5CHAPTER Criminal law

UNDERSTANDINGS

By the end of this part, you should be able to explain: • what is ‘criminal law’ • why criminal law exists • what a crime is • where the criminal law is found.

What is criminal law? In simple terms, crime can be defi ned as a wrong against society. Society has developed a system of rules that it has agreed should be followed, so that society can work properly. These rules generally refl ect community attitudes

omissions things a person did that particular actions or failures to act (omissions) are wrong, and that if not do but should have done someone does those actions or is responsible for these failures, they should be punished. Together these rules are known as the criminal law. Note that from now on reference to ‘acts’ includes failure to act. It is poss- ible for a person to be charged with a criminal offence because they did not do something. For example, a parent can be charged with an offence if they neglect their child. The body of rules that is known as the criminal law sets out: (a) which actions are considered by society to be criminal (b) whether there are any circumstances in which such actions might be excused (c) which actions are not considered by society to be criminal (d) the consequences if a person commits a crime. One important reason for having criminal law is that it makes people in society feel safe. Criminal behaviour threatens society. If a member of society could kill other people or steal their belongings, and not be punished, citizens would be living in fear. This would not create a good society. By having rules that punish actions that society thinks are ‘wrong’, society is made safer, and people are made to feel more comfortable. Another important reason for having criminal law is morality. We saw in Section A that laws refl ect the values of society, including social values, moral values and economic values. Moral values have a great infl uence on the criminal law, because many actions that the law says are criminal are also actions that many people in society would consider to be immoral.

CHAPTER 5 Criminal law 141 HOT SPOT

What would be the consequences for society if the law was based on morality that most of society did not agree with?

One problem with basing law on a particular view of morality is that each individual person may have a different view of morality. What one person might think is immoral and therefore ‘wrong’ behaviour, another might think is entirely moral. For example, one person might consider that it is very dis- honest and ‘wrong’ behaviour to catch a train without having bought a ticket. Another person might think that this is quite acceptable. Further, there are many different cultures in Australian society, with different views of what is right and wrong. These factors can make it diffi cult to rely solely on society’s morality as a basis for making laws. Think about what you would do if you knew you could steal another per- son’s property and not get caught or punished. Would you do it? Be honest!

ACTIVITY 2 e (Individually, then whole class)

This activity is designed to show that different people have different ideas about what is ‘moral’ and what is ‘immoral’. What would you do in the following cases? What factors do you think would influence your behaviour? Make a note of your first reaction, and what you decide as a class. 1. Extra change is given to you by a shop assistant. 2. As in question 1, but you know the assistant will have to make up the difference out of his or her wages if the register does not contain the correct amount at the end of the day. 3. As in question 2, but you knew the assistant. 4. As in question 2, but you disliked the assistant. 5. You walk out of a coffee shop without paying your bill, because staff are in the kitchen. 6. More money is given to you by the automatic teller machine than you have withdrawn from your account.

What is crime? An action may be defi ned as a crime for one of three main reasons: (a) society thinks it is morally wrong (b) it interferes with the rights of another person (c) society could not function properly unless it was considered to be wrong, and people who did it were punished. An action can be a crime for a combination of these reasons. An example of an action defi ned as a crime for the fi rst reason might be murder. Almost everyone would consider that in most (or all) cases, killing another person is morally wrong.

142 SECTION B Crime and society An example of an action defined as a crime for the second reason might be stealing. If I steal another person’s car, I interfere with that person’s right to use it. An example of an action defined as a crime for the third reason might be driving through a red light. If citizens could ignore traffic signals if they wished, and not be punished for it, travelling on roads would be extremely dangerous and society would not be able to function properly. Although most of the time most people agree that certain actions should or should not be crimes, for one or more of the above reasons sometimes it can be more difficult to decide. Examples of issues where there is debate are abortion, euthanasia, homosexual behaviour, suicide, drug use, prostitution, pornography, and gambling.

ACTIVITY 3 k c (In pairs)

Discuss whether any or all of the activities below should be classified as criminal. Determine why society has classified them as crimes by referring to the three reasons presented above. EXAMPLE An accountant steals money from clients, to pay for expensive holidays and luxury cars. ANSWER This should be a crime for reason (b): the accountant is interfering with the property rights of others (the clients). 1. Paying a bill with a cheque that ‘bounces’, that is, you know you do not have enough money in your bank account to pay the value of the cheque. 2. Driving while talking on your mobile phone 3. Speeding 4. Holding up a petrol station 5. Drink driving without a driver’s licence 6. Accessing pornography on the internet 7. Creating a terrorist hoax 8. Working as a prostitute 9. Physically attacking a person 10. Persistently following and disturbing a person 11. Illegally downloading music from the internet 12. Writing graffiti on public property

ACTIVITY 4 i e (Individually, then in small groups)

Place the actions listed in activity 3 above in order from the least serious to the most serious. What factors have you considered in ranking the offences? Compare your list with that of other group members.

You can see that there can be disagreement between members of society about whether certain actions should be called crimes or not. Why do you think this is? Even parents, who you would expect to be responsible and law- abiding citizens, can disagree with the criminal law.

CHAPTER 5 Criminal law 143 Parents cheer for hoons on highways

by Greg Stolz, Gold Coast Bureau chief

PARENTS of hoons are forming roadside cheer ‘The message has gone out loud and clear that if squads to encourage their children to fl out the law you come into Queensland from NSW or any other in a practice attacked yesterday by Queensland state and you want to play up, you run the risk, Police Minister Tony McGrady. too, of having your car impounded,’ Mr McGrady Some parents were setting up chairs by the road- said. side to watch as their children took over roads with He said the latest seizures also sent a message rolling blockades, Mr McGrady said yesterday. to hoons ‘who think they’re going to take over the He was speaking after police seized 16 cars in roads of Queensland’. southeast Queensland at the weekend under the ‘If you want to play your games do so, but just state’s new anti-hooning legislation. remember that we are having blitzes in various parts The seizures brought to more than 400 the of the state and, in particular down here on the Gold number of cars impounded by police since the Coast where we’re doing this every weekend and hooning laws came into force last October. during the week as well,’ Mr McGrady said. The Gold Coast has proved to be the state’s ‘These people are a menace and a danger on our hooning hot-spot, with 140 cars confi scated on the streets. tourist strip. ‘Hoons will soon learn that they can’t keep Most of the cars seized in Queensland over the treating the roadways as raceways or their car will past seven months have been taken off the road for be gone for good.’ 48 hours, but three have been confi scated for three Mr McGrady said he and Police Commissioner months after their owners were caught hooning a Bob Atkinson had recently witnessed a late-night second time. gathering of hoons where parents set up chairs on Under the anti-hooning laws, offenders have the roadside to watch their children forming rolling their cars confi scated for 48 hours for a fi rst offence, blockades. three months for a second offence and permanently ‘It’s quite amazing and sad,’ he said. for a third offence. Murwillumbah teenager Michael Newell, whose Mr McGrady yesterday toured a Gold Coast Commodore was impounded for street racing at towing yard with senior police to show off the latest Palm Beach on Saturday night, said he accepted he haul of impounded vehicles. had broken the law. They included three vehicles from NSW and ‘It’s our fault,’ said Mr Newell, 18. showed Queensland police would not tolerate ‘I’ve learnt my lesson and won’t be doing it again. hoons coming across the border, Mr McGrady said. ‘It’s pretty bad not having a car for two days.’

FIGURE 5.2 Source: The Courier-Mail, 10 June 2003.

ACTIVITY 5 k (Individually)

Read the news item in figure 5.2 then answer the 2. When did the laws come into force? following questions. 3. What are the penalties imposed on offenders? 1. Although this item does not clearly describe the 4. Research the Queensland Government website ‘anti-hooning’ laws, what do you think ‘hooning’ for more information on these laws. refers to?

As you know, the Government is responsible for making and reviewing laws, including criminal law. It must decide whether certain actions are crimes, or whether they should be made crimes. It also must decide whether

144 SECTION B Crime and society certain actions should not be crimes. Before deciding this, the Government will hear what different groups in society have to say about the matter. We saw in Section A that these groups can be called stakeholders. They are people whose interests are at stake when the issue is being considered. Stakeholders have a particular view about the issue. Often the views of stakeholders will be different. The Government must listen to the views of all groups before trying to balance all of these interests and come up with a workable law. In the context of criminal law, the Govern- ment must decide, after listening to the various groups, whether certain actions are going to be defined as criminal or not, and what the punishment is going to be if the person is found guilty of the crime. For example, on the issue of whether prostitution should be a crime, some stakeholder groups would be: • sex workers • those in society who use the services of prostitutes • those who live in areas where prostitution occurs • church groups. Debate about criminality can also apply to drug possession. In 2001, the National Campaign against Drug Abuse Household Survey was conducted. This survey asked questions about illicit drug use.

TABLE 5.1 Support for personal use of marijuana/cannabis being made legal: proportion of the population aged 14 years and over, by age and sex, Australia, 2001

Level of support for marijuana/cannabis being made legal

Support or Oppose or Neither Don’t know strongly strongly support nor enough to Age group support oppose oppose say

(per cent) Males 14–19 28.4 43.1 22.9 5.6 20–29 45.0 34.5 17.1 3.4 30–39 38.4 38.3 19.6 3.7 40+ 21.9 56.3 16.0 5.8 All ages 29.7 47.6 17.6 5.0

Females 14–19 26.4 47.7 19.8 6.1 20–29 36.4 40.9 19.7 3.0 30–39 31.6 44.0 19.1 5.3 40+ 19.1 58.2 14.2 8.5 All ages 25.2 51.5 16.6 6.7

Persons 14–19 27.4 45.3 21.4 5.8 20–29 40.7 37.7 18.4 3.2 30–39 34.9 41.2 19.3 4.5 40+ 20.5 57.3 15.0 7.2 All ages 27.4 49.6 17.1 5.9

Source: National Drug Strategy Household Survey 2001.

CHAPTER 5 Criminal law 145 ACTIVITY 6 k e (Individually or in pairs)

Instructions: Study table 5.1 then answer the 4. What percentage of respondents neither support following questions in clear sentences. nor oppose legalisation? 1. Identify whether the majority of respondents to 5. Of the females who oppose or strongly oppose the survey support or oppose the legalisation of legalisation, which age group has the highest marijuana/cannabis for personal use. percentage? 2. What percentage of 14–19 year old males oppose 6. Explain how the Government should use the or strongly oppose its legalisation? findings from the survey. 3. Of the males who support or strongly support 7. Explain the differing responses to the survey legalisation, which age group has the highest questions by males and females, and from the percentage? different age groupings.

The issue of marijuana use is also a particularly controversial one in Queensland. Some groups in society strongly believe that marijuana pos- session should not be a criminal offence. They argue that the use of tobacco and alcohol products has had a negative impact on society, yet these drugs are legal. Alcohol abuse is widely considered to be directly responsible for much of the physical violence that occurs in our society, and alcohol and tobacco use are responsible for many health problems in society. In some States in Australia, possession of a small amount of some drugs has been ‘decriminalised’. This means that, unlike the situation in Queensland where drug use is ‘criminalised’, it is not a criminal offence in those States decriminalise when to have a small amount of drugs. A small fine may be imposed, however. something that was a criminal This shows the difference between minor drug use being decriminalised offence is no longer a criminal offence and being ‘legalised’. If minor drug use was fully legalised, no fine would be imposed as no law has been broken.

ACTIVITY 7 k i c (In groups of 3–4)

Conduct a survey to find out whether teenagers that attempt to work out the reasons for your (14–19 years) are in favour of, or opposed to, the respondents’ views. Refer to the skills chapter legalisation of marijuana/cannabis for personal for guidance on writing questions and analysing use. Compare your results to the survey statistics responses. in table 5.1. In your groups, develop questions

There is strong debate about many other issues in our society — whether abortion, euthanasia, suicide and prostitution should be legal or not. On 10 February 2004, the Australian Capital Territory Government made it legal for same sex couples to adopt children when the Government removed discrimi- nation against gay, lesbian, bisexual, transgender and intersex people in many Territory laws. In early 2007, the adoption of a child by a Western Australian gay couple, believed to be the first such adoption in Australia, occurred fol- lowing changes to that state’s adoption law in 2002. Obviously, there are many different stakeholders with strongly held opin- ions on this issue and there would be many people in the community against this change to the law as well as those who welcome it.

146 SECTION B Crime and society ACTIVITY 8 k i c (In small groups, then pairs or threes)

Select one of the above issues. Working in small you survey may not feel comfortable with groups, answer the following questions in relation expressing personal viewpoints and/or may to that issue. not feel confident in their knowledge of the 1. Identify stakeholders and their likely views on the issue.) issue. If the person thinks the issue should be a crime, ask why he or she feels that way. (For 2. Develop a series of questions to survey the example, should the issue be a crime because attitudes of members of the class, your friends, or it is morally wrong, because it interferes with members of another class to the issue. The aim the rights of others or because it affects how of the survey is to determine whether the issue society functions?) should be a crime or not. Work in pairs or threes 3. to carry out your survey. Report your findings to the class. Explain the purpose of your survey to those 4. Does the current law on the topic reflect these you are asking. (Be mindful that the persons community views?

As we have seen, law reflects society. Different societies have different con- cepts of what a crime is, and how serious it is. For example, some Muslim countries view stealing as extremely serious, so the punishment is to chop off the offender’s hand. Some Asian countries view drug trafficking as extremely serious and have the death penalty for those convicted of that offence. Con- victed Australian drug trafficker Van Nguyen was executed in December 2005 after being sentenced to death for smuggling nearly 400 grams of heroin into Singapore in 2002. The Singapore Government turned down repeated pleas from Australians, including the Prime Minister, John Howard, for the punish- ment to be downgraded to life imprisonment as Van Nguyen had admitted his guilt and had co-operated with Singapore police from the time of his arrest. The case caused public outrage in Australia against the use of the death penalty. Sources of criminal law Criminal law is mainly State law. Through the Constitution, the Commonwealth Government does have some power to make and enforce criminal laws but these relate only to crime that affects the whole country, for example, laws that prohibit the importing of illegal drugs into Australia, or internet crime. The main source of criminal law in Queensland is the Criminal Code Act 1899 (Qld). (Western Australia is the other state whose main source of criminal law is a criminal code.) This is an Act of Parliament passed by the Queensland Government. It contains over 700 sections. The Act has been amended many times since it was first passed in 1899, but its basic content and structure has not changed. The Criminal Code sets out definitions of offences and describes certain aspects of offences, called ‘elements’, that must be established by the pros- ecution to prove the guilt of the accused person. The Code also contains defences that the accused person may use to excuse or defend their actions and the punishment if the offence is proved. Several other States in Australia do not have a Criminal Code. In those States, the criminal law is not found in an Act of Parliament, but rather in case

CHAPTER 5 Criminal law 147 reports. In other words, some States rely on the common law criminal law (New South Wales, Victoria, South Australia, Tasmania). Although Queensland and Western Australia are different in having an Act of Parliament that contains the criminal law, in reality there is a large amount of overlap between what is contained in the Criminal Codes in Queensland and Western Australia, and what is contained in the common law criminal law that applies in other States. It is possible, though, that an act that is legal in one State may be illegal in another State. An example of this is possession of a small amount of marijuana. In practice, if a Queensland court is trying to work out the meaning of a par- ticular section, it might refer to precedent cases decided on the common law to interpret it. (Refer to Section A, page 00, where we discussed the diffi culties that judges have in interpreting statute law and the strategies they use to help them understand the meaning of the law.) Judges can use these common law principles to interpret what a section of the Queensland code means. It also means that a court in a common law State, such as New South Wales, might refer to the Queensland law on an issue if there is no common law decision, that is, no available New South Wales precedent, or there is doubt about what the common law principle means.

HOT SPOT

The idea of a uniform criminal code is sometimes raised. This code would apply to the whole country and would replace the different criminal law that currently exists in States and Territories. What do you consider would be the benefits of a uniform national criminal code?

There is a Criminal Code 1995 (Cth) that is national in reach and deals with some kinds of offences, in particular terrorism offences. These were introduced as amendments to the 1995 Act following the events of September 11 2001. We will discuss some details of this legislation shortly. In the future, criminal law may be regulated to a greater extent at the federal rather than state level. The following news item reports on the signifi cant changes made to the Queensland Criminal Code and the sentencing laws in 1996. At that time, Premier Beattie was Leader of the Opposition.

ACTIVITY 9 k i e (Individually or in pairs)

Carefully read the news item below and answer the following questions in clear sentences. 1. Explain the reasons given for changes to the Criminal Code and the Penalties and Sentences Act 1992 (Qld). 2. What is the Queensland Government’s new approach to crime? 3. Describe at least two changes made from the former Criminal Code. 4. Identify the stakeholders likely to benefi t from the Government’s changes. 5. Describe the change to the sentencing of serious violent offenders. 6. What changes in society caused these changes in the law?

148 SECTION B Crime and society State gets tough with criminals

by Jacob Greber

QUEENSLAND’s new Criminal Code and a tougher Opposition Leader Peter Beattie, who last Penalties and Sentences Act were passed through night welcomed the tougher sentences, said the State Parliament last night. Government should also focus on the causes — The Attorney-General Denver Beanland said the including high youth unemployment. new Criminal Code made Queensland a safer place Labor claimed credit for a number of ‘posi- to live. tive outcomes’ in the code, chiefl y for women, the Changes from the former criminal code include elderly and non-English speaking people. the introduction of torture as a crime, new rights for The second part of the Government’s Law and parents to discipline their children, tougher pen- Order Bill — which will force serious violent alties for sex crimes, and the granting [of] greater offenders (sentenced to 10 or more years) to serve police powers. at least 80 per cent of their sentences — also was ‘The Criminal Code is now fairer than it has ever passed. been and the changes will make it easier for victims Multiple murderers serving life now have a to have their say, particularly women and children,’ non-parole period of at least 20 years, while the non- Mr Beanland said. parole for lifers will be increased from 13 to 15 years.

FIGURE 5.3 Source: The Courier-Mail, 27 March 1997, p. 9.

Although the Criminal Code contains most of the criminal law, some of it is found in other statutes, such as the Drugs Misuse Act 1986 (Qld) and the Transport Operations (Road Use Management) Act 1995 (Qld).

ACTIVITY 10 k

1. Explain why society has developed a body of rules known as the criminal law. 2. List the three reasons why an act or omission may be defi ned by law as a crime. 3. Explain why the criminal law is a State rather than a Commonwealth responsibility. 4. Name two Acts of Parliament where Queensland criminal law is to be found. 5. Explain how Queensland’s criminal law is different from that of other States.

IN BRIEF

1. Criminal law is necessary to make sure that society works properly. 2. An action can be defined as a crime for several reasons. 3. Sometimes there is controversy about whether an action should be considered to be a crime. 4. Criminal law is largely a State matter. 5. The main source of criminal law in Queensland is the Criminal Code.

CHAPTER 5 Criminal law 149 Offences Offences can be classifi ed into several categories, including: • offences against the person • offences against property • drug offences • driving offences • other offences. We will discuss each in turn. Each offence is made up of several elements. Remember, if the State Government charges a person with committing any offence, the Government must prove that the offence has been com- mitted, that is, that all the elements of the offence exist. In other words, the Government has the onus of proof. It must prove through the presentation of evidence, beyond a reasonable doubt, that each of the elements of the offence charged exists. If it cannot prove this, the accused person will be found not guilty. This is because there is a presumption that a person is innocent until proven guilty. Offences against the person These can be further classifi ed into: • unlawful killing • sexual offences • assault offences.

Unlawful killing UNDERSTANDINGS

By the end of this section, you should be able to explain: • what unlawful killing is • the difference between murder and manslaughter.

Section 293 of the Criminal Code defi nes an unlawful killing as when a person (the accused) causes the death of another (the victim) ‘directly’ or ‘indirectly’. A person causes the death of another ‘directly’ when the victim dies as a direct result of the person’s actions. A person causes the death of another ‘indirectly’ when the victim dies as a result of circumstances set up by the person’s actions. There are four important elements in the defi nition of unlawful killing: (a) killing must be unlawful (b) there is an obvious ‘cause and effect’ relationship between the actions of the accused and the death of the victim (c) the killing must be of another ‘person’ (d) the causing of death can be direct or indirect.

(a) killing must be unlawful Although most killing is unlawful, there are some situations where it is legal, for example, if a police offi cer kills an offender when there is no alternative.

150 SECTION B Crime and society (b) there is an obvious ‘cause and effect’ relationship between the actions of the accused and the death of the victim There must be a causal link between what the accused did and the victim’s death. In other words, the accused’s actions must have caused the death of the victim. If the person died from other causes, the accused is not guilty of unlawful killing. If the victim received medical treatment before dying, sometimes the accused will claim that death was caused by the medical treatment rather than the actions of the accused. However, this claim is rarely successful.

Kinash [1982] Qld R 648 FACTS: The accused violently assaulted the victim ISSUE: Was the accused guilty of manslaughter as with several blows to her head. She was taken to charged, or was the victim’s death caused by the hospital where she was found to have a bleeding actions of the doctors? and swollen brain. VERDICT AND REASONS: The court found that the Doctors decided she had no hope of recovery manslaughter charge was proven and that the and switched off a ventilator to which she was victim’s death was due to injuries caused by the attached. This occurred four days after the accused and not by the withdrawal of medical attack. Within half an hour she suffered a heart treatment. attack and died. The accused was charged with manslaughter. CASES

HOT SPOT

A recent case involved a spectator being trampled at a football match. He suffered brain damage, and his brain was filled with fluid. There was no hope of recovery. Doctors switched off his feeding supply, and he starved to death over a two-week period. (Airedale v Bland [1992] UKHL) (a) Could these doctors be charged with unlawful killing? (b) Could the persons responsible for trampling him be charged with unlawful killing? Justify your responses.

The amount of time that has elapsed from the time of the actions of the accused and the time of death of the victim may make it diffi cult to prove this causal link. The Criminal Code used to state that the causal link was broken if the victim did not die within a year and a day of suffering the inju- ries. However, with modern medicine allowing a person to be kept alive for long periods of time, and the existence of the HIV–AIDS virus, this rule was abolished.

