1.

1 The nature of crime

1.1.1 The meaning of crime

 Crime

 Definition

 An act committed or an omission of duty, injurious to the public welfare, for which punishment is
prescribed by law, imposed in a judicial proceeding usually brought in the name of the state (The
Macquarie Dictionary, 2010)

 Legal characteristics of a crime

 There must be an act, or a failure to act (an omission), which breaks the law

 The act or omission must be seen as harmful tot he whole community

 The act or omission is punishable by the state

 The state takes the person who committed the act to court, where the offence must be proved
according to the rules of criminal procedure

 Criminal law

 Involves the public, and the offender is tried by the state

 The case is between the offender and the state

 Is found in both statute and common law

 Common law

 Covers many areas of criminal law

 For e.g causation

 Play a major role in interpreting statutes

 The Commonwealth of Australia Constitution Act (the Constitution of Australia)

 Divides powers to make laws between state and federal governments

 Federal government

 Legislates for some criminal offences

 Most criminal law is state law

 The major statute in NSW is the Criminal Act 1900 (NSW)

 Lists offences and prescribes maximum penalties

 Frequently amended as types of criminal offences change

 (Statute law) Summary Offences Act 1988 (NSW)

 Mostly deals with public order offences

  (Statute law) Drug Misuse and Trafficking Act 1985 (NSW)

 Deals with drug offences

1.1.2 The elements of crime

 Two elements need to be proved before it can be said that a criminal offence has occurred and that the accused Commented [f1]:
person is criminally liable A person is generally only guilty if he or she carried out the
criminal act with a criminal state of mind
 Actus reus (the conduct of the offender)
Commented [f2]:
 Important features To be criminally liable is to be responsible under the law for
a criminal offence
 That the act or omission actually took place
Commented [f3]:
 That it was done by the accused person Failure to act

 That it was voluntary

 If a person had a muscular spasm and hit someone during the spasm, he or she would not be
acting voluntarily and so actus reus would not be proved.

 Mens rea (the mental state of the offender) Commented [f4]:

The guilty mind
 Traditionally this means a person is guilty of a crime only if he or she carried out the criminal act and
intended to do so Commented [f5]:
Actus reus
 Mens rea includes

 (Not only) the intention to commit the crime

 recklessness

 Gross negligence

 Mens rea is proved

 If the person committing the criminal act did so with one of the following states of mind:

 The intention or specific desire to commit the act or omit the duty

 Recklessness

 The person could foresee the probability of harm, but acted anyway

 Negligence

 Means that the person failed to exercise the degree of care, skill or foresight that a
reasonable person would have exercised in the same circumstances

 A very high degree of negligence

 May be enough to constitute mens rea for a criminal act

 For e.g., if a person drove a car in a highly negligent manner and killed someone,
he or she could be liable for manslaughter.