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Updated March 13, 2019 18:07:27

Melbourne man Borce Ristevski has pleaded guilty to manslaughter over the death of his wife Karen Ristevski, whose body was found north-west of Melbourne eight months after she disappeared.

Ristevski, 54, admitted to the killing a day before a Supreme Court jury was expected to be empanelled for his murder trial, which was slated to run for five weeks.

During pre-trial argument on Wednesday, the court found the evidence against Ristevski could not reliably prove he intended to murder her.

While the evidence gathered after his wife's death could prove Ristevski killed her, Justice Christopher Beale said, it could not prove he intended to do so.

The defence argued that Ms Ristevski's death was not murder, but a spontaneous killing.

Ms Ristevski, 47, disappeared from the couple's home in Avondale Heights, in Melbourne's west, in June 2016.

Eight months later, her body was discovered in bushland near Mount Macedon, north-west of Melbourne.

When his wife vanished, Ristevski told police she had gone for a walk to clear her mind after an argument about money, and that she never returned.

An earlier court hearing heard evidence about the family's troubled financial situation, revolving around Ms Ristevski's clothing store Bella Bleu.

Ristevski, who was a pallbearer at his wife's funeral, was charged with murder after an investigation that involved listening devices and CCTV footage analysis.

It was alleged he took Ms Ristevski's Mercedes-Benz car to dispose of the body in bushland, killing the signal of both of their mobile phones on the way.

It was alleged he then dumped his wife's body between two logs and concealed it with branches before returning home.

Her skeletal remains were discovered in Macedon Regional Park. An autopsy could not ascertain the cause of her death.

Ristevski, who had denied killing Ms Ristevski, will appear at a pre-sentence hearing in two weeks.

Case 'strong enough to convict him for murder'

During earlier court hearings, Ristevski's lawyers had argued the murder charge should be abandoned and sought a pre-trial committal hearing on the lesser charge of manslaughter, because no jury could find there was murderous intent.

But prosecutors pushed hard for a murder trial, saying Ristevski's deceitful behaviour after the killing gave rise to the required intent.

They said the actions of concealing the body and lying to family and police were not those of a man who accidentally killed his wife.

The magistrate said the evidence was largely "circumstantial" but that the case was strong enough for a jury to convict him for murder.

In emotional testimony at the committal hearing, the couple's daughter, Sarah Ristevski, said her father was never aggressive toward her mother.
ABC/AAP
Topics: courts-and-trials, law-crime-and-justice, murder-and-manslaughter, crime, melbourne-3000, vic, avondale-heights-3034

First posted March 13, 2019 15:14:35

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Borce Ristevski pleads guilty to killing wife

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Updated March 13, 2019 18:07:27 Melbourne man Borce Ristevski has pleaded guilty to manslaughter over the death of his wife Karen Ristevski, whose body was found north-west of Melbourne eight months after she disappeared. Ristevski, 54, admitted to the killing a day before a Supreme Court jury was expected to be empanelled for his murder trial, which was slated to run for five weeks.

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Borce Ristevski was on Thursday sentenced to a maximum nine years behind bars with a non-parole period of six for the manslaughter of his wife Karen Ristevski.

Given he's already spent 491 days in custody, the 55-year-old could be out on parole by the time he turns 60.

The sentence outraged Karen's family, with her brother saying, "We didn't get justice today, at all."

Justice Christopher Beale spent about 45 minutes laying out his reasons for the sentence in Court 4 of the Supreme Court in Melbourne.

Borce Ristevski was sentenced to nine years in jail on Thursday. Credit:Artists

It was a unique case in that prosecutors could not prove how Karen died. They could not say absolutely she was murdered, nor could they disprove that her husband accidentally killed her before covering up what had happened.

It left the case in a perilous position that was cruelled when the court ruled that Ristevski's conduct after his crime - dumping her body in bushland and weaving a web of lies afterwards - could not prove murderous intent. It meant the murder charge was withdrawn and he pleaded guilty to manslaughter.

Unfortunately, no sentence that I can impose will undo the suffering you have caused, and continue to cause, to those who knew and loved Karen.
Justice Christopher Beale

The main factors behind Justice Beale's sentence were:

Guilty plea

Ristevski first offered a plea of guilty to the lesser charge of manslaughter in September last year, a month after the committal hearing ended. It was not a show of remorse, Justice Beale said, but "as the law recognises" it resulted in a "significant discount" because it spared the family the ordeal of a trial. If it weren't for his plea of guilty, Justice Beale said he would have jailed Ristevski for a minimum of seven years and a maximum of 10.

"In sentencing you, I must do so on the basis that, when you killed your wife, you did not do so with murderous intent (that is, with an intention to kill or cause really serious injury)," he said.

... the discount for your plea of guilty will be less than you might other expect.
Justice Christopher Beale

The seriousness of the crime

Justice Beale said Karen's death was a serious case of domestic violence, but he could not find if the offence was a mid or upper-range example of manslaughter.

"I do not regard your silence as to how you killed your wife as providing a sufficiently firm basis for drawing the inference that yours must have been an upper-range example of the offence of manslaughter," he said.

"Whilst the community and the courts rightly abhor domestic violence, it is simplistic to suppose that all domestic violence manslaughter cases necessarily fall into the upper range on the spectrum of seriousness for manslaughter ...

"Many of the domestic violence homicides that I have looked at involve a history of domestic violence, not an outburst of isolated violence. In that regard, your case is atypical."

Without knowing the level and duration of the violence perpetrated by you ... I simply cannot say whether your offending was mid or upper range.
Justice Christopher Beale

Conduct after the crime

Ristevski dumped his wife's body in bushland and hid it so it was not found for eight months. He then lied about his involvement, even acting as a pallbearer at Karen's funeral. Justice Beale accepted Ristevski's argument that his behaviour after he killed Karen should not overwhelm the sentencing, but it was "still fair to say that your disposal and concealment of Karen's body and the many lies you have told, worst of all to your daughter, constitute a circumstance of significant aggravation".

Ristevski's history

He has no history of domestic violence, nor a criminal history. Justice Beale said Ristevski had good prospects for rehabilitation and, apart from his crime and conduct afterwards, he had been a person of good character.

I accept that, apart from the commission of your crime and your post offence conduct, you have been a person of good character.
Justice Christopher Beale

Victim impact

Though his daughter Sarah did not provide a victim impact statement, Karen's relatives did. Justice Beale said they were powerful and moving. Family relationships were broken, they were haunted by the thought of her being dumped in bushland and will always be left wondering what happened to her.

But Justice Beales said: "No sentence that I can impose will undo the suffering you have caused, and continue to cause, to those who knew and loved Karen."

Tammy Mills is a Crime Reporter for The Age.

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The judge's reasons: Five key factors in Borce Ristevski's sentencing

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Normal text size Larger text size Very large text size Borce Ristevski was on Thursday sentenced to a maximum nine years behind bars with a non-parole period of six for the manslaughter of his wife Karen Ristevski. Given he's already spent 491 days in custody, the 55-year-old could be out on parole by the time he turns 60.

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Just as his five-week murder trial was due to commence and after countless emphatic denials, Borce Ristevski has today sensationally pleaded guilty to the manslaughter of his wife Karen.

Karen went missing in the early hours of June 29, 2016 and her decomposed body was discovered in bushland at Mount Macedon Regional Park eight months later.

Ristevski had staunchly maintained his innocence, insisting his 47-year-old wife had left their Avondale Heights home on foot after an argument and never returned.

After she vanished, he was often emotional when speaking of her and his family shared their bizarre theories about what happened to her - including that Karen skipped Australia on a fake passport.

When her remains were discovered, Ristevski still insisted he was innocent and even carried Karen's coffin out of her funeral service.

At the emotional ceremony, mourners were told in a eulogy of Karen's love for her husband, who was described by friend Anica Naumovski as "the love of her life".

He broke down in tears in the church and wore a pained expression as he joined fellow pallbearers for the walk down the aisle and outside with Karen's coffin on their shoulders.

But since his shock confession, the image of the grieving husband carrying his wife's casket has taken on a chilling new meaning.

Investigators soon grew suspicious and alleged the Melbourne father of two, 54, killed Karen and drove her body in her Mercedes-Benz Roadster to dump it.

And today, he finally confessed to killing his wife in a stunning and unexpected twist, just a day before his murder trial was to begin.

Ristevski told police he only drove the car to get petrol, changing his mind when the faulty fuel gauge showed it wasn't needed. He claimed he kept driving towards his wife's dress store Bella Bleu but missed the turn-off so decided to return home.

But detectives alleged he lied about his movements and turned off his and Karen's mobile phones that day to avoid detection.

In a committal hearing last year, a forensic pathologist described the injuries sustained by Karen. Professor Stephen Cordner told the court she had an irregular break in her hyoid bone - a bone in the neck - that could have been the result of blunt force trauma.

He said it was difficult to say exactly what happened to Karen because her body was found so long after her disappearance.

Ahead of the trial, prosecutors had compiled a 22,000-page evidence brief, including CCTV footage of what they alleged was Ristevski driving his wife's car to dump the body.
RELATED: Borce Ristevski's daughter never stopped believing his story
A computer systems and digital imagery expert testified at a committal hearing last year that the CCTV footage taken near Diggers Rest shows a car like Ms Ristevski's.

The footage was blurry but Dr Matthew Sorell, a lecturer in telecommunications and multimedia engineering at the University of Adelaide, said the driver in question had features "broadly consistent" with Borce Ristevski.

"I would note the short hair, coloured light grey," he said.

In the days after Karen went missing, a neighbour told police that "yelling and screaming" could be heard coming from the Ristevski home.

As police began to dig into possible motives, they found mountains of debt that had plagued the couple.

Gerard Curtin from Victoria Police was tasked with investigating the financial situation of Ristevski, his wife Karen and the couple's fashion store, Bella Bleu.

At a committal hearing last year Mr Curtin said the business "had serious cash flow issues" and could not cover "rent, wages and stock".

"You'll see there was a constant struggle," he told the court.

The couple was in a dire financial situation. Their Avondale Heights home had been refinanced twice in 2013 via loans totalling $750,000.

By June 30, 2016, the couple had managed to reduce the loans by only $8000, the court heard.

Bella Bleu had lost more than $320,000 over four years and the Ristevskis also had several loans and a credit card debt of more than $80,000.

On Wednesday, the day before his Supreme Court murder trial was due to commence, Ristevski dramatically confessed and pleaded guilty to a lesser charge of manslaughter.

A pre-sentence hearing is now set down for March 27.
- with AAP

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Borce Ristevski pleads guilty to killing wife Karen Ristevski

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Just as his five-week murder trial was due to commence and after countless emphatic denials, Borce Ristevski has today sensationally pleaded guilty to the manslaughter of his wife Karen. Karen went missing in the early hours of June 29, 2016 and her decomposed body was discovered in bushland at Mount Macedon Regional Park eight months later.

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Updated August 02, 2018 12:13:32

Borce Ristevski has been committed to stand trial for the murder of his wife Karen Ristevski.

Prosecutors allege the 54-year-old killed Ms Ristevski, 47, at their Avondale Heights home in Melbourne's west in June 2016.

Her body was found in February 2017 in bushland near Mount Macedon, north-west of Melbourne.

Mr Ristevski has always maintained his innocence, and today re-entered a plea of not guilty.

Defence lawyers had argued for the murder charge to be downgraded to manslaughter.

But Magistrate Suzanne Cameron said although the evidence was circumstantial, the prosecution had given sufficient evidence about Mr Ristevski's alleged behaviour after his wife's disappearance that showed there could be murderous intent.

"I must take the prosecution case at its highest," she said.

"Given the nature, extent and duration of the post-offence conduct, I'm of the view that it would be open to a jury to find that Mr Ristevski caused the death of Karen Ristevski and had murderous intent," she said.

The magistrate said it wasn't her job to take the role of the Supreme Court Justice who would be instructing the jury by downgrading the charge at this stage.

During the two-week committal hearing, the court heard evidence that the couple would fight often about their financial situation.

Their clothing business was in serious trouble at the time of Ms Ristevski's disappearance, and the couple's debts amounted to hundreds of thousands of dollars, the court heard.

The committal hearing heard Mr Ristevski told police that on the morning his wife disappeared, the couple had fought over money before Ms Ristevski went out for a walk to "clear her head".

Initially he had told police he had worked from home that day.

Borce Ristevski's alibi disputed by police

It was not until several days after Ms Ristevski's disappearance that Mr Ristevski told police that he had used his wife's car, a black Mercedes, on the day she went missing.

He said he drove towards the Calder Freeway from his home to fill the car up with petrol but then decided against it.

He said he then went to check on the couple's clothing store Bella Bleu, at the Watergardens Shopping Centre, but missed the turn off so decided to return home.

But police allege Mr Ristevski was driving to Mount Macedon to dispose of his wife's body, and his story that he went for a drive to get petrol was fabricated.

In witness statements from Ms Ristevski's aunt, Patricia Gray, tendered to the court, she said she found his story to be 'flimsy' and 'hard to fathom'."

The committal hearing also heard telecommunications data showed both of the couple's mobile phones were detected leaving the Avondale Heights area on the morning Ms Ristevski disappeared.

Ms Ristevski's phone was switched off about 11:40am, while Mr Ristevski's phone was switched off shortly after.

Mr Ristevski's defence team has told the court there was no history of violence in the relationship and Mr Ristevski stood to gain nothing financially from his wife's death.

Ms Ristevski did not have a life insurance policy, the court heard.

Topics: murder-and-manslaughter, crime, law-crime-and-justice, courts-and-trials, avondale-heights-3034, melbourne-3000, vic

First posted August 02, 2018 10:41:31

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Borce Ristevski to stand trial for wife's murder

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Updated August 02, 2018 12:13:32 Borce Ristevski has been committed to stand trial for the murder of his wife Karen Ristevski. Prosecutors allege the 54-year-old killed Ms Ristevski, 47, at their Avondale Heights home in Melbourne's west in June 2016. Her body was found in February 2017 in bushland near Mount Macedon, north-west of Melbourne.

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live The Sydney Sixers stunning last start loss has reignited the war of words over the integrity of the T20 game when weather intervenes. live Serena Williams took pity on an optimistic journalist at the Australian Open when she was hit with a difficult question about close friend Meghan Markle.

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Community corrections involves the management and supervision of offenders in the community. These offenders are serving court-imposed orders either as an alternative to imprisonment or as a condition of their release on parole from prison. This means they must report regularly to their community corrections officer and may have to participate in unpaid community work and rehabilitation programs.

Community corrections plays a vital role in ensuring the safety of the community by rehabilitating offenders and diverting low-risk offenders from prison which helps to break the cycle of reoffending.

Community Correctional Services (CCS), a division of Corrections Victoria, oversees the delivery of community corrections in Victoria.

Community corrections officers (CCOs) manage offenders and are responsible for ensuring they comply with the conditions of their orders. Conditions may include participating in:

appropriate educational programs

community work

assessment and treatment programs

Download a map of the locations of all prisons and community corrections offices in Victoria.

In 2017-18, 686,919 hours of mandatory community work was completed. More than 900+ organisations benefited from the offenders' work and skills.

Find out how to become a community partner and run a community program.

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Community corrections involves the management and supervision of offenders in the community. These offenders are serving court-imposed orders either as an alternative to imprisonment or as a condition of their release on parole from prison.

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There are many people involved in the court system. Below is a list of some of the people you might meet if you are required to attend court:

Accused
The person against whom a criminal case is brought. Sometimes referred to as the defendant.

Associate Judge (Supreme Court)
The person who generally carries out the judicial function of hearing and determining issues which arise before and after trial in civil cases. Associate Judges do not hear trials.

Barrister
A legal advocate who is briefed by a solicitor to present the defence or prosecution case in court.

Bench clerk (Magistrates', Coroners and Children's Court)
Sits near the magistrate or coroner, and announces the cases and calls people into court. The bench clerk will direct people where to stand, read the charges out in a criminal proceeding and administer the oath or affirmation to witnesses.

Defence Solicitor or Duty Solicitor
The person who represents the accused in court. If the accused does not have a solicitor, they may be entitled to representation by a duty solicitor.

Informant
In criminal cases, this is the police officer who charged the defendant. In coronial inquests, this is the police officer who investigated on behalf of the coroner. In some cases, the informant is a council officer or other government official.

Judge
The person who hears cases and makes decisions in the County Court and Supreme Court. If a judge and a jury hear the case, the judge will be responsible for directing the jury about the law. If the accused is found guilty, the judge will impose the sentence.

In Victoria, the State Coroner is also a judge. When you speak to a judge, you should address them as 'Your Honour'.

Judge's Associate (Supreme, County and Coroners Courts)
Performs various administrative and court duties to assist the judge. These duties may include completing paperwork, liaising with parties, keeping a record of court proceedings, and taking verdicts or findings in coronial hearings.

Magistrate
The person who hears cases and makes decisions in the Magistrates' Court and Children's Court. They decide what happens to a case, whether a case will have to go to another court or be put off until another day, whether the defendant is guilty or not guilty, and any penalty that will be given to the defendant. Some coroners are also magistrates.

When you speak to a magistrate or coroner, you should address them as 'Your Honour'.

Plaintiff, complainant or applicant
The person who initiates the case in a non-criminal (civil) matter.

Prosecutor
The person who appears in court to present the case against the defendant in a criminal hearing. Cases in the Magistrates' Court and Children's Court are usually prosecuted by a police officer. Cases in the higher courts are usually prosecuted by the Office of Public Prosecutions.

Registrar
The manager/administrator of the court. It will be a registrar or deputy registrar (or member of the registry staff) who will assist you at a court counter.

Respondent
The person against whom a civil case is brought.

Tipstaff (Supreme and County Courts)
Announces that the court is in session and administers oaths or affirmations to witnesses. An important duty of the tipstaff is to look after the jury. He or she escorts jury members into the courtroom and into the jury room, and deals with any practical matters for the jury.

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There are many people involved in the court system. Below is a list of some of the people you might meet if you are required to attend court: Accused The person against whom a criminal case is brought. Sometimes referred to as the defendant.

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General duties policework is a rich and rewarding career, as well as the gateway to other specialist roles and areas. It allows you to meet and help people of all walks of life.

Duties of a police officer

A general duties officer is a first responder at any reportable crime or public need, 24 hours a day, seven days a week. They provide a vital service to the community and are a key part of Victoria Police.

General duties policing is vital to protect the community, as well as set and uphold .

As a general duties officer your duties will change every day, and is a rich and rewarding role like no other.

Should you wish, it can also first step in your journey to other . are typically required to complete a minimum of 2-4 years in general duties prior to applying for these areas.

General duties requirements

Your every day will be different as a general duties officer.

Out in the field

You will be required to undertake a range of duties including:

prevent anti-social behaviour

deal with community safety concerns

resolve disputes

attend accidents

investigate crime

enforce traffic law

deal with drug and alcohol affected people

attend critical incidents and emergencies.

Administrative tasks

You are also required to perform administrative duties such as:

submit paperwork on jobs you attend

keep an ongoing diary of the duties you perform during each shift

prepare paperwork for courts

attend court hearings

give evidence in court.

Community engagement

You may also be required to do community engagement tasks such as:

attend community events

talk to and assist vulnerable members of the community

general interaction with the community members of diverse backgrounds

build positive relationships with community groups and members.

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General duties police officers | Roles and duties of a police officer | Victoria Police

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Police Officers perform duties that are diverse, stimulating and challenging. Explore and apply for roles and careers within the Victorian Police force.

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23.1.2 - Child accused between 10-13 years - doli incapax

At common law, the doli incapax rule applies to a child accused who is aged under 14 but not under the age of 10 years. The words " doli incapax" mean "incapable of crime" ( R v ALH (2003) 6 VR 276, [75]).

The rationale for the presumption of doli incapax is that a child under 14 years of age is "not sufficiently intellectually and morally developed to appreciate the difference between right and wrong". Therefore, a child aged under 14 lacks the capacity for mens rea ( RP v The Queen [2016] HCA 53, [8]).

In RP v The Queen [2016] HCA 53, the majority of the High Court of Australia (Kiefel, Bell, Keane and Gordon JJ) examined the presumption of doli incapax and its development (at [8]-[12]) and noted:

the presumption of doli incapax may be rebutted by evidence that the child knew that it was "morally wrong to engage in the conduct that constitutes the physical element or elements of the offence" [8]-[9];

knowledge of the "moral wrongness of an act or omission is to be distinguished from the child's awareness that his or her conduct is merely naughty or mischievous." This distinction may be captured by stating the requirement, in terms of proof, that the child knew the conduct was "seriously wrong" or "gravely wrong" [9];

the presumption of doli incapax cannot be rebutted "merely as an inference from the doing of that act or those acts", no matter how obviously wrong the act(s) may be (cf. R v ALH (2003) 6 VR 276, [86]). The prosecution must rely on more than the circumstances of the offences, and adduce "evidence from which an inference can be drawn beyond reasonable doubt that the child's development is such that he or she knew that it was morally wrong to engage in the conduct" [9].

Rebutting the presumption of doli incapax in each case will depend on the intellectual and moral development of the subject child, as children do not mature uniformly. For example, while some 10 year old children will understand the serious wrongness of their actions, other 13 year old children will not have that capacity ( RP v The Queen [2016] HCA 53, [12]).

While Cummins AJA and Callaway JA disproved of the term "presumption" in categorising doli incapax in R v ALH (2003) 6 VR 276, these views have not been reiterated in subsequent cases. Doli incapax continues to be referred to as a "presumption" by appellate courts (see, eg, DPP v Martin (a pseudonym) [2016] VSCA 219; BP v R, SW v R [2006] NSWCCA 172; RP v The Queen [2016] HCA 53).

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23.1.2 - Child accused between 10-13 years - doli incapax

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23.1.2 - Child accused between 10-13 years - doli incapax At common law, the doli incapax rule applies to a child accused who is aged under 14 but not under the age of 10 years. The words " doli incapax" mean "incapable of crime" ( R v ALH (2003) 6 VR 276, [75]).

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As part of CRIN's policy work on the minimum age of criminal responsibility (MACR), we monitor these ages around the world. This page provides detailed information on MACRs in Europe.

If you are aware of any inaccuracies in this information or reforms underway to amend the relevant laws, please contact us at [email protected] .

You can also keep up to date with the latest children's rights news by subscribing to our weekly email newsletter, CRINmail.

Albania.

No person who is younger than 14 at the time he or she commits a criminal offence can be held "criminally responsible" for that offence. This age limit applies to more serious offences under the Criminal Code, those designated "crimes". Children can be held responsible for "criminal contraventions" from the age of 16. Criminal contraventions are less serious offences designated as such under the Criminal Code. [ Criminal Code, Article 12]

Andorra.

No person can be held liable for a criminal offence committed while they were under the age of 12. [ Qualified Law on Juvenile Justice 1999, Article 3]

Armenia.

Persons aged 16 years or older may be held criminally liable for all crimes and children aged 14 years or older may be held criminally liable for certain named offences. [Criminal Code, Article 24(1) and (2)]

Austria.

No person who was under the age of 14 at the time he or she committed an offence can be subject to punishment. A person aged 14 or 15 cannot be subject to criminal penalties where his or her misconduct is not "serious" and where the application of juvenile justice is not necessary to prevent young people from criminal acts. [ Jugendgerichtsgesetz (Youth Court Act), Sections 1(1)-(2) and 4(2)]

Azerbaijan.

Children aged 16 years or older may be held criminally liable for all crimes and children aged 14 years or older may be held criminally responsible for certain named offences. Administrative Commissions may consider the cases of all children younger than 14 years of age and impose disciplinary measures including detention within "special correctional schools". [ Criminal Code, Article 20(1) and (2) and Cipriani, Criminal Liability and the Minimum Age of Criminal Responsibility: A Global Perspective, 2009, p. 98]

Belarus.

Children can be held criminally responsible for all offences from the age of 16 and for a large number of specifically named offences from the age of 14. Though offences for which a lower minimum age of criminal responsibility applies are generally violent in nature, offences such as hooliganism and theft are also included. [ Penal Code, Article 27]

Belgium.

Children can be held criminally liable from the age of 12. [Loi relative à la protection de la jeunesse, à la prise en charge des mineurs ayant commis un fait qualifé infraction et à la réparation du dommage causé par ce fait, as per Cipriani, p. 191]

Bosnia and Herzegovina.

Persons under 14 years of age at the time an offence was committed cannot be held criminally liable. [ Criminal Code, Article 8]

Bulgaria.

Persons under the age of 14 cannot be held criminally responsible, though they may be subject to educational measures where they have committed socially dangerous acts. A person aged 14 to 18 can only be held criminally liable if he or she was able to understand the nature and meaning of the act and manage their actions. [ Criminal Code, Articles 31(2) and 32(1)-(2)]

Croatia.

No person can be tried for an offence committed while under the age of 14, and any case involving a person under that age must be dealt with by the Centre for Social Welfare. [ Juvenile Courts Act, Article 44; Criminal Code, Article 10]

Cyprus.

Children under the age of 14 cannot be held criminally responsible. [Criminal Code (Amendment) Law No. 1 8(I)/2006. As per UN Committee on the Rights of the Child, Concluding Observations on Cyprus' combined third and fourth reports]

Czech Republic.

No person who was under the age of 15 at the time he or she is alleged to have committed an offence can be held criminally liable. [Criminal Code, Provision 11]

Denmark.

No one can be held criminally responsible for an action committed while under the age of 15. This age was lowered to to 14 in July 2010, but subsequently raised to 15 in March 2012. [ Criminal Code, Section 15. Please note, the Code has been amended since this translation was produced. UPR Submission of the National Council for Children.]

Estonia.

A child under the age of 14 at the time he or she allegedly committed a criminal act cannot be held criminally responsible. However, children aged seven or older who commit unlawful acts may be subject to sanctions under the Juvenile Sanctions Act, including committal to a "young offenders' institution". [ Criminal Code, Section 33; Juvenile Sanctions Act 1998, Sections 2 and 3(9)]

Finland.

Children under 15 years cannot be held criminally liable for any offence. Measures that can be applied to children under 15 are contained within the Child Welfare Act. The courts have the power to waive punishment of an offence committed by a person under 18 years of age, where "the act is deemed to be the result of his/her thoughtlessness or imprudence rather than his/her being heedless of the prohibitions and commands of the law" [Penal Code, Ch. 3, Section 4(1); Ch. 6, Section 12]

France.

Persons under the age of 18 "able to understand what they are doing" are criminally responsible for the felonies, misdemeanours or petty offences of which they have been found guilty, and may be subject to measures of protection, assistance, supervision and education according to the conditions laid down by specific legislation. There is no absolute minimum age set at which children become able to be held criminally responsible, but a child will usually be considered to have "discernment" between the ages of 8 and 10.

Children aged 13 to 18 years can be criminally sentenced, including to prison terms and children aged 16 to 18 can in certain circumstances be subjected to adult sentences. [ Criminal Code, Article 122-8; Ministry of Foreign and European Affairs, " Juvenile Justice in France " May 2008]

Georgia.

No person under the age of 14 at the time an alleged offence was committed can be held criminally responsible. The State lowered the minimum age to 12 in 2008, but has since reinstated it at 14.[Criminal Code, Article 80(1)]

Germany.

No one who was younger than 14 at the time an alleged offence was committed can be held criminally responsible. [ Criminal Code, Section 19] Children aged 14 to 18 can be criminally liable where at the time of the offence, he or she was mature enough to see the injustice of the act and to act upon this knowledge. [Jugendgerichtsgesetz (Juvenile Courts Act), Sections 1 and 3]

Greece.

Children between the ages of 8 and 13 cannot be held criminally liable for an offence, and can only be subject to educational or therapeutic measures for committing acts that would be criminal offences for an older person. Children aged 13 to 15 at the time of committing a criminal act may only be subject to reformatory or therapeutic measures, and a child aged 15 to 18 may be sentenced to penalties including deprivation of liberty. [Criminal Code, Articles 126 and 127]

Hungary.

People can be held criminally responsible for any offence committed from the age of 14, and from the age of 12 for homicide, voluntary manslaughter, battery, robbery and plundering, provided that the child had the capacity to understand the nature and consequences of his or her act. [ Criminal Code, Section 16]

Iceland.

No person can be punished for an offence committed whilst under the age of 15. [ Penal Code, Article 14]

Ireland.

Persons under the age of 12 cannot generally be held liable for any criminal offence, but children aged 10 or 11 can be held criminally liable for murder, manslaughter, rape, rape under section 4 of the Criminal Law (Rape) (Amendment) Act 1990 or aggravated sexual assault.

Where a child under the age of 14 years is charged with a criminal offence, no further proceedings can be taken without the consent of the Director of Public Prosecutions. [ Children Act 2001, Section 52(1) and (2); Citizens Information Ireland]

Italy.

Children under the age of 14 cannot be held criminally liable for any offence and persons aged 14 to 17 (inclusive) can only be held criminally liable where they have been judged capable of forming the necessary criminal intent in relation to the specific offence. [ Criminal Code, Articles 97 and 98]

Latvia.

A person cannot be held criminally liable for an offence allegedly committed while under the age of 14. [ Criminal Code, Section 11]

Liechtenstein.

Persons under the age of 14 at the time an offence was committed cannot be held criminally liable. [Jugendgerichtsgesetz (Juvenile Court Act) 1998, Section 2(1) and (2)]

Lithuania.

Generally, a person can only be held responsible for a crime or misdemeanour if he or she has attained the age of 16. Persons aged 14 or older can be found guilty of a number of specific offences named under Article 13(2) of the Criminal Code. These offences include murder; serious impairment to health; rape; sexual harassment; theft; robbery; extortion of property; destruction of or damage to property; seizure of a firearm, ammunition, explosives or explosive materials; theft, racketeering or other illicit seizure of narcotic or psychotropic substances; damage to vehicles or roads and facilities thereof. [ Criminal Code, Article 13(1) and (2)]

Luxembourg.

The Law on the Protection of Children (Loi du 10 Août 1992 relative à la protection de la jeunesse) provides that generally persons under 18 must be dealt with by the youth courts, where measures taken are aimed at protection, care, therapy and education. [ Loi du 10 août 1992 relative à la protection de la jeunesse, Articles 1 and 2]

However, children can be directed to the adult courts and subject to adult penalties from the age of 16. Furthermore, the powers of the Youth Court are in some circumstances of a penal or correctional nature, including deprivation of liberty generally and solitary confinement of up to 10 days. There is no lower age limit for these measures. [Loi du 10 août 1992 relative à la protection de la jeunesse, Article 32 and Cipriani, Children's Rights and the Minimum Age of Criminal Responsibility: A Global Perspective, 2009, p. 212]

Macedonia, Former Yugoslav Republic of.

Criminal sanctions may not be applied to persons younger than fourteen years at the time they committed an offence. [ Criminal Code, Article 71]

Malta.

Children under 14 cannot be held criminally responsible. [Criminal Code, Article 35(1) as amended in 2014]

Moldova.

Children can be held criminally liable for all offences committed from the age of 16 onwards and for certain named offences from the age of 14. [ Criminal Code, Article 21(1) and (2)]

Monaco.

No person can be held criminally liable for an offence committed while under the age of 13. [CRC/C/28/Add.15, 17 July 2000, para. 37]

Montenegro.

No person can be subject to criminal sanctions for the commission of a criminal offence while under the age of 14. [ Criminal Code, Article 80]

Netherlands.

Children can be held criminally liable for offences committed from the age of 12. [ Code of Criminal Procedure, Section 486]

Norway.

No person can be punished for an offence committed while under the age of 15. [ General Civil Penal Code, Section 46]

Poland.

Any person aged 17 or over is liable to be tried for any criminal offence under the Criminal Code. For offences specifically listed in Art. 10(2) children can be tried from the age of 15. [ Penal Code, Art. 10]

Portugal.

Persons under the age of 16 cannot be held criminally liable. Persons aged between 12 and 16 can be subject to penalties under the Guardianship and Education Law, which allows for the detention of children in closed educational centres. [Criminal Code, Article 19; Lei Tutelar Educativa 1999 (Guardianship and Education Law), Articles 1 and 4]

Romania.

No one under the age of 14 can be held criminally liable. A child aged 14 to 16 can only be held criminally liable where it can be proved that he or she had "discernment". Children over the age of 16 are held criminally liable "within the framework of the system of sanctions applicable to minors". [Criminal Code, Article 113(1)-(3)]

Russian Federation.

A child can be held criminally liable for any offence committed from the age of 16. A person aged 14 or older can be held criminally liable for a number of offences specifically listed in Article 20(2) of the Criminal Code. [ Criminal Code, Article 20(1) and (2)]

San Marino.

No person under the age of 12 can be charged with a criminal offence. [Criminal Code, Article 10]

Serbia.

No person can be subjected to criminal sanctions for an offence committed while under the age of 14. [Law on Juvenile Criminal Offenders and Criminal Protection of Juveniles, Article 2; Criminal Code, Article 4(3)]

Slovakia.

Any person under the age of 14 upon committing what would otherwise be a criminal offence may not be held criminally liable. No one may be held criminally liable for sexual abuse if he or she has not reached the age of 15. [Criminal Code, Section 22(1) and (2)]

Slovenia.

Children under the age of 14 cannot be sentenced to criminal penalties. Children under the age of 14 criminal responsibility can, however, be committed to juvenile institutions equivalent to those used for older children in conflict with the law. [ Penal Code, Article 71; Filipcic, Katja, "Slovenia: Dealing with Juvenile Delinquents in Slovenia," 75 International Review of Penal Law (Revue internationale de droit pénal) 493, 2004]

Spain.

No child can be held criminally responsible for an act committed while under the age of 14, but younger children who carry out what would otherwise be a criminal act can be subject to protection measures. [ Organic Law 5/2000 of 12 January, on the criminal responsibility of minors, Articles1(1) and 3]

Sweden.

No person can be subjected to a criminal sanction for an offence committed while under the age of 15. [ Criminal Code, Ch. 1, Section 6. Note, this legislation has been amended since this translation was produced.]

Switzerland.

No person can be subject to criminal penalties for acts committed while under the age of 10. [ Loi f édérale régissant la condition pénaledes mineurs, 2003, Article 3(1)]

Turkey.

No child under the age of 12 on the day that an alleged offence was committed can be held criminally liable. No child between the ages of 12 and 14 (inclusive) when an offence is alleged to have been committed who did not "have the ability to perceive the legal meaning and consequences of the offence, or to control [his or her] actions" may be held criminally responsible. [ Criminal Code, Article 31(1) and (2)]

Ukraine.

Generally, any person who commits a criminal offence from the age of 16, can be held criminally liable. Persons who have committed a number of specifically listed offences can be held criminally liable from the age of 14. These offences are largely violent in nature, but also include certain property offences. [ Criminal Code, Article 22(1) and (2)]

United Kingdom.

England and Wales.

Children can be held liable for criminal offences from the age of 10. [ Children and Young Persons Act 1933, Section 50]

Northern Ireland.

No child under the age of 10 can be found guilty of a criminal offence. [ Criminal Justice (Children) (Northern Ireland) Order 1998, Article 3]

Scotland.

No child under the age of eight can be found guilty of any criminal offence, but no person under the age of 12 may be prosecuted for an offence and a person aged 12 or older may not be prosecuted for an offence committed while under the age of 12.[ Criminal Procedure (Scotland) Act, Sections 41 and 41A(1)-(2)]

The gap between the minimum age of prosecution and the minimum age of criminal liability means that criminal offences committed between the age of 8 and 12 may be included on a child's criminal record, though a prosecution may not take place. As of July 2013, the Scottish Government said it "[would] consider calls for the minimum age of criminal responsibility to increase". [The Herald Scotland, " Dismay as reform fails to stop criminal records for children " 1 July 2013]

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Minimum Ages of Criminal Responsibility in Europe

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As part of CRIN's policy work on the minimum age of criminal responsibility (MACR), we monitor these ages around the world. This page provides detailed information on MACRs in Europe. If you are aware of any inaccuracies in this information or reforms underway to amend the relevant laws, please contact us at [email protected] .

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What is a public authority?

A 'public authority' includes:

entities established by legislation that have functions of a public nature

entities that carry out functions of a public nature on behalf of a public authority.

In determining whether a person is carrying out functions of a public nature, it is relevant to consider whether:

the function is conferred by legislation

the function is connected to or generally identified with the functions of government

the function is regulatory in nature

the entity is publicly funded to perform the function

the entity performing the function is a company all of the shares in which are held by or on behalf of the state.

Parliamentary committees, courts and tribunals are only 'public authorities' for the purposes of the Charter when they are acting in an administrative capacity, otherwise they are excluded from the obligations imposed on public authorities. Issuing warrants and listing cases are examples of the administrative role of a court or tribunal. The decisions made by a judge about the outcome of a hearing is a judicial function and not an administrative one.

Parliament is also excluded from the definition of 'public authority' under the Charter.

An entity can also be expressly declared to be, or not to be, a public authority by regulation. The Adult Corrections Board, the Youth Residential Board, and the Youth Parole Board have been declared not to be a public authority by regulations that expire on 27 December 2013.

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Victoria's Charter of Human Rights and Responsibilities

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A 'public authority' includes: entities established by legislation that have functions of a public nature entities that carry out functions of a public nature on behalf of a public authority.

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Click here to obtain a Word version of this document.

Introduction

1. Prior to 2005, self-defence in Victoria was governed solely by the common law. This situation was first altered by the passage of the Crimes (Homicide) Act 2005, which introduced two statutory self-defence provisions into the Crimes Act 1958: one for use in murder cases (s9AC) and the other for use in manslaughter cases (s9AE).

2. The provisions of the Crimes (Homicide) Act 2005 commenced operation on 23 November 2005, and applied to offences committed on or after that date (Crimes Act 1958 s603).

3. The provisions replaced the common law in the relevant areas (Babic v R (2010) 28 VR 297), so that common law self-defence is not available for charges of murder, manslaughter, defensive homicide, attempted murder or attempted defensive homicide where such are alleged to have been committed on or after 23 November 2005:

4. The provisions of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 commenced operation on 1 November 2014 and apply to offences alleged to have been committed on or after that date (Crimes Act 1958 s623).

5. As a result of these legislative changes, common law self-defence may be raised only when:

The accused is charged with an offence other than the homicide offences listed above, and such offence was alleged to have been committed before 1 November 2014; or

The accused is charged with one of those homicide offences listed above, and such offence was alleged to have been committed before 23 November 2005.

