HSC Legal Studies: Crime (mapped to NSW Syllabus)

Crime

An act or omission against the community at large punishable by the state

Mens Rea

The intent of a person committing a crime, often referred to as the 'guilty mind.'

Actus Reus

The physical act constituting a criminal offence, often referred to as the 'guilty act.'

Criminal Law

Addresses offenses against the state or public, resulting in punishment or sanctions.

Elements of a Crime

Essential components to convict someone of a crime (actus reus and mens rea)

Strict Liability Offences

Only actus reus needs to be proven (mens rea is not necessary)

Indictable Offences

Serious criminal offenses usually tried in a higher court, potentially involving a jury.

Summary Offences

Less serious criminal offenses typically heard in a local or magistrate's court without a jury.

Presumption of Innocence

Legal principle assuming a person is innocent until proven guilty in a court of law.

Beyond Reasonable Doubt

High standard of proof required in criminal trials, where evidence must be compelling with no reasonable doubt of the defendant's guilt.

Sentencing

The determination of a suitable punishment or penalty for a person convicted of a crime.

Remand

The temporary detention of an accused person in custody until their trial.

Youth Justice Conferencing

A restorative justice process involving the victim, offender, and relevant community members, aimed at resolving issues arising from a juvenile offense.

Standard of proof

how convinced the decision maker needs to be that the case has been proven - in a criminal trial 'beyond reasonable doubt'

Standard of proof in a criminal trial

Beyond reasonable doubt

Causation

Requires a substantial link to be proven between the act and the crime

R v Blaue (1975)

Causation - "those who use violence on others must take their victim as they find them"

Offences against the person

Crimes which involve injury to an individual e.g. homicide, assault, sexual assault

Offences against the Sovereign

Crimes which aim to harm the governing bodies of a country e.g. treason, sedition, terrorism

Economic offences

Crimes that result in the loss of property or money e.g. white collar crime, computer offences, robbery

White collar crime

Job-related crimes committed by high-status people e.g. insider trading, tax evasion, embezzlement

Drug offences

Crimes involving prohibited or restricted drugs e.g. trafficking, possession, use, cultivation

Driving offences

Crimes involving motor vehicles which break traffic laws e.g. speeding, drink driving, negligent driving

Public order offences

Crimes which disrupt the normal order of society e.g. threatening language, public urination, riot and affray

Preliminary offences

Crimes that precede the crime itself, even if the crime is never actually committed e.g. conspiracy, attempt

Regulatory offences

Less serious crimes created by government regulation through special legislation, agencies, and tribunals

Affray

Use or threat to use violence in a way that would cause a reasonable person to fear for their own safety

Treason

an attempt or manifest intention to encourage war against the state, assist the enemy or cause harm to or the death of a head of state

Sedition

The promotion of discontent or hatred against a government or leader of the state through slanderous use of language, including urging force/violence against the government

Insider trading

The illegal trading on the share market to someone's own advantage using confidential information

Embezzlement

When a person steals money from a business over a period of time when they are employed at that workplace

Tax evasion

An attempt to avoid paying the full amount of taxes due by, among other things, concealing or underestimating a person's or business's income or assets

Conspiracy

When two or more people jointly plan to commit a crime

Principal in the second degree

The person who was present at the scene and assisted or encouraged the person who directly committed the act

Principal in the first degree

The person who directly commits the act

Accessory before the fact

The person who assisted in the planning of the crime or assisted in physically setting it up

Accessory after the fact

The person who assisted the principal offenders after the criminal act

Situational crime prevention

Strategies aiming to make committing a crime more difficult or less rewarding and occurs at the point of crime e.g. alarm systems, computer passwords

Social crime prevention

Strategies aiming to target the root causes of why people commit crime e.g. teaching healthy dispute resolution to teens, free parenting workshops

Legislation that governs police powers in NSW

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ('LEPRA')

Discretion

the freedom to decide what should be done in a particular situation (particularly relevant to police and judges)

CSI effect

The impact that DNA evidence has on jurors - it is often considered foolproof (infallible) - seen in Farah Jama 2008 case

Farah Jama (2008)

Jama wrongfully convicted of rape. Case was 100% reliant on DNA evidence, "substantial miscarriage of justice" (Prosecutor Sonnet). Victorian Gov awarded Jama $525,000 in compensation.

