crime

the meaning of crime

any act that lawmakers in a particular society have deemed to be criminal causing injustice or violating the rights of a community

the nature of crime

influenced by history, legal traditions, social attitudes, religious beliefs and political systems

constantly changing and evolving, can be frustrating for the legal system

moral and ethical judgements by society, can differ in other societies

police

representatives of the state when it comes to crime, and protect the people of NSW

implications of changing crime

usually have effects on the rights and freedoms of individuals. there are often tensions between the rights of the community and individuals in the justice system, and ensuring this balance is vital

point of criminal law

protecting society, the state taking legal action against an accused

features of criminal law

crown must prove a case beyond reasonable doubt, DPP prosecutes the accused

what does dpp stand for

Director of Public Prosecutions

two fundamental elements applicable to criminal cases

actus reus, mens rea

actus reus translation

‘guilty act’

mens rea translation

‘guilty mind’

actus reus

the prosecution must prove that the accused carried out the relevent act required for crime by physical evidence or witness testimony.

mens rea

must be proven that the accused intended to commit the crime to a necessary degree, and must have understood what was happening when a crime was committed

three levels of mens rea

intention, recklessness and criminal negligence

intention

a clear malicious or wilful intention to commit the crime

recklessness

accused was aware that their action could result in a crime being committed, but chose to take the risk

criminal negligence

fails to forsee the risk where they should have and so allows the avoidable danger to occur

strict liability offences

only actus reus needs to be shown, generally restricted to minor offences and level of proof is only that the actual act took place

example of a strict liability offence

speeding, most traffic offences

reasoning for strict liability offences

proving mens rea can be too much effort, resource inefficient and time conssuming for these cases

causation

proving that there is a sufficient casual link between the actions of the accused and result, whether or not the actions taken by someome actively resulted in crime

categories of crime

offences against the person, offences against the sovereign, economic offences, drug offences, driving offences, public order offences, preliminary offences and regulatory offences

homicide

includes murder, manslaughter, infanticide and dangerous driving causing death

types of manslaughter

voluntary manslaughter, involuntary manslaughter, constructive manslaughter

voluntary manslaughter

a person kills with intent but mitigating factors reduce their culpability, such as being provoked to commit an act

involuntary manslaughter

where death occured because the accused acted in a negligent way but without intent to kill

constructive manslaughter

killing of a person while the accused is carrying out another unlawful act

infanticide

category of manslaughter applying to the death of a baby under the age of 23 months at the hands of its mother, post natal depression acts as a mitigating circumstance

sexual assault

where someone is forced into sexual intercourse against their will and without their consent

aggravated assault

where violence is used, the victim is under 16 years old or has a serious disability

indecent assault

accused commits a sexual act in the presense of another person

aggravated sexual assault in company

elements of sexual assault but is performed with another person or a group of people together

types of offences against the sovereign

treason and sedition

categories of economic offences

crimes against property, white collar crime and computer offences

crimes against property

larceny, robbery, break and enter

larceny

theft or stealing, taking of ones property without consent and intention of returning it, like shoplifting

robbery

use of force is present in the act of stealing goods or when property is taken directly from the victim.

break and enter

when people unlawfully enter a room with the intent of committing an offence, usually another property offence

white collar crime

embezzlement, tax evasion, insider trading

embezzlement

when a person takes anothers money that they have been entrusted with, like when an employee steals money from an employer

insider trading

when a person obtains confidential inside information about a company that will affect its share price, influencing a person to buy or sell shares.

computer offences

unauthorised access to, modification or impairment of restricted data with intention to commit an offence

fraud

can be part of any category of white collar crime, decietful or dishonest conduct carried out for personal gain.

main examples of drug offences

possesion, use, cultivation or supply

penalties for users of drugs

rehabilitation or good behaviour bond

penalties for drug traffickers

lengthy jail sentances and death in some countries

source for driving offences

Road Transport Act 2013 (NSW) and Crimes Act 1900 (NSW)

penalties for driving offences

on the spot fines, demerits with no mens rea needed to prove

public order offences

acts that are deemed to disturb the public order in some way

penalties for public order offences

a fine or other lesser penalty

preliminary offences

where a crime has been planned but has not been completed for some reason, like interrupted or unsucessful

two types of preliminary offences

attempt and conspiracy

attempt penalty

punishable by the same penalty as if the crime had taken place, unless its attempted murder which may carry a lower penalty.

