12. Elections - charging guidelines

12.1 Introduction

Parliament has enacted both indictable crimes and summary offences for a number of offences to cover the same conduct. Indictable crimes are dealt with in the Supreme Court before a judge and jury and summary offences are dealt with by the Magistrates Court. In other cases, although not identical, there are similar summary offences to indictable crimes.

The following charging guidelines have been issued for common offences to maintain consistency from case to case. The guidelines do not purport to cover the field and there are many instances where there are similar summary and indictable offences. Where Tasmania Police or other regulatory agencies are unsure whether a matter ought to be charged on indictment or summarily, advice should be sought from the Office, preferably in writing.

Where a person has been charged with an indictable crime but has not yet been committed to the Supreme Court, Tasmania Police should obtain advice from the Office before substituting the indictable crime with a summary offence.

12.2 Animal cruelty

Parliament has enacted the offence of cruelty to animals contrary to s8 of the Animal Welfare Act 1993, and also the crime of aggravated cruelty contrary to s9 of that Act.

The former is charged summarily on complaint, and the latter is charged on indictment due to the maximum penalty of 5 years imprisonment (see s38 of the Acts Interpretation Act 1931 (TAS)).

Section 8 of the Animal Welfare Act 1993 states the following

• (1) A person must not do any act, or omit to do any duty, which causes or is likely to cause unreasonable and unjustifiable pain or suffering to an animal.
  • Penalty: In the case of –
    • (a) a body corporate, a fine not exceeding 500 penalty units; or
    • (b) a natural person, a fine not exceeding 100 penalty units or imprisonment for a term not exceeding 12 months, or both.

• (2) Without limiting the generality of subsection (1), a person is guilty of an offence under that subsection if the person –
  • (a) wounds, mutilates, tortures, overrides, overdrives, overworks, abuses, beats, torments or terrifies an animal; or
  • (b) overloads or overcrowds an animal; or
  • (c) drives, conveys, carries or packs an animal in a manner or position or in circumstances that subjects or may subject it to unreasonable and unjustifiable pain or suffering; or
  • (d) works, rides, drives or uses an animal when it is unfit for the purpose; or
  • (e) has possession or custody of an animal that is confined, constrained or otherwise unable to provide for itself and fails to provide the animal with appropriate and sufficient food, drink, shelter or exercise; or
  • (f) abandons an animal of a species usually kept in a state of confinement or for domestic purposes; or
  • (g) has possession or custody of a sick or injured animal and fails to provide veterinary or other appropriate treatment for the animal; or
  • (h) administers to or otherwise uses in respect of an animal an injurious drug or a toxic or noxious substance except for–
    • (i) medical curative purposes; or
    • (ii) scientific research purposes; or
    • (iii) normal management procedures; or
    • (iv) euthanasia; or
    • (v) the purposes of controlling a disease specified in the Biosecurity Act 2019 as a disease to which this section applies; or
    • (vi) the purposes of controlling a pest animal in accordance with the pest register; or
  • (i) in the course of any sport or public performance or in the training for any sport or public performance, applies or exposes an electronic device to an animal; or
  • (j) uses a spur, or other like appliance, with sharpened rowels on an animal; or (ja) uses a pronged collar, or a similar collar, on an animal; or
  • (k) does any other prescribed act.

Section 9 of the Animal Welfare Act 1993 requires an offence against s8 to be committed in aggravating circumstances.

• (1) A person must not do any act, or omit to do any duty, referred to in section 8, if the person knows that, or is reckless as to whether, the act or omission will, or is reasonably likely to, result in –
  • (a) the death, deformity or serious disablement of an animal; or
  • (b) harm to an animal that endangers the life of the animal; or
  • (c) an injury to an animal that, either alone or in combination with the health of the animal at the time of the injury, results in a significant and longstanding injury to the animal.
• Penalty: In the case of –
  • (a) a body corporate, a fine not exceeding 1 000 penalty units; or
  • (b) a natural person, a fine not exceeding 200 penalty units or imprisonment for a term not exceeding 60 months, or both.

Therefore, there is an additional factual burden in proving the aggravated offence. The principal consideration is that the charge chosen must be appropriate for the nature and extent of the criminal conduct disclosed by the evidence. These guidelines are to assist prosecutors in the exercise of their discretion. Each case should be approached and assessed on its own merits.

There are significant penalties for both offences. However, aggravated cruelty is an indictable offence. Generally, s8 should be preferred, even when the circumstances of aggravation could be made out, except in very serious examples of the offence, or if the defendant has serious prior convictions, and it is thought the penalty for the s8 offence will not be sufficient.

Pursuant to s9(3) of the Animal Welfare Act 1993, if a person is charged pursuant to s9 but found not guilty of the offence under that section, they may be convicted of an offence under s8 if the evidence warrants it.

When a charge proceeds under s9, consideration should be given to guideline 2.8 (Remittals) as to whether or not remittal is appropriate and if such a course would still enable the Magistrates court to impose a sentence commensurate with the gravity of the conduct having regard to personal and general deterrent, having regard to the maximum penalty of 12 months imprisonment on remittal.

In considering the circumstances of the crime to determine whether remittal is appropriate, a prosecutor should have regard to the severity of any pain, suffering or injury caused to the animal/s, as well as the scale of the offending.

12.3 Assault

12.3.1 Indictable crime or summary offence

Parliament has enacted the offence of assault contrary to s35 of the Police Offences Act 1935 and also as a crime contrary to s184 of the Criminal Code. The former is charged summarily on complaint and the latter is charged on indictment. Thus, in cases of assault a determination must be made whether to charge a person summarily or on indictment.

The dominant consideration is the seriousness of the injuries actually received by the complainant, not what could have happened. It is therefore not the case that every time a weapon (other than a firearm) is used, or a vehicle or vessel appears to have been the instrument used for committing an assault that an indictable charge must be preferred.

However, and illustrating that circumstances will vary greatly and do not lend themselves to inflexible rules, an attack with an axe which has resulted fortuitously in only a nick on the finger of the victim should still be one normally pursued on indictment. The intention of the offender can be a significant, but not dominant, consideration. If a firearm is used or involved in a way specified in s115 of the Firearms Act 1996 it is clearly Parliament’s intention that a charge of aggravated assault under s183 of the Criminal Code proceed, irrespective of actual injury.

Identical considerations apply when determining whether a person should be charged with the summary offence of assaulting a police officer contrary to s34B(1) of the Police Offences Act 1935 or the indictable offence of assaulting a police officer contrary to s114 of the Criminal Code.

Where the complainant is a police officer who has suffered serious bodily harm so that, upon conviction, s16A of the Sentencing Act 1997 applies, generally speaking the alleged offender should be charged on indictment with, at the very least, unlawful assault contrary to s184 of the Criminal Code or assaulting a police officer contrary to s114 of the Criminal Code.

It is not proper to indict a person for Criminal Code assault where the facts would normally warrant a summary charge under the Police Offences Act merely because the statutory time limit for the charging of a summary offence has expired. However, if there are other more serious indictable charges arising out of the same circumstances as the alleged offences which would normally be dealt with summarily then these matters can be dealt with under the Criminal Code in order for the same court to deal with all the circumstances involving the matters.

12.3.2 Assault on a pregnant woman

The crime created by s184A requires only that there to be:

1. an unlawful assault
2. on a woman
3. whom the accused knows to be pregnant.

However, it is not essential that it should be charged as an indictable crime every time those elements are present. The indictable crime should be reserved for situations where:

• The assault would be otherwise indictable. Then the accused’s knowledge of the woman’s pregnancy is a further aggravating factor and the specific charge will be appropriate.
• The assault was directed at the pregnancy or at the fact that the victim was pregnant or where the assault had a realistic chance of compromising the pregnancy.

Where the assault does not fit these criteria, it can be charged under the Police Offences Act (which is not to overlook that not all incidents which technically amount to assault have to be charged in any event) unless there are more serious indictable offences arising out of the same facts, circumstances or relationship, where the Criminal Code offence is to be preferred to avoid more than one hearing.

12.3.3 Assault and family violence

Assault cases involving choking, smothering or any other form of strangulation, particularly in a family violence context, should be regarded as grave criminal conduct and even where no injury occurs.

See 12.18 Strangulation and 11. Family violence offences guidelines

12.4 Child exploitation material

Parliament has provided that the possession, distribution and production of child exploitation material may be dealt with summarily pursuant to s74A(a) or (b) of the Classification (Publications Films and Computer Games) Enforcement Act 1995 or on indictment pursuant to ss130A-D of the Criminal Code 1924.

12.4.1 What is child exploitation material?

The definition of child exploitation material is the same for both the indictable crimes and the summary offences. In the case of the indictable crimes it is more explicit that knowledge (actual or imputed) that the material possessed or accessed is child exploitation material is required as an element of the crime, but given the defences provided are similar and relate to unsolicited or “accidental” or “unaware” access or possession, in practical terms the decision to charge will not be likely to turn on this distinction as cases where the defences will be clearly likely to be made out might not be charged at all.

Therefore, there needs to be some reliable objective distinction applied to ensure that decisions as to whether to proceed summarily or on indictment can be made in a principled and predictable way, so charging decisions cannot be said to be made capriciously, unfairly or with favouritism. However, the guidelines should be reasonably flexible and not amount to de facto legislating.

