LAWS109 Lecture Notes PDF

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LAWS109: Criminal Justice Lecture One: What is Crime? ‘A crime (or offence) is a legal wrong that can be followed by criminal proceedings which may result in punishment’- Glanville Williams, Textbook on Criminal Law (2nd ed, Stevens and Sons, 1983) 27  Note: can, and may  No moral underpinning of why it is a crime, simply what the state say is a law  Ignores race, class, gender, historical and social contexts  Ghandi, Nelson Mandela, Suffragettes, Oscar Wilde, Socrates, Alan Turing, Mohammad Ali  Can be the brute use of power for its own interest to control the masses Linked closely with knee-jerk politics:  Bail Reform o Act initially a mess, reviewed extensively and then Baird ordered another review, still a mess  One Punch Laws o More jail time if you kill someone with One Punch attack intoxicated, than when sober o Why more morally culpable when inebriated?  Anti-Terrorism Laws  Control Orders  Police Powers How should content of crim law be determined?  Prevention of harm  Enforcement of morality  Preserving community welfare and public interest  Human rights? Article 29 of Universal Declaration on Human Rights Prevention of Harm: ‘…the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self- protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.’- John Stuart Mills, On Liberty (Penguin, reprint 1974) 68  Who gets to define what harm is?  Just people? What about animals/environment? Who decides that?  Types of harm- being offended? Psychological damage the same as being offended? Or physical damage?  Potential harm? o Speeding but not having an accident, still illegal. Enforcement of morality:

‘…society may use the law to preserve morality in the same way as it uses it to safeguard anything else that is essential to its existence’ - Lord Devlin, The Enforcement of Morals (OUP, 1965) 179  Somewhat outdated idea but still applicable  Anything that erodes societal values is/should be criminal o Test for immorality: if conduct arouses feelings of indignation or revulsion in ordinary people.  What is immorality? Who decides this?  Often closely tied up with religious ideas o 10 commandments covered by law  stealing food because you are starving but still liable under criminal law o but contract law is not criminal  Immoral but not deserving of criminal punishment  Who’s morality? The majority? o Same sex couples o First mardi gras as a protest, those convicted enveloped in a debate as to expunging their record  Peaceful protest obstructing the public Community Welfare  Criminal law as what is best for the community as a whole  Maintenance of social order and national security  Considerations of costs to the community – financial, social, etc  How far can the protection of community welfare go? o If taken to its logical extension we may find it uncomfortable o Alternatively sex offenders- traditionally believed that you do your time youre free, however current movement of wanting to keep them locked up longer/when they are released they must wear trackers, have a curfew. Continuing their punishment even after they have repaid their debt simply for fear of re-offense  The interdependence of autonomy and welfare o Laws surrounding terrorism linked to surveillance o Children can be detained for suspect of terrorism without a lawyer or being brought before the court Relationship between the three schools of thought:  Can conflict with each other  Crim law is frequently inconsistent with its focus  More complicated than first glance

Lecture Two- General Principles of Criminal Responsibility This lecture:  Burden and Standard of Proof  Capacity  Actus reus  Mens rea  Concurrence of actus reus and mens rea Burden of proof:  Refers to the obligation on a party to prove the facts.  The phrase ‘burden of proof’ is used in two distinct senses: o The legal burden (the generic sense)  The prosecution- the obligation to prove the facts  Defendant doesn’t have to do anything, can be silent the entire time  Presumption of innocence if you had to prove something then there would be no presumption of innocence o The evidential burden  Who is required to put something into evidence  mostly prosecution  can be on defendant in certain circumstances o substantial impairment of the mind  insanity (Porter (1933)) o self defence Standard of proof  The quantum of proof that must be met by the party bearing that burden on a particular issue.  Criminal standard: ‘beyond a reasonable doubt’ o No set definition, judge cannot explain to a jury what it means o Woolmington v DPP [1935] AC 462 (House of Lords) per Lord Sankey: Throughout the web of the English criminal law one golden thread is always to be seen – that is the duty of the prosecution to prove the prisoner’s guilt … If at the end of and on the whole case, there is a reasonable doubt, created by the evidence… the prosecution has not made out the case and the prisoner is entitled to an acquittal.

