motor vehicle.

It is immaterial whether the machine or apparatus is incapable of use through mechanical defect or whether any part or parts thereof have been removed for any purpose or by any person.

(3) In any place


Note Hansard 4/12/96
the offence will no longer be restricted to public places and it will catch those who endanger the lives and well being of members of the public in places such as school grounds and on private premises, unless it is a place being used to race or test vehicles and from which other traffic is excluded at the time.

Definition 328A (5) [very wide ambit...] place does not include a place being used to race or test vehicles and from which other traffic is excluded at the time.

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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

(4) Dangerously
328A(5) operates, or in any way interferes with the operation of, a vehicle dangerously means operate, or in any way interfere with the operation of, a vehicle at a speed or in a way that is dangerous to the public, having regard to all the circumstances, including (a) the nature, condition and use of the place; and (b) the nature and condition of the vehicle; and (c) the number of persons, vehicles or other objects that are, or might reasonably be expected to be, in the place; and (d) the concentration of alcohol in the operators blood; and (e) the presence of any other substance in the operators body. What standard is to be applied in determining when operating dangerously? o Williams J in R v Webb There are two steps involved in determining that a driver should be convicted of dangerous driving.

(1)

the driving (that is what actually occurred) must be considered objectively by the tribunal of fact and be held to be dangerous (manner inconsistent with normal driving) Standard not the same as in torts (thus not looking for a reasonable and careful driver) Driver should put up justification for such driving (eg. Extraordinary circumstances increased bad weather driver would stop will depend how sudden it is)

(2)

There must be some fault on the part of the driver, which caused that danger to the public. R v Webb and see Kenny 241

Speed dangerous to the public


Speed: Grant v Shaw whether in all the circumstances the speed at which the vehicle is driven is dangerous to the public actually or potentially. o Apart from any question of speed the circumstances were that the appellant drove his car on a main road in a country district across an intersection which was fairly wide open for quite some distance at a time shortly after midnight when very little traffic might be expected. R vCrandall The question for the jury was whether the speed, whatever it was, constituted operating the vehicle dangerously in the circumstances. Those circumstances included a number of unsecured passengers, the fact that it was night time, and the absence of any other explanation for the loss of control of the vehicle which is illustrated by its swaying and its course as it went out of control. Consider the following factors: Time of the day Number of (unsecured) passengers
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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

Traffic on the road Speed travelled Type of road

Who is the public?


the public includes passengers in a vehicle whether in a public or private place. This had been an area of doubt prior to the last amendment Offence directed to the protection of human beings rather than property

OR

Way of driving dangerous to the public


Way = manner of driving Breach of road rules o e.g. R v Webb where swerved onto wrong side of road Question of fact McBride v R Barwick CJ Manner includes mechanical condition of the vehicle Mechanical defect may be relied on as defence to Dangerous Driving only if there was a total, sudden loss of control in no way due to the fault on the part of the driver

Was the manner of driving in itself dangerous to public?


Plus 5 factors in 328A(5): (a) the nature, condition and use of the place; and (b) the nature and condition of the vehicle; and (c) the number of persons, vehicles or other objects that are, or might reasonably be expected to be, in the place; and (d) the concentration of alcohol in the operators blood; and (e) the presence of any other substance in the operators body.

Does Blood Alcohol Concentration (BAC) result in DDMV?


R v Smith Alcohol consumption a relevant and admissible point in considering the manner of driving but in itself not decisive & not automatic DD [DD causing death, head on collision, on wrong side of road, indicia (see s80(24)), blinded by lights?] R v Douglas [only evidence of DD was intoxication] Question that needs to be determined is the speed or manner of driving having regard to all of the circumstances of the case including blood alcohol level

Is the driving actually or potentially dangerous taking into account all relevant circumstances?
Therefore
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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

Is the speed &/or manner of driving dangerous taking into account all the circumstances of the case i.e. applying objective test? Is there actual or potential danger to the public?

s328A(4) where death or GBH involved ..


Circs of aggravation to be specifically pleaded s564, always the alternative verdicts s 575 Crown must prove causal relationship between the dangerous operation and the death or gbh

Causation test?
In Amos it was held that it must be shown beyond a reasonable doubt that the dangerous driving was a substantial cause of the death. Also later case of Campbell not a philosophical or scientific question, but a question to be determined by applying common sense

Whether the charge is Dangerous Operation causing DEATH or MANSLAUGHTER? If the operation of MV is deliberately reckless, careless, momentarily inattentive the its Dangerous Operation as per Williams J in R v Webb. In McBride Barwick CJ stated This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others. This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby. In Wooler Campbell J held that where driving results in deathmanslaughter always a potential but should be reserved for the most serious of offences In OBrien The case involves a really wicked piece of driving. o Excluding only those rare cases in which a motor car has been intentionally used as a weapon, the crime of manslaughter is the most serious offence which can arise out of the use of a motor car. o cases involving homicide caused by extreme culpability Wright J In R v Thomas a man was charged with DD causing manslaughter because he was sitting in the back of the car while 16 yr old girl without licence was driving when other teen grabbed steering wheel

