crystal's notes week 1

LWB238 CRIMINAL LAW NOTESSemester 1 - 2011

Week 1

Fundamentals of Criminal Law Course Notes

INTRODUCTION - Week 1

1.0 The Criminal Code Criminal law in Aus is the main matter of State jurisdiction Commonwealth constitution does not give express power to legislate re criminal law. QLD (with the exception of Commonwealth offences enacted under s 51 (xxxix) of the Constitution) is governed

by the Criminal Code (Qld), established by the Criminal Code Act 1899 (Qld), commenced of the code at 1 January 1901

Cited as "The Criminal Code", never as the Criminal Code Act 1899 and informally referred as "the Code". Other Jurisdictions with Codes – WA, Tas, NT (only WA code is similar to Qld) In all other Australian jurisdictions the criminal law is based on Common law.

1.1 Commonwealth Law - Page 2 of Kenny

s 51 of Constitution empowers Commonwealth Parliament to make laws with respect to matters that are incidental to the execution of any power vested in the parliament or in the government of the Cmth, federal judicature, or any department or officer of the Cmth

Based on various statutes – mainly Crimes Act 1914 (Cth) Involves offences against commonwealth law/property e.g. airports, social security or taxation

fraud, importing drugs, telecommunications crime Prosecuted in Qld courts by CDPP (Commonwealth director of public prosecutions The Criminal Code does not apply.

1.2 State Law Based on Criminal Code 1899 (Qld) The legislation leaves many gaps to be filled by the invocation of common law rules and principles Some offences are contained in other legislation e.g. Drugs misuse Act Simple offences are prosecuted in the Magistrates Court Indictable offences are prosecuted by the Director of Public Prosecutions in the District of Supreme

Court or may be heard summarily in the Magistrates Court

2.0 Types of Offences An offence is an act or mission that renders a person liable to punishment – s2 Criminal Code Remember that there is no necessary connection between the moral status of acts or omissions and the lawful

status of those acts or omissions. Some conduct which is arguably immoral is not unlawful – conversely, some conduct which is unlawful is arguably not immoral. Can ypou think of any examples?

2 headings: Criminal Offences and Regulatory Offences Types of offences can by crimes and misdemeanours (indictable), simple offences or regulatory offences (in

descending order of seriousness) - s3 Criminal Code Crimes and misdemeanours are indictable offences and generally can be deal with upon indictment - See Code s

3. If offence is an indictable one it can only be tried by judge or jury. However magistrate may also deal with many

indictable offences summarily (See: Code, Ch 58A). Simple and regulatory offences are dealt with summarily before a Magistrate Court - offences then are called

summary offences. Procedure governing is the Justices Act 1886 (Qld). The commission of an offence usually requires:

o The occurrence of the conduct specified in the offence description

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o The existence of any state of mind (such as intention) required to make a person criminally responsible for that conduct

o The absence of any special defence of justification or excuse which would negative criminal responsibility for the conduct

Simple offences can only be heard in the Magistrates Court Some offences, like stealing, can be dealt with either in the magistrate’s court or by judge and jury in the district

or supreme courts. Some offences, like murder, can only be dealt with by judge and jury in the Supreme court.

Classification of offences - Code s3(1)

Classification of Offences - Code s3(2)

Classification of Offences- Code s3(3)

Offences

Criminal offences Regulatory offences

Criminal offences

Simple offences Indictable offences

Indictable offences

Crimes Misdemeanours

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COMPLETE PICTURE OF CLASSIFICATION OF OFFENCES

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3.0 Some Definitions Defendant / Accused / Prisoner

Lower / Higher / Convicted Criminal Matters are never actions, but prosecutions The state prosecutes on behalf of the community at large, not just the victim

Committal proceedings preliminary hearing before a magistrate following the institution of criminal charges whereby he or she determines whether the person charged should be committed for trial or sentencing

Indictment the written document that sets out the indictable offences charges against any person and is used to commence proceedings before the courts of competent jurisdiction in Qld (namely the district and supreme courts). This follows committal. If a person is dealt with summarily for an indictable offence, an indictment is not used.

