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Defining a crime: general principles

Proving a crime: general principles

Conspiracy

Drugs

Fraud, theft, handling, unlawful possession, burglary

> Defining a crime: general principles

version 24 July 2008

Nearly all serious offences, whether at common law or statute, are defined with elements requiring some specified act (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. For more precise and accurate account of these concepts, see Jiminez v R (1992) 173 CLR 572; R v Falconer (1990) 171 CLR 30; He Kaw Teh v R (1985) 157 CLR 523; R v O'Connor (1980) 146 CLR 64.

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.

Wilful blindness occasionally is a relevant consideration, though in strict analysis it is not an extension to the definition of crime but a means of proving intention or knowledge: He Kaw Teh; Bahri Kural v R (1987) 162 CLR 502; R v Crabbe (1985) 156 CLR 464. This will be in very few cases: it must be very clear that it is an appropriate direction to give in the circumstances of the trial: R v Garlick (No 2) [2007] VSCA 23.

Strict liability and absolute liability offences are exceptions to need for mens rea: He Kaw Teh v R (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; Proudman v Dayman (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.

> Proving a crime: general principles

version 12 Sept 2008

Burden of proof normally is on prosecution, there being a presumption of innocence: Charter of Human Rights and Responsibilities Act s.25(1); Green v R (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 offence 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 otherwise dismissal.

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 an evidential burden on an accused to raise the defence: eg R v Garde-Wilson [2005] VSC 441. 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) 124 CLR 107; R v Tran [2007] VSCA 19; R v Williamson [2000] VSCA 5.

Generally the standard of proof upon the prosecution is beyond reasonable doubt. This idea of beyond reasonable doubt is not amenable to elaboration: La Fontaine v R (1976) 136 CLR 62; R v Chatzidimitriou [2000] VSCA 91, (2000) 1 VR 493; R v Cavkic [2005] VSCA 182, (2005) 12 VR 136. Trial judges may contrast the criminal standard of proof with the standard of proof in civil proceedings but it is not essential to do so: R v JMA [2007] VSCA 105. With reverse onus, the standard normally is balance of probabilities.

Where there are competing defence and prosecution versions of events, it follows proof of guilt is not merely a choice between versions, and often it will be necessary to direct a jury on this point: Liberato v R (1985) 159 CLR 507; R v SAB [2008] VSCA 150; R v KDY [2008] VSCA 104; R v Brdarovski [2006] VSCA 231; R v Yusuf (No 2) [2006] VSCA 117; R v Lapuse [1964] VR 43.

Attempted proof of an offence frequently is to large extent by testimony of direct observation or of admission by accused.

Frequently however the attempted proof is at least in part by circumstantial evidence, and sometimes it is wholly so.

Circumstantial evidence and 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) 170 CLR 573; 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, the inference of guilt is only to be drawn if all hypotheses consistent with innocence are excluded: Peacock v R (1911) 113 CLR 619; Knight v R (1992) 175 CLR 495. On directions to jury: R v Rajakaruna (No 2) [2006] VSCA 277.

> Conspiracy especially as in Victoria

version 24 July 2008

In Victoria, Crimes Act s.321F abolishes the common law offence of conspiracy but preserves the separate common law offences of conspiracy to cheat and defraud and conspiracy to defraud. A statutory offence of conspiracy is defined by s.321:

(1) Subject to this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which will involve the commission of an offence by one or more of the parties to the agreement, he is guilty of the indictable offence of conspiracy to commit that offence.
(2) For a person to be guilty under sub-section (1) of conspiracy to commit a particular offence both he and at least one other party to the agreement--
(a) must intend that the offence the subject of the agreement be committed; and
(b) must intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time when the conduct constituting the offence is to take place.

Agreements to commit an offence outside Victoria are included: s.321A; R v Hamilton-Byrne [1995] 1 VR 129. The acquittal of an alleged co-conspirator is inconsequential unless inconsistent: s.321B; R v Darby (1982) 148 CLR 668 and, though concerning alleged completed offences, Osland v R (1998) 197 CLR 31.

If the prosecution believes it has effective count for a substantive offence then it should proceed with those counts. If there is some real basis for doubting that the offence had been committed there may perhaps be justification in alleging a conspiracy. Generally speaking, it is undesirable that conspiracy should be charged when a substantive offence has been committed and there is a sufficient and effective count that this offence has been committed. Hoar v R (1981) 148 CLR 32.

