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EXAM NOTES – LLB106 – Jezabelle Miller

Contents:
- Offences
o Week 2 – Criminal Responsibility and Capacity
- Page 3
o Week 3 – Complicity
- Page 4
o Week 4 – Non-Fatal Offences Against the Person
- Pages 5 – 21
- Assault
- Offences endangering human life
- Domestic violence
- Stalking
- Prohibited visual recordings
o Week 5 – Homicide (1)
- Pages 22 – 30
- Elements of an unlawful killing
- Causation
- Novus actus interveniens
- Homicide as a result of negligence
o Week 6 – Homicide (2)
- Pages 31 – 39
- Unlawful killings
- Murder
- Manslaughter
- Attempted murder
- Murder and manslaughter as alternative verdicts
- Unlawful striking causing death
o Week 7 – Sexual Offences
- Pages 40 – 45
- Rape
- Sexual assault
- Other sexual offences
o Week 11 – Property Offences (1)
- Pages 46 – 51
- Robbery
- Burglary/entering
- Wilful Damage
- Arson
o Week 12 – Property Offences (2) Offences of Dishonesty
- Pages 52 – 60
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- Stealing
- Receiving
- Fraud
- Forgery and uttering
- Personation
o Week 13 – Drug Offences
- Pages 61 – 69
- Statutory context
- Producing dangerous drugs
- Supplying dangerous drugs
- Trafficking in dangerous drugs
- Defences and Excuses
o Week 8 – Provocation, Emergencies, Self-Defence, Compulsion
- Pages 70 – 82
- Specific excuses/defences for certain offences
- self-defence
- provocation
- General excuses for any criminal offence
o Week 9 – Excuses and Defences 2
- Pages 83 – 89
- Acts independent of will
- Accident
- Insanity
- Diminished responsibility
- Intoxication
o Week 10 – Mistakes and Claims of Right
- Pages 90 – 96
- Mistakes of law
- Mistakes of fact
- Past Exam Questions and Attempted Answers
o Pages 97 onwards
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Week 2 - CRIMINAL RESPOSIBILITY AND CAPACITY

 The crown must establish two elements
o Actus Reus – [‘guilty acts’] – physical acts of omissions constituting an
offence
o Mens Rea [‘guilty mind’] – the mental elements or state of mind necessary to
constitute and offence
 not assumed in QLD
 s 22 ignorance of the law
o ignorance of the law does not afford any excuse for an act or omission
 do not need knowledge of a crime to be charged with an offence
 Ostrowski v Palmer
 Onus of proof
o Always on the prosecution
 Exception: s26 Presumption of Sanity. If the defence argues insanity,
they must prove it
 Capacity
o Doli incapax doctrine – s29 Immature age
 (1) A person under the age of 10 years is not criminally responsible for
any act or omission.
 (2) A person under the age of 14 years is not criminally responsible for
an act or omission, unless it is proved that at the time of doing the act
or making the omission the person had capacity to know that the
person ought not to do the act or make the omission.
 Defences and excuses
o Excuse
 A complete answer
o Defence
 A qualified excuse or a part answer only
o Examples
 Extraordinary emergencies
 Mistake of fact
 Self defence
 Intoxication
 Provocation
 Accident
 Diminished responsibility
 Killing for preservation in an abusive domestic relationship
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Week 3 - COMPLICITY
 Offence and complicity
o s 419 Burglary
 (1) any person who enters or is in the dwelling of another with intent
to commit an indictable offence in the dwelling commits a crime.
 (2) if the offender enters the dwellings by any means of any break, he
or she is liable to imprisonment for life.

o s 398 punishment of stealing

 (1) any person who steals anything capable of being stolen is guilty of
a crime.

o s 461 Arson
 (1)(a) any person who wilfully and unlawfully sets fire to a building or
structure is guilty of a crime, and is liable to imprisonment for life.

o s 7 Parties to offences
 Deemed by law to actually commit the offence, if you are a person
who:
 Executes the offence
o The person who actually does acts or omissions which
constitute an offence
 Enables the offence
o Enabler, not at the scene of the crime
 Aids in the offence
o Aider, present at the scene of the crime
 Although mere presence is insufficient
 Counsels or procures another to commit the offence
o Counsellor / Procurer, must be evidence of what was
accused actually advised or procureds

o s 8 Offences committed in prosecution of common purpose

 Extends criminal responsibility to: situations ssbeyond the scope of
the subjective common plan which a group of offenders had
 Test for probable consequence
 2 step test:
o Ascertain what the subjective intention of the accused
was (i.e. as contained in the common plan)
o Foreseeability of the average person - knowing what
the subjective plan was, what would the average
person see as flowing from its implementation

o s 9 Mode of execution immaterial

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 Extends criminal responsibility for: those who procure someone else

to commit an offence for them – to situations where either a different
offence to that counselled is committed – or - the offence counselled
was committed but not in the way counselled.
 Relates to s 7(1)(d)

o s 10 Accessories after the fact

 Extends criminal responsibility to: persons who help someone else
escape prosecution by hiding them, helping them escape or disposing
of evidence or property etc.
 Relates to 7(1)(d)
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WEEK 4 – Non-Fatal Offences Against the Person

 Part 1: assault and offences endangering life or health
 Part 2: domestic violence, stalking, prohibited visual recordings
Part 1: Assault/offences endangering life or health
(1) Offences of which assault is an element (Ch. 30 CC):
 common assault
 assaults occasioning bodily harm
 serious assaults
(2) Offences endangering life or health (Ch. 29 CC):
 Grievous bodily harm
 Unlawful wounding
 Torture
 Offences with specific intent
 Negligent acts causing harm
Assault Offence
Common assault: s 335 – misdemeanour – 3 years
Assaults occasioning bodily harm: s 339 – crime – 7 years
Serious assaults: s 340 – crime – 7 years
Assault is an element of s 339 and 340
- Common assault is an alternative verdict on charges of s 339 and 340: s 575 CC
Assault
Definition: s 245 CC – assault unlawful: s 246 CC
 Limb 1 of 245(1) = Battery at common law
 A person who strikes, touches, or moves, or otherwise applies force of any
kind to, the person of another, either directly or indirectly, without the other
person’s consent, or with the other person’s consent if the consent is obtained
by fraud, or
 Limb 2 of 245(1) = Assault at common law
 who by any bodily act or gesture attempts or threatens to apply force of
any kind to the person of another without the other person’s consent, under
such circumstances that the person making the attempt or threat has actually
or apparently a present ability to effect the person’s purpose is said to
assault that person, and the act is called an assault.
** Section 246 and 335 are what constitutes the assault, s 245 is just a definition
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** Is there an application of force? Or for limb 2 was there an attempt of an application of

force?
Assault: Limb 1
Elements:
(1) Application of force
(2) Directly or indirectly
(3) Without consent
Element 1 - application of force:
 Definition in s 245(2):
- “applies force” includes the case of applying heat, light, electrical force, gas odour,
or any other substance or thing whatever if applied to such a degree as to cause injury or
personal discomfort”
 Must force applied be intentional?
- see McIver
Element 2 - directly or indirectly:
 Indirect force example = using a dog: Croft v Blair
Element 3: without consent:
 Implied consent to some degree to non-violent contact in some circumstances –
Kimmorley v Atherton; Boughey; Ferguson
 What level of force can be consented to? - Raabe; Lergesner v Carroll
 Consent in a sporting context – McNamara v Duncan; Re Lenfield
Assault: Limb 2
Elements:
(1) Attempts/threatens to apply force
(2) By bodily act or gesture
(3) With actual or apparent present ability to effect purpose
(4) Without consent
** Attempt OR threatening
Element 1 – attempts/threatens to apply force:
 Is intent required?
- YES, s 4 attempt requires intention – this is transferred to limb 2 assault –
see Hall v Fonceca
Element 2 – bodily act/gesture:
 Mere words are insufficient: Fogden v Wade (NZ case)
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 Words plus bodily act: Dale

 Bodily act or gesture = act by which force is threatened (R v Agius [2015] QCA 277.
 Conditional threats: Rozsa v Samuels (SA case)
** Only need to intend the threat, doesn’t need to intend to carry it out
Element 3 – actual or apparent present ability to effect purpose:
 Actual: real knife capable of doing some damage or real loaded gun. Victim’s
knowledge not relevant here.
 Apparent present ability (eg. toy gun) – see Everingham
 Victim’s state of mind:
- must the victim be aware of the threat/attempt? YES – Dale
- must the victim be in fear? NO – Brady v Schatzel
 An objective element as well as subjective element?
- Kenny example – p. 278 – Tasmanian CC s 182(1)
 What does the word present mean in ‘present ability’?
 See Secretary
Element 4 – without consent (see Slide 10 re limb 1 assault)
Assaults Occasioning Bodily Harm
Section 339 CC
 “Bodily harm” defined in s 1: “any bodily injury which interferes with health or
comfort”
 Seems very broad definition
 Must be some identifiable bodily injury eg. black eye, bloodied nose – Lergesner v
Carroll (mere sensation of pain is not sufficient: Scatchard)
 Consent to AOBH is possible – question of fact what degree of violence was
consented to: Lergesner v Carroll
Serious Assaults
Section 340 CC – crime – 7 years
 Range of circumstances, including:
- assaulting a police officer: s 340(1)(b)
- assaulting a person ≥ 60 years: s 340(1)(g)
- assaulting a person who relies on a guide, hearing or assistance dog,
wheelchair etc: s 340(1)(h)
Offences Endangering Life/Health
• Ch 29 CC = offences defined by defined seriousness/consequences
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• How are these different from assault offences?

• assault is not a defined element of the offence
- focus is on consequences
2 important points to note:
(1) victim cannot consent to these offences
(2) s 268/9 provocation defence does NOT apply
See Kaporonovski
Grievous Bodily Harm (GBH)
 Section 320 CC – crime – 14 years
Elements: (1) unlawfully (2) does (3) GBH
 Definition s 1: “GBH means
(a) the loss of a distinct part of an organ of the body; or
(b) serious disfigurement; or
(c) any bodily injury of such a nature that, if left untreated, would endanger or be likely to
endanger life, or cause or be likely to cause permanent injury to health;
whether or not treatment is or could have been available.”
 1997 amendments to definition of GBH:
- confirmed Lobston re considering injury at time done: availability of
medical treatment not relevant
- overruled Tranby re cosmetic disfigurement
 Lobston re-emphasised again in Lovell [2015] QCA 136.
 “disease” as “bodily injury” for s 320 GBH? (Clarence-type situation as GBH?)
 Intent to cause particular harm is not an element of s 320 (but causation must be
proved)
 Can “do” GBH by direct act OR by failure to perform a duty (ss 285-290) – see
Clark
Unlawful Wounding
Section 323 CC – misdemeanour – 7 years
- amended in 2008
Elements:
(1) Wounds another
(2) Unlawfully
 What does “wound” mean?
- no CC definition
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- requires a breaking of the true skin ie. bleeding

See Devine; Eisenhower; Jervis
Torture
Section 320A – crime – 14 years
- offence introduced in 1997
Definitions in s 320A(2):
 “torture” means:
 the intentional infliction of severe pain or suffering
 One act or a series of acts
 One or more than one occasion
Elements:
(1) Inflict severe pain or suffering on another person
(2) Intentionally
(3) By an act or series of acts on one occasion or more than one occasion
- “pain or suffering” includes:
o physical, mental, psychological or emotional pain or suffering
o whether temporary or permanent: s 320A(2) CC
- See Geddes; Griffin; Ping
Offences with Specific Intent
 s 315 CC Disabling in order to commit indictable offence
 s 316 CC Stupefying in order to commit indictable offence
 s 316A CC Unlawful drink spiking
 s 317 CC Acts intended to cause GBH and other malicious acts:
 Requires:
(1) one of the relevant intents (see Zaburoni v The Queen [2016] HCA 12)
plus
(2) one of the relevant actions:
 “Maim” = deprive a person of a use of some member, to mutilate or cripple:
Woodward per Douglas J
 R v Brannigan and Green – baseball bat – s 317(f) – “striking” with
“projectile”
 s 317(b) - “transmit a serious disease” – def s 1 - see Reid
Negligence Causing Bodily Harm
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Section 328 – misdemeanour – 2 years

Elements:
(1) Does an act or omitted to act where a duty to act
(2) Caused bodily harm – s 1 definition
(3) Unlawfully
Duties in s 285-290:
 285 Duty to provide necessaries
 286 Duty of person who has care of child
 288 Duty of persons doing dangerous acts
 289 Duty of persons in charge of dangerous things
 290 Duty to do certain acts
Overview of the Next Part
 Domestic violence
 Stalking
 Observing recording and distributing visual recordings
Domestic Violence
 What is domestic violence?
 Domestic violence and
 Relevant relationship
 S 8 Domestic and Family Violence Protection Act 2012 (Qld)
(DFVPA)
 What is a domestic violence?
 See s 8(1) DFVPA
 Behaviour by a person towards another person in a relevant relationship that
is:
 Physically or sexually abusive or
 Economically or psychologically abusive or
 Commercially abusive or
 Threatening or
 Coercive
 Ss (2) INCLUDES
 (a) causing or threatening personal violence
 (b) coercing or attempting to coerce to engage in sexual activity
 Coerce means to compel or force
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 (c) damaging or threatening to damage property

 (d) depriving or threatening to deprive of liberty
 (e) threatening death or injury to anyone
 (f) threatening self harm so as to torment, intimidate or frighten
 (g) causing or threatening death or injury to an animal so as to control,
dominate or coerce
 (h) unauthorised surveillance
 Examples are reading SMS messages; monitoring email account;
monitoring a persons account with a social networking internet site;
using a GPS to track movements; checking the GPS history
 (i) unlawfully stalking a person [s359B CC]
 Associated domestic violence s 9
 Behaviour to a child, relative or associate of aggrieved
Relevant Relationships: section 13
intimate personal
family
informal care relationship
Each defined in detail in ss 14 to 20
 What DOMESTIC VIOLENCE ORDERS are available?
 S 23(2) DFVPA
 Protection order:
 Temporary protection order:
 made for a short period until court determines whether to make
a protection order
 When can a court make a DV order?
 S37: if court satisfied:
 relevant relationship exists AND
 Respondent has committed domestic violence AND
 The order is necessary OR desirable to protect the aggrieved from
domestic violence
 Who may apply for a domestic violence order?
 S 25 ;32 DFVPA
 Aggrieved (the person for whose benefit a domestic violence order is
in force, and only one person may be the aggrieved)
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 Authorised person
 Adult whom the court believes is authorised by the aggrieved
even though not in writing eg. persons unable to sign
authorities due to a disability
 Police officer who has investigated and has the reasonable beliefs
mentioned in S100 (2) DFVPA
 A person acting under another Act
 Eg guardian under Guardianship and Administration Act 2000
 An attorney under Powers of Attorney Act 1998
 Police Protection Notice s 101;102
 If police present and
 Reasonably believes the respondent has committed domestic violence and
 Reasonably believes no domestic violence order has been made
 Reasonably believes should not be taken into custody
 “Suspicion” insufficient: for distinction see :
 George v Rockett [1990] HCA 26
 But must first obtain approval of supervising officer [incl by phone radio,
internet or other facility]
 Can the police take the respondent into custody?
 Yes, they have an arrest power: s 116 (1) DFVPA
 If they suspect on reasonable grounds that an act of domestic violence
has been committed AND
 Another person is in danger of personal injury by the person or
property is in danger of being damaged
 MUST THEN apply, as soon as reasonably practicable, for a protection order
naming the person as respondent. s118
 incl by way of phone, fax, telex, radio, email or similar facility: s 130(2)
DFVPA
 Police may apply for a temporary protection order and, if does, MUST apply
for a temporary protection order to a magistrate :S129 & 130:
 If reasonably believes an application for a protection order will
NOT be heard sufficiently quickly AND it is necessary or
desirable to protect the aggrieved.
 What standard conditions must be on the respondent?
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 s 28 DFVPA
 good behaviour and
 not to commit domestic violence against the aggrieved or others named
in the order
 What other conditions may be on the respondent?
 s 57 -59 DFVPA
 Any necessary in the circumstance AND desirable in the interests of
the aggrieved
 S58 Conditions that prohibit stated behaviour of the respondent that is
LIKELY to lead to domestic violence
 How might a court determine if a persons stated behaviour is LIKELY to lead to
domestic violence?
 c/f SCJ v ELT [2011] QDC 100
 Emphasis on “likely”
 Not whether there is a probability
 Real and not remote chance of it occurring
 Matters of paramount importance when the court imposes conditions :s 4 DFVPA
 protect the aggrieved and
 welfare of a child of the aggrieved:
 Criminal or civil matter? S 4 and s 145
 Civil: Rules of evidence don’t apply, requires satisfaction on balance of
probabilities
Unlawful Stalking
 Is a criminal offence and must be proved Beyond Reasonable Doubt
 What is unlawful stalking?
 s 359B(a) Criminal Code (Qld) (Code)
a) Conduct intentionally directed at a person
b) Engaged in on 1 occasion or if protracted on more than 1 occasion
c) Consisting of 1 or more of the conduct, or similar conduct, listed in (i)
to (vii)
d) that
i. would cause apprehension or fear, reasonably in the circs, of
violence; OR
ii. Causes detriment, reasonably arising in the circs.
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 It is immaterial whether:
a) the stalker intends the stalked person be aware of the conduct
b) the stalker has a mistaken belief about the identity of the stalked person
c) the conduct carried out is in relation to another person or property of
another person: ss 359C(1) and (2) Code
 Conduct is engaged in:
 On more than 1 occasion OR
 1 protracted occasion
 s 359B(b) Code
a) It is immaterial whether the PROTRACTED conduct consists of the
same or different acts: s 359C(3) Code
 Examples of acts of stalking: s 359B(c) Code
 following, loitering near, watching or approaching a person
 loitering near, watching, approaching or entering a place where a person lives,
works or visits
 contacting a person in any way, including, for example, by telephone, mail,
fax, e-mail or through the use of any technology
eg. cyberstaking - e-mail stalking, internet stalking, computer
stalking, SMS
 More acts of stalking:
 leaving offensive material where it will be found by, given to or brought to the
attention of, a person
 giving offensive material to a person, directly or indirectly
 More acts of stalking:
 an intimidating, harassing or threatening act against a person, whether or not
involving violence or a threat of violence AND
 an act of violence, or a threat of violence, against, or against property of,
anyone, including the defendant
 It is immaterial whether the conduct carried out is in relation to another
person or property of another person: s 359C(2) Code
 s 359B(d) Code THAT
 would cause the stalked person apprehension or fear, reasonably arising in all
the circumstances, of violence to, or against property of, the stalked person or
another person OR
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 causes detriment, reasonably arising in all the circumstances, to the stalked

