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LAWS2004 Criminal Law and Procedure

Week 1 7/3/14
What is crime and criminal law?
Criminology examines the social aspects and causes of crime. Criminal law is
concerned about the legal implications of crime. Crime is contingent on a
variety of societal power relations/structures. An act is not legally a crime
Crime: activity that the state prohibits by law and punishes (Oxford Australian
Law Dictionary). Formal legal definition that distinguishes crime from tort.
Crimes are public wrongs largely dealt with in a public sphere. Actus reus and
mens rea are common law terms used to define crimes.
There is no satisfactorily universal definition of criminal law and what is
criminal. Other approaches to defining crime include:
o Historical: social and political developments;
o Harm and morality: public/private, harm (not a wholly defining feature
of crime), offensiveness;
o Social reaction: Durkheims collective conscience;
o Varies according to social and historical context media portrayal
White and Haines reading

Ashworths Principled Core of Criminal Law
Impossible to judge criminal law by its content, but rather by the fortunes of
successive governments and mass media.
Four core principles:
o Criminal law should only be used to censure persons for substantial
o Criminal law should be enforced with respect for equal treatment and
o Persons accused of substantial wrongdoing ought to be afforded the
protections appropriate to those charged with criminal offences.
o Maximum sentences and effective sentence levels should be
proportionate to the seriousness of the wrongdoing.
o Emphasis on requirement for a fault element and proper procedural

Sources of Australian and New South Wales Criminal Law
English law, including the common law, formed the basis of criminal law
when NSW, Australia first settled.
Criminal laws generally the responsibility of the states. If the Federal
government wants to legislate criminal law, states must cede their power.
Two main sources: common law and statutes.
Common law states: NSW, Victoria, SA majority of offences now defined
and regulated by statues, but still presupposes continued existence of common
Code states: QLD, WA, Tasmansia, NT + Criminal Code (Cth) [ACT hybrid]
criminal law comprehensively covered by statute (Code).

Parties to a criminal case
Prosecution or Informant or Complainant. Referred to as the Crown in DC and
Defence: accused person used across all jurisdictions. Once found guilty
called the offender.
Appeal: Appellant or Applicant and Respondent

Criminal Laws Two Branches
Substantive: legal rules and principles which identify behaviour as criminal.
Largely concerned with definitions of crimes and what are the elements of a
particular criminal offence. E.g. definition of assault.
Procedural: rules of law that determine the structure and function of, and
regulate the operation of, the system of criminal justice. E.g. powers of
police, sentencing and administration of punishment.

The burden and standard of proof in criminal cases
General rule in criminal law is that the accused cannot be convinced of the
offence charged unless the prosecution has proved the commission of the
offence as charged beyond reasonable doubt.
Prosecution carries burden of proof and standard is beyond reasonable doubt
he who accuses proves.
Some exceptions to rule: common law defence of mental illness, statute: s29
Drug Misuses and Trafficking Act 1985. Standard is on the balance of

The criminal court structure in NSW
High Court -> Court of Criminal Appeal (NSW) -> Supreme Court of NSW ->
District Court of NSW -> Local Court, Childrens Court, Coroners Court

