Crim first half lectures 1 - 10 PDF

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LECTURE 1-READINGS: Pages 1 - 27I. SOURCES OF CRIMINAL LAW Criminal law in NZ has been codified since 1893 o This doesn’t mean that all the criminal offences are to be found in a single code (as is the case in Canada) o Nor does it mean that all offences must be created by statute and that most of ...

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LECTURE 1-2 READINGS: Pages 1 - 27 I. SOURCES OF CRIMINAL LAW  Criminal law in NZ has been codified since 1893 o This doesn’t mean that all the criminal offences are to be found in a single code (as is the case in Canada) o Nor does it mean that all offences must be created by statute and that most of the basic criminal law doctrines are ultimately referable to some statutory base  Prior to this codification, NZ's criminal law was largely based on the English Common Law o The 1893 NZ Code largely replicated what was considered to be the existing law as derived from England. o It was not until the recodification of the area in 1961 that substantial differences between NZ and English law really began to appear  Initially the Common Law system was essentially the creation of the judiciary  Classical criminal law doctrine was developed on a case-by-case basis, with the courts ostensibly adapting old precedents to meet new situations and concerns as they arose o In this way, new offences could be developed, old offences could be redefined, the ingredients of offences could be clarified and defences could be developed and refined as social and economic relations changed, new ideas emerged, and notions of culpability (guilt) changed  Nevertheless criminal law began to acquire a statutory base… Statute as a Source of Criminal law:  By the early 19th century in England most of the major offences had been incorporated in some way in one statute or another and the courts had largely abandoned their claim to all but a residual power to create new common law offences. o However in England new offences could still be created in exceptional circumstances, the most notorious example being the "discovery" by the HoL in 1962, of an offence of "conspiracy to corrupt public morals" Passage of Criminal Code Act 1893:  With the passage of the Criminal Code Act 1893, legislation became the primary source of criminal law in NZ o Under the Code no new offences could be created except by statute (see the Crimes Act 1961 section 9) o Originally all the major criminal offences were to be found in the Code with the more minor "police" offences in the Police Offences Act 1884 o Today major offences relating to such things as drugs, traffic and corporate malfeasance are found in special legislation and an enormous range of minor offences are found in innumerable other pieces of legislation o The old Police Offences Act has been replaced by the Summary Offences Act 1981, which covers minor assaults, offences of disorder, and a range of other minor criminal matters The Courts as a Source of Criminal law:  Up to judges to interpret the rules set out in the statute, and thus to accommodate those rules to the circumstances of cases o This leaves plenty of scope for the development of case law  Statutory provisions are inevitably ambiguous and incomplete

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In most areas the courts have been left with considerable scope for creative interpretation. o Courts will certainly start by endeavouring to "interpret" the statute, but they will soon move on to the discussion of general principles and the existing case law relevant to the area, primarily drawn from the previous decisions of New Zealand and English Courts.  Courts are clearly making law even in a heavily codified system such as ours This should cause us to reconsider the distinction between the Common Law system in which courts could "create" new offences to meet changing circumstances, and the position under the NZ Code where new offences can only be created by statute. o If the statute is silent and courts are deciding whether or not the definition of the offence requires a particular element, their decision may well in effect "create" a "new" offence. Discussion of Howe: o In Howe the CA held that the offence of riotously destroying a Crown vehicle could be committed by someone who destroyed such a vehicle without turning their mind to the risk that it belonged to the Crown if that risk would be obvious to the reasonable person o Prior to this case it was unclear whether destroying a Crown vehicle with this state of mind would be an offence under the section. Most lawyers probably would have said it wasn't o After Howe it was clear that if the risk would be obvious to a reasonable person then it was an offence. o The CA had in effect "created" an offence to cover the situation  This suggests two things: first, the distinction between Common Law and a system based on a code is not as significant as is sometimes suggested; and second, the courts remain as a vitally important source of law in any codified system.

