Criminal Law and Procedure
Structure your criminal answers.
Criminal Law and Procedure is built on elements. Each offence has physical and fault elements, and a strong answer establishes each on the facts. It rewards precision and a methodical structure. The same approach applies whether the question concerns the offence or a defence.
The subject, module by module
Study Criminal Law one module at a time
Each module has a drill bank with Pass and H1 model answers and examiner's comments, and modules 1 to 9 have a one page guide. Work the modules in order or jump to the one your course is up to.
The physical and fault elements, causation and voluntary conductGuide · Drills (13)
Assault and the offences against the person, element by elementGuide · Drills (13)
Unlawful and dangerous act manslaughter, negligent manslaughter and omissionsGuide · Drills: UDAM (13) · negligence and omissions (11)
The presumption of sanity, the defence and the automatism divideGuide · Drills (11)
The offences, consent under the Victorian reforms, and the fault elementsGuide · Drills (8)
The procedure side: arrest, search and the limits on police powersDrills (7)
The subject in outline
Criminal Law and Procedure in outline
Criminal liability in Victoria is governed by the common law and the Crimes Act 1958 (Vic). Murder, manslaughter and common assault are common law offences. The graded offences against the person, theft and complicity are statutory.
Every offence resolves into physical elements and fault elements. The prosecution must prove every element beyond reasonable doubt (Woolmington v DPP [1935] AC 462).
The elements inquiry runs in a fixed order. 1 Voluntariness Only a willed, voluntary act attracts criminal responsibility (Ryan v The Queen (1967) 121 CLR 205). 2 Actus reus The physical elements must be established. 3 Causation Where the offence requires a result, the act must be a substantial and operating cause of the result or contribute significantly to it (Royall v The Queen (1991) 172 CLR 378). 4 Mens rea The fault element is intention, recklessness or criminal negligence. Recklessness is foresight that the harm was probable rather than merely possible (R v Crabbe (1985) 156 CLR 464). Criminal negligence is judged objectively (Nydam v The Queen [1977] VR 430). 5 No lawful justification or excuse.
For the statutory defences the accused carries an evidential burden. The prosecution must then disprove the defence beyond reasonable doubt (Crimes Act 1958 (Vic) s 322I). Mental impairment is the exception. The party raising it proves it on the balance of probabilities (Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 21).
The material is organised into nine topics:
- Foundations (voluntariness, causation, coincidence, omissions, onus)
- Non-fatal offences (common assault and the graded statutory offences)
- Murder
- Manslaughter (by unlawful and dangerous act, by criminal negligence)
- Theft
- Complicity
- Defences (self-defence, duress, emergency, intoxication)
- Mental impairment and automatism
- Sexual offences
A critical case
Royall v The Queen (1991) 172 CLR 378
Facts: Kelly Healey lived with Royall in his sixth-floor flat. On the evening of 15 November 1986 they argued violently. Royall admitted punching her face, shaking her and pulling her hair. The confined bathroom showed signs of forced entry and of a struggle. In the early hours of 16 November she fell from the bathroom window to her death. The Crown put three alternatives: Royall pushed her out, she fell retreating from his attack, or she jumped to escape in well-founded fear of life-threatening violence. He was convicted of murder.
Issue: Does an accused's violence cause death where the deceased jumps to escape it?
Decision: The High Court held that the accused causes the death where the deceased, in well-founded fear of life-threatening violence induced by the accused's conduct, is killed in an escape that is a natural consequence of that fear. The accused's act need not be the sole cause of death. It is enough that the act was a substantial or significant cause. The connection between the act and the death is for the jury as a matter of common sense. Causation remains separate from mens rea. Royall's appeal was dismissed.
Note: Royall was charged under s 18 of the Crimes Act 1900 (NSW), which speaks of intent to inflict grievous bodily harm and of reckless indifference to human life — in Victoria, where murder is a common law offence, the mens rea equivalents are intent to cause really serious injury and foresight that death or really serious injury was probable (R v Crabbe (1985) 156 CLR 464).
Statutes to remember
Proof
Jury Directions Act 2015 (Vic) ss 63–64
Homicide
Crimes Act 1958 (Vic) ss 3, 4A, 5, 9AA
Offences against the person
Crimes Act 1958 (Vic) ss 15, 15A–18, 24, 320
Theft
Crimes Act 1958 (Vic) ss 71–74
Complicity
Crimes Act 1958 (Vic) ss 323–324C
Defences
Crimes Act 1958 (Vic) ss 322G–322T
Mental impairment
Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 20–21
Effectively, the Crimes Act 1958 (Vic) states the punishments for the common law homicides: level 1 imprisonment (life) for murder and level 2 imprisonment (25 years) for manslaughter. The same Act defines the injury offences, theft, complicity and the statutory defences. The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) states the mental impairment defence. The accused must establish the defence on the balance of probabilities. The Jury Directions Act 2015 (Vic) fixes what a jury may be told about proof beyond reasonable doubt.
