An Overview of Criminal Law (VCE SSCE Legal Studies): Revision Notes

An overview of criminal law

Criminal law is a fundamental area of law in Australia that serves to protect the community. It does this by clearly defining which behaviours are considered crimes and establishing the penalties for those who commit them. Understanding criminal law is essential for anyone studying legal studies, as it forms the basis of how society maintains order and safety.

What is criminal law?

Criminal law is the area of law that defines prohibited behaviours and conduct, and outlines the sanctions (penalties) for people who commit them. It serves two main purposes:

• Defining acts or omissions that are considered crimes
• Establishing maximum penalties or sanctions for people who commit crimes

The primary function of criminal law is to protect the community as a whole, not just individuals. This distinguishes it from civil law, which deals with disputes between individuals or organisations.

Understanding crimes

A crime is an act or omission that meets three key criteria:

1. Breaks an existing law - The behaviour must violate a law that has been created by parliament
2. Is harmful to both an individual and society - The action must cause harm not just to one person, but to the community as a whole
3. Is punishable by law - The state has the power to impose a penalty on the person who commits the crime

Common examples of crimes include murder, theft, damage to property, and assault. Each of these actions harms both a specific victim and society's sense of safety and order.

Acts versus omissions

Criminal law recognises two ways in which a person can commit a crime:

Acts are positive actions taken by a person. For example, if someone steals an item from a store, they are performing an act of theft. This breaks criminal law, causes harm to the store owner, and is punishable by law.

Omissions are failures to act when there is a legal duty to do so. Not all failures to act are crimes - there must be a specific legal obligation to act.

The key point is that in some situations, failing to do something can be just as criminal as actively doing something wrong.

Key concepts of criminal law

Three fundamental concepts underpin the operation of criminal law in Australia. These concepts ensure fairness and protect the rights of accused persons while maintaining the integrity of the justice system.

Presumption of innocence

The presumption of innocence is a fundamental right in the Australian legal system. It guarantees that any person accused of a crime will be assumed to be not guilty until they are proven guilty or plead guilty themselves.

This means that:

• The accused does not have to prove their innocence
• They should be treated as not guilty throughout the legal process as far as possible
• The burden is on the prosecution to prove guilt, not on the accused to prove innocence

Burden of proof

The burden of proof (also called the onus of proof) refers to which party has the responsibility to prove the facts of the case. In criminal cases, this burden almost always rests with the prosecution. The prosecution must present evidence to prove that the accused committed the crime.

However, there are specific circumstances where the burden of proof can shift to the accused. This happens when the accused raises certain defences. For example, if an accused person claims they were suffering from mental impairment at the time of the offence, they must prove this defence. The accused must demonstrate that they were not of sound mind when they committed the offence.

The general rule remains: the prosecution carries the burden of proving the accused committed the crime.

Standard of proof

The standard of proof refers to the strength of evidence required to prove a case successfully. Different standards apply in different situations:

Beyond reasonable doubt is the standard used in criminal cases. The prosecution must prove that there is no reasonable doubt the accused committed the offence. This is a very high standard - it means the evidence must be so strong that a reasonable person would have no real doubt about the accused's guilt. This high standard exists to protect individuals from wrongful conviction.

Balance of probabilities is the standard used in civil cases, but it also applies when an accused person raises certain defences in criminal cases. When the accused must prove a defence (such as mental impairment), they need to show that it is more probable than not that the defence is valid. This is a lower standard than "beyond reasonable doubt."

Parties to a criminal case

Criminal cases involve two main parties, and understanding their roles is essential for comprehending how the criminal justice system operates.

The accused

The accused is the person who has been charged with allegedly committing a criminal offence. It's important to note that being accused does not mean the person is guilty - they remain innocent until proven or pleading guilty. The accused has the right to defend themselves against the charges and to present evidence in their favour.

The prosecution

The prosecution consists of the lawyers and personnel responsible for bringing the criminal case against the accused. Importantly, the prosecution acts on behalf of the state or the Crown, not on behalf of the victim. The prosecution team includes the prosecutor who presents the case in court.

This reflects an important principle: criminal cases are about the state enforcing its laws to protect society, not about individual victims seeking compensation or revenge.

The role of the victim

While a person or company may be the victim of the crime, they are generally not a party to the criminal case. The case is between the prosecution (representing the state) and the accused. However, the victim may participate in the case as a witness for the prosecution, providing evidence about what happened.

Types of offences

Criminal offences in Victoria are classified into two main categories based on their seriousness. This classification determines which court will hear the case and what procedures will be followed.

Summary offences

Summary offences are minor criminal offences. They have several key characteristics:

• They are generally heard before a magistrate in the Magistrates' Court
• No jury is involved - the magistrate decides questions of both fact and law
• They are established in various statutes, including the Summary Offences Act 1966 (Vic)
• Common examples include minor theft, drink-driving, and minor assaults

The less serious nature of these offences means they can be dealt with more quickly and with less formal procedures than serious crimes.

Indictable offences

Indictable offences are serious criminal offences. Their characteristics include:

• They are generally heard before a judge and a jury in the County Court or Supreme Court of Victoria
• A jury (an independent group of people chosen at random) determines questions of fact and reaches a verdict (decision)
• The judge determines questions of law and, if the accused is found guilty, decides on the appropriate sanction
• If the accused pleads guilty, there is no need for a jury trial, as the jury's role is to determine guilt
• Many indictable offences are found in the Crimes Act 1958 (Vic)
• Examples include arson, murder, and manslaughter

Indictable offences heard and determined summarily

Some indictable offences can be heard in the Magistrates' Court as if they were summary offences. These are known as indictable offences heard and determined summarily. This option exists for certain less serious indictable offences.

Key points about this category:

• In Victoria, a magistrate may hear any offence punishable by no more than 10 years' imprisonment
• Examples include obtaining property by deception or destroying property where the amount involved doesn't exceed $100,000
• The accused must give their consent to have the case heard in the Magistrates' Court
• Without this consent, the case would proceed to a higher court with a judge and jury

This category allows the justice system to deal with some indictable offences more efficiently while still respecting the rights of the accused.

Sanctions

When a person pleads guilty or is found guilty of a criminal offence, the court imposes a penalty or sanction. In Victoria, the available sanctions are set out in the Sentencing Act 1991 (Vic).

Types of sanctions

Imprisonment is the most severe sanction and is considered the sanction of last resort. It requires the offender to spend a specified period of time in prison. Courts will generally only impose imprisonment when other sanctions are deemed inappropriate given the seriousness of the offence and other relevant factors.

A community correction order (CCO) is a flexible, non-custodial sanction. This means it does not involve a prison sentence. Instead, the offender serves their sanction in the community while complying with certain conditions. These conditions might include:

• Not reoffending for a specified period
• Performing unpaid community work
• Undertaking treatment and rehabilitation for alcohol or drug addiction
• Attending counselling or rehabilitation programs

A fine is a sanction that requires the offender to pay an amount of money to the court. Fines are commonly used for less serious offences and where imprisonment would be inappropriate.

Case study: R v Eckersley