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LAWS2510 – Criminal Law ASemester 1, 2020Kylie ZhangLecture 1 – Introduction to Criminal LawMonday 17 FebruaryGeneral Criminal law involves society regulating behaviour.  Conduct is considered a criminal offence when it has been so defined by the law. Offending conduct (traditional: murder, steali...

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LAWS2510 – Criminal Law A Semester 1, 2020

Kylie Zhang

Lecture 1 – Introduction to Criminal Law Monday 17 February

General    

Criminal law involves society regulating behaviour. Conduct is considered a criminal offence when it has been so defined by the law. Offending conduct (traditional: murder, stealing and modern: road traffic, customs and taxation) leads to sanctions. Prosecutions are brought on behalf of the community (wrong done to the community) – eg: The State of Western Australia, The Queen, The People. Criminal law purpose: prevents repetition of offence, express community disapproval of that offence, to prevent self-justice and the formation of community vendettas.

In Australia 

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Criminal law falls within the jurisdiction of the States – not contained in c/wealth reserve powers (s.51)  NB: The Commonwealth has the power to make criminal laws with respect to other areas which it has jurisdiction  Examples: drug importation – banned substances, social security, Criminal law of a state extends to its territorial boundaries. As long as one element of an offence occurs within a territory, the State has jurisdiction – Code WA s12(1)(b) – this also includes telephone calls made into the State.  Commonwealth land – military bases, airports: crimes committed in these areas fall under c/wealth jurisdiction. “common law jurisdictions” – states that don’t have a cade (NSW, VIC, SA)

Western Australia     

“Code Jurisdiction” – Criminal Code covers all principles of Criminal Law. Some "gaps" in the Code are filled by Common Law – eg: causation, "killing on provocation" in Queensland Legislation needs to be closely examined to find out what needs to be proved.  Misuse of drugs Act (s. 6): intention to sell/supply, has possession, prohibited drugs. Case-law from WA and QLD (sometime TAS, NT and Papua New Guinea) can be useful to help interpret the sanctions of The Criminal Code. Except in specific areas where the common law applies to the Code, cases from other jurisdictions have little direct authority – these cases however, may be useful to put forward public policy arguments.

Legislative Framework in WA   

The Criminal Code IS NOT AN ACT of its own right; it is a Schedule to the Criminal Code Act 1913 (WA), which is itself Appendix B to the Criminal Code Act Compilation Act 1913 (WA). The correct citation: Criminal Code (WA) The correct citation of the code is “The Criminal Code” – s.2 of 1913 (WA) Act.  s.4 states: “No person [is] liable to be tried or punished for an offence in WA… except under the express provisions of the Code, or some other statute law of WA, or under the express provision of some statute law of the Commonwealth…”  s.7 enacts that only “common law” offence that exists in WA is contempt of court.

Criminal Responsibility   

NOT REQUIRED IN WA  Under Common Law, it is necessary to prove both a mental element (mens rea) and a physical element (actus reus) in order to be found guilty of a criminal offence. WA proves acts to be criminal if they are not “authorised, justified or excused by law”. If elements of the offence are made out and no defences apply, then the person is guilty of the offence.

Legal Representation  

A person is not required to be legally represented – they can represent themselves. A self-represented accused can be at a significant advantage. The trial judge or the magistrate may provide information to the self-represented accused in the interests of there being a fair trial.

Right to Representation?  

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Dietrich v R (1992) 117 CLR 292 FACTS: Dietrich was charges with various drug offences in the County Court in Melbourne. Prior to trial he applied for Legal Aid but was rejects, although they were willing to make a grant if he were to plead guilty. His attempts to have that decision reviewed failed. Dietrich then appealed to the High Court. RESULT: the majority of the HC held:  There is no general right for a person to be represented in all criminal proceedings  However, people do have the right to a fair trial – “… depending on the circumstances of the particular case, lack of representation may mean that an accused is unable to receive or did not receive, a fair trial.” Dietrich v R (1992) 177 CLR 292, 311 (Mason CJ and McHugh J).

In practice…   

If a person is charged with a “serious criminal offence” and cannot afford their own lawyer, one must be provided by the State – Legal Aid “serious criminal offence” = real chance that a term of imprisonment will be imposed by the Court. With this in mind, Legal Aid’s assessment of applications considers the means of the accused, the facts of the case and the nature of the charge, the availability of Legal Aid funds and the merits of the case.

