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SUMMARY WEEK 1 - CRIME 1 2019LAW CHAPTER 1- STRUCTURE OF CRIMINAL LAW -

Criminal law involves penal sanctions to enforce prohibitions which the state imposes on the conduct (pg 3)

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High Court judgements are binding on state courts and each state is part of the Commonwealth of Australia and federal criminal law applies in each state as well as state law (pg 3)

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The contemporary common law of criminal responsibility has accepted a general principle that an offender must have been aware of what he or she was doing. It is said that the conduct must have been reckless or intentional (pg 7)

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The act must be accompanied by mens rea (common law term) meaning guilty mind

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When doing an act without authority, excuse or justification is the general threshold of criminal responsibility in the codes (pg 7)

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Criminal codes of Australian states=inadvertent negligence =appropriate measure for fault for criminal liability (pg 7)

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With one exception all criminal offences in QLD and WA must have STATUTORY origin or recognition (pg 8)

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Some offences are found in statutes other than Codes. These include many minor offences that can only be tried summarily by magistrates e.g drink driving, careless driving and a host of other minor traffic offences are in the Transport Operations (Road Use Management) Act 1995 (Qld) and the Road Traffic Act 1974 (WA). (pg9)

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In common law jurisdictions, legislation is interpreted in light of the general principles of the common law respecting criminal responsibility (pg 10)

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In code jurisdictions, courts have insisted that codification marks a break from the past and common law should not unduly influence the interpretation of statutory provisions. (pg 10)

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Language of Codes should be interpreted in accordance with ordinary meanings and without any presumption that the previous common law was intended to be maintained (pg 10)

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Simple offences= Magistrates Court (NO JURY) and have exclusive jurisdiction over summary (pg 11) offences except where statue express otherwise

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Supreme or District Courts are in indictable offences (pg 11)

CHAPTER 2- PERSUASIVE AND EVIDENTARY BURDENS -

3 fundamental principles that govern the trial of any person accused of a criminal offence: 1. PRESUMPTION OF INNOCENCE: Every person is presumed by law to be innocent of charge made against them until either they admit the charge by formally pleading guilty in court or the charge is proved. 2. BURDEN OF PROOF: This principle follows from the first, because a person is presumed to be innocent, the prosecution must prove the case against them. If it does not, the presumption of innocence remains. In a criminal trial, an accused person is under no duty to prove innocence; the persecution must prove guilty. 3. STANDARD OF PROOF: The standard of proof that the prosecution must discharge in proving every element of the charge is proof beyond reasonable doubt (pg13) In order to change their legal status from innocent to guilty the prosecution must satisfy the court beyond reasonable doubt that the person is guilty

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The issue in Woolmington v DPP [1935] AC 462 and R v Mullen (1938) 59 CLR 124 was the location of the burden of proof, not its quantum (importance)

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See Criminal Code (Clth) s.13.2

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When an issue is being decided by the ultimate finder of fact, the persuasive burden is engaged

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Beyond reasonable doubt is the standard of certainty rather than likelihood and the direction to consider whether the case has been proved beyond reasonable doubt is usually given to the jury without qualification (pg 14)

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When the persuasive burden is on the Crown, proof beyond reasonable doubt is required. When the persuasive burden is on the defence, proof on the balance of probabilities is required. Where the burden is placed on the accused to prove some matter, it usually need only to be discharged on the lower standard of a ‘balance of probabilities’ (common law principles determine this in the code states)

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. The prosecution (“the Crown”) must prove all the elements of an offence charged against an accused person, and must (with rare exceptions) disprove any matter of exculpation (discharge) which an accused person might raise (for example, self defence or accident). The Crown must prove (or as the case may be, disprove) any such matter on which it bears the burden beyond reasonable doubt.

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In those rare cases where the accused has a positive burden to prove something (for example, insanity, or provocation in murder cases), the obligation does not extend to proof beyond reasonable doubt. An accused person need only prove a matter to a lesser standard, which is called the balance of probabilities.

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Before an ultimate fact finder even gets to consider an issue (for example, whether there is sufficient evidence of an intention to kill or do grievous bodily harm in a murder case, or whether there is sufficient evidence for the jury to consider a matter of exculpation like selfdefence), a certain threshold amount of evidence must be present.