It must first be appreciated that child exploitation material is not simply depictions of children, naked or not, engaged in non-sexual activities such as bathing, even if there are numerous images or if they seem to have been taken covertly. Child exploitation material is that which describes or depicts in a way that a reasonable person would regard as being, in all the circumstances, offensive, a person who is or appears to be under the age of 18 years:

• engaged in sexual activity
• in a sexual context
• as the subject of torture, cruelty or abuse (whether or not in a sexual context)

An image (print or otherwise) does not become child exploitation material simply because the viewer or possessor of it derives some sexual satisfaction or has some sexual motive for keeping the image. The sexual context must be apparent by the image or depiction itself, not from its location or possession.

An example of this is where a person in their own home or in a public sphere videos or photographs children showering in a bathroom, or on a beach wearing bathers. Such images are not in a sexual context nor are the children engaged in a sexual activity. In situations such as these, prosecutors should consider s13A of the Police Offences Act 1935, subject to time limitations.

12.4.2 Classification

Child exploitation material should always be classified by Tasmania Police. Such material is classified and viewed by police using the following categories:

• Category 1 – Depictions of real pre-pubescent children (under the age of 13 years approximately), and the child is involved in a sexual act, is witnessing a sexual act or the material is focused/concentrated on the child’s anal or genital region.
• Category 2
  • Depictions or descriptions of any real child from birth to under the age of 18 who is, or appears to be, a victim of torture, cruelty or physical abuse.
  • Depictions of real post-pubescent children under the age of 18 years (approximately 13-18) and the child is involved in a sexual act, is witnessing a sexual act or the material is focussed/ concentrated on the child’s anal or genital region or breasts.
  • Descriptions in the form of audio, text, written chats or stories of any child from birth to under the age of 18 who is, or is implied to be, engaged in sexual activity or posing or who is, or is implied to be, in the presence of a person engaged in that activity.
  • Depictions of real pre-pubescent and post-pubescent children engaged in a sexual pose in a way that reasonable persons would regard as being, in all the circumstances, offensive.
  • Anime, cartoons or photo-shopped material depicting representations of a child from birth to under the age of 18 engaged in, or implied to be engaged in, sexual activity or a sexual pose; or in the presence of a person engaged in that activity; or the material is focused/concentrated on the child’s anal or genital region or breasts, in a way that reasonable persons would regard as being, in all the circumstances, offensive.
  • Child-like sex dolls or other objects that resemble a child under the age of 18 years, or part of the body of a child, if a reasonable person would consider it likely that the material is intended to be used by a person to simulate sexual intercourse.
• Category 3 – Related non-illegal files. An image that forms part of a child exploitation material series, but which is not in its own right illegal, although it may contain important clues or identifying information to assist investigations in relation to category 1 or 2 images.
• Category 4 – Non-illegal, ignorable material.

In instances where there are a significant number of images, police should review/classify a random selection of 1000 images across the different mediums seized, or 50 videos, or 250 cartoons/anime or written child exploitation material (this is to include all the categories referred to above). In addition, 25 images (or 10 videos) are to be described by police.

In cases of a plea of guilty, police are to provide a representative sample for submission to a judicial officer.

The classification of 1000 images (or 50 videos or 250 cartoons/anime or written child exploitation material) is subject to several exceptions and police officers should exercise discretion, depending on the circumstances of the case. These exceptions include (but are not limited to):

• where an accused has produced the images himself or herself, all images are to be reviewed/classified
• where a particular judicial officer has requested further information
• upon a plea of not guilty there will be a need to classify more, if not all, of the seized library as whether an image/video is child exploitation material is a jury question
• an officer may choose to classify an entire seized library due to a particular investigation or, in the alternative, in the desire to locate and protect a subject of a particular image

The Office welcomes discussion with investigators to determine when additional classification may be required.

Apart from classification, other relevant factors to be taken into account include:

• the size of a collection
• the method of classification within a collection
• whether the images were exchanged by way of peer-to-peer
• whether the images were purchased or free
• whether the images were downloaded in one group or there were numerous downloads
• whether there was one site from where the images were obtained or two sites
• how long the person was in possession of the images

12.4.3 Indictable crime or summary offence

The considerations listed above are helpful in providing guidelines as to what should generally be charged as a summary offence and what should be charged as an indictable crime.

Ordinarily, the personal characteristics or history of the accused should not play a part in the selection of summary or indictable charges.

A summary offence should ordinarily be the course pursued in cases where there are 1000 child exploitation material items or fewer.

This is a guideline and subject to individual exceptions including where an accused has:

• produced the actual images (as opposed to "sexting")
• a comprehensive library system (file management system)
• images depicting extremely young children engaged in sexual activities

If there are other more serious indictable charges arising out of the same circumstances as the alleged offences which would normally be dealt with summarily then these matters can be dealt with under the Criminal Code in order for the same court to deal with all the circumstances involving the matters.

An indictable crime should be pursued in instances where the quantities of child exploitation material are not within the summary charging guidelines referred to above.

12.4.4 Handling child exploitation material

On occasions, particularly when it is in dispute whether the material is child exploitation material, it may be necessary for the prosecutor with conduct of the case to view the material. In most cases, however, it will be sufficient to rely on the classification and number of images in the descriptions or the sample of the images/videos provided by Tasmania Police.

Section 130E(b) of the Criminal Code authorises the viewing, handling and possession of child exploitation material for legal purposes if the conduct is reasonable for that purpose. When dealing with child exploitation material, prosecutors must comply with the following guidelines:

• Before viewing the material an email is to be sent to the Director of Crown Law stating that the material is to be viewed, the purpose of viewing the material and the name of the case
• Only the prosecutors concerned with the particular case are to view the material
• The material is to be kept in a secure place
• Other than for court purposes or the purpose of returning the material to police, the material should not be removed from the Office without the express written consent of the Director or Deputy Director
• Where defence counsel wish to view the material in order to instruct their client, unless exceptional circumstances exist, they are to view the material at the offices of the Director of Public Prosecutions
• Where it is considered exceptional circumstances do exist for defence counsel to take the material, e.g. if expert advice is sought, the written consent of the Director or Deputy Director is required. In such circumstances, defence counsel will be required to give written undertakings as to who will view the material, where it will be stored and that it will be returned on a specified date or earlier if subsequently required by the Office to do so.
• If there is to be a trial, every endeavour should be made by the prosecutor with conduct of the case to reach an agreed fact with defence counsel as to the nature and quantity of the material to avoid having to tender and show the child exploitation material in court. Where this is not possible, the prosecutor should consider making an application to the court pursuant to s130G of the Criminal Code to limit the persons in the court to “essential persons” as defined by that section.

12.4.5 Forfeiture of child exploitation material

Section 130F of the Criminal Code provides:

(1) This section applies if a person is prosecuted for a crime under section 130, 130A, 130B, 130C or 130D.

(2) The court may, if it considers material which is the subject of a charge under any of the sections referred to in subsection (1) to be child exploitation material, order that the material be forfeited to the Crown.

(3) The court may make an order under subsection (2) whether or not the person is convicted of a crime under any of the sections referred to in subsection (1).

(4) If the person is convicted of a crime under any of the sections referred to in subsection (1), the court may also order that any thing used to commit the crime be forfeited to the Crown.

(5) The court may also make any order that it considers appropriate to enforce the forfeiture.

(6) This section does not limit the court's powers under the Crime (Confiscation of Profits) Act 1993 or any other law.

(7) When any material or thing is forfeited to the Crown, the material or thing becomes the Crown's property and may be disposed of or destroyed in such manner as the Attorney-General may direct.

This is a very broad provision and provides the court a wide discretion in respect of forfeiture. In addition to forfeiting child exploitation material, the court can order anything used in the commission of the crime to be forfeited. This may include such items as cameras and computers. It is likely the court will take into account the general use of the item in determining whether to forfeit an item.

Prosecutors should ask for the following to be forfeited:

• All child exploitation material (The court may order it to be forfeited even if the accused is not convicted)
• Any item used directly in the crime, e.g. camera or computer

Where a prosecutor believes a significant item that was used indirectly in the crime should be forfeited, they should consult the Director or Deputy Director.

12.5 Computer-related crime

Sections 257B-E of the Criminal Code enact various crimes relating to computers. Identical provisions in the Police Offences Act 1935 make various acts summary offences. The crimes or offences are as follows:

• computer-related fraud (s257B of the Criminal Code; s43A of the Police Offences Act 1935)
• damaging computer data (s257C of the Criminal Code; s43B of the Police Offences Act 1935)
• unauthorised access to a computer (s257D of the Criminal Code; s43C of the Police Offences Act 1935)
• insertion of false information as data (s257E of the Criminal Code; s43D of the Police Offences Act 1935)

On occasions some of these offences may overlap, e.g. a person may commit computer-related fraud by using a computer without authorisation and/or by inserting false data into a computer.

Thus, Parliament has provided that for the above crimes a person can either be charged on indictment or summarily.

Care must be taken to choose a charge which reflects the nature and extent of the criminal conduct disclosed by the evidence which will enable a court to impose a sentence commensurate with the gravity of the conduct.

