Notes on criminal law & process 2

Notes on criminal law and process 2
Victoria Australia

Don Just barrister Melbourne

crim law & process notes 1

this page notes 2

Murder: Crimes Act s.3. Intention to kill or inflict really serious injury: Meyers v R [1997] HCA 43, (1997) 71 ALJR 1488; Ryan v R [1967] HCA 2, (1967) 121 CLR 205; Royall v R [1991] HCA 27, (1991) 172 CLR 378. Recklessness as to causing death or really serious injury: R v Crabbe [1985] HCA 22, (1985) 156 CLR 464. However the courts are reluctant to permit reckless murder to be left to a jury: R v Barrett [2007] VSCA 95. For attempted murder, intent to kill must be proved: Alister v R [1984] HCA 85, (1984) 154 CLR 404; Knight v R [1992] HCA 56, (1992) 175 CLR 495. Crimes Act s.3A (constructive murder): R v Galas [2007] VSCA 304; R v Butcher [1986] VR 43. On comparable South Australian provision: Aruthilakan v R [2003] HCA 74. For the defence to murder of self-defence, see Crimes Act s.9AC. There are also defences of duress, family violence and sudden or extraordinary emergency: Crimes Act s.9AG, s.9AH, s.9AI.

Defensive homicide: Crimes Act s.9AD. In essence murder in circumstances of excessive self-defence. There are defences of duress, family violence and sudden or extraordinary emergency: Crimes Act ss.9AG, AH, 9AI.

Manslaughter: Crimes Act s.5. Manslaughter due to unlawful and dangerous act: Wilson v R [1992] HCA 31, (1992) 174 CLR 313; R v Holzer [1968] VR 481. Manslaughter due to criminal negligence: R v Osip [2000] VSCA 237, (2000) 2 VR 595; R v Nydam [1977] VR 430. For the defence of self-defence to manslaughter: Crimes Act s.9AE. There are also defences of duress, family violence and sudden or extraordinary emergency: Crimes Act ss.9AG, 9AH, 9AI.

Culpable driving causing death: Crimes Act s.318; R v De'Zilwa [2002] VSCA 158, (2002) 5 VR 408; R v Wright [1999] VSCA 145; R v Franks [1998] VSCA 100, [1999] 1 VR 518.
Where the culpable driving alleged is that specified in s.318(2)(b) of gross negligence, it is necessary that the prosecution establish a causal link between the effects of the alcohol upon the driver and the death of the victim: R v Dickinson [2007] VSCA 111; R v Heron [2003] VSCA 76. It is also necessary that the trial judge identify to the jury the conduct of the accused upon which the Crown relies to prove the offence: R v Poduska [2008] VSCA 147.
Where the culpable driving alleged is that specified in s.318(2)(c) of driving under the influence of alcohol so as to be incapable of having proper control of the motor vehicle, it is not necessary that the prosecution establish a causal link between the effects of the alcohol upon the driver and the death of the victim: R v Ciantar [2006] VSCA 263, (2006) 16 VR 26; R v Feketa (1982) 10 A Crim R 287.
By s.321(3) presentment must specify the form of culpability within the meaning of s.318(2).

Dangerous driving causing death: Crimes Act s.319; R v De Montero [2009] VSCA 255.

Crimes Act sections 15-32.

The defence of self-defence: Zecevic v R [1987] HCA 26, (1987) 162 CLR 645 per Wilson, Dawson and Toohey JJ: "The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal". The question whether the belief was proved not to have been based on reasonable grounds is to be determined not by what a reasonable person would have believed but by what the accused person might reasonably have believed in all the circumstances in which he found himself. See also R v Hendy [2008] VSCA 231; R v Calafati [2005] VSCA 93; R v Osip [2000] VSCA 237, (2000) 2 VR 595.

The defence of defending another: R v Lovett [2006] VSCA 5; R v Portelli [2004] VSCA 168, (2004) 10 VR 259.

Causing serious injury intentionally: Crimes Act s.16. The intention must be to cause serious injury: DPP v Fevaleaki [2006] VSCA 212; R v Westaway (1991) 52 A Crim R 336.