Careless driving s83 TORUM


Driving without due care and attention Drives Motor vehicle On a road or elsewhere
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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

Without due care or attention or without reasonable consideration for other persons on the road or place Test: o Johannesen v Zeller Objective standard failure to exercise care and attention on the part of reasonable and prudent driver o Butler v Livett - Was driver careless and inattentive o Cooper v Shorten [1976] 4 QL 317 Deliberate conduct

DRINK DRIVING OFFENCES: Major Offence s79(1) under the influence .15 or over Minor Offence s79(2) Blood alcohol level more than .05 but less than .15 Failure to supply

Elements:
1) Drives or in charge of or attempting to put in motion 2) Motor vehicle 3) On roads or elsewhere

1)

In charge of

The rebuttable presumption arises under s124(1)(t) of TORUM that any person who appears, acts, or behaves as the driver, rider, or person having the possession, custody, care, or management of any vehicle, tram, train, vessel, or animal, or who uses or drives, or attempts to use or drive the same shall be presumed to be the person in charge thereof whether the person is or is not the real person in charge, and it is immaterial that by reason of circumstances not known to such person it is impossible to drive or otherwise use the same; Person sleeping in the drivers seat of the car is caught under the DD presumption Very wide presumption and historically applied broadly Presumption rebuttable

White v Wood Asleep in the MV but keys placed on steps of house Found guilty initially because of the presumption but on appeal overturned Presumption rebutted on the basis of the keys on the steps of the house Elloy v Noble (unreported) Appellant owned car and allowed another to drive him as passenger After the accident driver fled & the appellant offered to pay for damage Appellant leaned against car while being questioned by police & keys still in ignition HELD: Wylie DCJ before a person in the position of the appellant can be said to be in charge of the relevant mv, he must be shown to have actual or potential physical control of the vehicle and an intention (which may be express or inferred) to exercise such control. Appellant was not in the charge of mv because he was not given control of the mv from the driver who fled.

Defence s79(6)
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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

Need to show Not occupying drivers compartment Not in the mv Sober enough to form the intention to drive Mv safely parked and not in dangerous position (eg. side of the road) No previous convictions for DD in previous 12 months Defence used in Newburn v McCann Asleep in drivers seat & bucket seat forced into reclining position Keys taken by another person Appeal against conviction successful & held that occupation has to be such as to manifest an intention not to drive outward and visible sign

2)
TORUM

Motor Vehicle see discussion on previous pages re definitions under QCC & On Roads
Definition from Schedule 4 of TORUM
(a) (b) includes a busway includes an area that is (i) open to or used by the public and is developed for, or has as 1 of its uses, the driving or riding of motor vehicles, whether on payment of a fee or otherwise; or (ii) dedicated to public use as a road; but does not include an area declared under a regulation not to be a road.

3)

(c)

Example of an area that is a road A bridge, cattle grid, culvert, ferry, ford, railway crossing, shopping centre car park, tunnel or viaduct.

Or Elsewhere? From s79(11)


In Fleming v Skerke (which was applied in Hodgson v Turner) Campbell J held: Elsewhere is a comprehensive word; whatever limitation be put upon it, it covers a situation where a vehicle is entering private property from a public road Included private property S79(1) Most serious offence: Blood alcohol reading 0.15+ S79(3) deeming provision OR Where indicia of intoxication eg evidence of physical appearance or behaviour slurred speech, bloodshot eyes, breath smelling of alcohol, staggering etc (indicia used where no BAC reading)

Noonan v Elson need to show mental and physical capacity so affected as to be no longer in a normal condition normal judged what is normal for that person
Dooley & Associates (A. OHran & R. Richmond) page 68 of 87

LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

need to have evident mental and physical indicia

OConnor v Shaw Prosecution needs to prove that he was at the relevant time in fact in some observable degree influenced by liquor and incapable of driving S79(2) 0.05 0.149 Need to have certificate for this BAC certificate issued after a breathalyser or blood test required Procedure covered in s80 for breath, breathalyser, blood and urine testing and the issue of certificates o request for breath test (i.e. blowing into white tube on the side of the road) o requisition for breathalyser test (breath analysis done after breath test tested positive)

PROCEDURE under s80 of TORUM:


1) Preliminary Breath Test: At roadside auth under s80(2) and s97(1A) At roadside police station or other place s80(3) Following accident s80(2A) As soon as practicable and w/in 2hrs s80(4) Breath tests can be administered on private property Fleming v Skerke / s99 If breath test indicates alcohol (it is positive), then 2) Breath analysis test: Breathalyser analysis test under s80(6) and 80(8)** 3) Blood test may be required 4) Certificate is issued