These guidelines are to assist prosecutors in the exercise of their discretion. Each case should be approached and assessed on its merit.

Where the computer-related crime involves fraud a similar approach to stealing as provided by s72 of the Justices Act 1959 should be taken. That is, a summary charge should be preferred where the amount of the alleged computer-related fraud is less than $20,000 unless:

• the charge involved forms part of a course of conduct or series of crimes which are indictable
• circumstances relating to the alleged offender and/or to the conduct are such that the penalty provision in the lower court would not be adequate
• a co-accused was dealt with on indictment (prosecutors should strive for consistency as between co-offenders unless there are compelling reasons not to)

Where the crime does not involve a financial element, such as damaging data or inserting false information for non-financial reasons, in determining whether a charge should be summary or indictable the purpose of the crime and its result should be considered. Generally the charge should be a summary one unless the conduct involves serious, or potentially serious, risk to lives or property.

Similarly, in the case of unauthorised access to a computer, consideration needs to be given to the type of information accessed and the purpose of the access.

Before any charges, whether summary or indictable, are laid further consideration needs to be given as to whether the conduct may be adequately dealt with by employment codes of conduct.

In determining whether an employment code of conduct is sufficient, regard to the following is required:

• The type of material accessed
• The purpose for which it was accessed, e.g. was it for a malicious purpose?
• Whether the material was disseminated
• Whether the access caused any actual harm to an individual or organisation
• The likely penalty pursuant to a code of conduct proceeding

12.6 Conspiracy

Section 297 of the Criminal Code makes conspiracy a crime. In particular, s297(1)(b) makes it a crime to conspire to pervert the course of justice and s297(1)(c) makes it a crime to conspire to commit a crime.

A conspiracy is an agreement between two or more persons. There must be a conscious understanding of a common design to carry out a particular act or cause a particular state of affairs. The conspiracy becomes unlawful because the agreement is to do an unlawful act (crime) or to do an act by unlawful means (see R v Rogerson (1992) 174 CLR 268 per Brennan & Toohey JJ at 280-1).

The crime is completed when the agreement comes into existence. However, it is a continuing offence and it continues as long as two or more people remain in the agreement. In Truong v R (2004) 223 CLR 122, Gleeson CJ and McHugh & Heydon JJ said at [35]:

Although a crime of conspiracy has been committed, and in that sense is complete, once an agreement to commit a crime has been made, conspiracy is a continuing offence. It is an error to think that the crimes comes to an end once the agreement has come into existence.

Thus, persons can be participants in the same conspiracy who do not know each other or even know of each others’ existence providing they have a conscious understanding of the same common design. Likewise, persons can leave or join the conspiracy and the conspiracy will continue provided there are at least two persons with the same common design or agreement.

Often a charge of conspiracy will preferred where two or more people form an agreement to conspire to commit a crime but that crime, for whatever reason, is not committed. However, the charge of conspiracy is not limited to this situation.

Conspiracy can also be charged where the substantive crime has been committed. Generally speaking, however, conspiracy and the substantive crime should not be tried on the same indictment (see R v Hoar (1981) 148 CLR 32) although there is no rule of law that requires a conspiracy count to be severed from a count that charges commission of the crime in respect of which it is alleged there was a conspiracy (see Tasmania v Green (2007) 16 Tas R 318).

Where conspiracy is charged with the substantive offence it can lead to injustice because of the unnecessary complexity caused by difficult judicial directions to juries regarding the admissibility of evidence and add to the length of trials (see R v Moore [1988] 1 Qd R 252). Also, where a specific offence is charged the allegation can be more specifically particularised, thus giving the accused greater certainty of the case he or she has to meet and a more reasonable precise focus for determining the admissibility of evidence.

Generally, conspiracy charges will only be preferred in the following circumstances:

• Where there is evidence that a conspiracy was entered into by two or more people, however, the substantive offence has not been completed
• Where the agreement has lasted for a significant period of time involving many substantive offences, however the essence of the agreement is ongoing criminal activity in an established organisation and the charging of the substantive offences would not indicate the overall criminality of the group or individuals within the group (see Shepherd v R (1988) 37 A Crim R 303)
• Where the conspiracy or agreement was to carry out a specific unlawful purpose which amounted to a crime but to achieve that purpose there were a number of overt acts committed which were, in themselves, substantive offences but were only committed to achieve the major unlawful purpose of the agreement

In framing an indictment for conspiracy, prosecutors must be careful when determining what agreement each particular accused shared. Further, in carrying out an unlawful agreement other unlawful agreements may be entered into with people who did not share or have common design with the major agreement. In such circumstances, individual counts particularising the separate agreements are required.

In other words, care must be taken to ensure that each count only charges one conspiracy and is therefore not duplicitous (see Georgiadis v R (2002) 11 Tas R 137 at [21]-[25]; Gerakiteys v R (1984) 153 CLR 317). Particulars must be precise in order to avoid arguments that a specific count could refer to a number of different alleged or conceivable conspiracies.

Prosecutors should also be aware that where overt acts in carrying out the conspiracy are to be relied on to prove the conspiracy, such acts need to be particularised. It is not necessary for such acts to be particularised in the indictment but if not the particulars should be forwarded to the accused’s counsel in a separate document.

Where Tasmania Police are of the view that a charge of conspiracy should be laid, advice should be obtained from the Office.

No indictment should be filed for a count of conspiracy without the approval of the Director.

12.7 Criminal defamation

Section 196(1) of the Criminal Code provides:

A person who, without lawful excuse, publishes matter defamatory of another living person (the "victim") –

(a) knowing the matter to be false or without having regard to whether the matter is true or false; and

(b) intending to cause serious harm to the victim or any other person or without having regard to whether such harm is caused –
is guilty of a crime.

Sub-section (6) provides that a prosecution under this section must not be commenced without the consent of the Director.

Prosecutions for criminal defamation will only be authorised on rare, serious occasions, particularly where there is a civil remedy. If it is part of a general sustained offensive behaviour towards one individual, normally a stalking charge will be preferred.

Generally speaking, consent for prosecution will only be forthcoming in the following circumstances:

• The application has demonstrated a sound case, that is, a clear prima facie case that defamatory publications were made including evidence negating lawful excuse for the publications: Goldsmith v Pressdram Ltd [1977] 1 QB 83 at 88, Gouldham v Sharrett [1966] WAR 129 (FC) at 137 and Spautz v Williams [1983] 2 NSWLR 506 at 537.
• The case is one which calls for the intervention of the criminal law: Shapowloff v Fitzgerald [1966] 2 NSWR 244 at 249.
• That the intervention of the criminal law is called for where:
  • The defamation is so serious as to require both punishment of the offender and the protection of the community: Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 485 and Spautz v Williams supra at 540; and
  • The public interest, as distinct from the individual’s interest, requires the institution of criminal proceedings: Goldsmith v Pressdram Ltd supra and Shapowloff v Fitzgerald [1966] 2 NSWR 244.

See also Westbrooke v Parker [1998] TASSC 104.

Authorisation should be sought in accordance with the same procedure as that for seeking authorisation for a charge of persistent sexual abuse of a child or young person.

12.8 Driving offences involving death or serious injury charging

Parliament has enacted a series of charges for the driving of a motor vehicle where an accident occurs resulting in death or serious injury. The liability for conduct between offences can overlap in some instances. These guidelines are issued to ensure consistency from case to case.

It should be remembered that not every accident where death or serious injury occurs will result in a breach of the law. Accidents can occur due to inexperience or because people make a mistake or something happens that could not be foreseen or prevented. It is only in cases where the conduct falls into one of the following categories that a charge will arise.

12.8.1 Negligent driving causing death or grievous bodily harm

These offences are summary offences and are dealt with in the Magistrates Court.

Section 32(2A) of the Traffic Act 1925 provides that “a person must not cause the death of another person by driving … negligently”. Sub-section 2B provides that “a person must not cause grievous bodily harm by driving … negligently”. Sub-section (2C) provides that:

For the purposes of … whether a person is driving … negligently, the following are to be taken into account (relevantly):

(a) the circumstances of the case;

(b) the nature, condition and use of the public street…

The test for negligence under the Traffic Act 1925 appears to be settled and is contained in the decisions of Filz v Knox (2002) TASSC 82; Fehlberg v Gallagher (1957) Tas SR 286; Robertson v Watts 51/1964 and Price v Fletcher (1972) Tas SR. It appears to be (and as one would expect):

Persons who drive vehicles on a public road manage them with the same degree of care as an ordinary prudent man would deem necessary in the circumstances presented to him in order to avoid damage to person or property. The standard is not that of an exceptionally careful man nor is it that which the actual driver may consider but the standard of the average man.

These charges capture a wide range of conduct including momentary inattention, not keeping a proper lookout and driving too fast for the conditions of the road. At its most serious the conduct can overlap with the crime of causing death by dangerous driving.

12.8.2 Causing death or grievous bodily harm by dangerous driving

Section 167A of the Criminal Code provides:

Any person who causes the death of another person by the driving of a motor vehicle at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including in the case of the driving of a motor vehicle on a public street, the nature, condition and use of the street, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the street, is guilty of a crime.

