Crime- Theory

What is a crime?

Any act or omission of duty resulting in harm to society and punishable by the state.

Why does criminal law suggest society is the victim, not just the person harmed?

Because criminal behaviour is an attack on societal standards and expectations, so society has a responsibility to punish the offender.

Give an example each of a crime by act and a crime by omission.

Act: R v Xie (murder of the Lin family). Omission: R v SW & BW, Re: Ebony (parents omitted their duty and starved Ebony to death).

What two elements of a crime must be proved beyond reasonable doubt?

Actus Reus (guilty act) and Mens Rea (guilty mind).

What is Actus Reus?

The actual physical performance or conduct of criminal activity; the prosecution must prove the accused carried out and planned the act.

What is Mens Rea?

An individual's intention to commit the crime; the prosecution has the onus to prove the accused was aware.

What are the three degrees of Mens Rea, from highest to lowest?

1) Malicious intention (wilful intent, hardest to prove, e.g. R v Xie). 2) Recklessness (aware actions could lead to crime but did it anyway, e.g. R v Munter, R v Button). 3) Criminal negligence (failed to foresee a risk they should have, e.g. R v Sam & Sam, Re: Baby Gloria).

What is a strict liability offence?

An offence where the accused is liable for their action but only actus reus needs to be proved, usually minor/summary offences.

Give three examples of strict liability offences.

Speeding, not tapping on public transport, and minors in possession of spray cans.

What must the prosecution prove regarding causation?

That there is a link between the accused's action and the harm caused, and that the action was a substantial cause of the crime.

How is 'post and boast' behaviour categorised as a crime?

It doesn't form a standalone category; it sits under Offences Against the Person or Public Order Offences depending on the nature of the act, e.g. posting violent acts falls under assault/affray/riot provisions.

What federal provisions can apply if technology/online publication is involved in a crime?

Federal cybercrime provisions under the Criminal Code 1995 (Cth), e.g. using a carriage service to menace, harass or offend, or sharing/encouraging criminal acts online.

What is homicide?

The killing of one human being by another.

What must be proven for murder?

A deliberate act to kill or reckless indifference to human life. 40% of all homicides are domestic violence related.

Give three cases of murder.

R v Xie, R v Katherine Knight, R v Stein.

What is involuntary manslaughter? Give a case.

Death occurs but there is no intent, only a reckless act, e.g. DPP v Newbury & Jones, where a dropped slab of concrete killed a train guard.

What is voluntary manslaughter? Give cases.

Killing with intent but with mitigating circumstances, e.g. R v Camplin (teen killed abusive uncle) and R v Silva (self-defence against a violent partner).

What is constructive manslaughter?

Killing while committing another criminal or dangerous act, e.g. a robbery that ends up killing a bystander or security guard.

What is infanticide, and give two cases.

Under the Crimes Act 1900 (NSW), a mother causing the death of a child under 1 year; the court considers her mental state. R v Kelli Lane (no postnatal depression found, baby never found); R v Folbigg (convicted, later released due to new DNA evidence).

What is death by reckless driving, and its maximum penalty?

Causing death through reckless driving without intent to kill; up to 14 years imprisonment. Aggravating factors include leaving the scene, DUI, drugs, speeding.

Give two cases of death by reckless driving.

R v Borkowski (established the Borkowski principles; guilty plea gave 25% discount) and R v Brett Button (the wedding bus driver).

How is assault categorised, and what makes it aggravated?

Physical harm or threat of harm including threats via phone/text; aggravated if a weapon is used or a police officer is assaulted.

What legislation covers domestic violence assault offences in NSW?

Crimes (Domestic and Personal Violence) Act 2007 (NSW) and the Crimes Act 1900 (NSW), including the Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW).

What must be proven for sexual assault under the Crimes Act 1900 (NSW)?

Forced sexual intercourse without consent; there is no consent if the victim is intoxicated, coerced, or the accused abuses a position of trust, e.g. R v Dawson.

What is indecent assault, and give a case.

An indecent act performed in front of another person without consent, e.g. R v AM, KEM & MM (young offenders).

What is aggravated sexual assault in company, and what law reform followed?

Sexual assault performed with others, carrying a higher penalty. R v AEM, KEM & MM law reform increased the maximum penalty to life imprisonment.

What is treason, and its penalty?

Attempting to levy war, help an enemy, or cause the death of the Governor-General, PM or King; punishable by life imprisonment under the Crimes Act 1914 (Cth) and CCC s.60.

What is sedition?

Encouraging hatred or contempt against the government, monarch or constitution using slander or urging violence.

