MLL214&'CRIMINAL'NOTES' ''''''! Topic 1: Introduction and Overview

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1 ! Topic 1: Introduction and Overview Introduction Criminal law has both a substantive and procedural component. o Substantive: defining and understanding the constituent elements of the various common law and statutory crimes and the defences that are available. o Procedural: the enforcement mechanism. Definition and justification of the criminal law There is no universally accepted definition of what constitutes a crime as distinguished from other types of legal wrongs. A legal wrong that can be followed by criminal proceedings and which may result in punishment. Professor Glanville Williams. The primary distinction between crimes and other legal wrongs is that the former are prosecuted through criminal as opposed to non-criminal proceedings. Conduct is injurious to the public at large and the conduct involves moral blameworthiness. Louis Waller and CR Williams. Criminalisation usually involves both: o Public conduct! i.e. the conduct is an offence against one or more individuals. o Moral wrongdoing! Public condemnation of the behaviour.! Includes he controversial crimes without victims. The purposes of criminal laws Punishment is the study of the connection between wrongdoing and state-imposed sanctions. Sentencing is the system of law through which offenders are punished. There are three good consequences that flow from punishment:! Retributivism o Deterrence! Specific: aims to discourage crime by punishing actual offenders for their transgressions, thereby convincing them that crime doesn t pay! General: aims to dissuade potential offenders from engaging in unlawful conduct by illustrating the unsavoury consequences of offending. Evidence suggests that deterrence is only effective in a limited sense. o Incapacitation: involves rendering an offender incapable of committing further offences.! Except for capital punishment, no sanction can ever fully prevent offenders re-offending.! Prison is the most effective option.

2 o Rehabilitation: aims to discourage the commission of future offences by the offender.! Distinguished from specific deterrence in the means used to encourage desistance from crime. Rehabilitation works through a process of internal attitudinal reform. Specific deterrence works through dissuading crime by making the offender afraid of again being punished.! It seeks to alter the values of the offender so that they no longer desire to commit criminal acts. Sources of criminal law The law of Australia is derived from the law of England. Two developments have occurred since the nineteenth century: o The various Parliaments in England and Australia have taken an increasingly interventionist role in the creation of law. This created an extensive body of statutory role. o In the context of criminal law, the statutory law took two forms:! The statutes were either restatements of the law in line with the basic structures of common law doctrines of criminal responsibility.! They were codifying statutes that displaced the common law of crime. In Victoria, New South Wales and South Australia the primary source of criminal law is the criminal law and, as a general rule, any legislation must be interpreted in the light of common law precepts. o Crimes Act 1958 (Vic) o Crimes Act 1900 (NSW) o Criminal Law Consolidation Act 1935 (SA) Queensland, Western Australia, Tasmania, the ACT, and the Northern Territory are referred to as Code jurisdictions. All crimes exist in statutory form as defined by the various Codes which have specifically supplemented the substantive common law crimes. Criminal law is primarily a matter for the states, however, there is also a federal criminal jurisdiction developed by the Model Criminal Code Officers Committee (MCCOC). o The MCCOC was established in 1990 by the Standing Committee of Attorneys-General to advise on criminal law issues. o The committee developed a Model Criminal Code that was intended to be adopted in every jurisdiction in Australia. o Criminal Code Act 1995 (Cth) Criminal capacity The law assumes that everyone is capable of committing crimes and being held criminally responsible for those crimes.

3 Sufficient age, voluntary conduct and rationality (sanity) (the requirements of criminal responsibility) are presumed by the law. o M Naghten (1843) o Crimes (Mental Impairment and Fitness to Be Tried) Act 1997 (Vic) s21(1) This is subject to a number of general exceptions. o Children: the common law doctrine of doli incapax stated that a person under the age of seven is incapable of committing a criminal offence. Legislation has altered this age to ten.! Children, Youth and Families Act 2005 (Vic) s 344! Where the person is between 10 and fourteen (not inclusive) doli incapax survives at common law but can be rebutted by prosecution. R v ALH (2003) 6 VR 276; [2003] VSCA 129 o Corporations: they do not have the legal status of persons and can only incur criminal responsibility under certain circumstances.! Vicarious liability: liable for acts of employees who were acting within the scope of their employment.! Direct liability: liable for acts of certain persons (CEO etc) who are considered to be the embodiment of the company. Restricted to senior employees. o R v AC Hatrick Chemicals Pty Ltd (VSC, 1990, Unreported) At common law, a corporation cannot be tried for an offence which can only be punished by imprisonment except they can be found guilty of manslaughter. o R v Denbo Pty Ltd & Nadenbousch (VSC, Unreported 14 June 1994) A person with mental impairment may lack criminal responsibility because: o They lack the requisite mens rea for an offence. o Their conduct is not voluntary. o Their conduct is excused through the operation if a criminal defence.! Hawkins v The Queen (1994) 197 CLR 500 Classification of crimes Traditionally offences were categorised as either felonies or misdemeanours. A felony is now termed an indictable offence and a misdemeanour is a summary offence. Summary offences, which are always in statutory form, are dealt with by a magistrate sitting without a jury. They can sometimes be heard in the absence of the accused. Indictable offences are only triable before a judge and jury in either the County or Supreme Courts. They cannot be heard in the absence of the accused. General principles of criminal responsibility Each crime is comprised of certain elements and each and every element must be present in order for the crime to have been committed.

