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.