Criminal Law Notes Sample Criminal Law Exam Notes Topic 1 ...
Criminal Law Notes Sample Criminal Law Exam Notes Topic 1 – Crime, Law and Morality - Norrie o The considerations taken into account in the criminal law are much narrower than those we consider in morality - What is the basis of criminal responsibility? o Moral wrongness? Common morality is shown by disgust and this denotes what should be illegal (Devlin) Who determines what is immoral though o Individual autonomy? Should you have as much freedom to do whatever you want to the extent that it does not impose on the freedom of others o Community welfare? - Findlay, Odgers and Yeo Should acts be criminalised because they harm public interests Topic 2 – Principles of Criminal Law - The Commonwealth has no power to make crimes unless they have a head of power - NSW is a common law state o Common law is the source of the criminal law (many legislated laws reflect the common law) o Defences continue to exist in the common law o Statutes do not repeal the common law unless it shows such an intention o (For Code states such as QLD, WA the legislation is exhaustive and replaces the common law offences) - Ashworth o Principle of Individual Autonomy Each individual should be treated as responsible for their behaviour People who have voluntarily performed the actusreus of an offence may be held criminally liable – Findlay, Odgers and Yeo Factual element = have the capacity by free will to make meaningful choices Principle of alternative possibilities = individual should only be held responsible for conduct if they could have done otherwise (Hart) Normative element = individuals should be respected and treated as agents capable of choosing their acts. Without regarding individuals as capable of independent agency they can hardly be regarded as moral persons
This emphasis on individual choice militates against creating offences based on paternalistic grounds. The state should leave for individuals to decide what is in their best interests May not pursue goals that infringe on other’s autonomy Ashworth assumes people have sufficient free will to make meaningful choices, but do they really Principle of Welfare (Raz) Emphasises the state’s obligation to create the social conditions necessary for the exercise of full autonomy by others Gives weight to collective goals Mutual interdependence with individual autonomy (each act as a restraint on one another) Objective mental elements are more consistent with this principle (they call it community welfare) – Findlay, Odgers and Yeo Defence of intoxication (or rather lack thereof) is influenced by this factor – Findlay, Odgers and Yeo Harm Principle (Mill) State is justified in criminalizing any conduct that causes harm to others Limiting principle, restricts the criminal law from penalising conduct that is regarded as immoral, but is not harmful But what is harm? It is a good reason in support of penal legislation that it would probably be effective in preventing harm to persons other than the actor and there is no other means as effective Wrongfulness Principle Committing a wrong against another is the essence of most serious crimes without the need for harm Public element Duff – the public valuation of the wrong determines whether it should be criminalised Minimalist Approach Criminalisation should respect human rights protections Respect freedom of expression, association, thought, privacy Right not to be punished (Husak) Burden of proof should lie with those wishing to impose criminal liability Criminalisation as a last resort Morality, social convention and peer pressure are alternative sources of control Less serious misconduct is more appropriately dealt with by the civil law Don’t criminalise where it would be counter-productive
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Don’t create an offence where this might cause greater social harm or where it is unlikely to be effective o Morally Wrong Behaviour (Devlin) Society is entitled to use the criminal law against behaviour which may threaten its existence Common morality ensures the cohesion of society Is there such a thing as common morality? Invades the realm of personal autonomy
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o Remote Harms Preventative criminalisation to avoid conduct which may create an opportunity for serious harm to be caused subsequently o Main determinants of criminalisation continue to be political opportunists o May be a limited role for paternalistic offences to protect the vulnerable Maximum sentences should be proportionate to the seriousness of the wrongdoing