The use of conspiracy and substantive counts could in extreme instance be abuse of process: R v Mills [1986] VR 179 only as reported (1985) 17 A Crim R 214 at 221. There is a tendency for separate trial: Crimes Act s.372 (3A)(1).

As to common law conspiracy to defraud under Victorian law, see R v Walsh and Harney [1984] VR 474. As to extra-territoriality of common law conspiracy to defraud, see Lipohar v R (1999) 200 CLR 48. The requirement of nexus should be liberally applied; a real connection with the jurisdiction will suffice. This seems to displace a narrower view of extra-territoriality taken in Re Hamilton-Byrne [1995] 1 VR 129.

For presentment of conspiracy, conspiracy to cheat and defraud or conspiracy to defraud, the approval of the Director of Public Prosecutions is required: s.321(4), s.321F(4).

Another statutory offence is Drugs, Poisons and Controlled Substances Act s.79, conspiring to traffick, cultivate or possess. The meaning and proof of this conspiracy comes from the common law. It is an alternative to proceeding by the Crimes Act: R v Pepe [2000] VSCA 208, (2000) 2 VR 412.

For conspiracies to defraud the Commonwealth, the test of dishonesty is objective - whether the acts in question were dishonest according to current standards of ordinary decent people: Peters v R (1998) 192 CLR 493; R v Lawrence [1997] 1 VR 459.

A leading case for common law conspiracy is Gerakiteys v R (1984) 153 CLR 317.

The idea is that a conspiracy is complete at a particular instant. Others may later join it. In Victoria, practice often is to conceive of conspiracy as continuing from its commencing instant to its cessation ie between specified dates though for sentencing purposes, the culpability of the later joiner on typical facts it seems should be largely or entirely confined to his or her actual participation. Others however who join to only part of the agreement join a fresh conspiracy.

The distinction between one large conspiracy and multiple smaller conspiracies of comparable kind is not always easy to draw; for example of latter Gerakiteys v R (1983) 165 CLR 87.

The words and acts of an alleged conspirator in furtherance of the conspiracy in absence of another conspirator often will be objectionable hearsay as against that other conspirator. The co-conspirator's rule of evidence is that, once the "foundation" is laid to the satisfaction of the trial judge, such words and acts of each alleged conspirator in furtherance of the conspiracy as otherwise would be inadmissible hearsay, become admissible: Ahern v R (1988) 165 CLR 87; Tripodi v R (1961) 104 CLR 1; R v Pektas [1989] VR 239; R v Su [1997] 1 VR 1; R v White [2003] VSCA 174. The finding of "foundation" is to be on balance of probabilities and is not a matter to be brought to the attention of the jury: R v Bacash [2001] VSCA 193, (2001) 3 VR 428; R v Atallah [2001] VSCA 194, (2001) 3 VR 437. Because the rule applies only to statements in furtherance of the agreement, it is usually inapplicable to a mere narrative of some past event: Tripodi at 7; Su at 40ff. The rule is equally applicable where the conspiracy has been carried out and the common purpose substantive offence is charged as for instance in cases of Tripodi and Bacash. It is however to be remembered that words and acts of an alleged conspirator in furtherance of the conspiracy in absence of another conspirator will not always be hearsay. Hearsay applies against leading such evidence for the purpose of proving its truth. Thus without resort to the co-conspirator's rule of evidence, it is permissible to use the acts and declarations of each, even in the absence of the other, not as proof of the truth of any assertion or implied assertion of the participation of the other, but for example as facts from which the combination might be inferred: R & the A-G of the Cth v Associated Northern Collieries (1911) 14 CLR 387; see also Ahern, Bacash, R v Mbonu [2003] VSCA 52.

Although "overt acts" are commonly particularised they are not themselves component elements of the offence; they merely evidence it. In Lipohar v R (1999) 200 CLR 48, Kirby J (dissenting but not on this point) and Callinan J referred to Glanville Williams Criminal Law: The General Part to make the point. See also Peters v R (1998) 192 CLR 493; R v Weaver (1931) 45 CLR 321.

For federal offences, Criminal Code s.11.5; R v Ong [2007] VSCA 206.