6. This topic outlines the common law defence of self-defence. For information concerning the statutory provisions, see Statutory Self-Defence and Statutory Self-Defence (Pre-1/11/14) and Defensive Homicide.
When to Charge the Jury about Self-Defence

7. The judge must direct the jury about self-defence if the accused indicates that self-defence is in issue or if there are substantial and compelling reasons to direct on self-defence in the absence of any request (Jury Directions Act 2015 ss14 - 16). See Directions under Jury Directions Act 2015.

8. The issue of self-defence could be held to arise if there was any evidence from which the jury might infer that the accused acted in self-defence (R v Kear [1997] 2 VR 555; R v Imadonmwonyi [2004] VSC 361).

9. To see if there was any such evidence, a judge could look not only to the direct evidence, but also to whether a circumstantial case could fairly be made out to support the claimed defence (R v Kear [1997] 2 VR 555; R v Imadonmwonyi [2004] VSC 361).

10. At common law, if there was evidence on which self-defence could be found, the trial judge was required to leave the issue to the jury even if the judge considered the plea to be "weak or tenuous" (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Kear [1997] 2 VR 555; R v Muratovic [1967] Qd R 15; R v Kell & Dey (Ruling No. 1) [2008] VSC 518).

11. Where there was sufficient evidence to raise the possibility of self-defence, the judge was required to instruct the jury about it even if the factual basis for the defence was inconsistent with the accused's version of events at trial (R v Kear [1997] 2 VR 555; R v Kell & Dey (Ruling No. 1) [2008] VSC 518).

12. These common law principles may be relevant to the operation of the residual obligation to give directions under Jury Directions Act 2015 s16, but must be read in light of the whole of Part 3 of the Act.
Elements of Common Law Self-Defence

13. The High Court has defined the test for self-defence, for both homicide and non-homicide cases, as follows:
The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he [or she] did ( Zecevic v Director of Public Prosecutions (1987) 162 CLR 645 at 661 per Wilson, Dawson and Toohey JJ).

14. There are two elements to this test:

1. The accused must have believed at the time that s/he committed the relevant act that what s/he was doing was necessary (known as the "subjective element"); and

2. That belief must have been based on reasonable grounds (known as the "objective element").

15. Once the question of self-defence is put in issue, the onus is on the prosecution to disprove at least one of these elements beyond reasonable doubt. If the prosecution fail to disprove at least one of these elements the accused will be entitled to an acquittal (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; Viro v R (1978) 141 CLR 88; Dziduch v R (1990) 47 A Crim R 378; R v Alpagut 27 July 1989 (NSWCCA)).
Belief in Necessity (The Subjective Element)

16. At the time the accused committed the relevant act, s/he must have believed that what s/he was doing was necessary (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Wills [1983] 2 VR 201).

17. This is a subjective test. It does not involve a consideration of what a reasonable or ordinary person would have believed in the circumstances, but rather what the accused believed (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; Viro v R (1978) 141 CLR 88; R v Conlon (1993) 69 A Crim R 92 (SC NSW)).

18. For this element to be satisfied, it does not matter if the accused's belief was mistaken, as long as it was genuinely held (R v McKay [1957] VR 560).

19. If the accused was intoxicated at the time he or she committed the relevant acts, this can be taken into account when determining whether he or she believed his or her actions to be necessary (R v Conlon (1993) 69 A Crim R 92 (NSWSC); R v Katarzynski [2002] NSWSC 613. See "Intoxication" below for further information).

20. The determination of whether the accused believed that his or her actions were necessary incorporates two questions: first, whether the accused believed it was necessary to defend himself or herself at all and, secondly, whether the accused believed it was necessary to respond as he or she did given the threat as s/he perceived it (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645).

21. The proportionality of the accused's response to the harm threatened is just one factor to take into account in determining whether the accused believed that his or her actions were necessary (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Portelli (2004) 10 VR 259. See "Proportionality" below).

22. There is no rule requiring the accused to retreat from an attack rather than defend himself or herself. However, a failure to retreat is a factor to be taken into account in determining whether the accused believed that what was done was necessary (as well as in determining whether that belief was based on reasonable grounds - see below) (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Howe (1958) 100 CLR 448).

23. If the accused acted under the pretence of defending himself or herself to attack another or retaliate for a past attack, then this element will not be met. Factors such as a failure to retreat when possible or a highly disproportionate response might indicate an intention to use the circumstances for aggression or retaliation rather than for self-defence.
Belief on Reasonable Grounds (The Objective Element)

24. The accused's belief that what he or she was doing was necessary must have been based on reasonable grounds. That is, it must have been a belief which the accused might reasonably have held in all the circumstances (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Wills [1983] 2 VR 201).

25. In determining whether the accused's belief was based on reasonable grounds, the jury may take into account the following matters:

The surrounding circumstances (R v Wills [1983] 2 VR 201);

All of the facts within the accused's knowledge (R v Wills [1983] 2 VR 201);

The relationship between the parties involved (R v Hector [1953] VLR 543);

The prior conduct of the victim (R v Besim (2004) 148 A Crim R 28);

The personal characteristics of the accused, such as:

Any deluded beliefs he or she held (Grosser v R (1999) 73 SASR 584; R v Walsh (1991) 60 A Crim R 419 (Tas SC));

Any excitement, affront or distress he or she was experiencing (R v Wills [1983] 2 VR 201);

The proportionality of the accused's response (Zecevicv Director of Public Prosecutions (1987) 162 CLR 645; R v Portelli (2004) 10 VR 259. See "Proportionality" below);

The accused's failure to retreat (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Howe (1958) 100 CLR 448).

Other Relevant Considerations

Intoxication

26. Evidence of intoxication may be relevant to the subjective element of self-defence (belief in necessity). If the accused was intoxicated at the time he or she committed the relevant acts, the jury can take this into account when determining whether he or she believed:

That an occasion for the use of force had arisen; or

That the use of force was necessary (R v Conlon (1993) 69 A Crim R 92 (NSWSC); Bedi v R (1993) 61 SASR 269; Ninness v Walker (1998) 143 FLR 239; R v Katarzynski [2002] NSWSC 613).

27. It is unclear whether evidence of intoxication is also relevant to the objective element (in the absence of any statutory modifications). [1] This issue has not yet been addressed in Victoria, and courts in other jurisdictions have divided on the issue of whether the jury, in determining whether the accused's belief was based on "reasonable grounds", must take into account any personal characteristics of the accused (including his or her state of intoxication) which might have affected:

His or her appreciation of the gravity of the threat faced; and

The reasonableness of his or her response to that threat (compare R v Conlon (1993) 69 A Crim R 92; R v Katarzynski [2002] NSWSC 613 with Ninness v Walker (1998) 143 FLR 239; R v McCullough [1982] Tas R 43).

Where the Accused Initiated the Aggression

28. However, there is no rule to prevent self-defence being raised when the accused originated the attack, as long as the original aggression had ceased to create a continuing situation of emergency that provoked a lawful attack on the accused. Any initial aggression by the accused will form part of the whole of the surrounding circumstances to be taken into account in determining whether accused had a belief, on reasonable grounds, in the necessity of his or her actions. (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645).

29. Where it is alleged that the accused was the initial aggressor, the jury will need to consider all the circumstances as perceived by the accused, including, for example, the extent to which the accused declined further conflict, stopped using force, was defeated, faced a disproportionately escalated level of force in response, or attempted to retreat (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Portelli (2004) 10 VR 259; Ruben Anandan v R [2011] VSCA 413; see also R v Lawson and Forsythe [1986] VR 515 (Ormiston J)).
Defence Against Lawful Force

30. Common law self-defence is not limited to defending against unlawful attacks (cf. statutory self-defence). It is possible to raise the defence even if the accused was responding to the lawful use of force (such as a lawful arrest) (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645).

31. However, it will only be in an unusual situation that a lawful attack will provide reasonable grounds for acting in self-defence. This is because where an accused creates a situation in which force might lawfully be applied to apprehend him or her (e.g. where s/he is engaged in criminal behaviour of a violent kind), then the only reasonable view of his or her resistance to that force will usually be that s/he was acting as an aggressor in pursuit of his or her original design, rather than in self-defence (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; Fry v Queen (1992) 58 SASR 424).
Proportionality

32. Although in the past there was a separate requirement that the accused's actions be proportionate to the harm threatened, this is no longer the case. The proportionality of the accused's response to the harm threatened is simply one factor to take into account in determining whether the accused believed that his or her actions were necessary, and whether that belief was based on reasonable grounds (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Portelli (2004) 10 VR 259; R v Hendy [2008] VSCA 231; R v Said [2009] VSCA 244).
Use of Pre-emptive Force

33. A person is not only entitled to rely on self-defence only if s/he acts whilst an attack is in progress or immediately threatened. S/he is entitled to take steps to forestall a threatened attack before it has begun (Osland v R (1998) 197 CLR 316; Virov R (1978) 141 CLR 88; R v Lane [1983] 2 VR 449; R v Conlon (1993) 69 A Crim R 92).

34. The key issue is not whether an attack was imminent or immediately threatened, but whether the accused's perception of danger led him or her to believe that the use of defensive force was necessary, and that that belief was based on reasonable grounds (Osland v R (1998) 197 CLR 316).

35. However, what is believed to be necessary in the circumstances, and the reasonableness of the grounds for that belief, may be affected by the lack of immediacy of the threat, although this will not necessarily be the case (R v Portelli (2004) 10 VR 259).

36. Where a person responds pre-emptively to what he or she perceives to be a threat from a violent partner, expert evidence of "battered woman syndrome" may be admitted. Such evidence can assist the jury to understand that an act committed when there is no actual attack underway may be a self-defensive response to a genuinely apprehended threat of imminent danger, sufficient to warrant a pre-emptive strike (Osland v R (1998) 197 CLR 316).
Defence of Others and Protection of Property

37. There is no longer a requirement for there to be a particular relationship between the accused and the person they were defending. An accused will have a defence if s/he was protecting any other person, as long as s/he believed on reasonable grounds that it was necessary to act in that way given all of the circumstances (R v Portelli (2004) 10 VR 259).

38. Although there is little Victorian case law on the issue, the same principles may also apply if force is used to protect personal property, or to prevent crime (see, e.g., R v McKay [1957] VR 560).
Content of the Charge

39. The burden of proof should be made very clear to the jury. They should be told that the offence is proved only if the prosecution has established either that the accused had no belief that it was necessary to act in the way he or she did, or that there were no reasonable grounds for such a belief (R v Alpagut 27/7/1989 NSWCCA; R v Dziduch (1990) 47 A Crim R 378; R v Portelli (2004) 10 VR 259).

40. The jury should be told to consider all of the circumstances of the case, and that any one factor should be considered within that broader context. This helps ensure that matters of evidence, such as the proportionality of the force, are not elevated to rules of law (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Alpagut 27/7/1989 NSWCCA; R v Portelli (2004) 10 VR 259; R v Said [2009] VSCA 244).

41. The judge must not give the jury the impression that proportionality is a necessary part of the legal conception of self-defence, or give proportionality undue prominence as a factual consideration (R v Said [2009] VSCA 244).

42. The issue of self defence should be listed with all of the other issues which the prosecution must establish, rather than being dealt with separately (R v Alpagut 27/7/1989 NSWCCA).
Notes

[1] Crimes Act 1958 s9AJ modifies the common law position and, where it applies, requires the jury to ignore evidence of self-induced intoxication when determining whether the accused's belief was based on reasonable grounds. See Statutory Intoxication.

Last updated: 29 June 2015

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Click here to obtain a Word version of this document. Introduction Prior to 2005, self-defence in Victoria was governed solely by the common law. This situation was first altered by the passage of the Crimes (Homicide) Act 2005, which introduced two statutory self-defence provisions into the Crimes Act 1958: one for use in murder cases (s9AC) and the other for use in manslaughter cases (s9AE).

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Click here to obtain a Word version of this document.

Commencement Information

1. The defence of mental impairment was created by s20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (the Act).

2. Section 20 commenced operation on 18 April 1998, and applies to any offences that it is alleged were committed on or after that date.

3. The common law defence of insanity was abrogated by s25 of the Act, but continues to apply to any offences it is alleged were committed before 18 April 1998 (Schedule 3 clause 7(1)). However, a verdict of not guilty on account of insanity is to be taken for all purposes to be a finding of not guilty by reason of mental impairment under Part 4 of the Act (Schedule 3 clause 7(2)).
When can the Defence of Mental Impairment be Raised?

4. The question of mental impairment may be raised at any time during the trial by the defence or the prosecution (s22(1). See, e.g., R v Hassan [2004] VSC 85).

5. If the prosecution wishes to raise the issue of mental impairment, they require the leave of the trial judge (s22(1)). As long as there is admissible evidence on the issue, the trial judge has a very broad discretion to grant leave (R v Alford (No.2) [2005] VSC 405).
Pre-empanelment Consent Hearings

6. Depending on the circumstances, it may be possible to deal with the issue of mental impairment without empanelling or charging a jury (s21(4). See, e.g., R v Whelan [2006] VSC 319).

7. According to s21(4), if prior to the jury's empanelment the prosecution and the defence agree that the proposed evidence demonstrates that the accused committed the conduct constituting the offence,[1] and will also establish the defence of mental impairment, the trial judge may hear the evidence and:

If satisfied that the evidence establishes the defence of mental impairment, may direct that a verdict of not guilty because of mental impairment be recorded without empanelling a jury; or

If not satisfied that the evidence establishes the defence of mental impairment, direct that the matter be heard by a jury.

8. The judge must be satisfied that the evidence establishes the defence of mental impairment on the balance of probabilities (R v Whelan [2006] VSC 319).
Establishing Mental Impairment

9. A person is presumed not to be suffering from a mental impairment until the contrary is proved (s21(1)). This provision reflects the common law presumption of sanity (Sodeman v R (1936) 55 CLR 192; R v Porter (1933) 55 CLR 182).

10. The onus of rebutting the presumption of sanity rests on the party raising the question of mental impairment (s21(3)). In most cases it will be the defence that raise the issue, and who will be required to prove that the accused was mentally impaired. However, the burden will rest on the prosecution if they raise the issue under s22 (with the judge's leave).

11. The defence of mental impairment must be proved on the balance of probabilities (s21(2)(b)). This reflects the standard of proof that existed under the common law (Sodeman v R (1936) 55 CLR 192; R v Porter (1933) 55 CLR 182).

12. Apart from some limited circumstances in which a judge may determine the issue (see "Consent Hearings" above), determining whether or not an accused suffered from a mental impairment is a question of fact for the jury (s21(2)(a)).

13. When mental impairment is in issue, if a jury finds the accused not guilty they must specify in their verdict whether they have done so on the basis of mental impairment (s22(2)(b)).[2]
What is the Defence of Mental Impairment?

14. People will have a defence to what would otherwise be a criminal act if, at the time they committed the act, they were suffering from a mental impairment that had the effect that they either:

1. did not know the nature and quality of what they were doing; or

2. did not know that their conduct was wrong (s20(1)).

15. If the defence of mental impairment is established, the appropriate verdict is "not guilty because of mental impairment" (s20(2)). The effects of such a verdict are specified in s23 of the Act.

16. Unlike most other Australian jurisdictions (i.e. Queensland, Western Australia, Tasmania, South Australia and the Northern Territory), the Victorian defence does not include a mental impairment which has the effect of removing a person's capacity to control his or her actions.

17. The defence applies to people who were suffering from a mental impairment at the time they committed the criminal act. Part 2 of the Act establishes processes to be used if the accused suffers from a mental impairment at the time of the trial, and is unable to understand the charge, the trial or the evidence, or is unable to enter a plea or give instructions to his or her lawyer (see Investigations into Unfitness to Stand Trial).
"Mental Impairment"

18. The Act does not define the term "mental impairment". It has been held to have the same meaning as "disease of the mind", which formed the basis of the common law insanity defence (R v Sebalj [2003] 2003 VSC 181; R v Gemmill (2004) 8 VR 242; DPP v Taleski [2007] VSC 183; R v Martin [2005] VSC 518).

19. "Disease of the mind" has been held to be synonymous with "mental illness". It connotes an unhealthy or "infirm" mind, as opposed to a healthy mind affected by a transient, non-recurrent mental malfunction caused by external forces (R v Falconer [1990] 171 CLR 30; R v Radford (1985) 42 SASR 266).

20. See "What is a 'disease of the mind'?" in Automatism for further information concerning the meaning of this phrase, and examples of conditions which have been held to be "diseases of the mind".
Nature and Quality of the Act

21. People will have a defence to what would otherwise be a criminal act if, at the time they committed the act, they were suffering from a mental impairment that had the effect that that they did not know the nature and quality of their conduct (s20(1)(a)).

22. This provision restates one of the limbs of the common law defence of insanity. In that context, the phrase "nature and quality" has been held to refer to the physical character and significance of a person's actions, and the consequences of those acts. It does not refer to the moral quality of his or her conduct (Sodeman v R (1936) 55 CLR 192).

23. To satisfy this limb of the defence, the accused must have been unable to appreciate the physical nature of what he or she was doing, and the consequences of his or her behaviour. In the case of murder, for example, the accused must have had so little capacity for understanding the nature of life and the destruction of life, that to him or her it was like breaking a twig or destroying an inanimate object (R v Porter (1933) 55 CLR 182).
Knowledge of wrongfulness

24. People will have a defence to what would otherwise be a criminal act if, at the time they committed the act, they were suffering from a mental impairment that had the effect that they did not know that their conduct was wrong (s20(1)(b)).

25. Section 20(1)(b) defines this to mean that the person "could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong".

26. This provision, including the definition of "wrong" as meaning contrary to the ordinary principles of reasonable people, rather than contrary to the law or morality, also restates one of the limbs of the common law defence of insanity (R v White and Piggin (2003) 7 VR 442; R v Porter (1933) 55 CLR 182; Sodeman v R (1936) 55 CLR 192; Stapleton v R (1952) 86 CLR 358).
Mental Impairment and Proof of Elements

27. The defence of mental impairment is not established simply by proving that the accused suffered from a mental impairment that had one of the requisite effects. The jury must also be satisfied that the accused engaged in the "conduct constituting the offence" (s20(1)).

28. Section 3(1) states that "conduct includes doing an act and making an omission". It is clear from this definition that the prosecution must at least prove, beyond reasonable doubt, that the accused committed the act or omission which constitutes the offence charged.

29. It is unclear whether the prosecution must also prove any of the other elements of the charged offence, such as the requisite mens rea. While the use of the term "conduct constituting the offence" may indicate that the prosecution is not required to prove that the accused had a specific mental state, this issue has not yet been addressed in Victoria.[2]

30. A number of different approaches have been taken to the issue of which elements the prosecution is required to prove, as outlined below. As the law in this area is unclear, judges who are required to charge a jury in a case that raises the defence of mental impairment will need to consider which of these approaches (if any) to apply.
The Original High Court Approach

31. Originally, it appears to have been assumed (without discussion) by the High Court that the prosecution was required to prove all of the elements of the offence charged (see, e.g., R v Porter (1933) 55 CLR 182; R v Sodeman (1936) 55 CLR 192; R v Stapleton (1952) 86 CLR 358).

32. This approach does not address the difficulties that arise if the presence of a mental illness prevents the prosecution from proving that the accused had the requisite mental state. It is possible that the accused would be entitled to a complete acquittal in such circumstances.

33. This approach appears to have been adopted in the trial of Donna Fitchett. In R v Fitchett (2009) 23 VR 91, Nettle JA is reported as having told the jury that they needed to find all of the elements of murder proven (at para 26). However, the issue did not form a ground of appeal, and appears not to have been directly addressed.
The Stiles Approach

34. In the only Victorian case to directly address this issue, the Court of Appeal also held that the prosecution had to prove all of the elements. However, they stated that when deciding whether the prosecution has proved its case, the jury must assume that the accused was of sound mind (R v Stiles (1990) 50 A Crim R 13. See also R v Perkins [1983] WAR 184).

35. Under this approach the jury should not consider any evidence of mental illness when determining whether the elements of the offence have been proven. Consequently, if evidence of mental illness provides the only reason for doubting that the accused had the requisite mental state, he or she should either be convicted or found not guilty because of mental impairment, depending on whether the requirements of the defence are established on the balance of probabilities.

36. This approach has been used in a number of recent NSW single judge decisions (see, e.g., R v Grant [2009] NSWSC 833; R v Tarantello [2011] NSWSC 383).
The Hawkins Approach

37. In Hawkins v R (1994) 179 CLR 500, the High Court held, in the context of the Tasmanian Criminal Code, that the prosecution only needs to prove that the accused voluntarily committed the 'incriminated act'. They do not need to be satisfied that the accused acted with the requisite specific intention.

38. Under this approach, where the accused is charged with an offence that requires proof of a specific intention:

The jury must first determine whether the prosecution has proven, beyond reasonable doubt, that the accused voluntarily committed the relevant act. Evidence of mental illness should not be taken into account when making this determination;

If the jury is satisfied that the accused committed the relevant act, they must next determine whether the requirements of the mental impairment defence have been proven on the balance of probabilities. If so, they should return a qualified acquittal.

If the jury is not satisfied that the mental impairment defence has been established, the jury must next determine whether the prosecution has proven, beyond reasonable doubt, that the accused had the necessary specific intention. Evidence of mental illness may be taken into account when making this determination (Hawkins v R (1994) 179 CLR 500).

39. This approach has been followed in a number of cases in other jurisdictions (see, e.g., R v Toki [2003] NSWCCA 125; R v Minani (2005) 63 NSWLR 490; Garrett v R [1999] WASCA 169; Ward v R (2000) 118 A Crim R 78 per Kennedy, Wallwork and Scott JJ).

40. However, other judgments have highlighted a number of difficulties with the Hawkins approach, and have sought to limit its application (see, e.g., Ward v R (2000) 118 A Crim R 78 per Wheeler J; R v Nolan WA CCA 22/5/97; Stanton v R (2001) 24 WAR 233; [2001] WASCA 189).
Other Approaches

41. A number of other approaches have been taken to this issue, both in Australia and in other common law jurisdictions. These include:

Requiring the prosecution to prove all of the elements of the charged offence, but directing the jury to return a qualified acquittal if the accused's illness provided the reason for them failing to be satisfied about those elements (R v Pantelic (1973) 1 ACTR 1; Taylor v R (1978) 22 ALR 599 per Smithers J);

Requiring the prosecution to only prove the actus reus of the charged offence (Attorney-General's Reference (No. 3 of 1998) [2000] QB 401; R v Antoine [2001] 1 AC 340);

Requiring the prosecution to prove the actus reus and, if there is objective evidence raising the issue, any specific knowledge or intention necessary to constitute the offence (R v Ardler (2004) 144 A Crim R 552; R v King (2005) 155 ACTR 55; R v Clements [2006] ACTSC 44);

Other Matters for Consideration

42. When determining which approach to take to this issue, judges may wish to consider the following matters:

At what point should other defences, such as self-defence or consent, be considered by the jury;

If the prosecution is not required to prove mens rea, what verdict should the jury return where the same conduct forms the actus reus of a number of different offences (e.g., murder and manslaughter);

What is the prosecution required to prove in cases involving negligence, complicity or inchoate offence.

When to Give a Charge on Mental Impairment

43. Once a jury has been empanelled, if there is admissible evidence that raises the question of mental impairment, the judge must direct the jury to consider the question (s22(2)). This reflects the position at common law (R v McMahon (2004) 8 VR 101; R v Shields [1967] VR 706; R v Meddings [1966] VR 306; Bratty v Attorney-General for Northern Ireland [1963] AC 386).

44. A charge concerning mental impairment will therefore always need to be given if there is admissible evidence that raises the issue (unless the prosecution and the defence agree, prior to empanelment, that the proposed evidence will establish the defence, and the trial judge is satisfied that that is the case. See "Consent Hearings" above).

45. It may therefore be necessary to charge the jury about mental impairment even if neither the prosecution nor the defence seek to raise the question, or actively oppose it being left to the jury, if there is admissible evidence on the issue (see, e.g., Hawkins v R (1994) 179 CLR 500).

46. The time at which the charge should be given will depend on the resolution of the issues outlined in "Mental Impairment and Proof of Elements" above. For example:

If the Stiles approach is adopted, the charge should be given after directing the jury about all of the elements of the offence.

If the Hawkins approach is adopted, the judge may wish to give the charge before directing the jury about the prosecution's need to prove specific intention.

Content of the Charge

47. The term "mental impairment" is a legal term, not a medical term. It is therefore for the trial judge to determine what is meant by the term and to explain its meaning to the jury (R v Falconer [1990] 171 CLR 30; R v Tonkin [1975] Qd R 1; R v Kemp [1957] 1 QB 399).

48. The judge should clearly explain what the prosecution must prove before the jury considers the defence of mental impairment. This will depend on the resolution of the issues outlined in "Mental Impairment and Proof of Elements" above.

49. The judge must explain to the jury the findings which may be made in a case where mental impairment is in issue (i.e. guilty, not guilty or not guilty because of mental impairment (s22(2)).

50. The judge must also explain to the jury the legal consequences of those findings (s22(2); R v Fitchett (2009) 23 VR 91).[4]

51. This requirement was introduced to address the concern that, in the absence of any information about the processes that would follow a finding of not guilty because of mental impairment, some jury members might be reluctant to hand down an exculpatory verdict, due to the perception that it could result in the immediate release of a disturbed and dangerous person. In most cases, that would almost certainly not be the case (R v Fitchett (2009) 23 VR 91. See also R v Weise [1969] VR 953).

52. This part of the charge must therefore:

Inform the jury about the nature of the decisions that will have to be made following a finding of not guilty because of mental impairment; and

Explain to the jury that there is a process to be followed which will focus upon the question of the appropriate disposition of the person in the particular circumstances of the case (R v Fitchett (2009) 23 VR 91).

53. The judge is not empowered to prognosticate upon or pre-empt the decisions to be made with respect to the accused's disposition (R v Fitchett (2009) 23 VR 91).

54. The judge must not convey any impression concerning the desirability, punitive features or public safety aspects of arriving at a particular verdict (R v Fitchett (2009) 23 VR 91).

55. While there is no set formulation for what must be said, the Court of Appeal in R v Fitchett (2009) 23 VR 91 approved the following charge given by Osborn J in R v Gemmill (12/11/03 Vic SC):
If you find the accused guilty, then there will be a further hearing before me and I will have to determine how he should be sentenced. If you find him not guilty, that is completely not guilty, he will be discharged and be free to walk away from the court. If you find him not guilty because of mental impairment, then there are two options open to me. The first is to declare that he is liable to a supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act (1997) and the second is to order that he be released unconditionally. I would have to form a view on evidence as to what was the appropriate course to be followed.

A Supervision order, which is the first option that would be open to me, may commit the person to custody, or release the person on conditions decided by the court and specified in the Order. So you can see that those are the different legal consequences that follow from the different verdicts available to you. And you can see, as I have told you, that a verdict of not guilty because of mental impairment, has quite different consequences from a verdict of not guilty, ...

Notes

[1] It is unclear whether the defence and prosecution simply need to agree that the accused committed the relevant acts, or whether they also need to agree that the accused had the requisite mental state: see "Mental Impairment and Proof of Elements" below.

[2] It is unclear whether the jury must return this verdict in relation to the offence charged, or whether they may return a qualified acquittal to a lesser included offence. See "Lesser Included Offences" below for further information.

[3] Where a similar phrase was interpreted in the United Kingdom, the courts originally held that the prosecution had to prove all of the elements of the charged offence ( R v Egan [1998] 1 Cr App R 121). This approach was later overruled, with the courts holding that the prosecution only had to prove the actus reus of the charged offence ( Attorney-General's Reference (No. 3 of 1998) [2000] QB 401; R v Antoine [2001] 1 AC 340).

[4] This differs from the law in most other areas, where it is generally considered undesirable to direct a jury about the consequences of their verdict (see, e.g., Lucas v R (1970) 120 CLR 171).

Last updated: 23 November 2011

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Click here to obtain a Word version of this document. Commencement Information The defence of mental impairment was created by s20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (the Act). Section 20 commenced operation on 18 April 1998, and applies to any offences that it is alleged were committed on or after that date.

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Posted December 15, 2016 10:50:56

The man who shot dead two Monash University students in 2002 has been ordered to spend up to seven-and-a-half years in custody for stabbing a doctor at the Thomas Embling Hospital last year.

Huan Yun Xiang was serving a 25-year custodial sentence in the hospital, after being found not guilty of the university murders due to mental impairment.

Yun Xiang faced the Supreme Court accused of recklessly causing serious injury after stabbing a doctor at the facility several times.

The court heard that Yun Xiang had given his doctor, identified as Dr XY, a note to read during their session and when she was distracted reading it, he started stabbing her.

Justice Jane Dixon said the doctor had written that she was terrified and expressed shock and horror at the stabbing.

The doctor also expressed concern about the future risk to herself and others involved in Yun Xiang's treatment.

The doctor suffered non-life threatening injuries in the attack.

Justice Dixon told the court there was no realistic alternative for custody other than the Thomas Embling Hospital.

The sentence will be served concurrently with his previous 25-year order.

Topics: courts-and-trials, mental-health, melbourne-3000

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Monash Uni shooter sentenced for stabbing doctor at psychiatric hospital

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Posted December 15, 2016 10:50:56 The man who shot dead two Monash University students in 2002 has been ordered to spend up to seven-and-a-half years in custody for stabbing a doctor at the Thomas Embling Hospital last year.

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Click here to obtain a Word version of this document.

Introduction

1. Section 9AG of the Crimes Act 1958 applies to homicide offences committed on or after 23 November 2005 and before 1 November 2014. [1]

2. Section 322O of the Crimes Act 1958 applies to all offences committed on or after 1 November 2014.

3. It is still necessary to apply the common law when there is evidence of duress in non-homicide cases committed before 1 November 2014. It is also necessary to rely on the common law in relation to homicides committed before 23 November 2005.

4. The Crimes Amendment (Abolition of Defensive Homicide) Act 2014 abolished the common law defence of duress with respect to all offences committed on or after 1 November 2014 (Crimes Act 1958 s322Q).

5. If the accused is charged with both homicide and non-homicide offences, committed before 1 November 2014, it will be necessary to give multiple directions about duress. The jury will need to be charged about statutory duress in relation to the homicide charges, and common law duress in relation to any other charges (see R v Pepper (2007) 16 VR 637; [2007] VSC 234; DPP v McAllister [2007] VSC 315 for similar issues that arise in the context of self-defence).

6. This topic outlines the common law defence of duress. For information concerning the statutory provisions, see Statutory Duress (From 1/11/14) and Statutory Duress (23/11/05 - 31/10/14).
What is Duress?

7. An act is said to be committed under duress if it is committed due to a threat of physical harm if the act is not done (R v Dawson [1978] VR 536).

8. Duress does not destroy the will or the effective power to exercise it. It merely alters the direction of its exercise (R v Harding [1976] VR 129).

9. To have acted under duress, the circumstances must have been such that the accused's will was really and absolutely so constrained that he or she became a mere innocent instrument of the crime (R v Dawson [1978] VR 536; R v Darrington [1980] VR 353).

10. Where duress is available as a defence, and the prosecution cannot prove that the accused did not act under duress, he or she will have a complete defence to the offence charged (R v Japaljarri (2002) 134 A Crim R 261).
Duress and Voluntariness

11. As duress implies a deliberate choice to break the law (although under constrained circumstances), it is incorrect to treat duress as related to the voluntariness requirement (R v Palazoff (1986) 43 SASR 99).

12. People who act under duress are therefore not excused because they acted involuntarily. They are excused because of the wrongfulness of the threat (R v Palazoff (1986) 43 SASR 99).
Duress and Intent

13. Duress is a defence to all criminal acts except for murder and some forms of treason (R v Harding [1976] VR 129; R v Goldman (No 4) (2004) 147 A Crim R 472; Attorney-General v Whelan [1934] IR 518; R v Hurley [1967] VR 526; R v Tawill [1974] VR 84).

14. In Australia the defence has been applied to:

Manslaughter (R v Evans (No 1) [1976] VR 517);

Drug offences (R v Lawrence [1980] 1 NSWLR 122; R v Brown (1986) 43 SASR 33; R v Palazoff (1986) 43 SASR 99);

Prison escape (R v Smyth [1963] VR 737; R v Dawson [1978] VR 536);

Contempt of court (R v Garde-Wilson (2005) 158 A Crim R 20).

Duress and Murder

15. However, it is unclear whether duress is available to a person who was present at the killing and aided or abetted the crime (a "principal in the second degree"), or who was not present but counselled or procured the killing (an "accessory before the fact"):

Initially, it was held that in Victoria duress was not available to principals in the second degree (R v Harding [1976] VR 129).

The House of Lords subsequently held that duress was a defence to a person charged with murder as a principal in the second degree (Director of Public Prosecutions (Northern Ireland) v Lynch [1975] AC 653).

Although somewhat disapproving of the decision in Lynch, the Victorian Supreme Court felt obliged at the time to follow the House of Lords decision, and overruled Harding (holding that duress is denied only to the actual killer) (R v Darrington [1980] VR 353).

Subsequently, the House of Lords overruled its own decision in Lynch, holding that duress is not a defence to principals in the second degree, nor is it a defence to an accessory before the fact (R v Howe [1987] AC 417. See also R v Brown [1968] SASR 467).

16. While the matter has not been authoritatively settled by a Victorian court, the issue has been the subject of judicial discussion in two recent cases:

In R v Japaljarri (2002) 134 A Crim R 261 the court stated that, due to Darrington, duress may be available on a charge of murder where the accused is a principal in the second degree. However, they also noted that the House of Lords had overruled its own decision in Lynch.

In R v Goldman (No 4) (2004) 147 A Crim R 472 Redlich J noted that, had the Court in Darrington had the benefit of the High Court's guidance about when it was acceptable to depart from House of Lords decisions (that was subsequently given in Cook v Cook (1986) 162 CLR 376), it would have followed Harding instead (as Lynch was not perceived to be based upon established principles of common law).

17. Even if duress is not available as a defence to people who aid, abet, counsel or procure murder, it may be available to accessories after the fact (as they have committed an offence against justice, rather than an offence against the person or the State) (Fairall and Yeo, 2005, p 141).
Attempted Murder

18. The question whether duress is a defence to attempted murder has not been authoritatively resolved in Australia (R v Japaljarri (2002) 134 A Crim R 261; R v Goldman (No 4) (2004) 147 A Crim R 472).

19. In R v Gotts [1992] 2 AC 412 a majority of the House of Lords held that duress is not a defence to attempted murder.

20. However, in R v Goldman (No 4) (2004) 147 A Crim R 472 Redlich J followed the decision of the minority in Gotts (and the Canadian judgments of R v Hibbert [1995] 2 SCR 973 and Paquette v R (1976) 30 CCC (2d) 417), holding that duress is a defence to attempted murder.
Manslaughter

21. Duress is available as a defence to a charge of manslaughter (R v Evans (No 1) [1976] VR 517; R v Harding [1976] VR 129).

22. It has traditionally been held that duress is a defence to all crimes other than murder and "any other crime so heinous as to be excepted from the doctrine" (R v Hurley [1967] VR 526; R v Darrington [1980] VR 353; R v Dawson [1978] VR 536; R v Emery (1978) 18 A Crim R 49; R v Zaharias (2001) 122 A Crim R 586; R v Japaljarri (2002) 134 A Crim R 261).

23. The other "heinous" crimes to which duress is denied as a defence seems to have been limited to some serious forms of treason (R v Goldman (No 4) (2004) 147 A Crim R 472).
Onus of Proof

24. It is for the prosecution to prove, beyond reasonable doubt, that the accused was not acting under duress (R v Smyth [1963] VR 737; R v Harding [1976] VR 129; R v Emery (1978) 18 A Crim R 49; R v Zaharias (2001) 122 A Crim R 586).

25. This is sometimes expressed as requiring the prosecution to eliminate any reasonable possibility that the accused acted under duress (R v Abusafiah (1991) 24 NSWLR 531).

26. The prosecution can prove that the accused was not acting under duress by proving any of the following matters (each of which are discussed below):

1. That no-one was threatened with serious harm if the accused failed to commit the crime charged;

2. That the threat was not present and continuing, imminent and impending;

3. That the accused did not reasonably apprehend that the threat would be carried out;

4. That it was not the threat that induced the accused to commit the crime charged;

5. That, when free from the duress, the accused voluntarily exposed himself or herself to its application;

6. That the accused could safely have prevented the execution of the threat; or

7. That the circumstances were such that a person of ordinary firmness would not have been likely to yield to the threat in the way the accused did (R v Hurley [1967] VR 526. See also R v Darrington [1980] VR 353; R v Dawson [1978] VR 536; R v Emery (1978) 18 A Crim R 49; R v Zaharias (2001) 122 A Crim R 586; R v Japaljarri (2002) 134 A Crim R 261).

Someone was Threatened with Harm if Crime Was Not Committed

27. The first way the prosecution can prove that the accused was not acting under duress is by establishing that no-one was threatened with serious harm if the accused failed to commit the crime charged (R v Hurley [1967] VR 526).

28. This can be done by proving either:

That no threat was made (R v Zaharias (2001) 122 A Crim R 586; R v Dawson [1978] VR 536);

That the threats made were not of a sufficient magnitude (R v Gibb [1983] 2 VR 155; R v Hurley [1967] VR 526; R v Harding [1976] VR 129); or

That the demand made was not to commit the offence charged (R v Dawson [1978] VR 536; R v Lorenz (1998) 146 FLR 369).

A Threat Must Have Been Made

29. It is not sufficient that the accused felt fear. A threat must have been made (see, e.g., R v Darrington [1980] VR 353; R v Japaljarri (2002) 134 A Crim R 261).

30. In some cases it seems to have been suggested that the threat must have been of death or serious personal violence (see, e.g., R v Smyth [1963] VR 737; R v Hurley [1967] VR 526; R v Darrington [1980] VR 353; R v Dawson [1978] VR 536; R v Japaljarri (2002) 134 A Crim R 261).

31. However, it has also been suggested that a threat of imprisonment may be sufficient (R v Harding [1976] VR 129 per Murphy J).

32. While it is not clear whether duress can be constituted by threats of damage to property (R v Harding [1976] VR 129 per Murphy J), such threats are unlikely to be of suitable severity (Director of Public Prosecutions (Northern Ireland) v Lynch [1975] AC 653). There are no known Victorian cases in which it has been suggested that the accused acted under duress due to a threat to property.

