Criminal Law Study Notes – LAW1121

Module 1:
 Text: Colvin Ch.: 1,2 & 31 & Kenny: Ch.: 1,4 & 6.
 Queensland Criminal Code 1899 (Qld)
 Regulatory Offences Act 1985 (Qld)
 Summary Offences Act 2005 (Qld)
Nature of criminal law
 Mala in se – moral wrong, traditionally been considered a crime (EG murder)
 Mala prohibita – modern regulatory offenses (EG marital rape, duelling)
 Prostitution could be Mala in se or Mala prohibita dependent on the jurisdiction (Qld) is legal)
 However there is no legal difference
 Why does society regulate criminal conduct (see Sentencing Principles below)
 Functional society
 Rehabilitation
 Stop people re-offending – deterrence
 Deter individuals and others

Classification of Criminal Offenses

 S 3(2) Queensland Criminal Code 1899 (Qld) – QCC p45
Section 3 Division of offences
(1) Offences are of 2 kinds, namely, criminal offences and regulatory offences.
(2) Criminal offences comprise crimes, misdemeanours, and simple offences.
(3) Crimes and misdemeanours are indictable offences; that is to say, the offenders can not, unless otherwise expressly stated, be prosecuted or convicted except upon
indictment.
(4) A person guilty of a regulatory offence or a simple offence may be summarily convicted by a Magistrates Court.
(5) An offence not otherwise designated is a simple offence.

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Indictable Offenses Non-Indictable Offenses

Crimes Misdemeanours Simple Offenses Regulatory Offenses

 Indictment means a written charge preferred against an accused person in order to the person’s trial before some court other
than justices exercising summary jurisdiction. (s 1 QCC p 37)
 Crime –
 Misdemeanours – not as heinous as a crime
 Simple offense –
 Regulatory offense –

Indictable offences: Crimes and Misdemeanours

 Indictable Offenses – May or sometimes must be tried in superior courts (District Court, Supreme Court). Superior courts:
traditionally judge and jury but now also possibility of judge only trial.
 Indictable Offenses – Sometimes magistrates can hear indictable offences summarily, see ss 552A-552B QCC p 320.

NOTE: Sometimes the defence or the prosecution will decide whether to have the case read summarily in the Magistrates Court.
However, they cannot force the magistrate to hear it.
Non-indictable offences: Simple offences (summary offenses) and Regulatory offences
 Non-indictable offences- Person may be ‘summarily convicted’ by a Magistrates Court. See, eg:
 Regulatory Offences Act 1985 (Qld) (some property offences of low value)
 Summary Offences Act 2005 (Qld)

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Nature of Sentencing
S 9(1) Penalties and Sentences Act 1992 (Qld) - PSA

Sentencing Principles
 Just punishment in all circumstances (previous history, background, remorseful, nature of crime, re-offending) mitigating
circumstances or aggravating circumstances
 Rehabilitation of offender
 Deterrence of the offender and other persons from committing same or similar offences
 Denunciation of such behaviour by society (acting through court)
 Community protection from the offender

Sentencing Principles
 Sentencing judges may be bound by precedent
 Parliament provides maximum penalties for offences and sometimes mandatory sentences. Even if maximum penalty is life,
offender could be sentenced to less depending on the case

Nature of Sentencing (III)

 Principle of imprisonment as a last resort is no longer applicable.
s9(12) PSA - This section overrides any other Act or law to the extent that, in sentencing an offender for any offence, the court must not have regard to
any principle that a sentence of imprisonment should be imposed only as a last resort.
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Overview of relevant offences for this course

 Homicide: protects the right to live
 Non-fatal offences against the person: protects a person’s physical integrity
 Sexual offences: protects the right to choose whether and with whom to engage in sexual intercourse
 Property offences: protects the right own property and to control it
 NOT studying drug offenses
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Sources of Criminal Law

 Australia = Criminal law mainly matter of State and Territory jurisdiction rather than Commonwealth (matter of criminal law not
reserved to Commonwealth Parliament by Commonwealth of Australia Constitution Act 1900).
 State/Territory legislation can sanction conduct occurring within their territorial boundaries
 Commonwealth has supplementary power to create criminal offences in areas of specific constitutional jurisdiction (e.g. external
affairs, trade, commerce etc.)
 In R v Kidman (1915), the High Court found that the Commonwealth Parliament had the power to make laws with retrospective
effect. this case concerned a retrospective criminal law
 State and Commonwealth sources of law operating in Qld
 Criminal Code (Qld) Schedule 1 to Criminal Code Act 1899 (Qld) (‘QCC’)
 Criminal Code 1995 (Cth): Commonwealth criminal law/Commonwealth offences/Commonwealth jurisdiction.
 Other acts can also include criminal offences: See E.g.: Drugs Misuse Act 1986 (Qld); Crimes Act 1914 (Cth)

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‘Common law’ and ‘Code’ jurisdictions

 ‘Code’ jurisdictions in Australia (Qld, Tas, NT, WA, ACT): Codes as comprehensive statements
 ‘Common law’ jurisdictions (NSW, Vic, SA): Reliance on numerous statues and common law (judge made law)

Criminal law in Qld

 Major work undertaken by Sir Samuel Griffith “The Griffith Code” (was Premier of Qld, Qld Chief Justice and Chief Justice of
HC of Australia). Code came into force in 1901
 “Griffith Code” adopted by WA in 1902
 Since then many amendments of act, e.g. criminal procedure
 NOTE the criminal liability is in the code NOT in the amendment legislation

Structure of the QCC

 Part 1: Introductory (including definitions)
 Part 2-6: Criminal offences
 Part 7: Extension of criminal liability
 Part 8: Criminal procedure
Code Interpretation Methods
Code interpretation (See: Colvin: 1.19)
 Generally read code on its own (code marks a break from common law).
 Read according to ordinary and natural meaning.

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 Generally: do not refer to pre-existing or current common law (Johnson v R [1964] Qd R 1)

 Do not go outside Code for interpretation unless:
 Brennan v the King (Bank of England v Vagliano Bros):
 Technical meaning of code
 Ambiguity of wording
 Gap
 Where ambiguity in the penal code interpret in favour of the accused (Beckwith v R)
 Code has evolved over time: See, eg: computer related criminal provisions:
 s 408D QCC; also evolved due to judicial interpretation
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Importance of case law
 Law in Qld is code based but explained, interpreted and applied in case law
 Doctrine of precedent: Superior court decisions within Qld court hierarchy are binding on lower courts.
 Decision from other jurisdictions are persuasive, where laws are similar or comparable (e.g. WA has ‘Griffith code’ but
decisions from WA only persuasive value for Qld as different jurisdictions)
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Evidential/persuasive burden and standard of proof (I)
 QCC as such silent on matters of proof
 Burdens of proof adopted from common law (Woolmington v DPP (established that prosecution ordinarily carries burden of proof
re all substantive elements) applied to QCC in R v Mullen)
 Burdens of proof follow from Presumption of Innocence (presumed innocent until proven guilty or pleaded guilty)

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Evidential/persuasive burden and standard of proof (II)

 Burden of proof:
 Who must prove a particular fact?
 The person who carries the evidential burden must produce sufficient evidence for a particular proposition to persuade the trial
judge to consider the issue.
 The standard for evidential burden very low
 The evidential burden is just to get it heard in court
 Once allowed the evidential burden must then been used as persuasive burden
 The persuasive burden (sometimes referred to as the legal burden) means that the person deciding on the facts (jury, or in
case of judge alone trial, the judge) needs to be satisfied of the existence of certain facts to the required standard.

Standard of proof
 Standard to which certain facts have to be established.
 The standard of proof for the prosecution is mostly ‘beyond a reasonable doubt’. (high)
 In cases, where the burden of proof shifts onto the defendant (‘reverse onus’) the standard of proof for the defendant is
generally the lower standard of ‘on the balance of probabilities’. (lower standard than reasonable doubt)

Evidential/persuasive burden and standard of proof (IV)

General rule:
 Prosecution carries the burden of raising on the evidence (evidential burden), and proving (persuasive burden) beyond a
reasonable doubt (standard of proof) all elements of the offence (including physical and mental elements of the offence) and
negativing any possible excuses and defences.

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 In regards to excuses and defences under the QCC the defence must raise the issue on the evidence (evidential burden) and
the prosecution must generally disprove it (persuasive burden) beyond a reasonable doubt (standard of proof).

Evidential/persuasive burden and standard of proof (V)

 Prosecution ordinarily has evidential and persuasive burden of proof (regarding all of the elements of the offence and for
negativing possible defences and excuses)
 If prosecution is unable to meet the burdens of proof then presumption of innocence remains
Evidential/persuasive burden and standard of proof (VI)
 Burden of proof can be reversed and placed on the accused (‘reversed onus’).
 In this case the defence carries the burden of raising the issue on the evidence (evidential onus) and proving (persuasive
burden) it generally on a balance of probabilities(standard of proof),
 e.g. killing on provocation, s 304(7) QCC:
‘On a charge of murder, it is for the defence to prove that the person charged is, under this section, liable to be convicted of
manslaughter only’

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Module 2: I. Elements of Criminal Responsibility

 s 2 QCC ‘an act or omission which renders the person doing the act or making the omission liable to punishment is called an
offence’
 Prosecution generally has the burden of proof to establish the elements of an

Structure for Assessment of Criminal Responsibility - MEMORISE

I. Physical elements
 Can the physical elements of the offence be established
II. Mental elements
 Are certain mental elements required for the offence according to the QCC? If so
can the mental elements of the offence be established?
III. Defences and excuses
 Do defences or excuses or justifications exist that could affect the criminal liability
IV. Conclusion

I. Physical elements
 Mostly related to certain conduct that causes a certain, sometimes specific, result.
 For example, ‘Grievous Bodily Harm’, s 320 QCC, requires that someone does an act that causes another person grievous
bodily harm (specific result).

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 These elements are referred to in this course as physical elements.

Example: physical elements, s 320 QCC

Any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 14 years.
II. Mental elements
 The common law principle of mens rea (‘guilty mind’) does not apply in Qld: no presumption that criminal offences contain
mental elements. Generally, prosecution only needs to establish the physical elements
 The QCC can specifically require that a mental element needs to be established. S 23(2) QCC - intention/Motive: Unless the
intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole orpart, by an act
or omission, the result intended to be caused by an act or omission is immaterial.

Example Mental elements, s 302 QCC

Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say - (a) if
the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the
person killed or to some other
person some grievous bodily harm;

1. Intention
 The intention is usually inferred from what the accused has done and the surrounding circumstances (Willmot no 2)
 Direct intention: The desire of the accused is to bring about a certain result or consequence by the criminal act or omission
and the foresight that the result will follow from the accused’s actions.

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 Indirect intention: Accused foresees the results of the conduct as virtually certain but does not necessarily desire the outcome
(see: Vallance (1961)) However, in R v Reid (2006) court took a more narrow view regarding intention and concluded that
intention only means a person’s purpose.

2. Criminal Negligence –in exam

 Sometimes QCC requires negligence as an explicit element. See, for example, s 328 QCC.
 The QCC establishes certain duties in Ch 27. Courts have interpreted this as creating criminal negligence in regards to
offences against the person, such as, for example, manslaughter, and grievous bodily harm. Negligence is assessed
objectively.
3. Time
 The mental element must be present at the time of the alleged commission of the offence.
 Best to analyse the physical elements before considering the mental elements (where applicable)

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III. Defences and excuses

 ‘Unlawful’: No possible excuses and or defences, or other justification can be made out.
 Unless otherwise specifically excluded or modified, the excuses and defences in Ch5 of the QCC apply to all criminal offences
created in Queensland. Possible defences and excuses will be considered in more detail in the upcoming Study Modules.

Criminal responsibility of Children and Young People

 Children under 10 are exempt from criminal responsibility, s 29(1) QCC
 A person between 10 up until 14 is presumed to be not criminally responsible for their conduct, unless they have the capacity to
understand their actions and know that the conduct was wrong, s 29(2) QCC (Prosecution persuasive burden).
 A person over the age of 14 is criminally responsible for their conduct. Persons between 14 and 17 will be tried before a special
court (aim is to rehabilitate), Youth Justice Act 1992 (Qld).

Section 23(1)(a)-(b) QCC

 The section creates two independent excuses:
1. s 23(1)(a) QCC - Act independent of will,
2. s 23(1)(b) - ‘Accident’, now known as unintentional and unforseen event

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 Consequence: Complete acquittal

S 23(1) QCC (II)

• Operation of excuses in s 23(1) QCC is subject to the express provisions of the
QCC relating to negligent acts and omissions
• S 23(1) QCC does not apply to offences based on criminal negligence (ss 285- 290 QCC)

Act independent of will, s 23(1)(a) QCC

Elements:
1. Act or omission
2. Occurring independent of will
Note: This excuse is also referred to as sane-, non-insane automatism or involuntarism

Act independent of will, s 23(1)(a) QCC

 Focus on the act done or the relevant omission leading to criminal responsibility.
 Act/omission has to be willed.
 Evidence to raise doubt as to whether an act was voluntary…it will not be enough that an accused merely asserts that their acts
were involuntary… evidence of their condition at the time of the alleged offence must be supported by some expert evidence
(Falconer (1990))
Note: Accused to raise upon evidence, prosecution to negative operation beyond a reasonable doubt. If excuse is supported by the
evidence but not advanced by the accused judge is bound to direct jury

Act independent of will I, s 23(1)(a) QCC

 What does ACT mean? Historically three views on meaning of act. Narrow, intermediate and wide

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 Narrow (current) view encompasses the physical act (bodily action) of the accused giving rise to criminal responsibility
 Falconer (1990): ‘bodily movement over which an accused has control and its contemporaneous and inevitable consequences’


Act independent of will III, s 23(1)(a) QCC

Example of Act:
 Pulling the trigger on a gun
 Kaporonovski (1973): Pushing of victim’s hand holding a glass into victim’s face

Act independent of will, s 23(1)(a) QCC

 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, Falconer
(1990)

Categories that have been found to fall within s 23 QCC by the courts:

1. Acts independent of will due to reflex action or muscular spasm

2. Sane automatisms (person acting is not conscious of what they are doing)

Act independent of will, s 23(1)(a) QCC –Sanity/External Cause Test

 External Cause Test: Radford (1985): ….the essential notion appears to be that in order to constitute insanity in the eyes of
the law…[there must be] an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or
temporary, which can be properly termed mental illness (Insanity is an internal cause and cannot be construed as acting
independent of will) …as distinct from the reaction of a healthy mind to extraordinary external stimuli (this is the external test to
determine if the act was independent of will)

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Act independent of will, s 23(1)(a) QCC – Healthy Mind

 Focus of external cause test:
 Temporary disorder or disturbance of an otherwise healthy mind
 Caused by extraordinary external stimuli
 Falconer (1990): Correct distinction is essentially one between an otherwise healthy mind and a mental illness
 Healthy mind/ Objective test?
Note: Differentiate between sane and insane automatisms (more in week 9)

Healthy mind? Examples

Case Condition and reason
Ryan v the Queen; reflex or muscular spasm caused by independent muscular
Murray v the Queen action (independent of the control of the mind)
concussion after physical trauma of being hit in head by a
Cooper v McKenna
football
somnambulism (sleep walkers). R v Burgess has cast doubt
R v Holmes
on this. Canadian decision in Parks.

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Accidental events - unintentional and unforseen events, s 23(1)(b) QCC

 A person is not criminally responsible for—
(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

Accidental events - unintentional and unforseen events, s 23(1)(b) QCC

 Focus of s 23(1)(b) on event = consequence of an act, that gives rise to criminal responsibility (R v Taiters)
 In comparison, s 23(1)(a) deals with acts or omissions independent of will
Example:
 Act= Pushing a hand holding a broken glass into victims’ face
 Event=Injury of the eye

Accidental events - unintentional and unforseen events, s 23(1)(b) QCC

 To negative the operation of s 23(1)(b) Prosecution must establish beyond a reasonable doubt that the accused (see: Taiters
(1996)):

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 Intended that the event in question should occur (subjective); or

 Foresaw it as a possible outcome (subjective); or
 That an ordinary person in the position of the accused would reasonably have foreseen the event as a possible outcome
(objective)

Accidental events - unintentional and unforseen events, s 23(1)(b) QCC

 The accused did not foresee?
 (P) Special knowledge?
 Foresight: Valance v The Queen; R v Knutsen: Special knowledge to the accused that would enable them to foresee the event
means that the event is not caused by accident, even if an ordinary person would not have foreseen it

Unforseen events (accident) and inherent defects, weaknesses or abnormalities, s 23(1A) QCC
 S 23 (1A): 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.
 ‘Egg-shell skull’ or constitutional defect cases

Unforseen events (accident) and inherent defects, weaknesses or abnormalities, s 23(1A) QCC
 Pre-existing condition the effects of which have been exacerbated by the act of the accused and has direct bearing on severity
of injury suffered e.g. wounding causing someone to bleed to death due to haemophilia. Steindl [2002].
 Includes conditions that occur naturally and also e.g. displacement of implanted lens (cataract surgery).

