Legal studies HSC course

Meaning of crime

The word crime is a broad term for many unlawful activities that result in harm to society at large and are punishable by the state.

actus reus

'guilty act' The physical act of committing a crime. Must be a voluntary action but may also include failure to act such as criminal negligence, and failure to fulfill duty of care.

mens rea

'guilty mind' The prosecutor must prove that the accused knew what was happening when they committed the crime. There are three main levels of mens rea, intention, recklessness, and negligence.

Homicide

murder- there was an intention to kill

manslaughter-involuntary, there was an intention to harm which resulted in death and voluntary, no intention to harm but act resulted in death

death by reckless driving- reckless driving resulting in death.

infanticide- death of infant caused by mother before 12 months of age.

Boughey V the queen 1986

Boughey strangled his wife during a 'sex game'. Charged with murder. Boughey had the capacity to know better. court citation stated 'reckless indifference to human life'

assault

physical harm or threatening to cause physical harm. Barton V Armstrong. Also sexual assault, unlawful sexual contact with another person without their consent.

Barton v Armstrong 1975

Armstrong threatened Barton and his family unless he approved the purchase of Armstrong's shares in a company they both were associated with. The threats were enough to launch civil law action to cancel the contract.

offences against the sovereign

Sedition- act of encouraging hatred or contempt of the monarch, government or constitution. R v Sharkey

Treason- breaching allegiance to your country in the form of causing harm to the monarch or working with your country's enemies to bring down government.

R v Sharkey 1949

Sharkey was the general secretary of the communist party of Australia. Stated that Australian workers should use force to ensure fascists did not stop communists from gaining power. Charged with attempting to incite overthrow of the government and found guilty of sedition.

economic offences

property- larceny or theft, break and enter, robbery

white collar- tax evasion, insider trading, computer crimes such as money laundering.

drug offences

importation, manufacture and cultivation, trafficking or distribution or supply, possession and use.

driving offences

road transport (safety and traffic management) act 1999 and the road transport (general) Act 1999. Strict liability offences.

public order offences

those that generally disturb the activities of society

preliminary offences

attempt- to commit a criminal act and conspiracy- two or more people agree to commit a criminal act

regulatory offences

delegated legislation such as water restrictions

summary and indictable offences

summary offences are less serious offences,brought on by a charge called a summons. Cases are heard by a magistrate without a jury present. Indictable offences are ones that society considers very serious such as assault or murder, brought on by a charge called an indictment. Initially a committal hearing will determine if there is enough evidence to bring the court to trial by judge and jury.

Principle in the first degree

'perpetrator' the person who physically carried out the crime.

principle in the second degree

the person/s present during the crime but are not the main participants. Usually treated and sentenced to the same extant as the perpetrator.

Accessory before the fact

helps others commit a crime such as planning, but is not present during the crime

Accessory after the fact

helps criminals after they have committed a crime but is neither present during the crime, nor aware of it beforehand. This offence is only recognised for serious crimes such as murder.

joint criminal enterprise

2 or more people conduct a criminal activity with a common purpose and both have equal liability even if some have a more active role than others.

factors affecting criminal behaviour

social and economic, genetic theories, political factors, self-interest and greed.

Situational crime prevention

'opportunity reduction' making it more difficult for criminals to commit a crime or less rewarding to perpetrate. The use of surveillance cameras, security guards, police patrols, alarms, alcohol free zones and steel shutters for example increase the risk of being caught and make it harder for criminals to commit a crime.

Social crime prevention

Recognises the impact of social and economical factors to the likelihood of individuals committing a crime and aims to give people access to society and an education to reduce these factors. Educational programs, youth off the streets.

R v Milat 1996

Milat murdered 7 hitch hikers. Came from a disadvantaged family with abusive father and playing with guns was normal. applies the differential association theory. Found guilt of murder after witness who got away from Milat spoke out and rope, knives, and guns where found as well as victims possessions.

R v Folbigg 2005

Infanticide of four children aged between 19 days and 19 months. Sentenced to 40 years reduced to 30 years in appeal.

theory of differential association

Persons exposed to an environment with little respect for the law their moral views will be warped to reflect this and they are more likely to participate in criminal activity.

