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Crininal Laws (7th edn, 2020) Brown et al

Brown, Farrier, Neal and Weisbrot’s

Criminal Laws Materials and Commentary on Criminal Law and Process of New South Wales 7th Edition

David Brown Emeritus Professor, Faculty of Law, University of New South Wales

David Farrier Emeritus Professor, School of Law, University of Wollongong

Luke McNamara Professor, Faculty of Law, University of New South Wales

Alex Steel Professor, Faculty of Law, University of New South Wales

Michael Grewcock Senior Lecturer, Faculty of Law, University of New South Wales

Julia Quilter Associate Professor, School of Law, University of Wollongong

Melanie Schwartz Senior Lecturer, Faculty of Law, University of New South Wales

Thalia Anthony Professor, Faculty of Law, University of Technology Sydney

Arlie Loughnan Professor, Sydney Law School, University of Sydney

TH E FE DER ATI O N PRES S 2020 For Personal Use Only Advance Copy

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Crininal Laws (7th edn, 2020) Brown et al

Published in Sydney by The Federation Press PO Box 6178, Alexandria, NSW, 2015. 8 Birmingham St, Alexandria, NSW, 2015. Ph (02) 9552 2200. Fax (02) 9552 1681 E-mail: [email protected] Website: http://www.federationpress.com.au First Edition Second Edition Third Edition Fourth Edition Fifth Edition Sixth Edition Seventh Edition

1990 1996 2001 2006 2011 2015 2020

ISBN 978 1 76002 179 5 (pbk)

©

David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter, Melanie Schwartz, Thalia Anthony, Arlie Loughnan This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to the publisher.

Typeset by The Federation Press, Alexandria, NSW. Printed by OPUS Group in Australia. For Personal Use Only Advance Copy

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Crininal Laws (7th edn, 2020) Brown et al

Chapter 1

Some Themes 1.1 1.2

1.3

1.4

1.5

1.6

Introduction 1 Constituting Criminal law 2 1.2.1 Positionings 5 1.2.2 General principles? 8 1.2.3 General concepts and general principles 10 1.2.4 The limits of criminal responsibility 12 1.2.5 The limits of criminal law 13 1.2.6 General defences? 15 1.2.7 Recalibratingthegeneralandthespecific 16 The Criminal Process and Competing Versions of What the law “Is” 16 1.3.1 Pre-trial process 17 1.3.2 The trial 19 1.3.3 law reform and the criminal process 20 1.3.4 Criminal statistics 22 1.3.5 Historical development as context 26 Criminal law in Australia 27 1.4.1 New South Wales and Commonwealth law 27 1.4.2 Takingspecificityseriously 30 Forms of Regulation 31 1.5.1 beyond criminal law 31 1.5.2 “Criminal law” 36 1.5.3 The political dimension 39 Future Directions? 42 1.6.1 Shape shifting: technocratic, administrative and “simulated” justice 44 1.6.2 Shape shifting: the rise of risk and the emergence of “preventive justice” 47

1.1 Introduction This chapter serves as an introduction to the broad approach adopted in the selection of materials, the writing of commentary and the development of themes. It is hoped it will provide some insight into why we have chosen to approach the task in the way we have. Accordingly, it is important to be open and reflexive about the approach adopted, so we attempt to position our approach in the current field of criminal law scholarship as between traditionalist, philosophical/normative and critical schools. A central issue in how criminal law is constituted in books such as this is that of general principles. The issue of the existence and strength of general principles of criminal law is examined, and here we raise the issue of whether criminal law can be considered as a unitary field, or whether it is more helpfully considered as a collection of diverse “criminal laws” in the plural, hence our book title. A second major theme is the relationship between substantive criminal law, the formal offences themselves, and criminal process and procedure, for our contention is that it is not possible to study criminal law adequately without recognising the strong inter-relation between substantive law and process. , and an empirical and historical analysis of specific criminal laws, including recourse to criminal statistics and to criminological analysis more broadly. Our third major theme is that of placing criminal law For Personal Use Only Advance Copy

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CRIMINAl lAWS

alongside other forms of regulation so that the appropriateness of regulation through the vehicle of the criminal law can be thrown into relief and considered, rather than just taken for granted. This involves, among other things, highlighting the political dimension of criminal law. Fourthly we look at the relationship between State and Commonwealth criminal law, with a focus on NSW, and outline the Model Criminal Code project. Fifthly and finally we look to future directions in criminal law, attempting to pick future trends. Here we emphasise two interlinked developments. The first is the way technological change has affected a range of criminal justice processes and practices, in policing, the court process and the growth in regulatory/administrative justice, using the examples of “on the spot” fines and penalty notices and what O’Malley calls “simulated justice” and the “robo debt” scandal. The second is the way in which risk and risk analysis is increasingly manifest in criminal law across a range of areas, what some commentators describe as the emergence of “preventive justice”. A feature of “preventive justice”, stimulated by technological change and the drive for “efficiency”, is reliance on risk instruments and algorithms in a number of criminal justice processes including policing, bail, sentencing and parole (see Chapter 2 at 2.5.5; Chapter 5 at 5.4.4; Chapter 14 at 14.2.2).

