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Legal Studies: Crime Summary Notes 2015

1. The Nature of Crime

The meaning of crime
Crime any act or omission of duty that results in harm to society and which is punishable by the state.
Must be an act that breaks the law, seen as harmful to community
Beyond reasonable doubt the standard of proof required in a criminal case for a person to be guiltyThe Crown is the state party who commences a criminal action in a court of law against the offender.
NSW- commenced by the Director of Public Prosecutions
The State- the government and the people that it governs
Elements of a Crime
o To find someone guilty of a criminal act it is necessary to prove: mens rea, actus reus and
o Mens Rea the guilty mind, it refers to a persons intention to commit crime. There are three
main levels:
o 1. Intention- a clear, malicious or wilful intention to commit the crime- highest and most difficult
level of mens rea for the prosecution to prove
o 2. Recklessness- when the accused was aware that the action could lead to crime being
committed- chose to take the course of action anyway
o 3. Criminal negligence- this is when the accused fails to see the danger present in their actions
leading to the death or injury of others
o CASE: R v Thomas Sam; R v Manju Sam
o Couple charged with man-slaughter by criminal negligence through their nine-month-old
child suffering from eczema
o Father had higher duty of care- trained homeopath
o Failed to seek appropriate medical treatment- child crying in pain with broken skin oozing
fluid- suffered and died
o Parents found guilty of manslaughter and sentenced to imprisonment
o Appeal- both sentences increased- father = 8yrs imprisonment and mother = five years and
four months
o Actus Reus the act element, it refers to the physical performance of the criminal act. It must be
proven that the person actually carried out the act, not just thought about it.
Strict Liability Offences
o The element of actus reus will need to be shown in such offences
o Prosecution must prove the offender carried out the act- not required to show criminal intent
o E.g. speeding offences- police must show that the person breached laws not intended it
o Applied to offences due to administrative advantages- assist in dealing with everyday offencesonus on society to comply with law
o Defence to strict liability possible if accused can prove it was a reasonable mistake


Legal Studies: Crime Summary Notes 2015

Causation the prosecution must prove that there is a causal link between the accuseds actions
and the crime committed; that the act was the substantial cause of the crime. Must have caused
specific injury and easily established
o CASE: R v Munter [2009]o Todd Munter charged with manslaughter after punching 66-year-old Ken Proctor over
o No intention to kill Proctor- courts deemed that death caused by unlawful assault of
accused convicted of manslaughter

Categories of Crime
o Categories affect the way an offence is investigated, prosecuted or punished- includes:
o 1. Type of offence i.e. drug offences, economic offences
o 2. Jurisdiction whether it is a NSW or Commonwealth offence
o 3. Seriousness of offence summary or indictable offence
o 4. Parties to crime who is involved and whether principal offender had any assistance
Offences against the person
o Homicide the unlawful killing of a person. The judge must determine that there is a causal
relationship between the actions of the accused and the harm caused to the victim.
Murder the deliberate killing of a person; there was a deliberate act designed to cause
serious harm during which death occurred; or there was a reckless indifference to human
life which resulted in death.
Manslaughter killing of a person where the accused had not intended death- punishable
by up to 25 years imprisonment. Three main types:
1. Voluntary- killing where accused had intent- reckless about killing someone- are
mitigating circumstances (considered by the court when determining guilt or
innocence; do not justify offence but reduce charge i.e. provocation- the offence was
committed due to another party causing them to lose control that may result in an illegal act
such as murder due to rage, anger or resentment
2. Involuntary- occurred because accused was reckless or negligent- no intention to kill the
3. Constructive- killing of a person while accused was carrying out another dangerous or
unlawful act i.e. assaulting someone but death results
Infanticide the homicide of an infant who is under the age of 12 months, by their mother.
Crimes Act 1900 (NSW)- court take into account state of mind of mother before issuing
sentence- any issue such as depression- mitigating circumstance

o Assault Causing physical harm or threatening to cause physical harm to another person. The law
makes no distinction between the threat and actual application of force

Legal Studies: Crime Summary Notes 2015

Aggravated Assault a special type of assault where there is the intention to cause very
serious harm, the use of a weapon, or the threat to contaminate another person with a
disease like AIDS.
Sexual Assault the unlawful sexual contact by a person on another without their
permission. Max penalty: Up to 14 years
Aggravated Sexual Assault where there is a high degree of violence involved in the
sexual assault, or the victim has a serious intellectual/physical disability.
Offences Against the Sovereign
These are offences in which the accused is targeting the state (government); protect state to promote
stable government.
o Treason activities, which undermine the government by passing on information to other
governments etc.
o Sedition The inciting of public unrest with the aim of bringing down the government; the act of
encouraging hatred or contempt for the government.
Economic offences

Crimes against property

o Larceny (theft) the removal of another persons property without the consent of the
owner, and with the intention of permanently keeping them.
o Breaking and Entering When a person illegally enters a building in order to commit an
o Robbery the taking of a persons property directly from them or from their vicinity;
theft accompanied by force or the threat of force.


White Collar Crime

o Tax Evasion- attempt to avoid paying full amount of tax by concealing or underestimating
person or businesss income/assets
o Insider Trading where a person with special knowledge of a company uses that
knowledge to buy or sell shares.
o CASE: R v Rivkin (2003)
o Guilty of insider trading- Rene Rivkin: entrepreneur, investor and stockbroker
o Told confidential info by company exec. Before purchasing shares in Qantas 2001price of shares would rise once info was publicised
o Resulted in profit of $2662.94- convicted and sentenced to 9mnths periodic week
detention- stockbroker license banned
o Embezzlement when employees in a business steal by falsifying business accounts
while they use the business finances for personal gain.

