Class Four: Elements of Criminal Offences (Part II) • Since He Kaw Teh, the focus has been on whether statutory criminal offences that are silent on the question of should be classified as strict or absolute liability. • The usual approach is to classify them as strict liability. The courts are increasingly reluctant to impose absolute liability.

What constitutes an “honest and reasonable mistake”?

Four requirements for honest and reasonable mistake of fact ‘defence’:

• The mistaken belief must be genuinely and reasonably held (Proudman v Dayman); • There must be an actual mistake and not mere ignorance (SRA v Hunter District); • The mistake must be of fact, not a mistake or ignorance of law (Ostrowski v Palmer: mistakes of law are not a ground of exculpation: ignorance of the law is no excuse); • The mistaken belief must relate to the existence of facts which, if true, would have made the accused’s conduct innocent (SRA v Hunter District; Mayer v Merchant).

State Rail Authority v Hunter District Water Board (1992) 65 A Crim R 101

• Facts: An oil pipeline ruptured and its contents polluted a creek. The manager of the State Rail Authority argued an honest and reasonable mistake of fact, because he thought the pipeline was working properly. He claimed he had no reason to believe it would leak, however he acknowledged the rupturing of the pipeline was a possibility after an earthquake ten months ago, for which damage testing was available, but not taken up. • Principles: o The ‘defence’ of honest and reasonable mistake of facts is only available to those with a positive belief in a mistaken set of facts. o Mere ignorance is not sufficient, even if there is no reason to entertain a positive belief. o The mistaken belief relating to facts must have been causally linked to the accused’s conduct, such that if the mistaken belief were true the conduct would have been lawful. • Reasoning: o If the accused had a positive belief that the circumstances were different to reality, this would be sufficient to raise the ‘defence’ of honest and reasonable mistake of fact. If the accused never really considered the issue (didn’t cross their mind), this would not be sufficient. This case considered instances where the accused has no positive reason to think anything other than the mistaken set of facts (i.e. the pipeline was is good condition). o Court said in these circumstances, one must look to the aims of the legislation. The purpose for creating the offence in the first place has to be considered. In this case, the purpose is to actively stop the natural environment from being polluted, so it’s not enough to have no particular reason to believe the possibility, but rather act as an incentive to take positive steps to prevent pollution instead of hiding behind ignorance.

• Additionally, a positive belief that the act was permissible will constitute an honest and reasonable mistake of fact. That is, if your perception of the facts was correct, your actions would not have constituted a criminal offence Mayer v Merchant (1973)

• Facts: Owner of a truck was charged with failure to comply with a load weight limit of 32 tonnes. The truck was carrying distillate, which weighed 33 tonnes, though distillate varies in density. On this occasion, the driver thought the load might be slightly over the limit. • Principles: o The mistaken belief must relate to the existence of facts which, if true, would have made the accused’s conduct innocent. • Reasoning: Bray CJ said the defence of honest and reasonable mistake was not open on this , because the mistake of fact if proven would still have amounted to a breach of law.

Honest and reasonable mistake of fact • A plead of HRMF may allow an accused to avoid criminal responsibility in respect of an offence of strict liability • See e.g. R v Tolson (1889) (HRMF successfully invoked to resist charge of bigamy on the footing that at the time of her second marriage she believed that her first husband was dead) o Court concluded that she was able to avoid the sanction of this offence as it was an honest and reasonable mistake • Note: o HRMF has both a subjective (honest) and an objective (reasonable) aspect i.e. two distinct things must be reasonably possible for HRMF to be effective • Defendant must prove that the offence comprised of an honest AND a reasonable mistake o The relevant belief must be in some state of affairs which, if true, would render the defendant's conduct innocent i.e. non-criminal (see CTM v R(2002) [8]) • Not enough if the state of affairs made the accused less criminally liable - must be wholly non- criminal • E.g. speed limit of 50 km/hr - honest and reasonable belief that they were doing 60km/hr where they in fact were doing 70km/hr o The mistake must be one of fact rather than the law (see e.g. Ostrowski v Palmer (2002) 493) • Has not been aware that the relevant area of prohibit fishing for lobster - argued that it was an honest mistake • The High Court held that the plea of honest and reasonable mistake was not available to him as it was a mistake of law not fact (knew he was fishing for lobster, knew he had a commercial fishing licenses and knew where he was fishing) o The mistake must involve a positive belief as to the relevant state of affairs i.e. bare ignorance or inadvertence will not suffice (see e.g. SRA v Hunter District Water Board; Green Sergeant (1951)) • SRA v Hunter District: SRA never considered the possibility of the pipe's failure - this afforded no basis for honest and reasonable mistake • If it was to succeed it must be more than an inadvertence on the accused's part - must not be a mere absence of knowledge • If the manager had conducted an investigation of the pipe leading him to an honest and reasonable belief that the pipe was functional then he may be excused • The manager's assumption that the pipes were okay is not sufficient o The belief must go to innocence - if the mistake results from a careless assumption or if the mistake will nevertheless still result in the offence being committed, then the reasonable mistake defence is not open (Mayer v Merchant) o HRMG operates as a defence, i.e. Defendant bears an evidential burden and must point to some evidence that might indicate that a relevant mistake was made (CTM v R)

