crime flash cards

Strip searches - legislation/defintion

• LEPRA (Law enforcement Powers & Responsibilities) Act 2002

• “A search of a person or articles involving the removal of clothing” s31 - definition for a strip searches

strip searches - Key protections for the individuals being searched

• s 33(4) “Strip searches can’t involve a person's body cavities”

strip searches - measure of effectiveness

• SBS News 2018 “Strip searches in 2018 removed 1 gun, 93 knives and 1553 drugs”

strip searches statistics

• NSW Police 2018/19 Data, found that strip searches had created over 1500 charges for drug related offences

strip searches case study

• NSW v Attalla (2018) → Attalla was strip searched on the bases that reasonable suspicion was present because he was in Kingscross at it was early in the morning (2am), he was strip searched illegally and sued NSW Government and got 112k in damages.

1. His rights were violated

2. Waste of public money/tax payer money in sense they are the people paying out the 112k due to a police officer not following the rules.

strip searcehs - Greens MP David Shoebridge released data about use strip searches

1. Usage of strip search had increased by 47% from 2015-2020

2. 1,748 increase up to 5,483 YEARLY strip searches

3. Police strip search quotas → “Granted recipe for the violation of human rights” Greens MP

DNA evidence - legislation/definion

• Legislation - Crimes (Forensic Procedures) Act 2000 (NSW)

1. S 88 - Samples have to be destroyed after 12months if they haven’t been used

2. S 75(r) - governs the situations when intimate and non-intimate DNA collection may be used. 

dna evidence case

•  R v Xie (2017) → DNA found 8 years after the crime, police had decided to reinvestigate the case, they searched the accused house and found DNA evidence of all 5 victims in one drop of blood on the carpet that the accused had failed to clean up. They tied this to the accused and he was arrested for murder. 

1. Links back to Art 9 of ICCPR → As the police successfully locked up a dangerous criminal

dna evidence - case study negitive

•  R v Jama (2008) → DNA was contaminated, which resulted in Jama being wrongfully convicted for 18 months

dna evidence jurors

• Jurors trust DNA too much → 2011 Article - The Conversation’s CSI Effect

1. “Jurors starstruck by DNA evidence” → The issue is that due to the myths about DNA that have been created by media outlets jurors trust DNA too much and thus meaning that they are more likely to convict the accused if there is DNA evidence. 

2. ICCPR Art 14 - Right to a fair trial is violated

bail - legislation/definiton

• Legislation - Bail Act 2013 (NSW)

1. This introduced the unacceptable risk test - Div 2 Bail Act → Where someone poses a risk to any of the 4 main bail concerns: 

• (a) fail to appear at any proceedings for the offence, or

• (b) commit a serious offence, or

• (c) endanger the safety of victims, individuals or the community, or

• (d) interfere with witnesses or evidence. 

bail example

Example of this = Brett Button (10x dangerous driving occasioning death) he was driving a wedding bus and was drunk when doing so. He pleaded guilty, and was granted conditional bail sacrificing his license. Proving that even serious offenders when they don’t breach bail concerns are afforded the presumption of innocence.

bail quote Greens MP Davide Shoebridge (2013)

1. “This could well be one of those rare occasions where the law and order debate in NSW has been hijacked by principal”

Bail ICCPR

• ICCPR Art 9 - “Freedom from arbitrary detention and fair trail”

• ICCPR Ar 14(2) “Right to presumption of innocence”

• Bail Amendment Act 2014 (NSW)  negivite

1. S 16B → show cause requirements which violates the ICCPR Art 14(2) “Right to presumption of innocence”

2. Described by the NSWLRC 2015 as “Frequently anomalous and unjust”

• Bail Amendment Act 2015 (NSW) negtive

1. S 22(A) → “Exceptional Circumstances" in terrism cases > Irrelevant law

bail statistic negitive

BOCSAR 2018 found refusal rates increase 8.5% for high risk defendants.

self defence defintion/legislation

• Definition → According to Section 418 of the Crimes Act 1900 (NSW) as interpreted by R v Katarzynski, Self-defense requires proof of a subjective belief of conduct being necessary for any of the reasons in Section 418 in addition to the response to the belief being objectively reasonable. 

1. Subjective belief that the conduct is necessary to defend yourself or prevent a removal of your liberty

2. Conduct done in response to belief is objectively reasonable (by the average/reasonable person)

self defence source of law

Section 418 of the Crimes Act 1900 (NSW) + R v Katarzynski 

sefl defence case study

•  Silva v R (2016) NSWCCA → Silva was in an abusive relationship, which resulted in her killing her partner. She was able to rely on self defense and all convictions were cleared from her name. This upholds societies morals and ethics around self-defence. 

self defence - excessive self defence meaning

s421 of the Crimes Act 1900 Establishes excessive self defence where an accused holds a subjective belief their conduct is necessary to defend themselves but the conduct isn’t objectively reasonable.