Computer Offences
o Include crimes related to hacking and unauthorised access or modification of data

Legal Studies: Crime Summary Notes 2015

o Crimes Act 1900 (NSW)- modification or impairment of restricted data, impairment of electronic
communication or unauthorised access to data with intent of committing offence
o Some may be committed by employee of target company or by outsider hired
o Fraud: deceitful or dishonest conduct carried out for personal gain
o Types of fraud: identity theft, internet phishing (posing as legit website), requesting funds or
account details by email under fraudulent pretences, technology fraud using ATM
Drug Offences
o Relate to acts involving prohibited or restricted drugs
o Drug Misuse and Trafficking Act 1985 (NSW) outlines offences related to drugs
o Supply of prohibited drug- including offering or agreeing to supply whether or not actual drug or
money changed hands; drugs in possession for purpose of supply
o Cultivation The act of sowing, growing or harvesting a narcotic plant. You can be charged if
you cultivate a deal-able quantity or intend to sell some.
o Possession to be caught with enough illegal drugs for personal use only
o Usage intentional consumption of the drug by any means
Driving Offences
o Most commonly committed offences in NSW
o Included under Road Transport (Safety and Traffic Management) Act 1900 (NSW)
o Police enforce and process offences through on-the-spot fines
o Regulated by the NSW Roads and Traffic Authority- demerit system
o Exceeding speed limit
o Driving without licence or ignoring road signs
o Driving above legal blood alcohol limit of 0.05
Public Order Offences
o Acts that disturb the public order such as disturbance in public area
o Listed in the Summary Offences Act 1988 (NSW)
o Acts deemed as inappropriate by society
o Include: obscene indecent language in public, possessing a knife in public place, obstructing
traffic or ignoring police orders
o Damaging public buildings and facilities
o Affray: threatening to use violence towards another that would cause person to fear safety
o Riot: 12 or more people using/threatening to use unlawful violence for common purpose

Preliminary Offences

Legal Studies: Crime Summary Notes 2015

o Attempt: offence where principal crime was attempted but failed for some reason despite intentconsidered crime- can be charged, may carry lower penalty. If someone aimed to shoot another
and missed can be found guilty of murder
o Accused may have reason for conduct
o CASE: R v Whybrow (1951)
o Husband connected electricity to soap dish in family bath to electrocute wife- did not work,
only received shock
o Court found guilty of attempted murder because of intention
o Conspiracy: 2 or more people plot to commit crime together- act of planning and prep. Of a crime
constitutes conspiracy- difficult to prove without confession, signed doc., phone tap
o If two sisters plan to kill a brother but do not commit the crime sisters who planned could be
found guilty of conspiracy
Regulatory Offences
o Going against regulation
o Minor offences that arent always considered to be crimes e.g. jay walking
o Set by govt. department or agencies responsible for area of law and policy that require frequent
o E.g. watering garden despite water destructions
o Travelling on public transport without valid ticket
Summary and Indictable Offences
o Summary offence- Less severe offences heard and sentenced by a magistrate in the Local Court
not tried in front of a jury. E.g. driving offences and offensive behaviour
o Penalties include bond or fine, jail sentences of up to 2 years
o Indictable offence More severe offences heard and sentenced by a judge in a District Court or
tried before a judge and jury; murder, sexual assault, theft, etc.
Parties to a Crime
Principal in the First Degree: They actually carried out the crime perpetrator; key instigator; harsh
Principal in the Second Degree: Assist and encourage the principal offender to commit offence E.g.
Guards the door, clears the path, drives the getaway car.
Accessory Before the Fact: This is a person who helped to plan the crime. The planning can involve: the
gathering of the opening and closing times, floor plans and maps, and the names of the attendants.
Accessory After the Fact: Helps after the act but is not present during the event or aware of the event
until after. Lesser punishment

Factors Affecting Criminal Behaviour

Legal Studies: Crime Summary Notes 2015

Psychological Factors
o Many forms of mental illness affecting persons behaviour may be reason for crime
o Important during criminal process- accuseds state of mind is considered when sentencing
o Relevant during sentencing and sentencing programs- drug rehabilitation programs focusing on
psychological rehabilitation
Social Factors
o Family situation or personal relationships influence criminal activity
o Social group- influence attitude and views of acceptable behaviour
o Environment individual is raised in e.g. abusive home, trauma = more prone to criminal activity
o The theory of differential association states that a person who is exposed to an environment where
criminal behaviour is normal, is more likely to become a criminal.
Economic Factors
o Most substantial reason for committing of crimes in NSW
o Disadvantaged background more likely to commit crime
o 1/3 of male and of female offenders receive welfare or govt. payment as source of income
o Poor education, lack of skills related to economic factors
o Offenders in this case may commit crime for economic benefit such as robbery, larceny, etc.
Genetic Theories
o It has been theorised that criminals are born, not made. It is possible that some people commit
more crimes than others because of their genetic make-up. However, other factors are much more
Political Factors
o Groups in society will challenge the authority of the government and therefore the laws of that
government. Sometimes this politically motivated criminal activity is considered justifiable.
o Public order offences may be connected to politically motivating factors
o E.g. annual protests at G8 Summit/ protests at 2009 Copenhagen Climate Change Conference
Self- Interest
o Usually plays role as motivating factor in committing a crime
o Motivations of money or power may play a significant role in committing the offence
o Crime is committed for own personal profit such as money gained through embezzlement

Crime Prevention

Legal Studies: Crime Summary Notes 2015

o Situational Crime Prevention involves making it difficult for criminals to commit criminal acts
either by increasing the risk of being caught, making crime more difficult to perpetrate, or making
the crime less rewarding. E.g. good security system and locks prevent thievery, parents
disallowing children to go to a party to prevent hazardous situation, tech. such as surveillance
cameras prevent looters.
o 1. Planning & Architectural Design- influence of physical environments on crime i.e. adding bars
or alarm system at home
o 2. Focused (situational) approach- views offenders as actors who weigh up potential risks, costs
and gains i.e. use colour tags attached to clothing in shops that set off detectors at door
o Social Crime Prevention attempts to reduce the factors that are likely to cause a person to
commit crime
o Education about laws, how they function and why acts are illegal prevention through early years
o Providing employment or income through govt. departments prevent crime such as robbery and
theft wont feel the need to resort to crime
o Funding to put educational programs in schools to raise education levels of students
o Youth programs run to teach dispute resolution skills and social skills to reduce number of
potential offenders
o E.g. Police Youth Leadership Program