HOT SPOT

Explain how the HIV–AIDS virus has been a factor in changing the ‘year and a day’ rule. Why might the rule have been introduced?

CHAPTER 5 Criminal law 151 ACTIVITY 11 i (Individually or in pairs)

Consider or discuss the following fact situation to determine whether Tony caused Wendy’s death (that is, could Tony be charged with unlawful killing). Wendy was stabbed by Tony after a heated argument. She was taken to hospital and told that if she did not have a blood transfusion, she would die. Wendy was a Jehovah’s Witness and refused to have the blood transfusion on religious grounds. She died the next day.

(c) the killing must be of another ‘person’ Only a ‘person’ can be said to have been unlawfully killed. This can raise interesting issues in relation to pregnancy and childbirth. Section 292 of the Criminal Code states that a baby becomes a person when it can survive outside of its mother’s body. This defi nition means that a person who performs an abortion or, as a preg- nant woman, allows an abortion to be conducted on herself, has not under the law committed an unlawful killing. Abortion is dealt with under separate specifi c sections of the Criminal Code. A woman can have a legal termination of pregnancy in Queensland for certain reasons. This defi nition of a ‘person’ has caused unfairness in the past. In 1996, a martial arts expert kicked his pregnant de facto wife in the stomach, destroying the foetus. He did this so he would not have to fi nancially support the child. At the time he could not be charged with unlawful killing. After this case, the woman and others in the community petitioned the Government to change the law. The Government created the new crime of killing an unborn child (s313).

HOT SPOT

A leading Brisbane doctor has estimated that 9 per cent of foetuses are exposed to violence while in the uterus, and there are a significant number of stillbirths and child deformities as a result. 1. Taking this information into account, do you think the law is adequately dealing with this issue? 2. Do you agree with the defi nition of ‘person’? Why or why not?

(d) the causing of death can be direct or indirect This element widens the defi nition of unlawful killing. Unlawful killing can amount to murder or manslaughter. The main differ- ence is that murder is committed if the accused intends to kill or do serious injury to another person. If this intention exists, and a person is killed, the accused is guilty of murder. If this intention does not exist, and a person is killed, the accused is guilty of manslaughter only. Murder is punished more severely than manslaughter. A person convicted of mandatory it must happen; the murder will be given a mandatory life sentence (this means the court has no court must do it choice in the matter). Some states have changed this so that the sentence is not mandatory for murder. The meaning of a ‘life sentence’ and other sentencing options will be discussed later in this section of study. A person convicted of

152 SECTION B Crime and society manslaughter will likely receive a lighter sentence than this. ‘Lighter’ means the person will not go to jail for as long, or will not go to jail at all.

MacDonald [1904] St R Qld 151 FACTS: The accused were a married couple. ISSUE: Were the parents guilty of murder? The victim was the 14 year old daughter of the VERDICT AND REASONS: Yes, they had failed to couple. The family lived on a grazing property at provide the necessities of life, and had indirectly Longreach. The daughter was the victim of vio- caused the death of their daughter. This is an lence and ill-treatment by them. example of failing to act being a criminal offence Her parents failed to give her proper clothing, (s285). she was starved and her parents failed to obtain medical advice when it was readily available. The girl was later found dead in a sack. She had two broken ribs and her bones were exposed. CASES

If the accused does not admit in court that he or she intended to kill or seriously injure the victim, the court will take into account other evidence. For example, murder will have been committed if the probable result of the actions of the accused is that the victim will die.

Willmott (No. 2) [1985] 2 Qd R 413 FACTS: The accused went to the house of his VERDICT AND REASONS: The court found that if sister-in-law and asked for sex. the accused knew that death or serious injury When she refused, the accused dragged her was a probable cause of his actions, he could be along the ground, punching her. convicted of murder. The accused was convicted To stop her screaming, he stuffed a T-shirt into of murder. her mouth before raping her. It is enough that a person intends to kill She died from suffocation and he was charged another person. So, if you intend to kill A but kill with murder. B instead, you can be charged with murdering B. The fact that you did not intend to kill B is not ISSUE: Did the accused intend to kill the victim? relevant. CASES

Sometimes a person can be charged with murder although they do not actually carry out the killing.

Pagett (1983) 76 Cr App R 279 FACTS: The accused kidnapped his 16 year old ex- ISSUE: Was the accused responsible for the death girlfriend who was six months pregnant with the of the hostage even though he did not pull the accused’s child. The accused was hiding out with trigger? the hostage in the block of apartments in which VERDICT AND REASONS: The accused was con- he lived. Police surrounded the building and the victed of killing the hostage. It was found that a accused constantly threatened to kill the hostage. reasonable person could have foreseen that the Police chased the accused inside the darkened hostage may be killed as a result of the accused’s block and shot at him. actions. Because the accused had positioned his hostage in front of him, his hostage was killed. CASES

CHAPTER 5 Criminal law 153 In R v McGrare [2002] QCA 173, a Brisbane doctor was convicted of mur- dering one of his patients. She had complained about his sexual misconduct just before she died. She was found with a very large dose of morphine in her bloodstream, more than seven times the usual medical dosage. Her house was unlocked and the dead woman was found neatly tucked in her bed.

HOT SPOT

Should the accused in the above cases have been convicted of murder? Justify your view.

FIGURE 5.4 Intention to kill?

ACTIVITY 12 i e (In pairs)

record of interview written Consider and discuss the following police record of interview, taken from the Cameron record of person’s interview with actual facts in the case of (1990) 47 A Crim R 397. Should Cameron police be charged with murder? Should Cameron be found guilty? Q. When you stabbed Marko in the chest with the knife, what were you intending to do to him? A. No, I don’t know. I wasn’t thinking anything. There were so many emotions. Q. When you stabbed Marko in the chest with the knife do you know what you were trying to do to him? A. I was fl ooding with emotions. It was only when I heard the fl uid in his body that I came back and something clicked in my head. Q. When you stabbed Marko in the chest and the back with the knife, were you trying to kill him? A. No, that never entered my mind. I was boiling. My heart was breaking. I was angry. I was sad. I felt love and hate. I have never felt that way before. It was a torrent. A rush of blood. Q. From the moment you saw the two of them in bed together, did you then want to kill Marko? A. It never even crossed my mind to kill him. If it came to it I would have gone FIGURE 5.5 out onto the front lawn with him. That is the only violence I had on my mind. It wasn’t until I heard the fl uid that I realised I had killed him.

Note also that a person, A, can be charged with murder if another person’s death, B, is caused because A has done something likely to endanger human life while pursuing an unlawful purpose.

154 SECTION B Crime and society For example, in R v Stuart and Finch [1974] Qd R 297, the accuseds deliber- ately started a fi re at the back of a Brisbane nightclub when the club was full of people. They did this to intimidate the nightclub owner to obtain money from him. Thirteen people died in the fi re. The court found that their deaths were a likely result of the accuseds’ plan. The accuseds were convicted of murder. As has been mentioned, an unlawful killing not done with the proper intent is manslaughter only.

River game led to death of student

Jasmin Lill

FIVE Japanese students had been playing a game of Under cross examination by the accused men’s throwing each other in the Brisbane River before a counsel Frank Lippett, Sgt Fenelon agreed Aizawa teenager drowned and the fi ve were charged with had told him the men were playing a game and manslaughter, a court heard yesterday. there was no malice involved. The body of Wei-Li Hsu was dragged from the ‘The results of all inquiries were indicative of river on November 29 last year after he was allegedly that,’ he said. thrown into the water the previous night during a Sgt Fenelon also had to stop his interview with student barbecue in Mowbray Park, East Brisbane. Hamajima because he became upset during the Five Japanese students have been charged with questioning. the manslaughter of Hsu, 18, including Aizawa ‘I would say his words and demeanour demon- Takaaki, 22, Jun Hamajima, 22, Tai Chi Maruta, 19, strated he was suffering emotionally as a result of Akira Ookawara, 23, and Hiroki Suzuki, 20. events on that night,’ he said. During a committal hearing in the Brisbane The court heard Maruta and Ookawara jumped Magistrates Court yesterday, Hsu’s friend Sen-Chieh into the water and tried to save Hsu who it was later Hsu said he saw two others thrown in the river found could not swim. before Hsu was, despite telling his friend he didn’t ‘It was believed to be the case that they did enter like the idea. the river to assist,’ Sgt Fenelon said. ‘I think it’s crazy,’ he said. ‘At fi rst the one person grabbed him, then a group came over.’ Ookawara told police he had never been told not Mr Hsu told the court he heard his friend say ‘no’, to swim in the river, and that he had seen other but added he would have stopped the game if he people thrown in the water at previous barbecues thought he was in danger. at the park. Senior investigator Detective Sergeant Chris Suzuki told police he had also been thrown into Fenelon said the accused had no previous criminal the river that night, and he joined the bid to rescue convictions and denied there was any evidence they Hsu. had any history of bullying. Under cross-examination, Sgt Richard Lacey was He said Aizawa also had been thrown into the asked if any of the accused treated the incident as a river on that night, but he was a poor swimmer who joke during their interviews. had panicked and began dog paddling. ‘No, certainly not,’ Sgt Lacey said.

FIGURE 5.6 Source: The Courier-Mail, 5 June 2003.

ACTIVITY 13 k i (Individually or in pairs)

Should the students have been charged with murder rather than manslaughter? Provide evidence from the news item in figure 5.6 to support your response.

CHAPTER 5 Criminal law 155 Some examples where a person has been charged with or convicted of man- slaughter are: (a) Adding meat preserver to a can of Coke (as a joke), expecting a vagrant to drink the Coke and spit it out. The vagrant instead drank the entire can. He was dead within three hours, the preserver reacting with his existing medical illnesses: Jackson and Hodgetts (1989) 44 A Crim R 320. (b) Voluntary lack of sleep leading to a driver falling asleep at the wheel. The car crashed into three men trying to fi x their broken down car at the side of the road in Townsville, killing them all: R v Scarth (1945) St R Qd 38. (c) A man stood by while his wife took their two children into the pool, drowning them and then herself: R v Russell [1933] VLR 59. (d) A doctor delivered a woman’s child, which was stillborn. The woman asked to be taken to a hospital, but this was not done for four days. Two days later the woman died: R v Bateman (1925) Cr App R 8. Occasionally, a charge of manslaughter can arise from a sporting event.

TITLE TO COME FACTS: A rugby union footballer, Alex Natera, 19, ARGUMENTS: The prosecution argued that Natera was charged with manslaughter after punching had struck Hahn with such force it had caused another player during a game. Hahn’s fatal injuries. Defence Council disputed The victim, Andrew Hahn, 18, died 24 hours this claim, asserting that Natera had hit Hahn later in hospital. with only moderate force and that Hahn’s death Natera was alleged to have struck Hahn in was caused by internal bleeding that occurred at back-play. the same time as the blow. ISSUE: The issue was whether the blow delivered VERDICT: Natera was eventually found not guilty by Natera had killed Hahn. of manslaughter. CASES

HOT SPOT

Refer to the important elements in the definition of unlawful killing. Which element was being argued in the Natera trial?

ACTIVITY 14 i (Individually or in pairs)

Read the following fact situations and determine whether the accused could be convicted of murder or manslaughter. Explain the reasons for your decision. EXAMPLE The brakes of a car fail suddenly and the driver cannot stop in time at a pedestrian crossing. A child is killed. ANSWER The driver could be convicted of manslaughter (although a defence may apply). 1. The accused is involved in a car accident that 4. The accused robs a service station. The attendant results in the death of a passenger in the other refuses to hand over the money, and the accused car. The accused was drunk. shoots the attendant dead. 2. The accused knowingly drives an unroadworthy 5. The accused robs a service station. The attendant vehicle. The driver loses control of the car and is terrorised and dies of a heart attack during the slams into a person walking on the footpath. robbery. 3. The accused, while speeding, crashes 6. A doctor tries to perform an abortion on a into a crowd on the footpath, killing a child pregnant woman. The doctor causes severe (unintentional). internal bleeding, and the woman dies.

156 SECTION B Crime and society ACTIVITY 15 k (Individually or in pairs)

1. Offences against the person can be divided into 6. Explain why a long period of time may make the three areas. List them. fi rst element diffi cult to prove. 2. Distinguish between ‘direct’ and ‘indirect’ killing. 7. Go to the Queensland Government legislation 3. Distinguish between lawful and unlawful killing. website, to the Queensland Criminal Code, s285. Write a paragraph of 50–100 words explaining 4. Provide an example of unlawful killing from the this section. text. 8. Distinguish manslaughter from murder. 5. Describe the three elements that must be proved in a charge of unlawful killing.

Leonard John Fraser was the fi rst convicted serial killer in Queensland. The news item ‘Serial killer convicted’ describes Fraser’s convictions, in the Bris- bane Supreme Court, for the murders of three Rockhampton women. He was later sentenced to three indefi nite jail terms and died in custody on 1 January 2007. Note that a description of indefi nite sentencing is presented later in this section of study.

ACTIVITY 16 k (Individually or in pairs)

Read the news item carefully and then answer the questions that follow in clear sentences.

Serial killer convicted

Tony Keim

Fraser psychiatric tests after verdict on Family members of all three women looked murders stunned or wept as each verdict was delivered. Prosecutor Paul Rutledge said the Crown would LEONARD John Fraser became Queensland’s fi rst seek an indefi nite sentence on all three counts and convicted serial killer yesterday when he was found would approach Queensland Attorney-General guilty of the brutal killings of three Rockhampton Rod Welford within the next week to seek his women. approval. A Brisbane Supreme Court jury deliberated for Justice Ambrose adjourned the matter until next more than a day before fi nding Fraser, 51, guilty Thursday for the Crown to make the application. of the murders of Beverley Doreen Leggo, 37, and Defence barrister Adrian Gundelach asked that Sylvia Maria Benedetti, 19, and the manslaughter sentencing be adjourned for six weeks to allow a of Julie Dawn Turner, 39, at Rockhampton between psychiatric report. December, 1998, and April, 1999. Fraser had originally also been on trial for the The guilty verdicts bring the tally of Fraser’s known victims to four. He was jailed for an indefi - murder of schoolgirl Natasha Ryan, 14, but the nite life term in late 2001 for the savage murder of charge was dropped when police found her in nine-year-old schoolgirl Keyra Steinhardt. Rockhampton. Fraser stood silent and red-faced as each of the In a turn of events unprecedented in Australian verdicts was read shortly after 6 p.m. He slumped legal history, Ms Ryan was called as Fraser’s only back into his seat with his hands behind his head as defence witness. the jury was led out of the court. (continued)

CHAPTER 5 Criminal law 157 The Crown said its case against Fraser was attempted rapes before he abducted and mur- overwhelming and that he had made detailed dered Keyra Steinhardt in 1999. admissions about his involvement while in custody • Prisoner-turned-police-informant Alan Quinn charged with the Steinhardt murder. persuaded Fraser over a two-year period to The jury was played tape-recorded admissions provide him with hand-drawn maps of his by Fraser to fellow inmate Alan Quinn detailing victims’ burial sites and intimate details of the the names and the graphic descriptions of how he killings. killed the women. • Fraser tried to throw police off his trail by writing The jury also heard evidence and saw videotape a press release in January 2001 under the name footage of Fraser leading detectives to remote bush- ‘Mr Squeaky’, blaming the brutal killings on this land areas where the skeletal remains of Ms Leggo, fi ctitious character. Ms Turner and Ms Benedetti were located. Fraser laughed over the graves of his victims but Following the guilty verdicts, The Courier-Mail cried at the burial site of his pet cattle dog Xena. He can reveal: was jovial as he swaggered down isolated bush tracks • Fraser had a lengthy criminal history spanning to show police where he had callously discarded the more than 30 years in NSW and Queensland, bodies of three women between Rockhampton and with convictions for a series of brutal rapes and Yeppoon.

FIGURE 5.7 Source: The Courier-Mail, 10 May 2003, p. 1.

1. What sentence was the Crown seeking now that in court only after a conviction and at the time Fraser had been convicted of the three murders? of sentencing. Why do you think an accused’s 2. What evidence was used to convict Fraser? criminal history would not be made available to the jury during a trial? 3. Details of an accused’s criminal history is generally not revealed to a jury and revealed

Unlawful killing*

Is there an unlawful killing contrary to the Criminal Code, e.g. Accused No • killing not lawful acquitted • causal connection between accused’s act and victim’s death (direct or indirect) • victim is a ‘person’?

Ye s

Accused Ye s Did accused intend to kill or do serious guilty injury to the victim or someone else? of murder

No

Accused Ye s Did the victim die because the accused guilty of acted dangerously while attempting to murder do an illegal act?

No

* NB: Defences may apply. Accused guilty of manslaughter FIGURE 5.8 Unlawful killing

158 SECTION B Crime and society IN BRIEF

1. Unlawful killing includes a broad range of fact situations and includes both murder and manslaughter. 2. The definition of unlawful killing includes elements that the prosecution must prove beyond a reasonable doubt. 3. Unlawful killing that is not intentional amounts to manslaughter. 4. The only penalty that can be imposed for murder is mandatory life imprisonment (or an indefinite sentence). The most severe penalty for manslaughter is life imprisonment (but the actual penalty is almost always less).

Sexual offences UNDERSTANDINGS

By the end of this section, you should be able to explain: • the legal definition of rape • how the definition has changed to reflect changing attitudes in society • how sexual offence cases show that sometimes the legal system is out of touch with community attitudes.

The most serious sexual offence is rape. Rape is defi ned in s347 of the Criminal Code as the act of a person who has sexual relations with another person without that person’s consent, or with that person’s consent if it is obtained by force, threats or intimidation. This defi nition was introduced into the Criminal Code in 1997. Prior to that time, rape was defi ned as a man having sexual intercourse with a woman without the woman’s consent. As you can see, the defi nition was re-written so as not to mention gender. HOT SPOT

(a) Is this change to the definition of rape a good change? Why or why not? (b) What changes in society do you think led to the definition of rape changing in 1997?

Until 1991 in some states, a man could not be charged with raping his wife. This refl ected the belief that a woman was the property of her husband, and therefore could not legally refuse to have sexual relations with him. This belief still exists in some cultures, although it is now not acceptable in law in Australia. HOT SPOT

What changes in society do you think led to men being able to be charged with rape of their wives?

CHAPTER 5 Criminal law 159 It is extremely difficult to prove in court that rape has occurred. The person complaining that they have been raped (called the complainant) must prove, beyond a reasonable doubt, that rape has occurred. Each of the 12 members of the jury must be convinced that the complainant has been raped. The Seeking Justice report by the Queensland Crime and Misconduct Commission (2003) estimated that 17 per cent of sexual assaults reported to police end in conviction. Based on available data from a number of sources, only about 15 per cent of incidents of sexual assault are reported to the police. This leads to an approximate assault conviction rate of 2.5 per cent. Usually, there is not an argument that sexual intercourse occurred between the person accused of rape and the complainant. Medical evidence, such as DNA evidence, can often be used to prove that intercourse occurred. The main argument in a rape trial is usually whether the complainant con- sented to sexual relations or not. This can be a very difficult issue to prove either way. The complainant must prove that intercourse took place without consent. If the complainant struggled during the attack, she or he may have bruising or other marks that can be used to show a lack of consent. However, the rapist may have told the complainant that if she or he put up a struggle, she or he will be harmed. As a result, the complainant in this situation may not be able to show physical evidence of the lack of consent. In the past, the law has also applied two rules of evidence in rape cases. These rules were created out of concern that a person would be convicted of rape when the person did not commit the offence, for example, because the complainant actually did consent. Once an allegation of rape is made against a person, it can be difficult for that person to disprove it (in the eyes of the community, as well as in court). There have been times in the past when a claim of rape is made up by a complainant, sometimes to get revenge for something the accused person did. (Of course, this is not to suggest that a majority of rape claims are made up. Nor is it to belittle the experience of actual rape victims. Rape is a horrific crime.) The first rule of evidence related to assessing the credibility of evidence regarding a sexual offence. Failure to do so might make it more difficult to obtain a rape conviction: Crofts v R [1996] 70 ALJR 917. This doctrine was abolished in Queensland by s4A of the Criminal Law (Sexual Offences) Act 1978 (Qld), which provides that a judge must not warn or suggest in any way to the jury that the law regards the complainant’s evidence to be more reliable or less reliable only because of the length of time before the complainant made a complaint. Subject to this rule, the judge may make a comment to the jury on the complainant’s evidence that is appropriate in the interests of justice.

ACTIVITY 4 i e (Individually, then in small groups)

Carefully read the feature article below and answer the following questions in clear sentences.

