70114 Criminal Law and Procedure
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particular session, location and mode of offering is the authoritative source
of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.
Subject handbook information prior to 2017 is available in the Archives.
Credit points: 8 cp
Result type: Grade and marks
Requisite(s): (70102c Foundations of Law AND 70103c Ethics Law and Justice) OR (70115c Perspectives on Law AND 70120c Legal Method and Research)
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
These requisites may not apply to students in certain courses.
There are course requisites for this subject. See access conditions.
Anti-requisite(s): 70217 Criminal Law AND 70218 Criminal Law
Description
This subject deals with substantive criminal law and criminal procedure. The substantive law element examines the principles of criminal liability, specific criminal offences – principally homicide, assaults and property offences – complicity and defences. The criminal procedure element covers limited aspects of policing powers, prosecution and bail. The primary source of criminal law in NSW is the Crimes Act 1900 (NSW), although some criminal offences and defences, as well as broader doctrines and principles of criminal responsibility, are defined through the common law. Accordingly, students engage in both statutory interpretation and case law analysis. Students are encouraged throughout class discussion to contextualise their understanding of the legal principles and processes through consideration of the aims of criminal justice and the social, political and historical factors contributing to the development and reform of criminal law.
Criminal law and procedure is one of the subject requirements for admission as a legal practitioner in all Australian jurisdictions. Accordingly, this subject is part of the core program for the Bachelor of Laws and Juris Doctor degrees. It provides students with the requisite knowledge of criminal law and procedure to prepare graduates for professional practice in the field. Additionally, students are introduced to the task of analysing and responding to legal problems, thus developing skills in interpreting factual scenarios, identifying relevant legal issues, and applying rules to the facts to formulate a sound legal position. These problem-solving techniques provide a foundation for legal problem-solving in other substantive law subjects. Legal problem-solving is an essential skill in legal practice when delivering legal advice or representing a client. Equally important is the ability of students to effectively communicate the process and results of legal problem-solving, which is developed through the class discussions – structured around discussion questions and problem-solving exercises – and through each of the assessment tasks. The teaching strategies are also designed to encourage students to collaborate in both critical evaluation and legal problem-solving.
Subject learning objectives (SLOs)
Upon successful completion of this subject students should be able to:
| 1. | Explain the structure, rationale and principles of criminal law and procedure in New South Wales through interpretation of selected provisions of the Crimes Act 1900 (NSW), analysis of common law doctrines and rules, and engagement with critical commentary |
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| 2. | Interpret facts, identify and analyse legal issues and apply relevant law to the facts to resolve criminal law problems |
| 3. | Critically analyse the policy, development and application of criminal law and procedure, including evaluating the social, political and historical context in which the laws function, and their effects on society as a whole and disadvantaged groups in particular |
| 4. | Communicate clearly and succinctly using appropriate expression when responding to factual and legal problems and when using the terminology and concepts appropriate to criminal law and procedure |
| 5. | Formulate logical, reasoned, justifiable and persuasive arguments regarding the application of criminal law to factual problems, as well as the theoretical and policy issues surrounding the laws and their application |
Course intended learning outcomes (CILOs)
This subject also contributes specifically to the development of the following graduate attributes:
- Legal Knowledge
A coherent understanding of fundamental areas of legal knowledge including the Australian legal system, social justice, cultural and international contexts and the principles and values of ethical practice. (1.0) - Critical Analysis and Evaluation
A capacity to think critically, strategically and creatively including an ability to identify and articulate legal issues, apply reasoning and research, engage in critical analysis and make reasoned choices. (3.0) - Communication and Collaboration
Effective and appropriate communication skills including highly effective use of the English language, an ability to inform, analyse, report and persuade using an appropriate medium and message and an ability to respond appropriately. (5.0)
Teaching and learning strategies
Strategy 1: Preparatory reading and independent study
Students are expected to complete the prescribed reading noted in the Seminar Materials (available through UTSOnline) prior to each class. The prescribed reading constitutes the minimum, essential preparatory work to enable a thorough understanding of the topics covered in the course and to facilitate participation in the class discussion. It is advisable that students take notes from these pre-class readings and outline preliminary answers to discussion questions and problem questions prior to class. These notes should assist with preparation and comprehension of the material in class and collaborative discussion and problem-solving exercises, and may then be augmented by any notes taken during or after the class. These notes should also be a useful foundation for examination summaries. Additionally, there are some self-learning modules which require students to undertake prescribed reading for certain topics which are not scheduled to be discussed in class. These topics complement the topics discussed in class, and are examined by students independently without instruction from the lecturer, although students are encouraged to ask questions or raise issues via the online discussion board.
