Criminal Law - Distinction grade assignment

Criminal Law and Procedure Assignment


This paper will discuss the criminal culpability of Sprong, Peter, and Joe in relation to their respective charges.


A murder has been committed where an act or omission by the accused causes the death charged against the accused, and was done or omitted with an intent to kill or inflict grievous bodily harm on the deceased, with reckless indifference to human life, or if the death occurs before, during or immediately after the accused performs an act that is subject to 25 years or life in prison[1].


The facts indicate that Sprong ‘punch[ed] Jack in the face’. If causation and the relevant mensrea can be established, then this act willsatisfy the physical element of ‘voluntariness’ for the charge of murder.


Upon the understanding that Sprongcommitted a voluntary action that led to the death of Jack, was Sprong’s action the cause of Jack’s death? Jack’s death was caused by drowning, rather than by the punch inflicted by Sprong. It would be a question of fact for the jury as to whether ‘but for’[2] the actions of Sprong, Jack would still be alive. In R v Pagett[3], it was held that the accused is not legally responsible for the death of the deceased where there is an action by a third party or another occurrence that breaks the chain of causation, otherwise known as the ‘novusactusinterveniens’ test.Therefore,Sprong may attempt to argue in his defence that the rising tide was out of his control, and thus he is not liable for Jack’s death. However, a similar set of facts is found in the case of R v Hallett[4], where it was held that even though drowning was the ultimate cause of death, the accused was still guilty of murder because the defendant’s actions were considered a ‘substantial and operative cause’ of the death. Thus, it is likely, as a matter of fact, that the prosecution would persuade a jury that Sprong’s actions led to Jack’s death.

Mens Rea

According to s 18 of the Act it is necessary for the prosecution to prove beyond reasonable doubt that Sprongintended to inflict grievous bodily harm on Jack. The Crabbetest requires that the accused has the foresight that their actions will probably cause death or grievous bodily harm to the deceased[5]. The test is subjective[6], but considering that Sprong was wearing his ‘signature’ ‘S’ ring at the time of the incident – a ring that he had previously used with intent to inflict grievous bodily harm on rival motorbike gang members –, it is likely that he had the necessaryforesight. It would be a matter of fact for the jury to determine, but it appears that Sprong satisfies the mental element of s 18(1)(a).

The advice to the Director of Public Prosecutions (DPP) is to pursue a charge of murder against Sprong under section 18(1)(a) of the Crimes Act (NSW) 1900.


A conviction under section 59(1) of the Act depends upon two elements being fulfilled; firstly, that an assault took place, and secondly, that the assault resulted in actual bodily harm as defined in the common law.


To determine Peter’s culpability under section 59(1), it must be considered whether there was a voluntary act by Peter that resulted in Ben’s black eye. The facts clearly state that Peter threw a beer bottle at Joe. Although the bottle missed Joe and actually hit Ben, the prosecution could argue that there is a clear voluntary act by Peter that resulted in Ben’s injury.

Actual Bodily Harm

The question then arises as to whether Peter’s action resulted in actual bodily harm against Ben. The definition of actual bodily harm as defined by the common law includes any injury that is not permanent but that is ‘more than merely transient or trifling’[7]. It is less than ‘wounding’, where the skin has been broken[8], but is sufficient to ‘interfere with the health or comfort of the victim’[9]. The prosecution would argue that a black eye constitutes actual bodily harm as it is an injury that, although not permanent, does involve discomfort for the victim – in this case, Ben – andbruises the skin for a period of time. Ultimately, however, a bruise has been held to constitute actual bodily harm at common law in New South Wales[10]. Therefore, it is almost certain that Peter has committed an act that resulted in actual bodily harm.

Mens Rea

For the offence of ‘assault occasioning actual bodily harm’ according to section 59(1) of the Act, it is unnecessary that the prosecution determine that the accused intended to cause actual bodily harm; only that the necessary level of harm resulted[11]. Therefore, did Peter intend to assault Ben? The facts indicate that Peter intended to assault Joe by throwing the beer bottle at him, but instead the bottle struck and injured Ben. Peter may attempt to raise this issue in his defence. However, the prosecution would most likely argue that Peter was reckless in throwing the beer bottle, that is, that Peter had foresight of the possibility that his behaviour may lead to the harm of another[12]. Consequently, it is likely that Peter satisfies the fault element for this offence.

The advice to the DPP is to proceed with the charges against Peter.


The prosecution has considered two charges to bring against Joe, supposing that upon failure to convict under section 61I, that he may be culpable under section 66C(3). The discussion will address each of these charges respectively.

Section 61I - Sexual Assault

Section 61I of the Act defines sexual assault in terms of sexual intercourse having taken place, a lack of consent on the part of the victim, and that the accused knew that the victim did not consent.

Intentional Sexual Intercourse

The facts indicate that Joe ‘perform[ed] oral sex’ on Mary.Section 61H of the Act defines sexual intercourse and, under subsection 1(c) ‘cunnilingus’ is considered to constitute sexual intercourse. Therefore, thefacts strongly indicate that intentional sexual intercoursetook place between Joe and Mary.


