Week 1 Notes: Criminal Law and Procedure

Week 1 Notes: Criminal Law and Procedure

Course logistics and introductions

• Welcome to Criminal Law and Procedure for Week 1.
• Welcome video posted on Study Desk explaining where things are and how the course will flow.
• Weekly announcements: each week there will be a post outlining what was covered (Module 1 and 2, Tutorial 1) and what’s coming (Module 3, Tutorial 2), plus any assessments, room changes, etc.
• Instructor: Kirsty Smith, criminal lawyer with experience in defence and prosecution across Magistrates, Murray, District, and Supreme Courts; limited DV court experience; first in family to finish high school and go to university; helped admit her aunt to study later.
• Peer Assisted Learning (PALS): Jason (Jace) is the PAL leader for Law and Justice at UniSQ. Two weekly workshops: one for first-year law, one for second-year law.
  • Introductory video for PALS on study skills and strategies to digest doctrinal law material.
  • Structure: first half of session focuses on a skill (Lexis, IRAC, etc.), then break-out rooms for problem questions or MCQs to build issue spotting and collaboration.
  • Sessions are weekly; tonight’s session is at 06:30 PM (after hours) with a Zoom link on StudyDesk; formal 1st-year kickoff next week.
  • Drop-in sessions available; extend support by emailing beforehand; links are in the same place as the lecture links.
• Engagement expectations: instructor will call on students during seminars; engagement improves learning and helps manage long lecture times.
• Ongoing communication: lots of student emails already; the instructor encourages questions and reassures that the workload may feel overwhelming at first, but a predictable pattern will emerge.

What to expect this week (plan for the course)

• This week: live lecture first, then a break, then tutorials for Module 1; upload lecture for Module 1 and Module 2; pre-read Module 3.
• Next week: Seminar for Module 3 and Tutorial for Module 2.
• Drop-in availability: can schedule time with the lecturer for extra questions; link located with the lecture materials.
• General aim: get students ahead so they’re prepared for the more complex topics (e.g., homicide) next week.

Week 1 objectives (overview)

• Introduce and outline the fundamentals of criminal law.
• Define crime and identify why criminal law exists.
• Explain the source of crimes and how they are classified.
• Locate where the law comes from and how to find it (textbooks and statutory sources).
• Emphasize burdens and onus of proof (critical concept throughout the trimester).
• Highlight how the course will address the Burden of Proof, Standard of Proof, and related concepts.

Defining crime: mala in se vs mala in prohibita

• Legislation is the first point of call for what crimes exist and their punishments (Criminal Code and other Acts like traffic legislation).
• Two main types in Colvin reading:
  • mala in se: traditional moral wrongs (e.g., murder).
  • mala in prohibita: regulatory offences (e.g., speeding, cybercrime, coercive control in some contexts).
• Examples discussed:
  • Traditional crime: Murder.
  • Modern/regulatory offences: Speeding, possession of illegal substances, cybercrime, coercive control, various driving offences.
  • Historical/changes: Dueling (Section 73 repealed in 02/2008); assisted dying (regulatory evolution allowing some circumstances).
• Why laws change: changes in society and social norms to regulate conduct more effectively; ensure public order and protection while reflecting evolving social attitudes.
• Societal examples of change and variation:
  • Medicinal marijuana: legal in some places, not others.
  • Abortion: legality varies by jurisdiction and over time.
  • Other examples: sex work decriminalisation, changes in policing approaches (e.g., online policing vs. under-cover policing historically vs. modern online approaches).
• Takeaway: all offenses remain illegal unless the law changes; new offences can arise while old offences may be removed or reclassified.

