Criminal Law & Procedure Assignment: Crimes Act 1900 Analysis

This criminal law assignment analyzes a case involving David and Jack, examining potential criminal liabilities under the Crimes Act 1900. The scenario involves David receiving an overpayment from Jack for work performed, leading to charges of fraud and fraudulent appropriation. The assignment further explores Jack's actions, including threats and an assault on David with a hammer, evaluating his liability for assault causing actual bodily harm and potentially grievous bodily harm. Relevant sections of the Crimes Act 1900 are applied, including those related to fraud (section 192E and 192D), fraudulent appropriation (section 124), assault resulting in actual bodily harm (section 59), assault causing grievous bodily harm (section 33), and larceny, with reference to relevant case law to support the legal arguments.

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Name of Student
Name of University
Author Note

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The fact in this case is that David agrees to help Jack on the weekend to install new motor
to a car that Jack has been restoring in exchange for a payment of $500. On the weekend David
goes to Jack’s house to help him install the motor. Jack informs David that he is short on cash
and could send the agreed upon price to the bank account of David. Next day David receives
$5,000 on his bank account which he realizes as a mistake but decides to keep it. When Jack asks
David to return the extra money David refuses. Jack threatens David who ignores the threat. A
few nights later Jack comes to David’s house and attacks him with a hammer.
The issue in the case is whether David or Jack has any criminal liability under the
‘Crimes Act 1900’.
The rules that the case would need to be following are under the provisions of Crimes Act
19001. Under the Crimes Act section 192E a fraud can be defined as a person committing the
offense of fraud by any deceptive or dishonest conduct that result in him receiving any financial
advantage or property or causing any kind of disadvantage financially to anyone. The maximum
amount of penalty mentioned under the section for committing the offense of fraud is 10 years of
imprisonment. In the case R v Ho2 it was decided by the court that the obtaining of the financial
advantage should be as result of deception by the accused.
The Crimes Act 1900 Section 192D describes obtaining of financial advantage as
obtaining any kind of advantage financially for oneself or for someone else or making any
person commit an act that would result in any advantage financially for oneself or for someone
else or keeping to oneself a financial advantage that a person has. In this section causing
financial disadvantage can be described as causing any type of disadvantage to another person
1 Crimes Act 1900
2 R v Ho (1989) 39 A Crim R 145

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financially or making any person commit any act that would be resulting in the suffering of
another person from a disadvantage financially.
Section 124 of the Crimes Act 1900
defines ‘fraudulent appropriation’ as the act of keeping someone else’s property for their own
use fraudulently even though the property was not taken originally with any intention of
fraudulence. The maximum penalty for this offense mentioned in this section is either 2 years of
imprisonment or 20 penalty unit fine or both.
Under the provisions of common law for unlawful violence imminence is needed to be
apprehended as discussed in the case Zanker v Vartzokas3. The question of imminence for threats
made over phone has been a topic of discussion for the courts in many cases. In case of Barton v
Armstrong4 it was held by the court that threats over phone could be taken as sufficient to be
raising fear of imminent violent in the mind of the person to whom the threat has been given.
However in the case R v Knight5 the imminence of threat over telephone was rejected by the
court. in this case it was held that for threats over telephone to be sufficient for criminal liability
the accused would be needing to have some kind of power over the other person and would be in
a position to be carrying out the threat.
Under the Crimes Act 1900 section 59 the provision for the assault resulting in actual
bodily harm is mentioned. Under the provision of this section in case if an assault by a person to
other results in actual bodily harm, the person committing the assault would be liable for a
penalty of 5 years of imprisonment. Actual bodily harm has been described by the NSW Court of
3 Zanker v Vartzokas [1988] 34 A Crim R 11
4 Barton v Armstrong [1969] 2 NSWR 452; NSWSC
5 R v Knight [1988] 35 A Crim R 314

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Criminal Appeal in the case McIntyre v R6 as serious physical injury that causes wounding by
way of an unlawful act of force applied to another person intentionally or recklessly without the
consent of the other person.
Under the provision of section 33 of the act for an act to be considered as assault under
the Crimes Act 1900 there should be the intention of the person for using unlawful force on any
person (mens rea) as discussed in the case MacPherson v Brown7 and an application of the
intention for causing grievous bodily hurt (actus reus) as discussed in the case DPP v Smith8.
Under the Crimes Act 1900 section 33 a person can be held guilty for the offence of assault that
caused grievous bodily harm if the person caused any grievous bodily harm or any wound on
another person with an intention of causing bodily harm of grievous nature. The maximum
penalty charged for an offence under this section is 25 years of imprisonment.
Under the Crimes Act section 112 if a person found guilty of breaking into any building
to commit any serious offence of indictable nature the person would be held liable for a penalty
of 14 years of imprisonment. In the cases Stanford v R9 and R v Smith10the provisions of section
112 for breaking and entering in a building for committing serious indictable offences have been
discussed.
Under the Crimes Act 1900 section 114 the maximum penalty charged for an intention of
committing any indictable offence while being armed is 7 years imprisonment. Under the
provision of the section any person having in his possession any weapon or instrument without
any lawful reason enters in any part of a building or land with an intention to commit any offence
6 McIntyre v R [2009] NSWCCA 305
7 MacPherson v Brown [1975] 12 SASR 184
8 DPP v Smith [1961] AC 290
9 Stanford v R [2007] NSWCCA 370
10 R v Smith [1827] 1 Mood 178

