CORE 1: Crime 1. THE NATURE OF CRIME Describe the nature of crime The meaning of crime: An act or omission of duty resulting in harm to society that is punishable by the state

● Omission of Duty = a lack of action ● Harm to society = crimes are seen as actions against a community ● Punishable by the state = we pay for the entire justice system

This definition doesn’t tell us exactly what the acts or omissions are. This is because the conduct that we consider ‘criminal’ now may become legal at another time. Laws are made, enforced and interpreted by people:

● Things that are ‘socially acceptable’ are generally not ‘criminalised’, despite the amount of harm they cause

● There is also some social acceptance that doing something to yourself is a lot less serious than contributing to others’ suffering

� Possessing or using drugs = 2% went to jail in 2016 � Importing drugs = 88% went to jail in 2016

● Violent crimes are also seen as more serious than non-violent crimes: � Fraud = 12% went to jail in 2016 � Sexual assault = 48% went to jail in 2016

The law is constantly changing (amended) due to law reform:

● The Crimes (Criminal Organisations Control) Act 2009 (NSW) was passed after a murder at Sydney Airport

● This law was announced, written and passed in one week due to media and public outrage

● A member of the Hells Angels challenged the law in the High Court and the NSW government tinkered with the law and amended it to Crimes Amendment (Consorting and Organised Crimes) Act 2012 (NSW) a.k.a. the ‘Consorting Law’

● So, the meaning of crime was changed to include ‘consorting’ with people who have committed crimes in the past

● Changing the meaning of crime can have terrible consequences ● 40 of the people who have had the consorting la used against them were aboriginal

The Elements of Crime: There are two elements that the prosecution need to prove in order to find the defendant guilty of an indictable crime are:

● Actus Reus (the action) ● Mens Rea (the intention)

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Actus Reus: ● When the prosecution attempt to prove actus reus of a crime, they are trying to

prove that the accused did the crime ● Actus reus must be voluntary; meaning it can’t be a reflex ● What does count as actus reus for a crime:

� Presenting a weapon � Getting drunk and then committing a crime (unless with spiked drinks)

● What doesn’t count as actus reus for a crime: � An omission (unless you had a duty) � Automatism (anything involuntary, such as sleepwalking)

● It must be physically voluntary (not mental) Mens Rea:

● Means ‘guilt mind’ ● The state of mind required to commit a crime ● Intention = when the accused just straight out meant to commit the crime (on

purpose) ● Recklessness = when the accused knew that what he was doing could hurt someone,

but did it anyway ● Negligence = when the accused should have known that what they were doing could

hurt someone (e.g. R v. Sam, 2007) Case Example: R v. Thomas and Manju Sam manslaughter by criminal negligence Strict Liability Offences:

● For less serious offences, called strict liability offences (e.g. speeding), the prosecution doesn’t have to prove that the person intended to commit the crime

● All they have to prove is actus reus and causation, not mens rea ● Remember, strict liability offences (like running red lights) only require the actus

reus, not mens rea ● These are usually dealt with in the Local Court ● They are also called ‘summary offences’, they have less serious punishments (mostly

no more than 2 years’ prison, but mainly just fines and community service orders) Causation: R v. Hallet (1969):

● The victim was beaten really badly, but wasn’t killed ● He was left on the bench and the tide came up and drowned him ● The judges decided that it was the guy who beat him up and left him there was

responsible for his death ● If he hadn’t done that, the guy wouldn’t have died ● Hallet was convicted of murder

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Recognise the different categories of crime Offences against the person:

● Murder killing someone or intending to ● Manslaughter voluntary and involuntary ● Assault threat and/or use of violence ● Sexual Assault without the other person’s consent (you cannot consent if you are

under the age of 16 or are severely intellectually disabled) Offences against the sovereign:

● Treason attempting to take over the government by force, fighting in a war against your own country

● Sedition trying to get other people to go against the government Economic Offences:

● Property Crimes larceny (stealing someone’s property e.g. car theft); robbery (stealing something from someone who is there e.g. mugging, bank robbery), etc.

● White Collar Crimes embezzlement (stealing from your own company); insider trading (illegally using secret information to profit from the share market); tax evasion, etc.

● Computer Crimes hacking, spreading viruses, etc. (new section about computers was only added to the Crimes Act 1900 in 2011

Drug Offences:

● Anything to do with possessing, using, supplying, selling, manufacturing, growing or importing illegal drugs

Driving Offences:

● Speeding, reckless driving, DUI, etc. ● NSW Speeding penalties reduced in 2009 for people going under 10km over the

speed limit, however the penalties for going over that were increased Public Order Offences:

● Actions deemed offensive to the public, but legal in your own home ● Offensive language, public nudity, soliciting prostitution

Preliminary Crimes:

● Attempts to commit a crime is punished in the same way as it would be for someone who executed the crime

● Conspiracy (difficult to prove)

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Define summary and indictable offences

SUMMARY OFFENCES INDICTABLE OFFENCES ● Less serious offence tried by a

magistrate in the local court ● Judgement and punishment

determined by a magistrate ● Charge usually laid out by a police

or government officers ● Punishment is usually less severe,

such as fines, good behaviour bonds or community service

● More serious crime (e.g. rape, murder, etc.) tried by a judge and jury

● Judgement determined by a jury, punishment determined by a judge

● Charge bought forward by police prosecutors working for the state

● Punishment usually imprisonment or a hefty fine

Parties to a crime: Principle in the First Degree:

● This is the principle offender, or the person who actually commits the criminal act Principle in the Second Degree:

● This is the person who was present at the crime and assisted or encouraged the principle offender to perform the offence

Accessory Before the Fact:

● This is someone who has helped the principle to plan or carry out the crime ● Helps in planning and preparation of the crime

Accessory After the Fact:

● This is someone who has assisted the principle after the actual act is committed ● E.g. driving a get-away car, or helping to dispose of evidence

Examine a range of factors that may lead to criminal behaviour Psychological Factors:

● Mental illness affecting a person’s behaviour ● Psychological factors contributing to offence will be relevant during sentencing (e.g.

drug rehabilitation) Social Factors:

● Social factors, including a person’s attitude towards crime, may include their family situation or personal relationships

● Social groups that people associate with will influence a person’s attitude and views of acceptable behaviour

● The environment a person has been raised in

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Economic Factors:

● People from disadvantaged backgrounds are more likely to commit crimes ● Poor education and lack of skills leads individuals to commit economic offences to

improve their financial situations ● One third of male and one half of female criminals in NSW receive welfare payments

Genetic Factors:

● Studies have been conducted attempting to link criminal behaviour to a genetic abhorrence

● No conclusive evidence yet exists Political Factors:

● Offences against the sovereign or public order offences may have a political factor involved

● An extreme example of such an offence is terrorism Self-Interest:

● Most crimes are committed in the interest of the offender(s) ● White collar crimes are a good example of crimes motivated by personal greed,

rather than external factors Investigate a range of situational and social crime prevention techniques

Situational Crime Prevention Social Crime Prevention ● Measures which make it more

difficult or less rewarding to commit crimes

● May include installation of security systems, antivirus software, or avoiding poorly lit environments

i.e Greater number of police in areas such as King's Cross were majority of drunken, one punch assaults occur; Use of UV lights in bathrooms in order to stop individuals from injecting substances harder to see veins 

● Measures which attempt to address the underlying social factors which may lead to criminal behaviour, including a lack of skills or socioeconomic disadvantage

● May include youth programs or educational workshops

● The most common strategy to encourage young people away from crime is the use of diversionary programs that provide a venue for alternative activities, such as sporting groups, the Police Citizens Youth Clubs and drop-in centres 

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2. THE CRIMINAL INVESTIGATION PROCESS Discuss the powers of police in the criminal process Police Powers:

● Set out in the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) ● Response to the Wood Commission recommendation that NSW police power should

be put into a single law ● When it was originally passed, LEPRA did not give police any extra powers ● However, since then, lots of new powers have been introduced that have

significantly increased police powers Examples:

● Emergency public disorder powers ● Powers to move on groups of intoxicated people ● Gang-related power and covert search warrants

Searches by ‘consent’:

● No safeguard to protect people who are searched by consent ● Some people comply with emptying their pockets as they don’t understand they

have a choice (DPP v. Leonard, 2011) ● Police have to tell the person whether the search is voluntary or compulsory ● The LEPRA Amendment Act 2014 included a requirement for the officer to prove

they’re a police officer and to give the person their name and place of duty Emergency public disorder powers:

● These new police powers were bought in by the Law Enforcement Legislation Amendment (Public Safety) Act 2005 following the Cronulla riots

● Arrest is not being used a last resort according to LEPRA it is only supposed to be used as a last resort

Civil Remedies:

● A person who has been unlawfully arrested, detained or searched may be able to get damage for torts, such as wrongful arrest, false imprisonment, assault, etc.

Issuing AVO’s:

● In 2013, police were given the power to issue ADVO’s

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Examine the reporting and investigating of crime Reporting Crime:

● Except for traffic offences, police usually don’t see crimes being committed, so they rely on the public and the victim to report crimes

● We only have exact statics about the level of reported crime not all crimes are reported to the police

● Some crimes are more reported than others (e.g. theft) ● Crime stoppers is a national based community program that promotes people to

report information on crimes Annual Report = 50,000 calls resulted in 300 arrests Why don’t people report crimes?

● Reluctant to become involved or to appear as a witness ● Fear of the consequences if the crime is reported ● Inability to report the crime ● The dispute has already been settled with the offender ● The perceived time or administrative burden of it

Examples: Assault victims:

● 18% didn’t report the issue because it was “too trivial” ● 10% didn’t report the issues as “there is nothing the police can do”

Domestic violence victims: ● Cultural barriers (e.g. language, expectation of women, etc.)

Sexual assault victims: ● Fear of further attacks, beliefs that it is “normal” ● Fear the attacker will get in trouble (e.g. could be a close family member)

How many crimes go unreported?

● ABS – Crime Victimisation Survey: � around 65% of assaults go unreported � around 70% of sexual assaults go unreported

● NSW Women’s Refuge Movement Resource Centre: � around 80% of domestic violence cases go unreported

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Investigating Evidence: ● Once police receive information about a crime, they make a decision about whether

to pursue an investigation or not ● Police have limited resources (money, time, etc.) not all crimes reported are fully

investigated by police ● One mistake in the process of investigating a crime can ruin an entire case (e.g. if a

murder weapon is found in an illegal search, it cannot be used as evidence in court) Gathering Evidence:

● One of the main tasks of police in investigating crimes ● The ability for the prosecution to prove the case against the defendant is based

mostly on the amount and reliability of the evidence gathered by police ● Evidence may be physical (papers, clothing, weapons, etc.) ● It may be electronic (photos, phone records, files on computers) ● It can also be in the form of a witness statement

Use of Technology:

● Getting more important in criminal trials ● Technology includes surveillance technology (CCTV cameras and phone tapping) an

DNA identification ● Very useful in the Jill Meagher Case (2012) where police shared CCTV evidence with

the public led to an arrest ● Sometimes it can be wrong, such as in the case of Farah Jama (2008) where a man

was convicted of a because of a DNA mix-up Search and Seizure:

● The police have the power to search someone who is under arrest ● The police have no power under common law to search someone before the arrest

them (Mammonev v. Chaplin, 1991) ● So, a statute law had to be passed to give police the power to search someone

without having already arrested them. The law that gives police that power today is called the Law Enforcement (Powers and Responsibilities) Act 2002

● The police have the power to stop and search anyone who they reasonably suspect has stolen something. If they find a weapon, drugs or stolen goods, the police can seize them

Warrants:

● A police officer can apply for a search warrant ● It generally has to be for an indictable offence, a firearms offence, child pornography

or that there has been something stolen ● It has to be signed by a judge ● The person in the house has to be made aware that the police are there and why

there are there ● Anything mentioned in the warrant can be seized ● A warrant also needs to be signed in order to tap someone’s phone

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Controversial Investigation Techniques: 1. Sniffer dogs:

● If there is someone walking down the street with drugs in their pocket, but they otherwise look completely normal, the police have no power to search them

● But, if a sniffer dog happens to walk past you, sniff your pocket and sits down in front of you, there is now reasonable suspicion that you are carrying drugs

● The case of DPP v. Darby (2002) questioned the use of sniffer dogs the judge found that being sniffed by a dog is not a search

2. Covert Searches: ● Covert means ‘secret’ ● When the police search a premises, they have to notify the occupant what

they are searching for, otherwise it is illegal ● The Terrorism Legislation Amendment (Warrants) Act 2005 changed this,

allowing for covert searches in relation to terrorism offences ● But, when the law was passed some argued that it was only a matter of time

before this new police power would extend to other crimes � A Senate Committee Report (2007) warned that this might happen and it

did ● The Law Enforcement (Powers and Responsibilities) Amendment (Search

Powers) Act 2009 � This change to the original LEPRA allows for covert searches for any crime

that carries a maximum penalty of 7 years’ jail or more (e.g. child pornography, drug trafficking, etc.

