Principles of Criminal Law – Notes

Week 1:

- Criminal Law is divided into substantive and procedural aspects.

o Substantive criminal law identifies and defines criminal offences
o Procedural criminal law concerns the law governing the investigation, prosecution
and punishment of criminal offences.
- Sources of Criminal Law in Victoria:
o Criminal law in Victoria is derived from both, statutes and common law.
o Most criminal offences are defined by statues and not common law, with a few
notable exceptions such as murder and common assault.
o Most statutory offences in Victoria are coded in the Crimes Act 1958 (Vic), with
other notable acts including Summary Offences Act 1966 (Vic), Drugs, Poisons and
Controlled Substances Act 1991 (Vic), Road Safety Act 1986 (Vic).
- Federal Law Jurisdiction
o The Commonwealth Criminal Code is a compilation of all of it’s federal acts
collected into on statute.
- Elements of Criminal Offences
o Criminal offences are made up of elements and these elements make up the legal
definition of an offence. The fulfillment of all of these offences by an individual
means that an offence has occurred
o The prosecution has to convince the jury beyond reasonable doubt that the accused
has fulfilled each element of an offence, thereby allowing the jury to find the
defendant guilty.
- Actus rea refers to physical elements whilst Mens Rea refers to fault elements
o Physical Elements (Actus Rea)
 The physical elements refer to the external features of an offence. The three
types of physical elements include: conduct; result; and circumstances.
 Conduct – this refers to what the offender did, including omission if
applicable
 Result – this refers to the result or consequences of the offenders’
actions
 Circumstances – this refers to certain features of the situation in
which the offender acted
 These are all ‘physical’ in the sense of referring to the physical facts outside
the accused persons mind. However, it can also include the state of mind of
people other than the offender.
 A key principle is that every criminal offence will have some form of the
conduct element. The result and circumstances elements can also occur
individually or as a combination but as a general rule, the conduct element is
always present.
o Fault Elements (Mens Rea – Mental State)
  These elements usually concern some internal feature of the offender (why
we blame the offender for their conduct).
 Fault elements can be subjective or objective.
 Subjective fault elements are a form of mental state that usually
accompanies the conduct, usually one of: intention; knowledge; or
recklessness.
 E.g. Intention – the offender intended to do what they did
 E.g. Knowledge – the offender knew their actions were dangerous
 E.g. Recklessness – knowledge that a particular result would
probably come about
 An objective fault element is where the person is at fault because they failed
to act according to a standard of behaviour rather than because of the state
of their mind (negligence)
- Defences
o There are two types of defences in terms of criminal law: ‘denial’ or ‘affirmative’
 Denial Defence – this refers to when the accused argues that one or more
elements of the offence cannot be proved beyond reasonable doubt. This
can be done by either providing witnesses and evidence of their own or
undermining the strength of the prosecution’s case (i.e the witness was
drunk at the time and therefore not reliable)
 Affirmative Defence – this defence occurs when the accused accepts that all
the elements of the offence have been met, but there is some further fact
which means they should be found ‘not guilty’. Examples of this defence
include self-defence, sudden or extraordinary emergency, and duress.
- Exceptions
o An exception is a restriction on the definition of a criminal offence. This means that
an individual doesn’t actually commit an offence if they fall under the exception rule.
An exception is not an excuse for you to commit the act because your actions are
not criminal in the first place.
- What is strict and absolute liability?
o For offences that consist of only physical elements and thereby, no fault elements,
they will be classified as an offence of strict liability or absolute liability. The
difference between the two is that with strict liability offences, the defence of
honest and reasonable mistake of fact is available whereas this defence is not
available for absolute liability offences.
- Defence of honest and reasonable mistake of fact:
o This defence means that the accused will not be guilty of a criminal act whilst
honestly and reasonably – but mistakenly – believing that something which
would’ve made their actions innocent was true.
- The burden of proof
o The burden of proof is on the prosecution to convince the jury beyond reasonable
doubt that the accused is indeed culpable for the crime they are on trial for.
- The evidential burden: is there sufficient evidence to raise the issue?
o Due to the expensive and time-consuming nature of a trial before a jury, a judge first
has to determine if the prosecution has sufficient evidence in the first place to allow
the possibility of the accused to be indicted upon trial.
  The final check before the issue goes to the jury – as stated earlier, the
prosecution has to first convince the judge that they have sufficient
evidence to achieve an indictment on trial before the matter is put before a
jury.
 The evidential burden of the prosecution – evidential burden refers to the
burden of the prosecution to convince a judge to take the matter to trial.
Thus, the convincing of the judge to allow a trial before a jury is known as
the evidential burden.
 When does the accused have the evidential burden? – when an accused is
attempting to raise an affirmative defence, they have the evidential burden
to convince the judge to allow the issue to be settled by a jury. Therefore,
the accused bears the evidential burden in relation to affirmative defences.
 Does the accused ever bear the legal burden? – this occurs in relation to
certain defences being raised by the accused. For example, the defence of
mental impairment requires the accused to bear the evidential as well as the
legal/persuasive(B.O.P) burden.
- Beyond reasonable doubt
o The Jury Directions Act 2015 allows the trial judge to advice the jury as to the
meaning of ‘beyond reasonable doubt’.
- On the balance of probabilities
o When the accused has the legal/persuasive burden, the standard of proof is lowered
to balance of probabilities. This means that the accused only has to prove that more
likely than not that the matter is true.
- Summary and Indictable offences
o Indictable offences – these offences are tried before the jury in the Supreme and
County courts and ‘tried on indictment’. Indictment refers to the document
highlighting the alleged crimes. All common law offences are indictable and also the
offences in the Crimes Act 1958 (Vic) unless otherwise stated.
o Summary offences – these offences are heard without a jury with the magistrate
sitting alone and are simply called ‘hearings’, with the offences ‘heard summarily’.
Indictable offences can be heard summarily if the accused and court agree.
o Indictable offences are much more serious in nature than summary offences and
therefore warrant higher penalties in relation to summary offences.

