Principles of criminal law [Fourth edition.] 9780455237909, 0455237905, 9780455237916, 0455237913

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PRINCIPLES OF CRIMINAL LAW

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PRINCIPLES OF CRIMINAL LAW

Simon Bronitt LLB (Bristol), LLM (Cambridge)

Deputy Dean (Research) and Deputy Head of School TC Beirne School of Law | The University of Queensland

Bernadette McSherry BA (Hons), LLB (Hons), LLM (Melb), PhD (York, Can), Grad Dip Psych (Mon)

Foundation Director, Melbourne Social Equity Institute, University of Melbourne Adjunct Professor of Law, Melbourne Law School and Faculty of Law, Monash University

FOURTH EDITION

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NSW First edition ..................................................................2001 Second edition .............................................................2005 Third edition.................................................................2010 National Library of Australia Cataloguing-in-Publication entry Bronitt, Simon, author. Principles of criminal law / Simon Bronitt; Bernadette McSherry. 4th edition Includes index. ISBN 978 0 455 23790 9 Criminal law—Australia McSherry, Bernadette, author. © 2017 Thomson Reuters (Professional) Australia Limited This
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FOREWORD MarkWeinbergAO Judge
Court
of
Appeal
Supreme
Court
of
Victoria It came as something of a surprise to me when, after some admittedly cursory research on my part, I discovered that most modern legal texts published in this country no longer commence with the traditional foreword. The preface is still sometimes utilised. However, that represents the stated aims of the authors, and not the thoughts of an independent commentator. In searching for some ideas as to what I might say in a foreword, I turned to the one example that had embedded itself in my mind. That was the late Justice ‘Roddy’ Meagher’s utterly scandalous, politically incorrect, and somewhat misogynistic June 1990 foreword to the reprint of Pollock and Wright’s Essay on Possession in the Common Law. I refer in particular to the last paragraph of that foreword where he referred to that great work as having received “negative deference”. He said that this was partly because it had been out of print. He added that it was also because it did not mention “semiotics”, “hermeneutics” or “structuralism”. He described it as having no social relevance whatever. In typical ‘Roddy’ style he observed that the President of the New South Wales Court of Appeal never referred to it. He said it did not live in any “progressive” lawyer’s library and that women barristers had been known to deny its existence. He described it as a work of pure scholarship, of unqualified excellence. The fourth edition of Bronitt and McSherry’s Principles of Criminal Law has now been completed, and not before time. It does not mention “semiotics” or “hermeneutics”. It is replete with references to what some modern scholars would term “structuralism”. It has enormous social relevance. It would live happily in any “progressive” lawyer’s library. It should equally find a home in the library of even the most formalistic of black letter lawyers, who would benefit from opening their minds to its insights. It is a work of pure scholarship and of unqualified excellence. Principles of Criminal Law was first published in 2001. In their preface to the first edition the authors made plain that this was not to be a traditional criminal law text. They said that they had set themselves the daunting task of describing criminal laws across every Australian jurisdiction and, wherever possible, challenging these accounts from interdisciplinary vantage points. They openly proclaimed that reflecting upon their broad variety of interests, they had drawn upon a range of disciplines including criminology, criminal justice studies, feminism, legal history, human rights, legal theory, medicine, psychology and sociology to illuminate the substance and operation of the criminal law. They said: “What we do hope to impart is a critical orientation to the criminal law, rather than simply a description of the rules, principles and substantive definitions applicable in every jurisdiction.” In 2005, when the second edition came to be published, the Honourable Justice Michael Kirby, as he then was, wrote the foreword to the work. His Honour began by saying: “The study of criminal law is coming into its own. Mind you, the upper echelons of the legal profession still tend to look down their noses at crime.” Perhaps Justice Kirby was right, though I suspect that as the criminal law expands into areas into which it had never previously intruded, such as cartel conduct, those “upper echelons” may be forced to reconsider their ingrained prejudices against those who work in this area. In 2010, Bronitt and McSherry produced a third edition. On this occasion Justice Richard Refshauge wrote the foreword. He spoke of the significant increase of work in the criminal courts, and of the v

Principles of Criminal Law

changing nature and content of the criminal law. He referred to the introduction of the Commonwealth Criminal Code (certainly regarded by many as a mixed blessing), but as having changed a number of the fundamental concepts of the criminal law. His Honour had this to say: “While detailed annotations to the various criminal statutes are beloved of practitioners and there are a number of them, the Australian landscape has been firmly sparse when one looked for a text which dealt with the law in a holistic and narrative way, especially if one wanted to understand also the context and the theory which underpins it. Good lawyers look not just for the single instance which might give the answer to an immediate problem but for the principles on which the answer is based. This is not always easy, for legislators do not always make the law in a uniformly principled way. Even the myriad of judges in our nine Australian jurisdictions do not always see eye-to-eye on the theories and principles that they find to apply in case after case. ... I regularly used ‘Bronitt and McSherry’ whilst ACT Director of Public Prosecutions and, as a judge of the ACT Supreme Court, the second edition has sat on my bookshelf right next to my computer, ever ready to be dipped into when criminal cases are before me.” When I was a young barrister, specialising in appellate crime, I made extensive use of a wide variety of criminal law texts, of various kinds. These ranged from purely practitioners’ works such as Archbold, to scholarly treatises of a more philosophical bent. My “Bible” then was Glanville Williams, Criminal Law – The General Part. I also had, and continue to have, a high regard for Smith and Hogan’s Criminal Law (now in its fourteenth edition, under the excellent stewardship of Professor David Ormerod). I found nothing better as a teaching tool than Glanville Williams’ Textbook of Criminal Law (now in its fourth edition, and under the care of Professor Dennis Baker). When I started in the law, Australian criminal law texts were in their infancy. I refer of course to Brett and Waller’s Cases and Materials in Criminal Law 1 (later Waller and Williams) and Howard’s Criminal Law. All these works served their purpose admirably. They were analytically sound, and reflected a deep and principled approach to the vast body of criminal law doctrine that was by then continually developing. They are all works that I still have on my shelf, and use constantly. I also have several editions of Bronitt and McSherry in my personal library. This text had never been particularly easy to work with, and the fourth edition is by no means different. That is not because it is badly written. It is rather because the authors will not compromise, and substitute simplicity for analytical rigour and accuracy. The attention to detail can be frustrating, and there are some parts of the text with which I profoundly disagree. Nonetheless, I find this work to be of inestimable value. There is a wealth of richly rewarding analysis of some of the most troubling questions that confront appellate judges on a regular basis. As judges, we depend greatly upon the synthesis and rigour of legal scholars who have the time, and passion, to delve deeply into areas that we can only cursorily pass over. Bronitt and McSherry have fulfilled their promise to focus upon not just exposition of legal doctrine, but a comparative and interdisciplinary approach to many of these vexed questions. This new edition contains a number of valuable, though contestable, insights. For example, it challenges the assumption that “general principles” represent the full extent of worthwhile theorising about the criminal law. It asserts that as “moral philosophy” criminal law doctrine appears to be a 1

Melbourne, Butterworths, 1962. vi

Foreword

“spectacular failure”, a proposition that may be true, but if I may say so, does not trouble me in the slightest. I have never regarded the criminal law as anything like a branch of moral philosophy. The authors note that some scholars increasingly dispute the traditional disciplinary segregation of criminal law from criminal justice studies and criminology. For my part, that matters little. Such segregation is pedagogically useful, though a more holistic approach may have merit. The authors raise a number of contentious issues. They challenge the “balancing model” reflecting the debate between the value of fundamental human rights, as against so-called collective or social interests which are designed to remedy disadvantage in marginalised communities. They seemingly endorse criticisms of traditional criminal law scholarship said to be exemplified by “liberal accounts of criminal law”, and embrace some of the more radical ideas developed under the rubric of critical legal studies. I do not share their enthusiasm for much of this work. However, I accept, of course, that there is value in being confronted with challenges to basic assumptions. Nor do I share with the authors their somewhat dismissive attack upon “new natural law theorists” such as Finnis. His work seems to me to be far more subtle, and important, than the value they ascribe to it. These criticisms aside, the new edition contains much that is distinctive and illuminating. The authors’ discussion of the pitfalls of codification is particularly helpful, and of great importance at a time when we seem to be moving inexorably in that direction. When the authors eventually move away from abstract theory, and into the realm of orthodox exposition of legal doctrine, their work takes on a different, and in my opinion, more valuable, aspect. For this is in every sense a scholarly text. The discussion of immensely complex legal principles such as those which emerge from cases like He Kaw Teh v The Queen 2 is perceptive, and extraordinarily useful. So too is the discussion of voluntariness, and concepts such as intention, recklessness, and negligence. The abolition of provocation in Victoria, as a partial defence to murder, was and remains contentious. The authors’ analysis of this doctrine is particularly revealing, at least for those jurisdictions where the defence is still available. I find it comforting to see the praise afforded to a simpler test for self-defence, along the lines of that propounded in Zecevic v DPP (Vic), 3 as compared with the poorly conceived attempts at legislative recasting resulting in, for example, the creation of defensive homicide in Victoria, now fortunately consigned to history. Also welcome is the splendid treatment of complicity, and the entirely valid criticism levelled at the High Court’s persistent, and seemingly stubborn, refusal to reconsider the plainly irrational doctrine of extended common purpose. It is unnecessary to say any more about the treatment afforded to specific crimes, such as murder, manslaughter and various other forms of violence. There is nothing shallow about the analysis. In every case the authors have chosen, properly, to delve deeply into the relevant case law, and subject it to proper and careful evaluation. I particularly wish to comment about their treatment of sexual offences. These make up a large proportion of the trials conducted in the County Court of Victoria. The law governing even an offence as well established at common law as rape has become extraordinarily complex, almost unmanageably so. The chapter dealing with sexual offences could easily have been, but is not, a polemic. It is rather a nuanced and carefully considered treatment with many valuable insights. 2 3

(1985) 157 CLR 523. (1987) 162 CLR 645. vii

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For example, the comment (not of course original to the authors, but fully explored by them) that in the context of rape, the strict dualism between physical and fault elements which runs through the criminal law seems to break down is undoubtedly valid. It may explain, in part, why so many appeals against conviction, based upon judicial misdirection, succeed. From the point of view of orthodox legal reasoning, I agree entirely with the authors that the dissenting views of Heydon and Bell JJ in PGA v The Queen, 4 are entirely to be preferred to the views of the majority. This new edition should be part of every practising criminal lawyer’s library. It goes without saying that every judge and magistrate who deals with the criminal law on a regular basis should use it whenever confronted with a difficult legal problem. It is unremittingly challenging. I suspect first year law students will find it beyond their capacity to fully grasp. Better students will, no doubt, find it more to their taste, as of course will later year students. It is a provocative work, pungently written, which repays careful reading. ‘Roddy’ Meagher would not have had this book in his library. If by some chance of fate it had been there, he would not have read it. The authors should regard that as a badge of honour and as being, of itself, sufficient commendation of its worth. I thank them for doing me the honour of having asked me to write this foreword. They must have known, or at least suspected (in its wholly subjective sense), that I would not approach that task uncritically. January 2017

4

(2012) 245 CLR 355. viii

PREFACE Given the pace of reforms to Australian criminal law, over six years between editions for a criminal law textbook is probably far too long a gap. However, this period has provided us with an opportunity to undertake a thorough update and revision. Justice Mark Weinberg AO’s foreword has obviated the need to rehearse our original intent which, although formed at the end of the last century, continues to be refined and extended over successive editions. The foreword, for which we commend and thank Justice Weinberg, offers readers a critical assessment of how successful we have been in achieving our aim of providing a relevant and provocative account of the criminal law in Australia. Australian criminal law remains a messy patchwork of legal norms, substantive and procedural, which cross both internal/local and external/national borders. One constant however is that criminal laws, at every level, continue to be shaped by political demands and media campaigns for better laws and police powers to solve society’s serious problems. In that sense, the modern criminal law functions as an ultimate “safety blanket” for community fears about new and emerging threats, both actual and perceived. A continuing trend in Australia, evident in many of the chapters, is the ever-expanding boundaries of federal criminal law. This creeping federalisation was stimulated by security concerns following the terrorist attacks by al-Qaeda on the United States on the 11 September 2001. While state responses to security threats are neither novel or extraordinary, it is notable that the expansion of federal criminal law thus far shows no signs of curtailment. The state of constant legal flux in the criminal law is matched by the emergence of “new” crime threats. Since the last edition, technological change has intensified demands for new cybercrime laws: the seismic shift of criminality online is reflected in the latest data suggesting that 21st century “burglars” are more likely to be cyber hackers than safe crackers. It is not merely that criminals’ “tools of the trade” have changed. Technology is also producing new forms of sexual harm – cyber assaults and degradation – as revealed in the emergence of new “revenge porn” offences. Theoretical debates about the proper limits of the criminal law and state intervention into the personal lives of citizens remain as relevant today as they did during the debates in the post war period concerning the legality of consensual sex between adult males, abortion, prostitution and obscenity. These debates reflected the perennial tensions between the criminal law respecting individual freedoms and liberties on the one hand, and its important role in reflecting and setting standards. Today, these standards are more likely to be expressed in secular rather than religious or moral terms, and since the first edition of this book, human rights claims have secured greater attention in debates about the proper limits of criminal law. Subjecting the criminal law to human rights scrutiny is no longer a purely “academic” exercise, but is increasingly providing legal anchors for submissions to courts by practitioners as well as judgments. In our view, the need to rethink how criminal law should be understood and taught; to link practice and theory; and to bring other disciplines’ perspectives to bear on hard questions of policy and principle remains unchanged. In that respect, we have continued to profess and confess our intellectual biases in favour of psychology, criminology, sociology and legal history. But we must also concede failure in relation to our earlier ambition to foster the development of a national approach to the study of criminal law, one informed by a national approach to law reform and the High Court’s commitment to articulate general principles derived from a unitary common law of Australia. Not only did the Model Criminal Law project fail to live up to its liberal promise, the teaching of criminal law, with too few notable exceptions, seems to have retreated to jurisdiction-specific syllabi and textbooks. The legal apartheid between “code” and “common law” remains entrenched. On the positive side, such pluralism ensures that there is considerable diversity in approaches to common problems in Australia, ongoing debates between jurisdictions about the best model, and whether a federal or ix

Principles of Criminal Law

indeed, a coordinated national approach is warranted. This diversity in Australia may not make criminal law and its administration an efficient system, but it does make it an interesting one in terms of policy experimentation. We hope that this new edition continues to pique the interest of criminal law students, academics and practitioner communities. Acknowledgments There are many people and institutions to thank in the making of such a big book, including foremost our partners and families. An update of this magnitude involves a team of research assistants. Simon would like to thank Michael Potts and Zoe Brereton, for their research assistance which was completed with passion and commitment, but also with an independent critical eye. He is also grateful to the contributions to the white collar crime updates (including a useful table) made by Jordan English, Sam Hickey and Abigail Mawby. Dr Mel O’Brien, Research Fellow at The University of Queensland, greatly assisted with verifying, updating and refining our claims about international criminal law. Bernadette would like to thank Andrew Butler for his incomparable, painstaking and unstinting help with research, cross-referencing and checking of proofs and Kathleen Patterson, for co-ordinating revisions to draft chapters and keeping everything on track. We also give out heartfelt thanks to the editorial and production team at Thomson Reuters, particularly Elizabeth Gandy and Lara Weeks for their hard work, patience and commitment to getting this edition to fruition. Finally, to our colleagues who have been waiting patiently for another edition, we hope it was worth the wait! Simon Bronitt Bernadette McSherry February 2017

x

TABLE OF CONTENTS Foreword ........................................................................................................................................... v Preface ............................................................................................................................................. ix Table of Cases .............................................................................................................................. .. xiii Table of Statutes .......................................................................................................................... .. xlv

Part I: Theory and Principles Chapter 1: Theory and the Criminal Law .............................................................. .. 3 Chapter 2: General Principles .................................................................................. 79 Chapter 3: Principles of Criminal Responsibility ................................................ 177

Part II: Justifications and Excuses Chapter 4: Mental State Defences ...................................................................... .. 249 Chapter 5: Partial Defences ................................................................................. .. 305 Chapter 6: Self-Help Defences ............................................................................. .. 347

Part III: Extending Criminal Responsibility Chapter 7: Complicity ........................................................................................... .. 395 Chapter 8: Inchoate Offences .............................................................................. .. 457

Part IV: Specific Crimes Chapter 9: Unlawful Killing ................................................................................. .. 521 Chapter 10: Offences Against the Person ............................................................ 581 Chapter 11: Sexual Offences ................................................................................ .. 635 Chapter 12: Property Offences .............................................................................. 757 Chapter 13: Public Order ..................................................................................... .. 859 Chapter 14: Drug Offences .................................................................................. .. 945 Chapter 15: International and Transnational Crimes ...................................... 1029 Index .................................................................... .. ................................................................. 1141 xi

TABLE OF CASES A A v DPP [1997] Crim LR 125 .......................................................................................................................... 3.25 A v United Kingdom (1998) 27 EHRR 611 .................................................................................................. 10.135 A (Children) (conjoined twins: surgical separation), In Re [2001] 2 WLR 480 ................................................ 6.155 ABC Developmental Learning Centres Pty Ltd v Wallace [2006] VSC 171 ....................................................... 3.45 AC Hatrick Chemicals Pty Ltd (unreported, 29/11/1995, VSC, Hampel J) ....................................................... 3.50 ADT v United Kingdom [2000] ECHR 35765/97 ........................................................................................... 2.150 Abbott v The Queen [1977] AC 755 ............................................................................................................... 6.70 Abbott v The Queen (unreported, 25/7/1995, WACCA, No 98 of 1995) .................................................... 10.160 Adam (1999) 106 A Crim R 510 ..................................................................................................................... 7.45 Adams (1812) R & R 225 ............................................................................................................................. 7.105 Adams v Eta Foods Ltd (1987) 19 FCR 93 ...................................................................................................... 3.50 Ahern v The Queen (1988) 165 CLR 87 ......................................................................................................... 8.85 Ahmadi v The Queen [2011] WASCA 237 ..................................................................................................... 6.160 Aickin (2005) 157 A Crim R 515 ...................................................................................................... 11.55, 11.110 Air Canada v United Kingdom (1995) 20 EHRR 150 ................................................................................... 14.200 Airedale NHS Trust v Bland [1993] 2 WLR 316; [1993] AC 789 ................................. 9.45, 9.75, 9.90, 9.95, 9.190 Albert v Lavin [1982] AC 546 ....................................................................................................................... 13.65 Albis (1913) 9 Cr App R 158 .......................................................................................................................... 5.40 Aleksovski v The Queen [1979] WAR 1 ........................................................................................................... 6.55 Alford v Riley Newman Ltd (1934) 34 SR(NSW) 261 ...................................................................................... 3.45 Allen v United Carpet Mills Pty Ltd [1989] VR 323 ......................................................... 3.45, 3.260, 3.270, 3.305 Allsop (1976) 64 Cr App R 29 ...................................................................................................................... 8.140 Allwood (1975) 18 A Crim R 120 ................................................................................................................... 5.35 American Booksellers v William Hudnutt III, Mayor, City of Indianapolis 771 F 2d 323 (1985) .................... 11.240 Ancuta (1990) 49 A Crim R 307 ..................................................................................................................... 7.75 Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198 ...................................................................... 13.230 Anderton v Ryan [1985] AC 560 ................................................................................................................... 8.205 Andrews v DPP [1937] AC 576 .................................................................................... 3.225, 9.150, 9.170, 9.175 Andrews Weatherfoil Ltd, Sporle and Day (1971) 56 Cr App R 31 ................................................................. 7.110 Annakin (1988) 37 A Crim R 131 ................................................................................................................... 7.65 Ansari v The Queen (2010) 241 CLR 299 ................................................................................. 8.75, 8.150, 8.165 Anthony, Re (2004) 142 A Crim R 440 ......................................................................................................... 2.225 Applicant A v Minister of Immigration and Ethnic Affairs (1997) 71 ALJR 381 ................................................ 2.150 Arnol (1981) 7 A Crim R 291 ........................................................................................................................ 4.170 Artugrul v The Queen (2012) 247 CLR 170 .................................................................................................... 6.85 Arulthilakan v The Queen (2003) 203 ALR 259 ............................................................................................. 3.110 Attorney-General v Able [1984] 1 QB 795 .................................................................................. 7.30, 7.65, 9.200 Attorney-General v PYA Quarries Ltd [1957] 2 QB 169 ............................................................................... 13.135 Attorney-General (Northern Ireland) v Gallagher [1963] AC 349 .................................................................. 4.185 Attorney-General (Qld) (Ex rel Kerr) v T (1983) 57 ALJR 285 ........................................................................... 9.30 Attorney-General (Hong Kong) v Lee Kwong-kut [1993] AC 951 .................................................................. 2.165 Attorney-General’s Reference (No 1 of 1975) [1975] QB 773 ....................................................... 7.25, 7.30, 7.65 Attorney-General’s Reference (No 6 of 1980) [1981] QB 715 ........................................................ 10.140, 10.165 Attorney-General’s Reference (No 1 of 1983) [1984] 3 WLR 686 ................................................................ 12.190 Attorney-General’s Reference (No 3 of 1983) [1985] QB 242 ..................................................................... 13.215 Attorney-General’s Reference (No 1 of 1985) [1986] 1 QB 491 .................................................................. 12.155 Attorney-General’s Reference (No 3 of 1994) [1997] 3 WLR 421; [1996] QB 581 ................................ 3.190, 9.30 Attorney-General’s Reference (No 1 of 1996): Re David John Weiderman (unreported, 26/2/1998, Tas SC CCA, Cox CJ, Underwood, Wright, Crawford and Zeeman JJ, No 12/98) ..................... 4.170, 4.180, 4.200 Aubertin v Western Australia (2006) 167 A Crim 1 ...................................................................................... 11.145 August v Fingleton [1964] SASR 22 ................................................................................................................ 4.95 Austin (1996) A Crim R 570 ........................................................................................................................ 11.195 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 .............................. 2.240 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 ................................... 13.80, 15.225 Australian Competition and Consumer Commission v Australian Egg Corp Ltd [2016] FCA 69 ....................... 3.40 Australian Competition and Consumer Commission v Davies [2015] FCA 1017 ............................................. 7.65 Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 3) (2007) 244 ALR 673 ............................................................................................................................................. 3.65 Australian Fisheries Management Authority v Mei Ying Su (2009) 255 ALR 454 ................................. 3.285, 3.290 xiii

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Australian Iron and Steel Pty Ltd v Environment Protection Authority (1992) 29 NSWLR 497 ............ 3.280, 3.305 Australian Stevedoring Industry Authority v Overseas and General Stevedoring Co Pty Ltd (1959) 1 FLR 298 .......................................................................................................................................................... 3.45

B B v The Queen (1960) 44 Cr App R 1 ............................................................................................................. 3.25 B v The Queen (1992) 63 A Crim R 225 ....................................................................................................... 2.190 B v The Queen [2015] NSWCCA 103 ........................................................................................................... 6.165 BP v The Queen [2006] NSWCCA 172 ........................................................................................................... 3.25 Ball v McIntyre (1966) 9 FLR 237 .................................................................................................. 13.165, 13.170 Banditt v The Queen (2005) 219 CLR 43 .................................................................................................... 11.160 Bannen (1844) 1 Car & K 295 ..................................................................................................................... 7.105 Baragith (1991) 54 A Crim R 240 ................................................................................................................... 5.60 Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 ............................................................................... 2.120 Barker v Burke [1970] VR 884 ........................................................................................................... 4.100, 4.195 Barker v The Queen (1983) 153 CLR 338 ................................................................................................... 12.240 Barlow v The Queen (1997) 188 CLR 1 ............................................................................................. 7.120, 7.185 Barrett v Coroner’s Court (SA) [2010] SASCFC 70 .......................................................................................... 9.30 Barton v Armstrong [1969] 2 NSWLR 451 .............................................................................. 10.30, 10.35, 10.40 Barton v The Queen (1980) 147 CLR 75 ........................................................................................... 2.115, 2.145 Battle v The Queen (unreported, 26/2/1993, WACCA, 149 of 1992) .............................................................. 4.95 Bayliss, Re (unreported, 24/5/1985, QSC, McPherson J, 376 of 1985) ......................................................... 9.225 Beal v Kelley [1951] 2 All ER 763 .................................................................................................................. 10.50 Beatty v Gillbanks (1882) 9 QBD 308 .............................................................................................. 13.85, 13.210 Becerra (1975) 62 Cr App R 212 .................................................................................................................... 7.90 Beckford v The Queen [1987] 3 WLR 611 ....................................................................................................... 6.30 Bedi v The Queen (1993) 61 SASR 269 ...................................................................................................... 10.180 Bedkinov (1997) 95 A Crim R 200 ................................................................................................................ 9.140 Beech (1912) 7 Cr App R 197 ...................................................................................................................... 10.40 Beer v McCann [1993] 1 Qd R 25 .............................................................................................................. 10.140 Benbrika v R (2010) 29 VR 593 ...................................................................................................................... 8.30 Bennett v The Queen (1991) Tas R 11 ............................................................................................... 3.235, 3.240 Bennett (1989) 45 A Crim R 45 ............................................................................................ 4.170, 4.180, 10.100 Bergin v Brown [1990] VR 888 ..................................................................................................................... 5.140 Bergin v Stack (1953) 88 CLR 248 ..................................................................................................... 3.280, 3.295 Betts and Ridley (1930) 22 Cr App R 148 ....................................................................................................... 7.30 Billinghurst [1978] Crim LR 553 ................................................................................................................. 10.160 Binskin v Watson (1990) 48 A Crim R 33 ...................................................................................................... 3.275 Bird v Jones (1845) 7 QB 742 .................................................................................................................... 10.185 Bishopsgate Motor Finance Corp v Transport Brakes Ltd [1949] 1 KB 332 .................................................. 12.110 Black v Corkery (1988) 33 A Crim R 134 .................................................................................................... 13.200 Blackwell v The Queen (2011) 81 NSWLR 119 ................................................................................ 10.55, 10.100 Bleasdale (1848) 2 Car & K 765 ................................................................................................................... 7.105 Bolton, Re; Ex parte Beane (1987) 162 CLR 514 ........................................................................................... 13.90 Bonollo [1981] VR 633 ................................................................................................................................. 12.65 Borg v The Queen [1972] WAR 194 ................................................................................................... 7.120, 7.135 Boucher v The King [1951] 2 DLR 369 ....................................................................................................... 15.225 Boughey v The Queen (1986) 161 CLR 10 ......... 2.25, 3.180, 3.205, 4.180, 9.120, 9.140, 10.55, 10.115, 10.140 Bourne (1952) 36 Cr App R 125 .................................................................................. 7.110, 7.115, 7.130, 7.150 Bowker v Premier Drug Co Ltd [1928] 1 KB 217 ............................................................................................ 7.25 Brady v Schatzel; Ex parte Brady [1911] St R Qd 206 ................................................................................... 10.35 Brambles Holdings Ltd v Carey (1976) 15 SASR 270 ...................................................................................... 3.50 Bratty v Attorney-General (Northern Ireland) [1963] AC 386 .......... 2.175, 2.185, 4.30, 4.95, 4.100, 4.120, 4.140 Bremner v Walker (1885) 6 LR (NSW) 276 .................................................................................................. 11.225 Brennan v Bass (1984) 35 SASR 311 ............................................................................................................. 6.125 Brennan v The King (1936) 55 CLR 253 ............................................................................................ 7.120, 7.135 Brian William Shaw, Application by (2001) 4 VR 103 .................................................................................... 2.110 Brightwater Care Group v Rossiter (2009) 40 WAR 84 .................................................................................... 9.90 Briginshaw v Briginshaw (1938) 60 CLR 336 ..................................................................................... 2.185, 13.20 Brimblecombe v Duncan; Ex parte Duncan [1958] Qd R 8; (1958) 52 QJPR 83 ............................................ 3.235 Brisac and Scott (1803) East ......................................................................................................................... 7.105 British American Tobacco Australia Services Ltd v Cowell (Representing the Estate of McCabe (Dec’d)) (2002) 7 VR 524 ....................................................................................................................................... 3.60 Britten v Alpogut [1987] VR 929 .............................................................................. 8.20, 8.35, 8.65, 8.75, 8.205 Bromage, Re [1991] 1 Qd R 1 ...................................................................................................................... 4.215 xiv

Table of Cases

Broome v Perkins (1986) 85 Cr App R 321 .......................................................................................... 4.95, 4.100 Brown v Scott [2003] 1 AC 681 ................................................................................................................. 14.125 Brown v Spectacular Views Pty Ltd [2011] VSC 197 ...................................................................................... 10.35 Brown [1994] AC 212 .................................................................................................................................. 11.20 Brown (2007) 171 A Crim R 345 .................................................................................................................. 7.120 Browning v Barrett [1987] Tas R 122 ............................................................................................................ 3.275 Brownlee v The Queen (2001) 207 CLR 278 .................................................................................................. 2.90 Brutus v Cozens (1972) 56 Cr App R 799 ........................................................................................ 12.50, 13.165 Budd, Re [1962] Crim LR 49 .......................................................................................................................... 4.95 Bugmy v The Queen (2013) 249 CLR 571 ....................................................................................... 2.220, 13.195 Bull v R (2000) 201 CLR 443 ...................................................................................................................... 11.180 Bull (1845) 1 Cox 281 ................................................................................................................................. 7.105 Bunning v Cross (1978) 141 CLR 54 ....................................................................... 1.145, 2.245, 14.215, 14.220 Burns v Nowell (1880) 5 QBD 444 ............................................................................................................... 3.335 Burns v Seagrave [2000] NSWSC 77 ............................................................................................. 13.180, 13.190 Burns v The Queen (2012) 246 CLR 334 ............................................... 9.140, 9.150, 9.155, 9.165, 9.175, 9.190 Burns (1984) 79 Cr App R 173 .......................................................................................................... 8.115, 8.180 Bush, Governor of Florida v Schiavo 543 US 1121 (2005) .............................................................................. 9.95 Butcher (1858) Bell 6 ................................................................................................................................... 7.105 Butt (1884) 15 Cox 564 ............................................................................................................................... 7.105 Buttigieg v The Queen (1993) 69 A Crim R 21 ............................................................................................... 5.20

C C v S [1988] QB 135 ...................................................................................................................................... 9.30 C (a minor) v DPP [1994] 3 WLR 888 ............................................................................................................. 3.25 C (a minor) v DPP [1995] 2 WLR 383 ............................................................................................................. 3.25 C (adult: refusal of medical treatment), Re [1994] 4 All ER 819 ...................................................................... 9.45 CES v Superclinics Australia Pty Ltd (1995) 38 NSWLR 47 ............................................................................ 9.225 CR v United Kingdom and SW v United Kingdom (1996) 21 EHRR 363 ............................................. 2.150, 11.65 CTM v The Queen (2008) 247 ALR 1 ................................................................................................ 3.275, 3.300 Cain v Doyle (1946) 72 CLR 409 ....................................................................................................... 7.100, 7.110 Callaghan v The Queen (1952) 87 CLR 115 ........................................................................... 3.225, 9.160, 9.175 Cameron (1990) 47 A Crim R 397 ..................................................................................................... 4.170, 4.180 Camilleri (2001) 119 A Crim R 106 ............................................................................................................... 7.110 Campbell v The Queen [1981] WAR 286 ...................................................................................................... 3.110 Campbell (1986) 84 Cr App R 255 ............................................................................................................... 5.105 Campbell (2011) 81 NSWLR 119 ................................................................................................................. 10.55 Canadian Dredge and Dock Co Ltd v The Queen (1985) 19 DLR (4th) 314; 19 CCC (3d) 1 .................. 3.40, 3.45 Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) [2004] 1 SCR 76 ....... 10.135 Cannavan v Lettvale Pty Ltd [2003] QCA 528 .............................................................................................. 2.245 Carriers Case (1473) YB 13 Edw ................................................................................................................... 12.20 Carroll v Lergesner [1991] 1 Qd R 206 ............................................................................................ 10.140, 11.20 Carter v Walker (2010) 32 VR 1 .................................................................................................................... 4.210 Carter and Savage; Ex parte Attorney-General (1990) 47 A Crim R 55 .......................................................... 7.155 Case Stated by DPP (No 1) (1993) 66 A Crim R 259 ................................................................................... 11.110 Catalano (1992) 61 A Crim R 323 ................................................................................................................ 8.120 Censori v The Queen [1983] WAR 89 .................................................................................................. 4.210, 5.40 Chadderton (1908) 1 Cr App R 229 ............................................................................................................. 11.50 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 ..................................................................... 2.175, 2.180 Chan Kau v The Queen [1955] AC 206 ............................................................................................. 2.175, 2.180 Chan Wing-Siu v The Queen [1985] AC 168 ................................................................................................ 7.135 Charlie v The Queen (1999) 199 CLR 387 ......................................................................................... 2.25, 11.145 Chayna (1993) 66 A Crim R 178 .................................................................................................................... 5.85 Cheatle v The Queen (1993) 177 CLR 541 ..................................................................................................... 2.90 Chee Ming Ng v The Queen (2003) 197 ALR 10 ............................................................................................ 2.90 Cheng v The Queen (2000) 203 CLR 248 ....................................................................................... 2.190, 14.140 Cheung v The Queen (2001) 209 CLR 1 ...................................................................................................... 2.190 Chhay (1994) 72 A Crim R 1 ................................................................................................................. 5.15, 5.35 Chicago v Morales 527 US 41 (1999) ......................................................................................................... 13.115 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 ...................... 2.185 Chief Executive of the Department of Corrections v All Means All [2014] NZHC 1433 .................................. 9.190 Chiou Yaou Fa v Morris (1987) 46 NTR 1 ..................................................................................................... 3.235 Christie v Foster Brewing Co Ltd (1982) 18 VLR 292 ...................................................................................... 3.45 Chung v The Queen (2007) 175 A Crim R 579 ............................................................................................. 8.140 Churchill v Walton [1967] 2 AC 224 ............................................................................................................. 8.150 xv

Principles of Criminal Law

Clark [1980] 2 A Crim R 90 ............................................................................................................................ 6.90 Clarkson and Lyon (1986) 24 A Crim R 54 .................................................................................................. 12.100 Claydon [2006] 1 Cr App R 20 ..................................................................................................................... 8.180 Clayton v The Queen; Hartwick v The Queen; Hartwick v The Queen (2006) 231 ALR 500 ...... 7.05, 7.110, 7.120, 7.135, 7.140 Cleary v Booth [1893] 1 QB 465 ................................................................................................................ 10.135 Clifford (1845) 2 Car & K 202 ...................................................................................................................... 7.105 Clough (1992) 64 A Crim R 451 ................................................................................................................... 7.150 Coco v The Queen (1994) 179 CLR 427 ......................................................................................... 2.240, 13.125 Coffin v Smith (1980) 71 Cr App R 221 ........................................................................................................ 10.70 Cohen (No 2) [2007] WASCA 279 .............................................................................................................. 11.195 Coleman v Power (2004) 220 CLR 1; 209 ALR 182; [2004] HCA 39 ............ 6.35, 11.210, 11.220, 13.145, 13.160 Collins v State Rail Authority (NSW) (1986) 5 NSWLR 209 ............................................................................. 3.50 Collins v Wilcock [1984] 1 WLR 1172 ...................................................................... 10.50, 10.70, 10.115, 10.140 Colonel Aird, Re; Ex parte Alpert (2004) 220 CLR 308 .................................................................................. 15.25 Colonial Petroleum Oil Pty Ltd, Ex parte; Re Byrne (1944) 44 SR (NSW) 306 .................................................. 3.50 Colosimo v DPP [2006] NSWCA 293; (2005) 64 NSWLR 645 ..................................................................... 13.215 Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 .................................................. 14.200 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 .......................... 1.20, 2.120 Conlon (1993) 69 A Crim R 92 ................................................................................................... 4.210, 6.30, 6.45 Connolly v Willis [1984] 1 NSWLR 373 ....................................................................................................... 13.210 Connors v Craigie (1994) 76 A Crim R 502 ................................................................................... 13.155, 13.165 Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 .......................... 2.155 Cook’s Hotel Pty Ltd v Pope (1983) 34 SASR 292 ........................................................................................... 3.50 Coombes (1785) 1 Leach 388 ...................................................................................................................... 7.105 Coomer (1989) 40 A Crim R 417 ................................................................................................................. 9.155 Cooper v ICI Australia Operations Pty Ltd (1987) 31 A Crim R 67 ................................................................. 3.275 Cooper v McKenna; Ex parte Cooper [1960] Qd R 406 .................................................................................. 4.95 Cooper v The Queen (1979) 51 CCC (2d) 129 .............................................................................................. 4.55 Cooper (1846) 8 QB 533 ............................................................................................................................. 7.105 Cordwell v Carley (1985) 31 A Crim R 291 ..................................................................................................... 4.95 Coulter v The Queen (1988) 164 CLR 350 ................................................................................................. 10.100 Coward v Baddeley (1859) 4 H&N 478 ..................................................................................................... 10.115 Cox v Riley (1986) 83 Cr App R 54 ............................................................................................................. 15.250 Coyne v Dreyer (1991) 13 MVR 540 ............................................................................................................ 12.20 Crafter v Kelly [1941] SASR 237 ................................................................................................................... 7.180 Creek v Cairns Post Pty Ltd [2001] FCA 1007 ............................................................................................... 13.80 Crichton v Victorian Dairies Ltd [1965] VR 49 ............................................................................................... 3.285 Croton v The Queen (1967) 117 CLR 326 ....................................................................................... 12.25, 12.125 Crowe v Graham (1968) 121 CLR 375 ....................................................................................................... 11.230 Cruzan v Director, Missouri Dept of Health 497 US 261 (1990) ...................................................................... 9.90 Cufley v The Queen (1983) 78 FLR 359 ......................................................................................................... 5.10 Cundy v Le Cocq (1884) 13 QBD 207 ......................................................................................................... 3.255 Cunneen v Independent Commission Against Corruption [2014] NSWCA 421 ............................................. 8.145

D D (1997) 21 Crim LJ 40 ............................................................................................................................. 10.180 D’Arrigo (1991) 58 A Crim R 71 ................................................................................................................. 12.250 DPP v Blady [1912] 2 KB 89 ......................................................................................................................... 8.110 DPP v Camplin [1978] AC 705 ....................................................................................................................... 5.50 DPP v Carr (2001) 127 A Crim R 151 .......................................................................................................... 13.185 DPP v Doot [1973] AC 807 ................................................................................................................... 2.50, 2.60 DPP v Majewski [1977] AC 443 ................................................................................... 4.155, 4.165, 4.180, 10.55 DPP v McMaster (2008) 19 VR 191 .............................................................................................................. 9.250 DPP v Murdoch [1993] 1 VR 406 ............................................................................................................... 12.105 DPP v Newbury & Jones [1977] AC 500; [1976] 2 WLR 918 .............................................................. 9.140, 9.170 DPP v Nock [1978] AC 979 ............................................................................................................... 8.215, 8.220 DPP v Nock [1983] QB 1083 ........................................................................................................................ 8.220 DPP v Orum [1988] Crim LR 848 ............................................................................................................... 13.180 DPP v Polyukhovich (No 2) (1993) 171 LSJS 1 .............................................................................................. 15.60 DPP v Ray [1974] AC 370 ........................................................................................................................... 12.285 DPP v Rogers [1953] 2 All ER 644 ................................................................................................................. 10.50 DPP v Shannon [1975] AC 717 ......................................................................................................... 2.160, 8.120 DPP v Smith [1961] AC 290 .............................................................................................................. 9.120, 10.80 DPP v Smith [2006] 2 All ER 16 .................................................................................................................... 10.80 xvi

Table of Cases

DPP v Stonehouse [1978] AC 55; [1978] 168 ER 773 ........................................................ 7.105, 8.35, 8.40, 8.50 DPP v Withers [1975] AC 842 ........................................................................................ 8.85, 8.105, 8.130, 8.135 DPP (Cth) v Tan [2003] NSWSC 717 .......................................................................................................... 14.200 DPP (NT) v WJI (2004) 219 CLR 43; 210 ALR 276 .............................................................................. 2.25, 11.145 DPP (Northern Ireland) v Lynch [1975] AC 653; [1975] 2 WLR 641; [1975] 1 All ER 913 ........... 6.70, 6.80, 6.120, 6.165, 7.65 DPP (Northern Ireland) v Maxwell [1978] 3 All ER 1140; 1 WLR 1350 ........................... 7.65, 7.75, 7.150, 15.190 DPP (UK) v Beard [1920] AC 479 ...................................................................................................... 4.155, 4.200 DPP (UK) v Morgan [1976] AC 182 .................................... 2.175, 3.175, 4.180, 11.145, 11.150, 11.160, 11.175 DPP (Vic) v Cook [2015] VCC 895 ................................................................................................................ 11.75 DPP (Vic) v Warne [2014] VCC 733 .............................................................................................................. 11.75 DPP (Vic) (Reference No 1 of 1996) [1998] 3 VR 352 ............................................................................ 3.35, 3.50 DPP Reference (No 1 of 1991) (1992) 60 A Crim R 43 .................................................................................... 6.10 DPP Reference (No 1 of 1992) (1993) 65 A Crim R 197 ................................................................................ 11.40 DPP Reference No 1 of 2002 [2002] NTCCA 11 ......................................................................................... 11.160 Da Costa v The Queen (1968) 118 CLR 186 ................................................................................................... 5.70 Daire v Stone (1991) 56 SASR 90 ............................................................................................................... 13.155 Daniels v The Queen (1989) 1 WAR 435 ..................................................................................................... 11.145 Darkan v The Queen, Deemal-Hall v The Queen and McIvor v The Queen (2006) 227 CLR 373 ........ 7.120, 9.120 Darwin Bakery Pty Ltd v Sully (1981) 36 ALR 371 ......................................................................................... 3.275 Dau v Emanuele (unreported, 4/12/1995, FCA) ......................................................................................... 14.220 Davis v Bates (1986) 43 SASR 149 ................................................................................................................ 3.250 Davis v Chief of Army (2011) 278 ALR 199 .................................................................................... 10.140, 10.165 Davis v Lisle [1936] 2 KB 434 ....................................................................................................................... 10.70 Davis, Ex parte (1871) 24 LT 547 ................................................................................................................. 13.20 Dawson v The Queen (1961) 106 CLR 1 ........................................................................................... 2.180, 7.155 Dearnley v The King [1947] St R Q 51 ............................................................................................... 4.200, 4.220 Deepak Gulati v State of Haryana (2013) 7 SCC 675 .................................................................................. 11.125 Defiance Enterprises Pty Ltd v Collector of Customs (Queensland) (1990) 96 ALR 697 ................................. 3.235 Dennis v Pight (1968) 11 FLR 458 ......................................................................................................... 7.50, 7.65 Devine v The Queen (1967) 119 CLR 506 .................................................................................................... 13.20 Devine v The Queen [1982] Tas R 155 ......................................................................................................... 10.80 Dharmasena v The King [1951] AC 1 ........................................................................................................... 8.120 Dickson v The Queen (2010) 241 CLR 491 .................................................................................................... 8.95 Dietrich v The Queen (1992) 177 CLR 292 ............................................. 1.145, 2.80, 2.130, 2.135, 2.145, 2.150 Dilip Kumar v State of Bihar (2005) AIR SC 203 .......................................................................................... 11.125 Director General of Fair Trading v Pioneer Concrete (UK) Ltd [1995] 1 AC 456 .............................................. 3.50 Doney v The Queen (1990) 171 CLR 207 .................................................................................................... 2.190 Donnelly v Jackman [1970] 1 All ER 987 .......................................................................................... 10.70, 10.115 Doorson v The Netherlands (1996) 22 EHRR 330 ......................................................................................... 2.135 Dover v Doyle (2012) 34 VR 295 .................................................................................... 4.85, 4.95, 4.140, 4.170 Dowey (1868) 11 Cox 115 .......................................................................................................................... 7.105 Downey v The Queen [1992] 2 SCR 10 ...................................................................................................... 14.125 Du Cros v Lambourne [1907] 1 KB 40 ........................................................................................................... 7.50 Dudgeon v United Kingdom [1981] ECHR 7525/76; 45 Eur Ct HR (ser A) (1981); 4 Eur HR Rep 149 (1982) ......................................................................................................................................... 2.150, 2.250 Dudley and Stephens (1884) 14 QBD 273 ................................................................................................... 6.150 Duffy v The Queen [1981] WAR 72 ................................................................................................... 4.180, 10.55 Dugan v Mirror Newspapers Ltd (1979) 142 CLR 583 .................................................................................... 2.95 Duncan v Jones [1936] 1 KB 218 ...................................................................................................... 10.70, 13.85 Dunn v The Queen (No 7) [2013] WASC 305 ............................................................................................... 8.190 Duvuvier v The Queen (1982) 29 SASR 217 ............................................................................................... 10.130 Dziduch v The Queen (1990) 47 A Crim R 378 .............................................................................................. 6.60

E E (A Child) v The Queen (1994) 76 A Crim R 343 ....................................................................................... 13.180 Eatock v Bolt [2011] FCA 1103 ..................................................................................................................... 13.80 Edelbrand Pty Ltd v H M Australia Holdings Pty Ltd [2012] NSWCA 31 .......................................................... 3.50 Edwards v Raabe [2000] VSC 471 ................................................................................................................ 13.85 Edwards v The Queen [1973] AC 648 ................................................................................................... 5.10, 5.35 Electrolux Home Products Pty Ltd v Delap Impex Ltd [2013] FCA 600 ........................................................... 3.50 Emery (1978) 18 A Crim R 49 ............................................................................................. 6.70, 6.75, 6.80, 6.90 Emmett v Lyne (1805) 1 Bos & PNR 255 .................................................................................................... 10.185 English (1993) 68 A Crim R 96 ..................................................................................................................... 8.205 Entick v Carrington (1765) 95 ER 807 .......................................................................................................... 2.240 xvii

Principles of Criminal Law

Environment Protection Agency v N (1992) 26 NSWLR 352 ......................................................................... 3.250 Evans v State of New South Wales [2008] FCAFC 130 ................................................................................ 13.210 Evenett (1987) 24 A Crim R 330 ................................................................................................................. 12.105 Evgeniou v The Queen [1965] ALR 209 ........................................................................................................ 9.175 Excell v Dellaca (1987) 26 A Crim R 410 .................................................................................................... 14.155

F F v Padwick [1959] Crim LR 439 .................................................................................................................... 3.25 F (mental patient: sterilisation), Re [1990] 2 AC 1 .............................................. 6.150, 6.165, 6.175, 6.180, 9.90 FP v The Queen (2012) 224 A Crim R 82 .................................................................................................... 11.165 Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 .......... 3.360, 3.365, 3.370, 10.20, 10.25, 10.30, 10.50, 10.55 Fairclough v Whipp [1951] 2 All ER 834 ....................................................................................................... 10.50 Falconer (1989) 46 A Crim R 83 ..................................................................................................................... 4.90 Falstein, Ex parte; Re Maher (1948) 49 SR(NSW) 133 ..................................................................................... 3.50 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 ..................................................................... 12.65 Fardon v Attorney-General (Qld) (2004) 223 CLR 575 .......................................................................... 1.85, 4.80 Fenton (1975) 61 Cr App R 261 ...................................................................................... 5.85, 5.90, 5.105, 5.165 Ferguson v The Queen [1979] 1 All ER 877 .................................................................................................. 2.180 Ferguson v Weaving [1951] 1 KB 814 ............................................................................................................ 7.25 Fernando (1992) 76 A Crim R 58 ................................................................................................................. 2.220 Field v Receiver of Metropolitan Police [1907] 2 KB 853 ............................................................................. 13.230 Field (1964) 48 Cr App R 335 ...................................................................................................................... 8.145 Filmer v Barclay [1994] 2 VR 269 ...................................................................................................... 3.205, 4.180 Fisher v Bennett (1987) 85 FLR 469 ........................................................................................................... 12.280 Fitzgerald v Kennard (1995) 38 NSWLR 184 .............................................................................................. 11.160 Fitzgerald v Montoya (1989) 16 NSWLR 164 ............................................................................................. 13.205 Fitzgerald (1999) 106 A Crim R 215 ........................................................................................................... 10.100 Flatman (1880) 14 Cox 396 ......................................................................................................................... 7.105 Flyger v Auckland City Council [1979] 1 NZLR 161 ...................................................................................... 4.195 Foley v Padley (1984) 154 CLR 349 ........................................................................................................... 13.145 Forbes v Traders’ Finance Corporation Ltd (1972) 126 CLR 429 ................................................................. 14.195 Forbutt v Blake [1981] 51 FLR 465 .............................................................................. 13.20, 13.70, 13.85, 13.90 Fraser v Dryden’s Carrying & Agency Co Pty Ltd [1941] VLR 103 .......................................................... 3.45, 3.50 Fraser v County Court of Victoria and Anor [2017] VSC 83 (21 March 2017) .............................................. 13.160 Freeman v CT Warne Pty Ltd [1947] VLR 279 ................................................................................................. 3.50 Fry v The Queen (1992) 58 SASR 424 ............................................................................................................ 6.35

G GBD v The Queen [2011] VSCA 437 .............................................................................................. 11.155, 11.160 GJ Coles and Co Ltd v Goldsworthy [1985] WAR 183 ............................................................... 3.50, 3.235, 3.290 Gallasso [1993]459 .................................................................................................................................... 12.100 Gardenal-Williams v The Queen [1989] Tas R 62 .......................................................................................... 5.140 Gardner (1979) 71 Cr App R 13 ................................................................................................................... 10.70 Gardner (1989) 42 A Crim R 279 ................................................................................................................... 5.35 Gardner; Re BWV (2003) 7 VR 487 ................................................................................................................. 9.95 Gaskin v United Kingdom (1990) 12 EHRR 36 .............................................................................................. 2.255 Gedeon and Dowe v Commissioner of the New South Wales Crime Commission [2008] HCA 43 ............... 14.220 Geoffrey Davis v DPP (SC No 782 of 1994) .................................................................................................. 2.135 Georgiadis v The Queen (2002) 11 Tas R 137 ............................................................................................... 8.105 Gerakiteys v The Queen (1984) 153 CLR 317 ................................................... 8.105, 8.110, 8.120, 8.130, 8.150 Gherashe v Boase [1959] VR 1 .......................................................................................................... 3.280, 3.290 Gibbins v The Queen (1918) 13 Cr App R 134 .................................................................................... 3.85, 9.165 Gibbon v Fitzmaurice [1986] Tas R 137 ........................................................................................................ 3.290 Giles (1827) 1 Mood CC 166 ....................................................................................................................... 7.105 Gillan and Quinton v The United Kingdom (unreported, 12/1/2010, EctHR, Application No 4158/05) ...... 15.150 Gillard v The Queen (2003) 219 CLR 1 ....................................................................... 7.120, 7.125, 7.135, 7.145 Giller v Procopets [2004] VSC 113 ............................................................................................................... 2.240 Giller v Procopets [2008] VSCA 236 ........................................................................................................... 11.205 Gilson v The Queen (1991) 172 CLR 353 ................................................................................................... 12.245 Giorgianni v The Queen (1985) 156 CLR 473 ...... 3.175, 3.200, 7.25, 7.50, 7.60, 7.65, 7.70, 7.140, 8.75, 8.150, 8.185 Given v CV Holland (Holdings) Pty Ltd (1977) 15 ALR 439 ........................................................................... 3.275 xviii

Table of Cases

Goddard v Osborne (1978) 18 SASR 481 ............................................................. 6.80, 6.90, 6.110, 6.125, 6.135 Gollan v Nugent (1987) 8 NSWLR 166 .......................................................................................................... 7.65 Google Inc v Vidal-Hall & Ors [2015] EWCA Civ 311 .................................................................................... 2.240 Google Spain SL Google Inc v Agencia Española de Protección de Datos, Mario Costeja González (Court of Justice of the European Union, C–131/12, 13 May 2014) ................................................................... 2.250 Gow v Davies (1992) A Crim R 282 .............................................................................................................. 4.210 Graham v The Queen [1984] VR 649 ............................................................................................................. 2.60 Grassby v The Queen (1989) 168 CLR 1 ....................................................................................................... 2.115 Gray v Cash Converters International Ltd (2014) 100 ACSR 29 ...................................................................... 7.25 Green v Sergeant [1951] VR 500 .................................................................................................................. 3.280 Green v The Queen (1971) 126 CLR 28 ....................................................................................................... 2.180 Green v The Queen (unreported, 8/11/1995, NSWCCA) ................................................................................ 5.55 Green v The Queen (1997) 191 CLR 334 ..................................................................................... 5.15, 5.55, 5.60 Green v The Queen [1999] NSWCCA 97 ........................................................................................................ 5.55 Griffin v Marsh (1994) 34 NSWLR 104 ......................................................................................................... 3.285 Grosse v Purvis [2003] QDC 151 .................................................................................................................. 2.240 Guardianship of Schiavo, In Re 780 So 2d 176 (Fla 2d DCA 2001) ................................................................. 9.95

H H Ltd v J (2010) 107 SASR 352 .................................................................................................................... 9.190 HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 .......................................................................................... 2.165 HM Advocate v Dingwall (1867) 5 Irvine 446 ........................................................................................ 5.05, 5.80 Haas v The Queen [1964] Tas SR 1 ............................................................................................................... 8.205 Haggie v Meredith (1993) 9 WAR 206 .......................................................................................................... 4.170 Hall v Fonceca [1983] WAR 309 ................................................................................................................... 10.55 Hall v Rossi [1830] NSWSC 16 ..................................................................................................................... 2.115 Hall (1988) 36 A Crim R 368 .......................................................................................................................... 4.95 Hamilton v Whitehead (1988) 63 ALJR 80 ...................................................................................................... 3.50 Hamilton-Byrne, Re [1995] 1 VR 129 .............................................................................................................. 2.70 Hampton v United States 425 US 484 (1976) ............................................................................................ 14.215 Handlen v The Queen; Paddison v The Queen (2011) 245 CLR 282 .................................................... 7.25, 7.115 Handmer v Taylor [1971] VR 308 ................................................................................................................. 3.290 Handyside v United Kingdom (1976) 1 EHRR 737 ...................................................................................... 11.235 Harling (1938) 26 Cr App R 127 .................................................................................................................. 11.50 Hart v The Queen (2003) 27 WAR 441 ........................................................................................................... 5.15 Haughton v Smith [1975] AC 476 .......................................................................................... 3.05, 8.205, 12.250 Hausmann v Shute [2007] ACTCA 5 ............................................................................................................. 2.170 Hawkins v The Queen (1994) 179 CLR 500 .................................................................................................. 4.150 Hawthorn (Department of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120 .................................... 3.270, 3.275 Haynes v MOT (1988) 3 CRNZ 587 ............................................................................................................. 4.100 Hayward-Jackson v Walshaw [2012] WASC 107 ............................................................................................ 10.70 Haywood v Mumford (1908) 7 CLR 133 .................................................................................................... 13.205 He Kaw Teh v The Queen (1985) 157 CLR 523 ..... 2.35, 2.175, 3.180, 3.185, 3.235, 3.245, 3.250, 3.255, 3.270, 3.285, 3.290, 3.300, 8.75, 9.115, 10.55, 11.145, 13.155, 14.135, 14.140 Health and Community Services (NT), Department of v JWB (Marion’s case) (1992) 175 CLR 218 .............. 6.180, 10.155 Heaney (1992) 61 A Crim R 241 .................................................................................................................. 7.145 Helmhout v The Queen (1980) 49 FLR 1 ......................................................................................... 4.180, 10.130 Henley 474 A 2d 1115 (1984) ...................................................................................................................... 8.200 Herbert v The Queen (1982) 62 FLR 302 ..................................................................................................... 4.180 Heron v The Queen (2003) 197 ALR 81 ......................................................................................................... 5.45 Herring v Boyle (1834) 1 Cr M & R 377 ..................................................................................................... 10.185 Hewitt (1997) 1 VR 301 ............................................................................................................................... 7.105 Heywood v Canty (unreported, 21/1/1993, VSC, Harper J, 11109 of 1991) ................................................. 3.330 Hicking v Laneyrie (1991) 21 NSWLR 730 .................................................................................................... 3.270 Hill v Baxter [1958] 1 QB 277 ........................................................................................................... 2.185, 4.140 Hill (1981) 3 A Crim R 397 ............................................................................................................................. 5.75 Hinz (1986) 24 A Crim R 185 ......................................................................................................................... 5.85 Hitchens v The Queen [1962] Tas SR 35 ......................................................................................................... 4.65 Hoch v The Queen (1988) 165 CLR 292 ........................................................................................... 2.175, 2.180 Hodges (1985) 19 A Crim R 129 .................................................................................................................... 5.95 Hogan v Sawyer; Ex parte Sawyer [1992] 1 Qd R 32; (1990) 51 A Crim R 46 ............................................... 3.240 Holland v The Queen (1993) 67 ALJR 946 .................................................................................................... 11.45 Holman v The Queen [1970] WAR 2 ................................................................................................ 4.180, 11.110 Holmes v DPP [1946] AC 588 ........................................................................................................................ 5.60 xix

Principles of Criminal Law

Hortin v Rowbottom (1993) 68 A Crim R 381 ............................................................................................ 13.180 Houghton [2006] WASCA 143; (2006) 32 WAR 260 ................................................................................... 11.195 Howell v Doyle [1952] VLR 128 ...................................................................................................................... 7.30 Hubbard v Pitt [1976] QB 142 ................................................................................................................... 13.205 Hubert (1993) 67 A Crim R 181 ................................................................................................................... 10.35 Hudson v Entsch (2005) 216 ALR 188 .......................................................................................................... 8.180 Hugget’s Case (1666) Kel 59; 84 ER 1082 ...................................................................................................... 5.30 Hughes (1989) 42 A Crim R 270 .................................................................................................................... 4.95 Hui Chi-ming v The Queen [1991] 3 WLR 495 .................................................................................. 7.130, 7.135 Hulett v Laidlaw (1996) 89 A Crim R 240 ..................................................................................................... 13.20 Hunter v Johnson (1884) 13 QBD 225 ....................................................................................................... 10.185 Hutton v The Queen [1986] Tas R 24 ............................................................................................................. 5.70 Huynh v The Queen; Duong v The Queen, Sem v The Queen (2013) 295 ALR 624 ........................... 7.110, 7.120 Hyam v DPP [1975] AC 55 ..................................................................................................... 3.180, 3.185, 10.80

I I v DPP [2001] 2 All ER 583 ........................................................................................................................ 13.215 IPH v Chief Constable of South Wales [1987] Crim LR 42 ............................................................................... 3.25 Iannella v French (1968) 119 CLR 84 ..................................................................................... 3.285, 3.315, 5.140 Ilich v The Queen (1987) 162 CLR 110 ................................................................. 12.20, 12.105, 12.180, 12.185 Innes v Weate [1984] Tas SR 14 .................................................................................................................... 13.60 Invicta Plastics Ltd v Clare [1976] Crim LR 131 .................................................................................... 3.40, 8.180 Isaac, Tajeddine & Elachi (1996) 87 A Crim R 513 .......................................................................................... 2.70

J JBH and JH (minors) v O’Connell [1981] Crim LR 632 .................................................................................... 3.25 JM (a minor) v Runeckles (1984) 79 Cr App R 255 ......................................................................................... 3.25 Jabarula v Poore (1989) 42 A Crim R 479 .............................................................................................. 5.30, 5.60 Jackson v Butterworth [1946] VLR 330 ......................................................................................................... 3.325 Jacobellis v Ohio 378 US 184 (1964) ............................................................................................. 11.230, 12.290 Jacobson v United States 503 US 540 (1992) ............................................................................................. 14.215 Jadurin v The Queen (1982) 44 ALR 424 ...................................................................................................... 2.225 Jago v District Court (NSW) (1989) 168 CLR 23 ....................................................................... 2.80, 2.125, 2.130 James v The Queen (2014) 306 ALR 1 ........................................................................................................ 10.100 Jamieson and Brugmans v The Queen (1993) 177 CLR 574 ....................................................................... 12.275 Jeb Bush v Michael Schiavo 885 So 2d 321 (Fla 2004) ................................................................................... 9.95 Jeffrey v The Queen [1982] Tas R 199 .................................................................................................... 4.45, 4.65 Jeffs v Graham (1987) 8 NSWLR 292 ...................................................................................... 4.95, 4.100, 13.155 Jervis (1991) 56 A Crim R 374 ...................................................................................................................... 10.80 Jiminez v The Queen (1992) 173 CLR 572 .................................................................... 3.360, 3.370, 4.95, 9.185 John Henshall (Quarries) Ltd v Harvey [1965] 2 QB 233 ................................................................................. 3.40 Johns v The Queen (1980) 143 CLR 108 ................................................................................ 7.120, 7.130, 7.135 Johnson v The Queen (1976) 136 CLR 619 ........................................................................................... 5.10, 5.60 Johnson v Western Australia [2009] WASCA 71 ............................................................................................. 6.170 Johnson v Youden [1950] 1 KB 544 ................................................................................................................ 7.70 Johnson (1805) 29 St Tr 81 .......................................................................................................................... 7.105 Jolly v The Queen [2009] NSWDC 212 ....................................................................................................... 13.185 Jones (1986) 22 Cr App R 42 ................................................................................................... 4.200, 5.90, 5.105 Jones (1990) 91 Cr App R 351 .............................................................................................................. 8.40, 8.50 Jones and Mirrless (1977) 65 Cr App R 250 .................................................................................................... 7.45 Jordan v Burgoyne [1963] 2 WLR 1045 ........................................................................................................ 13.75

K K v Minister for Youth and Community Services [1982] 1 NSWLR 311 ............................................... 6.150, 9.225 K v T [1983] 1 Qd R 396 .............................................................................................................................. 9.225 Kable v DPP (NSW) (1996) 189 CLR 51 .............................................................. 1.85, 2.25, 4.80, 14.240, 15.275 Kamara v DPP [1974] AC 104 .............................................................................................. 8.130, 8.150, 13.200 Kaminski v The Queen [1975] WAR 143 ....................................................................................................... 4.180 Kaporonovski v The Queen (1973) 133 CLR 209 ........................................................................................ 10.130 Karakatsanis v Racing Victoria Ltd [2013] VSC 434 ................................................................................ 8.35, 8.45 Kay v Butterworth (1945) 61 TLR 452 .......................................................................................................... 3.105 xx

Table of Cases

Kay (1857) Dears & B 231 ........................................................................................................................... 7.105 Kearon v Grant [1991] 1 VR 321 ....................................................................................................... 3.260, 3.270 Keft v Fraser (unreported, 21/4/1986, WASC, 6251) .................................................................................. 13.180 Kehoe v Dacol Motors Pty Ltd; Ex parte Dacol Motors Pty Ltd [1972] Qd R 59 ............................................... 3.50 Kenlin v Gardiner [1967] 2 QB 510 .............................................................................................................. 10.70 Kennison v Daire (1985) 38 SASR 404 .......................................................................................................... 12.20 Kennison v Daire (1986) 160 CLR 129 ....................................................................................................... 12.105 Khammash v Rowbottom (1989) 51 SASR 172 ................................................................................. 3.285, 3.315 King v The Queen (1986) 161 CLR 423 ........................................................................................................ 7.110 King v The Queen (2012) 245 CLR 588 .................................................................... 9.160, 9.175, 9.185, 10.100 Kingdon v Western Australia [2012] WASCA 74 .......................................................................................... 12.135 Kingswell v The Queen (1985) 159 CLR 264 .................................................................................................. 2.90 Klass v Federal Republic of Germany (1978) 2 EHRR 214 .............................................................................. 2.245 Knight v The Queen (1992) 175 CLR 495 ...................................................................................................... 8.75 Knight (1988) 35 A Crim R 314 ................................................................................... 10.20, 10.25, 10.30, 10.40 Knuller (Publishing and Printing Promotions) Ltd v DPP [1973] AC 435 ............................................ 8.130, 8.135 Kowbel v The Queen [1954] 4 DLR 337 ....................................................................................................... 8.110 Kristos (1989) 39 A Crim R 86 ...................................................................................................................... 8.205 Kroon v The Queen (1990) 55 SASR 476 ....................................................................................................... 4.95 Kruslin v France (1990) 12 EHRR 547 ........................................................................................................... 2.245 Kural v The Queen (1987) 162 CLR 502 .......................................................................................... 3.200, 14.140 Kuru v State of New South Wales (2008) 236 CLR 1 .......................................................................... 13.15, 13.35 Kwaku Mensah v The Queen [1946] AC 83 .................................................................................................. 9.140 Kwok Ming v The Queen (No 1) [1963] HKLR 349 ....................................................................................... 3.190

L La Fontaine v The Queen (1976) 136 CLR 62 .................. 2.175, 2.180, 3.180, 3.205, 3.215, 4.180, 9.115, 10.55 Lam (2005) 159 A Crim R 467 ....................................................................................................................... 7.35 Lam (2008) 185 A Crim R 453 ....................................................................................................................... 7.45 Lamb v Toledo-Berkel Pty Ltd [1969] VR 343 .................................................................................................. 3.50 Lamperd, Re (1983) 63 FLR 470 ................................................................................................................... 9.175 Lanciana (1996) 84 A Crim R 268 ............................................................................................. 6.85, 6.115, 6.135 Lang (1975) 62 Cr App R 50 ........................................................................................................................ 11.50 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 ............................................................. 13.160 Larner v Dorrington (1993) MVR 75 ................................................................................................. 6.165, 6.175 Laskey, Jaggard and Brown v United Kingdom (1997) 24 EHRR 39 ....................................... 10.165, 11.15, 11.30 Lavin v Albert [1982] AC 546 ......................................................................................................................... 6.20 Lawless v The Queen (1979) 142 CLR 659 ................................................................................................... 2.115 Lawrence v Metropolitan Police Commissioner [1972] AC 626 ................................................................... 12.100 Leaman v The Queen [1986] Tas R 223 ........................................................................................................ 7.175 Lean and Aland (1993) 66 A Crim R 296 ........................................................................................................ 6.55 Lee v New South Wales Crime Commission (2013) 251 CLR 196 ............................................................... 14.125 Lee v The Queen (1917) 13 Cr App R 39 ............................................................................................. 3.85, 9.165 Lee (1994) 76 A Crim R 271 ......................................................................................................................... 8.105 Lee Chun-Chuen v The Queen [1963] AC 220 ...................................................................................... 5.10, 5.70 Lees v Visser (2000) 9 Tas R 103 ................................................................................................................... 10.40 Lenard v The Queen (1992) 57 SASR 164 .................................................................................................... 3.330 Leonard v Morris (1975) 10 SASR 528 .............................................................................................. 3.180, 10.55 Lergesner v Carroll (1990) 49 A Crim R 51 .................................................................................... 10.140, 10.160 Lewis v Crafter [1942] SASR 30 ...................................................................................................................... 3.40 Liangsiriprasert v Government of the USA [1991] 1 AC 225 ........................................................................... 2.70 Libman v The Queen (1985) 21 CCC (3d) 206; [1985] 2 SCR 178 ................................................................. 2.70 Likiardopoulos v The Queen (2010) 30 VR 654 .............................................................................................. 7.25 Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37 ........................................... 7.10, 7.120, 7.155 Lim Chin Aik v The Queen [1963] AC 160 ................................................................. 3.250, 3.270, 3.335, 14.140 Limbo v Little (1989) 45 A Crim R 61 ........................................................................................................... 6.170 Linder v US 268 US 5 (1925) ....................................................................................................................... 14.80 Lindley v Rutter (1980) 72 Cr App R 1 .......................................................................................................... 10.70 Lindsay v The Queen (2015) 255 CLR 272 ................................................................................... 5.10, 5.40, 5.55 Linehan v Australian Public Service Association (1983) 67 FLR 412 ................................................................. 3.50 Lipohar v The Queen (1999) 200 CLR 485 ................................................................................. 2.60, 2.70, 15.35 Llandilo Staircases Pty Ltd v WorkCover Authority of New South Wales (Inspector Parsons) [2001] NSWIRComm 64 .................................................................................................................................... 3.270 Lodhi v The Queen (2006) 199 FLR 303 ......................................................................................................... 8.30 Logdon v DPP [1976] Crim LR 121 ........................................................................................ 10.35, 10.40, 10.55 xxi

Principles of Criminal Law

Longman v R (1989) 168 CLR 79 ............................................................................................................... 11.180 Lotus Case (1927) PCIJ Series A No 10 ........................................................................................................... 2.70 Low v The Queen (1978) 23 ALR 616 ......................................................................................................... 12.285 Lowdens v Keaveny [1903] 2 IR 82 ............................................................................................................ 13.200 Luong v DPP (Cth) [2013] VSCA 296 ........................................................................................................... 6.175

M M’Naghten’s case (1843) 10 Cl and Fin 200 ......................................................................................... 4.15, 4.20 Mabo v Queensland (No 2) (1992) 175 CLR 1 ......................................................................... 2.50, 2.145, 2.210 MacLeod v Attorney-General (NSW) [1891] AC 455 ....................................................................................... 2.45 MacPherson v Beath (1975) 12 SASR 174 .................................................................................................... 10.35 MacPherson v Brown (1975) 12 SASR 184 ...................................................................................... 10.55, 10.185 Macklin and Murphy’s Case (1838) 2 Lew CC 225 ......................................................................................... 7.80 Macleod v The Queen (2003) 214 CLR 230 ......................................................................... 12.35, 12.65, 12.100 Macpherson v Beath (1975) 12 SASR 174 ...................................................................................................... 7.65 Mahadeo v The King [1936] 2 All ER 813 ..................................................................................................... 7.155 Maher v Musson (1934) 52 CLR 100 ............................................................................................................ 3.280 Malette v Shulman (1990) 67 DLR (4th) 321 ...................................................................................... 6.180, 9.45 Malone v Berezowski (1993) 161 LSJS 227 ................................................................................................... 15.60 Mamote-Kulang of Tamagot v The Queen (1964) 111 CLR 62 ............................................... 3.225, 9.175, 10.35 Mancini v DPP [1942] AC 1 .......................................................................................................................... 2.175 Mankotia (2001) 120 A Crim R 492 ................................................................................................................ 5.45 Manley (1844) 1 Cox 104 ............................................................................................................................ 7.105 Mansell v Griffin [1908] 1 KB 160 .............................................................................................................. 10.135 Manton (2002) 132 A Crim R 249 ................................................................................................................ 10.70 Maroney v The Queen (2003) 216 CLR 31 ................................................................................................. 14.155 Martin v The Queen [1963] Tas SR 103 ........................................................................................................ 3.240 Martin (1983) 9 A Crim R 376 ...................................................................................................................... 4.170 Martin (1984) 16 A Crim R 87 ............................................................................................................. 4.95, 4.180 Martin (1989) 88 Cr App R 343 ................................................................................................................... 6.165 Martin (1995) 85 A Crim R 587 ........................................................................................................... 3.190, 9.30 Martin (No 2) (1996) 86 A Crim R 133 ................................................................................................ 3.190, 9.30 Marwey v The Queen (1977) 138 CLR 630 .................................................................................................. 2.175 Masciantonio v The Queen (1995) 183 CLR 58 .......................................................... 5.10, 5.45, 5.50, 5.60, 5.65 Masnec v The Queen [1962] Tas SR 354 ........................................................................................................ 6.55 Masterson and Cooper v Holden [1986] Crim LR 688 ................................................................................ 11.220 Matheson (1958) 42 Cr App R 145 .............................................................................................................. 5.165 Mathews v Fountain [1982] VR 1045 ......................................................................................................... 12.280 Mattingley v Tuckwood (1988) 88 ACTR 1 ................................................................................................. 12.275 Matusevich v The Queen (1977) 137 CLR 633 ....................................................................... 7.105, 7.110, 7.130 Mawji v The Queen [1957] AC 126 .............................................................................................................. 8.110 May v O’Sullivan (1955) 92 CLR 654 ........................................................................................................... 2.175 Mayer v Marchant (1973) 5 SASR 567 ......................................................................................................... 3.280 Mazeau (1840) 9 C & P 676 ........................................................................................................................ 7.105 McArdle v Wallace [1964] Crim LR 467 ........................................................................................................ 10.70 McAuliffe v The Queen (1995) 183 CLR 108 .......................................................................... 7.120, 7.130, 7.135 McAvaney v Quigley (1992) 58 A Crim R 457 ............................................................................................ 10.160 McAvoy v Gray [1946] ALR 459 .................................................................................................................... 9.220 McBride v Turnock [1964] Crim LR 456 ....................................................................................................... 10.70 McCabe v British American Tobacco Services Ltd [2002] VSC 73 .................................................................... 3.60 McCarthy and Ryan (1993) 71 A Crim R 395 .................................................................................................. 7.75 McConnell (1993) 69 A Crim R 39 ............................................................................................................... 3.200 McCullough v The Queen [1982] Tas R 43; (1982) 6 A Crim R 274 .......................................... 4.180, 4.210, 6.55 McDermott v Director of Mental Health; Ex parte Attorney-General (Qld) (2007) 175 A Crim R 461 ............. 5.85, 5.115 McGarry v The Queen (2001) 207 CLR 121 ................................................................................................... 4.80 McGhee v The Queen (1995) 183 CLR 82 ............................................................................. 8.75, 8.205, 10.130 McHenry v Stewart (unreported, 14/12/1976, WACA) ................................................................................. 6.165 McInnis v The Queen (1979) 143 CLR 575 .................................................................................................. 2.155 McKenzie v GJ Coles and Co Ltd [1986] WAR 224 .......................................................................................... 3.50 McKinney v The Queen (1990) 171 CLR 468 ................................................................................................. 2.80 McLean (1981) 5 A Crim R 36 ........................................................................................................................ 7.65 McLeod v United Kingdom (1999) 27 EHRR 493 ......................................................................................... 13.35 McLiney v Minster [1911] VLR 347 .................................................................................................... 6.35, 10.120 McMaster v The Queen (1994) 4 NTLR 92 ................................................................................................... 3.240 xxii

Table of Cases

McPherson v Cairn [1977] WAR 28 .............................................................................................................. 3.235 Medical Board of Australia v Patel [2015] QCAT 133 .................................................................................... 9.180 Mee v Cruickshank (1902) 20 Cox CC 210 ................................................................................................ 10.185 Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 ..................................................................... 10.185 Meissner v The Queen (1995) 184 CLR 132 ................................................................................................. 8.155 Melbourne Corporation v Barry (1922) 31 CLR 174 ................................................................................... 13.145 Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 ............................... 3.50 Meyrick and Ribuffi (1929) 21 Cr App R 94 .................................................................................................. 8.105 Michael v State of Western Australia (2008) 183 A Crim R 348; [2008] WASCA 66 ......................... 11.110, 11.115 Michael (1840) 9 C & P 356 ........................................................................................................................ 7.105 Middap (1992) 63 A Crim R 434 .................................................................................................................. 7.175 Milicevic v Campbell (1975) 132 CLR 307 ................................................................................................... 14.95 Miller v Miller (2011) 242 CLR 446 ................................................................................................................ 7.90 Miller v The Queen (1980) 32 ALR 321 ........................................................................................................ 7.145 Miller v The Queen; Smith v The Queen; Presley v DPP (SA) (2016) 334 ALR 1; [2016] HCA 30 .......... 7.05, 7.120, 7.135 Milloy v The Queen [1993] 1 Qd R 298 ......................................................................................................... 4.95 Mills (1963) 47 Cr App R 49 .......................................................................................................................... 8.95 Mills (1985) 17 A Crim R 411 ......................................................................................................................... 7.65 Ministry of Transport v Crawford [1988] 1 NZLR 762 ................................................................................... 4.195 Minogue v Briggs (1987) 79 ALR 525 .......................................................................................................... 3.275 Moffa v The Queen (1977) 138 CLR 601 ...................................... 2.175, 5.10, 5.20, 5.25, 5.35, 5.40, 5.65, 5.70 Mogul Steamship Company v McGregor, Gow and Co [1892] AC 25 ............................................................ 8.90 Mohan v The Queen [1967] 2 AC 187 ......................................................................................................... 7.120 Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 ................................................. 2.150, 2.170, 14.95 Moore v Hussey (1609) Hob 93; 80 ER 243 ................................................................................................. 6.140 More v The Queen [1963] 3 CCC 289 ......................................................................................................... 4.150 Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163 .................................................................................. 3.45 Moriarty v Brooks (1834) 6 C & P 684 ......................................................................................................... 10.80 Morris v Tolman [1923] 1 KB 166 ..................................................................................................... 7.100, 7.110 Moss v McLachlan [1984] IRLR 76 ................................................................................................................ 13.70 Mouse (1608) 77 ER 1341 ........................................................................................................................... 6.140 Mousell Bros Ltd v London and Northwestern Railway Co [1917] 2 KB 836 ................................................... 3.45 Mraz v The Queen (1955) 93 CLR 493 ......................................................................................................... 9.130 Mulcahy v The Queen (1868) LR 3 HL 306 .......................................................................................... 8.85, 8.130 Munda v Western Australia (2013) 249 CLR 600 .......................................................................................... 2.225 Mungatopi v The Queen (1992) 2 NTLR 1 ..................................................................................................... 5.60 Munjunen (1993) 67 A Crim R 350 ............................................................................................................ 12.105 Murray v McMurchy [1949] 2 DLR 442 ........................................................................................... 6.180, 10.155 Murray v The Queen [1962] Tas SR 170 ............................................................. 7.30, 7.110, 7.120, 7.135, 9.140 Murray v The Queen (2002) 211 CLR 193 ..................................................................................................... 2.25 Mutemeri v Cheeseman (1998) 100 A Crim R 397; [1998] 4 VR 484 ................................................. 1.40, 10.180 Mutton (1793) 1 Esp 62 .............................................................................................................................. 7.105

N N, Ex parte [1959] Crim LR 523 ..................................................................................................................... 3.25 NOM v Director of Public Prosecutions (2012) 38 VR 618 .......................................................................... 10.180 NSW Crime Commission v Younan (1993) 31 NSWLR 44 ........................................................................... 14.200 Nagy v Weston [1965] 1 All ER 78 .............................................................................................................. 13.205 National Coal Board v Gamble [1959] 1 QB 11 ............................................................................ 3.40, 7.30, 7.65 Nationwide News Pty Ltd v Bitter (1985) 38 SASR 390 ................................................................................ 3.270 Neal v The Queen (1982) 149 CLR 305 .......................................................................................... 2.220, 13.195 Neal v The Queen (2011) 32 VR 454 .................................................................................. 10.90, 10.145, 10.165 New South Wales Sugar Milling Co-op Ltd v Environmental Protection Agency (1992) 59 A Crim R 6 .......... 3.225 Ng v The Queen [2011] NSWCCA 227 .......................................................................................................... 7.95 Ngawaka v The Queen [2004] NZCA 249 ...................................................................................................... 7.90 Nguyen v The Queen [2005] WASCA 22 ........................................................................................... 6.165, 6.170 Nguyen v The Queen (2008) 181 A Crim R 72 .................................................................................... 6.80, 6.100 Nguyen v The Queen [2013] VSCA 65 ........................................................................................................... 8.75 Nicholas v The Queen (1998) 193 CLR 173 .................................................................................. 14.125, 14.220 Nicholson (1994) 76 A Crim R 187 ................................................................................................................ 8.45 Nicklinson and Lamb v United Kingdom (Apps 2478/15 and 1787/15) ......................................................... 9.60 Nilsson v McDonald [2009] TASSC 66 .......................................................................................................... 13.60 Nirta v The Queen (1983) 10 A Crim R 370; (1983) 51 ALR 53 ................................................... 7.65, 8.10, 8.130 Noordhof v Bartlett (1986) 31 A Crim R 417 ................................................................................................ 10.70 xxiii

Principles of Criminal Law

North Broken Hill; Ex parte Commissioner of Police (Tas) (1992) 61 A Crim R 390 ....................................... 13.50 Northridge v Central Sydney Area Health Service (2000) 50 NSWLR 549 .............................................. 9.35, 9.90 Nosworthy v The Queen (1983) 8 A Crim R 270 .......................................................................................... 4.215 Nudd v The Queen (2006) 80 ALJR 614 ......................................................................................................... 2.80 Nugget (1666) 18 Car 2 ................................................................................................................................ 5.10 Nulyarimma v Thompson (1999) 165 ALR 621 .......................................................................................... 15.105 Nydam v The Queen [1977] VR 430 .................. 3.205, 3.225, 4.180, 4.195, 9.160, 9.165, 9.170, 9.175, 10.100

O O’Brien (1974) 59 Cr App R 222 ......................................................................................................... 8.95, 8.120 O’Connell v The Queen (1844) 8 ER 1061 ................................................................................................. 15.225 O’Connor v Killian (1984) 38 SASR 327 ......................................................................................................... 8.45 O’Leary v Daire (1984) 13 A Crim R 404 ........................................................................................... 4.155, 4.185 O’Meara v The Queen [2009] NSWCCA 90 .................................................................................................... 8.75 O’Neill v Ministry of Transport [1985] 2 NZLR 513 ...................................................................................... 4.195 O’Neill v The Queen [1976] Tas SR 66 ........................................................................................................... 4.65 O’Sullivan v Thurmer [1955] SASR 76 .......................................................................................................... 7.110 O’Sullivan v Truth and Sportsman Ltd (1957) 96 CLR 220 ............................................................................. 7.30 Oatridge (1992) 94 Cr App R 367 .................................................................................................................. 6.50 Oliphant (1905) 2 KB 73 .............................................................................................................................. 7.105 Ong Chin Keat Jeffrey v Public Prosecutor [2004] 4 SLR 483 ...................................................................... 14.230 Osland v The Queen (1998) 197 CLR 316 ...................................... 7.10, 7.15, 7.100, 7.105, 7.110, 7.115, 7.120 Ostrowski v Palmer (2004) 206 ALR 422 ...................................................................................................... 3.350 Owens (1987) 30 A Crim R 59 ..................................................................................................................... 4.155 Oxford v Moss (1978) 68 Cr App R 183 ........................................................................................ 12.145, 15.250

P PGA v The Queen (2012) 245 CLR 355 ............................................................................................. 8.135, 11.65 Pagawa v Mathew [1986] PNGLR 154 ......................................................................................................... 6.165 Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331 ...................................................................................... 10.160 Palmer (1804) 2 Leach 978 .......................................................................................................................... 7.105 Palmer v Ostrowski (2002) 128 A Crim R 56 ................................................................................................. 3.350 Palmer v The Queen [1971] AC 814 ............................................................................................. 6.10, 6.50, 6.55 Palmer v The Queen [1985] Tas R 138 .............................................................................................. 4.170, 4.180 Panos v Hayes (1987) 44 SASR 148 .............................................................................................................. 13.60 Papadimitropoulos v The Queen (1957) 98 CLR 249 .......................................................... 11.40, 11.115, 11.120 Pappajohn v The Queen (1980) 52 CCC (2d) 481 ..................................................................................... 11.150 Parker v Alder [1899] 1 QB 20 ...................................................................................................................... 3.255 Parker v The Queen (1963) 111 CLR 610 ....................................................................................................... 5.40 Parker v The Queen (1964) 111 CLR 665 ..................................................................................... 5.15, 5.35, 5.70 Parker: Re Brotherson, Ex parte (1957) 57 SR (NSW) 326 ............................................................................... 7.50 Parsons v The Queen (1999) 195 CLR 619 .................................................................................... 12.120, 12.135 Patel v The Queen (2012) 247 CLR 531 ................................................................................. 9.160, 9.175, 9.180 Paterson [1976] NZLR 394 ........................................................................................................................... 7.105 Paton v British Pregnancy Advisory Service Trustees [1979] QB 276 ............................................................... 9.30 Patterson (1982) 6 A Crim R 331 .................................................................................................................... 6.50 Pearce v Florenca (1976) 135 CLR 507 ........................................................................................................... 2.45 Pearson’s Case (1835) 2 Lew CC 144 ........................................................................................................... 4.195 Pedro v Diss [1981] 2 All ER 59 .................................................................................................................... 10.70 Peisley (1990) 54 A Crim R 42 ........................................................................................................................ 5.40 Pemble v The Queen (1971) 124 CLR 107 ............... 3.175, 3.205, 4.180, 5.70, 6.80, 9.120, 9.140, 9.150, 10.35 People v Hearn Mich App 300 NW 2d 396 (1981) ....................................................................................... 11.55 People v Lewis 124 Cal 551 (1899) .............................................................................................................. 3.155 People, The v MacEoin (1978) 112 ILTR 43 .................................................................................................... 5.65 Pepler (1984) 13 A Crim R 476 ...................................................................................................................... 5.70 Pereira v DPP (1988) 82 ALR 217 ................................................................................................................. 3.200 Perez-Vargas (1986) 8 NSWLR 559 ............................................................................................................. 11.195 Perka v The Queen (1985) 14 CCC (3d) 385 .......................................................................... 6.140, 6.150, 6.190 Peterkin v The Queen (1982) 6 A Crim R 351 ............................................................................................... 4.180 Peters v The Queen (1998) 192 CLR 493 .............................................. 3.175, 3.200, 8.140, 8.160, 12.50, 12.65 Phillips v The Queen [1969] 2 AC 130 ............................................................................................................ 5.40 Phillips (1987) 86 Cr App R 18 ..................................................................................................................... 8.110 Piddington v Bates [1961] 1 WLR 162 .......................................................................................................... 13.70 xxiv

Table of Cases

Pinkstone v The Queen (2004) 219 CLR 444 ................................................................................... 7.105, 14.155 Pitman (1826) 2 C & P 423 ......................................................................................................................... 7.105 Planned Parenthood v Casey 505 US 833 (1992) ......................................................................................... 9.215 Plomp v The Queen (1963) 110 CLR 234 ..................................................................................................... 9.110 Podirsky v R (1990) 3 WAR 128 .................................................................................................................. 11.195 Police v Atherton [2010] SASC 87 .............................................................................................................. 13.155 Police v Bannin [1991] 2 NZLR 237 .................................................................................................... 4.95, 4.180 Police v Pfeifer (1997) 68 SASR 285 ........................................................................................................... 13.155 Police v Saysouthinh (unreported, 10/5/2005, NSW Local Court, Liverpool, Brydon LCM, M619/02, BBH-F2/H1) .......................................................................................................................................... 13.100 Police, Commissioner of v Allen (1984) 14 A Crim R 244 ................................................................. 13.75, 13.210 Police, Commissioner of v Wilson [1984] AC 242 ......................................................................................... 10.50 Police (Tas), Commissioner of; Ex parte North Broken Hill Ltd (1992) 61 A Crim R 390 ........ 13.70, 13.85, 13.125 Police of the Metropolis, Commissioner of v Caldwell [1982] AC 341 ................................................ 3.220, 9.120 Pollard v DPP (Cth) (1992) 28 NSWLR 659 ............................................................................ 3.275, 3.285, 3.315 Polyukhovich v Commonwealth (1991) 172 CLR 501 ................................................. 15.15, 15.30, 15.35, 15.60 Pong Su, Re (2005) 159 A Crim R 300 ........................................................................................................... 7.65 Postermobile v Brent LBC (unreported, 8/12/1997, Schiemann LJ, English Divisional Court) ........................ 3.350 Poulterers’ Case (1611) 77 ER 813 ................................................................................................................. 8.85 Power v Huffa (1976) 14 SASR 337 .............................................................................................................. 3.285 Pradeep Kumar Verma v State of Bihar & Anor (2007) AIR SC 3059 ............................................................ 11.125 Pregelj v Manison (1987) 31 A Crim R 383 ........................................................................................ 3.235, 3.240 Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241 .............. 3.35, 3.45, 3.50, 10.15 Pretty v United Kingdom (2002) 35 EHRR 1 ................................................................................................... 9.60 Prosecutor v Anto Furundzija (Trial Judgement) IT-95-17/1-T, ICTY, Case No ICTY-95-14/1, 10 December 1998 ........................................................................................................................ 15.70, 15.100 Prosecutor v Clément Kayishema and Obed Ruzindana (Trial Judgement) ICTR-95-1-T, ICTR, 21 May 1999 ...................................................................................................................................................... 15.90 Prosecutor v Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Trial Judgment) IT-96-23-T & IT-96-23/1-T, ICTY, 22 February 2001 ................................................................................................... 15.100 Prosecutor v Jean-Paul Akayesu (Trial Judgement) ICTR-96-4-T, ICTR, 2 September 1998 ................ 15.90, 15.100 Prosecutor v Stanilav Galic (Trial Judgement and Opinion) IT-98-29-T, ICTY, 5 December 2003 ................. 15.165 Proudman v Dayman (1941) 67 CLR 536 .............................................. 3.270, 3.275, 3.280, 3.290, 3.295, 3.300 Pyneboard v TPC (1983) 45 ALR 609 ........................................................................................................... 2.155

Q Quartermaine v Western Australia (2008) 180 A Crim R 501 ........................................................................... 6.85 Queen, The v GJ [2005] NTCCA 20 .............................................................................................................. 2.220 Queen, The v Gardner [2012] QSC 73 ......................................................................................................... 6.160 Queen, The v Getachew [2012] HCA 10 .................................................................................................... 11.155 Queen, The v Ramalingam [2011] ACTSC 86 ............................................................................................... 10.50 Queen, The v Tamawiwy (No 2) [2015] ACTSC 302 ................................................................................... 11.125 Queensland v Alyssa Nolan (an infant) [2001] QSC 174 ............................................................................... 6.155 Question of Law Reserved (No 1 of 2008) (2008) 102 SASR 398 .................................................................. 8.130 Question of Law Reserved on Acquittal Pursuant to Section 351(1A), Criminal Law Consolidation Act (No 1 of 1993) (1993) 59 SASR 214 ....................................................................................................... 11.25

R R v A (1944) 83 CCC 94 .............................................................................................................................. 9.220 R v A [2001] 93 All ER 1 ............................................................................................................................... 2.135 R v A (No 2) [2002] 1 AC 45 ....................................................................................................................... 11.180 R v AC Hatrick Chemicals Pty Ltd (unreported, VSC, 29 November 1995) ...................................................... 3.50 R v Abbey (1982) 68 CCC (2d) 394 ............................................................................................................... 4.55 R v Abebe [2000] 1 VR 429 ............................................................................................................................ 5.55 R v Abusafiah (1991) 24 NSWLR 531 ......................................................... 6.80, 6.85, 6.100, 6.110, 6.115, 6.135 R v Adomako [1995] 1 AC 171 .......................................................................................................... 3.225, 9.170 R v Aitken [1992] 1 WLR 1006 ................................................................................................................... 10.160 R v Ali [2001] QCA 331 ................................................................................................................................ 9.255 R v Ali [2015] EWCA Crim 1279 ................................................................................................................... 11.85 R v Allan [1965] 1 QB 130 .............................................................................................................................. 7.45 R v Allard (1990) 57 CCC (3d) 397 .............................................................................................................. 4.150 R v Allen [1985] 1 AC 1029 ........................................................................................................................ 12.195 R v Alley; Ex parte Mundell (1886) 12 VLR 13 ............................................................................................... 8.110 xxv

Principles of Criminal Law

R v Alwis [2012] QCA 308 ............................................................................................................................ 12.65 R v Anderson [1965] NZLR 29 ........................................................................................................................ 5.70 R v Anderson [1986] AC 27; [1985] 2 All ER 961 .................................................................. 8.125, 8.150, 14.210 R v Anderson, Neville, Dennis and Oz Publications Ink Ltd (1972) 1 QB 304 .............................................. 11.230 R v Anderson and Morris [1966] 2 QB 110 ........................................................................................ 7.120, 7.125 R v Andrew [1973] 1 QB 442 ....................................................................................................................... 8.145 R v Ansari (2007) 70 NSWLR 89 ................................................................................................................. 14.180 R v Arden [1975] VR 449 ................................................................................................................................ 5.35 R v Arnol [1980] Tas R 222 ........................................................................................................................... 4.180 R v Ashwell (1885) 16 QBD 190 ................................................................................................................. 12.180 R v Aspinall (1876) 2 QBD 48 ....................................................................................................................... 8.100 R v Aubrey (2012) 82 NSWLR 748 ............................................................................................................. 10.175 R v Austin [1981] 1 All ER 374 ...................................................................................................................... 7.110 R v Ayoub [1984] 2 NSWLR 511 .......................................................................................................... 4.70, 5.120 R v B (unreported, 19/7/1995, VSC) .......................................................................................................... 10.180 R v B; R v A [1979] 3 All ER 460 ...................................................................................................................... 3.25 R v BBF [2007] QCA 262 ................................................................................................................................ 8.60 R v Baba [1977] 2 NSWLR 502 .......................................................................................................... 8.130, 8.145 R v Bacash [1981] VR 923 ............................................................................................................................ 10.55 R v Bailey (1800) 168 ER 651 ....................................................................................................................... 3.335 R v Bailey [1983] 1 WLR 760 .......................................................................................................................... 4.95 R v Bainbridge [1960] 1 QB 129 ....................................................................................................... 7.75, 15.190 R v Ball (1991) 56 SASR 126 ........................................................................................................................ 4.180 R v Ballard [1829] NSWSC 26 ........................................................................................................................ 2.50 R v Baltzer (1974) 27 CCC (2d) 118 ............................................................................................................. 4.150 R v Barbouttis (1995) 37 NSWLR 256 ........................................................................................................... 8.215 R v Barbouttis, Dale and Single (unreported, 2/10/1996, HCA, Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ, S51/1996) ..................................................................................................................... 8.215 R v Barker [1924] NZLR 865 .................................................................................................................. 8.35, 8.45 R v Barker (unreported, 2012) .................................................................................................................... 11.125 R v Barker (2014) 287 FLR 249 .......................................................................................... 4.60, 4.65, 4.90, 4.180 R v Barlow (1962) 79 WN (NSW) 756 ............................................................................................... 7.160, 7.175 R v Barlow (1997) 188 CLR 1 .............................................................................................................. 2.25, 7.140 R v Barnier (1980) 51 CCC (2d) 193 .............................................................................................................. 4.55 R v Barton (1931) 25 QJPR 81 ...................................................................................................................... 9.220 R v Baruday [1984] VR 685 ........................................................................................................................ 12.100 R v Battle (1993) 8 WAR 449 ........................................................................................................................ 4.170 R v Bayliss (1986) 9 QL 8 ............................................................................................................................. 9.225 R v Beattie (1981) 26 SASR 481 ................................................................................................................. 11.200 R v Beck [1985] 1 All ER 571 .......................................................................................................................... 7.25 R v Beck [1990] 1 Qd R 30 ................................................................................................................ 7.120, 7.135 R v Beckett (1836) 1 Mood & R 526 ............................................................................................................ 10.80 R v Beecham (1851) 5 Cox CC 181 ........................................................................................................... 12.205 R v Belfon [1976] 3 All ER 46 ........................................................................................................................ 10.65 R v Bell [1972] Tas SR 127 .............................................................................................................................. 8.75 R v Benli [1998] 2 VR 149 .......................................................................................................................... 12.285 R v Bennett [2014] NSWDC 61 .................................................................................................................... 11.75 R v Bernhard [1938] 2 KB 264 ........................................................................................................... 3.330, 12.35 R v Bernhard (1978) 40 CCC (2d) 353 ......................................................................................................... 3.330 R v Berriman (1854) 6 Cox CC 388 .............................................................................................................. 9.255 R v Bickley (1909) 2 Cr App R 53 ................................................................................................................. 9.220 R v Biess [1967] Qd R 470 ............................................................................................................................ 5.115 R v Bingapore (1975) 11 SASR 469 .............................................................................................................. 3.150 R v Bingley (1821) Russ & Ry 446 .................................................................................................................. 7.80 R v Birt (1831) 5 C & P 154 ....................................................................................................................... 13.200 R v Bland [1988] Crim LR 41 .......................................................................................................................... 7.45 R v Blaue [1975] 1 WLR 1411 ............................................................................................................ 3.150, 10.35 R v Blevins (1988) 48 SASR 65 ..................................................................................................................... 10.80 R v Bonnor [1957] VR 227 ............................................................................................................................. 4.70 R v Bonollo [1981] VR 633 ................................................................................................................ 12.50, 12.65 R v Boshears , The Times, 18 February 1961 ................................................................................................... 4.95 R v Boston (1923) 33 CLR 386 ..................................................................................................................... 8.130 R v Boughey (1986) 161 CLR 10 ................................................................................................................ 10.115 R v Bourne [1939] 1 KB 687 ......................................................................................................................... 6.150 R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147 ...... 15.40 R v Boyea [1992] 156 JPR 505 ...................................................................................................................... 11.20 R v Bozikis [1981] VR 587 ............................................................................................................................ 10.65 xxvi