Topic 3 Individual Liability Burden of Proof - The onus is on the prosecution to prove all elements of the offence beyond reasonable doubt = Golden Thread - Woolmington - Legal Burden o Prosecution has the legal burden to prove the conduct elements, mental elements and disprove defences (except SIAM/insanity) Statutory offences may place the legal burden on the accused to prove or disprove certain facts Where the legal burden is placed on the accused the standard of proof is the balance of probabilities o Must prove Beyond Reasonable Doubt (DPP v Woolmington) BRD – whether there is any reasonable possibility that the accused did not do what the Crown alleges. Does not require absolute certainty. o Jury determines whether the prosecution has successfully displaced this burden - Evidential Burden o Obligation to produce sufficient evidence so that the trier of fact (jury) may consider it o The evidential standard of proof is of a reasonable possibility. This means if believed and uncontradicted it would suggest a reasonable doubt in the minds of a reasonable jury as to whether that version may be true o For the elements of the offence the prosecution has the evidential burden o For defences the accused has an evidential burden o Once the evidential burden is fulfilled, turn to the legal burden to prove guilt o Judge decides whether the issue has the support of sufficient evidence to allow it to be considered by the jury Burden of Proof
Legal Burden
Placed on Prosecution - Prove all elements of the offence BRD - Rebut most defences BRD Placed on Accused - Defence on mental impairment - Defence of SIAM
Evidential Burden
Placed on Prosecution for the elements of the crime
Placed on the accused for defences
Actus Reus - Physical/conduct element of the crime - Everything which is not the mental element Capacity - Some people are not legally responsible for their acts because they do not have the capacity for rational choices - Means that despite conduct and mensreathey are not guilty as they lack capacity - Mental Illness o Pre-trial fitness to plead Accused must be aware of the nature of the proceedings against them and be capable of pleading and participating in the proceedings (R v Presser) If this claim is successful an order is made to detain the person in an appropriate centre until they are fit to stand trial (indefinite detention) - Children o Under 10 years old children have no legal capacity S 5 Children (Criminal Proceedings) Act Even if they have done the act they cannot be prosecuted o Aged between 10-14 children may be prosecuted DoliIncapax There is a rebuttable presumption against criminal capacity. There must be strong and pregnant evidence to the contrary to rebut it - B 1958 Must show that the child was aware the act was wrong in a way that attracts criminal liability, rather than just knowing it was naughty - CRH o Persons 14 and over have full adult criminal responsibility Volition - For the accused to be guilty of an offence they must not only have committed the actusreusbut also must have done so voluntarily – Ryan; Falconer - The prosecution is entitled to presume voluntariness – Falconer - To rebut the presumption; o 1. The accused must raise evidence, satisfying the evidential burden of reasonable possibility, that their conduct was involuntary – Ryan; Bratty; Falconer Trial judge can withdraw the issue of voluntariness from the jury if the standard of proof is not satisfied (Whitfield) o 2. If satisfied the prosecution must then disprove beyond reasonable doubt that the act was involuntary (must prove BRD it was voluntary) – Woolmington; Ryan - Whether a reflex action is a voluntary act is a matter for the jury to decide - Murray
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The argument that an act is involuntary is not a defence, rather it is an assertion that the prosecution has failed to prove an essential element of the case Person must be conscious to have acted voluntarily Must have been a will to act Ryan – shooting o Must be a willed, voluntary act which has caused the death charged o Act may be willed, even thought its consequences may not be intended o Windeyer J – Look at the series of acts and determine if they were voluntary o Open to consider that a series of acts were voluntary such that the final act, while perhaps involuntary, could still be criminal Falconer - shooting o Only the act must be willed, not the consequences o Willed involves a consciousness of the nature of the act and a choice to do an act of that nature o Act is shooting of the loaded gun which is not restricted to the mere contraction of the trigger finger o It is presumed that an act done by a person who is conscious is willed and voluntary Murray – good for shooting cases o The more precise the identification of the death causing act, the more likely it is that it will be hard to discern a conscious decision to make that movement o The death causing act (shooting) can be seen as a number of movements that can be identified as separate ones o Gummow and Hayne JJ Whether or not particular elements (load, cock, present, fire) were the subject of conscious consideration, taken as a whole they were willed Just because you don’t stop and think doesn’t make it unwilled Cant isolate the final act o Gaudron and Kirby Should let the jury decide whether the final act was involuntary Kirby said the ultimate act was pressing the trigger Ugle o Stabbing allegedly accidentally during fight. o Jury should have been directed as to whether the stabbing occurred independently of the exercise of will o Before you consider self-defence you need to consider voluntariness Jiminez o Driving a car, had fallen asleep and killed a passenger o If they were asleep, while he was asleep his actions were not conscious or voluntary