160 SECTION B Crime and society Violating true justice

by Christine Jackman

LU was walking home alone late one night when a The alleged attacker received comprehensive legal stranger ran up behind her, demanded money, then backing; Lu and her husband John received almost grabbed her by the hair and throat. no assistance or support to help them through the He then forced her under a bridge and raped her. judicial maze. Throughout the terrifying ordeal he kept at least A trial was fi nally set for November — eight one hand on her throat, choking her. He grabbed a months after the attack — but the Department of rock, told her he was going to kill her, and beat her Public Prosecutions only made an appointment to unconscious, smashing her face, her skull, her nose meet Lu fi ve weeks before the trial. She did not meet and severely lacerating her forehead. the prosecutor of her case until a few days before. Miraculously Lu, then 41, survived. She was When the trial fi nally started, Lu was required to obviously made of sterner stuff than her attacker wait at the court for four days before she gave evi- realised. She was lucky she had that inner strength dence for fi ve hours on a Thursday afternoon and a — because that late-night rape and bashing under Friday morning. a bridge last year proved to be just the beginning of She recalls: ‘It was so destructive having to tell my her ordeal. story over and over again in the graphic detail that As she recalled in a paper she presented to a the barrister demanded, to so many people, mainly justice conference in Perth last month: ‘The attack men, while the accused just sat and was asked is not the only violation — this continues at the nothing.’ time of the forensic examination, through the Lu and other witnesses were also required to give police interviews, through the looks you see in peo- their full names, addresses, and the addresses of ple’s faces, every time you see violence on television their workplaces, all the time feeling the steely gaze or read about it in the paper, and culminates in the of the accused on them. most traumatising violation of them all — the trial.’ After two weeks of legal wrangling, in which doubt Like most women, Lu did not know that standard was repeatedly raised about Lu’s character and evi- police and medical procedures after such a horri- dence, the accused was found not guilty. No offi cial fying incident demand that survivors do not change effort was made to break this to Lu; she was told by a their clothes, shower or bathe any part of their local journalist who contacted her for comment. And body, or even go to the toilet until after the forensic it was only then that it was revealed to the public, interview and/or police interview. including the jury, that the man who had been She didn’t know that even if you are vomiting and acquitted was a previously convicted serial rapist. in intense pain from serious head injuries, you will Lu’s case raises some serious questions. I don’t not be allowed to drink or take painkillers . . . know the answers to them — only that they desper- Or that often no explanation is given for these ately need more public consideration than they are procedures and women are not asked for their receiving. After all, this is a big community problem: consent to them. last year, 2470 sexual assaults were reported in Or that some have to wait several hours before Queensland (including about 400 assaults on males); a forensic examination can take place at all — with 75.36 sexual assaults per 100 000 people, this because some doctors refuse to attend overnight state has the third highest rate of this crime in sexual assault cases . . . Australia, after Western Australia and South Australia. She found all of this out that night. We may never be able to eliminate sexual assault Then there was the long haul through the courts, from society, but we certainly need to try harder. where she feels she rapidly became just another And what we can eliminate is what the profes- piece of evidence, rather than a human being who sionals call ‘secondary victimisation’; what Lu and had survived a vicious and degrading unprovoked other survivors call ‘being raped by the system’. attack. (continued)

CHAPTER 5 Criminal law 161 For example, the evidence collected during can be spent on the legal defence of an alleged forensic examinations often proves vital to the legal offender, surely we can afford a liaison offi cer, case against an offender, if one is eventually caught. for example, to provide support and information As objective observers, we can understand why this throughout the legal process? evidence needs to be collected as soon as possible. Police are often overburdened and are certainly But what is desperately needed is more sensitivity not in the position to offer sexual assault survivors towards the survivors, who are often in shock and that support, although many deserve credit for dealing with serious physical injuries. Clearly, many doing their best to do so. . . . medical offi cers need more training in this area. Lu’s story does not make pleasant reading, but Court processes, too, must become more stream- she knows it has to be told if things are going to be lined and more sensitive. If several thousand dollars changed.

FIGURE 5.9 Source: The Courier-Mail, 24 July 1996.

1. What does the writer mean by ‘secondary victimisation’? 2. Describe the changes recommended by the writer in (a) the gathering of physical evidence (b) court processes (c) the defendant’s record. 3. Should the procedures experienced by rape victims like Lu be changed in any way? Why or why not? 4. If changes should be made, what changes do you recommend? Explain why.

The second rule of evidence related to judges warning juries about the dangers of convicting an accused of a sexual offence if the only evidence available to support the charge was evidence from the complainant. Section 632 of the Criminal Code 1899 (Qld) now deals with this issue in Queensland. It provides that a person may be convicted on the testimony of one witness, although the evidence is not corroborated by other evidence. It clarifi es that there is no longer a requirement that a judge warn a jury that it is unsafe to convict the accused on the uncorroborated testimony of one witness. The section allows a judge to make a comment on the evidence given at trial that is appropriate in the interests of justice. The High Court recently suggested a statement reminding the jury to be satisfi ed beyond reason- able doubt of the truthfulness of the witness who stands alone as proof of the Crown case is enough. The jury could be reminded that where only one witness says a crime was committed, the evidence of that witness must be scrutinised carefully before a guilty verdict is made; but this should not be taken to mean that such evidence is unreliable: Tully v The Queen [2006] HCA 56. Such a warning was deemed necessary where, for example, there were inconsistencies in evidence, a long period elapsed between the alleged inci- dent and complaint, that the accused and complainant were close in age, and that the allegations were fi rst made during schoolboy talk of sexual matters: Robinson v The Queen (1999) 197 CLR 162.

162 SECTION B Crime and society HOT SPOT

Consider the two current rules of evidence as they apply to rape cases. Do they provide justice for all stakeholders? Explain your views.

In the 1990s, many people were also concerned that, sometimes, judges have made inappropriate comments in rape cases. One example is a comment made by a male judge in the course of a rape charge brought by a wife against her husband:

Of course, you may run into considering in this case the question of, shall I say, persuasion. There is, of course, nothing wrong with a husband, faced with his wife’s initial refusal to engage in intercourse, in attempting, in an acceptable way, to persuade her to change her mind, and that may involve a measure of rougher than usual handling. It may be, in the end, that han- dling and persuasion will persuade the wife to agree. Sometimes it is a fi ne line between not agreeing, then changing of the mind, and consenting (case stated by DPP (No 1 of 1993) (1993) 66 A Crim R 259).

In this trial, the judge also told the jury the story of a woman who falsely accused a man of rape. The man was charged, and released from police custody. He later committed suicide. The judge told the jury to be mindful of this story in considering the rape case currently before them. The judge’s suggestion, that it was acceptable to use physical force to per- suade someone to have sexual intercourse, outraged many members of society. They did not understand or accept the judge’s view that a woman could ever be forcibly ‘persuaded’ to have sex. What could the judge possibly mean by ‘attempting, in an acceptable way’ to do the persuading? Some members of the community called for the judge’s sacking. There are other examples of inappropriate comments being made by Aus- tralian male judges: (a) Sometimes when a woman says no to sex, she means yes. (b) Raping a prostitute was not as serious as raping a ‘chaste’ woman. (c) A judge, when sentencing a convicted rapist, claimed that the attack was not as serious because the victim passed out during the attack and so was not conscious. (d) If a woman, when told that she was going to be raped, asked the attacker to wear a condom, this could be evidence of consent. (e) Rape of a mature woman was less serious than rape of an 18-year-old virgin. This is not to suggest that most judges have these attitudes. These comments have been deliberately chosen because they are considered extreme ones. Judges have often been criticised as being out of touch with the community and have also been criticised for gender and racial bias in court proceedings. The issue as to whether judges should be required to undergo compulsory training or education is a controversial one, as it is considered that compul- sory training or education would put the independence of judges at risk. The national Judicial College of Australia was established in 2002 as an independent organisation to assist judges to administer the law in a just,

CHAPTER 5 Criminal law 163 competent and speedy way. This includes providing educational programs intended to broaden understanding of the changing nature of society as well as cultural differences. The Australian Institute of Judicial Administration Incorporated (AIJA) is a research and educational organisation associated with Monash Univer- sity of New South Wales and funded by governments throughout Australia (the Standing Committee of Attorneys-General), as well as its 1000-strong membership. The AIJA conducts educational programs for judges, court administrators and lawyers, such as gender awareness and cultural awareness programs, and technology and the courts. The Victorian Government has recently announced plans for compulsory training for judges. Victorian Attorney-General Rob Hulls said this did not mean he considered judges to be out of touch with community expectations: ‘I think it will help ensure that judicial offi cers are best equipped to deal with changes in society, to changes in the law and also community expectations of the justice system’. ‘It is true that the judiciary is increasingly scrutinised by the public in this regard and I think it is certainly necessary for the judiciary not only to have the skills to undertake the duties of offi ce, but also to maintain both the currency of their skills and an understanding of the changing nature of the society that they serve.’ At the time of writing, judges in Queensland were not required to undergo any compulsory training or education.

HOT SPOT

(a) Should Queensland judges be required to undergo compulsory education and training? If so, in what areas? Justify your response. (b) Conduct a survey of the community on this question.

ACTIVITY 18 i c (In small groups or individually)

Do these comments made by judges reflect 1. Based on the results of your survey, are judges community attitudes on this subject? Design a in touch with community attitudes? Each group series of questions and conduct a survey in the should report their fi ndings to the class. local community. Interview people from different 2. Is there any difference between the views of older age groups. Group A could interview students and younger people in society on these issues? at school, Group B young adults, Group C older Describe the differences, if any. adults (your parents’ age group), Group D, elderly 3. Is there any difference between the views of the members of the community. Each group member males and females interviewed? Describe the should aim to interview five people. differences, if any.

A female judge in New South Wales has expressed concern that women are disadvantaged by the legal system in many areas of the law, including criminal law involving sexual assault. Studies of women judges in the United States (where there are enough women judges to compare with male judges) indicate that there are signifi cant differences in the judgements handed down

164 SECTION B Crime and society by male and female judges in ‘gender-charged’ cases. The judgements of women judges indicated a ‘gender awareness’ stance that was often lacking in the male judges.

HOT SPOT

(a) Identify the stakeholders in sexual offence laws. (b) Some women’s groups are calling for a special court to deal with crimes against women. They think this is the only way for women to get a ‘fair deal’ from the criminal justice system. What special features do you think this court might have? Is the idea of a special court for women a good idea? Why or why not? (c) Should there be more women judges? Why or why not?

Other rape cases Rape also occurs if a person has sexual intercourse with another person with that person’s consent, but if that consent was obtained by false statements about the nature of the act, or if the person is a married female, by imperson- ating the female victim’s husband. Note that as from 1997 ‘married female’ includes a woman living in a de facto relationship with a man.

HOT SPOT

What changes in community values caused this change?

An example of this rule is the case of Williams [1923] 1 KB 340. There the accused was a singing teacher. He persuaded a 16-year-old student to have sex with him by telling her it was an operation necessary to improve her breathing. The accused was convicted of rape. There was no consent, because one of the parties had misled the other about the nature of the act.

ACTIVITY 19 i (Individually or in pairs)

Read the fact situations below to determine whether convictions of rape would be likely: EXAMPLE A psychologist has sexual intercourse with a patient while the patient is under hypnosis. ANSWER The court would convict the psychologist of rape, because the patient could not have given consent while under hypnosis. (a) A woman gymnast consents to sex with a man, of Intention to Marry’ which means they are after he tells her it is good for flexibility. married (in fact, it does not). (b) A woman consents to sex with a man, after he (e) A man consents to sex with a woman, after tells her he is a famous footballer (he isn’t). she tells him she is his wife. He is under the (c) A man consents to sex with a woman, after influence of alcohol. she tells him she is a famous hockey player (f) A burglar, robbing a house at night, gets into (she isn’t). bed with a sleeping woman who, mistaking him (d) A woman consents to sex with her fiancé, for her husband, has sexual intercourse with after he tells her that he has filed the ‘Notice him.

CHAPTER 5 Criminal law 165 Other sexual offences The Criminal Code contains sections describing various other sexual offences. (Note that ‘indecent’, and ‘gross indecency’, are not defined in the Code.) These include: (a) Sexual assault: Section 337 states that a person who unlawfully and inde- cently assaults another, or who procures another to commit an act of gross indecency on the other person is guilty of a crime. Sexual assault would include matters not coming within the definition of rape. (b) Indecent treatment of children under 16: This includes acts other than sexual intercourse. (c) Carnal knowledge of girls under 16: It is irrelevant that the girl consents to intercourse, because being under 16 she is not capable of giving legal consent. For a case example, refer to R v D’Arcy [2001] QCA 20 where a school teacher was convicted of this offence against his female primary school student. On appeal, his sentence was reduced from 14 to 10 years. (d) Abuse of intellectually impaired person: This section applies particularly to sexual abuse. (e) Incest: Section 222 defines incest as a person having sexual relations with a person who is their offspring, sibling, parent, grandparent, uncle, aunt, nephew or niece, knowing that the person has that relationship to them. It is irrelevant that either or both parties consented to the acts. (f) Indecent acts in a public place (g) Procuring sexual acts by coercion: Section 218 states that a person who by threats, tricks or intimidation obtains another person to perform a sexual act commits a crime. An example might be claiming to be a famous person in order to have sexual relations with another. (h) Taking a child for an immoral purpose/maintaining a sexual relationship with a child: A child is either a person under the age of 16 or 18, depending on the nature of the acts.

Prostitution The regulation of prostitution in Queensland has had a turbulent history. Until the late 1980s, brothels flourished in the State, and some of these establishments were linked to police corruption. Brothels were prohibited during the 1990s, with prostitutes allowed to offer services on an indi- vidual basis from private premises. However, this caused difficulties for the safety of workers, with workers unable to legally employ security staff, and some clients harassing prostitutes at their homes. Some prostitutes were murdered. The Prostitution Act 1999 (Qld) saw a new approach, with the limited re- introduction of brothels in Queensland. The Act provides for licensed brothels to operate in the State in certain areas. A person who wishes to own a brothel must apply to the Prostitution Licensing Authority for a licence to do so. Licences are issued on a yearly basis and the applicant must be of good char- acter. They cannot have a criminal record in the areas of corruption, homicide, sexual offences, kidnapping, prostitution or immigration. A person can have

166 SECTION B Crime and society only one licence at any one time. A maximum of 10 staff can be at the brothel at any one time. The Act provides for several offences in relation to prostitution: (a) publicly soliciting for prostitution (this includes both the prostitute and the client) (s73) (b) intimidating or harassing a person to continue to provide prostitution services (s77) (c) providing or obtaining prostitution involving sexual intercourse (broadly defi ned) without a condom (s77A) (d) having more than 10 staff on the premises (s78) (e) have an interest in more than one brothel (s82) (f) possessing liquor in a licensed brothel (s83) (g) failing to provide, or providing inaccurate information about a person’s age (s85) (h) as a licensee, allowing a prostitute to work knowing the prostitute has a sexually transmissible disease (s89) (offence made out unless licensee can show they believed on reasonable grounds the prostitute had been medi- cally examined or tested at regular intervals) (i) working as a prostitute knowing they have a sexually transmitted disease (s90) (offence made out unless prostitute had been medically examined or tested at regular intervals in relation to sexually transmitted diseases) (j) advertising specifi c services offered at a brothel without the Authority’s approval (s93) (k) publishing a statement intended or likely to induce a person to seek employment as a prostitute (s94) or (l) advertising prostitution as a massage service (s95).

HOT SPOT

Why have successive Queensland governments been reluctant to legislate to regulate prostitution in Queensland?

ACTIVITY 20 c (Individually or in pairs)

1. Research all prostitution laws in Queensland 3. Investigate the views of community members — since 1991 and compare them to the current what are their views on brothels being established legislation. Identify stakeholders and describe in their areas? their views on these laws. 2. Research the prostitution laws in other states and compare these to Queensland.

Some stakeholders are still very dissatisfi ed with the Queensland Govern- ment’s recent prostitution laws as the news item that follows shows. Note that Mr Bill Carter is no longer the Prostitution Licensing Authority’s chairman. At the time of writing, this position is held by Mr Manus Boyce, QC. Find out more about the Prostitution Licensing Authority on the Queensland Govern- ment’s website.

CHAPTER 5 Criminal law 167 Laws ‘endanger streetwalkers’

Hedley Thomas, Sean Parnell and Paula Doneman

MORE murders and mutilations of prostitutes in He believes that with the stroke of a pen Mr Queensland are inevitable under the Beattie Govern- Beattie could improve the safety of street-walking ment’s fl awed approach to regulation, according to prostitutes and their clients by setting up desig- the chairman of the Prostitution Licensing Authority. nated areas for touting and controlled safe houses Retired Supreme Court judge Bill Carter, QC, who for sex. was appointed by Premier Peter Beattie in 2000 But Mr Carter said he was not optimistic because to head the regulatory authority, yesterday spoke such a proposal was politically unattractive, adding about his grave concerns over the safety of street ‘there aren’t any votes in street prostitutes, it’s as prostitutes. base as that’. But Mr Beattie rejected his comments. Mr Beattie ruled out the establishment of ‘red light Mr Carter said street prostitutes were completely districts’ and said street-walking prostitutes could unprotected and at the mercy of violent clients become single operators, join boutique brothels or because of the regulatory framework’s emphasis on get rehabilitation for their drug addictions. law enforcement rather than safety. ‘I don’t, frankly, believe creating a red light dis- ‘These women are someone’s daughter, some- trict is going to protect lives, I think it is going to one’s sister, someone’s mother and we, as a put more people at risk,’ he said. community, have to be conscious that society has Mr Beattie said legalising kerbside prostitution led them into a working environment where their would increase the number of murders and rapes lives are at risk,’ Mr Carter said. in Queensland. ‘It is an enormous social issue and human ‘You end up with death row — people on drugs, beings are being murdered over it. It’s time for the putting their lives at risk,’ he said. Government to rethink it.’ A police taskforce is investigating the murders of Homicide Detective Inspector Mike Condon three Fortitude Valley prostitutes and one attempted said Taskforce Midas was following a number murder amid concerns that a serial killer may be of promising leads into the prostitute murders. responsible. ‘We are also conducting inquiries worldwide in Mr Carter’s outspokenness will put him at odds relation to the latest research into the life expect- with Police Minister Tony McGrady and Mr Beattie, ancy of a DNA sample — how long it remains alive who said yesterday he would not overhaul the laws on the body,’ he said. even if another streetwalker were killed. The 30-strong team were reviewing 200 hours of But Mr Carter said he was ‘selected for the pos- security camera footage to help piece murdered ition because of my independence and I would not prostitute Julie McColl’s last movements between have any concern at all that my speaking out on this midnight and 7.50 am. on Wednesday last week. would cause any detriment to me’. Information to Crime Stoppers on 1800 333 000.

FIGURE 5.10 Source: The Courier-Mail, 8 March 2003.

ACTIVITY 21 k (Individually or in pairs)

1. Describe the views expressed by Mr Carter in relation to Queensland’s current prostitution laws. 2. Describe Mr Beattie’s views on the current law. 3. What incidents have occurred for the issue of prostitution law reform to be raised again?

168 SECTION B Crime and society ACTIVITY 22 k (Individually or in pairs)

1. Describe the issue that must be proved in a rape 3. Name two other sexual offences in the Criminal trial. Code. 2. Describe the rules of evidence and how they 4. In what circumstances can prostitution be legally apply in a rape trial. conducted in Queensland?

Sexual offenders — reporting obligations In response to community concern about the whereabouts of particular sex offenders, the Queensland Government introduced a limited regime in 2004 to track the movements of sex offenders in this State. The regime is found in the Child Protection (Offender Reporting) Act 2004 (Qld). Currently, the legislation applies only to offenders against s228A of the Criminal Code 1899 (Qld), which is involving a child in child pornography, and incest by an adult female. The legislation may in the future apply to further categories of offender. Some people argue that the provisions should be extended to more categories of offenders.

HOT SPOT

Do you agree that the provisions should be extended to more categories of offender? Justify your views.

Where the legislation applies to an offender, the offender must report yearly to the Police Commissioner as to the following: (a) the offender’s name (together with any previous names) (b) the offender’s date of birth (c) the home address of the offender (d) the names and ages of any children who generally reside in the same house as the offender or with whom the offender has regular unsuper- vised contact (e) the nature of the offender’s employment (if any), the name of the offender’s employer and the address at which the offender is generally employed (f) details of any club affi liation the offender has by which the offender might come into contact with children (g) the offender’s vehicle details (h) details of any tattoos or distinguishing marks the offender has (i) whether the offender has committed offences of a similar nature in an overseas country (j) details of any period in which the offender was detained by the government (k) details of any plans the offender has to leave Queensland. Changes to personal details must be advised to the Commissioner within 14 days. The obligation lasts for a minimum of eight years, sometimes longer depending on the offence/s the offender has committed. Section 50 of the Act makes it an offence for a person to whom the Act applies not to comply with these reporting obligations. The maximum penalty is a fi ne of $11 250 or two years’ imprisonment.

CHAPTER 5 Criminal law 169 IN BRIEF

1. It is very difficult for the victim of a sexual attack to have the offender convicted. 2. Some members of the judiciary have shown themselves to be out of touch with community attitudes in the area of sexual offences. 3. An area of criminal law that has required, and may still require, reform is the law regarding prostitution.

Assault UNDERSTANDINGS

By the end of this section, you should be able to explain: • the legal meaning of ‘assault’ • the circumstances when assault is considered more serious • the legal meaning of ‘stalking’.

Section 245 of the Criminal Code defi nes an assault very broadly. It is applying force to the person of another, including by touching. This includes ‘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’. Assault also includes attempting or threatening to apply force of any kind to another person without their consent, where the person making the attempt or threat could actually or apparently carry out the threat at the time. This means they can actually do what they are threatening, or the person threat- ened thinks they can. It is not necessary for the person threatened to be frightened by the threat. A verbal threat by itself is not a criminal assault. The person must also act in such a way that indicates the intention to physically harm the person threat- ened. So, a person could not criminally ‘assault’ a person over the phone or through e-mail. Even when a person agrees to be assaulted, this assault will still be con- sidered unlawful if full and genuine consent has not been given. The law considers that persons who are under 18 years old (minors) and persons who are forced or tricked into consent cannot be considered to have given full and genuine consent.

HOT SPOT

(a) In your view, should verbal threats be examples of legal assault? (b) Do you think the law provides enough protection to those who are threatened with assault? Why or why not? (c) How could a person be ‘tricked’ into consenting to assault?

170 SECTION B Crime and society Some examples of conduct that has been found to be assault include: (a) Driving over the foot of a police officer: Fagan v Metropolitan Police Commissioner [1969] 1 QB 439. (b) Setting a dog on another person: Croft v Blair (unreported Qld CCA 15/12/89). (c) Pointing a loaded gun at police, threatening to shoot: Brady v Schatzel [1911] St R Qd 206. (d) Threatening to stab a person with a knife if that person came any closer: Police v Greaves [1864] NZLR 295. (e) Walking up close behind a girl and making an indecent suggestion to her: Fogden v Wade [1945] NZLR 724. (f) Pointing a toy pistol at a taxi driver: R v Everingham (1949) 66 WN (NSW) 122.

FIGURE 5.11 Conduct considered as assault

A more serious assault might be classified as assault causing bodily harm. This is defined as causing bodily injury that interferes with health or comfort. The most serious assaults are regulated by s320 (grievous bodily harm) and s340 (serious assault) of the Code. Grievous bodily harm is bodily injury that permanently impairs a person’s bodily functions or abilities. Section 340 applies to: • assaulting another intending to commit a crime • assaulting a police officer while in the course of duty • assaulting a person over the age of 60 • assaulting a person who relies on a guide dog, wheelchair or other remedial device • assaulting a person in connection with a business operation.