WA Supreme Court Layout

Role of Participants in the Criminal Justice System Judge   

Decides questions of the law Presides over the proceedings – ensures fair trial Sentences the accused if s/he please guilty or is found guilty.

Magistrate  

Same role as a judge. Decides both questions of fact and questions of law (because there is no jury)

Jury    

Decides questions of fact Ultimately determines whether a person is guilty/not guilty. Sometimes there is no jury, the accused also has the choice.  Can’t find an impartial jury – high profile cases, heavily reported in the media  Complex cases – white collar crimes: fraud Division 6 of Criminal Procedure Act 2004 (WA) shows procedural matters relating to the jury.

Accused  

Generally, doesn’t do much in trial, they casn give evidence in their own defence. Criminal Procedure Act 2004 (WA)

Prosecutor   

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Police prosecutor (Magistrate’s Court) or a lawyer from the Department of Public Prosecutions (DPP) – they represent the State and should act in its interests. Consequently, they are NOT seeking to get a conviction at all costs. Statement of Prosecution Guidelines – the role of the prosecutor  A prosecutor represents the community and not any private / sectional interest, they act interpedently and in the public’s interest.  Act fairly and impartially, they ensure that the prosecution case is presented properly and with fairness to the accused.  Must never seek to persuade a court / jury to a point of view by introducing prejudice or emotion – not to advance any argument that does not carry weight in his/her mind or shut out admissible evidence.  Must inform the court of authorities/trial directions appropriate to the case, even if it unfavourable to the prosecution. Duty to Disclose – s.95 Criminal Procedure Act 2004 (WA)  A. Statement of Material Facts;  B. Any confessional material relevant to the charge;  C. Any evidence material relevant to the charge; and  D. A copy of the accused’s criminal record. After disclosure  prosecution must serve any confessional/evidentiary material received on the accused as soon as practicable.

Defence Counsel/s  

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Acts in the interest of the accused person. Legal Professional Conduct Rules 2010 states: “A practitioner’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty, including but not limited to a duty owed to a client of the practitioner.” – their job is not to decide guilt/innocence, there is someone else to do that. Duty to Disclose – s.96 Criminal Procedure Act 2004 (WA)  A. Any alibi evidence (including all of the relevant details);  B. Any expert evidence that the accused intends to call;  C. Written notice of any contention that a factual element of the offence cannot be proved; and  D. Written notice of any objection to documents or testimony to be given by a witness at trial along with the ground for the objection. After disclosure  accused must serve notice on the prosecution as soon as practicable.

Lecture 2 – Trial Procedure & Classification of Offences Monday 24 February

History – England  

Summary offences – move though the system easier, faster, it is more streamlined Indictable offences – require more procedures  sub-divided into “crimes” and “misdemeanours” depending on whether it was a capital offence or not.  This is to reduce the chances of injustices.

Classification of Commonwealth Offences Indictable Offences 

Maximum penalty exceeds 12 months, it is an indictable offence – unless “contrary intention appears”: Section 4G – Crimes Act 1914 (Cth)

Summary Offences 

Maximum penalty does not exceed 12 months or not punishable by imprisonment, it is a summary offence – unless “contrary intention appears”: Section 4H – Crimes Act 1914 (Cth)

Classification in WA   

Before 2004, we followed the classification set out by England. After 2004, the distinction between crimes and misdemeanours in WA were abolished. Interpretation Act 1984 (WA) – s5 defines “indictable offences” and “simple offences” or all statutes in WA by pointing to s67 

Definitions from s3 of the Criminal Procedure Act 2004 (WA)   

“Indictable Offence”  crimes / offences described by written law as an indictable offence – regardless if it can be dealt with summarily. “Simple Offence”  means an offence that is not an indictable offence. “Either Way Offences”  an indictable charge that, by virtue of The Criminal Code section 5, or another written law, may be tried either on indictment or summarily.

