Legal Studies Notes - Crime (Core 1)

Legal Studies Core I (Crime)

Crime - NATURE OF CRIME

An act or omission against the community at large as well as the victim, that is punishable by the state.

• Lawmakers deem certain acts criminal → Crimes Act 1900 (NSW).

• A result of moral and ethical judgements by society.

• Constantly changing as society develops.

• Purpose of the law is to protect the community and impose sanctions on the offender.

Accused - NATURE OF CRIME

The person or alleged offender against whom criminal action is being taken - must be proven guilty beyond reasonable doubt.

Crown - NATURE OF CRIME

The state party that commences a criminal action in a court of law; the action is usually commenced by the Director of Public Prosecutions (NSW) or the Commonwealth Director of Public Prosecutions (Federal).

• Represents the interests of the community and seeks to prove the guilt of the accused.

Prosecute - NATURE OF CRIME

When the Crown or state takes action against an accused person in a court of law.

• Involves gathering evidence, presenting the case in court, and seeking a conviction. The prosecution must prove all elements of the crime beyond a reasonable doubt.

Beyond Reasonable Doubt - NATURE OF CRIME

The standard of proof required in a criminal case for a person to be found guilty. If there is any doubt as to the guilt of the defendant, a ‘not guilty’ verdict must be given.

Actus Reus - NATURE OF CRIME

'Guilty act' – the physical act of carrying out a crime.

• For example, in a theft case, the actus reus is the physical taking of someone else's property.

• Physical evidence and witness testimonies.

Mens Rea - NATURE OF CRIME

'Guilty mind' – the mental state of the accused, if they intended to commit the crime.

• Involves understanding the nature and consequences of one's actions - intended to commit it.

• intention

• recklessness

• criminal negligence

Intention - NATURE OF CRIME

A clear, malicious, or wilful intention to commit the crime – the highest and usually most difficult level of mens rea for the prosecution to prove.

• It implies that the accused specifically meant to commit the criminal act, such as planning a murder.

Recklessness - NATURE OF CRIME

An intermediate level of intent; when the accused was aware that their action could lead to a crime being committed but chose to take that course of action anyway.

• For instance, driving at high speed through a populated area despite knowing the potential for causing harm.

Criminal Negligence - NATURE OF CRIME

Where the accused fails to foresee the risk when they should have and so allows the avoidable danger to occur – the lowest level of intention for mens rea.

• An example is a doctor failing to provide adequate care, resulting in a patient's death.

Christopher Cassaniti Case 2019 - MENS REA

Cassaniti died at the scene of a workplace scaffolding collapse when he was 18.

• In 2022, the NSW District Court found Synergy Scaffolding Services had put workers in ‘significant peril’ such as removing building ties.

• The company was fined $2 million after a 10% reduction for the guilty plea.

• In October 2023, the NSW government announced it would be introducing industrial manslaughter laws in 2024 – relates to recklessness and criminal negligence.

Strict Liability Offence - NATURE OF CRIME

An offence where the mens rea does not need to be proved; only the actus reus.

• These offences typically involve minor regulatory matters, such as traffic violations or selling alcohol to a minor.

• Applied due to its administrative advantages - assists the legal system in coping with high volume of cases.

Causation - NATURE OF CRIME

The link between the behaviour of the accused and the result; that the behaviour of the accused actually caused the alleged criminal act.

Swan v The Queen (2020) - CAUSATION

The High Court found that in order for someone to be held legally responsible for a homicide, it must be proven beyond a reasonable doubt that the person’s actions were ‘a substantial or significant cause of the death.’

• The victim, Mr Kormilets died 8 months after his attack and after a fall in a nursing home due to medical complications he suffered as a result of the attack on him in his home.

• The accused could not have foreseen the fall, but the court ruled that the chain of causation had not been broken and found the accused guilty of homicide.

Categories of Crime - NATURE OF CRIME

• offences against the person (homicide, assault, sexual offences)

• offences against the sovereign (treason, sedition)

• economic offences (property, white-collar, computer)

• drug offences

• driving offences

• public order offences

• preliminary offences (conspiracy, attempt)

• regulatory offences

Homicide - CRIMES AGAINST THE PERSON

The unlawful killing of another person – both deliberate and accidental. Causation must be established between the actions of the accused and the death of the victim.

• Murder

• Manslaughter

• Infanticide

• Death by Reckless Driving

Murder - CRIMES AGAINST THE PERSON

The deliberate killing of a person.

