> HOMICIDE AND OTHER CAUSING DEATH
version 23 August 2020
Crimes Act s.3 recognises the crime of murder and provides penalty but the definition of basic murder for Victoria is largely from common law.
There must be a death. For the purposes of the law of Victoria, a person has died when there has occurred - (a) irreversible cessation of circulation of blood in the body of the person; or (b) irreversible cessation of all function of the brain of the person: Human Tissue Act s.41. It is not an essential element that there be an identified body.
The victim must be a human being, i.e. fully born in a living state: R v Hutty  VicLawRp 20,  VLR 338.
There must be an act or omission. The act typically is some form of physical harm especially by weapon, body contact, article, force, substance or course of substance. The act may be threatened harm: Royall v R  HCA 27, (1991) 172 CLR 378. In principle it seems the act may be any words, gesture, other encouragement, setting trap, giving false information or of any other positive form, but of these it is difficult to find actual past court cases. For omission, in addition a duty of care must be shown as for manslaughter by negligence, see below. Murder cases based on omission are rare; for some from outside Victoria see mentions in R v Taber  NSWSC 1239, and for a recognition of the possibility, R v Lawford  SASC 4247, (1993) 69 A Crim R 115.
The act or omission must cause the death which means substantial and operative cause; it is not necessary that the act or omission be the sole or even the principal cause: Swan v R  HCA 11 (victim reduced to poor mental and physical condition by attack of accused causing victim's son to decide for later injury to victim not to undertake surgery reasonably expected to save life); Royall v R  HCA 27, (1991) 172 CLR 378 (threatened harm, victim fright, attempted self-preservation); Panesar v R  VSCA 79 (on dangerous driving causing death which has same causation element); Robb v R  VSCA 125 (on manslaughter which has same causation element); Baker v R  VSCA 226; R v Withers  VSCA 306.
There must be voluntariness, that is the act or omission must be conscious, voluntary and deliberate; it cannot be an unwilled act: Koani v R  HCA 42 (possible scenario of gun discharged without deliberately pulling trigger or releasing hammer); R v Herodotou  VSCA 253; R v Schaeffer  VSCA 306, (2005) 13 VR 337. The notion of deliberateness is sometimes described as "general" or "basic" intent.
There must be specific intent coinciding with the act or omission. Two of the forms of specific intent are intention to kill and intention to inflict really serious injury: Meyers v R  HCA 43, (1997) 71 ALJR 1488; Baker v R  VSCA 226. The two further forms of specific intent are recklessness as to causing death and recklessness as to causing really serious injury. Recklessness requires that the accused foresees the probable consequences of the act; "probable" means likely to happen: R v Crabbe  HCA 22, (1985) 156 CLR 464; DPP Reference No1 of 2019  VSCA 181 (on recklessly causing serious injury which has same recklessness element). The courts are reluctant to permit reckless murder to be left to a jury: R v Barrett  VSCA 95, (2007) 16 VR 240. But a case can proceed so: e.g. Hegarty v R  VSCA 252. (For attempted murder, intent to kill must be proved: Alister v R  HCA 85, (1984) 154 CLR 404; R v Nguyen  HCA 38, (2010) 242 CLR 491.) The expressions really serious injury and grievous bodily harm are interchangeable: Pasznyk v R  VSCA 87. The four forms of specific intent are occasionally as a group still referred to as malice aforethought though this draws on language from past era.
The act or omission must have been acting not in reasonable self-defence, defence of others or of property; not under duress; not in sudden or extraordinary emergency; and not in reasonable crime prevention or arrest: see notes1.
By Voluntary Assisted Dying Act the act or omission must have been of a kind not protected under that Act. This legislation concerns euthanasia, though it does not use the term.
The act or omission must have been not the crime of infanticide: R v Hutty  VicLawRp 48,  VLR 338.
Unintentional killing in the course or furtherance of a crime of violence: Crimes Act s.3A. Sometimes referred to as statutory murder or constructive murder. The section defines some alternative elements for murder. It gives an alternative manner of proving murder rather than creating a separate offence of murder: Duca v R  VSCA 209. It applies to a person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more. Some earlier cases were DPP v Perry  VSCA 152; Zaim v R  VSCA 80; R v Galas  VSCA 304, (2007) 18 VR 205; R v Butcher  VicRp 4,  VR 43. See also R v Ryan and Walker  VicRp 76,  VR 553 which concerned a related felony murder rule at common law now replaced.
