70114 Criminal and Procedure Final Notes

EXAM REVISION ...... 2 ...... 3 ...... 3 ...... 3 Psychic Assault ...... 4 AGGRAVATTED ASSAULT ...... 4 Assault occasioning actual bodily harm ...... 4 Wounding or Grievous Bodily Harm with intent ...... 4 Recklessly Wounding or Grievous Bodily Harm ...... 4 ...... 5 PROPERTY OFFENCE ...... 11 ...... 11 Dishonestly Obtaining Property ...... 11 Dishonestly Obtaining Financial Advantage ...... 11 Dishonestly Causing a Financial Disadvantage ...... 11 HOMICIDE ...... 12 ...... 12 ...... 18 INVOLUNTARY ...... 18 VOLUNTARY ...... 24 CRIMINAL LIABILITY: ...... 29 : ...... 29 COMPLICITY ...... 30 JOINT CRIMINAL ENTERPRISE ...... 30 EXTENDED JOINT CRIMINAL ENTERPRISE ...... 31 ACCESSORIAL LIABILITY ...... 32 DEFENCE ...... 34 MENTAL ILLNESS ...... 34 AUTOMATISM ...... 36 INTOXICATION ...... 38 Self-Induced Intoxication ...... 39 Non Self-Induced Intoxication ...... 39 SELF-DEFENSE ...... 40 NECESSITY ...... 41 DURESS ...... 43 CRIMINAL PROCEDURE ...... 46 POLICE POWERS ...... 46

1 EXAM REVISION

2 ASSAULT COMMON ASSAULT Giles JA defines assault in Darby v DPP (NSW) (2004) 61 HSWLR 558: 'An assault is an act which a person intentionally or perhaps recklessly causes another person to apprehend the immediate infliction of unlawful force upon him; a battery is the actual infliction of unlawful force.’

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

BATTERY

Actus Reus: 1. Application of unlawful contact • An intentional positive act must be performed; an omission cannot amount to an assault - Fagan v Metropolitan Police Commissioner (19699) • Mere touching can amount to assault- Collins v Wilcock [1984] • Spitting can amount to an assault- DPP V JWH (1997) • It is unnecessary that the intentional application of force be accompanied by hostility- Boughey 1986 p 106

2. Without consent of the Victim The application is unlawful unless the victim consented; the prosecution must prove that they did not, expressly or impliedly consent to the assault- R v Clarence (1888) • Consent may be expressed or implied- Collins v Wilcock [1984] • Bonora (1994) 35 NSWLR 74: assault with consent is no assault. Law requires an intentional application of force which is unlawful. Unlawful= no legal justification and consent is a lawful excuse. • Wilson [1985] 2 Qd R 420: No necessity for the jury to have evidence from the victim as to the absence of consent.

Consent to harm: • Person CAN consent to 'common assault' (where no ABH is inflicted)

3 Psychic Assault Aggravatted Assault Assault occasioning actual bodily harm Wounding or Grievous Bodily Harm with intent Recklessly Wounding or Grievous Bodily Harm

4 SEXUAL ASSAULT

Current Legislative Framework 61H Definition of “sexual intercourse” and other terms (1) For the purpose of this Division, sexual intercourse means: a) Sexual connection occasioned by the penetration to any extent of the genitalia (including a sexually constructed vagina) of a female person or the anus of any person by: i. Any part of the body of another person, or ii. Any object manipulated by another person,

61HA Consent in relation to sexual assault offences (2) Meaning of consent A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse. (3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if: a) The person knows that the other person does not consent to the sexual intercourse, or b) The person is reckless as to whether the other person consents to the sexual intercourse, or c) The person has no reasonable grounds for believing that the other person consents to the sexual intercourse. Anyone of the above shows that they did know.

5 (4) Negation of consent - A person does not consent to sexual intercourse: a) Of the person does not have the capacity con consent to the sexual intercourse, including because of age of cognitive incapacity, or v Even if a person under 16 age consents they cannot legally consent: vitiate. They only “believe” that they consented but they cannot. b) If the person does not have the opportunity to consent to the sexual intercourse because the person in unconscious or asleep, or c) If the person consents to the sexual intercourse because of threats of force, or d) If the person consents to the sexual intercourse because the person is unlawfully detained. (5) A person who consents to sexual intercourse with another person: a) Under a mistaken belief as to the identity of the other person, or b) Under a mistaken belief that the other person is married to the person, or c) Under mistaken belief that the sexual intercourse if for health or hygienic purposes (or under any mistaken belief about the nature of the act induced by fraudulent means). R v Mobilio [1991] Nature and purpose of the act. (6) The grounds on which it may be established that a person does not consent to sexual intercourse include: a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or c) if the person has sexual intercourse because of the abuse of a position of authority or trust.

