Nearly all serious offences, whether at
common law or statute, are defined with elements
requiring somespecifiedact
(actus reus) and guilty mind (mens rea) such as
intention, knowledge or recklessness. Though usually not
made express, most also require conscious and deliberate
act (voluntariness), that is not accident, not under
automatism etc. Intent as a required element ordinarily
is of two kinds: general intent is the intent to do the
actus reus; specific intent, on the other hand, relates
to the results caused by the act done. The definition of
a few offences includes breach of some objective
standard, for example that of a reasonable person, as
part of the actus reus. For more precise and accurate
account of these concepts, see Jiminez v R
[1992] HCA 14, (1992) 173 CLR 572; R v Falconer
[1990] HCA 49, (1990) 171 CLR 30; He Kaw Teh v R
[1985] HCA 43, (1985) 157 CLR 523; R v Marijancevic [2009] VSCA 135.
Further, a person who attempts to commit an indictable
offence is guilty of the indictable offence of attempting
to commit that offence. The main Victoria provisions are
Crimes Act s.321M; 321N, s.321O, s.321P. On immediate
and not remote connection: Neal v R
[2011] VSCA 172.
If not expressly so, there is a presumption that a
statutory offence requires mens rea: He Kaw Teh.
With crimes defined to require harm
to a person, the required mental element normally is to
harm anyone: it is immaterial that the actual victim is a
mistaken one (the "doctrine of transferred
malice": R v Pham
[2005] VSCA 57; R v Bacash [1981] VR 923) or
that there is no particular victim in view.
Strict liability and absolute liability offences are
exceptions to need for mens rea: He Kaw Teh v R
[1985] HCA 43, (1985) 157 CLR 523. They are established
by proof of the voluntary performance of the actus reus.
With strict liability offences there remains a defence of
honest and reasonable mistake of fact: CTM v R[2008]
HCA 25, (2008) 82 ALJR 97;Proudman v Dayman[1941] HCA 28, (1941) 67 CLR 536; Kidd
v Reeves [1972] VR 563. (On this defence more
generally, see R v Osip[2000]
VSCA 237, (2000) 2 VR 59.) With absolute liability
offences there does not remain a defence of honest and
reasonable mistake of fact: Allen v United Carpet
Mills Pty Ltd [1989] VR 323 discussed in Wilson v Gahan[1999] VSC 72.
Most offences are defined to include a causation element
which occasionally, where there arguably are multiple
possible causes, calls for special attention. Ordinarily,
significant or substantial cause is sufficient to make
out the element: Royall v R
[1991] HCA 378, (1991) 172 CLR 378; R v Aidid[2010] VSCA 56; R v Withers[2009] VSCA 306; R v Lam[2008]
VSCA 109, (2008) 185 A Crim R 453;R v Franklin
[2001] VSCA 79, (2001) 3 VR 9.
Time and date ordinarily are not elements of an offence: R v RHMcl[1998] VSCA 61, [1999] 1 VR 746; R v Tieman
[1908] VLR 4.
> Proving a crime (1):
evidence, specificity and particularity, burden, standard
version
9 January 2012
Evidence
Attempted proof is by evidence comprised mainly
of witness testimony or exhibits. Evidence is subject to
many rules before it is admissible into a case, also to
judicial discretions. For a case under the state law of
Victoria, some of the law concerning evidence is in Evidence Act and Evidence (Miscellaneous Provisions) Act.
Specificity and particularity
Proof of an alleged crime against an accused
must be proof of one specific instance of it;
occasionally in this context problems of duplicity can
arise: see below this page.
Particulars of a specific crime must be provided by
prosecution: Criminal Procedure Act
s.6(3), 159(3) and Schedule 1 Rules. A defendant is
entitled to be told of the particular act, matter or
thing alleged as the foundation of a charge; the
rationale lies in the necessity of informing the court of
the identity of the offence with which it is required to
deal and in providing the accused with the substance of
the charge which he or she is called upon to meet; the
requirement is that an information must at the least
identify the essential factual ingredients of the
offence: Kirk v IRC
[2010] HCA 1. For trial, at least to considerable extent,
particularisation is by means of a written prosecution
opening which must be provided in advance and the
prosecution if it intends to depart substantially at
trial from a matter set out in a document served and
filed by that party must so inform the court and the
other party in advance of the trial: Criminal Procedure
Act ss.182, 184; R v Irvine
[2009] VSCA 239. For trial or summary hearing a defendant
on request is entitled to whatever further particulars
are reasonably required to make defence: R v ACR Roofing [2004] VSCA 215, (2004) 11 VR 187; R v Australian Char[1995] VICSC 168, [1999] 3 VR 834.
