Components of Criminal Offences

N.B.
Most criminal law is found in State legislation, and there are often substantial differences
between States. Also, note that crimes relating to terrorism are under Commonwealth
legislation due to a special constitutional arrangement under which the NSW Parliament
has referred its legislative powers to the Commonwealth Parliament.

Problem Questions
1. Burden of Proof

It must first be noted that the burden of proof in all cases is on the prosecution to prove
the guilt of the accused beyond reasonable doubt. This is referred to as the golden
thread of the Criminal Law, as affirmed in Woolmington v DPP (1935) PC.

However, the BOP is now determined by the definition of the defence for the particular
offence. This is particularly so in Drugs offences, where the BOP has been reversed by
Statute so that accused must rebut the presumption of guilt

Persuasive/Evidential
Legal burden

Also referred to as the persuasive burden, the legal burden always remains with the Crown
and requires that the prosecution convince the jury. It also governs the way in which the
judge directs the jury.

Evidential burden
This burden can apply to either party. If there is an issue that a party would like raised
before the jury, then they must produce sufficient evidence for a tribunal to call upon the
other party to answer.

Accused bears an evidential onus to “induce reasonable doubt”

Prosecutions bears an evidential onus of “proof beyond all reasonable doubt”

2. Conditions to be fulfilled

In order to establish whether a crime has been committed, the following conditions must
be fulfilled by the prosecution. A crime is constituted by:
(a) Particular conduct by an accused person
(b) which causes a proscribed effect and
(c) which is done with a guilty mind and therefore with intention, recklessness or
negligence.

The first two of these conditions refer to the actus reus component and the last to mens
rea. Therefore, for a crime to have occurred there must be a coincidence between actus
reus and mens rea.

The prosecution must also refute any defences alleged. (Refer to Burdens of Proof)

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 3. Legal Personhood

HOWEVER, before a conviction can be proven, it must first be established that the accused
is of legal personhood, meaning that they can be held liable for their actions.

All adults are presumed to have the necessary mental capacity to commit a crime.

Insanity
HOWEVER, one can be exempted from criminal responsibility, if it can be shown that they
were insane at the time when the prohibited behaviour took place.

To establish the defence of insanity, the accused must clearly prove that at the time of
committing the act he was labouring under such a defect of reason, from disease of the
mind, as not know the nature and quality of the act he was doing, or as not to know what
he was doing was wrong. (M’Naghten’s Case)

Children
Under 10
Ruled by State legislation and codified in Children (Criminal Proceedings) Act 1987s5:
All children under the age of 10 are treated as incapable of committing criminal offences

Between 10 and 14
Where a child has reached the age of 10 but is not yet 14, they can be held criminally
responsible but it is presumed that they are incapable of wrongdoing.
This presumption must be rebutted before criminal proceedings can be brought against
them. To do this, prosecution must prove beyond a reasonable doubt that the child knew
the act was wrong “as distinct from an act of mere naughtiness or childish mischief”, as
established in C (A minor) v DPP and recognised as part of Australian law in CRH

Corporations
In order to establish what constitutes the mind of a corporation in terms of the mens rea
requirement, one must look to the minds of the highest ranking people of that company.
(Tesco Supermarkets Ltd v Nattrass)

4. Actus Reus

It is important to remember that mens and actus are always offence specific.

In order to establish the existence of the actus reus of a crime, the following must be
established:
a) the conduct of the accused
b) causation
c) proscribed effect
Conduct
Conduct is usually made up of a series or combination of acts carried out by the accused

Voluntariness
This conduct must be voluntary. As was held by Barwick CJ in Ryan v R, an accused is not
guilty of a crime if the deed which would constitute it was not done in exercise of his will
to act. Therefore, there must be a connection between the conscious mind and the bodily
movement, alternatively described as the exercise of the will to act.

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 It is presumed that the acts of the accused were indeed voluntary. However, where the
defendant wants the voluntariness to be put at issue, an evidentiary burden must be
discharged. Where the defendant successfully proves the evidentiary burden, the
prosecution must prove voluntariness beyond reasonable doubt. (See Voluntariness as
a Defence below)

Further, in Ryan, Windeyer J held that the situation, in which the accused placed himself
was a result of earlier, clearly voluntary acts in the chain of events prior to the pressing of
the trigger, which caused the death in this case.

This is problematic because it raises causation issues, if Courts were to move away from the
“snapshot” approach.

This raises an interesting question in cases of drivers “falling asleep at the wheel”, such as
Jiminez v The Queen, where it was held that if a driver who knows or ought to know that
there is a significant risk of falling asleep at the wheel, continues to drive the vehicle, he is
plainly driving without due care and may be driving in a manner dangerous to the public.
But, if he does fall asleep, his actions during the period of sleep are neither conscious nor
voluntary.

Therefore, if the accused knows or ought to know that there is significant risk of the act
occurring if they proceed with course of action, this fulfils the requisite voluntariness.

Note, however, that there is an increasing tendency to consider the involuntary nature of
the act as the defence of automatism. The accused has an evidential onus of proof to
satisfy when it comes to arguing that his or her acts are involuntary. Once this is provided,
the prosecution then has the burden of proving beyond a reasonable doubt that the
accused’s act was voluntary.

Voluntariness as a Defence
Note, however, that there is an increasing tendency to consider the involuntary nature of
the act as the defence of automatism. However, the accused has an evidential onus of
proof to satisfy when it comes to arguing that his or her acts are involuntary. Once this is
provided, the prosecution then has the ultimate burden of proving beyond a reasonable
doubt that the accused’s act was voluntary.