Table of Cases

R v Brain (1834) 6 C & P 349 ......................................................................................................................... 9.30 R v Brennan and Leach (unreported, Dist Ct, Qld, Criminal Jurisdiction, Indictment 74 of 2010, DIS – 00000610/10) ........................................................................................................................................ 9.230 R v Brow [1981] VR 783 .................................................................................................................... 12.50, 12.65 R v Brown (1841) Car & M 314 ................................................................................................................... 13.70 R v Brown (1870) 11 Cox CC 517 ................................................................................................................ 9.255 R v Brown [1968] SASR 467 .................................................................................................................. 6.70, 6.80 R v Brown [1975] 10 SASR 139 .................................................................................................................. 11.145 R v Brown (1986) 43 SASR 33 ................................................................................ 6.80, 6.85, 6.90, 6.100, 6.110 R v Brown (1987) 78 ALR 368 ................................................................................................ 3.210, 4.180, 9.120 R v Brown [1990] VR 820 ............................................................................................................................. 8.120 R v Brown [1992] 2 WLR 441 ..................................................................................................................... 10.165 R v Brown [1993] 2 WLR 556 ............................................. 10.140, 10.160, 10.165, 11.10, 11.15, 11.20, 11.210 R v Brown [1994] 1 AC 212 .......................................................................................................................... 11.15 R v Browning (1976) 34 CCC (2d) 200 ........................................................................................................ 4.150 R v Bruer (2012) 114 SASR 365 .................................................................................................................... 10.25 R v Bull (1974) 131 CLR 203 ......................................................................................................... 14.110, 14.135 R v Burgess [1991] 2 QB 92 ........................................................................................................................... 4.95 R v Burgess (2005) 152 A Crim R 100 ............................................................................................................. 6.45 R v Burke [1986] Crim LR 331 ...................................................................................................................... 6.105 R v Burr [1969] NZLR 736 ................................................................................................................... 4.95, 4.100 R v Bush [1970] 3 NSWR 500 ....................................................................................................................... 9.150 R v Butcher [1986] VR 43 ............................................................................................................................. 9.130 R v Butler [1992] 1 SCR 452 ....................................................................................................................... 11.240 R v Butterfield (1843) 1 Cox CC 39 .............................................................................................................. 7.160 R v Button and Swain [1966] 3 AC 591 ...................................................................................................... 13.215 R v Button and Swain [1966] AC 591 ......................................................................................................... 13.215 R v Button; R v Griffen (2002) 54 NSWLR 455 ............................................................................................ 11.165 R v Buttsworth [1983] 1 NSWLR 658 ................................................................................................ 3.225, 9.185 R v Byrne [1960] 2 QB 396 ...................................................................................................... 5.85, 5.115, 5.165 R v CRH (unreported, NSWCCA, 18 December 1996) .................................................................................... 3.25 R v Cagla Kucukeren (2008) 8 DCLR (NSW) 6 .............................................................................................. 8.130 R v Cahill [1978] 2 NSWLR 453 ......................................................................................................... 8.130, 8.135 R v Caird (1970) 54 Cr App R 499 .............................................................................................................. 13.200 R v Caldwell [1982] AC 341 ....................................................................................................................... 11.160 R v Caldwell [2009] VSCA 41 ......................................................................................................................... 8.95 R v Calhaem [1985] QB 808 ................................................................................................................. 7.25, 7.30 R v Callope [1965] Qd R 456 ......................................................................................................................... 5.70 R v Campbell [1933] St R Qd 123 .................................................................................................................. 8.85 R v Campbell [1991] Crim LR 268 .................................................................................................................. 8.50 R v Campbell [1997] 2 VR 585 ........................................................................................................ 10.55, 10.100 R v Camplin (1845) 1 Cox CC 220 ............................................................................................................... 11.60 R v Cao (unreported, 21–22/10/1999, NSWDC, Ford ADJC) ...................................................................... 14.145 R v Carr (unreported, 17/10/1990, NSWCCA) ........................................................................................... 10.160 R v Carr [1996] 1 VR 585 ............................................................................................................................... 4.80 R v Carter [1959] VR 105 ............................................................................................................................. 4.120 R v Carter [1990] 2 Qd R 371 ...................................................................................................................... 7.155 R v Carter (2003) 141 A Crim R 142 ............................................................................................................. 3.125 R v Cato [1976] 1 All ER 260; 1 WLR 110 .......................................................................................... 9.150, 9.220 R v Chan-Fook [1994] 2 ER 552 ................................................................................................................... 10.80 R v Chapin (1909) 74 JP 71 .......................................................................................................................... 10.95 R v Chapple (1840) 9 Car and P 355 ............................................................................................................ 7.160 R v Chellingworth [1954] QWN 35 ....................................................................................................... 8.35, 8.40 R v Cheshire [1991] 3 All ER 670; 1 WLR 844 .................................................................................... 3.125, 3.160 R v Chester [1982] Qd R 252 ............................................................................................................ 4.200, 5.105 R v Chief Constable of Sussex; Ex parte International Traders Ferry Ltd [1999] 2 AC 418 .............................. 13.85 R v Chisam (1963) 47 Cr App R 130 .............................................................................................................. 6.20 R v Chow (1987) 11 NSWLR 561 ............................................................................................................... 14.110 R v Chrastny (No 1) [1991] 1 WLR 1381 ........................................................................................... 8.105, 8.110 R v Chrichton [1915] SALR 1 ........................................................................................................................ 8.180 R v Christov [2006] NSWSC 972 .................................................................................................................... 5.85 R v Church [1966] 1 QB 59 ............................................................................................................... 3.365, 9.140 R v City of Sault St Marie (1978) 40 CCC (2d) 353; [1978] 2 SCR 1299 .......................................... 3.310, 14.140 R v Clarence (1888) 22 QBD 23 .............................................................................. 10.90, 10.95, 11.115, 11.120 R v Clark (1883) 15 Cox CC 171 .................................................................................................................. 9.255 R v Clark [2008] NSWCCA 122 .................................................................................................................. 11.245 R v Clarke (2008) 100 SASR 363 .................................................................................................................. 3.270 xxvii

Principles of Criminal Law

R v Clarke [2009] EWCA Crim 921 ............................................................................................................... 4.125 R v Clarke and Johnstone [1986] VR 643 ...................................................................................................... 14.95 R v Clarke and King [1962] Crim LR 836 ...................................................................................................... 5.165 R v Clarke and Wilton [1959] VR 645 ......................................................................................... 3.85, 7.80, 9.165 R v Clarkson [1971] 1 WLR 1402 .................................................................................................. 7.30, 7.45, 7.65 R v Clifford [1980] 1 NSWLR 314 ............................................................................................................... 13.135 R v Clough (1992) 28 NSWLR 396 .................................................................................................... 7.110, 7.120 R v Cockburn [1968] 1 All ER 466 ................................................................................................... 12.35, 12.215 R v Codere (1916) 12 Cr App R 21 ................................................................................................................. 4.55 R v Coe (1834) 6 Car & P 1295 ................................................................................................................... 9.220 R v Cogan and Leak [1976] 1 QB 217 ............................................................................................... 7.105, 7.150 R v Cogdon [1951] Res Jud 29 ....................................................................................................................... 4.95 R v Cohen (1868) 11 Cox CC 99 ................................................................................................................. 6.130 R v Coleman (1990) 19 NSWLR 467 ...................................................................................... 3.215, 4.180, 10.55 R v Coleman [2010] NSWSC 177 ................................................................................................................. 4.120 R v Collingridge (1976) 16 SASR 117 ............................................................................................................. 8.60 R v Collins (1986) 42 SASR 47 ........................................................................................................................ 2.60 R v Colmer (1864) 9 Cox CC 506 ................................................................................................................ 9.255 R v Coney (1882) 8 QBD 534; 15 Cox CC 46 ................................................................. 3.85, 7.30, 7.45, 10.140 R v Conlon (1993) 69 A Crim R 92 .................................................................................................... 6.45, 11.145 R v Connolly (1958) 76 WN (NSW) 184 ....................................................................................................... 4.200 R v Conway [1989] QB 290 .............................................................................................................. 6.165, 6.170 R v Cook (1870) 11 Cox CC 542 .................................................................................................................. 9.255 R v Cook (1994) 74 A Crim R 1 .................................................................................................................. 13.235 R v Cooke (1985) 39 SASR 225 ........................................................................................................... 4.210, 5.40 R v Cooper (1914) 14 SR (NSW) 426 ........................................................................................................... 3.330 R v Coote (1873) LR 4 PC 599 ..................................................................................................................... 3.315 R v Corbett [1903] St R Q 246 ..................................................................................................................... 4.215 R v Cordell [2009] VSCA 128 ............................................................................................................ 10.20, 10.30 R v Cottle [1958] NZLR 999 ......................................................................................................... 4.30, 4.90, 4.95 R v Court (1912) 7 Cr App R 127 ................................................................................................................. 6.125 R v Court [1989] 1 AC 28 ................................................................................................. 11.210, 11.215, 11.220 R v Cox (1992) 12 BMLR 38 .......................................................................................................................... 9.45 R v Cox [2006] SASC 188 ..................................................................................................................... 4.60, 4.65 R v Crabbe (1985) 156 CLR 464 .... 3.180, 3.185, 3.200, 3.205, 3.210, 3.215, 4.180, 9.115, 9.120, 9.125, 10.55 R v Cramp (1880) 5 QBD 307 ...................................................................................................................... 9.220 R v Creamer [1966] 1 QB 72 ........................................................................................................................ 9.150 R v Croft [1944] 1 KB 295 .............................................................................................................................. 7.90 R v Croft [1981] 1 NSWLR 126 ........................................................................................................... 4.210, 5.15 R v Cuerrier [1998] 2 SCR 371 ....................................................................................................... 11.115, 11.120 R v Cumpton (1880) 5 QBD 341 ................................................................................................................. 10.70 R v Cunningham [1982] AC 566 ....................................................................................................... 9.120, 10.80 R v D [1984] AC 778 .................................................................................................................................. 10.185 R v DPP; Ex parte Kebilene [2000] 2 AC 326; [1999] 3 WLR 972 ..................................................... 2.165, 14.125 R v Dale (1852) 6 Cox CC 14 ....................................................................................................................... 9.220 R v Dally [2000] NSWCCA 162 ..................................................................................................................... 4.210 R v Daniel [1997] QCA 139 .......................................................................................................................... 2.220 R v Daniels [1972] Qd R 323 ........................................................................................................................ 7.110 R v Daniels (1989) 1 WAR 435 .................................................................................................................... 11.145 R v Darby (1982) 148 CLR 668 .............................................................................................. 2.160, 7.110, 8.120 R v Darrington and McGauley [1980] VR 353 ................................................................................................ 6.70 R v Daviault [1994] 3 SCR 63 .............................................................................................................. 4.95, 4.225 R v Davidson [1969] VR 667 ............................................................................ 6.140, 6.150, 6.165, 6.175, 9.225 R v Davies [1975] 1 QB 691 ........................................................................................................................... 5.35 R v Davis (1881) 14 Coc CC 563 .................................................................................................................. 4.200 R v Davis [1955] Tas SR 52 ................................................................................................................ 9.140, 9.150 R v Dawson [1961] VR 773 .......................................................................................................................... 7.155 R v Dawson [1978] VR 536 .................................................................................... 6.70, 6.85, 6.90, 6.100, 6.110 R v Dawson (1985) 81 Cr App R 150 ................................................................................................ 9.150, 9.155 R v Day (1841) 9 C & P 722 ....................................................................................................................... 11.110 R v Day (1845) 1 Cox 207 ........................................................................................................................... 10.50 R v De Montero (2009) 25 VR 694 ............................................................................................................... 9.185 R v Delly [2003] ACTSC 113 ......................................................................................................................... 12.65 R v Demirian [1989] VR 97 ........................ 3.180, 3.205, 3.360, 4.180, 7.100, 7.105, 7.110, 7.120, 9.115, 10.55 R v Denbo Pty Ltd and Timothy Ian Nadenbousch (unreported ...................................................................... 3.40 R v Derham (1843) 1 Cox CC 56 ................................................................................................................. 9.255 R v Di Duca (1959) 43 Cr App R 167 ............................................................................................................ 4.200 xxviii

Table of Cases

R v Dib (2002) 134 A Crim R 329 ................................................................................................................... 5.55 R v Dica [2004] EWCA Crim 1103 ................................................................................................... 10.90, 11.120 R v Dick [1966] Qd R 301 ............................................................................................................................ 5.105 R v Dickie [1984] 3 All ER 173 ........................................................................................................................ 4.55 R v Dillon [2015] QCA 155 ............................................................................................................... 12.50, 12.65 R v Dillon; Ex parte Attorney-General (Qld) [2015] QCA 155 ........................................................................ 12.65 R v Dimozantos (1991) 56 A Crim R 345 ...................................................................................................... 8.180 R v Ditta [1988] Crim LR 42 ......................................................................................................................... 6.125 R v Dodd (1974) 7 SASR 151 ............................................................................... 3.105, 4.85, 4.95, 4.100, 4.170 R v Doherty (1887) 16 Cox CC 306 ............................................................................................................. 9.165 R v Donnelly [1970] NZLR 980 .................................................................................................................... 8.195 R v Donoghue [1914] VLR 195 ..................................................................................................................... 9.255 R v Donovan [1934] 2 KB 498; (1934) 25 Cr App R 1 .............................................. 10.80, 10.140, 11.20, 11.210 R v Doolan [2010] NSWSC 147 .................................................................................................................... 4.120 R v Doucette (1949) 93 CCC 202 ................................................................................................................ 9.220 R v Drummond [2008] NSWLC 10 ............................................................................................................. 11.245 R v Dubar [1994] 1 WLR 1484 ................................................................................................................... 12.175 R v Dudley and Stephens (1884) 14 QBD 273 ............................................................ 6.145, 6.150, 6.155, 6.165 R v Duffy (1901) 1 SR (NSW) 20 .................................................................................................................. 9.220 R v Duffy [1967] 1 QB 63; [1966] 2 WLR 229 ................................................................................................. 6.20 R v Duguid (1906) 94 LT 887 ....................................................................................................................... 8.115 R v Dunbar [1958] 1 QB 1 ........................................................................................................................... 5.120 R v Dutton (1979) 21 SASR 356 ..................................................................................................................... 5.25 R v Dykyj (1993) 29 NSWLR 672 .................................................................................................................. 3.200 R v Déry (2006) 213 CCC (3d) 289 .............................................................................................................. 8.170 R v Eagleton (1855) 6 Cox CC 559 ................................................................................................................ 8.40 R v Easom [1971] 2 QB 315 ....................................................................................................................... 12.220 R v Edwards [1956] QWN 16 ......................................................................................................................... 8.35 R v El Hassan (2001) 126 A Crim R 477 ........................................................................................................ 8.205 R v Ellames [1974] 1 WLR 1391 .................................................................................................................. 12.240 R v Ellis Don (1992) 71 CCC (3d) 63n .......................................................................................................... 3.310 R v Elomar (2010) 264 ALR 759; [2010] NSWSC 10 .............................................................................. 8.30, 8.90 R v Emmett [1999] EWCA Crim 1710 ......................................................................................................... 10.165 R v Ev Costa [1996] VSC 27 ....................................................................................................................... 11.160 R v Evans (1987) 48 SASR 35 ......................................................................................................................... 8.75 R v Evans & Gardiner (No 2) [1976] VR 523 ................................................................ 3.110, 3.125, 3.160, 3.180 R v Evans (Gemma) [2009] EWCA Crim 650 ................................................................................................ 9.165 R v Everingham (1949) 66 WN (NSW) 122 .................................................................................................. 10.35 R v Ewanchuk [1999] 1 SCR 330 ................................................................................. 2.205, 11.30, 11.60, 11.85 R v Ey (No 2) [2012] SASC 116 ...................................................................................................................... 3.25 R v F [2007] 2 All ER 193 ............................................................................................................................ 15.180 R v Falconer (1990) 171 CLR 30 ..... 2.175, 2.180, 4.30, 4.65, 4.70, 4.85, 4.90, 4.95, 4.115, 4.130, 4.140, 4.145, 4.200 R v Fan (1991) 24 NSWLR 60 ......................................................................................................................... 2.70 R v Farrar [1992] 1 VR 207 ............................................................................................................................. 5.10 R v Farrow (1857) 169 ER 961 ..................................................................................................................... 9.220 R v Faure [1999] 2 VR 537 ........................................................................................................................... 9.120 R v Feely [1973] QB 530 ............................................................................................. 3.330, 8.160, 12.35, 12.50 R v Fennell [1971] 1 QB 428 .......................................................................................................................... 6.20 R v Fenton (1975) 61 Cr App R 261 ............................................................................................................. 4.200 R v Ferreri [2006] QCA 443 .......................................................................................................................... 12.65 R v Finlayson (1864) 3 SCR (NSW) 301 ........................................................................................................ 12.20 R v Fisher (1837) 8 Car and P 182; 173 ER 452 .............................................................................................. 5.40 R v Fitzmaurice [1983] QB 1083 .................................................................................................................. 8.220 R v Flanagan and others [1827] NSWKR 1 .................................................................................................... 15.15 R v Flannery [1969] VR 31 .......................................................................................................................... 11.145 R v Flattery (1877) 2 QBD 410 ................................................................................................................... 11.120 R v Fleming and Robinson [1989] Crim LR 658 .......................................................................................... 13.220 R v Fletcher [1962] Crim LR 551 .................................................................................................................... 7.90 R v Forbes & Webb (1865) 10 Cox CC 362 .................................................................................................. 10.70 R v Ford [2003] NSWCCA 5 ......................................................................................................................... 2.190 R v Foster (1990) 14 Crim LJ 289 ................................................................................................................... 6.80 R v Foy [1960] Qd R 225 ...................................................................................................................... 4.30, 4.95 R v Fricker (1986) 42 SASR 436 ...................................................................................................................... 5.35 R v Fry (1992) 58 SASR 424 .............................................................................................................. 5.10, 10.120 R v Fursey (1833) 6 C & P 80 ..................................................................................................................... 13.200 R v G [2004] 1 AC 1034 ....................................................................................................... 3.220, 9.120, 11.160 xxix

Principles of Criminal Law

R v GAP (2010) 109 SASR 1 ......................................................................................................................... 11.65 R v Gabriel (2004) 182 FLR 102 ................................................................................................................... 10.40 R v Galderwood and Moore [1986] 2 WLR 294 ............................................................................................ 6.105 R v Gardner [2012] QSC 73 ......................................................................................................................... 6.170 R v Garrett (1988) 30 SASR 392 ................................................................................................................. 10.185 R v George (1868) 11 Cox CC 41 ................................................................................................................ 9.255 R v Ghosh [1982] 1 QB 1053 ....................................................................................................................... 3.330 R v Ghosh [1982] QB 1053; 3 All ER 689 ....................................................................... 2.25, 8.160, 12.50, 12.55 R v Gilks [1972] 1 WLR 1341 ...................................................................................................................... 12.190 R v Giorgi (1982) 31 SASR 299 ............................................................................................................. 7.25, 7.65 R v Gittens [1984] QB 698 ....................................................................................................... 4.200, 5.90, 5.105 R v Glenister [1980] 2 NSWLR 597 ............................................................................................................... 12.35 R v Glennan (1970) 91 WN (NSW) 609 ......................................................................................................... 7.70 R v Gomez [1993] AC 442 ......................................................................................................................... 12.100 R v Goodfellow (1986) 83 Cr App R 23 ........................................................................................................ 9.150 R v Gordon (1963) 63 SR(NSW) 631 ............................................................................................................ 4.180 R v Gordon [1964] NSWR 1024 ................................................................................................................... 4.180 R v Gorman (unreported, 15/5/1997, NSWCCA, Gleeson CJ, Hunt and Sperling JJ, 60373/95) .................... 9.190 R v Gorrie (1918) 83 JP 136 ........................................................................................................................... 3.25 R v Gose [2009] VSCA 66 ........................................................................................................................... 11.150 R v Gotts [1992] 2 AC 412 ............................................................................................................................. 6.70 R v Gould and Barnes [1960] Qd R 283 ....................................................................................................... 3.285 R v Graham (1888) 16 Cox CC 420 ........................................................................................................... 13.230 R v Graham [1982] 1 WLR 294; 1 All ER 801 .................................................................................................. 6.95 R v Grant (2002) 55 NSWLR 80 ................................................................................................................... 4.190 R v Greenberg [1972] Crim LR 331 ............................................................................................................ 12.195 R v Griffiths [1966] 1 QB 589 ....................................................................................................................... 8.105 R v Grimes [1968] 3 All ER 179 .......................................................................................................... 8.130, 8.145 R v Grimwood [1962] 2 QB 621 .................................................................................................................. 10.65 R v Grundy [1977] Crim LR 543 ..................................................................................................................... 7.90 R v Gullefer [1990] 3 All ER 882 ..................................................................................................................... 8.35 R v Gulyas (1985) 2 NSWLR 260 .................................................................................................................. 8.205 R v Gunn (1930) 30 SR (NSW) 336 ................................................................................................................ 8.95 R v Guthrie (1981) 52 FLR 171 ............................................................................................... 4.155, 4.175, 4.195 R v Gwillin [1823] NSWKR 5 ........................................................................................................................ 12.20 R v Hadfield (1800) 27 St Tr 1281 .................................................................................................................. 4.60 R v Hall [1972] 2 All ER 1009 ...................................................................................................................... 12.175 R v Hallett [1969] SASR 141 ........................................................................................ 3.120, 3.125, 3.135, 3.160 R v Hamilton (1985) 31 A Crim R 167 .......................................................................................................... 4.155 R v Hancock [1963] Crim LR 572 ................................................................................................................. 12.35 R v Hancock; R v Shankland [1986] AC 455 ................................................................................................. 3.185 R v Hansford (1974) 8 SASR 164 ........................................................................................................... 2.60, 2.70 R v Harding [1976] VR 129 ................................................................................................................... 6.70, 6.80 R v Harkin (1989) 38 A Crim R 296 ................................................................................................ 11.215, 11.220 R v Harley (1830) 172 ER 744; [1830] 4 C & P 369 ........................................................................... 7.105, 9.220 R v Harris [1964] Crim LR 54 .......................................................................................................................... 7.50 R v Hart [1986] 2 NZLR 408 ......................................................................................................................... 4.180 R v Hart (2014) SCC 52 ............................................................................................................................. 14.235 R v Hartridge (1966) 57 DLR (2d) 332 ......................................................................................................... 4.100 R v Harvey and Ryan [1971] Crim LR 664 ..................................................................................................... 5.165 R v Haydon (1845) 1 Cox CC 184 ................................................................................................................ 9.220 R v Hayes (1976) 64 Cr App R 82 ............................................................................................................... 12.175 R v Hayes (Tom Alexander) [2015] EWCA Crim 1944 ................................................................................... 12.60 R v Haywood [1971] VR 755 ......................................................................................... 3.105, 4.85, 4.170, 9.150 R v Hemsley (1988) 36 A Crim R 334 ......................................................................................................... 11.160 R v Hennah (1877) 13 Cox CC 547 .............................................................................................................. 9.220 R v Hennessey [1976] Tas SR (NC) 4 ............................................................................................................ 12.20 R v Hennessy [1989] 1 WLR 287 ................................................................................................ 4.30, 4.95, 4.125 R v Hersington [1983] 2 NSWLR 72 ............................................................................................................. 8.140 R v Hewitt and Smith (1866) 4 F & F 1101 .................................................................................................. 9.255 R v Hickey (1992) 16 Crim LJ 271 .................................................................................................................. 6.65 R v Hicklin (1868) LR 3 QB 360 ..................................................................................................... 11.225, 11.230 R v Higgins (1801) 2 East 5 ............................................................................................................... 8.175, 8.180 R v Higley (1830) 4 C & P 366 ..................................................................................................................... 9.255 R v Hill [1986] 1 SCR 313; (1986) Cr App R 386 .................................................................................. 5.45, 9.220 R v Hilton (1977) 34 CCC (2d) 206 .............................................................................................................. 4.150 R v Hoar (1981) 148 CLR 32 ........................................................................................................................ 8.190 xxx

Table of Cases

R v Hoare & Heavey [1965] NSWR 1167 ...................................................................................................... 10.65 R v Hobson (1823) 1 Lew CC 261 ................................................................................................................ 2.165 R v Hodges (1985) 19 A Crim R 129 ............................................................................................................... 4.45 R v Holey [1963] 1 All ER 106 ....................................................................................................................... 7.160 R v Holland (1841) 2 M & Rob 351; 174 ER 313 .......................................................................................... 3.150 R v Holloway (1849) 3 Cox 241 ................................................................................................................... 12.35 R v Holmes [1960] WAR 122 .......................................................................................................................... 4.95 R v Holness [1970] Tas SR 74 ....................................................................................................................... 9.170 R v Holzer [1968] VR 481 .................................................................................................................. 9.140, 9.155 R v Hopkins [2011] VSC 517 .......................................................................................................................... 4.25 R v Hopley (1860) 2 F & F 202 .................................................................................................................. 10.135 R v Hornbuckle [1945] VLR 281 ................................................................................................................... 4.180 R v Horsington [1983] 2 NSWLR 72 .................................................................................................. 8.130, 8.160 R v Howe (1958) 100 CLR 448 ..................................................................................................... 6.30, 6.50, 6.55 R v Howe [1987] AC 417 ......................................................................................................... 6.70, 6.145, 6.150 R v Howell [1974] 2 All ER 806 ..................................................................................................................... 4.180 R v Howell [1982] QB 416 ........................................................................................................................... 13.60 R v Howes (1971) 2 SASR 293 ........................................................................................................... 8.130, 8.160 R v Howes [2000] VSC 159 ........................................................................................................................ 11.190 R v Hudson [1971] 2 QB 202 .............................................................................................................. 6.90, 6.110 R v Hughes (1850) 4 Cox CC 447 ................................................................................................................ 9.255 R v Hughes (2000) 202 CLR 535 .................................................................................................................... 2.75 R v Humphreys and Turner [1965] 3 All ER 689 ............................................................................................ 7.110 R v Hung Duc Dang [2001] NSWCCA 321 ................................................................................................... 7.145 R v Hunt (1820) 1 State Tr NS 435 ............................................................................................................. 13.200 R v Hunt (1845) 1 Cox CC 177 .................................................................................................................. 13.230 R v Hunter [1988] 1 Qd R 663 ....................................................................................................................... 5.40 R v Hurley and Murray [1967] VR 526 .............................. 6.70, 6.75, 6.80, 6.85, 6.90, 6.95, 6.100, 6.105, 7.160 R v Hutty [1953] VR 338 ................................................................................................................................ 9.30 R v ICR Haulage Ltd [1944] KB 551 ..................................................................................................... 3.35, 8.110 R v Iannazzone [1983] 1 VR 649 .................................................................................................................. 3.295 R v Iby (2005) 63 NSWLR 278 ....................................................................................................................... 9.30 R v Instan [1893] 1 QB 450; (1893) 17 Cox CC 602 ................................................................ 3.85, 9.165, 9.190 R v Ireland; R v Burstow [1998] AC 147; [1997] 4 All ER 225 .......................... 2.205, 10.30, 10.80, 10.95, 10.175 R v Irwin (2006) 94 SASR 480 ...................................................................................................................... 8.205 R v Isaacs (1862) 169 ER 1371 ..................................................................................................................... 9.220 R v Isitt (1978) 67 Cr App R 44 ........................................................................................................... 4.95, 4.100 R v JJ Alford Transport Ltd [1997] Crim LR 745 ............................................................................................... 7.50 R v Jack [2002] ACTSC 90 .......................................................................................................................... 12.135 R v Jackson [1891] 1 QB 671 .......................................................................................................... 10.135, 13.40 R v Jacob [1932] SASR 456 ........................................................................................................................... 9.255 R v Jadurin (1982) 7 A Crim R 182 ............................................................................................................... 2.225 R v Jarmain [1945] 2 All ER 613 .................................................................................................................... 9.140 R v Jarvis (1837) 2 Mood & R 40 .................................................................................................................. 7.160 R v Jefferson [1994] 1 All ER 270 ................................................................................................................ 13.220 R v Jeffrey [1967] VR 467 ............................................................................................................................... 5.40 R v Jensen and Ward [1980] VR 194 ............................................................................................................... 7.90 R v Jervis [1993] 1 Qd R 643 .......................................................................................................................... 2.25 R v Jimmy Balir (1951–1976) NTJ 633 ............................................................................................................ 5.60 R v Jogee; Ruddock v The Queen [2016] UKSC 8; [2016] UKPC 7 ..................................................... 7.135, 7.140 R v Johns (unreported, 26/8/1992, SASC, No SCCRM/91/452) ......................................................... 11.25, 11.85 R v Johnson [1964] Qd R 1 ................................................................................................. 5.10, 6.30, 6.50, 6.55 R v Johnston [1973] Qd R 303 ..................................................................................................................... 12.20 R v Johnstone [2003] 3 All ER 884 ................................................................................................................ 2.165 R v Jones (1832) 4 B & As 345 ..................................................................................................................... 8.130 R v Jones [1949] 1 KB 194 ........................................................................................................................... 7.175 R v Jordan (1956) 40 Cr App R 152 .............................................................................................................. 3.160 R v Joudrie (unreported, 9/5/1996, Court of Queen’s Bench, Alberta, No 9501–1280–C6) ............................ 4.95 R v Joyce [1970] SASR 184 .................................................................................................................. 4.70, 4.100 R v K (1970) 3 CCC (2d) 84 ........................................................................................................................... 4.95 R v K (1993) 118 ALR 596 ............................................................................................................................ 10.70 R v Kaeser [1961] QWN 11 .......................................................................................................................... 4.180 R v Kageregere [2011] SASC 154 ................................................................................................................. 9.130 R v Kalajdic and Italiano (2005) 157 A Crim R 300 ......................................................................................... 8.75 R v Kamipeli [1975] 2 NZLR 610 .................................................................................................................. 4.155 R v Kampeli [1975] 2 NZLR 610 ................................................................................................................... 4.180 R v Katarzynski [2002] NSWSC 613 ................................................................................................................ 6.45 xxxi

Principles of Criminal Law

R v Keenan (2009) 236 CLR 397 .................................................................................................................. 7.120 R v Kellett [1976] QB 372 ............................................................................................................................ 8.145 R v Kemp [1957] 1 QB 399 ................................................................................................................. 4.30, 4.120 R v Kempley (1944) 44 SR (NSW) 416 ......................................................................................................... 8.130 R v Keogh [1964] VR 400 .................................................................................................................... 4.95, 4.170 R v Khan [1990] 2 All ER 783 .......................................................................................................................... 8.75 R v Khawaja (2006) 214 CCC (3d) 399 .......................................................................................................... 8.30 R v Khawaja 2010 ONCA 862 ........................................................................................................................ 8.30 R v Khawaja [2012] 3 SCR 555 ....................................................................................................................... 8.30 R v Kimber [1981] 1 WLR 1118 .................................................................................................................. 11.210 R v King (2003) 59 NSWLR 472 ..................................................................................................................... 9.30 R v King (2004) 155 ACTR 55 ........................................................................................................................ 4.65 R v Kingston [1994] 3 WLR 519 ................................................................................................................... 4.155 R v Kirkby (1985) 21 CCC (3d) 31 ...................................................................................................... 4.55, 4.150 R v Kitchener (1993) 29 NSWLR 696 ............................................................................................... 11.10, 11.160 R v Kjeldsen (1981) 64 CCC (2d) 161 ............................................................................................................ 4.55 R v Knight (1998) 35 A Crim R 31 ................................................................................................................ 10.30 R v Kontinnen (1992) 16 Crim LJ 360 ............................................................................................................ 6.65 R v Konzani [2004] EWCA 706 ................................................................................................................... 11.120 R v Kovacs [1974] 1 WLR 370 .................................................................................................................... 12.280 R v Krause (1902) 66 JP 1902 ....................................................................................................................... 8.180 R v Kron (1995) 78 A Crim R 474 ................................................................................................................... 2.60 R v Kumar [2002] 5 VR 193 ................................................................................................................. 5.25, 5.150 R v Kusu [1981] Qd R 136 ................................................................................................................ 4.170, 4.215 R v Kuzmenko [1968] QWN 49 .................................................................................................................... 4.200 R v L (1991) 174 CLR 379 ............................................................................................................... 11.65, 11.175 R v LK (2010) 241 CLR 177 ...................................................................................................... 8.75, 8.150, 8.165 R v Lacjance [1963] 2 CCC 14 ..................................................................................................................... 4.150 R v Lamb [1967] 2 QB 981 .................................................................................................... 9.150, 9.170, 10.35 R v Lambert [2001] 3 All ER 577 ................................................................................................................... 2.165 R v Lambie [1982] AC 449 ......................................................................................................................... 12.285 R v Lamoureux [2012] 3 SCR 187 .............................................................................................................. 14.125 R v Landry (1991) 62 CCC (3d) 117 ............................................................................................................... 4.55 R v Lane [1983] 2 VR 449 ............................................................................................................................... 6.30 R v Langford (1842) 174 ER 653 ................................................................................................................ 13.230 R v Lapier (1784) 168 ER 263 ....................................................................................................................... 12.20 R v Larkin [1943] 1 All ER 217 ...................................................................................................................... 9.140 R v Latimer (1886) 17 QBD 359 ........................................................................................................ 3.180, 3.190 R v Laurie [1987] 2 Qd R 762 ....................................................................................................................... 12.65 R v Lavallee [1990] 1 SCR 852 ....................................................................................................................... 6.65 R v Lavender (2004) 41 MVR 492 ................................................................................................................ 3.225 R v Lavender (2005) 222 CLR 67 ....................................................................................................... 3.225, 9.170 R v Laverty [1970] 3 All ER 432 .................................................................................................................. 12.285 R v Law (2007) 176 A Crim R 350 ................................................................................................................ 6.170 R v Lawrence [1980] 1 NSWLR 122 ............................................................................................ 6.70, 6.80, 6.110 R v Lawrence [1982] AC 510 ........................................................................................................................ 3.220 R v Lawson [1986] VR 515 ............................................................................................................................. 6.35 R v Le Brun [1991] 4 All ER 673 .................................................................................................................... 3.365 R v Leaf-Milham (1987) 47 SASR 499 ........................................................................................................... 4.155 R v Lechasseur (1977) 38 CCC (2d) 319 ...................................................................................................... 4.150 R v Lee (1990) 1 WAR 411 ................................................................................................................. 8.190, 8.205 R v Lees [1999] NSWCCA 301 ........................................................................................................................ 5.25 R v Leff (1996) 86 A Crim R 212 ................................................................................................................. 14.110 R v Leonboyer [2001] VSCA 149 ......................................................................................................... 4.90, 4.105 R v Lesley (1860) Bell CC 220 .................................................................................................................... 10.185 R v Levy [1912] 1 KB 158 ............................................................................................................................. 7.160 R v Lew; R v Ng [2003] NSWSC 781 .............................................................................................................. 7.95 R v Lewis [1970] Crim LR 647 ...................................................................................................................... 10.40 R v Lifchus [1997] 3 SCR 320 ....................................................................................................................... 2.180 R v Lindner [1938] SASR 412 ....................................................................................................................... 9.220 R v Lindsay [2014] SASCFC 56 ..................................................................................................... 5.40, 5.45, 5.55 R v Lloyd [1967] 1 QB 175 ........................................................................................................................... 5.115 R v Lloyd [1985] QB 829 ............................................................................................................... 12.205, 12.210 R v Lobston [1983] 2 Qd R 720 .................................................................................................................... 9.120 R v Lock (unreported, Ipswich Crown Court, 22 January 2013) .................................................................... 11.20 R v Lodhi [2005] NSWSC 1377 .................................................................................................................. 15.190 R v Lodhi [2006] NSWCCA 121 .................................................................................................................. 15.190 xxxii

Table of Cases

R v Lodhi [2006] NSWSC 584 .................................................................................................................... 15.190 R v Lomas (1913) 9 Cr App R 220 .................................................................................................................. 7.50 R v London Quarter Sessions; Ex parte Metropolitan Police Commissioner [1940] KB 670 ............................ 13.20 R v Londonderry Justices (1891) 28 LR Ir 440 ............................................................................................... 13.85 R v Looseley [2001] 4 All ER 897 ......................................................................... 14.215, 14.220, 14.225, 14.230 R v Lopuszynski [1971] QWN 33 .................................................................................................................. 7.110 R v Loughnan [1981] VR 443 ................................................................ 6.140, 6.155, 6.160, 6.165, 6.170, 6.175 R v Love (1989) 17 NSWLR 608 ...................................................................................................... 3.330, 12.280 R v Lovet [1986] 1 Qd R 52 .......................................................................................................................... 4.180 R v Lovett [1975] VR 488 ............................................................................................................................. 10.55 R v Lowe [1827] NSWSupC 32 ...................................................................................................................... 2.50 R v Lowe [1973] 1 QB 702 ........................................................................................................................... 9.190 R v Lowery (No 2) [1972] VR 560 ...................................................................................................... 7.110, 7.120 R v Lynsey [1995] 3 All ER 654 ..................................................................................................................... 10.15 R v M [1977] 16 SASR 589 ............................................................................................................................. 3.25 R v M (unreported, 18/3/1994, VSC, Hampel J) ............................................................................................. 4.95 R v MacDonald (1951–1976) NTJ 186 ........................................................................................................... 5.60 R v Macdonald [1904] QSR 151 ..................................................................................................................... 7.80 R v Machirus [1996] 6 NZLR 404 ................................................................................................................. 8.145 R v Mack (1988) 44 CCC (3d) 513 ................................................................................................ 14.220, 14.230 R v Mack [2014] SCC 58 ............................................................................................................................ 14.235 R v Madden (1975) 1 WLR 1379 ................................................................................................................ 13.135 R v Maes [1975] VR 541 .................................................................................................................. 11.95, 11.145 R v Mahroof [1989] Crim LR 72 ................................................................................................................. 13.220 R v Mai (1992) 26 NSWLR 371 .................................................................................................................... 8.205 R v Mainwaring (1981) 74 Cr App R 99 ..................................................................................................... 12.175 R v Makin (2004) 8 VR 262 ............................................................................................................................ 7.05 R v Malcharek; R v Steel [1981] 2 All ER 422; 1 WLR 690 ................................................................... 3.160, 3.165 R v Malcolm [1951] NZLR 470 ....................................................................................................................... 7.90 R v Maloney (1901) 18 WN (NSW) 96 ......................................................................................................... 7.175 R v Manchester Crown Court [2003] 1 AC 787; [2002] UKHL 39 ...................................................... 2.185, 13.25 R v Mansfield (unreported, acquittal 5/5/1994, VSC, Hampel J) ............................................... 4.95, 4.100, 4.130 R v Mappin (1904) 6 WALR 161 ................................................................................................................... 9.255 R v Margach (2007) 173 A Crim R 149 ........................................................................................................... 5.60 R v Mark (1902) 28 VLR 610 ........................................................................................................................ 12.25 R v Marlow (1964) 49 Cr App R 49 .............................................................................................................. 9.220 R v Marshall (1987) 49 SASR 133 ............................................................................................................... 10.120 R v Martin (1881) 8 QBD 54 ........................................................................................................................ 10.95 R v Martin [1979] Tas R 211; (1979) 1 A Crim R 85 ........................................................................... 4.170, 4.180 R v Martin [1989] 1 All ER 652 ..................................................................................................................... 6.175 R v Martin (No 1) (2005) 159 A Crim R 314 ................................................................................................... 4.25 R v Martineau (1990) 58 CCC (3d) 353 ....................................................................................................... 9.130 R v Marwey (1977) 138 CLR 630 ................................................................................................................... 6.50 R v Mason (unreported, 2015) ................................................................................................................... 11.125 R v Masters (1992) 26 NSWLR 450 ................................................................................................................ 8.85 R v Matchett [1980] 2 WWR 122 ................................................................................................................. 4.100 R v Mathieson (1906) 25 NZLR 879 ............................................................................................................. 4.180 R v Matthews [1972] VR 3 ........................................................................................................................... 8.145 R v Mawgridge (1707) 84 ER 1107 ................................................................................................................ 5.10 R v Maybery [1973] Qd R 211 ........................................................................................................................ 7.30 R v McBride [1962] 2 QB 167 ........................................................................................................... 4.155, 4.175 R v McCallum [1969] Tas SR 73 ............................................................................................. 9.140, 9.150, 9.155 R v McConnell, McFarland and Holland [1977] 1 NSWLR 714 ............................................................ 3.365, 6.70 R v McCormack [1969] 2 QB 442 ................................................................................................................ 10.50 R v McCormack [1981] VR 104 .................................................................................................................. 13.230 R v McCullough [1982] Tas R 43 .................................................................................................................. 3.285 R v McDonald [1992] 2 Qd R 634 ................................................................................................................ 12.20 R v McDonnell [1966] 1 QB 233 .................................................................................................................. 8.110 R v McDonough (1962) 47 Cr App R 37 ...................................................................................................... 8.220 R v McDougall [2011] ATSC 51 ............................................................................................................. 6.45, 6.60 R v McEwan [1979] 2 NSWLR 926 ............................................................................................................. 11.145 R v McGarvie (1986) 5 NSWLR 270 .................................................................................................... 5.85, 5.100 R v McGrath and Simonidis [1983] 2 Qd R 54 ............................................................................................. 8.140 R v McGregor [1962] NZLR 1069 ......................................................................................................... 5.40, 5.50 R v McGuckin [2014] ACTSC 242 ................................................................................................................. 10.20 R v McGuigan and Cameron [1991] Crim LR 719 ...................................................................................... 13.220 R v McIntosh [1999] VSC 358 .................................................................................................................... 10.165 xxxiii

Principles of Criminal Law

R v McKay [1957] VR 560 ............................................................................................................ 6.25, 6.30, 6.55 R v McKechie [1926] NZLR 1 ....................................................................................................................... 8.110 R v McKenna [1960] 1 QB 411 .................................................................................................................... 7.160 R v McMaster [2007] VSC 13 ....................................................................................................................... 9.250 R v McNally [2013] EWCA Crim R 1051 ..................................................................................................... 11.125 R v McNamara [1954] VLR 137 .................................................................................................................... 10.35 R v Meachen [2006] EWCA Crim 2414 ......................................................................................................... 11.20 R v Meddings [1966] VR 306 .......................................................................................... 4.30, 4.95, 4.120, 4.200 R v Meech [1973] 3 All ER 939 ................................................................................................................... 12.175 R v Meloche (1975) 34 CCC (2d) 184 .......................................................................................................... 4.150 R v Menniti [1985] 1 Qd R 520 ...................................................................................................................... 7.90 R v Metharam [1961] 3 All ER 200 ............................................................................................................... 10.80 R v Metropolitan Police Commissioner; Ex parte Blackburn [1968] 2 QB 118 ............................................. 13.125 R v Michael (1840) 2 Mood 121; 169 ER 48; 9 Car & P 356 .............................................................. 3.180, 7.105 R v Middleton (1873) LR 2 CCR 38 ............................................................................................................ 12.180 R v Miers [1985] 2 Qd R 138 ........................................................................................ 4.170, 4.200, 5.90, 5.105 R v Millar [1970] 2 QB 54 .............................................................................................................................. 7.65 R v Miller [1951] VLR 346 ................................................................................................................. 9.120, 10.80 R v Miller [1954] 2 QB 282 .......................................................................................................................... 10.80 R v Miller (1980) 25 SASR 170 ....................................................................................................................... 7.65 R v Miller [1982] 2 All ER 386 ....................................................................................................................... 9.190 R v Miller [1983] 2 AC 161 ........................................................................ 3.05, 3.85, 3.360, 3.365, 3.370, 9.165 R v Miller [2009] QCA 11 ............................................................................................................................... 5.60 R v Milton [2002] NSWCCA 124 ................................................................................................................ 11.160 R v Minor (1955) 112 CCC 29 ....................................................................................................................... 4.95 R v Minor (1992) 59 A Crim R 227 .................................................................................................... 2.220, 2.225 R v Mobilio [1991] 1 VR 339 ......................................................................................................... 11.115, 11.120 R v Moffatt [1998] 2 CR 229 .......................................................................................................................... 4.80 R v Mohan [1976] QB 1 ............................................................................................................................... 4.180 R v Moloney [1985] AC 905 ......................................................................................................................... 3.185 R v Momcilovic (2010) 25 VR 436 ................................................................................................................ 2.170 R v Monkhouse (1849) 4 Cox CC 55 ............................................................................................................ 4.155 R v Moore (1908) 10 WALR 64 ....................................................................................................................... 4.65 R v Morgan; Ex parte Attorney-General [1987] 2 Qd R 627 ............................................................... 4.200, 5.105 R v Morhall [1995] 3 All ER 659 ...................................................................................................................... 5.50 R v Morris (1848) 2 Cox CC 489 .................................................................................................................. 9.255 R v Morris [1961] 2 QB 237 ........................................................................................................................... 5.85 R v Morris [1984] AC 320 ........................................................................................................................... 12.100 R v Morris (Clarence Barrington) [1998] Cr App R 386 ................................................................................. 10.80 R v Most (1801) 2 East 5 .............................................................................................................................. 8.180 R v Motlop [2013] QCA 301 ...................................................................................................................... 11.110 R v Mowatt [1968] 1 QB 421 .......................................................................................................... 10.55, 10.100 R v Mrzljak [2005] 1 Qld R 308 .................................................................................................................. 11.145 R v Muddarubba (1951–1976) NTJ 317 ......................................................................................................... 5.60 R v Mullen (1938) 59 CLR 124 ............................................................................................... 2.160, 2.175, 2.180 R v Munday (2003) 7 VR 432 ..................................................................................................................... 11.150 R v Muranyi (1986) 8 Cr App R (S) 176 ...................................................................................................... 13.230 R v Muratovic [1967] Qd R 15 ....................................................................................................................... 6.40 R v Murphy (1985) 158 CLR 596 ...................................................................................................... 8.130, 8.145 R v Murray [1980] 2 NSWLR 526 ................................................................................................................. 4.155 R v Murray (1987) 11 NSWLR 12 ............................................................................................................... 11.160 R v Murray Wright Ltd [1970] NZLR 476 ........................................................................................................ 3.35 R v Murrell (1836) 172 .................................................................................................................................. 2.50 R v Mursic [1980] Qd R 482 ........................................................................................................................... 4.30 R v Narden (1873) 12 SCR(NSW) 160 .......................................................................................................... 9.255 R v Narongchai Saengsai [2004] NSWCCA 425 .......................................................................................... 14.140 R v Nedrick [1986] 3 All ER 1 ....................................................................................................................... 3.185 R v Nelson (1951–1976) NTJ 327 .................................................................................................................. 5.60 R v Newland (unreported, 2015) ............................................................................................................... 11.125 R v Newman [1948] VLR 61 .............................................................................................................. 5.35, 10.130 R v Nghia Trong Nguyen (Ruling No 2) [2010] VSC 442 .............................................................................. 9.150 R v Nicholson [1916] VR 130 ....................................................................................................................... 10.95 R v Nielsen [1990] 2 Qd R 578 ................................................................................................. 4.200, 5.85, 5.105 R v Nundah (1916) 16 SR (NSW) 482 .......................................................................................................... 3.330 R v Nuri [1990] VR 641 .............................................................................................................................. 10.180 R v O’Connor (1980) 146 CLR 64 ................................................ 2.175, 4.95, 4.155, 4.165, 4.170, 4.180, 10.55 R v O’Connor aka Coble [2013] NSWDC 272 .............................................................................................. 11.75 xxxiv

Table of Cases

R v O’Neill [1982] VR 150 ............................................................................................................................ 4.210 R v O’Regan [1961] Qd R 78 ........................................................................................................................ 4.180 R v O’Sullivan (1948) 54 WN (NSW) 155 ................................................................................................... 13.200 R v Oakes [1986] 1 SCR 103 ...................................................................................................................... 14.125 R v Oblach (2005) 195 FLR 212 ..................................................................................................................... 6.85 R v Offley (1986) 51 CR (3d) 378 ............................................................................................................... 12.145 R v Olugboja [1982] QB 320 ................................................................................................ 11.50, 11.85, 11.110 R v Orton [1922] VLR 469 ................................................................................................................... 8.95, 8.130 R v Osip (2000) 2 VR 569 ............................................................................................................................. 3.225 R v Osland [1998] 2 VR 636 ......................................................................................................................... 7.110 R v P & O European Ferries (Dover) Ltd (1991) 93 Cr App R 73 ...................................................................... 3.35 R v Packett (1937) 58 CLR 190 .................................................................................................................... 2.160 R v Page [1933] VLR 351 ................................................................................................................................ 8.60 R v Pagett (1983) 76 Cr App R 279 ........................................................................................ 3.110, 3.125, 3.160 R v Palazoff (1986) 43 SASR 99 ....................................................................................... 6.70, 6.85, 6.110, 6.175 R v Panayiotou [1973] 2 All ER 112 .............................................................................................................. 8.145 R v Pangilinan [2001] 1 Qd R 56 .................................................................................................................... 5.40 R v Pantelic (1973) 21 FLR 253 .................................................................................................................... 4.100 R v Park [1995] 2 SCR 836 ......................................................................................................................... 11.150 R v Parks [1992] 2 SCR 871 ................................................................................................................. 4.95, 4.115 R v Parmenter [1991] 3 WLR 914 ................................................................................................................. 10.50 R v Parsons [1998] 2 VR 478 ...................................................................................................................... 12.135 R v Patel [2010] QSC 199 ............................................................................................................................ 9.180 R v Patel (No 7) [2013] QSC 65 ................................................................................................................... 6.165 R v Patel; Ex parte Attorney-General (Qld) [2011] QCA 81 ........................................................................... 9.180 R v Patipatu (1951–1976) NTJ 18 ................................................................................................................... 5.60 R v Patterson [1962] 2 QB 429 ................................................................................................................... 12.240 R v Patton [1998] 1 VR 7 .............................................................................................................................. 10.15 R v Paxman (unreported, 21/6/1995, NSWDC) ........................................................................................... 4.160 R v Pear (1779) 168 ER 208 ......................................................................................................................... 12.25 R v Percali (1986) 42 SASR 46 .................................................................................................................... 10.100 R v Perks (1986) 41 SASR 335 .............................................................................. 4.155, 4.210, 5.40, 6.80, 10.80 R v Perry (1847) 2 Cox CC 223 .................................................................................................................... 9.220 R v Perry (1855) Dears CC 471 .................................................................................................................... 9.255 R v Phillips (1971) 45 ALJR 467; ALR 740 ......................................................................................... 9.140, 10.115 R v Pickard [1959] Qd R 475 .......................................................................................................................... 6.90 R v Pink [2001] 2 NZLR 860 ........................................................................................................................... 7.90 R v Pius Piane [1975] PNGLR 52 ........................................................................................................ 6.165, 6.170 R v Pollard [1962] QWN 13 ......................................................................................................................... 3.330 R v Porter (1933) 55 CLR 182 ............................................................................................................... 4.60, 4.70 R v Potisk (1973) 6 SASR 389 ..................................................................................................................... 12.180 R v Potter (unreported, 16/10/1993, NSWDC, Judge Dent QC) ................................................................... 6.165 R v Powell [1962] QWN 123 ........................................................................................................................ 12.35 R v Powell [1997] 3 WLR 959 ....................................................................................................................... 7.120 R v Preddy [1996] AC 815 .......................................................................................................................... 12.135 R v Price [1969] 1 QB 541 ............................................................................................................................ 9.220 R v Prior (1992) 91 NTR 53 .......................................................................................................................... 8.205 R v Pryor [2001] QCA 341 ............................................................................................................................ 11.95 R v Purdy [1982] 2 NSWLR 964 ..................................................................................................................... 5.85 R v Quick [1973] QB 910 .................................................................................................................... 4.95, 4.125 R v R (1981) 28 SASR 321 ................................................................................. 5.15, 5.25, 5.30, 5.35, 5.40, 5.75 R v R [1992] 1 AC 599 .......................................................................................................... 11.65, 11.80, 11.175 R v Rabey (1977) 37 CCC (2d) 461 ................................................................................. 4.30, 4.95, 4.115, 4.125 R v Rabey (1981) 54 CCC 1 ........................................................................................................................... 4.95 R v Radford (1985) 42 SASR 266 .......................................................................... 4.30, 4.95, 4.100, 4.130, 4.140 R v Radford (No 2) (1987) 11 Crim LJ 231 ................................................................................................... 4.130 R v Ramage [2004] VSC 391 ........................................................................................................................ 5.155 R v Ramage [2004] VSC 508 ........................................................................................................................ 5.155 R v Ransford (1874) 13 Cox CC 9 ................................................................................................................ 8.180 R v Rau [1972] Tas SR 59 .............................................................................................................................. 9.140 R v Ready [1942] VLR 85 .............................................................................................................................. 7.160 R v Reeves (1892) 13 LR (NSW) 220 ............................................................................................................ 7.175 R v Reynhoudt (1962) 107 CLR 381 .................................................................................................. 3.295, 10.70 R v Richman [1982] Crim LR 507 ................................................................................................................. 6.130 R v Ridgeway (1998) 72 SASR 73 ............................................................................................................... 14.220 R v Robert Millar (Contractors) Ltd [1970] 2 QB 54 ........................................................................................ 3.40 R v Robinson [1915] 2 KB 342 ....................................................................................................................... 8.40 xxxv

Principles of Criminal Law

R v Roffel [1985] VR 511 ................................................................................................................... 3.50, 12.100 R v Rogerson (1992) 174 CLR 268 .......................................................... 8.85, 8.120, 8.130, 8.135, 8.145, 8.155 R v Rolph [1962] Qd R 262 ........................................................................................................ 5.85, 5.95, 5.115 R v Romano (1984) 36 SASR 283 ................................................................................................................... 5.25 R v Rook [1993] 2 All ER 955 .......................................................................................................................... 7.90 R v Rose [1962] 3 All ER 298 ........................................................................................................................ 7.160 R v Rosenberg (1906) 70 JP 264 ................................................................................................................... 9.255 R v Runjanjic and Kontinnen (1991) 56 SASR 114 ............................................................................... 6.85, 6.110 R v Russell [1933] VLR 59 ..................................................................... 3.85, 7.25, 7.45, 7.50, 7.65, 9.165, 9.190 R v Ryan [1821] NSWKR 2 ............................................................................................................................ 2.180 R v Ryan (1890) 11 LR(NSW) 171 ............................................................................................................... 10.120 R v Ryan and Walker [1966] VR 553 ............................................................................................................. 9.130 R v S [1991] Tas R 273 ................................................................................................................................. 11.75 R v Saddler [2008] NSWDC 38 ................................................................................................................... 11.245 R v Salisbury [1976] VR 452 .............................................................................................................. 10.50, 10.95 R v Salvo [1980] VR 401 .............................................................................................. 3.330, 12.50, 12.65, 12.70 R v Samuels [1985] 1 NZLR 350 ..................................................................................................................... 7.65 R v Sanders (1991) 57 SASR 102 .................................................................................................................. 3.330 R v Sang [1980] AC 402; [1979] 2 All ER 1222 ................................................................................ 2.125, 14.215 R v Saunders [1575] Fost 371 ...................................................................................................................... 3.180 R v Saunders [1985] Crim LR 230 ................................................................................................................. 10.80 R v Saunders (unreported, 1991) ............................................................................................................... 11.125 R v Saunders and Archer (1576) 2 Plowd 473; 75 ER 706 ............................................................................... 7.90 R v Savage and Parmenter [1992] 1 AC 699 .................................................................................... 10.55, 10.100 R v Sayers [1943] SASR 146 ......................................................................................................................... 8.120 R v Saylor [1963] QWN 14 ............................................................................................................................. 7.90 R v Scarrow (1968) 52 Cr App R 591 .......................................................................................................... 13.215 R v Scarth [1945] St R Qd 38 .............................................................................................................. 4.95, 9.160 R v Scofield (1784) Cald Mag Rep 397 ........................................................................................................... 8.15 R v Scott [1967] VR 276 .................................................................................................. 3.105, 4.85, 4.95, 4.170 R v Scriva (No 2) [1951] VLR 298 .......................................................................................................... 5.10, 5.30 R v Sebalj [2003] VSC 181 ............................................................................................................................. 4.25 R v Sebalj [2004] VSC 212 ............................................................................................................................. 4.25 R v Secretary (1996) 5 NTLR 96 ............................................................................................. 10.30, 10.40, 10.45 R v Secretary of State for the Home Department; Ex parte Venables; R v Secretary of State for the Home Department; Ex parte Thompson [1997] 3 WLR 23 ................................................................................... 3.15 R v Secretary of State of Home Office Department; Ex parte Brind [1991] 1 All ER 720 ................................. 2.150 R v See Lun (1932) 32 SR(NSW) 363 ................................................................................................. 7.100, 7.110 R v Sew Hoy [1994] 1 NZLR 257 .................................................................................................................. 8.215 R v Seymour [2004] QCA 19 ...................................................................................................................... 12.135 R v Shankar Ramalingam [2011] ACTSC 86 ....................................................................................... 10.20, 10.55 R v Sharkey (1949) 79 CLR 121 .................................................................................................................. 15.225 R v Sharp [1957] 1 QB 552 ........................................................................................................... 13.215, 13.230 R v Sharp [1987] QB 853 ............................................................................................................................. 6.105 R v Sheaf (1927) 134 LT 127 ...................................................................................................................... 12.175 R v Sheer Metalcraft Ltd [1954] 1 QB 586 .................................................................................................... 3.335 R v Shephard [1919] 2 KB 125 ..................................................................................................................... 8.220 R v Shepherd (1987) 86 Cr App R 47 ........................................................................................................... 6.105 R v Sheriff [1969] Crim LR 260 ..................................................................................................................... 10.50 R v Shields [1981] VR 717 .......................................................................................................................... 10.100 R v Shivpuri [1987] AC 1 .............................................................................................................................. 8.205 R v Shorrock [1993] 3 WLR 698 ........................................................................................................ 1.40, 13.135 R v Simcox [1964] Crim LR 402 ................................................................................................................... 5.115 R v Simonidis [1983] 2 Qd R 54 ................................................................................................................... 8.160 R v Simpson (1959) 76 WN (NSW) 589 ....................................................................................................... 9.140 R v Singh [1973] 1 All ER 122 ......................................................................................................................... 6.80 R v Singh (2003) 86 SASR 473 ..................................................................................................................... 4.135 R v Skewes (1981) 7 A Crim R 276 ............................................................................................................... 8.130 R v Sleep (1864) 9 Cox CC 559 ................................................................................................................... 9.255 R v Smith [1681] 2 Show KB 165 ................................................................................................................. 3.325 R v Smith [1949] St R Qd 126 ...................................................................................................................... 4.215 R v Smith [1959] 2 QB 35 ............................................................................................................................ 3.160 R v Smith [1961] AC 290 ............................................................................................................................... 6.80 R v Smith [1963] 1 WLR 1200 ...................................................................................................................... 7.120 R v Smith [1974] QB 354 ............................................................................................................................. 3.345 R v Smith [1979] 1 WLR 1445 ........................................................................................................................ 4.95 R v Smith (1982) A Crim R 437 .................................................................................................................. 12.275 xxxvi

Table of Cases

R v Smyth [1963] VR 737 ............................................................................................................................. 6.115 R v Soley (1707) 11 Mod Rep 115 .............................................................................................................. 13.230 R v Solomon [1959] Qd R 123 ........................................................................................ 7.30, 7.90, 7.120, 7.135 R v Solomon [1980] 1 NSWLR 321 ............................................................................................................... 4.180 R v Sood [2006] NSWSC 1141 ..................................................................................................................... 9.225 R v Spencer; Ex parte Attorney-General (Qld) [1991] QCA 80 ....................................................................... 11.75 R v Sperotto (1970) 71 SR (NSW) 334 ......................................................................................................... 7.120 R v Spratt [1991] 2 All ER 210; [1990] 1 WLR 1073 ........................................................................... 10.50, 10.55 R v Sproule (1975) 26 CCC (2d) 92 ............................................................................................................... 4.95 R v St George (1840) 9 Car & P 483 ............................................................................................................ 10.35 R v Stally [1959] 3 All ER 814 ......................................................................................................................... 7.30 R v Stanley (unreported, 7/4/1995, NSWCCA, No 60554 of 1994) ............................................................ 10.160 R v Steane [1947] KB 997 .............................................................................................................................. 6.80 R v Stein (2007) 18 VR 376 ........................................................................................................................ 10.165 R v Stephens (1839) 3 State Tr NS 1189 .................................................................................................... 13.200 R v Stevens (1991) 23 NSWLR 75 ................................................................................................................. 14.95 R v Stevens [2014] QCA 286 .............................................................................................. 12.80, 12.110, 12.205 R v Stevenson (1990) 58 CCC (3d) 464 ....................................................................................................... 4.150 R v Stingel (1990) 171 CLR 312 ..................................................................................................................... 6.85 R v Stokes (1990) 51 A Crim R 25 ................................................................................................................. 4.155 R v Stone [1981] VR 737 .............................................................................................................................. 7.170 R v Stone [1999] 2 SCR 290 ................................................................................................... 4.115, 4.120, 4.145 R v Stone and Dobinson [1977] 1 QB 354 ......................................................... 3.85, 3.225, 9.165, 9.170, 9.190 R v Stones (1955) 56 SR (NSW) 25; 72 WN (NSW) 465 .................................................................... 4.180, 4.200 R v Stringer (2000) 116 A Crim R 198; [2000] NSWCCA 293 ......................................................... 11.190, 11.220 R v Stripp (1978) 69 Cr App R 318 ................................................................................................................. 4.95 R v Sullivan [1984] 1 AC 156 ................................................................................................................. 4.30, 4.95 R v Summers (1972) 56 Cr App R 604 ........................................................................................................ 13.215 R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 .................................................................... 2.150, 14.230 R v Swain (1991) 63 CCC (3d) 481 ................................................................................................................ 4.70 R v Swindall and Osborne (1846) 2 Car & Kir 230 ....................................................................................... 7.110 R v Taaffe [1984] AC 539 ............................................................................................................................. 8.200 R v Taikato (1996) 186 CLR 454 ................................................................................................................... 1.185 R v Tait [1973] VR 151 ............................................................................................................. 3.105, 4.85, 4.170 R v Taktak (1988) 14 NSWLR 226 ...................................................................................................... 9.165, 9.190 R v Tandy [1989] 1 WLR 350; (1988) 87 Cr App R 45; (1987) 31 A Crim R 453 ................................. 4.200, 5.105 R v Tang (2007) 16 VR 454 ........................................................................................................................ 15.120 R v Tang (2008) 237 CLR 1; [2008] HCA 39 .................................................................................... 15.95, 15.120 R v Taufahema (2007) 228 CLR 232 ......................................................................................... 7.05, 7.140, 7.150 R v Taylor [1911] 1 KB 674 ........................................................................................................................... 12.20 R v Telford (2004) 89 SASR 352 ..................................................................................................................... 4.65 R v Teremoana (1990) 54 SASR 30 ............................................................................................................. 10.180 R v Terry [1955] VLR 114 ............................................................................................................................ 10.135 R v Terry [1964] VR 248 ................................................................................................................................. 5.35 R v Tevendale [1955] VLR 95 ............................................................................................................. 7.160, 7.170 R v Thomas (1937) 59 CLR 279 ................................................................................................................... 3.285 R v Thomas [1993] 1 Qd R 323 .................................................................................................................. 13.235 R v Thompson [1961] 1 Qd R 503 ............................................................................................................... 4.180 R v Tolmie (1995) 37 NSWLR 660 .................................................................................... 11.145, 11.160, 11.255 R v Tolson (1889) 23 QBD 168 .................................................................................................................. 11.145 R v Tonkin [1975] Qd R 1 .................................................................................................................. 7.120, 7.135 R v Torpey (1871) 12 Cox CC 45 ................................................................................................................. 6.130 R v Tout (1987) 11 NSWLR 251 ................................................................................................................... 10.30 R v Tranby [1992] 1 Qd R 432 ..................................................................................................................... 10.80 R v Tranter [2013] SASCFC 61 .................................................................................................................... 14.110 R v Tsigos [1964–5] NSWR 1607 .................................................................................................................... 4.95 R v Tucker (1984) 36 SASR 135 ......................................................................................................... 4.170, 4.180 R v Turner (1846) 173 ER 704 ...................................................................................................................... 9.255 R v Turner (1910) 4 Cr App R 203 ................................................................................................................ 9.220 R v Turner [1962] VR 30 ............................................................................................................................. 10.120 R v Turner (No 2) [1971] 2 All ER 441 ........................................................................................................ 12.155 R v Ul-Haque (unreported, NSWSC, 18 February 2006) ............................................................................. 15.185 R v Upton [2005] ACTSC 52 ........................................................................................................................ 2.155 R v Valderrama-Vega [1985] Crim LR 220 ..................................................................................... 6.80, 6.85, 6.90 R v Van Beelen (1973) 4 SASR 353 .................................................................................................... 9.130, 10.80 R v Van Den Bend (1994) 170 CLR 137 ........................................................................................................ 9.140 R v Vasic (2005) 155 A Crim R 26; [2005] VSCA 38 ..................................................................................... 12.280 xxxvii

Principles of Criminal Law

R v Vassiliev [1968] 3 NSWLR 155 .................................................................................................................. 5.70 R v Veaty (1910) 74 JP Jo 352 ....................................................................................................................... 9.255 R v Venna [1976] QB 421; [1975] 3 All ER 788; 3 WLR 737 ....................................... 10.25, 10.50, 10.55, 10.100 R v Vickers [1957] 2 QB 664; [1957] 3 WLR 326; [1957] 2 All ER 741 ....................................... 3.105, 4.85, 4.170 R v Voukelatos [1990] VR 1 .................................................................................................................... 5.35, 5.55 R v Vreones [1891] 1 QB 360 ....................................................................................................................... 8.145 R v Wagner (1993) 66 A Crim R 583 ............................................................................................................. 15.60 R v Wald (1971) 3 DCR (NSW) 25 ..................................................................................................... 6.150, 9.225 R v Walsh (1824) 168 ER 1166 ..................................................................................................................... 12.20 R v Walsh [1984] VR 474 ................................................................................................................... 8.130, 8.140 R v Walsh (1991) 60 A Crim R 419 ........................................................................................................ 4.70, 6.45 R v Walsh (unreported, Kingston Crown Court, 8 August 2012) ................................................................... 11.20 R v Wampfler (1987) 11 NSWLR 541 ................................................................................................. 3.270, 3.275 R v Ward (1938) 38 SR (NSW) 308 ............................................................................................................... 12.25 R v Warner (1970) 55 Cr App R 93 ............................................................................................................. 12.205 R v Warner [1980] Qd R 207 ........................................................................................................................ 6.165 R v Waterage (1846) 1 Cox CC 338 ............................................................................................................. 9.255 R v Waterfield [1964] 1 QB 164 .................................................................................................................... 10.70 R v Watson [1987] 1 Qd R 440 ............................................................................................................ 5.65, 9.120 R v Watson [1989] 1 WLR 684 ...................................................................................................................... 9.150 R v Webb (1977) 16 SASR 309 ..................................................................................................................... 4.210 R v Webb; Ex parte Attorney-General [1990] 2 Qd R 275 ............................................................................... 7.80 R v Wei Tang [2006] VCC 637 .................................................................................................................... 15.120 R v Wei Tang (2007) 16 VR 454 .................................................................................................................. 15.120 R v Welch (1995) 101 CCC (3d) 216 ............................................................................................... 10.165, 11.50 R v Welsh (1869) 11 Cox 336 ......................................................................................................................... 5.10 R v West (1848) 2 Cox CC 500 .................................................................................................................... 3.190 R v Wewar (1842) .......................................................................................................................................... 2.50 R v White [1910] 2 KB 124 ............................................................................................................................. 8.40 R v White (1951) 51 SR (NSW) 188 .............................................................................................................. 9.175 R v White (1987) 31 A Crim R 194 ............................................................................................................... 6.165 R v White (2002) 135 A Crim R 346 ............................................................................................................. 12.65 R v Whitehouse (1941) 1 WWR 112 ............................................................................................................... 7.90 R v Whitehouse [1977] QB 868 .................................................................................................................... 8.180 R v Whitworth [1989] 1 Qd R 437 ................................................................................ 4.200, 5.85, 5.100, 5.105 R v Wholesale Travel Group Inc [1991] 3 SCR 154 ........................................................................................ 3.310 R v Williams [1923] 1 KB 340 ..................................................................................................................... 11.120 R v Williams (1932) 32 SR (NSW) 504 ......................................................................... 7.100, 7.110, 7.155, 7.160 R v Williams [1953] 1 QB 660 ...................................................................................................................... 12.35 R v Williams [1965] Qd R 86 ................................................................................................................. 8.35, 8.45 R v Williams (1990) 50 A Crim R 213 ............................................................................................................ 3.215 R v Williams (Gladstone) (1984) 78 Cr App R 276 .......................................................................................... 6.20 R v Williamson [1972] 2 NSWLR 281 ................................................................................. 6.70, 6.80, 6.90, 6.110 R v Willmot (No 2) [1985] 2 Qd R 413 ......................................................................................................... 9.115 R v Wills [1983] 2 VR 201 ....................................................................................................... 9.140, 9.155, 9.170 R v Wilson (1856) 169 ER 945 ...................................................................................................................... 9.220 R v Wilson [1996] 3 WLR 125; (1996) 2 Cr App R 241 ........................................................ 10.150, 10.165, 11.20 R v Wilson (unreported, 2013) ................................................................................................................... 11.125 R v Wong and Others (2005) 202 FLR 1 ......................................................................................................... 7.25 R v Wood and McMahon (1830) 1 Mood CC 278 ........................................................................................ 10.80 R v Woodrow (1846) 15 M & W 404 ........................................................................................................... 3.255 R v Woollin [1998] 4 All ER 103; 3 WLR 382 .................................................................................... 3.185, 15.195 R v Wyles; Ex parte Attorney-General (Qld) [1977] Qd R 169 ......................................................................... 7.80 R v Yilmaz [2003] ACTCA 20 ........................................................................................................................ 4.135 R v Young (1878) 12 Cox CC 114 ................................................................................................................ 11.60 R v Youssef (1990) 50 A Crim R 1 ...................................................................................................... 2.175, 2.185 R v Yusurf [2005] VSCA 69 .......................................................................................................................... 11.150 R v Zilm [2006] VSCA 72 ............................................................................................................................ 11.150 R v de Souza (unreported, 20/10/1995, NSWSC, Dunford J) ........................................................................ 5.105 R (a child) v Whitty (1993) 66 A Crim R 462 .................................................................................................. 3.25 R (on the application of Nicklinson and another) v Ministry of Justice and others [2014] UKSC 38 ................. 9.60 R (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45 .......................................... 9.60 R and Minister for Customs and Australasian Films Ltd (1921) 29 CLR 195 ..................................................... 3.45 RH v Director of Public Prosecutions (NSW) [2013] NSWSC 520 .................................................................... 3.25 RH v Director of Public Prosecutions (NSW) [2014] NSWCA 305 .................................................................... 3.25 RIL Aviation HL 7740 & HL 7741 Pty Ltd v Alliance & Leicester Plc [2011] NSWCA 423 ................................... 3.40 RLP (2009) VSCA 271 ................................................................................................................................. 11.195 xxxviii

Table of Cases

RP v Ellis [2011] NSWSC 442 .......................................................................................................................... 3.25 RPS v The Queen (2000) 199 CLR 620 ......................................................................................................... 2.190 Rabey v The Queen [1980] 2 SCR 513 ................................................................................................ 4.90, 4.125 Race Relations Board v Applin [1973] QB 815 .............................................................................................. 8.180 Radford v The Queen (No 2) (1986) 11 Crim LJ 231 ...................................................................................... 4.95 Rahman (1985) 81 Cr App R 349 ............................................................................................................... 10.185 Rance v Mid-Downs Health Authority [1991] 1 QB 587 ....................................................................... 9.30, 9.240 Rank Film Distributors Ltd v Video Information Centre [1981] 2 All ER 76 ................................................... 12.210 Rex v Donovan [1934] 2 KB 498 ................................................................................................................ 10.140 Rice v Connolly [1966] 2 QB 414 ............................................................................................................... 13.100 Ridgeway v R (1995) 184 CLR 19 ....................................................................................... 14.95, 14.215, 14.220 Roads and Traffic Authority (NSW) v Jara Transport Pty Ltd (2005) 44 MVR 394 ........................................... 3.270 Roads and Traffic Authority of New South Wales v O’Reilly (2009) 52 MVR 243 ................................ 3.280, 3.285 Roberts v Western Australia [2008] HCATrans 297 ........................................................................................ 9.140 Roberts v Western Australia (2007) 34 WAR 1 ............................................................................................... 9.140 Robinett v Police [2000] SASC 405 ............................................................................................................ 13.185 Roche v The Queen [1988] WAR 278 .................................................................................................... 5.30, 5.35 Rodriguez v Attorney-General (British Columbia) [1993] 3 SCR 519 ............................................................... 9.60 Roffel v R [1985] VR 511 ............................................................................................................................ 12.100 Rogers v Whitaker (1992) 175 CLR 479 ........................................................................................................ 6.180 Rogers and Murray (1989) 44 A Crim R 301 ................................................................................................. 2.220 Rogerson (1990) 51 A Crim R 359 ................................................................................................................ 8.155 Rolfe (1952) 36 Cr App R 4 .......................................................................................................................... 10.50 Rooke v Auckland City Council [1980] 1 NZLR 680 ...................................................................................... 4.195 Rose v The Queen [1961] AC 496 ................................................................................................................ 5.115 Rowe v Kemper [2008] QCA 175 ............................................................................................................... 13.100 Royall v The Queen (1991) 172 CLR 378 ..... 3.110, 3.120, 3.125, 3.130, 3.145, 3.210, 3.360, 9.40, 9.110, 9.120 Royley’s case (1612) Cro Jac 296 ................................................................................................................... 5.10 Rozsa v Samuels [1969] SASR 205 ..................................................................................................... 10.25, 10.45 Rubie v Faulkner [1940] 1 KB 571 .................................................................................................................. 7.50 Russell and Russell (1987) 85 Cr App R 388 .................................................................................................... 7.80 Ryan v The Queen (1967) 121 CLR 205 ............................ 2.175, 3.105, 3.360, 4.85, 4.100, 4.140, 4.170, 9.130

S S v de Blom (1977) (3) SA 513 ..................................................................................................................... 3.320 S v The Queen (1989) 168 CLR 266 ........................................................................................................... 11.195 SAJ v The Queen (2012) 269 FLR 390; 225 A Crim R 528; 36 VR 435; [2012] VSCA 243 .................... 12.50, 12.65 S&Y Investments (No 2) Pty Ltd v Commercial Union Assurance Co of Australia Ltd (1986) 85 FLR 285 ......... 3.50 SC Small v Noa Kurimalawai (unreported, 22/10/1997, Magistrates’ Court ACT, CC97/01904) ................... 4.165 SW v United Kingdom; CR v United Kingdom (1996) 21 EHRR 363 .............................................................. 11.65 Saad v The Queen (1987) 29 A Crim R 20 ....................................................................................... 3.200, 14.140 Saler v Klingbeil [1945] SASR 171 .................................................................................................................. 6.20 Salford Health Authority; Ex parte Jamaway [1988] 2 WLR 442 ...................................................................... 7.65 Saliman v State of Israel (Israel Supreme Court, 17 August 2008) ............................................................... 11.125 Satnam and Kewal (1983) 78 Cr App R 149 ............................................................................................... 11.160 Saunders v Herold (1991) 105 FLR 1 .......................................................................................................... 13.180 Saunders v The Queen [1980] WAR 183 ............................................................................................ 7.120, 7.135 Savage v DPP [1991] 3 WLR 914 ................................................................................................................ 10.100 Saw [2004] VSC 117 .................................................................................................................................. 11.195 Schiavo Ex Rel v Schiavo 544 US 945 (2005) .................................................................................................. 9.95 Schloendorff v Society of New York Hospital 105 NE 92 (SCNY 1914) ............................................................ 9.60 Schloss v Maguire (1897) 8 QLJ 21 ............................................................................................................ 10.140 Schmid v Keith Quinn Motor Co Pty Ltd (1987) 47 SASR 96 ........................................................................ 3.275 Scott v Commissioner of Police for the Metropolis [1975] AC 819 ................................................................ 12.50 Scott v Killian (1985) 40 SASR 37; (1984) 36 SASR 438 .................................................................................. 7.65 Scott v Metropolitan Commissioner of Police [1975] AC 819 ................................................. 8.130, 8.140, 8.160 Secretary of State for the Home Department v Robb [1995] 1 Fam LR 127 .................................................. 9.190 Seers (1984) 79 Cr App R 261 ........................................................................................................................ 5.85 Sellen (1991) 57 A Crim R 313 ................................................................................................................... 11.195 Shadrokh-Cigari [1988] Crim LR 465 ......................................................................................................... 12.160 Sharp v McCormick [1986] VR 869 ............................................................................................................ 12.225 Shaw v DPP [1962] AC 220 .................................................................................................... 1.210, 8.130, 8.135 Sherman v United States 356 US 369 (1958) ............................................................................................. 14.215 Sherras v De Rutzen [1895] 1 QB 918 ............................................................................................... 3.240, 3.255 Sibanda v The Queen [2011] VSCA 285 ..................................................................................................... 11.155 xxxix

Principles of Criminal Law

Simpson (1915) 11 Cr App R 218 .................................................................................................................. 5.35 Sims v Drewson [2008] ACTSC 91 .............................................................................................................. 11.160 Singh (unreported, 18/12/1990, VCA, No 226 of 1990) .............................................................................. 11.50 Sio v The Queen (2016) 334 ALR 57 ............................................................................................................ 7.120 Slaveski v Victoria [2010] VSC 441 .................................................................................................... 10.30, 10.40 Smith v Byrne (1894) QCR 252 .................................................................................................................. 10.135 Smith v Chief Superintendent Woking Police Station (1983) 76 Cr App R 234 .............................................. 10.40 Smith v Le Mura [1983] Qd R 535 ............................................................................................................... 3.235 Smith v The Queen (unreported, 6/3/1979, Tas CCA, Cosgrove, Crawford and Nettleford JJ) ........................ 6.70 Smith v Trocadero Dansant Ltd [1927] St R Qd 39 ......................................................................................... 3.40 Smith (1987) 44 SASR 587 ......................................................................................................................... 11.195 Smith, Maltimore v R [2016] NSWCCA 93 ................................................................................................. 14.140 Snell v Pryce (1990) FLR 213 ...................................................................................................................... 12.145 Snow v The Queen [1962] Tas SR 271 .................................................................................... 4.170, 4.180, 4.215 Sodeman v The King (1936) 55 CLR 192 .............................................................................................. 4.65, 4.70 Soering v United Kingdom (1989) 11 EHRR 439 ........................................................................................ 15.130 Sorrells v United States 287 US 435 (1932) ................................................................................................ 14.215 South Australia v Totani [2010] HCA 39 ...................................................................................................... 15.275 Sreckovic v The Queen [1973] WAR 85 .......................................................................................................... 5.70 Stapleton v The Queen (1952) 86 CLR 358 ........................................................................................... 3.25, 4.60 State v Barry (1912) 45 Mont 598 ............................................................................................................... 10.35 State Rail Authority (NSW) v Hunter Water Board (1992) 65 A Crim R 101; 28 NSWLR 721 ............... 3.280, 3.285 State of Israel v Kashur (July 19, 2010—Jerusalem District Court) CrimC (Jer) 561/08 ................................. 11.125 State of NSW v Tyszyk [2008] NSWCA 107 .................................................................................................. 13.60 Steel v United Kingdom (1999) 28 EHRR 603 ....................................................................... 13.25, 13.90, 13.125 Stein v Henshall [1976] VR 612 .................................................................................................................... 12.90 Stephens v Robert Reid & Co Ltd (1902) 28 VLR 82 ....................................................................................... 3.50 Stephenson v State 179 NE 633 (1933) ....................................................................................................... 3.155 Stewart v The Queen (1983) 149 DLR (3d) 583 ......................................................................................... 12.145 Stewart v The Queen (1988) 41 CCC (3d) 481 ............................................................................. 12.210, 15.250 Stewart and Schofield [1995] 1 Cr App R 441 .............................................................................................. 7.110 Stingel v The Queen (1990) 171 CLR 312 .............................. 2.25, 3.25, 5.10, 5.30, 5.40, 5.45, 5.50, 5.60, 5.70 Stokes and Difford (1990) 51 A Crim R 25 ................................................. 4.180, 4.220, 7.45, 7.75, 7.150, 10.55 Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 .............................................................. 3.275, 3.285 Stuart v The Queen (1974) 134 CLR 426 .......................................................................................... 7.120, 7.135 Subramaniam v Public Prosecutor [1956] 1 WLR 965 ..................................................................................... 6.80 Sullivan (1981) 6 A Crim R 259 .................................................................................................................... 4.155 Summers (1986) 22 A Crim R 47 .................................................................................................................. 4.180 Sweetman v Industries and Commerce Department [1970] NZLR 139 ......................................................... 7.110

T T v DPP; L v DPP; H v DPP [1977] Crim LR 127 .............................................................................................. 3.25 T v United Kingdom; V v United Kingdom (1999) IX ECHR 112 ..................................................................... 3.15 T (Adult: Refusal of Treatment), Re [1992] 4 All ER 649; 3 WLR 782 ................................................... 9.45, 10.155 T (Adult: Refusal of Treatment), Re [1993] Fam 95 ..................................................................................... 10.155 TTS Pty Ltd v Griffiths (1991) 105 FLR 255 ................................................................................................... 3.240 Taaffe (1983) 77 Crim App R 82 ................................................................................................................... 8.200 Tabe v The Queen (2005) CLR 418 ................................................................................................................ 7.75 Taktak (1988) 34 A Crim R 334 ......................................................................................................... 3.85, 14.145 Talbot v Norman (2012) 275 FLR 484 ............................................................................................................ 9.30 Tangye (1997) 92 A Crim R 545 ................................................................................................................... 7.150 Taxation, Commissioner of v La Rosa [2004] HCATrans 420; (2003) 198 ALR 521 ...................................... 14.185 Taylor v DPP [1973] AC 964 ....................................................................................................................... 13.215 Taylor v The King [1948] 1 DLR 545 ............................................................................................................. 4.210 Teixeira de Castro v Portugal (EHRR, 9 June 1998, Reports of Judgments and Decisions 1998-IV) .... 2.130, 14.225 Temoannui v Ford [2009] ACTSC 69 ............................................................................................... 13.85, 13.105 Terry Ernest Curnow v Leonard David Pryce [1999] NTSC 116 ..................................................................... 2.230 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 .............................................................................. 3.50, 3.310 Thabo Meli v The Queen [1954] 1 WLR 228 ..................................................................................... 3.360, 3.365 Thambiah v The Queen [1966] AC 37 ............................................................................................................ 7.25 Thomas v McEather [1920] St R Qd 166; (1920) 14 QJPR 160 .......................................................... 3.235, 3.240 Thomas v Mowbray (2007) 233 CLR 307 ........................................................................................ 15.20, 15.150 Thomas v The Queen (1937) 59 CLR 279 .................................................................................................... 3.285 Thomas v The Queen (1960) 102 CLR 584 ....................................................................................... 2.175, 2.180 Thomas (1985) 81 Cr App R 331 ................................................................................................................. 10.50 xl

Table of Cases

Thompson v The Queen (1989) 169 CLR 1 .................................................................................. 2.45, 2.50, 2.70 Thornton v Mitchell [1940] 1 All ER 339 ............................................................................................ 7.100, 7.110 Tietie (1988) 34 A Crim R 438 ........................................................................................................................ 7.90 Tofilau v The Queen (2007) 231 CLR 396 .................................................................................................. 14.235 Toonen v Australia (1994) 1 PLPR 50 ................................................................................................. 2.150, 2.245 Totani v South Australia [2009] SASC 301 .................................................................................................. 15.275 Tracey, Re; Ex parte Ryan [1989] HCA 12 ..................................................................................................... 15.25 Trade, Board of v Owen [1957] AC 602 ................................................................................................ 2.70, 8.90 Trade Practices Commission v Tubemakers of Australia Ltd (1983) 76 FLR 455; 47 ALR 719 ........ 3.40, 3.45, 3.50, 8.75 Treacy v DPP [1971] AC 537 .......................................................................................................................... 2.45 Tsang Ping-Nam v The Queen [1981] 1 WLR 1462 ...................................................................................... 2.175 Tsiaras [1996] 1 VR 398 .............................................................................................................................. 11.195 Tuck v Robson [1970] All ER 1171 .................................................................................................................. 7.50 Tumanako (1992) 64 A Crim R 149 ..................................................................................................... 5.85, 5.100 Turnbull (1977) 65 Cr App R 242 ........................................................................................................ 5.85, 5.165 Turner, Re (1984) 13 CCC (3d) 430 ........................................................................................................... 15.250 Tyler and Price (1838) 1 Mood CC 428 ........................................................................................................ 7.105

U Uday v State of Markataka (2003) AIR SC 1639 .......................................................................................... 11.125 Union Steamship of Australia Pty Ltd v King (1988) 166 CLR 1 ....................................................................... 2.70 United States v Behrman 258 US 280 (1922) ............................................................................................... 14.80 United States v Jimenez Recio 537 US 270 (2003) ........................................................................................ 8.125 United States v Russell 411 US 423 (1973) ................................................................................................. 14.215 Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531 ............................................................... 3.50, 3.275 Usmanov v R [2012] NSWDC 290 ................................................................................................... 11.10, 11.205

V Vaillancourt v The Queen [1987] 2 SCR 636 ................................................................................................. 9.130 Vallance v The Queen (1961) 108 CLR 56 ............................................... 2.25, 3.235, 3.240, 9.120, 10.55, 10.80 Valler (1844) 1 Cox 84 ................................................................................................................................. 7.105 Van Den Hoek v The Queen (1986) 161 CLR 158 .................................................................................. 5.10, 5.40 Van Leeuwen v The Queen (1981) 36 ALR 591 .................................................................................. 2.175, 2.180 Van Mechlen v The Netherlands [1997] HRCD 431 (23 April 1997) ................................................... 2.130, 2.135 Van den Hoek v The Queen (1986) 161 CLR 158 ........................................................................................... 5.70 Varley v The Queen [1976] 12 ALR 347 ........................................................................................................ 7.125 Veen v The Queen (No 1) (1979) 143 CLR 458 ............................................................................................ 5.165 Veen v The Queen (No 2) (1988) 164 CLR 465 ..................................................................................... 1.85, 4.80 Victoria Park Racing v Taylor (1937) 58 CLR 479 .......................................................................................... 2.240 Vidal-Hall & Ors v Google Inc [2014] EWHC 13 ........................................................................................... 2.240 Viro v The Queen (1978) 141 CLR 88 ................................................. 2.175, 4.155, 4.180, 6.15, 6.30, 6.50, 6.55 Von Lieven v Stewart (1990) 21 NSWLR 52 ................................................................. 3.250, 3.275, 3.280, 3.285

W Wai Yu-Tsang v The Queen [1992] 1 AC 269 ..................................................................................... 8.130, 8.140 Wainohu v New South Wales [2011] HCA 24 .............................................................................................. 15.275 Wake v Northern Territory (1996) 124 FLR 298 .............................................................................................. 9.50 Wakefield, Re (1958) 75 WN (NSW) 66 .......................................................................................................... 4.95 Wakeman v Farrar [1974]136 ..................................................................................................................... 12.175 Walden v Hensler (1987) 163 CLR 561 ......................................................................................................... 3.330 Walden (1986) 19 A Crim R 444 ..................................................................................................................... 6.30 Walker v Bradley (unreported, 15/12/1993, NSWDC, Kirkham J, 1919 of 1989) ......................................... 10.155 Walker v New South Wales (1994) 182 CLR 45 ............................................................................................ 2.210 Wallis v Lane [1964] VR 293 ......................................................................................................................... 12.20 Walplan Pty Ltd v Wallace (1985) 8 FCR 27 .................................................................................................... 3.45 Walsh v Sainsbury (1925) 36 CLR 464 ............................................................................................... 7.100, 7.110 Ward v The Queen (1980) 142 CLR 308 ........................................................................................................ 2.60 Wardrope (1987) 29 A Crim R 198 ................................................................................................................. 5.70 Warren v The Queen [1987] WAR 314 ............................................................................................... 7.120, 7.135 Watherston v Woolven (1988) 139 LSJS 366 .............................................................................................. 10.160 xli

Principles of Criminal Law

Watmore v Jenkins [1962] 2 QB 572 .............................................................................................................. 4.95 Watson v The Queen [2015] EWCA Crim 559 ............................................................................................... 11.85 Wayne v Boldiston (1992) 85 NTR 8 ............................................................................................................ 10.80 Webb v United States 249 US 96 (1919) ...................................................................................................... 14.80 Weight v Long [1986] Crim LR 746 .............................................................................................................. 10.70 Welch v United Kingdom (1995) 20 EHRR 247 ........................................................................................... 14.200 Welham v DPP [1961] AC 103 ...................................................................................................................... 8.160 Welham (1845) 1 Cox 192 ........................................................................................................................... 7.105 Wellard (1978) 67 Cr App R 364 ................................................................................................................ 10.185 Wesley-Smith v Balzary (1977) 14 ALR 681 ................................................................................................... 8.190 Westaway (1991) 523 A Crim R 336 ........................................................................................................... 10.100 Wheeler (1990) 92 Cr App R 279 ............................................................................................................... 12.110 Whelan v The Queen (2012) 228 A Crim R 1 .................................................................................................. 9.30 White v Director of Military Prosecutions (2007) 231 CLR 570 ..................................................................... 10.15 White v Ridley (1978) 140 CLR 342 ....................................................................................... 7.90, 7.105, 14.110 White (1987) 31 A Crim R 194 ..................................................................................................................... 6.175 Whitefield (1983) 79 Cr App R 36 .................................................................................................................. 7.90 Whitney v California 274 US 357 (1927) ...................................................................................................... 13.70 Whybrow (1951) 35 Cr App R 141 ............................................................................................................... 10.65 Whyte v The Queen [1988] 2 SCR 3 .......................................................................................................... 14.125 Widgee Shire Council v Bonney (1907) 4 CLR 977 ......................................................................................... 3.05 Wilcox v Jeffery [1951] 1 All ER 464 ..................................................................................... 3.85, 7.25, 7.30, 7.45 Willgoss v The Queen (1960) 105 CLR 295 .................................................................................. 4.45, 4.50, 4.55 Williams v Spautz (1992) 174 CLR 509 ........................................................................................................ 2.145 Williams v The Queen [1978] Tas SR 98 ......................................................................................................... 4.95 Williams v The Queen (1986) 161 CLR 278 ............................................................... 2.115, 10.65, 13.65, 13.125 Williams (1990) 50 A Crim R 213 .................................................................................................... 10.55, 10.100 Wilson v Ferguson [2015] WAS 15 .............................................................................................................. 11.205 Wilson v Kuhl; Ryan v Kuhl [1979] VR 315 .................................................................................................... 10.35 Wilson v Pringle [1986] 2 All ER 440 ............................................................................................................. 10.40 Wilson v The Queen (1992) 174 CLR 313 ...................................................... 9.135, 9.140, 9.155, 9.175, 10.100 Wilson v The Queen (2011) 33 VR 340 ....................................................................................................... 11.155 Wilson v Woodrow (1987) 26 A Crim R 387 ................................................................................................. 12.90 Wilton (1993) 64 A Crim R 359 ...................................................................................................................... 7.90 Wise v Dunning [1902] 1 KB 167 ............................................................................................................... 13.200 Wiseman, Re (1972) 46 ALJ 412 ..................................................................................................................... 4.95 Wogandt (1988) 33 A Crim R 31 ......................................................................................................... 4.95, 4.140 Wooley v Fitzgerald [1969] Tas SR 65 ......................................................................................................... 10.140 Woolmington v DPP [1935] AC 462 .................................. 2.160, 2.175, 2.180, 3.105, 4.70, 4.85, 4.170, 14.120 Woolworths Ltd v Luff (1988) 33 A Crim R 144 .............................................................................................. 3.50 Worsnop v The Queen (2010) 28 VR 187 ................................................................................................... 11.155 Wray v The King (1930) 33 WALR 67 ............................................................................................................. 4.65 Wright v McQualter (1970) 17 FLR 305 ..................................................................................................... 13.125

X X v The Sydney Children’s Hospitals Network [2013] NSWCA 320 ............................................................... 6.180 X v X [1958] Crim LR 805 .............................................................................................................................. 3.25 X (unreported, 15/8/2002, NSWDC) ......................................................................................................... 11.165 X7 v Australian Crime Commission (2013) 248 CLR 92 ........................................................ 2.130, 2.160, 14.125

Y Yedla Srinivasa Rao v State of A.P (2006) 11 SCC 615 ................................................................................. 11.125 Yip Chiu-Cheung v The Queen [1995] 1 AC 111 .......................................................................................... 8.125 York [2005] HCA 60; (2005) 225 CLR 466 .................................................................................................. 11.195 Youssef (1990) 50 A Crim R 1 ..................................................................................................... 4.30, 4.95, 4.140

Z Zaburoni v The Queen (2016) 256 CLR 482 ............................................................................................... 11.120 Zaharias (2001) 122 A Crim R 586 ............................................................................................................... 6.115 Zakaria (1992) 62 A Crim R 259 ................................................................................................................... 3.200 Zanker v Vartzokas (1988) 34 A Crim R 11 .................................................................................................... 10.40 xlii

Table of Cases

Zarb v Kennedy (1968) 121 CLR 283 ............................................................................................................. 2.90 Zecevic v DPP (1987) 162 CLR 645 ................................................................................................. 4.210, 10.125 Zecevic v DPP (Vic) (1987) 162 CLR 645 ................................ 6.05, 6.15, 6.25, 6.30, 6.35, 6.40, 6.45, 6.50, 6.55 Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 .................................... 4.95 Zijlstra v Northern Territory of Australia [2011] NTSC 46 ............................................................................ 10.140 Zikovic (1985) 17 A Crim R 396 .......................................................................................................... 6.30, 9.155 Zirilli v The Queen [2014] HCA 2 ................................................................................................................. 2.120

xliii

TABLE OF STATUTES Classification (Publications, Films And Computer Games) (Enforcement) Act 1995 s 3: 11.235 s 56: 11.235

COMMONWEALTH Acts Interpretation Act 1901 s 2C: 3.35 s 15AB(2): 2.150

Classification (Publications, Films and Computer Games) Amendment Act 2004: 11.235

Anti-Money Laundering and Counter-Terrorism Financing Act 2006: 14.180, 14.185 s 5: 14.185 s 6: 14.185 s 40: 14.185 s 47: 14.185 s 51B: 14.185 s 81: 14.185 Pt 2: 14.185

Classification (Publications, Films and Computer Games) (Enforcement) Amendment Act 2005: 15.235 Competition and Consumer Act 2010: 3.65 ss 44ZZRF to 4ZZRK: 3.65 Constitution s 51: 15.225 s 51(i): 2.75, 14.95 s 51(v): 11.205, 15.250 s 51(vi): 15.20, 15.30 s 51(xxiv): 15.30 s 51(xxix): 2.75, 11.245, 14.95, 15.15 s 51(xxxvii): 15.175 s 80: 2.90, 2.130, 2.190 s 109: 11.65

Anti-Terrorism Act 2004: 15.150 Anti-Terrorism Act (No 2) 2004: 15.200 Anti-Terrorism Act 2005: 8.30 Anti-Terrorism Act (No 2) 2005: 8.30, 15.150 Sch 7, item 12: 15.20 Australian Citizenship Amendment (Allegiance to Australia) Act 2015: 15.20

Copyright Act 1968 s 132AD: 12.210 ss 132AD to AJ: 12.210 s 132AL: 12.210 Div 5: 12.210

Australian Crime Commission Act 2002 s 4A(2): 15.280 Australian Crime Commission Amendment (National Policing Information) Act 2016: 15.10

Corporations Act 2001: 2.75, 12.65 s 184(2): 12.65 s 184(2)(a): 12.65

Australian Federal Police Act 1979: 15.150 s 8: 13.15 s 64: 13.85

Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014: 15.150, 15.230

Australian Security Intelligence Organisation Act 1979: 15.130, 15.150 s 34G: 15.165

Crimes Act 1914: 7.20, 12.15, 14.220, 15.150, 15.225 s 3ZC: 10.120 ss 4G to 4H: 2.100 s 4AA: 14.105, 14.180 s 6: 7.20, 7.155, 7.170, 7.175 s 7(3)(a): 8.205 s 15I: 14.220 s 15J: 14.220 s 15R: 14.220 s 15T: 14.220 s 15GA: 14.220 s 15GI: 14.220 s 15HA: 14.220 s 15HB: 14.220 s 15UC(1): 14.220 s 16A: 2.220 s 16A(2A): 2.220 s 16A(2A)(b): 2.220 s 16A(1): 1.55 s 16A(2)(m): 11.195 s 19B: 13.20 s 20BJ: 4.80 s 24A: 15.225 s 24A(1)(g): 15.225

Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003: 15.140 Aviation Crimes and Policing Legislation Amendment Act 2010: 15.130 Broadcasting Services Amendment (Online Services) Act 1999: 11.235, 11.245 Sch 1: 11.235 Cheques Act 1986: 12.135 Civil Aviation Act 1988 s 24: 10.70 Classification (Publications, Films and Computer Games) Act 1995: 11.235, 11.240, 11.245 s 3: 11.235 s 7: 11.235 s 11: 11.235 s 48(2): 11.235 Sch 1: 11.245 xlv

Principles of Criminal Law

s 4: 9.35 s 4.1(1): 14.140 s 4.1(2): 7.50 s 4.2(3): 4.90 s 5.2: 9.115, 15.70 s 5.2(1): 7.105, 15.190 ss 5.2(2) to (3): 8.75 s 5.2(3): 7.65 s 5.3: 8.75, 15.190 s 5.4: 10.190, 12.275, 14.140 s 5.4(1): 3.210, 9.110 s 5.4(2): 7.120, 9.110 s 5.4(3): 3.210 s 5.4(4): 3.210, 3.245 s 5.5: 3.60, 3.225, 7.105 s 5.6: 3.245, 14.140, 15.175, 15.190 s 5.6(1): 14.140, 15.190 s 5.6(2): 15.70, 15.90, 15.260 s 5.6(4): 15.175 s 6.1: 14.140, 15.70, 15.185 ss 6.1 to 6.2: 3.245 s 6.2: 14.140 s 7.1: 3.15 s 7.2: 3.25 s 7.3(1): 4.20 s 7.3(1)(a): 4.20 s 7.3(1)(b): 4.20, 4.60 s 7.3(1)(c): 4.20, 4.65 s 7.3(3): 3.10, 4.70, 4.140 s 7.3(4): 4.70 s 7.3(8): 4.20, 4.40, 4.45 s 7.3(9): 4.35 s 8.2(1): 4.160 s 8.3(1): 4.195 s 8.3(2): 4.195 s 9.1: 3.225, 6.170 s 9.2: 3.275, 3.290, 6.170, 14.140, 15.185 s 9.4: 3.355 s 9.4(2)(c): 3.340 s 9.5: 3.330 s 10.2: 6.70, 6.80, 6.100 s 10.2(2): 6.85, 6.90, 6.95, 6.115 s 10.2(2)(b): 6.110 s 10.2(3): 6.70, 6.105 s 10.3: 6.140, 6.150, 6.175 s 10.3(1): 6.155 s 10.3(2): 6.160 s 10.4: 4.210, 6.15 s 10.4(2): 6.15, 6.45, 6.50 s 10.4(2)(a): 6.20 s 10.4(3): 6.15, 6.25 ss 10.4(3)(a) to (c): 6.05 s 10.4(4): 6.35 s 11.1: 8.30, 15.185 s 11.1(2): 8.35, 8.55, 15.185 s 11.1(3): 8.75 s 11.1(4)(a): 8.200, 8.205 s 11.1(5): 8.190 s 11.1(6A): 8.75 s 11.1(7): 8.170 s 11.2: 7.10, 7.65, 7.120 s 11.2(1): 7.20 s 11.2(2)(a): 7.30 s 11.2(3)(a): 7.65, 7.75 s 11.2(3)(b): 7.65, 7.120, 7.135 s 11.2(4): 7.90 s 11.2(5): 7.10, 7.185

Crimes Act 1914 — cont s 28: 13.145 s 29: 12.15 s 29D: 12.260 s 30K: 7.30 s 42: 8.145 s 52: 15.15 s 76C: 15.250 s 85S: 15.155 s 85X: 15.155 s 85Y: 15.155 s 86(1)(e): 2.25 s 86A: 2.25 Pt 1D: 2.245 Pt IB: 1.60 Crimes Amendment (Controlled Operations) Act 1996: 14.220 Crimes (Aviation) Act 1991: 15.130 s 21: 10.70 Crimes (Foreign Incursions and Recruitment) Act 1978: 15.230 Crimes (Internationally Protected Persons) Act 1976 s 8(1): 10.185 s 8(2): 10.180 s 8(7)(c): 10.180 Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act 2016: 14.200 Crimes Legislation Amendment (Serious and Organised Crime) Act 2010: 15.10, 15.280 Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Act 2013: 11.190, 15.95, 15.115 Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010: 15.85 Crimes (Torture) Act 1988: 15.85 Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990: 14.90, 14.150 s 5(1): 14.150 s 6: 14.150 s 9: 14.150 s 9(1)(b): 14.150 s 10: 14.150 s 11: 14.150 s 12: 14.205 s 13: 14.205 s 14: 14.205 Criminal Code: 2.25, 2.70, 2.160, 3.60, 3.210, 3.235, 3.275, 4.20, 4.165, 4.195, 4.215, 6.15, 6.85, 6.120, 6.175, 6.195, 7.10, 7.20, 7.65, 7.75, 7.90, 7.120, 7.140, 8.30, 8.85, 8.165, 8.175, 11.145, 11.190, 11.195, 11.205, 12.05, 12.15, 12.45, 12.65, 12.210, 12.300, 12.305, 13.80, 14.105, 14.110, 14.125, 14.140, 14.150, 14.155, 14.180, 14.185, 15.10, 15.15, 15.20, 15.30, 15.35, 15.50, 15.65, 15.70, 15.75, 15.80, 15.85, 15.95, 15.100, 15.110, 15.115, 15.120, 15.150, 15.185, 15.205, 15.210, 15.215, 15.225, 15.230, 15.255, 15.260, 15.280, 15.285 s 3: 15.175 xlvi

