Documente Academic
Documente Profesional
Documente Cultură
This
Reading
Guide
should
be
read
in
conjunction
with
the
2016
Unit
Guide
and
2016
Tutorial
Guide
for
this
subject.
Most
cases
on
this
reading
guide
are
extracted
or
mentioned
in
WW,
(Waller
&
Williams,
Criminal
Law
Text
and
Cases
(Butterworths,
12th
Ed,
2012)
All
section
references
are
to
the
Crimes
Act
1958
(Vic)
unless
otherwise
indicated.
On
completion
of
the
10
percent
online
quiz
in
Week
4,
students
will
also
be
provided
with
an
Index
of
Key
Resources
and
details
of
2015-2016
legislative
amendments
for
criminal
procedure.
This
material
supplements
the
sources
listed
in
the
Reading
Guide.
The
readings
in
this
Reading
Guide
are
prescribed,
unless
otherwise
indicated.
Students
are
expected
to
have
read
the
prescribed
materials
ahead
of
each
class
and
are
strongly
advised
to
stay
ahead
of
their
reading.
Any
readings
marked
Further/additional/optional
reading
are
discretionary.
Understandably,
the
more
you
read,
the
more
you
will
gain
from
the
course.
UNIT
SCHEDULE
This
is
an
approximate
timetable.
The
coverage
and
schedule
of
topics
may
vary
between
each
lecture
steam.
As
well
as
weekly
lectures,
all
students
will
be
allocated
into
tutorials
for
this
unit.
There
are
no
tutorials
in
Week
1.
Starting
Week
2
or
Week
3
depending
on
the
cycle
of
tutorials
to
which
you
have
been
allocated,
tutorials
will
take
place
every
second
week,
except
Week
12
when
there
will
be
a
combined
revision
tutorial
for
both
cycles
or
as
advised
by
your
tutor.
Students
need
to
ensure
that
they
are
aware
of
the
their
tutorial
allocation
and
that
they
attend
the
correct
tutorials.
*
Please
note:
sometimes
tutorials
will
be
covering
topics
that
have
not
necessarily
been
finished
in
lectures
depending
on
individual
stream
times.
This
is
unavoidable
due
to
constraints
in
timetabling.
Therefore,
it
is
expected
that
students
will
do
independent
preliminary
reading
for
each
tutorial
PRIOR
to
classes.
Your
co-operation
and
understanding
is
appreciated.
***N.B:
Group
refers
to
the
cycle
you
have
been
allocated
into
on
your
timetable
group
1
begins
tutorials
in
week
2,
group
2
begins
tutorials
in
week
3.
See
start
dates
on
your
timetable.
UNIT
SCHEDULE
Week
commencing
Week
Topic
Monday
29 February
Topic 1: Introduction
Topic 2: Criminal
Procedure -Themes
and Jurisdiction
Monday
7 March
Topic 2: Criminal
Procedure -Themes
and Jurisdiction
Criminal Investigation
Monday
14 March
Topic 2: Criminal
Procedure Criminal
Investigation
Criminal Prosecution
Monday
21 March
Topic 2: Criminal
Procedure Criminal
Prosecution
Sentencing
Monday 28
March
Friday 1
April
No
classes
MID SEMESTER
BREAK
Monday
4 April
Topic 3:Elements of
a Crime
CLASS TEST
Topic: Criminal Procedure
Thursday 7 April 5pm.
15 minutes reading time, 1
hour writing
time. Locations to be
advised.
Hart/Devlin debate
and the purposes of
criminal law:Group
2
Monday
11 April
Topic 4:Offences
against the Person
Common Law
TUTORIAL
PRESENTATIONS:Group 1
Sentencing and
Bail:Group 1
Monday
18 April
Topic 4:Offences
against the Person
Crimes Act
TUTORIAL
PRESENTATIONS:Group 2
Sentencing and
Bail:Group 2
Monday
25 April
Topic 5: Homicide
Murder
Monday
2 May
Topic 5:Homicide
Manslaughter
Topic 5:Homicide
Statutory Offences
Topic 6: Self-defence
and other defences
to crime.
Homicide:Group 1
Monday
16 May
11
Topic 6: Self-defence
and other defences
to crime.
