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Criminal Law11 Legal Studies
Assessment Extended Research Response (Written) 800-1,000 words Reference list and intext referencing Report format Draft: Friday Week 6 Final: Friday Week 8
Sources of Criminal Law Basic Elements of Criminal Law Criminal Offences
Against the person Against property Motor vehicles Queensland drug laws
Defences and Excuses Provocation Police Powers Criminal v Civil Law Committal and Summary Proceedings Trial by Judge and Jury Legal Representation Children as Offenders
Sentencing Contemporary Issues in Criminal Law Contemporary Cases
Patel Sica Morcombe Baden-Clay
Basic Elements of Criminal Law
Sources of Law: State Constitution Common law Statutory law Australian Constitution
Presumption of Innocence Strict Liability Offences Onus and Standard of Proof Actus reus and mens rea
Sources of Criminal Law
Queensland: Criminal Code Act 1899 (Qld) Covers most crimes Other Acts cover some areas of criminal law Criminal law exists to impose sanctions on
citizens whose conduct is considered unacceptable enough to deserve punishment by the state
Enforced by Queensland Police Service (QPS)
Other important Acts: Crime and Misconduct Act 2001 Penalties and Sentences Act 1992 Police Powers and Responsibilities Act 2000 Firearms and Offensive Weapons Act 1979 Explosives Act 1999 Prostitution Act 1999 Drugs Misuse Act 1986 Domestic and Family Violence Protection Act 1989 Transport Operations (Road Use Management) Act 1995 Offenders Probation and Parole Act 1980 Peace and Good Behaviour Act 1982
Access three of the Acts listed (www.legislation.qld.gov.au).Identify:1. The main purpose of
the Act2. Two provisions which
contain a criminal offence
Commonwealth: various federal legislation Criminal Code Act 1995 (Cth) Crimes Act 1914 (Cth) Anti-Terrorism Act 2005 (Cth)
Enforced by Australian Federal Police (AFP) Exclusive powers in Constitution
New laws are created Why?
Assaulting a pregnant woman killing an unborn child
Computer hacking Intentional transmission of serious disease Bomb hoax message Making or distributing child exploitation material Drink spiking
Find one of these new laws. Explain what changes/events have occurred in society that would warrant the addition of these laws.
Presumption of Innocence
Innocent until proven guilty Federal law Criminal Code Act 1995 (Cth):
Section 13.1 – ‘The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged’
Human rights International Covenant on Civil and Political
Rights (ICCPR) Article 14(2) – ‘Everyone charged with a criminal
offence shall have the right to be presumed innocent until proved guilty according to law’
Mens Rea and Actus Reus
Mens rea – guilty mind; meant to do it Actus reus – guilty act; physical performance of
the act
Are there crimes if you don’t mean to do it?
Strict Liability Offences
Offences that do not allow a person to use an excuse to escape conviction
Minor in nature Eg. Speeding
It is not necessary to prove mens rea – proof of voluntary actus reus is enough Eg. Speed camera
Can only be successfully defended if the accused proves the act did not occur
Onus of Proof Onus of Proof – the responsibility of proving a
disputed charge or allegation Rests with prosecution
Ie. Prosecutor must prove the accused is guilty Presumption of innocence What does the defence do?
Standard of Proof Prosecution must prove their case beyond
reasonable doubt Has no actual definition; it is up to the judge,
magistrate or jury to determine what it actually means
Textbook Tasks Complete:
Ex 4.1.8 Q1-2 p131 (Extension: Q3)
Criminal Offences 5 areas of criminal law:
Offences against the person Offences against property Drug crime Motor vehicle offences Public order offences
Categorise by type Arson
Assault occasioning bodily harm
Begging in a public place
Being drunk in a public place
Bomb hoaxes
Burglary
Carnal knowledge of a child
Common assault
Dangerous operation
Driving while under the influence
Graffiti instrument
Grievous bodily harm
Imposition
Incest
Indecent treatment of a child under 16
Loitering
Manslaughter
Murder
Possession
Producing
Public nuisance
Rape
Receiving
Robbery
Sale of potentially harmful things
Serious assault
Sexual assault
Stalking
Stealing
Supplying
Threatening violence
Throwing things at a sporting event
Torture
Trafficking
Trespassing
Unlawful sodomy
Unlawful wounding
Use of motor vehicle
Wilful damage to property
AnswersMurderGrievous bodily harmAssault occasioning bodily harmTortureStalkingIncestUnlawful sodomyRapeManslaughterCommon assaultSerious assaultUnlawful woundingSexual assaultCarnal knowledge of a childIndecent treatment of a child under 16
StealingRobberyBurglaryReceivingArsonWilful damage to propertyBomb hoaxes
PossessionProducingSupplyingTrafficking
Dangerous operationDriving while under the influence
Begging in a public placeBeing drunk in a public placeGraffiti instrumentImpositionLoiteringPublic nuisanceSale of potentially harmful thingsThreatening violenceThrowing things at a sporting eventTrespassingUse of motor vehicle
Offences against the person
Drug crime
Offences against property
Public order offences
Motor vehicle offences
Offences against the person
Murder
Elements: kills another person unlawfully; intentional (mens rea and actus reus)
Mandatory sentence: life imprisonment
Legislation: CC1899 ss 300 and 302 Create dot points from your text book of anything interesting
related to murder that you read Define mandatory sentencing Is mandatory sentencing a good or bad thing, in your opinion?