OR

**Note breath analysis test s80(8) where arrest for s79 or s83 OR IO arising out of use of mv

Failure to Provide
S80(5A) Failure to provide breath test (carries greater penalty) UNLESS S80(5B) medical certificate, request not lawfully made, by reason of events that occurred person incapable of providing, reason of substantial character S80(11) failure to provide for breath analysis deemed an offence against s79(1) [Note s80(11A)] Must be given appropriate directions Hammond v Lavender (e.g. place mouth on the tube and blow etc) o Where no direction given but the test done and supplied by the person, it is still lawful in the evidence No certificate of failure to supply but witness could still testify Churchill v Harmon
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Reason of substantial character


Where person claiming to be a passenger Murphy v Porter must be more than a reasonable excuse Refusal on basis that waiting for solicitor not sufficient did not amount to a reason of substantial character

Physical defect Sufficient to provide reason of substantial character Willcox v Doolan defective pallet & thus speech defect unable to provide continuos flow of air through the apparatus Under 80(15)(g) certificates are conclusive of BAC at the time of the offence or within 2 hrs of the occurrence of the event need to be taken ASAP or within 2 hours of the occurrence of event (applies to breath test as well) Time Limitations s80(4) a requisition for a breath test (cf breathalyser tests) shall not be made under ss 80 (2) and (2A) unless it is made as soon as practicable and within 2 hours of the occurrence of the event which constitutes an offence in s 79. S80(15)(g) conclusive evidence of BAC at the time it was taken and for the prodeeding 2 hours (unless 80(15)(h) applies equipment not working properly) S80(8D) hospital requisitions and see R v Clauss o Similar 2 hours limitation placed on hospital requisition and if taken outside 2 hours then @ judges discretion to exclude from evidence o Limitations not to apply to the other requisitions S80(15G) certificate and where outside 2 hours Bensley v Roche o Not conclusive but can use expert evidence and work back

Drinking after the alleged event Davies v Dorfler a glass of wine to steady the nerves after the accident Treloar v McDonald where drinking before and after accident

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LWB238 Introduction to Criminal Law

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The Drugs Misuse Act and the Regulations


Part 1 include important definitions in conjunction with the Schedules of the Drugs Misuse Regulations drugs appearing in specific schedules and as specified in quantities in Schedule 3 and 4 o Schedule 1 - cocaine, heroin, lyserside and phencyclidine o Schedule 2 - cannabis (marijuana), morphine, opium, amphetamines o Schedule 2A inserted in 2000; synthetic drugs / PIEDs Part 2 contains main offences and note s13 listing offences which can be dealt with summarily (indictable offences; penalties are limited to 2 years) Part 3 powers of search and investigation were mainly removed to Police, Powers & Responsibility Act 2000 Part 5 covers forfeiture and restraining of drugs and related property Part 6 includes miscellaneous provisions and note s44 DMA, s57(c) evidentiary presumption and s57(d) mistake of fact Crimes dealt with on indictment Offences dealt with summarily e.g. ss6, 8, 9, 10(1), 11 DMA is to be read in conjunction with Q.C. Code S56 analysts certificate is conclusive evidence Most serious is trafficking and also manufacturing

DRUGS MATRIX
Check the Schedules: 1 (p1302) - cocaine, heroin, lyserside, phencyclidine 2 (pp1303) cannabis (marijuana), morphine, opium, amphetamines 2A (pp1307 - 1308synthetic drugs / PIEDs 3 (pp1309 - 1310) 4 (p1311) for quantity of drug

type of drug

Decide which offence: Possession s9 Permitting use of place s11 Trafficking s5 Producing s8 Receiving or possessing property obtained from trafficking/supplying s7 f. Possessing things for use or use in connection with s10 g. Possessing suspected property s10A h. Importing into Australia - Customs Act s233B a. b. c. d. e.

Go through elements of each relevant section


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Apply facts Rebuttable presumption of possession - s57 Evidentiary provisions In respect of a charge against a person of having committed an offence defined in part 2 (c) proof that a dangerous drug was at the material time in or on a place of which that person was the occupier or concerned in the management or control of is conclusive evidence that the drug was then in the persons possession unless the person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place

Possession
s9 Possessing dangerous drugs
A person who unlawfully has possession of a dangerous drug is guilty of a crime. Maximum penalty (a) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 and the quantity of the thing is of or exceeds the quantity specified in the Drugs Misuse Regulation 1987, schedule 4 in respect of that thing25 years imprisonment; (b) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 and the quantity of the thing is of or exceeds the quantity specified in the Drugs Misuse Regulation 1987, schedule 3 but is less than the quantity specified in the Drugs Misuse Regulation 1987, schedule 4 in respect of that thing and the person convicted (i) satisfies the judge constituting the court before which the person is convicted that when the person committed the offence the person was a drug dependant person20 years imprisonment; (ii) does not so satisfy the judge constituting the court before which the person is convicted25 years imprisonment; (c) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 2 and the quantity of the thing is of or exceeds the quantity specified in the Drugs Misuse Regulation 1987, schedule 3 in respect of that thing20 years imprisonment; (d) in any other case where the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 or 215 years imprisonment; (e) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 2A2 years imprisonment.

