Principles of criminal liability
Chapter 2.1
Key Knowledge
Key Skills
You need to develop the following skills:
define key legal terminology and use it appropriately
explain the principles of criminal liability
research and gather information about criminal cases,
using print and electronic media
apply legal principles to relevant criminal cases and
issues.
The need for criminal law
Criminal Law is used to clarify types of behavior that are considered
criminal by a particular society
It also provides a range of punishments that fit the crime
For society to function we need to clearly spell out what is acceptable
behavior and what is not
Discuss what our society would be like if there were no criminal laws.
What difficulties arise when different states and different countries have
different criminal laws?
2.1 Principles of criminal liability.
Definition; A crime is an unlawful act or omission (failure) to act
that is regarded unacceptable according to the law at the time,
and is punishable by law.
What a crime is can change over time and varies between
cultures
Law makers (parliament and courts) determine what constitutes a
crime
Features of a crime
Four features of a crime
1. The act is against the law - a law exists that prohibits the act
2. The act is immoral - criminal laws are based on the notion of
what society thinks is right or wrong. i.e. theft, murder
3. The act is harmful to society – this can include physical, mental
or financial harm to a victim. It may include a victimless
4. The act is punishable- there is a sanction associated with
committing the crime
Sources of criminal law
1. State Acts of Parliament – State parliaments make laws for their particular state
The Crimes Act 1958- this Act of parliament lists all indictable offences and their
penalties.
Indictable offence is a serious criminal offence which the accused or defendant is
entitled to be tried before a judge and jury. Examples include; murder, rape,
treason, theft.
Summary offence is a minor criminal offence that can be heard in a Magistrates
Court without a jury
Summary Offences are contained in other legislation such as;
The Summary Offences Act 1966 (Vic)
The Road Safety Act 1986
The Religious Tolerance Act 2001
Sources of criminal law (cont.)
2. Federal Acts of Parliament – Federal Parliament makes laws for the
Commonwealth
The Crimes Act 1914 (Commonwealth) includes laws that become
applicable to all of Australia.
Examples include; treachery, sabotage, piracy
3. Local Councils - there are 79 different councils in Victoria which
have been given powers by State Parliament to make laws and
regulations specific to their local area.
Sources of criminal law (cont.)
3. Common law is law made through courts.
Common law originated in England
It allows laws to evolve through the court
Laws evolve when judges make judgments,
clarify, expand and narrow existing laws.
These legal rulings are known as precedents
Precedent/case law/common law all mean the same thing
Elements of a crime
For a conviction to occur the prosecution must prove 2 elements.
1. Actus reus: Latin for guilty act
2. Mens rea: Latin for guilty mind
No offence has occurred by just having the mens rea (thinking
about committing a crime)
If a person has committed a crime (actus rea) but had no
intentions of committing the crime there cannot be a conviction
Examples
Theft
actus reus – appropriating some else’s property without their consent
mens rea – doing so dishonestly or intentionally
Murder
actus reus – causing another person’s death
mens rea – doing so intentionally or recklessly with some form of premeditation
Armed robbery
actus reus – appropriating some else’s property without their consent while
threatening the person with some form of weapon
mens rea – doing so intentionally or recklessly
Fraud
actus reus – signing a document in another person’s name
mens rea – doing so intentionally or dishonestly
Drug trafficking
actus reus – selling illicit drugs to another person
mens rea – doing so knowingly and intentionally
Strict liability cases
Strict liability cases are those that do not require the prosecution
to prove the that the accused intended to commit the offence.
Simply by proving the accused committed the act they will be
found guilty
These offences are less serious offences that occur frequently
Examples include; drink driving, traffic offences, selling
alcohol/cigarettes to minors, work health and safety offences
Age of criminal responsibility
Under 10 years od age
In Victoria a child under the age of 10 cannot be
charged with a criminal offence
It is assumed the child did not understand the consequences of
his/her actions
Between 10-14
The law assumes the child is not mentally capable of committing a
crime but if the prosecution can prove it was intentional, and knew it
was seriously wrong the child can be charged
15 year olds and over
Children over 14 (15 or more) can be charged
as adults
The presumption of innocence
Australia has adopted the British Westminster system which gives
us the presumption of innocence until proven guilty.
The accused therefore has the right to silence and do not have to
prove their innocence.
It is up to the prosecution (party that presents the case on behalf
of the state) to prove the case
In the Inquisitorial systems (used in parts of Europe and Asia) the
accused has to answer to the accusations made against them
Burden of proof
Refers to who has to prove the case to the court
In the Australian Westminster system the burden of proof lies with
the prosecution (Crown)
The defendant does not have to say or prove
anything
The prosecution (the State) has to prove the
case against the defendant
Standard of proof
In a criminal trial the standard of proof is beyond
reasonable doubt
If there is a reasonable doubt that the defendant did not
commit the crime they will be set free
A jury will discuss the evidence and decide the verdict
based on ‘beyond reasonable doubt’
Participants in a crime
Three main participants in a crime
1. Principal offender: the person who actually commits the crime
2. Abettor: the person who, in the commission of a crime; aids (helps to
carry out the crime), abets (encourages), counsels (advises how to carry
out the crime) procures (organizes someone to carry out the crime).
They are treated as if they are the principal offender
3. Accessory to a crime: the person who knows about the crime and
impedes (prevents) their apprehension, prosecution, conviction or
punishment od the principal offender.
An indictable offence is a crime that carries a punishment of 5 years or more
Your Turn
Complete your summary of Chapter 2.1
Complete ‘test your understanding’ (page 43) questions
1-8
Complete “apply your understanding questions 9, 10, 11