ACTIVITY 4 i e (Individually, then in small groups)

Decide whether the examples below could result in charges of assault. EXAMPLE A man gets into a heated argument with another at the pub. He punches the man in the face. ANSWER The man could be charged with assault, because he has applied force to the other man, without the man’s consent. 1. A small Year 8 boy tells a very large Year 12 boy that he is going to make ‘mincemeat’ of him after school. 2. One man aims a loaded gun at another and says ‘I’m going to shoot you’.

CHAPTER 5 Criminal law 171 3. One person telephones another and threatens to shoot the person. 4. A person receives a chain letter stating that if the person does not mail the letter on, the person will suffer a terrible fate. 5. While the teacher is marking the roll on parade, she accidentally steps on a student’s foot. 6. The school bully follows a student home, walking close behind and sometimes making threatening comments to the student from behind. 7. A person with a black belt in Tae Kwon Do needs to harden his feet and legs for a kicking competition. He invites members of the club to strike and kick him while he stands quietly. 8. Judy goes to a beauty salon to get a tan. She falls asleep under the strong tanning lights, and wakes up badly burned.

HOT SPOT

(a) Do you agree that the crimes on the opposite page are the most serious assaults? Why or why not? (b) Describe other circumstances where you believe assault should be described as serious assault. Explain your reasons. (c) Should assaults against women or children be considered more serious? Why or why not?

In 1997 a new offence of torture was inserted into the Criminal Code. This followed a case where a Sunshine Coast man punished his stepson by giving him electric shocks. At the time, the man could be charged only with assault. Torture specifi cally relates to the intentional infl iction of severe pain and suffering upon another person. Torture differs from assault causing bodily harm. Bodily harm is where the victim suffers a physical injury while torture does not require physical injury, only the infl iction of pain and suffering.

Dad charged with chaining boy, 11 by Greg Stolz A man who allegedly chained his 11-year-old son to a pole for two days as punishment for running away was arrested on the Gold Coast yesterday. The man, 35, allegedly placed a dog chain and padlock around the boy’s neck and tethered him to an annexe on a caravan. He was arrested by Surfers Paradise Juvenile Aid Bureau detectives and charged with torture and deprivation of liberty. Police allege the offences occurred in October and were aimed at pun- ishing the boy for roaming away from the caravan at night. The boy claimed he was given only water during his 48-hour ordeal but this was denied by his father, who said he fed him sandwiches. The boy reported the alleged abuse to police during a visit to his grand- parents, with whom he is now living. The man is expected to face Southport Magistrate’s Court today.

FIGURE 5.12 Source: The Courier-Mail, 24 January 2006.

172 SECTION B Crime and society Note that the offence of deprivation of liberty refers to the person (in this case, the child) being restrained in some way against their will.

HOT SPOT

Do you think it was necessary for the law to recognise torture as a separate offence to assault? What is the social justification for this change to the Criminal Code?

Generally speaking, a person commits the offence of assault, assault causing bodily harm, serious assault, or grievous bodily harm only if the person injured has not consented to the contact. As a result, if someone brushes past you in the corridor, you cannot have them charged with assault. As a member of society, you agree to accept a certain amount of ordinary touching. Other- wise, society would not be able to function properly. This issue of consent also applies to body contact sports. By taking the fi eld, players legally consent to any assaults that take place within the rules of the game. If they are injured by another player who is playing within the rules of the game, they cannot have that player charged with an offence. However, there are limits to what players consent to. A player who uses force that is clearly excessive according to the rules can be charged with a criminal offence. For more information in this area, refer to Legal Studies in Action Book 2, Third Edition, Sport and the Law unit.

Offence Definition

Assault Touching another or otherwise causing them injury or discomfort, including by threats

Bodily harm Assault that interferes with health or comfort

Grievous bodily harm Assault that permanently impairs a person’s bodily functions or abilities

Serious assault Assault in connection with a crime Assaulting a police offi cer Assaulting an elderly or incapacitated person

FIGURE 5.13 Assault offences

Stalking There are several elements of the offence of stalking, which was created in 1993. All elements must be established by the prosecution to prove the offence was committed. (a) It must be a ‘concerning act’. A concerning act is defi ned broadly, and can include the following: loitering near, watching or approaching another person; loitering near, watching or entering a person’s workplace; tele- phoning another person; interfering with another’s property; leaving offensive material where it will be found by the other person; giving offen- sive material to the other person; or harassing or intimidating the person.

CHAPTER 5 Criminal law 173 (b) the concerning act occurs on at least two separate occasions (c) the offender intends the person being affected to know about the conduct (d) the person does know about the conduct (e) the conduct would cause a reasonable person to believe that that person (or a person close to that person) will be injured, that person’s prop- erty will be damaged, or the property of a person close to that person, including that person’s employer, will be damaged. Stalking can include bullying, and bullying no matter under what circum- stances is unacceptable. Surveys of Australian children show that about one child in six is bullied by another student or a group of students on a weekly basis. Leading psychologists are concerned with the effects of bullying, which include a loss of self-esteem, suicidal feelings and feelings of isolation, depression and anger. The Queensland Government is very concerned about the rights of every child in school to feel safe, supported and respected. Education Queensland has coordinated a national project to help school communities prevent bullying, harassment and violence. Students can access information about bullying and how to deal with it effectively at .

FIGURE 5.14 Source: www.bullyingnoway.com.au/Australian Education Authorities, 2004.

174 SECTION B Crime and society A person being stalked can ask the court for an ‘apprehended violence order’ to be made against the stalker. This order prevents the stalker from coming within a certain distance of the other person. A person who breaks the court order can be sent to jail. The maximum penalty for stalking is three years’ imprisonment, increasing to fi ve years if violence is used or threatened, the stalker has a weapon, or the stalker is breaching a court order by stalking the other person. Offenders are now using the internet to facilitate their stalking of victims. Unsolicited (unrequested) e-mails are one of the most common forms of harass- ment and can include hate, obscene or threatening e-mails. Sending computer viruses or high volumes of electronic junk mail (spam) can also constitute stalking, but only if these communications are repetitively sent in a manner that is designed to intimidate the recipient. Note that Section 359B of the Queens- land Criminal Code regulates ‘cyberstalking’ as well as real world stalking. You may investigate cyberstalking in Year 12 in the technology section of study. HOT SPOT

(a) Do you believe that stalking is a serious offence? (b) Do you believe the penalties for stalking are appropriate? (c) What changes in society could have led to the introduction of the offence of stalking?

ACTIVITY 24 i (Individually or in pairs)

Do the following circumstances amount to stalking? EXAMPLE After the break-up of a relationship, a woman follows her ex- boyfriend around everywhere. ANSWER The concerning act is the following of the ex-boyfriend by the woman. However, unless he has reason to fear violence or property damage being caused to him, he is not being legally ‘stalked’. 1. A person phones a potential employer on several occasions asking about possible employment. 2. A person asks another person out on a date on fi fteen different occasions. The other person has made it clear that he or she is not interested. 3. After the break-up of a relationship, a woman threatens her ex-boyfriend’s new girlfriend on several occasions. 4. After a woman leaves a violent relationship, her husband phones her constantly, telling her he knows where she is, and that she had better return to the family home, ‘or else’. 5. A man is infatuated by a woman and drives by her house often when she is not at home. 6. A student writes love letters constantly to a teacher. The student has a criminal record for violent assaults of women who have rejected his advances. 7. Contestants of Big Brother being constantly watched by television cameras. 8. An ex-boyfriend constantly sends SMS messages to a young woman.

CHAPTER 5 Criminal law 175 TV presenter weathers unwanted affections

Ryan Heffernan, Gold Coast Bureau

A young man smitten with a television presenter admitted stealing a pho- tograph from her home and faking a hearing disorder to get near her at her workplace. Nathan Patrick Schiewe, 22, of Brisbane, pleaded guilty in a Gold Coast court yesterday to stalking Channel 9 identity Natalie Gruzlewski. Schiewe admitted becoming fi xated with Ms Gruzlewski, a weather girl and Footy Show guest. He was accused of breaking into her home in February and stealing a photograph of her with her mother, but later felt guilty and wrote a six-page letter in which he apologised for his behaviour. Referring to a letter tendered in evidence, Schiewe’s solicitor, Jason Buckland, told Southport Magistrate’s Court his client had never displayed any violent tendencies and all his actions revolved around the loving feel- ings he had for Ms Gruzlewski. ‘There are no actual threats of violence,’ Mr Buckland said. ‘He basically resigns himself to unrequited love in the letter. ‘He says she is the most beautiful woman he has ever seen and that she is a very talented TV presenter. ‘Then he says “I would never expect you to feel remotely the same way about me. I don’t ask much, I don’t expect anything”.’ Police prosecutor Peta Eyschen told the court Schiewe had pretended to be hearing-impaired to various degrees to get past security guards and into Channel 9’s Surfers Paradise offi ce. She said many of Schiewe’s actions centred around that offi ce building, where he allegedly hid in a fi re escape, snuck into a basement car park, con- stantly telephoned her at work and waited for hours on the street outside. After the hearing, Schiewe said he would not take part in any photographs or interviews unless he was paid $200. ‘I don’t want my photo in the paper,’ he said, ‘but I don’t have any money and I need some to get me through until next week. Can you pay me $200? If you pay me $200 I’ll be in a photo and I’ll talk about it.’ He later unsuccessfully dropped the price to $50. Schiewe was convicted, placed on two years probation and ordered to undertake any psychiatric or psychological testing which may be ordered. He was also placed on a restraining order which prohibits him from going within 200m of Ms Gruzlewski for three years.

FIGURE 5.15 Source: The Courier-Mail, 1 July 2003.

ACTIVITY 25 k (Individually or in pairs)

1. How did the offender ‘stalk’ Ms Gruzlewski? 2. What factors were relevant in the offender’s sentence?

176 SECTION B Crime and society Students need to take bullying seriously so that they do not end up like the children in the news item below.

Boy who killed bully avoids life term

Mark Oberhardt

A TEENAGER yesterday escaped a life sentence for ‘executing’ a bully, who had made his life hell, when a judge found the crime wasn’t a heinous one. The Supreme Court in Brisbane heard that in a last act of desperation, the boy, then 16, plunged a kitchen knife into the neck of his main antagonist, Aiden Timothy Liyanage, 18, as they walked across a football fi eld. Liyanage staggered to the car park of a nearby store where he died despite efforts by neighbours to save him. Justice Cate Holmes sentenced the boy, now 17, to 7½ years’ jail and he must serve 70 per cent of it before being eligible to apply for post-prison release. Under Queensland law, a life sentence is not mandatory for a juvenile murderer. The Crown can apply for one should it prove the crime was ‘heinous’. Otherwise, the maximum sentence is 10 years’ jail. Justice Holmes said by its nature all murders were heinous but she did not believe a life sentence was justifi ed in this case because of the immediate precipitator to the offence. She noted the boy was assaulted by Liyanage in the time leading up to the murder and the boy had decided he’d had enough of the ‘abusive’ relationship. She said she did not fi nd the crime heinous in the manner the legislation intended. Justice Holmes said because the hearing involved things being said against the victim (Liyanage) as mitigating factors for the boy, it did not mean Liyanage’s family had not suffered a great loss. She said Liyanage had been precious to his family and they believed he was showing more promise after earlier being troublesome. Justice Holmes said another factor in the sentencing was the boy would probably have to serve part of his time in an adult jail. Last November, the boy pleaded guilty to having murdered Liyanage on March 24 last year but his sentence was adjourned to this week. The court heard the boy, a Year 11 student, was a member of a group of mainly older boys who bullied him. He was subjected to regular abuse, assaults and theft of his property. However, because his mother suffered a medical condition and his grand- mother was in hospital, the boy had no one to tell. He apparently accepted the abuse so he could still feel part of a group. The boy fi nally ‘had enough’ when Liyanage demanded he give up a port- able disc player so it could be sold to buy marijuana.

FIGURE 5.16 Bullying can lead to tragic consequences. Source: The Courier-Mail, 2 April 2003.

CHAPTER 5 Criminal law 177 ACTIVITY 26 k e c (Individually or in pairs)

1. Explain what is meant by a ‘heinous’ crime. 2. What was the crime the bullied victim was convicted of? 3. What sentence is appropriate for the offender in this case? Justify your view. 4. Research the internet for a legal defi nition of a ‘heinous’ crime.

ACTIVITY 27 k (Individually or in pairs)

1. Can a person be charged with assault if the ‘assault’ occurs: (a) accidentally? (b) during a game of netball (or other contact sport)? (c) with the victim’s consent? (d) with the consent of a person under 18 years of age? (e) when no physical contact has taken place? Give reasons to support your answers. 2. In your own words, describe what is meant by ‘full and genuine consent’. 3. Provide two examples of a ‘concerning act’. 4. Describe an ‘apprehended violence order’. 5. Describe how stalking can occur online.

IN BRIEF

1. A criminal assault is defined very broadly by the criminal law. 2. There is a range of charges when an assault has been committed, depending on how serious the assault is. 3. The law of assault has begun to affect sport. 4. Changes in society have necessitated the introduction of the offence of stalking. 5. Bullying is of increasing concern at school, at work and in the community at large.

Offences against property UNDERSTANDINGS

By the end of this section, you should be able to explain the various ways in which the law protects a person’s right to property.

One of the ways the law protects the right of citizens to own property is to make it a criminal offence to interfere with the property of another. Offences against property include: • stealing • robbery

178 SECTION B Crime and society • burglary • fraud • computer hacking and misuse • receiving stolen property • wilful damage. Stealing There are two main elements of the offence of stealing: (a) the thing is capable of being stolen — the property must belong to another person and be able to be moved (b) the thing is taken dishonestly or ‘fraudulently’. This happens if the person intends to take the thing away from its owner permanently, intends to use it in such a way that it cannot be returned in its original condition and, if the thing stolen is money, intends to use it for the person’s own purposes.

ACTIVITY 28 i (Individually or in pairs)

Is it possible to be charged with stealing for doing the following things? EXAMPLE A child takes property that was owned by a person who is now dead. ANSWER The property will belong to the person who is entitled to the thing under the dead person’s will. The child can be charged with stealing the property of that person. 1. Taking rubbish from a rubbish bin outside a 4. Keeping extra cash the ATM gives you person’s house 5. ‘Borrowing’ money from your parents without 2. Borrowing a friend’s computer and refusing to telling them return it 6. Burning a friend’s T-shirt after an argument 3. Not returning library books

The Criminal Code recognises that some kinds of stealing are more serious than others. So, for example, the following circumstances make stealing more serious: • stealing directly from another person’s body • stealing goods worth more than $1000 from a house • stealing goods from a house, accompanied by actual or threatened violence • stealing from a broken-down vehicle • stealing a vehicle • looting, for example, robbing shops of their goods which occurred during fl ooding in Townsville in early 1998 • stealing a fi rearm or ammunition.

HOT SPOT

Explain why each of these circumstances makes the stealing more serious. Do you agree that these circumstances should make the offence of stealing more serious? Why or why not?

CHAPTER 5 Criminal law 179 Robbery The offence of robbery is committed when a person steals anything and, immediately before or after the time of stealing, uses or threatens violence to any person or property so as to get the thing or overcome resistance to it being stolen.

ACTIVITY 29 i (Individually or in pairs)

Do the following situations fit the definition of robbery? Each takes place in the course of a thief holding up a bank. EXAMPLE A thief takes a customer hostage in order to persuade the bank manager to open the safe. ANSWER The thief is guilty of robbery. The thief has threatened violence to the hostage to get the safe open to effect a robbery. 1. The thief threatens to kill anyone who tries to leave. 2. The thief brushes past a teller on the way out. 3. The thief shoots a teller who tries to tackle him. 4. The thief tells terrifi ed customers he has a pistol beneath his jumper. 5. The thief tells terrifi ed customers he has a pistol beneath his jumper. In fact it is a water pistol. 6. The day before the theft, the thief telephones the bank, threatening to blow it up and rob it.

Burglary Section 419 states that a person who is inside another person’s house without their consent, intending to commit a serious offence, commits the crime of burglary. The following circumstances make burglary more serious: • the offence is committed at night • the offender uses or threatens violence • the offender is or pretends to be armed • the offender is with at least one other person • the offender damages or threatens to damage any property.

HOT SPOT

(a) Why do each of these circumstances make the burglary more serious? (b) Do you agree that these circumstances should make the offence of burglary more serious? Why or why not?

Fraud Section 408C creates the offence of fraud. Fraud is committed if a person dishonestly: • uses property belonging to another • gets property from another

180 SECTION B Crime and society • gains a benefit for any person • causes a loss or injury to any person • makes off, knowing that payment on the spot is required, intending to avoid payment • forces a person to do something the person is legally entitled not to do • forces a person not to do something the person is legally entitled to do. An example of fraud would be a bank manager transferring money from customers’ accounts into the bank manager’s own account.

In 2003, Pauline Hanson and David Ettridge were released from prison after their appeal against their conviction for fraud offences was upheld by the Queensland Court of Appeal: R v Hanson; R v Ettridge [2003] QCA 488. Both appellants were prosecuted under s408C(1)(f) of the Criminal Code 1899 (Qld). That section makes it an offence to dishonestly induce the Elec- toral Commissioner to register ‘Pauline Hanson’s One Nation’ as a political party under the Electoral Act 1992 (Qld). That legislation requires an applicant for registration to set out the names of 500 members of the party who are electors. The appellants included a list of 500 names, and the party was regis- tered. The party was then paid more than $500 000 in public funding after its success in the 1998 Queensland State Election. Ms Hanson was also charged with two counts of dishonestly obtaining property from the Electoral Com- mission in relation to these payments. Following a lengthy jury trial, both appellants were convicted of fraud and sentenced to three years’ imprisonment. Ms Hanson also was convicted of the further charges of dishonestly obtaining property. Her punishment for these offences was to be served concurrently with her three-year jail term. However, about three months into Pauline Hanson’s and David Ettridge’s imprisonment, the Queensland Court of Appeal found that the appellants had been wrongly convicted, and ordered their release from prison. Internet fraud is now a significant and growing problem. There are many types of internet fraud, the most common being credit card fraud. Because so many people now use the internet to purchase products and services, and the use of credit cards has increased in recent years, there has been a tremendous increase in fraudulent purchases made with stolen credit cards. The most common type of credit card fraud is when an offender pur- chases an item online or by telephone, by using a credit card number that they have obtained illegally. Credit car numbers can be unlawfully obtained in many ways, such as using skimming machines to record credit card numbers via retail outlets, finding discarded copies of credit card vouchers in rubbish bins, or by hacking into computers where credit card numbers are stored. The detection of internet fraud is a challenge for the police because it is difficult to identify an offender and their location. The use of free, web-based, non-ISP (internet service provider) e-mail addresses (for example, @hotmail. com), combined with privacy law, means that a credit card thief can use the e-mail address and it cannot be traced back to the real owner. The true credit card owner may only become aware of an unauthorised transaction many days or weeks after it has occurred.

CHAPTER 5 Criminal law 181 Internet fraud, including credit card fraud, is investigated and regulated by a law enforcement body, depending on the location of the computer that the offender has used to commit the offence. If a person who resides in Queensland unlawfully uses an internet account belonging to a resident in Tasmania, then the Queensland Police Service is responsible for investigating the matter.

Computer hacking and misuse This offence was created in 1997. It is another example of the law being changed to reflect changes in society. In 1899, when the Criminal Code was originally written, no-one had heard of computers. (Internet credit card fraud will be discussed further in the contract law section of this text.)

Receiving stolen property A person who receives anything that has been stolen commits an offence if the person has reason to believe that the thing was stolen. The courts have found that actual knowledge is required, and that the prosecution must prove the accused person has this knowledge. Mere suspicion that goods are stolen is not sufficient.

ACTIVITY 30 i (Individually or in pairs)

Has Fred committed the offence of receiving stolen property in the following examples? EXAMPLE Fred knows the car he is buying has been stolen. ANSWER Fred has committed the offence of receiving stolen property. He has reason to believe the car he is buying has been stolen. It is not a mere suspicion. 1. Fred thinks the car he is buying has been stolen. 2. Because of the cheap price of the computer Fred buys at the local secondhand shop, he thinks of it as a ‘steal’. 3. The person Fred bought a CD player from has been convicted of stealing on ten previous occasions. 4. The person Fred buys a Walkman from refuses to tell Fred where he got it. 5. The modem Fred buys has the name of a person engraved on it. The name is not familiar to Fred, and is not the name of the person selling the modem to him.

Wilful damage A person who deliberately destroys or damages the property of another person commits a criminal offence. Examples of when this offence would be committed include a person drawing/writing graffiti on public property, and a person damaging a school. The maximum penalty for drawing/writing graffiti is imprisonment for five years (seven years if the material is obscene). The maximum penalty for dam- aging a school is imprisonment for seven years.

182 SECTION B Crime and society Law lukewarm over love graffi ti

Leah Moore

LOVELORN Brad Lyons wanted to re-ignite his luke- and saw the message she would be pleasantly warm romance. surprised. A Valentine’s Day card would not do, nor would An unmarked police car stopped Mr Lyons in a roses, romantic dinners or chocolates. nearby street, searched his car and found the empty The only thing that would cut it, he thought, was spray paint cans. a message sprayed in white paint on the road 150m The woman at the centre of the saga says she from his love’s house. thought the stunt was great and admits boasting to But the police did not share his views. a couple of friends at the gym. About 2.30am yesterday, Mr Lyons was served ‘It shocked me but it was great, even though I don’t with a notice to appear at Beenleigh court for ‘graf- like him getting into trouble,’ Ms Richards said. ‘He fi ting on Park Road, Slacks Creek’. is very romantic, he goes out of his way to please Earlier that morning he had declared his love to people but he’s never done anything like this before.’ his girlfriend of 11 months, Lindy Richards, in a ‘I’d do it all over again in the blink of an eyelid . painted message which read: ‘I y U LINDY’. . . I’d put that message on the ground every day of ‘When they pulled out the book to give me the the week if it would make her realise how much I notice I thought they were just having a go at me,’ love her.’ Mr Lyons said. When Mr Lyons bought the two cans of white ‘We’re all human and surely they could see the spray paint he also bought two cans of black, with romantic side of it.’ the intention of going back later and painting out Things had been a bit rough between the couple the message. recently and Mr Lyons had hoped that when Ms ‘I’m defi nitely not going back down there to do Richards came home from her night shift at 6am that now.’

