LAWS2004 Criminal Law and Procedure

Week 1 – 7/3/14

What is crime and criminal law?

Criminology examines the social aspects and causes of crime. Criminal law is

concerned about the legal implications of crime. Crime is contingent on a

variety of societal power relations/structures. An act is not legally a “crime”

State-based.

Crime: activity that the state prohibits by law and punishes (Oxford Australian

Law Dictionary). Formal legal definition that distinguishes crime from tort.

Crimes are public wrongs largely dealt with in a public sphere. Actus reus and

mens rea are common law terms used to define crimes.

There is no satisfactorily universal definition of criminal law and what is

criminal. Other approaches to defining crime include:

o Historical: social and political developments;

o Harm and morality: public/private, harm (not a wholly defining feature

of crime), offensiveness;

o Social reaction: Durkheim’s “collective conscience”;

o Varies according to social and historical context – media portrayal –

White and Haines reading

Ashworth’s Principled Core of Criminal Law

Impossible to judge criminal law by its content, but rather by the fortunes of

successive governments and mass media.

Four core principles:

o Criminal law should only be used to censure persons for substantial

wrongdoing;

o Criminal law should be enforced with respect for equal treatment and

proportionality;

o Persons accused of substantial wrongdoing ought to be afforded the

protections appropriate to those charged with “criminal offences”.

o Maximum sentences and effective sentence levels should be

proportionate to the seriousness of the wrongdoing.

o Emphasis on requirement for a fault element and proper procedural

protections.

Sources of Australian and New South Wales Criminal Law

English law, including the common law, formed the basis of criminal law

when NSW, Australia first settled.

Criminal laws generally the responsibility of the states. If the Federal

government wants to legislate criminal law, states must cede their power.

Two main sources: common law and statutes.

Common law states: NSW, Victoria, SA – majority of offences now defined

and regulated by statues, but still presupposes continued existence of common

law.

Code states: QLD, WA, Tasmansia, NT + Criminal Code (Cth) [ACT hybrid]

– criminal law comprehensively covered by statute (“Code”).

Parties to a criminal case

Prosecution or Informant or Complainant. Referred to as the Crown in DC and

SC.

Defence: “accused person” used across all jurisdictions. Once found guilty

called the “offender”.

Appeal: Appellant or Applicant and Respondent

Criminal Law’s Two Branches

Substantive: legal rules and principles which identify behaviour as criminal.

Largely concerned with definitions of crimes and what are the elements of a

particular criminal offence. E.g. definition of assault.

Procedural: rules of law that determine the structure and function of, and

regulate the operation of, the system of criminal justice. E.g. powers of

police, sentencing and administration of punishment.

The burden and standard of proof in criminal cases

General rule in criminal law is that the accused cannot be convinced of the

offence charged unless the prosecution has proved the commission of the

offence as charged beyond reasonable doubt.

Prosecution carries burden of proof and standard is beyond reasonable doubt –

he who accuses proves.

Some exceptions to rule: common law defence of mental illness, statute: s29

Drug Misuses and Trafficking Act 1985. Standard is on the balance of

probabilities.

The criminal court structure in NSW

High Court -> Court of Criminal Appeal (NSW) -> Supreme Court of NSW ->

District Court of NSW -> Local Court, Children’s Court, Coroner’s Court

Week 2 – 14/3/14

Types of criminal offences

Most important classification in NSW is distinction between summary and

indictable offences. Relates to the mode of trial.

Summary offences: tried in courts of summary jurisdiction, magistrate is trier

of both fact and law. All public order offences are dealt with in the LC.

Indictable offences: tried in intermediate and superior courts by judge and jury

after committal. Judge decides issues of law. Jury decides facts. May be tried

by judge alone. Minor/Serious s. 4. Accused generally has the decision to opt

for jury – prosecutor doesn’t have to agree.

Committal is a preliminary hearing that decides whether the matter goes

before a judge and/or jury.

There are a large amount of indictable offences triable summarily in order to

be cost effective and fast-tracked. Mode of trial turns on gravity of and

particular circumstances of the case (Criminal Procedure Act 1986 – ss 258-

273). Indictable offences fall into 3 groups:

o Indictable offences not triable summarily (strictly indictable)

o Table 1 indictable offences under Chapter 5 [s 260(1)] – to be dealt

with summarily unless either the prosecuting authority or accused

elects otherwise.

o Table 2 indictable offences under Chapter 5 [2 260(2)] – to be dealt

with summarily unless prosecuting authority elects otherwise.

