This chapter focuses on common law aspects of criminal law which are not so widely known. It would be of no use to anyone to write a chapter explaining what assault or theft is, for instance, or the distinction between different forms of homicide. Therefore the subject matter relates more to issues that a novice is not so well aware of, issues that do not stand to simple value-based reason, and issues that directly affect the work of security professionals. Issues like accessorial offences, motive, criminal intention, basic criminal procedure attempted crimes and standard of proof are addressed. Also, significant attention is given to security-related issues like shoplifting, self defence, false arrest and  the power of citizen's arrest. The latter is a surprisingly complex field.

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The overarching purpose of the Criminal Law is to punish that which is contrary to the interests of the Crown or State in terms of civil disorder or moral wrongs, or in terms of conflict with the affairs of state and of justice. Whereas a breach of a civil law is an offence against another person, a crime is an offence against the Crown. For this reason, court case names for criminal proceedings always employ a reference to the Crown as a party. This comes in the form of a solitary letter ‘R’ or words like ‘the Queen’ or ‘the King’ or where appropriate a reference to the Director of Public Prosecutions.

 

Whereas civil law provides remedies such as payment of damages or an obligation to fulfil agreements with the plaintiff, fines and prison sentences are the most obvious forms of imposition for a crime. However, the resources, manpower and skill of the police are considerable, and the machinations of government are powerful. Therefore it is not appropriate that a criminal prosecution should be as easy to run as a civil lawsuit. It is also desirable that criminal justice should come from a moralistic standpoint, which requires a high degree of certainty in the prosecution case. Nor is it appropriate that the burdensome and reputation-rending effects of a prison sentence be imposed as easily as a mere ruling for damages. This legitimises that there be hurdles for the police and government prosecutors to overcome which do not apply to a civil plaintiff. One is the need to prove the defendant’s intentionality in what they did. Another is that the case must be made out in evidence to the extent that reasonable doubt no longer exists.

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​Illegal acts can be addressed either by criminal law or by civil law. In terms of subject matter, there is vast overlap between criminal law and the law of torts; yet the manner in which the same set of facts is processed by both areas of law is very different. These are two different styles of reasoning or methodologies, leading to two different conceptual outcomes as to where the defendant stands before the law. The criminal law is a whole different jurisdiction from the civil law and its verdicts do not bear direct comparison to civil law findings.

 

 

 

A Note about Statutory Criminal Laws

Lastly, you will notice that this chapter is focused mostly on common law rather than on statutory law. Every State and Territory provides statutory criminal codes, all of which are relevant in practice because statues trump common law in all jurisdictions whenever conflict is found. While it is suggested that the reader should acquaint him/herself with those of their own State or Territory, discussion of them is circumvented almost entirely here. The reason is not only because there are so many, but because they cover the same underlying principles with focus on specific forms of incident. Therefore, you should find this discussion adequate for almost all relevant intents and purposes. The only exceptions are those related to citizen’s arrest and the handling of offenders. Why the rest of the statutes were ever enacted is a question beyond the scope of this writing and will not be entered into here.

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