HSC Legal Studies (Knowledge)

Hey you! You need to go to jail cus it's illegal to be that stunning! I'm sleep deprived...

LEPRA 2002

Legislative’s balance
Law Enforcement Powers and Responsibility Act 2002.

Role of judiciary in balancing Police

Provides oversight to ensure police are not acting beyond the scope of their powers (e.g warrants)

Rule of law

No one is above the law, including those that enforce, create and apply it.

3 roles of police

• Prevent crime throu public prescense

  • Act as a deterrent

• Investigate criminal activies

• Assist in the prosecution of charged individuals (by collecting evidence)

LEPRA NSW 2002 Section 99

• Arrest without a warrant

  • Must REASONABLY suspect they’re in the act of committing an offense, just commited it or commited a serious indictable offence for which they have not yet been tried

    • Can’t arrest to question

Reasonable suspicion

Definition: Crime

An act committed

or duty omitted

Injurious to society

With punishments the law outlines to a tee

brought before a judicial proceedings on a set date

on behalf of the state.
Ps. im going insna e pleas ehelop me

The 4 legal characteristics of a crime

• An act or omission must be committed, which breaks the law

• The act or omission must cause an ouchie to society

• It’s a big enough f**k up to be punishable by the state

• The state takes you out (to court) and tries to prove the offense according to the rules (ew) of criminal procedures

3 main aspects of our lovely criminal law include

• A person be innocent until person be proved otherwise

• A person must be proven guilty beyooooond reasonable doubt

• Silence be not a sign of guilty and shall not be used as such upon the smexy grounds of court

NSW evidence act 1995 section 89 Right to silence

• When suspected of a crime, you may shut the fuck up if you choose to (you should)

  • Shutting the fuck up CANNOT be used as evidence that you fucked up

Police interview procedures

• You can refuse to tell the officer shit

  • Unless they ask your DOB, address and name in which you have to

Police caution

• Police officers must tell you that you can shut the fuck up

Confession admissibility

• Confessions can only be admissible in court when made lovingly voluntarily

NSW evidence act 1995 Section 89A

Permits unfavourable inferences to be drawn against a defendant who relies at trial upon a fact that was not mentioned at the time of questioning for the offence charged and where the defendant could reasonably have been expected to mention the fact in the circumstances existing at the time.

AKA

If you’re suspected of REALLY fucking up then failure to co operate followed by advancing a defence that’s damn good (and that one would reasonably expect you to mention during an interview) the court may consider you sus

✨Special cautions ✨

The adverse inference outlined in NSW evidence Act 1985 Section 89A be only acceptable when you had been given a smexy, fancy ✨special caution✨that tells you that shutting up makes you sus

Double Jeopardy

When a person has alr been committed or acquitted for a specific offence they cannot be tried for that same offence again.

Exceptions to double jeopardy rules

• There is new compelling evidence

• It is a life sentence offence

• And, in all circumstances, it is in the interests of justice for the order to be made

Crimes act NSW 1900

The MOST important statue in NSW. Lists offences and their min/max penalties

LEPRA: Section 99 clause3

• . The decision to hold in remand or grant bail must be made as soon as possible

LEPRA: Section 230

• Regulates the use of force GENERALLY for police officers

• Must be reasonably necessary to exercise this function

• Any excessive force is an assault

  • Formal complaints can be made to the law enforcement conduct commission

LEPRA: Section 231

• Use of force as is necessary to make an arrest or prevent the escape after an arrest

LEPRA: Section 202

• Safeguards for individuals

  • Non uniform police officers must identify themselves

  • Must inform why the exercise of power is happening

  • Provide name and place of duty

Case: NSW v Bradford James Robinson

• LEPRA s99

• Robinson was arrested for questioning

• Arrested without intent to charge

• Rob proved that his arrest was unlawful

Arrest warrant

Authorises the arrest of a person

Detention warrant

Authorisies that a person can be detained for more than 6 hours and less than 8 hours for the puspose of adavncing an inveestigation

Search warrant

Allows police to search a premises in order to investigate a crime or suspected crimianl activity

Covert search warrant

Allows police to search a premises for up to 3 years without notifying the owners/occupants

Crime scene warrant

Must be obtain in order to investigate a crime scene for longer than 3 hours

Criminal organisation search warrant

Allows police to conduct covert survilance of controlled operations when investigating sophisticated organised crime and criminal groups

Bail

Authority for a person to be liberated for an alleged offence or offence

Bail Act 1978

Presumption for and presumption against system

Legislature decided who received bail

Decided who received bail based on their crime.
Rights of offender> Society

Bail act 2013

Simpler than 1978

Established a two stage unacceptable risk test

Allowed for greater judicial oversight
Rights of offender> society

Bail Amendment act 2014

Introduced a show cause provisions (Non show case offences only need to pass the second test)

Increased difficulty to obtain bail

Rights of society> individuals

Conditional bail

Confiscate passport and license

Remand

Being held in a jail cell before trial

Unconditional bail

You’re released and don’t have to do anything special. Just show up on your test date

Curti case

Young Brazilian student tasered 14 times during a psychotic episode then died.

