PROOF: EVIDENCE. SPECIFICITY AND PARTICULARITY, BURDEN OF PROOF, STANDARD OF PROOF

version 11 March 2024

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. Much of the Victoria evidence law 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 a charge must at the least identify the essential factual ingredients of the offence: Kirk v IRC [2010] HCA 1, (2010) 239 CLR 531. 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 intending 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] VicRp 71, [1992] 2 VR 405. There is an obligation to give early notice of issues of this kind: Downer EDI Works Pty Ltd v R [2017] VSCA 27, Criminal Procedure Act s.10.


Burden of proof

Generally, the burden of proof of guilt is on prosecution, there being a presumption of innocence: Charter of Human Rights and Responsibilities Act s.25(1); X7 v Australian Crime Commission [2013] HCA 29, (2013) 248 CLR 92; Milkins v R [2011] VSCA 93, sometimes, together with the standard of proof (below), called "the golden thread" following UK House of Lords case Woolmington v DPP [1935] UKHL 1, [1935] AC 462. This is to prove sufficient facts to make out against the accused each of the elements of the crime defined by law. If the prosecution fails to satisfy the jury (or other tribunal of fact) of any element of a crime, then the prosecution fails and the result is a verdict of not guilty (if jury) or a dismissal. A verdict of not guilty or a dismissal is not of itself a finding of innocence.

In Woolmington, the reason given for the principle was its very long historical acceptance in England (a partial exception with some support was rejected as recent error). The deeper reason typically given is its safeguarding tendency against the wrongful finding of guilt and its consequences; it is the "jealous protection of liberty from which the golden thread is spun": Thompson v R [1989] HCA 30, (1989) 169 CLR 1 (per Brennan J).

Defence response to prosecution opening required by Criminal Procedure Act s.183 does not make any fundamental alteration to the accusatorial system of criminal justice, nor impinge upon the privilege against self-incrimination: Alfarsi (a pseudonym) v R [2021] VSCA 283.

Some statutory offences are defined with an extent of reversed legal burden of proof sometimes called reverse legal onus which requires the defence to prove some defensive part of the alleged offence if the defence is to succeed: Braysich v R [2011] HCA 14, (2011) 243 CLR 434.

Some statutory offences are defined with an extent of reversed evidential burden of proof sometimes called reverse evidential onus which requires the defence to point to some evidence which justifies raising the defence as an issue: R v Khazaal [2012] HCA 26, (2012) 246 CLR 601; R v DG [2010] VSCA 173.


Standard of proof

The standard of proof upon the prosecution is to prove the elements of the offence beyond reasonable doubt. Unless an enactment otherwise provides, the only matters that the trial judge may direct the jury must be proved beyond reasonable doubt are - (a) the elements of the offence charged or an alternative offence; and (b) the absence of any relevant defence: Jury Directions Act s.61. The trial judge may relate the evidence in the trial to directions under section 61 in many different ways: see Notes to s.61. Where a the prosecution reliance upon a charged act relied is as tendency evidence it also must be proved beyond reasonable doubt before it can be so used: DPP v Roder (a pseudonym) [2023] VSCA 262.

It is generally speaking unwise for a trial judge to attempt any explication of the concept of reasonable doubt beyond observing that the expression means what it says and that it is for the jury to decide whether they are left with a reasonable doubt (and in certain circumstances explaining that a reasonable doubt does not include fanciful possibilities) and contrasting the standard of proof beyond reasonable doubt with the lower civil standard of proof on the balance of probabilities: R v Dookheea [2017] HCA 36, (2017) 262 CLR 402; Davies v R [2019] VSCA 66; Hanlon v R [2018] VSCA 81. Jury Directions Act s.63 provides that without limiting any other power of a trial judge to give the jury an explanation of the phrase 'proof beyond reasonable doubt', a trial judge may give the jury an explanation of the phrase if the jury asks the trial judge (a) a direct question about the meaning of the phrase; or (b) a question that indirectly raises the meaning of the phrase. For how explanation may be given in response to jury question: s.64. The rule is embodied to confined extent by Evidence Act s.141 and s.8.

