Hart s View Criminal law should only act on bare minimum and it should not extend into the private realm

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1 NATURE OF CRIMINAL LAW AND CRIMINAL RESPONSIBILITY What is Crime? Two thought pools: Criminal law not linked to central morals of society Views of positivists Criminal law is linked to morals or views of community Especially regarding more serious crimes Positivism Criminal law is what we make it (whatever posited by lawmaker) No necessary moral content Crime is what law-makers say it is Depends on concerns of government E.g. bikie legislation Any behaviour proscribed by criminal law, whatever its moral content Morals View Serious crimes the criminal law is same as morality Serious crimes = serious moral wrongs e.g. murder, rape, theft Content of much of our law is same as content of much of our morality. The relationship is thus one of contingent identity between law and morality Michael Moore Criminal wrongs threaten the very reasons for the existence of the society as such Nicola Lacey issue of who is the community says that if no moral wrong, criminal law should stay out Criminalisation and the Limits of Criminal Law Devlin v Hart From the Wolfenden Committee Report 1957 Addressed issue of whether criminal law should police sexual morality Whether it should expand beyond public sector and into private Devlin s View Society is bound together by common thought and criminal law should be based upon perceived standard of behaviour and morals central to the community Law should have no limits If conduct offends central morals = should be offence Hart s View Criminal law should only act on bare minimum and it should not extend into the private realm Mill s View The Harm Principle Believes the only reason power should be exercised over any member of civilised community against heir will is to prevent harm to others Over himself, over his own body and mind, individual is sovereign Harm principle states that if conduct has possibility of putting someone at serious risk/harm, or does harm them, it could be characterised as criminal If no harm, shouldn t be placed within realm of criminalisation 1

2 NATURE OF CRIMINAL LAW AND CRIMINAL RESPONSIBILITY Authorises criminal punishment, but doesn t require it The Responsible Subject and Responsibility Only those responsible for actions deserve punishment blame Responsibility is grounded in agent s capacity to choose her actions freely Dan- Cohen No one should be punished who could not help doing what he did Hart If competent, rational people freely choose to offend, they should bear the consequences Consider crimes with no fault element (Strict Laibility) Who We Don t Blame Start with presumption of competence s 269D CLCA We don t blame the: Very young <10 s 5 Young Offenders Act Mentally insane (defence to prove this) Person must understand nature of the actions and be able to exercise control over those actions Children lack cognitive element of understanding, and thus not blamed same as adults Between 10 and 14 presumption of doli incapax Intoxicated persons to an extent Automatism see Mental Impairment Duress or Necessity (see topic) 2

3 NATURE OF CRIMINAL LAW AND CRIMINAL RESPONSIBILITY CLASSIC MODEL OF CRIMINAL RESPONSIBILITY Ideal case - benchmark of responsibility against which to test all laws Demonstrates perfectly criminal punishable act, in way that it justifies punishing the actor 4 elements The Wrong Deliberate harm to another which is seriously morally wrong To which they didn t consent There d be broad agreement about its wrongness Something law says you can t do The Actor Must be responsible for actions, so: Must be rational adult, sound mind, full capability faced with free choice Can t be intoxicated, mentally impaired, threatened, a child The Criminal Act Free-willed and voluntary action Involuntary conduct not punishable Which results in harm Remember not a crime of being but of doing Spider in car analogy still in control thus still voluntary and still punishable even if lost control The State of Mind Must have intention the mens rea Wrongful conduct and wrongful mental state occurs at same time Act or thought by itself doesn t make it criminal Strict liability and absolute liability don t require this But remember Strict liability carries reasonable and honest mistake as defence Because SL and AL usually carry lesser penalty e.g. traffic offences Cons of the Model Fails descriptively e.g. crimes can fail on one element or another so misleading Focuses on mind of actor rather than effects on victim and on public interest Benefits of Model Sets test for good criminal law Alerts us to when criminal law may be too wide ranging Perhaps behaviour better dealt with other ways e.g. public education What to Ask When Looking at New Law Who is the law targeting? E.g. rapists, murderers, thieves What is the harm involved with the conduct? What are the characteristics of the person? Responsible or insane? 3

4 SOURCES, ELEMENTS & PROOF Elements of a Criminal Offence Must have all elements for crime to be committed (except SL and AL) Use statutory interpretation, then apply law to the facts For common law, match earlier case law outcomes Three parts to an offence: Voluntariness Physical elements Fault elements (mental) Voluntariness Before D be convicted of any criminal offence, must be proved to have had at the time the ability to control the conduct Howard s Criminal Law No liability for involuntary act Always associated with physical elements Three Ways of Involuntariness Accidental Without intention, recklessness, criminal negligence Reflex action caused criminal act Ryan v The Queen Conduct performed when in state of impaired consciousness Physical Elements Acts, omissions, events that took place Separate to thoughts/intentions Three Types of Physical Elements Conduct An act or omission Circumstance Conduct may not be crime unless performed in specific circumstances E.g. rape conduct is sex but it s the circumstance (without consent) that s the crime Result Consequences of conduct rather than conduct itself E.g. murder doesn t matter what conduct was, just that death resulted Don t all need to be present, just one Fault Elements Mens rea mental elements which are responsible for physical elements Makes the behaviour criminal Four Types of Fault Elements Intention Defendant acted with subjective intention of bringing about results forbidden by definition of the crime E.g. they intend to do the crime Recklessness 1