The law is stated as at 20 August 2026.
The challenge
Where students get stuck
Marks are most often lost when guilt is asserted rather than each element established. The physical elements are conduct, circumstances and result, and the fault elements are intention, knowledge, recklessness and negligence. Causation, the standard of proof and the onus on a defence are recurring difficulties. Defences such as self defence, duress, mental impairment and intoxication each have their own elements and need to be argued separately. The procedure topics, including charge, bail, committal, trial and appeals, are often given too little attention.
How the guides handle it
The guides work element by element. For each offence they state the rule and its source in the Crimes Act 1958 and the leading cases, then establish each physical and fault element on the facts. Each defence gets its own short analysis. The fault element and the onus of proof get the most room. On the procedure side, the arrest and police powers drills cover arrest, search and the limits on police powers.
The method
One method, every problem
Four steps run every argument: name the issue, state the rule, apply it to the facts, conclude. Almost every legal rule shares a skeletal structure: it takes one of six shapes, and any of those shapes may carry a twist. Learn the six shapes and one twist →
Common questions
Criminal Law & Procedure: common questions
Does this cover the offences and the procedure?
The offences and defences, yes, in full. Procedure is covered through the arrest and police powers drills. Charge, bail, committal, trial and appeals are not covered yet.
My answers are vague. What fixes that?
Proving each element on the facts. That fixes the vagueness fast.
Is this Victorian law?
Yes. The guides and drills state Victorian law: the common law offences of murder, manslaughter and common assault, the statutory offences and defences in the Crimes Act 1958 (Vic), and the mental impairment defence under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). If you study in another State or Territory, the structure of elements, causation and fault carries over, but check your own Code or Crimes Act for the offence definitions and the defence provisions.
Who has to prove a defence?
For self-defence, duress and sudden or extraordinary emergency the accused carries only an evidential burden: there must be some evidence that raises the defence. Once it is raised, the prosecution must disprove it beyond reasonable doubt (Crimes Act 1958 (Vic) s 322I). Mental impairment is different: the party who raises it must prove it on the balance of probabilities (Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 21). Say which burden applies before you argue the defence. Markers look for it.
UDAM or negligent manslaughter: which do I argue?
Ask what the accused did. If there was a deliberate unlawful act that a reasonable person in the accused's position would have realised exposed the victim to an appreciable risk of serious injury, run unlawful and dangerous act manslaughter (Wilson v The Queen). In Victoria a single punch or strike to the head or neck is deemed dangerous (Crimes Act 1958 (Vic) s 4A). If the death came from carelessness rather than a deliberate unlawful act, or from an omission where there was a duty to act, run negligent manslaughter: the conduct must fall so far short of the standard of care a reasonable person would exercise, and involve such a high risk of death or really serious injury, that it merits criminal punishment (Nydam v The Queen). In a problem question you often run both in the alternative. Keep them in separate paragraphs; the tests are different.
How does complicity work in Victoria after Rohan?
Complicity in Victoria is statutory. Under the Crimes Act 1958 (Vic) s 323 a person is involved in an offence if they intentionally assist, encourage or direct its commission, or enter into an agreement, arrangement or understanding to commit it, and under s 324(1) an involved person is taken to have committed the offence. The common law doctrines of aiding and abetting, acting in concert and extended common purpose no longer apply to offences committed on or after 1 November 2014 (s 324C). Rohan v The King (2024) is the High Court's reading of s 323: active participation or agreement in a shared criminal enterprise broadens criminal liability, even if the secondary party did not foresee or know every specific detail of the crime. Argue s 323 on the facts, not the old labels.
What is mens rea, in plain terms?
Mens rea is the fault element: the state of mind the prosecution must prove alongside the physical act. In Victoria there are three main kinds. Intention: the accused meant to bring about the result; for murder, meant to kill or to cause really serious injury. Recklessness: the accused foresaw that the result was probable, not merely possible, and went ahead anyway (R v Crabbe). Criminal negligence: no state of mind is needed; the conduct fell so far below the standard of a reasonable person, with such a high risk of death or really serious injury, that it deserves criminal punishment (Nydam v The Queen). Knowledge matters for some statutory offences and for complicity. Every offence has its own fault element, so name the one the offence requires before you apply it, and show that it coincided in time with the physical element.
Related subjects: Evidence & Proof, Constitutional Law, Torts. See all subjects.
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Step through the interactive method, then work the practice bank: single issue drills and full exam scenarios with Pass and H1 model answers and examiner's comments.