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Civil standard o Balance of probabilities

Evidential standard of proof:  The standard of proof in relation to the evidential burden is ‘reasonable possibility’ (Jayasena (1970)). General requirements of criminal liability The person must have:  Legal capacity to commit a criminal offence;  Committed the conduct elements of the offence (the actus reus- the action);

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The relevant fault elements (the mens rea- the mental state) for the particular offence; The mens rea must have been present at the time of the actus reus (temporal coincidence); and An absence of any defences or justifications which would negative liability.

Legal capacity:  Crimes can only be committed by legal persons that perform both the mental and physical acts in an exercise of free choice o Excludes:  Children  Those with mental illness  Certain legal persons (children, corporations and people with mental illness) have a status in the law which limits their capacity  In NSW the age of criminal responsibility has been raised to 10 (see s 5 Children (Criminal Proceedings) Act 1987 (NSW)  Doli incapax (commonwealth doctrine that states that children cannot commit a crime) – The presumption that children between the ages of 10 and 14 are incapable of wrongdoing (see CRH (1996)) o Ages 10-14 have rebuttable doli incapax- it is PRESUMED. o Over 14 can be charged o Indigenous 10-12 made up 62% of all children in detention Minimum ages of criminal responsibility around the world:  United States of America o The minimum age of criminal liability is set at the federal and state level in the United States. At the state level, 33 states set no minimum age of criminal responsibility, theoretically allowing a child to be sentenced to criminal penalties at any age. o Of the States that do set a minimum age of criminal responsibility, North Carolina has the lowest at seven years, while Wisconsin has the highest at ten years. o Source: Cipriani D. Children's Rights and the Minimum Age of Criminal Responsibility: A Global Perspective (Ashgate 2009) 221-2.  Mainland China o Generally, people can be held criminally responsible from the age of 16, but children can be held criminally responsible for a number of offences including intentional homicide, drug-trafficking, arson, explosion or poisoning from the age of 14. [Criminal Law of the People's republic of China, Article 17]  Pakistan o Under the Penal Code, no one can be held criminally responsible for an offence carried out while under the age of seven. Children older than seven and younger than twelve can only be punished where they have “attained sufficient maturity of understanding to judge the nature and consequences of [his or her] conduct on that occasion”. [Penal Code, Sections 82 and 83] Corporations and capacity:

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Corporations are legal persons and may be indicted for and convicted of a crime (s 10 of the Criminal Procedure Act 1986 (NSW)). Section 4 of the Crimes Act 1900 (NSW), definitions, also states: o Person, Master, and Employer severally include any society, company, or corporation. Where a director or manager is exercising a controlling mind of the corporation when she has committed a criminal offence, then the doctrine of identification holds that not only is the director/ manager liable, but so too is the corporation.

Actus Reus/conduct:  The action o Fowler v Padget (1798)  Cannot have a guilty action without a guilty conscience  Act must be a caustation  The actus reus is broadly defined as the non-mental element, in other words, everything the mens rea is not.  Different crimes have different actus reus elements  Causation is a common actus reus element to many crimes  Can be: o A positive act o an omission, or a failure to act (less common, need to establish a legal duty) o Situational/ or status offences Omissions:  A duty to act: o Due to relationship  E.g. parent/child, doctor/patient, teacher/student o Statute  If statute says you must do something and you don’t then you are liable o Assumption of duty  If you take responsibility for something and stop doing it and something happens then you are responsible o Dangerous situation  If you create a dangerous situation then you must act  R v Miller [1982] UKHL 6  D fell asleep whilst smoking in bed. D awoke to find his mattress smouldering. He left the room and went to sleep elsewhere.  Voluntariness o i.e. your brain has sent a message to you to do something, you are not forced to do it o A willed or conscious act (Ryan v R (1967) 121 CLR 205) o Bratty v AG (Northern Ireland) [1963] AC 386 (per Lord Denning)  An involuntary act… means an act which is done by the muscles without any control of the mind such as a spasm, a reflex action, or a convulsion; or an act done by a person who is not conscious of what