2. The Criminal Investigation Process

Legal Studies: Crime Summary Notes 2015

Police Powers
o Responsibility for enforcing criminal laws and ensuring they are adhered to lies with the policemake enforceable legal decisions and judgements
o Role of police is to investigate crimes, make arrests, interrogate suspects and gather evidence
o Challenge is to balance extent of powers required by police against the rights of ordinary citizens
o Main police powers include:
o 1. Detain and question suspects
o 2. Search property and seize evidence (search and seizure)
o 3. Use reasonable force if necessary
o 4. Use particular technologies to assist investigation i.e. phone taps, surveillance, DNA
o 5. Arrest and interrogate samples
o 6. Recommend whether bail should be granted
o May need to seek a warrant from court to use particular power to ensure power is used
appropriately and is not abused
o Ability to cross-reference details of person of interest (criminal history, gun licence, mental illness,
etc.) through COPS 1994 system
Role of Discretion;
o Police decide areas to patrol, which crimes to target and which reports to investigate
o Lack of resources affects accuracy of investigation e.g. easier to find crime in poor socioeconomic
o Discretion also applies to decisions made by individual officers decide whether to investigate
certain behaviour, charge suspect or let young offender go without caution
o May be influenced by race, appearance, family background, etc.
For idea of Police having too much power
- Not all crimes have increased
- Loss of basic rights such as privacy through
phone tapping
- Does not alter causes of crime such as social and
economic factors, drug abuse, etc.
- Power to detain without charge an infringement of
basic human rights

Against idea of police having too much power

- Need power for increasing crimes
- Wider powers to detect/ investigate crimes and
keep up with complex technology
- Citizens tempted to take into own hands if police
do not exercise enough power
- Useful when suspecting terrorist behaviour

Reporting crime
o Victims and witnesses use their discretion to discern whether or not to report crimes

Legal Studies: Crime Summary Notes 2015

o Community programs have been established to help citizens fulfil their role in reporting a crime
o Crime Stoppers encourages people to report info on unsolved crimes or unknown offences, or
suspicious or unusual activity
o Many do not report crime for various reasons: do not want to be involved as witnesses, fear of
consequences if reported, inability to report crime, etc.
o Some are widely reported than others such as property offences like car theft
o Domestic violence hardly reported due to shame or embarrassment
o Approx. 50% of women do not report DV (BOCSAR)
Investigating crime
Gathering evidence
o Evidence Act 1995 (NSW)- must be obtained in proper and lawful manner
o Limits on the way police gather evidence and type that can be used
o Strict procedures need to be followed by police- court warrant required
o Evidence includes testimony of accused, police and witnesses, physical evidence, etc.
o Police may be specially trained for the job of taking evidence
o Interview possible witness, collect list of stolen property, gather physical evidence
o Role of police to gather evidence to support a charge (formal accusation)
o Involves taking witness statements at the scene of crime or detectives looking at evidence left
o Must happen quickly- witness may forget what they saw/heard or before it is compromised
o Inadmissible evidence cannot be considered by judge or jury in court if it has been contaminated,
compromised or tampered
Use of Technology
o Crimes (Forensic Procedures) Act 2000 (NSW) suspects, volunteers and people convicted may
be tested decided after R v Fernando and Fernando [1995]; allowed to take samples such as
blood or mouth swabs
o Advancements in technology have allowed police to carry systematic and convenient investigation
o Scientific and technological advances have made processing and crosschecking of databases easier
o Person must consent to sample- police can apply for using reasonable force to take sample through
o Police surveillance (police use deterrence) teams able to record video footage and audio using
digital methods R v Gittany [2013]
o Cybercrime units use technology to track criminal activity through Internet to prevent computer
offences; can take sample by reasonable force after obtaining order from magistrate

Search and Seizure

o The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)- procedures for police to
follow when conducting personal search or strip search- respect dignity
o Limits and process requirements protect rights of an individual when gathering evidence

Legal Studies: Crime Summary Notes 2015

Search people, places, motor vehicles and seize/take evidence
Can search anyone suspected of stolen property or anything intended to be used to commit crime
Wide power to ensure community is out of harms way
Can search people and seize and detain things in certain circumstances- have power to search and
seize without court warrant
o Represent intrusion into peoples privacy or personal space
o Can start a warrant if they believe there is something suspicious about an individuals behaviour
o May search things such as persons body, bag, clothes or possessions

Use of warrants
o Legal document issued by magistrate or judge authorising police to conduct arrest, search, seize
property or phone tap
o NSW police can use sniffer dogs without warrant to search for drugs at pubs or clubs- require
warrant to use dogs in other public places
o Helps ensure police power is used appropriately to protect the rights of the community and to
prevent misuse of power
o Police must present reasons for warrant- emergency warrants obtained over phone
o NSW police required to have valid warrant before they can enter and search premises
o Copy of warrant given to occupier- may also videotape the search to use in court and to prevent
improper procedures of planting evidence
o Remove items relevant to investigation- withheld until case is completed
o Weapons, drugs, etc. used as evidence in trial
o Custom warrant: can conduct search at any time where drugs may be involved; can use
reasonable force
Arrest and charge, summons, warrants
Arrest and charge
o Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)- must declare why under
arrest, why he or she is being arrested, given consent to do so; contains conditions under which
police can lawfully arrest person;
o Catch suspect committing offence
o Believe on reasonable grounds that suspect has committed or about to commit offence
o Where person committed serious offence has not been tried
o Possessing warrant for persons arrest
o Warrants provide safeguard for ordinary citizens against misuse of police powers- last resort
o Arrests deemed to be applied too early in investigative process
o Police must state why person under arrest- protect rights of individual to know
o Can use reasonable force to arrest- shooting permitted extreme cases
o Police must either charge suspect or release unconditionally
o If charged- bring before magistrate or authorised officer after detention period- brought before
court for bail hearing
o Police exercise discretion: lay criminal charges against arrested person

