CHAPTER 2 PRESUMPTION OF INNOCENCE When most people think about the law, the first thing that comes to mind will often be criminal law. We watch crime dramas and read murder mysteries. Our newspapers are rife with stories of murder, assault, rape and theft. Yet no matter what crimes you are accused of, the presumption of innocence sits at the heart of our criminal justice system. It guarantees that an accused is considered innocent until the charge against them has been proven beyond reasonable doubt. After reading this chapter and completing the activities, you should be able to demonstrate your knowledge of the purposes of criminal law, the presumption of innocence, key concepts of criminal law, the distinction between summary offences and indictable offences, and the different types of crime that can be committed. We will investigate the specifics of the law about crimes against the person, such as murder, and crimes against property, such as robbery and theft, including the elements of each offence and possible defences to these crimes.
Burden of proof Standard of proof Crimes against the person Crimes against property Purposes of criminal law Actus reus Criminal law Principles of criminal liability Elements of a crime Key terms Mens rea accessory A person who did not commit the crime themselves, but impedes the apprehension or prosecution of a principal offender actus reus The Latin term for guilty act, which refers to the action someone has taken to commit a crime burden of proof The party who has the responsibility, or onus, of proving the case criminal law Laws concerned not only with the rights of individuals directly involved but also with the welfare of society as a whole homicide The unlawful killing of another person indictable offence A more serious criminal offence, for example, murder, usually heard before a judge and jury in the County Court or Supreme Court Presumption of innocence Types of crime Principal offender Age of criminal responsibility indictable offence heard summarily An indictable offence triable before a magistrate without a jury mens rea The Latin term for guilty mind, which refers to the intention to commit a crime presumption of innocence A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law principal offender The person who committed the actus reus of a crime, or assists in the commission of a crime property Divided into two categories: real property, which is the ownership of land, and personal property, which is the ownership of tangible things Participants in a crime Summary and indictable offences Accessory to crime Strict liability offences sanction Penalty handed down by a court for a breach of law, for example, a fine or imprisonment (sometimes interchanged with sentence) standard of proof The level of proof that must be satisfied in order to determine guilt or liability strict liability offence An offence for which the prosecution only has to prove that the accused carried out a criminal act, and does not have to prove they intended to commit that act summary offence A less serious crime, heard in the Magistrates Court, for example, a minor traffic offence
32 Cambridge Making and Breaking the Law The primary purposes of criminal law are to establish a code of conduct, resolve disputes and recognise individual s rights. Crimes are acts that are harmful, immoral, punishable and against the law. 2.1 Purposes of criminal law One of the ways we ensure our society continues to operate in a safe and orderly way is by creating laws that make it clear which behaviours are not acceptable. The body of law that establishes which behaviours are unacceptable is called criminal law, and acts that are in breach of these laws are commonly known as crimes. Some of the primary purposes of criminal law are to: establish a code of conduct to regulate our behaviour create a system to resolve disputes when people are harmed recognise the rights of people within our society. Criminal law keeps society safe by providing punishments for behaviours that are harmful to individuals or to our society. Without criminal law there would be no punishment for wrongdoings and society would be in chaos. What is a crime? A crime can be described as: an offence punishable by the State on behalf of the general public whose standards do not permit the offending behaviour Source: Blackstone s Australian Legal Words and Phrases Simplified, Blackstone Press, 1993 Based on this definition, we can explore four major features of crimes. Crimes are acts that are: against the law punishable against morality harmful. Against the law A crime is an offence, which means it is an act that is against a law. In other words, in order for an act to be a crime there has to be an existing law that makes that behaviour illegal. For example, it is a crime to commit robbery in Victoria because section 75(1) of the Crimes Act 1958 (Vic) states that a person is guilty of robbery if they use or threaten to use force to steal something. Punishable A crime is an act that is punishable. Crimes are punished by the State, which means if you have committed a crime you can be punished through the court system. This could involve a sanction such as a fine or imprisonment. This is different to breaking a non-legal