Causing serious injury recklessly. Crimes Act s.17. The recklessness relies on common law meaning: R v Crabbe [1985] HCA 22, (1985) 156 CLR 464; R v Campbell [1995] VSCA 186, [1997] 2 VR 576.

Causing injury intentionally or recklessly: Crimes Act s.18. These are separate offences: R v His Honour Judge Hassett (1994) 76 A Crim R 19; DPP v Williams [1993] 1 VR 238.

Threats to kill (Crimes Act s.20) and threats to inflict serious injury (Crimes Act s.21): R v Dixon-Jenkins (1985) 14 A Crim R 372. Extortion with threat to kill (Crimes Act s.27) and extortion with threat to destroy property etc (Crimes Act s.28).

Stalking: Crimes Act s.21A; R v Anders [2009] VSCA 7; R v Hoang [2007] VSCA 117, (2007) 16 VR 369; Nadarajamoorthy v Moreton [2003] VSC 283; Berlyn v Brouskos [2002] VSC 377; DPP v Sutcliffe [2001] VSC 43.

Reckless endangerment. Conduct endangering life (Crimes Act s.22) or conduct endangering serious injury (Crimes Act s.23): R v Marijancevic [2009] VSCA 135; R v Abdul-Rasool [2008] VSCA 13, (2008) 18 VR 586; R v Toms [2006] VSCA 101; R v Wilson [2005] VSCA 78.

Negligently causing serious injury: Crimes Act s.24.

Common assault, an offence at common law: R v Patton [1998] 1 VR 7, recognised by Crimes Act s.320.

Affray, an offence at common law: R v King [2007] VSCA 263; DPP v Johnston [2004] VSCA 150, recognised by Crimes Act s.320.

Crimes Act sections 35-62. The various amendments made by Act 8 of 1991 commenced 5.8.91 and by Act 81 of 1991 commenced 1.1.92. A previous major set of amendments was made by Act 9509 of 1980 commenced 1.3.81. There have also been changes to the lists of indictable offences which may be heard summarily. With alleged old offences this can cause complexity and confusion; see for example R v DD [2002] VSCA 112 (presentment with wrong indecent assault section); R v Ray [2000] VSC 430 (no summary jurisdiction for pre 1980 offence of indecent assault upon a male).

Various of the offences defined have elements to do with sexual penetration as to which see Crimes Act s.35.

Various of the offences defined, including rape, have elements to do with lack of consent. Consent means free agreement: Crimes Act s.36. This is an inclusive meaning of consent.The circumstance that "the person is incapable of understanding the sexual nature of the act" set out in s.36(e) requires in a case of alleged rape proof that the alleged victim had not sufficient knowledge or understanding to comprehend that what was proposed to be done was the alleged physical fact of penetration or that the act of penetration proposed was one of sexual connexion as distinct from an act of a totally different character: R v Eastwood [1998] VSCA 42, 114 A Crim R 448. Section 36 also is a listing of circumstances deemed to be non-consent: see s.37AAA(b) and (c). Also, the fact that a person did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place is enough to show that the act took place without that person's free agreement: s.37AAA(d). There is listing of circumstances deemed insufficient to be free agreement by s.37AAA(e). Further on jury directions on lack of consent: Crimes Act s.37; R v Salih [2005] VSCA 282, (2005) 160 A Crim R 310; R v Yusuf [2005] VSCA 69, (2005) 11 VR 49.

The offences defined to have elements to do with lack of consent also have an element to do with awareness on the part of the accused that the person is not consenting or might not be consenting (explained in Worsnop v R [2010] VSCA 188) or, where the latest definitions are applicable, not giving any thought to whether the person is not consenting or might not be consenting. Jury directions on this element concern the jury considering any evidence of belief and its reasonableness in all the circumstances: Crimes Act s.37AA. Awareness of any of the circumstances specified in s.36 goes to the jury consideration of reasonableness of believed consent: s.37AA(b)(i). Reasonableness of believed consent is a consideration not an element: R v Zilm [2006] VSCA 72, (2006) 14 VR 1; R v Munday [2003] VSCA 189, (2003) 7 VR 42.