Homicide:Group 2
Monday
23 May
12
Revision
Defences &
Revision:Groups
1 AND 2
Monday
9 May
Assessment
Tutorials
(fortnightly)
No tutorials in
week 1
Criminal
Investigation and
Procedure:Group 1
Criminal
Investigation and
Procedure:Group 2
ONLINE CRIMINAL
PROCEDURE QUIZ
Hart/Devlin debate
and the purposes of
criminal law:Group
1
No tutorials in midsemester break
References
Required
texts
Anthony,
T
et
al.,
Waller
&
Williams
Criminal
Law
Text
and
Cases
(12th
ed.),
Sydney:
Butterworths,
2013
(WW).
Older editions will not be up to date and may have incorrect page/paragraph references.
This
Reading
Guide
generally
makes
reference
to
WW
unless
another
textbook
covers
a
particular
area
in
more
depth
or
WW
does
not
cover
that
topic.
You
may
supplement
WW
with
any
or
all
of
the
recommended
texts
(below)
if
you
wish.
It
is
up
to
your
discretion
to
decide
how
much
use
to
make
of
these.
Fox
F&K
M&N
Fox,
R.G.
and
Deltondo,
N.
Victorian
Criminal
Procedure
(14th
ed.)
Annandale:
Federation
Press,
2015.
Finlay,
L.
and
Kirchengast,
T.
Criminal
Law
in
Australia
Lexis
Nexis,
2015.
McSherry,
B.
and
Naylor,
B.,
Australian
Criminal
Laws:
Critical
Perspectives,
Melbourne:
Oxford
University
Press,
2004.
Optional
pre-reading/for
interest
Martin
McKenzie-Murray,
A
Murder
without
Motive:
The
Killing
of
Rebecca
Ryle
(2016)
Making
a
Murderer
(Netflix
series)
Helen
Garner,
This
House
of
Grief
(2014);
Joe
Cinques
Consolation
(2004)
Sarah
Koenig,
Serial
(podcast),
season
1
Anna
Krein,
Night
Games:
Sex,
Power
and
Sport
(2013)
Prison
Songs
(SBS)
http://edutv.informit.com.au.ezproxy.lib.monash.edu.au/watch-
screen.php?videoID=861838
WW [1.1]-[1.2]
WW [1.3]-[1.14], [1.42]-[1.53]
Part
3:
Personal
Freedom
and
the
Criminal
Law
Lord
Devlin,
'The
Enforcement
of
Morals'
(Proceedings
of
the
British
Academy,
1959;
reprinted,
Oxford:
OUP,
1965)
pp1-25,
B&M
[1.125];
o HLA
Hart,
Law,
Liberty
and
Morality
(Oxford,1963)
pp
25-34
(all
extracted
online)
Additional
reading:
o B&M
[10.170];
M&N
189-190,
194-196,
200-202.
Additional
resources:
A
copy
of
the
Hart-Devlin
Debate
Encore
is
available
on
YouTube
to
enable
you
to
access
the
debate
at
any
time:
http://www.youtube.com/watch?v=qWrhEARupCg.
Part
1:
Themes
Charter of Human Rights and Responsibilities Act 2006 (Vic) ss.5, 21-22, 24, 25
Further
reading:
B&M
[1.125],
[1.160]
(b) A
discretion
based
system
o Fox
p
42
diagram
how
many
discretionary
decision
making
points
can
you
identify?
Part
2:
Jurisdiction
(a) Sources
of
Law:
state
and
federal;
common
law
and
statute
o
(b) Territory:
Fox [1.4.1]
(e) Persons
o
Children:
WW
[1.37]-[1.38],
o Children
Youth
and
Families
Act
2005(Vic)
ss.3
(see
definition
of
child),
344,
516.