Crimes Act s.6. Is a woman causing death of her child under in circumstances that otherwise would constitute murder where at the time of the act or omission, the balance of her mind is disturbed because of her not having fully recovered from the effect of giving birth to that child within the preceding 2 years; or a disorder consequent on her giving birth to that child within the preceding 2 years. An example though legally significant only on sentencing point is R v Guode  HCA 8.
Crimes Act s.5.
The act or omission elements are as for murder, including the requirement that the conduct be conscious, voluntary and deliberate. There may be by statute some slight extension of causation, see below. Otherwise, the distinction from murder is that instead of specific intent, it is enough for manslaughter that there be breach of objective standards, either that the act was unlawful and dangerous or that it was criminally negligent.
Manslaughter due to unlawful and dangerous act: Burns v R  HCA 35, (2012) 246 CLR 334; Withers v R (No 2)  VSCA 151. There is a causation provision concerning single punch or strike to any part of a person's head or neck that perhaps in application would occasionally extend that of general principles of causation: Crimes Act s.4A(4); Esmaili v The Queen  VSCA 63) "Unlawful" means contrary to the criminal law. "Dangerous" include a single punch or strike delivered to any part of a person's head or neck which itself causes an injury to the head or neck: Crimes Act s.4A. Otherwise "dangerous" means that circumstances be such that a reasonable person in the accused's position, performing the very act which the accused performed, would have realised exposed the victim to an appreciable risk of serious injury. It is observed in Withers (No2) that in the reported cases the most common examples of unlawful and dangerous act arise out of various forms of assault with examples also found that arose out of attempted assault, attempted robbery, unlawful wounding, burglary, unlawful administration of drugs, arson, [unlawful] abortion, and discharging a firearm in a public place.
Manslaughter due to criminal negligence. May be by act of which some examples are R v Osip  VSCA 237, (2000) 2 VR 595; R v Nydam  VicRp 50,  VR 430. Or may be by omission of which some examples are Reid v R  VSCA 234, (2010) 29 VR 446; R v Clarke  VicRp 84,  VR 645; R v Russell  VicRp 7,  VLR 59 (in the case one of possible bases for guilt), see also the unsuccessful prosecution in R v Rao  ACTSC 132 later in name of victim Joe Cinque subject of popular literature and cinema, associated with R v Singh  ACTSC 32 (decided on different basis). For manslaughter due to criminal negligence, negligence is breach of a duty of care which falls so greatly short of the standard of care which a reasonable person would exercise in the circumstances, and involves such a high risk of causing death or really serious injury to the deceased, as to merit criminal punishment: Bouch v R  VSCA 86; R v Nydam above. The existence of a duty of care is limited; without being an exhaustive list, it is owed to another from a statute imposing the duty, from a certain status relationship, from a contract, or from the voluntary assumption of the care of another so secluding a helpless person as to prevent others from rendering aid: Burns v R  HCA 35, (2012) 246 CLR 334 (French CJ). The duty also arises from deliberate wrongful act placing another in peril or in danger, and from persons living together as domestic partners when one is rendered helpless through illness or injury: Reid v R above.
The accused must have been acting not in reasonable self-defence, defence of others or of property; not under duress; not in sudden or extraordinary emergency; and not in reasonable crime prevention or arrest: see notes1. In probably all the circumstances that these issues could arise in the context of manslaughter, it would be as negation of the unlawfulness element of manslaughter due to unlawful and dangerous act.
Another basis for manslaughter is for the survivor of a suicide pact who kills deceased party: Crimes Act s.6B.
Industrial or workplace manslaughter has always existed at law in Victoria as a factual example of the crime of manslaughter due to criminal negligence. Though in the past rarely charged, it is clear enough that by one or more of the categories of duty of care, the crime can be committed in industrial circumstances by act or omission of a natural person including as employer, also by a corporation through act or omission by a natural person who is a directing mind and will: DPP v Downer EDI Pty Ltd  VSCA 287 endnote; R v A C Hatrick Chemicals  VicSC 653, (1995) 152 A Crim R 384 a trial ruling considered to limited extent by Court of Appeal as DPP Reference No 1 of 1996  VSC 47, (1998) 3 VR 352. Since 1 July 2020, there is also a statutory crime of workplace manslaughter with some difference of definition: Occupational Health and Safety Act ss.39A-39G.