FIGURE 5.17 Source: The Courier-Mail, 15 February 2003.

HOT SPOT

Should Brad Lyons have been charged over his romantic message to his girlfriend? Why or why not?

The more serious offence of arson, where persons deliberately burn down a building, is a separate offence in the Criminal Code. Section 461 of the Criminal Code Act 1899 defi nes arson as when a person ‘wilfully and unlawfully sets fi re to building or structure, vessel, fuel, culti- vated vegetable produce, mine, aircraft or motor vehicle’. Section 462 provides for attempted arson. Maximum penalties are imprisonment for life for arson and imprisonment for 14 years for attempted arson. The 2001 Christmas fi res in New South Wales and the 2003 fi res in Canberra caused loss of life and massive property destruction. In many fi res, teenagers have been charged with arson. Authorities suspect arson caused the bushfi res in Victoria. A teenager in Brisbane was convicted of arson that caused $1.1 million damage when he set fi re to a Brisbane toy store while it was full of staff and customers. Some schools have also been attacked.

CHAPTER 5 Criminal law 183 HOT SPOT

(a) What sentencing is appropriate for teenagers convicted of arson? Should teenagers be treated as adults and be subject to adult penalties? (b) In cases where a parent’s failure to adequately supervise a child contributes to an offence, the parent may be forced to pay compensation of up to $5025. Do you agree with this law? Explain why or why not. (c) The sentences for property offences were increased in 1997. What do these changes indicate are most likely the views of Government and the majority of people in society in regard to property offences?

Rapid technological advancement has provided opportunities for the com- mission of new property offences. Property is not only defi ned as real property (e.g. houses and land), and personal property (e.g. cars) but also as intellectual property, that is, intangible property rights such as copyright on the products of intellectual activity, for example, music, a video clip, a fi lm. Crime on the internet is becoming a signifi cant problem throughout the world causing huge costs to those affected, for example, internet banking fraud, music, video and fi lm piracy. Read the following news item on fi lm piracy.

No one’s above suspicion in fi lm piracy

Michaela Boland

NO mobile phones, fi ve security guards and body — or theft, as the president of the Motion Picture scanners — just to get into a fi lm preview. That’s the Distributors Association, Sunder Kimitrai, prefers to price of trying to stop the scourge of piracy in the call it — threatens to unravel their business. movie industry. Roadshow’s Ian Sands estimates piracy costs the At the Australian International Movie Convention local fi lm industry (including video distributors and on Queensland’s Gold Coast on Friday, distribution retailers) between $150 million and $200 million company Roadshow treated the 890 delegates — a year, but ‘it’s very hard to gauge’. ‘Growth has mostly cinema exhibitors — to a glimpse of unseen doubled in the past 12 months, we’re now losing 8 footage from the forthcoming Lord of the Rings: The per cent of our business to piracy,’ he said. Return of the King. Mike Ellis, regional director of the Motion Picture But Roadshow was so determined to protect Association’s Asian anti-piracy operations, said the fi lm from unauthorised distribution it barred Australia had a long way to go. mobiles and other recording equipment. His organisation is charged with protecting the Filmmakers and distributors fear phonegenerated properties of the Hollywood studios in Asia. video footage will end up on the internet and Despite rife pirating operations throughout the destroy the surprise factor in marketing. They also region, the MPA has identifi ed Australia as its new want to ensure control over the fi lm before release. battleground and will establish an offi ce here in Independent cinema owners, managers for the big October. chains and fi lm distributors have been uncharacter- ‘If we don’t stop [piracy] here Australia is going to istically united by their belief that this sort of piracy dwarf other countries,’ he said.

FIGURE 5.18 Our legal system and the law in other countries are fi nding it extremely diffi cult to prevent stealing of intellectual property — fi lms, music, et cetera. Source: The Australian Financial Review, 16–17 August 2003.

184 SECTION B Crime and society ACTIVITY 31 k (Individually or in pairs)

1. Describe the two elements that must be proved in 3. Distinguish between stealing, robbery and burglary. a charge of stealing. Rate the offences according to their seriousness. 2. Provide two examples of when the law regards 4. Apart from the offences mentioned in question 3, stealing as being more serious. name and describe two other property offences.

IN BRIEF

1. There are several possible offences in relation to property. 2. Several elements must be proven for a person to be convicted of a property-related offence. 3. Property offences protect the right of each member of society to own property.

Driving offences UNDERSTANDINGS

By the end of this section, you should be able to explain: • which offences exist in relation to driving • what ‘drink driving’ is • the demerit points system that applies to minor traffic infringements • your obligations if you are involved in an accident.

Dangerous operation of a vehicle The offence of dangerous operation of a vehicle exists at three levels.

Level Maximum penalty

1. Dangerous operation of a 3 years’ imprisonment or vehicle without seriously $15 000 fi ne injuring another

2. Dangerous operation of 3 years’ imprisonment or a vehicle and affected $15 000 fi ne by liquor or previous conviction for dangerous operation of a vehicle

3. Dangerous operation of a 7 years vehicle causing death or 10 years (if affected by alcohol) serious injury 14 years (if affected by a high amount of alcohol)

FIGURE 5.19 The three levels of dangerous operation of a vehicle

CHAPTER 5 Criminal law 185 Driving is defi ned broadly, and can include when the motor vehicle has broken down and is being towed to a garage. It includes being in charge of a motor vehicle, that is, in possession of the keys for the vehicle, and in or near the vehicle. The offence of dangerous operation of a vehicle applies only to driving in a ‘public place’. A ‘public place’ is every place open to or used by the public as well as any fi eld, ground, park, reserve, garden, wharf, or jetty being used for a public purpose. ‘Vehicle’ is also defi ned broadly, and would include tractors, bobcats, boats and bicycles.

ACTIVITY 32 i c (Individually or in pairs)

Answer the following questions in complete (b) A racing car driver driving home from the sentences. race track at tremendous speed. 1. Could the following circumstances result in (c) A bulldozer operator driving a bulldozer and charges of ‘dangerous operation of a vehicle’? weaving through traffic. Explain why or why not. 2. In a short paragraph, describe circumstances (a) A racing car driver racing at tremendous where a person dangerously driving a motor speed on the race track. vehicle might face charges of manslaughter.

‘Dangerous operation of a vehicle’ is not defi ned in the Code. It is up to the jury to decide whether the operation of the vehicle was dangerous or not. In other words, it is a question of fact. The jury will consider various factors, including the location in which the vehicle was driven, the time of day, the speed at which it was driven, driving conditions at the time, and any other relevant factors.

Appeal to parents

A judge yesterday called on parents to have more Gilcrest’s passenger, who was also his friend, was control over the type of cars their teenage children badly injured. Gilcrest, now 20, pleaded guilty to drove. In the District Court in Brisbane, Judge Kerry dangerous driving causing grievous bodily harm, O’Brien was sentencing Adam Thomas Gilcrest, on October 15, 2001. Gilcrest was sentenced to a 12- the driver of a late model utility vehicle which month intensive correction order, fi ned $2500 and slammed into a power pole, in Creek Rd, Carina. disqualifi ed from driving for fi ve years.

FIGURE 5.20 Source: The Courier-Mail, 12 September 2003.

HOT SPOT

Should the law limit the type of motor vehicle that new drivers are permitted to drive in the same way that motor bikes are limited? Should certain types of vehicles be prohibited? This author enjoyed driving a Mazda RX7 sports car for many years before reluctantly selling it. The car was purchased for a 17-year-old boy completing Year 12. Only three months after the sale the car was involved in an accident and ‘written off’ by the insurers.

186 SECTION B Crime and society FIGURE 5.21 ‘Dangerous operation of a vehicle’?

R v Wilde ex parte AG (Qld) [2002] QCA 501 An example of ‘dangerous operation of a vehicle’ involved the hit and run death of promising young triathlete Luke Harrop in 2002. Harrop was struck and killed by a vehicle driven by Wilde. After the accident, Wilde got out of her car, inspected the body, and then drove away to nearby markets to shop. Police eventually tracked her down and she was charged with dangerous driving causing death. Evidence was presented at sentence that Wilde had been disqualifi ed from driving at the time of this accident. She had a lengthy history of drug abuse and driving offences. She was convicted in this case of dangerous driving causing death. Her original sentence was less than three years’ imprisonment, but was increased to fi ve years on appeal, with a recom- mendation for early parole after three years.

HOT SPOT

What do you believe is an appropriate sentence in this case? Should the offence of manslaughter be applied? Research these offences to distinguish them.

ACTIVITY 33 i (Individually or in pairs)

If you were on the jury, would you consider the following circumstances as dangerous operation of a vehicle? Give reasons. 1. The accused tried to overtake on a narrow, bending road. The car crashed into a power pole. 2. The accused was driving at 100 km/h in a 60 km/h zone. 3. The accused was driving at 100 km/h in a 60 km/h zone. He was late for work. 4. The accused was driving at 110 km/h in a 60 km/h zone. She thought she was going into labour. 5. The accused was driving at 110 km/h in a 70 km/h zone. She thought she was going into labour. She killed a pedestrian. 6. The accused was driving down a main city street at 80 km/h.

CHAPTER 5 Criminal law 187 7. The accused was driving down a main city street at 80 km/h. It was 3.00 a.m. 8. The accused was speeding down the freeway. He kept changing lanes, and tailgating others. He had had a bad day at work. 9. The accused was travelling at 70 km/h on a freeway with a maximum speed limit of 100 km/h. 10. The accused changed lanes without indicating. The driver of a nearby vehicle was injured when the vehicles collided. 11. The driver fell asleep at the wheel. The car crashed into a cyclist, killing the cyclist instantly. 12. The accused was unlicensed and had little driving experience. She became anxious in traffi c and veered onto the wrong side of the road, colliding with another vehicle.

HOT SPOT

(a) Do you think that ‘dangerous operation of a vehicle’ should be a criminal offence? Why or why not? (b) How does it fit within the concept of a crime, and why certain actions are crimes, which we discussed at the start of this unit?

If a person is involved in a car accident, the person must give her or his name and address, and details of the person’s vehicle to others involved, including those who were injured, other drivers, and those whose property was damaged. The maximum penalty for failing to do this is a fi ne of $1500 or one year’s imprisonment if a person is killed or injured, otherwise it is $750 or six months’ imprisonment. Police must be called if damage to any vehicle involved in an accident (or the total damage done to vehicles involved in an accident) amounts to more than $1500. A person who shows ‘callous disregard’ for the needs of injured people will be imprisoned. This is an example of a moral obligation having been made a legal obligation. However, remember that what you may think is ‘moral’ and what is the ‘law’ are often different. A person involved in an accident must give whatever medical assistance they can to any person injured by the acci- dent, until medical experts arrive. The Transport Operations (Road Use Management) Act, 1995 (Qld) creates a lesser offence of driving without due care and attention.

Drink driving This offence is created by the above Act. There are several elements of the offence: (a) A person is driving a motor vehicle or vessel, attempting to put one in motion, or ‘in charge’ of one. Most people think that ‘drink driving’ is when a person is driving while ‘under the infl uence’ of alcohol. However, as you can see it is broader than this. It includes the situation where a person is sleeping in the driver’s seat while under the infl uence, although the person does not intend to drive. This person was held to be ‘in charge’ of the vehicle while under the infl uence: Newburn v McCann [1970] QWN 17.

188 SECTION B Crime and society (b) A person is ‘under the influence’. The meaning of this depends on the characteristics of the driver or person in charge. If the person is under 25, holds a provisional licence or a learner’s permit, or does not hold a licence at all, that person is under the influence if the amount of alcohol in his or her bloodstream (called ‘blood alcohol content’ or BAC) is more than zero. A person doing this commits a criminal offence. The maximum penalty is a fine of $1000 and imprisonment for three months. The penalty may be higher if the person has a large amount of alcohol in their bloodstream. (You will be aware that a person may apply for a learner’s permit upon reaching the age of 16 years, and can apply for a provisional licence upon turning 17 years of age.) If the person holds an open licence, the person is under the influence if their BAC is at least 0.05 per cent (this means that there is at least 50 mg of alcohol per 100 mL of blood). The maximum penalty is a fine of $1000 and imprisonment for three months. The penalty may be higher if there is a large amount of alcohol in the person’s bloodstream. Usually a drink driver is caught at a random breath testing site. Police could also observe a person driving in an erratic manner. Also, the driver may have been involved in an accident. Police will ask drivers to blow into a bag (known as a breathalyser). It is a criminal offence, without very good reason, to refuse or otherwise fail to provide the breath specimen when asked by police. This is regardless of whether the person is in fact over the legal limit or not. If the breathalyser shows that the person is under the limit, the person will be asked to drive away. If it shows that the person is over the limit, the person will be asked to go with the police officer to the nearest police station where the person will undergo a further breath test, or a blood test. This test must be given within two hours of the person driving. As soon as this test is given, the person administering the test (either a medical practitioner or authorised police officer) will sign a certificate stating the percentage of alcohol in the person’s bloodstream, and the date and time when the analysis is made. A copy of this certificate must be given to the person whose breath has been analysed. The certificate is the evidence used in court to decide whether the driver committed a criminal offence.

FIGURE 5.22 Breathalyser testing

CHAPTER 5 Criminal law 189 Drink driving charges are summary offences heard in the Magistrates summary offence less serious offence; usually not punishable Court. Generally, these charges are undefended. This means that the evidence by a jail term against the accused is so clearcut that the accused accepts the charge and pleads ‘guilty’. Some defendants have disputed the breathalyser’s results or argued that the test was administered incorrectly. The licence of a person found to be driving while under the infl uence can be cancelled by police for a 24-hour period. Note also that evidence of drink driving can be used for a separate charge of dangerous driving.

FIGURE 5.23 ‘Drink driving’?

Julian Korpela obviously did not know about the drink-driving law, as the news item below clearly shows.

Drunk cyclist is banned from driving

by Cameron Atfi eld

Julian Korpela has never had a driver’s licence but .163 — more than three times the legal limit for he has already been disqualifi ed from holding one. drivers. He had no idea he would be breaking the law when Korpela pleaded guilty and told the court he he jumped on his bicycle one night after drinking. regretted his actions, but was not aware he was As he pedalled along busy Gympie Rd at Lawnton breaking the law. police noticed there was something erratic about ‘I had no idea you could get caught riding drunk the way he handled his bike. on a bike,’ he said. ‘It was obvious he was intoxicated while riding’, Magistrate Michael Halliday fi ned Korpela $1000 police prosecutor Senior-Constable Dean Roper for riding drunk, and disqualifi ed him from holding told Petrie Magistrates Court yesterday. a licence for 10 months. ‘He had trouble stopping and nearly fell off.’ He also imposed a $100 fi ne for the charge Korpela, 18, was riding without lights and wore of obstructing police, but no conviction was dark clothing, so it was diffi cult for motorists to see recorded. him, Sen-Constable Roper said. ‘Riding a bike under the infl uence of liquor is just He said Korpela then became aggressive towards as dangerous to other motorists and to yourself as police before he recorded a blood alcohol level of driving a motor vehicle’, Mr Halliday said.

FIGURE 5.24 Source: The Courier-Mail, 28 February 2006.

190 SECTION B Crime and society ACTIVITY 34 k e (Individually)

Read the news item carefully, then answer the 4. What punishment was Korpela given? questions that follow in clear and complete 5 Do you consider the scope of the current drink- sentences. driving law: 1. Describe the charges against Korpela. (a) to be appropriate and acceptable for 2. Explain why Korpela’s case was heard in the society? Support your view. Magistrate’s Court. (b) has been applied fairly and reasonably in 3 Did a trial occur in this case? Why or why not? Korpela’s case? Justify your view.

HOT SPOT

A person can be charged with ‘drink driving’ if they are over the legal alcohol limit and on rollerblades, a skateboard, or riding a horse. Do you agree with the application of the ‘drink driving’ law in these circumstances?

There has been a particular problem, in the area of drink driving, of repeat offenders. As a result, the law provides for increased penalties for a person convicted of drink driving on more than one occasion. For example, a person convicted of drink driving — where the person has at least two convictions for other driving offences such as drink driving or dangerous operation of a vehicle within the last fi ve years — will (must) be sent to prison as part of the pun- ishment. Less serious offenders can be ordered to undergo training programs, driving courses, or education programs on the dangers of drink driving.

40 Front seat belts (1969) 0.05 BAC 30 (1982) RBT 0.10 0.08 (1988) Qld Road BAC BAC Safety 20 (1968) (1974) Strategy (1993) RID 10 scheme (1986) Speed Fatalities per 100 000 people Fatalities cameras (1997) 0 67 69 71 73 75 77 79 81 83 85 87 89 91 93 95 97 68 70 72 74 76 78 80 82 84 86 88 90 92 94 96 98 Year FIGURE 5.25 Changes in the road toll and in driving laws HOT SPOT

(a) Should those with a history of drink driving offences be sent to jail? Why or why not? (b) Is there a better solution to the problem of repeat offenders? Suggest alternative solutions. (c) Do you agree with compulsory breath testing of any person driving a vehicle that is involved in an accident? Why or why not?

CHAPTER 5 Criminal law 191 Make 21 the legal drinking age, says expert

A drugs and alcohol expert says road deaths could The push comes as alcohol-related deaths among be reduced in Queensland if the legal drinking age teenagers reach alarming levels in Australia. went back to 21. Figures reveal one young Australian dies from The legal drinking age was lowered in 1974 from underage drinking every week and 60 more are hos- 21 to 18. pitalised because of alcohol. Professor Wayne Hall of the University of Commonwealth Government statistics also show Queensland, who has researched the effects of one in 10 teens drink at harmful levels with a third drinking on young people, said that where the legal engaging in high-risk behaviour at least once a drinking age in the US was raised to 21 in the 1980s, month after binge drinking. road fatalities fell. AMA vice-president Dr Choong-Siew Yong said ‘I think it’s a possibility that we should seriously raising the legal drinking age was defi nitely worth consider and one we should be debating’, he said. considering, but that it wouldn’t work on its own. ‘Alcohol is one of the main causes of road deaths ‘If you can delay the take-up of most drugs you among 17 to 25-year-olds in Australia and such a will fi nd there’s a reduction in some of the associ- move could help reduce the road carnage.’ His call is supported by the Australian Medical Association ated problems’, he said. and Drug Free Australia. ‘We also have a culture where there aren’t a lot Drug Free Australia spokeswoman Wendy of role models for young adolescents about how to Herbert said raising the drinking age back up to 21 responsibly use alcohol.’ in the US reduced traffi c fatalities in 18 to 20-year- ‘Simply raising the drinking age by itself won’t be olds by 13 per cent. as effective as trying to also change attitudes and She added: ‘Alcohol is the main gateway drug. the use of alcohol generally.’ When people delay the start of alcohol use to 21 Leading child psychologist Michael Carr-Gregg they seldom develop a dependency to alcohol or said research shows the younger you drink the more any other drug.’ harm you will come to.

FIGURE 5.26 Source: Sunday Mail, 7 January 2007.

ACTIVITY 35 k e

Read the news item, then answer the following 3. Identify other stakeholders who support questions in clear sentences. Professor’s Hall’s stance and explain their 1. What was the legal drinking age in 1974? viewpoints. 4. 2. Professor Wayne Hall of the University of Do you consider that raising the drinking age Queensland suggests that road deaths could be would have the effect of reducing Queensland’s reduced if the legal drinking age was changed alcohol-related deaths? Present your view in back to 21 years. What evidence is presented that logical paragraphs of approximately 100–200 supports his view? words.

Since November 2002, police have been enforcing new anti-hooning laws designed to improve safety on the roads and to limit undue noise in the com- munity. Police have been given the power under s53 of the Police Powers and Responsibilities Amendment Act 2002 (Qld) to confi scate vehicles where offenders engaged in illegal drag racing or dangerous driving, or where car stereo noise was excessive. After a fi rst offence, a car can be confi scated

192 SECTION B Crime and society for 48 hours. After a second offence, a vehicle can be confi scated for up to three months. After a third or subsequent offence, it can be confi scated indefi nitely. Read the following extract from Hansard from the Queensland Parliament session on 27 March 2003. Mr Mickel, the current member for Logan asks Mr McGrady, the Minister for Police and Corrective Services, about the effective- ness of the new laws. Remember that we have previously read a news item on these new laws at the start of this section of study.

27 Mar 2003 Questions Without Notice 927

Mr MICKEL: I direct my question to the honourable Minister for Police and Corrective Services. I refer to the Beattie government’s new tough-on-hoon laws introduced last year with the enthusiastic support of all members, particularly those of us in Logan City, and I ask: how effective have these anti-hoon laws been in the Logan area? Mr McGRADY: I thank the member for Logan for the question; at least it has brought some dignity back to question time. I am absolutely delighted with the results of the anti-hooning legislation. Recently I attended a public meeting in Ferny Grove where people told us how successful the legislation was. Before that we went to Beachmere to the annual general meeting of the community watch. Mrs Carryn Sullivan: A great success. Mr McGRADY: It was a great success. The minutes of the previous annual meeting contained complaints about hoons all around the place. So we received a standing ovation for the legislation that we brought in. Coming back to the question from the member for Logan, I am pleased to report that in the Logan police district 25 cars have been confi scated since the laws were enacted in November last year. In the south-east region, of which the Logan district forms a part, a total of 91 vehicles have been confi scated. A few weeks ago the Commissioner and I took the opportunity to go out with the newly formed squad whose role it is to get these hoons off the roads of Queensland. Those offi cers thanked me for the legislation, because at long last they now have the power to confi scate vehicles from those people trying to take over the roads of Queensland. The good news is that, since this legislation came into being, well over 300 cars have been confi scated, but the better news is that only two have come back for seconds. Only two have come back and had their cars confi scated a second time around. As they understand and appreciate, the third time the chances are the cars have gone. I know that the people of Logan city and the surrounding area are delighted with this legislation. The fact that we have confi scated well over 300 cars and only two have come back for seconds proves, I think, that the legislation is working. Judging by the comments from the Police Service, they appreciate this measure. We will see a lot more of this action, unless of course the hoons learn their lesson and get the message loud and clear that they will not take over the roads of Queensland and that if they try, they will simply lose their cars.

