1016 criminal law reading list PDF

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LAWS1016

CRIMINAL LAW Semester Two, 2021

Reading Guide

THE UNIVERSITY OF SYDNEY LAW SCHOOL sydney.edu.au/law

Outline 2021 -1V1

Section 113P Copyright Act 1968 Warning Notice

WARNING This material has been reproduced and communicated to you by or on behalf of the University of Sydney in accordance with section 113P of the Copyright Act 1968. The material in this communication may be subject to copyright under the Act and other applicable laws. Any further reproduction or communication of this material by you may be the subject of copyright protection under those laws. Do not remove this notice

Students should note that the selling or purchase of lecture notes, Unit Outlines, teaching materials, and downloading of lecture recordings without permission, infringes this copyright.

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This document contains unit of study specific information. It must be read in conjunction with the Sydney Curriculum Unit of Study Outline, the Canvas site for your unit of study and the Student Portal webpage. Students should also ensure they consult the University website for up to date policy information.

The Student Portal page is intended to direct you to relevant resources for your course (LLB, JD or PG), answer frequently asked questions from currently enrolled students and to direct you to the appropriate information resources. It is not intended as a complete guide to all policies and procedures, and you should always consult the University of Sydney Law School or University website for detailed information. The Student Portal includes links to information on such topics as: • Timetables; • Course structures; • Academic integrity; • Canvas/LMS; • Withdrawing from a unit of study; • Special consideration; • Simple extensions; • Style guide and referencing; • Student support services, including disability support; • Form for requesting permission for a unit of study; • Opportunities (offshore units, exchange, social justice, mooting, internships and more); • Receiving feedback; • Attendance requirements for Sydney Law School; • Student Experience, which includes links to Academic Enrichment and Support (Learning Centre Seminars, PASS, Legal Writing Resources and many other useful resources) Ensure you are aware of the content, and that you have consulted it before beginning a unit of study. All student enquiries should be directed to the Student Centre. You can also contact 1800 SYD UNI, check the Current Student website http://sydney.edu.au/students/, or submit a web form.

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Lecturer name and contact details Title/Name

Professor Gail Mason (Convenor)

Email

[email protected]

Title/Name

Ms Barbara Dobosz

Email

[email protected]

Title/Name

Mr Alex Kuklik

Email

[email protected]

Title/Name

Dr Allan McCay

Email

[email protected]

Title/Name

Dr Tanya Mitchell

Email

[email protected]

Title/Name

Ms Tania Panico

Email

[email protected]

Title/Name

Mr Mark Pavli

Email

[email protected]

Preferred method of communication In the first instance, you should contact your lecturer by email. If you direct the same enquiry to more than one Criminal Law lecturer, you must clearly inform each lecturer that you are doing this. Email is not to be used as a vehicle for individual or remedial tuition; however, lecturers are happy to answer your questions as they arise and might decide that the issues raised in the question are sufficiently important to warrant being addressed before the whole group. In correspondence with academic staff (especially email correspondence), please remember to sign your name and provide your student identification number. N.B. Please use your Sydney University email account when emailing academic staff.

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Lecture dates and times Group 1

