Criminal Law – Topic 1 Notes

Course Overview

• LAW2394: Criminal Law, RMIT University (Online Term 2 2025 – course code 2566)

• Lecturer / Tutor / Course-Coordinator: Timnah Baker (timnah.baker@rmit.edu.au)

• Weekly structure (12 weeks)

  • W1 Introduction & Classification of Offences

  • W2 Police powers; Sentencing

  • W3 Bail, Trial, Appeals

  • W4 Assault

  • W5 Murder

  • W6 Manslaughter

  • W7 Sex Offences

  • W8 Defences

  • W9 Property Offences

  • W10 Attempts

  • W11 Complicity

  • W12 Revision / Exam prep

• Delivery mode

  • Weekly prerecorded lecture

  • Live interactive tutorial (Teams link in Canvas)

  • All readings / slides in Canvas modules

• Inspirational quote (Justice Michael Kirby): criminal law is the “great centrepiece of any legal system … where our commitment to fair trial and the rule of law are tested every day.”

Course Logistics & Preparation

• Core texts

  1. Penny Crofts et al, Waller & Williams Criminal Law: Text and Cases (15th ed, 2024)

  2. Brianna Chesser & Graham Thomas, Criminal Law and Procedure in Victoria, NSW and Queensland (3rd ed, 2023)

• Essential materials: latest edition of the Crimes Act 1958 (Vic); additional readings on Canvas

• Preparation tips

  • Read prescribed cases, articles, news reports

  • Form study groups, discuss weekly problems

  • Practise writing answers (structure, summary, legal analysis, clear conclusions)

  • Familiarise with Canvas, library databases, Studiosity 24/7 study help

Assessment Schedule

• Task 1 Brief to Counsel — 20 %, $1500$ words, due 25 Aug 2025 08:00 AEST

• Task 2 Research Essay — 30 %, $2000$ words, due 29 Sep 2025 08:00 AEST

• Task 3 Final Exam — 50 %, centrally timetabled end-of-semester

• Submission rules

  • Word format only (.doc / .docx)

  • 10 % word-limit leeway

  • All work scanned for plagiarism

  • AI Category 1 – no AI assistance permitted

  • “Cut-off” for questions / extension requests; late queries ignored

Course Objectives

• Understand:

  • Aims/objectives of the criminal justice system

  • Underlying principles of criminal law & procedure

  • Components: investigation → procedure → substantive offences → sentencing

Legal Reasoning Framework – IRAC

• Issue – identify legal question(s)

• Rule – state relevant legal principles / legislation / precedents

• Application – apply rule to facts, analyse both sides

• Conclusion – reach logically supported outcome

Canvas Navigation (quick checklist)

• Tabs: Home, Announcements, Syllabus, Modules, Reading List, Assignments, Discussions, Pages, Collaborate Ultra, Grades, People, Microsoft Teams, Studiosity

• Each topic has: short intro video, topic guide, slides, required readings

Defining ‘Crime’

• Classic definition (Glanville Williams): “A crime is a legal wrong that can be followed by criminal proceedings which may result in punishment.”

• Three‐part formula

  1. Legal wrong (source = common law + statute)

  2. Criminal proceedings (public prosecution, jury trial, verdict $\text{BRD}$)

  3. Punishment (public censure; distinguishes crime from civil wrong)

• Crime as a public wrong – aimed at community/state interests, not only private compensation

Sources of Criminal Law

• Common law (judge-made) – e.g. Woolmington v DPP $[1935]$ AC 462

• Statutory law (Parliament) – principal Victorian statute: Crimes Act 1958 (Vic)

• Federal overlay: Crimes Act 1914 (Cth) etc.

Morality, Freedom & Criminalisation

• Key questions:

  • What distinguishes a criminal act from an immoral act?

  • When is it legitimate for the state to restrict personal autonomy?

• Theories

  • JS Mill (1859) – Harm Principle: intervention only to prevent harm to others

  • HLA Hart (1963) – Limit law’s interference unless vulnerable persons at risk

  • Lord Devlin (1959) – Law should uphold “common morality” & social cohesion

• Continuous tension → law-reform debates (e.g. drugs, sex work, euthanasia)

Case Study – R v Brown $[1994]$ 1 AC 212

• Facts: group of adult men engaged in consensual sadomasochistic sexual acts causing actual bodily harm (ABH)

• Issue: Whether victims’ consent negates criminal liability for ABH

• House of Lords split 3 : 2

  • Majority (Lords Templeman, Jauncey, Lowry)

  • Consent irrelevant; public policy demands punishment

  • Justifications: protect society from “cult of violence”, prevent potential corruption of youth, uphold family values

  • Minority (Lords Mustill, Slynn)

  • Private, consensual behaviour; no public harm → should not be criminal

  • If society wishes to ban it, Parliament – not courts – should legislate

• Illustrates clash between individual privacy and public morality

Fundamental Principles of Criminal Law

• Legality / Rule of Law

  • No arbitrary punishment; offences must be defined in advance

• Equality before the law

  • Law applies equally; no one is above it

• Criminal responsibility

  • Presumption of innocence; prosecution to prove guilt $\text{BRD}$

  • Requirement of culpable mental state (mens rea) save for strict liability

Elements of an Offence

1 Actus Reus (AR) – external / physical element

• May include:

  • Conduct (act or omission)

  • Circumstances (e.g. without consent)

  • Consequence (e.g. death, injury)

• Must be voluntary (Bratty v AG for NI $[1963]$ AC 386)

  • Excludes reflex, convulsion, sleep-walking etc.