• Murder requires malice aforethought, meaning the intention to kill or inflict grievous bodily harm.

• Punishable by life imprisonment.

• Murder Rate 2022: 3 per 100,000.

R v Milat 1996 - CRIMES AGAINST THE PERSON (MURDER)

ilat was found guilty of the murder of 7 backpackers between 1989 and 1992 and one offence of ‘detaining for advantage.’

• Bodies were found in Belanglo State Forest.

• Milat was sentenced to penal servitude for life for each murder offence, and six years for detaining for advantage.

Manslaughter - CRIMES AGAINST THE PERSON

The killing of a person in a manner that is considered to be less intentional than murder - maximum sentence of 25-years.

• Voluntary - with intent but there are mitigating circumstances such as provocation.

• Involuntary - death occurred because the accused acted in a reckless or negligent way, but without intention.

• Constructive - killing of a person while the accused was carrying out another dangerous or unlawful act.

Infanticide - CRIMES AGAINST THE PERSON

The death of a baby under the age of 12 months at the hands of its mother.

• This offence acknowledges the potential for postpartum depression or disturbance of the mind - can be seen as a mitigating circumstance (R v Vaughn).

Death by Reckless Driving - CRIMES AGAINST THE PERSON

When a person drives in an unsafe and reckless way, such as under the influence of alcohol or a drug, or at excessive speed, and in so doing causes the death of another person.

• Maximum penalty of 10 years imprisonment.

• R v Bonsu 2009 - killed a pedestrian who had a green light, 10 months imprisonment.

Assault - CRIMES AGAINST THE PERSON

A criminal offence involving the infliction of physical force or the threat of physical force (common assault) – there are some exclusions such as engaging in sport (boxing) and acting in self- defence.

• Physical Assault - punishable by up to 5 years’ imprisonment.

• Threat to cause harm can also be a form of assault where it causes immediate fear.

Aggravated Assault - CRIMES AGAINST THE PERSON

Assault but with heavier penalties due to its seriousness, e.g., weapon, intention, threatened with HIV injection, etc.

• Aggravated assault involves circumstances that increase the severity of the offence and thus the penalties.

Sexual Assault - CRIMES AGAINST THE PERSON

Sexual contact or behaviour that occurs without explicit consent of the victim or when consent has been withdrawn.

• Consent must be freely and voluntarily given.

• One of the most under-reported crimes.

Aggravated Sexual Assault - CRIMES AGAINST THE PERSON

When there are aggravating circumstances, such as where violence is used, the victim is under 16 years of age (statutory rape), or the victim has a serious physical or intellectual disability.

• These factors increase the seriousness of the offence and the resulting penalties - up to 20 years’ imprisonment.

Indecent Assault - CRIMES AGAINST THE PERSON

An assault and ‘act of indecency’ on or in the presence of another person without their consent.

• This offence involves actions that violate community standards of decency and are carried out without consent - up to 5 years’ imprisonment.

Aggravated Sexual Assault in Company - CRIMES AGAINST THE PERSON

Sexual assault performed with another person or people present together with aggravating circumstances.

• The presence of multiple offenders and aggravating factors increase the trauma and severity of the offence.

• Up to life imprisonment.

R v Skaf - serial gang rapist who led groups of Australian Muslim men to commit gang rape attacks against women and girls in 2000.

• 31-year prison sentence with a non-parole period of 28 years.

Treason - OFFENCES AGAINST THE SOVEREIGN

An attempt to manifest intention or levy war against the state, assist the enemy, or cause harm to or the death of a head of state.

• Breach of allegiance.

• Considered one of the most serious offences against a state - up to 25 years’ imprisonment.

• Crimes Act 1900 (NSW), Criminal Code Act 1995 (Cth), Anti-Terrorism Act 2004 (Cth)

Sedition - OFFENCES AGAINST THE SOVEREIGN

Promoting discontent, hatred or contempt against a government; in Australia, sedition includes the offences of urging force or violence against the government.

• Aims to undermine the authority and stability of the government.

• Conflicts with the right to freedom of speech.

• Criminal Code Act 1995 (Cth)

Economic Offences - CATEGORIES OF CRIME

A wide range of crimes that can result in a person losing property or sums of money.

• crimes against property

• white-collar crimes

• computer offences

Larceny - CRIMES AGAINST PROPERTY

When one or more people intentionally take another person’s property without consent and without intention of returning it.

