CRIME - LS
Crime — Topic 1 Legal Studies 2023 Themes and Challenges:
The relationship between justice, law and society.
The development and reform of law as a reflection of society.
The importance of the rule of law.
The responsiveness of the legal system in dealing with issues.
The effectiveness of legal and non-legal mechanisms in achieving justice for individuals and society.
The Nature of Crime
Meaning of Crime
A crime is defined as an act or failure to act (omission) which causes harm to society, thus breaking the law and is punishable by the state.
Laws on crime change over time to reflect society’s beliefs and values.
A crime harms society and individuals, for which a punishment has been determined by law and is enforced by the state.
The Elements of Crime
Mens Rea (Guilty Mind)
Definition: The mental capacity to intend to commit a crime.
Categories:
Intention: clear, willful intention to commit a crime through act or omission.
Recklessness: established when the accused is aware that their actions could lead to a crime but chooses to act anyway.
Criminal Negligence: when the accused fails to foresee a risk that they should have.
Actus Reus (Guilty Act)
Definition: The voluntary commission of an act that breaks the law.
Important factors include:
The act actually took place.
It was done by the accused.
It was voluntary.
Strict Liability
Definition: No mens rea needs to be proved; the defendant can be convicted even if they were unaware of elements making their acts or omissions criminal.
Example: Numerous traffic offences.
Defense is limited to demonstrating that the act did not occur.
Causation
Definition: The act must also be the cause of the crime (the link between the act and the crime).
Must be the 'operative and substantial' cause of the crime.
Example: An assassin fires a gun but misses; intent and conduct are present, but causation is not there if the victim dies unrelated to the act.
Case Study: Blaue v R (1975)
Facts: A defendant stabbed a victim who refused a blood transfusion due to religious beliefs. The victim died, and the court ruled the stabbing was the operating cause; the refusal did not break the causation chain.
Categories of Crime
Acronym: Pink Snails Eat Drugs Driving Publicly and Pooping.
Offences Against Persons: Intent to cause injury (e.g. assault, manslaughter).
Economic Offences: Result in economic loss to victims (e.g. robbery, larceny, white-collar crimes like embezzlement).
Offences Against the State: Criminal acts against the government (e.g. treason, sedition). Recent anti-terrorism laws received debate for balancing societal protection and free speech.
Drug Offences: Use, supply, and possession of prohibited drugs governed by the Drug Misuse & Trafficking Act 1985 (NSW).
Public Order Offences: Acts deemed unacceptable by a reasonable person (e.g. offensive language, indecent behavior, prostitution).
Traffic Offences: Breaches of traffic laws; many are strict liability.
Victimless Crimes: Crimes without a clear victim (e.g. self-use of prohibited drugs).
Preliminary Crimes: Attempts or planning to commit a crime (e.g. attempted robbery, conspiracy).
Summary vs. Indictable Crimes
Indictable Offences: Serious offences (e.g. murder), requiring committal hearings and trial by jury, with serious penalties (e.g. life imprisonment).
Summary Offences: Minor offences (e.g. shoplifting) heard in a local court by a magistrate without a jury, penalties do not exceed two years.
Parties to a Crime
Classification of involvement impacts punishment severity:
Principal in the First Degree: Directly responsible for the crime (e.g. bank robber).
Principal in the Second Degree: Assists the principal (e.g. getaway driver).
Accessory Before the Fact: Helps plan the crime (e.g. obtaining blueprints).
Accessory After the Fact: Assists the offender post-crime (e.g. hiding the criminal).
Factors Affecting Criminal Behavior
Social Factors: Family situation, personal relationships, and associations can influence attitudes toward crime.
Economic Factors: Economic disadvantage can lead to disconnection from societal values and law respect.
Psychological Factors: Psychological development failures and learned aggression can increase criminality.
Genetic Factors: No conclusive evidence supporting genetic theories for criminal behavior.
Self-Interest: Pursuit of personal satisfaction through criminal acts (e.g. theft).
Ideological/Political Factors: Political motivations behind offences against the sovereign can arise, especially in terrorism.
Crime Prevention
Viewed as more effective than merely responding to crimes.
Public Presence: Officers deter crimes through visibility.
Situational Crime Prevention: Increasing risks of capture and difficulty in committing crimes (e.g. security cameras).
Social Crime Prevention: Education and access to societal resources aim to reduce predispositions to crime.
Examples of youth diversion programs include police citizens’ youth clubs and community engagement initiatives.
The Criminal Investigation Process
Police Powers
Right to prevent crime through public presence, investigate crimes, and assist in prosecutions.
Power to Arrest: Under LEPRA 2002; requires a warrant or reasonable suspicion.
Power to Issue Cautions: For minor offences; can issue infringement notices (fines).
Power to Stop and Search: Based on reasonable grounds to detain for search; must either arrest or release after search.
Power to Obtain Identification: Request personal info in certain situations.
Power to Enter Premises: Purposes include preventing violence or making arrests.
Emergency Powers: Used during public disorder situations (e.g. roadblocks).
Case Study: Roberto Curti [2012]
Overview of police power abuse leading to Curti's death; highlights the importance of law in regulating police conduct.