Why are terrorism offences classified as Offences Against the Sovereign, and give a case.

Because they target the state, government or public order rather than an individual. The Dr Mohamed Haneef case, a Queensland doctor accused of assisting a relative in terrorism, arrested by the AFP but not charged, illustrates this.

What are the three types of crimes against property?

Larceny/theft (taking property without consent), robbery (forcibly taking property), and break and enter (entering property to commit an offence).

What are the three types of white collar crime?

Embezzlement (stealing money from an employer), tax evasion (fraudulent avoidance of tax), and insider trading (using confidential information to buy/sell shares).

What do computer offences typically involve?

Unauthorised access, modifying or damaging data, including hacking, identity theft, fraud, and releasing personal data.

What legislation covers drug offences in NSW?

Possession/use under the Summary Offences Act 1988 (NSW); prohibited/restricted drugs under the Drugs Misuse and Trafficking Act and the Customs Act; includes cultivation, possession, supply and importing (a transnational crime).

How are driving offences by under-18s treated in NSW?

They are still tried as adults in the Local/District Court, not the Children's Court, and police can issue on-the-spot fines.

What distinguishes minor from serious public order offences?

Minor offences fall under the Summary Offences Act (e.g. offensive/threatening language, unlawful possession of spray cans); serious ones fall under the Crimes Act (e.g. affray, riot, explosives, firearms, bomb hoax).

What is affray, and its maximum penalty?

Threats of violence causing fear for safety, e.g. a public brawl; up to 10 years imprisonment.

What is riot, and give a case?

12 or more people using or threatening violence for a common purpose; R v Hawi, bikie gang mayhem at Sydney airport resulting in murder.

What does the Graffiti Control Act 2008 (NSW) and Summary Offences Act cover for spray can possession?

Custody of spray cans by minors without lawful excuse, aiming to reduce crime by restricting sale to minors, requiring ID checks, locking up paint in stores, and giving police power to confiscate cans and issue fines.

What did the Crimes Amendment (Knife Crime) Act 2024 (NSW) introduce?

It amended the Crimes Act 1900 and LEPRA, giving police on-the-spot fines, extended search powers, and higher penalties for knife possession, especially for repeat youth offenders.

What is a 'preliminary crime', and its two types?

A crime planned or attempted but not completed. Types: Attempts (e.g. R v Whybrow, attempted electrocution via a soap dish) and Conspiracy (e.g. R v Roger Rogerson & another, plotting to murder Jamie Low).

If someone dies as a result of a driving incident, how is it categorised?

As a homicide, not a driving offence.

What are indictable offences, and where are they tried?

More serious crimes (e.g. murder, sexual assault) dealt with under the Crimes Act 1900 NSW, Crimes Act 1914 Cth, and Commonwealth Criminal Code Act 1995; tried in the District or Supreme Court.

What happens if an accused pleads guilty to an indictable offence?

The case can be tried summarily, heard in the Local Court, which is faster, less expensive, and may result in a shorter sentence.

What happens if an accused pleads not guilty to an indictable offence?

A jury will be empanelled and the prosecution will bring the case to court.

What are summary offences, and where are they heard?

Less severe offences carrying lesser penalties, usually heard in the Local Court with no jury; presented by a police prosecutor.

What penalties do summary offences typically carry?

Fines, 2 to 5 years' imprisonment, and loss of licence.

What does the Summary Offences Act 1988 (NSW) list?

Offences in public places such as offensive/dangerous behaviour, carrying knives and laser pointers, prostitution, intimidating vehicle use, and participating in unauthorised public assembly.

Give an example of a strict liability summary offence.

Breaching water restrictions, or lighting a fire on a total fire ban day.

What is a principal in the first degree?

The person who actually commits the criminal act; likely to receive the highest sentence.

What is a principal in the second degree?

A person present at the crime who helped or encouraged the principal offender, e.g. acting as lookout or giving instructions by phone; they do not have to be physically present.

What is an accessory before the fact?

Someone helping the principal plan or carry out the crime before the act is committed.

What is an accessory after the fact? Give a case.

A person who assisted the principal after the act, e.g. driving the getaway car, hiding the offender or disposing of evidence; e.g. the girlfriend of the Huxley bashing offender, charged as an accessory after the fact for hiding him from police (ABC '20 Years Jail for brutal Huxley bashing').

What was Michelle Sharon Proud's role and why was she found guilty as an accessory before the fact?

She introduced Mr Spicer to Ms Evans knowing serious harm might befall Ms Foreman; her role was minor and passive, but facilitating the link between principal offenders, knowing the violent intent, was sufficient to establish guilt as an accessory before the fact.