rule; non-legal rules are also punishable, but not through the court system. For example, robbery is punishable by up to 15 years imprisonment. In comparison, if you break a rule in a game of soccer (such as by committing a foul) you could still be punished but not by the courts. You might get a red card, but would not receive a jail term. Against morality A crime is an act that is against morality, or in other words is against the standards of society. Morality is the system of values a society promotes based on common beliefs about what is right or wrong. Most, if not all, modern societies value the preservation of human life. This is reflected in criminal laws that prohibit crimes such as murder and assault. Conflict can occur when societies are divided on issues of morality. Issues such as abortion, prostitution, and drug use provide examples where there has been significant public debate over whether these acts should be considered crimes. Answering questions of morality is not always easy, and the answers may be different for different societies. In Australia, for example, polygamous marriage (marriage to more than one person at the same time) is punishable by up to 5 years imprisonment whereas
Chapter 2 presumption of innocence 33 in Saudi Arabia polygamous marriage is an established and legal practice. Similarly, the values of a society can change over time. Until 1980, Victorian men could be sentenced to a maximum of 15 years in prison for committing offences related to homosexuality. These laws have since been abolished because, as society s values change, so do our ideas about what behaviours should be considered criminal. Harmful The last major feature of a crime is that it is an act that causes harm. The most obvious way an act can cause harm is through physical injury. Offences such as murder and assault are crimes because they cause individuals to suffer physical harm. Crimes can also cause economic harm. Theft and robbery cause individuals to lose money or property, and suffer economic loss. Finally, a crime can cause harm to society itself. For example, pollution is a crime under Victoria s Environmental Protection Act 1970 (Vic). NEWSREPORT 2.1 Historic homosexuality convictions overturned Society s attitudes towards same-sex relationships has changed dramatically over time, and this transformation in values has, in turn, influenced Australian law. Until 1980, Victorian men could be sentenced to a maximum of 15 years imprisonment for offences such as buggery, indecent assault on a male, and soliciting for homosexual purposes. It is thought that hundreds of these offences were reported each year. Yet in 2016, the Victorian government issued a formal apology to those who had been convicted of these offences. Describing these laws as unjust and nothing less than state-sanctioned homophobia, the Victorian Premier argued that Parliament needed to be held formally accountable for the creation of these laws. The apology comes on the heels of changes made in 2015 to the Sentencing Act 1991 (Vic), which provided for people convicted of these offences to have them struck from their criminal records. The issue of same-sex relationships shows that legal change closely mirrors changes in societal values and attitudes. As society s values have become more accepting of same-sex relationships, so too have our laws.
34 Cambridge Making and Breaking the Law Activity 2.1 Class discussion Crime, morality, and punishment Consider the following situations and classify them as harmful, immoral or deserving of punishment. You may decide to place some situations into multiple categories. Discuss your answers with other members of the class. Situations You see someone drop their wallet and you pick it up and keep it You see someone shoplifting and do not report it to anyone You receive extra change from the cashier, and do not give it back You eat some of the nuts in the shopping centre self-serve and do not pay for it You eat some of the nuts in the shopping centre self-serve, but then you pay for the rest on your way out You do not wait for the light at the school crossing You cross the road twenty metres from the school crossing You don t wear a seat belt You assist a terminally ill person s request to help end their life You drink alcohol at a party while under the age of 18 You post a cruel message on social media about somebody You cheat in a game of Monopoly with your family You cheat on a test at school You pretend you don t have any money to give to a homeless person Categories Is this situation harmful, immoral or deserving punishment? Do you think it is a crime? Activity 2.2 Folio exercise Changing the law Read the News report 2.1 and answer the following questions. 1 Brainstorm a list of ways that societal values and attitudes have changed over recent decades. 2 Choose an area of law that has been changed by parliament or a law that people have proposed should change. Use the internet to find out more about this change or proposed change. Prepare a written report answering the following questions. a Using an example, explain the reasons why change in the law may be needed. b What actions have people taken to show demand for change? c How has parliament responded to the demands for change?