Week 2 14/3/14
Types of criminal offences
Most important classification in NSW is distinction between summary and
indictable offences. Relates to the mode of trial.
Summary offences: tried in courts of summary jurisdiction, magistrate is trier
of both fact and law. All public order offences are dealt with in the LC.
Indictable offences: tried in intermediate and superior courts by judge and jury
after committal. Judge decides issues of law. Jury decides facts. May be tried
by judge alone. Minor/Serious s. 4. Accused generally has the decision to opt
for jury prosecutor doesnt have to agree.
Committal is a preliminary hearing that decides whether the matter goes
before a judge and/or jury.
There are a large amount of indictable offences triable summarily in order to
be cost effective and fast-tracked. Mode of trial turns on gravity of and
particular circumstances of the case (Criminal Procedure Act 1986 ss 258-
273). Indictable offences fall into 3 groups:
o Indictable offences not triable summarily (strictly indictable)
o Table 1 indictable offences under Chapter 5 [s 260(1)] to be dealt
with summarily unless either the prosecuting authority or accused
elects otherwise.
o Table 2 indictable offences under Chapter 5 [2 260(2)] to be dealt
with summarily unless prosecuting authority elects otherwise.
There are strategic aspects that the accused has to think about in regards to
The criminal court structure in NSW
Childrens Court: specialist court dealing only up to 18. Can deal with more
criminal offences than other courts, as it is someone under 18. Cannot deal
with serious indictable offences, which must go to the SC. Presided over by
childrens magistrates. May have the same magistrate as smaller LC.
Sentencing orders are strict/limited.
Coroners Court: deals with suspicious deaths. Can order inquests into deaths
and suspicious fires. Do not have powers of penalty; can only make
recommendations on what can be done. Can refer matters to AG who will
refer to DPP. Coroners act as administrative inquirer.
District Court: trial jurisdiction. Majority of serious indictable offences tried in
NSW. Appellate jurisdiction. Downing Centre is main DC in NSW criminal
Supreme Court: generally travel in circuits, as opposed to sitting in one court.
Jurisdiction restricted to murder. Deal with complex cases or large drug trials.
Concurrent jurisdiction with DC. Manslaughter and drug importation.
Court of Criminal Appeal: Appeal division. Generally 3 judges in appeal, 2 in
sentencing appeal, 5 judges in matters of points of law or difference of
High Court: only hear about 20-30 criminal cases a year. Applications for
special leave come before 2/3 judges. 5 judges must sit if matter gets through
appeal level. All 7 judges may sit if a point of law is proposed.

Prosecution and defence
Adversarial: parties present competing claims to impartial third party with
power to impose authoritative determination.
Role of the police: essentially exist to investigate crimes. Some broader
functions to consider. Gatekeepers.
o Police Prosecutors LC
o Solicitors from DPP all indictable matters in LC + matters in DC and
o Crown prosecutors barristers in trials in DC and SC
o Private solicitors or counsel briefed by DPP
Ethical duties: present case properly and fairly call all material witnesses
o Unrepresented
o Legal representation:
Legal Aid
Private solicitor
Barrister (counsel)
No absolute right to legal representation in Australia (Dietrich)
Other options: pro bono; amicus curiae; McKenzie friend

Propositions established in Dietrich
Australian law does not recognise a right to the provision of counsel at public
However, an accused has the right to a fair trial (not to be tried unfairly)
The courts have power to stay a criminal proceeding which will result in trial
which is unfair
Each case needs to be examined in the light of its own particular
Ordinarily where an indigent accused charged with a serious offence is,
through no fault of his own, unable to obtain legal representation then, judge
should adjourn or stay the trial

Legal Aid criminal law policies
Legal Aid available in LC criminal matters where offences commenced by
CAN and either offences carries imprisonment as a viable penalty or
exceptional circumstances exist.
ADVO applicant (domestic relationships) unless frivolous or application
made by a police officer, defendants only where also applicant in associated
ADVO proceedings or exceptional circumstances exist.
Only available for motor traffic offences where there is areal possibility of
term of imprisonment being imposed or exceptional circumstances.
Drug Court matters no means or merit test availability of funds tests.
Indictable matters in D/SC sentence matters, trials, bail applications
Appeal to DC, CCA, and HC subject to Means Test, Merit Test A, and the
appropriateness of spending public funds.
The jury in NSW
Juries empanelled in D/SC for trials of indictable offences
Persons excluded or entitled to claim exemption from jury s 5 Jury Act
12 jurors in any criminal proceedings (or up to 3 additional jurors by court
order) s 19.
Right to challenge jurors Part 6 peremptory and challenge for cause
Empanelling jury Part 7 random ballot and identification numbers
Jurors sworn and charged to return verdict according to evidence
Majority verdicts s 55F
Failure to agree discharge s 56

Week 3 21/3/14
Introduction to Criminal Responsibility
There are important general principles:
o A person cannot be convicted of crime unless that person:
Engages in conduct that is prohibited by the criminal law, and;
does so with a guilty state of mind actus no facit reum, nisi
mens sit rea
o Actus reus: conduct basis of the criminal offence, external element,
conduct element.
o Mens rea: guilty mind, fault element, mental element.
o Criminal liability arises where both elements coincide.

