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There are many ways in which to construct the field of criminal law: it is related to public law in as much as it concerns the relation between the state and the citizen in democratic societies; it is related to the law of obligations (contracts and torts) but is concerned with public rather than private obligations; and it is related to legal theory in as much as it concerns the nature of the law that attributes responsibility. With this in mind, the field of criminal law is typically divided into substantive criminal law (the definition, prohibition and regulation of criminal activity by law) and criminal procedure (the processes, rules and principles of law governing the institutions of investigation, prosecution, trial and appeal within criminal jurisdictions). The central question is thus the question of attribution of responsibility.
The subject's approach is to emphasise the breadth of offences in the statute book and decision-making throughout the criminal justice system, including the role of courts in interpreting offence provisions, developing general doctrines and managing individual cases. These topics are developed through in-depth discussion of particular case studies (of specific offences, criminal justice policy debates, theoretical frameworks and/or contemporary or historical instances of criminal law). In doing so, the overall concern is to draw out the links and disjunctions within criminal law, between criminal law and other areas of law and between law and other fields of social regulation.
The specific topics covered include:
- The formal structure of substantive criminal law, including the analysis of offences in terms of elements and the application of principles of statutory interpretation to offence provisions;
- The institutional arrangements of criminal procedure and their respective rationales, including the mechanisms for judicial and political control of the outcomes of those arrangements;
- Substantive offences – includes a selection of offences against the person and offences against property, as well as detailed studies of offences that have been the subject of critical debate or law reform efforts;
- Defences, including both defences that are generally applicable to offences and offence-specific exculpatory regimes; and
- Modes of criminal responsibility, including extensions of criminal responsibility, whether achieved through novel offence forms or general doctrines of criminal law.
In each instance, the subject addresses Australian criminal law, exploring the links and differences between the various domestic regimes and their place within comparative jurisdictions, whether local, foreign or international.
Intended learning outcomes
Students who successfully complete this subject will have:
The ability to engage independently and collaboratively in a detailed and comprehensive analysis of an offence provision that they have not encountered before, including explaining in clear terms:
- A detailed description of the behaviour that is and is not prohibited by the offence provision;
- The responses that an accused may make to a charge of breaching that provision;
- The impact of discretionary criminal justice on the outcome of a prosecution for the offence.
- The effect of general doctrines of complicity and preparatory offences on the scope of the provision; and
A sophisticated understanding of the following areas of Australian criminal law regimes:
- The aims, structure and operation of the criminal justice system;
- The structure and impact of the rules and institutional arrangements of criminal procedure;
- The legal construction of criminal offences, defences and associated principles of criminal liability.
- The general principles of substantive criminal law; and
A specialist capacity, in the context of historical and contemporary scenarios, to engage with and critically apply:
- The major theories of criminal responsibility;
- Key approaches to contemporary criminal law reform; and
- Controversies in current theories of criminal law.
Upon successful completion of the subject, students will have developed the skills in the following areas:
- Specialist understanding of the major statutes, decisions and secondary sources relevant to Australian criminal law regimes, including a detailed knowledge of significant historical and comparative sources;
- Advanced understanding of the major theoretical and political controversies underlying Australian and comparative criminal law and procedure;
- Excellence in formulating relations between ideas and institutions in Australian criminal justice;
- Creatively analysing novel offence provisions from a variety of perspectives, including exploring questions of their interpretation through original research, an examination of the impact of discretion in criminal process and the application of general doctrines of criminal law; and
- Formulating and articulating sophisticated technical and critical analysis, both orally and in writing, directed at legal and lay audiences.
Last updated: 18 December 2020