Overview s 23(1) QCC

I. Physical elements - Can the physical elements of the offence be established?

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II. Mental elements - Is a mental element required and can it be established?

III. Defences and excuses - S 23(1)(a) QCC-Did the act occur independent of will? S 23(1)(b) QCC-Was the act unforeseeable? S
23(1A) QCC?

Module 3
I. Types of homicide (Overview)
1. Murder
2. Manslaughter
II. Physical elements of homicide
1. Death of a person
2. Causation
III. Murder (Mental elements)
1. Intention to kill, s 302(1)(a)
2. Intention to cause grievous bodily harm, s 302(1)(a)
3. Cases of s 302(1)(b)-(e) constructive murder

NOTE: MANSLAUGHTER HAS NO MENTAL ELEMENT

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Homicide: relevant definitions in QCC

– S 300 QCC: Unlawful homicide - Any person who unlawfully kills another is guilty of a crime, which is called murder or
manslaughter, according to the circumstances of the case.
– S 293 QCC: Def. of killing - Except as hereinafter set forth, any person who causes the death of another, directly or indirectly,
by any means whatever, is deemed to have killed that other person.
– S 291 QCC: Killing of a human being unlawful - It is unlawful to kill any person unless such killing is authorised or justified or
excused by law.

Overview: Murder/manslaughter

Murder, s 302 QCC: - Causing the death of another person with intention to
– Kill, s 302(1)(a); or

– Cause grievous bodily harm, s 302(1)(a)

– Cases of s 302(1)(b)-(e)

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Manslaughter, s 303 QCC

Killing a person in circumstances that do not amount to murder.
For example:
– Mental elements of murder cannot be established

– Mitigating circumstances for murder

I. Physical Elements of homicide, ss 300, 293 QCC

Physical elements homicide
1. Death of another person
2. Causation (death caused by the conduct of the accused person)
Note: S 293 QCC ‘directly or indirectly, by any means whatsoever’

Physical element: death of another person

Death of a “person”, s 291 QCC
Person includes s292: “a child 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.”
See R v Castles [1969]
For offences concerned with child birth see:
– Abortion, ss 224-226 QCC

– Killing unborn child, s 313 QCC

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– Concealing birth, s 314 QCC (disposing of dead body)

End of life? Def? eg Transplantation and Anatomy Act 1979 (Qld)

EXAM NOTE: make sure you define that a person has been killed by referring to QCC

Physical element: causation

Causation, s 293 QCC:
– The accused must have caused the death of another person

– Sufficiently strong link between the actions of an accused and death of a person to attribute criminal responsibility. Where link
is broken, the chain of causation is broken.

Physical element: causation - TESTS

A number of tests for establishing causation have been discussed see: Royall v the Queen (1991) MUST KNOW THIS
– Tests can only be used to interpret connection between action and result (tests co-exist)

– 1. ‘Significant contribution’-test: Causation if conduct of accused is still contributing and operating cause at time of death.
Appears preferred test in Qld

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Applicability of test for Qld confirmed in R v Sherrington at [4] ‘courts in Queensland follow the decision in [R v Royall (1991)] that a
person causes the death of another if his act or conduct is a substantial or significant cause of death, or substantially contributed to
the death’.
– 2. ‘Reasonable foreseeability’-test. Was the result objectively foreseeable by ordinary person? Criticised as confusing mental
and physical elements
– 3. ‘Natural consequence’-test. Are the actions of the victim a natural consequence of the actions of the accused (see Royall)
(scenarios where victim undertakes certain steps for survival)
– 4. ‘But for’-test (sine qua non) Would the result have occurred ‘but for’ the actions of an accused? Often criticised as too
wide, never the less still used

Royall v the Queen (1991) HCA

Victim fell to death from 16th floor window (question jumped or fell?)
Evidence of prior violent dispute between accused and victim
3 possibilities:
1. Accused pushed victim out of the window
2. Victim fell out of the window in an attempt to avoid an oncoming attack (accidentally)
3. In an attempt to escape an attack from the accused the victim jumped out of the window (intentionally)

R v Hallet [1996]
– Hallet charged with murder
– Hallet assaulted victim and left unconscious victim at the beach with feet in water (went to sleep on other beach area)
– Cause of death drowning (probably while unconscious)
– When Hallet awoke victim was floating in the sea dead
– Unclear whether pulled in by tide or how victim ended up in ocean

R v Pagett (1983)

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English Court of Appeal: Girl as a human shield

Physical element: causation

– No intervening acts exist that constitute an immediate cause
Check: Is there an intervening act (novus actus interveniens) that breaks the chain of causation between conduct of one person
and death? (a new act that relieves the causal responsibility of an original actor?)

Physical element: causation (deemed)

Do deeming provisions apply?
Causation is deemed to exist where the following applies:
– death by acts done before childbirth, s 294 (causation if conduct before childbirth causes death after childbirth)

– death caused as a result of threats or intimidation of any kind or deceit, s 295 (victim responds to the above)

– acceleration of death, s 296 (did the act accelerate the cause of death?)

– Acts of the victim that contribute, s 297 (contributing acts of victim do not interrupt causal link. See: R v Blaue (stabbed victim
refused blood transfusion based on religious beliefs. No break of causation chain)
– Unexpected defects, s 23(1A) (unexpected defects of the victim do not break chain of causation)

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Physical element: causation (deemed) (cont.)

Do deeming provisions apply?
– “Reasonably proper” medical treatment “applied in good faith”, s 298 (does not break chain of causation even if unsuccessful.
See also: R v Kinash: the turning off of life support to an assault victim)
– Note: weather and elements do not break the chain of causation. Yet, extraordinary nature occurrences may (see: R v Hallett
[1969])

Checklist causation: Causation

1. Apply tests to see whether conduct was causal
2. Are there intervening acts breaking the chain of causation? Even if so, is
there deemed causation (ss 294-298 QCC or set out in case law)?

Mental elements: Murder

(Intent can be established by confession or logical inferences from conduct, surrounding circumstances and words of the accused.
Colvin 4.15)
Intention to cause
– Death - Accused has the intention to cause the death of another person

– Grievous bodily harm (GBH); s302(1)(a) QCC - • Accused has the intention to cause GBH to another person

– to the person killed (or some other person. See s 302 (2) Meaning: Accused had intention to kill person A but killed person B);
or
Constructive Murder

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– Death caused by means of an act done in the prosecution of an unlawful purpose, likely to endanger human life, s 302(1)(b)
(‘unlawful purpose’ murder, sometimes called ‘dangerous act’ murder)
– Death occurring in facilitation of crime/during flight from scene, s 302(1)(c)

– Death caused by administering any stupefying or overpowering thing for flight from scene/crime, s 302(1)(d)

– Death caused wilfully by stopping the breath during crime or flight, s 302(1)(e)
Constructive Murder: Overview ‘Unlawful Purpose’ Murder
I. Physical elements, ss 300, 293 QCC
– Causing the death of another
II. Mental elements
– Intention to cause death or GBH cannot be established, s 302(1)(a) (see previous slide for elements of this)
III. Constructive Murder
– Death caused by means of an act in the prosecution of an unlawful purpose, s 302(1)(b) QCC (immaterial that did not intend to
hurt anyone, s 302(3))
2.1 Accused has unlawful purpose (other than causing death or GBH)
2.2 Dangerous act: (objective) endangering life
2.3 Dangerous act is different to unlawful purpose “in furtherance”
(consider: shooting during bank robbery and security guard; Stuart v R (1974)(arson))

‘Unlawful Purpose’ Murder - Examples

Act likely to endanger life:

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– See R v Hind and Harwood where Qld CA considered holding a loaded rifle against the victim, without the safety-catch
engaged, an act likely to endanger human life, s 302(1)(b): “a substantial – a ‘real not remote’ – chance”
– See Colvin 4.19 for application of this definition in more recent cases

Overview: physical and mental elements for Murder

I. Physical elements, ss 300, 293
1. Death of another person – is it a person
2. Causation - Tests regarding causation
2a. Causation - No intervening acts that break the chain of causation; is there ‘deemed’ causation, ss 294-298
II. Mental elements
1. Intention to cause death, s 302(1)(a)
2. Intention to cause GBH, s 302(1)(a).
III. Constructive murder
Cases of s 302(1)(b)-(d) (e.g. ‘unlawful purpose’- murder)
Module 4 – Homicide II Manslaughter

Aims and Objectives

– Understand the nature and elements of homicide (murder and manslaughter)

– Understand partial defences relating to murder including provocation and ‘abusive relationship’ defence

– Understand the offence of unlawful striking

– Break down and apply the offence in any given factual circumstance

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Manslaughter
Manslaughter applies in circumstances that do ‘not constitute murder’ s 303 QCC. For example:
1. Accused causes the death of another person.
But: no mental element as required for s 302(1) (and no ‘Constructive murder ). Then possibly (involuntary manslaughter):
I. ‘Intentional violent act’ manslaughter or
II. Negligent manslaughter by act or omission
2. Has mental element but accused completes elements of murder but due to mitigating circumstances is convicted of
manslaughter (so called partial defences: e.g. provocation, diminished responsibility) (voluntary manslaughter)

Overview ‘Intentional Violent Act’ Manslaughter

– no mental element established first, so move to manslaughter

– if a violent act then we look at Intentional Violent Act’

I Physical elements
1. Death of another person
2. Causation

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II. Mental elements - for murder (& Constructive murder) cannot be established
III. Intentional violent act: not intended to cause death or GBH (otherwise murder would apply) - Eg assault causing the death of
another
IV. Defences and excuses - Especially s 23(1)(b) QCC ‘unforeseeable events’. Not foreseeable by the accused and not
foreseeable by an ordinary person?

Negligent Manslaughter (Act)

– No mental element established first, so move to manslaughter

– If a NON-violent act then we look at Negligent Manslaughter

I Physical elements
1. Death
2. Causation
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II. Mental elements for murder (& Constructive murder) do not exist
III. Negligent Manslaughter elements
1. Doing a dangerous act, s 288 QCC (see, for example R v Patel and medical treatments), or in charge of dangerous
things, s 289 (R v Reid [2006] QCA 202 at [19] “dangerous things” objects external to the human body, such as knives and
guns’; Hodgetts and Jackson ‘meat preservatives’) (see also vehicular manslaughter, R v Wooler)
2. Criminal Negligence*(s 289): R v BBD [2006] QCA 441 - negligence involved a “departure from reasonable standards of
care (that of a reasonable member of the community) – deserves to be punished as a criminal”. See also R v Bateman (1925)
*difference between criminal negligence & civil is the severity of the punishment

Criminal Negligence?
– R v Bateman (1921) ‘ the negligence of the accused went beyond a mere matter of compensation – showed such disregard for
the life and safety of others as to amount to a crime – deserving punishment’.
– R v BBD [2006] ‘ departure from reasonable standards of care [...] that the person deserves to be punished as a criminal’

Negligent Manslaughter (Omission)

I Physical elements
1. Death
2. Causation
II. Mental elements for murder do not exist
III. Negligent Manslaughter elements

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1. Duty to act, have they breached the duties (accused omitted to act despite the fact that accused owed duty)
– S 285 Duty to provide necessities – find necessities in case law (eg medical aid R v Macdonald and Macdonald [1904])

– S 286-Duty of a person who has care of a child (U16): medication, R v Nielsen

– S 290-duty to do certain acts (very broad)

2. Criminal Negligence: Would a reasonable person have acted and foreseen the death of the victim where no action? (See
above considerations re criminal negligence & case law)

Voluntary Manslaughter
I. Physical elements
1. Death
2. Causation
II. Mental Elements of Murder, s 302(1)(a)- (e) (+)
III. Defences and excuses

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1. General defences (consequence: acquittal of the accused. eg self defence

2. Partial defences to murder EXAM
– Provocation, s 304;

– Diminished responsibility, s 304A;

– ‘Abusive relationship’, s 304B

– consequence: charge of murder is reduced to a charge of manslaughter)

Partial defences to murder EXAM

Provocation: Rationale
– Recognition of human weakness by law. See, e.g. Miller [2009] ‘there does occur a snapping point when an ordinary person
may do something that he would not dream of doing under normal circumstances’
– Historically: Avoiding the mandatory death penalty for murder where provocation applied
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Killing on Provocation, s 304(1)

“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. “

Killing on Provocation, s 304(1) -Elements

1. Provocative conduct: Act undertaken by the victim, which provoked the offender +
2. Subjective element: Accused lost self-control due to the provoking act and acted in the heat of passion before there is time for
passion to cool
+
3. Objective element: 2 tier test - An ordinary person who was provoked with the same gravity could have lost self-control and
formed an intent to kill

Note: s 304(7) On a charge of murder, it is for the defence to prove that the person charged is, under this section, liable to be
convicted of manslaughter only. (reverse onus =onus on defence = standard of proof is balance of probabilities)

Killing on Provocation, s 304(2) - WORDS

1. Provocative conduct: What was the provocative conduct and did it amount to provocation?
– Consider provocative conduct in context!

– (P) Words as provocative conduct, see Buttigieg (1993)

NOTE: According to s 304(2): Ss (1) does not apply if the sudden provocation is based on words alone, other than in
circumstances of a most extreme and exceptional character.
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Killing on Provocation, s 304(2) QCC- LAWFUL

Note: a lawful act (that is an act declared lawful by law/by the code) is not provocation! See: Kenny 12.78
Killing on Provocation, s 304(2) – WHO?
Provocation of accused conducted by the victim:
– Generally provocation of accused must originate from the victim

– But can sometimes be sufficient where provocation originates from someone closely connected to victim: the accused wrongly
believed that the victim provoked him. See: Provocation by another and accused acting under a mistaken belief that it was by
the victim, R v Pangilinan [2001]
– See also provocation by the victim but to someone other than the accused and accused retaliates, R v Quartly [1986] (possible
applicability of s 24 QCC?)
Killing on Provocation, s 304(2) – Self Induced
Provocation that has been self-induced by the accused?
– Not explicitly set out in the section

– But, at common law a person generally cannot rely on provocation when provocation is self induced, see, eg, Edwards [1973].

– Kenny [12.80]: this result applies in Qld

Killing on Provocation, s 304(2) - LOCATION
• The provocative conduct must occur in the presence of the accused
• Accused must be in seeing or hearing distance, see Quartly [1986]

Killing on Provocation – domestic relationships

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According to s 304(3) QCC:

Also, SS (1) does not apply, other than in circumstances of a most extreme and exceptional character, if
(a) a domestic relationship exists between 2 persons; and
(b) one person unlawfully kills the other person (the deceased); and
(c) the sudden provocation is based on anything done by the deceased or anything the person believes the deceased has
done
(i) to end the relationship; or
(ii) to change the nature of the relationship; or
(iii) to indicate in any way that the relationship may, should or will end, or that there may, should or will be a change to the
nature of the relationship

Killing on Provocation – domestic relationships

Provocation is only available as a defence for killings in a domestic relationship in ‘circumstances of a most extreme and
exceptional character’ if:
– Accused unlawfully killed victim with whom the accused

– was in a domestic relationship (defined in s 304(4) with reference to Domestic Violence and Family Protection Act 2012 but
also including people dating on a number of occasions (different to s18(6) of the DVaFPA); and
– Provocation done is based on anything done by the deceased or anything the person believes the deceased has done to
end the relationship (even if relationship has ended before provocation, s304(5); or to change the nature of the relationship;
or to indicate in any way that the relationship may, should or will end, or that there may, should or will be a change to the
nature of the relationship

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NOTE: Restriction of application of provocation in domestic violence situations!

Killing on Provocation, s 304(2) - Subjective element- lost self-control

The accused must have lost self-control because of the provocation (no premeditation)
– ‘in the heat of passion’ and before there was time for the passion to cool; the provocation must cause the accused to act before
the accused regains self-control, see Masciantonio (1995)
– What does sudden provocation mean?

– Wording seems to indicate immediate response of defendant. However, time lapse as such does not necessarily exclude
defence (provided sufficiently proximate) See Pollock [2010]
– Yet, may be difficult to establish link between provocation and killing due to loss of self control. Possibly driven by
other motives like revenge? See Pollock [2010]. See also Chhay (1994)

Killing on Provocation, s 304(2) - Subjective element - Loss of self control

– Fear can lead to a loss of self-control. See, e.g. van den Hoek v R (1986) also Secretary (1996))

– Emotions such as anger, hate, resentment, revenge van den Hoek (1986) also R v Pangilinan [2001]

NOTE: When determining whether a person has lost self control, the personal characteristics of the accused (relationship with
the victim and other relevant attributes of the accused) can be taken into consideration. See: Stingel v R (1990) [note difference to
objective element on subsequent slides]

Killing on Provocation, s 304(2) - Objective element

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3. Objective element -2 tier test

Might an ordinary person provoked with the same gravity have lost self-control and formed an intent to kill? (2 tiers)
1. What was the gravity of he provocation? (personal attributes of the accused may be considered)
2. Might or could an ordinary person who is provoked with the same gravity as the accused loose self-control and form an
intent to kill?