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o Voluntary dangerous driving was found to have occurred immediately before falling asleep Examples of involuntary conduct o Spasm, convulsion, reflex action o Acts performed when asleep or unconscious o Act performed during a state of impaired consciousness depriving the person of the will to act (being drugged, but not when you chose to take them)
This emphasis on individual choice militates against creating offences based on paternalistic grounds. The state should leave for individuals to decide what is in their best interests May not pursue goals that infringe on other’s autonomy Ashworth assumes people have sufficient free will to make meaningful choices, but do they really Principle of Welfare (Raz) Emphasises the state’s obligation to create the social conditions necessary for the exercise of full autonomy by others Gives weight to collective goals Mutual interdependence with individual autonomy (each act as a restraint on one another) Objective mental elements are more consistent with this principle (they call it community welfare) – Findlay, Odgers and Yeo Defence of intoxication (or rather lack thereof) is influenced by this factor – Findlay, Odgers and Yeo Harm Principle (Mill) State is justified in criminalizing any conduct that causes harm to others Limiting principle, restricts the criminal law from penalising conduct that is regarded as immoral, but is not harmful But what is harm? It is a good reason in support of penal legislation that it would probably be effective in preventing harm to persons other than the actor and there is no other means as effective Wrongfulness Principle Committing a wrong against another is the essence of most serious crimes without the need for harm Public element Duff – the public valuation of the wrong determines whether it should be criminalised Minimalist Approach Criminalisation should respect human rights protections Respect freedom of expression, association, thought, privacy Right not to be punished (Husak) Burden of proof should lie with those wishing to impose criminal liability Criminalisation as a last resort Morality, social convention and peer pressure are alternative sources of control Less serious misconduct is more appropriately dealt with by the civil law Don’t criminalise where it would be counter-productive
o
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Don’t create an offence where this might cause greater social harm or where it is unlikely to be effective o Morally Wrong Behaviour (Devlin) Society is entitled to use the criminal law against behaviour which may threaten its existence Common morality ensures the cohesion of society Is there such a thing as common morality? Invades the realm of personal autonomy
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o Remote Harms Preventative criminalisation to avoid conduct which may create an opportunity for serious harm to be caused subsequently o Main determinants of criminalisation continue to be political opportunists o May be a limited role for paternalistic offences to protect the vulnerable Maximum sentences should be proportionate to the seriousness of the wrongdoing
Topic 3 Individual Liability Burden of Proof - The onus is on the prosecution to prove all elements of the offence beyond reasonable doubt = Golden Thread - Woolmington - Legal Burden o Prosecution has the legal burden to prove the conduct elements, mental elements and disprove defences (except SIAM/insanity) Statutory offences may place the legal burden on the accused to prove or disprove certain facts Where the legal burden is placed on the accused the standard of proof is the balance of probabilities o Must prove Beyond Reasonable Doubt (DPP v Woolmington) BRD – whether there is any reasonable possibility that the accused did not do what the Crown alleges. Does not require absolute certainty. o Jury determines whether the prosecution has successfully displaced this burden - Evidential Burden o Obligation to produce sufficient evidence so that the trier of fact (jury) may consider it o The evidential standard of proof is of a reasonable possibility. This means if believed and uncontradicted it would suggest a reasonable doubt in the minds of a reasonable jury as to whether that version may be true o For the elements of the offence the prosecution has the evidential burden o For defences the accused has an evidential burden o Once the evidential burden is fulfilled, turn to the legal burden to prove guilt o Judge decides whether the issue has the support of sufficient evidence to allow it to be considered by the jury Burden of Proof
