THE FUNDAMENTALS OF CRIMINAL LAW (CHAPTER 1 PAGE 3) WEEK 1 INTRODUCTION & OVERVIEW & OFFENCES OF STRICT & ABSOLUTE LIABILITY

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1 1 MLL214 Notes Criminal Law THE FUNDAMENTALS OF CRIMINAL LAW (CHAPTER 1 PAGE 3) WEEK 1 INTRODUCTION & OVERVIEW & OFFENCES OF STRICT & ABSOLUTE LIABILITY Criminal law is made up of both a substantive and procedural component. Substantive component: consists of defining and understanding the constituent elements of the various common law and statutory crimes and the defences that are available thereto. Procedural component: denotes the enforcement mechanism, or the process through which criminal defendants are brought to court and prosecuted for their alleged discretions. Reading cases - preamble Note: - The jurisdiction State/Territory? (common law or code?). Important because some defences exist only in some jurisdictions. For example, both NSW and Victoria are common law jurisdictions, but only NSW has the partial defence of diminished responsibility - The position of the court in the hierarchy of courts: trial/appellate/high Court - The ratio decidendi or reasoning (ground for deciding) of the court When do we criminalise conduct? An endless debate for current purposes, we will note that criminalisation usually involves: Public conduct: - ie the conduct is an offence against one or more individuals Moral wrongdoing: - public condemnation of the behaviour - includes the controversial crimes without victims Issue why do we not criminalise some conduct that is public and generally considered to be morally wrong eg racial vilification? Definition of a crime: - There is no universally accepted definition of what constitutes a crime as distinguished from other types of wrong such as torts, breaches of contract etc - In reality, a crime is any conduct which the courts or legislatures choose to describe as such (as each of the jurisdictions in Australia retains the power to designate which legal wrongs are to be prosecuted through the criminal medium) Defining crime. Glanville Williams: a legal wrong that can be followed by criminal proceedings and which may result in punishment Definition by Louis Waller and CR Williams: - Conduct is injurious to the public at large AND - Conduct involves moral blameworthiness

2 2 The same conduct can result in criminal and/or civil actions. Criminal: OJ Simpson was charged with the murders of his ex-wife Nicole Brown and her friend Ron Goldman. Found not guilty at trial in Civil: In 1997 OJ Simpson was sued by the families of Goldman and Brown for the wrongful deaths of the deceased. He was found liable for the wrongful death of Goldman and the battery of Brown and was ordered to pay US$33 million in damages. Crimes Procedural: Prosecuted by the State (police or Office of Public Prosecutions) May result in punishment Purposes of criminal law - Punishment and Sentencing in Victoria: o Retribution o Deterrence Specific deterrence - punishes actual offenders for their transgressions General deterrence - seeks to dissuade potential offenders from engaging in unlawful conduct by illustrating the unsavoury consequences of offending Restraint/Incapacitation (Post-custody detention orders, imprisonment/work orders/probation etc, aims to prevent reoffending- prison is most effective at this as the offender is physically unable to reoffend) Rehabilitation (Assessment& Referral List, MMC, aims to discourage re-offending in the future, seeks to alter the values of the offender, is not a real punishment as it requires consent of offender and takes into account the offender s needs. More like a welfare service than a punishment) Sources of Criminal Law Australia, upon colonisation by the British, inherited English common law. However, subsequently two different pathways adopted in the various jurisdictions: 1. Code jurisdictions adopted comprehensive criminal codes (covering all crimes). Interpreted with minimal reference to the common law: Qld, WA, Tasmania (Griffith Code); Commonwealth and NT 2. Common law jurisdictions Victoria, NSW, SA. Criminal law developed from the common law and is interpreted with reference to the common law, BUT now there is increasing statutory reform (eg rape). Any legislation must be interpreted in the light of common law precepts unless Parliament has expressly, or by necessary implication, evinced a clear intention to displace the common law. Therefore, in resolving any statutory ambiguities, courts are obliged to apply common law principles in the absence of a clear legislative intention to do otherwise. Main criminal legislation in Victoria: Crimes Act 1958 (Vic). Commonwealth legislation: Criminal Code Act 1995 (Vic) applies to all Commonwealth offences from 15 December, 2001 (few people are prosecuted at the federal level for the range of offences considered in this topic, thus we do not look closely at this code). The Australian Constitution and Criminal Law Most criminal law in Australia is passed by the various States and Territories eg Crimes Act 1958 (Vic) The power of the Commonwealth government to enact criminal law is limited by the Australian Constitution, which does not include an express power for the Commonwealth to legislate in the field of criminal law. Consequently, for federal criminal laws to be constitutionally valid they must be created as incidental to an existing head of power. The two most important powers relied on by the federal government in relation to the enacting of criminal law are: Key Commonwealth legislation in relation to criminal law includes the Crimes Act 1914 and the Criminal Code Act 1995.