Killing on Provocation, s 304(2) - Objective element

TEST 1. What was the gravity of the provocation (personal attributes of the accused may be considered)
• Person’s attributes are relevant to determine gravity ONLY (including history, relationship, personal characteristics e.g. age,
gender, cultural background, race, personality, instability, intoxication etc.)
• See: Stingel v R (1990)

Killing on Provocation, s 304(2) - Objective element

TEST 2. Might or could an ordinary person who is provoked with the same gravity as the accused loose self-control and
form an intent to kill?
• Relevant is the intent of the ordinary person. The way the killing is executed is irrelevant.
• Personal attributes of the accused cannot be taken into consideration ( except for the age). See, e.g.: Masciantonio (1995)

– R v Stingel (1990): 19 year old witnessed consensual sex between his (former) girlfriend and deceased in a parked car.
Deceased told Stingel to leave (in abusive language). Returned with butcher knife and stabbed deceased

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– Green v The Queen (1997) (‘gay panic’ defence): deceased had loaned Green money and turned into confidant and ‘best
friend’ Green stayed over one evening in another room. Then homosexual advances in bedroom that Green did not want.
Stabbed deceased with scissors and left in pool of blood. Possible sexual abuse of his sisters by their father.
– See also retrial: R v Green [1999].

– See 2015 HC decision of Lindsay

Overview murder/ provocation

I. Physical elements of murder
1. Death of another person
2. Causation
II. Mental elements of murder - S 302(1)(a)-(e) can be proved
III. Defences
1. General defences = Consequence: acquittal
2. Partial defences, including provocation, s 304 = Consequence: murder charge is reduced to manslaughter charge

‘Abusive relationship’ defence, s 304B QCC

Note: this is a partial defence that if raised successfully reduces a murder charge to manslaughter charge

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Self-defence and victims of domestic violence

– Commonly raised in domestic violence situations (person being in an abusive relationship)

– Historically difficult to successfully raise a defence as domestic violence issues were more unclear and due to technicalities of
defences.
Consider, e.g.
– Provocation: ‘Sudden’ and link between provocation and killing due to loss of self control

– Self-defence: Assault and reasonable?

Killing in an abusive domestic relationship, s 304B
In 2010, introduction of partial defence, where: S 304B(1)
A person who unlawfully kills another (the deceased) under circumstances that, but for the provisions of this section, would
constitute murder, is guilty of manslaughter only, if—
(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 causes 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

Note: Defence is in addition to self-defence and provocation. No assault needs to have occurred for s 304B QCC!
S 304B QCC

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(2) An abusive domestic relationship is a domestic relationship existing between 2 persons in which there is a history of acts of
serious domestic violence committed by either person against the other.
(3) A history of acts of serious domestic violence may include acts that appear minor or trivial when considered in isolation
Note: Domestic violence (domestic violence; s 8 Domestic and Family Violence Protection Act 2012 may be two ways. Thus s
304(5) allows claiming of defence ‘even if the person has sometimes committed acts of domestic violence in the relationship’
Note: Intended mostly for the weaker party in domestic relationship (s 1 QCC, s 13 Domestic and Family Violence Protection Act
2012) who makes a pre-emptive strike rather than waiting for an assault to be in progress
S 304B QCC – Elements
I. Conduct: acts of serious domestic violence against the person in the course of an abusive domestic relationship
II. 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 causes the death
III. The person has reasonable grounds for the belief having regard to the abusive domestic relationship and all the circumstances
of the case
Overview murder/’abusive relationship’ defence, s 304B QCC
I. Physical elements of murder
1. Death of another person
2. Causation
II. Mental elements of murder
– S 302(1)(a)-(e) can be proved
III. Defences
1. General defences =Consequence: acquittal
2. Partial defences, including s 304B = Consequence: murder charge is reduced to manslaughter charge

Sentencing Murder/Manslaughter

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– Manslaughter is a crime and punishable by imprisonment for life, s 310 QCC. Sentencing discretion depending on aggravating
and mitigating circumstances.
– Murder is a crime and punishable by imprisonment for life, s 305 QCC (mandatory).

Unlawful Striking Causing Death, s 314A

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– Introduced in 2014 in its own Chapter 28A

– The offence creates liability for causing death in instances in which the (mental) elements of murder and manslaughter cannot
be established
– Creates liability where death was an accident, s 23(1)(b)

– Ensures that a person who causes death of another by striking another person's head or neck will (always) be criminally liable
for the death, unless the accused has a defence (other than the ones excluded).

Unlawful striking-Overview
S 314 A - Unlawful Striking Causing Death
I. Physical elements
– Striking to the head or neck (defined in s 314A(7))

– Death

– Causation
(note: Assault is explicitly not an element of the offence)
II. Mental elements
– No mental elements specified (unlike murder)
III. Defences and excuses
– ‘Unlawfully’ as contained in subs 3A refers to absence of any defences.

– Subs 4 states that a person is not criminally responsible if the act is done as part of a socially acceptable function or activity
and is reasonable in the circumstances (this is further defined in subs 7).

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– Consent is not a defence;

– neither is unforeseeable event, s 23(1)(b).

Overview Connection: Murder, Manslaughter, Unlawful Striking causing death

Murder Manslaughter
Unlawful Striking s 314 A
ss 293, 302, 305 ss 293, 303, 310
I. Physical elements I. Physical elements
I. Physical elements (+)
(+) (+)
II. Mental elements
NA NA
(-)
III. Defences and excuses
Accident III. Defences and excuses
23(1)(b) Accident s 23(1)(b) NA
(+)
Criminal responsibility Criminal responsibility
Criminal responsibility (+)
(-) (-)

Alternative verdicts
– Manslaughter alternative verdict to murder, s 576

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– Dangerous operation of a vehicle, s 328A, is available as an alternative verdict to manslaughter, s 328B, where manslaughter
charge is based on use of motor vehicle
Module 5 – Non-fatal offences against the person and Provocation
Objectives
Introduction to selected non-fatal offences against the person in the QCC:
 common assault, s 335
 assault occasioning bodily harm, s 339(1)
 and its aggravation in s 339(3)
 serious assaults, s 340 QCC,
 doing grievous bodily harm (GBH), s 320(1)
 and its aggravations in s 320(2) and s 317(e);
 unlawful wounding, s 323,
 and its aggravation in s 317(e)

 Provocation and assault-based offences, ss 268, 269 QCC

Overview: offences against the person

 Homicide (Study Module 3-4)
 Non-fatal, non-sexual offences against the person (Study Module 5)
 Sexual Offences (Study Module 6)

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Overview content
I. Elements of assault as defined in s 245 QCC
II. Common assault, s 335 QCC
III. Assault occasioning bodily harm, s 339 and its aggravations
IV. Serious Assaults, 340 QCC
V. Doing Grievous Bodily Harm s 320(1) QCC and its aggravations
VI. Wounding (with and without intent), ss317(1)(e), 323(1)(a) QCC

Assault-based offences
 Set out in Chapter 30 QCC: assault is specific requirement as defined in s 245 QCC
 Assaults unlawful unless authorised, justified, or excused by law, see: s 246(1) QCC (analyse under III defences).
 May still be unlawful even with consent s 246(2) QCC

Definition of assault, s 245(1) QCC

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 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 other person, and the act is called an assault

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Different types of assault in s 245 (1) 1st alternative and 2nd alternative QCC

Assault by application of force, s 245 (1) 1st alternative

 Use of force
 + Causation
 + No consent / no valid consent

Assault by threat, s 245(1) 2nd alternative

 Bodily act or gesture
 + No consent / no valid consent
 + Ability to effect the person’s purpose

NOTE -s 245 only give you the definition, you CANNOT say someone is criminally liability according to s 245!

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S 245(1) 1st alternative QCC: assault by application of force

1. Use of force - “strikes, touches, or moves, or otherwise applies force of any kind”
2. Causation - Between conduct and contact; either direct or indirect application of force
3. No consent / no valid consent

1. Use of force - “strikes, touches, or moves, or otherwise applies force of any kind”
Definition. ‘applies force’ s 245(2) QCC (not exhaustive): applies force includes the case of applying heat, light, electrical force,
gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort
 Physical contact (direct or indirect)
 Neal v R - Spitting at policeman (Held. Yes spitting constitutes assault “very grave possibility of violence” (Not charged but
possibly ‘threatened application of force’ 2nd alternative)
 Consider: Inadvertent, common contact in everyday life (ordinary incidents of social interaction), implied or tacit consent; see:
Boughey v the Queen
 Croft v Blair dogs used “as a weapon” to attack another person - Held. Yes this conduct was use of force. (can also be
considered to be threatened application of force 2nd alternative).

2. Causation
 either direct or indirect application of force

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3. No consent / no valid consent

 Question of fact for the jury
 Judicially interpreted, in the context of assault based offences, to exclude circumstances where there is implied or tacit
consent.
 E.g. inadvertent contact in everyday life, Kimmorley v Atherton guy a model kissed whilst being photographed – Held.
Model was consenting so no assault because it was inadvertent contact (strange ruling)

Consent can be vitiated:

 Involuntary
 By Fraud
 Exceeding the limits of the given consent. See:
– Lergesner v Carroll [1991]: 2 guys arguing & Let’s settle this by fighting, both agreed – victim was on the floor and said
You won you won’ but the other guy kept punch and kicks while incapacitated . Held – ?
– Participation in sports: implied consent to application of force “within rules of the game”. Once goes beyond what could be
expected in course of game or “spirit of game” then consent exceeded. See McNamara v Duncan, Abbott (1995) 81
ACrimR55.

3. No consent / no valid consent

 Victim need not be aware that they are being assaulted where there is an actual application of force, see Boughey v the
Queen(victim unaware of the assault when asleep).

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Note: Mistake of fact, s 24 may apply where there is a mistake on part of the accused regarding whether the victim consented or
regarding the degree of force that was consented to. See Lergesner v Carroll [1991]
•Possibly different where there is an attempted or threatened application of force (see below). Victim may have to be aware in that
case. See Brady v Schatzel.
S 245(1) 2nd alternative. QCC: assault by threat
1. Bodily act or gesture
– Words alone are not enough, BUT if accompanied by bodily act or gesture – may constitute an assault
– No physical contact required
– Arguably the victim needs to be aware

2. No consent / no valid consent

3. Ability to effect person’s purpose

3. Ability to effect person’s purpose

 Accused has present and actual ability: threat need not be immediate (can be continuing and can be conditional> must be
something that the accused can actually or the victim believes that the accused could actually do. e.g. if you don’t do this, I will
NOT if you don’t do this your father will – see also R v Secretary (1996))
 Accused has apparent present ability: debate on whether or not this is assessed subjectively (belief of the victim) or
objectively (was the belief reasonable). See Kenny, Colvin et al and Brady v Schatzel (subjective test). If subjective then
victim has to be aware. But fear on part of the victim not required.

Mental element required?

– The QCC does not require specific mental element regarding assault

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– However, Colvin: situation is unclear in Qld so use common law - See in regards to s 245(1) 2nd alt. Hall v Foneca [1983] (WA)
(concerning threat or attempt to apply force and intent)
Common Assault, s 335 QCC
 Common assault is set out in s 335 QCC. This a misdemeanour [up to] 3 years imprisonment
 REMEMBER if more serious assault offence charged , but circumstances of aggravation not proved, common assault
alternative verdict, s 575 CC.

Aggravated forms of non-fatal offences against the person

For example:
 Assault occasioning bodily harm, ss 339, 328 QCC (‘bodily harm’ defined in s 1 QCC)
 Serious assaults, s 340 QCC
 Doing grievous bodily harm, ss 320 (‘grievous bodily harm’ defined in s 1 QCC)
 Unlawful wounding, s 323(1) QCC
 Acts intended to cause GBH and other malicious acts, s 317 QCC

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Assault occasioning bodily harm, s 339(1) QCC

NOTE this is NOT doing bodily harm, this is ONLY assault occasioning bodily harm
I. Physical elements
1. Assault (s 245 QCC) (consider possible consent)
2. Bodily harm (def. s 1 QCC “bodily injury that interferes with health or comfort”.)
3. Causation

II. Mental elements

No mental element explicitly required under the QCC (see above discussion of mental element).But maybe common law

III. Defences and excuses

S 246 QCC ‘Unlawful’: Consider what defences and excuses might apply

What does bodily harm include? MUST be real, not just alleged, may need medical evidence etc
 Black eye or a bloodied nose covered, see Lergesner v Carrol.
 But not, infliction of pain by headlock R v Scatchard (WA)
 Evidence of some injury (cf mere distress, pain or discomfort).
 May include psychological harm.
 Not including wounding, maiming or GBH as other specific offences apply.

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NOTE! - Assault occasioning bodily harm, s 339(3) QCC

If the offender does bodily harm, and is or pretends to be armed with any dangerous or offensive weapon or instrument or is in the
company with 1 or more person or person, the offender is liable to 10 years imprisonment

 Where the elements of s 339(3) QCC can be established the accused is liable to imprisonment for [up to] 10 years.
 The reason why a high penalty can be applied in those circumstances is that where the crime is carried out in company the
victim is faced with the combined strength of two or more persons, see R v Wisher.

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Serious Assaults, s 340 QCC

I. Physical elements
1. Serious Assault
 Assault as specified in different circumstances in s 340(1)(a)-(h) QCC
II. Mental elements
 No mental element explicitly required under the QCC (but see Colvin on mental element).
 Also, check if alternatives require mental element
III. Defences and excuses
 S 246 QCC ‘Unlawful’: Consider what defences and excuses might apply

Serious Assault, s 340(1) (a),(b) QCC

1. Intent to commit a crime or intent to resist or prevent lawful arrest, s 340(1)(a) QCC
 In regards to arrests it needs to be noted that an arrest may be undertaken with the application of actual physical contact, see
Alderson v Booth and extends from being taken into custody to being held in custody, see R v Conway.
2. Assaults, resists, or wilfully obstructs, a police officer while acting in the execution of the officer’s duty, or any person
acting in aid of a police officer while so acting, s 340(1)(b) QCC
 As per 340(1) QCC this includes biting or spitting on the police officer or throwing at, or in any way applying to, the police officer
a bodily fluid or faeces.

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 Read remainder of the section for a better understanding.

Grievous Bodily Harm (GBH), s 320 QCC

S 245 DOES NOT apply – this is NOT assault
Consent etc does not apply
Provocation does not apply

I. Physical elements
1. Doing something results in GBH
2. Grievous Bodily Harm (def. s 1 QCC)
3. Causation (unlike in homicide, test for causation may be based on foreseeability in the case of GBH, wounding and causing
serious disease in Qld. See Kenny 13.59; Knutsen [1963]) Preferred test in QLD is reasonable foreseeability, so use recent cases
not just Knutsen

II. Mental element

 No mental element required for s 320 QCC

III. Defences and excuses

 Consider whether defences and excuses apply. Note that provocation, ss 268, 269 QCC does not apply to offences without
assault element.
Note: As assault is not an element of s 320 consent is irrelevant for criminal liability for GBH, see: Lergenser v Carrol

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GBH, s 320 QCC –Causation (I)

R v Knutsen:
 accused assaulted woman and left her unconscious lying under a street lamp on road late at night.
 hit by drunk driver.
 Two charges Assault Occasioning Bodily Harm (AOBH) and Doing GBH.
 Convicted of GBH at trial.
 On appeal CA substituted conviction for that of AOBH. Court considered chain of causation was broken by drunk driver (not
foreseeable: Would an ordinary driver (not drunk) have seen and avoided the woman)

 What was likely to happen --would an ordinary person, then and there at the time the accused did the unlawful act, BRD have
FORESEEN that injury was LIKELY to be sustained? Not a matter of foreseeing the details or the degree of injury. It is a matter
of foreseeing the PROBABILITY of some injury being received in the manner in which the known injuries were in fact received.
 foreseen as likely or probable in comparison what is remotely possible, fanciful or conjectural.

GBH, s 320 QCC –Causation

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 ‘violence may cause the injured party to suffer harm in an instinctive effort to avoid harm from the accused’s violence or put the
injured party in such a position that [they] cannot escape injury from other source of imminent harm –in-these cases an
onlooker would exclaim ‘He’ (i.e. the accused) did that.’
 Offence can be established by breach of duties contained in Chapter 27 QCC
 Duty provisions CAUSATION can be established where there is a breach of the duty provisions.

s 320 QCC –definition GBH

grievous bodily harm means—
(a) the loss of a distinct part or 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;
 bodily injury QLD compared with serious disease in definition in WA compared with mental health
 see Chan-Fook [1994] 2 All ER 552 – clinically recognise psychiatric injury

GBH, s 320 QCC –def.

