HD and Dean's List Full Course Notes

Description

HD and Dean's List Extensive Complete Course Notes. Covering every topic and lecture for the whole term. Topics covered: Week 1 (Criminalisation and Penality): What is crime and what ought to be crime, overreach and the crime tariff effect (Morris and Hawkins), overcriminalisation and its five harms (Husak), law and order commonsense and the seven elements (Hogg and Brown), primary definers and the hierarchy of credibility, penal populism (Pratt: Sorcerer's Apprentice dynamic), historical relativity and change in what counts as criminal, cross-cultural perspectives, the production of knowledge about crime (dark figures, police statistics), various forms of regulation beyond criminal law (governmentality: Foucault and Simon), defining crime (Williams, Lord Atkin, HM Hart), mala in se vs mala prohibita, Ashworth's lost cause thesis and four principled core principles, Lacey on disaggregating criminalisation (formal vs substantive criminalisation, four regulatory modalities), Duff's public wrongs theory and Naffine's critique, Husak's internal and external constraints, Farmer's institutional theory, McNamara et al's empirical and Australian approach, Cohen against the menu model, history of criminalisation in 18th century England (Bloody Code, Enclosure Acts), colonialism and the criminalisation of Aboriginal and Torres Strait Islander peoples, the public and private distinction (Toonen v Australia, Human Rights (Sexual Conduct) Act 1994 (Cth)), Mill's harm principle and its four problems, risk and the rise of preventive justice (Garland, O'Malley, Jonathan Simon, Erickson and Haggerty), the Hart and Devlin debate on law and morality, offensiveness and Feinberg's analysis, social reaction, moral panics (Cohen, Folk Devils) and social class. Week 2 (Components of Criminal Offences): Actus reus and mens rea (actus non facit reum, nisi mens sit rea), the golden thread (Woolmington v DPP AC 462), criminal capacity for children (doli incapax, graduated age-based framework), corporate criminal liability (identification doctrine: Tesco v Nattrass, critique, Commonwealth Criminal Code ss to and corporate culture liability), voluntary act requirement and Ryan (1967) 121 CLR 205 (voluntary act in robbery), causation (but-for test, substantial and operative cause, novus actus interveniens, thin skull rule), omissions liability and four duty categories, policy concerns about omissions, status offences and constitutional concern, mens rea fault elements (intention, knowledge, recklessness, negligence, strict liability, absolute liability), objective vs subjective standards, direct vs oblique intent and Zaburoni HCA 12, recklessness in NSW (Blackwell NSWCCA 93; Aubrey HCA 18) vs Commonwealth Code standard, reckless indifference to human life under Crimes Act 1900 (NSW) s 18, criminal negligence vs civil negligence (Nydam v The Queen VR 430), transferred malice (Latimer (1886), Pembliton (1874), AG Reference No 3 of 1994), wilful blindness as equivalent to knowledge, He Kaw Teh (1985) 157 CLR 523 five-step framework for interpreting silent statutes, strict vs absolute liability (Proudman v Dayman (1941) 67 CLR 536), beyond reasonable doubt and the moth-eaten golden thread (reverse onus, evidential burden, strict liability), attempt (preparation vs perpetration, mens rea for attempt, impossible attempts). Week 3 (Policing as Social Control): Policing as an aspect of social control (Bowling, Reiner and Sheptycki), the suspect population as a police construct (McConville et al, The Case for the Prosecution), Bittner on police use of law as a resource, the LEPRA framework and its structure (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)), LEPRA arrest powers without warrant (s 99: reasonable suspicion plus reasonably necessary, six purposes, field court attendance notice s 100), arrest as a last resort (Royal Commission into Aboriginal Deaths in Custody 1991, alternatives to arrest), duty to inform of grounds (Christie v Leachinsky, LEPRA s 201), interrogation and the right to silence (LEPRA s 122 caution, four rationales), s 89A LEPRA qualified right to silence (four conditions for adverse inference, key limits including Webber, Argent, Beckles, Taleb NSWSC 241), search without warrant under s 21 LEPRA (reasonable suspicion, four circumstances), strip searches (LEPRA s 3 definition, s 32 privacy and dignity requirements, Redfern Legal Centre controversy), drug detection dogs (LEPRA Part 11, false-positive rates 60 to 74 percent, pill testing debate). Week 4 (Police Powers Continued): Consequences of arrest vs summons (up to 4 to 8 hour detention, strip search, fingerprinting, interrogation, bail refusal, loss of employment, stigma), Feeley's process as punishment applied to arrest, arrest as last resort: evidence of police culture and underuse of field notices, Royal Commission finding that 60 percent of Aboriginal deaths in custody were in police cells and 40 percent of custodies were for drunkenness, right to silence debate (arguments for unqualified right: adversarial system, protecting the vulnerable, false confessions, cultural considerations for Aboriginal suspects; arguments for qualified right: s 89A position, UK CJPOA 1994 experience), police accountability and evidence exclusion under s 138 Evidence Act 1995 (NSW) (five factors favouring exclusion, deliberate misconduct), the Law Enforcement Conduct Commission (LECC). Week 5 (The Criminal Process): The two tiers of justice (McBarnet, Conviction (1981); Dixon J in Munday v Gill (1930) 44 CLR 38), NSW court structure and 2018 caseload data (Local Court 130,000+ finalisations, District Court approx 5,000, Supreme Court approx 500), McBarnet's critique of appellate court ideology vs lower court administrative reality, historical role of magistrates (Castles, First Charter of Justice 1787), McBarnet's analysis of Scottish lower courts, Darbyshire on NSW research, the DPP and prosecution: independence (Director of Public Prosecutions Act 