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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.

http://law.timdavis.com.au/

Threats to Kills 20 – Threats to kill

s 21 – Threats to inflict serious injury

Apprehension of violence?


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?



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.


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.



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.



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?



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.



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.



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.



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.



(b) Fear of harm to V/another (e.g. economic harm, but NOT benefit)







wealth/marriage) then free agreement stands. Also Linekar covers

prostitutes.


Did D continue after becoming aware consent taken away? (2)(b)








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.



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.



(b) Fear of harm to V/another (e.g. economic harm, but NOT benefit).







wealth/marriage) then free agreement stands. Also Linekar covers not

paying prostitutes.









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.



Jury directions re: awareness (s 37AA). See top of page.



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).



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.



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)



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)



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