An exception arises once again where an involuntary act is alleged to arise from a “disease
of the mind” under M’Naghten, where the burden of proof based on the balance of
probabilities rests on the accused.

Causation and Proscribed Effect

The conduct of the accused must, at least, substantially contribute to a state of affairs
prohibited by the criminal law, but need not be the sole cause thereof.

Contribution to the cause of the effect must be something more than minimal. In the case
of Cato v R, where Cato was accused of manslaughter after injecting the deceased at his
request with heroin, it was held that the prosecution need not establish that the only cause
of death was heroin provided that the heroin was a cause outside the de minimis range
which effectively accelerated the victim’s death.

This involves a dual test, where it must be proved that:

a) the conduct caused the result in fact AND
b) the conduct caused the result in law

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It is also important to note that the conduct of the accused may consist of a series of acts
extending over some period of time. The accused’s conduct is relevant at any time
provided that the causal connection is still satisfied. (Ryan and Jiminez)

Special Situations
Omissions
Some offences cannot be committed by an omission as distinct from an act.
In order to establish whether a criminal offence can be committed by omission, it is
necessary to look at its definition within the statute that codifies it, rather than appealing
to the general principle.
The question that arises is whether circumstances were such to constitute a duty to act to
save someone’s life.

Status offences
This is a category of crime where the object of criminality is a person’s character,
condition or standing.
In these types of offences, the prosecution does not have to prove any action on the part of
the accused. Rather, criminal liability results from the fact that someone is found in a
particular position.

5. Mens Rea

This refers to a variety of states of mind, including intent, knowledge and recklessness.
The legal requirements as to which state of mind needs to be proved by the prosecution
vary according to the offence, if a mens requirement even needs to be proved at all.

Foundational Principles

1. There are different types of mental states that can apply

2. With any offence, the standard of mens rea required for the particular offence
must be ascertained.
3. Two main categories:
i. Subjective
ii. Objective
4. The mens rea requirement can extend beyond what is required from actus reus and
vice versa

Legislation
Where an offence is defined by legislation, the relevant legislation must be carefully
interpreted in order to decide its legislative intention.

Common Law
If the offence is governed by the Common Law, the mens rea requirement must be
ascertained with reference to relevant precedent. In the case of an offence’s legislative
definition being silent on the question of mens rea, the initial presumption should be that it
is required.

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Concepts to Consider when addressing Mens Rea

Subjective/Objective
It is important to note that mens rea requirements can be either subjective or objective.
Some offences require proof of intent or knowledge, which is subjective, while others
require proof that the accused failed to meet the level of awareness expected of the
reasonable person. The latter is an objective test. This dictates the standard of criminal
liability.

In order to analyse the mens rea of a crime, it may be necessary to divide the actus reus
into the acts per se, the circumstances in which the acts were carried out and the
consequences which resulted from the acts. Here, each element of the act may require a
different mens rea requirement.

Intent
A person is regarded as having intended to bring about a consequence not only when they
wanted it to occur, but also when they were aware that it was virtually definite to occur.
It is irrelevant whether or not a person’s intent to act or bring about a consequence was
premeditated.

This state of mind is more frequently associated with act and consequence
elements in the actus reus.

Intent can be basic, where the accused intended to do the act or specific, which relates to
the consequences of the act.

Presuming intent from natural consequences of acts

In Hawkins, it was reaffirmed that there is no presumption of law that a person intends the
natural and probable consequences of their acts

Even if to a reasonable person the consequence is a probable consequence, it can not be

held as intended if the accused is not subjectively aware of this probability.

If, however, the accused has some awareness of the possible natural consequences, then it
gets a little more complex. On a narrow interpretation of intention, there is no intention if
there is no desire to bring about this outcome. But, on the broader approach favoured by
Brennan in He Kaw Teh any awareness of the accused that the outcome is probable suffices
to prove intent. However, it is also possible to argue that such an awareness is more
properly described as recklessness than intent.

Recklessness
A person is treated as reckless with respect to a consequence if they are aware of a
substantial risk that the consequence will occur, and it is, having regard to the
circumstances known to them, unjustifiable to take that risk. When a person, knowing this,
still takes that risk, their behaviour is deemed to be reckless.

Negligence
In this situation, the accused ought to have considered relevant circumstances or
consequences. The test is based on the standard of care, as to what a reasonable person in
the position of the defendant would have done. (Nydam)

The degree of negligence must be of sufficient magnitude so as to merit criminal

punishment (Nydam) or so as to amount to “wickedness” (Taktak)

Motives
It is important to note that, according to the common law, the motive behind a crime is
irrelevant to criminal liability. It will only be considered at the point of sentencing
discretion after conviction.

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Exceptions to the General Rule
Absolute Liability
In cases of absolute liability, the state of the mind of the accused when committing the
acct is of no relevance. Therefore, there need be no enquiry into the mens rea components
and it is only the actus reus components that need to be proved.

Strict Liability
Where the statutory provisions creating the crime expressly or impliedly provide that the
crime may be committed without any mens rea, proof of actus reus by the prosecution is
sufficient for the offence to be completed.

Defence of an Honest and Reasonable Mistake of Fact

However, there is an exception. If it can be proved that at the time of the act, the accused
had made an honest and reliable mistake of fact, where if the accused had been correct on
the facts, then the offence would not have been made, such as in Proudman v Dayman,
where the accused honestly and reasonably believed that the driver was licensed. If this
arises, the defendant has an evidentiary burden.