Other Sources:  Discussions in textbooks tend to largely ignore the actual practice and use of criminal law by victims, police, prosecutors and lawyers. In a very real sense the practices of these actors in the system condition what becomes "the law" and are as relevant to its content as the statutes and the pronouncements of appeal court judges on them  Basic point, is that the criminal law cannot simply be sought in the statutes and cases Indigenous issues:  The criminal law in NZ is the product of colonial history  Nowhere in the discussion is there any mention of the impact of the indigenous system of criminal law.  Maori ideas and Maori customary law are excluded almost entirely from the modern criminal law system in this country  Moana Jackson's report on the relationship between Maori and the criminal justice system: o It was the subject of a colloquium, which confirmed that the relative absence of Maori ideas of criminal law in our criminal law system remains.  This exclusion is despite the fact that criminal law clearly existed in NZ in pre-colonial times.  Jackson argues that the Crimes Bill's "monocultural" approach merely affirms the rejection of Maori values and in effect renders them irrelevant to the whole notion of criminal law, and hence to the whole basis on which social order may be maintained  Parallel criminal law system: o Jackson argues for a parallel system, by, and for Maori.

QUESTIONS:  Jackson states that the "bases, constructs and methods of application" of the Maori "code" were quite different from those adopted by English law.  Look at the description he gives of the system. What are the differences?  Our ways of doing justice are monocultural  Our laws were introduced from England  Prisons, policing, are all British institutions. They have this cultural baggage in them which we can see in fundamental ways  One example, is the English emphasis on individual responsibility. o In Western jurisprudence, an individual is held responsible for the crime o In Māori justice processes, there is a belief in communal responsibility. o Groups were held responsible in pre-colonial NZ. Crime is a breakdown of relationships, a failure of the group therefore one person cannot be held responsible  Punitive culture - does not meet cultural and rehabilitative needs of Maori  The drivers of Maori discontent with the formal European system stems not only from institutional racism and bias, but also because it is based almost exclusively on European justice philosophies and conflict resolution practices, thereby making it culturally inappropriate What were the "sources" of Maori law?  It was customary, woven into the rights of individuals, and the hurt they suffer when their rights are abused.  They refer to the Treaty What does the Committee mean when it concludes that there are no matters in the Bill (i.e. essentially in the current criminal law) which "require amendment to accommodate a specific Maori viewpoint"? Do you agree? Would Moana Jackson? Why/Why not? What do you think the Committee means by the "underlying structural issues" which it accepts may need addressing - albeit in a different kind of inquiry? Do you think that such "issues" do in fact need to be addressed? Why/Why not?  They may be referring to the structural issues that stem from the fact that the Criminal law is based on an English system, structurally it is incompatible at its core for Maori because it is based on an English system so is inherently wired away from including Maori ways of life  It could also be talking about the criminal institutions themselves, that have institutional racism built into their structures  Colonial system

II. CODIFICATION  NZ has had criminal code since 1893  Not until the major recodification in 1961 that NZ criminal law began to depart significantly from its English roots  The style of codification adopted in this country still leaves considerable scope for judicial interpretation of the law. o In some cases, there is silence in the statute on the mental or blameworthiness element to be attached to the offence, which leaves it open to the court to read in (or not read in) a wide range of mental requirements  What are the arguments for introducing a comprehensive General Part into the Crimes Act 1961?

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Since 1893, successive Crimes Acts have consisted simply of a compilation of the major criminal offences, couples with a partial codification of the most important and uncontroversial defences. o General principles have, by and large, not been articulated and basic concepts have not been defined. This is what a General Part would do Arguments against? o Questions about the definition and degree of culpability of different mental states or about the precise nature of the conduct required to constitute a voluntary act, are hard questions on which lawyers, judges, politicians and police officers will differ  Nevertheless, it is strongly arguable that it is the role of Parliament to resolve such questions, not to leave it to the Courts to decide on the basis of a few, largely fortuitous cases heard on appeal o The judiciary and the legal profession in general attacked the attempt to include a general part as likely to lead to confusion and uncertainty in the law Gillick v West Norfolk and Wisbech Health Authority o HoL asked whether a doctor who provides contraceptive advice to a girl under 16, knowing that this advice will facilitate or encourage sexual intercourse between her and a man, commits the offence of intentionally encouraging an act of unlawful sexual intercourse. o The HoL held, without any statutory authority and with little reference to case law on the point, that the doctor's advice will be lawful o "The house propounded a new justification for conduct which would otherwise be criminal.  "It is essential that the courts should be able to consider the social, ethical and public policy issues involved and to reach the conclusion which, in their opinion these considerations dictated. o What arguments can be made against allowing the courts such a power?  Shows tensions between the courts and parliament

