Legal Studies Notes - Core I (Crime)

Legal Studies Core I (Crime) lecture notes.

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

Deceitful or dishonest conduct carried out for personal gain.

• Identity theft, internet phishing, fraudulent pretences.

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.

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.

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. Examples include petty theft, traffic offences, and offensive behaviour. The penalties for summary offences are generally less severe than for indictable offences.

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

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.

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.

Criminology

The scientific study of crime and criminal behaviour. Criminology seeks to understand the causes of crime, the patterns of criminal behaviour, and the effectiveness of crime prevention strategies.

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 can include witness testimony, documents, physical objects, and forensic analysis. The Evidence Act 1995 (NSW) governs the admissibility of evidence in court.

Warrant

A legal document issued by a magistrate or judge that authorises a police officer to perform a particular act, e.g., make an arrest. Warrants are required to protect individual rights and prevent abuse of power.

Charge (Legal)

Formally accuse someone of something, especially an offence under law. The charge specifies the crime the accused is alleged to have committed.

Summons

A legal document that states when and where a person must appear in court and the charge in which they must answer (court attendance notice). Failure to comply with a summons can result in penalties.

Bail

The conditional release of an accused person awaiting trial. Bail is granted subject to conditions that aim to ensure the accused's appearance in court and protect the community. The Bail Act 2013 (NSW) governs the granting of bail.

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.

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. Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Interrogation

The act or process of questioning a suspect carried out by the investigating officers. Interrogation must be conducted in accordance with legal safeguards to protect the rights of the suspect.

Caution (Legal)

A statement issued by police to a suspect when they are detained to inform the suspect of their rights e.g., why they have bee arrest, be informed about the g- hour investigation period, and that they can contact a friend, lawyer, etc. The caution ensures that the suspect is aware of their legal rights and protections.

Original Jurisdiction

The authority for a court to hear a matter for the first time. The Local Court typically has original jurisdiction for summary offences, while the Supreme Court has original jurisdiction for the most serious indictable offences.

Appellate Jurisdiction

The authority for a court to review matters on appeal from another court. The Supreme Court has appellate jurisdiction over decisions of the District Court, while the High Court has appellate jurisdiction over decisions of the Supreme Court.

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). Committal proceedings protect individuals from being subjected to unnecessary trials.

Adversary System

A system of law where two opposing sides present their cases to an impartial judge or jury. The adversarial system aims to ensure a fair trial through the presentation of competing arguments and evidence.

Plea

A formal statement of guilt or innocence entered into by the accused. The plea is a critical step in the criminal justice process, as it determines whether the case will proceed to trial.

Charge Negotiation

An agreement between the Director of Public Prosecutions and the accused that involve the acceptance of a guilty plea, usually in exchange for something else. Charge negotiation can result in a reduced sentence or the dropping of more serious charges.

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 ensures that everyone has the opportunity to be represented, regardless of their financial situation.

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.

Victim Impact Statement

A voluntary written statement created by the victim, discussing the impacts that the crime has had on them. Victim impact statements allow victims to have their voices heard in the sentencing process and provide a sense of closure.

Appeal

Application to a higher court for review of one or more decisions made in a lower court. Appeals can be based on errors of law, errors of fact, or excessive sentences. The right to appeal ensures that legal errors can be corrected.

Fine

A monetary penalty imposed for infringement of law. Fines are typically used for less serious offences and are intended to deter future violations.

Bond (Legal)

A legally binding contract where an offender agrees to perform a specific act, often involving a promise to be on good behavior for a set period, and failure to do so can result in a penalty, like a fine or imprisonment. Bonds are used as an alternative to imprisonment and aim to rehabilitate offenders.

Imprisonment

The most severe sentence that can be imposed, considered a sentence of last resort. Imprisonment involves depriving an offender of their liberty and detaining them in a correctional facility.

Deterrence

Something that discourages or is intended to discourage someone from doing something, relates to passing a higher sentence in the hope that fear of punishment might help prevent future offences. Deterrence aims to reduce crime rates by discouraging both the offender and others from committing similar offences.

Retribution

Punishment considered to be morally right or deserved because of the nature of the crime; it is based on the view that it is unfair for a person to gain from their wrongful conduct. Retribution reflects society's desire to see justice served and offenders held accountable for their actions.

Rehabilitation

An objective of sentencing designed to reform the offender so that they do not commit offences in the future. Rehabilitation aims to address the underlying causes of criminal behaviour and equip offenders with the skills and support they need to lead law-abiding lives.

Incapacitation

Making an offender incapable of committing further offences by restricting their freedom. Incapacitation protects the community by preventing offenders from engaging in further criminal activity while they are incarcerated.

Mitigating Factors

Circumstances that make the offence less severe and can lead to a reduced sentence. Examples include the offender's youth, lack of prior criminal history, and remorse for their actions.

Aggravating Factors

Circumstances that make the offence more serious and can lead to an increased sentence. Examples include the use of violence, the vulnerability of the victim, and the offender's prior criminal history.

Doli Incapax

Child that is not legally responsible for a crime and therefore cannot be found guilty of an offence – common law developed a presumption that infants and very young children were incapable of forming the necessary criminal intent (mens rea) to commit a crime. This presumption can be rebutted if the prosecution can prove that the child understood the nature and consequences of their actions.

International Crime

A broad term covering any crime that is punishable by a state that has international origin or consequences, or a crime recognised by the international community as punishable. Examples include war crimes, crimes against humanity, and genocide. These crimes are often dealt with by international tribunals.

War Crimes

An activity performed during a time of war that goes against the rules of war as accepted by the international community. War crimes include targeting civilians, using prohibited weapons, and mistreating prisoners of war. The Rome Statute of the International Criminal Court defines war crimes.

Crimes Against Humanity

Acts committed as part of a widespread or systematic attack direction against any civilian population – crimes occur under state or organisational orders. Examples include murder, torture, rape, and persecution. These crimes are often committed by state actors or organised groups.

Genocide

The intent to destroy racial, ethnic, religious, or national groups. Genocide involves acts such as killing members of the group, causing serious bodily or mental harm, and deliberately inflicting conditions of life calculated to bring about its physical destruction. The Genocide Convention defines genocide.

Extradition

The legal surrender of a suspect or convicted criminal by one jurisdiction to another to face criminal charges or sentence. Extradition is governed by treaties between countries and requires legal proceedings to ensure fairness and compliance with human rights standards.

Sanctions

Actions taken by nations when international laws are broken. Sanctions can include economic measures, such as trade embargoes, and political measures, such as diplomatic isolation. The United Nations Security Council can impose sanctions under Chapter VII of the UN Charter.

INTERPOL

A network of police forces from 190 countries from all over the world established to facilitate collaboration. INTERPOL facilitates the sharing of information and coordination of investigations across borders.