Sources and classification of offences; Queensland Criminal Code (QCC) and beyond

• Queensland is a code-based state; primary source is the Queensland Criminal Code (QCC). The latest version is preferred, but older versions may be used if you know which chapters apply.
• Textbook reference: Colvin (1.4) and module notes for chapters; stay aligned with the version you have.
• Other important terms:
  • QCC stands for Queensland Criminal Code.
  • Commonwealth Criminal Code exists, but general rule is to refer to state-based laws first due to federal structure.
• Commonwealth powers: Commonwealth has supplementary powers to create offences in areas like external affairs and drug importation; however, states retain primary responsibility for criminal law within state boundaries.
• Code-based vs common law jurisdictions:
  • Code-based states (e.g., Queensland, WA, Tasmania, NT, ACT, etc.) have comprehensive codes.
  • New South Wales, Victoria, South Australia rely more on multiple statutes (common law plus statutes).
• The Griffith Code: name often used for Queensland’s Criminal Code; drafted by Sir Samuel Griffith; originated early 1900s; influenced Western Australia’s early adoption.
• Practical note: while code-based, some common law concepts and precedents are still relevant, especially in areas like defences.
• The High Court and cross-jurisdictional considerations: decisions from other states or the High Court may be persuasive but not binding if they apply different legislation (e.g., WA decisions not binding on Queensland courts).
• For exam and practice, always refer to Queensland-specific provisions first; consider persuasive authority from other jurisdictions when relevant, but not binding.

Indictable vs non-indictable offences; jurisdiction and courts

• Indictable offences: generally more serious; heard in higher courts (Supreme Court, District Court).
• Non-indictable offences: generally simpler offences; heard in lower courts (Magistrates Court).
• Indictment: a written document that initiates proceedings in a superior court; includes details of the offence (who, what, when, where, how).
  • Indictment is used for serious offences; allows the defendant to respond to each allegation.
• Non-indictable offences typically fall under the Magistrates Court and are often captured under acts like the Summary Offences Act; regulatory offences generally fall under specific regulatory provisions.
• Jurisdiction location rules: the Queensland Code sections 552A to 552BA (and related 552D) specify where offences are dealt with (which court) depending on the offence and circumstances.
• Law Reform Commission: provides advice to Parliament and committees regarding whether offences should be moved between courts, often to enhance efficiency or address concerns about youth justice, trial duration, and costs.
• Practical example: some offences might be appropriate to be dealt with in a lower court if they are sufficiently serious but could clog higher courts if left to the higher jurisdiction; this helps speed up justice and reduces costs.
• Property offences: many can be either indictable or non-indictable depending on the circumstances and the legislative frame; some offences might exist outside the QCC (e.g., in the Summary Offences Act or other Acts).

The nature and purposes of criminal law; the five sentencing purposes (Penalties and Sentences Act)

• The core rationale for having a criminal code and a system of punishment: justice, public safety, consistency, and reflects societal values.
• Penalties and Sentences Act (PSA): Section 9 outlines the purposes of sentencing across all judges and courts in Queensland and the standard for when sentences may be imposed.
• Section 9(1) purposes (at least one must be satisfied):
  • Punish the offender in a manner that is just in all the circumstances (severity of the offence, the offender’s background, etc.).
  • Rehabilitation: aim to prevent future offending by addressing underlying issues (e.g., drug rehabilitation, education, etc.). Note the critique that rehabilitation programs must be accessible and affordable; there is concern about how effective or accessible programs are across different regions.
  • Deterrence: two aspects – deterrence of the offender (specific deterrence) and deterrence of others (general deterrence); assess whether punishment will deter others in the community.
  • Denunciation: the community denounces the behaviour and communicates its disapproval through the sentence.
  • Community protection: protecting the community from the offender, especially for serious offences (often violent offences).
• Section 9(2) adds considerations about the maximum and minimum penalties, and when those apply (e.g., a standard maximum penalty vs. a mandatory penalty).
• Mandatory penalties: only a few offences have a mandatory penalty; murder is a key example where the only possible penalty is life imprisonment (though parole may be available after a set period and is not guaranteed).
• The concept of “up to” in maximum penalties: most offences specify a maximum penalty; you must read as “the maximum penalty to be imposed is up to” that amount; there are exceptions when a mandatory penalty applies (e.g., life imprisonment for murder).
• Section 9.2 and subsequent sub-sections (9.2, 9.2A, 9.2A1, 9.2A2, 9.2C, 9.2F(A), 9.2F(B)) expand on additional considerations when imposing sentence:
  • Consider the impact of the offence on victims, including mental, physical, or emotional harm.
  • Consider the impact on any child under 16 who may have been exposed to the offence.
  • Consider the impact of the sentence on the offender’s family, especially if the offender is the primary carer.
  • Consider the potential impact on a pregnant offender and the unborn child.
• Rehabilitation and access: rehabilitation provisions may be less accessible depending on resources, location, and the type of offence; examples include education programs and restorative justice orders (not universally available).
• Deterrence as a policy goal: essential but debated; deterrence can lead to higher deterrence for more severe offences and changes in behaviour, but may not work uniformly for all offenders or across all offences (e.g., the effect of the death penalty in other jurisdictions is not clearly linked to lower crime rates).
• Additional aims: ensuring consistency of punishment to avoid arbitrary outcomes and ensuring that criminal sanctions reflect the community’s values and safety needs.
• The concept of “First Nations considerations”: Section 9.2A and related subsections address culturally appropriate (but not necessarily culturally safe) approaches for First Nations offenders; Murray Court is a sentencing court in some regions for First Nations offenders pleads guilty, with a focus on culturally appropriate procedures (not a trial court).
• Murray Court details:
  • Available in some parts of Queensland (e.g., Toowoomba); not universal across all jurisdictions.
  • Offences must be dealt with by pleading guilty to be heard in Murray Court.
  • Elders provide advisory input; magistrates still preside and sentence; sentencing may include culturally appropriate considerations.
• LORE (cultural law) vs formal law: elders provide advisory input; not the sentencing authority; the magistrate retains sentencing authority; the role is to support rehabilitation and culturally informed processing.