Control
Is it under accuseds control? Possession based on the notion of actual or potential control; no need to establish ownership as such Possession: s1 Definition in QCC: possession includes having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question. o Actual possession where there is handling or custody (physical ctrl) o Constructive possession where there is an intention to control or a claim of right (no matter in whose ctrl it is) o Joint possession where more than one person is capable of having possession (need to know of other persons activity)
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o In addition, s57(c) DMA includes presumption of possession

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APPLY THE FACTS Is there actual possession? (handling or custody) Is there constructive possession? (intention to control or claim of right) Is there joint possession? (more than one person capable of possession) Where is the place where drugs are found? (on person, house car?) S57(c) DMA: proof that a dangerous drug was at the material time in or on a place of which that person was the 1) occupier or 2) concerned in the management or control of is conclusive evidence that the drug was then in the persons possession UNLESS the person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place o this subsection creates the presumption where person manages place and has control, there is possession o another way of proving possession o onus is on Crown BRD o once proved, onus shifts to defendant to prove they didnt know on BOP occupier - person who is able to exclude strangers from their premises is an occupier (R v Fox) o Occupier does not need to be present when drugs found o Does not need to be paying the rent
The facilitation of proof provision in s. 130 J(2)(b) creates a presumption of exercise of control and knowledge in the existence of such a drug upon a person who is an "occupier" of those premises. Such a person is one who is able to exclude strangers from those premises. See Newcastle City Council v. Royal Newcastle Hospital [1959] A.C. 248, 255; [1959] 1 All E.R. 734, 736. A man who has lived in rented premises for fifteen months with his wife and children is clearly a person who comes within that category. In that sense he has "control of the premises" and is therefore an "occupier" within the meaning of that term as contained in the Health Act.

o R v Fox Fox was absent when police found drugs (5.25g Cannabis) Case suggests that s57 (c) would apply to all occupiers Could have joint occupiers found responsible
o Read in this manner, the section would apply to all persons who, on the evidence, were proved to have been "occupiers" at the relevant time and makes them jointly and severally criminally responsible for the possession of any dangerous drugs found upon the premises unless anyone shows that he or she neither knew nor had reason to suspect that the drug was upon the premises. The criminal responsibility will attach then only to that person or to those persons who have not discharged the reversed onus of proof which is, of course, on the balance of probabilities.

o Thow v Campbell house was rented by his girlfriend; they had fight and he retrieved most of his belongings Ambrose J intention was relevant when determining occupancy Pincus & Davies JJ held no right of control by Thow; drew distinction between a right of control and merely residing at place with permission of true occupant Only connection the few items of clothing left when he ceased to reside there place can be divided to work out who is in occupation; who has management and control of particular parts of property
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LWB238 Introduction to Criminal Law

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o Symes v Lawler appellant was occupier; as police entered another person who had dangerous drugs; he threw it out of window but appellant didnt occupy that part of the house Applied in Smythe (absentee landlady); Thomas J: It seems to me that the reasoning in that case recognises that within the one property there may be a place that is occupied, managed and controlled by an accused and another part that is not occupied, managed or controlled by that accused. o For the purposes of the section within one property there might be a place that was occupied, managed or controlled by an accused and another that was not o Need actual occupation or actual concern in the management or control of the place the drugs were found (R v Smythe) o Mere ownership doesnt make an occupier o Must prove interest in control If drugs are found on person, place of house is irrelevant as drugs are on the person (presumption doesnt apply) o the intended operation of s57(c) of the Drugs Misuse Act is confined to cases where there is no immediate relationship of physical possession demonstrated by a person in proximity to the item, that is where there is no immediately obvious possessor, and the legislature has thought it necessary or desirable to attribute possession to someone. Macrossan CJ (Lawler v Prideaux) place - Meaning varies with the circumstances eg scrub at the rear of the house Person may occupy own room but share common areas o Position of the person whose name is on the lease: R v Diefenbach group rented the flat and car the person whose name was on lease was convicted person who rented car was charged Therefore, it is a rebuttable presumption o Onus on Crown to prove Occupier or Management or Control o Then onus shifts to accused to show that they neither knew or had reason to suspect that the drugs were there on a balance of probabilities

Cases on point R v Solway plastic package in a bathroom cupboard of Solways house; found cannabis in cupboard after party; Defendants evidence that he intended to disposed of it; although the defendant said he knew of the cannabis, no evidence adduced that he laid claim of it or attempted to conceal it; no evidence of possession; the bathroom was a common area in the shared house; appeal was allowed R v Warneminde where a parcel containing cannabis consigned to him under the name of Wills sufficient evidence for constructive possession; exclusive claim of right as defendant signed the delivery form Williams v Queen - Possession must be present as opposed to past o Quantity of drug was minute; not measured o Insufficient to prove possession o Applied Donnelly v Rose: Where insufficient sample of mixture to determine quantity of pure heroin; relevant test to be applied; whether test of visibility with the naked eye intended to be sufficient for
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prosecution; whether a common sense and reality test is to be applied; Held: If amount of heroin not visible to eye then no offence committed; however proof of a minute speck not necessarily result in conviction. o This case, 0.026g of heroine was insufficient sample o Apply common sense and reality test (R v Williams) o Quantity of the drug found must be of sufficient quantity so as to be capable of analysis APPLY THE FACTS Where are the drugs? Is the person an occupier? Is the area shared? Can the presumption be rebutted?

