LAWS1206 Lecture 1: Crim lecture notes
Week 1
Constructing the Criminal Law, Indigenous People and the Criminal Justice System, Principles of Criminal
Responsibility
• Ryan v The Queen (1967) 121 CLR 205 (extract, Week 2 Lect One Cases)
• Jiminez v The Queen (1992) 173 CLR 572 (extract, Week 2 Lect One Cases)
• R v Miller [1983] 1 All ER 978 (extract, Week 2 Lect One Cases)
• Crimes Act 1900 (NSW), Part 1A; Part 11A, ss 428A-428H; Summary Offences Act 1988 (NSW), ss
4 & 4A.
Purpose of punishment
(1) protection of society
(2) deterrence of the offender
(3) Deterrence of others who might be tempted to offend,
(4) Retribution
(5) Reform
Veen v R (No 2) (1988) 164 CLR 456 – “…protection of society, deterrence of the offender and of others
who might be tempted to offend, retribution and reform…” 476.
HC Majority: Life sentence was proportionate to the crime and did not involve an extension merely to
protect society from Veen: 472.
Dean J in dissent: preventive detention, disproportionate to the crime: 495 READ.
Retribution:
‘[T]he retributive theory of punishment states that punishment is an appropriate moral response to the
voluntary commission of an offence and should be imposed regardless of its effects.’
Same Crime, Same Time: Sentencing of Federal Offenders [2006] ALRC 103 [4.2]
•The offender deserves punishment.
•Why? Essentially because they chose to offend?
•Rests on the assumption of free will?
•To what extent was Bobby Veen exercising free will?
•To what extent was his path to offending determined by his life experiences as a child?
•How should disadvantage be taken into account? Moral culpability?
•Bugmy v The Queen (2013) 249 CLR 571, 594-595.
Utilitarianism:
‘The utilitarian theory of punishment states that punishment is justified because its beneficial effects
outweigh its detrimental effects.’
Crimes (Sentencing) Act 2005 (ACT)
s7(1) court may impose a sentence ... for 1 or more of the following purposes:
(a) to ensure that the offender is adequately punished...
(b) to prevent crime by deterring the offender and other people
(c) to protect the community from the offender;
(d) to promote the rehabilitation of the offender;
(e) to make the offender accountable...
(f) to denounce the conduct of the offender;
(g) to recognise the harm done to the victim ... and ...community
Criminal Responsibility, Proving an Offence at Trial and Element Analysis
Criminalisation in critical perspective – What makes a crime a crime?
• “Crime is simply whatever the law-makers (legislatures or courts) at a particular time have decided is
punishable as a crime”. – because the state says so
• Historically contingent
find more resources at oneclass.com
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• Harm prevention v Individual liberty
• Ashworth’s description of a crime. What is distinctive about the criminal law is:
o Its function: public censure and punishment;
o Its method of enforcement: enforced by public authorities
o Its proceedings and protections: a crime imports certain proceedings and protections to
safeguard defendants;
o Its consequences: only commission of a crime can lead to consequences as severe as
deprivation of liberty.
• Shaw v DPP
Jurisdiction - What law applies? Common law, Acts and Codes.
• The rule of law: no person is above the law; every person is subject to these laws without exception,
thus ensuring equality before the law
• Ward v The Queen (1980) 142 CLR 308
o Shot across the border from Vic into NSW
o Found guilty of murder in Vic – appealed
o Diminished responsibility available in NSW
o The ‘terminatory theory’ (B&McS p 100ff)
• 10C Crime Act 1900 (NSW) Extension of offences if there is a geographical nexus
The Trial……and basic principles of criminal responsibility.
• Fair trial principle & Equality
o Right to a fair trial – S21 Human Rights Act 2004 (ACT); Article 14(1) ICCPR
o Can there be a fair trial without a lawyer? Dietrich v The Queen
• The accusatorial process:
o State v Individual
• Presumption of innocence
o Woolmington v DPP: The trial judge directed the jury that Woolmington was presumed in
law to be guilty of the murder unless he could satisfy the jury that his wife’s death was due to
accident.
o The ‘Golden thread’
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find more resources at oneclass.com
• Burden (onus) and standard of proof
• Physical and fault elements of an offence (actus reus and mens rea)
Burden and Standard of Proof.
• “beyond reasonable doubt”
• Reasonable doubt = It is a doubt which the tribunal of fact entertains in the circumstances (Green v
The Queen (1971) 126 CLR 28 at 32-33); “attempts to substitute other expressions have never
prospered.” (Ferguson v The Queen [1979] 1 WLR 94 at 99)
Using authority
• NSW – Common Law: The prosecution bears the burden of proving each and every element of the
offence beyond a reasonable doubt: Woolmington.
• ACT – Criminal Code Sections Apply: The prosecution bears the burden of proving each and
every element of the offence beyond a reasonable doubt: s 56 & 57 Criminal Code (ACT)
• The defence may have an evidential burden
o Common Law: “The accused bears an evidentiary onus to point to or to produce evidence …
from which it could be inferred that . . . there is at least a reasonably possibility that, for
example, the act of the accused was accidental or that it was provoked or done in self-
defence.” Youssef (1990) 50 A Crim R 1, 3.
o What happens if the evidence discloses the reasonable possibility?
o Self-defence example: “once the evidence discloses the possibility that the fatal act was done
in self-defence, a burden falls upon the prosecution to disprove the fact, that is to say, to
prove beyond reasonable doubt that the fatal act was not done in self-defence.” Zecevic v
DPP (Vic) (1987) 162 CLR 645, 657 (Wilson, Dawson & Toohey JJ)
o ACT Code provisions:
▪ s58 Evidential burden of proof—defence (2) A defendant who wishes to deny
criminal responsibility by relying on a provision of part 2.3 (Circumstances where
there is no criminal responsibility) has an evidential burden in relation to the matter.
▪ evidential burden means the burden of presenting evidence that suggests a reasonable
possibility that the matter exists or does not exist.
▪ 56 Legal burden of proof—prosecution
▪ (2) the prosecution also has the legal burden of disproving any matter in relation to
which defendant has discharged an evidential burden of proof ...
o Legal Burden of Proof on Defence in Specific Circumstances
o NSW – Common Law & Statute: Legal burden of proving defences in defined
circumstance on the balance of probabilities: ie Insanity and Substantial Impairment by
abnormality of mind.
o ACT - Criminal Code
▪ s59 Legal burden of proof—defence
▪ A burden of proof that a law imposes on the defendant is a legal burden only if the
law expressly—
▪ (a) provides ...
▪ (b) requires the defendant to prove the matter; or
▪ (c) creates a presumption that the matter exists ...
▪ 60 Standard of proof—defence
▪ A legal burden of proof on the defendant must be discharged on the balance of
probabilities.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Constructing the criminal law, indigenous people and the criminal justice system, principles of criminal. Purpose of punishment (1) protection of society (2) deterrence of the offender (3) deterrence of others who might be tempted to offend, (4) retribution (5) reform. Veen v r (no 2) (1988) 164 clr 456 protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform 476. Hc majority: life sentence was proportionate to the crime and did not involve an extension merely to protect society from veen: 472. Dean j in dissent: preventive detention, disproportionate to the crime: 495 read. [t]he retributive theory of punishment states that punishment is an appropriate moral response to the voluntary commission of an offence and should be imposed regardless of its effects. ". Moral culpability: bugmy v the queen (2013) 249 clr 571, 594-595. The utilitarian theory of punishment states that punishment is justified because its beneficial effects outweigh its detrimental effects. ".
