Legal Studies Notes - Crime (Core 1)

Legal Studies Core I (Crime)

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

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

Crown

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

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

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

'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

'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

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

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

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

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

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

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)

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

• 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

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

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

Milat 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

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.

DPP v Newbury and Jones 1977

Accused deliberately dropped a slab of concrete from a bridge which hit and killed a train guard.

• The accused was charged with involuntary manslaughter because there was no intention to harm.

Infanticide

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 - DRUGS

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

Use - DRUGS

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

Cultivation - DRUGS

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

Supply and Distribution - DRUGS

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 - DRUGS

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

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

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

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

• conspiracy

• attempt

Conspiracy

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

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

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

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

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

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

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)

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).

R v Johnson (2019)

Mr Johnson believed he was being stalked by Mr Campbell and Mr Morrison so he followed them and accused Mr Morrison of conspiring against him.

• Mr Johnson fatally stabbed Mr Morrison and punched Mr Campbell - Mr Johnson was sentenced to 10 months imprisonment for common assault, and 26 years for murder.

• His history of offending had been partly a result his deprived childhood - he is an Aboriginal man who was exposed to alcohol abuse, extreme violence and neglect. He was abandoned and placed into foster care and began to use drugs and alcohol at age 13.

Crime Prevention

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

Part of the executive art of government - regulated by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and the Australian Federal Police Act 1979 (Cth):

• Investigate Crimes - examine facts surrounding an alleged incident

• Make Arrests - must have a warrant (LEPRA s.21)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

NSW Police must follow the STANDARDS OF PROFESSIONAL CONDUCT - complaints can be made to the Police Integrity Commission and NSW Ombudsman.

Robert Curti Case 2012

21-year-old Roberto Curti died in 2012 after being tasered 14 times - 7 times in 51 seconds.

• He jumped the counter of a convenience store and stole some biscuits - the operator mistook the 000 call as an armed robbery.

• 4 police were charged - two with common assault, and two with assault occasioning actual bodily harm - ONLY ONE WAS FOUND GUILTY.

• Breach of LEPRA S.18 - ‘reasonable force.’

Reporting Crime

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 and resource efficiency.

• 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

1. establishing a crime has been committed

2. finding the offender

3. gathering evidence to prove case against offender in court

Gathering Evidence

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 - CANNOT be compromised, contaminated, or illegally obtained.

• 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.

R v Wood (2012)

Wood was suspected of pushing girlfriend Caroline Byrne off a cliff in Watson’s Bay - he was jailed for 17 years for murder in 2008.

• He was acquitted in 2023 by the Court of Criminal Appeal as they found there was insufficient evidence to provide reasonable doubt he killed Ms Byrne.

• The defence prepared expert evidence about the position Ms Byrne’s body was found in at the base of the Gap - claiming it was not possible she was pushed.

Use of Technology

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

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 or obtain a warrant (S.21).

Strip Searching Investigation

Complaints were made by a number of young women who were strip searched at music festivals in 2018 and 2019.

• LEPRA S.31 and s.32.

• The Law Enforcement Conduct Commission found that a suspicion that someone is concealing drugs in body cavities is NOT enough to justify a strip search.

• More than 4400 strip searches were carried out between July 2020 and June 2022 - at least 100 were children.

Arrest, Charge, Summons, Warrants

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

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

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

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)

• Rest periods may not be included in the total time.

• Accused is held in a cell or interview room.

• 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

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

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

R v FE (2013)

15-year-old FE was involved in an argument with Patrick Cowe before he was fatally stabbed.

• She presented herself to police and was placed in an office where was led to believe she could not leave.

• FE was not cautioned and gave an interview that formed part of the Crown’s case against her.

• She was later arrested, and the police selected her mother as her support person without consulting her. She indicated she did not wish to be interviewed, but was told she had to.

• She was charged with affray and murder however both interviews were deemed inadmissible by the Supreme Court as the accused did not understand her rights.

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

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

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

Appellate Jurisdiction

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

R v Lazarus (2017)

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

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

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

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

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

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

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

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

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

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, must take an oath.

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

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.

DPP v Zecevic (1987)

It was held that the defendant must have reasonable grounds to believe their life was threatened and they must only use ‘proportional and reasonable force’ to defend themselves.

Partial Defences to Murder

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.

R v Singh (2012)

Singh killed his wife after an argument where he lost his self control - he used the defence of provocation as his wife told him she had never loved him, was in loved with someone else, and threatened to have him deported.

• He was convicted of manslaughter and sentenced to a non-parole period of 6 years.

Role of Juries

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.

Advantages and Disadvantages of Juries

ADVANTAGES: more reliable than a single judge, community is confident the system is operating fairly, current community standards are applied, protects individuals from abuses of state powers.

DISADVANTAGES: may not look at facts objectively, may not understand court proceedings, can be easily swayed, expensive, time-consuming, jury duty is an imposition, may be influenced by media.

R v Holmes (2006)

Mr Hadden was king hit and killed by Mr Holmes who was charged with murder but pled guilty to manslaughter.

• The jury was dissolved because one of the jurors had a previous connection to the accused’s mother.

• The final deliberation took over 18 hours and resulted in a hung jury → led to the Jury Amendment (Verdict) Act 2006 and a manslaughter charge.