Section 167B of the Criminal Code provides:

Any person who causes grievous bodily harm to another person by the driving of a motor vehicle at a speed or in a manner that is dangerous to the public, having regard to all the circumstances of the case, including, in the case of the driving of a motor vehicle on a public street, the nature, condition and use of the street and the amount of traffic that is actually at that time, or that might reasonably be expected to be, on the street, is guilty of a crime.

These are serious crimes charged on indictment in the Supreme Court. The cause of death or serious injury must be due to the dangerous driving. For driving to be dangerous there must be some identified risk to the public over and above the ordinary risks associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention (see Jiminez v R 173 CLR 572).

Although there can be many different circumstances, generally, for the manner of driving to be regarded as dangerous there must be significant speed, the driver is intoxicated or the vehicle itself is in a dangerous condition. The circumstances are not limited to these but there must be some significant feature that makes the driving dangerous. No state of mind is an element of the crime and the standard of driving is to be judged objectively (see Wahl v State of Tasmania TASCCA 5 per Evans J at [14]).

12.8.3 Manslaughter

A person’s liability for manslaughter arising out of a death in a motor vehicle is pursuant to s156(2)b) of the Criminal Code which provides:

Culpable homicide

(2) Homicide is culpable when it is caused –

(b) by an omission amounting to culpable negligence to perform a duty tending to the preservation of human life, although there may be no intention to cause death or bodily harm.

The duty here arises out of s150 of the Criminal Code which provides:

Duty of persons in charge of dangerous things

It is the duty of every person who has anything in his charge or under his control, or who erects, makes, or maintains anything, whether living or inanimate, which, in the absence of precaution or care in its use or management may endanger human life, to take reasonable precautions against, and to use reasonable care to avoid, such danger.

However, the omission to properly manage a motor vehicle must be more than mere negligence. It must amount to culpable negligence. For negligence to amount to culpable negligence “the facts must be such that in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such a disregard for the life and safety of others as to amount to a crime against the state and conduct deserving of punishment.” (see Bateman v R (1925) 19 Cr App R 8 at 11-12; King v R [2012] HCA 24 at [26]) “There must be a great falling short of the standard of care which a reasonable man would have exercised and a high risk that death or grievous bodily harm would have resulted. It must be merited of criminal punishment.” (see King v R supra at [29])

Thus, the test is objective of what a reasonable person regards in the circumstances.

Although the jurisprudential distinction between causing death by dangerous driving and manslaughter is often difficult to distinguish an “indictment for manslaughter is reserved for those cases involving homicide caused by extreme culpability arising out of situations of patent danger created typically by a combination of speed and intoxication.” (see R v O’Brien [1987] TASSC 47 per Wright J at [34].

To summarise:

• Negligent driving involves a breach of care that one would not expect from a reasonable prudent driver. It can range from lack of attention to excessive speed.
• Dangerous driving involves driving that has caused significant risk to the public over and above the ordinary risks associated with driving.
• Manslaughter involves the most serious cases of dangerous driving or reckless driving.

What charge (if any) a driver should face where death or serious injury has resulted from an accident is, therefore, a matter of judgment but will be based on the above summarised criteria. In order to maintain consistency across the State and from one case to another, Tasmania Police should obtain advice from the Office prior to any charges being laid. Advice should not be given by the Office without it being approved by the Director or his nominee (who will be a senior counsel in the Office).

If, for any reason, a charge needs to be made urgently, telephone contact should be made.

The above procedure will ensure a consistent approach is taken in all cases. It will also allow the Witness Assistance Service to be engaged to provide support at an early stage.

Where summary charges are laid ordinarily the Office should prosecute the matter and victim impact statements should be prepared.

12.8.4 Sentencing factors

There are a number of factors relevant to sentencing in serious driving cases of which prosecutors need to be aware.

General deterrence is the prime consideration (see Moyle v Tasmania [2010] TASCCA 2, in particular Tennent J at [51]; Gallagher v Tasmania [2009] TASSC 84; DPP v Watson [2004] TASSC 54).

The youthfulness of the offender is not a significant mitigating factor because young people are the ones who need to be deterred from committing such offences. As Underwood J (as he then was) said in DPP v Watson supra at [21]:

Death and injury from negligent driving is now widely recognised by the community as a serious social and financial problem. Courts are expected to impose penalties that will be sufficiently severe to deter both the offender and others who might be minded to act like him or her. In the case of crimes such as this one, the significance of youth and good antecedents has to yield in substantial measure, to the need to deter the offender and others. I venture to repeat what I said in R v O’Brien A43/1987 at 7:

Any consideration of the deterrent aspect of sentences for crimes where death is caused by dangerous driving involving conscious risk taking, must acknowledge the fact that a high proportion of offenders fall into the youthful category. It is a notorious fact that young people consume alcohol, often to excess, and then resort to driving motor vehicles thereby putting members of the public at grave risk. In the sentencing process, the need to deter this class of offenders weighs heavily against the reformative and rehabilitative factors leading to the conclusion that, in most cases, a substantial immediate custodial sentence is appropriate.

In cases where death has occurred as a result of the offending behaviour the result is devastating. However, the moral culpability of the offender’s behaviour can vary significantly. Hence the hierarchical nature of the charges. Obviously also within each category of charge culpability can vary significantly.

For the summary offence involving negligent driving an assessment of the degree of risk of death or serious injury posed by the negligent driving is an important consideration (see Charnock v Tasmania Police [2013] TASSC 64).

For the crimes of causing death or grievous bodily harm by dangerous driving and manslaughter, the presence of the following factors are significant:

• extent and nature of the injuries sustained
• number of people put at risk
• degree of speed
• degree of intoxication and/or substance abuse
• erratic driving
• competitive driving or showing off
• length of journey during which others were exposed to risk
• ignoring of warnings
• evading police pursuit
• degree of sleep deprivation
• failing to stop

(see R v Jurisic (1998) 45 NSWLR 209; R v Whyte (2002) 55 NSWLR 252; Shipton v R [2003] TASSC 23 per Cox CJ at [5]; Moyle v Tasmania supra per Wood J at [59]-[60])

Of course, a number of these factors would also be relevant to the summary offences.

Significant prior driving convictions or disqualification from holding a licence is relevant as a lack of a mitigatory factor. These factors are also of considerable weight in respect of personal deterrence and the protection of the public aspects of the sentence (see Shipton v R supra per Cox CJ at [11]; Moyle v R supra per Crawford CJ at [18])

In respect of the crime of manslaughter the general range of sentencing for manslaughter is relevant. In DPP v Watson supra, Slicer J said at [44]:

A single act of dangerous conduct involving the use of a motor vehicle and which results in death, might still attract a lesser penalty than an equivalent act which involves what has traditionally been described as containing an act of hostility to another. However where there is an extended course of conduct, as here, then there ought be greater equivalence. The absence of personalised or focused hostility is offset by the prolonged conduct, each minute of which is fraught with danger.

See also Blow J (as he then was) in Shipton v R supra at [44] where he said:

Since the Criminal Code does not create a separate crime of “motor manslaughter” it is appropriate to have regard to the range of sentences that have been imposed for the crime of manslaughter in other circumstances.

Finally, it should be remembered it is difficult when comparing sentences from one case to another as the factors may vary considerably. However, what all the cases indicate is the need for a deterrent sentence as Tennent J said in Gallagher v Tasmania supra at [84]:

A comparison of these sentences demonstrates just how difficult, and perhaps unwise, such a comparison can sometimes be. The factors which led to the sentences imposed varied, often significantly. The common theme however was the need to treat the crime of causing death by dangerous driving as one which, community mores dictated, required a significant deterrent sentence.

12.9 Driving offences not involving death or grievous bodily harm

Parliament has enacted a series of driving offences, both indictable and summary, where death or grievous bodily harm does not result. These include:

• Driving without due care and attention contrary to rule 367(1) of the Road Rules 2019
• Negligent driving contrary to s32(2) of the Traffic Act 1925
• Reckless driving contrary to s32(1) of the Traffic Act 1925
• Dangerous driving contrary to s172A of the Criminal Code

The offences are listed in ascending order of seriousness. Dangerous driving is an indictable offence.

Negligent driving involves a breach of care that one would not expect from a reasonable prudent driver. The negligence can range from lack of attention to excessive speed (see 12.8.1 Negligent driving causing death or grievous bodily harm).

Reckless driving involves driving where there is a serious indifference to the consequences. It indicates the driver was alert to the risk involved in his conduct but continued with it regardless and was indifferent to the possible consequences. Members of the public need not have been endangered (see Kane v Dureau [1911] VLR 293; Hayes v Swain RTR 40).

Dangerous driving involves driving that has caused significant risk to the public, over and above the ordinary risk associated with driving (see 12.8.2 Causing death or grievous bodily harm by dangerous driving).

The test for driving without due care and attention was stated by Grey J in HW v The Police (2010) MVR 218 at 222:

The offence of driving without due care is committed when there is a material departure from the high standard of care which is due by anybody who drives a motor vehicle. The standard of care is one which must relate to all the surrounding circumstances.

