T1 Legal HSC

Crime

Act or omission committed against the community at large that is punishable by the state. (Omission: Failure to act)

Elements of crime

• Society’s culture, history, legal traditions, social attitudes, philosophical and religious beliefs determines whether or not something is a crime

Actus Reus

The criminal act that you have to prove the suspect committed

Mens rea

the intention or knowledge of wrongdoing that constitutes part of a crime

Strict Liability

Where you only have to prove the act (Actus Reus), without intention (Mens Rea) E.g Speeding

Causation

Definition: The principle that it is the link between the act and the harm. Prove the act itself is the substantial cause of the harm (Wallace v Kam) (2013) 

Types of Crimes 

• Offences against another person : Sexual assault, assault, homicide

• Offences against the sovereign : Treason/Terrorism  

• Economic offences : Robbery from property, 

• Public Order offences : Peeing in public 

• Driving offences : Driving 

• Drug offences : Drugs 

• Preliminary offences : Planning but not actually commit a crime

3 levels of Mens Rea

• Intentions - Clear, malicious or willful intention to commit crimes. Highlight and most difficult lead to prove.

• Recklessness - Intermediate level. The accused was aware their actions could lead to an act of crime but does anyways.

• Criminal Negligence - Accused fail to foresee the risk, allows avoidable danger to occur. Resulting in harm/death 

Barrister

The lawyer who represents the accused in court.

Role of the barrister

Provides legal opinions, prepares cases, presenting arguments and examining witnesses

Goal of the barrister 

The goal is the acquittal of the accused. If aqquitt al is not possible. Aim to mitigate circumstances to court for a more lenient sentence.

Influence of strict liability

• Lowers the amount of cases the court deals with. 

• Allow matters to be dealt with similarly without going to court

• Any appeals can be made regularly. It will be heard first in the local court by a magistrate

Summary offences

Summaries - Less severe offences heard and sentenced by a magistrate without a jury. E.g trespassing, disorderly conduct

• Judgement and punishment determined by a magistrate

• Charges usually laid by police officer/Government officer

• Punishment less severe (e.g fine, community service, behaviour bond.

Indictable offences

Indictable - More serious offences and punishment, heard by judge or jury E.g Muder, rape, arson

• Judgement determined by jury, punishment determined by the judge.

• Charge brought by a public prosecutor worthy for the state.

Parties to a crime

Principle in first degree - Person committing main criminal act

Principal in second degree - Person at scene, assisting or encouraging main offender

Accessory before the fact - person who plan/prepare for crime before main act

Accessory after the fact - Person who commits the principle after the crime has been committed.

Situational crime prevention

Situational: Aim to make it difficult to commit crime or remove reward of temptation in specific situations. E.g warning signs, improving alarm/security, colour tags.

Social Crime prevention 

Social: Aims to address the wider socio-economic factors that contribute to criminal activity. E.g Improving home environment, reducing social and economic disadvantage and running targeted youth programs.

Police Powers

• Police are responsible for enforcing the law by investigating crimes, gathering evidence, and detaining suspects. Their role in the criminal process is to build a case and present evidence to court for a trial.

Police Powers legislation outlining range of authority

NSW police powers found in Law enforcement (Powers and responsibility) Act 2002 (NSW) Main powers include

• Question and detain suspect

• Search and seizure

• Reasonable force if necessary

• Use of particular technology 

• Arrest and interrogate suspect

• Recommend when bail should be granted

reporting crime 

Police needs to be aware of a crime is or has been committed in order to investigate

Gathering Evidence and why

• Balance of severity, success likelihood and resources available  

• Search and seizure

• Evidence includes witness testimony, physical objects, videos, documents, and forensic data like DNA and fingerprints.

Admissibility is key: Evidence must be uncompromised to avoid being ruled inadmissible in court.

Use of technology

• While technology promotes automation and efficiency,  over-reliance on any single type (e.g., DNA) can sometimes lead to wrongful convictions.

Search and Seizure

Search Powers: In NSW, police can stop and search a person without a warrant if they have reasonable grounds for suspicion.

Warrant

Legal document issued by a judge/magistrate authorizing police to use a special power (e.g., search premises, conduct a wiretap).

Arrest Without Warrant

•  Police can legally arrest someone without a warrant with conditions:

  • Person committing an offence.

  • Reasonable grounds a person is about to commit an offence.