Crimes Act s.5A. Killing a child who is under the age of 6 years in circumstances that otherwise would constitute manslaughter. DPP v Woodford  VSCA 312.
Culpable driving causing death
Crimes Act s.318. Consistently with general principles of actus reus, the relevant driving must be voluntary in the legal sense: Jiminez v R  HCA 14, (1992) 173 CLR 572 (not voluntary, driver fell asleep and there was little in the evidence to support a finding that he had felt drowsy or that he had reason to believe that he was tired).
The culpable driving specified in s.318(2)(a) is recklessly, that is to say, a person consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his (or her) driving: R v Pasznyk  VSCA 87, (2014) 43 VR 169.
The culpable driving specified in s.318(2)(b) is gross negligence: Bouch v R  VSCA 86; Dunkley-Price v R  VSCA 310, (2015) 73 MVR 450; R v De'Zilwa  VSCA 158, (2002) 5 VR 408; R v Shields  VicRp 68,  VR 717. It is necessary that the prosecution establish a causal link between the gross negligence and the death of the victim: R v Dickinson  VSCA 111. 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 crime: R v Poduska  VSCA 147. By s.318(2A) without limiting subsection (2)(b) negligence may be established by proving that (a) a person drove a motor vehicle when fatigued to such an extent that he or she knew, or ought to have known, that there was an appreciable risk of him or her falling asleep while driving or of losing control of the vehicle; and (b) by so driving the motor vehicle the person failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case. It is questionable whether s.318(2A) on strict analysis adds to the law otherwise existing; possibly it has value to safeguard against erroneous understanding of the Jiminez case above.
The culpable driving specified in s.318(2)(c) is 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  VSCA 263, (2006) 16 VR 26; R v Feketa  VicSC 198, (1982) 10 A Crim R 287.
The culpable driving specified in s.318(2)(d) is under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle: DPP v Trueman  VSCA 24 (sentence); Brayshaw v R  VSCA 233 (sentence).
By s.321(3) indictment 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)  VSCA 294; R v Beach  VicSC 627, (1994) 75 A Crim R 447.
Dangerous driving causing death
Crimes Act s.319; King v R  HCA 24, (2012) 245 CLR 588.
Stephens v R  VSCA 121, (2016) 50 VR 740. Driving will be dangerous where there is ‘some serious breach of the proper conduct of a vehicle so as to be in reality and not speculatively, potentially dangerous to others.’ The driving must have some feature which subjects the public ‘to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by a person who may on occasion drive with less than due care and attention.’ A Court’s assessment of the dangerousness of the driving will be informed by the extent of the risk which the driving created, as well as by the extent of potential harm should the risk materialise
Panesar v R  VSCA 79 (causation and voluntariness issues).
Arson causing death
By Crimes Act s.197A, the crime is arson as defined in section 197 thereby causing the death of another person. On arson, see further this site notes3.
R v Chambers  VSCA 34, said to be first case of the crime sentenced, refers to creation of the crime in 1997.
The crime does not require proof of intention or recklessness as to causing death, as murder does, and thus cannot be sentenced on the basis of intention or recklessness as to causing death (or any other mental element of murder). A case with evidence arguably sufficient for murder would be expected to be charged as such, as for example R v Smith  VSCA 219 (murder alleging fire as the method).
The crime does not require proof of unlawful and dangerous act or breach of objective standard as required for manslaughter. Yet since it has a higher maximum sentence than manslaughter, it would be expected to be charged instead of manslaughter where both were equally supported by evidence.
Another example is DPP v Sokaluk  VSCA 48, as legal precedent of minor value mainly as showing sentencing practice but its facts of much public interest, subject of book: Chloe Hooper The Arsonist, 2018.
There is a lesser crime of arson in the form of by fire intentionally destroying or damaging property or doing so endangering life, amongst various crimes defined in Crimes Act s.197. See also intentionally or recklessly causing a bushfire: Crimes Act s.201A.