There are strategic aspects that the accused has to think about in regards to

sentencing.

The criminal court structure in NSW

Children’s Court: specialist court dealing only up to 18. Can deal with more

criminal offences than other courts, as it is someone under 18. Cannot deal

with serious indictable offences, which must go to the SC. Presided over by

children’s magistrates. May have the same magistrate as smaller LC.

Sentencing orders are strict/limited.

Coroner’s Court: deals with suspicious deaths. Can order inquests into deaths

and suspicious fires. Do not have powers of penalty; can only make

recommendations on what can be done. Can refer matters to AG who will

refer to DPP. Coroners act as administrative inquirer.

District Court: trial jurisdiction. Majority of serious indictable offences tried in

NSW. Appellate jurisdiction. Downing Centre is main DC in NSW – criminal

headquarters.

Supreme Court: generally travel in circuits, as opposed to sitting in one court.

Jurisdiction restricted to murder. Deal with complex cases or large drug trials.

Concurrent jurisdiction with DC. Manslaughter and drug importation.

Court of Criminal Appeal: Appeal division. Generally 3 judges in appeal, 2 in

sentencing appeal, 5 judges in matters of points of law or difference of

opinion.

High Court: only hear about 20-30 criminal cases a year. Applications for

special leave come before 2/3 judges. 5 judges must sit if matter gets through

appeal level. All 7 judges may sit if a point of law is proposed.

Prosecution and defence

Adversarial: parties present competing claims to impartial third party with

power to impose authoritative determination.

Role of the police: essentially exist to investigate crimes. Some broader

functions to consider. Gatekeepers.

Prosecution:

o Police Prosecutors – LC

o Solicitors from DPP – all indictable matters in LC + matters in DC and

SC

o Crown prosecutors – barristers in trials in DC and SC

o Private solicitors or counsel briefed by DPP

Ethical duties: present case properly and fairly – call all material witnesses

Defence:

o Unrepresented

o Legal representation:

Legal Aid

Private solicitor

Barrister (counsel)

No absolute right to legal representation in Australia (Dietrich)

Other options: pro bono; amicus curiae; McKenzie friend

Propositions established in Dietrich

Australian law does not recognise a right to the provision of counsel at public

expense

However, an accused has the right to a fair trial (not to be tried unfairly)

The courts have power to stay a criminal proceeding which will result in trial

which is unfair

Each case needs to be examined in the light of its own particular

circumstances

Ordinarily where an indigent accused charged with a serious offence is,

through no fault of his own, unable to obtain legal representation then, judge

should adjourn or stay the trial

Legal Aid criminal law policies

Legal Aid available in LC criminal matters where offences commenced by

CAN and either offences carries imprisonment as a viable penalty or

exceptional circumstances exist.

ADVO – applicant (domestic relationships) unless frivolous or application

made by a police officer, defendants only where also applicant in associated

ADVO proceedings or exceptional circumstances exist.

Only available for motor traffic offences where there is areal possibility of

term of imprisonment being imposed or exceptional circumstances.

Drug Court matters – no means or merit test – availability of funds tests.

Indictable matters in D/SC – sentence matters, trials, bail applications

Appeal to DC, CCA, and HC subject to Means Test, Merit Test A, and the

appropriateness of spending public funds.

The jury in NSW

Juries empanelled in D/SC for trials of indictable offences

Persons excluded or entitled to claim exemption from jury – s 5 Jury Act

12 jurors in any criminal proceedings (or up to 3 additional jurors by court

order) s 19.

Right to challenge jurors – Part 6 – peremptory and challenge for cause

Empanelling jury – Part 7 – random ballot and identification numbers

Jurors sworn and charged to return verdict according to evidence

Majority verdicts – s 55F

Failure to agree – discharge s 56

Week 3 – 21/3/14

Introduction to Criminal Responsibility

There are important general principles:

o A person cannot be convicted of crime unless that person:

Engages in conduct that is prohibited by the criminal law, and;

does so with a guilty state of mind – actus no facit reum, nisi

mens sit rea

o Actus reus: conduct basis of the criminal offence, “external element”,

“conduct element”.

o Mens rea: guilty mind, “fault element”, “mental element”.

o Criminal liability arises where both elements coincide.