Chapter 2 presumption of innocence 35 2.2 Presumption of innocence The presumption of innocence refers to the legal principle that a person accused of committing a crime is presumed innocent until proven guilty. The presumption of innocence is one of the fundamental principles of criminal law. Some of the major rationales behind the presumption of innocence include: the belief that it is better to let a guilty person walk free than to convict an innocent person the large imbalance between the resources available to a defendant and the comparatively larger amount of resources available to the State the recognition and respect for the importance of preserving individual liberty, dignity and autonomy. While the Australian Constitution does not directly mention the presumption of innocence, the court in Carr v Western Australia (2007) recognised that the presumption was an essential part of receiving a fair trial, and the presumption has been inherited from the common law of England. Burden of proof In criminal trials, the prosecution bears the burden of proof, which is sometimes also called the onus of proof. This means that the prosecution must prove that the defendant is guilty. The defendant does not have to prove or disprove anything. In Sorby v The Commonwealth (1983) 152 CLR 281, Chief Justice Gibbs described the burden of proof as a cardinal principle of our system of justice and it is one of the primary ways our legal system ensures that the presumption of innocence is protected. The burden of proof can be reversed by parliament, which means there are some circumstances in which the defendant will have the burden of proving or disproving certain facts. The circumstances in which parliament will choose to reverse the burden of proof for an offence tend to be quite limited. Further, when interpreting a law, courts will presume that parliament did not intend to reverse the burden of proof unless the law makes it very clear that was the intention. The most common area in which state and Commonwealth parliaments have legislated to reverse the burden of proof is in drug offences. Standard of proof The standard of proof refers to the principle that the prosecution must prove the defendant guilty beyond reasonable doubt. At a basic level, to be satisfied beyond reasonable doubt means to be certain. Our society has decided that individual liberty and the costs of wrongly convicting a person are important enough that we should set a high standard of proof, which is difficult to prove. It is, however, difficult to precisely define what beyond reasonable doubt means. In Green v R (1971) 126 CLR 28, the court described the meaning of the phrase as: A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. In a jury trial, judges are not allowed to explain to jurors the meaning of the phrase beyond reasonable doubt. Instead, the jury must interpret it according to common sense just like judges do. A person accused of a crime is presumed innocent until proven guilty. The burden of proof is on the prosecution to prove that the accused person is guilty. The standard of proof in a criminal trial is beyond reasonable doubt. This refers to how certain a judge or jury must be before convicting an accused.
36 Cambridge Making and Breaking the Law Legal brief 2.1 Momcilovic v The Queen (2011) 245 CLR 1 The most common area in which state and Commonwealth parliaments have legislated to reverse the burden of proof is in drug offences. The Criminal Code Act 1995 (Cth) contains a number of provisions that have the effect of reversing the burden of proof. For example, when a defendant is found to possess more than a threshold quantity of drugs it is presumed that person intended to traffic those drugs. The defendant must then prove that they did not have the intention to traffic (sell) those drugs, which places the burden of proof on the defendant. This can have serious ramifications for a defendant, since trafficking offences carry higher penalties than possession for personal use. The issue in Momcilovic v The Queen arose from a drug trafficking charge originally heard in the County Court of Victoria. Ms Vera Momcilovic was convicted of trafficking methamphetamine under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). Ms Momcilovic gave evidence that she had no knowledge of the drugs found in her apartment, and her partner admitted that the drugs were in fact his. Despite this, Ms Momcilovic was convicted because section 5 of the Act provided that a substance found on the premises of a person is deemed to be in their possession, unless they are able to prove otherwise. In other words, section 5 of the Act reversed the burden of proof so that the defendant had to disprove possession. View the website of the Australian Law Reform Commission and follow the links to Publications, and then Traditional rights to view the report: Traditional Rights and Freedoms Encroachments by Commonwealth Laws (ALRC Report 129). Ms Momcilovic appealed, arguing that section 5 of the Act was incompatible with her right to be presumed innocent under the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic). The High Court decision confirmed that parliament can choose to reverse the burden of proof, but ultimately upheld Ms Momcilovic s appeal and ordered a retrial on the basis that the County Court had misinterpreted some parts of the Act. Activity 2.3 Structured questions Apply your understanding 1 What is the presumption of innocence? 2 What is the difference between standard of proof and burden of proof? 3 Write down what beyond reasonable doubt means to you. Discuss with your classmates the answers that they wrote down. Now answer the following questions. a Were your answers similar or different? b Explain whether you agree with leaving the definition of beyond reasonable doubt to the jury s common sense. Activity 2.4 Report Justifying a reversed burden of proof Research the Australian Law Reform Commission report Traditional Rights and Freedoms Encroachments by Commonwealth Laws (ALRC Report 129) (see weblink for details) and write a report on some of the reasons that are used to justify a reversal of the burden of proof.