> Drugs especially as in Victoria

version 24 July 2008

Statutory indictable offences under the Victorian Drugs, Poisons and Controlled Substances Act include drugs of dependence s.71-71C trafficking offences, s.72-72B cultivation offences, s.73 possession, s.75 use and s.79 conspiring. There is a long list of "drugs of dependence": see s.4 and Schedule 11 which includes in Part 2 cannabis L (commonly known as marihuana or marijuana) and in Part 3 cocaine, diacetylmorphine (heroin), methylamphetamine (commonly known as speed), MDMA (commonly known as ecstasy) and tetrahydrocannabinol (or THC, the hallucogenic component of cannabis typically relied upon to allege hashish).

Other drug offences are defined by the Commonwealth Customs Act, particularly s.233: for cases under earlier importing narcotic goods provision see He Kaw Teh v R (1985) 157 CLR 523; Kingswell v R (1985) 159 CLR 264; R v Meaton (1986) 160 CLR 359; Kural v R (1987) 162 CLR 502; R v Maio [1989] VR 281. See also Criminal Code.

Most of the offences are defined to require intent or knowledge of the nature of the substance though this usually means of the legal class of the drug in general terms rather than of which particular drug it is: Saad v R [1987] HCA 14, (1987) 61 ALJR 243; DPP Reference No 1 of 2004 [2005] VSCA 172, (2005) 12 VR 299.

For Victoria, the commercial quantities and large commercial quantities are defined by weight of a particular drug or combination of drugs; for cannabis also by number of plants: schedule 11 Parts 2 and 3. "Cannabis" means a plant or any part of a plant of the genus Cannabis L, whether fresh or dried: Drugs, Poisons and Controlled Substances Act s.71 (2); R v Kardogeros [1991] 1 VR 269. For the purpose of counting plants to apply the commercial quantity and large commercial quantity definitions, "plant" has its ordinary sense rather than any technical scientific or botanical sense so that expert scientific evidence on the point is inadmissible; "plant" includes a cutting which has struck or established roots, it also includes a dead plant: R v Francis-Wright [2005] VSCA 79. For Victorian commercial quantity and large commercial quantity offences, it is for Crown to show that the accused had knowledge of the nature of the substance and of the quantity of the substance at the time of the commission of the offence: R v Reed [2008] VSCA 20; R v Callaghan [2007] VSCA 135; R v Garlick [2006] VSCA 127, R v Bui [2005] VSCA 300; DPP Reference No 1 of 2004 above. With cultivating cannabis, if a jury is satisfied beyond reasonable doubt that the accused knew there was a real and significant chance that he or she was cultivating the commercial (or large commercial) quantity, it is open to the jury to infer the requisite intention: R v McKittrick [2008] VSCA 69; R v Page [2008] VSCA 54.

In accordance with general principles of proof, there might at least occasionally be wilful blindness from which intent or knowledge is to be inferred: see further above this page.

As to trafficking, Drugs, Poisons and Controlled Substance Act section 70 provides
"traffick" in relation to a drug of dependence includes--
(a) prepare a drug of dependence for trafficking;
(b) manufacture a drug of dependence; or
(c) sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence.

This is an inclusive meaning. As to any wider meaning, cases which (though considering earlier legislation) generally regarded as applicable are R v Holman [1982] VR 471 at 475-6 (requires at least activity in a commercial setting, that is to say a setting in which it can be fairly inferred that someone involved is making a profit, participation in the progress of goods from source to consumer and movement of the goods between source and consumer, consumer meaning another person with whom in contact for the purpose of transferring ownership or possession or for taking any step directed to those ends); also R v Elem [1982] VR 295; Falconer v Pedersen [1974] VR 185. The s.70 notion of "possession for sale" is considered in R v Bandiera [1999] VSCA 187, [1999] 3 VR 10 and R v Kardogeros [1991] VR 269. The trafficking may be of a continuing kind: R v Giretti (1986) 24 A Crim R 112; R v Komljenovic [2006] VSCA 136; R v Lao [2002] VSCA 15; R v Te [1998] 3 VR 566.

Generally on the concept of possession, see R v Tran [2007] VSCA 164.

If on a s.71 trafficking charge, the prosecution is relying on the “possession for sale” form of trafficking, it is only the saleable weight or number of plants which counts as to the act and intent of the accused, and where there is an issue on the point, a jury should be directed so: R v Nguyen [2006] VSCA 158; R v Francis-Wright [2005] VSCA 79; R v Coviello [1995] VICSC 173, (1995) 81 A Crim R 293.