Also, where reasonable steps were taken to ensure that things were of a satisfactory level,
this is sufficient to give rise to the Honest and Reasonable. However, due diligence is not
sufficient to give rise to this defence, no matter how much care has been taken to ensure
that no harm occurs.

A mistake of law is also not sufficient to constitute this defence, such as in Pollard v Cth
DPP, where the accused was wrongly advised by his lawyer and subsequently arrested.

Special Areas under Mens

Malice
In order to prove that an act had been done “maliciously”, the prosecution must show
that the accused went ahead and acted in spite of being aware of the possibility that some
physical harm would result.

It is not necessary to prove the accused’s awareness of the probability of harm, nor
realization of the degree of harm actually inflicted.

It is important to note that where a more culpable state of mind, such as intent, is required
to be proven by the prosecution, the requirement to prove a malicious act is often
redundant.

Transferred Malice
This is used to describe the situation where the defendant attacks someone with mens rea
for a particular offence, misses, but nevertheless “accidentally” brings about the actus reus
for the same offence in relation to a different person. In this situation, the mens rea and
actus reus could, essentially, be added together, and the defendant could be convicted of
the offence.

This doctrine has come under some criticism by by the House of Lords, who claim that a
new malice is created if the recipient of the defendant’s malice changes.

Willful blindness
When a person deliberately refrains from making inquiries because he prefers not to
have the results, he may for some purposes be treated as having the knowledge which he
deliberately abstained from acquiring.

Inadvertent Recklessness
This applies to the situation where the accused does not even turn their mind to the
possibility of harm occurring. This arises especially in the context of rape.

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This requirement is interesting in that it blurs the subjective/objective distinction.
Recklessness is technically a subjective requirement but inadvertent recklessness places a
requirement of reasonableness on the theme.

Cases where Legislation is silent as to the Mens Rea requirement

He Kaw Teh
This case stands for the following principles:

Where there is no mention of a mens rea requirement in the Statute, either:

i. There is no mens rea requirement and the offence falls under absolute liability OR
ii. Mens rea is required and the type is to be determined

Mens rea is so fundamental that where there is none mentioned in the Statute, it must be
presumed to be a requirement.
HOWEVER, this presumption can be displaced or rebutted.

To decide whether the presumption can be displaced, the following are relevant:
i. Statutory Interpretation
ii. Subject matter of the offence
iii. Whether the offence would be easier to regulate or enforce if the offence was
strict

The more serious the crime, the more serious the punishment and the more deserving of
that punishment the accused is. Therefore, it is more likely that the Court would feel
comfortable prosecuting on someone’s actual intention in these cases.

6. Coincidence of actus and Mens

In order for an offence to be proven, it must be established that the physical and mental
elements of the crime (according to the particular crime’s requirements) occurred
simultaneously.

The general principle as affirmed in Myers is to adopt the snapshot approach when looking
at the alleged offence.

However, in certain situations, where this rigid interpretation led to a misleading

assessment of culpability, the High Court has recognised the need to be flexible.

Where the accused in Thabo Meli threw the victim off a cliff on the assumption that they
were already dead, it was alleged that there was no intention to kill and thus, there was no
coincidence of actus and mens. In this case, the Court held that it is necessary to take the
series of acts approach and then determine culpability. It would be senseless to allow the
accused to escape the penalties of law simply because they were under a misapprehension
at the stage where harm was actually caused and thought their guilty purpose had been
achieved previously.

This was affirmed in Fagan, where it was held that the actus reus was continual and later
coincided with the mens rea.

Difference between legal and ordinary explanations

See Goodrich article on p 333

Applying Subjective Standards to Mens Rea Requirements

Rape
It was held in DPP v Morgan that in order for accused to be found guilty of rape, the
defendant must have a subjective intention to commit rape and that the rape cannot be
committed if the accused honestly believed that there was consent.

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However, objective standards can be applied as evidence to convince the jury as to the
honesty, with which the belief was held. (Stakes and Difford)

This has been preserved in NSW under Statute where sexual assault requires:
i. Proof that accused knew victim was not consenting OR
ii. Accused was reckless as to whether she was consenting OR
iii. Inadvertent recklessness

Intoxication
In DPP v Majewski, it was held that intoxication can be taken into account to argue that the
accused could not form the necessary mens rea in order to commit a crime. But,
intoxication can only be considered for crimes, which require specific intent.

However, this principle was overturned in O’Connor, where the Court held that intoxication
should be able to be taken into account as one of many circumstances but only applies
where one is intoxicated without any intention of committing a crime.

Legislation
Under Pt 11A of Crimes Act, there has been a statutory return to the principle in Majewski
but intoxication is now considered a special defence. If used, - Accused has evidentiary
burden to satisfy before prosecution must prove beyond reasonable doubt that intoxication
was not such as to negate the existence of the relevant state of mind.

Criminal Activity by Groups

Complicity
This occurs where two or more people co-operate in the commission of a crime and can
lead to a conviction for those who help, plan and prepare for the offence who can be
convicted

Conspiracy
This arises in the situation, where agreements are made to carry out unlawful acts (in the
future), regardless of whether or not they eventuate

Vicarious Liability
This term refers to the doctrine where employers are made liable for criminal offences by
their employees where the acts in question were carried out in the scope of their
employment.