 Note that the bodily injury required in s 320 (1)(c) of the definition of GBH, must be one that: “if left untreated, would endanger
or be likely to endanger or cause or be likely to cause permanent injury to health”. (R v Lobston)
 Expert medical testimony to prove GBH or it could be just assault occasioning bodily harm
 Consider nature of the injury at the time it was done
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 ‘Likely’ not defined in QCC but Judicial interpretation Boughey v the Queen, (context Criminal Code (Tas)), equates ‘likely’ with
probable (must differentiate from remotely possible). Warned against judicial directions using other terms as may confuse.
 And Bench book 114 “Likely” is a word that is used every day and its meaning may depend on its context. In this context it
means a substantial chance. That is a real and not remote chance; more than a mere possibility”.

GBH with intent, s 317(e) QCC

Provocation not allowed
I. Physical elements
1. Same elements as for doing GBH, s 320 (see above)

II. Mental elements

1. Intent in light of s 317(1)(a)-(d) - e.g. maim, disfigure, disable (s 317(1)(a); to do some grievous bodily harm or transmit a serious
disease (s 317(1)(b))
Note: s 320 is alternative verdict to s 317 QCC, see s 575.

III. Defences and excuses

 Consider whether defences and excuses apply.
 Note that provocation, ss 268, 269 QCC does not apply to offences without assault element
Note: As assault is not an element of s 317 consent is irrelevant for criminal liability for GBH with intent

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Wounding s 323(1)(a); Wounding with intent, s 317(e) QCC

Not defined in QCC so look at common law
 Wounding s 323. A misdemeanour [up to] 7 years.
 Wounding with intent, s 317(e). A crime [up to] life.
 Where wounding with intent is not proved, wounding s 323 (1)(a) remains alternative verdict, see s 575.

I. Physical elements
1. Wounding (Wounds not defined in QCC. Judicial definition in common law ‘true skin must be penetrated or broken’, see R v
Jervis compared with R v Devine a break in the outer layer of the skin would not be sufficient (bodily harms based offence more
appropriate).
2. Another person
3. Causation (see discussion on causation above)
II. Mental elements
 No mental element required for s 323(1)(a)

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 But need mental element for s 317(e) with intent in light of s 317(1)(a)-(d) (see previous discussion)
III. Defences and excuses
 Consider whether defences and excuses apply. Note that provocation, ss 268, 269 QCC does not apply to offences without
assault element
Note: As assault is not an element of s 320/317(e) consent is irrelevant for criminal liability for wounding
III. Defences
 Lawful assaults - For example: - Lawful arrest & Self-defence & Provocation (full defence for assault)

Provocation and assault-related offences

 S 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.

 S 268(1) -The term 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.

Provocation and assault-based offences s 269 QCC

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 Only applicable to offences that contain assault as an essential element (see: Kaporonovski (1973)) (see also Study Module
6) (e.g. not GBH/not wounding)
 Complete relief of criminal responsibility for ‘an assault’ (acquittal)

Note: Accused must raise provocation (evidential burden) on the evidence and prosecution must negative beyond a reasonable
doubt

Provocation and assault-based offences, s 269 QCC Requirements

1. Provocative conduct: (see ss 268, 269 QCC) Means/includes any wrongful act or insult
2. Subjective element: Accused lost self control due to provoking act and acted on the sudden and before there is time for passion
to cool
3. Objective element: Provocation would likely deprive the ordinary person of self control and induce the person to assault the
other person, s 268
4. Proportionality of defensive force:
The force used is not disproportionate. The force used is not intended (subjective), and is not such as is likely (objective) see
Buttigieg (1993), to cause death or grievous bodily harm

Provocation and assault-based offences s 269(2) QCC

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

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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.

Provocation and assault-based offences s 269 QCC- Provocative conduct

 Self-induced provocation is excluded, s 268(4) QCC
 Unlawful arrest not necessarily provocation on its own, but may provide evidence of provocation to a person who knows of the
illegality, s 286(5)
 S 268 (1) ordinary person or in their presence to a person in their immediate care or conjugal, parental, filial or fraternal
relationship
Provocation and assault based offences, s 269 QCC- Provocative conduct Wrongful act or insult
 Lawful acts (as set out in legislation/code) cannot constitute provocation, s 268(3)
 Wrongful acts that are not lawful can constitute provocation
 Mere words in form of insults are sufficient for s 269 QCC

Provocation and assault based offences, s 269 QCC-Subjective element

Accused looses self control due to the provocation and acts on the provocation on a sudden before there is time for passion to cool

Provocation and assault-based offences s 269 QCC-Objective element

 ‘Ordinary person’ would likely loose self control
 Application of two tier test as in Stingel (see discussion above)
 ‘Likely’ equated with probability

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Provocation and assault-based offences s 269-Proportionality of defensive force

 Proportionality between force used and provocative act, see Toomath [2009]
 The force used is not intended (subjective), and is not such as is likely (objective), to cause death or grievous bodily harm
 If the force is intended or is likely to cause death or GBH then provocation is not available

Consequence of successful use of provocation defence = acquittal

Module 7 – Sexual Offences

Objectives - Introduce selected sexual offences in the QCC:
 Rape, s 349
 Sexual assault, s 352 QCC
 Understand the nature of these offences
 Understand the excuse of mistake of fact, s 24 QCC (relates to all sorts of offences)
 Understand the issue of consent

Sexual offences in historical context

Criminal Law Amendment Act 2000 (Qld)

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 Reform relating to rape and sexual assault and consent in this regard
 Stimuli by Queensland Taskforce on Women and the Criminal Code
 Sexual offences in the past: Conduct only carnal knowledge (only penile penetration) + Not gender neutral wording

General overview of sexual offences in the QCC

 Rape, s 349 QCC
 Sexual indecent assault, s 352(1)(a) QCC (Sexual assault)
 Procuring or witnessing acts of gross indecency, s 352(1)(b) (Sexual assault)
 Procuring a sexual act by coercion or false pretence, s 218(1)(a)-(b) QCC
 Sexual offences against minors, ss 208-215
 Sexual offences against persons with an impairment of the mind, s 216
 Other offences, ss 218A, 213, 222, 211, 227, 228, 229C-229O QCC
Elements of Rape, s 349 QCC
I Physical elements
1. Sexual intercourse (penetration), s 349(2) QCC: Carnal knowledge (a) and other forms of penetration (b)-(c) with another person
2. No consent/ No valid consent of the victim
II. Mental elements
 No mental elements regarding rape specified in Qld. See: R v Thompson [1961]; Holman v R [1970]
III. Excuses and defences
 Consider in particular whether mistake of fact (honest and reasonable), s 24 QCC may apply in regards to consent

1. Sexual Intercourse (penetration)

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 Carnal knowledge, s 349(2)(a) - Carnal knowledge is concerned with penile penetration and includes sodomy (complete upon
penetration to any extent, see def. s 6 QCC)
 Penetration by ‘things’ or body part, s 349(2)(b) - Other than penile penetration
 Penile penetration of the mouth, s 349(2)(c) –

Note, s 347 QCC: penetrate does not include penetrate for a proper medical, hygienic or law enforcement purpose only - Thus
excluded from definition of sexual intercourse.

2. No consent/ no valid consent (I)

 Consent is immaterial for a range of offences under the QCC. For example incest
– s 222; indecent treatment of children under 16

– s 210; unlawful sodomy involving person under the age of 18

– the intellectually impaired s 208 (offences related primarily to minors or those without the cognitive capacity to consent)
 Consent is material for rape s 349 and consent is material sexual assaults s 352
 Meaning of consent defined in s 348 QCC and consent, or lack thereof, question of fact for the jury to determine based on the
evidence.
 Prosecution is required to establish an absence of consent beyond reasonable doubt

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2. No consent/no valid consent (II)

S 348 QCC ONLY relates to rape
(1) In this chapter, consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.
(2) Without limiting subsection (1), a person's consent to an act is not freely and voluntarily given if it is obtained—
(a) by force; or
(b) by threat or intimidation; or
(c) by fear of bodily harm; or
(d) by exercise of authority; or
(e) by false and fraudulent representations about the nature or purpose of the act; or
(f) by a mistaken belief induced by the accused person that the accused person was the person's sexual partner.

2. No consent/ no valid consent (III) Consent/ no consent?

Checklist
1. Has consent been expressed or manifested?
2. Does the person consenting have the ‘cognitive capacity to consent’?
3. Was the consent ‘free and voluntarily given’, s 348(2) QCC?

Note: In regards to rape s 349(3) sets out that a child under 12 is incapable of giving consent

2. No consent/ no valid consent - 1. Expression /Manifestation of consent

 Consent expressed through words or conduct? Note: Inactivity or physical submission is not the same as consent (see Kenny
14.14-15)

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 Not necessary that victim physically resists as may submit with reluctant acquiescence (consent). (Problem is the defendant
might rely on Mistake of fact, s 24 QCC?
 Consent can be withdrawn during intercourse. Continued intercourse may then constitute rape, see R v Mayberry [1973]; R v
Ibbs(“30 second rape”)

2. No consent/ no valid consent - Cognitive capacity to consent?

 Example - Consent when sleeping or intoxicated + drugs + unconscious
 Victims in drunken stupor cannot consent as no cognitive capacity, see R v Francis (1993) (very heavily intoxicated victims,
but you can consent while intoxicated). Must look at case by case
 Sleeping victims cannot consent, as no cognitive capacity

Note: Jury decides what the effects of intellectual impairment on cognitive capacity to consent are and whether victim has cognitive
capacity to consent, see R v Mrzljak
2. No consent/ no valid consent s 348(2)(a)-(d) – 3. Was the consent given ‘free and voluntary’, s 348(2)?
Section 348 (2) Consent vitiated (not free & voluntary) where obtained by
(a) force
(b) Threat or intimidation
(c) Fear of bodily harm
(d) Exercise of authority
(e) False & fraudulent representations about the nature or purpose of the act
(f) Mistaken belief induced by the accused that the accused was the person’s sexual partner

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 Consent obtained by force, threat or intimidation, fear of bodily harm or by exercise of authority, s 348(2)(a)-(d) is void
as not freely and voluntarily given
 Exercise of authority. See: Brewer v R [1994] (NZ) (similar provision, but NZ section required some detriment, which is not
required under the QCC).16 year old girl during job interview persuaded to take her top off and induced to perform oral sex
“then I can definitely give you the job”.
 Wording “to any extent” since reform omitted. May indicate that some substantial form of force, threat or intimidation now
required?
 Fear of bodily harm has now been included, s 348(2)(c)
 Force, threats and intimidation may not necessarily be limited to physical violence. Uncertain whether extends to promise,
harassment and economic pressure?
 Only relevant that threat operates in victim’s mind, PS Shaw [1995] 2 Qd R 97 even if it can’t be substantiated by perpetrator
 Michael v Western Australia [2008] accused pretended to be police officer and promised not to report sex workers in exchange
for reduced price or free sex. Held there was no free and voluntary consent
2. No consent/ no valid consent –deceit/fraud/ mistake, s 348(2)(e)-(f)- 3. Was the consent ‘free and voluntary’ given s 348(2)?
Consent obtained by fraud or mistake, s 348(2)(e)-(f)
 Consent is void where mistake relates to nature or purpose of the sexual act, s 348(2)(e) QCC
 Note: R v Winchester [2011] QCA 374 (young girl to have sex in exchange for a pony) considered promise and s 348(2)(e).
Depending on context promise can vitiate consent but not always if promise is given as part of a normal social interaction.
Each case determined on facts: surrounding circumstances, the complainant‘s age, maturity, mental acuteness, psychological
and emotional state.
 Consent is void where it relates to nature and purpose of the act, s 348(2)(e): see also Papadimitropoulus v R (1957)

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 Consent is void where it relates to physical identity of the perpetrator, s 348(2)(f): see also Papadimitropoulus v R (1957)

2. No consent/no valid consent deceit/ fraud/ mistake, s 348(2) (e)-(f)

 R v Williams – singing teacher induced a 16 year old pupl to have sexual intercoures on pretence it would improve her
breathing. Held – appellant was properly convicted of rape
 Papadimitropoulus v R (1957) accused represented to a non-English speaking woman, that the lodgement of a notice of
intention to marry, constituted a marriage. On this basis, she consented to sexual intercourse. Consent was induced by a lie but
comprehending as to the nature of act. Held – No rape because she knew the nature of the act (Decision now reversed by
statute in NSW, and arguably reversed in QLD
 Mobilio (Vic) – radiographer performed an internal examination by scan on three women for his own sexual gratification.
Convictions quashed on appeal on the basis the appellant had done an act no different to what was expected and to which the
woman consented despite the radiographers ulterior purposes. Decisions reversed by statute in Vic, NSW and NT. Qld see R v
Bas
 R v Bas – practitioner of natural or alternative medicines. Appeal against conviction multiple offenses including indecent assault
and rape. Essentially the acts proved against the appellant were digital penetration and touching breasts and other parts of the
complainants bodies. Held – appeal against conviction dismissed. Amendment nature or purpose of the act. Purpose
subjectively assessed therapeutic or sexual gratification. True state of mind must be established on the evidence regarding the
accused’s purpose.

No consent/no valid consent– mistake, s 348(2)(f)

 S 348(2)(f) sometimes referred to as (im)personation (although this may no longer be strictly correct). Current provision makes
no mention of the word personation

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 Previously limited to spouse and now extends to the victim’s sexual partner
 In accordance with the wording of the section a mistaken belief on the part of the victim, that the accused is their sexual
partner, must be induced by the accused. See R v Pryor, and R v Kake (NZ)

 s 348(2)(f) - R v Pryor [2001] accused convicted of break and enter and rape. Accused claimed did nothing to ‘impersonate’
victim’s partner of victim “I thought I was having sex with my partner”.
 R v Kake (NZ) – lady sleeping alone, someone crawling through window, lady ask if the person was her husband and if he had
been released early from prison, the guy said yes and they had sex. Yes it was rape.

Rape, s349(2)(a) QCC -Sentencing

 Penalty [up to] life imprisonment, s 349(1) QCC.
 Alternative verdicts to rape are set out in s 578, and include the offence of sexual assaults, s 352 QCC.

Sexual Assaults, s 352(1) QCC

Not rape then move to sexual assault
(1) Any person who
(a) unlawfully and indecently assaults another person; or
(b) procures another person, without the person's consent
(i) to commit an act of gross indecency; or

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(ii) to witness an act of gross indecency by the person or any other person;
is guilty of a crime.

 Consent relevant to (a) assault (see s 245 ‘without consent’. See Study Module 6) and (b)(i)(ii) specifically refers to ‘without
consent’
 Regarding consent: definition in s 348 QCC may not strictly apply to s 352
 but circumstances may be useful and relevant as negating consent for s 352. (See bench book 118 and subsequent slides)

Indecent sexual assault, s 352(1)(a) QCC - Elements of Sexual Assault

I. Physical elements
1. Assault (by use of force or threat, s 245(1) QCC) (See: Study Module 6)
2. Indecency/Sexual Nature - [indecent not defined in QCC, but judicial interpretations] - not including acts enunciated in s 349(2)
as this constitutes rape
3. No consent/ no valid consent, s 245(1)
II. Mental elements
 No mental elements specified under the QCC. This may suggest no requirement for a mental element. But see discussion on
consent on non-fatal offences against the person.
Definition of Indecency
Various judicial interpretations in the past
 R v Drago (1992) (WA) it is sufficient to instruct ‘conduct unbecoming or offensive to common propriety’.
 But! R v Bryant [1984] (Qld), wallaby testicles in jewellery box. Indecent act contrary to QCC. Found: insufficient to instruct jury
that indecency is ‘conduct unbecoming or offensive to common propriety’. NOT sexual assault

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Definition of Indecency - Current definition in Qld:

 Bench book 118 “The word “indecent” bears its ordinary everyday meaning. It is what the community regards as indecent. It is
what offends against currently accepted standards of decency. Indecency must always be judged in the light of time, place and
circumstances”.
 Bench book 118 footnote “Reference should not be made to the dictionary meaning of “indecent” as ““unbecoming or
offensive to common propriety”, which sets the parameters of indecency too widely: R v McBride [2008] QCA 412.

