FAQ

Is there a defence of entrapment available in Australian law?

July 1, 2016

Unlike our common law counterparts in the US, there is no defence of entrapment available under Australian law. However, the defence is available in the States, and American case law has stated that the reason for the existence of the law of entrapment is that a distinction must be made between trapping the unwary innocent, as opposed to the unwary criminal. So the question that needs to be asked is: why isn’t there a similar distinction made in Australian law?

Again, although, there is no defence of entrapment, Mason CJ in Ridgeway v The Queen did note, that if the circumstances surrounding the committing of an offence by an individual was procured by the illegal conduct of the police or any other person, it is still ultimately up to the courts to decide on a person’s innocence or guilt resulting from the trapping.

The facts in Ridgeway revolved around the arrest of John Anthony Ridgeway, who was participating in a ‘controlled importation’ of 140.4 grams of heroin into Australia which was the result of a tipoff from an informer who notified the Australian Federal Police (AFP) of Ridgeway’s intentions. With the assistance of the AFP and the Australian Customs Service, the informer was allowed to pass through customs uninhibited, and delivered the heroin to Ridgeway, which then resulted in his arrest by the AFP.

The High Court Justices in Ridgeway expressed some concerns with the actions of the AFP with McHugh J stating for example:

“In a society predicated on respect for the dignity and rights of individuals, noble ends cannot justify ignoble means ... No government in a democratic state has an unlimited right to test the virtue of its citizens. Testing the integrity of citizens can quickly be-come a tool of political oppression an instrument for creating a police state mentality.”What was most interesting about the Ridgeway case was the general acknowledgement that in facilitating with the importation of heroin into Australia from Malaysia, the AFP had also committed a serious offence against the Customs Act.

Ultimately, the High Court in Ridgeway did state that there was no substantive defence of entrapment as long as a person voluntarily commits the criminal act, and had the necessary intent, irrespective of any inducement by law enforcement officials.

As a result of the High Court action in Ridgeway, the Government amended the Commonwealth Crimes Act, allowing for law enforcement officers to engage in a “controlled operation” to obtain evidence against a person who is involved in a serious State or Commonwealth offence.

What rights does a person possess if they have been placed under arrest?

June 1, 2016

Any person who has been placed under arrest by the police must have their rights explained to them and in the event that this has not occurred, the person should request an explanation of their rights.

If a person is being questioned in relation to an offence or they have been formally arrested and placed before a custody officer, the person generally has the following fundamental rights:

  • To be treated as innocent until proven guilty by the courts;
  • To remain silent, except for certain offences, and for the police to respect their right to silence, and not to answer any questions or make statements;
  • To make a complaint if the police have denied any rights or have not explained what rights are available to a person in custody.
  • It’s always a good idea for a person who is in police custody to talk to their lawyer.

What is an arraignment?

May 1, 2016

When an accused is placed at the dock, and he or she is asked to confirm that they are named in the indictment, and with the indictment read out, the accused will then be asked to plead, and this process is known as arraignment. Generally speaking, the arraignment of an accused usually signifies the beginning of the trial.

There are a number of associated procedural requirements attached with the arraignment process that can have drastic ramifications. For example, if the clerk states a charge incorrectly, it could be the basis for a new trial, as was the case in Day v The Queen(1995) 81 A Crim R 60 (WA CCA).

What elements are involved in stalking?

April 1, 2016

One of the interesting aspects of the offence of stalking is how it differs slightly depending on the jurisdiction. For instance in Victoria, the offence can be separated in some regards from s 21A of the Crimes Act 1958 (Vic). In Thomas v Campbell (2003) 9 VR 136, Nettle J held (at 149-150; [39]):

“[T]he actus reus of stalking is engaging in a course of conduct that includes acting in a way that could reasonably be expected to arouse apprehension or fear in the victim for his own safety, or that of any other person, where the course of conduct engaged in actually has that effect... The mens rea for stalking is an intention to cause physical or mental harm or of arousing apprehension or fear in the victim for the victim’s own safety or that of any other person.

