Table of Contents

Criminalisation 2

Defining Crime 2

Justifications for Criminal Law: Harm, Risks, and Morality 5

Case Study: Drug Policy 7

Colonialism and Indigenous People 7

Deaths in Custody 8

Deaths in Custody Case Studies 8

Normative Theories of Criminalisation 9

Case Study: Consorting 11

The Criminal Process 12

Two Tiers of Justice 12

Expansion of Summary Justice 14

Technocratic Justice 15

Models of the Criminal Process 16

The Ubiquity of Discretion 16

The Adversary System and the (In)visibility of the Pre-trial Process 17

Miscarriages of Justice 17

Crown Appeals and the Double Jeopardy Principle 17

Case Study: Boraville 17

Process as Punishment 17

Bail Reform 18

Application of the Bail Act 2013 20

Police Powers 20

Police and the Criminal Process 20

Admissibility of Evidence: s138 of Evidence Act 1995 (NSW) 21

Power of Arrest: s99 Law Enforcement (Powers and Responsibilities) Act 2002 [“LEPRA”] 21

Powers to stop and Search 24

Exercise of Reasonable Force 31

Components of Criminal Offences 33

Constituting Legal Personhood 33

Actus Reus 34

Attempt 35

Mens Rea 37

Burden of Proof 38

Strict Liability 39

Interpretation of Statutory Offences - He Kaw The v The Queen 40

Drugs 41

Drugs Offences: NSW Law 41

Public Order 45

Regulating Public Space 45

Offensiveness 46

Racial Vilification 48

Move on Powers 48

Crowd Control and Protest 48

Criminalisation

Defining Crime

• What is a crime? (Crimes Act 1900 (NSW); Summary Offences Act 1988 (NSW))

  • Nature and characteristics of crime

  • What kinds of acts are caught up in criminal law?

  • Mala in se “wrong in itself”

    • Murder

    • Theft

    • Rape

    • Assault

  • Mala Prohibita “wrong because its prohibited”

    • Speeding

    • Public order

• Introduction to criminalisation

  • Issue of criminalisation interrogates the principle, motivation and forces behind decisions to characterise certain forms of behaviour as criminal

  • Influential stream of normative scholarship

  • Overcriminalisation

    • Notion of common-sense

    • Penal popularism

    • Rather than timeless, historically specific

    • Issue of language and metaphor in crime discussions Andres Ashworth – “is the criminal law a lost cause?”

      • Examine various approaches to providing normative accounts

  • Normative theory of criminal law

    • A theory, principle or set of criteria which determine appropriate limits to criminal law

    • Specification of what behaviour are appropriately criminalised

  • Historical

    • Historical context

    • 18^th century England – peasantry and common land taken as private property

    • ATSI people colonial and post-colonial criminal law

  • Decisions to criminalise

    • Harm

    • Risk

    • Morality

    • Offensiveness

    • Social reaction

    • Moral panic

    • Social class

• Criminalisation and penalty – contextualising criminal law

  • Nicola Lacey in The Oxford Handbook of Criminology

    • Criminalisation constitutes an appropriate conceptual framework which to gather together the constellation of social practices which for subject matter of criminal law

    • Escaping the notion of crimes as given

    • Criminalisation captures the dynamic nature of the field as a set of interlocking practices in which the moments of defining and responding to crime can rarely be completely distinguished

  • Nicola Lacey, In Search of Criminal Responsibility: Ideas, Interests and Institutions

    • Criminalisation does not just require an analysis of the desirable justifications and elements that should structure existing, new or amended substantive offences

    • Involves examination of police powers

      • Entwined with substantiative offences

    • Police and prosecutors have developed their own versions of what enforceable law is

    • Exercise discretions

    • Descriptive vs normative vs context

      • D Describes what the crime is

      • NScoping what the harm is

      • C Who is being charged and tried

  • Stanley Cohen – Against Criminology

    • “How do certain elements of social life come into orbit of the criminal law?”

    • Two opposing tendencies – how the category of crime becomes accepted and how criminalisation becomes questioned and even reversed

    • New criminalisation the virtual disappearance of decriminalisation from the agenda, and along with it any attempt to take a critical stance towards the concept of crime

    • Classic jurisprudence dichotomy

      • Shopping list metaphor

    • Criminalisation is a particular reaction to a defined social problem

    • Under what conditions do certain people feel state intervention is justified?

      • Social class?

    • What factors affect the process of criminalisation?

      • Social class?

  • Morris and Hawkins – The Honest Politicians Guide to Crime Control

    • Concerns overreach of the criminal law

    • Pragmatic issues concerning the cost of criminalisation in areas like drugs and prostitution

    • Overcriminalisation was common

    • Overreaching beyond the purpose of protecting persons and property by pursuing moralistic excrescences

  • Husak – overcriminalisation: the limits of the criminal law

    • He calls it overcriminalisation

    • The extraordinary rise in the size and scope of the criminal law

  • Nils Christies

    • “Crime does not exist. It is created. First there are acts. Then follows a long process that gives meaning to those acts”

• Common-sense: the case of murder

  • The common-sense approach to what a crime is, is that everyone knows a crime when they see one

  • The simplicity of this theory is deceptive

  • Law and order common sense

    • Hoog and Brown – rethinking law and order

      • Identify key assumptions and themes

        • Soaring crime rates

        • It is worse than ever – law and order nostalgia

        • The future is New York or la

        • The criminal justice system is soft on crime and does not protect citizens

        • The solution is more police with more powers

        • We need tougher penalties victims should be able to get revenge through he courts

• Social class and criminalisation

  • Does social class influence which activities will be criminalised?

    • Respectable people vs criminal class

    • Alan Bond? James Hardie Directors? HSBS?

      • Alan Bond – one day for every one million where as people who take a 1$ loaf of bread get years

      • James Hardie – asbestos, no one has been...

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