Crime – Exam Notes
Textbook – Chapter One: Structure of Criminal Law
QLD and WA share common heritage of criminal law based on the criminal code drafted by Sir Samuel Griffith, Chief Justice of QLD and the first Chief Justice of the High Court. The Criminal Code Act 1899 (QLD) was consequently enacted.
Nature of Criminal Law and Criminal Responsibility: Criminal law involves the use of penal sanctions to enforce prohibitions, which the State imposes on conduct.
− ‘Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the state’ – Lord Atkin
Criminal laws purpose goes beyond mere regulation of behaviour - Mala Prohibita: are wrong because they are legally prohibited - Mala in se: are legally prohibited because they are wrong
Constitutional and Territorial Issues: Criminal law extend to its territorial
boundaries, problems occur when the offence in question comprises of a number of acts or events across states and territories. As long as one element of an offence occurs within territorial boundaries of the state, it will have jurisdiction.
The Commonwealth Criminal Code covers various matters;
• Criminal responsibility for Cth offences
• Offences against Cth government or Cth property or personnel
• Offences committed by or against Australians overseas
• Terrorism
• Crimes against humanity and war crimes
• Drug crimes
Two traditions of Australian Criminal Law
• Common Law – Judge made law
• Statute – Government/parliament made law (Government will override the judge made law)
QLD is a ‘code jurisdiction’ following the enactment of the criminal code, other jurisdictions such as NSW are still common law jurisdictions.
Difference between Common Law and Code
• Common Law – Criminal Responsibility
o Offender must have been aware of what he or she was doing o Conduct must have been intentional or at least reckless o Act must be accompanied by mens rea (guilty mind)
o Inadvertent negligence may be sufficient for civil not criminal
• The Criminal Code – Criminal Responsibility o Doing and act or omitting to do an act o Without authority, excuse or justification
o Is the general threshold of criminal responsibility
§ Meaning inadvertent negligence can, for may offences, be an appropriate measure of fault for criminal liability
§ Immaterial whether accused intended to cause a particular result unless intent is expressly declared to be an element of the offence (Code s23(2))
Interpretation of criminal legislation and codes: In code jurisdictions courts insisted codification makes a break from common law, common law should not unduly influence interpretation of statutory provisions.
• Codes should be interpreted in accordance with the ordinary meaning and without presumption that previous common law was intended to be maintained – Brennan v R
• Instances where courts have invoked common law as an aid in interpretation of the codes – current view – is that resorting to common law is appropriate only where language of the code is ambiguous or has technical meaning, such as meaning acquired from common law – Stuart v R
o Example is the word ‘wilfully’ and ‘provocation’ as they were ambiguous or had technical meaning – but must be contemporary common law – not common law at the time of codification Classification of Offences – Code Section Three
• Indictable Offences: More serious heard in district or supreme court
• Simple Offences: Magistrates court, summarily heard
• Regulatory – Regulatory offences act (1980) covers these Burden of Proof
There are three fundamental principles that govern the trial of anyone accused (not expressly stated in the Codes)
1. Presumption of Innocence: Unless they have pleaded guilty or the charge is proved
2. Burden of Proof: must prove case against accused, if not then the presumption of innocence until proven guilty
3. Standard of proof: the standard the prosecution (in most cases) must discharge, in proving every element of the charge – it is beyond reasonable doubt
Woolmington v DPP [1935] AC 462 – House of Lords established that the prosecution ordinarily carries burden of proof with respect to all substantive elements of an offence.
• R v Mullen (1938) 59 CLR 124 – applied this principle to the Code
Beyond Reasonable Doubt: In Woolmington and Mullen – location of burden was on prosecution. Its quantum ‘beyond reasonable doubt’ means practical or virtual certainty rather then absolute – Gonclaves v R
- Prosecution must prove all elements and must disprove matters of exculpation which accused may raise – beyond reasonable doubt
Reversal of Burden of Proof (or Persuasive Burden)
Woolmington Principle is subject to statutory exceptions where the burden of proof is reversed, examples;
- Presumption of Sanity is an example; accused pleasing insanity must proved by defence (ss26-27)
- Diminished Responsibility proved by accused under s304
- ss210(5), 215(5) – reasonable belief that sexual partner is 16 years or above When burden is on the accused to prove a matter it is to be discharged on a lower standard of proof – balance of probabilities
Evidentiary Burden (Evidential Burden)
Prosecutions ordinarily carry the evidentiary burden to put certain matters in issue as well as the burden of proof (or persuasive burden). This is not a burden to prove anything, but rather to put certain matters into issue. Difference between
evidentiary and persuasive;
• Jury is responsible for making determinations of fact with respect to those matters which have been put in issue by evidence
• Judge is to decide what is in issue – if evidentiary burden is reached as a matter of law
• Prosecutions evidence does not directly or inferentially support all aspects of a case the judge withdraws the issue from jury
Evidentiary Burden is easier to discharge then the persuasive burden of proof – simply need to show some evidence warranting attention of the jury. Can like persuasive burden be reversed.