Criminal Jurisdictions of WA Courts s 32 of the Sentencing Act 1995 (WA) – allows for matters to be sent up to a higher court. Magistrates’ Court: s11 Magistrates’ Court Act 2004 (WA)  Hear and determine simple offences  Hear and determine “either way” offences” – cannot be finalised at this court  Commit persons charged with indictable offences to District / SC for trial/sentence  Deals with any statutory offence that is to be dealt with by a court of summary jurisdiction. District Court: s42 District Court Act 1969 (WA)  All of the powers of the Supreme Court to hear indictable offences: s42 (1)  … except where the maximum penalty is life imprisonment: s42 (2) Supreme Court: s16 Supreme Court Act 1935 (WA)  A court of unlimited jurisdiction – given the same powers as the courts in England.

Children’s Court  

Depends on the age of the child when the crime was committed It deals with all areas of jurisdiction – stealing to murder

Onus on Proof  

On prosecution Must prove all elements of the offense, beyond reasonable doubt – if not, the defendant is entitled to an acquittal: Viscount Sankey LC in Woolmington v DPP [1935] AC 462

Trial Procedure Infringement Notices  

Are issued when offences can be dealt with without going to Court Part 2 of the Criminal Procedure Act 2004 (WA) deals with these procedures. Note particularly s9, which outlines the requirements of a valid infringement notice.

Time Limits Criminal Procedure Act 2004 (WA)  s 21 (1) – Prosecutions for indictable offences can be commenced at any time unless the offence dictates otherwise.  S 21 (2) – Prosecution of simple offences generally must be commenced within 12 months of the alleged criminal conduct, unless the offence dictates otherwise or the accused person consents.

Commencing a Prosecution Criminal Procedure Act 2004 (WA)  s 21 (3) – Prosecutions in WA are commenced by means of a prosecution notice  s 22 – allows prosecutions to commence in any Court which has jurisdiction over the person, regardless of whether or not it can finalise the matter.  As a result, all prosecutions in WA are commenced in the Magistrates Court.

Prosecution of Offences Criminal Procedure Act 2004 (WA)s  s 23 – Prosecution is commenced by a prosecution notice  s 24 – The prosecution notice is then lodged with the Court and disclosure occurs.  s 28 – The accused is issued with a court hearing notice (simple offences; see s33 for content) or a summons (indictable offences; see s32 for content) if they are not already in custody or arrested under warrant

Summary Procedures Criminal Procedure Act 2004 (WA) – Part 3  s 59 – The person is given an opportunity to plead to the charge (guilty / not guilty)  Pleads guilty – (s)he is sentenced  Pleads not guilty – the matter will be set down for trial  See Part 5 of Criminal Procedure Act 2004 (WA) for trial procedure.  s 426 of the criminal code – stealing are summary procedures (with limitation)

Indictable Procedures: Criminal Procedure Act 2004 (WA) – Part 4, s 41  The person is not required to plead to the charge but may do so.  If the person chooses to plead guilty and it is not an “either way” offence, the matter is committed to a Court with jurisdiction to sentence. Note: The plea is not accepted by the Magistrates’ Court.  If the person chooses not to plead or makes any other plea, the matter is adjourned to a disclosure/committal hearing. *State Courts also hear Commonwealth criminal offences – you want to have someone experienced in the area rather than just a higher judge –

Disclosure/Committal Hearing  

The purpose is to ensure that all disclosure has occurred prior to the matter going to the appropriate court for trial. s 45 – Once this has occurred, the matter is committed for trial in the appropriate court.

After Committal    

s 83 – Prosecution in the higher court is commenced by indictment. An indictment is an official document, in prescribed form, that is lodged with the Court.  Must use the exact words. See s 85 for the prescribed content of an indictment. s 91 – An accused may be required to plead on the charge by the Court any time after the indictment is presented.

Example Questions Robbery – contrary to s392 The Criminal Code (WA). a. Robbery is a WA offence. s392 Criminal Code states that it is a crime. Hence, s67 Interpretations Act means that it is an indictable offence. b. Robbery is not an either way offence, so it can’t be finalised in the Magistrates Court. If it is an armed robbery, there is the possibility of life imprisonment, so the District Court could not hear the matter (s 42 District Court Act) and it would have to be heard by the Supreme Court. All other types of robbery do not carry the possibility of life imprisonment and so could be heard by the District Court. NB: s42 District Court Act – amended; now it is simply the offences listed there that have to go to the Supreme Court. Robbery is not list, armed robbery heard in District Court. c. Code offence. d. Prosecution bears the onus of proving all of the elements beyond reasonable doubt.