person or another person
 It is immaterial whether the:
 stalker intended to cause the apprehension, fear or detriment: s
359C(4) Code
 apprehension, fear or violence is actually caused: s 359C(5)
Code
 R v Hubbuck [1999] 1 Qd R 314
 Where there are several acts involved to establish either PROTRACTD
conduct or on MORE THAN ONE OCCASION the jury would have to agree
on at least one of the acts
 Eg in Ali there were some 150 odd acts alleged.
 See also R v Conde [2015] QCA 63.
 What does detriment include? s 359A Code:
 Apprehension or fear of violence etc
 Serious mental or psychological or emotional harm
 Compulsion to do an act lawfully entitled to abstain from doing
 Eg uses a different form of transport to travel to work
 sells house
 no longer able to walk around front yard
 Eg R v Vaughan also withdrew works from a gallery and did
not attend there again
 Stopped taking bus and caught taxis instead
 R v Vaughan [2010] QCA 268 at 24.
 Examples of detriment in s 359A are alternatives
 Must be actual detriment and
 Detriment reasonably arose in all the circumstances
 NOTE THAT THIS IS NOT A FOCUS ON THE
REASONABLENESS OF THE ACTS DONE BY ACCUSED
BUT RATHER ON WHETHER IT WAS REASONABLE FOR
THOSE ACTS TO CAUSE APPREHENISON OR
DETRIMENT : see Ali at paragraph 15 (see also 35ff: nothing
to do with the reasonableness of the conduct as response to
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Hughes’ conduct, nothing to do with whether it’s a

proportionate response. The question is:
 Were the acts of a kind as to reasonably give rise to
apprehension or fear of detriment;
 Did the acts give rise to such a (reasonable) reaction in the
complainant?)
 Ex p Taylor [2009] QSC 131
 s 359B(d) Code
 Implies that person must know or be aware of the conduct
 Awareness and conduct do not need to be at the same time
 A lapse in time must not
 preclude detriment or
 undermine conclusion that conduct would cause apprehension
 R v Davies followed
 “It seems to me that it is not stalking to engage in conduct the stalked person is
entirely unaware of merely because once the stalked person finds out about it later the
stalked person is unhappy about it” (McGill DCJ 7)
 Ex P Taylor says:
 “This is not a case, like Davies, in which the complainants were simply angry and
upset. The conduct would also cause the stalked person apprehension or fear,
reasonably arising in all the circumstances, of violence to her, or another person.”
 In short, suggested that it might not have been stalking if the victims only found out
about it after the accused was arrested, but otherwise could have been even if they
were not aware he was watching them at the time.
 So, you do need awareness, but not at the time it’s occurring. May be too late if you
become aware after arrest but left this open (implied the offence could still be
completed at that time). But note:
 “However, in other cases a lapse of time may not preclude such a finding,
even in a case in which the defendant has been taken into custody. The
material before me does not permit me to reach any definite assessment of the
strength of the Crown case on this aspect.”
 I would explain the difference between the Davies circs and the Taylor circs by saying
that in Davies they were upset at what happened and McGill DCJ said it’s not stalking
merely because you become upset after finding out what happened and it’s all over,
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whereas in Taylor finding out about it would still cause the apprehension or fear (d)
(i). Davies judgement meant that getting upset at what happened couldn’t constitute a
detriment –wouldn’t fit within (b) “serious mental, pyschological or emotional harm”,
according to McGill DCJ.
 What does unlawful stalking EXCLUDE?
 s 359D Code
 acts done in the execution of a law or administration of an Act or for a
purpose authorised by an Act
 acts done for the purposes of genuine industrial dispute
 acts done for the purposes of a genuine political or other genuine
public dispute or issue carried on in the public interest
 reasonable conduct engaged in by a person for the person’s lawful
trade, business or occupation
 reasonable conduct engaged in by a person to obtain or give
information that the person has a legitimate interest in obtaining or
giving
 What is the maximum penalty for unlawful stalking?
 359E Code
 Unlawful stalking = crime
 Maximum penalty = 5 year’s imprisonment
 Aggravated stalking = 7 year’s imprisonment
 Can the Court issue a restraining order?
 Yes: 359F Code
 Based on an application from the Crown, an interested person or
judge/magistrate’s own initiative
 In Ali both accused were restrained for 15 years from contact
with the complainants
 Contravening a restraining order = an offence
 Maximum penalty = 40 penalty units or 1 year’s imprisonment
 Ali [2002] QCA 64
 The neighbours from hell.
 150 particularised acts alleged
 R v Davies [2004] QDC 279
 The stepfather from hell
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 Watching via equipment stepdaughters showering and undressing

 BUT AS WERE UNAWARE AT THE TIME WAS NOT
STALKING: Approach confirmed in Ex parte Taylor
S 227A Code – Observations and Recordings in Breach of Privacy

 In Circumstances where Reasonable Adult would expect to be afforded privacy

 Private place: s 207A Code
 Place where a person might reasonably be expected to engage in a
private act
 examples: bathroom, toilet, bedroom, communal change room,
changing room at clothing store
 Private act: s 207A Code
 showering
 bathing
 using a toilet
 another activity involving a state of undress or
 intimate sexual activity that is not ordinarily done in public
 Observe: s 207A Code
 Observe by any means
 My examples: Naked eye or mechanical/digital device
 Visually record: s 207A Code
 Record or transmit by any means
 Moving or still images of the person or part of the person
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 State of undress: s 207A Code

 Naked
 Bare genital/anal region
 Bare female breasts
 Wearing only underwear
 Some underwear is not covered by an outer garment

S 227B Code – Distributing Prohibited Visual Recordings

S 227C Code – Exemptions from ss 227A and B Code

Case Study of Attempted Recording in Breach of Privacy

 R v Wyllie [2010] QCA 98
 Cameras connected to computer capable of recording images set up over
tenants bedroom
 Did not actually record any images because became afraid of a male tenant
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 However constituted an ATTEMPT to commit the offence [s4 Criminal Code]

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Week 5 – Fundamentals of Criminal Law – Homicide (1)

Weeks 5 and 6 Overview
 Week 5:
 Elements of an unlawful killing
 Causation and novus actus interveniens
 Homicide as a result of negligence
 Week 6
 Elements of the offence of murder
 Elements of the offence of manslaughter
 Attempted murder and some procedural issues
Scope of Homicide
Code
 Chapter 27--Duties relating to the preservation of human life
 Chapter 28 Homicide
Unlawful Killing
 s.291 - It is unlawful to kill any person unless such killing is authorised or justified or
excused by law.
3 Elements:
(1.Person – 2.Kill – 3.Unless authorised, justified or excused)
ELEMENT 1 - “ANY PERSON”
 s.292 - A child becomes a person capable of being killed when it has completely
proceeded in a living state from the body of its mother, whether it has breathed or not,
and whether it has an independent circulation or not, and whether the navel-string is
severed or not.
 Is it an offence to kill a foetus? s.313 - makes it a crime to kill an unborn child,
including via an assault on a pregnant woman.
 s.282 - provides some defence to this crime involving operations to save the mother’s
life.
 But to constitute homicide death must occur after birth, though the acts or omissions
causing death may occur before birth: Castles [1969] QWN 36 (per Lucas J); Martin
(No.2) (1996) 86 A Crim R 133
ELEMENT 2 - “WITHOUT AUTHORITY, JUSTIFICATION OR EXCUSE”
(unlawfulness)
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 Authorised – subject to prior approval in the form of legislation or common law.

Example: Police Powers and Responsibilities Act 2000 (Qld) s.616(4). But note - R v
Prow [1990] 1 Qd R 64; (1989) 42 A Crim R 343
 Justification or excuse – Where the act or omission causing death is not expressly
authorised, but circumstances excuse the killer from criminal responsibility.
Examples: Self-defence, accident.
 Note s.284 consent immaterial.
ELEMENT 3 - “KILLS”: s.293 - any person who causes the death of another, directly or
indirectly, by any means whatever, is deemed to have killed that other person.
2 sub-elements:
 Causes
 Death
Death
 No definition in the Code
 Transplantation and Anatomy Act 1979 (Qld) s.45(1) A person dies where there has
been irreversible cessation of circulation of blood in the body of the person; or -
irreversible cessation of all function of the brain of the person
 But this definition is for purposes of the TAA only.
 Death may also be presumed on the basis of circumstantial evidence.
Killing – Causation
Recap:
- Unlawful killing = Kill + a personü + without authority/excuse ü
- Kill = a death ü + caused by the accused
- Remember the s.293 definition of killing: any person who causes the death of another,
directly or indirectly, by any means whatever, is deemed to have killed that other person
(Note that this definition is very broad). Note – causation will be indirect where it is
deemed to have occurred pursuant to the criminal negligence provisions.
- Whether the acts or omissions of the accused are capable of constituting causation (as a
matter of law) is a question for the judge.
- Whether the acts or omissions of the accused did (as a matter of fact) constitute causation
is a question for the jury.
The ‘but for’ test:
 R v Smith [1959] 2 QB 35, [1959] 2 All ER 193. Parker L: “A man is stabbed in the
back, his lung is pierced and hemorrhage results; two hours later he dies of
 24

hemorrhage from that wound; in the interval there is no time for a careful examination
and the treatment given turns out in the light of sub-sequent knowledge to have been
inappropriate and, indeed, harmful...but the right treatment was not available
- “It seems to the court that, if at the time of death the original wound is still an operating
cause and a substantial cause, then the death can properly be said to be the result of the
wound, albeit that some other cause of death is also operating. Only if it can be said that
the original wounding is merely the setting in which another cause operates can it be said
that the death does not result from the wound. Putting it in another way, only if the
second cause is so overwhelming as to make the original wound merely part of the
history can it be said that the death does not flow from the wound.”
- “The court is satisfied that R v Jordan was a very particular case depending on its exact
facts. [T]wo well-known medical experts gave evidence that in their opinion death had
been caused, not by the stabbing, but by the introduction of Terramycin after the
deceased had shown that he was intolerant to it and by the intravenous introduction of
abnormal quantities of liquid. It also appears that, at the time when that was done, the
stab wound, which had penetrated the intestine in two places, had mainly healed. In those
circumstances the court felt bound to quash the conviction because they could not say
that a reasonable jury, properly directed, would not have been able, on that evidence, to
say that there had been a break in the chain of causation; the court could uphold the
conviction in that case only if they were satisfied that no reasonable jury could have
come to that conclusion.”
- Hallett [1969] SASR 141. ….“if the deceased had been placed in a place safe from the
ordinary operations of the sea and had been engulfed by an extraordinary tidal wave as
the result of an earthquake in the sea - it may be that the earthquake and not the act of the
appellant would be regarded as the cause of death. But we cannot regard the ordinary
operations of the tides at Tumby Bay, whether known to the appellant or not as being
such a supervening cause”.
- Royall v The Queen (1990) 172 CLR 378
o The common sense/natural consequences test: Just tell jury to use common
sense. Was it a cause as a matter of fact and should it be enough for us to hold
the accused responsible? Aligns with the approach in Smith. See judgements of:
Mason CJ and Deane, Dawson JJ. Toohey and Gaudron JJ.
 25

o The reasonable foreseeability test: Has some appeal but we have specific
provisions in the Code about the criminal responsibility of people doing
dangerous things (Ch 27 and Ch 29). And we have an accident defence to cover
this (see s.23)
o The substantial contribution test: The wrongful act or omission must be an
[operating] cause and a substantial cause - need not be the sole or even main
cause. Followed in many other cases. (per Brennan J at 398, Deane and Dawson
JJ at 411 and Toohey and Gaudron JJ at 423).(followed by later HCs in Osland v
The Queen; Arulthilaka v The Queen). NB this test was adopted in Qld – R v
Sherrington [2001] QCA 105 per McPherson JA at [4].
o See also in Qld s 295CC (Causing death by threats).
- “Of course there may be no single cause of the death of the deceased, but if the accused’s
conduct is a substantial or significant cause of death, that will be sufficient, given the
requisite intent, to sustain a conviction for murder. It is for the jury to determine whether
the connection between the conduct of the accused and the death of the deceased was
sufficient to attribute causal responsibility to the accused”. (Deane and Dawson JJ at
411)
- Krakouer (2006). Two men having a fight. A 3rd party, Colbung, got involved and hit the
deceased on the base of his chin with a mallet – severe enough to cause a mortal wound.
As the victim lay on the ground, the man he was originally fighting with then bashed the
victim’s head with a marker post. This second blow was also severe enough to cause a
mortal wound. The accused fighter appealed on the basis that the victim was going to die
anyway from Colbung’s mallet strike to the chin, as this blow had been dealt beforehand
by his accomplice.
- Krakouer (2006) 161 A crim R 347
o This is a case that illustrates the limits of the but for test (would have died from
either blow, so neither can be said to be a necessary condition of the victim’s
death).
o Case said:
o The act or omission must also satisfy the legal test of causation which is used as
a filtering device to narrow the unacceptably wide net cast by the test of factual
causation.
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o The legal test of causation is that the act or omission must have substantially or
significantly contributed to the relevant event (Royall).
o We have to ask whether the factual connection between the conduct in question
and the event is sufficient to justify the attribution of moral culpability and
hence, legal responsibility for the death?
o "Substantial" means "not de minimis" (de minimis non curat lex – the law is not
concerned with trivial matters)
- Where each alone is not sufficient for death (unlike Krakouer) Consider two
assailants. A punches C in the face, breaking the nose. C cannot now breathe through his
nose. B stuffs a gag in C’s mouth. C suffocates. Who caused the death of (killed) C?
- “Where death results from multiple independent contributing causes, none of which
alone would produce that consequence, each contributing cause is a factual cause”.
Novus Actus Interveniens
- Multiple causes/third parties
R v Padgett (1983) 76 CrAppRep 279:
 Accused’s act or omission need not be sole or main cause of death, provided that it
contributed significantly.
 Where there is intervention by 3rd party - they only break the chain of causation if
what they do constitutes a novus actus interveniens - i.e. an act so independent of the
accused’s act that it should be regarded as the sole cause of death.
 In order for the act to independent it must be:
 a voluntary act of the 3rd party - that is, an act which is not a reasonable act
of self-preservation, or, an act done in performance of a legal duty.
 Actions by victim
 Medical treatment
 Where no treatment - s.297 - When a person causes a bodily injury to
another from which death results, it is immaterial that the injury might have
been avoided by proper precaution on the part of the person injured, or that the
injured person’s death from that injury might have been prevented by proper
care or treatment.
 ( Blaue [1975] 1 WLR 1412 – refusal of blood transfusion )
 “It has long been the policy of the law that those who use violence on other people
must take their victims as they find them. This in our judgment means the whole
 27

man, not just the physical man. It does not lie in the mouth of the assailant to say that
his victim's religious beliefs which inhibited him from accepting certain kinds of
treatment were unreasonable”. (Lawton LJ at 449).
 Where treatment is a (factual) cause - s.298 - When a person does grievous bodily
harm to another, and such other person has recourse to surgical or medical treatment,
and death results either from the injury or the treatment, the person is deemed to have
killed that other person, although the immediate cause of death was the surgical or
medical treatment, provided that the treatment was reasonably proper under the
circumstances, and was applied in good faith.
 R v Cook (1979) 2 A Crim R 151 - Is a decision to withhold a drug ‘treatment’?
 Yes it is a decision made on the basis of the possible consequences of administering it
(anti-coagulants thinning the blood), and so it is part of the treatment being given; we
shouldn’t just think of treatment as something you do, or, alternatively, ‘do’ should be
read broadly to include acts and omissions. The doctor makes a call not to give the
anticoagulant, and that is just as much part of the ‘treatment’ being given as a
decision to give such a drug. ‘Treatment’ includes all management of the patient.
 R v Kinash [1982] Qd R 648 - Connoly J held that the use of the life support system
merely delayed the time at which respiration ceased and at which in consequence
cardiac arrest occurred – it wasn’t a causative factor.
 See also A McGee, ‘Does Withdrawing Life-Sustaining Treatment Cause Death or
Allow the Patient to Die?’ (2014) 22(1) Medical Law Review 26-47 (withdrawal
affects only the timing of death – the ongoing provision of LST merely defers death).
 R v Jordan (1956) 40 Cr App R 152 - An example where medical treatment was
novus actus.
Irrational behaviour by victim (see Mason CJ at p.389)
 Apply the natural consequence test. Royall -
 The wrongful act must induce a well founded apprehension (of physical harm from
the accused) in the victim
 As a result of that apprehension a natural consequence will be that the victim seeks to
escape
 In escaping they die - the fatal injury caused by the act of escaping
 Reaction must not have been unreasonable or disproportionate having regard to the
wrongful act (i.e. a reaction not foreseeable by an ordinary person).
 28

 If the reaction was foreseen or intended by the accused then the test is satisfied and
the chain is not broken - note: an unreasonable reaction which was nevertheless
foreseeable or intended by the accused doesn’t break the chain.
 Read also s.295 Code.
Intervention by natural forces
Refer back to Hallett
See also McKinnon [1980] 2 NZLR 31
Criminal Negligence
- Chapter 27 of the Code imposes certain duties on persons in relation to the preservation
of human life, including:
1. the provision of necessaries (s.285, 286)
2. the duty of persons doing dangerous acts (s.288)
3. the duty of persons in charge of dangerous things (s.289)
4. the duty to do certain acts (s.290)
- Remember: These are not offence creating provisions, but - if any of these duties are
breached then the accused is “held to have caused any consequences which result to the
life or health of any person” - so a breach can amount to causation for the purposes of
unlawful killing.
- Note: you still have to prove causation: “consequences which result”. The words “is
held to have caused” are designed only to overcome the problem that, generally,
omissions are not causative (if you are bypassing a pond and you fail to save drowning
child, your conduct may be reprehensible but you don’t cause the child’s death). The
duty provisions stipulate that the omissions in those provisions can be causative. They
remove any debate about how omissions can cause consequences.
- See Kenny p 139. Gives example of how the provisions relate to offences. Eg if a parent
fails to provide necessaries to a child under 16 years in accordance with the duty imposed
under s 286, may be convicted of an offence against the person such as murder (302),
manslaughter (303), failure to supply necessaries (324 and Neilsen), negligent act
causing harm (328) or GBH (320).
s.285 - Provision of necessaries - held to have caused any consequences to their life or
health due to any omission to perform that duty. R v McDonald and McDonald (1904 case) -
let girl die who was in their care. Omission so gross that intention to do at least GBH
inferred.
 29