R v Dean 2013

Mens rea: Dean lit fires in a nursing home, killing several people in his recklessness.

R v Manju Sam, R v Thomas Sam

Mens rea, actus rea omission: Baby and negligence.

Section 18(1)(a) Crimes Act 1900

Murder: Max penalty is life

Section 18(1)(b) Crimes Act 1900

Any other punishable homicide is manslaughter punishable by 25 years in prison

What prosecution have to prove for murder

Where one:
Intended to kill the other person

Intended to inflict grievous bodily harm upon the other person

Acted with “reckless indifference” to human life

Died while you were committing a serious offence

Elements of mens rea

• The act of omission actually occured

• Done by the defendant

• Was voluntary

R v Blaue (1975)

Novus actus interveniens

New intervening act which broke the chain of causation

Egg shell skull rule

States you must take your victim as they are, and any contribution to their death by their personal characteristics such as physical constitution shall not provide a defence.

Categories of crime

• Offences against the person

• Offences against the sovereign

• Economic offences

  • Crimes against property

  • White collar crimes

  • Computer crimes

• Drug offences

• Driving offences

• Public order offences

• Preliminary offences

Why not report crime?

• Fear for safety

• Fear of exposing oneself

• Fear that information they provide is incorrect or unimportant

• Not wanting to get involved

• Fear/distrust of police

Jubelin case

• Unlawful conduct while investigating the case of William Tyrrell

• Unlawfully recorded 4 conversations with Tyrell family

Crimes Forensic Procedures Act 2000 Section 3

Forensic procedures

• Intimate

• Non intimate

Intimate forensic procedures

• Buccal swap of private parts by someone other than the person being swabbed

• Vacuum suction, tape lifting or scraping of private parts

• Blood samples

• Samples of pubic hair

• Dental impressions

• Photos of a person’s private parts

Non-intimate forensic procedures

• External examinations of a person’s body parts exc priv parts

• Self administered buccal swap tests

• Samples of non pubic hair

• Hand prints, finger prints, footprints or toe prints

R v Hawi

While awaiting trial for murder at an airport, was given conditional bail.

Stop, search and detain

Can be done without a warrant with reasonable suspicion the person has

• Stolen smth

• Used or intend to use an indictable weapon or firearm

• A prohibited plant or drug

Ordinary search

Search of a person or articles in their possession

Frisk search

A search of a person conducted by quickly running hands over their outer clothes or passing an electronic detector over them

Strip search

May only be conducted if police suspect on reasonable grounds is necessary but is a last resort

Man Monis Case

Committed a terrorist attack while on bail known as the Lindt Cafe Seige.

Fesus Case

First murderer to be released on NSW 2014 new bail amendments.
Large ass public outcry

Was allowed bail cus judge didn’t think he posed a significant risk

Statutory guidelines/mandatory sentencing

Issued by parliament clarifying how judges are to sentence
Acts as guiding exercise of judicial discretion
May set maximum or minimum sentences

Judicial guidelines

Issued by NSW Court of Criminal Appeal
Not binding
7 guidelines exist as of Feb 2023
Reduce inconsistency
R vs Jurisic

Mandatory sentencing

Refers to the practice of some parliaments of legislation for a particular sentence for a particular crime
It takes away judicial discretion
Argument: Encroaching on discretion, balancing rights (victim+society>indiv)

Crimes (Sentencing Procedure) Act 1999 Section 21A

Details aggravating and mitigating factors

The 21 aggravating factors

•The victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation.

because of the victim’s occupation.

• The offence involved the actual or threatened use of violence.

• The offence involved the actual or threatened use of a weapon.

• The offence involved the actual or threatened use of explosives or a chemical or biological agent.

• The offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol, or any other intoxicating substance.

• The offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences).

• The offence was committed in company.

• The offence was committed in the presence of a child under 18 years of age.

• The offence was committed in the home of the victim or any other person.

• The offence involved gratuitous cruelty.

