LWZ114 Lecture 1: Law of Crime 1.1
ELEMENTS OF CRIMINAL LIABILITY, PRINCIPLES OF PUNISHMENT, STRICT LIABILITY & ATTEMPT
ELEMENTS OF CRIMINAL LIABILITY
❖ In criminal law, punishment is imposed for specific kinds of wrongdoing which are described and announced in
advance.
❖ The CCA sets out the general principles of criminal liability.
➢ It applies only to crimes against Commonwealth law.
➢ It has no direct application when an offence against South Australian law is charged.
❖ S3.1(1) CCA: An offence consists of physical elements and fault elements.
❖ S3.1(2) CCA: However the law that creates the offence may provide that there is no fault element for one or more
physical elements. (ie. Strict/absolute liability offences)
❖ Physical elements
➢ S4.1(1) CCA: A physical element of an offence may be conduct, a circumstance in which conduct occurs, or a
result of conduct.
➢ S4.1(2) CCA: Conduct means an act, an omission to perform an act, or a state of affairs.
➢ S4.2(1) CCA: Conduct can only be a physical element if it is voluntary.
▪ S4.2(2) CCA: Conduct is only voluntary if it is a product of the will of the person whose conduct it is. (ie. He
had, at the relevant time, the ability to control his conduct)
❖ Fault elements
➢ Intention
▪ S5.2(1) CCA: A person intends conduct if he means to engage in it.
▪ S5.2(2) CCA: A person intends a circumstance if he believes that it exists or will exist.
▪ S5.2(3) CCA: A person intends a result if he means to cause it or is aware that it will occur in the ordinary
course of events.
➢ Knowledge
▪ S5.3 CCA: A person has knowledge of a circumstance or result if he is aware that it exists or will exist in the
ordinary course of events.
➢ Belief
▪ Same as knowledge, but doesn’t require certainty and includes mistakes.
➢ Recklessness
▪ S5.4(1)&(2) CCA: A person is reckless if he is aware of a substantial risk that (1) the circumstance exists or
will exist, or (2) the result will occur; and having regard to his knowledge, it is unjustifiable to take the risk.
➢ Negligence
▪ S5.5 CCA: A person is negligent if (i) his conduct involves such a great falling short of the standard of care
that a reasonable person would exercise in the circumstances (Nydam), and (ii) there is such a high risk that
the physical element exists or will exist, and (iii) the conduct merits criminal punishment
BURDENS OF PROOF
❖ Presumption of innocence: The prosecution must prove guilt beyond reasonable doubt to convict the accused, subject
to the defence of insanity and statutory exception (Woolmington v DPP).
❖ Burdens of proof
➢ The prosecution bears both the evidential and persuasive burdens of proving all elements of the crime.
➢ In relation to defences, the defendant bears the evidential burden (of proving any defences) while the prosecution
bears the persuasive burden (of disproving them).
➢ Statutes sometimes shift the persuasive burden on defences to the defendant.
❖ Standard of proof
➢ Where the persuasive burden is placed on the prosecution, the prosecution must persuade the jury beyond
reasonable doubt.
➢ Where the persuasive burden is placed on the accused, the accused must persuade the jury on the balance of
probabilities (Colle).
PRINCIPLES OF PUNISHMENT
❖ The sentence can be based on:
➢ facts that established the finding of guilt
➢ personal characteristics of the offender
▪ age, character, prior crimes, employment record, marital status, health
➢ any relevant acts and circumstances
▪ remorse, plea of guilt, assistance to police, forgiveness by the victim
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
In criminal law, punishment is imposed for specific kinds of wrongdoing which are described and announced in advance. The cca sets out the general principles of criminal liability. It applies only to crimes against commonwealth law. It has no direct application when an offence against south australian law is charged. S3. 1(1) cca: an offence consists of physical elements and fault elements. S3. 1(2) cca: however the law that creates the offence may provide that there is no fault element for one or more physical elements. (ie. strict/absolute liability offences) S4. 1(1) cca: a physical element of an offence may be conduct, a circumstance in which conduct occurs, or a result of conduct. S4. 1(2) cca: conduct means an act, an omission to perform an act, or a state of affairs. Knowledge: s5. 3 cca: a person has knowledge of a circumstance or result if he is aware that it exists or will exist in the ordinary course of events.