FIGURE 5.27 The effectiveness of Queensland’s new tough anti-hooning laws Source: Hansard, 27 March 2003, p. 927.

CHAPTER 5 Criminal law 193 HOT SPOT

(a) What evidence is presented by Mr McGrady to support the conclusion that the anti-hooning laws are working? (b) What is your view on the Government’s approach?

Judge warns drag racers by Mark Oberhardt A BRISBANE judge said yesterday he almost despaired at fi nding an answer to the problem of drag racing and high-speed accidents involving young men. In an emotional District Court hearing in Brisbane yesterday, Judge John Robertson was sentencing a marijuana-affected driver who was ‘drag racing’ shortly before his car slid into a power pole killing his passenger and badly injuring himself. Andrew Robert Linz, 23, was sentenced to fi ve years’ jail with a recommen- dation for release after two years. Linz pleaded guilty to dangerous driving causing the death of John Douglas Williams, 18, while under the infl uence of an intoxicating substance. Judge Robertson said only a ‘hermit’ would not realise drag racing by young males was a major problem often seen in the courts. ‘We as a community have to do something. The message has to get out — if you drive at excessive speed while under the infl uence of alcohol or a drug and you kill or injure someone you are going to jail’, he said. ‘It is inex- plicable in this case young men were racing side by side down a public road with no regard for their own wellbeing or anyone else’s.’ Judge Robertson said it was clear Linz’s use of marijuana played a signifi - cant role in the accident but there were still people who denied the drug was a problem. In an unusual aside, Judge Robertson directly addressed Williams’s mother, Denise Lamperd, for her ‘well balanced and insightful’ victim impact statement. Outside court, Ms Lamperd repeated her call for motorists to think before driving after using alcohol or drugs. ‘Hopefully, you will never know the terrible feeling of losing a son. It will never go away’, she said. ‘But I am not the person to hold a grudge and I think today’s sentence was fair. I came here not wanting revenge but wanting justice.’ From the dock Linz also expressed deep regret at killing his close friend.

FIGURE 5.28 Source: The Courier-Mail, 29 November 2006.

A few years after the introduction of the anti-hooning laws, it appears that in some tragic instances, young drivers are not getting the message about responsible driving. Find out more about victim impact statements later in the discussion of sentencing and victims’ rights.

Offences detected by camera If a vehicle is caught speeding, or running a red light, by a camera, the owner of the vehicle will be sent a notice in relation to the offence. That person is

194 SECTION B Crime and society deemed to have committed the offence unless they supply the name and address of the person in charge of the vehicle at the time, unless they do not know it (for example, if the car was stolen). If the person who receives the notice pays the penalty within the appropriate period, the ‘offence’ is can- celled (that is, the person will not get a criminal record). However, the person will lose a certain number of demerit points, and will be fi ned.

HOT SPOT

Do you see any ‘loopholes’ in the above laws? If so, describe them.

Minor infringements The legislation includes a system of demerit points. Minor infringements result in a loss of points, and a fi ne. If a person loses a certain number of points, their licence can be suspended. A person with an open licence is allocated a ‘credit’ of 12 points. The licence of a person who loses that number of points within a three-year period will be affected. The person must then choose either to go onto a provisional licence for a year, or have his or her licence cancelled for three months. If a person with a provisional licence loses four points within a twelve-month period, the person’s licence will be cancelled. Following are some of the traffi c infringements for which a person will lose demerit points and be fi ned:

Demerit points Traffic infringement

8 Driving at least 41 km/h over the speed limit, $700 fi ne and 6-month licence suspension

6 Driving 31–40 km/h over the speed limit, $350 fi ne

4 Driving between 21–30 km/h over the speed limit, $250 fi ne

3 Failure to stop at a red traffi c light, disobeying stop and give way signs, failing to give way, failing to wear seat belt, $225 fi n e

1 Following too closely, $175 fi ne

FIGURE 5.29 Demerit points for traffi c infringements

The Queensland Transport Minister announced the new speeding penalties just before Easter 2003. He said that he was confi dent the new fi nes would help to make speeding unacceptable to all Queenslanders. ‘People understand that it is socially unacceptable, and in fact, irresponsible, for them to drink and drive,’ he said. ‘We need to encourage the community to adopt the same attitude to speeding on our roads.’ This is an example of government making laws in order to encourage changes in people’s attitudes and behaviour, as well as government responding to the current death road toll and society’s need to be safe on the roads. Unfortunately, the Queensland Government continues to fi nd it diffi cult to change people’s attitudes and behaviours on the road, as a recent government media release indicates.

CHAPTER 5 Criminal law 195 New initiatives to target road toll

Premier Peter Beattie today announced new measures to The television advertisement is built around the story further combat the state’s road toll, including increased of Rockhampton resident Nick Benjamin, who became fi nes and penalties as well as a regional launch of a new a paraplegic after crashing his car when he failed to drink driving public awareness campaign. properly negotiate a bend while driving after having Mr Beattie said the measures included increased too many drinks. penalties designed to reduce inattention, aggres- Between the start of August 2005 and the end of July sive driving and distraction on the state’s roads and a last year, 83 people died as a result of crashes involving statewide ‘reality-check’ drink driving campaign. drink driving. Mr Beattie said increased penalties that would come Minister for Transport and Main Roads Paul Lucas into effect from March 1, covered offences like tail- said the television advertisements would be comple- gating, failing to stop at a red light and driving with a mented by regional radio and outdoor advertisements DVD or TV visible to the driver. around the state. ‘Over the past 72 hours there have been some horrifi c ‘In the advertisement, Nick speaks frankly about what accidents on our roads including a smash just south of he did and the consequences and I thank him for putting Ingham that claimed four lives,’ Mr Beattie said. himself on the line and telling his story,’ Mr Lucas said. ‘While the cause of that particular crash is not known ‘Not only will Nick’s message remind people of the it is clear that the simple mistakes people are making very real and very serious consequences of drink on our roads every day are costing Queenslanders their driving, the radio advertisements will remind people lives.’ that police will be watching — wherever they live.’ ‘We [are] constantly fi ghting to reduce the road toll ‘This year we have more police and more unmarked and hopefully these new initiatives can help.’ patrols than ever before, and these offi cers will conduct ‘Last year we introduced a number of new measures an estimated 2.8 million random breath tests.’ including double demerit point penalties for repeat ‘The new advertising campaign will reinforce the speedsters and immediate licence suspensions for serial message that drink driving has serious consequences and high-end drink drivers.’ and that we won’t tolerate it.’ ‘The new penalties being announced today are the Mr Lucas said the increased penalties should remind next step of measures designed to deter people from the drivers and passengers that the road rules were in place silly and dangerous behaviour that puts lives at risk.’ to keep people safe. Mr Beattie said the key changes to around 120 He said the statistics spoke for themselves. In 2005 offences included: there were: • Failing to stop at a red traffi c light — from $135 fi ne • inattention — 27 fatalities, 991 hospitalisations and and three demerit points to $225 and three demerit more than 55 300 infringement notices issued points • driver distraction — 18 fatalities, 426 hospitalisations • Driver failing to keep a safe distance (follow too and more than 2500 infringement notices issued close) — from $30 and one demerit point to $175 • dangerous driving (tailgating) — 1 fatality, 221 hospi- and one demerit point talisations and 2395 infringement notices issued. • Driving with a TV/DVD operating and screen visible ‘Tailgating is the sort of offence that can lead to to the driver — from $60 and one demerit point to aggressive behaviour on our roads and there’s abso- $100 and three demerit points lutely no reason for it.’ • Fail to give way to police/emergency vehicle — from ‘The State Government has implemented a range of $105 and no demerit points to $175 and three demerit measures designed to improve road safety and we’re points. funding our roads at record levels.’ Mr Beattie said the State Government was also con- ‘But road safety also comes down to the individual tinuing its education campaign to warn drivers to take choices people make every time they get in their car.’ better care on Queensland roads. ‘I urge Queenslanders — drivers and passengers alike ‘Last night (Feb 11) Queensland Transport started a — to take care and responsibility on our roads.’ new series of advertisements aimed at driving home Mr Lucas said Queensland Transport would shortly the stark consequences of drink driving,’ Mr Beattie begin advertising the new penalties and sanctions said. around the state.

FIGURE 5.30 Source: Media release, 12 February 2007.

196 SECTION B Crime and society Presumably there will be stakeholders who disagree with the tougher pen- alties imposed by the Beattie Government if the news item below, which describes the reaction to the 2003 penalty increase, is anything to go by.

Penalties ‘too tough’

TOUGHER penalties for speeding were motivated fi nes as we are. We should catch up” — it is nothing by government greed, the National Motorists more than that really,’ Mr Goelder said. Association Australia said yesterday. Drivers will be fi ned $100 and lose a demerit NMAA Queensland spokesman Gavin Goelder point for driving 12km/h over the speed limit. said the new penalties, which come into force on Those caught driving 41km/h above the limit will Thursday, were a revenue-raising stunt. lose their licence for six months. They will also be The State Government had placed too much fi ned $700 and lose eight demerit points. emphasis on speeding at the expense of driver edu- Mr Goelder said this penalty was tougher than cation, he said. those for more serious crimes. ‘Even assault crimes ‘It is just a bit of revenue envy. They’ve looked at don’t get $700 fi nes in a lot of cases,’ he said. New South Wales and Victoria and gone “Oh gee, The NMAA said speeding caused only 5 per cent they’re getting twice as much for their speeding of motor vehicle crashes in Queensland.

FIGURE 5.31 Stakeholders’ views of the new speeding penalties Source: The Courier-Mail, 14 April 2003.

HOT SPOT

By referring to the changes to driving offences announced in the 2007 Queensland Government media releases, consider the following. (a) What is your view of the new penalties: (i) as a passenger? (ii) as a pedestrian? (iii) as a future road user? (b) What are the likely impacts of these penalties on society in general?

ACTIVITY 36 k (Individually or in pairs)

1. Describe the three levels of dangerous operation 4. Explain how a person who is sleeping in the back of a vehicle. of a car could be charged with ‘drink driving’. 2. If a person is convicted of dangerous operation 5. Offences detected by camera, for example, of a vehicle while affected by alcohol, what is the running a red light, are ‘cancelled’ if the person maximum penalty that can be given? pays the fi ne within the required time period. 3. Describe the two elements of drink driving. Explain what is meant by ‘cancelled’.

New driver licensing system The Queensland Government introduced a new graduated licensing system on 1 July 2007 to reduce fatalities on the roads, particularly among young motor- ists. In 2005, 13 per cent of drivers were young people, but young drivers were involved in 32 per cent of the road toll.

CHAPTER 5 Criminal law 197 Key changes include: • lowering the minimum learner age to 16 and extending the licence period to 12 months • gaining 100 hours of certifi ed, supervised driving experience for learners under 25-years-old • restricting all mobile phone use • compulsory L plates and P plates • introduction of a two-phased P1 and P2 provisional licence system • peer passenger restrictions for P1 holders driving at night • high-powered vehicle restrictions for P plate drivers under 25 • a hazard perception test after 12 months on a P1 licence to progress to P2.

IN BRIEF

1. The law contains offences such as dangerous operation of a vehicle, drink driving, and driving without due care and attention, to try to make driving as safe as possible. 2. Drink driving laws apply to a wide number of situations, including where a person is not actually driving. 3. A demerit points system applies to less serious driving infringements.

REVIEW ACTIVITY i (In small groups)

Discuss what driving offences may have been committed in the example below. Include a discussion of any demerit points that may apply. Amanda and Luke are bored one night. Amanda’s parents have gone away to the country for the weekend, leaving Amanda to look after the house and write a school assignment. Late on the Saturday night, Amanda decides to take her mother’s car for a drive. Amanda is 16. She phones her mate Luke, asking him to come with her. Luke has just got his licence. After they have been driving for a while, Amanda and Luke decide to stop at the local Liquor Barn where they buy some alcohol. Amanda and Luke drink some of it while they are driving around the streets. A good song comes on the radio, and Amanda turns the music up and starts speeding, travelling at 20 km/h over the speed limit. She is laughing and singing loudly, and is not paying attention to where she is going. Suddenly a car pulls out from a side street, and Amanda brakes hard. She manages to avoid the other car, but crashes into the fence of a nearby house. Terrified, Amanda speeds away. She then asks Luke to take the wheel, because she is afraid she will do further damage. Luke agrees. They decide to drive to a rave party on the Gold Coast. On the way there, Luke tailgates a few people, and delights in abusing people travelling at the speed limit. While on the way to the rave, both of them get sleepy due to the effects of the alcohol, and fall asleep. Several hours later they are woken by police, who have tracked them down after the person whose fence they crashed into reported the accident. The police ask Luke, who is still in the driver’s seat, to provide a breath specimen. Luke is terrified and runs away. He is an asthmatic.

198 SECTION B Crime and society Anti-terrorism laws In November 2005, the Federal Government introduced important anti- terrorism laws in Australia. The laws as passed were not as strongly worded as previous drafts, due to some debate in the Parliament about a proper balance between the need to maintain national security and the need to pre- serve important civil liberties. Aspects of the Anti-Terrorism Act (No 2) (2005) (Cth) (ATA) are summarised below. (This Act amends the Criminal Code 1995 (Cth).)

Definition of terrorist organisation The Criminal Code 1995 (Cth) allows the Governor-General to declare an organisation to be a terrorist organisation. This means the organisation is banned in Australia, so, for example, it would not be able to conduct activi- ties here, hold property or have members. Section 10 of the ATA now makes it clear that before the Governor-General can declare an organisation to be terrorist, he/she must be satisfied on reasonable grounds that the organ- isation is directly or indirectly engaged in preparing or planning a terrorist act, or supports the doing of such an act. Previously, there were no guidelines for the exercise of the Governor-General’s power to declare an organisation to be terrorist in nature.

Definition of a terrorist act A terrorist action is an action or threat of action that falls within the first list below, and not the second list, done or threatened with the intention of advancing a political, religious or ideological cause, done or threatened intending to coerce a Federal or State government (or government of a foreign country), or intending to intimidate the public or a section of the public. • First list: the action or threat of action causes serious physical harm to a person; causes serious damage to property; endangers a person’s life (other than the perpetrator); creates a serious risk to the health or safety of members of the public, or seriously interferes with or disrupts an electronic system (including information systems, telecommunication systems, finan- cial systems, transport, utilities and essential services). • Second list: (anything on this list is not a terrorist act): advocacy, protest, dissent or industrial action where it is not intended to cause serious harm to a person, endanger the life of a person (other than the perpetrator); or create a serious risk to the health and safety of members of the public. A person who commits a ‘terrorist act’ as defined is liable to life imprison- ment. It does not matter whether the terrorist conduct and its results occur in Australia or overseas (section 101.1 of the Criminal Code (1995) (Cth)).

Offence of financing a terrorist A new offence is created of financing a terrorist. Schedule 3 of the ATA intro- duces new s103 to the Criminal Code 1995 (Cth), making it an offence to intentionally: • make funds available to another person • collect funds for another person

CHAPTER 5 Criminal law 199 • in circumstances where the accused is reckless (i.e. the person does not care one way or the other) as to whether the other person will use the funds to facilitate or engage in a terrorist act. It is irrelevant whether or not a terrorist act occurs, or whether the funds will be used to engage in a specific terrorist act or not. A breach of this new section is punishable by maximum life imprisonment. (The definition of ‘ter- rorist act’ appears above.)

Control orders Control orders are a controversial aspect of the new regime. They allow various restrictions on a person’s freedom, including: • a prohibition or restriction on the person being at specified areas or places • a prohibition or restriction on the person leaving Australia • a requirement that the person remain at specified premises during certain times of day or certain days • a requirement that the person wear a tracking device • a prohibition or restriction on the person speaking or being with specified individuals • a prohibition on the person accessing telephones, the internet or other technology • a prohibition on the person possessing specified articles • a prohibition on the person carrying out certain activities • a requirement that the person report to certain persons at specified times or places • a requirement that the person allow themselves to be photographed and fingerprinted • a requirement that the person participate in counselling or education. Clearly, these represent potentially significant restrictions on how a person conducts their lives. A control order is only appropriate in relation to a person when the applicant (a senior member of the Australian Federal Police (AFP)) reasonably believes: (a) the order would substantially assist in preventing a terrorist act; or (b) on reasonable grounds that the person has provided training to, or received training from, a listed terrorist organisation. If the senior member of the AFP believes this, they must seek the Attorney- General’s written consent to make the application. If this consent is given, the AFP must then apply to a court for the control order. The court must be satis- fied on the balance of probabilities that the order would assist in preventing a terrorist act, or that the person has provided training to or received training from a listed organisation, and that the control order sought is reasonably necessary to protect the public from a terrorist act. Control orders apply for a maximum period of 12 months and can be extended on further application. This part of the legislation has a ‘sunset clause’ and expires 10 years after it was first enacted. Jack Thomas, currently under a control order, is presently challenging the validity of this order. A decision from the High Court about this is expected shortly. Mr Thomas’s recent acquittal on appeal of his original conviction for terrorism offences was discussed in chapter 3.

200 SECTION B Crime and society Preventative detention The Act also provides for a limited preventative detention regime. A member of the AFP may apply for a preventative detention order in relation to a person if: • there are reasonable grounds to suspect the person will engage in an immi- nent terrorist act (that is, within the next 14 days); or • the person possesses a thing connected with the preparation for, or engage- ment of a person in a terrorist act; or • the person has done an act in preparation or planning of a terrorist act where making the order would help prevent the terrorist act occurring, and detaining the person for the period sought is reasonably necessary to prevent the terrorist act from occurring. The regime also applies if a terrorist act has occurred within the past 28 days, where it is necessary to detain the person to preserve evidence relating to the terrorist act. Preventative detention orders can be made by current or former judges. The maximum period for which a person can be detained under this regime is 48 hours. A doctor working on the Gold Coast was arrested in July 2007 when trying to board a flight from Brisbane to India. He was detained for questioning for more than a week under this regime. His detention followed a failed terrorist attack in London. He apparently knew some of those involved in the London attack. Strict rules apply to a person detained under this regime communi- cating with others. They can contact family members, or their employer or employees, but only to tell them they are safe and not able to be contacted for the time being. It is illegal for the person to disclose they are being detained, for how long they are being detained, or that they are being detained under a preventative detention order. The maximum penalty for a breach of this rule is stated in new section 105.41 of the Criminal Code 1995 (Cth) to be five years’ imprisonment. Any similar communication by the detained person’s lawyer attracts a similar maximum penalty. A police officer cannot ask the detained person questions, other than to establish their identity, and whether they are safe and well.

Sedition Pre-existing but little-used criminal laws dealing with sedition have been extended by the new regime. A seditious intention is defined to mean an intention to use force or violence to achieve any of the following: • bring the Queen into hatred or contempt • urge disobedience to the Constitution, the Government, or Parliament • urge another person to change, other than by lawful means, any matter established by law of the Commonwealth or • to promote feelings of ill-will or hostility between different groups so as to threaten the peace and order of the Commonwealth. It is also an offence to urge another to overthrow by force or violence the Constitution, the Government of the Commonwealth or State, or the lawful authority of the Government of the Commonwealth, punishable by a maximum of seven years’ jail (Schedule 7 of the ATA). A similar penalty applies to urging another person to engage in conduct to assist an organisa- tion or country at war with the Commonwealth (whether or not war has been declared). It is a defence if the person has acted in good faith to try to show

CHAPTER 5 Criminal law 201 that government offi cials have committed errors, or that legislation or the administration of justice is defective. A person is protected if merely urging in good faith changes to a law, policy or practice in Australia, or, by pointing out in good faith matters that are producing ill-will or hostility between different groups, trying to remove those matters.

HOT SPOT

Read the following news item, which reports on the release from prison of convicted terrorist, Jack Roche. Note that Jack Roche was convicted under the anti-terrorist laws that were in place prior to 2005.

Freed terrorist vows to avoid trouble

by Andrea Hayward

Convicted terrorist Jack Roche pledged to stay out of trouble after he served 4½ years for plotting with Al-Qaeda to bomb the Israeli embassy in Canberra. The 53-year-old British-born Muslim convert has served just half of the nine-year sentence handed to him after he pleaded guilty midway through his trial. Still sporting the long beard he wore before being jailed, the ginger-haired Roche walked out of Perth’s Casuarina prison at 8am. At his South Perth home, where he was met by his wife, he said: ‘I’m glad to be out’. When asked if he was still in touch with terrorists, Roche replied ‘no’ and said he was going to lead a peaceful life and ‘most defi nitely’ stay out of trouble. Under the terms of his parole, Roche will have to report regularly to the Australian Federal Police and his travel will be restricted. Police have refused to reveal other parole conditions but the AFP is expected to monitor his internet and telephone use. Roche’s trial was told he met Osama bin Laden and other key Al-Qaeda fi gures when he travelled to Afghanistan in March 2000, where he was instructed in the art of bomb-making. It was discussions he had then with bin Laden and his then-deputy Abu Halli al-Masri that resulted in a plan to target Israeli interests in Australia. WA’s Opposition says it is wrong Roche has only served half his prison sentence. But WA Attorney-General Jim McGinty said there would be close co- operation between the state and federal authorities to ensure Mr Roche was on the straight and narrow. ‘I think he should be heavily monitored out there in the community and any sign that he is reverting to form he should be dealt with severely,’ he said.

FIGURE 5.32 Source: The Courier-Mail, 18 May 2007.

The report indicates that Roche will have to regularly report to the Australian Federal Police under his parole conditions. In your view, should he be subject to more stringent conditions, equivalent to a control order? Justify your view.

202 SECTION B Crime and society Drug offences UNDERSTANDINGS

By the end of this section, you should be able to explain: • how the criminal law deals with those involved in drugs • police powers when dealing with those suspected of being involved in drugs.