Chapter 2 presumption of innocence 37 Activity 2.5 Class debate Presumption of innocence Run a class debate on one of following topics: Protecting the presumption of innocence is less important than protecting our community People found associating with terrorist organisations should have to prove they did not intend to commit terrorist attacks Choose three speakers for and three speakers against the topic. Allow class time to research the topic. Allocate three adjudicators and use the following criteria to judge the winner of the debate. Criteria Content Presentation Clarity of ideas Strength of arguments Structure Voice Body language Timing Speakers for Speakers against 1 2 3 1 2 3 2.3 Key concepts of criminal law It is important to understand the key concepts of criminal law: elements of a crime: actus reus and mens rea strict liability offences age of criminal responsibility. Elements of a crime Principles of criminal liability Age of criminal responsibility Strict liability offences Actus reus Mens rea Accessory Principal to crime offender Figure 2.1 Key concepts of criminal law
38 Cambridge Making and Breaking the Law Actus reus and mens rea refer to the guilty act and the guilty mind. Both elements need to be proven for an accused to be convicted of an offence. Elements of a crime There are two elements that must be proven before someone can be convicted of a crime: actus reus, which is the latin term for guilty act mens rea, which is the latin term for guilty mind. These elements come from the latin phrase actus non facit reum nisi mens sit rea, which translates to an act does not make a person guilty unless their mind is also guilty. In other words, for someone to be guilty of a crime they must have: 1 committed an act that is a crime (actus reus the guilty act) 2 intended to commit that act (mens rea the guilty mind). If both elements can be proven, then that person is guilty of a crime. The logic behind being required to prove both actus reus and mens rea is that society usually wants to avoid punishing people for things they did not intend to do. Indeed, the requirement of mens rea is often considered to be one of the most fundamental protections in our criminal justice system. Activity 2.6 Class discussion The sin of omission: can inaction be a crime? Consider the scenario below: There is a runaway train heading down the railway tracks. On the tracks ahead there are five workers, who cannot see or hear the train approaching. The train is headed directly towards them. You are standing in the train depot nearby, next to a lever. If you pull this lever, the train will switch to a different track and avoid the five people. There is a person currently working on the other track. If you pull the lever, this person will certainly be hit by the train and die. You have two options: 1 Do nothing, and the train kills the five people on the main track. 2 Pull the lever, diverting the train, where it kills one person. Answer the following questions and discuss with other members of the class. 1 What decision would you make? 2 Brainstorm a list of possible crimes you could be accused of committing in this scenario. 3 If you chose to do nothing, would that be immoral? Would it be a crime? 4 If you chose to pull the lever, would that be immoral? Would it be a crime? filler pic to be supplied of speeding train - no caption