Table of Statutes

s 91.1(4): 15.150 s 91.2(1): 15.150 s 91.2(2): 15.150 s 100.1: 15.180, 15.185, 15.190 s 100.1(1): 15.180 s 100.1(1)(b): 15.190 s 100.1(1)(c): 15.190 s 100.1(3): 15.185 s 100.1(c): 15.185 s 101.1: 15.175 s 101.1(1): 15.185 s 101.1(2): 15.185 s 101.2: 8.30, 15.175, 15.185 s 101.3: 15.190 s 101.4: 8.30, 15.175, 15.185, 15.190 s 101.5: 8.30, 15.175, 15.185 s 101.6: 8.30, 8.90, 15.175, 15.185 s 101.6(1): 15.185 s 102.1: 15.200 s 102.1(1): 15.200 s 102.1(1A): 15.215 s 102.1(2): 15.200, 15.215 s 102.2: 15.200 ss 102.2 to 102.8: 15.200 s 102.3: 15.200 s 102.4: 15.200 s 102.5: 15.200 s 102.5(2): 15.185 s 102.5(3): 15.185 s 102.5(4): 15.185 s 102.6: 15.200 s 102.7: 15.200 s 102.8: 1.25, 15.200 s 102.8(4): 15.200 s 102.8(4)(a): 15.200 s 102.8(4)(b): 15.200 s 102.8(4)(c): 15.200 s 102.8(4)(d): 15.200 ss 104.4(1)(c)(ii) to (v): 15.150 s 106.3: 8.30 s 115.1: 15.130 s 115.1(1)(e): 15.130 s 115.1(1A): 15.130 s 115.1(1B): 15.130 s 115.1(e): 15.130 s 115.2: 15.130 s 115.2(1)(e): 15.130 s 115.3: 15.130 s 115.4: 15.130 s 115.9: 3.125 s 119.1(1): 15.230 s 119.1(2): 15.230 s 119.2: 15.230 s 119.4: 15.230 s 130.1: 12.15 s 130.2(1): 12.155 s 130.3: 12.15, 12.55, 12.65, 12.300 s 130.4: 12.45 s 131.1: 12.15 s 131.2: 12.15, 12.45 s 131.2(3): 12.45 s 131.3: 12.15 s 131.3(1): 12.85 s 131.3(2): 12.110 s 131.6(b): 12.175 s 131.7: 12.190 s 131.9: 12.155

Criminal Code — cont s 11.2(7): 7.80 s 11.2(b): 7.10 s 11.3: 7.105 s 11.4: 8.175 s 11.4(1): 8.180 s 11.4(2): 8.185 s 11.4(3): 8.200, 8.220 s 11.4(5): 8.175 s 11.5(1): 8.85, 8.90 s 11.5(2)(b): 8.150 s 11.5(2)(c): 8.85, 8.95, 8.100 s 11.5(3)(a): 8.200, 8.215 s 11.5(3)(b): 8.110 s 11.5(3)(d): 8.120 s 11.5(5): 8.100 s 11.5(6): 8.190 s 11.5(8): 8.85 s 12.1: 3.55 ss 12.1 to 12.6: 3.55 s 12.2: 3.55 s 12.3: 3.55 s 12.3(1): 3.55 s 12.3(2): 3.55 s 12.3(6): 3.55 s 12.4: 3.60 s 12.4(3): 3.60 s 13: 2.160 s 13.3: 15.185 s 13.5: 2.165 ss 15.1 to 15.4: 2.70, 15.35 s 15.3: 15.280 s 15.4: 15.30, 15.200 s 23A(2): 4.90 s 27: 4.90 s 70.2: 12.305 s 70.3: 12.305 s 70.4: 12.305 s 70.4(1): 12.305 s 70.4(1)(c): 12.305 s 70.4(3): 12.305 s 71.2: 8.75 s 71.2(1)(d): 8.75 s 71.23(2): 3.125 s 72.3(1): 15.175 s 72.3(2): 15.175 s 80.1: 15.150 s 80.1AA: 15.225 s 80.1AA(6): 15.225 s 80.2: 15.20, 15.225 s 80.2(1): 15.225 s 80.2(3): 15.225 s 80.2(5): 15.225 s 80.2A: 15.225 s 80.2A(1): 15.225 ss 80.2A to C: 15.225 s 80.2B: 15.225 s 80.2B(1): 15.225 s 80.2C: 15.185, 15.225, 15.230 s 80.2C(2)(b): 15.230 s 80.2C(3): 15.230 s 80.2C(4): 15.230 ss 80.3(1)(a) to (f): 15.225 s 80.6: 15.215 s 91.1(1): 15.150 s 91.1(2): 15.150 s 91.1(3): 15.150 xlvii

Principles of Criminal Law

s 271.7: 15.120 ss 271.7A to 271.7E: 15.115 s 271.8: 15.120 s 272.2: 3.125 s 272.2(1A): 15.115 s 272.2(1C): 15.115 s 272.2(2): 15.115 s 272.2(2B): 15.115 s 272.14(3): 8.205 s 272.15(3): 8.205 s 274.2: 15.85 s 300.1(1): 14.110 s 300.2: 14.110 s 301.4(b): 14.105 s 301.10: 14.105 s 301.11: 14.105 s 301.13: 14.110 s 301.13(1): 14.110 ss 301.13(2)(b)(i) to (iv): 14.110 s 302.1: 14.150 s 302.1(1)(e): 14.155 s 302.2: 14.150 s 302.3: 14.150 s 302.4: 14.150 s 302.5: 14.125 s 302.5(1): 14.155 s 304.4: 14.105 s 304.5: 14.105 s 304.6: 14.105 s 307.1: 14.105, 14.120, 14.140 s 307.1(2): 14.140 s 307.1(3): 14.140 s 307.2: 14.105 s 307.2(2): 14.140 s 307.2(3): 14.140 s 307.2(4): 14.120 s 307.3: 14.105 s 307.3(2): 14.140 s 307.3(3): 14.105, 14.120 s 307.4: 14.105, 14.120 s 307.4(2): 14.140 s 307.6(4): 14.120 s 307.9(4): 14.120 s 307.11: 14.105 s 307.11(2): 14.140 s 307.11(3): 14.140 s 307.12: 14.105 s 307.12(2): 14.140 s 307.12(3): 14.140 s 307.13: 14.105 s 307.13(2): 14.140 s 307.14: 14.140 s 308.1: 14.150 s 370.3: 12.135 s 372.1: 12.135 s 372.1A: 12.135 s 390: 15.280 s 390.1: 15.280 s 390.2(1): 15.280 s 390.2(2): 15.280 s 390.2(4): 15.280 s 390.3: 15.280 s 390.3(2): 15.280 s 390.3(6): 15.280 s 390.4: 15.280 ss 390.4 to 390.6: 15.280 s 390.5: 15.280

Criminal Code — cont s 131.10: 12.15 s 131.10(2): 12.205 s 131.10(3): 12.215 s 132: 12.245 s 132.1(9): 12.100 s 132.2: 12.235 s 132.3: 12.235 s 132.4: 12.240 s 132.5: 12.240 s 132.7: 12.240 s 133.1: 12.105, 12.275 s 134.1: 12.275 s 134.1(9): 12.135 s 134.1(10): 12.135 s 134.2: 12.10, 12.280 s 135.4: 8.85, 8.140 s 141.1: 12.300 s 141.1(1): 12.300 s 141.1(1)(b): 12.300 s 141.1(3): 12.300 s 141.1(3)(b)(i): 12.300 s 141.1(3)(b)(ii): 12.300 s 142.1(2): 12.300 s 142.2(1): 12.300 s 142.2(2): 12.300 s 146.2: 3.125 s 233B(1)(a): 14.120 ss 268.3 to 268.7: 15.110 s 268.4: 15.110 s 268.4(2): 15.110 s 268.5(2): 15.110 s 268.8(b): 15.90 ss 268.8 to 268.23: 15.80 s 268.10: 15.95 s 268.10(2): 15.95 s 268.13: 2.140 s 268.14: 15.110 s 268.14(1): 15.100 s 268.14(2): 15.100 s 268.14(3): 11.85, 15.100 s 268.24: 15.70 s 268.24(1)(b): 15.70 s 268.24(1)(c): 15.70 s 268.24(2): 15.70 ss 268.24 to 268.34: 15.70 s 268.25: 2.140, 15.70 ss 268.70 to 268.76: 15.75 s 268.73: 2.140 ss 268.77 to 268.94: 15.75 ss 268.95 to 268.101: 15.75 s 268.117(1): 15.50 s 270.1: 15.95 s 270.2: 15.95 s 270.3: 15.95, 15.120 s 270.3(1)(a): 15.120 s 270.3(1)(aa): 15.95 s 271.2: 15.115 s 271.2(1): 15.115 s 271.2(1A): 15.115 s 271.2(1B): 15.115 s 271.2(2A): 15.115 s 271.2(2C): 15.115 s 271.3: 15.120 s 271.4: 15.120 s 271.5: 15.115 s 271.6: 15.120 xlviii

Table of Statutes

Div 80: 15.215 Div 101: 15.175, 15.185 Div 102: 15.185, 15.200 Div 104: 15.150, 15.275 Div 105: 15.150 Div 115: 15.130 Div 268, subdiv D: 15.70 Div 270: 15.95, 15.115 Div 271: 15.115 Div 302: 14.150 Div 305: 14.150 Div 307: 14.110, 14.120, 14.140, 14.150 Div 307, subdiv B: 14.110 Div 307, subdiv C: 14.110 Div 400: 14.180 Div 477: 15.255, 15.265 Div 478: 15.255 Dictionary : 9.35 Sch 1: 2.25

Criminal Code — cont s 390.6: 15.280 s 390.7: 15.280 s 400.1: 14.180 s 400.2: 14.180 ss 400.3 to 400.8: 14.180 s 471.11: 15.155 s 471.11(4): 3.125 s 471.12: 15.155 s 471.13: 15.155 s 471.15: 15.155 s 473.4(b): 11.245, 15.225 s 474.15(4): 3.125 s 474.19: 11.245 s 474.21: 11.245 s 474.26(2): 15.260 ss 474.26(2)(c) to (d): 15.260 s 474.27(2): 15.260 ss 474.27(2)(c) to (d): 15.260 s 474.27A(1)(b): 15.260 s 474.28(9): 15.260 s 474.29: 15.260 s 474.29(6): 15.260 s 476.1: 15.240 s 476.2(3): 3.125 s 476.3: 15.265 s 477.1: 15.265 s 477.1(7): 8.205 s 477.2: 15.265 s 477.2(1)(d)(i): 15.265 s 477.2(1)(d)(v): 15.265 s 477.2(1)(d)(ii): 15.265 s 477.2(1)(d)(iv): 15.265 s 477.2(1)(d)(vi): 15.265 s 477.2(1)(d)(iii): 15.265 s 477.2(1)(d)(vii): 15.265 s 477.3: 15.265 s 478.1: 15.255, 15.265 s 478.1(d)(i): 15.265 s 478.1(d)(ii): 15.265 s 478.1(d)(iii): 15.265 s 478.2: 15.265 s 478.3: 15.265 s 478.3(2): 8.205 s 478.4: 15.265 s 478.4(2): 8.205 Ch 4: 15.175 Ch 5: 15.175, 15.225 Ch 10: 12.255 Pt 2: 15.70, 15.110 Pt 2.2: 3.05 Pt 2.5: 9.10 Pt 5-3: 15.210 Pt 5.1, Div 80: 15.225 Pt 5.3: 15.175, 15.180 Pt 5.4, Div 115: 15.130 Pt 7.2: 12.15 Pt 7.3: 12.260 Pt 7.6: 12.300 Pt 9.1: 14.90, 14.110 Pt 9.1, Div 307: 14.105, 14.110, 14.120 Pt 9.5: 12.135 Pt 10.5: 15.155 Pt 10.6: 15.260 Div 5: 7.105 Div 14, s 14.1: 15.35 Div 72: 15.175

Criminal Code Amendment (Anti-Hoax And Other Measures) Act 2002: 15.155 Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999: 12.305 Criminal Code Amendment Regulation 2013 (No 1): 14.105, 14.125 Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999: 15.95 Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000: 12.05, 12.15, 12.260, 15.30 Criminal Code Amendment (Trafficking in Persons Offences) Act 2005: 11.190, 15.115 Criminal Code Regulations 2002: 14.125, 14.150 Div 3.2: 14.120 Sch 4: 14.120 Customs Act 1901: 3.200, 8.205, 14.95, 14.110, 14.135, 14.140, 14.195 s 5.6: 14.140 s 50(1): 14.95 s 51(1): 14.95 s 229(1)(a): 14.195 s 229A: 14.195 s 233B: 8.205, 14.110 s 233B(1)(a): 14.120, 14.135 s 233B(1)(a)(iii): 14.110 s 233B(1)(b): 14.110, 14.140 s 233B(1)(c): 14.140 s 243A: 14.195 Pt XII: 14.55 Cybercrime Act 2001: 12.105, 12.315, 15.240, 15.245, 15.255, 15.265 s 51(v): 15.240 Defence Act 1903 s 51SE: 6.185 Pt IIIAAA: 6.185, 15.20 Defence Force Discipline Act 1982: 2.45, 2.210, 15.25 s 61(2): 15.25 s 190: 15.25 s 190(4): 15.25 xlix

Principles of Criminal Law

s 7(c): 14.200 s 13: 14.205 s 17: 15.210 s 20(1)(d): 15.210 s 20(2): 15.215 s 47: 15.210 s 54: 14.200 s 80: 14.200 s 92: 14.200 s 116: 15.210 s 152: 15.210 s 153(1): 14.200 s 153(2): 14.200 s 315(1): 14.200 s 315(2): 14.200 ss 319(6)(a) to (e): 14.200 Pt 2.1: 14.200 Pt 2.4: 14.200

Euthanasia Laws Act 1997: 9.50 Sch 1: 9.50 Evidence Act 1995: 14.230 s 80: 5.165 s 138: 14.220 s 138(3): 2.150 s 141: 2.160 Family Law Act 1975: 11.65, 13.45 s 4AB: 10.05 s 65Y: 10.185 s 65Z: 10.185 s 68B: 13.45 s 114(1): 13.45 Family Law (Child Abduction Convention) Regulations 1986: 10.185 Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011: 10.05

Public Order (Protection of Persons and Property) Act 1971: 13.145 s 25: 13.215

Financial Transaction Reports Act 1988: 14.180 Genocide Convention Act 1949: 15.105 s 4: 15.105 s 5: 15.105

Race Discrimination Act 1975: 2.220 Racial Discrimination Act 1975: 13.80 s 6A: 13.80 s 18C: 11.230, 13.80

Human Rights (Sexual Conduct) Act 1994: 2.210, 2.245, 11.190, 11.220 s 4: 10.165, 11.30, 11.190, 11.220

Security Legislation Amendment (Terrorism) Act 2002: 15.150

International Criminal Court (Consequential Amendments) Act 2002: 15.50

Suppression of the Financing of Terrorism Act 2002: 14.195, 14.200, 15.210

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Act 2011: 12.135

Telecommunications (Interception and Access) Act 1979: 14.50

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005: 14.110, 14.150

Therapeutic Goods Act 1989: 14.20

Measures to Combat Serious and Organised Crime Act 2001: 14.220

Trade Practices Act 1974: 3.65 ss 44ZZRF to 4ZZRK: 3.65 s 45: 3.65 s 84: 3.45 s 85: 3.310 s 155(5): 3.65

Model Criminal Code: 3.15, 3.25, 3.225, 3.235, 3.245, 8.100, 11.40, 11.85, 11.100, 11.145, 11.190, 12.05, 12.10, 12.15, 12.55, 12.85, 12.260, 13.215, 15.240 cl 3.1.1: 12.15 cl 5.2.6: 11.35 cll 5.2.29 to 5.2.31: 11.200 cl 5.2.34: 11.190 cl 5.2.36(c): 11.165 cl 13.6: 12.240 cl 16.3: 12.240 cl 16.3(2): 12.240 cl 16.4: 12.240 Ch 2: 3.55, 12.205 Ch 3: 12.05, 12.45 Ch 8: 15.15

Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009: 3.65 War Crimes Act 1945: 15.30, 15.55 War Crimes Amendment Act 1988: 15.60, 15.65

AUSTRALIAN CAPITAL TERRITORY Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 s 9(2)(c): 11.235 s 10: 11.235 s 22: 11.235 s 24: 11.245 s 32: 11.245 s 43: 11.245

National Service Act 1968: 2.90 Proceeds of Crime Act 1987: 14.195 Proceeds of Crime Act 2002: 12.10, 14.180, 14.185, 14.195, 14.200, 15.210 s 5: 14.200 s 5(c): 14.200 s 5(f): 14.195 s 7: 14.200

Confiscation of Criminal Assets Act 2003: 14.180, 14.195 Crime Prevention Powers Act 1998: 13.105 l

Table of Statutes

s 62(1): 11.190 s 62(2): 11.190 s 62(3): 11.190 s 63: 10.185 s 64: 11.210 s 67: 11.85 ss 67(1)(a) to (j): 11.110 s 67(1)(g): 11.115, 11.125 s 67(1)(h): 11.30 s 67(1)(i): 11.200 s 67(2): 11.50, 11.95 ss 83 to 114: 12.40 s 86(1): 12.270 s 178C: 12.280 ss 188 to 190: 13.35, 13.55, 13.85 s 221: 10.120 s 289: 6.120 s 300: 4.230 s 323: 4.80 s 324: 4.80 s 328: 4.80 s 329: 4.80 s 331: 4.80 s 334: 4.80 s 339: 4.165 s 391: 13.215 s 392: 11.210, 13.165 s 393: 11.210 s 397(1): 13.20, 13.55 s 397(2): 13.20, 13.55 Pt 4: 10.105

Crimes (Abolition of Offence of Abortion) Act 2002: 9.210 Crimes Act 1900: 2.25, 6.120, 9.20, 9.45, 9.120, 9.185, 10.75, 11.190, 12.65, 12.100 s 51 – 54: 11.55 s 4: 10.80 s 9: 2.100 s 10: 9.30 s 12(1): 9.20 s 12(1)(a): 9.20, 9.115 s 12(1)(b): 9.20, 9.120 s 12(1)(c): 9.20 s 13: 5.10 s 13(2): 4.210, 5.10, 5.40 s 13(2)(a): 5.20 s 13(2)(b): 5.45 s 13(3): 5.55, 5.155 s 13(4)(a): 5.60 s 13(5): 5.70 s 14: 5.80, 5.85 s 14(2): 5.120 s 15: 9.160 s 15(1): 9.135 s 16: 9.200 s 17: 9.45, 9.200 s 18: 9.200 s 19: 10.75, 10.80, 10.100 s 20: 10.75, 10.80, 10.100 s 21: 10.80 s 22: 10.65 s 23: 10.75 s 24: 10.75, 10.80 s 25: 10.75, 10.80, 10.100 s 26: 10.15 s 27(3)(b): 10.180 s 27(3)(e): 10.180 s 27(3)(f): 10.180 s 27(4)(b): 10.65 s 27(4)(c): 10.70 s 28(2)(b): 10.180 s 28(2)(c): 10.180 s 28(2)(d): 10.180 s 30: 10.170 s 31: 10.170 s 32(1)(b): 10.65 s 32(1)(c): 10.70 s 32(2)(b): 10.65 s 32(2)(c): 10.70 s 34: 10.185 s 35: 10.175 s 38: 10.185 s 39: 10.180 s 42: 9.30, 9.235, 9.240, 9.245 s 47: 9.255 s 47(1): 9.255 s 47(2): 9.255 s 48: 11.210 s 49: 10.15 s 50: 11.40, 11.45 s 54: 11.35, 11.125, 11.160 s 54(1): 11.145 s 54(2): 11.165 s 55(2): 11.190 s 56(2): 11.190 ss 57 to 61: 11.210 s 58: 4.180

Crimes (Amendment) Act (No 4) 1985: 12.05 Crimes (Controlled Operations) Act 2008: 14.220 Crimes (Forensic Procedures) Act 2000: 2.245 Crimes (Industrial Manslaughter) Act 2003: 9.10 Crimes (Murder) Act 2009: 9.120 s 12(1)(c): 9.120 Crimes (Restorative Justice) Act 2004: 1.95 s 6: 1.95 s 8: 1.95 s 16: 2.135 s 17(1): 1.95 s 18(2): 1.95 s 19: 1.95 s 44: 1.95 Pt 4: 1.95 Pt 5: 1.95 Crimes (Sentencing) Act 2005 s 33(1)(r): 11.195 Criminal Code: 2.25, 2.45, 4.20, 4.170, 4.195, 7.20, 8.85, 8.175, 12.15, 12.40, 12.65, 12.270, 14.150 s 3: 9.35 s 5: 2.25 s 13: 7.50 s 15: 3.105, 4.85 s 15(2): 4.90, 4.100, 4.170 s 15(5): 4.165, 4.170 s 18(2): 7.65, 9.115 ss 18(2) to (3): 8.75 s 19: 8.75 s 20: 12.275 li

Principles of Criminal Law

s 48(4): 8.85 s 48(5)(a): 8.200, 8.215 s 48(5)(b): 8.110 s 48(5)(d): 8.120 s 48(6): 8.100 s 48(9): 8.190 s 48(10): 8.85 ss 49 to 51: 3.55 s 52: 3.60 s 55: 3.60 ss 247A to 247I: 15.240 s 300: 12.45, 12.50 s 301(1): 12.150, 12.155 s 303: 12.15, 12.45 s 303(3): 12.45 ss 303 to 308: 12.40 s 304: 12.15 s 304(1): 12.85 s 304(2): 12.20, 12.85, 12.110 s 304(3): 12.110 s 305: 12.15 s 305(1): 12.155 s 305(2): 12.165 s 305(4): 12.165, 12.175 s 305(5): 12.190 s 306: 12.15, 12.215 s 306(2): 12.205 s 306(4): 12.205 s 307: 12.140 s 308: 12.15, 12.40, 12.270 s 309: 12.235 s 310: 12.235 s 311: 12.240 s 312: 12.240 s 313: 12.245 s 315: 12.240 s 318: 12.95 s 321: 12.75 s 322A: 12.195 s 325: 12.105, 12.275 s 326: 12.270, 12.275 s 330: 12.135 s 332: 12.10, 12.280 s 333: 12.40, 12.260 s 334: 8.140 s 336: 12.285 s 336(1): 12.285 s 363: 13.85 s 363B: 3.125 ss 370 to 372: 12.100 s 400: 3.125 s 412: 3.125 s 415: 15.265 s 415(3)(a): 8.205 s 416: 15.265 s 417: 15.265 s 418: 15.265 s 418(3): 8.205 s 419: 15.265 s 419(3): 8.205 s 420: 15.265 s 421: 15.265 s 422: 3.125 s 602(e): 14.155 s 603: 14.155 s 603(1): 14.150 s 603(3): 14.150

Criminal Code — cont s 20(1): 3.210, 7.120, 9.110 s 20(2): 3.210, 9.110 s 21: 3.225 s 21(a): 9.175 s 22: 3.245 s 25: 3.15 s 26: 3.25 s 27(1): 4.20, 4.40, 4.45 s 27(2): 4.35 s 27(3): 4.35 s 28: 4.20 s 28(1)(a): 4.20 s 28(1)(b): 4.20 s 28(1)(c): 4.20 s 28(2): 4.60 s 28(4): 3.10, 4.70 s 28(5): 4.70, 4.140 s 28(6): 4.70 s 29(1): 4.110 s 31: 4.165 s 31(1): 4.155, 4.180 s 32(1): 4.195 s 32(2): 4.195 s 33: 4.210 s 34: 4.170, 4.215 s 35: 6.170 s 36: 3.275, 3.285, 3.295, 6.170 s 38: 3.330 s 40: 6.70, 6.80, 6.100 s 40(2): 6.90, 6.95 s 40(2)(b): 6.85, 6.110 s 40(3): 6.70, 6.105 s 41: 6.140, 6.175 s 41(2): 6.160 s 42: 4.210, 6.15 s 42(2): 6.45 s 42(2)(a): 6.50 s 42(2)(a)(i): 6.20 s 42(3): 6.25 s 42(3)(b): 6.35 s 44: 8.30 s 44(2): 8.35, 8.55 s 44(3): 8.35 s 44(4)(a): 8.200, 8.205 s 44(5): 8.75 s 44(6): 8.75 s 44(8): 8.190 s 44(9): 8.30 s 44(10): 8.170 s 45: 7.10 s 45(1): 7.20, 7.30 s 45(2)(b): 7.65 s 45(2)(b)(i): 7.75 s 45(2)(b)(ii): 7.120, 7.135 s 45(5): 7.90 s 45(6): 7.10, 7.185 s 45(8): 7.80 s 46: 7.105 s 47: 8.175 s 47(1): 8.180 s 47(2): 8.185 s 47(4): 8.200, 8.220 s 47(6): 8.175 s 48(1): 8.85 s 48(2)(b): 8.150 s 48(2)(c): 8.85, 8.95, 8.100 lii

Table of Statutes

s 82: 14.160 s 85: 14.160 s 96(1): 14.160 Ch 6: 14.160

Criminal Code — cont s 603(7): 14.150 s 604: 14.155 s 700: 3.125 s 717: 7.20, 7.155, 7.170 s 717(1)(c)(i): 7.175 s 717(1)(c)(ii): 7.175 s 717(4): 7.175 Pt 2.2, Div 2.2.3: 7.105 Pt 2.7: 2.65, 15.35 Pt 6.3: 14.150 Dictionary: 9.35

Police Offences Ordinance 1930–1961 s 17(d): 13.165 Public Health Act 1997 s 66C: 14.20 s 66J: 14.20 Pt 3A: 14.20 Sexuality Discrimination Legislation Amendment Act 2004 Sch 2, Pt 2.1: 5.55

Criminal Code Regulation 2005: 14.150 Sch 1: 14.150 Sch 2: 14.150 Sch 3: 14.150

Supreme Court Act 1933 s 20: 2.155

Criminal Code (Serious Drug Offences) Amendment Act 2004: 14.150, 14.155

Terrorism (Extraordinary Temporary Powers) Act 2006: 15.150

Criminal Code (Theft, Fraud, Bribery and Related Offences) Amendment Act 2004: 12.40

Transplantation and Anatomy Act 1978 s 45: 9.35

Discrimination Act 1991 ss 65 to 67: 15.225

NEW SOUTH WALES

Domestic Violence and Protection Orders Act 2008 s 16: 13.25

Anti-Discrimination Act 1977: 15.225 s 20B: 13.80 ss 20C to 20D: 15.225 s 20D: 13.80 s 38S: 15.225 s 49ZT: 15.225 s 49ZXB: 15.225

Drugs in Sport Act 1999: 14.110 Drugs of Dependence Act 1989: 14.150 s 164: 14.95 s 164(3): 14.155 s 171: 14.150 s 171(1): 14.95 s 171A: 1.160

Bushranging Act 1830: 15.205 Children (Criminal Proceedings) Act 1985 s 5: 3.15

Environment Protection Act 1997 s 153: 3.310

Classification (Publications, Films and Computer Games) Enforcement Act 1995 s 6: 11.235

Evidence Act 2011 s 138(3): 2.150 Evidence (Miscellaneous Provisions) Act 1991 s 51: 11.180 s 73: 11.150

Confiscation of the Proceeds of Crime Act 1989: 14.180, 14.195 Crimes Act 1900: 4.195, 4.215, 6.120, 7.20, 8.85, 9.20, 9.30, 9.45, 9.110, 9.130, 9.185, 10.75, 11.190, 12.70, 12.135, 13.05, 13.215, 13.220 s 3: 6.120, 13.220 s 4: 6.120, 9.30, 9.235, 13.220 s 4(1): 9.120, 10.80, 10.90 s 4A: 9.110 s 4B: 12.45, 12.50, 12.70 s 4B(1): 12.70, 12.260 s 4B(2): 12.70 s 5: 12.15 s 10C: 2.65 s 10E(1): 2.70 s 18: 3.210, 9.110 s 18(1)(a): 3.210, 9.20, 9.110, 9.115, 9.120, 9.130 s 18(1)(b): 9.135, 9.160 s 18(2)(a): 9.110 s 20: 9.30 s 21: 9.235 s 22A(1): 5.125 s 23: 5.10, 5.60 s 23(2): 4.210, 5.10

Human Rights Act 2004: 1.75, 2.150, 2.155, 2.170, 9.60, 11.10, 13.90, 13.105 s 8: 2.200 s 12: 2.245 s 18(1): 2.170 s 21: 13.25, 14.230 s 22(1): 2.160 s 22(2): 2.155 Legislation Act 2001 s 160: 3.35 s 161(1): 3.35 s 161(2): 3.35 s 161(3): 3.35 Medical Treatment (Health Directions) Act 2006: 9.45 Medicines, Poisons and Therapeutic Goods Act 2008: 14.160 s 19: 14.160 s 78: 14.160 s 81: 14.160 liii

Principles of Criminal Law

s 61N: 11.210 s 61O: 11.210 s 61P: 11.210 s 61R(2)(c): 11.55 s 61AA: 10.135 s 61AA(1): 10.135 s 61AA(2): 10.135 s 61HA: 11.55, 11.115, 11.160 s 61HA(2): 11.85 s 61HA(3): 11.145, 11.160 s 61HA(4): 11.55 s 61HA(5)(c): 11.115, 11.120 s 61HA(6): 11.55 s 61HA(6)(b): 11.55 s 61HA(6)(c): 11.30 s 61HA(7): 11.50, 11.95 s 61JA(1): 11.165 s 65: 11.55 s 65A: 11.55 s 65A(2): 11.55 s 65A(3): 11.55 s 66C: 11.190 s 66C(5)(c): 11.165 s 66F(3): 11.200 s 73: 11.190 s 78A: 11.190 s 78B: 11.190 s 78N: 11.190 s 81C: 11.210 s 82: 9.215 s 83: 9.215 s 84: 9.215 s 85(1): 9.255 s 85(2): 9.255 s 86: 10.185 s 87: 10.185 s 91H(3): 11.245 s 91H(4): 11.245 s 91H(4)(a): 11.245 s 91H(4)(c): 11.245 s 93B: 13.220, 13.235 s 93B(5): 13.30 s 93C: 13.215, 13.220 s 93C(4): 13.215 s 93C(5): 13.30, 13.215 s 93E: 13.220 ss 93T(1) to (4): 15.270 s 94: 12.235 s 95: 12.235 ss 95 to 98: 12.235 s 109(1): 12.240 s 114(1)(b): 12.240 s 116: 12.15 ss 116 to 163: 12.15 s 117: 12.15 s 120: 12.25 s 154A: 12.95 s 154F: 12.95 ss 155 to 163: 12.20 s 161: 12.140 s 173: 12.35, 12.65, 12.100 s 178A: 12.115 s 178C: 12.280 s 178BA: 12.10, 12.105 s 183: 12.100 s 188: 12.245 s 189: 12.245

Crimes Act 1900 — cont ss 23(2)(a) to (b): 5.15 s 23(2)(b): 5.60 s 23(2)(d): 5.45 s 23(3): 5.55 s 23(4): 5.40 s 23(5): 5.40 s 23(7): 5.70 s 23A: 5.80, 5.85, 5.110 s 23A(1)(b): 5.115 s 23A(4): 5.120 s 23A(8): 5.110 ss 25A to 25B: 9.145 s 26: 8.85 s 27: 10.65 ss 27 to 30: 8.15 s 31: 10.170 s 31A: 9.200 s 31B(1): 9.205 s 31B(2): 9.205 s 31C: 9.200, 9.205 s 31C(1): 9.45 s 31C(2): 9.45 s 33: 9.30, 10.55, 10.80, 10.100 s 35: 9.30, 10.80, 10.100 s 35A: 10.80 s 36: 10.90 s 38: 10.180 s 38A: 10.180, 11.135 s 39: 10.180 s 43: 10.70, 10.180 s 44: 3.85, 9.165, 10.180 s 45: 10.105 s 46: 10.180 s 47: 10.180 s 48: 10.180 s 49: 10.75 s 49(1): 10.180 s 51A: 9.185 s 52A: 3.370, 7.60, 7.70, 9.185 s 52A(3): 9.30 s 52A(4): 9.30 s 52B(3): 9.30 s 52B(4): 9.30 s 54: 9.30, 10.75, 10.80, 10.100 s 55: 10.180 s 56: 10.70 s 57: 10.70 s 58: 10.65, 10.70 s 59: 10.75, 10.80 s 59A: 13.220 s 60: 10.70 s 60(1): 10.70 s 60(4): 10.70 s 60A: 10.70 s 60B(1): 10.70 s 60E: 10.70 s 61: 10.15 s 61C: 3.215 s 61H: 11.40 s 61H(1)(a): 11.45 s 61I: 11.35, 11.55, 11.115 s 61J: 11.55, 11.165 s 61J(2)(c): 11.165 s 61K: 11.55 s 61L: 11.210 s 61M: 11.210 liv

Table of Statutes

Crimes Amendment (Diminished Responsibility) Act 1997: 5.90, 5.165

Crimes Act 1900 — cont s 189A: 12.245 s 192I: 12.135 s 192J: 12.135 s 192K: 12.135 s 206: 10.70 s 249F: 7.20 s 249F(1): 7.20 s 308B(3): 3.125 s 308C: 15.265 s 308C(4)(a): 8.205 s 308D: 15.265 s 308E: 15.265 s 308F: 8.205, 15.265 s 308G: 8.205, 15.265 s 308H: 15.265 s 308I: 15.265 s 309: 15.250 s 319: 8.145 s 326: 10.70 s 341: 8.145 s 342: 8.145 s 344A: 8.30 s 346: 7.10, 7.20 ss 347 to 350: 7.20, 7.155 s 351B: 7.20 s 417: 12.240 s 418: 6.15 s 418(2): 6.20, 6.45, 6.50 ss 418 to 423: 4.210 s 420: 6.25 s 421: 6.55 s 428A: 4.215 ss 428A to 428I: 4.225 s 428B: 4.180 s 428B(2): 4.180, 4.190 s 428C: 4.155, 4.180, 4.190 s 428C(2): 4.180 s 428F: 4.195 s 428G(1): 4.170 s 428H: 2.25 s 475B: 2.100 s 545C(1): 13.200 s 545C(2): 13.200 s 545C(3): 13.200 s 546A: 15.205 s 546C: 13.85 s 574B: 9.200 s 578C: 11.10, 11.205, 11.210 s 580E: 2.100 Pt 3A, Div 3: 13.15 Pt 6: 15.240 Sch 11, s 65: 9.110

Crimes Amendment (Grievous Bodily Harm) Act 2005: 9.30, 10.80 s 4: 10.80 Crimes Amendment (Provocation) Act 2014: 5.10, 5.60 Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 Pt 8: 2.195 Crimes (Criminal Organisations) Act 2009: 15.275 Crimes (Domestic and Personal Violence) Act 2007: 10.175, 13.05, 13.45 s 8: 13.05 s 13: 10.175, 13.05 s 14: 13.45 s 25(1): 13.45 s 27: 13.45 s 35: 13.45 s 81: 13.45 Pt 13: 13.45 Crimes (Domestic Violence) Amendment Act 1993: 10.175 Crimes (Forensic Procedures) Act 2000: 2.245 Crimes (High Risk Offenders) Act 2006: 1.85 Crimes (Injuries) Amendment Act 1990: 10.90 Crimes Legislation Amendment Act 1996: 4.225 Crimes Legislation Amendment Act 2000 s 10C: 15.35 Crimes (Public Justice) Amendment Act 1990: 8.145 Crimes (Sentencing Procedure) Act 1999 s 10: 1.100 s 16: 3.35 s 21A: 1.55 s 21A(3)(j): 11.195 Criminal Assets Recovery Act 1990: 14.180, 14.195, 14.200 s 6(2): 14.200 s 16A: 14.200 s 16B: 14.200 Criminal Procedure Act 1986 s 8(2): 2.115 s 64: 2.115 s 132: 2.100 s 132(2): 2.100 s 132(3): 2.100 s 132(4): 2.100 s 293: 11.180 s 336: 1.160 Sch 1, ss 258 to 273: 2.100

Crimes Amendment Act 2007 Sch 1: 10.90 Crimes Amendment (Aggravated Sexual Assault in Company) Act 2001: 11.165 Crimes Amendment (Child Protection—Physical Mistreatment) Act 2001: 10.135

Dangerous Lunatics Act 1843: 4.15, 4.75

Crimes Amendment (Computer Offences) Act 2001: 15.240

Drug Court Act 1998 s 3: 14.30

Crimes Amendment (Consent—Sexual Assault Offences) Act 2007: 11.55, 11.145

Drug Summit Legislative Response Act 1999: 14.20 lv

Principles of Criminal Law

s 197(1)(d): 13.100 s 197(1)(e): 13.100 ss 197 to 200: 13.100 s 199(1): 13.105 s 200: 13.105 s 206: 13.120 Pt 3: 14.55 Pt 4: 14.55 Pt 11, Div 2: 14.55 Pt 11, Div 3: 14.55 Pt 14: 14.55 Pt 16: 13.120

Drug Summit Legislative Response Amendment (Trial Period Extension) Act 2003: 14.20 Drug Summit Legislative Response Amendment (Trial Period Extension) Act 2007: 14.20 Drug Trafficking (Civil Proceedings) Act 1990: 14.200 Drugs Misuse and Trafficking Act 1985: 14.150 s 3: 14.155 s 10: 14.150 s 10(1): 14.95 s 12(1): 14.145 s 21: 14.150 s 25: 14.95, 14.155 s 25A: 14.95 s 29: 14.155 s 30: 14.150 s 32: 14.150 s 33: 14.150 s 33(2)(a): 14.150 s 33(3)(a): 14.150 s 33AA: 14.155 s 36A: 14.20 s 36N(2): 14.20

Law Enforcement (Powers and Responsibilities) Amendment Act 2007: 14.55 Liquor Act 1982 s 114: 3.270 Mental Health (Forensic Provisions) Act 1990: 4.20 s 38: 4.20 s 39: 4.80 Obscene and Indecent Publications Act 1901: 11.230

Education Act 1990 s 35(2): 10.135 s 35(2A): 10.135

Piracy Punishment Act 1902 s 4: 15.15 s 5: 15.15 s 6: 15.15

Education and Public Instruction Act 1987 s 14: 10.135

Poisons Amendment Act 1970 s 21A: 14.150

Evidence Act 1995: 14.230 s 80: 5.165 s 138: 13.185, 14.220 s 138(3): 2.150, 14.230 s 141: 2.160

Police Act 1990 s 6: 13.15

Felons (Civil Proceedings) Act 1981: 2.95

Police Powers (Internally Concealed Drugs) Act 2001: 14.55 s 7: 14.55 s 8: 14.55

Police Powers (Drug Detection Dogs) Act 2001: 14.55 Police Powers (Drug Detection Trial) Act 2003: 14.55

Fines Act 1996 s 19A: 1.150 Human Tissue Act 1983 s 33: 9.35

Police Regulation 2000 reg 8: 13.15 reg 9: 13.15

Interpretation Act 1987 s 8(d): 3.35 s 21(1): 3.35

Police Service Regulation 1990 cl 7: 13.110

Intoxicated Persons Act 1979: 13.120

Protection of the Environment Operations Act 1997 s 118: 3.310

Law Enforcement (Controlled Operations) Act 1997: 14.220 s 14: 14.220 s 23(1): 14.220

Public Assemblies Act 1979: 13.210 Road Transport Legislation Amendment (Car Hoons) Act 2008: 13.135

Law Enforcement (Powers and Responsibilities) Act 2002 s 4: 13.35 s 9: 13.35 s 11: 13.100 s 12: 13.100 s 21: 14.55 s 21A: 14.55 s 36: 14.55 s 37: 14.55 s 82: 13.35 s 83: 13.35 s 197: 13.100, 14.55

Road Transport (Safety and Traffic Management) Act 1999 s 40: 13.135 ss 40 to 43: 13.135 s 41: 13.135 Sports Drug Testing Act 1995: 14.110 Summary Offences Act 1988: 13.220, 14.55 s 4: 13.155 s 4A: 13.155 s 6: 13.205 s 11A: 13.220 lvi

Table of Statutes

s 30(1): 3.325 s 30(2): 3.330 s 30(3): 3.340 s 31: 3.105, 4.170, 9.140, 9.170, 10.55, 11.145 s 31(1): 10.55, 11.145 s 32: 3.275, 3.285, 6.170 s 33: 6.140, 6.165, 6.175, 9.240 s 38(1): 3.15 s 38(2): 3.25 s 40: 6.70, 6.80, 6.90, 6.100 s 40(1)(b): 6.95, 6.110 s 40(1)(d): 6.110 s 40(2): 6.105 s 43A: 4.20, 4.35, 4.40, 4.200, 4.215 s 43C: 4.20, 4.200 s 43C(1)(a): 4.20 s 43C(1)(b): 4.20, 4.60 s 43C(1)(c): 4.20 s 43D(1): 3.10, 4.70 s 43D(2): 4.70, 4.140 s 43E: 4.70 s 43F: 4.100 s 43F(1)(b): 4.70 s 43I: 4.80 s 43AD: 7.50 s 43AF: 3.105, 4.85 s 43AF(2): 4.90, 4.170 s 43AF(5): 4.165, 4.170 s 43AI(2): 7.65, 9.115 ss 43AI(2) to (3): 8.75 s 43AJ: 8.75 s 43AK: 10.100, 11.160 s 43AK(1): 3.210, 7.120, 9.110 s 43AK(2): 3.210, 9.110 s 43AL: 3.225 s 43AL(a): 9.175 s 43AM: 3.245 s 43AN: 3.275 s 43AP: 3.15 s 43AQ: 3.25 s 43AR(1)(a): 4.215 s 43AS: 4.165 s 43AS(1): 4.155, 4.180 s 43AT(1): 4.195 s 43AT(2): 4.195 s 43AU: 4.210 s 43AV: 4.170, 4.200, 4.215 s 43AW: 6.170 s 43AX: 3.275, 3.285, 3.295, 6.170 s 43AY(2)(a): 3.325 s 43AY(3): 3.340, 3.355 s 43AZ: 3.330 s 43BB: 6.70, 6.80, 6.85, 6.100 s 43BB(2): 6.90, 6.95 s 43BB(2)(b): 6.110 s 43BB(3): 6.70, 6.105 s 43BC: 6.140, 6.165, 6.175 s 43BC(2): 6.160 s 43BD: 6.15 s 43BD(2): 4.210, 6.45 s 43BD(2)(a): 6.50 s 43BD(2)(a)(i): 6.20 s 43BD(3): 6.25, 6.35 s 43BF(2): 8.35, 8.55 s 43BF(3): 8.35 s 43BF(4): 8.75 s 43BF(6)(a): 8.200, 8.205

Summary Offences Act 1988 — cont s 11A(4): 13.30 s 11H: 13.135 s 28: 13.220 s 28F: 13.100 Terrorism (Commonwealth Powers) Act 2002 s 4(1)(a): 15.175 s 4(1)(b): 15.175 Terrorism (Police Powers) Act 2002 Pt 2A: 15.150 Workers Compensation Act 1987 s 155: 3.270 World Youth Day Act 2006: 13.210 Young Offenders Act 1997: 1.95 s 3(c): 1.95

NORTHERN TERRITORY Advance Personal Planning Act: 9.45 Classification of Publications, Films and Computer Games Act s 50X: 11.235 s 50Z: 11.235, 11.245 s 50Z(2): 11.245 Classification of Publications, Films and Computer Games Act s 37(2): 11.235 s 49: 11.235 Crimes Property Forfeiture Act: 14.180, 14.195 Criminal Code: 2.25, 3.275, 4.20, 4.45, 4.170, 4.195, 5.60, 6.120, 7.20, 8.85, 8.175, 9.20, 9.45, 9.185, 10.75, 10.80, 10.130, 11.190, 12.15, 15.150 s 1: 3.35, 4.215, 6.15, 6.80, 9.35, 9.120, 10.80, 11.40, 11.45 s 1A: 10.80, 10.90 s 1C(1): 9.30 s 1C(2): 9.30 s 3: 2.100 s 4: 8.30, 8.35, 8.40 s 4(1): 8.75 s 4(2): 8.60 s 4(3): 8.205 s 5: 2.160 s 11: 10.135 s 12: 6.70, 7.10 s 12(1)(a): 7.20 s 12(1)(b): 7.20, 7.50 s 12(1)(c): 7.20 s 13: 7.20, 7.155, 7.170 s 13(1): 7.175 s 26(3): 10.155 ss 27(a) to (b): 10.120 s 28: 10.120 s 29: 6.15 s 29(2): 6.45 s 29(2)(a): 6.50 s 29(2)(a)(i): 6.20 s 29(2)(a)(ii): 10.120 s 29(3): 6.25 s 29(5): 6.35 lvii

Principles of Criminal Law

s 159(1)(c): 5.115 s 159(4): 5.120 s 160: 9.135, 9.140 s 160(b): 9.200 s 160(c): 9.160, 9.170 s 161A: 9.145 s 162: 9.45, 9.200 s 163: 9.255 s 165: 8.15, 10.65 s 166: 10.170 s 166(1): 10.170 s 166(2): 10.170 s 170: 9.30, 9.235, 9.240, 9.245 ss 174C to 174E: 10.05, 10.75, 10.80, 10.190 s 174D: 10.100 s 174E: 10.75, 10.100 s 174F: 9.185 s 176: 10.180 s 176A: 10.180, 11.135 s 177: 10.100 s 177(c): 10.180 s 181: 10.80 s 182: 10.180 s 183: 3.85, 9.165, 9.190, 10.180 s 184: 10.180 s 185: 10.180 s 186: 10.80 s 187: 10.20, 10.40, 10.140 s 187(a): 10.50 s 187(b): 10.25, 10.30, 10.35 s 187(e): 10.115 s 188: 10.15 s 188(2)(b): 10.70 s 188(2)(c): 10.70 s 188(2)(d): 10.70 s 188(2)(e): 10.70 s 188(2)(f): 10.70 s 188(2)(g): 10.70 s 188(2)(h): 10.65, 10.70 s 188(2)(k): 11.210 s 189: 10.175 s 189A: 10.65, 10.70 s 191: 10.70 s 192: 11.145, 11.160, 11.210 s 192(1): 11.85 s 192(2)(f): 11.120 s 192(3): 11.35, 11.145 s 192A(a): 11.50, 11.95 s 192A(b): 11.50 s 193: 10.65 s 194: 10.185 s 195: 10.185 s 196: 10.185 s 200: 10.170 s 201: 11.210 s 202: 10.185 s 208A: 9.215 s 209: 12.05, 12.15, 12.40 s 209(1): 12.20, 12.45, 12.85 s 209(4): 12.165 s 210: 12.15 s 211: 12.235 s 213: 12.240 s 215: 12.240 s 218: 12.95 s 221: 12.145 s 222: 12.145, 15.265

Criminal Code — cont s 43BF(7): 8.190 s 43BF(9): 8.75 s 43BF(10): 8.170 s 43BG: 7.10 s 43BG(1): 7.20 s 43BG(2)(a): 7.30 s 43BG(3)(a): 7.75 s 43BG(3)(b): 7.65, 7.120, 7.135 s 43BG(5): 7.90 s 43BG(6): 7.10, 7.185 s 43BH: 7.105 s 43BI: 8.175 s 43BI(1): 8.180 s 43BI(2): 8.185 s 43BI(4): 8.200, 8.220 s 43BI(7): 8.175 s 43BJ: 8.115 s 43BJ(2)(b): 8.150 s 43BJ(2)(c): 8.85, 8.95, 8.100 s 43BJ(4)(a): 8.200, 8.215 s 43BJ(4)(d): 8.120 s 43BJ(6): 8.100 s 43BJ(7): 8.190 s 43BJ(10): 8.85 s 43BK(3): 3.35 ss 43BK to 43BM: 3.55 s 43BN: 3.60 ss 45 to 46: 15.215 s 73: 15.15 s 74: 15.15 s 75: 15.15 s 125B: 11.210 s 125B(4): 11.245 s 125C: 11.210 s 127: 11.190, 11.220 s 127(1)(b): 11.210 s 127(2)(a): 11.165 s 128(1)(b): 11.210 s 130: 11.200 s 130(2)(b): 11.210 s 131(1)(b): 11.210 s 132: 11.210 s 134(1): 11.190 s 134(2): 11.190 s 134(3): 11.190 s 140: 11.210 s 149: 9.190 s 149C: 3.125, 10.05, 10.75, 10.80, 10.190 s 150: 6.180, 9.170, 10.180 ss 150 to 151: 9.190 s 151: 9.165, 9.170 s 154: 4.225 s 155: 3.85, 9.170, 9.190 s 156(1)(a): 9.20 s 156(1)(b): 9.20, 9.200 s 156(1)(c): 9.20, 9.115, 9.120 s 158: 4.210, 5.10 s 158(2): 5.10 s 158(2)(b): 5.45, 5.60 s 158(3): 5.20 s 158(4): 5.40 s 158(5): 5.55, 5.155 s 158(6)(a): 5.60 s 158(7): 5.70 s 159: 5.80, 5.110 s 159(1): 5.85 lviii

Table of Statutes

s 9(1): 14.95 s 9(2)(a): 14.150 s 9(2)(b): 14.150 s 9(2)(c): 14.150 s 12(2): 14.20 s 12(3): 14.20 s 12(5): 14.20 s 13: 14.145 s 20A: 1.160 s 40(c): 14.155

Criminal Code — cont s 226A: 6.05 s 226B: 6.05 s 227: 12.275 s 228A: 12.135 s 228C: 12.135 s 228D: 12.135 s 228E: 12.135 s 229: 12.245 s 240: 3.125 s 276(2): 3.125 s 276B: 15.265 s 276C: 15.265 s 276D: 15.265 s 276E: 15.265 s 277: 8.30 s 280: 8.175 s 282: 8.85 s 283: 8.85 s 284: 8.85, 8.140 s 285: 8.85 s 286: 8.85, 8.145 s 288: 8.85 s 289: 8.85 s 291: 8.110 s 292(a): 8.120 s 292(e): 8.115 s 315: 10.15 s 428D(b): 4.215 s 428G: 4.215 Pt IIAA: 7.105 Pt VI: 10.105 Div 3: 4.215 Sch 1: 3.325, 8.115

Police Administration Act: 1.95 s 159: 13.85 Pt VII, Div 7: 2.245 Rights of the Terminally Ill Act: 9.50, 9.55, 9.85 s 3: 9.50 s 7(1)(c): 9.50 s 7(1)(c)(iv): 9.50 s 20(1): 9.50 Sentencing Act s 5: 1.55 s 78A: 2.230 Sentencing Amendment Act (No 3): 2.230 Serious Sex Offenders Act: 1.85 Summary Offences Act s 47A(1): 13.100 s 47AA: 13.215 s 55A: 15.205 Termination of Pregnancy Law Reform Act 2017 s 7: 9.215, 9.225 s 8: 9.215, 9.225 s 9: 9.215, 9.225 s 10: 9.225 s 13: 9.225

Criminal Code Act: 2.20, 15.150 Criminal Code Amendment (Criminal Responsibility Reform) Act: 10.05, 11.145

Terrorism (Emergency Powers) Act Pt 2B: 15.150

Criminal Law Amendment Ordinance 1939–1960: 2.225

Terrorism (Northern Territory) Request Act: 15.175

Criminal Law and Procedure Ordinance 1933 s 55(2): 6.120

Transplantation and Anatomy Act s 23: 9.35

Criminal Reform Amendment Act (No 2): 5.90 s 17: 5.55

Youth Justice Act: 1.95

Emergency Medical Operations Act s 3(1): 10.155

QUEENSLAND

Evidence (National Uniform Legislation) Act s 138(3): 2.150

Acts Interpretation Act 1954 s 32D: 3.35 s 36: 3.35 s 46: 3.35

Interpretation Act s 17: 3.35 s 24AA: 3.35 s 38B: 3.35

Anti-Discrimination Act 1991: 13.80 s 124A: 15.225

Juvenile Justice Act s 53(1): 2.230

Anti-Discrimination Amendment Act 2001: 13.80 Backward Persons Act 1938: 4.15

Juvenile Justice Amendment Act (No 2): 2.230

Classification of Computer Games and Images Act 1995 s 26(3): 11.245 s 59(1): 11.245

Law Reform (Gender, Sexuality and De Facto Relationships) Act: 11.220 Misuse of Drugs Act: 14.150 s 5: 14.95 s 5(2): 14.155

Classification of Films Act 1991 s 41(3): 11.245 lix

Principles of Criminal Law

s 224: 9.215 s 225: 9.215 s 226: 9.215 s 227: 11.210 s 228: 11.210 s 236: 11.210 s 245: 6.30, 10.25, 10.30, 10.35, 10.40, 10.140 s 245(1): 10.20, 10.50 s 245(2): 10.50 s 254: 10.120 s 257: 10.120 s 261: 13.235 s 267: 6.25 s 268: 10.130 s 269: 10.130 s 271: 4.210, 6.15, 6.20, 6.30, 6.35, 6.40, 6.50, 10.120 s 271(1): 6.15 s 271(2): 6.15, 6.45 s 272: 6.30, 6.40, 6.50 s 273: 6.20 s 274 to 279: 6.25 s 280: 10.135 s 282: 6.150, 6.155, 9.225, 10.155 s 282(1): 6.180 s 283: 6.55 s 285: 3.85, 9.165, 9.190, 10.180 s 286: 9.190 s 288: 10.180 ss 288 to 289: 9.190 s 289: 9.165, 9.170 s 291: 9.20, 9.140 s 292: 9.30 s 293: 9.20 s 300: 9.20, 9.200 s 302: 9.20 s 302(1)(a): 9.20, 9.115, 9.120 s 302(1)(b): 9.130 s 302(1)(d): 9.130 s 302(1)(e): 9.130 s 303: 9.135, 9.160, 9.180 s 304: 4.210, 5.10, 5.55 s 304(2): 5.20, 5.55 s 304A: 5.80, 5.85 s 304A(2): 5.120 s 304B: 5.75, 6.65 s 306: 8.15, 10.65 s 307: 7.155 s 308: 10.170 s 309: 8.130 s 311: 9.45, 9.200 s 313: 9.30, 9.240 s 313(1): 9.235, 9.245 s 313(2): 9.235 s 314: 9.255 s 314A: 9.145 s 316: 10.180 s 316A: 10.180, 11.135 s 317: 10.75, 10.80, 10.100 s 317(b): 10.90, 11.120 s 317(g): 10.180 s 320: 9.180, 10.75, 10.80, 10.100 s 321: 10.180 s 322: 10.180 s 323(1): 10.80 s 323A: 10.105 s 323B: 10.105

Classification of Films Act 1991 — cont s 58: 11.245 Classification of Publications Act 1991 s 14: 11.245 s 37: 11.245 Pt 3: 11.235 Corrective Services Act 2000 s 92: 13.235 Crime and Misconduct Act 2001: 12.300, 15.150 Pt 6A: 14.220 Criminal Code: 2.25, 3.05, 4.20, 5.20, 6.15, 7.20, 8.40, 8.85, 9.20, 9.45, 9.130, 9.185, 10.75, 10.165, 11.190, 12.15, 12.155, 12.275 s 1: 3.35, 6.80, 9.120, 10.80, 10.90, 11.45 s 3: 2.100 s 4: 8.30, 8.35, 8.40 s 4(1): 8.75 s 4(2): 8.60 s 4(3): 8.205 s 7: 6.70, 7.10, 7.20 s 7(1)(b): 7.20, 7.50 s 7(1)(c): 7.20 s 7(1)(d): 7.20, 14.155 s 8: 7.120, 7.135, 7.140, 7.185, 9.120 s 9: 9.120 s 10: 7.20, 7.155, 7.170, 7.175 s 12: 2.65 s 22(1): 3.325 s 22(2): 3.330 ss 22(3) to (4): 3.340 s 23: 3.105, 4.85, 4.170, 10.55, 10.100 s 23(1): 4.170 s 24: 3.275, 3.285, 6.170 s 25: 6.140, 6.155 s 26: 3.10, 4.70 s 27: 4.20, 5.95 s 27(1): 4.20, 4.40 s 28: 4.215 s 28(1): 4.200 s 28(2): 4.200 s 28(3): 4.155, 4.180 s 29(1): 3.15 s 29(2): 3.25 s 31: 6.70 s 31(1)(d): 6.70, 6.80, 6.85, 6.90, 6.100 s 31(1)(d)(ii): 6.110 s 31(2): 6.105 s 31(d)(ii): 6.95 s 32: 6.120 s 39: 12.80 ss 44 to 46: 15.215 s 52: 15.215 s 72: 13.215 s 80: 15.15 s 132: 8.145 s 210: 11.210 s 216: 11.200 s 216(2): 11.210 s 218: 11.115 s 218A(6): 8.205 s 219: 11.210 s 219(1): 10.185 s 222(1): 11.190 s 222(2): 11.190 lx

Table of Statutes

s 542(2): 8.85 s 543: 8.85 s 543(2): 8.85 s 544: 7.155 s 568(1): 12.140 s 575: 10.15 s 581: 12.25 s 647: 4.80 Ch 24: 13.15

Criminal Code — cont s 324: 10.180 s 326: 10.180 s 327: 10.180 s 328: 10.75, 10.80, 10.100 s 328A: 9.185 s 328A(4): 9.185 s 335: 10.15 s 338A: 10.70 s 339: 10.75 s 340(1)(a): 10.65 ss 340(1)(a) to (d): 10.65 s 340(1)(b): 10.70 ss 340(g) to (h): 10.70 s 348(1): 11.85 s 348(2)(d): 11.30 s 348(2)(e): 11.125 s 349: 11.35, 11.145 s 349(2): 11.40 s 352: 11.210 s 352(3)(a): 11.165 s 354: 10.185 s 354A: 10.185 s 355: 10.185 s 359: 10.170 s 359A: 10.175 ss 359A to 359F: 10.175 s 359B: 10.175 s 363: 10.185 s 363A: 10.185 s 364: 10.180 s 390: 12.15 s 391: 12.20 s 391(1): 12.15 s 391(2): 12.15, 12.35 s 393: 12.165 s 398: 12.15 ss 398(5) to (8): 12.20 s 408A: 12.95 s 408C: 12.65, 12.135, 12.270, 12.275 s 408C(1): 12.115 s 408C(1)(d): 12.10, 12.280 s 408C(3)(d): 12.155 s 408C(3)(e): 12.275 s 408D: 12.135 s 408D(1): 12.135 s 408E: 12.115 s 408E(1): 15.265 s 408E(2): 15.265 s 408E(3): 15.265 s 409: 12.235 s 419: 12.240 s 425: 12.240 s 427A: 12.275, 12.285 s 427A(2): 12.285 s 429: 12.25 s 430: 8.140 s 433: 12.245 s 469A: 15.150 s 535: 8.30 s 538: 8.60 s 539: 8.175 s 540: 10.180 s 541: 8.85 s 541(2): 8.85 ss 541 to 543: 8.85 s 542: 8.85

Criminal Code Act 1899: 2.20 Criminal Code (Double Jeopardy) Amendment Act 2007: 2.195 Criminal Code and Other Legislation Amendment Act 2011: 5.20 s 5: 5.55 Criminal Law Amendment Act 1993 s 3: 10.175 Criminal Law Amendment Act 1996 s 47(2): 9.235 Criminal Law Amendment Act 2017: 5.20 s 10: 5.55 Criminal Proceeds Confiscation Act 2002: 14.180, 14.195 Dangerous Prisoners (Sexual Offenders) Act 2003: 1.85 Domestic and Family Violence Protection Act 2012 s 100: 13.45 s 138: 13.45 Drug Rehabilitation (Court Diversion) Act 2000: 14.30 Drugs Misuse Act 1986: 7.75, 14.150 s 6: 14.95 s 8: 14.150 s 9: 14.95 s 9(a): 14.150 s 9(b): 14.150 s 9(d): 14.150 s 10(3): 14.20 G20 (Safety and Security) Act 2013: 13.75, 13.145 s 2: 13.75 Health Act Amendment Act 1971 s 7: 14.150 s 12: 14.150 Law Reform Act 1995 s 16: 10.155 Major Events Act 2014: 13.75 Mental Health Act 2000: 4.80 Peaceful Assembly Act 1992: 13.75, 13.90 s 2(1): 13.90 s 3: 13.90 s 5: 13.210 s 5(1): 13.90 s 6(1): 13.90 Penalties and Sentences Act 1992 s 9: 1.55 s 9(6): 11.195 lxi

Principles of Criminal Law

Criminal Law Consolidation Act 1935: 4.20, 7.20, 8.175, 9.20, 9.45, 9.110, 9.185, 10.75, 10.80, 11.65, 11.190, 11.205, 12.15, 12.135, 12.200 s 5: 11.40, 11.190 s 5(3): 11.45 s 5C: 2.70 s 5D: 2.100 s 5G: 2.65 s 5AA: 10.75 s 5AA(1)(c): 10.65, 10.70 s 5AA(1)(e): 10.70 s 5AA(1)(f): 10.70 s 5AA(1)(g): 10.70 s 5AA(1)(j): 10.70 s 5AA(c)(i): 10.70 s 12(a): 8.85, 8.130 s 12A: 9.20, 9.130 s 13(2): 9.150 s 13A(1): 9.200 s 13A(2): 9.200 s 13A(3): 9.205 s 13A(5): 9.45, 9.200 s 13A(7): 9.200 s 13A(10)(a): 9.205 s 13A(10)(b): 9.205 s 13A(11): 9.205 s 14(1)(c): 9.170 s 15: 6.55, 10.120 s 15(1): 4.210, 6.15, 6.45 s 15(1)(a): 6.50 s 15(1)(b): 6.50, 6.55 s 15(2): 6.50, 6.55 s 15(3)(a): 6.20 s 15(4): 6.35 s 15A(1)(a)(i): 6.25 s 15A(1)(b): 6.25 s 15C: 6.05 s 15C(2): 4.210 s 19: 10.170 s 19(2): 10.170 s 19(3): 10.170 s 19A(1): 9.185 s 19AA: 10.175 s 20: 10.15, 10.20, 10.65, 10.70 s 20(1): 10.140 s 20(4): 10.75 ss 20 to 29: 10.05 ss 20 to 29A: 10.75, 10.80, 10.190 s 21: 3.125, 3.210, 9.110, 10.80, 10.90 s 23: 10.75, 10.100 s 24: 10.75, 10.190 s 24(2): 10.100 s 29: 10.180 s 30: 3.85, 9.165, 10.180 s 32C: 11.135 s 39: 10.185 s 46: 11.120 s 46(2): 11.85 s 46(3)(a)(i): 11.25 s 47: 11.160 s 48: 11.35, 11.160 s 48(1): 11.145 s 48A(1)(b): 11.165 s 49(3): 11.190 s 49(5): 11.30, 11.190 s 49(6): 11.200 s 51: 11.200

Police Powers and Responsibilities Act 2000: 13.100 ss 36 to 41: 13.100 s 46: 13.100 s 47(2): 13.105 s 48: 13.100 s 50: 13.35, 13.60 s 51: 13.235 s 790: 13.85 s 791: 13.85 Ch 17: 2.245 Powers of Attorney Act 1998 s 36(2): 9.90 Ch 3, Pt 3: 9.45 Sale and Use of Poisons Act 1891: 14.70 Sports Drug Testing Act 2003: 14.110 Summary Offences Act 2005 s 6: 13.135, 13.160 Terrorism (Commonwealth Powers) Act 2002 s 4(1)(a): 15.175 s 4(1)(b): 15.175 Terrorism (Community Safety) Amendment Act 2004: 15.150 Terrorism (Preventative Detention) Act 2005: 15.150 Transplantation and Anatomy Act 1979 s 45(1): 9.35 Vagrants, Gaming and Other Offences Act 1931 s 7(1)(d): 13.160 Youth Justice Act 1992: 1.95

SOUTH AUSTRALIA Acts Interpretation Act 1915 s 4: 3.35 s 26: 3.35 Advance Care Directives Act 2013 Pt 3: 9.90 Authorised Betting Operation Act 2000: 14.220 Consent to Medical Treatment and Palliative Care Act 1995: 9.45 s 13(1): 10.155 Controlled Substances Act 1984: 14.150 s 32: 14.95 s 32(1): 14.150 s 32(2): 14.150 s 32(3): 14.150 s 32(5): 14.155 s 33L: 14.20, 14.150 s 33L(1)(a): 14.95 s 33L(2)(a): 14.95 s 45A: 1.160 Controlled Substances (General) Regulations 2000 reg 8A(1): 14.20 Criminal Assets Confiscation Act 2005: 14.180, 14.195 lxii

Table of Statutes

Criminal Law Consolidation Act 1935 — cont s 56: 11.210 s 57: 11.100, 11.190 s 57(1): 11.190 s 58: 8.175, 11.210 s 58A: 11.210 s 59: 10.185 s 60(b): 11.115 s 62: 11.245 s 63(a): 3.270 s 63A(2): 11.245 s 63B: 8.175 s 63B(1)(a): 3.270 s 72: 11.190 s 80: 10.185 s 81(1): 9.215 s 81(2): 9.215 s 82: 9.215 s 82A: 9.215 s 82A(1)(a): 9.225 s 82A(1)(b): 9.225 s 82A(3): 9.225 s 82A(8): 9.30, 9.240 s 83(1): 9.255 s 84: 12.90, 12.155 ss 86B to 86I: 15.240 s 86E: 15.265 s 86G: 15.265 s 86H: 15.265 s 86I(1)(a): 15.265 s 86I(1)(b): 15.265 s 130: 12.155, 12.165, 12.175, 12.245, 12.275 s 131: 12.15, 12.45, 12.50, 12.105 s 131(4): 12.45 s 132: 12.100 s 133(2): 8.140 s 134: 12.15, 12.85, 12.245 s 134(1)(a): 12.15 s 134(1)(b): 12.40, 12.90 s 134(1)(c): 12.15 s 134(1)(c)(ii): 12.200 s 134(2): 12.200 s 134(3)(a): 12.85, 12.110 s 136: 12.140 s 137(1): 12.235 s 137(2): 12.235 s 139: 12.270 ss 140 to 142: 12.260 s 141: 12.105, 12.275 s 142(2): 12.280 s 143: 12.100, 12.195 s 144: 12.195 s 144B: 12.135 s 144C: 12.135 s 144D: 12.135 s 168: 12.240 s 174: 15.15 s 192E: 12.260 s 241: 7.20 s 241(1)(a): 7.175 s 241(1)(b): 7.175 s 241(2): 7.170 s 241(2)(b): 7.180 s 267: 7.10, 7.20, 7.100 s 268: 4.160 s 268(1): 4.180 s 268(2): 4.180

s 268(3): 4.180 s 268(4): 4.195 s 268(5): 4.195 s 268(6): 4.180 s 269A(1): 4.20, 4.35, 4.40, 4.200 s 269C: 4.20, 4.60 s 269C(a): 4.20 s 269C(b): 4.20 s 269C(c): 4.20 s 269D: 3.10, 4.70 s 269E: 4.20 s 269E(1)(b): 4.70 s 269F: 4.70 s 269F(3): 4.140 s 269O: 4.80 s 270A: 8.30 s 270B: 10.65 s 328A: 6.120, 6.125, 6.130, 6.135 Pt 3, Div 8: 10.105 Pt 7A: 13.15 Criminal Law Consolidation (Criminal Neglect) Amendment Act 2005: 9.170 Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008: 2.195 Criminal Law Consolidation (Identity Theft) Amendment Act 2003: 12.135 Criminal Law Consolidation (Intoxication) Amendment Act 2004: 4.160 Criminal Law Consolidation (Offences of Dishonesty) Amendment Act 2002: 12.05, 12.10, 12.40 Criminal Law Consolidation (Self-Defence) Amendment Act 1997: 6.55 Criminal Law (Forensic Procedures) Act 2007: 2.245 Criminal Law (High Risk Offenders) Act 2015: 1.85 Criminal Law (Sentencing) Act 1988 s 10: 1.55 s 10(1)(l): 11.195 Criminal Law (Undercover Operations) Act 1995: 14.220 Dangerous Drugs Amendment Act (No 2) 1970 s 5: 14.150 Death (Definition) Act 1983 s 2: 9.35 Evidence Act 1929 s 34L: 11.180 s 69: 3.270 s 71: 3.270 Mental Defectives Act 1913: 4.15 Racial Vilification Act 1996: 13.80 s 4: 15.225 Road Traffic Act 1934–39 s 30: 3.275 Road Traffic Act 1961 s 144: 3.280 s 146: 3.280 lxiii

Principles of Criminal Law

s 2A: 10.140, 11.50 s 2A(1): 11.85 s 2A(2)(e): 11.30 s 3: 7.10 s 3(1)(b): 7.20, 7.50 s 3(1)(c): 7.20 s 3(1)(d): 7.20 s 4: 7.120, 7.135 s 5: 2.100 s 6: 7.20, 7.155, 7.170, 7.175 s 8: 4.215, 6.140 s 13: 4.170, 9.120, 10.100 s 13(1): 3.105, 4.85, 4.170 s 14: 3.275, 3.285, 3.295 s 14A(1)(c): 11.85 s 15: 3.10, 4.70 s 16: 4.20, 4.65 s 16(1): 4.20 s 16(1)(a)(i): 4.20, 4.55 s 16(1)(a)(ii): 4.20 s 16(1)(b): 4.20, 4.65 s 17(1): 4.200 s 17(2): 4.155, 4.180 s 18: 9.120 s 18(1): 3.15 s 18(2): 3.25 s 20: 6.70, 6.80, 6.90, 6.95, 6.100 s 20(1): 6.70, 6.85, 6.90, 6.105, 6.110 s 20(2): 6.120 s 26: 10.120 ss 30 to 31: 10.120 ss 40 to 45: 6.25 s 46: 4.210, 6.15, 6.20, 6.45, 6.50 s 50: 10.135 s 51: 6.150 s 51(1): 10.155 s 51(3): 10.155 s 52: 6.55 s 61I: 4.180 s 61J: 4.180 s 61K: 4.180 ss 66 to 67: 15.215 s 73(3): 13.235 s 80: 13.215 ss 116 to 117: 13.70 s 124: 11.190 s 126: 11.200 s 127: 11.210 s 127A: 11.210 s 129: 11.115 s 129(b): 11.115 s 133(1): 11.190 s 133(2): 11.190 s 137: 11.210 s 138: 11.210 s 139: 11.210 s 144: 3.85, 9.165, 9.190, 10.180 s 145: 9.190 s 147: 9.190 s 149: 6.150 ss 149 to 150: 9.190 s 150: 9.165, 9.170 s 153: 9.05, 9.20 s 153(1): 9.200 s 153(4): 9.30 s 154: 9.05 s 156(2): 9.20

Rundle Street Mall Act 1975 s 11(1)(a): 13.145 Serious and Organised Crime (Control) Act 2008: 15.275 Sports Drugs Testing Act 2000: 14.110 Statutes Amendment (Computer Offences) Act 2004: 15.240 Statutes Amendment and Repeal (Aggravated Offences) Act 2005: 10.05 Summary Offences Act 1953: 11.205 s 6: 10.70 s 6(2): 13.85 s 7: 13.155 s 13: 15.205 s 18: 13.100 s 22: 13.180 s 26A: 11.205 s 26A(3): 11.205 s 26B: 11.205 s 26B(4)(d): 11.205 s 26C: 11.205 s 26C(2)(a)(ii): 11.205 s 26C(2)(b): 11.205 s 33(5): 11.245 s 44: 15.265 s 44A: 15.265 s 59: 13.70 Summary Offences (Filming Offences) Amendment Act 2013: 11.205 Terrorism (Commonwealth Powers) Act 2002 s 4(1)(a): 15.175 s 4(1)(b): 15.175 Terrorism (Preventative Detention) Act 2005: 15.150 Young Offenders Act 1993: 1.95 s 5: 3.15

TASMANIA Acts Interpretation Act 1931 s 24A(2): 3.35 s 35: 3.35 s 41(1): 3.35 Anti-Discrimination Act 1998 s 19: 15.225 Classification (Publications, Films and Computer Games) Enforcement Act 1995 s 81(1): 11.245 Crime (Confiscation of Profits) Act 1993: 14.180, 14.195 Criminal Code: 2.20, 2.150, 2.245, 4.20, 4.215, 5.10, 5.60, 6.70, 6.140, 7.20, 8.75, 8.85, 8.175, 9.20, 9.45, 9.120, 9.130, 9.185, 10.75, 10.130, 11.190, 12.15 s 1: 6.80, 10.80, 11.40, 11.45 s 2: 8.30, 8.35 s 2(1): 8.75, 8.205 s 2(2): 8.60, 8.205 s 2(4): 8.35 lxiv

Table of Statutes

s 297(1)(b): 8.145 s 297(2): 8.110 s 298: 8.175 s 299: 8.30 s 300: 7.20, 7.155 s 334A: 10.15 s 338(1): 12.25 s 342(3): 8.190 s 381: 4.70 s 381(3): 4.140 Ch XXXIIB: 13.15

Criminal Code — cont s 156(2)(a): 9.20 s 156(2)(b): 9.160 s 156(2)(c): 9.140 ss 156 to 159: 9.05 s 157: 9.20 s 157(1)(a): 9.20, 9.115 s 157(1)(b): 9.20, 9.120 s 157(1)(c): 9.20, 9.120 s 157(1)(d): 9.20, 9.130 s 157(1)(d) to (f): 9.130 s 157(1)(e): 9.130 s 157(2): 9.130 s 158: 9.20 s 159: 9.135 s 159(1): 9.140 s 161: 7.20, 7.155 s 162: 10.170 s 163: 9.45, 9.200 s 164(2): 9.225 s 164(9): 9.225 s 165A: 5.125 s 166(1): 9.255 s 166(2): 9.255 s 167A: 9.185 s 169: 10.180 s 170: 10.75, 10.80, 10.100 s 170(c): 10.180 s 172: 10.75, 10.80, 10.100 s 175: 10.180 s 178: 10.180 ss 178A to 178C: 10.105 s 179: 10.180 s 181: 10.180 s 182: 10.20, 10.40, 10.55 s 182(1): 10.25, 10.35, 10.50, 10.170 s 182(2): 10.30 s 182(3): 10.115 s 182(4): 10.140 s 183: 10.75 s 183(a): 10.65 s 183(b): 10.70 s 184: 10.15 s 185: 11.35, 11.145 s 186: 10.185 s 189: 10.185 s 191A: 10.185 s 192: 10.175 s 226(1): 12.15 s 226(2): 12.15 s 227: 12.15 s 233: 12.145 s 234: 12.15 s 240: 12.235 s 244: 12.240 s 248: 12.240 s 252: 12.25 s 252A: 12.10 s 253A: 8.140 s 257B: 15.265 s 257C: 15.265 s 257D: 15.265 s 257E: 15.265 s 257F(1): 2.65, 15.265 s 258: 12.245 s 261: 12.115 s 297: 8.85

Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003: 4.210, 5.10, 10.130 Criminal Code Amendment Act 1997: 11.195 Criminal Code Amendment (Financial Advantages) Act 1989 s 4: 12.10 Criminal Injuries Compensation Amendment Act 1996: 14.200 Criminal Justice (Mental Impairment) Act 1999 s 21: 4.80 Education Act 1994 s 82A: 10.135 Evidence Act 2001: 14.230 s 138(3): 2.150 s 141: 2.160 s 194M: 11.180 Forensic Procedures Act 2000: 2.245 HIV/AIDS Preventive Measures Act 1993 s 39: 14.20 Human Tissue Act 1985 s 27A: 9.35 Misuse of Drugs Act 2001: 14.150 s 3: 14.155 s 12(1): 14.150 s 12(2): 14.155 s 24: 14.95, 14.145 s 24(a): 14.150 s 25: 14.95 s 26: 14.95 s 29: 14.55 Sch 1, Pt 2: 14.150 Poisons Act 1971 s 83A(1): 14.20 Police Offences Act 1935 s 6: 15.205 s 34B: 13.85 s 34B(1): 10.70 s 38A: 12.195 Sentencing Act 1997 s 3: 1.55 Terrorism (Commonwealth Powers) Act 2002 s 4(1)(a): 15.175 s 4(1)(b): 15.175 Terrorism (Preventative Detention) Act 2005: 15.150 lxv

Principles of Criminal Law

s 36: 11.50, 11.155 s 36(1): 11.85 s 36(2): 11.30 s 36(2)(b): 11.110 s 36(2)(g): 11.200 ss 36(2)(h) to (k): 11.115 s 36(2)(l): 11.95 s 36A: 11.85, 11.150 s 37(C): 11.45 s 37AA: 11.150 s 38: 11.35, 11.145 s 38(1): 11.160 s 39(1)(a)(iii): 11.165 s 39(a)(iv): 11.165 s 45: 11.115 s 48A: 11.120 s 49B: 11.190 s 49C: 11.190 s 49D(1): 11.210 s 49E: 11.210 s 49F: 11.210 s 49G: 11.210 s 49I: 11.210 s 50C: 11.190 s 50D: 11.190 s 50E: 11.190 s 50F: 11.190 s 50G: 11.190 s 50H: 11.190 s 50I: 11.190 s 51G(1): 11.245 s 51G(3): 11.245 s 51H(1): 11.245 s 51I: 11.245 ss 51J(a) to (b): 11.245 s 51L: 11.245 s 51L(2): 11.245 s 51M: 11.245 s 51N: 11.245 s 51P: 11.245 s 52B: 11.200 s 52C: 11.200, 11.210 s 52D: 11.200, 11.210 s 52E: 11.200, 11.210 s 55: 10.185 s 56: 10.185 s 63: 10.185 s 63A: 10.185 s 65: 9.215 s 66: 6.165 s 67: 9.255 s 70(2): 15.225 s 70A: 15.15 s 71: 12.125 s 71(2): 12.150 ss 71 to 93: 12.40 s 72: 12.40 s 72(1): 12.15 s 73: 12.15, 12.205 s 73(2): 12.45 s 73(2)(a): 3.330 s 73(3): 12.45 s 73(4): 12.20, 12.85, 12.110 s 73(5): 12.110 s 73(6): 12.125 s 73(8): 12.165, 12.170 s 73(9): 12.165, 12.175

Youth Justice Act 1997: 1.95

VICTORIA Abortion Law Reform Act 2008: 9.210 Charter of Human Rights and Responsibilities Act 2006 : 2.150, 2.170, 9.60, 11.10, 13.25, 13.90, 15.275 s 8: 2.200 s 13: 2.245 s 19: 13.25 s 25(1): 2.160, 2.170 Children and Young Persons (Further Amendment) Act 1993: 11.195 Children, Youth and Families Act 2005 s 344: 3.15 Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 s 23(1): 11.235 s 56: 11.235 s 57: 11.235, 11.245 s 57(1): 11.235 s 58: 11.235, 11.245 Confiscation Act 1997: 14.180, 14.195 Crimes Act 1958: 2.110, 6.80, 6.120, 7.20, 8.85, 8.175, 9.20, 9.45, 9.130, 9.185, 9.250, 10.75, 11.95, 11.150, 11.155, 11.190, 11.200, 11.210, 12.15, 12.245 s 2A(1): 8.180 s 3A: 9.20, 9.130 s 3B: 5.10 s 4A: 9.145 s 5: 5.155 s 5A: 9.250 s 6: 5.140 s 6(1): 5.125, 5.130 s 6A: 9.200 s 6B(1): 9.205 s 6B(2): 9.45, 9.200 s 6B(2)(a): 9.200 s 6B(4): 9.205 s 9AD: 6.65 s 15: 9.30, 9.235, 10.80, 10.90 ss 15 to 18: 10.190 s 16: 9.30, 10.75, 10.80, 10.100 s 17: 9.30, 10.75, 10.80, 10.100 s 18: 10.75, 10.80, 10.100, 10.190 s 19: 10.180 s 19A: 10.90 s 20: 10.170 s 21: 10.170 s 21A: 10.175 s 21A(3): 10.175 s 22: 10.180 s 23: 10.180 s 24: 9.30, 10.75, 10.80, 10.100 s 25: 10.180 s 26: 10.180 s 31(1)(a): 10.65 s 31(1)(b): 10.70 s 31(1)(c): 10.65 ss 32 to 34A: 10.105 s 35(1): 11.40, 11.45, 11.120 lxvi

Table of Statutes

Crimes Act 1958 — cont s 73(10): 12.190 s 73(12): 12.225 s 73(14): 12.95, 12.200 s 74: 12.15 s 75(1): 12.235 s 75A: 12.235 s 76: 12.240 s 80A: 2.60, 2.65 s 81: 12.10 s 81(4): 12.105, 12.275, 15.250 s 82: 12.135, 12.280 s 86(2): 12.135 s 88: 12.245 s 88A: 12.245 s 88A(b): 12.245 s 91(3): 12.240 s 181: 7.10, 7.20 s 196(1): 15.250 s 247A(4): 3.125 ss 247A to 247I: 15.240 s 247B: 15.265 s 247C: 15.265 s 247D: 15.265 s 247E: 15.265 s 247F: 15.265 s 247G: 15.265 s 247H: 15.265 s 247J(3): 3.125 s 251: 13.15 ss 253 to 255: 3.60 s 317: 10.180 s 318: 9.185 s 318(2A): 9.185 s 319: 9.185 s 320: 10.15 s 321(2): 8.150 s 321(3): 8.215 s 321(4): 8.85 s 321B: 8.120 s 321F(1): 8.135, 8.145 s 321F(2): 8.140 s 321F(3): 8.170, 8.175 s 321F(4): 8.85 s 321G(1): 8.175, 8.180 s 321G(2): 8.185 s 321G(3): 8.220 ss 321G to 321I: 8.175 s 321H: 8.175 s 321I: 8.175 s 321M: 8.30 s 321N: 8.30 s 321N(1): 8.35, 8.55 s 321N(2): 8.75 s 321N(2)(b): 8.75 s 321N(3): 8.205 s 321P: 1.55 s 322B(1): 2.100 s 322K: 4.210, 6.15 s 322K(2): 6.45 s 322K(2)(a): 6.50 s 322K(3): 6.20, 6.25 s 322L: 6.35 s 322M: 6.30 s 322M(1)(b): 6.55 s 322O: 6.70, 6.80, 6.100 s 322O(2): 6.90, 6.95

s 322O(2)(a)(ii): 6.85, 6.110 s 322O(3): 6.70, 6.105 s 322O(4): 6.70 s 321(1): 8.85 s 321C: 8.85 s 321F(2): 8.85 s 322R: 6.140, 6.175 s 322R(2): 6.160 s 322R(3): 6.165 s 323: 7.10, 7.20, 7.100 s 323(1): 7.140 s 323(1)(d): 7.120, 7.135 s 324: 7.20, 7.100 s 324(2): 7.90 s 324A: 7.185 s 324C: 7.05, 7.140 s 325: 7.20 s 325(1): 7.155, 7.170, 7.175, 7.180 s 336: 6.120, 6.125 s 336(1): 6.120 s 336(2): 6.125, 6.130 s 336(3): 6.125, 6.130 s 336(4): 6.130 s 336(5): 6.135 s 339(1): 8.110 s 463B: 9.200 s 464: 2.245 Crimes Amendment (Abolition of Defensive Homicide) Act 2014 s 6: 7.05 Crimes Amendment (Child Homicide) Act 2008: 9.250 Crimes Amendment (Gross Violence Offences) Act 2013 s 3(c): 10.80 Crimes Amendment (Repeal of Section 19A) Act 2015: 10.90 Crimes Amendment (Sexual Offences) Act 2016: 11.155, 11.190, 11.210 Crimes Amendment (Sexual Offences and Other Matters) Act 2014: 11.155 s 38(1)(c): 11.155 Crimes (Controlled Operations) Act 2004: 14.220 Crimes (HIV) Act 1993: 10.90 Crimes (Homicide) Act 2005: 4.210, 5.10, 5.155 s 3: 5.10 Crimes (Married Person’s Liability) Act 1977: 6.120 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: 4.20 s 20: 4.20, 4.25 s 20(1)(a): 4.20 s 20(1)(b): 4.20, 4.60 s 21: 4.145 s 21(1): 3.10, 4.70 s 21(2)(b): 4.70 s 21(3): 4.70, 4.140 s 22(1): 4.70, 4.145 s 23: 4.80 Crimes (Property Damage and Computer Offences) Act 2003: 15.240 lxvii

Principles of Criminal Law

Repealed by Crimes Amendment (Abolition of Defensive Homicide) Act 2014 s 3(3): 6.65

Crimes (Rape) Act 1991: 11.95 s 1: 11.60, 11.125 Crimes (Sexual Offences) Act 1991 s 36: 11.120

Road Rules r 21: 3.270

Crimes (Sexual Offences) Amendment Act 2016: 11.115

Road Safety (Traffic) Regulations 1988 cl 1001(1)(c): 3.270

Crimes (Theft) Act 1973: 12.05 s 2(1)(b): 12.10

Sentencing Act 1991 s 5(1): 1.55 Div 2(1C): 14.30

Criminal Procedure Act 2009 s 253: 2.110 Criminal Procedure Amendment (Double Jeopardy and Other Matters) Act 2011: 2.195 Drugs, Poisons and Controlled Substances Act 1981: 14.150 s 4: 14.155 s 5: 2.170 s 71: 14.150 s 71A: 14.150 s 71B: 14.155 s 71AA: 14.150 s 71AC: 14.95, 14.150 s 73: 14.95 s 73(1)(b): 14.150 s 73(2): 14.155 s 75: 14.145 s 80(5): 14.20 Education and Training Reform Regulations 2007 r 14: 10.135 Environment Protection Act 1970 s 39(1): 3.270 s 66B(4B)(c): 3.310 Evidence Act 2008: 14.230 s 138(3): 2.150 s 141: 2.160 Human Tissue Act 1982 s 41: 9.35 Infringements Act 2006 s 8: 1.150 Interpretation of Legislation Act 1984 s 38: 3.35 Jury Directions Act 2015: 11.155 s 46(3)(c)(i): 11.50 s 46(3)(c)(ii): 11.50 s 47(3): 11.150 s 52: 11.180 Medical Treatment Act 1988: 9.45, 9.95 s 5: 9.95 s 5B: 9.95 Occupational Health and Safety Act 1985: 3.40 Poisons (Drugs of Addiction) Act 1976 s 6: 14.150 Racial and Religious Tolerance Act 2001 s 7: 15.225 s 24: 15.225

Sentencing (Amendment) Act 2002 s 5: 14.30 Serious Sex Offenders (Detention and Supervision Act) 2009: 1.85 Sports Anti-Doping Act 2005: 14.110 Summary Offences Act 1966: 11.205 s 6: 13.100 s 6(5): 13.105 s 26C: 11.205 s 40: 11.205 s 41C: 11.205 s 41D: 11.205 s 41D(2)(a): 11.205 s 41H: 11.135 s 41DA: 11.205 s 41DA(3): 11.205 s 49F: 15.205 s 52: 13.85 Terrorism (Commonwealth Powers) Act 2002 s 4(1)(a): 15.175 s 4(1)(b): 15.175 Terrorism (Community Protection) (Amendment) Act 2006: 15.150 Unlawful Assemblies and Processions Act 1958 s 5: 13.235 ss 11 to 12: 13.235

WESTERN AUSTRALIA Acts Amendment (Abortion) Act 1998: 9.215, 9.220 Censorship Act 1996 s 58: 11.245 Children and Community Services Amendment (Reporting Sexual Abuse of Children) Act 2008: 11.195 Corruption, Crime and Misconduct Act 2003: 14.220 Criminal Code: 3.190, 4.20, 5.30, 6.120, 7.20, 8.85, 8.175, 9.20, 9.30, 9.45, 9.130, 10.75, 11.190, 12.15, 12.135, 12.185, 15.70 s 1: 3.35, 4.20, 4.35, 4.40, 6.80, 8.175, 8.180, 10.80, 12.135 s 1(1): 9.120, 10.90 s 1(4): 10.80, 10.90 s 3: 2.100 s 4: 8.30, 8.35, 8.40, 8.55, 8.60, 8.75, 8.205 s 7: 7.10, 7.20 s 7(b): 7.20, 7.50 lxviii

Table of Statutes

s 266: 9.165, 9.170 s 268: 9.20, 9.140 s 269: 9.30 s 270: 9.20 s 277: 9.20, 9.200 s 279: 9.20, 15.70 s 279(1)(a): 9.20, 9.115 s 279(1)(b): 9.20, 9.120 s 279(1)(c): 9.20, 9.130 s 280: 9.135, 9.160 s 281: 9.145 s 283: 8.15, 10.65 s 288: 9.45, 9.200 s 290: 9.30, 9.235, 9.240, 9.245 s 291: 9.255 s 293: 10.180 s 294: 10.75, 10.80, 10.100 s 294(1)(c): 10.180 s 294(1)(h): 10.90 s 294(8): 10.90 s 297: 10.75, 10.80, 10.100 s 301: 10.80 s 304: 10.75, 10.80 s 305: 10.180 s 305A: 11.135 s 306: 10.105 s 313: 10.15 s 317: 10.75 s 317A: 10.65 s 317A(c): 10.65 s 318(1)(d): 10.70 s 318(1)(e): 10.70 s 318A: 10.70 s 319: 11.110, 11.190 s 319(1): 11.40 s 319(2)(a): 11.85 s 319(2)(b): 11.50, 11.95 s 320: 11.210 s 321: 11.210 s 321(2): 11.190 s 322: 11.190, 11.210 s 323: 11.210 s 324: 11.210 s 325: 11.35, 11.40, 11.145 s 329: 11.190, 11.210 s 330: 11.200, 11.210 s 332: 10.185 s 333: 10.185 s 338: 10.170 s 338B: 10.170 s 338D: 10.175 s 338E: 10.175 s 343: 10.185 s 344: 10.180 s 370: 12.15 s 371: 12.20 s 371(1): 12.15 s 371(2): 12.15, 12.35 s 371A: 12.95, 12.200 s 373: 12.165 ss 378(6) to (9): 12.20 s 390: 12.145 s 392: 12.235 s 401: 2.230, 12.240 s 407: 12.240 s 409: 8.140, 12.260, 12.270 s 411: 12.25

Criminal Code — cont s 7(c): 7.20 s 7(d): 7.20 s 8(1): 7.120, 7.135 s 8(2): 7.90 s 10: 7.20, 7.155, 7.170, 7.175 s 12: 2.65 s 22: 3.325, 3.330 s 23: 4.90, 10.55, 10.100 s 23A: 3.105, 4.85 s 23A(2): 4.170 s 23B: 3.105 s 24: 3.275, 3.285, 3.350, 6.170 s 25: 6.140, 6.170, 6.175 s 25(3): 6.160 s 26: 3.10, 4.70 s 27: 4.20 s 27(1): 4.20 s 28: 4.200, 4.215 s 28(2): 4.200 s 28(3): 4.155, 4.180 s 29: 3.15, 3.25, 9.185 s 32: 6.70, 6.80, 6.100, 6.120 s 32(1): 6.70 s 32(2): 6.90, 6.95 s 32(2)(a)(iii): 6.85, 6.110 s 32(3): 6.70, 6.105 ss 44 to 46: 15.215 s 52: 15.215 s 62(4): 13.235 s 71: 13.215 s 77: 15.225 s 78: 15.225 s 80A: 15.225 s 80B: 15.225 s 80H: 15.225 s 135: 8.145 s 172: 13.85 s 192(1)(b): 11.115 s 192(2): 11.115 s 199: 9.215, 9.220 s 199(2): 9.215 s 203: 11.210 s 204: 11.210 s 214: 11.210 s 222: 10.20, 10.25, 10.30, 10.35, 10.40, 10.50, 10.140 s 231: 10.120 s 233: 10.120 s 244: 6.05 s 245: 5.30, 10.130 ss 245 to 246: 5.10 s 246: 10.130 s 248: 6.15, 10.120 s 248(3): 6.55 s 248(4): 6.45 s 248(4)(a): 6.20, 6.30, 6.50 s 248(4)(c): 4.210 s 248(5): 6.35 ss 251 to 256: 6.25 s 257: 10.135 s 259: 6.150, 6.180, 9.225, 10.155 s 260: 6.55 s 262: 3.85, 9.165, 9.190, 10.180 s 263: 9.190 s 265: 10.180 ss 265 to 266: 9.190 lxix

Principles of Criminal Law

s 11: 14.155 s 34(1)(a): 14.150 s 34(1)(e): 14.150

Criminal Code — cont s 414: 12.245 s 440A: 15.265 s 552: 8.30 s 553: 8.175 s 555A(1): 8.30 s 555A(2): 8.175 s 556: 8.175 s 557: 10.180 s 557K(4): 15.205 s 558: 8.85 s 560: 8.85 s 562: 7.155 s 586(1): 12.140

Poisons Act 1964 s 36A: 14.20 Police Act 1892 s 54: 13.180 s 59: 13.180 s 138: 13.185 Restraining Orders Act 1997 s 62A: 13.45 Road Traffic Act 1974: 9.185 s 59: 9.185

Criminal Code Amendment Act (No 2) 1987 s 6: 8.110

Sentencing Act 1995: 2.220

Criminal Code Amendment (Identity Crime) Act 2010: 12.135

Sports Drug Testing Act 2001: 14.110

Criminal Code Compilation Act 1913: 2.20 s 319(1)(a)(ii): 11.165 s 326(1): 11.165

Terrorism (Commonwealth Powers) Act 2002 s 4(1)(a): 15.175 s 4(1)(b): 15.175

Criminal Investigation Act 2006 s 27: 13.100 s 28(2)(b): 13.100 s 28(3): 13.100 s 38C(2): 13.70, 13.85

Terrorism (Preventative Detention) Act 2005: 15.150 Young Offenders Act 1994: 1.95

CANADA

Criminal Investigation (Identifying People) Regulations 2002: 2.245

Charter of Rights and Freedoms: 9.130, 10.135, 14.125 s 7: 2.165, 9.60 s 15: 11.150

Criminal Law Amendment Act (No 2) 1992: 10.90 Criminal Law Amendment (Home Burglary and Other Offences) Act 2015: 12.240

Constitution Act 1982: 2.165 Criminal Code: 9.130, 11.120 s 33.1: 4.225 s 43: 10.135 s 83.19: 8.30 s 83.19(2): 8.30 s 265(4): 11.150 s 273.2: 11.150 s 283: 12.145 ss 467.11 to 467.13: 15.280 cl 4(6): 7.75

Criminal Law Amendment (Homicide) Act 2008: 4.210, 5.10, 9.145 s 12: 5.10 Criminal Law (Mentally Impaired Accused) Act 1996 s 22: 4.80 Pt 3: 4.35 Criminal Property Confiscation Act 2000: 14.180, 14.195 Dangerous Sexual Offenders Act 2006: 1.85

Protecting Canadians from Online Crime Act 2014 s 162.1: 11.205

Evidence Act 1906 s 36BC: 11.180 Fish Resources Management Regulations 1995 s 34: 3.350 reg 34: 3.350

GERMANY

Health Act 1911: 9.215, 9.220 s 334: 9.215, 9.220, 9.225

Grundgesetz Art 1: 11.10 Art 1(1): 11.10

Interpretation Act 1984 s 5: 3.35 s 13C: 9.35 s 69(1): 3.35

NEW ZEALAND

Aviation Security Act: 6.185

Harmful Digital Communications Act 2015 s 41: 11.205

Misuse of Drugs Act 1981: 14.150 s 6(1): 14.150, 14.155 s 6(1)(c): 14.95 s 6(2): 14.95, 14.150 s 8E: 1.160

International Criminal Court Act 2000: 15.50 Privacy Act 1993 s 56(1): 11.205 lxx

Table of Statutes

Human Rights Act 1998: 1.230, 2.135, 2.150, 2.165, 9.60, 11.105, 13.25, 14.125 s 4: 2.150

UNITED KINGDOM AND IMPERIAL Accessories and Abettors Act 1861: 7.10, 7.25 s 8: 7.25 Aliens Order Act 1920: 7.45

Infanticide Act 1922: 5.05, 5.125 s 1(1): 5.125

An Act for the Abolition of the Slave Trade 1807: 15.95

Infanticide Act 1938: 5.125

An Act to Prevent the Destroying and Murthering of Bastard Children: 5.125

Justices of the Peace Act 1361: 13.20 Larceny Act 1916: 12.35, 12.175

Anti-terrorism, Crime and Security Act 2001: 15.165

Lord Ellenborough’s Act: 5.125

Children Act 2004 s 58: 10.135

Mental Deficiency Act 1913: 14.80

Commonwealth of Australia Constitution Act 1900 s 51(xxix): 15.10 s 51(vi): 15.150 Ch III: 15.150

Misuse of Drugs Act 1971: 2.165, 8.215

Computer Misuse Act 1990: 15.255

Offences Against the Person Act 1828 s XIV: 5.125

Obscene Publications Act 1959: 11.235 Obscene Publications Act 1964: 11.235

Corporate Manslaughter and Corporate Homicide Act 2007: 9.15 s 1(1): 9.15 s 1(3): 9.15

Offences Against the Person Act 1861: 8.115, 10.05, 10.80 s 60: 5.125

Crime and Disorder Act 1998 s 1: 13.25 s 34: 3.25

Pacific Islanders Protection Act 1872: 3.335 Prohibition of Female Genital Mutilation (Scotland) Act 2005: 10.105

Criminal Attempts Act 1981: 8.205 s 1(1): 8.55 s 1(2): 8.205

Public Order Act 1936 s 5: 12.50, 13.75, 13.165 Public Order Act 1986: 13.215, 13.220, 13.235 s 3: 13.215 s 5: 13.180 s 18: 13.80 s 38: 13.15

Criminal Damage Act 1971: 3.345 Criminal Justice Act 1972 s 36(1): 3.190 Criminal Justice Act 2003: 2.195 Criminal Justice and Courts Act 2015: 11.10 s 33: 11.10, 11.205

Regulation of Investigatory Powers Act 2000: 14.220

Criminal Justice and Immigration Act 2008 s 63: 11.20

Riot Act 1715: 13.230, 13.235

Riot Act 1714: 13.235

Scottish Sexual Offences Act 2009: 11.125

Criminal Justice and Public Order Act 1994: 13.135 s 63: 13.135 ss 64 to 65: 13.135

Serious Crime Act 2007 ss 44 to 46: 7.25 s 50: 7.115 s 56(1)(a): 7.115 s 59: 7.115 Pt 2: 7.05, 7.50, 7.115

Criminal Law Act 1977: 8.130, 8.135 s 1: 8.150 s 5(8): 8.120 Pt I: 8.130

Sexual Offences Act 1956 s 1(1): 8.180

Criminal Law Amendment Act 1885 s 4: 11.100, 11.115

Sexual Offences Act 2003: 2.165, 11.85, 11.110, 11.150 s 1: 11.40, 11.150 s 1(1)(c): 11.150 s 2: 11.40, 11.125 s 75: 11.105, 11.150 s 75(2): 11.110 s 75(2)(f): 11.130 s 76: 11.105 s 76(2)(b): 11.115

Female Genital Mutilation Act 2003: 10.105 s 1(1): 10.105 s 1(2): 10.105 s 2: 10.105 s 3: 10.105 s 4: 10.105 Finance Act 2000: 12.25 Homicide Act 1957 s 1(2): 9.130 s 2: 5.80

Slave Trade Act 1824: 15.95 lxxi

Principles of Criminal Law

Art 3: 10.135, 15.130 Art 5: 13.25 Art 6: 2.80, 2.130, 2.135, 3.15, 14.200, 14.225, 14.230 Art 6(2): 2.165 Art 7(1): 11.65 Art 8: 2.250, 9.60, 15.150 Art 9: 13.25 Art 10: 11.235, 13.90 Art 11: 13.90

Slave Trade Act 1843: 15.95 Slave Trade Act 1873: 15.95 Street Offences Act 1959: 8.135 Terrorism Act 2000: 15.165, 15.180, 15.190 s 1: 15.180 s 44: 15.150 Terrorism Act 2006 s 1: 15.215

Geneva Convention: 14.160 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field: 15.50 Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea: 15.50 Convention (III) relative to the Treatment of Prisoners of War; Convention (IV) relative to the Protection of Civilian Persons in Time of War: 15.50

Theft Act 1968: 2.25, 12.05, 12.40, 12.45, 12.50, 12.100, 12.110, 12.145, 12.165, 12.175, 12.190, 12.195, 12.205, 12.210, 12.240, 12.245, 12.275 s 1(1): 12.40, 12.50 s 2(1): 12.45 s 2(2): 12.45 s 3: 12.195 s 3(1): 12.85 s 4(1): 12.145 s 5(3): 12.175 s 5(4): 12.190 s 15(2): 8.50 s 15A: 12.135 s 16(1): 12.285 s 24(3): 8.205

Hague Convention on the Civil Aspects of International Child Abduction: 10.185 Organisation for Economic Co-operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions: 15.15

Theft Act 1978 s 3: 12.195 Trade Descriptions Act 1968: 3.50

Rome Statute of the International Criminal Court (International Criminal Court Statute, Rome Statute, ICC Statute): 15.90 Art 5: 15.15, 15.45, 15.135 Art 5(2): 15.15 Art 6: 15.50, 15.110, 15.135 Art 6(a): 15.110 Art 6(b): 15.110 Art 6(c): 15.110 Art 7: 15.50, 15.100 Art 7(1): 15.80 Art 7(1)(g): 15.100 Art 7(1)(g)-1: 15.100 Art 7(2): 15.80 Art 7(2)(c): 15.95 Art 8: 15.50 Art 8(2)(a): 15.70 Art 8(2)(b): 15.60, 15.75 Art 8(2)(c): 15.75 Art 8(2)(e): 15.75 Art 12: 15.45 Art 13: 15.45 Art 15: 15.135 Art 16: 15.45 Art 17: 15.50 Art 17(1): 15.45 Art 25(3)(e): 15.110 Art 28: 15.50 Art 30: 15.100

Youth Justice and Criminal Evidence Act 1999 s 43: 2.135

UNITED STATES Foreign Corrupt Practices Act of 1977 (15 USC § 78dd-1, et seq) : 12.305 Harrison Narcotics Tax Act 1914: 14.80 Criminal Conduct Act 1974 (Michigan) ss 520b(1)(f)(i) to (iv): 11.55 Model Penal Code: 3.210 Pennsylvania Abortion Control Act 1989: 9.215

TREATIES AND CONVENTIONS Convention for the Prevention and Punishment of Terrorism: 15.165 Convention on Cybercrime (Budapest Convention on Cybercrime): 15.15, 15.240, 15.255, 15.265 Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (Strasbourg Convention or SETS 141): 14.195 Convention to Suppress the Slave Trade and Slavery (1926 Slavery Convention) Art 1: 15.95

United Nations Convention Against Corruption (UNCAC): 15.15

European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention for Human Rights, ECHR: 2.135, 11.15, 13.90, 14.200

United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances: 14.150, 14.175, 14.180, 14.195 Art 2(5): 14.160

lxxii

Table of Statutes

United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances — cont Art 3(1)(c)(i): 14.175 Art 3(1)(c)(ii): 14.175 Art 3(2): 14.160 Art 3(3): 14.180 Art 4: 14.205 Art 5: 14.195 Art 5(3): 14.180 Art 5(4): 14.180 Art 5(3): 14.185 United Nations Convention against Transnational Organized Crime: 14.180, 14.195, 15.10, 15.15, 15.115, 15.210 Art 3: 15.10 Art 5(1): 15.10 Art 6(1)(a)(i): 14.180 Art 6(2)(f): 14.180 Art 13: 14.180 United Nations Convention agains Transnational Organized Crime: Protocol to Prevent, Suppress and Punish Trafficking in Persons (Trafficking Protocol, UN TIP Protocol): 15.115 United Nations Convention against Torture (Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment): 15.40 Art 27(1): 15.40 Preamble : 11.10 United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW): 2.205, 11.30 Preamble : 11.10 United Nations Convention on the Elimination of All Forms of Racial Discrimination (CERD): 13.80, 15.225 Art 4(a): 13.80 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention): 15.50, 15.105 United Nations Convention on the Rights of the Child: 10.135 Art 1: 11.245 Art 19(1): 10.135 Art 24(3): 10.105 Art 34: 11.245 United Nations Declaration on the Elimination of Violence Against Women: 2.205 Art 4: 2.205 Art 4(j): 2.205 United Nations International Drug Control Program (UNDCP): 14.180

United Nations International Covenant on Civil and Political Rights (ICCPR): 2.130, 2.200, 11.30, 13.25, 15.225 s 17(1): 2.245 Art 2(2): 2.130 Art 3: 2.200 Art 6(2): 11.65 Art 7: 2.140, 2.225 Art 9: 15.135 Art 9(1): 15.130 Art 10: 11.10 Art 10(3): 1.80 Art 14: 2.145, 14.230 Art 14(2): 2.145, 2.160, 2.165 Art 14(3): 2.145 Art 14(3)(d): 2.145 Art 14(3)(g): 15.130 Art 14(7): 2.145, 2.195 Art 15: 2.150, 15.130 Art 15(1): 11.65, 15.130 Art 17: 2.245, 2.250, 13.35 Art 18: 2.205 Art 19: 11.235, 13.90, 13.145, 13.150, 15.130 Art 20: 13.80 Art 20(2): 13.80, 15.225 Art 21: 13.90, 13.145, 13.150 Art 22: 13.90, 13.145, 13.150, 15.130 Art 24: 15.130 Art 26: 2.200, 15.130 Art 27: 2.205, 2.225 Preamble : 11.10 United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR) Art 13: 11.10 Preamble Preamble: 11.10 United Nations International Convention for the Suppression of the Financing of Terrorism: 14.195 United Nations Single Convention on Narcotic Drugs: 14.160 Art 36(1): 14.160 Sch IV: 14.160 United Nations Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: 15.95, 15.120 United Nations Universal Declaration of Human Rights (UNHR) Art 1: 11.10 Art 3: 15.135 Art 7: 2.200 Art 11(2): 11.65 Art 19: 13.90 Art 20: 13.90 Art 23: 11.10 Art 24: 11.10 Preamble : 11.10

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PART I

THEORY AND PRINCIPLES Chapter 1: Theory and the Criminal Law ........................................................ .. 3 Chapter 2: General Principles ............................................................................ 79 Chapter 3: Principles of Criminal Responsibility .......................................... 177

Chapter 1

Theory and the Criminal Law Theories are nets to catch the world, to rationalise, to explain and to master it. 1 Theory is here and law/doctrine is there. Students all too often fall into the gap between the two. 2 [1.05] [1.10]

WHAT IS THEORY? AND WHO REALLY CARES? ................................................................................ 3 Mapping the Theoretical Terrain .................................................................................................... 4

[1.20] [1.20] [1.30] [1.35] [1.40] [1.45] [1.105] [1.120] [1.185]

CONSTRUCTING THE CRIMINAL LAW ............................................................................................ 6 Defining Crime and the Rule of Law ............................................................................................... 6 Legal Positivism and a Concept of Criminal Law ........................................................................... 11 Reinstating History and Procedure ................................................................................................ 14 Beyond Legal Positivism ............................................................................................................... 15 The Relationship Between Crime and Punishment ........................................................................ 17 Criminology and the Criminal Law ............................................................................................... 32 Theories of Criminal Justice .......................................................................................................... 40 Towards Critical Synthesis: A Theory of Criminalisation ................................................................. 54

[1.190] [1.200] [1.205] [1.220] [1.235] [1.245] [1.250]

RECONSTRUCTING THE CRIMINAL LAW ...................................................................................... Preventing Harm .......................................................................................................................... Preserving Morality ...................................................................................................................... Promoting the Public Interest and Community Welfare ................................................................ Social Freedom and Republican Theories of Criminal Justice ......................................................... Regulatory Theories of Criminal Justice ......................................................................................... CONCLUSION: INTEGRATING CRIMINAL LAW AND THEORY .......................................................

