Criminal procedure : Victoria & Commonwealth

This work is a clear and concise study of the principles underlying criminal procedure in Victoria and the Commonwealth jurisdictions. The book provides succinct extracts of leading cases and critiques the law. this content informs readers of the current law and how it can be reformed to deal more appropriately with the complexities and challenges of this area. The text includes a discussion of the recent reforms in Victoria.This book is for all readers with an interest in criminal procedure, including judicial officers,lawyers and students.

Annotated criminal legislation Victoria 2009

An indispensable resource for anyone who needs a sound understanding of the criminal law of Victoria. Butterworths Annotated Criminal Legislation Victoria is an indispensable resource for students, practitioners and others who need a sound understanding of the criminal law of Victoria. This book has an established reputation as an essential reference source. The Acts are annotated by Gerard Nash QC and Professor Mirko Bagaric of the School of Law, Deakin University. This book has been extracted from the four volume looseleaf service Bourke's Criminal Law Victoria. Important Features: mid Extensive new annotations discussing recent case law relating to various provisions of the Crimes Act 1958. mid A quick reference directory and grey shaded tabs provide ease of navigation. Related Titles: mid Arenson & Bagaric, Criminal Procedure: Victoria and Commonwealth, 2009. mid Clough & Mulhern, Butterworths Tutorial Series - Criminal Law, 2nd ed, 2004. mid Rush & Yeo, Criminal Law Sourcebook, 2nd ed, 2005. mid Spears & Hickie, Butterworths Questions & Answers - Criminal Law for Common Law States, 2009. mid Waller & Williams, Criminal Law: Text and Cases, 11th ed, 2009.

'The witness who saw, /He left little doubt' : a comparative consideration of expert testimony in mental disability law cases in common and civil law systems

The question of how courts assess expert evidence - especially when mental disability is an issue - raises the corollary question of whether courts adequately evaluate the content of the expert testimony or whether judicial decision making may be influenced by teleology (cherry picking evidence), pretextuality (accepting experts who distort evidence to achieve socially desirable aims), and/or sanism (allowing prejudicial and stereotyped evidence). Such threats occur despite professional standards in forensic psychology and other mental health disciplines that require ethical expert testimony. The result is expert testimony that, in many instances, is at best incompetent and at worst biased. The paper details threats to competent expert testimony in a comparative law context - in both the common law (involuntary civil commitment laws and risk assessment criminal laws) and, more briefly, civil law. We conclude that teleology, pretextuality, and sanism have an impact upon judicial decision making in both the common law and civil law. Finally, we speculate as to whether the new United Nations Convention on the Rights of Persons with Disabilities is likely to have any impact on practices in this area. Copyright © 2009 John Wiley & Sons, Ltd.

The compliance of Australian preventative detention law with article 9(1) ICCPR

This thesis found that a provision of Australia's counter-terrorism policy, preventative detention, does not comply with a major international treaty, the ICCPR. This thesis provides an alternative model by which the Australian Government could achieve the legitimate purposes of preventative detention within the existing constraints of the Australian criminal law.

What is crime? Who is the criminal?

The term "crime" is often "taken-for-granted" and poorly defined in contemporary Australian and International research. There is also considerable debate amongst scholars working in different theoretical tranditions about the appropriate definition of crime. This reflects broader public division about the types of behaviour or people that are classed as criminal.

The increasing criminalization of economic law : a competition law perspective

Purpose – The purpose of this paper is to examine the trend towards the criminalization of hard core cartel conduct and to consider the appropriateness and effectiveness of extending the criminal law to this conduct. In addition, it will consider some of the legal implications, including the exposure of directors of companies to potential racketeering charges.
Design/methodology/approach – The paper first examines cartel theory and the justification for prohibition. The paper then identifies the emerging trend toward criminalization of hard core cartel conduct, followed by an assessment of potential justifications for criminalization. Implications of criminalization, including the potential impact of organized crime legislation on offenders and regulators, will then be considered.
Findings – There is a clear trend towards the criminalization of hard core cartels. The paper argues that this trend is appropriate, both because of the moral culpability it attracts and because of its potential to enhance general deterrence. The paper also argues that cartel conduct, in jurisdictions in which it is criminalized, will constitute “organized crime” as defined in the Palermo Convention and, as such, expose participants to potential money laundering and asset forfeiture consequences.
Originality/value – This paper is of value to governments and regulators considering adoption or implementation of a criminal cartel regime and to practitioners in advising clients about potential consequences of cartel conduct within a criminal regime.

