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THE CRIMINAL PROCESS

SUBSTANTIVE LAW APPROACH

SOURCES OF CRIMINAL LAW  Legislation: acts and statute passed by parliament  Cases: common law JURISDICTION  Bound by NSW and Commonwealth law COURT HIERARCHY IN NSW  Local court  District court  Supreme court  Court of criminal appeal - highest appeals court in NSW SUMMARY AND INDICTABLE OFFENCE Summary:  local court  Heard by magistrate and no juries Indictable:  Heard in district and supreme courts o Traditionally not tried before jury in these courts  More recent legislation permits indictable offences to be heard in the local court If dealt with summarily - agreed by prosecution and defense that maximum term of imprisonment is less than 2 years GENERAL PRINCIPLES  Actus reus  Mens rea  Burden and standard of proof o Standard = how much needs to be proved in a case  Generally in criminal cases it is “beyond reasonable doubt”  In civil cases it is “on the balance of probabilities” meaning more certain than not (51%) o Burden of proof = which party has the burden of proving particular elements  In criminal is that the burden is prosecution but there are exceptions such as “substantial impairment” QUESTIONS OF FACT AND QUESTIONS OF LAW o Fact - dealing with the factual situation of the case o Law - the legal principles within the case  Responsibility of the jury to question fact  Responsibility of the judge to question the law

o o

DUE PROCESS

In local courts, the magistrate questions both In district and supreme can choose for case to be solely judge  Therefore judge questions both fact and law

Fair treatment through the normal judicial system

SUBSTANTIVE LAW V PROCEDURAL LAW SUBSTANTIVE LAW

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PROCEDURAL LAW   

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Written statutory rules passed by legislature o Define crimes and set punishment Used to determine whether a crime or tort has been committed Defines what charges apply and if the evidence supports the charges Establishes how a legal case flows

Procedural law establishes the process of the case (trial or not) Procedural determines how substantive law will be enforced Substantive law defines how facts are handled and how crime is charged

CONTEXTUAL APPROACH

CRIMINAL PROCESS - THE UBIQUITY OF DISCRETION Pre-trial  Victims  Witnesses  Enforcement agencies - police and prosecutors o Make decisions on whether cases go to court Trial  Judicial officer  Jury  Lawyers - take part in the appeal process (determining if there is a question of law that requires an appeal) SOCIAL AND POLITICAL CONTEXT - RACE/ETHNICITY, SEX/GENDER, CLASS  The factors of the case contribute to the criminal aspects and prosecution CRIMINAL STATISTICS AND OTHER EMPIRICAL EVIDENCE  Discretion impacts on statistics and whether crimes are reported  Public education LAW REFORM  Contextualises criminal law  It is a process - through the Law Reform Commission, public input is allowed  Consequences of these decisions determine the subsequent rulings within courts

HISTORY  Crime is contingent and dependent on social and political context of the period

DOREEN MCBARNET’S TWO TIERS OF JUSTICE Lower courts = first tier Higher courts = second tier Argues that both concept show that criminal justice is carried out in the higher courts notwithstanding that only a small percentage of cases are heard in the higher courts Shows the significant differences between summary justice Administered by magistrates and higher court justice administered by judges She argues that one tlet, the higher courts is for “public consumption the arena where the ideology of justice is put on display” There is a hierarchy of authority and precedent

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Argues that summary offences are trivial As they are dealt with in the local courts - the local courts are therefore trivial lack of presence of press and public o The public benches are often used as a waiting room for the mornings defendants rather than to attend summary courts for interest o To trivial to attract any serious attention from the press o This removes a requisite of due process: that the administration of justice should be public Magistrates can give limited penalties compare to judges The same penalties according to due process must be awarded to all defendants o illogical to minimise the legal rights for those who have infringed the least on the law and to maximise them for those who have infringed the most

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Local courts do not have much legal relevance and not much law o matters in the local court have little legal relevance o Cases constructed as being relatively simple with little law when not considered in great detail o Presence of lawyers = help construct legal cases - look closely for legal principles and matter on which legal arguments can be made

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Almost all criminal law is carried out in the lower courts without traditional due process