Various of the offences have penetration as an element, on jury directions that this be intentional: R v AJS [2005] VSCA 288, (2005) 12 VR 563.

Rape is defined basically by Crimes Act s.38.

Indecent assault is referred to by Crimes Act s.39. It has been held that some earlier indecent assault provisions did not establish a statutory offence of indecent assault but merely drew upon the common law offence of common assault and how it was to be dealt with in circumstances of indecency: R v DD [2002] VSCA 112. It is questionable whether this is so with the current s.39 and in any event unlikely often to matter.

Crimes Act s.44 defines incest.

Crimes Act sections 45 to 49A define various sexual offences against children. Sexual penetration of a child is defined by Crimes Act s.45, see further R v Deblasis [2007] VSCA 297; R v Mark [2006] VSCA 251. Indecent act with child is defined by Crimes Act s.47, see further R v ADJ [2005] VSCA 102. Crimes Act s.47A(1) defines an offence of persistent sexual abuse of child under the age of 16 (an earlier form of the legislation called the offence maintaining a sexual relationship with a child under 16 years). It requires proof of three occasions. By s.47A(3), for the 47A(1) offence it is not necessary the prosecution prove the act with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted by that act instead of an offence against sub-section (1). For s.47A, general evidence of on-going conduct is not sufficient to prove occasions: REE v R [2010] VSCA 124; R v SLJ [2010] VSCA 16; R v Sobevski [2004] VSCA 216, (2004) 150 A Crim R 355. It is not open to proceed upon both a s.47A count and counts for individual occasions relied upon in its support: R v RNT [2009] VSCA 137; R v GJB [2002] VSCA 54.

Child pornography: Crimes Act ss.67A-70AA which expressly take some of their meaning from Classification (Publications, Films and Computer Games) Act (Cth).

The admissibility and jury directions for evidence of recent complaint by a sexual complainant formerly was subject of many common law cases. These are now outdated by the general provisions Evidence Act 2008 s.66 and Criminal Procedure Act s.377 (see Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 s.50); GBF v R [2010] VSCA 135.

Delay in complaining is a fact the jury is to be directed to take into account in evaluating a complainant’s testimony and in determining whether to act on it, providing the issue has been raised, and there is reason to do so to ensure a fair trial: Crimes Act ss.61(3); R v BDX [2009] VSCA 28; R v DD [2007] VSCA 317, (2007) 19 VR 143; R v WEB [2003] VSCA 205, (2003) 7 VR 200. This often is known as a "Kilby direction" after Kilby v R [1973] HCA 30, (1973) 129 CLR 460 though in that case there were no statutory provisions of the kind now existing. It will often be unnecessary to give the warning in a case of complainants who were children at the time of the alleged offences: R v Wang [2007] VSCA 296. If the issue has been raised, the judge must inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it: Crimes Act s.61(1)(b). An earlier form of this provision was considered in Crofts v R [1996] HCA 22, (1996) 186 CLR 427. Provision for evidnce of specialised opinion concerning delay and other matters: Criminal Procedure Act 2009 s.388 (see Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 s.50).

If delay in making complaint or in prosecution has caused significant forensic disadvantage to the accused, directions to the jury, if sought, are under Crimes Act s.61(1A); R v IAB [2009] VSCA 229; R v Garbutt [2008] VSCA 170; R v Taylor [2008] VSCA 57. The section now precludes the warning going to the extent of danger or unsafeness in convicting. See also Evidence Act 2008 s.165B which extends to delay in prosecution for any kind of criminal offence for which there is a jury. Some cases on forensic disadvantage caused by delay concerning trials preceding the commencement of the current sections are Crampton v R [2000] HCA 60, (2000) 206 CLR 161; Longman v R [1989] HCA 60, (1989) 168 CLR 79; R v RW [2008] VSCA 79; R v Goss [2007] VSCA 116; R v KJ [2005] VSCA 153, (2005) 154 A Crim R 139; R v GTN [2003] VSCA 3, (2003) 6 VR 150.