• The injury, emotional harm, loss or damage caused by the offence was substantial.

• The offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation, or age, or having a particular disability).

• The offence was committed without regard for public safety.

• The actions of the offender were a risk to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth).

• The offence involved a grave risk of death to another person or persons.

• The offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence.

• The offender abused a position of trust or authority in relation to the victim.

• The victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim’s occupation (such as a taxi driver, bank teller or service station attendant).

• The offence involved multiple victims or a series of criminal acts.

• The offence was part of a planned or organised criminal activity.

• The offence was committed for financial gain.

The court cannot take into account any aggravating or mitigating factors in sentencing if it is contrary to an Act or rule of law.

Mandatory sentences (minimum or maximum) overrule mitigating factors or guidelines

Mitigating factors

• The injury, emotional harm, loss, or damage caused by the offence was not

substantial.

• The offence was not part of planned or organised criminal activity.

• The offender was provoked by the victim.

• The offender acted under duress.

• The offender does not have any record (or any significant record) of previous

convictions.

• The offender is of good character.

• The offender is unlikely to re-offend.

• The offender has good prospects for rehabilitation, whether by reason of the

offender’s age or otherwise.

• The remorse shown by the offender for the offence, but only if:

o The offender has provided evidence that they have accepted

responsibility for their actions,

o The offender has acknowledged any injury, loss or damage caused by

their actions or made reparation for such injury, loss, or damage (or both)

o The offender was not fully aware of the consequences of what they did,

due to age or disability.

• The offender pleaded guilty (as provided by section 22).

• The degree of pre-trial disclosure by the defence (as provided by section 22A),

• The offender gave assistance to law enforcement authorities (as provided by

section 23).

5 main principles of sentencing

• proportionality: the sentence needs to be appropriate or proportionate to the gravity of the crime;

• parity: treat like cases alike and different cases differently;

• totality: the total sentence, where there are multiple terms, needs to be just and appropriate to the whole of offending;

• imprisonment as a last resort; and

• parsimony: impose the least severe sentencing option that is open to achieve the purpose or purposes of punishment.

VIS definition

Victim impact statement
Allows victims/their family to inform the offender and court about the impact of the offenders crime
Read after conviction, before sentencing (so there’s no bias in conviction)

VIS’s purpose

Give voice to victims and family, has little weight in sentencing (judge must be objective)
Allows the victims to have some rights

VIS does not include

details of crime itself, medical conditions, history of/opinion of the character of the offender

The charter of Victims rights is contained in ___ act

Victims’ Rights and Support Act 2013

Right 1 in the The Charter of Victim’s Rights

1. Courtesy, compassion, and respect

A victim will be treated with courtesy, compassion, cultural sensitivity and respect for the victim's rights and dignity.

Right 2 in the The Charter of Victim’s Rights

2. Information about services and remedies

A victim will be informed at the earliest practical opportunity, by relevant agencies

and officials, of the services and remedies available to the victim.

3. Access to services

A victim will have access where necessary to available welfare, health, counselling,

and legal assistance responsive to the victim's needs.

4. Information about investigation of the crime

A victim will, on request, be informed of the progress of the investigation of the

crime, unless the disclosure might jeopardise the investigation. In that case, the

victim will be informed accordingly.

5. Information about prosecution of accused

1. A victim will be informed in a timely manner of the following:

a. the charges laid against the accused or the reasons for not laying charges,

b. any decision of the prosecution to modify or not to proceed with charges laid against the accused, including any decision to

accept a plea of guilty by the accused to a less serious charge in return for a full discharge with respect to the other charges.

c. the date and place of hearing of any charge laid against the accused,

d. the outcome of the criminal proceedings against the

accused (including proceedings on appeal) and the sentence (if

any) imposed.

2. A victim should be consulted before a decision referred to in paragraph (b)

above is taken if the accused has been charged with a serious crime that

involves sexual violence or that results in actual bodily harm or psychological

or psychiatric harm to the victim, unless:

a. the victim has indicated that he or she does not wish to be so consulted,

or

b. the whereabouts of the victim cannot be ascertained after reasonable

inquiry.

Grounds for appeal: An error of law (an appeal against conviction)

In this situation, the appellant will be

convicted, however, will argue that the conviction should not hold because

there has been an error in the application of the law. If, for example, a jury is

misdirected, then it might form the view of guilt based on that misdirection. If

this occurs, then a conviction can be based on an error of law.

Grounds for appeal: An error of law (An appeal against the severity of the sentence.)

