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Criminal law takes place in institutions. This subject studies the various public institutions that make up the official landscape of contemporary criminal law. It moves from police and prosecution offices, via anticorruption agencies and Royal Commissions, to courts and their procedures of trial and appeal, and thence to correctional prisons and allied custodial environments such as offshore detention regimes. It concludes with a consideration of criminal law reform bodies. Throughout, the central theme is the laws of criminal procedure and the ecology of institutional forums and officials that compose contemporary law. As French CJ remarked in his 2016 speech “Criminal Law in the 21st Century”, “criminal law engages the legal system generally …. criminal lawyers cannot live in silos.”
The studies of criminal institutions provide an in-depth treatment of their complex problems, procedures and forms of knowledge. Four specific themes provide orientation:
- the criminal jurisprudence of legal procedures, officials and fora;
- the ways in which the institutions of criminal law engage the legal system more generally, and lawful practices specifically.
- relations of institution, procedure and questions of criminal liability
- comparative and transnational dimensions of the institutions and procedures of criminal law
The course teaching has three parts. The first part concerns institutions and procedures of investigation, inquiry, and prosecution. Exemplary institutions are Police Services, Public Prosecution Offices, as well as Crime Commissions and Royal Commissions. Illustrative procedures concern transnational policing as well as the audio-visual recording of interviews and confessions; anti-corruption agencies and their implications for the accusatorial character of the criminal trial process as well as the privilege against self-incrimination. Public Prosecution Offices are relatively recent institutions and will be studied comparatively. Legal Aid Commissions and agencies provide a contrasting example of criminal defence lawyering.
The second part addresses institutions and procedures of adjudication. The exemplary institution is the Criminal Court. The forms of adversarial and inquisitorial jurisdictions, as well as the plural jurisdictions of specific criminal courts, are introduced and studied. Specific procedures will be selected for in-depth treatment, such as trial by jury (including jury directions, and provisions for trial by judge alone), criminal appeals (both conviction and sentence appeals), the design of indigenous courts and other contemporary criminal courts.
The third part addresses the institutions and procedures of detention. The exemplary institution is the Prison. Beyond the correctional prison and its allied procedures of bail and parole, detention extends to institutions for the criminally insane, for young offenders, and the detention of asylum seekers. Illustrative examples will be selected for close reading. These may include – Forensicare and mental impairment, the litigation regarding the detention of juveniles in Barwon prison, an adult prison; Don Dale and the Royal Commission into the Protection and Detention of Children in the Northern Territory; deaths in custody and crimmigration; parole reform and recent high profile cases; security, detention and fair trial during terrorism trials.
By way of a conclusion, the final part concerns Law Reform Bodies. Illustrative topics will be drawn from a current law reform inquiry that addresses the procedures and institutions of criminal law.
Invited speakers from a sample of the above institutions will supplement the in-class discussion and close reading of the essential readings.
Intended learning outcomes
A student who has successfully completed this subject should have an advanced understanding of the institutions and procedures of criminal law, as well as be able to critically analyse, engage with, and evaluate to a high standard the bodies of knowledge and practices that compose this specialised area of legal study. This specifically includes an expert understanding, analysis and evaluation of:
- The various institutions that make up the contemporary landscape of criminal law, including but not limited to the institutions of police, crime commissions and royal commissions, public prosecution and defence lawyering, courts, prisons and custodial environments, as well as criminal law reform bodies;
- Institutions of investigation, inquiry and prosecution; institutions of adjudication with specific reference to trial and appeal, institutions of detention and their allied custodial environments, and law reform institutions;
- The traditions of adversarial and inquisitorial forms of criminal procedure, as well as their implications for the current conduct and understanding of criminal law.
- Specific case studies of criminal procedures, such as transnational policing, the privilege against self-incrimination, committal procedures, trial by jury, conditions of detention and fair trial, the history of the appellate jurisdiction in criminal law, miscarriages of justice and the rise of sentence appeals, parole processes and questions of liability.
- Criminal jurisprudence concerned with the institutionalisation of criminal law, its legal procedures and forms of knowledge;
- The conduct, forms and offices of various criminal institutions and their relations to legal systems; and specific lawful practices;
- The differentiated ways in which institutions of criminal law shape questions of criminal liability, evidence and procedure;
- The complex interaction between national and transnational forms of selected institutions studied, with specific in-depth comparative studies.
In addition, a student who has completed the subject will have obtained:
- A rich and nuanced appreciation of the complexity and variety of the current scholarship on specific criminal institutions, and the jurisprudence of procedure;
- A specialised and integrated knowledge of the laws of criminal procedure, and their comparative and transnational dimensions;
- In-depth knowledge of the institutional ecology of criminal law and in depth research on at least one specific criminal institution;
- The ability to analyse complex problems of criminal institutions and procedures from a variety of perspectives, as well as the capacity to exhibit a well developed judgment on the worth of those perspectives for scholarly understanding;
- The capacity to independently conduct further specialised research in criminal law, whether in higher education or in professional practice.
- Specialist knowledge in legal institutions concerned with crime and criminal law;
- Investigation, analysis and evaluation of the institutional and theoretical issues that are engaged by criminal procedure;
- Ability to respond to and effectively communicate – in both oral and written forms - cogent and nuanced arguments concerning the variety of ways through which criminal law is institutionalised;
- Conducting in-depth research independently and at a high level, including the ability to generate complex ideas and form well-developed judgments as to the worth of those ideas for thinking about and understanding institutions in criminal law;
- Writing up research which presents an extended argument that is informed by and integrates current scholarship in criminal law and the institutional study of law; and
- Exercise professional judgment in responding to the questions of criminal law raised by the social practices of legal institutions.
Last updated: 2 December 2019