Criminal Law11 Legal Studies

Assessment Extended Research Response (Written) 800-1,000 words Reference list and intext referencing Report format Draft: Friday Week 6 Final: Friday Week 8

Sources of Criminal Law Basic Elements of Criminal Law Criminal Offences

Against the person Against property Motor vehicles Queensland drug laws

Defences and Excuses Provocation Police Powers Criminal v Civil Law Committal and Summary Proceedings Trial by Judge and Jury Legal Representation Children as Offenders

Sentencing Contemporary Issues in Criminal Law Contemporary Cases

Patel Sica Morcombe Baden-Clay

Basic Elements of Criminal Law

Sources of Law: State Constitution Common law Statutory law Australian Constitution

Presumption of Innocence Strict Liability Offences Onus and Standard of Proof Actus reus and mens rea

Sources of Criminal Law

Queensland: Criminal Code Act 1899 (Qld) Covers most crimes Other Acts cover some areas of criminal law Criminal law exists to impose sanctions on

citizens whose conduct is considered unacceptable enough to deserve punishment by the state

Enforced by Queensland Police Service (QPS)

Other important Acts: Crime and Misconduct Act 2001 Penalties and Sentences Act 1992 Police Powers and Responsibilities Act 2000 Firearms and Offensive Weapons Act 1979 Explosives Act 1999 Prostitution Act 1999 Drugs Misuse Act 1986 Domestic and Family Violence Protection Act 1989 Transport Operations (Road Use Management) Act 1995 Offenders Probation and Parole Act 1980 Peace and Good Behaviour Act 1982

Access three of the Acts listed (www.legislation.qld.gov.au).Identify:1. The main purpose of

the Act2. Two provisions which

contain a criminal offence

Commonwealth: various federal legislation Criminal Code Act 1995 (Cth) Crimes Act 1914 (Cth) Anti-Terrorism Act 2005 (Cth)

Enforced by Australian Federal Police (AFP) Exclusive powers in Constitution

New laws are created Why?

Assaulting a pregnant woman killing an unborn child

Computer hacking Intentional transmission of serious disease Bomb hoax message Making or distributing child exploitation material Drink spiking

Find one of these new laws. Explain what changes/events have occurred in society that would warrant the addition of these laws.

Presumption of Innocence

Innocent until proven guilty Federal law Criminal Code Act 1995 (Cth):

Section 13.1 – ‘The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged’

Human rights International Covenant on Civil and Political

Rights (ICCPR) Article 14(2) – ‘Everyone charged with a criminal

offence shall have the right to be presumed innocent until proved guilty according to law’

Mens Rea and Actus Reus

Mens rea – guilty mind; meant to do it Actus reus – guilty act; physical performance of

the act

Are there crimes if you don’t mean to do it?

Strict Liability Offences

Offences that do not allow a person to use an excuse to escape conviction

Minor in nature Eg. Speeding

It is not necessary to prove mens rea – proof of voluntary actus reus is enough Eg. Speed camera

Can only be successfully defended if the accused proves the act did not occur

Onus of Proof Onus of Proof – the responsibility of proving a

disputed charge or allegation Rests with prosecution

Ie. Prosecutor must prove the accused is guilty Presumption of innocence What does the defence do?

Standard of Proof Prosecution must prove their case beyond

reasonable doubt Has no actual definition; it is up to the judge,

magistrate or jury to determine what it actually means

Textbook Tasks Complete:

Ex 4.1.8 Q1-2 p131 (Extension: Q3)

Criminal Offences 5 areas of criminal law:

Offences against the person Offences against property Drug crime Motor vehicle offences Public order offences

Categorise by type Arson

Assault occasioning bodily harm

Begging in a public place

Being drunk in a public place

Bomb hoaxes

Burglary

Carnal knowledge of a child

Common assault

Dangerous operation

Driving while under the influence

Graffiti instrument

Grievous bodily harm

Imposition

Incest

Indecent treatment of a child under 16

Loitering

Manslaughter

Murder

Possession

Producing

Public nuisance

Rape

Receiving

Robbery

Sale of potentially harmful things

Serious assault

Sexual assault

Stalking

Stealing

Supplying

Threatening violence

Throwing things at a sporting event

Torture

Trafficking

Trespassing

Unlawful sodomy

Unlawful wounding

Use of motor vehicle

Wilful damage to property

AnswersMurderGrievous bodily harmAssault occasioning bodily harmTortureStalkingIncestUnlawful sodomyRapeManslaughterCommon assaultSerious assaultUnlawful woundingSexual assaultCarnal knowledge of a childIndecent treatment of a child under 16

StealingRobberyBurglaryReceivingArsonWilful damage to propertyBomb hoaxes

PossessionProducingSupplyingTrafficking

Dangerous operationDriving while under the influence

Begging in a public placeBeing drunk in a public placeGraffiti instrumentImpositionLoiteringPublic nuisanceSale of potentially harmful thingsThreatening violenceThrowing things at a sporting eventTrespassingUse of motor vehicle

Offences against the person

Drug crime

Offences against property

Public order offences

Motor vehicle offences

Offences against the person

Murder

Elements: kills another person unlawfully; intentional (mens rea and actus reus)

Mandatory sentence: life imprisonment

Legislation: CC1899 ss 300 and 302 Create dot points from your text book of anything interesting

related to murder that you read Define mandatory sentencing Is mandatory sentencing a good or bad thing, in your opinion?