This only applies where a person delegates a public duty to another which is breached by
the other, or where a person is responsible for the crimes of an employee in the limited
circumstances established by authority. A corporation can also be held liable for a crime as
a party thereto where the person committing the crime is part of the “controlling mind of
the corporation. (Hamilton)

However, the corporation can alleged the defences of reasonable precaution and due
diligence (Tesco Supermarkets)

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Theory
Constructing individual guilt and innocence
• Concerned with questions of criminal responsibility
• Unacceptable to convict and punish someone who does not meet the conditions of
responsibility
• Crucial issue is to the extent to which the courts should conduct an inquiry into the
accused’s actual state of mind at the time that the events took place, and who
should be responsible for proving it
• In relation to serious offences, the law has generally insisted on proof not only that
the accused brought about the event, but also that they actually realised what was
going on
• However, there is a backlash, demanding that the law should look at the events
from the perspective of an outsider i.e. a test of reasonableness

Significance of fault
Hart, “Punishment and responsibility” p321
• Seeks to justify why criminal law should investigate into mental element of the
accused
• Refers to “excusing conditions”
Benefits to the individual
• Maximizes power at any time to predict the likelihood that sanctions of the criminal
law will be applied to him
• Individual’s choice becomes one of the operative factors determining whether or
not sanctions shall be applied to him
• The pains of punishment will for each individual represent the price of some
satisfactions obtained from breach of law
• Criminal law respects the claims of the individual and distributes its coercive
sanctions in a way that reflects this respect for the individual
Justification for Fault system
• To determine justification, Hart considers the “Gedan-kenexperiment”, where the
criminal law operations without excusing conditions
• Certainty
Ensures a possible criminal is making a more informed decision about their decision to come
into conflict with the criminal law
• Choice
Allows possible criminal to consider whether they are willing to incur punishment
• Satisfaction
Such a system necessitates that one suffer sanctions without having obtained any
satisfaction from contravening the law
• Hart claims we should not accept excusing conditions

However, people do not always control their own actions and can be affected by outside
genetic or social influence.
• Removing the Mens Rea component could result in the criminal law losing its moral
assertions to punish the bad

Divergence between moral and legal judgments

• Factors taken into account by the criminal law in determining fault are much
narrower than those taken into account when making a moral judgment of a
person’s behaviour
• In Criminal Law, a person’s good/bad motives are not used to determine guilt of the
offence but in the punishment given
• However, Lorrie also argues in “Law and the Beautiful Soul” that lawmakers are
reluctant to acknowledge the relevance of motive as they are inextricably linked
with social causes and thus could be a threat to legal control
• The idea that social context is sometimes taken into account as defence is not
sufficient as they are treated as “secondary and exceptional”

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Public Order
Offensive conduct/language

It must first be established whether the offence occurred in a public place according to the
definition in S3 SOA on pg 1392 of Howie

• Any place, which the public use or is open to the public, whether they are private
premises or a place surrounded by private lands come under the definition (Camp).
• offence of offensive language is made out despite the absence of proof that there
were anyone in the public place to be offended (Stutsel v Reid, Benson)

It must then be decided whether the conduct or language used was offensive enough to
warrant a crime under s4 and 4A. What constitutes offensiveness is not iterated in Statute.
However, it was held in Connolly v Willis that whether language/conduct is offence can be
determined through the use of an objective assessment (reasonable person reflects
community standards) of behaviour/language in context of surrounding circumstances

Swearing
• The Court must be satisfied beyond a reasonable doubt that a reasonably tolerant
and understanding person would be outraged or angered (Ball v McIntyre)

It is important to remember that in Police v Butler the court held that words that would be
legally offensive change over time and therefore the social and historical context must be
considered

Political Protest
• Political protest is not criminal where the reasonable person would not find the
conduct to incite feelings of wounding, anger resentment, disgust or outrage.
• It was argued that someone may or may not agree with the politics of the student,
but a reasonable person would not find the conduct offensive.
• A so called reasonable man is reasonably tolerant, understanding and reasonably
contemporary in his reactions (Ball v McIntyre)

Mens Rea
• The offence at least requires the Crown to prove beyond reasonable doubt that the
accused had voluntarily engaged in the conduct complained of. However, this may
be a reference to the actus reus, instead of the mens rea (Jeffs v Graham)
• However, in Pregelj and Wurramurra, it was held that the mens rea of the offence
requires that the accused intended for the act to be offensive and that this
offensiveness was foreseen by the defendant as a possible consequence
• Further, Pfeifer held that Offensive conduct/language is a strict liability offence,
where the person who hold a reasonable and honest belief that their conduct will
not offend, will not be convicted

Therefore, the standards of the contemporary community and the reaction of a reasonable
person must be considered.

Reasonable excuse
• s4 SOA
• The Onus is cast upon the defendant by s 5(2)
• Consists of objective and subjective considerations, but these considerations must
be related to the immediately prevailing circumstances (Conners v Craigie)

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Blasphemy
• Is the language blasphemy? S574
• Not goddamn bloody likely (Pun!)

Obscene exposure
s5 S0A 1988
“A person shall not wilfully and obscenely expose his or her person”
Max penalty = 10 penalty units or 6 months imprisonment
“Obscenity depends on community standards and as to what were the circumstances on the
day that the defendant walked naked” (Police v Smithson)

Racial Vilification
• Can overlap with offensive behaviour and language
• Anti-Discrimination Act 1977 p829/30 under s20c
• Unlawful but not a crime
 public act (defined s20B), {exceptions (s20C(2))}
 to incite hatred towards, serious contempt for, or severe ridicule of
 person or group
 basis of race (defined s4)
 by means of threatening or inciting others to threaten
 physical harm towards person or group, or property of

Free speech defence

o Coleman v Power considers the question whether the offence of using
insulting words in a public place inconsistent with the implied freedom of
political communication
o Majority held conduct only relates to conduct intended to provoke unlawful
physical retaliation or were the conduct was reasonably likely to do so
o It protects the social environment in which debate and civil discourse,
however, vigorous, emotional and insulting can take place without threats
of actual physical violence
o But, no judge made a ruling on the legislative validity of State laws.

