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Friday, 4 November 2011

Critically evaluate the accuracy or otherwise of the proposition: In Australia the involuntary detention of a citizen can occur only by the order of a court after a finding of criminal Guilt


There is a partial truth to this. The common foundations for entailing involuntary detention in the criminal law of Australia is divided into two (2) major aspects: (1) the defendant have got to be attested to have carried out a guilty action at the same time as possessing a guilty state of mind, and (2) the Court must order involuntary detention after finding the criminal guilty. The physical components are jointly labeled the actus reus and the supplementary mental condition is labeled as the mens rea. It is the basic responsibility of the prosecution to establish both of these components of the offence to the contentment of the judge or jury beyond reasonable doubt in order for the involuntary detention to take place. Without such evidence the defendant will be exonerated (, 1968).

Furthermore, the prosecution is required to establish that the defendant carried out the crime whilst in a particular mental condition. The mens rea essential prior to an individual could be condemned of a crime is indicated in the characterization of every crime. There are several states of mind which independently or jointly can make up the needed mens rea for a criminal offence. These include intention, recklessness and negligence. From time to time, the characterization of a criminal offence will make it apparent which of these mental conditions is suitable, however occasionally court judgments explicate the requirements of the description more specifically (, 1968).

Involuntary Detention in Australia

Involuntary detention is made of more than merely an action. It similarly takes account of whatever conditions and outcomes are acknowledged for legal responsibility for the crime under consideration. In other words, it consists of all the components of an offence except the mental component. Crimes worthy of involuntary detention can be separated into a couple of classes. Initially, there are conduct crimes where the act is the illegal and illicit behavior itself. For instance, the act of the offence of reckless driving is merely driving a mechanically driven motor vehicle on a street or other public place. No damage or outcome of that reckless driving is required be recognized. The second kind is deemed as result crimes where the act of the crime needs evidence that the demeanor brought about an illegal and illicit consequence or end result. For instance, the act of the offence of criminal damage is that possessions owned by another individual have to be ruined or damaged (, 1986).

In Australia, involuntary detention is decided based on the following factors:

 1) The admission of the crime of the person has to be voluntary

            The offender’s conduct of admission to the crime has to be voluntary or unreservedly resolved if he is to bring upon himself liability. It may possibly be involuntary for various causes. The following represents these causes. 


Detention under Terrorism Legislation 

Detention under terrorism legislation takes place where the offender carries out a terrorist action but is oblivious of what he is carrying out, or is not on top of his acts, on account of several factor external of the terrorist. Occasionally detained terrorists can react to something with an impulsive reflex action over which they have no direct power. Even though, to some extent, different this is occasionally categorized as a kind of automatism. The behavior may possibly be involuntary in that it is physically enforced by someone else, in which instance there will be an absence of actus reus.

One collection of detention cases under terrorism legislation which cannot be argued in the context of voluntary actions is frequently denoted as the “state of affairs” suits. These offences are characterized not in the context of the defendant carrying out a constructive action however consisting in the defendant being found, being in control or being in control. In a number of such suits all the prosecution is required to establish are the subsistence of the factual conditions which make up the terrorism – the subsistence of the state of affairs. (, 1986)

Immigration Detention

There is an issue whether an immigrant can be deemed criminally responsible for a failure to do something. The common rule is that there can be no legal responsibility for a failure to do something, except at the instance of the failure to act, the immigrant was underneath a legal responsibility to seize constructive action unless a decree distinctively so grants, or the common immigration law obliges a responsibility upon an individual to take action in a specific manner towards another, a measly oversight or omission to take action could not bring about criminal liability (, 1986).

A positive duty to take action subsists such as responsibility being caused by statute. Legal responsibility for failure to take action will be forced where the immigrant can be confirmed to have been under a statutory obligation to acquire positive action. An additional is a duty based on a contract. Where an individual is under a positive responsibility to take action for the reason of his commitments under a contract, his failure to carry out the contractual responsibility under consideration can structure the foundation of criminal liability. A third is public duty. Correspondingly, there is the voluntary supposition of responsibility or dependence. There is a common law duty of care where there is a connection of dependence involving the immigrant and the government. Therefore if someone willingly presumes accountability for another individual then they similarly presume the positive duty to take action act for the general wellbeing of that individual and may possibly be legally responsible for omissions which prove deadly. (, 1994) And finally, there is the duty by reason of the immigrant’s previous behavior. If the defendant by chance consigns an action that brings about harm, and later becomes conscious of the hazard he has formed, there begins a responsibility to act rationally to forestall that hazard.

2) The Criminal Intention of the offender must be proven without reasonable doubt by the Court for involuntary detention to push through.

  Detention prior to Trial

            When the characterization of a crime needs the incidence of specific outcomes, the prosecution has to establish that it was the defendant’s behavior which triggered those outcomes to take place. There are a couple of kinds of causation. One is the causation in fact, in which the “But For” experiment is employed.  (, 1948) Another is the causation in law, for which, for instance in homicide lawsuits, the defendant’s actions have to be the working and considerable reason and grounds of fatality. 

In the context of law there are a couple of kinds of intention. Direct intent is the characteristic condition where the outcomes of an individual’s actions are preferred. Oblique intent, also recognized as foresight intent, implies the condition where the outcome is anticipated by the defendant as practically certain, even though it is not preferred for its own sake, and the defendant carries on with his acts at any rate. (, 1948)

To necessitating evidence that it was the defendant’s intention to make happen a specific outcome may possibly entail placing an extremely serious evidential burden on the prosecution. Not unexpectedly, provided the above illustration, criminal law usually simply needs evidence of oblique intent (ie, foresight intent) in place of direct intent.