  • Reasonable grounds that a person has committed an indictable offence.

Legal Arrest Procedure

For a lawful arrest police must inform the person they are under arrest and state the reason. Allowed to use reasonable force if necessary

Detention Limit:

In NSW, for investigation and interrogation. police can only detain a person for a maximum of 4 hours (without charging or releasing them)

Detention Outcome:

•  Before the detention period ends, police must either:

  • Release the suspect unconditionally.

  • Charge them with an offence.

After Charging:

 If charged and held in custody, the accused must be brought before a court.

Bail

Temporary release of an accused awaiting trial, sometimes conditions such as a lodgement of money as a garauntee

A bail hearing,

• court or authorised officer determines whether the accused should be released on bail or remand in custody before trial 

• If bail is granted, accused can be released under conditions such as monitoring, curfew or money lodgement 

Remand

Accused is held in custody awaiting trial

Court Jurisdiction

Original : Hear the case for the first time
Appellate : Review a case appeal from a lower court

Adversarial System

Used in Australian courts as it reduces potential for a biased judge.

Two opposing parties present their argument and evidence before an impartial judge, judge acts as a referee.

Magistrate and judge

Magistrate - Determines guilt and sentencing for lower courts (Local)

Judge - Presides over intermediate and superior courts

Police and public prosecutor

Police - Trained to prosecute summary offences (e.g speeding)

Public - Prosecutor on the behalf of the state for indictable offences

Public defender and prosecution

Public defender - Barrister/solicitor represents the defendant

Prosecution - Presents their case and evidence in order to proof the defendant guilty.

Plea

Formal statement made by defendant stating whether or not they are guilty/not before a trial starts

Charge negotiation

When a prosecutor offers a defendant a lower charge in exchange for a guilty plea. Resource efficient as it skips trial and ensure conviction, though it does not necessarily achieve justice

Legal representation and aid

There is no express rights to legal representation in australia

Legal and aid may assist in legal representation but they test before

• Means

• Merit (Whether case will succeed)

• Jurisdiction (Cannot represent a defamation case

Burden of Proof

Who must prove something before the courts. prosecutor is burdened to prove if the defendant is guilty. Innocent until proven guilty proven guilty (ICCPR)

Standard of proof

Guilt must be proved beyond reasonable doubt for a criminal conviction.

Type of evidence and its legislation

Evidence Act 1995 (NSW)

Real evidence : Weapon, DNA, fingerprint , photograph

Documentary evidence: Letters, emails, contracts

Witness testimony: Eye witness recount on observation or expert witness with profession e.g psychologist.

Complete defence

If complete is successful, will result in an aqquital (innocent)

• Automatism R v Cogdon (1950) killed daughter while sleeping

• Self-defence

• Diress R v Abusafaiha (1991) Robbery where man claimed his family was held under gun threat

• Insanity (Martin Bryant v Q) (1996)

• Consent (e.g surgery, tattoo, contact sport)

• Mistake

• Necessity R v Dudley and Stevens (1884)  lifeboat case

Partial defence

In order to gain a reduced sentence

• Extreme provocation (R V camplin) 1978 SA then teased

• Excessive self defence (Unreasonable)

• Mental health (only for extreme cases)

Juries

Juries: Societies involvement in justice, 12 randomly selected adults. Cannot have criminal convictions. Cannot be lawyers and police

Can only assess what evidence is given in court e.g witnesses, documents and real evidence.

Community representation

Jurors are randomly selected, reflecting a cross‑section of society.

Fairness and impartiality

 Decisions are made collectively, reducing reliance on a single judge.

Democratic participation

involves citizen Iens directly in justice, keeping law aligned with community standards

Checks on power:

Prevents concentration of authority in judges, promoting accountability.

Complexity: Legal issues can be difficult for laypeople to fully understand.

Cost and time: Jury trials are more expensive and take longer than judge‑only trials.

Inconsistency: Different juries may reach different verdicts in similar cases

1. Legal issues can be difficult for laypeople to fully understand.

2. Jury trials are more expensive and take longer than judge‑only trials.

3. Different juries may reach different verdicts in similar cases

Majority verdict

A jury reaches a decision that is not unanimous but agreed upon by most jurors (for example, 11 out of 12, or 10 out of 12 in NSW). It is used when unanimity cannot be achieved after extended deliberation, allowing the trial to conclude without a hung jury.