Legal personhood
Presumption that all adults have mental capacity.
Criminal responsibility for a child begins at 10 (s 5 Children (Criminal
Proceedings) Act 1987.
Children 10-14 years presumed incapable doli incapax.
Presumption can be displaced must know act is seriously wrong BP v R;
SW v R [2006] NSWCCA 172
Corporate criminal liability:
o Vicarious acts and intentions of employees attributed to employer
when carried out in course of employment;
o Directing mind and will of corporation certain persons when acting
in the companys business are the embodiment of the company so
their acts are deemed to be acts of the corporation.

The conduct element actus reus
Physical elements or external events of crime
Defined into 3 types of observable behaviour:
o The conduct acts, omissions, or status
o The circumstances in which conduct specified to take place
o The consequences or results caused by the conduct causation
Comprehending conduct is the basic element of actus reus. There are different
types of conduct can be made a crime:
o Act: doing of a thing, which attracts the operation of the law. Relevant
act must be voluntary;
o Omission: refraining from doing a thing which required by operation
of law;
o Status: individual found in a particular state of being = criminal
Voluntariness of the actus reus
Whatever the mens rea elements of an offences are, it is always necessary to
establish that an accused acted voluntarily. Definitions of voluntariness
o conduct must be conscious decision, that is
o some connection between conscious mind and bodily movement
o resulting in exercise of the will to act
o The authorities establish and it is consonant with principle, that an
accused is not guilty of a crime if the deed which would constitute it
was not done in the exercise of his will to act Ryan v R
o Evidential onus on accused when arguing acts involuntary. Once
discharged the persuasive burden on prosecuting to prove beyond
reasonable doubt that act voluntary.

The mental elements mens rea
General rule is every crime requires mens rea generic term for a number of
different mental states including intent, recklessness, etc
May be different mens rea requirements for differnet parts of actus reus. Ask
what mens rea required for conduct, circumstances, and consequences of
Starting pint for identifying fault element is a presumption that the mens rea
for criminal offences is subjective He Kaw Teh

Subjective mental elements
Intent is the standard subjective form of mens rea conduct and consequence
elements in the actus reus.
An individual is defined as intending to act if they mean to engage in the act.
If a consequence is an element, intent involves proving it was the individuals
purpose in engaging in certain conduct that the consequence would result.
Not necessary or sufficient to show there was a motive, e.g. while you may
kill in compassion, you still intended to kill.
Recklessness is where an accused can foresee some probable or possible
harmful consequence or a circumstance existing, but nevertheless decides to
continue with those actions with an indifference to the consequences or even
hoping they do not eventuate.

Form of objective mens rea that can apply to any aspect of the actus reus.
Inquiry is not focussed on the accuseds mind but rather on what would have
been in the reasonable or ordinary persons mind at the relevant time.
Accuseds conduct compared against this standard of reasonableness.
To attract criminal liability departure from standard has to be sufficiently
great to warrant punishment.
Generally speaking, the more serious the offence, the greater the departure
from the standard must be before an accused will be considered to have acted
with criminal negligence Nydam v R [1977] VR 430.

Strict and absolute liability
Offences of strict liability comprise a limited form of objective mens rea
applicable only to the circumstance component of the actus reus.
In statutory offences of strict liability, only basis accused may avoid
conviction is to raise the excused of reasonable mistake of fact.
Evidential burden on accused Proudman v Dayman.
Once burden discharged then prosecution must prove burden no honest belief
or not based on reasonable grounds.
Absolutely liability no mens rea component at all in offence.
Courts are reluctant to interpret statutory offences as crimes of absolute
liability unless legislative intention is unequivocal.
Case references: selling or supplying liquor to person under 18 years (Hickling
v Laneyrie).
Fail to submit to breath analysis Walker (1994) 77 A Crim R 236