Whether prosecution is confined to further particulars is
matter for judicial discretion: DPP Ref No 1 [1992]
2 VR 405.
Burden of proof
Generally, the burden of proof is on prosecution, there
being a presumption of innocence: Charter of Human Rights and Responsibilities Act
s.25(1); Green v R[1971]
HCA 55, (1971) 126 CLR 28; R v Deathe [1962] VR
650. This is to prove sufficient facts to make out each
of the legal elements of the crime definition. If the
prosecution fails to satisfy the jury (or other tribunal
of fact) of any legal element of an offence, then the
prosecution fails and the result is verdict of not guilty
(if jury) or dismissal.
> Proving a crime (2):
circumstantial and inference, wilful blindness,
presumption of regularity
version
8 January 2012
Circumstantial evidence and
inference
One method of proof is from circumstances. The mental
process from circumstances to conclusion of guilt is
known as inference.
For attempted proof by "links in a chain", each
needs to be proved beyond reasonable doubt; not so for
attempted proof by "strands in a cable":Shepherd v R
[1990] HCA 56, (1990) 170 CLR 573; R v Cavkic (No 2) [2009] VSCA 43; R v Tran
[2007] VSCA 164. Motive ordinarily is of latter kind: R v Kotzmann[1999] VSCA 27, [1999] 2 VR 123.
Whatever the kind of circumstantial proof attempted, it
follows from the need for proof beyond reasonable doubt
that the inference of guilt is only to be drawn if all
reasonable inferences (or "hypotheses")
consistent with innocence are excluded: Peacock v R
[1911] HCA 66, (1911) 113 CLR 619; Knight v R
[1992] HCA 56, (1992) 175 CLR 495. An inference to be
reasonable must rest upon something more than mere
conjecture; it must rest on more than groundless
speculation: Barca v R
[1975] HCA 42; (1975) 133 CLR 82; R v Boyle
[2009] VSCA 289. On directions to jury: R v Rajakaruna (No 2) [2006] VSCA 277, (2006) 15 VR 59.
Possession of information and accoutrements of trade
which might have been used in the alleged offending is
relevant to circumstantial proof: Festa v R[2001]
HCA 72, (2001) 208 CLR 593; Thompson and Wran v R[1968] HCA 21, (1968) 117 CLR 313; R v Dunmall[2008] VSCA 22; R v Edwards (1993) 67 A
Crim R 439; R v Hofer (1991) 55 A Crim R 225.
Financial betterment or enrichment as inculpatory
circumstance: Burns v R
[1975] HCA 21, (1975) 132 CLR 258; R v Rich[2002]
VSCA 17, (2002) 4 VR 155. Expert opinion as to financial
betterment: R v Ferguson
[2009] VSCA 198, (2009) 24 VR 531.
Wilful blindness
Wilful blindness occasionally is a relevant consideration
as means of proving intention or knowledge: He Kaw Teh v R[1985] HCA 43, (1985) 157 CLR 523; R v Crabbe[1985]
HCA 22,(1985) 156 CLR 464. This will be in very
few cases: it must be very clear that it is an
appropriate direction to give a jury in the circumstances
of the trial: R v Garlick (No 2) [2007] VSCA 23, (2007) 15 VR 388.
Presumption of regularity
Impagnatiello v Campbell[2003] VSCA 154. Acting in a public
office is evidence of due appointment to that office, not
only in civil proceedings, but also in a criminal case: Cassell v R
[2000] HCA 8, (2000) 201 CLR 189; Yamasa Seafood v Watkins[2000] VSC 156. It seems the
presumption can fill gaps in proof but not of itself
bestow a power though the "doctrine of the validity
of the acts of de facto public officials" in some
circumstances can do so: United Transport v Evans [1992]
VR 240.