Knowledge
Is there knowledge of the existence of the substance? under Customs Act (Cth), must have knowledge that substance was prohibited (He Kaw Teh v Queen); where accused has honest mistake about nature of substance, Crown may be unable to establish mens rea for offence and accused will escape criminal responsibility under Drugs Misuse Act, accused will not be criminally responsible without knowledge of nature of substance; where accused denies such knowledge, it is not necessary for Crown to prove that accused knew nature of substance KNOWLEDGE IS A REQUIREMENT OF POSSESSION o Knowledge of the existence of the thing possessed must be proved BRD o Knowledge of the nature of the thing possessed (i.e. that it is in fact a drug) does not need to be proved o Sometimes this can give rise to innocent possession on the basis of the excuses and defences in the Code. Includes a physical element and proof of control over the thing will be sufficient to meet possession requirement e.g. where accused has placed thing somewhere for safe-keeping; exercising actual control because thing is on person or in clothing s/he is wearing or even in a body cavity; thing is in item that s/he is carrying, for instance a bag Does person have full control over the drug or is the area a shared or public area? (R v Solway; R v Lai shared areas; R v Buck in another persons body cavity) all three convictions were quashed R v Clare: Fitzgerald P referred to Dawson J in He Kaw Teh who held there that the only knowledge required was of the existence of the thing or substance physically "possessed" and that knowledge of its nature or quality was not required; therefore appeal must fail

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Mistake of Fact might be raised for a defence

s24 Mistake of Fact


(1) A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist. (2) The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.

o Must be an honest and reasonable but mistaken belief o But s57 (d) DMA excludes s24 QCC unless the person shows an honest and reasonable belief in the existence of any state of things material to the charge o Onus of proof turns to the defendant on BOP (R v Keskic; R v Clare) o Therefore Crown needs to prove knowledge of existence of the thing possessed o Accused needs to provide evidence of mistake of fact i.e. 1) Honest (subjective) and 2) Reasonable (objective) Cases on Point R v Clare - Clare failed to discharge onus under s24 Schagen v Draper - where attempt to dispose of thing possessed and silence; attempt to dispose of material and defendants silence supported inference of knowledge; appeal was dismissed R v Gilles - where sufficient knowledge of, or a familiarity with, a drug to be able to identify it R v Myles - implausibility of accuseds belief; appellant convicted of possession; story of just having meat in their truck, when in fact you could smell cannabis, was implausible and gave an inference of knowledge; appeal dismissed Grant v Breinl - Failure to form and state a belief and appearance of the accused and prior convictions may provide cogency of proof R v Bridges - where a foil containing cannabis found in a purse in her jacket being worn by her boyfriend; unaware of cannabis appeal allowed as insufficient evidence BRD APPLY THE FACTS Did the accused know about the drugs? Was there knowledge of the existence of the thing? BRD? Was there knowledge of the nature of the thing? If so, then guilty! Can Mistake of Fact be argued? Was there an honest and reasonable but mistaken belief about the drugs?

Time
What is the time of possession? Period of time need only be brief can be fleeting (R v Thomas) R v Thomas where budda sticks were thrown over verandah had asserted a right of control over the drugs
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R v Todd picked up a plastic package containing cannabis from a table and placed it under a newspaper on a stool at the other end of the table. asserted a right of control amounting to possession under s9

APPLY THE FACTS How long were the drugs in the accuseds possession?

Quantity?
What is the quantity of the substance? Check the Schedules relevant to the penalty for the offence must be sufficient enough for naked eye to see apply common sense and reality test R v Williams APPLY THE FACTS What is the quantity of the drugs? Is the common sense and reality test necessary? CONCLUSION Was an illegal amount of drugs in the accuseds possession for a reasonable amount of time in a place where the defendant had control?

Permitting Use of Place


9 Mode of execution immaterial (1) When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled, or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel. (2) In either case the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by the other person. Is the accused an occupier? o Person who can exclude strangers from their premises (R v Fox) Is the accused in control of the premises? (distinction between right of control and merely residing in premises (Thow v Campbell) Is the accused in management of the premises? (may manage different parts of the premises (Symes v Lawlor) Did the accused have reason to suspect that the drug was on or on the premises? o Presumption where person managing place and has control, there is possession; alleviates need for prosecution to prove knowledge on behalf of defendant (s57 (c))
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o Where provision applies, accused is deemed to have possession, whether or not there was knowledge (Symes v Lawlor) o Onus is reversed and accused must establish BOP that did not know or have reason to suspect drugs were on premises (R v Smythe)