Sentence hearing

 Hearing following finding of guilt in which magistrate/judge determines the sentence 

Maximum penalty

 Set by parliament, maximum sentence available for offence, rarely handed down 

Judicial discretion:

 power of a judge/magistrate to make a decision with a range of possibilities based on care circumstances.

Guideline judgment

Issued judgement from the court, Attorney general that sets out guidelines for particular offences.

Mandatory sentencing:

 Removal of judicial discretion by legislation. Setting min/max for particular offence/offender

Non parole period:

 prison period which parole cannot be granted

Deterrence

Discourage offender from re-offending, also deters others 

Retribution

Aims to see victim sees justice has been achieved 

Rehabilitation

Change behaviour of offender to prevent recidivism (Criminal reoffending)

Incapacitation

removes from society to prevent harm

LOVERIDGE 2014 

• Deterrence (Specific) Harsh punishment discourages override. (General) Media coverage, discourages others

• Retribution Increased sentence on appeal shows justice 

• Rehabilitation - initial sentence was shorter and in rehab 

• Incapacitation - Decade in prison 

Sentencing : Punishment given to offenders in criminal cases

• Mitigating - reduce severity of sentence showing remorse, suffering guilty 

• Aggravating - Increase severity, prior conviction, targeting vulnerable individual, weapons

Victim Impact statement (VIS)

Allows victims of serious offences to give the court a written or oral statement after an offender is found guilty. This is taken in consideration when determining appropriate sentence.

• Victims Rights act 1996 (Nsw) procedure for a VIS is found in section 3 of the crimes (sentencingprocedures) Act 1999 (Nsw)

What legislation replace Victims rights act 1996

This legislation is replaced by victims right and support ACT (2013) NSW

Landmark case of R v Previta (1997) (NSWSC)

Ruled that although families, of a deceased victim submitting a VIS it will not affect sentencing, Chief David Hunt "Inappropriate to impose harsher sentence be value of life is greater”

R v Dang (1999)

Justice Michael Adams: In death we are all equal”

• Grievance from family should be equal to someone alone.

Catalyst for law change is R v Loveridge (2013)

 a VIS submitted from a FM, resulting in introducing of crimes (Sentencing Procedure) Amendment (Family member impact statement) Act 2014 (NSW) Part of argument against all victims being equal was that mandatory sentence for death of a police officer 

Professional opinion - Tracey Booth UTS (VIS)

2014 Conservation article (VIS Swing Homicide penalities?) that "Doesn't intent to reflect value of life but to reflect circumstances of offence)

Positives and Negatives of VIS

Positive : Allows victim to express themselves, shows the impact and the right to be represented.

Negative: Can be subjective yet highly impact the sentencing of the case, moves far way of objectiveness.

Appeal

Types of penalties

• Penalty Units: A monetary unit used to calculate fines.

• Community Service Order: Offender completes unpaid community work.

• Home Detention: Imprisonment served at home under monitoring.

• Periodic Detention: Offender spends part‑time (e.g., weekends) in prison.

• Forfeiture of Assets: Criminally obtained property is seized.

• Imprisonment: Offender is removed from the community and confined.

• Diversionary Programs: Rehabilitation‑focused alternatives to court.

Circle sentencing:

Involvement of community and offender in a circle discussing their sins and reaching a dispute. 

•  Alternative sentencing for Adult Indigenous Australians. Based on customary laws and more traditional forms of dispute resolution.

• Aim to reduce recidivism rates

• Incorporating elements of aboriginal customary law 

Restorative justice

Voluntary conference between offender and victim giving opportunities for apologies and amendments to the act

• Effective for right of victim and youth justice programs 

• Aims for offender to take responsibility through direct interaction

• Allows victim to experience guilt and remorse from the offender 

• Reduce sentencing or avoid detention
  

While traditional methods take a more informal principle followed approach in sentencing, the adversarial system is based off legal statutes.

Security Classification

Crimes (Administration of sentences) Act 1999 (NSW) Max, medium and minimum classification of security from serious to minor offences

Protective Custody

George Pell Child sex offence (2019)

Offenders vulnerable to attack from other prisoners duty of care in prison. 

