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Homicide

Other non-sexual offences against the person

Sexual offences

> Homicide in Victoria

version 20 August 2008

NOTE: New sections being Crimes Act ss. 9AB-9AJ introduced by Crimes (Homicide) Act 2005 have made complex major changes applicable to offending alleged to have occurred after 23 November 2005.

MURDER
Crimes Act s.3
Intention to kill or inflict really serious injury: Meyers v R (1997) 71 ALJR 1488; Ryan v R (1967) 121 CLR 205; Royall v R (1991) 172 CLR 378.
Recklessness as to causing death or really serious injury: R v Crabbe (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) 154 CLR 404; Knight v R (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 self-defence in cases under the new law, 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. A new offence, being 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) 174 CLR 313; R v Holzer [1968] VR 481.

MANSLAUGHTER DUE TO CRIMINAL NEGLIGENCE R v Nydam [1977] VR 430; R v Osip [2000] VSCA 237, (2000) 2 VR 595.

MANSLAUGHTER DUE TO PROVOCATION In Victoria for offending alleged to have occurred after 23 November 2005, manslaughter due to provocation is abolished: Crimes Act s.3B. For alleged offending prior to that date, the following applies.
Masciantonio v R (1995) 183 CLR 58 at 66-7:
"Homicide, which would otherwise be murder, is reduced to manslaughter if the accused causes death whilst acting under provocation. The provocation must be such that it is capable of causing an ordinary person to lose self-control and to act in the way in which the accused did. The provocation must actually cause the accused to lose self-control and the accused must act whilst deprived of self-control before he has had the opportunity to regain his composure... However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person's age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions."
In assessing the gravity of the conduct said to be provocative, the attributes or characteristics of the accused apply to the subjective test and the objective test. For example, in R v Curzon [2000] VSCA 128 characteristics of the applicant for both tests should have included her mental state, her lack of verbal skills, her state of health and her past sexual and other relationships with the deceased. The objective test requires disregard of some personal characteristics such as bigotry based on gender, sexual preference, race, religion etc; this is a matter of defining characteristics no ordinary person could have.
See also Gilbert v R (2000) 201 CLR 41; R v McCullagh (No 3) [2007] VSCA 293; R v Margach [2007] VSCA 110; R v Barrett [2007] VSCA 95; R v McKeown [2006] VSCA 74; R v Yasso [2004] VSCA 127; R v Conway [2004] VSCA 181; R v Kumar [2002] VSCA 139; R v Leonboyer [2001] VSCA 149; R v Abebe [2000] VSCA 148; R v Thorpe [1999] VSCA 172.


Self-defence for manslaughter under the new law: Crimes Act s.9AE. For cases under new law, 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 McGrath [1999] VSCA 197; R v Wright [1999] VSCA 145; R v Franks [1998] VSCA 100, [1999] 1 VR 518; R v Shields [1981] VR 717.

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 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.

However 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; 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).

> Other non-sexual offences against the person especially as in Victoria

version 24 November 2008

Crimes Act sections 15-32.

The defence of self-defence: Zecevic v R (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; R v Roba & Novosel [2002] VSCA 74.
Defence of 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 serious injury must be intentional: 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 Banditt [2005] HCA 80; R v Crabbe (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 Hoang [2007] VSCA 117; 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 Abdul-Rasool [2008] VSCA 13; R v Thoms [2006] VSCA 101; R v Wilson [2005] VSCA 78; R v Nuri [1990] VR 641.

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: DPP v Johnston [2004] VSCA 150, recognised by Crimes Act s.320.

> Sexual offences especially as in Victoria

version 24 November 2008

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 referring to 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. By a Supreme Court trial ruling, the s.35 sexual penetration forms are alternatives by which a single offence can be committed: R v Castles [2007] VSC 561 (Bongiorno J).

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, see also s.37AAA(a). 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; R v Yusuf [2005] VSCA 69.

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 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 that 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; R v Munday [2003] VSCA 189.

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

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 maintaining a sexual relationship with a child under 16 years, requiring 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). In KRM v R (2001) 206 CLR 221 there were differing obiter judgments whether for s.47A general evidence of on-going conduct could be sufficient to prove occasions: McHugh J and seemingly Kirby J that it could not; Gummow, Callinan and Hayne JJ seemingly that it could. By R v Sobevski [2004] VSCA 216, (2004) 150 A Crim R 355, it seems that it could not, or at least the example of it in that case, could not.