Where there are competing versions of events between prosecution and defence witnesses, it follows proof of guilt is not merely a choice between versions, and often it will be necessary to give a jury directions, commonly known as Liberato directions, on this point: De Silva v R [2019] HCA 48, (2019) 268 CLR 57; Liberato v R [1985] HCA 66; (1985) 159 CLR 507; Platt v R [2020] VSCA 130. Though frequently public commentary fails to understand, in such a case a verdict of not guilty does not necessarily indicate a finding the prosecution witness was not to be believed; it necessarily indicates that there was at least a reasonable doubt whether to believe the witness.

With reversed legal burden of proof, usually the standard is balance of probabilities.

PROOF: DIRECT, CIRCUMSTANCES AND INFERENCE, WILFUL BLINDNESS, PRESUMPTION OF REGULARITY

version 4 January 2022

Direct

One method of proof is direct from witness testimony, documents or real evidence such as physical objects.

With witness testimony, in addition to content, manner and demeanour counts but there are dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses; demeanour-based judgments are highly subjective: Pell v R [2020] HCA 12, (2020) 268 CLR 123; Fox v Percy [2003] HCA 22, (2003) 214 CLR 118. The latter case endorses an old judicial quote: "... an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour". Direction to juries warns not to jump to conclusions based on how a witness gives his or her evidence, looks can be deceiving, there are too many variables to make the manner in which a witness gives evidence the only, or even the most important factor: Victorian Judicial College, Criminal Charge Book [1.6.1], [3.5.1].

At least where the fact finder is a court, it may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory: the court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability: Fennell v R [2019] HCA 37. Presumably directions of this kind may be appropriate for a jury.


Circumstances and inference

One method of proof is from circumstances established by witness testimony, documents or real evidence such as physical objects. The mental process from regard to circumstances to conclusion of guilt is known as inference.

One kind of such proof is "links in a chain"; another kind is "strands in a cable": Shepherd v R [1990] HCA 56, (1990) 170 CLR 573; Beqiri v R [2017] VSCA 112; R v Kotzmann [1999] VSCA 27, [1999] 2 VR 123. As to "links in a chain" proof, Jury Directions Act ss. 61-62 relieve the judge of the obligation to give directions with respect to the standard of proof relating to indispensable intermediate facts: Beqiri.

When circumstantial proof is attempted, it follows from the need for proof beyond reasonable doubt that the inference of guilt is only to be drawn if all reasonable hypotheses (possible explanations) consistent with innocence are excluded: R v Baden-Clay [2016] HCA 35, (2016) 258 CLR 308; Knight v R [1992] HCA 56, (1992) 175 CLR 495; Peacock v R [1911] HCA 66, (1911) 113 CLR 619. 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, (2009) 26 VR 219. On directions to jury: R v Rajakaruna (No 2) [2006] VSCA 277, (2006) 15 VR 59.

Possession of accoutrements, for example equipment, cash which might have been used in alleged offending may be relevant to circumstantial proof: Falzon v R [2018] HCA 29; Arico v R [2018] VSCA 135; Festa v R [2001] HCA 72, (2001) 208 CLR 593; Thompson and Wran v R [1968] HCA 21, (1968) 117 CLR 313; Joseph v R [2014] VSCA 343; R v Dunmall [2008] VSCA 22.

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.

Evidence of habit is a form of circumstantial evidence which may have considerable probative value towards proof of guilt or towards exculpation: Pell v R [2020] HCA 12, (2020) 268 CLR 123.


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] VicRp 14, [1992] VR 240.