1.2 Constituting Criminal law The range of issues which could conceivably be covered in a book claiming to deal with criminal law is immense. Recourse to criminal law as a mode of regulation is pervasive in our society, covering many aspects of the day-to-day behaviour of individuals and corporate bodies. Scarcely a week passes without media or political demands to criminalise particular activities or behaviours, create new offences for forms of conduct already covered by existing offences, implement existing laws more rigorously or increase existing penalties. While there are differences in degree between murder at one extreme, and offensive behaviour at the other, the processes through which they are filtered are still viewed as being distinctively criminal. What this means is that no book dealing with criminal law can realistically expect to cover each and every aspect of criminal law and process. Time and space mandate selectivity. But the choices made should be the result of reasoned decisions rather than taken-for-granted assumptions. We need to approach the task of selecting areas to be covered self-consciously. For the process of studying or examining criminal law is also in part a process of constituting our object of inquiry, and not merely describing a pre-existing object. The picture of criminal law which we eventually produce will depend fundamentally on how we have initially constituted our object of inquiry. The first edition of this book was started in 1984 and published in 1990 in response to the original authors’ (David Brown, David Farrier, David Neal and David Weisbrot) perception that criminal law had traditionally been constituted by text-book and case-book writers in a way that had produced a selective and partial picture of criminal law. Under the traditional approach to the study of criminal law, the object of inquiry is not seen to be problematic. Everybody is assumed to know and accept what criminal law “is”. The prophecy is a self-fulfilling one. The result is a considerable degree of consensus about what it is appropriate to cover, but this consensus is taken for granted and has rarely been the subject of reflection. These offences have a long historical tradition; their origins l rather than statute. Questions of the legitimacy of societal intervention through criminal law in core areas of behaviour such as these have been more muted and they have not in the past been seen so readily to raise “political” issues, although in recent years this has changed. Rather, offences have been perceived to be little more than codifications of moral values, in relation to which there was presumed to be a substantial consensus. The resulting picture is of a criminal law which possesses a sense of inevitability, its effective limits not in issue. It is a picture which is based on unspoken assumptions about some perceived essence of Criminal Law. . The critique traditionally advanced is in terms of the coherency and consistency of the rules and, specifically, the extent to which they are in line with “principle”. It is a legal insider’s view of criminal law;

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the task in hand is seen as being, at most, one of law reform requiring the expertise of criminal lawyers, rather than social policy-making necessitating contributions from a much broader range of experts and community representatives. References to “policy” decisions made by the courts are, in fact, sometimes condemnations of decisions which are alleged to depart from alleged fundamental principles within criminal law. In commenting generally on English student text-books, Atiyah and Summers have argued: Textbook writers’ analysis of policy issues are often rather facile, amounting sometimes to little more than jejune statements about what seems ‘fair’ … The tone of textbooks is often dogmatic, with decisions presented as if they were strict deductions from basic principles. (PS Atiyah and RS Summers, Form and Substance in Anglo-American Law (1987) at 394)

There is a sense of history in so far as the conception of what is legally authoritative necessitates an examination of past decisions and early treatises. But there is little sense of the historical and cultural relativity of criminal laws. The objective is not to highlight the dramatic changes which have taken place in the shape and content of criminal law throughout history as a prelude to a discussion of the range of options available in the future. The quest is for a definitive rendition of a (reified) Criminal Law, based on legal authority tempered by legal commonsense and a commitment to principle – a rendition which has a strong sense of inevitability about it, rather than a sense of historical and social specificity and contingency. There is little sense of the broader context in which substantive criminal law exists – no questioning, for example, of the significance of criminal law in influencing our behaviour in comparison with the many other social forces which bear upon us. In addition, judicial definitions of criminal offences are analysed in isolation from other parts of the criminal process. There is little recognition that the certainty and precision to which commentators on criminal law aspire are always vulnerable in day-to-day practice to the institutionalised discretion which pervades the criminal process. This picture of criminal law has increasingly been questioned. As long ago as 1979, Bates, Buddin and Meure, in The System of Criminal Law, a book dealing with criminal law in NSW, South Australia and Victoria, incorporated chapters on drugs offences, road traffic offences and public order offences, as well as a detailed treatment of criminal procedure. The very inclusion of this broader range of material begins to raise issues about whether criminal law has any business in these contexts in the first place. Criminal lawyers have not traditionally defined issues about the role which criminal laws play, and can reasonably be expected to play, in our community, and the appropriate limits to that role, as falling within their brief. Indeed, why should they, if the core of criminal law is homicide, assault, rape and theft, social problems which obviously merit its attention? In the United Kingdom, Lacey, Wells and Meure, Reconstructing Criminal Law (1990) at xi, attempted to “make explicit certain assumptions which underlie traditional thinking about criminal law, and to subject them to critical scrutiny”, not only by a critique of legal doctrine seeking to deconstruct “criminal law’s claims to be susceptible of rationalisation in terms of an apolitical, coherent body of doctrine”, but also by “setting criminal laws in their social, historical and procedural context”. Their second edition (1998) reasserted these aims and added their commitment to be “practical as well as theoretical, for the issues which we have brought to the fore are confronted daily in the criminal justice system” (at 8). Even though focused on “issues of principle”, he does not contend that English criminal law is “grounded in a stable set of established doctrines”. He recognises that there is (7th ed, 2013 Preface at v). He goes on to note that . The range of actual and potential crimes is so wide and varied that this seems unattainable” (2013 at 22). Even Antony Duff, who is in the forefront of attempts to elucidate a “normative theory of criminal law” (see Chapter 2 at 2.3.4), suggests that we should abandon “attempts to derive the content of the criminal law from a single master principle … [and] accept that debates about its scope will be piecemeal, gradual affairs, more focused on particular For Personal Use Only Advance Copy

