Waller & Williams criminal law : text and cases

Full Title
Copyright
Preface
Acknowledgments
About the Authors
Table of Cases
Table of Statutes
Abbreviations
Table of Contents
	Chapter 1 Foundations of Criminal Law
		Introduction
		What is a Crime?
			A procedural definition of crime
			A substantive conception of crime
		Why Should Something Be Made a Crime?
			Prevention of harm
			Vindication of moral values
			Expression of legitimate public concern
		Why Punish Crimes?
			Deterrence
				Deterrence and certainty
			Incapacitation and the protection of the community
			Rehabilitation and reform
			Retribution
			Denunciation and censure
	Chapter 2 The Legal Framework of the Criminal Law
		Sources of the Criminal Law
		Elements of Criminal Offences
			Actus reus
				Conduct, omissions, circumstances and results
				Causation
				Voluntariness
			Mens rea
				Subjective blameworthiness
				Evidence of the mental element
				Subjective and objective standards
				Modes of criminal liability
				Types of mens rea
			Coincidence of actus reus and mens rea
		Defences and Exceptions
		Different Kinds of Criminal Offences
		Who Can Commit Crimes?
			Infancy
			The presumption of sanity and fitness to plead
			Corporations
			Immunities — the Sovereign, etc
		Criminal Procedure
			The investigation of criminal offences
			Arrest, charge, prosecution and infringement notices
			The criminal trial process
			Sentencing
			Appeals
		The Burdens and Standards of Proof
			Law and fact
			The two burdens
				The legal burden
				The evidential burden
				Incidence of the evidential burden
				Incidence of the legal burden
			Standard of proof
				The ‘golden thread’
				Statutory exceptions
				Beyond reasonable doubt
		Certainty, Discretion, Mercy and Motive in the Criminal Law
			Certainty and codification
			The role of discretion
			The prerogative of mercy
			Motive
	Chapter 3 Assault and Related Offences
		Introduction
		Common Assault
			The elements of unlawfulness
			Intention and recklessness
			The victim’s mental state
			Unloaded guns
		Aggravated Assault
			Assaults accompanied by particular intentions or performed in a particular way
			Assaults on persons of a particular class
			Assaults resulting in harm of a particular kind: New South Wales
			Victorian assault legislation
			Domestic violence: partners and children
			Stalking
			Ritual circumcision
		Elements of Assault
		Consent
			Limits of consent
			Sexual diseases
			Boxing and other contact sports
			Surgery and body modifications
		Other Offences against the Person
			Affray
			False imprisonment: kidnapping
	Chapter 4 Sexual Offences
		Introduction
		Common Law Rape
		Statutory Provisions
		Sexual Penetration
			Types of sexual penetration
			Continuing penetration
			The issue of sexual identity
			Intention as to sexual penetration
		Consent and its Absence
			Consent as free agreement
			Consent-negating circumstances
			The communicative model of consent
			Jury directions on consent
			Mistake, deception and consent
			Abolition of spousal immunity
		The Fault Element of Rape
			Common law subjectivism
			Knowledge and recklessness
			Absence of reasonable belief, or reasonable grounds for belief, in consent
				Assessing reasonableness of belief in consent
				Reasonableness and taking steps to find out whether the other person consents
				Intoxication and reasonableness
				Mental illness and reasonableness
				The relevance of awareness of consent-negating circumstances
		Rape by Compelling Sexual Penetration
		Aggravated Offences
		Other Sexual Offences
			Sexual and indecent assault
			Sexual offences against children
			Sexual offences against persons with cognitive impairment
			Incest
			Bestiality and necrophilia
			Offences associated with prostitution
			Sexual servitude
			Decriminalisation of homosexual conduct
		Proposed Reforms to Victorian Sexual Offences
	Chapter 5 Murder
		Some General Propositions about Criminal Homicide
			‘Of sound memory and of the age of discretion’
			‘Unlawfully’
			Suicide
			Euthanasia — assisting certain suicides
			Infanticide
		Actus Reus
			‘Kills’
			‘Any reasonable creature in being’
			Abortion
			Child destruction
			Death
			‘Under the King’s peace’
			‘The death taking place within a year and a day’
			Act and causation
		Malice Aforethought (Mens Rea)
			Introduction
			Grievous bodily harm
			Transferred malice
			Express malice
			Contemporaneity
			Proof of express malice
			Constructive malice
		Lawful Homicide
	Chapter 6 Voluntary Manslaughter
		Introduction
		Infanticide
		Substantial Impairment by Abnormality of Mind
		Excessive Self-Defence (Defensive Homicide)
		Provocation and Extreme Provocation
			Introduction: rationale for provocation
			Criticisms and reforms
			The reformed partial defence of ‘extreme provocation’ (NSW)
				Procedural issues
				Trigger for the loss of self-control
				The ‘trigger’ caused the accused to lose self-control
				The ordinary person test
	Chapter 7 Involuntary Manslaughter
		Introduction
			Unlawful and dangerous act manslaughter
			Gross negligence manslaughter
			Gross negligence manslaughter: negligent omissions
		Unlawful and Dangerous Act Manslaughter
			‘One punch’ law reforms
		Negligent Manslaughter
			Negligent act