• Theft or stealing - up to 5 years’ imprisonment.

• Requires the intent to permanently deprive the owner of their property.

R v Potsick - a bank mistakenly gave Potsick $1000 extra after a currency exchange – he was found not guilty as the mistake was not induced by him despite being dishonest, and he eventually gave it back.

Break and Enter - CRIMES AGAINST PROPERTY

Forced entry into a building with intent to commit an offence, commonly known as ‘burglary’.

• It involves violating the security of a premises and intending to commit a further crime inside.

• Crimes Act 1900 (NSW)

Robbery - CRIMES AGAINST PROPERTY

When property is taken directly from a victim, usually forcefully.

• Robbery involves both theft and the use or threat of force, making it a more serious offence than larceny.

• Use of a weapon - ‘armed robbery.’

White Collar Crime - ECONOMIC OFFENCES

A general term given to various non-violent crimes associated with businesspeople or professionals – often difficult to detect and can be time-consuming and expensive to investigate.

• fraud

• embezzlement

• insider trading

• tax evasion

Embezzlement - WHITE-COLLAR CRIMES

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

• Occurs when an employee steals money from their employers - often in small amounts.

• Can be difficult to recover as it may be untraceable.

Tax Evasion - WHITE-COLLAR CRIMES

An attempt to avoid paying the full amount of taxes due by concealing or underestimating a person’s or business income or assets.

• Often involves fraudulent tax returns.

• Income Tax Assessment Act 1997 (Cth)

Insider Trading - WHITE-COLLAR CRIMES

When a person illegally trades on the share market to their own advantage using confidential information.

• When a person obtains confidential information about a company that will affect the company’s share price - creates unfair advantage.

R v Rivkin (2003) - found guilty of insider training, for having purchased 50,000 shares in Qantas in April 2001. He had been told confidential information of an impending merger between Qantas and Impulse. He was sentenced to nine months of periodic weekend detention and lost his stockbroker licence.

Fraud - WHITE-COLLAR CRIMES

Deceitful or dishonest conduct carried out for personal gain.

• Identity theft, internet phishing, requesting funds or account details by email under fraudulent pretences.

• E.g, Nigerian Email Scams

Computer Offences - WHITE-COLLAR CRIMES

Various crimes related to hacking and unauthorised access or modification of data – money laundering, identity theft, computer scams, cat-fishing.

• Crimes Act 1900 (NSW) - computer offences

• Copyright Act 1968 (Cth) - downloading music and movies

Ashley Madison (2015) – hackers broke into the systems of Ashley Madison, an online dating service for people already married. The hackers make all private customer data available online in August 2015.

Drug Offences - CATEGORIES OF CRIME

Acts involving prohibited or restricted drugs - possession, use, cultivation, supply and distribution, importation.

• Drug Misuse and Trafficking Act 1985 (NSW)

• Summary Offences Act 1988 (NSW)

• Customs Act 1901 (Cth)

Possession - DRUG OFFENCES

The drugs must be in the accused’s custody or control, and the accused must know about it.

Use - DRUG OFFENCES

The intentional consumption of the drug by any means – excludes use in a medically supervised injecting centre.

Cultivation - DRUG OFFENCES

Applies to the growth or cultivation of a prohibited plant such as cannabis.

Supply and Distribution - DRUG OFFENCES

A broad offence including offering or agreeing to supply, whether or not the actual drug or money really changed hands.

• It can also include having drugs in your possession for the purpose of supply, and single or multiple instances of supply.

Importation - DRUG OFFENCES

It is an offence to import or export a marketable quantity of a border- controlled drug or a border-controlled plant - max 25 years’ imprisonment.

Driving Offences - CATEGORIES OF CRIME

A broad range of traffic offences related to driving or controlling a motor vehicle.

• Road Transport Act (Safety and Traffic Management) Act 1999 (NSW) + Crimes Act 1900 (NSW)

• Generally relate to strict liability offences.

• On-the-spot fines, demerit points, cancellation/suspension of license, imprisonment.

Public Order Offences - CATEGORIES OF CRIME

Acts that are deemed to disturb the public order in some way such as a disturbance in or in sight of a public area.

• Summary Offences Act 1988 (NSW) + Crimes Act 1900 (NSW)

• Occur a fine or other lesser penalty.

• obscene or indecent behaviour, possessing weapons in public, obstructing traffic, damaging public property, affray, rioting, offensive language, etc.