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offences (actual or suggested), and informed by a range of values, presumptions and considerations” (Answering for Crime, 2007 at 142-3). More recently in The Realm of Criminal Law (2018) Duff elaborates on how an extensive criminalisation project was not successful in developing a theory of criminalisation but was successful in the more “modest aim” of “‘working towards an overarching, theoretically informed, normative perspective’ on ‘the proper scope and structure of the criminal law’” and a “thin” “‘master principle’ of criminalization” (3). Norrie, Crime, Reason and History (1993; 3rd ed, 2014, has drawn attention to the inconsistencies of approach which are present in practice in relation to what are supposed to be central organising principles within core areas of criminal law. In the Australian context Criminal Laws has been joined by other critical and contextual texts such as S Bronitt and B McSherry, Principles of Criminal Law (4th ed, 2017) and B McSherry and B Naylor, Australian Criminal Laws: Critical Perspectives (2004). At a more modest level, even such staples in the diet of generations of Australian law students as Waller and Williams, Criminal Law Text and Cases (13th ed, 2016), now at least incorporate chapters on drugs offences, and other student reading guides such as P Rush and S Yeo, Criminal Law Sourcebook (2nd ed, 2006) and M Findlay, Criminal Law Problems in Context (2nd ed, 2006) adopt a contextual and critical approach. Our seventh edition of Criminal Laws seeks to elaborate the themes of critical scrutiny established in the six previous editions. It takes the way in which criminal law has traditionally been constituted seriously, but at the same time seeks to identify its limits. We cannot simply ignore the selective and partial picture of criminal law which has been painted in the past. For while the developments noted above and books such as this one have influenced a generation of students in painting a broader picture of criminal law, It is a fundamental part of the history of the present project and a significant aspect of the social context in which we currently find ourselves. One of our ultimate objectives may be to make problematic the whole enterprise of discovering what the law “is”. But this is a book designed for law students who, we fully acknowledge, will regularly be confronted by this question – who will more than likely find themselves in an environment where such an enterprise is taken for granted. It is an enterprise which is fundamentally influenced by the picture of criminal law generated by text-book and case-book writers, discussed above. This picture has had a very substantial influence on the way the judiciary approaches the analysis of criminal law. It clearly holds many attractions. Moreover, the way in which these writers have been able to legitimate and sustain certain narrow perspectives and limited forms of discourse is a significant accomplishment – one which cannot be dismissed out of hand. Our main contention is that these attractions are only sustained because the terms of reference have been drawn so narrowly. The result is that a great deal of evidence has been refused admission on the grounds of irrelevance. What we have tried to do in this collection of materials and commentary is to broaden the terms of reference and thus to expand existing conceptions of what is legally relevant. The most obvious result is the incorporation of a whole body of material over and above the appeal court decisions, law reform proposals and academic commentary traditionally found in text-books and case-books on criminal law. The precise emphasis and material incorporated vary from chapter to chapter. We have sought to set the rules of substantive criminal law in their historical, procedural and contemporary social context with a view to raising questions about the different roles played by different criminal laws and the appropriateness of those roles. This is not with a view to presenting some grand theory about what criminal law is or should be. Our target is specific criminal laws. This necessarily brings us into conflict with those who see the criminal law and process as a single unified system with over-arching general principles. We have c , hence the title of our book is in the plural. We cannot shut our eyes to this by simply excluding from consideration those areas which do not conform to some latent notion of what is “real” criminal law. What we have tried to do at an elementary level is to take the abstracted criminal law away from the appeal courts and relocate it in the social reality of the day-to-day operation of the whole of the criminal process – to take crime away from the judges and put it back into the suites, the streets and the homes where it actually occurs; to replace the anonymous, de-gendered, declassed abstractions For Personal Use Only Advance Copy

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of Crown and Defendant, the X and Y of philosophical hypotheticals, and give people back their identities; and to question constantly the taken-for-granted beliefs that lawyers have about the way people think and behave and relate to each other. In this edition we have endeavoured in a more sustained way to challenge the Eurocentric normativity embedded in much criminal law discourse by including the lived experiences of Indigenous people and other cultural minorities.

1.2.1

Positionings

Nicola Lacey, in “Contingency, Coherence, and Conceptualism: Reflections on the Encounter between ‘Critique’ and ‘the Philosophy of the Criminal Law’” in A Duff (ed), Philosophy and the Criminal Law (1998), embarks on an elegant discussion of two approac...