Police powers

Arrest- s.21 law enforcement (powers and responsibilities) Act 2002 (NSW). Must have warrant or reasonable cause to arrest. Alternative to arrest such as cautions or warnings for less serious offences.

Issue infringement notices- Fines for traffic offences

Stop, Search and detain- reasonable grounds to suspect a person or vehicle is carrying an illicit article the police and stop and detain the person for the purpose of a search. After the search they must wither arrest or release the person.

reporting crime

Police rely on information from the public to help with the prevention or investigation of crimes. crime stoppers and neighborhood watch. Still many crimes go unreported for reason such as fear of revenge or suspicion of of the legal system.

investigating crime

gathering evidence- may be physical, electronical, or by witness statements. the police have significant resources at their disposal to search and seize and gather evidence.

Use of technology- surveillance cameras can give evidence such as time, date, and individuals. DNA testing to identify individuals crimes (forensic procedures) Act 200.

Search and seizure- police have the right to search an arrested person and their property, common law prohibits this before a person is arrested however some acts such as the 'motor accidents 1998 (NSW) allow for the search without arrest if there is reasonable grounds for the search.

Sniffer dogs

police powers (drug detection dogs) Act 2001 (NSW). Some argue that when a dog sniffs a person that constitutes a search itself. Used at large venues and events.

Arrest and charge

The police have no legal right to detain people unless they lawfully arrest them. Police can arrest if they believe the person has committed a crime or is about to commit a crime, they witness a person commit a crime, they have an arrest warrant. Once arrested the person can be charged with the particular offence(s) and receives notification of their first Court date. They are fingerprinted at this time. Police exercise their discretion, within guidelines, in determining which specific offence(s) the suspect will be charged with.

Summons

In the case of summary offences a summons or court attendance order may be issued rather than the person being arrested. It gives details of the charge, when and where the charge is to be heard and the consequences of failing to attend

Warrants

A warrant is an order issued by the court authorising a law enforcement agency to do something such as conduct a search. It doesn't mean the person is guilty but that there is a prima facie- at first instance evidence indicates that a crime has been committed. A subsequent trial will test the evidence more thoroughly.

Detention and Interrogation

Law enforcement (powers and responsibilities) act 2002 NSW. After arrested they may be detained for up to 4 hours or extended with a warrant. At the end the police must either release or charge, using their discretion, If charged than the issue of bail will be considered.

Rights of suspects

to be informed about the 4 hour or extended period, their right to contact a friend or family or other person, the right to silence and cautioned that everything you say can be used in court, to be informed as to why you were arrested, not take part of electronically recorded interview and if you do receive a copy after.

Bail

The conditional release of a person until their case is determined by the courts. Bail conditions typically include seizure of passport, restrictions on where they can go, reporting to a police station regularly, who they can associate with and provide a bond to the court in which a sum of money will be kept by the court is bail conditions are breached. If the police refuse bail than application of bail will be made to the court. Always obtained for summary offences.

Bail amendment Act 2007

Prevents people who have been charged from making more than one bail application. This has a particularly harsh effect on juvenile offenders and indigenous Australians.

Remand

Is a special type of detention, that allows for a person accused of a serious crime to be held for the period between being charged and facing trial. People held on remand are not convicted criminals ad it is therefore important that the amount of time on remand is as short as possible.

Drug court

drug court regulation Act 2005 (NSW) manage repeat offenders with addiction. Both local and district court jurisdiction

Local court

local court Act 2007. Civil jurisdiction for matters between $5,000-$60,000. Criminal jurisdiction over summary offences and committal hearings

District court

district court Act 1973. Civil jurisdiction for matter between $60,000-$750,000. A jury of 12 determines guilty or innocent. Criminal Jurisdiction for serious offences such as rape, or robbery

Supreme Court

Supreme court Act 1978. Hears serious indictable crimes such as murder. Civil jurisdiction over $750,000. Jury up to 12 but can be just a judge.

court of appeal

division of supreme court that hears appeals that can demonstrate good reason for appeal

chidlrens court

aim to rehabilitate not deter or punish. Childrens court Act 1987. Hears murder caes but trial is conducted in supreme court with the same personal.