Consent to sexual intercourse is said to be given when a person ‘freely and voluntarily’ agrees to the sexual intercourse[13]. The facts state Mary ‘willingly agree[d]’ to Joe’s suggestion to engage in sexual intercourse. Mary is aged 15 years, and the age of consent for sexual intercourse in New South Wales is 16 years.An individual’s consent to sexual intercourse may be negated if they are deemed to be incapable of consenting to the act in relation to age[14] or substantial intoxication[15]. However, Section 61S of the Act provides that a person is not determined to be incapable of consenting to sexual intercourse based on age alone. It is irrelevant that Mary was under 16 years of age[16]. Therefore, the Crown must determine beyond reasonable doubt that Mary lacked the capacity to consent to sexual intercourse with Joe.Given that Mary is 15 years old, it would be difficult to persuade a jury that she did not consent due to her age.On the other hand, it is indicated that the two met ‘while waiting in line to buy liquor’ – suggesting that Mary had been drinking. Peter told the police that he thinks Mary is usually a ‘good girl’. Therefore, if the prosecution could prove that Mary was ‘substantially intoxicated’at the time of the act, reasonable doubt as to consent may be raised.

Mens Rea

The Crown needs to prove beyond reasonable doubt that Joe knowingly engaged in sexual intercourse with Mary without her consent[17]. Joe could be found ‘reckless’ as to consent if he fails either to consider the possibility of a lack of consent, or if he saw consent as irrelevant to his situation with Mary[18]. Recklessness as to consent is considered to constitute the necessary intention for a conviction under this section[19]. Joe is fairly adamant that he thought Mary was 18 years old. The facts state that he took notice of her ‘green wrist band’, and that Mary assisted him in removing her ‘jeans and panties’.However, if Mary was proven to be ‘substantially intoxicated’ at the time of the act, the prosecution could argue that Joe was reckless as to her consent by not considering that she might be unwilling[20] had she been sober. The prosecution might also consider that there were other people under the age of 18 present at the festival.If the prosecution could raise a doubt as to whether Joe ever considered that Mary looked the same age as those wearing different coloured wrist bands, that may also satisfy the fault element for this charge.

The advice to prosecution is that a charge under s 61I for Joe may potentially result in a conviction if the Crown can provide sufficient evidence that Joe was reckless as to Mary’s consent.

Section 66C(3) – Sexual Intercourse – child between 14 and 16

Section 66C(3) provides that Joe is guilty of an offence if he has had sexual intercourse with an individual between the ages of 14 and 16.

Honest and Reasonable Mistake of Fact

This section appears to be a criminal offence of absolute liability, where legislation has determined that there is no defence available to answer the charge. In other words, Joe is guilty of the offence if it can be established that he engaged in sexual intercourse with Mary. As previously discussed, the fact that sexual intercourse occurred between Joe and Mary is fairly clear. However,in CTM v The Queen[21], the question arose as to whether the defence of ‘honest and reasonable mistake of fact’should be available to individuals who are charged under this section of the Act. It was ultimately held that although provisions for the defence were not stated, that if Parliament wanted the offence to be without any defence whatsoever it should have stated it unambiguously in the legislation[22]. Additionally, that the burden of proof is on the prosecution should the accused raise the defence of ‘honest and reasonable mistake of fact’[23].Hayne J stated the following ratio for the decision in CTM: “A person should not be held criminally responsible for conduct which would be innocent if the facts were as that person reasonably believed them to be”[24].Fromthe facts, Joe believed that Mary was at least 18 years of age. It would be a matter for the jury to decide whether Joe ‘honestly and reasonably’ believed that Mary was 18 years of age.

Advice to the prosecution is that if a charge under section 61I fails, then to proceed with a charge under section 66C(3).


[1]Crimes Act 1900 (NSW) s 18

[2]Royall v The Queen (1991) 172 CLR 378 [146]

[3][3]R v Pagett(1983) 76 Cr App R 279

[4]R v Hallet [1969] SASR 141 [150]

[5]R v Crabbe (1985) 156 CLR 464 cited in Spears, D. &Hickie, T. (2009) Criminal Law for the Common Law States. Lexis Nexis: NSW [1-8]

[6] Ibid

[7]R v Donovan [1934] 2 KB 498 [509]

[8]R v Lardner (NSWCCA, 10 September 1998, unreported, BC9804715 at page 4

[9] Howie, R.N. & Johnson, P.A., Annotated Criminal Legislation in New South Wales (2009-2010 ed, 2010)

[10]R v Cameron [1983] 2 NSWLR 66 at [67]

[11]Coulter v The Queen (1987) 164 CLR 350

[12]R v Williams (1990) 50 A Crim R 213, cited in Hayes, R. &Eburn, M. Criminal Law and Procedure in New South Wales (3rded). Lexis Nexis [5.22]

[13]Crimes Act 1900 (NSW) s 61HA(2)

[14]Crimes Act 1900 (NSW) s 61HA(4)(a)

[15]Crimes Act 1900 (NSW) s 61HA(6)(a)

[16]McGrath v The Queen [2010] NSWCCA 48 [11]

[17] Hayes, R. &Eburn, M. Criminal Law and Procedure in New South Wales (3rded). Lexis Nexis [6.13]

[18]R v Tolmie (1995) 37 NSWLR 660, cited in Ibid [6.15]

[19]Crimes Act 1900 (NSW) s 61HA(3)(b)

[20]R v Tolmie (1995) 37 NSWLR 660, cited in Hayes, R. &Eburn, M. Criminal Law and Procedure in New South Wales (3rded). Lexis Nexis  [6.15]

[21]CTM v The Queen [2008] HCA 25

[22]He Kaw Teh v The Queen (1985) 157 CLR 523

[23]CTM [160]

[24]CTM [173]