LAWS 1021:

Crime and the Criminal

Process

Term 1 - 2024
 Crime and the Criminal Process Overview
CRIMINALISATION (Classes 1 and 2)
CRIMINAL PROCESS (Classes 10-15)
 Contextualising Criminal Law Theories of Criminalisation –
 Two Tiers of Justice; Technocratic Justice
contextual vs normative
 Technocratic Justice (case study: covid fines & drug
possession)
COMPONENTS OF CRIMINAL OFFENCES (Classes 3-6)  Process as Punishment (case study: deaths in custody)
 General principles; Burden of Proof * We are here!  Bail Reform and Application of the Bail Act 2013
 Legal Personhood; * and here!  (In)visibility of Pre-Trial Process (case study: Andrew
 Actus Reus Mallard)
 Mens Rea; Creating facts through interrogation  Miscarriages of Justice
 Strict & Absolute Liability; Statutory Interpretation
OFFENCES (Classes 16-17)
 Public Order – regulating public space
POLICE POWERS (Classes 7-9)
 Police Discretion and Regulation of Police Powers;  Public Order – offensiveness
Admissibility of Evidence  Drug Offences (NSW)
 Powers to Arrest; Reasonable Force
 Powers to Stop and Search
REVISION (Class 18)
• Contextual v Normative approaches to criminalisation
Class 2 Recap
• Ashworth – Notwithstanding ‘lost cause’ conclusion, identifies a principled core based on 4 interlinked principles
• Substantial wrongdoing: distinguish from less acceptable propositions that prevention is sufficient for criminalisation and that criminal law necessarily an effective means of
prevention
• Respect for equal treatment and proportionality
• Accused to be afforded appropriate protections : minimum protections ought to be inherent to criminal procedure
• Proportionate sentencing
• Antony Duff – Communicative and relational theory of criminal responsibility
• Husak – 7 principles of constraint (4 internal and 3 external)
1. Proscribed harm must be non-trivial or evil
2. The defendant’s conduct must in some sense be wrongful
3. Punishment justified only when and to the extent it is deserved
4. Burden of proof should be placed on those who favour criminal legislation
5. The state must have a substantial interest in the objective of the statute (3 analytically distinct parts: identification of the state interest, the legitimacy of the interest, whether
the interest is substantial)
6. The law must advance that interest (especially re deterrence – see next slide)
7. The statute must be no more extensive than necessary to achieve its purpose (legislators must be prepared to evaluate alternate means to attain the statutory purpose)

• Not in the readings but approaches to the justification of criminal law and punishment
• JS Mill and Harm
• Risk
• Morality (Devlin v Hart Debate)
Introduction to Components of Criminal Offences
 General Principles – 246-255
 Constituting legal personhood – pp 151-156
 Coincidence of actus reus and mens rea – pp 157-160
General Principles - Burden of Proof 246 cf
• What is the burden of proof?
• Incorporates an evidential and legal burden – what is the difference?
• Why is it important that Prosecution bears the burden of proof?
• The “golden thread”
• Historically bop rested with Defence
• Current approach set out in Woolmington - 1935
• Sankey – quote on page 248 – classic statement of the principle
• Woolmington extensively diluted in practice
• Introduction of ‘reasonableness’ as an element of MR
• Statutory use of reasonable excuse defence on balance of probabilities
• Note Senate Standing Cttee discussion on page 249 re difference between evidential and legal burden
• Shifting evidential and legal burdens. Note difficulties in satisfying the evidential burden
• Role of evidential burden in defences (eg HRMF): Prosecution must negative defence beyond reasonable doubt
• Role of legal burden imposed on Defendant (eg DMTA deeming provisions): Defendant must prove purpose on balance of
probabilities
Constituting Legal Personhood
• Legal personhood is constructed within the criminal law – often not
synonymous with broader social understandings of responsibility
• Characteristics (eg age) of those considered in law to be capable of
committing a criminal offence are not fixed. Common law age was 7yo.
• Age of criminal responsibility in NSW and other Australian jurisdictions
currently 10 years old (subject to doctrine of doli incapax)
• UN standard: 12 yo – typically 14yo in European states
• Calls for it to be raised to 14 yo during NT Royal Commission have
triggered a wider debate reflected by the Raise the Age campaign
• NT government has committed to increasing to 12 yo
Doli Incapax
• Common law doctrine which applies to children aged 10-14 years (ie under 14)
• Creates a rebuttable presumption that a child of that age is incapable of criminal
wrongdoing
• Applies to all criminal charges but most caselaw involves very serious- but
atypical – offences by young people
• Basic principle part of a protective, not human rights, approach
• If issue raised, onus on prosecution to prove capacity beyond reasonable doubt
before child’s culpability is considered.
• Doctrine abolished in UK in 1998 but remains law in Australia, re-affirmed by
recent HCA decision in RP
• Watch this space! Raise the age campaign
RP v The Queen [2016] HCA 53; (2016)259 CLR 642
• RP appealed 2 sexual assault convictions involving sibling aged approximately 7 years old, when appellant
was 11 and a half years old
• Appealed to HCA on basis that DI not rebutted by the Crown
• Basic test summarised: gravely wrong as opposed to naughty/mischievous
• Cannot be rebutted solely as an inference from performing the act(s) – directs attention to child’s education
and environment in which child was raised
• Focus is on intellectual and moral development of the particular child.
• What rebuts presumption will vary (see egs); can’t be linked to relative age of child as rates of maturity vary
– need to focus on the intellectual and moral development of a particular child.
• Prosecution did not provide evidence enabling conclusion to be drawn about RP’s moral development.
Therefore did not prove beyond reasonable doubt that RP understood his conduct “was seriously wrong in a
moral sense.”
• Contrast to Laws J in C v DPP [1994] 3 WLR 888
Doli Incapax Scenario
• Check the forums on Moodle
Actus Reus and Mens Rea
• Terms refer to the relevant act/omission and the requisite mental
state (eg intention)
• Note more modern terminology: physical and fault elements
• Linked to philosophy of dualism conceptually structuring criminal law
on individual responsibility separated from material conditions and/or
social context
• Actus reus the distinctive element of a criminal offence: must be
established first
• See tables on page 158 of the text book - note significance of
circumstance/consequence requirements for many offences –
important for later discussions regarding mens rea
Crimes Act 1900 – s 33
33 Wounding or grievous bodily harm with intent
(1) Intent to cause grievous bodily harm
A person who—
(a) wounds any person, or
(b) causes grievous bodily harm to any person,
with intent to cause grievous bodily harm to that or any other person is guilty of an offence.