> Duplicity
version
8 January 2012
On a contest, it is the defect of
duplicity for a count to allege more than one occurrence
of an offence. The rule against duplicity rests on
various considerations. Some are to do with the orderly
administration of criminal justice: a court must know
what charge it is entertaining in order to ensure that
evidence is properly admitted, and in order to instruct
the jury properly as to the law to be applied; in the
event of conviction, a court must know the offence for
which the defendant is to be punished; and the record
must show of what offence a person has been acquitted or
convicted in order for that person to avail himself or
herself, if the need should arise, of a plea of autrefois
acquit or autrefois convict. The rule also rests upon a
basic consideration of fairness, namely, that an accused
should know what case he or she has to meet. See S v R [1989]
HCA 26, (1989) 168 CLR 266, especially per Gaudron and
McHugh JJ. Another consideration is avoidance of the risk
that individual jurors identify different occasions as
constituting an offence so that there is no unanimity in
verdict: S v R, per Dawson J.
The duplicity may be overt, that is to
be seen from the words of the count: Walsh v Tattersall [1996] HCA 26, (1996) 188 CLR 77; Rixon v Thompson [2009] VSCA 84, (2009) 22 VR 323; Chugg v
Pacific Dunlop Ltd [1988] VR 411. There is no overt
duplicity where a single offence is defined in the
alternative, for instance the provisions as interpreted
in Hedberg v Woodhall[1913] HCA 2, (1913) 15 CLR 531 and R
v Ginies [1972] VR 394. In determining whether a
statutory provision creates a single offence in the
alternative, or separate offences, it is a guide towards
the latter if separate penalties are provided: R v
His Honour Judge Hassett (1994) 76 A Crim R 1.
The duplicity may be latent, that is,
seen only by reference to the alleged facts; sometimes
the terminology is "concealed" instead of
"latent". It occurs where alleged facts
supporting the count have more than one specific
occurrence of the offence alleged in the count: S v R [1989]
HCA 66, (1989) 168 CLR 266; Johnson v Miller[1937] HCA 77, (1937) 59 CLR 467;R v Rigoli
[2006] VSCA 1; R v Suckling[1998] VSCA 60; R v Trotter (1982) 7 A Crim
R 8. Sometimes it is called the defect of uncertainty.
There is no latent duplicity where a single offence
defined in the alternative is put in the alternative
without being made overtly so, as for instance often with
common law murder and manslaughter: cases cited in R v Walsh[2002] VSCA 98 (though where the proof of an
essential ingredient of the crime charged is put in the
alternative, the jury must be directed of the need for
unanimity on that proof: R v Klamo
[2008] VSCA 75, (2008) 18 VR 644). It is not latent
duplicity to allege as a single offence one activity even
though it may involve more than one act eg the
intentionally cause serious injury alleged to lie in
discrete acts of stabbing in close sequence in R v Heaney
[2009] VSCA 74, (2009) 22 VR 164, the attempted murder
alleged to lie in discrete acts of shooting in close
sequence in R v Goldman[2007] VSCA 25, or the sexual activity inPDI v R[2011]
VSCA 446 and R v Yankovski
[2007] VSCA 259, (2007) 17 VR 315. It is not latent
duplicity to allege a single offence where the offence
definition extends to continuing offending being acts on
separate occasions eg the drug trafficking provisions in R v McCulloch[2009] VSCA 34; R v Komljenovic [2006] VSCA 136 and R v Giretti (1986)
24 A Crim R 112;or the obtaining by deception or
theft as in DPP v Stark
[2006] VSCA 61. There is no duplicity in alleging a
single occurrence of an offence by alternative factual
scenarios of different occasion: R v Senese
[2004] VSCA 136.
Duplicity at trial is overcome if the prosecution makes
an election: Johnson v Miller[1937] HCA 77, (1937) 59 CLR 467; Rixon v Thompson [2009] VSCA 84. This requires identifying the
specific alleged occurrence of the offence which is
relied upon. With latent duplicity, the election must
identify the occasion, transaction or occurrence to which
the count refers and distinguish it from other like
occasions, transactions or occurrences indifferently
answering the description contained in the complaint: Johnson
v Miller per Dixon J; DPP v Judge Lewis
[1997] 1 VR 39 (tie the evidence to one of the instances
and make it incapable of equal application to each of the
other instances). The technique of nominating a
"first occasion" will overcome the difficulties
identified in S v R provided that it would not
prevent fair trial and there is some way that the
specific act that constitutes the offence charged in the
count can be identified and distinguished from all other
similar conduct; if the existence of the first occasion
within the dates specified is notional rather than
evidence based, then the prosecution will have failed to
distinguish between the act it set out to prove and the
uncharged acts of the same nature and latent duplicity
will not have been avoided; this does not mean that some
distinguishing feature is required additional to evidence
that establishes that the act constituting the offence
charged was the first occasion on which such conduct
occurred: Vesey v R[2011] VSCA 309; TC v R[2011]
VSCA 190; PPP v R
[2010] VSCA 110; R v Osborne
[2009] VSCA 88; R v DWB
[2008] VSCA 223, (2008) 20 VR 112.