His Honour went on to outline that the offence consisted of four elements, which are (at 150-151 [42]):

  • there must be a course of conduct;
  • that course of conduct must involve a protracted act or several acts;
  • the accused must have performed the act or acts with the intention of causing physical or mental harm to the victim or of arousing apprehension or fear in the victim for his or her own safety or that of another person; and
  • the course of conduct must have aroused apprehension or fear in the victim or his or her own safety or that of another person. A course of conduct requires a continuity of purpose.

Nettle J in Berlyn v Brouskos (2002) 134 A Crim R 111, noted that s 21A of the Crimes Act 1958(Vic) is in some respects more limited than other stalking laws in other jurisdictions due to the fact that it (at 117 [24]) “speaks only in terms of proscribed conduct on at least two occasions, or on one, as in New South Wales, without the requirement of a course of conduct evidencing a continuity of purpose.”

Generally speaking when proving an offence of stalking, the criminal standard of proof is applicable – that being the acts of stalking is proven beyond reasonable doubt. 

What is meant by beyond reasonable doubt in criminal law?

March 1, 2016

We can start with by looking to s 141 of the Evidence Act 1995 (Cth) where the criminal standard of proof is as follows:

  1. In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.
  2. In a criminal proceeding, the court is to find the case of a defendant proved if it is satisfied that the case has been proved on the balance of probabilities.

At its most basic level, beyond reasonable doubt means to be certain, as Barwick CJ observed in Keely v Brooking (1979) 143 CLR 162; 25 ALR (at 169; 48):

“Adherence to the well understood standard of proof in the trial of criminal offences is quite adequate to protect the individual charged summarily with contempt of court. To be satisfied beyond all reasonable doubt is, for the purposes of the law, to be certain.”

In R v Standley (1996) 90 A Crim R 67 (SA CCA), the court  after directing on proof beyond reasonable doubt stated the following, “[I]f you think there is a reasonable possibility that the accused is not guilty, then he’s entitled to be found not guilty”.

The notion of innocent until proven guilty, and guilty beyond a reasonable doubt are dearly held precepts within Australian criminal law and should not be taken lightly. 

How does confiscation of property from proceeds of crime laws operate?

February 1, 2016

Confiscation of proceeds of crime laws are civil actions rather than criminal. Therefore, a person will not have a criminal record attached to their name, therefore, the court must only be satisfied on the balance of probabilities that the relevant property is tainted, rather than the criminal standard of proof which is beyond reasonable doubt.

Property that is considered tainted may be a car used in connection with an offence or any property derived from the commission of an offence. The connection between the relevant property and the offence must be actual, but not always substantial, as was noted in Haddad v R (1989) 16 NSWLR 476.

How is prostitution defined under Australian law?

January 1, 2016

Perhaps the easiest definition of prostitution is sexual services in exchange for money, but what fun would leaving the definition on that note be? Instead we can look to the more refined comments of the judgment in R v De Munck [1918] 1 KB 635; [1918-19] AII ER Rep 499; 13 Cr App R 113 where a mother was convicted for soliciting men for a girl, and receiving money for it. The appeal was dismissed:

“The Court is of opinion that the term “common prostitute” is not limited so as to mean only one who permits acts of lewdness with all and sundry or with such as hire her when such acts are in the nature of ordinary sexual connection. We are of opinion that prostitution is proved if it be shewn that a woman offering her body commonly for lewdness for payment in return.”

In Begley v Police (1995) 66 SASR 514; 78 A Crim R 417, the Supreme Court of South Australia had to consider whether the acts of masturbation and nude massages for money was considered as prostitution. It was held that the acts were indeed prostitution, and each of the elements of prostitution as commonly understood was made out, which were:

  • there was an offer of the body for use, as opposed to view;
  • the body was used;
  • it was offered in circumstances of lewdness;
  • the offer was indiscriminate;
  • it was offered for reward;
  • the service the appellant offered, and offered by others, to her knowledge on the premises, amounted to acts of prostitution within the meaning of the relevant statutory provisions.
How is a threat to kill offence defined in Australian law?

December 1, 2015

Before turning to the common law, we can look to s 31 of the Crimes Act 1900 as our statutory example, with the following actions considered an offence:

“(1) A person who intentionally or recklessly, and knowing its contents, sends or delivers, or directly or indirectly causes to be received, any document threatening to kill or inflict bodily harm on any person is liable to imprisonment for 10 years.