excessive self defence meaning

R v Davis (2021) - samurai sword case, accused chased robber down street and killed with sword, excessive self defence because not reasonable.

excesive self defence case

• R v Davis (2021) - samurai sword case, accused chased robber down street and killed with sword, excessive self defence because not reasonable.

negitve case study self defence

• Burgess v R (2005) → Creates a requirement for an offence-threat nexus (Meaning - the threat and act of self-defence have to be close together) 

1. Homicide Law reform in Australia 2013 “Requirement for immediacy, makes it difficult to argue a fear of death” “And this is because an abused person may wait lull in the violence before responding”

Self Defence - VIC v NSW negitve

• Crimes Act 1958 (VIC) s9sAH → The removed the requirement for mediacy, pos for Vic but NSW isn’t 

provcation meaning

• Definition → s23 Crimes Act 1900 (NSW) Creates a partial defence for those who murder due to a loss of control

provcation case study

• In response to R v Singh (2012) [Wife cheated on him and was filing for divorce and Singh was scared for visa and killed his wife] → the crimes amendment (Provocation) Bill 2014 was a change inspired by this case and in introduced s23(2)[b], which requires provoking conduct to be a serious indictable offence

1.  

provcation artcle

• Article ABC Reforms to Homicide laws "Domestic violence perpetrators were using accusations of infidelity to justify murder” → Shows how DV preparators were basically making up accusations of infidelity to justify their actions, however they no longer just have to prove infidelity they also have to prove a serious indictable offence.  

provcation artcle 14

• You have a right under Article 14(3)(d) to present a defence → Instead of scrapping the idea of defence of provocation they simply made change and/or reform making it harder to use it as a defence. 

provcation negivite case study

Article SMH Changing provocation law could legitimize lethal acts of domestic violence (2013) states that the defence “presents significant barriers” for “who kill in response to prolonged family violence"

Provcation quote

• Kates Fitzgibbon Law Professor 2013 stated that the provocation defence is

1. “Unlikey to protect the very category of defendant for the very category of defendant of whom the committee recommended retaining it”

mental health defintion

Definition - S14 Mental Health and Cognitive impairment and forensic provisions Act 2020 (NSW) → Establishes a diversionary program for summary offences in the local court, on the basis of having a mental health or cognitive impairment. 

mental health stastic

• Statistic - Royal College of Psychiatrist (2019) found that this reduced the recidivism of MH/CI affected-offenders by 12%

mental health negitive statistic

• Statistic - Guardian More than 1,200 people detained indefinitely in Australia with no criminal conviction (2022)

1. Over 1200 MH offenders in indefinite detention as a result of the MI defence or unfitness to stand trial. 

inprsionment defintion

• Definition - Imprisonment is the deprivation of liberty

• Relevant purposes of punishment → under section 3a Crimes (sentencing procedure) Act 1999 (NSW)

inprsionment 2 elments

1. Incapacitation → stopping people from committing crimes

• Example: Minister for home affairs v Benbrika 2021, CDO (Continued detention order) made under terrorism (High risk offenders) Act 2017 (Cth.)

2. Retribution  → morally denouncing the conduct. 

• Example: R v Milat (2014) results in a sentence of 43 years, is a deterrence and denunciation to both the offender and the wider society. 

inprisonment quote

 The CDO above ensured that Abdu Nacer Benbrika, the ‘Godfather of Islamic terrorism’ (ABC Convicted terrorist to stay in jail on continuing detention order 2021) remained incapacitated. 

inprsionment negitive statistic

BOCSAR 2021 Reoffending Database (ROD) found that 43.2% of offenders released from custody reoffend within 1 year.

intensive correction order defintion

• Definition - s7 of the CSPA allows offenders with a a sentence of less than <2yrs (s68) to serve their sentence as ‘intensive correction in the community’

Intensive correction order statistic

• BOCSAR (2017) report found that those issued an ICO are 39% less likely to reoffend after the conclusion of their sentence.

intenstive correction order negitive statistic

• ICOs’ introduction increased the number of appeals by the state against sentences by 14% (R v Kennedy 2021)

intensive correction order limitation

• S67 of the CSPA forbids ICOs for manslaughter 

1. R v Eckersley 2021 ‘almost unique its ability’ to lead to the ‘greatest variety of circumstances affecting culpability’

2. Selection of either a CCO or imprisonment

drug court defintion

• Definition → Drug Court Act (1998) NSW, objectives of the act include reducing drug dependence and rehabilitating offenders. Offenders are referred from the local court, given a provisional sentence then they are accessed by the drug court and provided an individualized plan to help them overcome their drug dependence. Failure to comply with the plan can result in the provisional sentence entering into force. 

1. Under s9 of the Drug Court Act → allows the drug court to use services and conditions

2. Condition = court imposes on you that you must do e.g. regular drug test, curfew, going to AA

3. Services = the services they provide to help you e.g. opioid substitutions

drug court statistic

Statistics → BOCSAR (2021) found Drug Court-treated offenders were 17% less likely to reoffend.

drug court limitation

• Document → Drug court website, states that there are only 4 drug courts in operation, with a total maximum capacity of 360 offenders at any given time.

