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 2024 is available in the Archives.
Credit points: 8 cp
Result type: Grade and marks
Requisite(s): ( 70102c Foundations of Law 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 criminal law component examines the principles of criminal liability, specific criminal offences – principally homicide, assaults and property offences – complicity and defences. The criminal procedure component covers aspects of police powers and prosecution. The primary source of criminal law in NSW is the Crimes Act 1900 (NSW), although some offences and defences, as well as broader principles of criminal responsibility, are defined at common law. Accordingly, students engage in both statutory interpretation and case law analysis.
Students are encouraged in seminar discussions 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.
Students develop legal problem-solving skills in interpreting factual scenarios, identifying relevant legal issues, and applying rules to the facts to formulate a sound legal position. These 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 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 which reflect the course intended learning outcomes:
- Legal Knowledge
A coherent understanding of fundamental areas of legal knowledge including:
a. The Australian colonial and post-colonial legal system, international and comparative contexts, theoretical and technical knowledge;
b. The broader contexts within which legal issues arise and the law operates including cultural awareness, social justice and policy;
c. The impact of Anglo-Australian laws on Indigenous peoples, including their historical origins in the process of colonisation and ongoing impact; and
d. The principles and values of justice and ethical practices in lawyers' roles. (LAW.1.1) - Critical Analysis and Evaluation
A capacity to think critically, strategically and creatively, including the ability to:
a. Identify and articulate legal issues in context, including the skill of critical reading and writing;
b. Apply reasoning and research to generate appropriate responses;
c. Engage in critical analysis and make a reasoned choice amongst alternatives; and
d. Think creatively in approaching legal issues and generating appropriate responses. (LAW.3.1) - Communication
Effective and appropriate communication skills including:
a. Highly effective use of the English language to convey legal ideas and views to different and diverse audiences and environments;
b. An ability to communicate to inform, analyse, report and persuade;
c. An ability to strategically select an appropriate medium and message;
d. An ability to assess how messages are received and alter communication strategies accordingly; and
e. An ability to be responsive and adaptive to the perspectives of collaborators, clients, counter parties and others. (LAW.5.1)
Teaching and learning strategies
Strategy 1: Student preparation
Students are expected to complete the prescribed reading outlined on Canvas 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 class discussions. Students should 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 discussion board.
Strategy 2: Interactive class discussions
The interactive seminar format assists students to consolidate and develop the knowledge acquired through the pre-class reading. Seminar discussions encourage and develop students’ capacity for critical thinking and oral communication. The modules on Canvas contain 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: Problem-solving
The ability to solve problems is an essential skill in lawyering. Problem-solving involves interpreting facts, identifying and analysing legal issues and applying relevant law to the facts. Students will practise these skills in seminars and pre-class activities 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
Students reflect on their class participation in a self-assessment form, and following this, are given feedback from their seminar leader on how they are performing relative to the assessment criteria for class participation. Overall written feedback on the assignment is provided to students by means of a detailed marking guide posted upon return of the assignment papers, as well as to each student through individual comments on marked papers. This feedback will assist students to identify aspects of legal analysis, written expression and problem-solving that need to be improved in preparation for the final 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 to ask and answer others’ questions about the subject and its assessment, both generally about criminal law including recent or topical developments, or specifically about any of the topics being taught 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. The Subject Coordinator will endeavor to respond to unanswered questions or correct mistakes 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
Strategy 5: Quizzes
Students are provided the opportunity to undertake ungraded online quizzes which provide ongoing, formative feedback on their understanding of criminal law and procedure at regular intervals during the session.
Subject Delivery:
This subject is delivered online and in person for all of the Autumn session.
Content (topics)
Topic 1: Introducing Concepts of Criminal Justice and Penal Bias
Topic 2: Crime, Punishment and Prosecution
Topic 3: Criminal Procedure: Policing
Topic 4: General Principles: Proof; Conduct and Fault Elements
Topic 5: Unlawful Homicide: Murder and Manslaughter
Topic 6: Assault and Sexual Assault
Topic 7: Property Offences
Topic 8: Participation in Crimes
Topic 9: Defences
Topic 10: 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: LAW.1.1, LAW.3.1 and LAW.5.1 |
| 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: LAW.1.1, LAW.3.1 and LAW.5.1 |
| Weight: | 40% |
| Length: | 2,000 words maximum (divided between 2 x maximum 1000 words per advice) |
| Criteria: | The Legal Problem Advice will be assessed according to the following criteria: 1. Interpretation of the task, including: understanding the requirements of the task; 2. Analysis of reading materials, including: correctly referencing the relevant cases, statutory provisions and commentary from the readings; 3. Application of problem-solving skills, including: identifying material facts; 4. Critical analysis and evaluation, including: applying appropriate, logical reasoning in the interpretation of the law; 5. Written Communication, including: expressing oneself clearly, succinctly and logically in writing; NOTE: The criminal law problem-solving model relevant to this assignment and final exam is explained in a dedicated problem-solving class. Further information on the assignment criteria is available on Canvas. |
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: LAW.1.1 and LAW.3.1 |
| Weight: | 40% |
| Criteria: | The formal exam will be assessed according to the following criteria: 1. Knowledge of substantive and procedural 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
Penny Crofts et al, Waller and Williams Criminal Law: Text and Cases (LexisNexis,14th ed, 2020)
Andrew Hemming, Francine Feld and Thalia Anthony, Criminal Procedure in Australia (Lexis Nexis, 3rd edition, 2023)
Recommended texts
Recommended texts include:
- David Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (Federation Press, 7th ed, 2020)
- Penny Crofts, Criminal Law Elements (LexisNexis, 7th ed, 2021)
- Roderick Howie and Peter Johnson, Criminal Practice and Procedure NSW, LexisNexis, Sydney [online format via UTS Library database Lexis Advance Pacific]
- Robert Hayes and Michael Eburn, Criminal Law and Procedure in New South Wales (LexisNexis Butterworths, 6th ed, 2019)
- Bernadette McSherry and Bronwyn Naylor, Australian Criminal Laws: Critical perspectives (Oxford University Press, 2004)
- Kenneth Yin and Anibeth Desierto, Legal Problem Solving and Syllogistic Analysis: A Guide for Foundation Law Students (LexisNexis, 2016)
Other resources
- Judicial Commission of NSW Criminal Trial Courts Bench Book
- NSW Legislation website
- AustLII website
- Criminal Law Journal (Australia and New Zealand)
- Criminal Law Review (UK)
- Australian Criminal Reports
- Current Issues in Criminal Justice
- Reports of the Australian Institute of Criminology