Legal Studies: Crime Summary Notes 2015

o A legal document that states when and where person must appear in court, and if they are accused,
the charge to which they must answer
o Witness also receives summon document- appear in court specified date as evidence
o Failure to attend result in summonsed person arrested and charged
Bail or Remand
o Bail- temporary release of accused person awaiting trial on conditions such as sum of money as
o At bail hearing authorised officer determines whether accused should be released on bail or remain
in custody until the trial
o May also be in form of surety (another person, like a guarantor, agrees to provide financial
guarantee that the accused will return to court for trial
o Violent offenders- harder to obtain bail- fear of committing another offence
o Restrictions to bail have been added to the Bail Act 197 (NSW)- drug trafficking or serious
domestic violence- presumption against bail
o Denying bail may have impact on accused person- extensive period of custody before final verdict
o Can make, add, apply for bail if new facts are found or no legal rep. was given first time
o Remand- period spent in custody awaiting trial at a later date- done if bail is denied
o Against people who have committed violent crimes, dangerous criminals, repeat offenders or those
thought to be flight risk
o Accused remains in detention until trial date set
o If guilty- time offender spent in remand taken off from sentence
Detention & Interrogation, Rights of suspects
o Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
o Can only detain for period of 4 hours; under 18 have right to have adult present
o Apply to magistrate for warrant extension for 8 hours rest periods allowed i.e. bathroom,
medical condition, waiting for guardian, legal rep. or family member, etc.
o Usually interrogated in this process- must issue caution (statement issue to suspect when detained
informing them of their rights)
o Detention of Mohamed Haneef 2007: arrested for allegedly having connections with terrorists in
Britain; violation of ICCPR
o Detained for 12 days without charge dropped after further investigation; residential detention
allowed him to come and go freely but not work
Rights of the suspect:
o Suspect has right to silence except with vehicle accidents where license, name and address is
o Right extends to courtroom where judge not able to interpret silence as guilt protect suspect from
clever barristers that twist words however may impede achievement of justice
o Right to privacy can refuse to search persons except if police have warrant

Legal Studies: Crime Summary Notes 2015

o Communication with friend, relative, doctor, etc.
o Lawyer should be allowed to be present at interrogation however not an absolute right
o Illegal evidence confession must be voluntary and recorded correctly to be used as evidence in
court judge must consider community interest for fair trial when deciding whether to
accept/reject evidence

3. Criminal trial process

Court Jurisdiction
o Many different courts that have jurisdiction to hear criminal offences
o Depends on a few issues including:
o The seriousness of the matter- summary or indictable

Legal Studies: Crime Summary Notes 2015


o Whether matter is being heard for the first time or involves appeal (application to have higher
court review decision of a lower court)
o Nature of offence- divisions within courts have authority to hear particular cases
o Age of the accused- whether person under 18 or over 18
o Type of hearing e.g. bail hearing, committal hearing, etc.
o Whether crime is offence under state or federal law
Case then placed in court hierarchy (system of courts within jurisdiction from lower to
intermediate to higher courts
If offence relates to Commonwealth law, prosecuted by the Commonwealth Director of Public
Judiciary Act 1903 (cth)- states and territory courts given power to hear federal criminal court
Federal offences often heard in the Federal Court of Australia- summary jurisdiction over criminal
Original jurisdiction: authority of the court to hear a case for the first time
Appellate jurisdiction: authority for court to review matters on appeal from another court

Lower courts the Local Court of NSW

o Local Court Act 2007 (NSW) sets jurisdiction and operation of LC
o Deals with majority of criminal prosecutions in NSW- deals with summary offences and conducts
committal proceedings (magistrate decides whether there is enough evidence for a case to proceed
to trial in a higher court)
o No jury present- tried in front of magistrate- referred to as Your Honour
o Bail hearings usually held and committal proceedings for serious offences held
o Heard by higher courts in front of judge and jury-if sufficient evidence provided, accused ordered
to stand in higher court- if not then discharged
o Heard and determined much faster, less formalities, cost of hearing is less
o Has limits over sentences it can pass- serious matters tried in higher courts to ensure justice for all
o Offences dealt by Criminal Procedures Amendment (Indictable Offences) Act 1995 NSW
Coroners Court
o Powers outlined in the Coroners Act 2009 (NSW)
o Role of coroner is to determine identity of deceased, date, place, manner and medical cause of
o Investigate disappearances; deaths where medical cert. has not been issued, or death occurred in
suspicious or unusual circumstances i.e. violent or unnatural way, accident that may have
contributed to death, etc.
o Conduct coronial inquest- court hearing where coroner considers information- call witnesses to
give evidence
o May conduct post-mortem examination to determine time or cause of death and uncover evidence
used in a criminal trial
Childrens Court
o Established in 1987 under Childrens Act 1987 (NSW)
o Deals with matters relating to children and young people under the age of 18

Legal Studies: Crime Summary Notes 2015

o Closed court- protect identity of c & young people- presided over by magistrate and no jury
Land & Environment Court
o Deals with interpreting and enforcing environmental law in the state of NSW
o Deals with civil and administrative disputes related to environmental planning
o Criminal jurisdiction over illegal polluting or dumping
Intermediate courts = the District Court of NSW
o Established under District Court Act 1973 (NSW)
o Trial court where matters can be heard before judge and jury- appellate jurisdiction- hears appeals
made by lower courts
o Hears serious criminal matters- indictable offences except for murder and treason
o Involve jury of 12- decide guilt or innocence based on evidence presented in the court trial
o Matters heard in the court:
o Offences against person: manslaughter, sexual or indecent assault, assault occasioning actual
bodily harm or assault of police officers
o Property offences: larceny, robbery, embezzlement, b & e
o Drug offences: supply, manufacture or production of prohibited drug
o Driving offences: dangerous or negligent driving causing death or serious bodily harm
Superior Courts = the Supreme Court of NSW
o Supreme Court hears most serious criminal offences as well as civil matters
o Constituted under Supreme Court Act 1970 (NSW)
o Original criminal jurisdiction include:
o Murder, manslaughter and attempted murder
o Major conspiracy and drug related charges
o Commonwealth prosecutions for serious breaches of Corporations Law
o Jury of 12 people- heard with highest level of formality and cost
o Appellate jurisdiction with the CoCA
The Court of Criminal Appeal
o States highest court for criminal matters- hear appeals from person convicted or sentenced by
District Court or Supreme Court judge- can also be brought from L & E court
o Heard by three judges- significant issues are 5 judges
o Highest court of appeal in NSW- jurisdiction to hear state and territory appeals

Federal Court- The High Court of Australia

o Highest court of court hierarchy
o Constituted by s71 of Constitution under Judiciary Act 1903 (Cth)
o Original jurisdiction limited in criminal matters- appellate jurisdiction to hear appeals from all
state and territory supreme courts
o Deals with cases concerning Constitution and its interpretation- may include criminal laws
The adversary system
o System where both parties are given the chance to present their case to an impartial judge and jury