Fright or self-preservation cases « Royall v R (1991) 172 CLR 378 [Brown, 808-812, although, because the extract is limited, see also the CLR at 388-390 (Mason CJ); 398-400; (Brennan J); 408-413 (Deane and Dawson JJ); and 420-425 (Toohey and Gaudron JJ). McHugh J provides an interesting and, in some ways, orthodox discussion of (see 441-451); but note that, concerning the applicable test, his was a dissenting opinion. Royall v R (1991) 172 CLR 378 repeated – note different extract • R seriously assaults V, who locks self in bathroom of sixth floor flat. R forced door open only to see V commit suicide. • Crown allege R murder V either by (1) forced her out window; (2) fell from window when retreating from attack; (3) that she jumped from window based on well founded and reasonable apprehension that she would be subjected to threatening violence. • D appeal conviction of murder. Argued • The victim had jumped out through the window at her own free will after feeling threatened from the accused Principles: • Whether a voluntary act, committed because of well-founded fright or self-preservation, break the chain of causation required to constitute an ? o The response of the victim must be reasonable and proportionate for the causal chain to remain intact and whether it was a natural consequence • In a fright and self-preservation case, causation should not be broken • Where the victim’s death is a reasonable response from the accused’s conduct – this can be considered as a substantial an operating cause of the death Reasoning: • at [386] (Mason CJ): natural consequence' test - was the voluntary act of the deceased was a natural consequence of the previous acts of the defendant? • “...where the conduct of the accused induces in the victim a well-founded apprehension of physical harm such as to make it a natural consequence (or reasonable) that the victim would seek to escape and the victim is injured in the course of escaping, the injury is caused by the accused's conduct” • Toohey and Gaudron J where the victim’s act is disproportionate and unreasonable/ overreaction (should take into account of the circumstances which may lead to an irrational/unsound judgement) to the accused’s action à chain of causation is broken (follow this reasoning in the exam) • Deane and Dawson JJ/ Mason/ Toohey/ Gaudron: rejected the foreseeability test and would likely confuse the jury • Brennan J/ McHugh: both judges were of the view that causation should turn to whether the victim’s response is reasonable foreseeable.

« McAuliffe v R (1995) 183 CLR 108, 118-119 makes it clear precisely what the majority in Royall agreed upon (see also RIK v R [2004] NSWCCA 282) Facts • Accused left the victim on the cliff who fell into the ledge and later into the sea. • Deceased has fallen in seeking to find a means into leave the ledge without returning to the cliff where the accused was • Trial judge stated that what was required was the accused party’s conduct is substantial or significant. Two brothers convicted of constructed MDR. Principles: • Test: Whether the V acted reasonably and proportionately in the circumstances based on D’s actions and V’s fear o Avoid using reasonable foreseeability in terms of causation

• *When the jury determines whether the accused’s act caused the deceased’s death in a fright or self- preservation case, it is engaged in an enquiry that, in substance, does not really differ from that involved in any other case where there is a controversial causation question. • In other words, a jury’s finding that it is reasonably possible that the deceased’s response to the accused’s conduct was an unreasonable or disproportionate one, amounts to a decision that the accused’s conduct was not a substantial cause of the deceased’s death. • Note in this regard that intermediate appeal courts have placed emphasis on observations made in the various judgments in Royall that, for the causal chain to remain intact, the accused’s conduct must ‘substantially’/ ‘significantly’ contribute to the death: see Reynolds v R (2015) 249 A Crim R 208 at [42]; Robb v R [2016] VSCA 125 at [56]; Swan v R [2018] NSWCCA 260 at [90].