The test as to the difference between driving without due care and attention and negligent driving was discussed by Burbury CJ in Price v Fletcher (1972) Tas SR 35. The difference is that although driving without due care and attention would amount to negligence, negligence includes negligent acts and omissions whereas driving without due care and attention would only amount to omissions.

Therefore, the distinction between driving without due care and attention and negligent driving is a fine one. Generally speaking, a person who is guilty of driving without due care and attention would also be guilty of the offence of negligent driving causing death where a death has occurred. However, prosecutors should only prefer a charge of driving without due care and attention where the inattention was relatively minor, was over a very short period of time and where any omission was relatively minor. Otherwise, a charge of negligent driving should be preferred.

The difference between reckless and dangerous driving is a matter of degree. Significant penalties are available under the Traffic Act for reckless driving. Therefore, in determining whether a person should be charged with reckless or dangerous driving, dangerous driving should be reserved for only the most serious cases.

While it is not possible to be totally prescriptive of all the circumstances where dangerous driving should be charged, the driving should include some of the following factors:

• Significant speed and/or significant impairment due to alcohol and/or drugs
• Prolonged course of what could be said to be dangerous driving, particularly in a built-up area, or where traffic is heavy or the road is busy
• A total disregard for road signs, including traffic lights
• Member(s) of the public* have, in fact, been endangered (*includes passengers)
• Escaping police pursuit
• Degree of sleep deprivation

(See Banks v Tasmania [2019] TASCCA 1, in particular [26]-[37])

A charge of reckless driving should be preferred where:

• Although there was a potential risk to the public, no member of the public was, in fact, put at risk
• The driving was of a short duration, and did not occur in a built-up area
• Speed, although significant, was not at an extreme level for the conditions of the road and any alcohol and/or drugs present in the driver’s system were not of a high range

12.10 Drug charges

12.10.1 Introduction

The Misuse of Drugs Act 2001 provides for a number of indictable and summary offences in relation to the sale, possession, manufacturing and growing of prohibited drugs. There is some overlap between the summary and indictable offences.

The indictable offences include:

• manufacturing a controlled drug for sale (s6(1))
• cultivating a controlled plant for sale (s7)
• trafficking in a controlled substance (s12)

In addition, Parliament has enacted summary versions of:

• trafficking in a controlled substance (s27AA)
• cultivating a controlled plant for sale (s22A)

All the above provisions have a deeming provision that where a person has a trafficable quantity of a drug as defined by the Act then a person is presumed to have the intention or belief to sell unless they prove to the contrary on the balance of probabilities.

The elements of both the summary and indictable versions of trafficking in a controlled substance and cultivating a controlled plant for sale are identical. Therefore, a determination must be made whether to charge a person summarily or on indictment.

In cases involving cannabis, where there are 70 or fewer plants, or less than 2 kilograms of cannabis product, summary charges are to be preferred unless it appears the conduct is part of a series and/or where it appears the person is operating a commercial enterprise.

In the case of other controlled drugs, where the value of the drugs involved is less than $100,000, summary charges are to be preferred unless it appears the conduct is part of a series and/or where it appears the person is operating a commercial enterprise.

As Parliament has made this specific enactment, generally where a person is found to be in possession of in excess of the trafficable quantity they should be charged with trafficking in a controlled substance or cultivating a controlled plant for sale either summarily or on indictment, even where there is no other evidence of an intention to sell. Of course, prosecutors are to bear in mind there must be a reasonable prospect of conviction. Thus, any actual positive evidence of a lack of intention to sell should be considered. Where there is no other evidence of an intention to sell, and the amount is less than the trafficable quantity, then the following summary offences should be preferred:

• manufacturing a controlled drug (s21)
• cultivating a controlled plant (s22)
• possessing, using or administering a controlled drug (s24)
• possessing or using a controlled plant or its products (s25)

Sections 26 and 27 of the Act also provide for the summary offence of selling a controlled drug or plant. A person who sells a controlled drug or plant by definition under the Act has trafficked in that drug and would be liable to be charged with trafficking in a controlled substance (s12 or s27AA).

Thus, Parliament has provided that where a person sells a controlled drug they can be charged with either the indictable crime of trafficking in a controlled substance, the summary equivalent, or the summary offence of selling a controlled drug or plant. Where it is alleged that a person has sold more than the trafficable quantity of a particular drug on any one occasion then the preferred charge should be trafficking. Further, where the sale is less than the trafficable quantity but there is evidence of numerous sales, the charge should also be trafficking.

The charge of selling a controlled drug or plant should only be preferred where there is a small number of sales of an amount under the trafficable quantity where it could not be said to be a commercial operation.

12.10.2 Giretti count

In cases where it is alleged that a person carried on a business of trafficking, a Giretti count is to be preferred. In order to establish trafficking on this basis, it must be shown that the accused was engaged in a ‘continuous drug selling activity of a commercial and systematic kind’ (see Giretti v R (1986) 24 A Crim R 112; Roland v Tasmania [2016] TASCCA 20 at [6]). Thus, a Giretti count may be appropriate where there is evidence of an ongoing drug-dealing business, whether or not the accused was found in possession of any illicit drugs.

Where an indictment is framed on a Giretti basis, an alternative of trafficking on a particular date(s) can be included.

12.10.3 Onus of proof regarding possession

Section 12(1) of the Act makes it a crime to traffic in a prohibited substance. Trafficking includes possessing a substance with the intention of selling it. Where a person has possessed a trafficable quantity he or she is presumed to have intended to have the drug for sale unless he or she proves on the balance of probabilities he or she did not have that intention (s12(2)).

Section 3(3) of the Act provides:

Without restricting the generality of the expression "possession", a controlled substance is taken to be in a person's possession for the purposes of this Act so long as it is on any land or premises occupied by the person, or is enjoyed by the person in any place or is in the person's order and disposition, unless the person proves that he or she had no knowledge of the substance.

Thus, where a controlled substance is found on a person’s property that person is deemed to be in possession of that substance unless he or she can prove to the contrary. However, this provision does not apply to the trafficking provision in s12 of the Act. In Momcilovic v R [2011] HCA 34 the majority of the High Court held on construction principles applicable to the Misuse of Drugs Act 2001 that the Victorian equivalent of s3(3) (the extended definition of the expression possession) was inapplicable to a charge of the equivalent s12(1) of the Act (trafficking) and relying on s12(2) the rebuttable presumption of the accused having the relevant intention once the accused is proved to have possessed a trafficable quantity of a controlled substance.

In other words, it is not sufficient to prosecute that the accused, in the extended definition of possession, possessed a trafficable quantity. Possession involves knowledge and control. Bell J at [666] states what the common law requires for possession:

The common law requires more in order to prove that an accused is in possession of a thing than establishing that the thing is in premises occupied by the accused. The accused must have actual or constructive control of the thing and intend to exercise that control to the exclusion of those not acting in concert with him or her. Proof of the intention requires that the accused know of the existence of the thing. However, knowledge alone may not establish the intention. An occupier of premises may have knowledge of the presence of a prohibited drug in the premises and yet not be in possession of the drug. The prosecution of an accused who is in joint occupation of premises for an offence arising out of the seizure of drugs in the premises will commonly present the difficulty of excluding the reasonable possibility that the drugs were in the possession of another of the occupants.

Thus, prosecutors must consider when determining whether to indict a person for trafficking, and the case is relying on possession, whether there is sufficient evidence to indicate the person knew of the existence of the drug and was exercising control over it.

When conducting a trafficking trial, prosecutors should ensure neither they nor the trial judge refer to the Misuse of Drugs Act definition of possession when referring to trafficking when directing the jury. However, as s36A(3) of the Act provides that a person who is indicted for but found not guilty of trafficking under s12(1) may be convicted of an offence under s24 (possessing, using or administering a controlled drug) or s25 (possessing or using a controlled plant or its products) a proper direction on those alternatives if they are to be left ought proceed on the s3(3) definition.

12.10.4 Forfeiture of property on conviction

Section 38 of the Misuse of Drugs Act 2001 provides:

A court that convicts or finds a person guilty of an offence under this Act may, in addition to any other order that it may make, order that any property of the person used in the commission of the offence is forfeited to the Crown.

This provision is very broad and will include items used in the growing or manufacturing of an illicit drug under the Act. However, it could also include such property as real estate or vehicles used in the transportation of such drugs. Whether an application for such property is made under the Act should depend on the type of criminal activity and the relevance of the specific item of property to that activity. In other words, the use that was ordinarily made and as intended under the Act. Obviously, prosecutors should apply for all drugs to be forfeited, and any equipment used to manufacture, grow or produce those drugs together with any money used in the commission of the crime. Where it is thought that other items such as real estate or vehicles should be forfeited, the Director or Deputy Director should be consulted.

Prosecutors should also consider s11 of the Crime (Confiscation of Profits) Act 1993 for forfeiture of tainted property or pecuniary penalty order for profits made as a result of the crime.

12.10.5 Money laundering

On occasions an accused person will be found in possession of a controlled substance and a significant amount of cash or property. However, there will be no evidence of any actual sales and a trafficking charge will be based on possession of the drug with the intention of trafficking in the drug. In such circumstances, it may not be possible to prove the money is tainted property.