61I Sexual Assault Any person who has sexual intercourse with another person without the consent of the other person and who knows that eh other person does not consent to the sexual intercourse is liable to imprisonment for 14 years. 61J Aggravated sexual assault 61 JA Aggravated sexual assault in company

Continuing act: • Section 61 H(1)(d) includes that sexual intercourse is a continuing act, and thus if the victim withdraws at any time but the accused does not stop, then non-consensual sexual intercourse is committed.

Age of consent: • A child under 10 is presumed incapable of consenting to sexual intercourse- s66A • Sexual intercourse with children under 16 has been criminalised in NSW- s66C consent is no defence in respect of offences committed upon a person under 16 years of age, however can rely on the defence of honest and reasonable mistake of fact concerning their age- s66C(3)

6 Sexual Assault: The Physical Elements

Sexual Intercourse: the conduct Two to the offence: 1. The act/conduct being “sexual intercourse” 2. Without consent

Consent: the circumstances While the issues of “non-consent” deals with the mind of the victim it is a circumstance of the actus reus as mens rea deals with the accused’s mental state.

Consent no longer requires a manifestation of physical resistance, but now requires a “communicative” model of consent.

A positive definition of consent • 61HA (2) defines consent as a person “Freely and voluntarily agrees to sexual intercourse”. • Positive definition of consent is based on a “communicative model” of consent or an “affirmative” consent standard. • S61HA (7) provides that the failure to offer actual physical resistance is not be regarded as consent.

Circumstances which negate consent S61HA provides a non-exhaustive set of circumstances negating consent. They are divided into matters that: 1. “automatically” negate consent 2. those that may negate consent depending on the circumstances.

Automatically negate consent S61HA (4) provides that consent is negated if the person: (a) does not have the capacity to consent because of are or cognitive capacity, (b) is unconscious or asleep), (c) because of threats of force or terror to the victim or a third person, (d) unlawfully detained.

S61HA (5) (a) and (b) provides that consent obtained through a mistaken belief as to the identity of the other person or under the mistaken belief of marriage is not to be taken as consent to sexual intercourse.

Further grounds that may negate consent S61HA (4) specifies a number of circumstances which may negate consent: (a) if the person has sexual intercourse because they are substantially intoxicated by alcohol or drugs (b) are subject to intimidatory or coercive conduct or other threat that does not involve a threat of force (c) because of the abuse of a position of authority or trust

7 The addition of these grounds amounts to a substantial broadening of the circumstances which may negate consent, but they depend on the particular facts of each case.

• Mobilio [1991] VR 339: radiographer who inserted ultrasound tranducer into the vaginas of patients for sexual gratification was not guilty as the patients’ mistake did not of to the nature and character of the act.

Sexual Assault: The Mental Elements

Overview of Mental Element Two mens rea requirements to the offence: 1. The accused must intend to engage in the conduct 2. Have knowledge of the circumstance of non-consent. • Knowledge is usually understood as a subjective mens rea state involving the accused’s actual knowledge of the relevant circumstances. • S61HA (3) overturned the DPP v Morgan [1976] doctrine and expressly deems that where a person has “no reasonable grounds for believing” that the other person consents to the sexual intercourse the person is deemed to know that the other person is not consenting. • NSW is the only legislature in Australia to expressly over the “honest mistake of fact” doctrine, thereby introducing an objective test into the mens rea for sexual assault.

Mental element where mistake relief on to negate consent Gillard [2014] • High Court unanimously allowed an appeal from the ACT court of appeal’s decision which dismissed an appeal of multiple conviction of sexual intercourse without consent. • Each offence expressly provides that the mens rea for these offences is either knowledge or recklessness as to non-consent. • Consent is negated where there is an abuse of position of trust • Proof of knowledge that consent was given because of the abuse of the position of authority or would recklessness as to the circumstances suffice • The High Court unanimously held that recklessness as to s67 (1) circumstances does not establish the mental element of liability for the offence to which it applies and the mental element must be established by knowledge.

Knowledge of consent S61HA (3) (a) “The person knows that the other person does not consent to the sexual intercourse” Amounts to actual knowledge that the victim was not consenting. v Subjective mens rea state.

