LAW351 Criminal Law A - Exam Notes PDF

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SYNOPSIS No 1: Introduction, Interpretation and Application CRIME: WHAT IS IT AND HOW IS IT MEASURED? See Blackwood & Warner, 1-4. A wrong punishable by the state. A crime generally involves both an actus reus (guilty act) and mens rea (guilty mind). However, where the offence is one of strict or absolute liability, there is no need to prove mens rea: He Kaw Teh v R (1985) 157 CLR 523. The prosecution must prove beyond reasonable doubt that a specific crime has been committed before the offender can be convicted: Thomas v R (1960) 120 CLR 584. | AN indictable offence: Criminal Code Act 1924 (Tas) s1. Criminal statistics do not perfectly reflect the real rate of crime. Not all crime is reported to the police. While the criminal justice system plays an important part in the response to crime, the criminal justice system is never going to substantively affect the incidence of crime because criminal decision making is influenced by many factors, some of which the criminal justice system cannot hope to affect, like social, economic and cultural factors. As such, simplistic demands for more policing, greater powers, and longer sentences have never been shown to significantly affect the crime rate. Broader social polices (housing, welfare, job creation, child care, public transport, town planning, etc.) are likely to have significantly greater impact on the incidence and control of crime.

DERIVATION OF TASMANIAN CRIMINAL CODE See generally: Blackwood & Warner, 42-3. After federation, Criminal Law remained primarily a state matter, as the Commonwealth has no express power to legislate with respect to criminal law as a distinct subject matter. Criminal offences can be created by the Commonwealth only with respect to matter which are incidental to the exercise of some other power under the Constitution. Thus, the Commonwealth Crimes Act 1914 deals inter alia with the offences against the government such as the destruction of Commonwealth property, obtaining by false pretences to defraud the Commonwealth; offences by and against Commonwealth public officers etc. When a Commonwealth offence is enforced in a state or territory, it is supplemented by the law of that state or territory: Commonwealth Places (Application of Laws) Act 1970. If the Commonwealth offence duplicates a local offence, prosecution can be laid under either.

ADOPTION OF THE CRIMINAL CODE

1. SOURCES: See generally: Blackwood & Warner, 42–3. As Criminal Law remained primarily a state matter, Federation had little effect on the criminal laws in force in each state, and each state remains responsible for its own criminal law. The criminal code is derived from the English common law. Source of Criminal Law in Tasmania - Criminal code, other state legislation, common law, and Commonwealth and Imperial statutes. Not all jurisdictions have Criminal Codes (e.g. Vic), jurisdictions with no criminal code derive Criminal Law from common law. Summary offences are tried in courts of petty sessions and indictable offences in the supreme court, irrespective of whether the law against which a person has offended is Commonwealth, state, or Imperial, because state courts have been invested with jurisdiction to try offences against Imperial and Commonwealth Statutes. M Goode, ‘Codification of the Australian Criminal Law’ (1992) 16 Crim LJ 5. 2. STRUCTURE: Criminal Code Act 1924 ss 2–6

THE CRIMINAL CODE: INTERPRETATION AND APPLICATION 1. INTERPRETING A CODE The Basic Rule Bank of England v Vagliano Bros [1891] AC 107 First examine the language of a statute, and to ask what is the natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to state with the inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. Vallance (1961) 108 CLR 56, 76 (Windeyer J) Don’t look a code as if it is a blank slate.

