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The latest issue of the Criminal Law Journal (Volume 40 Part 5) contains the following material:
Reasonable reform: Understanding the knowledge of consent provision in section 61HA(3)(c) of the Crimes Act 1900 (NSW) – James Monaghan and Gail Mason
In 2007, a novel fault element for the crime of sexual assault was introduced in s 61HA(3)(c) of the Crimes Act 1900 (NSW). This section provides that a defendant is taken to know that the complainant was not consenting to sexual intercourse if the defendant had no reasonable grounds for believing that the complainant was consenting. This article presents three possible readings of the legal test in s 61HA(3)(c), arguing that an early reading of the provision ought to be rejected, and that the current prevailing reading has unintended and unacknowledged consequences for the law of recklessness. A third, preferred, reading best fulfils the purposes of the legislation, without encroaching on the law of recklessness.
Presumption of innocence in Australia: A threatened species – Anthony Gray
Legislation in Australia is increasingly departing from the presumption of innocence for those accused of a crime. After documenting specific instances in the current statute book, this article considers the High Court’s response to date to legislative abrogation of the presumption. Though the presumption is of ancient vintage and is supported by strong rationale and links with other fundamental fair trial principles, the High Court has often validated laws departing from the presumption on the basis that parliaments have power to enact rules of evidence. However, in recent jurisprudence on Ch III of the Constitution, the High Court has found that it is an essential characteristic of the criminal trial in Australia that proceedings be accusatorial and adversarial in nature. Through this means, the High Court has created the constitutional potential for reverse onus provisions to be challenged, particularly where they practically permit the possibility of a person being convicted despite the existence of reasonable doubt as to their guilt.
- Testing the limits of criminal advocacy – Robert S Shiels
- Alqudsi v The Queen: Institutional approaches to the functional protection of trial by jury under section 80 of the Constitution – Benjamin Tomasi
- Wrongful conviction in South Australia: R v Holt (1898) – Mark Finnane
For the PDF version of the table of contents, click here: Crim LJ Vol 40 No 5 Contents.