In this situation, the

defendant asserts that the harshness of the sentence was based on an error

in the application of the law. Such an error could have occurred in the

interpretation of the statutory criteria or in the placing of incorrect weight in the

sentence on subjective or objective factors. In some cases, a defendant will

argue against a conviction, but if that fails, will argue ‘in the alternative, the

sentence is too severe’.

Mistake of Fact

The second ground for appeal is based on mistake of fact or the question of fact. In

this situation, the issue is how the evidence has been interpreted. It is possible that

the actual facts (including the actual offence) have been mistaken or misunderstood.

96

When there is an appeal based on this, then a conviction can be quashed. This was

the case with Gordon Wood. Wood was originally convicted of throwing his girlfriend

Caroline Byrne off a cliff. However, the evidence of an expert witness, which was

accepted in the original trial, was subsequently found to be highly questionable. The

forensic evidence, upon which the original conviction was based, was found to not be

factual and thus there were mistakes of fact.

Deterrence (general and specific)

• Discouraging offenders from re-offending and other persons from committing this crime

• Harsher sentences have little to no deterrence

Retribution

• Ensures offenders are adequately punished for their offence

• Will consider affect on victims

Rehabilitation

• Aims to discourage recidivism

• may include several sentencing options and programs e.g., drug counselling, drug rehabilitation programs, alcohol programs and anger management courses.

• Most important as it reduces recidivism and reintroduces them to society

Incapacitation

• Taking someone off the street

• Harshest form as it involves imprisionment and depreives them of freedom and liberty

Crimes (Sentencing Procedure) Act 1999 (NSW) – s3A – Purposes of Sentencing (7)

a. To ensure that the offender is adequately punished for the offence,

b. To prevent crime by deterring the offender and other persons from committing similar offences,

c. To protect the community from the offender,

d. To promote the rehabilitation of the offender,

e. To make the offender accountable for their actions,

f. To denounce the conduct of the offender,

g. To recognise the harm done to the victim of the crime and the community.

Former DPP. Nicholas Cowdery

He believes that it is only through education and social

programs that we can really deter people from committing crimes. He also

suggested that there is little conclusive evidence that harsher penalties have a

deterrent effect on potential offenders; well-educated, healthy people with a

comfortable standard of living are not the ones filling up our jails.

Alternative methods of sentencing: restorative justice

Many used for juvenile offenders
Less formal

Less serious crimes

Benefits of restorative justice

Improves relationship between offender and courts, recidivism, diverts away from the court system

Circle setencing

• Aboriginal offenders who have admitted guilt

Circle sentencing statistics

• Are 9.3 percentage points less likely to receive a prison sentence.

• Are 3.9 percentage points less likely to reoffend within 12 months.

• Take 55 days longer to reoffend if and when they do.

Restorative Justice programs scaffold

Argument – Circle Sentencing
Counterargument – Youth Justice Conferences
Balanced argument – overall judgement

Post sentencing considerations: security classifications

Extremely high level of security: AA
Special security risk and max security: A1 and A2 (E1 and E2)

Medium security: B

Minimum security: C1, C2, C3

Post sentencing considerations: Protective custody

• Prisoners who may be at risk in prison due to other offenders

• Right of offender to feel safe and be free from hair

Post sentencing considerations: Parole

• Non custodial sentence fulfillment

• Still have to report to a parole officer

• No passport, meet certain conditions

• Breach of conditions takes away these rights

Post sentencing considerations: Parole arguments

• Balancing rights

• Discretion (judge and parole authority)

• Ineffectiveness: those who release and commit crimes

• Effectivness: Parole increases rehabilitation and decreases recidivism

Post sentencing considerations: Preventative Detention and Continued Detention

• Encroaches on individual rights

• Increases sentence where its not safe to release the criminal

Post sentencing considerations: Sexual Offenders Registration

• Serious sex offender’s names are placed on a register

• Makes society, police and courts aware of those who are serious criminals

• Makes it hard for offenders to move on from that offense, decreases rehabilitation

Post sentencing considerations: Deportation

• Non citizens subject to a prison sentence of 12 months of more and have been a resident for less than 10 years they may be deported from Australia

YO: The welfare model

Adopts a postivie approach
has not been effective in past years
based on the assumption that juvenile wrongdoing is the

product of social or environmental factors

YO: the justice model

Traditional approach, 0 tolerance and emphasises punishment

YO: the restorative model

balances between the welfare and justice model
Aims for punishment

Young offenders act 1997

Introduced new procedures

• Youth justice conferencing

• Added minimum age of criminal responsibility

United Nations Convention on the Rights of the Child

Gave children rights