 See also now s 306(b) “with intent unlawfully to kill…omits to do any act which it is
the person’s duty to do” ins 1988
R v Nielsen (2001) 121 A Crim R 239 - anti-schizophrenic drug may be a necessary. Also
strong obiter of Davies JA at [30] - another necessary of life is medical assessment and
treatment which would lead to an earlier resumption of medication
S 288 Duty of persons doing dangerous acts
It is the duty of every person who, except in a case of necessity, undertakes to administer
surgical or medical treatment to any other person, or to do any other lawful act which is or
may be dangerous to human life or health, to have reasonable skill and to use reasonable care
in doing such act, and the person is held to have caused any consequences which result to the
life or health of any person by reason of any omission to observe or perform that duty
• See Patel [2010] QSC 199; [2011] QCA 081; (2012) 290 ALR 189.
• See also A McGee ‘Will the High Court decision in the Patel case make a new
prosecution any easier?’ Online Opinion 30 Aug 2012.
• Note : possible alternative route available to the prosecution in the Patel case:
• Section 293 provides:
• Except as hereinafter set forth, any person who causes the death of another, directly or
indirectly, by any means whatsoever, is deemed to have killed that person.
• Section 291 provides:
• It is unlawful to kill any person unless such killing is authorised or justified or
excused by law.
• And section 300 provides:
• Any person who unlawfully kills another is guilty of a crime, which is called murder,
or manslaughter, according to the circumstances of the case.
• Prosecution could have argued that he was guilty of manslaughter under these
provisions, and Patel’s legal team would then have pleaded section 282 as an excuse:
• Section 282 provided:
• 282 Surgical operations
• A person is not criminally responsible for performing or providing, in good faith and
with reasonable care and skill, a surgical operation upon any person for the person’s
benefit…if performing the operation or providing the medical treatment is reasonable,
having regard to the patient's state at the time and to all the circumstances of the case.
• This might have overcome the need to adopt such a strained interpretation of s 288, as
this section clearly applies to decisions to undertake surgery. The prosecution had
 30

changed tack because the trial judge thought that s 282 only applied in cases where a
patient couldn’t consent – an interpretation that was rejected by the QCA and the
HCA.
• s.289 - Duty of persons in charge of dangerous things - Duty of any person who
has charge or control of anything of such a nature, that, in the absence of care or
precaution in its use or management, the life, safety, or health of any person may be
endangered, to use reasonable care or reasonable precautions to avoid such danger
and the person is held to have caused any consequences which result to the life or
health of any person by reason of any omission to observe or perform that duty.
• R v Dabelstein [1966] Qd R 411(Wandstall CJ at 430 ):
• “It is my opinion that s. 289 applied to this pencil in the hand of the appellant in the
circumstances. The section is not, in my view, concerned only with the objective
nature of the thing in question - with its design characteristics or functions - but also
with the practical consequences of its being used or managed carelessly. A knitting
needle is an inherently harmless object by design, but a harmful one when thrust into
someone’s body, and so is a sharpened pencil, and when so used neither is
indistinguishable from a dagger”.
• Hoffman v Neilsen [1928] St R Qd 364 - jagged piece of metal thrown from train
• R v Officer [1922] GLR 175– driving unlighted vehicle along dark road
• R v O’Halloran [1967] Qd R 1 (per Mack J at 8)
• Criminal negligence can apply even if the acts were done deliberately or wilfully,
with a full appreciation of the risk, but an intention to avoid it
• R v Hodgetts and Jackson [1990] 1 Qd R 456 - a pair of butchers were sick of a
derelict hanging around their store so they put some sodium metabisulphite ( a meat
preservative) in a coke can where he could find it - hoping he would drink it and
suffer some minor discomfort. Unlawful killing grounded on criminal negligence -
deemed to have caused effects.
• Breach of these statutory duties - R v Hodgetts and Jackson - sets the test for breach
as community standards on a person in charge of dangerous things - to fall below that
standard there has to be gross negligence constituting crime deserving punishment by
State
• Section 290 Duty to do certain acts
• When a person undertakes to do any act the omission to do which is or may be
dangerous to human life or health, it is the person’s duty to do that act, and the person
 31

is held to have caused any consequences which result to the life or health of any
person by reason of any omission to perform that duty.
• R v Watson; ex parte A-G (Qld) [2009] QCA 279

Week 6 – Homicide (2)

This Week
1. If causation can be established via the current test or via criminal negligence
provisions – Ask whether the unlawful killing was:
 Murder (which is an unlawful killing meeting one of the 5 circumstances
contained in s.302(1) of the Code), or
 Manslaughter (which is any unlawful killing which does not meet one of the
5 circumstances contained in s 302(1))
 Attempted murder
2. Murder and manslaughter as alternative verdicts
3. Unlawful striking causing death
Offences Grounded in Unlawful Killings
- s.300 Any person who unlawfully kills another is guilty of a crime, which is called
murder or manslaughter, according to the circumstances of the case.
- 305 Punishment of murder
- (1) Any person who commits the crime of murder is liable to imprisonment for life,
which can not be mitigated or varied under this Code or any other law or is liable to an
indefinite sentence under part 10 of the Penalties and Sentences Act 1992.
Homicide Sentences
- Code s 305 + s 181 Corrective Services Act 2006 (Qld)
- Mandatory minimums
- Punishment for manslaughter
- s.310 of the Code provides that the maximum penalty for manslaughter is life
imprisonment. But unlike the penalty for murder this is not a mandatory sentence.
Therefore the court is able to apply the full range of sanctions open to it pursuant to the
Penalties and Sentences Act 1992 (Qld). Discount for guilty plea is available for
manslaughter (s.13 PSA) but not for murder.
Murder
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Murder consists of the unlawful killing of another under any of the 5 circumstances contained
in s.302(1). They are:
 302(1)(a) Where the offender intends to kill or to do GBH to any person
 302(1)(b) Where the death occurs as the result of some dangerous act which the
offender does in the prosecution of an unlawful purpose
 302(1)(c) Where the offender intends to do GBH to someone while carrying out a
serious crime, or to aid their escape after committing the crime
 s.302(1)(d )Where the death occurred as the result of drugging the victim as part of a
crime, , or to aid their escape after committing the crime
 s.302(1)(e) Where the death occurs by suffocating while a crime is carried out, , or to
aid their escape after committing the crime
Intentional Murder – s 302(1)(a)
Intentional killing - s.302(1)(a)
- Requires intention to cause death, or GBH (s.1 Code def) - any injury: endangering life
or likely to cause permanent injury to health includes permanent disfigurement loss of
part of body or organ of body.
- So if there is causation and an intention to inflict one of these injuries in the definition of
GBH to some person (and someone actually dies as a result of that intention) - there is a
murder under the Code.
Examples
- A intends to harm B by cutting his ear off (see the Tarantino film Reservoir Dogs). B
actually dies. Even though he didn’t intend him to die, but only to harm him, A may be
charged under s 302(1)(a).
- A intends to harm B by causing GBH but harms C by mistake, and C dies. May be
charged with murdering C under s.302(1)(a).
No definition of “intention” in the Code – therefore, look at common law cases.
Form of intention satisfy 302(1)(a)
1. Purpose intention: Where the intention is the whole reason for the accused’s actions.
e.g. “I shot him in the head because I intended to kill him”. See Connolly J in
Willmot (No.2). This kind of intention is the only kind that will ground a charge on
intentional murder under the Code
2. Foresight intention: Where the accused does something and death is a highly
probable result – he is deemed to intend death. See Campbell J in Willmot (No.2).
 33

THIS IS NOT THE LAW IN QUEENSLAND, AUSTRALIA OR IN ENGLAND.

(Qld the law is 1.; common law in Aus – see next slide).
Common law in Australia
1. Purpose intention; or
2. Knowledge of death as probable: R v Crabbe [1985] HCA 22, para [10].
Note: Element 2 really is a separate element and is not just a wider definition of intent (ie it is
not foresight intention, but just knowledge the consequence is likely to occur).
 Seems very similar to oblique or foresight intention, but it is not construed in
Australia as intention at all but as a separate, alternative mental element
entirely.
** Common law in Aus is different
 In Qld and England, foresight of a result as a virtually certain consequence is a rule of
evidence entitling the jury to infer intention, but it is not part of the definition of
intention (not part of the “substantive law”): Woollin per Lord Steyn.
 Query: does foresight of death as probable, but not virtually certain, also allow the
jury to infer intent? Answer: No. The rule is stated in Nedrick: “jury not entitled to
infer the necessary intention unless they feel sure that death or serious bodily harm
was a virtual certainty (barring some unforeseen intervention) as a result of the
defendant’s actions and that the defendant appreciated such”[1986] 3 All ER 1, at 3.
 There is debate about the relationship between Woollin and Moloney (see, eg, A
Norrie ‘After Woollin’ (1999) Crim LR 532).
 Some think Lord Steyn made foresight of death as virtually certain into part of
the definition of intention, rather than merely a rule of evidence. This is not
so.
 He does say “a result foreseen as virtually certain is an intended result”, but
the context makes it clear that he endorses the Moloney and Nedrick view that
it’s merely a rule of evidence.
 R v Moloney: stepfather and son drunk, father challenges son to a gun duel. It doesn’t
end well.
 Issue: was son aware the gun was pointing directly at his father’s head when he pulled
the trigger?
 There was some credible doubt about whether he was aware of this.
 If had been aware, it would have been impossible to say that he didn’t intend
death or GBH (would definitely have been murder).
 34

 Lord Bridge’s analysis in Moloney subsequently accepted.

 There was only criticism of his recommended direction to the jury, which required the
judge to tell the jury:
 Was death a natural consequence of the defendant’s act?
 Did the defendant appreciate this?
 R v Hancock and Shankland says: reference to “natural consequences” in Lord
Bridge’s proposed direction is misleading. Jury should be directed that the
consequences need to be foreseen as probable, where "probable" means little short of
overwhelming.
 Otherwise, the direction would be too broad and would contradict Lord Bridge’s very
own findings of law.
 R v Hancock and Shankland – dropped concrete post from a bridge over a motorway,
onto a convoy below during the miner’s strike.
 Claimed intent was to block route to work and scare the miner: thought the
block would drop in adjacent lane.
 R v Nedrick: similar facts to Hyam – accused poured paraffin through a front door
setting it alight.
 Claimed ‘didn’t want anyone to die’ – just wanted to ‘wake her up and
frighten her’.
 Woollin [1999] AC 82 – Man loses temper and throws infant on to hard surface.
Expression of anger, not an intention to harm. Intentional murder conviction possible
if serious harm a virtual certainty and this was appreciated by the defendant at the
time of the alleged offence.
 Lord Steyn supported Lord Lane CJ’s observation in R v Nedrick. Lord Lane CJ said:
 “When determining whether the defendant had the necessary intent, it may therefore
be helpful for a jury to ask themselves two questions. (1) How probable was the
consequence which resulted from the defendant's voluntary act? (2) Did he foresee
that consequence? If he did not appreciate that death or serious harm was likely to
result from his act, he cannot have intended to bring it about. If he did, but thought
that the risk to which he was exposing the person killed was only slight, then it may
be easy for the jury to conclude that he did not intend to bring about that result.”
 “…Where the charge is murder and in the rare cases where the simple direction is not
enough, the jury should be directed that they are not entitled to infer the necessary
intention unless they feel sure that death or serious bodily harm was a virtual certainty
 35

(barring some unforeseen intervention) as a result of the defendant's actions and that
the defendant appreciated that such was the case.”
 Willmot (No 2) [1985] 18 A Crim R 42 - Justice Connolly, with whom the other two
judges agreed, said that intention and desire were different things at law. The
problem at trial was that the jury had been told that it was enough to prove intention if
they were satisfied that the accused realised that what he was doing might or was
likely to endanger her life. A reckless attitude of pressing ahead with what you are
doing even though there’s a risk that the person could be killed isn’t enough to ground
intention for the purposes of 302(1)(a). Connolly rejects knowledge intention for
purposes of the Code.
 In R v Reid [2006] QCA 202 – per Chesterman J at [90] – “In ordinary, everyday,
usage, “intention” means the act of “determining mentally upon some result’.
Intention is a ‘purpose or design”. If an accused intends to kill, or transmit a disease,
he means to kill or transmit the disease. His actions are designed to bring about the
result.”
 In Zaburoni v The Queen [2016] HCA 12 High court now realise that the idea you
can intend a consequence you don’t desire is misplaced. You may not like the fact that
you are bringing it about, but to the extent that you choose to do so, you do desire to
do so (someone performing euthanasia may regret having to do so but, to the extent
that they choose that option as the best outcome for their patient, they do desire that
outcome more).
 See also Andrew McGee and Andrew Garwood-Gowers “Criminal Intent”
http://www.onlineopinion.com.au/view.asp?article=18089 which we wrote before
the judgement was handed down. See also para 18 of HCA judgement.
 The famous ‘insurance bomber case’ (Glanville Williams).
 Bomber places a parcel on plane which is insured. Blows up parcel to recover the
insurance, thereby making money.
 Can we infer intention to kill the passengers?
 Death or GBH clearly foreseen as virtually certain.
 But that’s just a rule of inference – did he intend deaths of passengers or just to
recover on insurance?
 Goff, 'The Mental Element in the Crime of Murder' (1988) 104 LQR 30
 A McGee, ‘Intention, Foresight and Ending Life’ (2013) 22(1) Cambridge Quarterly
of Healthcare Ethics 77 http://eprints.qut.edu.au/46789/2/46789.pdf
 36

 There is also the doctrine of double effect where a medical practitioner may foresee
but not intend death.
 Pain relief to dying patient in agony: intention is to relieve pain, but
foresee death may be hastened
 R v Adams (common law). There is some dispute about whether this UK case is
compatible with the Australian common law, given that there are two alternative
mens rea elements in Australia (intent or knowledge) as opposed to the one in the UK
and Qld (intent).
 But in Qld we have section 282A
 Note the qualification re an intention to bring about death in subsection (3)(a).
 The rule that medical practitioners can foresee but not intend death was considered in
the Re A case [2000] 4 All ER 961.
 Concerned doctors separating conjoined twins, one of whom would definitely die as a
result.
 Accepted intention to end Mary’s death.
 Coincidence of physical acts and intention:
 Where death caused by accused, cannot rely on mistake as to precise time and manner
of occurrence of death: Thabo Meli - intended to kill a man and tried to make it look
like an accident (after they’d assaulted him) by rolling him over a cliff - he died from
the fall so they argued that they intended to kill him, but not when they rolled him
over the cliff. Church - Similar facts but rolled victim into river. Royall - Mason CJ,
approved Thabo Meli. Don’t need physical act to coincide with the intention at all.
 Thabo Meli [1954] 1 All ER 373 - Offenders took a man to a hut - struck him over
the head - thought he was dead. Took his body and rolled it over a cliff. The victim
didn’t in fact die from the blow to the head or the fall from the cliff - medical
evidence showed that he died from exposure as he lay unconscious at the foot of the
cliff. A series of events causing death – no need to isolate any particular act
 Church [1966] 1 QB 59 – The accused clearly intended that the victim die, otherwise
he would not have attempted to hide the body.
Dangerous Act Killing – s 302(1)(b)
 302(1)(b) An unlawful killing will be murder if death is caused by means of an act
done in the prosecution of an unlawful purpose, which act is of such a nature as to be
likely to endanger human life
 37

 s.302(3) It is immaterial that the offender did not intend to hurt the particular person
who was killed
 This provision postulates circumstances in which an unintentional killing will
nevertheless be murder
3 physical elements in addition to it being an unlawful killing:
 A dangerous act
 An unlawful purpose
 The Act was done in prosecution of that unlawful purpose
A dangerous act (one likely to endanger human life)
 Determined objectively - Gould and Barnes - Charged with dangerous act killing
when they attempted to bring about a miscarriage in a girl (girlfriend of one of them).
Administered a mixture of glycerine, dettol and Surf to her uterus. It killed her. They
argued that the outcome would occur - in their view it wasn’t an act that would be
likely to endanger human life. Townley J - held that the question of whether the act
is likely to so endanger is objective, and up to the jury as reasonable people -
informed by experts if necessary.
 Hind and Harwood (1995) 80 A Crim R 105 – per Fitzgerald P – “Likely” does not
mean it’s more probable that not that the act would endanger life. It just means that
there is a real and not remote chance – not a case of being more than a 50/50 chance.
Unlawful Purpose
 There must be a separation between the unlawful purpose and the dangerous act. In
Gould and Barnes the unlawful purpose had been to procure an abortion – and
dangerous act was introducing the liquid into uterus (if they’d used cyanide for
example it would have been clear cut).
 How much separation is required? R v Hughes - dangerous could be merely an
assault - but must be assaulting the victim in pursuit of some other unlawful purpose.
In this case assault was both unlawful purpose and the dangerous act - so only
convicted of serious assault.
 Stuart v R - In extortion attempt set fire to drum of petrol in Whisky-au-go-go.
Didn’t intend GBH or death - but people died of asphyxiation. HC said that setting
fire to something in prosecution of unlawful purpose of arson met the separation
requirement - so separation required very minimal. (unlawful purpose also could
have been extortion not just arson)
 38

 In Hughes the dangerous act causing death was a violent assault but the accused had
no purpose other than to assault the deceased.
 The principle recognized in Hughes v R was extended in R v Nichols, Johnson and
Aitcheson [1958] QWN Case 29, to a case in which the death was caused in a fire
started by the accused with the intention of burning down a hotel. Sheehy J held that a
verdict of murder was not open to the jury. He said that “that act which caused death,
that is the setting fire to the hotel, which itself was arson, was the unlawful purpose”
and that “the unlawful or dangerous act relied upon, setting fire to the hotel, is alleged
to be at once the unlawful purpose and the dangerous act, and s 302(2) does not
apply” With respect, this was a misapprehension of the decision in Hughes v R. In R v
Nichols, Johnson and Aitcheson the dangerous act was the striking of a match and
applying it to kerosene on the stairs of the hotel, but the unlawful purpose was to
commit arson by burning down the hotel; the dangerous act and the unlawful purpose
were not the same. The decision in R v Nichols, Johnson and Aitcheson was not
required by Hughes v R and Barnes finds no support in other authorities on the Code.
 You might think the problem is: the same argument could be used of the assault: the
dangerous act is punching and the unlawful purpose is assault.
 Is striking the match and applying it to the kerosene arson? The court distinguished
between ‘the striking of a match and applying it to kerosene on the stairs of the hotel’,
and the ‘unlawful purpose of committ[ing] arson by burning down the hotel.’ Not
clear what the distinction is.
 Reproduces well known problem in defining actions.
 Summary - if the separation required between the dangerous act and the unlawful
purpose is minimal (R v Stuart) and that this minimal separation is satisfied b setting
fire to a building in order to commit arson (R v Stuart) and by penetrating in order to
commit rape (Skilton) - but in striking someone to commit an assault you would
have to examine the facts closely (R v Hughes).
 Phillips and Lawrence (1967) Qd R 237 - The dangerous act (rape and assault) not
done in furtherance of the robbery.
 So what is required is an act in the pursuance of the common desire, something done
to achieve the unlawful purpose. Furtherance of, pursuance of, for the purpose of.
Attempted Murder
 39