Further
reading:
o Fox
[1.3.2]
(f) Time:
o
Criminal Procedure Act 2009 (Vic) ss.6,7,10, 98-99,102, 163, 211, 212
Part
3:
Criminal
Investigation
(a) Arrest
Further
reading:
o Fox
[4.2.2]-[4.2.4]
o Alderson
v
Booth
[1969]
2
QB
216
o Christie
v
Leachinsky
[1947]
AC
573
(b) Detention
(c) Warrants,
Search
and
Seizure
With
a
warrant:
Magistrates
Court
Act
1989
(Vic)
s.64
Without
a
warrant;
Crimes
Act
1958
(Vic)
s.459A
Further
reading:
o Fox
[4.2.9]-[4.2.10],
[5.2-5.3]
(d) Bail
Eligibility:
Bail
Act
1977
(Vic)
ss.3A,
4
Conditions:
Bail
Act
1977
(Vic)
ss.5,
9,
25
Application:
Bail
Act
1977
(Vic)
ss.8,
13
Further
application
for
bail:
Bail
Act
1977
(Vic)
ss.18-18AB
Applications
to
vary
bail
conditions:
Bail
Act
1977
(Vic),
ss.18AC,
18AD
Application
to
revoke
bail:
Bail
Act
1977
(Vic)
ss.18AE,
18AF
Failure
to
answer
bail:
Bail
Act
1977
(Vic)
s.30
Breach
of
conduct
condition
Bail
Act
1977
(Vic)
s.30A
Committing
an
indictable
offence
on
bail:
Bail
Act
1977
(Vic)
s.30B
Further
reading:
o
o
o
Further
reading:
o Fox
[2.7]
o
o
(ii)
Trial
Further
reading
o Fox
[8.6.5.4]
Part
5:
Sentencing
Sentence
indication:
o Criminal
Procedure
Act
2009
(Vic)
ss.60-61
(Magistrates
Court)
o Criminal
Procedure
Act
2009
(Vic)
ss.207-209
(County/Supreme
Court)
Sentencing
Options:
o Fox
diagram
p.332
o Sentencing
Act
1991
(Vic)
s.7;
Children,
Youth
and
Families
Act
2005
(Vic),
s.360,
o Dismissal:
Sentencing
Act
1991
(Vic)
s.76
o Discharge:
Sentencing
Act
1991
(Vic)
s.73
o Adjourned
undertaking:
Sentencing
Act
1991
(Vic)
ss.72,
s.75
o Deferral:
Sentencing
Act
1991
(Vic)
s.83A,
see
also
Children,
Youth
and
Families
Act
2005
(Vic)
s414
10
o
o
o
o
o
Further
reading:
o
o
o
o
o
o
o
o
Serious
and
Dangerous
Offenders;
Indefinite
Sentence
of
Imprisonment:
Fox
[9.9];
[9.11]
Compensation
for
victims
of
crime:
Fox
[9.17.1]
Judge
for
yourself
A
Guide
to
Sentencing
in
Australia
Judicial
Conference
of
Australia
https://sentencingcouncil.vic.gov.au/sites/sentencingcouncil.vic.gov.au/files/judge_for_yo
urself_a_guide_to_sentencing_in_australia.pdf
Karen
Gelb,
Purposes
of
Sentencing:
Community
Views
in
Victoria
2011
https://sentencingcouncil.vic.gov.au/sites/sentencingcouncil.vic.gov.au/files/purposes_of
_sentencing_community_views_in_victoria.pdf
Sentencing
video:
You
be
the
Judge
at
the
Sentencing
Advisory
Council
website
http://www.sentencingcouncil.vic.gov.au/virtualjudge/
11
(ii)
o Ugle
v
The
Queen
(2002)
189
ALR
22
extracted
at
WW
[4.25C],
[4.26]
o R
v
Falconer
(1990)
171
CLR
30
extracted
at
WW
[14.12C]
(iii)
(iv)
Causation:
result
crimes
vs
conduct
crimes
(see
further
Topic
5.2
(d)
Homicide)
Generally:
WW
[4.28C]-[4.29],
[4.31]
Abolition
of
year-and-day
rule:
s.9AA
o R
v
Hallett
[1969]
SASR
141,
WW
[4.28C]
o Royall
v
R
(1991)
172
CLR
378,
WW
[4.30C]
o R
v
Blaue
[1975]
1
WLR
1411
o R
v
Pagett
(1983)
76
Cr
App
R
279
o R
v
Evans
&
Gardiner
(No
2)
[1976]
VR
523
Omissions:
B&M
[3.80]
!
See
also
negligent
manslaughter.
(c)
Fault
Elements:
(Mens
Rea)
(i)
(ii)
(iii)
(iv)
(v)
Further
reading:
o
B&M [3.355]
(e)
Proving
Criminal
Liability
12
WW
[2.1]-[2.4]
R
v
Patton
[1998]
1
VR
7,
WW
[2.26C]
Summary
Offences
Act
1966
(Vic)
s.23
Crimes
Act
1958
s.320
(c)
External/Physical
Elements
of
Common
law
assault
(i)
Non-physical interference
Positive
Act/words:
o R
v
Ireland
[1997]
4
All
ER
225,
WW
[2.34
(No.