DUPLICITY

version 9 April 2023

On a contest, unless a there is a course of conduct charge (see further below), it is the defect of duplicity for a charge 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 charge: 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] VicRp 49, [1988] VR 411. There is no overt duplicity where a crimes is defined in forms with alternative elements, for instance the provisions in Morley (a Pseudonym) v R [2020] VSCA 180 and R v Ginies [1972] VicRp 43, [1972] VR 394. The crime of murder is an important example, also manslaughter, also culpable driving. Whether with such a crime a jury must be directed of the need for unanimity on one form lacks universal answer. No for murder and manslaughter: R v Walsh [2002] VSCA 98. Yes for culpable driving: Wells v R (No 2) [2010] VSCA 294. Some uncertainty for handling stolen goods, Zandipour v R [2017] VSCA 179, (2017) 53 VR 256 (footnotes.The essential facts that underpin each of the bases upon which the Crown put its case on a charge may be of sufficient similarity as not to require unanmity: Lanciana v R [2023] VSCA 78. 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] VicSC 765, (1994) 76 A Crim R 1. There is no overt duplicity where the facts for an essential ingredient of a crime are particularised on the charge in multiplicity, but a jury must be directed of the need for unanimity on one proof: Magnus v R [2013] VSCA 163; R v Walsh [2002] VSCA 98.

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 charge 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] VicSC 160, (1982) 7 A Crim R 8. Sometimes it is called the defect of uncertainty. It is not latent duplicity to allege as a single offence activity comprised of multiple acts being part of a single transaction e.g. the violent activity in Zandipour v R [2017] VSCA 179, (2017) 53 VR 256, R v Heaney [2009] VSCA 74, (2009) 22 VR 164, and R v Goldman [2007] VSCA 25, or the sexual activity in PDI 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 e.g. the drug trafficking provisions in R v McCulloch [2009] VSCA 34, (2009) 21 VR 340; R v Komljenovic [2006] VSCA 136 and R v Giretti [1986] VicSC 484, (1986) 24 A Crim R 112. There is no latent duplicity where the proof of an essential ingredient of the crime charged is put on alternative facts, but a jury must be directed of the need for unanimity on one proof: R v Klamo [2008] VSCA 75, (2008) 18 VR 644.

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 charge 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 alleged in the charge 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: Pate (a Pseudonym) v R [2019] VSCA 170; JRW v R [2013] VSCA 255; Veysey 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 charge 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.

It is different if there is a course of conduct charge: Criminal Procedure Act ss.64A, 181A, Schedule 1 para 4A; Harlow (a Pseudonym) v R [2018] VSCA 234; DPP v Jarvis (a Pseudonym) [2018] VSCA 173.

On a plea of guilty, by agreement a duplicitous charge is permitted; the practice is known as a rolled up count: Schembri v R [2020] VSCA 217; Bellizia v R [2016] VSCA 21.

IDENTIFICATION

version 11 September 2023

On a contest, evidence by Evidence Act Dictionary means evidence that is - (a) an assertion by a person to the effect that an accused was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where - (i) the offence for which the accused is being prosecuted was committed; or (ii) an act connected to that offence was done - at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or (b) a report (whether oral or in writing) of such an assertion.

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; Fowkes v R [2023] VSCA 160. 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. For s.114 to apply, it is necessary that the person testifying as to the description asserts some resemblance between the person described and the accused: DPP v Bass (a Pseudonym) [2016] VSCA 110.

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.

Picture identification evidence is in certain defined circumstances inadmissible: Evidence Act s.115.

Aural (voice) identification and identification of objects e.g. guns: Tran v R [2016] VSCA 79; 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] VicRp 28, [1990] VR 310; R v Hentschel [1988] VicRp 46,[1988] VR 362.

Identification evidence is subject also to possible exclusion by operation of the prejudice rule: see notes5; Evidence Act s.137; R v Dickman [2017] HCA 24, (2017) 261 CLR 601 (exclusion an error); DPP v Wearn (a pseudonym) [2018] VSCA 39 (exclusion an error); Bayley v R [2016] VSCA 160 (exclusions required, the examples being long delayed identification from single Facebook image of person since notorious followed by photoboard selection). Courts in this context, including in Bayley, have often referred to unfair prejudice arising from displacement effect or unconscious transference.

