Criminal law is the body of law that covers everything related to crime. It governs criminal offences, regulates the apprehension, charging and trial of alleged offenders, and controls penalties and the treatment of convicted persons. Criminal law is applied throughout society to protect the security of individuals and uphold the criminal justice system.
Principles of Criminal Law
There are four core principles that are prevalent within criminal law and relate directly to an offender’s alleged conduct.
The presumption of innocence
This principle is fundamental. A person charged with an offence is considered innocent until proven guilty. Being charged does not mean a person is guilty, and any discussion should make clear that the offence is only alleged at that stage.
Burden of proof
The burden of proof is the duty to present evidence proving or defeating a claim. In criminal matters, the prosecution bears this burden and must prove the case beyond reasonable doubt. Although a defendant may sometimes raise evidence about a particular issue in a defence, it is not the defendant’s role to prove innocence.
Right to remain silent
The right to silence allows a person to refuse to answer questions from police or officials, subject to limited exceptions (for example, providing name and address for traffic matters). Exercising the right to silence can be critical to protecting your defence. Read more about police interviews and your rights: Right to silence in NSW and what to do if police contact you.
Double jeopardy
This principle prevents a person from being tried or punished twice for the same offence, subject to limited statutory exceptions in Australia. It protects against repeated prosecution for the same conduct.
Elements of a crime
Most offences involve two broad elements: mens rea and actus reus. To constitute criminal liability, both are ordinarily required at the time of the offence (noting that some statutory offences are strict liability and do not require mens rea).
Mens rea — Latin for “guilty mind”. This refers to the mental state of the accused at the time, such as intention, knowledge, recklessness or foresight, depending on the offence.
Actus reus — the “criminal act” or omission that comprises the physical elements of the offence as required by statute.
In a criminal trial, the prosecution must show that a defendant:
- committed a relevant physical act (or failed to act where the law required action), and
- possessed the required mental state for the offence charged.
For example, to prove murder the prosecution must establish that the defendant caused the death of another person and intended to cause their death (or had the requisite mental state under the relevant statute).
Need guidance on a charge or court process in NSW? Call (02) 8806 0866 or visit our contact page. For an overview of procedure, see NSW criminal court procedures.
