APPLY CRIMINAL LAW QLD595JUS01A

Materials Online unit guide includes Readings Videos Legislation

Legislation Criminal Code Act 1899 Regulatory Offences Act 1985 Summary Offences Act 2005

How to study Law Do not try and commit it all to memory Understand where to find the relevant information Access electronic information whenever possible

Study Tips Read the unit guide and associated readings Start to attempt the review questions Attempting the questions will start your research and learning process

Legal Concepts Greek Goddess of Justice

The Criminal Justice System Investigative – police Adjudicative – courts Correctional – custodial/community

WHAT IS LAW? Rules Rights & responsibilities Reflection of society Our lives are surrounded by rules. These rules may stem from our peer group, our families, religious influences, schools, and the workplace – just to name a few. These are non-legal rules. We are also subject to rules made by parliament and courts. These rules are called laws and are enforced by the State through courts. Purpose of Law Essentially, laws are designed to keep society together and to keep society functioning. They do this by: Protecting the individual. Protecting the society. Ensuring the effective and fair function of the community. What Does Law Do? The law reflects the way we live through the political systems of parliament, our federal constitutional structure and our electoral processes. The law reflects the way we live through the economic systems we have created. We are free to work in areas of our choice and to use, sell and occupy land. The law reflects the way we live through the social systems of marriage and family law, of free speech and the right to trial. The law reduces and resolves disputes by setting boundaries of acceptable behaviour and by setting sanctions to enforce behaviour. The law provides for change through the parliamentary process and the rules of common law.

External Influences Internal practices and procedures External integration Legislation Common law (case law) Judicial practice and procedure Information sharing

SOURCES OF LAW Custom Common Law – court decisions Statute Law – parliament Delegated legislation

Common Law Common law is also known as case law and arises from judicial decisions Precedent (stare decisis) is a feature of common law systems Precedent means that courts must follow decisions of higher courts within the same hierarchy Precedent is dependant upon case law judgements

The structure of the Australian court system The Australian Court System is based on a hierarchy of court Bottom level – Magistrate/ Local courts presided over by magistrates; minor matters civil and minor criminal Intermediate level – District Courts – judge; important civil matters; serious crime Superior courts – Supreme Courts – judge/s; no limit on civil and criminal jurisdiction; hears appeals High Court – pinnacle of Australian legal system; no appeal from its decisions

LEGISLATION The formal legal rules made by Parliament It is the dominant source of law A necessary requirement of contemporary society Proactive

THE LEGISLATIVE PROCESS A set procedure is followed: Commencing in the House of Representatives – 1st Reading – proposed Bill presented 2nd Reading – speech & debate Committee Stage 3rd Reading – if approved moves to the Senate & same procedure followed Royal Assent

Common Law and Legislation Common law principles subordinate to legislation Common law needs disputes before the courts to develop principles – (Donoghue v Stevenson) Legislation plays a reforming and modernising influence Legislation is the voice of democracy – judges not accountable

Delegated Legislation The power to make legislation remains with the Federal Parliament This power can be delegated to the States It is primarily in relation to matters that are insignificant to the Federal Government but of importance to the State Government

Legal Categories Public Law Criminal Law Administrative Law Constitutional Law Private Law Contract Law Trust Law Family Law Succession Tort Law Company Law

LEGAL PERSONNEL Judge Associate Jury Solicitor Barrister Depositions Clerk Inside a Magistrates Court Room Virtual Tour Inside District and Supreme Courts Virtual Tour

THE ADVERSARIAL PROCESS Criminal Prosecution commences proceedings Accused/defendant answers the charge Primarily freedom at risk Civil Plaintiff commences proceedings Respondent/defendant answers the claim Primarily money at risk

STANDARD OF PROOF Civil Criminal On the plaintiff on the balance of probabilities On the prosecution beyond a reasonable doubt

How to read case law Case law is court judgments Transcript of the proceedings of the matter Written decision of the presiding decision maker Written order of the court Case Law databases

Case title The prosecuting/complaining party name is first The defending/accused/responding party name is second ‘v’ for versus is in between and is pronounced as ‘and’ Cases starting with ‘R’ rather than a party name indicate criminal prosecution by the Crown (currently Regina)

CRIMINAL CODE ACT 1899

Locating Legislation www.legislation.qld.gov.au On introduction page select Home Then select Acts SL, as in force Choose ‘C’ from the alphabetical listing box Scroll down the page until you find the Criminal Code Act 1899 and select

Legislation Parts Chapters Sections A Section is the main building block of an act. Sections themselves are broken down into smaller parts: Sub Section Paragraph Sub Paragraph

66 Requirements of fine option orders Section and title 66 Requirements of fine option orders (1) A fine option order must contain requirements that the offender— (a) must report to an authorised corrective services officer at the place, and within the time, stated in the order; and (b) must perform in a satisfactory way community service directed by an authorised corrective services officer— (i) for the number of hours stated in the order; and (ii) at the times directed by the officer; and Paragraph Sub-section Sub-paragraph

Alternative location www.austlii.edu.au National website, includes all State and Federal Legislation Select Queensland under Cases and Legislation on the left hand side Select Queensland Consolidated Acts under Queensland Legislation Select ‘C’ from the alphabet listing Locate and select the Criminal Code Act 1899 NOT as user friendly

Navigating legislation Utilise the find function to locate relevant sections by entering specific offence titles Utilise the index on the left hand side to scroll through chapters and sections according to chapter and section numbers.

Finding offences What do you do to locate the penalty for murder in the Criminal Code Act 1899? Enter ‘murder’ into the find box Select ‘next’ or ‘previous’ on the find box to locate different uses of the word ‘murder’ in the legislation Locate the relevant section that specifies the penalty Answer the question with the set penalty and the section number to form the habit of locating and learning section numbers.

More offences What do you do to find the elements of the offence of stealing a car? Enter ‘steal’ or ‘steal car’ into the find box What do you do if the find box does not locate the offence? Enter an alternative word, like ‘motor vehicle’

Types of offences Indictable offences Summary offences Regulatory offences Simple offences

DEFENCES

Defences Explanation OR excuse? Can you excuse any behaviour that breaks the law? Can you explain why you behaved in a manner that broke the law? Will society accept your explanation?

Presumptions Presumption of law is something that is accepted as a fact in the absence of the evidence. Rebuttable presumption is something that is accepted as a fact until evidence proves otherwise Irrebuttable presumption is something that is accepted as a fact regardless of any evidence that proves otherwise

EVIDENCE

Evidence Evidence is provided to prove a fact It can support a contested fact It can disprove an accepted fact

Rules of evidence Hearsay – evidence must be attested to first hand and not overheard Expert – evidence that is accepted as expert in the area and therefore the knowledge is unquestionable Admissable – allowed in court Inadmissable – not allowed for various reasons

How a criminal matter gets to court and what happens there Police investigate matter Arrest suspect Charge suspect with commission of crime Bail applied for by person charged In summary matter or by election of accused, trial by magistrate Indictable offence requires judge and jury Accused asked to plead Lawyer for prosecution presents case Lawyer for accused presents case Judge or jury makes finding of fact Judge applies law Judge makes order

ELEMENTISATION Discuss, select offences from Criminal Code Act and provide examples of how to elementise See page 27 onwards in unit guide