Criminal Law: Law 351

Permissible to resort to common law to interpret code. “we cannot interpret its general provisions concerning such basic principles as if they were written on a tabula rasa, with all that used to be there removed and forgotten.” Boughey (1986) 65 ALR 609, 617 “A basic objective of any criminal law should be, where practicable, the expressions of the elements of an offence in terms which can be comprehended by the citizen who is obliged to observe the law and (where appropriate) by a jury of citizens empanelled to participate in its enforcement.” Barlow (1997) 188 CLR 1, 31–3 (Kirby J) 1. Courts must give the language of the code, … its natural meaning. If that meaning is clear and unambiguous, it must be given effect. The court will only look externally to other sources where the meaning is doubtful wither because of the inherent ambiguity of the language used or because the words used have previously acquired a technical or special meaning.… 2. But in the stated circumstances (when the Code employs words and phrases that are conventionally used to express a general common law principle, it is permissible to interpret the statutory language in the light of decisions expounding the common law including decisions subsequent to the Code's enactment), regard may be had to the preexisting common law and parallel developments in non-code jurisdictions. 3. Where there is ambiguity and where alternative constructions of a code appear arguable, …. favour the meaning which achieves consistency in the interpretation of like language in the codes of other Australian jurisdictions. It will also tend to favour the interpretation which achieves consistency as between such jurisdictions and the expression of general principle in the common law obtaining elsewhere. 4. In giving meaning to a particular phrase or word in a code, it is important to read it in the context of the code taken as a whole. Charlie (1999) 162 ALR 463, 465 (Kirby J) “Where there is ambiguity, and especially in matter of basic principle, the construction which achieves consistency in the interpretation of like language in similar codes of other Australian jurisdictions will be favoured. But before deciding that there is ambiguity, the code in question must be read as a whole.” See generally: Pearce & Geddes, 352–56.

Criminal Law: Law 351

2. THE RELEVANCE OF THE COMMON LAW (i) Applying the rule in Vagliano’s case (a)

Words of technical meaning Vallance (1961) 108 CLR 56 meaning of ‘maim’ Resort to the common law for a legal definition where a ‘law word’ such as ‘main’ is not defined in the Code. | It was held that common law could be referred to as the word ‘maim’ was not defined in the Code. ‘Maim’ = crippling injury such as the loss of a limb. Murray [1962] Tas SR 170 meaning of ‘abets’ Facts: The appellant had been charged with murder on the basis that he aided, abetted or instigated the acts of another man. He was found guilty of manslaughter and appealed. Held: Gibson J [198]: ”’Abets’, although a word current in ordinary English speech, had prior to the passing of the Criminal Code Act 1924, acquired a technical meaning in the law…” Crawford J [201]: “…..’Abet’ has no statutory definition and therefore is it proper to give it the meaning it had at common law….” Hennessey [1976] Tas SR 154 meaning of ‘takes’ Facts: D was charged with stealing a car. The Code in s 226 provides that it is stealing if any person without the consent of the owner takes anything capable of being stolen with intent permanently to deprive the owner. D claimed that when he took the car he did not intend to keep it. On the ordinary meaning of ‘takes’ (to grasp or seize) he would appear to have had a good defence. But the common law had defined ‘takes’ differently. Held: Neasey J at 2: The word ‘take’ is a word and expression which embody and were intended by the legislature at the time of enactment of the Code to embody well-established common law concepts. The word ‘take’ should be given the common law meaning as per the case in Riley (1853) 1 Dears CC – rightful taking could not be converted into larceny. The word ‘take’ is not restricted to an initial taking out of the possession of its owner or another person in lawful possession, but it includes any unlawful abstraction of the goods away from rightful possession which is continuing when the animus furandi is subsequently formed. Devine [1982] 8 A Crim R 45 meaning of ‘wounds’ Criminal Law: Law 351

Facts: D was convicted of wounding contrary to s 172 of the Code by slashing V’s face with a knife causing a cut 1 cm long which bled profusely and required 3 stitches. The trial judge had directed the jury that a wound is an injury by which skin in broken and there is bleeding. On appeal, common law authorities on the meaning of ‘wound’ were canvassed. It was argued that a cut into the dermis is not sufficient, there must be evidence that all the layers of skin have been broken to their complete depth so that the laceration involved the complete depth of the dermis. Held: The interpretation of common law authorities was rejected by the court. Green CJ at 46: The word ‘wound’ is an ordinary code used in a Code and thus in accordance with well-established principles it should be construed according to its natural meaning without reference to the meaning which had been given at common law. R v LK (2010) 266 ALR 399 at 431-432 meaning of ‘conspires’ Facts: This case involved a plan to transfer $25m to a swiss bank account. Held: In interpreting conspires in s 11.5(1) of the Code (Cth) is is permissible and necessary to haveregard to the established meaning of the words under the pre-existing law and so knowledge of the facts that makes the proposed act unlawful was necessary ( that the funds were proceeds of crime) and recklessness was not enough. | The words “conspires”, … each had an established meaning in the criminal law at the time of the enactment of the Code. None is defined within the code…… The words “conspires”, … are to be understood as fixed by the common law subject to express statutory modification is to be accepted…. These are words that had an established meaning within the criminal law at the time the code was enacted. (b) Words of doubtful import Hodgson [1985] Tas R 75 meaning of ‘wilfully’. the common law may be referred to as to the meaning of ‘willfully’ on the grounds that the words is of doubtful meaning. Day (1845) 1 Cox CC 20 meaning of ‘person of another’ the word ‘person of another’ includes clothing of the assaulted person Coney (1882) 8 QBD 534 meaning of ‘injurious to the public’