57 58 60 66 70 75 76

WHAT IS THEORY? AND WHO REALLY CARES? [1.05] Michael King defines theory as the “many general principles or set of principles

formulated to explain the events in the world or relation between such events”. 3 The test of the validity of such general principles is not whether they are accepted by police or lawyers “but the extent to which they offer useful insights into the operation of the criminal justice system”. 4 This positive view that theory expands the boundaries of legal knowledge is 1 2 3 4

K Popper, The Logic of Scientific Discovery (London: Hutchinson, 1959) p 59. G Simpson, “On the Magic Mountain: Teaching Public International Law” (1999) 10 European Journal of International Law 70 at 80. M King, Framework of Criminal Justice (London: Croom Helm, 1981) p 8. M King, Framework of Criminal Justice (London: Croom Helm, 1981) p 9.

[1.05]

3

Part I: Theory and Principles

countered by cynicism that theory adds little value to our understanding of the criminal law as teachers, students and practitioners. Theoretical debate often seems divorced from the real world, raising legitimate questions about its relevance (if any) to the study and practice of criminal law. Beyond the introductory lecture, theory is usually left to be pursued furtively in further reading and footnotes. This chapter sets out to explore the role and value of theory in understanding the function, structure and processes of the criminal law. It may be viewed as an essay on the role and value of theory in constructing and reconstructing the criminal law.

Mapping the Theoretical Terrain [1.10] Legal analysis is often represented as a process of “mapping” the divisions and

boundaries of law. As Lindsay Farmer noted, the criminal law is concerned not only with geographical space or territory, but also with the metaphysical space in which the law is imagined and represented. 5 In Farmer’s view, legal scholarship may be regarded as a form of legal cartography: “Just as maps recreate space by the use of imaginary or scientific devices, the law, in the form of doctrine or academic treatises, must be capable of representing itself. Legal doctrine is a guide, not to the geographical territory, but to the territory of the law, to the imaginary space that the law occupies. From their earliest days law students are taught that to venture into this territory without a map is foolhardy. It is vast and ancient, full of unseen dangers. It is possessed of a strange and wonderful beauty that cannot be perceived by the untrained eye. The law as it is taught and written is always an attempt to impose an order on this unruly country by marking out the ‘greater divisions and principal cities’. It is always the result of a process of selection, and the symbolic order that is constructed mirrors, or more precisely refracts, the legal ordering of space.” 6

This process of mapping can be productive, exposing the underlying contradictions within the substantive law and providing a guide for reform. It may also be repressive, concealing and suppressing the range of issues considered appropriate for “legitimate” legal consideration. 7 As we shall see below, the theory of legal positivism, the concept of law as an autonomous body of legal rules distinct from morality, sociology or politics, has been criticised for excluding other perspectives, such as ethnicity, gender and power, from legal analysis. Theorists claim that their ideas about the law provide the legal community with guides or blueprints for constructing and reconstructing the law. Yet is this really so? The criminal law has certainly provided the doctrinal gist for much thinking and re-thinking about the nature and purpose of law. Until relatively recently, the bulk of this theorising has been concerned with determining the legitimate conditions, in both moral and political terms, of criminal liability and punishment. A leading American legal scholar, George Fletcher, went so far as to claim that the criminal law itself is a “species of moral and political philosophy”. 8 As a consequence, much theoretical debate has been concerned with exploring the conditions under which individuals should be held morally and legally responsible for their conduct. In most textbooks, theoretical engagement is focused on the “principles of responsibility” in general 5 6 7

8

L Farmer, Criminal Law, Tradition and Legal Order (Cambridge: Cambridge University Press, 1997). L Farmer, Criminal Law, Tradition and Legal Order (Cambridge: Cambridge University Press, 1997) pp 2–3. Desmond Manderson in “Beyond the Provincial: Space, Aesthetics, and Modernist Legal Theory” suggests that legal theory more generally may be viewed as a form of legal cartography: (1996) 20(4) Melbourne University Law Review 1048. Manderson argues against such geographic reification of law in terms of provinces, empires, and territory, proposing instead that law should be understood not in spatial terms, but as an aesthetic enterprise—as a process of signification. Rather than suppress complexity and diversity, the aesthetic approach values pluralism. He characterises this approach as “critical pluralism” (at 1069). The repressive aspects of analytical jurisprudence are explored in V Kerruish, Jurisprudence as Ideology (London and New York: Routledge, 1991). G Fletcher, Rethinking Criminal Law (Oxford: Oxford University Press, 2000) p xix.

4 [1.10]

Theory and the Criminal Law

Ch 1

terms, at the expense of critical examination of the aims and limits of the criminalisation in specific contexts. As Peter Alldridge has observed: “There are other problems in the criminal law than those to do with attribution of responsibility … They too can generate important problems requiring contributions from philosophical and other extradoctrinal sources. So long as the crimes under consideration are homicide and assaults there is little controversy as to what the law should require people to do (not kill or hit one another) but there are many areas where it is precisely that question which requires attention. Whatever the standpoint, it is important to realise that ’general principles’ are not the full extent of theorising about criminal law.” 9

From the perspective of criminal law as moral philosophy, criminal law doctrine appears to be a spectacular failure. Textbooks often seem to be a litany of complaints about the failure of the courts and legislatures to uphold “fundamental” principles, such as the presumption of innocence or mens rea (understood as a subjective mental state). These traditional accounts proceed with little or no appreciation of the social, political, historical or practical context within which the criminal law has developed and currently operates. Legal scholarship seems preoccupied with the search for universal principles of responsibility applicable to all crimes, and has been characterised fundamentally as a “rationalising enterprise”. 10 At the same time, there is an increasingly pervasive “critical” consciousness that an alternative basis for the study of the criminal law is necessary, one which seriously engages with the external disciplinary perspectives offered by sociology, psychology, feminism, human rights, legal history and so on. 11 Most significantly, criminal law scholars are increasingly disputing the traditional disciplinary segregation of criminal law from criminal justice studies and criminology. By exploring the nature and purpose of the criminal process, critical scholars have exposed the ideology and contradictions within the concept of “criminal justice”. Drawing on such broader insights, a holistic approach may be developed that conceives the criminal law as merely one component of a larger legal apparatus involved in the detection, prosecution and punishment of offenders. In this chapter, we describe, evaluate and critique various theories of the criminal law and criminal justice, as well as laying the foundation for a critical pluralistic theory of the criminal law which Nicola Lacey called “criminalization”. 12

Types of theory [1.15] When thinking about the function and significance of different theories of the criminal law, a distinction is sometimes drawn between explanatory and normative models. The former explains how the criminal law works, while the latter is concerned with how it ought to work. As John Braithwaite observed: “Sound policy analysis involves a combination of explanatory and normative theory”. 13 Indeed, a simple binary classification can be misleading since explanatory analysis is invariably founded upon an implicit normative 9 10

11

12

13

P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) p 5. A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) p 9, citing M Horwitz, “The Historical Contingency of the Role of History” (1981) 90 Yale Law Journal 1057. While foreign to the common law based criminal justice systems found throughout most of the former British Empire (including the United States), this non-exclusive approach to the discipline is the norm in the civil law systems of Continental Europe: P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) pp 18–19. This theory has been developed over many years, and is summarised in its most recent form in N Lacey and L Zedner, “Legal Constructions of Crime” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (5th ed, Oxford: Oxford University Press, 2012). J Braithwaite in K Hazlehurst (ed), Crime and Justice: An Australian Textbook in Criminology (Sydney: Law Book Company, 1996) p 5. [1.15]

5

Part I: Theory and Principles

model. Reflecting this integrated approach, this chapter organises the material around the ideas of “constructing” and “reconstructing” the criminal law, an approach which traverses both explanatory and normative terrain.

CONSTRUCTING THE CRIMINAL LAW Yet law-abiding scholars write; … Law is neither wrong nor right; … Law is only crimes; … Punished by places and by times. 14

Defining Crime and the Rule of Law [1.20] The criminal law is conventionally defined as a set of legal norms for determining the

conditions under which individuals may be held liable to punishment. Glanville Williams viewed the criminal law as comprised of “crimes” which he defined as follows: “A crime (or offence) is a legal wrong that can be followed by criminal proceedings which may result in punishment.” 15

The distinction between criminal and civil wrong is critical to this type of definition. As Andrew Ashworth has noted: “One way of distinguishing criminal cases from civil is generally, and subject to exceptions and various hybrids, by reference to the procedure adopted—public prosecutor, conviction and sentence—rather than by reference to the content of the law itself.” 16

In this account, the criminal law is defined by reference to the legal norms (rules and principles) for identifying and punishing proscribed conduct, rather than by reference to the inherent wrongful quality of that conduct. Crime is simply whatever the law-makers (legislatures or courts) at a particular time have decided is punishable as a crime. As the criminal law reflects the social, political and cultural values of the period in which it developed, it has been described as a “sociopolitical artefact”. 17 While sociologists and criminologists may define crime in qualitative terms that transcend formal legal categories, such as “deviance” or “socio-cultural” transgression, 18 for the purpose of legal analysis and, more importantly, adjudication, crime is simply any conduct which is proscribed by law as being criminal and punishable accordingly. As Lord Atkin concluded in Proprietary Articles Trade Association v Attorney-General (Canada): “[T]he domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the State to be crimes, and the only common nature they will be found to possess is that they are prohibited by the State and that those who commit them are punished.” 19 14 15 16 17 18

19

WH Auden, “Law Like Love”, in AW Allison et al, The Norton Anthology of Poetry (New York: WH Norton & Company Inc, 1975) p 117. G Williams, Textbook of Criminal Law (2nd ed, London: Stevens and Sons, 1983) p 27. A Ashworth, “Is the Criminal Law a Lost Cause?” (2000) Law Quarterly Review 225 at 232. H Packer, The Limits of the Criminal Sanction (Stanford: Stanford University Press, 1968) p 364. C McCormick, D Downes and P Rock, Understanding Deviance (Oxford: Oxford University Press, 2009). Also see K Hayward and J Young, “Cultural Criminology” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (5th ed, Oxford: Oxford University Press, 2012). For a review of the varied definitions of crime, see R White, F Haines and N Asquith, Crime and Criminology (5th ed, Melbourne: Oxford University Press, 2012). [1931] AC 310 at 324.

6 [1.20]

Theory and the Criminal Law

Ch 1

Accordingly, it is the power of the State to label and punish conduct as criminal that is the defining characteristic of “crime”. Many legal norms seek to regulate conduct, but only the criminal law has the power to ascribe guilt and to impose punishment in the name of the State. Laws can proscribe conduct as “unlawful”, but without any prospect of conviction and punishment, they cannot be described as “criminal”. However, as Ashworth had to concede, the distinction between criminal and civil law is subject to “exceptions and various hybrids”. 20 Hayne J in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd, reflected on the instability of the civil/criminal law distinction, and the tendency of modern legislatures to blur these lines: “It seeks to divide the litigious world into only two parts when, in truth, that world is more complex and varied than such a classification acknowledges. There are proceedings with both civil and criminal characteristics: for example, proceedings for a civil penalty under companies and trade practices legislation. The purposes of those proceedings include purposes of deterrence, and the consequences can be large and punishing.” 21

The instability of the civil/criminal distinction thus made it unsuitable for determining which type of standard of proof—beyond reasonable doubt or balance of probabilities—should apply in any particular legal proceedings. The case is discussed further in Chapter 2, [2.185]. Unlike Ashworth’s assessment above, we do not consider hybrids to be “exceptional” in the modern criminal law. Indeed, across the Australian legal system, there are numerous examples of “civil penalties” being applied to breaches of industrial relations, environmental, consumer and corporations laws. 22 Although the civil and criminal law may have similar aims and effects, as the High Court recently observed in its 2015 Fair Work Building Industry Inspectorate decision, it is the significance of conviction, carrying the added moral stigma of guilt and shame, that set the two types of proceeding apart: “Granted, both kinds of proceeding [civil and criminal] are or may be instituted by an agent of the state in order to establish a contravention of the general law and in order to obtain the imposition of an appropriate penalty. But a criminal prosecution is aimed at securing, and may result in, a criminal conviction. By contrast, a civil penalty proceeding is precisely calculated to avoid the notion of criminality as such.” 23

While civil remedies such as injunctions or exemplary damages have coercive qualities and effects, from the viewpoint of legal classification, such judgments of legal liability are not based on determinations of guilt.

Civil and criminal regulation: blurring the boundaries? [1.25] In 2002, the Australian Law Reform Commission (ALRC) conducted a major inquiry into the use of civil and administrative penalties in the federal jurisdiction. 24 This ALRC report identified the lack of coherence and principles governing the use of such penalties. It recommended that the distinction between criminal and non-criminal (civil) penalty law and procedure should be maintained and reinforced, and that parliament should exercise caution about extending the criminal law into regulatory areas unless the conduct being proscribed clearly merited the moral and social censure and stigma attached to conduct regarded as 20

21 22 23 24

For a discussion of hybrid laws in the counter-terrorism context, see S Bronitt and S Donkin, “Australian Responses to 9/11: New World Legal Hybrids?” in A Masferrer (ed), Post 9/11 and the State of Permanent Legal Emergency: Security and Human Rights in Countering Terrorism (Dordrecht: Springer, 2012) Ch 10. (2003) 216 CLR 161 at 198 (footnotes omitted). Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 at [23]-[24]. Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 at [54]. Australian Law Reform Commission, Principled Regulation: Federal Civil and Administrative Penalties in Australia, Report No 95 (2002). [1.25]

7

Part I: Theory and Principles

criminal. 25 Although the recommended Regulatory Contraventions Statute of general application was never enacted, in 2004 the Attorney-General’s Department published a guide to assist the framing of proposed criminal offences intended to become part of Commonwealth law. The 2011 revision of A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers drew heavily upon the findings and recommendations of the ALRC. 26 As the revised Guide notes, proposals to criminalise conduct should always consider alternative options such as infringement notices, civil penalties, enforceable undertakings and administrative sanctions, which may be “as effective, or more effective, in deterring and punishing breaches of legislation”. 27 As a form of soft law, the Guide may be viewed as a form of meta-regulation, which prescribes how regulation itself should be regulated. The factors relevant to criminalisation under the Guide are discussed further at [1.215].

The concept of the criminal law as a system of legal norms for guiding action backed by the potential threat of State condemnation and punishment has long been faced with the need, as Lacey and Zedner note, “to legitimate its activities vis-a-vis those who are subject to [it]”. 28 This challenge is tackled on two levels. At the level of substantive doctrine, legitimation is addressed by appealing to the objective and timeless status of the legal standards being applied, and then basing these standards in common understandings or shared universal commitments. At the level of criminal process, legitimacy is addressed by compliance with the fundamental values of criminal justice embodied in the principles of legality, fairness and equality, and so on. This list of fundamental values and principles in the criminal law is not closed, and increasingly draws upon the rights contained in international treaties and human rights legislation: Chapter 2, [2.145] and [2.195]. Whatever the precise legal form these values take – whether recognised under international law, constitutional law or merely as general principles – these normative standards play a significant role in legitimating the criminal law. In liberal democratic societies, the legitimacy of punishment is addressed through the principle of legality or, as it is more traditionally known, the rule of law. 29 The rule of law secures legitimation by purporting to constrain arbitrary power in a number of ways. A key idea is that no person may be punished except for a breach of law established in the ordinary manner before the courts. Another important component is that no person is above the law; every person is subject to these laws without exception, thus ensuring equality before the law. Judges are required to do justice according to the law, rather than by reference to subjective,

25 26 27 28 29

Australian Law Reform Commission, Principled Regulation: Federal Civil and Administrative Penalties in Australia, Report No 95 (2002) [3.110] (Statement of Principle). Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (2011). Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (2011) p 12. N Lacey and L Zedner, “Legal Constructions of Crime” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (5th ed, Oxford: Oxford University Press, 2012) p 166. The phrase “rule of law” is commonly associated with the 19th century English constitutional writing of AV Dicey, Introduction to the Study of the Law of the Constitution (10th ed, London: Macmillan, 1959) pp 202–203. The idea of rule by law rather than by men has an older lineage traceable to the Magna Carta (1215) as well as the Glorious Revolution (1688), the United States Declaration of Independence (1776) and Constitution (1787). For an excellent essay examining the rule of law, see D Clark, “The Many Meanings of the Rule of Law” in K Jayasuriya (ed), Law, Capitalism and Power in Asia (London and New York: Routledge, 1999).

8 [1.25]

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Ch 1

arbitrary and discretionary notions of fairness or morality. 30 These elements are embodied in the principle of legality, which is expressed through the dual maxims: • nullum crimen sine lege (no crime without law); and • nulla poena sine lege (no punishment without law). Fidelity to the principle of legality, and its maxims, leads to the rejection of retrospective criminal laws and punishment without trial, as well as imposing constraints on judicial creativity in expanding the scope of criminal laws. 31 The principle has spawned subsidiary rules relating to statutory interpretation, such as the presumption that parliament did not intend to enact retrospective penal measures or abrogate fundamental rights. 32 More generally, the principle of legality supports the general “strict” approach to statutory interpretation in which the courts must resolve uncertainty and ambiguity of penal provisions in favour of the defendant. 33 That said, legislatures in jurisdictions which do not elevate legality to an overriding constitutional principle do retain sovereign power to derogate from this principle. 34 Though not a common occurrence, the federal parliament has enacted new offences, applying them retrospectively, to criminalise serious offences. It has done this in relation to war crimes and some terrorism offences, such as “harming Australians overseas” in the aftermath of the Bali bombings: see Chapter 15, [15.130]. The ideals lying behind the rule of law are largely the product of the Enlightenment. As Lindsay Farmer has noted, these ideals emerged in the 18th century “as part of a movement that sought to restrict arbitrary royal power, and defend the absolute value of law” and, as such, are “inextricably bound up with views of the modernity of law”. 35 In the context of early colonial Australia, the rule of law played an important role in constraining the absolute powers of the Governor and facilitating the transformation of a penal settlement into a free and civil society. 36 In the modern context, where disempowered subjects are denied civil and 30

31

32 33

34

35

36

The centrality of these values of legality is reinforced by legal theory. Lon Fuller in The Morality of Law (Revised ed, New Haven: Yale University Press, 1969) has suggested that the “inner morality of law” rests on eight precepts: there must be rules; these rules must be prospective, not retrospective; they must be published; intelligible; not contradictory; capable of being complied with; not constantly changing; and that there must be congruence between the declared rules and those applied by officials. For an excellent article tracing the evolution of this “world-wide principle of legality”, and the role of academic work, especially the contributions of Glanville Williams, in raising its profile in domestic criminal law: see G Cumes, “The Nullum Crimen, Nulla Poena Sine Lege Principle: The Principle of Legality in Australian Criminal Law” (2015) 39 Criminal Law Journal 77. G Cumes, “The Nullum Crimen, Nulla Poena Sine Lege Principle: The Principle of Legality in Australian Criminal Law” (2015) 39 Criminal Law Journal 77 at 84–90. G Cumes, “The Nullum Crimen, Nulla Poena Sine Lege Principle: The Principle of Legality in Australian Criminal Law” (2015) 39 Criminal Law Journal 77 at 84–86, notes how the term “principle of legality” has been applied narrowly by Australian judges only to denote these common law principles of statutory interpretation. The principle, while recognised by the common law, “is not an express element of Australia’s constitutional framework”, which has the effect that the legislature has the power to rebut these presumptions by use of clear and express language: G Cumes, “The Nullum Crimen, Nulla Poena Sine Lege Principle: The Principle of Legality in Australian Criminal Law” (2015) 39 Criminal Law Journal 77 at 89ff. L Farmer, Criminal Law, Tradition and Legal Order (Cambridge: Cambridge University Press, 1997) p 23. For an examination of these themes in the context of colonial New South Wales, see I Holloway, S Bronitt and J Williams, “Rhetoric, Reason and the Rule of Law in Early Colonial New South Wales” in H Foster, B Berger and AR Buck (eds), The Grand Experiment: Law & Legal Culture in British Settler Societies (Vancouver: UBC Press, 2008). The extent to which the rule of law operated to constrain the exercise of arbitrary State power, or, conversely, to legitimate the power of the ruling elite, is a matter of continuing debate in the Australian context: D Neal, The Rule of Law in A Penal Colony (Cambridge: Cambridge University Press, 1991) Ch 3; B Kercher, An Unruly Child: A History of Law in Australia (Sydney: Allen and Unwin, 1995); G Woods, A History of [1.25]

9

Part I: Theory and Principles

political rights, the concepts of legality and the rule of law continue to provide one of the few (though not always effective) means of rendering the State accountable for its actions. 37 These ideals and principles encompassed within the rule of law play an influential role in constructing the legal subject—the offender. An important premise behind the rule of law is that the State punishes criminal conduct, not criminal types. As Francis Allen points out: “Although the point seems not often made, the nulla poena principle has important implications not only for the procedures of justice but also for the substantive criminal law. It speaks to the questions, ‘What is a crime?’ and ‘Who is the criminal?’ The nulla poena concept assumes that persons become criminals because of their acts, not simply because of who or what they are.” 38

According to Allen, drafting criminal laws to punish individuals because they possess characteristics perceived to be dangerous or anti-social is incompatible with the principles of legality. As we shall explore below, criminological theories based on biological determinism supported such approaches to criminalisation, and were influential in Nazi and Soviet legal systems: see [1.110]. It would be incorrect, however, to assume that legal systems based on the rule of law did not enact offences targeting the defective character of offenders rather than their conduct. Throughout the 19th century, “status” offences were widely enacted to deal with vagrants, bushrangers, prostitutes, drunks and habitual criminals. As we shall explore below, the modern criminal law continues to identify types of offenders through the range of special laws and powers enacted to deal with dangerous offenders and, more recently, members of terrorist groups and “outlaw motorcycle gangs”. In the aftermath of the September 2001 terrorist attacks (9/11), membership of proscribed organisations has been criminalised by federal legislation, with further ancillary offences such as associating with terrorist organisations: Criminal Code Act 1995 (Cth), s 102.8. These federal laws have provided the template for new organised crime offences: see Chapter 15, [15.280]. Such derogations from the rule of law are significant. They reveal that the ideals of legality, upon closer scrutiny, are often hedged with qualifications. The value of legality is not so much instrumental, but rather symbolic and ideological. Its importance resides in its capacity to confer legitimacy on the criminal law. By abstracting the offence from the political and social context of its enactment and enforcement, the law may be applied (or so it is claimed) in a neutral and impartial manner. This has the effect of excluding the subject of the criminal law—the offender—from legal view, and therefore suppressing the relevance and significance of personal characteristics such as class, ethnicity, sexuality and gender. This abstraction of offenders from their social and political context may be viewed as part of a historical project of

37

38

Criminal Law in New South Wales (Sydney: Federation Press, 2002). For earlier discussions of the significance of the rule of law in the administration of criminal justice in 18th century England, see EP Thompson, Whigs and Hunters: The Origins of the Black Act (London: Allen Lane, 1975); J Langbein, “Albion’s Fatal Flaws” (1983) 98 Past and Present 96. Also see D Hay, “Property, Authority and the Criminal Law” in D Hay, P Linebaugh, J Rule, EP Thompson and C Winslow (eds), Albion’s Fatal Tree: Crime and Society in 18th Century England (New York: Pantheon, 1975). Within developing Asian economies, the rule of law is primarily used as a means of legitimating strong government rather than protecting democratic, liberal values: K Jayasuriya (ed), Law, Capitalism and Power in Asia (London and New York: Routledge, 1999). British colonial powers have not been averse to supplying legal rights in lieu of democracy: C Jones, “Politics Postponed: Law as a Substitute for Politics in Hong Kong and China” in K Jayasuriya (ed), Law, Capitalism and Power in Asia (London and New York: Routledge, 1999) p 45. F Allen, The Habits of Legality—Criminal Justice and the Rule of Law (New York: Oxford University Press, 1996) p 15.

10 [1.25]

Theory and the Criminal Law

Ch 1

reconstructing notions of criminal responsibility in the late 19th century. 39 Until this period, the idea of responsibility in the criminal law was determined largely by reference to the offender’s character, rather than their conduct. 40 This idea was reflected in a moral conception of fault based on malice and wickedness. Only gradually were these normative notions of objective fault displaced with descriptive neutral subjective mental states based on intention, knowledge or recklessness: see Chapter 3, “Fault elements”, [3.170]. Although modern legal discourse struggles to suppress the political dimensions of the criminal law, it is never completely successful. While political questions about criminalisation and enforcement policies are deemed non-justiciable at trial, they are often relevant at the pre-trial (influencing police or prosecutorial discretion) or post-conviction (influencing sentencing) stages. The political dimensions of criminal conduct are sometimes exposed in the application of substantive legal rules. For example, feminists have revealed that the legal definitions of homicide, self-defence and provocation (while formally gender-neutral) are constructed around and condone masculine understandings of legitimate excusable violence. As we shall see in Chapters 4 and 5, the socio-political construction of homicide has severely limited the range and scope of defences available to battered women who kill abusive partners. Critical scholarship recognises as important a wide range of questions about the nature of the crime, the type of offender, and the impact of law enforcement—matters that should have crucial implications for legal responses to crime. Debates in the criminal law are often represented as a dialogic tension between the interests of legality and the countervailing needs of securing individualised justice. 41 This tension is stamped across many compartments of the criminal law. However, it is not only justice that tempers legality. Broader community values and interests are often viewed as imposing limitations on legality. For example, the rules governing intoxication reveal how strict legal logic has been qualified by policy considerations based on “common sense” and “community interests”. The tensions between the principle of legality and other legal values, such as fairness, and non-legal values, such as efficiency, are further explored in Chapter 2, [2.115].

Legal Positivism and a Concept of Criminal Law [1.30] Notwithstanding the emergence of alternative theoretical perspectives in the form of

Critical Legal Scholarship, socio-legal studies and law in context, much legal scholarship (and consequently legal education) remains “broadly positivist”. 42 From both explanatory and normative perspectives, legal positivism fixes clear boundaries around the criminal law, which is viewed as a discrete and autonomous field that may be understood and applied without reference to politics, economics, morality, history, psychology or sociology. To the extent that analysis does extend beyond cases and legislation, it is limited to contextualising law within a set of legal values (informed broadly by liberalism) relating to autonomy, equality, fairness, privacy, and so on. Conceiving of the criminal law as a discrete system of rules and principles has the effect of quarantining questions about the nature of crime, punishment and the criminal process, from 39

40 41 42

A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014); L Farmer, Criminal Law, Tradition and Legal Order (Cambridge: Cambridge University Press, 1997) Ch 1. M Wiener, Reconstructing the Criminal (Cambridge: Cambridge University Press, 1991). F Allen, The Habits of Legality—Criminal Justice and the Rule of Law (New York: Oxford University Press, 1996) p 21. N Lacey, “Feminist Perspectives on Ethical Positivism” in T Campbell and J Goldsworthy (eds), Judicial Power, Democracy and Legal Positivism (Aldershot: Ashgate, 2000) p 92. This essay reviews how feminism has challenged positivism’s claims of objectivity, neutrality, centrality, unity and rationality for law. See further S Bottomley and S Bronitt, Law in Context (4th ed, Sydney: Federation Press, 2012) Ch 3. [1.30]

11

Part I: Theory and Principles

legal analysis. 43 The ideological exclusion of criminology, as well as other non-legal perspectives, conceals important insights into the role of offenders, victims, the public and the State in understanding crime and the legal responses to it. Criminology, as well as providing theoretical perspectives on the criminal law and criminal justice system, offers empirical insights on the practical operation of specific laws. It opens a disciplinary space for critical scholarship to explore the gap between “law in action” and “law in the books”. We explore this crucial distinction at [1.130]. Empirical research undoubtedly produces better policy-making and law reform—it serves to counteract the belief of lawyers, judges and legislators pursuing “law and order” agendas, that social and cultural change by criminal prohibition is inevitable and achievable. 44 As we shall explore in Chapter 11, empirical studies in Australia have shown that, notwithstanding the abolition of many discriminatory rules and practices in rape trials, the treatment of complainants has not significantly improved. Indeed, in many areas, these reforms have been counterproductive. Criminologists and sociologists have exposed the limits of legality in regulatory terms. Peter Grabosky has highlighted the risk of new laws being neutralised through “creative adaptation” and “unintended consequences”. 45 Adopting this regulatory approach invites a more complex account of criminalisation, one which places criminal law within a wider space that spans public and private law, as well as other non-legal forms of social control. Critical scholarship has moved beyond the standard “law in context” methodology, suggesting that the criminal law is itself subjected to regulation: “Criminal law … both regulates and is regulated by other normative systems within the social order”. 46 Criminal law therefore must be understood as interacting within the wider legal context of public and civil law, as well as affected by underlying community attitudes that impact upon levels of compliance and non-compliance. Regulatory perspectives need not discount the significance of symbolism. As Lacey acknowledges, since the instrumental effects of criminalisation may be uncertain, the distinctive regulatory contribution of the criminal law lies not in its standard-setting functions, but rather in its conferral of legitimacy, “one of the key symbolic resources of any regulatory system”. 47 Liberal accounts view the criminal law as the ultimate prohibitory norm that should only be used as a measure of “last resort” reserved for serious wrongdoing. 48 This concern about over-criminalisation is shared by critical scholars, such as Russell Hogg and David Brown, who accuse law-makers of squandering the criminal law through an “uncivil politics of law 43

44

45 46 47 48

12

Since the modern criminal law, due to the sheer breadth of its reach in regulatory terms, cannot be distinguished by looking to substance alone, the trend in modern textbooks to ignore or gloss rationales for criminalisation is particularly concerning: N Lacey and L Zedner, “Legal Constructions of Crime” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (5th ed, Oxford: Oxford University Press, 2012) p 164. A Ashworth, “Editorial—The Value of Empirical Research in Criminal Justice” [1997] Criminal Law Review 533; R Lee, “Socio-Legal Research—What’s the Use?” in P Thomas, Socio-Legal Studies (Aldershot: Dartmouth, 1997). The increased focus on empirical research across many fields of law is reviewed in P Cane and HM Kritzer (eds), The Oxford Handbook of Empirical Legal Research (Oxford: Oxford University Press, 2010). P Grabosky, “Counterproductive Regulation” (1995) 23 International Journal of the Sociology of Law 347. See generally A Freiberg, The Tools of Regulation (Sydney: Federation Press, 2010). See N Lacey “Criminalization as Regulation: The Role of Criminal Law” in C Parker, C Scott, N Lacey and J Braithwaite (eds), Regulating Law (Oxford: Oxford University Press, 2004) Ch 7. N Lacey, “Criminalization as Regulation: The Role of Criminal Law” in C Parker, C Scott, N Lacey and J Braithwaite (eds), Regulating Law (Oxford: Oxford University Press, 2004) p 157. A Ashworth and J Horder, Principles of Criminal Law (7th ed, Oxford: Oxford University Press, 2013) pp 31–35. [1.30]

Theory and the Criminal Law

Ch 1

and order”. 49 This trend is apparent in many areas, such as public order and drug offences, where new police powers and offences have been enacted to combat perceived threats to the community’s social, political, economic and even international interests. Notwithstanding this image of an omnipotent criminal law in need of restraint, it must be acknowledged that the regulatory power of criminalisation can be surprisingly weak. To criminalise conduct places the subject and conduct practically and symbolically beyond the boundaries of legality and civil society. The criminal is literally and legally rendered out law. This is the paradox of criminalisation. The process, while potently symbolic, weakens the instrumental capacity of law to regulate the prohibited conduct. For example, where there exists a continuing market for goods or services that have been prohibited, such as illicit drugs or prostitution, the regulatory impact of the criminal law may be marginal or even counterproductive. Criminalisation may simply serve to stimulate the illegal market by increasing the profit to be gained from the delivery of illicit goods and services. It may also undermine law enforcement more generally by increasing the likelihood of police corruption and weakening public confidence in the administration of justice. Criminal prohibition may have undesirable and unintended effects and criminalisation should not necessarily mean that legal regulation must be abandoned. As David Dixon observed in relation to illicit drugs: “Indeed, the prohibition/legalisation dichotomy is unhelpfully stark: the significant issue is not whether we choose prohibition or legalisation, but rather how we regulate markets in ways which minimise the harms caused by the activities and by their prohibition.” 50

Similar concerns about the counterproductive effects of criminalisation have been raised in relation to special offences prohibiting HIV transmission and female genital mutilation, discussed in Chapter 10 at [10.90] and [10.105] respectively. The counterproductive effects of prohibition of illicit drugs are further explored in Chapter 14, [14.10]. Another weakness of the positivist conception of law is that the sources of its rules and principles are restricted to formal authorities, namely legislation and case law, which tends to overlook or marginalise the roles played by institutional gatekeepers. As John Gardner has noted, “[l]egislators, justice ministers, trial judges, jurors, appeal judges, probation officers, prison governors, and so on all have their own role to play in the social practices of criminal law and criminal punishment”. 51 Empirical research has revealed how police and prosecutors play a key role in determining the boundaries of the criminal law through their practices and policies of selective enforcement, charge-negotiation and plea-bargaining. 52 As Keith Hawkins’ classic empirical study of environmental enforcement revealed, the values and policies of the prosecutors, not the substantive legal definitions, were often determinative of the decision to prosecute. 53 Combined with the reality that most suspects plead guilty, the 49 50 51 52

53

R Hogg and D Brown, Rethinking Law and Order (Sydney: Pluto Press, 1998) Ch 1. D Dixon, “Issues in the Legal Regulation of Policing” in D Dixon (ed), A Culture of Corruption (Sydney: Hawkins Press, 1999). J Gardner, Offences and Defences (New York: Oxford University Press, 2007) p 202. J Hodgson and A Roberts, “Criminal Process and Prosecution” in P Cane and HM Kritzer (eds) The Oxford Handbook of Empirical Legal Research (Oxford: Oxford University Press, 2010) provides an excellent survey of empirical research on prosecution, and the wide range of legal and non-legal factors that shape decision-making. K Hawkins, Environment and Enforcement (Oxford: Clarendon Press, 1983) found that prosecution of environmental offences only proceeded in cases where there was evidence of an intentional violation of the law by the accused even though the law—which imposed strict liability—did not require proof of intent. See also K Hawkins, “Law as Last Resort” in R Baldwin, C Scott and C Hood (eds), A Reader on Regulation (Oxford: Oxford University Press, 1998) p 288. [1.30]

13

Part I: Theory and Principles

legal rules (encapsulated in procedural, evidential and substantive legal definitions) operate primarily as “bargaining chips” for the police, prosecution and defence lawyers in negotiating charges and pleas and penalties. Positivist accounts of the criminal law ignore how legal rules and principles are mediated through the criminal process—the rules of the criminal law simply define and prohibit particular conduct and states of mind. Such accounts rarely consider how legal rules articulated in the higher courts are “translated” in the lower courts. Little attention is paid to the influential role of jury directions and legal summation in shaping the meaning of key legal concepts, such as intention, consent or dishonesty. These issues are further explored in Chapter 2, [2.190], “The law/fact distinction: the boundaries of judicial impartiality”. It has been suggested that the number and extent of these directions pose a threat to the independence of the jury. 54 Formal accounts of the criminal law also tend to ignore the role of judicial texts, such as judicial benchbooks, which provide both specimen directions and, for all practical purposes, are regarded as an authoritative source of criminal law for guiding trial judges. It is often the summary of the relevant legal rule contained in the benchbook, rather than the primary source itself, that will be guiding the magistrate, trial judge and the jury. To achieve a deeper understanding of the criminal law, both practically and theoretically, a wider range of legal sources, both formal and informal, must be studied. 55

Reinstating History and Procedure [1.35] The positivist “concept of law” may also be criticised for conceiving its rules and

principles in ahistorical terms. Legal history, if considered at all, is only used to trace the pedigree of legal rules or principles along lines of authority. This is a form of legal antiquarianism—an exploration of the past for the purpose of demonstrating how far we have progressed. As Alan Norrie observes: “To the extent that lawyers think historically about the law, they tend to think in terms of the slow evolution of legal forms from the crude to the sophisticated, and not in terms of the particular connections between different legal forms and different kinds of society.” 56

This suppression of history, especially the impact of procedural changes, reinforces the conception of the criminal law as a rational system of rules. Crimes are dissected into components, such as “ingredients” or “elements” of offences or defences, rather than viewed as a historical process of criminalisation which is responsive to changing social, cultural and political forces. Historical analysis produces a more complex and comprehensive understanding of the criminal law. It has exposed the contingency and contradictions of “general principles” of the criminal law, as well as the social, political and economic forces shaping the development of specific substantive crimes. For example, as we reveal in Chapter 14, the history of drug law in Australia reveals the role of racism in the construction and legal repression of “Chinese vice” in the 19th century. This is not an exercise motivated by legal antiquarian fascination. By exposing the contingency of criminalisation, historical research may assist the reshaping of our approach to the criminalisation of illicit drugs: see Chapter 14, [14.10]ff. 54 55

56

14

G Flatman and M Bagaric, “Juries Peers or Puppets—The Need to Curtail Jury Instructions” (1998) 22 Criminal Law Journal 207. These sources, once privately prepared and circulated among judges, are now available online in many jurisdictions. For example, http://www.courts.qld.gov.au/court-users/practitioners/benchbooks (cited 20 December 2016) and https://www.judcom.nsw.gov.au/category/publications/bench-books/ (cited 20 December 2016). A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) p 10. [1.35]

Theory and the Criminal Law

Ch 1

Farmer has sought to meld the historical and procedural perspectives into a theory of criminal law called “critical positivism”. 57 He argues that a better understanding of rules and principles may be gained from historical study of the relationship between criminal law and its procedures. He suggests that historical approaches to criminal law must not confine themselves to tracing the influence of liberal philosophy on the development of the “principles of criminal responsibility” from the 18th century onwards. He is dismissive of the current “fetish” for contextualising the criminal law through inter-disciplinary critique—in his view, this leads to a growing confusion about how the criminal law fits together (particularly of what constitutes the “core” and the “context”) and “increasingly diffuse accounts of social control”. 58 By contrast, his theory of “critical positivism” offers the prospect of a deeper appreciation of the criminal law through its relationship with criminal justice: “The study of the doctrine of the criminal law must therefore begin by shifting attention on the relationship between legal practices and moral philosophy itself. It should look at its origins, the way that this has been invested with significance, and its actual significance to the operation of the criminal justice system. This entails looking at it as one practice within a complex of practices—the philosophising of the criminal law in the field of the administration of criminal law and criminal justice—where the relationship is not given, once and for all, but must always be in the process of re-establishing itself. The true significance of each of these practices in a specific period must be traced and weighed against the others. The organising concepts of the criminal law do not have an a priori existence, springing fully formed from the head of some god-like philosopher. They emerge from institutional practices and their study must begin by looking at their uses in this system of practices.” 59

Beyond Legal Positivism [1.40] The principal weakness of the positivist definition of “crime” is its tendency to conceal

or suppress its deeply contested normative character. Farmer suggests that the tendency of modern lawyers and judges to define crime in neutral procedural terms, rather than by reference to its inherent normative qualities, simply “reflects the diversity of functions of law in the interventionist State. There is no single, simple moral or other purpose that is capable of holding the whole together”. 60 He traces this diversity in the modern criminal law to the administrative transformations in the 19th century criminal justice system; in particular, the growth of regulatory offences triable by summary procedures. While these new forms of crime promoted public welfare, social order and efficiency, they could no longer be justified in terms of protecting the moral or political order. As a consequence, explanations of the criminal law became increasingly neutral and policy-based. Normative suppression performs an important legitimating function related to the separation of powers. According to the ideals of legal positivism, the function of the courts should be confined to the interpretation and application of existing rules or principles. 61 Within the constraints of adjudication, the courts have the power to refine and clarify definitions and concepts, and to apply existing rules to new situations. Higher courts have the additional power to correct doctrinal mistakes and to develop the law in accordance with its fundamental principles. Positivism contends that if there are no clear rules or principles, then it 57 58 59 60 61

L Farmer, Criminal Law, Tradition and Legal Order (Cambridge: Cambridge University Press, 1997) Ch 1. L Farmer, Criminal Law, Tradition and Legal Order (Cambridge: Cambridge University Press, 1997) p 12. L Farmer, Criminal Law, Tradition and Legal Order (Cambridge: Cambridge University Press, 1997) p 12. L Farmer, “The Obsession with Definition: The Nature of Crime and Critical Legal Theory” (1996) 5 Social and Legal Studies 57 at 66. HLA Hart, The Concept of Law (Oxford: Clarendon Press, 1961); R Dworkin, Law’s Empire (London: Fontana, 1986). [1.40]

15

Part I: Theory and Principles

is for parliament, not the courts, to fill the gaps. Questions of what the criminal law is are primarily technical legal matters for the courts. Questions of what the law should be are political matters for the legislature. 62 The positivist’s “concept of law” is clearly contestable as a sociological depiction of adjudicative practices within systems based on the common law tradition. The interpretative process permits judges at every level considerable discretion or “leeways”, to use Julius Stone’s phrase, to refashion and create legal doctrine. 63 Judicial creativity is admittedly constrained by legal conventions governing the proper use of precedent, interpretation of statutes and beliefs about the appropriate constitutional limits of judicial law-making. Indeed, most common law systems would deny judges the inherent power to create “new” crimes retrospectively in the public interest. 64 Judicial law-making in the criminal law field does, however, occur indirectly—the High Court has exercised its power to abolish outmoded common law offences (such as battery manslaughter) or restrict the scope of particular defences. In some cases, this process of incremental doctrinal development raises concern about the legitimate limits of criminalisation by judicial pronouncement rather than legislative enactment. For example, judicial decisions in England and Australia have held that the marital rape immunity is no longer part of the common law. This refusal to recognise the historical immunity may be viewed as a judicial act of law-creation, criminalising spousal rape where no such crime previously existed. Although potentially conflicting with the principle against retrospectivity, the courts clearly have some latitude in moulding the law in accordance with changing social and political attitudes. The demise of the marital rape immunity is further explored in Chapter 11, [11.65]ff. This process of judicial law-making is also facilitated by the breadth of offence definitions that allow the courts to extend existing laws to emerging and unforeseen social threats. For example, “catch all” offences of public nuisance and endangerment, recognised by common law and statute, have been used to criminalise individuals organising “raves”, 65 and individuals who engage in sexual intercourse that exposes others to the risk of HIV transmission. 66 Legal rhetoric, in keeping with positivist ideals, is compelled to deny the true extent of judicial creativity. The inherent flexibility and discretion within interpretation and adjudication 62

63

64

65 66

This ideal is strongly promoted in Tom Campbell’s The Legal Theory of Ethical Positivism (Brookfield, VT: Dartmouth Publishing Co, 1996). This explicitly normative theory of law emphasises the importance of democratic institutions and the separation of powers with the effect of imposing strict limits on judicial law-making. Ethical positivism, however, is open to the same criticisms that have been levelled at its ancestors: it adopts a narrow conception of legal and political power, and denies the relevance of external disciplinary perspectives on law: N Lacey, “Feminist Perspectives on Ethical Positivism” in T Campbell and J Goldsworthy (eds), Judicial Power, Democracy and Legal Positivism (Aldershot: Ashgate, 2000). See J Stone, Legal System and Lawyers’ Reasonings (London: Stevens and Sons, 1964); J Stone, Precedent and Law: Dynamics of Common Law Growth (Sydney: Butterworths, 1985). Responding to accusations of inappropriate levels of judicial activism, some judges have addressed the issue of the legitimacy and limits of judicial law-making in extra-curial speeches: M McHugh, “The Law-Making Function of the Judicial Process—Part I” (1988) 62 Australian Law Journal 15 and “The Law-Making Function of the Judicial Process—Part II” (1988) 62 Australian Law Journal 116; A Mason, “The Role of the Courts at the Turn of the Century” (1993) 3 Journal of Judicial Administration 156; A Mason, “The Courts as Community Institutions” (1998) 9(2) Public Law Review 83. Scottish criminal law being the most prominent exception: see L Farmer, Criminal Law, Tradition and Legal Order (Cambridge: Cambridge University Press, 1997) p 23, citing Rachel Wright (1809): “The genius of our law rests on a principle diametrically opposite to that of England; the Courts of criminal jurisdiction being authorised to punish crimes with any positive enactment”, per Clerk Hope LJ. See further J Popple, “The Right to Protection from Retroactive Criminal Law” (1989) 13 Criminal Law Journal 251. R v Shorrock [1993] WLR 698. Mutemeri v Cheeseman [1998] 4 VR 484.

16 [1.40]

Theory and the Criminal Law

Ch 1

provides the space for theory to inform and guide legal development. These normative resources may be framed in terms of common sense, experience or conventional legal, moral or political philosophy. Whether the legal community is conscious of the value of theory, legal rules are shaped and outcomes determined by reference to ideas about how the criminal law does and should operate.

The Relationship Between Crime and Punishment The requirements of deterrence, rehabilitation, denunciation, punishment and restorative justice do not point in the same direction. Specifically, the requirements of justice, in the sense of just deserts, and of mercy, often conflict. Yet we live in a society which values both justice and mercy. 67 [1.45] According to conventional definitions, the criminal law is tied to punishment.

Punishment following conviction has several competing aims and effects. These aims and effects are typically represented as retribution, deterrence, incapacitation and rehabilitation. In recent times, as noted above, restorative justice has been added to this list—though this concept is said only to complement, rather than replace, conventional criminal processes and sentencing procedures. The relationship between crime and punishment is typically examined in the first few pages of the standard criminal law text, rarely posing the question whether the linkage assists our understanding of the nature, scope and limits of the criminal law. In the next section, we search more deeply for answers to questions about the proper relationship of punishment to the criminal law, drawing on normative, historical and empirical perspectives on the nature, purpose and effects of punishment. Since punishment flows from a verdict of guilt, theoretical discussion of the criminal law is customarily prefaced with an exploration of the legitimacy of State punishment. As HLA Hart said in Punishment and Responsibility, punishment in legal terms must: • involve pain or other consequences normally considered unpleasant; • be for an offence against legal rules; • be exacted upon an actual or supposed offender for an offence; • be intentionally administered by human beings other than the offender; and • be imposed and administered by an authority constituted by a legal system against which the offence is committed. 68 To view criminal law as an adjunct to punishment draws us inevitably into a philosophical discussion of the purposes and justifications of punishment. This is represented as an ideologically polarised debate between retributivists seeking punishment as “just deserts” for law-breakers, and utilitarians who view punishment as a tool to prevent crime through deterrence, rehabilitation or incapacitation: “Such crude extremism readily spills over to create rival caricatures of the criminal law as a whole.” 69 In discussing punishment, there is a tendency to muddle the purposes, consequences and justifications. As leading legal theorist HLA Hart conceded, theories of punishment do not necessarily explain what punishment is or achieves, but rather constitute “moral claims as to what justifies the practice of punishment—claims as to why, morally, it should or may be used”. 70 As a consequence, discussion of punishment is highly normative. These various 67

68 69 70

J Spigelman, “Judging Today” (Address to the Local Courts of New South Wales 2003 Annual Conference, 2 July 2003), http://www.supremecourt.justice.nsw.gov.au/Pages/SCO2_publications/SCO2_judicialspeeches/ sco2_speeches_pastjudges.aspx#spigelman (cited 17 July 2016). James Spigelman served as the Chief Justice of New South Wales from 1998 to 2011. HLA Hart, Punishment and Responsibility (New York: Oxford University Press, 2008) pp 4–5. S Shute, J Gardner and J Horder, Action and Value in Criminal Law (Oxford: Clarendon Press, 1993) p 3. HLA Hart, Punishment and Responsibility (New York: Oxford University Press, 2008) p 72. [1.45]

17

Part I: Theory and Principles

theories of punishment have influenced a wide range of issues including criminalisation; the basis and scope of criminal responsibility; the availability of defences or excuses; and the proper principles to guide sentencing law, policy and practice. In the following section, we examine the background and philosophical ideas behind these rival theories of punishment and evaluate their impact upon and significance for the modern criminal law. Retribution and proportionality My object all sublime … I shall achieve in time, … To let the punishment fit the crime … … The punishment fit the crime? 71 [1.50] Retribution is the communal, institutionalised expression of the basic human instinct

to impose, within acceptable limits, painful consequences upon persons who commit harmful and wrongful acts. For many people, retribution is viewed as the primary purpose of punishment. 72 To distinguish it from vengeance, retribution holds that offenders should receive punishment proportionate to the harm caused by their conduct and their blameworthiness or guilt. 73 In a system based on retribution, however, there is no further purpose behind punishment, such as prevention of future crime by deterrence or rehabilitation. As a consequence, retribution is said to be “backward-looking” because it focuses on the past criminal act and the offender’s criminal responsibility for that act. Not only must there be proportionality between the nature and degree of punishment and the blameworthiness of the offender, but there must also be a proportionate relationship between the harm done and the punishment. In colloquial terms, “the punishment must fit the crime”, a commonplace idea that inspired the operatic lyrics of Gilbert & Sullivan, quoted above. It is important to distinguish retribution from proportionality, the latter having a broader appeal and application, for example, placing limits on the use of punishment in pursuit of utilitarian aims such as deterrence. 74

An eye for an eye: retributive or restorative justice? [1.55] The lex talionis is usually traced to the Old Testament injunction “an eye for an eye, a tooth for a tooth”: Exodus 21:24. Paradoxically, this provision of Jewish law relates not to a measure of punishment, but rather to a principle of just compensation in the civil law. 75 The phenomenon of restorative concepts being hijacked by retributive discourse has also been found in the evolution of Greek and Anglo-Saxon laws. 76 Braithwaite suggests that restorative justice, rather than being a recent innovation, has been “the dominant model of criminal justice throughout most of human history for perhaps all of the world’s peoples”. 77 He has also traced the way in which Australian convict society offered restorative justice through its high levels of reintegration and procedural justice. 78

71 72

73 74 75 76 77 78

From “The Mikado” (1885), a comic opera by A Gilbert and WS Sullivan, Act II. Retribution is sometimes considered to be a synonym for punishment: G Davies and K Raymond, “Do Current Sentencing Practices Work?” (2000) 24 Criminal Law Journal 236 at 238. Such definitions erroneously imply that interventions promoting rehabilitation, deterrence or incapacitation are not punishment. R Fox, “The Meaning of Proportionality in Sentencing” (1994) 19 Melbourne University Law Review 489. Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) pp 133, 149–151. M Lew, The Humanity of Jewish Law (London: The Soncino Press, 1985) Ch 1. J Braithwaite, Restorative Justice and Responsive Regulation (Oxford and New York: Oxford University Press, 2002). J Braithwaite, Restorative Justice and Responsive Regulation (Oxford and New York: Oxford University Press, 2002) p 5. J Braithwaite, “Crime in a Convict Society” (2001) 64(1) Modern Law Review 11.

18 [1.50]

Theory and the Criminal Law

Ch 1

Dissatisfaction with the effectiveness of deterrence and rehabilitation in the 1990s revived academic interest in retributive justice. 79 Retribution, framed as a “Theory of Just Deserts”, now occupies a prominent place in debates about modern sentencing law, policy, principles and practices. 80 While retributive justice has gained much ground, it would be wrong to claim that it is the primary or paramount purpose of punishment. Modern sentencing legislation tends to adopt a “smorgasbord” approach in which the judge, in deciding whether the sentence is “just” or “appropriate” 81 may take into account a range of considerations, some potentially contradictory and conflicting, relating to rehabilitation, deterrence, denunciation and community protection. 82 Indeed, retributive justice is increasingly being challenged by ideas of “restorative justice”, which are explored further at [1.95]. The theory of retributive justice also has implications beyond sentencing law and practice. In the substantive law governing attempts, lesser penalties generally apply than for the completed offence: punishment must be proportioned according to whether or not harm has been caused: see, for example, Crimes Act 1958 (Vic), s 321P. Although a person who attempts to commit a crime may possess an equivalent level of culpability to a person who successfully commits one, the importance of proportionality in relation to harm justifies different treatment. Similarly, if an accused has attacked another, intending to cause grievous bodily harm, he or she will be punished less severely if the victim survives than if the victim dies. The level of blameworthiness may be the same, but the punishment will differ according to the consequences of the accused’s actions.

Sentencing perspectives Searching for Consistency: Commonwealth Sentencing Database [1.60] In the context of modern sentencing, retribution is an important, but not

overriding, consideration. At common law, the aims of sentencing may be found scattered in judicial dicta, many of which are contradictory. To promote consistency, the purpose and principles guiding sentencing discretion have been cast in legislative form in most jurisdictions. At the Commonwealth level, the “complex and ambiguous” sentencing regime in Pt IB of the Crimes Act 1914 (Cth) has led to there being “compelling evidence of inconsistencies in the sentencing of federal offenders in Australia”. 83 In response to public and judicial concerns and on the recommendation of the ALRC, the Commonwealth Sentencing Database (CSD) was launched in 2008 by the then Minister for Home Affairs, Bob Debus, who declared: 79 80

81 82

83

R Murugason and L McNamara, Outline of Criminal Law (Sydney: Butterworths, 1997) p 10. This revival has been promoted by Andreas von Hirsch: see A von Hirsch, Doing Justice: The Choice of Punishments (New York: Hill and Wang, 1976); Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals (New Brunswick: Rutgers University Press, 1985); Censure and Sanctions (Oxford: Oxford University Press, 1993). See also, AP Simester, A Du Bois-Pedain and U Neumann (eds), Liberal Criminal Theory—Essays for Andreas von Hirsch (Oxford: Hart Publishing, 2014). Section 16A(1) of the Crimes Act 1914 (Cth) provides that “… a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence”. See Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A; Sentencing Act (NT), s 5; Penalties and Sentences Act 1992 (Qld), s 9; Criminal Law (Sentencing) Act 1988 (SA), s 10; Sentencing Act 1997 (Tas), s 3; Sentencing Act 1991 (Vic), s 5(1). Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) pp 1–2. [1.60]

19

Part I: Theory and Principles

“The [CSD] is designed to provide judicial officers with reliable, accessible and up-to-date information on penalties imposed for breaches of Commonwealth laws. This will promote consistency of sentencing across the nation—which is fundamental to maintaining a just and equitable criminal justice system … People expect that a court dealing with a Commonwealth offence in one State or Territory will be consistent in approach with courts in other States and Territories. The same offence should get a similar sentence—whether committed in Broome or Bundaberg … The Same Crime, Same Time report called for an information system to ensure that penalties imposed for Commonwealth offences be proportionate and that sentences be consistent. In response—the new database has been developed. It is online [for access see footnotes 85 and 86 below] and includes: • sentencing statistics • guidance on the principles and practice followed by the Courts in sentencing for Commonwealth offences, and • reference material such as legislation, case law and articles. The statistics component will be particularly useful in encouraging consistency. It provides users with access to information in the form of graphs and tables on the range and frequency of penalties imposed by courts. Through a search function, it also enables users to obtain comparative sentencing information. It contains commentary on sentencing principles, including key passages from judgments that distil the essence of leading cases.” 84

The “statistics” component of the CSD is not open access, but researchers and students may request access by contacting the National Judicial College of Australia. 85 However both the “principles and practice” and “publications” components are available to the public online. 86 The CSD is modelled on the New South Wales Judicial Commission’s Judicial Information Research System (JIRS), which is an online source of primary, secondary and statistical reference material for judicial officers, the courts, the legal profession and government agencies that play a role in the justice system. Regrettably, access is again limited to judicial officers, though part of it is accessible to the broader legal profession, libraries and educational institutions on a hefty subscription basis. 87 Bearing in mind the central role that these databases play in sentencing, greater levels of transparency and accessibility are required. Indeed, the Judicial Conference of Australia (JCA) has recognised the importance of transparency in the sentencing processes to counter negative perceptions in the community. 88 Deterrence [1.65] Deterrence, unlike retribution, is concerned with preventing crime. In this sense, it is

“forward-looking”, viewing punishment in terms of its capacity to prevent individuals (either the individual accused or the general public) from breaking the criminal law. Punishment is 84 85 86 87 88

R Debus, “Sentencing Issues and the Launch of the Commonwealth Sentencing Database”, Sentencing 2008 Conference, 9 February 2008, National Judicial College, Canberra. See https://www.njca.com.au/sentencing/statistics/ (cited 21 December 2016). See https://www.njca.com.au/sentencing/principles-practice/ (cited 21 December 2016) and https:// njca.com.au/sentencing/principles-practice/ (cited 21 December 2016). See https://www.judcom.nsw.gov.au/research-and-sentencing (cited 21 December 2016). JCA, Judge for Yourself: A Guide to Sentencing in Australia, http://www.jca.asn.au/wp-content/uploads/2013/ 10/JCA_judge_for_yourself_large.pdf (cited 7 July 2016).

20 [1.65]

Theory and the Criminal Law

Ch 1

not legitimate unless it serves as an effective deterrent, a view most strongly put by the 18th century penal reformers, Cesare Beccaria and Jeremy Bentham, whose influential ideas are discussed below. Deterrence is modelled on particular assumptions about human nature; namely, that since individuals are rationally motivated to maximise pleasure and avoid pain, they will freely choose not to commit crimes. It is the threat of punishment, rather than moral “goodness”, that ensures compliance with the law. To motivate rational people, the punishment must also be proportionate to both harm and culpability. Punishment is measured to have maximum individual and general deterrent effect. Not only may it prevent recidivism (recurrence of crime) by punishing the offender, it also has the general effect of deterring other members of society from engaging in criminal conduct. As JH Burns and HLA Hart point out, these two aspects of deterrence are often confused. 89 Punishment can only have a deterrent effect, both general and specific, where the person has freely chosen to break the law. According to Jeremy Bentham, punishment should not be applied to conduct which, morally speaking, is involuntary. As Norrie noted, this exemption of involuntary conduct would excuse “individuals who could not know the law, who have acted without intention, who have done the evil innocently, under an erroneous supposition, or by irresistible constraint”. 90 Also, to be effective as a deterrent, the criminal law must be formulated in advance in clear and accessible terms, and there must be certainty and consistency of enforcement. Deterrence theory is a product of 18th and 19th century theorising about the nature of crime, human conduct and reason. As a general theory, it assumes that individuals are similarly situated socially, politically and economically, each one rationally capable of weighing and attaching similar values to the opportunities and costs of particular courses of conduct. The difficulty with this model of human behaviour is that it generalises about human behaviour and abstracts individuals from the context of their offending. The deterrent effect of laws is dependent on a wide range of factors, including the publicity of the offence, the nature of the offence, the risk of detection and certainty of prosecution, and the social stigma attached to the offence and punishment. Empirical research on the deterrent effects of environmental crimes has suggested that a deterrent effect is correlated to two factors: the certainty of punishment, that is, the likelihood of prosecution, trial and conviction; and, to a lesser extent, the severity of punishment. 91 Clearly for these “white collar” crimes, the deterrent effect may be reasonably high since potential offenders, being successful corporate players, are more likely to be economically rational, self-interested, knowledgeable about the law and occupy a high social standing, where the stigma of conviction involves significant social and professional costs. For the wider population, given the range and diversity of regulatory offences contained in the modern criminal law, it is unrealistic to presume knowledge of every crime and, most significantly, applicable sentencing tariffs. 92 89 90 91

92

JH Burns and HLA Hart, Jeremy Bentham: Introduction to the Principles of Morals and Legislation (London: Methuen, 1982) p 17. A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) p 23. J Norberry, “Environmental Offences: Australian Responses” in D Chappell and P Wilson (eds), The Australian Criminal Justice System: The Mid 90s (Sydney: Butterworths, 1994) p 167, discussing research undertaken by Duncan Chappell in Canada. M Moore, Act and Crime (Oxford: Clarendon Press, 1993) estimates that the criminal law in modern industrialised societies comprises 7,000 offences: p 1. J Horder, Ashworth’s Principles of Criminal Law (8th ed, Oxford: Oxford University Press, 2016), estimates that there are 10,000 crimes in English criminal law: p 184. [1.65]

21

Part I: Theory and Principles

Moreover, on any rational assessment, the likelihood of detection and conviction—let alone imprisonment—for many offences is very remote. This has important consequences for the theory of “absolute deterrence” which claims that the “existence of a criminal justice system that punishes offenders has the effect of deterring would-be criminals”. 93 This is strikingly represented in this summary of data on the “size of crime”, published 30 years ago, by the Australian Institute of Criminology: FOR EACH 1000 “CRIMES” COMMITTED 400 ARE REPORTED TO THE POLICE 320 ARE RECORDED BY THE POLICE AS CRIMES 64 ARE DETECTED 43 RESULT IN CONVICTIONS 1 PERSON IS JAILED 94

Clearly, a complex array of factors explains legal conformity beyond the deterrent effect of punishment. Nevertheless, there remains a widespread belief within the legal and wider community that punishment (specifically the use of imprisonment), rather than the likelihood of detection, does deter crime. It is an ideology that is sustained by political “law and order” campaigns that tougher punishments work to prevent crime. Although the assumptions behind deterrence (that individuals are calculating and rational agents) may be true for some people, some of the time, they do not generalise easily into a “theory of punishment”. Even Jeremy Bentham, the founding father of “Deterrence Theory”, had to concede the limitations of his rationalist assumptions about human nature. As Norrie observes: “The sad truth for his own deterrent theory, Bentham acknowledges, is that people can know what they ought to do, but nonetheless do what they ought not to.” 95 Notwithstanding its shaky empirical foundations, the idea of deterrence remains politically and morally significant in criminal justice debates. With the increasing scepticism in the 1970s that crime was rooted in “social factors” and that imprisonment failed to reform or rehabilitate, there was a revival of deterrence as the primary focus for crime control. Embracing deterrence was justified on pragmatic rather than philosophical grounds. As influential American scholar, James Q Wilson, conceded in his 1975 manifesto for criminal justice reform, Thinking About Crime, the deterrence model was favoured: “not necessarily because of a belief that the ‘causes of crime’ are thereby eradicated but because behavior is easier to change than attitudes, and because the only instruments society has by which to alter behavior in the short run require it to assume that people act in response to the costs and benefits of alternative courses of action.” 96

Whatever the political and pragmatic appeal of this “new” approach to crime control, it suffers from the same weakness as earlier theories of deterrence. It rests on crude 93

94

95 96

Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) p 134; see also G Davies and K Raymond, “Do Current Sentencing Practices Work?” (2000) 24 Criminal Law Journal 236 at 239. See S Mukherjee, J Walker, T Psaila, A Scandia and D Dagger, The Size of the Crime Problem in Australia (Canberra: Australian Institute of Criminology, 1987), cited in R Hogg and D Brown, Rethinking Law and Order (Sydney: Pluto Press, 1998) p 10. A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) p 27. JQ Wilson, Thinking About Crime (Revised ed, New York: Basic Books, 1983) p 50.

22 [1.65]

Theory and the Criminal Law

Ch 1

generalisations about human nature and the motivations to commit crime, and it removes offenders from the social, economic and political context of their offending behaviours. Rehabilitation [1.70] Another prominent aim of punishment seeks the rehabilitation of offenders.

Rehabilitation, like deterrence, is concerned with the prevention of crime. However, it differs from deterrence in seeking to modify behaviour by changing or reforming the moral outlook of the offender, rather than simply threatening or imposing a measure of pain sufficient to induce conformity. The history of rehabilitation is tied to the rise of prisons and the emergence of pathological models for explaining crime in the 19th century, which viewed criminal behaviour as a “social disease” that, with appropriate interventions, was both curable and preventable. Until the middle of the 20th century, rehabilitation remained a plausible purpose of punishment. Supported by sociological theories of deviance, criminal behaviour was “learned” and the product of attitudes to offending shaped and influenced by social groups, friends and family. Faulty learning could be rectified through, among other things, psychological therapy and treatment. Due to the focus of treatment on the individual needs of the offender, rehabilitation is criticised from a retributivist perspective because it leads to inconsistent sentences for the same offence. Whilst rehabilitation remained popular until the 1960s and 1970s, particularly in relation to the treatment of juveniles, it has been somewhat overtaken by the revival of retributive and deterrent theories. As we shall see in Chapter 14, [14.30], rehabilitation is making a partial comeback with the establishment of specialised drug courts in Australia which have been specifically constituted to provide judicial supervision of drug treatment and rehabilitation. 97

Rehabilitation and the rise of the model prison [1.75] In terms of the history of punishment, the penitentiary model emerged as an instrument of “carceral” discipline directed to training the mind or soul of the offender. It displaced an earlier form of “corporeal” discipline directed to the physical body. 98 Using Michel Foucault’s theoretical approach, Mark Finnane in Punishment in Australian Society traces these shifts through the demise of transportation and the emergence of “model prisons” in Australia. 99 The penitentiary incorporated the pervasive surveillance technology of Bentham’s Panopticon and social isolation of prisoners as a means of achieving “reform through suffering”: see [1.175]. This new architecture of penality was supported by the emerging disciplines of criminology and penology, which offered scientific explanations for offending that progressed from crude pathological or biological accounts, to more complex psychological explanations. 100 Such approaches are in stark contrast to the new Australian Capital Territory prison, which has been devised with the Human Rights Act 2004 (ACT) in mind. The prison is designed to offer opportunities for inmates to improve themselves whilst incarcerated, and to encourage behaviour which will help people when they are released back into the community. The Alexander Maconochie Centre (AMC) is named after Captain Maconochie, the humane superintendent and penal reformer of Norfolk Island from 1840–1843, who is credited with turning a “living hell” into an orderly penal establishment. 101

97 98 99 100

A Freiberg, “Australian Drug Courts” (2000) 24(4) Criminal Law Journal 213. M Foucault, Discipline and Punish: The Birth of the Prison (New York: Pantheon Books, 1977). See M Finnane, Punishment in Australian Society (Melbourne: Oxford University Press, 1997) Ch 2. See, generally, J Hirst, “The Australian Experience: The Convict Colony” in N Morris and D Rotham (eds), The Oxford History of the Prison (New York: Oxford University Press, 1998). [1.75]

23

Part I: Theory and Principles

Rehabilitation uses a medical or pathological model for determining the motivations and proper treatment of offenders. This approach searches for the latent abnormalities of offenders and then deems these correlated “characteristics” as the underlying causes of crime. Deviance (whether moral, social or legal) may be constructed in terms of a “sickness” that requires diagnosis and treatment. However, these pathological conditions are not objective categories existing independently from medico-legal discourse. As the construction, and subsequent de-construction, of “homosexuality” as a type of sexual disorder in the 20th century demonstrates, there is a complex relationship between law and medical science in defining and punishing deviance. 102 An emphasis on rehabilitation necessarily suppresses these wider historical, political and social forces shaping the process of criminalisation. In Chapter 14, we explore how the discovery of drug addiction as a disease in the late 19th century generated the “deficit model” of drug use that has continued to shape legal policy on illicit drugs through to the present day. By conceptualising drug use as a disease of addiction, the range of criminal justice interventions is limited to treatment options such as counselling, detoxification or maintenance programs. While the medical model undoubtedly has the capacity to blunt the criminal law, it has also diverted our attention away from controlled drug use and alternative market-based regulatory strategies, that are increasingly used to control other historical “vices” such as gambling and prostitution.

Rehabilitation as the principal purpose of punishment? [1.80] Article 10(3) of the International Covenant on Civil and Political Rights (1966), reflecting the then dominant social conception of crime and offending, prioritises, through treatment, the reform and rehabilitation of prisoners as the principal purpose of imprisonment: “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.”

Incapacitation [1.85] Nigel Walker suggests that the “incapacitation” of those known to be dangerous

should be regarded as a justification that is as sound as retributive notions of “just deserts” and proportionality, or notions of deterrence and the need for treatment. 103 Capital punishment was of course the ultimate form of incapacitation. The modern idea of incapacitation, removing the means and opportunity for future criminal offending, is linked with assessments of risk and dangerousness. 104 The criminal law has a long history of regulating dangerous subjects, even authorising indefinite detention without proof of guilt. The paradigm example is the law’s response to persons suffering mental impairment who 101

102

103 104

For an assessment of Alexander Maconochie’s contribution to modern prison reform, see N Morris, Maconochie’s Gentlemen: The Story of Norfolk Island and the Roots of Modern Prison Reform (New York: Oxford University Press, 2002). On the changing medico-legal status of homosexuality, and the political movement within psychology and psychiatry to remove it as a sexual disorder, see E Shorter, A History of Psychiatry (New York: Wiley, 1997). See also L Moran, The Homosexual(ity) of Law (London: Routledge, 1996); and C Stychin and D Herman, Sexuality in the Legal Arena (London: The Athlone Press, 2000). N Walker, “Unscientific, Unwise, Unprofitable or Unjust?” (1982) 22 British Journal of Criminology 276. For a review of these special laws, targeting habitual criminals, see J Pratt, Governing the Dangerous: Dangerousness, Law and Social Change (Sydney: Federation Press, 1997).

24 [1.75]

Theory and the Criminal Law

Ch 1

engaged in conduct that, but for lack of capacity, would constitute a criminal offence. As persons acting without criminal responsibility cannot be punished, the criminal law struck a balance between individual justice and public safety by recognising a verdict of “not guilty by reason of insanity”. This “qualified acquittal” has justified the detention of persons for an indefinite duration in secure psychiatric institutions since the 19th century: see Chapter 4, [4.75]. The scope of preventive detention has expanded further with the advent of “dangerous offenders” laws that permit detention beyond the term of the original sentence for preventive as opposed to punitive purposes. 105 In Veen v The Queen (No 2), Deane J foreshadowed the development of these preventive measures in the following terms: “The protection of the community obviously warrants the introduction of some acceptable statutory system of preventive restraint to deal with the case of a person who has been convicted of violent crime and who, while not legally insane, might represent a grave threat to the safety of other people by reason of mental abnormality if he [or she] were to be released as a matter of course at the end of what represents a proper punitive sentence. Such a statutory system could, one would hope, avoid the disadvantages of indeterminate prison sentences by being based on periodic orders for continuing detention in an institution other than a gaol and provide a guarantee of regular and thorough review by psychiatric and other experts.” 106

The protection of the community as a justification for incapacitating “dangerous” individuals has been criticised for punishing individuals for what they might do, rather than for what they have done. 107 As Anthony Duff and David Garland have observed: “It is wrong, in principle, to punish offenders for their predicted future conduct: they should be punished for what they have done, not in respect of what they will or might do. We should treat individuals (unless they are insane) as moral agents who can choose whether or not to desist from future crimes.” 108

The contested nature of incapacitation as a purpose of sentencing is apparent in the changing views of the Australian Law Reform Commission (ALRC) on the issue. In its 1988 Report, the ALRC rejected incapacitation as a legitimate purpose of sentencing for reasons similar to those of Duff and Garland. 109 By 2006, the ALRC had reversed its position in its report on federal 105

106 107

108 109

The origins of these laws in Victoria are discussed in P Fairall, “Violent Offenders and Community Protection in Victoria—The Gary David Experience” (1993) 17(1) Criminal Law Journal 40. The doctrine of institutional integrity implied into the Federal Constitution prevents the executive or legislature usurping judicial functions or bestowing non-judicial functions on State courts in order to maintain their “essential characteristics” as repositories of federal judicial power. The High Court has held that an order of involuntary detention of a penal or punitive character that was not imposed pursuant to a judicial determination of guilt violated the separation of powers doctrine: Kable v DPP (NSW) (1996) 189 CLR 51; P Fairall, “Before the High Court: Imprisonment without Conviction in New South Wales: Kable v Director of Public Prosecutions” (1995) 17(4) Sydney Law Review 573. The Kable doctrine has required the legislature to draft new preventive laws with these institutional limitations in mind. In Fardon v Attorney-General (Qld) (2004) 223 CLR 575, the High Court upheld the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) as it had made provision for the operation of adversarial processes, placing the burden on the State to establish a sufficient degree of risk to justify detention: see O Roos, “Baker v The Queen & Fardon v Attorney General for the State of Queensland” (2005) 10(1) Deakin Law Review 271. Other jurisdictions have since enacted similar legislation: see Crimes (High Risk Offenders) Act 2006 (NSW), Serious Sex Offenders (Detention and Supervision Act) 2009 (Vic), Criminal Law (High Risk Offenders) Act 2015 (SA), Serious Sex Offenders Act (NT) and Dangerous Sexual Offenders Act 2006 (WA). Veen v The Queen (No 2) (1988) 164 CLR 465 at 495. See, for example, CR Williams, “Psychopathy, Mental Illness and Preventive Detention” (1990) 16(2) Monash University Law Review 161 at 168, 178; Victorian Sentencing Committee, The Report of the Victorian Sentencing Committee, Vol 1 (Melbourne: Attorney-General’s Department, 1988) pp 120–121. A Duff and D Garland, A Reader on Punishment (Oxford: Oxford University Press, 1994) p 239. Australian Law Reform Commission, Sentencing, Report No 44 (1988). [1.85]

25

Part I: Theory and Principles

sentencing law. 110 The ALRC’s reversal reflects the growing acceptance of the need to protect society, by means of incapacitation, from dangerous recidivists. 111

Empirical claims about punishment: fact and fiction? [1.90] Scholars have searched for empirical evidence to support the claims that punishment effectively promotes incapacitation, deterrence and rehabilitation. Mirko Bagaric, for example, found that there was little empirical evidence to support the effectiveness of any of these aims except for general deterrence. 112 Since general deterrence is the only effective basis for punishment, specific deterrence and rehabilitation should be abolished as sentencing objectives. Bagaric’s empirical claims relied on a historical analysis of outbreaks of lawlessness during police strikes, including the strike in Melbourne in 1923. With the removal of the police and, therefore, the threat of punishment for wrongdoing, the bonds of civil society dissolved and anarchy inevitably followed. This finding supports his conclusion that: “Experience shows that absent the threat of punishment for criminal conduct, the social fabric of society would readily dissipate. Crime would escalate and overwhelmingly frustrate the capacity of people to lead happy and fulfilled lives. Thus while there is only one objective of punishment which the utilitarian can invoke [general deterrence], this is more than sufficient to justify the practice of State imposed unpleasantness on those who violate the criminal law.” 113 Drawing on similar historical evidence of the effect of police strikes, Don Weatherburn concluded that increasing the likelihood of apprehension and punishment acts as a “very substantial deterrent to offending”. 114 While there is uncertainty about the empirical foundation for existing theories, this analysis of the instrumental effect of punishment, like much of the discourse he critiques, is over-determined. Both Bagaric and Weatherburn ignored the other forces that operated to encourage the conditions of lawlessness during police strikes—in the context of the Melbourne police strike in 1923, these forces were most obviously the social and economic conditions caused by the mass demobilisation of soldiers at the end of World War I, and the onset of the Great Depression. Rather than search for an explanation and justification of punishment in narrowly instrumental terms, it may be more fruitful to explore the symbolic dimensions of punishment.

Restorative justice [1.95] There is a growing international social movement in favour of reconstructing criminal

justice to promote “restorative justice”. Under this increasingly influential model, the search for legitimacy is redirected away from the State and its power to punish towards communitybased initiatives that offer the prospect of reintegration and restoration for offenders, victims

110 111 112 113 114

Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) [4.14]–[4.17], [4.27]. CR Williams, “Psychopathy, Mental Illness and Preventive Detention” (1990) 16(2) Monash University Law Review 161 at 178. M Bagaric, “Incapacitation, Deterrence and Rehabilitation: Flawed Ideals or Appropriate Sentencing Goals?” (2000) 24(1) Criminal Law Journal 21. M Bagaric, “Incapacitation, Deterrence and Rehabilitation: Flawed Ideals or Appropriate Sentencing Goals?” (2000) 24(1) Criminal Law Journal 21 at 45. D Weatherburn, Law and Order in Australia (Sydney: Federation Press, 2004) p 84.

26 [1.90]

Theory and the Criminal Law

Ch 1

and communities affected by crime. There is a wealth of literature exploring, from both practical and theoretical perspectives, the emergence of restorative justice as an effective alternative to retributive forms of justice. 115 Notwithstanding
the
influence
of
restorative
justice
in
Australia,
Canada,
New
Zealand
and
the
United
Kingdom,
it
has
had
less
impact
in
the
United
States
where
criminal
justice
theorists
assert
that
retributivism
is
the
dominant
orthodoxy
among
Anglo-American
scholars.
Indeed,
George
Fletcher
in
his
influential
treatise
on
American
criminal
law
posited
only
two
models
of
punishment:
the
principal
model
of
“retributive
justice”
and
the
alternative
model
based
on
“social
protection”
(under
which
Fletcher
groups
deterrence,
rehabilitation,
medical
treatment,
welfare,
public
or
community
safety
etc).
116
Bearing
in
mind
the
loss
of
faith
in
rehabilitation
in
the
United
States,
it
is
unsurprising
that
Fletcher
ultimately
favoured
the
idea
that
it
is
for
wrongdoing
that
punishment
is
imposed.
The
failure
to
explore
the
rise
of
restorative
justice
elsewhere
undoubtedly
weakens
the
claims
of
universalism
inherent
within
his
grand
theorising.
117 It is difficult to give a simple definition of restorative justice because it emerged as a “unifying banner”, encompassing a wide range of methods and goals. 118 One frequently used definition is that restorative justice “is a process whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future”. 119 Restorative justice practices have a number of goals, including: • that offenders confront and accept responsibility for their conduct and its consequences; • that families and communities surrounding the protagonists play a role in both reintegration and support for both the victim and the offender; and • to provide a resolution for disputes. 120 Put simply, the focus of restorative justice is inclusive participation, reparation and resolution. Declan Roche suggests that “the best known element and centrepiece of restorative justice is the meeting, which brings together those people affected by a particular offence to decide on a consensual basis how to deal with the aftermath of that offence”. 121 In Australia, this occurs through the convening of a “conference” where offenders are brought together with the victims of their crime, usually with their respective families and a facilitator, to discuss the impact of their actions on the victim and the community, as well as ways to repair the harm done. 115

See, for example, H Strang and J Braithwaite (eds), Restorative Justice: Philosophy to Practice (Aldershot: Ashgate, 2000); D Roche, Restorative Justice (Aldershot: Ashgate, 2000); J Braithwaite, Restorative Justice and Responsive Regulation (Oxford and New York: Oxford University Press, 2002). For a useful collection of key publications in this field, see G Johnstone (ed), A Restorative Justice Reader (Devon: Willan, 2003).

116 117

G Fletcher, The Grammar of Criminal Law (Oxford: Oxford University Press, 2007). See further, S Bronitt, “Towards a Universal Theory of Criminal Law: Rethinking the Comparative and International Project” (2008) 27 Criminal Justice Ethics 53. For a more general discussion on the interplay between restorative justice and globalisation, see C Cunneen, “Understanding Restorative Justice Through the Lens of Critical Criminology” in T Anthony and C Cunneen (eds), The Critical Criminology Companion (Sydney: Hawkins Press, 2008). D Roche, Accountability in Restorative Justice (Oxford and New York: Oxford University Press, 2003) p 6. T Marshall, “Restorative Justice: An Overview” in G Johnstone (ed), A Restorative Justice Reader (Devon: Willan, 2003) p 28. See also L Walgrave, “Extending the Victim Perspective Towards a Systemic Restorative Justice Alternative” in A Crawford and J Goodey (eds), Integrating a Victim Perspective within Criminal Justice (Aldershot: Ashgate, 2000), who describes restorative justice broadly as “action that is primarily oriented towards doing justice by restoring the harm that has been caused by a crime”: p 260.

118 119

120

121

K Daly and H Hayes in “Restorative Justice in Conferencing in Australia”, Australian Institute of Criminology: Trends and Issues in Crime and Criminal Justice No 186 (Canberra: Australian Institute of Criminology, 2001). D Roche, Accountability in Restorative Justice (Oxford and New York: Oxford University Press, 2003) p 2. [1.95]

27

Part I: Theory and Principles

Diversionary conferencing is widely used for dealing with juvenile offending in many jurisdictions, as well as informing an increasing array of pre-trial and post-conviction decision-making by police, prosecutors and the courts. For example, the Young Offenders Act 1997 (NSW) establishes a system of youth justice conferencing as a diversionary program from the children’s court, administered by the Department of Juvenile Justice. Important pre-conditions apply: the participant must admit guilt to the offence, and there must be consent by all parties. The stated aims of the Act are to: • emphasise restitution by the offender; • emphasise the acceptance of responsibility by that person for his or her behaviour; and • meet the needs of victims and offenders: s 3(c)(ii), (iii). An evaluation conducted 12 months after the introduction of the Act found that most of the conferences met the Act’s objectives and aims. The report found high levels of satisfaction with the conference experience from all participants (that is, the victims, victims’ supporters, offenders and offenders’ supporters). More than 90% of all parties felt that the conference was fair to both the victim and the offender; over 90% felt they had the opportunity to express their views, while 79% said they were satisfied with the way their case had been dealt with by the justice system. 122 Table 1 Restorative justice in Australia Jurisdiction ACT

Provision

Applies to

Offences excluded

Crimes (Restorative Justice) Act 2004

eligible offenders who are at least 10 years old

NSW

Young Offenders Act 1997 Youth Justice Act 2005; Police Administration Act 1978 Youth Justice Act 1992

juvenile offenders only

adult offenders: domestic violence offences child offenders* (before the phase 2 application day): domestic violence offences and less serious sexual offences sexual offences, offences causing death, some drug offences, AVO offences and some traffic offences

NT

Qld SA

Young Offenders Act 1993 Youth Justice Act 1997

Tas Vic WA

no statutory basis Young Offenders Act 1994

juvenile offenders only

juvenile offenders and some eligible adults juvenile offenders only juvenile offenders only juvenile offenders only juvenile offenders only

sexual offences, serious violence and domestic violence offences none none traffic offences, serious violence, sexual offences, and dangerous weapons offences drink-driving offences driving offences, serious violence and sexual offences

Restorative justice conferencing has been adopted in all Australian jurisdictions, though thus far its use has been mainly confined to less serious instances of juvenile offending. Conferencing may be made available more broadly to deal with adult offending and more serious types of crime. For example, the Australian Capital Territory is one of the few jurisdictions to extend conferences to adults. Rather than apply an ad hoc administrative

122

L Trimboli, An Evaluation of the NSW Youth Justice Conferencing Scheme (Sydney: NSW Bureau of Crime Statistics and Research, Attorney-General’s Department, 2000). There is extensive literature evaluating trials carried out in Australia, the USA, Canada and New Zealand: see H Strang, Restorative Justice Programs in Australia: A Report to the Criminology Research Council (Canberra: Australian National University, 2001) and J Braithwaite, “Restorative Justice” (1999) 25 Crime and Justice: A Review of Research 1 for extensive reviews. Generally, the literature reports extremely high levels of perceived procedural justice. Some record further benefits to the victims and the offenders, as well as the community.

28 [1.95]

Theory and the Criminal Law

Ch 1

approach to restorative justice conferencing, the Territory enacted a comprehensive statute governing restorative justice processes. The Crimes (Restorative Justice) Act 2004 (ACT) defines its objects in section 6 as follows: (a) to enhance the rights of victims of offences by providing restorative justice as a way of empowering victims to make decisions about how to repair the harm done by offences; (b)

to set up a system of restorative justice that brings together victims, offenders and their personal supporters in a carefully managed, safe environment;

(c)

to ensure that the interests of victims of offences are given high priority in the administration of restorative justice under this Act; to enable access to restorative justice at every stage of the criminal justice process without substituting for the criminal justice system or changing the normal process of criminal justice;

(d)

(e)

to enable agencies that have a role in the criminal justice system to refer offences for restorative justice. Under the Act, restorative justice is available for acts deemed eligible under Pt 4 when: • there is an eligible victim or eligible parent in relation to the offence; • the offender is an eligible offender; • the offence is referred for restorative justice by a referring entity; and • the director-general decides that restorative justice is suitable for the offence: s 8. The Act seeks to address many of the concerns that conferencing processes and agreements between the parties lacked transparency and accountability. 123 To be eligible under Pt 5 of the ACT Act, victims must be at least 10 years old and capable of agreeing to take part: s 17(1). If a victim is younger than 10 years old, an immediate family member may be eligible: s 18(2). Alternatively, a parent of a child victim of an offence may take part in restorative justice as an invited participant: s 44. Offenders must have been at least 10 years old when the offence was committed and are eligible if they accept responsibility for the commission of the offence, are capable of agreeing to take part, and do agree to take part: s 19. It is important to recognise the limitations, as well as the benefits, of restorative justice. In a thorough review of restorative justice literature, John Braithwaite has outlined the key arguments for and against restorative justice processes. 124 His arguments 125 are summarised in Table 2. In addition to these arguments raised by Braithwaite, Chris Cunneen has expressed concern over the tendency for risk assessment screening tools to exclude marginalised groups from restorative justice programs. Robust screening processes as used in Australia and Canada assess risk by looking at individual factors such as the age of first court order, prior offending history, and failure to comply with court orders—factors which, “through the miracle of statistics”, exclude the most marginalised groups in society on the basis of “risk”. 126 Additionally, there will be cases where the offender simply cannot be “restored”. In such cases, conventional approaches to guilt determination and punishment may be reinstated, though proponents of restorative justice would permit incapacitation only as a measure of last resort. Braithwaite has innovatively devised a calibrated approach to sanctions, which mirrors his 123 124 125 126

For a critical examination of these concerns about accountability, see D Roche, Accountability in Restorative Justice (Oxford: Oxford University Press, 2003). J Braithwaite, “Restorative Justice” (1999) 25 Crime and Justice: A Review of Research 1. J Braithwaite, “Restorative Justice” (1999) 25 Crime and Justice: A Review of Research 1 at 101. C Cunneen, “Understanding Restorative Justice Through the Lens of Critical Criminology” in T Anthony and C Cunneen (eds), The Critical Criminology Companion (Sydney: Hawkins Press, 2008) p 299. [1.95]

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regulatory enforcement pyramid discussed at [1.245]. As he concludes, coercive control becomes legitimate only when other more dialogic forms (using restorative justice or deterrence) have been tried but have failed to secure compliance with the law. Table 2 Arguments for and against restorative justice Supporting arguments Restorative justice practices may restore and satisfy victims, offenders and communities better than existing criminal justice practices Restorative justice practices may reduce some forms of crime more and rehabilitate offenders better Conferences are structurally fairer due to the nature of participation Engenders greater procedural justice, which in turn communicates respect Conferencing is more cost-effective Restorative justice practices enrich freedom and democracy

Opposing arguments Participation provides no benefits to unknowing victims (that is, the criminal justice system only applies in 10% of offences committed) Because more than 90% of crimes are untouched by State processes, it may have no significant impact on the crime rate In some cases, it may increase victims’ fears of re-victimisation It can make victims props for attempts towards offender rehabilitation It can be a “shaming machine” that worsens stigmatisation It may widen nets of social control (though Braithwaite found this not to be the case in Australia or New Zealand) It fails to redress structural problems inherent in liberalism, like unemployment and poverty It may disadvantage women, children, racial minorities It may “trample rights because of impoverished articulation of procedural safeguards”

Source: J Braithwaite, Restorative Justice and Responsive Regulation (New York: Oxford University Press, 2002) p 32.

The implications of restorative justice for the substantive criminal law have also been explored by John Braithwaite in an imaginative essay called “Intention versus Reactive Fault”. 127 He argues that the focus on intention in the criminal law, from both normative and sociological perspectives, is mistaken. Consistent with the ideals of restorative justice, he sketches a model of restorative fault called “reactive fault”. Since restorative justice focuses primarily on the physical aspects (actions and consequences) of offending behaviour, attention is shifted from “fault which is causally prior to the crime, of which intention is the most important variant, to fault based on how restoratively the offender acts after the crime”. 128 Under this model, which builds on earlier work with Brent Fisse on corporate crime, Braithwaite suggests that fault for criminal liability should be determined “reactively, on the basis of the constructiveness and restorativeness of his [or her] reaction to the problem caused by his [or her] act”. 129 If the reaction was sufficiently restorative, then only civil liability would apply. Braithwaite is not, however, arguing that mental states be abandoned: where the conduct is not sufficiently restorative, then the mental element for the crime would have to be established before or during its commission. The extent to which the offender reacts restoratively would, of course, be crucial to the imposition of penalty. With the dominance of subjective fault in the criminal law, the theory of reactive fault would require a profound readjustment in our approach to fault, though it must be acknowledged that many existing legal doctrines, such as the law relating to omissions, already “stretches” the concept of “act” to impose liability that is 127 128 129

J Braithwaite, “Intention versus Reactive Fault” in N Naffine, R Owens and J Williams (eds), Intention in Law and Philosophy (Aldershot: Ashgate, 2001) Ch 16. J Braithwaite, “Intention versus Reactive Fault” in N Naffine, R Owens and J Williams (eds), Intention in Law and Philosophy (Aldershot: Ashgate, 2001) p 345. J Braithwaite, “Intention versus Reactive Fault” in N Naffine, R Owens and J Williams (eds), Intention in Law and Philosophy (Aldershot: Ashgate, 2001) p 351. Braithwaite’s model was influence by the earlier work of Brent Fisse: see “Reconstructing Corporate Criminal Law: Deterrence, Retribution, Fault, and Sanctions” (1983) 56(6) Southern California Law Review 1141.