Therefore, a charge pursuant to ss66A or B of the Crime (Confiscation of Profits) Act 1993 should be considered. Section 66A creates various crimes including knowingly or recklessly dealing with the proceeds of crime. Section 66B makes it a crime to deal with property suspected of being the proceeds of crime unless an accused can show that he or she had no reasonable grounds to suspect the property was the proceeds of crime. Upon conviction the money or property will then be forfeited as tainted property.

12.10.6 Sentencing

Trafficking can result in significant variation in sentences due to the wide variety of circumstances in which the crime may be committed (see DPP v Williamson [2013] TASCCA 6 at [13]). Prosecutors should be aware that the following factors are highly relevant to the sentencing of drug offenders:

• motive – was the offence of a commercial nature or, alternatively, was the accused supporting a drug habit?
• role of the accused and the amount of profit received from the drugs
• prevalence of the drug in the community
• harm the drug can cause (see Stebbins v Tasmania [2016] TASCCA 16 per Estcourt J at [66]-[69]; Sweetman v Tasmania [2016] TASCCA 5)
• value of the drug
• scale of the operation and the length of time of the operation (see DPP v Williamson supra; Stebbins v Tasmania supra per Estcourt J at [46]-[47])

The major considerations for trafficking for commercial gain are general deterrence and punishment (see Stebbins v Tasmania supra per Pearce J at [114]).

12.11 False statutory declarations and other false statements

Making a false statutory declaration or making other false statements in particular circumstances is a crime contrary to s113 of the Criminal Code. Section 72 of the Justices Act 1959 allows an accused person to elect that a charge brought pursuant to s113 of the Criminal Code be tried summarily, provided the prosecutor of the complaint consents.

Ordinarily, consent should be given unless:

• there are other charges arising out of the same course of conduct that must be dealt with on indictment; or
• the prosecutor is of the view that the conduct alleged is so serious as to warrant the crime being tried on indictment

12.12 Indecent assault

Parliament has enacted the summary offence of assault with indecent intent contrary to s35 of the Police Offences Act 1935 and the indictable crime of indecent assault contrary to s127 of the Criminal Code. Both these offences cover similar conduct.

The summary offence should be preferred when any touching (that is indecent) is above the clothing. Where the touching is under the clothing (and is indecent) charges pursuant to s127 of the Criminal Code should be preferred.

Where there is more than one act or occasion involving a combination of the above activities, indecent assault charges for all offences can be laid to avoid more than one hearing or where there are other indictable offences committed arising out of the same facts as the sexual assault the indictable crime of indecent assault can be preferred.

The indictable crime of indecent assault may be dealt with summarily if the defendant so elects (s72(1) of the Justices Act 1959). The prosecutor may oppose this if, prior to the election, he or she opposes the application and the justice may proceed on the basis that s72(1) of the Justices Act 1959 has not been enacted (s71(2) of the Justices Act 1959). Similarly, once a hearing has commenced, a magistrate may abandon the hearing and commit the defendant (s72B(2) of the Justices Act 1959).

Where the complaint contains both the electable offence of indecent assault and other non-electable offences that are to be tried on indictment in the Supreme Court, the prosecutor (whether a police prosecutor or a Crown prosecutor) should oppose the electable offence being heard summarily if it is intended the offences will be tried together. In these circumstances, the public interest factors would normally demand that the electable offence be committed to the Supreme Court in order:

• to limit the number of times the complainant and other witnesses are required to give evidence
• to save the community the expense of holding more than one trial
• if there is a conviction, the sentencing judicial officer will be able to sentence on the entire proven conduct

12.13 Perverting justice

A discretion exists as to whether to deal with an act or an omission aimed at, or having a tendency to, undermine the system of law and/or its administration, as a crime or as a summary offence.

The principle consideration is that the charge chosen be appropriate for the nature and extent of the criminal conduct disclosed by the evidence and which would enable a sentencing court to impose a sentence commensurate with the gravity of the conduct having regard to personal and general deterrent.

Prosecutors are often faced with such decisions in the context of traffic offences where an individual provides false particulars to the intercepting officer or investigating official. Such conduct can be dealt with summarily under s15 of the Road Safety (Alcohol and Drugs) Act 1970 or s55A of the Police Offences Act 1935.

Equally, if the evidence discloses the act was one coupled with the requisite intent it could amount to the crime of perverting justice pursuant to s105 of the Criminal Code. In R v Rogerson (1992) CLR 268, Brennan and Toohey JJ said at 280:

The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case (R v Todd [1957] SASR 305 at 328). The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice. The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various. Those ways comprehend, in our opinion, erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions. An act which has a tendency to effect any such impairment is the actus reus of an attempt to pervert the course of justice.

Thus, providing false particulars to the intercepting officer or other officials may amount to perverting justice if it is done so with the intention of preventing a charge being laid and therefore a court hearing and determining a matter.

In respect of perverting justice involving a traffic offence, a further discretion arises pursuant to s72AB of the Justices Act 1959; that is, the giving or withholding of consent for summary disposition. Each case should to be dealt with on its merit.

However, a summary charge should be preferred unless:

• the charge forms part of a course of conduct or series of crimes which are indictable
• the act or omission was such that it was not discovered or corrected by the particular individual within a reasonable time
• the act or omission led to the institution of proceedings against another person
• the act or omission was difficult to detect and/or required considerable resources to uncover the deception
• the circumstances relating to the alleged offender and/or the conduct were such that the penalty provision available in the lower court would not be adequate

The above factors should also guide the prosecutor’s discretion to give or withhold consent in relation to s72AB of the Justices Act 1959. Where a prosecutor exercises such a discretion a written record should be made outlining the reasons for the decision.

A prosecutor should strive for a consistent approach in relation to these matters.

The crime of perverting justice covers a myriad of conduct beyond what is referred to above. Section 105 of the Criminal Code does not create a continuing offence.

The crime requires the commission of an act (not acts) or omission (not omissions) with a requisite state of mind. There is no such crime as attempting to commit perverting justice (see Tasmania v Green & White [2007] TASSC 81). The act or omission does not have to result in the particular consequence intended coming to fruition because the very attempt has a tendency to pervert justice.

There is particular need for restraint in relation to conspiracy charges pursuant to s297(1)(b) of the Criminal Code. Wherever possible, the substantive charges should be laid reflecting the offences actually committed as a consequence of the alleged conspiracy. However, particularly in cases where a number of acts have occurred, each of which could technically amount to a charge of perverting justice, to carry out or obtain one over-arching goal a conspiracy charge should be preferred (see 12.6 Conspiracy).

12.14 Property damage/destruction

In many cases involving property damage or destruction the evidence will disclose conduct which could constitute an offence or a crime. Unlawfully setting fire to property (not structures, buildings or erections) can be dealt with summarily pursuant to s37AA of the Police Offences Act 1935 or on indictment pursuant to ss268A or 269 of the Criminal Code. Similarly, unlawfully injuring or destroying property can be dealt with summarily pursuant to s37(1) of the Police Offences Act 1935 or on indictment pursuant to s273 of the Criminal Code.

Care must be taken to choose a charge which reflects the nature and extent of the criminal conduct disclosed by the evidence and which will enable the court to impose a sentence commensurate with the gravity of the conduct.

These guidelines are to assist prosecutors in the exercise of their discretion. Each case should be approached and assessed on its own merits.

Summary charges should be preferred in all cases unless:

• The property involved is valued at greater than $20,000.00 (s37AA of the Police Offences Act 1935)
• The charge forms part of a course of conduct or series of crimes which are indictable
• The conduct involved serious or potentially serious risk to and /or danger to other property and/or to another person’s life or safety. The risk should be real and substantial, not speculative. Matters such as weather conditions, locality and deliberateness or recklessness may have a bearing on this consideration
• Circumstances relating to the alleged offender and/or to the conduct are such that the penalty provisions available in the lower court would not be adequate
• The co-accused was dealt with on indictment. (Prosecutors should strive for consistency as between co-offenders unless there are compelling reasons not to. Considerations such as age discrepancy and criminal culpability would be relevant here.)

12.15 Robbery

Parliament has enacted the summary offence of stealing with force contrary to s38B of the Police Offences Act 1935 and the indictable crime of robbery contrary to s240(1) of the Criminal Code. Both these offences cover similar conduct.

The summary offence should be preferred where:

• the value of any property stolen or attempted to be stolen is less than $20,000
• the conduct has not resulted in bodily injury to the complainant
• the conduct does not involve any threat of a weapon being used or produced
• there are no other indictable crimes arising out of the same facts

This does not mean that on an individual case we would not consider charging a person with robbery even if the above factors are present.

These guidelines are to assist prosecutors in the exercise of their discretion. Each case should be approached and assessed on its own merits.

Care must be taken to choose a charge which reflects the nature and extent of the criminal conduct disclosed by the evidence and which will enable the court to impose a sentence commensurate with the gravity of the conduct.

12.16 Sea fisheries offences

The Living Marine Resources Management Act 1995 and regulations and rules made under that Act regulate the management of the State sea fisheries resources and provide for a number of indictable and summary offences in relation to the unlawful taking, possession, sale, purchase and trafficking of such resources and the keeping of records in respect of such activities.

