Australian_Criminal_Justice_----_(1_CRIMINAL_RESPONSIBILITY).pdf
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XXXXXXXXXXCRIMINAL RESPONSIBILITY
INTRODUCTION
The criminal law identifies certain wrongful behaviour that society regards as deserving of
punishment. People
eaching the criminal law are labelled as criminals and are penalised by the
state. Given these severe consequences, the criminal law is normally reserved for limited kinds of
wrongdoing.
This chapter will analyse the major considerations affecting the decision whether certain wrongful
ehaviour should be regarded as a crime XXXXXXXXXXOne of these is the principle of individual autonomy whereby
people may conduct their lives as they choose with as few restrictions as possible. This principle
promotes minimal criminalisation. There is also the related notion of ‘individualism’, which regards
people as capable of choosing their own courses of action. According to this notion, people who lack
the capacity to choose should not be made criminally responsible for their actions. A competing
consideration is the community welfare principle according to which the collective interests of society
must be protected. This principle views individuals as belonging to a wider community that can only
e sustained if certain duties are imposed on its members. The criminal law is relied on as one
mechanism to ensure that these duties are adequately discharged. These duties serve to protect
the rights of other members of the community and, more
oadly, the values and interests of the
community that are seen as essential to its successful functioning. Hence, the community welfare
principle asserts that individual autonomy may have to be ove
idden by the collective interests of the
community. The criminal law is very much the product of the interplay between these two competing
principles of individual autonomy and community welfare.
The first part of this chapter spells out the aims and functions of the criminal law. In the second part,
certain specific policies and principles influencing the perimeters of the criminal law are explored.
Also included is a
ief consideration of the sources of the criminal law and how the law is or should
e laid down. The third part covers the essential ingredients of a crime, namely, harm-inducing
conduct, a mental or fault element, and the absence of any lawful justification or excuse, or a legally
ecognised mental incapacity (that is, defences). The fourth part considers certain concepts that the
criminal law has devised to extend the scope of criminal responsibility. The discussion will often
engage with the struggle between individual autonomy and community welfare. It will be observed
how justice or fairness is achieved for both individuals and the community to which they belong
through a carefully reasoned balancing of these competing considerations. This need to balance
individual autonomy with community welfare is so vital that it appears as an Article in the Universal
Declaration of Human Rights :
XXXXXXXXXXEveryone has duties to the community in which alone the free and full development of his
personality is possible.
1 Much of this chapter is inspired by A. Ashworth and J. Horder, Principles of Criminal Law , 7th edn, Oxford University
Press, Oxford, 2013.
Findlay, Mark, et al. Australian Criminal Justice, Oxford University Press, 2014. ProQuest Ebook Central, http:
ebookcentral.proquest.com/li
wsudt/detail.action?docID=1985995.
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8 AUSTRALIAN CRIMINAL JUSTICE
XXXXXXXXXXIn the exercise of his rights and freedoms, everyone shall be subject only to such limitations as
are determined by law solely for the purpose of securing due recognition and respect for the
ights and freedoms of others and of meeting the just requirements of morality, public order
and the general welfare in a democratic society. 2
In the final part, we discuss two recent developments pertaining to criminal responsibility that go
eyond the discussion covered by that stage. The first concerns efforts by lawmakers to render
corporations criminally liable by modifying the conventional principles of criminal responsibility that
are geared towards natural persons. The second is the creation of the International Criminal Court
to try certain crimes, and the enactment, at the international level, of a set of general principles of
criminal responsibility.
AIMS AND FUNCTIONS OF THE CRIMINAL LAW
The overall aim of the criminal law is the prevention of certain kinds of behaviour that society regards
as either harmful or potentially harmful. The criminal law is applied by society as a defence against
harms that injure the interests and values that are considered fundamental to its proper functioning.
These interests and values cover a wide area. They include the bodily integrity of people, the security
of property, protection of the environment and moral values.