30 [1.95]

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tantamount to reactive fault: see the discussion in Chapter 3, [3.370] “Fault element imposed upon a continuing act”. As Braithwaite concludes: “Restorative justice is much more than just a new technology of disputing”. 130

Sociological perspectives Punishment [1.100] David Garland in Punishment and Modern Society conceives of punishment as a social and cultural institution, rather than merely as an instrument of State coercion. This approach provides a more complex and useful understanding of the multiple roles and meanings of punishment in modern society. Garland set out to develop a comprehensive theory drawing on insights from earlier theorists, including Durkheim, Foucault, “the Marxists” and others. In reviewing the various theories of punishment over the 20th century, he highlights a number of weaknesses in earlier accounts. In Garland’s view, penality “communicates meaning not just about crime and punishment, but also about power, authority, legitimacy, morality, personhood, social relations, and a host of other tangential matters”. 131 It has a powerful moralising effect: “Punishment expresses and projects a definite conception of social relations, holding out an imagery of the ways in which individuals relate—or ought to relate—to one another in society”. 132 Earlier approaches to punishment suffered from “over-determination”; that is, the tendency of theorists to subscribe to a “single causal principle or functional purpose for punishment be it ‘morals’ or ‘economics’, ‘State control’ or ‘crime control’”. 133 The complexity of punishment and its multiple layers of meaning—its polysemic quality—are inconsistent with mono-causal explanations. Instead of searching for a single explanatory principle, we need to grasp the facts of multiple causality, multiple effects and multiple meanings. 134 Garland suggests that punishment should be viewed as a “social institution” with expressive and symbolic aspects. 135 Punishment is, on the face of things, an apparatus for dealing with criminals—a circumscribed, discrete, legal-administrative entity. But it is also, as we have seen, an expression of State power, a statement of collective morality, a vehicle for emotional expression, an economically conditioned social policy, an embodiment of current sensibilities, and a set of symbols which display a cultural ethos and help create a social identity. Within modern legal systems, the symbolic value of punishment may be more important than its instrumental functions. When viewed in instrumental terms, punishment is a signal failure. This is because the most effective means of inducing social conformity—those processes of socialisation that are based on an internalised sense of morality, duty, trust, loyalty, shame and so on, lie outside the jurisdiction of existing penal institutions. Approached in this broader sociological way, punishment is no longer glorified as a functionally important social institution. Rather, its limitations and

130 131 132 133 134 135

J Braithwaite, “Intention versus Reactive Fault” in N Naffine, R Owens and J Williams (eds), Intention in Law and Philosophy (Aldershot: Ashgate, 2001) p 357. D Garland, Punishment and Modern Society (Oxford: Clarendon Press, 1990) p 252. D Garland, Punishment and Modern Society (Oxford: Clarendon Press, 1990) p 271. D Garland, Punishment and Modern Society (Oxford: Clarendon Press, 1990) p 280. D Garland, Punishment and Modern Society (Oxford: Clarendon Press, 1990) p 281. D Garland, Punishment and Modern Society (Oxford: Clarendon Press, 1990) p 287. [1.100]

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alternatives to punishment are exposed, “and to the extent that punishment is deemed unavoidable, it should be viewed as a morally expressive undertaking rather than a purely instrumental one”. 136 This sociological approach to punishment has profound implications for the criminal law. Recognition of the polysemic quality of punishment affects (or, rather, infects) the criminal law in many ways. Rather than be viewed as an instrument of retribution, deterrence, rehabilitation or incapacitation, the criminal law may be viewed as a part of a wider practice of cultural signification that contains and expresses multiple and contradictory meanings. A sociological approach suggests that greater attention needs to be paid to the range and diversity of the criminal law’s expressive functions. These functions include both the positive capacity to produce “normality” and conformity, as well as the negative capacity to suppress and stigmatise deviance. From this perspective, the criminal trial (including the law as propounded in the higher courts), far from being unimportant as early legal realists contended, assumes considerable significance as a site where fundamental “meanings” of the criminal law are expressed and contested. While theories of punishment have influenced the shape of the modern law, it is important to recognise that the criminal law need not necessarily be tied to the search for the legitimacy of State punishment. Although presented as a distinctive feature of criminal law, punishment does not always follow a finding of guilt. A conviction may be imposed without any painful or unpleasant consequences beyond the finding of guilt. Admittedly, condemnation as a “criminal” is an unpleasant consequence for most people. Even in relation to condemnation, however, a sentencing court may exercise its discretion not to record a conviction or to impose an entirely symbolic sentence of remaining in court until the next adjournment (known as a sentence imposed until the “rising of the court”): see Crimes (Sentencing Procedure) Act 1999 (NSW), s 10. These options acknowledge that the punitive effect of condemnation is neither always needed, nor in fact desirable.

Criminology and the Criminal Law [1.105] As a discipline, criminal law is occupied with the study and rationalisation of legal

doctrine, its rules and general principles. By contrast, criminology employs a wide range of external perspectives—drawing from sociology, history, economics, psychology, anthropology, and so on—to identify the causes of crime and to develop effective responses to “crime problems”. 137 Theories about crime are historically contingent, shaped and remodelled by a kaleidoscope of changing social, economic and political forces. 138 For criminal justice scholars writing in the so-called “Age of Enlightenment” during the 18th century, knowledge about crime and the operation of the criminal law was pursued through scientific rationality and classification. The model of a rational and ordered criminal law emerged as a reaction to the punitive and arbitrary nature of the criminal justice system of the previous century, where the criminal law 136 137

138

D Garland, Punishment and Modern Society (Oxford: Clarendon Press, 1990) p 292. Some criminologists tie the discipline firmly to the boundaries of the criminal law. Edwin Sutherland in Criminology (New York: Lippincott Co, 1974) viewed the discipline as concerned with the making, breaking and enforcement of the criminal law. Others adopt a wider focus that embraces social deviance generally: C McCormick, D Downes and P Rock, Understanding Deviance (Oxford: Oxford University Press, 2009). For an overview of the various schools of criminological thought, see R White, F Haines and N Asquith, Crime and Criminology (5th ed, Melbourne: Oxford University Press, 2012). The historical material in this section is based on B Mason, “From Shamans to Shaming: A History of Criminological Thought” in K Hazlehurst (ed), Crime and Justice (Sydney: Law Book Company, 1996) Ch 2.

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served primarily to instil legal terror in the lower orders through its draconian laws and extensive use of capital and brutal forms of corporal punishment, such as flogging. Against the backdrop of this “Bloody Code”, justice was not found in the fabric of substantive or procedural law, but rather was promoted post-conviction through sentence mitigation or executive clemency in the form of pardons or transportation. 139 At this time, the legitimacy of criminal law and punishment became the central focus of attention. In England, Jeremy Bentham, both a legal academic and campaigner for law reform, argued that deterrence was the only legitimate purpose for imposing criminal punishment. According to Bentham, the system of criminal law in England at that time was both ineffective and unjust. Primarily sourced from the common law, the criminal law was difficult to discover and subject to gross judicial manipulation in the courts. As Norrie noted, “Bentham called it ‘dog law’, for it condemned individuals after the event, in the way that a person punishes his [or her] dog. The dog only learns after the punishment that what it has done is wrong”. 140 Bentham’s insights had a number of consequences for the reform of criminal law and punishment. In the place of the common law, which rested on unwritten laws and arbitrary judicial discretion, Bentham instead proposed a rational and humane system of codified laws and fixed penalties. To maximise rationality and deterrence, there must be greater certainty and predictability in how the law operated. To that end, proportionality between the crime and the punishment was required. Under Bentham’s “utilitarian” approach, the self-interested citizen would conclude that the costs of punishment outweighed the benefits of crime and therefore make the rational decision to desist from its commission. Punishment was justified on the utilitarian theory of deterrence based upon an individual rational calculation of self-interest. Alan Norrie summarised this theory as follows: “In England, the utilitarian reformer Bentham wrote that mankind was placed under two sovereign masters, pain and pleasure, and possessed an innate tendency to avoid one and seek the other. The ability to calculate rationally the consequences of action combined with the pain/pleasure principle to enable the individual to maximise his [or her] self-interest.” 141

Laws must be certain and knowable to operate as an effective deterrent. To achieve this, Bentham advocated fervently for codification of law into the “Pannomion”, a comprehensive code covering constitutional, civil and penal laws. Promoting this utopian ideal widely, Bentham urged its adoption for the newly independent United States of America. Underpinning this project was Bentham’s belief in the universalism inherent in the project of codification: “The great outlines … will be found to be the same for every territory, for every race, and for every time.” 142 According to Bentham, enacting a criminal code supported by rational 139

140

141 142

A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) pp 20–21. See further EP Thompson, Whigs and Hunters: The Origins of the Black Act (London: Allen Lane, 1975). In the Australian context, the extent to which transportation constituted a form of punishment or an opportunity for rehabilitation is discussed in M Finnane, Punishment in Australian Society (Melbourne: Oxford University Press, 1997) Ch 1. A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) p 24. Bentham’s preference for legislation over common law stood in stark contrast to the earlier views of Blackstone, who eulogised the common law in Commentaries on the Laws of England (9th ed, London: Garland, 1978) (first published, 1765). A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) p 23. J Bentham, cited in M Kayman, “A Memorial for Jeremy Bentham: Memory, Fiction, and Writing the Law” (2004) Law and Critique 207 at 210. For a discussion of Bentham’s Pannomion project, see S Bronitt and M Gani, “Criminal Codes in the 21st Century” in B McSherry, A Norrie and S Bronitt (eds), Regulating Deviance (Portland: Hart Publishing, 2009) pp 239–243. [1.105]

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punishments would reduce crime to virtually nil. Although Bentham’s ambitions for codification of the criminal law were unsuccessful in “codiphobic” England, they did take root in Continental Europe, in Australia, and other British colonies in the 19th and 20th centuries. We explore the differences between Code and common law jurisdictions in Chapter 2, [2.15]. The impact of these liberal utilitarian values on law has been significant and enduring. The modern criminal law is stamped throughout with liberal assumptions about “free will” and “rationality” as measures of culpability. The emergence of the “reasonable man” in both the civil and criminal law may be viewed as the fictive embodiment of the rational, self-interested, utility-calculating person against whom the conduct of the defendant will be judged. 143 The influence of this conception of human action has been profound, constituting “the major model of human behaviour held to by agencies of social control in all advanced industrial societies”. 144

Criminological perspectives Free Will Versus Determinism [1.110] Bentham’s theories concerning the criminal law coalesced with the new science of crime—criminology—emerging in Continental Europe. The emergence of this new discipline concerned with the nature and cause of crime is tied to the history of the bickering Italian “schools” of the 18th and 19th centuries. The father of the “Classical School of Criminology”, Cesare Beccaria, published an acclaimed Essay On Crimes and Punishments in 1764 145 which set out a manifesto for criminal justice reform. Beccaria, like Bentham, wrote against the backdrop of an arbitrary and severe criminal justice system. His conception of crime was rooted in the liberal values of the Enlightenment—crime was explained as a matter of free choice exercised by rational individuals, rather than being caused by evilness or the supernatural forces. Both Beccaria and Bentham shared the view that the criminal law must incorporate the “principle of hedonism”—that is, since humans are possessed of free will and rational choice, they will choose to obey the law because the pain of punishment will outweigh the pleasure derived from rule-breaking. To minimise interference with individual freedom, the punishment meted out must be no more than is necessary to prevent or deter crime. Arguments about the perceived value of deterrence from explanatory and moral perspectives have waxed and waned with criminological theories about the nature of crime and criminals. The liberal values and optimism of the “Classical School” was dented by the emergence of the rival “Positivist School”. The father of Positivism, Cesare Lombroso (1835–1909), explained criminal behaviour in biological terms. By measuring the skulls of cadavers, Lombroso observed that features of convicted criminals had “atavistic anomalies”—they appeared primitive and inferior. He therefore hypothesised that individuals were born “criminal” and that this was part of their nature (pathology and biology). To modern eyes, Lombroso’s “science” based on observations from decomposing corpses hardly seems credible, but, at the time, it seemed a natural implication drawn from Charles Darwin’s theory of human evolution. As a form of “social Darwinism”, Positivism had implications for the criminal law: 143 144 145

A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) pp 24–29. I Taylor, P Walton and J Young, The New Criminology (London: Routledge and Kegan Paul, 1973) pp 9–10. C Beccaria, An Essay on Crimes and Punishments (London: F Newberry, 1770, first published 1764).

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“As the criminal’s behaviour was largely determined by factors such as biology, the needs of society could best be served by adopting measures to prevent the criminal from committing further offences. For ‘born criminals’ elimination or incapacitation (and, later, medical correction of defects) was the only answer. Rehabilitation was useless where defects could not be altered.” 146

In the Australian context, these competing conceptions of crime and criminals served to polarise and sustain a division in early colonial society between the free-born colonists (The Exclusives) and those who bore the “convict stain”—the transported convicts and their descendants (The Emancipists). 147 By the middle of the 20th century, Positivism had been thoroughly discredited as a result of its flirtation with fascism in the 1930s, which lent scientific credence to eugenic programs and ultimately, in some cases, to genocide for “inferior” human races. In the post-war period, biological explanations of criminal behaviour gave way to social or sociological explanations. These “modern schools” viewed crime as a social phenomenon that was, to some degree, determined beyond the capacity of the individual to freely resist. It was in a social, rather than biological sense, that crime was determined. A broader range of theories emerged, united in the hypothesis that the roots of crime lie in social structures and institutions. Theories like Edwin Sutherland’s “theory of differential association” suggested that criminal behaviour was “learned”, in that, through interaction with others who advocate crime, deviance for some individuals is normalised and encouraged. 148 Other theories stressed the causative role of social alienation and social, economic and political powerlessness. Drawing on Durkheim’s theory of “anomie”, Robert Merton viewed crime as a product of the discrepancy (or strain) between the aspirations of an individual and the means and opportunities available for achieving them. The weakness of the “strain theory” was that it predicted “too little bourgeois criminality and too much proletarian criminality”. 149 The post-war period was confronted by a “crisis of aetiology and penality”—notwithstanding the emergence of the welfare state, improving standards of education and prosperity, crime levels continued to rise. 150 At this time, the State, and its role in defining crime, also became a focus of study. Rather than search for “causes” of crime, researchers explored the State’s role in construction of deviance and the “labelling” of crime. Crime did not exist, in an objective or natural sense, separate from the laws defining and enforcing crime: “deviance is not a quality of the act the person commits, but rather a consequence of the application by others of rules and ‘sanctions’ to the

146 147 148

149 150

B Mason, “From Shamans to Shaming: A History of Criminological Thought” in K Hazlehurst (ed), Crime and Justice (Sydney: Law Book Company, 1996) p 20. D Neal, The Rule of Law in A Penal Colony (Cambridge: Cambridge University Press, 1991) Ch 2. Discussed in B Mason, “From Shamans to Shaming: A History of Criminological Thought” in K Hazlehurst (ed), Crime and Justice (Sydney: Law Book Company, 1996) pp 22–24. This theory had the advantage of explaining working-class crime and “white collar” crime committed by persons of high social class. I Taylor, P Walton and J Young, The New Criminology (London: Routledge and Kegan Paul, 1973) p 107. J Young, “Incessant Chatter: Recent Paradigms in Criminology” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (2nd ed, Oxford: Oxford University Press, 1997) pp 480–482. [1.110]

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offender”. 151 Accordingly, the role of the State in responding to moral panics, spawning new categories of crime and criminals, such as “hooliganism”, became the subject of study. 152 The idealism of “New Criminology” in the 1970s went even further, viewing criminality and criminalisation as essentially political acts of resistance and control respectively. 153 Criminal behaviour, it was argued, is normal and natural, merely an assertion of human diversity in a society of inequality of wealth, power and property. Criminality, on the other hand, is merely a social construct invented by the powerful to protect the interests of capital. As crime is a function of the existing social, economic and political arrangements, it would disappear when these inequalities were eradicated. Needless to say, this revolutionary Marxist idealism was short-lived. Left realist criminology emerged as a reaction to this leftist extremism, regaining political credibility by “taking crime seriously”. It aimed to be faithful to the reality of crime, recognising that victims, as well as offenders, were also drawn from the powerless sections of society. Left realism is critical of the partial approach of left idealism and its tendency to separate the causes of crime from reactions by the criminal justice system. This involves a synthesis of approaches, recognising that “all crimes must, of necessity, involve rules and rule breakers (that is, criminal behaviour and reaction against it) and offenders and rule breakers”. 154 Left realism is concerned with restoring the offender to the picture; while avoiding the biological reductionism of the past, left realists do not reject the correlations between biology and crime, whether that involves body size, hormones, size and age. Put simply, there are “facts” about crime that any theory ought to fit—such as the fact that crime is committed disproportionately by individuals who are male and young, aged between 15–25 years. 155 With an increasing sense that “nothing works”, some academics abandoned criminology as a flawed discipline. 156 Other criminologists, rejecting “social” accounts of crime, returned to the classical ideas, such as James Q Wilson’s revival of deterrence and free will theories of crime in the United States in the 1970s, discussed at [1.65]. Others have sought to identify the causes of crime in the deficits and characteristics of individuals, denying any relationship between crime and broader social structures. Avoiding biological positivism’s over-determined approach to crime, these theorists established a multiplicity of “causal relations” between

151 152 153 154 155 156

Howard Becker, cited in B Mason, “From Shamans to Shaming: A History of Criminological Thought” in K Hazlehurst (ed), Crime and Justice (Sydney: Law Book Company, 1996) p 29. S Cohen, Folk Devils and Moral Panics (London: Paladin, 1973). I Taylor, P Walton and J Young, The New Criminology (London: Routledge and Kegan Paul, 1973). J Young, “Left Realist Criminology” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (2nd ed, Oxford: Oxford University Press, 1997) p 485. J Braithwaite, Crime, Shame and Reintegration (Cambridge: Cambridge University Press, 1989) Ch 3. Carol Smart has argued that criminology is a problematic enterprise which marginalises the significance of gender and, thus, has little to offer feminism: Law, Crime and Sexuality (London: Sage Publications, 1995) Chs 2–3.

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crime and other factors, including: genetics; low intelligence; inadequate child-rearing; inadequate single mothers; and inadequate socialisation in the first five years of life. 157 There have also been attempts to synthesise free will and determinist theories of criminal behaviour. According to these accounts, while people do exercise choice over whether or not to commit crime, social and biological conditions may impose constraints on the choices available. This search for synthesis and comprehensive theory is evident in J Wilson and R Herrnstein’s Crime and Human Nature. In this book, which became criminology’s first “best-seller”, the authors highlight the importance of “constitutional factors”, such as low IQ, in explaining patterns of crime: “Social forces cannot deter criminal behavior in 100 percent of a population, and that the distributions of crime within and across societies may, to some extent, reflect underlying distributions of constitutional factors … crime cannot be understood without taking into account individual predispositions and their biological roots.” 158

These forms of determinism are less crude than their positivist forebears. Crime is a matter of free choice, albeit exercised within a biologically and socially determined framework. However, as a general theory, it has significant limitations. As Braithwaite observes, it cannot account for the massive reality of “white collar” crime. 159 The search for synthesis has occupied criminologists on both the right and left sides of politics. In striving for this complex synthesis, Jock Young offers the following definition of crime: “As an activity, crime involves a moral choice at a certain point in time in changing determinant circumstances. It has neither the totally determined quality beloved of positivism, nor the wilful display of rationality enshrined in classicist legal doctrine. It is a moral act, but one which must be constantly assessed within a determined social context. It is neither an act of determined pathology, nor an obvious response to desperate situations. It involves both social organization and disorganization.” 160

Such broad statements demonstrate the futility of criminology as an enterprise that searches for singular or universal truths about “crime”. Critical scholars who have come to reject criminology, such as Carol Smart, have doubted the value of Young’s “synthesis”. 161 As Jock Young’s definition itself concedes, the reasons for deviance and conformity are more complex and varied than any single “school” of criminology, theory or model of human behaviour can explain. Notwithstanding criminology’s increasingly pluralistic (and post-modern) explanations of crime, the criminal law clings firmly to assumptions about the rationality and free will of offenders. As subsequent chapters will reveal, the presumptions of rationality and free will underscore many of the key principles of criminal responsibility. The idea that these behavioural attributes are “typical” or “normal” is not supported by empirical research. 157

158 159 160

161

These theorists are discussed in J Young, “Incessant Chatter: Recent Paradigms in Criminology” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (2nd ed, Oxford: Oxford University Press, 1997) pp 479–480. For an overview of the influence of the classical, neo-classical, positivist and critical schools of criminology, see Stephen Jones, Criminology (5th ed, Oxford: Oxford University Press, 2013) esp Part II. See discussion in B Mason, “From Shamans to Shaming: A History of Criminological Thought” in K Hazlehurst (ed), Crime and Justice (Sydney: Law Book Company, 1996) pp 34–35. J Braithwaite, Crime, Shame and Reintegration (Cambridge: Cambridge University Press, 1989). J Young, “Incessant Chatter: Recent Paradigms in Criminology” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (2nd ed, Oxford: Oxford University Press, 1997) p 106. For a useful collection of essays reviewing the key disciplinary and theoretical debates within the discipline, see M Bosworth and C Hoyle (eds), What is Criminology? (Oxford: Oxford University Press, 2011). C Smart, Law, Crime and Sexuality (London: Sage Publications, 1995) pp 38–39. [1.110]

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Recent studies suggest that many (if not most) offenders processed before the courts have committed their crime while under the influence of alcohol and/or illicit drugs, casting doubt on the presumption that criminal conduct is the product of a rational mind possessed of free will: see Chapter 4, [4.155]. That said, legal academics, law reformers, politicians and judges nevertheless place great weight on the liberal values of clarity and predictability in deterring crime and promoting a more effective and just criminal law. We may reasonably conclude that the assumptions about human behaviour that inform legal doctrine are truly normative ideals derived from liberalism, rather than explanatory truths supported by empirical study. There is nothing wrong with striving for a criminal law that promotes liberal values and setting standards which individuals should comply with. Indeed, we shall explore how republican theorists have set out to rehabilitate liberalism as a normative guide for the criminal law and criminal justice reform: see [1.235] “Social freedom and Republican theories of criminal justice”. The problem with existing approaches to the criminal law is that liberal and individualistic assumptions about agency and responsibility are represented as universal truths, rather than as normative ideals that are politically and morally contestable. The failure to consider criminology and other external perspectives can blind lawyers, judges, legislatures and reformers to the complexities of crime and the effects of criminalisation. Law reform is weakest when conceived solely as an exercise in improving the internal rationality and coherence of the law. As we shall explore in Chapter 14, [14.10], in its examination of serious drug offences in Australia in the 1990s, the Model Criminal Code Officers Committee undertook a detailed analysis of existing offences and confiscation powers. However, the Committee’s report did not address significant issues relating to criminalisation such as: • the historical development of drug offences; • the rationale for criminalisation; • the validity of the distinctions drawn between different drugs and types of users; • the relevance of culture and setting to drug use; • the effectiveness of alternative approaches to drug control based on regulation rather than criminalisation; or • the potential exemption for the “therapeutic” or medical uses of certain illicit substances in the treatment or management of certain health conditions. As “political questions”, these issues were considered to be beyond the scope of the Committee’s terms of reference. Criminological and sociological perspectives on crime and the criminal process are essential not merely for providing an external critique, but also as the foundation for internal critiques of the criminal law. The attempt to develop a critical theoretical synthesis of these external and internal perspectives, which Lacey calls “criminalisation”, is exploredat [1.185].

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Criminological perspectives Tackling Rising Imprisonment Rates: Justice Reinvestment [1.115] The World Prison Population List 162 provides global data on the number of

persons in prison, revealing significant differences in the levels of imprisonment across the world. 163 Over 10.35 million persons are in prison globally, with 2.2 million prisoners in the United States of America, more than 1.65 million in China (though this excludes an unknown number in pre-trial detention or “administrative detention”). The United States has the second-highest prison population rate in the world, after the small island-state of the Seychelles: 698 prisoners per 100,000 of the national population, a slight decrease on previous years. This compares with Australia at 151 prisoners per 100,000 population, a slight increase on previous years. Reversing the incarceration trend and responding to the high costs (both human and financial) of imprisonment has been a priority of penal reformers in many jurisdictions. The Open Society Foundations, led by Holocaust survivor and successful Texan philanthropist George Soros, pioneered the concept of “Justice Reinvestment”. Emerging from the United States, the idea is attracting interest in Australia, offering a radical departure from prevailing detention practices and the heavily state–individual focused nature of criminal justice programs. 164 As explained by the then-Australian Human Rights Commissioner, Tom Calma, in an address given to the Australian Institute of Criminology Conference on Juvenile Justice in 2009: “It is a criminal justice policy approach that diverts a portion of the funds spent on imprisonment to the local communities where there is a high concentration of offenders. The money that would have been spent on imprisonment is reinvested in programs and services that address the underlying causes of crime in these communities.” 165

This system has been adopted in many jurisdictions in the United States, where there is now an active shift away from the costly culture of imprisonment. Evidence from the United States shows that large numbers of offenders come from a relatively small number of disadvantaged communities. Similar patterns, as Tom Calma has pointed out, apply in Australia in relation to Indigenous communities. By highlighting the reality that millions of dollars are spent each year imprisoning people from identified communities, justice

162

163

164

165

R Walmsley, World Prison Population List (11th ed, London: Institute for Criminal Policy Research, 2016) http://www.prisonstudies.org/sites/default/files/resources/downloads/world_prison_population_list_ 11th_edition_0.pdf (cited 3 March 2017). The report reveals that Australia’s prison population over the period (2000-2015) continued to rise from a rate of 114 per 100,000 population in 2000, to 152 per 100,000 population in 2015: http://www.prisonstudies.org/ country/australia. Senate Legal and Constitutional Affairs Committee, Value of a justice reinvestment approach to criminal justice in Australia (2013). See also submission of the Australian Human Rights Commission: https:// www.humanrights.gov.au/sites/default/files/20130313_jr.pdf (cited 17 July 2016). See also D Brown, M Schwartz, L Boseley, “The Promises of Justice Reinvestment” (2012) 37(2) Alternative Law Journal 98. T Calma, “Investing in Indigenous Youth and Communities to Prevent Crime”, speech given at the Indigenous Young People, Crime and Justice Conference, Parramatta, Sydney, 31 August 2009: see http://www.aic.gov.au/ events/aic%20upcoming%20events/2009/indigenousyouth.aspx (cited 17 July 2016). [1.115]

39

Part I: Theory and Principles

reinvestment encourages commensurate investment in programs that prevent crime in these communities. Examples of such community projects operating in the United States include substance abuse programs, local job placement agencies, programs for children of incarcerated parents, summer youth employment programs (which also revitalise neighbourhoods) and nurse–family partnership programs that provide early intervention in the first years of a child’s life. Impressive results are now emerging with Oregon achieving a 72% reduction in youth incarceration within the first year of the program, and Kansas reducing its overall prison population by 7.5% as well as achieving a 35% decline in recividism rates. Even Texas has managed to halt the growth in its imprisonment rate for the first time in years. The recent reversal of the imprisonment trends in the United States, as reported in the World Prison Population List correlates with the introduction of justice reinvestment programs since 2006. 166

Theories of Criminal Justice [1.120] Concerns about the legitimacy of the criminal law, as already noted, are linked to its

processes as well as its substantive content. As we shall explore in Chapter 2, the general principles, such as fairness, equality and privacy, play an important role in ensuring legitimacy within the criminal justice system. As Herbert Packer recognised nearly 50 years ago, theoretical discussion about the criminal law must address questions about the nature of criminal punishment, culpability (criminal responsibility) and the criminal process. 167 The purpose of the criminal process is typically represented in terms of “crime control”, namely, that the guilty should be detected, convicted and duly sentenced. 168 Legitimacy in this mission is ensured by proper observance of “due process of law”. Packer constructed these objectives as two competing models of criminal process—“the normative antinomy at the heart of the criminal law”. 169 Models of criminal justice: crime control and due process [1.125] Models have been a popular way of analysing the criminal justice system. Packer’s

theory of criminal justice draws two models of criminal process into dialogic tension—“crime control” versus “due process”. As the crime control model is concerned with the repression of criminal conduct, its emphasis is on social control and maintaining public order. In this sense, “the criminal process is a positive guarantor of social freedom”. 170 Considerable attention is paid to promoting efficiency, with a stress on effectiveness and the avoidance of legal rules that are obstacles to this objective. However, the efficient apprehension and disposition of offenders does not take place in a political vacuum: the quantity and quality of resources available for crime control are not infinite. Thus, efficiency is an important consideration that demands both “speed and finality”. Speed depends on informality, while finality is achieved by minimising opportunities for challenge. The process must not be cluttered by steps that impede the closure of a case. This consideration favours reliance on administrative rather than judicial procedures. Hence Packer coins the metaphor of an “assembly line” for the crime control 166

167 168 169 170 40

The report reveals that US prison population over the period (2008-2015) continued to decline from a rate of 755 per 100,000 population in 2008, to 693 per 100,000 population in 2015: http://www.prisonstudies.org/ country/united-states-america (cited 3 March 2017). H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968). A Ashworth, “Concepts of Criminal Justice” [1979] Criminal Law Review 412. H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) p 153. H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) p 158. [1.120]

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model. 171 Informal but efficient procedures are given priority, leading to widespread reliance on confessions as a means of inducing guilty pleas and the efficient disposal of cases. The efficient handling of cases demands a system that screens out cases unlikely to result in convictions, whilst securing convictions in the remainder as expeditiously as possible with the minimum opportunity for challenge. This depends on the earliest possible determination of guilt or innocence. According to Packer, the key factor determining whether a case proceeds further is the presumption of guilt: “The presumption of guilt is what makes it possible for the system to deal efficiently with large numbers, as the crime control model demands”. 172 Packer goes on to deal with the relationship between this presumption of guilt and its “polestar”—the presumption of innocence. The development of the presumption of innocence and its role in ensuring fairness is explored in Chapter 2, [2.160]. Since these two concepts are directed to different ends, they should not be viewed as opposites. The presumption of innocence is a direction as to how officials ought to proceed: that, even in the face of overwhelming evidence, the suspect is to be treated as innocent. In contrast, the presumption of guilt that operates as part of the crime control model is purely and simply a prediction of outcome: “The presumption of guilt is descriptive and factual; the presumption of innocence is normative and legal”. 173 The presumption of guilt is central to the crime control model: the dominant goal of repressing crime can be achieved through summary processes, without loss of efficiency, because of the probability that the preliminary screening processes used by the police and the prosecution contain adequate guarantees of reliable fact-finding. It follows that the criminal process must place as few restrictions as possible on administrative fact-finding and, in particular, on police powers. Minimal control over the police is a central feature of the crime control model. Another way that Packer puts this is that the “center of gravity” of the process lies at the early stages of fact-finding before trial. 174 Subsequent stages are relatively unimportant. The crime control model has very little use for many conspicuous features of the adjudicative process, and in real life works out a number of ingenious compromises with them, such as plea-bargaining. Crime control is counter-balanced by the due process model. Packer uses the metaphor of an “obstacle course”: a series of procedures designed to impede the suspect’s further progress through the system. 175 Packer rejects the idea that due process is the obverse of the crime control model. The due process model is not founded on the idea that repression of crime is socially undesirable, although some critics often assert this. Its starting point is different. The focus in this model is not on the prevention of crime, but on the control of State power in a liberal democracy. Within liberal democracies, the primacy of the individual is stressed: “The aim of the process is at least as much to protect the factually innocent as it is to convict the factually guilty”. 176 The due process model stresses the possibility of error in fact-finding. For example, witnesses may be mistaken or confessions may be unreliable. Hence, there is a suspicion of informal fact-finding and a premium placed on the use of legal procedures of formal, adjudicative, and adversarial processes for discovering and evaluating evidence. These 171 172 173 174 175 176

H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) p 159. H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) p 160. H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) pp 161–162. H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) p 162. H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) p 163. H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) p 165. [1.125]

41

Part I: Theory and Principles

concerns about fallibility predominate, supporting the wide availability of reviews and appeals: “The demand for finality is thus very low in the due process model”. 177 In reconciling the competing demands of efficiency and reliability, the crime control model will tolerate some degree of error. By contrast, due process insists on the prevention and elimination of such mistakes. Rules are developed—such as the presumption of innocence and the burden of proof—that have nothing to do with the factual question of guilt, but are designed to ensure the observance of standards that limit the exercise of official power. As Packer concedes, it is unconvincing to say that a person who, after police investigation, is charged with a crime is probably innocent. What due process requires is that the State must be forced to prove its case—this brings into operation a whole series of rules designed to limit the use of the criminal sanction against the individual, and to increase the accused’s opportunity of securing a favourable outcome. 178 Even when a person’s guilt is clear, the legitimacy of the process is what matters: it is more important to constrain errant police and prosecutors than to secure a conviction. Crime control and due process: a false dichotomy? [1.130] Packer’s use of models to explain the criminal justice system—in particular, the

dichotomy drawn between crime control and due process—has attracted significant criticism. His construction of the criminal justice system draws a distinction between the role of the police (who promote crime control) and the courts (who uphold due process). Presented in these binary terms, the models are antagonistic: when the system promotes one set of values, it necessarily undermines the other. Another criticism is that the model did not accommodate victims’ interests or anticipate the growing significance of victims’ rights movement and the rise of restorative justice conferencing, discussed above. 179 Doreen McBarnet in Conviction: Law, the State and the Construction of Justice is highly critical of the validity and assumptions of this distinction from a sociological and theoretical perspective. McBarnet argues that empirical analysis of the criminal process reveals Packer’s models as drawing a “false distinction”. 180 The dichotomy underlying Packer’s theories reflects the earlier distinction drawn by American legal realists between “law in action” and “law in books”—crime control is what happens, due process is what should happen. 181 This binary conception of criminal justice leads lawyers to believe that reforms require merely greater fidelity to the values of due process and legality in the criminal process, rather than subjecting the values themselves to further independent or critical scrutiny. 182 177 178 179

180 181

182

42

H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) p 164. H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) p 167. For an excellent essay reviewing the influence and limitations of Packer’s theory, see J Stribopoulos, “Packer’s Blind Spot: Low Visibility Encounters and the Limits of Due Process versus Crime Control” in F Tanguay-Renaud and J Stribopoulos (eds), Rethinking Criminal Law Theory (Oxford: Hart Publishing, 2012). Stribopoulos identifies Packer’s blind spot, namely that the courts, by championing due process, could operate as a restraint on police power. Empirical research over the past 50 years reveals that the courts and doctrines of due process have been “incapable of meaningfully regulating police authority”: p 216. D McBarnet, Conviction: Law, the State and the Construction of Justice (London: MacMillan, 1981) p 156. Packer would reject this criticism since he argued that his models “are not labelled Is and Ought, nor are they to be taken in that sense”: H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) p 153. See, for example, FA Allen, The Habits of Legality—Criminal Justice and the Rule of Law (New York: Oxford University Press, 1996). Other legal scholars have argued that the principles of due process and legality should be subject to critical evaluation and reconstruction using external normative sources, such as ethics and human rights: see, for example, A Ashworth and M Redmayne, The Criminal Process (4th ed, Oxford: Oxford [1.130]

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McBarnet argued that this approach was unsatisfactory. Her research suggested that “law in action”, rather than being a deviation from the “law in books”, was condoned by the law: “If the practice of criminal justice does not live up to its rhetoric, one should not only look to the interactions and negotiations of those who put the law into practice but to the law itself … Deviation from the rhetoric of legality and justice is institutionalised within the law itself.” 183

Due process did not set a standard of legality from which the police deviated, but rather provided police, lawyers and judges with a licence to ignore the rhetoric of legality and justice in many cases. McBarnet concludes: “If we bring due process down from the dizzy heights of abstraction and subject it to empirical scrutiny, the conclusion must be that due process is for crime control.” 184

McBarnet’s inversion of the conventional rhetoric of justice has been criticised as an “over-generalisation”. 185 While it must be conceded that due process does impose some constraints on crime control, McBarnet’s thesis usefully highlights the importance of empirical research in exposing the realities and contradictions behind the rhetoric of criminal justice. The “gap” between the rhetoric and realities of criminal justice is managed in a number of ways. Both in its substance and structure, the law provides considerable room for judicial manoeuvre. Fundamental principles are subject to numerous judicial and legislative qualifications. For example, a core idea at the heart of due process is the “fair trial”. However, a closer examination of legal doctrine reveals that this so-called fundamental common law right is only an entitlement to a trial as fair as the courts can make it. In Chapter 2, we further explore the contradictions between the rhetoric and the realities of the fair trial principle in Australian law: [2.80] and [2.160]. General principles may be venerated in judicial rhetoric, while simultaneously distinguished and confined by the “particular facts” of the case. McBarnet notes that this flexibility in adjudication allows lawyers and judges to balance the contradictory demands of crime control and due process, and to manage the gap between the rhetoric and practice “out of existence”. 186 McBarnet’s research also drew attention to “two tiers of justice” within the criminal justice system, contrasting the “ideology of triviality” that pervaded the lower courts with the “ideology of justice” available for public consumption in the higher courts. 187 This finding is significant, bearing in mind that the bulk of criminal matters are initiated and determined in the magistrates’ court.

183 184 185

186 187

University Press, 2010). In the Australian context, scholars have only recently commenced the task of subjecting the criminal process to rights-based analysis: see, for example, J Gans, T Henning, J Hunter and K Warner, Criminal Process and Human Rights (Sydney: Federation Press, 2011). D McBarnet, Conviction: Law, the State and the Construction of Justice (London: MacMillan, 1981) p 156. D McBarnet, Conviction: Law, the State and the Construction of Justice (London: MacMillan, 1981) p 156. Russell Hogg has criticised McBarnet’s conclusion on the ground that it simply replaces one abstraction with another; namely, suggesting that “the law is essentially about one thing (crime control) rather than another (due process)”: R Hogg, “Policing and Penality” in K Carrington and B Morris (eds), Politics, Prisons and Punishment (Bathurst: Centre for Social Justice Studies, 1991), partially extracted in D Brown, D Farrier, S Egger, L McNamara, A Steel, M Grewcock and D Spears, Brown, Farrier, Neal and Weisbrot’s Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (5th ed, Sydney: Federation Press, 2011) pp 167–169. D McBarnet, Conviction: Law, the State and the Construction of Justice (London: MacMillan, 1981) p 161. D McBarnet, Conviction: Law, the State and the Construction of Justice (London: MacMillan, 1981) Ch 7; D McBarnet, “Two Tiers of Justice” in N Lacey (ed), Criminal Justice (Oxford: Oxford University Press, 1994). [1.130]

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Part I: Theory and Principles

Australian crime—facts and figures 2014 [1.135] National crime data prepared by the Australian Institute of Criminology reported that 780,260 cases were lodged in criminal courts in Australia for the period of 2012–13 of which: • 96% (n=750,514) were initiated in magistrates’ courts, 3% (n=25,249) were initiated in district/county courts and the remaining 1% (n=4,497) were initiated in supreme courts. • 70% of all matters were finalised in all courts in less than 13 weeks; guilty verdicts were the most common method of finalisation in matters that took less than 13 weeks to finalise (75%). A further 17% took 13–26 weeks to finalise, with the highest proportion of defendants acquitted (29%). • Only 4% of matters took greater than 52 weeks to finalise. The majority of these were for matters that ended in an acquittal. 188

Examining the nature of proceedings in magistrates’ courts reveals that these are not confined to trivial, regulatory or minor crimes. Magistrates’ courts deal with an increasingly wide range of offences, many carrying the risk of imprisonment and/or substantial fines. What is truly striking is that historically limited academic attention was paid to this part of the criminal process. This was possible because summary proceedings, which account for 96% of criminal proceedings and have potentially serious consequences for the parties involved, could be constructed as “exceptions” to the general rule. Summary offences often dispensed with proof of any mental state, or reversed the onus of proof in relation to key ingredients of the offence. As we shall explore in Chapter 2, [2.100], even the fundamental right to a fair trial, which judges were duty-bound to protect, only applied to those proceedings involving “serious offences”, and excluded pre-trial proceedings such as committals conducted before a magistrate. In Chapter 12, we shall also explore the implications of the two modes of fact-finding (trial before a jury versus summary proceeding before a magistrate) in the context of theft. Most legal discussion proceeds on the assumption that the test of dishonesty for theft is a matter for a jury to determine, applying the standards of “ordinary decent people”. In reality, the majority of cases of minor theft will be determined by a magistrate sitting without a jury. Rather than the jury functioning as a cipher for “community standards”, it is the magistrate applying his or her own subjective morality that will govern the scope of dishonesty, with attendant risks that the attribution of legal blame may be less objective, neutral and apolitical than is commonly claimed, see Chapter 12, [12.70]. McBarnet’s theory has many implications for our understanding of the criminal process and the direction of criminal justice research. It encourages deeper reflection on the structure and functions of law in the criminal process, and the apparent tensions and contradictions within legal doctrine and its fundamental principles. These perspectives are further explored in our critical review of general principles in Chapter 2. The acceptance of Packer’s model by researchers has tended to conceal or minimise the role of law in constituting criminal justice

188

See Australian Crime: Facts and Figures 2014 (Canberra: Australian Institute of Criminology, 2016), http://www.aic.gov.au/media_library/publications/facts/2014/facts_and_figures_2014.pdf (cited 17 July 2016).

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practices. McBarnet criticises sociologists and criminologists who study the behaviour of police, prosecutors and judges, but who ignore the role that law plays in shaping and constituting such behaviour. 189

Law in policing [1.140] An excellent example of research that does recognise the significance of law to the understanding of criminal justice practices is David Dixon’s Law in Policing: Legal Regulation and Police Practices. 190 This empirical study of English and Australian policing reveals that the law for the police is not conceived as a “rule book” to be either followed or ignored, but rather serves as a “tool” or normative resource that is used by police officers in performing their diverse roles of maintaining social order, and preventing and apprehending crime. His study exposes the complexity and contingency of law in policing and concludes “law’s relationship with policing depends upon the nature of the law, the type of policing, and the social and political contexts”. 191

The value of studying the criminal process lies not merely in gaining knowledge about the legal rules and practices governing criminal investigation and the conduct of a trial. Rather, it provides the resources for developing an appreciation of how changes to the substantive law impact upon methods of surveillance, intelligence-gathering, investigation and procedure, and vice versa. The focus on confession evidence in modern policing is undoubtedly related to the increasing emphasis placed on subjective mental states from the late 19th century onwards, and the gradual displacement of constructive or imputed forms of criminal fault. Lindsay Farmer has traced similar synergies between the massive expansion of the summary jurisdiction during the 19th century and legislative efforts to impose stricter forms of liability for a wider range of “regulatory” offences; measures that were designed to improve the administrative efficiency and reach of the criminal law. 192 Another weakness of Packer’s models of criminal process is the unproblematic view of “crime”. The difficulty with the crime control model is that the notions of “guilt” and “offenders” are conceived as existing, in some phenomenological sense, apart from the institutions and practices involved in investigation and the production of evidence. This approach fails to recognise that “guilt” and “innocence” are not simply the products of legal rules applied at trial, but are “constructed” at earlier stages of the process by the key players within the system, such as police, prosecutors and informers: see “Policing and Case Construction” at [1.170]. Also, the crime control model does not conceive repression of police illegality as part of its mission. Proactive policing techniques involving illegality by the police, such as active participation or incitement of criminal activity as part of controlled operations, cut across Packer’s distinction, drawn between “the criminal” and “the crime controller”. In Chapter 14, we explore the pervasive practice of police entrapment in drug law enforcement: [14.210]. 189 190 191 192

D McBarnet, “False Dichotomies in Criminal Justice Research” in J Baldwin and K Bottomley (eds), Criminal Justice (London: Martin Robertson, 1978). D Dixon, Law in Policing: Legal Regulation and Police Practices (Oxford: Oxford University Press, 1997). D Dixon, Law in Policing: Legal Regulation and Police Practices (Oxford: Oxford University Press, 1997) p 318. L Farmer, Criminal Law, Tradition and Legal Order (Cambridge: Cambridge University Press, 1997) pp 122–126. See also M Dubber, The Police Power: Patriarchy and the Foundations of American Government (New York: Columbia University Press, 2005), which explores the role of the criminal law in sustaining the “Police Power Model” in the United States, with its emphasis on the use of criminalisation of particular “statuses” to affirm state power. [1.140]

45

Part I: Theory and Principles

Beyond balancing crime control and due process: promoting human rights [1.145] At the core of Packer’s binary conception of criminal justice implicitly lies the

importance of ensuring “balance” between the normative antinomies of crime control and due process. Andrew Ashworth rejects Packer’s conception of criminal justice as a “balance” between two poles. In an article called “Concepts of Criminal Justice”, Ashworth recognised that the general justifying aim of the criminal process was crime control, though this was subject to three main qualifiers: • considerations of system (that is, resources); • principles of fairness; and • control of abuse. 193 Unlike Packer’s model, where due process is the only constraint on crime control, Ashworth’s concept of criminal justice accommodates both economic and public policy interests as legitimate constraints. These “considerations of system” recognise the economic constraints on the criminal process—since full enforcement of every breach of the criminal law would be impractical, imposing an unreasonable cost on society, decisions to arrest and prosecute rest on the exercise of discretion. This approach supports practices that encourage cooperation, such as charge negotiation and plea-bargaining, as well as diverting matters away from the courts through the use of infringement or fixed penalty notices for minor offences. Ashworth identified “control of abuse” by law enforcement officials as a further qualifier. It is not an end in itself, but rather a means of maintaining the balance between the State and the citizen. Not only does it have instrumental value, subjecting police to the rule of law, it also serves to maintain public confidence in the administration of criminal justice. In the Australian context, the importance of maintaining public confidence underlies the judicial discretion to exclude evidence that was illegally or improperly obtained and the inherent power to grant a stay of proceedings on the ground of “abuse of process” in order to prevent an unfair trial. 194 Debates about criminal justice reform tend to pivot on the need to “balance” the rights of suspects against the public interest in detecting, preventing and prosecuting crime. The weakness of this approach is that it suggests that due process and crime control exist in some sort of hydraulic relationship to one another. 195 Far from maintaining the perfect equilibrium, the criminal justice system, as McBarnet contends, consistently favours the interests of the State and the community over the individual. A similar assessment may be extended to special laws enacted to deal with terrorism in the wake of 9/11, where, under the rubric of developing a “balanced” response, many fundamental rights have been eroded: see Chapter 15, [15.145]ff. Ashworth has similarly pointed to the distorting effect of balancing metaphors in debates about criminal justice reform. Rather than balancing interests or rights, he proposes that reformers must first determine the aim of a given part of the criminal process and then ascertain what rights ought to be ascribed to the affected parties (the law enforcement agency, prosecution and defence counsel, suspects, accused and the community). 196 In a powerful 193 194 195

196

A Ashworth, “Concepts of Criminal Justice” [1979] Criminal Law Review 412 at 413. See Bunning v Cross (1978) 141 CLR 54 and Dietrich v The Queen (1992) 177 CLR 292 respectively. D Dixon, Law in Policing: Legal Regulation and Police Practices (Oxford: Clarendon Press, 1997) p 284, citing J Braithwaite, Crime, Shame and Reintegration (Cambridge: Cambridge University Press, 1989) pp 158 –159. A Ashworth, “Crime, Community and Consequentialism” [1996] Criminal Law Review 220 at 229. For an excellent chapter, outlining the significance of Ashworth’s writings on criminal law doctrine generally, see N Lacey, “Principles, Policies, and Politics of Criminal Law” in L Zedner and JV Roberts (eds), Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth (Oxford: Oxford University Press, 2012).

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critique of balancing, Ashworth proposes that criminal justice reform, rather than adopting a utilitarian approach, should ensure maximum protection for fundamental human rights. The drawbacks of the balancing model are further explored in Chapter 2, [2.140]. Ashworth’s approach of promoting rights is not unproblematic. Rights have traditionally favoured liberal political agendas, promoting individual over collective or social interests. There has been a lively debate about the value of rights, with critical legal scholars exposing the failure of rights to remedy disadvantage within marginalised communities. As we shall explore in Chapter 2, some feminist and critical scholars have rejected “rights discourse” entirely: [2.205]. Economic models of criminal justice [1.150] David Garland in The Culture of Control: Crime and Social Order in Contemporary

Society 197 traces the profound shifts from a “social” to “economic” style of reasoning in the fields of crime policy and criminal justice decision-making in the late 20th century. 198 This economic model asserts that key private-sector values (for example, “value-for-money”, “cost-benefit”, and “performance measurement”) can provide better tools for regulatory design. The agenda typically exposes the inefficiency of state-centric interventions, favouring privatisation of policing, prisons and post-release offender supervision will produce more efficient and effective outcomes for the criminal justice system. There are many examples of criminal justice processes being driven by efficiency in Australia, ranging from diversionary tools (such as police cautions and infringement notices) to practices of charge-negotiation and plea-bargaining. All of these practices are justified in terms of their efficiency, promoting disposal of cases without burdening the system with costly trials. Police cautions, whether formal or informal, are widely used in dealing with juveniles, and assist in the management of suspects in several ways. A police caution provides official notice to an individual that they are “known to the police” and may, therefore, act as a deterrent. It also forms part of the police record, and thus may shape future interactions with the person as well as bolster the reasonableness of police suspicion in subsequent investigations. From an internal bureaucratic perspective, cautions are also attractive: though not resulting in convictions, they may be counted as “clearances” for the purpose of measuring police performance. With only limited opportunities for suspects to dispute the legality of cautions—which are administrative actions —the working informal definitions of illegality applied by police remain unchallenged. 199

197 198

199

D Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001). D Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001) pp 188–192. See also Michael King in The Framework of Criminal Justice (London: Croom Helm, 1981), who sketched a “bureaucratic model” of criminal justice. Efficiency is the key objective, though it is not restricted to the narrow interests of “crime control” in the sense of maximising the detection and conviction of the guilty. The emphasis, rather, is on gathering and managing information about suspects and offenders, as well as minimising the costs associated with the administration of criminal justice. Such a model prioritises administrative processes over formal legal procedures. At common law, cautions, while practically significant, have no formal legal status and there is limited scope for challenging the grounds of a caution: R May, “The Legal Effect of a Police Caution” [1997] Criminal Law Review 491. Some jurisdictions have recognised in statute the discretion of law enforcement officials to issue a caution rather than a penalty notice: see s 19A, Fines Act 1996 (NSW) (inserted 2008), s 8, Infringements Act 2006 (Vic). The NSW Attorney General has issued “Caution Guidelines under the Fines Act 1996” which sets out a list of factors which should be considered when issuing a caution: http://www.justice.nsw.gov.au/ justicepolicy/Documents/caution_guidelines_under_the_fines_act_pdf.pdf (cited 21 December 2016). [1.150]

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Part I: Theory and Principles

Actuarial justice: the new criminal law? [1.155] The term “Actuarial Justice” was first coined by Malcolm Feeley and Jonathon Simon to denote the “New Penology” based on management of risk. 200 Many initiatives in criminal justice (including new criminal laws) have been directed to identifying and managing “dangerousness” in the community. This trend has justified the use of incapacitation and preventive detention, imposition of curfews, and the profiling of offenders who pose a risk of danger to the community. 201 Actuarial Justice is a theory of risk-based criminal justice that normatively rests on the technical neutrality of statistics. However, as Pat O’Malley points out in his essay, this idea of risk is contestable: “[Risk] is always a moralised way of governing and the specific moral foundations should be made explicit”. 202 Rather than tying it to exclusionary incapacitative schemes, O’Malley argues for a “new ethics of risk” that is linked to social justice and social welfare, which foster risk models that deliver preventive and restorative resources to disadvantaged sectors of the population. 203

Other diversionary practices within the criminal justice system have similar qualities, such as the power to issue “on the spot” penalties, or infringement notices to deal with minor offences (for example, speeding). However, the presumed efficiency gains of promoting these diversionary schemes in lieu of prosecution must be subject to critical scrutiny. The last decade has seen the gradual spread of the use of infringement notices beyond the realm of regulatory crime to minor offences relating to drugs and public order. As we shall explore below, the power to issue infringement notices in relation to the possession of small quantities of cannabis has resulted in significant increases in court appearances and convictions for drug offences. Mandatory sentencing laws may also be understood in terms of promoting efficiency. Removing sentencing discretion is said not only to promote (formal) equality and deterrent effect of punishment, it also dramatically streamlines the sentencing process. It dispenses with the need for lengthy hearings where evidence is tendered and contested on the nature of the offence, the background of offenders and the prospects for rehabilitation. Additionally, the risk of error and the defendant mounting costly appeals is minimised. As the next Perspectives section reveals, there is a danger that these “efficient” disposal mechanisms privilege bureaucratic interests over other values such as due process and the protection of human rights.

200 201 202 203

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M Feeley and J Simon, “Actuarial Justice: The Emerging New Criminal Law” in D Nelken (ed), The Futures of Criminology (London: Sage Publications, 1994). For a collection of articles exploring these developments, see P O’Malley (ed), Crime and the Risk Society (Aldershot: Ashgate, 1998). P O’Malley, “The Uncertain Promise of Risk” (2004) 37(3) Australian and New Zealand Journal of Criminology 323 at 326. P O’Malley, “The Uncertain Promise of Risk” (2004) 37(3) Australian and New Zealand Journal of Criminology 323 at 333–334. See also P O’Malley, “Neoliberalism and Risk in Criminology” in T Anthony and C Cunneen (eds), The Critical Criminology Companion (Sydney: Hawkins Press, 2008). [1.155]

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Procedural perspectives The Rise of Diversion and Cautionary Tales: “On the Spot” Justice: Decriminalising Cannabis and Regulating Traffic [1.160] Pat O’Malley has explored the rise of managerialism in the criminal justice

system—a rise which he calls “technocratic justice”. 204 Infringement or penalty notices and expiation schemes, commonly known as “on-the-spot-fines”, may be viewed as measures of technocratic justice. Infringement, penalty notices or expiation schemes are now widely used by police and other law enforcement officials, such as health and safety inspectors, to manage an increasing range of offences. The offender has the choice of paying the fine, essentially pleading guilty to the commission of the offence but with no resulting record of conviction, or to dispute the matter in court. These offences are no longer confined to minor traffic infringements—they have been extended to a wide range of offences, including possession of narcotics, common assault, shoplifting, offensive conduct, offensive language, and goods in custody. 205 Infringement notices have been described by the Australian Law Reform Commission (ALRC) as a tool to divert offenders involved in minor cases away from the criminal courts—this “results in an ‘opt-in’ criminal process where the criminal burden of proof will only need to be met by the prosecution if the alleged offender elects to contest the offence in court”. 206 These diversionary schemes offer, at first glance, significant savings in terms of system costs since there is no hearing and the “penalty” paid covers the enforcement costs. 207 The failure to pay the penalty is made a distinct offence, though only in cases where the person has not elected to contest the notice of infringement. From the offender’s perspective, irrespective of guilt or innocence, compliance with the scheme is encouraged because the negative cost of prosecution and risk of conviction outweighs the relatively minor pecuniary burden of the penalty. The ALRC notes that: “The attraction for the person issued with the infringement notice is that it is generally quick, easy and inexpensive to pay the penalty without question. Not paying the penalty and contesting the offence is made less attractive by the prospect of a heavier sanction if a court determines the matter, in addition to the cost and inconvenience of the proceedings themselves.” 208

The process, as the ALRC also points out, is costly in terms of due process: “Infringement notice schemes may be seen as an attempt to convince people to voluntarily forego the procedural protections of the criminal process in the interests of allowing the state to collect fines more efficiently.” 209

204 205 206 207 208 209

P O’Malley, “Technocratic Justice in Australia” (1984) 2 Law in Context 31. See the report by the NSW Ombudsman, On the Spot Justice?: The Trial of Criminal Infringement Notices by NSW Police (Sydney: NSW Ombudsman, April 2005). Australian Law Reform Commission, Securing Compliance: Civil and Administrative Penalties in Federal Jurisdiction, Report No 65 (2002) p 397. RG Fox, Criminal Justice on the Spot: Infringement Penalties in Victoria (Canberra: Australian Institute of Criminology, 1995). Australian Law Reform Commission, Securing Compliance: Civil and Administrative Penalties in Federal Jurisdiction, Report No 65 (2002) p 396. Australian Law Reform Commission, Securing Compliance: Civil and Administrative Penalties in Federal Jurisdiction, Report 65 (2002) p 400. [1.160]

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O’Malley’s conclusion is that the displacement of due process from the system in effect “de-moralises crime and renders it merely a breach of administrative regulation”. 210 The effect, as O’Malley observed, is that there is now an increasing range of “civil offences” of a morally ambiguous character. 211 Mirko Bagaric suggests that this tendency to overuse criminalisation for regulatory purposes means that the modern criminal law is devoid of any justificatory principle and that the notion of criminality is now debased. 212 For example in New South Wales, any offence can be disposed of by way of an infringement notice (called a “penalty notice”), provided it is so prescribed by regulation: see Criminal Procedure Act 1986 (NSW), s 336. Diversionary schemes have been applied to minor drug offences in many jurisdictions. In the Australian Capital Territory, the Northern Territory, South Australia and Western Australia, infringement notices may be issued for possession of small quantities of cannabis, 213 replacing conviction as the method of deterrence and removing the stigma associated with criminal prosecution. 214 Tasmania, New South Wales and Queensland also introduced cannabis cautioning schemes, although eligibility, processes and penalties differ between jurisdictions. Although there has been nearly 20 years of diversionary practice of issuing cautions, warnings and offence notices for cannabis offenders, there is scant data evaluating the costs and benefits of such schemes compared with court-based processes, taking into account recidivism rates, health and social outcomes for those diverted. 215 Infringement notices were initially welcomed by law enforcement officials and law reformers as sensible alternatives to strict prohibition—alternatives that would better promote “harm minimisation”. As we shall explore in Chapter 14, see [14.10] they have neither increased diversion from the criminal justice system nor blunted the coercive edge of the criminal law. Lower courts continue to process large numbers of minor drug offences, often by repeat offenders. They have also become clogged with prosecutions of fine defaulters because drug users, unlike individuals processed for minor motoring offences, typically are drawn from disadvantaged communities and are poorly placed to pay fines and thus avoid prosecution and conviction. With some cautionary notes, the infringement notices scheme will be attractive to regulators, especially when combined with technology that automates the processes of detection and issuance of breaches, such as red-light and speed cameras. One study of a pilot scheme a decade ago revealed a total estimated saving of approximately $647,015 for the NSW Police and local courts for the 12-month trial period of the criminal infringement notice (CIN) scheme. This permitted the redirection of resources for the police to other activities (such as front-line policing) and the courts to a more timely 210 211 212 213 214 215

P O’Malley, “Technocratic Justice in Australia” (1984) 2 Law in Context 31 at 46. P O’Malley, “Technocratic Justice in Australia” (1984) 2 Law in Context 31 at 45. M Bagaric, “The “Civilisation” of the Criminal Law” (2001) 25(4) Criminal Law Journal 184 at 184–185. Drugs of Dependence Act 1989 (ACT), s 171A; Misuse of Drugs Act (NT), s 20A; Controlled Substances Act 1984 (SA), s 45A; Misuse of Drugs Act 1981 (WA), s 8E. Australian Law Reform Commission, Securing Compliance: Civil and Administrative Penalties in Federal Jurisdiction, Report No 65 (2002) pp 55–57. In 2015 the National Drug and Alcohol Research Centre completed a national online study of over 1,000 cannabis offenders from across Australia to evaluate outcomes and cost-effectiveness of diversion programs: https://www.ndarc.med.unsw.edu.au/project/australian-policy-diversion-cannabis-offences-assessingprogram-outcomes-and-cost (cited 1 August 2016).

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disposition of matters. 216 However, mindful of the potential for the overuse of infringement notice schemes, the NSW Ombudsman identified that the following principles should be applied when considering what type of offences should be included in these schemes: • The offence is relatively minor. • There is a sufficiently high volume of contraventions so as to justify the cost of establishing systems for the offence to be dealt with by way of a CIN. • Other diversionary options to effectively and appropriately deal with the conduct in question are not available to police. • A fine for the offence is a sufficiently effective means of addressing the conduct, as opposed to an alternative penalty or sentence. • Specific and general deterrence can be adequately conveyed by police, rather than by a court. • The physical elements of the offence are relatively clear-cut. • The issuing of a CIN for the offence would generally be considered a reasonable sanction by the community, having due regard to the seriousness of the offence. 217 Constructing knowledge of crime and criminal justice [1.165] The production of knowledge regarding crime and criminal justice occurs at a number of different levels and locations. It plays a vital role in defining the nature and seriousness of a crime problem, and of determining what response is required from both a law enforcement and a law reform perspective. In this section, we explore how police practices and institutions play a role in the creation of knowledge and the role of the popular media in shaping our approach to crime and criminal justice.

Policing and case construction [1.170] The significant role played by the police in the construction of knowledge about

“suspects” is borne out by the research of Mike McConville, Andrew Saunders and Roger Leng in The Case for the Prosecution. This important empirical study, based on research done in the United Kingdom in the late 1980s, developed the theory of “case construction”; namely, that police accounts of any event may be represented in numerous ways: “Official accounts are problematic, selective renderings of complex realities”. 218 The process of case construction is continuous. At each stage, the question of “what happened?” is the subject of “interpretation, addition, subtraction, selection and reformulation”. 219 In short, evidence is “constructed” rather than merely discovered. Due to case construction, pre-trial processes are often determinative of outcome. Although, theoretically, the outcome of an investigation might depend on the application of the correct legal definition of fault required for an offence, in practice the police simply direct their efforts to obtaining a confession for the purpose of inducing a guilty plea so that technical definitional questions are rendered redundant. This process is apparent in earlier phases of the criminal process. In Chapter 13, [13.15]ff, for example, we shall explore how the police play a determinative role in constructing an 216 217 218 219

NSW Ombudsman, On the Spot Justice?: The Trial of Criminal Infringement Notices by NSW Police (April 2005) p iii. NSW Ombudsman, On the Spot Justice?: The Trial of Criminal Infringement Notices by NSW Police (April 2005) p iv. M McConville, A Saunders and R Leng, The Case for the Prosecution (London: Routledge, 1991) p 7. M McConville, A Saunders and R Leng, The Case for the Prosecution (London: Routledge, 1991) p 12. [1.170]

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incident as “disorderly” and worthy of police attention through public order law—police definitions of “good order” are often practically and legally unassailable. 220 The extent to which public order law imposes restrictions on political protest—or conversely upholds fundamental human rights of peaceful assembly, association or expression—has less to do with formal legal definitions and more to do with police culture and training. The police, as gatekeepers of the system, make crucial decisions in the management of cases, and exercise discretion in determining whether or not to arrest (or alternatively issue a caution or infringement notice), to commence or withdraw an investigation, and ultimately, to progress the matter to prosecution. 221 Surveillance is integral to the process of creating and managing knowledge of suspect populations. Indeed, its prevalence within modern societies leads some scholars to suggest that the dominant objective of the criminal process is no longer crime control, but rather surveillance. In Australia, surveillance is conducted through covert policing and intelligencegathering. There are also more visible investigative processes and agencies gathering data on specific crime threats, and even particular suspects. Ad hoc inquiries such as Royal Commissions are now supplemented by specialised investigative bodies, such as the Independent Commission Against Corruption (NSW) and, nationally, the Australian Crime Commission (ACC) (now operating under the umbrella of the Australian Criminal Intelligence Commission (ACIC)), which have broad-ranging inquisitorial and coercive powers to gather intelligence and undertake covert operations to tackle organised crime. 222 As Richard Ericson concludes, these trends to “system surveillance” pose considerable dangers to fundamental human rights since “[s]uspects’ rights are displaced by system rights. Justice becomes a matter of just knowledge production for the efficient management of suspect populations”. 223

Foucault on crime and punishment [1.175] In the modern context, surveillance not only produces knowledge about crime and criminals, it also has disciplinary dimensions. In Discipline and Punish—the Birth of the Prison, 224 Michel Foucault traces the transformation of disciplinary technologies from their initial focus on the “corporeal” (capital punishment), to the “carceral” (the rise of the penitentiary) and, finally, to the emergence of “management”. He examined the new surveillance technologies developed in the 19th century that aimed to produce “docile bodies”, such as Bentham’s model prison, which incorporated the Panopticon. The Panopticon’s circular design subjected prisoners to the constant but invisible threat of surveillance from a central observation point. In his famous essay “The Panopticon versus New South Wales” (1802), Bentham trumpeted the model of prison reform as a preferable

220

221

222

223 224

As Lawrence Lustgarten concluded in “The Police and the Substantive Criminal Law” (1987) 27(1) British Journal of Criminology 23 at 29: “A key characteristic of all preventive public order offences, is that the police are a complainant, judge, and, in all but a few cases, jury as well.” On the role of police discretion, and how this is mediated through prosecution guidelines and police culture, see S Bronitt and P Stenning, “Understanding Discretion in Modern Policing” (2011) 35(6) Criminal Law Journal 319. This trend toward “system surveillance” explains the increasing use of Royal Commissions to generate knowledge about the criminal justice system and notorious miscarriages of justice: R Ericson, “The Royal Commission on Criminal Justice Surveillance” in M McConville and L Bridges (eds), Criminal Justice in Crisis (Cheltenham, UK: Edward Elgar Publishing, 1995) Ch 11. R Ericson, “The Royal Commission on Criminal Justice Surveillance” in M McConville and L Bridges (eds), Criminal Justice in Crisis (Cheltenham, UK: Edward Elgar Publishing, 1995) pp 139–140. M Foucault, Discipline and Punish—the Birth of the Prison (New York: Pantheon Books, 1977).

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solution to transportation. 225 John Braithwaite has criticised Foucault’s historical sequencing, arguing that it overlooks the significance of banishment, in particular transportation, of criminals. The penitentiary did not replace transportation at the end of the 19th century as Foucault contended, but rather co-existed in many places alongside other forms of punishment. As Australian colonial history demonstrates, banishment in the form of transportation was not inherently exclusionary, and often promoted restorative justice and opportunities for reintegration that were not available in the penitentiary model. 226

Criminological research has revealed the importance of the media (including news and “info-tainment” as well as crime fiction) in shaping knowledge about crime and the criminal justice system—knowledge which then feeds back into research, law reform and policy. 227 This complex interrelationship sustains penal populism and a “law and order” society in Australia, which Russell Hogg has described in the following terms: “Crime policy becomes symbolic. Measures are more important for what they say than what they do. … Populist crime policy is increasingly produced in transactions between the most politicized element within the executive (political leaders, political staffers, pollsters and media advisors) and the tabloid media. Professional knowledge and opinion, research and evidence are marginalized.” 228

As we shall explore in later chapters, there is a complex interrelationship between community fear, the politics of law and order, and criminalisation. Popular fears about new crime “threats” have justified the adoption of new police powers and offences across a wide field—the past decade has witnessed new laws against terrorism, outlaw motorcycle gangs, public disorder, “drink-spiking”, online grooming and even distribution of “revenge porn”. The responsiveness of the criminal law and police powers to community fears and local “law and order” politics is further explored in Chapter 13, [13.10].

The media: reflecting or shaping crime fears? [1.180] For most people the media provides the primary source of information on crime and justice. 229 The 2007 Australian Survey of Social Attitudes revealed significant divergence between community perceptions and the reality of crime (rates of which are stable or declining for most offence categories). 230 Analysing the data collected, the Australian Institute of Criminology found: “The rate of crimes reported to police per 100,000 persons was lower in 2007 than in 2005 for the four major crime categories of homicide and related offences, unlawful entry with intent, motor vehicle theft and other theft. The rate of crimes reported to police increased for two minor categories: robbery and blackmail/extortion. When all categories are considered together as one category ‘crime’, the trend is downward. Survey respondents 225 226 227

228 229

230

M Finnane, Punishment in Australian Society (Melbourne: Oxford University Press, 1997) Ch 2. J Braithwaite, “Crime in a Convict Society” [2001] 64(1) Modern Law Review 11. A Howe (ed), Sexed Crime in the News (Sydney: Federation Press, 1998) and A Young, “Culture, Critical Criminology and the Imagination of Crime” in T Anthony and C Cunneen (eds), The Critical Criminology Companion (Sydney: Hawkins Press, 2008). R Hogg, “Resisting a Law and Order Society” in T Anthony and C Cunneen (eds), The Critical Criminology Companion (Sydney: Hawkins Press, 2008) p 281. See L Roberts and D Indermaur, What Australians Think About Crime and Justice: Results from the 2007 Survey of Social Attitudes—Research and Public Policy Series 101 (Canberra: Australian Institute of Criminology, 2009) p 24. The Australian Survey of Social Attitudes, 2007 (2008) https://www.ada.edu.au/social-science/01127 (cited 3 March 2017). [1.180]

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(n=5,303) were asked ‘Do you think that the level of crime in Australia has changed over the past 2 years?’ The majority of respondents (64.9%) responded that crime has increased over the past two years. Only 2.9% correctly identified that crime rates reduced over this period. However, almost one-quarter of respondents (24.6%) indicated that the crime rate had stayed the same, which is closer to reality than the two groups that incorrectly perceived a crime increase. Of those perceiving a crime increase, most (four in 10 overall) thought there was a lot more crime and just over two in 10 (23.2%) thought there was a little more crime.” 231

A follow-up study in 2010, using the 2007 data, revealed further relationships between perceptions and actual prevalence of crime in the community. Individuals were more likely to misperceive the crime rates if they consumed television and tabloid news, were female or older, or had lower levels of educational attainment. 232 As the authors concluded, “public policymakers should exercise additional care when framing important law enforcement decisions taken against the background of the public’s potential misperceptions of crime.” 233

Towards Critical Synthesis: A Theory of “Criminalisation” [1.185] Legal scholarship plays a significant role in constituting the conceptual boundaries

and vocabulary of the criminal law. As this chapter has demonstrated, there is no single concept of criminal law—rather, there are multiple and contradictory accounts of its nature and function. Yet many textbooks (to the extent they acknowledge theory at all) restrict themselves to the province of analytical jurisprudence and liberal theory. As we shall further explore in Chapters 2 and 3, the theoretical foundations of “general principles” in the criminal law are firmly based in the moral and political concerns of liberalism. This is particularly so as regards the need to provide a legitimate basis for State interference with individual liberty, especially the rule of law and the rights to freedom of person and property. Liberal accounts of the criminal law have not gone unchallenged. In the 1980s, Critical Legal Scholarship (CLS) emerged in the United States. 234 Through close textual analysis, Mark Kelman exposed the internal “politics” of legal discourse in the field of criminal law. This internal or immanent critique unmasked the indeterminacy and contradictions of “general principles” in the criminal law. Kelman demonstrated that, notwithstanding a subjectivist rhetoric underlying doctrines such as subjective fault elements, the law wavered between “free will” and “determinist” accounts of human action. The principal weakness of the early CLS movement was its failure to develop an “external critique”, or to engage in normative reconstruction within the structure of law. As Nicola Lacey concluded, developing 231

232

233

234

L Roberts and D Indermaur, What Australians Think About Crime and Justice: Results from the 2007 Survey of Social Attitudes—Research and Public Policy Series 101 (Canberra: Australian Institute of Criminology, 2009) p 9. B Davis and K Dossetor, “(Mis)perceptions of Crime in Australia”, Australian Institute of Criminology: Trends and Issues in Crime and Criminal Justice No 396 (Canberra: Australian Institute of Criminology, 2010), http://www.aic.gov.au/media_library/publications/tandi_pdf/tandi396.pdf (cited 17 July 2016). B Davis and K Dossetor, “(Mis)perceptions of Crime in Australia”, Australian Institute of Criminology: Trends and Issues in Crime and Criminal Justice No 396 (Canberra: Australian Institute of Criminology, 2010) p 6, http://www.aic.gov.au/media_library/publications/tandi_pdf/tandi396.pdf (cited 17 July 2016). The emergence of “CLS” is reviewed in N Lacey, “Criminology, Criminal Law, and Criminalization” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (2nd ed, Oxford: Clarendon Press, 1997) pp 440–441; and D Nelken, “Criminal Law and Criminal Justice: Some Notes on their Irrelation” in I Dennis (ed), Criminal Law and Criminal Justice (London: Sweet and Maxwell, 1986) pp 152–155.

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an internal critique requires engagement with a broader set of “historical, political, and social questions about the conditions and existence and efficacy of particular doctrinal arrangements”. 235 In recent years, this deficiency in criminal law scholarship has been largely rectified. Alan Norrie’s Crime, Reason and History is an outstanding example of the meshing of internal and external perspectives on the evolution and role of subjective fault elements in the criminal law. 236 In this book, Norrie uses legal history to critique the modern principles of criminal responsibility. His study reveals that the criminal law’s commitment to subjectivism, rather than being a timeless and universal principle, was formed in the crucible of social and political forces in the 19th century and remained, in the 20th century, the site of struggle and contradiction. As Nicola Lacey notes, socio-legal perspectives reject the notion that “crime” is a given act of law creation. 237 The study of the crimes must be placed within a wider disciplinary terrain that encompasses the criminal law, criminology and criminal justice studies. Lacey uses the term “criminalization” to describe this broader conceptual framework: “The idea of criminalization captures the dynamic nature of the field as a set of interlocking practices in which the moments of ‘defining’ and ‘responding to’ crime can rarely be completely distinguished and in which legal and social (extra-legal) constructions of crime constantly interact. It accommodates the full range of relevant institutions within which those practices take shape and the disciplines which might be brought to bear upon their analysis; it allows the instrumental and symbolic aspects of the field to be addressed, as well as encompassing empirical, interpretive and normative projects.” 238

An important aspect of criminalization, beyond attention to formal legal analysis, is a close examination of the rhetorical and aesthetic structure of legal doctrine. The unrelenting quest for integrity in law—order, rationality and coherence—has an important symbolic and ideological function. As explored above, the prospect that the criminal law can be stated in rational and principled terms is essential to the notion of legality and the rule of law. This concept of criminal law directs disciplinary efforts towards “tidying up” the incoherence of the criminal law. However, resolving incoherence through conceptual analysis often masks the internal contradictions within the law and limits the normative choices available for reform. Legal scholarship is deeply implicated in this process of constructing the criminal law. An approach that draws only on a narrow brand of (liberal) moral and political philosophy severely inhibits the potential to imagine the criminal law and its organising principles differently. The challenge offered to legal scholars and students who embrace “criminalization” is awesome. Since the conception of the criminal law is less bounded than traditional accounts, the potential disciplinary terrain is vast. Peter Alldridge similarly proposed that the discipline must be broadened to encompass crime, criminal law and criminal justice. Adopting this broadened perspective brings into focus questions related to human rights, victims and the 235 236 237

238

N Lacey, “Legal Constructions of Crime” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (4th ed, Oxford: Oxford University Press, 2007) p 192. A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014). A “socio-legal” approach requires an appreciation of the political, social and cultural contexts of legal developments, as well as a commitment to theorising law as a social phenomenon: R Cotterrell, “Why Must Legal Ideas Be Interpreted Sociologically?” (1998) 25 Journal of Law and Society 171 at 183. Such sociological perspectives, he states, are not merely a “desirable supplement but an essential means of legal understanding” at 192. For an early collection of essays on the importance of socio-legal studies, see P Thomas (ed), Socio-Legal Studies (Aldershot: Dartmouth, 1997). N Lacey, “Legal Constructions of Crime” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (4th ed, Oxford: Oxford University Press, 2007) p 197. [1.185]

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globalisation of crime. 239 This “no exclusions” approach to criminal law is certainly daunting. The only strategy for coping with this approach is to become conscious and comfortable with the “gaps” in our knowledge. In many areas, the process of critically (re)thinking and (re)reading the criminal law from both internal and external perspectives is at an embryonic stage of development. Forays beyond doctrinal analysis or analytical (liberal) jurisprudence are undoubtedly hampered by the conservative nature of legal professional culture. New sources of knowledge and ideas may engender hostility from within the profession and some parts of the academy on the grounds that they will fragment and disorder the discipline of law. 240 Critical scholarship is necessarily “messy”, producing more complex, fractured and pluralistic accounts of the criminal law. As Desmond Manderson has pointed out, rather than viewing this quality as a form of legal anarchy in need of order, an aesthetic theory of law, built on traditions of legal pluralism and critical scholarship, would value and celebrate legal diversity. 241 Celebration of diversity stands in stark contrast to the uncritical “principled approach” to criminal law that understands “inconsistency” as “incoherence” requiring remediation. Through its successive editions, Howard’s Criminal Law searched for its principles through the conceptual rationalisation of the law governing a narrow range of substantive offences and defences. 242 Such texts have failed to provide an explicit explanatory or normative platform (beyond the promotion of clarity, coherence and rationality) upon which to evaluate the criminal law. An understanding of legal principle must step beyond an inquiry into clarity, coherence and rationality. The study of criminal law must seek to expose rather than conceal doctrinal contingency and contradiction. It can no longer focus exclusively on “serious crimes” for which imprisonment is the usual penalty. More importantly, it must place these principles of law in a broader context using a variety of external disciplinary perspectives. As Nicola Lacey observed in Unspeakable Subjects, a critical approach towards the criminal law need not necessarily descend into “disempowering relativism” where one interpretation is as good as another. 243 The process of exposing contradictions in legal doctrine need not be an exercise in mindless “trashing”; rather, it may open up spaces for normative reconstruction which are often concealed by traditional accounts of legal doctrine. We believe that adopting a socio-legal and socio-theoretical approach to the criminal law pays both academic and practical dividends. Broader perspectives not only encourage more realistic accounts of the criminal law, they also encourage more imaginative debate about the scope, possibilities and limits of law reform. These perspectives may be used to challenge and subvert the law’s epistemological claims of objectivity, universality and neutrality. As we shall explore in Chapters 5 and 6, the tests for self-defence and provocation are based on “objective” gender-neutral standards. Liberal concerns about equality are addressed simply by replacing the overtly discriminatory standard of the “reasonable man” with the purportedly gender-neutral “reasonable or ordinary person”. However, as feminists have observed, law reform that only tackles formal discrimination does little to address the myths and stereotypes about women as potential victims and perpetrators of violence that may influence the assessment of “reasonableness” of a woman’s conduct by the judge, jury or magistrate. 239 240

241 242

243

P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) pp 18–23. See, for example, the review by S Odgers of the first edition of S Bronitt and B McSherry, Principles of Criminal Law in Bar News NSW, Summer 2001–2002, in which he comments: “The point I wish to make is that such academic critical legal analysis increases the rift between academic lawyer and practitioner”. D Manderson, “Beyond the Provincial: Space, Aesthetics, and Modernist Legal Theory” (1996) 20(4) Melbourne University Law Review 1048 at 1069. The last edition of Colin Howard’s Australian criminal law textbook was authored by Brent Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990). Fisse did increase the normative content of this textbook, drawing heavily on the US Model Penal Code and its commentaries. N Lacey, Unspeakable Subjects (Oxford: Hart Publishing, 1998) p 228.

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Notwithstanding its purported neutrality, the “reasonableness” of the defensive actions and beliefs of a woman who kills her abusive partner, or who carries an irritant spray because she lives in constant fear of male violence, continues to be defined in masculine terms. 244 Feminist scholarship has been directed towards confronting this gendered reality and reconstructing the “reasonable” and “ordinary” standards in the law in more inclusive terms. Such a project, in both academic and practical terms, is aided by external disciplinary perspectives. Insights from psychology on the “battered women syndrome” (mediated through expert evidence) have been used to bolster claims of provocation and self-defence. As we shall review in Chapter 6, the benefits and pitfalls of such forensic strategies continue to be hotly debated both inside and outside the courtroom. There remains considerable scepticism whether such “external” perspectives on violence against women are credible in terms of psychology or law: Chapter 6, [6.65], “Intimate partner violence and self-defence”.

RECONSTRUCTING THE CRIMINAL LAW [1.190] In the process of rational construction and reconstruction of the criminal law, the

legal community (that is, the broader interpretive community comprised of lawyers, judges and legal academics) is influenced by a wide range of normative theories. 245 Normative discussion may not be explicit, but rather remains latent within legal discourse. The concealment of the “ethical” in legal discussion may be viewed as a symptom of modernity. It forms part of positivism’s efforts to separate law and morality, and to deny the existence of normative choices within the criminal law. As a consequence, the dichotomy between constructing and reconstructing the criminal law, between explanatory and normative perspectives, is often conflated. Indeed, the unconscious slippage from the “is” to the “ought” is a powerful rhetorical strategy of legal persuasion used by lawyers, judges and academics alike. Even in relation to contextual and critical scholarship, there is a tendency to merge “the question of explaining legal doctrine with the rational reconstruction of arguments and justifications for particular legal provisions”. 246 To provide resources for normative reconstruction, this section provides an overview of some significant theories. The purpose of this section is to review the origins, aims and key tenets of these theories, as well as highlight their implications for the reform of the criminal law. While some theories relate to protecting liberal values, such as preventing harm to individuals and limiting the power of the State, others are concerned with communitarian or social interests, such as welfare or the republican hybrid of “social freedom”. The search for a single unifying theory that can explain or guide our decisions to proscribe behaviour as criminal is pointless, as Paul McCutcheon concluded:

244

245

246

See R v Taikato (1996) 186 CLR 454, where the High Court held that the lawful justification for possessing an offensive weapon in a public place (in this case the irritant spray) rested on whether there was a well-founded fear of attack in that place, which was not satisfied on the facts. To counter the suppression of the relevance of gender to doctrinal development, leading legal feminists in Australia have set about re-imagining landmark rulings such as Taikato: see J Stubbs, “A Well-founded Fear? Giving Context to Self-defence in Taikato v R” in H Douglas, F Bartlett, T Luker and R Hunter (eds), Australian Feminist Judgments: Righting and Rewriting Law (London: Hart Publishing, 2014) Ch 15. For an exploration of the concept of “community” in legal discourse, as well as its power to create and legitimate communities by defining and excluding “others”, is explored in N Lacey, Unspeakable Subjects (Oxford: Hart Publishing, 1998) Ch 5. D Nelken, “Criminal Law and Criminal Justice: Some Notes on their Irrelation” in I Dennis (ed), Criminal Law and Criminal Justice (London: Sweet and Maxwell, 1986) p 154. [1.190]

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“[I]n many such cases a sense that the proscribed conduct is wrongful is as plausible an explanation as others that are offered and that sense is often the real motivating force behind the enactment of the prohibition … Ultimately it is probably futile to seek a single unifying criterion that distinguishes the lawful from the unlawful.” 247

The normative ideas addressed in this chapter are not exhaustive. The contribution of feminism to reconstructing the criminal law is not separately addressed in this chapter. This deficiency is rectified in Chapter 2, which reviews the feminist critique and reconstruction of the fundamental notions of justice, fairness, equality and privacy in the context of the criminal law. Later chapters address feminist critiques of defences such as provocation and self-defence, and specific crimes such as rape and domestic violence. This section pays limited attention to another increasingly influential external perspective—law and economics. This external perspective on law, which has been most influential in the United States, has only limited explanatory and normative power for the criminal law. Its fundamental weakness, like deterrence theory, is that it presumes that individual offenders are always self-interested and rational actors. Economic analysis suffers from an over-determined view of human behaviour. As Peter Alldridge notes, “[w]hen applied at all, it seems to have had greatest influence in punishments, procedural rather than substantive law and in relation to acquisitive crime rather than other offences”. 248 A broader regulatory perspective on the criminal law which transcends economic critiques is developing, however, and is discussed at [1.245].

The Chicago school of criminal law [1.195] “Law and economics” offers useful insights in relation to the criminalisation of commodities such as drugs, but when viewed as a grand theory for regulating types of behaviour, it necessarily involves crude forms of reductionism. For example, rape has been conceived as an “appropriation” of sexual intercourse—viewed as a commodity—on “unjust terms”. 249 On this view, the law of rape simply operates, or should operate, to protect the proprietary interests in one’s own body. 250 As feminists point out, a significant drawback to the objectification or commodification of sex is that it can attach no value to other non-material interests connected with sexuality requiring legal protection, such as pleasure, communication, trust, respect and sexual health. 251

Preventing Harm [1.200] Liberalism has exerted a significant influence on both the shape and substance of the

criminal law. Liberal political theory in the 19th century had a profound impact on criminal law since it required those creating laws, and thus interfering with individual freedom, to justify State intervention in the lives of citizens. Liberalism conceives personal liberty and autonomy as matters of prime importance. Individual freedom should not be curtailed simply to promote public morals or the interests of the State. 247 248 249 250 251

P McCutcheon, “Morality and the Criminal Law: Reflections on Hart-Devlin” (2002) 47 Criminal Law Quarterly 15 at 37–38. P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) p 13. D Dripps, “Beyond Rape: An Essay on the Difference Between the Presence of Force and the Absence of Consent” (1992) 92 Columbia Law Review 1780. Richard Posner, a leading figure in the law and economics movement, has written an analysis of rape which is discussed in P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) p 14. For an introduction to law and economics, see S Bottomley and S Bronitt, Law in Context (4th ed, Sydney: Federation Press, 2012) Chs 10–13.

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As a principle of political philosophy, this idea was famously championed in the mid-19th century by John Stuart Mill. Restrictions on individual liberty must be curtailed and are justifiable only in order to prevent harm to others: “The object of this essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties or the moral coercion of public opinion. That principle is that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right.” 252

The criminal law should not be used to prohibit non-harmful behaviour, or to prevent individuals from harming themselves, or simply to enforce a particular conception of morals, public interest or general welfare. As Norrie argues, the harm principle is a product of 19th century liberalism, reflecting a view that the social world is founded upon individual self-interest and rights. 253 It aims to accommodate the principal concerns of the State whilst respecting individual freedom and autonomy. The harm principle has played an influential role in the criminal law, informing debates over whether homosexuality and prostitution pose a sufficient threat of “harm to others” to warrant criminal sanction. It has also provided the philosophical framework for debating the scope of consent in the context of sadomasochistic assaults: see Chapter 10, [10.165] “Consent and sadomasochism”. The primary difficulty with the harm principle is the central notion of “harm to others”. The definition of what constitutes “harm to others” is notoriously unstable and difficult to apply. There is considerable disagreement over whether offensive or insulting behaviour is conduct that causes “harm to others”. Joel Feinberg in The Moral Limits of the Criminal Law: Harm to Others explored this aspect of the harm principle, proposing a broader conception of harm that encompasses a “setback to a person’s interest”. 254 In his second volume in this series, The Moral Limits of the Criminal Law: Offense to Others, Feinberg refines these ideas through the development of the “offense principle”, which would permit the use of criminal prohibitions in order to prevent serious offence or hurt to other persons. 255 As we shall see in Chapter 13, while superficially attractive, the history of criminalising “offensive conduct” reveals that the concept of offensiveness is legally constructed and enforced in ways that can discriminate against minority groups: [13.175]. Another difficulty with Feinberg’s theory is that it fails to address the moral, political and cultural nature of the particular interests “set back”. 256 Further questions and uncertainties concerning the scope of the harm principle have also arisen: • Must harm be direct, or can it be indirect? • What types of harm should be included (physical, psychological, economic or environmental harm)? 252 253 254

255 256

JS Mill, On Liberty (Harmondsworth, UK: Penguin, 1974) p 68. A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) pp 21–22. J Feinberg, The Moral Limits of the Criminal Law: Harm to Others (New York: Oxford University Press, 1984) p 215; see also J Schonsheck, On Criminalisation: An Essay in the Philosophy of the Criminal Law (Dordrecht: Kluwer, 1994). J Feinberg, The Moral Limits of the Criminal Law: Offense to Others (New York: Oxford University Press, 1988). A Ashworth and J Horder, Principles of Criminal Law (7th ed, Oxford: Oxford University Press, 2013) p 28. [1.200]

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• To what extent, if at all, does the principle accommodate conduct involving potential harm? 257 There are often sound moral, social and political reasons for broadening the harm principle to include conduct which causes indirect harm to others. As we shall explore in Chapter 11, this argument is often used by feminists to justify tighter criminal regulation of pornography; obscene publications are claimed to cause harm indirectly by increasing the likelihood of sexual assault and perpetuating discrimination against women: [11.240]. In Chapters 13 and 15, we will examine how some theorists have argued for the criminalisation of racial vilification on the ground that it is necessary to prevent psychological harm: [13.80], [15.225]. From a traditional liberal perspective, such expanded notions of harm significantly weaken the harm principle as a means of maximising freedom and curbing State power. In addition to the problems of indeterminacy and elasticity, another limitation is that the harm principle is anthropocentric in its focus. This means that it is difficult to justify criminal prohibitions where conduct causes harm to the environment but has no harmful effects on human beings. 258 It also has an individualistic focus which would confine the criminal law to measures preventing harm to individuals, rather than preventing harm to communities or groups. Efforts to justify criminal prohibitions in terms of harm stretch the principle to such an extent that the concept of harm has become nebulous. Moreover, the concept of harm is “morally loaded”, with the effect that the designation of a consequence as a “harm” involves a societal judgment with moral dimensions. 259 As a normative resource for the criminal law, the harm principle operates as an exclusory guide. It explains why some activities should not be criminalised, but it does not explain why some activities should be criminalised. Not only do we have problems in defining “harm”, but the harm principle is hardly descriptive of the modern criminal law. Many regulatory offences prohibit conduct that does not cause direct harm to others, while other crimes restrict conduct that only indirectly causes harm. Nevertheless, the harm principle holds enormous sway over debates in the criminal law. The better view is that the harm principle should be viewed “neither as ideal nor as explanation but rather as an ideological framework in terms of which policy debate about criminal law is expressed”. 260

Preserving Morality [1.205] The normative quality of labelling and punishing wrongdoing underscores the idea

that the criminal law serves, and ought to serve, the function of enforcing morality. Morality may be conceived either in religious or secular terms. In legal systems where religious and secular law is aligned—for example, in jurisdictions applying Islamic or Shariah law—religious morality acquires legal force. In common law systems, the Christian religion (more specifically, the canons of the Church of England) has exerted an influence on secular law through the ecclesiastical jurisdiction by exporting into the criminal law offences against God, such as 257

258

259

260

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The harm principle certainly supports the existence of crimes such as murder, assault and rape, but falters in explaining the criminalisation of many regulatory offences and inchoate crimes, such as attempts or conspiracy, unless an extremely elastic notion of harm is adopted: R Murgason and L McNamara, Outline of Criminal Law (Sydney: Butterworths, 1997) p 6. In debates about the legality of abortion, the further question arises whether the rubric “harm to others” extends to embryos and foetuses. See further, J Seymour, Childbirth and the Law (Oxford: Oxford University Press, 2000) Ch 8. N MacCormick, Legal Right and Social Democracy (Oxford: Oxford University Press, 1982) p 29; P McCutcheon, “Morality and the Criminal Law: Reflections on Hart-Devlin” (2002) 47 Criminal Law Quarterly 15 at 22. C Wells and O Quick, Lacey, Wells and Quick—Reconstructing Criminal Law: Texts and Materials (4th ed, Cambridge: Cambridge University Press, 2010) p 10. [1.205]

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perjury, blasphemy, sodomy and swearing and cursing, and the (now abolished) procedural defences of “benefit of clergy” and marital rape immunity.

Perjury as a crime [1.210] Most ecclesiastical crimes have been abolished, the principal exception being the crime of perjury (lying under oath). However, the rationale of perjury has changed over time. From its original religious rationale of protecting individuals from damnation for bearing false witness, perjury has been remodelled into a secular offence protecting the integrity of the administration of justice. 261

Religion has made its mark on the criminal law in many ways, though modern writers are apt to minimise or ignore its influence through their decontextualized, ahistorical accounts of legal doctrine. As Jeremy Horder recently observed, until the gradual secularisation of criminal law in the late 18th and 19th centuries, Christian teachings provided the primary normative framework for the “criminal law writers’ understanding of what ought to be criminal”. 262 However, this template was to be displaced by the “secular and rational turn” led by the rising influence of Benthamite rationality and humanism, which demanded total separation of church and state. 263 The influence of religion on the criminal law, though diminishing, was never entirely erased. Indeed, it significance was revived in the mid-20th century in a series of lectures by Lord Patrick Devlin, the distinguished English judge. 264 In those lectures, Lord Devlin advanced the normative principle that the criminal law ought to be used only to enforce morals, defending morality as the proper organising principle for criminalisation against encroachment from other principles, such as the prevention of harm and principle of welfare, discussed below. Devlin contended that there existed a common positive morality that binds members of a society together and that “society may use the law to preserve morality in the same way as it uses it to safeguard anything else that is essential to its existence”. 265 According to Devlin, the “suppression of vice is as much the law’s business as the suppression of subversive activities”; legislating against immorality was just as necessary as legislating against treason. 266 Rather than being gifted divinely from God, morality was “populist”, derived from the shared moral beliefs of the majority of the community. Accordingly, morality could vary across cultures and history. A common morality could be determined by inquiring into what “every right-minded person” presumes to consider immoral. 267 Whether specific conduct ought to be criminalised depended upon whether it attracted a widespread feeling of reprobation—a mixture of “intolerance, indignation, and disgust”. 268 Morality for this purpose was concerned simply with the “distinction between virtue and vice, between good and evil so far as it affects our actions”. 269 261 262 263 264

265 266 267 268 269

For a review of the transition of criminal process from a religious to a secular system of justice, see J Hunter and K Cronin, Evidence, Advocacy and Ethical Practice (Sydney: Butterworths, 1995) pp 9–24. J Horder, Ashworth’s Principles of Criminal Law (8th ed, Oxford: Oxford University Press, 2016) p 23. J Horder, Ashworth’s Principles of Criminal Law (8th ed, Oxford: Oxford University Press, 2016) p 30. P Devlin, The Enforcement of Morals (London: Oxford University Press, 1965). This book has been described as a “classic example of a populist morality justification” for the criminal law: N Bamforth, Sexuality, Morals and Justice (London: Cassell, 1997) p 179. P Devlin, The Enforcement of Morals (London: Oxford University Press, 1965) p 11. P Devlin, The Enforcement of Morals (London: Oxford University Press, 1965) pp 13–14. P Devlin, The Enforcement of Morals (London: Oxford University Press, 1965) p 15. P Devlin, The Enforcement of Morals (London: Oxford University Press, 1965) p 17. P Devlin, The Enforcement of Morals (London: Oxford University Press, 1965) pp 18–19. [1.210]

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There were limitations, however, in this approach. Devlin acknowledged that a prima facie entitlement to use the criminal law to enforce morality could be rebutted by other considerations. These “loose principles” acknowledged the practical difficulties of removing criminal laws once moral attitudes had changed; the importance of respecting personal privacy as far as possible; and, most importantly in his view, that the criminal law should be concerned with established minimum rather than maximum standards of conduct. 270 Lord Devlin’s theory concerning morality and the criminal law must be understood in its political-historical context. His lectures were delivered as a conservative counter-offensive against the gathering political momentum in the 1950s to “liberalise” offences against homosexuality and prostitution. He suggested that the Wolfenden Committee (1957) was wrong to adopt the harm principle as the basis for decriminalising homosexual acts performed in private between consenting adults. 271 Devlin argued that, since there is a general abhorrence of homosexuality, society would be entitled to use the law to prohibit or impose some regulation on these objectionable practices. The moral standards of a community are based on those of the “reasonable man”. 272 Since no society can teach morality exclusively by religion, the law must base itself on Christian morals and, to the extent of its ability, enforce them: “[n]ot simply because they are the morals of most of us, nor simply because they are the morals which are taught by the established Church … but for the compelling reason that without the help of Christian teaching the law will fail.” 273

While the religious basis of Devlin’s normative claims is problematic, his proposal to use law to enforce common moral values is supported by empirical research that suggests people are much more likely to follow laws that they believe are morally correct, and much more likely to break laws that counter their views of morality. Drawing on social psychological research, Tom Tyler concluded: “People are more likely to obey rules if those rules accord with two important values: legitimacy and morality. Perhaps most centrally, people obey rules when they view those rules as being more legitimate. Further they obey them when the rules accord with their personal views about what is right and wrong.” 274

Devlin’s theory, however effective it might be in terms of enforcement, runs into problems. This first difficulty is the claim that a common shared morality can be identified. Although modern society is comprised of many different cultures and religions, Devlin maintained that it was possible to identify shared moral values. In his view, morality in England in the 1950s was derived “broadly speaking” from Christian teachings. At the start of the 21st century, such claims are difficult to sustain in secular societies where religion does not buttress the law, and where separation of Church and State is vigilantly defended and constitutionally entrenched. There have been attempts by “new natural law” theorists to conceive morality as an objective set of secular values rather than as divinely derived or populist morals. By separating morality from religion, “new” natural law philosophers such as John Finnis have attempted to 270 271 272 273 274

These principles are critically reviewed in N Bamforth, Sexuality, Morals and Justice (London: Cassell, 1997) p 181. Referring to the Report of the Committee on Homosexual Offences and Prostitution (London: HMSO, Cmnd 247, 1957). P Devlin, The Enforcement of Morals (London: Oxford University Press, 1965) p 24. P Devlin, The Enforcement of Morals (London: Oxford University Press, 1965) p 25. T Tyler, “New Approaches to Justice in Light of Virtues and Problems of the Penal System” in W Oswald, S Bieneck, J Hupfeld-Heinemann (eds), Social Psychology of Punishment of Crime (Chichester: Wiley –Blackwell, 2009) p 20; see also T Tyler, Why People Obey the Law (New Haven: Yale University Press, 1990).