Extortion – contrary to s397 The Criminal Code (WA). a. Extortion is a WA offence. s397 Criminal Code states that it is a crime. Hence, s67 Interpretations Act means that it is an indictable offence. b. Extortion is not an either way offence, so it can’t be finalised in the Magistrates Court. The maximum penalty is 14 years and so it could be heard by the District Court (s42 District Court Act). c. Code d. Prosecution BRD

Permit premises to be used for drugs (s5 MDA) a. s5MDA states that it is a simple offence. b. It is a simple offence, so the Magistrates Court can finally determine the matter (s11 Magistrates Court Act). c. Statutory Offence. d. Prosecution, BRD.

Travelling with infectious animals – contrary to s460 The Criminal Code (WA). a. s460 states that it is a crime, so it is an indictable offence (s67 Interpretations Act). b. This is not an either way offence, so it can’t be finalised in the Magistrates Court. The maximum penalty is 2 years and so it could be heard by the District Court (s42 District Court Act). c. Code. d. Prosecution, BRD.

Stealing chocolates – The Criminal Code (WA). a. s378 states that it is a crime. However, s426(4) permits it to be dealt with summarily. It is an indictable offence (s67 Interpretations Act) but it is also an “either way” offence, as defined in s4 Criminal Procedure Act. b. If it is dealt with summarily, it can be finalised by the Magistrates Court (s11 Magistrates Court Act). If it is dealt with on indictment, the maximum penalty is 7 years, so it may be finalised in the District Court. c. Code. d. Prosecution, BRD.

Advocating mutiny – contrary to s25 Crimes Act 1914 (Cth). a. s83.1 Commonwealth Criminal Code gives a maximum penalty of 7 years. Hence it is an indictable offence (s4G Crimes Act). b. Commonwealth criminal law matters are heard by State courts. This cannot be dealt with by the Magistrates Court as it is indictable (s11 Magistrates Court Act). The maximum penalty is not life, so it could be heard by the District Court (s42 District Court Act). c. Statutory Offence. d. Prosecution, BRD.

Lecture 3 – Criminal Intention Monday 2 March

Common Law  

Need to prove that a person had “fault element” in order to be convicted of an offence. Example of fault elements – Intentional, reckless, negligent or strict liability

Statutory Offences 

For statutory offences in common law jurisdictions there is a rebuttable presumption that the conduct needs to be intentionally criminal in order to convict a person of the offence.

R v Venna [1975] 3 All ER 78   

Facts – The accused was being arrested by some police officers. He was thrashing his legs about wildly and, in the process, kicked the hand of one of the police officers. Held – The accused could be properly convicted of assault occasioning bodily harm; the trial judge’s direction that he could be convicted if he showed a reckless disregard of whether or not he kicked anyone was adequate. Hence, for assault occasioning bodily harm under the Common Law, reckless (as well as intentional) conduct is a sufficient fault element

Criminal Negligence  

Different to torts negligence – has the conduct fallen so far below the standard that it warrants criminal punishment? The negligence must "[show] such a disregard for the life and safety of others as to amount to a crime against the State and [be] conduct deserving of punishment": R v Bateman (1925) 19 Cr App R 8, 11 - 12

Criminal Intention Criminal Code Act 1995 (Cth) Section 5.1 defines the various alternatives for fault elements as: (1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence. (2) Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence Section 5.2 indicates that a person has intention if: (1) They have intention with respect to conduct if they mean to engage in that conduct; (2) They have intention with respect to a circumstance if they believe it exists or it will exist (3) They have intention with respect to a result if they mean to bring it about or are aware that it will occur in the ordinary course of events Section 5.3 – knowledge  A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events. Section 5.4 – recklessness (1) A person is reckless with respect to a circumstance if: (a) they aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (2) A person is reckless with respect to a result if: (a) he or she is aware of a substantial risk that the result will occur; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (3) The question whether taking a risk is unjustifiable is one of fact. (4) If recklessness is a fault element for a physical element of an offen...