HSC Legal Studies - Crime

NATURE OF CRIME

NARURE OF CRIME

Crime

an act or omission against the community at large that is punishable by the state

Elements to a Crime

Actus Rea: guilty act

Mens Rea: guilty mind i.e.the intention, capacity, negligence

Strict liability offence

a crime where no mens rea needs to be proved e.g. traffic offences

Causation

proving that there is causal link between he actions of the accused and the result

Categories of a crime

offence against a person, offence against the sovereign, economic offence, drug offence, driving offence, public order offence, preliminary offence, regulatory offence

Summary offence

less serious offence heard in local court

Indictable offence

A more serious offence that is tried by a judge and jury

Parties to a crime

* Principal in the first degree: they did the crime

* Principal in the second degree: they helped

* Accessory before the fact: helped plan the crime

* Accessory after the fact: helped the principals after the crime

Factors affecting criminal behaviour

Social, Economic, Genetic, Political, Self-Interest

Crime prevention strategies

Situational: creating situations where it is difficult for people to break the criminal law e.g. CCTVs

Social: aims to reduce factors that are likely to cause a person to commit a crime e.g. drug prograns

CRIMINAL INVESTIGATION PROCESS

CRIMINAL INVESTIGATION PROCESS

Role of the police

investigate crime, make arrests if necessary, interrogate suspects and gather evidence against the accused

Police powers legislation

Law Enforcement (Power and Responsibilities) Act 2002 (NSW)

Types of police powers

search and seizure, access information, interrogate, DNA testing, detention

Why do crimes go unreported

victims may know the criminal, may involve the victim's own illegal acts, victim may feel humiliated, belief that reporting doesn't do anything

Investigating a crime: gathering evidence

All evidence must be obtained legally and in accordance with the Evidence Act 1995 (NSW). If not, it may be inadmissible at trial

Investigating a crime: use of technology

Technology used must be very reliable otherwise it might be inadmissible in court or someone may have a wrongful conviction. Under the Crimes (Forensic Procedures) Act 2000 - Section 5, police can take forensic samples with the person's consent

Investigating a crime: search and seizure

police have the power to search people and their belongings and premises and to take away property that is illegally held or is to be used in evidence

Investigating a crime: use of warrants

Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) sets out the circumstances in which a search warrant can be used. Police can enter without warrant in domestic violence situations

Summon

An official legal document that commands a person to appear at court to answer claims made against them

Arrest without warrant

Armed police must give a clear warning of their intent to use firearms, allow sufficient time for the warning to be heeded and only use firearms when it is 'strictly unavoidable in order to protect life'

Charge

At the end of detention, must either charge or release the accused.

Bail

Under the Bail Act 1978 (NSW) if bail is granted, the defendant is free to go but must attend court on a later date.

Remand

Remand is the term for what happens to the accused when bail is refused. They are kept in custody until court hearing

Detention

Police can detain a suspect for a period of 4hrs, by which time that person must be either charged or unconditionally released. Under the Anti-Terrorism Act (No.2) 2005 a person suspected of being about to engage in a terrorist activity can be detained in prison for 48hrs without charge

Interrogation

Police may question anyone they like, but all citizens have the right to remain silent. The right to silence may be used by people to protect them from having their words twisted by clever barristers, or to protect their friends and families

Rights of suspects

right to remain silent, rights regarding privacy, right to communication, right to a lawyer, using illegal evidence

CRIMINAL TRIAL PROCESS

CRIMINAL TRIAL PROCESS

Local court

Governed under the Local Courts Act 1982 (NSW). Main function: hears and decides summary offences and has committal proceedings to determine prima facie

Children's court

Has jurisdiction for care and control matters and criminal jurisdiction under 18yrs old. Focuses on rehabilitation of the offender and can't sentence offenders to an adult prison

Coroner's Court

Their aim is to determine if there is sufficient evidence to suggest a criminal act has occurred in a death and refer it to a higher court.

