Essay on Criminal Law I

Submitted By kendalls111
Words: 3504
Pages: 15

Retrospective law
: cannot be convicted of an offence that was not an offence at the time committed
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”

Constructing Criminal liability
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 – 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
: 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

: 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

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 –