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.

Jury directions on risks of identification: Jury Directions Act sections 35-37; Davies v R [2019] VSCA 66.

STATUTORY COMPLICITY, ACCESSORIES, INNOCENT AGENCY, CORPORATIONS

version 11 September 2023

Statutory complicity

A person involved in commission of offence is taken to have committed the offence: Crimes Act s.324. Statutory complicity is the term the Criminal Charge Book (Victoria) uses.

A person is involved in the commission of an offence if the person (a) intentionally assists, encourages or directs the commission of the offence; or (b) intentionally assists, encourages or directs the commission of another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence; or (c) enters into an agreement, arrangement or understanding with another person to commit the offence; or (d) enters into an agreement, arrangement or understanding with another person to commit another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence: Crimes Act s.323; DPP v Grebregiorgis [2023] VSCA 166.

A person is not taken to have committed an offence if the person withdraws from the offence: Crimes Act s.324. Note to s.324 refers to common law, for example White v Ridley [1978] HCA 38; (1978) 140 CLR 342; R v Tietie, Tulele and Bolamatu (1988) 34 A Crim R 438; R v Jensen and Ward [1980] VicRp 24, [1980] VR 194.

Other offenders need not be prosecuted or found guilty: Crimes Act s.324A.

Offenders role need not be determined: Crimes Act s.324B.

Persons alleged involved in commission of an offence by operation of s.324 are sometimes still said to be in joint criminal enterprise: e.g. Dean v R [2020] VSCA 100; Falzon v R [2019] VSCA 294. This re-employs the terminology of abolished common law: Crimes Act s.324C. Various other terms from former law might also still be encountered in loose usage such as accomplice and actor in concert.


Accessories

An accessory is a 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 are viewed by s.325 as committing separate offences.


Innocent agency

In some circumstances acrime 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. For federal offences, Criminal Code s.11.3.


Corporations

A corporation can be directly liable for the commission of a criminal offence actually perpetrated by a directing mind and will: Hamilton v Whitehead [1988] HCA 65; (1988) 166 CLR 121; DPP v Downer EDI Pty Ltd [2015] VSCA 287 endnote; Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1, [1972] AC 153.

It has been said there may be an alternative basis of a corporation's criminal liability, namely, as an aider, abettor, counsellor or procurer of the offence committed by the human principal offender: EPA v Caltex Refining [1993] HCA 74, (1993) CLR 477 per Mason CJ and Toohey J citing earlier authority. In Victoria today, any comparable basis would be through resort to Crimes Act ss.323-325, above.

ATTEMPTED CRIMES

version 9 April 2018

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

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

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

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

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

CRIMINAL DEFENCE

version 10 JMay 2023

It follows from the general principles of proof outlined above that defence of criminal allegation typically involves arguing that one or more of the legal elements of the alleged crime is not proved beyond reasonable doubt. Whilst defence advocacy may make vigorous assertions of innocence, even of impossibility of guilt as in Pell v R [2020] HCA 12, (2020) 268 CLR 123, it remains for the prosecution to prove the elements beyond reasonable doubt.

The crucial preliminary step in defence is to find and study the precise legal elements of the crime charged. Often defence of criminal allegation also involves arguing 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.

Where the prosecution proof of one or more of the legal elements of the alleged crime depends wholly or substantially upon the credibility and reliability of a single witness, arguing that there is a reasonable doubt often involves pointing to claimed weaknesses in the account given, also often to claimed reasonable doubt arising from surrounding circumstances or combination of circumstances.

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 inference (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 involvement or being accessory, it is defence that it is not proved beyond reasonable doubt.

Alibi defence is the assertion the accused was elsewhere (and not liable by complicity) at the time of alleged offence. There are some special procedural requirements for the calling of alibi evidence: Criminal Procedure Act esp. for trial s.190.