The remedy for refusal or failure to elect a specific
offence depends on the circumstances. It may include stay
of count for abuse of process, quashing of count,
exclusion of evidence, directed acquittal, discharge of
jury or on appeal, quashing of conviction. Where there is
latent ambiguity, entitlement to remedy requires showing
also some real prejudice or unfairness to the accused: PPP v R
[2010] VSCA 110; R v NVD
[2007] VSCA 230, (2007) 177 A Crim R 108.
On a plea of guilty, a duplicitous count is permitted;
the practice is known as a rolled up or lumped count: R v Wang
[2009] VSCA 67.
"Duplicity" is sometimes used in another sense
namely whether a count has another count duplicating it.
In R v Warburton
[2006] VSC 446, an issue arose in advance of jury trial
whether counts were "duplicitous" in this sense
(and held on review not so). Issues of this kind at trial
really are ones of forestalling or dealing with double
jeopardy, or on appeal, of unsafeness.
> Identification
version 8 January 2012
Visual identification evidence adduced
by the prosecutor is not admissible unless - (a) an
identification parade that included the defendant was
held before the identification was made; or (b) it would
not have been reasonable to have held such a parade; or
(c) the defendant refused to take part in such a parade -
and the identification was made without the person who
made it having been intentionally influenced to identify
the defendant: Evidence Act s.114. In
s.114, visual identification evidence means
identification evidence relating to an identification
based wholly or partly on what a person saw but does not
include picture identification evidence. The section
elucidates the matters that may be taken into account by
the court in determining whether it was reasonable to
hold an identification parade in determining whether it
was reasonable to hold an identification parade.
Picture identification evidence is in certain defined
circumstances inadmissible: Evidence Act s.115.
There is no compulsion that an accused participate in an
identification parade, but refusal is usually to go to
jury, being explanation for lack of parade: R v Davies
[2005] VSCA 90, (2005) 11 VR 314.
Aural (voice) identification and identification of
objects eg guns: R v Ong[2007]
VSCA 206, (2007) 176 A Crim R 366; R v Callaghan[2001] VSCA 209, [2001] 4 VR 79; aural R v Harris
No 3 [1990] VR 310; R v Hentschel [1988] VR
362.
Required directionson risks of identification: Evidence Act s.116; Domican v R
[1992] HCA 13, (1992) 173 CLR 555; Sindoni v R
[2011] VSCA 195; R v Dupas (No 3) [2009] VSCA 202; R v Abbouchi[2008] VSCA 171. The terms of the warning need not
follow any particular formula. But it must be cogent and
effective. It must be appropriate to the circumstances of
the case. Consequently, the jury must be instructed as to
the factors which may affect the consideration of the
identification evidence in the circumstances of the
particular case. A warning in general terms is
insufficient. The attention of the jury should be drawn
to any weaknesses in the identification evidence. The
trial judge should isolate and identify for the benefit
of the jury any matter of significance which may
reasonably be regarded as undermining the reliability of
the identification evidence.
There is a distinction between recognition evidence and
identification evidence: R v Defrutos[2008] VSCA 55; R v Spero
[2006] VSCA 58, (2006) 13 VR 225.
> Parties to a crime
version
19 February 2011
Joint participants
Parties act in "joint criminal
enterprise" or "common purpose" when the
crime they commit is within the scope of an understanding
or arrangement between them; all such parties are liable
for the offending: Likiardopoulos v R [2010] VSCA 344; McAuliffe v R[1995] HCA 37, (1995) 183 CLR 108; Arafan v R
[2010] VSCA 356 . When all such parties are present or
constructively present at a crime, the particular kind of
joint criminal enterprise or common purpose has often
been described, particularly in earlier cases, as action
in concert: R v Jensen and Ward [1980] VR 194; R
v Lowery and King (No 2) [1972] VR 560. There has for
long been another principle, now often described as
extended common purpose, which extends liability of those
who enter an agreement or understanding to commit a crime
to such further crimes as were unintended but foreseen
acts which might arise out of the originally planned
crime: R v Taufahema[2007] HCA 11, (2007) 228 CLR 232; Clayton v R
[2006] HCA 58, (2006) 81 ALJR 439; Johns v R
[1980] HCA 3, (1980) 143 CLR 108. Where the foresight
extends only to some lesser crime than that committed,
then the liability extends only to the lesser crime: Gillard v R
[2003] HCA 64, (2003) 219 CLR 1 (murder and
manslaughter).