Drug offences are contained in the Drugs Misuse Act 1986 (Qld). The serious- ness of the offence depends on the type of drug the offender is associated with. The Act creates two lists of drugs, called Schedule 1 drugs and Schedule 2 drugs. Schedule 1 drugs are: • speed • cocaine • heroin • PCP • ice • LSD. The Act also talks about ‘prescribed amounts’ of drugs. The prescribed amount for cocaine and heroin is 200 g, for LSD 50 g and for angel dust 0.4 mg. Schedule 2 contains hundreds of drugs. The most common, and their ‘pre- scribed amounts’, are cannabis (500 g or 100 plants), speed (2 g), methadone (2 g), codeine (10 g), morphine (2 g), ecstasy (2 g), and fantasy (2 g). The Drugs Misuse Act contains various offences in relation to drugs. The following list goes from the less serious to the most serious: • possession • producing • supplying • traffi cking. Under new laws introduced on 1 January 2006, all over-the-counter Schedule 2 medicines containing pseudoephedrine were reclassifi ed as ‘phar- macist only’ Schedule 3 medicines. Previously, they had been Schedule 2 or ‘pharmacy medicine’.

ACTIVITY 37 c (Individually)

Visit your local pharmacist and ask to talk to the pharmacy manager or a pharmacist. 1. Ask the pharmacist (i) under what conditions the pharmacy is allowed to sell products containing pseudoephedrine (ii) what details the pharmacist must record about the sale. 2. Ask the pharmacist about Project Stop and how this works.

CHAPTER 5 Criminal law 203 Possession The maximum penalty for possession of any prohibited drug (one listed in Schedule 1 or 2) is 15 years’ imprisonment. The maximum penalty increases if the person has more than the ‘prescribed amount’ of the drug. The sentence will be more lenient if the person proves they were addicted to drugs at the time. Possession means physical control and does not necessarily mean owner- ship. Physical control does not have to mean that the person has the drugs on them, that is, on the person’s body, or in his or her pocket. A person can be deemed to have possession if the prohibited drugs are on that person’s premises, without that person’s knowledge. For example, if your flatmate brings drugs into the flat and you are unaware of this, you could still be charged with possession.

ACTIVITY 38 i (Individually or in pairs)

Could a person be charged with possession of prohibited drugs in the following circumstances? Give reasons why or why not. EXAMPLE Prohibited drugs are found (by Customs officers) in a person’s suitcase as the person comes back into the country. ANSWER The person could be charged with possession of prohibited drugs as the suitcase was in the person’s physical possession.

Prohibited drugs are found: 1. On the person’s body. 2. In the person’s body. 3. In the person’s car. 4. In a friend’s car that the person is driving. 5. On the taxi driver in the taxi the person is travelling in. 6. In the person’s unit; the person did not know they were there. 7. In a friend’s house while the person is visiting. 8. On the person; the prohibited drug is two kilograms of cocaine. The person claims they thought it was icing sugar.

It is a separate offence to possess implements, other than needles, used in connection with drug use, for example, pipes. The police would need to prove that the implement had been used in connection with drug use. Although the sale of devices used to take illegal drugs is regulated under the Drugs Misuse Act, the Queensland Government also banned the display and sale of devices for marijuana use in the new tobacco laws that came into force from 1 July 2006 (refer to page 000 for more information on Queens- land’s anti-smoking laws). The new laws in relation to drug devices are clearly being enforced, as the following news item shows.

204 SECTION B Crime and society Ice pipes, bongs worth $100 000 seized

By Gabrielle Dunlevy

Queensland Health raids have netted more than ‘You just need to go to emergency departments in $100 000 worth of banned ice pipes, bongs and our hospitals on Saturday nights to see the impact bong parts in Brisbane and the Gold Coast. amphetamine use has . . . and the violence being Last week, the Queensland government banned experienced by our doctors and nurses working in the sale of ice pipes and bong parts. those departments to understand just one reason Since then, Queensland Health teams have why we should be cracking down on this kind of inspected 237 stores, handing out seven fi nes. material.’ At two particular stores — one in the Queen Street The Queensland government has also announced Mall and another in Surfers Paradise — they seized two new studies into the use of amphetamines, more than 1000 items. including ice, in the state. The retailers now face maximum fi nes of $10 500. The fi rst study will update a 2003 survey and Health Minister Stephen Robertson said the stores involve about 700 amphetamine users. had been repeatedly warned of the new legislation, The second will involve a select group of young but had the products on open display. amphetamine users, and examine their drug use, ‘What we are serious about is cracking down access to health services and any involvement in on illegal drug use, and in particular the use of crime. amphetamines,’ Mr Robertson said.

FIGURE 5.33 Source: www.brisbanetimes.com.au, 12 July 2007.

HOT SPOT

(a) How do you think police might be able to prove this? (b) Should shops that sell pipes that can be used for drug taking be prosecuted? Why or why not?

Producing A person who produces (grows or manufactures) a prohibited drug commits a crime. Producing could be as simple as watering a marijuana plant for a friend while the friend is on holiday. The maximum penalty for producing a Schedule 1 drug is 20 years’ impris- onment, increasing to 25 years if the amount is more than the prescribed amount. The maximum penalty for producing a Schedule 2 drug is 15 years’ imprisonment, increasing to 20 years if the amount is more than the pre- scribed amount. The maximum penalty for producing a Schedule 2A drug is fi ve years’ imprisonment. In 1996, a new offence was created of publishing instructions or pos- sessing instructions about how to produce a dangerous drug. This offence was created following concerns that some people were publishing drug recipes on the internet. Previous years have also seen the banning (prohi- bition of sale) in Queensland of publications showing how to grow certain illegal drugs.

CHAPTER 5 Criminal law 205 Supplying A person who supplies a prohibited drug commits a crime. The basic penalty is a maximum of 20 years for supplying a Schedule 1 drug, and a maximum of 15 years for supplying a Schedule 2 drug. The maximum penalty increases by fi ve years, in both cases, if: • the drug is supplied to a minor • the drug is supplied to a person with an intellectual disability • the drug is supplied to a person in school grounds • the drug is supplied to a prisoner • the drug is supplied to a person who does not know it is a drug. The maximum penalty for supplying a Schedule 2A drug is fi ve years’ imprisonment.

HOT SPOT

(a) In each of the circumstances on page 000, explain why the supply of prohibited drugs attracts an increased maximum penalty. (b) Do you agree that the above are more serious drug offences? Why or why not? (c) Should other situations be added to this list? If so, describe them.

Traffi cking The most serious drug offence is drug traffi cking. A drug traffi cker faces a maximum penalty of 25 years’ imprisonment (Schedule 1 drug) or 20 years’ imprisonment (Schedule 2 drug). The maximum penalty for traffi cking a Schedule 2A drug is fi ve years’ imprisonment. Traffi cking means that the person is buying or selling: ‘dealing’ in drugs. This means a stronger connec- tion with the drug trade than merely producing drugs — a traffi cker is making a living out of dealing in drugs. Other drug offences include allowing the use of premises for commission of a drug-related offence, and receiving property knowing that it was obtained from a drug-related offence. Various drug offences also exist in the Customs Act 1901 (Cth), including possession of illegally imported drugs, or importing or attempting to import illegal drugs. The Drugs Misuse Act gives police very broad search powers in relation to drug offences. Section 15 allows police offi cers to detain and search a person who they ‘reasonably suspect’ of having drugs on them, or where the police have acquired evidence relating to a drug offence. A warrant, which is usually issued by a court and is necessary for police to legally search premises, is not required. A personal search must be carried out by a police offi cer of the same sex as the person searched, or by a medical practitioner. In limited cases, police offi cers at the rank of inspector or above may require a person to undergo an internal or cavity search. The search is conducted by a medical practitioner and can occur without the person’s consent. The Act also allows police to search premises reasonably suspected to contain drugs, or evidence relating to a drug offence. Unlike the normal situ- ation when police want to carry out searches, a warrant is not required.

206 SECTION B Crime and society However, despite these harsh laws, Australia continues to have a drug problem, with large numbers of young people dying each year from drug over- doses. It was estimated that there were 73 000 ice addicts in Australia in 2006.

HOT SPOT

(a) What type of evidence could be used to show that the suspicion was ‘reasonable’? (b) Why do you think that the Drugs Misuse Act permits police to carry out searches without warrants? (c) Should police have the power to conduct searches without a warrant in drug matters? Why or why not? (d) There have been criticisms of police abusing their powers under the Drugs Misuse Act. Do you consider that these powers are appropriate or necessary for the enforcement of drug laws? Justify your response.

ACTIVITY 39 k c (Individually or in pairs)

In 2004, the most recent National Campaign Against Drug Abuse Household Survey was conducted. Study the data carefully before answering the following questions in full and complete sentences.

TABLE 5.2 Summary of illicit drug use in Australia, 2004

Drugs recently Mean age Drugs ever used(b) of initiation Substance/behaviour used(a) (per cent) (years)

Marijuana/cannabis 33.6 11.3 18.7 Pain-killers/analgesics(c) 5.5 3.1 23.4 Tranquillisers/sleeping pills(c) 2.8 1.0 25.2 (c) Steroids 0.3 — 25.2 (c) Barbiturates 1.1 0.2 19.6 Inhalants 2.5 0.4 18.6 Heroin 1.4 0.2 21.2 Methadone(d) 0.3 0.1 24.8 Other opiates(c) Meth/amphetamine (speed)(c) 1.4 0.2 n.a. Cocaine 9.1 3.2 20.8 Hallucinogens 4.7 1.0 23.5 Ecstasy 7.5 0.7 19.5 Ketamine 7.5 3.4 22.8 GHB 1.0 0.3 23.7 Injected drugs 0.5 0.1 23.7 Any illicit drug 1.9 0.4 21.7 None of the above 38.1 15.3 19.4 61.9 84.7 ..

(a) Used at least once in lifetime. (b) Used in the last 12 months. (c) For non-medical purposes. (d) For non-maintenance purposes. Source: National Drug Strategy Household Survey 2004.

CHAPTER 5 Criminal law 207 1. What percentage of the Australian population has ever used any illicit drug? 2. What is the most common illicit drug used? 3. What percentage of the population had used illicit drugs in the last 12 months prior to the survey? 4. What are the five most commonly used illicit drugs? 5. What percentage of people had used heroin? 6. In 250–300 words, summarise the main findings in table 5.2.

TABLE 5.3 Use of marijuana/cannabis: proportion of the population aged 14 years and over, by age and sex, Australia, 2004

Marijuana/cannabis use

Once a week About once a Age group Every day or more month Less often

(per cent) Males 12–19 7.5 21.9 17.0 53.6 20–29 17.6 22.1 11.8 48.5 30–39 22.6 25.9 11.4 40.1 40+ 20.4 24.7 9.7 45.2 All ages 18.1 23.6 12.0 46.3

Females 12–19 9.8 19.4 10.5 60.3 20–29 12.6 18.8 11.1 57.6 30–39 18.5 22.1 14.8 44.7 40+ 12.5 28.5 12.3 46.7 All ages 13.3 21.3 12.0 53.4

Persons 12–19 8.6 20.7 14.0 56.8 20–29 15.7 20.9 11.5 51.9 30–39 21.2 24.6 12.6 41.7 40+ 17.8 26.0 10.5 45.7 All ages 16.3 22.7 12.0 48.9

Source: National Drug Strategy Household Survey 2004.

7. Which age group has the highest usage of marijuana/cannabis (i) in males ever? (ii) in females ever? Which age group has the highest usage in the last 12 months for persons? 8. In the 12–19 age group, for both male and female, what is the percentage of marijuana/cannabis use in the last year? 9. Which age group and which sex had the most marijuana/cannabis use (a) in the last month? (b) in the last week? 10. For all ages, for both male and female, what were the percentages for use (a) in the last 12 months? (b) in the last month? (c) in the last week?

208 SECTION B Crime and society The National Drug and Alcohol Statistics Unit reports the following effects of the use of marijuana and speed.

Marijuana The most common short-term effects of a small dose of cannabis [marijuana] are a ‘high’ or feeling of euphoria, a tendency to talk and laugh more than usual, an increased pulse rate, reddening of the eyes, and a later stage in which the user becomes quiet, reflective and sleepy. With larger doses, these effects are increased and the user often misjudges the passage of time. Perception of sound, colour and other sensations may be heightened or altered. With very large doses the user may experience confusion, depersonalisation, restless- ness, excitement and hallucinations which can cause anxiety, panic or more serious psychotic episodes. Cannabis use impairs short-term memory, logical thinking, coordination and the ability to drive a car or perform other complex tasks. Cannabis smoke has a substantial tar content (higher than tobacco), so users expose themselves to a risk of lung cancer and chronic bronchitis. Regular heavy use can lead to loss of energy, slow and confused thinking and impaired memory. The use of cannabis may also adversely affect foetal devel- opment during pregnancy.

Speed Speed is made in backyard laboratories from a mixture of compounds. [This makes it impossible to know the strength of a particular ‘hit’, increasing the chance of overdose.] Speed is habit forming, [with users developing tolerance to the drug, increasing addiction]. Low to moderate doses of speed induce initial feel- ings of wellbeing and happiness as well as increased mental alertness and activity. At low doses some of the problems include increased breathing and heart rate, sweating and constricted blood vessels. Higher doses of speed can cause dizziness, irregular heartbeat, stomach cramps, blurred vision and loss of coordination which is particularly relevant to driving. Speed gives a false sense of alertness and ability to make [precise] judgements. Speed contrib- utes to some of the serious and fatal accidents on our roads. Chronic use of speed can cause high blood pressure, violent behaviour, malnutrition, audi- tory hallucinations (hearing things), psychosis, and heart attack.

National ‘Tough on Drugs’ strategy In 1997, the Federal Government announced a new drug strategy, Tough on Drugs, to deal with the drug problem in Australia. This included increased resources to enforce the law, as well as education programs. Since the introduction of the Tough on Drugs strategy, the Federal Government has maintained its commitment by allocating millions of dollars to it in Federal budgets. The National Illicit Drug strategy aims to reduce the demand for illicit drugs through the provision of improved treatment for drug users and access to treatment, as well as reduce the supply of illicit drugs through improved investigation and law enforcement methods. According to the Federal Government, data on illicit drug seizures and marked falls in heroin overdose deaths indicate that Tough on Drugs is having some effect.

CHAPTER 5 Criminal law 209 Read the following news article, which describes the Federal Government’s latest National Drugs Campaign priority.

Ice tops national drugs hit list

by Glenn Milne and Daryl Passmore

The ‘ice’ epidemic will be made the top priority ‘The thing about ice is that it is both incredibly in the Federal Government’s $40 million National addictive and incredibly destructive,’ Mr Pyne said. Drugs Campaign as politicians react to the terri- ‘While you can get off heroin using methadone, so fying effects of the drug. far there’s no way to get off ice.’ ‘Ice is now our No. 1 target in the war on drugs,’ ‘Cannabis continues to be the most widely used Parliamentary Secretary for Health Christopher illicit drug. However, amphetamines are emerging Pyne told The Sunday Mail yesterday. as a major drug menace. In 2004, methampheta- A study by the National Alcohol Research Centre mine was the most common drug recently injected found more than 73 000 Australians are dependent by drug users.’ on ice, or crystal methamphetamine. It is estimated that more than half a million Aus- Brisbane Central police Superintendent Tonya tralians have used amphetamines in the past year. Carew said ice was becoming a major problem in ‘We have thousands of people dying or ruining Fortitude Valley. She feared for the safety of her their lives through amphetamines. That’s an epi- offi cers, who are being trained to distinguish ice demic,’ said Queensland Drug Council chairman users. Sean Cousins. The Queensland Drug Council says the southeast The Gold Coast Drug Council rehab centre last corner’s amphetamine problem — including ice, year treated 3500 people aged from 12 to 35 — up speed and ecstasy — is the worst in the world. 32 per cent on the previous year. Amphetamines When departmental offi cials last week briefed were the primary drug used by 47 per cent. Mr Pyne on the third phase of the National Drugs Ice — which is three to seven times as pure Campaign, he told them there was insuffi cient as normal amphetamine (speed) — can lead to emphasis on ice. extreme psychotic episodes and violence. The result will be a new anti-ice media campaign, ‘A lot of the bizarre gratuitous violence we see is including confrontational advertisements. directly related to amphetamines because of the The Government will fund trials of the drug, psychosis and loss of inhibitions it produces, or Modafi nil, to treat methamphetamine withdrawal. fi ghts over drug debts,’ said Mr Cousins. ‘Ninety- It is also developing what is known as the National nine per cent of the time, that person is a decent, Amphetamine-Type Stimulants Strategy to deal law-abiding person, but under the effect of amphet- with ice use at law enforcement and health levels. amines they are capable of anything.’

FIGURE 5.34 Source: The Courier-Mail, 22 October 2006.

HOT SPOT

Some people argue the get-tough approach to drug taking does not work. Some argue for ‘harm minimisation strategies’ such as heroin injecting rooms where addicts can take drugs in a safe environment. Should injecting rooms be legalised? Explain your view.

Another area of increasing concern for police is where people are drugged without their knowledge or consent, on dates, or while at nightclubs.

210 SECTION B Crime and society Drink danger lurks in nightclub

Leanne Edmistone

A FEW drinks after work on Friday turned into ‘I know what feeling drunk is like and that was a hazy night of dark, unidentifi able fear for two not feeling drunk,’ Kate said. ‘I’ve never felt like that Brisbane women, both victims of suspected drink in my life.’ spiking. She has made an offi cial complaint and police While Melanie (not her real name), 28, managed are investigating. Melanie and Naomi also now plan to get home in relative safety, her friend Naomi (not to contact police. her real name), also 28, was not so lucky. Kate and Melanie said women who believed they She woke early the next morning in the hallway had been victims of a drink-spiking attack should of a strange unit block, dressed only in a g-string, report the matter to police and not doubt their own hysterical and with no memory of the night before. instincts. Naomi was too distressed to make a complaint to Melanie said publicity campaigns should be used police. to alert women of the dangers. Melanie was sick all weekend, developed ‘I think it’s rife,’ she said. ‘I don’t particularly like abdominal bleeding and went to her GP. A blood talking about it (her experience) . . . but it needs to be made real, people need more awareness.’ test revealed she had been drugged with a muscle Detective Senior Constable Fiona Hinshelwood, relaxant, a derivative of a veterinary medication. of the Brisbane-based Sexual Crimes Investigation ‘It really took me back that something like this Unit, said while anecdotal evidence suggested drink could happen, I never thought I would be the target spiking was on the rise, it wasn’t being backed by of something like this,’ she said. reported offences. For Kelvin Grove professional, Kate, 21, who also She said an interstate police e-mail network was wished to remain anonymous, the ordeal started at being set up to allow offi cers to share information, a popular Fortitude Valley nightspot last Saturday, investigation techniques and new developments in after a day at the races. the fi ght against drink spiking. The last thing Kate remembers is having one fi nal ‘The problem is that sometimes it takes a couple drink and telling her friend she was heading home. of days for the girls to realise what has happened That was about 3am. to them . . . the drug can be out of their system in At 6.30am she awoke in a police station, badly fi ve days, some in a matter of hours,’ Snr Constable bruised, groggy and without her phone or handbag. Hinshelwood said. Offi cers had called her mother to come and pick She said there was no stereotypical victim but her up. most were confi dent, capable women who later Kate went to the doctor that night, after passing blamed themselves and questioned how they could out for most of the day, but a blood test revealed no lose control. sign of drugs. She had internal chest bruising but And she said it could happen anywhere, not just had not been sexually assaulted. at nightclubs.

THE FACTS ON DRINK SPIKING SYMPTOMS PRECAUTIONS Nausea, loss of memory, lowering of inhibitions, dizziness, loss DON’T leave drinks unattended or accept drinks from a stranger of consciousness, conscious but paralysed, muscle relaxation, or get into large shouts. euphoria, sedation. DO stay with friends or tell them where you are going. Nominate DRUGS USED a non-drinking driver. Watch your drinks being poured. Marijuana, cocaine, benzodaizapines, amphetamines, GHB, Rohypnol, opiates and barbiturates. CONSIDER carefully before leaving the premises with someone Street names: Liquid ecstacy, Easy Lay, Special K, Roofi es, you have only met recently. Tell your friends if you feel strange. Roachies, Fantasy, GBH (Grievous Bodily Harm), The Forget Pill REPORT suspicious behaviour to management. Seek medical and Liquid X. attention. Report incidents to police.

FIGURE 5.35 Source: The Courier-Mail, 22 October 2006.

CHAPTER 5 Criminal law 211 In November 2006, the Queensland Government made a new law to target drink spiking. The Criminal Code (Drink Spiking) and Other Acts Amendment Act 2006 provides a maximum of five years jail for anyone caught trying to administer an illicit or stupefying substance, regardless of whether the sub- stance is drunk or not. The new offence will apply to any substance that is likely to impair the consciousness or bodily functions of the victims. Another drug regulated by the law is tobacco. In 2001, significant changes were made to Queensland’s Tobacco and Other Smoking Products Act 1998 to address the impact of tobacco smoking on the community. A review of the tobacco laws was carried out in early 2004. The Tobacco and Other Smoking Products Amendment Act 2004 was passed in November 2004. The new tobacco laws put in very restrictive as well as comprehensive smoking bans, the strictest in Australia. The new laws commenced in phases between 1 January 2005 and 1 July 2006 and include: • no smoking anywhere inside pubs, clubs, restaurants and workplaces • no smoking in commercial outdoor eating or drinking areas • no smoking in outdoor public places such as patrolled beaches, children’s playground equipment, major sport stadiums and within four metres of non-residential building entrances • no sales of tobacco products to children under 18 years of age • mandatory training of employees who sell tobacco • mandatory no smoking and quit smoking signs • restrictions on how tobacco products can be displayed at retail outlets • no tobacco advertising or competitions • tobacco vending machines must be located in bar or poker machine areas only. Queensland Health describes the aims of the law as: • reducing the public’s exposure to environmental tobacco smoke • supporting smokers trying to quit • discouraging young people from taking up the habit. There is medical evidence that the earlier a person takes up smoking, the more difficult she or he will find it to quit. Further, the longer a person smokes, the more likely she or he is to develop heart disease, cancer or other related illnesses. A child who starts smoking before the age of 14 is 15 times more likely to die of lung cancer than someone who has never smoked. Various stakeholders have expressed their opinions on the change of age from 16 to 18, and a proposal to make the child also criminally responsible for trying to purchase tobacco (this proposal did not become law). • It is unfair to prosecute the retailer but not the young person. (Queensland Retailers and Shopkeepers’ Association of Queensland) • It is ridiculous to prosecute young people for buying tobacco when they are 17, since the criminal law treats them as an adult at that age anyway. (Youth Advocacy Centre) • Tougher legislation would reduce young people’s access to tobacco prod- ucts. (Australian Medical Association)

212 SECTION B Crime and society HOT SPOT

Evaluate the Government’s response to the problem of tobacco abuse in Queensland.

