LAW4189 - Comparative criminal law - 2018

The growth of international criminal jurisdiction and the continual improvement in opportunities for legal cultures to interact with one another have led to a much greater interest, both practical and theoretical, in comparative criminal law over the last decade or so. Even within Australia, the creation of a federal Criminal Code has allowed for an even more extensive use of the possibilities inherent in federalism for comparative criminal law within the one country.

The first topic to be examined is what use can be made of comparative criminal law and the pitfalls that may be encountered in doing so.

Topics to be considered will then include: whether the criminal law should be codified, and what codification means; the role of intention in the criminal law and the different definitions of intention in various legal systems; murder, manslaughter and sexual offences (both consensual and non-consensual); crimes of omission; the prohibition of retrospective criminal offences, the right to silence, trial by jury and topics in sentencing law (including plea bargaining).

Throughout, there will be an emphasis on comparative analysis of the criminal law. Jurisdictions to be selected for comparison include the common law of some Australian States and England; statutory modifications of the common law, such as the partial abolition of the right to silence in England; common-law jurisdictions which have adopted entire criminal codes such as Canada, Malaysia, three of the Australian States and the federal jurisdiction in Australia; and civil-law countries, principally Germany but also, as materials are available, others (such as Spain).

Outcomes

On completion of this unit, students should:

• possess a more sophisticated understanding of the conditions under which individuals should be held morally and legally responsible for their (criminal) actions
• have an appreciation of whether or not there may be any "fundamental principles" which underlie all criminal justice systems
• have an understanding of the uses and abuses of comparative criminal law
• understand the merits or otherwise of codification in both the common law and the civil law
• understand the basic characteristics of criminal procedure under the inquisitorial and adversarial systems
• understand the essential features of the substantive law relating to homicide in Australia and other legal systems
• understand in greater depth the role of intention in the criminal law and the various difficulties involved in defining it
• be able to understand the arguments for and against criminalising omissions in general and creating an offence of failure to rescue in particular
• have a comparative appreciation of the major characteristics of the substantive law relating to sexual offences
• understand the arguments for and against the abolition of the right to silence and the creation of retrospective criminal offences
• possess an enhanced understanding of the options available in sentencing.

Class participation 10%; take-home examination (4500 words): 90%

Minimum total expected workload to achieve the learning outcomes for this unit is 144 hours per semester typically comprising a mixture of scheduled learning activities and independent study. The unit requires on average three/four hours of scheduled activities per week. Scheduled activities may include a combination of teacher directed learning, peer directed learning and online engagement.

See also Unit timetable information