Topic 1 Flashcards
define a crime analyse the aims and philosophy of criminal law evaluate relationship between criminal law, morality and personal freedom understand sources of criminal law, courts and classification of offences critique the protection of individual liberties in criminal justice system synthesise and effectively communicate legal arguments
Professor Glenville Williams definition of a crime
An act, or omission or a state of affairs, which contravenes the law and which may be followed by prosecution in criminal proceedings with the attendant consequence following conviction, or punishment.
- legal positivist definition
Standards and principles of punishment
- pain/unpleasant consequences
- must be for an offence against legal rules
- must be of an actual/supposed offender for his offence
- intentionally administered by human beings other than the offender
- imposed and administered by an authority constituted by a legal system which the offence is committed against
Limitations of proceduralist definitions of a crime
- legal positivism
- focuses on objective facts about the consequences of committing a crime, not the quality of a person’s conduct or the law itself
- formal aspects over substance
- descriptive over normative
What is a substantive approach to crime
- looks at the inherent nature of the act as a public wrong, rather than on the legal procedures or processes involved in prosecuting it
- attack on individuals is an attack on the community
often leads to questions like who makes legislative decisions and the values these are based on
Justifications for criminalisation
- Prevention of harm
- vindication of moral values
- expression of legitimate public concern
Utilitarian approach to punishment
- focus on maximising societal wellbeing
justify punishment based on its ability to deter, rehabilitate and protect - forward looking
Retributive approach to punishment
- requires punishment to be inflicted even though it would serve no useful purpose beyond itself
- emphasis on moral culpability
- backward looking
- ‘eye for an eye’
Differences between deterrence and incapacitation
- incapacitation not concerned with the offender as a rational agent seeking to service their own interests
- instead, offender treated as a danger that must be contained
Limitations of incapacitation
- hard to tell what a just sentence is
- s 6D of the Sentencing Act 1991 (Vic) permits disproportionately long sentences on offenders to protect the community
- punishment for what they might do, not what they have done
Benthem’s theory of deterrence
Through his logic, can be argued that no punishment should be inflicted if there is no chance of it having a useful effect
What is reform?
- a deeper sense of rehabilitation
- doesn’t just modify outward behaviour, but also views and attitudes
Limitations of rehabilitation and reform
- sometimes sees crime as a social disease needing to be cured – what sanctions are curative?
- whether rehab/reform can actually be achieved
Difference between denunciation and censure
- Censure is communication addressed to the offender and seeks to elicit a response from them
Purposes of punishment/sanctions
- Deterrence
- Rehabilitation and reform
- Denunciation and censure
- Retribution
- incapacitation and protection
- accountability and recognition of the harm done
- replaces private vengeance
Substantive nature of criminal offences
- offences against the person (fatal and non-fatal)
- property offences
- drug offences
- federal telecommunications offences
- regulatory offences
Who can commit crimes?
- only ‘legal persons’ who can perform mental/physical acts in the exercise of a choice to do or refrain from doing them
- upon turning 10 (in Aus, except for ACT) children theoretically become capable of committing a crime
Presumption of doli incapax
- ‘incapable of evil’
- common law that requires that until turning 14, must be shown that as well as having the appropriate state of mind for the crime, they also knew it was wrong
Rebuttals to the presumption of doli incapax
- rebutted if pros can prove the child understood what they did (or omitted to do) was ‘seriously wrong’ and not merely naughty
- consider age of the child
- must be proved by evidence, not merely that they committed the act
- inferences from conduct surrounding the act
Presumption of sanity and fitness to plead
- persons presumed to be capable of committing a crime unless they clearly lack personhood
- def needs to show on the balance of probabilities that the accused cannot be held criminally responsible for their actions and should be detained in a hospital
Corporations and crimes
- corporations are legal persons, can be convicted of crimes
- corporation is liable if it can be proven the criminal acts were the acts of the corporation
- intention, knowledge or recklessness of a corporation shown by proving a corporate culture that expressly/implicitly allowed/permitted the offence
- cannot be imprisoned
Sovereigns, elected leaders and diplomats, and crimes
- the reigning sovereign can’t be tried for a crime, nor can their representatives
- foreign sovereigns subject to Aus crim processes and extradition
- diplomats immune to pros
Chronological criminal trial process
- judge explains processes and tasks to the jury
- prosecution’s opening address
- accused may respond
- prosecution presents evidence (examination-in-chief), accused can then cross-examine, process repeats for each witness
(- accused can argue the prosecution has not presented enough evidence for a verdict) - closing addresses to jury
judge directs jury to relevant laws, how evidence relates, steps to reach a verdict - jury deliberates
- reaches a verdict
- plea hearing
- appeal can be made
Infringement notices
- form of prosecution
- usually for minor criminal offences (tickets, speeding)
- ultra-summary process (officer issuing the notice acts as a witness, prosecutor, judge, and sentences)
s 27 of the Criminal Procedure Act 2009 (Vic)
Summary Offences
- summary offences to be heard and determined summarily
s 28 of the Criminal Procedure Act 2009 (Vic)
Indictable offences that may be heard and determined summarily
- level 5 or 6 offences punishable by imprisonment of less than 10 years or a fine not exceeding 1200 penalty units
s 29 of the Criminal Procedure Act 2009 (Vic)
When an indictable offence can be heard and determined summarily
- court considers seriousness and adequacy of available sentences
- accused consents
s 30 of the Criminal Procedure Act 2009 (Vic)
Procedure for indictable offences that may be heard and determined summarily
- applies at any time before MC commits person to trial
- if an application is made before evidence is heard, the MC may ask to pros/informant to provide an outline of the pros evidence and any other relevant info
s 113 of the Sentencing Act 1991 (Vic)
Maximum term of imprisonment for indictable offence heard and determined summarily
- 2 years
s 113A of the Sentencing Act 1991 (Vic)
Maximum term of imprisonment for summary offence
- 2 years
s 113B of the Sentencing Act 1991 (Vic)
Maximum cumulative term of imprisonment imposable by Magistrate’s Court
- no more than 5 years, unless expressly provided in an Act
Benefits of plea negotiations
- quick resolutions (in Vic County and SCs in 2019-20, 77.6% of all matters finalised by a plea of guilty, and 87% of those were due to plea negotiations)
- avoid risk of being convicted of a more serious charge
- sentence discounts for guilty pleas
- saves stress/trauma for victims
Weaknesses of plea negotiations
- inappropriate pressure to plead guilty
- may not account for victims
- lack of transparency
How are individual and collective interests balanced
- Rules of proof
- presumption of innocence
- principles of legality
- principles of fairness
- equality before the law
s 5 of the Charter
Human rights in this Charter in addition to other rights and freedoms
- rights outside of this not to be abrogated or limited just because they’re not included/only partly included
s 10 of the Charter
Protection from torture and cruel, inhuman or degrading treatment
s 13 of the Charter
Privacy and reputation
s 20 of the Charter
Property rights
s 21 of the Charter
Right to liberty and security of person
s 22 of the Charter
Humane treatment when deprived of liberty
s 24 of the Charter
Fair hearing
s 25 of the Charter
Rights in criminal proceedings
Examples:
(1) presumption of innocence
(2)(a) to be informed about the reason for the charge
(2)(c) to be tried without unreasonable delay
s 36 of the Charter
Declaration of inconsistent interpretation
(1)(a) has to be in the SC
(5) doesn’t affect the validity of the provision
R v Brown
Views of Devlin
Views of Hart
Views of John Stuart Mill
