LAW162 Textbook Summary PDF

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Course Notes! Textbook! LAW162 - Criminal Law

Topics Subsections Legislation! Cases! Textbook Refs! Important to note / key words

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Criminal Trials Bench Book

Intro - Criminal Law: Role, Overview and Offence Elements Chapter 1 Summary: What makes crime, crime? • Proprietary Articles Trade Association v AG (Canada) [1931]! • Lord Aitken - ‘state prohibited and provided for punishment’, not morality. ! • Evans v NSW (2008) FCA:! • RE limited capacity to challenge criminality in court. Contrary to World Youth Day Act 2006 (NSW), protesters handed out condoms and talked about Catholic stances. Sought annulment of law which prohibited ‘annoyance or inconvenience.’ Unconstitutional as limits freedom of speech not supported by s58 and can not be read down validly (subordinate legislation and not stated sufficiently to overcome presumption).! • Taxation Admin Act 1996 (NSW)!

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• Non crimes with penalties. While a crime is what Parliament calls it, what about ‘punishable’ civil conduct, such as ‘penalty tax’ for failure to meet tax obligation. Criminal procedure rules don’t apply, no proof beyond reasonable doubt, penalty applied by body making allegation.! Per Frankfurter J in US ex rel Marcus v Hess ‘Punitive ends may be pursued in civil proceedings, and, conversely, the criminal process is frequently employed to attain remedial rather than punitive ends.'! Gapes v Commercial Bank of Aus (No 2) (1979) FCA! • Purposive interpretation to determine if breach of s119 (allowed person to ‘sue’ for failure to pay award wages) was criminal. ! Mostly circular arguments - even ‘decriminalised’ acts can remain within criminal law - SA expiation notice for cannibis: if paid, not a crime, if not paid, a crime - remains a crime under Cont. Sub Act 1984 (SA), criminal procedure applies, expiation is administrative procedure not true decriminalisation.! CEO Customs v Labrador Liquor Wholesale Pty Ltd (2003) HCA! • Stat terp appears crim (conviction, penalty, etc) but explicitly states civil proceedings. Hayne J - No ‘essential character’ of proceedings, ‘process of distillation not apparent’. Adjudicated based on whether defendant subject to ‘conviction’ (itself unclear), per stat description of offence. ! • Kirby J - ‘lying somewhere between compensation, restitution and restoration (the usual business of civil process) and punishment and public denunciation (the usual business of criminal process).’ Judged according to whether consequences are ‘penal’. !

• Shows how legislature can abrogate protections for criminal procedure. !

Role of Criminal Law • Rule of law, not by people - crim law regulates relationship between state and people and to ‘keep the peace, so that people can lead their lives and go about their affairs in reasonable security’ Gleeson CJ at Boyer Lectures 2000.! • Limits individual power for communal safety but only acts after act committed.! • Kable v DPP (1995) NSWCA (later 1997 HCA)! • Mahoney JA - gap between crim law’s aim to protect (preventative) and its application (post hoc). If A intends to murder B, etc. Community Protection Act 1994 (NSW) held valid, overruled on HCA appeal, breached separation of powers due to role of SC. Could be implemented validly.! • Effectiveness of crim law in preventing crimes depends on understanding of criminality, likelihood of detection, fear of punishment and socialisation into values the law upholds. Most inmates are in jail for repeated same crime type. !

Restraining the State • Law (including crim) also protects individual liberty against the state. Guilt is determined by law, not outrage, likes or dislikes per Mahoney J at Kable.! • Separation of powers in the courtroom execution is law enforcement/prosecutors, those who make allegations can not also judge on them. ! • Cowdery QC (NSW DPP) 2001 on reform ‘We should be careful not to create a monster worse than we already have.’! • State ought to set out in advance what conduct is prohibited and prove, beyond reasonable doubt, that the individual did this, in a fair trial. !

