What do you need to do?
The following is just a suggested approach, not a formula:
- Think of an area of law in need of reform
o What was the law previously and why does it need reform?
- Set out the text of the law
o What is the AR?
o What is the MR?
o Any Defences?
 Why
- What is the justification for this regulation of behaviour? (A good area to
use the theorists).
o What are the consequences for the individual?
o What are the consequences for the public?
o Counter-arguments.
- What is the sentence?
o Which sentencing objectives are being achieved?
How much research do you need to do? (from Kathy Laster)
- Need to understand the general framework of NSNF offences against
the person- where does your crime fit into the architecture??
- Students will be expected to have 'researched' their new
offence/reform in the light of the existing legislation. As with any new
law, you should also make sure that what they propose is not already
available (and if it could be caught by existing provisions..and if so,
how can you justify creation of a specific named offence?
- You might like to look at possible precedents in other jurisdictions
- You should know if there has been any major proposal for reform of
this already eg Law Reform reports..
- Referencing can afford to be 'light' and abridged since they are doing
the question in an exam…just enough to recognise their source eg
VLRC 1992 Report etc..
‘Policy Essentials’ – Things that can (and probably should) be included in most
answers:
The Legal Theorists – Personal Freedom and the Criminal Law
Mill:
-
High value on personal freedoms
The sole end for which mankind is warranted to interfere with the liberty
of the individual is self-protection
-
The criminal law is a blunt tool and it should only be invoked as a last
resort
Devlin:
- The law exists for a higher purpose than the protection of the individual:
it exists for the purpose of maintaining certain standards of moral
behaviour which society requires to be observed
- The moral integrity of society must be maintained – what is ‘moral’ will be
ascertained by the standard of the reasonable person
Hart:
- Paternalism – protecting individuals from themselves
- People do not always know what is best for them – the laws must regulate
this
R v Brown:
On the interests of the individual vs. the interests of the community:
- Lord Mustill: The state should interfere with the rights of an individual to
live life as he or she may choose no more than is necessary to ensure a
proper balance between the special interests of the individual and the
general interests of the populace at large
- The majority – placed great emphasis on the protection of the public
interest
S 5(1) of the Sentencing Act
Here you will find some good guidance on the purposes of the criminal law:
- Just Punishment (Retribution)
- Deterrence (specific and general)
- Rehabilitation
- Denunciation
- Protection of the Community
Mental States
Objective vs. Subjective
- Why do we need objective tests?
o To test the D’s subjective beliefs against the values and
standards of the community
o What about morally obtuse people, should they get to escape
liability?
o Which theorists would agree?
- What are the benefits of subjective tests?
o Dealing with the criminal law and the right to liberty
o When might a party not act reasonably? Self-Defence (Royall’s
case), Familiy violence
Policy Topics – possible areas of the law in which you could base your crime:
The following are just some general suggestions about current policy issues in the
current criminal law. They are a starting point only and have been compiled to give
you an idea about what areas you might choose to change by creation of your new
law. Feel free to consider these issues, but you must do so with regard to the actual
task you have been asked to complete in mind.
Consent as a Defence:
Law: Inability to consent to the actual infliction of injury R v Brown
Current exceptions:
o Exceptions in relation to surgical procedures, personal
adornment (tattooing and branding), cosmetic procedures
o Sporting activities including boxing
 What about the application of force that is not ordinarily
and reasonably incidental to the sport? How do you
determine what is ‘incidental’ Pallante Stadiums
o Self determination as to medical procedures
o Parent consent on the behalf of children
 Male and Female circumcision
Should any of the exceptions become criminalized?
Is there any behaviour that is currently criminalized to which the defence of
consent should operate? See R v Brown
Reasonable Chastisement of Children
Current law:
- See R v Terry
- See also R v Jackson
- See also s61AA of the Crimes Amendment Act ‘the force must be
reasonable hacing regard to the age, health, maturity or other
characteristics of the child.’ How do we determine these standards
What are the problems with the current law? Eg:
- Studies show that the home is the most common context in which acts
of serious violence occur
- Cultural ideas that the act of violence by a man on members of his
family are not the business of the law
- What is ‘reasonable.’