Max penalty for Offensive Conduct = 6 penalty units/3 months imprisonment

Max penalty for Offensive Language = 6 penalty units

Presence in Public Places

 Vagrancy

No longer a crime in NSW jurisdictions

 Consorting

• NSW Crimes Act, s54A p839

 habitually consorts
 persons convicted of indictable offences
 knowledge of this persons conviction
• Koncz v Pope (1982); no exceptions for family
• Consider police discretion re warnings, consorting offence as a useful policing tool
rather than serious offence
• Consorting with terrorists
o Anti-Terrorism Act (No 2) 2004 (Cth) p842

 Public Drunkenness

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 • Welfare based legislation ie. being drunk in public is no longer a criminal offence.
o Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) 846/7 pt 16;
details protocol for dealing with drunk people
• Alcohol free zones
o Establishment; Local Gov Act 1993 ss642-649 p 848
o Breach; Local Gov Act 1993 s642 (1) p 848
o Emergency establishment; Law Enforcement Legislation Amendment
(Public Safety) Act 2005 s87C (1) p848

 Loitering

• Looking at behaviour that is objectively innocent but could be suspected of being

preparatory to more serious criminal behaviourpull crim liability back to law of
attempt.
• Suspicion based on history or reputation
o Crimes Act (NSW) s546 B (1) p850; person who
 convicted of indictable offence
 found in or near
 premises or public place
 intent to commit an indictable offence
• Possession of items
o Crimes Act (NSW) s114(1) p 850; a person who
 armed with any weapon or instrument (lawful use? take in to
account on a case by case basis)
 intent to commit an indictable offence
or
 possesses implement of housebreaking or safe breaking etc
 without lawful excuse
or
 blackened face or otherwise disguised or possession of means to do
so
 intent to commit an indictable offence
or
 enters or remains
 in or upon any part of building or land
 intent to commit a felony or misdemeanour in or upon the building
• Knife possession
o SOA 1988 s11C; a person who
 has no reasonable excuse (see list of excuses p850/1) (self defence
not an excuse)
 has in custody a knife
 public place or school
o s29A(1); issue an infringement notice if first offence
o Search powers; LEPRA 2002 P851; police may search when;
 person is in a public place or school
 suspect on reasonable grounds (inc location having high incidence
rates of violent crime)
 custody of dangerous implement
• Move along powers
o Part 14 of LEPRA (2002) p 853; power to give reasonable directions in public
places when officer on
 reasonable grounds
 relevant conduct is one of the mentioned on p 853
o Part 14 of LEPRA (2002); requirements relating to direction
 reasonable in circumstances
 purpose of reducing/eliminating relevant conduct

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• No loitering zones
o Creation via Local Gov Act 1993 s 632(2)(e) p857
 public place
 prohibit anything
• Children
o Children (Protection and Responsibility) Act 1997 p857, operates only in areas
declared by A-G
o Welfare approach, not criminal. Police discretion to remove children from
public places
 believe on reasonable grounds that
 no supervision or control
 responsible adult
 public place
 circumstances place person at risk
 child under 16
o Risk?
 physical harm or injury
 abuse
 about to commit an offence

 Unlawful Public Assemblies

• Public assemblies covered by SOA 1988 Pt4 (ss22-27) p863

o Procedure required to gain permission for a public assembly or procession
o s24 p863; if public assembly is authorised then a person involved cannot
be for the purpose of participating in a public assembly be guilty of an
offence relating to participation in an unlawful assembly
o Under what basis should police grant authorisation? Commissioner of
Police v Rintoul (2003) p863

• Is there a public assembly?

o Have there been any wrongful acts (Hubard v Pitt)
 Unlawful assembly
 Trespass
 Hindering people
 Offensive or violent behaviour
 Obstructing people or traffic
 Riot or affray
o Is the assembly unlawful?
 S545C- any assembly with >5 people whose common object is to compel
any person to do acts not legally bound to do or abstain from what the
person
 Mere presence of people may intimidate people (Black v Corkery)
o Is the assembly authorised?
 S23
 If assembly is authorised and is within the plans of the assembly, a
person cannot be held of unlawful assembly or obstruction of any persons
 Will there be a breach of the peace or is it an act of political
communication (Rintoul)

 Riot and Affray

• Crimes (Amendment) Act 1988

• Riot? s93B p867; charge individual with riot when;
 12 or more people who

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 Threat or use of violence [accused used violence]
for a common purpose (which can be inferred from conduct)
 intended or aware that
 cause fear (to a person of reasonable firmness)
• Affray? s93c p 867; charge individual with affray when;
 if 2 or more people then conduct taken together
 threaten or use unlawful violence (not just words)
 such as would cause fear (person of reasonable firmness)
 intended or aware
• Violence? s93A p867
 any violent conduct
 except when talking of affray, includes violent conduct towards
property
 towards persons
 not restricted to conduct causing or intended to cause injury or
damage
• You can be charged singularly, need not be an individual identified act.
• The group can be liable for the act of an individual
Mens Rea
• 93D
• Must establish an intention to use violence or awareness that their conduct may
be violent