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It is for a judge to decide, as a matter of law whether this threshold evidentiary burden has been established. As well as burden of proof (aka persuasive burden) the prosecution carries the evidentiary burden to put certain the matters in issue (pg 17)

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Evidentiary burdens are not burdens to prove anything, either beyond reasonable doubt or even on balance of probabilities. It is simply a burden to show evidence warranting the attention of the jury (pg 16)

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When interpreting a statute, courts will presume that Parliament did not intend to reverse or shift the burden of proof, unless this intention was made unambiguously clear. Laws reversing the onus of proof have been justified for a few reasons. For example, it is sometimes said to be justified where it is particularly difficult for a prosecution to meet a legal burden. 31 For example, in cases concerning offences against the Migration Act 1958 (Cth) such as Williamson v Ah On (1926), Isaacs J explained that the evidentiary burden will necessarily shift depending on which party has the requisite knowledge and evidence to adduce the truth in proceedings: The burden of proof at common law rests where justice will be best served having regard to the circumstances both public and private. (pg 15)

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When evidentiary burdens are reversed, the prosecution need only discharge its persuasive burden in respect of that matter if the accused has first discharged the evidentiary burden. This means that the accused must introduce evidence with respect to the matter unless the defence can point to evidence already introduced by the prosecution.

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E.g. accused on trial for assault causing bodily harm may want to argue that it was a case of self-defence in which no more force is used that was reasonably necessary. The accused could introduce evidence that the alleged victim threw the 1st punch; however evidence to

the effect may already be before the court from the prosecutions witnesses to the assault. (pg 17) -

General principle in CL= accused carries the evidentiary burden with respect to all matters of mental impairment (intoxication) and all matters of justification or excuse (self-defence, duress/pressure) (pg 17)

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Reverse burdens are sometimes expressed in ‘presumptions’.

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Types of presumptions in criminal law: 1. Presumptions of law that reverse persuasive burdens because the rebuttal requires proof of the contrary. E.g. presumption of sanity under Codes s 26. 2. Presumptions of law that reverse evidentiary burdens because the rebuttal requires only some evidence to the contrary. E.g. CL presumption of normal mental capacity, this underlies the process of drawing inferences about an accused’s state of mind from the evidence about the accused’s acts. 3. Discretionary presumptions of fact that state inferences which a jury may draw but it is not legally obliged to e.g. ‘presumption of recent possession’ which the presumption that a person in possession of recently stolen property, in the absence of any reasonable explanation has stolen or received.

CASES MENTIONED:

Singh v R Summar yoft hi sdeci si on The offender, Chamanjot Singh, was charged with the murder of his wife, Manpreet Kaur, on 29 December 2009. He pleaded not guilty to murder but guilty to manslaughter, on the grounds of provocation. The Crown did not accept that plea and the matter proceeded to a trial with a jury. The jury acquitted the offender of murder but convicted him of manslaughter. Mr Singh claimed that his wife, Manpreet Kaur, provoked him by telling him she had never loved him, was in love with someone else and threatened to have him deported and, that as a result, he lost his self-control and killed her. Mr Singh was convicted of manslaughter based on the partial defence of provocation and sentenced to a non-parole term of imprisonment of six years. The only issue at trial was whether the Crown could prove beyond reasonable doubt that the offender did not act under provocation. Having regard to the circumstances of the death of the deceased, there can be no doubt that the offender killed his wife when he had lost self-control. The only significant issue was whether or not an ordinary person, in the position of the offender, would have formed an intention to kill in the circumstances. The jury was not satisfied that an ordinary person would not respond in the manner alleged.

Woolmington v DPP Woolmington was a 21-year-old farm labourer from Castleton, Dorset. On November 22, 1934, three months after his marriage to 17-year-old Violet Kathleen Woolmington, his wife left him and went to live with her mother. On December 10 Woolmington stole a double-barreled shotgun and cartridges from his employer, sawed off the barrel, throwing it into a brook, and then bicycled over to his mother-in-law's house where he accidentally shot and killed his wife Violet. He was arrested on January 23 the following year and charged with the willful murder of his wife. Issue Was Woolmington denied his right to the presumption of innocence? Decision

Appeal allowed, new trial ordered. Reasons The House of Lords hold that the jury instruction means that the onus is on Woolmington to prove that he did not intend to kill his wife. This seems to have obviously violated the presumption of innocence principle in criminal law. The judge got this definition from Halsbury's "Laws of England", however it came from a time before there was a criminal court of appeal, and before the accused was even allowed to testify. They state that the presumption of innocence is the "golden thread" that holds the criminal law together, and that it must be given the highest accord. In order to prove the charge, the Crown must prove both that he murdered his wife, and that he intended to do it beyond a reasonable doubt. They also say that the Court of Appeal was wrong to dismiss the appeal; the provison can only be used when you can reasonably say that a jury would have come to the same conclusion if they had been properly directed. The House of Lords does not think that this is the case here and therefore, a new trial with a proper charge to the jury is ordered. Ratio The presumption of innocence is the most important thing in criminal law and cannot be ignored. The burden of proof in criminal matters is that the prosecution must prove the Defendant's guilt beyond a reasonable doubt. Section 686(b)(iii) can only be used to keep a decision even though a wrongful direction of the jury has occurred if it can be said that the jury would have come to the same conclusion with the correct guidance

R v Mullen...