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widen its legitimacy and acceptability. 275 Finnis has developed an argument, in the context of defending laws prohibiting homosexuality, that the criminal law should be used to reinforce moral conceptions of right and wrong conduct. He argues that notions of right and wrong in this context are determined objectively by reference to “basic human goods” that are necessary for human flourishing, such as life, knowledge, play and the like. The problem of subjectivity is addressed by reference to “practical reasonableness”. Goods such as “family” are conceived in exclusively heterosexual terms tied to procreative capacity, with the inevitable effect of relegating all sex acts outside of this framework to the category of moral worthlessness and an appropriate area for legal repression. As Nicholas Bamforth cogently points out, such secular theories of morality rest on barely concealed theological foundations: “In reality his arguments make little or no sense unless one supports a conservative interpretation of Catholic sexual morality”. 276 Both populist and new natural law theories of morality have the potential to discriminate against minority groups. The image of a reasonably harmonious society, bound by shared moral values, sits uncomfortably with the realities of modern secular, pluralistic and multicultural communities, within which moral disagreement rages over issues such as abortion, euthanasia, pornography, prostitution, drug use and the like. The stability of a “common morality” is questionable even in relation to apparently uncontroversial crimes, such as murder, which purport to uphold the most fundamental of moral principles, namely, the “sanctity of human life”. Consider, for example, the scope of admissible defences for women who kill abusive partners. Early approaches to the problem of “battered wives” admitted no excuse or defence (eg, provocation or self-defence). Indeed, the justification for denying such claims was cast in terms of the importance of maintaining the sanctity of human life and fending off moral and social disintegration. In recent years, however, the courts have made significant changes to the law to recognise the realities confronting victims who, subject to repeated psychological and physical violence, resort to deadly force in order to defend themselves: Chapters 5 and 6. Devlin’s contention that the enforcement of communal morality is necessary for “social preservation”—the disintegration thesis—is also contestable. The moral foundations of society do not, as an empirical fact, disintegrate as a result of the increasing secular nature of modern society. As the legal positivist HLA Hart pointed out, Devlin produced no evidence to support his contention that deviation from accepted morality, such as homosexuality, threatens the existence of society. No reputable historian has maintained this thesis, and there is indeed much evidence against it. As a proposition of fact, Hart suggested that it was entitled to no more respect than the Roman Emperor Justinian’s statement that homosexuality was the cause of earthquakes. 277 Hart then went on to criticise Devlin for moving from the acceptable proposition that some shared morality binds a society together to the “unacceptable proposition that a society is identical with its morality … so that a change in its morality is tantamount to the destruction of a society”. 278 The fact that morality may change in a permissive direction does not mean that society will be destroyed. Hart also criticised Devlin’s notion of the populist model of common morality on the ground of its capacity to trample on minority rights:

275 276 277 278

J Finnis, Natural Law and Natural Rights (Oxford: Oxford University Press, 1980). N Bamforth, Sexuality, Morals and Justice (London: Cassell, 1997) p 174. HLA Hart, Law, Liberty and Morality (Oxford: Oxford University Press, 1963) p 50. HLA Hart, Law, Liberty and Morality (Oxford: Oxford University Press, 1963) p 51. [1.210]

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“The central mistake is a failure to distinguish the acceptable principle that political power is best entrusted to the majority from the unacceptable claim that what the majority do with that power is beyond criticism and must never be resisted.” 279

It is questionable as to whether Devlin actually made the latter claim, but there may be a problem with distinguishing between common morality and popular prejudice. From a normative perspective, Hart proposed that using the criminal law to enforce common morality would significantly curb individual freedom, since it may be used to protect individuals from causing harm (both physical and moral) to themselves or used where no harm is caused at all. The Irish criminal law scholar, Paul McCutcheon, brought some fresh perspective to the Hart-Devlin debate. 280 Notwithstanding the sustained criticism levelled at Devlin’s moral theory, he concluded that it had “something of merit”: “[T]he limits of the criminal law cannot be set by reference to a ‘simple principle’, be it harm, individual liberty or whatever. Instead the boundaries of the law are shaped by a variety of forces that operate as broad guidelines rather than as clear-cut criteria. Once this is acknowledged it must be accepted that it is legitimate and appropriate to take moral considerations into account in determining the contents of the criminal law. In short, the law-maker may properly justify a prohibition on an appeal to moral reasons.” 281

This moral concept of the criminal law fits better with certain areas of the law. The moralising force of the criminal law is most powerfully felt in relation to the laws governing sexual conduct and sexuality. In Chapter 11, we shall explore the wide range of crimes against morality that proscribe “unnatural acts” or “acts against nature” as unlawful. These legal euphemisms deal with a catalogue of sexual acts, ranging from incest to bestiality to sexual acts between males. In relation to the latter, “homosexual offences”, unlike other sexual offences, apply irrespective of the age or consent of the parties involved. Indecency and obscenity laws have also similarly evolved to protect moral interests—though, as we shall see, the objectives of the law have shifted from protecting (religious) morality to protecting (secular) community standards of decency. A similar trend is also evident in relation to property offences (Chapter 12) and public order offences (Chapter 13), where the jury is invited to apply “community standards” to determine whether conduct is dishonest or offensive respectively. In developing the law governing sexual conduct, judges often appeal to the moral foundations of the criminal law. For example, in Shaw v DPP, 282 the House of Lords revived a common law offence of “conspiracy to corrupt public morals” in order to criminalise the publishers of the Ladies Directory, which listed contact details of prostitutes. The justification for taking action against conduct promoting prostitution and promiscuity was cast in moral terms. Viscount Simonds held that: “In the sphere of criminal law I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State, and that it is their duty to guard it against attacks which may be more insidious because they are novel and unprepared for.” 283

See further, Chapter 8, [8.135]. 279 280 281 282 283

HLA Hart, Law, Liberty and Morality (Oxford: Oxford University Press, 1963) p 79. P McCutcheon, “Morality and the Criminal Law: Reflections on Hart-Devlin” (2002) 47 Criminal Law Quarterly 15. P McCutcheon, “Morality and the Criminal Law: Reflections on Hart-Devlin” (2002) 47 Criminal Law Quarterly 15 at 16. [1962] AC 220. Shaw v DPP [1962] AC 220 at 267. Viscount Simonds did not purport to “create” a new offence of conspiracy to corrupt morals, as is often claimed, but merely extended the existing offence of conspiracy, known at law, to a new category of case. For an excellent examination of the historical context of Shaw’s case, including its

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It would be wrong to conclude that a moral theory of criminal law necessarily supports the enactment of repressive and discriminatory sexual offences. Liberal theorists, like HLA Hart, proceed with the implicit assumption that morality would necessarily condemn homosexual conduct between consenting adults, a condemnation that liberalism would avoid by deeming such behaviour to be within the realm of private immorality that is none of the law’s business. As McCutcheon points out, this assumption is contestable in light of the significant shifts in community attitudes to homosexuality. 284 However, McCutcheon’s progressive approach to morality, which more closely tracks contemporary public opinion and community standards than Devlin’s approach discussed above, remains vulnerable to “law and order” populism. An alternative approach is to construct morality inclusively around a wider range of fundamental principles and values, such as equality before the law, fairness and privacy. We examine the potential to reconstruct doctrinal concepts, such as indecency and the “reasonable person”, using these values in Chapter 11, [11.145]. While it may be conceded that many serious offences (such as offences against the person and property crimes) have a moral dimension, the modern criminal law does not universally promote or enforce any particular conception of morals. The bulk of offences lack any explicit moral foundation, being essentially regulatory in nature—such as motor traffic regulations. Even in relation to the question of criminal responsibility, the commitment to moral blame is weakened by the rise of strict and absolute liability offences that dispense with fault. As explored above, this trend toward technocratic and actuarial models of criminal justice has largely “de-moralised” our notions of crime and criminal responsibility. The most important insight in relation to the role of morals in the criminal law is its symbolic and ideological effect; that is, the widespread belief in the community that the criminal law serves a moral function by creating and reinforcing moral consensus and conformity. Once again, consistent with Garland’s approach to punishment explored at [1.100], it is the symbolic and expressive functions of criminal laws in upholding core moral values that are more important than their instrumental effects.

Law reform and hidden liberal agendas [1.215] Law reform projects are generally preoccupied with promoting certainty, coherence and rationality in the criminal law. Such projects rarely explicitly draw on theory to inform law reform or policy development. A notable exception was the review of the law of consent by the Law Commission in the United Kingdom, where the Commission engaged (albeit in an appendix) in an extended philosophical discussion divided into two stages: Stage One examined the criminalisation of harmful activity from the approaches of liberalism, paternalism and legal moralism; Stage Two examined the impact of criminalisation on the process values, such as the importance of “the Rule of Law” and efficiency in the administration of justice. 285 The justification for criminalisation is similarly overlooked in law reform exercises in Australia. That said, the Commonwealth has issued general guidance to its agencies on when to resort to criminalisation as opposed to some other form of

284 285

impact upon the Hart-Devlin debates about the proper relationship between law and morality, see H Mares, “Shaw v Director of Public Prosecutions (1961)” in H Mares, I Williams and P Handler (eds), Landmark Cases in Criminal Law (London: Bloomsbury Press, 2017) Ch 11. P McCutcheon, “Morality and the Criminal Law: Reflections on Hart-Devlin” (2002) 47 Criminal Law Quarterly 15 at 36. Law Commission (England and Wales), Consent in the Criminal Law, Consultation Paper No 39 (London: HMSO, 1995) pp 245–283. Appx. C contained a review of the competing theories of liberalism, paternalism and legal moralism, ignoring entirely feminist and critical scholarship on gender violence, privacy, consent and autonomy. [1.215]

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regulation. 286 In considering whether to define a given provision as criminal or civil in character, the Guide noted that the most important factor to be considered is the effect of a criminal conviction. 287 Other questions relevant to determining whether criminalisation was warranted included the following: • What is the nature of the conduct seeking to be deterred? What are the circumstances surrounding the proposed provision? • Where does the proposed provision fit in the overall legislative scheme? • Does the conduct seriously harm other people? • Does the conduct in some way so seriously contravene our fundamental values as to be harmful to society? • Is it justified to use criminal enforcement powers in investigating the conduct? • How is similar conduct regulated in the proposed legislative scheme and other Commonwealth legislation? • If the conduct has been regulated for some time, how effective have existing provisions been in deterring the undesired behaviour? • What level and type of penalties will provide appropriate deterrence?

Promoting the Public Interest and Community Welfare [1.220] Rather than appeal to divinely-inspired or universal moral principles, judges and

legislators today tend to justify the use of criminal law in the more acceptable, secular terms of promoting the public interest, community values and public welfare. While appearing to be neutral and objective, these concepts are highly malleable political notions. Feminist scholarship has revealed that the public–private dichotomy is a malleable legal construct, with the power to render discrimination against women, children, gay men, lesbians and other minority groups legally invisible. As we shall explore in Chapter 2, [2.250], the notion of “public” is shaped by the “private”, and vice versa. At the substantive level, public interest and public policy are built into the structure of some criminal offences and defences. For example, in relation to the law of assault, the courts have placed “public interest” limitations on the scope of consent as a defence. As we explore in in Chapter 10 and Chapter 11, [10.165] and [11.15], public interest limitations have played a controversial role in determining the legality of ostensibly consensual acts of sadomasochism, revealing its malleability and contingency in the criminal law. There is a danger that the public interest simply serves as a legal device for cloaking the political and moral views of individual judges in neutral and legitimate terms. On the other hand, it may be argued that the increasing judicial resort to the language of public interest, community values and welfare reflects a changing conception within the judiciary of the courts as “community institutions”. 288 Gauging the public interest [1.225] How then should our governments, legislatures and courts gauge the public’s interests, values and welfare in reforming legal doctrine? Obviously, systematically gathering 286 287 288

See Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011). Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011) p 13. A Mason, “The Courts as Community Institutions” (1998) 9 Public Law Review 83. For a collection of essays debating the roles and limits of judicial versus parliamentary law-making, see T Campbell and J Goldsworthy (eds), Judicial Power, Democracy and Legal Positivism (Aldershot: Ashgate, 2000) Chs 10–18.

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evidence of “public opinion” on specific issues would be one approach. In the United States, Paul Robinson and John Darley undertook an empirical study on public attitudes to blameworthiness that revealed significant discrepancies between public opinion on the assignment of criminal responsibility and legal doctrine. 289 In the area of self-defence, for example, their research revealed a gap between public opinion and legal doctrine: public opinion was extremely supportive of “self-help remedies” far in excess of those permissible under the law. Since legal observance among citizens is influenced by the extent to which laws are believed to be morally sound, the authors concluded that the efficacy of the criminal law would be significantly improved by “closing this gap”. Indeed, the expansion of homeowner or dwelling defence laws in Australia and other jurisdictions may be viewed as such an effort to bring legal doctrine into closer alignment with community expectations about what is a reasonable response to violent home-invasions. Similar research done in the United Kingdom by Barry Mitchell—examining public attitudes to homicide—has revealed how the law diverges from the community on the significance of predisposition/planning, victim-status, and underlying motives (for example, mercy killings versus unintentional killings during the commission of violent crimes). 290 Public attitudes to the various scenarios revealed the complexity of factors that influence assessments of blameworthiness in murder cases and the difficulty of encompassing the wide range of scenarios within a single offence called murder and a mandatory penalty of life imprisonment. Mitchell’s research also revealed that unplanned killings in the course of committing other crimes (known as felony murder) were viewed as one of the more culpable forms of homicide, notwithstanding the moral objections levelled at “constructive homicide” by legal scholars. 291 However, these findings did not lead the Law Commission to re-evaluate whether constructive forms of homicide liability had any place in the modern criminal law. By contrast, most Australian and American jurisdictions, consistent with the general intuitions of justice and blameworthiness, retain some version of felony-murder: see Chapter 9, [9.130]. Research on public attitudes to terrorism offences in Australia has revealed similarly interesting insights. One scenario-based study by Mark Nolan revealed that lay perceptions of blameworthiness differed between identical terrorist acts depending on the type of motive possessed by the suspect. The identification of “religious motives” (which, as we shall explore in Chapter 15, has been integrated into the definition of “terrorism” in Australia) were generally identified as more blameworthy, raising the risk of attitudinal bias among both juries and judges. 292 A broader study, using the data gathered by the 2007 Australian Survey of Social Attitudes, revealed that perceptions of an increased threat of a terrorist attack correlates with expressions of support for tougher counter-terrorism measures. The implications of this data is that during times of heightened anxiety about terrorist attacks in Australia: 289 290

291

292

See P Robinson and J Darley, Justice, Liability and Blame (Boulder, CO: Westview, 1995). B Mitchell, “Further Evidence of the Relationship Between Legal and Public Opinion on the Law of Homicide” [2000] Criminal Law Review 814. The research was a Government–commissioned review of homicide in the UK: see Law Commission (England and Wales), Partial Defences to Murder, Final Report No 290 (London: HMSO, 2004) [2.19] –[2.35]. For an excellent article examining the justification for retaining constructive malice in homicide see P Bindon, “The Case for Felony Murder” (2006) 9(2) Flinders Law Journal 149. In a study consisting of 822 interviews, 53% of interviewees rated the scenario of a killing which occurred during a burglary as the most serious form of homicide: B Mitchell, “Public Perceptions of Homicide and Criminal Justice” (1998) 38(3) British Journal of Criminology 453 at 459. See also B Mitchell, “Further Evidence of the Relationship Between Legal and Public Opinion on the Law of Homicide” [2000] Criminal Law Review 814 and BJ Mitchell and JV Roberts, “Sentencing for murder: exploring public knowledge and public opinion in England and Wales” (2012) 52 (1) British Journal of Criminology 141. See M Nolan, “Lay Perceptions Of Terrorist Acts and Counter-Terrorism Responses” in M Gani and P Mathew (eds), Fresh Perspectives on the “War on Terror” (Canberra: ANU E Press, 2008), at http:// www.epress.anu.edu.au/war_terror_citation.html (cited August 2016). [1.225]

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“Public discourse will be steered towards discussions of the need for the extension of police powers to address terrorism. The complex interplay of media exposure, political initiative and public expressions of grief and outrage will facilitate a focus on measures of combating terrorism. This focus will make it less possible for a rational debate and a consideration of human rights to occur.” 293

The difficulty with the public interest, and use of public opinion research to substantiate these claims, is that they are neither neutral nor autonomous. They are highly contingent upon historical, political and social contexts. Public responses to particular conduct are often shaped by moral panics and the politics of law and order. As Stanley Cohen observed in Folk Devils and Moral Panics, his classic sociological study of “Mods” and “Rockers” in post-war Britain: “Societies appear to be subject, every now and then, to periods of moral panic. A condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests; its nature is presented in a stylized and stereotypical fashion by the mass media; the moral barricades are manned by editors, bishops, politicians and other right-thinking people … Sometimes the panic passes over and is forgotten, except in folk-lore and collective memory; at other times it has more serious and long-lasting repercussions and might produce such changes as those in legal and social policy or even in the way the society conceives itself.” 294

As we shall examine in Chapter 14, the enactment of Australian drug laws has been influenced by successive domestic and international moral crusades. These began with a campaign against the Chinese vice of opium-smoking in the 19th century, and continue today in the form of an international “War Against Drugs”. A fundamental difficulty with demands to make criminal law better conform to public opinion is that it overlooks the role of criminalisation itself in forming and reinforcing public attitudes to certain types of conduct —moral views held within the community do not exist in a legal vacuum. The increasing public awareness of “addiction”, “domestic violence” and “drink-driving” as crimes has dramatically changed the community’s moral outlook on previously acceptable conduct. In this way, the law, through education and enforcement policies, plays a role in creating and (re)forming public opinion towards particular wrongdoing. While public interest and public opinion are malleable concepts, and thus dubious guides for criminalisation, they have considerable symbolic and rhetorical force. As Wells and Quick have observed: “Both in terms of the developing definition of crime and in terms of its enforcement, the intangible phenomenon of ‘public opinion’ and, perhaps more importantly, perceptions of that phenomenon, are enormously influential.” 295

Gauging the welfare of the community [1.230] The idea that the criminal law should be applied to promote community

welfare—what has been termed the “principle of welfare”—arises from the dissatisfaction with asocial individualism of JS Mill’s harm principle and the paternalism of Lord Devlin’s legal moralism as the appropriate guides for the criminal law. 296 It has been argued that societal welfare, though admittedly broad, is a tangible concept capable of promotion by the

293

294 295 296

L Roberts and D Indermaur, What Australians Think About Crime and Justice: Results from the 2007 Survey of Social Attitudes—Research and Public Policy Series 101 (Canberra: Australian Institute of Criminology, 2009) p 25. S Cohen, Folk Devils and Moral Panics (London: Paladin, 1973) p 9. C Wells and O Quick, Lacey, Wells and Quick - Reconstructing Criminal Law: Texts and Materials (4th ed, Cambridge: Cambridge University Press, 2010) p 28. C Wells and O Quick, Lacey, Wells and Quick - Reconstructing Criminal Law: Texts and Materials (4th ed, Cambridge: Cambridge University Press, 2010) p 28.

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criminal law. 297 In the form advanced by Nicola Lacey, the principle of welfare seeks to reconstruct the criminal law around a different set of collective, as opposed to individual, interests. Jeremy Horder, more recently, has framed these interests as those “public goods” that are necessary to support “lives in common”. 298 From this perspective, what is (or more precisely what should be) considered a crime depends upon an evaluation of what is in the “best interests” of society as a whole. Thus, legislation prohibiting activities which may lead to environmental damage can be supported on the basis that it promotes the well-being of the eco-system, and health and amenity of the whole community. A similar justification may be made for offences relating to enhancing public safety, whether such threats arise from terrorists or drivers distracted by their mobile phones. Thus, the welfare principle provides justification for prohibiting a wide range of “consensual” conduct that might not support criminalisation under the harm principle (because the conduct which causes or risks only harm to oneself). Prohibiting the failure to wear seatbelts or bike helmets may be legitimate on the ground that the resulting negative social and public health effects may impose excessive burdens upon the community’s healthcare system and social services. By the judicious use of the criminal law to better regulate such activities, burdens on the whole community may be avoided, or at least mitigated. Like the principle of utility, the principle of welfare opens a wide, potentially unlimited, spectre of criminalisation. Lacey seeks to impose limits on the principle of welfare by grounding it in those values, needs and interests that society, through its democratic processes, regards as fundamental to its collective social functioning, and thus requiring protection by the criminal law. These community values, needs and interests are democratically rather than morally derived, and so can be distinguished from Lord Devlin’s approach. It also recognises that collective interests extend to addressing matters of individual concern such as “the fulfilment of certain basic interests such as maintaining one’s personal safety, health and capacity to pursue one’s chosen life plan”. 299 If we accept this conception, then the dichotomy between liberalism and welfare appears to be overstated, with the effect that much “liberalism orthodoxy is welfarist”. 300 On this view, the principle of welfare serves as a balance or check on the principle of autonomy. For example, the voluntary taking of drugs may be considered an expression of personal autonomy—what Horder has termed “lifestyle autonomy”. 301 Although some self-harming conduct is legitimately tolerable under the harm principle, the preservation of social welfare may call for its criminalisation because of the costs—financial and social—to the community. We explore the tension between the principles of autonomy and welfare in our discussion of drug prohibition in Chapter 14, [14.20]ff. 297

298

299 300

301

AV Lundstedt, Legal Thinking Revisited (Stockholm: Almqvist and Wiksell, 1956) p 137. See also N Lacey, State Punishment: Political Principles and Community Values (London/New York: Routledge, 1988) Chs 2 and 7; N Lacey, Unspeakable Subjects (Oxford: Hart Publishing, 1998) Ch 2. Discussing the renowned legal positivist philosopher Joseph Raz, Horder notes that the concept of “public good” is much more than the aggregation of individual goods, requiring the identification of those goods that serve the interests of the community as a whole: J Horder, Ashworth’s Principles of Criminal Law (8th ed, Oxford: Oxford University Press, 2016) p 47. N Lacey, State Punishment: Political Principles and Community Values (London/New York: Routledge, 1988) p 104. N Lacey, Unspeakable Subjects (Oxford: Hart Publishing, 1998) p 54. Liberal scholars rarely subscribe to pure models of liberalism or individual autonomy, recognising a wide range of restraining principles, policies and values. Respect for human rights has gained much ground as a limiting set of principles following the Human Rights Act 1998 (UK): see generally J Horder, Ashworth’s Principles of Criminal Law (8th ed, Oxford: Oxford University Press, 2016) Ch 3. The idea is based on the right of each person to choose how to live his or her life, which finds expression in JS Mill’s harm principle: J Horder, Ashworth’s Principles of Criminal Law (8th ed, Oxford: Oxford University Press, 2016) pp 68ff. [1.230]

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The difficulty with an unqualified acceptance of welfare as the basis for criminalisation is defining with any precision its goals. As the Swedish legal realist, Anders Vilhelm Lundstedt, has noted, the goals of social welfare extend broadly to include: “[s]uch things as suitable and well-tasting food, appropriate and becoming clothes … dwellings furnished in the best and most comfortable way, security of life, limb and ‘property’, the greatest possible freedom of action and movement … in brief, all conceivable material comfort as well as the protection of spiritual interests.” 302

These are obviously very general aspirations and there are dangers, even when the identification of these goals is entrusted to the democratic process, that applying the principle of welfare may lead to over-criminalisation and to harsh and intrusive policies of law enforcement. In most instances, the principle of welfare is not conceived as an overriding principle but, rather, as a rival to the harm principle that mediates and limits arguments based on the importance of individual autonomy. Though in Ashworth’s liberal-welfare framework, the danger is that the promotion of communal interests is legitimate only to the extent that they do not significantly encroach upon individual autonomy and personal freedom. Across many compartments of the criminal law, there is a conflict or tension between individual and collective interests. As we shall explore in Chapters 10 and 11, the defence of consent in relation to offences against the person purports to uphold the liberal principle of autonomy (individual interest), but is subject to limits deemed necessary in the public interest (community interests). Legal debate is trapped within an either/or dialogue between liberalism and welfare: either the law should prioritise the interests of individuals over community, or vice versa. As we shall explore in our discussion of sexual assault in Chapter 11, it is possible to transcend this dichotomy. Rather than being viewed as rival models, autonomy and welfare may be drawn into a more constructive dialogue, one that offers the prospect of remodelling consent through the adoption of standards based on positive communication and disclosure of risks. As we shall explore in the next section, the pervasive disillusionment with welfarist models has fostered cultures of control and security. To counter this punitive turn in criminal justice in the last two decades of the 20th century, some theorists have sought to return to the notion of freedom as the aim of the system—though defining this concept as positive social freedom rather than negative individual liberty. For convenience, we have grouped these various writings under the heading “Social freedom and republican theories of criminal justice”.

Social Freedom and Republican Theories of Criminal Justice [1.235] Evidence of social exclusion caused and compounded by the criminal justice system

has led some scholars to rethink criminal justice models. David Garland in The Culture of Control describes the emergence of a “crime complex” in the United States and United Kingdom in the late 20th century. Garland traces the shifts in policing, criminalisation and punishment from “penal welfarism” to the “penal modality”, with the latter justifying new punitive “law and order” measures. 303 Rejecting these models of crime control, in the final chapter of this text, Garland advocates a more “inclusionary” model of criminal justice. In similar terms, Andrew Sanders and Richard Young have argued for a remodelled criminal justice system, the principal purpose of which should be the maximising of “freedom”. 304 But freedom, like equality, is a deeply contested notion that yields different visions depending on 302 303 304 70

AV Lundstedt, Legal Thinking Revisited (Stockholm: Almqvist and Wiksell, 1956) p 140. D Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001). A Sanders and R Young, Criminal Justice (2nd ed, London: Butterworths, 2000). [1.235]

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the particular political tradition. While theories based on freedom are packaged in different forms, they share similar characteristics. They reject exclusionary, retributive and utilitarian models, aligning themselves more closely to victim rights, human rights and restorative justice movements. Such theories may be distinguished from communitarian, welfare models (discussed above) by the location of freedom, liberty and non-domination at their core. In this section, we focus on the contribution of one such model—based on republican principles developed by two leading Australian theorists—that seeks to promote a socially inclusive idea of freedom which could be used to guide the reform of the criminal justice system. In Not Just Deserts—A Republican Theory of Criminal Justice, John Braithwaite and Phillip Pettit propose a comprehensive normative theory of criminal justice. 305 The criminal justice system is conceived in terms of interrelated sub-systems of investigation, prosecution, guilt-determination and punishment. This comprehensive aspect of republican theory is consistent with Lacey’s approach to “criminalization”. Braithwaite and Pettit provide new theoretical resources, not merely for reconstructing the aims of punishment around nonretributive goals (as the title of their book suggests), but also for redefining the aims and scope of the criminal law and criminal process. What follows is necessarily a brief description of a complex theory that combines insights from criminological and sociological research on crime (particularly theories of reintegrative shaming), and the political philosophy of republicanism. 306 Using insights from both criminology and political philosophy, Not Just Deserts builds a case against the retributive and utilitarian models for the criminal justice system. Retributive justice is rejected by the authors because it has no purpose. It conceives criminal justice as the means of ensuring offenders receive their “just deserts” (that is, punishment proportionate to their wrongdoing) rather than in terms of ends or consequences. While deterrence is not susceptible to this criticism, the utilitarian model is also rejected because maximising happiness or the welfare of the majority is a potent threat to individual freedom. Utilitarianism renders rights unstable: “It fails to provide the criminal justice authorities with reason to take the rights seriously, attaching moral as well as legal force to them”. 307 Furthermore, where necessary to maximise overall happiness, utilitarian models would subscribe to penalisation of the innocent, “preventionism” and over-criminalisation. 308

Republican inequality perspectives on crime and criminal justice [1.240] Republicanism integrates explanatory and normative accounts of crime. Braithwaite’s research has identified that inequality was an important factor in understanding criminal behaviour, discovering striking correlations between levels of homicide and inequality with society. Low-crime societies were characterised by active community engagement in defending the institutions of freedom. As crime is conceived as the domination by one person over another, legal responses to crime must promote freedom as non-domination. Freedom, equality and community are “key explanatory variables and central normative ideals”. 309

305 306

307 308

J Braithwaite and P Pettit, Not Just Deserts —A Republican Theory of Criminal Justice (Oxford: Clarendon Press, 1990). J Braithwaite and P Pettit, Not Just Deserts—A Republican Theory of Criminal Justice (Oxford: Clarendon Press, 1990). See also J Braithwaite, Crime, Shame and Reintegration (Sydney: Cambridge University Press, 1989) and P Pettit, Republicanism—A Theory of Freedom and Government (Sydney: Oxford University Press, 1997). J Braithwaite and P Pettit, Not Just Deserts—A Republican Theory of Criminal Justice (Oxford: Clarendon Press, 1990) p 44. J Braithwaite and P Pettit, Not Just Deserts—A Republican Theory of Criminal Justice (Oxford: Clarendon Press, 1990) p 52. [1.240]

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Not Just Deserts offers a comprehensive and consequentialist theory of criminal justice. According to this theory, the purpose of the criminal justice system should be directed to promoting a conception of republican liberty called “dominion” or “freedom as nondomination”. 310 Republicanism is concerned with freedom, though it is not the conception of liberty offered by classical liberalism. Both in its negative and positive forms, liberalism envisages an asocial concept of individual freedom that must not be interfered with by others. Republican theory reconceives freedom in social and relational terms: “Republicans differ from classical liberals … in arguing for a different interpretation of what the ideal of negative liberty is more or less bound to involve. According to the classical liberal interpretation, the sort of condition required is that of being left alone, a condition exemplified par excellence in the solitary individual. According to the republican interpretation, it is the condition of citizenship or equality before the law.” 311

Braithwaite has summarised “dominion” as follows: “Dominion is a republican conception of liberty. Whereas the liberal conception of freedom is the freedom of an isolated atomistic individual, the republican conception of liberty is the freedom of a social world. Liberal freedom is objective and individualistic. Negative freedom for the liberal means the objective fact of individuals being left alone by others. For the republican, however, freedom is defined socially and relationally. You only enjoy republican freedom—dominion—when you live in a social world that provides you with an intersubjective set of assurances of liberty. You must subjectively believe that you enjoy these assurances, and so must others believe. As a social, relational conception of liberty, by definition it also has a comparative dimension. To fully enjoy liberty, you must have equality-of-liberty with other persons. If this is difficult to grasp, think of dominion as a conception of freedom that, by definition, incorporates the notions of liberté, égalité, and fraternité; then you have the basic idea.” 312

This model of freedom, dominion, has three components. A person enjoys full dominion if and only if: • the person enjoys no less a prospect of liberty than that which is available to other citizens; • this condition is common knowledge among citizens, so that the person and nearly everyone else knows that the person enjoys the prospect mentioned, they and nearly everyone else knows that the others generally know this too, and so on; and • the same person enjoys no less a prospect of liberty than the best that is compatible with the same prospects for all citizens. 313 It is the subjective aspect of dominion which sets Braithwaite and Pettit’s theory apart from other consequentialist theories such as utilitarianism. By defining their goal in such a way, republican theory aims to protect individuals in a way that other consequentialist theories do not. 314 Braithwaite and Pettit argue that securing this state of “subjective dominion” is critical to the protection of individual rights: 309

310 311 312 313 314

J Braithwaite, Regulation, Crime, Freedom (Aldershot: Ashgate, 2000) p xii. This collection of previously published essays and articles provides an excellent overview of the key elements of republican theory and the empirical research that underscored its development and refinement. J Braithwaite and P Pettit, Not Just Deserts—A Republican Theory of Criminal Justice (Oxford: Clarendon Press, 1990) p 51. J Braithwaite and P Pettit, Not Just Deserts—A Republican Theory of Criminal Justice (Oxford: Clarendon Press, 1990) p 58. J Braithwaite, “Inequality and Republican Criminology” in J Hagan and R Peterson (eds), Crime and Inequality (Stanford, CA: Stanford University Press, 1995) p 279. J Braithwaite, “Inequality and Republican Criminology” in J Hagan and R Peterson (eds), Crime and Inequality (Stanford, CA: Stanford University Press, 1995) pp 64–65. A von Hirsch, Censure and Sanctions (Oxford: Oxford University Press, 1993) p 22.

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“One of the most common ways in which dominion can be reduced in a society is through subjective erosion: through people, even perhaps those people who have reasonable liberty prospects, coming to lose faith in the prospects provided … Montesquieu writes in suitable vein ‘The political liberty of the subject is a tranquillity of mind, arising from the opinion each has of his [or her] safety. In order to have this liberty, it is requisite the government be so constituted as one man [or woman] need not be afraid of another’.” 315

Braithwaite and Pettit offer the example of convicting an innocent person to placate an angry mob. A republican will not countenance this, even where a utilitarian might, because to do so would threaten the right not to be convicted of an offence unless guilty: “It is part of the very concept of having dominion—that a person cannot enjoy dominion fully if she [or he] perceives or suspects that the agents of the state, or indeed any other powers in the land, will not be scrupulous in respecting her [or his] rights.” 316

To assist in interpreting the abstract goal of dominion, republican theory identifies four general presumptions, which serve as middle-range principles: • Parsimony is the presumption in favour of parsimony, or in other words, the “presumption … in favour of less rather than more criminal justice activity”. This presumption arises because any criminal justice intervention does immediate and unquestionable damage to someone’s dominion (whether the intervention be investigation, arrest, detention, prosecution or punishment), whereas the benefits of the initiative are always of “a distant and probabilistic character”. Thus, the onus of proof should be on those justifying any intervention. • Checking of power is the presumption that the power enjoyed by criminal justice authorities will always be subject to checks. This presumption arises because, in its absence, people’s subjective dominion is threatened. It supports the recognition of rights (such as the right to a fair trial), as well as checking mechanisms such as accountability mechanisms. • Reprobation is the presumption in favour of reprobation, or disapproval of crime, based on the recognition that such reprobation promotes dominion by reducing crime, and also by improving people’s understanding of what the criminal justice system does (which promotes subjective dominion). • Reintegration is the presumption that the criminal justice system “should pursue reintegration in the community, in particular the restoration of dominion, for those citizens who have had their dominion invaded by crime or punishment”. 317 The republican regulatory approach has implications for a wide range of debates in the criminal law, including: • the objectives and priorities of policing; • the acceptable limits of surveillance, investigation and prosecution; • the scope and type of criminal laws; and • sentencing. 318 315 316 317 318

J Braithwaite and P Pettit, Not Just Deserts—A Republican Press, 1990) p 68 (footnotes omitted). J Braithwaite and P Pettit, Not Just Deserts—A Republican Press, 1990) p 76. J Braithwaite and P Pettit, Not Just Deserts—A Republican Press, 1990) p 91. J Braithwaite and P Pettit, Not Just Deserts—A Republican Press, 1990) pp 90–132.

Theory of Criminal Justice (Oxford: Clarendon Theory of Criminal Justice (Oxford: Clarendon Theory of Criminal Justice (Oxford: Clarendon Theory of Criminal Justice (Oxford: Clarendon

[1.240]

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As a consequentialist theory, the purpose of the criminal justice system and its integrated sub-systems is conceived in terms of the maximisation of dominion. Unlike the harm principle, republicanism has a positive target—the promotion of dominion—rather than a negative one—the prevention of harm to others. Like all of the theories discussed above, republicanism has strengths and weaknesses. Dominion is conceived in terms of “citizenship” or “equality before the law”, and a central principle is “equality-of-liberty-opportunity”. By using these concepts, Braithwaite and Pettit hope to avoid the limitations of formal or strict equality, and therefore offer remedies for individuals and groups who have typically been denied liberty by virtue of their status as non-citizens, such as women, children and Indigenous persons. However, the right to equality, including the right to equality of opportunity, has been subject to extensive criticism. As we shall explore in Chapter 2, critical scholars and feminist theorists have expressed scepticism as to whether equality jurisprudence, conceived as the right to same treatment rather than respect for difference, can address entrenched structural disadvantage: [2.205]–[2.220]. The failure of anti-discrimination laws based on promoting “equality of opportunity” to remedy gender and race-based disadvantage is a challenge that republican theorists must confront and resolve. The centrality of “rights” to the promotion of republican goals may also attract criticism. As we shall explore in Chapter 2, there is a large body of literature examining the value and dangers of casting interests in these terms—the so-called “critique of rights debate”: [2.135] and [2.250]. There is a strong tendency in liberal discourse to “fetishise” rights. Legal rights are considered as “self-executing”, taking no account of the social and cultural disadvantage of individuals who theoretically possess particular rights. While the structural and historical limitations of rights must be acknowledged, republicanism attaches considerable value to the instrumental and symbolic functions of rights. From a symbolic perspective, rights as a juridical form—particularly those designated as fundamental or human rights—have a powerful moralising and normative effect. Rights need not be abandoned, but redefined and harnessed to promote the republican goal of dominion. Groups that have been traditionally disenfranchised are rightfully sceptical of the emancipatory potential of social liberalism based on liberté, égalité, and fraternité (which should be understood to include sorority). In re-fashioning concepts and rights in a manner that most effectively promotes a social concept of liberty—“freedom as non-domination”—republican theorists must be sensitive to these issues of structural disadvantage. What is the likely prognosis for reconfiguring the criminal justice system around social freedom and republican values? While providing normative resources for critique, the theorists are realistic about the limited influence of inclusionary models in the prevailing political climate of “law and order”. As Andrew Sanders and Richard Young have observed in the context of the United Kingdom: “The contrast between the integrated and the excluded is as striking in the field of criminal justice as in other fields of social policy. Arguably, major advances in liberty are only ever secured in the United Kingdom when the middle classes are threatened. If so, we can expect this divided society to manifest these exclusionary processes for a long time to come, and for ‘freedom’ in the sense we use it here to be given little weight by policy-makers and practitioners.” 319

The culture which promotes penal populism and law and order is not beyond contestation. Indeed, the growing acceptance of the relevance of human rights norms to the future of criminal law and justice in Australia (in practitioner, policy as well as academic communities) 319

A Sanders and R Young, “From Suspect to Trial” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (4th ed, Oxford: Oxford University Press, 2007) p 971.

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offers a new framework of accountability. 320 The fundamental importance of this perspective, which is used to assess the legitimacy of both criminalisation and law enforcement, is now legally underscored by the domestic incorporation of human rights legislation in two jurisdictions in Australia. The adoption of human rights legislation in the Australian Capital Territory and Victoria is discussed further in Chapter 2, [2.150].

Regulatory Theories of Criminal Justice [1.245] An increasingly significant theoretical perspective bearing on criminalisation, and

more significantly decriminalisation, is regulatory theory. 321 Within this theory, criminalisation is the ultimate, but not always the most effective tool for regulating conduct and promoting legal compliance. The field, pioneered by Ayres and Braithwaite in Australia, aimed to transcend the deregulation debate of the late 1980s, which pitched State-centric “command and control” regulation against private sector self-regulation based on incentives rather than penalties. Drawing on empirical studies across various fields, responsive regulation has become a dominant model for rethinking “strategies of governing” activities of both individual actors and corporations, seeking to strike a balance between persuasion (creating incentives) and coercion (imposing costs or penalties) as a means for achieving legal compliance. To visually represent the interaction between persuasion and coercion, Ayres and Braithwaite developed the Enforcement Pyramid, see Diagram 1. Diagram 1: Enforcement pyramid

Source: This version of the pyramid appears in J Braithwaite, “Inequality and Republican Criminology” in J Hagan and R Peterson (eds), Crime and Inequality (Stanford, CA: Stanford University Press, 1995) p 299.

The pyramid maximises the use of non-legal, informal modes of promoting compliance. Regulatory responses are escalated in the face of non-compliance, first through civil law and 320

321

See generally J Gans, T Henning, J Hunter and K Warner, Criminal Process and Human Rights (Sydney: Federation Press, 2011); R Hogg, “Resisting a Law and Order Society” in T Anthony and C Cunneen (eds), The Critical Criminology Companion (Sydney: Hawkins Press, 2008) p 287. I Ayres and J Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (Oxford: Oxford University Press, 1992). See generally, A Freiberg, The Tools of Regulation (Sydney: The Federation Press, 2010) and S Bottomley and S Bronitt, Law in Context (4th ed, Sydney: The Federation Press, 2012) Ch 9. [1.245]

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administrative measures, with regulatory responses with more coercive effect, such as license revocation, criminalisation and, as last resort, punishment and incapacitation. Neil Gunningham summarises the “dialogic regulatory culture” as follows: “This approach conceives of regulation in terms of in which regulators signal to industry their commitment to escalate their enforcement response whenever lower levels of intervention fail. Under this model, regulators begin by assuming virtue (to which they respond with cooperative measures) but when their expectations are disappointed, they respond with progressively punitive/coercive strategies until the regulatee conforms.” 322

The pyramid has been influential in shifting regulatory strategies from “zero tolerance” prosecution policies to more responsive strategies that prioritise education and prevention, as well as exploring hybrid responses that extend the regulatory reach of enforcement agencies by enlisting assistance from third-party actors, under the banner of “Smart Regulation”. 323 The literature on regulatory law is voluminous. 324 The enforcement pyramid has influenced approaches to regulation across a wide range of fields, from occupational health and safety, environmental regulation, public health and corporations law. 325 The potential application of the enforcement pyramid to other fields, such as domestic violence, is explored in Chapter 13, [13.45]. As noted at [1.95], the regulatory pyramid has also been reconceptualised within the framework of restorative justice. The main criticisms levelled at early accounts of these regulatory models relate to their failure to give adequate attention to legitimacy issues, specifically the rights of persons and entities subjected to regulatory actions, and overlooking the “constitutional values of proportionality and consistency, which are themselves rooted in the right to fair and equal treatment”. 326 That said, later work by Braithwaite has grounded their theory of criminal justice in republican ideals, which demand transparency and checks and balances in the exercise of state power. These principles should extend, by implication, to the regulatory strategies at all levels of the pyramid!

CONCLUSION: INTEGRATING CRIMINAL LAW AND THEORY [1.250] As the introductory quotations to this chapter suggest, theory offers the tantalising

prospect of a deeper, more authentic, understanding of the criminal law. Yet, in relation to the criminal law, theory very often fails to live up to its promise. Students, teachers and practitioners may legitimately question the value of theoretical perspectives on the criminal law. After all, competent legal analysis and a lifetime of criminal practice may be undertaken without any conscious intrusion of theory. However, ideas about the criminal law—how it works and ought to work—do inform our understanding of the process and substance of the criminal law. Whether packaged as “common sense” or “fundamental principles” guiding the framing of offences, theories about how the law is or should be constructed are influential both in instrumental and symbolic terms. As we shall see in Chapters 2 and 3, liberalism has played a powerful role in the modern constitution of the criminal law, especially in the 322 323

324

325

326

N Gunningham, “Enforcement and Compliance Strategies” in R Baldwin, M Cave and M Lodge (eds), The Oxford Handbook of Regulation (Oxford: Oxford University Press, 2010) pp 120–121. This extension to responsive regulation is explained in N Gunningham, “Enforcement and Compliance Strategies” in R Baldwin, M Cave and M Lodge (eds), The Oxford Handbook of Regulation (Oxford: Oxford University Press, 2010). For a useful survey of the history and current debates in regulatory theory, as well as its impact across a range of legal fields, see R Baldwin, M Cave and M Lodge (eds), The Oxford Handbook of Regulation (Oxford: Oxford University Press, 2010). The impact of the enforcement pyramid on reshaping the regulatory strategies of Australian Securities and Investment Commission (ASIC) is critically evaluated in V Comino, Australia’s “Company Law Watchdog”: ASIC and Corporate Regulation (Sydney: Thomson Reuters, 2015). K Yeung, Securing Compliance: A Principled Approach (Oxford: Hart Publishing, 2004) pp 167–170.

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development of general principles and principles of criminal responsibility. Engagement with critical perspectives reveals the contingent and contradictory nature of these principles, providing scope for their normative reconstruction using alternate social, political and moral ideas. Criminal law, as a discipline, defines its own jurisdiction. Its conceptual “territory”, as Lindsay Farmer observes, is presently narrowly defined in terms of the principles of criminal responsibility—a focus that fosters an atheoretical, ahistorical obsession with definition. 327 This preoccupation with criminal responsibility has other disciplinary consequences. Deeper engagement in theoretical questions raised by feminist, critical, historical, medico-legal and socio-legal scholarship is considered unnecessary, and even disruptive, to the traditional analytical enterprise. Indeed, the exclusion of these “eclectic” perspectives is sometimes justified by the demands of practical legal education. Much debate within legal education circulates around an unproductive polarity between its “academic” versus “practical” objectives. Andrew Goldsmith and Christine Parker explore this tension and sketch a “transformative vision of legal education”. 328 In their view, the tension between academic and practical objectives—which daily confronts law students, teachers, practitioners and judges—should be embraced positively rather than negatively. They suggest that Australian law schools should reconstitute themselves by embracing and entrenching: • a broad conception of the legal knowledge which we are responsible for passing on—a knowledge based on a variety of disciplines from the humanities, social sciences and elsewhere, that allow law students to study the diverse meanings and consequences of law as a social and human variable in everyday life; and • an expanded conception of the field of legal practice for which we prepare our students, so as to integrate a critically and ethically oriented understanding of how lawyers and others carry law and legal institutions into the communities in which they live and work. 329 Understanding the criminal law, or any other legal subject, as a complex social phenomenon rather than simply a set of legal rules requires engagement with a wide array of perspectives. In promoting this multi-perspective approach, we have paid particular attention to neglected historical and comparative perspectives on the criminal law. 330 We envisage that this chapter, which functions both as an introduction and conclusion, will provide the explanatory and normative foundations for a deeper understanding of the meanings and limits of the criminal law in modern Australian society.

327 328 329 330

L Farmer, “The Obsession with Definition: The Nature of Crime and Critical Legal Theory” (1996) 5 Social and Legal Studies 57. A Goldsmith and C Parker, “Failed Sociologists in the Marketplace: Law Schools in Australia” (1998) 25(1) Journal of Law and Society 33. A Goldsmith and C Parker, “Failed Sociologists in the Marketplace: Law Schools in Australia” (1998) 25(1) Journal of Law and Society 33 at 47. An approach particularly promoted by P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) pp 23–24. [1.250]

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General Principles The truth is, that the law is always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow. 1 [2.05]

INTRODUCTION .......................................................................................................................... 79

[2.10] [2.10] [2.15] [2.25] [2.30]

THE STRUCTURE AND FUNCTION OF GENERAL PRINCIPLES ........................................................ The Concept of General Principles ............................................................................................... Codification and the General Part: The Criminal Law’s Constitution ............................................. The Promise of Codification: Overstated and Still Unrealised? ...................................................... The Abstraction of Principles: An Elusive or Illusory Search? ..........................................................

[2.40] [2.40] [2.45] [2.80] [2.200] [2.240] [2.255]

PRINCIPLES OF CRIMINAL PROCESS ............................................................................................ 95 The Relationship Between Criminal Law and Procedure ................................................................ 95 The Principle of Territoriality ......................................................................................................... 96 The Principle of Fairness ............................................................................................................. 107 The Principle of Equality Before the Law ..................................................................................... 152 The Principle of Privacy .............................................................................................................. 170 CONCLUSION: THE FUTURE OF GENERAL PRINCIPLES .............................................................. 174

80 80 82 84 90

INTRODUCTION [2.05] This chapter explores the place of “general principles” in the criminal law. The concept

of general principles embodies fundamental ideas about how the criminal process and substantive law operates, or rather should operate. General principles encompass both procedural and substantive matters. They also perform explanatory and normative functions. This distinction has been explained in Chapter 1, [1.15]. Chapter 2 offers critical perspectives on the structure and function of general principles through an examination of the principles of territoriality, fairness, equality and privacy. It focuses primarily on principles governing the criminal process and punishment, rather than criminal responsibility which are separately considered in Chapter 3. The latter principles of responsibility determine the conditions under which conduct or individuals should ordinarily be held criminally liable. As we shall explore below, the idea of general principles universally applying across all offences, while normatively significant, is a highly contestable representation of the existing law. Although claimed to be 1

Oliver Wendell Holmes, The Common Law (Boston: Little, Brown and Co, 1881) p 36.

[2.05]

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the “General Part” of the criminal law, many of these principles are routinely subject to derogation or qualified with exceptions in the context of specific offences; for example, the presumption of a fault element is displaced for many crimes of strict liability, including serious drug and public order offences, as well as less serious regulatory offences. This chapter examines the process and reasoning behind the criminal law’s designation of certain principles as “fundamental” and “universal”. By exploring their historical, moral and political foundations, the chapter provides resources for a critical re-examination of their claims of centrality in the criminal law. The chapter is necessarily selective in its coverage. 2 It claims neither to be an authoritative nor exhaustive account of those principles that have shaped the criminal law over time. Returning to our introductory quotation by Oliver Wendell Holmes, it is important to recognise that the law is perpetually engaged in the process of identifying new principles, reforming existing ones and abolishing obsolete ones. In terms of “new” principles, for example, the right to human dignity, which finds expression in both domestic constitutional law in some jurisdictions, and underlies international human rights treaties, 3 is emerging as a normative resource for thinking about the proper boundaries of the criminal law in specific contexts, particularly in the context of terrorism offences, and how the law defines consent and fault for the purposes of sexual offences and assault, see Chapter 11, [11.10]. The chapter offers some observations on that process of doctrinal representation, laying the foundation for developing critical perspectives on the roles—symbolic as well as instrumental—of general principles within the criminal law.

THE STRUCTURE AND FUNCTION OF GENERAL PRINCIPLES The Concept of General Principles [2.10] General principles have been a major focus of modern criminal law scholarship. The

conceptual task of developing a framework for understanding the criminal law is regarded as fundamental, with practical as well as theoretical implications for the structure or form of criminal liability. A “principled approach” promises a high degree of conceptual unity for criminal law. Rather than focus on the doctrinal particularities of specific crimes, attention is redirected towards “the fundamentals”, that is, the core concepts and doctrines of the criminal law. Since the late 19th century textbook discussion has been structured around the “General Part”, focusing attention on those doctrines applicable to physical and fault elements, as well as general defences. In some cases, this discussion may be prefaced by a cursory survey of selected principles governing criminal procedure and punishment. General principles are said to be fundamental to the promotion of the “liberal” values of certainty, consistency and predictability in the criminal law, as explored previously in Chapter 1, [1.20], “Defining Crime and the Rule of Law”. As such, they are an essential precondition for the modernisation and codification of the criminal law. As American criminal law philosopher, Michael Moore, has argued: “The criminal law thus needs some structure if its codification is to be possible and if adjudication under such codes is to be non-arbitrary. More specifically, it needs some general doctrines—doctrines applying to all types of action prohibited by a criminal code—in order to avoid an ungodly repugnancy and a woeful incompleteness.” 4 2

3 4

See J Gans, T Henning, J Hunter and K Warner, Criminal Process and Human Rights (Sydney: Federation Press, 2011), which provides an excellent “rights-based analysis” of criminal procedure laws in Australia, drawing on international and comparative human rights law. See, generally, A Barak, Human Dignity: The Constitutional Value and the Constitutional Right (Cambridge: Cambridge University Press, 2015). M Moore, Act and Crime (Oxford: Oxford University Press, 1993) p 4.

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In jurisdictions that codify the criminal law, general principles are elevated to the status of positive law. However, reconciling these abstract general principles with the specific elements of individual crimes has caused interpretational difficulties, as we explore in the next section, “Codification and the General Part: The Criminal Law’s Constitution” at [2.15]–[2.20]. There are also inherent difficulties in determining whether a principle applies to a sufficiently wide range of offences to be characterised as belonging to the General Part. 5 General principles not only assist our understanding of the criminal law, they also perform an important normative function. By establishing normative parameters for legal development, these principles provide lawyers, judges and academics with the tools for determining the “proper” direction for the criminal law. Operating at a higher level of abstraction than rules, principles are highly flexible. By resorting to principles, judges and lawyers free themselves from the constraints of existing doctrine. Contradictory precedent can be rationalised and reconciled, while simultaneously preserving flexibility for the development of the criminal law in future cases. Principles generate legal rules, but they do not dictate their development unless they acquire constitutional force through entrenched bills of rights. As Andrew Ashworth has observed, principles operate as arguments based on political or moral foundations; though there may be countervailing considerations of principle or policy that outweigh them in specific contexts. 6 On this view tension is inevitable, because principles reflect a wide range of competing political and moral ideas about the legitimate scope and function of the criminal law. Sometimes principles are trumped for sound policy reasons. For example, the practical evidential difficulties of proving subjective mental states in relation to drug offences, combined with a strong political and legislative commitment to the “War Against Drugs”, has displaced the presumption of a fault element in relation to drug possession and trafficking offences. On other occasions, principles may be sacrificed to interests of political expediency, responding to the clamour of unruly local law and order politics. The widespread derogation from the normal principles of fault attribution and cherished procedural values, such as the burden of proof, is further discussed in Chapter 14, [14.120] and [14.135]. There is a strong relationship between theoretical ideas and general principles. Principles, like theories, can provide “blueprints” for the development of the criminal law. This process is facilitated by theorists casting their ideas (or rather ideals) as “principles”; see, for example, John Stuart Mill’s “harm principle”; Lord Devlin’s “protection of morals”; Nicola Lacey’s “principle of welfare”; and the “republican principles” of John Braithwaite and Philip Pettit reviewed in Chapter 1, [1.190], “Reconstructing the Criminal Law”. Theoretical and general principles may share normative concerns about the proper nature and scope of the criminal law, but they perform distinct functions. Theoretical principles address macro-level questions, such as the proper purpose and scope of the criminal law. As explained in Chapter 1, the harm principle has provided the conceptual framework for the liberalisation of homosexual offences and prostitution in the late 20th century: see [1.210]. General principles, by contrast, address micro-level questions, such as the forms and structure of the criminal process (how a trial should be conducted) and criminal responsibility (when a person should be found guilty). This macro-micro dichotomy should not be overstated. In calling for a more principled criminal 5

6

RA Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Oxford: Hart Publishing, 2007) p 3, resolves this issue by noting that the specific principle belongs to the General Part where “it is not essentially tied to any specific offence”. J Horder, Ashworth’s Principles of Criminal Law (8th ed, Oxford: Oxford University Press, 2016) pp 65ff. Ashworth’s textbook on English criminal law, through successive editions, is the paradigm example of the “principled” approach to legal analysis. Ashworth moved beyond doctrinal exegesis to develop deeper theoretical as well as policy-based critiques of the law. It was also the first textbook to take human rights law into account in shaping criminal law doctrine. [2.10]

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law, Andrew Ashworth has advocated a closer relationship between the decision to criminalise and the procedural context, particularly relating to law enforcement and sentencing. 7 Theoretical contributions are not restricted to providing “guiding principles” for legislative reform. As we shall reveal in the next chapter, the principles that govern criminal responsibility dealing with agency, fault and causation have been influenced (overtly and covertly) by a range of different philosophical perspectives. Indeed, philosophical disagreement over the attribution of fault has fuelled fierce doctrinal disagreement over whether a subjective or objective mental state is the “true” principle of fault in the criminal law: see discussion in Chapter 3, [3.230].

Codification and the General Part: The Criminal Law’s Constitution [2.15] The identification of a set of general principles for the criminal law formed part of a

modernisation project that commenced in the 19th century. Codification into a single Act of Parliament logically demands a “General Part” that deals with principles ordinarily applicable to every offence. The General Part of a Code operates, in effect, as a constitution for the criminal law, setting the parameters for judging all criminal conduct. In this sense, the General Part functions as a legal dictionary of key concepts and guiding principles that are addressed to the judicial officer and legislative drafter, rather than to the citizen at large. General principles, based on reason and logic, promise to curb the irrational and illogical tendencies of the common law. Since codification purports to place the responsibility for development of the criminal law with the legislature rather than the judiciary, it represents an important instantiation of liberal values. Codification is thus an expression of democratic legitimacy. Given that it is the state that has the responsibility to create and maintain the rules for the punishment of individuals, it is appropriate that only the elected arm of government (that is, Parliament) should be responsible for articulating those rules and the principles that will govern their application. Codification claims to remove from judges their quasi-legislative power to extend the criminal law by remodelling offences and defences, and minimises the risk of violation to the principle of non-retrospectivity discussed in Chapter 1. As one member of the team responsible for drafting Australia’s Model Criminal Code in the early 1990s noted, codification makes the criminal law “easy to discover, easy to understand, cheap to buy and democratically made and amended”. 8

Historical perspectives Codification and Bentham’s Pannomion [2.20] As the embodiment of Enlightenment thinking, legal codification sought to impose

the elegance of form, structure and rationality of European penal codes (such as the French Code Napoleon) upon the messy case-oriented substance of the common law. It became the life-long work of liberal reformers such as Jeremy Bentham and James Fitzjames Stephen in England, and Samuel Griffith in Australia. The modern criminal code 7

8

A Ashworth, “Is the Criminal Law a Lost Cause?” (2000) Law Quarterly Review 225 at 226. The principles identified by Ashworth as relevant to the criminal law include classical liberal ideas such as the principle of parsimony (which he terms “minimal criminalisation”), autonomy, as well as the principle of “no liability for omissions,” and “proportionality”. Ashworth also identifies countervailing welfare-based principles, such as the “principle of social responsibility” recognising that citizens have mutual obligations to each other. For an excellent essay reviewing the originality and impact of Ashworth’s principles over the past three decades, extending beyond the academic search for a “General Part”, see N Lacey, “Principles, Policies, and Politics of Criminal Law” in L Zedner and J Roberts (eds), Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth (Oxford: Oxford University Press, 2012). M Goode, “Codification of the Australian Criminal Law” (1992) 16 Criminal Law Journal 5 at 8.

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owes much to the writings of Bentham who is widely credited with inventing the term “codification”. 9 Towards the end of his long academic career, Bentham became obsessed with codification. In an open letter to the “several American United States” in 1817, he offered to draft them a “Pannomion”, or a set of Codes covering constitutional, civil and penal laws. This offer had been previously made to the Russian Tsar, the Spanish, Portuguese and Greek liberals, and the newly independent states of Argentina and Guatemala. 10 The Pannomion project, in common with his more famous ideal model prison called the “Panopticon”, shared the common objective of promoting conformity and compliance of the legal subject (whether citizen or prisoner) with rules. Rational legality favoured an approach in which offences and, hence, the legal power to punish must be prescribed in clear legal rules in advance, expressed in language and terms which these subjects could understand. It sought to replace the patchwork of common law (overlaid with statutory modifications) with a systematic and principled system of criminal law, combined with rational and proportionate punishments which aimed at deterrence. The resultant laws were applied rather than made by the courts, with minimal scope for discretionary judicial interpretation or resort to legal fictions. Notwithstanding Bentham’s influential writings, and various draft codes prepared by several English royal commissions appointed to consolidate and codify the criminal law in the 19th century, the codification project faltered. This led Professor Amos, one of the commissioners, to describe the British hostility to codification as a form of “codiphobia”. 11 By contrast, British colonies and territories were much more receptive to Bentham’s project. Codification was attractive to transplanted British societies, offering citizens a reasonably comprehensive and modernised statutory criminal law. Rather than rely on the vagaries of the inherited and hard-to-find common law precedent, the code provided colonial societies with a “ready-made” criminal law devised by some of the most distinguished jurists of the time. In Australia, the process of codification was relatively late in its development. Codes based on a draft produced by the Attorney-General of Queensland, Samuel Griffith, in 1897 were enacted in Queensland (1899). Other jurisdictions followed suit: Western Australia (1902, re-enacted 1913), Tasmania (1924)

9 10

11

P Schofield and J Harris (eds), Jeremy Bentham—Writings on Codification, Law and Education (Oxford: Clarendon Press, 1998). M Kayman, “A Memorial for Jeremy Bentham: Memory, Fiction, and Writing the Law” (2004) Law and Critique 207 at 207–208. For an essay, drawing on Bentham and Foucault, exploring how modern penal codes have substantially failed to link themselves to the primary function of addressing the legitimacy of the exercise of the power of the state over its subjects, see M Dubber, “Penal Panopticon: The Idea of a Modern Model Penal Code” (2001) 4 Buffalo Criminal Law Review 53. A Hemming, “When Is a Code a Code?” (2010) 15(1) Deakin Law Review 65 at 67, fn 9. Horder has however noted that England did adopt a “fledgling criminal code”, albeit in the form of a series of consolidation statutes in 1861, dealing with inter alia offences against the person and larceny: J Horder, Ashworth’s Principles of Criminal Law (8th ed, Oxford: Oxford University Press, 2016) p 32. Subsequent efforts in the 1870s to pass a criminal code failed, due largely to the suspicion that judges and the profession held towards the generalisation inherent within a code, and the extent to which codification would stultify the development of the common law: A Braun, “The English Codification Debate and Role of Jurists in the Development of Legal Doctrines” in M Lobban and J Moses (eds), The Impact of Ideas on Legal Development (Cambridge: Cambridge University Press, 2012) pp 214ff. [2.20]

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and the Northern Territory (1983). 12 Griffith envisaged that the code should be a collected and explicit statement of the criminal law in a form that could be ascertained by an intelligent person. 13 His code is generally considered to be one of the most faithful and successful attempts to implement a Benthamite model for the codification of law, and the “Griffith Code”, as it has become known, was adopted—with only minor revisions—in many other British colonies. 14 Even today, as Jeremy Horder observed, part of the driving intellectual force behind the codification movement “has been the wish to snuff out once and for all the flickering flame of judicial creativity in the field of criminal law.” 15 This movement also seeks to place law reform, somewhat unrealistically, in a technocratic realm beyond politics. 16 The difficulty with the approach to reform is discussed in relation to serious drug offences in Chapter 14, [14.05]. In England, codification remains elusive. Even today, the criminal law is a hotchpotch of common law and statutory consolidations, with little progress being made in implementing the Draft Criminal Code produced by the Law Commission of England and Wales in 1989. Indeed, in 2008 the Law Commission decided to remove mention of its criminal law codification project from its latest Programme of Law Reform, replacing it with a new project of “simplification” of criminal law offences. It intends to revisit codification after this simplification project is complete, though it has left the time frame for this return open-ended. 17

The Promise of Codification: Overstated and Still Unrealised? [2.25] The liberal promise of codification can be overstated. As noted above, codification

aims to democratise criminal law through giving control of the development of criminal law to an elected legislature rather than an unelected judiciary. The first provision of the code typically abolishes “crimes at common law” – offences are to be found only in the code or other statutory provision. In practice, however, modern criminal law-making is controlled by the Executive, which develops public policy, and then drafts and proposes new criminal laws for presentation to the Legislature. The idea that criminalisation under a codified system should be principled, governed and constrained by the code’s general principles, is reflected in

12

13

14

15 16 17

See Criminal Code Act 1899 (Qld); Criminal Code Compilation Act 1913 (WA); Criminal Code Act 1924 (Tas); Criminal Code Act 1983 (NT), respectively. The Griffith Code was also adopted in a number of British colonies and dependencies such as Papua (1902) and New Guinea (1921). On the migration of the Code, see R O’Regan, New Essays on the Australian Criminal Codes (Sydney: Law Book Company, 1988) pp 103–120. Sir Samuel Griffith, “Explanatory Letter to the Attorney-General Queensland with Draft Code” in K Whitney, M Flynn, P Moyle, The Criminal Codes (5th ed, Sydney: LBC, 2000) p 5. See, generally, G MacKenzie, “An Enduring Influence: Sir Samuel Griffith and his Contribution to Criminal Justice in Queensland” [2002] Queensland University of Technology Law and Justice Journal 3. See S Bronitt and M Gani, “Criminal Codes in the 21st Century” in B McSherry, A Norrie and S Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Oxford: Hart Publishing, 2009) p 243 fn 41. J Horder, “Criminal Law” in P Cane and M Tushnet (eds), Oxford Handbook of Legal Studies (Oxford: Oxford University Press, 2003) p 227. J Horder, “Criminal Law” in P Cane and M Tushnet (eds), Oxford Handbook of Legal Studies (Oxford: Oxford University Press, 2003) p 229. Law Commission (England and Wales), Simplification of the Criminal Law, http://www.lawcom.gov.uk/ project/simplification-of-the-criminal-law (cited 14 January 2017).

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government drafting guides. 18 However, developing a “principled” criminal law becomes more challenging when the Executive and Legislature is faced by the political clamour to take tough measures against emerging serious crime threats. Requiring proof of intent for example may be “principled” but will, practically speaking, present considerable challenges for investigators and prosecutors. As we examine in Chapter 15, [15.150], the drug and terrorism offences in the Criminal Code (Cth) did little to stem the wide use of reverse onus clauses, no-fault liability provisions and resort to extra-territorial jurisdiction. 19 The differences between codified and uncodified jurisdictions may be overstated. Under any system of law, whether codified or not, gaps and uncertainties remain. As distinguished comparative lawyer Samuel Stoljar observed, poorly drafted codes may produce considerable uncertainty, while the concept of “leading cases” (and the academic commentary they generate) can promote clarity, coherence and guiding principles far beyond the particular dispute at hand. 20 The legal assertion of the code’s primacy over the common law may be viewed simply as an application of the doctrine of parliamentary sovereignty: the most significant provision of a criminal code, distinguishing it from a consolidation statute, as discussed below, states that all offences are to be found in either the code or legislation, rather than common law. But this does not diminish the role or significance of precedent under a code. Since code provisions are not self-executing, precedent develops to guide interpretation; the fundamental status of precedent has neither been altered nor diminished in code jurisdictions. In terms of legal culture, the centrality of precedent in code jurisdictions is apparent from the retention of “casebooks” for explaining the criminal law. 21 Conversely, in those jurisdictions that have resisted comprehensive codification—namely New South Wales, South Australia and Victoria—it would be wrong to assume that criminal law is sourced exclusively from the common law. Even in so-called “common law jurisdictions”, the bulk of offences and defences are found in consolidating legislation or other statutes. What remains significant by comparison with the code jurisdictions is that the common law survives as a reservoir of residual offences and doctrines available for revival by prosecutors and judges as needed. Codification has nevertheless produced two distinct but related cultures of criminal jurisprudence in Australia. 22 The primary difference between code and non-code states relates to the approach to statutory interpretation. As a special type of legislation, codes are governed by their own distinct principles of interpretation, which Kirby J in Charlie v The Queen summarised as follows: “The first loyalty, as it has been often put, is to the code. Where there is ambiguity, and especially in matters of basic principle, the construction which achieves consistency in the interpretation of like language in similar codes of other Australian jurisdictions will ordinarily be favoured. But before deciding that there is ambiguity, the code in question must be read as a whole. The operation of a contested provision of a code, or any other legislation, cannot be elucidated by confining attention to 18 19

20 21 22

Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (Canberra: Commonwealth Attorney-General’s Department, 2011). S Bronitt and M Gani, “Criminal Codes in the 21st Century” in B McSherry, A Norrie and S Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Oxford: Hart Publishing, 2009) pp 247–254. See S Stoljar, “Codification and the Common Law” in S Stoljar (ed), Problems of Codification (Canberra: ANU Press, 1977). See, for example, E Colvin, J McKechnie and J O’Leary, Criminal Law in Queensland and Western Australia: Cases and Commentary (7th ed, Sydney: LexisNexis Butterworths, 2015). S Tarrant, “Building Bridges in Australian Criminal Law: Codification and the Common Law” (2013) 39 Monash University Law Review 838. [2.25]

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that provision. It must be presumed that the objective of the legislature was to give an integrated operation to all of the provisions of the code taken as a whole, and an effective operation to provisions of apparently general application, except to the extent that they are expressly confined or necessarily excluded.” 23

There is a countervailing view that a “special” approach to the interpretation of the “Griffith Code” sustains unhelpful, artificial and parochial divisions in the criminal law of Australia. As Stella Tarrant argues, codes should be approached as ordinary legislative enactments governed by the principles of interpretation found in the applicable Acts Interpretation legislation and the common law: “A proper approach to the legal interpretation of codes is that they are statutes, pure and simple; there are no general rules of interpretation that apply peculiarly to a ‘code’ as a reified notion of a special form of law”. 24 Australian judges have struggled reconciling the Code’s “General Part” with specific offences that follow. Doubts have arisen as to whether or not general provisions dealing with criminal responsibility in fact displace or qualify the terms of specific offences. For example, Dixon CJ in Vallance v The Queen, expressed doubts about the practical value of the general part of codes, describing them as: “wide abstract statements of principle about criminal responsibility framed rather to satisfy the analytical conscience of an Austinian jurist than to tell a judge at a criminal trial what he [or she] ought to do.” 25

In other words, the meaning of “general provisions” in codes could not be determined in the abstract. Rather, as Dixon CJ noted, “it is only by specific solutions of particular difficulties raised by the precise facts of given cases that the operation of [provisions of general application] can be worked out judicially”. 26 General principles, on closer scrutiny, are often subordinated to the definitional constraints of specific offence provisions in the code, rather than vice versa. As Jeremy Horder noted, the attempt to hive off the “General Part” has little theoretical or practical value and “inevitably ends up presenting an impoverished picture of the ‘special part’, in which the latter’s moral richness and diversity have been airbrushed out”. 27 Even when expressed in a code, the idea of “fundamental” and “universal” principles guiding the interpretation and application of all offences is rhetorical and illusory. Notwithstanding the view above that codes are governed by “special” rules of interpretation, it would be inaccurate to characterise the differences as a form of legal apartheid. In many areas, especially those relating to key principles and definitions, the High

23

24 25 26

27

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(1999) 199 CLR 387 at 394 (footnotes omitted). These principles are derived from dicta in R v Barlow (1997) 188 CLR 1 at 31–33; Boughey v The Queen (1986) 161 CLR 10 at 30; and R v Jervis [1993] 1 Qd R 643 at 647 and 670–671. See also Murray v The Queen (2002) 211 CLR 193 and Kirby J in DPP (NT) v WJI (2004) 219 CLR 43 at [71]. S Tarrant, “Building Bridges in Australian Criminal Law: Codification and the Common Law” (2013) 39 Monash University Law Review 838 at 861. Vallance v The Queen (1961) 108 CLR 56 at 61. Vallance v The Queen (1961) 108 CLR 56 at 61 per Dixon CJ. In Charlie v The Queen (1999) 199 CLR 387, the majority of the High Court (Kirby and Hayne JJ dissenting) held that General Part provisions in the Criminal Code (NT) dealing with mental states were excluded by the definition of “intent” specifically included in the offence of murder. Kirby J concluded (at 396) that the General Part was an “overarching provision … a core principle of general application, a core tenet of our criminal law. It is not one which would ordinarily be confined or narrowed”. J Horder, “Criminal Law” in P Cane and M Tushnet (eds), Oxford Handbook of Legal Studies (Oxford: Oxford University Press, 2003) p 241. [2.25]

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Court has promoted convergence between the codes and the common law where possible. 28 The promotion of convergence is undoubtedly aided by the fact that there is only one common law in Australia. In a number of decisions, the High Court has held that common law should be viewed as a “unitary” system; that is, there is a “common law of Australia”, as distinct from nine separate systems of federal, State and Territory common law. As McHugh J observed in Kable v DPP (NSW): “Unlike the United States of America where there is a common law of each State, Australia has a unified common law which applies in each State but is not itself the creation of any State.” 29

The importance of developing a consistent and unitary concept of Australian common law in relation to the test of criminal jurisdiction has been stressed by the High Court in Lipohar v The Queen. 30 This decision is explored at [2.70]. The centralising and conditioning influence of the “unitary” common law of Australia upon the criminal codes is, however, far from absolute, and will be constrained by the language of the provision under consideration, and the degree of ambiguity in the particular case. Also, it can take many years for general common law concepts and definitions to seep into code jurisprudence. In the absence of an explicit interpretive duty on judges within code states to develop the code in conformity with the common law of Australia, uptake of High Court pronouncements from non-code jurisdictions may be slow or even resisted. A recent example of the latter is the Queensland Court of Appeal decision of R v Dillon; Ex parte Attorney-General (Qld), 31 a case examining the meaning of “dishonesty” for the offence of fraud under the Criminal Code (Qld). Dishonesty in the context of property offences is discussed in Chapter 12, [12.45]. The High Court had comprehensively addressed the meaning of “dishonesty” 17 years earlier in Peters v The Queen 32 in the context of the offence of conspiracy to defraud under ss 86(1)(e) and 86A of the Crimes Act 1914 (Cth). Notwithstanding the High Court favouring an objective test of dishonesty, rejecting the mixed objective/subjective test favoured by English courts in Ghosh, 33 Queensland courts continued to direct juries in accordance with the Ghosh test for offences requiring proof of dishonesty. McMurdo P, delivering the leading judgment in Dillon, accepted that despite a long history of applying the Ghosh test, Queensland courts must approach dishonesty in a manner consistent with the High Court’s ruling in Peters. The long delay of 17 years between the dishonesty test in Peters, and its ultimate acceptance in Queensland, underscores Justice Kirby’s assessment that judicial loyalty lies, first and foremost, to the code, rather than the common law! 34 Recent proposals for codification have been part of a broader project promoting harmonisation of criminal laws in Australia. However, consensus on the scope and content of general principles and specific offences has proven difficult to achieve. From a political perspective, the adoption of a uniform criminal code would require cooperation between the Commonwealth, States and Territories. Until recently, the Commonwealth has played only a limited role in the field of criminal law, as its power to legislate is circumscribed by the heads of power in the Commonwealth Constitution. Since the enactment of a national criminal code would lack a solid legal basis under the Constitution, harmonisation of federal, State and 28 29 30 31 32 33 34

An example of this is the High Court’s treatment of the partial defence of provocation in Stingel v The Queen (1990) 171 CLR 312, which is further discussed in Chapter 5, [5.10]. Kable v DPP (NSW) (1996) 189 CLR 51 at 112. (1999) 200 CLR 485. [2015] QCA 155 (25 August 2015). (1998) 192 CLR 493. R v Ghosh [1982] QB 1053. Charlie v The Queen (1999) 199 CLR 387 at 394. [2.25]

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Territory criminal laws has been viewed as the next best alternative. Harmonisation involves each jurisdiction enacting the same (or substantially similar) criminal laws. In 1990, the Standing Committee of Attorneys-General (SCAG) placed on its agenda the question of the development of a uniform criminal code for Australian jurisdictions. Before 1990, the pattern of harmonisation in the criminal law was ad hoc. For example, as we shall explore in Chapter 13, partial uniformity in relation to property offences was achieved in the Australian Capital Territory, Northern Territory and Victoria by the adoption of statutory provisions modelled on the Theft Act 1968 (UK), creating, in effect, “mini-codes” in some areas. SCAG established the Model Criminal Code Officers Committee (MCCOC), as it was then known (since renamed the Model Criminal Law Officers Committee (MCLOC)) to draft a criminal code for the Commonwealth, which would provide the model for codes adopted in the States and Territories. As one of the drafters, Mathew Goode, pointed out, the original aims of the Model Criminal Code were codification and uniformity. 35 Elsewhere, Matthew Goode has also suggested that the Model Criminal Code, more realistically, is an exercise in promoting “voluntary consistency not compulsory uniformity”. 36 As Miriam Gani concluded: “The jury is still out as to the ultimate impact of the codification project. What can be said, though, is that consistent, uniformly applicable criminal law through codification in Australia has not been achieved.” 37

More than any other jurisdiction, the development of federal criminal law has been shaped by the Model Criminal Code project, discussed at [2.15]. As Miriam Gani notes, the federal jurisdiction has been the “most enthusiastic adopter of the Model Criminal Code”. Schedule 1 of the Criminal Code Act 1995 (Cth) enacted the Criminal Code, which contained the following chapters: Chapter 1: Chapter 2: Chapter 3: Chapter 4: Chapter 5: Chapter 6: Chapter 7: Chapter 8: Chapter 9: Chapter 10:

35 36 37

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Codification (a one-section chapter, which abolishes common law offences in the federal jurisdiction) General principles of criminal responsibility [empty] The integrity and security of the international community and foreign governments (eg, protected persons offences, people smuggling) The security of the Commonwealth (eg, treason, espionage and terrorism). [empty] The proper administration of government (eg, bribery, forgery, impersonation of public officials and theft and property offences) Offences against humanity and related offences (eg, genocide, war crimes and crimes against humanity) Dangers to the community (eg, cross-border firearms trafficking) National infrastructure (eg, money laundering, postal and telecommunications offences and cybercrime)

M Goode, “Codification of the Australian Criminal Law” (1992) 16 Criminal Law Journal 5 at 7. M Goode, “Constructing Criminal Law Reform and the Model Criminal Code” (2002) 26 Criminal Law Journal 152 at 163. M Gani, “Codifying The Criminal Law: Issues of Interpretation” in S Corcoran and S Bottomley (eds), Interpreting Statutes: Essays on Statutory Interpretation (Sydney: Federation Press, 2005) p 222. [2.25]

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The federal Criminal Code is not, however, a mimetic of the Model Criminal Code – Chapters 3 and 6, for example, remain empty. 38 Procuring political agreement at the national level on the need to adopt consistent criminal laws has been the major stumbling block for codification, and implementation has been piecemeal. 39 Queensland has largely ignored the Model Criminal Code, engaging in independent reviews and amendments of its code. In other jurisdictions, a selective approach to codification has prevailed, with specific areas subject to reform in light of the proposals in the Model Criminal Code. Under this ad hoc approach, the relationship between the reforms based on the Model Criminal Code and the existing common law has not been consistent, even within the same jurisdiction. For example, in New South Wales, reforms to the law governing intoxication expressly abolished the existing common law: see Crimes Act 1900 (NSW), s 428H. By contrast, no equivalent clarifying provision was included in relation to the “codification” of the rules relating to self-defence. According to Miriam Gani, this inconsistency undermines many of the core values behind codification, such as promoting certainty and consistency. 40 She continues, warning that the failure to clarify in legislative form the key interpretive principles governing codes, particularly the status of pre-existing common law, has the potential to undermine the whole project: “It is a legal paradox to codify the criminal law—to take a legislative-centric approach to it—without also legislating for how that code is to be interpreted”. 41 It also leaves the courts with the responsibility for developing these principles, further undermining codification’s democratic aspiration to place development of the criminal law in the hands of the legislature rather than the courts. Moreover, even if we accept Matthew Goode’s revisionism that codification is about broad consistency and not uniformity, Miriam Gani concludes that the “halfway house of partial consistency is counterproductive to the hopes and aims of the codification project”. 42 In those few areas where consistency has been substantially achieved, such as cybercrime, the political drivers for reform are not related to the objectives behind the Model Criminal Code project, but rather to the need to modernise and mobilise the criminal law to fight the threat of transnational crime and terrorism in the wake of the 2001 September 11 attacks (9/11). The political opportunism surrounding such law reform is explored further in Chapter 15, [15.20]. From the outset, the MCCOC gave priority to the codification of principles of criminal responsibility over preliminary procedural issues “as these [principles of criminal responsibility] were the very foundation of any system of criminal justice”. 43 The recommendations contained in this report have been enacted in the Criminal Code Act 1995 (Cth), Criminal Code (ACT) and Criminal Code (NT). Chapter 1 of the federal Code abolishes common law crimes, stating that the only offences against laws of the Commonwealth are 38

39 40 41 42 43

For excellent commentaries on the federal Code, see I Leader-Elliott, The Commonwealth Criminal Code: A Guide for Practitioners (Canberra: Australian Institute of Judicial Administration, 2002) and S Odgers, Principles of Federal Criminal Law (3rd ed, Sydney: Lawbook Co, 2015). See M Goode, “Constructing Criminal Law Reform and the Model Criminal Code” (2002) 26 Criminal Law Journal 153 at 165–166 which contains a useful table of implementation of the MCCOC’s reports. M Gani, “Codifying The Criminal Law: Issues of Interpretation” in S Corcoran and S Bottomley (eds), Interpreting Statutes (Sydney: Federation Press, 2005). M Gani, “Codifying The Criminal Law: Issues of Interpretation” in S Corcoran and S Bottomley (eds), Interpreting Statutes (Sydney: Federation Press, 2005) p 222. M Gani, “Codifying The Criminal Law: Issues of Interpretation” in S Corcoran and S Bottomley (eds), Interpreting Statutes (Sydney: Federation Press, 2005) p 222. Model Criminal Code Officers Committee, Model Criminal Code: Chapter 2—General Principles of Criminal Responsibility (1992) p ii. [2.25]

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those offences created by, or under the authority of, the code or any other Act. Chapter 2 of this Code deals with “General Principles of Criminal Responsibility”. Section 2.1 states: The purpose of this Chapter is to codify the general principles of criminal responsibility under laws of the Commonwealth. It contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created.

Section 5 of the Criminal Code (ACT) states that the only offences in the Australian Capital Territory will be statutory offences, with the result that the Crimes Act 1900 (ACT) operates in tandem with the gradually expanding Code. The principles of criminal responsibility are examined below, and other proposals relating to specific offences will be explored in subsequent chapters.

The Abstraction of Principles: An Elusive or Illusory Search? [2.30] Principles are claimed to provide a means for promoting coherence and rationality in

the criminal law. Even scholars who structure their accounts in terms of principles are prepared to concede the existence of widespread disagreement and incoherence in the criminal law. As noted above, the power of principles to promote coherence in the criminal law is limited in a number of ways—principles possess rivals that inevitably clash, and even those principles deemed to be “fundamental” may be outweighed for countervailing policy considerations. Though significant, these qualifications and limitations on the explanatory and normative power of principles rarely justify the re-evaluation of claims that some principles have attained a fundamental and universal status in the criminal law. Some degree of disjunction between principles and the actual law would seem inevitable. Since general principles embody normative ideals—a state of legal perfection—it is hardly surprising that imperfect human judges and law-makers fall into error. When structured in terms of principles, academic discussion of the criminal law flits between explanatory and normative accounts, serving a significant ideological function by smoothing over doctrinal rifts and contradictions in the criminal law. 44 Critical scholars have expressed profound scepticism with the quest for identifying general principles in the criminal law. Nicola Lacey has described the rationalising enterprise of orthodox criminal scholarship as involving: “eliciting, articulating, and, where necessary, prescribing the proper principles informing criminal law, ironing out and rationalising apparent contradictions and exceptions, and paving the way for a clear, consistent and coherent theory and practice of criminal law on the basis of a loosely speaking liberal set of principles.” 45

She concludes that in many areas of the criminal law—such as the meaning of “intention”—the search for universal principles is not only elusive, it is illusory. The conflicts and contradictions that exist within doctrine, the apparent multiple meanings of fundamental concepts, are

44 45

See A Ashworth and J Horder, Principles of Criminal Law (7th ed, Oxford: Oxford University Press, 2013) pp 44–45. N Lacey, “A Clear Concept of Intention: Elusive or Illusory?” (1993) 56 Modern Law Review 621 at 637. See, generally, C Wells and O Quick, Lacey, Wells and Quick—Reconstructing Criminal Law: Texts and Materials (4th ed, Cambridge: Cambridge University Press, 2010) Ch 1; D Brown, D Farrier, S Egger, L McNamara, M Grewcock and D Spears, Brown, Farrier, Neal and Weisbrot’s Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (5th ed, Sydney: Federation Press, 2011) pp 3–4.

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“symptomatic of deeper substantive political questions that cannot be submerged by doctrinal rationalisation or by formal conceptual analysis”. 46 Critical scholarship has also rendered transparent the fact that many of the organising principles of the criminal law are sourced, directly or indirectly, from liberal philosophy. With the rise of legal positivism in the 19th century, law was conceptualised as a system of positive legal rules. This liberal project demanded the separation of legality from morality; the authority of modern law no longer required moral underwriting from God or natural law ideas. Legitimacy within this framework is primarily addressed by constraining arbitrary power through the strict observance of legal rules and procedures: see Chapter 1, [1.25]. Principles and rules could be justified largely in terms of their own logic and rationality; in this sense, the authority of the modern criminal law is said to be self-referential. 47 In the latter half of the 20th century and early 21st century, legal logic and rationality has been bolstered by arguments from moral and political philosophy, with the tenets of liberalism providing the principal “external” perspective for explaining, justifying and reconstructing the criminal law. There is now a significant body of “analytical criminal jurisprudence” that strives to synthesise from existing legal doctrine the fundamental and universal principles of criminal law. The primary philosophical focus of this body of scholarship are “the principles of criminal responsibility” which govern the identification of the legitimate conditions for attributing blame for wrongful conduct. Monograph after monograph examines fundamental concepts such as intention, free will, agency, causation, attempt, complicity and so on. 48 Moral blameworthiness provides the template for legal guilt at the expense of other external explanatory and normative perspectives, such as criminology, sociology, psychology, ethics or human rights. This concept of criminal law is exclusive rather than inclusive, removing from view broader issues and questions relating to morality and politics. Questions about the purpose and limits of punishment—for example, whether the criminal law and punishment should be legitimately used—are distinguished from questions about the conditions of individual responsibility. Questions of individual justice are divorced from broader questions of criminal justice, 46

47

48

N Lacey, “A Clear Concept of Intention: Elusive or Illusory?” (1993) 56 Modern Law Review 621 at 637. Note that Lacey’s critique of intention was explored by Jeremy Horder, “Intention in the Criminal Law— A Rejoinder” (1995) 58 Modern Law Review 678. Horder proposed that the multiple meanings of “intention” reflect the multiple roles performed by the concept, such as the liberal values of protecting autonomy, and representative labelling. From this perspective, the present guidance on intention in murder constitutes a legitimate compromise, permitting juries, within defined legal parameters, to engage in moral evaluation in the labelling process of distinguishing murder from manslaughter. See further N Lacey, “In(de)terminable Intentions” (1995) 58 Modern Law Review 692. The authority for principles and rules is drawn from an “ordinary” or “common sense” understanding of concepts, an approach that Lacey calls “stipulative analysis” in “A Clear Concept of Intention: Elusive or Illusory?” (1993) 56 Modern Law Review 621 at 624. See, for example, HLA Hart, Punishment and Responsibility (Oxford: Oxford University Press, 1968); RA Duff, Intention, Agency and Criminal Liability (Oxford: Blackwell, 1990); RA Duff, Criminal Attempts (Oxford: Oxford University Press, 1996); RA Duff (ed), Philosophy and the Criminal Law: Principle and Critique (Cambridge: Cambridge University Press, 1998); M Moore, Placing Blame: A General Theory of the Criminal Law (Oxford: Oxford University Press, 1997); S Shute, J Gardner and J Horder (eds), Action and Value in Criminal Law (Oxford: Oxford University Press, 1993); AP Simester and ATH Smith (eds), Harm and Culpability (Oxford: Oxford University Press, 1996); RA Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Oxford: Hart Publishing, 2007); L Alexander and K Kessler Ferzan with S Morse, Crime and Culpability—A Theory of Criminal Law (Cambridge: Cambridge University Press, 2009); J Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law (Oxford: Oxford University Press, 2007); AP Simester and A von Hirsch, Crimes, Harms, and Wrongs: On the Principles of Criminalisation (Oxford: Hart Publishing, 2011). [2.30]

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thereby suppressing the sociological and normative significance of the key institutions involved in the administration of the criminal law such as police, prosecutors and juries. 49

George Fletcher’s “Ten Commandments” of the criminal law [2.35] Distinguished US criminal law theorist, George Fletcher, argues in The Grammar of Criminal Law 50 that there are ten propositions or claims that read as the secular “Ten Commandments” of criminal law doctrine applicable to legal cultures around the world: 1.

Every criminal offence presupposes a voluntary human act.

2.

Every criminal offence includes a dimension of wrongdoing.

3.

Claims of justification negate wrongdoing.

4.

Every punishable act presupposes blameworthy commission of the elements of the offence.

5.

Blameworthy commission requires at least negligent conduct with respect to every element of the offence.

6.

Intentional, knowing, and reckless actions are worse than negligent conduct with respect to each element of the offence.

7.

Excused conduct is not blameworthy.

8.

Reasonable mistakes are not blameworthy.

9.

Self-defence is available only against unjustified attacks.

10.

The prosecution must always prove guilt beyond reasonable doubt. 51

Fletcher claims that these propositions are ones that most “practitioners of criminal theory around the world would, in varying degrees, hold to be true and binding”. 52 However, the consensus attributed by Fletcher to these ten propositions is more fragile and contested than he proposes—his proposal amounts to a universalist conception of criminal law that excludes the distinctiveness of micro-legal cultures that have created different solutions to problems of “punishment, human action and guilt” arising from criminal law, based on their particular historical, social and political contexts. 53

The narrow focus of this “philosophy of the criminal law” sustains a strict division between criminal law, criminal justice and criminology. As outlined in Chapter 1 [1.185], the criminal law may be more meaningfully understood as part of a broader framework bridging these divisions, an approach that Lacey calls “criminalization”. 54 The increasing scepticism over treating moral and political philosophy as the conceptual framework for the criminal law has encouraged scholars to search more widely for explanatory and normative insights. Modern 49 50 51 52 53

54

N Lacey, “Introduction—Making Sense of Criminal Justice” in N Lacey, A Reader on Criminal Justice (Oxford: Oxford University Press, 1994) p 3. (New York: Oxford University Press, 2007). G Fletcher, The Grammar of Criminal Law (New York: Oxford University Press, 2007) pp 95–96. G Fletcher, The Grammar of Criminal Law (New York: Oxford University Press, 2007) p 96. For a critique of Fletcher’s claims of universalism and plea for greater attention to legal pluralism, see S Bronitt, “Toward a Universal Theory of Criminal Law: Rethinking the Comparative and International Project” (2008) 27(1) Criminal Justice Ethics 53 and M Dubber, “Comparative Criminal Law”, in M Reimann and R Zimmermann (eds), Oxford Handbook of Comparative Law (Oxford, UK: Oxford University Press, 2006) pp 1305–1306. N Lacey and L Zedner, “Legal Constructions of Crime” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (5th ed, Oxford: Oxford University Press, 2012).

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criminal scholarship draws increasingly from feminism, psychology, history, sociology, regulatory theory, literary theory, human rights, economics, and so on. As Peter Alldridge suggested, the range of perspectives on the criminal law should have “no exclusions”. 55 Clearly, this grip of liberal philosophy on the criminal law is not inevitable. Indeed, Lacey has called for an alternate “social theory” for the criminal law, one that is grounded in sociology and criminology rather than analytical jurisprudence. 56 Theoretical pluralism need not be a descent into eclecticism. While rejecting the idea of grand theory or theoretical monopoly, it is important to realise that some perspectives have greater explanatory power than others in certain contexts. While feminist theory assists us to reconceptualise notions of “sexual harm”, psychology offers explanatory and normative resources for reshaping fundamental concepts of criminal responsibility. Economic and regulatory theory may offer useful perspective on how best to deal with corporate crime, Chapter 3, [3.30]. As we shall explore in Chapter 14, economic, sociological and medical perspectives may shed light on the nature of drug markets and the potential counterproductive impact of criminalisation of “pleasurable commodities”. Viewing criminal law as a “species of moral and political philosophy” as famously suggested by George Fletcher in Rethinking Criminal Law can also produce an acute form of historical myopia. 57 As noted in Chapter 1, conventional accounts of the criminal law tend to be ahistorical, concealing the contingency and conflict surrounding the development of principles and doctrines. 58 Through processes of abstraction, general principles are represented as self-evident, eternal, moral and political truths about the criminal law. By contrast, historical perspectives on the development of legal concepts and specific forms of crime can expose the fragility of principles that claim universal and fundamental status. Rather than possessing transcendent qualities, the criminal law is contingent, reflecting the social, political and moral concerns about wrongful conduct and particular groups at certain times. Adopting this perspective on the general principles of responsibility, Alan Norrie concludes that concepts of agency and responsibility that emerged in the criminal law in the 19th century were modelled on a psychological and political concept of individualism that abstracted the “legal subject” (in this context, the accused) from his or her social and political context. 59 Conventional accounts of the criminal law often conceal or suppress the fact that the obsession with “general principles” has been primarily an academic rather than a judicial or legislative project. Paradoxically, modern legal scholarship tends to minimise or deny the significance of its own role in synthesising and creating general principles. The concept of “criminal law” as a unified corpus of general principles and doctrines, as distinct from the “law of crimes”, emerges only in the 19th century. 60 This reconceptualisation of criminal discourse may be traced to the first self-styled textbook on “criminal law” published in the 55 56 57 58

59 60

P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) pp 18–19. N Lacey, ““Philosophical Foundations of the Common Law”: Social Not Metaphysical” in J Horder (ed), Oxford Essays in Jurisprudence (Oxford: Oxford University Press, 2000) p 17. G Fletcher, Rethinking Criminal Law (Boston: Little, Brown and Co, 1978) p xix. “Analytic scholarship is anti-historical: it regards history as subversive because it exposes the rationalising enterprise”: MJ Horwitz, “The Historical Contingency of the Role of History” (1981) 90 Yale Law Journal 1057. A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) Ch 2. While some principles claim an ancient pedigree, such as the tautological maxim actus non facit reum nisi mens sit rea (an act does not make a person guilty of a crime unless that person’s mind be also guilty), their meaning and scope change significantly over time. During the 19th century, the principle moved from a normative moral understanding of fault (malice or evil) to a descriptive psychological understanding (intention, knowledge or recklessness): A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) especially Chs 3 and 4. [2.35]

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19th century by James Fitzjames Stephen, one of the most distinguished English judges and jurists of his time. This book, published in 1863, represented a significant transition in the order of representation of the criminal doctrine. As Shaun McVeigh and Peter Rush point out: “Stephen collapses the disparate traditions of the law of public wrongs and pleas of the Crown, that is the Institutists and the common lawyers. This sets in train the transition from the laws of crime to criminal law.” 61

Unlike previous criminal texts, Stephen distinguished “criminal law doctrine” from the rules of procedure and evidence, and subordinated specific crimes to general principles. This approach continues to represent the dominant model for thinking, rethinking and reforming the criminal law. 62 The search for general principles may be viewed as an academic enterprise, only recently attracting the attention of law reformers and the appellate courts. From a judicial perspective, general principles are ill-suited to the common law method. The judicial ability to articulate fundamental principles of universal application is hampered by the constraints of legal adjudication. Since adjudication is based on precedent, which naturally inclines to inductive reasoning, incrementalism and pragmatism, judges rarely identify the principles underlying their decisions. 63 As a consequence, a significant part of legal scholarship is devoted to the extrapolation and synthesis of the “hidden principles” of the criminal law. 64 Adopting a “principled” approach to the study of criminal law also dramatically narrows the scope of intellectual engagement. Crimes that derogate from general principles are “exceptional”, governed by their own special rules and doctrines. Though numerically significant, minor crimes of strict or absolute liability that do not require proof of a subjective fault element are viewed as unworthy of consideration. As Doreen McBarnet pointed out, this conception of the criminal law sustains an “ideology of triviality” around summary crimes and processes. 65 This ideology sustains academic invisibility around offences that deviate from general principles such as minor crimes of a regulatory nature, as well as more serious crimes such as drug dealing. The latter, far from being an exception, “is the single crime that most clearly drives the contemporary criminal justice system.” 66 As Lacey has concluded, critical perspectives provide a powerful antidote to the constraints of current legal constructions, requiring law students, teachers and practitioners to search “beyond the boundaries of criminal law and its doctrines to its social meanings, its enforcement practices, its ideological functions and so on.” 67 61

62

63

64 65 66 67

S McVeigh and P Rush, “Cutting Our Losses: Criminal Legal Doctrine” in P Rush, S McVeigh and A Young (eds), Criminal Legal Doctrine (Aldershot: Dartmouth, 1997) p 189. Note that liberal reformer Jeremy Bentham also played a significant role in creating a new conceptual framework for understanding criminal punishment and legislation: see A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) Ch 2. G Williams, Criminal Law—The General Part (2nd ed, London: Stevens and Sons, 1961). Discussion of legal doctrine is commonly organised around principles. This convention is not limited to academic texts, but is employed in leading practice texts which represent and reduce the law to neat propositional forms, such as C Dellitt, B Fisse and P Keyzer, The Laws of Australia (Sydney: Law Book Company, 1993–). An exception is the discussion of “general principles” in the context of drug offences in He Kaw Teh v The Queen (1985) 157 CLR 523. Brennan J divided his judgment into a statement of “The General Principles”, at 564ff, and then “Application of the General Principles to s 233B(b) and (c) [of the Criminal Code (Cth)]” at 582ff. See, for example, J Horder, “Two Histories and Four Hidden Principles of Mens Rea” (1997) 113 Law Quarterly Review 95. D McBarnet, Conviction: Law, the State and the Construction of Justice (London: Macmillan, 1981) Ch 7. P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) p 23. N Lacey, “A Clear Concept of Intention: Elusive or Illusory?” (1993) 56 Modern Law Review 621 at 639.

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Adopting critical perspectives on general principles does not deny their normative significance or standing within legal culture. General principles represent an ideal (or idealised) image of how the process and substance of the criminal law should operate. Conversely, advocating a more principled approach to the development of the criminal law does not necessarily lead to the denial of external critical perspectives or the historical and political contingency of criminalisation, a point made by Ashworth. 68 As well as offering guidance to scholars, lawyers, judges and lawmakers, these principles also strive to confer legitimacy—both moral and political—on the criminal law. Modern legal scholarship has been primarily concerned with demonstrating how the criminal law fails to live up to its principles, with many liberal scholars, including Ashworth, recognising that the prospect of achieving better conformity between principle and the existing criminal law “may be a lost cause”. 69 Critical scholars, on the other hand, do not regard this “gap” between rhetoric and reality as a remediable derogation, but rather as something which is constitutive of the law itself. By resorting to a higher level of abstraction, general principles minimise and conceal disagreement (which often reflects wider moral and political conflict in society) within legal doctrine. Moreover, the analysis and reconstruction of law in terms of general principles tends to inscribe liberal values as legal values. This performs a disciplinary function, defining the intellectual boundaries beyond which the criminal law (as well as its students, scholars, practitioners and judges) must not venture. Feminist and critical legal scholars have exposed the “commonsense” liberal assumptions behind many of these principles. While liberalism may dominate our legal understanding of what is “fundamental”, the range and scope of general principles are not immutable. As we shall explore below, in the context of the criminal law there is plenty of scope for reconstructing principles of justice, such as those relating to fairness, equality and privacy, in more radical and socially inclusive ways.

PRINCIPLES OF CRIMINAL PROCESS The Relationship Between Criminal Law and Procedure [2.40] Many criminal law courses and textbooks examine process issues in a cursory and

descriptive fashion. 70 There is little attempt to examine how legal rules and principles impinge, if at all, on law enforcement practices and trial procedures. Criminal procedure is typically marginal to criminal law, represented as having practical rather than academic significance. 71 Neither has the law governing criminal procedure been a priority for law reformers—25 years after the Model Criminal Code Officers Committee (MCCOC) began its work, the section of the Code that deals with principles of criminal procedure (Chapter 1) has not substantially progressed. The MCCOC took the view that the “general principles of criminal responsibility” were fundamental and therefore accorded a greater priority. 68 69 70

71

A Ashworth, “Is the Criminal Law a Lost Cause?” (2000) Law Quarterly Review 225 at 229. A Ashworth, “Is the Criminal Law a Lost Cause?” (2000) Law Quarterly Review 225 at 255. The segregation of criminal law from criminal justice is further entrenched by the emergence of “criminal justice” as a distinct field of legal study, supported by its own texts: eg M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, Melbourne: Oxford University Press, 2014); A Ashworth and M Redmayne, The Criminal Process (4th ed, Oxford: Oxford University Press, 2010). Textbooks on criminal procedure in Australia have tended to adopt a practical, jurisdictional rather than academic or national perspective, see, for example, R Fox and D Deltondo, Victorian Criminal Procedure: State and Federal law (14th ed, Sydney: Federation Press, 2015); C Corns and S Tudor, Criminal Investigation and Procedure: The Law in Victoria (Sydney: Lawbook Co, 2009); M Eburn and R Hayes, Criminal Law and Procedure in New South Wales (3rd ed, Chatsworth: LexisNexis Butterworths, 2009); cf F Feld, A Hemming and T Anthony, Criminal Procedure in Australia (Chatswood: LexisNexis Butterworths, 2015). [2.40]

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By contrast, critical scholarship has highlighted the significance of the criminal process. David Nelken has highlighted the irrelation between criminal process and the substantive law; namely, how legal rules are translated, sometimes distorted, by the criminal process. 72 Building on these critical perspectives, Lindsay Farmer proposes that the criminal law is best understood not in terms of “general principles of responsibility”, but rather through an examination of the impact of historical and procedural changes in specific areas. Farmer began his review of the criminal law of Scotland by exploring the growth of the “summary jurisdiction” in the 19th century and its role in transforming key concepts of criminal responsibility in the common law. 73 The relationship between process and substantive law in specific contexts is explored in subsequent chapters. In this chapter, we focus on four principles that have general application to the criminal law: territoriality, fairness, equality before the law and privacy.