3 3 Although the power of the Commonwealth to legislate in relation to crime is limited, the reach of the Commonwealth is increasing. In 2005 the Australian Law Reform Commission estimated that federal crimes accounted for about 10% of all criminal activity in Australia. Note that it is possible for the States and Territories to refer ( hand over) their constitutional power to the Commonwealth on a particular issue. This has occurred on a few occasions when the States have considered that a national law is preferable to a set of State laws. E.g.: anti-terrorism legislation (2002). Important initiative: MCCOC o The Model Criminal Code Officers Committee 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 (voluntary) this has not occurred o The recommendations of the MCCOC form the basis of the Criminal Code Act 1995 (Cth). Charter of Human Rights and Responsibilities 2006 (Vic) Came into effect in Victoria on 1 January Makes it unlawful for a public authority to act in a way that is incompatible with the human rights listed in the Charter, or in making a decision, to fail to give proper consideration to a relevant human right (section 38 (1)). Relevant rights under the Charter re criminal law and procedure include: s21: right to liberty & security of person; s24: right to a fair hearing; s25: rights in criminal proceedings; s26: right not to be tried and punished more than once Victoria interaction of common law & statute Murder - Crimes Act 1958 s3 establishes the punishment for murder. But - definition of offence? > Common law - Felony murder now governed by s3a Crimes Act 1958 Rape - Originally a common law offence. Now extensively defined in Crimes Act 1958 (provisions re consent, rape of males, definition of act of rape (penetration)) etc. Criminal Responsibility Who should be criminally liable for their acts? Changing historical views: In medieval European law, responsibility was sometimes attributed to animals. If a domestic animal (pig, dog, cow, horse) killed a human being it could be tried in a secular tribunal, with capital punishment the usual result (Evans, 1906). England: historical trend from 13th century through to contemporary period moving away from exclusive focus on behaviour to more detailed analysis of mental state of D at the time of the alleged offence. Contemporary focus: what mental states required as fault element of crime? What disorders/conditions will excuse people from criminal responsibility? Criminal Capacity o Who or what has the capacity to incur criminal liability? Assumption is that everyone is capable of committing crimes and being held criminally responsible for those crimes (with a number of general exceptions eg children (under 18) and corporations in certain circumstances)