Maximum penalty—Imprisonment for 25 years.

Act Circumstance Consequence

Actus reus Voluntary Act None Cause GBH

Mens rea Intent N/A Intent

Crimes Act 1900 – s 61I
• Any person who has sexual intercourse with another person without
the consent of the other person and who knows that the other person
does not consent to the sexual intercourse is liable to imprisonment
for 14 years.
Act Circumstance Consequence

Actus reus Sexual Intercourse Without the other None

person’s consent
Mens rea Intent to have sexual Knowledge (but as N/A
intercourse defined in S 61HK)
Crimes Act 1900 – s 193C(1)
• A person is guilty of an offence if—
• (a) the person deals with property, and
• (b) there are reasonable grounds to suspect that the property is proceeds of crime, and
• (c) at the time of the dealing, the value of the property is $100,000 or more but less than $5 million.
• Maximum penalty—Imprisonment for 5 years.

Act Circumstance Circumstance or

Consequence?

Actus reus

Mens rea
Crimes Act 1900 – s 193C(1)
• A person is guilty of an offence if—
• (a) the person deals with property, and
• (b) there are reasonable grounds to suspect that the property is proceeds of crime, and
• (c) at the time of the dealing, the value of the property is $100,000 or more but less than $5 million.
• Maximum penalty—Imprisonment for 5 years.

Act Circumstance 1 Circumstance 2

Actus reus Deals with property Property is proceeds Value between

of crime $100,000 or $5million
Mens rea Intention Reasonable grounds Strict
to suspect (objective
test)
Crimes Act 1900 – s 43A
• (2) A person—
• (a) who has parental responsibility for a child, and
• (b) who, without reasonable excuse, intentionally or recklessly fails to provide the child with the necessities of life,
• is guilty of an offence if the failure causes a danger of death or of serious injury to the child.
• Maximum penalty—Imprisonment for 5 years.

Act Circumstance Consequence

Actus reus

Mens rea
Crimes Act 1900 – s 43A
• (2) A person—
• (a) who has parental responsibility for a child, and
• (b) who, without reasonable excuse, intentionally or recklessly fails to provide the child with the necessities of life,
• is guilty of an offence if the failure causes a danger of death or of serious injury to the child.
• Maximum penalty—Imprisonment for 5 years.
Act Circumstance Consequence

Actus reus Fails to provide child Has parental Causes a danger of

with necessities of responsibility for a death or of serious
life child injury
Mens rea Intentionally or (Strict Liability?) Strict? Knowledge or
recklessly (without recklessness?
reasonable excuse)
Coincidence of AR with MR – page 158 cf
• “General principle” that AR and MR must coincide.
• Most of the caselaw applies to homicide offences, often arising from domestic
violence
• Principle reaffirmed by HCA in Meyers, although the appeal was dismissed, and
murder conviction upheld
• HCA didn’t cite UK cases that considered longer timeframes
• Thabo Meli: impossible to divide up one of a series of acts
• TM followed in Church and Le Brun manslaughter cases
• Le Brun possibly the outer limit
• Development of notion of ‘continuing act’: Fagan
• ‘Video’ rather than ‘snapshot’ approach
• How far should this be taken, eg keeping excess change after leaving shop? See Potisk
Next Class
• Actus Reus