7)]
o Additional
reading:
B&M
[10.30],
[10.35],
[10.40];
Apprehension
of
Violence:
o WW
[2.7]-[2.9];
o Ryan
v
Kuhl
[1979]
VR
315
WW
[2.8]
compare
with
Brady
v
Schatzel
[1911]
St
R
Qd
206,
WW
[2.8]
o Zanker
v
Vartzokas
(1988)
34
A
Crim
R
11,
WW
[2.34
(esp
No
1
and
4)]
Conditional
Threat:
B&M
10.55,
o Rozsa
v
Samuels
[1969]
SASR
205,
WW
[2.30C]
o Tuberville
v
Savage
(1669)
1
Mod
3
(86
ER
684),
WW
[2.30C]
(ii)
Physical
Interference:
B&M
[10.95]
o Fagan
v
Metropolitan
Police
Commissioner
[1968]
3
All
ER
422,
WW
[2.23C]
o Additional
reading:
Collins
v
Wilcock
[1984]
3
All
ER
374
(d)
Fault
Elements
of
common
law
assault
(i)
Intention/Recklessness:
WW
[2.5]-[2.6]
o R
v
Campbell
[1997]
2
VR
585,
WW
[2.29C]
13
Part
2:
Offences
against
the
person
under
the
Crimes
Act
1958
(Vic)
(a)
General
outline
WW [2.17E]-[2.18E]
Cause
!
See
causation
under
Elements
of
a
crime.
(ii)
Injury
offences
(I)
o s.18
-
defined
in
s.15
(iii)
Serious
Injury
offences
(SI)
o ss.15A,
15B,
16,
17
and
24
-
defined
in
s.15
(iv)
Threat
to
Kill/Inflict
Serious
Injury
o ss.20
and
21
Intention
o ss.15A,
16,
18,
19A,
20(a),
21(a),
o R
v
Westaway
(1991)
52
A
Crim
R
336,
WW
[2.32C]
(ii)
Recklessness
o ss.15B,
17,
18,
20(b),
21(b)
o R
v
Campbell
[1997]
2
VR
585,
WW
[2.29C]
(iii)
Negligence
o s.24
(i)
Endangerment
o ss.22
and
23
o WW
[2.33C]
o R
v
Abdul-Rasool
(2008)
180
A
Crim
R
556,
WW
[2.33C]
(ii)
Stalking
o s.21A
o
WW
[2.21]
o DPP
(Vic)
v
Sutcliffe
[2001]
VSC
43
14
Further
reading:
o Chris
Davies,
Criminal
law
and
assaults
in
sport:
An
Australian
and
Canadian
perspective,
(2006)
30
Crim
LJ
151.
o Marie
Fox
and
Michael
Thomson
(2005)
'Short
Changed?
The
Law
and
Ethics
of
Male
Circumcision',
(2005)
13
The
International
Journal
of
Childrens
Rights
161.
Table
of
assaults
Unlawful
touching
or
fear/apprehension
of
immediate
force
(AR)
Injury
under
s15
(AR)
Serious
injury
under
s15
(AR)
Threat
to
kill
(AR)
Intention
(MR)
Common
law
assault
or
s.
23
Summary
Offences
Act
Recklessness
(MR)
Common
law
assault
or
s.
23
Summary
Offences
Act
Negligence
(MR)
No
offence
No offence
s.
24
Crimes
Act
No
threat
offence
No
offence
15
o
o
(b)
Statutory
homicides
(i)
(ii)
(iii)
(iv)
(v)
(vi)
o
o
(b) Kills
WW [4.12][4.14]
o
o
o
o
o
o
o
o
o
16
Part
3:
Murder
(a)
Fault
Elements
for
Murder
(i)
WW [4.32]-[4.35]
WW
[4.38][4.39]
R
v
Saunders
and
Archer
(1577)
2
Plowd
473;
75
ER
706,
WW
[4.39]
A-Gs
Reference
(No
3
of
1994)
[1998]
AC
245,
WW
[4.14]
o
o
o
o
o
Part
4:
Manslaughter
(a)
Generally
o WW
[6.4C]-[6.5]
(i)
Unlawful
o R
v
Lamb
[1967]
2
QB
981,
WW
[6.5
No.
1(a)]
o Pemble
v
R
(1971)
124
CLR
107,
WW
[6.5
No.