List the six factors affecting criminal behaviour.

Psychological factors, social factors, economic factors, political factors, self-interest factors, and genetic theories.

Give three cases illustrating psychological factors affecting criminal behaviour.

R v Porter (depression during a divorce, poisoned himself and his son), R v Sorrell (insane, purchased a hunting knife and killed Furlong), and R v Milat (suggested to have been triggered by a break-up before killing seven backpackers).

Give a case illustrating social factors affecting criminal behaviour.

R v Kristy Abrahams, found guilty of murdering her 6-year-old daughter Kiesha; sentencing revealed her own father had killed her mother.

What do ABS statistics suggest about economic factors and crime? Give a case.

Crime rates are associated with poverty, unemployment, low education, truancy and dysfunctional families with drug/alcohol abuse. Case: R v Elliot & Blessington (aged 16 and 14), who kidnapped, sexually assaulted and murdered Janine Balding, then stole her purse and used her credit cards.

Give two examples of political factors affecting criminal behaviour.

R v Man Monis (on bail for attempted murder of his wife at the time of the Sydney Siege), and the SMH report on police officer Chan shot dead in Parramatta by a young terrorist.

What are self-interest factors in criminal behaviour?

Where the individual conducts the crime knowing they will personally gain, e.g. drug supplying/importation, embezzlement, slavery.

What is the status of genetic theories of criminal behaviour?

None have been proven, though progress in DNA research may prove them in future; there is ongoing debate around nature vs nurture.

What are the two ways society's resources can be used to prevent crime?

Situational crime prevention and social crime prevention.

What is situational crime prevention? Give examples.

Physically designing or changing the environment to reduce crime, e.g. locks, security guards, CCTV, lighting, ink security tags, no-alcohol zones, steel bollards.

What is social crime prevention? Give examples.

Focused on changing the psychology of a person/group to reduce social and economic factors motivating crime, e.g. parenting programs, anger management, school attendance programs, drug and alcohol programs, the Drug Court.

What did former DPP Cowdery say about crime prevention resourcing?

That far more resources need to be placed in proactive social crime prevention rather than making suburbs into fortresses through situational crime prevention and increasing police powers.

What are the two categories of international crime?

Transnational crimes and crimes against the international community (CAIC).

What crimes fall under transnational crime?

Slavery, human trafficking, drug trafficking, trafficking in arms, terrorism, and cyber crime.

What convention obligates signatories to cooperate against transnational organised crime?

The Convention Against Transnational Organised Crime (CATOC), which resulted in the Protocol to Prevent, Suppress and Punish Trafficking in Persons (PPSPTP).

What is the role of the Australian Federal Police (AFP) in transnational crime?

Under the CCC Act 1995, the AFP has wide powers to deal with transnational crimes, working with other countries' enforcement authorities and a network of 33 countries to share resources.

What other case did the AFP investigate involving slavery/trafficking of an Australian?

The prosecution of Baston (an American) for slavery and human trafficking of several women including his Australian wife.

What is a recent example of the AFP acting on transnational drug crime?

SMH 'AFP bust men trying to cut open $12m cocaine shipment', Sydney men sentenced over a 13 million dollar cocaine scheme after ABF detected 42 blocks of white powder shipped from Panama.

What is the role of the Australian Border Force (ABF)?

Works closely with the AFP to intercept illegal goods and people, detecting and preventing border-related offences involving trafficking, immigration and customs laws.

What is the role of the Commonwealth Director of Public Prosecutions (CDPP)?

Prosecutes criminals under Australian national law (CCC, Customs Act, Immigration Act); achieves a 98% conviction rate according to the prosecutor's website.

Give a CDPP case example.

Commonwealth Prosecutor v Wade Homewood, engaged in terrorism for 3 years, investigated and charged under the CCC and the Firearms Act 1996 (NSW).

What limits Australia's domestic measures against transnational crime?

Australia may be impacted if other countries have weak laws; these crimes are covert, hard to enforce, and technology (e.g. the dark web) makes organised crime a difficult-to-detect global issue.

What is Interpol's role in transnational crime?

186 member countries cooperate to investigate, arrest and prosecute transnational criminals, using red notices to alert countries to locate wanted fugitives.

Give two examples of Interpol red notices.

Anthony Sitar, wanted by Australia since 2011 for importing commercial quantities of drugs, and Fara Meilad, wanted for terrorism and forgery.

What is a limitation of Interpol's effectiveness?

Fugitives are hard to find; Sitar's notice has been outstanding since 2011.

What are CAIC crimes, and what court prosecutes them?