Preliminary Offences - CATEGORIES OF CRIME

Offences that precede the commission of a crime or where the crime has not been completed for some reason.

• conspiracy

• attempt

Conspiracy - PRELIMINARY OFFENCES

When two or more people plot to commit a crime together.

• Complete where an agreement is reached between parties, with intention shown by each person.

• Can be difficult to prove without a confession or record.

Attempt - PRELIMINARY OFFENCES

An offence where a principal crime was attempted but failed or was prevented for some reason despite the intention to complete it.

• Punishable by the same penalty as if the crime had taken place - Section 344A of the Crimes Act 1900 (NSW).

R v Whybrow (1951) - a husband connected electricity to the soap dish in the family bath to execute his wife, however his plan did not work as she only received a shock. He was still found guilty of attempted murder because his intention to cause death was clear.

Regulatory Offences - CATEGORIES OF CRIME

Usually set out in delegated legislation and carry lower penalties – cover day- to-day situations.

• Considered more minor offences.

• Require faster or more frequent change than parliamentary legislation processes allow.

• Strict liability offences.

• Breaching water restrictions, ignoring fire restrictions, environmental offences, public transport offences, etc.

Summary Offence

A less severe offence that is heard and sentenced by a magistrate in a Local Court.

• Summary Offences Act 1988 (NSW), Road and Transport Act 2013 (NSW), Graffiti Control Act 2008 (NSW)

• Examples include petty theft, traffic offences, and offensive behaviour.

• Penalties range from a bond or fine to up to 2 years imprisonment.

• Police Prosecution

Indictable Offence

A more severe offence that is heard and sentenced by a judge in a District Court or tried before a judge and jury.

• Crimes Act 1900 (NSW)

• Examples include murder, rape, and armed robbery. Indictable offences carry significant penalties, including imprisonment.

• Requires an initial committal hearing in the Local Court.

• Director of Public Prosecutions

Principal in the First Degree - PARTIES TO A CRIME

The person committing the main criminal act, e.g., the person holding the gun in a bank robbery.

• This individual is directly responsible for the commission of the crime.

Principal in the Second Degree - PARTIES TO A CRIME

A person present at the scene who assists or encourages the principal offender but is not a main participant, e.g., drove the getaway car, kept a lookout by the door.

• They are also held criminally liable for their involvement and generally given the same sentence as the perpetrator.

Accessory Before the Fact - PARTIES TO A CRIME

A person who helps plan or prepare for the crime before the main act, e.g., stole the bank plans.

• They are liable as if they were a principal offender.

Accessory After the Fact - PARTIES TO A CRIME

A person who assists the principal after the crime has been committed, e.g., helps hide the offenders from the police, disposes of evidence.

• They are liable for a lesser penalty than the principal offender.

R v Stanford, Marcus (2016) - PARTIES TO A CRIME

Vincent Stanford sexually assaulted school teacher Stephanie Scott before stabbing her to death.

• Vincent sent his twin brother, Marcus an envelope to keep safe containing Ms Scott’s drivers’ licence and jewellery. Marcus sold 2 rings at Adelaide Exchange Jewellers on the instructions of his brother and burnt the victim’s licence.

• Vincent was found guilty of the sexual assault and murder of Stephanie Scott and was sentenced to life imprisonment.

• Marcus was found guilty of being an accessory after the fact and sentenced to 1 year and 3 months imprisonment.

Factors Affecting Criminal Behaviour

Self-Interest - society has become increasingly materialistic and consumer-driven due to GREED.

Economic Factors - people from disadvantaged backgrounds are more likely to commit crimes, some offenders may view criminals acts resulting in financial benefit as necessary (robbery).

Social Factors - the environment a person has been raised could influence their behaviours (abuse/trauma).

Psychological Factors - mental illness can affect a person’s behaviour and is considered in sentencing.

Political Factors - politically motivated criminal activity, public order offences (riots), terrorism-related offences.

Genetic Theories - no genetic studies have been concussive in showing that certain genes are more closely linked with crime, but some disorders that have a genetic predisposition can increase criminal behaviours (poor impulse control).

Crime Prevention - SITUATIONAL AND SOCIAL

Situational: aims to make it more difficult for criminals to commit a crime or remove the reward.

• Increase Risk of Detection - warning signs, alarms, CCTV

• Make Crime More Difficult - barriers, locks, firewalls

• Reduce Rewards - dye tags, property ID

Social: aims to address the wider socio-economic factors that contribute to criminal activity.

