Introduction to criminal law PDF

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Introduction to criminal law...

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Topic 1: Introduction to criminal law In NSW, primary sources are the Crimes Act 1900 (as amended) and the common law. The Crimes Act 1900 (NSW) is the New South Wales statute that established most criminal offence for New South Wales. This legislation along with federal acts Crimes Act 1914, and the Criminal Code Act 1995, form the majority of criminal law for New South Wales. 1. What is criminal law? The criminal law of Australia is the body of law made, recognised and applied in Australia that relates to crime. Most criminal law is made and administered by the individual states and territories of Australia. However, a body of criminal law is also made and administered by the federal government. Criminal law may be differentiated from civil law, which in Australia related to non-criminal law including civil wrongs, contract law, much of property law and other areas that concern the rights and duties of individuals amongst themselves. The role of criminal law: 

Create a safe, peaceful society;

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Criminal law stems from the social contract. We come together to form a society; that requires that members give up some freedom for social order

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Only Government can use force/coercion (jail time/police). This is legitimate because we agree (social contract) and their use of force is limited by the law.

It is intended to create a safe society by regulating behaviour of its members Criminal Law is the ultimate coercive power of the state. Criminal law has two aims: 

Regulate conduct of individuals; and

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Regulate conduct of Government actors

There are two parts to criminal law 

Identity of the offences and the defence for each crime

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Criminal procedure

2. What is its purpose? The role of criminal law: 

Prevent crime

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Punish offender for wrongdoing (proportional to the nature of crime and the damage done)

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Deter crime

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Community protection

3. What is the ‘harm principle’? According to John Stuart Mill, Criminal law should limited to conduct which harms others. Though Australia is a liberal democracy there are victimless crimes which fall under criminal law. Some crimes are made criminal for their perceived moral wrongness.

crimes are made criminal for their perceived moral wrongness. The problem with founding criminal laws on ‘moral wrongness’ are: 

Who decides what is morally wrong

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Can lead to tyranny of the majority

4. Should immorality be a precondition for criminality? There are several arguments as to why immoral conduct should be criminal: 

The immorality of the conduct supplies a sufficient reason for criminalisation (there has not, however, been a clear equation between crime and sin e.g. attempted suicide may breach positive morality but it is not a crime)

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Immorality is a necessary condition for criminalisation

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Certain forms of immoral conduct undermine the shared beliefs essential to social cohesion and should therefore be criminal o

This reflects an indirect form of the argument based on harm: the harm is to the social order rather than any individual

5. What other areas of law carry out similar functions to the criminal law? 6. Who ‘makes’ the criminal law? Most criminal law is established by statute, which is to say that the laws are enacted by a legislature. For NSW, the NSW parliament enacts the laws. For Common Law, judge made laws. 7. What is the role of the DPP? The NSW Office of the Director of Public Prosecutions (DPP) prosecutes serious crimes under NSW law on behalf of the community. These are called ‘indictable’ offences.

They are an independent agency and make all prosecution decisions independently according to their Prosecution Guidelines. They do not investigate crime – they take matters over from NSW Police and other investigative agencies, including the Independent Commission Against Corruption (ICAC), after they have completed their investigations. In court they represent the community, and must act with fairness to establish the trust. All prosecutions are brought on behalf of the Queen (R). 8. Why might prosecutorial discretion have an effect on the operation of the criminal law? 

Is it in the public’s interest

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Do they have enough evidence to secure a conviction

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Resources

9. Who has the burden of proof in criminal law? What is the standard of proof? In Australian, when a criminal prosecution is commenced, the burden of proof lies with the prosecutor. The general rule is that an accused person is ‘innocent until proven guilty’. The standard of proof is ‘beyond reasonable doubt’ which is the highest standard in law. 10. NSW is a ‘common law jurisdiction’. What does that mean?