Arrest:

● The police are not allowed to detain a person unless they have a good reason to do so

● The conditions under which the police may lawfully arrest a person are contained in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

● These conditions include: 1. Catching a suspect committing an offence 2. Believing on reasonable grounds that a suspect has committed or is about to

commit and offence 3. Where that person has committed a serious indictable offence for which they

have not been tried 4. Possessing a warrant for that person’s arrest

● Normally, the court will issue the police with a warrant, stating that the person is being arrested for a particular offence

● The document authorises police or law enforcement officials to apprehend an offender and bring that person to the courts

● In order for a procedure to be legal, the police must state to the person that they are under arrest and why they are under arrest

● By law, the police are able to use whatever reasonable force necessary to arrest a person

� This may even include shooting the suspect (e.g. if they threaten police with a weapon)

� The officer must state that they have a weapon and will use it

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� If an officer uses excessive force, they can face charges ● Once a suspect has been arrested, they can only be held for a specified period of

detention before they must be either charged with committing the crime, or released

Charge:

● At the end of the maximum detention period, the police must either charge the suspect with the specific offence or release them unconditionally

● If charged, the police must either bring them before a magistrate or authorised officer as soon as practicable after the end of the maximum detention period

● Those keep in custody will be brought before the court for a bail hearing ● The exception to this rule is the Terrorism (Police Powers) Act 2002 (NSW), which

allows the police to make an application to the Supreme Court to detain a person in custody for a maximum period of 14 days without charge if they have reason to believe that the suspect will otherwise engage in a terrorist act “preventative detention”

Warrants:

● A warrant is a legal document issued by a magistrate or judge and authorises a police officer to perform a particular act (e.g. make an arrest conduct a search, seize property or use a phone tap)

● In NSW, certain searches cannot be performed without a valid warrant ● E.g. police can use sniffer dogs at pubs and clubs without a warrant, but cannot use

them at any other public events without a warrant ● This judicial oversight helps ensure those special police powers are only used when

appropriate, and provides an additional layer of protection from ordinary citizens against the misuse of that power

● Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) sets out the circumstances in which a search warrant can be used

● When applying for a search warrant, the police must give sufficient evidence to the magistrate or judge to justify the granting of a warrant

● The warrant will state the reason for the premises being searched and identify what articles are being searched for

● When any premises are to be searched, the police must identify to the occupier the reason for the search and give them a copy of the warrant

● Police will usually remove any items which are considered to be relevant to the investigation and keep them until after the case is prosecuted

● Police may require a person to attend a police station if they have been placed under arrest

Summons:

● Once a person is charged, they will be issued with a summons to appear in court, or if it is a serious matter, they will be further detained and a bail hearing will be set

● A court attendance notice (CAN) is a legal document that states when and where a person must appear in court and the charge to which they must answer

● A CAN is a legal document that is delivered personally to the accused by a court-appointed person

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● Witnesses may receive a subpoena, which requires them to appear in court on a specified date to give evidence

● Failure to attend the appointed court session could result in the subpoenaed person being arrested and charged

Bail:

● Bail is the temporary release of an accused person awaiting trial ● In more serious matters, the accused, once charged, may be further detained at the

police station and be fingerprinted and photographed ● The police are required to bring them before a court or authorised officer as soon as

practicable for a bail hearing ● At a bail hearing, the court or the authorised officer will determine whether the

accused will be released on bail or remain in custody until their trial ● Bail arrangements can take many forms:

� Sometimes there are conditions, such as the lodgement of a specified sum of money as a guarantee that they will appear at court when required

� People can also be released on their own recognisance, which is where they promise to turn up, knowing that failure to do so will result in them being fined and arrested

� Bail may also be in the form of surety, which is where someone else agrees to put up the money on behalf of the accused as an assurance that the accused will turn up to court. If the accused fails to show up, the bail money is forfeited

● Other components of the bail system are the use of wrist and ankle monitoring devices and diversionary devices (such as rehabilitation programs)

● In addition, the accused may need to show up at a police station on a regular basis to prove that they have not moved out of the area they have been restricted to

● They may also have to surrender their passport if they have one ● Restrictions for granting bail for drug trafficking and serious domestic violence had

been added to the Bail Act 1978 (NSW), which was in place until May 2014. This was known as the ‘presumption against bail’ and it meant that it was up to the accused to prove to the court why bail should not be refused if one of these offences had been committed. This could mean that if bail was refused, the accused may spend an extensive period of time in exile before being found innocent

● In 2013, the new Bail Act 2013 (NSW) was introduced (commenced May 2014) ● The NSW Government introduced the amendments to the Bail Act after community

concerns were raised in an internal review by Attorney-General John Hatzistergos ● The changes included:

� Bail will be refused in the accused person is deemed to be an ‘unacceptable risk’

� Determining bail will include new risk factors, such as the views of the victim, and whether the accused has criminal association or a history of non-compliance with court orders

� A previous bail decision cannot be reviewed purely on the basis of the new Bail Act – this is not, by itself, a change of circumstances’

● The need for law reform in the area of bail was further raised in the two recent criminal cases of the murder of Jill Meagher in Melbourne and the Lindt Café siege in Sydney

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● Recent independent and parliamentary papers have heavily criticised the presumption against bail legislation

● The Bureau of Crime Statistics and Research (BOSCAR) has identified that in 2014, the prison population rose by 2.4% to over 10,000 prisoners

● The increase is attributed to a growth of the number of prisoners on remand Remand:

● If bail is denied and the magistrate or authorised officer determines that the accused should remain in custody until trial, the accused will be held on remand in police custody or at a remand centre