PACKER’S MODELS OF THE CRIMINAL PROCESS CRIME CONTROL

DUE PROCESS

Analogy

Assembly line

Obstacle course

Key concern

Repression of crime

Individual protection

Focus

Efficiency, speed, finality

Quality control, concerned with possibility for error

Key site/centre of gravity

Extrajudicial process police, prosecutors

Court, with extensive appeal processes which allows any errors to be remedied

What happens before matters get to court Procedures

Informal

Formal

Presumption

Guilt - early probable guilt of innocence

Innocence - factual and legal guilt necessary

Can be dealt with efficiently

Any assertions of guilt need to be tested in court

DUBBER’S POLICE POWER MODEL - TWO MODELS THAT CONTRAST Crime control model

Police power model

Concept of crime

Infliction of criminal harm by one individual on another

Harm to public interest

Concern of criminal process

Protection of individual rights

Protection of the authority of the state

Criminal law

An institution for the regulation of interpersonal conflict

An administrative mechanism for the enforcement of state authority

Key site/centre of gravity

Extrajudicial process police, prosecutors

Extrajudicial process - police, prosecutors Prosecutors have more authority and are responsible for negotiating plea bargains and making decisions about the case that are merely “rubber stamped” by the judge

ROACH’S MODELS OF VICTIMS’ RIGHTS Punitive model

Non-punitive model

metaphor/analogy

Roller coaster - combines both crime control assembly line and due process obstacle course

Circle - decentres criminal justice process - focus on broader structures - families, schools, employers, town planners, insurers

Focus

Victim’s rights through criminal sanction and punishment

Crime prevention, healing, compensation and restorative justice

Key site and players

Criminal justice agents and process

community

ASSAULT ASSAULT AND SELF DEFENCE ACTUS REUS ELEMENTS ARE FOUND IN THE FOLLOWING LEGISLATION BASIC OFFENCE Act & consequence

1. Assault (and battery) - s61, s59, s60 *2. Assault covers both common law assault + common law battery* 3. Intimidation - s60 4. Throws a missile s60(1) ( prove all 4 )

AGGRAVATED CONSEQUENCES

1. Abh, s59, s60 2. GBH, s4, s33, 35, 54, s60 ( only choose 1 ) 3. Wounding, s35,33, 60

AGGRAVATED CIRCUMSTANCES

in company s35 Police officer s60

MENS REA ELEMENTS OF ASSAULT AND SELF DEFENCE Basic intent - s61, 59, 60, 35 Specific intent - s33 Recklessness - s61, 59, s60 (MR intent + recklessness --> common law), s35 (given at statute)  Negligence - s54  Absence of honest mistake of face -s60 (MR only for police officer)  Absolute liability s59 (only for abh --> assault element of offence = intent/recklessness) *Negligence can only cover GBH not wounding or ABH   

Common Law Assault + Battery S61: common assault --> although not occassioning ABH  In legislation encompasses both assault + battery  Fagan: James: coincidence between AR + MR must exist --> intention can be formed through continuing act Common Law Assault:  Darby: intentionally or perhaps recklessly causes another person to apprehend the immediate infliction of force upon him AR MR always subjective

Act: principles for act - threat of immediate violence: Telephone threats:  Barton (1969): how immediate does fear of violence need to be? Held: dependent on circumstance  Knight: mere threats which may be exercised at any time if at all are not threats of immediate violence, however threat of immediate violence can constitute assault.  Ireland (1997): silent phone calls can constitute assault --> intend to cause fear Mere words  Pemble (1971) threat must be by some physical act Threat of Immediate violence while imprisoned  Zanker (1988) : a threat made to someone while imprisioned, could constitute threat of immediate violencce

Intent --> if proved in 2 then proved in 1 MacPherson v Brown: (intent, knowledgeor advertent recklessness, cannot be inadvertent' --> ought to know should not be MR.  Darby: intentionally or perhaps recklessley  Edwards v Police: intent to produce expectation of immenent unlawful violence or reckless, realising his conduct may do so but persits anyway  Nlackwell: recklessness is foresight of the possibility of relevant consequence