There is a defence of reasonable self-defence, requiring disproof by the prosecution: Crimes Act s.322K. The circumstances in which a person may carry out conduct in reasonable self-defence include the defence of the person or another person; the prevention or termination of the unlawful deprivation of the liberty of the person or another person; and the protection of property: Notes to s.322K. The defence does not apply to a response to lawful conduct: s.322L. Part of the definition of self-defence is that the person carrying out the conduct believes it is necessary in self-defence. A further part of the definition is that the conduct is a reasonable response in the circumstances as the person perceives them. In the case of murder, by s.322K the belief must be that the threat is to inflict death or really serious injury. It is probably necessary the defence be from unlawful attack being made or about to be made, as common law required: Viro v R [1978] HCA 9; (1978) 141 CLR 88.

There is a defence of duress, requiring disproof by the prosecution: Crimes Act s.322O. Part of the definition of the defence of duress is that the person reasonably believes that (i) a threat of harm has been made that will be carried out unless an offence is committed; and (ii) carrying out the conduct is the only reasonable way that the threatened harm can be avoided. The reasonableness of the belief refers to a person of ordinary firmness of mind taken to have some of the accused’s characteristics including the accused’s age and gender: Rowan (a pseudonym ) v R [2022] VSCA 236. A further part of the definition is that the conduct is a reasonable response to the threat. By Parker this reasonableness refers to the circumstances as a reasonable person, possessing the personal characteristics of the accused, would have perceived them to be. By s.322O, in the case of murder the belief must be that the threat is to inflict death or really serious injury.

With the defences of reasonable self-defence and duress there are provisions concerning family violence. As to evidence of family violence and its relevance to belief and reasonableness: Crimes Act s.322J, s.322M and s.322P. As to jury directions in such cases: Jury Directions Act ss.55-60.

There is a defence of sudden or extraordinary emergency, requiring disproof by the prosecution: Crimes Act s.322R; Loung v DPP (Cth) [2013] VSCA 296, (2013) 46 VR 780 on a similar defence to Commonwealth offences by Criminal Code 10.3, claim by accused that participation in attempted drug offence was immediate and in fear of being killed by others; Stevens v R [2005] HCA 65, (2005) 227 CLR 319 on a similar defence under Queensland law, claim by accused that act causing death was attempted prevention of suicide (raising also issue of lack of intent). By s.322R, in the case of murder (in addition to other belief elements) there must be belief that the threat is to inflict death or really serious injury.

See further as to considerations of belief and reasonableness and, in the context, significance of intoxication: Crimes Act s.322T.

There is a defence of reasonable crime prevention or arrest, in a criminal case requiring disproof by the prosecution. It applies to using such force not disproportionate to the objective as believed on reasonable grounds to be necessary to prevent the commission, continuance or completion of an indictable offence or to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence: Crimes Act s.462A considered in context of civil law action for police tort in Gebrehiwot v State Of Victoria [2020] VSCA 315; obliquely mentioned in R v Smith [1995] VicRp 2, (1995) 1 VR 310. An example provided in Crimes Act s.462A is that of a police officer or protective services officer who uses lethal force on a person to prevent that person from committing an indictable offence that involves causing really serious injury or death because the officer believes on reasonable grounds that it is necessary to use that force for that purpose. The police officer or protective services officer may do so before that offence is committed.

Except for treason or murder, there is for a woman a defence of marital coercion, requiring disproof by the prosecution: Crimes Act s.336; R v G.J. Williams Court of Appeal (Vic) 16 October 1997.

With crimes against the person, consent is a common law defence in some circumstances which the law has guarded carefully, including proper medical, sporting and exhibition, also sado-masochistic sexual activity short of infliction of significant physical injury, and requiring prosecution proof of lack of consent: Reeves v R [2013] HCA 57, (2013) 88 ALJR 215; Neal v R [2011] VSCA 172; R v Stein [2007] VSCA 300 (being manslaughter case, went to issue of unlawfulness); Pallante v Stadiums Pty Ltd (No 1) [1976] VicRp 29, [1976] VR 331 (civil case also referring to crime). The sexual crimes against the person which have lack of consent as an element have their own definitional provisions.