« R v Holland (1942) • The cause of death was the victim's refusal to receive medical treatment after his finger was injured in an altercation. He was advised by medical staff to amputate his finger due to the likelihood of an infection developing. The victim later died after his finger was infected with tetanus. • Causation was still in place despite the victim’s refusal of medical treatment • The accused’s attack was the operating cause of the victim’s death

s 61 prosecuted by indictment Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.

Elements of Common Assault s 61 Actus Reus Mens Rea Assault (instilling fear): • The to inflict physical unlawful • Act or words causing another person to apprehend contact or cause the victim to the immediate and imminent infliction of unlawful apprehend immediate harm; OR force – Knight, Zanker v Vartzokas; • as to the possibility of (where an indeterminate threat is vague about when inflicting physical contact or the it will be committed about a future harm, this is not apprehension of imminent unlawful assault – Knight) physical contact (advertent — conditional threats: Police v Greaves recklessness) – R v Coleman (1990) 19 — victim must be aware/ fear - Pemble NSWLR 467 inflicting upheld by Aubrey OR v R [2017] HCA (inflicting force): • McPherson v Brown • The actual application (positive act) of unlawful force through a body or any instruments (spitting) DPP v JWH

(a) Actus reus element: the immediacy requirement Where the assault involves an act causing the victim to apprehend the immediate infliction of unlawful force questions sometimes arise as to whether the threat of harm is sufficiently imminent to satisfy the AR requirement

« Knight v R (1988) 35 A Crim R 314 [Brown, 594-595] Facts: • The appellant made threatening and abusive phone calls to a police officer, a magistrate and a judge. • Apart from the phone calls, which were traced to the appellant at a considerable distance from the targets, there was no evidence in relation to assault charges. • D convicted of assault (s 61) and making false statements giving rise to apprehension for a person’s safety (s 248). • Does not matter how the threat is communicated and in what form Principles: • Whether evidence of threats was sufficient to constitute assault o Only if imminent and immediate Reasoning: • The court rejected the argument in Barton v Armstrong argument, holding that “immediate” should have a more literal interpretation to not include events occurring in the future “tonight”. • Threats need to be imminent and immediate; generalised threats of future conduct will not suffice. In this case, there wasn't such an immediate connection and conviction was quashed. • Barton v Armstrong (1969): plaintiff alleged that the defendant had phoned him and threatened to have the plaintiff killed and had engaged men to inflict violence on the men. The plaintiff alleged that he was aware that the defendant was capable of carrying out with his threats. It was decided that threats over the telephone does amount to immediate harm • R v Ireland (1988): silent phone calls called off site may constitute threat as it instils doubt and fear. More appropriate charge would be a stalking and intimidation charge under s 13. • Balven v Thurston (2013): The defendant sent two messages to the victim. The message in question did not convey an element of immediacy rather the messages only referred vaguely to some “indeterminate time”.

Note: Conditional threats may constitute assault if it was a condition that the person could not lawfully impose (Police v Greaves) (Rosza v Samuels)

Facts: • Answering a domestic dispute, the police were met by G pointing a knife at them threatening • "Don't you bloody move. You come a step closer and you will get this straight through your guts" and "Get off this property before you get this in your guts". Defendant argued that conditional threats could not constitute assault. Principles: • Conditional threats may be constituted as assault. The purpose of the threat is to intimidate or overcome the will of the victim, hence, even though it is tied to a condition it still does not constitute assault. Ruling: • The High Court quashed the conviction of assault because the threat of violence was conditional. • The Court of Appeal restored the conviction because a threat of violence along with stopping someone from proceeding with their legal rights is an assault.

« Zanker v Vartzokas (1988) 34 A Crim R 11 [Brown, 596-598] Facts:

• V accept lift from D. While underway he offered her money for sexual favours. Rejected advance and demanded he let her out of van. Drove on, accelerated, despite her threat to jump out. Threaten to take to mates house and fix her up. Car moving at 60km/h. V leapt out onto roadside and suffered injuries. • Magistrate of opinion that assault was not proved where the conduct of the D induced a present fear in the intended V’s mind that later on, in the indefinite future, she would be or could be subjected to the threatened violence. Generally speaking, the authorities refer to the immediacy or imminence of the feared physical violence.

Arguments:

• The plaintiff claimed that the defendant’s behaviour constituted assault and thereby caused her to apprehend immediate harm. • The defendant argued that the violence threatened was not immediate but instead violence in the ‘indefinite future’ and therefore did not constitute assault.