33. The defence is not limited to threats made against the accused him or herself. The defence may be made out if the accused acted to avoid threatened death or harm to another person (see, e.g., R v Hurley [1967] VR 526; R v Harding [1976] VR 129 per Murphy J; Attorney-General v Whelan [1934] IR 518; R v Abusafiah (1991) 24 NSWLR 531).
The Demand Must Have Been to Commit the Offence Charged

34. The second way the prosecution can prove that the accused was not acting under duress is by establishing that the threat was not present and continuing, imminent and impending (R v Hurley [1967] VR 526).

35. While the coercion must be immediate, the threat need not be of immediate harm (R v Hurley [1967] VR 526; R v Emery (1978) 18 A Crim R 49).

36. Thus, while the threat must be effective at the moment the crime is committed, the carrying out of the threat may be delayed because of particular circumstances (R v Dawson [1978] VR 536).

37. The threatener need not be present when the offence is committed, as long as the threat remains present and continuing, imminent and impending (R v Hurley [1967] VR 526; R v Emery (1978) 18 A Crim R 49).

38. Thus, where the threat is to take a hostage's life if the accused does not commit the offence, the defence of duress may be raised even if the kidnappers were not present when the offence was committed (see, e.g., R v Hurley [1967] VR 526).
Accused Feared the Threat Would Be Carried Out

39. The third way the prosecution can prove that the accused was not acting under duress is by establishing that the accused did not reasonably apprehend that the threat would be carried out (R v Hurley [1967] VR 526; R v Emery (1978) 18 A Crim R 49).

40. This can be done by proving that:

The accused did not fear that the threat would be carried out; or

That the accused did not have reasonable grounds for that fear (see, e.g., R v Emery (1978) 18 A Crim R 49).

The Threat Induced the Accused to Commit the Crime

41. The fourth way the prosecution can prove that the accused was not acting under duress is by establishing that it was not the threat that induced the accused to commit the crime charged (R v Hurley [1967] VR 526).

42. While the threat must have directly provoked the commission of the crime with which the accused is charged, it need not have completely overborne the accused's will (R v Dawson [1978] VR 536).

43. The crime must only have been committed because of the duress. The defence will not be available if the crime was committed for other reasons as well (R v Zaharias (2001) 122 A Crim R 586; R v Abusafiah (1991) 24 NSWLR 531; R v Hurley [1967] VR 526; R v Dawson [1978] VR 536)

44. In considering whether the threat induced the accused to commit the crime, the jury should consider the nature of the threats made, and the accused's knowledge of the character and reputation of the person making them (see, e.g., R v Abusafiah (1991) 24 NSWLR 531).

45. Where it is alleged that the accused was acting to protect a third party, it will be for the jury to determine whether he or she was acting under duress. In making this determination, the jury may take into account factors such as the strength of the accused's attachment to the third party (see, e.g., R v Hurley [1967] VR 526).
Voluntary Exposure to Duress

46. The fifth way the prosecution can prove that the accused was not acting under duress is by establishing that, when free from the duress, the accused voluntarily exposed himself or herself to its application (R v Hurley [1967] VR 526).

47. This will be the case if the accused voluntarily joined or associated with a criminal organisation, or became a party to a criminal enterprise knowing of its criminal purpose. In such circumstances the accused cannot rely upon the defence of duress in respect of any offence committed in response to coercion arising out of his or her association with the organisation, or his or her participation in the criminal enterprise (R v Hurley [1967] VR 526).

48. The sixth way the prosecution can prove that the accused was not acting under duress is by establishing that the accused could safely have prevented the execution of the threat (R v Hurley [1967] VR 526).

49. This will be the case if the accused did not avail him or herself of any reasonable opportunity to escape or avoid the threatened conduct being performed (R v Dawson [1978] VR 536; R v Goldman (No 5) [2004] VSC 292; R v Hurley [1967] VR 526; R v Darrington [1980] VR 353).

50. If escaping from the immediate presence of the person making the threat would not have rendered the threat ineffective, reliance on the defence will not be precluded because the accused failed to escape. For example, if the threat was to cause death or serious injury at some time in the near future, failing to take advantage of an opportunity to escape would not preclude reliance on the defence (R v Abusafiah (1991) 24 NSWLR 531).

51. The question of whether or not a safe means of escape was available to the accused is to be determined according to an objective standard, using the perspective of the reasonable person (R v Goldman (No 5) [2004] VSC 292; R v Besim [2004] VSC 168).

52. When considering the perspective of the reasonable person, the circumstances in which the accused found him or herself are relevant and should be taken into account (R v Goldman (No 5) [2004] VSC 292).

53. Where the carrying out of the threat can be prevented by reporting the matter to the authorities, a failure to do so may preclude the accused from relying upon the defence (see, e.g., R v Dawson [1978] VR 536).

54. However, if the accused failed to report the situation to the police on the grounds that he or she reasonably believed police protection to be ineffective against the threatener, the defence of duress might still succeed.

55. Evidence of battered woman syndrome may be relied upon to explain why a woman of ordinary firmness did not escape the threatening situation by seeking police protection (R v Runjanjic (1991) 56 SASR 114). See "Duress and Battered Woman Syndrome" below.
Person of Ordinary Firmness Would Have Been Likely to Yield

56. This "objective test" restricts the defence of duress to circumstances in which the accused can be viewed objectively as having acted to avoid serious harm (R v Hurley [1967] VR 526).

57. What is involved in the objective test is an evaluation of the behaviour of the accused by reference to a standard of reasonableness, not a prediction as to the way in which particular individuals may behave. The law requires the accused to have the self-control reasonably expected of the ordinary citizen in his or her situation (R v Abusafiah (1991) 24 NSWLR 531).

58. The question is whether the accused could not reasonably have been expected to resist in the circumstances (R v Abusafiah (1991) 24 NSWLR 531).

59. It is not clear what characteristics the jury should consider the ordinary person to have. In NSW it has been assumed that, in light of Stingel v R (1990) 171 CLR 312, it is only the accused's age, sex and maturity that should be taken into account (see, e.g., R v Abusafiah (1991) 24 NSWLR 531). However, Stingel was decided in the context of provocation, and it is possible that different considerations apply in relation to duress (as noted in R v Zaharias (2001) 122 A Crim R 586 and R v Abusafiah (1991) 24 NSWLR 531).

60. In considering the objective test, the jury should consider the nature of the threats made, and the accused's knowledge of the character and reputation of the person making them (see, e.g., R v Abusafiah (1991) 24 NSWLR 531).

61. Where the threat is not against the accused personally (e.g., where the accused's family is threatened), the jury must determine whether a threat of that nature would be likely to coerce or compel a person of ordinary firmness of character to yield by committing the crime in question (R v Abusafiah (1991) 24 NSWLR 531).

62. While traditionally the test was framed as whether or not the person of ordinary firmness "would" have been likely to yield (R v Hurley [1967] VR 526), in Victoria it is permissible to use "could" or "might" instead (R v Zaharias (2001) 122 A Crim R 586; R v Lanciana (1996) 84 A Crim R 268).
Duress and Battered Woman Syndrome

63. Battered woman syndrome is not a defence in its own right (R v Lorenz (1998) 146 FLR 369).

64. However, evidence that an accused suffered from the psychological condition of battered woman syndrome may be relevant to the defence of duress (R v Lorenz (1998) 146 FLR 369).

65. Specifically, evidence of the existence of this syndrome may be used:

To explain why the accused's will was overborne; and

To argue that a woman of ordinary firmness, if placed in the same position as that of the accused, would have committed the acts constituting the offence with which the accused was charged (R v Runjanjic (1991) 56 SASR 114. See also Rice v McDonald (2000) 113 A Crim R 75).

When to Charge the Jury about Duress

66. The need for a direction on duress will depend on whether the defence has indicated that duress is in issue or whether there are substantial and compelling reasons for directing on duress in the absence of any request (Jury Directions Act 2015 ss14 - 16).

67. At common law, the judge was required to direct the jury about duress if the evidence is such that it might lead a reasonable jury to decide that the accused committed the relevant act under duress (R v Evans (No 1) [1976] VR 517; R v Harding [1976] VR 129).

68. The question was whether, on the version of events most favourable to the accused that is suggested by the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the accused was not acting under duress (Taiapa v R (2009) 240 CLR 95. See also Martin v R (2010) 28 VR 579).

69. The issue of duress may be raised at any time during the trial (R v Zaharias (2001) 122 A Crim R 586).

70. There is no single formulation that must be followed when charging a jury about duress. What is required is instructions expressed with sufficient clarity that the jury could be left in no doubt with respect to the principles that they must apply to the task before them (R v Zaharias (2001) 122 A Crim R 586).

71. While the elements spelt out in R v Hurley [1967] VR 526 provide a useful foundation for a charge, in most cases it is neither necessary nor desirable to use every word in it or to explain every element (R v Emery (1978) 18 A Crim R 49).

72. For example, where the crime charged is not murder or any other excepted crime, no reference to the exclusion of such crimes should ordinarily be made (R v Emery (1978) 18 A Crim R 49).

73. It is essential that the facts are related to the relevant issues (R v Emery (1978) 18 A Crim R 49).

74. While not a misdirection, the jury should not be told to examine the evidence relating to duress with great care and scrutiny (due to the ease with which it can be invented). The question whether an accused's claim that he or she was acting under duress is plausible enough to raise a reasonable doubt is exactly the kind of matter which juries are well-equipped to deal with, without the need for any special direction (R v Goldman [2007] VSCA 25).
Charging About the Onus of Proof

75. The jury may be directed about the onus of proof in any of the following ways:

The prosecution must prove, beyond reasonable doubt, that the accused did not act under duress;

The prosecution must establish that there is no reasonable possibility that the accused acted under duress; or

The prosecution must eliminate any reasonable possibility that the accused acted under duress (R v Lanciana (1996) 84 A Crim R 268; R v Zaharias (2001) 122 A Crim R 586).

76. It is desirable to tell the jury that it is always difficult to give directions upon the issue of duress in a way which completely avoids any suggestion that the accused must prove the defence. However, the jury must always keep it in mind that it is the prosecution which must eliminate any reasonable possibility that the accused acted under duress (R v Abusafiah (1991) 24 NSWLR 531).

77. Judges may refer to duress as a "defence", so long as the true incidence of the burden of proof is made clear (R v Lanciana (1996) 84 A Crim R 268).

78. A judge should not use the wording of Smith J's judgment in R v Hurley [1967] VR 526 when directing the jury, as it may cause the jury to incorrectly believe that the onus of proving the relevant matters is on the accused (R v Emery (1978) 18 A Crim R 49).

79. The judge should not say that the prosecution has "merely" to prove, beyond reasonable doubt, that the accused did not act under duress. The use of the word "merely" is unnecessary and misplaced (R v Williams [1998] 4 VR 301).
Charging About the Objective Test

80. The judge should clearly explain to the jury that for duress to fail due to the objective test, the prosecution must establish that there is no reasonable possibility that a person of ordinary firmness of mind and will could have been compelled by the threat in the way the accused was (R v Lanciana (1996) 84 A Crim R 268),

81. The judge should explain that, when determining this issue, the jury should have regard not only to the nature of the threat and its proportion to the crime committed, but also to any circumstances known to the accused concerning the person making the threat, which may reasonably have affected the ordinary person's reaction to it (R v Abusafiah (1991) 24 NSWLR 531; R v Goldman (No 5) [2004] VSC 292).

82. It is important that the directions in relation to the objective test are consistent. For example, if the charge refers to threats which "could" compel a person of ordinary firmness to act in a certain way, subsequent references should be stated in the same terms to avoid confusion (R v Lanciana (1996) 84 A Crim R 268)

83. Judges should avoid use of the term "the average person". The usual formulation is "the person of ordinary firmness of mind and will". That is a much wider concept than the "average person", and includes a greater range of differing temperaments (R v Abusafiah (1991) 24 NSWLR 531).

84. Where the threat is directed to another person, the judge should explain that duress may operate if such a threat would be likely to compel the person of ordinary firmness of character to yield by committing the crime in question (R v Abusafiah (1991) 24 NSWLR 531).
Charging About Opportunities to Escape

85. The question for the jury to determine in relation to the issue of escape is whether a person in the accused's circumstances, and acting reasonably, would have taken one of the opportunities available to render the threat ineffective (R v Goldman (No 5) [2004] VSC 292).

86. When directing the jury about this issue, they should be told to have regard to all of the circumstances and any risks associated with any course of action which would have rendered the threat ineffective (R v Goldman (No 5) [2004] VSC 292).

87. The jury must consider whether such a course of action was reasonably safe, or whether it was likely to expose the accused to the very danger from which he or she was seeking to escape (R v Goldman (No 5) [2004] VSC 292).

88. In deciding whether a reasonable person in the accused's position would have availed themselves of the opportunity to escape, the jury should also take into account the fact that the circumstances may not have provided the accused with time to give calm and measured consideration to the course of conduct that was open to him or her (R v Goldman (No 5) [2004] VSC 292).

89. As there is no legal "obligation" on the accused to escape, it would be preferable for the judge to avoid use of the term "obligation" in the charge (R v Abusafiah (1991) 24 NSWLR 531).
Charging About the Use of the Evidence for Other Purposes

90. A direction on the use of evidence of coercion for this purpose may be required even where a direction on duress is not (R v Darrington [1980] VR 353).

91. Where evidence of coercion can be used both for the purposes of proving duress, as well as due to its evidentiary significance for proving another matter, it is important that clear instructions be given so that the jury does not confuse the two issues (R v Darrington [1980] VR 353).
Duress and Marital Coercion

92. In cases where a married woman is charged with an offence other than treason or murder, and she raises evidence that her actions (or inaction) were the result of coercion by her husband, the judge may also need to instruct the jury about the statutory defence of marital coercion (Crimes Act 1958 s336(2)).
Use of Evidence of Duress to Disprove Elements of the Offence

93. Evidence which is relevant to the issue of duress may also be relevant to the determination of the elements. For example, the fact that the accused was threatened may help to explain the acts that he or she performed, and thus may influence the inferences the jury are willing to draw on the issue of mens rea (see, e.g., R v Darrington [1980] VR 353; R v Harding [1976] VR 129; R v Goldman (No 4) (2004) 147 A Crim R 472).

94. In such cases the judge should:

Direct the jury about the relevance the evidence has to any of the elements of the offence; and

Direct the jury that, if they accept that one of the elements of the offence has not been proven because of that evidence, they must acquit the accused, even if all of the elements of the defence of duress have not be met (R v Hurley [1967] VR 526).

Notes

[1] If the date of the victim's death differs from the date on which the actus reus was committed, the relevant date for determining whether the provisions of the Crimes (Homicide) Act 2005 apply is the date of death ( R v Gould (2007) 17 VR 393; [2007] VSC 420).

[2] For murders committed on or after 23 November 2005, duress is a defence. See Statutory Duress (From 1/11/14) and Statutory Duress (23/11/05 - 31/10/14).

Last updated: 29 June 2015

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Click here to obtain a Word version of this document. Introduction Section 9AG of the Crimes Act 1958 applies to homicide offences committed on or after 23 November 2005 and before 1 November 2014. [1] Section 322O of the Crimes Act 1958 applies to all offences committed on or after 1 November 2014.

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Ask any law student about the most memorable English law case read in criminal law class. Chances are that many would name "Queen v. Dudley and Stephens" or "the lifeboat case." This infamous case involved four seamen who were shipwrecked on a lifeboat in 1884. After seven days without food and five without water, it was decided that in order for the rest of the crew to survive "the castaway sailors kill the cabin boy and eat him." That rather sensational case dealt with the defence of necessity.

Rarely, a court may find that someone who breaks the law to prevent immediate and irreparable harm to themselves or their family is not guilty of a crime. However, the accused's state of mind at the time of the offence, as well as the facts surrounding it, are hugely important, and the act of starving to death does not necessarily support the necessity defence.

The Difference between Defence of Necessity and Self-Defence
While similar, the necessity defence is not the same as self-defence or duress. The Australian National University explains the differences:

Self-defence involves defence from an attack by an unjust aggressor. Duress involves committing a crime under threats of death or grievous bodily harm. Necessity only comes into play when the first two defences do not fit, "when the accused contends that his or her actions were justifiable or excusable in the face of any other kind of danger."

For Dudley and Stephens, there was no self-defence, nor duress - the cabin boy presented no threat to them, only an opportunity for survival.

The Necessity Defence in Australia
A 1981 Victorian case, R v Loughnan, the Court set forth three requirements for the necessity defence:
1. The criminal act or acts must have been done only in order to avoid certain consequences, ones where either they or their family would have been subjected to "irreparable evil."

2. The accused must honestly and reasonably believe he or she was in a situation of "imminent peril."

3. A reasonable person in the same position would also believe they had no alternatives to the action taken to avoid the threat or peril.

Court decisions involving the defence of necessity use extreme words such as "immediate and irreparable harm," "overwhelming" and "compelling," showing it is not easy to meet the requirements of the defence.

On top of that, while the defendant's state of mind at the time of the crime is incredibly important, the defence does not mean they can just act according to their own "moral code."
The Defence of Necessity in NSW
The case of R v, Rogers 86 A Crim R 542 made clear that the defence in no way gives people a choice of what laws they will or will not follow, nor the opportunity to "...construct and apply their own set of values inconsistent with those implicit in the law." For Dudley and Stephen, this would mean that despite almost uniform repugnance of cannibalism, it was the killing, and not the eating that was their undoing.

With regards to the defence of necessity, it is the accused that bears the onus to give evidence supporting this defence and it is the crown's responsibility to negate it beyond a reasonable doubt (as it is with the defence of self defence).

Meeting a Tough Burden
What of those unfortunate sailors convicted of murder after hunger drove them to the act? The 1884 opinion sums it up thus:
A man who, in order to escape death from hunger, kills another for the purpose of eating his flesh, is guilty of murder; although at the time of the act he is in such circumstances that he believes and has reasonable ground for believing that it affords the only chance of preserving his life.

Despite 18 days adrift with few options for food (something necessary for life), the court found there was no defence to their actions.

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The Defence of Necessity - When Can It Be Used?

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Ask any law student about the most memorable English law case read in criminal law class. Chances are that many would name "Queen v. Dudley and Stephens" or "the lifeboat case." This infamous case involved four seamen who were shipwrecked on a lifeboat in 1884.

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Click here to obtain a Word version of this document.

Overview

1. In some cases, it may be alleged that the accused committed an offence involuntarily, in a state of "automatism" (see, e.g., R v Falconer (1990) 171 CLR 30; Hawkins v R (1994) 179 CLR 500).

2. The consequences of successfully raising the defence[1] of automatism depend on the cause of the automatism:

Where it was caused by a "disease of the mind" it is considered to be "insane automatism", and the appropriate verdict is not guilty because of mental impairment;[2]

Where it was caused by something other than a "disease of the mind" it is considered to be "sane automatism",[3] and the appropriate verdict is an acquittal (R v Falconer (1990) 171 CLR 30; Hawkins v R (1994) 179 CLR 500).

3. Due to these different consequences, where it is alleged that the accused acted in a state of automatism, the judge must determine which type of automatism (if any) to charge the jury about. This will largely depend on an assessment of what the evidence supports as being the possible cause of the state of automatism (R v Falconer (1990) 171 CLR 30; Hawkins v R (1994) 179 CLR 500).

4. In most cases, the evidence will solely point to one particular type of automatism, and charging the jury will be relatively straightforward. For example:

Where the only possible cause of the state of automatism is a "disease of the mind", the judge should direct the jury about the defence of mental impairment,[4] relating the evidence of automatism to the requirements of that defence.

Where the only possible cause of the state of automatism is something other than a "disease of the mind", the judge should direct the jury about the requirement for a voluntary act,[5] relating the evidence of automatism to that requirement.

5. However, in rare cases there will be competing explanations of the cause of the state of automatism, with some evidence suggesting that it was caused by a "disease of the mind", and other evidence suggesting it was caused by something else.[6] In such cases the judge may need to explain the concept of a "disease of the mind" to the jury, and direct them that it is for them to decide:

Whether the accused acted in a state of automatism; and

Whether that state of automatism was caused by a "disease of the mind" (R v Falconer (1990) 171 CLR 30; R v Youssef (1990) 50 A Crim R 1).

6. In some cases the jury will also need to be directed that evidence of automatism may also be relevant to the issue of intention (Hawkins v R (1994) 179 CLR 500; Cvetkovic v R [2010] NSWCCA 329).

7. It is unclear what effect the Crimes (Mental Impairment) Act 1997 has had on the law in this area. In particular, it is unclear whether that Act has altered:

The burden of proof that applies in cases where both 'sane' and 'insane' automatism are in issue; or

The judge's duty to direct the jury about 'insane automatism'.

Structure

8. This topic proceeds in the following order:

An overview of the meaning of the term "automatism", and the difference between "sane" and "insane" automatism;

The interaction between automatism and intention;

The judge's role in cases where the defence is raised; and

The ways in which the jury should be charged.

9. As the law concerning automatism is a subset of the law concerning voluntariness, this topic should be read in conjunction with Voluntariness.
What is "Automatism"?

10. Consequently, a degree of awareness or cognition is not necessarily fatal to the defence of automatism. The issue is whether or not there was an absence of all the deliberative functions of the mind so that the accused acted automatically (R v Radford (1985) 42 SASR 266; R v Burr [1969] NZLR 736 per Turner J).

11. There is also a distinction between automatism and dissociation. It is possible to act voluntarily while in a dissociative state (Nolan v R WA CCA 22/5/97; R v Joyce [2005] NSWDC 13).[8]

12. The fact that the accused did not know that his or her actions were wrong is not relevant to the defence of automatism (R v Isitt (1978) 67 Cr App R 44; R v Hennessy [1989] 1 WLR 287).

13. Acting involuntarily due to the consumption of drugs or alcohol may be considered to be a type of automatism (see, e.g., R v Keogh [1964] VR 400). However, due to the specific issues raised by intoxication, the topic is addressed separately in Common Law Intoxication.
Loss of Memory

14. Amnesia is one of the main symptoms of having acted in a state of automatism. Where the defence is raised the accused will therefore usually claim to have no memory of the relevant events (R v King (2005) 155 ACTR 55).

15. While amnesia may indicate that the accused acted in a state of automatism, the fact that amnesia exists does not inevitably lead to that conclusion. There may be other explanations for amnesia, such as trauma resulting from the commission of the offence which caused the memory of it to be blocked (R v King (2005) 155 ACTR 55).

16. Conversely, the absence of amnesia does not necessarily mean that the accused acted voluntarily. For example, people who act in a state of dissociation may have some memory of the relevant events, even though they could not control their conduct at the time (R v King (2005) 155 ACTR 55. See also Donyadideh v R [1995] FCA 1425).
"Sane" and "Insane" Automatism

17. The consequences of successfully raising the defence of automatism depend on the cause of the automatism:

Where it was caused by a "disease of the mind" it is considered to be "insane automatism", and the appropriate verdict is not guilty because of mental impairment;[9]

Where it was caused by something other than a "disease of the mind" it is considered to be "sane automatism", and the appropriate verdict is an acquittal (R v Falconer (1990) 171 CLR 30; Hawkins v R (1994) 179 CLR 500).

What is a "disease of the mind"?

18. The expression "disease of the mind" is synonymous with "mental illness" (R v Falconer (1990) 171 CLR 30; R v Radford (1985) 42 SASR 266).

19. To fit within the definition of a "disease of the mind", the accused must have been suffering from some kind of mental disease, disorder or disturbance, rather than "mere excitability, passion...stupidity, obtuseness, lack of self-control and impulsiveness". A "disease of the mind" exists where a person's ability to understand is thrown into "derangement or disorder" (R v Porter (1933) 55 CLR 182).

20. Historically, the courts used two different tests to determine what mental conditions should be considered to be "diseases of the mind":

1. The recurrence/continuing danger test: A mental condition is a "disease of the mind" if it is prone to recur (see, e.g., R v Carter [1959] VR 105; Bratty v AG for Northern Ireland [1963] AC 386 per Lord Denning; R v Meddings [1966] VR 306; R v Burgess [1991] 2 QB 92);

2. The internal/external test: A mental condition is a "disease of the mind" if it is "internal" to the accused (as opposed to arising from an external cause) (see, e.g., R v Quick [1973] QB 910; R v Sullivan [1984] AC 156; R v Radford (1985) 42 SASR 266; R v Hennessy [1989] 2 All ER 9).

21. The fundamental distinction is between those mental states which, although resulting in abnormal behaviour, are or may be experienced by normal people (e.g., a state of mind resulting from a blow to the head), and those which are never experienced by or encountered in normal people (R v Falconer (1990) 171 CLR 30 per Gaudron J).

22. The sound/unsound mind test incorporates aspects of both of the previous tests, but differs slightly:

It is similar to the internal/external test in that a condition that is solely caused by an external stimuli will not be a "disease of the mind". However, it differs in that it classifies an underlying infirmity that is triggered by an external stimuli as a "disease of the mind".

It is similar to the recurrence test insofar as a mental state that is prone to recur will normally be classified as a "disease of the mind" (as the likelihood of recurrence will generally indicate a mind that is diseased or infirm). However, the fact that a condition is prone to recur is not conclusive (R v Falconer (1990) 171 CLR 30 per Toohey, Gaudron, Deane and Dawson JJ; Mason CJ, Brennan and McHugh JJ dissenting. See also R v Radford (1985) 42 SASR 266; R v Youssef (1990) 50 A Crim R 1; Woodbridge v R [2010] NSWCCA 185).

23. The expression "disease of the mind" is not to be narrowly construed. The dichotomy is not between a mind affected by psychotic disturbances and a mind affected by less serious ailments. The distinction is between those minds which are healthy and those suffering from an underlying pathological infirmity (Woodbridge v R [2010] NSWCCA 185).

24. Where drugs or alcohol are involved, the classification of the resulting state will depend on the role played by those substances:

Where the accused suffers from an underlying condition (e.g., epilepsy) which was triggered by the drugs or alcohol, the resulting state of automatism will be classified as "insane" (see, e.g., R v Meddings [1966] VR 306).

Where the accused's mind is simply not working properly due to the effects of the drugs or alcohol, the resulting state of automatism will be classified as "sane" (R v Carter [1959] VR 105; R v Quick [1973] QB 910; R v Sullivan (1984) AC 156).[10]

25. However, the categories of sane automatism are not limited to those which have been mentioned in the cases to date (R v Pantelic (1973) 1 ACTR 1).
Examples of "diseases of the mind"

26. Examples of conditions which have been stated to be diseases of the mind include:

Major mental illnesses such as schizophrenia (R v Falconer (1990) 171 CLR 30; R v Radford (1985) 42 SASR 266);

Brain injuries, tumours or disorders (R v Hughes (1989) 42 A Crim R 270; Nolan v R WA CCA 22/5/97);

Hyperglycaemia (caused by excessive blood sugar levels) (R v Hennessy [1989] 1 WLR 287).

Physical diseases which affect the soundness of mental faculties, such as cerebral arteriosclerosis (R v Kemp [1957] 1 QB 399; R v Radford (1985) 42 SASR 266);

Some cases of dissociation and epilepsy (see below) (R v Falconer (1990) 171 CLR 30 per Deane and Dawson JJ).

27. Examples of conditions which have been stated not to be diseases of the mind include:

Concussion from a blow to the head (R v Scott [1967] VR 276; R v Wogandt (1988) 33 A Crim R 31);

Hypoglycaemia (caused by excessive insulin intake) (R v Quick [1973] QB 910; August v Fingleton [1964] SASR 22);

Drug-induced psychosis (R v Sebalj [2006] VSCA 106; R v Whelan [2006] VSC 319);

Some cases of dissociation and epilepsy (see below) (R v Falconer (1990) 171 CLR 30 per Deane and Dawson JJ).

28. Sleepwalking is usually considered to be a form of sane automatism (see, e.g., R v Parks [1992] 2 SCR 871; R v Carter [1959] VR 105; R v Youssef (1990) 50 A Crim R 1). However, this view has been disputed in England (see R v Burgess [1991] 2 QB 92).
Dissociation

29. The shock can be the product of a physical or emotional blow (a "psychological trauma") (R v Falconer (1990) 171 CLR 30 per Toohey J; R v Radford (1985) 42 SASR 266).

30. If the shock acted upon some underlying infirmity of mind to produce the automatism, it will be a case of insane automatism. If the shock produces a transient malfunction of an otherwise sound mind it will be sane automatism (R v Falconer (1990) 171 CLR 30; R v Milloy [1993] 1 Qd R 298).

31. The key question is whether the accused's actions were caused by the shock (sane automatism), or whether they were caused by the susceptibility of the accused's mind to being affected by shock (insane automatism) (R v Falconer (1990) 171 CLR 30 per Mason CJ, Brennan and McHugh JJ).
Epilepsy

32. Epilepsy may have a number of different causes, such as brain damage due to birth trauma, head injuries or brain tumours that occur at any stage of life, or cerebral infections from various diseases (R v Youssef (1990) 50 A Crim R 1).

33. The appropriate classification depends on whether the epileptic seizure in issue falls within the definition of "disease of the mind":

If the seizure is the reaction of an unsound mind to its own delusions or external stimuli (e.g., where it is caused by brain damage due to birth trauma), any resulting automatism will be classified as "insane";

If the seizure is the reaction of a sound mind to external stimuli (e.g., where it is directly and immediately caused by a blow to the head), any resulting automatism will be classified as "sane" (see, e.g., R v Youssef (1990) 50 A Crim R 1; R v Meddings [1966] VR 306).

34. If it is unclear what the cause of the epilepsy is, the question of whether or not it is a "disease of the mind" (and thus whether any resulting state of automatism is sane or insane) should be left to the jury to determine (R v Youssef (1990) 50 A Crim R 1).
Consequences of acting in a state of sane automatism

35. If the accused committed the relevant act in a state of "sane automatism" he or she must be acquitted (R v Falconer (1990) 171 CLR 30; Hawkins v R (1994) 179 CLR 500).

36. It is important to keep in mind that the issue is not simply whether there was "automatism", but whether the acts of the accused were voluntary, in the sense that they were the result of his or her conscious volition (R v Falconer (1990) 171 CLR 30 per Toohey J; R v Pantelic (1973) 1 ACTR 1).
Consequences of acting in a state of insane automatism

37. This means that unlike cases of "sane automatism" (see above), the accused must not be acquitted on the grounds of having acted involuntarily. Instead, the jury must consider whether the requirements of the defence of mental impairment have been met:[13]

If they have been met, then the accused must be found not guilty on the basis of mental impairment;

If they have not been met, then the accused must be convicted[14] despite the fact that he or she acted involuntarily (R v Falconer (1990) 171 CLR 30; R v S [1979] 2 NSWLR 1; R v Radford (1985) 42 SASR 266; Hawkins v R (1994) 179 CLR 500).[15]

38. Evidence of insane automatism must not be considered in relation to the issue of voluntariness (Hawkins v R (1994) 179 CLR 500).[16]
Onus of proof

39. In cases where only sane automatism is in issue, the onus of proof is clear. It is for the prosecution to prove, beyond reasonable doubt, that the accused acted voluntarily. If it is reasonably possible that the accused acted involuntarily due to a state of sane automatism, he or she must be acquitted (R v Falconer (1990) 171 CLR 30).

40. The onus of proof is also clear in cases where only insane automatism is in issue.The onus of proving the defence of mental impairment rests on the party who raises the issue. It must be proved on the balance of probabilities (Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s21).

41. However, difficulties arise in cases where it is possible that the state of automatism was either sane or insane. In particular, it is unclear what the verdict should be in a case where:

The jury finds that it is likely that the accused acted involuntary due to a "disease of the mind" (and, if asked, would be satisfied that the requirements of the defence of mental impairment have been proven on the balance of probabilities); but

Cannot exclude beyond reasonable doubt the possibility that the state of automatism was caused by something other than a "disease of the mind".

42. This issue was addressed in R v Falconer (1990) 171 CLR 30, in the context of the Western Australian Criminal Code. The majority (Toohey, Gaudron, Deane and Dawson JJ) held that the accused should be acquitted in such circumstances, as the prosecution will have failed to prove, beyond reasonable doubt, that his or her acts were voluntary.

43. It is not clear, however, whether this is currently the law in Victoria, due to section 20 of the Crimes (Mental Impairment) Act 1997, which states:
(1) The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that-

(a) he or she did not know the nature and quality of the conduct; or

(b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

(2) If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.

44. It is arguable that s20(2) requires a person to be found not guilty by reason of mental impairment whenever the requirements in s20(1) have been proven on the balance of probabilities (see s21), even if it is possible that he or she acted involuntary due to another cause.

45. However, it should be noted that the Crimes (Mental Impairment) Act 1997 was enacted after Falconer was decided, and does not explicitly address the issue of voluntariness. It is therefore also arguable that the Act was not intended to change the general principles outlined in Falconer, and that even if the requirements of s20(1) have been proven on the balance of probabilities, the accused must be acquitted if it is reasonably possible that the accused acted involuntarily due to sane automatism.
Automatism and Intention

46. For example, where the accused is charged with murder, and claims that he or she was acting in a state of sane automatism due to suffering a blow to the head, the jury may:

Reject the defence of automatism, if they are satisfied that, despite his or her injury, the accused was still acting voluntarily;

Acquit the accused of murder on the grounds that he or she lacked the specific intention required for murder (to kill or cause really serious injury) due to the "mental confusion" caused by the head injury (R v Hall (1988) 36 A Crim R 369).

47. The accused should not be acquitted merely because his or her mind was not functioning properly. Even when people's minds are not working as they ordinarily do (e.g., where, due to stress, their minds block out the moral inhibitions which ordinarily control their lives), they can act intentionally (R v Isitt (1978) 67 Cr App R 44).
Judge's Role

48. Where automatism is in issue, the judge must resolve two issues before charging the jury:

1. Whether a proper evidential foundation for the defence has been laid; and

2. Whether the evidence shows the case to be one of sane or insane automatism (R v Falconer (1990) 171 CLR 30; R v Youssef (1990) 50 A Crim R 1; R v Burgess [1991] 2 QB 92).

Is there a proper evidential foundation for the defence?

49. A claim of involuntariness which is not based on mental illness is almost certain to be treated as frivolous unless supported by medical evidence that identifies a mental state in which acts can occur independently of the will, assigns a causative explanation for that state and postulates that the accused did or may have experienced that state (R v Falconer (1990) 171 CLR 30 per Gaudron J).

50. Sane automatism is, by its nature, extraordinary and so the evidence must be very persuasive before involuntariness will be a reasonable possibility (R v Falconer (1990) 171 CLR 30 per Gaudron J).

51. Medical evidence is especially important where the relevant act is said to have been caused by a "medical or pharmacological condition". In such cases, there must be evidence from an expert in the relevant field supporting that proposition (DPP v Olcer [2003] VSC 457).

52. Even if the judge is sceptical about whether the accused acted involuntarily, if there is sufficient evidence to raise the issue of automatism it must be left to the jury to decide (R v Radford (1985) 42 SASR 266; R v Scott [1967] VR 276).

53. It will generally not be sufficient for the accused to simply say "I had a black-out" or "I can't remember what happened", even if that evidence is credible (R v Cottle [1958] NZLR 999; Bratty v AG for Northern Ireland [1963] AC 386 per Lord Denning; Cook v Atchison [1968] Crim LR 266).
Is the case one of sane or insane automatism?

54. Where there is sufficient evidence of automatism to leave the issue to the jury, the judge must determine which type of automatism (sane, insane or both) is supported by that evidence (Hawkins v R (1994) 179 CLR 500; R v Hennessy [1989] 1 WLR 287; R v Falconer (1990) 171 CLR 30).
Evidence of sane automatism

55. Where there is sufficient evidence to raise the issue of sane automatism the jury must be directed about it, even if a direction is not raised or sought by defence counsel (R v Falconer (1990) 171 CLR 30; R v Milloy [1993] 1 Qd R 298).

56. However, the judge must not direct the jury about sane automatism if the only possible cause of the automatism was a "disease of the mind" (Hawkins v R (1994) 179 CLR 500; R v Radford (1985) 42 SASR 266; R v Milloy [1993] 1 Qd R 298; R v Arnold [2002] QCA 3).
Evidence of insane automatism

57. In a number of cases it has been held that, where it is reasonably possible that the state of automatism was caused by a "disease of the mind", the judge must give a direction about insane automatism, regardless of whether such a direction is sought by either party (See, e.g., Hawkins v R (1994) 179 CLR 500; R v Starecki [1960] VR 141; R v Meddings [1966] VR 306; R v Joyce [1970] SASR 184; R v Ayoub [1984] 2 NSWLR 511; Nolan v R WA CCA 22/5/97).

58. It is not clear, however, whether this is currently the law in Victoria. Section 22 of the Crimes (Mental Impairment) Act 1997 states:
(1) The question of mental impairment may be raised at any time during a trial by the defence or, with the leave of the trial judge, by the prosecution.

(2) If there is admissible evidence that raises the question of mental impairment and a jury has been empanelled-

(a) the judge must direct the jury to consider the question and explain to the jury the findings which may be made and the legal consequences of those findings; and

(b) if the jury finds the accused not guilty, it must specify in its verdict whether or not it so finds because of mental impairment.

59. It seems clear from this provision that a direction about insane automatism must be given if there is sufficient evidence to raise the issue, and a direction is sought by defence counsel.

60. It also seems clear that a direction about insane automatism may be given, at the judge's discretion, if there is sufficient evidence to raise the issue, and a direction is sought by the prosecution.

61. However, it is unclear whether the judge may refuse a prosecution request to direct the jury about insane automatism, where there is sufficient evidence to raise the issue.

On the one hand, the approach adopted in cases such as Hawkins v R (1994) 179 CLR 500 would suggest that the judge has a duty to direct the jury about the issue in such circumstances;

On the other hand, the wording of s22(1) would suggest that the judge has a discretion to refuse to give such a direction.

62. Similarly, it is also unclear whether the judge must direct the jury about insane automatism where there is sufficient evidence to raise the issue, but a direction is not sought by either party:

The approach adopted in cases such as Hawkins v R (1994) 179 CLR 500 would suggest that the judge has a duty to direct the jury about the issue in such circumstances;

However, it is not clear from the wording of s22 that the judge has the power to give a direction about insane automatism on his or her own motion. It is possible that a direction may only be given if raised by the defence or the prosecution.