Proof is aided by "deeming provisions" based on possession, especially sections 5, 70 "traffickable quantity" and 73(2): see R v Clarke and Johnstone [1986] VR 643; R v Tran [2007] VSCA 19; R v Le Doan [2001] VSCA 142; R v Gluyas [2002] VSCA 12, (2002) 128 A Crim R 7; R v Phung [2003] VSCA 32; R v Tragear [2003] VSCA 222.

Possession of information and accoutrements of trade is relevant to proof: Festa v R (2001) 208 CLR 593; Thompson and Wran v R (1968) 117 CLR 313; R v Hofer (1991) 55 A Crim R 225; R v Edwards (1993) 67 A Crim R 439. With drugs it may also be an offence of itself: s.71A.

For offences of possession of substance, material, documents or equipment for trafficking: See s.71A. For supply to a child: s.71B.Section 51 if followed provides immunity for covert operatives, police informers etc who otherwise would be offending: YSA v DPP [2002] VSCA 149; R v Phung [2001] VSCA 195; R v Te [1998] 3 VR 566.

Proof of the nature of substances may be by analyst's or botanist's certificate under Drugs, Poisons and Controlled Substances Act s.120. It may also be by evidence of admission if the admitter is shown to have sufficient general knowledge of the substance: Anglim & Cooke v Thomas [1974] VR 363. These are not exhaustive of the methods for this proof.

Sites: AIC drugs & alcohol.

For sentencing of drug offenders, see site page sentencing.

> Fraud, theft, handling, unlawful possession, burglary especially as in Victoria

