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, (2007) 16 VR 240. 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): Zaim v R
[2011] VSCA 80 R v Galas[2007] VSCA 304, (2007) 18 VR 205; R v Butcher
[1986] VR 43. On comparable South Australian provision:Aruthilakan v R [2003] HCA 74, (2003) 203 ALR 259. For the
defence to murder of self-defence, see Crimes Act s.9AC; Babic v R
[2010] VSCA 198. 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; Babic v R
[2010] VSCA 198. 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; Withers v R
[2010] VSCA 151; 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
negligence 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). The
prosecution is not precluded from pleading alternative or
mutually exclusive negligent acts or omissions; however
the jury must be directed of the need in order to convict
to be unanimous about at least one of the forms: Wells v R (No 2) [2010] VSCA 294; R v Beach (1994) 75 A
Crim R 447.
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, (2008) 191 A Crim R 81;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, (2006) 165 A Crim R 524.
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.
Intentionally causing another person to be infected with
very serious disease: Crimes Act s.19A: Neal v R
[2011] VSCA 172.
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).
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 very 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 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). The effect of the
statutory provisions is that actual belief that the
person was not consenting or might not be consenting must
be proved for guilt; whether such a claimed belief would
be reasonable is merely a matter to be taken into account
in considering whether there was actual belief: Wilson v R
[2011] VSCA 328; 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.
Indecent assault is referred to by Crimes Act s.39. To
constitute an indecent assault, the act must be
'indecent', as unbecoming or offensive to common
proprietary, an affront to modesty or offending the
ordinary modesty of the average person: Sabet v R
[2011] VSCA 124. 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, (2002) 5 VR 243. It is questionable whether
this is so with the current s.39 and in any event
unlikely often to matter.
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, (2005) 153 A Crim R 324. 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. It is not sufficient to prove three acts
committed in one episode; there needs to be clear
separation in time or circumstance: Tognolini v R
[2011] VSCA 113. 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: CRR v R
[2011] VSCA 142; REE v R
[2010] VSCA 124; R v SLJ
[2010] VSCA 16, (2010) 24 VR 372. ; 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, (2002) 4 VR 355.
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 s.66 and Criminal Procedure Act s.377: 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, (2009) 194 A Crim R 57;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
evidence of specialised opinion concerning delay and
other matters: Criminal Procedure Act s.388.
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); PT v R [2011]
VSCA 43; 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 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 now 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 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
ss.341-352; 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.
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
ss.366-368. Under previous legislation known as V.A.T.E
or VATE: Saenz v R
[2011] VSCA 154; 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, (2009) 193 A Crim R 202; R v LRG
[2006] VSCA 288, ( 2006) 16 VR 288. VATE recording is not
an exhibit and is not to go into jury room: R v Lyne
[2003] VSCA 118, (2003) 140 A Crim R 522; Gately v R
[2007] HCA 55, (2007) 232 CLR 208.
This page is www.justd.com/notes2.htm
page author
Don
Just barrister of Victorian
Bar Melbourne,
Victoria, Australia