Essay on Criminal Law I

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LEGAL PRINCIPLES:
Retrospective law
: cannot be convicted of an offence that was not an offence at the time committed however:
Transitional provision : specific provisions within the legislation may dictate otherwise – eg. Criminal Code 2008: charged under “old” offences but sentenced in respect to Code.

Commonwealth/ State
: Commonwealth able to legis. exclusively in regard to specific issues eg. s 51 (Const.) –currency
: can be both –importation of drugs – Common.; possession of drugs – State
: s 109 (Const.) where inconsistency – Common. prevails

International Obligations
: some states have established Bill of Rights – Federal govt. has est. consultation process
: signatory to treaties – only take effect if enacted

Principle of Certainty at Strict Interpretation : principle of “maximum certainty” – law should be as clear as possible – however: : where there is ambiguity – should be interpreted in favor of the accused

Relevance of cases from different jurisdictions : note the relative weight of cases from different jurisdictions : binding – Western Australia : High Court – carry the greatest weight : if no case law available within Australia – able to seek from other jurisdictions – Canada, New Zealand

Summary/ indictable offences : summary – minor offence – Courts of Summary Jurisdiction – Magistrates Court
: indictable – major/ serious offence – only triable by a higher court (District or Supreme) – heard with judge and jury
: provisions allow stand alone where approved by prosecution and defense
: numerous able to be tried both ways – often tried as summary – conviction/ penalty less for summary offence – trend continued in s 5 CC – result of calls for “greater efficiency”

CRIMINAL OFFENCES:
Constructing Criminal liability : HARM + BLAME = CRIMINAL RESPONSIBILITY
1. Examine the offence definition and establish the physical (harm) element
2. Examine the offence definition for the fault element (the mental/ blame) element – not all offences have a positive mental elements such as knowledge or intent – often inferred mental element – R v Hutchinson [2003] WASCA 323 – not required to know the girl was underage
3. Consider the general principles / defenses
ONUS/ STANDARD OF PROOF
: onus – prosecution – required to prove to the standard of proof, criminal: beyond a reasonable doubt; civil: balance of probabilities, the physical/ fault element through admissible evidence
: defense – required to prove defense on the “balance of probabilities” - alert the jury of the defense
: prosecution required to disprove the defense “beyond a reasonable doubt”
: INSANITY – onus to prove the defense is held with the defense – assumption of insanity – until proven otherwise
Proof
: essential component – what can be proved through legally admissible evidence : guilty: on the admissible evidence we find the case against A proved.
: eg. Mallard – accused of murder – gave his confession of the murder under the influence of marijuana – ruled inadmissible by the HC – acquitted

Defenses : often imported by the use of the word “unlawful” : apply to all offences – even where unlawful not used
: eg. Emergency: s 25(2) – able to be defended for circumstance of sudden or extraordinary emergency – where the response is both necessary and reasonable – est. R v Dudley and Stephens (1884) – emergency is not a defense for murder

HOMICIDE
Variety of offences – murder, manslaughter, attempted murder, aiding suicide etc.
1. When does human life come into existence – intersection between abortion/ murder
a. S 269 – defines when a child is a person capable being killed for homicide offences – must completely be proceeded from the mother in a living state– whether or not the navel string has been cut
b. R v Martin – domestic dispute – A stabbed V – V is 28 weeks pregnant – serious wounds to lower back – no direct damage to fetus – effects the blood supply to the fetus
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