Warrant

a legal document issues by a judge or magistrate giving authority to police to perform a particular act; provides judicial oversight (accountability for police powers)

Arrest

to cause someone to stop and to bring them into custody

Charge

formal accusation of a crime

Maximum detention period without charge

6 hours, or 8 hours with a warrant (s116 LEPRA) - exception for terrorism (14 days)

Maximum detention period without charge if reasonable suspicion of terrorist activity

14 days after successful application to the Supreme Court (Terrorism (Police Powers) Act 2002 (NSW)) - known as preventative detention --> amended in 2016 to apply to 14yos and older

Court attendance notice

Legal document that states when and where a person must appear in court and the charge to which they must answer

Subpoena

Legal document requiring someone to appear as a witness in a court case

Bail

The temporary release of an accused person into society awaiting their trial, sometimes with conditions e.g. lodging a sum of money (surety) or attending a rehabilitation program

Bail Act 1978 (NSW)

Presumptions for/against bail for specific offences (complex and difficult to navigate)

Bail Act 2013 (NSW)

Removed 1978 presumptions and introduced 'unacceptable risk test' (s17 and 18)

Man Monis (2014) - Lindt Cafe Siege

Limitations of the Bail Act 2013 (NSW) - granted conditional bail 6 days after the Act came into effect and while on bail committed terrorist attack in Sydney

Bail Act - 2015 Amendment

Introduced 'show cause' test for some serious offences - accused must show cause why they should be granted bail. If they can, then unacceptable risk test. Doesn't apply to under 18s.

R v Hawi (2014)

Limitations of Bail Act 2013 (NSW). Hawi was on conditional bail for manslaughter when he was shot and killed. Public outcry.

LEPRA 2014 amendment

Simplified police powers, placed clearer guidelines on police discretion and expanded police powers around custody (detention from 4-6hours, no longer arrest as last resort)

LEPRA 2002 (NSW) section 31

Regulation of strip searches - "on reasonable grounds", "necessary for purposes of the search", "seriousness and urgency of circumstances make it necessary"

LEPRA 2002 (NSW) section 32-33

Strip searches must preserve the privacy and dignity of the suspect as much as possible in the circumstances

UNSW Report on Strip Searches

'Rethinking Strip Searches' by Drs Grewcock and Sentas (2019)

LEPRA 2002 (NSW) section 230

Use of force by police officers - may use "such force as is reasonably necessary" to exercise their function (e.g. arrest, search etc.)

NSW Police Operation guidelines on the use of tasers

Use of Conducted Electrical Weapons (Taser) - gives officers limited discretion to use tasers to protect life or from risk of harm

Roberto Curti (2012)

Excessive force - tasers: Died after being tasered 14 times by police in an attempt to arrest him for, what they mistakenly believed, was armed robbery. Coroner noted that police used excessive force, taser use was "not necessary".

Jack Kokaua (2018)

Excessive force - tasers: Tased 3 times which contributed to his death.

Clare Nowland (2023)

Excessive force - tasers: 95yo dementia patient at aged care home died after being tasered twice. She was holding a knife and approaching the police at a slow pace using her walking frame. Senior Constable White has been charged with manslaughter alongside other crimes.

Crime Stoppers

National community-based program that encourages people to report crimes (2022 - 372,000 contacts by public, 10,000 charges laid)

Maximum detention period

6 hours (a further 6 with a warrant) - LEPRA Pt 9

Original jurisdiction

the authority of a court to hear a matter for the first time

Appellate jurisdiction

the authority of a court to review matters on appeal from another court

High Court of Australia

Highest court in Australia and final avenue of appeal but cases must be granted permission to appeal. Hears matters on interpretation of the Constitution at first hearing.