Mon and Weds

9am – 11am

Prof Gail Mason

Group 2

Mon and Weds

11am – 1pm

Prof Gail Mason

Group 3

Mon and Weds

11am – 1pm

Group 4

Mon and Weds

2pm – 4pm

Dr Tanya Mitchell

Group 5

Mon and Weds

2pm – 4pm

Mr Alex Kuklik

Group 6

Mon and Weds

4pm – 6pm

Group 7

Mon and Weds

4pm – 6pm

Mr Mark Pavli

Group 8

Tues and Thurs

9am – 11am

Dr Allan McCay

Group 9

Tues and Thurs

9am – 11am

Ms Barbara Dobosz

Group 10

Tues and Thurs

11am – 1pm

Ms Barbara Dobosz

Group 11

Tues and Thurs

11am – 1pm

Ms Tania Panico

Group 12

Tues and Thurs

2pm – 4pm

Group 13

Tues and Thurs

2pm – 4pm

Online

Online

Online

Dr Tanya Mitchell

Mr Alex Kuklik

Dr Allan McCay Ms Tania Panico

Please refer to the relevant LLB, JD, JD (part-time) timetable via the Student Portal page. NB: Please keep an eye on your Canvas LMS site for any announcements in relation to lectures and venues, as last-minute changes can and do occur. Students are required to attend two 2-hour seminars each week for the duration of this unit. Each student will be allocated a particular seminar group and will be required to remain in that same group throughout the semester. All students are required to attend 70% of classes (or as otherwise specified by the Unit Coordinator) to satisfy the pass requirements for each unit of study. Attendance requirements may be satisfied by in person and/or online attendance as specified by the Unit Coordinator. Failure to meet this requirement may result in a student being precluded from sitting the final assessment.

Reading materials Required reading -

David Brown et al, Criminal Laws, (Federation Press, 7th ed, 2020)

You can either purchase this book or borrow it from the library.

Recommended reading -

Roderick Howie & Peter Johnson, Annotated Criminal Legislation NSW 2020-2021 edition, (LexisNexis, 2021)

This book reproduces, and provides commentary about, most of the legislation dealt with in this unit. Be careful not to refer to an out-of-date copy of this work, which is published annually.

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The other texts listed below might be useful to you, but do not purchase or use earlier editions of any of these works. These might not state the current law in NSW and might also be incomplete. -

Simon Bronitt & Bernadette McSherry, Principles of Criminal Law, (Thomson Reuters, 4th ed, 2017) Thomas Crofts et al, Waller & Williams Criminal Law Text and Cases (LexisNexis, 14th ed, 2020) Michael Eburn et al, Hayes & Eburn Criminal Law and Procedure in New South Wales (LexisNexis, 5th ed, 2016) Paul Fairall and Malcolm Barret, Criminal Defences in Australia 5th Ed, (LexisNexis 2016) Lorraine Findlay and Tyrone Kirchengast, Criminal Law in Australia 2nd Ed. (Lexis Nexis, 2019) Peter Rush & Stanley Yeo, Criminal Law Sourcebook, (LexisNexis Butterworths, 2006)

Outlines - Penny Crofts, Criminal Law Elements (LexisNexis, 6th ed, 2017) - John Anderson, Criminal Law Guidebook. New South Wales, South Australia, Victoria, (OUP, 2nd ed, 2016) - Thomas Hickie & Ian Lloyd, LexisNexis Questions and Answers: Criminal Law for Common Law States (LexisNexis, 2nd ed. 2014) English Texts - David Omerod and Karl Laird, Smith and Hogan’s Criminal Law (Oxford University Press, 15th ed, 2018) - Andrew Simester et al, Simester and Sullivan’s Criminal Law: Theory and Doctrine (Hart Pub, 7th ed, 2019) - Jeremy Horder, Ashworth’s Principles of Criminal Law (OUP, 9th ed, 2019)

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Class schedule Week Week 1

Week 2

Week 3

Week 4

Week beginning 9 August 16 August 23 August

30 August

Class

Topic

Class 1

Introduction – Crime, Law and Morality

Class 2

The Scope and Principles of Criminal Law?

Class 3

The elements of criminal offences I

Class 4

The elements of criminal offences II

Class 5

Homicide I: Murder

Class 6

Homicide II: Unlawful and dangerous act manslaughter; gross negligence manslaughter

Class 7

Problem-solving class

Class 8

Assault, wounding and GBH offences

Week 5

6 September

Reading Week – No Classes Assessment due 13 September at 9 am

Week 6

13 September

Class 9

Assault, wounding and GBH offences/ Sexual offences

Class 10

Sexual Offences

Week 7

20 September

Reading Week – No Classes

27 September – 1 October

Semester Break – No Classes

Week 8

4 October

Reading Week – No Classes

Week 9

11 October

Class 11

Larceny

Class 12

Complicity

Class 13

Problem-solving class

Class 14

Extreme Provocation

Class 15

Self-Defence

Class 16

Duress and Necessity

Class 17

Mental Health Impairment or Cognitive Impairment and Substantial Impairment by Abnormality of Mind (SIAM)