Legal Studies: Crime Summary Notes 2015

Prosecution usually State (Crown), case is prosecution
Court sentences wrongdoers if guilty and imposes punishment
Determine the truth in an unbiased and objective manner
Judge and jury in indictable offence acts as impartial observer- determines guilt or innocence
based on evidence and arguments presented
o Achieves justice- fair system allowing both sides to present case- less prone to biasness
o Lawyers have equal opportunity to present the truth- jury impartial observer- fair and just

The adversary system as a means of achieving justice

o Less likely to discover truth because of standard of proof required, rules of evidence (hearsay,
opinion, relevance)
o Oral exam (witnesses); only to questions asked prevent full truth
o Advantage with skilled barrister/solicitor could determine sentence
o Witness give bad impression may be disbelieved
o Better to look at past records of accused; inadmissible in adversarial trial
o Ensures both sides follow rules of evidence for just outcome
o Appeal gives chance to rectify mistakes
Legal personnel in a criminal trial
Judges and magistrates
o Magistrates: magistrates preside over a local court. In summary cases for criminal law the
magistrate must determine guilt or innocence and pass a sentence.
o Also conduct committal proceedings for indictable offences to be tried- usually hear bail
o Judge: conduct the trials according to the rules and principles of the law
o Expected to remain impartial at all times, their rulings must be based on law and the evidence
provided to them by the prosecution and defence.
o Maintain order in courtroom, oversee proceedings
o Trial conducted legally and fairly for both parties
o Decide questions that arise with law
o Make decisions about points of law- instructions to jury to make sure proceedings are understood
-Trial by Jury: Judge explains to Jury outline questions that must be answered to reach verdict

o Crown represented by prosecutor- role to prosecute offender and obtain sanction or punishment
for offence. TWO TYPES:
o 1. Police prosecutors- used to prosecute summary offences- intensive investigation of mattergather evidence and info used at trial to form case against accused
o Required to give testimony at trial to aid prosecutions case
o Cases prosecuted by PP in Local and Childrens Court- handle most summary cases in NSW
o 2. Public Prosecutors- employed by DPP- prosecute indictable offences
o Director of Public Prosecutions- conduct committal proceedings for indictable offencesindependent authority prosecutes serious offences on behalf of NSW Govt.

Legal Studies: Crime Summary Notes 2015

o Barristers or solicitors- prosecute case and gain conviction verdict using evidence gathered by
o Ask questions of witness on stand and draw out truth from evidence and testimony given
o Does not investigate crime prosecutes one sufficient evidence has been provided
o Reviews cases reported by police- decision to prosecute depends on:
o Evidence sufficient or not to establish elements of offence
o Evidence sufficient to gain conviction by jury
o Discretionary factors to determine public interest: seriousness, circumstances of offence,
length and expense of trial, etc.
o Public defenders- barristers who appear in serious criminal matters for accused granted legal aid
o Granted public defender if eligible to receive legal aid- paid public barristers, independent of
o Offer advise in relation to criminal trials, sentence matters and appeals of D & S Court
o Public Defenders Act 1995 (NSW) (Appointed)
Pleas and charge negotiation
o Law requires accused to enter a plea
o The Plea: The law requires an accused person to make a plea in relation to the charges they are
o Major impact on how case is dealt with- does not require witness testimony- sentenced straight
o Magistrate will commit accused for sentencing in a higher court if the guilty plea is made at
committal hearing
Guilty Plea: the matter will be dealt with quickly because the matter goes straight to sentencing
-Only determine what sentence to impose
-No criminal hearing
Not Guilty: the case must go to trial and the prosecution must convince the jury of the
accuseds guilt.
o Plea Bargaining: A plea bargain is used to get the accused to plead guilty to an offence in return
for something. It is an agreement between the prosecution and accused on acceptance of a guilty
Advantages: efficient, quick and inexpensive; can save participants and community from
unnecessary pain and expense; protect witnesses from being cross-examined and the ordeal of
giving evidence; conviction on lesser charge better than none at all in the eyes of the victim
and community
Disadvantages: may get a lighter sentence than deserved; doesnt demonstrate the idea of
justice; increases rate of criminal convictions; accused pleading guilty for something they are
o Implications for Plea Bargaining
The Accused Pressure to plead guilty, may get lighter sentence, prepared to plead guilty to
lesser charge due to inability to afford costs.
The Victim Saves victim from ordeal of being cross-examined/giving evidence, lighter
sentence: lack of retribution for victim, accused wasnt charged for what they did

Legal Studies: Crime Summary Notes 2015

The Community Witness in community saved from ge & c-e, quick/inexpensive no court
hearing, lighter sentence: increase in risk of reoffending, secretive process prevents
achieving justice by not being seen by community
o Legal Representations
Important because rules of evidence and procedure can be difficult for a non-lawyer to deal
Defence lawyers: prevent evidence in favour of accused to discredit evidence of prosecution.
Done through cross-examination of witnesses
Solicitor used in minor cases and barrister in more serious cases
Important way to give access to legal system.
If not provided, may be seen as available to those with considerable economic power
Legal Representation
Legal Aid
o The Legal Aid Commission (LAC) has been established to ensure that people unable to afford legal
representation have access to a lawyer.
o COURT DECISION: Dietrich v The Queen [1992]
o High Court recognised issue of obtaining unqualified person as representation
o Established decision of limited right to legal representation- justice is crucial to ensure fairness
and equality
o Not everyone can afford legal representation- Legal Aid Commission Act 1979 (NSW)- provides
legal assistance and rep. to disadvantaged groups such as women, disabled persons, ATSI, and
financially disadvantaged
o Legal aid is only granted in certain circumstances. The applicant must pass a means, merit and
jurisdiction test.
o Means Test: an assessment of a persons ability to afford his or her own representation.
o Merits Test: the likely hood of the case succeeding. Legal aid may not be granted if there is a
strong case against the accused.
o Jurisdiction Test: the case must fall into defined areas of law.
Burden and Standard of proof
Burden of proof: in criminal cases, the prosecution must prove to the judge and jury that the accused is
guilty of committing the crime. May also be on the accused in cases such as mental illness
Standard of proof: the level of proof required for a party to succeed in court against opponent. Must
prove beyond reasonable doubt the accused committed the crime.
Beyond reasonable doubt: standard of proof required in criminal law requiring prosecution to show
there is no reasonable doubt that the accused committed the offence.
Use of evidence, including witnesses
o Evidence Act 1995 (NSW)- use of evidence based on this act as well as procedures
o Admissible evidence must be relevant to case and legally obtained
o Prosecution must ensure body of evidence is available and likely to secure conviction
o Can be physical evidence, documentary evidence and witness testimony

