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Skip to 0 minutes and 4 secondsMELISSA CASTAN: So criminal law systems generally are also governed through statute law. And we see big acts-- typically called the Crime Act-- that will have hundreds and hundreds of different provisions that regulate people's behavior. And that's really a way of government deciding on the scope of acceptable behavior for the citizens and regulating that through law. One of the difficult aspects with criminal law is what are the actual objectives. When people broke the law, what's the consequences? If we incarcerate people, are we doing that for punishment? Are we doing that for rehabilitation? Are we doing it to just remove the person from the rest of society and isolate them? Increasingly, we're seeing unclear motives as to why we incarcerate people.

Skip to 0 minutes and 52 secondsAnd we're seeing prisons fill, and fill, and fill with no end particularly in sight. We're also seeing criminal or increasingly used by politicians to achieve much broader objectives than what we might have originally thought was reasonable regulation by government. And we're seeing a growth in criminal law as we see society or society's representatives seeking to criminalize more and more behavior. There's some important questions to be asked as to whether that type of extension of criminal law is still appropriate.

Skip to 1 minute and 26 secondsALAN DAVIS: Criminal law, I guess, one easy way to put it is it's about trying to find the balances and checks between protection, and society, and what government can impose to your freedom, your liberty, and for you to do what you want. And often, it's a fine line between those checks and balances on both sides that protect us as a society. You want your protection. You want to know that you're safe at night. But just because you might have been charged with something, which doesn't mean you're guilty or not guilty at that stage-- an offense is alleged. You don't want vigilante justice.

Skip to 2 minutes and 4 secondsYou don't want somebody else coming from down the street with their pick axes and trying to get you. So you want some protection as well.

Skip to 2 minutes and 11 secondsSALLY ANDERSEN: But we also do have offenses, such as common law or assault, and other offenses that still exist solely in the common law.

Skip to 2 minutes and 17 secondsALAN DAVIS: So essentially we have cases to help illuminate and translate sometimes the legislation. It's how the judges interpret the legislation. So a good example of that is actually where it is homicide offenses such as murder, where it's not defined anywhere in legislation-- cases, common law, old common law terms that have been developed through centuries that define homicide offenses such as murder. It's not anywhere in the Crimes Act of 1958 of Victoria. However, the sentences-- the maximum penalty is but not any of the definitions. And that, we look at common law.

Skip to 2 minutes and 54 secondsSALLY ANDERSEN: Our magistrates court in Victoria is the lowest court in our court hierarchy. That's where every matter starts with, and all court systems would have this lower court. For example in WA, it's called the local court. So it may go by a different name, but it's still the same court. So every matter will start in the magistrates court, and it my finish there. Or, if it's a serious matter, it may be moved up the hierarchy to the county court or even to the Supreme Court, depending upon the offense that the accused has been charged with.

Skip to 3 minutes and 30 secondsALAN DAVIS: Because some matters can't be heard in the magistrates court. They, essentially, are too serious.

Skip to 3 minutes and 35 secondsSALLY ANDERSEN: For example, murder is not going to be heard in the magistrates court.

Skip to 3 minutes and 39 secondsALAN DAVIS: So you have the lower offenses where there's a maximum penalty. I believe it's two years in the magistrates court?

Skip to 3 minutes and 45 secondsSALLY ANDERSEN: Two years for one offense.

Skip to 3 minutes and 45 secondsALAN DAVIS: Two combined offenses-- then it's five years maximum. But anything higher than that you then go to the county court. And often as an individual, you might choose. Because in the county court, you have a jury, where they might actually be more sympathetic if you go to trial than a magistrate that essentially, perhaps, have heard many of these offenses.

Skip to 4 minutes and 5 secondsSALLY ANDERSEN: But you may also be in a rush to have the matter heard. So if you go to the magistrate's court, it's going to be hit a lot quicker. There are similarities between our system of law in Australia and the system of law, for example, in the UK. If you look at our law concerning theft, a lot of that law has come from the UK Theft Act.