Legal personhood

Presumption that all adults have mental capacity.

Criminal responsibility for a child begins at 10 (s 5 Children (Criminal

Proceedings) Act 1987.

Children 10-14 years presumed incapable – doli incapax.

Presumption can be displaced – must know act is ‘seriously wrong’ – BP v R;

SW v R [2006] NSWCCA 172

Corporate criminal liability:

o Vicarious – acts and intentions of employees attributed to employer

when carried out in course of employment;

o “Directing mind and will” of corporation – certain persons when acting

in the company’s business are the ‘embodiment of the company’ so

their acts are deemed to be acts of the corporation.

The conduct element – actus reus

Physical elements or external events of crime

Defined into 3 types of observable behaviour:

o The conduct – acts, omissions, or status

o The circumstances – in which conduct specified to take place

o The consequences – or results caused by the conduct – causation

Comprehending conduct is the basic element of actus reus. There are different

types of conduct can be made a crime:

o Act: doing of a thing, which attracts the operation of the law. Relevant

act must be voluntary;

o Omission: refraining from doing a thing which required by operation

of law;

o Status: individual found in a particular state of being = criminal

liability

Voluntariness of the actus reus

Whatever the mens rea elements of an offences are, it is always necessary to

establish that an accused acted voluntarily. Definitions of voluntariness

include:

o conduct must be conscious decision, that is

o some connection between conscious mind and bodily movement

o resulting in exercise of the will to act

o “The authorities establish and it is consonant with principle, that an

accused is not guilty of a crime if the deed which would constitute it

was not done in the exercise of his will to act” – Ryan v R

o Evidential onus on accused when arguing acts involuntary. Once

discharged the persuasive burden on prosecuting to prove beyond

reasonable doubt that act voluntary.

The mental elements – mens rea

General rule is every crime requires mens rea – generic term for a number of

different mental states including intent, recklessness, etc

May be different mens rea requirements for differnet parts of actus reus. Ask

what mens rea required for conduct, circumstances, and consequences of

offence.

Starting pint for identifying fault element is a presumption that the mens rea

for criminal offences is subjective – He Kaw Teh

Subjective mental elements

Intent is the standard subjective form of mens rea – conduct and consequence

elements in the actus reus.

An individual is defined as intending to act if they mean to engage in the act.

If a consequence is an element, intent involves proving it was the individual’s

purpose in engaging in certain conduct that the consequence would result.

Not necessary or sufficient to show there was a motive, e.g. while you may

kill in compassion, you still intended to kill.

Recklessness is where an accused can foresee some probable or possible

harmful consequence or a circumstance existing, but nevertheless decides to

continue with those actions with an indifference to the consequences or even

hoping they do not eventuate.

Negligence

Form of objective mens rea that can apply to any aspect of the actus reus.

Inquiry is not focussed on the accused’s mind but rather on what would have

been in the reasonable or ordinary person’s mind at the relevant time.

Accused’s conduct compared against this standard of reasonableness.

To attract criminal liability – departure from standard has to be sufficiently

great to warrant punishment.

Generally speaking, the more serious the offence, the greater the departure

from the standard must be before an accused will be considered to have acted

with criminal negligence – Nydam v R [1977] VR 430.

Strict and absolute liability

Offences of strict liability comprise a limited form of objective mens rea

applicable only to the circumstance component of the actus reus.

In statutory offences of strict liability, only basis accused may avoid

conviction is to raise the excused of reasonable mistake of fact.

Evidential burden on accused – Proudman v Dayman.

Once burden discharged then prosecution must prove burden no honest belief

or not based on reasonable grounds.

Absolutely liability – no mens rea component at all in offence.

Courts are reluctant to interpret statutory offences as crimes of absolute

liability unless legislative intention is unequivocal.

Case references: selling or supplying liquor to person under 18 years (Hickling

v Laneyrie).

Fail to submit to breath analysis – Walker (1994) 77 A Crim R 236