Not all attempts to kill someone succeed – but we still want to deter and punish people who
try to kill others. So: s.306 of the Code provides that an attempt to unlawfully kill another
person is a crime and that the maximum penalty is life imprisonment.
Type 1
 The accused attempted to kill another person, and
 The attempt was unlawful
Type 2
 The accused did an act, or failed to do an act which they had a duty to do, and
 The act or omission was of such a nature that it would be likely to endanger human
life, and
 It was done with the intention to unlawfully kill someone
Manslaughter
303 Definition of manslaughter
- A person who unlawfully kills another under such circumstances as not to constitute
murder is guilty of manslaughter. So basically - all unlawful killings not defined as
murder by s.302.
- s.576(1) - if a person is charged on an indictment for murder he can be convicted of
manslaughter if the evidence doesn’t support murder. BUT,
- s.576(2) – if a person is charged on the indictment with unlawful killing
(manslaughter), he cannot be alternatively convicted of murder.
- s.577 – if a person is charged on the indictment with murder or unlawful killing
(manslaughter), he can be alternatively convicted of killing an unborn child (s.313) or
concealing the birth of a child (s.314) – if the deceased was a child.
 s.310 provides that “any person who commits the crime of manslaughter is liable to
imprisonment for life”.
 Example - Crown charges person with manslaughter for a criminally negligent breach
of s.289 – a person in charge of a dangerous thing. If the negligent use of the
dangerous thing wasn’t intended to cause death or serious injury to the deceased, and
it wasn’t used in the prosecution of an unlawful purpose then the Crown would draw
up a manslaughter indictment –accused deemed to have caused the death according to
289.
 R v Hodgetts and Jackson - They didn’t intend victim to suffer any serious harm
(therefore no 320(1)(a) murder). What they were doing was indeed a dangerous act,
but they did it to try and chase him away from their business and not in the
 40

prosecution of some unlawful purpose (so there was no 302(1)(b) murder). Therefore
they could only be charged with manslaughter.
 S 314A Unlawful striking causing death
 http://opck.qhvsg.org.au/about/history/
 Note subsection (2): s 23(1)(b) (defence if neither intended nor foreseen or ordinary
person wouldn’t reasonably foresee it) does not apply
 Note subsection (3): assault is not an element of the offence (see the relevance of this
on the assault slides)
Week 7 – Sexual Offences
Overview
• Rape
• Sexual assault
• Other sexual offences
Definitions
See diagram at http://en.wikipedia.org/wiki/Vulva
• Female genitalia = clitoris and vulva
• Vulva = clitoris, labia majora, labia minora, mons pubis and vagina
• Vagina = internal female orifice from the uterus to the exterior
• Anus = internal tract from the rectum to the exterior
See diagram at http://en.wikipedia.org/wiki/Penis
• Male genitalia = penis
• Penis = external male sexual organ (note: s 1 Code definition)
• Anus = internal tract from the rectum to the exterior
Rape
Section 349(1):
• crime – life imprisonment
Section 349(2):
• Extended definition of rape (2000 amendments)
• 3 types
** Extended definition was added in year 2000
Rape: Elements
Section 349(2)(a):
(1) Carnal knowledge of another
(2) Without the other person’s consent
 41

Section 349(2)(b):
(1) Penetrated vulva, vagina or anus of another
(2) To any extent
(3) With a thing or part of the person’s body that is not a penis
(4) Without the consent of the other person
Section 349(2)(c):
(1) Penetrated the mouth of another
(2) To any extent
(3) With a penis
(4) Without the consent of the other person
** All three types include the absent of consent (most important element)
Rape: Carnal Knowledge
Definitions relevant to s 349(2)(a):
• s 6(1) – carnal knowledge is “complete on penetration to any extent”
Note: re “complete” see Mayberry (1973) Qd R 211
• s 6(2) – carnal knowledge “includes sodomy”
Therefore, s 349(2)(a) = penetration by the penis of the vagina/vulva or anus
Note: s 347 – “penetrate does not include penetrate for a proper medical, hygienic or law
enforcement purpose only”
** s 6(1); to any extent means there is no need for full penetration, just penetration to any
extent
** Mayberry case; victim had initially given consent but withdrew consent during
activity
** The word complete does not mean carnal knowledge ceases upon penetration;
carnal knowledge continues, and in this situation, consent is withdraw and the accused
didn’t act on the withdrawn consent, so there was rape in the context
Rape: Consent
Section 348 definition relevant to Chapter 32 only:
• s 348(1) - “consent freely and voluntarily given by a person with the cognitive
capacity to give the consent”
- General discussion see Winchester [2011] QCA 374
- re capacity see Francis [1993] 2 Qd R 300; Millar [2000] 1 Qd R 437; Mrzljak [2005] 1 Qd
R 308
- re physical submission see Holman [1970] WAR 2; Wagenaar [2000] WASCA 325
 42

- withdrawal of consent see Mayberry

- s 24 mistaken belief as to consent – Re AG’s Ref (No 1 of 1977) [1979] WAR 45
• Note: s 349(3) – “a child under the age of 12 years is incapable of giving consent”
** No definition of freely or voluntarily, so it is up to a jury to decide whether the victim
gave consent freely and voluntarily
** Effect on a person’s freedom of choice to freely and voluntarily consent (in regards to
false promises)
** If someone is grossly intoxicated (by alcohol or drugs), they would lack the cognitive
capacity to give consent
** Intoxication is relative and depends on the person
** Question is what is the effect on their cognitive capacity
** Mental and physical disabilities can provide context that would prove they lack the
cognitive capacity to give consent
** Unconsciousness/ asleep also provides a lack of cognitive capacity to give consent
Section 348(2) – consent is not freely and voluntarily given if obtained by:
(a) force;
(b) threat or intimidation – PS Shaw [1995] 2 Qd R 97
(c) fear of bodily harm – note s 1 definition
(d) exercise of authority – Brewer (1994) 2 NZLR 229
(e) false and fraudulent representations about the nature and purpose of the act –
Williams [1923] 1 KB 340; Papadimitropolous (1957) 98 CLR 249 ; Mobilio [1991] 1
VR 339; R v BAS [2005] QCA 97
(f) mistaken belief induced by accused person that accused person was the person’s
sexual partner – Kake [1960] NZLR 595; Pryor [2001] QCA 341
** Above is not an exhaustive list
** In an exam, for (b), mention both options that it could be a substantial threat or a minor
threat (subjective??)
Sexual Assault
Section 352:
• crime – penalties from 10 years up to life
• covers all forms of non-consensual sexual contact other than that within s 349 (rape)
• alternative verdict on a rape charge – see s 578
• “assault” definition in s 245 applies to s 352(1)(a) – so limbs 1 & 2 assault apply
• lack of consent must be proved:
 43

• but does s 245(1) consent or s 348 consent apply to sexual assault? See R v
BAS at [51]-[52].

Sexual Assault: Aggravated Circs

Section 352(2) circumstances of aggravation: (max - 14 years)
If s 352(1)(a) or (1)(b)(i) involves:
 bringing into contact the genitalia/anus of a person
 with any part of the mouth of a person
Section 352(3) circumstances of aggravation: (max - life)
 44

IF (a) immediately before, during or immediately after the offence

 The offender is or pretends to be in possession of a
dangerous/offensive weapon OR
 Is in company with another person
(b) for s 352(1)(a), the indecent assault includes:
 the victim penetrating the offender’s vagina/vulva/anus
 to any extent with a thing or body part that is not a penis
(c) for s 352(1)(b)(i), the act of gross indecency includes:
 the victim, who is procured by the offender,
 penetrating the vagina/vulva/anus of themselves or another
person
 with a thing or body part that is not a penis
Sexual Assault: Indecent
 No code definition of “indecent”
 question of fact for jury - a sexual connotation is required - judge according to
contemporary community standards
 But difficulty in defining more specifically:
- narrow/strict definition: “moral turpitude” or “acting in a base or shameful manner”–
Bryant, adopted in McBride [2008] QCA 412
- wider/less strict definition: “unbecoming or offensive to common propriety” – Drago
(1992) 8 WAR 488 (Note: WA decision)
• Relevance of accused’s motive or purpose in doing the act? – Drago; Jones [2011]
QCA 19; McCallum [2013] QCA 254
Sexual Assault: s 352(1)(b)
Section 352(1)(b)(i):
• “procures” – not defined
- previously s 337(4) definition = “knowingly entice or recruit for the purpose of
sexual exploitation”
• “gross” – “plain, evident, obvious”: Whitehouse [1955] QWN 76
Other Sexual Offences
Non-consensual offences:
 Attempt to commit rape: s 350
 Assault with intent to commit rape: s 351
Offences where consent is immaterial:
 45

 Unlawful sodomy with a person under 18 or intellectually impaired: s 208

 Indecent treatment of children under 16: s 210
 Unlawful carnal knowledge of children under 16: s 215
 Using electronic communication to procure children under 16 to engage in a sexual
act: s 218A
 Incest: s 222
 Bestiality: s 211
 46

Week 11 – Property Offences

Overview
1. Robbery ss 409, 411
2. Burglary/entering ss 418, 419, 421
3. Wilful damage s 469
4. Arson s 461
Robbery
Definition in s 409:
- Any person who steals anything, and, at or immediately before or immediately after
the time of stealing it, uses or threatens to use actual violence to any person or
property in order to obtain the thing stolen or to prevent or overcome resistance to its
being stolen, is said to be guilty of robbery.
Punishment in s 411:
(1) Any person who commits the crime of robbery is liable to imprisonment for 14 years
Sub-section (2) = aggravating factors for which the offender is liable to imprisonment for
life.
Elements of Robbery
1. Steals (s 391 definition)
2. anything
3. at or immediately before or immediately after the time of stealing it
4. Uses or threatens to use actual violence
5. To any person or property
6. In order to obtain thing stolen or prevent/overcome resistance to its being stolen
Robbery = stealing plus actual/threatened violence
 Stealing introduced in Week 3 Workshop problem and covered in more detail in
Week 12 Lecture
 Stealing = fraudulent taking or fraudulent conversion of anything capable of being
stolen
- most commonly, “an intent to permanently deprive the owner of the thing of it”: s 391(2)(a)
Robbery – Violence
 Robbery different from stealing because of the violence or threat of violence
 No definition of violence in the Code
 Requires some degree of force to be used/threatened
 47

 The smallest amount of actual or threatened violence will be enough, but there must
be more than just fear of violence: R v Jerome [1964] Qd R 595
 Violence could be:
1. Actual violence to person
2. Actual violence to property
3. Threatened violence
Note the requirements of purpose and timing of the violence: See Hood (2000) 111 A Crim R
556
Aggravated Forms of Robbery
 s 411(2) aggravating factors (max life imprisonment)
 Armed (or pretending to be armed) with dangerous or offensive weapon or
instrument
 Is in company with one or more other person or persons
 At or immediately before or immediately after the time of the robbery, wounds
or uses any other personal violence to any person, at or immediately after or
before robbery
[note: this third option of personal violence could be both an element of the simple offence
AND an aggravating circumstance: De Simoni
Aggravating Factors
 Aggravating factors must be charged in indictment: Johnson [1973] Qd R 303;
Phillips and Lawrence; McGoldrick [1995] 1 Qd R 553
 “Armed” includes gun, sword and a syringe full of blood: Miles (1997) WAR 518;
Pratt (2000) 112 A Crim R 70
 “In company” does not mean more than 1 person has to actually use violence against
the victim
- it is enough for more than 1 to be physically present for the common purpose: Brougham
(1986) 43 SASR 187
Robbery: Alternative Offences/ Verdicts
 Note also:
 s 412 Attempted robbery - R v Agius [2015] QCA 277
 s 413 Assault with intent to steal
 s 414 Demanding property with menaces with intent to steal
 s 575 Alternative verdict – stealing
Note: assault is NOT an alternative verdict
 48

Burglary
419(1) Any person who enters or is in the dwelling of another with intent to commit an
indictable offence in the dwelling commits a crime.
Maximum penalty—14 years imprisonment.
(2) If the offender enters the dwelling by means of any break, he or she is liable to
imprisonment for life.
(3) If—
(a) the offence is committed in the night; or
(b) the offender—
(i) uses or threatens to use actual violence; or
(ii) is or pretends to be armed with a dangerous or offensive
weapon, instrument or noxious substance; or
(iii) is in company with 1 or more persons; or
(iv) damages, or threatens or attempts to damage, any property;
the offender is liable to imprisonment for life.
(4) Any person who enters or is in the dwelling of another and commits
an indictable offence in the dwelling commits a crime.
- Maximum penalty—imprisonment for life.
Elements of Burglary
 Section 419(1)
1. enters or is in
 defined s 418(2) – part of person’s body or instrument within the
dwelling or premises
2. dwelling of another
 definition in s 1
3. with intent to commit an indictable offence
 defined in s 3
 14 years’ maximum imprisonment
Aggravating Factors of Burglary
Life imprisonment if:
Section 419(2)
Enters - defined s 418(2)
Dwelling - defined s 1
by means of any break - defined s 418(1)
 49

Section 419(3):
 At night: [defined in s 1 as 9 pm-6 am] OR
 Uses or threatens to use actual violence OR
 armed or pretending to be armed OR
 in company with 1 or more persons OR
 damages or threatens or attempts to damage, any property
Section 419(4):
 Enters or is in
 dwelling of another
 commits an indictable offence in the dwelling
Meaning of ‘Break’
 Break - see s 419(2) – circumstance of aggravation
 What is a break?
 s 418(1) definition is very broad [1997 amendment]
How would the older cases be decided today?
 Halley (1938) 40 WALR 105
 Parry [1957] NZLR 846
 Galea (1989) 46 A Crim R 158
 Note: constructive break s 418(3)
Boyle [1954] 2 QB 292
Intent to Commit and Indictable Offence
With intent to commit an indictable offence in the dwelling: s 419(1)
 What if the intent is only fleeting/momentary? Potter (1981) 4 A Crim R 305
 When must the intent be present?
 What if a different offence is committed from that intended?
 What if no offence committed at all while in the dwelling?
Entering Premises with Intent: s 421
Burglary under s 419 relates to DWELLING, whereas s 421 covers premises other than
a dwelling:
421(1) Any person who enters or is in any premises with intent to commit an indictable
offence in the premises commits a crime.
Maximum penalty—10 years imprisonment.
(2) Any person who enters or is in any premises and commits an indictable offence in the
premises commits a crime.
 50

Maximum penalty—14 years imprisonment.

(3) If the offender gains entry to the premises by any break and commits an indictable offence
in the premises, he or she is liable to imprisonment for life.
Elements of s 421
Offence under s 421:
1. Enters
2. Premises [see s 418(4) definition]
3. With intent to commit indictable offence
Aggravating factors (max. life imprisonment):
 Committing an indictable offence
 Gaining entry by means of a break and committing an indictable offence
Other offences: ss 11, 15 Summary Offences Act 2005
Wilful Damage
469. Any person who wilfully and unlawfully destroys or damages any property is guilty of
an offence which, unless otherwise stated, is a misdemeanour, and the person is liable, if no
other punishment is provided, to imprisonment for 5 years.
 See punishment in special cases (1-10)
Wilful Damage: Elements
1. Unlawfully: see s 458 – act which is done without owner’s consent is unlawful
s 459 – act done to one’s own property with intent to defraud is unlawful
2. Wilfully: see Lockwood [1981] Qd R 209
- requires actual intention to do that particular damage OR deliberately did an act, aware at
the time, that the result [ie. damage] was a likely consequence of the act and recklessly did
the act regardless of risk
3. Destroys or damages:
 No general definition of either term
 Zischke [1983] 1 Qd R 240 – “damage” means to “render imperfect or
inoperative”
 ‘Damage in relation to a document’ - s 1
4. Property: defined in s 1
Note also s 7 Regulatory Offences Act 1985 (Qld)
Arson
461 Any person who wilfully and unlawfully sets fire to any of the things following, that is to
say—
 51

(a) any building or structure whatever, whether completed or not;

(b) any vessel, whether completed or not;
(c) any stack of cultivated vegetable produce, or of mineral or vegetable fuel;
(d) a mine, or the workings, fittings, or appliances of a mine;
(e) any aircraft or motor vehicle;
is guilty of a crime, and is liable to imprisonment for life.
Arson: Elements
1. Sets fire to the property
 Must prove to have burned some part: not mere scorching, blistering or
blackening – Jorgenson (1955) 3 Can CC 30
 “expression extends beyond actual ignition to embrace conduct causing a
building to burn”: Joinbee [2013] QCA 246 at [1]
 What is a “structure”? See Berghofer (1997) 91 A Crim R 307
2. Wilfully
 Lockwood test
 R v T [1997] 1 Qd R 623
3. Unlawfully – note s 458
Note also s 462 Endangering particular property by fire
 52

Week 12 – Property Offences (2) Offences of Dishonesty

This Week
 Offences involving dishonesty or unlawful possession
 Stealing (ss 1, 390, 391, 398)
 Receiving (s433, s432)
 Fraud (s408C)
 Offences involving intent to defraud
 Forgery and uttering s 488
 Personation s 514
Stealing

Stealing
s390
s391 s398 Defines
s1 definition
Defines Punishment things
of property
stealing for stealing capable of
being stolen

Definition of Stealing

1.Fraudulently
2.Takes/Converts
A person who; 3.Anything
capable of being
stolen.
 53

- S391 provides us with a number of elements. It is for the prosecution to prove each
element beyond a reasonable doubt. All of these elements must be fulfilled in order
for the offence to be made out. At times these elements can seem artificial but each
element must be proved for the offence to be made out. If one or more of the
elements cannot be proved another dishonesty offence may be made out. We will
look at this in more detail when we discuss s581 and Unlawful use or possession of a
motor vehicle s408A Code. Stealing can be either a fraudulent taking or a fraudulent
conversion. Taking/converting can operate differently, although in most cases an
offender can be caught under either.
Stealing – Meaning of ‘Fraudulently’
Element: Fraudulently
 ‘Fraudulently’: Must be proven for taking stealing by taking and stealing by and
conversion
 s 391(2)(a)-(f) deemed fraudulent..
 s 391(2):
A person who takes or converts anything capable of being stolen is deemed to do so
fraudulently if the person does so with any of the following intents, that is to say—
(a)  an intent to permanently deprive the owner of the thing of it;
 ‘Owner’ has an extended definition s391(7):
(7)  owner includes the owner, any part owner, or any person having possession or control of,
or a special property in, the thing in question.
 s391(3) The taking or conversion may be fraudulent, although it is effected without
secrecy or attempt at concealment.
 R v Walk [1981] Qd R 380
 Meaning of control is wide includes types of possession not commensurate
with full ownership – eg real estate agent.
 Must be an intention to permanently deprive – cannot be temporary
deprivation –Bailey [1924]QWN 38.
 s 391(2)(b)  an intent to permanently deprive any person who has any special
property in the thing of such property; Special property is defined in s391(2AA)
(c)  an intent to use the thing as a pledge or security;
(d)  an intent to part with it on a condition as to its return which the person taking or
converting it may be unable to perform;
 54