Week 2:

- The varieties of assault

o ‘Common assault’ is a common law indictable offence provided for in s.320 Crimes
Act 1958. It is also a statutory summary offence, found in s.23, Summary Offences
Act 1966. It is one of the most common forms of assault.
- Section 23
o S.23 states the following – ‘Any person who unlawfully assaults or beats another
person shall be guilty of an offence.’
- Common Law definition of ‘Common Assault’
 o The definition of ‘common assault’ is the same in common law as well as summary
offences. S.23 simply allows common assault to be tried summarily.
o The common law offence comes in two kinds: application of force and the non-
application of force but creation of apprehension of force.

- Assault involving the application of force

o The elements for this version of the offence are:
 The accused applied force to the complainant’s body, direct or indirect
 The accused either intended to apply force, or knew that force would
probably be applied to the complainant’s body.
- Assault causing apprehension of application of force
o The elements for this version of the offence are:
 Accused engaged in conduct that caused the complainant to apprehend
imminent application of force to his/her person
 The accused intended to cause such apprehension or knew that their
conduct would probably cause apprehension
- Causing injury offences
o Common assault, in either version, does not include as an element the causation of
injury. There are older common law offences in Victoria that addressed the issue.
Statutory offences addressing the causation of injury include:
 S.16 – Causing injury intentionally
 S.17 – Causing injury recklessly
 S.18 – Causing injury recklessly or intentionally
 S.24 – Negligently causing serious injury
o There assaults causing injury are form of ‘aggravated assault’.
o Depending on the combination of type of result offence (injury or serious injury) and
type of fault element (intention, recklessness and negligence), various offences
could possibly be applicable.
- Injury
o ‘Injury’ is defined broadly in s.15 to cover physical injury as well as harm to mental
health, whether temporary or permanent.
- Serious Injury
o Serious injury covers injuries that endanger life or are substantial and protracted, as
defined in s.15.
- Causation
o Legal causation is concerned with fixing responsibility for a crime – who is to blame
for the result?
 Common sense starting point
 Causation in of itself is a fairly simple and straightforward process,
with judges themselves instructing juries to apply a common-sense
approach.
 For an accused individual’s conduct to have caused a result, it must
have ‘contributed significantly’ to the result or been a ‘substantial
and operating cause’ of the result.
 The ‘but for’ test is not enough to fulfil the requisite conditions.
More is needed that being one of a number of causes.
 The act also does not have to be the only cause, with other factors
also applicable
  The act also does not have to be the immediate cause and can be a
series of steps.
 Complicating factors
 Individuals can argue in defence that their actions did not influence
the end result at all, or state that their actions were not significant
enough to cause the end result. This is known as ‘diluting the stream
of causation’.
 In such circumstances, there are three main complicating factors:
o ‘Something else intervened after my act’ – meaning another
individual or object caused the eventual result and that the
accused’s actions were not the causing action.
o ‘Someone else should have done something to help’ – this
implies that the accused’s action was rectifiable should the
victim or another individual stepped in.
o ‘The deceased caused their own injury’ – the natural
question to consider is if the victims actions were the
‘natural consequence’ of the accused’s conduct?
- Fault Elements
o Intention
 The intention to be proved in s.16 and s.18 offences is an intention as to the
result of the conduct and not merely the conduct itself (someone may
intend to reverse out of a driveway but may not intend to hit the child
standing in the driveway).
 For intention to cause serious injury, the intention must match the nature of
the injury in regard to seriousness but not necessarily the exact injury
suffered.
o Recklessness
 In a legal context, ‘recklessness’ refers to knowledge or awareness; i.e. the
accused knew that the serious injury was probably going to happen
o Negligence
 Negligence in a criminal context is an ‘objective’ fault element as it does not
depend on the state of mind of the offender.
 Negligence refers failing to act in a way that is expected from a reasonable
individual in society.