Strategy 2: Collaborative discussion in seminar and small-group format
The interactive format assists students to consolidate and develop the knowledge acquired through the pre-class reading. Additionally, the classroom discussion encourages and develops students’ capacity for critical thinking and oral communication. The Seminar Materials contain a list of discussion questions and problem questions for each class. Students are expected to engage with one another and their seminar leader in responding to these questions. This will necessitate actively participating in class discussion through answering questions generally asked of the class and working on responses within designated small groups. The discussion questions generally relate to rules of criminal process, aspects of criminal liability, the elements of criminal offences, the decision and reasoning in specific cases, and critical commentary on the policy and development of such laws. The problem questions require students to respond to factual scenarios that raise legal issues and apply legal problem-solving skills to formulate legal advice.
Strategy 3: Legal problem-solving
The ability to solve problems is an essential skill in lawyering. Problem-solving involves interpreting facts, identifying and analyzing legal issues and applying relevant law to the facts. Students will practice these skills in each seminar to develop their capacity to identify legal issues arising from a factual scenario and apply relevant statutory and common law rules in criminal law to resolve those issues. Students gain relevant, practical skills in legal analysis, problem-solving and presenting legal advice. Students may be asked to suggest a response to the problem based on their own work prior to class, or be given the opportunity to examine the problem in class collaboratively within small groups.
Strategy 4: Feedback
During the session, individual lecturers will complete a tentative class participation feedback form for each student, giving general feedback on how the student is performing relative to the assessment criteria for class participation, thus enabling students to review and remedy any gaps and improve their performance. Written feedback on the assignment task is provided to students as a whole by means of an assignment marking guide posted on UTSOnline upon return of the assignment papers, as well as to each student individually through comments attached to the marked assignment papers. This feedback will assist students to identify aspects of legal analysis and problem-solving that needs to be improved in preparation for the formal examination. Each class offers students the opportunity to ask questions about any aspect of the material being discussed. Further, students are encouraged to utilise the Discussion Board on UTSOnline to ask questions or make comments about the course and its assessment, generally about criminal law including recent or topical developments, or specifically about any of the topics being treated in class. The questions posted on the Discussion Board will be accessible to all students, and students are encouraged to respond to their peers’ questions or comments, while the teaching staff will endeavor to respond to unanswered questions in a timely way. Both the class discussions and online discussion board allow students to receive timely and relevant feedback on their preparatory work, their understanding of the reading materials and their problem-solving abilities. During the Orientation period prior the start of session, students will be asked to complete an online quiz, which will be automatically assessed with correct responses noted. The quiz introduces students to select issues within the criminal justice system, including the disproportionate media attention on violent crime and the over-representation of indigenous offenders. This is intended to encourage students to contextualise the substantive and procedural laws they will learning about throughout the course.
Subject Delivery
This subject is a seminar-based, rather than lecture-based, course. This means that learning takes place interactively as between lecturer and students and among students. The subject comprises two relatively small-sized classes per week, each of 2 hours duration (thus 4 hours in total per week). Students are assigned to a group and should stay in their assigned group throughout the subject. The classes are not recorded, and recording by students is not permitted. Additionally, there are some self-learning modules which require students to complete the requisite reading and tasks independently.
