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Assault Summary
Assault/Batterys 23 Summary Offences Act - Common Assault
s 16 Crimes Act – Causing serious injury intentionally
s 17 – Causing serious injury recklessly
s 18 – Causing injury intentionally or recklessly
s 24 – Negligently causing serious injury
Force OR Apprehension of violence?
o Force: Fagan v Metropolitan Police Commissioner; R v Salisbury
o Fear: Pemble v R; Ryan v Kuhl – V doesn’t fear, no assault.
Level of injury?
o If minor, Common Assault.
o CA s 15 ‘injury’ – unconsciousness, psychiatric injury, pain, etc.
o CA s 15 ‘serious injury’ – Combo of injuries, GBH (R v Spartels)
o If injury, see s 18; serious injury, ss 16, 17, 24.
Intention to cause harm?
o Intended ss 16, 18, s 23: R v Westaway
o Recklessness ss 17, 18: R v Campbell (R v Coleman if common assault)
o Negligence – Nydam v R
1. Fell short of std of care reasonable person would exercise;
2. Involved such high risk that SI would follow; and
3. Deserves criminal punishment as a result.
Defence?
o Lawful excuse
o Not usually consent (R v Brown), but some exceptions.
o Self-defence (see Homicide)
Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs. Credit: Christopher Angus.
Threats to Kills 20 – Threats to kill
s 21 – Threats to inflict serious injury
Apprehension of violence?
Intention to cause harm?
o Intended: s 20(a), 21(a) – D intends V to fear threat.
o Recklessness: s 20(b), 21(b) – D must foresee V fear threat. R v Coleman.
Defences?
Endangerments 22 – Conduct endangering life, s 23 – Conduct endangering persons
Force?
Conduct endanger life/persons?
o Appreciable risk of death (Mutemeri v Cheeseman)
Reckless act?
o s 22: Nuri – both subjective/objective mental elements.
o Future conduct cannot be used to render something dangerous - R v Abdul
Rasool
Defences?
Infecting serious diseasess 19A – Intentionally causing a very serious disease
Serious disease?
o Must be HIV - Health Act 1958 (Vic) s 19(A2).
Intentional? R v Westaway(?)
Defences?
Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs. Credit: Christopher Angus.
Stalkings 21A – Stalking
Act count as stalking?
o s 21A(2)(a) Following V, (b) post/phone/fax/email/text message, (ba)
publishing things on internet that are V’s or are alleged to come from V,
(bb) unauthorised computer function of V’s, (bc) tracing V’s online
presence, (c) entering/loitering, (d) interfering with V’s property, (e)
giving/leaving offensive material for V, (f) surveillance or V or any other
person.
o (g) basically anything that makes V fear for safety.
Intention to cause harm?
o s 21A(2): D intended causing V mental/physical harm, or arousing fear.
o s 21A(3): D knew conduct likely to cause harm, or ought to have
understood and harm was caused. R v Campbell probability test.
Victim feared defendant?
o s 21(A)(2) – reasonably expect to arouse fear for safety.
o R v Ireland – Silent phone calls (cf Knight – too far away to fear violence)
Defences?
o s 21A(4): Enforcement of law/Act/warrant/etc.
o (4A): (a) normal course of lawful business, (b) purpose of industrial
dispute, (c) engaging in political activities/discussing or communicating
public affairs.
Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs. Credit: Christopher Angus.
Homicide Summary
Homicide (AR for all crimes)
Person dead? s 41 Human Tissues Act
Not a foetus? Attorney-General’s Reference (No. 3 of 1994)
Occur in jurisdiction? Ward v R
Voluntary act, willed by D? Ugle v The Queen [2002]
Substantial and operating cause of death? R v Hallett
Any novus actus interveniens?
o Royall v R covers most different examples.
o For specifics see case list or detailed notes.
