Book Review: Waller and Williams Criminal Law

I was recently asked by Lexis Nexis Australia if I would be interested in reviewing one of the books they publish.  Not knowing much about Australian law, I was happy to review one from the perspective of an American attorney looking for an introduction to the subject.  Given that criminal law is one of the most common subjects on the blog, I chose Thalia Anthony et al., Waller & Williams Criminal Law: Text and Cases (2013) to review, and Lexis Nexis Australia provided a free copy.

I. The Book

At over 1000 pages, Waller & Williams is a fairly comprehensive book.  Overall it’s broken into three parts: an introduction into the theory and justifications behind the criminal law (as well as a bit of criminal procedure), a section on specific criminal offenses, and a section on defenses.  Concepts are explained with a mixture of notes from the authors, statutory text, and excerpts from important cases.  This approach mirrors that found in many American casebooks and was very easy to follow.

Overall I was struck by how approachable the subject was.  Like the United States, Australia is a common law country.  This means that the general structure of the criminal law (e.g. the requirements of actus reus and mens rea) and the definitions of many crimes and defenses are the same or very similar to those in the United States.  Also like the United States, Australia is a federation.  This means that the Australian states have their own independent systems of laws separate from the Commonwealth’s.  Just as in the United States, this approach means that we can analyze a given problem in multiple contexts.

Just as the patchwork of criminal laws in the United States has resulted in a variety of insanity defenses in the different states, the same is true in Australia.  Further inspired by the international nature of Batman, Inc. (which included an Australian member, the Ranger), I decided to look at how supervillains claiming a defense of insanity would fare in Australia.

II. Insanity in Australia

In addition to coverage of the Commonwealth laws, Waller & Williams includes significant coverage of the laws in New South Wales and Victoria, the two most populous Australian states.  As in the United States, Australia followed the M’Naghten rules until recently, when some jurisdictions began adopting other rules.  The Commonwealth Criminal Code Act (i.e. the primary federal criminal law in Australia) uses a wider definition, found in § 7.3:

(1) A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that:

(a) the person did not know the nature and quality of the conduct; or
(b) the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or
(c) the person was unable to control the conduct.

(8) In this section: mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.

As Williams & Waller explains, this is essentially the M’Naghten rules (subsections (1) and (2)) plus uncontrollable impulse and coverage of severe personality disorder (i.e. psychopathy).  This is notable because very few American jurisdictions recognize uncontrollable (or irresistible) impulse as a defense.

In Victoria the defense is called mental impairment rather than insanity, but still broadly follows the M’Naghten rules in its Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, § 20:

(1) The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence the person was suffering from a mental impairment that had the effect that —
(a) he or she did not know the nature and quality of the conduct; or
(b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).
(2) If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.

In Victoria, mental impairment covers neither personality disorder nor irresistible impulse.

Unlike the Commonwealth and Victoria, New South Wales still follows the common law M’Naghten rules directly rather than having an explicit statutory scheme.  However, “mental illness” is defined by statute:

‘mental illness’ means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms:
(a) delusions,
(b) hallucinations,
(c) serious disorder of thought form,
(d) a severe disturbance of mood,
(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)–(d).

The Mental Health (Forensic Provisions) Act 1990, § 38(1) provides that, if the person tried ‘did the act or made the omission charged, but was mentally ill at the time’, the jury should return a ‘special verdict’ — ‘that the accused person is not guilty by reason of mental illness’.  Given the statutory definition of mental illness above, this seems broader than the M’Naghten rules.

III. What Does This Mean for Supervillains?

The bottom line seems to be that supervillains branching out into the Australian market (so to speak) would do well to stick with federal crimes, as the Commonwealth Criminal Code’s definition of insanity is considerably broader than either Victoria’s or New South Wales’s.  The inclusion of irresistible impulse and severe personality disorder would potentially enable supervillains such as Two-Face, the Riddler, and even the Joker to claim insanity.  As we discussed previously, these supervillains would find it very difficult to plead insanity in most American jurisdictions (and, indeed, in most Australian jurisdictions).  For example, the Joker is not insane by virtually any American definition, but he is likely a psychopath (as I understand it), and thus could be insane under Australian federal law.

It is interesting to note that the Australian federal insanity defense is broader than the state equivalents.  Broadly speaking, the opposite is true in the United States, particularly as a result of the finding of attempted presidential assassin John Hinckley, Jr. not guilty by reason of insanity.  In response to the verdict, the US federal government passed the Insanity Defense Reform Act, which made it much more difficult to successfully plead insanity in federal court.  Several states also restricted the insanity defense, but in general state rules and procedure remain more lax than the federal ones.

IV. Conclusion

Overall I found Waller & Williams easy to use and fairly comprehensive.  As with any casebook I wouldn’t rely on it as a sole source for advising clients (admittedly not a very likely scenario to begin with when it comes to Australian criminal law), but it is a useful introduction to and outline of the subject.

5 Responses to Book Review: Waller and Williams Criminal Law

  1. I wonder if any DC or Marvel comics outside the U.S. have featured someone being inspired by an American character, only to discover that the laws are vastly different in their home country.

    • Im not sure if it applied in a legal sense but I recall a comic featuring a british batman and it toyed with the concept of villians copying american criminals. I believe the characters carried over into Batman INC so its possible legalities have come up.

  2. It is probably important to take this back a step and look more generally at the criminal jurisdictions within Australia. It is highly unlikely that a criminal will come under the natural federal jurisdiction, as many crimes are legislated against in the respective States’ criminal statutes and they apply even in federal territories, which generally take the criminal law from the nearest State. Crimes can reach the High Court through its appellate jurisdiction, but most commonly they will be dealt with in a State Court applying that State’s jurisdiction (where choice of law is not an issue), and therefore that state’s test will apply. If a conflicting High Court decision exists, then that will of course be taken into account as precedent (likely binding as it is a higher court). The Federal Court and Federal Circuit Courts do have limited original criminal jurisdictions (basically, fraud, copyright and immigration), but because of the way the Australian Constitution is set up (i.e. if it is not in the Constitution and the State hasn’t referred their power, the Federal Government can’t legislate for it, therefore the Federal Courts won’t have jurisdiction), most traditional comic book crimes will come under the States’ jurisdiction as they are not mentioned in the Constitution (basically, all crimes against the person, crimes against the property not involving a company and covered by corporation law, all common law torts, etc.). For example, while the Federal Government can and does legislate for workplace issues, occupational health and safety is dealt with on a State level, so an employer operating an unsafe work environment would be dealt with in the relevant State court. This means that if, say, Queen Industries had a manufacturing plant in Australia, they would have to meet Federal requirements for wages and working conditions and would therefore come under the jurisdiction of the Fair Work Commission and the Fair Work Ombudsman, but the plant would have to meet the WHS requirements of the State in which it was located, and any prosecutions would then be State-based. The Fair Work Ombudsman could bring a federal-level case, but in practice many cases are resolved before reaching the stage of prosecution, and what they do bring is limited mainly to such things as underpayments by a company, where there isn’t an enterprise agreement or other instrument that confers dispute resolution powers on the Fair Work Commission. These things are widely thought to be a significant part of the reason GMC, Mitsubishi and Ford have been closing their manufacturing plants in Australia, so it would be surprising if Oliver actually did open up a plant in Australia, unless he needed an excuse to come down under.
    tl;dr: Comic-book villain crimes are most likely to come under State jurisdiction because they don’t exist at a federal level, unless somehow they manage to defraud someone. Comic-book corporations better look out.

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