Evidence of sane and insane automatism

63. If it is reasonably possible that the state of automatism was caused either by a "disease of the mind" or by something else, the jury may need to be directed about both sane and insane automatism (R v Falconer (1990) 171 CLR 30; R v Radford (1985) 42 SASR 266; R v Youssef (1990) 50 A Crim R 1; Hawkins v R (1994) 179 CLR 500).
Content of the Charge

64. The charge will differ depending on whether the evidence supports the issue of sane automatism, insane automatism or both forms of automatism. These possibilities are addressed in turn below.
Charging the jury about sane automatism alone

65. The jury should therefore be directed in accordance with the principles outlined in Voluntariness.

66. The judge should direct the jury that the issue is not whether the accused suffered from the alleged condition (e.g., psychological blow dissociation), but whether he or she acted involuntarily as a result of that condition (R v Falconer (1990) 171 CLR 30 per Toohey J).

67. Care must be taken not to suggest that it is for the accused to prove that he or she suffered from the alleged condition, or for the accused to prove that that condition caused him or her to act involuntarily. It is for the prosecution to prove beyond reasonable doubt that the accused was not acting involuntarily due to a state of automatism (R v Manly SA CCA 22/8/95. See also R v Falconer (1990) 171 CLR 30).
Charging the jury about insane automatism alone

68. Where the evidence solely supports insane automatism, the judge should direct the jury using Charge: Mental Impairment, relating the evidence of automatism to the requirements of that defence.

69. The judge must take care not to lead the jury to believe that the defence of mental illness will only be proven if they find that the accused acted involuntarily due to a disease of the mind. The defence of mental impairment may be proven even if the accused acted voluntarily (e.g., if the accused did not know that what he or she was doing was wrong, despite acting voluntarily) (R v Radford (1985) 42 SASR 266; Taylor v R (1978) 22 ALR 599).
Charging the jury about both sane and insane automatism

70. In some cases it will be for the jury to decide whether, upon the evidence they accept, the automatism was sane or insane in nature (R v Falconer (1990) 171 CLR 30; R v Youssef (1990) 50 A Crim R 1).

71. Due to the uncertainties surrounding the onus of proof in this area (see above), it is not possible to provide firm guidance about the best way to charge the jury in such cases. Consequently, the Charge Book does not contain a charge on this issue.

72. In drafting a charge on this issue, it is essential that the judge carefully explain the legal meanings of "voluntariness" and "disease of the mind" to the jury (R v Radford (1985) 42 SASR 266; R v King (2005) 155 ACTR 55).
Charging the jury about automatism and intention

73. In determining whether this direction is required, the judge must consider whether a direction is requested or whether there are substantial and compelling reasons for giving a direction in the absence of any request (see Jury Directions Act 2015 ss14 - 16).

74. For example, where the defence of automatism is raised in relation to a crime of specific intent, and it is possible the accused acted in a state of "mental confusion" rather than automatism, the judge must:

Explain the difference between automatism and mental confusion;

Direct the jury that they must acquit the accused if it is reasonably possible that he or she acted involuntarily due to automatism;

Tell the jury that if they reject the possibility that the accused acted involuntarily due to automatism, they must next determine whether or not the accused lacked the requisite intention due to mental confusion;

Direct the jury that they must acquit the accused if it is reasonably possible that he or she did not form the requisite intention due to mental confusion (R v Hall (1988) 36 A Crim R 369. See also Cvetkovic v R [2010] NSWCCA 329).

75. The jury must not consider the issue of intention until any issues of voluntariness or mental impairment have been resolved (Hawkins v R (1994) 179 CLR 500).
Charging the jury about loss of memory

76. In such circumstances, it may be appropriate to:

Remind the jury of the accused's claim that he or she could not recall the events in question;

Summarise any evidence that supports the accused's claim;

Tell the jury that, even if they accept that the accused had lost his or her memory, that does not mean he or she acted involuntarily or without the requisite intention. The question is not what the accused remembered or did not remember, subsequent to the event in issue, but what his or her state of mind was at the relevant time; and

Tell the jury that, if they accept that the accused had lost his or her memory, they must bear in mind the possibility that there might be some explanation for the relevant events which the accused might have offered, had he or she had a recollection (see, e.g., Russell v HM Advocate [1946] SLT 93; R v Podola [1960] 1 QB 325; Broadhurst v R [1964] AC 441).

Charging the jury about expert evidence

77. In most cases where automatism is in issue, an expert witness will have given evidence about the matter. It will therefore generally be appropriate to give either Charge: Contested Expert Evidence or Charge: Uncontested Expert Evidence. See General Principles of Opinion Evidence for further information.

78. Depending on the circumstances, it may be appropriate to tell the jury that it is not for an expert witness such as a psychiatrist, to determine whether the accused suffered from a "disease of the mind". That is a question of fact for the jury to determine, based on the judge's definition of the term (Woodbridge v R [2010] NSWCCA 185; R v Falconer (1990) 171 CLR 30).
Notes

[1] While automatism is not technically a defence - it is a claim that the prosecution has not proven one of the elements of the offence (voluntariness) - for the sake of simplicity it will be referred to as a defence.

[2] This verdict will only be appropriate if the requirements of the defence of mental impairment have also been met: see below.

[3] While historically the term "non-insane automatism" was used, the term "sane automatism" is now preferred ( R v Milloy [1993] 1 Qd R 298).

[4] See Mental Impairment.

[5] See Voluntariness.

[6] For example, a dissociative state may be caused by a psychological blow ("sane automatism") or by an underlying mental illness ("insane automatism"). See "Dissociation" below.

[7] Evidence that the accused's control was impaired or reduced may be relevant to the issue of intention. See "Automatism and Intention" below.

[8] See "Dissociation" below for further information about dissociation.

[9] This verdict will only be appropriate if the requirements of the defence of mental impairment have also been met: see below.

[10] See Common Law Intoxication for further information concerning involuntary behaviour caused by drugs or alcohol.

[11] While a person who acts in a dissociative state will ordinarily act involuntarily, it appears that it is possible to act voluntarily while in a dissociative state (see, e.g., Nolan v R WA CCA 22/5/97; R v Joyce [2005] NSWDC 13). The issue is thus not simply whether or not the accused was in a state of dissociation, but whether he or she acted involuntarily as a result of the dissociation.

[12] See Voluntariness.

[13] See Mental Impairment for information concerning the requirements of the defence.

[14] As long as all the elements of the offence (other than voluntariness) have been proven.

[15] While theoretically possible, such cases are unlikely to arise in practice, as in most cases where the accused acted involuntarily due to insane automatism he or she will not have known the nature and quality of what he or she was doing, or will not have known that his or her conduct was wrong ( R v Radford (1985) 42 SASR 266; R v Falconer (1990) 171 CLR 30 per Mason CJ, Brennan and McHugh JJ).

[16] Such evidence may, however, be relevant to the issue of intention: see below.

[17] See "The Evidentiary Presumption of Voluntariness" in Voluntariness for information concerning the nature of this evidentiary burden.

[18] See "Automatism and Intention" above.

Last updated: 29 June 2015

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Click here to obtain a Word version of this document. Overview In some cases, it may be alleged that the accused committed an offence involuntarily, in a state of "automatism" (see, e.g., R v Falconer (1990) 171 CLR 30; Hawkins v R (1994) 179 CLR 500).

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On Father's Day: Robert Farquharson - #3

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TABLE OF PROVISIONS PART 1.1--FORMAL MATTERS 1. Purpose 2. Commencement 3. Definitions 3A. Notes PART 1.2--APPLICATION OF THIS ACT 4. Courts and proceedings to which Act applies 5. Extended application of certain provisions 6. Territories 7. Act binds Crown 8. Operation of Acts 9. Application of common law and equity 10.

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10.5 - Rules of evidence

Section 215(1)(d) provides that the Family Division "may inform itself on a matter in such manner as it thinks fit, despite any rules of evidence to the contrary".

While the CYFA provides flexible procedural provisions in s215(1), such provisions cannot be used to "admit the rules of evidence through a side door" ( Secretary, Department of Human Services v Sanding [2011] VSC 42 at [130]).

In relation to the words "may inform itself ... in such manner as it thinks fit" in s215(1)(d) of the CYFA, Bell J in Secretary, Department of Human Services v Sanding [2011] VSC 42 (at [131]) quoted from Weinstein v Medical Practitioners Board v Victoria [2008] VSCA 193 (at [28]), a case in which Maxwell P considered an analogous provision to s215(1)(d) in the Medical Practice Act 1994:

The words 'may inform itself ...' were plainly intended to have work to do. They have a meaning and purpose quite distinct from the meaning and purpose of the words 'not bound by the rules of evidence'. Far from the phrase 'may inform itself' being negated or neutralised by other provisions, these words play a necessary part in defining the character of the formal hearing which the panel conducts. For the purposes of 'determining the matter before it', the panel is authorised to 'inform itself in any way it thinks fit' subject always to the overriding obligation to accord procedural fairness.

The information before the Court can only form the proper basis for the decision if it is "logically probative, reliable and relevant", and parties have been afforded the opportunity to comment on it ( Secretary, Department of Human Services v Sanding [2011] VSC 42 at [132]). Bell J further stated at [133]:

The material which may properly support a decision of a court or tribunal can legitimately come from a variety of sources, might occupy different points along a spectrum of probative force and reliability and, depending on the issues and circumstances, might require different treatment. Hearsay evidence is admissible if it is fairly reliable, although the weight to be given to it will need to be considered. Evidence which is not the best evidence may be admitted, but if it is challenged and the issue is important it is the best evidence which may be required. The court or tribunal may act on written submissions containing assertions of fact, and statements made from the bar table by the parties or their legal representatives, but if the asserted facts are in serious dispute and concern important issues, it may be necessary to insist on much more. (citations omitted)

Section 215(7) of the CYFA provides that nothing in s215(1)(d) prevents the application of Part 3.10 of the Evidence Act 2008. See Uniform Evidence Manual, Part 3.10 - Privileges.

The Evidence Act 2008 does not affect the operation of the provisions of the CYFA ( Evidence Act 2008 ss3 (definition of "Victorian court"), 4, 8). These provisions read in conjunction with s215(1)(d) of the CYFA, mean that the provisions of the Evidence Act 2008 are not mandatorily applied in the Court.

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Section 215(1)(d) provides that the Family Division "may inform itself on a matter in such manner as it thinks fit, despite any rules of evidence to the contrary". While the CYFA provides flexible procedural provisions in s215(1), such provisions cannot be used to "admit the rules of evidence through a side door" ( Secretary, Department of Human Services v Sanding [2011] VSC 42 at [130]).

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The term "hearsay" refers to an out-of-court statement made by someone other than the witness reporting it. For example, while testifying in John's murder trial, Anthony states that John's best friend told him that John had killed the victim. Anthony did not hear John make the admission firsthand, making testimony of this statement "hearsay." To explore this concept, consider the following hearsay definition.

Definition of Hearsay
Noun

1. Testimony based on what a witness has heard from another person, of which he has no personal knowledge or experience.

2. Unverified information acquired from another person, which is not part of one's own knowledge.

Origin
1525-1535 Translated from Middle French par ouïr dire (hear say)

Validity and Use of Hearsay Evidence

The question of whether a statement is hearsay or substantiation of some relevant fact can be determined by deciding whether the parties involved care whether the statement is true or false. For example, a man named James stumbles out of a burning building and says to a witness "Andrew started the fire!" Both the prosecution and the defense care whether Andrew started the fire, making the witness's testimony of James' statement hearsay. Because of the hearsay rule, the witness's testimony could not be used as proof that the fire was started by Andrew, but it could be used as proof that James was alive and able to speak after the fire, or that he had been in the building while the fire was burning (if the witness saw him come out).

As another example, if Jane overheard Bill calling Fred a liar, Fred's lawyer could ask Jane to restate what Bill said - not to prove that Freed is a liar - but to show that Bill does not like Fred, or that he has a poor opinion of him. Such statements can also be used to show a person's state of mind in a particular situation.

Double Hearsay

Double hearsay is an out of court statement that contains another hearsay statement. For example, John testifies that Rob's brother told him that Maryann said that Rob had killed the victim. Double hearsay statements are generally considered to be so far from the source that they are unlikely to be admitted even as proof of an alternate fact.

The Rule of Hearsay in Court

In general, hearsay is excluded from all court cases. This is primarily because hearsay is considered to be unreliable information that cannot be verified by direct cross-examination of the person purporting to have direct knowledge. Rejecting hearsay information furthers the goal of the judicial system to not convict or set people free based on mistaken or falsified information

Exceptions to the Hearsay Rule

There are two main articles with it comes to hearsay exceptions: (1) when the declarant is unavailable, and (2) when the availability of the declarant does not matter.
Exceptions When the Declarant is Unavailable

Declaration against interest - a statement that would only incriminate the witness so it can be reasonably assumed that the statement is true, or the witness would not have stated it.

Dying declaration - a person's last words before dying may be admitted in some cases.

When the Availability of the Declarant Does not Matter

Excited utterance - a statement made in immediate response to a shocking or startling event.

Present sense impression - a spontaneous statement that communicates the declarant's sense of the condition of something, or the state of an event. Such a statement must be made during or immediately following the event.

Declarations of Present State of Mind - a statement of the declarant's "present state of mind" at the time of the event may be admissible as proof of the declarant's intent.

The Catchall Rule

The rules of hearsay evidence leave a number of situations to the discretion of the court. Simply put, the catchall rule does not require proof that the witness is unable to testify if the hearsay evidence meets certain conditions:

It has a sound element of trustworthiness

It is used to help prove materials facts

It more adequately answers a question than other reasonably obtainable evidence

The admission of the hearsay evidence will advance the cause of justice

Other parties in the case have been notified that the hearsay will be offered into evidence

Exclusions to the Hearsay Rule

There are two types of statements that are not considered hearsay according to the Federal Rules of Evidence. This includes (1) admission by a party-opponent and (2) prior statement of a witness.

Admission by a Party-Opponent

This type of statement is one made against the opposing party and it is excluded from the hearsay rule if it meets at least one of five requirements:

1. The statement is the declarant's own statement in an individual capacity.

2. The statement is an adoption of a belief that it is true.

3. The statement was made by a person with the authorization to make it.

4. The statement was made by the party's agent and it concerned a matter that falls within the scope of the agency or employment during the relationship.

5. The statement was made by a co-conspirator with the party against whom the testimony is offered, and the statement was in the advancement or carrying-out of their plan.

Prior Statement of a Witness

A statement made by a witness at a prior time is not considered hearsay if the person who made the statement is currently testifying, can be cross-examined, and the statement meets one of the following:

The prior statement was made under oath at a previous proceeding, and is inconsistent with the declarant's current statement.

The statement made at a prior time is consistent with the current testimony and is offered in order to disprove claims that the declarant had fabricated a statement.

The prior statement was an identification of a person made after becoming aware of that person

Hearsay and Documents

While the law considers some documents as hearsay evidence, Federal Rule 902 specifically allows refers the use of self-authenticating documents with no requirement for additional proof that the documents are genuine. Such documents include:

1. Domestic public documents that have been signed and sealed

2. Domestic public documents that have not been sealed, but that bear a public officer's signature

3. Foreign public documents

4. Copies of certified public records

5. Official publications

6. Newspapers

7. Certified foreign records of regular activity

8. Presumptions under acts of congress

Hearsay and the Confrontation Clause

In criminal court cases, the Sixth Amendment outlines the Confrontation Clause, which goes hand-in-hand with the hearsay rule to exclude out-of-court statements from court proceedings. This clause assures the defendant's right to face and cross-examine witnesses who make statements against them. For example, if Chloe tells the police that Jim had waved a gun at her when she parked near his car, the police officer could only testify to Chloe's statement if Jim or his attorney has had the opportunity to cross-examine Chloe regarding the statement.

Landmark Hearsay Cases

The rules governing whether certain hearsay evidence may be admitted at trial are continually changing to meet the needs of a complex society. In both the Supreme Court and legislative initiatives, a variety of testimonial issues is addressed.
Giles v California
In the 2008, the Supreme Court case of Giles v California, the question of hearsay evidence of domestic violence in the case of the murder of Brenda Avie by her ex-boyfriend Dwayne Giles was considered. Giles claimed during trial that he had acted out of self defense. The trial court had allowed police officers to testify that Avie had made statements to them prior to her death claiming Giles had threatened her.

While Giles would otherwise have had the right to confront Avie and cross-examine her about her statements, the Supreme Court ruled that he had forfeited that right when he had intentionally made the witness unavailable for trial. Concurring opinions filed by Justices Thomas and Alito pointed out that Avie's domestic violence report was not testimonial, and would not have been barred by the confrontation clause.
State of Colorado v Ennio Daniel
Colorado is one of the first states to add an exception to the hearsay rule for victimized developmentally disabled adults that is similar to the protection already provided for victimized children. In the 2011 trial of 51-year old Ennio Daniel it was brought out that he had invited a 25-year old woman with Down syndrome to lunch and a movie. She evidently was led to believe other co-workers would be present. Daniel instead drove the woman to a friend's house where he held and raped her several times throughout the day.

Trials involving a victim with developmental disabilities are difficult, as the victim may be ineffective in communicating from the witness stand, and intimidated by facing the perpetrator and others in the courtroom. This case involved the first use of Colorado's new hearsay law, enabling the victim to testify in a private room before a video camera, her testimony helping convict Daniel of two counts of sexual assault on an at-risk adult, and one count of kidnapping.

Related Legal Terms and Issues

Defendant - A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.

Plaintiff - A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.

Witness - A person who sees something, such as a crime or accident, taking place.

Declarant - A person making a declaration or statement, usually in relation to a legal proceeding.

Material Fact - A fact that a reasonable person would conclude is pertinent to the decision to be made, or which, if left out, would reasonably result in a different decision being made.

Cross Examination - To question a person or witness who has already been questioned by the opposing side regarding answers or information previously given.

Developmentally Disabled Adult - An adult person suffering from a chronic mental or physical impairment that affects his/her life in key areas such as learning, language, self-help, independent living, and mobility.

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Hearsay Evidence - Definition, Examples, Cases, Processes

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The term "hearsay" refers to an out-of-court statement made by someone other than the witness reporting it. For example, while testifying in John's murder trial, Anthony states that John's best friend told him that John had killed the victim. Anthony did not hear John make the admission firsthand, making testimony of this statement "hearsay."

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Legally Blonde (2001) - Elle Wins! Scene  (11/11) | Movieclips

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ALM's Law.com online Real Life Dictionary of the Law. The easiest-to-read, most user-friendly guide to legal terms. Use it free!

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Seven men charged over Melbourne brawl, killing one

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Comprehensive up-to-date news coverage, aggregated from sources all over the world by Google News.

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Lisa Featherstone reveals the controversies that dogged the campaign to criminalise marital rape in Australia in the 1970s and 1980s in the 16 Days of Activism Against Gender Violence.
From 1976 to 1994, Australian jurisdictions introduced a raft of reforms to sexual assault laws. The new legislations expanded the definitions of rape and other forms of sexual assault, and reconsidered the treatment of victims on the stand. The legislative changes were driven by broader social and sexual shifts of feminism and the sexual revolution, including changing ideas about women's roles and expanding ideas about sexuality and sexual practice. Most of the reforms were broadly welcomed, and were seen to reflect women's shifting status within a modern society.

Yet there was one reform that caused substantial controversy: rape in marriage law reform. Though rape in marriage was ultimately criminalised in Australian states and territories, there was significant opposition to the idea that it should be a criminal offence for a husband to sexually assault his wife. Why was this, of all the reforms, so controversial?

The backdrop

The immunity of a husband had a long historical tradition, framed by British common law. The immunity of husbands was established by the eminent judge and jurist Sir Matthew Hale in 1736, in his oft-quoted pronouncement:

A husband cannot be guilty of rape upon his wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind to her husband which she cannot retract.

What this meant was that marriage was seen as a contract to sex between spouses, no matter how a woman might feel about a particular act of intercourse.

Consent was not part of the equation.

It was - within this framework - legally impossible to rape one's own wife, in both British and Australian jurisdictions. In cases of more general violence, a woman was technically offered some protection under laws of battery, but a husband could be charged only with physical, and not sexual, assault.

Changing times

By the mid twentieth century, the rising rates of divorce in Britain and Australia led to a conundrum of marital sex: at what point of a separation would a woman no longer be obliged to perform her wifely sexual duties?

A number of common law rulings in the United Kingdom suggested that a husband could expect sex from a wife even after divorce proceedings had begun, but not after a decree nisi had been granted. These rulings chipped away at a husband's right to sex, but were not a profound challenge to the idea that a husband had an expectation of sex as a core of the marital contract.

By the 1970s, however, this view was increasingly untenable. The feminist movement claimed that women had a right to bodily autonomy under any circumstance, and fought to provide support and socio-legal protection for women in cases of domestic violence and sexual assault.

Feminist influences were felt in the press and in government, and in South Australia the progressive Dunstan Labor government commissioned a Special Report, led by Her Honour Justice Roma Mitchell, to investigate sexual assault, including marital rape. The Mitchell Report strongly condemned the idea that a married woman had committed herself to indefinite vaginal (and anal) sex. But the Mitchell Report still did not suggest that the husband should lose his immunity: rather, it suggested that cases of marital sexual violence should be handled through the Family Court.

To the surprise of many, the South Australia government did not take on the Mitchell Report's moderate reforms: instead, the Labor party attempted to remove immunity - even while the spouses still lived together. As the Attorney-General noted, 'a woman should have the protection of the criminal law regardless of whether she was married, unmarried, living with the spouse or not'. The South Australian reforms sparked a series of legislative reforms across Australian states.

Opposition

But criminalising marital rape was far from easy.

Opposition to marital rape law reform came from a wide range of interest groups and individuals, covering a broad cross section of Australian society, including social conservatives, some religious groups, parliamentarians, and conservative women's groups. But for the majority who opposed criminalisation, at the core of their opposition was the idea that the family home, and in particular the marital bedroom, should not be controlled by the state.

Ultimately, opposition to marital rape law reform took three main forms: the fear of marital breakdown; the 'vindictive wife'; and the difficulty of proof.

Fears about marital breakdown

The most common - and seemingly persuasive - argument against the criminalisation of marital rape was that it would lead inevitably to family breakdown. Law reform was seen by mainstream conservatives, including members of the Liberal Party, as an 'attack on the family.'

The prioritising of marriage and family is interesting on two counts. Firstly, it obliterates the notion of consent. While concepts of consent were crucial to the general rape trial, in these debates over marital rape, consent is invisible, unimportant or dismissed.

Secondly, conservatives argued that, while violence against a wife was unseemly, it did not need to lead to the end of a marriage. In debates over the new legislation in New South Wales, one member of parliament claimed:

even after such an appalling event as rape in marriage, some marriages can be saved. However imperfect the institution of marriage may be, it is far too important to society for it to be endangered.

Here, the member does not deny that rape could and did occur, but that marriage - in terms of the individual and the institution - needed to be saved. This served to normalise gendered violence within marriage.

The 'vindictive wife'

We have seen already how little a wife's consent was considered in debates over marital sex: a real life woman was almost invisible in these discussions over masculine privilege. Where a woman did become visible, however, was when she became termed a 'vindictive wife'.

The vindictive wife was a concept developed to show the wife, not as a victim of violence, but as someone who gained power through her control over her body. She might, for instance, deny her husband sex because he had refused her money or quarrelled with her. She might claim to have a headache. Even more alarmingly, the vindictive wife might cry rape when an assault had not occurred. Any women might raise a false accusation against her husband, and it was widely argued in the media and in parliament that men required protection.

The difficulties of proof

The final common excuse for protecting a husband's immunity was that rape, as a crime, would be impossible to prove.

What happened in the sanctity of the family home - and between a couple who had previously been intimate - would be very hard to criminalise in practice. This argument was mounted by conservatives and progressives alike, with many criminologists and even some radical feminists agreeing that the new laws would offer little protection to vulnerable women.

Dealing with marital rape

Those who opposed law reform laid out simplistic reasons why legislative change could not, would not and should not work. What underlay the seemingly tidy debates over marital rape law reform were complex negotiations of gender, masculinity, and male sexual privilege.

Legislating marital rape challenged the sovereignty of the family, and encouraged state intervention into the private life and domestic realm. Further, suggesting that rape in marriage was possible demanded a rethinking of the category of 'rapist'. Far from being a stranger in a dark alley, he might now be an ordinary man, a husband and a father.

In the end, marital rape was criminalised in all Australian jurisdictions, starting with a partial criminalisation in South Australia in 1976, with full criminalisation starting in New South Wales and Victoria in 1981. Queensland was the last state to criminalise marital rape in 1989, with the Northern Territory following in 1994.

The loss of a husband's immunity went some way to acknowledging a woman's individual bodily autonomy and her right to consent to each and every act of sex. Nonetheless, intimate partner sexual violence remains under-reported and notoriously difficult to prosecute. Though there is now widespread social acknowledgement that a woman can be raped within a marriage or partnership, and there are legal protections in place, intimate partner sexual assault remains a profound problem within Australian society.

~

Queensland Women's Legal Service is a specialist community legal centre. The solicitors and social workers provide free advice on a range of family law and domestic violence matters. Women's Legal Service aims to help women in Queensland who do not qualify for Legal Aid and are unable to afford a private lawyer.

We can support them by donating here.
Lisa Featherstone is a Senior Lecturer in Australian History at The University of Queensland. Her latest book Sex Crimes in the Fifties with Andy Kaladelfos was recently published by Melbourne University Press. Lisa has published widely on sexuality, masculinity, childbirth, medicine and child health. She is currently chief investigator on an ARC discovery project, "Sexual Offences, Legal Responses and Public Perceptions: 1880s-1980s," with Andy Kaladelfos, Carolyn Strange and Nina Westera.
Copyright remains with individual authors who grant VIDA holding a perpetual, world-wide, royalty free and non-exclusive license to use, distribute, reproduce and promote content. For permission to re-publish any VIDA blog post, in whole or in part, please contact the managing editors at auswhn@gmail.com.au

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Rape in marriage: Why was it so hard to criminalise sexual violence? | Australian Women's History Network

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Lisa Featherstone reveals the controversies that dogged the campaign to criminalise marital rape in Australia in the 1970s and 1980s in the 16 Days of Activism Against Gender Violence. From 1976 to 1994, Australian jurisdictions introduced a raft of reforms to sexual assault laws.

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Sometimes the conditions for the release of an accused person on bail may include the entering into of an undertaking by a surety/sureties. The surety may also have to deposit a sum of money or other security. The surety has a responsibility after signing the bail to do their best to make sure that:

The accused person surrenders themselves into custody if required.

The accused person appears at court when required.

If the accused person doesn't come to court the surety may have to forfeit the amount set for the bail. However, a surety can apply for an order varying or cancelling that forfeiture. The surety's obligations under the bail continue until the matter is finalised or until they are discharged from their liability. It is an offence in Victoria for any person to indemnify, reimburse or guarantee any surety's obligation under the bail, or to offer to do so. The surety and other person may both be guilty of this offence, with a penalty of $2,275.05 or 3 months in prison.

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Sometimes the conditions for the release of an accused person on bail may include the entering into of an undertaking by a surety/sureties. The surety may also have to deposit a sum of money or other security. The surety has a responsibility after signing the bail to do their best to make sure that: The accused person surrenders themselves into custody if required.

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1800RESPECT would like to acknowledge the Traditional Custodians of this land and pay respect to Elders, both past and present and extend our acknowledgement to all Aboriginal and Torres Strait Islander people. Please be aware that this website may contain the names, images and voices of Aboriginal and Torres Strait Islander people who may now be deceased.

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TABLE OF PROVISIONS PART 1--PRELIMINARY 1. Purposes 2. Commencement 3. Definitions 3AAA. Definition of driver base 3AA. Circumstances in which person is to be taken to be in charge of a motor vehicle 3AB. Circumstances in which person is to be taken to be driving a motor vehicle 3AC.

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Australasian Legal Information Institute (AustLII), a joint facility of UTS and UNSW Faculties of Law.

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TABLE OF PROVISIONS PART 1--PRELIMINARY 1. Purposes 2. Commencement 3. Definitions 4. Application PART 2--GOVERNING PRINCIPLES 5. Sentencing guidelines 5AA. Court not to have regard to previous good character or lack of previous findings of guilt or convictions in certain circumstances 5A. Standard sentence scheme 5B. Sentencing for a standard sentence offence 6.

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Evidence in the Jill Meagher murder case

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Police have released photographs from their evidence books depicting key evidence and crucial locations in the Jill Meahger rape and murder investigation.

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Police charge Adrian Bayley with Meagher's rape and murder

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Transcript of Adrian Bayley police interview

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Transcript of Adrian Bayley police interview

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BAYLEY: You know it wasn't really my intention to hurt her, you know that? When we conversed, I swear to you man - I swear to you I'd - I'd - I'd - I just just spoke to her and she looked - she looked distraught. Does that make sense?

She didn't look happy.

And I spoke to - I spoke to her you know and said, look, I'll just - I'll - I'll help you, you know.

That's what I said to her and she was like fu ... anyway. It doesn't matter. She flipped me off and that made me angry, because I was actually trying to do a nice thing. You know that?

She looked distraught, you know. She looked like she was lost. She didn't - and I don't know man, you know. Always try to do the right thing some - you know, most of the time and I didn't take well to her response, you know. I just don't wanna go through it in detail. That - I can't.

I want to do the right thing, you know. I don't care. I'm - I'm going to go to jail for a long time... I hope they bring back the death penalty before I get sentenced.

DETECTIVE: So you said she fobbed you off and you got angry. Tell me what happened then?

BAYLEY: Oh I just got pissed off and I actually walked off and she followed. I actually walked in front of her and she followed. And it just got worse.

DETECTIVE: Tell me what happened.

BAYLEY: [Starts to cry... inaudible] like a big sissy man. I can't believe that I've done what I've done, do you understand that? I cannot believe that it - it went that way. I swear [starts to cry].

I was just walking ahead of her and we'd already interacted on Sydney Road and that's when she rang her brother. She was actually telling me about her father.

And it just ended in the alley. I can't remember, yeah, you know what I mean, 100 per cent, like how it ended up. We were just sort of - we were standing there. I don't know what to say man, you know what I mean?

There's no explanation and... there's no excuses for this. All right? For her family this week it must have been hell, you know what I mean?

I don't care just - just charge me man, all right. I'll - I'll - I'll show you where she - I'll try and show you where she is.

BAYLEY: Before - before that happened, you know, um, I raped her. I'm sorry, I just - I'm trying to ... all right be honest. And, um, from - from there - but, ah, from there it was [sighs] oh, from there that's where I went - where she is.

My life's over now, do you know what I mean? So this is - it's just about doing the right thing, you know.

I can't imagine how - how she felt, but I know how I felt. It's not nice, man, it's not nice.

And all I thought was what have I done? That's all I thought. That was the thought in my head, what have I done after I said sorry. I don't know what else to say, man, I don't know what else to say.

DETECTIVE: And what happened to her belongings?

BAYLEY: [Coughs]

DETECTIVE: Okay, Adrian, the time is now, ah, 1.50am and it's now Friday, the 28th of September. Can you tell me where we went?

BAYLEY: I took you - took youse to where Jill was buried.

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BAYLEY: You know it wasn't really my intention to hurt her, you know that? When we conversed, I swear to you man - I swear to you I'd - I'd - I'd - I just just spoke to her and she looked - she looked distraught. Does that make sense?

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Karen Ristevski's murder (Part 3) | A Current Affair Australia 2018

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Karen Ristevski's murder (Part 1) | A Current Affair Australia 2018

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Karen Ristevski's murder (Part 2) | A Current Affair Australia 2018

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The Court of Appeal has delivered its judgment in DPP v Borce Ristevski.

The Court of Appeal (Chief Justice Anne Ferguson, Justice Simon Whelan and Justice Phillip Priest) delivered its judgment in DPP v Borce Ristevski on Friday 6 December 2019.

This follows a hearing on 15 November 2019.

The appeal was an appeal against sentence filed by the Director of Public Prosecutions.

COURT OFAPPEAL SUMMARY (VIDEO)

A video of the summary of the Court's conclusions being read out by Chief Justice Ferguson will be made available at the link below.

6/12/19 - View video of summary of the Court of Appeal's conclusions

DOCUMENTS

The Court has made the following documents in relation to this matter available below:

a summary of the Court of Appeal's conclusions; and

the reasons of the Court of Appeal

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The Court of Appeal has delivered its judgment in DPP v Borce Ristevski. The Court of Appeal (Chief Justice Anne Ferguson, Justice Simon Whelan and Justice Phillip Priest) delivered its judgment in DPP v Borce Ristevski on Friday 6 December 2019. This follows a hearing on 15 November 2019.

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The string of lies told by wife killer Borce Ristevski have been made public for the first time in documents released by the Supreme Court of Victoria.

Ristevski, 55, sensationally pleaded guilty to the manslaughter of wife of 27 years, Karen, on Thursday last week.

He was initially charged with murder, but has now managed to avoid the charge partly because prosecutors could not establish exactly how the 47-year-old died.

Today Supreme Court documents chronicling Ristevski's multiple lies following his wife's disappearance in 2016 were released.

He made up three different scenarios over a series of police interviews as he tried to evade responsibility for taking Mrs Ristevski's life.

In the first scenario, he said he had argued with Mrs Ristevski about sale of their clothing store and she went upstairs to "cool off".

In the second set of circumstances put forward by Ristevski, he said his wife immediately left the house through the front door.

In the third scenario, Ristevski said she went out through the garage.

Using CCTV evidence and phone taps, prosecutors came to the conclusion that Ristevski killed his wife between 8.30am and 10.40am on June 29, 2016. He then placed her body in her car boot, drove her Mercedes-Benz to Mount Macedon and dumped her remains.

Phone records show that he never called any family or friends to ask about his missing wife.

But he did warn an associate not to talk to police.

"Make sure you don't say anything. Don't tell them anything I spoke to you about. Nothing at all," he told the associate.

As his daughter Sarah bravely stood by him, he pleaded with her not to trust the homicide detectives claiming, "They don't give a f--k."

Ristevski also asked another friend to buy him a new SIM card for his phone, well aware that he was the prime suspect.

When he was told by a reporter that Mrs Ristevski's body had been found in a bush grave at Mount Macedon on February 20, 2017, he replied "well, it's got nothing to do with me."

The murder case against Ristevski fell apart on the eve of his trial last week when the Judge ruled that without knowing Mrs Ristevski's cause of death.

Evidence of Ristevski's behaviour afterwards wasn't enough to prove murderous intent, allowing the 55 year old to plead guilty to manslaughter.

Justice Beale was also swayed by Ristevski's lawyers' argument; that he would have feared killing his wife would have damaged the relationship he had with their daughter, Sarah.

Ristevski will face a plea hearing next week.

Karen Ristevski last seen at her Melbourne home in Avondale Heights

Her mobile phone pings off a tower in the Macedon Ranges

A car similar to her black Mercedes SLK coupe spotted by CCTV cameras near Diggers Rest railway station

Husband Borce Ristevski and daughter Sarah make a tearful plea for information to help find their missing wife and mother

Police search grassland, waterways, creeks and farms

Karen Ristevski's body found at Mount Macedon Regional Park

Funeral service held with Borce Ristevski a pallbearer and daughter Sarah leading the procession

Police recreate the journey of Ms Ristevski on the day she went missing in a black Mercedes, identical to hers

Borce Ristevski charged with murder and faces court where a lawyer indicates a not-guilty plea and he is remanded in custody

Ristevski returns to court where it's revealed detectives tapped phone calls and planted listening devices as they investigated the alleged killing, compiling a 22,000-page evidence brief

Ristevski is granted state-funded legal aid as he fights the allegations

Ristevski's two-week committal hearing begins and later hears evidence from his daughter Sarah who said he was never "aggressive" towards her mum.

Ristevski ordered to stand trial in the Supreme Court charged with murdering his wife

A five-week trial for Ristevski is set for March 2019

A day before a jury is due to be empanelled for his murder trial, Borce Ristevski pleads guilty to manslaughter after prosecutors withdraw the murder charge.

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Wife killer Borce Ristevski's web of lies aired by court

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The string of lies told by wife killer Borce Ristevski have been made public for the first time in documents released by the Supreme Court of Victoria. Ristevski, 55, sensationally pleaded guilty to the manslaughter of wife of 27 years, Karen, on Thursday last week.

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In May 1996 St Kilda detectives sought legal advice before handing over nearly $450,000 to two businessmen who found it buried in plastic drums near the Balaclava Railway Station.

They had already discounted up to six claims on the money, including one believed to have come from Queensland.

The first of the drums, containing about $200,000, was unearthed on January 23 of that year. The second was found a week later.

After examining the bills for fingerprints, police destroyed most of the money, in new $100 and $50 notes, because the Reserve Bank had agreed to accept and replace the damaged cash.

In October 1995 a package containing $6000 was found on a light-rail tram between the city and St Kilda and handed in to police. When it was not claimed within three months, the finder was allowed to claim the lot.

But in April the year before, Silver Top taxi driver Ronald Roy was not so lucky when he claimed ownership of a heavy fur coat - with 320,000 zlotys in its pockets - abandoned by a passenger arriving in the Melbourne summer from the Polish winter.

The Polish cash was worth just $15 and no bank would change it because the Polish government had banned its movement in and out of the country.

The finder of any unclaimed money or goods has first option of keeping it after three months. If they do not want to keep it, the money goes to consolidated revenue - government coffers - and goods are sold at auction.

Police spokeswoman Mia Paterson said someone who found any sum of money was legally obliged to make ``every reasonable attempt'' to return it.

"To just keep it could attract a charge of theft-by-finding,'' Ms Paterson said.

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In May 1996 St Kilda detectives sought legal advice before handing over nearly $450,000 to two businessmen who found it buried in plastic drums near the Balaclava Railway Station. They had already discounted up to six claims on the money, including one believed to have come from Queensland.

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The Rainmaker (6/7) Movie CLIP - Rudy's Closing Argument (1997) HD

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In a hurry? Don't fool yourself, speed kills

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Yes Mum - MAFMAD Winner 2012 - Make a Film Make a Difference

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BarNet Jade - Find recent Australian legal decisions, judgments, case summaries for legal professionals (Judgments And Decisions Enhanced)

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Staying up to date with the latest decisions of Australian and International Courts and Tribunals and Australian legislation has never been easier. JADE takes online legal research to a whole new level.

