Introduction to Law

What is Law?
Rules that apply to everyone that can be enforced.
Where does our law com from?
Parliament, courts, the constitution and delegated legislation
Why do we need law? Is law necessary?
1. Laws regulate society by telling us what we can do and when.
2. Laws enforce values society deems important.
3. Laws protect members of the community from harm.
4. The law provides a venue for resolution in times of conflict between individuals.
5. Laws enforce rights and gains compensation.
What are the characteristics of law?
1. Laws can be enforced.
2. Laws are accepted by the community.
3. Laws are binding on the community.
4. Laws are discoverable. ( no hidden laws, you can go out and find out about them).
5. Laws are in the public interest.
6. Laws reflect morality.

SOURCES OF LAW
COMMON LAW:
Judge made law based on Doctrine of Precedent. The system of Law used in Britain and its colonies.
Precedent: A binding decision made on a present case based on a previous court case with similar facts.
Judges are bound by the ratio decidendi which is the reason for a judgement
Judges are not bound by the obiter dictum which is a subjective comment, more personal input.

STATUTE LAW:
Also known as Legislation, or Acts of Parliament. Statute Law is made by Parliament. Eg. Native Title act (1993)

DELEGATED LEGISLATION:
Laws made by subordinate authorities (eg: Australian Post- cost of Postage).

Advantages~ more effective, quicker, saves time by allowing persons of bodies with relevant expertise to make
decisions about mundane matters etc.

Disadvantages~ laws are made by unelected officials, possibly without appropriate education or training. Law can
also be invisible and discriminatory.

SOURCES OF LAW
CONSTITUTION:
Describes how the country should be run and outlines how Power is divided and the rights it gives its citizens.
To bring together the 6 colonies in a federation (power sharing): Created a new level of govt, the
Commonwealth and set out rules for the relation between this new level (federal) and the states
(former colonies).

INTERNATIONAL LAW:
Governs the interactions between nations. If a nation breaches international law, it can be dealt with by the
international community through: Trade Embargoes, Denial of Diplomatic Recognition, Trade
Sanctions and Military Action.
THE UNITED NATIONS: acts as a global security and development organisations. The UN maintains global
peace and security. [The General Assembly, Security Council, the Economic & Social Council, the
Secretariat and the Trusteeship Council].

THE CONSTITUTIONAL SYSTEM IN AUSTRALIA

DIVISION OF POWERS: Powers are divided between the States and the Federal Government.

1/ Residual Powers: are the powers that the states retained after federation, eg police, local councils
2/ Concurrent Powers: areas over which both the states and the Commonwealth have legislative power,
eg education and health
3/ Exclusive Powers: federal parliament has exclusive power over immigration and defence.

SECTION 109- THAT WHERE A CONFLICT ARISES, COMMONWEALTH LAW PREVAILS OVER THE
STATE LAW

SEPARATION OF POWERS: Power is distributed between the 3 arms of government; that is between the
legislature, executive and the judiciary.

Executive- government responsible for putting the laws passed by the legislature into effect.

Legislature- is parliament which makes statute law

Judicial- courts which solve disputes and interpret statute law

The Court System

CRIMINAL LAW
Types of Crimes
1. Crimes Against Persons
Homicide
~ Murder
~ Manslaughter
~ Infanticide
~ Death by Reckless Driving
Assault
Sexual Assault
2. Against Property
Larceny
Breaking and Entering
Robbery
3. White Collar Crime
Tax Evasion
Computer Crime
Insider Trading
4. Crimes Against the State
Sedition
Treason

CRIMINAL LAW
Types of Crimes

5. Public Order Offences

Offences that disrupt the activity of society
6. Traffic Offences
Death By Reckless Driving
Other offences like speeding, parking etc
7. Preliminary Offences
Attempt of crime e.g. attempted murder
Conspiracy
8. Regulatory Offences
Breaking of a regulation
9. Victimless Crimes
Only harms perpetrator. eg. prostitution

SOURCES OF CRIMINAL LAW

Most criminal law is made by the state. Under the constitution the Federal Parliament does not
have specific power to make criminal law. They do however in relation to criminal laws that come
under their exclusive jurisdiction from section 51. For example importation of drugs from
overseas comes from the Customs Act 1901 (Cth).
The main sources of criminal law come from:
Statute law
made by NSW Parliament (with most under the Crimes Act) if no conflict with Commonwealth
law
Common Law
judges using their discretion, making decisions which bind because of the laws of precedence
codification: combining all law (both common and statute) into one act. Result: code law
Constitutional separation of powers
Federal Parliament doesnt have the Constitutional power to make general criminal laws, but it
does make some laws eg Customs Act over drug importation
Some states of Australia (Qld, Tasmania, W.A) have combined all their criminal law (statute /
common law) into one Act of parliament. This process is called codification or code law.