(2) It is immaterial for the purposes of an offence under this section whether or not a document sent or delivered is actually received, and whether or not the threat contained in a document sent, delivered or received is actually communicated to the person concerned or to the recipient or intended recipient of the document (as relevant in the circumstances).”

Now looking to the common law, in R v Leece (1995) 78 A Crim R 531, after reviewing the relevant authorities, Higgins J said (at 536):

“One may infer from these quotations that to be a threat to kill, the relevant utterance or communication must convey, objectively, to the hypothetical reasonable person in the position of the listener or recipient that the publisher proposes to kill the listener or recipient or another person. If it conveys a merely hypothetical proposal that will not suffice, but a conditional threat, particularly when the person threatened is entitled not to meet such conditions, will suffice as “a threat”. There may, of course, be a fine line between such a conditional threat and a merely hypothetical one.”

What is involuntary manslaughter?

November 1, 2015

In the event that the accused caused the death of a person, but lacked the mental state for murder, a charge of involuntary manslaughter may be the result. A charge of unlawful and dangerous act manslaughter requires the prosecution to prove that the accused had caused the death of a person during an unlawful and dangerous act, as was noted by the High Court inWilson v The Queen (1992) 174 CLR 313.

Involuntary manslaughter may also encompass actions where an accused exercised gross negligence that resulted in the death of a person. Generally speaking, such charges are the result of a death in instances where an accused had failed to act in circumstances where they were bound by legal duty to act, such as a relationship between a parent and child for example. 

What is slavery?

October 1, 2015

In R v Wei Tang (2007) 16 VR 454; 172 A Crim R 224; 212 FLR 145 (CA) Eames JA looking at s 270 of the Criminal Code Act 1995 (Cth) interpreted the section as follows, with whom the other judges agreed (at 469; 239-240; 161 [67]):

“The statutory definition of “slavery” is only satisfied if the person is in “the condition of slavery”, which in turn can only be created by someone exercising over the person any or all of the powers attaching to the right of ownership. That requires both an identification of what constitutes a right of ownership and what constitutes the powers that “attach to” that right. The fundamental feature of ownership is the claim of absolute right over the property that it gives to the owner as against all others to possess the property, save to the extent that the right to possession is qualified by any law, or by permission given by the owner to another. As AM Honore noted, the right to possession – that is, the right to have exclusive physical control of a thing, or such control as the nature of the thing permits – is “the foundation on which the whole superstructure of ownership exists”. Professor Honore drew the distinction between “having” a thing and “having a right” to the thing: only the latter is an assertion of a right attaching to ownership, namely, the right to possession.” 

How is intent determined in relation to arson?

September 1, 2015

Neasey J in Gardenal-Williams v The Queen looked to Kenny’s Outlines of Criminal Law in relation to intent, with his Honour citing the following passage:

“For if a man mischievously tries to burn some chattels inside a house, and sets fire to the house thereby, this is not an arson of the house if (as will, of course, rarely be the case) it appears from evidence that he neither intended nor foresaw the possibility of the house’s catching fire. For it is essential to arson that the incendiary either should have intended the building to take fire, or, at least, should have recognised the probability of its taking fire and have been reckless as to whether or not it did so. The cases emphasise that this test of liability is subjective.”[1]

 


[1] Kenny’s Outlines of Criminal Law (19th ed, 1966), JWC Turner (ed), p. 239.

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When can the police conduct a search without a warrant?

August 1, 2015

The police can search a person without obtaining a warrant if they have reasonable grounds to believe that the person has in their possession:

  • a dangerous weapon
  • illicit drugs
  • stolen, or unlawfully obtained property
  • an object to commit a crime, or cause harm to themselves, or to another person.
How is child abuse defined under Australian law?

July 1, 2015

Under the Family Law Act(the Act) child abuse can include any physical or sexual assault against a child, or a sexual activity where a child is used as an object for sexual gratification.