Recklessness as to consent • The NSW Court of Criminal Appeal held that the High Court decision in Crabbe (1985) “has no application to the of or the statutory provision in that a person who

8 is reckless as to whether his victim consents shall be deemed to know that she does not”.

Kitchener (1993) Facts • A claimed V fabricated that sex was non-consensual so that she could have an excuse for her absence for her boyfriend.

Held: • The Court of Criminal Appeal held that failure to advert at all to the possibility that the complainant is not consenting, necessarily means that the accused is “reckless as to whether the other person consents”. This type of behaviour is usually termed inadvertent recklessness. o Advert: the defendant has been subjectively aware of the risk and continues anyway. In order to be reckless, the defendant must have actual knowledge of the non-consent and pursues anyway. o In advert: the defendant did not turn their mind to the non-consent.

Tolmie (1995) • The appellant appealed on the grounds that the trial judge erred in his directions to the jury on recklessness. Facts • The complainant and the appellant were among a group of people who had been drinking, as they walked down a path the appellant asked the complainant to come to him at the back of the group where he propositioned her. She repeatedly told him to stop and they ended up on the ground where he sexually assaulted her. Held: • Recklessness can be shown where the accused adverts to the possibility of consent but ignores it, • And also where the accused is so bent on gratification and indifferent to the rights of the victim as to completely ignore consent.

No reasonable grounds for believing the other person was consenting • The abolition by s 61HA(3)(c) of the subjective Morgan defence that enabled a person to answer a rape charge with an honest belief that the V was consenting, even if a reasonable person wouldn’t have made that mistake.

• Final mental state deemed to be knowledge under s 61HA (3)(c) is if the accused has “no reasonable grounds for believing that the other person consents. • This subsection over turned the Morgan honest belief doctrine, and now requires that • the accused’s belief be not only honest but reasonable • Subjective test.

9 Morgan Facts • Husband to the victim told his friends that they could have sex with his wife. The more she fought back the more she consented and was ‘into it’.

Held: • They did not have knowledge of a ‘non-consent’ àRecklessness: That they are subjectively aware of the possibility of a non-consent. • They had reports so that they subjectively believed that they did have consent. • The men were acquitted: Although they did commit the actus reus, they did not have the sufficient mens rea. Husband was charged with aiding and abet. • Subjective inquiry: What did they actually believe.

10 PROPERTY OFFENCE FRAUD Statutory Offence of Fraud s 192 E (1) A person who, by any , dishonestly: (a) obtains property belonging to another, or (b) obtains any financial advantage or causes any financial disadvantage, is guilty of fraud. Max: 10 years. (2) A person’s obtaining of property belonging to another may be dishonest even if the person is willing to pay for the property. Three different forms of the offence: 1. Obtaining property 2. Obtaining financial advantage 3. Causing a financial disadvantage

Dishonestly Obtaining Property

Dishonestly Obtaining Financial Advantage

Dishonestly Causing a Financial Disadvantage

11 HOMICIDE MURDER

18(1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.

Crimes Act S 4 ‘Grievous bodily harm’ includes: a) The destruction (other than in the course of medical procedure) of the foetus of a pregnant woman, whether or not that woman suffers any harm, and; b) Any permanent disfiguring to a person, and; Any grievous bodily disease.

ACTUS REUS: 1. Death: • That must have caused the death of the victim. o Definition of Death: S 33 Human Tissues Act Brain, defines death as the irreversible cessation of all function of the persons brain and blood circulation o Definition of Life: S 20 Born Alive Rule; first breath outside their mother. 'child shall be held to have been born alive if it has breathed, and has been wholly born into the world, whether it has been an independent circulation or not'. o Who can be killed: Not a foetus in euro. Not even partially born (External to the mothers body)

2. Death must be caused by a voluntary act or omission (CAUSATION): • Death must be caused. • Act: positive • Omission: person has have had a duty to act: Ø Principle of duty: duty arises through 1. Status (relationship), - e.g. parental, doctor and patient, student and teacher. 2. Statutory (statute) 3. Contract - e.g. Consumer and Supplier (product reliability) à Company cannot be found guilty of care, rather a person. 4. Creation of danger (dangerous situation) – Taktak and Taber - R v Taktak (1988): D secreted her away from public vision.

12 - Taber: if you create a situation of dangerousness or place someone in that danger, because of that, a legal duty arises that you then have to make it safe again. Moral Duty is insufficient to murder; therefore, it must be a legal duty. Only a legal duty can be sufficient to become an omission in regards to homicide. - Fact that the person was placed into harm’s way the moral duty is transformed into a legal duty. • For attempted murder, there must be proof of an intent to kill (Knight (1992) 175 CLR 495).