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Connecting the Dots - TAC educational resource

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A Few Good Men  - You can't handle the truth Scene - HD 720p

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Drugs, Poisons and Controlled Substances Act 1981 (Vic)

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Drugs, Poisons and Controlled Substances Act 1981 (Vic)

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DRUGS, POISONS AND CONTROLLED SUBSTANCES ACT 1981

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TABLE OF PROVISIONS Long Title 1. Short title and commencement PART I--INTRODUCTORY AND TRANSITIONAL 2. Repeals and revocations 3. Savings 4. Definitions 4A. Act does not apply to certain processed products 5. Meaning of possession 6. Meaning of corresponding law 7. Act not to derogate from provisions of certain other Acts 8.

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His name is 'Jake'. At 15 years old, he was an ice dealer, a user and a crystal meth cook.

'Jake' is the new face of crystal meth, or ice, in Australia. It's the drug that's ravaged our major cities. But now it's destroying country towns one by one.

This week on Four Corners, reporter Caro Meldrum-Hanna travels through the regions of two states, riding with police and users, to tell the shocking story of towns and people in the grip of ice.

She pieces together a disturbing picture: major international drug cartels are working with locally based outlaw motorcycle gangs to push ice out of the cities. It's a massive illicit corporate enterprise; sophisticated and highly organised.

Their targets? Captive markets of bored teenagers in country towns, where there's a desperate lack of treatment facilities and under resourced or non-existent police.

Four Corners goes to one community of less than 4,000 people where up to one in ten people are using ice. Meldrum-Hanna meets teenagers who began using in their early teens, sits with them as they smoke ice and with others as they inject, and discovers how bikie gangs use other children to "cook" methamphetamine, destroying their health and leaving them with ruinous addiction.

In short, the program tells the story of a generation that is being condemned to a life of drug abuse, crime and ultimately early death. The most alarming element of this story is the age of the people involved, as one clinical nurse at the coalface in regional Australia explains:
"The demographic for ice is changing all the time. We're noticing the age actually dropping, there's been reports of 10 year olds presenting at the Emergency Department here."
Seventeen-year-old 'Ethan' is a prime example of the power and spread of ice, the reality of what's happening beyond city borders. He was injected by a local drug dealer when he was just a boy. He says it took just one night for him to get hooked. This sent his life into a downward spiral that saw 'Ethan' leave school, join a crystal meth pack of fellow young addicts hopping from town to town chasing ice, stealing from people night and day to feed their addiction.

Not even his family was safe.
"Mum locked the door on me and I remember thinking... if I get in there I will hurt her for money. I will get money out of her some, one way or another."
As each person's story unfolds it becomes disturbingly clear: there is almost nowhere for young addicts in regional Australia to go to get help. That leaves health workers in despair:
"We're going to talk about the utter devastation of small rural communities where we're going to have a lot of mental health issues, criminal activity. It's going to be a nightmare."
ICE RUSH, reported by Caro Meldrum-Hanna and presented by Kerry O'Brien, goes to air on Monday 20th October at 8.30pm on ABC. It is replayed on Tuesday 21st October at 11.00am and 11.35pm. It can also be seen on ABC News 24 on Saturday at 8.00pm, ABC iview or abc.net.au/4corners.

Transcript
Ice Rush, 20th October 2014
KERRY O'BRIEN, PRESENTER: In 2006 Four Corners showed 'The Ice Age' - a confronting and deeply unsettling look at how the drug known as ice or crystal meth was destroying the lives of hard-core inner city drug users.

The program generated a huge reaction but the only thing that's changed in eight years is that it is now far worse - frightening in fact.

Ice is now widespread in country towns and rural communities as well, right around the nation and it's incredibly destructive.

It's estimated that almost 350,000 Australians smoked, snorted or injected crystal methamphetamine in the past year.

It's often distributed by ruthless and manipulative motorcycle gangs who are now targeting bored teenagers in country towns where police are under resourced and there's a desperate lack of treatment facilities.

Caro Meldrum-Hanna followed a trail of destruction in regional Victoria and Tasmania for this shocking story of towns and people trapped in a vicious cycle.

(Footage of sign saying welcome to St Arnaud)

CARO MELDRUM-HANNA, REPORTER: The sun's out in the small country town of St Arnaud, north-west Victoria.

It's a beautiful day.

But 19-year-old Jake is spending it indoors, inside his bedroom.

(to Jake) And is this how you spend a lot of your days? Hanging out with mates?

JAKE, RECOVERING ICE ADDICT: Yeah pretty much.

CARO MELDRUM-HANNA: It's a small room with no natural light and no fresh air. The windows are covered.

Jake's friend is here too. We can't show you his face. He's about to get high.

Jake's friend is smoking ice - the crystallised super-charged speed, the purest form of methamphetamine.

It's remarkable to watch, because Jake himself is a recovering ice addict.

Jake, how is it sitting with your mate here who's smoking ice?

JAKE: Oh it's no different than sitting here having a cigarette really. It comes down...

CARO MELDRUM-HANNA: It's not tempting?

JAKE: Oh everything's tempting but it comes down to mind over matter a lot of the time.

CARO MELDRUM-HANNA: (to friend) Would you say that you're addicted?

FRIEND, ICE USER: Maybe, like a tiny bit, like if that's possible (laughs).

CARO MELDRUM-HANNA: Jake's friend says he suffers from depression. He smokes ice to make him feel good.

(to friend) So it makes you feel happier?

FRIEND: Yeah, yeah for sure.

CARO MELDRUM-HANNA: So how popular is it around here, you know?

FRIEND: Um, very (laughs).

CARO MELDRUM-HANNA: The town of St Arnaud is home to just 3,500 people. But we're told ice is rampant.

JAKE: High demand.

CARO MELDRUM-HANNA: High demand?

JAKE: Yep. Pretty much gold around here, a lot of people would see it as, and it's worth more than its weight in gold as well. Like, and that's an actual fact unfortunately.

CARO MELDRUM-HANNA: So how has crystal meth made it all the way out here? And how big is the problem in rural Australia?

JAKE: It's as common as weed. Which is ridiculous.

CARO MELDRUM-HANNA: So how has it got to this point?

JAKE: Well, there's a lot of money in it. Hell of a lot of money and a hell of a lot of dodgy c***s.

CARO MELDRUM-HANNA: Two hours' drive south is the regional hub of Ballarat, once a gold rush boomtown. Today it's grappling with a sudden influx of crystal meth.

Here, and right across regional Victoria, the age of ice users has plummeted, defying national trends.

DARREN CUTTS, WITHDRAWAL NURSE, TABOR HOUSE: The demographic for ice is changing all the time. We're noticing the age actually dropping. There's been reports of 10-year-olds presenting at the Emergency Department here in Ballarat.

(to new resident) Alright mate, let's head off and do a bag search.

CARO MELDRUM-HANNA: Just outside town is Tabor House - a youth residential withdrawal centre for 12 to 21-year-olds. Clinical nurse Darren Cutts is checking a new arrival for drugs.

DARREN CUTTS: So sorry about this mate, we don't want to go through anyone's stuff but it's part of the program.

NEW RESIDENT: Yeah.

DARREN CUTTS: Take a seat.

CARO MELDRUM-HANNA: A four-bed facility, Tabor House has a waiting list of up to two months. That's because, unbelievably, it's the only one of its kind for all of regional Victoria.

In the past 18 months, admissions for ice-affected young people have leapt 80 per cent.

DARREN CUTTS: The youngest client that we've actually seen here at Tabor at the moment for ice withdrawal is 14.

CARO MELDRUM-HANNA: Fourteen-years-old?

DARREN CUTTS: Yep. Ah for me it's the worst thing I've ever seen.

(Aaron feeding a horse)

AARON, RECOVERING ICE ADDICT: That a boy.

I had a harder trouble getting it in the city than I did out here.

CARO MELDRUM-HANNA: It's 19-year-old Aaron's last day at Tabor. He's been here for two weeks to get off ice.

Originally a city boy, Aaron began using when he was 15. His addiction has left him painfully thin and highly anxious.

AARON: It's dark, it's scary, it's dirty. You know, like personal hygiene falls to shit, and appetite is just gone, you don't eat, you don't sleep. Life's chaotic.

CARO MELDRUM-HANNA: What was your lowest point?

AARON: When I tried to hang myself in my mum's shed.

CARO MELDRUM-HANNA: Before Aaron leaves Tabor, he has one last thing to do. It's a symbolic act - a handprint to mark two weeks being clean.

AARON: I want to stay clean. But it's easier said than done.

CARO MELDRUM-HANNA: Aaron's handprint is one of hundreds spread across three walls. The lucky ones who managed to get in to Tabor House.

It's a confronting display, evidence of a problem out of control in regional Victoria.

DARREN CUTTS: Here in Ballarat we're only seeing the crest of the wave. We certainly haven't, you know, reached the peak, it's still increasing.

It's in every little town that these clients are presenting. They will tell you that the town is running amok on ice.

CARO MELDRUM-HANNA: Next to Aaron's handprint is the imprint of a set of knuckles belonging to a boy named Ethan. He's been to Tabor House twice in the past year.

DARREN CUTTS: He'd actually arrived from a psychiatric facility. His life completely and utterly fell apart, when Ethan found ice.

CARO MELDRUM-HANNA: Must've just taken your breath away. Watching your child...

PENNY, ETHAN'S MOTHER: This... destroy himself? Yeah, yeah, yeah. Yeah. It did.

CARO MELDRUM-HANNA: Penny and her son Ethan live an hour's drive north east of Ballarat in Castlemaine.

When we visited, bikies were in town.

(to Ethan) Did you rack up drug debts?

ETHAN: Yeah, yeah a few times.

CARO MELDRUM-HANNA: Who did you owe?

ETHAN: Um... well, I'd... I actually generally owe someone that owed bikies.

CARO MELDRUM-HANNA: Out here, it's called 'shard'.

An addict for over a year, Ethan says crystal meth turned him into a monster.

ETHAN: I just wanted to see blood. That's all I wanted. Because you know I wanted to kill someone almost - like I was ready to.

CARO MELDRUM-HANNA: Ethan says it took just one night on ice to get hooked. First he smoked it. The next morning, his friend - a local dealer - asked him to come to the park, to the public toilets.

ETHAN: And he pulled out two syringes, two sterile syringes. And at first I was like "Ooh that seems a bit, you know, a bit dodgy" but then after a while I looked, he put it in a spoon and started crushing it up and got a bit of a water in there and all I could think was "Yeah, fuck yeah, I don't care how it goes in me, I just want - I just want that".

DARREN CUTTS: So it, you know, it unleashes this massive amount of... of dopamine, it's the pleasure drug. So it causes this enormous rush within these young minds. They simply can't cope.

CARO MELDRUM-HANNA: This is the brain's usual level of dopamine, the neurotransmitter responsible for feeling pleasure and happiness.

Watch what happens when ice enters the equation. A massive spike in dopamine, bigger than any other drug. Over time, ice destroys the brain's ability to produce dopamine naturally.

It's a drug - and an addiction - like no other.

ETHAN: As soon as that needle went in my arm it was just, that was, I just couldn't, couldn't live without it. I felt like it was my... it was the way... it was my way of life you know.

CARO MELDRUM-HANNA: Ethan stopped going to school, disappearing for weeks on end. Hopping from town to town, chasing ice, crashing in meth houses often run by adults. Physically and mentally Ethan quickly fell apart.

Ethan would come home looking for money to buy more ice. He was violent and filled with rage.

ETHAN: Mum had locked the door on me and I remember thinking that, you know, if I get in there I will hurt her for money, kind of thing. I will get money out of her some... one way or another.

PENNY: And he just... he just... his mouth opened like a furnace and he looked like he could've lifted the house up, he could've just... his rage was so immense.

CARO MELDRUM-HANNA: Terrified, one night Penny called the police and recorded the sounds of her son being capsicum sprayed.

(Extract from recording)

ETHAN: (inaudible yelling) What you just gave me, water in the fucking eye's of course you're not giving me anymore. You fucking hurt me more you c***s, fucking hell (crying). I hate the fucking system (crying).

(End of extract)

CARO MELDRUM-HANNA: We played this recording to Ethan. It's the first time he's heard it.

ETHAN: Was that me?

CARO MELDRUM-HANNA: Do you remember that night?

ETHAN: No.

CARO MELDRUM-HANNA: Who was that person you were just listening to?

ETHAN: I got a bit of a shock just then. That was the bad side of me I guess. That was... I don't even know what that was.

PENNY: I was worried that Ethan had damaged his brain so much that he was a sociopath, he was going to potentially be somebody that was going to need incarceration for his life.

(Playing computer games)

PENNY: Was that you?

ETHAN: No.

PENNY: That was you.

ETHAN: It wasn't me.

PENNY: That's you passing me now.

ETHAN: Snap (laughs).

CARO MELDRUM-HANNA: This was Ethan's turning point. He went to rehab, and is now four months clean.

(Sound of Ethan laughing)

PENNY: Ahhh.

ETHAN: I beat you.

PENNY: Whatever.

ETHAN: Congratulations for losing

(Penny laughs and taps Ethan's arm)

CARO MELDRUM-HANNA: But staying away from ice is a daily battle. In his town, it's everywhere.

(Sound of electric guitar riff and drummer hitting drum sticks)

ETHAN: I could get onto ice right now. I couldn't get onto bud.

CARO MELDRUM-HANNA: Where would you go to get it?

ETHAN: I'd probably just go up the road, you know. It's just up the road and it's easy to get.

CARO MELDRUM-HANNA: You can walk up the road and buy ice?

ETHAN: I could walk up the road and get it, yep.

CARO MELDRUM-HANNA: In this small country town?

ETHAN: In this small country town.

PAUL ROSS, ACTING SUPERINTENDENT, VICTORIA POLICE WESTERN REGION: It is probably our biggest driver of crime, our biggest current driver of crime... ah, in some form.

CARO MELDRUM-HANNA: In Ballarat, police are struggling with a surge in ice-related crime. Robberies and theft, assault and family violence are all up.

And users are also dealing.

Equally situated from Victoria's two biggest centres, Melbourne and Geelong, ice is being trafficked into town with speed and ease. In cars, on trucks, aboard trains - leading to an explosion of local dealers.

(to Paul Ross) How often would you be busting a dealer then?

PAUL ROSS: It's a regular occurrence, two to three times a week.

CARO MELDRUM-HANNA: Two to three times a week?

PAUL ROSS: Ah at various levels. Some, some bigger dealers than others, obviously.

CARO MELDRUM-HANNA: This is what police are regularly finding on local dealers. This bag of ice contains around 20 points or hits with a street value of around $2,000.

Next to it. What looks like a mobile phone. Case off, it doubles as a set of scales.

Four Corners understands they're distributing on behalf of outlaw motorcycle gangs, moving ice from city to country. The Vikings, the Finks and the Bandidos have all established chapters in Ballarat.

(to Paul Ross) Is it being cooked here?

PAUL ROSS: Ah some of it will be getting cooked here or somewhere else, um but the easy transportation of it um just makes it easier to bring it in from elsewhere. Um when really, think about it, if you've got an easy supply chain, why would you risk trying to manufacture it locally?

CARO MELDRUM-HANNA: Outlaw motorcycle gangs aren't just major players in the distribution and supply of ice in north-west Victoria. Four Corners has discovered they're also cooking it.

(to Jake) The motorcycle gang you were working for, how many cooks did they have in the area?

JAKE: I wouldn't be able to say. I knew of a fair few but I wouldn't be able to say.

CARO MELDRUM-HANNA: You're looking at a former dealer and local crystal meth cook.

Jake's story is like no other - where poverty, addiction and organised crime intersect. A lonely child in a tiny country town, preyed on by members of an outlaw motorcycle gang.

JAKE: Pretty much like training an attack dog. If you get them young, the sky's the limit.

CARO MELDRUM-HANNA: Jake's story begins when he was 11-years-old in the town of St Arnaud. Abandoned by his father and older brothers, left alone at home to pay the mortgage and care for his mentally ill mother.

JAKE: For a while I didn't really know what to do but when it really came down to it I knew I had to make some form of income. And you can't really get a job at that age.

CARO MELDRUM-HANNA: Jake was approached by an older man with a job opportunity. For Jake's protection we cannot name him or tell you which motorcycle gang he belongs to.

JAKE: Someone offered me to move certain amounts of marijuana for them, started off simple like that.

CARO MELDRUM-HANNA: And what happened next?

JAKE: When I hit you know mid-13, is when it all started to develop a lot more because I had a fairly big clientele for my age.

CARO MELDRUM-HANNA: Jake was dealing drugs to small towns around the clock, barely sleeping. When he was 13, Jake's new-found family, a brotherhood of men, gave him a present.

JAKE: I was given a sweet puff as a present. As a "present" they call it, isn't really a present in the end (laughs). More of a burden.

CARO MELDRUM-HANNA: A sweet puff?

JAKE: Sweet puff is just a crack pipe. It's the most common brand.

I didn't have much explained to me about the drug or anything to do with it in a sense. It just was around like everything else was. I had constant access to pretty much whatever I wanted.

CARO MELDRUM-HANNA: But nothing comes for free. Over the next year, Jake used more and more. He was also being taught the tricks of the trade.

JAKE: Drug testing kit.

Getting taught, you know different methods, different ingredients, different parts.

Profit margins - especially. The difference between buying it and selling it, and making it and selling it.

CARO MELDRUM-HANNA: So you were taught how to make crystal meth?

JAKE: Unfortunately.

CARO MELDRUM-HANNA: Jake was now locked into a business arrangement.

JAKE: At the time it seemed like the best decision I ever made. It was like winning the lotto or pretty much getting a license to print money.

CARO MELDRUM-HANNA: So when did you start cooking alone? When were you trusted?

JAKE: About the age of 15, mid-15.

CARO MELDRUM-HANNA: Jake says he'd be picked up from home by members of the syndicate, driven to a remote location, and left alone.

He says the group constantly changed labs, erecting 20 by 40 sheds, dismantling and setting up elsewhere, in shipping containers, old farm houses, to keep ahead of the police.

He wouldn't give us specific addresses.

(to Jake) How long would you cook for per session when they'd drop you off?

JAKE: It varied over times but long periods could be even up to four days.

CARO MELDRUM-HANNA: Four days straight?

JAKE: Mmm.

CARO MELDRUM-HANNA: Did you sleep?

JAKE: Um no.

CARO MELDRUM-HANNA: Jake says he was left with as much ice as he could possibly smoke.

JAKE: You'd OD (overdose) before you got anywhere near through any of it.

CARO MELDRUM-HANNA: Why do you think they left you with so much?

JAKE: Oh because at the time you think they're being nice. Realistically they want you to stay awake and alert so you can get the job done, and secondly because they're making a lot more out of it than you think or than what you're being told.

CARO MELDRUM-HANNA: At his most productive, Jake says he was cooking an ounce a day. That's 28 grams or 280 points, with a street value of up to $28,000.

At the end of a four or five day cooking stint, he'd be picked up and taken out to party or, pictured here, taken home to try and sleep.

All up the cycle continued for four years.

(to Jake) How did you get out of this?

JAKE: Everything's got its price. Um...

CARO MELDRUM-HANNA: You can't tell me what that way out was?

JAKE: I don't... yeah I don't think it'd portray me as a very... or even human to really talk about it. It's the thing I'm least proud of in my life, but something which should never be asked of anybody.

CARO MELDRUM-HANNA: No one from Jake's family would speak up for him on camera.

But Darren Cutts did. He's cared for Jake through his four stints at Tabor House.

DARREN CUTTS: Jake has been scared for a long, long time. You can see that in his eyes.

CARO MELDRUM-HANNA: You think it's brave though what he's done?

DARREN CUTTS: Absolutely, absolutely. Yep. One of the bravest young men I've ever met.

JAKE: There's not much what can be done to me what hasn't already been done so... there's a point when fear leaves and you just want to go on with your life.

CARO MELDRUM-HANNA: Jake says he was one of many young cooks being used by bikie gangs.

He's also been charged with multiple assaults. If convicted, he could be facing two to four years jail.

JAKE: Here's several court notices. Mumph.

CARO MELDRUM-HANNA: But local police - despite their efforts - never found the stashes of ice he once had at home.

(to Jake) Did you keep large quantities of ice here?

JAKE: Ah I did in the past, but they're not very smart. I could do their job better than they do. The ones up here are useless.

CARO MELDRUM-HANNA: Are you confident that your counterparts in country areas are able to deal with this?

STEPHEN FONTANA, ASST COMMISSIONER, VICTORIA POLICE CRIME COMMAND: It's difficult. Some are better resourced than others. You know, because we've got a lot of competing priorities out in you know just general policing, so they'll put their resources where the greatest harm is being caused.

CARO MELDRUM-HANNA: In Melbourne city the effects of crystal meth are playing out on the streets.

(Extract from bus camera)

ICE USER: (screaming) Drive the bus!

CARO MELDRUM-HANNA: Ice users are highly unpredictable and often violent - one captured here assaulting a bus driver.

BUS DRIVER: Get off.

ICE USER: (hitting driver) Just drive the bus mate.

CARO MELDRUM-HANNA: Purity is high and crime is up.

ICE USER: (screaming) Drive the fucking bus!

(End of extract)

CARO MELDRUM-HANNA: Victoria police are on track to bust a record number of meth labs this year, with 120 already discovered and shut down across the state.

Labs are becoming increasingly mobile. These photos show crystal meth being cooked in the backs of trucks, transported in suitcases.

(to Stephen Fontana) What does that say to you, that you are eclipsing your records every year in the, in your number of lab busts?

STEPHEN FONTANA: We've got a problem. We've got a big problem. This is the worse substance we've seen - by far.

CARO MELDRUM-HANNA: According to police intelligence, several major international cartels have shifted manufacturing operations to Australia, with the Bandidos, Rebels, Finks or Mongols, Comancheros and the Hells Angels all involved in distribution.

Some are cutting ice with heroin to guarantee mental and physical addiction. It's a massive illicit corporate enterprise.

(to Stephen Fontana) Why is Australia such a lucrative market for ice producers?

STEPHEN FONTANA: Because we... we're like a wealthy count... ah, we are a wealthy country and we pay a lot more for ice.

So you know if you're running an organisation and particularly an organised crime syndicate, you're going to come to a place where you're going to get best bang for buck. And unfortunately Australia is one of those places.

CARO MELDRUM-HANNA: And it's leaving the mainland. Bound for the island state, the final frontier.

It's six am in Devonport, north-west Tasmania. The daily ferry from Melbourne is pulling in, carrying passengers and cargo.

Four Corners understands The Spirit is increasingly being used by outlaw motorcycle gangs the Rebels and the Outlaws to ship ice from state to state.

Across town at Devonport police, the drug squad is preparing to raid a known meth house.

STEVE KEISELIS, SERGEANT: Essentially guys, information and intelligence has been received that suggests methamphetamine and amphetamine is being sold, distributed, used from this residence.

CARO MELDRUM-HANNA: Amphetamine related drug offences have doubled in north-west Tasmania in the past year, and seizures are up 25 per cent.

(Extract from raid)

POLICE OFFICER: Open the door!

POLICE OFFICER 2: Stay out here.

(Sound of police using battering ram to break open door)

POLICE OFFICER 2: Watch out! Watch out mate, lets' run through the other side.

CARO MELDRUM-HANNA: Inside, police quickly find what they're looking for.

STEVE KEISELIS: Yeah righto, that was in here?

POLICE OFFICER 3: Yeah I was just sitting in that chair and thought I'd look in that box.

STEVE KEISELIS: Yep.

POLICE OFFICER 3: And I just found it, so first place I looked.

STEVE KEISELIS: Right.

(to Robert Gunton) That's a fairly sizeable quantity of ice.

CARO MELDRUM-HANNA: Lab tests pending, it's the second time in as many weeks the occupants of this neat and tidy rental home have been busted for ice.

(to Robert Gunton) More of these popping up around north-west Tasmania?

ROBERT GUNTON, DETECTIVE INSPECTOR: We certainly say... you know we started seeing methamphetamine about two years ago um and we're certainly seizing more of it.

CARO MELDRUM-HANNA: The spread of ice hasn't stopped in Devonport. It's crept through towns dotted along the coastline into the city of Burnie.

A 15 minute drive away is Serenity House, a two week time out facility where addicts come to withdraw before going to rehab.

JANETTE JENSEN: At the moment we've got three people who are recovering from ice use. Welcome to Serenity House.

CARO MELDRUM-HANNA: There are seven beds at Serenity House. Yet only two of them are funded by the government and only for alcohol.

JANETTE JENSEN: And here, these are our two sober... place of safety sober up beds.

CARO MELDRUM-HANNA: Mmm.

JANETTE JENSEN: In here we take people that the police send, a place of safety and this is our funded - these two beds are funded, but the five beds upstairs are not.

CARO MELDRUM-HANNA: Yeah these are empty. But you're funded to fill these?

JANETTE JENSEN: Yes.

CARO MELDRUM-HANNA: It's a damning indictment for Tasmania, a state in the grip of a sudden ice scourge.

In addition to being the only one of its kind for the whole state, Serenity House is also desperately under-funded.

JANETTE JENSEN: We are really under-resourced, we are really under-resourced. I can get four phone calls in a day and have to knock people back. I am known for putting a sixth person on the sofa upstairs for a couple of days you know while we get an empty bed. I'd do that rather than knock someone back who was in real crisis.

CARO MELDRUM-HANNA: Bradley, a poly drug user and a recovering alcoholic, has been to rehab four times for crystal meth. He says he was also a dealer.

BRADLEY: It just ruins your life, it ruined my life.

CARO MELDRUM-HANNA: Bradley is 40-years-old. He's lost all but three of his upper teeth.

CARO MELDRUM-HANNA: How'd you lose them?

BRADLEY: Just drugs. Ended up pulling them all out myself. Like some people pick their hands, they've got insects in there, well I had a thing about pulling my teeth out and I only have three left.

CARO MELDRUM-HANNA: How did you pull them out?

BRADLEY: With a pair of pliers (laughs).

CARO MELDRUM-HANNA: You're just sitting at home and you ripped your teeth out of your head?

BRADLEY: Yeah with a pair of pliers. That's what... that's what ice can do to you. I've just... yeah.

CARO MELDRUM-HANNA: At 10 am, Janette takes the residents of Serenity House to group therapy at The Bridge in Burnie - a drug and alcohol treatment program.

It's where we meet Kym.

KYM: With me I have a... like a good Kym and a bad Kym (laughs) sitting on either shoulder and they have these fights. And it goes on all day! It's weird.

JANETTE JENSEN: What I've seen ice do to her brings me to tears. Brings me to tears to see her.

KYM: This drug is addictive. Very, very addictive. I don't care what anyone says. And people reckon you can't hang out for it. Oh yes you can, believe me.

CARO MELDRUM-HANNA: Right now are you hanging out for it?

KYM: I'm starting to, yeah. Starting to get a bit agitated.

CARO MELDRUM-HANNA: Kym's an injector. We meet at her housing commission home, where she lives alone. Her eldest daughter Aloysia is also here.

ALOYSIA: Take your cuppa tea for starters.

KYM: Ah yeah, thank you!

CARO MELDRUM-HANNA: It's 10am. And Kym is getting ready for the day.

KYM: After a certain amount of days you start picking at your skin and it starts off like this but then it ends up like the whole side of your face peeling away.

CARO MELDRUM-HANNA: Kym's 55-years-old. Her skin is starting to break out. She's been using meth for three days straight.

She's trying to put her earrings on.

KYM: Ah, good on ya. It's the worst thing getting the shakes and I can't do anything (laughs). I don't know what effect this is going to have on my family but I don't care really. I'm trying to help younger people. Hey?

CARO MELDRUM-HANNA: Kym wants to show us the devastating effects of long-term meth use. She's been using for six years, up to a gram a day.

Kym is shaking and twitching uncontrollably.

Meth targets the central nervous system.

CARO MELDRUM-HANNA: Why are you putting a straw in your tea, Kym?

KYM: Because I can't drink it without spilling it.

CARO MELDRUM-HANNA: You're shaking too much?

KYM: Yeah.

CARO MELDRUM-HANNA: Why are you shaking so much?

KYM: It's because of the gear. It's because of the gear. Mmm. Much better (laughs).

CARO MELDRUM-HANNA: Last night she was hallucinating, talking to people that weren't there. She woke up covered in her own vomit.

CARO MELDRUM-HANNA: Did that scare you?

KYM: No. I know I've got brain damage. If I hadn't known I had brain damage it would scare me. But now I know what's wrong and it doesn't scare me. It's always in the knowing, isn't it?

CARO MELDRUM-HANNA: Kym's a recovered heroin and morphine addict and a recovered alcoholic. The longest stint she's ever been totally clean is 18 months.

Kym shows us her arms scarred by years of self harm, track marks, and ice sores.

KYM: And that's where I've been picking at myself.

CARO MELDRUM-HANNA: Why are you picking at yourself?

KYM: Because I think there is things there. Like pimples or blackheads or something.

CARO MELDRUM-HANNA: Is there?

KYM: No (laughs) there's not. It's just what speed and methamphetamine do to you. Like talking to people that aren't there when you're coming off, you know.

CARO MELDRUM-HANNA: As the afternoon wears on, Kym gets more and more agitated.

KYM: No one tells me what to fucking do.

ALOYSIA: (inaudible) No, I'll give you a little bit. Just don't want you wasting it.

KYM: I'm not gonna!

CARO MELDRUM-HANNA: She texts her dealer who responds almost immediately.

KYM: Fuck! Two seconds! Two seconds oh-ho! All right I'll be back in a minute. See youse!

ALOYSIA: See ya mamma.

CARO MELDRUM-HANNA: Kym won't let us meet her dealer. She returns minutes later.

KYM: Because I owed heaps of money. And I said "Oh Aren't I a good girl? I cleared my debt on Wednesday!"

He said, "You fuckin idiot, today's Wednesday!" (laughter) Oh no, I'm losing me mind.

CARO MELDRUM-HANNA: Kym's shaking too much to mix it for herself.

KYM: Aloysia.

CARO MELDRUM-HANNA: She asks her daughter to do it for her.

Today it looks like she's scored meth a cut down version of ice.

KYM: Oh jeez smells like petrol.

CARO MELDRUM-HANNA: She puts her glasses on. And inserts the needle in her arm.

KYM: Fuckin hell. Mmm (begins to get angry)

CARO MELDRUM-HANNA: She can't find a vein. So Kym tries her hand.

KYM: Stings a bit. Fucking hell. I can taste it. Yeah, weird. Phew. Just give me a minute. My hearing has gone loud. I can hear... yeah everything's loud.

CARO MELDRUM-HANNA: Kym will now spend the rest of the day at home. A calmness has come over her. She's also stopped shaking.

(to Kym) How long ago was that photo taken of you there?

KYM: Right. I've forgotten (laughs) 16... (begins to count on fingers), 17, 18, 19, 20, 21, 22, 23, 24, 25 - nine years ago.

CARO MELDRUM-HANNA: Meth makes the time go quickly. It also speeds up the ageing process.

(to Kym) Do you still have all your teeth?

KYM: No. They're my teeth, the ugly looking ones. They're false.

CARO MELDRUM-HANNA: High on meth, Kym used to picked at her teeth and gums with a pin.

(Kym removes dentures)

Infected, they all had to be removed.

KYM: (Laughs) Ice does this. Some... well yes, ice does this. Sometimes it doesn't give you the get up and go in your body, but it gives you the get up and go in your brain. So you'll sit there because you don't feel energetic but your brain is going round, round, round, round, round. So you do all this weird shit like pick your teeth, pick your face. Pick holes in your arms, you know.

CARO MELDRUM-HANNA: Kym has had four daughters to four different men, and drug abuse has been passed down to some in the next generation.

(to Aloysia) Have you ever used with your mum?

ALOYSIA: Yeah I have. Yep. I have. At least it's not like some random off the street.

KYM: That's what I always told her. At least you're safe with me.

ALOYSIA: Exactly. And I know if anything happens to me she's there, and vice-a versa.

CARO MELDRUM-HANNA: Kym's eldest daughter Aloysia is 37-years-old. Mother to three sons, she says she's stopped using.

She's 13 weeks pregnant.

But drugs are all around her. Her ex-partner and her son have repeatedly torn through her house in meth rages.

ALOYSIA: This is my hallway of destruction.

CARO MELDRUM-HANNA: Okay.

ALOYSIA: That one and that one, my ex-partner coming down off Ritalin.

My son, who I think was on ice. That. That - in one kick.

CARO MELDRUM-HANNA: It's gone right through the wall into your room.

ALOYSIA: Yeah, yep.

CARO MELDRUM-HANNA: It's a lot of violence and chaos to live in.

ALOYSIA: It is, it's awful. Yep.

CARO MELDRUM-HANNA: Do you find that a lot of people in your world, in your life in this town are using ice and speed?

ALOYSIA: Yeah it's everywhere you go. Everywhere. Everywhere, it's crazy.

CARO MELDRUM-HANNA: So Kym we're looking at three generations?

KYM: Mmm. Sad, isn't it?

CARO MELDRUM-HANNA: It's something Kym is deeply ashamed of. But she has suffered herself - both sexual and physical abuse since childhood.

KYM: I don't like meself very much (begins to get upset). I haven't been a very good role model for me kids (crying). It seems like everything I touch, I muck up. But I'm going to beat this thing if it kills me.

CARO MELDRUM-HANNA: Kym reads us a text message from one of her daughters. She wants Kym to go back to rehab and get clean for good.

KYM: "I really do understand and it's scary and it's hard to ask for help again. As I said, I'm not judging you (crying). My love for you will never waver."

CARO MELDRUM-HANNA: Kym's body has begun to break down. If she doesn't stop using, she won't live to see her beloved grandchildren grow up.

And she has a message for young people.

KYM: I would say get help now before it gets its hooks into you. Otherwise you are damned. You will end up with nothing. And you will end up lonely, and you will end up with brain damage.

CARO MELDRUM-HANNA: But getting help in regional Australia is easier said than done. There's a desperate lack of treatment facilities. It's a disaster waiting to happen. And there's no time to lose.

(to Darren Cutts) If the treatment of ice in young people is... if nothing is done, if it remains the same as it is now, what do you foresee in five years? Tell us the ugly, real truth.

DARREN CUTTS: We're... we're gonna talk about just utter devastation of small rural communities where we're gonna to have a lot of mental health issues, a lot of criminal activity et cetera, et cetera. It's going to be a nightmare.

(Footage from St Vincent's Hospital)

GORDIAN FULDE, PROFESSOR, DIRECTOR, EMERGENCY DEPT ST VINCENT'S HOSPITAL: Come through. Just on the chairs here come and have... have, have a seat there for a minute.

CARO MELDRUM-HANNA: This is what governments can expect if nothing is done to stop the ice scourge.

GORDIAN FULDE: You've got all these injection marks right? You're in a really bad way buddy, I think you're really sick from infection.

PATIENT: Yeah me legs are bad mate, that's what I'm trying to say (inaudible).

CARO MELDRUM-HANNA: It's 11.30pm in Darlinghurst, Sydney, Australia's original ice city. The night of the lunar eclipse.

Inside the emergency department at St Vincent's Hospital, Professor Gordian Fulde is tending to a 35-year-old man in acute distress. He's an 'end of the road' ice addict.

GORDIAN FULDE: Alright, you got the itches, the bugs? Got the bugs? Show me your tongue buddy. It's a bit dry. No wonder you want some water.

PATIENT: (inaudible).

GORDIAN FULDE: We're looking after you. I'm the boss here, we're going to look after you.

CARO MELDRUM-HANNA: We can't show you the man's face. He's covered in sores, his body is septic. His brain is permanently damaged and he's losing control of his muscle movements.

He's close to death.

GORDIAN FULDE: How long you been in trouble with the ice?

PATIENT: Oh well, I started off with um speed years ago when I was like, about, I don't know, 15 or something.

GORDIAN FULDE: Yeah. All right. Okay.

Excuse me, I'll put the bed up a little bit for you. There you go, that will get you more comfortable. Alright I'll get you a drink.

CARO MELDRUM-HANNA: He was a 15-year-old boy when he began using - when he began to leave this world.

Twenty years on, it's likely he'll never be coming back.

GORDIAN FULDE: It is such a tragic event. And I reckon, I reckon he's a nice guy.

Under that he's... there's... he's not nasty, not horrible, it's just...

CARO MELDRUM-HANNA: He's not violent?

GORDIAN FULDE: No. He's not... he's not... he's not what you... if it was a dark room you'd say like this is an average nice guy you know. But he's fallen prey to the demons.

KERRY O'BRIEN: Fallen prey to the demons.

What you've seen tonight is the tiny tip of a very large iceberg. The question is what are government's going to do about it.

Just after Four Corners visited Tasmania, the Health Minister there announced a review into drug rehabilitation services in the north-west of the state - what about the rest of the country?

Over the next half hour if you're on east coast daylight saving time Four Corners will run an online forum on the ABC News Facebook page if you'd like to participate or just follow the discussion.

Background Information
NATIONAL SUPPORT SERVICES
Lifeline | 13 11 14

ADIN | Australian Drug Information Network | Alcohol and drug search directory | www.adin.com.au

CounsellingOnline | 24 hours a day, 7 days a week | Free alcohol and drug counselling online | www.counsellingonline.org.au

Family Drug Support | Support network for family members | 24 hour | 1300 368 186 | fds.org.au

Family Drug Help | 1300 660 068 | 24 hours a day, 7 days a week

Drugs Meter | Anonymous, personalised feedback on your drug use | www.drugsmeter.com

Drug Info | Facts and resources about alcohol and drugs from the Australian Drug Foundation | 1300 85 85 84 | www.druginfo.adf.org.au
STATEWIDE SUPPORT LISTED BELOW METHAMPHETAMINE RESEARCH AND INFORMATION
Inquiry into the supply and use of methamphetamines, particularly 'ice' in Victoria | The Law Reform, Drugs and Crime Prevention Committee, Parliament of Victoria | 2014

Tasmanian Drug Trends 2012: Findings from the Illicit Drug Reporting System (IDRS) | One hundred and six people who regularly injected illicit drugs (PWID) were interviewed | NDARC | 2012

Illicit Drug Data Report 2012-13 | Australian Crime Commission | A statistical overview of illicit drug arrests and seizures as well as profiling the current situation, national impact and the emerging trends and threats of illicit drugs in Australia.