Class 18

Automatism (involuntariness)

Class 19

The use of evidence of (i) mental illness or (ii) self-induced intoxication to negate intent

Class 20

Revision

Week 10

Week 11

Week 12

Week 13

18 October 25 October 1 November

8 November

A student must make a genuine attempt at all assessment tasks set out in this Unit of Study in order to obtain a Pass mark and grade (or above); otherwise an Absent Fail grade will be recorded as the student’s result for this Unit of Study.

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Reading List KEY

➢

Symbol

Description



Compulsory reading (will be made available via the Canvas site under ‘eReserve’)

•

Optional reading

Introductory classes

Class 1

Unit of Study Introduction – Crime, Law and Morality

In this class, we will introduce you to the main themes of this unit of study. In particular, we will examine two questions to which we shall repeatedly return this semester: how do we determine the limits of criminal liability; and how should we decide whether certain behaviour is criminal? We will note the various, conflicting, principles that underlie the criminal law. For whereas, as Alan Norrie has noted, ‘criminal law is, at heart, a practical application of liberal political philosophy,’ the words of qualification that he uses (‘at heart’) are important: ideas of individual autonomy have influenced the content of the criminal law, but so too has a judicial concern to protect the community and to ensure that the existing social order is not radically undermined. The competing influences of autonomy and community protection seem to explain the criminal law’s ambivalent approach to subjective mental states. We will further examine this point in class. And while ‘general principles’ of the criminal law, such as, for example, the temporal coincidence rule (considered in the Problem below), seem liberal on their face, the judges have not always felt constrained by them when the price of adherence would be a ‘manifestly unjust’ outcome in a particular case. Finally, we will consider the question of euthanasia. How desirable is the general rule that an accused person’s motive is relevant only to sentence? Is this rule an instance of the criminal law exaggerating the extent to which certain accused persons have acted freely? If so, why might it do this? Reading  Brown et al (2020), pp. 151-3, 190-91 (individual choice and the general irrelevance of motive); 176-77 and 170-72 (subjective and objective mental states); 860-66 (euthanasia)  Findlay, Odgers & Yeo (2014), chapter 1 Problem David’s mother is dying of cancer. She has been suffering extreme pain for several years and, despite recent radical medical treatment, there seems little that the doctors can do to reduce her discomfort. Her advanced years make it risky to carry out further surgery; and, in any case, the cancer is too far advanced to warrant such intervention. For months now, David’s mother has begged her son to assist her in suicide. He has resisted her pressure, despite his deep distress at seeing her suffer. One afternoon when David’s mother’s doctor visits her, David overhears his mother make a similar request. The doctor replies that, despite her sympathy for the mother’s position, her ethics as a doctor prevent her from taking life. In addition, there is no law in this State which would relieve the doctor of criminal liability if she assisted in a suicide.

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The following day, David’s mother again begs her son to help her die. Again, David refuses. With this, she calls her son a coward and a disgrace to the memory of his dead father. Distraught, confused, and desperately wanting to silence his mother’s abuse, David lashes out with his fist and strikes his mother on the face, knocking her to the floor. Fearing that he has killed her, and in a state of blind panic, David sets fire to the room to conceal the evidence. In fact, David’s mother was only unconscious, but a later coronial inquiry revealed that she died as a result of smoke inhalation.  Should David be convicted of any homicide offence?

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Class 2

The Scope and Principles of Criminal Law?