Parties to a Crime
A principal is directly involved in the commission of the crime

First Degree (the person that carries out the act)

Second Degree (assists in the commission of offences)

An accessory to the crime is a person who knows about the criminal act and provides some form
of assistance

Before the Fact (knows the crime is about to be committed)

After the Fact (knows the crime has been committed and provides assistance to the criminal)

ELEMENTS OF CRIME
Mens Rea (guilty Mind)

3 types of mens rea.

1. Intention: Person deliberately intended to commit a crime

2. Recklessness: Person was aware of the danger of their action and acted anyway.
3. Negligence: When a person fails to see the rest of their action, a risk that an ordinary person would have
seen under the same circumstances.

Actus Reus (Guilty Act)

This is the performance of a guilty act or an omission that breaks the law.

the performance (act/duty) that breaks criminal law must:

take place

be done by the accused

be voluntary In Jiminez v R, the high court held that falling asleep at a wheel is involuntary conduct. Other
examples include; being deprived of free choice and a reflex action.

in strict liability cases no mens rea needs to be proven.

Causation
The act that was performed must be the cause of the crime. The act must be ultimately responsible for the
offence.
Novus Actus Intervenes. Intervening Act:
In R v Hallet (Act of god),
The victim drowned after the accused assaulted him and left on the beach, whereby an incoming wave drowned
him. The accused argued that the victim died via the drowning (Novus Actus) and not the assault. This was
rejected by SA Supreme court arguing that the conduct of the accused was a substantial and operating cause of
death and that action of the sea would not have broken the chain of causation as it was a natural cause as
distinct from an act of god (tidal wave).
In Royall (Self- preservation),
D was charged with the murder of a woman who fell from the bathroom window of her 6 th story flat as she feared
her attacker. The high court (Mason CJ) held that her conduct was not a Novus because the accused had
induced her into a well-founded apprehension of physical harm such as to make it a natural consequence
(reasonable) that the victim would seek to escape. Therefore not only must Vs apphrehsion of harm be wellfounded, but Vs actions in trying to escape must also have been reasonably foreseeable.

In R v Pagett (Preservation of another)

D used his girlfriend as a shield to protect himself form police gunfire. D fired at police, who fired
back in self-defence and killed the girl. D argued that a 3rd party (police) had been the operating and
substantial cause of death. It was found that the police actions were involuntary and could not break
the chain of causation because it was an act of self- defence and done in execution of legal duty
and it was reasonably foreseeable.
In this case, if the police officer were a specialist target shooter who missed, resulting in death, then
it would be a Novus Actus because this is not reasonably foreseeable.
In R v Blaue (Subsequent medical treatment),
The victim was stabbed but refused a life-saving blood transfusion on religious grounds and
subsequently died. The English Court of Criminal Appeal held that the eggshell skull principle
means the whole person (mental and physical) and therefore the accused could not argue that the
chain of causation is broken because the victims religious beliefs were unreasonable.

CRIMINAL DEFENCES

Complete Defences: The defendant completely walks free

Duress
Where the defendant claims that the criminal act committed was due to threats or injury to
themselves by others. The threat can be to the defendant or to another person.
Necessity
The defendant claims that the crime committed was done to stop a more serious crime from
occurring, or to stop a more serious danger. R v Dudley and Stephens, stated that necessity
was no defence to murder.
Mental illness (Insanity)
The onus of proof for insanity lies with the defence. A person does not have the necessary
mens rea (intention).
McNaughten Case, a person is mentally insane when they cant differentiate between right or
wrong

DEFENCES
Automatism

A defence used where a person was unable to control their actions causing a criminal action to occur. A
person who has no control their bodily actions.

Accident and Error

A reasonable person in the same situation would have made the same mistake. Eg.under age sex.