Drug driving in Australia | 166 people have died in 146 drug driving fatal crashes in the four year period from 2010 to 2013 | Centre for Road Safety, August 2014

What difference does treatment make? | Developing a qualitative measure of young people's progress in residential rehabilitation: final report | National Drug Research Institute | 2014

Ecstasy and Related Drugs Reporting System (EDRS) National Report | Monitors the price, purity and availability of 'ecstasy' and other drugs such as methamphetamine. It also examines trends in the use and harms of these drugs | NDARC | 2013

Ice Fact Sheet | Reach Out.com

Trends in amphetamine-related harms in Victoria | Medical Journal of Australia | Only available to subscribers, artice about the report in The Guardian

Methamphetamine Use and Violent Behavior: User Perceptions and Predictors | Journal of Drug Use | 2013

Effects of Length of Abstinence on Decision-Making and Craving in Methamphetamine Abusers | Journal Plosone | 2013

Contrasting Trajectories of Heroin, Cocaine, and Methamphetamine Use | Journal of Addictive Diseases | 2008

Cardiotoxicity associated with methamphetamine use and signs of cardiovascular pathology among methamphetamine users | NDARC | 2005

Patterns of Use and Harms Associated with specific populations of methamphetamine users in Australia | Exploratory Research | Blue Moon research | 2008

National Drugs Strategy Household Surveys | While there was no significant increase in meth/amphetamine use in 2013, the use of ice (or crystal methamphetamine) more than doubled | AIHW | 2013

Treatment approaches for users of methamphetamine | A practical guide for frontline workers | Turning Point Alcohol and Drug Centre | 2008

Amphetamine-type stimulants: speed and ice | Fact File | ABC Health | 2013

Speed and Ice | Factsheet | NSW Health

Amphetamine-type stimulants | Management of Substance Abuse | World Health Organisation
ORGANISATION LINKS
Australian National Council on Drugs (ANCD) | the principal advisory body to Government on drug policy and plays a critical role in ensuring the voice of the community is heard in relation to drug related policies and strategies

Australian Drug Foundation | One of Australia's leading bodies committed to preventing alcohol and other drug problems in communities around the nation

Australian Drug Information Network | Australia's leading alcohol and drug search directory

DrugInfo Clearinghouse | Facts and sources about alcohol and drugs

National Drug Strategy | Aimed at improving health, social and economic outcomes for Australians by preventing the uptake of harmful drug use and reducing the harmful effects of licit and illicit drugs in our society

National Drug Law Enforcement Research Fund | Promotes quality evidence-based practice in drug law enforcement to prevent and reduce the harmful effects of licit and illicit drug use in Australian society

National Drug Research Institute (NDRI) | Curtin Universtiy | Conducts and disseminates high quality research that contributes to the primary prevention of harmful drug use and the reduction of drug related harm in Australia

National Drug and Alcohol Research Centre (NDARC) | UNSW | Conducts and disseminates high quality research and related activities that increases the effectiveness of treatment and other intervention responses to alcohol and other drug related harm

Queensland Alcohol and Drug Research and Education Centre (QADREC) | UQ

Victorian Alcohol and Drug Association (VAADA) | The peak body representing Alcohol and Other Drug (AOD) services in Victoria
MEDIA
Crystal meth: Former drug lab cook recruited at age 11 as outlaw motorbike gangs push drugs in rural towns | ABC News | 20 October, 2014

Drug report: Use of crystal methamphetamine or 'ice' rising rapidly among intravenous drug users | ABC News | 20 October, 2014

Schizophrenic love | The love and heartache that you feel when your daughter is going through her first Schizophrenic episode because of taking meth amphetamines! | ABC Open | 20 October, 2014

Circular Head focuses on ice with public forum | Circular Head residents will continue fighting ice use in the area with a public forum on October 31 | The Advocate | 18 September, 2014

'Mum, I've been taking ice': toll of a new drug menace | Ice, also known as crystal meth, is a new menace in regional areas | Illawarra Mercury | 16 October, 2014

Research questions the scale of the ice drug problem | A new study into the use of the drug ice reveals that the problem is not at epidemic proportions - but experts are concerned about the growing purity of the drug | Radio National Breakfast | 15 October, 2014

Rates of hospitalisation due to ice or crystal meth double in 7 years | AM | 14 October, 2014

ADHD treatment trialled in bid to help ice addicts kick deadly habit | A drug used to treat inattentive and impulsive children could be the key to weaning addicts off the deadly drug ice, researchers say | ABC News | 14 October, 2014

Kids as young as 11 addicts in towns gripped by drug ice | SBS News | 26 September, 2014

Breaking Bad 'coming to life' as Victoria battles ice, MP says as parliamentary committee releases drug report | ABC News | 3 September, 2014

Ice report finds more resources needed to tackle 'disturbing' new online drug markets | ABC News | 3 Septmeber, 2014

NW rehab review a 'high priority' | A Review into drug rehabilitation services on the North-West Coast will provide answers in "weeks rather than months", said Health Minister Michael Ferguson | The Advocate | 2 September, 2014

One family's story - secret drug addiction | The Age | 30 August, 2014

Labor promises 25-year jail terms for ice offences | Daniel Andrews says Labor will crack down on crystal meth crime, with new offences such as dealing ice to schoolchildren carrying up to 25 years in prison | The Age | 27 August, 2014

Ice epidemic | Ice or crystal methamphetamine can make users feel invincible but the downside is addiction, violence and psychosis | Life Matters | 21 August, 2014

No known treatment for ice addiction, inquiry told | Australia urgently needs to step up research into treatments for ice addiction, health and drug experts say | 7 July, 2014

Children as young as 10 using ice in Ballarat | The Courier | 27 June, 2014

Ice age: the rise of crystal meth in Australia | The use of crystal meth among Australians continues to increase and remains at a high level, according to a new report | The Conversation | 2 May, 2014

Police make plea to public in war on state's No.1 problem drug, meth | Use of Tasmania's No. 1 problem drug, methamphetamine, continues to rise as police act to stamp out its importation and shut down local labs | Mercury | 27 April, 2014

Rising drug use will result in increased dental problems including meth mouth, experts say | 31 March, 2014

Amphetamine addiction overtakes alcohol and heroin | AM | 23 December, 2013
RELEVANT FOUR CORNERS PROGRAMS
The Ice Age | Four Corners goes to the heart of a destructive new epidemic. Reporter Matthew Carney takes his camera into a netherworld inhabited by hardcore "ice" addicts who live for their next hit | 20 March, 2006
STATEWIDE SUPPORT SERVICES VICTORIA
Tabor House | Youth Withdrawal Unit | Uniting Care, Ballarat | www.unitingcareballarat.com.au

YoDAA - Youth Drugs and Alcohol Advice | 1800 458 685 | yodaa.org.au

SuicideLine | Free, anonymous support 24/7 | 1300 651 251 | suicideline.org.au

Family Drug Help - Family Drug Helpline | 1300 660 068 | sharc.org.au/program/family-drug-help
TASMANIA
Serenity House | Drug and alcohol time out service | Sulphur Creek | (03) 6435 4654 | www.citymission.org.au

Rural Health Tasmania Inc | Community centre funded by the Commonwealth Department of Health and Ageing | Smithton | (03) 6452 1266 | www.ruralhealthtas.com.au

Alcohol and Drug Information Service | 1800 811 994 | A 24-hour telephone information and counselling line | 1800 811 994
QUEENSLAND
Queensland Health | Alcohol and Drug Information Service | Confidential telephone service | 1800 177 833

Use QFinder to find drug and alcohol health services | access.health.qld.gov.au/QFinder

Queensland Network of Alcohol and Other Drug Agencies | Directory of Queensland services | www.qnada.org.au
NSW
Alcohol and Other Drugs Information Service | A confidential, anonymous information, advice and referral service | (02) 9361 8000 /1800 422 599

WHOS | We Help Ourselves | Resident Rehabilitation Service | www.whos.com.au

Odyssey House | Resident Rehabilitation Service | 02 9281 5144 | www.odysseyhouse.com.au
ACT
ACT Health | Directory of Alcohol and other Drug Services | health.act.gov.au

Alcohol and Other Drugs Helpline | Counselling and other treatment service | (02) 6207 9977
SOUTH AUSTRALIA
SA Health, Drug and Alcohol Services | Services and locations directory | www.sahealth.sa.gov.au

Telephone counselling and information | 8.30am and 10.00pm every day | 1300 13 1340

WESTERN AUSTRALIA

Drug and Alcohol Office | Alcohol and Drug Information Service | 24 hour helplines | (08) 9442 5000/ 1800 198 024 | www.dao.health.wa.gov.au

Drug Aware | Online help and information | drugaware.com.au

Drug and Alcohol Service Directory | www.dao.health.wa.gov.au
NORTHERN TERRITORY
EASA- Alcohol and other drugs | Counselling services for people affected by alcohol and other drugs | 1800 193 123 | www.easa.org.au

Wurli Wurlinjang Health Service | Alcohol and other drugs counselling services, education and support | (08) 8972 9123 | www.wurli.org.au

Headspace Central Australia | National Youth and Mental Health Foundation | www.headspace.org.au

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His name is 'Jake'. At 15 years old, he was an ice dealer, a user and a crystal meth cook. 'Jake' is the new face of crystal meth, or ice, in Australia. It's the drug that's ravaged our major cities. But now it's destroying country towns one by one.

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Ice Towns: Crystal Meth Addiction in Regional Victoria

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Ice Towns: Crystal Meth Addiction in Regional Victoria

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Ice Towns: Crystal Meth Addiction in Regional Victoria  | Investigation | SBS The Feed

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How to get away with murder - court scene

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How to Get Away With Murder 4x13 Annalise's Speech to the Supreme Court Scene

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Ordering Publications

Call 1-877-643-2644 or:

APA Style MLA Style AMA Style

NIDA. (2007, June 1). Brain Power: Grades 6-9. Retrieved from https://www.drugabuse.gov/publications/brain-power/brain-power-grades-6-9

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Heroin Heroin belongs to a class of drugs called opioids, which also includes the painkillers codeine and morphine. Heroin comes from a natural substance extracted from the seedpod of the Asian poppy plant. It usually appears as a white or brown powder.

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History of Substance Abuse Rehabilitation

As drugs have been abused for hundreds of years all over the world, their effects have been felt for just as long.

As drugs have been abused for hundreds of years all over the world, their effects have been felt for just as long. Since drugs have been used, there were always those who abused them, which led to full-blown addiction and the bevy of side effects that come with it. As the physical and mental health implications of addiction became clearer, rehabilitation efforts began to appear. As a result, the history of rehabilitation in the United States dates back hundreds of years.

One of the Founding Fathers of America, Benjamin Rush, was one of the first to believe that alcoholism was not a matter of personal willpower but rather due to the alcohol itself. Rush challenged the accepted belief at the time that alcoholism was a moral failing, thereby progressing the concept of addiction as a disease. Per the University of Utah, in the past, addiction was treated as a criminal offense, with intensive faith-based prayer, or in mental institutions, but this signified a shift to viewing addiction as an illness that could be managed.

In 1864, the New York State Inebriate Asylum, the first hospital intended to solely treat alcoholism as a mental health condition, was founded. As the public began to view alcoholism and related drug abuse more seriously, more community groups and sober houses began appearing.

Today, thousands of drug abuse rehabilitation programs offer addicts a variety of treatment approaches, ranging from traditional, evidenced-based care to more experimental or holistic services. Since care should be customized according to the individual patient, oftentimes one's treatment regime will consist of a range of therapies that have been chosen specifically for the individual.

Following Prohibition and the Twenty-first Amendment, which overturned Prohibition, a major step for the rehabilitation movement came in 1935, when Dr. Bob Smith and Bill Wilson - commonly known as Dr. Bob and Bill W. - founded Alcoholics Anonymous (AA). Using a spiritually based approach to rehabilitation, AA presented a welcoming environment where recovering alcoholics could find solace and support. From the AA format, various other branches formed, such as:

Narcotics Anonymous (NA).

Cocaine Anonymous (CA).

Marijuana Anonymous (MA).

Today, thousands of drug abuse rehabilitation programs offer addicts a variety of treatment approaches, ranging from traditional, evidenced-based care to more experimental or holistic services. Since care should be customized according to the individual patient, oftentimes one's treatment regime will consist of a range of therapies that have been chosen specifically for the individual.

Video: A Round for the House - A History of Drinking in America
Credit: A Round for the House - A History of Drinking in America. Produced by Stephen R. Powell and Thomas P. McDade
Drug Trends Prior to 2000

Drug abuse has plagued the American continent since the 1800s, when morphine, heroin and cocaine were hailed for their amazing curative properties. By the mid-20th century, however, illicit drug use was all but eradicated in the US through focused national and global suppression of the industry. All that changed in the 1960s when many new and exotic drugs, such as hallucinogens, amphetamines and marijuana, became more readily available.

The proliferation of these substances birthed many government agencies, all commissioned to counter the scourge of illegal drugs. These bureaucracies, in turn, needed statistical information in order to effectively understand the scope of their task. In due course, they discovered that:

Between 1980 and 1984, first-time cocaine users averaged 1.3 million per year.

By 1994, that number dwindled to 533,000.

In 1995, 5,000,000 Americans confessed to smoking marijuana on a frequent basis.

In 1996, the Office of Drug Control Policy detected an increase in heroin use among youth and young adults.

Between 1992 and 1993, 5.5 percent of pregnant women per year took some form of illicit drug.

Historical Drug Abuse

Beer

Since the dawn of history, mankind has found ways to relieve the daily grind of life. In ancient Mesopotamia (the area now known as Iraq), agriculture slowly began to flourish, and a large network of city states started to gain prominence. With the cultivation of wheat and barley came another product: beer. After all, the water wasn't particularly healthy, and the weak alcohol content in beer killed off a lot of harmful organisms in the water.

While the beer wasn't particularly strong, it also wasn't particularly nice, as the concept of sterility was unknown in 3,000 BCE. However, beer was consumed in bulk, and even the gods enjoyed getting drunk. Consequently, addiction to alcohol was rampant in the so-called cradle of civilization, and people during that time generally lived much shorter lives thanks to disease and, presumably, drunkenness.

History of Drug Abuse Quiz question 1

Opium

Throughout the time that beer was gaining popularity, the Indians, Assyrians and Egyptians were cultivating and preparing opium from the opium poppy. Indeed, the upper classes of many civilizations would use this to relax and pass time, although some uses are much less benign. One Egyptian scroll recommends using opium to soothe a crying baby.

History of Drug Abuse Quiz question 2

Hallucinogens and Natural Highs

Moving on 15 centuries, the cults of Dionysus, Demeter and Persephone in ancient Greece used a special form of mead (fermented honey) or beer to induce visions known as mysteries. Naturally, there is something very mystical in seeing hallucinations, and plants containing entheogens (natural chemicals that induce hallucinations) have been widely cultivated throughout the world; these include the peyote cactus, fly agaric, and cannabis. Clearly, this is a form of drug abuse, although it was a socially acceptable one at the time.

While the Romans embraced these drugs for recreational use because of the ease of obtaining them through trade, there was a long period of time after the fall of the Roman empire known as the Dark Ages where relatively few intoxicants were imported to Europe. Over the Atlantic, the Aztecs, Incas and Mayans were experimenting with peyote, cannabis and mescaline to induce shamanic visions.

History of Drug Abuse Quiz question 3

Cocaine

During the second millennium, world trade started to be more prominent. Ships started sailing from China to Europe-Marco Polo rediscovered major trade routes to India and China, and in 1492, a lost expedition led by Christopher Columbus ended up in Hispaniola, the island that encompasses the Dominican Republic and Haiti.

After that, the American continent became ripe for development. Various conquistadors discovered the drugs that kept the locals going, especially cocaine, which was touted as a wonder cure for all ailments.

History of Drug Abuse Quiz question 4

Tobacco

One of the major drugs that came out of the New World was tobacco. Sir Walter Raleigh famously introduced dried tobacco leaves to England, where they were controlled and taxed heavily. Again, abuse of tobacco led to very expensive addictions, as it was a risky but incredibly profitable voyage for those who made it over the Atlantic.

The Continuing Spread of Addictive Substances

Opium eventually made it to China, and the local Chinese started trading it with the British, French and Dutch traders. It started arriving in Europe and the Americas in bulk in the late 17th century, when it swiftly became a problem.

With improved ships that could carry more cargo, traders could get almost anywhere in the world and bring back whatever they could get their hands on. Without control, drugs ran rampant through middle and upper society. The poor were no better off; in Europe-particularly in Britain- gin had become a nuisance thanks to some exceptionally poorly thought-out laws, and in the Americas, cannabis, rum and beer were proving problematic for colonists.

While the use of opium for dulling pain was well known by physicians worldwide, the real problem began with the isolation of morphine from opium in 1804. Introduced commercially in 1827, morphine quickly became the drug of choice, particularly after the advent of the hypodermic syringe in 1853. With few effective controls on its production and sale, it rapidly reached epidemic levels in the United States thanks to the American Civil War. Around 45,000 soldiers came home from this war unable to function without morphine, according to Time's The Civil War: An Illustrated History. A similar effect was observed in the Franco-Prussian wars between France and Germany.

History of Drug Abuse Quiz question 5

In the late half of the 19th century, drug abuse was so widespread that Britain went to war twice with China to keep opium trade routes open, and these naturally became known as the Opium Wars. Cocaine was isolated in 1884 and quickly became yet another widespread drug of abuse. Heroin and other opiates were synthesized and marketed as nonaddictive alternatives to morphine. Of course, heroin did turn out to be very addictive, causing more people to abuse the drug.

Thanks to increased chemical and drug development in the 20th century, more drugs with abuse potential became available. LSD, methamphetamine and synthetic opiates are all relatively recent drugs. To counter the growing tide of addiction, drug laws became stricter, and drug addiction started to carry a serious social stigma.

History of Drug Abuse Quiz question 6

Fortunately, there are now places to help people with addictions lead a healthy life. While early 20th-century society felt drug addiction was a moral flaw, it is now regarded by many as a disease or a chronic issue that requires treatment to stop.

Consequently, if you call us at Who Answers?, our treatment admissions advisors can help locate a center that will help you avoid the pitfalls that beset a world with a longstanding history of substance abuse.

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As drugs have been abused for hundreds of years all over the world, their effects have been felt for just as long. As drugs have been abused for hundreds of years all over the world, their effects have been felt for just as long.

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What is environmental crime?

Activities that may constitute an environmental crime under Commonwealth law include actions that have a significant impact on matters of national environmental significance, namely:

World Heritage properties

National Heritage places

wetlands of international importance

threatened species and ecological communities

migratory species

Commonwealth marine areas

nuclear actions (including uranium mining).

Environmental law

Environmental offences under Commonwealth legislation are found in a number of different acts. Some of these are:

Agencies involved in investigation of environmental crime

The protection of the Australian environment is an issue the Australian Government and the AFP take very seriously. A number of Australian Government departments have a role to play in the detection and enforcement of laws designed to protect our environment.

Australian Federal Police

The AFP is the primary law enforcement agency responsible for investigating crimes against the Commonwealth of Australia. The AFP will take a lead role in the investigation of the environmental crime where the complexity, sensitivity or degree of harm caused to the environment necessitates the AFP's involvement as the lead investigating authority.

In general the AFP implements a joint agency approach to investigations into environmental crime, enabling the specialist capabilities and resources of other agencies to be used. This approach is effective in ensuring the best outcome for the environment and the Australian community.

Department of the Environment

The Department of the Environment is the Australian Government agency responsible for administering most of the Commonwealth Acts relating specifically to the environment. The department investigates matters that have a significant impact on aspects of the environment that are nationally significant, on cultural heritage matters and on the import/export of threatened species.

Australian Border Force

The Australian Border Force is the Australian Government agency that manages the security and integrity of Australia's borders. The Australian Border Force plays an important role in detecting and investigating the illegal movement of environmental and heritage goods.

Australian Fisheries Management Authority

The Australian Fisheries Management Authority (AFMA) is the statutory authority responsible for the detection and investigation of illegal activities by both domestic and foreign fishing boats in the Australian Fishing Zone and Commonwealth managed fisheries.

Australian Maritime Safety Authority

Australian Maritime Safety Authority (AMSA) is responsible for the enforcement of environmental standards for ships in Commonwealth jurisdiction. This generally relates to pollution such as oil spills and waste caused by shipping.

Australian Quarantine and Inspection Service

Australian Quarantine and Inspection Service (AQIS) detects, investigates and prosecutes where export or quarantine laws are breached. Australia's export and quarantine laws protect Australia's animal, plant, human health and the environment.

State government agencies

State government environment and resource agencies have a key role in ensuring the protection of the environment. Where matters do not relate to Commonwealth law or are not matters of national environmental significance, the State agencies would normally be the most appropriate level of government to investigate environmental offences.

Reporting environmental crime

If you have information relating to actions that may harm or have the potential to cause harm to the Australian environment or alleged breaches of Commonwealth environment laws, report this directly to the appropriate Australian Government department.

If you are unsure where to report information then it can be sent to Crime stoppers.

Definitions

Significant impact

This can include actions which will or are likely to decrease the survival of a threatened species. The complete criteria, for assessing significant impacts can be obtained from the Department of the Environment.

CITES

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is an international agreement designed to ensure that international trade in wild plants and animals does not threaten their survival. Australia is a signatory to CITES.

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Activities that may constitute an environmental crime under Commonwealth law include actions that have a significant impact on matters of national environmental significance, namely: World Heritage properties National Heritage places wetlands of international importance threatened species and ecological communities migratory species Commonwealth marine areas nuclear actions (including uranium mining).

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Cultural property is part of the common heritage of humankind. It is so unique and important a testimony of the evolution and identity of peoples, that the importance of protecting it has been stressed in several international instruments.

Organized criminal groups are increasingly involved in trafficking in cultural property, both through legitimate markets, such as auctions and through the Internet, and in underground illicit markets. Trafficking in cultural property is also becoming an important source for the laundering of the proceeds of crime, and has been recently identified as a possible source of financing for terrorist groups.

Trafficking in cultural property involves several acts that may ultimately result in the loss, destruction, removal or theft of irreplaceable items. While criminals make significant profits from this illicit trafficking, humankind is denied access to archaeological information and to artefacts of its shared heritage. For instance, many relics and monuments from past generations remain buried underground. Where ancient artefacts are stolen and the sites in which they were hidden are destroyed through looting, archaeologists are unable to gather knowledge about the past. A substantial amount of looting happens around the world, and yet so far the efforts to combat trafficking in cultural property have not been in proportion to the gravity and extent of this criminal manifestation.

UNODC Response

Increased recognition of the transnational criminal elements involved in the trafficking of cultural property brings to the fore the role of UNODC in increasing the international crime prevention and criminal justice response to this crime.

UNODC works to harness the potential of the United Nations Convention against Organized Crime to address serious crimes relating to trafficking in cultural property when committed by organized crime groups. Many of the provisions of the Convention are relevant to the transnational crime of trafficking in cultural property, and, in turn, many of its provisions empower States parties to rally against transnational criminals to protect their common cultural heritage. Furthermore, the adoption by the General Assembly of the International Guidelines for Crime Prevention and Criminal Justice Responses with Respect to Trafficking in Cultural Property and Other Related Offenses has offered to the international community a new tool to review and strengthen its responses to this form of crime.

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international cooperation to combat wildlife crime

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international cooperation to combat forest crime

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trafficking in endangered species of wild fauna and flora

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united nations convention against transnational organized crime

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international consortium on combating wildlife crime

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Cultural property is part of the common heritage of humankind. It is so unique and important a testimony of the evolution and identity of peoples, that the importance of protecting it has been stressed in several international instruments.

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Call 000 - If there is an immediate threat to life or risk of harm

Contact your financial institution if your details have been compromised

Report cybercrime →
As people rely on computers to do more and as technology develops, the threat from cybercriminals and the complexity of cybercrime grows.

Through the AFP-led Joint Policing Cybercrime Coordination Centre (JPC3) the AFP is committed to working closely with State and Territory Police and international policing agencies in the fight against all types of cybercrime.

Learn more about the AFP's role in fighting cybercrime.

To helps us in our fight against cybercriminals, we need all Australians to take steps to understand cybercrime and to protect themselves so they don't become a victim.

How to protect yourself

The AFP's video series helps you understand different types of cybercrime and provides tips on how to protect yourself.

What is Cybercrime?

In Australia, the term 'cybercrime' is used to describe:

crimes directed at computers or other information communications technologies (ICTs) (such as computer intrusions and denial of service attacks)

crimes where computers or ICTs are an integral part of an offence (such as online fraud).

Where to Report

ReportCyber

If you are a victim of cybercrime report it to police using Report Cyber.

Scamwatch

If you see a scam and want to report it, you can report to Scamwatch. This includes dating and romance scams, buying and selling scams, fake charities, investments, jobs and employment.

Australian Centre to Counter Child Exploitation (ACCCE)

Report incidents of online child abuse material to the ACCCE.

In the case of a child who is in immediate danger or risk call 000 or your local police station

eSafety

Report incidents of cyberbullying of children, adult cyber abuse, image-based abuse (sharing, or threatening to share, intimate images without the consent of the person shown) and illegal and restricted content to the eSafety commissioner.

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Call 000 - If there is an immediate threat to life or risk of harm Contact your financial institution if your details have been compromised Report cybercrime → As people rely on computers to do more and as technology develops, the threat from cybercriminals and the complexity of cybercrime grows.

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Environmental concerns are a frequent talking point drawn upon by politicians and scientists alike, and for good reason. Irrespective of economic or social status, climate change has the potential to affect us all.

While public urgency surrounding climate action has been growing, it can be difficult to comprehend the potential extent of economic disruption that environmental risks pose.

Front and Center

Today's chart uses data from the World Economic Forum's annual Global Risks Report, which surveyed 800 leaders from business, government, and non-profits to showcase the most prominent economic risks the world faces.

According to the data in the report, here are the top five risks to the global economy, in terms of their likelihood and potential impact:

With more emphasis being placed on environmental risks, how much do we need to worry?

According to the World Economic Forum, more than we can imagine. The report asserts that, among many other things, natural disasters are becoming more intense and more frequent.

While it can be difficult to extrapolate precisely how environmental risks could cascade into trouble for the global economy and financial system, here are some interesting examples of how they are already affecting institutional investors and the insurance industry.

The Stranded Assets Dilemma

If the world is to stick to its 2°C global warming threshold, as outlined in the Paris Agreement, a significant amount of oil, gas, and coal reserves would need to be left untouched. These assets would become "stranded", forfeiting roughly $1-4 trillion from the world economy.

Growing awareness of this risk has led to a change in sentiment. Many institutional investors have become wary of their portfolio exposures, and in some cases, have begun divesting from the sector entirely.

The financial case for fossil fuel divestment is strong. Fossil fuel companies once led the economy and world stock markets. They now lag.

- Institute for Energy Economics and Financial Analysis
The last couple of years have been a game-changer for the industry's future prospects. For example, 2018 was a milestone year in fossil fuel divestment:

Nearly 1,000 institutional investors representing $6.24 trillion in assets have pledged to divest from fossil fuels, up from just $52 billion four years ago;

Ireland became the first country to commit to fossil fuel divestment. At the time of announcement, its sovereign development fund had $10.4 billion in assets;

New York City became the largest (but not the first) city to commit to fossil fuel divestment. Its pension funds, totaling $189 billion at the time of announcement, aim to divest over a 5-year period.

A Tough Road Ahead

In a recent survey, actuaries ranked climate change as their top risk for 2019, ahead of damages from cyberattacks, financial instability, and terrorism-drawing strong parallels with the results of this year's Global Risk Report.

These growing concerns are well-founded. 2017 was the costliest year on record for natural disasters, with $344 billion in global economic losses. This daunting figure translated to a record year for insured losses, totalling $140 billion.

Although insured losses over 2019 have fallen back in line with the average over the past 10 years, Munich RE believes that long-term environmental effects are already being felt:

Recent studies have shown that over the long term, the environmental conditions for bushfires in Australia have become more favorable;

Despite a decrease in U.S. wildfire losses compared to previous years, there is a rising long-term trend for forest area burned in the U.S.;

An increase in hailstorms, as a result of climate change, has been shown to contribute to growing losses across the globe.

The Ball Is In Our Court

It's clear that the environmental issues we face are beginning to have a larger real impact. Despite growing awareness and preliminary actions such as fossil fuel divestment, the Global Risk Report stresses that there is much more work to be done to mitigate risks.

How companies and governments choose to respond over the next decade will be a focal point of many discussions to come.

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Cybersecurity: Fighting a Threat That Causes $450B of Damage Each Year

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Environmental concerns are a frequent talking point drawn upon by politicians and scientists alike, and for good reason. Irrespective of economic or social status, climate change has the potential to affect us all. While public urgency surrounding climate action has been growing, it can be difficult to comprehend the potential extent of economic disruption that environmental risks pose.

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Australasian Legal Information Institute (AustLII), a joint facility of UTS and UNSW Faculties of Law.

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Council of Europe Convention - cybercrime

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Council of Europe Convention - cybercrime

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The Convention is the first international treaty on crimes committed via the Internet and other computer networks, dealing particularly with infringements of copyright, computer-related fraud, child pornography and violations of network security. It also contains a series of powers and procedures such as the search of computer networks and interception.

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Cybercrime Legislation Amendment Act 2012 (Cth)

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Cybercrime Legislation Amendment Act 2012 (Cth)

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Cybercrime Legislation Amendment Act 2012

No. 120, 2012

An Act to implement the Council of Europe Convention on Cybercrime, and for other purposes

[ Assented to 12 September 2012]

The Parliament of Australia enacts:

This Act may be cited as the Cybercrime Legislation Amendment Act 2012.

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Telecommunications Act 1997

1 After paragraph 313(7)(c)

Insert:

(ca) complying with a domestic preservation notice or a foreign preservation notice that is in force under Part 3‑1A of that Act; or

Telecommunications (Interception and Access) Act 1979

2 Subsection 5(1)

Insert:

certifying official, of an issuing agency, means:

(a) if the issuing agency is an enforcement agency (including an interception agency)-a certifying officer of the agency; and

(b) if the issuing agency is the Organisation-a certifying person of the Organisation.

3 Subsection 5(1)

Insert:

domestic preservation notice has the meaning given by subsection 107H(1).

4 Subsection 5(1)

Insert:

foreign preservation notice has the meaning given by subsection 107N(1).

5 Subsection 5(1)

Insert:

historic domestic preservation notice has the meaning given by subparagraph 107H(1)(b)(i).

8 Subsection 5(1)

Insert:

issuing agency, in relation to a preservation notice, means the agency that gives the notice.

9 Subsection 5(1)

Insert:

ongoing domestic preservation notice has the meaning given by subparagraph 107H(1)(b)(ii).

10 Subsection 5(1)

Insert:

preservation notice means a domestic preservation notice or a foreign preservation notice.

11 Subsection 5(1)

Insert:

preservation notice information has the meaning given by section 6EAA.

12 Subsection 5(1)

Insert:

preserve, in relation to a stored communication, means maintain the integrity of:

(a) the stored communication; or

(b) a copy of the stored communication.

13 Subsection 5(1)

Insert:

relates:

(a) a stored communication relates to a person only if it is:

(i) a stored communication that the person has made; or

(ii) a stored communication that another person has made and for which the person is the intended recipient; and

(b) a stored communication relates to a telecommunications service only if it has passed over a telecommunications system by way of the telecommunications service.

14 Subsection 5(1)

Insert:

relevant period, for a domestic preservation notice, means:

(a) for an historic domestic preservation notice-the period referred to in subparagraph 107H(1)(b)(i); and

(b) for an ongoing domestic preservation notice-the period referred to in subparagraph 107H(1)(b)(ii).

15 Subsection 5(1)

Insert:

working day means any day except:

(a) a Saturday or a Sunday; or

(b) a day that is a public holiday in any State or Territory.

16 After section 6EA

Insert:

6EAA Preservation notice information

A reference in this Act to preservation notice information is a reference to:

(a) information about any of the following:

(i) the giving of a preservation notice;

(ii) for a foreign preservation notice-the making of a request under section 107P to preserve stored communications covered by the notice;

(iii) the existence or non‑existence of a preservation notice;

(iv) the expiry of a preservation notice; or

(b) any other information that is likely to enable the identification of:

(i) the person or telecommunications service specified in a preservation notice; or

(ii) the person or telecommunications service to which a preservation notice relates.

17 Chapter 3 (heading)

Repeal the heading, substitute:

18 Before Part 3‑1

Insert in Chapter 3:

107G Outline of this Part

This Part establishes a system of preserving certain stored communications that are held by a carrier. The purpose of the preservation is to prevent the communications from being destroyed before they can be accessed under certain warrants issued under this Act.

Under the system, certain agencies can give a preservation notice to a carrier requiring the carrier to preserve all stored communications that the carrier holds that relate to the person or telecommunications service specified in the notice. The carrier will breach its obligations under section 313 of the Telecommunications Act 1997 if it does not comply with the notice.

There are 2 types of preservation notices: domestic preservation notices (which cover stored communications that might relate either to a contravention of certain Australian laws or to security) and foreign preservation notices (which cover stored communications that might relate to a contravention of certain foreign laws).

Division 2 deals with domestic preservation notices. There are 2 kinds of domestic preservation notices:

(a) historic domestic preservation notices, which cover stored communications held by the carrier on a particular day; and

(b) ongoing domestic preservation notices, which cover stored communications held by the carrier in a particular 30‑day period.

An issuing agency (which is an enforcement agency or the Organisation for an historic domestic preservation notice, and an interception agency or the Organisation for an ongoing domestic preservation notice) can only give a domestic preservation notice if the conditions in section 107J are satisfied. There are certain grounds on which the notice must be revoked (see section 107L).

Division 3 deals with foreign preservation notices. Foreign preservation notices, like historic domestic preservation notices, cover stored communications held by the carrier on a particular day. Only the Australian Federal Police can give a foreign preservation notice to a carrier and it can only do so if a foreign country has made a request for the preservation in accordance with section 107P. There are certain grounds on which the notice must be revoked (see section 107R).

Division 4 has miscellaneous provisions relating to both domestic and foreign preservation notices (such as provisions about the giving of evidentiary certificates by carriers and issuing agencies).

The Ombudsman has functions in relation to preservation notices given by issuing agencies (other than the Organisation) and the Inspector‑General of Intelligence and Security has functions in relation to preservation notices given by the Organisation.

107H Domestic preservation notices

(1) An issuing agency may give a carrier a written notice (a domestic preservation notice) requiring the carrier to preserve, while the notice is in force, all stored communications that:

(a) relate to the person or telecommunications service specified in the notice; and

(b) the carrier holds at any time during:

(i) the period that starts at the time the carrier receives the notice and ends at the end of the day the carrier receives the notice (in which case the notice is an historic domestic preservation notice); or

(ii) the period that starts at the time the carrier receives the notice and ends at the end of the 29th day after the day the carrier receives the notice (in which case the notice is an ongoing domestic preservation notice).

(2) However, the agency can only give the notice if the conditions in subsection 107J(1) or (2) are satisfied.

(3) In the notice, the agency can only specify:

(a) one person; or

(b) one or more telecommunications services; or

(c) one person and one or more telecommunications services.

107J Conditions for giving domestic preservation notices

Notices given by enforcement agencies or interception agencies

(1) A domestic preservation notice may be given under subsection 107H(1) if:

(a) the issuing agency is:

(i) for an historic domestic preservation notice-an enforcement agency; and

(ii) for an ongoing domestic preservation notice-an enforcement agency that is an interception agency; and

(b) the agency is investigating a serious contravention; and

(c) the agency considers that there are reasonable grounds for suspecting that, in the relevant period for the notice, there are stored communications in existence, or stored communications might come into existence, that:

(i) might assist in connection with the investigation; and

(ii) relate to the person or telecommunications service specified in the notice; and

(d) the agency intends that if, at a later time, the agency considers that the stored communications would be likely to assist in connection with the investigation, then the agency will apply for a Part 2‑5 warrant or a stored communications warrant to access those communications; and

(e) for an ongoing domestic preservation notice-there is not another ongoing domestic preservation notice in force that:

(i) was given by the agency to the same carrier; and

(ii) specifies the same person or telecommunications service.

Notices given by the Organisation

(2) A domestic preservation notice may be given under subsection 107H(1) if:

(a) the issuing agency is the Organisation; and

(b) the Organisation considers that there are reasonable grounds for suspecting that, in the relevant period for the notice, there are stored communications in existence, or stored communications might come into existence, that:

(i) might assist the Organisation in carrying out its function of obtaining intelligence relating to security; and

(ii) relate to the person or telecommunications service specified in the notice; and

(c) the Organisation intends that if, at a later time, the Organisation considers that the stored communications would be likely to assist in carrying out that function, then the Director‑General of Security will request a Part 2‑2 warrant to access those communications; and

(d) for an ongoing domestic preservation notice-there is not another ongoing domestic preservation notice in force that:

(i) was given by the Organisation to the same carrier; and

(ii) specifies the same person or telecommunications service.

107K When a domestic preservation notice is in force

A domestic preservation notice:

(a) comes into force when the carrier receives it; and

(b) ceases to be in force at the earliest of the following times:

(i) the end of the period of 90 days, starting on the day the carrier receives it;

(ii) if the notice is revoked under section 107L-when the carrier receives notice of the revocation;

(iii) if a Part 2‑5 warrant or stored communications warrant authorising access to the stored communications covered by the notice is issued in relation to the issuing agency-when the warrant ceases to be in force;

(iv) if a Part 2‑2 warrant authorising access to the stored communications covered by the notice is issued in relation to the issuing agency-the end of the period of 5 days after the day the warrant was issued.

107L Revoking a domestic preservation notice

Discretionary revocation

(1) An issuing agency that has given a domestic preservation notice may revoke the notice at any time.

Mandatory revocation

(2) An issuing agency that has given a domestic preservation notice must revoke the notice if:

(a) if the issuing agency is an enforcement agency (including an interception agency):

(i) the condition in paragraph 107J(1)(b) or (c) is no longer satisfied; or

(ii) the agency decides not to apply for a Part 2‑5 warrant or stored communications warrant to access the stored communications covered by the notice; or

(b) if the issuing agency is the Organisation:

(i) the condition in paragraph 107J(2)(b) is no longer satisfied; or

(ii) the Organisation is satisfied that the Director‑General of Security will not request a Part 2‑2 warrant to access the stored communications covered by the notice.