4 4 General Principles of Criminal Responsibility 1. No liability for conduct that is not voluntary 2. No liability for conduct where person lacks capacity Minors? Mentally ill? (presumption of sanity) Presumption that persons are sane: previously common law, now Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s21(1). 3. Person must engage in conduct that is prohibited by the criminal law, and must possess a state of mind prohibited by the criminal law (mens rea). State of mind must have existed at the time of the acts or omissions giving rise to the prohibited conduct (the requirement of temporal coincidence ). These three principles are embodied in the common law maxis: actus non facit reum mens sit rea. This has been judicially interpreted as meaning that the act itself does not constitute guilt unless done with a guilty mind. Elements of an offence Each crime is comprised of certain elements, and each and every element must be present in order for the crime to have been committed. Eg. burglary at common law is defined as: (a) breaking; (b) entering; (c) of a dwelling; (d) at night-time; (e) with intent to commit a felony therein. Unless all five of these requisites are present, there is no crime of burglary. The elements of any particular crime are sometimes referred to as the corpus delecti meaning the body of the crime In order to convict, the Crown must prove each and every element which comprised the offence, and the defendant s complicity therein, beyond a reasonable doubt 1. Voluntariness Goes to the actus reus ( bad act ) Traditional approach is that conduct is not voluntary if it is not the product of the person s will Ryan v The Queen (1967) 121 CLR 205, 213Barwick CJ: That a crime cannot be committed except by an act or omission is axiomatic. It is basic, in my opinion, that the act of an accused must be a willed, a voluntary act which has caused the death charged. It is the act which must be willed, though its consequences may not be intended. Usual examples of involuntary conduct: - Reflex action - Sleepwalking (aka somnambulism) Controversial development: - psychological blow (shock) leading to involuntary conduct Somnambulism 1: R v Tolson (1889) Can anyone doubt that a man who, though he might be perfectly sane, committed what would otherwise be a crime in a state of somnambulism, would be entitled to be acquitted? And why is this? Simply because he would not know what he was doing. Stephen J. Also: R v Cogdon (1950) Unreported Voluntariness and intoxication? X is a rugby player. After a successful game in which his team trounced the opposition, the players went back to the club rooms to celebrate. Much drinking of alcohol took place. After a few hours some of the players, including X, decided to move on to a nightclub. X continued drinking. After 8 hours of celebrations and while he was grossly intoxicated, X left the nightclub. Upon leaving a young woman accidentally bumped into X; he punched her in the face, causing considerable swelling and bruising. X is charged with assault.

5 5 Can X argue that he is not criminally responsible because his act was not voluntary? Ie it was not a conscious, willed act? No, as evidence of self-induced intoxication cannot be considered in determining whether conduct is voluntary see Model Criminal Code below. Voluntariness: s4.2 Model Criminal Code (1) Conduct can only be a physical element if it is voluntary. (2) Conduct is only voluntary if it is a product of the will of the person whose conduct it is. (3) The following are examples of conduct that is not voluntary: (a) a spasm, convulsion or other unwilled bodily movement; (b) an act performed during sleep or unconsciousness; (c) an act performed during impaired consciousness depriving the person of the will to act. (4) An omission to perform an act is only voluntary if the act omitted is one which the person is capable of performing (6) Evidence of self-induced intoxication cannot be considered in determining whether conduct is voluntary. (7) Intoxication is self-induced unless it came about: (a) involuntarily; or (b) as a result of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force. Problem D knows that he is likely to sleepwalk after he has consumed alcohol. After a night of heavy drinking, he sleepwalks. While sleepwalking he goes into another bedroom in the share-house where he lives and sexually assaults the young woman who is sleeping there. Sleepwalking brought about by the voluntary consumption of alcohol can D claim that his behaviour was not voluntary? Yes, as the act was performed during sleep (which falls under the category of involuntary action) and evidence of self-intoxication cannot be considered in determining whether the conduct is voluntary. How would a case like this be treated under the Model Criminal Code? The act would be deemed involuntary as it was done during sleep. 2. Lack of capacity Minors o The age of criminal responsibility in Victoria is 10 years. A person under 10 cannot be charged by police with committing an offence: s344 Children Youth and Families Act 2005 (Vic). Mentally ill / insane persons Sanity is presumed by the law: o common law: M Naghten (1843) o now statute: Crimes (Mental Impairment and Fitness to Be Tried ) Act 1997(Vic) s21(1) o Defence of mental impairment (previously insanity) allows mentally ill offenders who satisfy the legal test for mental impairment to be found not guilty by reason of mental illness (a distinctive verdict that allows the person to be detained): s17 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) Age and criminal responsibility Children under a specified age (varies across history and jurisdictions) deemed: To lack capacity to understand the consequences of their acts and To have not fully developed an appreciation of the difference between right and wrong Therefore not criminally responsible for their acts Common law: Irrebuttable presumption that child aged 7 or younger cannot be guilty of a crime