2. LIV Criminal Law — Currency & Automatic-Fail Watch (Vic)¶
Scope and currency
Exam reference · law current to ~June 2026 · the points an out-of-date answer fails on · confirmed dates are operative commencements; amber = not yet in force, scope unsettled, or pending verification
You are examined on the law as it stands at the assessment date. The items below are where pre-reform law or pre-reform language is an automatic-fail risk. Work the prohibited-terminology table first — wrong terminology fails regardless of the analysis.
INCLUDE S195X – KNIFE OFFENCE
Justice Legislation Amendment (Family Violence, Stalking and Other Matters) Bill 2025, officially establishes a default two-year minimum term for all Family Violence Intervention Orders (FVIOs), this is due to commence on 10 November 2026.
Prohibited terminology — never write the left column¶
| Do NOT write | Write instead | Why |
|---|---|---|
| Joint criminal enterprise / JCE | involvement by joint commission, s 323(1)© | Common law abolished by s 324C; The King v Rohan (a pseudonym) [2024] HCA 3 |
| Extended JCE / EJCE | extended joint commission, s 323(1)(d) | Aware the offence charged would probably be committed |
| Acting in concert / common purpose / extended common purpose | involvement under s 323(1)©–(d) | Expressly abolished s 324C(2) |
| Aiding and abetting / accessory before the fact | intentional assistance, encouragement or direction, s 323(1)(a) | Giorgianni knowledge of essential facts still governs limb (a) |
| "possibility" (extended limbs) | probability | Elevated standard; do not revert to the old "possibility" test |
| Committal hearing / committal for trial | committal mention / committal case conference; matter committed to the higher court | Old committal abolished — Justice Legislation Amendment (Committals) Act 2025 |
| "the magistrate may discharge the accused" | the magistrate has no power to discharge on the evidence (only a residual time-limit discharge, s 126(4)) | Committal test (s 97) and no-case discharge abolished; committal automatic (s 141) |
| "the jury determines fitness" | the judge determines fitness alone | CMIA Div 2 (operative 26 Apr 2021); jury process suspended |
| SORA "Category 1 / Category 2" | SORA Class ½/¾ | SORA classes are not Sentencing Act categories — never conflate |
Complicity — offences on/after 1 November 2014 (ss 323–324C)¶
| Limb | What it captures | Note |
|---|---|---|
| s 323(1)(a) | Intentionally assists, encourages or directs the offence (accessorial) | Giorgianni — knowledge of the essential facts |
| s 323(1)(b) | Assists/encourages/directs another offence, aware the offence charged would probably be committed in carrying it out | Extended accessorial |
| s 323(1)© | Agreement, arrangement or understanding to commit the offence (joint commission) | Rohan [2024] HCA 3 — no Giorgianni knowledge of essential facts needed where not an element |
| s 323(1)(d) | Agreement to commit another offence, aware the offence charged would probably be committed in carrying it out | Extended joint commission |
| s 325 | Accessory after the fact | Discrete substantive offence — not subsumed into s 323; verify the penalty before relying |
Withdrawal: provided for by s 324(2) (a person who withdraws is not taken to have committed the offence); common law preserved (note to s 324C; White v Ridley [1978] HCA 38; (1978) 140 CLR 342) — must be communicated and effective, with positive steps to undo earlier assistance. NOT s 324C(3), which does not exist (s 324C has only (1)–(2)). A person "involved" is taken to have committed the offence and faces the maximum (s 324(1)). McAuliffe / Johns / Miller are background only.
YJA complicity insertions — verify
ss 324AB, 321AA, 321GA noted as inserted by the Youth Justice Act 2024 (commencing ~30 Sep 2025). Confirm the section numbers, content and in-force status before citing.
Sexual offences — consent & fault¶
Affirmative consent operative 30 July 2023 (ss 36, 36A, 36AA Crimes Act; Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022). Temporal-split trap: conduct before 30 July 2023 is governed by the pre-reform test; conduct on/after by the current test. A fact pattern straddling that date must be analysed under both regimes.
• Reasonable belief (s 36A): now requires the accused to have said or done something to ascertain consent — a genuine but unreasonable belief no longer answers the fault element.
• Circumstances negating consent (s 36AA): asleep/unconscious; so affected by alcohol/drugs as to be incapable of consenting; force or fear; etc. Consent to one act/occasion does not carry to another.
• Child-sex penalty maxima: many reflect increases under the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 — do not use pre-2020 maxima.
Committals & pre-trial cross-examination — filing on/after 28 December 2025¶
• Abolished: the committal test (s 97) and the magistrate's no-case/weight-based power to discharge; committal is now automatic (s 141). A residual procedural discharge survives only for a time-limit breach (s 126(4) — 3 months sexual / 6 months other).
• No committal hearing at all: sexual offences, family-violence offences, stalking (s 21A(1)), and Pt 4.6A direct-to-Supreme matters (e.g. murder).
• Cross-examination at committal: only by leave at the committal mention, and never in the prohibited categories above. Committed on the hand-up brief otherwise.
• Post-uplift cross-examination: s 198A CPA for a witness other than the complainant (substantial reasons in the interests of justice; amended by Act No. 5/2025). Keep distinct from s 198 (general pre-trial evidence) and s 198B (codified Basha).
• Direct indictment: DPP retains the power under s 159 CPA.
Fitness / CMIA¶
Unfitness to be tried is determined by judge alone — CMIA Div 2, operative 26 April 2021. It is not a jury process (jury determination under ss 7(3)(b), 11 is suspended). Presser criteria still supply the test for fitness.