S 24 QCC - Mistake of Fact

Mistake of fact, s 24 QCC (I)
Negates mental or physical elements of an offence
Examples:
 Picks up wrong mobile phone (stealing);

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 Pulls trigger of a gun that they believe to be unloaded (murder);

 Belief suit case is empty but has in fact a seal section containing drugs (possession)
 Mistaken belief as to how much force required to repel an assault (self defence)

‘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

Mistake of fact, s 24 QCC- Mistake of fact relating to Consent

1. Act or omission (e.g. raped or indecently assaulted the complainant)
2. Holding a mistaken belief (subjective)
3. Honestly mistaken as to the fact that the complainant was not consenting (subjective)
4. The mistaken belief must be reasonable (objective)

 Effect of the section in relieving criminal responsibility will vary

 Possible acquittal or reduction of offence to a lessor one

Mistake of fact, s 24 QCC

 Can be expressly or impliedly excluded by legislation, s 24(2) QCC
 It is for the defence to raise on evidence, and the prosecution negative it beyond a reasonable doubt
 Onus of proof can be reversed. E.g. s 129 (d) Drugs Misuse Act 1986:

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 the operation of s 24 QCC is excluded unless that person [the accused] shows [OBOP] an honest and reasonable belief in the
existence of any state of things material to the charge

Mistake of fact, s 24 QCC, and relationship to consent regarding rape and sexual assault
I. Physical elements
Rape/ Sexual assault (see above)
II. Mental elements
Not explicitly required under the QCC
III. Excuses and defences
Consider, for example, Mistake of fact, s 24 QCC regarding consent (elements):
 Act or omission (e.g. raped or indecently assaulted the complainant)
 Holding a mistaken belief (subjective) (as to the consent of the victim)
 honestly mistaken as to the fact that the complainant was not consenting (subjective)
 The mistaken belief must be reasonable (objective)

Mistake of fact, s 24 QCC and relationship to consent regarding rape and sexual assault
 Note: Effect of s 24 QCC in relieving criminal responsibility will vary.
 Kenny [8.86]:
– Rape of a 14 year old with belief she was consenting.

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– Possible mistake of fact and excuse for rape (mistake about consent).

– But, not defence for unlawful carnal knowledge of a child under 16, s 215 QCC.

– However, s 229 sets out that a lack of knowledge or mistaken belief as to the age of the victim [under certain age] is
immaterial where no express provisions to the contrary exist (excluding possibility to rely on mistake of fact).
– But, s 215(5) QCC expressly provides that (where child is over the age of 12) it is a defence to prove that the accused
believed, on reasonable grounds that the child was of or above the age of 16 years (reversed onus on accused on
balance of probabilities]

Mistake of fact, s 24 QCC and relationship to consent regarding rape and sexual assault
Attorney General’s Reference No 1 of 1977 [1997] (WA):
– Code does not explicitly mention intention

– For s 24 to apply in case of rape belief of accused must be both honest and reasonable

– Court confirmed that the text of the Code does not permit the adoption of the common law rule regarding mistakes

Mistake of fact, s 24 QCC and relationship to consent regarding rape and sexual assault
R v Mrzljak [2005]:
 Charged with two counts of rape.
 Question, inter alia, was there an honest and reasonable mistake as to consent?
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 Victim had intellectual disability (gave evidence that she said ‘no’ and pushed him back.
 But complied with taking her clothes off and touching his penis because she was asked to do so.
 Prosecution: 1. no consent, 2. not the cognitive capacity to consent.
 Mistake of fact regarding consent?
 Accused spoke little English and had an intellectual disability.
 Question: How does this relate to ‘reasonable’? - Does it have to be a reasonable person or the accused on reasonable
grounds (considering his disability and lack of English as personal characteristics).
 Personal characteristics of the accused could be taken into account [Holmes at 89].
 This does not extend to intoxication [Williams JA at 55]. See also approach of McMurdo P [23-26]

Mistake of fact, s 24 QCC and relationship to consent regarding rape and sexual assault
R v Dunrobin [2008]:
 Accused suffered from paranoid schizophrenia (anti-psychotic medications)
 Had difficulty in interpreting hesitancy, ambiguity, complexity and vagueness
 Conviction for rape quashed as trial judge had failed to address the accused's psychiatric condition in the jury direction
regarding s 24 QCC

Module 7- Selected Property Offences

Objectives

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 The nature and elements of, and where relevant the differences between the offences covered in some depth:
 Dishonesty
– stealing, s 391, fraud s 408 C(1)(a) & receiving s 433
 Threat or force
– robbery, ss, 409, 412, 413 & break and enter offences, ss 418-422
 Damage: wilful damage, s 469
 Associated regulatory offences
 Understand the concept of honest claim of right, s 22(2) QCC

Overview Stealing, ss 398, 391 QCC

I. Physical elements
 Taking or converting, s 391(1) QCC
 Thing capable of being stolen, s 390 QCC
 Belonging to another s 391(7) QCC
II. Mental elements (most property offences have a metal element)
Fraudulently (special intention) person needs to act fraudulently, s 391(1)(2) QCC see below
III. Defences and excuses
Consider particularly whether there is an honest claim of right, s 22 (2) QCC

Fraudulently (mental element), def. s 391(2)

(a) an intent to permanently deprive the owner of the thing of it; (most common)

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(b) an intent to permanently deprive any person who has any special property in the thing of such property;
(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;
(e) an intent to deal with it in such a manner that it cannot 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.

1. Taking or Converting and ‘Asportation’ (I)

 Taking: physical act = asportation, s 391(6) QCC ‘The act of stealing is not complete until the person taking or converting the
thing actually moves it or otherwise actually deals with it by some physical act’ (minor movement may be sufficient)
 Conversion: dealing with the property in a way that is ‘inconsistent with the rights of the true owner’ see Caxton Publishing Co
(keeping a video with the intent of not giving it back is conversion, but merely keeping a video when not wanting to steal it is
only passive possession, see R v Angus not conversion)

2. Things capable of being stolen s 390 QCC

Anything that is the property of any person is capable of being stolen if it is

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(a) moveable; or
(b) capable of being made moveable, even if it is made moveable in order to steal it.

Property defined in s 1 QCC

(a) everything animate or inanimate that is capable of being the subject of ownership;
(b) and money;
(c) and electrical or other energy, gas and water;
(d) and a plant;
(e) and an animal that is—
(i) a tame animal, whether or not naturally tame;
(ii) or an untamed animal of a type that, if kept, is usually kept confined;
(iii) or an untamed animal in a person’s possession or being pursued for return to possession after escape;
(f) and a thing produced by an animal mentioned in paragraph (e)

3. Belonging to another s 391(7) QCC

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 Defined in s 391(7) QCC: ‘owner includes the owner, any part owner, or any person having possession or control of, or a
special property in, the thing in question’
 Prosecution does not necessarily have to identify the actual owners. May proceed on basis that ownership is not known BUT if
ownership is known then that must be proved. See: R v McKiernan. See also s 565(e) QCC (indictment: particulars, which need
not be proved). But where ownership is known it must be established

3. Belonging to another Special property (def. 391(2AA) QCC):

Special property includes any charge or lien upon the thing in question, and any right arising from or dependent upon holding
possession of the thing in question, whether by the person entitled to such right or by some other person for the other person's
benefit. (example - stealing your own car from a garage because you don’t want to pay the bill)

3. Belonging to another (P) Passing of property from owner? s 391(1)-(2) QCC

 Where property of the thing has passed over to the accused s 391(1)-(2) QCC no longer applies
 Property passes with possession where it is the intention of the giver that property should pass, Illichv the Queen. This
principle operates regardless of any mistakes (as long as they are not fundamental) on part of the giver

Fundamental Mistakes - Identity of transferee or thing, or quantity. Does not apply to money where bona fide transaction. Property
in money passes with possession

3. Belonging to another(P) Passing of property from owner? Illich v the Queen(WA)

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 Illich (accused) was handed money as pay for his service to a vet clinic.
 However, overpaid by around $ 530 by mistake.
 Accused did not count and did not become aware until later.
 When accused became aware later on, separated the amount.
 Majority HC: No fundamental mistake =property passed =not guilty of stealing

3. Belonging to another(P) Passing of property from owner? Money in bank accounts

 Bank owns money.
 Property passes with possession where bank intends to pass property.
 See however: R v Mujunen (difference between teller transaction and use of ATM)
 R v Mujunen: Accused withdrew money from account using ATM prior to clearance of cheque contrary to the conditions of use

3. Defences and excuses: Honest claim of right (relevant for all property offences in the QCC) S 22(2) QCC
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

Honest Claim of Right, s 22(2) QCC Elements

 Offence relating to property
 Act or Omission
 Honest belief (does not have to be reasonable) relating to a current legal claim
 No intention to defraud

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Honest Claim of Right, s 22(2) –Property (I)

 Offence must relate to property, (see def. in s 1 QCC)
 Includes all property offences in the QCC. Question whether it all applies to offences in other legislation, see Walden v Hensler
(1987)

Honest Claim of Right, s 22(2) – Honest Belief

 Question of fact for the jury
 Subjective assessment of the mind of the accused
 Must be sufficient evidence of the existence of a belief. Accused must formulate some belief, and the belief must be honest but
not necessarily reasonable. Has been held that an accused will raise the excuse ‘if he honestly believes himself to be entitled to
do what he is doing’, see R v Pollard as explained in Walden v Hensler

Honest Claim of Right, s 22(2) – Without intention to defraud

 Honest claim of right reinforced by element without an intention to defraud
 Peters v R per Kirby J: ‘intent to defraud connotes the intention to produce a consequence which is --detrimental to a lawful
right, interest, opportunity or advantage of the person to be defrauded’.

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Robbery, ss 409, 411 QCC

Stealing with violence (actual or threatened)
I. Physical elements
1. Stealing, s 391 QCC (see above)
2. Actual or threatened violence, s 409 QCC
II. Mental elements
1. Fraudulently, s 391(1)(2) QCC
2. Use of threat to obtain the thing stolen or to prevent/ overcome resistance, s 409 QCC
III. Defences and excuses
 Consider particularly honest claim of right

1. Physical elements Violence immediately before or after

 Violence not defined in QCC
 Must occur at, immediately before or immediately after
 Problem is where violence only occurs as an incidence of the stealing (not purposive) See Colvin 7.32
 Problem is where violence followed by a stealing (afterthought), eg stealing from a person that was knocked out?

Aggravating Circumstances s 411(2) QCC

 Offender is or pretends to be armed with any dangerous or offensive weapon or instrument,
 Is in company with 1 or more other person or persons, or

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 Offender wounds or uses any other personal violence to any person, the offender is liable to imprisonment for life.

Burglary, s 419(1) QCC

Burglary is for dwelling
I. Physical elements
1. Entering or being in a dwelling, ss 419(1), 418(2) QCC
2. Dwelling, s 419(1) QCC
II. Mental elements
Intent to commit an indictable offence (can charge intent only)
III. Aggravations, s 419(2),(3),(4)

Entering or being in premises, s 421 QCC

Same as burglary, but this is for premises
I.Physical elements
1.Entering or being in premises
2.Premises, s 418(4)
II. Mental element
Intent to commit an indictable offence
III. Aggravations, s 421(2),(3) QCC

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1. Physical elements Entering or being in a dwelling

Enters, s 418(2) QCC:
A person is said to enter a dwelling or premises as soon as any part of the person's body or any part of any instrument used by the
person is within the dwelling or premises.
 Consent not express element = can still be committed if owner has consented (even when owner said come in, the other
person can still commit burglary)

2. Physical elements Dwelling

 Definition. dwelling in QCC s 1; def. premises in QCC ss1, 418(4)
 Dwelling: building or structure used for residence with building or structure attached (even if sometimes uninhabited).
 Premises: Other than dwelling (e.g.: tent, caravan, vehicle)

2. Mental element
Intent to commit an indictable offence, s 419(1) QCC
Offence can be completed even where no actual indictable offence is committed as long as there is intent. Intention can exist prior
to entry but can also be formed once inside, R v Potter

3. Aggravations, s 419(2),(3),(4) QCC

 S 418(1) QCC: A person who breaks any part, whether external or internal, of a dwelling or any premises, or opens, by
unlocking, pulling, pushing, lifting, or any other means whatever, any door, window, shutter, cellar, flap, or other thing, intended

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to close or cover an opening in a dwelling or any premises, or an opening giving passage from one part of a dwelling or any
premises to another, is said to break the dwelling or premises.
 S 418(3) QCC: A person who obtains entrance into a dwelling or premises by means of any threat or artifice used for that
purpose, or by collusion with any person in the dwelling or premises, or who enters any chimney or other aperture of the
dwelling or premises permanently left open for any necessary purpose, but not intended to be ordinarily used as a means of
entrance, is deemed to have broken and entered the dwelling or premises.

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Receiving Tainted Property, s 433 QCC

I. Physical elements
1. Receiving - Proof of possession or aiding in concealing, s 433(2) QCC
2. Tainted property - ‘A thing obtained by way of an act constituting an indictable offence’, s 432(1)(a) QCC
II. Mental element
 Grounds to believe it is tainted, s 433(1) QCC (debate subjective/objective)
III. Defences and excuses
 Consider possible defences and excuses

Recent Possession
 Related to stealing and receiving stolen property (common law concept imported into QCC)
 Accused in possession of the goods (possession must have been recent)
 Jury can draw an inference, where accused is in possession of an item that has been recently stolen, that accused stole or
received the property
 Recent possession is a rebuttable presumption (can be rebutted by reasonable explanation of accused)

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Obtaining by deception, s 408C(1)(b) QCC

I. Physical elements
1. Obtaining, s 408(3)(e) - Includes ‘to get, gain, receive or acquire in any way’; sufficient to obtain possession, possible to obtain
through owner’s mistake, s 408C(3)(f)
2. Property - Ss 1, 408 C(3)(a) QCC
II. Mental element
Dishonesty (no definition provided in the QCC, recourse to common law). The intention to pay or make restitution for or restore the
property is immaterial, 408C(3)(b) QCC.
III. Defences and excuses
Consider possible excuses and defences
IV. Aggravations, s 408C(2) QCC

Misappropriation, s 408C(1)(a) QCC

I. Physical elements
1. Applying to his or her use or the use of another
2. Property - ss 1, 408C(1)(a)(i) belonging to another, (ii) joint property, see also 408 C(3)(d) QCC
II. Mental element
Dishonesty
III. Defences and excuses
Consider possible defences and excuses

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1. Physical elements - Applying to his or her use

 Applies: R v Easton Macrossan CJ ‘envisages some interaction between person and property and will not be met by the
formation of an intention to act or the devising of a plan in respect to the thing’
 Must be some utilisation of property
 R v Capewell: Transfer of money from daughter’s to mother’s bank account. Fraud despite daughter’s consent.

2. Physical elements - Property

See: Def. s 1 QCC (see above stealing)
 Qualification regarding transfer of ownership with possession for purpose stealing not applicable: s 408C (3)(f) ‘it is
immaterial…whether the owner passes, or intends to pass ownership in the property’
 Def. of persons to which property belongs s 408C(3)(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;
 Covers money in bank accounts

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Wilful Damage, s 469 QCC

I. Physical elements
1. Property of another: definition of property in s 1 QCC. Immaterial whether accused had lawful possession, s 458(3) QCC
2. Damage or destruction: rendering property ‘imperfect or inoperative’ (Zischke)
II. Mental element
 Wilful, see R v Lockwood; ex parte AG [1981]; R v Hayes [2008]. Intentional or recklessly
III. Defences and excuses
 ‘Unlawfully’: Consider whether defences and excuses exist. Particularly s 458 QCC special defences relating to property;
consent of the owner and other authorisations or justifications in regards to property

1. Physical elements - Destroys or damages property

 No general def. for destroy or damage in QCC (def. of damage in relation to a document, see s 460 QCC)
 Zischke: Spray painting political slogans: Damaged when rendered imperfect. E.g. adding water to milk, dismantling machinery,
jumping on police officer’s cap
 Property (see def. above under stealing)

2. Mental element - Wilfully

 Same meaning as in R v Lockwood ex parte AG:
 Subjective: Requires proof that accused either (1) intended to do type of harm actually done, or (2) deliberately did an act,
aware that the result was a likely consequence and recklessly did the act regardless of the risk (Lockwood)

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 R v Webb, Ex parte AG, R v T: Further developed in context of arson (in regards to 2 nd def. above: Recklessness + aware of
likely consequences = Result of the act must be foreseen (more probable than not)
Examples of similar non-indictable offences
 Unauthorised dealing with shop goods, s 5 Regulatory Offences Act 1985
 Leaving a hotel without payment, s 6 Regulatory Offences Act 1985
 Unlawful possession of suspected stolen property, s 16 Summary Offences Act 2005

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Module 8 – Self-defence and other self-help defences

Objectives
 Self-defence, ss 271, 272 QCC
 Defence of another, s 273 QCC
 Compulsion, s 31(d) QCC
 Emergency, s 25 QCC (common law known as necessity or duress)
• Understand nature of and differences and relationship between excuses and how to break them down and apply to any given
factual circumstances

General Overview: Provisions concerning defensive force (not in this course)

Many provision provide for the use of defensive or reasonable force or acts of self preservation in the QCC and
elsewhere. E.g.:
 Defensive force re property, ss 267, 274-279 QCC
 Use of discipline in vehicles, s 281 QCC
 Domestic discipline, s 280 QCC: It is lawful for a parent or a person in the place of a parent, or for a schoolteacher or master, to
use, by way of correction, discipline, management or control, towards a child or pupil, under the person's care such force as is
reasonable under the circumstances.