Trafficking
5 Trafficking A person who carries on the business of unlawfully trafficking in a dangerous drug is guilty of a crime. Maximum penalty (a) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 125 years imprisonment; (b) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 220 years imprisonment; (c) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 2A5 years imprisonment. Has there been unlawful trafficking? (no excuse or justification by law) Is there evidence of a business? (commercial profit, sustained income over a period of time, kept instruments/equipment for drugs, but still can be large amount of drugs on one occasion) (R v Quaile) => look to the purpose of the person selling the drugs; evidence to look for: a) Advertising or promoting, b) communication with prospective purchasers, c) negotiating prices, d) arranging terms for sale, e) setting up lines of supply, f) arranging delivery Is the person the main offender or a participant? (can also be a participant Holeman)

Producing
S8 - Producing A person who unlawfully produces a dangerous drug is guilty of a crime. Maximum penalty (a) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 and the quantity of the thing is of or exceeds the quantity specified in the Drugs Misuse Regulation 1987, schedule 4 in respect of that thing25 years imprisonment; (b) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 and the quantity of the thing is of or exceeds the quantity specified in the Drugs Misuse Regulation 1987, schedule 3 but less than the quantity specified in the Drugs Misuse Regulation 1987, schedule 4 in respect of that thing and the person convicted
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(i) satisfies the judge constituting the court before which the person is convicted that when the person committed the offence the person was a drug dependant person20 years imprisonment; (ii) does not so satisfy the judge constituting the court before which the person is convicted25 years imprisonment;

(c) in any other case where the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 120 years imprisonment; (d) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 2 and the quantity of the thing is of or exceeds the quantity specified in the Drugs Misuse Regulation 1987, schedule 3 in respect of that thing20 years imprisonment; (e) in any other case where the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 215 years imprisonment; (f) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 2A5 years imprisonment. Produce means (s4 Definitions) o prepare, manufacture, cultivate, package or produce; o offering to do any act specified in paragraph (a); o doing or offering to do any act preparatory to, in furtherance of, or for the purpose of, any act specified in paragraph (a). Is there any evidence of producing? o Cultivation (R v Dempsey) watering plants Dempsey found watering plants which were cannabis Only evidence police adduced was watering Also admission he had planted and fertilised plants but this did not occur on dates in the indictment So, in this case, watering was enough for cultivation o Preparation (Calabria v Queen) equipment on hemp farm Calabria has shed on farm with 1000 hemp plants, heaters, scales Quantity of leaves => led to commercial operation Drying of the leaves to sell constituted preparing the drug o Harvesting (Stratford v McDonald) physical activity with intention of cultivating Stratford charged with producing; possession of crop for sale remained vested in other person Physical activity and intention in activity harvesting Cultivation is continuing act Individual acts pertaining to the whole process Watering crops can be enough Also, dont have to be owner to be cultivating Are there any circumstances of aggravation? (R v Boyd) Defendant charged with manufacture of drugs Indictment alleged drugs exceeded quantity in Schedule 3 Evidence did not establish that amount of drugs; only found the equipment for making the larger quantity Actual quantity had to be present (as per Schedule); not just the production potential
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Supplying
s6 - Supplying (1) A person who unlawfully supplies a dangerous drug to another, whether or not such other person is in Queensland, is guilty of a crime. Maximum penalty (a) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 and the offence is one of aggravated supply25 years imprisonment; (b) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 and paragraph (a) does not apply20 years imprisonment; (c) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 2 and the offence is one of aggravated supply20 years imprisonment; (d) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 2 and paragraph (c) does not apply15 years imprisonment; (e) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 2A5 years imprisonment. (2) For the purposes of this section, an offence is one of aggravated supply if the offender is an adult and (a) the person to whom the thing is supplied is a minor; or (b) the person to whom the thing is supplied is an intellectually handicapped citizen; or (c) the person to whom the thing is supplied is within an educational institution; or (d) the person to whom the thing is supplied is within a correctional institution; or (e) the person to whom the thing is supplied does not know he or she is being supplied with the thing. Is there any evidence of supply means (s4 Definitions) a. give, distribute, sell, administer, transport or supply; b. offering to do any act specified in paragraph (a); c. doing or offering to do any act preparatory to, in furtherance of or the for the purpose of any act specified in (a) But cant supply to oneself (R v Maroney) Are there any circumstances of aggravation? (supplying minors or disabled, at school or prison, to person who doesnt know what is being supplied) Offence is complete once offer is made, notwithstanding accused may be mistaken in belief about nature of substance (Gauci v Driscoll)