Ex Officio indictment indictment presented without a committal proceeding or where following a committal proceeding, a magistrate has refused to commit a person for trial. It is only to be used by consent of the accused and in exceptional circumstances -s561 Criminal code, Bartons Case

4.0 Complaint and Summons and Notice to Appear Below are the mechanisms used to proceed against a person for a criminal offence (otherwise than by arrest) in the Magistrates Court.

Noelle Prosequi - see s 563 CodeName given to the process whereby proceedings upon an indictment are terminated by the Crown. This is achieved by a Crown Prosecutor writing upon the indictment that the Crown will not further proceed on that indictment. The Crown has sometimes attempted to enter a nolle prosequi in order to seek that ruling under s 669A(2) on a matter in the trial. For further reference read:

R v Jell; Ex parte Attorney-General [1991] 1 Qd R 48McDermott, P, “Nolle Prosequi - The Law and Practice in Queensland” (1993) 17 Crim LJ, 319Mackenzie, G, “Section 669A(2) Criminal Code - “Appeal” or Absence of Process” (1991) 21 QLSJ 41

Nolle Prosequi S563 Criminal Code Indication by Crown Prosecutor that she or he will no longer proceed on that indictment Crown can still proceed later on another indictment – it is not an acquittal R v Jell

o Test ruling in Appeal by testing nolle prosequi. o It is up to the judge if return indictment (to ensure there is no abuse of process)

Subpoena order of the court either compelling a person to attend (ad restificandum) or compelling a thing be produced in the court (duces tecum).

Accused Formal term used to describe a person charge on indictment before the Supreme and District Courts

Defendant In the Magistrates Court the person charged is referred to as the "defendant".

Jury This is the group of 12 persons selected from the community to determine, after hearing all the evidence, whether the accused should be found guilty of or acquitted of the indictable offence / offences charged in the indictment.

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Acquittal The verdict of a jury which they find an accused person "not guilty".

5.0 INTERPRETATION OF CRIMINAL STATUTES

In He Kaw Teh (1985) 157 CLR 523, the High Court of Australia isolated general principles of statutory interpretation applicable to criminal statutes. These focus on the intention of parliament as revealed in the statutory language but with a presumption that mens rea or some mental element such as a guilty mind is required to be proved by the prosecution in addition to proof of the acts or omissions going to make up the offence. These principles apply to statutory offences that are created in addition to the general criminal law (the common law) still applying in those jurisdictions.

In contrast the Criminal Code Act 1899 (Qld) s 2 applies the provisions of the Queensland Criminal Code to oust the application of the common law in this state and with it the common law requirement of mens rea . (Be sure to listen carefully to the discussion about the role of mens rea and the so-called ‘fault elements’ as relevant to the Qld context in the Week 1 lecture). Note s.23 Code. Special rules apply to codifying statutes and require generally that no recourse be had to the pre-existing law except in confined circumstances.

Brennan v Queen (1936) 55 CLR 253 at p 263Mullen v Queen [1938] St R Qd 97Raabe v R [1985] 1 Qd R 115 (Connolly J)

The procedure Summary Trial (State offence)

Indictable offenceso Summary Trial - election to be heard before judge and jury governed by s 552A and 552B of the

Criminal Codeo Committal – magistrates court may make decision of prima facie case for Supreme/District Court

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Procedure for offences dealt with on indictment

Trial on indictment

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An Introduction to Criminal Law in QLD and WA

Chapter 1 -5 Summary:

Chapter 1: Introduction- There is no express power for Commonwealth to legislate in regards to Criminal law-S 51 of the Constitution allows the Commonwealth to legislate with matters which are incidental to the execution of any power vested in the parliament, or in the government of the Commonwealth, or in the federal judicature, or in any department or officer of the Commonwealth.