The structure of the Queensland Criminal Code and the role of common law

• The code is organized into Parts:
  • Part 1: Introductory provisions (definitions and general principles).
  • Parts 2–6: Different types of offences.
  • Part 7: Extension of criminal liability (participation, liability for others, etc.).
  • Part 8: Criminal procedure (how offences are processed through the system).
• The code is designed to be navigable: provisions are in dedicated sections, and users are encouraged to refer to the code directly rather than relying solely on lecturer commentary.
• Common law still matters, particularly for interpretation scenarios where the code is silent, ambiguous, or incomplete (three circumstances to go outside the code):
  • Technical meaning not covered by the code.
  • Ambiguous or unclear wording.
  • Gaps where the code is silent on an issue.
• The basic interpretive approach in a code-based state like Queensland:
  • Apply ordinary or natural meaning to provisions.
  • Go outside the code only in explicit situations (technical meaning, ambiguity, or gaps).
  • When ambiguity exists, interpret in favour of the accused due to presumption of innocence.
• The doctrine of precedent in Queensland:
  • Decisions of superior courts within Queensland's hierarchy are binding on lower courts in similar circumstances.
  • Decisions from other states (e.g., WA) may be persuasive but are not binding if they apply different legislation.
  • The concept of binding vs persuasive is context-dependent and requires understanding the jurisdictional framework and the source of the law.
• The code’s development and history:
  • Griffith Code (Sir Samuel Griffith) as the foundational code for Queensland (1901).
  • WA adopted a similar code a year later; both have since evolved differently.
  • In practice, precedents from other jurisdictions may inform reasoning but are not controlling where the law differs.
• Defences and common law: some defences (e.g., insanity) operate within the common law framework rather than exclusively within the code; for some issues, there may be limited open-court discussion and instead mental health court processes.

Burden of proof and standard of proof (core concept reinforced)