New South Wales, South Australia and Victoria are common law jurisdictions. These states have legislation which lists the most common offences and fix their penalties, but do not always have exhaustively define the elements of the office. For example, in NSW, section 117 of the Crimes Act 1900 (NSW) states: 117 Punishment for larceny Whosoever commit indictable offence by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provide for, be liable to imprisonment for five years. This section states that larceny (i.e. stealing) is an indictable offence and that the punishment is imprisonment for five years. But neither this section nor the remainder of the Act defines larceny. The offence remains defined by the common law. In NSW, not all the crimes are codified, as such the common law fills the gaps. 11. What is ‘doli incapax’? Firstly, for example not every person can be held criminally liable for example: a person with a serious mental illness (insanity), and children under the again of 10 cannot be guilty of a crime (s5 Children (Criminal Proceedings Act 1987 (NSW))

Doli Incapax- The Criminal Responsibility of Children Deemed incapable of forming the intent to commit a crime or tort, especially by reason of age (under ten years old). In New South Wales provides that a child under the age of ten years cannot commit an offence. This statutory presumption is irrebuttable. The common law presumes that a child between the ages of 10 and 14 does not possess the necessary knowledge to have a criminal intention. This common law presumption of doli incapax is a rebuttable presumption that can be rebutted by the prosecution calling evidence. This means that the prosecution, in addition to proving the elements of the offence, must also prove that the child knew that what he or she did was seriously wrong in the criminal sense. 12. Explain the terms ‘mens rea’ and ‘actus reus’ actus reus = physical element, action or conduct which is a constituent element of a crime 

Prohibited conduct – always includes an act/omission, may include the circumstances in which the act occurs, may include particular consequences

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Legal personhood

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Voluntariness

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Causation

mens rea = fault/mental element, the intention or knowledge of wrongdoing that constitutes part of a crime. 

Intention – where the accused foresaw the consequences of their actions and actively desired the consequences of those actions. It is a subjective test. o

Transferred malice

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Recklessness – where the accused foresaw the possibility/probability of the consequences of their actions but went ahead anyway. It is a subject test.

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Knowledge – where the accused was aware of the existence of a particular physical element. It is a subjective test.

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Negligence – where the accused was not aware of or did not foresee the consequences of their actions. It is an objective test.

Physical and Mental elements must coincide. 13. What problems does the concept of ‘voluntariness’ cause? 14. What is ‘intention’ and how does it differ to motive?

The primary difference between intention and motive is that intention specifically indicates the

mental state of the accursed, i.e. what s going on in his mind, at the time of the commission of a crime, whereas motive implies the motivation, i.e. what drives a person to do or refrain from doing something. Intention is not synonymous with motive – De Gruchy v R (2002) 211 CLR 85. Intention can arise spontaneously. 15. What is ‘recklessness’ and how does it differ to ‘negligence’? Recklessness the standard requires that the accused was aware that there are possible (or even probable) harmful consequences of the action, and yet proceeded anyway. It is determined using a subjective test, but not as narrow as the one of intent, being a lower standard of mens rea. Negligence the standard requires that a reasonable or ordinary person would have known or foreseen that harm was likely to follow from the actus reus, and proceeded anyway. It is determined using an objective test, and is a much lower standard of mens rea. 16. What is ‘transferred malice’? According to the “doctrine of transferred malice”, where the defended attacks someone (or something) with mens rea for a particular offence, misses, but nevertheless “accidently” brings about the actus reus for the same offence in relation to a different person (or different thing), the mens rea can, essentially, be added together, and the defendant can be convicted of the offence.

Practice MC Quiz (a) 1. The doctrine of concomitance of act and intent provides that the physical and fault elements must coincide. An exception developed in Thabo Meli [1954] 1 All ER 373 provides that the physical and fault elements will coincide despite a short interval of time if: The events form part of a single transaction and the act that caused death was designed to cover up the offence involving the intent. 2. In a criminal offence, which of the following is NOT a fault element? Negligence, Recklessness, Intention, Voluntariness, Knowledge 3. The case He Kaw Teh v The Queen (1985) 157 CLR 523 involved a claim of mistake of fact. The High Court held that a defence of mistake of fact would be available if the prosecution has not disproven beyond reasonable doubt the following elements: The mistake must be honest and reasonable and if true, would have made the accused’s act innocent....