● Remand is a period spent in custody awaiting trial ● Remand is usually sought for people who have committed particularly violent crimes,

dangerous criminals, repeat offenders, or those thought to be a flight risk ● The security level of the facility where they are detained is also determined by the

above factors ● The accused will remain in detention until the trial date, then throughout the trial

and until they are sentenced ● If the accused is found guilty and convicted, the time spent in remand is usually

taken off the total time of their sentence and referred to as time already served Detention:

● The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) sets out the lawful conduct under which a suspect can be detained for questioning and for the purpose of further investigation

● Police can only detain a suspect for 4 hours, by which time that person must be either charged or unconditionally released

● They may then apply to a magistrate for a warrant to extend the investigation period up to a further 8 hours

● During this time, the offender would be held in either a police cell or an interview room

● There are, however, many rest periods within the 4 hours, which might not be included in the total time

● Examples or periods of time that might not be included are: � Transport from the point of arrest to the police station � Waiting for the relevant law enforcement officers to arrive to conduct the

interview � Waiting for the legal practitioner, family member, guardian of a dependant

person or an interpreter to arrive at the police station � Time required by the suspect to talk a friend, relative or lawyer and the time

it takes that person to arrive at the police station � Medical treatment of the person in custody � Refreshment periods such as eating, showering or toileting � Recovering from the side effects of drugs or alcohol � Taking part in an identity parade � Charging procedures

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Interrogation: ● Usually, as soon as the police have a suspect in custody, the suspect is questioned ● This is known as interrogation, which is the act or process of questioning a suspect,

carried out by investigation officers ● The police must issue a caution (informs the suspect of their rights) as soon as

practicable after the person has been detained, to inform them of the maximum period of detention and that they don’t not have to say or do anything, but anything that they do or say can be used against them as evidence

● The caution must be given both orally and in writing Rights of Suspects:

● The suspect has the right to silence, which means they do not have to answer any of the police’s questions, whether in the company of their legal representative or on their own

● This can make the investigation difficult for police if they want the suspect to fill in gaps in the information in their evidence

● However, many suspects voluntarily answer questions ● Any suspect under the age of 18 has the right to have a responsible adult present

with them at the interrogation ● If the suspect lies about their age and says they are over 18 and the investigation

begins, the evidence they provide is admissible in court ● The interview is recorded on videotape and on two audiotapes: one for the police

records and one for the defendant ● These recordings are made to ensure that all policies and guidelines are adhered to

by the police and as a record in court Assess the effectiveness of the criminal investigation process as a means of achieving justice

Factors which help ensure the achievements of justice in the criminal investigation process

Factors which may limit the achievement of justice in the criminal investigation process

● Police need to use technology to combat crime, because many perpetrators are becoming more technologically adapt

● Police have wide powers of arrest of people who they reasonably suspect of having committed or being about to commit a crime, so the community is protected from criminals

● Police may only use firearms in limited circumstances

● People arrested are usually granted bail unless there are good reasons not to do so

● The exercise of some police powers, such as camera surveillance, DNA collection and COPS, may be an unnecessary violation of privacy

● A significant number of crimes are not reported because people believe nothing effective will be done to the offender particularly in cases of sexual assault

● Police have a wide discretion in deciding whether to arrest someone or not, particularly when it comes to minor offences. This discretion could

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● People generally may not be detained by police unless arrested and then only for a limited period of time

● The right to silence means that people do not have to answer police questions in most circumstances, so they are protected from giving answers which may harm themselves or others

● Generally, an accused person is given the opportunity to see a lawyer

● Generally, evidence that has been obtained illegally will not be admissible in court

be exercised in a discriminatory manner

● Police may have too much discretion in deciding what charge to lay on an arrested person

● The decision to grant bail is a very serious one, as there is always the chance that an innocent person is kept in detention if bail is refused. This can be particularly serious if delays in the criminal process are lengthy

● Suspected terrorists can be detained without charge for an indefinite period, which violates a fundamental human right

● Some argue that the right to silence only operates to protect the guilty

● There is no absolute right for an accused person to be able to communicate with a friend or relative

● There is no absolute right for an accused person to contact a lawyer

● Illegally obtained evidence is admissible in court if it is judged to be in the public interest. This may jeopardise the accused’s presumptions of innoence

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3. CRIMINAL TRIAL PROCESS Describe the role of courts in the criminal justice process Court Jurisdiction:

● Courts will be used depending if it is a bail hearing, committal hearing or trial

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● Some courts will have power to hear certain trial cases (local, district and supreme) ● The authority for a court to hear a matter for the first time is known as the court’s

original jurisdiction ● The authority to review matters on appeal from another court is known as the

court’s appellate jurisdiction Double Jeopardy Rule:

● That people cannot be retired for the same crime once they have been acquitted ● It is not limited to less serious offences ● No longer plausible under the Crimes (Appeal and Review) Act 2006 (NSW)

Discuss the use of the adversary system as a means of achieving justice The Adversary System:

● Criminal justice system is based on an adversarial system of law ● Supporters of the system say it’s fair because both sides have the opportunity to

present the case ● Opponents argue that in many cases the competing sides are not equal before the

law, with potential imbalances in resources, skills or knowledge. The jury may also misunderstand the case

Examine the role of legal representation in the criminal trial Legal Personnel: Magistrate:

● The judicial officers that preside over hearings in the local court, and makes a determination on the basis of evidence presented

● Once a magistrate has determined the guilt of the accused, they will pass an appropriate sentence

● They will also conduct committal hearings for indictable offences to be tried and will usually hear bail proceedings

Judge:

● Presides over the intermediate and superior courts ● They oversee proceedings, ensuring that the procedures of the court are followed ● Judges will make decisions about points of law and give instructions to the jury to

make sure they understand the proceedings and the evidence presented ● After the jury’s verdict, the judge will hand down the sentence and rulings ● Some cases will have no jury and the judge will be responsible for making the final

determination in the case Police:

● Investigate alleged crimes and gather evidence to support the prosecution case Prosecutor:

● Brings the action against the accused

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● It is the prosecutor’s role to prosecute the offender in a court of law and obtain an appropriate form of sanction or punishment for the offence

● There are two types of prosecutors in criminal trails: 1. Police prosecutors 2. Public prosecutors

Director of Public Prosecution:

● The DPP is independent of the police and the government ● They are responsible for the carriage of indictable matters, including running

Committal Proceedings in the Local Court as well as trials in the District and Supreme Court

● The DPP also has the carriage of any appeal in relation to an indictable matter, whether as respondent or appellant