• Central concept: burden and standard of proof are crucial in criminal trials.
• Prosecution burden (in general): the prosecution carries the evidential burden to produce admissible evidence and the persuasive burden to prove every element of the offence beyond a reasonable doubt; also must negate possible legal defences beyond a reasonable doubt.
• Evidential burden vs persuasive burden:
  • Evidential burden: the obligation to produce evidence supporting a proposition; borne by the party who relies on that proposition (generally the prosecution in criminal cases).
  • Persuasive burden (legal burden): the obligation to persuade the decision-maker that the proposition is true to the required standard of proof; also borne by the prosecution in normal cases.
• Standard of proof: the standard to prove facts beyond reasonable doubt for the prosecution; if a reverse onus applies (defence bears the burden on a specific issue), the standard is typically the balance of probabilities for that particular issue.
• The presumption of innocence: the accused is presumed innocent until proven guilty; silence is not evidence of guilt; the right to silence is a product of the presumption of innocence.
• The general rule for burdens: prosecution bears both evidential and persuasive burdens to prove all elements beyond reasonable doubt; the defence must raise and prove any legal excuses or defences with the evidential burden, and the prosecution must negate them beyond reasonable doubt.
• Reverse onus scenarios (example discussed): provocation in murder cases (e.g., section 304(9)) may require the defence to prove manslaughter on the balance of probabilities; this illustrates how the code may signal a reverse onus, though the exact language may not always be explicit.
• If the prosecution fails to discharge its burden (beyond reasonable doubt), the accused is acquitted.
• The onus of proof is dynamic and depends on statutory provisions, case law, and the specific offence charged; the balance of probabilities generally applies where the defence bears the burden due to a reverse onus scenario.
• Practical note: the burden distribution remains a central theme through the course, and students should be able to identify who bears the burden for evidential and persuasive elements in different contexts and how the standard of proof applies.

Connections to real-world practice and ethical considerations

• The Law Reform Commission’s ongoing role is to adapt the system for efficiency and fairness; changes to the distribution of offences across courts reflect concerns about delays, cost, and access to justice.
• Rehabilitation vs punishment tension: access to rehabilitation programs (education, restorative justice) is unevenly distributed; this raises ethical concerns about fairness and equal opportunity to rehabilitate.
• Deterrence debates highlight practical and ethical questions about how to balance punishment with societal protection and individual reform.
• Cultural considerations (First Nations) and the Murray Court illustrate attempts to integrate culturally appropriate practices into a criminal justice system that is otherwise formal and state-centric.
• The open vs secretive aspects of defences (e.g., insanity) highlight ongoing tensions around transparency and public confidence in the justice system.

Quick recap: key authorities and terms to remember

• Indictments: the formal charging document used for serious offences; contains who/what/when/where/how; supports trial in higher courts.
• Indictable vs non-indictable offences: severity and court level differences; jurisdiction determined via sections 552A–552BA (and 552D) in the QCC.
• Five sentencing purposes (PSA §9): punishment, rehabilitation, deterrence, denunciation, community protection; and considerations under §9.2–9.2F for additional factors (victim impact, child exposure, consequences for families, pregnancy impact).
• Maximum penalties and mandatory penalties: most offences have a maximum “up to” a specified term; murder has a mandatory maximum of life imprisonment (parole possible but not guaranteed).
• Section 9(2) and related subsections: establish additional sentence considerations and the shift in focus toward rehabilitation and community impact.
• Burden of proof and standard of proof: prosecution generally bears evidential and persuasive burdens to prove all elements beyond reasonable doubt; reverse onus under certain defences leads to balance-of-probabilities standards for those issues.
• Code vs common law: Queensland follows a code-based model, but common law principles provide interpretive guidance in specific circumstances; the High Court and other states may be persuasive but not binding if different legislation applies.

Suggested study prompts

• Explain the difference between mala in se and mala in prohibita with examples from the lecture.
• Describe the structure of the Queensland Criminal Code (Parts 1–8) and what each part generally covers.
• Explain the five sentencing purposes and provide examples of how rehabilitation, deterrence, and denunciation might influence a sentence.
• Define evidential vs persuasive burdens of proof and provide an example of a reverse onus scenario from the lecture.
• Distinguish between indictable and non-indictable offences and explain how the sections 552A–552BA guide which court will handle a given offence.
• Discuss the role of Murray Court and LORe (elders) in the context of First Nations offenders and culturally informed sentencing.
• Outline how the doctrine of precedent operates within Queensland and why decisions from other states may be persuasive but not binding.
• Reflect on the advantages and limitations of a code-based system in terms of accessibility and consistency.

Notes prepared from the Week 1 lecture content. Ensure you cross-check with the latest edition of Colvin and your module notes for chapter and section references, and stay updated with Study Desk announcements for any room changes or assessment deadlines.