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Self-defence
Use of defensive force for self-protection and the protection of others in ss 271-273 QCC

Overview of self-defences
 Rationale behind self-defence, s 271-278:
 Protection of the right to self-defend or defend others against unlawful assaults
 Self-defence takes away the criminal responsibility of the defendant because the defendant acted to preserve/help themselves
or another person
 Consequence: Complete acquittal where accused successfully relies on self-defence

Preliminary, ss 271-272 QCC

 Self-defence, ss 271-273 can be raised for ALL offences against the person (e.g.: assault, assault occasioning bodily harm,
sexual offences manslaughter, murder)
 Ss 271(1)(2) QCC make actions lawful
 s 272 makes a person not criminally responsible
 Note: Accused has to only raise the use of defensive or reasonable force on the evidence (evidential onus) BUT prosecution
has to negative beyond a reasonable doubt

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Preliminary, ss271-272 QCC

 Unlawful, unprovoked assault? - (Provocation, def. in ss 268, 269) = S 271 QCC =

– Force used by accused was not intended/likely to cause death or GBH, s 271(1)
Or
– Force used by accused was intended/likely to cause death or GBH s271(2)

 Unlawful provoked assault? (Provocation, def. in ss268, 269) = S 272 QCC

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Self-defence against unprovoked assault, s 271(1)(2) QCC

 Ss 271(1) and 271(2) have different elements and focus but both relate to an unprovoked assault
 They operate in different circumstances and justify the use of different levels of force in self-defence.
– S 271(1) ‘minor’ unprovoked assault (not intended/likely to cause death or GBH)

– S 271(2) ‘major’ unprovoked assault (intended/likely to cause death or GBH)

Self-defence, ‘minor’ unprovoked assault, s 271(1) QCC

 When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the
assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not
such as is likely, to cause death or grievous bodily harm.
 Note: Does not apply where there is intention to cause death or GBH or where there is likelihood of this occurring

Self-defence, ‘minor’ unprovoked assault, s 271(1) QCC Elements

 Conduct: Unlawful, unprovoked assault by the victim
 Force used in self-defence (by the accused) is not intended and not likely to cause death or GBH, s 271(1)
 Objective component: Use of force that is reasonably necessary to make effectual defence against the assault. Judged in
relation to the type and nature of the attack and possible opportunities for retreat.

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 Note: excessive force is unlawful, s 283 QCC. BUT it may be possible to rely on honest and reasonable mistake regarding the
necessity of force, s 24 QCC

Self-defence, ‘minor’ unprovoked assault, s 271(1) QCC Elements – CONDUCT Unlawful, unprovoked assault
 Unlawful (s 246 QCC) assault by the victim (assault, s 245 QCC
 actual force or threatened force
 Assault may continue even where a person sleeps provided threat remains, see Secretary (1996)

 Victim MUST unlawfully assaults accused - Accused retaliates in self-defence = OK for self defence
 Accused provokes victim -Victim assaults accused - Accused retaliates = NOT ok for self defence. (Definition of provocation
in ss 268, 269)

Self-defence, ‘minor’ unprovoked assault, s 271(1) Elements – FORCE not intended and not likely to cause death or GBH
• Force used must not be intended to (subjective) or likely (objective) to cause death or GBH.
• (P) death occurs regardless? Question whether s 271(1) applies. Still critically debated by some
• See Prow [1990], may apply as long as force reasonable necessary and not intended or likely to do so. (P) Likely? Not expected
• In case of death s 271(2) may be more appropriate?

Example - Prow [1990]: Verbal exchange between victim and accused then fight. Accused punched victim’s jaw and victim fell.
Accused continued to punch and kick. Medical evidence: punch to jaw most likely killed deceased (compare to later punches and
kicks). Insufficient evidence that the kicking caused the death.

Differentiate between force that is

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– Unexpectedly fatal;
and force that is
– Intended or likely to be so

S 271(1) QCC – Objective component: Force reasonably necessary

 Force must be reasonably necessary (objectively determined) to make effectual defence against the assault
 State of mind of the accused is irrelevant see: Gray (1998)
 Question of fact for the jury to decide
 Mistake s 24 QCC might apply where honest and reasonable mistake re necessity of force used (I thought I had to do so & soo
because)

S 271(1) QCC – Objective component Force reasonably necessary

Types of factors that can be taken into account to assess whether force was ‘reasonably necessary’:
 Surrounding circumstances/nature of assault
 Although not a specific requirement, possible opportunity for retreat
 History (not too remote). See: Muratovic [1967]
 No specific requirement for proportionality of force (however, consider that force must not be likely to cause death or GBH)

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Self-defence, s 271(2) QCC-’major’ unprovoked assault

 If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using
force by way of defence believes, on reasonable grounds, that the person can not otherwise preserve the person defended
from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence,
even though such force may cause death or grievous bodily harm.

Self-defence, s 271(2) QCC-’major’ unprovoked assault –Elements

 Conduct: Unlawful, unprovoked assault by the victim
 Force used in self-defence (by the accused) was intended or likely to cause death or GBH, s 271(2)
 Subjective belief based on reasonable grounds that the person had to use the force used to preserve from death or grievous
bodily harm
 Note: It may be possible to rely on an honest and reasonable mistake about the existence of reasonable grounds, s 24 QCC
 Reasonable apprehension of death or GBH (must be actual and reasonable)
 Must force used be objectively necessary for the defence? See R v Gray

S 271(2) QCC-Unlawful, unprovoked CONDUCT

 Unlawful unprovoked assault by the victim: Same consideration as above for s 271(1) QCC apply
 Force used by the accused was intended (subjectively) or likely (objectively) to cause death or GBH

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S 271(2) QCC-Unlawful, unprovoked CONDUCT

Muratovic [1967]: were the insults provocation? Was the assault provoked?:
1) Victims advised that they wanted to kill accused in prev. fight 6 days ago
2) Accused insults victims (words alone)
3) Victims commence fight (was this provoked by accused?)
4) Accused stabs and kills one, wounds another
5) Held: provocation was not there!

S 271(2) QCC-Unlawful, unprovoked Subjective belief

 Subjective belief of the accused on reasonable grounds that they had to use force in order to preserve from death or grievous
bodily harm (believes force used is necessary to survive the attack)
 Person must hold the belief (subjective, depends on individual accused)
 Belief must be based on reasonable grounds (objective)
– Was possibility for retreat open? Johnson [1964] Consideration but not specific requirement of the section

– No other choice to preserve self

– No specific requirement for proportionality but a consideration

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 Mistake of fact, s 24 QCC can apply where a person is honestly and reasonably mistaking about the existence of reasonable
grounds (subjective belief)

S 271(2) QCC-Unlawful, unprovoked Apprehension of death/GBH

 Did the accused have an actual apprehension of death or GBH and was the apprehension of death or GBH reasonable in the
circumstances?
 Factors to consider in regards to apprehension are not only particular assault but also: e.g. history and circumstances, prior
acts of the victim, see Muratovic [1967] (but not too remote)
 Question of fact for jury to decide
 Mistake of fact, s 24 QCC does not apply here because this is an objective element NOT a subjective one)

Example
Gray (1998) - Rival motorbike gangs. Animosity over several months, racial insults etc. Evidence of threats against accused (‘cut
your throat’), family and daughter (‘burn down your house’). Deceased came to the house with others armed with baseball bats etc.
Threats made to accused. Rocks etc. thrown at house. Accused shot in crowd with a .22 semi-automatic rifle, injured two and
fatally shot one. Held – is self defence

Self-defence, s 271(2) QCC

• No requirement for s 271(2) QCC that force is ‘reasonable necessary’ as in s 271(1) QCC. See Gray (1998)

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• Judicial debate on this point

Self-defence –‘provoked’ assault, s 272 QCC

 When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults the person
with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce the person to believe,
on reasonable grounds, that it is necessary for the person's preservation from death or grievous bodily harm to use force in
self-defence, 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

Self-defence –‘provoked’ assault, s 272 QCC –Elements

 Conduct: Unlawful, provoked assault by the victim
 Subjective belief based on reasonable grounds that it was necessary for the person's preservation from death or grievous
bodily harm to use force in self-defence
 Note: It may be possible to rely on an honest and reasonable mistake about the existence of reasonable grounds, s 24 QCC
 Reasonable apprehension of death or GBH (must be actual and reasonable)
 Force used was objectively reasonably necessary for the defence
 Application of s 272 (1) must not be excluded under s 272(2) QCC

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Self-defence –‘provoked’ assault, s 272 QCC –Elements - CONDUCT

 Accused has unlawfully provoked or assaulted the victim (see ss 268, 269 QCC)
 Victim then unlawfully assaults accused (see s 245 QCC) and accused has to defend him/herself against the assault
1) Accused provokes/unlawfully assaults victim
2) Victim unlawfully assaults accused
3) Accused retaliates

Self-defence –‘provoked’ assault, s 272 QCC –Elements - Subjective belief

 Subjective belief by the accused based on reasonable grounds that it was necessary for the person's preservation from death
or grievous bodily harm to use force used in self-defence
 See discussion above

Self-defence –‘provoked’ assault, s 272 QCC –Elements - Apprehension of death & use of force
 Did the accused have an actual apprehension of death or GBH and was the apprehension reasonable (objective)?
 Force used was reasonably necessary for the defence (objective)

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Limitation of applicability as per s 272(2) QCC

Section does not apply if:
 person using force which causes death or grievous bodily harm first began the assault with intent to kill or to do grievous bodily
harm to some person [accused provoked with intent to kill or do GBH];
 person using force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm to some
person before the necessity of so preserving himself or herself arose [accused endeavoured to kill or do GBH]; 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 [accused did not decline further conflict].

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Defence of another, s 273

 In any case in which it is lawful for any person to use force of any degree for the purpose of defending himself or herself
against an assault, it is lawful for any other person acting in good faith in the first person's aid to use a like degree of force
for the purpose of defending the first person.

Defence of another, s 273 - Elements:

 A person is assaulted and can rely on self-defence, ss 271-272 QCC
 Accused defends that person by using the same amount of force
 Accused acts in good faith

Compulsion (sometimes called duress), s 31(d) QCC

1. Threat - There needs to be a threat of serious harm or detriment and the perpetrator needs to appear in a position to carry out
the threat, see s 31(1)(d)(i) QCC
2. Subjective component - The accused must reasonably believe that the threat will be carried out in case of their non-compliance
3. Objective component - The response to the harm threatened is reasonably appropriate (proportionate), s 31(1)(d)(iii) QCC
Note: As per s 32(2) QCC the excuse does not apply to treason, murder, piracy, or GBH

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Emergency, s 25 QCC
1. Emergency - There needs to be a an extraordinary or sudden emergency, s 25 QCC
2. Subjective component - The accused must believe that there is an emergency (mistake can apply, s 24 QCC)
3. Objective component - Would the ordinary person have reacted differently?
Note: Mostly relevant for driving offences

Module 9 - Insanity, diminished responsibility and intoxication

Objectives
• Defence of insanity, s 27 QCC
• diminished responsibility, s 304A QCC
• Intoxication, ss 27, 28 QCC
• relationships between these defences and the excuse of act independent of will, s 23(1) (a) QCC,

Presumption of sanity, s 26 QCC

 Every person is presumed to be of sound mind…until the contrary is proved, s 26 QCC
 S 27 QCC is the defence that can be raised by defendant in regards to any offence
 Note: Accused has the evidential and also the persuasive burden of proof for the defence of insanity/mental impairment on

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 the balance of probabilities, s 27 QCC.

 But: Falconer 1990: Crown (or a judge) should raise insanity in certain circumstances in community interest
 Question of law for judge to decide whether this defence cam be raised on the evidence. Must be some ‘reasonable basis’ to
support (for example: expert medical testimony)

Insanity, s 27 QCC
 Trial judge’s duty to direct jury on insanity where there is evidence, notwithstanding that the accused does not want to rely on it,
see R v Schafferius
 Note: If s 27 is successfully raised there will be a qualified acquittal, s 647(1) QCC (‘not guilty by reasons of unsoundness of
mind’). BUT subsequently dealt with under provisions of mental health legislation (Mental Health Act 2000 (MHA): e.g.
detention in mental health facility) maybe accused doesn’t want it cause stay in institution could be longer
Mental Health Act 2000 (‘MHA’) (Qld)
• Mental Health Court has jurisdiction to determine questions of insanity or diminished responsibility, s 257 MHA and/or fitness to
plead and stand trial, s 613 and s 645 QCC
• Regarding the Mental Health legislation refer to Kenny 8.116-8.121

M’Naghten-Rules (Common Law)

• M’Naghten (1843): shot and killed an English civil servant mistaking him for the British Prime Minister. M’Naghten had paranoid
delusions and thought he was persecuted by spies and the government
• Rules developed (operating under common law) are essentially the same as the defence of insanity for Qld under s 27 QCC (see:
Falconer (1990))
•Cases from common law jurisdictions bear increased relevance in Qld

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Insanity, s 27 QCC - Elements

1. Mental disease or natural mental infirmity (question of law whether raised on evidence/decided by judge)
Accused needs to be deprived of the following capacity (at least 1 is needed)
2. The capacity to:(question of fact/ decided by jury. Jury must decide either sane or not based on evidence )
a) Understand what they are doing; or
b) Control their actions, or
c) Know that they ought not do what they are doing
Note: Defence commonly referred to as insane automatism

Insanity, s 27(2) QCC-Delusions this special section is not used very often
• Qualification regarding persons who act due to delusions on some specific matter(s), s 27(2) QCC

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 Means that you would get convicted on what the situation the delusional person thought he was he eg thought he was killing a
sausage s 27(2) QCC
• Person suffering from delusions cannot rely on the defence of insanity unless they satisfy the requirements under s 27(1) QCC
(show that delusions arise from a mental disease or natural mental infirmity, and that they were deprived of one of the capacities, s
27(1)(a)-(c) QCC

S 27(1) QCC Mental disease

 Now: we use narrow test - Internal cause test
 Radford (1985): [Internal Test], “…the essential notion appears to be that in order to constitute insanity in the eyes of the
law….[there must be] and underlying pathological infirmity of the mind be it of long or short duration and be it permanently or
temporary, which can be properly termed mental illness,
 [External Test]” - as distinct from the reaction of a healthy mind to extraordinary external stimuli

S 27(1) QCC Mental disease (IV) Now: Narrow!: Internal cause test
•R v Falconer (1990): mental disease has an internal rather than external cause (need recognised mental disease, which will be
proved by expert medical evidence)
•Cause and characterisation, of a condition as a mental disease is a question of law for the Judge

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•Medical evidence: Important! Highly dependent upon prevalent views of medical profession which is subject to change and, in
some instances, debate

S 27(1) QCC mental Disease (V)

Summary of some conditions that have been considered to be a mental disease by the courts (in case law)
• Epilepsy
• Cerebral arteriosclerosis
• Hyperglycaemia
• Delirium tremens
• Depression

S 27(1) QCC ‘Natural Mental Infirmity’

•Congenital defects such as –‘arrested and retarded development’ of the mind. Rolph [1962]
Deprivation of capacities (I)
The mental disease must deprive the person of one (or more) of these capacities (complete deprivation):
a) Capacity to understand what they are doing, or
b) Capacity to control their actions, or
c) Capacity to know that they ought not do what they are doing

Deprivation of capacities (II) s 27(1)(a) & s 27(1)(c)

•Different categories:
1. s 27(1)(a)(c) QCC: Relating to awareness of the accused

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– S 27(1)(a): physical nature. capacity to understand what they are doing (know the physical nature or physical consequences
of what they are doing, ex do you know this is another person and you are choking them?: Porter(1933) estranged from wife,
had too much coffee & aspirin & limited sleep, had nervous breakdown, tried to reconcile with wife – no good. Took son and
poisoned him (died), the wanted to kill himself but police got him. Was he mental diseased, did he know physical nature or
consequences of what he was doing? Held – yes he lost capacity – his mental state was that the killing of son was the same
as breaking a twig
– S 27(1)(c): morally wrong/pyshi. capacity to know that they ought not do what they are doing (know what is right and what is
wrong, ex you know you are choking someone, but you don’t know its wrong: ‘morally wrong’ Porter (1933): Micheaux (1984)
GP convicted of sexual offence, he was schizophrenic & personality disorder. Held NO, disease did not deprive of capacity,
he could still understand that it was morally wrong
2. S 27(1)(b) relating to the ability to control one’s actions (acting under irresistible impulses, R v Micheaux (1984))

Overview Murder/ Diminished responsibility, s 304A QCC

I. Physical elements of murder (see Study Module 5)
II. Mental elements of murder (see Study Module 5)
III. Defences

General defences
1. General defences For example insanity, s 27 = Consequence: acquittal (in case of insanity, s 27 qualified acquittal)
2. Partial defences to murder, (see, e.g. 304, 304B QCC) including s 304A QCC = Consequence: murder charge is reduced to
manslaughter charge

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Diminished responsibility, s 304A QCC (I)

(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.