Public Defenders:

● To present evidence and argument to the court in support of the defence’s case both in the first instance and on appeal

● Barristers, as specialist advocates, appear for the defence in more complex and serious criminal matters in higher courts

● It is also part of their role to conduct any relevant negotiation with the prosecutions (e.g. charge negotiation)

● Accordingly, they play an important role in ensuring that justice is accessible to people who suffer economic advantage

Pleas, Charge and Negotiation:

● The law requires the accused to enter into a plea of guilty or not guilty ● Please will affect the sentencing process, especially if the accused admits guilt at this

stage ● Plea bargaining (case conferencing) is often controversial. This is where the accused

will admit guilt to a lesser charge in order for higher charges to be withdrawn ● This will result in faster and less costly cases for the prosecution

FOR PLEA BARGAINING AGAINST PLEA BARGAINING ● Decreases time delays and cost ● Increases the rate of criminal

convictions ● Conviction on a lesser charge is better

than no charge

● Crimes may go unpunished ● Accused may please guilt to a lesser

charge ● May lead to bullying of accused and

not give the right to a fair trial Examine the role of legal representation in the criminal trial Legal Representation:

● Dietrich v. The Queen 1922 in the High Court established the right to a fair trial in consideration to the accused not being able to afford legal representation

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● Not everyone has the finances to seek proper legal representation. Can result in injustices in the courtroom

● In 1979, the Legal Aid Commission was established by the state government ● It was created:

� To give access to proper law representation of marginalised and disadvantaged groups

� To have equitable access before the law for all groups of society ● The defendant must be means tested to decide whether their income or assets can

pay for legal representation ● Merit Test will be used to see what area of law is being used. Not all areas of law will

be covered ● Legal Aid is often limited in funding where many people who require assistance may

not receive it ● Legal Aid is a great way for the accused to gain access to the law, however,

depending on the funding of government, resource efficiency could be affected Burden and Standard of Proof: Burden of Proof:

● In criminal matters, the responsibility of the prosecution to prove the case against the accused

Standard of Proof:

● The level of proof required for a party to succeed in court ● Prosecution must prove the case beyond a reasonable doubt ● Prosecution will often bring a case to trial if they believe there is enough evidence to

prove the guilt of the accused to the jury Case Example: Anti-Bikie Gun Laws

● Crimes (Criminal Organisations Control) Act in 2009 first introduced – restrict bikie associations, increased powers for judges

● Wainohu v. New South Wales 2011 – high court rules legislation invalid ● The Crimes Amendment (Consorting and Organised Crime) Act 2012 – cleaning up

High Court decision ● Inverell Case:

� 21-year-old disabled man spoke with known criminals – legislation used against him

� Abuse of police powers and shows how legislation can be interpreted differently

Use of Evidence:

● For evidence to be admissible it needs to be relevant and obtained legally by the crown

● The different forms of evidence are witness testimony, real evidence (tape recordings, charts, photographs, etc.) and documentary evidence (documents from the crime scene)

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● Anyone who witnessed a crime or was interviewed by police may be subpoenaed to appear later in court

● The witness will be cross examined by both sides of the adversary system ● An expert witness may be called who is qualified in a specific area

Assess the use of defences to criminal charges in achieving justice Defences to Criminal Charges:

● Most defences revolve around the mens rea of the offence ● Defences help achieve justice because it considers the accused actions surrounding

the crime ● A defence can simply be innocent of the alleged charges

Complete Defences:

● If successfully proven, the accused will be acquitted of all charges in the trial Mental Illness/Insanity:

● A defence that is only available where the accused can prove that they were in fact mentally incapacitated when they committed the offence

● This relates to proving a lack of mens rea ● The defence of insanity is very difficult to prove ● The McNathen Test 1843 is used to prove whether the accused can use insanity

Involuntary Behaviour: ● Relating to the mens rea of the accused – that the accused’s action were not

voluntary or could not be controlled ● Mens rea cannot be established under this defence

Self-Defence/Necessity: ● The accused can show they carried out a crime in the act of defending themselves or

property ● Jury is compelled to either acquit the defendant or find them guilty of the crime ● R v. Zecevic (1987) must believe their life was threatened

Duress: ● The defendant may be acquitted if they can show they acted against their will under

lawful pressure (e.g. held at gunpoint to commit murder) ● R v. Williamson (1972) – the defendant disposed of a body while under death threat

Consent: ● Complete defence for some crime if the accused can show the victim freely

consented to the act in question (e.g. sexual assault) ● This cannot be used for crimes such as murder

Partial Defences to Murder:

● Mitigating circumstances that caused them to carry out the act. This may reduce the sentence or even acquit the accused

● A good example is a murder charge downgraded to manslaughter Evaluate the effectiveness of the jury system in the criminal trial The Role of Juries:

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● Juries are a central part of the adversary system of criminal law ● They reflect the historic right of an accused person to be judged impartially by a

group of peers, based on evidence ● In NSW, juries are used to hear most indictable offences where a plea of ‘not guilty’

is entered, and may be used in either the District or Supreme Court ● A jury is a panel of citizens, selected at random from a list compiled from the

electoral role, whose job it is to determine the guilt or innocence of the accused based on the evidence presented to them at trial

� Their decision is called a verdict Challenging Jurors:

● Both the prosecution and the defence have the right to challenge either the selection of the entire panel of jurors, or individual jurors

● Both sides can also exercise a certain number of peremptory challenges of prospective jurors

� This is when they disqualify individual jurors without having to give a reason ● Challenges for cause are challenges based on the person not being qualified to serve

on a jury – through being ineligible or because of being suspected of bias Eligibility for Jury Duty:

● Australian citizens aged 18 years or older become eligible to sit on a jury once they are on the electoral roll

● Jurors are paid for their attendance on the jury and all employers are required to give leave to their employees

● If you fail to attend jury duty when requested, you can face a $1100 fine from the Justice Office of the Sheriff

Jury Role: ● Before a case begins, Jurors are sworn in ● The jury listens to evidence presented, apply the law as directed by the judge and

come to a verdict ● They must be unbiased and judge solely based on evidence ● They must remain fair and open-minded