1986 (NSW) s 26, Shawcross statement), the two-part public interest test under Guideline 4 (sufficiency of evidence and public interest factors table), the Chaser case DPP decision (2008) as an example of prosecutorial discretion in practice, Feeley's process as punishment thesis (informal sanctions before adjudication, extension to DNA collection and sex offender registration), competing models of justice (Packer's crime control vs due process, Roach's four models adding victims' rights and restorative justice), Early Appropriate Guilty Plea (EAGP) reforms from 2018 (25 percent maximum discount, critique of systemic pressure). Week 7 (Deaths in Custody and Bail): Royal Commission into Aboriginal Deaths in Custody (1991): 99 deaths examined, 1988 Police Custody Survey data, 60 percent of Aboriginal deaths in police not prison custody, 40 percent of custodies for drunkenness or good order offences, key recommendations, ongoing deaths post-1991 (400 plus between 1991 and 2020), notable cases (Kwementyaye Briscoe 2012, Rebecca Maher 2016, Tanya Day 2017), common systemic failures, Bail Act 2013 (NSW) framework (three-step process: show cause under ss 16A and 16B, bail concerns under s 17, unacceptable risk under s 19), show cause offences (murder, sexual assault child under 16, terrorism, commercial drug trafficking, repeat serious domestic violence, offences on bail), s 18 factors (exhaustive list of 12 factors for bail concern assessment), Tikomaimaleya NSWCA 83 (sequential not concurrent application of show cause and unacceptable risk tests), critique of bail laws (Magistrate Heilpern in Fuller (2015)), disproportionate impact on Aboriginal peoples in remand populations. Week 8 (Prosecution Discretion and Miscarriages of Justice): Pre-charge diversion programs (Youth Justice Conferences, Drug Court, Mental Health Court Liaison, Circle Sentencing), disproportionate diversion of non-Indigenous over Aboriginal youth, definitions of miscarriage of justice (narrow popular usage, broader Walker and Starmer definition, technical s 6 Criminal Appeal Act 1912 (NSW) definition: unreasonable verdict, wrong question of law, other miscarriage ground, Kirby J in Gipp (1998) 194 CLR 106), causes of wrongful conviction (false confessions, eyewitness misidentification, flawed forensic science, tunnel vision, non-disclosure, ineffective legal representation), notable Australian miscarriage cases (Lindy Chamberlain 1982 to 2012: flawed forensic science and media moral panic; Andrew Mallard: police fabrication and non-disclosure, WA; Button and Beamish: 38-year failure sustained despite gallows confession by real killer), Momcilovic v The Queen HCA 34 (reverse onus and miscarriage, Victorian Charter interaction), remedies for miscarriages in NSW (s 5 Criminal Appeal Act 1912, s 78 Crimes (Appeal and Review) Act 2001, Royal Commissions, petition for pardon, compensation). Week 9 (Public Order Offences): Public space and regulation (White, 2012: construction of public space, class-related processes, hostile architecture, cultural criminology on graffiti and loitering), historical development of NSW public order law (1979 Labor decriminalisation, 1988 Summary Offences Act reversal, 1990s to 2000s law and order bidding wars), definition of public place under s 3(1) SOA 1988 (actual use test, trespassers: Semple v Howes (1985)), Stutsel v Reid (1990) 20 NSWLR 661 (language within hearing from a public place, no person need actually be present), offensive language and conduct under s 4 SOA 1988 (elements, the reasonable person test for offensiveness, defences), disproportionate impact on Aboriginal people (Stutsel, Ball (2012), NSW Ombudsman 2012, NSWLRC Penalty Notices Report No 132), move-on powers under LEPRA Part 14 (five grounds, 6-hour exclusion period), NSW Ombudsman review impact data (48 percent recipients aged 17 or younger, 22 percent Aboriginal or Torres Strait Islander), riot (s 93B Crimes Act 1900: 12 or more persons, 15 years), affray (s 93C: single person, 10 years), violent disorder (s 11A SOA 1988: 3 or more persons, 5 years, may be committed in private), sex work in NSW (decriminalisation model from 1995 vs Swedish/Nordic model comparison), Graffiti Control Act 2008 (ss 4, 5 and 7), technology and public order policing (CCTV, facial recognition technology, hostile architecture). Week 10 (Drug Offences): Four reasons drug law matters (volume, departures from principle, social significance, race and class), the war on drugs and its origins (Nixon 1971, Ehrlichman 2016 admission, Michelle Alexander The New Jim Crow, International Drug Policy Consortium 2018), NSW legislative framework (Drug Misuse and Trafficking Act 1985 (NSW) (DMTA), Poisons and Therapeutic Goods Act 1966 (NSW), Criminal Code Act 1995 (Cth) Division 307), quantity categories and their significance (small, traffickable, commercial, large commercial) with heroin examples, principal DMTA offences table (ss 10, 23, 24, 25, 25A with maximum penalties), deemed supply as departure from the golden thread (s 29 DMTA reverse onus, departure from Woolmington, policy justification vs civil libertarian critique), deemed drug provisions (field tests, false-positive rates), preparatory offences beyond common law attempt (precursor possession, equipment, conspiracy), Professor Howard's critique and Brown et al's response (drug law as the frontier of criminal law development), Commonwealth Division 307 offences (ss to : life to 10 years), domestic distribution offences, double jeopardy and NSW/Commonwealth overlap (Criminal Code s 4C, Criminal Procedure Act 1986 (NSW) s 11), drug detection dogs revisited (High Alert report 2019, 12 percent of strip searches after dog alert found drugs), diversion vs criminalisation (Cannabis Caution Scheme, Drug Court, Young Offenders Act 1997 (NSW)), alternative models comparison table (prohibition, decriminalisation, regulated legalisation, harm reduction: Portugal 2001, ACT 2020 cannabis decriminalisation and its inconsistency with Commonwealth law).