Week 1 Tutorial Notes — Classification, Code vs Common Law, Burdens, and Early Questions

Criminal offences are classified as $ext{indictable}$ and $ext{non-indictable}$ , per the $ext{Criminal Code, Section } 3$ .
Under indictable: $ext{crimes}$ and $ext{misdemeanors}$ .
Under non-indictable: $ext{simple}$ and $ext{regulatory}$ offences.

Indictable offences are usually heard by the $ext{Supreme Court}$ .
Non-indictable offences are usually heard by the $ext{Magistrates Court}$ .
Indictable offences can be heard summarily in the Magistrates Court under §§ $552A$ to $552AB$ .

A conduct becomes criminal only if listed in the $ext{Queensland Criminal Code}$ or other legislation.
Adultery is not a criminal offence in Queensland.

Queensland is codified; the $ext{Code}$ applies first.
Common law fills gaps or clarifies ambiguity only when the Code is silent or unclear; it does not override the Code.
The introduction of the Code marked a break with the past; interpretation prioritizes the Code, using common law sparingly for gaps/technical meanings.

Queensland courts must consider the Code first; decisions from other states can be persuasive but not binding.
Binding authority comes from our own higher courts (e.g., Queensland Court of Appeal, High Court of Australia) when applicable to a Queensland case.

Crown bears the evidentiary and persuasive burden to prove the offence beyond a reasonable doubt for each element of the charge.
If the defence raises a defense with a reverse onus, the standard may shift to the balance of probabilities for that defense.
Standard of proof for the Crown remains beyond a reasonable doubt unless a reverse onus applies.

Considerations for sentencing are set out in $ext{Section } 9.2$ (circumstances of aggravation or mitigation).
General principles include: punishment should be just; aggravating vs mitigating factors include age, remorse, impact on the victim, family responsibilities (e.g., sole parent), and prior history.
Example discussion: a judge describing maximum penalty based on bias or personal vengeance does not align with sentencing purposes; may indicate conflict or lack of impartiality.
If a judge has a conflict of interest or bias, they must recuse; parties may request reassignment to another judge.

Aggravating factors: severity of the offence, impact on the victim, repeat offences, and lack of remorse may aggravate.
Mitigating factors: youth/age, genuine remorse, sole caregiver status, potential for rehabilitation, and personal circumstances.
A sentencing remark focused on personal bias rather than statutory purposes suggests an invalid or improper sentence.

There is an Australian criminal law framework; for Queensland trials, the $ext{Queensland Code}$ applies, unless ambiguity/gap necessitates common law.
The Code applies to Queensland trials; common law fills gaps only when necessary (ambiguity, gap, or technical meaning).
Decisions from Western Australia can be persuasive but not binding, unless from Queensland’s higher courts or High Court affecting a Queensland case.
Burdens and standards recap: Crown bears the burden to prove beyond a reasonable doubt; if a defense raises a defense with a reverse onus, standard shifts to balance of probabilities for that defense.

Indictable vs non-indictable offences and who hears them; use $552A$ – $552AB$ for summary handling of indictable offences.
Adultery is not a crime unless statute explicitly creates it as such.
The Queensland Code is primary; common law only fills gaps or clarifies ambiguity.
Burden of proof: Crown must prove beyond a reasonable doubt; reverse onus shifts to balance of probabilities for the defense.
Sentencing must align with the purposes under $ext{Section } 9.2$ of the Penalties and Sentences Act; assess aggravation and mitigation carefully.
If bias or conflict arises in a judge, recusal is appropriate.
Prepare for upcoming: module two seminar, module two questions, module three reading and seminar focusing on homicide, and the multiple-choice assessment.