Murders 3
Any of the following part of D’s MR? If yes, go to defences.
o Intention to kill
o Intention to cause GBH (‘really serious injury’ – DPP v Smith)
Rhodes – Includes unconsciousness
o Recklessness to causing death/GBH
Could D know/foresee actions cause death? R v Crabbe
Does not need to be hostile act – Boughey v R
Does transferred malice apply? R v Archer and Saunders
Was D’s actions part of an ‘act of violence’? If yes, constructive murder.
o ‘Acts of violence’ include threats to cause fear – R v Butcher
o Crime doesn’t have to be complete when V dies - R v Galas; R v Mikhael
o Escaping from lawful custody will be CM – R v Ryan and Walker
Manslaughters 5
Voluntary/involuntary MS?
o If voluntary, go to defences. If not, continue.
Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs. Credit: Christopher Angus.
UDA MS?
Unlawful act? R v Lamb; Pemble v R
Dangerous act?
o Would reasonable person in D’s shoes realise he exposed another to
appreciable risk of SI? Wilson v R
Was there intention to commit UDA?
o If yes, see defences. If not, continue.
Negligent omission MS?
Does D have legal duty to act?
o V secluded by D? Taktak
o Familial relationship? Do nothing – Russell
o Assuming duty of care – R v Instan; R v Stone & Dobinson
Nydam v R test
o Gross negligence falling short of std of care?
o Such high risk of death/GBH that punishment warranted?
Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs. Credit: Christopher Angus.
Homicide Defencess 9AC, 9AD, 9AE.
Self-defence?
o s 9AC (Murder)
Applies if D believed conduct necessary to defend from
death/GBH, and reasonable grounds to do so.
o s 9AD (Defensive Homicide)
Applies if D believed conduct necessary to defend from
death/GBH, but no reasonable grounds.
o s 9AE (Manslaughter)
As per murder, but also if conduct to stop unlawful deprivation of
liberty.
o Basically: If reasonable, acquittal. If not reasonable but honest belief,
DH/MS (depending on MR test earlier), if neither, murder.
Reasonable grounds test.
o Acted genuinely in SD? Subjective.
o D believed he didn’t use excessive force. Subjective.
o Force excessive in others’ opinions? Objective
Zecevic v DPP – Possible to retreat, necessary to kill, relative
size/strength, all other relevant circumstances.
Family Violence Defences 9AH
Who can claim?
o 9AH(4) – family member.
Did D have belief/reasonable grounds for conduct? s 9AH(1)
o (a) Defend, (b) prevent unlawful deprivation, (c) doesn’t have to be
immediate harm, (d) force used can be excessive.
Proof required of violence?
o 9AH(3) – history of relationship, ‘battered wife’ syndrome, effect of V’s
conduct on D, etc.
Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs. Credit: Christopher Angus.
Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs. Credit: Christopher Angus.
Rape Summarys 38(2) Crime Analysis (1 of 3 types of rape)
(2)(a) Intentional SP while (i) aware V not consenting or (ii) not giving thought to V’s consent.
(2)(b) Continuing SP after V’s consent withdrawn/might no longer consent.
(3)(a) D compels V to SP and (b) won’t let stop even if person being SP’d consents.
s 38(2)(a)
AR
SP?
o s 35 – (a) Insertion of penis into v/a/m or (b) object into v/a except for
med/hyg purposes.
Consent (i.e. free agreement – s 36 lists example where no FA).
(a) Force/fear of force
(b) Fear of harm to V/another (e.g. economic harm, but NOT benefit).
(c) V unlawfully detained
(d) V asleep/unconscious/drug affected
(e) V incapable of understanding nature of sexual act
(f) V mistaken about sexual nature/Identity of D
R v Galliene – True mistake means no consent
Papadimitropoulos – If mistake collateral to consent (e.g. D lies about
wealth/marriage) then free agreement stands. Also Linekar covers
prostitutes.
(g) V mistakenly believes SP for med/hyg.
Jury directions re: consent (s 37AAA)
(a) What consent means according to s 36;
(b) 36 examples when V not consenting;
(c) If jury believes BRD that s 36 occurred, V cannot have consented;
(d) Can’t use V not complaining at time to indicate FA;
(e) FA not applicable even if (i) no protest, (ii) no physical injury or (iii) V
previously had sex with D or another person.
Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs. Credit: Christopher Angus.
MR
D intended SP without consent? If yes, guilty.
Was D aware/should be aware no FA?
o 38(2)(i): D aware V not/might not be consenting?
For aware, look for struggle/opposition to SP
For might be, subjective. V might be upset/hesitant/passive.