A person who aids or abets the commission of an
indictable offence may be tried or indicted and punished
as a principal offender: Crimes Act s.323.
Participation as an aider and abettor occurs where a
person whilst aware a crime is being committed does one
or other of first, intentionally encouraging another to
commit it, or, secondly, intentionally encouraging the
other by words or by presence and behaviour to commit it,
or, thirdly, intentionally conveying to the other by
words or by presence and behaviour assent and concurrence
in the other’s commission of it: R v Al Qassim[2009] VSCA 192;R v Lam and Ors[2008] VSCA 109, (2008) 185 A Crim R
453; R v Lowery and King (No 2) [1972] VR 560.
This test will normally require the aider and abettor to
be present at the commission of the crime, though this is
may not be an absolute requirement in every case: Arafan v R
[2010] VSCA 356.
A person who has counselled or procured the commission of
an indictable offence (an "accessory before the
fact") may be tried or indicted and punished as a
principal offender: Crimes Act s.323; Likiardopoulos v R [2010] VSCA 344; Osland v R[1998]
HCA 75, (1998) 197 CLR 31.
Accessory after the fact
An accessory after the fact is person who, where a
principal offender has committed a serious indictable
offence, knowing or believing the principal offender to
be guilty of the principal offence or some other serious
indictable offence, without lawful authority or
reasonable excuse does any act with the purpose of
impeding the apprehension, prosecution, conviction or
punishment of the principal offender: Crimes Act s.325; R v Saad
[2005] VSCA 249, (2005) 156 A Crim R 533. A principal
offender and an accessory after the fact are, however,
viewed by s.325 as committing separate offences.
Innocent agency
In some circumstances a, crime can be committed
on the basis of action through the agency of another:White v Ridley
[1978] HCA 38, (1978) 140 CLR 342; Pinkstone v R
[2004] HCA 23, (2004) 219 CLR 444; R v Franklin[2001] VSCA 79, (2001) 3 VR 9; R v Hewitt
[1998] VICSC 318, [1998] 4 VR 862. For federal offences, Criminal Code s.11.3.
> Criminal defence
version
9 January 2012
It follows from the general principles
outlined above that defence of criminal allegation
typically involves propounding that one or more of the
legal elements of the alleged crime is not proved beyond
reasonable doubt against the accused. The crucial
preliminary step is to find and study the precise legal
elements of the crime charged. Often defence of criminal
allegation also involves propounding that one of the
legal elements of the alleged crime is false in fact, but
logically it is not necessary to go to this extent. With
an element where the attempted proof is by circumstantial
evidence, defence of criminal allegation typically
involves propounding that there is at least one
reasonable infererence (or "hypothesis")
consistent with innocence. Often this also involves
propounding an actual explanation of innocence, but
logically it is not necessary to go to this extent.
It is a defence that the identification of the accused as
the person who apparently committed a crime is not proved
beyond reasonable doubt against the accused. Often
defence of criminal allegation also involves propounding
that the accused was not the person who apparently
committed a crime, but logically it is not necessary to
go to this extent.
In a case of alleged complicity in crime, it is defence
that the element of complicity is not proved beyond
reasonable doubt against the accused. Often defence of
criminal allegation also involves propounding that the
accused was not complicit in a crime, but logically it is
not necessary to go to this extent.
Some offences are in definition expressed to allow a
legal defence. Often defences of this kind are said
subject of reverse onus, that is have burden of proof on
defence. With an offence in definition expressed to allow
a legal defence, there is an evidential burden on an
accused to raise the defence: R v DG[2010]
VSCA 173. This merely means that there is a burden on the
defence to point to some evidence which justifies raising
the defence as an issue. This is considerably diminished
by the recognised judicial duty to put arguable legal
defences to the jury, even if not articulated by the
trial conduct on behalf of the accused: Pemble v R[1971]
HCA 20,(1971) 124 CLR 107; R v Tran
[2007] VSCA 19; R v Williamson
[2000] VSCA 5.
