Criminal Law
Substantive Crimes
The major headline issues of criminal law are extremely well known and well understood. It does not assist anyone if these are described here; therefore time is not spent on these except to the extent of a general overview. Some crimes, however, have a legal relationship to others. That will be the focus of this brief discussion.
Criminal Trespass
Most of the major moral-based crimes are drawn from the medieval concept of trespass. It is identical in criminal law to the tort law of trespass, except that to qualify as a crime any act must have an underlying criminal intention. That is, there must be some sort of aggression in the act. To be a crime, it must be more than accidental – there must be a real intention to do the act in aggression. A court would not find an act of a friend confident of being received in a friendly spirit, to be a criminal act, even if it causes upset.
In both fields of law, there is trespass to land, trespass to the person and trespass to goods. Trespass itself is based on the concept of an inalienable right not to be touched in any way, or to any extent, unless permission is given or implied. If a person is patted on the arm, it may cause no harm, but if it is manifestly unwelcome they are the victim of a trespass. If, however, that person is a passenger on a bus with standing passengers shoulder-to-shoulder, such touching is to be expected by a reasonable person, and so the trespass is held to be accepted.
The same principle applies to all trespasses. The merest touch of or brush against someone else’s goods is a trespass, as is merely placing one’s toe-tip over a property boundary where access is clearly not welcomed, is a trespass. This is because the concept of trespass is based on an archaic notion of a fundamental right being breached, rather than of harm being caused. The common law holds that we all have rights not to be touched physically, that our goods be not interfered with, and our real property should not entered, in a manner or context where the act is unwelcome. More detail on this can be found under the heading of Trespass where it is viewed in respect of tort law.
Another trespass exists known as false imprisonment, or false arrest. That is a very large and highly pertinent topic for this guidebook. It is dealt with in depth under the below heading, Citizen’s Arrest.
One other distinction exists between criminal and tort trespass in terminology. At tort law the word assault means a mere threat of violence, whereas at criminal law it is an act of violence. The tort word for an act of violence is battery. The main difference is how an alleged wrong is handled and judged in proceedings making it harder for the criminal prosecution to reach a successful outcome than for a plaintiff in civil proceedings. For detail on this discussion see the chapter on trespass law.
Licenses to Enter and Trespass
If a person enters any premises (indoors or outdoors) lawfully, and the premises is clearly amenable for all comers to enter freely (as in the case of a shop or the foyer of an office), then permission is seen to be implied by the circumstances. The person who enters is said to have a licence-at-will to enter the said premises. (There is also a paid licensee such as a person who has purchased a ticket, or who has paid for the right to temporarily occupy space for an agreed purpose). That licence can be revoked by the lawful occupier (an owner, tenant or some other person with a higher interest than the licensee-at-will) or by others acting on behalf of the occupant (a security guard or employee). If they enter for free, revocation can be at the sole will of the lawful occupier. If the former licensee is asked to leave and refuses to leave, they automatically become a trespasser and can be arrested or expelled forcibly.
Paid licenses are subject to terms, which include the same basic expectations of orderly and lawful conduct as for a licence-at-will. However extra terms (or alternate terms) may be written or implied. Except in the case of violent acts, they may cause complications in attempting to justify expulsion or restraint of activity. Therefore knowledge of the terms is always helpful.
On the other hand, for surveillance investigators and security guards, a person wishing to do something like carry on surveillance or chase down and arrest a criminal offender faces the fact that they too are a licensee-at-will in the given premises and their presence to do something alien to the purpose for which the public is invited in, makes them potentially a trespasser themselves. There is an open question as to how far the courts will stretch the scope of implied acceptance of a person’s intentions in entering.
Hybrid Common Law Crimes
There are also interactions between and complication to different common law crimes. To break and enter land or to enter a place where one is clearly not welcome, is a trespass to land. To add trespass against goods by stealing while on that land or in that area is a burglary, not just a theft. To act violently or to threaten violence is a trespass to the person. To add trespass against goods by stealing under threat is robbery, not just theft.
Homicide is a set of crimes which, due to the seriousness of taking a life, make exceptions to the structure of criminal law. If a fight breaks out or some act is committed which causes injury, the question of trespass to the person is raised. If this results in death, then the question of whether it is manslaughter, murder or criminal negligence arises. Murder is to cause death intentionally, whatever the means. Manslaughter is to cause death accidentally, but through a deliberate act that is violent or likely to cause death. Criminal negligence is to cause death without ever meaning to do anything wrong, in the same sense as tortious negligence. Thus, homicide creates a grand exception to the notion of criminal intent. A person can be imprisoned as a criminal even if it is very clear they never meant to cause death.
Sexual crimes are trespasses against the person which receive especially harsh sentences, as they are especially devastating to the victim and so morally repugnant. These are in practice associated often with false imprisonment, homicide or serious violence making a particularly hideous crime. These crimes may take the form or rape or sexual assault.
Criminal Statutes
There are criminal statutes which overlap or re-state common law crimes, some which deal with subset situations, as well as some that cover technicalities that have impeded justice. Prosecutions may otherwise be frustrated by technical points that would allow morally undeserving offenders to get away with crimes they were involved in obliquely, or to receive light sentences. It also assists the criminal law to keep up with modern situations. Drug offences, surveillance devices and computer-based offences are examples of the latter.
The main State and Territory Acts of Parliament covering criminal law are as follows:
Australian Capital Territory – Crimes Act 1900;
New South Wales – Crimes Act 1900;
Northern Territory – Criminal Code Act 1983;
Queensland – Criminal Code Act 1899;
South Australia – Criminal Law Consolidation Act 1935;
Tasmania – Criminal Code Act 1924;
Victoria – Crimes Act 1958;
Western Australia – Criminal Code Act Compilation Act 1913.
The volume of legislation covering criminal acts is huge and it goes way beyond the scope of this guidebook to review it all, even in summary. However, it is not difficult for a layperson to analyse and understand the significant aspects. The reader is advised to download a copy of the Act pertinent to their own jurisdiction.