If yes on this question, guilty.
o (ii): D gave no thought about consent? Drunk? If yes, guilty.
Jury directions re: awareness (s 37AA). If D claims V consented, jury considers
following to determine if D guilty BRD:
(a) Any evidence to prove D’s claim;
(b) Whether belief reasonable regarding (i) If D realised s 36 was occurring, (ii) If
D took steps to see if V consenting/not, (iii) any other relevant matters.
Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs. Credit: Christopher Angus.
s 38(2)(b)
AR
o SP?s 35 – (a) Insertion of penis into v/a/m or (b) object into v/a except for
med/hyg purposes.
Consent (i.e. free agreement – s 36 lists example where no FA).
(a) Force/fear of force
(b) Fear of harm to V/another (e.g. economic harm, but NOT benefit)
(c) V unlawfully detained
(d) V asleep/unconscious/drug affected
(e) V incapable of understanding nature of sexual act
(f) V mistaken about sexual nature/Identity of D
R v Galliene – True mistake means no consent
Papadimitropoulos – If mistake collateral to consent (e.g. D lies about
wealth/marriage) then free agreement stands. Also Linekar covers
prostitutes.
(g) V mistakenly believes SP for med/hyg.
Did D continue after becoming aware consent taken away? (2)(b)
Jury directions re: consent (s 37AAA)
(a) What consent means according to s 36;
(b) 36 examples when V not consenting;
(c) If jury believes BRD that s 36 occurred, V cannot have consented;
(d) Can’t use V not complaining at time to indicate FA;
(e) FA not applicable even if (i) no protest, (ii) no physical injury or (iii) V
previously had sex with D or another person.
MR
Was D aware/should be aware no FA?
o 38(2)(i): D aware V not/might not be consenting?
For aware, look for struggle/opposition to SP
For might be, subjective. V might be upset/hesitant/passive.
If yes on this question, guilty.
o (ii): D gave no thought about consent? Drunk? If yes, guilty.
Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs. Credit: Christopher Angus.
Jury directions re: awareness (s 37AA). If D claims V consented, jury considers
following to determine if D guilty BRD:
(a) Any evidence to prove D’s claim;
(b) Whether belief reasonable regarding (i) If D realised s 36 was occurring, (ii) If
D took steps to see if V consenting/not, (iii) any other relevant matters.
s 38(3) AR
D compel V to SP another? Physical force, manipulation, etc.
SP?
o s 35 – (a) Insertion of penis into v/a/m or (b) object into v/a except for
med/hyg purposes.
Consent (i.e. free agreement – s 36 lists example where no FA).
(a) Force/fear of force
(b) Fear of harm to V/another (e.g. economic harm, but NOT benefit).
(c) V unlawfully detained
(d) V asleep/unconscious/drug affected
(e) V incapable of understanding nature of sexual act
(f) V mistaken about sexual nature/Identity of D
R v Galliene – True mistake means no consent
Papadimitropoulos – If mistake collateral to consent (e.g. D lies about
wealth/marriage) then free agreement stands. Also Linekar covers not
paying prostitutes.
(g) V mistakenly believes SP for med/hyg.
Jury directions re: consent (s 37AAA)
(a) What consent means according to s 36;
(b) 36 examples when V not consenting;
(c) If jury believes BRD that s 36 occurred, V cannot have consented;
(d) Can’t use V not complaining at time to indicate FA;
(e) FA not applicable even if (i) no protest, (ii) no physical injury or (iii) V
previously had sex with D or another person.
MR 38(4) – D commits rape if compels V to engage in sexual act:
(a): Without V’s consent. See s 35
(b) While (i) Being aware V not/might not be consenting, or (ii): D not giving
thought to whether consent.
Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs. Credit: Christopher Angus.
Jury directions re: awareness (s 37AA). See top of page.
Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs. Credit: Christopher Angus.
Property Offences Summary
Theft s 72-4 CA
AR
1. Appropriates
73(4) – Assumes rights of owner.
73(5) – If part of sale, then later assumptions by D not theft.
R v Roffel – If property given by V to D, no theft (Young CJ). Appropriation
involves adverse interference/usurpation of right of ownership (Crockett J).