In some circumstances with crimes against the person,
informed consent by the harmed person is a defence: Neal v R
[2011] VSCA 172.
In rare circumstances, there is a defence of duress: Martin v R[2010] VSCA 153; R v Goldman[2007] VSCA 25;R v Japaljarri
[2002] VSCA 154, (2002) 134 A Crim R 261; R v Zaharias[2001] VSCA 168, (2001) 122 A Crim R 586; R v
Hurley [1967] VR 526. For homicide, there is now
instead statutory provision.
In rare circumstances, there is a defence of necessity: R v Japaljarri
[2002] VSCA 154, (2002) 134 A Crim R 261; R v
Loughnan [1981] VR 443; R v Dixon-Jenkins
(1985) 14 A Crim R 372.
Intoxication is not a legal defence. However, the fact
that an accused was or might have been intoxicated
ordinarily is relevant to whether elements of mens rea
and voluntariness are proved: R v O'Connor[1980] HCA 17, (1980) 146 CLR 64; R v TC[2008]
VSCA 282; R v McCullagh
[2002] VSCA 163; R v Faure
[1999] VSCA 166, [1999] 2 VR 537. It may also bear on
breach of objective standard for offences with an element
of that kind though this is limited for for charges of
murder, manslaughter or defensive homicide, see Crimes
Act ss.9AB, 9AJ. For federal
offences, Criminal Code s.8.1.
> Unfitness to be tried and
mental impairment
version
2 November 2011
An issue which can arise is whether an
accused by time of trial or plea of guilty hearing is fit
to be tried: Crimes (Mental Impairment and Unfitness to be
Tried) Act; SMv R [2011]
VSCA 332; R v NCT
[2009] VSCA 240; R v Langley
[2008] VSCA 81. There is trial before jury solely as to
the issue of fitness to plead. Section 6 provides:
(1) A person is unfit to stand trial for an offence if,
because the person's mental processes are disordered or
impaired, the person is or, at some time during the
trial, will be —
(a) unable to understand the nature of the charge; or
(b) unable to enter a plea to the charge and to exercise
the right to challenge jurors or the jury; or
(c) unable to understand the nature of the trial (namely
that it is an inquiry as to whether the person committed
the offence); or
(d) unable to follow the course of the trial; or
(e) unable to understand the substantial effect of any
evidence that may be given in support of the prosecution;
or
(f) unable to give instructions to his or her legal
practitioner.
(2) A person is not unfit to stand trial only because he
or she is suffering from memory loss.
In the event of verdict of fit to plead, the case
proceeds as normally, before fresh jury if there is still
contest. A verdict of unfit to be tried is no sense a
finding of defence. It gives the judge powers depending
upon the circumstances either to postpone trial of the
allegations or proceed to special hearing of them before
a fresh jury. A judge has power to vacate an order that
there be an investigation of fitness to stand trial if
circumstances change before a jury is empanelled: R v Demicoli
[2006] VSCA 69. Appeal against verdict: Crimes Act s.570C; Criminal Procedure Act s.14A.
Mental impairment is a limited defence: Crimes (Mental Impairment and Unfitness to be
Tried) Act; R v Fitchett
[2009] VSCA 150; R v Gemmill
[2004] VSCA 72 . The time in issue is the time of the
alleged offence. It is a limited defence because if
found, there is still to be sentencing, though various
special sentencing options are provided. There is, before
the empanelment of jury, judicial power to direct a
verdict of not guilty by reason of mental impairment
where the prosecution and the defence agree that the
proposed evidence establishes the defence: Crimes (Mental
Impairment and Unfitness to be Tried) Act s.21(4); R v Whelan
[2006] VSC 319. For mental impairment, the Act extends to
summary hearings at the Magistrates' Court.
On trial or special hearing, intellectual disability and
mental illness can matter also as to whether the acts of
the person were voluntary and whether there was a
required intent. The relationship between the insanity
defence and these other issues was considered by the High
Court in R v Falconer[1990] HCA 49, (1990) 171 CLR 30.
this page is www.justd.com/notes1.htm
page author
Don
Just barrister of Victorian
Bar Melbourne,
Victoria, Australia