Legal Studies: Crime Summary Notes 2015

o Includes: photographs, charts to explain evidence, tape recordings, DNA testing, weapons,
clothing, etc.
o Most important = witness evidence- relevant knowledge about case or where crime took place,
features of offender, etc.
o Subpoena: formal letter requesting persons attendance at court- cannot be ignored
o Must tell truth or guilty perjury (lying to a court)
o Expert witness: someone who has studied an area of crime such as DNA examiner give testimony
in court in regards to results displayed through DNA testing
Examination of Witnesses
o Examination-In-Chief: Witness giving evidence by answering questions asked by defence or
prosecution each side ask their own witness questions
o Cross-Examination: Can be asked questions from opposing side enables both sides to test the
accuracy and objectivity of the evidence
o Re-Examination: Both sides can re-examine their own witness after cross-examination to clarify
issues of cross-examination
Rules Of Evidence
o Rules & provisions of asking questions and obtaining evidence ensures fairness:
o Hearsay: May only state what they have seen/heard themselves not a recount
o Opinion: Cannot give opinion about evidence unless it is expert witness
o Relevance: Evidence that relates to the matter being assessed should be recounted
o Character Evidence: Cannot state evidence about bad character of accused

o Can only be used if voluntary
o Right To Silence: Does not have to say anything at court only when submitting
corporation documents that may incriminate them
o Illegally Obtained: Inadmissible
Defences to Criminal Charges
There are two main types of defences:
o Complete/Absolute a justification that excuses the defendants action and results in an
o Partial an excuse for the defendants action that might result in a reduction in the charge
and/or punishment.
o Acquittal judgement made that determines the innocence of the accused
Complete Defences
o Mental Illness the law recognises that some people commit crimes as a result of mental illness
(insanity). It is the responsibility of the defence to prove that the accused was insane at the time
of the act. The defendant is acquitted if the court accepts the defence of insanity because they did

Legal Studies: Crime Summary Notes 2015

not have the mens rea. However, the court can have them placed in a mental health facility shown
in the case: State of Colorado v Holmes [2012]
o Achieving Justice: Person who doesnt understand what they did was wrong, should not be held
o Test to prove mental illness rigorous person who does understands knows that no one is ever
wholly excused
o Self Defence the defendant acted in defence of self, another or property; accepted in limited
circumstances and only for reasonable force- opinion of jury and accused of reasonable force
may differ Knew it was wrong but had to defend themselves from attach
o CASE: R v Zecevic [1987]
o Defendant must have reasonable grounds to believe life was threatened- proportional and
reasonable force to defend
o Claimed self-defence when he shot his neighbour stabbed him and threatened to blow his
head off
o Trial judge stated that Jury couldnt consider it as self-defence
o HC said reasonable force depends on:
o Whether defendant believed it was necessary
o Whether this was based on reasonable grounds
o Automatism: where a person claims that they were not in control of their actions at the time of the
criminal act being committed e.g. epileptic fit. This defence is used to show that there was no
mens rea.
o Mistake/Accident: acting under honest and reasonable mistake- could not form mens rea
o Compulsion You must admit to both actus Reus and mens rea, and then claim to have been
forced carry out the crime. There are two forms of compulsion:
Necessity: When the crime committed is not as bad as the possible outcome of not committing
the crime defendant claims to act necessary to avert serious danger.
o CASE: R v Dudley & Stephens [1884]
o Killed companion who was near death all three remaining fed off corpse
o Not available for murder
Duress: The accused claims that a person forced them to commit the crime against their will.
A jury must be convinced that the person had strongly believed that the threat that forced them
to commit the crime was genuine frightened by threat or bodily harm
Knowingly carried out crime because someone elses or own life under threat
Can be complete people argue they were compelled to act criminally
CASE: R v George Palazoff [1986]
o Cultivated & possessed Indian marijuana for trading claimed under duress
o Appealed claiming Judge didnt direct Jury properly with the defence
o Threats to appellants family relevant to duress
Consent: the defendant claims that they acted with the victims consent. The defence of
consent can be either complete or partial, and is often used in sexual offences. Reduces
Cannot be obtained by: force, threat, fraud, mistaken ID, mistake as to the purpose
CASE: R v Mueller [2005]
o Accused touched, kissed Asperger woman; kissed her genital area and forced her to
touch his penis claimed it was consent

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o Victim didnt consent silence or absence of positive resistance is not consent
Achieving Justice
o CASE: R v Dudley & Stephens [1884] test to prove necessity rigorous: must prove it is in
proportion to danger defendant was trying to avert.
o Defence of necessity not available for murder
o CASE: R v George Palazoff [1986] Threats must be sufficient to cause ordinary person to
commit crime
o Allows people to act in a reasonable way to protect themselves/families
o CASE: R v Mueller [2005] Allow people to consent to acts which may be illegal
o Law makes sure consent is free and voluntarily given and not obtained by force
Achieving Justice of Provocation
o Only provable if the alleged provocation was sufficient for an ordinary person to have lost
o Doesnt exonerate offender
o Allows women who have suffered abuse to reduce liability if death caused
Does not Always Achieve Justice
o Homosexual advance defence not a reasonable enough provocation to kill someone if
heterosexual advances are not sufficient
o BWS & abuse excuse allows people to take law in own hands rather than legal system.
Achieving Justice to Criminal Charges
o Use of defences in general Both at circumstances of alleged crime complete or partial
defence should be considered
o Decide if justice served
o Controversy with self-defence, consent, provocation
Partial Defences
o Provocation: The actions of one person cause the other person to lose control of their actions. It
must be shown that the provocation was so bad that a reasonable person would have also been
provoked into the crim and that the victim caused the accuseds behaviour. This defence can only
be used when charged with murder and will only reduce the charge to manslaughter.
o CASE: The Queen v Sebo [2007]
o Bashed GF Taryn Hunt with steering wheel lock claimed provocation (bragging about
o Jury accepted Sebo was provoked manslaughter: imprisonment for 10 years
o Appealed by State to ACD Court of Appeal on leniency remained 10 years
o Diminished Responsibility: This exists when a person suffers from an abnormality of the mind that
impairs their mental responsibility. This defence is used when the accused is not consistently
o Intoxication: a person was so affected by alcohol or other drugs that they did not know what they
were doing.