MENS REA: 1. Intent to kill • Intention to kill is strictly subjective test. • Thabo Meli [1954] 1 All ER 373: Accused took man out to kill him, gave him alcohol to intoxicate him and struck him on the head. He rolled him off a cliff to make it look like an accident, but the accused was not actually dead. o There can be no intention to kill when the accused thought he was already dead. However, it is impossible to divide up what was really one series of acts in this way. Their guilty purpose was achieved.

2. Intent to inflict GBH • GBH= ‘permanent or serious disfiguring of the person’ or ‘death of a foetus’ : s 4 Act 1990 (NSW) • Subjective state of mind. • Must be intention to inflict GBH, not lesser harm (ABH) • Rhodes v R (1984) o Held that it was up to the jury to determine that the intention to render unconscious amounted to an intention to inflect GBH.

3. Reckless indifference to human life. • Defendant foresaw the probability (As opposed to possibility: Crabbe) of his actions resulting in death (as opposed to grievous bodily harm: Royall) • Subjective mens rea.

Recklessness (as to human life). • Recklessness: Defendant must have subjective knowledge or awareness of the probability (not possibility). • Probability: Crabbe (1985)

Indifference to human life: • Subjective awareness of the likely hood of death or grievous bodily harm occurring. (Common Law indifference) • NSW: Statute (s 18 of the Crimes Act) only includes death. (Royall)

13 Voluntariness and Causation • The prosecution must prove that a voluntary act of the accused caused death for the actus reus of unlawful homicide to be complete. • Voluntariness can be presumed (Falconer (1990)) • Katarzynski [2005] NSWCCA drew a distinction between two issues: i. The identification of the death-causing act (causation) ii. Whether that act was willed (voluntariness)

Causation • The causing of death aggravates the seriousness of what would otherwise be an attempt to murder under Crimes Act ss 27-30 • Hallett [1969]: ‘If at the time of death, the original wound is still an operating cause and a substantial cause, then the death can be properly said to be the result of the wound, albeit that some other cause of death is also operating… Only if the second cause is overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.’

Royall (1991) 172 CLR 378 Facts Crown case was that R murdered H in one of three ways: 1. That he pushed or forced her out of the window 2. That she fell when retreating from a physical attack by R 3. That she had a well-founded and reasonable apprehension that, if she remained in the bathroom, she would be subjected to life threatening violence from R, and jumped out of the window to escape. (establishes causal link)

Issues • Causation left to jury to decide as one of fact.

Held • ‘key element in the chain of causation… is that an accused’s conduct creates in the mind of the victim a well-founded and reasonable apprehension of danger as a result of which the victim takes steps to escape leading to his or her death. According to this view it is enough that the victim’s apprehension of danger is well founded and reasonable; there is no requirement that the steps taken to escape should be reasonable.’ Application Operating and Substantial cause test. - If, at the time of death, the defendant's act was a substantial and operating cause of the death, then the defendant will be deemed as causing that death: Royall - ‘It need not be the only cause, but the operating and substantial cause’

14 Hallett [1969] SASR 141 Facts A murdered W. Cause of death was drowning but there were injuries to V’s neck and skull that rendered him unconscious. Dragged V body out of water on the beach, left his legs in the water. When he returned the V had dorwned. He mutilated V.

Issues • Whether the sea broke the chain of causation.

Held • If at the time of death the original wound is still an operating and substantial cause then there is a causal connection, even if some other cause is also in operation. • If a defendant causes a situation, which then puts the victim in danger of being affected by another perilous situation, and the victim ends up dying because of the new situation, the chain of causation remains unbroken (since the first is still a substantial cause). • Since the Defendant left the deceased on the seashore unconscious (first situation), and he drowned when the tide came in (second situation), the act of the Defendant still caused the death. • If an extraordinary tidal wave had come and drowned the victim, it may have broken the chain of causation, as an independent act of god. However, the natural tide at the site of the drowning was not an intervening event.

Application • ‘It need not be the only cause, but the operating and substantial cause’

Blaue [1975] 3 All ER 446 Facts V who refused sexual advanced from the D, was then stabbed. When in hospital she refused blood transfusion because she was a Jehovah Witness. As a result died. Issues • Whether if V’s actions were unreasonable the chain of causation was broken.