Causing *act must cause fear* Apprehension of immediate inflicting of Intent + recklessness unlawful force DPP V JWH: 'cannot occur untill ictim is aware of accused actions' MacPherson v Beath: reasonableness of fear may or may not be necessary --> if defendant intentionally puts victim in fear on timid person, then reasonableness is not necessary Zanker: continuting effect of threat --> immediate fear can be kept alive by continuing progress (detained meant that act would be executed) Ireland and Burstow: must be immediate apprehension not future fear

Common Law Battery - s61, s59, s60 Darby: An assault is intentionally or perhaps recklessly… a battery is the actual infliction of aunlawful force AR MR Act

Intent + recklessness 

Fagan: battery cannot occur via ommission. Can be continuing and occur over a period of time

Causing infliction of force/violence  Fagan: using a weapon or instrument constitutes battery  DPP v JWH: touching clothes of a person is still assault  Spitting is assault - DPP v JWH

Intent + recklessness

Unlawful, without lawful justifiation Knowledge/recklessness  DPP v JWH: ordinary social intercourse is a lawful contact eg patting someone on shoulder, pushing to get on a bus  Bonora: consent provides lawful justification --> cannot be assault if have consent  Wilson: absent of consent does not need to be proved --> defendant must prove consent was given (assumed consent was not given)

Other offences against the Person ABH, Wounding, GBH, in company --> s59, s35, 33, 54, 60 S59: assault occasioning ABH AR Assault so 1) act

MR Intent + recklessness (see common assault)

Causing Infliction of fear/actual violence (without excuse)

Intent + recklessness (see common assault)

Occassioning ABH Injury to the body  Donovan: ordinary meaning, any hurt or injury calculated to interfer with health or comfort of victim, need not to be permanent but more than merely transient and trifling  MacIntyre: brusing, scratches, less than gbh and wounding Psychiatric injury  Chan Fook: only identifable clinical conditions not mere emotions  Ireland: severe depressive disorder, anxiety disorder + recognisable psyciatric illness  Lardner: 'nervous shock', sleeping difficulties, anxiety, fear and reactions are not conditions  MacIntyre: psychologically in a very serious way going beyond merely transient emotions or state of mind

Zanker: absolute liability --> anyone who occassions ABH is guilty 'once assault has been proved, bodily harm was occassioned'

S35: reckless wounding or GBH 4 offences with section: GBH in company, GBH, wounding in company, wounding *can be proved through alternative verdicts* S35(2) Reckless GBH AR MR Act

intent

Absolute Causes GBH  S4 Crimes Act: destruction of foeutus, permanent or serious disfiguring, GB disease  DPP v Smith: really serious injury  Haoui: injuries do not need to be permanent or long lasting or life threatening but does need to be really serious --> JA Beazley provided examples Or Reckless as to causing ABH --> foresore possibility of ABH but proceeded anyway s4A Crimes Act: element may also be established by proof of intention or knowledge, Edwards v Police: reckless is realises conduct may do so but persits, Blackwell, foresight of possibility or relevant consequence

S35(3) Reckless Wounding AR

MR

Act

Intent

Causes wounding - R v Smith: breaking external layer is insuffiecent --> must break internal  R V bullock: wound may be inflicted by a fist, no instrument necessary  Shepher: split lip only wounding in most techincal sense  Hatch: consequences may vary --> leeway for court

Absolute

Reckless as to ABH In company  Markous: must be an expressed or implied agreement between accused and another to achieve a common result. A mere coincidence of common actions is insufficent

intent

S33 Wounding, GBH with intent to inflict GBH AR MR Act

Intention

Causing a) woudning Absolute liability for wounding with intention to inflict GBH Causing GBH

intent

S54 Negligent or unlawful GBH AR MR Act or ommission

Unlawful or negligent Pullman: unlawful in itself otherwise than by breach of statutory prohibition, does not need to have element of dangerousness D: negligence same meaning as in manslaughter Nydam: act occurred in circumstances which fell so far short of the standard of care which a reasonable man would have exercised Pullman: criminal negligence: prosecution has to establish such a high degree of negligence to disregard for the life and safety of others as to be regarded as a crime agaisnt the community generally and as conduct deserving punishment Lavender: objective test, standard of reasonable man would of exercise from standpoint of a person in the position of the accused

