Describe the nature of crime, the difference between summary and indictable offences, and the early stages of criminal procedure.

What this dot point is asking

This dot point asks you to explain what makes conduct a crime, the elements of an offence, the summary and indictable distinction, and how a criminal matter starts.

What is a crime?

A crime is an act or omission that the law forbids and that the state may punish on behalf of the community. Even when there is an individual victim, a crime is treated as a wrong against society as a whole, which is why the state, not the victim, prosecutes. In Tasmania most serious crimes are set out in the Criminal Code Act 1924 (Tas), while many minor offences are created by other Acts and regulations.

The elements of an offence

Most criminal offences require two elements that the prosecution must prove:

• The actus reus, the physical element, meaning the guilty act or omission. For theft this is taking another person's property.
• The mens rea, the mental element, meaning the guilty mind or required state of mind, such as intention, knowledge or recklessness. For theft this is the intention to permanently deprive the owner.

Some offences are strict liability offences, where no mental element needs to be proved, such as many traffic and regulatory offences.

Summary and indictable offences

Offences are divided according to their seriousness:

• Summary offences are minor crimes, such as low-level traffic offences, minor assaults and public order offences. They are heard and decided by a magistrate sitting alone in the Magistrates Court, usually quickly and without a jury.
• Indictable offences are serious crimes, such as murder, rape, serious assault and large-scale fraud. They are tried in the Supreme Court of Tasmania, generally before a judge and jury. Some less serious indictable offences may be dealt with summarily if the law allows and the parties agree.

The early stages of criminal procedure

A criminal matter typically moves through these early stages:

• Investigation: police gather evidence, question witnesses and may search premises under proper authority.
• Arrest and charge: if there is sufficient evidence, police arrest the suspect and lay a charge, formally accusing the person of an offence.
• Bail or remand: the accused may be released on bail (sometimes with conditions) while awaiting court, or held on remand if release is refused.
• First court appearance: for indictable matters there may be a committal or preliminary process to decide whether there is enough evidence to go to trial; serious matters are then committed to the Supreme Court.

Throughout, the accused is presumed innocent and the burden of proof rests on the prosecution.

For exam answers, define crime as a punishable wrong against society, explain the actus reus and mens rea, distinguish summary from indictable offences with the correct courts, and outline the steps from investigation to first court appearance.