• The ability to protect against arbitrary punishment is limited by no bill of rights. ‘Ability to apply civil penalties or reduce burden of proof’ enables Government to ‘allow favoured sectors of society to avoid the stigma of the criminal process’ and ‘inflict what, in reality if not name, is criminal punishment , while failing to respect the requirements and protection of the criminal process.’ p16-17.! • Not the case elsewhere, see Han v Commissioners of Customs and Excise about ECHR rules against abrogating criminal protections.! • Even contradiction to state human rights law does not invalidate legislation - it is open to parliament to make inconsistent laws. ! • Principle of preventative detention increasingly prevalent - Kable was stopped on role of supreme court in ordering so, would ‘compromise the institutional impartiality of the Supreme Court’ (McHugh J), not preventative detention itself. Legislature may enable Executive to detain, but must do so itself. Such authority is ‘not only non-judicial in nature, it is repugnant to the judicial process in a fundamental degree’ (Gummow J).! • Fardon v AG (Qld) (2004) HCA Gleeson CJ:! • Paradox of judicial abdication to legislature. • ‘It might be thought surprising that there would be an objection to having detention decided upon by a court, whose proceedings are public, and whose decisions are subject to appeal, rather than by executive decision’.! • Regardless of Kable, QLD introduced Dangerous Prisoners (Sexual Offenders) Act 2003 to same end and was upheld, with Kirby J dissenting. !

• Kirby raised 5 factors - civil commitment to prison; detention absent new crime on basis of future reoffending; nonconformance to extant standards for preventative detention (mental illness etc); imposition of punishment on class of prisoners inconsistent with court and its judicial power; and double punishment on prisoner on past behaviour.! • Habeus Corpus - enables judiciary to confirm legality of detention.! • Detention is classified as punitive/penal so that courts can review, because liberty is fundamental. Exceptions include immigration detention of ‘unlawful noncitizens’; quarantine for public health, mentally ill / legally insane for community protection and non-punitive protection orders. ! • In Fardon, ‘prisoner’ remains so, and in prison no less. Court should be concerned with actuality, not terminology. ! • Not only no analogy to mental illness, stated departure from it. Future risk focus only, showing novelty of provisions - though similar to Bai Act provisions, but these only cover detention on pending charge, clearly different.! • ‘in matters of constitutional evaluation, substance, and not mere form, provides the touchstone’. Not only is the prisoner punished further, but harsher (no release). ! • Majority disagreed and validated law - held that class (not individual), and discretion granted to court, meant it was not inconsistent with judicial functions.! • Crimes (High Risk Offenders) Act 2006 (NSW)! • Subsequently other states followed enables CDOs to detain high risk sex/violent offenders to be imprisoned, and states that it is civil proceedings (s21).! • Thomas v Mowbray (2007) HCA!

• Cth also allows, per Crim Code Act 1995 (Cth). ! • Also allows national security detention ASIO Act 1979 (Cth) Div 3.! • Al Kateb v Godwin (2004)! • On detention of a non citizen, without proof beyond reasonable doubt that accused engaged in prohibited conduct.!

Burden of Proof • Woolmington v DPP, Viscount Sankey LC ‘golden threat’ of ‘web of the English Criminal Law’ is prosecution to prove beyond reasonable doubt. Confirmed in statute Evidence Act 1995 (NSW) s 141.! • HCA ‘beyond reasonable doubt’ is general application and needs no explanation.! • Green v R (1971) HCA! • Appealed rape conviction due to claimed misdirection of jury on beyond reasonable doubt. ! • Thomas v R (1960):! • Reasonableness is for jury to decide -! • Attempting to explain obscures point that doubt, if deemed reasonable, is to be given to accused.! • Not confined to a ‘rational doubt’ or ‘doubt founded on reason’.! • Darkan v R (2006) - ‘extreme and exceptional’ stance against explaining because ‘more likely to exacerbate a jury’s uncertainties than alleviate their concerns’.! • R v Dookheea (2017) - No error to contrast ‘reasonable doubt’ with ‘any doubt’, but risks obfuscating jury’s understanding. Commended contrasting civil and criminal burdens. !

Discretion • Discretion at level of law enforcement/ prosecutors is generally outside scrutiny.! • Discretion of courts to refuse to hear on grounds of double jeopardy (R v Carroll 2002)

or amounts to abuse of process; bound to fail (Ridgeway v R 1995), oppressive (Walton v Gardiner 1993), unfair by prosecution delay/ conduct (Jago v DC of NSW (1989)).! • Likiardopolous v R (2012) 247 CLR 265! • Appellant convicted after trial of murder, directed five others to kill intellectually handicapped man kept prisoner in appellant’s home, though other five were guilty only of manslaughter. Appellant asserted unfair and abuse of process that he got murder jointly while others manslaughter.! • Maxwell v the Queen, Gaudron and Gummow JJ - independence and impartiality of judicial process if courts concerned with who was prosecuted for what, making parts of the prosecution process insusceptible to judicial review. ! • Maj - Moral culpability of accessory can be greater than principal offender - older, dominant, issued direction. ! • French CJ - Statutory appointment of DPP and discretions available at statute may be open to more review by court. In obiter, ‘agreement not taken as acceptance that exercise of statutory power or discretion is immune for judicial review for jurisdictional error, however limited scope of review is’.!