Coroners court

investigates unexplained deaths. Coroners act 2009. Doesn't try people just give evidence

High court

constitutionally based matters. Before an appeal can reach the high court it must prove it:

relates to a matter of public importance

is required in order for justice to be served

is required because of confusion between earlier rulings of various courts

Adversary system

Hierarchy of courts so that they are more specialised. Appeals. The opportunity to test the opposing sides case. Strict rule of evidence are imposed, otherwise deemed inadmissible. Cross examination. strong sense of precedence.

stated case

an appeal based on the fact that a magistrate has made an error in law. Appeal can be made by the defence or prosecution

Magistrate

presides over local court appointed by chief magistrate (independent of government). In summary cases determine guilty ot innocent and sentence.

Judges

Must be impartial, ensure trial is conducted according to the rules of court, exclude inadmissible evidence, advising jury, passing sentence. appointed after successful barrister.

Prosecutors

represent state (society) before the court. Aim to prove guilt of the accused.

police prosecutor- Summary prosecutions and many committal hearings for indictable offences are handled by police

director of public prosecutions- lawyer appointed by parliament. DPP has a team of criminal lawyers (crown prosecutors) who are barristers. Required to help the court discovery the truth

defence lawyers

represent the accused

public defendants office- represent people who have been charged with a serious criminal offence and have been granted legal aid. Also play role in education for new lawyers.

legal aid

funded by government must pass means and merits test to ensure the person actually can not afford a lawyer, and the case must fall into defined areas of the law (jurisdiction test). legal aid commission established 1979.

pleas

the law requires an accused to make a plea in relation to the charges they are facing. Guilty or not guilty (which means they did not make a plea). The plea will determine the speed and cost of trial.

Charge negotiation

occurs three ways

- if facing numerous charges related to the same crime the prosecution may drop some charges if the accused pleads guilty to the rest of the charges

- judges may give and indication of the likely verdict and will prompt the defendant plead guilty

-the charge may reduced to lesser charge if the accused pleads guilty, Eg; murder to manslaughter.

burden and standard of proof

the prosecution must demonstrate guilt, the accused has no responsibility to prove innocence unless they wish to bring a defence. The standard of proof that the prosecution must produce to gain an conviction is very high. Must be convince beyond reasonable doubt other wise they are not guilty.

Use of evidence and witness

evidence- collection, presentation, interpretation are crucial in criminal trials. Evidence Act 1995 (NSW)

Witness- Crucial to both prosecution and defendants case. Give statements and verbal evidence which will be cross-examined, Lengthy trials are an issue for witnesses espcially if they forget details and what they say contradicts what they said previously.

Complete defences to criminal charges

Mental illness- 'insanity' no mens rea must be acquitted if found insane

Self defence- must not use greater force than necessary. Must admit actus reus and mens rea and so acquitted or guilty.

automatism- involuntary behaviour- tourettes

compulsion- necessity or duress

consent- victim freely consents to the act

partial defences to criminal charges

s 23 of crimes act 1960 allows two partial defences

provocation and substantial impairment of responsibility.

R V Porter 1933

Porter was depressed after divorce with wife and poisoned his son. The jury was informed what constituted insanity and Porter was acquitted.

US V Holmes 1842

Threw 8 people off a life boat arguing that doing so saved many peoples lives. Under necessity.

R V Byrne 1960

accused was sexual psychopath with violent sexual desires occasional outbursts lead to homicide. Charge moved to manslaughter due to diminished responsibility.

R V Graham 1982

accused was under the influence of alcohol and vallium and was involved in the murder of his ex-wife with his partner. The case lead to outlines of Duress.

Role of Juries

represent society, not involved in sentencing if found guilty. Until recently Juries in NSW were required to give unanimous verdict however the attorney general moved this to 11-1 verdicts.

Statutory and Judicial guidelines

statutory- crimes (sentencing procedures) Act 1999 sets out general guidelines for the courts to use in sentencing. Maximum penalties are decided by parliament.

Judiciary- reduce inconsistency in the judgement's of trial judges. Judges are given considerable discretion in sentencing within a range of possibilities. Like cases are treated alike. Precedence.