Stein v Henshall – Theft if D assume rights for own purposes even if
didn’t initially steal. Also W (a child) v Woodrow
2. Property
71(1) - “money and all other property real or personal including things in action
and other intangible property.”
Excludes land [73(6)] and wild animals [73(7)].
Oxford v Moss – Confidential info not intangible if returned.
3. Belonging to another
71(2) – Belongs to person with control/possession of property, and also
proprietary right or interest in it.
Theft of own property? Yes if V has possession/control at time (R v Turner (No.
2)), unless D has also right to retain property (R v Meredith).
Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs. Credit: Christopher Angus.
MR
4. Intention to permanently deprive
Means the obvious!
Sharp v McCormick – Intention when appropriated important, not later. Also R v
Warner; R v Lloyd.
73(12) – IPD if D borrows property and treats as own regardless of owner’s rights,
though only relevant if borrowed for period equivalent to outright taking.
R v Dardovska – Reckless appropriation, (i) ransom, (ii) change of essential
quality, (iii) pawning, but no consent/certainty of repayment. Not theft if taking
for purposes of police investigation.
5. Dishonestly, 73(2)
(a) D believed legally allowed to take property.
Langham – Only genuine belief necessary, not based on fact.
(b) D believed V could give consent if aware.
(c) D didn’t think V could be located using reasonable steps.
72(3) – Can be DH even if willing to pay for property
R v Salvo; Brow; Bonollo – Anything outside 73(2) counts as dishonest.
Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs. Credit: Christopher Angus.
OPD s 81 CA
AR
1. Using deception
81(4)(a): Deliberate/reckless deception as to fact or law. (b) includes deceiving
computer systems.
Deceptive if can’t pay for something (R v Gilmartin) or if probable chance can’t
pay and D indifferent (R v Smith).
DPP v Ray – Deception by silence (perhaps if implied belief by V that D will
pay).
2. Obtains
(2) Gains ownership/possession/control. (3) says 73(12(13) apply too.
R v Lambie – D must have acted on deception, i.e. causal effect.
R v Perera, R v Kovacs – D only need obtain financial advantage.
3. Property
71(1) - “money and all other property real or personal including things in action
and other intangible property.”
Excludes land [73(6)] and wild animals [73(7)].
Oxford v Moss – Confidential info not intangible if returned.
4. Belonging to another
71(2) – Belongs to person with control/possession of property, and also
proprietary right or interest in it.
Theft of own property? Yes if V has possession/control at time (R v Turner (No.
2)), unless D has also right to retain property (R v Meredith).
MR
5. IPD 81(3) - as per s 73(12)(13).
Sharp v McCormick – Intention when appropriated important, not later. Also R v
Warner; R v Lloyd.
73(12) – IPD if D borrows property and treats as own regardless of owner’s rights,
though only relevant if borrowed for period equivalent to outright taking.
R v Dardovska – Reckless appropriation, (i) ransom, (ii) change of essential
quality, (iii) pawning, but no consent/certainty of repayment. Not theft if taking
for purposes of police investigation.
6. Dishonestly
Absence of legal claim of right (Salvo, Brow and Bonollo)
Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs. Credit: Christopher Angus.
OFAD s 82 CA
AR
1. Using deception s 82(2) – as per s 81(4) and Ray.
81(4)(a): Deliberate/reckless deception as to fact or law, (b) includes deceiving (i)
computer systems and (ii) ATMs.
Deceptive if can’t pay for something (R v Gilmartin) or if probable chance can’t
pay and D indifferent (R v Smith).
DPP v Ray – Deception by silence (perhaps if implied belief by V that D will
pay).
2. Obtains
81(2) Gains ownership/possession/control. (3) says 73(12(13) apply too.
R v Lambie – D must have acted on deception, i.e. causal effect.
R v Perera, R v Kovacs – D only need obtain financial advantage.
3. Financial Advantage
Includes services/credit/avoiding debt/anything not “property”. NOTE: Paper
money counts as property, thus OPD.
R v Vasic – Postponement of debt is FA.
MR
4. Dishonestly
Absence of legal claim of right (Salvo, Brow and Bonollo)
Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs. Credit: Christopher Angus.
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