Legal Studies Topic 1

Crime

Act or omission to act against the community, punishable by the state

Why crime differs between societies

Culture, religion, history, values and political systems

Crime reflects morality

Crimes reflect society's moral judgements; offence against all of society

Criminal vs civil law

Criminal: state prosecutes, punishes. Civil: individual sues for a remedy

Who prosecutes?

Police and/or DPP (the Crown)

Criminal standard of proof

Beyond reasonable doubt

Civil standard of proof

Balance of probabilities

Actus reus

'Guilty act' - physical act of the crime

Mens rea

'Guilty mind' - intent to commit the crime

Three levels of mens rea

Intention (highest), recklessness, criminal negligence (lowest)

Recklessness

Aware of the risk but took it anyway

Criminal negligence

Failed to foresee a risk they should have

Strict liability offence

Only actus reus needed, e.g. speeding

Why strict liability is used

Efficiency for high-volume minor offences

Causation

Link between accused's act and the result

Summary offence

Minor; Local Court, magistrate, no jury

Indictable offence

Serious; District/Supreme Court, judge and jury

Triable summarily

Indictable offence heard in Local Court by accused's choice

Homicide

Unlawful killing of another person

Murder

Deliberate killing (or reckless indifference); max life

Manslaughter

Killing without murder-level intent; max 25 yrs

Voluntary manslaughter

Intent present but reduced by e.g. provocation

Involuntary manslaughter

Death from recklessness/negligence, no intent to kill

Constructive manslaughter

Death during another unlawful, dangerous act

Assault

Use or threat of physical force

Sexual assault

Sexual contact without consent

Affirmative consent (2021)

Consent must be given and obtained at the time of the act

Offences against the sovereign

Treason and sedition

Economic offences

Property, white-collar and computer crimes; largest category

Larceny vs robbery

Larceny: theft without force. Robbery: taken from victim with force

White-collar crime

Non-violent crime by professionals, e.g. embezzlement, insider trading

Drug offences

Possession, use, cultivation, supply, trafficking

Public order offences

Disturbing the public, e.g. affray, riot, offensive conduct

Preliminary crimes

Attempt and conspiracy

Regulatory offences

Minor breaches of regulations, e.g. water restrictions

Principal in the first degree

Actually commits the crime

Principal in the second degree

Present and assists, e.g. lookout

Accessory before / after the fact

Helps plan the crime / helps after it, e.g. getaway driver

Factors affecting criminal behaviour

Psychological, social, economic, political, genetic, self-interest

Situational crime prevention

Making crime harder, e.g. CCTV, lighting, alarms

Social crime prevention

Tackling root causes, e.g. education, youth programs

Coercive Control Act 2022 (NSW)

New crime - law evolving with community values

R v Thomas Sam; R v Manju Sam [2009]

Baby died of treatable eczema - manslaughter by criminal negligence

Swan v The Queen (2020)

Victim died 8 months later; chain of causation unbroken

Boughey v The Queen (1986)

Reckless indifference to human life = murder

R v AEM [2002]

Sentence outrage led to s 61JA aggravated sexual assault in company

R v Whybrow (1951)

Clear intent to kill = attempted murder despite failure

Fighting Words (ALRC 2006)

Sedition review → 2010 reform removing 'sedition'

Role of police

Enforce criminal law, prevent and detect crime, keep public order

Police and the arms of government

Part of the executive - separate from the legislature and courts

Police jurisdiction

NSW Police (state offences); AFP (Commonwealth offences)

LEPRA

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) - contains most police powers

Five main police powers

Arrest/interrogate, search and seize, reasonable force, technology, recommend bail

Key challenge for police powers

Balancing police powers against citizens' rights

Checks on police powers

Warrants, professional conduct standards, complaints, LECC, Ombudsman

LECC

Law Enforcement Conduct Commission - oversees police conduct (replaced the PIC)

Serious Crime Prevention Orders (2016)

Court can restrict a suspect's movement for up to 5 yrs; balance of probabilities

Organised Crime and Public Safety Act 2016

Investigative detention of terror suspects as young as 14

Reporting crime

Usually by victims/witnesses; community responsibility

Why crimes go unreported

Fear, reluctance to be involved, already settled, too much effort

Widely reported crimes

Property offences - needed for insurance claims

Under-reported crimes

Sexual assault (90%+ unreported) and domestic violence

Crime Stoppers

Anonymous reporting of crime

Police discretion (investigation)

Decide whether to investigate based on severity, chance of success, resources

Forensic investigation

Scientific examination of objects/substances at a crime scene

Inadmissible evidence

Can't be used in court, e.g. contaminated or forced confessions

Evidence Act 1995 (NSW)

Evidence must be obtained lawfully or may be excluded

Charge

Formal accusation that a person committed an offence

DNA evidence

Links or clears a suspect; doesn't prove guilt on its own

Forensic samples

Need consent; otherwise magistrate can order it with reasonable force

Concerns with DNA

Reliability, delays, privacy

Y-DNA matching

Traces paternal family line; used by NSW Police since 2019

Stop and search

Allowed on 'reasonable grounds' - no warrant needed

Strip searches - LECC (2022)

Suspicion of drugs in body cavities isn't enough to justify one

Sniffer dogs

NSW Ombudsman (2006): ineffective at catching drug dealers

Warrant

Court document authorising police to arrest, search, seize or phone tap

Why warrants matter

Judicial oversight against misuse of power

Search warrant - premises

Usually needed to search premises without consent (Part 5 LEPRA)

Telephone warrant

Emergency warrant when time is critical

Lawful arrest (LEPRA)

Caught in the act, reasonable grounds, untried serious offence, or arrest warrant

Arrest as last resort

Criticised for being used too early to aid investigations

Detention period

6 hrs, extendable by 6 more with a magistrate's warrant

'Time out' periods

Time not counted, e.g. transport, waiting for a lawyer, medical treatment

Caution

Told they don't have to say anything; anything said may be used as evidence

Right to silence

Suspect doesn't have to answer police questions

Under-18s in interrogation

Entitled to a responsible adult present

Recorded interviews

Required for serious offences; ensures guidelines are followed

Release or charge

After max detention, police must charge or release unconditionally

Terrorism preventative detention

Up to 14 days without charge (Supreme Court order)

Court attendance notice

States when/where to appear and the charge

Subpoena

Court order to attend and give evidence or produce documents

Bail

Temporary release while awaiting trial, sometimes with conditions

Forms of bail

Lodging money, own recognisance, surety

Bail conditions

Reporting to police, surrendering passport, monitoring devices, area limits

Bail Act 2013 (NSW)

Bail refused if the accused is an 'unacceptable risk'

2022 s 22B amendment

Guilty and likely jailed → must show exceptional circumstances for bail

Remand

Custody awaiting trial when bail is refused; time deducted from sentence

Issue with remand

Detains people presumed innocent; unsentenced prisoners ~37% (2023)

Police discretion - issue

Efficient but can discriminate against First Nations and young people

R v Rondo [2001]

Defined 'reasonable suspicion' - more than a possibility, needs a factual basis