• Is it violent disorder?
o >3 persons
o s11A SOA

 Trespass

• InclosedLands Protection Act 1901, ss4 and 4A p871

o enter or remain
o inclosed land
o without consent of/ after request to leave by owner, occupier or
person apparently in charge of those lands
o without lawful excuse
• Inclosed lands?
o Defined by s3 p871 as;
 prescribed premises, or
 any lands, public or private, inclosed or surrounded by…by
which its boundaries may be known and recognised
o Dearing v Passi (1994); If an object is found to be a ‘natural feature’
by which the land may be known or recognised then it is inclosed.
The area need not be fully fenced.
• Exclusive possession of the land?
o DPP v O’G (1999); “Inclosed lands of any other person” does not mean
an exclusive right to possession of those inclosed lands. A contractual
licence to occupy is sufficient.
• Occupier?
o McDermott v Bogg (1991)
 Joint possessor can sure individually for trespass
 Lessee may have cause of action against lessor
 Relevant time…immediate supervision and control over the
relevant premises and the power of permitting and prohibiting
entry

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 • Lawful excuse?
o Darcey v Pre-Term Foundation Clinic (1983) p 874; lawful (not
reasonable) excuse for trespass;
 to prevent a murder
 to follow a felon if he just committed a felony (to arrest him)
 if a felony was about to be committed, and would be
committed unless otherwise prevented
 if accused can establish a reasonable but mistaken belief that
he had a right to enter the premises, which if true, would have
given him such a right
o Bacon (1977); necessity is not lawful excuse
o O’Donohue v Willie (1999); Having no intention to be unlawful does
not constitute a lawful excuse.
o Willis v Wilkinson (1994); further rejects reasonable excuse (public
interest) argument

 Property Damage

• Crimes Act s195 p 881; malicious damage to property

 Malicious
 Destroy or damage
 property
 belonging to another (or to that person and another)
• Crimes Act s200 p 882; anticipatory offence of the above
 possession, custody, control of article
 intention
 maliciously
 destroy or damage property
 belonging to another, or the accused and another
• Damage?
o Samuels v Stubbs (1972);
 Circumstances in each case, the article in question, the
mode in which it is treated
 includes injury, mischief, harm done to property
 unnecessary to show such damage as renders the property
useless or prevented from serving its normal function
• Malicious?
o Crimes Act s5; includes acts of
 malice
 without malice but indifference to human life
 intent to injure
 recklessly or wantonly
o Kippist v Parnell (1998); must prove actual intention to cause injury
to property
• Sabotage?
o Crimes Act s203B p882; creates offence of sabotage
 conduct
 cause damage
 public facility
 intention to cause extensive destruction or major economic
loss

• Other specific property damage in SOA 1988, see page 884

 Fountains

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  Shrine, monuments and statues
 Bill posting and graffiti

Drugs
Legislation

Poisons and Therapeutic Goods Act 1966

Drug Misuse and Trafficking Act 1985

Summary Offences
DMTA
possession
self-administration
possession of equipment for administration
commercial supply or commercial display of waterpipes
administration to others
permitting someone else to administer drugs to you

 Possession?

Summary offence but also a means of proving indictable offence of supply (s26
possession of certain quantities deemed to be possession for supply)
• s10(1) of DMTA; guilty of possession
 prohibited drug
 possession
• Physical control?
o DMTA; s7
 “in the order or disposition of a person”
o Filippetti (1978) p939; possession- need to prove
 individual, exclusive control
 beyond reasonable doubt
o Dib (1991); not in possession but on premises? possession-
 legal right to exclude all persons from the premises in which the
property is situated
o Delon (1992); hidden? Possession-
 hidden so accused be able to take physical custody when they
wished
 unlikely to be discovered by others except by accident
• Awareness? MENS REA
o He Kaw Teh (1985); possession requires awareness;
 knowledge of existence and nature or

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  knowledge of likely existence and nature
 beyond reasonable doubt
o Baird (1985); possession
 believed the substance was illegal (even if it wasn’t)
o Lau (1998) ; possession of quantity requires full mens rea
 know or believe that the amount was not less than a certain
quantity
• Minute Quantities?
o Williams (1978) p942; possession if substance was invisible to naked eye?
 No
 Did accused even have mens rea (knowledge) if substance was such
a small quantity?  No

Indictable Offences

 Prohibited drugs?

• DMTA (p944)
o manufacturing/producing prohibited drugs or knowingly taking part (s 24);
o supplying or knowingly taking part in supply (ss 23(1)(b), 25);
o possessing precursors with intention to use them in the manufacture or
production of a prohibited drug (s24)

 Prohibited plants?

• DMTA; (p944)
o cultivating or knowingly taking part in cultivation of a prohibited plant (s 23);
o supply or knowing take part in supply
o having a prohibited plant in your possession (s 23).
o cannabis, coca, opium, poppy pants (s23)

 Precursors?

• DMT Regulation 2000 s 24a p945; offence

 possession of precursors
 intent to use to
 manufacture of drugs

 Deemed drugs?

• DMTA; p945; if a substance (or plant) is

 for purpose of supply
 represented (verbally, in writing or by conduct)
 as being a prohibited drug
then for the purposes of the act is deemed to be a prohibited drug (or plant)

 Manufacture and production?

• DMTA (see above)

o s6; “takes or participates in any step…in the process of manufacture”
o Thomas (1993); statute does not refer to acts preparatory to the process of
manufacture (eg transporting materials)

 Supply?