conspiracy

when two or more people jointly conspire to commit a crime

problem in proving conspiracy

may be hard to prove if there is no physical record avaliable

regulatory offences

laws set out in delegated legislation, like regulations or local laws

examples of regulatory offences

lighting a fire whilst a fire ban is in place or traveling on public transport without a ticket

summary offence

minor offences

features of summary offences

heard and sentances by a magistrate in a local court, lesser penalties

source of summary offence law

Summary Offences Act 1988 (NSW)

Indictable offence

heard and sentenced by a judge in a district court and tried by a jury

steps before an indictable case is taken to court

1. charge certification

2. case confrencing

3. court

parties to a crime

principal in the first degree, principal in the second degree, accessory before the fact, accessory after the fact

principal in the first degree

the person who actually commits the criminal act

principal in the second degree

someone who was present at the crime and assisted or encouraged the principal offender

accessory before the fact

someone who helped the principal to plan or carry out the crime in planning or preparation before it is actually carried out

accessory after the fact

someone who assisted the principal offender after the crime has been committed

factors affecting criminal behaviour

psychological, social, ecomomic, political, genetic, self-interest

physiological factors

any possible mental illness affecting a persons behaviour

social factors

family situation or personal relationships that may influence a person to commit crime, also may be the environment a person has been raised in

economic factors

people from disadvantaged backgrounds are more likely to commit crimes

political factors

public order offences have political aspects when protests get violent

genetic factors

investigations where DNA of prisoners are taken to see if there is one common genetic marker, none have been conclusive

self interest

driven by greed and personal interest rather than underlying socioeconomic or political factors

situational crime prevention

stops the crime before it is committed, like CCTV cameras or non alcohol zones that act as crime deterrents

social crime prevention

more hollistic approach to address the underlying social factors that may lead to criminal behaviour.

strategies of social crime prevention

government funding, parenting workshops for parents of disadvantaged backgrounds, youth programs

criminal investigation process relevant themes and challenges

• balancing rights of victims, offenders and society

• use of discretion

sedition

Any oral or written intention to bring hate to the sovereign, including inciting disaffection against the government or parliament.

treason

Any attempt or intention to levy war against the state, assist the enemy or cause harm to or the death of the Governor General, Prime Minister or Queen of Australia.

source of police powers

Law Enforcement (Powers and Responsibilities) Act 2022 (NSW)

warrant

a legal document issues by a magistrate or judge authorising an officer to perform a particular act

code of behaviour for police

outlined in the standards of professional conduct, police are expected to treat all members of the community in a fair and ethical manner

complaints regarding police can be made to

NSW ombudsman and Police Integrity Commission

reasons for unreported crime

reluctance to become involved, fear of consequences, inability to report, dispute has already been settled with offender, burden of reporting crime

parameters for arrest

• catching a person committing an offence

• believing on reasonable grounds that someone has committed or is about to commit an offence

• possessing a warrant for arrest

maximum detention period

6 hours

what must the police do while a person is detained

gather enough evidence to charge an individual, and if this is not done they can be let free

charge negotiation

police exercising their discretion to avoid a trial, offering a less sentance if the accused pleads guilty to a lower amount of charges.

what do warrants include

• state the premesis being searched

• identify what is being searched for

summons

a legal document specifying the court date to which the accused must attend and the charge to which they must appear

subpoena

a legal document requiring a person to attend and give evidence to the court

field court attendance notice

for minor offences and issued by the police on the spot. Provide details of the offence, date and time of their court hearing and consequences if they fail to attend.

interrogation

the act or process of questioning a suspect, carried out by investigating officers

suspects right to silence

a suspect does not have to speak in interrogation until they have a lawyer present, but if anything is brought up in court that was not in interrogation, it may look suspicious.

the adversary system

Relies on a two sided structure of opposing sides, each presenting its own position, with an impartial judge or jury hearing each side and determining the truth in the case.

advantages of the adversary system

• allows each party an equal oppurtunity to present their case

• less prone to bias

• cases are prepared before trial

• Jury is a cross section of society and is impartial

disadvantages of the adversary system

• competing sides are not equal before the law in many cases

• if additional evidence is required, the judge and jury can not request it

• complex cases may not be understood by jury

two types of prosecutors

police prosecutors and the DPP

what do judges decide

just sentences

what do magistrates decide

both verdict and sentence