(e)  an intent to deal with it in such a manner that it can not be returned in the condition in
which it was at the time of the taking or conversion;
(f)  in the case of money—an intent to use it at the will of the person who takes or converts it,
although the person may intend to afterwards repay the amount to the owner.
Stealing Element 2: ‘Takes’
 Not defined in the Code.
 s 391(6) – The act of stealing is not complete until the person taking or converting the
thing actually moves it or otherwise deals with it by some physical act (doctrine of
asportation at common law)
Stealing s391(6)
 Takes or converts: items must be moved or dealt with (asportation)
 Wallis v Lane [1964] VR 293
The accused was a delivery driver, he moved items to a different position on the truck, with
the intention of stealing the items. This was held to be sufficient movement
 When is the act of stealing complete?
 R v Johnston [1973] Qd R 303 at 308,309
 Charged under the party provisions of the Code.
 Held that moving or actual dealing with the thing does not necessarily mean
that the act of stealing is complete and may still be in progress or a continuing
offence.
Element 2: ‘Converts’
 Not defined in Code.
– s 391(6) applies – items must be moved or dealt with
– What is conversion?
– Caxton Publishing Co v Sutherland Publishing Co [1939] AC 178 at 201
– Illich v R (1987) 162 CLR 110 confirmed Caxton Publishing
– Wilson and Dawson JJ (Deane concurring in result and reasoning)
“The question whether a person could, under the Code, steal something already in his lawful
possession, is answered by the express provision that a person may steal, not only by
fraudulently taking something, but also by fraudulently converting it to his own use. Of
course, a person may convert something which is in his possession, although he cannot
convert something which he also owns. That is because conversion in the criminal law at
least involves dealing with the thing said to be converted in a manner inconsistent with the
owner’s rights in the thing.” [242]
 55

 R v Angus [2000] QCA 29

– Pincus JA (Mc Murdo P and McPherson JA agreed)
• Must be more than passive possession
 See also: s 391(4), s391(4A), s391(5)
Things Capable of Being Stolen
s 390: Anything that is the property of any person is capable of being stolen if it is:
(a) moveable; or
(b) capable of being made moveable, even if it is made moveable in order to steal it.
 Anything that is the property of any person
– s 1 Code definition of property
– Moveable or capable of being made moveable
– Billing v Pill [1953] 1 All ER 1064
Lost Property: s 391(5)
391(5) When a thing converted has been lost by the owner and found by the person who
converts it, the conversion is not deemed to be fraudulent if at the time of the conversion the
person taking or converting the thing does not know who is the owner, and believes, on
reasonable grounds, that the owner can not be discovered.
 Lost by the owner
 Found by the person who converts it
 Deemed not to be fraudulent if;
 At the time of conversion, accused doesn’t know the owner; and
 Believes on reasonable grounds the owner can not be discovered.
• Dolby v Stanta [1996] 1 QD R 138 at 139
– Prosecution bears the onus of negativing s391(5):
sufficient to prove accused knew where the owner was or that s/he did not believe on
reasonable grounds that the owner was undiscoverable.
Stealing – Banking
Difficulties have arisen with respect to stealing money in bank accounts and automatic teller
machines.
 R v Davenport (1954) 1 WLR 569
 Kennison v Daire (1986) 160 CLR 129
 R v Mujanen [1994] 2 Qd R 647
S 398 – Penalty for Stealing
• s 398: 5 year maximum
 56

• Special cases set out in 398

– 1 Stealing a will: 14 year maximum
– 9  Stealing property valued at more than $5000: 10 years maximum
– 12 Stealing of a vehicle: maximum 14 years
Receiving Tainted Property
- s 433: offence of receiving tainted property
- s 432: definition of tainted property
Receiving Tainted Property: s 433
Elements:
 1. A person
 2. Received tainted property
(defined in s432)
 3. Having reason to believe it was tainted property.
– Guilty knowledge must be at time of receiving
• R v Patterson [1906]QWN 32
Doctrine of Recent Possession
 Example of circumstantial evidence, applies to stealing and receiving charges.
 Schama v Abramovich (1914) 11 Cr App R 45,49 –presumption of fact, so it is a
matter to be determined by the jury.
 Confirmed in Bruce (1987) ALJR 603
 The accused was in recent possession of the goods.
 Relationship between the goods as found and the goods stolen.
S 408c Fraud
• Read: R v Dillon; Ex parte Attorney-General (Qld) [2015] QCA 155
• Penalty: s408C(2): Liable to 5 years imprisonment; 12 years in special cases.
Elements: s408c(1)(a)(i)
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A person who

Dishonestly

Applies to his or her own use or to the use of any person

Property belonging to another

‘Dishonestly’
Not defined in the Code.
408C(3)(b) - a person's act or omission in relation to property may be dishonest even though:
(i) he or she is willing to pay for the property; or
(ii) he or she intends to afterwards restore the property or to make restitution for the property
or to afterwards fulfil his or her obligations or to make good any detriment; or
(iii) an owner or other person consents to doing any act or to making any omission; or
(iv) a mistake is made by another person; and
408C(3)(c) a person's act or omission in relation to property is not taken to be dishonest, if
when the person does the act or makes the omission, he or she does not know to whom the
property belongs and believes on reasonable grounds that the owner can not be discovered by
taking reasonable steps, unless the property came into his or her possession or control as
trustee or personal representative
‘Dishonestly’ – Common Law Test
• Previously there was some doubt over the test applied in Qld.
• Previously the Court generally followed the test from Ghosh as confirmed in Laurie.
• Now the test has been settled. The test in Queensland is the test set out in Peters and
applied in Dillon.
Dishonestly – Peters
Peters v The Queen (1998) 192 CLR 493
• “In a case in which it is necessary for a jury to decide whether an act is dishonest, the
proper course is for the trial judge to identify the knowledge, belief or intent which is
said to render that act dishonest and to instruct the jury to decide whether the accused
had that knowledge, belief or intent and, if so, to determine whether, on that account,
 58

the act was dishonest. Necessarily, the test to be applied in deciding whether the act is
done is properly characterised as dishonest will differ depending on whether the
question is whether it was dishonest according to ordinary notions or dishonest in
some special sense. If the question is whether the act was dishonest according to
ordinary notions, it is sufficient that the jury be instructed that that is to be
decided by the standards of ordinary, decent people. However, if “dishonest” is
used in some special sense in legislation creating an offence, it will ordinarily be
necessary for the jury to be told what is or, perhaps, more usually, what is not meant
by that word. Certainly, it will be necessary for the jury to be instructed as to that
special meaning if there is an issue whether the act in question is properly
characterised as dishonest [As in Salvo].”[44]
‘Dishonestly’ – Current Test
Current Test
Following the unanimous decision in R v Dillon; Ex parte Attorney-General Qld [2015] QCA
155. The test to be applied is Qld has now been settled.
Point of Law referred:
“To satisfy the element of dishonesty [in s 408C Criminal Code] does the Crown have to
prove that:
(a)  what the accused person did was dishonest by the standards of ordinary honest
people; and
(b)  the accused person must have realised that what he or she was doing was
dishonest by those standards?”
This question was answered “No”.
Fraud – Dishonestly
R v Dillon
• “  As “dishonestly” in s 408C has its ordinary meaning, this Court must follow the
meaning given to “dishonesty” by the High Court in Peters and Macleod. Despite the
previously settled approach in Queensland since 1987, Queensland Courts must
now construe the term “dishonestly” in s 408C as requiring the prosecution to
prove only that what the accused person did was dishonest by the standards of
ordinary honest people. To secure a conviction, the prosecution need not prove that
the accused person must have realised that what he or she was doing was dishonest by
those standards. This construction works harmoniously with the defence provisions of
the Criminal Code, particularly s 22(2), so that, where there is evidence that the
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accused person had an honest belief that he or she was entitled to act as he or she did,
to secure a conviction the prosecution must disprove the honest belief beyond
reasonable doubt.” [48]
s408c Applies
Meaning of Applies:
- has to involve ‘utilising for their own purpose’
See Easton v R [1994] 1 Qd R 531, 534-5
Extended Definition of ‘Property’
Property- extended definition s408C(3)(a)
For the purposes of this section:
(3) (a) property, without limiting the definition of property in section 1, includes credit,
service, any benefit or advantage, anything evidencing a right to incur a debt or to recover or
receive a benefit, and releases of obligations;
(d)  persons to whom property belongs include the owner, any joint or part owner or owner in
common, any person having a legal or equitable interest in or claim to the property and any
person who, immediately before the offender’s application of the property, had control of it;
and
See Allard [1988] 2 Qd R 269
Dishonestly Applying Money in Bank Accounts
 See:
– R v Jell [1991] 1 Qd R 48
– Saba (unreported, Qld CA 2/9/94)
– Capewell v R [1995] 2 Qd R 64
– R v Johnson [2007] 2 Qd R 74
Obtaining Property and Similar Offences
• See ss408C(1)(b)-(h)
• Obtaining s408C(3)(e),(f)
Forging and Uttering s 488 – don’t bother
• s488 Forgery and uttering
(1) A person who, with intent to defraud—
(a)  forges a document; or
(b)  utters a forged document;
commits a crime
‘Forge’ s 488
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forge a document, means make, alter or deal with the document so that the whole of it or a
material part of it—
(a)  purports to be what, or of an effect that, in fact it is not; or
(b)  purports to be made, altered or dealt with by a person who did not make, alter or deal
with it or by or for some person who does not, in fact exist; or
(c)  purports to be made, altered or dealt with by authority of a person who did not give that
authority; or
(d)  otherwise purports to be made, altered or dealt with in circumstances in which it was not
made, altered or dealt with.

‘Document’ s 488
document includes—
(a)  anything on which there is writing; and
(b)  anything on which there are marks, figures, symbols, codes, perforations or anything else
having a meaning for a person qualified to interpret them; and
(c)  a record
‘Utter’ s 488
• utter means and includes using or dealing with, and attempting to use or deal with,
and attempting to induce any person to use, deal with, or act upon, the thing in
question.
• See s484 definitions
• See s 643 Intention to injure, deceive or defraud.
s 514 Personation
Personation in general
(1) Any person who, with intent to defraud any person, falsely represents himself or
herself to be some other person, living or dead, real or fictitious, is guilty of an
offence which, unless otherwise stated, is a misdemeanour, and the person is liable to
imprisonment for 3 years
(2) If the representation is that the offender is a person entitled by will or operation of law
to any specific property, and the person commits the offence with intent to obtain
such property or possession thereof, the person is guilty of a crime, and is liable to
imprisonment for 14 years.
Meaning of personation: R v Kake [1960] NZLR 595
 61

Week 13 – Drug Offences

Contents
• Part 1: The Statutory Context:
– Interaction of the Drugs Misuse Act 1986 (Qld) and Drugs Misuse Regulation
1987 (Qld)
– Range of offence creating provisions, schedules and penalties
• Part 2: Possessing dangerous drugs [s.9]
• Part 3: Producing dangerous drugs [s.8]
• Part 4: Supplying dangerous drugs [s.6]
• Part 5: Trafficking in dangerous drugs [s.5]
Interaction of Statute and Regulation
- Drugs Misuse Act 1986 (Qld)

-
- Drugs Misuse Regulation 1987 (Qld)
- Classification of drugs & prescribed quantities
- Schedule 1 – Dangerous Drugs
- Schedule 2 – Dangerous Drugs
- Schedule 3 – Specified Quantities For Particular Dangerous Drugs
 62

- Schedule 4 – Specified Quantities For Particular Dangerous Drugs

- Schedule 5 – Dangerous Drugs
Schedule 1 – Dangerous Drugs
s.4 Act: “dangerous drug” - a thing specified in Schedule 1 or 2 of the regulation- and where
the thing specified is a plant - any part of that plant. Can also be a derivative of the thing (eg.
a salt)
Drugs Misuse Regulation 1987
• Amphetamine
• Cocaine
• Heroin (Sch3 2g - Sch4 200g)
• Lysergide (Sch3 0.004g - Sch4 0.4g)
• Methylamphetamine
• 3,4-Methylenedioxymethamphetamine (MDMA)
• Paramethoxyamphetamine (PMA)
• Paramethoxymethamphetamine (PMMA)
• Phencyclidine
Schedule 2 – Dangerous Drugs
• Allobarbital
• Cannabis
• Coca leaf
• Codeine other than where it is compounded with 1 or more other medicaments in such
a way that it can not be readily extracted
• Diazepam
• Phenobarbital
• Testosterone, other than in implant preparations for growth promotion in animals
• Oxycodone
• Opium
• Morphine
• Methadone
• Lysergic acid
• Ephedrine
Part 2 – Drugs Misuse Act 1986 (Qld)
S 9 Possessing Dangerous Drugs
 63

Possession of a Dangerous Drug

s.9. A person who unlawfully has possession of a dangerous drug is guilty of a crime.
Maximum penalty— see Schedules.
Actus reus
“Has possession”
s.116 The Criminal Code shall, with all necessary adaptations, be read and construed with
this Act. - So can use Code definition of possess.
s.4 Code - defines possession:
• includes having under control in any place
• whether for use or benefit of another
• even though another person has actual possession or custody of the thing
Types of Possession Recognised: Code s 1
1. Actual - physical control or custody, manual handling + knowledge
2. Constructive - control, intention to control or claim of right + knowledge – Lai v The
Queen (1989) 42 A Crim r 460
3. Joint - consent to possession, or joint intention to possess + knowledge – Davies v
Western Australia (2005) 30 WAR 31
– Possession based on the notion of actual or potential control
– No need to establish ownership as such
 64

In addition:
- s 129(1)(c) DMA includes presumption of possession
- Proof that a dangerous drug was at the material time in or on a place of which that
person was the occupier or concerned in the management or control of - is conclusive
evidence - that the drug was then in the person's possession - unless - the person
shows that he or she then neither knew nor had reason to suspect that the drug was in
or on that place
R v McGregor [2009] QCA 308
R v Smythe [1997] 2 Qd R 223
Knowledge Required?
• Yes - Knowledge of the existence of the thing possessed must be proved BRD. No
possession where person is unaware of the existence of the thing or substance Clare v
R. Intention is a necessary element of possession - involving sufficient knowledge of
the presence of the drug by the accused. Williams v R per Atkin J
• But - Knowledge of the nature of the thing possessed i.e. that it is in fact a drug does
not need to be proved. Which means: Defendants will sometimes make a claim of
innocent possession on the basis of the excuses and defences in the Code – then s 129
applies:

• o Knowledge is required 

• Knowledge of the existence of the thing possessed must be proved beyond reasonable
doubt. No possession where person is unaware of the existence of thing or substance.
• Clare v R

•  Intention is a necessary element of possession, involving sufficient knowledge of

the presence of the drug by the accused
• Williams v R per Atkin J

•  But, knowledge of the nature of thing possessed i.e. that it is in fact a drug does not
need to be proved

• • This means, defendents will sometimes make a claim of innocent possession on the
basis of the excuses and defences in the code

• o S 129 then applies

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Claim of Innocent Possession?

s.129 In respect of a charge against a person of having committed an offence defined in Part
2 (traffic, supply, possess) —
(d) The operation of the Criminal Code s 24 (mistake of fact) is excluded unless that person
shows an honest and reasonable belief in the existence of any state of things material to the
charge; and
(e) The burden of proving any authorisation to do any act or make any omission lies on that
person
– Crown needs to prove knowledge of existence of the thing possessed
– Accused needs to provide evidence of mistake of fact i.e. 1) Honest
(subjective) and 2) Reasonable (objective) belief in a state of things
Clare v R
• Don’t need to know that it is a dangerous drug just intend to possess a thing which
turns out to be a dangerous drug . Clare v R - Pincus JA - DMA read in conjunction
with Code, so Crown need only prove intention to possess a certain thing, and that
thing is in fact a dangerous drug. Clare said someone just gave him a white powder to
take to friends in Sydney - he thought it was a perfume ingredient.
Defence of mistake of fact s.24 Code “honest and reasonable but mistaken belief” - must be
reasonable mistake (s 129(d) And the onus is on the accused on a balance of probabilities
See:
• Fitzgerald P 636, 638
• Pincus J 641
• Davies J 644, 645
More Recent Case – Table
Tabe (2005) 225 CLR 418
Facts: Envelope with a fake address containing meth sent through mail. Police intercepted -
substituted for it another envelope with no drugs, but same address. Tabe and Briggs drove
to a post office on Gold Coast where Briggs collected the envelope and took it to a car where
Tabe was waiting. Tabe and Briggs arrested. Briggs pleaded guilty.
Tabe’s argument (Walker SC): “To have aided, counselled or procured the commission of
an offence one must have intentionally participated in the principal offence and so must have
had knowledge of the essential matters which went to make up the offence The decision of
the Court of Appeal would mean a taxi driver who had driven Briggs to the post office to
 66

collect the envelope, which he knew by inference was not empty, would be deemed to be in
possession of a dangerous drug.”
Table Decision
• Gleeson CJ, Callinan and Heydon JJ (McHugh and Hayne JJ dissenting):
– The concept of possession in s 9 of the Drugs Misuse Act did not involve, as
an element, knowledge that the thing possessed was a dangerous drug. The
effect of s 129(d) was to reverse the onus so as to oblige an accused person,
who claimed to be unaware that the thing he or she possessed or attempted to
possess was a dangerous drug, to prove that claim.
Part 3 – Drugs Misuse Act 1986 (Qld)
S 8 Producing Dangerous Drugs

Elements
Elements:
• A person who
• Unlawfully produces
• A dangerous drug
s.4 definition:
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Some Cases – Production and Cultivation

- Cultivate – ordinary natural meaning: “Bestow labour or attention to promote
growth”: includes merely watering : O’Dempsey [1982] Qd R 174
- Preparation – “to make ready or bring into proper state for use by some special or
technical process”:Calabria v The Queen (1983) 151 CLR 670
Cases – Cultivation
- Merely Harvesting part of cultivation -Stratford and McDonald [1985] 1 Qd R 361
- Possessing chemicals for use in manufacture of methylamphetamine: R v Boyd
[2001]QCA 421
Part 4 – Drugs Misuse Act 1986 (Qld)
S 6 Supplying Dangerous Drugs

Elements
1. A person who
2. Unlawfully supplies
3. A dangerous drug
4. To another
 68

Aggravated supply:
s6 (2) if the offender is an adult and supplies:
(a) a minor;
(b) an intellectually handicapped citizen;
(c) within an educational institution;
(d) within a correctional institution;
(e) does not know he or she is being supplied with the thing
DMA s 4 Definition of ‘Supply’

- Pinkstone (2004) 219 CLR 444 – an accused has ‘supplied’ a drug to another person,
once they have knowingly placed the drug in a mail delivery system with the intention
that it be received by the that person.
- Manisco (1996) 14 WAR 303 – ‘Supply’ is broader than just ‘selling’. There is no
need to prove that any price or consideration was paid for the drugs. A Transfer of
proprietary rights by delivery constitutes a supply.
Complicity and Mistake – s6
R v Maroney (2003) 216 CLR 31
 ‘supplies .. to another’
counselled and procured the supply to himself: still to “another” because of s7 of
Criminal Code
Gauci v Driscoll [1985] VR 428
 What if the accused is mistaken about the substance they purport to sell?
 Can a mere offer to sell constitute an act of supply?
Part 5 – Drugs Misuse Act 1986 (Qld)
S 5 Trafficking in Dangerous Drugs
 69