NSW Court of Criminal Appeal

division of the Supreme Court which hears criminal appeals from lower courts, decisions binding on all other lower courts

NSW Supreme Court

Hears most serious indictable matters e.g. murder, manslaughter, conspiracy and serious drug matters. Judge and jury.

NSW Local Court

Hears summary offences and committal hearings for indictable offences, most matters resolved here

Committal hearing

a hearing in a Local Court to decide whether there is enough evidence to put a person on trial for an indictable (serious) offence

NSW Drug Court

Diversionary court that hears matters where drug addiction is a factor in the criminal behaviour

NSW Coroner's Court

Inquisitorial court that hears matters of suspicious deaths and fires

NSW Children's Court

Hears matters where children are the perpetrators (except for serious indictable cases), ruled over by a magistrate

Adversary system

a system of law where two opposing sides present their case to an impartial judge or jury

Inquisitorial system

A system of law in which a judge or magistrate investigates the matter personally with the assistance of police, detectives and the parties

The DPP

Director of Public Prosecutions - prosecutes indictable and some summary offences on behalf of the people of NSW

Public defender

A barrister who appears on behalf of an accused in serious criminal matters where legal aid has been granted

Dietrich v The Queen (1992)

Established the limited right to legal representation in Australia - right to legal representation if the crime was a serious indictable offence and the accused is likely to be denied justice without representation.

Legal Aid tests

Means, merit and jurisdictional tests

Charge negotiation

an agreement between the DPP and the accused that involves the acceptance of a guilty plea, usually in exchange for something else (often dropping a lesser charge)

Plea

A formal statement of guilt or innocence by the accused

Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017

Offers incentives to alleged offenders to plead guilty (25% reduction before committal hearing, 10% more than 14 days before trial, 5% until trial)

R v Lambaditis (2015)

Example of charge negotiation - Lambaditis pleaded guilty to manslaughter after one-punch attack in Sydney. Negotiated to plead guilty to manslaughter in exchange for dropping the murder charge.

Burden of proof

the obligation to prove the case - in a criminal trial the prosecution bears the burden of proof

Shifting burden of proof

when the burden of proof moves to the defence in a criminal case - this is when the accused raises a defence

Admissible evidence

If it is relevant and obtained legally (Evidence Act 1995 (NSW)) - inadmissible evidence can be used if a judge feels justice would be denied without it

Wood v The Queen (2012)

Highlighted that expert witnesses can give inaccurate evidence (expert witnesses are not infallible)

Defence: Insanity

Complete defence - must prove they didn't know what they were doing or that they knew and didn't understand that it was wrong due to mental illness

Defence: Consent

Complete defence - must prove the victim freely consented to the act, possible for assault or sexual assault (not for murder), hard to prove

Defence: Self-Defence / Necessity

Complete defence - must prove a person genuinely believes their actions were necessary to defence themselves or another from harm, and that the force used was reasonable

Defence: Mistake

Complete defence - only for strict liability, must prove that the belief was held honestly, was reasonable, and related to a fact rather than the law

Defence: Automatism

Complete defence - must prove the accused's actions were involuntary or could not be controlled and were not self-induced, no mens rea

Defence: Duress

Complete defence - must prove the accused committed a crime against their own free will under the unlawful pressure of another

Defence: Extreme Provocation

Partial defence - actions were the direct result of the person's actions which caused them to lose control and commit the offence in question (controversial)

Defence: Diminished Responsibility

Partial defence - must prove the accused suffers from a mental abnormality that caused them to act in a certain way e.g. low IQ

Complete defences

Results in an acquittal - insanity, consent, self-defence, mistake, automatism, duress