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 • DMTA (see above)
o s3; supply includes-
 sell and distribute
 agreeing to supply
 offering to supply
 keeping or having in possession for supply
 sending, forwarding, delivering or receiving for supply
 authorising, directing, causing, suffering, permitting or
attempting any of the above acts
• Clarifications in Carey (1990); supply
 is not merely transfer of physical control
 is not the deposit with another for safekeeping
 those returning drugs can be found as accessories if the
person they return them to intends to supply them to
others
• Agreeing to supply (conspiracy or supply?)
o Supply; Carusi (1990) Where
 sale from one (seller) to supply
 to another (buyer) to be supplied
o Conspiracy to supply; Carusi (1989) where
 A supplies drugs to B but has agreement with B for on
supply to third parties

• Offer to supply
o Dendic (1987); mens rea requirement
 intention must be intended by offeror to be regarded
as genuine by offeree
 Addison (1993) need only prove an intent to agree, not
an intention to honour the agreement
• Sending
o Pinkstone (2004); sending;
 does not require drugs to be received by anyone

 Knowingly take part in manufacture/ production/ supply?

• DMTA (see above)

o s6; taking part includes
 taking,
 participating
 causing any step
 of the process
 arranging finance for that step or
 providing a premises in which that step takes place
• Knowledge?
o Karam (1995) can establish ‘knowingly’ by
 knew or aware that the commodity was a drug,
or alternatively
 intention to manufacture/supply etc. (actual
knowledge or a belief or an awareness of the
likelihood that it was a prohibited drug)
o Provide premises? Ruiz-Avila (2003); requires
 actual knowledge of the presence of the drug on
premises

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 Inciting supply?

• DMTA (see above)

o s27; offence to
 aid, abet counsel, procure or incite
 a person
 to commit any of the indictable offences
• Incite?
o Eade (2002); incitement involves
 to bring about that
 the other person is
 induced to
 become ready, willing and able
 to make the supply
(that is where A seeks supply from B who is not understood by A to be ready, willing
etc to supply, and consequently incites B to do so)

 Deemed supply? Trafficable quantities

• DMTA; if in possession of trafficable quantity presumed possession for supply

o Trafficable quantities on page 952
o irrelevant whether amount is pure or mixed
• Accused must prove that possession was for other than supply; a legal burden, not
evidentiary.

 Ongoing supply?

• DMTA
o s25A; offence of ongoing supply committed when
 supplying
 three or more separate occasions
 any period of 30 consecutive days
 prohibited drug (other than cannabis)
 for financial or material rewards
o No double jeopardy for same set of facts
o Jackson (2004); must be for gain of the accused

 Specifying drug quantities and penalties

• DMTA
o Pages 954/5 v important. NB drug type and quantitytype of
quantitypenalty

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20
Policy Questions
a) Should activities of this nature should be seen as criminal at all? Is the creation
of the suggested new offences the best way of responding to these
disturbances?

Morality- W Blackstone public/private

• Every public offence is a public wrong and affects the individual, as it
affects the community
• Law act to secure the benefit to the public of preventing or punishing every
breach and violation of laws
• For criminal law to apply, there must be a harm done to society
Morality- P Devlin
• Should criminal law prohibit forms of conducts because they are immoral
Harm- JS Mills, I Hunter
• All forms of criminal action are harmful. The corollary of this is that only
harmful acts should be criminal
Offensiveness- S Hall and T Duster
• Offensive behaviour in law involves an element of publicness
• It is possible for society to view behaviour as legally permissible though
immoral when carried out in private, but legally impermissible if it is carried
out in public
Liberty, Security and the State- Hocking
• When crim law enters spheres of private morality and social welfare, it exceeds
its proper limits at the cost of neglecting its primary tasks
Moral Panic- Catherine Lumby
• Moral panic shows acts are cirminalised informally by society
• Law making process isn’t all about legal principle, but does have basis in social
reaction
• Media uses society’s vulnerability, and applies distressing terms and placing
events under broad generalisations to capture viewer attention
• Moral panic is a condition or episode where a person or group emerges to
become defined as a threat to societal values and interests
Technocratic justice- P O’Malley
• Technocratic control and administrative rationalisation combine to denude the
criminal law of its moral content
• Technocratic justice, by displacing due process with informal and discretionary
procedures, demoralises crimes and renders it merely as a breach of admin
regulation
• Crim law ceases to become an issue of right and wrong, but instead it is seen as
law and order, which is merely behavioural regulation.
Against criminology- Cohen
• The simple line between right and wrong does not exist, and does not
correspond to what is criminal or non criminal

b) Discuss the appropriate physical and mental elements

Physical Elements

• the physical conduct of the action e.g. lighting of flag, carrying of placard with
slogans on it
• The action needs to be voluntary. In order to show voluntariness, there must
be a connection between the conscious mind and the bodily movement,
sometimes described as an exercise of the will to act (Ryan). The prosecution
has the burden of proof to show that the act was voluntary beyond a reasonable
doubt (Falconer).
• What is the relevant act? (Murray)- cannot take a limited view

21
 • Consequence- is someone offended? In crimes where the actus involves
consequences, the prosecution will have to prove a link between the
defendant’s act and the prohibited consequences.
• The first point that must be established is that the defendant performed the
actus reus. In contesting this, the accused may argue that the act did not take
place at all, or someone else did it, or accept that they did the act, but lacked
the mens rea specified in the offence.
• Is it a series of acts (Thabo Meli) or a continuing act (Fagan)

Mental Elements

1. How many acts are there to the offence? Are there different mental elements?
Offences may be defined in such a way that different mens rea requirements relate
to different elements of the actus reus, usually into its acts, circumstances and
consequences.
2. There is a presumption that in every statutory offence, it is implied as an
element of the offence that the person who commits the actus reus does the
physical act defined in the offence voluntarily and with the intention of doing
an act of the defined kind.