Revocation effected by giving revocation notice

(3) A domestic preservation notice is revoked by the issuing agency giving the carrier to whom it was given written notice of the revocation.

107M Persons who act on the issuing agency's behalf

Historic domestic preservation notices

(1) An historic domestic preservation notice may only be given or revoked on behalf of an issuing agency by:

(a) if the issuing agency is an enforcement agency-a person who may, under section 110, apply on the agency's behalf for a stored communications warrant to access the stored communications covered by the notice; and

(b) if the issuing agency is the Organisation-a certifying person.

Ongoing domestic preservation notices

(2) An ongoing domestic preservation notice may only be given on behalf of an issuing agency by:

(a) if the issuing agency is an enforcement agency that is an interception agency-an authorised officer of the agency; and

(b) if the issuing agency is the Organisation-the Director‑General of Security.

(3) An ongoing domestic preservation notice may only be revoked on behalf of an issuing agency by:

(a) if the issuing agency is an enforcement agency that is an interception agency-an authorised officer of the agency; and

(b) if the issuing agency is the Organisation-a certifying person.

107N When a foreign preservation notice can be given

(1) If the Australian Federal Police receives a request in accordance with section 107P, the Australian Federal Police must give the carrier to which the request relates a written notice (a foreign preservation notice) requiring the carrier to preserve, while the notice is in force, all stored communications that:

(a) relate to the person or telecommunications service specified in the notice; and

(b) the carrier holds at any time during the period that starts at the time the carrier receives the notice and ends at the end of the day the carrier receives the notice.

(2) In the notice, the Australian Federal Police can only specify:

(a) one person; or

(b) one or more telecommunications services; or

(c) one person and one or more telecommunications services.

107P Condition for giving a foreign preservation notice

(1) If, under paragraph 15B(d) of the Mutual Assistance in Criminal Matters Act 1987, a foreign country intends to request the Attorney‑General to arrange for access to stored communications that:

(a) relate to a specified person or specified telecommunications service; and

(b) are held by a carrier; and

(c) are relevant to an investigation, or investigative proceeding, relating to a criminal matter involving a serious foreign contravention;

then the foreign country may request the Australian Federal Police to arrange for the preservation of those stored communications.

(2) The request to the Australian Federal Police must:

(a) be in writing; and

(b) specify the name of the authority concerned with the criminal matter; and

(c) specify the serious foreign contravention that is the subject of the investigation or investigative proceeding; and

(d) specify information identifying the stored communications to be preserved and the relationship between those communications and the serious foreign contravention; and

(e) specify any information the foreign country has that identifies the carrier that holds the stored communications; and

(f) if the stored communications relate to a specified person-specify any information the foreign country has that identifies the telecommunications service to which the stored communications relate; and

(g) specify the reasons why the stored communications need to be preserved; and

(h) specify that the foreign country intends to make a request under paragraph 15B(d) of the Mutual Assistance in Criminal Matters Act 1987 to access the stored communications.

107Q When a foreign preservation notice is in force

A foreign preservation notice:

(a) comes into force when the carrier receives it; and

(b) ceases to be in force at the earlier of the following times:

(i) if the notice is revoked under section 107R-when the carrier receives notice of the revocation;

(ii) if a stored communications warrant authorising access to the stored communications covered by the notice is issued after the Attorney‑General has given an authorisation in relation to the warrant under section 15B of the Mutual Assistance in Criminal Matters Act 1987 -when the warrant ceases to be in force.

107R Revoking a foreign preservation notice

(1) If:

(a) a foreign country makes a request under section 107P to preserve stored communications that are held by a carrier; and

(b) in response to the request, the Australian Federal Police gives a foreign preservation notice to the carrier in relation to those stored communications under subsection 107N(1); and

(c) during the period of 180 days starting on the day the carrier was given the notice, the foreign country did not make a request to the Attorney‑General under paragraph 15B(d) of the Mutual Assistance in Criminal Matters Act 1987 to arrange for access to those communications;

then the Australian Federal Police must, by the third working day after the end of that period, revoke the preservation notice by giving the carrier to whom it was given written notice of the revocation.

(2) If:

(a) a foreign country makes a request under section 107P to preserve stored communications that are held by a carrier; and

(b) in response to the request, the Australian Federal Police gives a foreign preservation notice to the carrier in relation to those stored communications under subsection 107N(1); and

(c) the foreign country makes a request to the Attorney‑General under paragraph 15B(d) of the Mutual Assistance in Criminal Matters Act 1987 to arrange for access to those communications; and

(d) the Attorney‑General refuses that request;

then the Australian Federal Police must, by the third working day after it is notified of the refusal, revoke the preservation notice by giving the carrier to whom it was given written notice of the revocation.

(3) If:

(a) a foreign country makes a request under section 107P to preserve stored communications that are held by a carrier; and

(b) in response to the request, the Australian Federal Police gives a foreign preservation notice to the carrier in relation to those stored communications under subsection 107N(1); and

(c) the foreign country withdraws the request;

then the Australian Federal Police must, by the third working day after it is notified of the withdrawal, revoke the preservation notice by giving the carrier to whom it was given written notice of the revocation.

107S Persons who act on the AFP's behalf

A foreign preservation notice must be given or revoked on behalf of the Australian Federal Police by an authorised officer of the Australian Federal Police.

107T Evidentiary certificates relating to actions by carriers

(1) The following:

(a) the Managing Director of a carrier or a body corporate of which the carrier is a subsidiary;

(b) the secretary of a carrier or a body corporate of which the carrier is a subsidiary;

(c) an employee of a carrier authorised in writing for the purposes of this paragraph by a person referred to in paragraph (a) or (b);

may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to acts or things done by, or in relation to, employees of the carrier in order to comply with a preservation notice.

(2) A document purporting to be a certificate issued under subsection (1) and purporting to be signed by a person referred to in paragraph (a), (b) or (c) of that subsection:

(a) is to be received in evidence in an exempt proceeding without further proof; and

(b) in an exempt proceeding, is conclusive evidence of the matters stated in the document.

(3) For the purposes of this section, the question whether a body corporate is a subsidiary of another body corporate is to be determined in the same manner as the question is determined under the Corporations Act 2001.

107U Evidentiary certificates relating to actions by issuing agencies

(1) A certifying official of an issuing agency may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to anything done by an officer or staff member of the agency in connection with a preservation notice.

(2) A document purporting to be a certificate issued under this section by a certifying official of an issuing agency and purporting to be signed by him or her:

(a) is to be received in evidence in an exempt proceeding without further proof; and

(b) in an exempt proceeding, is prima facieevidence of the matters stated in the document.

107V Certified copies of preservation notices

A document certified in writing by a certifying official of an issuing agency to be a true copy of a preservation notice is to be received in evidence in an exempt proceeding as if it were the original preservation notice.

107W How notices are to be given to carriers

For the purposes of this Part:

(a) a preservation notice; or

(b) a revocation notice under section 107L or 107R;

may only be given to a carrier by giving it to an authorised representative of the carrier.

19 Before subparagraph 108(2)(f)(i)

Insert:

(ia) preservation notices; or

20 Division 1 of Part 3‑4 (heading)

Repeal the heading, substitute:

21 After subparagraph 133(1)(b)(ii)

Insert:

(iia) preservation notice information; or

Note: The heading to section 133 is altered by omitting " or stored communications warrant information" and substituting " etc. ".

22 Section 134

Repeal the section, substitute:

134 Dealing in preservation notice information or stored communications warrant information

A person may, for the purposes of Part 3‑1A, 3‑2, 3‑3, 3‑5 or 3‑6:

(a) communicate preservation notice information or stored communications warrant information to another person; or

(b) make use of preservation notice information or stored communications warrant information; or

(c) make a record of preservation notice information or stored communications warrant information; or

(d) give preservation notice information or stored communications warrant information in evidence in a proceeding.

23 After subsection 135(4)

Insert:

Preservation notice information

(4A) An employee of a carrier may, in the performance of his or her duties as such an employee, communicate or make use of, or cause to be communicated, preservation notice information if:

(a) the employee does so in the performance of his or her duties as such an employee; and

(b) the information is reasonably necessary to enable the carrier to comply with the preservation notice.

(4B) An employee of a carrier may communicate or cause to be communicated to another carrier, or to an employee of another carrier, preservation notice information if the information is reasonably necessary to enable the carrier to comply with the preservation notice.

24 After paragraphs 136(1)(a), 137(1)(a), 138(1)(a), 138(2)(a) and 139(1)(a)

Insert:

(aa) preservation notice information;

25 Subsection 146(2)

After "give", insert "preservation notice information or".

26 Part 3‑5 (heading)

Repeal the heading, substitute:

Part 3‑5-Keeping and inspection of preservation notice and access records

27 Division 1 of Part 3‑5 (heading)

Repeal the heading, substitute:

28 Before section 151

Insert into Division 1 of Part 3‑5:

150A Enforcement agencies to keep documents connected with giving preservation notices

The chief officer of an enforcement agency must cause to be kept in the agency's records:

(a) each preservation notice given by the agency; and

(b) each instrument revoking such a notice; and

(c) a copy of each certificate issued under subsection 107U(1) by a certifying officer of the agency.

29 Division 2 of Part 3‑5 (heading)

Repeal the heading, substitute:

30 Paragraph 152(a)

After "150", insert ", 150A".

31 Subsection 153(3)

After "150", insert ", 150A".

32 At the end of Part 3‑5

Add:

158A Functions of the Inspector‑General of Intelligence and Security

(1) Under the Inspector‑General of Intelligence and Security Act 1986, the Inspector‑General of Intelligence and Security has functions in relation to preservation notices given by the Organisation.

(2) In particular, the Inspector‑General of Intelligence and Security has the function of:

(a) inquiring into any matter that relates to compliance by the Organisation with this Act (see subparagraph 8(1)(a)(i) of that Act); and

(b) conducting such inspections of the Organisation as the Inspector‑General considers appropriate for the purpose of giving effect to the objects of that Act (see section 9A of that Act).

33 After section 161

Insert:

161A Report to contain information about preservation notices

Domestic preservation notices

(1) The report must set out, for each enforcement agency:

(a) the relevant statistics about domestic preservation notices that were given by the agency during that year; and

(b) the relevant statistics about revocation notices given by the agency under section 107L during that year.

Foreign preservation notices

(2) If the enforcement agency is the Australian Federal Police, the report must also set out:

(a) the relevant statistics about foreign preservation notices that were given by the agency during that year; and

(b) the relevant statistics about revocation notices given by the agency under section 107R during that year.

34 Transitional provision for item 18-ongoing domestic preservation notices

Despite the insertion of section 107H into the Telecommunications (Interception and Access) Act 1979 made by item 18 of this Schedule, an issuing agency may not a give a carrier an ongoing domestic preservation notice under that section before the end of the period that:

(a) starts on the day this Act receives the Royal Assent; and

(b) ends 90 days after that day.

Mutual Assistance in Criminal Matters Act 1987

1 Subsection 3(1)

Insert:

2 Subsection 3(1)

Insert:

investigative proceedingmeans a proceeding covered by paragraph (a) or (b) of the definition of proceeding.

3 Subsection 3(1)

Insert:

4 After Part III

Insert:

15B Requests by foreign countries for stored communications

The Attorney‑General may, in his or her discretion, authorise the Australian Federal Police or a police force or police service of a State, in writing, to apply for a stored communications warrant under section 110 of the Telecommunications (Interception and Access) Act 1979 if the Attorney‑General is satisfied that:

(a) an investigation, or investigative proceeding, relating to a criminal matter involving an offence against the law of a foreign country (the requesting country) has commenced in the requesting country; and

(b) the offence to which the investigation, or investigative proceeding, relates is punishable by a maximum penalty of:

(i) imprisonment for 3 years or more, imprisonment for life or the death penalty; or

(ii) a fine of an amount that is at least equivalent to 900 penalty units; and

(c) there are reasonable grounds to believe that stored communications relevant to the investigation, or investigative proceeding, are held by a carrier; and

(d) the requesting country has requested the Attorney‑General to arrange for access to the stored communications.

Note: Information obtained under the warrant may only be communicated to the requesting country on certain conditions: see subsection 142A(1) of the Telecommunications (Interception and Access) Act 1979.

Telecommunications (Interception and Access) Act 1979

5 Subsection 5(1)

Insert:

6 Subsection 5(1)

Insert:

7 After section 5E

Insert:

5EA Serious foreign contraventions

For the purposes of this Act, a serious foreign contravention is a contravention of a law of a foreign country that is punishable by a maximum penalty of:

(a) imprisonment for 3 years or more, imprisonment for life or the death penalty; or

(b) a fine of an amount that is at least equivalent to 900 penalty units.

8 Paragraph 6H(c)

Omit "paragraph 116(1)(d)", substitute "subparagraph 116(1)(d)(i) or (ii), as the case requires".

9 Paragraph 116(1)(d)

Omit all the words after "with", substitute:

: (i) in the case of an application other than a mutual assistance application-the investigation by the agency of a serious contravention in which the person is involved (including as a victim of the serious contravention); or

(ii) in the case of a mutual assistance application-the investigation or investigative proceeding, by the foreign country to which the application relates, of a serious foreign contravention to which the application relates and in which the person is involved (including as a victim of the serious foreign contravention); and

10 Paragraph 116(1)(e)

After "subsection (2)", insert "or (2A) (as the case requires)".

11 Subsection 116(2)

Omit "The matters", substitute "In the case of an application other than a mutual assistance application, the matters".

12 Paragraph 116(2)(c)

Omit "paragraph (1)(d)", substitute "subparagraph (1)(d)(i)".

13 After subsection 116(2)

Insert:

(2A) In the case of a mutual assistance application, the matters to which the issuing authority must have regard are:

(a) how much the privacy of any person or persons would be likely to be interfered with by accessing those stored communications under a stored communications warrant; and

(b) the gravity of the conduct constituting the serious foreign contravention; and

(c) how much the information referred to in subparagraph (1)(d)(ii) would be likely to assist in connection with the investigation, to the extent that this is possible to determine from information obtained from the foreign country to which the application relates.

14 Subsection 116(3)

After "contravention", insert "or serious foreign contravention, but cannot relate to both a serious contravention and a serious foreign contravention".

15 Subsection 118(3)

After "contravention", insert "or serious foreign contravention".

16 Subsection 118(3)

Omit "paragraph 116(1)(d)", substitute "subparagraph 116(1)(d)(i) or (ii), as the case may be".

17 Subsection 139(1)

After "(2)", insert "or (4A)".

18 Subsection 139(2)

Omit "The", substitute "In the case of information obtained by the agency other than through the execution of a warrant issued as a result of a mutual assistance application, the".

19 After subsection 139(4)

Insert:

(4A) In the case of information obtained by the agency through the execution of a warrant issued as a result of a mutual assistance application, the purposes are purposes connected with:

(a) providing the information to the foreign country, or an appropriate authority of the foreign country, to which the application relates; or

(b) the keeping of records by the agency under Part 3‑5.

20 After section 142

Insert:

142A Communicating information obtained as a result of a mutual assistance application to foreign country

(1) Despite subsection 139(4A) and section 142, a person may only communicate information, obtained through the execution of a warrant issued as a result of a mutual assistance application, to the foreign country to which the application relates, subject to the following conditions:

(a) that the information will only be used for the purposes for which the foreign country requested the information;

(b) that any document or other thing containing the information will be destroyed when it is no longer required for those purposes;

(c) any other condition determined, in writing, by the Attorney‑General.

(2) A determination made under paragraph (1)(c) is not a legislative instrument.

21 At the end of subsection 162(1)

Add:

; and (c) the relevant statistics about mutual assistance applicationsthat the agency made during that year; and

(d) for each offence (the foreign offence) against a law of a foreign country in respect of which a stored communications warrant was issued as a result of a mutual assistance application made by the agency during the year-the offence (if any), under a law of the Commonwealth, or of a State or a Territory, that is of the same nature as, or a substantially similar nature to, the foreign offence.

22 After paragraph 162(2)(b)

Insert:

(ba) the relevant statistics about mutual assistance applications that were made during that year; and

23 At the end of subsection 162(2)

Add:

; and (e) for each offence (the foreign offence) against a law of a foreign country in respect of which a stored communications warrant was issued as a result of a mutual assistance application made during the year-the offence (if any), under a law of the Commonwealth, or of a State or a Territory, that is of the same nature as, or a substantially similar nature to, the foreign offence.

24 Application of amendments made by this Part

The amendments made by this Part apply in relation to a request by a foreign country that is under consideration on or after the commencement of this item, whether the request was made before or after that commencement.

Mutual Assistance in Criminal Matters Act 1987

25 Subsection 3(1)

Insert:

26 Subsection 3(1)

Insert:

27 Before Part IV

Insert:

15D Requests by foreign countries for telecommunications data

(1) This section applies if:

(a) a foreign country requests the disclosure of specified information or specified documents that come into existence during a specified period; and

(b) the information or documents relate to the fact of a communication passing over a telecommunications system.

(2) To avoid doubt, information or documents do not relate to the fact of a communication passing over a telecommunications system:

(a) if the information is the contents or substance of a communication; or

(b) to the extent that the documents contain the contents or substance of a communication.

(3) The Attorney‑General may authorise the making of an authorisation under section 180B of the Telecommunications (Interception and Access) Act 1979, of a disclosure of information or documents to which this section applies, if he or she is satisfied that:

(a) an investigation relating to a criminal matter involving an offence against the law of the foreign country has commenced in that country; and

(b) the offence:

(i) is punishable by imprisonment for 3 years or more, imprisonment for life or the death penalty; or

(ii) involves an act or omission that, if it had occurred in Australia, would have constituted a serious offence within the meaning of section 5D of the Telecommunications (Interception and Access) Act 1979.

Telecommunications Act 1997

28 Subsection 305(1)

After "Division 4", insert "or 4A".

29 Subparagraph 306(1)(b)(ii)

Omit "or subsection 180(3)", substitute ", subsection 180(3) or section 180A".

30 Paragraph 306A(1)(b)

After "section 180", insert "or 180B".

31 Paragraph 306A(1)(b)

After "subsection 180(2)", insert "or 180B(2)".

Telecommunications (Interception and Access) Act 1979

32 Subsection 5(1) (definition of authorised officer)

Repeal the definition, substitute:

authorised officer:

(a) in sections 180A, 180B, 180C and 180D, subsections 184(5) and 185(2) and paragraph 186(1)(ca), means:

(i) the Commissioner of Police; or

(ii) a Deputy Commissioner of Police; or

(iii) a member of the Australian Federal Police who is covered by an authorisation in force under subsection 5AB(1A); and

(b) in any other case, means:

(i) the head (however described) of the enforcement agency or a person acting as that head; or

(ii) a deputy head (however described) of the enforcement agency or a person acting as that deputy head; or

(iii) a person who holds, or is acting in, an office or position in the enforcement agency that is covered by an authorisation in force under subsection 5AB(1).

33 Subsection 5(1)

Insert:

foreign law enforcement agency means:

(a) a police force (however described) of a foreign country; or

(b) any other authority or person responsible for the enforcement of the laws of the foreign country.

34 Subsection 5AB(1)

Omit "paragraph (c)", substitute "subparagraph (b)(iii)".

Note: The following heading to subsection 5AB(1) is inserted " Authorised officers of an enforcement agency ".

35 Subsection 5AB(2)

Repeal the subsection, substitute:

Authorised officers of the Australian Federal Police

(1A) The Commissioner of Police may authorise, in writing, a senior executive AFP employee who is a member of the Australian Federal Police to be an authorised officer.

(2) A copy of an authorisation must be given to the Communications Access Coordinator:

(a) in the case of an authorisation made under subsection (1)-by the head of the enforcement agency; and

(b) in the case of an authorisation made under subsection (1A)-by the Commissioner of Police.

36 Subsection 171(1)

Omit "and 4", substitute ", 4 and 4A".

37 Subsection 171(1) (note 1)

Repeal the note, substitute:

Note 1: Division 3 covers the Organisation. Division 4 covers disclosures for the purposes of Australian enforcement agencies. Division 4A covers disclosures for the purposes of foreign law enforcement.

38 At the end of subsection 171(3)

Add "or 4A".

39 Section 172

Omit "and 4", substitute ", 4 and 4A".

40 Subsection 180(5)

Repeal the subsection.

41 After Division 4 of Part 4‑1

Insert:

180A Authorisations for access to existing information or documents-enforcement of the criminal law of a foreign country

Disclosure to the Australian Federal Police

(1) Sections 276, 277 and 278 of the Telecommunications Act 1997 do not prevent a disclosure of information or a document if the information or document is covered by an authorisation in force under subsection (2).

(2) An authorised officer of the Australian Federal Police may authorise the disclosure of specified information or specified documents that came into existence before the time the person from whom the disclosure is sought receives notification of the authorisation.

Note: Section 184 deals with notification of authorisations.

(3) The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is reasonably necessary for the enforcement of the criminal law of a foreign country.

Disclosure to a foreign law enforcement agency

(4) If specified information or specified documents are disclosed because of an authorisation given under subsection (2), an authorised officer of the Australian Federal Police may authorise the disclosure of the information or documents so disclosed to a foreign law enforcement agency.

(5) The authorised officer must not make the authorisation unless he or she is satisfied that:

(a) the disclosure is reasonably necessary for the enforcement of the criminal law of a foreign country; and

(b) the disclosure is appropriate in all the circumstances.

180B Authorisations for access to prospective information or documents-enforcement of the criminal law of a foreign country

Disclosure to the Australian Federal Police

(1) Sections 276, 277 and 278 of the Telecommunications Act 1997 do not prevent a disclosure of information or a document if the information or document is covered by an authorisation in force under subsection (2) of this section.

Prospective authorisation

(2) An authorised officer of the Australian Federal Police may authorise the disclosure of specified information or specified documents that come into existence during the period for which the authorisation is in force.

(3) The authorised officer must not make the authorisation unless:

(a) the Attorney‑General has authorised the making of the authorisation under the Mutual Assistance in Criminal Matters Act 1987; and

(b) the authorised officer is satisfied that the disclosure is reasonably necessary for the investigation of an offence against the law of a foreign country that:

(i) is punishable by imprisonment for 3 years or more, imprisonment for life or the death penalty; or

(ii) involves an act or omission that, if it had occurred in Australia, would have constituted a serious offence within the meaning of section 5D of the Telecommunications (Interception and Access) Act 1979; and

(c) the authorised officer is satisfied that the disclosure is appropriate in all the circumstances.

(4) An authorised officer of the Australian Federal Police must revoke the authorisation if he or she is satisfied that the disclosure is no longer required.

Note: Section 184 deals with notification of revocations.

(5) An authorisation under subsection (2):

(a) comes into force at the time the person from whom the disclosure is sought receives notification of the authorisation; and

(b) ceases to be in force at the time specified in the authorisation, which must not be more than 21 days after the day the authorisation is made, or that period as extended under subsection (6), unless it is revoked earlier.

Note: Section 184 deals with notification of authorisations.

Extension of prospective authorisation

(6) The period for which an authorisation under subsection (2) is in force may be extended once only, by an authorised officer of the Australian Federal Police, if the authorised officer is satisfied that the extension is:

(a) reasonably necessary for the investigation of an offence against the law of a foreign country that:

(i) is punishable by imprisonment for 3 years or more, imprisonment for life or the death penalty; or

(ii) involves an act or omission that, if it had occurred in Australia, would have constituted a serious offence within the meaning of section 5D of the Telecommunications (Interception and Access) Act 1979; and

(b) appropriate in all the circumstances.

(7) An extension under subsection (6) must not be for more than 21 days from the day of the extension.

Disclosure to a foreign law enforcement agency

(8) If specified information or specified documents are disclosed because of an authorisation given under subsection (2), an authorised officer of the Australian Federal Police may authorise the disclosure of the information or documents so disclosed to a foreign law enforcement agency if the authorised officer is satisfied that the disclosure is:

(a) reasonably necessary for the investigation of an offence against the law of a foreign country that:

(i) is punishable by imprisonment for 3 years or more, imprisonment for life or the death penalty; or

(ii) involves an act or omission that, if it had occurred in Australia, would have constituted a serious offence within the meaning of section 5D of the Telecommunications (Interception and Access) Act 1979; and

(b) appropriate in all the circumstances.

(9) An authorised officer must not make more than one authorisation a day under subsection (8).

180C Authorisations to disclose information or documents-enforcement of the criminal law of a foreign country

(1) If specified information or specified documents are disclosed because of an authorisation given under Division 4, other than because of an authorisation under section 178A (missing persons), an authorised officer of the Australian Federal Police may authorise the disclosure of the information or documents so disclosed to a foreign law enforcement agency.

(2) The authorised officer must not make the authorisation unless he or she is satisfied that:

(a) the disclosure is reasonably necessary for the enforcement of the criminal law of a foreign country; and

(b) the disclosure is appropriate in all the circumstances.

180D Authorisations to disclose information or documents-enforcement of the criminal law

(1) If specified information or specified documents are disclosed because of an authorisation given under this Division, an authorised officer of the Australian Federal Police may authorise the following:

(a) the disclosure of the information or documents to the Organisation or an enforcement agency;

(b) the use of the information or documents by the Australian Federal Police.

(2) The authorised officer must not make the authorisation unless he or she is satisfied that:

(a) in the case of a disclosure to the Organisation-the disclosure is reasonably necessary for the performance by the Organisation of its functions; and

(b) in the case of a disclosure to an enforcement agency-the disclosure is reasonably necessary:

(i) for the enforcement of the criminal law; or

(ii) for the enforcement of a law imposing a pecuniary penalty; or

(iii) for the protection of the public revenue; and

(c) in the case of a use by the Australian Federal Police-the use is reasonably necessary:

(i) for the enforcement of the criminal law; or

(ii) for the enforcement of a law imposing a pecuniary penalty; or

(iii) for the protection of the public revenue; and

(d) in any case-the disclosure or use is appropriate in all the circumstances.

180E Disclosing information etc. obtained to foreign country

(1) A person must not disclose information or a document in accordance with an authorisation under section 180A, 180B or 180C to a foreign country unless the disclosure is subject to the following conditions:

(a) that the information will only be used for the purposes for which the foreign country requested the information;

(b) that any document or other thing containing the information will be destroyed when it is no longer required for those purposes;

(c) in the case of information or a document disclosed under section 180B-any other condition determined, in writing, by the Attorney‑General.

(2) A determination made under paragraph (1)(c) is not a legislative instrument.

180F Authorised officers to consider privacy

Before making an authorisation under Division 4 or 4A in relation to the disclosure or use of information or documents, the authorised officer considering making the authorisation must have regard to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable, having regard to the following matters:

(a) the likely relevance and usefulness of the information or documents;

(b) the reason why the disclosure or use concerned is proposed to be authorised.

42 Paragraph 181(b)

Omit "or 4", substitute ", 4 or 4A".

43 Paragraph 182(1)(a)

After "Division 4", insert "or 4A".

44 After subsection 182(4)

Insert:

(4A) Paragraph (1)(b) does not apply to a disclosure or use of information or a document if the disclosure or use is permitted by section 180C or 180D.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4A) (see subsection 13.3(3) of the Criminal Code).

45 Subsection 182(5) (definition of non‑missing person information)

After "Division 4", insert "or 4A".

46 Paragraph 183(1)(a)

Omit "or 4", substitute ", 4 or 4A".

47 At the end of section 184

Add:

Authorised officers of the Australian Federal Police

(5) If an authorised officer of the Australian Federal Police makes an authorisation under subsection 180A(2) or 180B(2), or extends the period for which an authorisation is in force under subsection 180B(6), a relevant staff member of the Australian Federal Police must notify the person from whom the disclosure is sought.

(6) If, under subsection 180B(4), an authorised officer of the Australian Federal Police revokes an authorisation, a relevant staff member of the Australian Federal Police must notify the person who was notified of the authorisation.

48 Section 185

Before "The", insert "(1)".

49 At the end of section 185

Add:

(2) The Commissioner of Police must retain an authorisation made under Division 4A of Part 4‑1 by an authorised officer of the Australian Federal Police for the period of 3 years beginning on the day the authorisation is made.

50 After paragraph 186(1)(c)

Insert:

(ca) if the enforcement agency is the Australian Federal Police-the number of authorisations made under sections 180A, 180B, 180C and 180D by an authorised officer of the Australian Federal Police during that year; and

(cb) if the enforcement agency is the Australian Federal Police, and information or documents were disclosed, under an authorisation referred to in paragraph (ca), by an authorised officer of the Australian Federal Police during that year to one or more foreign countries:

(i) the name of each such country; and

(ii) the number of disclosures under such authorisations; and

50A Subsection 186(2)

After "subsection (1)", insert ", other than the information referred to in paragraph (1)(cb)".

51 Application of amendments made by this Part-authorisations

(1) The amendments made by this Part apply in relation to an authorisation made on or after the commencement of this item.

(2) To avoid doubt, an authorisation may be made under section 180C of the Telecommunications (Interception and Access) Act 1979 even if an authorisation given under Division 4 (as mentioned in that section) was given before the commencement of this item.

52 Application of amendments made by this Part-requests by foreign countries

The amendments made by this Part apply in relation to a request by a foreign country that is under consideration on or after the commencement of this item, whether the request was made before or after that commencement.

53 Saving of existing authorisations

(1) Despite the amendment of subsection 5AB(1) of the Telecommunications (Interception and Access) Act 1979 by this Part, any authorisation by the head of an enforcement agency that was in force under that subsection immediately before the commencement of this item continues in force on and after that commencement as if it were an authorisation made under that subsection as in force after that commencement.

(2) In this item:

Telecommunications Act 1997

54 After paragraph 313(3)(c)

Insert:

(ca) assisting the enforcement of the criminal laws in force in a foreign country;

55 After paragraph 313(4)(c)

Insert:

(ca) assisting the enforcement of the criminal laws in force in a foreign country;

56 Application of amendments made by items 54 and 55

(1) The amendment made by item 54 of this Schedule applies to help given by a carrier or carriage service provider on or after the commencement of this item.

(2) The amendment made by item 55 of this Schedule applies to help given by a carriage service intermediary on or after the commencement of this item.

Criminal Code Act 1995

1 Subsection 476.1(1) of the Criminal Code (definition of Commonwealth computer)

Repeal the definition.

2 Paragraph 477.1(1)(b) of the Criminal Code

Repeal the paragraph.

3 Subsection 477.1(2) of the Criminal Code

Repeal the subsection.

4 Subsections 477.1(4) and (5) of the Criminal Code

Repeal the subsections.

5 Subparagraph 477.2(1)(c)(ii) of the Criminal Code

Omit "data; and", substitute "data.".

6 Paragraph 477.2(1)(d) of the Criminal Code

Repeal the paragraph.

7 Subsection 477.2(2) of the Criminal Code

Repeal the subsection.

8 Paragraph 477.3(1)(b) of the Criminal Code

Omit "unauthorised; and", substitute "unauthorised.".

9 Paragraph 477.3(1)(c) of the Criminal Code

Repeal the paragraph.

10 Subsection 477.3(2) of the Criminal Code

Repeal the subsection.

11 Paragraph 478.1(1)(c) of the Criminal Code

Omit "unauthorised; and", substitute "unauthorised.".

12 Paragraph 478.1(1)(d) of the Criminal Code

Repeal the paragraph.

13 Subsection 478.1(2) of the Criminal Code

Repeal the subsection.

14 Subsection 478.2(1) of the Criminal Code

Omit "(1)".

15 Paragraph 478.2(1)(c) of the Criminal Code

Omit "unauthorised; and", substitute "unauthorised.".

16 Paragraph 478.2(1)(d) of the Criminal Code

Repeal the paragraph.

17 Subsection 478.2(2) of the Criminal Code

Repeal the subsection.

18 Application of amendments

The amendments made by this Schedule apply to acts and omissions that take place after the day on which this Schedule commences.

Telecommunications (Interception and Access) Act 1979

1 Subsection 171(3)

Repeal the subsection, substitute:

(3) Division 6 creates offences for certain disclosures and uses of information and documents.

2 Division 6 of Part 4‑1 (heading)

Repeal the heading, substitute:

3 Before section 182

Insert:

181A Disclosure/use offences: authorisations under Division 3

Disclosures

(1) A person commits an offence if:

(a) the person discloses information; and

(b) the information is about any of the following:

(i) whether an authorisation under Division 3 has been, or is being, sought;

(ii) the making of such an authorisation;

(iii) the existence or non‑existence of such an authorisation;

(iv) the revocation of such an authorisation;

(v) the notification of such a revocation.

Penalty: Imprisonment for 2 years.

(2) A person commits an offence if:

(a) the person discloses a document; and

(b) the document consists (wholly or partly) of any of the following:

(i) an authorisation under Division 3;

(ii) the revocation of such an authorisation;

(iii) the notification of such a revocation.

Penalty: Imprisonment for 2 years.

(3) Paragraphs (1)(a) and (2)(a) do not apply to a disclosure of information or a document if:

(a) the disclosure is for the purposes of the authorisation, revocation or notification concerned; or

(b) the disclosure is reasonably necessary:

(i) to enable the Organisation to perform its functions; or

(ii) to enforce the criminal law; or

(iii) to enforce a law imposing a pecuniary penalty; or

(iv) to protect the public revenue.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

Uses

(4) A person commits an offence if:

(a) the person uses information; and

(b) the information is about any of the following:

(i) whether an authorisation under Division 3 has been, or is being, sought;

(ii) the making of such an authorisation;

(iii) the existence or non‑existence of such an authorisation;

(iv) the revocation of such an authorisation;

(v) the notification of such a revocation.

Penalty: Imprisonment for 2 years.

(5) A person commits an offence if:

(a) the person uses a document; and

(b) the document consists (wholly or partly) of any of the following:

(i) an authorisation under Division 3;

(ii) the revocation of such an authorisation;

(iii) the notification of such a revocation.

Penalty: Imprisonment for 2 years.

(6) Paragraphs (4)(a) and (5)(a) do not apply to a use of information or a document if:

(a) the use is for the purposes of the authorisation, revocation or notification concerned; or

(b) the use is reasonably necessary:

(i) to enable the Organisation to perform its functions; or

(ii) to enforce the criminal law; or

(iii) to enforce a law imposing a pecuniary penalty; or

(iv) to protect the public revenue.

Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

181B Disclosure/use offences: certain authorisations under Division 4

Disclosures

(1) A person commits an offence if:

(a) the person discloses information; and

(b) the information is about any of the following:

(i) whether an authorisation under Division 4 (other than under section 178A) has been, or is being, sought;

(ii) the making of such an authorisation;

(iii) the existence or non‑existence of such an authorisation;

(iv) the revocation of such an authorisation;

(v) the notification of such a revocation.

Penalty: Imprisonment for 2 years.

(2) A person commits an offence if:

(a) the person discloses a document; and

(b) the document consists (wholly or partly) of any of the following:

(i) an authorisation under Division 4 (other than under section 178A);

(ii) the revocation of such an authorisation;

(iii) the notification of such a revocation.

Penalty: Imprisonment for 2 years.

(3) Paragraphs (1)(a) and (2)(a) do not apply to a disclosure of information or a document if:

(a) the disclosure is for the purposes of the authorisation, revocation or notification concerned; or

(b) the disclosure is reasonably necessary:

(i) to enable the Organisation to perform its functions; or

(ii) to enforce the criminal law; or

(iii) to enforce a law imposing a pecuniary penalty; or

(iv) to protect the public revenue.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

Uses

(4) A person commits an offence if:

(a) the person uses information; and

(b) the information is about any of the following:

(i) whether an authorisation under Division 4 (other than under section 178A) has been, or is being, sought;

(ii) the making of such an authorisation;

(iii) the existence or non‑existence of such an authorisation;

(iv) the revocation of such an authorisation;

(v) the notification of such a revocation.

Penalty: Imprisonment for 2 years.

(5) A person commits an offence if:

(a) the person uses a document; and

(b) the document consists (wholly or partly) of any of the following:

(i) an authorisation under Division 4 (other than under section 178A);

(ii) the revocation of such an authorisation;

(iii) the notification of such a revocation.

Penalty: Imprisonment for 2 years.

(6) Paragraphs (4)(a) and (5)(a) do not apply to a use of information or a document if:

(a) the use is for the purposes of the authorisation, revocation or notification concerned; or

(b) the use is reasonably necessary:

(i) to enforce the criminal law; or

(ii) to enforce a law imposing a pecuniary penalty; or

(iii) to protect the public revenue.

Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

Note: The heading to section 182 is altered by adding at the end ": disclosures under Division 4 ".

4 Application

Sections 181A and 181B of the Telecommunications (Interception and Access) Act 1979 apply in relation to a disclosure, or use, of information or a document on or after the commencement of this Schedule whether the information or document came into existence before, on or after that commencement.

Telecommunications (Interception and Access) Act 1979

1 At the end of section 105

Add:

(5) Section 15.1 (extended geographical jurisdiction-category A) of the Criminal Code applies to an offence against subsection 7(1) or section 63.

3 Subsection 180(4)

Omit all the words after "reasonably necessary", substitute:

for the investigation of:

(a) a serious offence; or

(b) an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment for at least 3 years.

4 Application of amendments made by items 1 and 3

(1) The amendment made by item 1 of this Schedule applies to acts or things done on or after the day this Schedule commences.

(2) The amendment made by item 3 of this Schedule applies in relation to an authorisation made on or after the day this Schedule commences.

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Cybercrime Legislation Amendment Act 2012

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Cybercrime Legislation Amendment Act 2012 No. 120, 2012 An Act to implement the Council of Europe Convention on Cybercrime, and for other purposes [ Assented to 12 September 2012] The Parliament of Australia enacts: This Act may be cited as the Cybercrime Legislation Amendment Act 2012.

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Transcript
Cyber War
SARAH FERGUSON, PRESENTER: Hello and welcome to Four Corners. As you watch this program you may be multi screening with your mobile, tablet or laptop - and if not you'll almost certainly have one of those devices within reach... Australians are famous for embracing technology, we own more than 70 million internet connected devices. And every one of them is vulnerable to being hacked. Tonight we'll take you into the world of computer hacking to show you how weak our cyber defences are against attacks from criminals on our personal information and at government level international sabotage. Linton Besser's investigation looks at the secretive operations of the government's cyber warfare fightback... but his story begins at the hackers' version of the olympic games...

KATIE MOUSSOURIS, CYBER SECURITY RESEARCHER: It's the hottest that it could be in the United States this week, in Vegas. It's a huge party in the desert. Literally this town, Vegas, is taken over for pretty much the entire week by hackers.

