The Fundamentals of Criminal Law in Australia

Criminal law includes both substantive and procedural elements. In general, the substantive component consists of defining and comprehending the essential aspects of numerous common law and statutory crimes, as well as the relevant defences. The procedural component, on the other hand, refers to the enforcement mechanism, or, to put it another way, the procedure by which criminal defendants are brought to court and tried for their claimed breaches. Arrest, search and seizure, illegally obtained evidence, pleadings, double jeopardy, arraignment, jury selection, and sentencing rules, for example, constitute only a portion of the procedural component of criminal law. To give credit to such a big and intricate subject, it should be obvious that a separate and lengthy law would be required.

Since each state, territory, and Commonwealth government has its separate crime legislation, there are thousands of criminal offences on the books across Australia, not to mention the common law offences that still exist in the three common law jurisdictions, namely New South Wales, South Australia, and Victoria. We believe that familiarising readers with all of these statutes and common law offences would be neither practical nor beneficial. Criminal law provides a framework for comprehending the fundamental principles and underlying rationales of substantive criminal law. The subject investigates issues such as: What is a crime, and how is it distinguished from non-criminal restrictions that give rise to civil liability, such as torts and other civil wrongs; What is the goal(s) of imposing criminal liability on individuals or corporations; What, if any, elements do all crimes share; When does a crime become one of mens rea; How many different kinds of mens reas are there; What is meant by the 'temporal coincidence' requirement, and what is the legal basis for this need; What does the term "strict liability" mean, and how does it differ from "absolute liability"; What is the distinction between "primary" or "denial" defences and those labelled as "secondary" or "affirmative" defences; What are the most common defences available to an accused; What is the distinction between the 'evidential' and 'legal' requirements of proof, and who is responsible for meeting these obligations; How does one distinguish between principals in the first degree, principals in the second degree, accessories before and after the event, and why are these distinctions important?

A career in Criminal law

Criminal law is one of the most difficult areas of professional practise for any lawyer. For competent practise in this profession, complete knowledge and understanding of the principles of criminal law, including the laws of criminal procedure, evidence law, and more than a passing familiarity with the numerous legislation governing specific criminal offences and defences, is required.

While many experienced criminal law barristers can rightly claim a comprehensive knowledge and understanding of New South Wales criminal law, few can claim the same level of comprehension of federal criminal law and the range of often obscure offences against Commonwealth of Australia laws. Understanding the criminal law that relates to Commonwealth statutes might be difficult. The complexity and size of the legislation that may create a specific offence, as well as the peculiarities of how federal offences are investigated and prosecuted, frequently leave practitioners befuddled and wishing they could return to the relative comfort of the criminal law that they are familiar with.

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