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that can be termed as indictable would be held liable for penalty. The provisions of this section
were seen to be discussed in the cases R v Pierpoint11and R v Ellemes12.
Under the common law larceny is described by the Australian High Court as any act of
fraudulently where a person without any claim over any property takes away the same with an
intention of depriving the actual owner of his property.13 Under section 117 of the Crimes Act
1900 the penalty for committing larceny has been provided. Under this section any person
committing larceny or any kind of indictable offence that can be seen to be punishable like
larceny under the provision of this Act would be liable for five years of imprisonment. The
element that the property is being taken away with a dishonest intention has been discussed in
the cases of R v Glenister14 and R v Weatherstone15. The element of lack of claim of right has
been discussed in the case R v Fuge16.
The application of the rules in this case is discussed as follows. In the case it is seen that
in spite of knowing that Jack has by mistake sent David $5,000 instead of $500 David
dishonestly kept the money to himself by causing financial disadvantage to Jack. Under the
Crimes Act section 192E a fraud can be defined as a person committing the offense of fraud by
any deceptive or dishonest conduct that results in him receiving any financial advantage or
property or causing any kind of financial disadvantage as defined under section 192D of the Act
to anyone as discussed in the case R v Ho. Thus it can be seen that David can be found to be
guilty under section 192 of the Act as he has acted in a dishonest way which was seen to be
resulting in both David receiving a financial advantage and causing a financial disadvantage to
11 R v Pierpoint [1993] 71 A Crim R 187 at 194
12 R v Ellemes (1974) 3 All ER 130
13 Macdonald, Wayne, and Jacqueline Fitzgerald. "Understanding fraud: The nature of fraud offences recorded by
NSW Police." (2014) BOCSAR NSW Crime and Justice Bulletins 16.
14 R v Glenister (1980) 2 NSWLR 597
15 R v Weatherstone (unrep, 20/8/87, NSWCCA)
16 R v Fuge (2001) 123 A Crim R 310 at 314–315

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Jack. The maximum penalty that can be charged to David under this section for committing the
offence is 10 years of imprisonment.
David can further be charged with the provisions of section 124 of the Crimes
Act. In the Crimes Act 1900 Section 124
fraudulent appropriation is defined as the act of keeping someone else’s property for their own
use fraudulently even though the property was not taken originally with any intention of
fraudulence. In the case David did not have any intention initially to act fraudulently yet he kept
the extra money he received for his using it on various on-line sports betting. The maximum
penalty David can receive for this offence mentioned in this section is either 2 years of
imprisonment or 20 penalty unit fine or both.
Jack was seen to be threatening David over the telephone which was seen to be ignored
by David. Under the provisions of common law for unlawful violence imminence is needed to be
apprehended as discussed in the case Zanker v Vartzokas17. The question of imminence for
threats made over phone has been a topic of discussion for the courts in many cases. In the case
Barton v Armstrong18 it was held by the court that threats over phone could be taken as sufficient
to be raising fear of imminent violent in the mind of the person to whom the threat has been
given. In this case it can be seen that Jack has been trying to raise fear over the mind of David
however he was unsuccessful. As discussed in the case R v Knight19 the imminence of threat over
telephone was rejected by the court. In this case it was held that for threats over telephone to be
sufficient for criminal liability the accused would be needing to have some kind of power over
the other person and would be in a position to be carrying out the threat. As Jack did not have
17 Zanker v Vartzokas [1988] 34 A Crim R 11
18 Barton v Armstrong [1969] 2 NSWR 452; NSWSC
19 R v Knight [1988] 35 A Crim R 314