Week 3:

- Threat
o A threat is an expression or communication of an intention by the accused to engage
in harmful conduct causing death or serious injury.
o Threats to kill are outlined in s.20 whilst threats to inflict serious injury are outlined
in s. 21.
o Threats are conduct-based crimes rather than results, meaning there is no necessity
to prove harm suffered by victims.
- Threatening Conduct
o There is no fixed formula to determine threat and therefore, is very context-
dependent.
 o Because threat is a form of communication, it needs to be addressed to or directed
at a person. However, the person being threatened does not have to be in the
presence of the individual doing the threatening. I.e. A can make a threat to B that
he intends to kill C, even though C is not in the room at the time.
o Threats can also be conditional i.e. “if you pick up that spoon, I’ll kick you”.
o Even-though there is no need to prove the recipient believed or feared the threat,
the reasonable person test needs to be applied in the sense that; would a
reasonable person take the threat seriously? Therefore, there must be something
about the threat which is capable of being taken seriously as a statement to kill or
inflict serious injury.
o As Higgins J points out in R v Leece, “If it conveys a merely hypothetical proposal
that will not suffice, but a condition threat will suffice as a ‘threat’.”
- Fault Elements
o The two fault elements for threat offences include intention and recklessness.
o Intention
 The offender, in making the threat, must intend that their communicative
act will give rise in their audience to a fear that a killing or infliction of
serious injury is a plausible scenario.
 It is possible for a person to make a genuine threat they have no intention of
carrying out, as long as they intend to make the recipient believe that they
intend to kill or seriously injure them.
o Recklessness
 In this context, recklessness refers to the offender being aware that when
making the threat, it is likely that the other person would fear the threat
would be carried out.
- Lawful Excuse
o The two lawful excuses to a threat are self-defence and protection of property. This
does not mean it is lawful to kill an individual to protect your property, but simply an
excuse for threatening to kill someone.
- Stalking
o A person stalks another if they (i) engage in a course of conduct which includes
certain prohibited types of acts and (ii) do so with intent to cause physical or mental
harm, or being reckless as to such harm, or such that the accused ought to have
understood the conduct would be likely to cause such harm and it did so.
o Section 21A of the Crimes Act 1958 (Vic) was inserted in 1994, with subsection (1)
prohibiting stalking and subsection (2) defining stalking.
- Physical Elements of Stalking
o The prohibited types of acts
 s.21A(2) contains a list of the types of prohibited conduct. These include:
following the victim; phoning, emailing, texting, making threats, entering or
loitering in near the victims’ workplace or home and so on.
 s.21A(2)(g) contains a catch-all provision:
acting in any other way that could reasonably be expected—
(i) to cause physical or mental harm to the victim, including self-
harm;
(ii) to arouse apprehension or fear in the victim for his or her own
safety or that of any other person
 The catch-all provision refers to the expected results of the conduct whereas
the preceding list describes the conduct itself.
o Course of Conduct
  Apart from proving the act itself, the prosecution must also prove that the
accused engaged in a course of conduct that included the prohibited acts. As
there is no statutory provision regarding the matter, the case of Berlyn v
Brouskos provides us with an outline.
 The case states that the acts must have either been committed on
more than one occasion; or be protracted in nature and the acts
must constitute a pattern of conduct evidencing a continuity of
purpose