5 SOURCES, ELEMENTS & PROOF Faultless Crimes Strict and Absolute Liability Strict Liability Prosecution doesn t need to prove intent Knowledge must still be proven Extends liability to those who didn t intend to do the wrong Defence You can argue honest and reasonable mistake But only works if it makes the conduct legal or innocent E.g. caught with meth, but thought it was cannabis having cannabis would still be illegal (even though a lesser charge) E.g. assaulting police officer but didn t know he was an officer still committing assault anyway So can still charge the more serious charge Absolute Liability Prosecution only needs to prove that the act was performed by the accused E.g. poisoning river by mistake doesn t get you off General defences still apply e.g. duress No liability for involuntary conduct Remember this liability attaches itself to individual elements of an offence, not the overall offence E.g. some offences contain SL and AL elements as well as elements that require proof of fault HKT ANALYSIS Lets us determine if we have a fault offence, SL or AL offence Do not use on established crimes e.g. manslaughter know a lot already Use it when new type of offence no common law Analysis determines whether particular element of defence has a degree of fault When to Use HKT? New legislation given in a problem don t know elements yet If you can t find an implied fault element, move to HKT for SL and AL Steps in HKT Analysis Step 1 Element Analysis Separate physical elements (and fault elements if present) Break up the offence and interpret it Step 2 First Presumption Presume the prosecution must prove fault If they don t, go to Strict Liability (next step) If they do, fault accords to the sort of physical element Conduct = intention Circumstance = knowledge 3

6 SELECTED DISHONESTY OFFENCES Parliament enacted laws to catch more offenders, so gives a wider range and reading to the offences All offences in Part 5 CLCA Don t worry about s 140 Central offence is s 134 Theft Leave dishonesty issue until last When a Person is Dishonest s 131 Basis for all offences, but leave until last Pointless to discuss until other offences satisfied Step 1 Would the act be considered dishonest according to standards of ordinary people? s 131(1) If yes, go to next step Step 2 Does the person know that their conduct is dishonest according to those standards? s 131(1) If yes, may have dishonesty, but consider further points below: Further Factors It is a question of fact of whether D s conduct is dishonest according to the standards of ordinary people to be decided by the jury s 131(2) Willingness to pay for property doesn t preclude finding of dishonesty s 131(3) Not Dishonest If: A person finds property, and Keeps or otherwise deals with it in the belief that the identity or whereabouts of the owner cannot be discovered by making reasonable steps, and Is not under a legal/equitable obligation with which the retention of the property is inconsistent s 131(4) If person honestly but mistakenly believes they have legal/equitable right to act in that way means of getting the property s 131(5) Person who asserts legal/equitable right to property that they honestly believe to exist does not, by so doing, deal dishonestly with that property s 131(6) Person knows ordinary people find it dishonest but believe law permits them to deal Theft s 134 Start with this the most serious offence Then go to satellites S 134(1) - A person is guilty of theft if the person: Deals (s 130) with property (s 130) Deal, take, obtain, receive, convert, dispose Property: real, money, intangible, electricity, captive animals Dishonestly (s 131) 1

7 SELECTED DISHONESTY OFFENCES Without the owner s consent (s 132) see below if consent given If yes to all steps, go to next step Should be able to sum this up in one sentence Intention Did the person intend to deprive owner permanently (s 134(2)(i)) or to make serious encroachment on owner s rights? (s 134(2)(ii)) Did they: Treat property as their own to dispose of regardless of owner s rights? s 134(2)(a), OR E.g. selling beer bottles back is treating as your own property Deal with property in a way that creates a substantial risk that: The owner won t ever get it back, or If the owner does get it back, its value will be substantially impaired? s 134(2)(b) Just need one of those two to happen for intention to be proved Consider factors below: Other Factors Even if person doesn t intend to permanently deprive owner (or gives the item back), encroachment still made\ Any doubt about ownership/other about the item (even 1%) equals intent to deprive owner Must be 100% sure item is yours If Consent is Given Can be implied or express (1) Or authority to consent on behalf of owner (1)(b) A person who knows that another s consent was obtained by dishonest deception is taken to act without consent Defences to Theft Honest acquisition s 134(4) Honestly believes acquired good title to property But later appears title defective because of defect in title of transferor Any later dealing by person can t amount to theft Not dishonest if person honestly but mistakenly believes they have legal/equitable right to act in that way s 131(5) Deception s 139 Remember not property anymore Did the person: Deceives (s 130) another? If yes, go to next step In doing so, did they: Dishonestly (s 131) benefit (s 130) themselves/other person, OR 2