Criminal Law Offences and Defences

This article discusses criminal law offences and defences with examples. It covers topics such as fraud, offensive behavior, sexual assault, homicide, and apprehended domestic violence orders. The article also explains relevant sections of the Crimes Act 1900 (NSW), Summary Offences Act 1988 (NSW), and Crimes (Domestic and Personal Violence) Act (2007).

Running head: Criminal Law Offences 1
Criminal Law Offences and Defences
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Criminal Law Offences 2
Question one
Major sports clothing manufacturer paid $100,000 into Bashar’s bank account.
Bashar received financial advantage through deception and thus committed fraud. The
offence is provided under s. 192E1. Under the provision, any person who receives any
financial advantage through deception or dishonesty or puts another in financial disadvantage
through deception or dishonesty has committed fraud. The crime of fraud also includes
acquiring another’s property through fraud or deception. To obtain financial advantage under
s. 192E is defined under s.192D and it means to be the beneficiary of the financial advantage
or by inducement of a third you make yourself the beneficiary or another person the
beneficiary. It is inconsequential whether it temporary or permanent2. From s. 192D and
192E it is possible to deduce the following to be the actus reus of the offence to include
obtaining of financial advantage while the mens rea being intentional or recklessly acting in
dishonest or deceitful manner.
Bashar had signed a sponsorship contract with a major sports clothing manufacturer who had
agreed to pay $20,000 for each test match he plays, with a bonus of $80,000 for each test
match the team wins. However, Bashar’s team was not winning and informed his friend about
being in need of the $80,000 winning bonus. The friend told him to tamper with the ball.
Bashar tampered with the ball and thus his team won leading to receipt of $100,000 as bonus
from his sponsor. However, he does not remember the incidence. This might considered
reckless being that he does not give an account how the sand paper found itself in his pocket.
Thus Bashar used deception and dishonest means to obtain the $100,000 which is a crime
under s. 192E of the Act.
1 Crimes Act 1900 (NSW)
2 Sakurai Yuka and Russell G Smith, Gambling as a motivation for the commission of financial crime.
(Australian Institute of Criminology, 2003)

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Bashar can rely on the defence of intoxication. He does not remember the event of
tampering with the ball and this he informed his coach, Francis and Dyson. Intoxication is
defined in s. 428A and it means being under the influence of drug or some other substance.
Under s. 428C the defence of intoxication is limited to offences of specific intent and are not
available to such offences where the defendant had resolved to commit the offence before
intoxication or became intoxicated to commit the offence3. Even though evidence of
intoxication is relevant, under s. 428D, in determining existence of mens rea, however, it is
irrelevant where the intoxication was self-induced4. This applies to offences other than
specific intent offences5. Also, under s. 428G the defence of intoxication is not available
where it is self-induced.
The offence is not specific intent offence and thus s. 428A and 428C are not available.
Bashar’s intoxication was self-induced. He woke up with severe pain and decided to take
twice the prescribed amount of pain killers. Therefore, the defence is not available for his as
per s. 428G.
Question two
Get your fucking shit together Bashar and bowl like you did in the last test.
Christos committed behaved offensively in a public place in the presence of school
going children contrary to the s. 4 of the Summary Offences Act. Under s. 4 no one is
permitted to behave offensively in or near a public place or a school. This include within the
view and hearing. However, use of offensive language alone does not constitute offensive
conduct under s. 4 of the Act6. A public place and a school are both defined in the Act.
However, for purposes of this scenario question we shall refer to the definition of a public
place. A public place is defined, under s. 3, as a place accessible by members of the public
3David Lanham et al, Criminal Laws in Australia (Federation Press, 2006) 58.
4 Paul Fairall and Stanley Meng Heong Yeo, Criminal Law Defences in Australia (Butterworths, 2005) 283
5Peter Louis Waller and Charles Robert Williams, Criminal Law: Text and Cases (Butterworths, 2001) 807
6 Summary Offences Act 1988(NSW) s. 4

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either on payment or not. This includes places covered by water and part of premises. It is,
also, inconsequential whether the members of the public are of a particular class or not. The
offences are justifiable where the defendant has a proper reason for the offensive conduct or
language7. The Actus reus of the offence is conducting of oneself in offensive manner or
using offensive language. the offence do not provide for mens rea.
Get your fucking shit together can be considered to be offensive language. The
language was used in the cricket national team training accessible to members of the public,
and in this case school children. Thus, the playground fits the definition of a public place
under the Act and therefore, Christos committed the offense of using offensive language in a
public place.
Question 3
Dyson made Bashar to strip and had sex with Bashar in order not to disclose the ball
tampering
Dyson had sex with Bashar in order to keep Bashar’s act of ball tampering secret.
From the case scenario, Dyson can be considered to have committed sexual assault on Bashar
contrary to s. 61I of the Crimes Act 1900. Sexual assault crime, as provided under s. 61I, is
committed where the defendant engages in sexual intercourse with another person knowing
that other person has not consented to the sexual intercourse. Sexual intercourse is defined
under s. 61H of the Act. The consent has to be freely and voluntarily given otherwise there is
no consent at all8. There are circumstances where consent might be negated9. This include
where the consent is obtained by way of intimidation, coercion and threat. From the stated
7 John Munice and Barry Goldson, Comparative Youth Justice (Pine Forge Press, 2006) 99
8 Crimes Act 1900 (NSW) s. 61HA
9 Crimes Act 1900 (NSW) s. 61HA