Justify you choice.
ManslaughterElements: kills another person unlawfully; unintentional (actus reus, but not usually mens rea)Maximum sentence: life imprisonmentLegislation: CC1899 s 303 Notice the difference – maximum compared to
mandatory. Why would this be?
Assault (broken down into areas of assault over next slides and in textbook)
Elements: the unlaw, intentional threat of force or infliction of injury on another personMaximum sentence: varies; dependent on severity of assault and other factorsLegislation: CC1899 s 245 (definition)
Continue creating crime profiles for: Offences against the person (pp143-148) Offences against property (pp150-152) Motor vehicle offences (pp152-155) Qld drug laws (pp155-156)
Remember to add dot points of interesting information underneath each profile and to define any words you do not understand
Assignment Topics Australia should have a unified federal criminal law A victimless crime should be considered no crime at all Retribution, rehabilitation and deterrence: which is the
most effective? The age of criminal responsibility should be changed
For each one: highlight the key words Identify questions during research
Example Australia should have a unified federal criminal
law Questions could include;
How would this benefit us? How could it be detrimental? What differences are their currently in state laws
that necessitate a change? Who would benefit? How does the Constitution impact on this
possibility?
Unified Federal Law?
Criminal Code Act Compilation Act 1913 (WA)
Criminal Law Consolidation Act 1935 (SA)
Criminal Code Act 1983 (NT) Criminal Code Act
1899 (Qld)
Crimes Act 1900 (NSW)
Criminal Code 2002 (ACT)
Criminal Code Act 1924 (Tas)
Crimes Act 1958 (Vic)Crimes Act 1914 (Cth),
Criminal Code Act 1995 (Cth)
According to the Constitution, Australia is not allowed to make a federal criminal code, that is a power left to states
Model Criminal Code http://www.pcc.gov.au/uniform/crime%20(compo
site-2007)-website.pdf
http://www.lawcouncil.asn.au/lawcouncil/index.php/conferences/10-divisions/122-model-criminal-code-and-harmonisation-of-criminal-law-and-procedure
Victimless Crime An act that is illegal, but has no direct victim Examples
Prostitution Drug use Tresspassing Some traffic crimes (speeding, running a red light, etc) Public drunkenness Public nudity Suicide Gambling
Are there any here you disagree with as being ‘victimless’?
A key to this is that victimless crimes do not specifically and directly harm another person
Voluntary act How could human rights fit in with this topic?
Theories of Punishment
Punishment: the imposition of hardship in response to misconduct.
What different ways are you punished for ‘misconduct’: At home At school At work In society
Common punishments for crimes: Community service Monetary fines Forfeiture of property Restitution to victims Confinement in jail Death (not in Australia)
5 Theories of Punishment
1. DeterrenceAims to prevent people from offending or deter them from re-offendingIntended to make people choose not to do a crime because of the potential punishment2. Retribution3. Incapacitation/Societal Protection4. Reformation/Rehabilitation5. Expiation
1. Deterrence/Prevention2. RetributionCrime = benefit for offender, loss for the victimRetributive justice aims to rebalance any unjust advantage (the offender suffers a loss to right the wrong)Can help to minimise the chance of vigilante justice3. Incapacitation/Societal Protection4. Reformation/Rehabilitation5. Expiation
1. Deterrence2. Retribution3. Incapacitation/Societal ProtectionKeeps offenders away from societyIncludes: death, life in prison, transportation of life, mutilation, etcSome believe the same effect can be achieved through reformation or rahabilitation4. Reformation/Rehabilitation5. Expiation
1. Deterrence2. Retribution3. Incapacitation/Societal Protection4. Reformation/RehabilitationAims to change behaviour – no one is born as a criminal, they are a product of their circumstancesProven to be successful in young offenders5. Expiation
1. Deterrence2. Retribution3. Incapacitation/Societal Protection4. Reformation/Rehabilitation5. ExpiationRepentance = forgiveness for the offence
Unified theory Brings together multiple theories A single coherent framework No need to choose a theory, as they work
together for a wider goal
Age of Criminal Responsibility
Federally, cannot be charged wit a criminal offence if under 10
Federally, doli incapax applies between 10 and under 14 (rebuttable presumption)
All jurisdictions, except Qld, maximum age for appearance in juvenile/youth court is under 18
In Qld it is under 17
2000
Present
http://www.aic.gov.au/media_library/publications/cfi-pdf/cfi106.pdf