• Omissions only criminal where a legal duty exists:

  1. Special relationship (parent/child, doctor/patient)

  2. Statutory duty

  3. Creation of danger

2 Mens Rea (MR) – culpable mental state

• Intention – aim/purpose to bring about result or engage in conduct

• Recklessness – foresight of substantial risk + unjustified continuation

• Negligence – gross deviation from reasonable standard of care

• Strict / absolute liability offences: MR not required (e.g. speeding)

3 Concurrence (Contemporaneity)

• AR and MR must coincide in time

  • Cases: Fagan v MPC (continuing act); Thabo Meli v R (single transaction theory)

Structured Element Example – $\text{Crimes Act 1958 (Vic)\, s 16}$

Burden & Standard of Proof

• Prosecution

  • Evidential burden – adduce some evidence of every element

  • Legal (persuasive) burden – prove elements beyond reasonable doubt ($>\text{very high probability}$)

  • If defence raised → must rebut BRD

• Accused

  • Evidential burden for any defence (produce reasonable possibility of its existence)

  • Sometimes legal burden for specified defences (e.g. mental impairment) on balance of probabilities

• “Golden thread” (Woolmington v DPP): prosecution must prove guilt; accused need not prove innocence

• Jury Directions Act 2015 (Vic) s 64 clarifies meaning of ‘BRD’ (not absolute certainty; not fanciful doubt)

Age & Capacity to Commit Crime – Doli Incapax

• Under $12$ (Vic after Youth Justice Act 2024): conclusive presumption of incapacity

• $12$–$14$ years: rebuttable presumption

  • Prosecution must prove BRD that child understood conduct was “seriously wrong” (not mere naughtiness)

  • Factors: intellectual development, education, environment (cases: C v DPP $[1996]$ AC 1; RP v R $[2016]$ HCA 53)

• $\ge14$ years: full criminal responsibility (subject to youth court jurisdiction)

• Ongoing reform debate: raise minimum age to $14$ nationwide

Who/What Can Be Criminally Liable?

• Natural persons (adults, children subject to age rules)

• Corporations (vicarious & direct liability models)

Classification of Offences – Procedure & Courts

• Summary – minor; heard in Magistrates’ / Children’s Court; no jury

• Indictable – serious; tried by judge + 12-person jury (County or Supreme Court)

• Indictable triable summarily – listed in Criminal Procedure Act 2009 (Vic) ss 28-29 & Sched 2; accused can consent to summary handling

• Court hierarchy

  1. Magistrates’ / Children’s Court (Level 7-12 offences; max 2 yrs per charge)

  2. County Court (most indictable except treason/murder)

  3. Supreme Court – Trial Division (treason, murder)

  4. Supreme Court – Court of Appeal

  5. High Court (special leave)

Sentencing Purposes (Sentencing Act 1991 Vic)

• Retribution (just deserts)

• Deterrence (specific & general)

• Rehabilitation

• Denunciation

• Community protection

Key Take-Home Summary

• Crimes usually demand both $\text{AR}$ and $\text{MR}$; exceptions = strict/absolute liability.

• AR must be voluntary; can include omissions where duty exists.

• MR commonly = intention or recklessness; sometimes negligence.

• AR & MR must be contemporaneous.

• Prosecution bears burden to prove each element beyond reasonable doubt; defence bears evidential burden for defences.

• Children under $12$ (Vic) cannot be criminally liable; $12$–$14$ only if presumption of doli incapax rebutted.

• Offence classification dictates procedure, court level, and presence of jury.

• Criminal law balances individual autonomy against societal protection/morality, illustrated by cases like R v Brown.

Important Case Summaries & Course Relevance

• Woolmington v DPP $[1935]$ AC 462

  • Summary: This pivotal House of Lords case established the “golden thread” of English criminal law: the prosecution must prove the guilt of the accused beyond a reasonable doubt, and the accused does not have to prove their innocence. The case involved a man accused of murdering his wife, where the trial judge incorrectly instructed the jury that the burden of proving innocence for an accidental killing lay with the accused.

  • Relevance: Directly linked to the fundamental principle of burden and standard of proof. It underpins the presumption of innocence and specifies that the prosecution bears the legal (persuasive) burden to prove every element of an offence $BRD$. It is a cornerstone case for understanding the rights of the accused.

