Criminal Law: NSW Common Law and Case Law

This document discusses the common law nature of New South Wales (NSW) in relation to the Crimes Act 1900 and case law. It explores the concept of mens rea and how subjective and objective tests are used to determine its existence. The document also explains the law of automatism and its limited relief for women suffering from battered women syndrome. Additionally, it evaluates how the law of attempts holds criminals accountable and analyzes the elements of larceny in NSW criminal law.

Criminal Law

Contents
Question 1. NSW is a common-law state. Discuss in the context of the Crimes Act 1900
(NSW) and case law....................................................................................................................1
Question 2. Explain how subjective and objective tests are relevant to when determining if
mens rea exists. In your answer, give examples of specific offences under NSW criminal law.1
Question 3. The Law of Automatism gives limited relief to women suffering from “battered
women syndrome”. Explain.........................................................................................................2
Question 4. Evaluate, providing legislation and case law as applicable, how the law of
attempts holds criminals accountable. In your answer you should have reference to legislation
and any relevant case law............................................................................................................2
Question 5. Analyse the elements of law of larceny in NSW criminal law with reference to the
Crimes Act 1900 (NSW) and to case law....................................................................................3
REFERENCES................................................................................................................................4

Question 1. NSW is a common-law state. Discuss in the context of the Crimes Act 1900 (NSW)
and case law.
There are mainly 2 types of sources of law within the confines of Australia. These are recognised
to be common law or case laws. Both are duly dependent upon the decisions undertaken by judge
within the premises of superior courts and legislation or in simple terms, the laws which are
devised by the Parliament. In this regard, it is analysed that New South Wales is a region
governed majorly by common law. This can be said in the light of the Crimes Act 1900 (NSW)
and the case laws. Crimes Act 1900 (NSW) is determined as the common law which states that
every individual has right to secure themselves from the strict governmental laws. As per the
case law, it can be said that every accused has core right to save himself from legal
misrepresentations. Individual do not has any kind of right towards legal lawyer in court at
public expense. However, there is a common law right to a fair trial. It can be further said that
individual can easily secure themselves by making use of legal laws. In addition to this, it is the
preliminary responsibility of every individual to follow this norm as this is only one law that
provides equivalent support to connected person.
Question 2. Explain how subjective and objective tests are relevant to when determining if mens
rea exists. In your answer, give examples of specific offences under NSW criminal law.
In relation to criminal law, mens rea is associated to the mindset held by a defendant. This is
recognised to be the mental element of an individual’s intent to execute a crime or knowledge
regarding the event that the person’s course of action would result in commitment of a criminal
activity. This is recognised as a crucial part of many of the crimes. In order to determine the
existence of mens rea, 2 types of tests are usually conducted, namely, subjective and objective.
With respect to other, the former is associated to the perspective held by the defendant. In
context of oblique intent, it is linked to determining if the defendant can foresee the extent of
chance of an outcome taking place as a result of their course of action. On the other hand, an
objective test views the same from the mindset of any reasonable individual. As per New South
Wales Criminal Law, there are certain specific offences of assaulting the police during execution
of duty under sections 60 and 58. The penalty for the same, ranges from a time period of 5 years
to a maximum of 14 years.
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Question 3. The Law of Automatism gives limited relief to women suffering from “battered
women syndrome”. Explain.
The Law of Automatism is recognized to be a seldom utilized criminal defence. This is
acknowledged to be one of those mental condition defences which are linked to the mental state
held by a defendant. This implies that automatism can occur in forms such as lack of
voluntariness, lack of consciousness or excuse. It simply means that hereby the defendant was
not having any knowledge of their course of action while undergoing a specific movement which
resulted in occurrence of an illegal activity. For instance: During the year 2002, Peter Buck was
acknowledged to be cleared off some charges encompassing assault occurring as a result of
automatism taking place with bad correspondence happening among sleep pills and alcohol. In
relation to this law, Battered Women Syndrome (BWS) is a concept which owes its emergence to
the era of 1990s that witnessed a number of murder events taking place within England whereby
women killed their violent partner in return of cumulative abuse, instead of reaction to a
particular provocation activity. In relation to this law, it is seen that women inflicted with
“Battered Women Syndrome” (BWS) are given limited relief because over the course of time,
there have been instances whereby it is found that women have been using BWS as an excuse to
commit a number of crimes such as frauds, homicides and many more.
Question 4. Evaluate, providing legislation and case law as applicable, how the law of attempts
holds criminals accountable. In your answer you should have reference to legislation and
any relevant case law.
Accountability alludes to the procedures, standards, and structures that hold the populace and
open authorities legitimately answerable for their activities and that force sanctions on the off
chance that they damage the law. Accountability is fundamental if systemic threats to the
standard of law are to be revised. This includes guaranteeing there are ramifications for criminal
conduct; instruments to address exemption for past violations; flat responsibility and vertical
responsibility. In the absence of accountability, human rights will be denied, wrongdoing will
prosper, and exemption for past clash related violations will persevere, undermining authenticity
and possibilities for compromise. The convergence of intensity in any one branch, establishment,
or level of government regularly prompts maltreatment of intensity and debasement that flat and
vertical responsibility systems can help forestall. In this regard, it is identified that law of
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attempts also holds criminals accountable as it is imperative to realize the significance of being
accountable to the law.
Question 5. Analyse the elements of law of larceny in NSW criminal law with reference to the
Crimes Act 1900 (NSW) and to case law
As per the provisions of Crimes Act 1900 (NSW), it is analysed that larcency in NSW possesses
3 different types of elements, which are required to be prevalent for the purpose of proving a
defendant to be guilty. There are 3 such elements and in the absence of any of the below
mentioned 3 aspects, it can be stated that defendant is not found to be guilty. The brief overview
of these elements is given as under:-
 The property should pertain to an individual other than the person who is regarded to be
the defendant.
 The second element of the same is the importance that the respective property should
have been physically taken and carried away.
 The third and the last element of the same is regarded to be the assurance that all of such
course of action is executed in absence of the content taken away from the right owner.
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REFERENCES
Books and Journals
Ormerod, D. and Laird, K., 2018. Smith, Hogan, and Ormerod's Criminal Law. Oxford
University Press.
Kadish, S.H., Schulhofer, S.J. and Barkow, R.E., 2016. Criminal law and its processes: Cases
and materials. Wolters Kluwer Law & Business.
Bohm, R.M. and Haley, K.N., 2017. Introduction to criminal justice. McGraw-Hill Education.
Simbeye, Y., 2017. Immunity and international criminal law. Routledge.
Peers, S., 2016. EU Justice and Home Affairs Law: EU Justice and Home Affairs Law: Volume
II: EU Criminal Law, Policing, and Civil Law. Oxford University Press.
Robinson, P.H., 2019. Justice, liability, and blame: Community views and the criminal law.
Routledge.
Diamantis, M.E., 2019. Corporate essence and identity in criminal law. Journal of Business
Ethics, 154(4), pp.955-966.
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