Diminished responsibility, s 304A QCC (II)

 Diminished responsibility is a partial defence to murder. Where successfully raised murder charge is reduced to manslaughter
charge
 s 304A(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.
Note: Evidential burden and persuasive burden of proof on the balance of probabilities are on the defendant

Diminished responsibility, s 304A QCC Elements

1. Abnormality of the mind

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2. Arising from one of these conditions: a condition of arrested or retarded development of the mind or inherent causes or induced
by disease or injury
3. Substantially impairs the person’s :
4. capacity to
a) Understand what they are doing, or
b) Control their actions, or
c) Know what they ought not do what they are doing

Overview s 304A QCC and s 27 QCC

S 304A Diminished responsibility S 27 Insanity

ONLY applies to Murder (partial defence reduces to Any offence (qualified acquittal)
manslaughter)
At time suffering from a state of abnormality of the mind Mental disease or natural mental infirmity
arising from:
 arrested or retarded development of the mind; or

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 inherent causes; or
 induced by disease or injury.

SUBSTANTIALLY IMPAIR capacity (less than deprivation) DEPRIVATION of capacity

(a) understand (a) understand
(b) control (b) control
(c)know (c )know

1. Abnormality of the mind

R v Rolph [1962] - “a state of mind so different from that of ordinary human beings”
R v Rolph [1962] - “normal people in the community vary greatly in intelligence, and disposition; in their capacity to reason, in the
depth and intensity of their emotions; in their excitability, and their capacity to exercise self-restraint, etc., the matters calling for
mention varying with the facts of the particular case; and until particular quality said to amount to abnormality of mind, goes beyond
the varied types of people met day to day, no abnormality exists.”
Example: Post-traumatic stress syndrome/disorder, severe depression.
Not sufficient: emotions such as anger and jealousy

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2. Arising from…..
 arrested or retarded development of the mind or inherent causes, or induced by disease or injury

3. Substantially impairs
 Mansfield in R v Rolphquestion of degree and essentially one for the jury --but certainly more than some impairment.
 A similar view R v Beissper Hart substantial does not mean total … at the other end of the scale, substantial does not mean
trivial or minimal. It is something in between … [it is up to the jury] to say on the evidence, was the mental responsibility
impaired, and if so, was it substantially impaired?

4. capacity to…
a) Understand what they are doing; or
b) Control their actions; or
c) Know that they ought not do what they are doing
See above discussion regarding insanity, s 27 QCC
Importance of medical evidence? (I)
R v Milloy
• Expert evidence critical
• Convicted of two murders regarding shooting incident at Jimboomba Roadhouse. He was under stress due to the breakdown of
his relationship with his fiancée; had overdue car payment; had other financial pressures; had little money for petrol; army figure,
`just following' the pictures(army) in his mind, that ‘it didn't seem real’.
• Three doctors psychiatric evidence -appellant suffering from an adjustment disorder and/or depression and that this partially
impaired or distorted or diminished his ability to control his actions and to know that he ought not shoot people.

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• Fourth doctor of view: did not suffer from an abnormality that arose from one of the prescribed conditions. The symptoms
described would not have deprived him of any of the capacities. Situation ‘boiling down to the fact that he was essentially upset
over a break up of a relationship and, as a result, took this out on various other people’.

Appeal on basis judge refused to direct jury on s 23 (1)(a) (act independent of will).
On s 23 (1)(a), per Thomas J - ‘dissociation caused by a low stress threshold and surrender to anxiety cannot fairly be said to result
from a psychological blow’
‘the stresses to which appellant was subject –break up of relationship; overdue car payment; financial pressures, jealousy and
anger -- it is immediately apparent these psycho-social factors do not appear as a particularly promising basis for a case of sane
automatism’.

Relationship between the defences? (I)

Where multiple conditions are operating in any given factual circumstance
– s 23(1)(a) the excuse of act independent of will (sane automatism),

– s 27 and the defence of Insanity (insane automatism),

– s 304A,and where a death has occurred the defence of Diminished Responsibility,

can all be left to the jury in the one case.
See Falconer (1990) and Milloy [1993]

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Relationship between the defences? (II)

 Judge determines cause and characterisation of a condition under which an accused is acting with the benefit of medical
evidence and the application of the internal cause test, (underlying pathological infirmity), and or the external cause test
(reaction of healthy mind to extraordinary external stimuli) see Radford (1985); Falconer (1990)
 Note: Where the internal cause test is raised and a death has occurred, circumstances of diminished responsibility, s 304A
QCC could also be considered.
 For relationship of defences with intoxication, s 28 QCC

S 28 QCC, Intoxication

Involuntary Intoxication Voluntary Intoxication

s 28(1)(2) QCC s28(3) QCC

Person is unintentionally intoxicated Intoxication may be considered where intent to cause
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Defence Accused may be lacking the required ‘specific intent’

Ss 27, 28(1),(2) QCC for the relevant offence

Qualified acquittal Mental element cannot be established (therefore

murder can’t be established, but manslaughter can).
Possible liability for base offence

S 28 QCC, Intoxication and Voluntariness

Relationship between: intoxication, act independent of will, insanity and accident
•Kusu [1981] Circumstances of dissociation caused by intoxication due to drugs and/or alcohol and/or other substances alone or
together, will not give rise to: (because intoxication overrides everything else)
– Act independent of will, s 23 (1)(a);

– Insanity, s 27 (unless intoxication has been caused without intention, s 28(1)(2))

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– See also Clough [2011]: pre-existing mental condition and becoming intoxicated=cannot rely on s 27 while effects of
intoxication continue because the intoxication causes the lack of capacity in that case
– Diminished responsibility, s 304A, see also Miers [1985]
•BUT: May apply in case of accidents (drunk people can have accidents) (Kusu [1981] (minority view))

Unintentional intoxication raising insanity, ss27, 28(1)(2) QCC

S 28(1) QCC: The provisions of section 27 apply to the case of a person whose mind is disordered by intoxication or stupefaction
caused without intention on his or her part by drugs or intoxicating liquor or by any other means
Note: Same onus and standard of proof as s 27 QCC: Evidential and the persuasive burden on the accused on balance of
probabilities
Consequence of successfully relying on s 28(1)(2): Qualified acquittal (on grounds of insanity), 647(1) QCC

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Unintentional intoxication raising insanity , ss 27, 28(1)(2) QCC Elements:

1. Mind disordered by Intoxication/ Stupefaction by drugs or intoxicating liquor or by any other means
2. Without intention to get intoxicated as this is only for involuntary intoxication
3. Deprivation of one of the three capacities set out in s 27 QCC

Unintentional intoxication raising insanity, ss 27, 28(1)(2) QCC (III)

1. Mind disordered by intoxication or stupefaction
• Intoxication or stupefaction/ Caused by drugs or intoxicating liquor or by any other means. (See OED def. Haggie v Meredith)
• Mind disordered by Intoxication or stupefaction.
• Must be proved on evidence
• Question of fact for the jury to determine whether condition existed at the time of the offence, see Cameron v the Queen
• Medical evidence needed

Unintentional intoxication raising insanity, ss 27, 28(1)(2) QCC (IV)

2. Without intention: Reinforced by s 28(2) QCC: They do not apply to the case of a person who has, to any extent intentionally
caused himself or herself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or
not and whether his or her mind is disordered by the intoxication alone or in combination with some other agent.

Unintentional intoxication raising insanity, ss 27, 28(1)(2) QCC (V)

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2. Without intention: Excludes cases where intentional intoxication is an operating factor, even though combined with
circumstances of involuntary or unintentional intoxication

Unintentional intoxication raising insanity, ss 27, 28(1)(2) QCC (VI)

2. Without intention:
• Unintentional?
– Without intention (e.g. drink spiking)

– Mistake, s 24 (honest/reasonable?)
• Scope? How about a person who drinks to become ‘convivial’ but not intoxicated?
With intention
• Covers those who deliberately consume alcohol and or drugs and or other substances:
– With the purpose of becoming intoxicated (intentional)

– Those who drink of choice regardless of what their purpose is in drinking (self-induced/voluntary/fault)

Unintentional intoxication raising insanity, ss 27, 28(1)(2) QCC (VIII)

2. Without intention
Problem arises when someone who has taken medication and drinks, but becomes intoxicated as a result of the unknown effect of
the combination of the two? Included?

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Deprivation of one of the three capacities in s 27 QCC

3. MUST have Deprivation of one or more of the three capacities listed in s 27 QCC:
a)Understand what they are doing; or
b)Control their actions; or
c)Know that they ought not do what they are doing

Intoxication and crimes of special intent , s 28(3) QCC (I)

 S 28(1)(2) applies to any criminal offence. But 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.

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 Meaning: s 28(3) only applies where an intention to cause a specific result is an element of an offence (mental element)
Intoxication and crimes of special intent , s 28(3) QCC Intent to cause specific result required for, e.g.:
•Arson, Buckley (1982)
•Stealing, O’Reagan [1961]; Kaminski [1975]
•Robbery, Kaminski [1975]
•Murder, see O’Regan [1961]
Not required for, e.g.:
•Rape, Thompson [1961]; Holman [1970]
•Manslaughter, O’Reagan
Consequence:s 28(3) does not apply, e.g., in case of rape/manslaughter as no specific (mental) intent is required
Intoxication and crimes of special intent , s 28(3) QCC (IV)
•Consequence of successfully relying on s 28(3): Negates intention, but does not take away criminal resp. for any residual offence,
where available
•Operates where intoxication is complete or partial, and or intentional or unintentional
•Question of the effect of intoxication on the existence of intent is question of fact for jury to determine.
Note: Defendant must raise intoxication on evidence (not necessarily complete intoxication as partial is also sufficient). Prosecution
must prove beyond a reasonable doubt that intention was in fact present.

Module 10 – Inchoate and Secondary Liability

Objectives
• The nature of attempts and secondary responsibility
• The relationship between general attempt and specific attempt provisions

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• The Nature of, and the differences and relationship between different party provisions
• How to break down and apply these provisions to any set of given circumstances

I. Attempts, s 4(1) QCC

 When a person, intending to commit an offence, begins to put the person’s intention into execution by means adapted to its
fulfilment, and manifests the person’s intention by some overt act, but does not fulfil the person’s intention to such an extent as
to commit the offence, the person is said to attempt to commit the offence.

Assessing Criminal liability for attempts

1. Identify first whether offence has been completed (where yes, no attempt of this offence possible)
2. Identify whether the offence can be attempted: If the QCC has already an attempt provisions (Ex attempted murder s 306
QCC) then you go straight there. If not THEN you can use this attempt. No attempt possible in case of preparation provision
(ie no attempt of attempt possible,
3. Identify how it can be attempted, ie, specific attempt offence (eg s 306 QCC attempted murder) or general attempt provision
(s 535 QCC)

Assessing Criminal liability for attempts

I. Mental elements
Intention to commit the criminal offence (all of the physical elements) in question (even for offences that would not require intent
when being completed!) (debatable)

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II. Physical elements

1. Sufficiently proximate execution - ‘execution by means adapted to its fulfilment’
2. Overt act – Manifestation of an overt act (closely related to above proximity)
III. Defences and excuse
Do defences and excuse apply?

Sufficiently proximate execution?

•Merely preparatory acts are not enough
•Necessary to put intention into execution by some overt act
•Number of tests developed to distinguish between merely preparatory acts and actual attempt (guidance):
– Last act (last step) test: has defendant done last step in their power towards committing the offence getting guns ready to
kill, but not going out to do it is NOT sufficient proximity)
– Equivocality (Unequivocally) test: defendant does an act towards completion and there can be no other purpose than
completion
•Tests only for guidance and common sense approach on case by case basis

Assessing Criminal liability for attempts – Impossibility(impossible to achieve)

• Where impossible in a legal sense (offence attempted does not exist, eg, adultery) no criminal responsibility

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• Where offence cannot be completed because it is impossible to do (factual sense or circumstances) may still be criminally liable,
eg R v Shivpuri [1986] trying to steal painting that is no longer there, Britten v Alpogut [1987] receiving stolen goods which are not
stolen

2. Participation
1. Principal offenders

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2. Secondary Responsibility (ex. tells some to do it)

Principal Offender, s 7(1)(a) QCC

When an offence is committed, each of the following persons is deemed to have taken part in committing the offence […]
(a) every person who actually does the act or makes the omission which constitutes the offence;

Principal offenders
• Joint principal offenders (complete the elements of the criminal offence together, eg in totality)
• Innocent agent, s 7(4)
Any person who procures another to do or omit to do any act of such a nature that, if the person had done the act or made the
omission, the act or omission would have constituted an offence on the person’s part, is guilty of an offence of the same kind, and
is liable to the same punishment, as if the person had done the act or made the omission; and the person may be charged with
doing the act or making the omission.
• Eg importing drugs without knowing

Secondary liability, s 7(1)(b)-(d)

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence

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(c) every person who aids another person in committing the offence;
(d) any person who counsels or procures any other person to commit the offence.

Overview, S 7 QCC-Secondary responsibility

I. Physical elements
1. Commission of principal offence by principal offender (including relevant mental elements where applicable)
2. Enabling, aiding, counselling or procuring by the secondary
II. Mental elements
1. Intent to enable, aid, counsel or procure
2. Knowledge of the offence
III. No withdrawal didn’t withdraw
IV. Defences and excuses
Do any defences and excuses apply?

S 7(1)(b) Enabling, Aiding

• Aiding: Support to help or assist, see Beck [1990] (ex. giving information or equipment)
• Enabler: Usually some form of assistance prior to the act (usually not present of the time of the commission of the offence)
For S 7(1)(b) it is immaterial whether aiding/enabling was successful

S 7(1)(c) Aiding in committing the offence

• Aiding in committing the offence in actuality

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The involvement of the secondary has actually aided the principal in committing the offence.

S 7(1)(d), 9 Counselling
NOT there at time of offence
• Counselling: Encouraging another to commit the offence through words or actions, Oberbillig [1989]
•S 9: even if different offence is committed by principal than was counselled secondary may still be criminally liable where the
offence is a ‘probable consequence’

S 7(1)(d) QCC Procuring

NOT there at time of offence
– Procuring: Conduct of secondary brings about the offence (goes beyond counselling)

– Causation necessary here. (the procuring must be sufficient to cause the offense)

Withdrawal
Possible for secondary to withdraw

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• Mere internal remorse not enough

• Development of different tests (case by case basis)
– Strict-test: No withdrawal possible once effectively aided, enabled, counselled or procured (see Menitti)

– Previous participation: tries cancelling out previous action; BUT crim. Resp. remains where participation continues to
contribute to the commission of the offence
– Reasonable Undoing: Reasonable action to cancel out previous involvement (irrelevant if not effective)

– Timely communication: timely communication is enough

Mental element
• Knowledge of the essential elements of the offence
– Needs to know that principal is committing the offence and what their state of mind (intention) was where relevant. Secondary
does not need to know all the details
• Secondary needs intention to aid, enable, counsel or procure
– Where they are unaware that they are aiding, they are not criminally responsible, see Clarkson

Extension of secondary liability via s 8 QCC

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When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the
prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the
prosecution of such purpose, each of them is deemed to have committed the offence.

Extension of secondary liability via s 8 QCC Elements

S 8 QCC -Prosecution of a common purpose
I. Commission of offence in prosecution of common purpose
II. Intention - Intention to prosecute an unlawful purpose
III. Connectivity between common purpose and committed offence
IV. Defences and excuses
Consider whether any excuses and defences apply

Accessory after the fact, s 10 QCC

A person who receives or assists another who is, to the person’s knowledge, guilty of an offence, in order to enable the person to
escape punishment, is said to become an accessory after the fact to the offence.