Held • The physical cause of death was the bleeding arising from penetration of the lung brought about by the stabbing. • The judge was entitled, in simply applying law to facts, to direct the jury that the stab was an operative cause of death. Application • ‘It need not be the only cause, but the operating and substantial cause’

15 Temporal Coincidence Coincidence of Actus Reus and Mens Rea: • For an offence to be committed, the prohibited act and the fault element must coincide. • If a forbidden act is performed by the accused but at the time of doing the act he or she lacks the necessary criminal intent, or vice versa, the accused is not guilty of the offence. • This principle was reaffixed by the HC in Meyers (1997) • In Thabo Meli [1954] o The accused, in accordance with a preconceived plan, struck the victim over the head, where he was gained unconscious. o Thinking that the Victim was dead, they rolled him off a cliff to make it look like an accident. o There could be no intention to kill when the accused thought that the man was already dead, so their original intention to kill had ceased. o COURT FOUND: Series of acts rather are one transaction and an extension of the mens rea.

Murder: Intent and Reckless Indifference:

Crabbe (1985) Facts After consuming a substantial amount of alcohol the Respondent visited an Inland Motel and drank in a crowded bar in Ayres Rock. His behaviour caused nuisance and he was physically ejected from the bar. In the early hours of the morning following this incident he returned to the motel. He drove his vehicle (road train) through the wall and into the bar; as a result, five persons died and many were injured. The R did nothing to assist the injured but left the motel. Issues • Whether the knowledge which an accused must possess when he lacks an actual intent to kill/do grievous bodily harm must be a knowledge of the probability that his acts cause death/grievous or whether knowledge of a possibility is enough.

Held • Conclusion that ‘a person is guilty of murder id he commits a fatal act knowing that it will probably cause death or grievous bodily harm but (absent an intention to kill or do grievous bodily harm) is not guilty of murder if he knew only that his act might possibly cause death or grievous bodily harm is not only supported by preponderance of authority but is sound in principle. • Court finds to probability rather than possibility. • Possibility is a much lower standard, whereas probability is higher, therefore as murder is the highest offence it must be met equally with a higher standard; probability.

Application • In Royall (1991) the High Court held that the decision in Crabbe on mens rea for murder on interpretations of reckless indifference to human life in s 18 of the Crimes Act, under NSW legislation, the prosecution had to prove that the accused foresaw the probability of death. • In Solomon [1980] In NSW the defendant who is recklessly indifferent to serious bodily harm and not to death itself will be guilty of manslaughter.

16 Constructive Murder: • R v Ryan [1967] ALR 577, per Windeyer J:The generally accepted rule of the common law is that an unintended killing in the course of or in connection with a is murder only if the felonious conduct involved violence or danger to some person. o S 18 of the Crimes Act has superseded the felony murder doctrine.

R v Ryan [1967] ALR 577 Facts Ryan entered a service station intending to commit . He pointed a rifle at the attendant, told him to turn around and with one hand started to tie the attendant’s hands whilst the other hand was holding the gun at the attendant’s head. There was no dispute that it was the accused’s dinger which had pressed the trigger but he maintained that the killing was an accident.

Issues • Voluntariness

Held • ‘The conduct which caused the death was of course a complex of The High Court acts all done by the applicant- loading the riddle, cocking it, (Gibbs CJ, Wilson, presenting it, pressing the trigger. But it was the final act, pressing Brennan, Deane, and the trigger of the loaded and levelled rifle, which made the conduct Dawson JJ) lethal.’ • The defendant consciously put himself in this situation and, although the man who he was making the threat to acted spontaneously in his sudden movement, The Defendant cannot claim that his actions was involuntary.

Application • In Ryan, the death was accidentally caused. Under constructive murder, a conviction can be secured even if the consequence was accidental.

17 MANSLAUGHTER INVOLUNTARY

PROVOCATION • Provocation is successfully raised reduces murder to manslaughter.

Smith [2000] • Doctrine of provocation as a concession to human frailty R v Welsh (1869) • Keating J: ‘Something which might naturally cause an ordinary and reasonably minded man to lose his self-control and commit such an act.

R v R (1981) Facts • R was charged with the murder of her husband after a long history of violence and incest upon the husband to her four daughters. • Trigger incident: Deceased raped his wife. After revealing to her that he had been sexually assaulting his daughters, he stroked her arm And told her that they would be ‘one big happy family’. Issues • At trial, the judge refused to direct the jury on the issue of provocation, and R was convicted of murder by an apparently reluctant jury Held • On Appeal King CJ: ‘It was open to a reasonable jury to take the view that an ordinary person possessing those characteristics of the appellant which rendered her susceptible, might suffer, in consequence of the deceased’s words and actions on the fatal night, a loss of control to the extent of doing what the appellant did.