Verdict: ● A jury has to reach a verdict of guilty or not guilty and present that verdict to the

court ● The accused will then be acquitted of found not guilty or sentenced by the judge if

found guilty ● A jury that is unable to reach a verdict is called a ‘hung jury’. In this case, the case is

dismissed and a retrial will be ordered

4. SENTENCING AND PUNISHMENT Statutory and Judicial Guidelines:

● The Crimes (Sentencing Procedure) Act 1999 (NSW) is the primary source of sentencing law

● Maximum penalties are described by parliamentary legislation ● Judicial discretion – the power of a judge or magistrate to make a decision within a

range of possibilities ● Judicial officers can be guided by former judgements where similar facts have arisen

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● Mandatory sentencing – removal of judicial discretion, by setting a minimum or mandatory sentence for a particular offence

Purposes of Punishment: Deterrence:

● Specific Deterrence = Punishment against an individual offender aiming to deter them from committing crime in the future

● General Deterrence = Punishment attempting to make an example of an offender in order to send a message to the rest of the community

Retribution:

● An objective of sentencing, designed to reform the offender to prevent them committing offences in the future

● Recidivism = habitual or repeated lapses into crime (e.g. drink driving course, drug rehabilitation)

Incapacitation:

● To make an offender incapable of committing further offences by restricting their freedom

● Home detention, licence cancellation and imprisonment are types of detention Case Examples:

1. Former NSW business owner sentenced to 15 months home detention for failing to build motorhomes – heard in the Parramatta Local Court

2. Keli Lance Case: ● Keli Lane was convicted of the 1996 murder of her new-born baby, Teagan,

and three counts of lying under oath Discuss the factors that affect sentencing decisions Factors Affecting the Sentencing Decision: Aggravating Factors:

● Circumstances that make the offence more serious and can lead to an increased sentence

● Gratuitous Violence = excessive amounts of violence carried out without reason, cause or excuse

Mitigating Factors: ● Circumstances that make the offence less severe and can lead to a reduced sentence ● Remorse = deep regret or sorrow for one’s wrongdoing

Factors Affecting the Sentencing Decision: Objective Factors:

● Circumstances of the crime Subjective Factors:

● Personal state of mind of the offender

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● Whether the accused pleaded guilty ● Whether the offender assisted law enforcement authorities ● Victim impact statement from victim of the offence

The Role of the Victim in Sentencing: Victims can:

● Report the crime ● Testify at the trial and submit a Victim Impact Statement

● Victims of crime are recognised under the Victims’ Rights Act 1996 (NSW) ● Victim Impact Statements are only used for serious crimes (e.g. sexual assault)

POSITIVES NEGATIVES ● Opportunity for the victim to express

themselves in the criminal process ● Allows victims to express their grief and

anger publically ● Improves the justice of the victim

involved in the crime

● Can be very subjective yet have a significant effect on sentencing

● Reduced sentences are given to offenders in family deaths because they loved them

● Reduces objective factors in the decision Appeals:

● Appellant = in an appeal case, the party who is making the appeal ● The Crown can also appeal against a conviction or sentence ● Two types of appeals:

1. Appeal Against Conviction = Problems that may have existed with the prosecution case

2. Sentence Appeal = Severity of the sentence (offender) or leniency of the sentence (prosecution) e.g.

Bilal Sake Case Case Example: ‘Facebook serial rapist jailed for despicable sexual assault spree’, SMH 2016

● Convicted of 21 counts of rape in the District Court ● Sentenced to 40 years in prison ● Of the 14 victims, 3 read their Victim Impact Statements, which had a huge impact

upon the sentencing ●

Evaluate the effectiveness of different types of penalties Types of Penalties: Caution:

● Formal warnings without charge issued by police for less serious offences ● E.g. Young Offenders Act 1997 (NSW)

No Conviction Recorded:

● When an offender is charged, and found guilty of the crime but it is not recorded

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Criminal Infringement Notice: ● Issued by the police outside of court alleging a criminal infringement and requiring

payment of a crime Bond:

● Compulsory condition imposed on the offender for a period of time, which the offender undertakes to comply with

Fines:

● The most common sentencing option used in Australia ● A fine is a monetary penalty imposed on an offender and usually applied for less

serious crimes Penalty Units:

● Specified unit of money used in legislation to describe the fine payable Forfeiture of Assets:

● Loss of rights to property or assets as a penalty for wrongdoing Probation:

● Good behaviour bond where the offender is released on condition of good behaviour but placed under some form of supervision

Community Service Order:

● The offender is sentenced to serve specified hours of work in the community Home Detention:

● Imprisonment sentence where the offender is confined to their home under certain conditions of monitoring

Imprisonment:

● The most severe sentence that can be imposed in Australia ● Considered a sentence of last resort ● BOSCAR, 2016 = 42.3% reoffend prison is not an effective measure in the

rehabilitation of prisoners and in reducing recidivism rates. ● It costs $110,000 per year, per prisoner in NSW.

Periodic Detention:

● Imprisonment sentence where the offender spends a period or each week of month in prison and the rest of the time at home – ceased in 2010

Intensive Correction Order (ICO):

● Strict supervision by Corrective Services NSW for a period of up to two years � 24/7 electronic monitoring, curfews � Mandatory testing and rehab programs

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Diversionary Programs:

● Alternative to the traditional court system, diversionary programs focus on therapeutic justice and rehab of offenders

● Meant to deter people from correctional facilities Assess the role of alternative methods of sentencing: Alternative Methods of Sentencing: Circle Sentencing:

● Sentencing for some adult Aboriginal offenders where sentencing is conducted in a circle of local community members and a magistrate

● To make it more meaningful to the offender and improving Aboriginal confidence in the criminal justice system (access)

● Aims to reduce recidivism rates Restorative Justice:

● Sentencing involves a voluntary conference between the offender and the victim of the crimes

● Offender is given the opportunity to apologise or make amends for their act ● Highly effective for the rights of the victim and used through youth justice programs

Examine the implications of post-sentencing considerations in achieving justice Post-Sentencing Considerations:

● When sentencing to imprisonment, offender will be given a security classification ● Crimes (Administration of Sentences) Act 1999 (NSW)

Security Classification:

● Four classifications: 1. Supermax security (Goulburn) 2. 8 maximum security (Goulburn – males, Silverwater – females) 3. 13 medium security (Tamworth) 4. 10 minimum security

Protective Custody:

● Provided to offended who are suspected of attacks from other prisoners � Offences against children

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� Police officers � Politicians � HIV/AIDS prisoners � Given information about other prisoners