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o Battered Womens Syndrome may arise when a woman kills her husband or partner after years
of suffering domestic violence. Helps to prove duress provocation or self-defence. Lead to
mitigation of sentence
Role of juries, including verdicts
o Central role in achieving justice- indictable offences- District/Supreme Court
o Rules found in the Jury Act 1977 (NSW)- selected at random from electoral roll
o Justice achieved by collating between random individuals rather than selectively chosen based on
characteristics i.e. occupation
o Prosecution: defendant can reject Jury if they feel they may be bias
Challenging Jury
o Prosecution and defendant may challenge jury
o Peremptory challenges: This is the disqualification of jurors without providing sufficient reason
based on age, gender, race, etc.
o Challenges for cause: based on person not being qualified or being suspected of bias
Eligibility for jury duty
o Important part of justice system for an accused to be tried by group of their peers
o Difficult to gain exemption from jury- sought by +65yrs, pregnancy, medical staff emergency,
convicted criminals, members of legal profession

Jury role
o Apply the law as directed by judge for verdict of guilty or innocence
o Must remain alert and focused on court hearing- unbiased and impartial- make judgement based
on evidence
o Fair and open-minded when reaching decision to achieve justice
o Not be influenced by media or personal beliefs when reaching a decision- based on evidence and
o Majority verdict: 111-1 accepted after 8 hour deliberation
o Accused acquitted if not guilty- if guilty, judge passes sentence
o Time of decision varies as some cases may require time and deliberation whilst simpler cases may
require less consideration
o Hung jury- not being able to reach a conclusive verdict as an entity- case is dismissed and retrial
will occur
o Costs time and money of persecution and accused- result in extended period of custody for
o Jury Act 1977 (NSW) with Jury Amendment (Verdict) Act 2006 (NSW)
o Verdict where one or two people do not agree are allowed where time for deliberation has

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4. Sentencing & Punishment

Statutory and Judicial Guidelines
o Judiciary has the discretion of selecting sentence to give of fender and length of time
o Limited by statutory and judiciary guidelines
o Crimes (Sentencing Procedure) Act 1999 (NSW)- establishes laws and guidelines to deliver fair
and just sentence S59: any guilty of actual bodily harm is liable to 5 years imprisonment
o Maximum Penalty- maximum sentence available to impose for an offence- rarely sentenced
o E.g. maximum penalty for murder is life imprisonment in AUS- 14 years imprisonment for sexual
assault Amendments to Crimes (SP) Act 1999 adds minimum non-parole to offences. E.g. 10
years for aggravated sex assault
o Crimes (Sentencing Procedure) Act allows for NSW Attorney General to apply for guideline
o Judicial discretion removed for cases such as mandatory sentencing- automatic sentence set by
parliament for particular offences
o Deterrent- something that discourages or is intended to discourage someone from doing something
NON-PAROLE: Minimum time to be spent in prison, PAROLE Offender is released into
community under supervision
o Court must not impose full-time prison without considering other alternatives
o Can impose fixed term of imprisonment if term is over 6 months can fix parole/non-parole
o Parole period is quarter of total sentence 4 year sentence serves 3 year non parole
o Sentence 6 months or under must be fixed (non parole period)
o Guideline sentence is a judgement about sentence for a crime taken into account by courts
o NSW Attorney General can ask court to give guideline sentence for criminal offence

Legal Studies: Crime Summary Notes 2015

The purposes of punishment
o To ensure the offender is held accountable for his or her actions
o To protect the community from the offender and crime
o To prevent crime by deterring offender and other individuals
o Specific deterrence- punishment against an individual offender aiming to deter them from
committing crime in the future
o General deterrence- punishment attempting to make example of an offender in order to send
message to rest of community
o Issue of achieving justice in criminal law is that punishing one person more severely than others
may be unjust
o Sentencing for the purpose of deterrence may be seen as unnecessary and harsh
o The Australian Law Reform Commission recommended that deterrence should not be used as
sentencing objective in 1988
o Some do not deter individuals for example, prisons have many recidivists

o Punishment considered to be morally right or deserved based on the nature of the crime
o Society seeks retribution on behalf of victims in impartial manner- punishment aims to protect
community and victim E.g. murderer should be put to death
o Main justification for punishment
o Ensure offender held accountable for his or her actions issues of fairness for offender and
harsh implications
o Recognising harm to community and victim may not always be successful: lead to offenders
given different sentence to others committed similar crimes
o CASE: R v AEM (Snr); R v KEM; R v MM
o Three teens sentenced to long terms of imprisonment due to sexual assault offence and effect
on victims
o Judge takes into account effect on victim and family
o Avoiding harsh sentencing through special programs to help offender from committing offences in
the future
o Recidivism- reoffending
o Encourages understanding, prevents criminals from falling into same patterns of crime
o Options and programs aim to give offender skills to function through society positively
o E.g. of fairness: Drug addict given rehab however drug theft will not be
o Make the offender incapable of committing offences by restricting freedom; isolate offender
o Includes home detention, community work or licence cancellation