Youth justice¶
Minimum age of criminal responsibility raised to 12 from 30 September 2025 under the Youth Justice Act 2024, which is replacing the criminal provisions of the CYFA 2005. Children's Court appeal provisions migrated to YJA Chapter 8. Doli incapax (12–13) is codified with rebuttal.
YJA staged commencement + 'Adult Time' uplift — verify scope
The YJA commenced in stages; not all chapters were in force together, and interim CYFA amendments bridged the gap before full commencement. The "Adult Time for Violent Crime" expansion of the Children's Court no-jurisdiction (uplift) for serious violent crimes by 16–17 year olds commenced 27 February 2026 (Justice Legislation Amendment (Community Safety) Act 2025). The core Category A serious youth offences are aggravated home invasion and aggravated carjacking; before relying, confirm (a) which YJA chapters are in force, and (b) the exact expanded offence list — including whether aggravated burglary is captured.
Bail — the moving target¶
• 26 Mar 2025 — community safety of "overarching importance" (s 1B(1AA)); remand-as-last-resort for a child removed; new offence to commit an indictable offence while on bail.
• 26 Aug 2025 — armed robbery, aggravated burglary, home invasion and carjacking (and aggravated forms) moved Schedule 2 → Schedule 1 (exceptional circumstances).
• 30 Sep 2025 — s 4F "high degree of probability" test for a high-harm offence committed while already on bail for one of those offences.
• 31 Mar 2026 — "commit an indictable offence while on bail" elevated to the compelling reasons test (with exceptions).
Three threshold tests remain: exceptional circumstances (Sch 1) → show compelling reason (Sch 2 / terrorism) → unacceptable risk (every case, prosecutor's onus). Always verify Schedule placement against the current Act.
New / amended offences 2025–26 — could appear, get them right¶
| Offence / change | Detail | Operative |
|---|---|---|
| Knife crime — s 195X Crimes Act | Use of a knife in committing one of six relevant offences (s 195X(2)): causing serious injury intentionally (s 16)/recklessly (s 17); causing injury (s 18); assault/threaten with intent (s 31(1)(a)); affray (s 195H); violent disorder (s 195I). Max 3 yrs. May be laid/prosecuted concurrently (s 195X(4)) but liability requires conviction on the predicate offence (s 195X(3)). Use, not possession. (Act 54/2025, s 9) | 10 Dec 2025 |
| Carjacking — child victim | Presence of a child under 10 in the vehicle made a standalone element of the carjacking offence | 10 Dec 2025 |
| Aggravated burglary — ram-raiding | Using a vehicle to damage a building to enter it is a form of aggravated burglary (s 77) | 16 Mar 2026 |
| Customer-facing worker harm | New assault/threat offences protecting retail, hospitality, fast-food and passenger-transport workers | 10 Dec 2025 |
| "Post and boast" | Offence to publish material about committing certain serious offences (Crimes Amendment (Performance Crime) Act 2025) | 20 Aug 2025 |
| Machetes | Reclassified as prohibited weapons (Terrorism (Community Protection) and Control of Weapons Amendment Act 2025) | 1 Sep 2025 |
| Serious vilification | Two new serious-vilification offences inserted into the Crimes Act (Anti-vilification and Social Cohesion Act 2025) — confirm commencement | verify |
Stalking, family violence & specialist forums¶
Stalking s 21A amended in 2026 — verify the current text
The Justice Legislation Amendment (Family Violence, Stalking and Other Matters) Act 2026 amended s 21A to clarify its operation (VLRC recommendations). Confirm the current elements and commencement before relying; the s 21A(3) deemed-intent provision and the no-committal-hearing rule for stalking remain key.
FVPA contravention at s 123 (s 123A, s 125A related). Specialist FV court division at ss 4IA–4L (old ss 4H/4I repealed). DATO purposes at s 18X (not s 18K). ARC cannot hear contested matters (s 4X(2)); s 4Y(4) discharge operates as a complete defence. (Carried from notes — verify any you intend to cite hard.)
Firearms¶
Reform in progress — do not state proposals as law
The Firearms Act 1996 (Vic) still governs. The Rapid Review into Victoria's Firearm Laws led the government to accept most recommendations, with legislative change in progress and not yet commenced. Verify the current state before relying.
Currency watch — confirmed operative dates¶
• 1 Nov 2014 — complicity codified (ss 323–324C); common law abolished.
• 26 Apr 2021 — CMIA fitness determined by judge alone (Div 2).
• 30 Jul 2023 — affirmative consent reforms (ss 36, 36A, 36AA).
• 20 Aug 2025 — "post and boast" offence.
• 26 Aug 2025 — bail Schedule elevations (armed robbery / agg burglary / home invasion / carjacking → Sch 1).
• 1 Sep 2025 — machetes reclassified as prohibited weapons.
• 30 Sep 2025 — minimum age of criminal responsibility raised to 12; bail s 4F high-degree-of-probability test.
• 10 Dec 2025 — knife offence (s 195X); carjacking child-victim element; customer-facing-worker offences.
• 28 Dec 2025 — new committal framework (matters with a filing hearing on/after this date).
• 27 Feb 2026 — "Adult Time for Violent Crime" uplift expansion.
• 16 Mar 2026 — ram-raiding as aggravated burglary.
• 31 Mar 2026 — bail: commit-indictable-while-on-bail → compelling reasons.