Skip to 4 minutes and 29 secondsALAN DAVIS: Absolutely so. The Crimes Act in Victoria was written in 1958. That's when it was first established, where they tried to get it all in one piece. But that is founded and based on the English and Welsh systems. So we say the UK, but that's only England and Wales. Scotland and Northern Ireland has different law completely, so has England and Wales. And essentially any modifications and revamps that have happened since then have also been based on the English and Welsh system and vice versa actually. Both countries look at each other for guidance. Often in Australia, criminal law is state-based. However, there are some federal crimes, such as importation of drugs, or Centrelink and certain fraud-- that's commonwealth.

Skip to 5 minutes and 13 secondsSo that means it's--

Skip to 5 minutes and 14 secondsSALLY ANDERSEN: Tax.

Skip to 5 minutes and 15 secondsALAN DAVIS: --and tax, absolutely. So that's dealt with in terms of Australia as a whole in the terms of a federal system. Interesting enough though, you don't go to the big court in Canberra. It will still be heard in your local court within the state. But it will be administered as such through the--

Skip to 5 minutes and 32 secondsSALLY ANDERSEN: Through a commonwealth act.

Skip to 5 minutes and 34 secondsALAN DAVIS: --through the Commonwealth Act, absolutely.

Skip to 5 minutes and 36 secondsSALLY ANDERSEN: In order to be found guilty of a crime, the prosecution must prove that the accused had the necessary actus reus, that is, performed the necessary physical wrongful act or guilty act and that the act was accompanied by mens rea-- meaning, a guilty mind. So we have a formula where to prove the crime, first of all, we need our actus reus, which is our guilty action. Plus we need our mens rea, which is our guilty mind. And then we can look and determine whether or not the accused had a defense.

Skip to 6 minutes and 12 secondsALAN DAVIS: If raised.

Skip to 6 minutes and 13 secondsSALLY ANDERSEN: If raised-- the accused needs to raise the defense. If there is no defense raised, the accused will be found guilty. And the onus isn't on the prosecution to raise the defense. The onus is on the defense to raise any possible defenses, but the onus is then shifted back to the prosecution to essentially rebut and negate the defense.

Skip to 6 minutes and 34 secondsSALLY ANDERSEN: So the prosecution needs to prove the actus reus, and they need to prove the mens rea.

Skip to 6 minutes and 40 secondsALAN DAVIS: All beyond reasonable doubt.

Skip to 6 minutes and 42 secondsSALLY ANDERSEN: --all beyond reasonable doubt. So the choose will only be found guilty if the jury is satisfied beyond reasonable doubt that the crime has been proven.

Skip to 6 minutes and 52 secondsSALLY ANDERSEN: And that beyond reasonable doubt is often what sets criminal law away from tort law or civil law, because it's a much higher standard. Somebody can go to prison for life, and that can actually mean life. So it's a much higher standard, so beyond reasonable doubt is very hard to prove. If there's the slightest doubt, then you have to find the person not guilty. Whereas in civil law, it's a balance of probabilities, which is a much lower standard.

Introduction to criminal law

Watch Melissa (Deputy Director, Castan Centre for Human Rights Law & Senior Lecturer, Faculty of Law), Sally (Teaching Associate, Faculty of Law) and Alan (Lecturer, Faculty of Law) talk about criminal law, the goals of the criminal justice system, how the law classifies and organises offences, and the elements of some basic common law criminal offences and defences.

Criminal law is an example of public law. The state is informed by the community of bad behaviour through its agencies and policing forces, it acts on reports and represents the interest of the public by investigating, gathering evidence, and if appropriate, charging a person accused of engaging in a type of specific prohibited conduct, known as a criminal offence. If a judge or a jury in a court finds the accused guilty of the criminal offence they have been charged with, it will punish them appropriately.

Talking point

Within the Comments, consider sharing with other learners your thoughts on the following question:

  • Are the criminal offences of ‘theft’ and ‘murder’ expressed in statute law in your jurisdiction?

If you’re not sure how to find law resources, watch Caroline’s How to start finding the law and How to access online law resources to learn how to access and search for legal information online.

Don’t forget to contribute to the discussion by reviewing the comments made by other learners, making sure you provide constructive feedback and commentary. Remember you can also ‘like’ comments or follow other learners throughout the course.

Responses to your comments can be viewed by selecting Replies.

Go to Downloads for a link to Crime and punishment: the goals of the criminal justice system, a document that provides more detail on criminal law, criminal offences and common law defences.

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This video is from the free online course:

Law for Non-Lawyers: Introduction to Law

Monash University