LAW EXTENSION COMMITTEE CRIMINAL LAW AND PROCEDURE LECTURE 1-INTRODUCTION TO COURSE

ADMINISTRATIVE ISSUES Lecturers Assessment Lecture Program Contacting lecturers with Queries Recording of Lectures Course Materials (a) Prescribed Texts Hayes & Eburn Criminal Law and Procedure NSW 5th ed Howie & Johnson Annotated Criminal Legislation NSW (b) Reference Materials Waller & Williams, Criminal Law Text and Cases 13th ed Brown & Farrier et al, Criminal Laws Materials and Commentary on Criminal Process in NSW 6th ed Blackmore & Hoskings Criminal Law NSW

GENRAL PRINCIPLES OF CRIMINAL RESPONSIBLITY THE STRUCTURE OF AUSTRALIAN CRIMINAL JURISDICTION STATES AN TERRITORIES THAT HAVE A CRIMINAL CODE A Criminal Code is a piece of legislation that defines in detail the elements of criminal offence and defences in the statute. Queensland Western Australia Tasmania Northern Territory ACT (partly adopts the Commonwealth Criminal Code Act 1995, but also has a Crimes Act and common law principles)

GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY (CONT.) STATES AND TERRIORIES IN WHICH THE COMMON LAW PLAYS A MORE SIGNIFICANT ROLE IN DEFINING THE ELEMENTS OF OFFENCES AND DEFENCES NSW Victoria South Australia ACT

GENRAL PRINCIPLES OF CRIMINAL RESPONSIBILITY (CONT.) WHAT IS THE SOURCE OF CRIMINAL LAW IN NSW? NSW Statues, in particular Crimes Act NSW (1900) The common law, which defines the elements of many offences (e.g. larceny; robbery; assault; murder; manslaughter) and defences (e.g. duress, necessity) Other NSW Statutes that contain criminal penalties (usually monetary penalties) Commonwealth Statutes that contain criminal offences e.g Criminal Code 1995 (C’th)

GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY (CONT.) WHAT IS A CRIME? A Crime is different to civil causes of action (e.g. contract, tort) because: It contains a criminal penalty (e.g. imprisonment; fine), rather than damages for loss It involves conduct that is contrary to the social fabric (i.e. against public interest). It is usually prosecuted by the State (e.g. the Police or the Director of Public Prosecutions) rather than an individual. The standard of proof is different (beyond a reasonable doubt rather than on the balance of probabilities)

GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY (CONT.) ELEMENTS OF A CRIMINAL OFFENCE From the 17th and 18th century in England (the 13th century in respect of murder) the common law recognised that to commit a criminal offence, there were BOTH physical elements and mental elements that had to be proved. Offences involve ELEMENTS. The elements of the offence are divided into 2 categories, and ALL elements of the offence need to be proved: Actus Reus (Physical Elements) Mens Rea (Mental Elements).

GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY (CONT.) ELEMENTS OF CRIMINAL OFFENCES (CONT) PHYSICAL ELEMENTS OF THE OFFENCE Usually involve physical acts, not omissions. Omission to act can be an element of an offence (e.g. murder, involuntary manslaughter), but: The law must recognise a duty to act (the categories in which a duty to act are discussed in Takak (1988) 14 NSWLR 226 and Burns (2012) 290 ALR 713).

GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILTY (CONT) PHYSICAL ELEMENTS OF OFFENCE (Cont) Conduct must be voluntary. Distinction between voluntary conduct (actus reus) and mental elements of offence: Ryan (1967) 121 CLR 205. Causation The ‘a substantial cause’ test: Hallett [1969] SASR 141; also Moffat (2000) 112 A Crim R 201. The test involving actions of the victim responding to the actions of the defendant: Royall (1991) 172 CLR 378.

GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY (CONT) MENTAL ELEMENTS OF OFFENCES The test is subjective (i.e. from the perspective of the defendant, not of a reasonable person) with the exception of offences where criminal negligence is an element. The main mental elements are: (i) Intention; (ii) Recklessness; (iii) Negligence. INTENTION Zaburoni [2016] HCA 12, where the relevant offence was unlawfully transmitting a serious disease with intention to do so. Intention involves the defendant meaning to produce a particular result by his or her conduct (i.e. realising that a particular result or consequence will occur as a result of the conduct, and meaning to produce that result of consequence). It is to be different to “motive”.

GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY (CONT.) RECKLESSNESS A mental state less than intention Still involves foresight by the defendant of the consequences of his or her acts. Different test of recklessness for: Assault Sexual Assault Murder

GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY (CONT.) NEGLIGENCE Applies, in particular, to involuntary manslaughter by criminal negligence. If involves failure to act, rather than negligent acts, must still be a duty to act. A higher standard of negligence than the civil test of negligence in the law of tort. However, the test is objective. The ‘Nydam test’ (Nydam [1977] VR 430): “In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a such a high risk that death or grievous bodily harm would follow that the doing of the act warranted criminal punishment”. The ‘Nydam’ test applied by the High Court in Lavender (2005) 218 ALR 521.

GENEARAL PRINCIPES OF CRIMINAL RESPONSIBILITY (CONT) STATUTORY OFFENCES To be discussed in Topic 15 Distinction of statutory offences into offences of: (i) Absolute liability; (ii) Strict Liability; (iii) Offences with a mental element: He Kaw The (1985) 60 ALR 449

GENERAL PRINCIPLES OF CRIMINAL RESPONSIBLITY ASPECTS OF CRIMINAL PROCEDURE Indictable offences Summary offences Manner in which a criminal trial is conducted (i) Role of Judge (ii) Role of Jury Appeals from criminal convictions The role of the Appellant Court (e.g. the NSW Court of Criminal Appeal) in determining whether an error of law occurred.

GENERAL PRINICPLES OF CRIMINAL RESPONSIBILITY (CONT.) CIRCUMSTANCES IN WHICH THERE IS NO CRIMINAL RESPONSIBILITY No capacity to commit a crime (i.e. Child under 10 years of age) THE ELEMENTS OF THE OFFENCE HAVE BEEN PROVED, BUT THERE IS AN APPLICABLE DEFENCE Self Defence Extreme Provocation (applies only to murder) Diminished Responsibility (applies only to murder) Duress (does not apply to murder) Necessity (does not apply to murder) Insanity Automatism