Criminal Law: Law 351

(ii) Section 8 of the Criminal Code Act – Saving of common law defences By virtue of S8 Criminal Code’s common law defences can be imported into the Code unless the common law defence is altered by the Code or is inconsistent with the Code. (a) Its purpose generally: was it inserted ex abundante cautelae? Vallance (above) Facts: The Court was required to determine the mental element for the crime of unlawful wounding in s 172. Held: Taylor J relied upon the use of the word ‘unlawfully’ in s 172 to refer to the common law via s 8. That the wounding must be foreseen as a likely consequence was thus made an ingredient of the crime. |Taylor J (67-8): By virtue of s 8, for the purposes of s 172 a wounding must be taken to be unlawful unless according to the rules and principles of the common law it is justifiable or excusable. Masnec [1962] Tas SR 254 Burbury CJ, Gibson and Crisp JJ (at 265): S8 of the Act,… operates to save ‘all rules and principles of the common law which render any circumstances a justification or excuse for any act or omission,’ but it only does so ‘except insofar as they are altered by or are inconsistent with the code.’ … in any case there is good reason historically for viewing it as having been inserted es abundante cautelae. Examples of the practical operation of s 8: •

Involuntary Intoxication Snow [1962] Tas SR 271 It was argued that self-induced or voluntary intoxication was a defence to the crime of rape. The court was unanimous in the view that the common law thorough s 8 was of no assistance in such a contention because there was no such defence at common law. S17 covered the field as to the defence of voluntary intoxication. But as to involuntary intoxication there was some support for the view that s 8 preserves this common law defence Kingston [1994] 3 WLR 519

Criminal Law: Law 351

Facts: K, a homosexual with paedophiliac predilections, was charged with indecent assault on a 15-year-old boy. K raised the defence of involuntary intoxication as he had been drugged by his co-defendant, P, who intended to blackmail him. He claimed that he had suffered effects as a result of the intoxication that, while not making him insensible, annulled the criminal liability that his acts would otherwise have involved. Held: In criminal proceedings, if it is proved that the necessary intent was present when the necessary act was done by him, a defendant does not have open to him a defence of involuntary intoxication. There is no such defence at common law and the interests of justice do not demand its adoption. •

Honest and Reasonable Belief in the Dissolution of Marriage Martin [1963] Tas SR 103 Issue: Whether an honest and reasonable belief that D was divorced is a defence to the crime of bigamy in s 193. S 193 makes a belief that a spouse was dead a defence but does not expressly make a belief in the dissolution of the marriage a defence. S 14 of the code refers to the defence of mistake of fact in general terms and makes its availability a question of law to be determined on the construction of the statute constituting the offence. Held: Neasey J at 149: “… When considering the defence of honest and reasonable mistake to a charge of bigamy, one is entitled and indeed obliged to take s 8 into account. In this connection, it is to be noted that s 14 does not completely express the common law defence of mistake, … which is why I think it is the more reason why s 8 should be given it’s full effect.” Crawford J: s 8 would preserve that defence if s 14 was not in the code. Look at the current state of the law. (Contemporary Australian Common Law)

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Absence of ‘Hostility’ Phillips [1971] Tas SR 9, [1971] ALR 740 Facts: D had been convicted of murder by drowning V. the question arose as to whether the act of dragging an unconscious person along the bank to a position near the water was necessarily an unlawful assault.