3. Is the offence based on the circumstances or the consequences?

Consequence

a. Is it a basic or specific intent offence?

i. A special intent to cause a prescribed result can be, but it not
ordinarily established by knowledge that such a result will probably
(or is likely to occur) (Brennan J in He Kaw Teh). A crime of specific
intent is where there was a special intent to cause a result
(O’Connor). Brennan in He Kaw Teh held that the concept of
specific intent relates not to acts, but to consequences, such as the
intent to cause grievous bodily harm.
ii. A general or basis intent is where the prosecution has to prove that
the accused intended to do an act or omission. The prosecution
must prove that the accused acted voluntarily (AR), and also show
that he intended to act (MR). For example, a person may have
voluntarily moved their fist, but it will only if there was intent to
strike someone will they be liable.
iii. An ulterior intent is where the mens rea goes beyond the actus
reus.
b. Does the offence require recklessness?- where the accused perceives a
risk that a consequence may occur but takes it. In some offence definitions,
recklessness may be found to exist where the accused foresaw the
possibility of a consequence eventuating (Coleman).
c. Does the offence require malice? However, in Coleman, it was suggested
that in cases of malice, the prosecution must show that the accused when
ahead and acted in spite of being aware of the possibility that some
physical harm would result. It is not material to prove a realization of the
degree of the harm inflicted or to prove the accused’s awareness of the
probability of harm. In Lavender it was held that malice refer to the state
of the mind of the accused rather than a reasonable person.
d. Brennan J He Kaw Teh- Where a mental state is applicable to results,
foresight of the possibility of their occurrence, or knowledge of the
likelihood of their occurrence or an intent to cause them are the possible
states of minds.
e.
Circumstances

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 a. Is the defendant wilfully blind? In Pereira, the court warned of the use
wilful blindness, where the legal existence is the accused’s knowledge of
the actual or likely existence of drugs. Care should be taken to ensure that
the jury is not distracted b the term from considering whether the fact is
proved beyond a reasonable doubt.
b. Is the defendant inadvertent reckless? This is where an act is inadvertent
to the extent it covered situations where the accused has not given any
thought to an obvious risk, and the question of whether there was an
obvious risk was to be assessed according to the standards of the
reasonable person (Caldwell). This will mean, however, that the age and
maturity of the defendant will not be taken into account in determining
whether the risk was obvious (Elliot). Caldwell was overruled by G.
However, in NSW, the failure of a defendant to advert at all to the
possibility that the complainant was not consenting may amount to
recklessness (Kitchener).
c. Brennan in He Kaw Teh - He also held that voluntariness and intent are
the mental states ordinarily applicable to an act involved in an offence,
knowledge or the absence of an honest and reasonable but mistaken belief
is the mental state ordinarily applicable to the circumstances in which a
relevant act is done or omission is made.
d. There is a further presumption in relation to the external elements of a
statutory offence that are circumstances attendant on the doing of the
physical act involved. It is implied as an element of the offence that, at
the time when the person who commits the actus reus does the physical
act involved, he either –
i. (a) knows the circumstances which make the doing of that act an
offence; or
ii. (b) does not believe honestly and on reasonable grounds that
the circumstances which are attendant on the doing of that act are
such as to make the doing of that act innocent.

There is a tendency to place offences with no MR into the second category, after it was
stated that absolute liability will only serve to obtain convictions for conduct which is
manifestly not criminal in nature by any recognized standards of justice (Hawthorn v
Morcam).

c) Whether such activities are already covered by existing laws

• Offensive conduct/language s4 SOA

• Move-on powers s197 LEPRA
• Offence of serious racial vilification s20D ADA
• Consorting s546A Crimes Act
• Loitering with intent 546B Crimes Act
• Unlawful entry on inclosed lands s4 Inclosed Lands Protection Act 1901
• Malicious damage s195 Crimes Act

d) Where should the law be going?

• Richard Fox- Shift from local to national to international sovereignty over the
criminal law to combat the growth of serious translational crime and the more
general forces of globalisation
• An expansion of the Commonwealth criminal power
• A continuing struggle to apply substantive criminal law and appropriate penal
sanctions to corporate wrongdoing

23
• Greater use of civil sanction to supplement the criminal process
• Increased emphasis on regulatory rather than punitive modes of responding to
breaches of the law
• Managerial approaches to court procedures and a rethinking of the values and
purposes of the criminal law

Kirby J- There are many other questions which require attention in a consideration of
the major issues confronting the Australian criminal justice system today. They include:
• The ways in which speedier trials can be achieved, not only for the accused (who
may be in no hurry) but for society;
• The effective use of legal aid funds both at trial and on appeal, given the special
disadvantages which the unrepresented litigant faces in legal proceedings
conducted according to the common law tradition;
• The many pressures to modify or abolish the right of the accused to silence and the
often little understood advantages of adhering to the accusatorial system of
criminal justice which puts the onus on the state and its agencies to prove the guilt
of the accused, imposing ordinarily no obligation on the accused to demonstrate
innocence;
• The introduction of majority verdicts in trials for State offences;
• The potential for injustice in cases of seriously delayed criminal accusations and in
particular in circumstances of "recovered memory", statutory limits on the
entitlement of the accused to test the evidence and inducements to false
accusation said to be made by victim compensation payments and sensational or
chequebook journalism; and
• The way the basic principles of the criminal justice system in Australia can be
reconciled with effective policing, including by the use of undercover agents and
deception.
• It is enough to mention these problems to indicate the range and variety of
challenges which must be faced by criminal lawyers today and the persons they
represent in police stations, trial courts and on appeal.

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