Role of Lawyers • Imperative that prosecution (crown) and accused (defence) represented by competent and ethical lawyers, primarily responsible to the court not their clients. ! • Prosecutor • Represents the state, not the victim. Duty to ensure all evidence fairly and accurately put before court. Police prosecutor, govt agency, or DPP in higher courts. DPP can take over any subordinate matters (including private person). !

• Represents community - both to protect innocent from prosecution and charge guilty.! • Dominant consideration is whether offence, or circumstances of its commission, are such that prosecution is in public interest. PI is met if admissible evidence establishes offence, reasonable prospect of guilty finding by reasonable jury properly instructed of the law and no other discretionary factors dictate the matter should not progress.! • Discretionary factors include seriousness or triviality of offence, ‘technicality’, obsolescence, counter-productive (brings law into disrepute), special circumstances preventing fair trial, considerable general public concern, length, expense and alternatives to trial, offender/witness/victim’s youth, immaturity, infirmity etc, offender’s willingness to cooperate, cultural background.! • Must not include race, sex, national origin, political association/beliefs, prosecutor’s feelings towards parties, political advantage.! • Subject to LPA 1987 (NSW).! • Livermore v R (2006) 67 NSWLR 659! • CP ‘after careful consideration I have come to the realisation that one of the witnesses in the trial is an idiot’ to jury RE complainants boyfriend.! • Review of authorities holds CP behaviour warranting censure:! • submission based on material not in evidence! • intemperate/inflammatory comments arising prejudice or emotion in the jury! • belittling or ridiculing accused’s case! • impugning credit of witness where not not afforded right of reply! • conveying to jury CP’s personal opinion! • Repeated calling witness idiot implies to jury that to support case would render them idiots also.! • Appeal allowed. !

• Obligations include full disclosure of relevant material to defence including info on credibility of witness, calling all relevant witnesses not just supporting ones, avoiding inflammatory language and prejudicial statements, belittling defence case, conveying personal opinion or indicating facts contrary to evidence.! • Defence • Acts for clients who are entitled to acquittal if prosecution does not establish guilt beyond reasonable doubt. ! • Required to act IAW client’s instructions providing this does not mislead court. May defend client even if admitted guilt. ! • If defence learns client or client’s witness has lied, falsified or suppressed, must inform client that court should know and request permission, refusing to continue if not.! • If defence knows client is guilty but pleads not guilty, must not falsely suggest another committed offence, must not set up affirmative case inconsistent with confession, but may argue evidence does not suffice, is not guilty for other reason of law, and may argue that client should not be convicted by any argument not prohibited above. ! • If defence knows a client will disobey court’s order, must advise against and inform of consequences, not advise on how, but is not bound to inform court unless threat to person’s safety exists.! Right to a defence? • Not directly, but lack of legal representation for serious offences can lead to acquittal for unfair trial, HCA held serious trial of indigent client must delay until representation acquired.! • Dietrich v R (1992) 177 CLR 292! • D guilty of importing heroin, was unrepresented as legal aid would not help

unless plead guilty, appealed on ground that trial miscarried.! • No right to representation at public expense but right to fair trial. Per Deane J in Jago v District Court (NSW), fair trial right is better expressed in negative terms - a right not to be tried unfairly or immunity against conviction other than at fair trial. ! • Lord Devlin “where there is no legal representation … the adversary system, whether or not it remains in theory, in practice breaks down”.! • Disadvantaged not just in lack of law knowledge, but inability to reason dispassionately. ! • Judge providing ‘helping hand’ to present possible defences to jury, though such different roles combined present problems.! • Trial judge must decide on stay/ adjournment based on whether lack of representation will lead to unfair trial. HCA serious case unrepresented in exceptional circumstances only.! • Trial judge appeared not to be aware of his ability to adjourn. Not guilty on fourth count added to case - perhaps credible counsel could have extended this guilt to all. ! • Dietrich applied due to lack of full time counsel with legal aid restrictions at R v Chaouk (2013), but does not extend to all per NSW v Canellis (1994). Limits:! • Not applicable in civil or committal proceedings, non-serious criminal. Only defendants, not to do with witnesses or inquiry witnesses.! • At Sinanovic v R (1998) Kirby J noted Dietrich not extended to criminal appeals, extension should be left to legislature.! Incompetence of Defence Lawyer • R v Birks (1990) • Gleeson CJ, while usually a defendant is bound by the acts of their legal