Self-defence

Reasonable force can be used in the defence of oneself to protect property or to stop a serious crime from
occurring. The onus of proof lies with the prosecution who must disprove Self defence beyond reasonable
doubt. The main issue with self-defence lies in determining what is reasonable force. The accused does not
have to wait until the initial assault has commenced. In some circumstances they may act pre-emptively
where the attack is believed to be imminent. (Conlon)

DEFENCES
Consent

The defendant claims that they acted with the victims consent. The defence can either be complete, absolute
or partial. It is often used in sexual offences.

Case 1: R v BROWN (assault occasioning actual bodily harm)

Involved sado-masochistic homosexuals who consented to acts of violence towards each other. The House of
Lords found that consent was no defence, public morality and their disapproval of such conduct swayed
them. (Lord Templeman) however Lord Mustill and Slynn (in dissent) were of the opinion that criminal law
should not interfere with private personal morality.

Case 2: R v WILSON

Husband branding his initials on his wifes bum with her consent. English Court of Appeal, quashed conviction of
assault occasioning actual bodily harm, because of no aggressive intent by husband and not in public
interest to interfere in private martial affairs

Defences
Partial Defences: The defendant does not completely get off

Provocation

A defence where the accused was provoked by the victims into committing a crime. The offender looses self
control and acts out of rage. In NSW provocation is only used for murder to manslaughter.

Diminished Responsibility

The defendant acted while mentally ill or disabled and so is not entirely responsible for his or her actions.
The defendant is not mentally ill to the extent required in the defence of mental illness.

R V Desouza, a man on steroids failed in his attempt to use this defence due to roid rage.

Defences
Intoxication

A normally sane person is so affected by alcohol or other drugs that he or she did not know what he or she
was doing. Self-induced intoxication will generally not be taken into account when determining criminal
liability for murder or manslaughter but intoxication by accident or because of a prescribed drug may be
considered by the court as a defence to other crimes.
Homosexual Advance Defence

R v Thomas Green

The Criminal Process and the Role of Discretion

Lots of crimes but not all reported or investigated. Police use discretion (take action according to own judgement) to decide which
cases to investigate resource efficient. Judiciary, Judges, defence lawyers and Prosecutors also have discretion.

Most crimes are reported by citizens.

Investigation discretion used. Police have investigation powers to:

Detain and question people who they suspect has committed a crime

Search property and seize evidence that can be used in court.

Within legal limits use telephone taps and video cameras.

Arrest Crimes Act allows police to arrest person they reasonably suspect of committing a crime.
People under arrest have certain rights:

The Right to Silence

Not to be searched only with a warrant

To be released from custody if charge has not been made within reasonable time.

The right for confessions to be free and voluntary

The right for a minor to have an independent adult person present

The limited right to legal advice

Charge If police are satisfied that suspect has committed crime, can be taken to police station and charged.

Bail The guarantee given by suspects that they will appear at court later date or forfeit money. Bail Act 1978 (NSW).
-some cases, bail is granted automatically unless the person:
Was drunk or injured
Already has a conviction
Is in danger of reprisal and needs protection
Is a danger to public
The offence is too serious
Plea Guilty sentencing hearing character witnesses (to mitigate)
-Non-guilty accused held on remand (unless bail) case is defended in court verdict.
-plea bargaining: accuse agrees to plead guilty to a lesser charge.
Hearing Committal hearing evidence is presented before a magistrate to determine prima facie.
- If enough evidence trial proceeds in appropriate court.
IN COURT:
Rules of Evidence hearsay, character, opinion, leading/double Qs.
Trial Procedure prosecution must prove beyond reasonable doubt. Adversary system 2 adversaries opposing each other.
Exam in chief, Cross examination
Role of juries. Jury Act 1977 (NSW). 12 jurers chosen from a larger group those liable for discrimination removed etc, must come
to unanimous decision (if not hung jury process begins again), decide guilt.
Appeals heard in court above. Only can be based on a point of law - not discontent with outcome e.g. wrongful procedure,
misdirection of jury.

Creating Social Order

Aim of the Legal system to create order in society.

Informal things like family, school, work, religion and media also help create social order.

