A public defender in NSW has created a fantastic resource for criminal lawyers: John Stratton’s Criminal Law Survival Kit. A lot of work has gone into this. It is in the tradition of Ross on Crime, the legendary alphabetically organised encyclopedia of criminal law in Victoria, except there are hyperlinks to most of the cases, which is obviously bloody marvellous, and it’s free, which is also pretty damn good. Speaking of Ross on Crime, next time you see a copy, grab the opportunity to read the chapter headed “Jazz”.
I have mentioned before the Judicial College of Victoria’s Sentencing Manual. That’s an extraordinary document, and there should be more of them. There is a Criminal Law wiki under enthusiastic development by Englishmen, though I can’t find the link for the moment.
Criminal law is parochial, but parts of Stratton’s site will be useful to criminal lawyers throughout Australia. Here’s a bit to show you what it’s like:
‘(a) Burden of Proof
The burden and onus of proof is always on the prosecution to prove the guilt of the accused beyond a reasonable doubt: s. 141 Evidence Act, Woolmington  AC 462, Commonwealth Criminal Code section 13.1-13.2.This phrase ‘beyond reasonable doubt’ should not be explained to the jury: Green (1971) 126 CLR 28. A reasonable doubt is not to be confined to a rational doubt: Green (1971) 126 CLR 28, Goff ( 2000) 112 A Crim R 485.
The jury should not be told that the doubt must be a reasonable one, or that it must be based on reason: Li  NSWCCA 386. If the accused’s account is a reasonably possible account, the jury must be satisfied beyond a reasonable doubt that those events did not happen: Moffa (1977) 138 CLR 601.
A corollary of proof beyond reasonable doubt is that if there is a reasonable possibility of innocence the accused must be acquitted: Standley (1996) 90 A Crim R 67. The jury should not be directed in terms which suggest that they should acquit the accused if his account is reasonably possible on the balance of probabilities: Soto-Sanchez  NSWCCA 160.
The jury should not be told that they must choose between two competing versions: Towner (1991) 56 A Crim R 221, Bernthaller (1994) PD , E (1996) 89 A Crim R 325. If the jury finds that there is a rational defence hypothesis consistent with the facts, they must acquit: Barca (1975) 133 CLR 82 at 105. The jury should be told it can reject the accused’s account and still find the accused not guilty: Bernthaller, E.
The jury need not be directed in terms of the presumption of innocence: Palmer (1992) 64 A Crim R 1, but see Reeves (1992) 29 NSWLR 109.
The evidential onus of adducing some evidence before the issue is raised may be upon the accused in the traditional defences like provocation, self-defence, and mistake: Jayensa  AC 618.
‘Why Would She Lie?’
The jury should not be asked ‘Why would the complainant lie’ because this reverses the onus of proof: E (1996) 39 NSWLR 450, Elsworthy (NSW CCA 24/5/96, (1996) PD , Uhrig (NSW CCA 24/10/96), AH (1997) 42 NSWLR 702, 98 A Crim R 71, Jovanovic (1997) 42 NSWLR 520, MM  NSWCCA 78, Palmer (1997-8) 193 CLR 1, (1997) 72 ALJR 254. In a case where the jury might be considering why a complainant might lie, it was suggested in Jovanich (1997) 42 NSWLR 520 that the following direction be given:
(1) As you have been told, the essential elements of the Crown case must be proved beyond reasonable doubt or the accused must be acquitted. If the case turns of the evidence of X, you must be satisfied beyond reasonable doubt that X has told the truth.
(2) As you have been told, it is your duty to decide whether you accept the evidence of a witness in whole or in part. X is no exception to that.
(3) It would be wrong to conclude that X is telling the truth because there is no apparent reason, in your view, for X to lie. People lie for all sorts of reasons. Sometimes it is apparent. Sometimes it is not. Sometimes the reason is discovered. Sometimes it is not. You cannot be satisfied that X is telling the truth merely because there is no apparent reason for X to have made up these allegations. There might be a reason for X to be untruthful that nobody knows about.’
- Prosecutors’ obligations in criminal and disciplinary cases
- Da Fink reckons the Bureau should act with the fairness of Crown prosecutors
- Admissibility rulings may be revisited
- When will a professional discipline proceeding be stayed pending overlapping criminal charges?
- Lawyer to gangland figures not guilty of alleged crimes