Reporting Crime
Citizens have discretion in reporting crimes; community-based programs like Crime Stoppers promote cooperation.
High levels of unreported crimes; reasons include fear of retribution, apathy, and psychological trauma.
Investigating Crime
Police discretion determines the seriousness of alleged crimes to warrant investigation.
Evidence collection must be lawful; various types of evidence include:
Physical (weapons or clothing)
Electronic (records)
Witness statements
Forensic (DNA)
Technology in Investigation
Use of CCTV and DNA analysis revolutionizes criminal investigations.
Strict rules govern the use of DNA in evidence, emphasizing privacy issues.
Case Studies on Convictions
R v Gittany [2014]: Murder conviction supported by collected evidence.
R v Crowe [2016]: Cold Case Justice Project successfully used DNA evidence for conviction.
Farah Jama case [2008]: DNA evidence led to a wrongful conviction showcasing miscarriage of justice concerns.
Search and Seizure Powers
Types of searches conducted by police include ordinary, frisk, and strip searches. Police require reasonable grounds for searches and must generally have a warrant.
Strip searches require specific conditions to protect dignity and privacy.
Arrest and Charge
Arrest is a lawful detention; police can arrest a person if they believe a crime has been committed (LEPRA provisions).
Charges are formally notified to suspects post-arrest, including a details of their case and rights.
Warrants
Definition and necessity of search and arrest warrants explained.
Case studies illustrate the enforcement of proper procedures for warrants.
Bail Conditions
Bail allows conditional release pre-trial; conditions encompass reporting, maintaining good behaviour, and restrictions on movements.
The Bail Act 2013 (NSW) sets out conditions for granting bail based on the seriousness of the offence, including 'show cause' and related criteria.
Case Examples of Bail Decisions
R v Xi [2015]: Bail granted considering personal circumstances.
Steven Fesus and Mahmoud Hawi [2014]: Removals of presumptive bail restrictions.
Man Monis [2014]: Bail controversy following criminal allegations.
Remand
Definition and implications of remand, emphasizing concerns with juvenile detention rates.
The Criminal Trial Process
Court Jurisdiction
Hierarchical structure of courts, with lower, intermediate, and higher courts performing specific roles with criminal and civil authority.
Court Features
Local Court
Deals with lower-tier offences; presided over by magistrate; no jury involvement.
Children’s Court
Jurisdiction over offenders under 18 with a focus on rehabilitation; closed court proceedings.
Coroner’s Court
Handles unexplained deaths and accidents inquisitorially.
Drug Court
Aims to address recidivism among drug offenders through therapeutic-focused approaches.
District Court
Jurisdiction over serious offences and includes appellate review from Lower Courts.
Supreme Court & Court of Criminal Appeal
Highest authority for serious crimes and appellate decisions.
Adversary System
Definition and principles; the adversarial nature contrasts with inquisitorial systems.
Functions of parties in the adversarial process, including judges and juries.
Verdicts and Jury
Role of juries in criminal trials, their selection process, and their importance in ensuring justice through community participation.
Discussion on hung juries and the potential for majority verdicts.
Sentencing and Punishment
Sentencing Framework
Judicial guidelines promoted uniformity; statutory guidance outlined for sentencing considerations.
Purposes of Punishment
Deterrence: Specific vs. General.
Retribution: Justice fitting the crime.
Rehabilitation: Programs aimed at changing offender behavior.
Incapacitation: Protecting society by removing offenders.
Factors Influencing Sentencing Decisions
Guidelines in the Crimes (Sentencing Procedure) Act 1999; relation of aggravating and mitigating circumstances to informal processes.
Victim Involvement in Sentencing
Legal recognition of victims’ rights under NSW legislation.
Impact of victim impact statements on sentencing outcomes.
Appeals Process
Effective to ensure justice; processes and rights regarding prosecution and defense appeals covered.
Young Offenders
Criminal Responsibility and Rights
Age of criminal responsibility under NSW law explained.
Children’s Court Procedures
Features and purpose; reformation of youth justice based on rehabilitation principles.
Alternative Measures
Warnings, cautions, and youth justice conferences provide diversion from prosecution and promote restorative justice.
Community Interventions
Programs designed to address offending behaviors and prevent recidivism within community settings.
International Crime
Categories of International Crime
Crimes Against the International Community: Piracy, war crimes, crimes against humanity, and genocide.
Transnational Crime: Boundary-crossing crimes (e.g. smuggling, trafficking).
Domestic Measures to Combat International Crime: Legislation and cooperation among states.
Enforcement Challenges
Limitations on the effectiveness of international law and the role of the International Criminal Court.
Issues surrounding definitions and enforcement, including extradition concerns and state sovereignty complexities.
Sanctions and Measures Against International Crime
Overview of various forms of international sanctions and their implications for state conduct.
Conclusion
Integration of theories and practices in criminal justice systems domestically and internationally, with emphasis on the complexities and ongoing reforms efforts.
Review Questions
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Discuss the distinction between summary and indictable offences.
Evaluate the effectiveness of the criminal justice system in attaining justice for young offenders.
Assess how domestic measures relate to the need for effective crime legislation.