			Negligent omission
			Defining negligence
		Examples of Negligent Manslaughter
			Culpable driving causing death
			Industrial manslaughter
		Involuntary Manslaughter — a Critique
	Chapter 8 Property Offences: New South Wales
		Introduction
		A Brief History
		Simple Larceny and Larceny as a Bailee
			Introduction
			Actus reus
				The requirement of a taking and carrying away
				Property capable of being stolen
				In the possession of another
				Without the consent of the person in possession
			Mens rea
				Intention to permanently deprive
				Claim of right
				Fraudulently
			Temporal coincidence
		Offence of Fraud
			Introduction
			Actus reus
				Deception
				Causation
				The consequence of the fraud
			Mens rea
				Intentional or reckless deception
				Dishonestly
				Intention to permanently deprive
			Temporal coincidence
		Robbery, Burglary, Blackmail and Receiving
			Robbery
				Robs or assaults with intent to rob
				Steal from the person
				Burglary
				Blackmail
				Receiving stolen property
	Chapter 9 Property Offences: Victoria
		Introduction
		Theft
			Actus reus
				Property belonging to another
				The appropriation
			Mens rea
				The intent to deprive permanently
				Dishonestly
		Obtaining by Deception
		The Relationship Between Theft and Obtaining Property by Deception
		Robbery, Burglary and Blackmail
	Chapter 10 Drug Offences
		Introduction
		The Statutory Provisions
			The structure of the New South Wales legislation
		Some Problems of Interpretation
			Territoriality
			Possession
			Trafficking/supply
		The Mental Element Required for Drug Offences
			State and federal offences
		Sentencing for Drug Offences
		Policy Options for the Future
	Chapter 11 Attempts
		Introduction
		The Nature of an Attempt
		Attempts and Sexual Assault
		Impossibility
			Legal impossibility
			Factual impossibility
				The principle in R v Smith
				Rejection of the rule in R v Smith
		Other Inchoate Crimes
			Incitement
			Crimes of preparation
	Chapter 12 Extending Criminal Liability: Participation in Crime
		Introduction: The Problem of Complicity in Crime
		History and Outline of the Rules of Complicity
		Principal Offenders: Joint Criminal Enterprise
		Withdrawal
		Principal in the First Degree: Doctrine of Innocent Agency
		Accessorial Liability
			Abettors: accessories before the fact and principles in the second degree
				Actus reus for abettors
				Mens rea for abettors
				Knowledge of the essential matters of an offence
				Intention to aid, abet, counsel or procure
		The Doctrine of Extended Common Purpose
			The relationship between joint criminal enterprise, accessorial liability, the doctrine of common purpose and the doctrine of innocent agency
		Critical Commentary on Accessorial Liability
		Abandonment of Criminal Participation
		The New Law of Complicity in Victoria
		Accessories After the Fact
		Crimes Involving Participation Otherwise Than as Principal or Accessory
			Subornation and perjury
			Misprision: concealing an offence
			Unlawful assemblies
				Rout
				Riot
				The Riot Act
			Association for terrorist purposes
		Conspiracy
			Introduction
			Conspiracy to defraud
			Conspiracy to corrupt morals and effect a public mischief
			Elements of criminal conspiracy
			Evidential and procedural problems in criminal conspiracy
			The justification of conspiracy
			Conspiracy in Victoria
			Some Victorian conspiracy cases
	Chapter 13 Strict Liability and Mistake
		Introduction
		Strict Liability — an Introduction
		He Kaw Teh v R
			Examples of cases applying He Kaw Teh
		The Doctrine of Mistake
			Parameters of the doctrine of mistake
		The Boundaries of the Defence of Mistake
			Fact and law
			Misstated law and mistake of law
			The future of ignorantia juris
			Analysis of strict liability offences
			Seeking a middle ground
	Chapter 14 Self-Defence, Necessity, Emergency, Duress, Superior Orders and Marital Coercion
		Introduction
		Self-Defence
			Common law self-defence
			Statutory self-defence
				Current law of self-defence: statutory provisions in New South Wales
				Current law of self-defence: statutory provisions in Victoria
		Necessity and Sudden or Extraordinary Emergency
			Common law necessity
			Development of the defence of necessity
			The statutory defence of sudden or extraordinary emergency
		Duress
			Common law duress
				The general defence
			Duress and murder
			Statutory duress
		Necessity and Duress: Critical Comment
		Superior Orders
		Marital Coercion
	Chapter 15 Mental Impairment and Related Defences
		Introduction
		Cases on Mental Impairment and Automatism
		Some Comments on Mental Impairment and Related Defences
			Scope of the mental impairment defence
			The burden of proof
			Disposition of mentally ill offenders
			The defence of substantial impairment by abnormality of mind
			Unfitness to stand trial
		Psychopathy, Mental Illness and Preventive Detention
			The development of preventive detention regimes in Australia
			Recent developments in preventive detention
	Chapter 16 Intoxication
		Introduction
		The Law in New South Wales
		The Decision in R v O’Connor
		Involuntary Intoxication
		Statutory Provisions — New South Wales and Victoria
		The Future of the Law on Intoxicated Offending
Bibliography
Index