Receiving or possessing property obtained from trafficking/supplying


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s7 - Receiving or possessing property obtained from trafficking or supplying (1) A person who receives or possesses property, other than a dangerous drug, (offence property) obtained, directly or indirectly, from the commission of (a) an offence defined in section 5 (trafficking) or 6 (supplying); or (b) an act done at a place not in Queensland which if it had been done in Queensland would have constituted an offence defined in section 5 or, as the case may be, 6, and which is an offence under the laws in force in the place where it was done; knowing or believing the property to have been so obtained, is guilty of a crime. Maximum penalty (a) if the offence or act, from the commission of which the offence property was obtained, related to a dangerous drug that is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 or 220 years imprisonment; or (b) if the offence or act, from the commission of which the offence property was obtained, related to a dangerous drug that is a thing specified in the Drugs Misuse Regulation 1987, schedule 2A5 years imprisonment. (2) Where the offence property has been (a) mortgaged, pledged or exchanged for other property; or (b) converted into other property in any manner whatever; any person who knowing or believing (c) that the other property is wholly or in part the property for which the offence property has been mortgaged, pledged or exchanged or into which the same has been converted; and (d) that the offence property was obtained under such circumstances as to constitute a crime under subsection (1); receives or possesses the whole or any part of the other property for which the offence property has been mortgaged, pledged or exchanged or into which the offence property has been converted, is guilty of a crime. Maximum penalty (a) if the offence or act, from the commission of which the offence property was obtained, related to a dangerous drug that is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 or 220 years imprisonment; or (b) if the offence or act, from the commission of which the offence property was obtained, related to a dangerous drug that is a thing specified in the Drugs Misuse Regulation 1987, schedule 2A5 years imprisonment. (3) For the purpose of proving the receiving of property it is sufficient to show that the accused person has, either alone or jointly with some other person, aided in concealing the property or disposing of it. Is there evidence of property being obtained from trafficking or supplying?
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Is there evidence of knowing or believing - requires actual awareness or reasonable suspicion is sufficient (Atwell v Massey) Has the property been disposed of or concealed by either accused or with another person?

Possessing things for use or use in connection with


s10 Possessing things for use or used in connection with (1) A person who has in his or her possession anything (a) for use in connection with the commission of a crime defined in this part; or (b) that the person has used in connection with such a purpose; is guilty of a crime. Maximum penalty (a) if possession of the thing is for use, or has been used, in connection with the commission of a crime relating to a dangerous drug that is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 or 215 years imprisonment; or (b) if possession of the thing is for use, or has been used, in connection with the commission of a crime relating to a dangerous drug that is a thing specified in the Drugs Misuse Regulation 1987, schedule 2A2 years imprisonment. (2) A person who unlawfully has in his or her possession anything (not being a hypodermic syringe or needle) (a) for use in connection with the administration, consumption or smoking of a dangerous drug; or (b) that the person has used in connection with such a purpose; commits an offence against this Act. Maximum penalty2 years imprisonment. (3) A person (other than a medical practitioner, pharmacist or person or member of a class of persons authorised so to do by the Minister administering the Health Act 1937) who supplies a hypodermic syringe or needle to another, whether or not such other person is in Queensland, for use in connection with the administration of a dangerous drug commits an offence against this Act. Maximum penalty2 years imprisonment. (4) A person who has in his or her possession a thing being a hypodermic syringe or needle who fails to use all reasonable care and take all reasonable precautions in respect of such thing so as to avoid danger to the life, safety or health of another commits an offence against this Act. Maximum penalty2 years imprisonment. (4A) A person who has in his or her possession a hypodermic syringe or needle that has been used in connection with the administration of a dangerous drug who fails to dispose of such
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hypodermic syringe or needle in accordance with the procedures prescribed by regulation commits an offence against this Act.4 Maximum penalty2 years imprisonment. (6) For subsection (1), the dangerous drug to which the commission of a crime relates is the dangerous drug directly or indirectly involved and in relation to which proof is required to establish the commission of the crime.

Example Suppose a person is guilty of a crime against this section because he or she has in his or her possession equipment for use in connection with the commission of a crime defined in section 8 of unlawfully producing a dangerous drug. That dangerous drug is the dangerous drug referred to in the penalty for subsection (1).

Is there evidence of equipment or weapon for use in a crime? e.g. bongs or guns to protect the drug crops Look to the intent of possessor => is there intention to commit the crime? (R v Miller Miller charged with possession of guns in connection with production of dangerous drugs) o Thomas J (575): The gravamen of the offence lies in possession with a willingness of an accused person to facilitate or be a link in the commission of what he believes will be a crime. Possession of an item for sale with the intention that it be used in the production of a dangerous drug, or, a fortiori, the sale by the accused of such an item to a person whom he believed would use it for that purpose, would be capable of establishing the offence

Possessing Suspected Property


s10A - Possessing suspected property (1) A person who has in his or her possession any property (other than a dangerous drug, hypodermic syringe or needle) reasonably suspected of (a) having been acquired for the purpose of committing an offence defined in this part; or (b) having been used in connection with the commission of such an offence; or (c) having been furnished or intended to be furnished for the purpose of committing such an offence; or (d) being the proceeds of such an offence; or (e) having been acquired with the proceeds of such an offence; or (f) being property into which the proceeds of such an offence have, in some other manner, been converted; who does not give an account satisfactory to the court of how the person lawfully came by or had such property in the persons possession commits an offence against this Act. Maximum penalty2 years imprisonment.