It may be easy enough to state this general justifying aim of the criminal law. But the problem
comes when we have to locate the key to deciding whether an interest or value is so fundamental as
to wa
ant the protection of the criminal law. This problem is compounded by several factors. First,
there are other fundamental interests or values, also crucial to the proper functioning of society, that
are incompatible with the threat of criminal sanction. Second, there are methods of social control
or prevention besides the criminal law. Third, the primary aim is blu
ed by its increased use of the
criminal law to regulate conduct for reasons of economy and expediency. There is a growing sphere
of legislative activity that uses the criminal sanction to endorse policies that stand apart from harm
prevention. We shall elaborate upon these factors in the course of our discussion.
MORAL WRONGNESS APPROACH
One suggested key to deciding whether behaviour should be criminalised is ‘moral wrongness’. Lord
Devlin, an English judge, was a keen proponent of this stance XXXXXXXXXXHe regarded morality as underpinning
the social fa
ic of society, and immoral behaviour as eroding that fa
ic and consequently destabilising
society. He therefore had no hesitation in advocating the use of the criminal law to deter ‘immoral’
ehaviour. Lord Devlin applied the strength of feelings of ordinary people to defi ne moral wrongness.
If conduct arouses feelings of indignation or revulsion in these people, it is a good indication that the
conduct strikes at the common morality and is a proper object of the criminal law. But herein lies a
major weakness of Lord Devlin’s approach. His defi nition of moral wrongness is far too imprecise as it
leaves the matter to be decided by mere feelings of disgust. Such feelings may well stem from i
ational
prejudices rather than reasoned moral indignation.
2 Article 29. The Declaration was adopted by the United Nations General Assembly in 1948.
3 See P. Devlin, The Enforcement of Morals , Oxford University Press, London, 1965.
Findlay, Mark, et al. Australian Criminal Justice, Oxford University Press, 2014. ProQuest Ebook Central, http:
ebookcentral.proquest.com/li
wsudt/detail.action?docID=1985995.
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CHAPTER 1 CRIMINAL RESPONSIBILITY 9
INDIVIDUAL AUTONOMY APPROACH
Another suggested key to deciding whether the criminal law should be used is the ‘harms to others’
approach. This may be described as individualistic liberalism XXXXXXXXXXThis approach places individual
autonomy at a premium and contends that this and its attendant individual freedoms are vital to the
proper functioning of society. The approach calls for individuals to be accorded as much freedom
as possible, subject only to the minimum restrictions required to provide other individuals sharing
the community with those same freedoms. The criminal law should therefore be used only against
ehaviour that injures the rights and interests of these other people, in other words, behaviour that
harms others. Thus, under this approach, homosexual behaviour between consenting adults should
not be criminalised since they have mutually agreed to engage in this behaviour. Accordingly, these
people should not be subject to the criminal law however reprehensible or immoral their behaviour
might appear in the eyes of some. 5
It should be noted that this ‘harms to others’ approach relates to individuals who have reached a
suffi cient degree of mental maturity to competently decide what is best for themselves. Proponents
would permit the use of the criminal law to protect individuals who lack such maturity, for example,
children and intellectually disabled people. This may be described as legal paternalism as it conveys
an image of the law acting as a protective parent or guardian to especially vulnerable or dependent
individuals. Thus, the criminal law may be applied to prohibit children below a certain age from
engaging in activities such as homosexual or heterosexual intercourse, drinking alcohol in pubs, or
driving a motor vehicle on a public road. These activities are criminally proscribed not because they
are harmful in themselves, but because they have potentially harmful consequences that immature
people may not suffi ciently appreciate.
A criticism against this approach is that it fails to explain adequately the use of the criminal law
in certain areas. For instance, few would today disagree that the dete
ent effect of the criminal law
should be applied to ensure that safety belts are worn by drivers, or that motorcyclists should wear
helmets. Paternalism is an inappropriate explanation here since we are concerned with individuals
who should possess a suffi cient degree of maturity to make their own decisions about the risks of
such activities. It could be contended that these activities might cause harm because the participants
may injure themselves and become a fi nancial burden or source