There is a defence of mental impairment, see section below.

Diplomatic immunity is for practical purposes rather like a defence. It is rare for any such claims to reach the higher criminal courts though e.g. unsuccessful claims in Von Arnim [1999] HCATrans 160 (mentions County Court presentment); Von Arnim [1999] FCA 1747 (concerning extradition). The immunities and privileges for diplomatic agents and family members stated by the Vienna Convention on Diplomatic Relations are made Australian law by Commonwealth law Diplomatic Privileges and Immunities Act. They are set out in the Schedule to the Act and include, subject to waiver, such as these. Article 29: The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity…Article 31: 1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State...Article 41: 1. Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State...
For high officers and missions of certain international organizations see International Organizations (Privileges and Immunities) Act. Some comparable privileges apply to overseas missions and persons associated with them, seeOverseas Missions (Privileges and Immunities) Act.

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. For federal offences, Criminal Code s.8.1.

On ethical duties of criminal defence counsel (and all other barristers including prosecutors), see Legal Profession Uniform Conduct (Barristers) Rules at www.vicbar.com.au. For solicitors in criminal law practice (and all other solicitors), see Legal Profession Uniform Law Australian Solicitors Conduct Rules. As to defence counsel "Whether he be in fact guilty or not, a prisoner is, in point of law, entitled to acquittal from any charge which the evidence fails to establish that he committed, and it is not incumbent on his counsel by abandoning his defence to deprive him of the benefit of such rational arguments as fairly arise on the proofs submitted": Tuckiar v R [1934] HCA 49, (1934) 52 CLR 335. Also, the law imposes a duty of loyalty having source in fiduciary duties owed by a lawyer to client: Visser v DPP (Cth) [2020] VSCA 327.

On duties of criminal defence counsel (and prosecutor) to request Judge that particular directions to jury be given or not given: Jury Directions Act s.12.

 UNFITNESS TO BE TRIED AND MENTAL IMPAIRMENT

version 3 January 2022

Introduction

Though often confused in public understanding, unfitness to be tried and mental impairment are quite different matters.

Unfitness to be tried prevents a trial proceeding in the normal manner but generally a varied kind of consideration of alleged guilt proceeds sooner or later and, if finding of guilt, sentencing occurs.

Mental impairment at time of alleged offending is a complete defence available at trial in certain extreme circumstances though the mentally impaired person may still be subject to major confinement of liberty.


Unfitness to be tried

An issue which can arise is whether an accused at time for trial or plea of guilty hearing is unfit to be tried: Crimes (Mental Impairment and Unfitness to be Tried) Act; R v NCT [2009] VSCA 240, (2009) 26 VR 247; R v Langley [2008] VSCA 81.

At any time after an indictment has been filed, if it appears to the court before which the accused is to be tried that there is a real and substantial question as to the fitness of the accused to stand trial, the court must reserve the question of the fitness of the accused to stand trial: s.9(1); Camurtay v R [2020] VSCA 221.

There is then an investigation before jury solely as to the issue of fitness to be tried ("to stand trial"), or in the COVID-19 circumstances of 2020, before judge alone: Carson (a Pseudonym) v R [2020] VSCA 202.

The question of fitness is a material consideration not only during the pre-trial proceedings, but throughout the course of a trial: s.9 (2); SM v R [2011] VSCA 332.

The question may be raised more than once in the same proceeding: s.9(2).

The party raising the issue has the onus of proof which is to be on balance of probabilities: s.7.

Section 6 provides: (1) A person is unfit to stand trial for an offences 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 be tried, the case proceeds as normally before fresh jury if there is still contest and includes determination of any mental impairment defence.

A verdict of unfit to be tried is no sense a finding of defence. It requires by s.12 that the judge adjourn the trial if determining that the accused is likely to become fit within the next 12 months, or proceed to special hearing.