Mandatory sentencing

removal of Judicial discretion by setting a min or max mandatory sentence for a particular offence.

Purpose of punishment

Deterrance- Specific (aimed to deter an individual from re-offending) and general (showing society consequences of committing an offence - media).

retribution- punishment proportionate to the crime

rehabilitation- designed to reform the offender to prevent them re-offending.

incapacitation- restricting freedom of the offender to prevent them re-offending. Home detention, licence cancellation, imprisonment.

Factors affecting sentencing

aggravating- circumstances leading to harsher sentence. Crimes (sentencing procedures) Act 1999. Eg; victim was emergency worker, victim was child/vulnerable, Gratuitous violence.

mitigating- circumstances leading to lenient penalty. Crimes (sentencing procedures) Act 1999 set out mitigating factors such as remorse, pleaded guilty, offender assisted law enforcers.

Objective- circumstances of the crime eg; max and min penalties and community standards

Subjective- Factors personal to the offender Eg; Mental illness

Plead- whether pleaded guilty and hence showed remorse.

VIS's- used and weighted to discretion of judge

Victims role in sentencing

VIS is designed to give the victim a chance to be heard with respect to the impact of the crime on them. Victim Rights Act 1996 (NSW)

Appeals

the defendant can appeal against their sentence on the ground of error of law or if too severe. The prosecution may appeal on the basis that a sentence was "manifestly inadequate". Appeal against conviction (problem with prosecutions case) or appeal against sentence ( too lenient or severe)

Types of penalties

No conviction recorded- defendent has been found guilty and charged but no conviction has been recorded due to character such as first time offender.

Bond- good behaviour. May require drug and alcohol therapy. If the offender re-offends they will go to trial again.

Caution- formal warning without charge issued by police for minor crimes. Drug offences and young offenders Act 1997 (NSW)

Criminal infringement notices- on the spot fines fines awarded to 7 different crimes stealing less then $200 worth, unlawful entry onto boat or car, obstructing traffic, offensive language or behaviour, obtaining benefit by deception,

penalty units- 1 unit = $110.

Fine- is a monetary penalty set out as a penalty unit. Equality?

Forfeiture of assets- criminal wrong-doing leads to loss of rights of property

probation- defendant enters into bond and supervised by probation officer. Breach leads to imprisonment.

Community service order- cheaper and form of rehab. Instead of imprisonment. Repay society for crime.

Suspended sentence- less than 2 year sentence is suspended and convicted person is released on good behaviour bond for the same amount of time as original sentence. If breached original sentence is imposed.

Home detention- house arrest with strict supervision via electronic device attached to leg and random drug and alcohol testing. Home detention Act 1996. Still work and undergo educational program.

Periodic detention- no longer in use. Offender spends a period of time each week or month in prison and the rest at home.Instead Intensive correction order.

Intensive correction order- strict supervision up to 2 years. With rules such as strict curfews, 24/7 monitoring, travel restrictions etc.

imprisonment- last resort

Diversionary programs- therapeutic justice and rehab for offenders. Used to deter people from corrective services.

Alternatives to sentencing

circle sentencing- aboriginal offenders. Aims to impose trust and confidence in criminal justice system and reduce recidivism. Aboriginal community members are a part of sentencing

restorative justice- commonly used with juvenile offenders to divert them from courts, Voluntary conference between victim and offender.

post sentencing considerations

security classifications- AA (supermax) A1 & A2 (maximum security) B (medium security) C1 & C2 & C3 (minimum security) E1 and E2 are equal to A1 and A2 however prisoners held have attempted escape previosuly.

protective custody- those who feel they are in danger from other prisoners eg; child sex offenders, past officers, and mentally ill prisoners.

parole- conditional release after served min sentence full time imprisonment less than 3 years. Enter good behaviour bond

preventative detention- detention without charge. Kable V DPP. Post sentence- crimes (serious sex offenders) Act 2006 allows continued detention applied by attorney general if a real possibility of re-offending.

sexual offenders registration- child protection (offenders registration) min 8 years or 4 years for juvenile offenders. Registrar includes offenders who have committed murder, and guilty of sexual abuse of a child.

deportation- Migration Act 1958. Non-resident or less than 10 years resident automatically fail character test.

