Criminal Law and Procedure (LAWS50034)

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.

Indicative list of principal topics:

• 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.