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Jeremy Gans
MODERN CRIMINAL LAW OF AUSTRALIA SECOND EDITION
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This text provides students and practitioners with a detailed understanding of the common law, traditional code and model code systems
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PUBLICATION DATE: Dec 2016 FORMAT: Paperback* ISBN: 9781107565975 *also available as an eBook
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ABN 28 508 204 178
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MODERN CRIMINAL LAW OF AUSTRALIA This second edition of Modern Criminal Law of Australia builds on the unique, award-winning approach, and retains the approachable and accessible structure and writing style, of the first edition. It emphasises the importance of statutory interpretation, official discretion, element analysis and sentencing in Australian law, in order to appreciate the meaning and effect of offence provisions. This textbook satisfies the Priestley 11 requirement for Criminal Law and Procedure study in Australia. Its insightful approach provides students and practitioners with a detailed understanding of the common law, traditional code and model code systems, as well as the skills to practice law anywhere in Australia.
PUBLICATION DATE: Dec 2016 FORMAT: Paperback ISBN: 9781107565975 *also available as an eBook
AUTHOR
TABLE OF CONTENTS
Jeremy Gans is a Professor at Melbourne Law School. He has taught courses on criminal law, evidence law, criminal procedure, sentencing law and expert evidence. In 2007, he was appointed as the first human rights adviser to the Victorian Parliament’s Scrutiny of Acts and Regulations Committee, and he has acted as a consultant to that Committee’s review of the Victorian Charter.
1 Words
7 Standards
2 Choices
8 Groups
In 2010, he was made a fellow of the Australian Academy of Law, and in 2013 he was awarded a National Citation for Outstanding Contribution to Student Learning. He is admitted to practice in the Supreme Court of Victoria.
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Has a statutory interpretation focus this book teaches the subject through understanding of the statutes, not necessarily the cases Leaves students able to deal with any offence and any future statutory changes Allows instructors to teach important new categories of offences as core topics. These topics include environmental offences, terrorism and taxation offences Focuses on Federal or nation-wide offences. This allows the text to overcome the ‘common law’ and ‘code’ States issue Criminal procedure is fully integrated into this text Uses language that is easily accessible and engaging for students
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1.1 Introduction 1.2 The problem of word 1.3 Reading statutes 1.4 Reading criminal statutes 1.5 Example: Spirited words 1.6 Summary
2.1 Introduction 2.2 The problem of choices 2.3 Policing choices 2.4 Prosecuting choices 2.5 Regulatory choices 2.6 Example: Cosmetic choices 2.7 Summary
3 Conduct
3.1 Introduction 3.2 The problem of conduct 3.3 Responsibility for conduct 3.4 Lack of responsibility for conduct 3.5 Example: Unburdened conduct 3.6 Summary
4 Results
4.1 Introduction 4.2 The problem of results 4.3 Responsibility for results 4.4 Lack of responsibility for results 4.5 Example: Torrenting results 4.6 Summary
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Modern CriMinal law of australia
This second edition of Modern Criminal Law of Australia builds on the unique, award-winning approach, and retains the approachable and structurecommon law and statutory rules banning judges from considering Thisaccessible section examines and writing style, of the first edition. particular factors when assessing offence seriousness. It first examines general laws against It emphasises the importance of statutory interpretation, official discretion, discrimination (6.4.1), then rules against sentencing on the basis of unproven crimes (6.4.2), element analysis and sentencing in Australian law, in order to appreciate and finally limitationsthe arising from particular regulatory schemes (6.4.3). meaning and effect of offence provisions. Extracts from legislation are highlighted and, new to this edition, current and pending problems in Australian criminal 6.4.1 conclude Discriminatory factors law are separately identified and investigated. Worked examples each chapter and provide readers with a greater understandingSentencing of the application decisions and are potentially subject to a variety of anti-discrimination laws, notably practicalities of criminal law. the federal Racial Discrimination Act 1975, which regulates distinctions on the ground of Modern Criminal Law of Australia satisfies the Priestley requirement fornational or ethnic origin’.110 However, such rules do not prevent sen‘race,11colour, descent or Criminal Law and Procedure study in Australia. Its insightful approach provides tencing judges from considering a variety of characteristics of offenders, including their race:111 students and practitioners with a detailed understanding of the common law, same sentencing principles are to be applied, of course, in every case, irtraditional code and model code systems, as well as the skillsThe to practice law respective of the identity of a particular offender or his membership of an ethnic anywhere in Australia.