A special hearing must be before a fresh jury and include determination of any mental impairment defence as for example Richards (a Pseudonym) v R (No 2) [2017] VSCA 17. Procedure at a special hearing includes explanation to jury by Judge of its nature: s.16.

In the event of adjournment there is by s.12 power to remand in custody including to imprison.

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.

The closely related common law principles for unfitness to be tried previously existing in Victoria were taken to be from a trial ruling R v Presser [1958] VicRp 9, [1958] VR 45.


Mental impairment

The defence of mental impairment resembles what in times past was known as the defence of criminal insanity.

A verdict of not guilty due to mental impairment is quite different from an ordinary verdict of not guilty. A supervision order may be made often involving major confinement: Crimes (Mental Impairment and Unfitness to be Tried) Act ss.23-38F.

It requires an extreme kind of mental impairment as defined by Crimes (Mental Impairment and Unfitness to be Tried) Act especially s.20,

The definition of the defence of mental impairment is that at the time of engaging in conduct constituting the offence the person was suffering from a mental impairment that had the effect that (a) he or she did not know the nature and quality of the conduct; or (b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

It becomes in issue when claimed by an accused at trial or summary hearing. If unfit to be tried, it arises if claimed at special hearing.

The issue it raises is whether a person at the time of engaging in conduct constituting the offence is not guilty due to mental impairment at the time of engaging. The prosecution still needs to prove the elements of the offence including mental elements. If these are not proved, there is ordinary verdict of not guilty. If the elements of the offence are proved and a claim of not guilty due to mental impairment is rejected, there is ordinary verdict of guilty with any lesser level impaired mental functioning relevant to sentence: sentencing notes.

The terms of s 20 incorporate the common law test of criminal insanity as it has developed in Australia, including confinement of the defence to conditions being a disease, defect or disorder of the mind: Kosian v R [2013] VSCA 357 (form of psychotic illness); see also R v Fitchett [2009] VSCA 150 (form of psychotic illness). A simple drug-induced psychosis is not such a condition: R v Sebalj [2006] VSCA 106; R v Konidaris [2014] VSC 89.

Para (a) means the state of mind is that in which the accused is prevented by mental impairment from knowing the physical nature of the act the accused is doing: Kosian.

There is, without empanelment of jury, judicial power upon trial but not upon special hearing 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: s.21(4); SM v R [2013] VSCA 342, (2013) 46 VR 464. Otherwise the issue is to be determined by a jury on the balance of probabilities with burden of proof on the accused: s.21.

The closely related or perhaps identical common law limited defence of criminal insanity previously existing in Victoria had old origin from England known as the M'Naghten Rules: M'Naghten's Case [1843] UKHL J16, (1843) 10 Cl & Fin 200 (8 ER 718).

CRIMINAL RESPONSIBILITY OF CHILDREN

version 3 January 2022

In Victoria, it is conclusively presumed that a child under the age of 10 years cannot commit an offence: Children, Youth and Families Act s.344.

There is at common law a rebuttable presumption referred to as doli incapax that a child aged at least 10 but less than 14 is incapable of committing a criminal act. The presumption is rebutted if the prosecution proves beyond reasonable doubt the child knew the act or acts were seriously wrong; the presumption cannot be rebutted merely as an inference from the doing of that act or those acts: RP v R [2016] HCA 53.

A child without responsibility may be innocent agent of a person with responsibility, criminal liability thereby attaching to the latter by the principle of innocent agency, see above this page.

For children, the Children's Court of Victoria with a few exceptions has jurisdiction to hear and determine charges against young people. For alleged breach of Victoria law, Children, Youth and Families Act s.3 defines child in the case of a person who is alleged to have committed an offence, a person who at the time of the alleged commission of the offence was under the age of 18 years but of or above the age of 10 years but does not include any person who is of or above the age of 19 years when a proceeding for the offence is commenced in the Court. See also Sentencing notes.