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

Evidence of recent complaint, ie an accusation or grievance which is spontaneous and at first reasonable opportunity, if of sexual misconduct, is admissible but goes only to buttress credibility; it is not evidence of the truth of its contents: M v R (1994) 181 CLR 487; Papakosmas v R (1999) 196 CLR 29; R v DD [2007] VSCA 317; R v Brdarovski [2006] VSCA 231; R v Munday [2003] VSCA 189, (2003) 7 VR 423; R v Knigge [2003] VSCA 94, (2003) 6 VR 181; R v Matthews [1998] VSCA 2, [1999] 1 VR 534; R v Freeman [1980] VR 1. On first reasonable opportunity, see R v HRA [2008] VSCA 56; R v BO [2006] VSCA 247; R v GG [2004] VSCA 238. There may be more than one complaint which meets the test of first reasonable opportunity: R v Maple [1999] VSCA 52; R v Lazos (1992) 78 A Crim R 388. For admissibility, an alleged complaint also must be specific enough to be capable of identifying a charged event: R v HG [2007] VSCA 5; R v Freeman.
It is not essential that there be evidence from a recipient of the complaint: R v GAE [2000] VSCA 18, (2000) 1 VR 198; R v J (No2) [1998] 3 VR 602. It is not essential that a complainant gives evidence of recent complaint for a recipient to do so: Breen v R (1994) 180 CLR 233; R v RH [2004] VSCA 231.
It essential jury be directed as to both the permitted use and the prohibited use of complaint evidence: R v Demiri [2006] VSCA 64; R v MAG [2005] VSCA 47; R v Stoupas [1998] 3 VR 645. Also Suresh v R (1998) 72 ALJR 769; Graham v R (1998) 195 CLR 60. It seems spontaneity and first reasonable opportunity are not merely admissibility issues for the judge, if complaint is ruled admissible, they are threshold issues for the jury: R v Abela [2007] VSCA 22 (seems to settle some previous uncertainties on this mentioned in R v Demiri [2006] VSCA 64).

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 DD [2007] VSCA 317; R v WEB [2003] VSCA 205, (2003) 7 VR 200. This often is known as a "Kilby warning" after Kilby v R (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) 186 CLR 427.

If delay in making complaint has caused significant forensic disadvantage to the accused, directions to the jury, if sought, are under Crimes Act s.61(1A); R v Garbutt [2008] VSCA 170; R v Taylor [2008] VSCA 57. The section precludes the warning going to the extent of danger or unsafeness in convicting. Some cases on forensic disadvantage caused by delay, concerning trials preceding the commencement of this enactment, are Tully v R [2006] HCA 56; Crampton v R (2000) 206 CLR 161; Longman v R (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 Pignatoro [2003] VSCA 54; R v GTN [2003] VSCA 3, (2003) 6 VR 150; R v MWL [2002] VSCA 221, (2002) 137 A Crim R 282.

If delay raises a significant question as to whether recollection could be acted upon safely, directions to the jury are required Longman v R (1989) 168 CLR 79; R v DD [2007] VSCA 317.

Evidence of distress of complainant independent of the complaint is admissible subject but generally 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; R v Demiri [2006] VSCA 64; R v Mathe [2003] VSCA 165; R v Flannery [1969] VR 586.

Necessity for warning against unreliability of complainants in sexual cases is abolished, and likewise unreliability of children: Crimes Act s.61(1); Evidence Act s.23. For the pre-abolition position concerning complainants in sexual cases, see eg Kelleher v R (1974) 131 CLR 534. Where appropriate and subject to s.61, 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) 168 CLR 79. Recent complaint is not supporting evidence of this kind: R v Meyer [2007] VSCA 115; Eade v R (1924) 34 CLR 15. This is part of the requirement to warn against unreliable witnesses generally: see further generally and with respect to sexual cases, this site Notes 3.

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 above) 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). With distress, typically it will be the forensic advantage of the defence to have articulated the capability of the evidence to be corroboration and thereby also have articulated the warnings that flow with it.

Evidence of prior sexual conduct of complainant generally is permitted only by leave available for limited purposes: Evidence Act s.37A; R v Sadler [2008] VSCA 198. 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, and in Victoria trial practice ordinarily this is still accepted, and as a matter outside the ambit of s.37A.

Confidential communications to medical practitioner or counsellor: Evidence Act sections 32B-32G; for a case under sections since amended see Atlas v DPP & ors [2001] VSC 209.

Alternative arrangements, such as closed circuit TV, for giving evidence by certain complainants and other witnesses a legal proceeding that relates (wholly or partly) to a charge for a sexual offence: Evidence Act 37C, s.37CAA, s.41E.

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 known as V.A.T.E or VATE: Evidence Act s.37B; R v NRC [1999] VSCA 184; R v BAH [2002] VSCA 164; R v Lewis [2002] VSCA 200; R v Knigge [2003] VSCA 94, (2003) 6 VR 181; R v MAG [2005] VSCA 47. On the need to attest to the truthfulness of the contents of the recordings as required by s.37B(3)(c)(i), see R v LRG [2006] VSCA 288. A VATE recording is 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. The whole of the evidence of such complainants, including cross-examination and re-examination, must be within 21 days after the day on which the defendant is committed for trial and before the court at which presentment is made: s.41G. It is recorded then used in any subsequent trial: s.41H.

This page is www.justd.com/notes2.htm

page author
Don Just barrister
of Victorian Bar
Melbourne, Victoria, Australia
www.justd.com

© 1998-2008 Don Just