Chapter 2: The Trial CourtsIntroduction:- more serious offences tried in Supreme and District Courts and at lower level is the Magistrates Court.- Supreme Court and District Court trials are presided over by judge who determines all questions of law, while questions of fact, including the ultimate questions of guilt or innocence, are determined by jury. -Magistrate Courts constituted by stipendiary magistrate who determines all questions of law and fact without the assistance of jury however in some circumstances, may be constituted by justices of the peace. -matter dealt in Magistrate court is to be decided summarily or in summary way

The Supreme Court-Must be a Supreme Court of QLD - s 57 of the Consitution of QLD Act 2001-Divided into Office of the Chief Justice, the Trial Division and Court of Appeal-In Trial Divison - the right to trial by jury - S 203 of the Supreme Court Act 1995 and the Code (Qld) s 604, but the procedure for summary determination of non-indictable offences in the Code (Qld) s 652. -Supreme Court has all the jurisdiction for the administration of justice in Qld s 5 of Constituion of Qld Act 2001. -jurisdiction although extensive is limited to the trial of offenders who could have been deal with by the common law courts possessing criminal jurisdiction in England

District Court - s 57 of the Constitution of Queensland Act 2001, there must be a District Court of Qld-try those persons charged with indictable offences - s 60 District Court of Qld Act 1967 (Qld) (DCQA)-power is limited to those for which the maximum term of imprisonment does not exceed 14 years and to those listed in the DCQA s 61-tried before judge and jury -may deal summarily with certain non-indictable offences in circumstances set out in the Code s 651

Magistrates Court-exercise both civil (under Magistrates Courts Act 1921) and criminal jurisdiction (Justices Act 1886).-function without jury with all questions of law and fact determined by magistrate or justices of the peace constituting the court, as the case may be. -two types of jurisdiction:

1. to conduct an examination of witnesses with respect to an indictable offence to determine whether a prima facie case has been made it against person charged with an offence.- these are called preliminary inquires or committal proceedings involve analysis of the evidence to see whether there is sufficient evidence to commit the defendant before a judge and jury in the Supreme or District Court -If def pleads guilty, there will be a committal sentence to the Supreme Court/District Court whereas if evidence is insufficient, the def is discharged.

Committal Proceedings - not of judicial character- they merely determine whether the defendant should stand trial

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-Magistrate must decide whether a prima facie case exists against defendant hence he/she must determine if prosecution has adduced evidence which, if believed and unexplained would be sufficient to support a verdict of guilty.-Question is whether jury could convict not would convict.

2. Determination of Offences- has jurisdiction to hear and determine all non-indictable offences, and where specific provision is made, indictable offences

Territorial restrictions on jurisdiction -court can exercise jurisdiction with limitation that they can only enforce the laws which are applicable in the state

Relevance of state borders to jurisdiction - all acts and events which consitute an offence within the boundaries of Qld, the courts of that state will have jurisdiction: Code (Qld) s 12(1).

When an element of an offence occurs outside state border - Code (Qld) s 12(2) enables the state court to have jurisdiction provided one of the elements occurred within that state. -This provision requires that it would be an offence within the state if all the elements had occured there and it provides that it is a defence to the charge for the accused to prove that he or she did not intend that act or omission should have effect in the state. -however that section does not extend in case of offence involving killing, to the situation where the only material event which occurs in Qld is the death of the victim, where that death was caused by an act done or omitted to be done by the accused at a place not in Qld and at the time when the victim was not in that state. -Code s 13 (Qld) extends further to the capacity of a court to deal with conduct which occurs outside the state boundary. It ensures that accused, who outside of the state, aids, enables, counsels or procures anyone to commit an offence which is actually committed in that state.

-Code s 14 (Qld) provides for situation where the accused, within the state, procures another to do an act at a place outside the state.

Chapter 3: Appeals

Court of Appeal Qld - some appellate functions are carried out by DC and others by SC sitting as Court of Appeal (COA) One of the divisions of the SC - Supreme Court Act 1991 s 16 COA consists of :

1. President of COA & 2. 3 - 5 other Judges of Appeal (Supreme Court Act 1991 s 23)

subject to overriding control of the Chief Justice, the President is responsible for ensuring the orderly and expeditious exercise of the court's jurisdiction - Supreme Court Act 1991 s 13A, 16, 32.