representative, a court must interfere where such conduct results in a miscarriage of justice. Principles:! • CCA has power and duty to intervene in miscarriage (considered in light of criminal justice system’s operation).! • Generally accused is bound by conduct of counsel, regardless of whether it was in accordance with wishes of accused. Conviction not set aside because conduct contrary to or without instructions from accused, or even with errors of judgement or negligence.! • Threshold of mishandling in trial at ‘flagrant incompetence’ or other cause that will involve or cause miscarriage of justice. Impossible and undesirable to define, but attract appellate intervention.! • Per Gleeson CJ at TKWJ v R (2002) where appellant claimed miscarriage due to failure to raise ‘good character’ at trial (because witness could introduce new offences), stressed the importance of trial counsel to conduct trial as they think best.! • McHugh J on ‘flagrant incompetence’ conduct of counsel is sub-issue of importance only as far as it causes miscarriage of justice per s 6(1) of Crim Appeal Act.! • Nudd v R (2006)! • Despite crucial failures, including misunderstanding of elements of offence HCA denied appeal, as case was ‘so strong it was in effect unanswerable’. ! • Callinan and Heydon JJ ‘just as in medicine there may be terminal cases not even the most brilliant surgeon can remedy, there will be prosecution cases which an accused could not successfully defend with the aid of the most resourceful and competent of counsel’.!

• Key matter is whether accused should give evidence, making counsel’s advice on matter crucial to fair trial.! • R v Kennedy [2017] SASFC - Accused gave evidence due to lack of advice, thinking he had to. Miscarriage and retrial granted.! • Craig v R (2018) - counsel incorrectly advised past offences would be cross examined, and correctly advised that inconsistencies would be also. Wrong advice not necessarily miscarriage, rather assessed on effect of advice on trial. Appellate court must be satisfied accused wanted to and advice deprived opportunity to do so. !

Elements of a Crime • Elements, or ingredients, of a criminal offence must all be individually proved beyond a reasonable doubt or the accused can not be convicted.! • Divided into physical and mental elements:! • Physical: actions or omissions that are prohibited.! • Mental: state of mind that must have existed at the time of the physical element.! • Eg - physical element of murder is “act or culpable omission of the accused that caused the death of the deceased” and mental element is “intention to kill or inflict grievous bodily harm or recklessness as to death”.! • MCCOC - Model Criminal Code Officer’s Committee, made Model Criminal Code to try to review criminal law for national application.! • MCCR Chap 1 and 2 (general principles of criminal responsibility) held that actus reus and mens rea are dispreferable to ‘physical elements’ and ‘fault elements’. Old terms still widespread.! • Physical Elements: • Action is prohibited - i.e. driving in excess of speed limit.! • Effect is prohibited - i.e. causing death.!

• Circumstances are part of physical element - i.e. consensual sex is not illegal, but is if a party is under 16 years of age.! • Fault Elements: Must co-exist with physical elements. Without it, not guilty, ‘no matter how reprehensible or stupid he or she may have been’. Can be subjective (what did they know or think?) or objective (what would a reasonable person in the position have realised?) Entails:! • Intention - foresaw consequences of actions/culpable omissions and actively desired them! • Recklessness - foresaw consequences of actions/culpable omissions and proceeded in face of this foresight. Usually a foresight of possibility of consequences of conduct/ omission. Can be reckless while intending.! • Knowledge: was aware of existence of physical element, i.e. possession of prohibited substance. • Negligence: While not foreseen, reasonable person would have had such foresight.! • Wilful blindness suggested as fifth deliberately refrain from making inquiries to avoid finding out essential facts (R v Dykyj (1993)). Not actually separate, rather is evidence jury can use to determine knowledge, intention, foresight, recklessness depending on fault element required (R v Crabbe (1985)).! • Can be individual or several of these fault elements, Criminal Code has default fault elements where none is specified. ! Motive! • Motive mostly irrelevant - intention and motive not the same thing. ‘Immaterial so far as regards criminal responsibility’.! • De Gruchy v R (2002)! • Charged with murder of family members, raised good character, good relationships

with family and failure of crown to show motive.! • Motive, if proven, can allow jury to infer intention. Relevant to question of whether accused committed offence.! • Absence of motive is relevant, but absence of proven/apparent motive is not proven absence of motive. ! • ‘The law does not require impossibilities’ so motive is no...