Chapter 2 presumption of innocence 39 Legal brief 2.2 Fagan v Metropolitan Police Commissioner (1969) 1 QB 439 In this English case, the defendant, Mr Fagan, was being directed by a police officer to park his car. The officer instructed Mr Fagan to move his car. Mr Fagan reversed his car and accidentally drove onto the police officer s foot. The police officer, presumably in some pain, shouted at Mr Fagan to get off his foot. Instead, in an act of defiance Mr Fagan refused to move and told the police officer that he should wait. Mr Fagan was charged with assaulting a constable in execution of his duties. The court had to decide on the question of whether the actus reus and the mens rea of a crime must occur at the same time. Mr Fagan argued that at the time he committed the actus reus of driving over the officer s foot, it was a complete accident and therefore there was no mens rea (no intent or guilty mind ). At that point when he did form the intent to harm the officer, he was no longer committing the actus reus; instead he was merely omitting (failing) to move his car. Since criminal liability for an omission is rare, Mr Fagan argued that he could not be charged for assaulting the officer. The court rejected Mr Fagan s argument and held that keeping the car on the officer s foot was not an omission, it was actually one long and continual assault. Therefore, when Mr Fagan did finally form the intention to harm the officer (the mens rea), he was still committing the actus reus. This case confirmed two important points about actus reus and mens rea: An omission (failing to act) is in most circumstances not an actus reus, with some rare exceptions. The actus reus and the mens rea must occur at the same time.
40 Cambridge Making and Breaking the Law Strict liability offences do not require the prosecution to prove intent. Strict liability offences Not all offences require the prosecution to prove mens rea. In some cases, the prosecution will only be required to show that a criminal act (actus reus) has taken place, and does not have to prove whether there was intent (mens rea) to commit that act. These types of offences are known as strict liability offences. The aim of strict liability offences is to set standards for behaviour. Any breach of that standard results in criminal liability, regardless of whether the person intended to do something illegal. An example of a strict liability offence is speeding. The police simply need to show that you broke the speed limit (the actus reus), and it does not matter whether you intended (mens rea) to do so. Other examples of strict liability offences include occupational health and safety offences, some regulations concerning pollution, and selling alcohol or cigarettes to minors. Providing proof of a person s intentions can sometimes be quite difficult, which means strict liability offences make it much easier to convict a person of a crime, and provide less protection for the accused. Further, because they ignore the element of mens rea, it can be argued that strict liability offences punish people who are morally blameless. As a result, strict liability offences tend to be limited to either minor offences or offences where the government wishes to maximise compliance with the law. Speeding offences, for example, are strict liability offences because it is a public safety issue for the government to ensure everybody follows the speed limits. Strict liability offences also have administrative advantages. They are much easier to prove, which can help the court system deal with a greater volume of offences. View the website of the Australian Law Reform Commission and follow the links to Publications, and then Traditional rights to view the report: Traditional Rights and Freedoms Encroachments by Commonwealth Laws (ALRC Report 129). Figure 2.2 Speeding offences are strict liability offences because it is a public safety issue. Activity 2.7 Structured questions Check your understanding 1 What is a strict liability offence? 2 Who can create a strict liability offence? 3 Research the Australian Law Reform Commission report Traditional Rights and Freedoms Encroachments by Commonwealth Laws (ALRC Report 129) (see weblink for details) and answer the following questions. a Create a list of strict liability offences which exist in Australia. b In what circumstances would it be justifiable to implement strict liability offences? c In what circumstances would it not be justifiable to implement strict liability offences?
