Fundamentals+of+Criminal+Law

What is a Crime?
According to Glanville Williams crime is a 'legal wrong that can be followed by criminal proceedings and which may result in punishment'.

The unique feature of criminal offences is that criminal sanctions may be imposed for their breaches.

Walter & Williams argue that criminal conduct consists of two main elements: This has been considered a problematic view due to the existence of strict liability offences.
 * 1) that the conduct in question must be injurious to the public at large as opposed to merely being injurious to one or more individuals; and
 * 2) that the conduct must be morally blameworthy.

=Objectives of Modern Criminal Law= There are two main theories of punishment:


 * Utilitarianism:**
 * Holds the view that punishment is inherently bad due to the pain it causes the wrongdoer, but is ultimately justified because this is outweighed by the goods consequences stemming from it.
 * benefits being deterrence, incapacitation and rehabilitation


 * Retributivism:**
 * Only those who are blameworthy deserve punishment and that is the sole justification for punishment.
 * Punishment must be equivalent to the level of wrongdoing
 * punishing criminals is just in itself - it cannot be inflicted as a means of pursuing some other aim
 * often said that tribute theories are backward looking - focusing on past events to determine whether punishment is justified in contrast to utilitarianism, which is concerned only with the likely future consequences of imposing punishment.

**Goals of Sentencing**

 * Deterrence
 * Incapacitation
 * Proportionality

There is an assumption that everyone is capable of committing crimes and being held criminally responsible for those crimes. This assumption, however, is subject to several general exceptions.
The common law doctrine of //doll incapax// stated that a person under the age of seven years is incapable of committing an offence.
 * Children**

Where a child is over the age of 10, but under the age of 14 (at the time of the offence), the prosecution must prove the elements of the crime as defined by the doctrines of criminal responsibility. The prosecution must also prove that the accused knew that his or her conduct was wrong in the sense that it was in contravention of the standards which govern the behaviour of ordinary persons. This was most recently elucidated in R v ALH.

Thus, there is a rebuttable presumption at common law that a child between the ages of 10 and 14 is incapable of committing a crime. This has been codified within s127 //**Children and Young Persons Act 1989 (Vic).**//

see also **Corporations Law** Corporations have a legal status of a natural person and can incur criminal liability under certain circumstances.
 * Corporations**

**Classification of Crimes**
Summary offences are offences that are dealt with by a magistrate sitting without a jury. These are typically less serious that indictable offences and can be heard summarily.
 * Summary Offences**

Indictable offences are offences that are only triable before a judge and jury. These offences can only be heard summarily with the consent of both parties.
 * Indictable Offences**

**General Principles of Criminal Responsibility**
The general principle of criminal responsibility is that responsibility may not be attributed to a person unless he or she:
 * 1) has engaged in conduct that is forbidden by the criminal law (acts reus); and
 * 2) possesses a mental state prohibited by the law (mens rea)

**Mens Rea ("guilty or culpable mind")**
Many crimes require that the defendant must have acted with a particular state of mind. This may consist of one or more the following states of mind, depending on the statutory or common law definition of the crime:


 * Intention**
 * The defendant must have acted with the actual subjective intention of bringing about one or more the the results forbidden by the law; or
 * the defendant must have acted with the knowledge that one or more of the results forbidden were practically certain to results (R v Brown; R v Hoskin).


 * Knowledge**
 * The defendant must have acted or omitted to act while holding certain facts to be true.


 * Recklessness**
 * The defendant must have acted with knowledge (or awareness or foresight) that there was a possibility, or depending on the type of offence, a probability that some or all of the results forbidden by the crime would result from his or her conduct.


 * Belief**
 * Belief is similar to knowledge, where there is some doubt as to the existence of facts. This has been formulated as an alternative to strict actual knowledge, which is considered largely unprovable.

Actus Reus
There must be a causal connection between the act or omission and the non-mens tea elements of the crime. For an act to be regarded as voluntary it must consist of some willed muscular movement. Therefore, the actus reus does not have a minimal mental requirement.

**Temporal Coincidence**
Criminal liability will be imposed where there is a concurrence in time of a culpable mentla state and a willed act that is casually linked to the non-mens rea elements of the offence.

In R v Le Brun, the UK Court of Appeal refined the doctrine of temporal coincidence and spelled out the conditions under which two or more volitional acts or omissions may be regarded in law as one continuous act or omission:
 * 1) There must be a sequence of events that can be regarded as the same transaction, even if there is an appreciable time difference between the mens rea and fatal act or omission; and
 * 2) A chain of causation must be established between the initial voluntary act and the fatal act or omission.

**Defences**

 * Denial Defences**
 * This defence is one that asserts, based on the evidence adduced, that the prosecution has failed to prove one or more of the constituent elements of an offence with which the accused is charged.
 * Affirmative Defences**
 * This defence asserts that even if the prosecution has proven each of the elements of the offence, the accused is nontheless entitled to an acquittal because of a defence that is supported by the evidence adduced at trial.
 * Examples of an affirmative defence include defences such as provocation, self-defence, duress, necessity, insanity and diminished-responsibility.

**Incohate Crimes**
Incohate crimes are those where the mental element of the crime is not fully expressed in the conduct of the accused. These include offences in which attempts, incitement and conspiracy occur.

**Participation**
The idea of participation seeks to distinguish between the principal parties, and those that participated as accomplices. An accomplice will often be called a 'principle in the second degree'.
 * What is a secondary party?**
 * A principal in the second degree is one who is present at the scene of the crime, and though providing assistance and encouragement to the principal in the first degree, does not significantly contribute to or actually perform any portion of the actus reus of the ulterior crime.
 * An accessory before the fact is a party who provides the same type of assistance or encouragement as a principal in the second degree, but is not physically present at the scene of the crime.
 * An accessory after the fact does not provide assistance or encouragement in the actual commission of the crime, but takes affirmative steps after its completion to assist the principals in avoiding apprehension or prosecution.
 * Secondary parties are only liable to the same extent as the principal for the offences that were actually planned by the secondary parties.

**Transferred Malice**
Transferred malice occurs where an accused acts with the requisite mens rea to commit an offence against a particular person, but instead succeeds in causing the same type of harm to another person. Examples of transferred malice can be found in R v Newman, R v Hunt, R v Latimer, and R v Bocash.

**Burdens of Proof**
In criminal prosecutions, the Crown bears the onus of proving each and every element of the offences charged. That standard of proof is beyond reasonable doubt.

**"Life and** **Death"**

 * The foetus and the child**
 * Over time, questions have been raised as to whether it is possible to be guilty of murder for the death of an unborned child.
 * In R v Hutty, the court stated that a child must be "fully and completely born" and must have a "separate and independent existence" from the mother.
 * In R v West, the court suggested that doctrine of transferred malice (see Fundamentals of Criminal Law) will impose liability on a person who inflicts an injury from which a child subsequently dies even where the injury was inflicted while the child was still in the womb.
 * According to statute, where a child is killed in the womb it is an offence under s10 of the Crimes Act 1958 (Vic).


 * Death**
 * According to s41 of the Human Tissues Act 1982 (Vic), life as a human is deemed to end at the point of irreversible cessation of brain function or blood circulation.