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any kind of power over David he could not raise any fear on David’s mind and hence cannot be
held liable under the common law for the imminence of threat.
Jack can be held liable under the provision of section 59 of the Crimes Act 1900 for
assaulting David which caused actual bodily harm to him. Actual bodily harm has been
described by the NSW Court of Criminal Appeal in the case McIntyre v R as serious physical
injury that causes wounding by way of an unlawful act of force applied to another person
intentionally or recklessly without the other person’s consent. It is seen in the case that Jack had
thrown hammer at David which caused David to become unconscious and suffering from
concussion. Under the Crimes Act 1900 section 59 the provision for the assault resulting in actual
bodily harm is mentioned. Under the provision of this section in case if an assault by a person to
other results in actual bodily harm, the person committing the assault would be liable for a
penalty of 5 years of imprisonment so Jack can be held liable for 5 years of imprisonment under
this section.
Further as discussed in the case DPP v Smith and case MacPherson v Brown if the
doctrine of mens rea and actus reus are proven then Jack could be further liable under the
provisions of section 33 of the Act. Under the provision of section 33of the act for an act to be
considered as assault under the Crimes Act 1900 there should be the intention of the person to
use unlawful force on any person (mens rea) and an application of the intention of causing
grievous bodily hurt (actus reus). Under the Crimes Act 1900 section 33 a person can be held
guilty for the offence of assault causing grievous bodily harm if the person caused any grievous
bodily harm or any wound on another person with an intention of causing bodily harm of
grievous nature. Jack was seen to be carrying a hammer which he used to harm David
grievously. If the intention of Jack can be proved to be causing grievous harm to David he would

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be held liable for a maximum penalty of 25 years of imprisonment under the provision of section
33 of the Act.
Under the Crimes Act section 112 if a person found guilty of breaking into any building
for committing any serious offence of indictable nature the person would be held liable for a
penalty of 14 years of imprisonment. In the cases Stanford v R and R v Smith the provisions of
section 112 for breaking and entering in a building for committing serious indictable offences
have been discussed. In this case it is seen that Jack opened a partially open window and climb
inside David’s house and takes David’s wallet and phone and then attacks David by throwing a
hammer at him. Thus Jack can be held liable under the Crimes Act section 112 for breaking into
the building to commit serious indictable offence and would be hled liable for the penalty of 14
years of imprisonment.
While committing the offences Jack was seen to be carrying a screwdriver and a hammer
which he used to cause harm to David. Hence it can be said that Jack was armed with a weapon
and can be convicted under the provision of the Crimes Act 1900 section 114. Under the Crimes
Act 1900 section 114 the maximum penalty for an intention of committing any indictable offence
while being armed is 7 years imprisonment. Under the provision of the section any person having
in his possession any weapon or instrument without any lawful reason enters in any part of a
building or land with an intention to commit any offence that can be termed as indictable would
be held liable for penalty. Here it is seen that Jack entered inside David’s building armed with a
screwdriver and a hammer without any lawful reason so he can be held liable for a maximum
penalty of imprisonment for 7 years as has been discussed in the cases of R v Pierpoint and R v
Ellemes.

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Jack can be further held liable for Larceny under the provisions of the Crimes Act 1900
section 117. Under the common law larceny is described by the Australian High Court as any act
of fraudulently where a person without any claim over any property takes away the same with an
intention of depriving the actual owner of his property. In the current case Jack has taken
David’s phone and wallet without any claim over the property took it to deprive David of his
property. The provision for the penalty for larceny has been discussed in section 117of Crimes
Act 1900. Under this section any person committing larceny or any kind of indictable offence
that can be seen to be punishable like larceny under the provision of this Act would be liable for
five years of imprisonment. The element that the property is being taken away with a dishonest
intention has been discussed in the cases R v Glenister and R v Weatherstone. The element of
lack of claim of right has been discussed in the case R v Fuge. Thus it is seen that Jack would be
held liable for a maximum penalty of imprisonment for 5 years.
In conclusion from the above discussions it can be said that David and Jack both have
criminal liabilities under the Crimes Act 1900.

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Reference
Barton v Armstrong [1969] 2 NSWR 452; NSWSC
Crimes Act 1900
DPP v Smith [1961] AC 290
Macdonald, Wayne, and Jacqueline Fitzgerald. "Understanding fraud: The nature of fraud
offences recorded by NSW Police." (2014) BOCSAR NSW Crime and Justice Bulletins 16
MacPherson v Brown [1975] 12 SASR 184
McIntyre v R [2009] NSWCCA 305
R v Ellemes (1974) 3 All ER 130
R v Fuge (2001) 123 A Crim R 310 at 314–315
R v Glenister (1980) 2 NSWLR 597
R v Ho (1989) 39 A Crim R 145
R v Knight [1988] 35 A Crim R 314
R v Pierpoint [1993] 71 A Crim R 187 at 194
R v Smith [1827] 1 Mood 178
R v Weatherstone (unrep, 20/8/87, NSWCCA)
Stanford v R [2007] NSWCCA 370

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Zanker v Vartzokas [1988] 34 A Crim R 11