Crimes against the international community, recognised and condemned by UN member nations, prosecuted by the International Criminal Court (ICC).

Why was the Rome Statute (2002) created?

Due to the increase in genocide, war crimes, crimes against humanity and crimes against another country, the UN created the Rome Statute 2002, setting up the ICC as a permanent court to prosecute individuals for CAIC crimes.

How many nations are party to the Rome Statute?

125 nations.

When will the ICC prosecute a member's national?

Only if the country isn't willing or doesn't have the judicial capacity to prosecute; e.g. Ben Roberts-Smith may be prosecuted for war crimes in Australian courts (federal court) but this hasn't happened yet.

What are the four jurisdictional triggers for the ICC under the Rome Statute?

1) The accused is a national of a member state. 2) The alleged crime occurred in a member state's territory. 3) The ICC issues a warrant if a member state refuses to prosecute. 4) The situation is referred by the UN Security Council or the ICC Chief Prosecutor.

What punishments can the ICC impose?

Imprisonment up to life (served in a country designated by the court), fines, asset forfeiture, and victim compensation (reparations).

What are the four main crimes the ICC prosecutes?

Genocide, crimes against humanity, war crimes, and crimes of aggression.

Define genocide and explain why it is difficult to prove.

The deliberate extermination of a group based on religion, nationality, ethnicity or race, including killing members, ethnic cleansing, preventing births, or forcibly transferring children; difficult to prove as it requires evidence of intention to destroy the group, referencing military orders.

What are crimes against humanity?

Widespread, systematic attacks against civilians including murder and rape; easier to prove than genocide as they relate to any civilians.

What are war crimes, and what convention defines the rules of war?

Activities during war that go against the Geneva Conventions, e.g. torture of prisoners, biological experiments, wilful killings, and intentionally attacking civilians, journalists or aid workers.

What is a statistic showing the scale of war crimes in Gaza?

Since October 2023, more than 500 aid workers and at least 1,500 health workers have been killed.

What are crimes of aggression?

The use of armed force against a country's sovereignty, including invasion, military occupation, forced annexation, bombardment, or blockade.

What criticism has the Yale Journal made of the ICC?

That the ICC's legitimacy has been questioned as it lacks independent enforcement mechanisms and is highly reliant on state cooperation to surrender criminals; there is tension between its mandate and reality.

What is the 'African bias' criticism of the ICC?

The ICC has been criticised for a high level of prosecutions of Black/African individuals, showing reluctance to investigate nationals of powerful states, though it has since issued warrants for Putin (Ukraine) and Netanyahu (Gaza).

What did The Conversation say about Ben Roberts-Smith and the ICC?

That the ICC 'is unlikely to prosecute alleged Australian war crimes', as Australia has not yet decided to prosecute or refuse to prosecute him.

What preceded the ICC for prosecuting war crimes/genocide?

Before 2002 and the Rome Statute, the UN used ad hoc (temporary) tribunals to prosecute war crimes, genocide and crimes against humanity.

What is the significance of the International Criminal Tribunal for Rwanda?

Set up ad hoc by the UN to prosecute the 1994 Rwandan genocide; convicted 61 people, including ICTR Prosecutor v Jean-Paul Akayesu, the world's first international genocide conviction, which made rape during war a war crime.

What is the significance of the International Criminal Tribunal for the former Yugoslavia?

Indicted 161 individuals with 90 convictions; Prosecutor v Slobodan Milosevic faced 66 counts but died before the trial concluded; Milan Babic was sentenced to 13 years; Praljak was prosecuted for blowing up a bridge and not stopping killings.

How does the AFP enforce law, and how do NSW police enforce criminal law?

The AFP enforces through the Commonwealth Criminal Code Act and Customs Act. NSW police enforce through the Summary Offences Act 1988, Crimes Act 1900, Firearms Act 1996, Crimes (Domestic & Personal Violence) Act 2007, Bail Act 2013, and LEPRA.

What prompted the creation of LEPRA?

Before 2002, police had been found to act beyond their power; the Wood Royal Commission revealed police needed a strict code of practice, instigating law reform.

List the main police powers under LEPRA.

Powers of entry; search and seizure (with/without warrant); use of reasonable force; collecting evidence including forensics; arrest and interrogation powers; recommending bail; use of tasers/sniffer dogs; court authority for phone taps/surveillance/DNA; strip searches on reasonable grounds.

How many calls per month does Crime Stoppers (NSW/AFP) receive?

Around 10,000 calls per month.

What statistics show crime remains under-reported?

Mission Australia reveals 85% of sexual assaults are not reported; BOCSAR shows domestic violence assaults are reported at only a 60% rate.