4 o The elements are corpus delicti Many crimes also require the defendant to have acted with a particular state of mind. o Mens rea! Intention: the defendant acted with the intention to bring about one or more of the results forbidden by the definition of the crime. R v Hoskin (1974) 9 SASR 531 He Kaw The v The Queen (1985) 157 CLR 523 Crimes Act 1958 (Vic) s16! Knowledge: the defendant acted while holding certain facts to be true.! Belief: the defendant acted with the belief that certain facts were true, albeit with some doubts as to their existence.! Recklessness: the defendant acted with knowledge that there was a possibility that some or all of the results forbidden would result. Crimes Act 1958 (Vic) s17! Negligence. Crimes Act 1958 (Vic) s24 Nydam [1977] VR 430 All crimes require there to be a causal connection between the act or omission and the non-mens rea elements of the crime. o Actus reus! The act must be a voluntary act or an omission to act and there must be the existence of a causal nexus between that act or omission and the non-mens rea elements of the offence.! As a general rule, the criminal law more readily punishes positive conduct than omissions. There are some exceptions: Duties imposed on persons in special relationships with the victim. E.g. parents and children. o Russell (1933) The continuing act doctrine: a person who performs an act without the mens rea to make it an offence but then intentionally fails to remedy or discontinue the behaviour. o Fagan v Metropolitan Police Commissioner [1968] 3 All ER 442 Duties imposed on persons with a special relationship to the harm. o Miller [1983] There is no criminal responsibility where the conduct is: o Not voluntary! Rejoinder of automatism! Defence of duress! Defence of marital coercion (married women only) o Not rational! Insanity/mental impairment

5 ! Diminished responsibility! Infanticide! Youth Doctrine of temporal coincidence: when an offence is one of mens rea, there can be no such crime unless the mens rea and the voluntary act or omission which brings about the non-mens rea elements, concur in time. o Thabo Meli v The Queen [1954] 1 WLR 228 o Baker v The Queen [2010] VSCA 226 There are two types of criminal defences: o Primary or denial defence: one that asserts, based on the evidence adduced, that the prosecution has failed to prove one or more of the constituent elements of an offence with which an accused is charged and/or that the accused is the person who committed the alleged crime. o Secondary or affirmative defence: an accused is asserting that even if the prosecution has proven each of the constituent elements of the offence and the accused s complicity therein, they are nonetheless entitled to an acquittal because of a defence that is recognised in law and supported by evidence adduced at trial. Doctrine of transfer malice is when an accused acts with the requisite mens rea to commit an offence against a particular person or property and instead succeeds in causing the same type of harm to another person or property. o The law treats the accused in the same way as if they had carried out the crime as intended. They treat the mens rea as being transferred from the intended person or property to that which is actually harmed. o The doctrine of transferred malice only applies where the actus reus of the intended offence is identical to that of the resulting offence.! R v Newman [1948] VLR 61! R v Hunt (1825) 1 Moo CC 93; 168 ER 1198! R v Latimer (1856) LR 17 QBD 359! R v Bacash [1981] VR 923 In some limited circumstances the law will construct the relevant mens rea. o Constructive liability.! Crimes Act 1958 (Vic) s3a Inchoate crimes are those in which the mental element of the crime, although formed, is not fully expressed in the conduct of the accused. o These crimes make it possible for the law to intercede pre-emptively, rather than idly stand by until the contemplated crime reaches fruition. Strict or absolute liability offences are where the prosecution is required to prove the actus reus but there is no mens rea to prove. By way of express statutory statement or judicial interpretation they do not require proof of fault. o He Kaw The v The Queen (1985) 157 CLR 523 o The Proudman defence is one of honest and reasonable mistake of fact.! Proudman v Dayman (1941) 67 CLR 356

6 Topic 3: Murder: Mens Rea Introduction In Victoria murder is defined at common law. There are two particular doctrines of mens rea: o The doctrine of intention o The doctrine of recklessness The mens rea element of murder The mens rea for murder is not necessarily the motive. The motive may be a highly relevant fact in determining whether the requisite mens rea was present. o Hyam v DPP [1975] AC 55 Both intention and recklessness are determined subjectively. The defendant either has the requisite mens rea or not and it is immaterial whether or not a reasonable person, in similar circumstances, would have had such a state of mind. Intention to kill Where the defendant s voluntary act or omission causes death and at the time of the act or omission they intended to cause death, the defendant is prima facie liable for murder. Intention: the defendant meant to do it. o R v Willmott (No 2) [1985] 2 Qld R 413 As a general rule one has intended to do something if: o They acted with the conscience purpose or desire to bring about such a result o They acted with the knowledge that such a result was substantially certain to follow as a result of their voluntary conduct or omission. It is not satisfactory for the defendant to simply have the intent to perform the act that killed the victim. They must have the intent to kill the victim. Intent to cause grievous bodily harm This differs from intent to kill in not the intention but rather what the defendant actually intended. The prosecution must prove that at the time of the act or omission the defendant intended only to cause grievous bodily harm. Grievous bodily harm has no statutory definition but can loosely be defined as really serious harm. Further: o It does not require a weapon! R v Heaton (1899) 5 ALR (CN) 61! R v Rhodes (1984) 14 A Crim R 124 o It is not necessarily grievous just because it interferes with health or comfort! DPP v Smith [1961] AC 290 o It does not have to be life-threatening! R v Griffiths (1999) 103 A Crim R 291