Lecture 3

• Recently we looked at how to classify law: international law v national law, including sources of international law, legal 'families' or 'traditions', and the main differences between common law and civil law, three meanings of the term 'common law', and different branches of law within the Australian legal system
• Purposes of the Criminal Justice System (CJS)

  • Instrumental or utilitarian (future-oriented policies, practices evaluated by their consequences - crime prevention, treatment, and crime reduction)
  • Symbolic or non-utilitarian (backward-oriented, moral principles - policies and practices to reinforce collective understanding of right and wrong)
• Crimes and criminals are societal definitions (and labels)
• Four elements to found criminal liability (under our statute law, Western Australia)

  • Legal capacity to commit a criminal offence
  • Presence of actus reus (criminal act)
  • Presence of mens rea (criminal mind)
  • Absence of a defence (eg, provocation (self-defence), duress, emergency, etc)
• Legal capacity


  What is meant by 'legal capacity'?
• Corporations would have legal capacity to commit a crime
• Actus reus


  Identifies the conduct the criminal law prohibits; also called the physical element of the crime
• Actus reus can be an act or failure to act (omission)
• Common law was generally reluctant to ground a crime in an omission (eg. non-recognition of duty to rescue)
• Now, legislation may create crimes of omission, but must define a legal duty to act, where failure to act amounts to a criminal offence
• Actus reus sometimes may be neither an act nor an omission – so-called situational offence (eg. pub licensee where underage drinking occurs)
• Actus reus must be voluntary (conscious or willed)

  However, actus reus does not require the person understood the consequences of their act
• Examples of involuntariness


  • Muscle spasm or unwilled body movement, acts done while asleep, impaired consciousness, gross intoxication
• Acts under duress of threats are still regarded as voluntary – but duress can be introduced as a defence
• Prosecution (State) is entitled to presume acts were voluntary so defendant has to introduce evidence that act was involuntary; once defence has introduced credible evidence, prosecution must then prove voluntariness beyond reasonable doubt
• Mens rea


  Usually subjective: defendant must intend, or be reckless to (aware of risk but carried on regardless), the consequences of their act
• Strict liability


  Once you have committed the act, you are guilty unless there is an honest and reasonable mistake of fact
• Absolute liability


  Once you have committed the act, you are guilty regardless of mental state, including mistake of fact
• Courts are reluctant to interpret laws as imposing strict criminal liability
• Strict liability offences lack the mens rea element – the presumption of mens rea is displaced (by law)
• Absolute liability offences require only the preparation of the actus reus, and exclude the defence of honest and reasonable mistake of fact
• General defences are available for strict and absolute liability offences; eg, necessity, and duress (unless expressly excluded by law)
• Harsh enforcement of laws for certain groups, and too lax enforcement of laws for other groups can lead to injustice in the criminal justice system
• Zero tolerance policing – strict enforcement of minor crimes – public drunkenness, offensive language, disorderly behaviour in public
• Indigenous young offenders appear to be much less likely to be diverted than their non-Indigenous counterparts
• In the criminal justice system, different agencies have different aims which sometimes conflict
• The failure of the police to properly assess the reliability of confessional material, and instead focusing on advancing the reliability of the confessions, can lead to wrongful convictions
• Courts apply discretion in how they treat different people, and should consider whether their background should be taken into account, and whether like cases should be treated the same
• Stare decisis ('let the decision stand') is the doctrine of Precedent


  It means that 'like cases are decided alike'
• Where a court has decided a case in a particular way, subsequent cases involving similar facts should be decided in the same way
• Ratio decidendi


  The reason for a decision, which is binding
• Obiter dicta


  Other statements in a case, which are not binding, but only persuasive
• Precedents do not lose their force by lapse of time
• Courts may depart from a previous decision if it was done negligently, or if it is out of step with the proper exposition and development of the law
• Decisions of courts in a different hierarchy (including overseas courts), or lower in the same hierarchy are persuasive only; not binding
• Courts are generally not bound by their own decisions, but will only depart from them with reluctance
• The relevance of a court decision depends on the superiority of the court, the applicable jurisdiction, and the similarity of the law
• The Magistrates Court has original (first instance, trial) jurisdiction for criminal and civil matters, with limits on the seriousness of offences and the monetary value of claims
• The District Court has original jurisdiction for more serious criminal offences and higher value civil claims
• The Supreme Court of Western Australia has original and appellate jurisdiction, including hearing appeals from the Magistrates Court and District Court