The Principle of Territoriality All crime is local. The jurisdiction over the crime belongs to the country where the crime is committed, and, except over her own subjects, Her Majesty and the … Imperial Legislature have no power whatever. 74 [2.45] The idea that the criminal law is “territorial”—in the sense of being bound to a defined

geographic territory—is considered to be a “general thesis of the common law.” 75 This image of territoriality as the jurisdictional norm for the criminal law is reinforced by the presumption (albeit rebuttable) that offences do not have extra-territorial effect. 76 The principle of territoriality appears to be unproblematic; it is rarely addressed in standard criminal textbooks, being regarded as having greater practical, rather than academic, significance. 77 Far from being of marginal significance, jurisdiction is a fundamental concept that creates and defines the boundaries of the criminal law. As Lindsay Farmer notes: “The power of law is always a territorial question. The law draws physical boundaries in geographic space. The law orders the interior of this space into political and administrative units. Legal sovereignty means nothing without these physical aspects of space and organisation. The law is also always the law of the land.” 78 72 73 74 75 76

77

78

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D Nelken, “Criminal Law and Criminal Justice: Some Notes on their Irrelation” in I Dennis (ed), Criminal Law and Criminal Justice (London: Sweet and Maxwell, 1986). L Farmer, Criminal Law, Tradition, and Legal Order (Cambridge: Cambridge University Press, 1997). MacLeod v Attorney-General (NSW) [1891] AC 455 at 458–459 per Halsbury LC. Thompson v The Queen (1989) 169 CLR 1 at 33 per Deane J. The presumption that criminal offences do not have extra-territorial effect may be rebutted expressly or impliedly: Pearce v Florenca (1976) 135 CLR 507; Treacy v DPP [1971] AC 537 at 561 per Lord Diplock. See C Dellitt, B Fisse and P Keyzer, Chapter 5, “Territorial and Extraterritorial Jurisdiction” in 9 CRIMINAL LAW PRINCIPLES, 9.1 “The Criminal Laws”, The Laws of Australia (Sydney: Law Book Company, 1993–). See C Dellitt, B Fisse and P Keyzer, Chapter 5, “Territorial and Extraterritorial Jurisdiction” in 9 CRIMINAL LAW PRINCIPLES, 9.1 “The Criminal Laws”, The Laws of Australia (Sydney: Law Book Company, 1993–) paras 110–120, 150, 1180–1570; A Leaver, Investigating Crime: A Guide to the Power of Agencies Involved in the Investigation of Crime (Sydney: LBC Information Services, 1997) pp 33–50. By contrast, the principle of territoriality is rarely addressed by standard criminal texts: see B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990). Falling between criminal law and conflicts of law, criminal jurisdiction has become an area of discrete specialisation: see D Lanham, Cross-Border Criminal Law (Melbourne: FT Law & Tax Asia Pacific, 1997) Ch 1. L Farmer, “The Law of the Land: Criminal Jurisdiction 1747–1908” in P Rush, S McVeigh and A Young (eds), Criminal Legal Doctrine (Aldershot: Ashgate, 1997) Ch 3. See also Criminal Law, Tradition, and Legal Order (Cambridge: Cambridge University Press, 1997) Ch 3. [2.45]

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The idea of territoriality reinforces ideas of national sovereignty by promoting centralisation and uniformity, rather than localisation in the administration of criminal justice. 79 By aligning criminal jurisdiction with geographical and political space, territoriality displaces alternate grounds for claiming jurisdiction, such as the status of the parties or nature of the conduct: “With the privileging of the forum deliciti [the jurisdiction where the offence occurred] the law is moving away from the face to face control of individuals towards the control of actions with particular legal space. The legal subject is abstracted from particularities of place, time and biography.” 80

These views reflect the modern conception of criminal jurisdiction that emerged in the late 18th and 19th century. A closer historical review reveals that criminal jurisdiction has never been perfectly aligned with territorial borders. In many respects, the common law evolved a highly localised view of jurisdiction that limited trials to the locality in which the crime occurred. 81 But the jurisdiction of the common law was not bounded by national borders, extending “beyond the seas” to deal with universal crimes such as piracy, an offence which received renewed attention in recent years as a result of crimes committed by pirates operating in international waters off the Somalian coast, discussed further in Chapter 15, [15.15]. 82 In relation to status, Crown immunity was the most significant deviation from territoriality as the basis for jurisdiction; neither the courts nor Parliament had power over crimes committed by the Sovereign. 83 Until the 18th century in England, the offender’s status could be regularly invoked as a basis for denying criminal jurisdiction; many accused escaped trial by claiming the “benefit of clergy”. By invariably disingenuous claims of clerical ordination (thereby invoking ecclesiastical jurisdiction over the crime), educated accused were furnished with a means of defeating jurisdiction of the criminal courts on a technicality. Proof of clergy status was ritualised by an accused reciting a passage in Latin from the Book of Psalms, proverbially known as the “neck verse”, and then receiving a branding on their thumb to prevent them claiming the benefit more than once! 84 The scope of the benefit was progressively narrowed

79 80

81

82

83 84

P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) p 138. In Scots law, the power to punish under feudal customary law survived until its gradual displacement by the introduction of a centralised “summary” procedure in the 19th century. The army and church also reserved its own jurisdiction: L Farmer, “The Law of the Land: Criminal Jurisdiction 1747–1908” in P Rush, S McVeigh and A Young (eds), Criminal Legal Doctrine (Aldershot: Ashgate, 1997) pp 66–69. The importance of venue related to the need to ensure that the jury which was empanelled to hear the matter had “local knowledge” of the offender and offence: see discussion, A Leaver, Investigating Crime: A Guide to the Power of Agencies Involved in the Investigation of Crime (Sydney: LBC Information Services, 1997) p 37. Crimes committed on the high seas (such as piracy) eventually became a matter for Admiralty jurisdiction: D Lanham, Cross-Border Criminal Law (Melbourne: FT Law & Tax Asia Pacific, 1997) pp 2–3. The law governing crimes committed on the high seas, and the significance of “flag state” jurisdiction in the context of the modern cruising industry, is examined in K Lewins and N Gaskell, “Jurisdiction Over Criminal Acts on Cruise Ships: Perhaps, Perhaps, Perhaps?” (2013) 37 Criminal Law Journal 221. MacLeod v Attorney-General (NSW) [1891] AC 455 at 458–459 per Halsbury LC. By the 18th century, the benefit was no longer confined to persons belonging to religious orders and any person who could read received the benefit subject to being branded on the thumb to prevent a second claim. The range of “clergyable crimes” was reduced, and from 1718 onwards, a condition of the claim was that the offender submit to transportation for seven years: WR Cornish and G Clarke, Law and Society in England 1750–1950 (London: Sweet and Maxwell, 1989) p 558. Although diminishing in its authority, the ecclesiastical courts retained jurisdiction to try members of their parish for crimes such as drunkenness, adultery, incest, brawling and failure to attend church, until the late 18th century: p 546. [2.45]

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by legislation in the course of the 18th and 19th century, until it was formally abolished by Imperial statute in 1827. The practice of raising this plea seems not to have taken root in the Australian colonies. 85 Status, nevertheless, continues to play some role in determining the scope and application of the criminal law in Australia. Military discipline law is an exception to territoriality: members of the Australian Defence Force are subject to offences (disciplinary offences drawn from the Defence Force Discipline Act 1982 (Cth) or imported from the Criminal Code (ACT)). These are discussed in Chapter 15, [15.25] “Extraterritorial Criminal Jurisdiction”. During the colonial period, the legal status of the Indigenous persons under British rule took many years to resolve, vexing colonial courts and administrators as to whether the full jurisdiction and demands of English law governed crimes committed by and between “native persons”.

Historical perspectives The Status of Aboriginal Persons: Conflict and Contestation [2.50] A status-based approach to criminal jurisdiction, rather than strictly territorial

approach, applied during the first 40 years of colonisation in relation to Aboriginal persons. The initial approach de facto recognised the sovereignty of native tribes in relation to resolving disputes among themselves (known as crimes inter se). 86 From the 1820s onwards, increasing violent interactions between the settler and Aboriginal communities raised the inevitable legal question whether white settlers or military officers could be amenable to British justice for committing crimes against Aboriginal persons. The newly founded Supreme Court of New South Wales first addressed this issue in R v Lowe, 87 where a military officer was charged with the murder of an Aboriginal man. The case provided the first opportunity for the Supreme Court to examine whether the criminal jurisdiction protected Aboriginal people. Before the trial commenced, the leading lawyers, Dr Wardell and Mr Wentworth, objected to the court’s jurisdiction to try a British subject for a crime committed against a native. The lawyers’ submissions drew on natural law theory and law of nations (international law) to dispute whether natives who had not submitted to British sovereignty could be amenable to the protection or indeed jurisdiction of the colony’s criminal court. Forbes CJ took a clear stance on the position recognising that the Supreme Court applied only British Acts of Parliament, and could not take cognisance of any other body of law: “How far it is proper to pass an act, taking in these territories, and naming them the territory of New South Wales, and establishing therein our own rules and ordinances, is a question not for us to entertain. It is sufficient for us to say that the territory is recognised as the Colony of New South Wales. This is a judicial fact which comes within our knowledge; and beyond that we cannot go. … If the Act of Parliament has recognised a sovereignty over this country and recognised the application of English law here, we must look to British law as established here de facto.” 88

85 86

87 88

See GD Woods, A History of Criminal Law in New South Wales: The Colonial Period 1788–1900 (Sydney: Federation Press, 2002) pp 113–114. See generally on the challenges confronting British colonists in responding to violence within and between Aboriginal peoples, H Douglas and M Finnane, Indigenous Crime and Settler Law: White Sovereignty After Empire (Basingstoke: Palgrave Macmillan, 2012). R v Lowe [1827] NSWSupC 32. R v Lowe [1827] NSWSupC 32.

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The Court found the Act applied to the territory where the offence occurred and also that the “native, whatever be his denomination, [was] a British subject”. The trial of the military officer proceeded in circumstances revealing a cover-up of the killing by the military officers and local magistrates. 89 The military jury which sat with the Chief Justice acquitted the accused for lack of evidence after only five minutes deliberation! The outcome in Lowe resonates with David Neal’s conclusion: “For the original inhabitants of the colony, the Aborigines, the rule of law provided cold comfort. For the white free settlers, convicts and emancipists, it provided a measure of protection against power from the top, and eventually was the instrument through which their claim to political status was realised; for the Aborigines, its authority stood behind their forceful dispossession, its protection proved largely illusory, its courts were closed to Aboriginal testimony, and its principles denied the existence of their own laws.” 90

Lowe, which is only now receiving the academic attention it deserves, forms part of a complex legal narrative about the legal treatment of Aboriginal subjects. Indeed, two years later, in R v Ballard, 91 Forbes CJ returned to the question whether English law could apply to the murder of an Aboriginal native by another, of whom were “wandering about the country, and living in the uncontrolled freedom of nature”. Forbes CJ regarded the case as being sui generis and unlike Lowe was more receptive to the arguments based on natural law. In the absence of legal authority to the contrary and consistent with practices of the North American colonies, English law had no application to crimes committed between Aborigines. In Forbes CJ’s view, it was improper to interfere with the institutions of natural justice in which Aborigines redressed their wrongs by retaliation rather than through the courts. The legal historian Bruce Kercher, in his commentary on the early 19th century cases dealing with criminal jurisdiction over Aborigines, concluded that the significance of Ballard has been largely overlooked. This is hardly surprising as the decision was not reported, and over-shadowed by the subsequent decision in R v Murrell, 92 which seven years later held that Aborigines were amenable to English law for offences committed against one another, effectively reversing Ballard. In Murrell criminal jurisdiction was defined territorially, rather than by the status of the offenders and victims as natives. In doing so, as Kercher notes, Murrell “has the dubious reputation of being the founding case for the application of the terra nullius doctrine in Australia”. 93

89 90

91 92 93

For a detailed commentary and analysis of the case, see K Chaves, ““A Solemn Judicial Farce, the Mere Mockery of a Trial”: The Acquittal of Lieutenant Lowe, 1827” (2007) 31 Aboriginal History 122. D Neal, The Rule of Law in a Penal Colony (Cambridge: Cambridge University Press, 1991) p 78. For a general assessment of the role of the rule of law see I Holloway, S Bronitt and J Williams, “Rhetoric, Reason and the Rule of Law in Early Colonial New South Wales” in H Foster, B Berger and AR Buck (eds), The Grand Experiment: Law & Legal Culture in British Settler Societies (Vancouver: University of British Columbia Press, 2008). R v Ballard [1829] NSWSC 26. R v Murrell (1836) 1 Legge 72. B Kercher, “Ballard, R v Murrell and R v Bonjon” (1998) 3 Australian Indigenous Law Reporter 410. A similar stance was taken in Western Australia in R v Wewar (1842). For an excellent examination of how colonial courts struggled with jurisdiction over Aboriginal violence beyond the frontier: H Douglas and M Finnane, Indigenous Crime and Settler Law: White Sovereignty After Empire (Basingstoke: Palgrave Macmillan, 2012). [2.50]

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The autonomy of Aboriginal law and jurisdiction was ultimately suppressed by the spreading fiction of terra nullius—that is, that the continent of Australia was uninhabited territory, barren of Indigenous peoples and systems of law. Not all colonial judges accepted this legal fiction: see the decision of Willis J of the Supreme Court of NSW for the District of Port Phillip in R v Bonjon, 94 also discussed by Kercher. Kercher concludes that decisions like Ballard and Bonjon warrant more contemporary attention “not least because they are more consistent with the writings of Vattel [a distinguished international law scholar of the period] on the rights of nomadic peoples and … because they are more consistent with the rights of native peoples in other jurisdictions”. 95 Such claims have only in the last two decades been revived in the wake of the recognition of native title in Mabo v Queensland (No 2). 96 The implications of claims of Aboriginal criminal jurisdiction are further explored in [2.210] “The Principle of Equality Before the Law”. Tests of criminal jurisdiction: from territoriality to territorial nexus [2.55] The tests of territoriality developed by courts and legislatures, while not always

determinative, provide the legal framework within which jurisdiction is negotiated, and where necessary, determined by the jury or tribunal of fact. The principle of territoriality is rarely visible, revealing itself only in cases where criminal conduct and individuals traverse domestic or international frontiers. The principle of territoriality under common law [2.60] The leading case of Ward v The Queen 103 provided the High Court with the

opportunity for a sustained examination of the common law principles governing criminal jurisdiction. The accused, standing on the Victorian bank of the Murray River, shot and killed his victim who was standing on the opposite bank in New South Wales. The accused was tried and convicted of murder in Victoria. On appeal, the accused challenged the jurisdiction and the High Court considered that the question of jurisdiction fell to be determined either by: (1) the place where the conduct causing death initiated (the initiatory theory); or (2) the place where the consequences of that conduct occurred (the terminatory theory). 104 Under international law, either of these tests—which are termed subjective and objective territoriality respectively—will suffice for claiming domestic criminal jurisdiction. 105 The High Court in Ward first had to resolve the territorial limits of New South Wales. 106 The Court then considered and confirmed that the second approach—the terminatory 94 95 96 103

“Report of R v Bonjon”, Port Phillip Patriot (Melbourne), 20 September 1841. B Kercher, “R v Ballard, R v Murrell and R v Bonjon” (1998) 3 Australian Indigenous Law Reporter 410. Mabo v Queensland (No 2) (1992) 175 CLR 1. Ward v The Queen (1980) 142 CLR 308.

104

These theories, and the authorities cited supporting them, are discussed in D Lanham, Cross-Border Criminal Law (Melbourne: FT Law & Tax Asia Pacific, 1997) Ch 1. The High Court relied extensively on an article reviewing these competing theories: see G Williams, “Venue and Ambit of Criminal Law—Part III” (1965) 81 Law Quarterly Review 518. As Lanham notes (at p 6), the High Court omitted to mention that Glanville Williams favoured the initiatory rather than the terminatory theory! I Shearer, “Jurisdiction” in S Blay, R Piotrowicz and M Tsamenyi (eds), Public International Law: An Australian Perspective (2nd ed, Melbourne: Oxford University Press, 2005) p 159. The High Court held that the border between the two States ran along the top of the southern bank of the Murray River. Stephen J (with whom the rest of the High Court agreed) discussed a wide range of legal and historical sources, including the Constitution of New South Wales: Ward v The Queen (1980) 142 CLR 308 at 337. As the Constitution defined the State as extending across the “whole Watercourse”, Stephen J reviewed the legal effect of floods and tides on jurisdiction.

105 106

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theory—applied to these facts. Accordingly, New South Wales, rather than Victoria, had jurisdiction to try the accused for murder. This question was not merely an academic exercise, as Murphy J observed, 107 since the defence of diminished responsibility was available in New South Wales, but not in Victoria. Clearly, decisions to submit to or challenge jurisdiction involve a range of tactical as well as substantive legal considerations. As David Lanham points out, the “cross-border rules” laid down in Ward are modelled on crimes that have “one core element which dictates where it may be tried”. 108 These rules do not easily apply to crimes that have multiple elements that may be committed at different times and from different locations. As Gleeson CJ remarked in Lipohar v The Queen: “Discussion of the rule [governing jurisdiction in cases of conspiracy to defraud] usually proceeds upon the assumption that the offence is committed in only one place. That assumption is not a logical necessity, and whether it should be revised is a question that may be addressed in some future case.” 109

The tests may also be criticised as anthropocentric since they are modelled around human individuals rather than corporations. As Peter Alldridge has observed, the process of jurisdiction becomes an even more “metaphysical activity” where the criminal conduct and responsibility is diffused across the complex organisational structure of multinational global corporations. 110 The terminatory test in Ward v The Queen has been widely regarded as being the basis for criminal jurisdiction under the common law. 111 However, it is not clear whether the principle of territoriality (based on the terminatory theory) endorsed in Ward was intended to apply beyond the offence of homicide. As David Lanham pointed out, the common law rules for determining the jurisdiction for murder in many respects were “exceptional”. 112 They were framed against the historical background of murder as a felony punishable by death. Extending the jurisdiction for homicide was a politically sensitive matter, with the potential to unhinge relations between the States. 113 In these circumstances, it was not surprising that the courts adopted a test of jurisdiction that rested on territorial borders rather than some other base, such as nationality or domicile of the victim or the accused. While Ward is often represented as the ″general principle″ for determining jurisdiction, as we shall explore below, other courts have acknowledged the limitations of the terminatory theory and have adopted more flexible tests or conceptions of territoriality. A broader, inclusive test is particularly evident in cases where the criminal conduct appears to genuinely have a multi-jurisdictional dimension. 114 To widen the basis of territoriality in cases of 107 108 109 110 111

112 113 114

Ward v The Queen (1980) 142 CLR 308 at 340. D Lanham, Cross-Border Criminal Law (Melbourne: FT Law & Tax Asia Pacific, 1997) p 3. Lipohar v The Queen (1999) 200 CLR 485 at 498. P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) p 142. C Dellitt, B Fisse and P Keyzer, Chapter 5, “Territorial and Extraterritorial Jurisdiction” in 9 CRIMINAL LAW PRINCIPLES 9.1 “The Criminal Laws”, The Laws of Australia (Sydney: Law Book Company, 1993–) [1250]. New South Wales: R v Kron (1995) 78 A Crim R 474; South Australia: R v Collins (1986) 42 SASR 47; Victoria: Graham v The Queen [1984] VR 649. The terminatory test has been incorporated into the tests of territorial jurisdiction in the Codes adopted in Queensland, Tasmania and Western Australia. D Lanham, Cross-Border Criminal Law (Melbourne: FT Law & Tax Asia Pacific, 1997) Ch 1. D Lanham, Cross-Border Criminal Law (Melbourne: FT Law & Tax Asia Pacific, 1997) pp 8–9. Dishonest and false representations made in one jurisdiction may result in obtaining of property or services in another: see R v Hansford (1974) 8 SASR 164, discussed in D Lanham, Cross-Border Criminal Law (Melbourne: FT Law & Tax Asia Pacific, 1997) p 11. [2.60]

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conspiracy, the courts have categorised the physical elements of the offence as being “continuing” in nature, conveniently placing the agreement and its objective in the same jurisdiction. 115 The principle of territoriality modified by statute [2.65] Legislative reforms have modified or substantially qualified the traditional territorial

test of jurisdiction. In Queensland and Western Australia, the legislature has adopted a composite test, fusing the initiatory and terminatory theories: Criminal Code (Qld), s 12; Criminal Code (WA), s 12. Other jurisdictions, such as the Australian Capital Territory, New South Wales and South Australia, have supplemented the common law with a statutory test of jurisdiction based on “territorial nexus” or “geographical nexus” 116. In other jurisdictions, the legislature responded by creating an ad hoc exception in favour of extraterritoriality for specific offences, including theft (eg, Crimes Act 1958 (Vic), s 80A), or computer offences (eg, Criminal Code (Tas), s 257F(1)). The New South Wales provision provides as follows: Section 10C Extension of offences if there is a geographical nexus (1) If: (a) all elements necessary to constitute an offence against a law of the State exist (disregarding geographical considerations), and (b) a geographical nexus exists between the State and the offence, the person alleged to have committed the offence is guilty of an offence against that law. (2) A geographical nexus exists between the State and an offence if: (a) the offence is committed wholly or partly in the State (whether or not the offence has any effect in the State), or (b) the offence is committed wholly outside the State, but the offence has an effect in the State.

Significantly, these statutory provisions do not abrogate the common law. While territorial or geographical nexus seems to constitute a significant departure from the terminatory theory, it is unclear whether the legislative test will provide greater flexibility than the common law, particularly in light of developments in the High Court, which are discussed below. 117 Beyond territoriality: the limits of the common law? [2.70] As jurisdictional challenges are resolved “case by case”, there is some uncertainty

whether the principle, theory or test of territoriality endorsed applies to all offences or is 115

116 117

DPP v Doot [1973] AC 807. “The concept of a continuing offence is invoked to expand the scope of territorial jurisdiction. That concept is used to circumvent the difficulties of pinpointing when and where a crime takes effect”: C Dellitt, B Fisse and P Keyzer, Chapter 5, “Territorial and Extraterritorial Jurisdiction” in 9 CRIMINAL LAW PRINCIPLES, 9.1 “The Criminal Laws”, The Laws of Australia (Sydney: Law Book Company, 1993–) [1280]. The complex body of authority on conspiracy to commit crime abroad or in another Australian jurisdiction is discussed in M Goode, “Two New Decisions on Criminal “Jurisdiction”: The Appalling Durability of Common Law” (1996) 20 Criminal Law Journal 267 at 273–281. See also Crimes Act 1958 (Vic), s 80A. See Criminal Code (ACT), Pt 2.7; Crimes Act 1900 (NSW), s 10C; Criminal Law Consolidation Act 1935 (SA), s 5G. It has been suggested that territorial nexus has a “similar effect” to the real and substantial link test: C Dellitt, B Fisse and P Keyzer, Chapter 5, “Territorial and Extraterritorial Jurisdiction” in 9 CRIMINAL LAW PRINCIPLES, 9.1 “The Criminal Laws”, The Laws of Australia (Sydney: Law Book Company, 1993–) [1270]. Some early decisions adopted a restrictive approach to the provision, leading one commentator to conclude that: “It appears at this stage that the courts will so interpret [the provision] to achieve nothing that was not already achieved by common law”: M Goode, “Two New Decisions on Criminal “Jurisdiction”: The Appalling Durability of Common Law” (1996) 20 Criminal Law Journal 267 at 282.

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crime-specific. As a review of the concept of territoriality concluded: “Any reader seeking a common thread of reason, rationale or plain legal reasoning in these and other decisions will be bitterly disappointed”. 118 Resolving jurisdiction exclusively by reference to the terminatory test can be overly restrictive. In addition to legislative modifications, discussed above, the test of jurisdiction has also been broadened by judicial development of the common law. In cases where the criminal activity has cross-border dimensions, some judges have resorted to more flexible tests of jurisdiction that fall broadly into one of two categories: (1)

whether the conduct of the accused affects “the peace, welfare and good government of the State” 119—this is also known as the “Queen’s Peace” test 120 or the protective theory of jurisdiction; 121 or (2) whether there is a “real and substantial link” between the offence and the jurisdiction seeking to try it. 122 The first test, which dispenses with the need to establish any physical connection to a territory, is particularly broad. Notwithstanding the inherent vagueness and legal malleability of this test, it has been “applied enthusiastically to drug and terrorism offences”. 123 The second test, which offers similar flexibility though at the cost of some certainty, has been examined by the High Court in Lipohar v The Queen. 124 The High Court in Lipohar involved determining jurisdiction in relation to complex cross-border fraud. The accused, who was tried in South Australia for conspiracy to defraud, devised a fraudulent scheme involving activity in Indonesia, Thailand, Queensland, Victoria and South Australia. The intended victim was a company based in Adelaide, and so it was in South Australia that proceedings were instituted against the accused. In this case, the parties conceded that the territorial nexus test, which was contained at that time in s 5C of the Criminal Law Consolidation Act 1935 (SA), did not confer jurisdiction. As a consequence, the High Court examined the applicable common law tests. 118

M Goode, “Two New Decisions on Criminal ’Jurisdiction’: The Appalling Durability of Common Law” (1996) 20 Criminal Law Journal 267 at 269.

119

R v Hansford (1974) 8 SASR 164 at 195 per Wells J. The origins of this formulation lie in Board of Trade v Owen [1957] AC 602 at 624 per Tucker LJ. The House of Lords held that it could be conspiracy to enter into an agreement in England to commit a crime abroad, provided that the contemplated crime abroad would be indictable had it occurred in England: “It is necessary to recognise the offence to aid in the preservation of the Queen’s peace and the maintenance of law and order within the realm”: at 624–625. The Australian courts have recast this formulation into “peace, welfare and good government”, a phrase from the plenary power to legislate contained in State Constitutions: Union Steamship of Australia Pty Ltd v King (1988) 166 CLR 1 at 6. As a principle of jurisdiction, the phrase is vague and imposes few real restrictions: R v Fan (1991) 24 NSWLR 60. A Leaver, Investigating Crime: A Guide to the Power of Agencies Involved in the Investigation of Crime (Sydney: LBC Information Services, 1997) pp 43–47. It has been suggested that this principle comes from the period of radical nationalism which produced the French and American revolutions, and was originally limited to national security crimes: Model Criminal Code Officers Committee/Standing Committee of Attorneys–General, Chapter 4—Damage and Computer Offences and Amendments to Chapter 2 (Jurisdiction), Report (2001) p 222. The Supreme Court of Canada discarded the old territoriality tests in favour of recognising jurisdiction where there is “a real and substantial link between the offence and the country”: Libman v The Queen (1985) 21 CCC (3d) 206 at 232. This test was endorsed by the Privy Council in Liangsiriprasert v Government of the USA [1991] 1 AC 225. Model Criminal Code Officers Committee/Standing Committee of Attorneys-General, Chapter 4—Damage and Computer Offences and Amendments to Chapter 2 (Jurisdiction), Report (2001), p 224. Lipohar v The Queen (1999) 200 CLR 485.

120 121

122

123 124

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The majority of the High Court, affirming jurisdiction on these facts, applied various approaches, including whether there was: (a) a “sufficient connection”; 125 or (b) a “real link” 126

between the offence and the jurisdiction. Kirby J, dissenting, adhered to the existing test of jurisdiction based on territoriality. He had been initially attracted to the Supreme Court of Canada’s “real and substantial link” test, noting the desirability of adopting simple rules of jurisdiction within a federal system. 127 Although not pressed by counsel, he noted that the Commonwealth Constitution could provide a basis for uniform rules. In this case, the matter fell to be determined by the rules enacted by the legislature or judges applying the common law. In South Australia, the legislature had enacted remedial provisions in the form of a territorial nexus test. In Kirby J’s view, the courts must restrain their enthusiasm to repair omissions appearing in such legislation. Abandoning the principle of territoriality in the common law, in his view, would require resort to legal fictions to bring conduct within the jurisdiction; such an approach would have the effect of creating new offences and applying them retrospectively. It would also require the courts to subvert the territorial division of Australia, reflected in the Constitution, into separate geographical areas of States and Territories. Since these new tests of jurisdiction extend the criminal law beyond conventional boundaries, there is an increased possibility of concurrent claims of jurisdiction between the Commonwealth, States and Territories, as well as from overseas jurisdictions. An obvious consequence of greater inclusivity is that the issue of jurisdiction requires judicial attention to focus explicitly on policy matters, such as maintaining good relations between States (known as the requirements of “international comity”), 128 as well as practical law enforcement considerations such as the necessary resources and evidence for a successful prosecution. 129 Jurisdiction is determined not simply by the application of formal legal rules, but rather involves the exercise of judicial discretion and the weighing of competing policy considerations, both national and international. 130 This issue of comity has been addressed by the High Court in Lipohar v The Queen, where Gaudron, Gummow, and Hayne JJ held that considerations of comity would have no bearing on relations between jurisdictions within a federal system since 125 126 127 128

129

130

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Lipohar v The Queen (1999) 200 CLR 485 at 17 per Gleeson CJ, at 42 per Gaudron, Gummow and Hayne JJ. Lipohar v The Queen (1999) 200 CLR 485 at 84 per Callinan J. Lipohar v The Queen (1999) 200 CLR 485 at 62 per Kirby J. As the Canadian decision of Libman v The Queen [1985] 2 SCR 178 acknowledged: “The outer limits of the test [of real and substantial link] may, however, well be coterminous with the requirements of international comity”: at 213–214 per La Forest J. In relation to crimes committed on the high seas, the “flag state” jurisdiction of the ship on which such a crime took place may lack the resources or resolve to investigate or prosecute such matters: K Lewins and N Gaskell, “Jurisdiction Over Criminal Acts on Cruise Ships: Perhaps, Perhaps, Perhaps?” (2013) 37 Criminal Law Journal 221 at 224. David Lanham reviews authorities in which non-legal factors were considered relevant to jurisdiction, representing them as a checklist of “policy considerations”: Cross-Border Criminal Law (Melbourne: FT Law & Tax Asia Pacific, 1997) pp 16–20. The breadth of a principle informed by policy or comity would not violate international law since a State may claim criminal jurisdiction unless there is proved to be a rule of international law to the contrary: Lotus Case (1927) PCIJ Series A No 10, discussed in I Shearer, Starke’s International Law (11th ed, Sydney: Butterworths, 1994) pp 183–184. The decision has been the subject of criticism: J Crawford, Brownlie’s Principles of Public International Law (8th ed, Oxford: Oxford University Press, 2012) pp 457–458. [2.70]

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“[w]ithin Australia, any rationale for the common law rule respecting comity between what became the States disappeared with federation.” 131 Lipohar v The Queen represents yet another “nail in the coffin” for territoriality. As reflected in these statutory and common law developments, the modern trend is against the traditional view that “all crime is local”. Broader tests of territoriality based on a territorial or geographical nexus, or a real, sufficient link or connection, cast further doubt on the hitherto fundamental assumption that there is only one core element of an offence that situates the crime in a particular jurisdiction. Until Lipohar v The Queen, the Australian courts remained faithful to territoriality as the appropriate test of jurisdiction. 132 Indeed, the Model Criminal Code Officers Committee (MCCOC) expressed concern that the real and substantial link test, which mirrored that which was applied to determine jurisdiction in torts cases, would lead to uncertainty in the application of the criminal law. The MCCOC concluded that such uncertainty explained the reluctance of the Australian courts “to abandon the cloak of territorialism”. 133 The Canadian approach has, however, support from legal commentators. 134 Notwithstanding the diversity of tests and theories underlying the principle of territoriality, jurisdiction rarely forms the basis for an objection by the defence. This is probably because the tests of jurisdiction under the common law and statute are inclusive rather than exclusive, and in practice it is rare to find a case where a sufficient territorial connection could not be found under one or other of the relevant tests. 135 In practice, the uncertainties in the present law do not significantly impair the functioning of the administration of criminal justice. Indeed, the current patchwork of competing common law “theories” merely provides a flexible framework within which police, prosecutors and defence negotiate jurisdiction. Only where such negotiation fails will a judge be required to direct the jury on the topic of territoriality, which the prosecution must establish on the balance of probabilities. 136 The trend extending domestic criminal law offshore has continued to intensify, especially in the aftermath of the September 11, 2001 terrorist attacks. In Australia, a more modern scheme for determining jurisdiction has been developed for the Model Criminal Code. This model scheme has been applied to federal criminal offences by the Criminal Code (Cth) Div 15, ss 15.1 – 15.4. The federal scheme of jurisdiction in the Criminal Code (Cth) is discussed in Chapter 15, [15.35]. The principle of territoriality, traditionally conceived, minimises and conceals the transnational dimensions of the criminal law. As territoriality is expanded or transcended, a fragmented and pluralistic picture of the modern criminal law emerges. The kaleidoscopic 131 132 133 134 135 136

Lipohar v The Queen (1999) 200 CLR 485 at 526. Similar comments were made by Gleeson CJ at 503 and Kirby J at 550–551. The Canadian test of “real and substantial link” had been criticised in Re Hamilton-Byrne [1995] 1 VR 129 at 139–140, 142; Isaac, Tajeddine & Elachi (1996) 87 A Crim R 513 at 522. Model Criminal Code Officers Committee/Standing Committee of Attorneys-General, Chapter 4—Damage and Computer Offences and Amendments to Chapter 2 (Jurisdiction), Report (2001), pp 229–230. See, for example, M Goode, “Two New Decisions on Criminal ’Jurisdiction’: The Appalling Durability of Common Law” (1996) 20 Criminal Law Journal 267 at 279–280. C Dellitt, B Fisse and P Keyzer, Chapter 5, “Territorial and Extraterritorial Jurisdiction” in 9 CRIMINAL LAW PRINCIPLES, 9.1 “The Criminal Laws”, The Laws of Australia (Sydney: Law Book Company, 1993–) [1250]. Thompson v The Queen (1989) 169 CLR 1 per Mason CJ, Dawson and Gaudron JJ. Since venue will often affect the range of defences and level of punishment, the minority (Brennan and Deane JJ) took the view that in cases where liability in the “other” jurisdiction is materially different, then the prosecution must establish jurisdiction “beyond reasonable doubt”. Under the common law, the burden of proof lies with the prosecution. In some jurisdictions, this has been displaced by a presumption that territorial nexus exists unless the contrary is proved: Crimes Act 1900 (NSW), s 10E(1). [2.70]

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quality of criminal jurisdiction has implications for other general principles, such as fairness and equality before the law. For example, in negotiating and determining the venue of the proceedings, law enforcement officials, prosecutors and judges must be mindful of the danger that the accused may be unfairly subject to prosecution and punishment in another State or Territory for the same conduct, thereby violating the principle against “double jeopardy”. 137 These concerns are specifically addressed in the Model Criminal Code rules governing jurisdiction, discussed above, that permit the accused to raise as a defence the fact that the conduct overseas does not constitute an offence that corresponds to the domestic offence charged. The increasingly pluralistic and fragmented nature of jurisdiction in Australian law also provides scope for the recognition of Indigenous or native criminal jurisdiction. As we explore, at [2.200], the acceptance of a status-based principle of criminal jurisdiction may lead to conflict with the fundamental principle of equality—particularly the ideal that individuals should be subject to the same treatment before the law. The growth of the federal jurisdiction and cooperative federalism [2.75] Federalism undoubtedly complicates conceptions of territoriality in Australia. In the

field of criminal law, federal, State and Territory substantive laws and procedures for enforcement overlap. This overlap between laws has grown significantly in recent years because of the expansion of federal criminal jurisdiction. 138 The Commonwealth’s legislative power to enact criminal law is restricted by the Constitution. Since the Constitution does not include an express power to legislate generally in the field of criminal law, to be constitutionally valid, federal offences must be supported by, or “incidental” to, an existing head of power. The High Court has construed these heads of power broadly, providing a wide mandate for the “federalisation” of criminal law and procedure. For example, in relation to drugs, federal jurisdiction derives from the Commonwealth’s legislative power under the Constitution to regulate “trade and commerce”, as well as “external affairs”: Commonwealth Constitution, s 51(i) and (xxix). In relation to the latter, the power to legislate is triggered by Australia’s ratification of many international treaties and conventions dealing with drugs: see Chapter 14, [14.160]. It was estimated ten years ago by the Australian Law Reform Commission that federal crimes account for approximately 10% of all criminal activity in Australia. 139 The review of federal criminal law, though not exhaustive, identified 1,555 federal criminal offences, most of which were regulatory offences found in legislation dealing with licensing regimes, trade practices and corporate law. 140 The trend to expand federal criminal law, to combat transnational crime threats and enact new regulatory offences to support national cooperative regimes, has continued unabated. At the level of enforcement, there are national cooperative schemes for prosecution in specific areas, such as the arrangements governing the prosecution of offences enacted under the Corporations Act 2001 (Cth). Under coordinating legislation, the Commonwealth Director of Public Prosecutions (DPP) has been assigned the role of prosecuting offences under uniform State and Territory laws, in effect “federalising” crimes in areas where the Commonwealth lacks constitutional authority. However, these 137 138

139 140

D Lanham, Cross-Border Criminal Law (Melbourne: FT Law & Tax Asia Pacific, 1997) Ch 3. The expansion of federal criminal law is reflected in the publication of a multi-volume looseleaf service and online resources: R Watson and A Watson, Australian Criminal Law—Federal Offences (Sydney: Lawbook Co, 1995–) and N Williams, A Payne and S McNaughton, Federal Criminal Law (Sydney: LexisNexis, 1994–). Australian Law Reform Commission, Sentencing of Federal Offenders, Issues Paper 29 (2005). Australian Law Reform Commission, Securing Compliance: Civil and Administrative Penalties in Federal Jurisdiction, Discussion Paper 65 (2002) [1.10].

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national cooperative arrangements may lack a firm constitutional basis. As Kirby J noted in R v Hughes, national schemes, in the absence of an express referral of power from the States, can be vulnerable to constitutional challenges: “Under our Constitution, criminal liability and punishment, when provided in a federal law, must be supported by demonstrable constitutional authority. Convenience and desirability are not enough if the constitutional foundation is missing.” 141

In the Hughes case, the High Court held that the authority of the Commonwealth DPP to prosecute State or Territory corporate offences under the cooperative scheme passed the constitutional test since the activity by the accused in that case impinged upon two heads of power: “trade and commerce” with other countries and “affairs external to Australia”. Consequently, the federal laws authorising the DPP to exercise enforcement powers under the relevant mirror State legislation – in this particular instance, the Corporations Act of Western Australia – were valid. However, the constitutional basis for the Commonwealth DPP prosecuting State and Territory corporate offences generally remained uncertain. As Kirby J concluded, Hughes, while upholding the national scheme on these particular facts, provided: “a fragile foundation for a highly important national law. The present accused fails in his challenge. But the next case may not present circumstances sufficient to attract the essential constitutional support.” 142

To resolve this uncertainty left by the ruling in Hughes, and provide greater assurance as to the constitutionality of a national cooperative approach to corporate regulation, the States subsequently made a “referral of power” to the Commonwealth in respect of matters relating to the formation of companies, corporate regulation and the regulation of financial services and products, and the associated investigation and enforcement powers, under the Corporations Act 2001 (Cth).

The Principle of Fairness For all the grandiose descriptions that have been offered of the adversary system of trial, and for all the pomp and self-esteem that tends to affect its professional participants, it is the best method we have yet devised for giving the suckers an even break. 143

The rhetoric of fairness and criminal justice [2.80] Alongside legality and the rule of law, the principle of fairness plays an important

legitimating function in the criminal law. It holds out to the accused, victims and the wider community the promise of obtaining justice from the substantive law and criminal process. From a philosophical perspective, justice has been conceived in a number of different ways. Liberal theorists have conceived justice in terms of “fairness”, equality of treatment and respect for individual rights. 144 The centrality accorded to individuals and their rights within this conception of justice has attracted substantial criticism. Feminist legal theorists have exposed how liberal conceptions of justice have only a limited ability to address structural and 141 142 143 144

R v Hughes (2000) 202 CLR 535 at 583. R v Hughes (2000) 202 CLR 535 at 584. Geoffrey Robertson QC, The Justice Game (London: Vintage, 1999) p 386. See J Rawls, A Theory of Justice (Cambridge, Mass: Harvard University Press, 1980); R Dworkin, Taking Rights Seriously (London: Duckworth, 1977), respectively. For a review of competing theories of justice, see T Campbell, Justice (3rd ed, Basingstoke: Macmillan, 2010) and S Wojciech (ed), Justice (Aldershot: Ashgate, 2001). [2.80]

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group-based discrimination that lies beyond the public sphere. 145 Republican theorists have similarly rejected ideas of criminal justice as “just deserts” or retribution, arguing instead for a theory based on the promotion of social freedom or dominion: see Chapter 1, [1.240]. Such theoretical debates about the meaning of justice have practical as well as philosophical implications for the criminal law, especially when translated into concrete legal rights and claims based on fairness, equality and privacy. Fairness in the administration of law is regarded as “fundamental”. It promises legitimacy for the criminal process through maintaining a balance between the State and the citizen. This equilibrium is reflected in the concept of “equality of arms” that underscores the right to a fair trial in international human rights law. 146 As McBarnet has observed: “The criminal justice process is the most explicit coercive apparatus of the State and the idea that the police and the courts can interfere with liberties of citizens only under known law and by means of due process of law is thus a crucial element in the ideology of the democratic State.” 147

This relationship between legality and fairness in upholding justice is complex. Fairness functions as a curative for the strict unbending quality of legality. The inherent opposition between these two concepts is captured within the phrase “fair trial according to law”, or the American version “due process of law” entrenched by the Fourteenth Amendment to the United States Constitution. As Gaudron J noted in Dietrich v The Queen: “It is fundamental to our system of criminal justice that a person should not be convicted of an offence save after a fair trial according to law. The expression ‘fair trial according to law’ is not a tautology. In most cases a trial is fair if conducted according to law, and unfair if not. If our legal processes were perfect that would be so in every case. But the law recognizes that sometimes, despite the best efforts of all concerned, a trial may be unfair even though conducted strictly in accordance with law. Thus, the overriding qualification and universal criterion of fairness!” 148

The centrality accorded to the “trial” by the common law reflects the limited judicial control over criminal investigation and prosecution within adversarial systems. With the exception of judicial supervision of pre-trial warrants, the trial is the forum where judges can demonstrate their fidelity to the principles of legality and fairness. Thus, the courts have recognised a right to a fair trial “in the interests of seeking to ensure that innocent people are not convicted of criminal offences”. 149 As we will examine below, the judicial commitment to avoiding unfairness is embodied in a wide range of procedural rules, such as the presumption of

145

148 149

While the theories of Rawls and Dworkin presume the existence of the welfare state and may be described as broadly welfarist, they nevertheless take individuals and their rights as the starting point. Being addressed to political action in the public sphere, the theories have only restricted scope for achieving social justice: see N Lacey, Unspeakable Subjects—Feminist Essays in Legal and Social Theory (Oxford: Hart Publishing, 1998) Ch 2. This principle has been drawn from the fair trial guarantees in Art 6 of the European Convention on Human Rights: A Ashworth and M Redmayne, The Criminal Process (4th ed, Oxford: Oxford University Press, 2010) p 34, noting that the European Court of Human Rights has played a significant role in implying this principle of equality of arms into Art 6, which has crystallized as the right of a defendant to have disclosure of “all material evidence for or against the accused”. D McBarnet, Conviction: Law, the State and the Construction of Justice (London: MacMillan, 1981) p 8 (original emphasis). Dietrich v The Queen (1992) 177 CLR 292 at 362 (footnotes omitted). See also Deane J at 326. Jago v District Court (NSW) (1989) 168 CLR 23 at 42 per Mason CJ.

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146

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innocence and burden of proof, as well as rules governing the admissibility and exclusion of evidence. The denial of a fair trial to an accused is a ground for setting aside a conviction on the grounds of miscarriage of justice. 150 The fairness principle is directed towards the process, not the substance, of the criminal law. It does not require the criminalisation or decriminalisation of any type of conduct. Rather, it merely insists that criminal proceedings operate in a way that avoids an unfair trial by minimising the risk of innocent people being convicted. So while there may be evidence that law enforcement policies and definitions of substantive crimes discriminate against certain groups within society, judges can be relied upon to apply the rules governing fact and guilt determination during the trial in an objectively fair manner. The importance of fair treatment plays a vital role in preserving public confidence in the administration of justice. There is ample evidence from psychological research that people place great emphasis on the fairness of procedures, even when they disagree with the outcome. 151

Public perceptions concerning police and criminal courts acting fairly [2.85] An Australian Institute of Criminology study reported on data from the 2007 Australian Survey of Social Attitudes regarding public attitudes towards the police and criminal courts. Regarding these institutions’ propensity to act fairly, 73.7% of respondents had, at least, quite a lot of confidence in the ability of police to act fairly, in comparison to only 51.5% of respondents with the same level of confidence in the criminal courts. 152 Significantly, the authors ran statistical regressions which found that individual respondents who had had actual contact with the police in the 12 months prior to completing the survey were slightly—but significantly—less confident in police, while those with contact with the criminal courts had higher levels of confidence in them. 153 It is also interesting that 66.9% of respondents had, at least, quite a lot of confidence in the ability of criminal courts to have regard for defendants’ rights (compared to 46.6% of respondents with a similar confidence in the criminal courts’ regard for victims’ rights), reflecting perhaps a historical focus on defendants’ rights. 154

This representation of criminal justice as a “balance” between crime control and due process is problematic: see Chapter 1, [1.130]. Critical and socio-legal research has suggested that due 150

151

152

153

154

In McKinney v The Queen (1990) 171 CLR 468, the High Court observed, in the context of jury warnings relating to uncorroborated confession evidence, that “the central thesis of the administration of criminal justice is the entitlement of an accused person to a fair trial according to law” and wherever this is not met there will be a miscarriage of justice: at 478. For High Court discussion on what “unfair” elements arising in a criminal trial would be required to constitute a miscarriage of justice, see Nudd v The Queen (2006) 80 ALJR 614 (particularly the judgment of Gleeson CJ). A Ashworth, “Crime, Community and Creeping Consequentialism” [1996] Criminal Law Review 220 at 228, citing T Tyler, Why People Obey the Law (New Haven: Yale University Press, 1990). See, generally, M Oswald, S Bieneck and J Hupfeld-Heinemann (eds), Social Psychology of Punishment of Crime (Malden: Wiley–Blackwell, 2009) Part I: “Attitudes towards Punishment and Legal Sanctions in a Changing Society”. L Roberts and D Indermaur, What Australians Think About Crime and Justice: Results from the 2007 Survey of Social Attitudes, Australian Institute of Criminology Reports: Research and Public Policy Series 101 (2009) pp 16–18. L Roberts and D Indermaur, What Australians Think About Crime and Justice: Results from the 2007 Survey of Social Attitudes, Australian Institute of Criminology Reports: Research and Public Policy Series 101 (2009) pp 16, 18. L Roberts and D Indermaur, What Australians Think About Crime and Justice: Results from the 2007 Survey of Social Attitudes, Australian Institute of Criminology Reports: Research and Public Policy Series 101 (2009) p 18. [2.85]

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process values such as fairness, while performing important ideological functions, may often be illusory when subjected to closer empirical scrutiny. In lower courts, where most suspects are processed, an “ideology of triviality” pervades summary proceedings. 155 Rather than venerate values of fairness, empirical research has revealed that trial procedures, especially those in lower courts, may operate as ritualised degradation ceremonies, paying scant attention to the ideal that those brought before the court should be presumed innocent, rather than the reverse. 156 This occurs because of the relative invisibility of the summary proceedings, and lack of legal representation for those accused in the lower courts. Though the jury trial occupies a central place in our image of criminal justice, the majority of legal proceedings are summary in nature, presided over by a magistrate sitting without a jury. Indeed, the cherished right to jury trial has been extensively abrogated by legislation—summary proceedings are so pervasive that the symbolic function of the jury now far outweighs its practical significance. The summary jurisdiction has extended significantly in the past 30 years. As we shall explore in Chapter 12 (at [12.70]) although most common theft cases will be determined by a magistrate, the test of dishonesty presumes that relevant community standards will be determined and applied by a jury. The role and impact of judicial instructions on the independence of jury deliberations is further explored at [2.190].

Section 80: an impotent constitutional right to trial by jury? [2.90] No doubt conscious of the trend toward the increasing dominance of summary justice in the late 19th century, the drafters of the Commonwealth Constitution included the following guarantee in s 80: “The trial on indictment of any offence against any law of the Commonwealth shall be by jury”. Notwithstanding a powerful dissenting judgment by Deane J, it appears that the High Court has affirmed that s 80 has procedural rather than substantive effect, leaving the legislature completely free to determine whether crimes should be “deemed” summary and thus tried without a jury. 157 In cases where the Commonwealth Parliament has specified trial on indictment, the High Court has held that there are some essential features of a trial by jury for the process to comply with s 80. These include a jury which is randomly and impartially selected; 158 representative of the community; not being selected on the basis of gender or property qualifications; 159 and independent of outside influence. 160 There is also a political dimension to the s 80 jurisprudence. 161 He argues that s 80 cases considered by the High Court, with only one exception, have either not had to consider issues regarding the justice of sentences under review (because the cases dealt with defendants tried on indictment or who pleaded guilty, rather than with defendants who were tried summarily and then argued that they 155 156

157

158 159 160

161

D McBarnet, Conviction: Law, The State and the Construction of Justice (London: MacMillan, 1981) especially Chs 7 and 8. K Laster, Law as Culture (2nd ed, Sydney: Federation Press, 2001) pp 294–295; M Feeley, The Process is the Punishment (New York: Sage, 1979). On the positive use of shame to reintegrate rather than stigmatise offenders, see J Braithwaite, Crime, Shame and Reintegration (Cambridge: Cambridge University Press, 1989). Kingswell v The Queen (1985) 159 CLR 264. See D Brown, “Lionel Murphy and the Criminal Law” in M Coper and G Williams (eds), Justice Lionel Murphy: Influential or Merely Prescient? (Sydney: Federation Press, 1997) pp 85–89, for Murphy J’s contribution to the debate; G Williams, Human Rights Under the Australian Constitution (Melbourne: Oxford University Press, 1999) pp 36–37, 103–110, for commentary on this issue generally. Chee Ming Ng v The Queen (2003) 197 ALR 10; Cheatle v The Queen (1993) 177 CLR 541. Brownlee v The Queen (2001) 207 CLR 278. Brownlee v The Queen (2001) 207 CLR 278. See further, J Stellios, “Brownlee v The Queen: Method in the Madness” (2001) 2 Federal Law Review 319; “The Constitutional Jury—“A Bulwark of Liberty”?” (2005) 27(1) Sydney Law Review 113; “The High Court’s Recent Encounters with s 80 Jury Trials” (2005) 29 Criminal Law Journal 139. As explored by V Thackeray in “Trial by Jury: A Political Analysis” (2006) 30 Criminal Law Journal 275.

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should have received a trial by jury), or because sentences imposed in those cases were within jury trial benchmark limits, as set out by the relevant legislation. 162 The exception was Zarb v Kennedy, 163 a case that dealt with the summary convictions of two years’ mandatory imprisonment for those who failed to comply with draft notices under the National Service Act 1968 (Cth). Thackeray argues that the High Court would not have considered the sentence imposed on the defendants unjust, as there were public policy objectives that were relevant to encouraging draftees to fight in Vietnam, as well as an awareness on the High Court’s part that “the punishment by the defendant was not very different to the treatment that would have been suffered by a person who complied with a call-up notice, as a draft offender and a national serviceman were both deprived of their liberty for two years”. 164 Thackeray then notes judicial dicta from both the High Court and Federal Court (in majority judgments, no less) that, if an appropriate case was before them, the wide remit the legislature currently has for bypassing s 80 would be subject to judicial re-consideration. 165

Even in superior courts, where the rhetorical assurances of fair treatment are strongest, Doreen McBarnet concludes that the rhetoric of legality and fairness rarely stands in the way of conviction: “If we bring due process down from the dizzy heights of abstraction and subject it to empirical scrutiny, the conclusion must be that due process is for crime control”. 166 Her point is not that the police, prosecutors and judges collude in deviating from legality and fairness, but rather that the law itself licenses this deviation. Judicial rhetoric venerates fairness and legality in the administration of criminal justice, while systematically denying them in the specific application of rules, discretions and remedies: see Chapter 1, [1.130]. The challenge for critical scholars has not only been to expose the dichotomy between rhetoric and reality, but also to engage in the radical reconstruction and expansion of the principle of fairness. Classification of offences and criminal proceedings

Felony versus misdemeanour [2.95] Historically, the distinction between felonies and misdemeanours developed in the

English common law to distinguish between the type of punishment to be applied. Felonies were capital crimes. The effect of passing a sentence of death (whether or not commuted to transportation or imprisonment) was “attainder”. Attainder (which means “to blacken” in Latin and is probably the source of the phrase “convict taint”) resulted in convicted felons losing all civil rights, including the right to hold property and institute legal proceedings. The felon suffered a form of “legal death” and the property of felons was therefore forfeited to the Crown. Misdemeanours were less serious offences that did not result in civil incapacitation or forfeiture, but were punishable by imprisonment or fine. Following the statutory relaxation of attainder in relation to the forfeiture of property in the late 19th century, and the subsequent demise of capital punishment generally, the distinction lost much of its practical significance. These reforms did not address the continuing legal incapacity of persons convicted of a capital felony to bring civil actions. Although attainder was rarely invoked after the 19th century, in 1979 the High Court in Dugan v Mirror Newspapers Ltd confirmed that the English doctrine, though archaic, had 162 163 164 165 166

V Thackeray in “Trial by Jury: A Political Analysis” (2006) 30 Criminal Law Journal 275 at 280–284. (1968) 121 CLR 283. V Thackeray, “Trial by Jury: A Political Analysis” (2006) 30 Criminal Law Journal 275 at 284. V Thackeray, “Trial by Jury: A Political Analysis” (2006) 30 Criminal Law Journal 275 at 284–287. D McBarnett, Conviction: Law, the State and the Construction of Justice (London: MacMillan, 1981) pp 155–156. [2.95]

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been received into New South Wales in 1828. 167 However, since the doctrine had not been abolished by statute, a person convicted of a capital felony could not bring proceedings in defamation. This anomaly was quickly remedied by legislation in jurisdictions retaining the distinction: for example, Felons (Civil Proceedings) Act 1981 (NSW). It should be noted that the forfeiture of property, pre-trial as well as post-conviction, has been revived by special legislative provisions relating to the confiscation of proceeds of crimes. For further discussion of these measures in the context of drug trafficking, see Chapter 14, [14.195]-[14.200].

Historical perspectives On the Convict Taint [2.100] In early colonial New South Wales, the full force of the doctrine of attainder was

not applied. To establish order and respect for legality, the courts ignored the doctrine and allowed civil proceedings to be instituted by and on behalf of convicted felons. In 1788, the first civil case was instituted by Henry and Susannah Kable (both convicted felons) to recover compensation for goods “lost” during their transportation. 168 Felons could seek to restore themselves civilly through a royal pardon granted by the Governor. However, as Greg Woods notes the practice was complex and had not been properly perfected in New South Wales. In 1819, litigation in England revealed that such colonial pardons were legally ineffective, and that transportees who had acquired property or entered into contracts could not sue to protect their interests. 169 This formal legal incapacity could be partially circumvented by rehabilitated felons using agents, including their wives, to hold property and enter into contracts on their behalf. The distinction between the terms “felony” and “misdemeanour” has been specifically abolished in the Australian Capital Territory, New South Wales, South Australia, and Victoria. 170 The Commonwealth never introduced the distinction, simply dividing crimes into indictable or summary offences. 171 In the Commonwealth, Australian Capital Territory, Tasmania and Victoria, crimes are referred to simply as “indictable offences” and “summary offences”. The Code States abolished the common law classifications and, with them, the doctrine of attainder. The Codes simply divide offences into categories: crimes, misdemeanours

167

168

169 170 171

Dugan v Mirror Newspapers Ltd (1979) 142 CLR 583. Gibbs J noted (at 589) that, in the early colonial period, the doctrine had been largely evaded in practice by judges requiring proof of conviction and sentence from England. For a discussion of the legal fictions resorted to overcome the civil disabilities attached to attainder see I Holloway, S Bronitt and J Williams, “Rhetoric, Reason and the Rule of Law in Early Colonial New South Wales” in H Foster, B Berger and AR Buck (eds), The Grand Experiment: Law & Legal Culture in British Settler Societies (Vancouver: University of British Columbia Press, 2008). For a discussion of the relative civil freedom of convicts in Australia, see D Neal, The Rule of Law in a Penal Colony (Cambridge: Cambridge University Press, 1991) Ch 1; B Kercher, The Unruly Child: A History of Law in Australia (Sydney: Allen and Unwin, 1995) Ch 2; Debt, Seduction and other Disasters: The Birth of Civil Law in Convict New South Wales (Sydney: Federation Press, 1996) Ch 3; I Holloway, S Bronitt and J Williams, “Rhetoric, Reason and the Rule of Law in Early Colonial New South Wales” in H Foster, B Berger and A Buck (eds), The Grand Experiment: Law and Legal Culture in British Settler Societies (Vancouver: University of British Columbia Press, 2008) Ch 4. GD Woods, A History of Criminal Law in New South Wales (Sydney: Federation Press, 2002) p 100. Crimes Act 1900 (ACT), s 9; Crimes Act 1900 (NSW), s 580E; Criminal Law Consolidation Act 1935 (SA), s 5D; Crimes Act 1958 (Vic), s 322B(1). Crimes Act 1914 (Cth), ss 4G – 4H.

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and simple offences (and regulatory offences in Western Australia). 172 The distinctions are relevant to determining the mode of trial (indictable/summary). The division of indictable offences into “crimes” and “misdemeanours” in the Northern Territory, Queensland and Western Australia make for complexities in terminology when reviewing Australian criminal law. Since this book will be concerned predominantly with the law relating to indictable offences, we will refrain from further dividing indictable offences into felonies or crimes, as opposed to misdemeanours, and will simply use the generic term “offences”. In modern criminal law, the classification of offences is most significant for determining the mode of trial used to adjudicate guilt. Crimes are conventionally divided into the following classes: • offences triable on indictment before a jury, known as “indictable offences”; • offences triable summarily before a magistrate, known as “summary offences”; • offences triable either way, known as “hybrid offences”. Typically, indictable offences are determined before a judge and jury, and so are usually reserved for more serious offences. Summary offences require trial before a magistrate, who sits as both the tribunal of law and fact. There are also “hybrid offences”, where the accused in an indictable matter may elect to be tried before a single judge sitting without a jury. For example, in New South Wales, both the accused person and the prosecutor may apply for trial by judge alone. 173 There are also indictable offences, scheduled under the NSW Act, that must be dealt with summarily unless the prosecution elects to proceed by way of indictment. 174 There is also another type of hybrid offence: the summary offence that may be heard by a Supreme Court judge sitting without a jury. In New South Wales, s 475B of the Crimes Act 1900 (NSW) has been introduced to deal with complex “white collar” crimes. Commercial fraud trials can be extremely complex (arguably too complex for a jury) and may take many months. This section provides a quicker procedure for dealing with such cases. However, s 475B clearly indicates that it is only the accused who can elect for this type of trial. Table 1 Types of offences and terminology Jurisdiction Cth ACT NSW NT Qld SA Tas Vic WA

172 173

174

Offences triable by judge and jury (most serious) indictable indictable serious indictable crime crime indictable indictable indictable crime

Offences triable by judge and jury (less serious) indictable indictable minor indictable crime misdemeanour indictable indictable indictable misdemeanour

Offences triable by magistrate summary summary summary simple or regulatory simple or regulatory summary summary summary simple

Criminal Code (NT), s 3; Criminal Code (Qld), s 3; Criminal Code (Tas), s 5; Criminal Code (WA), s 3. Criminal Procedure Act 1986 (NSW), s 132. Trial by judge alone is available where the accused person and prosecutor agree: s 132(2). Trial by judge alone cannot be compelled where the accused person refuses to agree: s 132(3). In cases where the prosecution refuses to agree, trial by judge alone may be ordered where the court considers it to be in the “interests of justice”: s 132(4). Criminal Procedure Act 1986 (NSW), Sch 1, ss 258 – 273. [2.100]

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Indictable versus summary offences [2.105] Indictable offences take their name from the indictment, which is a written document

prepared on behalf of the Crown (commonly the Director of Public Prosecutions). Hence, cases are listed as R v Smith (“R” representing either “Regina”, during the reign of a Queen, or “Rex”, during the reign of a King). Originally, the bill of indictment was laid before a “grand jury”, numbering between 17 and 23 men, who had to decide whether the bill was “true”; that is, whether there was a case for the accused to answer. If it was true, the case would then proceed to trial by a “petty jury” consisting of 12 men. In early colonial Australia, the summary trial without jury was established as the norm. There was a brief period between 1824 and 1828, which Greg Woods describes as the “Forbes experiment” where trial by jury (including the use of a grand jury) was introduced for Quarter Sessions by Francis Forbes, the first Chief Justice of New South Wales. Paradoxically, at this time, more serious matters heard before the Supreme Court continued to be tried before a military panel of seven. This grand jury operated as a powerful investigative body, exposing the unlawful punishments meted out by magistrates to convicts in 1825. The experiment was short-lived, terminated by imperial legislation. 175

The grand jury Downunder [2.110] The rarity of the trial is a reflection of the ubiquity of the guilty plea. The grand jury was abolished in England and most of its colonies during the 19th century, as noted above, with the role of laying an indictment ceded to professional Crown Prosecutors and, later, Directors of Public Prosecutions. Its preservation by statute in Victoria was unique in Australia: see Application by Brian William Shaw. 176 This case was a rare attempt by some concerned citizens to seek the convening of a grand jury to investigate alleged illegal activities of the Freemasons. Freemasonry is a secret order, founded in 18th century England, which is devoted ostensibly to charitable causes, but remains the source of many conspiracy theories. The court exercised its discretion to refuse to convene a grand jury, rejecting the applicants’ claim that the Freemasons were an unlawful association committing offences under the Crimes Act 1958 (Vic). The grand jury has since been abolished in Victoria by the Criminal Procedure Act 2009 (Vic), s 253.

The overwhelming majority of criminal matters are initiated by way of a summons (hence “summary offences”): Chapter 1, [1.135]. As a result, most proceedings in Australia are conducted before a magistrate sitting without a jury. Rather than the norm, indictable matters heard before a jury may be viewed as exceptional. As a creation of statute, the summary procedure only applies where stipulated by legislation. The Act creating the offence must expressly state that the crime is a summary offence or that the offence must be tried by a magistrate. Whilst indictable offences are prosecuted on behalf of the Crown, in summary matters the proceedings are initiated by an informant, that is, the person who lays the information before the magistrate. The informant can be anyone, but is usually the arresting officer or the officer responsible for conducting prosecutions in that police station.

175 176

See GD Woods, A History of Criminal Law in New South Wales (Sydney: Federation Press, 2002) pp 56–61. Application by Brian William Shaw (2001) 4 VR 103 at [1].

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Historical perspectives Trial by Jury in Australia [2.115] Trial by jury was originally considered impractical within a society comprised largely of felons, and was only gradually introduced in the mid-19th century as a result of a concerted political campaign by Emancipists. 177 For all the rhetoric and hyperbole surrounding the advent of the jury trial in the Supreme Court of New South Wales in 1830, Blackstone’s “palladium of liberty” played more like a colonial farce. The first civil jury was empanelled in the Supreme Court for an action of trespass arising from a malicious prosecution in Hall v Rossi. 178 The conclusion of the first Supreme Court jury trial was marked, somewhat comically, with a stern judicial admonishment to members of the jury for passing notes to each other during the trial. The judge read out some of the jurors’ notes, which ridiculed the proceedings, and included the following statements: “The great proverb writer has informed the world that there is nothing new under the sun. Had he seen the contents of this jury-box yesterday, and knew that the persons therein were sitting in judgment on the properties of others, even he would have acknowledged himself in error. Of all humbugs in this humbugging world, the most detestable is to sit for hours in a blackguard Botany Bay jury-box, on the same seats that have been polluted by the canaille (Anglice) Mancipists, listening to the prosing blunders of a superannuated old wig. What is there surprising in seeing such worthies here? They still labour in their vocation. Formerly pockets were picked by them, contrary to law. The Legislature has taken pity on them, and now permits some of the most skilful (and on that account the most wealthy), to follow their favourite pursuits, under cover of the law. Folks shake hands with you here, the very speaking to whom in the street, at home, would insure one’s being disinherited.”

The judge, Mr Justice Dowling, was sufficiently moved to call for the Attorney-General to consider the matter for prosecution. It was an inauspicious start to the long-championed right to trial by one’s peers in Australia. For minor matters, the summary procedure is often justified for its efficiency. Although the accused loses the right to a trial by jury, there are some advantages associated with summary proceedings. First, it provides for a speedier trial, as Blackstone, writing in the 18th century, noted: “There is no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such person as the statute has appointed for his judge. An institution designed professedly for the greater ease of the subject, by doing him speedy justice.” 179

Secondly, summary offences place limits on the powers of the judicial officer, limiting the range of penalties available to the court. The modern trend is firmly in favour of expanding

177 178 179

D Neal, The Rule of Law in a Penal Colony (Cambridge: Cambridge University Press, 1991) Ch 7; GD Woods, A History of Criminal Law in New South Wales (Sydney: Federation Press, 2002) Ch 6. Hall v Rossi [1830] NSWSC 16 (15 March 1830). W Blackstone, Commentaries on the Laws of England (1765) Book IV, p 280. As legal historian Bill Cornish has pointed out, the rise of summary justice stemmed from the desire to deal with local offenders engaging in less serious crime more efficiently and effectively, avoiding the lengthy detention of prisoners on remand pending trial, where they would experience “evils of idleness and contamination of bad association”: W Cornish et al, The Oxford History of the Laws of England (Oxford: Oxford University Press, 2010) vol 8, p 115. [2.115]

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summary jurisdiction and the range of sentencing powers of magistrates. 180 For a discussion on the importance of efficiency and economic models of criminal justice, see Chapter 1, [1.120]ff, “Theories of criminal justice”. Criminal proceedings may be commenced by way of a summons, as an alternative to arrest. A summons is a notice served on the accused by a court official instructing the accused to appear before the court on a particular date. The courts have construed the power to arrest or proceed by way of summons in a manner that provides maximum protection to individual liberty. 181 The use of infringement notices, as another way of disposing of criminal matters without trial, has been explored in Chapter 1, [1.160]. Magistrates also played an important role in relation to indictable matters. From the 16th century in England, magistrates had conducted committals in which they interrogated witnesses and suspects for the purpose of reducing oral testimony to writing, which could then be used by the grand and petty juries. Essentially performing an investigative function, magistrates did not consider themselves empowered to discharge cases for lack of evidence—at best, they might grant bail in such cases. The power to discharge the accused was expressly conferred by statute through the adoption of the English Jervis Act in 1850. The committal evolved gradually from an investigative process into an impartial preliminary hearing to evaluate the strength of the prosecution case and determine whether there is a reasonable prospect that a jury, properly instructed, would be likely to convict. 182 It has been claimed that the function of the modern committal is to operate as a procedural filter, with the objectives of: (1)

eliminating weak cases;

(2)

disclosing the prosecution case;

(3)

identifying guilty pleas early in the prosecution process;

(4)

rehearsing the case and clarifying the issues; and

(5) providing a public venue for the testing of the prosecution case. 183 Empirical research, however, suggests that very few committals result in discharge. In one study conducted, only 7.6% of cases were discharged at the committal. 184 Indeed, the reviewing power of the magistrate through the committal is further undermined by the power of the DPP to lay an “ex officio” indictment in cases where there has been no committal, though this is rarely done. 185 It has been held that the power to lay an ex officio indictment is

180 181 182

183

184

185

P Darbyshire, “An Essay on the Importance and Neglect of the Magistracy” [1997] Criminal Law Review 627. See, for example, Williams v The Queen (1986) 161 CLR 278 and Grassby v The Queen (1989) 168 CLR 1 at 9–10 per Dawson J. Criminal Procedure Act 1986 (NSW), s 64. For a historical review of these changes in the roles of the magistracy see GD Woods, A History of Criminal Law in New South Wales (Sydney: Federation Press, 2002) pp 173–177. These objectives are drawn from P Salmelainen, “Understanding Committal Hearings” (1992) 18 Crime and Justice Bulletin 2 and M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, Melbourne: Oxford University Press, 2014) pp 130–131. P Salmelainen, “Understanding Committal Hearings” (1992) 18 Crime and Justice Bulletin 2. See also the national study by the Australian Institute of Criminology: by D Brereton and J Willis, “Evaluating the Committal” In J Vernon (ed), The Future of Committals (Canberra: Australian Institute of Criminology, 1990) Proceedings of a Conference held 1–2 May 1990. For example, Criminal Procedure Act 1986 (NSW), s 8(2).

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not amenable to judicial review. 186 Rather than view the committal as merely a rubberstamping exercise for the prosecution, a less sceptical explanation of the very low rate of discharge is that the committal stage has a disciplinary effect on both investigators and prosecutors, leading to the more careful selection and preparation of cases. The second function of the committal is that it allows the accused to be informed of the prosecution’s case and the evidence that will be called at trial. Pre-trial disclosure helps the defence prepare its case, though the extent to which the fair trial principle imposes a duty of disclosure on police and prosecutors is murky. In practice, the duties of disclosure are now regulated by prosecution policies and guidelines. 187 While civil pleadings and discovery procedures are not features of criminal trials, there are increasing moves, in the name of efficiency, to impose formal pre-trial disclosure obligations on both the prosecution and the defence. These obligations are typically imposed by prosecution guidelines or practice statements issued by the courts, though in some jurisdictions these duties of disclosure have been formalised in legislation. The stated purpose of pre-trial disclosure is to reduce delays in complex criminal trials. To promote litigation efficiency, these legislative regimes cast obligations on the accused to disclose the nature of the defence before trial. In both systems, failure to comply with the procedures may lead to exclusion of evidence or adverse comment to the jury about the failure to comply. Similar non-legislative schemes, based on voluntary defence disclosure, have been adopted under the rubric of “case management” in many jurisdictions. 188 This has raised concerns about the negative impact of these efficiency reforms on the right to a fair trial; in particular, the extent to which they threaten the presumption of innocence by requiring the accused to furnish evidence of his or her own guilt. 189 Others have argued that the reforms enacted in Victoria are measured and justifiable responses for promoting efficiency, and do not abrogate fundamental principles of criminal justice. 190

186

187

188

189

190

Barton v The Queen (1980) 147 CLR 75. For a fuller discussion on the rules governing the institution of criminal proceedings, see Chapter 2 of C Cato, The Law and Practice of Criminal Litigation (Sydney: LBC Information Services, 1998). Lawless v The Queen (1979) 142 CLR 659. In the 1990s, the DPPs in Australia worked together to promote more national consistency in prosecution practices and policies. The various federal, State and Territory DPP policies and guidelines set out a range of powers and responsibilities of prosecutors, including duties of disclosure before and during the trial: see, for example, Commonwealth Director of Public Prosecutions, Prosecution Policy of the Commonwealth: Guidelines for the Making of Decision in the Prosecution Process (nd) and Disclosure Statement (nd) at www.cdpp.gov.au/partner-agencies/disclosure-statement (cited 6 June 2016); Guideline 18, Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales (nd) at http://www.odpp.nsw.gov.au/prosecution-guidelines (cited 1 February 2017). These are reviewed in R Refshauge, “Frankenstein’s Monster—Creating a Criminal Justice System for the 21st Century” (2000) 9(4) Journal of Judicial Administration 185. M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, Melbourne: Oxford University Press, 2014), pp 131–133. S Bronitt and M Ayers, “Criminal Law and Human Rights” in D Kinley (ed), Human Rights in Australian Law (Sydney: Federation Press, 1998), pp 130–132; see also M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, Melbourne: Oxford University Press, 2014), pp 133–136 discussing the reforms in Victoria and New South Wales. G Flatman and M Bagaric, “Accused Disclosure—Measured Response or Abrogation of the Presumption of Innocence” (1999) 23 Criminal Law Journal 327. [2.115]

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Plea-bargaining in the shadow of the criminal law [2.120] The rarity of the trial is a reflection of the ubiquity of the guilty plea, which often follows discussion between the lawyers working for the prosecution and the defence. 191 Charge negotiation, or charge-bargaining, better describes the common practice involving negotiations between the defence and the prosecution in relation to the charges which will proceed to hearing. As a result of these negotiations, an accused may opt to plead guilty to fewer charges than initially laid, or to a lesser charge(s) in return for the prosecution offering no evidence on the remaining charges. The pressures and incentive to plead to fewer or lesser charges can lead to injustices from both a victim and defence perspective, though DPP guidelines and policies are aimed at ensuring that the prosecution achieves a charge agreement that not only procures a guilty plea but adequately represents the criminality revealed by the facts. 192 The term “plea bargaining”, which is widely used in the US, has been described as misleading in the Australian context, since our judges do not participate in negotiations over penalties, approving deals where the defence pleads guilty in exchange for an agreed lesser sentence. This antipathy toward bargaining over penalties in criminal trials is apparent in Barbaro v The Queen; Zirilli v The Queen 193 where the High Court held that it is inconsistent with the nature of criminal sentencing proceedings for a sentencing judge to receive a submission from the Crown as to the appropriate sentence or even as to the available range of sentences. The responsibility for determining sentence must be, and be seen to be, as a matter for the judge alone. The majority identified three propositions that should guide sentencing: “First, it is for the prosecution, alone, to decide what charges are to be preferred against an accused person. Second, it is for the accused person, alone, to decide whether to plead guilty to the charges preferred. That decision cannot be made with any foreknowledge of what sentence will be imposed. Neither the prosecution nor the offender’s advisers can do anything more than proffer an opinion as to what might reasonably be expected to happen. Third, and of most immediate importance in these applications, it is for the sentencing judge, alone, to decide what sentence will be imposed.” 194 The position in relation to negotiation of civil penalties is different, and the High Court has held that the limitations in Barbaro do not apply in those circumstances; as the proceedings were civil, and the penalty did not follow from a conviction, there was much wider scope for the parties to agree upon facts and appropriate settlement of the dispute, including the level of penalty to be paid: Commonwealth v Director, Fair Work Building Industry Inspectorate. 195

The right to a fair trial: Dietrich v The Queen [2.125] Although the fair trial principle is claimed to be fundamental and universal—indeed,

a basic human right protected by international law—its scope and effect are legally circumscribed in a number of ways. The judicial duty is not to ensure fairness in the criminal process, but rather to prevent the accused being subjected to an unfair trial and the risk of wrongful conviction. Limiting the duty in this way means that judges do not have the responsibility of ensuring fairness during investigation. That said, what happens before a trial 191

192

193 194 195

For an early survey of plea-bargaining which combines empirical research and discussion of reform, see K Mack and S Anleu, “Reform of Pre-Trial Criminal Procedure: Guilty Pleas” (1998) 22 Criminal Law Journal 263. See also J Bishop, Prosecution without Trial (Sydney: Butterworths, 1989). N Cowdery, The DPP’s Decision to Prosecute, NSW Bar Association Bar Practice Course (2007). For the full text of the Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales (2007) see http://www.odpp.nsw.gov.au/prosecution-guidelines (cited January 2017). [2014] HCA 2. Zirilli v The Queen [2014] HCA 2 at [47]. [2015] HCA 46.

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may hamper the ability of the court to conduct a fair trial. For example, serious pre-trial delay may have a negative impact on the ability of accused persons to conduct their defence as established in the High Court decision of Jago v District Court (NSW). 196 In this “indirect” way, procedural and evidential rules for ensuring fairness during the trial impinge on pre-trial methods of investigation and prosecution decision-making. 197 As Lord Scarman has observed in R v Sang: “The judge’s control of the criminal process begins and ends with the trial, though his influence may extend beyond its beginning and conclusion”. 198

The Right to A Fair Trial: Justice is Blind but Never Asleep … Cesan v The Queen; Mas Rivadavia v The Queen 199 [2.130] The issue has arisen whether the right to a fair trial may be infringed by the fact that

the trial judge had been asleep during parts of the trial. The High Court in Cesan v The Queen; Mas Rivadavia v The Queen quashed a conviction for drug trafficking and ordered a retrial on the ground that the trial had been compromised where the trial judge had been asleep during significant parts of the trial. [The trial judge was later diagnosed as suffering from severe obstructive sleep apnoea and subsequently retired on the grounds of permanent disability]. The High Court rejected the approach of the New South Wales Court of Criminal Appeal that had considered whether the accused had been disadvantaged as a result. Rather, the High Court held that there had been a miscarriage of justice arising because the trial judge did not exercise that degree of supervision of the proceedings which would ensure, so far as reasonably practicable, that the jury paid attention to all of the evidence as it was given. French CJ agreed that there was a miscarriage of justice “… constituted by the judge’s substantial failure to maintain the necessary supervision and control of the trial. Further, his conduct created a distraction during the trial process. In particular it distracted the jury and led at least some of the members of the jury to regard the judge with amusement.” 200 The Court declined to consider the argument that the impaired consciousness of the judge had prejudiced the right to jury a trial under s 80 of the Constitution, deciding the case instead according to the ordinary principles of the common law of Australia and the miscarriage provisions under the relevant state legislation. Further practical limitations to the fair trial principle emerge when it is applied to specific contexts. The judicial rhetoric of fairness shifts from one of “universal absolutes” to a “fundamental principle subject to reasonable qualifications”. As we shall explore below, the fair trial principle is dependent on the gravity of the offence. For example, in Dietrich v The Queen 201 the majority of the High Court held that the lack of legal representation for an accused charged with a “serious crime” may result in an unfair trial. While the High Court did not hold that the right to a fair trial was inapplicable to proceedings for minor crimes (this was 196 197

198 199 200 201

Jago v District Court (NSW) (1989) 168 CLR 23. The impact of law on investigative practices is often overstated. Australian research reveals that many leading High Court decisions that had an impact on investigative powers were not communicated to the police or were misconstrued: D Dixon, Law in Policing: Legal Regulation and Police Practices (Oxford: Oxford University Press, 1997) p 205. R v Sang [1980] AC 402 at 455. Cesan v The Queen; Mas Rivadavia v The Queen (2008) 236 CLR 358. Cesan v The Queen; Mas Rivadavia v The Queen (2008) 236 CLR 358 at [64]. Dietrich v The Queen (1992) 177 CLR 292. [2.130]

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not the question being litigated), there is some indication that the standards of fairness are not truly universal or absolute. 202 Indeed, the right to a fair trial may be viewed as a right to a trial that is reasonably fair in the circumstances. Like the notion of “perfect justice”, the fair trial is a normative ideal which judges should strive to achieve. As Brennan J pointed out in Jago v District Court (NSW): “If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness.” 203

There are clearly constitutional limits on the judicial obligation to ensure a fair trial. The courts cannot address the resource implications of the fair trial principle, such as the availability and allocation of resources for legal aid. The separation of the spheres of governmental responsibility—judicial, executive and legislative—reinforces judicial independence and authority. The doctrine of separation of powers places the law above and beyond politics. However, the constitutional confinement of judicial responsibility for the fair trial effectively sequesters the courts from the wider political contexts of the administration of criminal justice. Yet, fairness within the criminal process is not solely a judicial or even legal responsibility. It is a responsibility that should be shared between judicial, political and social institutions. Indeed, this is consistent with the position under the International Covenant on Civil and Political Rights (ICCPR), which imposes enforceable obligations in relation to the fair trial on all organs of state, including the legislature, executive and judiciary. 204 There is considerable indeterminacy surrounding many aspects of the principle of fairness. Many fundamental questions remain unresolved, including: • What is a “fair” trial? • How far does the fair trial principle extend? • Does the principle apply pre-trial to preliminary hearings or committals? • Does the principle apply to the methods of gathering evidence? • If the fair trial principle confers legal rights and duties, what remedies are available for breach? • Does the inherent judicial power to halt or stay legal proceedings apply where the unfairness to the accused is caused or sanctioned by statute? • Does the Commonwealth Constitution contain an implied right to a fair trial, and does this extend to State as well as federal proceedings? 205 202

203

204 205

120

Not everyone accepts the rationing of the right to only serious charges. As Stephen Odgers noted, “it is difficult to understand what the nature of the potential sentence has to do with the fairness of the trial”: (1993) 17 Criminal Law Journal 102. Jago v District Court (NSW) (1989) 168 CLR 23 at 49 (emphasis added). This dicta was approved in Dietrich v The Queen (1992) 177 CLR 292 at 345 per Dawson J. Gaudron J similarly noted: “A trial is not necessarily unfair because it is less than perfect” at 365. See Art 2(2) of the International Covenant on Civil and Political Rights, as clarified by the United Nations Human Rights Committee General Comment, Nos 2 and 3, 36 UN GAOR, Supp No 40 (a/36/40) Annex VII. Discussion of these issues is beyond the scope of this chapter. On the constitutional developments, see J Hope, “A Constitutional Right to A Fair Trial? Implications for the Reform of the Australian Criminal Justice System” (1996) 24 Federal Law Review 173 at 181–189 and F Wheeler, “The Doctrine of Separation of Powers and Constitutionally Entrenched Due Process in Australia” (1997) 23(2) Monash University Law Review 248. For a comparative Australian and English perspective on the “principle of a fair trial”, as well as discussion on the impact of the fair trial principle on procedural and evidentiary matters in Australian law, see J Spigelman, “The Truth Can Cost Too Much: The Principle of a Fair Trial” (2004) 78(1) Australian Law Journal 29. [2.130]

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At its core, the definition of “fairness” in the fair trial principle proves to be elusive. As Deane J observed in Jago v District Court (NSW) the general concept of fairness “defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one”. 206 The categories of unfairness were not closed. In Dietrich v The Queen, 207 members of the High Court acknowledged that the right to a fair trial under the common law, by its nature, is an evolving concept incapable of exhaustive definition. Acknowledging its contingency, Gaudron J observed that: “What is fair very often depends on the circumstances of the particular case. Moreover, notions of fairness are inevitably bound up with prevailing social values … And, just as what might be fair in one case might be unfair in another, so too what is considered fair at one time may, quite properly, be adjudged unfair at another.” 208

While the fair trial concept in domestic law remains narrowly circumscribed, there are signs that the principle under international law is evolving into a fundamental value that extends throughout the criminal process. This is evident in a decision of the European Court of Human Rights, Teixeira de Castro v Portugal, 209 which held that evidence obtained by deliberate police entrapment violated the right to a fair trial under Art 6 of the European Convention on Human Rights. The court affirmed that the guarantee of fairness is not limited to legal proceedings, but underpins the whole course of the criminal process including the way in which evidence was taken. 210 The judicial discretion to exclude evidence gathered by entrapment in Australia, which is based on public policy considerations rather than fairness, is further discussed in Chapter 14. There is potential to further extend the concept of the fair trial under the common law into the pre-trial phase. As Mason CJ observed in Jago v District Court (NSW): “There is no reason why the right should not extend to the whole course of the criminal process.” 211 The role of international human rights law on the development of the right to a fair trial and its remedies is further explored below.

Feminist perspectives The Fair Trial Principle: A Flawed Balance? [2.135] Normative disagreement over the fair trial principle is related not only to

structural issues, such as its scope and possible remedies. More fundamentally, feminists have raised concerns that the concept of fairness that underlies the adversarial system is 206 207 208 209 210

211

Jago v District Court (NSW) (1989) 168 CLR 23 at 57. Dietrich v The Queen (1992) 177 CLR 292 at 300 and 353. Dietrich v The Queen (1992) 177 CLR 292 at 364. Teixeira de Castro v Portugal (9 June 1998) Reports of Judgments and Decisions 1998-IV. Teixeira de Castro v Portugal (9 June 1998) Reports of Judgments and Decisions 1998-IV, [34], citing Van Mechlen v The Netherlands (23 April 1997) Reports of Judgments and Decisions 1997-III, p 711, §50. This approach has been incorporated into English law and has the potential to influence the future development of Australian law: see S Bronitt, “The Law in Undercover Policing: A Comparative Study of Entrapment and Covert Interviewing in Australia, Canada and Europe” (2004) 33(1) Common Law World Review 35; C Harfield, “The Governance of Covert Investigation” (2010) 34(3) Melbourne University Law Review 773; B Murphy, “Retrospective on Ridgeway: Governing Principles of Controlled Operations Law” (2014) 38 Criminal Law Journal 38. Jago v District Court (NSW) (1989) 168 CLR 23 at 29. A similar point was made in X7 v Australian Crime Commission & Anor (2013) 248 CLR 92 at 116 (French CJ and Crennan J) [2.135]

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constrained by its traditional “binary” or “bipolar” construction. 212 That is, the state’s interests are pitted against the individual accused and the judge’s obligation is to maintain a fair balance between these two parties. To ensure that the power and superior resources of the state do not upset this balance, the law develops safeguards against wrongful conviction of the innocent, such as the presumption of innocence and the standard of proof. This image of balancing the interests of the state and the accused is reinforced in popular culture and legal iconography. As Patricia Easteal has pointed out: “Another striking flaw in the portrayal of justice is that the scales [of justice] are held by a woman, the goddess Astraea; an ironic use of female imagery since women have and continue to play such a marginal and silent role in the legal system.” 213

The imagery is deficient not only because there are so few female judges, but also because it traditionally excludes victims, their families and the wider community from the scales of justice. 214 In the modern criminal process, it is often said that victims have no special status beyond their position as a potential witness for the prosecution. 215 While there is an increasing commitment at the international level to improving the treatment of victims of crime, 216 prosecutors are not representatives or advocates for victims, nor for the communities affected by crime. The wider interests of the state and victims do not necessarily coincide. This has been evident, for example, in the controversy and subsequent law reform efforts to deal with cases where those accused of rape have sought access to the complainant’s confidential medical and/or counselling records. 217 That said, in the past two decades, victims’ rights movements have played a role in securing reforms addressing this imbalance. Their efforts are evident through the use of victim impact statements during sentencing; the inclusion of victims as participants in restorative justice conferences; and the creation of new statutory positions resourced to assist and represent the interests of victims. Indeed, some criminal justice scholars have argued that even the 212

213 214

215 216

217

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P Easteal, “Beyond Balancing” in P Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998) Ch 14. See, generally, P Easteal, Less than Equal: Women and the Australian Legal System (Sydney: LexisNexis Butterworths, 2001) Ch 1. These attributes also apply to civil procedure: see R Hunter and K Mack, “Exclusion and Silence: Procedure and Evidence” in N Naffine and R Owens (eds), Sexing the Subject of Law (Sydney: LBC Information Services, 1997) Ch 9. P Easteal, Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998) p 205. See United Nations, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA Res 40/34, UN GAOR, 40th Session, Supp No 53, at 213, UN Doc A/40/53 (1985). This has resulted in the widespread adoption of “victims’ charters”, leading to compensation schemes and the introduction of “victim impact statements” at the sentencing stage. C Pollard, “Victims and the Criminal Justice System: A New Vision” [2000] Criminal Law Review 5. Celia Wells argues that despite widespread feminist awareness, evidence continues to demonstrate that a gendered understanding of criminal law and justice has yet to be fully realised: “The Impact of Feminist Thinking on Criminal Law and Justice: Contradiction, Complexity, Conviction and Connection” (2004) Criminal Law Review 503 at 515. A Cossin, “Tipping The Scales in Her Favour: The Need to Protect Counselling Records in Sexual Assault Trials” in P Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998) Ch 7. For a survey comparing approaches in Canada, Australia and the United States, see S Bronitt and B McSherry, “The Use and Abuse of Counselling Records in Sexual Assault Trials: Reconstructing the ’Rape Shield’” (1997) Criminal Law Forum 259. See T Henning and S Bronitt, “Rape Victims on Trial: Regulating the Use and Abuse of Sexual History Evidence” in P Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998) Ch 6. [2.135]

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process of criminalisation itself is increasingly “victim-driven” or “victim-oriented”, as reflected in the adoption of offences related to stalking, hate crime, human trafficking etc. 218 While the principle of equality has provided the basis for the reform of sexual assault laws, the fair trial principle has provided a foundation for challenging such initiatives. Defence counsel have argued that rape trials should be permanently stayed on the ground that “rape shield laws”, which aim to limit humiliating and degrading cross-examination on the complainant’s sexual history, violate the accused’s right to a fair trial. 219 While ultimately unsuccessful in Australia, in the United Kingdom similar arguments have been successful based on Art 6 of the European Convention on Human Rights (ECHR). Invoking the obligation under the Human Rights Act 1998 (UK) to interpret legislation to conform to the ECHR, the House of Lords in R v A has interpreted the rape shield provision in s 43 of the Youth Justice and Criminal Evidence Act 1999 (UK) “as subject to the implied provision that evidence or questioning which is required to ensure a fair trial under Article 6 of the convention should not be treated as inadmissible”. 220 The principle has also been invoked to stay proceedings where the complaint is substantially delayed because the complaint relates to sexual abuse perpetrated on the victim as a child. 221 The traditional adversarial conception of the criminal process in terms of a “battle model”—the state versus the individual—is clearly open to challenge. Feminists have argued for wider use of alternate dispute resolution, such as mediation, claiming that these processes are more “culturally feminine” and better able to accommodate the female subject. 222 This feminine approach to dispute resolution is contrasted with the masculine construction of “justice” in terms of rights, autonomy and impartiality. 223 While mediation offers advantages in terms of contextualising disputes and enabling parties to produce a consensual outcome, it poses the danger (especially vivid in the criminal justice context) of concealing legal wrongs against women from public scrutiny. As Rosemary Hunter and Kathy Mack point out: “The emphasis on privacy and confidentiality [in mediation] can reinforce the law’s construction of sexed harms to women as not suitable for consideration or remedy by formal legal processes.” 224 Thus far, under the rubric of restorative justice, offenders and victims in the criminal context have been brought together to participate in a diversionary option where guilt is 218

219

220 221

222 223

224

L Sebba, “Victim-Driven Criminalisation? Some Recent Trends in the Expansion of the Criminal Law” in B McSherry, A Norrie, and S Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Hart Publishing, Oxford, 2008). See T Henning and S Bronitt, “Rape Victims on Trial: Regulating the Use and Abuse of Sexual History Evidence” in P Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998) Ch 6. R v A [2001] 93 All ER 1 at 18 per Lord Steyn. The prosecution of a doctor for alleged sexual abuse of children patients was stayed on the grounds of the victims’ “inexcusable delay”: Geoffrey Davis v DPP (SC No 782 of 1994), discussed in P Easteal, “Suppressing the Voices of Survivors: Sexual Exploitation by Health Practitioners” (1998) 33(1) Australian Journal of Social Issues 211 at 222–227. R Graycar and J Morgan, The Hidden Gender of Law (2nd ed, Sydney: Federation Press, 2002) pp 445–446. Carol Gilligan argues that the legal voice—which is implicitly male—is based on logic of justice, whereas the female voice attaches greater value to the “ethic of care”: In A Different Voice (Cambridge, MA: Harvard University Press, 1982), discussed in K Daly, “Criminal Justice Ideologies and Practices in Different Voices: Some Feminist Questions about Justice” in N Lacey (ed), Criminal Justice (Oxford: Oxford University Press, 1994). R Hunter and K Mack, “Exclusion and Silence: Procedure and Evidence” in N Naffine and R Owens (eds), Sexing the Subject of Law (Sydney: LBC, 1997) p 188. [2.135]

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not contested (see Chapter 1, [1.95]). Indeed, feminist concern about power imbalances and lack of transparency has led to some reticence about whether these methods can be applied to family violence. Julie Stubbs argues that the (gendered) dynamics of family violence are inconsistent with a restorative justice approach; that it poses risk to the victim’s safety; and perpetuates the privatisation of family violence. 225 Notwithstanding these concerns, some jurisdictions have extended restorative justice conferences to domestic violence offences. 226 The dichotomy between male and female approaches to dispute resolution has also been challenged at a more fundamental level. Criminologist Kathy Daly has pointed out that the common feminist accusation that “justice” is masculine and therefore incapable of feminine “care” is an over-simplified representation of existing criminal processes. In many areas, such as the discretion to prosecute and the sentencing stage, considerations of “care” do intrude when taking into account the potential negative impact of prosecution or imprisonment on dependent family members. 227 Rather than abandon the adversarial system, there is scope for re-conceptualising the fair trial principle in holistic and inclusive terms. As Gaudron J pointed out in Dietrich v The Queen, the concept of fairness is not immutable and may properly take account of changing social values. 228 The adversarial system is neither undermined nor its “balance” upset by valuing the legitimate interests of victims. Indeed, adjustment to the traditional balance may be essential for achieving “justice”. As Helena Kennedy observed: “Civilised men and women adhere to a social contract requiring them to settle disputes in courtrooms rather than with pistols at dawn. That involves the provision by courts of symbolic retribution, an assuagement for the victims and their families as well as society. But the contract ceases to operate effectively if victims are not dealt with fairly in the courts or defendants cannot be guaranteed a fair trial. There is a constant tension between the needs of those who suffer crime and those who are accused of it, and it is within that tension that justice is defined. There has to be a constant fine tuning to a changing world and a willingness to shed preconceptions.” 229

Under international human rights law, there are signs that the concept of a fair trial is evolving to accommodate the rights of victims and other participants in the criminal process such as witnesses. The European Court of Human Rights has held that, in relation to the needs of preserving the anonymity of witnesses and victims, the fair trial principle in Art 6 of the ECHR is broad enough to encompass the interests of victims and their families. 230 Reconceiving justice in terms of victims’ interests addresses the traditional exclusion of women from the scales of justice, yet victims’ interests cannot be paramount. Kathy Daly has pointed to the dangers of reconstructing criminal law and justice practices exclusively from the standpoint of victims: 225 226 227 228 229 230

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J Stubbs, “Domestic Violence and Women’s Safety: Feminist Challenges to Restorative Justice” in H Strang and J Braithwaite (eds), Restorative Justice and Family Violence (Cambridge: Cambridge University Press, 2002). See Crimes (Restorative Justice) Act 2004 (ACT), s 16 which extends to both young offenders and adults. K Daly, “Criminal Justice Ideologies and Practices in Different Voices: Some Feminist Questions about Justice” in N Lacey (ed), Criminal Justice (Oxford: Oxford University Press, 1994) p 238. Dietrich v The Queen (1992) 177 CLR 292 at 364. H Kennedy, Eve Was Framed—Women and British Justice (London: Vintage Books for Chatto and Windus, 1993) p 12. Doorson v The Netherlands (1996) 22 EHRR 330; Van Mechlen v The Netherlands [1997] HRCD 431, discussed in A Ashworth and M Redmayne, The Criminal Process (4th ed, Oxford: Oxford University Press, 2010) p 49. A report by JUSTICE, a leading non-governmental human rights and law reform organisation, has similarly proposed: “A fundamental principle of criminal justice is that it must show integrity towards both victims and offenders”: Victims in Criminal Justice (London: JUSTICE, 1998) Recommendation 1.2, p 5. [2.135]

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“A victim-centred strategy can easily lead to a feminist law and order stance, and we should be wary of this for several reasons. It can spill over to a more punitive treatment of women defendants, and it can have especially harsh consequences for ethnic minority men.” 231

Feminists understandably express some scepticism toward “rights-based” reformist agendas that draw exclusively from the traditional catalogue of human rights in which political and civil rights are privileged over social and economic ones. 232 The classical liberal freedoms protected by Bills of Rights and to a lesser extent, by the common law, maintain and inscribe boundaries between public and private spheres. This approach offers only limited opportunities for remedying entrenched gender discrimination occurring outside the public sphere. Feminist scholarship has produced both a “critique of rights”, as well as engaging in the reconstruction of concepts—such as equality and privacy—in ways that better protect the interests of women. The public/private dichotomy is explored further in “The public/private dichotomy: malleable and discriminatory”, [2.250]. Gender discrimination is structurally embedded within the substance and procedure of the criminal law. The media has highlighted “unfair” sexist and insensitive judicial comments made during rape trials. Closer scrutiny of these remarks reveal that judicial “gender bias” is often based on established evidential and procedural rules, such as the requirement to give a corroboration warning in sexual cases. 233 An inclusive notion of fairness, that both avoids the pitfalls of “balancing” and accommodates a wider range of interests, could provide a more effective basis for tackling structural discrimination within the criminal process. 234 It could provide the normative principle for challenging and reconstructing discriminatory rules of evidence that unfairly discredit the testimony of women and children in sexual offences cases. One such rule is the requirement in trials involving sexual offences to give mandatory jury warnings that it is dangerous to rely on the uncorroborated testimony of the complainant or that a failure to make a prompt complaint may render the testimony less credible and worthy of belief. 235 The discriminatory basis of these special evidential rules, and reforms over the years, are critically evaluated in Chapter 11 at [11.180]. A more expansive notion of fairness may also support the widening of “legal standing”, facilitating and providing resources for independent legal representation for victims. These developments would provide the first step toward “the generation of ‘feminist procedure’ in these cases—a procedure that would incorporate women’s experiences and knowledge”. 236

231 232 233

234 235

K Daly, “Criminal Justice Ideologies and Practices in Different Voices: Some Feminist Questions about Justice” in N Lacey (ed), Criminal Justice (Oxford: Oxford University Press, 1994) p 240. H Charlesworth, “Taking the Gender of Rights Seriously” in B Galligan and C Sampford (eds), Rethinking Human Rights (Sydney: Federation Press, 1997) Ch 3. See Senate Standing Committee on Legal and Constitutional Affairs, Gender Bias and the Judiciary (1994). This federal inquiry was prompted by publicity given to judicial remarks by Bollen J during a rape trial: see Ch 11, [11.25]. The Committee concluded that the directions were largely sanctioned by law, and that the problem of gender bias was systemic rather than individual: at [18]. P Easteal, “Beyond Balancing” in P Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998), Ch 14. Notwithstanding the statutory abolition or modification of these warnings in most jurisdictions, the judicial practice of offering informal warnings on these dangers of false accusation persist: K Mack, ““You Should Scrutinise Her Evidence With Great Care”: Corroboration of Women’s Testimony About Sexual Assault” in P Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998) Ch 5. [2.135]

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Images of balance pervade debates about the administration of criminal justice. In Chapter 1, we explored Herbert Packer’s influential theory of criminal justice as a balance between the competing models of “crime control” and “due process”: [1.125]. “Balancing” is the act of striving to attain a state of perfect equilibrium between competing interests. Judges, lawyers and law reformers seem constantly to be engaged in “balancing acts”. For example, the Australian Law Reform Commission, in reforming the rules of criminal evidence, concluded that a “critical issue is the way the balance is struck between the prosecution and the defence”. 237 Yet there is increasing scepticism, even within liberal circles, as to whether “balancing” is a useful concept. Andrew Ashworth long ago warned of the dangers of “creeping consequentialism” associated with balancing rhetoric that reduces criminal justice reform to the utilitarian calculus of weighing, trading and trumping competing interests. The rhetoric of balancing obscures and suppresses the rights and interests in conflict, such as the rights of victims and the community. Instead of “balancing”, Ashworth has sketched a “principled approach” to reform which accords maximum respect for rights: “The first step should be to ascertain what the aim of a given part of the criminal process is, and then to ascertain what rights ought to be accorded to suspects, defendants and victims. If there are conflicts, as there often are, then the justifications for the rights and their relative strength must be examined with care. To short circuit this process with bland assertions of ‘balance’ leads to sloppy reasoning.” 238

In more recent work, Ashworth and Redmayne have further developed this rights-based framework for the criminal process, drawing on the European Convention on Human Rights, which has both legal and political salience in the United Kingdom since the enactment of the Human Rights Act 1998 (UK). Though not without its limitations, these authors claim that the rights-based theory provides the best way of accommodating the conflicts of values and interests which occur in the criminal justice system: “[T]he human rights framework has been offered as a way of dealing with those conflicts that has a firmer moral and political foundation than consequentialist theories and has greater integrity and transparency than approaches that simply refer to ‘balancing’. However, two limitations of rights theories must be kept firmly in view—the gap between the law in action and the law in the books, and the political volatility of criminal justice systems.” 239

The significance of the principle of equality before the law for the criminal process is examined in the next section. While sympathetic to the concern that utilitarian balancing invariably means crime control trumps due process, the limitations of a “principled approach” based on rights have been identified above: first, it tends to conceal the inherent contested nature of fundamental legal concepts, and, secondly, it tends to inscribe a narrow set of liberal values as legal values.