Parole:

● Conditional release of a prisoner from custody after the completion of the minimum term of the sentence

● When released on parole, the parolee needs to meet a parole offer to maintain their conditions, which can include:

� Good Behaviour Bond � Not reoffending � Gaining employment � Avoiding company or a specified area

Preventative Detention:

● Detention of a person in custody without having committed any offence, in case of some future harm they may commit

● There are two types: 1. Preventative Detention Without Charge:

� Unconstitutional in the High Court case of Kable v. DPP (1996) � Terrorism (Police Powers) Act 2002 (NSW) enacted the legislation � Decreases the accused rights

2. Post-Sentencing Preventative Detention: � Crimes (Serious Sex Offenders) Act 2006 (NSW) � Continued detention can be applied by the Attorney General if there

is a strong possibility that they will reoffend Sexual Offenders Registration:

● Established under the Child Protection (Offenders Registration) Act 2000 (NSW) ● Minimum of 8 years for adult offenders, 4 years for juveniles ● 2009 over 10,500 offenders registered nationally

Deportation:

● Non-Australian citizens who are convicted of a criminal offence ● Applies to offender with a sentence of more than 12 months but not served more

than 10 years

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5. YOUNG OFFENDERS Discuss the issues surrounding the age of criminal responsibility Age of Criminal Responsibility: Reasons for young people to be involved in crime:

● Poor parental supervision ● Drug and alcohol abuse ● Neglect and abuse ● Homelessness ● Negative peer associations ● Difficulties in school and employment

Reasons why young people are treated differently to adults:

● Preventing children and young people from being exploited ● Protecting them from the consequences of making uniformed decisions ● Protecting others from being disadvantaged by dealing with a person who is a minor

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Doli Incapax:

● “Incapable of wrong’ ● The presumption that children under a certain age cannot be legally held responsible

for their actions, and cannot be found guilty of an offence ● Under common law, this is known as a rebuttal presumption, which means that the

presumption was that the child could not have committee the offence, unless the prosecution can prove beyond reasonable doubt that the child was capable of understanding the impact of their actions, or what they were doing

● In Australia, the age of criminal responsibility is 10 ● Absence of mens rea (the criminal intent) is set out in the Children (Criminal

Proceedings) Act 1987 (NSW) Children under 10 years:

● The Children (Criminal Proceedings) Act 1987 (NSW) sets out the minimum age of criminal responsibility, with section 5 stating that;

� “It shall be conclusively presumed that no child who is under the age of 10 can be guilty of an offence”

● Thus, for children under 10, doli incapax is a conclusive presumption, which means that a legal presumption in favour of one party that is final and cannot be rebutted by the other party

Children between 10-13 years:

● The prosecution is able to use rebuttal presumption to prove beyond reasonable doubt that the accused knew of their actions

Young people 14-17 years:

● Doli incapax no longer applies ● Young people under 16 cannot have a criminal conviction recorded against them ● Matters will be heard in the Children’s Court

Case Example: R v. LMW (1999):

● A 10-year-old was accused of manslaughter after he dropped another boy, 6-year-old Corey Davis, into the Georges River, knowing that he could not swim Corey drowned and the DPP bought forward the charge of manslaughter

● The case was taken to the Supreme Court of NSW ● LMW was the youngest person to face the Supreme Court and the youngest in

Australia to be charged with manslaughter ● The case was acquitted after 18 months, with the presumption of doli incapax ● The prosecution argued that LMW had and was capable of forming criminal intent,

and that he understood the consequences of pushing Davis in the river ● The defence argued that it was a childish prank that had gone wrong and the he did

not understand the consequences of his actions

AGE CRIMINAL RESPONSIBILITY

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0 – 9 years Cannot be charged with a criminal offence. Children under 10 are viewed as insufficiently mature to commit criminal offences.

10 -13 years Rebuttable presumption of doli incapax. Presumed not capable of committing an offence, but the prosecution may prove capacity with sufficient evidence.

14 – 16 years Criminally responsible for any offence committed, but no conviction can be recorded, unless it is a serious offence.

16 – 17 years Criminally responsible for any offence committed, and a conviction may be recorded. The case will still be heard in the Children’s Court.

18 years or older Full adult criminal responsibility, with case to be heard in adult courts.

Explain why young offenders are treated differently in the criminal justice system The Rights of Children When Questioned or Arrested: Questioning of Young People:

● Some examples when a child must answer to police include: � Where the police officer suspects on reasonable grounds that the person can

assist them in investigating an indictable offence committed nearby � Situations relating to vehicles and traffic � Where a person is suspected of committing an offence on a train

● Children have the right to silence when questioned by police Right to Support of a Responsible Adult:

● Under section 13 of the Children (Criminal Proceedings) Act 1987 (NSW) a responsible adult must be present, otherwise evidence may be deemed inadmissible

Searches:

● Police search powers for children and young people are largely the same as for adults, apart from strip searches

� Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), section 10, police can never perform a strip search on a child under 10

Legal Aid:

● People under the age of 18 are entitled to free legal advice from Legal Aid NSW ● Police must inform them of their right to seek Legal Aid NSW, and give them the

opportunity to do so Arrest and Interrogation:

● Law Enforcement (Powers and Responsibilities) Act 2002 (NSW): � Police are allowed to use reasonable force on a young person to arrest them

● Arrest and interrogation are similar to adults, however extra warning of young person’s rights need to be given

● If a young person or child is arrested, police must find out details of the person’s parent or guardian as soon as possible and contact them

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● They must have a support person present during a police interview Detention and Identification:

● For children under 14, police must apply to the children’s court in order to take finger prints and photographs

● DNA samples, fingerprints and photos are to be destroyed if the criminal matter is not proven in court

● NSW has the highest conviction rate of young offenders ● They have the same period of detention as for adults, however a shorter period is

strongly recommended Case Example: R. CKT 1999

● The police conducted an interview with a murder suspect without the presence of a supporting adult, believing he was over 18 years of age, only to find out later that this was not the case

● Therefore, evidence gained during the questioning could not be admitted into court Children’s Court Procedures and Operations:

● Established in 1987 ● No jury ● Hears any offence other than a serious indictable offence committed by a child ● Follows procedures from the Children’s (Criminal Proceedings) Act 1987 (NSW) ● Children’s Court is a local specialised court ● Children may often commence with minor crimes ● The 10 – 14 age group has shown a significant increase since 2003 ● Large cases involving males throughout all age group are increasing ● Under section 11 of the Children (Criminal Proceedings) Act 1987 (NSW), it is an

offence to publish or broadcast the name of a child involved in criminal proceedings, unless they are deceased

Penalties for Children:

● Purpose of rehabilitation is given primary weight, consistent with CROC ● Penalty imposed on a child shall be no greater than that of an adult for the same

offence ● Children should be assisted with reintegration into the community ● Children accept responsibility for their actions and if possible, make reparations for

them Types of Penalties:

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Dismissal The court can dismiss the charge without punishment or conviction, but may decide to issue a caution to the offender

Conviction For young offenders, the court can decide whether to record a conviction or not, but for children under 16, no conviction can be recorded

Bond The child can be released on a good behaviour bond for up to a maximum of two years

Youth Justice The child can be released subject to the child complying with a youth justice conference outcome plan

Fine A fine of up to 10 penalty units ($1100) can be imposed, but the court must take into account the child’s age and ability to repay it

Probation A bond with a probation order of up to two years can be imposed, overseen by an officer of Juvenile Justice

Community Service Order

A community service order is a severe penalty, and can be made for up to 100 hours if the child is under 16, and up to 250 hours if they are over 16

Control Order

A control order is the most severe penalty, and is similar to an adult sentence of imprisonment, except it involves detention in a Juvenile Detention Centre. The maximum time a child can be sentenced to a control order is 2 years

Juvenile Detention Centres:

● Maximum time served is 2 years ● Provides educational and recreational facilities ● Juvenile Detention Centres are covered by the Children (Detention Centres) Act 1987

(NSW) Sentencing Considerations for Young Offenders:

● Consider fines in light of the offender’s ability to repay it ● Community Service Orders would be more beneficial

Alternatives to Court:

● The primary diversionary program is the Young Offenders Act 1997 (NSW): � Warnings, cautions and Youth Justice Conferences

● Department of Juvenile Justice Community Services (DoJJ) � Support for juveniles that have problems seeking bail and have been placed

on remand ● Youth Drug and Alcohol Court Program (YDAC)

� Diversionary program instead of custody � Run by NGO’s � Non-compliance will lead to incarceration

Warnings:

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● A warning is an official notice given to a young offender by an investigating officer, without any conditions attached

● Relatively informal, but offender must be told the nature, purpose and effect of the warning

● It cannot be given for an act of violence, a repeat offence or at the discretion of the investigating officer

● A record of the warning must be kept Cautions:

● A formal, recorded alternative to prosecution where the young offender admits to the offence ad consents to receiving a formal police caution

● When deciding on a caution, the officer will consider the severity of the offence, the harm caused by it and any prior offences

● The young offender must be told the nature and effect of the caution and must sign an ‘offender notice’

● A court must make record of the caution Youth Justice Conferences:

● The purpose is to allow the offender to take responsibility for their actions and to provide them with appropriate support services

● Aim is to make decisions that respect the offender’s rights ● They hold the offender accountable, and empower families and victims to achieve

justice ● Those able to participate in the conference include:

� The offender � A conference convenor � An investigating official � A member of the offender's family � The offender’s legal representation � A specialist youth officer � The victim (and their support person)

Assess the effectiveness of the criminal justice system when dealing with young offenders Legislation has passed to protect and improve the rights of children in the criminal justice system:

● Children’s (Criminal Proceedings) Act 1987 (NSW) ● Young Offender’s Act 1997 (NSW)

� Deterring children away from custodial sentences � Youth Justice Conferencing has been seen as more effective than

incarceration Areas in the syllabus for young offenders:

● Arrest and charge ● Bail and remand ● Rights of the accused ● Legal aid and representation

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● Purposes of punishment (diversionary programs, rehabilitation and restorative justice)

6. INTERNATIONAL CRIME Define international crime Categories of International Crime: Crimes Against the International Community:

● Crimes that have universal concern. There is no fully agreed list of crimes ● Such crimes as genocide, war crimes, piracy (at sea), hijacking of aircraft and slave

trading ● Universal jurisdiction = where a state clams a rare right to prosecute a person for

actions committed in another state, based on the common international opinion that the alleged crime is so serious that normal laws of criminal jurisdiction do not apply

Transnational Crime:

● Crimes that take place across international borders ● Includes fraud, hacking or drug trafficking, internet crimes, terrorism, trafficking child

pornography, etc. ● Causes of transnational crimes include:

� Differences in socio-economic conditions between countries � Country that prohibits products � Difference in political or ideological viewpoints

Describe the various measures used to deal with international crime: Dealing with International Crime: Domestic Measures:

● Crimes committed abroad are limited by jurisdiction ● Signing and ratification of the Rome Statute

� Australia has passed the International Criminal Court Act 2002 (Cth) to comply with international law

● The ICC is seen as a last resort court and is a supplement to the Australian Legal System

Australian Federal Police =

● The AFP plays a significant role in combatting transnational crimes ● The AFP has increased due to the rise in international crime

� Areas include child protection, terrorism operations, and stopping human trafficking and drug operations

Other agencies involved in addressing international crime in Australia =

● Commonwealth Attorney General’s Department ● Australian Crime Commission ● Australian Customs and Border Protective Services

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● Australian High Tech Crime Centre International Measures:

● Geneva Conventions and the Rome Statute of the International Criminal Court are the main developments

International Criminal Court =

● Established in 2002, The Hague ● Rome Statute of the International Criminal Court or Rome Statute is the treaty that

founded the court ● 110 state parties to the ICC, 18 judges from around the world ● 3 main categories of jurisdiction:

1. Genocide 2. Crimes against humanity 3. War crimes

● The ICC only has jurisdiction when: � The accused is a national of a member state of the treaty � The alleged crime occurred in the territory of a member state � The situation is referred to the ICC by the UN Security Council

● Punishments that the court can impose include: � Life imprisonment � Forfeiture of assets

● The ICC will decide which prison the offender will be sent to ● Matters heard in the ICC include the situations in:

� Uganda � Dafur, Sudan � Central African Republic � Congo � Kenya

Extradition Measures:

● Developed through bilateral agreements between two countries ● Australia has signed over 130 treaties with other countries ● In Australia, extradition is governed by the Extradition Act 1988 (Cth)

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