- Accused carries evidentiary burden with respect to all matters of mental impairment (Intoxication e.g.) and all matters of justification or excuse (e.g.
self defence or duress) – R v Menniti (1985)
- In determining whether evidentiary burden has been discharged judge should take the evidence at its most favourable to the defendant – Braysich v R (2011)
Cases
Woolmington v DPP [1935] AC 462
Authority for prosecution ordinarily having the burden of proof
• Created the principle that the prosecution ordinarily carries the burden of proof with respect to all substantial elements of an offence. Judgement at 481-1;
o ‘The principle that the prosecution must prove guilt of prisoner is part of common law of England and no attempt to whittle it down can be entertained’
• Principle is subject to statutory exceptions whereby the burden is reversed
• HC followed this principle in R v Mullen (1938) 59 CLR 124 Facts
• 21 year old man shot 17 year old wife as she left to live with her mother
• Claimed it was an accident as he intended to threaten to shoot himself to scare her
• Found Guilty
• Appealed – dismissed by multiple courts
• Appeal was taken to house of lords by Attorney General as it was an important topic – judge in summing up said defence should have proved himself innocent – rather then prosecution proving beyond reasonable doubt
o House of Lords corrected this creating the principle above R v Mullen (1938) 59 CLR 124
Higher authority for the Woolmington principle – applied by the HC to the QLD code Facts
• Charged with wilful murder of Brown
• Pleaded not guilty
• Defence was that Brown was accidentally shot in course of struggle
• Was convicted but appealed
• Appealed arguing the principle in Woolmington – that jury must known the onus is on the crown not on the defence but appeal was dismissed
R v Singh [2012] QCA 130
• More recent affirmation of Woolmington principle Facts
• Judge mislead the jury so appeal required to right injustice – argument used was there was misdirection by the judge
• Argued that the defence satisfied evidentiary onus of mistake of fact under s24 that the judge should have allowed it to be considered by the jury and prosecution are to negative mistake of fact beyond reasonable doubt
• Appeal dismissed – no evidence to show s24 should have been left open to the jury
R v Pangilinan [2001] 1 Qd R 56
• Judge should leave the issue to the jury if in the least doubt whether evidence is sufficient
• Provocation/self defence case
• Established that the evidentiary burden and persuasive burden (on balance of probabilities) is on the accused in the case of provocation
Facts
• Accused of four offences – murder, GBH, 2 wounds Ground of appeal
• Judge erred in failing to permit jury to consider defence of self defence s271(1), s271(2)
• Erred in excluding evidence of statements
• Judge ought to have directed jury on issues of provocation and mistake
• Ignorance by trial lawyers who advised self defence was raised by Crowns evidence – not necessary for appellant to raise this issue for consideration by jury
• Appeal was allowed
Week Two – Course of Criminal Justice Process
There are expectations to the proposition that the text code is the only source one needs to consult.
The code is optimistic that all could be condensed into a single document with words having such clarity that we don't need to master all the detail in previous common law. So there are rules for interpreting code;
- Interpreted by looking at words themselves not as a parliamentary enactment of common law
- To resolve ambiguity can look outside the code
- Appeals can be brought when courts have ‘glossed’ words to make them more comprehensible
Cases
R v RK, LK (2010) CLR 177 Ground for appeal
• Erred in interpreting s115 of the code – in relation to being guilty of conspiracy to commit an offence
• Paragraphs 96-96 – ‘interpretation of the code’
o Chapter two of the code is expressed to codify general principles of criminal responsibility under laws of the commonwealth
o Main issue is whether it is possible to have regard to case law and previous/prior statutes that supersede the code
• Spigelman CJ – added observations of Brennan J in Boughey v the Queen;
meaning of words and phrases to be found in code is controlled by context in which they are found, but when context does not exclude common law principles which particular phases impliedly imparts reference to those common law principles is ‘both permissible and required’
• Spigelman interpretation considers legislative history and extrinsic material Discussion of Interpretation – can use prior legislative material, extrinsic material and common law as it is permissible and required
R v Rollason and Jenkins; Ex parte Attorney General [2008] 1 Qd R 85
• Mellifent v Attorney General (QLD)
o Argument that it is not legitimate to look at antecedent common law for purpose of interpreting code unless it appears that relevant provisions in code is ambiguous – Stuart v Queen (1974)
• Ambiguity must appear from provisions of statute
o Not permissible to resort to antecedent common law to create an ambiguity
o Nor is it permissible to resort to extrinsic materials to create an ambiguity
Not legitimate to look at prior statute and extrinsic materials and common law to create an ambiguity – only look if there is a clear ambiguity
Concept of an Offence: Code in section two provides the definition ‘act or omission which renders the person doing the act or making the omission liable to punishment is called an offence’
• Start of proceeding: Three ways alleged offender brought to court o Arresting – under police powers and responsibility acts o Issue a notice to appear
o Issue a complaint and summons (justice act)
• Early proceedings: Simple Offences (summary) and Indictable Offences o Bail and preliminary hearings
o Trial o Sentence
o Indictable - Have committal hearing in lower courts to determine If there is enough evidence and if DPP wants to proceed first
• Trial itself:
o Accused called upon to plead – arraignment
§ 80-90% plead guilty
o Once pleaded not guilty – jury is empanelled (Jury Act 1995) o Prosecution open case – close case
o Defence open their case and close
o Judge sums up to jury – facts, laws and arguments o Jury sent to consider verdict and deliver verdict o Sentencing
• Appeals: if convicted by magistrates goes to district court then to court of appeals then to high court
Week Three – Chapter Five of the Criminal Code: Criminal Responsibility
Chapter five of the code separates actus reus from mens rea – meaning the criminal code