Possible sources to consider:
- See the UN convention on the Rights of the Child
- S 10 of the Victorian Charter of Human Rights and Responsibilities Act
Self-defence and Family Violence + The introduction of defensive homicide
(note this does not relate to non-fatal non-sexual offences against the person –
but perhaps some of these policy issues could be applied to NFNS offenes against
the person?? Good also for general knowledge and possible application in the
substantive exam)
- Why did the government change the law of self-defence to include
family violence?
- What are the changes: introduction of 9AD (defensive homicide) and
the factors under 9AH(3)
What are the good things about it?
o Particularly in relation to how allows the court to investigate
the issues associated with family violence and battered
womens’ syndrome?
o Changing the way people view domestic violence
o Introducing penalties for behaviour that occurs ‘in the home’
and was often left ‘in the home.’
What are some negative things?
- Do you think that the changes to the law make it too easy for women
to murder their abusive husbands? Are we authorising or encouraging
homicide without requiring women to attempt to leave the situation
first?
- Would it be more appropriate to have a defence under mental
impairment – since we are looking at the psychology of the defendant?
Some key cases to consider:
o Middendorp – the case where the defendant killed his girlfriend
in the back by stabbing her multiple times. He claimed that he
believed that he was defending himself. The jury believed that
he did hold this belief (although unreasonably). He successfully
availed himself of the defence of defensive homicide.
 Is this case consistent with the purposes of the
introduction of defensive homicide? Is further reform
needed?
o Osland’s case
 If she had been tried under the new regime, do you
think the result would have been different?
o Macdonald’s case
 This case was just before the introduction of the new
regime but it was at the forefront of the judge’s mind.
 Would the result have been different after the
introduction of the new regime?
The abolition of provocation
- Who was it most commonly used by? Violent men as an excuse for
anger an jealousy.
- What sort of message did it send to society?
- Could it be reformed and reintroduced to be more applicable to
modern society?
- Who could use the defence today if it were introduced?
Intoxication
Current law:
- Under the common law (O’connor) consent does not operate as a
defence
- Under s 9AJ (1) whenever the standard is reasonableness – then the
test is of the reasonable person who is not intoxicated. Unless the
person’s intoxication is not self-induced.
- Intoxication can apply to issues of voluntariness – in some cases
where there is ‘gross intoxication’ a person’s actions cannot be
considered to be consciously willed.
Proposed changes:
- Should the law be changed to create a defence of intoxication?
- Should the law be changed to prevent intoxication from being used to
prevent AR from being established? See Barwick CJ in R v O’Connor
- Should there be a new law criminalizing certain types of intoxication?
Issues:
- If a person allows himself/herself to become drunk then should he/she be
allowed to escape liability?
- Protection of the community?
- Rights of the individual?
- Consider O’connor; Majewiski
Exam Tips:
Preparation:
- Prepare your notes as early as you can so that you can do as many
practice exams as you can.
- Make sure you correct your exam
- I find it useful to start by summarising the cases (including the facts)
and then placing the main principles from the case in my summary
notes, which are the notes I use to attack the problem.
- Try doing exams to time – and calculate your time to be spent on each
question (according to number of marks assigned) before you go into
the exam room.
During the exam:
- Use your reading time effectively – read the facts carefully, and read
the question carefully. Make sure you have a clear idea in mind as to
whom you have to advise.
- Plan your answer: spot the crime, and spot potential areas of difficulty
and plan your ‘sequence’ of answer.
- In answering each question make sure you not only state the principle,
but apply it to the facts. Always try to argue in the alternative and
conclude (using policy if it helps you to get an answer one way or the
other).
- Stick to your time limits.