Failure to control dangerous, menacing or restricted breed dog that kills person
Crimes Act sections 319A-319B.
OTHER NON-SEXUAL CRIMES AGAINST THE PERSON
5 July 2020
Crimes Act sections 15-32.
Most of the crimes below have an element of unlawfulness or being without lawful excuse. The accused must have been acting not in reasonable self-defence, defence of others or of property; not under duress; not in sudden or extraordinary emergency; not in reasonable crime prevention or arrest and not with consent: see notes1.
Most of the crimes below have an element of causation as with on murder, see above.
Causation is by act. In principle, as with murder or manslaughter, it seems some of the crimes also could be committed by omission though such prosecutions seem not to have occurred.
The act (or omission) must be conscious, voluntary and deliberate, as with murder, see above, also Marijancevic v R  VSCA 135, (2009) 22 VR 576.
Many of the crimes require as an element that there be an injury which is defined in Crimes Act s.15. It means (a) physical injury; or (b) harm to mental health - whether temporary or permanent. Physical injury includes unconsciousness, disfigurement, substantial pain, infection with a disease and an impairment of bodily function. Harm to mental health includes psychological harm but does not include an emotional reaction such as distress, grief, fear or anger unless it results in psychological harm.
Some of the crimes require as an element that the injury be serious which means (a) an injury (including the cumulative effect of more than one injury) that - (i) endangers life; or (ii) is substantial and protracted; or (b) the destruction, other than in the course of a medical procedure, of the foetus of a pregnant woman whether or not the woman suffers any other harm: Crimes Act s.15. Limb (i) directs attention to the danger created by the injury at the time it is sustained: Sargeant v R  VSCA 45.
Causing serious injury intentionally in circumstances of gross violence
Crimes Act s.15A; for an example Johns v R  VSCA 135. The crime includes the elements of causing serious injury intentionally as below. In addition it requires an element of circumstances of gross violence which are defined by s.15A (2). They concern matters such as certain planning in advance, acting in company, acting in agreement, planning and use of offensive weapon or firearm and certain circumstances where the other person is incapacitated. The crime has the same maximum sentence as causing serious injury intentionally but there are different bail and sentencing considerations.
Causing serious injury intentionally
Crimes Act s.16. The intention must be to cause serious injury though not necessarily the specific serious injury which has occurred: DPP v Fevaleaki  VSCA 212, (2006) 165 A Crim R 524; R v Westaway  VicSC 143, (1991) 52 A Crim R 336; James v R  HCA 6, (2014) 253 CLR 475.
Causing serious injury recklessly in circumstances of gross violence
Crimes Act s.15B. The crime includes the elements of causing serious injury recklessly as below. In addition it requires an element of circumstances of gross violence defined by s.15B (2) which is analogous to those for the s.15A crime, see above. The crime has the same maximum sentence as causing injury recklessly but there are different bail and sentencing considerations..
Causing serious injury recklessly
Crimes Act s.17. The recklessness relies on common law meaning as for murder: DPP Reference No1 of 2019  VSCA 181; Ignatova v R  VSCA 263; R v Campbell  VICSC 186,  2 VR 576.
Causing injury intentionally
Crimes Act s.18.
Causing injury recklessly
As with causing injury intentionally, this crime is from Crimes Act s.18. It has been interpreted that the section creates separate crimes: R v His Honour Judge Hassett  VicSC 765, (1994) 76 A Crim R 19.
Negligently causing serious injury
Crimes Act s.24. Consistently with other crimes of negligence against the person, requires an act or omission by a person with a duty of care which greatly falls short of the standard of care which a reasonable person would have exercised and a high degree of risk that serious injury would follow: Aston v R  VSCA 225; Harrison v R  VSCA 349, (2015) 49 VR 619 ; Gorladenchearau v R  VSCA 432, (2011) 34 VR 149. Cases typically concern driving of a motor vehicle. For parent and child examples see DPP v Weston  VSCA 243 (2015) 48 VR 413; Mok v R  VSCA 247.
An indictable crime at common law: R v Patton  VicSC 54 (notes only);  1 VR 7, recognised by Crimes Act s.320.
Some lower level assault crimes
Summary Offences Act includes s.23 assault, s24 aggravated assault, s.51 assaulting, etc. emergency workers, custodial officers or local authority staff on duty, s.51A assaulting registered health practitioners. These are primarily within Magistrates' Court jurisdiction.