Content (topics)
- Week 0 Activities: Introducing the Criminal Justice System
- Topic 1: Classification of Crimes and Proof
- Topic 2: Criminal Procedure
- Topic 3: Elements of a Crime
- Topic 4: Unlawful Homicide
- Topic 5: Property Offences
- Topic 6: Assaults and Sexual Assault
- Topic 7: Participation in Crimes
- Topic 8: Defences Topic 9: Exam Revision
Assessment
Assessment task 1: Class Participation
| Intent: | In this task students are assessed on their ability to engage in critical analysis, formulate reasoned and justifiable arguments, problem-solve and to communicate clearly and succinctly. |
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| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3, 4 and 5 This task contributes specifically to the development of the following graduate attributes: 1.0, 3.0 and 5.0 |
| Weight: | 20% |
| Criteria: | Class participation will be assessed according to the following criteria (note that this is not an exhaustive list): 1. Understanding and analysis of reading materials, including:
2. Application of problem-solving skills, including:
3. Critical analysis and evaluation, including:
4. Collaboration with class members, including:
5. Oral Communication, including:
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Assessment task 2: Legal Problem Advice
| Intent: | In this task students are assessed on their ability to interpret relevant statutory and case law, formulate reasoned and justifiable arguments regarding the application of law to facts, and communicate in writing clearly and persuasively. |
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| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 4 and 5 This task contributes specifically to the development of the following graduate attributes: 1.0 and 3.0 |
| Weight: | 40% |
| Length: | 2,500 words (plus 10% Faculty allowance) |
| Criteria: | The Legal Problem Advice will be assessed according to the following criteria: 1. Interpretation of the task including:
2. Analysis of reading materials, including: referencing the relevant cases, statutory provisions and commentary from the readings;analysing the relevant cases, statutory provisions and commentary in the context of the discussion and problem questions. 3. Application of problem-solving skills, including:
4. Critical analysis and evaluation, including:
5. Written Communication, including:
NOTE: the assignment feedback sheet used by markers is available on UTSOnline. It is strongly recommended that you look at this document before you write your assignment and familiarise yourself with the standards that coincide with the above criteria. |
Assessment task 3: Formal Exam (Centrally-conducted)
| Intent: | In this task students are assessed on their ability to interpret relevant statutory and case law, formulate reasoned and justifiable arguments regarding the application of law to facts, and communicate in writing clearly and persuasively. |
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| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3 and 4 This task contributes specifically to the development of the following graduate attributes: 1.0 and 3.0 |
| Weight: | 40% |
| Criteria: | The formal exam will be assessed according to the following criteria: 1. Knowledge of substantive law, including:
2. Analysis of reading materials, including:
3. Application of problem-solving skills, including:
4. Critical analysis and evaluation, including:
5. Written Communication, including:
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Required texts
David Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (6th ed, Federation Press, 2015)
Recommended texts
The following text is highly-recommended to students of this course:
- Penny Crofts, Criminal Law Elements (5th ed, LexisNexis Butterworths, 2014).
Other recommended texts include:
- Thalia Anthony et al, Waller and Williams Criminal Law: Text and Cases (12th ed, LexisNexis Butterworths, 2013)
- Francine Fieldet al, Criminal Procedure in Australia (LexisNexis Butterworths, 2014)
- Jeremy Gans, Modern Criminal Law of Australia (2nd ed, Cambridge University Press, 2017)
- Roderick N Howie and Peter A Johnson, Annotated Criminal Legislation in NSW (LexisNexis Butterworths, 2014) [available online]
- Robert Hayes and Michael Eburn, Criminal Law and Procedure in New South Wales (4th ed, LexisNexis Butterworths, 2013)
- Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (3rd ed, Law Book Company, 2010)
- Bernadette McSherry and Bronwyn G Naylor, Australian Criminal Laws: Critical perspectives (Oxford University Press, 2004)
- Mirko Bagaric, Kenneth J Arenson and Peter Gillies, Criminal Laws in the Common Law Jurisdictions: Cases and Materials (Oxford University Press, 2011).
For a useful guide to legal problem-solving, you may also wish to consult Kenneth Yin and Anibeth Desierto, Legal Problem Solving and Syllogistic Analysis: A Guide for Foundation Law Students (LexisNexis, 2016).
Other resources
- Criminal Law Journal (Australia and New Zealand)
- Criminal Law Review (UK)
- Australian Criminal Reports
- Australian and New Zealand Journal of Criminology's Current Issues in Criminal Justice
- Reports of the Australian Institute of Criminology