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he is doing as such as an act done while suffering from concussion or whilst sleepwalking. Evidential burden: o The prosecution is entitled to presume voluntariness (Falconer (1990)). Thus, voluntariness is not automatically an issue. o Therefore burden is on the accused if they wish to raise voluntariness

Mens rea:  Subjective fault: actual state of mind of the accused.  Recklessness and intention are subjective standards in the criminal law.  Intention: o He Kaw Teh (1985) at 569 per Brennan J:  … a decision to bring about a situation so far as it is possible to do so to bring about an act of a particular kind or a particular result. Such a decision implies a desire or wish to do such an act or to bring about such a result.  Recklessness: o Recklessness is recognising the risk that something might happen, and continue to act regardless. o Looks at the state of mind of the hypothetical ‘reasonable’ or ‘ordinary person’, see, for example, manslaughter by unlawful and dangerous act (Wilson).  Negligence: o The failure to recognise an obvious risk o An objective standard o The standard of care expected is of that of the ‘reasonable person’, see, for example, negligent manslaughter (Nydam (1970))

Lecture 3- Summary Offences Less serious  Determined finally in the Local Court: s 7 of the Criminal Procedure Act 1986 (NSW)  Tried before a Magistrate, a trier of fact and law  To be proved by the prosecution, beyond reasonable doubt  Generally created by Parliament and do not exist at common law Public order offences  Not all public order offences are summary offences (eg riot, affray)  Regulation of behavior deemed as anti-social or undesirable  Criminalises behaviour acceptable in private  Public order offences often tied to moral panics  Public order offences tied closely with police powers  Police granted wide-ranging discretion in relation to public order o The law of public order in no way resembles a code of public order. It is an amalgam of particular offences which have been devised to meet particular problems at particular times. It fluctuates wildly in its emphasis and usage. Some offences disappear through statutory repeal, others fade away through what is effectively a process of desuetude, while a few rest in a state of suspended animation awaiting resuscitation at the behest of an ingenious prosecutor. - DGT Williams, 1975 Police powers- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Prohibitive Behaviour Orders- WA Approach  e.g. JPJA – who may not buy or carry any item that can be used to commit criminal damage or graffiti, including spray paint, markers, rocks, stones, broken glass, shoe polish or sandpaper  TRM – shall not video record Police employees; contact or speak with Police unless to report a genuine incident or emergency; wear; carry or be in possession of any mask or disguise in a public place (including in a vehicle); make or display signage in a public place.  JCP - Not to carry any tin snips, scissors, tyre irons, knives, crow bars, drills, drill bits, screwdrivers, or any other item likely to be used for breaking into locked boxes,

vending machines, change machines or similar devices, except in his residence or as a requirement of employment. Summary Offences Act 1988 (NSW) 4 Offensive conduct (1) A person must not conduct himself or herself in an offensive manner in or near, or within view or hearing from, a public place or a school. Maximum penalty: 6 penalty units or imprisonment for 3 months. (2) A person does not conduct himself or herself in an offensive manner as referred to in subsection (1) merely by using offensive language. (3) It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence 4A Offensive language (1) A person must not use offensive language in or near, or within hearing from, a public place or a school. (2) It is a sufficient defence …if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged… What is offensive? Offensive is defined at common law as: “such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person.” (Worcester v Smith [1951] VLR 316 at 318) Offensive language and conduct crimes are concerned with hypothetical not actual offence (Stutsel v Reid (1990) 20 NSWLR 661) Purpose: “Members of the public who use or may use public places should know that they are protected from offensive language used in the public place or within hearing distance of the public place. In the absence of such protection they might well avoid the public place.” (Jolly v R (2009) 9 DCLR (NSW) 225 at 228 per Cogswell DCJ) What is offensive? Offensive is defined at common law as: “such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person.” (Worcester v Smith [1951] VLR 316 at 318) Offensive language and conduct crimes are concerned with hypothetical not actual offence (Stutsel v Reid (1990) 20 NSWLR 661)