Chapter 2 presumption of innocence 41 STRICT LIABILITY OFFENCES ARE THEY JUSTIFIED? In March 2016, The Australian Law Reform Commission published a report examining Commonwealth laws that encroach on some of the rights and freedoms recognised by Australia s common law. One of the areas identified as potentially problematic are strict liability offences, because a person can be convicted without intending to do wrong or being at fault. There are a range of areas in which the Commonwealth has imposed strict liability offences, one of which is environmental protection. The Environment Protection and Biodiversity Conservation Act 1999 (Cth) is the primary tool for environmental regulation and protection at the Commonwealth level. The Act contains a number of strict liability offences. The purpose of these strict liability offences is to ensure the prosecution does not need to prove that defendants knew they were harming a protected species or operating in a protected place. Age of criminal responsibility These strict liability offences were justified in three main ways: The Act aimed to protect matters of national environmental significance, meaning the imposition of strict liability is appropriate to ensure people sufficiently respected and observed the requirements of the laws. The requirement to prove mens rea in regards to issues such as whether a person knew a species was a threatened species was a substantial obstacle in successfully prosecuting these offences. Strict liability offences can also be justified on the basis that it prevents any arguments about whether the accused had knowledge of the law. The Committee examining this issue accepted that in these circumstances a strict liability offence could be justified. In Victoria, the minimum age at which you can be convicted of a crime is 10 years old. A child under the age of 10 years cannot commit a criminal offence. This is known as the age of criminal responsibility, and is determined by the Children, Youth and Families Act 2005 (Vic). We also assume that children between the ages of 10 and 14 are incapable of committing a crime because they are not able to distinguish between right and wrong. This is known as the principle of doli incapax. The principle of doli incapax is a rebuttable presumption. We call this a rebuttable presumption because the starting position is to presume that children between 10 and 14 do not understand right and wrong, but this can be rebutted by evidence presented by the prosecution that the child did know the difference between right and wrong. If the prosecution can prove this, then a child between 10 and 14 can be prosecuted for committing a criminal offence. Children over 14 can be charged with crimes in the same way that adults can, but children (up to the age of 18) are dealt with by the Criminal Division of the Children s Court. The age of criminal responsibility is the minimum age at which a person can be convicted of a criminal offence. In Victoria this age is 10 years of age.
42 Cambridge Making and Breaking the Law NEWSREPORT 2.2 Australia s breach of international standards on criminal responsibility age is taking its toll on Indigenous children, says Amnesty International Australia OUR CULTURE HAS BEEN DESTROYED BY colonisation and the stolen generation. Mr Taylor is referring to an 11-year-old who has been charged with the murder of a 26-year-old man. The child is the youngest known person in Australia s recorded history to have been charged with murder. The child was charged along with three other people after a clash between groups at 3.30am on January 27 in Perth, Western Australia. Mr Taylor says children are turning to alcohol and drugs in response to losing their culture. There are scars, they re scars of the White Australia policy, of being torn from your mother s arms, the 76-year-old says. Call to raise the age of criminal responsibility Ten is the age that criminal age of responsibility begins in all jurisdictions in Australia. But the UN Committee on the Rights of the Child says the age should be 12. In a UN report in 2007 it advised that, a minimum age of criminal responsibility below the age of 12 years is considered by the committee not to be internationally acceptable. Australia s criminal responsibility legislation holds a grey area. While the criminal responsibility age starts at 10, the law contains a rebuttable presumption known as doli incapax that rules a child between age 10 and 14 is incapable of committing a criminal act. Amnesty International Australia told NITV News the age of criminal responsibility should rise from age 10 to 12, in line with brain development research. Australia is out of line with international standards in holding children as young as 10 criminally responsible for their actions, it says. Amnesty says this particular case is terribly sad, and devastating for the victim s loved ones. But even in a case as difficult as this, it believes international standards must be upheld. The case of the 11-year-old boy in Western Australia is no exception. As a child under the age of 12 he should not be held criminally responsible, but Australia s out-of-step laws dictate that he will be. This is not the first time Amnesty has called for the age to be raised around criminal responsibility. In August 2015, the organisation along with other rights and legal bodies, wrote an open letter to the Attorneys-general in Australia calling for the age to reflect the international standards. Western Australia Attorney-General Michael Mischin told NITV News the state government does not intend to raise the age of criminal responsibility. However, a child under the age of 14 years is not criminally responsible unless it can be proved beyond reasonable doubt that at the time of the alleged offence the accused child had the capacity to know that he or she ought not do the act or make the omission giving rise to the offence, Mr Mischin said. In short, the law already takes into account the accused child s level of maturity and intellectual development. Activity 2.8 Structured questions Apply your understanding low res Read News report 2.2 and answer the following questions. 1 Explain what the age of criminal responsibility means. 2 What is the principle of doli incapax, and why does our legal system apply this principle? 3 In what circumstances can a child between 10 and 14 years of age be convicted of a criminal offence? 4 Write an argument for or against raising the age of criminal responsibility to 12 years of age. Discuss your response with other classmates.