PROFESSOR DAVID BRUMLEY, DIRECTOR CYLAB SECURITY AND PRIVACY INSTITUTE: I think cyber security is a bit like, you know, what we call here in the US the Wild West. It's really a bunch of independent gun-slingers.

LINTON BESSER, REPORTER: At the height of summer ... tens of thousands of the world's top hackers have converged on Las Vegas.

GRAND CYBER CHALLENGE ANNOUNCER: What is the Cyber Grand Challenge? It is the world's first all machine hacking tournament.

LINTON BESSER: These hackers are here to learn new ways to attack computer networks ... in order to protect them.

KATIE MOUSSOURIS: Hacking is a crime in most countries um however there are- there are folks who call themselves ah, ethical hackers or white hat hackers etc and these are folks I- I like to describe as good people who know how to do bad things um, so you- you know, you wouldn't consider a ah, locksmith to be a burglar, but a locksmith knows how to pick locks um, hackers who come to these conferences and learn how to pick digital locks are essentially the same, same idea.

DEF CON VOLUNTEER: Track one on your left, track two on your right, track three all the way down to the end of the hall.

LINTON BESSER: I'm here at one of the world's biggest hacking conferences in Las Vegas. Everyone has told me to make sure my Bluetooth and Wifi are turned off ... because phones here are routinely hacked. I'm going to go and check it out.

DEF CON ANNOUNCER: The prize today is $15 per judge...

LINTON BESSER: In a world of internet-connected devices...almost everything is vulnerable to hacking ... from drones ... to fridges ... even cars.

CAR HACKING VOLUNTEER: They found you could wirelessly get into a vehicle. It took them a year and a half to be able to do that research and be able to figure out that they could get in that car...

LINTON BESSER: Despite the warnings ... a few people at the conference used wifi to go online ...their logins and passwords were plucked from mid-air and put on public display. They call it the Wall of Sheep ... because most of us have been blindly led to trust technology.

DAVID BRUMLEY: I think, I mean obviously technology is penetrating more and more of our lives. My computer is of course something I want to protect, but my car is also running a computer. So we look at cyber security from the traditional my laptop level, to the personal level - I want to protect my memories, to really the safety critical, such as cars, vehicles and airplanes. And it's just a growing domain. We should all be thinking about it.

GRAND CYBER CHALLENGE ANNOUNCER: I'd like to introduce everyone, to a special part of the Grand Cyber Challenge...

LINTON BESSER: There are so many hackers that have poured into Las Vegas for the DEF CON conference ... but there's only a few at the cutting edge.

DAVID BRUMLEY: So here in Vegas we have, you know, over 10,000 people at DEFCON. But if you really want to know who the elite are, you have to go into a backroom in DEFCON and there you're going to find, you know, about a dozen teams playing against each other, no more than a hundred people. And these are really the world's cyber elite. So many people think, you know, there's this many hackers in the world, but really there's this many who are really making a difference day to day.

LINTON BESSER: Teams of the best hackers from around the world are pitting their skills against each other.

LUKE HARRISON, AUSTRALIAN HACKER: The aim is to break into other people's services in order to capture the flag. We also get to patch ours, so to fix the vulnerabilities in ours while also trying to hack into theirs.

LINTON BESSER: They're all trying crack the codes that drive each other's computers.

DAVID BRUMLEY: I think like in any field if you're not following the trends, if you're not looking to the future, you're going to be behind. And if in cyber you're putting your head in the sand, you're going to be a victim. People are going to come after you.

LINTON BESSER: Challenges like these draw out skills that are highly sought-after ... including by the government.

KATIE MOUSSOURIS: The US government you know, basically said we're in you know just like everyone else on the internet we're being attacked, we are- our methods of securing everything have not been adequate, we need to reach out to the- the private industry and find out what industry best practices are working for them, and actually create more programs that can rapidly bring in the best and the brightest.

ASH CARTER, UNITED STATES SECRETARY OF DEFENCE: It's great to be here this afternoon with a few of the dedicated people who defend our networks, everyday, as well as some of the technologists and hackers who have contributed to our defence mission by taking part in Hack the Pentagon.

LINTON BESSER: These are the winners of a Department of Defence competition ... their challenge was to hack the US military's headquarters at the Pentagon.

KATIE MOUSSOURIS: That was the very first time that the United States government allowed people to hack them legally and also ah, paid money to them, the Secretary of Defence congratulated these hackers, handed them challenge coins. Basically wanted to talk to them because he's- he's in a position where he's realised that we can't actually recruit through the normal methods anymore. We have to reach out to this population and we have to make it something where they are welcome in places like the Pentagon.

GENERAL MICHAEL HAYDEN, FORMER HEAD NSA / CIA: Let me be very, very candid, alright? I was a Director of the National Security Agency here in America, the American equivalent o-of ASD, right? The last 15 years have been the golden age of electronic surveillance.

LINTON BESSER: Michael Hayden has been the head of both the Central Intelligence Agency and the National Security Agency in the United States. He staffed the US Government's elite cyber unit from the ranks of the hacking community.

MICHAEL HAYDEN: The most sophisticated office at the National Security Agency is TAO, Tailored Access Operations. It's our, it's our hackers, it's our cyber espionage folks, alright? We began to rapidly expand that while I was director, about 2002, alright? [02:48:46] We were bringing in a whole bunch of very young people and we were taking those young people because they had the talent, and we were putting on- putting them on our most sensitive operational activities.

LINTON BESSER: In his youth, Kevin Mitnick was one of the United States' most infamous hackers. He spent years hacking major corporations including Nokia and Motorola ... until the FBI caught up with him.

KEVIN MITNICK, HACKER: Eventually I pushed the envelope so far that I ended up in federal prison for five years and in fact one year was in solitary confinement because a federal prosecutor told a judge that not only do they have to hold me in prison, because I'm such a danger to national security, but they have to keep me away from the phone and the judge was like a little bit confused, like why? And the prosecutor went on to say that if we let Mr Mitnick near a phone he could, whistle into the phone and launch an ICBM.

LINTON BESSER: Today Kevin Mitnick is a cyber security adviser to top companies. We met him in Melbourne. He says we don't realise how vulnerable we all are. He's about to demonstrate just how easy it is to hack into my bank account. In this alleyway he's just set up a fake wifi network.

KEVIN MITNICK: So Linton's sitting over there think he's really connecting to Telstra air C3. But what he doesn't know is that he's connecting to my fake access point. And what we're gonna do is we're going to take over his computer.

LINTON BESSER: As soon as I logged into it ... he was able to record all of my keystrokes -including my banking password.

KEVIN MITNICK: And then what I'm gonna be able to do is steal his passwords, and I'm gonna be able to inject fake updates, so when he installs them we gain full control of his computer system. And he'll never know the better. Back when I started at hacking you didn't have the tools that you have today. Basically you had to develop your own exploits, systems were not as secure, the reason being there was a much lower level of security awareness. But now we fast forward to today and you have tonnes of tools that a high school- a junior high schooler could download and use to exploit systems.

LINTON BESSER: A similar wifi scam was behind a fraud shown on this CCTV footage from inside a Westpac branch in Sydney. It was recorded in December 2014 ... and shows two men setting up a bank account. In fact, they're members of a criminal syndicate ... and the account was opened with a stolen identity.

ARTHUR KATSOGIANNIS, NSW POLICE FRAUD & CYBERCRIME COMMANDER: So that's both of them there, actually producing these false drivers license, which is pretty good high quality

LINTON BESSER: The syndicate they're working for had obtained people's personal details after they hacked their phones through a free wifi network.

ARTHUR KATSOGIANNIS: They were able to convince the bank they were the actual legitimate account holder

LINTON BESSER: NSW Police Detective Superintendent Arthur Katsogiannis oversaw the strike force that busted open the crime ring.

ARTHUR KATSOGIANNIS: That's a good shot of them, shows you how calm they are. Some of the techniques and methodology used by this particular criminal syndicate are the use of um malicious software which is ah placed on a person's computer to take their personal details and account details. They then port the individual's phone without the victim's knowing to bypass the two factor verification and then they recruit mules, most of them are international students or foreign, who go to the banks, open up fraudulent bank accounts there, take the identity of the victim, then withdraw all their money over a period of days. It's as simple as that.

LINTON BESSER: The police have arrested almost 50 people in connection with the crime ... after they stole more than $6 million.

ARTHUR KATSOGIANNIS: Cybercrime poses one of the greatest challenges to law enforcement this century. No longer do we have that individual who carries a firearm and wears a balaclava to disguise their identity. It's a lot more profitable and a lot easier for someone to pick up a laptop, sit in the comfort of their lounge room behind the anonymity of the internet and take the bank for millions of dollars.

ALASTAIR MACGIBBON, SPECIAL ADVISOR TO THE PRIME MINISTER, CYBER SECURITY: Criminals recognised cyber was a great frontier at the very early 2000s, so they've been going at this for 13 or 14 years. What they've realised with cyber is the cost of entry is very low, the likelihood of getting caught is still low and they only need to steal a small amount from lots of people to aggregate a large amount of money.

MICHAEL HAYDEN: Here's what's happened over the past 10 or 15 years. All of us, myself included, businesses, governments, we've taken things that we at least would keep in a desk drawer or a wallet, sometimes even in a safe, and we've decided to put them in our phones or to put them in something called the cloud. And I think we did it indifferent to the dangers we were creating for ourselves by putting our precious information, where it was personal or governmental, in locations that were not nearly as safe as they were when we kept them in the physical domain.

LINTON BESSER: What many computer users don't know is that any device linked to the internet is potentially vulnerable. A few weeks ago Four Corners located a website that identified thousands of private hard-drives that are connected to the web. About 400 of these are owned by businesses and individuals in Australia. But the vast majority of them are not secure and are sitting open on the internet. Here ... I'm looking at the files owned by one man in north-west Sydney ...I can see all of the files in his hard-drive ... from insurance documents ... to information about his business clients. Hullo Matthew, it's Linton Besser from Four Corners, how are you? We contacted the owner of the hard-drive, Matthew Edwards ... who is a telecommunications engineer. Ok, we'll jump in the car and see you shortly. Cheers. So this is the home office here?

MATTHEW EDWARDS, BUSINESS OWNER: Yes, absolutely.

LINTON BESSER: Matthew Edwards was disturbed by what we told him about the hard-drive he was using to store his information. So when we contacted you Matthew, what went through your mind?

MATTHEW EDWARDS: I wasn't very happy. I was unbelieveable, initially I thought, I was thinking this has gotta be some sort of a scam.

LINTON BESSER: What kind of sensitive information was stored on here ...

MATTHEW EDWARDS: My personal data, as I said it's my, initially it's all the quotations, I've just been doing and I'm starting a new business, I didn't want that out

TIM WELLSMORE, FORMER MANAGER, AUSTRALIAN CYBER SECURITY CENTRE 2013 - 2016: It shows how simple it can be to enable the cyber security threat and by putting infrastructure or computers in your home without giving any thought to the cyber security threat.

LINTON BESSER: And they've been horrified when we've called them, I mean they've had no idea.

TIM WELLSMORE: Yeah unfortunately it's the power of what the internet can enable is great for business and great for enterprise, unfortunately it's equally as good for the bad guys. Ok so we've got the attacker one. He came through here. This is obviously the first campaign, came through and created an incident.

LINTON BESSER: Former Australian government cyber security official Tim Wellsmore, says it's not just individuals whose secrets are vulnerable to others. In fact governments and businesses in Australia are attacked and compromised all the time. Hacking happens so often there is a marketplace in the dark corners of the internet where access to hacked computer servers is bought and sold.

TIM WELLSMORE: We also had another victim, and the first compromise occurred on this system. You could buy one of those compromised servers for anywhere between five to ten to twenty dollars depending on on where it was and what type of system it was.

LINTON BESSER: I mean that's just staggering isn't it?

TIM WELLSMORE: It's a market driven economy unfortunately. To me it shows, it's starting to show that the threat really is everywhere. That the price of of a compromised system of five dollars probably just shows you exactly how far down the road we are of the cyber security story.

LINTON BESSER: This year security firm Kaspersky released a report which said a huge volume of computer servers around the world had been hacked ... their logins and passwords put up for sale online. Kaspersky then published a separate list identifying 170,000 computers which may also be suspect, including thousands in Australia owned by companies, local councils, law firms and schools. Computers like these can be used to launch what's called 'denial of service' attacks ... where a website is flooded by artificial traffic, much like jamming a switchboard.

TIM WELLSMORE: There's a there's a lot of computers for sale on the dark web that have actually been hacked and compromised and are sitting there waiting to be used for attacks. That marketplace exists and there's quite a strong marketplace because for these attacks to occur, they don't want to use their own computers to launch them, they want to use somebody else's that doesn't look like an attacker and unfortunately there are there are thousands of these servers or computers out there for sale um that can be used for these attacks.

DAVID KALISCH, HEAD STATISTICIAN ABS: I would like to firstly apologise again to the inconvenience that has been caused for many Australians.

LINTON BESSER: Australian institutions have shown themselves to be woefully unprepared for even basic cyber security threats.The recent Census debacle was a case in point.

DAVID KALISCH: The ABS took the early prudent precaution of taking the system down around 7:45pm last night to be assured of the integrity of the data.

LINTON BESSER: Facing a low-level denial of service attack ... by an unidentified attacker ... the ABS panicked and took the Census off-line ...

ALASTAIR MACGIBBON: That attack the denial of service attack easily predictable and certainly was not of a scale or sophistication that should have caused any significant problems. That combined with a series of events, at least as we know them at the moment, that end on end led to the ABS taking the site down, should have been predicted and prevented.

LINTON BESSER: Alastair MacGibbon is the Prime Minister's cyber security adviser. His job is to roll out an ambitious cyber security strategy designed to protect Australia from the growing threats online.

ALASTAIR MACGIBBON: The Commonwealth Government takes these matters very seriously. The launch of the Cyber Security Strategy in April is the start of what I would say is the next wave of cyber security capabilities in this country. A step change.

MALCOLM TURNBULL, AUSTRALIAN PRIME MINISTER: Well good morning and thank you very much Jennifer. My friends the internet is the most transformative piece of infrastructure every created...

LINTON BESSER: When the Prime Minister launched the strategy in April... he made an extraordinary admission.

MALCOLM TURNBULL: The Bureau of Meteorology suffered a significant cyber intrusion which was first discovered early last year ...'

LINTON BESSER: It was the first time there was official acknowledgement that a critical Australian Government agency had been penetrated by a sophisticated cyber attack.The government didn't say it publicly, but intelligence sources have confirmed to Four Corners that China was behind the attack ... something Beijing continues to deny.Four Corners has been told that China's true targets may have been the Australian Geospatial Intelligence Organisation ... which provides satellite imagery for sensitive defence operations... and a high-tech radar system operated by the Air Force.

ALASTAIR MACGIBBON: I would say to you that people who compromise systems will usually try to find a way to move laterally through it. If that means through a third party that's what they'll try to do.

LINTON BESSER: And is that the case we saw with the Bureau?

ALASTAIR MACGIBBON: I don't know. I don't know what the intention of the people that compromised the system was

TIM WELLSMORE: There is a lot of assets in the Australian government that would be of interest to China and other Nation State actors specifically why the why the Bureau of Meteorology or as you as you speculated the AGO was actually ah was a target, there's obviously some sensitive intelligence information within some of these organisations that would obviously be to give advantage to other to other nations to understand those.

MICHAEL HAYDEN: Australia and the United States and other friendly similar nations around the world ah need to protect their data, because what you just described to my mind fits the definition of legitimate state espionage. And look, we have every right to complain about espionage. We criminalise it when our own citizens do it, of course, alright? But it is what adult nation states do to one another.

LINTON BESSER: It was the first time there was official acknowledgement that a critical Australian Government agency had been penetrated by a sophisticated cyber attack.The government didn't say it publicly, but intelligence sources have confirmed to Four Corners that China was behind the attack ... something Beijing continues to deny. Four Corners has been told that China's true targets may have been the Australian Geospatial Intelligence Organisation ... which provides satellite imagery for sensitive defence operations... and a high-tech radar system operated by the Air Force.

ALASTAIR MACGIBBON: It would seem appropriate the nation states would be interested in the defence science area and of course the defence science area is aware of needing to keep itself secure. The Australian Government knows it needs to protect these things, it knows it can't ever be static in how it does those things and will continue to strive to stay ahead of whatever the threat environment is.

LINTON BESSER: It's here at the Australian Signals Directorate ... that the work of protecting vital national assets is done. But what really troubles people like Alastair MacGibbon ... is when other countries use their powers against individuals and businesses.

ALASTAIR MACGIBBON: We believe in a free and open internet. And that means that you don't use those types of, in a way calling it weaponised capability against other people's intellectual property or to their economic wellbeing.

LINTON BESSER: But this is something that China has been doing over and again against businesses in Australia for some time isn't it?

ALASTAIR MACGIBBON: It's not useful for us to talk about any particular nation states.

LINTON BESSER: Newsat was once Australia's biggest specialist satellite company until it was sold off last year.

LINTON BESSER: Newsat was once Australia's biggest specialist satellite company until it was sold off last year. It carried sensitive communications for resources companies, as well as the military. But its jewel was a 5-tonne state of the art satellite called Jabiru 1 which it promised it launch over Asia. The company's former IT manager Daryl Peter said the Lockheed Martin-designed satellite made it a target for Chinese spies.

DARYL PETER, IT Manager NewSat 2012 - 2014: Their ambitious plan to build a satellite and of course the confidential design plans for it make it a very attractive target. There are certain countries where they may not have those available so getting those confidential designs would be very beneficial for them.

LINTON BESSER: In a meeting called by the Australian Signals Directorate, Daryl Peter was told the company had been seriously infiltrated by foreign hackers.

DARYL PETER: They'd been inside our network for a long period, so maybe about two years. And the way it was described to us was they're so deep inside out network it's like we had someone sitting over our shoulder for anything we did. Newsat had been hacked. And not just by teenagers in the basement or anything like that. Whoever was hacking us was very well-funded, very professional, very serious hackers.

LINTON BESSER: Newsat's former chief financial officer Michael Hewins said the company's IT staff were told Newsat's computers had been so compromised they would not be allowed to launch the satellite until major changes were made.

MICHAEL HEWINS, CHIEF FINANCIAL OFFICER NEWSAT 2011 - 2014: They were told something of the order of, I'm not sure if it's a direct quote, but that we were a joke, that we hadn't taken seriously what we'd been told and that our network was as far as they could see the most corrupted they'd seen. Period.

DARYL PETER: They actually said to us that we were the worst. Which was, given the organisation it is, it was very scary for me of course because all the government organisations that of course sometimes do get hacked, for a small company like Newsat to be the worst they'd seen, it made me feel like fixing that would be quite an issue.

MICHAEL HEWINS: The process was pretty nerve wracking what was going on because every day was something you were finding out. It's one of those things, you know, you can't see the problem and suddenly you open the door and you go, oh my God, it's like Pandora's Box.

LINTON BESSER: As Daryl Peter investigated - with the assistance of Australia's cyber spy agency - it became clear to him who was behind the attack.

DARYL PETER: With the more specialised security tools that we had we were able to determine the location of the attacks and the majority of them were coming from China.

LINTON BESSER: And what did ASD say about all of that?

DARYL PETER: They thought that of course it was all very interesting but it wasn't too surprising.

LINTON BESSER: Why not surprising?

DARYL PETER: China tend to target more government organisations or organisations in that space there's been a number of publicised hacks by China.

MICHAEL HAYDEN: Where I'm really concerned and where I think Australians should be really concerned is the Chinese not attacking the Australian government or the American government; our governments should be able to defend themselves. Again, not shame on China, shame on us if they steal our secrets. It's a really unfair fight though if a nation state like China attacks private enterprise in Australia again not for legitimate state espionage purposes, but for industrial and commercial advantage.

DARYL PETER: Given we were up against China, state-sponsored, a lot of money behind them and resources, and we were only a very small IT team, it certainly wasn't a fair fight for us, I mean we didn't have any specialised security skills

LINTON BESSER: One of the cyber world's foremost experts, Washington-based Dmitri Alperovitch, says Australia has not done enough to warn industry about online threats.

DMITRI ALPEROVITCH, COMPUTER SECURITY INDUSTRY EXECUTIVE: The reality is that the Australian government is very well aware of these activities but they have not really come out and publicly acknowledged it, they have not done a good job in my opinion educating the public about this threat and ah, as a result there's a sense of complacency often times amongst industry because they don't appreciate that even in Australia you can be targeted and China happens to be your biggest trading partner, there's a lot of reasons why wo- they would be hacking into your industry, to try to steal intellectual property, try to get a advantage in trade negotiations and it's happening very very often and ah, very little is being done about it.

ALASTAIR MACGIBBON: You must remember it was only in April this year that the Prime Minister announced the compromises of the Bureau of Meteorology and of the Parliament House network. They are pretty remarkably big steps forward in what was otherwise a very very closed community. You have to give us some time as we work through what can be said, how it can be said to increase the level of engagement.

LINTON BESSER: In April Dmitri Alperovitch's firm got a call from the US Democratic Party ... concerned their computer networks may have been hacked. His staff found something alarming.

DMITRI ALPEROVITCH: He said basically take a look at this, this is very interesting. I starting looking at the evidence and realised right away that there's complete certainty in what we're seeing. We found ah a couple of big whales here and ah, it's a, actors that we affiliate with the Russian Intelligence Services and ah, one of them specifically with the GRU, the Military Intelligence Agency of Russia.

LINTON BESSER: What they discovered was a spying campaign against a major US political party. The last time there was a major bugging operation that targeted the US Democrats was in 1972, when the Watergate building behind me was broken into. Now in 2016 the Democrats have been infiltrated again.

HILLARY CLINTON, DEMOCRATIC NOMINEE: The Russians and according to the reporting who did this hacking were, it's most likely in the employment of the Russian government

JUANITA PHILLIPS, ABC NEWSREADER: The Democrats are in disarray after a damaging email leak

LINTON BESSER: Three months after the hack was discovered ... embarrassing internal emails from within the US Democrats turned up on Wikileaks and led to the resignation of two senior party officials.

DEBBIE WESSERMAN SCHULTZ, SENIOR DEMOCRAT OFFICIAL: Good morning Florida, alright everybody now settle down.

MICHAEL HAYDEN: If this were done by the Russian security services, and I think there's a body of evidence that that's probably true, I'm not so sure that the inner workings of a powerful American political party is an illegitimate target for Russian espionage, alright? So let me just make that very clear. Now, what really makes this interesting is that it appears the Russians didn't stop at espionage. They've taken the information, and here's a phrase I would like to share with you, they've weaponised the data made it public through WikiLeaks, in order to do something with the American political process. That's really interesting. That's really new.

LINTON BESSER: It is the United States however - not Russia - that's been blamed for the most destructive cyber weapon to have ever been deployed. Stuxnet was a highly dangerous piece of code launched a decade ago against Iran's nuclear enrichment program. By secretly causing the centrifuges at the Natanz facility to spin out of control... hundreds were destroyed before their operators knew anything was wrong.

KEVIN MITNICK: Well, well Stuxnet was a piece of malicious code ah, allegedly developed by the United States in co- in cooperation with Israel. A piece of- of government malware that was targeting the Iranian centrifuges. The impact was damage, physical damage from that attack.

LINTON BESSER: Stuxnet marked the beginning of the cyber wars of the future.

JILL SLAY, DIRECTOR AUSTRALIAN CENTRE FOR CYBER SECURITY: Some of the literature claims this is the fir- first real documented evidence of cyber warfare. People will claim that was cyber warfare. So once you have an example um it can be replicated. Other people will copy it.

MICHAEL HAYDEN: A nation state, had just used a weapon comprised of ones and zeros during a time of peace to destroy what another nation could only describe as critical infrastructure. Now, even I with my background looking upon th-the destruction as an unalloyed good, even I recognise that's a really big deal. That, I've used the phrase in the past, um that's a legion crossing the Rubicon. Now th-that's a legion on the other side of the river now. That's the first time that's ever happened in human history, and our species doesn't have a history of putting such weapons back into the sheath after they've been used once.

LINTON BESSER: Just for the record General Hayden, was Stuxnet an operation of the US Government?

MICHAEL HAYDEN: What I say to those kinds of questions is, given my background, it would be irresponsible of somebody with my background to even speculate as to who may have been up to that.

LINTON BESSER: Cyber weapons like Stuxnet rely on software flaws or vulnerabilities that hackers use to get into sensitive systems. They're known, in the jargon of the hacking world, as zero day exploits.

KEVIN MITNICK: A zero day is a vulnerability that has been identified ah, that nobody knows about, right. Maybe another researcher could have stumbled across the same security flaw, but a zero day is something that hasn't been reported to the manufacturer be it, Microsoft, Apple, Cisco or any of the major manufacturers out there and then it allows the attacker to continually leverage that zero day to compromise systems.

TIM WELLSMORE: A zero-day is one of those um vulnerabilities that have been discovered but haven't been haven't been disclosed to the public or to the software developer. So therefore it can be used in a weaponised sense to actually then to be used to attack that system and and gain a foothold on that system. Zero-days um are common place in in this type of industry and and they're obviously um quite are valuable assets.

LINTON BESSER: Incredibly ... there are people who buy and sell zero-day exploits to companies and governments across the world. The trade in software vulnerabilities is actually a pretty murky marketplace with many of the transactions happening underground.Some say it's the arms race of the 21st Century but it's one where no-one really knows who's buying these exploits and what they're buying them for.

TIM WELLSMORE: I've seen some prices on the internet which are quite significant. You know you can pay sometimes in the hundreds of thousands of dollars, over a million dollars. I don't know if people actually pay those prices, but I've certainly seen them o-seen them on the internet and on the dark net, um so obviously if if it's a market demand and and that's the price they're putting on them somebody must be paying for them.

LINTON BESSER: This company Zerodium publishes its price list for zero-day exploits online ...Those which allow you to hack into an Apple iOS system - used by iPhones - are worth half-a-million dollars.

KEVIN MITNICK: Basically what a zero day broker does is when researchers find vulnerabilities in systems that haven't been reported what they do is they broker a deal between the individual that found it and a party, usually a government agency that need- that wants to purchase it.

LINTON BESSER: High-profile hacker Kevin Mitnick is one of these brokers but he doesn't want to talk about it.

LINTON BESSER: I noticed on your website you said you sell them to countries and corporations.

KEVIN MITNICK: I can't discuss it sorry.

LINTON BESSER: How can you be certain you know who you're selling them to?

KEVIN MITNICK: I can't discuss the program.

LINTON BESSER: Can you sit here today and say you're 100 per cent confident that nothing you have sold has gone into the wrong hands?

KEVIN MITNICK: I could say I'm a 100 per cent confident that I can't discuss the program with you.

MACOLM TURNBULL: Now while cyber security measures sit at the forefront of our response to cyber threats, defensive measures may not always be adequate.

LINTON BESSER: It was only a few months ago that the public was told - for the first time - that Australia was in the business of cyber warfare.

MACOLM TURNBULL: An offensive cyber capability, housed in the Australian Signals Directorate, provides another option for Government to respond.

LINTON BESSER: This offensive cyber capability includes developing zero day exploits to be used against overseas targets by Australia's electronic spy agency.

ALASTAIR MACGIBBON: In terms of offensive capabilities, they would be very very specific and very very tailored activities. We're not talking mass vulnerability that will infect all of us and that the Australian government sits on. That would be improper, isn't done and nor should it be done.

DMITRI ALPEROVITCH: Just like any country, um ah, any advanced country we have to assume that um, they're developing capabilities in order to both defend themselves and take offensive actions should it be needed in cyberspace. Really most modern countries now are treating cyberspace as another military domain in addition to land, air and sea.

CYBER TRAINER: OK, let's start looking at these targets, what have we got?

RED TEAM ATTACKER: Two targets, the water tower and the power station.

LINTON BESSER: To prepare for the cyber domain ... this is where Australia's 21st century soldiers train... a secure facility at the Australian Defence Force Academy in Canberra.

RED TEAM ATTACKER: Initiating scan...scan complete, chopping across the database.

CYBER TRAINER: So we've got some options on that first host, let's start there, Pete that first host on the perimeter, OK, let's try and get into that, ok so once we've got this foothold, I want you to do a scan on the DMZ for the pivot, so let's start that scan again

RED TEAM ATTACKER: Initiating scan

CYBER TRAINER: Let's get into it

LINTON BESSER: Two rival teams are competing ... one's on attack ... trying to turn off the power across this imaginary city ...The other team is trying to defend the city.

RED TEAM ATTACKER: Target one is offline

CYBER TRAINER: Good job, keep watching it ok exploit...ok, take out the power grid...Ok Red Team power is going down, what I want you to look at now, do as much damage as you can, we probably don't have very long until we get kicked out...ok we're starting to lose this one.

JILL SLAY: We're teaching them how to defend um critical infrastructure networks and we actually teach them what the bad guys might do in offensive warfare against us so that when they go to work they will be able to recognise an attack and and to do something about it.

RED TEAM ATTACKER: The tower should be overflowing.

CYBER TRAINER: Good job Pete

LINTON BESSER: The red team manages to flood the water tower ... and take out the power grid ...

CYBER TRAINER: Ok that's it, we're out. Good work guys.

LINTON BESSER: It's not as far-fetched as it might seem ... in December last year ... a major power outage in in western Ukranian... was attributed to a cyber attack launched from Russia.

MICHAEL HAYDEN: In the industrial age, okay, electrical power grids were all always considered a legitimate military target alright? So in WWII we bombed and destroyed the electrical infrastructure of our enemies Now we have the ability through a cyber attack to just shut the grid down.

ALASTAIR MACGIBBON: We've certainly seen essential utilities targeted in other parts of the world, successfully so. So we'd be churlish to think that that couldn't happen in Australia. I would say that the Australian Government and working with our allies offshore has invested in helping educate the owners of critical infrastructure in how to secure these industrial control systems to reduce the likelihood of things going wrong. Given the size of the networks, given the scale of the networks, and the ever-changing nature of them, it's a bit like the harbour bridge, you start painting at one end and by the time you finish you start painting again.

LINTON BESSER: In Las Vegas the hacking conference came to a dramatic close with a major milestone in the evolution of cyber security .

CYBER GRAND CHALLENGE COMMENTATOR: Alright, Welcome everyone to the first ever, fully automated, cyber security, automated competition, the Cyber Grand Challenge.

LINTON BESSER: Sponsored by the US Department of Defence a major new hacking competition has redefined the landscape again.

CYBER GRAND CHALLENGE COMMENTATOR: The winning team will take home the top prize of two million dollars, we now have seven finalists who will compete here today using automated systems designed to hunt for vulnerabilities and search for weaknesses on competitors systems

LINTON BESSER: This team of developers has designed an artificial intelligence that could take cyber warfare to new levels. It's called Mayhem.

DAVID BRUMLEY: Right now a lot of the computer security mechanisms we have are really about a person on a keyboard, and that's just too slow. So they put out a Grand Challenge - can we have a fully automated attack and defence system? And that's what this week is about. That's what this challenge is about, can we build fully automatic robot computers that can hack and defend against being hacked?

CYBER GRAND CHALLENGE COMMENTATOR: Let's see what's going on here with the rest of the game.

CYBER GRAND CHALLENGE CO COMMENTATOR: It looks like again, it's still a very close game

CYBER GRAND CHALLENGE COMMENTATOR: Alright so, Mayhem and Rubeus are battling for the lead.

LINTON BESSER: These machines on stage are firing off cyber attacks against each other - and they're doing it without any humans involved.

CYBER GRAND CHALLENGE CO COMMENTATOR: Score board seven, we will actually see Mayhem overtake Rubeus to take first place.

CYBER GRAND CHALLENGE COMMENTATOR: Alright, let's see scoreboard seven!

CYBER GRAND CHALLENGE ORGANISER: And now the winner of the Cyber Grand Challenge, for AllSecure and their Bot Mayhem!

LINTON BESSER: Technology has brought us together in new ways ... but it's exposing us to dangers we're only beginning to see.

KATIE MOUSSOURIS: Well, the internet was never designed to actually be secure right, so, we're fighting- we're fighting an almost untenable problem space. We're realising that we've created so much technology, we've created technology faster than we have the ability to secure it as human beings.

SARAH FERUGSON: The Chinese government - through its Embassy in Canberra - has denied it was behind the cyber attacks in Australia, describing the allegations as nothing but false clich. Next week...a special program from the BBC - inside the Battle for Britain - how the Brexit campaign was won. See you then.

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Cyber War SARAH FERGUSON, PRESENTER: Hello and welcome to Four Corners. As you watch this program you may be multi screening with your mobile, tablet or laptop - and if not you'll almost certainly have one of those devices within reach... Australians are famous for embracing technology, we own more than 70 million internet connected devices.

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A community built on respect is inclusive. It is happier. And it is safer. Respect Victoria is dedicated to building a more gender-balanced world by challenging the harmful systems and behaviours that lead to violence.

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A community built on respect is inclusive. It is happier. And it is safer. Respect Victoria is dedicated to building a more gender-balanced world by challenging the harmful systems and behaviours that lead to violence.

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Australasian Legal Information Institute (AustLII), a joint facility of UTS and UNSW Faculties of Law.

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A family violence intervention order protects a person from a family member who is using family violence.

Family violence is behaviour between family members that causes fear. It includes emotional and financial abuse, as well as physical violence and sexual abuse.

About intervention orders

You can apply for a family violence intervention order at your local Magistrates' Court. If you need protection straight away, you can apply for an interim intervention order. If you fear for your children's safety you can include them in your application.

The person the intervention order will protect is called the affected family member or the protected person. The person the intervention order is made against is called the respondent.

Intervention orders include conditions to stop the respondent from using family violence against the protected person. If the respondent breaks the conditions of an intervention order the police can charge them with a criminal offence.

What is family violence?

Family violence is harmful behaviour that is used to control, threaten, force or dominate a family member through fear. It includes:

physical abuse, such as hitting or pushing a person

sexual abuse, such as forcing a person to have sex

emotional or psychological abuse, such as controlling who a person can see and when, or calling them names

financial abuse, such as controlling a person's money without their consent.

Family violence is also behaviour that makes a family member fear for the safety of:

If a child hears, sees or is around family violence in any way, they are also covered by the law. This includes if a child:

helps a family member who has been abused

sees damaged property in the family home

is at a family violence incident when the police arrive.

The police have to respond to all reports of family violence. They can act even if you don't want them to because they must put the safety of you and your children first.

Who are family members?

When making an application for a family violence intervention order, family members are:

people who share an intimate personal relationship - for example, married, de facto or domestic partners - whether or not there is a sexual relationship

parents and children, including children of an intimate partner

relatives by birth, marriage or adoption

people you treat like a family member - for example, a carer, guardian or person who is related to you within the family structure of your culture.

The law also protects a person from anyone who was a family member in the past.

More information
Conditions in a family violence intervention order What the police do about family violence Applying for an intervention order If an application has been made against you Going to court for an intervention order hearing How intervention orders work Breaking an intervention order
Get help

Find out how you can get help with family violence.

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A family violence intervention order protects a person from a family member who is using family violence. Family violence is behaviour between family members that causes fear, including emotional and financial abuse, as well as physical violence and sexual abuse.

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The police can apply for a family violence safety notice if someone needs protection.

The safety notice can protect the affected family members before an intervention order application is heard in court.

A police officer can only apply for a family violence safety notice if they believe a respondent is an adult. The police can not issue a notice against a person under 18.

A safety notice can protect:

an affected family member to make sure they are safe from the respondent

a child who has heard, seen or was around family violence in any way

the property of the affected family member.

Applying for a family violence safety notice

A police officer can apply for a safety notice phone or fax while they are at the family violence incident. A sergeant or higher ranking police officer looks at the application. If they agree the affected family member needs protecting, they can issue a safety notice.

A police officer can apply for a safety notice even if the affected family member does not want them to. The officer will make it clear to the respondent that applying for a safety notice is a police decision.

Getting a family violence safety notice

Once a family violence safety notice is issued, a police officer must serve a copy to the respondent and explain what the notice means. The affected family member also gets a copy and the notice is filed with the Magistrates' Court.

A family violence safety notice is also:

The summons will tell you the time, date and place of the first mention date. This is the first date that you go to court. See Going to court for an intervention order hearing.

The first mention date must be within five working days after the safety notice is served on the respondent.

How a safety notice works

A family violence safety notice starts once it has been served on the respondent by a police officer.

A safety notice has conditions (rules) to stop the respondent from using family violence. They may include the same conditions in an intervention order.

If the respondent disobeys the conditions, the police can arrest them. See Breaking an intervention order.

A safety notice continues until a magistrate decides:

to make a family violence intervention order and it is served on the respondent

not to make a family violence intervention order.

Leaving the family home

To protect family members, the police can include a condition that the respondent must leave the family home. This means the respondent must not live in, re-enter or visit the home until the first mention date. A magistrate will decide then what happens next.

If the respondent has nowhere to stay, the police will do their best to help find emergency accommodation.

If the respondent refuses to leave or returns to the family home, the police can use reasonable force to remove them. The police can also charge the respondent with a criminal offence for breaking the intervention order.

Get help

Find out how you can get help with family violence.

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The police can apply for a family violence safety notice if someone needs protection. The safety notice can protect the affected family members before an intervention order application is heard in court. A police officer can only apply for a family violence safety notice if they believe a respondent is an adult.

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Crimes against property power point - video

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Crimes against property power point - video

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Drug related offences - power point - video

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Drug related offences - power point - video

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Drug related offences - power point - pdf

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Drug related offences - power point - pdf

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free online webinar - Overseeing the use of police powers during the COVID-19 pandemic

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free online webinar - Overseeing the use of police powers during the COVID-19 pandemic

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overseeing the use of police powers during the covid-19 pandemic

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overseeing the use of police powers during the covid-19 pandemic tickets

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Overseeing the use of police powers during the COVID-19 pandemic

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Eventbrite - Victorian Equal Opportunity and Human Rights Commission presents Overseeing the use of police powers during the COVID-19 pandemic - Friday, 22 May 2020 - Find event and ticket information.

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The vigilante paedophile hunter exposing online predators | 60 Minutes Australia

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The vigilante paedophile hunter exposing online predators | 60 Minutes Australia

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The vigilante paedophile hunter exposing online predators | 60 Minutes Australia

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Burning beds - movie clip - Trigger warning

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Burning beds - movie clip - Trigger warning