Module 11 – Trial process and double jeopardy

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Objectives
 of the criminal trial process and
 the principle statutory provisions governing the process
 of the double jeopardy rules

I. Trials in the Magistrate’s Courts

• 96% of all trials in the Magistrate’s Courts (H. Douglas, 128)
• Summary /regulatory offences /indictable offences heard summarily (ss 552A,B,BB)
• Sentence no greater than 3 years, s 552H
• Indictable offence heard summarily recorded as simple offence, s 659 QCC
• No jury

II. Trials in the Superior Courts

• Committal hearing by magistrate, s 554 QCC
• Ex officio indictment, s 561 QCC
• Coroner’s investigation, Coroners Act
• Private Prosecutions (in case DPP won’t do it)

A. Committal Hearing

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• Preliminary hearing
• Magistrate determines if there is sufficient evidence to commit the matter to trial to the relevant court
• See especially s 110A Justices Act

B. Relevant Jurisdiction
• Magistrate can hear indictable offences summarily (Ch 58A) up until 3 years
• District Court, ss 60, 61 District Court Act = up until 20 years
• Supreme Court can theoretically hear all criminal matters but will only deal with those carrying a greater sentence than 20 years

C. Ex-officio indictment (from the power of the office) can also be used when defendant already committed but other charges turn
up and to save time that can issue this
• the prosecution can order an indictment and trial at a higher court whether the magistrate agrees or not
S 561 QCC ex officio indictment: in the discretion of the crown
• Even where no committal has taken place
• Generally no judicial review unless it constitutes an abuse of process (unfairness) (up to judge)

D. Commencement of proceedings
• After committal Crown needs to present indictment within 6 months of committal day, s 590(1) QCC, (extension possible)
• Indictment is written description of charge presented to the court by the prosecution, s 560 QCC
• Generally one charge per indictment, s 567 QCC but joinder of charges and accused possible, s 567-569
• After presentation of indictment matter is set down for trial

E. Pre-trial directions and pleadings

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• After indictment prosecution and defence can seek pre-trial directions and ruling, s 590AA
• Includes, joinder of charges, admissibility of evidence, stay of proceedings, no jury order

F. Arraignment
• Trial is deemed to commence when arraignment is read
• Accused subsequently has to plead, s 597 QCC (guilty or not guilty)
• Change from not guilty to guilty possible prior to verdict, s 631A QCC /Consider sentencing implications

G. No jury order
• Generally right to trial by jury, s 604 QCC
• Principles set out in Jury Act 1995 (Qld)
• Possibility of no jury order, s 614 QCC EX pre-trial publicity, R v Ferguson
• Where prosecution applies defence must consent, s 614(2) QCC

H. Legal representation
• entitled to defence by counsel, s 616 QCC
• Yet, funding limited, Legal Aid Queensland Act 1997
• As such no right to a state-funded lawyer in Qld as a matter of principle: Person needs to be indigent (poor) and be charged with a
serious offence - Dietrich (1992) drug trafficking)
• Possibility of stay until legal aid is granted is possible

I. Jury

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• Limits as to who can serve (not lawyers engaged in legal work, s 4(3) Jury Act)
• Exclusion, s 21 Jury Act
• 12 people plus reserve, ss 33, 34 Jury Act
• 8 peremptory challenges per side, s 42(3) Jury Act and indefinite for cause (eg bias), s 43 Jury Act
• Challenging entire panel, s 40 Jury Act
• Judge can discharge juror as per s 46 Jury Act
• Special challenge, s 47, eg publicity (Patel)
• Entire jury may be discharged as per s 48 QCC
• After jury has been sworn in discharge as per s 56 Jury Act
• S 59 Jury Act unanimous verdict; but majority verdict ok under s 59A QCC (not in case of murder)
• Discharging jury that is hung, s 60 Jury Act, requires prior Black Direction (where no majority verdict is possible)

J. VoireDire
• Submission by parties made to judge during the trial in the absence of the jury - For example admissibility of evidence and ‘no-
case to answer to’-submissions

K. No case to answer to
• Submission by defence after prosecution evidence
• Prosecution has not discharged evidentiary burden (therefore no case to answer to)
• Jury is not present
• If successful jury is directed to acquit defendant.
L. Other aspects

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• Defence presents evidence (if they do) after prosecution, s 618 QCC.
• Opening and closing speeches, ss 619 QCC
• Defence last unless they introduce evidence
• Cross examination, s 616
• Judge summing up, s 620 QCC.

M. Noelle Prosequi, s 563 QCC

• Crown advises court that they will not continue proceedings, s 563 QCC
• Accused is discharged but not acquitted, s 563(3) QCC
• Charges can be brought back at a later stage on a different indictment
• Nolle can be rejected by court if otherwise there would be an abuse of process, see R v Saunders

N. Stay of proceedings
• Courts can stay proceedings, eg
• Ex officio indictment
•Pre-trial publicity
• Abusive use of nolle prosequie
• Basis is right to a fair trial
• Permanent stay of proceedings/ temporary stay of proceedings

III. Double Jeopardy

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Mainly 4 situations:
1. Person cannot be tried for an offence of which they have already been convicted or acquitted, s 17 QCC
2. Where confessional evidence is excluded by the judge during a trial it cannot be later introduced at subsequent trial for another
offence (common law)
3. Earlier acquittal cannot be undermined in subsequent proceedings even for a different offences, eg perjury (common law)
(Carroll 2002 213 CLR 635) (tried for baby murder, on appeal acquitted, as dna developed over years –can’t charge for murder so
charge for perjury [cause he lied in original trial] double jeopardy applied. THEN public outcry so changed legislation change)
4. Person cannot be punished twice for the same criminal act, s 16 QCC

Exceptions to Double Jeopardy in Qld

Reaction to Carroll
• S 678B QCC: retrial for murder where fresh and compelling evidence
• S 678C QCC: retrial for 25 year offence based on tainted acquittal (ex perjury)

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Module 12 –Sentencing and appeals

A. Sentencing
I. Overview of sentencing and definitions
II. Sentencing considerations
III. Sentencing process
IV. Sentencing options

Overview- Reasons Purposes of Penalties and Sentences Act s 3 PSA

(a) collecting into a single Act general powers of courts to sentence offenders; and
(b) providing for a sufficient range of sentences for the appropriate punishment and rehabilitation of offenders, and, in appropriate
circumstances, ensuring that protection of the Queensland community is a paramount consideration; and
(c) promoting consistency of approach in the sentencing of offenders; and
(d) providing fair procedures—
(i) for imposing sentences; and
(ii) for dealing with offenders who contravene the conditions of their sentence; and
(e) providing sentencing principles that are to be applied by courts; and
(f) making provision so that offenders are not imprisoned for non-payment of fines without the opportunity of obtaining a fine option
order; and
(g) promoting public understanding of sentencing practices and procedures; and
(h) generally reforming the sentencing laws of Queensland; and
(i) providing for the imposition of an offender levy.

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Overview-Sentencing Guidelines, s 9(1) PSA

(a) to punish the offender to an extent or in a way that is just in all the circumstances; or
(b) to provide conditions in the court's order that the court considers will help the offender to be rehabilitated; or
(c) to deter the offender or other persons from committing the same or a similar offence; or
(d) to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was
involved; or
(e) to protect the Queensland community from the offender; or
(f) a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e).

Overview-definition. sentence s 4 PSA

‘sentence means any penalty or imprisonment ordered to be paid or served, or any other order made, by a court after an
offender is convicted, whether or not a conviction is recorded.’

Sentencing Considerations-s 9(2) PSA

In sentencing an offender, a court must have regard to—
(a) the maximum and any minimum penalty prescribed for the offence; and
(b) the nature of the offence and how serious the offence was, including—
(i) any physical, mental or emotional harm done to a victim, including harm mentioned in information relating to the victim
given to the court under the Victims of Crime Assistance Act 2009, section 15; and
(ii) the effect of the offence on any child under 16 years who may have been directly exposed to, or a witness to, the
offence; and
(c) the extent to which the offender is to blame for the offence; and

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(d) any damage, injury or loss caused by the offender; and

(e) the offender's character, age and intellectual capacity; and
(f) the presence of any aggravating or mitigating factor concerning the offender; and
(g) the prevalence of the offence; and
h) how much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences; and
(i) time spent in custody by the offender for the offence before being sentenced; and
(j) sentences imposed on, and served by, the offender in another State or a Territory for an offence committed at, or about the
same time, as the offence with which the court is dealing; and
(k) sentences already imposed on the offender that have not been served; and
(l) sentences that the offender is liable to serve because of the revocation of orders made under this or another Act for
contraventions of conditions by the offender; and
(m) if the offender is the subject of a community based order—the offender's compliance with the order as disclosed in an oral or
written report given by an authorised corrective services officer; and
(n) if the offender is on bail and is required under the offender's undertaking to attend a rehabilitation, treatment or other
intervention program or course—the offender's successful completion of the program or course; and

In sentencing an offender, a court must have regard to—s 9(2) PSA

(o) if the offender is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community
justice group in the offender's community that are relevant to sentencing the offender, including, for example—
(i) the offender's relationship to the offender's community; or
(ii) any cultural considerations; or

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(iii) any considerations relating to programs and services established for offenders in which the community justice group
participates; and
(p) anything else prescribed by this Act to which the court must have regard; and
(q) any other relevant circumstance.

Sentencing considerations violent offenders, s 9(3) PSA

(a) the risk of physical harm to any members of the community if a custodial sentence were not imposed;
(b) the need to protect any members of the community from that risk;
(c) the personal circumstances of any victim of the offence;
(d) the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damage resulting
from the offence;
(e) the nature or extent of the violence used, or intended to be used, in the commission of the offence;
(f) any disregard by the offender for the interests of public safety;
(g) the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type
committed;
(h) the antecedents, age and character of the offender;
(i) any remorse or lack of remorse of the offender;
(j) any medical, psychiatric, prison or other relevant report in relation to the offender;
(k) anything else about the safety of members of the community that the sentencing court considers relevant.

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Sentencing considerations, sex offences to child under 16, s 9(4)(5)(6) PSA

– s 9(4) PSA (sexual Offence under 16) offender must serve an actual term of imprisonment, unless there are exceptional
circumstances.
– s 9(5) PSA: exceptional circumstances may exist where there is closeness in age between the offender and the child
Read s 9(6) PSA for considers.

Sentencing process
– Courts need to provide reasons for sentence imposed, s 10(1)(a) PSA

– Recording of sentence if lower or intermediate penalty

– Discretion of recording, s 12(1) PSA. Consider s 12(2) PSA: nature of the offence and the offender's character and
age as well as the impact that recording the conviction will have on the offender’s economic and social wellbeing and
chances of finding employment.
– Obligation to record: probation order with up to 1 year imprisonment, ss91(b), 92(1)(b) PSA; intensive correction order s
111 PSA; imprisonment, s 152 PSA including suspended imprisonment, s 143 PSA.
– Consequence not recorded: not considered a conviction for any purpose and will only be recorded in the court records,
s 12(3) PSA. No impact on travelling and career options
– Receiving information relevant for sentence, s 15 PSA (e.g. Victim Impact Statement)

– Where evidence is disputed see s 132C Evidence Act 1977 (Qld)

– Possibility of cross-examination

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Sentencing options mandatory – probation - fines

Lower level penalty Intermediate penalty Higher level penalty
•Discretion to record conviction, s 12 PSA •Discretion to record conviction, s •Conviction recorded
•Fines (Part 4) 12PSA •Intensive Correction Orders (ICO) (Part 6)
•Community Service Orders (CSO) •Suspended sentence of imprisonment,(Part 8)
(Part 5) •Imprisonment (Part 9)
•Probation Order (Part 5) •Serious Violent offender (Part 9A)
•Repeat child sex offences (Part 9B)
•Indefinite imprisonment,(Part 10)

B. Appeals
Overview appeal
Appellate court

Magistrates Court District Court Court of Appeal High Court

S 222 Justice via s118 S35, s35A Judiciary Act
Trial Act District Court Act & s668D QCC 1903 (Cth)
court District Court (C of appeal) Court of Appeal

Supreme Court( C of appeal) s668D QCC

(chapter 67 QCC)

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Appeal from Magistrates to District Court- Requirements

222 Justices Act -Appeal to a single judge - If a person feels aggrieved as complainant, defendant or otherwise by an order
made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1
month after the date of the order to a District Court judge.

Appeal from Magistrates to District Court-Evidence

223 Appeal generally a rehearing on the evidence
(1) An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the
justices.
(2) However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is
satisfied there are special grounds for giving leave.
(3) If the court gives leave under subsection (2), the appeal is--
a) by way of rehearing on the original evidence; and
b) on the new evidence adduced.

Appeal from Magistrates to District Court-Consequences

225 Justice Act Powers of judge on hearing appeal
(1) On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter
the judge considers just.
(2) … judge may send the proceeding back …directions for rehearing or reconsideration.

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118 District Court Act: Appeal to the Court of Appeal BUT–need leave from the Court of Appeal: Question of law of some
significance

Appeals against conviction from District or Supreme Courts to Court of Appeal-Right or leave
Right to appeal is on the question of law only s 668D(1)(a)
However you may want to appeal on question of law and question of fact s 668D(1)(b) QCC
Question of fact: Decided by jury (or magistrate in lower court).
Question of law: Decided by the judge (or magistrate in lower court).

Appeals against conviction from District or Supreme Courts to Court of Appeal- On time 671 QCC Time for appealing
(1) Any person convicted desiring to appeal to the Court, or to obtain the leave of the Court to appeal from any conviction or
sentence, shall give notice of appeal or notice of application for leave to appeal, in the prescribed manner, within 1 calendar month
of the date of such conviction or sentence.
(3) The time …may be extended at any time by the Court…

Appeals against conviction from District or Supreme Courts to Court of Appeal- Fresh evidence S 671B QCC
– May admit fresh evidence –Mickelberg (1989) 167 CLR 259 -•Fresh essentially means ‘new’ (not available at original hearing)

– Would it have made a difference? Toohey & GaudronJJ para 25:

‘In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that
the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it
…. or, if there be a practical difference, that there is a significant possibility that the jury, acting reasonably, would have acquitted
the accused. … ‘

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Appeals against Conviction from District or Supreme Courts to Court of Appeal- Grounds of appeal s 668E (1) QCC,
– is unreasonable; or

– cannot be supported having regard to the evidence; or

– is a wrong decision on a question of law; or

– on any ground whatsoever there was a miscarriage of justice

Appeals against conviction from District or Supreme Courts to Court of Appeal- Proviso S 668E(1A) QCC
However, the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in
favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
– Loss of a real chance of acquittal, Festa (2001) HCA 72 at 631-632; Wilde(1988): Substantial miscarriage of justice

Appeals against conviction from District or Supreme Courts to Court of Appeal- Consequences
The appeal court can quash the conviction and direct an acquittal, s 668E(2) QCC
Special provisions on appeal include:
1. powers to substitute alternative convictions, where supported on the evidence, s 668F (1)(2) QCC;
2. power to order a new trial on grounds of miscarriage of justice, s 669 QCC.

Fowler 1984 154 CLR 267: two step process for considering retrials.

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1. is evidence cogent.
2. is ordering a retrial just.

Checklist
Checklist for appeals from District and Supreme Court against conviction
• 671 In time? 1 calendar month
• 668D Right or leave to appeal?
• 671B Fresh evidence admissible?
• 668E(1) What are the grounds?
• 668E(1A) Question whether miscarriage substantial (loss of chance of acquittal)/(Wilde Question whether fundamental error)
• 669 New trial?

Appeals against sentence-Magistrate’s court

Defendant - Where plead not guilty: s 222(1) JA appeal in District Court
Defendant - Where plead guilty: s 222(2)(c) JA appeal in District Court
Attorney General - Where indictable offence determined summarily: s 669A(1)(b)QCC to Court of Appeal (if defence are also
appealing conviction and / or sentence effect here is to send entire appeal to Court Appeal)

Defendant appeals against sentence

– Grounds for appeal: - Manifestly excessive sentence

– District / Supreme Court Judge’s decision

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– Defendant must obtain the leave of the court, s 668D(1)(c) QCC

S 668E(3) QCC: On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less
severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution
therefore, and in any other case shall dismiss the appeal.

Attorney General appeals, s 669A QCC

No right to appeal an acquittal but can appeal against sentence
Can appeal - 669A (1A) order staying proceedings or further proceedings on an indictment. See eg: Ferguson 2008 QCA 227
Can refer - 669A (2) refer any point of law that has arisen at the trial upon indictment of a person
Can refer - 669A(2A) refer any point of law that has arisen at the summary trial of a charge of an indictable offence.

Appeals to the High Court

Judiciary Act 1903 (Cth), s 35(2) obtain special leave. S 35A basis for leave:
In considering whether to grant an application for special leave to appeal to the High Court under this Act or under any other Act,
the High Court may have regard to any matters that it considers relevant but shall have regard to:
(a) whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law:
(i) that is of public importance, whether because of its general application or otherwise; or
(ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of
opinion between different courts, or within the one court, as to the state of the law; and
(b) whether the interests of the administration of justice, either generally or in the particular case, require consideration by the
High Court of the judgment to which the application relates.

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Royal prerogative of mercy and pardon

• Royal prerogative of mercy
• Pardon
• Executive pardon

1. What is a committal hearing? Magistrate decides whether sufficient evidence is available to commit the defendant to trial to
a higher court
2. What is an indictment? Happens at arraignment where the charges/indictment is read out – defendant then pleads
3. What is an ex-officio indictment? Can happen with or without the committal hearing
4. Explain which courts will hear appeals from where? 1. Magistrates to single judge at District court 2. District court to court of
appeal 3. Supreme Ct to Ct of Appeal 4. Ct appeal to High Ct
5. Does the Attorney General have the right to appeal in Queensland? Yes – can appeal sentence and review questions of law.
CANNOT appeal an acquittal
6. How many jurors are on a jury? 12 + 3 reserves
7. Explain different types of sentences. Fines, orders, imprisonment
8. Do convictions always have to be recorded? No PSA Act
9. Is there a timeframe relevant for an appeal? 1 calendar month
10. When does someone have a right to appeal? question of law
11. and when does someone have to request leave to appeal? Question of fact & law
(1) Study Module 6 – Sexual Offences

(2) Study Module 9 - Insanity and Intoxication

(3) Study Module 7 - Property Offences 

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Multiple choice

(1) Study Module 11-Overview of the trial process

(2) Study Module 12-Sentencing and appeal

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