Administering certain substances
Crimes Act s.19.
Threat to kill
Crimes Act s.20; R v Dixon-Jenkins  VicSC 45, (1985) 14 A Crim R 372.
Threat to inflict serious injury
Crimes Act s.21; R v Dixon-Jenkins  VicSC 45, (1985) 14 A Crim R 372.
Extortion with threat to kill
Crimes Act s.27.
Extortion with threat to destroy property etc
Crimes Act s.28.
Conduct endangering life
Crimes Act s.22. A form of reckless endangerment. The subjective mental element is foresight that placing another in danger of death was a probable consequence of the conduct in the surrounding circumstances and the objective mental element is that a reasonable person in the position of the accused, engaging in the very conduct in which the accused engaged and in the same circumstances, would have realised that they had placed another in danger of death: Aggelidis v R  VSCA 6; R v Abdul-Rasool  VSCA 13, (2008) 18 VR 586.
Conduct endangering serious injury
Crimes Act s.23. A form of reckless endangerment. The mental elements are as for conduct endangering life save that the consequence is instead serious injury: R v Wilson  VSCA 78.
Dangerous driving causing serious injury
Crimes Act s.319.
Crimes Act s.195H.
Crimes Act s.195I.
A crime at common law defined as the intentional and unlawful restraint of the liberty of another person against that person’s will: Paton v R  VSCA 72, recognised by Crimes Act s.320.
Crimes Act s.21A; R v Anders  VSCA 7, (2009) 193 A Crim R 202; R v Hoang  VSCA 117, (2007) 16 VR 369; Nadarajamoorthy v Moreton  VSC 283; Berlyn v Brouskos  VSC 377; DPP v Sutcliffe  VSC 43.
> SEXUAL CRIMES
version 22 October 2020
Crimes Act sections 34B-54C. Various amendments made by Act 47 of 2016 commenced 1.7.17, Act 74 of 2014 commenced 29.6.15, Act 8 of 1991 commenced 5.8.91 and Act 81 of 1991 commenced 1.1.92. With alleged crimes preceding or crossing these various commencement dates and others, this may cause complexity especially with what are commonly called historical crimes. Past versions and amendments of the Crimes Act can be found at AUSTLII here. Within these are provisions for an alleged offence of uncertain date within a range spreading across a change of law date.
Various of the crimes defined, including rape, have an element of lack of consent. Consent means free agreement: Crimes Act s.36.
Section 36 provides a non-exhaustive listing of 13 circumstances in which a person does not consent. One is that the person does not say or do anything to indicate consent to the act. In ISJ v R  VSCA 321, (2012) 38 VR 23, the Court of Appeal pointed out of the then equivalent provision that it unequivocally displaced the anachronistic common law notion that unexplained passive or silent participation in a sexual act was to be seen as evidence of consent and was a shift towards a communicative model of sexuality, however there must be evidence that permits such a conclusion.
Jury directions which may be available on lack of consent: Jury Directions Act s.46. Several elevate to law what "experience shows". This revives a technique that the common law once abhorrently used to discredit female complainants.
The crimes defined to have an element of lack of consent also have an element of lack of reasonable belief that the person was consenting: Crimes Act s.36A (depends on the circumstances etc) and s.36B (limits the effect of self-induced intoxication on reasonable belief). The lack of reasonable belief element (sometimes called the fault element) can be satisfied by the prosecution proving beyond doubt that the accused had one of the following states of mind: (a) the accused believed that the complainant was not consenting; (b) the accused did not believe the complainant was consenting (this includes cases where the accused gave no thought as to whether the complainant was or was not consenting); or (c) even if the accused believed the complainant was consenting, the accused’s belief was not reasonable in the circumstances: Keogh v R  VSCA 145.
Jury directions which may be available on reasonable belief in consent: Jury Directions Act s.47. These seem at points to amount also to further definition of the element. One is that if the jury concludes that the accused knew or believed that a circumstance referred to in s.36 existed in relation to a person, that knowledge or belief is enough to show that the accused did not reasonably believe that the person was consenting to the act: s.47(3)(a). Another is that in determining whether the accused had a reasonable belief in consent, the jury may take into account any personal attribute, characteristic or circumstance of the accused: s.47(3)(e) and (4).