Homicide law reform, gender and the provocation defence: a comparative perspective

 The operation of the partial defence of provocation has animated significant debate for more than two decades among scholars, legal practitioners, politicians and the community. In recognition of the injustices that result from its operation, criminal justice systems worldwide have conducted reviews of the law of provocation and have implemented divergent reforms targeted at minimizing the influence of gender bias in the law's operations. Drawing on the voices of over one hundred members of the Victorian, New South Wales and English criminal justice systems, this book provides a much-needed comparative analysis of the operation of this controversial partial defence to murder, the varied approaches taken to reforming the law of provocation and the effects of these reforms in practice.

Lemkin, the law and his legacy

Today I want to look at the proceedings that led up to the adoption of the GC in the UN. The events that led to the ratification by the UN are likewise intricate, but today we’ll just focus on the adoption. So adoption is where agreement is made on the content and form of the proposed treaty, so the Article in the GG are the focus here. After adoption, the treaty is ready for signatures and ratification. But the process isn’t as simple as it sounds.

What sort of mandatory penalties should we have?

The argument in favour of a widespread fixed penalty regime - adopting a primary rationale for punishment would facilitate a more coherent and exacting approach to sentencing - the central objections against fixed penalties are that they are too severe and lead to unfairness because they are unable to incorporate all the relevant sentencing variables - by adopting a utilitarian ethic as the primary rationale for punishment, these problems can be circumvented - no utilitarian justification for disproportionate punishment, and penalties should not exceed the seriousness of the offence - no foundation for most sentencing considerations - by disregarding irrelevant considerations, the remaining can be incorporated into a fixed penalty system - the way would then be open for a coherent sentencing law system in which criminal justice is governed by pre-determined rules and principles as opposed to the intuition of sentencers.

Crime stories: posnerian pragmatism, Rawlsian pure procedural justice, and the fictional problem

There are many different ways in which law and truth may be said to be related. It is perhaps in the criminal trial that connections between them are of most significance. An orthodox way of describing a criminal trial is that the criminal procedure is seeking to establish the truth concerning some past event, and that success of the procedure is measured by how close its outcome converges with that truth. Criminal justice presents the community with challenging dilemmas in this regard, such as those arising from the notion of double jeopardy. This paper discusses the Rawlsian notions of 'imperfect', 'perfect' and 'pure' procedural justice, and suggests against Rawls that it is pure procedural justice that best represents what we want from a criminal justice system. Good procedure makes good criminal law. A comparison is made with the writings of Habermas and Posner, and given that pure procedural justice eschews transcendental truths, some brief comments are made on the convergence of that position with the realm of the fictional.

The sentencing advisory commission and the hope of smarter sentencing

Sentencing law practice - confused and incoherent Sentencing has been described as the 'high point in anti-jurisprudence' (Smith 1997:174). This comment reflects the fact that sentencing law is devoid of an overarching rationale. It is marked by a high degree of discretion and is shaped more by political expedience and intuition than informed inquiry and principle. The fact that sentencing is 'the most controversial and politically sensitive aspect of the criminal law' (Freckleton 1996:ix) has militated heavily against it being developed in a coherent and principled manner.

Linkages: Mabo and the sentencing of indigenous offenders

The ground breaking decision by the High Court of Australia in Mabo v Queensland (No 2) overturned the principle of terra nullis as a legal fiction. It paved the way for a reconsideration of property law. Mabo arguably has significance beyond native title and property law to other areas of the law. This article examines the 'linkage' between the decision in Mabo and the criminal law and, in particular, the punishment of indigenous persons, it addresses the following question: Can a significantly distant temporal and physical act of dispossession as was recognized in Mabo have any relevance to contemporary questions of the punishment of indigenous persons?