5 Circumstances
5.1 Introduction 5.2 The problem of circumstances 5.3 Responsibility for circumstances 5.4 Lack of responsibility for circumstances 5.5 Example: Searching circumstances 5.6 Summary
or other group. But in imposing sentences courts are bound to take into account,
Jeremy Gans is a Professor at Melbourne Law School. He has taught courses with on those principles, all material facts including those facts which in accordance criminal law, evidence law, criminal procedure, sentencing lawexist and only expert evi- of the offender’s membership of an ethnic or other group. by reason dence. In 2007, he was appointed as the first human rights adviser to the Victorian cana be relevant to assessing not only the suitability of a particular punParliament’s Scrutiny of Acts and Regulations Committee, Group and hemembership has acted as ishmentInbut also he offence consultant to that Committee’s review of the Victorian Charter. 2010, was seriousness. In Neal v R, a sentencing judge imposed a two-month sentence on awarded an offender made a fellow of the Australian Academy of Law, and in 2013 he was a who swore at and spat on the owner of a store on his reserve during anHe argument about race relations, stating:112 National Citation for Outstanding Contribution to Student Learning. is admitted to practice in the Supreme Court of Victoria. Violence is something in recent times which has crept into Aboriginal communities. I blame your type for this growing hatred of black against white. You are not giving true representation as a leader to the people who voted you their leader. As a magistrate I visit four to five communities, and I can say unequivocally that the majority of genuine Aboriginals do not condone this behaviour and are not desirous in any shape or form of having changes made. They live a happy life, and it is only the likes of yourself who push this attitude of the hatred of white authority, that upset the harmonious running of these communities.
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Justices Murphy and Brennan of the High Court disagreed, holding that the cultural context (both in terms of the dire conditions of the reserve and the fact that the crimes occurred during political advocacy) actually mitigated the seriousness of Neal’s crime.113 There has been considerable recent controversy about Australian sentencing judges 8/5/16 when 10:05 PM considering traditional laws assessing offence seriousness. In Hales v Jamilmira, the
6 Sentences
110 Racial Discrimination Act 1975 (Cth), s9, which makes it unlawful for a ‘person’ (including any sentencing judge) to do any ‘act’ (including sentencing) based on such a distinction with the effect of nullifying the enjoyment of a human right (including liberty and property rights typically limited by punishment). See also s10, barring race discrimination due to state or territory laws. 111 Neal v R [1982] HCA 55; (1982) 149 CLR 305, 326 (Brennan J). 112 Neal v R [1982] HCA 55; (1982) 149 CLR 305, 325. 113 Neal v R [1982] HCA 55; (1982) 149 CLR 305, 316–18 (Murphy J), 326 (Brennan J). A statutory majority of the court (with a reduced bench due to the surprise death of Aickin J) overturned the Queensland Court of Appeal’s sentence of six months, restoring the original sentence of two months. Justices Murphy and Brennan would have overturned the two month sentence as well.
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6.1 Introduction 6.2 The problem of sentences 6.3 Assessing offence seriousness 6.4 Limits on assessing offence seriousness 6.5 Example: Piercing sentences 6.6 Summary
7.1 Introduction 7.2 The problem of standards 7.3 Standards of risk 7.4 Standards of morality 7.5 Example: Jesting standards 7.6 Summary
8.1 Introduction 8.2 The problem of groups 8.3 Responsibility for others 8.4 Lack of responsibility for others 8.5 Example: Sharing groups 8.6 Summary
9 Failures
9.1 Introduction 9.2 The problem of failures 9.3 Responsibility for failures 9.4 Lack of responsibility for failures 9.5 Example: Browsing failures 9.6 Summary
10 Exceptions
10.1 Introduction 10.2 The problem of exceptions 10.3 Exceptions from responsibility 10.4 Lack of exceptions from responsibility 10.5 Example: Slight exceptions 10.6 Summary
11 Victims
11.1 Introduction 11.2 The problem of victim 11.3 Victims and offences 11.4 Victims and responsibility 11.5 Example: Tweeting victims 11.6 Summary
12 States
12.1 Introduction 12.2 The problem of states 12.3 States and offences 12.4 States and responsibility 12.5 Example: Pirate states 12.6 Summary