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provisions, the actus reus of the offence is having sexual intercourse with another while mens
rea is engaging in the act knowing you do not have the prerequisite consent10.
Dyson persuaded Bashar to go to his place to strip off and show him his beautiful
body and later requested to have sex with Bashar in order not to tell anyone. The effect of
telling anyone was that Bashar would lose the sponsorship. There was sexual intercourse
between Dyson and Bashar. Even though Bashar consented, the consent was not free and
voluntarily but was obtained through threat and intimidation. Thus Dyson committed sexual
assault.
Question 4
Francis flicked a cigarette butt into skip thus caused explosion and fire killing Sylvester.
Acts of Francis caused the death of Sylvester and thus can be considered to have
committed the offence of homicide, that being either murder or manslaughter. Murder and
manslaughter is provided for under s. 18 of the Crimes Act. A person is considered to have
committed murder where with intention to kill another or without any regard/ reckless to
human life caused the death of another. This might also be in circumstances where the person
intended to cause bodily harm to the person. The act defines manslaughter as any other
homicide other than murder. However, under s. 18(2) of the Act, the defendant might excused
of homicide where the act was not malicious or where the law provided him or her with an
excuse. The actus reus of the offence act or omission of the defendant causing death while
mens rea of the offence include intention to cause murder or cause grievous bodily harm or
acting recklessly without any due regard to human life.
Francis flicked a cigarette butt into the skip bin stored next to the shop. The butt
caused an explosion and a fire when it ignited dry cleaning fluid. The fire spread to
Sylvester’s flat. Sylvester’s attempts to leave through fire were futile and he was killed by
10 Antonio Cassese et al, International Criminal Law: Cases and Commentary (Oxford University Press, 2011)
69

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fire. Francis act of flicking the cigarette butt in the bin can be considered reckless and
indifference to human life11. The cigarette but was still burning and there were chances that it
would ignite fire. Francis is therefore guilty of murder.
Question 5
Crimes (Domestic and Personal Violence) Act 2007 provides for the Apprehended
Domestic Violence Order. The application is made in accordance with part 10 of the Act and
the purpose of the order is to protect a person from another he or she has had or has a
domestic relationship with. The application can be for the benefit of more than one person but
one the beneficiaries must either be or had been in a domestic relationship with the
defendant12. The spouse of the defendant or police can make application for the order13.
However, under s. 49 of the Act, there are circumstances under which the police must make
an application for the Apprehended Domestic Violence Order14.
S.17 provides factors considered by court when determining an application for
Apprehended Domestic Violence Order. The court has to be satisfied on a balance of
probabilities that the there is or had been a domestic relationship between the parties and that
the applicant fear or violence is based on reasonable grounds or that there had been violence
against the applicant before or that the defendant has stalked or intimidated the applicant.
This are facts that have to be put before court.
The courts discretion in making the order is wide. The order is granted on a balance of
probability satisfaction15. It is a civil order breach of which is a criminal offence under s. 14
of the Act. Even though the Act provides for criminal consequences for breaching the order
11Stanley Meng Heong Yeo, Fault in Homicide: Towards a Schematic Approach to the Fault Elements for
Murder and Involuntary Manslaughter in England, Australia and India (Federation Press, 1997) 87
12Anne-Maree Farrell et al, Health Law (Cambridge University Press, 2017) 42
13 Crimes (Domestic and Personal Violence) Act 2007 s. 48
14Archana Parashar and Francesca Dominello, The Family Law (Cambridge University Press, 2017) 137
15Mark Findlay, Criminal Law: Problem in Context (Oxford University Press 2006) 248

Criminal Law Offences 7
and may sometimes provide for warrant of arrest it very sketchy and less penal compared to
s. 60 of the Crimes Act. S. 60 of the Crimes Act provide consequences for every violation
and not a generalised punishment as provided in s. 14 of Crimes (Domestic and Personal
Violence) Act 2007. Therefore, it does not matter the weight of the breach, the consequence
is the same. Different breach of the order should have different consequences thus catering
for the weight of the breach.

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Bibliography
Books
Yuka, Sakurai and Russell G Smith. Gambling as a motivation for the commission of
financial crime. (Australian Institute of Criminology, 2003)
Findlay, Mark, Criminal Law: Problem in Context (Oxford University Press 2006)
Stanley, Meng Heong Yeo, Fault in Homicide: Towards a Schematic Approach to the Fault
Elements for Murder and Involuntary Manslaughter in England, Australia and India
(Federation Press, 1997)
Farrell, Anne-Maree et al, Health Law (Cambridge University Press, 2017)
Parashar, Archana, and Francesca Dominello, The Family Law (Cambridge University Press,
2017)
Lanham David et al, Criminal Laws in Australia (Federation Press, 2006)
Lous, Peter Waller and Charles Robert Williams, Criminal Law: Text and Cases
(Butterworths, 2001)
Fairall, Paul and Stanley Meng Heong Yeo, Criminal Law Defences in Australia
(Butterworths, 2005)
Munice, John and Barry Goldson, Comparative Youth Justice (Pine Forge Press, 2006)
Cassese, Antonio et al, International Criminal Law: Cases and Commentary (Oxford
University Press, 2011)
Legislation
Crimes Act 1900 (NSW)
Summary Offences Act 1988 (NSW)
Crimes (Domestic and Personal Violence) Act (2007)