version 31 July 2008

FRAUD
Criminal fraud is a general term used by investigators, lawyers and others for numerous criminal offences each separately defined mainly to do with obtaining by deception goods, monies, financial advantages etc. The main offences are referred to below.
Obtain property by deception. Crimes Act s.81 and obtain financial advantage by deception Crimes Act s.82. Dishonesty: R v Todo [2004] VSCA 177; R v Walsh [2002] VSCA 98; R v Salvo [1980] VR 401; R v Brow [1981] VR 783; R v Bonollo [1981] VR 783. Materiality: Williams and Weinberg Property Offences (2nd ed) pp.142-144. Must be causal connection between the deception used and the pecuniary advantage obtained though person deceived and person obtained from need not be same: R v Clarkson [1987] VR 962. Mental element can be deliberate or reckless: Crimes Act s.81(4): 82(2). Most obtain property by deception can alternatively be charged as theft: R v Baruday [1984] VR 685. For deception of corporations, the person deceived does not have to be a natural person; it can be the corporation as distinct legal entity: Macleod v R [2003] HCA 24, (2003) 77 ALJR 104. It is though usually sufficient if the person deceived is a natural person who in the circumstances is acting within the scope of that person's employment with the corporation; but a person who is party to the fraud could not stand as the corporation in this sense or at all: R v Jenkins [2002] VSCA 224, (2002) 6 VR 81. Cheques: Parsons v R (1999) 195 CLR 619. Representation by conduct: Crimes Act ss.81(4), 82(2); R v Benli [1998] 2 VR 157. Statements as to future events only amount to deception if they mis-state present intention: R v Lo Presti [2005] VSCA 259. Extra-territoriality: R v Keech [2002] VSCA 103. Meaning of financial advantage includes paying a debt by giving the creditor a worthless cheque: R v Vasic [2005] VSCA 38. It can in appropriate case be charged as a single continuous offence: DPP v Stark [2006] VSCA 61. Where two or more false representations are laid in one count, it is sufficient to convict if the jury is unanimously satisfied as to any one of them: R v Holmes [2006] VSCA 73; R v Kuff [1962] VR 578.
False accounting. Crimes Act s.83(1). To determine whether a document is required for any accounting purpose, evidence would be expected both of the connection of the documents with the relevant accounts and also as to their requirement for that purposes: R v Heinze [2005] VSCA 124, (2005) 153 A Crim R 380. A merely prudential purpose not enough: R v Jenkins [2002] VSCA 224, (2002) 6 VR 81.
Make & use false document. Crimes Act s.83A; R v Ceylan [2002] VSCA 53; R v Gatzka [2004] VSCA 121.
Accident compensation fraud offences. Motor vehicle accident and WorkCover. Accident Compensation Act
Barristers & solicitors. Legal Practice Act, trust account and other offences.
Estate Agents. Estate Agents Act, trust account (ss.90 & 91) and other offences.
THEFT
Crimes Act Part 1 Division 2. The common law term "larceny" is replaced by "theft".
Crimes Act s.72. "A person steals if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it."
Dishonesty: R v Senese [2004] VSCA 136; R v Salvo [1980] VR 401; R v Brow [1981] VR 783; R v Bonollo [1981] VR 783.
Appropriation. Crimes Act s.73(4). Requires an adverse interference with or usurpation of some right of the owner: R v Roffel [1985] VR 511. Sufficient that it is of any of the rights of the owner: Stein v Henshall [1976] VR 612; W v Woodrow [1988] VR 358. Includes where there has been consent of owner as result of fraud: R v Baruday [1984] VR 685. By majority in Roffel, a taking of possession of property consensual in the true sense is not appropriation; compare as so with former common law: Croton v R (1967) 117 CLR 326
Property. Where prosecution can allege only that a part of an assortment or bulk was stolen and, except perhaps in quite vague terms, cannot particularise which parts or even what proportion, seems a submission that "it is not necessary that the precise objects stolen be identifiable" can be built from the reasoning and cases in Williams and Weinberg Property Offences (2nd ed) pp.15-16. Though concerned with property at common law, there seems nothing in the Crimes Act provisions to displace the presumption that at this point they follow the common law. Note though that unlike with some legislation elsewhere, the Crimes Act lacks provision making proof of "general deficiency" at this point enough.
Property belonging to another. Crimes Act s.71, s.73. Not necessary to prove who the other is: Lodge v Lawton [1978] VR 112. Sometimes Goods Act especially s.22 and s.23 has a part.
On meaning of s.73(12): R v Dardovska [2003] VSCA 4.
Theft and latent ambiguity. There seems to be a submission to the contrary based on the idea of a single continuous offence: Archbold (1995 vol 1) para 1-154.
Doctrine of recent possession: Trainer v R (1906) 4 CLR 126 at 133-135; Bruce v R (1987) 61 ALJR 603; R v Beljajev [1984] VR 657; R v Nguyen (1992) 60 A Crim R 196.
Can in appropriate case be charged as a single continuous offence: DPP v Stark [2006] VSCA 61.
HANDLING
Crimes Act s.88(1). A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods or brings them into Victoria, or dishonestly undertakes or assists in bringing them into Victoria or in their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so.
It has been generally thought that the receiving form is a separate offence but the other forms may be put together.
Goods may be handled as a group in a manner that constitutes a single offence and avoids the latent ambiguity objection.
Theft and handling in alternative: Crimes Act s.88A.
UNLAWFUL POSSESSION
Summary Offences Act s.26. It has been said that the object of such legislation is to provide for the immediate arrest flagrante delicto of suspected persons in possession of or conveying personal property supposed to have been stolen: Moors v Burke (1919) 26 CLR 265; Tatchell v Lovett [1908] VLR 645. According to Moors v Burke, it is actual possession only where “without the necessity of taking any further step, [a person] has the complete present personal physical control of the property to the exclusion of others not acting in concert and ... has that control by having the property in [the person’s] present manual custody, or by having it where [the person] alone has the exclusive right or power to place his [or her] hands on it, and so have manual custody when he [or she] wishes”. See also Sloan v McGowan [1926] VLR 227; Donnelly v Devenish [1926] VLR 235; Pendlebury v Kakouris [1971] VR 177; Rowe v Galvin [1984] VR 350; Kitchen v Cox (1996) 85 A Crim R 32. Reasonable suspicion: Nicholls v Young [1992] 2 VR 209.
BURGLARY
Crimes Act s.76, aggravated s.77; Barker v R (1983) CLR 338; R v Lambourn [2007] VSCA 187; R v Munro [2006] VSCA 94; R v Spero [2006] VSCA 58; R v Taylor [2004] VSCA 189, (2004) 10 VR 19. "Offensive weapon" for aggravated burglary: DPP v Woodward [2006] VSC 299.
FALSE ACCOUNTING
Crimes Act s.83(1); R v Jenkins [2002] VSCA 224, (2002) 6 VR 81.

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page author
Don Just barrister
of Victorian Bar
Melbourne, Victoria, Australia

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