Various of the crimes defined have elements to do with sexual penetration as to which see Crimes Act s.35A. The meaning of sexual penetration is widened for the crime of compelling sexual penetration (see below) to include an accused causing themself to be sexually penetrated by the other. It is also widened for the sexual crimes against children (see below) to include an accused causing or allowing themself to be sexually penetrated by the other.
Various of the crimes defined have elements to do with sexual touching as to which see Crimes Act s.35B.
Rape is defined by Crimes Act s.38(1). The elements are A intentionally sexually penetrates B, and B does not consent to the penetration, and A does not reasonably believe that B consents to the penetration. Note the further definitions above including s.35A(1) for sexual penetration and s.36 for lack of consent. There are exceptions for medical or hygienic purposes carried out in good faith: s.48A.
Rape by compelling sexual penetration is a separate crime, defined by Crimes Act s.39. The whole of the s.35A definition of sexual penetration may have relevance.
Sexual assault is defined by Crimes Act s.40. The term assault does not import a necessity for the conduct to be forceful or violent. For common law assault, the slightest touching or putting in fear is enough for the basic act. For these statutory offences it is plain from their definition that the slightest sexual touching is enough though putting in fear is not. Other elements are lack of consent and lack of reasonable belief in consent. The term sexual in this context is not defined. It seems the legislative intent is to leave it to community judgment as with the term indecent which until 2017 was used instead in comparable provisions.
Sexual assault by compelling sexual touching: Crimes Act s.41.
Assault with intent to commit a sexual offence by Crimes Act s.42.
Threat to commit a sexual offence is defined by Crimes Act s.43.
Incest is defined by Crimes Act sections 50A-50K. Lack of consent is not an element to be proved. Various family relationships are included.
Various sexual crimes against persons with a cognitive impairment: Crimes Act sections 52A-52K.
Sexual crimes against children
All of the sexual crimes above apply equally to alleged offending against children, in practice incest in particular being charged.
With alleged offending against children, crimes which have lack of consent and lack reasonable belief in consent as elements are by policy uncommonly charged, presumably to avoid inappropriate disputation with children as to whether there was consent.
There are sexual crimes defined exclusively for offending against children and which do not have lack of consent as an element to be proved. For these crimes, there is no general definition of child by age; each of the crimes specifies the age group with which it is concerned. None of the crimes specifies an age more than 17. On the purpose of having such crimes (and applicable sentencing considerations): Clarkson v R  VSCA 157, (2011) 32 VR 361. Where there is evidence of lack of consent, the charging of such a crime instead of one which has lack of consent as an element precludes the lack of consent being an aggravating factor on sentence unless the crime charged has the same maximum sentence: Osborne v R  VSCA 160.
Crimes Act sections 49A to 49ZC which commenced 1 July 2017 define various sexual crimes exclusively against children, defined as person under 16, or with some crimes, aged 16 or 17 under care, supervision or authority. Only some are listed below. For alleged offending before 1 July 2017, it is necessary to find the legislation applicable to the time: see above.
Sexual penetration of a child under 12: Crimes Act s.49A. Sexual penetration of a child under 16: Crimes Act s.49B. Defences apply s.49V and s 49W.
Sexual penetration of a child aged 16 or 17 under care, supervision or authority: Crimes Act s.49C.
Sexual assault of a child under 16: Crimes Act s.49D.
Sexual activity in the presence of a child under 16: Crimes Act s.49F.
Crimes Act s.49J(1) defines a crime of persistent sexual abuse of child under the age of 16 (earlier legislation had a crime 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  VSCA 113. By s.49J(4) crime 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). General evidence of on-going conduct is not sufficient to prove occasions: CRR v R  VSCA 142; REE v R  VSCA 124; R v SLJ  VSCA 16, (2010) 24 VR 372; R v Sobevski  VSCA 216, (2004) 150 A Crim R 355. There is provision for a jury not satisfied of a s.49J(1) charge to be satisfied of one or more instances of various sexual crimes: Crimes Act s.49J(7).
Crimes Act sections 49C-49O define numerous crimes with an element of the alleged victim being under care, supervision or authority defined by s.37. One is failure by a person in authority to protect a child from a sexual offence: s.49O.