Queensland’s Drug Court In 2000, the Queensland Government created a Drug Court. The creation of the Court refl ects a recognition that many crimes occur because the offender is drug dependent. Many of the break and enter, armed robbery and stealing offences that occur in Queensland are committed by offenders who are drug dependent and need money to support their drug habits. The Government has recognised that there is little point in locking up such persons because, without drug treatment, the reason for them having committed their crime/s would go unaddressed and they may commit further crimes upon release. Section 3 of the Drug Court Act 2000 (Qld) states that the Act was created in an effort to reduce the level of criminal activity associated with drug depen- dency, to promote the rehabilitation of drug offenders and their rehabilitation into the community, and to reduce pressure on resources in the court and prison systems. The drug court is appropriate only when someone has committed a relevant drug offence, involving a simple offence or one that can be dealt with summarily, where the maximum penalty of imprisonment was no greater than seven years’ imprisonment. The person cannot be under 17. The Act applies only to a person who, if convicted of the offence, would otherwise likely be sentenced to a term of imprisonment. The person must satisfy the court with appropriate medical evidence that they are drug dependent (s6). The person cannot have also committed offences involving sexual or other violence — if they have, they are not eligible to proceed in the drug court (s7). The Act applies only if the offender pleads guilty to the drug offence. If the applicant is eligible under the above rules, a drug court magistrate may make an intensive drug rehabilitation order, if he/she believes there are reasonable prospects that the applicant might comply with the terms of the order. The order will be in the form of a sentence of imprisonment, to be wholly suspended (that is, it will not be enforced), provided the offender completes the rehabilitation program. The order must include terms that the offender: • not re-offend while in the program • report any changes in address or employment within two days • not leave Queensland without a corrective service offi cer’s permission • comply with reasonable directions of such an offi cer • appear before a drug magistrate as required (s22). It may also order the applicant to pay restitution to the victim of the crime, perform up to 240 hours of community service, or do anything the mag- istrate thinks might assist the offender’s rehabilitation. The magistrate will formulate details of the offender’s rehabilitation order, including medical, psychological or psychiatric treatment, attending at detoxifi cation facilities

CHAPTER 5 Criminal law 213 for a minimum of 22 days, or other treatments. It might include the offender undertaking vocational education or employment-related courses, and drug testing.

ACTIVITY 40 k (Individually or in pairs)

1. Name the law that regulates drug offences. 2. Which of the following offences is considered to be the most serious: possession, producing, supplying, traffi cking? Explain why. 3. Describe a set of circumstances where police can search a person or the person’s property without a warrant. 4. Who must prove that a suspicion is ‘reasonable’ before a search can occur? 5. What is a warrant?

IN BRIEF

1. Queensland has tough laws against drugs and, unlike some other States, possession of marijuana is a criminal offence. 2. In an effort to combat the drug problem, governments have given police broad powers to investigate drug offences. 3. However, despite this, drug use continues to be one of the greatest social problems in Australia today.

The Summary Offences Act 2005 (Qld) contains a variety of more minor offences. Some of the interesting ones include: (a) behaving in a disorderly, offensive, threatening or violent way, so as to interfere with the peaceful passage through or enjoyment of a public place by a member of the public (s6) (maximum $750 fi ne or six months’ imprisonment) (b) begging for money or goods in a public place (s8) (maximum $750 fi ne or six months’ imprisonment) (c) seeking donations of money or goods in a public place (other than a reg- istered charity or authorised busker) (s8) (same penalty as (b)) (d) wilfully exposing your genitals in a public place without reasonable excuse (maximum $150 fi ne or, if the circumstances are aggravated e.g. it is done to offend or embarrass another, maximum $3000 fi ne or one year’s imprisonment) (e) being drunk in a public place (s10) (maximum $150 fi ne) (f) unlawful driving of a motorbike on public land without reasonable excuse (maximum $1500 fi ne) (s11A) (g) unlawfully entering or remaining in or on a public building or structure or building used for a business purpose (trespassing) (s12) (maximum $750 fi ne or six months’ imprisonment)

214 SECTION B Crime and society (h) unregulated high-risk activities — including parachuting or hang-gliding onto a building or structure, basejumping or hang-gliding from a building or structure, climbing up or down the outside of a building or structure, or abseiling from a building or structure (s14) (maximum $1500 fine or one year’s imprisonment). It is a defence if the building is designated for the above use/s, if the act is part of film or television filming, or for cleaning purposes (i) possession of implement being or to be used for, or which was used for, burglary, unlawfully entering a place, stealing a motor vehicle, unlawfully injuring a person or damaging a vehicle (s15) (maximum $1500 fine or one year’s imprisonment) (j) unlawful possession of suspected stolen property (s16) (maximum $1500 fine or one year’s imprisonment) (k) possession of an instrument reasonably suspected of being used, to be used, or which has been used, for a graffiti purpose (s17) (maximum $1500 or one year’s imprisonment). In addition, the court may order that the offender remove the graffiti from the property or pay compensation. (l) body piercing of the genitalia or chest/breast of a minor (s18) ($3000 fine or six months’ imprisonment) — consent is irrelevant (m) tattooing of a minor (s19), penalties similar to (l) (n) imposing on another to obtain money or an advantage. Impose means intending to obtain money or advantage by using an oral or written statement that is false or fraudulent; or by dress, fraudulently seek to obtain money or advantage (s22) (maximum $1500 fine or one year’s imprisonment). (o) sell a potentially harmful thing (including methylated spirits, paint and glue) to another if the seller reasonably believes the person intends to inhale the thing ($1750 or three months’ imprisonment for first offence; $3500 fine or one year’s imprisonment for subsequent offence) (p) throwing an object at a sporting event, where it may injure a person, damage property or disrupt the event (s24) (maximum $750 fine or six months’ imprisonment) (section excludes participants in the event from prosecution and spectators who return, for example, a cricket ball that has gone over the fence). The Criminal Code 1899 (Qld) includes a variety of other offences, including underage drinking, resisting arrest, perjury (lying in court pro- ceedings), making a false declaration (for example, on a tax return), bomb hoaxes, bigamy (being married to more than one person at once), child stealing, cruelty to a child under 16, fortune telling, and false pretences. Animal cruelty is dealt with in the Animal Care and Protection Act 2001 (Qld), including s18 which makes it an offence to be cruel to an animal. The maximum penalty for animal cruelty within the Act is a $75 000 fine or two years’ imprisonment. Justus Ansell, 21, was charged under the Summary Offences Act 2005, after he jumped off a cliff at Noosa, was injured and had to be rescued.

CHAPTER 5 Criminal law 215 ‘Jumping off the cliff was fi ne. It was just the timing, the swell, the conditions of the surf’

Justus Ansell on his weekend drama

A BRISBANE man who leapt 20m from a cliff into the trouble and concern he had caused. But he has the ocean at Noosa, sparking an expensive search vowed to pursue similar adventures in future. and rescue operation, said he would do it again — ‘Jumping off the cliff was fi ne,’ he said. ‘It was just given better conditions. the timing, the swell, the conditions of the surf.’ Justus Ansell spent Saturday night sheltering Mr Ansell said many people had leapt from the from rough seas inside a cave below a rock ledge same cliff, including his brother Benjamin, 23, who in Noosa National Park, before being rescued on would do more jumps with appropriate preparation. Sunday morning. But that attitude has angered some of those Despite being charged yesterday with causing involved in the weekend rescue effott. a public nuisance, Mr Ansell has defended his As the intensive care paramedic on the Energex actions. rescue helicopter, Tony Smith was winched down to ‘Jumping off cliffs and stuff, like waterfalls, is just the brothers to lift them out of danger. something I love to do,’ he said. ‘It’s something I’ve He said he had been involved in similar rescues done since I was very young.’ there before. The 21-year-old was winched to safety 15 hours ‘It is a big concern,’ he said. ‘You just can’t get after his jump, along with an older brother who had through to them that these things are really really climbed down to him. dangerous.’ Police, the Energex rescue helicopter, the vol- Surf Life Saving Sunshine Coast co-ordinator unteer coast guard and surf lifesavers searched Byron Mills said such behaviour put unnecessary for hours on Saturday night before resuming their strain on volunteer rescuers: ‘I’m very cranky about efforts early the next morning. it. He’s put his own life at risk. He’s put other lives The cost of the helicopter alone was estimated at risk.’ yesterday at $6500, while the coast guard boat was Mr Ansell is due to appear in Noosa Magistrate’s at sea for fi ve hours at a cost of about $1000. Court on February 27 on the public nuisance Faced with Opposition calls for him to repay his charge, which carries a maximum fi ne of $750 or six rescue costs, Mr Ansell yesterday said he regretted months’ jail.

FIGURE 5.36 Source: The Courier-Mail, 13 February 2007, pp. 1–2.

Violent crimes increase

Assault rates are up but the courts are coping, report Rosemary Odgers and Rosanne Barrett

PEOPLE in north Queensland are more likely to be On a region-by-region basis, more crimes were the victims of assault or other violent crimes than reported in the southeast corner of the state, but residents elsewhere in the state. when the fi gures were analysed per 100 000 head The latest police statistics show that violent crime of population the crime rates were higher in the offences against Queenslanders have risen 5 per north. cent — with teenage girls the most likely victims. That region — comprising police districts But the good news was that police reported a in Cairns, Townsville, Mount Isa, Innisfail and decrease in property crime and the unlawful use of Mareeba — recorded particularly high crime rates cars. for murders, assaults and sexual offences.

216 SECTION B Crime and society Mount Isa and Longreach recorded WHERE CRIME HITS HOME the highest murder rates per popula- tion, while sexual assaults, including Rates per 100 000 population in 2005–06 rape, were also prevalent in the larger SEXUAL UNLAWFUL DRUG PLACE ASSAULTS OFFENCES ENTRY OFFENCES regional centres. Cairns 1291 316 1687 1458 The highest rate of drug offences was Townsville 753 188 1785 1338 recorded in the central Queensland region Mount Isa 2239 275 1902 1355 Gladstone 486 137 800 918 which covers Gladstone, Longreach, Longreach 343 146 420 566 Mackay and Rockhampton although Mackay 418 219 695 2118 Charleville had a massive 2334 drug Rockhampton 653 230 1134 1331 Bundaberg 517 271 688 1616 offences reported per 100 000 people. Gympie 585 233 660 1840 Brisbane recorded the highest armed Maryborough 529 129 1183 1675 Sunshine Coast 298 138 1004 1324 robbery rates and number of thefts from Charleville 1151 194 1097 2334 shops and cars, while Gold Coast also Dalby 405 384 1634 1520 Ipswich 486 258 1127 967 had a proportionally larger number of Roma 582 85 697 1046 thefts. Toowoomba 376 156 981 982 Warwick 455 162 636 1233 However, the Police Service’s annual Gold Coast 376 83 1588 833 statistical review for 2005–06 notes Brisbane Central 2290 305 2794 5968 that each region faces ‘unique policing Brisbane West 212 64 1042 886 North Brisbane 307 75 1393 1076 issues’ and comparison should simply Pine Rivers 243 64 735 545

be a guide to crime rates. . . . Source: Queensland Police Service Annual Statistical Review

FIGURE 5.37 Source: The Courier-Mail, 22 February 2007.

Unlawful killing Offences Sexual offences against Assault the person Stalking

Stealing Robbery Offences Burglary against Fraud and cyber fraud property Computer hacking Receiving stolen property Wilful damage

Dangerous operation of a vehicle Driving Drink driving offences Anti-hooning Offences detected by camera Minor infringements

Possession Drug Producing offences Supplying Trafficking

FIGURE 5.38 The main offences contained in the Criminal Code

CHAPTER 5 Criminal law 217 Parties to offences Often a person will commit offences with the help of others. This can make it difficult to decide who has committed certain crimes. Section 7 of the Criminal Code applies to such a situation. It states that the following persons are deemed to have committed an offence: (a) the person who actually does the act that is an offence (this person is principal main known as the principal) (b) any person who helps another person to commit the offence, either by doing a positive act or, in some cases, by not doing something (accessory) accessory person who has assisted another person to (c) any person who gets another to commit an offence. commit a crime The above acts are considered to be equally serious, and as a result it makes no difference, from the point of view of sentencing, whether the accused is a principal or accessory. However, an accessory can, if the police decide, be charged with a lesser offence than the principal. This may often happen if the accessory agrees to give evidence in court against the principal. The courts have found a person guilty as an accessory if that person indi- cates they will help the principal to commit whatever crimes the principal wishes. This, together with sitting idly by while the principal kills another person, can be enough to convict the accessory of murder. So, for example, in Beck (1989) 43 A Crim R 135 the accused was charged with murder for the part she played in her husband’s killing of a 12-year- old schoolgirl. Her husband had told her that he was sexually obsessed with young girls. The accused and her husband abducted a girl from a park, and drove her to remote bushland. The accused’s husband raped and seriously assaulted the girl. The accused watched as this happened. Her husband told her he was going to kill the 12-year-old girl, and the accused did not protest. She retreated to a position behind the car, so she did not have to witness the girl being strangled. The accused was charged with murder. She claimed that she did not know her husband intended to kill the girl. However, the court applied s7, finding that she was as responsible for the murder of the girl as her husband. In terms of (b) on the previous page, she had helped her husband commit the crime by helping to kidnap the victim, and not protesting when her husband began to kill the victim. In another case, the court found that a person living in a de facto relation- ship with another who supplied illegal drugs ‘aided’ the supply of drugs by handling telephone queries about the drugs. There was no evidence that she disapproved of her husband’s activities or tried to discourage him and was therefore an accessory to the crime: Jefferies v Sturcke, Jefferies v Stewart (unreported Qld CCA 1990). Note also s8 of the Criminal Code, which states that if two or more persons decide to do something illegal, and in doing so one commits an act that is a probable consequence of that illegal purpose, each is said to have committed the offence. This section applied in the Beck case in that the couple had planned to kidnap and rape a 12-year-old girl. The girl was not blindfolded. The court

218 SECTION B Crime and society used this as evidence that the couple were not concerned about being iden- tifi ed by the girl, because part of their unlawful purpose was to kill her. Further, the accused had heard her husband say he wanted to rape a girl who would have sex with him ‘for the fi rst and last time’. In the circum- stances, the court found the girl’s death was a probable consequence of the couple’s unlawful plan. The court also applied s8 to fi nd the accused guilty of murder. Section 8 was also important in the following case.

Jervis (1992) 56 A Crim R 374

FACTS: Four females agreed that they would ISSUE: Was the accused guilty of manslaughter, kidnap someone. (This was an unlawful purpose.) even though she did not commit the act that One of the females told the others that she needed resulted in the victim’s death? to drink human blood to survive. VERDICT AND REASONS: On appeal, the court They picked up the victim and drove him to agreed with the original decision that she was the Brisbane riverfront. Two of the women got guilty of manslaughter. The women had been out of the car and took the victim to the river giving effect to an unlawful purpose, to kidnap bank. The accused stayed in the car. One of the a person and get blood from them. It was in the women returned to the car, and announced she course of achieving that purpose that the victim intended to kill the man. She asked the accused was killed, and the weapon was the knife that the for a knife. The accused gave it to her. The knife accused supplied. By her actions, the accused had was used to stab the victim 15 times. helped the offender convicted of murder achieve Two of the women were convicted of murder. her aim. The court also found that an accessory Another was found not guilty, the court could be convicted of a lesser offence than the accepting she did not know what the others were principal they assisted. Here, the accused could intending. be convicted of manslaughter, although the The accused was charged with manslaughter. person they helped was convicted of murder. On She argued she did not know that the victim was appeal, the accused’s sentence was reduced to 12

CASES going to be killed. years’ imprisonment.

HOT SPOT

(a) In your own words, explain why the accused was found guilty of manslaughter only, and not murder. (b) Go to the Queensland Government website presenting its current legislation. Go to the Queensland Criminal Code, sections 7 and 8. Read these sections carefully. Explain, in your own words, the main difference between the two sections.

ACTIVITY 41 i (Individually or in pairs)

Two women decide to rob a bank. In the course of the hold-up, a bank teller refuses to hand over money. One of the women shoots and kills the teller. Using s8, can both be charged with murder? Justify your decision.

CHAPTER 5 Criminal law 219 In July 2007, former teen lovers in Queensland were both convicted of trying to kill the girl’s parents. The girl was 16 at the time. She was sent to a juvenile detention facility for four years and could be released after serving two years. Her 20-year-old ex-boyfriend was sentenced to nine years jail for attempted murder. The couple met on the internet and started an intimate relation- ship less than a month before the attempted killings. The girl’s parents were against the couple’s relationship and the couple decided to kill them. The ex-boyfriend approached the girl’s father with a knife, but was subdued by the intended victim. The girl’s parents said in court they did not want their daughter jailed.

Attempting to commit an offence A person also commits a crime if they ‘attempt’ to commit a crime, within the legal meaning of that word. The maximum penalty for an ‘attempt’ is usually half of what the maximum penalty would be had the person committed the offence. Legally, an ‘attempt’ is defined in s4 as when a person intends to commit an offence and: (a) begins to put the intention into effect by doing something appropriate; and (b) something they do shows they intend to commit the crime but they do not actually commit the offence. The fact that it is actually impossible to commit the offence they are trying to commit is not relevant. So a person can be charged with possessing cocaine when they intended to buy cocaine, but, in fact, what they bought was caster sugar: Lee, Tan and Ong (1990) 47 A Crim R 187. Nor is it relevant to the court the reason why they do not actually go through with or complete the offence. However, merely ‘preparatory acts’ are not attempts. There can be a fine line between an attempt and a preparatory act. For example, acquiring the necessary equipment to rob a bank is prep- aration only. A person could not be charged with burglary merely because they purchased tools at the hardware store. However, a person caught on the bank’s premises outside the bank with the necessary tools at their feet could be charged with attempted burglary. One example of an attempt is Williams [1965] Qd R 86. The accused was convicted of attempting to rape a young woman. The accused held the woman down, telling her he was going to have sex with her whether she wanted to or not. The woman struggled, and the accused struck her several times. The man ripped the woman’s clothes off, and took some steps towards having sex with the woman. The woman managed to escape, and complained about the attack. The accused was charged with attempted rape. The court found that he had attempted rape. He had told the woman he intended to rape her, and had taken steps to put his intention into effect. Another is Deutsch (1986) 30 DLR (4th) 435, where the accused placed an advertisement for a secretary/sales assistant who was ‘willing to travel’. At the interview the accused told applicants that they were expected to have sex with potential clients to secure their business. Bonuses were offered for applicants willing to do this. The accused was convicted of attempting to get a person to engage in prostitution.

220 SECTION B Crime and society ACTIVITY 42 i (Individually or in pairs)

Can the following accused be charged with ‘attempting’ to commit a crime? EXAMPLE The accused aims a loaded gun at a man and pulls the trigger. The accused misses the man. ANSWER The accused can be charged with attempted murder. His acts were not merely preparatory; he had taken steps to kill the man.

1. The accused aims a gun at a man and pulls the 4. The accused buys a knife, intending to use it on trigger. Unknown to him, there are no bullets in her husband. the gun. 5. The accused walks onto the property of another 2. The accused intends to blow up a building. He is person intending to commit a burglary, but is caught by police as he is driving to the building. scared off by a big dog. He is carrying explosives. 6. The accused buys a knife, intending to kill her 3. The accused intends to blow up a building. He husband with it. In a struggle, the accused lunges is caught by police as he is placing explosives at her husband with the knife, but misses him. underneath the building.

ACTIVITY 43 k i (Individually or in pairs)

1. Describe a set of circumstances where a person 2. In your own words, explain the legal differences attempting to commit a crime is charged with the between a ‘preparatory act’ and an ‘attempt’. crime.

IN BRIEF

• The law recognises that in some cases an attempt to commit a crime can itself be a crime. • However, an intention to commit a crime, or preparatory steps to committing the crime, are not criminal in themselves. • Something more is needed, such as a positive significant act appropriate to committing the crime intended.

REVIEW ACTIVITY i c Precedent (Individually or in pairs)

On the facts below, what possible offences have been committed? Bear in mind the elements that must be shown for each offence. Discuss the problem with others, then present your response in clear and logical paragraphs. Wayne and Nick are playing tennis at the tennis club. It is the Easter weekend, and the club is almost deserted. They finish their match, and go to buy a drink from the reception area. They hear the employee talking on the phone, arranging to pick up a pizza from a takeaway outlet. After they buy their drinks, they see to their amazement that the employee has driven away from the tennis club, apparently to pick up her pizza. The premises are not locked. No-one else is around.

CHAPTER 5 Criminal law 221 Wayne and Nick decide to take what they can while the employee is gone. They prise open the cash register with a knife, and collect the small amount of cash. In anger at this small amount, they smash a few tennis rackets on the counter. They find that the club has a new computer, and begin to unplug it, intending to take it with them. Suddenly, they hear a noise, and they realise that the female employee has returned with her pizza. The boys panic, and tackle the employee. Her head hits the side of the counter, and she is severely concussed. Soon after, Wayne decides that he is going to have sexual relations with the employee. He tells her that if she protests, he will kill her. She says nothing, still affected by concussion. While this is happening, Nick loads the computer into the female employee’s car. ‘She won’t be needing these’, he says out loud, as he grabs the car keys. He thinks no-one is listening, but the comment is picked up by the video camera installed at the club. The video camera shows Nick carrying a car jack in his hand, as he returns to the club from the car. When he returns, he finds Wayne standing over the employee. Wayne explains that while he was having sex with her, she seemed to pass out. Her heart is not beating, and she seems to have suffered a cardiac arrest. Wayne and Nick then hurriedly leave the scene in the employee’s car, driving at dangerous speeds for a few kilometres before ditching the car and setting it alight.

222 SECTION B Crime and society