Causes absolute GBH Sentence for MR in a problem: The Men's Rea element for the negligent or unlawful infiliction of GBH, under s54, has been determined in the cases of Pullman and D as the same meaning as in homicide. Pullman defined unlwaful as….. Negligent was defined in Nydam as, with lavender establishing the test to be objective…… S60: Police officer in execution of his or her duty AR ELEMENTS: S60(1) assaults, throws a missile, stalks, harrasses even though no abh occurs (1A) during public disorder (2) occassions ABH (2A) during public disorder

(3) wounds or causes GBH with reckless to abh (3A) public disorder (4) in execution of his duty Mellor v Low: 'intimidate: render timid, inspire with fear, to force to or deter some action by threats or violence or by inducing fear' --> no intimidation can occur untill police officer has been intimidated (effect of conduct on other person) Manton: only requires police officer to experience fear or apprehesnion, it is not necessary to prove that such fear overbore them to such an extent that thy were detered to cause of duty S60(4) as a consequence or in retaliation for actions undertaken by that police officer in the execution of his duty (eg disgruntled people --> from previous actions of police) or because he is a police office Williams: must be exercising lawful authority eg grounds for lawful arrest MR Elements Reynhoudt: strict liability - absence of honest and reasoable mistake of fact However Dixon J dissented that intent must go to all ingredients of the offence This is reffered to in Brennan J He Kaw The, prosecution must prove defendant knew all the facts to make act criminal --> since AR element is that circumstance that police was in execution of duty --> intent (only obiter --> not binding --> gives indication that if it were to come to high court again it may change. Semaan:  Bound to follow majority so strict liability  Magistrate failed to consider whether defendant was labouring under and honest + reasonable mistake of fact as to whether the police officer was acting in execution of duty Topic 5 – Assault; Self-Defence ASSAULT s61 Common assault prosecuted by indictment Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years. Darby v DPP (NSW) (While assault and battery both fall under assault, there can be assault without battery) (2004) 61 NSWLR 558 (NSWCCA)  Dog committed assault – sniffed genitals of Darby.  An assault is an act by which a person intentionally or Giles JA perhaps recklessly causes another person to apprehend the immediate infliction of unlawful force upon him; a battery is the actual infliction of unlawful force. There can be an assault without a battery, and there can be a battery without an assault (as in Gambriell v Caparelli (1975) 54 DLR (3d) 661, where the defendant struck the plaintiff from behind without warning).  Provides common law definitions of assault and battery  Noted that assault is an act by which a person intentionally or perhaps recklessly causes another person to apprehend

the immediate infliction of unlawful force upon him; a battery is the actual infliction of unlawful force – there can be assault without battery and battery without assault Edwards v Police (1988) 71 SASR 439 Debelle J

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Knight (1988) 35 A Crim R 314 (NSWCCA) Lee J

Summarises the elements of assault when there is no actual physical element The actus reus of an assault when there is no actual physical contact is an act of the defendant raising in the mind of the victim the fear of immediate violence to him or her, that is to say the fear of unlawful physical contact The mens rea of the assault is the defendant’s intention to produce that expectation in the victim’s mind There is an alternative possibility of reckless assault where the defendant whilst not desiring to cause fear realises that his or her conduct may do so and persists with it

Procedural history Crown presented the case to the jury by Charging the appellant with seven charges of assault, all of which were based entirely on words alleged to have been used by a caller on the phone to either Constable Rowles, Mr Henderson or the Judge. Facts   

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Appellant was charged with assault on a bus driver, a summons was made by Constable Rowles. Matter came before Mr Henderson on 8 July 1983, who found the appellant guilty. Appellant appealed to the district court and the appeal came before Justice Muir on 24 May 1984 who dismissed the appeal. From August 1983 - Mr Henderson SM began to receive abusive and threatening phone calls at his home. From June 9 1984 Mr Constable Rowles and other persons in the police force received telephone calls threatening death or injury to the constable and contained abuse and assault. From 10 August 1984, Judge Muir began to receive calls at his home and at his chambers of the same nature. Crown presented the case to the jury by Charging the appellant with seven charges of assault, all of which were based entirely on words alleged to...