Under s 4(1) of the Act, abuse of a child means:

  • an assault, including the sexual assault of a child; or
  • a person (the first person) involving a child in a sexual activity with that first person or another person in which the child is used directly, or indirectly as a sexual object for the first person or another person where there is unequal power in the relationship between the child and the first person; or
  • causing a child to suffer serious psychological harm, including, but not limited to, when that harm is caused by the child being subject to, or exposed to family violence; or
  • serious neglect of a child.
  • The s 4(1) definition of abuse in the Act was derived from a number of court cases, but it was the matter of B and B; M and M (1988) 166 CLR 69; (1988) FLC 91-979 where the High Court formulated the test which was to be applied during some instances of child sexual abuse. The test that was set out by the Court involved three steps and the following three questions had to be asked when making a decision:

    1. Is there a risk of sexual abuse occu
    2. Would granting custody or access expose a child to an ‘unacceptable risk’?
    3. The Court will generally make their decision taking into account the best interests of the child and if a positive finding is made, then the civil standard of the balance of probabilities will be applied – but  at the “higher end” of the standard in accordance with the decision in Briginshaw v Briginshaw.
Does the right to silence exist in Australian criminal law?

June 1, 2015

Broadly speaking, the right to silence for most criminal law matters means that a person does not have to answer any question beyond providing their name and address. It’s handy to keep in mind that for the most part, no adverse inference can be made from the refusal to answer questions.

As a general rule, it may be a good idea to speak to a lawyer before writing or making any verbal statements.     

Are some prescription drugs illegal?

May 1, 2015

It is an offence to possess drugs such as methadone and benzodiazepines without a doctor’s prescription. However, if a doctor has prescribed Valium for example, possession in such instances is considered legal. However, it should be noted that although it is legal to possess methadone if prescribed by a doctor, it may be an offence to inject the drug due to the fact that methadone is meant to be taken orally in accordance to “recognised therapeutic standards”.

Why is committing an offence on bail deemed to be aggravating?

April 1, 2015

Offences while committed on bail is considered as aggravating due to the fact that the individual has essentially reneged on a promise to the courts that if granted bail, they will not commit further offences, which is the core condition for the granting of bail.

In gaining some understanding as to the reason why offences committed while on bail is seen to be aggravating, can be seen in the judgment of Street CJ in R v Richards (1981) 2 NSWLR 464 (at 465):

“As the lists of persons awaiting trial on serious criminal charges continue to lengthen, there are at large within the community an increasing number of persons on bail. Many of those persons will in due course plead guilty to, or be found guilty of, the offences for which they are awaiting trial. The community must be protected as far as possible from further criminal activities by persons who take advantage of their liberty on bail to commit further crimes. The only means open to the criminal courts to seek to provide this protection is to pass severely deterrent sentences upon those who abuse their freedom on bail. This will ordinarily involve a significant accumulation of the sentence for any subsequent offences on top of the sentence proper to be passed for the original offence. It must be made abundantly plain that persons at large on bail cannot expect to commit further crimes “for free”. On the contrary, they will receive salutory penalties for the very reason that they have abused their freedom on bail by taking the opportunity to commit further crimes.”

How does the caution scheme operate in relation to minor drug possession?

February 1, 2015

Looking to New South Wales and Victoria, both states allows police officers to exercise their own discretion when cautioning individuals found with a small amount of drugs. 

In Victoria, the cautioning scheme may be applied for first-time users of cannabis or heroin, while in New South Wales, the scheme may be applied towards minor cannabis offences.

Police officers may use their discretion when choosing to caution individuals who are over the age of 18 who are in possession of up to 15 grams of cannabis, is using the drug, or is in possession of a pipe or bong. However, the discretion may not be applicable for cultivation offences.

For minors in New South Wales, the discretion to caution is similarly applied, however, under the provisions of the Drug Offences Act 1997 (NSW), other offences that can be dealt with for minors can include:

  • cultivation of no more than five cannabis plants;
  • possession of no more than one gram of heroin, cocaine or amphetamines, 0.0008 grams of LSD, and 0.25 grams of ecstasy; 
  • use of a prohibited drug.

Juveniles who are cautioned in New South Wales can have three cautions issued, and the caution can be administered at a later date either at a police station, or another venue. Additionally, either a police officer or another person (such as a drug and alcohol worker), can issue the caution.

In Victoria, police officers formally caution an individual at the police station, with the person cautioned required to attend counselling at a drug treatment facility. Failure to do so may result in charges being laid.

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