Legal Burden
Placed on Prosecution - Prove all elements of the offence BRD - Rebut most defences BRD Placed on Accused - Defence on mental impairment - Defence of SIAM
Evidential Burden
Placed on Prosecution for the elements of the crime
Placed on the accused for defences
Actus Reus - Physical/conduct element of the crime - Everything which is not the mental element Capacity - Some people are not legally responsible for their acts because they do not have the capacity for rational choices - Means that despite conduct and mensreathey are not guilty as they lack capacity - Mental Illness o Pre-trial fitness to plead Accused must be aware of the nature of the proceedings against them and be capable of pleading and participating in the proceedings (R v Presser) If this claim is successful an order is made to detain the person in an appropriate centre until they are fit to stand trial (indefinite detention) - Children o Under 10 years old children have no legal capacity S 5 Children (Criminal Proceedings) Act Even if they have done the act they cannot be prosecuted o Aged between 10-14 children may be prosecuted DoliIncapax There is a rebuttable presumption against criminal capacity. There must be strong and pregnant evidence to the contrary to rebut it - B 1958 Must show that the child was aware the act was wrong in a way that attracts criminal liability, rather than just knowing it was naughty - CRH o Persons 14 and over have full adult criminal responsibility Volition - For the accused to be guilty of an offence they must not only have committed the actusreusbut also must have done so voluntarily – Ryan; Falconer - The prosecution is entitled to presume voluntariness – Falconer - To rebut the presumption; o 1. The accused must raise evidence, satisfying the evidential burden of reasonable possibility, that their conduct was involuntary – Ryan; Bratty; Falconer Trial judge can withdraw the issue of voluntariness from the jury if the standard of proof is not satisfied (Whitfield) o 2. If satisfied the prosecution must then disprove beyond reasonable doubt that the act was involuntary (must prove BRD it was voluntary) – Woolmington; Ryan - Whether a reflex action is a voluntary act is a matter for the jury to decide - Murray
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The argument that an act is involuntary is not a defence, rather it is an assertion that the prosecution has failed to prove an essential element of the case Person must be conscious to have acted voluntarily Must have been a will to act Ryan – shooting o Must be a willed, voluntary act which has caused the death charged o Act may be willed, even thought its consequences may not be intended o Windeyer J – Look at the series of acts and determine if they were voluntary o Open to consider that a series of acts were voluntary such that the final act, while perhaps involuntary, could still be criminal Falconer - shooting o Only the act must be willed, not the consequences o Willed involves a consciousness of the nature of the act and a choice to do an act of that nature o Act is shooting of the loaded gun which is not restricted to the mere contraction of the trigger finger o It is presumed that an act done by a person who is conscious is willed and voluntary Murray – good for shooting cases o The more precise the identification of the death causing act, the more likely it is that it will be hard to discern a conscious decision to make that movement o The death causing act (shooting) can be seen as a number of movements that can be identified as separate ones o Gummow and Hayne JJ Whether or not particular elements (load, cock, present, fire) were the subject of conscious consideration, taken as a whole they were willed Just because you don’t stop and think doesn’t make it unwilled Cant isolate the final act o Gaudron and Kirby Should let the jury decide whether the final act was involuntary Kirby said the ultimate act was pressing the trigger Ugle o Stabbing allegedly accidentally during fight. o Jury should have been directed as to whether the stabbing occurred independently of the exercise of will o Before you consider self-defence you need to consider voluntariness Jiminez o Driving a car, had fallen asleep and killed a passenger o If they were asleep, while he was asleep his actions were not conscious or voluntary
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o Voluntary dangerous driving was found to have occurred immediately before falling asleep Examples of involuntary conduct o Spasm, convulsion, reflex action o Acts performed when asleep or unconscious o Act performed during a state of impaired consciousness depriving the person of the will to act (being drugged, but not when you chose to take them)