The indictable offences are contained in Division 9 of Part 9 of the Act as follows:

• Possession of fish without lawful excuse (s264)
• Trafficking in fish without lawful excuse (s264A)
• In respect of records kept under the Act, knowingly making false or misleading statements or omitting matters to that effect (s265)

Prosecutors should note that a person is taken to traffic in fish if, on one or more occasions, one or any combination of a number of activities specified in s264A(2), involving one or a mixture of fish species, is carried out in relation to fish that are unlawfully taken or possessed. In this regard “unlawfully” includes taking or possessing fish contrary to the Act or any regulation or rule made under the Act.

The Act provides that these indictable offences can be determined in a court of summary jurisdiction if the prosecutor and defendant consent and the court is satisfied that it is proper to do so.

Furthermore, there is a high degree of overlap between these indictable offences and numerous summary offences contained elsewhere in the Act and in the regulations and rules made under the Act.

The decision to proceed on indictment based on the subject matter of the acts or omissions complained of will ordinarily have regard to the following factors or any combination thereof:

• The seriousness and objective gravity of the alleged offence(s), and judicial recognition of the paramountcy of considerations of general deterrence in respect of offences involving the unlawful exploitation of precarious public natural resources
• The quantity of fish involved and the extent of unlawful exploitation of the fishery in question, including consideration of environmental impacts
• The duration of the activity involved, and the degree of persistency in offending
• The amount of commercial or other gain derived or sought to be derived from the activity involved
• The impact of the activity on the integrity of fisheries and environmental management controls and record keeping requirements directed to ensuring the preservation and sustainability of the resource
• Other special features (for example, involving protected marine species or undertaking activity in special areas such as marine reserves and sanctuaries)

Wherever possible, Tasmania Police should consult with the Office before charging with indictable offences.

In respect of convictions for such offences, prosecutors should be aware of the following:

• A finding of guilt for an offence relating to the taking, possession, purchase, sale or trafficking of fish will attract, in addition to any general penalty, a mandatory special penalty equal to 10 times the value of the fish involved (s267(1)) which cannot be reduced or suspended for any reason (s267(2)). The value of the fish involved is calculated in accordance with Fisheries (Value of Fish) Order 2015. Mandatory special penalties also apply to offences involving the use of fishing apparatus (s268).
• Upon conviction for any offence under the Act, provision is made in Division 4 of Part 9 of the Act (ss225-233) for the forfeiture of fish to which the offence relates, and of any fishing apparatus, equipment, vessel or other things used in, or in connection with, the commission of the offence, or any proceeds of sale thereof.
• Provision is made in Division 6 of Part 9 of the Act (ss242-250) for the allocation of demerit points to convicted offenders and to any licence under which an offender was operating when the offence was committed. The number of demerit points to be allocated is calculated by reference to the penalty imposed in terms of the amount of any fine (including special penalties) or the number of months of suspended or actual imprisonment. Demerit points remain in force for a period of five years from the date of conviction. Depending on the seriousness of the offence involved, an accumulation of 200 or more demerit points can result in the permanent or temporary disqualification of an offender from obtaining or holding a licence, and temporary suspension of a licence.
• In an appropriate case, application can be made under the Act (s251) for a control order restricting or prohibiting specified activities of an offender for a specified period.
• Prosecutors should also consider applicability of the provisions of the Crime (Confiscation of Profits) Act 1993 for the forfeiture of tainted property in relation to the offence or the making of a pecuniary penalty order in respect of profits made as a result of the commission of the offence.

12.17 Stalking and bullying

Section 192 of the Criminal Code prohibits stalking and bullying. A prosecution under this section must not be commenced without the consent of the Director. Pursuant to s72(4) of the Justices Act 1959 a charge of stalking or bullying can be tried summarily with the consent of the prosecutor of the complaint. At the time of authorisation the Director will indicate whether consent is given for the matter to be tried summarily.

Stalking and bullying occurs where a person pursues a course of conduct with the intention of causing another person physical or mental harm, including self-harm, or extreme humiliation or to be apprehensive or fearful. A person is deemed to have such an intention if a course of conduct is pursued which he or she knew or ought to have known was likely to cause another person physical or mental harm, including self-harm or extreme humiliation, or to be apprehensive or fearful (s192(3) of the Criminal Code).

The Criminal Code provides for a wide range of actions that could constitute the course of conduct that amounts to stalking and bullying (s192(1)(a)-(j)). Such conduct can include acting in any way “that could reasonably be expected to cause the other person to be apprehensive or fearful”. It can also include actions that are not illegal per se and actions that could constitute other offences. There is a particular overlap with the following offences or court orders:

• assault
• trespass
• restraint orders (s106B of the Justices Act 1959)
• emotional abuse or intimidation (s9 of the Family Violence Act 2004)
• family violence orders (ss14 and 16 of the Family Violence Act 2004)

A person pursues a course of conduct if the conduct is sustained or the conduct occurs on more than one occasion (s192(2)). It is therefore a continuing offence.

Generally, the Director’s consent to charge with stalking and bullying (as distinct from pursuing individual charges or preventative court orders) will only be given in circumstances where:

• the course of conduct is extremely serious
• the course of conduct has continued over an extensive period of time
• lesser charges, restraint orders or other proceedings have failed to stop the conduct

Ultimately it is a question of judgment. In determining whether to consent to a charge of stalking and bullying, the following considerations will apply:

• The number and type of incidents that have been directed at a complainant
• The period of time over which the incidents have occurred
• The planning and motivation for the conduct, e.g. where the conduct has occurred over a short time span and was not motivated to intimidate a complainant over an extended period of time then individual charges should be preferred.
• Have individual charges or other court measures failed to stop the conduct? If so, a charge of stalking should be preferred.
• In pursuing the conduct did other serious crimes occur, i.e. sexual assaults or the distribution of child exploitation material? If so, a charge of stalking and bullying should be preferred.
• The effect the conduct has had on the complainant
• Does the complainant have another remedy such as a complaint to the Anti-Discrimination Commission or to an employer or school that is taking disciplinary action?

Youths who engage in stalking and bullying will only be charged in exceptional cases where the conduct is extremely serious, there has been a considerable adverse consequence to the complainant and there is no other appropriate manner to deal with the matter. In circumstances where the conduct has taken place at the youth’s school, the Director will consider any disciplinary action that may have been taken by the school or the Department of Education in respect of the alleged conduct. Tasmania Police should consider the diversionary procedures set out in Part 2 of the Youth Justice Act 1997.

Where the complaint contains a charge of stalking and bullying and associated summary charges, all associated charges should be adjourned sine die pending the outcome of the indictable offence. The file will be reviewed by the Office to determine whether the associated summary charges can be heard and determined by the Supreme Court. In these circumstances, the public interest factors would normally demand that where possible all associated charges should be finalised in the one proceeding in order:

• to limit the number of times the complainant and other witnesses are required to give evidence
• to save the community the expense of holding more than one trial
• if there is a conviction, the sentencing judicial officer will be able to sentence on the entire proven conduct

12.18 Strangulation

Parliament has enacted the crime of strangulation (see s170B of the Criminal Code). Cases involving choking, suffocation or strangulation, particularly in a family violence context, must be regarded as grave criminal conduct.

The crime requires proof that an accused person intentionally and unlawfully choked, suffocated or strangled the complainant.

The terms “chokes”, “suffocates”, and “strangles” are not defined in the Criminal Code. The conduct must be capable of affecting the breath or blood flow to or from the head while the application of force is taking place: GS v R; DPP (NSW) v GS [2022] NSWCCA 65, per Payne JA at [61]-[63] with whom Rothman and Harrison JJ agreed. The crime does not require proof of any consequence.

Prosecutors should consider whether or not to obtain expert medical evidence to address the question whether the pressure applied was capable of affecting the breath of the person or the flow of blood to or from the head: see GS v R (ibid) at [64]. Such evidence may not be necessary when there is evidence that the complainant was unable to breathe or lost consciousness, however the application of force to the head or neck which does not cause that result can still be relied on.

As with every decision to prosecute the first question is whether there is a reasonable prospect of conviction. If there is not a reasonable prospect of proving that the accused intentionally and unlawfully choked, suffocated or strangled the complainant then the accused cannot be charged with strangulation.

However, even when there is a reasonable prospect of conviction for a charge of strangulation, prosecutorial discretion will be exercised to determine the appropriate charge. Consideration will be given to the facts and circumstances of each individual matter. The charges that may be considered include:

• Attempted murder, contrary to 333A and 158 of the Criminal Code;
• Disabling with intent to facilitate the commission of an offence, contrary to section 168 of the Criminal Code;
• Committing an unlawful act intended to cause bodily harm, contrary to section 170 of the Criminal Code;
• Strangulation, contrary to s 170B of the Criminal Code;
• Causing grievous bodily harm, contrary to section 172 of the Criminal Code;
• Assault, contrary to s 184 of the Criminal Code; and
• Assault, contrary to s 35 of the Police Offences Act.

In practice, most often the factual circumstances of the offending will result in consideration being given to charging an accused with strangulation, or indictable assault, or summary assault.