• Factors that Lead to Crime - poor parenting and environment, drug addiction

• Initiatives that Prevent Crime - reduce disadvantage, targeted youth programs, parenting workshops

The Criminal Investigation Process

• police powers

• reporting crime

• investigating crime

• arrest and charge, summons, warrants,

• bail and remand

• detention and interrogation, rights of suspects

Police Powers - CRIMINAL INVESTIGATION PROCESS

Part of the executive art of government - regulated by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW):

• Investigate Crimes - examine facts surrounding an alleged incident

• Make Arrests - must have a warrant or reasonable suspicion to seize a person and take them into custody

• Interrogate Suspects - formally question a suspect in relation to an alleged crime

• Present Evidence - used to support facts in a legal investigation or admissible in court

• Search and Seizure - power to search a person and their possessions

Reporting Crime - CRIMINAL INVESTIGATION PROCESS

Usually reported by a person who has knowledge of the crime or someone who has witnessed the crime.

• Crime Stoppers and Neighbourhood Watch encourage the reporting of criminal activity - allows individuals to anomalously share info about unsolved crimes but lacks enforceability.

• Media plays a significant role in raising awareness about crime, e.g., A Current Affair.

• People may be reluctant, unable or unwilling to report crimes, and may be fearful of the consequences.

Investigating Crime - CRIMINAL INVESTIGATION PROCESS

1. establishing a crime has been committed

2. finding the offender

3. gathering evidence to prove case against offender in court

Gathering Evidence - CRIMINAL INVESTIGATION PROCESS

Information used to support facts in a legal investigation or admissible as testimony in court – used to support a charge later in court.

• Evidence Act 1995 (NSW) governs the admissibility of evidence in court.

• Must be sufficiently relevant to the case and be the best possible available to secure a conviction in court.

• Evidence can include witness testimony, documents, physical objects, forensic analysis, DNA, surveillance.

Use of Technology - CRIMINAL INVESTIGATION PROCESS

DNA Evidence: can be used to link a suspect with a crime scene or criminal offence, or to clear a suspect.

• Person must consent to blood or mouth swabs being taken unless an officer has been granted a court order.

• Crimes (Forensic Procedures) Act 2000

Surveillance: recording video and audio footage using digital methods for easy storying and copying.

• Surveillance Device Act 2007 (NSW)

Cyber Crime Units: able to locate criminals through internet activity

• E.g.,computer hacking and internet scams.

Search and Seizure - CRIMINAL INVESTIGATION PROCESS

The power to' ‘search people and seize and detain things’ - Part 4 of LEPRA.

• Controversial - intrudes privacy, can be confronting or embarrassing, especially in public.

• Police can search a person’s body, bag, clothes, etc.

• Police can ‘pat down’ suspect to feel for concealed items.

• Must have reasonable grounds to believe the person has committed a crime.

Arrest, Charge, Summons, Warrants - CRIMINAL INVESTIGATION PROCESS

Warrant: a legal document issued by a magistrate or judge that authorises a police officer to perform a particular act.

Arrest: to seize someone by legal authority and take them into custody on reasonable grounds.

Charge: to formally accuse someone of something under the law - person will either be released or brought before a magistrate as soon as practicable.

Summons: legal document that states when and where a person must appear in court and the charge in which they must answer.

Bail - CRIMINAL INVESTIGATION PROCESS

The conditional release of an accused person awaiting trial.

• Granted subject to conditions that aim to ensure the accused's appearance in court and protect the community, e.g., lodgement of money, ankle-monitoring, surrender passport.

• Bail Act 2013 (NSW) - ‘unacceptable risk’ test

Jill Meagher Case 2012: Adrian Bayley was on bail when he murdered Meagher in 2011 - influenced bail reforms in NSW.

Remand - CRIMINAL INVESTIGATION PROCESS

A period spent in custody awaiting trial – opposite of bail.

• Remand is ordered when there are concerns that the accused may flee, commit further offences, or interfere with witnesses.

• If found guilty, the time the offender has spent in remand is usually taken off the total sentence time.

Detention - CRIMINAL INVESTIGATION PROCESS

The lawful conditions under which a suspect can be detained for questioning and for the purpose of further investigation is set out under LEPRA.

• 6 hours (s.115) (or up to 12 if granted by a magistrate)

• At the end of the detention period, the suspect is either charged or released unconditionally.