Sexual complainants as a class are not unreliable witnesses and the necessity for warning against unreliability of complainants in sexual cases is abolished: Crimes Act s.61(1). For the pre-abolition position concerning sexual complainants, see Kelleher v R [1974] HCA 48, (1974) 131 CLR 534. Where appropriate and subject to s.61 as amended, there is to be a "Longman warning", or if appropriate some variant of it, against a particular unreliable witness and direction on supporting evidence or its lack: Longman v R [1989] HCA 60, (1989) 168 CLR 79; Dyers v R [2002] HCA 45, (2002) 210 CLR 285; Doggett v R [2001] HCA 46, (2001) 208 CLR 343; R v IAB [2009] VSCA 229; R v Garbutt [2008] VSCA 170; R v Taylor [2008] VSCA 57, (2008) 18 VR 613; R v PZG [2007] VSCA 54; R v KJ [2005] VSCA 153, (2005) 154 A Crim R 139. Recent complaint is not supporting evidence of this kind: R v Meyer [2007] VSCA 115. By the form of s.61 more recently in force the warning must not be to the extent that it would be dangerous to convict on that evidence alone. Where long delay is a factor, the jury is to be warned of the effect of delay upon memory of the witness: R v GTN [2003] VSCA 38, (2003) 6 VR 150.

In Victorian trial courts in cases where there has been no unreliable witness warning given for a particular complainant in a sexual case, there sometimes still are being given directions that there is evidence capable of corroborating the complainant, notwithstanding that directions on corroboration or its absence originally had purpose only as an integral part of the unreliable witness warning. In R v Van Doorn [2004] VSCA 65 where this had occurred but was not of itself was a ground of appeal, it was said that as a matter of law, there was no requirement for it. The cases on distress of complainant evidence (see below) do treat such evidence as capable of amounting to corroboration regardless of unreliable witness warning, but all were in context where it was not in issue that in the particular cases, if receivable at all and subject to proper directions, that would be the status of the evidence (in R v Mathe [2003] VSCA 165 a ground of appeal raising the issue apparently was not persisted).

Evidence of distress of complainant independent of the complaint is admissible but subject to directions that generally it carries little weight and juries ordinarily are warned of its inherent limitations: R v Rogers [2008] VSCA 125; R v Meyer [2007] VSCA 115; R v Brdarovski [2006] VSCA 231, (2006) 166 A Crim R 366; R v Demiri [2006] VSCA 64; R v Mathe [2003] VSCA 165; R v Flannery [1969] VR 586.

Evidence of prior sexual conduct of complainant generally is permitted only by leave available for limited purposes: Criminal Procedure Act 2009 ss.341-352 (see Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 s.50); and though on previous provisions R v ERJ [2010] VSCA 61 and R v Sadler [2008] VSCA 198, (2008) 20 VR 69. In R v Storey and Georgiou, Ct Appeal (Vic) 17 August 1977, evidence of prior virginity of a complainant was held admissible as going to lack of consent.

Confidential communications to medical practitioner or counsellor: Evidence (Miscellaneous Provisions) Act 1958 sections 32AB-32G.

For alleged sexual offences, there are special provisions for persons under 18 or with a cognitive impairment for the child giving including use of past video-recorded interview: Criminal Procedure Act 2009 (see Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009). Under previous legislation known as V.A.T.E or VATE; R v MAG [2005] VSCA 47; R v Knigge [2003] VSCA 94, (2003) 6 VR 181; R v Lewis [2002] VSCA 200; R v BAH [2002] VSCA 164, (2002) 5 VR 517; R v NRC [1999] VSCA 184, [1999] 3 VR 537; on the need to attest to the truthfulness of the contents of the recordings, see R v Anders [2009] VSCA 7; R v LRG [2006] VSCA 288; VATE recording not an exhibit and is not to go with jury into jury room: R v Lyne [2003] VSCA 118; Gately v R [2007] HCA 55.