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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

(2) Where the person declares that he or she received the property from some other person or that he or she was employed as a carrier, agent or servant to convey the property to some other person, the court may cause every such person and also, if necessary, every other person through whose possession the property has passed to be brought to the same or another court and examined concerning the property. (3) A person brought to the court pursuant to subsection (2) who appears to the court to have had possession of the property and to have had reasonable cause to believe the same (a) to have been acquired for the purpose of committing an offence defined in this part; or (b) to have been used in connection with the commission of such an offence; or (c) to have been furnished or intended to be furnished for the purpose of committing such an offence; or (d) to be the proceeds of such an offence; or (e) to have been acquired with the proceeds of such an offence; or (f) to be property into which the proceeds of such an offence have, in some other manner, been converted; commits an offence against this Act. Maximum penalty2 years imprisonment. (4) For the purpose of proving the possession of any property it is sufficient to show that the defendant has, either alone or jointly with some other person, aided in concealing the property or disposing of it. Is there evidence of any property in the accused possession that could be or was used to commit a crime (e.g. baggies, money proceeds of drug sale) Reasonable suspicion must be something more than imagination or conjecture; reasonable suspicion from which inferences drawn, but which falls short of proof (Gough v Braden) o In Gough v Braden police searched between mattress and found bag with money in a baggie; police said suspected money was proceeds of drug deal o Court held that Reasonable suspicion means that there must be something more than imagination or conjecture. It must be the suspicion of a reasonable man, warranted by facts from which inferences can be drawn, but is something which falls short of proof. (MacKenzie J) o In this case, was properly capable of generating a reasonable suspicion that the money was the proceeds of an offence

Importing into Australia


Customs Act 1901 (Cth) 233B Special provisions with respect to narcotic goods (1) Any person who:
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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

(a)

without any reasonable excuse (proof whereof shall lie upon him) has in his possession, on board any ship or aircraft, any prohibited imports to which this section applies; or without reasonable excuse (proof whereof shall lie upon the person) brings, attempts to bring, or causes to be brought, into Australia any prohibited imports to which this section applies; imports, or attempts to import, into Australia any prohibited imports to which this section applies or exports, or attempts to export, from Australia any prohibited exports to which this section applies; or without reasonable excuse (proof whereof shall lie upon him) has in his possession, or attempts to obtain possession of, any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act; or without reasonable excuse (proof whereof shall lie upon him) conveys, or attempts to convey, any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act; or without reasonable excuse (proof whereof shall lie upon him) has in his possession, or attempts to obtain possession of, any prohibited imports to which this section applies which are reasonably suspected of having been imported into Australia in contravention of this Act; or conspires with another person or other persons to import, bring, or cause to be brought, into Australia any prohibited imports to which this section applies or to export from Australia any prohibited exports to which this section applies; or aids, abets, counsels, or procures, or is in any way knowingly concerned in, the importation, or bringing, into Australia of any prohibited imports to which this section applies, or the exportation from Australia of any prohibited exports to which this section applies; or fails to disclose to an officer on demand any knowledge in his possession or power concerning the importation or intended importation, or bringing or intended bringing, into Australia of any prohibited imports to which this section applies or the exportation or intended exportation from Australia of any prohibited exports to which this section applies; shall be guilty of an offence.

(aa)

(b)

(c)

(caa)

(ca)

(cb)

(d)

(e)

(1A)

On the prosecution of a person for an offence against the last preceding subsection, being an offence to which paragraph (c) of that subsection applies, it is not necessary for the prosecution to prove that the person knew that the goods in his possession or of which he attempted to obtain possession had been imported into Australia in contravention of this Act, but it is a defence if the person proves that he did not know that the goods in his possession or of which he attempted to obtain possession had been imported into Australia in contravention of this Act. On the prosecution of a person for an offence against subsection (1), being an offence to which paragraph (ca) of that subsection applies, it is a defence if the
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(1B)

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LWB238 Introduction to Criminal Law

Exam Preparation Notes Sem 1, 2002

person proves that the goods were not imported into Australia or were not imported into Australia in contravention of this Act.
(1C)

Any defence for which provision is made under either of the last 2 preceding subsections in relation to an offence does not limit any defence otherwise available to the person charged. The prohibited imports to which this section applies are prohibited imports that are narcotic goods and the prohibited exports to which this section applies are prohibited exports that are narcotic goods. A person who is guilty of an offence against subsection (1) of this section is punishable upon conviction as provided by section 235. This section shall not prevent any person from being proceeded against for an offence against any other section of this Act, but he shall not be liable to be punished twice in respect of any one offence.

(2)

(3) (4)

Check Schedule 6 for narcotic goods includes cocaine, heroine, cannabis Did the accused know the goods were on the contravened list (Schedule 6)? There is a defence available if accused did not know goods were on contravened list If defendant thinks s/he has a good excuse then the onus is on him/her to prove it without reasonable excuse puts onus back on defendant to prove he was not in possession of goods => did he know; is there good excuse? - S233B (1C) without reasonable excuse.puts onus back onto accused person to prove not in possession of prohibited imports Crown must be able to prove knowledge of the substance but not necessary to prove knowledge of nature of the thing (He Kaw Teh v Queen) Wilful blindness may be equivalent to knowledge N.B. Usually dealt with on indictment but can be dealt with summarily with permission of defence and prosecution

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