Chapter 2 presumption of innocence 43 2.4 Types of crime The term crime can encompass a wide range of offences. Broadly speaking, criminal offences can be divided into two categories: crimes against the person crimes against property. Distinction between crimes against the person and crimes against property Crimes against the person involve physical harm to an individual or threats to cause harm. The most common crimes against the person include homicide, assault and sexual offences. Crimes against property involve taking or damaging a person s property. Some of the most common crimes against property include theft, property damage and burglary. Sometimes, the same act can be both a crime against the person as well as a crime against property. For example, robbery involves taking property from another person (a crime against property) but it also involves the use or threat of violence (a crime against the person). 2.5 Summary and indictable offences One way that crimes can be categorised is according to their severity, with less serious crimes being known as summary offences and more serious crimes being known as indictable offences. Summary offences A summary offence is a criminal offence that can be heard in the Magistrates Court by a magistrate sitting alone, rather than by a judge and jury. A summary offence can even be heard in the absence of the accused. This means the defendant can still be convicted even if they do not attend their court hearing. Many summary offences are found in the Summary Offences Act 1966 (Vic) and are typically considered to be less serious offences such as: traffic offences (speeding, drink driving) offensive behaviour (disorderly conduct, public drunkenness) property damage (graffiti). Although summary offences are considered less serious than indictable offences, and therefore attract less serious sanctions, the consequences can still be quite severe. Under the Sentencing Act 1991 (Vic), the maximum term of imprisonment for a summary offence is two years, but the magistrate could also choose to impose fines or a Community Correction Order, as well as a variety of other sanctions. Indictable offences An indictable offence is a criminal offence heard in the County Court or Supreme Court by a judge and jury. Indictable offences are serious offences such as murder, rape, theft and robbery. Indictable offences cannot be heard in the absence of the accused. Further, section 80 of the Australian Constitution guarantees that indictable offences shall be heard by a jury. These greater protections are to ensure the defendant is treated fairly, since there are more serious sanctions available for indictable offences. The maximum term of imprisonment available for murder, for example, is life in prison. Crimes against the person involve physical harm or threats of harm, whereas crimes against property involve taking or destroying property. Summary offences are less serious crimes heard by a magistrate. Indictable offences are serious crimes heard by a judge and a jury.