District Court

Governed under the District Court Act 1973 (NSW). they take appeals from the local court and hears indictable offences

Supreme Court

Established under the Charter of Justice (1823). They hear serious indictable offences

Drug Court

Governed under the Drug Court Act 1998 (NSW). Deals with cases involving non-violent drug related crimes. It aims to divert drug dependant offenders to rehabilitate

High Court

People can only appear to the high court if:

* it relates to a matter of public importance

* it is required in order for justice to be served

* it is required because of confusion between earlier rulings in various courts

Adversary System

In an adversarial system of trial the two sides of the case try to present and prove their version of the facts and disapprove the other side's version

Magistrate

Magistrates oversee cases, determines basis of evidence presented, determine guilt of the accused and pass appropriate sentences in the local court

Judge

Judges oversee proceedings, maintain order and ensure court procedures are followed in a district and supreme court

Police Prosecutor

A police prosecutor presents the case in court on behalf of the state

The Director of Public Prosecution

The DPP is an independent authority that prosecutes all serious offences on behalf of the NSW Government

Public Defendants

Appointed under the Public Defenders Act 1995 (NSW). They are legal practitioners (solicitors and barristers) appointed by the government to represent accused people in court

Plea

A plea is a formal statement of guilt or innocence by the accused

Charge Negotiation

A charge negotiation is an agreement between the DPP and the accused that involves the acceptance of a guilty plea, usually in exchange for something else

Legal Aid

Legal aid is the provision of free or cheap legal services to people on limited incomes created under the Legal Aid Commission Act 1979 (NSW)

Burden of Proof

innocent until proven guilty

Standard of Proof

the prosecution must prove the case beyond reasonable doubt

Rules of Evidence

hearsay evidence, opinion evidence, relevance, character evidence

Examination of Witnesses

Examination-in-chief: witnesses giving their evidence

Cross-examination: witness are asked questions from the opposing side

Re-examination: in order to clarify any issues arising out of cross-examination

Complete defences to a crime

mental illness, self defence, necessity, duress, consent

Partial defences to a murder

provocation, substantial impairment of responsibility

Role of juries

They are governed under the Jury Act 1977 (NSW) and they have the discretion to decide the guilt or innocence of the defendant

SENTENCING AND PUNSIHMENT

SENTENCING AND PUNISHMENT

Maximum penalty

the maximum punishment that can be imposed by the judge

Judicial guidelines

a judgement given about a sentence for a particular crime

Mandatory sentencing

sentences which a judicial officer is required to impose no matter what the circumstances of the offence

Purpose of punishment

Deterrence, retribution, rehabilitation, incapacitation

Aggravating factors

Factors taken into account by the magistrate or judge when determining the sentence. Put forward by the prosecution to persuade the judge of the severity of the crime

Mitigating factors

Matters that persuade the judge that the maximum penalty should not be imposed. Put forward by the defence to lessen the sentence

Victim impact statement

A victim impact statement is a statement read to the court, outlining the full effect of the crime on the victim

Appeal

Under the Crimes (Appeal and Review) Act 2001 (NSW) a person found guilty of an offence can appeal against the guilty conviction on certain grounds, or can appeal against the severity of the sentence

Types of penalties

no conviction, recorded, caution, fine, bond, suspended sentence, probation, criminal infringement notice, penalty units, community service order, home detention, periodic detention, forfeiture of assets, imprisonment, diversionary programs

Restorative justice programs

Targeted at young offenders that aim to address the causes of criminal behaviour and to allow the offender to rectify the harm they have caused

Circle sentencing

Targeted at aboriginal offenders that is designed to introduce meaningful and relevant sentencing options in the Aboriginal community

Protective custody

Protective custody is a type of imprisonment (or care) to protect a person from harm, either from outside sources or other prisoners

Preventative detention

the detention of people detained without charge because they are a suspected terrorist

Continued detention

the detention of serious offenders after their term of imprisonment

Sexual offenders registration

Serious sex offenders' names are placed on a registration with access by the police to monitor the offenders so that reoffending is minimised

Deportation

Deportation means the forcible removal of a person from a country and returning that person to their country of origin

YOUNG OFFENDERS

YOUNG OFFENDERS

Doli Incapax

No one under the age of 10 can be charged with a criminal offence because they are not old enough to form the necessary mens rea

Doli capax

Between 10-14, they are still presumed not capable of committing an offence, but prosecution may show the child knew what they were doing was seriously wrong

Issues of age of criminal responsibility

Doli incapax is old-fashioned, modern children have compulsory education and modern children are influenced by technology