The courts have affirmed that foresight of outcomes can merely be proof of intention if the defendant is aware that those outcomes would undeniably come about. Therefore, it is not enough that the defendant simply anticipated a likelihood of a certain incidence. At one instance, involuntary detention was authority for the perspective that an individual anticipated and anticipated the natural and likely outcomes of his actions. As a result, where foresight is needed to be recognized an individual is not to be deemed as meaning the natural and likely outcomes of his actions basically for the reason that they were natural and likely, even though a jury may possibly deduce that from observing all the facts. The test is consequently subjective and a jury is to come to a decision what the defendant’s intention was from bearing in mind all the proof.

It is imperative to indicate that foresight of the outcomes is not identical as intention but merely proof of intention. (, 1948) The justification of prescience of the outcomes in Hancock and Shankland and the Nedrick course, where suitable, are pertinent to all crimes and not only murder. A court or jury may similarly deduce that an outcome is anticipated, nonetheless it is not preferred, when the outcome is an almost positive result of the action, and the defendant is aware that it is a practically particular outcome.


Recklessness is the acquisition of an inexcusable risk. Nevertheless, two dissimilar tests have been created by the courts, the consequence of which is that recklessness now has a couple of unlike legal connotations which relate to dissimilar offences. The initial test for recklessness was subjective, ie the defendant is aware of the risk, is keen to deal with it and deals with it intentionally. The subject that has to be posed is whether the risk in the defendant’s mind at the instance the offence was being carried out (, 1990).

The second test for recklessness is objective. Specifically, the risk has to be understandable to the reasonable individual, in that any reasonable individual would have acknowledged it if he had reflected about it. An individual is reckless in the new broader context when he carries out an act which generates an understandable risk, and, when carrying out the action, he has either granted no consideration to the likelihood of such a risk taking place or he acknowledged that a little risk subsisted, but carried on to put up with it. (, 1990)

The risk has to be understandable to the sensibly prudent individual. It need not be understandable to the defendant. The individual who pauses to reflect will still be legally responsible if he acknowledged that there was some risk. (, 1948)


Negligence consists of falling below the standard of the ordinary reasonable person. The test is objective, based on the hypothetical person, and involves the defendant either doing something the reasonable person would not do, or not doing something which the reasonable person would do. It does not matter that the defendant was unaware that something dangerous might happen, if the “reasonable person” would have realized the risk, and taken steps to avoid it. (, 1995)

C. Other Crimes applicable for Involuntary Detention


A. Sexual Harassment

Sexual harassment is unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when submission to or rejection of this conduct explicitly or implicitly affects a person’s employment or education, unreasonably interferes with a person’s work or educational performance, or creates an intimidating, hostile or offensive working or learning environment. In the interest of preventing sexual harassment, the University will respond to reports of any such conduct. Sexual harassment may include incidents between any members of the University community, including faculty and other academic appointees, staff, coaches, house staff, students, and non-student or non-employee participants in University programs, such as vendors, contractors, visitors, and patients. Sexual harassment may occur in hierarchical relationships or between peers, or between persons of the same sex or opposite sex (, 1974).

B. Child Molestation

In determining whether the reported conduct constitutes child molestation, consideration shall be given to the record of the conduct as a whole and to the totality of the circumstances, including the context in which the conduct occurred. While romantic relationships between members of the family and the children may begin as consensual and they may evolve into situations that lead to charges of child molestation, subject to this policy. Child molestation that is not sexual in nature but is based on gender, sex-stereotyping, or sexual orientation also is prohibited by the government’s nondiscrimination policies if it is sufficiently severe to deny a person’s ability to participate in the creation of a hostile environment. Thus, in determining whether a hostile environment due to child molestation exists, the government may take into account acts of child molestation based on gender.

C. Drug-related Crime

It is often recognized that drug-related crime are triggered by the violence that is brought about by the altered state of mind that illicit drugs induce. In attempting to comprehend the manners in which alcohol and drug utilization may have a say to violent actions, it is similarly imperative to deem the manner in which substance abuse is about human actions generally. A number of attempts have been carried out in the study of psychological expectancies in relation to alcohol’s consequence on actions, the connection involving alcohol and cognitive functioning, and the dynamic developmental consequences of untimely introduction to alcohol and aggression among young individuals and among women who have been wronged as kids and as grown-ups.

Comparable work has tried to recognize the connection involving illicit drugs and behavior, even though as a result of the interest centered on the indiscretion of these substances; this organization of work have the tendency be most caught up with unlawful behaviors that may well be connected with drugs. Instances from this literature takes account of assessments of the connections involving drug use and criminal behavior amongst juveniles; associations involving substance use and domestic aggression (, 1992); the manners in which the employment and circulation of illicit drugs are connected to all kinds of crime, principally nonviolent property misdemeanors; and the effects of drug employment on the capability to sustain interpersonal relationships.




The claim that crime is an acquired behavior from an individual’s environment has been a subject of countless debate in the existing literature. Moreover, there is also the claim that crime and rationality of an individual is closely connected.  (1986) has indicated, the occurrence of completed crime is a very faulty gauge of the achievement of crime control, given that a low level of concluded crime is in agreement with high degrees of apprehension and of valuable crime-avoidance actions. To a certain extent, the involuntary detention policy of Australia is supposed to aspire to make use of whatever resources as accessible to diminish the criminal risk available in different elements of the social setting – which may possibly be abstractly operationalized as the incidence of crime that would be stumbled upon by a possible victim in a specific situation who acquired some specified level of safety measure. From this standpoint, crafting involuntary detention policies entails creating conditional predictions on the subject of the behaviour of offenders under diverse conditions, as well as diverse kinds of disciplinary threats.



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