Purpose: “Members of the public who use or may use public places should know that they are protected from offensive language used in the public place or within hearing distance of the public place. In the absence of such protection they might well avoid the public place.” (Jolly v R (2009) 9 DCLR (NSW) 225 at 228 per Cogswell DCJ) Offensive language/conduct crimes  Offensiveness is judged from the perspective of the hypothetical reasonable person, according to contemporary community standards.  The decision maker must have regard to context.  Location element – language conduct occurs in or near, or within view/ hearing from, a public place.  Police tend to target the swear words (mainly fuck and/ or cunt). Shifting attitudes:  Police v Butler: o ‘the word fuck is extremely common place now and has lost much of its punch…one would have to live an extremely cloistered existence not to come into regular contact with the word and not to have become somewhat immune to its suggested previously legally offensive status.’  Mens Rea? o Common law presumption that all criminal offences require proof of mens rea o Debate about mens rea element for offensive language/conduct crimes:  Divergent approaches taken by NT and SA Supreme Courts: see Police v Pfeifer (1997) 68 SASR 285; Pregelj v Manison (1987) 51 NTR o See Luke McNamara and Julia Quilter, ‘Time to Define “The Cornerstone of Public Order Legislation”: The Elements of Offensive Conduct and Language under the Summary Offences Act 1988 (NSW)’ (2013) 36(2) University of New South Wales Law Journal 534. The FCC ‘Golden Globes’ Decision:  “The use of the “F-Word” here, on a nationally telecast awards ceremony, was shocking and gratuitous … If the Commission were routinely not to take action against isolated and gratuitous uses of such language on broadcasts when children were expected to be in the audience, this would likely lead to more widespread use of the offensive language…  The fact that the use of this word may have been unintentional is irrelevant; it still has the same effect of exposing children to indecent language. Our action today furthers our responsibility to safeguard the well-being of the nation’s children from the most objectionable, most offensive language.” Common theories about swearing:  swear words are inherently harmful, sexual or dirty  swearing is a sign of an “impoverished vocabulary”  people who swear are “lazy”  swearing is “common” or “not classy”  one should not swear in front of women or children

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criminal punishment prevents the use of four-letter words

Indigenous Austrlaia and offensive language crimes:  Indigenous Australians are much more likely than non-Indigenous Australians to be charged with using offensive language.  Indigenous persons are also subjected to a greater degree of intervention in their everyday activities, including the ‘most intimate parts of their lives’ (NSW Bureau of Crime Statistics and Research, 1999).  Many Indigenous Australians use swearwords differently and more frequently than non-Indigenous Australians (Taylor, 1995, p. 236). o Case example: Couchy v Del Vecchio:  The defendant was an intoxicated, homeless, disoriented Indigenous woman, Melissa Jane Couchy  A nearby female police officer then asked Couchy to state her full name and address.  Couchy replied: You fucking cunt. o Ferguson v Walkley: police officers referred to as ‘you weak dog gutted cunt’ o Couchy v Del Vecchio [2002] QCA 9  In the Court of Appeal transcript, Douglas J stated that: I just think to add the word "Aboriginal" stretches the bar too far; it's not necessary.  McPherson JA agreed, and then suggested that: You mean that if I said these words I'd be guilty of an offence, but if she says them she's not? … One law for the rich and another for the poor. o Conners v Craigie (Unreported, Supreme Court of NSW, McInerney J, 5 July 1993)  Craigie was charged under s 4(1)(b) of the Summary Offence Act 1988 (NSW).  hat section (the predecessor to s 4A) made it an offence to use offensive language in or near, or within hearing from, a public place or school.  Facts: William David Craigie, ‘an Aboriginal’, approached a group of three men, two police officers and a man named Martin Hatton.  Craigie said: ‘Fuck off all you white cunts. We've had enough of you. We'd like to see you all dead.’ ‘You’re all fucking white cunts’. ‘ You fucking white bastard, I want to see you dead. You don’t belong here’ ‘Youse are all just fucking white cunts. Get out of the area’.  Redfern Local Court, Magistrate L Horler, 24 November 1992)  … determin[ing] what a reasonable person and the community standards would be … it seems to me that in the context of a street in Redfern in 1992, having regard to the known and accepted dispossession by the original white settlers of this country of the aboriginal people and coming from a heavily affected by alcohol aboriginal person, the...