Reasoning:

• The fear in plaintiff’s mind was 'immediate and continuing... so long as she was imprisoned by the defendant'. Because the plaintiff was 'at the mercy' of the defendant (since she was imprisoned), the threats of future harm were effectively imminent. The threat continued over time as there was no safe way for the victim to escape. • Young woman believed the D’s intention and power to inflict violence in due course • “Once assault proved, the bodily harm resulting from the escape was occasioned in fact whether or not the D foresaw that she would jump”

(b) Actus reus element: can assault be done by omission, or must it be committed? • An assault whether by way of application of force or apprehension of immediate violence must be committed by an act not an omission, and must be without the of the victim. • For assaults involving the apprehension of immediate violence, there is an additional requirement that the V must actually be put in fear of imminent unlawful force.

« Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 [Brown, 592-593] Facts: • A policeman was directing the defendant to park his car. The defendant accidentally drove onto the policeman's foot. The policeman shouted at him to get off at which point Fagan swore at him and refused to move vehicle and turned the engine off. Fagan was convicted of assaulting a police officer in the execution of his duty. Fagan subsequently appealed the decision. • The defendant argued at the time of the actus reus, the driving onto the foot, he lacked the mens rea of any offence since it was purely accidental. When he formed the mens rea, he lacked the actus reus as he did nothing. Principles: • Must be a positive act, cannot be an omission. However, can be a continuing act of battery as after he was aware of the constable’s foot under his car, his decision to cease to act. Reasoning: • “first mounting was an actus reus which act continued until the moment of time at which the wheel was removed” when Fagan refused to remove himself from the constable’s foot it was a continuing act • This meant that actus reus and mens rea were present and as such, an assault was committed. Fagan’s conviction was upheld. • Could also be argued that Fagan had a duty to remove his car form the officer’s foot (Miller)

(c) Mens rea: is recklessness enough? If so, what level of foresight must the Crown prove? Is inadvertent recklessness a sufficient mens rea? • Where recklessness is relied on the prosecution must prove foresight of the possibility of inflicting physical contact or the apprehension of imminent unlawful contact – that is advertent recklessness (McPherson v Brown). • Mens rea can be: o Intention to instil fear o Intention to apply force o Recklessness as to the possibility of either of the above (but not inadvertent recklessness) « McPherson v Brown (1975) 12 SASR 184 [Brown, 599-600] Facts: • A student was convicted of assault (as in creating apprehension) of a lecturer, during a protest in which the lecturer was prevented from passing a group of students who caused him to fear for his personal safety. • Lecturer surrounded by number of students for 10-15 minutes and feared for his personal safety. • No physical conduct and the lecturer was allowed to pass eventually. Held D reckless as ought to have known that his conduct could have given reasonable grounds for apprehending the infliction of physical force (inadvertent recklessness = objective) • Court of appeal disagreed Principles: • Degree of foresight required: The weight of authorities is clear that the standard for reckless assault is that of ‘possibility’ rather than ‘probability’ • Application of objective standards and recklessness to assault. o MR for assault is the intention or advertent recklessness (foresight of the possibility rather that the probability) that another may apprehend immediate inflection of unlawful force Reasoning: • Recklessness in criminal law should be confined to where the consequences are considered even if not desired (i.e., a subjective test), rather than those that 'ought to have been known' (i.e., objective test of the ordinary/reasonable person). • “It is contrary to fundamental principles and the whole tenor of modern thought to judge a man in a criminal court, except under statutory compulsion, not by his actual intention, knowledge or foresight, but by what a reasonable and prudent man would have intended, known or foreseen in the circumstance”. • The appeal judge found that the word reckless should be confined to

« R v Coleman (1990) 19 NSWLR 467, 474(F)-476(D) (see also Blackwell v R (2011) 81 NSWLR 119, [66]-[82]) Facts: • Housemate one charge of maliciously inflicting actual bodily harm upon V with intent to have sexual intercourse with him, and on another charge of having sexual intercourse with V knowing that he was not consenting thereto. He was found guilty of the first charge but not guilty of the second. • Unconscious from drinking, held down, remove underpants and insert beer twist cap first. • Bleeding / bruising Principles: • Recklessness must be a realisation of the possibility of injury of inflicting physical contact or the apprehension of imminent unlawful physical contact • Inflicting the accused thought about and was conscious about the possibility of their conduct resulting in unlawful physical contact (advertent recklessness) Reasoning: • “... a realisation of the possibility that some such injury might result but nevertheless proceeded to act.”