CRIMINAL LAW & PROCEDURE 2017
1 CHECKLIST FOR INTERPRETATION:
1. Is the term defined in the Act?
2. If not, is ordinary meaning clear?
3. Issues with constitutional validity raised?
4. Does the ordinary meaning of the word further the purpose of the Act? (Vic)
First, askà what is the mischief the offence is trying to cure? See long title / explanatory memo / policy Then à what is it the interpretation which best achieves the purpose? (Cth)
5. Does the place in the Act shed light on meaning? Structural Q – headings, footnotes… etc 6. Does the word have a technical meaning?
7. Are there relevant extrinsic materials? Explanatory memoranda, debates, response to policy…
8. Does the Human Rights Charter (Vic) interfere? à Principle of legality 9. Are CL presumptions useful? (won’t be if statute explicitly overrides them).
ELEMENTS OF AN OFFENCE:
Physical Elements (Actus Reus)
Conduct and circumstances may be combined where the
‘conduct’ cannot be isolated, i.e.) verb - ‘continued’.
Fault Elements – mental state – (Mens Rea) à irrelevant where liability is strict or absolute
Conduct
1. Voluntariness
= a uniform req. across Aus.
à Ke Kaw Teh (at 523 per Brennan J)
= incorporated in the CL principle of legality à DPP v Dover [2013] VSCA 223 [41]
• Cth Code 4.2(1): Conduct can only be a physical element if it is voluntary, and (2) is only voluntary if it is a product of the will of the person whose conduct it is.
2. Omissions Cth Code 4.3(1) may be express OR (2) implied.
à
you cannot be liable for failing to engage in conduct unless you were under a positive duty to do something Statute may imply an omission by using terms like “fails to”/ “refuses”: 4.3(b). à CL follows same approach DPP v Poniatowska [2011] HCA 43[29]Intention
• = Default conduct element unless legislation provides otherwise. (expressly in Cth Code | In CL jurisdictions, provision may be express or implied).
• C’th Code 5.2(1) “ means to engage in that conduct”
When will *unintended conduct suffice? (Cth Code):
• 3.1 (2) the law that creates the offence may provide there is NO fault element for one or more physical elements. (3)
“ ” may provide different fault elements. [mens rea = irrelevant to liability]
• 6.1 (1) if the law creating the offence provides it is one of strict liability (a) there are NO fault elements.
Results
• default element = recklessness (cf. He Kaw Teh)
Knowledge
• Awareness must be judged subjectively. Q is not whether a reasonable person would/should have known, but whether the accused knew.
Circumstances
• default element = recklessness.
• Conduct extends to “the circumstances that are an integral part of the action and which give it its character” He Kaw Teh v R (1985) 157 CLR 523, at 571.
Recklessness
• Default circumstances + results element
• key phrase: ‘probable consequence’. If death / grievous bodily harm = a probable consequence, you’re as blameworthy as you would be had it been intentional.
à R v Crabb – provides statutory definition of recklessness in Criminal code (Cth)
** Where the statute contains multiple physical elements à Here it is necessary to ask whether it was a chain of events, or self-contained conduct.
Criminal Negligence (higher threshold than in tort)
e.g.) Crimes Act (Cth) s 24 – negligently causing serious injury.
(expressly includes omission). ‘gross’ negligence.