III. THE NATURE AND SCOPE OF THE CRIMINAL LAW  Can think of criminal law as a social normative system: in other words, as a system which operates within a particular social space by setting down standards of conduct, and by enforcing, in distinctive ways, those substantive standards or norms.  Firstly, we can look at criminal law as a moral and as a retributive system o From this point of view, criminal law is a system of quasi-moral judgment which reflects a society's basic values; in which criminal punishment serves the retributive function of meting out to offenders their just deserts  Secondly, we have to acknowledge that criminal law has a regulatory, instrumental or utilitarian aspect o It prohibits certain things on grounds of public health or safety, or for economic or political reasons, and sees the purpose of punishment as deterring that behaviour o This aspect of criminal law underpins offences such as health and safety offences, unwittingly serving alcohol to an underage persona and a wide range of less serious road traffic offences  Harm: o Mill argued the content of criminal law should be circumscribed according to the principle that the coercive powers of the state should only be invoked as a means of preventing 'harm to others', and never to control harmless behaviour or to prevent the person harming herself o The harm principles thus purports to accommodate the concerns of the state whilst respecting individual freedom

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Yet although the harm principle captures some strong and widely held intuitions about the proper limits of state power and the value of human autonomy, the test of 'harm to others' is notoriously difficult to apply  This is mainly due to the flexibility of the core notion of harm. o The idea that criminal law should be used only in response to harmful conduct has a strong common-sense appeal Morality o "moral analogy" which evokes the moral/retributive aspect of criminal law o On this view, criminal law does and should engage in a legal entrenchment of certain fundamental moral precepts o When laws are broken the offender is culpable and deserves to be punished; criminal conviction expresses an adverse social judgment of blameworthiness

LECTURE ONE: Harm  How do we define harm?  Is there  Are all instances of personal suffering identified as criminal? What does it mean if a behaviour is determined to be a "crime"?  Morality + community values o Law and morality not same thing, however law can reflect morality.  Culture and society will have different notions of what comprises criminal behaviour o What may be considered criminal somewhere may not elsewhere o Even across time, what is counted as criminal will shift  Has negative impacts on others  Whether or not harm has been caused  In the Crimes Act (statutes)  Some crimes only able to be committed by humans  Crimes  State sanctions o Highest use of state power against the individual that has been found guilty o These are to prevent and deter the act o Enforcement of the police affects who's arrested  Public law? o Why may we not think of crime as being private law? o We don’t have the authority to provide the sanction. The state has stepped in and taken that role away from us  Not to say that on the ground, people don't take matters into their own hand  Procedure o Also identifiable, distinct because of its procedure o Only in the criminal law context that you get charged, that you get put through a trial process, and can be sentenced under the sentencing act o Very long complicated matter of criminal procedure different to civil procedure. Could almost identify a crime by what procedure it's dealt with under How do we know what criminal law looks like?  Difference between collective and individual responsibility  Notion that community views it as collective responsibility. We don’t view thi

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When somone is guilty of a crime, they are so as individuals. The only exception and not really, is when there is secondary parties to a crime

