Depending on the construction of a particular crime, criminal responsibility is generally analysed in terms of an individual carrying out proscribed acts with a culpable state of mind. The framework of criminal responsibility can be extended in various ways and those extended forms will be synthesised and discussed in this chapter.The first extension category encompasses the inchoate crimes of attempt, conspiracy and incitement. The term ‘inchoate’ comes from the Latin past participle of ‘incohare’ meaning ‘to begin’ or ‘start work on’. These are substantive crimes which extend liability back in time and to other people so that conduct is criminalised, which arguably is not directly harmful but which is regarded as culpable for policy reasons and allows earlier intervention of law enforcement authorities to prevent the completed offence.The second category is complicity, which is a concept allowing for the extension of criminal liability to people other than the accused person who carries out the conduct with the requisite mental element constituting the offence. There are various forms of principal and accessorial criminal liability within the concept of complicity.

Chapters 6 and 7 dealt with the substantive requirements of the torts of trespass to the person and trespass to property and goods. This chapter deals with the defences and remedies available to those actions.Defences to trespass based on self-help include the defences of self-defence or defence of another, defence of property, necessity or abatement. Defences based on justification are consent and the exercise of disciplinary powers. There is a fault-based defence of inevitable accident. Provocation, mistake, contributory negligence and the incapacity of the defendant are not defences to trespass.The remedies available for trespass to the person include damages (nominal, compensatory, aggravated and exemplary) and injunctions.

This chapter will address the two nuisance torts: private nuisance and public nuisance. Both torts concern interferences with the plaintiff’s ability to use and enjoy their land, with the extent of the interference the key determinant of which tort is applicable. Private nuisance involves an interference with the plaintiff’s use and enjoyment of their individual property rights, whereas public nuisance involves an interference with the health safety, comfort and convenience of the public at large, but where the plaintiff has suffered special or particular damage over and above other members of the public.The nuisance torts play an important role in providing a cause of action for environmental pollutants, such as noise, smell, smoke and fumes. The torts are adaptive to contemporary twenty-first century issues – for instance, it is possible that these torts can be utilised to obtain remedies from operators of facilities that emit greenhouse gas emissions for harm caused by global warming and rising sea levels.

As we have seen, to establish that a defendant is liable in the tort of negligence, the plaintiff has to prove, on the balance of probabilities, that (1) a duty was owed by the defendant to the plaintiff; (2) the duty was breached; and (3) the breach caused compensable damage within the scope of liability. The first of these requirements, the duty of care, was the key innovation established by the case of Donoghue v Stevenson and the concepts of ‘neighbourhood’ and ‘reasonable foreseeability’ are central to the reasoning in that case. However, although these concepts are easy to describe and have theoretical elegance, they are much more difficult to apply to a given relationship. This chapter shows the attempt by Australian courts to find a unifying principle or single approach by which to answer the question of duty in a novel case, and then a resolution of sorts, occurring around 2000–01, that any such test is likely to be problematic. The current approach in a novel case is the ‘multi-factorial’ or ‘salient features’ approach.

The criminal law comprises a state response to wrongdoing on the part of the population, proscribing conduct that lies outside of the normal expected conduct of citizens. As such, the criminal law seeks to regulate socially transgressive or unacceptable (criminal) behaviour.In providing a framework of rules to address these behaviours, the criminal law actually comprises two discrete branches: substantive criminal law and procedural criminal law. This chapter is divided into two main sections. Section 1.2 looks at the nature of the criminal law; its purposes, limits and sources. This part examines a number of important issues, such as the purposes of the criminal law, the legitimate limits on its scope and its sources. Section 1.3 examines the notion of criminal responsibility, looking at who may be held liable for a criminal offence and the principles that underlie the state’s obligations in proving an offence.

Drugs are endemic in the criminal law, not the least because many offenders are regular users of them. Understanding drug law and policy begins with understanding the diversity of drug effects. In this chapter, we consider some of the key offence provisions relating to drug crime. From the outset it is important to recognise that the substantive criminal law overlaps heavily with a range of investigative and procedural law, including rules of evidence. For present purposes we are confining the current work to the offence aspects of drug offences and restricting the analysis to unlawful drugs as opposed to the control of medicines. The investigation of crime, especially drug offences, has evolved into a highly complicated field of law and practice, involving intersecting state and federal laws regulating surveillance, telecommunications, controlled purchases and covert investigation. This field of law is highly technical, and beyond the scope of the present chapter.

This chapter considers the circumstances in which a person will be liable for the torts of another person. It primarily looks at the doctrines of vicarious liability (the liability of am employer for the tortious actions of an employee or a principal for the tortious actions of their agent) and non-delegable duties (the circumstances in which a duty arises which cannot be delegated to another person, such as a contractor). Note that there is often advocacy to change the legal position – to extend the legal circumstances in which liability can be extended to a third party – but also note that redefinition of relationships (such as the employment relationship) often requires adjustments in the law.

This chapter covers offences of violence, with the concept of violence encompassing both physical aggression (here termed ‘contact assaults’) and threatening behaviour (‘non-contact assaults’). The latter category includes stalking, intimidation and harassment, offending behaviours that have gained increasing social prominence and recognition by the criminal law in recent decades. Following this, the chapter turns to consideration of domestic violence, the response to which comprises a mixture of substantive and procedural law, and violence against children.Aside from the important common law principles of assault and battery, the offences under consideration here are primarily statutory and are largely, though not exclusively, contained in the states’ Crimes Acts (Crimes Act 1900 (NSW), Crimes Act 1900 (ACT), Criminal Law Consolidation Act 1935 (SA), and Crimes Act 1958 (Vic)). The title of this chapter reflects the enduring use and influence of common law assault as the base offence of violence and an underpinning concept in many offences of personal violence and other forms of unlawful intimidatory and threatening behaviour.

This chapter provides an overview of the growing area of federal criminal law. The criminal jurisdiction of the Commonwealth is tied to legislative power available through theAustralian Constitution. The Constitution contains no explicit power to make laws concerning crime. Nevertheless, Commonwealth criminal law has been gradually expanding.This chapter will discuss how the Commonwealth’s jurisdiction over crime began slowly, expanding rapidly during World Wars I and II, and then growing exponentiallyover the last 30 years with the advent of the Criminal Code Act 1995 (Cth), the Schedule to which contains the Criminal Code.

A defendant wishing to defeat or reduce liability pursuant to a claim in negligence can prove a relevant defence. The key defences are contributory negligence, voluntary assumption of risk, the plaintiff’s own intoxication, engagement in dangerous recreational or unlawful activities, or other statutory defences such as failure to bring proceedings within the time limits prescribed by statute.Contributory negligence is the plaintiff’s own failure to meet the standard of care required for their own protection, where that failure is causally relevant to the injury. The defendant must establish that the plaintiff failed to take reasonable care for their own safety or the protection of their own interests and that this failure was a cause of their harm created by the plaintiff’s conduct. A successful defence of contributory negligence results in an apportionment of the damages between the plaintiff and the defendant.