Child abuse material: Crimes Act sections 51A-51Y.
Sexual crimes: Evidence and procedure
The admissibility for evidence of recent complaint by a sexual complainant is under the general provisions Evidence Act s.66, s.137; Barrow (a pseudonym) v R  VSCA 102.
Delay in making a complaint: Jury Directions Act sections 48-54. It is prohibited to state that complainants who delay in making a complaint or do not make a complaint are, as a class, less credible or require more careful scrutiny than other complainants: s.51. 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 forensic disadvantage to the accused, directions to the jury, if sought are under Jury Directions Act sections 38-40; Robbins (a pseudonym) v R  VSCA 288. The provisions preclude the warning going to the extent of danger or unsafeness in convicting. Such delay is not to be used to discount exculpatory evidence: Pell v R  HCA 12.
Differences in complainant's account: Jury Directions Act sections 54A-54D.
Evidence of distress of complainant may be admissible as a type of circumstantial evidence and can be described as post-offence conduct (albeit on the part of the victim): Flora v R  VSCA 192.
There are qualified limits to the permitted cross-examination and evidence of sexual complainants including as to sexual conduct of complainant generally: Criminal Procedure Act sections 338-352; Gutierrez v R  VSCA 270; Lancaster v R  VSCA 333, (2014) 44 VR 820; Roberts v R  VSCA 313.
Confidential communications to medical practitioner or counsellor: Evidence (Miscellaneous Provisions) Act sections 32AB-32G; Todd (a pseudonym) v R  VSCA 29.
Mandatory reporting and offences of failure to report
It is an offence for a mandatory reporter to fail to report a belief on reasonable grounds that that a child is in need of protection on various defined grounds of need: Children, Youth and Families Act s.184. One ground of need is that the child has suffered, or is likely to suffer, significant harm as a result of sexual abuse and the child's parents have not protected, or are unlikely to protect, the child from harm of that type. A list of mandatory reporters is defined: s.182. An addition 2020 to the s.182 list are persons in a religious ministry, even if the person's belief was first formed before: s.184(3A).
It is an offence for a person over 18 years to fail to disclose to a police officer a reasonable belief that a sexual offence has been committed in Victoria against a child under the age of 16 years by another person of or over the age of 18 years: Crimes Act s.327.
> FAMILY VIOLENCE
version 1 November 2017
Legislation and government action in Victoria generally have come to use the term "family violence" with wide definition. A Royal Commission into Family Violence reported in 2016. The term "domestic violence" is often used in essentially the same manner as for instance by Domestic Violence Resource Centre Victoria.
The many criminal laws against violence outlined above on this page, especially from Crimes Act and Summary Offences Act, often are alleged committed in circumstances of family violence with the courts imposing sentences on proved offenders, see further sentencing notes. Typically the alleged perpetrator of a crime in circumstances of family violence is the offender alone. Sometimes issues arise whether an alleged offender has acted in response to family violence by the victim, concerning which attention is given by laws regarding criminal defences of self-defence and duress: see notes 1.
The family violence intervention court process
By Family Violence Protection Act, a separate system of law exists, mainly non-criminal, with a view to preventing further acts of family violence. It operates regardless of whether there have been criminal law proceedings.
The Act provides powers to the Magistrates' Court of Victoria, see familyviolence.courts.vic.gov.au, and the Children's Court to make family violence intervention orders, also safety notices and interim intervention orders.
The purposes of the Act are to (a) maximise safety for children and adults who have experienced family violence; and (b) prevent and reduce family violence to the greatest extent possible; and (c) promote the accountability of perpetrators of family violence for their actions: s.1
Family violence is widely defined: sections 5-7. Many of the behaviours it defines would also break general Victoria criminal laws especially those against violence and stalking but it includes much more which often would not do so, such as various forms of economic abuse, and emotional or psychological abuse.
Family member is widely defined: sections 8-10.
There are extensive police powers granted in support. There are summary criminal offences defined which concern breaches of orders and notices. Amongst these is s.123 contravention of family violence intervention order. Otherwise this process is not criminal; the powers and procedures are civil in nature.
Barrister Victorian Bar (ret)
© Don Just
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