Where does criminal law come from?  Codified: has a statutory base since 1893. o Every crime has to be written down in statute o Exception: contempt of court. This is not in any statute, it is determined at common law o Court denotes the punishment for that defence o Huge swathes of criminal law missing from the code so courts have important role o Codification was supposed to make criminal law more accessible - not super true  Legislature  Courts And  The law in theory o The on-going search for principle in law  The law in practice o Individual exercise of discretion o Societal pressure for change  Sentence lengths  Defence of provocation, don't have this after Clayton because there was so much outrage over his defence of provocation, that the govt. decided to scrap it  Public pressure can make a difference  Tikanga Maori o Can affect the development of any law in NZ o Mason: involved a person who was charged with murder, and attempt of murder. He sought to have his matter dealt with by tikanga maori. o In the HC, lots of evidence was heard, went through to CA who said that for this persons claim to succeed, and to have his matter dealt with by tikanga Maori, there would have to be evidence on two things:  that there was a functional criminal legal system in place between the years 1835 and 1840 when ToW was signed. Also, it would have to be shown that that criminal legal system was in place, and continued to be so and used to as such to the present day o According to the evidence that was placed before the HC and CA, judges accepted point 1. no dobut there was a criminal legal system in place. o BUT according to CA, the operation of s5 and s9 of the 1951 and 1853 act, served to extinguish the Maori criminal law system in the context of the general legal system. Mr Mason could not have his matter heard according to a system of tikanga Maori. Legislation  Crimes Act 1961  Summary Offences Act 1981  …others incl. regulations  BUT: while "set out" in statute, criminal provisions are ambiguous and incomplete Courts:  Judges no longer create new offences  …yet case law is still vital  How important should it be

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Power tensions between what Parliament can do, and how much they allow the Courts do do Courts interpret BUT lack comprehensive guidelines on how to do so. Same for defences, they are not all accounted for in legislation. Some are, but there are other defences that only exist in common law in New Zealand

Tests Test 1:  Wed 1st May 6:30pm Test 2:  Wed 5th June 6:30pm  75 mins  20% of final mark Weeks 3-6  Identifying fault and the objective elements of a crime; (the actus reus)  Determining criminal responsibility for the actus reus  Identifying subjective elements of a crim (the men rea)

LECTURE TWO: Recap Questions 1. Why might criminal law be considered "public" rather than "private"? o We don't have the power to do the sanction, that is a public ability. E.g. the police o The state enforces and punishes the criminal law. We don’t have the right to take retribution against someone that has harmed us o Notion of the state inserting itself in between the people who have sufferred harm by way of breaches by criminal law, and the person who did it. The state intervenes and takes action.  This makes criminal law a concern of the state  It makes it of public applicability and pbulci interest. Very definite public character to criminal law 2. Identify 2 other criteria that can help us identify a "crime" o Harm  Usually some degree of harm you can identify as having been caused by the person charged with the offence o Sentencing - ability for there to be punitive measures o Procedure o Statutes - the Crimes Act  Have to find your criminal offence in a statute, sometimes this might be in regulation  We know its codified so must have a statutory law. Cant just come from case law, has to be from a statue 3. Identify from your own knowledge a moral wrong that is subject to a criminal sanction and one that is not (in your view). What is the significance of this? o Murder o Adultery  Moral wrong, but no criminal sanction - not a direct link between morality and criminal sanctions

Exclusion of Maori Criminal Law  No legal enforcement of a parallel Maori system o It does operate, but cannot be enforced in this legal system according to CA o Tikanga still relevant to the development of our law  Sources of Maori law o Framework of (collective) relationships… o Giving rise to reciprocal obligations  But: o "the path of the perfected law" (  Moana Jackson report: o The crim law system that we have, has excluded certain ideas as being relevant to the idea of criminal law o Our system is the product of colonial history. It’s a thing of its time, and continues to be so  Pg 5 o Presumption that Maori did not have law. Their law was not sufficient  Ani Mikaere o Long been an undercurrent of a reluctance to accept the validity of the criminal law that we are studying (Maori) o "Find a way to put your beliefs into practice. If someone harms you, or if you are involved in a dispute, don’t make the imposter legal system your first port of call. Explore the possibility of employing a tikanga process instead" o Disproportionate system

Pre-Code Criticisms  Codified 1893  Uncertainty o Written in England  Inacces...