- The fault elements of stalking

o Intention as to conduct
 The acts must be intentional and not accidental or involuntary
o Intention as to result
 More significant is the intention as to result (s 21A(2)): the offender engages
in the course of conduct, ‘with the intention: of causing physical or mental
harm to the victim, including self-harm, or of arousing apprehension or fear
in the victim for his or her own safety or that of any other person’.
 Subsection (3) provides other situations where intention can be determined,
such as forms of recklessness or an objective fault element.
o Recklessness
 This element requires the offender to know that their engagement in such
conduct would cause such harm or arouse apprehension or fear (s.21A(3)(a))
 In situations where the stalker is covert, the apprehension of fear cannot
exist in a victim as they are not aware of even being a victim.
 The magistrate in VPOL v JV held the following in relation to the
matter:
o Section 21A (3)(a) requires knowledge on [the accused’s] part that
his conduct was “likely to cause harm”. I accept as correct, the
submission made by the accused that s 21A (3)(a) can not be
expanded to apply to situations where a person’s conduct “would
be likely to cause harm” if discovered by the victims. The intention
to do harm is more likely to be inferred in cases where an accused
covertly films victims as here, but distributes them via the internet
or other means as in such situations the intention to do harm is
more likely.
 To conclude, if the victim is unaware of what the accused is doing,
there can be no assault, as seen in Pemble v R.
 As such, this legislation is more in relation to the results of engaging
in stalking rather than the conduct itself.
o ‘Ought to have understood’
 This is an objective fault element (not dependent on what was on the mind
of the offender).
 This element, stated in s21A (3) (b), considers if ‘the offender in all the
particular circumstances ought to have understood that engaging in a
course of conduct of such kind would likely to cause such a harm or
apprehension of harm and that it actually did have that result.
o Objective fault element adds a new physical element
  As stated in the element above, the phrase ‘actually did have that result’
creates a physical element to crime, meaning the result of harm or
apprehension of fear must occur through the stalking.
- Stalking and Bullying
o Amendments made in 2011 essentially classified bullying as a form of stalking, with
the definition of mental harm in s.21 A (8) being amended to include psychological
harm and suicidal thoughts.
- Exceptions and Defences to Stalking
o s.21 A (4) provides that stalking does not apply to an individual ‘performing official
duties’, i.e. enforcing criminal law, administering legislation, etc.
o s.21 (4A) provides another defence where if a defendant can prove their conduct
was without malice in the course of a lawful business, trade, or profession.

- Endangerment
o This offence refers to actions that endangers another’s life or places them in a place
of serious injury.
- Endangerment as a harmless crime
 In regard to endangerment, the crime is not that the harm has occurred, but
rather that a risk of harm was created. In situations where the risk itself is
enough, creating it becomes a crime.
- Conduct endangering life
o Crimes Act 1958 s.22 provides: ‘A person who, without lawful excuse, recklessly
engages in conduct that places or may place another person in danger of death is
guilty of an indictable offence.’
o The three main elements of this offence are:
o Voluntary Conduct
 The accused must have engaged in some form of voluntary conduct
o The conduct places or may place another person in danger of death
 The reasonable person test is applied in this scenario where it is determined
whether a conduct could reasonably endanger another individuals’ life.
o Recklessness
 The accused knew that his or her conduct would probably create an
appreciable risk of death. Note: it is not knowledge that death would
probably result. It is knowledge that an appreciable risk of death would
probably result.
- Conduct endangering persons
o Section 23 provides ‘A person who, without lawful excuse, recklessly engages in
conduct that places or may place another person in danger of serious injury is guilty
of an indictable offence’. This is essentially identical to s 22 but the risk is of serious
injury rather than of death.
o See section 15 for a definition of ‘serious injury’:

 serious injury means—

(a) an injury (including the cumulative effect of more than one injury) that—
(i) endangers life; or
(ii) is substantial and protracted; or
(b) the destruction, other than in the course of a medical procedure, of the foetus of
a pregnant woman, whether or not the woman suffers any other harm;