• Terrorism Police Powers Act 2002 (NSW) - police can detain a person for a max of 14 days if they reasonably believe they will otherwise engage in a terrorist act.

Interrogation - CRIMINAL INVESTIGATION PROCESS

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

• May be informal, where the officer writes notes by hand, or formal, where video and audio recordings are provided.

• Recordings ensure all guidelines are adhered to and can be used in court.

Rights of Suspects - CRIMINAL INVESTIGATION PROCESS

Caution: a statement issued by police to a suspect when they are detained to inform the suspect of their rights.

• right to silence (ICCPR s14)

• right to be advised why they have been arrested

• right to have a responsible adult present (minors)

• right to be informed about the 6-hour detention limit

• right to contact a friend, lawyer, family member

Criminal Trial Process

• court jurisdiction

• adversary system

• legal personnel: magistrate, judge, police prosecutor, Director of Public Prosecution, Public Defenders

• pleas, charge negotiation

• legal representation, including legal aid

• burden and standard of proof

• use of evidence, including witnesses

• defences to criminal charges: complete defences, partial defences to murder

• the role of juries, including verdicts

Court Hierarchy - CRIMINAL TRIAL PROCESS

The system of courts within a jurisdiction that creates opportunities for appeals to protect procedural fairness, individual rights, and rule of law.

• High Court of Australia - commonwealth matters, appeals, interpretation of the Constitution, seven judges

• NSW Court of Criminal Appeal - appeal guilty convictions, three judges

• NSW Supreme Court - serious indictable offences, no monetary limit on civil cases, judge and jury

• District Court - indictable offences, civil cases between $100,000 and $750,000, judge and jury

• Local Court - summary matters, civil cases up to $100,000, committal hearings, magistrate

• Children’s Court - criminal cases involving minors, and cases concerning the care and protection of children

• Coroner’s Court - investigate unexplained or suspicious deaths, fires and explosions

Original Jurisdiction - CRIMINAL TRIAL PROCESS

The authority for a court to hear a matter for the first time.

Appellate Jurisdiction - CRIMINAL TRIAL PROCESS

The authority for a court to review matters on appeal from another court.

R v Lazarus (2017) - COURT JURISDICTION

Luke Lazarus was accused of raping Saxon Mullins in an alleyway behind the Soho Nightclub.

• He was initially convicted to imprisonment for 5 years, with a non-parole period of 3 years by the District Court.

• The case was appealed in the NSW Court of Criminal Appeal who granted Lazarus bail with a $50,000 surety. It was appealed on the basis that Judge Sarah Huggett misdirected the jury before they retired to consider the verdict on the issue of whether Lazarus believed the woman had consented or not.

• The case was acquitted as Lazarus believed Mullins had given consent.

Committal Proceeding - CRIMINAL TRIAL PROCESS

Proceedings in which a magistrate determines if there is enough evidence for a case to proceed to trial in a higher court (prima facie).

Adversary System - CRIMINAL TRIAL PROCESS

A system of law where two opposing sides present their cases to an impartial judge or jury.

• ADVANTAGES: can be fairer as both parties have an equal opportunity to present their case, cases are carefully prepared, jury represent judgement by one’s peers.

• DISADVANTAGES: competing sides are not always equal before the law, e.g., knowledge, can be a lack of general understanding by the jury.

Legal Personnel - CRIMINAL TRIAL PROCESS

Magistrate: judicial officers who preside over Local Court hearings.

• Oversee proceedings and make a determination based on evidence, including passing the sentence.

• Conduct committal proceedings.

Judge: judicial officers who preside over the District and Supreme Court.

• Oversee proceedings, maintain order, ensure court procedures are followed.

• Hands down the sentence and ruling.

Police Prosecutor: NSW police officer trained in prosecution, particularly summary offences.

• Undergo intensive investigation of a matter and father all evidence that will be used in trial to form a case.

Director of Public Prosecution: prosecutes indictable offences and some summary offences - independent authority.

• Reviews cases proposed by police to determine if there is enough evidence to succeed.

Public Defenders: the public barrister who can appear for an accused in a serious criminal matter.

• Independent of the government.

• Provide advice on a range of matters including the charge.

Plea - CRIMINAL TRIAL PROCESS

A formal statement of guilt or innocence entered into by the accused.

• Guilty Plea: dealt with quickly going straight to a sentencing hearing.