Proceedings in COA are presided over by the most senior of judges who constitute it at given time - Supreme Court Act 1991 s 40.

Order of seniority - Chief Justice, President and then most senior judge. Decision of court is the opinion of the majority of judges present with most senior judge's opinion applying if

court is equally divided - Supreme Court Act 1991 s 41. Jurisdiction provided in Supreme Court of Queensland Act 1991 s 29 which includes any jurisdiction on it by

any other state or Commonwealth Act. Such jurisdiction is conferred by Criminal Code - Code (Qld) Ch 67.

District Court

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Appellate jurisdiction of DC in criminal matters is limited to matters which were determined in the Magistrate's Court and is exercised by DC judge sitting alone - Justices Act 1886 (Qld) s 222(1).

DC decision can be appealed by COA and DC judge may state a case for opinion of COA.

Magistrate Court

Federal Jurisdiction When magistrate is exercising federal jurisdiction, appeal lies to HC of Australia. Judiciary Act 1903 (Qld) ss 35 and 39(2)(c), HC may grant special leave to appeal from any decision of

any court or judge of the state exercising federal jurisdiction notwithstanding that the law of the state may prohibit any appeal from such court or judge.

There is no provision for direct appeals to HC by special leave or otherwise, from these lower courts when they are exercising state criminal jurisdiction

s 24(1)(c) of Federal Court of Australia Act 1976 (Cth) - FC is available as avenue of appeal from a single judge or magistrate in state court where federal jurisdiction is being exercised. However appeal will only be to the Federal Court if there is special legislation which directly selects this avenue of appeal.

State Jurisdiction - QLD Under Justices Act 1886 (Qld) s 222, an appeal lies to a DC judge against any order made in a

Magistrates Court. "Order" is defined to include any order, adjudication, grant or refusal of any application, and any

determination of whatsoever kind made by a Magistrate's court, and any refusal by Magistrates Court to hear and determine any complaint or to entertain any application made to it.

Does not include order made by justices committing defendant for trial for an indictable offence, or dismissing a charge of an indictable offence or granting or refusing to grant bail and, in the latter case, whether the court is exercising its criminal jurisdiction or conducting committal proceeding - Justices Act 1886 (Qld) s 4.

appeal lies on ground that the magistrate erred in deciding the conviction or sentence summarily where there has been conviction in summary proceedings for an indictable offence: Code (Qld) s 552.

DC Appeal to DC by right rather than by leave application must be made within one month of the decision, but this time limit may be extended -

Justices Act 1886 (Qld) ss 222(1)(a) Applicable to indictable and non-indictable offences dealt with in the MC. Non indictable offence- appeal lies following dismissal of a complaint but not available of def pleaded

guilty except where the appeal relates to sentence imposed. Indictable offences- complainant may only appeal against sentence or an order for costs and not

against the dismissal of a complaint - Justices Act 1886 (Qld) ss 222(1)(b)

Courts' Power when determining appeals Queensland - pg 24 Kenny

Appeals to DC under Justices Act s 222 - rehearing on original material before M-Court but leave may be given for fresh evidence - same act s 223.

Appeals by Attorney-General - pg 25 provided in Code s 669A and dealt by COA. no appeal against dismissal of complaint relating to an indictable offence by AG or complainant, AG

has may reserve a point of law that arose during summary proceedings, for consideration by COA after an acquittal in MC.

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Adoption of procedure to prevent continued circulation of an incorrect principle of law

Appeals from the Supreme Court and DC

Appeal as of right or by leave - pg 26 indictment trials in SC and DC, appeal lies to COA Qld - person convicted may appeal against conviction as of right on any ground involving an issue of

law alone Other situation - by leave of appellate court or by certificate of trial judge that is an appropriate case

for appeal AG can appeal against inadequacy of sentence and against an order of trial judge Leave required where appeal by person convicted is on a question of fact alone, or question of mixed

law and fact and any other ground which appears to court to be sufficient Leave also required where person convicted appeals against sentence

Appeal from acquittal on indictment No appeal lies from an acquittal on indictment

