Criminal Law and Procedure

What the unit requires

The topics should provide knowledge of the general doctrines of the criminal law and, in particular, examination of both offences against the person and against property. Selective treatment should also be given to various defences and to elements of criminal procedure.

• a The definition of crime
• b Elements of crime
• c Aims of the criminal law
• d Homicide and defences
• e Non-fatal offences against the person and defences
• f Offences against property
• g General doctrines
• h Selected topics chosen from: (i) attempts (ii) participation in crime (iii) drunkenness (iv) mistake (v) strict responsibility,
• i Elements of criminal procedure. Selected topics chosen from: (i) classification of offences (ii) process to compel appearance (iii) bail (iv) preliminary examination (v) trial of indictable offences,

Topics and descriptor are the instrument's own words, transcribed in curriculum-spine-data.ts. UAR Sch 1 cl 2 states that the topics need not all be taught in a single subject, so the mapping from units to topics is many-to-many.

The ideas that decide the mark

• Mens rea is presumed unless the statute displaces it

  The fault element is not limited to the adverbs a provision happens to use. Whether an offence requires mens rea at all is a question of statutory construction informed by the seriousness of the offence, the subject matter, and whether imposing strict liability would assist enforcement.

  The usual error: That silence means strict liability. The presumption runs the other way, and the real question is whether it is rebutted.

• The physical and fault elements must coincide in time

  An offence is a transaction, not a checklist of independent elements. Where the act and the intention are separated — a continuing act, an omission, a series of acts — the analysis has to explain what supplies the coincidence.

  The usual error: Treating each element as satisfiable at any moment, which produces an offence where no single moment contained both.

• The evidential and persuasive burdens for a defence differ

  For most defences the accused bears only an evidential burden: enough to put the issue in play. The prosecution then must disprove the defence beyond reasonable doubt. Only a few defences (insanity, substantial impairment in some jurisdictions) place a persuasive burden on the accused.

  The usual error: That "the defence must prove self-defence" — the single most common structural error in exam answers on this area.

• Voluntariness is a precondition of the act, not a defence

  If the act was not willed, there is no actus reus and the prosecution has failed at the first step. Automatism is therefore categorised as sane or insane, because the consequence differs: acquittal, or a qualified finding.

  The usual error: Running automatism as a defence alongside self-defence, which concedes the act and changes who bears the burden.

• Causation is substantial contribution, not "but for" alone

  Factual causation is necessary but not sufficient. The question is whether the accused's conduct was a substantial or significant cause, operating independently of the victim's own act, and whether an intervening act broke the chain.

  The usual error: Answering causation with a "but for" sentence and stopping, which reaches the wrong result wherever the victim did something in response.

How it is assessed

• Problem questions built from a fact pattern with two or three arguable issues, each requiring element-by-element analysis and then a defence.
• Essay questions on doctrine (constructive murder, the scope of provocation, strict liability policy) rather than on a single case.
• Procedure questions are shorter and often sit in a separate unit: bail, classification of offences, and the committal pathway.

How this unit is actually examined — the split between problem and essay, the weighting, and the past-paper shapes — is a fact about your institution. It is not recorded here because the university layer has not been built, and a guessed assessment pattern is worse than none.

The authorities

Each was resolved against the corpus. Where a paragraph could be verified it is given; where it could not, the case is cited without one rather than with an invented paragraph.

• He Kaw Teh v The Queen (1985) 157 CLR 523Held, no pinpoint

  The framework for whether mens rea is required, and the source of the presumption.

  held, but no paragraph of the AustLII text ranked as discussing this proposition — cite the case without a pinpoint

• Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645AustLII paragraph

  The self-defence test, and the clearest illustration that the defence need only raise the issue.

  Find it at (1987) 162 CLR 645, AustLII [3] (Brennan J) — AustLII's own numbering. This judgment predates paragraph numbering, so cite the case without a pinpoint in an exam.

• R v Lavender (2005) 222 CLR 67Pinpoint verified

  Proportionality in self-defence, and the objective limb applied to a mistaken belief.

  Cite at [2005] HCA 37 at [59] (Gleeson CJ, McHugh, Gummow and Hayne JJ)

• Green v The Queen (1997) 191 CLR 334AustLII paragraph

  Where provocation and self-defence overlap, and why the two are not alternatives on the same facts.

  Find it at (1997) 191 CLR 334, AustLII [6] (McHugh J) — AustLII's own numbering. This judgment predates paragraph numbering, so cite the case without a pinpoint in an exam.

• Royall v The Queen (1991) 172 CLR 378AustLII paragraph

  Causation in homicide, including the substantial contribution and novus actus tests.

  Find it at (1991) 172 CLR 378, AustLII [3] (Brennan J) — AustLII's own numbering. This judgment predates paragraph numbering, so cite the case without a pinpoint in an exam.

• Osland v The Queen (1998) 197 CLR 316Held, no pinpoint

  Duress and the limits of self-defence where the threat is not immediate.

  held and numbered, but no paragraph ranked as discussing this proposition — cite the case without a pinpoint

• R v Tang (2008) 237 CLR 1Pinpoint verified

  Physical control and possession as elements, useful whenever an offence turns on "possession".

  Cite at [2008] HCA 39 at [153] (Hayne J)

Boundaries

Authorities whose existence is established but whose text this corpus cannot hold. They are citable; the reason they cannot be pinpointed is stated.

• Stingel v The Queen (1990) 171 CLR 312Digitisation gap

  Provocation: the ordinary person test and the gravity of the provocation.

  CLR 171 (1990) is inside the undigitised 1960-1997 band; the Court publishes CLR 1-100 and 1998-current only

  CLR 171 (1990) is inside the undigitised 1960-1997 band; the Court publishes CLR 1-100 and 1998-current only

The method

1. Name the offence and its source provision before analysing anything. An answer that never identifies the offence cannot be marked on its elements.
2. Separate physical from fault elements, and for each physical element say which fault element attaches to it. Courts distinguish conduct, circumstance and consequence elements, and the fault element may differ across them.
3. Resolve any statutory-construction question explicitly: is mens rea presumed, and is it displaced here? Cite the presumption, then apply the indicia.
4. Only then consider defences, and for each state who bears what burden, and why. A defence that the accused must prove is a different answer from one the prosecution must disprove.
5. Conclude on the most serious offence that the facts support, then on alternatives in descending order. Examiners award the analysis, not the verdict.

What loses marks

• Unlabelled narrative

  Describing what happened in chronological order instead of analysing elements. It cannot be marked against a rubric and it hides the issues.

• Treating mens rea as a single element

  One fault element rarely covers all physical elements. Conduct, circumstance and consequence each need their own analysis.

• Reversing the burden on defences

  Saying "the accused must establish self-defence" concedes the wrong party bears the risk of non-persuasion.

• Skipping the statutory provision

  Common law doctrine is the frame, but the applicable offence is statutory in every Australian jurisdiction. An answer without the provision is an answer to a different question.

• A verdict with no alternative analysis

  Most problem questions turn on which of two offences is made out. Answering only the highest one forfeits the marks for the comparison.