• Due to accessibility/resourcing issues, participants must be screened through the eligibility criteria within s5A(1)(f) (LGAs).

describing drug court negitive

Computerised ballot described by A Current Af article: Drug Court (2016) as a ‘lucky dip draw’

youth justice confernce defintion

Definition → Young offenders Act (1997). Conference involving offender there support people (family, friends etc) convener and victim which aims to give closer to the victims and dissuade offenders from reoffending or recidivism.

youth justice conference stat

• Statistics → BOCSAR (2020) found 94% of offenders comply with their action plan.

youth justice conference negitve quote

• QLD AG Jarrod Bleijie stated that Australians didn’t agree with the offender having “ the opportunity to sit in with the victim and try to sort it all out”

youth justice confernece negitive statistic

• BOCSAR (2012) found that 64% of YJC participants reoffend within 24 months.

minum age of responsiblity defintion

• Definition → Children's Criminal Proceedings Act 1987 NSW (s5) establishes a MACR of 10. 

• Convention on the rights of the child article 40(3)(A). 

minum age of responsbility case

• Case → R v LMW: 10 yr old absolved due to doli incapax, as his actions were intended as a prank. Illustrating how the common law of doli incapax works. 

minum age of responsiblity legislation

• Legislation → Convention on the Rights of the Child Article 37B (imprisonment as a last resort). 2 layers of protection are present: 

1. Under 10 → doli incapax is not rebuttable

2. Under 14 → rebuttal presumption is present

minmum age of responsibiliy quote 1 negitive

• Quote → Kathrin Elliot found (2018) “antisocial or criminal behaviour to maintain peer relations” (peer pressure, inability to comprehend future consequences)

minmum age of responsibiliy quote 2 negitive

• Quote → The Maturation of the adolescent brain (2013) report found the profound cortex (critical thinking, decisions) doesn't fully develop until 25. 

bail law young offenders definition

• Definition → Bail Act 2013 (NSW). Division 2 of the Bail Act 2013 (NSW) explains the unacceptable risk test. 

1. Unacceptable risk test to bail concerns

2. S16(A)(3) - YOs exempt from show cause

3. S18(1)(k) - ‘Youth’ a ‘special vulnerability’

4. URT upholds Art. 37B of The UN Convention on the Rights of the Child (1989)

bail law young offenders positive case

• Case → R v DS (2017), bail application granted and DS exempted from show cause.

bail law young offenders negitive artcle

• Article → Conversation (2016) NSW. Bail laws mean well but land homeless kids in prison. “Prsion; remand is a university of crime”. 

1. “Prison facture community and family ties, may harden and brutalises inmates”

bail law young offenders recidvism stat negitive

• Contemporary Comments; the limited benefit of prison in controlling crime (2018) 

1. Any time spent in prison increases the likelihood of recidivism by 32%

circle sentancing defintion

• Definition → Criminal procedure regulation 2017 NSW pt.7. 

circle sentancing stat

• Statistic → BOCSAR “Criminal sentencing, incarceration and recidivism” (2020) found that those undergoing CS were: 

1. 9.3% Less likely to receive prison sentence

2. Are 3.9% less likely to reoffend within 12 month  

cricle sentancing neg stat

Statistics → BOCSAR “Criminal sentencing, incarceration and recidivism” (2020), states that CS is only available in 12 local courts.

circle sentancing neg quote

• Quote → According to Creative spirits (2020), only 75 cases are heard per year.

parole defintion

• Definition → Crimes (Administrations of sentences) Act 1999 NSW

parole statistic

• Statistic → BOCSAR (2014) found that 60.8% of parolees successfully completed their parole, with only 7% of offenders committed a violent offence.  

parole negitve case

• Case → Parole poses a risk to public safety. Jill Meagher case: Prison got let out on parole, who was also on bail for assaulting someone upon release for parole. Jill killed someone. ABC commented on the case stating “It was easily preventable” (2016)

parole negitive case 2

• R v McCullough (1997) multiple murders by a parolee

extradition meaning

• Definition → Extradition refers to the legal surrender of a suspect to face trial in the country in which a criminal act was committed. Occurs under: 

1. Extradition Act 1988 (Cth)

2. Bilateral treaties

3. Multilateral treated (e.g Rome Statue (1998))

scope of extradition

• Scope of Extradition: 

1. Australia has extradition treaties with 39 nations

2. Example: treaty on extradition between australia and that czech republic (2023)

• Extradition Act 1988 (cth) s22 prevents extradition in the event event of: 

1. Trails involving "political offences” (sham trails)

2. Upholds ICCPR Art. 9 & 14

extradition barrier

• Sovereignty Barrier: Australia refused an extradition treaty with China because of

1. “Doubt about an individual’s access to a fair trail” (JSCOT 2017)