Reference of point of law by AG s 669A of Code allows AG to refer to point of law which arose at trial in DC and SC to COA for

consideration and opinion. S 668A - allows AG to refer a question of law that arises in relation to a pre-trial direction or ruling See more of 669A pg 27

Point of law reserved by trial judge s 668B judge may reserve the issue of law for consideration of COA although it lost much of

significance

Notice of Application and Time limits convicted person wishes to appeal must give notice of appeal or in those situations where leave to

appeal is required, notice of application for leave to appeal within time provided for in Code s 671 s 671 - time limit of one calendar month is provided, this time also applies to appeals by AG against

sentence. No time limit is provided for reference on a point of law by AG under s 669A Code Court has discretion to extend prescribed time limits: s 671 Code. The ultimate questions is whether it

is in the interests of justices to allow an extension. Whether discretion will be exercised in favour of the appellate will depend on factors such as:

- The adequacy of reasons given for delay- prospects of success; and- the period of time involved

After lengthy delay court requires exceptional circumstances before granting extension of time, unless refusal amounts to miscarriage of justice

Appeals against conviction grounds upon appeals - s 668E(1):

(1) The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.

Unreasonable verdict M (1994) 181 CLR 487 - pg 29

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Test usually expressed in terms of whether jury's verdict was 'unsafe or unsatisfactory.' although HC recognised that other phrases, such as 'unjust or unsafe' or 'dangerous or unsafe' have sometimes been used.

Question is one of fact which court must decide by making its own independent assessment of the evidence in determining whether, notwithstanding that there is evidence upon which jury might convict, it would nevertheless be dangerous in all the circumstances to allow the jury's verdict to stand.

question court must ask itself: 'Whether it thinks that, upon the whole of the evidence, it was open to the jury to be satisfied against reasonable doubt that the accused was guilty.

HC mindful that is not tasks of appellate court simply to substitute

Chapter 4: Classification of Offences- distinction between summary and indictable offences in s 4G and 4H of the Crimes Act 1914 (Cth). - Indictable offences (s 4G) - offences against Commonwealth punishable by period exceeding 12 months imprisonment are indictable offences unless the contrary intention appears. - Summary offences (s 4H) - against Commonwealth punishable by period not exceeding 12 months imprisonment or which are not punishable by imprisonment are summary offences unless the contrary intention appears.

- distinction for crimes and misdemeanour is that an offence which is a crime imports the consequence that the offender may be arrested without a warrant whereas a warrant is needed for a misdemeanour.

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Pre Trial Directions and rulings S590AA Criminal Code

o If the crown has presented an indictment before a court against a person, a party may apply for a direction or ruling, or a judge of the court may on his or her initiative direct the parties to attend before the court for directions or rulings, as to the conduct of the trial or any pre-trial hearing

Ruling may be as to a question of law, admissibility of evidence, joinder of accused, or joinder of charges etc.

Interpretation of Criminal Statutes R v Brennan

o The codes language ”should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law.”

Stuart v Ro Murder in Valley nightclubo Resort to common law is appropriate only where the language of the codes is ambiguous or has a

technical meaning, such as a special meaning acquired at common law. Johnson

o When the courts refer to this common law in this way, it is the contemporary common law and not the common law as it stood at the time of codification.

R v Scartho To do with criminal negligenceo Essence was that the Common law meaning should be given the same level of emphasis as the

common law in the Code. R v Raabe

o Interpreting the issue of consent to assault bodily harm under criminal code – now overruled.

Criminal Responsibility Everyone is presumed to know the law – s22(1) Criminal Code

o “Ignorance of the law does not afford an excuse…” Usually a specific state of mind is required in order to establish criminal liability, Unless there is strict liability

o Drink driving (>.05), no state of mind required He Kaw Teh

o Examines fault elements in the common lawo Concept at common law of ‘mens rea’ – the guilty mindo Mens rea – not part of the criminal code of Qld

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crystal's notes week 1

Documents

prima facie case

contrary intention appears

nolle prosequi

federal judicature

person convicted

regulatory offences

common law

kaw teh