Notes on criminal law & process 1

Notes on criminal law and process 1
Victoria Australia

Don Just barrister Melbourne

this page crim law and process notes 1

notes 2

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. 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. 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.

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; 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 Withers [2009] VSCA 306; R v Lam [2008] VSCA 109; 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; Crimes Act s.375; (trial); Criminal Procedure Act s.6 (summary hearing).

> Proving a crime (1): evidence, specificity and particularity, burden, standard

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 2008.

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 Australian Char [1995] VICSC 168, [1999] 3 VR 834; R v Magistrates' Court at Heidelberg [1976] VR 680. 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 otherwise dismissal.

Standard of proof

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] HCA 52, (1976) 136 CLR 62; R v Cavkic [2009] VSCA 43. 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] HCA 66, (1985) 159 CLR 507; R v SAB [2008] VSCA 150; R v KDY [2008] VSCA 104; R v Brdarovski [2006] VSCA 231, (2006) 166 A Crim R 366; R v Yusuf (No 2) [2006] VSCA 117; R v Lapuse [1964] VR 43.

> Proving a crime (2): circumstantial and inference, wilful blindness, presumption of regularity, handwriting

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 hypotheses (possible explanations) 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. 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. Expert opinion as to financial betterment: R v Ferguson [2009] VSCA 198.

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; Hardess v Beaumont [1953] VLR 315. 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.

Handwriting

Evidence Act (Miscellaneous Provisions) Act 1958 s.148; Adami v R [1959] HCA 70, (1959) 108 CLR 605; R v Devenish [1969] VR 73; R v Browne-Kerr [1990] VR 78.

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; 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). 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, 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 in 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; 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): R v Best [1998] 4 VR 603. For some years a troublesome problem was whether simply nominating a "first occasion" avoided latent duplicity: see R v NVD [2007] VSCA 230; DPP v Judge Lewis. By R v DWB [2008] VSCA 223 and R v Osborne [2009] VSCA 88, the technique of nominating a "first occasion" will not overcome the difficulties identified in S v R unless there is some way that the specific act that constitutes the offence charged in any particular count can be identified and distinguished from all other similar conduct.

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.

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 really are ones of forestalling or dealing with double jeopardy.

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 2008 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 2008 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.

Aural (voice) identification and identification of objects eg guns: R v Ong [2007] VSCA 206; 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 directions on risks of identification: Evidence Act 2008 s.116; Domican v R [1992] HCA 13, (1992) 173 CLR 555; 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 De Frutos [2008] VSCA 55; R v Spero [2006] VSCA 58, (2006) 13 VR 225.

Complicity

Crimes Act s.323, s.324. Clayton v R [2006] HCA 58; McAuliffe v R [1995] HCA 37, (1995) 183 CLR 108; Giorgianni v R [1985] HCA 29, (1985) 156 CLR 473; Johns v R [1980] HCA 3, (1980) 143 CLR 108; R v Guthrie and Nuttal [2006] VSCA 192; R v Hartwick [2005] VSCA 264, (2005) 14 VR 125; R v Makin [2004] VSCA 85, (2004) 8 VR 262.

Parties act in "joint criminal enterprise" or "common purpose" (to use terminology often favoured in more recent cases) when the crime they commit is within the scope of an understanding or arrangement between them. All such parties are liable for the offending. 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. 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).

An aider and abettor is present whilst aware a crime is being committed and 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.

For federal offences, Criminal Code s.11.2.

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.

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, 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 hypothesis (possible explanation) 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.

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. The prosecution must prove the alibi false beyond reasonable doubt: R v Merrett [2007] VSCA 1, (2007) 14 VR 39; R v Chan [1998] VICSC 250.

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: 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] HCA 20, (1971) 124 CLR 107; R v Tran [2007] VSCA 19; R v Williamson [2000] VSCA 5.

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.

In rare circumstances, there is a defence of duress: 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.

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; 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.

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