Elements of Trafficking
1. A person
2. Carries on the business
3. Of unlawful trafficking
4. In a dangerous drug
Note – For our purposes, once the element of ‘carrying on a business’ is met – we will deem
the element of ‘trafficking’ to have been also met.
‘Carries on the business’
R v Quaile [1988] 2 Qd R 103
Macrossan J - trafficking means trading in or dealing (single sale can be sufficient if infers
intention to repeat - but generally requires continuity, e.g. ongoing distribution system.
Ambrose J - first transaction of a distribution system is enough) - so a courier can be carrying
on the business (see also Connolly and McPherson JJ in Husseini).
R v Elhusseini [1988] 2 Qd R 442
Indicia of carrying on business is a system (McPherson J at 454):
• advertising
• communicating
• setting up supply lines
• negotiating prices
• soliciting and receiving orders
• arranging deliver times and places
 70

DEFENCES AND EXCUSES

Week 8 – Provocation, Self-Defence, Emergencies, Compulsion

Excuses/ Defences in the Code
 Code does not rely on the common law doctrine of mens rea (“guilty mind”)
 2 types of statutory provisions which remove or reduce criminal responsibility:
1. Specific excuses/defences only for certain offences eg. self-defence, provocation (re
offences against the person)
2. General excuses/defences (Chapter 5 Code) = available for any criminal offence (but
note s 36(2) Code)
Terminology:
- “excuse” = accused raises some evidence but prosecution must negative/disprove
excuse beyond reasonable doubt
- “defence” = accused has to prove the defence on balance of probabilities
 Complete vs. partial relief from criminal responsibility
Provocation: Introduction
 Considered a concession to human frailty – recognises a “snapping point when an
ordinary person may do something that he would not dream of doing under normal
circumstances”: Miller [2009] QCA 11
 Under the Qld CC provocation has 2 distinct functions:
1) a partial defence reducing murder to manslaughter: s 304 [note: now abolished in WA]
2) a complete excuse or exculpation for offences of which assault is an element: ss 268/269
Onus of Proof
 Section 304 is now (since 4 April 2011 amendments) a defence and therefore the
defence must satisfy both the evidential onus and persuasive onus to the standard of
balance of probabilities: s 304(9)
 Section 269 provides for the excuse of provocation (although it is often referred to as
a “defence”, it is in law, an excuse)
Common Elements
 Broadly speaking, 3 elements common to both ss 268/269 provocation and s 304
provocation:
1) Provocative incident
2) Actual loss of self-control by the accused (subjective test)
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3) Ordinary person likely/could have lost self-control and acted in such a way in
response to the provocative incident (objective test)
BUT there are differences in the precise requirements and operation of these elements
between s 268/269 and s 304
Kaporonovski v R (1973) ALR 296 held:
“The definition of provocation in section 268 of the Criminal Code (Qld) is not incorporated
in section 304, whereby a killing on sudden provocation is reduced from murder to
manslaughter. The conditions stated in s 269 cannot be read into s 304 and it is only to the
common law to which reference can be had to determine the circumstances in which
provocation, however, defined, reduces a killing from murder to manslaughter.”
Section 304 Provocation
 Section 304: When a person who unlawfully kills another under circumstances which,
but for the provisions of this section, would constitute murder, does the act which
causes death in the heat of passion caused by sudden provocation, and before there is
time for the person’s passion to cool, the person is guilty of manslaughter only.
Elements of s 304
[There must be an unlawful killing that amounts to murder]
Elements:
1) Provocative incident
2) Killing occurred in the course of an actual loss of self-control by the accused
(subjective test)
3) Could the alleged level of provocation have caused an ordinary person to lose self-
control and act as the accused did? (objective test)
Provocative Incident
Section 268 definition does NOT apply; common law applies
 Provocative incident could be an act or insult (words)
 Cannot be induced by the accused: Peisley (1990) 54 A Crim R 42 at 49
 But note limitations:
- s 304(2) – provocation defence not available if provocation is based on words alone,
“except in circumstances of a most extreme or exceptional character”
 Also s 304(3) re domestic relationships – excludes provocation defence in range of
circumstances e.g. 1 party says they intend to leave the relationship – again, this
limitation does not apply in “circumstances of a most extreme or exceptional
character”
 72

 Note s 304(5) & (6) definition of “domestic relationship”

 Can look at history of violence to decide if “most extreme or exceptional character”:
s 304(7)
Note recent (May 2017) exclusion of provocation in most circumstances of “unwanted sexual
advance” (i.e. removal of what was colloquially termed the ‘gay panic defence’): s 304(4),
(8) & (11)
• Can still be used if there are “circumstances of an exceptional character”
• Can have regard to “history of violence, or of sexual contact” when assessing
“circumstances of an exceptional character”: s 304(8)
• Definition of “unwanted sexual advance” in s 304(11) – includes some examples of
what may constitute “minor touching”
Make sure you’re familiar with the current wording of s 304
Actual Loss of Self-Control
Did the accused actually lose self-control? (subjective test)
 Look for evidence pointing to extreme emotion eg. anger (but could also be fear,
panic, hatred that leads to temporary loss of self-control)
 Consider all the surrounding circumstances to determine the gravity of the
provocation to the particular accused – same conduct may be more or less
insulting/hurtful depending on person & context
eg. personal characteristics and attributes of the accused and any relevant past conduct
between the parties (to determine the gravity of the provocation)
See R v Buttigieg (1993) 69 A.Crim R 21; Stingel (1990) 171 CLR 312
Actual Loss of Self-Control: Timing
 the accused must have acted in the “heat of passion caused by the provocation and
before there is time for the passion to cool.” ie. had not regained control and carried
out premeditated act of revenge
 suddenness relates to the provocation and not necessarily to the response by the
accused
 Immediate response not required – provocation not necessarily excluded by some
interval between provocative incident and response: Pollock (2010) 242 CLR 233 at
[54]
 Note also the battered spouse syndrome, in which the fatal act may occur some time
after the last act of the victim
Objective Test
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 Could or might the ordinary person (of that age) subjected to provocation of that
level/gravity, have lost his/her power of self-control and acted as the accused did? [eg.
by stabbing]
[Recall that seriousness/gravity is assessed from the perspective of the accused, considering
all personal characteristics]
 An objective test – if immature, age is relevant but no other personal characteristics
are attributed to “ordinary person”
 Ordinary person is expected to have ordinary human weaknesses and have self-
control at the same level as ordinary citizens
 Proportionality of response is not a separate requirement for s 304 but may be relevant
to both actual loss of self-control (element 2) and to ordinary person test (element 3) –
see Johnson (1976) 11 ALR23 at 38
 Is test about the accused’s precise response (Qld Supreme Court benchbook) OR
about forming an intent to kill/do GBH? (Green)
 Despite criticisms of the ordinary person it remains the current law in Australia
 READ Stingel; Masciantonio (1995) 183 CLR 58; Green
Other Issues
 Section s 304(8) provides if more than one person is charged with the murder then
just because one of the parties can rely on 304 to reduce murder to manslaughter it
does not affect the liability of any of the others to be convicted of murder.
 Section 304 may be raised when accused kills someone other than the actual
provocateur (eg. someone next to the provocateur in a group) – see Pangilinan [2001]
1 Qd R 56 at 65 onwards
S 269 Provocation – Section 269(1)
 A statutory innovation – common law did not have equivalent excuse of provocation
re assault
 Section 269(1): A person is not criminally responsible for an assault committed upon
a person who gives the person provocation for the assault, if the person is in fact
deprived by the provocation of the power of self control, and acts upon it on the
sudden and before there is time for the person’s passion to cool, and if the force used
is not disproportionate to the provocation and is not intended and is not such as is
likely, to cause death or grievous bodily harm.
Section 269(2)
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 Whether any particular act or insult is such as to be likely to deprive an ordinary

person of the power of self control and to induce the ordinary person to assault the
person by whom the act or insult is done or offered, and whether, in any particular
case, the person provoked was actually deprived by the provocation of the power of
self control and whether any force used is or is not disproportionate to the provocation
are questions of fact.
Section 268/269 Provocation: Elements
(1) provocative incident within the definition in s 268 (which incorporates “ordinary person”
test)
(2)offender must in fact have been deprived of the power of self control (actual loss of self-
control ie. subjective test)
(3)there must be immediacy of response, that is the person provoked must act upon the
provocation before there is time for the passion to cool.
[Contrast immediacy required under section 268 and 269 with more flexible approach
applied to s 304 provocation]
(4) force used must be proportionate to the nature of the provocation (objective test)
(5) force used was not intended to cause death/GBH (subjective test and inferences to be
drawn from the evidence) and not likely to cause death or grievous bodily harm (objective
test).
Definition of Provocation
Section 268(1) in this section –
 “provocation”, used with reference to an offence of which an assault is an element,
means and includes, except as hereinafter stated, any wrongful act or insult of such a
nature as to be likely, when done to an ordinary person, or in the presence of an
ordinary person to another person who is under the person’s immediate care, or to
whom the person stands in a conjugal, parental, filial, or fraternal relation, or in the
relation of master or servant, to deprive the person of the power of self-control, and to
induce the person to assault the person by whom the act or insult is done or offered.
 (2) When such an act or insult is done or offered by one person to another, or in the
presence of another to a person who is under the immediate care of that other, or to
whom the latter stands in any such relationship as aforesaid, the former is said to give
to the latter provocation for an assault.
 (3) A lawful act is not provocation to any person for an assault [but wrongful acts like
adultery can be provocation]
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 (4) An act which a person does in consequence of incitement given by another person
in order to induce the person to do the act, and thereby to furnish an excuse for
committing an assault, is not provocation to that other person for an assault.
 (5) An arrest which is unlawful is not necessarily provocation for an assault, but it
maybe evidence of provocation to a person who knows of the illegality
Availability of Excuse
 The excuse is limited to offences of which ASSAULT IS AN ELEMENT.
 Case: Kaporonovski v R (1973) 133 CLR 209. The High Court held that the defence
of provocation under ss 268 and 269 only applies to offences in the definition of
which an “assault” is an element.
 What about GBH/wounding etc in which there is usually an assault in practice (ie.
some application of force is involved)?
 New section 314A (unlawful striking causing death) expressly provides that “assault
is not an element of the offence” – see Week 6 lecture
Provocative Incident
 There must be a wrongful act or insult.
Consider: what were the words spoken by the complainant/victim? What were the physical
act/s done by the complainant to the accused prior to the assault which gave rise to the assault
being committed?
 Does the word “wrongful” qualify the word “insult? – see R v Stingel (1990) 171
CLR 3 at 12.
The High Court although not expressing a concluded view in relation to the
provocation provisions of the Queensland and Western Australian Criminal Codes,
ruled in relation to s 160(2) of the Tasmanian Code that the word “wrongful”
should not be read as qualifying the word “insult”.
PROVOCATION OFFERED TO SUCH ORDINARY PERSON EITHER;
 (a) personally or
 (b) to another in his/her presence and that other person stands in one of the following
relationships:
 under his immediate care; or
 conjugal (marriage) parental (father/mother) filial (son or daughter) fraternal
(brother/sister) or
 master or servant
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See recent case – Major [2013] QCA 114 – physically present but did not actually hear the
insult to sister at the time – held: sufficient to be physically present; no requirement of
“awareness” (see paras 46-55)
Actual Loss of Self-Control & Response
 As for s 304, accused must actually lose self-control (subjective test)
 Accused’s response must:
a) Be “on the sudden” ie. immediate
b) Involve force that is proportionate to the nature of the provocation (objective test)
c) Involve force that is not intended to cause death/GBH (subjective test and
inferences to be drawn from the evidence) and not likely to cause death or grievous
bodily harm (objective test)
Ordinary Person Test
 The High Court in Masciantonio (1995) 183 CLR 58 has indicated that the
application of the ordinary person test is an objective test
 It is the standard of conduct required of the community of the ordinary person who
bears only the characteristic of the age of the accused
 Any other attribute or characteristic of the accused may be taken into account for the
purpose of determining the gravity of the provocation offered to the accused
 Note: s 268 test is whether “likely” to cause ordinary person to lose self-control –
contrast with s 304 standard of “might/could” – which is the more stringent test?
Provocation: Summary
 Section 304:
- is a partial defence only relevant re murder
- accused bears both the evidential and persuasive onus of satisfying the tribunal of fact
to the standard of balance of probabilities
- reduces murder to manslaughter
 Sections 268/269:
- provide a complete excuse re offences in which assault is an element
- once some evidence is raised the Crown must negative the operation of the excuse
beyond reasonable doubt
- if Crown cannot negative, the assault is justified or excused – meaning the accused is
acquitted
Defensive Force: Overview
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 Factual situations where a person is required to act on their own initiative to either
protect themselves, another person or their property from an unlawful attack
 Section 271 - self defence by a person against an aggressor in the situation where the
person protecting him/herself was not the instigator of the incident
 Section 272 – self defence by a person who has in fact instigated the incident but
during the course of the incident fears for their own life to use lethal force under
certain circumstances
 Section 273 - aiding another person who is being attacked
 Sections 274-278 - using force to protect a person’s property from an unlawful attack
by another
 Section 267 –force in defence of a dwelling
 Section 270 - force to prevent repetition of an act/insult which by its nature amounts
to provocation
Section 304B – killing for preservation in an abusive domestic relationship
– introduced in 2011 - reduces murder to manslaughter
Note: Key sections are ss 271, 272
Distinguishing Between Provisions
3 key provisions:
- s 271(1): accused responds to a minor unprovoked assault
- s 271(2): accused responds to a major unprovoked assault
- s 272: accused responds to a major provoked assault
[Note: no protection if accused provokes a minor assault – not entitled to respond]
* Judge may need to direct jury in relation to more than 1 provision eg. s 271(1) & (2) if
unclear whether minor or major
 All 3 provisions provide complete exculpations ie. if raised and not negatived the
accused is acquitted
Section 271(1): Elements
Self-defence against MINOR UNPROVOKED ASSAULT:
1. An unlawful assault by the victim on the accused [minor assault] – limb 1 or limb 2
assault [latter type often relevant in Battered Spouse Syndrome cases)
2. Accused did not provoke the assault [see slide 28]
3. Force used by the accused was reasonably necessary to make effectual defence
against the assault [see slide 29]
4. Force used not intended and not likely to cause death/GBH [see slide 29]
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Section 271(1): Elements 2

Accused did NOT provoke the assault from the victim:
 Could the victim have relied on s 268/269 provocation to excuse their assault on the
accused?
 If YES then accused cannot rely on section 271 [consider s 272 SD against provoked
assault instead]
 If NO then accused can rely on s 271
 Note: s 268 proportionality between the provocation and the retaliation ie. distinction
between provocation for “the assault” versus “an” assault
 See Muratovic [1967] Qd R 15 at 27-28
Section 271(1): Elements 3 & 4
Element 3: Force used by the accused was reasonably necessary to make effectual defence
against the assault:
 An OBJECTIVE TEST - not dependent on the accused’s state of mind
 Look at all circumstances – bearing in mind that the accused cannot be expected to
weigh precisely the exact amount of defensive force necessary
Element 4: Force used not intended and not likely to cause death/GBH:
 Actual result may be death or GBH but the focus is on whether that result was
“intended” or “likely” to happen
 “likely” = higher standard than “possible consequence” in accident : R v Hung [2012]
QCA 341
 See also R v Prow (1990) 1 Qd R 64 per Thomas J at p.68 – therefore s 271(1)
available on a charge of manslaughter
Section 271(2): Elements
Self-defence against MAJOR UNPROVOKED ASSAULT:
1. An unlawful assault by the victim on the accused [same as for s 271(1) – see earlier
discussion]
2. Accused did not provoke the assault [same as for s 271(1)]
3. Nature of the assault such as to cause reasonable apprehension of death/GBH
[objective test – see slide 31]
4. Accused believes [subjective] on reasonable grounds [objective] he/she cannot
otherwise preserve themselves from death/GBH [see slide 31]
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[Note: no additional element that the force used must be objectively “necessary” for defence
– crucial factor is accused’s belief, based on reasonable grounds: R v Gray (1998) 98 A Crim
R 589; R v Wilmot [2006] QCA 91]
Section s271(2): Elements 3 & 4
Element 3: Nature of the assault such as to cause reasonable apprehension of death/GBH
[objective test]:
 Consider the seriousness of the assault by the victim on the accused ie. “Were there
reasonable grounds for an apprehension of death or grievous bodily harm?”
 Can look not only at the immediate issues but also to prior acts which may have
influenced his/her apprehension – relevant in battered woman syndrome cases – see
Secretary (NT case); Lavallee (Canada); Osland (High Court)
Element 4: A belief on reasonable grounds, that he or she cannot otherwise preserve himself
or herself from death/GBH:
 Both subjective and objective components to this element
 History between accused and victim may be relevant: Muratovic 19-20
 Were there other courses of action open to the accused? Eg. less violent retaliation –
but jury warned not to be “wise after the event”: Johnson [1964] Qd R 1 at 13-14.
 Retreat is not specifically required under s 271(2) – “merely an element for the jury to
consider as entering into the reasonableness of the conduct of the accused.” – see
Johnson at 13-14
Section 272: Elements
Self-defence against MAJOR PROVOKED ASSAULT:
1. Accused either initially (a) assaulted victim or (b) provoked an assault [see earlier
discussion]
2. Victim assaulted accused with such violence as to cause reasonable apprehension of
death/GBH [see earlier discussion]
3. Accused believed [subjective] on reasonable grounds [objective] that it was necessary to
use force to preserve themselves from death/GBH [see earlier discussion]
4. Force used by accused was reasonably necessary to preserve from death/GBH ie. was not
excessive force [see slide 33]
Section 272: Elements 4 & Limits
Element 4: the person is not criminally responsible for using any such force as is reasonably
necessary for such preservation although such force may cause death or grievous bodily harm
- Note: this requires an objective assessment of the level of force used [Cf. s 271(2)]
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- ie. was the force used more than was reasonably necessary to save the accused? Were
other courses of action open to the accused?
LIMITS IN SECTION 272(2):
 This protection does not extend to a case in which the person using force which
causes death or grievous bodily harm
 * first began the assault with intent to kill or do grievous bodily harm to some
person NOR
 * endeavoured to kill or to do grievous bodily harm to some person before the
necessity of so preserving himself or herself arose
 Nor in either case, unless, before such necessity arose, the person using such force
declined further conflict, and quitted it or retreated from it as far as was practicable.
[Note: extent of retreat requirement unclear – see Muratovic; Johnson]
Other Defensive Forces
Other provisions:
 s 267 defence of a dwelling: Spajic [2011] QCA 232
 s 270 preventing repetition of act/insult: Major [2013] QCA 114
 s 273 Aiding in Self Defence
 s 274 – defence of moveable property against trespassers
 s 275 – defence of moveable property with claim of right
 s 276 – defence of moveable property without claim of right
 s 277 – defence of premises against trespassers
 s 278 – defence of possession of property
S 304B: Killing for Preservation in Abusive Domestic Relationship
A partial excuse which reduces murder to manslaughter – the onus is on the prosecution to
negative it beyond reasonable doubt (once raised by accused)
3 elements in s 304B(1)(a), (b) and (c) must be considered
Person unlawfully kills another in circumstances where:
(a) the deceased has committed acts of serious domestic violence against the
person in the course of an abusive domestic relationship; and
(b) the person believes that it is necessary for the person’s preservation from
death or grievous bodily harm to do the act or make the omission that cause
the death; and
(c) the person has reasonable grounds for the belief having regard to the
abusive domestic relationship and all the circumstances of the case
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- Contains both objective and subjective elements