R V Slack 2004

Slack sexual assault charge was squashed after 16 yo VIS was read in court. It was unsworn and not cross examined and so to the judges discretion was not used.

Kable V DPP 1996

preventive detention of Kable after writing threatening letters to family of the victim. The law violated the separation of powers by requiring the court to detain people based on inadmissible evidence.

R V LMW 1999

doli-incapax. 10 yo killed 6 yo found not guilty due to lack of criminal intent as a result of age.

R V Hearne 1999

Hearne stabbed constable semple resulting in death. Sentenced to 27 years reduced to 18 years in an appeal. Crimes sentencing procedures Act 1999 aggravating circumstances.

Farrah Abdulkadir 2008/09

convicted of rape and sentenced to 6 years. Solicitor took n case pro-bono and in appeal found evidence to lack integrity. Acquitted in december 2009. Although VIC example can also happen in NSW.

R V Chamberlin 1980

sentenced to mandatory life sentence for murder of her daughter. New evidence arose was cleared of guilt recieved compensation.

R V CKT 1999

police interviewed suspect without guardian present any evidence collected in the interview was inadmissible

R V Warrol 2010

Warrol had hormonal condition and during an outburst stabbed her sister causing death. Sentenced to 6 years including 4 yrs 3 mnths non-parole later died in jail due to condition.

R V Rivkin 2003/04

found guilty of insider trading setenced to 9 mnths periodic detention. Appeal in 2004 on basis of bias from judge and admissibility of evidence, appeal was dismissed.

R V O'grady 2000

killed brown, turned himself in so showed remorse - mitigating circumstance. Sentenced 15 yrs 10 yrs non-parole.

Age of criminal responsibility

Children (criminal proceedings) Act 1987 (NSW) states that a child under 10 years of age can not form criminal intent (doli incapax). Between the age of 10 and 14 rebuttable presumption exists. Children reach the age of criminal responsibility at 14 but trials are still held in childrens court.

The rights of children when questions or arrested

a child must answer to police when:

situations regarding vehicles and traffic

they can assist law enforcers in investigation an indictable crime

there is reasonable belief a person is about to engage in criminal activity on public transport

S.19 of the Children (protection and parental responsibility Act 1997 when police wish to question a child an adult must be present. S.13 childrens (criminal proceedings) Act 1987 also common support may be available if no one else is available.

young offenders Act 1997

provide alternatives to court and fasten restorative justice and rehabilitation for child. Under the Act police may issue warnings or cautions or refer to youth justice conference.

childrens court

Est 1987. Designed to be less intimidating for the child single magistrate, no jury, closed court, also allowing the child to participate and making sure the child understands what is going on. Education and Employment should continue as normal.

Penalties for children

caution

youth justice conference

fines- up to $100 depending on childs ability to pay

community service order up to 100 hours <16 yo up to 200 hours >16 yo

control order suspended into good behaviour bond

control order to be served in juvenile justice centre up to 2 years sentence

probation

R V GDP 1991

14 yo caused $550,000 sentenced 12 mnths appeak found to be excessive. Aim should be rehab.

Types of international crime

Piracy- goes against just cogens (the norms of customary international law). The UN published the convention of law of the sea in 1982. Because it occurs outside the jurisdiction of any state the best form of sanction was to allow any sate affect bring pirates to justice.

War crimes- the Hagueand Geneva conventions refer to the lawful justification for waging war and the human treatment of wounded soilders, POW's, civilians respectively. The international criminal court also sees forced pregnancy and sexual assault as war crimes if they occur during armed combat.

Crimes against humanity- heinous offences. An attack on human dignity or grave humiliation of one or more people. Eg; extermination, enslavement, torture, deportation, elimination of a group based on religious, cultural,ethnic, national, race, gender or other discriminatory factors.

Peace crimes- increased international crime give rise to international responsibility.

Genocide- extermination of a group based on national, ethnic, gender, religious factors. Does not include cultural or political.

Terrorism- Terrorising the state to compel a state to do or not to do something.

transnational crimes

human trafficking, drug trafficking, arms trafficking, hacking, computer offences,