When these things fail criminal law provides the inducement to comply. There are other formal ways
to create social order before imprisonment:

Education people must be educated about law. Civics has been introduced as a compulsory
subject in junior levels of school. HSC Legal Studies also provides education. Govt depts issue
pamphlets etc to educate the nation on the law.

Regulation some laws exist to ensure people and environmental safety e.g. health regulations,
OH&S.

Coercion sanctions coerce people into obeying laws fear of punishment.

The Sentencing Process - accused can be found guilty by a magistrate or a jury.

The Hearing
After conviction the judge reconvenes court for the sentencing hearing:
Evidence additional evidence such as reports from psychiatrists and psychologists, character reference, standing of the accused in
the community, hearsay evidence may be used.
The role of the prosecutor in trial, role is ensure conviction. Now it is to ensure judge has all relevant info like prior convictions.
Crimes (Sentencing Procedure) Act 1999 (NSW) allows for presentation of impact on victim report.
Role of the Defence ensure accused receives most appropriate sentence.
The Victim impact.
Factors Affecting the Decision:
Purposes of punishment punishment must fit crime.
Circumstances of the Offence (Objective features) i.e. facts of the crime were weapons used?; seriousness of the crime; etc;
Circumstances of the offender (Subjective features) e.g. is the offender a minor? Single parent?
Convicted criminal or first offender? Disability? Drug user? Etc.
Aggravating and mitigating factors.
Judicial discretion and the limits of discretion unless mandatory sentencing, discretion by judges can be used.
Judicial Guidelines e.g. Crimes Act, precedents etc help keep sentence consistent.
Mandatory Sentencing
Maximum penalties

Penalties.
Types of Penalties:
Fines keep offender out of prison, but to some it may be a small price to pay and reoffend.
Bond keeps accused out of prison if person promises to behave or face a fine or imprisonment.
Probation Order form of bond where accused not imprisoned but has to regularly report to probation officer
may be conditions e.g. counselling.
Community service order offender works for a specified amount of time for the community.
Home detention Offenders stay in home electronically monitored.
Periodic Detention Periodic Detention of Prisoners Act 1981 (NSW) allows for accused to be detained over
weekends in prison.
Imprisonment most severe of all for serious crimes. The Sentencing Act 1989 (NSW) allows for truth in
sentencing, requiring convicted offenders to serve a minimum amount of time in jail without any reduction.
Imprisonment aims to deter.
Penalties no Longer Available
1.Capital Punishment abolished in NSW in 1955.
2.Corporal Punishment physical punishment such as whipping, beating etc.
3.Penalties that infringe Human Rights
4.Cruel and unusual punishment declared illegal under International Covenant on Civil and Political Rights
(ICCPR)

Post Sentencing Decisions

Security classification
-Prisoners classified according to severity of crime.
-divided into short term (release within 12 months) and long term.
-Open prison farms entitled to work-release programs, weekend leave etc.
-Min. security prisons secured by physical barrier but have more freedom than higher security.
-Medium Security
-Max Security - for inmates considered as a risk to society.
-Women held in different centres then men.
Protective Custody
-Some inmates feel they need protective custody includes:
Sex offenders against children
Those who commit crimes that appal society.
Homosexual offenders
Those with HIV/AIDS
Physically or mentally disabled prisoners.
Parole
-This is the release of prisoners from custody under certain conditions. If prisoners satisfy the parole board can be released after
min. term carried out after release they are restricted.
Dealing with International Crime
-dealt with differently than domestic crime.
-no enforceable body for International law.
ICC Replaced ad hoc tribunals.
Sanctions range from imprisonment to fines, economic sanctions.
Extradition
-the transfer of offenders from jurisdiction in which they are apprehended to the jurisdiction where the crime was committed there
must be a treaty b/n nations for extradition to occur.
-If treaty exists, country is required to give permission for extradition to occur. E.g. In 1980s Christopher Skase fled to Spain to
escape prosecution on fraud.

Enforcing the Law through Punishment.

Purposes of Punishment.
5 categories:
Rehabilitation reform offender.
Deterrence prevent or discourage criminal behaviour through
punishment.
Retribution an eye for an eye
Incapacitation most commonly imprisonment restricts freedoms and
activities of prisoner.
Redintegrative shaming shaming the perpetrator into not re committing
the crime. E.g. confronting the victim. Used a lot with young offenders.