• Not Guilty Plea: date is set for trial and the accused is held in remand or granted bail.

Charge Negotiation - CRIMINAL TRIAL PROCESS

An agreement between the Director of Public Prosecutions and the accused that involves the acceptance of a guilty plea, usually in exchange for something else (‘case conferencing’)

• Multiple Charges - serious charges are dropped for a guilty plea for less serious charges.

• Single Charge - accused accepts a sentence from the DPP rather than going to trial.

Results in a faster and less expensive case for the prosecution, accused and court but can lead to a lack of justice.

Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) - offers up to 25% reduction on sentences.

Legal Representation, Legal Aid - CRIMINAL TRIAL PROCESS

Legal Aid: provides legal assistance to people who are socially and economically disadvantaged to ensure that they have equitable access to the law.

• Legal Aid Commission Act 1979 (NSW) - provides free brief legal sessions for those who meet the means, merit, and jurisdiction test.

• A trial will rarely be fair for an accused if they do not have adequate legal representation - ACCESS is crucial.

• Self-representation is NOT advised due to complexities of court processes.

• Dietrich v The Queen (1992) - precedent for legal representation.

Burden of Proof - CRIMINAL TRIAL PROCESS

Also known as the onus, it is on the prosecution -- they must prove the case against the accused.

• The burden of proof rests with the prosecution because the accused is presumed innocent until proven guilty.

Standard of Proof - CRIMINAL TRIAL PROCESS

The prosecution must be able to prove the case beyond reasonable doubt to succeed.

• This high standard protects the presumption of innocence and ensures that convictions are based on solid evidence.

Use of Evidence, Including Witnesses - CRIMINAL TRIAL PROCESS

Use of evidence is bound by the Evidence Act 1995 (NSW) - evidence illegally obtained is generally inadmissible.

• Physical Evidence - photos, fingerprints, DNA, weapons.

• Documentary Evidence - documents, interviews.

• Witness Evidence - an individual who saw, knows about or is connected to the crime - may be subpoenaed to appear in court.

Expert Witness: a person who has studied some element of evidence as an independent expert during the investigation.

• Can provide insights other witnesses cannot.

Complete Defences to Criminal Charges - CRIMINAL TRIAL PROCESS

Mental Health or Cognitive Impairment: meaning the accused cannot have formed the mens rea at the time of the offence.

• May be found as ‘not criminally responsible.’

Involuntary Behaviour or Automatism: act that cannot be controlled, such as an epileptic fit.

• Mens rea cannot be established for an involuntary act.

Mistake: defendant acted under an honest and reasonable mistake and could not have formed mens rea.

• Not generally a defence and difficult to prove.

Self-Defence or Necessity: defendant acted in defence of self, another or property.

• Accused admits to committing the act - jury either acquits them or finds them guilty.

Duress: coercion or pressure used by one party to influence another.

• Accused must prove they acted against their own free will.

Consent: accused can show the victim freely consented to the criminal act.

• Most often used in sexual assault cases.

Partial Defences to Murder - CRIMINAL TRIAL PROCESS

Provocation: defendant claims their actions were a direct result of another person’s actions which caused them to lose control.

• Can only be used when attempting to have a murder charge reduced to manslaughter in NSW.

• Can no longer be used by people who have killed their partners out of jealous rage.

Substantial Impairment Because of Mental Health or Cognitive Impairment: when the accused is suffering from mental or cognitive impairment causing them to act in a certain manner.

• Diminished responsibility - murder to manslaughter.

Role of Juries - CRIMINAL TRIAL PROCESS

Reflect the right of an accused person to be judged impartially, be a group of their peers, based on evidence presented at trial (Jury Act 1997 (NSW):

• Australian citizens 18+ are ELIGIBLE once on the electoral role. Failure to attend can result in a $1100 fine.

• People aged 65+, pregnant, care for children full-time, enrolled students, sole traders are EXEMPT.

• People who don’t speak English, emergency service workers, people with a disability, convicted criminals, and legal professionals are INELIGIBLE.

• Peremptory Challenges: legal team rejects a juror without needing to provide a specific reason.

• Challenge for Cause: legal team rejects a juror because they believe they will be prejudiced.

• Sworn in, listen to evidence presented, come to a verdict as to the accused’s guilt or innocence.

• Jury Amendment (Verdicts) Act 2006 (NSW) allows majority verdicts of 11/12 or 10/11 after a reasonable period of deliberation.