44 Cambridge Making and Breaking the Law A principal offender is a person who committed, assisted or encouraged the criminal offence. An accessory is a person who impedes the apprehension, prosecution or conviction of a principal offender. Indictable offences heard summarily Indictable offences heard summarily are serious offences that, with the consent of the accused, can be heard in the Magistrates Court. For example, Schedule 2 of the Criminal Procedure Act 2009 (Vic) allows theft to be heard summarily if the value stolen does not exceed $100 000. It can be beneficial for an accused to consent to an indictable offence to be heard summarily, since the sanctions available in the Magistrates Court are much less serious. Activity 2.9 Structured questions Check your understanding 1 What is the difference between a summary offence and an indictable offence? 2 Why would an offender choose to have an indictable offence heard summarily? 3 Distinguish between crimes against the person and crimes against property, using an example of each. 4 Fill out the following table. Crime Theft Murder Manslaughter Robbery Graffiti Rape Assault Is this crime a summary offence or indictable offence? 2.6 Participants in a crime Is this a crime against the person or crime against property? The possible participants in a crime can be divided into principal offenders and accessories. Principal offender The principal offender is the person who commits the actus reus of the crime. For example, in the case of a bank robbery, the person who actually took the money would be the principal offender. It is also possible to become a principal offender if you assist, encourage or direct the offence. For example, a person who stayed outside the bank and acted as a lookout could still be charged as a principal offender because they assisted in the offence. Accessory to crime An accessory is a person who impedes the apprehension, prosecution, conviction or punishment of a principal offender. In other words, if someone else commits a crime, you could be an accessory if you try to prevent them from facing justice. For example, if a person knowingly hides one of the bank robbers from a police search, they could become an accessory. You can only be charged as an accessory to a crime if the principal offender committed a serious indictable offence punishable by more than five years imprisonment.
Chapter 2 presumption of innocence 45 Activity 2.10 Case studies Types of offenders In each of the following case studies, identify the principal offender and the accessory. Case A Nick and Harmeen rob a bank, while Lauren waits outside in the get-away car. Once they escape, Nick s mother offers to hide them while the police search. Case B Juliana has escaped from jail after being charged with drug trafficking. Her friend Zan refuses to let Juliana hide in his house. When the police interview Zan later, however, he never mentions seeing Juliana. Case C Sarah steals a pair of jeans from her favourite store, then posts on Facebook to all her friends about how easy it was to get away with. Case D Kelly pays a nine-year-old child to egg the neighbour s house.
46 Cambridge Making and Breaking the Law Key point summary Do your notes cover all the following points? The purposes of criminal law - Establishing a code of conduct - Creating a system to resolve disputes - Recognising individual s rights What is a crime? - Crimes are acts which are characterised as: against the law punishable immoral harmful. The presumption of innocence - A person accused of a crime is presumed innocent until proven guilty. - The burden of proof is on the prosecution to prove that the accused is guilty. - The standard of proof in a criminal trial is beyond reasonable doubt. This refers to how certain a judge or jury must be before convicting an accused. Key concepts of criminal law - Elements of a crime Actus reus is the criminal act associated with an offence. Mens rea is the guilty mind or intent associated with an offence. Both actus reus and mens rea must be proven for an accused to be convicted of an offence. Strict liability offences do not require the prosecution to prove mens rea (intent to commit the crime). - The age of criminal responsibility is the minimum age at which a person can be convicted of a criminal offence. In Victoria this age is 10 years of age. Children younger than this age are considered incapable of understanding or committing a crime. Types of crime - Crimes against the person involve physical harm or threats of harm. Some of the most common crimes against the person are homicide, assault and sexual offences. - Crimes against property involve the taking or destruction of property. Some of the most common crimes against property are theft, burglary and property damage. Difference between summary and indictable offences - Summary offences are less serious crimes heard by a magistrate. - Indictable offence are serious crimes heard by a judge and a jury. Participants in a crime - A principal offender is a person who committed, assisted or encouraged the criminal offence. - An accessory is a person who impedes the apprehension, prosecution or conviction of a principal offender.
Chapter 2 presumption of innocence 47 End-of-chapter questions Revision questions 1 Explain the characteristics of a crime. 2 Why is the presumption of innocence considered to be a critical principle of criminal law? 3 Use an example to explain the meaning of strict liability offence. 4 Distinguish between a principal offender and an accessory. Practice exam questions 1 The main purpose of criminal law is to create a code of conduct that regulates behaviour, ensures order and protects the community. Explain how the law achieves this purpose. 2 Explain the two elements of a crime. Use an example to support your answer. 3 Explain the difference between crimes against the person and crimes against property. Provide an example of each to show the differences. 4 Distinguish between a summary offence, an indictable offence and an indictable offence heard summarily. Provide an example of each type of offence to support your answer.