Criminal Law: Law 351

Held: absence of hostility could not be raised here, can only be raised in limited circumstances. This was not in a rescue context. (b) What common law may be resorted to if s 8 is applicable? Martin [1963] Tas SR 103 The common law for the purposes of s 8 is the common law as it stands at the time it is sought to invoke s 8. Therefore, defences which did not exist at the time the Code was enacted may be incorporated. (iii) Where the matter is not dealt with by the Code ‘consent’: Schell [1964] Tas SR 184 Facts: Accused changed with sexual intercourse with a minor. The female, because of mental retardation, was incapable of giving a valid consent. Held: Definition of content was not exhaustive or comprehensive, in order to define consent, it is permissible to resort to common law. criteria for bail: Fisher Unreported Serial No 46/1964 The Code, in s 304, state that the SC may admit to the bail any person in custody upon a charge of a crime. The Code does not specify the criteria the court should consider in determining a bail application, and therefore resort to the common law if necessary. Crawford J relied upon common law authorities in the course of a judgement enumerating criteria of bail. rules as to onus of proof (iv) Conclusion Code is not perfect. C4 – general principles are not specific to a particular offence. There are also criminal offences in other statutes, Do the general principles also apply to other criminal offences in other statutes?

Criminal Law: Law 351

3. THE APPLICATION OF THE CODE (i) Introduction: The problem defined. In Tasmania criminal offences are divided into either crimes (indictable offences) OR summary offences. See: definition of ‘crime’ and ‘offence’ in Criminal Code s 1. [Step 1] Set up type of offence and justification to it. Crime – means an offence punishable upon indictment (triable by jury). Offence – means any breach of the law for which a person may be punished summarily or otherwise. Criminally responsible – means liable to punishment as for an offence. Summary offence – not defined in the code – but heard by the magistrate court Supreme Court has jurisdiction to hear indictable offences.: Acts Interpretation Act 1931 s38(1)(a)(b) Why is the classification important? To determine which court has jurisdiction and which law applies Two Fundamental Questions: (a) Is the ‘offence’ to be classified as summary or indictable? (b) If the ‘offence’ is summary does the Code or the Common Law apply? (ii) Classification Criminal Code Act 1924 s 4 (1) the general principles of the code are applied to all crimes (indictable offences). (3) The code does not apply to summary offences See: Acts Interpretation Act 1931 s 38 (a) When is an offence a summary offence? Acts Interpretation Act 1931 s 38(1)–(3)

Criminal Law: Law 351

A provision expressly or by implication provides: The matter is to be “heard, determined.” 1) summarily 2) by or before justices 3) by or before a court of summary jurisdiction. Example: Police Offences Act 1935 (see the Long Title) S4 - Summary offence – expressly provides that it is a summary offence Long title – All the offence contained in the act are summary offences Sex Industry Offences Act 2005 When act doesn’t provide that it is an indictable offence, it is likely it’s a summary offence. The nature of the offence (less serious) will also suggest that it is a summary offence. (b) When is an ‘offence’ a crime? (Indictable Offence) S 38(2) Acts Interpretation Act 1931 A provision of any Act 1) Constitutes a crime. 2) Offence is made punishable on indictment. 3) Offence is punishable on indictment for a term exceeding 3years and the Act does not specify the offence is to be dealt with summarily. Example: Misuse of Drugs Act 2001 Part 2 Criminal Code s389 – All provisions are crimes (iii) Summary offences which are also crimes: Parallel offences Parallel offences are offences which appear both in the Code (where they are indictable offences) and in other Acts (where they are summary offences). See: Acts Interpretation Act 1931 s 36 (only consider this, where the accused is charged with a summary offence) – offences that are both crimes and summary offences – The general principle of criminal responsibility will come from the code (indictable offence). – The procedure remains summary (dealt in Magistrates Court) Criminal Code Act 1924 s 4 S4(3) - The Code principle applies to all indictable offences found in other Acts. Compare: Queensland Criminal Code s 36

Criminal Law: Law 351

Examples:

(a)

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Assault [Code s 184; Police Offences Act 1935 s 35] Code – indictable offence; Police Offences Act – summary offence (assaults that are less serious) – Which body of law applies? AIA s36 – offences that are both crimes and summary offences The general principle of criminal responsibility (elements) will come from the code (indictable offence). The procedure remains summary (dealt in Magistrates Court) Woolley v Fitzgerald [1969] Tas SR 65 The offender was wearing a white code and walked into RHH ward and attempted to treat a patient (impersonating a doctor). Charged with assault. Was there a code parallel? Assault in Code s182: includes an apprehension of force; assault at CL, not the same as the Code. Held: There was a code parallel. Elements that must be proved are the same. The Act constituting an offence under the provisions of the POA is a like act to that constituting a crime of assault under the Code and consequently the provisions of the Code must be considered in...