1(b)]
(ii)
Dangerous
o Wilson
v
R
(1992)
174
CLR
313,
WW
[6.4C]
o Crimes
Act
(Vic)
s.4A
(one
punch
law
introduced
in
2014)
(iii)
The
role
of
consent
***See
Topic
4
Part
3
above
o R
v
Stein
[2007]
VSCA
300;
WW
[2.36
No.
2]
17
WW [6.3], [6.7]-[6.11]
(i)
WW
[6.11
No.
3]
ABC
Radio
Law
Report:
The
Trial
of
Leon
Borthwick
Parts
1,
2
and
3
http://www.abc.net.au/rn/lawreport/stories/2011/3119705.htm
Tracey
Booth,
Crime
Victims
and
Sentencing:
Reflections
on
Borthwick
(2011)
36/4
Alternative
Law
Journal
236-239
Sentencing
Act
1991
(Vic)
s.9C
Custodial
sentence
with
non-parole
period
of
at
least
10
years
to
be
imposed
for
manslaughter
by
a
punch
or
strike.
http://www.abc.net.au/news/2014-08-17/one-punch-killers-to-get-10-years-jail-under-new-victorian-
laws/5676346
Julia
Quilter
The
Thomas
Kelly
Case:
Why
a
one-punch
law
is
not
the
answer
(2014)
38
Criminal
Law
Journal
16
F&K:
chapter
4
B&M:
chapter
9
18
Part
1:
General
o
o
Crimes
Act
1958
(Vic)
ss.322G-322J
(introduced
by
the
Crimes
Amendment
(Abolition
of
Defensive
Homicide)
Act
2014
(Vic)).
Crimes
Amendment
(Abolition
of
Defensive
Homicide)
Bill
2014
(Vic)
second
reading
speech
at
http://hansard.parliament.vic.gov.au/isysquery/56c71a69-5996-4260-837a-e430e7051597/2/doc/
Further
reading:
o Parliament
of
Victoria
Research
Brief
No
8
(July
2014):
Crimes
Amendment
(Abolition
of
Defensive
Homicide)
Bill
2014
Parliamentary
Library
and
Information
Service
2014.
Part
2:
Self-defence
o
o
o
o
Background:
Victorian
Law
Reform
Commission,
Defences
to
Homicide
Final
Report,
2004
pp.60-105.
WW
[5.8]-[5.9],
[12.2]-[12.3]
Crimes
Act
ss.322G-322I;
322K,
322L,
322N
Zecevic
v
DPP
(Vic)
(1987)
162
CLR
645,
WW
[5.9],
[12.4C]
o
o
o
o
o
Part
3:
Duress
Part
4:
Sudden
or
extraordinary
emergency
Part
5:
Intoxication
Part
6:
Family
Violence
and
defences
Victorian
Law
Reform
Commission
Defences
to
Homicide:
Final
Report
2004
pp
129-142.
Crimes
Amendment
(Abolition
of
Defensive
Homicide)
Bill
2014
(Vic)
Explanatory
Memorandum
pp.2-8.
Department
of
Justice,
Defensive
Homicide:
Proposal
for
Legislative
Reform
(September
2013)
https://assets.justice.vic.gov.au/justice/resources/f9d7181e-5bef-47b6-814b-
183eeb8d8be5/defensivehomicideconsultationpaper2013.pdf
o Osland
v
R
(1998)
197
CLR
316,
WW
[11.13C]
o Crimes
Act
1958
(Vic)
s.3B
(abolition
of
the
defence
of
provocation)
Evidence
of
family
violence
when
arguing
one
of
the
defences:
o Crimes
Act
1958
(Vic)
ss.322J,
322M,
322P
application
family
violence
to
self
defence
o Crimes
Act
1958
(Vic)
s.322P
application
of
family
violence
to
duress
o
o
o
****
Copyright
(2016).
NOT
FOR
RESALE.
All
materials
produced
for
this
course
of
study
are
reproduced
under
Part
VB
of
the
Copyright
Act
1968,
or
with
permission
of
the
copyright
owner
or
under
terms
of
database
agreements.
These
materials
are
protected
by
copyright.
Monash
students
are
permitted
to
use
these
materials
for
personal
study
and
research
only.
Use
of
these
materials
for
any
other
purposes,
including
copying
or
resale,
without
express
permission
of
the
copyright
owner,
may
infringe
copyright.
The
copyright
owner
may
take
action
against
you
for
infringement.
19