Factors to be considered in determining whether to charge an accused with strangulation, as opposed to indictable assault, include:

• the extent to which the conduct was capable of affecting the breath or blood flow to or from the head of the victim (noting that slight pressure may be capable of causing such a consequence);
• whether the victim in fact experienced loss of breath or restriction of blood flow to or from the head;
• whether the victim became unconscious or received any other physical injuries;
• whether the strangulation was part of a series of events;
• the length of time of the strangulation, suffocation or choking conduct;
• the nature of the relationship between the parties;
• whether there were any accompanying threats (i.e. a threat to kill); and
• whether there was any additional violence.

If there is unambiguous evidence that the accused intended to choke, suffocate or strangle the victim and the conduct was capable of restricting the breath or blood flow to and from the victims head, or did in fact affect the breath or blood flow to and from the victims head, a charge of strangulation is to be preferred.

Some examples of conduct that may be charged as strangulation include:

• One or two hands being held around the neck of the victim applying pressure to their neck;
• A head lock or chokehold applied to the victim;
• A ligature, for example a scarf or belt tightened around the neck of the victim;
• Pressure on the neck of the victim from a foot or a knee;
• Putting a hand over the victims mouth and nose; and
• Any force or suppression to applied to a victim to cause a restriction of breath.

Factors to be considered in determining whether to charge an accused with summary or indictable assault as opposed to strangulation include:

• the amount of pressure used and where the pressure was applied, i.e. the extent to which the pressure was capable of effecting the breath or the flow of blood to or from the head of the victim;
• the length of time of the strangulation, suffocation or choking conduct;
• whether the accused voluntarily desisted;
• whether the victim received any injuries;
• whether there was additional violence; and
• whether children were present.

Where a person chokes, suffocates or strangles a person and renders that person incapable of resistance with an intent to commit another offence or flee an offence, a charge contrary s168 of the Criminal Code, together with a charge for the completed or attempted crime should be preferred (for example, a charge of disabling to aid commission of offence and rape, as opposed to strangulation and rape). NB: Resistance includes the inability to call for help: R v Osborne [1987] 1 Q d R 96 at 98 and R v Lansbury [1988] 2 Qd R 180.

In circumstances where slight pressure is placed on the neck, in a way that is incapable of effecting the breath or the flow of blood to or from the head, there will not be a reasonable prospect of conviction for strangulation and a charge of assault may be preferred. Whether the assault should be charged on indictment or complaint primarily depends on the extent of any injuries suffered by the complainant. (see: assault charging guidelines)

Of course, deciding the appropriate category of charge is a matter of judgment not science. The Office welcomes discussion about charging decisions before they are made.

With regards to the gravity of the conduct generally, it is well recognised that the acts of strangulation, choking and suffocation are inherently dangerous.

See Hardwick v Tasmania [2020] TASCCA 2 per Martin AJ, with whom Pearce J agreed, at [50], [52] and [63]):

The dangers attached to choking have been well documented over many years, particularly in homicide cases. Judges sitting in criminal law have become familiar with evidence of pathologists that death in choking cases is usually as a result of pressure applied to the carotid arteries, thereby blocking the arterial blood supply to the brain. In addressing this issue, the sentencing judge was making general observations about the dangers associated with choking and how the application of pressure to the throat "can easily result in death or serious injury". It was appropriate, and indeed necessary, for his Honour to have regard to the dangers attached to the conduct of the appellant as part of his overall assessment of the gravity of the criminal conduct. As his Honour observed, the risk of death or serious injury, and of long-term physical and psychological impacts, "were clearly apparent" in the appellant's criminal conduct… (footnotes omitted, emphasis added)

and, DPP v Johnson [2020] TASCCA 4 per Geason J with whom Wood J agreed at [33]:

The fact that the respondent's conduct included suffocation has significance to the assessment of the objective seriousness of the offending. Suffocation should be treated with the same level of seriousness as is afforded strangulation or throttling. Such conduct is inherently dangerous, and capable of causing serious consequences within a very short period. It renders victims incapable of acting to protect themselves. As Estcourt J observed in DPP v Foster [2019] TASCCA 15 at [26]-[27], it is a form of dominance and control which has the potential to cause grave psychological harm, serious injury and even death. (emphasis added)

and DPP v Foster [2019] TASCCA per Estcourt J at [26]-[27]:

Each of the identified incidents involved vicious and cowardly attacks by the respondent on a woman. Lest it be thought that grabbing the complainant by the throat and applying pressure is somehow less insidious than punching or kicking, it has been noted in an article by Heather Douglas and Robin Fitzgerald entitled "Strangulation, Domestic Violence and the Legal Response", published in the [2014] SydLawRw 11; (2014) 36 (2) Sydney Law Review 231, that strangulation is a form of power and control that can have devastating psychological long-term effects on its victims in addition to a potentially fatal outcome.

Choking can cause loss of consciousness and can cause death quickly. It has been suggested that death can occur within seven to fourteen seconds. Additionally, underlying internal injuries caused by the pressure applied to the throat can cause swelling which may develop gradually over days and airways obstruction causing death may be delayed. (emphasis added)

For a discussion about the meaning of “intentionally chokes” in the NSW Crimes Act 1900 see GS v R; Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65.

12.19 Trafficking in firearms

The Firearms Act 1996 provides for a number of indictable and summary offences in relation to acquiring, possessing, using and dealing in firearms. There is some overlap between the summary and indictable offences.

The indictable offences include:

• possess or use a prohibited firearm (s9(1A))
• dealing in firearms without holding a firearms dealer licence (s11)
• possession of stolen firearms (s107A)* may be tried summarily
• unlawful trafficking in firearms (s110A)
• conspiracy to commit an offence against a foreign firearms law (s120A(1))
• commit an offence against a foreign firearms law (s120A(2))

The ‘overlapping’ summary offences include:

• mailing any firearm, firearm part or ammunition to an address in Tasmania, receiving any firearm, firearm part or ammunition by mail at an address in Tasmania, requesting another person top send any firearm, firearm part or ammunition by mail to an address in Tasmania (s100(1), (2) and (3)).
• delivery of any firearm, firearm part or ammunition (s102)
• transporting a firearm or forearm part and ammunition (s103)
• conveying a firearm or ammunition (s104)
• selling or supplying ammunition without a licence or selling or supplying ammunition to a person who is not the holder of a licence for a firearm which takes that ammunition (s105)
• possession of a firearm part (s107)
• possession or use of a firearm (s9(1))

Due to the overlap of many of these provisions in many cases a determination must be made whether to charge a person summarily or on indictment. Whether a matter proceeds on complaint or indictment is a matter of prosecutorial discretion. Only objectively serious matters should be prosecuted on indictment.

Unlawful trafficking in firearms contrary to s 110A is reserved for cases involving serious unlawful activity. Factors to be considered include:

• Whether the conduct involves criminality of a greater order than the summary offences;
• Whether or not the firearms were to be used for a serious criminal purpose;
• Whether or not the conduct included a commercial context (noting that it is not necessary for the offender to have any belief or intention as to the future sale of the firearms);

As Martin AJ, with whom Pearce J agreed, said at [33] in Attorney-General’s Reference No 1 of 2022 [2024] TASCCA 2:

It is tolerably clear that the intention of the legislature was to capture trading or dealing in firearms involving criminality of a greater order than the summary offences such as mere possession of a firearm without an appropriate licence. It would also appear that the legislature intended to make the offence of trafficking easier to prove than reliance solely upon the common law meaning of trafficking, but only if the firearm involved is registerable, but not registered.

Note: Prohibited firearms are registerable. All firearms other than those referred to in s 74(2) of the Firearms Act 1996 are registerable firearms, see Tasmania v Morrison [2021] TASSC 42 Porter AJ at [33]-[35]

Where those factors are not present in a particular matter, or there is otherwise doubt as to whether the conduct amounts to unlawful trafficking in firearms contrary to section 110A, advice may be sought from the Director of Public Prosecutions.

The ‘defence’ of honest and reasonable mistake of fact in s 14 of the Criminal Code is available (through the operation of s 4(1) of the Code)1. If the issue of honest and reasonable mistake of fact is raised on the evidence, the Crown bears the onus of negativing such mistake beyond reasonable doubt.

Note: Section 110A is a definition type of provision. Subsection (1) creates the crime, and subsection (2) sets out the elements of the crime created by subsection (1), see Tasmania v Morrison [2021] TASSC 42 per Porter AJ at [33] and [36].

Similarly, in most cases involving possession or use of a prohibited firearm the summary offence of possession or use of a firearm contrary to section 9(1) of the Act should be preferred. The indictable offence of possession of a prohibited firearm should only be charged where:

• There is a large quantity of prohibited firearms;
• The firearm was to be used for a criminal purposes;
• The firearm is classified as being in Item 1 of Schedule 1 of the Firearms Act 1996, ie, a machine gun, sub-machine gun or another firearm capable of propelling projectiles in rapid succession. This should not include gel blasters.

It is not proper to indict a person for an offence under the Firearms Act 1996 where the facts would normally warrant a summary charge merely because the statutory time limit for the charging of a summary offence has expired. However, if there are other more serious indictable charges arising out of the same circumstances as the alleged offences which would normally be dealt with summarily, then these matters can be dealt with as an indictable offence in order for the same court to deal with all the circumstances involving the matters.