Breaking the law covers everything from minor traffic infringements, drug possession up to more serious offences like terrorism. This quick guide to criminal law will tell you what makes up a criminal offence, whose job it is to prove the crime as well as some of the police obligations to you if you are searched in relation to a crime.
Many crimes are found in the Crimes Act 1900 (NSW), including the well-known ones such as murder, assault and dangerous driving, along with a many more obscure crimes you may not have heard of, like assault on persons preserving a shipwreck, or “peeping and prying.”
If you have been charged with an offence, the prosecution will start preparing evidence to present in court (and you should too!). But the actual burden of proving the offence is their job – and if they can’t prove all the elements of the case against you, then either the charges will be dropped before trial (and a good criminal lawyer can help persuade them to do this), or in court they will lose the case.
Most offences require you to have both the intention as well as the action of committing the crime. This means that, the prosecution will have to prove you had knowledge and intent of committing the crime.
For example, if drugs were found in your pocket, but the prosecution were not able to prove that you knew or suspected that they were there, you are not guilty.
You might be familiar with the expression ‘innocent until proven guilty,’ and even wondered where it came from. In fact, it has been part of our system of law for centuries, protecting an individual against charges from a much more powerful, highly-resourced state. One famous English jurist emphasised this when he stated that it was “better that ten guilty persons escape than one innocent suffer.”
This was cemented in an English court case nearly eighty years ago.
22 year old Reginald Woolmington set off to visit his teenage wife who had left him just three months after their wedding.
He had stolen a gun from his employe, rode his bike to where she was staying and shot her in the heart. He claimed that he had only intended to threaten to kill himself if she didn’t come back to him and accidently shot her when demonstrating his intention.
His story would become immortalised – not in a dramatic Hollywood film – but as a case that would set the standard of proof in criminal trials for decades to come, both in England and Australia.
Whether or not you think his story sounds credible, the prosecution had to prove that Woolmington had intended to murder his wife, which they didn’t do.
Woolmington was released just three days before what was supposed to have been his date of execution. Luckily for him, the judge in the case ruled that it was the duty of the prosecution to prove the guilt of the accused, “no matter what the charge or where the trial.”
Unless the prosecution could prove that Woolmington actually intended to kill his wife, the presumption of innocence remained.
However the ‘golden thread’ is of course subject to some exceptions in the law. Some crimes do not require this mental element, they are known as ‘strict liability’ offences and if you committed the crime, you are guilty, even if you didn’t have the intent, or even know that you were committing a crime.
‘Strict liability’ refers to an offence where the intention is not necessary, such as negligence. It is also a requirement in an increasing amount of crimes, such as statutory rape – having sex with a minor is a crime, even if you didn’t know the person was under 16 years of age.
It is also important to note that the law controls the powers that police have, too. There are specific rules and procedures for them to follow, and in many cases there are good incentives for police to follow them when collecting evidence.
Evidence obtained illegally might not be allowed to be presented in court. And an illegal search of your house or car which led to a drug possession charge may actually be grounds for dropping the charge altogether.
To find out more about criminal law, and recent changes, areas of debate and advice in criminal matters, visit our regularly updated blog.