Consequences The 1982 Reforms • Reforms to address traditional common law formulation of provocation o Requirement that the fatal force be used immediately after the provoking conduct

Current law: Three-part structure remains: 1. the provoking conduct. 2. the accused’s loss of self-control resulting from the provocation 3. whether the provocation could have caused an ordinary person to lose self-control to the extent of intending to kill/inflict GBH.

Crimes Act 1900 (NSW) s 23: 1) If, on the trial of a person for murder, it appears that the act causing death was in response to extreme provocation and, but for this section and the provocation, the jury would have

18 found the D guilty of murder, the jury is to acquit the D of murder and find the D guilty of manslaughter. 2) An act is done in response to extreme provocation if and only if: a) the act of the D that causes death was in response to conduct of the deceased towards or affecting the accused, and b) the conduct of the deceased was a serious , and c) the conduct of the deceased caused the accused to lose self- control, and d) the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm. 3) Conduct of the deceased does not constitute extreme provocation if: a) the conduct was only a non-violent sexual advance to the accused, or b) the accused incited the conduct in order to provide an excuse to use violence against the deceased. 4) Conduct of the deceased may constitute extreme provocation even if the conduct did not occur immediately before the act causing death.

Within the sight or hearing of the accused: • S 23(2)(a) “towards or affecting the accused” leaves undisturbed the common law formulation that the conduct must occur within sight/hearing of the D.

Davis (1998) 100 A Crim R 573 Facts • A became close to a young girl who reported to him sexual abuse by the deceased. The man was intoxicated and left a party to kill the deceased. Convicted of murder. Issues • Whether the conduct must take place in the presence of the accused

Held • 1982 change to s 23 occurred when the principle was that the conduct must have occurred in the presence of the accused. • The High Court refused to hear the appeal because they argued that the time between when Davis was first 'provoked' to when he actually killed the deceased was too long for an ordinary person to have 'lost his self control'

Sexual Advances:

Green (1997) 191 CLR 334 Facts • Green claimed his friend had come into his bedroom after they’d both been drinking, slid into bed, and made a sexual advance. The alleged touching was described as amorous, not forceful – the defence said it was persistent. • Defence raised provocation: o As he was groped by the victim, Green alleged that he was reminded of his father abusing his mother and sister, and so he was provoked. Held • HCA declined to close the possibility that a non- violent homosexual advance could constitute provoking conduct.

19 FORMULA: Elements of provocation comes from S 23 Crimes Act 1. Provocative conduct - Identify the provocative conduct 2. s 23 2 A: Toward or effecting the accused 3. s 23 2 B: that the conduct was a serious indictable offence. - Deal with exclusionary criteria: non- violent sexual advance. (23 3a and s 23 3b) 4. 23 4: Conduct needs to occur directly after the events.

Could have caused an ordinary person to lose control. To the extent of intending to kill or inflict grievous bodily harm.

20 SUBSTANTIAL IMPAIRMENT OF THE MIND (SIM)

‘Disabling passions of an ephemeral kind are not to count’ (R v Purdy [1982] 2 NSWLR 964 at 966). In other words, the abnormality need not be permanent but it must be more than a transitory nature.

The Defence of Substantial Impairment Statutory Basis • s 23A Crimes Act There are three main requirements in s 23A(1): 1. At the time of the act or omission, the accused was suffering from an ‘abnormality of mind arising from an underlying condition’; and Must be: 1. Pre-existing (underlying condition) 2. More than transient. 2. The accused’s capacity to control him/herself was substantially impaired by the abnormality; and 3. The impairment was so substantial as to warrant liability being reduced from murder to manslaughter.

• s 23A (4) Onus on the defence to prove balance of probabilities.

Chayna (1993) 66 A Crim R 178: Facts • Accused was depressed. Killed her daughters and sister-in-law claiming they were better off with God. Raised defences of insanity and diminished responsibility. Held • The NSWCCA allowed the appeal and substituted a verdict of manslaughter, by a reason of diminished responsibility. Consequences • S 23A was amended in 1997

23A Substantial impairment by abnormality of mind:

1) A person who would otherwise be guilty of murder is not to be convicted of murder if: a) at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. 2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. 3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section.

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