• Bratty v AG for NI $[1963]$ AC 386

  • Summary: The House of Lords held that an act is not punishable if it is done by a person who is unconscious and so cannot control their actions, as involuntariness negates the actus reus. Bratty had strangled a woman, and his defence was automatism (a "blackout") linked to psychomotor epilepsy.

  • Relevance: Essential for understanding the voluntariness requirement of the Actus Reus (AR). It clarifies that for an act to be a criminal act, it must be conscious and willed, excluding actions like reflexes, convulsions, or those performed during sleepwalking.

• Fagan v MPC $[1969]$ 1 QB 439

  • Summary: Fagan accidentally drove his car onto a police officer's foot, then, when asked to move, deliberately refused to do so. The issue was whether the actus reus and mens rea coincided.

  • Relevance: Illustrates the concept of concurrence (contemporaneity), specifically the "continuing act" doctrine. Even if the initial act was accidental, if the mens rea (intention to inflict harm/obstruction) is formed while the actus reus is still ongoing, then the elements are said to coincide.

• Thabo Meli v R $[1954]$ 1 WLR 228

  • Summary: The defendants assaulted a man intending to kill him, believing they had done so. They then threw what they thought was his dead body over a cliff, which resulted in his actual death (from exposure, not the initial assault). They argued that the actus reus (throwing him over the cliff) occurred after the mens rea (intention to kill) and therefore the elements did not coincide.

  • Relevance: Crucial for understanding concurrence (contemporaneity), particularly the "single transaction theory." The court viewed the entire sequence of events as one continuous transaction driven by the initial intent, thus maintaining that actus reus and mens rea did coincide.

• R v Brown $[1994]$ 1 AC 212

  • Summary: A group of consensual adult men engaged in sadomasochistic sexual acts causing actual bodily harm. The core legal issue was whether consent negated criminal liability for these injuries.

  • Relevance: A seminal case in the Morality, Freedom & Criminalisation section. It vividly illustrates the continuous tension in criminal law between individual privacy/autonomy (the minority view emphasized private, consensual behaviour) versus public morality/societal protection (the majority's justification for punishment due to concerns about a "cult of violence" and upholding social values). It highlights when the state considers it legitimate to intervene in private conduct, even where there is consent.

• C v DPP $[1996]$ AC 1 & RP v R $[2016]$ HCA 53

  • Summary (C v DPP): This case involved a $10$-year-old boy accused of theft. The House of Lords affirmed that for a child between $10$ and $14$ years old (the age range subject to rebuttable presumption of doli incapax at the time in the UK), the prosecution must prove not only that the child committed the act but also that they understood it was seriously wrong (not merely naughty).

  • Summary (RP v R): The High Court of Australia reaffirmed the doli incapax presumption for $10$ to $14$-year-olds. RP, an Indigenous child, was accused of sexual offences. The court stressed that the prosecution must prove, beyond reasonable doubt, that the child knew their act was gravely wrong as distinct from being merely mischievous or naughty.

  • Relevance: Both cases are fundamental to the concept of Age & Capacity to Commit Crime – Doli Incapax. They define how the rebuttable presumption for children aged $12$–$14$ (in Victoria, post-Youth Justice Act 2024) operates. They clarify that it's not enough to prove the child committed the act; the prosecution must also prove the child's moral culpability – that they understood their conduct was "seriously wrong."

The 'Thabo Meli v R' case addresses a tricky aspect of criminal law known as concurrence (or contemporaneity), where the actus reus (the physical act of the crime) and mens rea (the guilty mind or intent) must exist at the same time. While it might seem like they didn't coincide in this case, the court used the 'single transaction theory' to find concurrence.

Here's a breakdown:

• Original Actus Reus and Mens Rea: The defendants initially assaulted the victim with the mens rea (intention to kill). At this point, they also performed an actus reus (the assault). They believed this initial assault had killed him.

• Subsequent Actus Reus (causing actual death): When they subsequently threw what they thought was his dead body over a cliff, this act was the ultimate cause of his death (due to exposure). This later act constituted the actus reus that led to his actual death.

• The Concurrence Problem: The challenge was that their initial mens rea (intent to kill) was present during the assault, but they thought the victim was already dead when they performed the actus reus that actually killed him (throwing him off the cliff). It seemed the intent did not align perfectly with the fatal act.

• The 'Single Transaction Theory' Solution: The court resolved this by treating the entire series of events as one continuous transaction. The initial intent to kill, formed during the assault, was considered to be still operating throughout the subsequent actions of disposing of the body, which then resulted in death. Because the defendants intended the victim to die and performed a series of acts to achieve that end, even if they misinterpreted the effect of the initial acts, their overall intent was linked to the act that caused death during that 'single transaction.' Therefore, the actus reus and mens rea were found to coincide.