Justify you choice.

ManslaughterElements: kills another person unlawfully; unintentional (actus reus, but not usually mens rea)Maximum sentence: life imprisonmentLegislation: CC1899 s 303 Notice the difference – maximum compared to

mandatory. Why would this be?

Assault (broken down into areas of assault over next slides and in textbook)

Elements: the unlaw, intentional threat of force or infliction of injury on another personMaximum sentence: varies; dependent on severity of assault and other factorsLegislation: CC1899 s 245 (definition)

Continue creating crime profiles for: Offences against the person (pp143-148) Offences against property (pp150-152) Motor vehicle offences (pp152-155) Qld drug laws (pp155-156)

Remember to add dot points of interesting information underneath each profile and to define any words you do not understand

Assignment Topics Australia should have a unified federal criminal law A victimless crime should be considered no crime at all Retribution, rehabilitation and deterrence: which is the

most effective? The age of criminal responsibility should be changed

For each one: highlight the key words Identify questions during research

Example Australia should have a unified federal criminal

law Questions could include;

How would this benefit us? How could it be detrimental? What differences are their currently in state laws

that necessitate a change? Who would benefit? How does the Constitution impact on this

possibility?

Unified Federal Law?

Criminal Code Act Compilation Act 1913 (WA)

Criminal Law Consolidation Act 1935 (SA)

Criminal Code Act 1983 (NT) Criminal Code Act

1899 (Qld)

Crimes Act 1900 (NSW)

Criminal Code 2002 (ACT)

Criminal Code Act 1924 (Tas)

Crimes Act 1958 (Vic)Crimes Act 1914 (Cth),

Criminal Code Act 1995 (Cth)

According to the Constitution, Australia is not allowed to make a federal criminal code, that is a power left to states

Model Criminal Code http://www.pcc.gov.au/uniform/crime%20(compo

site-2007)-website.pdf

http://www.lawcouncil.asn.au/lawcouncil/index.php/conferences/10-divisions/122-model-criminal-code-and-harmonisation-of-criminal-law-and-procedure

Victimless Crime An act that is illegal, but has no direct victim Examples

Prostitution Drug use Tresspassing Some traffic crimes (speeding, running a red light, etc) Public drunkenness Public nudity Suicide Gambling

Are there any here you disagree with as being ‘victimless’?

A key to this is that victimless crimes do not specifically and directly harm another person

Voluntary act How could human rights fit in with this topic?

Theories of Punishment

Punishment: the imposition of hardship in response to misconduct.

What different ways are you punished for ‘misconduct’: At home At school At work In society

Common punishments for crimes: Community service Monetary fines Forfeiture of property Restitution to victims Confinement in jail Death (not in Australia)

5 Theories of Punishment

1. DeterrenceAims to prevent people from offending or deter them from re-offendingIntended to make people choose not to do a crime because of the potential punishment2. Retribution3. Incapacitation/Societal Protection4. Reformation/Rehabilitation5. Expiation

1. Deterrence/Prevention2. RetributionCrime = benefit for offender, loss for the victimRetributive justice aims to rebalance any unjust advantage (the offender suffers a loss to right the wrong)Can help to minimise the chance of vigilante justice3. Incapacitation/Societal Protection4. Reformation/Rehabilitation5. Expiation

1. Deterrence2. Retribution3. Incapacitation/Societal ProtectionKeeps offenders away from societyIncludes: death, life in prison, transportation of life, mutilation, etcSome believe the same effect can be achieved through reformation or rahabilitation4. Reformation/Rehabilitation5. Expiation

1. Deterrence2. Retribution3. Incapacitation/Societal Protection4. Reformation/RehabilitationAims to change behaviour – no one is born as a criminal, they are a product of their circumstancesProven to be successful in young offenders5. Expiation

1. Deterrence2. Retribution3. Incapacitation/Societal Protection4. Reformation/Rehabilitation5. ExpiationRepentance = forgiveness for the offence

Unified theory Brings together multiple theories A single coherent framework No need to choose a theory, as they work

together for a wider goal

Age of Criminal Responsibility

Federally, cannot be charged wit a criminal offence if under 10

Federally, doli incapax applies between 10 and under 14 (rebuttable presumption)

All jurisdictions, except Qld, maximum age for appearance in juvenile/youth court is under 18

In Qld it is under 17

2000

Present

http://www.aic.gov.au/media_library/publications/cfi-pdf/cfi106.pdf