Extraordinary Emergencies (s 25)
Subject to the provisions of the Code relating to acts done upon compulsion (s 31) or
provocation (ss 269-70) or in self-defence (ss 271-273), a person is not criminally
responsible for an act or omission done or made under such circumstances of sudden or
extraordinary emergency that an ordinary person possessing ordinary power of self-control
could not reasonably be expected to act otherwise.
Consider:
1. the act must have been done under circumstances of sudden or extraordinary emergency
2. regarding the particular act done – an ordinary person with ordinary self-control could not
be expected to act in a way different from how the accused acted.
Emergencies: Case Law
Classic case - Dudley and Stephens (1884) 14 QBD 273
More recent case examples:
Examples of situations of ‘sudden or extraordinary emergency’, and of acts that may be seen
as objectively reasonable in those circumstances:
 Berbic v Steger [2005] QDC 294 – medical emergency (even if not life-
threatening, if sufficiently distressing) – context of driving without a licence
 Riley v Fuchs [2001] QDC 85 – technical context re breach of fishing
regulation – hypoglycaemic attack
 Moores v Pearce [2013] QDC 32 – driving to obtain medicine for a sick child
 Sheldon [2014] QCA 328 – a recent driving case
Compulsion: s 31
Where a person is ‘compelled’ to do an act which would otherwise be criminal
 Section 31(1)(a): doing an act in execution of the law - Slade [1995] 1 Qd R 390
 Section 31(1)(b): obeying an order of a competent authority which he or she is
bound by law to obey, unless the order is manifestly unlawful - Hunt v
Maloney [1959] Qd R 164
 Section 31(1)(c): when the act is reasonably necessary to resist actual and unlawful
violence threatened to the person or to another person present - Fietkau [1995] 1 Qd R
667; Pickering [2016] QCA 124 (& High Court [2017] HCA 17)
 Section 31(1)(d): act done to save from serious harm threatened - Taiapa v R (2009)
240 CLR 95
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Week 9 – Excuses and Defences 2

Overview
1. Section 23 CC:
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 Act independent of will: s 23(1)(a)

 Accident: s 23(1)(b)
2. Insanity – s 27
3. Diminished responsibility – s 304A
4. Intoxication – s 28
Note: important to understand the scope and relationship between these provisions
Section 23(1)
23 Intention — motive
(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a
person is not criminally responsible for—
(a) an act or omission that occurs independently of the
exercise of the person’s will; or
(b) an event that—
(i) the person does not intend or foresee as a possible
consequence; and
(ii) an ordinary person would not reasonably foresee as
a possible consequence
 BOTH LIMBS of s 23(1) are excuses, so accused has evidential onus but Prosecution
bears persuasive onus (and must therefore disprove beyond reasonable doubt)
 Failure to disprove leads to acquittal ie. a complete excuse
 Where criminal negligence is established, s 23 is not applicable
 Key distinction is between the “act” and the “event”
Section 23(2) & (3)
(2) Unless the intention to cause a particular result is expressly declared to be an element of
the offence constituted, in whole or part, by an act or omission, the result intended to be
caused by an act or omission is immaterial.
(3) Unless otherwise expressly declared, the motive by which a person is induced to do
or omit to do an act, or to form an intention, is immaterial so far as regards criminal
responsibility.
Section 23(1)(a): Act Independent of Will
Was the act voluntary? i.e. Did the accused make a conscious choice to do the act?
Elements:
1. An act or omission
2. That occurs independently of the exercise of the person’s will
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2 key issues:
1. What is the scope of the “act”?
2. What is the meaning of “independently of the exercise of the person’s will”?
The Meaning of ‘Act’
 Historically, diverging views on the scope and meaning of “act”
 Wide view is no longer accepted
 Must distinguish the “act” from its consequences (the “event”): Taiters
 Act is the physical or bodily action eg. forcing a glass into someone’s face
(Kaporonovski); discharging a loaded gun (Falconer)
 The result (eg. death/GBH) is not part of the “act”
Meaning of Independent of Will
 Not defined in the Code
 Falconer at 39: ‘the notion of will imports a consciousness in the actor of the nature
of the act and a choice to do an act of that nature’
 Ask whether the bodily act was voluntary ie. the product of a conscious choice
 Act is independent of will if stems from:
 reflex action/muscular spasm
 sleep walking
 concussion
 hypoglycaemia
 dissociative states triggered by external factors eg. psychological blow, stress,
anxiety and/or fear (see Falconer)

Dissociative States
 Important to distinguish between:
1. INSANE AUTOMATISM – unwilled act is caused by some internal factor (eg. an
underlying mental disease) = s 27 insanity applies (NOT s 23(1)(a) act independent of
will)
2. SANE AUTOMATISM – unwilled act is caused by some external factor (eg.
psychological blow, stress, anxiety and/or fear in response to external stimuli) = s
23(1)(a) act independent of will applies
Note: that s 23(1)(a) does not cover acts stemming from a propensity to surrender to anxiety
or stress
See Falconer
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Section 23(1)(b): Accident

Key points:
1. This second excuse focuses on the EVENT Cf. act
“Event” is the result/consequences of the accused’s conduct eg. the death/GBH/wounding
2. The test for “accident”:
[Note: amended in 2011 to incorporate the common law definition of accident – be aware of
this when reading pre-2011 cases]
Taiters [1997] 1 Qd R 333 at 338 - To exclude accident the prosecution must prove that:
a) The accused intended that the event should occur (subjective) OR
b) The accused foresaw the event as a possible consequence of his/her actions
(subjective) OR
c) An ordinary person in the accused’s position would reasonably have foreseen the
event as a possible consequence (objective)
If prosecution cannot establish 1 of these, then the jury must find the accused not guilty
Possible Consequence
 What does this phrase mean? ie. how likely does the event need to be?
 Taiters at 338: If the outcome of some action is regarded as certain or even just more
probable than not, it cannot legitimately be called accidental. Even if there is a
substantial likelihood although something less than a preponderance of probability
that a particular outcome will occur and the risk of the outcome is voluntarily
accepted by the one acting, it should not, if it results, be called accidental. On the
other hand, something which a reasonable man might think of as no more than a
remote possibility which does not call to be taken into account and guarded against
can, when it happens, be fairly described as accidental.
Qld Supreme Court Benchbook refers to something being foreseeable if it “could happen,
disregarding possibilities that are no more than remote or speculative”.
Section 23(1a): Egg-shell Skull Rule
However, under subsection (1)(b), the person is not excused from criminal responsibility for
death or grievous bodily harm that results to a victim because of a defect, weakness, or
abnormality.
 1997 amendment which re-instates the old common law position (ie reverses
the effect of Van Den Bemd)
 This covers concealed conditions that the victim has
 Reflects the principle that you “take your victim as you find them”
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 Not confined to constitutional/natural conditions – can include abnormalities

resulting from surgical procedures: Steindl (lens implantation)
Insanity
 Section 26: presumption of sanity – “Every person is presumed to be of sound mind,
and to have been of sound mind at any time which comes in question, until the
contrary is proved”
 Section 27: defence of insanity (usually raised by accused – standard of proof is
balance of probabilities):
(1) A person is not criminally responsible for an act or omission if at the time of doing the act
or making the omission the person is in such a state of mental disease or natural mental
infirmity as to deprive the person of capacity to understand what the person is doing, or of
capacity to control the person's actions, or of capacity to know that the person ought not to do
the act or make the omission.
(2) A person whose mind, at the time of the person's doing or omitting to do an act, is
affected by delusions on some specific matter or matters, but who is not otherwise entitled to
the benefit of subsection (1), is criminally responsible for the act or omission to the same
extent as if the real state of things had been such as the person was induced by the delusions
to believe to exist.
[Note: sub-section 2 does not arise often because delusions usually lead to deprivation of 1 of
the 3 capacities in sub-section 1]
Insanity: Elements
Focus is on the accused’s state of mind at the time of the offence
Elements:
1. Accused was in a state of mental disease or natural mental infirmity, so as to
2. Deprive the accused of the capacity to:
a) Understand what he/she was doing OR
b) Control his/her actions OR
c) Know that he/she ought not do the act
 Deprivation of any 1 of the 3 capacities is sufficient
 Usually relies on expert medical evidence – question of law for the judge to decide
whether evidence is capable of supporting insanity – if so, then will direct jury to
consider it
State of Mental Disease & Natural Mental Infirmity
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Focus of s 27 is on malfunctioning of the mind stemming from INTERNAL causes [Cf.

external causes = s 23(1)(a) act independent of will –see Falconer]
 “State of mental disease” – has been defined in various ways in the case-law (see
Kenny discussion at 8.108-8.110)
- Qld Supreme Court Benchbook refers to “a condition that affects the functions of the
mind, its ability to reason, remember and understand”
- Recognised “mental diseases” include:
reactive depression; schizophrenia; epilepsy; delirium tremens
 “Natural mental infirmity” = congenital defects such as arrested/retarded development
(see Rolph)
Deprivation of Capacities
If a state of mental disease/natural mental infirmity can be established, then consider the
EFFECT of that condition on the accused
Does the evidence indicate that it was more probable than not that the condition DEPRIVED
the accused of the capacity to:
a) Understand what he/she was doing? OR
b) Control his/her actions? OR
c) Know that he/she ought not do the act?
3rd capacity is the capacity for “moral judgment”: Porter at 189
- Focus is on ordinary standards of right/wrong, not unlawfulness
 If jury is satisfied of insanity then the verdict is not guilty on account of unsoundness
of mind: s 647 Code
 Mental health legislation provides for detention of person in such instances
Diminished Responsibility: s 304a
 1) When a person who unlawfully kills another under circumstances which, but for
the provisions of this section, would constitute murder, is at the time of doing the act
or making the omission which causes death in such a state of abnormality of mind
(whether arising from a condition of arrested or retarded development of mind or
inherent causes or induced by disease or injury) as substantially to impair the person's
capacity to understand what the person is doing, or the person's capacity to control the
person's actions, or the person's capacity to know that the person ought not to do the
act or make the omission, the person is guilty of manslaughter only.
 (2) On a charge of murder, it shall be for the defence to prove that the person charged
is by virtue of this section liable to be convicted of manslaughter only.
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 (3) When 2 or more persons unlawfully kill another, the fact that 1 of such persons is
by virtue of this section guilty of manslaughter only shall not affect the question
whether the unlawful killing amounted to murder in the case of any other such person
or persons.
Key points distinguishing DR from insanity:
1. Only applicable on a charge of murder (Cf. insanity – all offences) to reduce to
manslaughter
2. Refers to “state of abnormality” (Cf. insanity – “mental disease/natural mental
infirmity”) arising from a “condition of arrested or retarded development of mind or
inherent causes or induced by disease or injury”
3. Requires only SUBSTANTIAL IMPAIRMENT of capacity (Cf. insanity – “deprives”
of the capacity)
Diminished Responsibility: Elements
 Accused must show that:
1. At the time of the killing he/she was suffering from an abnormality of mind;
- Different interpretations of “abnormality of mind”: see Rolph; Whitworth
- Benchbook refers to “a state of mind so different from that of ordinary human beings
that a reasonable person would describe it as abnormal” – distinguish from states
within the normal range of human emotions (eg. anger, distress, lack of self-control)
AND
2. This abnormality of mind arose from 1 of the specific causes (ie. arrested or retarded
development of mind or inherent causes or induced by disease or injury); AND
3. This abnormality of mind substantially impaired one of the relevant capacities
- Benchbook: “substantially” does not mean “totally” and does not mean “a slight
impairment” “It is between these two extremes”. See Beiss
Intoxication
FIRST LIMB s28 – s28(1) & (2)
 s28 (1) applies the s 27 insanity provisions only where the intoxication is involuntary
 s28(2) insanity provisions do not apply where the person is ‘to any extent’
intentionally intoxicated
SECOND LIMB - s28(3)
 s28(3) intoxication, whether complete or partial and whether intentional or
unintentional can be considered when the offence includes an intent to cause a
specific result as an element
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First Limb: s 28(1) & (2)

Unintentional intoxication is considered in 3 steps:
1. Was the intoxication unintentional?
- ie. “under circumstances for which he [she] could not be fairly held responsible”:
Corbett [1903] St R Qd 246
eg. unknowingly/unwillingly took a substance
Note: s 28(2) excludes the defence if person “to any extent” intentionally caused themselves
to become intoxicated
2. Did the intoxication disorder the person’s mind?
- Usually medical evidence relied on here to show the effects
3. Did the disordered mind deprive the person of one of the capacities listed in s 27?
[See earlier discussion of capacities under insanity]
 If accused satisfies jury on balance of probabilities of these 3 things the verdict is not
guilty on account of unsoundness of mind: s 647 Code
Second Limb: s 28(3)
Section 28(3): When an intention to cause a specific result is an element of an offence,
intoxication, whether complete or partial, and whether intentional or unintentional, may be
regarded for the purpose of ascertaining whether such an intention in fact existed.
This limb is only relevant for offences that have intention as an element eg. murder, stealing,
intent to do GBH (s 317)
 If, due to intoxication, intent cannot be established it may result in:
a) Responsibility for a residual offence eg. not guilty of murder but guilty of
manslaughter
b) No criminal responsibility for any offence eg. not guilty of stealing and therefore
complete acquittal (because there is no residual offence)
See Crozier

Week 10 – Mistakes & Claims of Right

Mistake – Overview
 Two kinds:
 mistake of law (s 22)
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 mistake of fact (s 24)

 Mistake of law does NOT affect criminal liability (s22(1)), ‘ignorance of the law is
no excuse!’: Iannella v French ((1968) 119 CLR 84; [1968] HCA 14 Windeyer J at
paras 24-30)
 2 exceptions/qualifications to this general rule:
- Honest claim of right with respect to property: s 22(2)
- Contravention of an unknown and unpublished statutory instrument: s
22(3),(4)
 Mistake of fact DOES remove (or reduce) criminal liability: s 24
 Both s 22(2) and s 24 are excuses (not defences)
Mistake of Law – s 22
• Criminal Code s 22(1)
22 Ignorance of the law
(1) Ignorance of the law does not afford any excuse for an act or omission which would
otherwise constitute an offence, unless knowledge of the law by the offender is
expressly declared to be an element of the offence.
Mistake of Law – Rationale for the Rule
 Main justification = expediency. The justice system would not work very well if the
prosecution had to prove that the accused knew the offence
 A mockery of the criminal law would occur if an accused person could break the law
on the basis of erroneous legal advice or a self-serving understanding of the law:
Ostrowski v Palmer per Callinan and Heydon JJ at para [85]
 Also justified on basis of moral/social reasons for recognising conduct is wrong (aside
from actually knowing the specific legal prohibition)
 But for regulatory offences harder to justify rule – purpose is to impose a
responsibility to apprise themselves of the legal status of their conduct
1st Exception to the Rule – Honest Claim of Right
 Code s 22(2):
But a person is not criminally responsible, as for an offence relating to property, for
an act done or omitted to be done by the person with respect to any property in the exercise
of an honest claim of right and without intention to defraud.
 Note that s 36 Code ensures that s 22 Code applies to offences created within or
outside of the Code (but subject to s 36(2))
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 It is a claim to an entitlement in or with respect to property (a claim about the civil

law)
 More than just a claim of freedom to act in a particular manner/to be exempt from the
criminal law
(i.e. not just a belief that you are doing nothing unlawful)
Elements of Claim of Right
Under s. 22(2):
1. Offence relating to property
2. Act done or omitted in relation to property
3. In the exercise of an honest claim of right

4. No intention to defraud
** Not applicable as a general excuse relating to any offence
Elements 1 & 2 – Offences/ Acts Relating to Property
 broad interpretation of the concept of ‘an offence relating to property’, including a
claim of right to act in respect of property (Walden v Hensler [1987] HCA 54;
Waine [2005] QCA 312; Molina v Zaknich (2001) 24 WAR 562)
 Section 1 Code definition of “property”

 Claim to a proprietary or possessory right in property

 Claim to be entitled to act in respect of property
 Honest belief must be that one is legally entitled to do to the property the act which
one is doing
 Belief may come from the consent of the owner OR from a person believed to be the
owner
 Belief may come from a mistake as to one’s own title
** Need to distinguish claim that a person is entitled to act about the property, from a belief
that they are free to do the act
Element 3 – Honest Claim
Needs to be an honest claim, not necessarily reasonable
What types of claim qualify?
1. Claim must relate to an existing entitlement (not a future one) – see Pollard (1962) QWN
13
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2. Not necessary to be grounded in a legal right:

Pollard ; Mueller v Vigilante (2007) 177 A Crim R 506
3. Claim characterised as being claim of immunity from prosecution does not qualify: Olsen
v Grain Sorghum [1962] Qd R 580; R v Cunliffe [2004] QCA 293
4. Claim may be based on claim of another person: Mueller v Vigilante
** If the claim is honest, it can still be outrageous/ completely unreasonable and pass under
the defence if other elements are satisfied
Element 4 – No Intention to Defraud
 Superfluous element given the requirement that the claim of right must be honest
 Definition of ‘to defraud’: to deprive another of property by deceit: Balcombe v de
Simoni (1972) 126 CLR 576)
 A person may resort to unlawful means (even force) to obtain property under an
honest claim of right (R v Jeffrey (2002) 136 A Crim R 7) where appellants convicted
of robbery; Noble v Police (1994) 70 A Crim R 560)
 If the offence contains an element of “intent to defraud”, s 22 Code will not apply
because the prosecution would have proved this element separately
2nd Exception to the Rule – Unpublished Statutory Instruments: ss 22(3)-(4)
Code s22(3):
A person is not criminally responsible for an act or omission done or made in contravention
of a statutory instrument if, at the time of doing or making it, the statutory instrument was not
known to the person and had not been published or otherwise reasonably made available or
known to the public or those persons likely to be affected by it.
(4) In this section—
publish—
(a) in relation to a statutory instrument that is subordinate legislation—means notify in
accordance with section 47 (Notification) of the Statutory Instruments Act 1992; and
(b) in relation to a statutory instrument that is not subordinate legislation—means publish in
the Gazette.
Unpublished Statutory Instruments
 Relatively rarely invoked
 Hogan v Sawyer: Ex parte Sawyer [1992] 1 Qd R 32 per Thomas J at 37
- a prisoner’s conviction of an offence of possessing money in prison contrary to rules
was set aside
- Knowing that he would be in trouble for having the cash was not sufficient
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- Needed to know the substance of the prohibition and that he may be convicted in
Court for the act
** Prisoner knew he would get in trouble, but the specific law wasn’t made available to him
or to the public, so conviction was set aside
Mistake of Fact
s 24 Mistake of fact
(1) A person who does or omits to do an act under an honest and reasonable, but
mistaken, belief in the existence of any state of things is not criminally responsible for
the act or omission to any greater extent than if the real state of things had been such
as the person believed to exist.
(2) The operation of this rule may be excluded by the express or implied provisions of the
law relating to the subject.
 Note that s 36 Code ensures that s 24 Code applies to offences created within or
outside of the Code (but note s 36(2) Code)
 Recall that s 24 often raised re consent in sexual offence cases (e.g. Rope [2010] QCA
194]
Elements of a Mistake of Fact
(1) A person
(2) Does or omits to do an act
(3) Under an honest and reasonable but
mistaken belief
(4) In the existence of a state of things
[The first 2 elements are straightforward; the 3rd and 4th are more complex]
Element 3: Honest but Mistaken Belief
Points to note:
 Honest belief is one genuinely/actually held by the accused (subjective element)
 Intoxication may be relevant to whether the accused’s mistaken belief was honestly
held: R v O’Loughlin [2011] QCA 123 at [34]
 Belief must be one positively held:
i.e. Not mere inadvertence, ignorance or oversight of relevant facts: Clough v Rosevar
(1997) A Crim R 274; G. J. Coles and Coy Ltd v Goldsworthy (1985) WAR 183; Pearce v
Stanton [1984] WAR 359
Elements 3: Belief Must be Reasonable
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 Objective (reasonable – belief is held on reasonable grounds, not what a reasonable

person would have believed)
 Subjective (personal attributes and characteristics of the accused that affect his/her
appreciation or perception of the circumstances and over which they have no control,
for example, age (maturity), gender, ethnicity, physical, intellectual and other
disabilities: Aubertin [2006] WASCA 229
 State of intoxication, cultural, religious and other values are not considered when
assessing the reasonableness of the belief (Aubertin)
 Personal attributes and characteristics are assessed, and then reasonableness is based
on generally accepted community standards

 R v Mrzljak ([2004] QCA 420: in a sexual assault case the intellectual impairment
and language difficulties of the appellant were held to be relevant to assessing the
reasonableness of his belief that the complainant was consenting to the sexual acts in
question
Element 4: Belief in the Existence of Any State of Things
 Excuse is confined to matters of present state of things/fact & excludes beliefs in
relation to consequences of acts: Gould and Barnes [1960] Qd R 283 at 291-2;
 cf Pacino (1998) 105 A Crim R 309 – belief about danger posed by dogs = state of
things or consequences of dogs attacking someone?
Mistake of Fact – Complete or Partial Excuse?
 Accused only relieved of criminal liability to the same extent as if the real state of
things had been such as she/he mistakenly believed them to be: Walker [1980] Qd R
207 at 210
 Scenarios where criminal responsibility for a residual offence would remain?
• There may be scenarios where criminal responsibility for a residual offence would
remain despite the presence of mistaken belief

o e.g. rape of a minor, if the defence could successfully rely on s 24 for mistake of fact in
relation to the issue of consent, the effect is to substitute the mistaken belief into the
scenario as if it were real, which would mean there is consent between accused and the
victim. This means that the accused is deemed to be not guilty of rape due to s 24.
However, because the victim was a minor, the accused may be convicted of the residual
offence of unlawful carnal knowledge of a person under 16 years of age.

Exclusion of s24
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 Mistake of fact may be excluded by the express or implied provisions of the law: s
24(2)
 Note s 36(2) Code
 Matter of statutory construction:
Eg. s 229 - Code Knowledge of age is immaterial (offences against morality in Chapter 22
Code)
Mistake and Subjective Mental Elements (Outside s 24)
 Mistake of fact may operate outside s 24 for criminal offences where the prosecution
has to prove a subjective fault element such as intention
 Eg in murder under Code s 302(1)(a) where the accused thought a shotgun
was unloaded but it was not, there is no intention to kill or do GBH
Distinguishing Mistake of Law from Mistake of Fact
 Distinguishing a mistake of law from a mistake of fact is difficult: Iannella v
French (1968) 119 CLR 84; [HCA] 14 Windeyer J para [27]
 Mistake of fact - where accused is mistaken as to existing facts relevant to the legal
characterisation of their conduct
 Mistake of law - where the accused is mistaken as to the legal effect of existing,
known facts.
 Mistake of mixed fact and law?
Mistake of Fact or Law?
 Bigamy cases: R v Tolson (1889) 23 QBD 168; R v Kennedy [1923] SASR 183;
Thomas (1937) 59 CLR 279
 Sancoff v Holford; ex parte Holford [1973] Qd R 25
 Power v Huffa (1976) 14 SASR 337
 Key High Court case: Ostrowski v Palmer (2005) 218 CLR 493 [contrast with facts in
Australian Fisheries Management Authority v Mei Ying Su (2009) 176 FCR 95]
 Recent driving cases: Cook v Commissioner of Police [2012] QCA 118; Knight v
Raddie [2013] QMC 15
READ THE CASES CAREFULLY!
Exam Questions on Mistake
 Identify the mistakes that have been made
 Consider each mistaken belief separately
 For each mistake, decide whether it is a mistake of law or of fact
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 If a mistake of law, consider whether it falls within the exceptions –

 honest claim of right in regard to property
 unpublished/unknown statutory instruments
 If a mistake of fact, work through the elements, paying particular attention to
the issues that are contentious on the facts

2015 Exam Attempted Answers

Q3a.
 Either rape or sexual assault
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 Rape, either:
 349(2)(a): carnal knowledge w/out consent
 349(2)(b): penetration to any extent w/ anything that is not a penis, without consent
 349(2)(c): penetration of the mouth w/ a penis, without consent
 349(2b) bc he penetrated w/ his finger
 Penetrated vulva, vagina, or anus of another
 Albert penetrated Sally's vagina
 To any extent
 Partially inserted
 With a thing or part of the person's body that is not a penis
 Finger
 Without consent
 Consent given freely and voluntarily by someone w/ cognitive capacity
 Consent is not given freely and voluntarily given in certain circumstances (s
348(2))
 Exercise of authority (Brewer)
 He held a position of power, and was using this to try and
influence her decision
 False and fraudulent representations about the nature and purpose
of the act (Papadimitropolous)
 He implied that some form sexual interaction would secure
her a job that did not exist
 It is unlikely that consent was given, and all the other elements have been fulfilled, however
there may be available defences to consider
 Mistake of fact
 A person
 Does or omits to do an act
 Albert did the act
 Under an honest and reasonable but mistaken belief
 An honest belief is one genuinely/actually held by the accused
 Must be positively held
 Despite never being told 'no', he was not given explicit consent
 Albert may claim that he believed he was given implied consent,
though it would be hard to argue that he was
 Belief is held on reasonable grounds
 In the existence of a state of things
 Albert, at the time of the offence, believed he was given consent at the time
of the incident
 Albert may claim that he was given consent, however based on the facts it would be
hard to assert that Sally gave any form of consent, and there is not reason to believe he
was under a mistaken belief
 There was no honest or reasonable mistaken belief
 It is unlikely this defence would pass, it is unlikely that there would be any other
relevant defences
 

Q3b.
 
Murder
 
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Provocation (s 304)
1. Provocative incident
 Can be an act or insult
 However, provocation is not available if based on words alone except
extreme circumstances
 In this case, it was words alone, however it may be argued that the
circumstances were of an exceptional character
 The insults used against Albert were in regards to the accused sexual acts
 Albert claimed that he had suffered childhood abuse himself
 Despite Albert's history of trauma in relation to sexual abuse, it would be difficult to
argue that the words used by John were of exceptional character
 Especially since as Albert alleged to have committed sexual offences himself
against John's own daughter
2. Actual loss of self control
 Did the accused actually lose self control? Look for evidence of extreme emotion
 Albert claimed to have 'just lost all self control' and claimed to have been 'so, so
angry and hurt'
 As well as this, he strangled John, indicating that he was overcome by rage
 Consider all surrounding circumstances to determine the gravity of provocation
 The insults used against Albert may have been more offensive to him due to
his history of sexual abuse (R v Buttigieg)
 Accused must have acted in the heat of the moment
 It was clear that Albert acted immediately after the provocative incident
3. Ordinary person likely to respond the same way
 Could ordinary person have lost self control and acted as the accused did due to
provocation?
 While an ordinary person would have been extremely angry as the accused
was, acting in such a violent manner may be beyond the level of an ordinary
person reaction
 Proportionality
 Strangling someone or an equivalently violent act is not proportional to
insults of that nature (Johnson)
 An ordinary person probably unlikely to have responded in the same manner
 It is likely that element 2 will be fulfilled, but it is unlikely that elements 1 & 3 will be made
out from the facts on hand, thus provocation would likely not pass as a defence for Albert
 
Accident (murder)
 Prosecution must prove 1 of (3 is easiest):
1. Accused intended the event to occur
2. Accused foresaw the event as possible consequence
3. Ordinary person reasonably foreseen
 An ordinary person would have reasonably foreseen that death/GBH would arise
from strangling someone
 Possible consequence
 Event needs to be no more than a remote possibility to be described as an accident
 In this case, it is less than a remote possibility that death/GBH would occur
 Therefore, it is unlikely that the murder would be considered an accident
 
GBH
 
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Provocation cannot be used as an excuse, as it does not apply to offences where assault is not an
element
 Assault is not an element of GBH
 
Defensive Force
 Distinguish s 271 or 272
 271: not instigated by accused
 Major or minor
 272: instigate by accused
 It is likely that it would be defence under s 271, as calling someone a 'moron' would not
constitute a provoked assault
 From the facts it is unclear Steve saw John's body, due to this it is unclear whether
Steve's attack on Albert was provoked by John's death
 Assume that it was not, as not stated
 Minor unprovoked assault; no evidence to suggest that Albert was likely to suffer death/GBH
from a chair attack, also no evidence of any injuries sustained from the attack, meaning it
would likely not have been severe enough to cause death/GBH
 271(1):
 Unlawful assault
 Limb 1 assault
 Application of force directly or indirectly without consent
 Steve directly hit Albert with a chair, no evidence of consent
 Accused did not provoke assault
 Nope, 'moron' not enough
 Victim could not rely on 271 provocation as a defence for their assault
 Force used by accused was necessary to make an effectual defence
 Use of metal statue is questionable, force may be too excessive
 Accused cannot be expected defensive force needed
 Due to this, it would be difficult to expect Albert to gauge force
necessary
 Force was not intended or likely to cause death/GBH
 Throwing a metal statue at someone's head may be likely to cause
death/GBH
 However, the accused did not intend to cause GBH and it is unclear whether
he even intended to throw it at his head
 The above elements have been fulfilled; it is likely that the excuse of defensive force would
pass, meaning Albert would likely be acquitted of his offence of GBH
 
Q1.
Kev's offences
 Not robbery bc no threat to person
Burglary under s 419(1)
1. Enters or is in
2. Dwelling of another
3. Intent to commit an indictable offence
 Stealing
However, liable under s 419(2, 3 or 4):
 Life imprisonment if entered w:
 Break 419(2): Break threshold is v low (s 418(1)), they opened the door to enter, so
there was a break
 1 or more persons (419(biii)): he was w Jim = 1 other person
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 Commits indictable offence (419(4)): stole coke

 As all 3 forms of aggravated burglary have been committed, Kev would be liable to life
imprisonment, kev committed aggravated burglary
 Jim also bc he aided the offence
 
Arson (Jim)
1. Sets fire to property
 Must prove to have burned some part
 Shelter was burnt to the ground
 Expression extends beyond actual ignition (Joinbee)
 Ciggie butt to the ground starts flames
2. Wilfully
 Requires actual intention OR did a reckless act aware that the result was a likely
consequence (Lockwood)
 Yes, he recklessly threw the ciggie butt into pile of leaves
 He was aware that fire/damage would be likely consequence of durry in
leaves
3. Unlawfully
 Act which is done w/out owners consent = unlawful
 No consent = unlawful
 The elements have been fulfilled, arson = yes
 
Fraud
1. A person
2. Dishonestly
 Ordinary person deem those actions as dishonest?
 Yes
 Accused person realised dishonesty?
 Yes
3. Applies
 Utilising for their own purpose
 Yes, used car and tried to sell it as if it was his own
4. Property belonging to another
 Not his property
 
Other offences not discussed by me:
 Stealing (car)
 Possession (drugs)
 

 
 
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2016 Past Exam Attempted Answers

Q1
 
Property offences:
 Can't be robbery bc no violence used
o Element 4
 Can't be burglary bc not entering a house
o House: dwelling of another
 Committed stealing
o Any person who fraudulently takes or converts anything capable of being stolen (s
391)
 First crime for property offences = Stealing (taking computer from work) (Adam)
o Fraudulently
 Intent to permanently deprive the owner of the thing (s391a)
o Takes /converts
 The items were moved or dealt with (Wallis v Lane)
o Anything capable of being stolen
 Anything that is the property of any person (Billing v Pill)
 Moveable or capable of being made moveable ( s 390)
 Brad = guilty of receiving tainted property (s 443)
o A person
o Receive tainted property
 Defined in s 432
 A thing that has been obtained by way of act constituting indictable offence
o Having reason to believe it was tainted property
 He had guilty knowledge under time of receiving property (R v Patterson)
 Selling computers: converts instead of takes in stealing (Brad)
o Fraudulently
 S 391e
 An intent to deal with it in such a manner that it cannot be returned in the
condition it was initially in
o Takes/ converts
 Converts
 Bc he is selling the computers, he dealt w a thing in a manner said to be
inconsistent with the owners rights (Illich v R)
o Anything capable of being stolen
 Anything that is the property of any person (Billing v Pill)
o Adam was an enabler as he was not at the scene of the crime but assisted in the
crime going forward (s 7)
 Wifi password = stealing (Carl & Adam)
o Fraudulently
 Intent to permanently deprive the owner of the thing ( s 391(1a))
o Takes/ converts
 Converts
 Using wifi in a manner said to be inconsistent w the owners rights (Caxton
Publishing Co)
o Anything capable of being stolen
 Anything that is the property of any person (Billing v Pill)
o Carl executed the offence as he is the one that did the act (s 7)
 102

o Adam was an enabler as he was not at the scene of the crime ( s7)
 For each of the above, say if the offence was made out from the elements, and say if
they would be likely to be found guilty or not (conclude)
 
Drug offences
 Adam: possession of cocaine
1. Actual possession
 He has physical control of the drugs (s 1 of the Code)
2. Knowledge required
 It is clear that he had knowledge, bc he was using the drugs (Clare v R)
 ** intention is necessary element, in this example it is clear that Adam had
intent to possess drugs**
 Carl: supplying dangerous drugs
1. A person who
2. Unlawfully supplies
 Unlawfully gave to Adam
3. A dangerous drug
 Cocaine; schedule 1 drug
4. To another
1. Distinguish why it is only supplying and not trafficking
 No 'carrying on the business' of trafficking
 
Q3.
Below 2 are excuses under s 23
 Act independent of will
 Talk about how Steve was possibly anxious/stressed in the situation, suffered from
external factors
 Has two factors
 Act or omission
 Independent of will
 Could be argued that he was in a dissociative state, triggered by
external factor, however it would be hard to argue that it was sane
automatism (psychological blow, stress, anxiety, fear in response to external
stimuli)
 Accident (unlikely to have to discuss it bc obvious it wasn't)
 Would a reasonable person have foreseen the event as a possible consequence
 How likely does the event need to be?
 Needs to be no more than a remote possibility for it to be an accident
 Eggshell skull rule
 Take them as you see them
Defences
 Insanity
 Don't need to talk about it bc will not help him !!!
 (Can be referenced when mentioning dissociative states), as he has no mental illness
does not apply to him
 Diminished responsibility (changes murder to manslaughter)
 Don't need to bring it up bc does not apply !!! As it refers to condition of arrested or
retarded development
 
Provocation for murder --> manslaughter (defense) s 304
1. Provocative incident
 103

 Can be an act of insult

 However cannot be induced by the accused
 Provocative defence not based on words alone, except in circumstances of extreme
or exceptional character
 Difficult to prove provocative incidence based on words alone, unclear
whether the victim was an extreme or exceptional character
2. Actual loss of self control
 Look for evidence pointing to extreme emotion
 Accused must have acted in heat of the moment for provocation
 15 minutes between heat of moment and murder
 Could say that because immediate response is not required, could argue
that there is a history of verbal abuse
 Could go either way
3. Ordinary person likely/could have lost self control
 Bc the accused was 19 and thus immature, so his level of self control is lower than
that of an ordinary person
 Ordinary person may have lost self control due to years of abuse, but not to the
same extent
 
Provocation for GBH (excuse) s 269
1. Provocative incident/ ordinary person test
2. Actual loss of self control
3. Immediacy of response
4. Force used must be proportionate to nature of provocation
5. Force used was not intended to kill/GBH and was not likely to cause either
 Provocation can only be used for offences in which assault is an element, in GBH assault is
not an element so provocation cannot be used
 
Defensive force (self defence - excuse)
 Distinguish between s 271 and s 272
 271: where accused was not the instigator
 1: minor unprovoked incident
 2: major unprovoked incident
 272: where accused was the instigator
 In this case, Jason approached Steve, Steve insulted Jason
 While it is a verbal insult, Steve is unlikely to be classified as the instigator
 Due to this, it would be s 271
 Now have to distinguish whether 271(1) or 271(2)
 From the facts, it would appear that it was a major unprovoked assault
271(2)
1. Unlawful assault by victim on accused
 It was an unlawful assault; Jason kicked Steve and also placed his foot on his neck
reducing ability to breath
2. Accused did not provoke the assault
 Steve did not instigate the incident
 Could Jason argue provocation for his assault on Steve?
 Nah, Steve merely called the victim a 'muppet', provocation considers concession to
human farilty and whether an ordinary person would have reacted the same way in the
same circumstance (Miller)
 Therefore there is no defence of provocation
 Also did not instigate the assault, it was Jason
 104

3. Reasonable apprehension of death/GBH

 Consider seriousness of assault, would this lead to reasonable apprehension of
death/GBH
 In this incident, Steve feared for his life, Jason placed his foot on his neck applying
pressure
 Reasonable belief if your airways are being blocked you may suffer
death/GBH
4. Accused believes on reasonable grounds there was no other way to preserve themselves
from death/GBH
 Must be a belief on reasonable grounds that their course of actions were the best
available at the time
 Were other courses of action available? (Johnson)
 Based on the facts at hand, it suggests there was no other course of action readily
available to Steve
 Steve was being pinned to the ground, reasonable to believe the only option
available was to injure or harm Jason to preserve his life
 Based on the fulfilment of these elements, it is likely Steve would succeed using a defensive
force excuse under s271(2)
 Therefore he may be acquitted of GBH