In this class, we will continue to discuss the themes introduced in the first Seminar. Our aim is to introduce a number of approaches to understanding and critically analysing the scope and organisation of the criminal law. As the unit progresses and your understanding of criminal law develops, we expect that you will deepen your engagement with the readings and the questions set out here. First, we will consider the normative argument presented by Andrew Ashworth and Jeremy Horder about the ‘principles and values that … ought to be considered when deciding whether or not to make conduct criminal.’ To what extent should the criminal law uphold the liberal idea that a person should be held criminally liable, and punished, only where he or she has chosen to cause harm? Is Ashworth and Horder’s ‘minimalist approach to criminalisation’ persuasive? Secondly, we might make some reference to Alan Norrie’s explanation of the criminal law in Crime, Reason and History. Norrie argues that the criminal law is contradictory, chaotic and illogical because of the conflicting principles that underlie it. Throughout this unit of study, we will consider whether such illogicality can be justified. Reading  Ashworth and Horder (2013), pp. 22-43 •

Norrie (2014), chapters 1 and 2

•

Wells and Quick (2010), chapters 1 and 3

Questions Ashworth and Horder 1. Ashworth and Horder note that the criminal law must be influenced by the ‘principle of welfare.’ Does this differ from the ‘ community welfare principle’? (see the Findlay, Odgers and Yeo chapter from the first class) 2. Ashworth and Horder set out three conditions that they believe should be satisfied before conduct is held to be criminal. What are these conditions? What is the minimalist approach to criminalisation that they advocate? 3. What do Ashworth and Horder say about whether criminalisation is justified for behaviour regarded as morally wrong? Do you agree? (In this connection, see also the case of Brown [1994] 1 AC 212, which we will discuss in class 9. Here, the question was: should the consensual infliction of actual bodily harm and/or wounding during a sado-masochistic sexual encounter be criminal? Note the different views of Lord Templeman (in the majority) and Lord Mustill (in the minority) concerning the role of ‘common morality’ in determining whether particular conduct is criminal. 3. Ashworth and Horder see a limited role for paternalism in the criminal law. They also support criminalising some behaviour that is not harmful in itself but carries the risk of causing harm: e.g. dangerous driving. What is their argument here? 4. Ashworth and Horder note that liberalism assumes that people have ‘sufficient free will to make meaningful choices.’ But does a liberal approach to law sometimes exaggerate the extent to which people are free to choose? If so, is this necessary?

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5. Does Ashworth and Horder’s theory strike a reasonable balance between individual autonomy on one hand and the factors that might constrain rational choice on the other? Alan Norrie (you may wish to consider these questions after class 4 or 6) 6. To what extent does the substantive criminal law reflect the general principle that a person is not criminally responsible for an act unless he or she has a ‘guilty mind’?

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➢ Determining Criminal Responsibility – Elements of the Offence Class 3

The Elements of Criminal Offences I

In this class, after noting the ‘golden thread’ from Woolmington v DPP [1935] AC 462, we will discuss the important High Court decision of He Kaw Teh v R (1985) 157 CLR 523. We will particularly focus on what that decision says about the (i) actus reus and (ii) mens rea elements of criminal offences. Where a statutory offence is silent concerning mens rea, the courts are responsible for determining which mental element applies to the relevant conduct element. In doing so, they are guided by the presumptions identified by the High Court in He Kaw Teh. Reading (i) Generally  Brown et al (2020), pp. 246-53; 157-58; 192-210 (ii) Woolmington and evidential burdens  Woolmington v DPP [1935] AC 462 [Brown, 248-9]  Brown et al (2020), pp. 246-53 •

Braysich v R (2011) 243 CLR 434, [35]-[36] (French CJ, Crennan and Kiefel JJ) is a case where the majority of the High Court noted how an evidential burden is discharged; see also Ryan v R (1967) 121 CLR 205, 217 (Barwick CJ) * At p. 252, the textbook states that trial judges should not explain to juries the phrase ‘beyond reasonable doubt.’ In a number of recent cases – one decided by the High Court and the others decided by the NSWCCA – appellate courts have considered precisely what judges may say to juries about the onus and standard of proof. First, in R v Dookheea (2017) 262 CLR 402, the High Court held that, while it is generally undesirable for judges to contrast ‘reasonable doubt’ with ‘any doubt’, it will not necessarily be an error for the judge to do so: [37]. To prove something beyond reasonable doubt, their Honours reasoned, is not necessarily to prove it beyond any doubt:...