Sentencing and Punishment

• statutory and judicial guidelines

• the purposes of punishment: deterrence (specific and general), retribution, rehabilitation, incapacitation

• factors affecting a sentencing decision: aggravating and mitigating circumstances

• the role of the victim in sentencing

• appeals

• types of penalties: no conviction recorded, caution, fine, bond, suspended sentence, probation, criminal infringement notice, penalty units, community service order, home detention, periodic detention, forfeiture of assets, imprisonment, diversionary programs

• alternative methods of sentencing including circle sentencing, restorative justice

• post-sentencing considerations, including security classification, protective custody, parole, preventative detention, continued detention, sexual offenders registration, deportation

Statutory and Judicial Guidelines - SENTENCING AND PUNISHMENT

Statutory: Acts of Parliament and legislation that has been passed.

• Crimes (Sentencing Procedure) Act 1999 (NSW) - purpose is to reduce inconsistencies in sentencing, e.g., maximum penalties, mandatory sentencing (One Punch Laws)

• Intensive Correction Orders, Community Correction Orders, Conditional Release Orders - amended home detention orders, good behaviour bonds, and non-conviction bonds.

Judicial: guidelines using precedents that are set by judges in the NSW Criminal Court of Appeal.

• Judicial Discretion - power of a judge or magistrate to make a decision as guided by precedents.

Purpose of Punishment - SENTENCING AND PUNISHMENT

Deterrence: something that discourages or is intended to discourage someone from doing something - e.g., a higher sentence.

• Specific: punishment against an individual offender aiming to deter them from committing crime in the future.

• General: punishment attempting to make an example of an offender to send a message to the rest of the community.

Retribution: punishment considered to be morally right or deserved because of the nature of the crime.

• Related to the concept of revenge.

Rehabilitation: an objective of sentencing designed to reform the offender so that they do not commit offences in the future.

• Attempts to alter the views and behaviour of the offender to prevent recidivism.

Incapacitation: making an offender incapable of committing further offences by restricting their freedom.

• Aimed at protecting the community and the offender themself, e.g., imprisonment, licence cancellation.

Factors Affecting a Decision - SENTENCING AND PUNISHMENT

Aggravating Circumstances: make the offence more serious and can lead to an increased sentence.

• violence, cruelty, weapons, injury, harm, damage, motivations of hatred or prejudice, if victim was vulnerable or targeted for their occupation, prior convictions

Mitigating Circumstances: make the offence less severe and can lead to a reduced sentence.

• good character reference, no prior convictions, offender is young or inexperienced, assisted police, honest remorse, prospects of rehabilitation, offender was provoked

Role of Victim in Sentencing - SENTENCING AND PUNISHMENT

The person directly harmed, as well as those affected indirectly.

• Victim Rights Act 1996 + Victim Rights and Support Act 2013

Victim Impact Statement: a voluntary written statement created by the victim, discussing the impacts that the crime has had on them (s.28 of Crimes (Sentencing Procedures) Act 1999)

• Gives the victim the opportunity to be heard if offender is found guilty - reports, diagrams, pictures.

• Family can provide a statement, particularly if the victim is deceased.

Appeals - SENTENCING AND PUNISHMENT

Application to a higher court for review of one or more decisions made in a lower court → can be based on errors of law, errors of fact, or excessive sentences.

• Appeal Against Conviction: appellant argued they did not commit the offence of which they were found guilty - usually involves an argument that there was some error in the handling and prosecution of the case.

• Sentence Appeal: appeals by the offender against the severity of their sentence, or by the prosecution against the leniency of the sentence.

Types of Penalties - SENTENCING AND PUNISHMENT

• no conviction recorded

• caution

• fine/penalty units

• bond

• suspended sentence

• probation

• criminal infringement notice

• community service order

• home detention

• periodic detention

• forfeiture of assets

• imprisonment

• diversionary programs

No Conviction Recorded - SENTENCING AND PUNISHMENT

The court finds someone guilty but doesn’t record a conviction.

Caution - SENTENCING AND PUNISHMENT

A formal warning without charge issued by police for less serious offences - way to avoid the court system.

• Young Offenders Act 1997 (NSW) - police can issue a caution to offenders aged 10-18 for minor offences

Fine/Penalty Unit - SENTENCING AND PUNISHMENT

Fine: a monetary penalty imposed for infringement of law.

Penalty Unit: a specific unit of money used in legislation to describe the fine that needs to be paid.