Parole: Parole Reforms 2017

Conditional release of prisoner after completion of minimum term of sentence “No body no parole” parole under supervision 

Preventative Detention 

Imprisonment. Detained without committal or guilty of an offence. Kable v Director of Public Prosecution (1996) 189 CLR controversial and harsh, 

Continued detention 

Served full sentence continued to be detained, Serious offenders crimes (High risk offenders Amendment act 2017 (NSW)

Sex offenders registration

Child protection (Offenders registration) Act 2000 (NSW) placed under (ANCOR) minimum 8 years. 

Deportation

Forcible removal from australia section 200/201 section 206 migration act 1958 CTH

Relevant Laws for age of Criminal responsibility

• Children (Criminal Proceedings) Act 1987 NSW

• Children's court Act 1987 NSW

• Summary offences act 1988 NSW

• UN commission on the rights of child 1989

• Young offenders act 1997 NSW

• Crimes (Sentencing procedure) Act 1999 NSW

• LEPRA act 2002 NSW

• Bail Act 2013 NSW

Cause for young offenders

• Poor parent supervision 

• Drug/Alcohol abuse 

• Neglect and abuse

• Homelessness

• Negative peer association 

• Lower socioeconomic status

Welfare model

• Assumes cause of crime can relate to social, psychological, state of the economy

• Under welfare model, there is need to protect children and youth from causes of crime

• Assist in rehab if offence is committed

Justice model

• Tough on crim stance

• Promotes zero tolerance opposed offenders of any ages

• Emphasises punishment and deterrence over rehabilitation 

Types of Young offender crime

• Homicide, extortion, acts intended to cause injury, SA, abduction/harassment, robbing

How does the law treat young

Law treats children and young people differently from adults 

• Protecting them from consequences of making uniformed decisions 

• Remember: Children and young people does not have the full mens reas

Children Under 10 Years Legal frameworks

• Children (Criminal Proceedings) Act 1987 (NSW)

• Section 5: No child under 10 can be guilty of an offence.

Doli Incapax

• A conclusive presumption that children under 10 cannot form criminal intent.

• Conclusive = cannot be challenged in court.

• Result: Automatic acquittal for any alleged offence.

Reasons for Doli Incapax

• Limited life experience and moral understanding

• Criminal penalties for very young children are considered cruel

• Early punishment (e.g., juvenile detention) undermines rehabilitation

Focus is on support, not punishment

Corey Davis (1999):  

A 10‑year‑old drowned a 6‑year‑old. The court found he could not understand criminal intent → acquitted under doli incapax.

Challenges - Proving mens rea beyond reasonable doubt is difficult especially involving children.

Young People Aged 10–13

• Doli incapax still applies, but is rebuttable.

• Prosecution must prove the child understood their actions were seriously wrong, not just naughty.

Criminal Responsibility 14

• Once a person turns 14, the presumption of doli incapax no longer applies.

• They can be held criminally responsible, but the law still recognises reduced maturity.

Protections

• Matters heard in the Children’s Court (closed court; identity protected).

• Young people under 16 cannot receive a criminal conviction unless the offence is indictable

Ages of criminal intent

• Under 10: No criminal responsibility (conclusive doli incapax).

• 10–13: Limited responsibility (rebuttable doli incapax).

• 14–17: Criminally responsible, but with youth‑specific protections.

Young people under age of 16 cannot have criminal conviction record against them unless its an indictable offence

Police Powers

Many police powers apply to young people as they do for adult

However, law recognises certain circumstances where children must be granted greater protection in dealing with police. 

Police powers on youth:

• Police can stop and require detail of person under 18 suspected of carrying.consuming alcohol without reasonable excuse

• If police question a child or young person there must be a responsible adult present, otherwise any information may be inadmissible in court.

• Children, like adults, have the right to be silenced when being questioned by police

There are special requirements to police strip searches and young people. 

Arrest and interrogation 

• Conditions under which people can arrest a young person are the same for adults, including requirements to tell a person they are under arrest and why.

• Police must find details of young persons parent/guardian as soon as possible and contact them

• Children.youth must have a support person present during police interview 

• Police must caution of rights in presence of a support person

• Police must inform suspect of right to contact legal aid

Children's court is specialised court established under 

• Childrens court act 1987 (NSW) Dual role

• Dealing with matters of care and protection children and young people referred to as the department of family and community services.

• Where possible, education of a child should proceed without interruption

• Where possible a child should be able to reside in their home