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237 238 239

R Hunter and K Mack, “Exclusion and Silence: Procedure and Evidence” in N Naffine and R Owens (eds), Sexing the Subject of Law (Sydney: LBC, 1997) p 192, citing H Koh, “Two Cheers for Feminist Procedure” (1993) 61 University of Cincinnati Law Review 1201 at 1202–1203. Australian Law Reform Commission, Evidence, Report No 38 (1987), p 19, following the “balancing” approach adopted by the Royal Commission into Criminal Procedure (1981) in the United Kingdom. A Ashworth “Crime, Community and Creeping Consequentialism” [1996] Criminal Law Review 220 at 229. A Ashworth and M Redmayne, The Criminal Process (4th ed, Oxford: Oxford University Press, 2010) p 58.

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Terrorism law reform: balancing security and liberty? [2.140] The limitations in the balancing approach are most apparent in the field of legal responses to terrorism. Post-9/11, much of the debate about the expansion of State power to combat terrorism has been framed as striking a balance between security and liberty. 240 Although a pervasive feature of public policy in the field of counter-terrorism, the balancing approach has been subject to significant academic criticism. A common objection is that balancing promotes consequentialism in which the “ends justify the means”, a calculus in which individual interests are sacrificed for community gains. Such consequentialist logic opens the door for justifications for torture and other inhumane practices that currently contravene Australian and international law prohibitions: discussed in Chapter 15, [15.85]. 241 Another objection relates to the relative weight of attaching competing values in a balancing model, with the distributive effects between security and liberty being uneven—security is typically enhanced not through interference with our own liberty, but by sacrificing the freedoms of others, typically young Muslim males. 242

International perspectives on the fair trial principle [2.145] While fairness may be said to be a fundamental value of criminal justice guiding legal

development, its formulation as a distinct “right” that confers remedies under the common law is a relatively recent innovation. In Australia, international human rights law has been influential in the domestic recognition of the common law right to a fair trial. Article 14 of the ICCPR guarantees the general right, in both criminal and civil proceedings, to a “fair and public hearing by a competent, independent and impartial tribunal established by law”. It then specifies a number of due process safeguards: Art 14(2) contains the “presumption of innocence” (considered at [2.160]). Article 14(3) states: In the determination of any criminal charge against him [or her], everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he [or she] understands of the nature and cause of the charge against him [or her]; (b) To have adequate time and facilities for the preparation of his [or her] defence and to communicate with counsel of his [or her] own choosing; (c) To be tried without undue delay; (d) To be tried in his [or her] presence, and to defend himself [or herself] in person or through legal assistance of his [or her] own choosing; to be informed, if he [or she] does not have legal assistance, of this right; and to have legal assistance assigned to him [or her], in any case where the interests of justice so require, and without payment by him [or her] in any such case if he [or she] does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him [or her] and to obtain the attendance and examination of witnesses on his [or her] behalf under the same conditions as witnesses against him [or her]; (f) To have the free assistance of an interpreter if he [or she] cannot understand or speak the language used in court; 240 241 242

J Waldron, “Security and Liberty: The Image of Balance” (2003) 11(2) The Journal of Political Philosophy 191. Torture is prohibited under the Criminal Code (Cth), ss 268.13, 268.25, 268.73, as well as the ICCPR, Art 7. M Freeman, “Order, Rights, and Threats: Terrorism and Global Justice” in R A Wilson (ed), Human Rights in the “War on Terror” (Cambridge: Cambridge University Press, 2005) p 48. For a fuller exploration of “balancing” debates, see S Bronitt, “Balancing Security and Liberty: Critical Perspectives on Terrorism Law Reform” in M Gani and P Mathew (eds), Fresh Perspectives on the “War on Terror” (Canberra: Australian National University E Press, 2008) Ch 5, available online at http://press.anu.edu.au/publications/freshperspectives-war-terror (cited 5 January 2017). [2.145]

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(g) Not to be compelled to testify against himself [or herself] or to confess guilt.

Article 14(7) enshrines the principle of double jeopardy, which has been discussed above. These rights are variously protected under common law as well as in Commonwealth, State and Territory legislation, including the human rights legislation enacted in the Australian Capital Territory and Victoria: see [2.150]. The High Court cases of Jago and Dietrich framed the protection of the fair trial in terms of an institutional duty of the court to ensure the trial process was not unfair – consistent with the common law notion of negative liberties, rather than positive rights, and the rule of law. The judgments in Dietrich, in framing the common law remedies, took particular judicial notice of the fair-trial guarantees in the ICCPR and the equivalent provisions contained in the ECHR and the Canadian Charter of Rights and Freedoms. 243 The majority held that, although there is no positive right to legal representation at public expense under the common law, compelling an indigent accused to face serious criminal charges without legal representation could result in an unfair trial, which imposed upon the courts a duty to stay legal proceedings as an abuse of process. 244 Although the terms of Art 14(3)(d) of the ICCPR provided limited assistance in shaping the common law right, the majority of the High Court noted that their “qualified approach” to legal representation followed the interpretation adopted by the European Court of Human Rights and the Supreme Court of Canada. 245 The decision has had a significant impact on governmental priorities and policies of Legal Aid Commissions around Australia. 246 The decision in Dietrich signified a new “transnational approach” to legal adjudication, under which binding obligations under international law, including those contained in the ICCPR, could be considered a legitimate influence on the judicial development of the common law. 247 Undoubtedly, in further elaborating the content of this right, legal practitioners and judges may draw upon the “minimum guarantees” laid

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244 245 246

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See discussion of Art 14 of the International Covenant on Civil and Political Rights (ICCPR) in the following judgments within Dietrich v The Queen (1992) 177 CLR 292: Mason CJ and McHugh J at 300, 305–307, Deane J at 337, Toohey J at 351, 359–361, and Gaudron J at 373. Although dissenting, Brennan J viewed the ICCPR as an expression of “contemporary values” and therefore was relevant in general terms to the development of the common law: at 321. His refusal to extend the right to a fair trial, however, was motivated by concern about the appropriate limits of judicial intervention in the law-making process. Dawson J, dissenting, also accepted that the common law was inconsistent with Art 14(3)(d), but concluded that the ICCPR had no bearing on the development of the common law since the relevant case law was clear and unambiguous: at 347–349. The duty of the trial judge to grant a stay of proceedings to prevent an unfair trial was first recognised in Barton v The Queen (1980) 147 CLR 75 at 95–96; see also Williams v Spautz (1992) 174 CLR 509. Dietrich v The Queen (1992) 177 CLR 292 at 307–309 per Mason CJ and McHugh J. G Zdenkowski, “Defending the Indigent Accused in Serious Cases: A Legal Right to Counsel?” (1994) 18 Criminal Law Journal 135 and S Garkawe, “Human Rights in the Administration of Justice” (1994) 1 Australian Journal of Human Rights 371. In Victoria, reductions to the legal aid funding available for instructing defence solicitors in 2013 led to numerous stay applications on the ground that reducing funding would impinge upon the right to a fair trial in Dietrich (1992) 177 CLR 292. This legal strategy, which was based the common law rather than the Victorian Charter, was upheld on appeal, leading to swift change in legal aid policy. The issues of legal principle and policy are explored in A Flynn, J Hodgson, J McCulloch and B Naylor, “Legal Aid and Access to Legal Representation: Redefining the Right to a Fair Trial” (2016) 40(1) Melbourne University Law Review 207. See also Mabo v Queensland (No 2) (1992) 175 CLR 1. See, further, A Mason, “The Influence of International and Transnational Law on Australian Municipal Law” (1996) 7 Public Law Review 20. [2.145]

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down in Art 14(3) and the jurisprudence and commentary that has developed around the ICCPR and its European and Canadian counterparts. 248

Human rights perspectives Domesticating International Human Rights Law: ACT and Victoria Experiments [2.150] International human rights law has exerted an influence on domestic criminal

process principally in the fields of procedure and evidence. However, this impact should not be overstated. While the High Court has held that international human rights law may be relevant to the development of the common law as “an expression of contemporary values” or “fundamental rights”, it does not constitute an overriding source of law. 249 Under the Australian legal system, international law has no direct legal effect until incorporated into domestic legislation. 250 Domestic incorporation of the ICCPR has not occurred in Australia, though the Australian Capital Territory has enacted the Human Rights Act 2004 (ACT) and Victoria has largely followed the ACT model in its Charter of Human Rights and Responsibilities Act 2006 (Vic). Over the past decade, momentum for an equivalent Act at the national level has been growing. The first Rudd Government in 2007 announced national public consultation into human rights chaired by Frank Brennan. The Report of the National Human Rights Consultation, released in 2008, contained 31 recommendations to improve the promotion and protection of human rights in Australia, which included support for enacting national human rights legislation: the consultation found strong public support for such legislation with 87.4% of submissions favouring adoption. 251 Ultimately, the Rudd Government deferred the idea of national legislation, prioritising education and more active parliamentary review with human rights protection. To assist the later, the Australian Government requested the Australian Law Reform Commission (ALRC) to examine how Commonwealth laws infringe identified “traditional” rights and freedoms, which included the right to a fair trial, and to consider whether infringement was justified in the sense of being necessary or proportionate. 252 The ALRC “Freedoms Inquiry,” as it is known, covered a broad territory, though it expressly declined to offer “concluded judgments about whether these laws are appropriately justified”. Under this so-called dialogue model of human rights legislation adopted in the United Kingdom, ACT and Victoria, courts are placed under a duty to interpret legislative provisions consistently with these rights, or, if this is not possible, to make a declaration of incompatibility or inconsistent interpretation. Upholding the principle of parliamentary 248

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250 251 252

KP Duggan, “Reform of the Criminal Law with Fair Trial as the Guiding Star” (1995) 19 Criminal Law Journal 258 at 271. For an excellent discussion of potential influence of recent European human rights jurisprudence see A Flynn, J Hodgson, J McCulloch and B Naylor, “Legal Aid and Access to Legal Representation: Redefining the Right to a Fair Trial” (2016) 40(1) Melbourne University Law Review 207 at 230–235. Dietrich v The Queen (1992) 177 CLR 292 at 321 per Brennan J. Dawson J, dissenting, found that the present law clearly conflicted with the ICCPR, but concluded that the ICCPR had no relevance since the authorities were clear and unambiguous: at 347–349. See also A Mason, “The Influence of International and Transnational Law on Australian Municipal Law” (1996) 7 Public Law Review 20. See A Mason, “The Role of the Judiciary in the Development of Human Rights in Australian Law” in D Kinley (ed), Human Rights in Australian Law (Sydney: Federation Press, 1998). Attorney-General’s Department, National Human Rights Consultation Report (2009). Australian Law Reform Commission, Traditional Rights and Freedoms, Report No 129 (2016). [2.150]

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supremacy, the courts do not have the power to invalidate legislation on the grounds of inconsistency with the enumerated human rights. As is the case with the Human Rights Act 1998 (UK), the Australian provisions do not permit the courts to invalidate legislation that is inconsistent with human rights but, consistent with parliamentary supremacy, places the responsibility for amending the law upon the legislature. A report into the first five years of operation of the Human Rights Act 2004 (ACT) (hereafter HRA), compiled by the ACT Human Rights Act Research Project based at the Australian National University, assessed and summarised the impacts of the HRA as follows: “Over 60 per cent of the HRA cases concern the criminal law, covering issues such as bail, search warrants, admissibility of evidence, treatment of persons in custody, the particular rights of children in the criminal process, the right to trial without undue delay, the right to a jury trial and sentencing issues, including circle sentencing, a community-based sentencing option for Indigenous offenders. This focus on criminal issues reflects the general trend of use of bills of rights in other jurisdictions.” 253

The ACT legislation is, however, more limited than the UK model in several respects. First, there is uncertainty over the applicability of the ACT legislation to the Australian Federal Police (AFP) where their powers rest largely, or even partly, on federal rather than Territory law. Secondly, the HRA applies exclusively to “Territory law”, which is defined in the Dictionary to the Act as “an Act or statutory instrument”. The exclusion of the common law from the HRA potentially limits the impact of the HRA, leaving litigants and the courts searching and straining for a “Territory law” to which the HRA might attach. Both these features of the HRA raise the prospect that law enforcement officials may engage in strategic “choice of law”, employing powers based in federal rather than Territory law (or even the common law) to avoid their obligations under the HRA. Although federal criminal law remains outside the protective net of the HRA, it is important not to underestimate its potential impact, especially in relation to shaping legislative policy formation and educating the wider community. 254 The debate about which is the “right” model of human rights protection in Australia will no doubt continue: indeed, the Queensland Government instituted a public inquiry in 2016 to examine the desirability of enacting human rights legislation along the lines of that adopted in the UK, ACT and Victoria. International law influences the interpretation of domestic statutes in other ways. In accordance with ordinary principles of statutory interpretation, where Australian legislation incorporates or refers to a provision of an international human rights instrument, wholly or in part, the “prima facie legislative intention is that the transposed text should bear the same meaning in the domestic statute as it bears in the treaty”. 255 In relation to general legislation that does not specifically incorporate or refer to international human rights provisions, the 253

254

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The ACT Human Rights Act Research Project, The Human Rights Act 2004 (ACT): The First Five Years of Operation (2009) p 47: http://www.acthra.anu.edu.au/documents/ACTHRA_project_final_report.pdf (cited 1 May 2016). See Report of the ACT Bill of Rights Consultative Committee, Towards An ACT Human Rights Act (May 2003) and S Bronitt, “Editorial: The Human Rights Act 2004 (ACT): A Claytons Bill of Rights or New Magna Carta?” (2004) 28(6) Criminal Law Journal 325. The complex relationship between federal constitutional law and the Australian Capital Territory and Victorian legislation is explored in J Stellios, “State/territory Human Rights Legislation in a Federal Judicial System” (2008) 19 Public Law Review 52. Applicant A v Minister of Immigration and Ethnic Affairs (1997) 71 ALJR 381 at 383 per Brennan CJ. This principle of interpretation is reflected in the statutes of some jurisdictions: see Acts Interpretation Act 1901 (Cth), s 15AB(2). Moreover, courts should interpret such provisions in light of the decisions of relevant international tribunals: Dietrich v The Queen (1992) 177 CLR 292 at 304–305. [2.150]

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Australian common law recognises a rebuttable presumption that Parliament intended to conform to its fundamental human rights obligations. 256 Legislation must be construed, as far as its language permits, consistently with these human rights. 257 While judges may strenuously assert the right or even their duty to consider international human rights law in developing the common law or interpreting statutes, this freedom to incorporate indirectly human rights into Australian law is necessarily constrained by both precedent and parliamentary sovereignty. As Kirby J observed in R v Swaffield; Pavic v The Queen: “To the fullest extent possible, save where statute or established common law authority is clearly inconsistent with such rights, the common law in Australia, when it is being developed or re-expressed, should be formulated in a way that is compatible with such international and universal jurisprudence.” 258

There are of course limits to this interpretive duty. For example, any judicial development that would potentially widen the basis of criminal liability must be cognisant of the dangers of retrospective application. The principle that a person should not be held liable or punished for conduct that was not clearly criminal at the time of its commission (nullum crimen/nulla poena sine lege) is itself a fundamental human right protected by Art 15 of the ICCPR. While the principle of non-retrospectivity operates as a brake on arbitrary exercises of judicial power, it does not preclude common law development in the criminal law. International human rights law accepts that absolute certainty and predictability is impossible within common law jurisdictions. The European Court of Human Rights held that the development of the common law (in this case, the House of Lords effectively overturned a long-recognised marital rape immunity) would not offend the principle against non-retrospectivity “provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen”. 259 Nevertheless, such cases raise legitimate concerns about the limits of judicial law-making within a liberal democracy. 260 Where domestic law is either undeveloped or ambiguous, the judiciary is clearly faced with a dilemma—should it wait for Parliament to legislate (which may never happen, because of political inertia or stalemate), or should it develop common law doctrine in a manner that is consistent with international human rights standards? See further Chapter 11, [11.30]. Within “dualist” legal systems such as Australia, which maintain a strict divide between domestic and international law, the principal route for vindicating human rights protected by international law is litigation before the appropriate international court or tribunal. Following Australia’s ratification of the Optional Protocol of the ICCPR in 1991, individuals may challenge Commonwealth, State or Territory laws that violate rights protected by the ICCPR before the United Nations Human Rights Committee. The Committee may issue a ruling that 256

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258 259 260

Dietrich v The Queen (1992) 177 CLR 292 at 306 per Mason CJ and McHugh J, at 348–349 per Dawson J. The English courts have restricted the presumption that Parliament intended to legislate in conformity with the ECHR to cases involving “ambiguity”: R v Secretary of State of Home Office Department; Ex parte Brind [1991] 1 All ER 720. The Human Rights Act 1998 (UK) requires the courts to adopt an interpretation which is compatible with the Convention or, if this is impossible, to make a declaration of incompatibility: s 4. The use of international human rights law in domestic litigation is explored in K Eastman and C Ronalds, “Using Human Rights Laws in Litigation” in D Kinley (ed), Human Rights in Australian Law (Sydney: Federation Press, 1998) Ch 14. (1998) 192 CLR 159 at 214 (footnotes omitted). A similar point was made in Momcilovic v The Queen (2011) 245 CLR 1 at [444] (Heydon J) CR v United Kingdom and SW v United Kingdom (1996) 21 EHRR 363. M Giles, “Judicial Law-making in the Criminal Courts: The Case of Marital Rape” [1992] Criminal Law Review 407. [2.150]

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requires contracting States to take steps to remedy any violation, including the repeal or modification of existing laws. The Optional Protocol’s impact on the criminal law is potentially far-reaching. Immediately after its ratification, offences under the Criminal Code (Tas) that prohibited sodomy and gross indecency between consenting adult males were challenged before the Committee in Toonen v Australia. 261 The Committee held that the existence of these offences violated the rights of privacy protected under the ICCPR. The subsequent failure to repeal these laws in Tasmania led the Federal Parliament, relying upon its external affairs power under the Constitution, to enact a right to privacy in relation to sexual conduct for adults that had the effect of rendering these laws inoperative. As we shall explore in Chapter 11 at [11.220], the federal privacy shield has the potential to limit the scope of many national laws governing sexual activity, though its impact to date has been minimal. While such challenges are a cause for optimism, there are many cases where international human rights law has failed to curb judicial enthusiasm for common law development at the expense of the principles of certainty and non-retrospectivity. 262 Notwithstanding such reservations, there is a strong case for the courts and legislatures to develop domestic criminal law in conformity with international human rights law. In the criminal law field, the impact of international human rights law has been much stronger in relation to the law of evidence and procedure. The fair trial guarantees in the ICCPR have been used by Australian courts to develop the common law governing the right to silence, hearsay, prosecution disclosure and sentencing discretion. Compliance with the ICCPR is also a factor relevant to the exercise of discretion under many rules of evidence and procedure. 263 The growing significance of international human rights law to domestic criminal law and procedure is reflected in publication of recent Australian texts that outline the potential relevance of these human rights sources to domestic law, providing judges and practitioners with new legal resources for guiding the principles of interpretation – whether grounded in either common law or statute – discussed above. 264

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(1994) 1 PLPR 50, Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992, 4 April 1994. For similar rulings before the European Court of Human Rights challenging equivalent homosexual offences, see: Dudgeon v United Kingdom [1981] ECHR 7525/76 and ADT v United Kingdom [2000] ECHR 35765/97. The European Court of Human Rights held that the notoriously elusive common law definition of “breach of the peace”, which lies at the heart of public order offences and powers, complied with the ECHR: see Ch 13, [13.25]. Even where the European Court has held the domestic law in breach, this does not necessarily lead to legislative reform. For example, the common law defence of “reasonable chastisement” was successfully challenged before the European Court of Human Rights as a violation of the right not to be subjected to “torture or inhuman or degrading treatment or punishment”. The legislative inertia in the UK to reform this defence is discussed in Ch 10 at [10.135]. Indeed, the Uniform Evidence Acts specifically provide that the failure to comply with the ICCPR is a factor that must be considered in the exercise of the judicial discretion to exclude improperly obtained evidence: Evidence Act 1995 (Cth), s 138(3); Evidence Act 1995 (NSW), s 138(3); Evidence Act 2001 (Tas), s 138(3); Evidence Act 2008 (Vic), s 138(3); Evidence Act 2011 (ACT), s 138(3); Evidence (National Uniform Legislation) Act (NT), s 138(3). See for example J Gans, T Henning, J Hunter and K Warner, Criminal Process and Human Rights (Sydney: Federation Press, 2011). [2.150]

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The Fair Trial Human Rights Legislation in Practice: R v Upton [2005] ACTSC 52 We shall sell to no man, and we will not defer to any man, either justice or right. 265 [2.155] The challenge of domesticating human rights norms is apparent in the Australian

Capital Territory decision of R v Upton. In Upton, the accused had been subject to significant delays in a prosecution for an assault. The delays occurred twice: first, when there was an interference with a prosecution witness on the first day of the trial in October 2003, which occurred in the presence of Connolly J—proceedings were deferred pending police investigation and recommenced 18 months later. The second delay occurred on the day of the recommenced trial, where the Director of Public Prosecutions sought an adjournment because of difficulties in locating key witnesses. Justice Connolly’s approach to the fair trial arguments raised by the defence in its objection to further adjournment traced the common law evolution of the power to stay proceedings on the grounds of unfairness. Connolly J examined the leading decision of the High Court in Dietrich, discussed at [2.125]. Mindful of the importance of tying the interpretive provisions in the ACT Human Rights Act 2004 (HRA) to a precise statutory provision, he identified s 20 of the Supreme Court Act 1933 (ACT) as providing the legislative “hook” upon which the HRA interpretive obligation attached—the provision itself is a sparse section which simply confers on the Court “all the original and appellate jurisdiction that is necessary to administer justice in the Territory”. After locating the relevant Territory law, Connolly J turned to an analysis of s 22(2) of the HRA and the meaning of the right to be tried without “unreasonable delay”. There has been a tendency in some legal quarters to view the HRA as simply “declaratory” of the rights that are already protected by the common law. 266 While this is no doubt true sometimes, it is not always so. Indeed, the right to a fair trial under the common law diverges significantly from the evolving international fair trial jurisprudence, which extends beyond the trial into the pre-trial and evidence-gathering phases. Indeed, Upton is one such case where Connolly J was attentive to the differences between the common law and the HRA concept of a fair trial. Justice Connolly held “that the right to a trial with unreasonable delay [in the HRA] may confer greater power on this Court than the common law”. 267 One difference identified in Upton is that the common law right to a fair trial required that any delay had to be causally related to some prejudice or forensic disadvantage to the defendant. Justice Connolly held that this conception was too narrow. He was fortified in his views by a careful review of international jurisprudence which ranged across human rights cases in the United Kingdom, New Zealand and Canada. In determining whether a delay was “unreasonable”, he concluded that prejudice was simply one factor among several that could be considered by the court, along with the length of the delay, waiver of the time periods, and the reasons for the delay. What is novel about the decision in Upton was not merely the articulation of a “human-rights 265

266 267

The Magna Carta was originally issued in 1215, but was subsequently revised and reissued in 1225. The Charter was adopted by an Act of Parliament, (1297) 25 Edw 1 c 29, and it is this document which is presumed to have legal effect. See, especially, R Refshauge, “Impact on Criminal Law and Procedure”, 2007 Protecting Human Rights Conference (25 Sept 2007). R v Upton [2005] ACTSC 52 at [18]. [2.155]

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compliant” approach to the fair trial principle, but also the recognition that the appropriate remedy for breach must be proportionate. Proportionality, he observed, was the foundation of human rights law. In this context, it meant that the court must consider whether any disadvantage to the defendant caused by unreasonable delay could be appropriately addressed by measures other than a permanent stay of proceedings. In this case, he addressed the concern of the added cost burden to the defendant caused by the delay by making the order of a stay not absolute. The DPP was given the option to reimburse the defendant for the costs incurred thus far, and could commence proceedings if the court could be assured that a fair trial could be held. As he concluded: “If the DPP is of the view that this is a case where the public interest demands that the matter go to trial, all that it needs to do is to recompense Mr Upton for the cost he has incurred as a result of two trial dates that have been abandoned through no fault of his own.” This inventive remedy is not prescribed by the ACT legislation expressly. Indeed, Upton demonstrates the effective operation of the HRA required by judges, like Connolly J, who have an appreciation of the vitality of the common law method in protecting rights under the HRA, but also who respect the equally important public interest in bringing offenders to justice. Human rights law is exerting an increasingly powerful normative force on criminal law and procedure in Australia. More than 30 years ago, Murphy J foreshadowed the melding of domestic and international human rights law, coining the phrase “the common law of human rights” to denote the broader role for the common law in the protection of individual rights. 268 In the face of widespread political apathy toward the protection of human rights, judges must be especially vigilant. As Murphy J observed in McInnis v The Queen: “Often courts cannot remedy denial of human rights which occurs outside of the judicial system, but there is no excuse for tolerating it within the system.” 269 As this brief survey has demonstrated, international human rights law can no longer be viewed as a discrete area of specialisation for international lawyers, but rather forms an integral part of domestic criminal law and practice. The presumption of innocence: fundamental principle or legal fiction? [2.160] In this section, we focus on two of the most famous attributes of the fair trial—the

right to be presumed innocent, and the criminal standard of proof “beyond reasonable doubt”. The “presumption of innocence” is the cornerstone of the fair trial principle, and is celebrated in both legal and popular culture. 270 It is a fundamental human right embodied in Art 14(2) of the ICCPR: “Everyone charged with a criminal offence shall be presumed 268

269 270

Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 at 394–395 and Pyneboard v TPC (1983) 45 ALR 609 at 621–622, where Murphy J described the privilege against self-incrimination as part of the “common law of human rights”. A similar point has been made by Lord Cooke, “The Road Ahead for Common Law” (2004) 53 International & Comparative Law Quarterly 273 at 273–274. McInnis v The Queen (1979) 143 CLR 575 at 593. In TV fiction, the presumption of innocence—the golden thread of the criminal law—is cherished as the key protection against State tyranny, an image most famously and regularly invoked by Rumpole of the Bailey: J Mortimer, Rumpole (London: The Folio Society Ltd, 1994). Note also that a useful filmography, providing sources of fictional material with significant courtroom scenes illustrating the dramatic and tactical aspects of adversarial practice, has been produced by Kathy Laster with Krista Breckweg and John King: The Drama of the Courtroom (Sydney: Federation Press, 2000).

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innocent until proven guilty.” 271 The ICCPR provision has been incorporated into the human rights legislation adopted in the Australian Capital Territory and Victoria. 272 This familiar concept, which rarely requires further judicial elaboration for juries, simply means that the prosecution must prove that the accused is guilty of an offence. 273 The use of the term “presumption” is somewhat perplexing. It is not a “presumption” in the sense commonly understood by lawyers. Presumptions are evidential devices for deeming the normal expected conditions or state of affairs to exist unless proven otherwise: “The presumption, in short, is nothing more than a rule of thumb worked out by courts on its experience of the probabilities in that kind of situation.” 274 Thus, when executing a will or contract, a party is presumed to have legal capacity unless there is evidence to the contrary. By contrast, the presumption of innocence does not reflect the normal or expected state of affairs that a person charged with an offence is or will be proven innocent of the offence. Rather, the function of the presumption is to serve as a formal caution to those parties concerned with guilt determination—judges, lawyers and jurors—that the prosecution (usually the State) has to prove guilt, rather than the defence having to prove innocence. It reflects the adversarial nature of the legal process, that the party who “avers” must prove the case, and that a fair “balance” is maintained between the State and the individuals who are accused of a criminal offence. The presumption of innocence performs an important constitutional function related to the fair trial principle. The burden of proof directs the fact-finder as to which party must prove or disprove a particular element of an offence or establish a defence. It is regarded as a matter of substantive law rather than a rule of evidence because: “[r]ules for determining the incidence of the legal burden of proof are not something over and above the substantive rules to which the burden relates. Rather we speak of the ‘“burden of proof”’ because of the nature of the adversarial process. It is placed on one party or the other according to the terms of substantive rules.” 275

To determine the burden of proof, careful attention must be paid to the terms of the legislation and/or available authorities. The rules governing standard of proof, by contrast, tell the jury what to do when faced with uncertainty over the facts. Strangely, the ICCPR makes no provision about the standard of proof that should be applied in criminal proceedings. The meaning of the burden and standard of proof is governed by the common law. Since the Codes of the Northern Territory, Queensland, and Western Australia are silent on the question of burden of proof, it has been held that the common law applies. 276 Even the codification of these rules in the Criminal Code (Cth) simply restates the common law, without further 271 272 273 274 275

276

The presumption has been codified in some jurisdictions: see Criminal Code (NT), s 5. Human Rights Act 2004 (ACT), s 22(1) and Charter of Human Rights and Responsibilities Act 2006 (Vic), 25(1) respectively. For the effect of acquittal, see the discussion by Gibbs CJ, Aickin, Wilson and Brennan JJ in R v Darby (1982) 148 CLR 668 at 675 of Lord Salmon’s judgment in DPP v Shannon [1975] AC 717. J Stone and WAN Wells, Evidence: Its History and Policies (Sydney: Butterworths, 1991) p 62. Australian Law Reform Commission, Evidence, Report No 26 (Interim) (1985) p 15. By contrast, the rules of evidence assist the judge to determine whether material should be heard (admissibility) and the tribunal of fact to determine the weight to be attached to evidence (credibility). Although conceptually correct, rules relating to burden proof—both civil and criminal—have been included in the Uniform Evidence Acts. R v Packett (1937) 58 CLR 190 at 212 per Dixon J; R v Mullen (1938) 59 CLR 124 at 136 per Dixon J, at 132 per Rich J, at 138 per McTiernan J. [2.160]

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elaboration of fundamental concepts such as “beyond reasonable doubt”. 277 This approach has been followed in those jurisdictions which have adopted the Uniform Evidence Act. 278 The common law rules governing proof claim an ancient and distinguished pedigree in the criminal law. As Viscount Sankey LC observed in Woolmington v DPP: “Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of the whole of the case, there is a reasonable doubt, created by the evidence, given by either the prosecution or the prisoner … the prosecution has not made out its case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law and no attempt to whittle it down can be entertained.” 279

This famous “Golden Thread” speech was made in the context of the rules governing murder at common law. Woolmington cast doubt on the well-established practice of directing juries that, once the prosecution had proved that the accused caused the death of the victim, the killing was presumed to be murder unless the accused could prove that the killing was “involuntary” manslaughter. 280 Indeed, although much celebrated, as the High Court pointed out recently, closer historical attention to the provenance of the golden thread reveals that “… those axiomatic principles about the burden and standard of proof in criminal trials” were not fully established until Woolmington in 1935, and that it was “not until the last years of the nineteenth century that an accused person became a competent witness at his or her trial”. 281

The platitudes of innocence: a golden thread or recent invention [2.165] A famous essay by CK Allen on the presumption of innocence, published four years before Woolmington, traced how English law, from early times, contained many “platitudes of innocence”. However, as Allen observed, the presumption of innocence did not emerge distinctly until the early 19th century: “In sum, then, we may conclude that four hundred years ago in all criminal trials of which we have any record, the dice were loaded heavily against the accused. The presumption of innocence was not only absent from, but antagonistic to, the whole system of penal procedure.” 282 Allen traced the growing judicial commitment to the presumption of innocence over the intervening period to two sources: the changed social conditions and decreasing lawlessness in 277 278

279 280

281 282

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Criminal Code (Cth), s 13. Provisions have also been included in the Evidence Act 1995 (Cth), s 141; Evidence Act 1995 (NSW), s 141; Evidence Act 2001 (Tas), s 141; Evidence Act 2008 (Vic), s 141. These sections provide: “(1) In a criminal proceeding, the court is not to find the case of the prosecution proved unless satisfied that it has been proved beyond reasonable doubt; (2) In a criminal proceeding, the court is to find the case of a defendant proved if satisfied that it has been proved on the balance of probabilities”. Woolmington v DPP [1935] AC 462 at 481–482. Viscount Sankey LC, in Woolmington v DPP [1935] AC 462 at 473–474, refers to the discussion of this rule in Foster’s Crown Law (1762). However, he dismisses its authority on the basis that this statement, though made by a distinguished judge, appeared in a textbook unsupported by precedent! Paradoxically, Viscount Sankey LC offered scant legal authority for his “golden thread” in English criminal law. X7 v Australian Crime Commission (2013) 248 CLR 92 at 100. CK Allen, Legal Duties and Other Essays in Jurisprudence (Oxford: Oxford University Press, 1931) pp 257–258, extracted in C Wells and O Quick, Lacey, Wells and Quick—Reconstructing Criminal Law: Texts and Materials (4th ed, Cambridge: Cambridge University Press, 2010) p 81. One such platitude of innocence was the idea that it is better that 10 guilty men should escape punishment than one innocent person be wrongfully convicted. It emerged as a maxim in the 16th century but the ratio was initially 20:1. The 10:1 ratio was fixed as the preferred ratio in R v Hobson (1823) 1 Lew CC 261. [2.165]

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England after 1688, and the “building up” of the law of evidence—particularly the principle that a person who makes a claim under either civil or criminal law must positively prove it. 283

The fragility of the historical claims surrounding the presumption of innocence also hints at its marginal place in the modern criminal law. While the presumption is much vaunted in legal rhetoric, this fundamental principle has been significantly eroded by legislation. Although Viscount Sankey held that no attempt to “whittle” the golden thread should be entertained, he recognised two instances where the legal burden was lifted from the prosecution: the insanity defence at common law, and exceptions provided by legislation. If the defence raises evidence of insanity, it bears both the legal and evidential burden of proof to establish that defence on the standard of the balance of probabilities. The nature and role of the burdens of proof in relation to mental state defences is further explored in Chapter 4, [4.70]. The role of the evidential burden is explained below. The second exception in Woolmington relates to statutory offences that place the legal burden on the accused to prove or disprove certain facts. Such statutory provisions do not expressly state that the burden is “reversed”, but rather have the effect of (or are construed as) placing a legal duty on the accused to prove or disprove certain facts. They are a common feature of strict or absolute liability offences such as trafficking in drugs, which provide that where a person possesses a prescribed quantity of a proscribed drug, it is presumed that the drug is possessed for the purpose of trafficking unless the accused proves otherwise. A similar provision applies to the possession of stolen goods. Where the legal burden is placed on the accused, the standard of proof is the civil standard—the balance of probabilities. 284 Empirical research conducted in England by Andrew Ashworth and Meredith Blake suggests offences that derogate from the presumption of innocence are not exceptional. 285 Indeed, no fewer than 40% of indictable offences studied violated the presumption, in the sense that the burden of proof did not lie with the prosecution in all respects. The findings are more striking since the research was confined to indictable, rather than summary, proceedings. Deviation from the fundamental principle seemed ubiquitous and unprincipled; it was neither the preserve of “trivial” summary offences nor “serious” crimes involving drugs or terrorism. The study concluded that the deviation was the result of the wide scope given to Parliament by the common law to dispense or modify the requirement that the prosecution must prove a subjective fault element on the part of the accused:

283 284

285

CK Allen, Legal Duties and Other Essays in Jurisprudence (Oxford: Oxford University Press, 1931) pp 273–276. See R v Johnstone [2003] 3 All ER 884 and Criminal Code (Cth), s 13.5. This is recommended by the Attorney-General’s Department for the drafting of Commonwealth offences (Australian Government Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (Canberra: Commonwealth Attorney-General’s Department, 2011) p 52: https:// www.ag.gov.au/Publications/Pages/ GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforcementPowers.aspx (cited 5 January 2017). See, generally, S Odgers, Principles of Federal Criminal Law (3rd ed, Sydney: Lawbook Co, 2015) Ch 6. A Ashworth and M Blake, “Presumption of Innocence in English Criminal Law” [1996] Criminal Law Review 306. The offences departed from Woolmington in a number of ways, including reverse onus provisions, rebuttable presumptions and irrebuttable presumptions (or deeming provisions): pp 310–313. No comparable research has been undertaken in Australia, though it is unlikely that the findings would be significantly different. [2.165]

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“Perhaps the limited terms of Viscount Sankey’s speech in Woolmington holds the key: what he said, in effect, is that courts should invariably place the burden of proof on the prosecution, but that parliament may do what it pleases.” 286

Ashworth finds similar results in an analysis of 165 new criminal offences created in 2005 in the United Kingdom, which revealed that: • 40% of the offences were strict liability, and a further 26% were offences of strict liability leavened by the clause “without reasonable excuse”; • only 31% of the offences required some form of subjective fault, chiefly intention or knowledge; • 26% were offences of omission; and • burdens of proof were distributed between prosecution and defence inconsistently, even within the same statute. 287 While Art 14(2) of the ICCPR proclaims that everyone charged with an offence should be presumed innocent, the concept has not yet been interpreted as limiting Parliament’s sovereign power to impose “reasonable” qualifications. In jurisdictions where the fair trial principle is constitutionally entrenched, the presumption has the power—at least potentially—to invalidate offences that alter the burden of proof. This issue was the position taken in the Privy Council in Attorney-General for Hong Kong v Lee Kwong-kut when considering the application of a Bill of Rights Ordinance to a reverse onus clause in a possession of stolen goods provision. 288 In Canada, the courts have adopted a less discretionary approach to stricter forms of liability. The principle of “fundamental justice” contained in s 7 of the Charter of Rights and Freedoms confers substantive rights that are not merely procedural, and thus has invalidated offences that dispense with fault while carrying imprisonment as a possible penalty. 289 The principle of fundamental justice in Canada has been used to initiate a wide-ranging review of the law of criminal responsibility. 290 It provides the clearest example in a common law jurisdiction of how constitutionalising abstract principles (in this case “fundamental justice” rather than fairness) can produce significant rethinking of traditional doctrinal concepts and strengthen judicial commitment to basic values. In jurisdictions such as the United Kingdom, Victoria and the Australian Capital Territory, where the courts are under a duty to interpret legislation consistently with human rights, reverse onus provisions have been “read down” by the courts as imposing only an evidential, rather than legal or persuasive, burden on the accused. 291 This approach had been applied to terrorism offences by the House of Lords before the Human Rights Act 1998 (UK) had come 286 287

288 289

290 291

A Ashworth and M Blake, “Presumption of Innocence in English Criminal Law” [1996] Criminal Law Review 306 at 314. See A Ashworth, “Criminal Law, Human Rights and Preventive Justice” in B Sherry, A Borrie and S Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Oxford: Hart Publishing, 2008). Attorney-General for Hong Kong v Lee Kwong-kut [1993] AC 951. Charter of Rights and FreedomsSection 7 provides, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”: Constitution Act 1982 (Can). E Colvin, “Recent Developments in Canadian Criminal Law” (1995) 19 Criminal Law Journal 139. This has also been the approach favoured in Hong Kong in the Final Court of Appeal, which considered that the presumption of innocence entrenched in the Basic Law imposed a duty on courts to interpret the legislation so as to be compatible with that human right, with the effect that the obligation placed on the accused to prove

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into effect. 292 Responding to the interpretive duties imposed by the new Act, the House of Lords in R v Lambert affirmed that inroads on the presumption of innocence must be carefully scrutinised to ensure that departures were both justified and proportionate. In that case, the reverse-onus provisions in the Misuse of Drugs Act 1971 (UK) had “crossed the line” and, in the words of Lord Steyn, were “a disproportionate reaction to perceived difficulties facing the prosecution in drugs cases”. 293 The consideration of the House of Lords decision in R v Lambert had an impact on the drafting of legislation in the field of sexual offences, leading to the removal of reverse-onus provisions in the Bill that was subsequently enacted as the Sexual Offences Act 2003 (UK). 294 It is important to appreciate that this body of human rights jurisprudence does not require all burdens on the defence to be interpreted as evidential ones. This distinction is discussed at [2.175]. A subsequent House of Lords decision in R v Johnstone unanimously declined to take such an approach to the construction of a defence to a trademark offence (the defence was required to show that the accused had a reasonable belief that the use did not infringe the trademark). Lord Nicholls, with whom the other Lords agreed, held that placing the legal or persuasive burden on the accused did not breach the presumption of innocence protected in Art 6(2) of the ECHR. He noted that in Convention jurisprudence: “A reasonable balance has to be held between the public interest and the interests of the individual. In each case it is for the state to show that the balance held in the legislation is reasonable. The derogation from the presumption of innocence requires justification.” 295

A range of factors would be relevant to this balancing exercise: the serious effects caused by trading in counterfeit goods; whether the offence was strict liability; the level of punishment attached to the offence; the need to encourage prudence on the part of the traders to ensure that they were not trading in counterfeit goods; the defence relating to facts within the accused person’s own knowledge; and the difficulties faced by prosecutors in obtaining evidence. After weighing these factors, he concluded that the burden properly rested with the accused to establish the “reasonable belief” defence: “Given the importance and difficulty of combating counterfeiting, and given the comparative ease with which an accused can raise an issue about his [or her] honesty, overall it is fair and reasonable to require a trader, should need arise, to prove on the balance of probability that he [or she] honestly and reasonably believed the goods were genuine.” 296 [2.170] There are limits to this interpretive approach, and the Australian courts seem less

willing than the House of Lords to take a strong remedial approach to interpretation that would effectively constitute a judicial redraft of the provision. In R v Momcilovic, 297 the Victorian Court of Appeal expressed a clear preference to issue a declaration of incompatibility rather than trespass onto the province of the legislature by straining interpretation. The case involved reverse onus provisions in drug trafficking offences which had the effect that proof that a drug of dependence was found “upon any land or premises occupied by” a person

292 293 294 295 296 297

certain exculpatory matters must be viewed as an evidential rather than legal burden. In this case, Sir Anthony Mason NPJ concluded that the Basic Law of Hong Kong impliedly conferred power on the Court to make “a remedial interpretation” which went beyond ordinary common law interpretation: HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574. R v DPP; Ex parte Kebilene [1999] 3 WLR 972. R v Lambert [2001] 3 All ER 577 at 594. A Ashworth and J Temkin, “The Sexual Offences Act 2003: Rape, Sexual Assaults and the Problems of Consent” [2004] Criminal Law Review 328 at 333–334, 342–343. R v Johnstone [2003] 3 All ER 884 at 898. R v Johnstone [2003] 3 All ER 884 at 900. R v Momcilovic (2010) 25 VR 436. [2.170]

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would mean that the person is deemed to be in possession of that drug unless the contrary was proved. In this case the boyfriend admitted that he had stored the drug in his girlfriend’s apartment without her knowledge. The girlfriend was convicted of possession on the basis that she was unable to prove, on the balance of probabilities, that she was not aware of the existence of those drugs. The Court of Appeal engaged in an extensive review of the interpretive obligations under the Victorian Charter of Rights and Responsibilities informed by a comparison with similar human rights instruments in the UK, Canada, New Zealand and Hong Kong. The Court identified a three-stage approach, once it was established that the statutory provision infringed a Charter right: “Step 1: Ascertain the meaning of the relevant provision by applying s 32(1) of the Charter in conjunction with common law principles of statutory interpretation and the Interpretation of Legislation Act 1984 (Vic). Step 2: Consider whether, so interpreted, the relevant provision breaches a human right protected by the Charter. Step 3: If so, apply s 7(2) of the Charter to determine whether the limit imposed on the right is justified.” 298

In this case, the Court concluded that the reverse onus provision in s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) cannot be interpreted consistently with the presumption of innocence under s 25(1) of the Charter. The Court considered the approach taken in the UK cases but rejected that approach of imposing an evidential rather than legal burden on the accused. Rather the Court issued a declaration of incompatibility, which places the issue before the Attorney-General and the legislature for consideration. The matter was appealed to the High Court, where this particular declaration was held invalid, though the majority (4:3) held these declarations in general to be valid, with the majority judges evenly split (2:2) on whether the particular declaration should have been made in this case. The High Court also overturned Ms Momcilovic’s conviction on grounds unrelated to the Charter of Rights. 299 The case reveals the acute dilemmas and high political stakes that judges face in applying human rights legislation in the criminal context – to either strain interpretation of the statutory provisions so as to conform to the Charter, or to boldly declare the provision to be incompatible with the Charter, and suffer the inevitable political fallout from such a ruling and populist claim that the courts are “soft on crime”. The presumption of innocence is not the only human right enlivened by these strict forms of liability. The Australian Capital Territory Court of Appeal, while recognising that the Human Rights Act 2004 (ACT) (HRA) does not prevent the legislature from enacting strict liability offences, noted that s 18(1) of the HRA secures a right to liberty and security of person (with express reference to the prohibition on arbitrary arrest or detention). In the view of Higgins CJ and Connolly J, this meant that s 18(1) “would be inconsistent with disproportionate punishments or the imposition of punishment for conduct for which the actor is not, on any rational view, responsible”. 300 This suggests that strict liability offences in the Australian Capital Territory would be similarly “read down” as has occurred in the United Kingdom.

298 299 300

R v Momcilovic (2010) 25 VR 436 at 446. Momcilovic v The Queen (2011) 245 CLR 1. Hausmann v Shute [2007] ACTCA 5 (5 April 2007), per Higgins CJ and Connolly J at [37]–[39], discussed in The ACT Human Rights Act Research Project, The Human Rights Act 2004 (ACT): The First Five Years Of Operation (2009) p 60: http://www.acthra.anu.edu.au/documents/ACTHRA_project_final_report.pdf (cited 1 May 2016).

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Distinguishing burdens: legal or evidential? [2.175] As noted above, the burden of proof—which is sometimes referred to as the onus of

proof—relates to the duty placed on a party to prove certain facts. The term “burden of proof” is used in two different senses, as: • the legal burden of proof; and • the evidential burden of proof. Diagram 1: Burden of proof

The most significant burden of proof is the legal or persuasive burden. In criminal cases, the general rule is that the prosecution bears the legal burden of proving all the elements of the crime and rebutting any defences. 301 It is a persuasive burden, in the sense that the prosecution bears the risk of losing the case if there is a failure to persuade the trier of fact that a proposition has been made out: Woolmington v DPP. 302 The legal burden remains on the prosecution for the whole trial. In exceptional cases, where the legal burden is placed on the accused (for example, the defence of mental impairment), the lower civil standard, the balance of probabilities, applies. The other burden of proof, the evidential or tactical burden, relates to the duty to produce some evidence to support a claim. The evidential burden, unlike the legal burden can rest on either party. The duty is placed on one of the parties to produce sufficient evidence to permit the matter to be left to the jury for consideration. This burden does not require the party to prove the issue. It is for the judge to decide whether the issue has the support of evidence so that it can be considered by the jury. A distinction is generally drawn between the evidential burden in relation to offences and defences. Except where otherwise provided by statute, the 301

302

Woolmington v DPP [1935] AC 462; R v Mullen (1938) 59 CLR 124; Chan Kau v The Queen [1955] AC 206; Thomas v The Queen (1960) 102 CLR 584; La Fontaine v The Queen (1976) 136 CLR 62; Van Leeuwen v The Queen (1981) 36 ALR 591; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; Hoch v The Queen (1988) 165 CLR 292; R v Falconer (1990) 171 CLR 30. Woolmington v DPP [1935] AC 462 at 482 per Viscount Sankey LC. [2.175]

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prosecution bears the evidential burden in relation to proving the elements of the crime. 303 However, in relation to defences, the evidential burden is placed upon the accused. 304 The rationale for placing an evidential burden on the accused in relation to defences is that it would be impractical to require the prosecution to rebut every defence theoretically open to the accused in every trial. Why do we place such a burden on the party adducing the evidence? Lord Morris in Bratty v Attorney General for Northern Ireland offered the following rationale for the placing of an evidential burden on the accused: “As human behaviour may manifest itself in infinite varieties of circumstances it is perilous to generalise, but it is not every facile mouthing of some easy phrase of excuse that can amount to an explanation. It is for a judge to decide whether there is evidence fit to be left to the jury which could be the basis of some suggested verdict.” 305

The evidential burden ensures that the prosecution is not saddled with a duty to disprove all possible defences, however fanciful and incredible. It provides a practical means of controlling whether the defence has made a reasonable foundation for a defence, before requiring the prosecution to disprove it. The standard of proof in criminal trials: doubts about beyond reasonable doubt? [2.180] While the burden of proof deals with which party bears the duty of proving a

particular issue, the standard of proof relates to the quantum or level of proof: how much evidence is required to convict the accused? The criminal standard of proof—“beyond reasonable doubt”—again occupies a central place in legal and popular culture. 306 Although regularly affirmed by the courts today, historical research reveals that, prior to Woolmington, there was little legal authority supporting the criminal standard of proof as beyond reasonable doubt. 307 Since he doubted whether there was any “true difference” between a balance of probabilities and a reasonable certainty (the converse of reasonable doubt), CK Allen concluded that “the principle of ‘reasonable doubt’ therefore seems to be little more than a counsel of prudence; and there is considerable judicial authority for this

303 304

305 306

307

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DPP v Morgan [1976] AC 182; Tsang Ping-Nam v The Queen [1981] 1 WLR 1462; May v O’Sullivan (1955) 92 CLR 654. Mancini v DPP [1942] AC 1; Chan Kau v The Queen [1955] AC 206; Ryan v The Queen (1967) 121 CLR 205 at 215–216 per Barwick CJ; Marwey v The Queen (1977) 138 CLR 630 at 641 per Stephen J; Moffa v The Queen (1977) 138 CLR 601 at 607 per Barwick CJ; Viro v The Queen (1978) 141 CLR 88 at 95 per Barwick CJ, at 117 per Gibbs J, at 146 per Mason J, at 147–148 per Jacobs J; R v O’Connor (1980) 146 CLR 64 at 88 per Barwick CJ; He Kaw Teh v The Queen (1985) 157 CLR 523 at 534–535 per Gibbs CJ, at 593 per Dawson J; R v Youssef (1990) 50 A Crim R 1. Bratty v Attorney General for Northern Ireland [1963] AC 386 at 416–417. Since Woolmington v DPP [1935] AC 462, the criminal standard has been repeatedly affirmed: R v Mullen (1938) 59 CLR 124; Chan Kau v The Queen [1955] AC 206; Thomas v The Queen (1960) 102 CLR 584; La Fontaine v The Queen (1976) 136 CLR 62; Van Leeuwen v The Queen (1981) 36 ALR 591; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; Hoch v The Queen (1988) 165 CLR 292; R v Falconer (1990) 171 CLR 30. A similar position appears to apply in Australia. In 1821, an admission that the prisoner caused the death would place a burden on the defence to establish that the killing was justified or manslaughter under provocation: see R v Ryan [1821] NSWKR 2: “The Judge Advocate then entered into a very full elucidation of these two points, remarking, all killing was held to be murder until satisfactorily proved to the contrary; but that in every case a very principal feature for the Court to have in regard was that malice aforethought must appear to have existed before it could amount to murder.” [2.180]

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view”. 308 Julius Stone similarly viewed the principle of beyond reasonable doubt as a “neutralising weapon” that addressed the frailties of human tribunals, particularly the normal tendency for the mere fact of a criminal accusation to interfere with the degree of impartiality necessary for a fair trial. 309 Diagram 2: Standard of proof

“Beyond reasonable doubt” is commonly defined and contrasted by its antinomy, the civil standard of proof (that is, the “balance of probabilities”). Any further attempt to elaborate on the time-honoured formula of beyond reasonable doubt by resort to mathematical analogies or percentages can provide grounds for an appeal. 310 The likelihood and severity of punishment affect the degree of certainty required to “feel sure”. As Helena Kennedy observed: “The wording invariably used by judges today is that jurors must be ‘satisfied so that they are sure’, an expression more likely to conjure up advertisements for Cadbury’s chocolate. Does the concept of satisfaction or ‘being sure’ drive one to the level of certainty which should be required before we surrender a citizen to sentencing and the likely loss of liberty? For the most part the only people who mention proof ‘beyond reasonable doubt’ are defence lawyers.” 311

The formula impresses upon the jury the importance of prudence in criminal matters because of risks to liberty and reputation posed by conviction. Yet in this regard, the jury is not well placed to gauge the weight of these matters since they are invariably ignorant of the gravity of the consequences of a guilty verdict, such as whether the offence carries imprisonment. By contrast, the civil standard, discussed below, impresses on the fact-finder (the judge rather than a jury) the importance of such consequential factors. A review of available empirical evidence reveals that the direction on standard of proof in criminal trials is “almost universally seen as problematic”. 312 Penny Darbyshire sums up the research on the direction as follows: 308

309 310 311 312

CK Allen, Legal Duties and Other Essays in Jurisprudence (Oxford: Oxford University Press, 1931), discussed in N Lacey, C Wells and O Quick, Reconstructing Criminal Law (3rd ed, London: LexisNexis Butterworths, 2003) p 26. J Stone and WAN Wells, Evidence (Sydney: Butterworths, 1991) p 69. Dawson v The Queen (1961) 106 CLR 1 at 18 per Dixon CJ; Thomas v The Queen (1960) 102 CLR 584; Green v The Queen (1971) 126 CLR 28; La Fontaine v The Queen (1976) 136 CLR 62. H Kennedy, Eve Was Framed—Women and British Justice (London: Vintage Books for Chatto and Windus, 1993) p 4. P Darbyshire, “What Can We Learn From Published Jury Research?” [2001] Criminal Law Review 970 at 974. [2.180]

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“Juries have immense difficulty in understanding ‘beyond reasonable doubt’. Depending on how it is interpreted by the judge, they may equate it with 51-100 per cent proof. Modern lay persons are used to evaluating probability in percentages. English research findings confirm real jurors’ accounts that when the judge uses the word ‘sure’, some or even the majority of jurors will equate BRD [beyond reasonable doubt] with absolute proof.” 313

This is confirmed by an English study based on interviews with real jurors, many of whom were uncertain about the meaning of the concept. 314 Nevertheless, judges are discouraged from elaborating more generally on the meaning of “beyond reasonable doubt”, except to reiterate that the standard does not require absolute certainty and is stricter than the civil standard of “balance of probabilities”. As the Privy Council has observed in Ferguson v The Queen: “The time-honoured formula is that the jury must be satisfied beyond reasonable doubt … attempts to substitute other expressions have never prospered. It is generally sufficient and safe to direct a jury that they must be satisfied beyond reasonable doubt so that they feel sure of the defendant’s guilt. Nevertheless, other words will suffice, so long as the message is clear.” 315

The New South Wales Law Reform Commission’s 2008 Consultation Paper, Jury Directions, suggests that, in Australia, a judge is constrained in the explanation that can be provided when a jury requests more details as to what “beyond reasonable doubt” refers to: “The general approach in Australia would be to provide no more elaboration than that a reasonable doubt is a doubt that the jury considers reasonable, or to inform the jury, somewhat unhelpfully, that the law does not permit of any further explanation than that given in the initial direction.” 316

The Commission went on to note that there was empirical and anecdotal evidence from studies in both New South Wales and New Zealand suggesting that jurors disagreed about the meaning of “reasonable doubt” when not given further explanation. The current position in Australia contrasts with the position taken by New Zealand, Canadian and United States courts, which encourages explanation to jurors. 317 For example, in R v Lifchus 318 the Supreme Court of Canada held that a trial judge must offer proper guidance to the jury on the meaning of “beyond reasonable doubt”—it was insufficient for juries to be told that this standard was a familiar concept determined by its ordinary meaning. In directing the jury, the court emphasised that judges should draw a link between the standard of proof and the presumption of innocence. Reasonable doubt was described as “a doubt based on reason and common sense which must be based upon the evidence or lack of evidence”. 319

313 314

315 316 317 318 319

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P Darbyshire, “What Can We Learn From Published Jury Research?” [2001] Criminal Law Review 970 at 978. P Thornton, “Trial by Jury: 50 years of Change” [2004] Criminal Law Review 683 at 690. See also New South Wales Law Reform Commission, Jury Directions, Consultation Paper 4 (2008) pp 70–72, and, generally, W Young, “Summing-up to Juries in Criminal Cases: What Jury Research Says About Current Rules and Practice” [2003] Criminal Law Review 665. Ferguson v The Queen [1979] 1 All ER 877 at 882. New South Wales Law Reform Commission, Jury Directions, Consultation Paper 4 (2008) pp 69–70 (footnote omitted). New South Wales Law Reform Commission, Jury Directions, Consultation Paper 4 (2008) pp 71–72. R v Lifchus [1997] 3 SCR 320. R v Lifchus [1997] 3 SCR 320 at 333. See further, G Ferguson, “Recent Developments in Canadian Criminal Law” (2000) 24 Criminal Law Journal 248 at 262–263. [2.180]

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A model “beyond reasonable doubt” direction? [2.185] In New South Wales, the following model instruction is given when a judge instructs a jury as to the meaning of “beyond reasonable doubt”: “The Crown must prove the accused’s guilt beyond reasonable doubt. That is the high standard of proof that the Crown must achieve before you can convict the accused. At the end of your consideration of the evidence in the trial and the submissions made to you by the parties you must ask yourself whether the Crown has established the accused’s guilt beyond reasonable doubt. In other words you should ask yourselves whether there is any reasonable possibility that the accused did not do what the Crown alleges against him/her. Unless the Crown satisfies you that no such possibility exists you must find the accused not guilty. 320… In a criminal trial there is only one ultimate issue that a jury has to decide. Has the Crown proved the guilt of the accused beyond reasonable doubt? If the answer is “yes”, the appropriate verdict is ’guilty’. If the answer is ’no’, the verdict must be ’not guilty.” The New South Wales Law Reform Commission further asserts that “appellate courts in Australia have consistently held that it is an expression well understood by ordinary people” and thus “is a matter for the jury to decide whether a doubt is reasonable in the circumstances.”? 321 Empirical evidence suggests the contrary, discussed further at [2.190].

The position in relation to the standard of the evidential burden of proof is similarly shrouded with uncertainty. In Bratty v Attorney-General for Northern Ireland, Lord Denning spoke of the requirement that the evidential burden on the defence in relation to sane automatism would be fulfilled if the evidence amounted to a “proper foundation”. 322Subsequently, the New South Wales Court of Criminal Appeal stated in R v Youssef that: “[T]he accused bears an evidentiary onus to point to or to produce evidence (or material in an unsworn statement) from which it could be inferred that … there is at least a reasonable possibility that, for example, the act of the accused was accidental, or that it was provoked or done in self-defence.” 323

Just what amounts to a “proper foundation” or “prima facie evidence” or a “reasonable possibility” will be a matter for a judge to determine. The distinction between the criminal and civil standards of proof is further blurred when the meaning of “balance of probabilities” is subject to close critical scrutiny. Although the phrase is suggestive of “51 out of 100 per cent”, 324 the civil standard of proof has been held to be case or context-dependent. What constitutes the amount of proof necessary for “reasonable satisfaction” in a civil matter varies, as Sir Owen Dixon in Briginshaw v Briginshaw observed: “But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences

320

321 322 323 324

This Model Instruction from the Judicial Commission of New South Wales, New South Wales Criminal Trial Courts Bench Book (October 2008) is reproduced in the New South Wales Law Reform Commission, Jury Directions, Consultation Paper 4 (2008) p 67. New South Wales Law Reform Commission, Jury Directions, Consultation Paper 4 (2008) p 67. Bratty v Attorney-General for Northern Ireland [1963] AC 386 at 413. Moreover, in Hill v Baxter [1958] QB 277 at 285, Lord Devlin referred to the requirement of “prima facie evidence”. R v Youssef (1990) 50 A Crim R 1 at 3. See, generally, G Williams, “The Mathematics of Proof” [1979] Criminal Law Review 297. [2.185]

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flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.” 325

Since jury trials are rare in civil matters, the metaphysical dimensions of a case or context-dependent standard of proof have not been subject to further judicial elaboration. The concept of a modified civil standard may acquire further elaboration with increasing prevalence of civil penalty provisions: see Chapter 1, [1.25]. In the United Kingdom, the House of Lords held that in determining whether to grant anti-social behaviour orders—a form of restraining order—the criminal standard of beyond reasonable doubt applies. Their Lordships noted that although the relevant proceedings were civil in character, given the serious consequences of the allegations, fairness to the accused required a higher standard of proof: R v Manchester Crown Court. 326 The High Court of Australia has addressed a similar question in relation to the standard of proof applicable to customs and excise prosecutions for the recovery of penalties in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd. 327 Rather than engage in an inquiry to determine the “essential” character of the proceedings as being either civil or criminal, the court focused on the nature of the orders that flowed from the proceedings. Although there had been a long practice of classifying customs prosecutions as civil (in common with revenue proceedings), the court took the view that the prospect of entering a conviction at the conclusion of such proceedings meant that the criminal standard should apply. As Hayne J noted: “Absent statutory provision to the contrary, a conviction should not be recorded except where the requisite elements of the contravening conduct are established beyond reasonable doubt”. 328 Of course, this dicta suggests that the legislature is free to modify expressly the standard applied in any legal proceedings, demonstrating the malleability and blurred contours of the civil/criminal law distinction, discussed in Chapter 1, [1.20]. The law/fact distinction: the boundaries of judicial impartiality [2.190] In terms of the division of labour, the judge decides matters of law, whereas the jury

decides matters of fact. In matters of fact, the jury may be said to be sovereign. The judge’s duty is to direct the jury as to the relevant law and it is the duty of the jurors to apply the law to the facts. The judge directs the jury as to the law during the summing-up at the end of the trial, just before the jury retires to deliberate on its verdict. In the summing-up, the judge may also express an opinion as to the evidence, but must be careful not to usurp the function of the jury. 329 During sentencing, however, the judge has a duty to review the evidence for the purpose of making findings of facts in order to determine the sentence. 330 This does not violate s 80 of the Constitution, which guarantees within federal jurisdiction the right to trial by jury for indictable offences. 331 325

330 331

Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–362. The case involved an appeal against a divorce on the grounds of adultery. There remains uncertainty over this formulation: “As the seriousness of the allegation increases does the standard of satisfaction vary or does the standard remain the same but more cogent proof is needed?”: Australian Law Reform Commission, Evidence, Report No 26 (Interim) (1985) p 45, fn 25. R v Manchester Crown Court [2003] 1 AC 787. (2003) 216 CLR 161. Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 at 206. For a description of the duties involved in “summing up” see C Cato, The Law and Practice of Criminal Litigation (Sydney: LBC Information Services, 1998) pp 304–306. Cheung v The Queen (2001) 209 CLR 1. Cheng v The Queen (2000) 203 CLR 248.

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326 327 328 329

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The complexity of the judicial role in commenting on evidence has been examined by the High Court in RPS v The Queen. 332 The appeal examined whether inferences of guilt could be drawn from the accused’s failure to testify. The majority (Gaudron ACJ, Gummow, Kirby and Hayne JJ) held that where the prosecution adduced direct evidence of guilt, the accused’s silence could not be used to infer guilt. This general inhibition on the evidential use of silence was related to the fundamental feature of criminal trials; namely, that the accused was not bound to give evidence and that the prosecution must prove its case beyond reasonable doubt. At the end of their judgment, the majority took the unusual step of offering general guidance on the function of jury instructions: Judicial instructions in criminal trials 41. Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence. 42. But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge’s other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel. 333

Although the division of judicial and jury responsibilities is firmly drawn, as noted above, upon closer scrutiny the law/fact dichotomy is misleading. The judge exerts significant influence over fact-determination through the process of “summing-up” which legitimately traverses both matters of law and fact. The rules of evidence may impose a judicial duty to direct or warn the jury on matters relating to issues of credibility or dangers of certain types of evidence, such as eyewitness testimony. Moreover, Australia has inherited the English tradition (which has not been followed in the United States) of giving judges considerable latitude in commenting on the strengths and weaknesses of the defence and prosecution case. The extent to which a trial judge may express personal views on the credibility of witnesses threatens to undermine the independence of the jury. As Helena Kennedy has observed: “When jurists from other countries see the extent to which our judiciary give rein to their own views and try to influence juries in the summing-up at the end of the trial, they are appalled; it appears a usurping of the jury’s function, contrary to the principle of jury trial.” 334

Indeed, the guidance offered by the High Court in RPS v The Queen may be viewed as an attempt to minimise undue judicial interference with jury deliberations. 335 332 333 334 335

RPS v The Queen (2000) 199 CLR 620. RPS v The Queen (2000) 199 CLR 620 at 637 (original emphasis, footnotes omitted). H Kennedy, Eve Was Framed—Women and British Justice (London: Vintage Books for Chatto and Windus, 1993) p 5. RPS v The Queen (2000) 199 CLR 620. See further, New South Wales Law Reform Commission, Jury Directions, Consultation Paper 4 (2008) pp 108–111, 113–126; G Flatman and M Bagaric, “Juries Peers or Puppets—The Need to Curtail Jury Instructions” (1998) 22 Criminal Law Journal 207. [2.190]

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Judges are also called upon to make interlocutory determinations on many factual questions in the course of the trial. Preliminary hearings may be held to determine the admissibility of evidence; for example, a voir dire (a hearing in the absence of a jury) may be held to determine the admissibility of a confession alleged to be involuntary or improperly obtained. At the end of the prosecution case, the judge may be called upon to rule whether there is a prima facie case for the accused to answer; that is, whether there is sufficient evidence to allow the case to proceed. 336 Conversely, the jury is not confined exclusively to the facts, and may intrude upon legal matters. Since the jury renders the general verdict of guilty or not guilty, and is not required to provide reasons, it has considerable power to nullify laws and prosecutions considered to be abusive or unjust. 337 The capacity of the jury to temper the strictness of legality—its power to be “above the law”—has been represented as a bulwark of liberty against unfair and unjust offences enacted by the legislature over which the courts, due to the doctrine of parliamentary supremacy, are powerless. 338 Unlike the United States, where the power of jury nullification is expressly preserved in some States, nullification in Anglo-Australian juries is illusory since juries do not receive instruction on nullification verdicts. While jury nullification of “unjust” laws may occur in some cases (or be suspected to have occurred), its practical significance is further tempered by the rarity of contested criminal matters and the dominance of summary trials conducted without a jury: see Chapter 1, [1.135]. The formal segregation of the functions of judge from jury also ignores the wide range of “mixed” issues of law and fact. This may be illustrated by the standard directions concerning the meaning of grievous bodily harm or serious injury. In determining whether the harm or injury caused is grievous or serious, the jury does not have a completely free hand with the facts. The judge will direct the jury as to the type and quantum of injuries that satisfy the particular legal definition. As we shall explore in Chapter 10, [10.80], the judge may (depending on the facts) direct the jury that: • the injury must be serious, not trivial; • the accused must take the victim as he or she finds them; and • harm is not limited to physical injury—it also includes psychological harm, provided that it amounts to a “recognisable psychiatric disorder”. In both direct and indirect ways, a judge imposes limits on the freedom of the jury to determine the facts as the jury sees fit. Available research on jury decision-making reveals the strong influence of judicial directions on the minds of the jury. In a pioneering study more than 35 years ago, John Baldwin and Mike McConville identified cases where much of the jury’s deliberation was actually taken up with seeking to discover what was in the judge’s mind and with trying to produce a verdict with which the judge would agree!? 339 Subsequent research suggests that jurors continue to struggle with the complexity of the evidence and law presented to them, though the increased provision of written instructions, visual aids and access to trial 336

338 339

Doney v The Queen (1990) 171 CLR 207; see C Cato, The Law and Practice of Criminal Litigation (Sydney: LBC Information Services, 1998) pp 301–302; J Jackson and S Doran, “Judge and Jury: Towards a New Division of Labour in Criminal Trials” (1997) 60(6) Modern Law Review 759 at 767. See further P Devlin, Trial By Jury (London: Stevens and Sons, 1966); J Hunter and K Cronin, Evidence, Advocacy and Ethical Practice (Sydney: Butterworths, 1995) pp 120–122. P Devlin, “The Conscience of the Jury” (1991) 107 Law Quarterly Review 398 at 404. J Baldwin and M McConville, Jury Trials (Oxford: Clarendon Press, 1979) p 78.

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transcripts would greatly assist in deliberation. 340 Without legislative change, some judges provide jurors with written material in serious matters, such as homicide, which summarises the key questions and outlines the law to be applied. Such materials, while being no substitute for proper oral directions, “greatly assist the jury to follow and apply the oral directions”. 341 An empirical study in New Zealand suggests that juries, while confronting difficulties, did perform their tasks competently and with integrity. 342 This sentiment is echoed by Justice Young of the High Court of New Zealand who presents a review of current jury research and concludes that: “[I]solated instances of jury misconduct or perversity should not be taken as the norm. It is right to recognise that juries are generally diligent, and, if given the right assistance, are usually collectively willing and able to determine cases”. 343 He is supportive of judicial input in jury trials and makes recommendations for providing better judicial assistance to juries: “At the start of the trial, jurors should be told what is truly in issue. In summing up, if not before, the judge should marshal the evidence around those questions. In cases of any length, the oral process of the criminal trial process requires some written supplementation if jurors are to recall enough of the evidence and the summing up to be able to deliberate efficiently and to reach verdicts on the evidence and in accordance with the law.” 344

Despite these sentiments, empirical research has revealed that judges often hamper rather than assist jury decision-making. Research using mock juries in England suggests that judicial warnings about evidence that is considered potentially unreliable—such as the mandatory corroboration warning in sexual offences trials—can be counterproductive, having the opposite effect to that which was intended by the judge. 345 While perhaps ineffective, such warnings embody discriminatory myths and stereotypes about female sexuality. The “special” evidential and procedural rules governing sexual offences are explored in Chapter 11, [11.180], “Perspectives: special procedural and evidential rules for sexual offences”. To avoid the danger of unduly prejudicing the jury and rendering the trial unfair, the summing-up must be “balanced” between the prosecution and defence: “A judge is obliged to give a fair and balanced account of the prosecution and the defence case … He or she must exhibit a judicial balance so that the jury is not deprived of understanding and giving effect to the evidence and matters relied upon in support of the defence.” 346

Even where the direction is balanced, the language and tone can play a significant role: 340

341 342 343 344 345

346

P Darbyshire, “What Can We Learn From Published Jury Research?” [2001] Criminal Law Review 970 at 973; see also New South Wales Law Reform Commission, Jury Directions, Consultation Paper 4 (2008) pp 111–113. For an excellent review of the current state of jury research, see M Nolan and J GoodmanDelahunty, Legal Psychology in Australia (Sydney: Lawbook Co, 2015) Ch 7. See R v Ford [2003] NSWCCA 5 at [5] per Heydon JA. W Young, Y Tinsley and N Cameron, “The Effectiveness and Efficiency of Jury Decision-Making” (2000) 24 Criminal Law Journal 89. Young J, “Summing-up to Juries in Criminal Cases—What Jury Research Says about Current Rules and Practice” [2003] Criminal Law Review 665 at 689. Young J, “Summing-up to Juries in Criminal Cases—What Jury Research Says about Current Rules and Practice” [2003] Criminal Law Review 665 at 689. London School of Economics Jury Project, “Juries and the Rules of Evidence” [1973] Criminal Law Review 208, discussed in J Hunter and K Cronin, Evidence, Advocacy and Ethical Practice (Sydney: Butterworths, 1995) pp 80–81. In cases where the warning was given, juries were more likely to convict. One possible explanation is that the warning to the jury that it is dangerous to convict without corroboration requires the judge to identify what evidence is corroborative. This serves to highlight implicating material against the accused and so underscores (rather than undermines) the prosecution case. C Cato, The Law and Practice of Criminal Litigation (Sydney: LBC Information Services, 1998) pp 305–306, citing B v The Queen (1992) 63 A Crim R 225 at 229 per Brennan J; for further discussion, see New South Wales Law Reform Commission, Jury Directions, Consultation Paper 4 (2008) pp 113–119. [2.190]

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“The judge’s usual linguistic device is to express an opinion and then add the rider that ‘of course, members of the jury, it is a matter for you’. But jurors perceive this as the judge tipping them the wink as to how they should be thinking.” 347

Indeed, these judicial cues and qualifications may explain why evidence of intoxication or an unreasonable mistake, though technically capable of negating the required mental state for the offence, rarely result in an acquittal: see Chapter 11, [11.150]. As this section has revealed, for academic as well as practical reasons, greater attention must be paid to the procedural context within which so-called fundamental principles operate.

Procedural perspectives Law and Order Politics: The Reform of Double Jeopardy [2.195] Double jeopardy is typically represented as an “800-year-old rule of the common

law”. It is reflected in the Latin maxim non bis in idem and pleas of autrefois convict or acquit. However, this venerable pedigree conceals the extensive modern development of the doctrine which has occurred both in domestic common law and international human rights law. In relation to the latter, the principle of double jeopardy finds its modern expression in the International Covenant on Civil and Political Rights (ICCPR), Art 14(7), which provides: No-one shall be liable to be tried or punished again for an offence for which he [or she] has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

In Australia, reform of this important principle has proceeded in a largely ad hoc, piecemeal fashion as a response to the public controversy generated by the High Court’s decision in R v Carroll. 348 In that case, the accused had been acquitted of murder following a successful appeal against their conviction. Following new evidence many years later that pointed towards his guilt, the accused was prosecuted and convicted for perjury arising out of the allegedly false denials of killing the victim which he had made during the murder trial. The decision of the High Court to quash the conviction for perjury was not legally controversial, amounting merely to an affirmation of a “fundamental rule of the common law” 349. Reflecting his reasoning in Carroll, Kirby J in his extra-judicial writings has highlighted the many important functions of the existing rule, including the principle of finality. He also noted that substantial revision to permit retrial may be incompatible with Art 14(7) of the ICCPR, above. 350 Due to the extensive media coverage of the case, the MCCOC was compelled into a more strategic review of the law for the purpose of 347 348 349 350

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H Kennedy, Eve Was Framed—Women and British Justice (London: Vintage Books, 1993) p 5. (2002) 213 CLR 635. M Kirby, “Carroll, Double Jeopardy and International Human Rights Law” (2003) 27 Criminal Law Journal 231 at 235. M Kirby, “Carroll, Double Jeopardy and International Human Rights Law” (2003) 27 Criminal Law Journal 231 at 243–244. See further, C Corns, “Retrial of Acquitted Persons: Time for Reform of The Double Jeopardy Rule?” (2003) 27(2) Criminal Law Journal 80; M Bagaric and L Neal, “Double Jeopardy in Australia: The Illusion of an Absolute Protection and the Prosecution Process as Punishment” (2005) 8 Canberra Law Review 87; M McMahon, “Retrials of Persons Acquitted of Indictable Offences in England and Australia: Exceptions to the Rule Against Double Jeopardy” (2014) 38(3) Criminal Law Journal 159. For an excellent review of the origins, and confused rationale of the rule, see M Edgely, “Truth or Justice? Double Jeopardy Reform for Queensland: Rights in Jeopardy” (2007) 7(1) Queensland University of Technology Law and Justice Journal 108. [2.195]

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developing a series of “protective principles” to govern the retrials of persons previously acquitted. 351 This may be contrasted with the comprehensive review of the law in New Zealand and the United Kingdom by their respective Law Commissions. 352 Notwithstanding some compelling arguments in favour of retention, significant political pressure was applied to reform these “outdated” laws governing double jeopardy through the Council of Australian Governments (COAG). As a result, most jurisdictions have modified the rule against double jeopardy. 353 These reforms in Australia largely followed the United Kingdom model in the Criminal Justice Act 2003 (UK), which allows prosecutors to apply to the Court of Appeal for retrials of “serious offences” notwithstanding an earlier acquittal in cases where there is fresh and compelling evidence or the acquittal was “tainted”, and the retrial would otherwise serve the “interests of justice”. The reforms provide the prosecution with new powers to appeal acquittals on points of law and to seek retrials, though there are some significant differences across jurisdictions. Marilyn McMahon has summarised the differences as follows: • The appeal against acquittal is of right (New South Wales, Western Australia) or by leave of the trial judge/appellate court (Tasmania, South Australia). • The grounds of appeal vary signi?cantly from questions of law (New South Wales and Tasmania), to questions of law and/or fact (Western Australia) and “any grounds” (South Australia). • The appeal is sometimes subject to the proviso that even if a ground of appeal might be decided in favour of the prosecution, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. • Following the quashing of an acquittal, the orders that can be made by an appeal court vary considerably: in Tasmania the appeal court is empowered to substitute a verdict of guilty; whereas in New South Wales this is expressly prohibited. • Unlike other reforms to double jeopardy, they are generally not retrospective in operation. 354 Though these laws have been in place for some time in England and Australia, the powers are rarely, if ever, used, and have not even been evaluated, 355 leading to concern that these reforms, responding to the lobbying efforts of victims of crime groups, have been largely symbolic.

351 352 353

354 355

MCCOC, Chapter 2—Issue Estoppel, Double Jeopardy and Prosecution Appeals against Acquittals, Report (2004). Law Commission (NZ), Acquittal Following Perversion of the Course of Justice, Report No 70 (2001); Law Commission (England and Wales), Double Jeopardy and Prosecution Appeals, Report No 267 (2001). Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW) Pt 8; Criminal Code (Double Jeopardy) Amendment Act 2007 (Qld); Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 (SA), Criminal Code Amendment Act 2008 (No. 33 of 2008); Criminal Procedure Amendment (Double Jeopardy and Other Matters) Act 2011 (Vic). Proposals to enact similar reforms are currently before the legislatures in the Australian Capital Territory and Northern Territory. M McMahon, “Retrials of persons acquitted of indictable offences in England and Australia: Exceptions to the rule against double jeopardy” (2014) 38(3) Criminal Law Journal 159 at 172. M McMahon, “Retrials of persons acquitted of indictable offences in England and Australia: Exceptions to the rule against double jeopardy” (2014) 38(3) Criminal Law Journal 159 at 162. [2.195]

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The Principle of Equality Before the Law [The poor] have to labour in the face of the majestic equality of the law, which forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread. 356 [2.200] Equality before the law is a fundamental principle which ensures that individuals are

not subject to discrimination in the enjoyment of their legal rights or entitlements. Article 7 of the Universal Declaration of Human Rights 357 (UDHR) provides that “[a]ll are equal before the law and are entitled without discrimination to equal protection of the law”. The International Covenant on Civil and Political Rights (ICCPR) contains a similar provision in Art 26, which states that: The law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The equal right of men and women to enjoy these rights is further recognised in Art 3. The right to equality before the law was the subject of a major law reform project by the Australian Law Reform Commission two decades ago called Equality Before the Law. 358 The major report recommended federal legislation that would “guarantee that everyone is entitled to equality in law” and would render inoperative “any law, policy, programme, practice or decision which is inconsistent with equality in law on the ground of gender”. 359 The recommendation was never implemented though Victoria and the Australian Capital Territory have enshrined the right to equality before the law in their respective human rights legislation, discussed at [2.150]. 360 The principle of equal treatment before the law is directed to procedural rather than substantive ends. As formal or strict equality promotes sameness of treatment, it may conceal the substantive political, social and economic inequality of disadvantaged groups or individuals. Acknowledgment of these limitations has generated remedial versions of equality, such as equality of opportunity. Yet, both formal and remedial conceptions of equality have been criticised from a feminist perspective. Nicola Lacey has summarised the feminist critique as follows: “In the case of equality, it has been argued that liberal notions of equality are fundamentally premised on the idea of sameness: equal treatment is due to all who are similarly situated to the full liberal subject. Hence, if the subject is implicitly marked as masculine—is understood in terms of bodily and psychic characteristics which have been culturally understood to be associated with men—then the strategy of equality amounts to the assimilation of women to a norm set by and for men.” 361

Inequality is approached from the liberal (and invariably legal) standpoint of individualism. By conceiving discrimination as the different treatment of individuals on specified grounds such as gender or race, there is only limited scope for addressing and remedying group-based disadvantage. Rejecting the concept of “equality as sameness”, feminists have focused instead 356 357 358 359 360 361

Anatole France, Le Lys Rouge (1894) Ch 7. Adopted and proclaimed by General Assembly Resolution 217A (III) of 10 December 1948. Australian Law Reform Commission, Equality Before the Law, Report No 69 (1994). Australian Law Reform Commission, Equality Before the Law, Report No 69 (1994) p 65. See Human Rights Act 2004 (ACT), s 8 and Charter of Human Rights and Responsibilities Act (Vic), s 8. N Lacey, Unspeakable Subjects—Feminist Essays in Legal and Social Theory (Oxford: Hart Publishing, 1998) p 240.

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on subordination. 362 There is considerable scope for the “normative reconstruction” of equality in broader pluralistic terms such as “equality as acceptance” or “equality as respect for difference”. 363 Anti-discrimination legislation has been criticised as implicitly setting up a male norm by which other groups can be measured. To avoid this, it has been suggested that legislation aimed at specific disadvantaged groups should be enacted instead. 364 There is also concern about the packaging of equality, or indeed any normative claim, in terms of “rights”. Dissatisfied with the privileging of liberalism within conventional rights discourse, some critical and feminist scholars have rejected the concept of rights entirely. 365 Valerie Kerruish rejects the fetish for asserting rights, claiming it is wrong to support rights as “claims of liberal ideals of liberty, equality and democratic community, or of justice or human rights or whatever”. Rather, she argues that rights should be construed as “claims by people bearing the heaviest burdens of our way of life, which express resistance to the established order of things”. 366 This approach recognises the empowering effect of the language of rights within legal and political discourse. As Hilary Charlesworth concludes: “The assertion of rights can have great symbolic force for oppressed groups within a society offering a significant vocabulary to formulate political and social grievances which is recognised by the powerful.” 367

Equality is clearly a contested notion with multiple meanings. While being flawed and limited in fundamental respects, the principle of equality before the law continues to influence many debates about the reform of the criminal law. It holds out the promise of liberation for the disadvantaged within society. In the following sections, we review the struggles over the different and contested meanings of equality in debates concerning the treatment of women and Indigenous peoples by the criminal law. Feminist perspectives on gender discrimination and the criminal law [2.205] In her essay, Celia Wells, a leading feminist scholar, concluded: “Viewing criminal law

and justice through a feminist lens has revealed both profound transformations and ‘business 362

363 364

365

366 367

C MacKinnon, Toward a Feminist Theory of the State (Cambridge, Mass: Harvard University Press, 1989) Ch 12; J Morgan and R Graycar, The Hidden Gender of Law (2nd ed, Sydney: Federation Press, 2002) pp 28–31, discussing the adoption of the subordination principle as the theoretical perspective for reviewing criminal law in Canada: E Sheehy, “Personal Autonomy and the Criminal Law: Emerging Issues”, Background Paper, Canadian Advisory Council on the Status of Women (1987). See also proposals for a gendered equality right within a Bill of Rights which specifically addresses women’s subordination: J Morgan, “Equality Rights in the Australian Context: A Feminist Perspective” in P Alston (ed), Towards an Australian Bill of Rights (Canberra: Centre for International and Public Law and Human Rights and Equal Opportunity Commission, 1994) p 144. N Lacey, Unspeakable Subjects—Feminist Essays in Legal and Social Theory (Oxford: Hart Publishing, 1998) pp 239–241, discussing the work of feminist theorists Drucilla Cornell and Luce Irigaray. See, for example, the Australian Law Reform Commission minority report which proposed the adoption of a Status of Women Act for the purpose of establishing a specific right to equality in law for women: H Charlesworth, “Taking the Gender of Rights Seriously” in B Galligan and C Sampford (eds), Rethinking Human Rights (Sydney: Federation Press, 1997) p 48. For a review of this debate, see H Charlesworth, “Taking the Gender of Rights Seriously” in B Galligan and C Sampford (eds), Rethinking Human Rights (Sydney: Federation Press, 1997) pp 32–35, and J Morgan, “Equality Rights in the Australian Context: A Feminist Perspective” in P Alston (ed), Towards an Australian Bill of Rights (Canberra: Centre for International and Public Law and Human Rights and Equal Opportunity Commission, 1994) pp 123–131. V Kerruish, Jurisprudence as Ideology (London and New York: Routledge, 1991) p 145. H Charlesworth, “The Australian Reluctance About Rights” in P Alston (ed), Towards an Australian Bill of Rights (Canberra: Centre for International and Public Law and Human Rights and Equal Opportunity Commission, 1994) p 49. See also H Charlesworth, “Taking the Gender of Rights Seriously” in B Galligan and C Sampford (eds), Rethinking Human Rights (Sydney: Federation Press, 1997) Ch 3. [2.205]

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as usual’”. 368 It is undeniable that there have been some significant reforms aimed at improving the treatment of women by the criminal justice system. As we shall explore in Chapter 11, feminist concerns about the rules of evidence and procedure that discriminate against women who allege sexual abuse have led to wide-ranging reforms in Australia: [11.175]. However, empirical studies suggest that rape law reform has not significantly improved the treatment of victims by the legal process. 369 Arguments based on equality have also supported the abolition of substantive rules that discriminate against women, such as the marital rape immunity. Yet the case of marital rape reveals the limits of legal strategies for achieving gender equality. While formal legal and evidential hurdles to the prosecution of men who rape their wives have been removed, discriminatory attitudes of prosecutors and judges during sentencing continue to downgrade the seriousness of non-stranger rape (rape by a spouse, partner or acquaintance). 370 As Nicola Lacey concludes, the criminal law has only limited potential to achieve sexual equality in marriage “because of all sorts of other flows of power—economic power being significant among them—which cannot be affected except by very radical social change which cannot be engendered directly by legal means”. 371 While landmark judicial decisions have addressed some overtly discriminatory aspects of the criminal law (such as marital rape immunity), these cannot really be heralded as evidence of the success of feminism. As Celia Wells noted in the essay above, few of these decisions made use of the significant writing or campaigns by feminists on these topics. 372 A better legal strategy for promoting gender consciousness could be to expressly align feminist critique with international human rights law. International human rights law can provide a legal basis—as distinct from a purely philosophical basis—for using equality to evaluate and reform the criminal law. In the context of discrimination against women, this process has been bolstered by international treaties such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), adopted by the United Nations in 1979, that contains specific obligations on contracting states to take steps to eliminate discrimination against women. 373 The Convention does not address the general topic of violence against women, though the subsequent Declaration on the Elimination of Violence Against Women (DEVAW) stated that “gender-based violence” as a form of discrimination is prohibited under CEDAW. These international human rights treaties have supported the enactment of extraterritorial offences against sexual trafficking and child sex tourism, discussed in Chapter 15, [15.30]. As noted at [2.145], there is considerable potential for international law, particularly relating to human rights, to operate as a legitimate influence on the development of the 368 369

370 371 372 373

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C Wells, “The Impact of Feminist Thinking on Criminal Law and Justice: Contradiction, Complexity, Conviction and Connection” [2004] Criminal Law Review 503 at 515. Department of Women (NSW), Heroines of Fortitude (1996); Department of Justice (Vic), Rape Law Reform Evaluation Project—The Crimes (Rape) Act 1991 (1997). See, generally, P Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998); G Mason, “Reforming the Law of Rape” in D Kirkby (ed), Sex, Power and Justice (Melbourne: Oxford University Press, 1995) Ch 4. P Easteal, Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998) Ch 8. N Lacey, Unspeakable Subjects—Feminist Essays in Legal and Social Theory (Oxford: Hart Publishing, 1998) p 241. C Wells, “The Impact of Feminist Thinking on Criminal Law and Justice: Contradiction, Complexity, Conviction and Connection” [2004] Criminal Law Review 503 at 508. See, generally, H Charlesworth and C Chinkin, “Violence against Women” in J Stubbs (ed), Women, Male Violence and the Law (Sydney: Institute of Criminology, 1994) Ch 2. [2.205]

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common law in Australia. A Canadian decision provides an example of how international treaties may be used productively to remove discriminatory concepts embedded in the substantive law. In R v Ewanchuk the Supreme Court of Canada remoulded the common law definition of “consent” for the purpose of sexual assault. The Court unanimously rejected a submission that the common law recognise a defence of “implied consent” to sexual assault. 374 Not only did a defence of implied consent give inadequate weight to the importance of sexual autonomy, it also perpetuated the “no means yes” discriminatory stereotype of females’ sexual passivity. Feminist criticism of the common law governing lack of consent in rape law is reviewed in Chapter 11, [11.25]. The strategy of reshaping the common law adopted by the Supreme Court of Canada was preferred to a direct constitutional challenge that these laws violated the guarantee of equality under the Canadian Charter of Rights. In developing the common law, Madam Justice L’Heureux-Dubé drew extensively on provisions in CEDAW and DEVAW, pointing to the obligation on contracting states to “ensure that laws against family violence and abuse, rape, sexual assault and other gender-biased violence give adequate protection to all women, and respect their integrity and dignity”. 375 The obligation included protection against sexual activity that occurs because of force, threats or fear. L’Heureux-Dubé J highlighted the importance of tackling discrimination in the form of gender bias in the judiciary, pointing to the obligation in Art 4(j) of DEVAW that required states to adopt: “all appropriate measures, especially in the field of education, to modify the social and cultural patterns of conduct of men and women and to eliminate prejudices, customary practices and all other practices based on the idea of the inferiority or superiority of either of the sexes and on stereotyped roles for men and women.” 376

In light of these international obligations, L’Heureux-Dubé J viewed the judicial task as involving the correction of “myths and stereotypes” evident both in the substantive legal rules and the gender-biased language employed in the judgments of the lower courts. She concluded: “It is part of the role of this Court to denounce this kind of language, unfortunately still used today, which not only perpetuates archaic myths and stereotypes about the nature of sexual assaults but also ignores the law.” 377

The experience in Canada suggests that these provisions of CEDAW and DEVAW may be used to develop the Australian common law in a similar manner. 378 A similar sensitivity to issues of discrimination is evident in judicial efforts to re-define self-defence in a way that may take into account the experiences of battered women: see Chapter 6, [6.65], “Intimate partner violence and self-defence”. Feminist and cultural claims to equality can often collide. Articles 18 and 27 of the ICCPR specifically protect ethnic and cultural rights under the guarantee of freedom of religion and the right of ethnic, religious or linguistic minorities to enjoy their own culture, religion or 374 375 376 377 378

[1999] 1 SCR 330. R v Ewanchuk [1999] 1 SCR 330 at 364 (emphasis in original). R v Ewanchuk [1999] 1 SCR 330 at 365 (original emphasis). R v Ewanchuk [1999] 1 SCR 330 at 376. The notion of “actual bodily harm” under the common law of assault has traditionally excluded the infliction of psychological and psychiatric distress: cf the wider definition in English law in R v Ireland [1997] 4 All ER 225. By contrast, gender-based violence under the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) covers “acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty”: General Recommendation No 19 (11th Session 1992). CEDAW provides the mandate for widening the common law definition of “assault” and developing new statutory crimes of stalking: see Ch 10. [2.205]

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language. “Rights conflicts” are most problematic in cases where individual rights collide with group rights. Human rights lawyers often reject the contention that rights are hierarchical and that specific individual rights trump general collective rights. Since rights are rarely absolute, competing tensions between rights and other interests must be resolved through a process of balancing interests. Concepts like proportionality are thus liberally employed to accommodate competing interests while maximising respect for human rights. The ALRC in its Freedom Inquiry described the proportionality analysis for ustifying restrictions of rights and freedoms as follows: “In short, a structured proportionality analysis involves considering whether a given law that limits important rights has a legitimate objective and is suitable and necessary to meet that objective, and whether—on balance—the public interest pursued by the law outweighs the harm done to the individual right.” 379

However, there are problems in this “balanced” image of human rights. The structural constraints of “balancing” have been previously explored in the context of the fair trial principle: see [2.135]. In this context, the process of balancing conceives individual and group rights as mutually exclusive: to promote individual rights is necessarily to subvert collective rights, and vice versa. 380 The reduction of conflict to these simple binary terms conceals the composition and complexity of the values in opposition, and tends to result in individual rights trumping collective interests. Dissatisfied with the privileging of individual liberalism, some feminists have argued for a pluralistic conception of equality that promotes, rather than suppresses, difference. Difference is not confined to gender but includes anything that plays a role in constituting identity, including culture, religion, language, sexuality and so on. 381 The “difference perspective” cuts across the binary distinction of individuals and groups since it is concerned both with individual differences such as personal expression and characteristics, and group differences such as language, culture and religion. Adopting this approach, the values underlying respective claims are transparent and may be negotiated more constructively. In the criminal law, tensions within the concept of equality have manifested themselves in debates over the extent to which defences should incorporate discriminatory cultural beliefs about female sexuality. In the context of provocation, examined in Chapter 5, at [5.10], there is controversy over whether the cultural attitudes and ethnic background of the accused should be considered relevant; not only to determining the gravity of the provocation, but whether the provocation was such as could cause an “ordinary person” to act in the way in which the accused did. The difficulty arises in cases where the accused’s response to the provocation is founded on cultural belief or customs that are discriminatory and condone or legitimate violence against women and children. From a practical perspective, it is important that cultural claims that incorporate and perpetrate gender discrimination are evaluated 379 380

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Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws, Report No 129 (2016), [2.63] (bold emphasis in original). Noting the sterility of the individual versus group rights approaches in Canadian jurisprudence, Eisenberg favours the development of a “difference perspective”. By focusing on identity-related difference, courts can better frame its reasoning in terms of the values actually at stake: A Eisenberg, “The Politics of Individual and Group Difference in Canadian Jurisprudence” (1994) 27 Canadian Journal of Political Science 1. There is a danger that feminism replaces one (masculine) universalism with two. As Lacey concludes: “We need, in other words, to … locate the ethical impulse to attend to otherness not just within the vector of sexual difference but within those of racial, ethnic, national, class and other differences too”: Unspeakable Subjects—Feminist Essays in Legal and Social Theory (Oxford: Hart Publishing, 1998) p 245. On the growing significance of intersectionality in equality jurisprudence, see S Bottomley and S Bronitt, Law in Context (4th ed, Sydney: Federation Press, 2012) pp 18-20. [2.205]

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carefully—culture is neither monolithic nor immutable. Without careful interrogation of the centrality of these cultural beliefs to identity, there is a real danger that the courts may stereotype the values and beliefs of “other” races and cultures, paradoxically perpetuating discriminatory myths. Respecting gender and cultural differences involves complex political and moral questions. In cases of irreconcilable conflict between these imperatives, it has been suggested that the legislature, rather than the courts, should choose which values should prevail in a specific context. 382 Anticipating the potential clash between cultural and feminist claims to equality, the DEVAW sets out that “States should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination”: Art 4. The DEVAW draws on the rights contained in the UDHR and the ICCPR. The UDHR and ICCPR contain the right not to be subject to torture, or to cruel, inhuman or degrading treatment or punishment, and the right to liberty and security of person. In Chapter 10, [10.105], we consider the conflict between feminist and cultural claims to equal treatment in relation to “female genital mutilation”. Should this practice be outlawed as a form of torture? To what extent should the law accommodate harmful cultural differences? Is it possible to achieve a balance between feminist and cultural claims? Equality before the law: denying Indigenous criminal law and jurisdiction [2.210] The paradox of equality before the law—its capacity to perpetuate and thereby

condone disadvantage—is apparent in debates over the recognition of Indigenous “customary law”. As noted in our discussion of jurisdiction at [2.50], in the colonial period there were legal challenges (ultimately unsuccessful) suggesting that Indigenous people were not amenable to criminal jurisdiction in all situations. This issue of native criminal jurisdiction has been re-agitated by the High Court’s recognition of native title in Mabo v Queensland (No 2). The decision left open a basis for argument, by analogy to native title, that Indigenous criminal laws (including customary defences) may have survived British occupation. As Deane and Gaudron JJ observed in Mabo: “The common law so introduced was adjusted in accordance with the principle that, in settled colonies, only so much of it was introduced as was ‘reasonably applicable to the circumstances of the colony’. This left room for the continued operation of some local laws or customs among the native people and even the incorporation of some of those laws and customs as part of the common law.” 383

Not long after Mabo, Stanley Yeo (drawing the analogy with native title) argued that Aboriginal criminal jurisdiction survived unless clearly abrogated by Parliament or executive action. 384 Yeo suggested that even if Aboriginal criminal jurisdiction was held to have been abrogated, Mabo provided a moral basis for its reinstatement as a gesture of reconciliation consistent with the trend toward recognition of Indigenous rights to self-determination or self-management. 385 382

383 384 385

K Amirthalingam and S Bronitt, “Cultural Blindness and the Criminal Law” (1996) 20(2) Alternative Law Journal 58 at 60. See also S Bronitt, “Visions of a Multicultural Criminal Law: An Australian Perspective” in AD Renteln and M Foblets, Multicultural Jurisprudence: Comparative Perspectives on Cultural Defense (Hart Publishing, Oxford, 2009) and T Calma, “The Integration of Customary Law into the Australian Legal System” (2007) 25(1) Law in Context 74 at 77. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 79. S Yeo, “Native Criminal Jurisdiction After Mabo” (1994) 6 Current Issues in Criminal Justice 9; S Yeo, “Editorial—Recognition of Aboriginal Criminal Jurisdiction” (1994) 18 Criminal Law Journal 193. S Yeo, “Editorial—Recognition of Aboriginal Criminal Jurisdiction” (1994) 18 Criminal Law Journal 193 at 196. [2.210]

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The extent of the extinguishment of native criminal jurisdiction is yet to be resolved authoritatively by the High Court. However, the prospects of success seem remote in light of the reasoning in Walker v New South Wales. This case concerned an attempt to claim, through the civil courts, that the Commonwealth and State parliaments lacked the power to legislate over Aboriginal people without their consent. During the course of oral argument, the plaintiff introduced a further argument that Aboriginal criminal customary law had not been extinguished by British settlement. Refusing leave to appeal, Mason CJ noted that an argument framed in terms of Indigenous sovereignty and rights of self-determination was doomed to failure, as they were in Mabo (No 2). The second argument also failed on the ground that the recognition of two concurrent, potentially overlapping, systems of criminal law would be confusing to citizens and, more fundamentally, contradicted the principle of equality before the law: “It is a basic principle that all people should stand equal before the law. A construction which results in different criminal sanctions applying to different persons for the same conduct offends that basic principle. The general rule is that an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons and matters … The presumption applies with added force in the case of the criminal law, which is inherently universal in its operation, and whose aims would otherwise be frustrated.” 386

Mason CJ went on to say that even if it was assumed that the customary criminal law of Aboriginal people had survived settlement, it had been extinguished by the passage of criminal statutes of general application. No analogy could be drawn with native title: “English criminal law did not, and Australian criminal law does not, accommodate an alternative body of law operating alongside it. There is nothing in Mabo (No 2) to provide any support at all for the proposition that criminal laws of general application do not apply to Aboriginal people.” 387

This approach, based on the principle of equality before the law, is not beyond challenge. As our discussion of jurisdiction above has revealed, the simple ideal of territoriality in the criminal law has been subject to significant qualifications and exceptions. As Jennifer Neilsen and Gary Martin point out, the rejection of Indigenous criminal law in Walker ignores “the pluralism already inherent within the Australian federation, which is comprised of three tiers of law-making authority, each of which is