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o Uncertain about whether offender will reoffend; cannot predict how long theyre a danger to
o Large cost to the public
Factors affecting a sentencing decision
o Crimes (Sentencing Procedure) Act 1999 (NSW) sets out factors for judicial officers to consider
o Aggravating factors- make the offence more serious- lead to increased sentence
o Relate to the way offence committed, impact on victim and factors relating to offender
o Gratuitous violence- excessive violence without a reason or excuse
o Aggravating factors include:
o Offence: violence, cruelty or weapons- if injury or harm caused, motivated by prejudice, etc.
o Victim: if victim was vulnerable e.g. young or disabled; targeted for occupation
o Offender: abused position of trust or authority when committing offence; if offender is reoffender or has prior convictions
o Mitigating factors- make the offence less severe- reduced sentence- usually subjective factors:
o Offender is of good character; no prior convictions
o Youthful or inexperienced
o Pleaded guilty or assisted police
o Honest remorse
o Judicial Discretion- a judge has to weigh up all the factors of the case and refers to the relevant
o Role of the Victim in Sentencingo Advantages:
Useful info about impact of crime when offender has pleaded guilty and judge
must hear victims evidence
Give Victim a role in court process community confidence in system
Assist in rehabilitation of offender; hear the impact of their actions
o Disadvantages:
Delivery/cross examination can be embarrassing and upsetting
The role of the victim in sentencing
o Can be involved through a number of ways- reporting crime and assisting police
o Testify as witnesses, submit VIS- sometimes quite difficult and confronting i.e. sexual assault
o Victims Right Act 1996 (NSW)- recognises roles and rights
o Victims dignity, compensation, protection from accused, identity and rights to info and assistance
during criminal process
o Victim impact statement permitted for serious offences involving violence/death/physical harm
physical or psychological
o Can significantly influence sentence
o Provide opportunity for victim to express themselves in criminal process
o Family members in case of death sig. to case argued against: may remove objective impartiality
from judges process

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o Allows higher courts to supervise discretion of magistrates and judges when making
sentencing decisions
o Appellant- the party who is making the appeal
o All individuals have the right to appeal:
o Appeal against conviction- the appellant argues that they did not commit the offence for which
they are found guilty
o Sentence appeal- an appeal against the severity or leniency of a sentence
o Depend on the court- various time limits and process requirements
o Person may directly appeal to Supreme Court if on question of law
o Crimes (Appeal and Review) Act 2001- states rights of any person convicted or sentenced in
LC and his or her right to appeal to DC
o For the Court of Criminal Appeal- must prove legal error- harsh or lenient sentence
o Final court of appeal is HCOA- right to appeal granted in rare circumstances
o Higher courts: Reduce or increase sentences
o Issue GUIDELINE sentences
o Ensure consistency by establishing maximum/minimum sentences

Types of penalties
o Formal warning without charge issued by police for less serious offences
o Police have power to issue caution as a way to avoid court system
o Young Offenders Act 1997 (NSW) police use discretion to issue formal caution to young
offenders between 10 and 18 for minor offences
o Conference where offender, police and family discuss offence and implications
o E.g. Cannibal Caution Scheme
Criminal infringement notice
o Notice issued by police outside court alleging criminal infringement and requiring payment of a
o Allow police to issue on-the-spot fines for certain offences including larceny of >$300, offensive
behaviour, obstructing traffic, etc.
o Removes burden on criminal court system- allow police to issue fines for minor offences
o Increase in police powers offenders have option of electing to have matter heard in court
o May not be effective as deterrent police say quick, save police/court time
o Charged fine by court anyway if arrested and charged
Conviction or no conviction recorded
o Judicial officer has option to record conviction against offender or pass sentence with no
conviction recorded
o May decide to record conviction without imposing sentence

Legal Studies: Crime Summary Notes 2015

o The payment of money by the offender to the state and is one of the most common forms of
penalties expressed in penalty units; can have licence taken, property seized, wage garnished
o The judge will use their discretion when imposing a fine and so they will consider the offenders
income and their capacity to pay the fine when determining its size.
o Most commonly imposed on strict liability offences and regulatory offences. Non-payment results
in more serious penalties. E.g. imprisonment or periodic detention
Bond: (also known as recognisances)
o Compulsory condition imposed on the offender for a period of time- must comply with
o Good behavior bond involves bond period of up to 5yrs- if breached- come to court again with
more serious penalties E.g. paying victim compensation or accepting Parole Authority
o Considered where lesser penalties are not considered efficient and imprisonment too severe
o Include refraining from activities such as gambling, family counseling, rehabilitation, etc.
Suspended Sentence:
o Sentence of imprisonment imposed but suspended on condition of good behaviour
o Court can impose sentence of imprisonment for up to 2yrs and suspend original sentence- breach
of bond can reinstate original sentence
o Provides opportunity to rehabilitate and maintain ties with community- signals deterrence of how
close the offender was from a harsher sentence
Community service orders
o Offender is sentenced to serve specified hours of work in the community- up to 500hrs
o Punishing and shaming offender- allows for rehabilitation making amends with comm.
o Rehabilitate outside prison system and avoid harsher penalties
o Most severe sentence imposed in Australia and is a last resort
o S5 of the Crimes (Sentencing Procedures) Act 1999 (NSW) set maximum penalties after all
possible alternatives are considered
o Deprives person of liberty and requires careful consideration
o Correctional centre: a prison- offender is held in custody for the period of their imprisonment
o Non-parole period: period of imprisonment for which parole cannot be granted- of entire
imprisonment sentence
o Parole: release of a prisoner before the sentence is completed with the promise of good behaviour
o Australian domestic law aim to achieve justice by only considering imprisonment as a last resort
Home Detention
o Imprisonment sentence where the offender is confined to their home for monitoring
o Probation or parole officer monitors the order- random visits
o May go to work or medical centre- electronic monitoring device attached care for family needs
o Provide opportunity for rehab- keep offender out of prison system- integrate into family
o Cannot be used for violent/sexual offences i.e., murder, sexual assault, fire-arms offences

Legal Studies: Crime Summary Notes 2015

o Governed by Crimes (Sentencing Procedure) Act 1999
Periodic Detention
o Also known as weekend detention- spend period of each week or month in prison
o Allows offender to live with community whilst also be held accountable for actions
o Serves purpose of rehabilitation- allows for offender to take responsibility
o Begins at 7:00pm on Friday and ends 4:30pm on Sunday
Diversionary Programs
o Alternative to traditional court system- focuses on therapeutic justice and rehab- part. Offences
o Improve offenders future prospects by assisting in needs
o Magistrate of LC adjourning case- offender attends rehab or special hearing- education, medical or
psychiatric treatment, social welfare assistance, etc.
o NSW Bureau of Crime Statistics and Research- released report of effectiveness of DC in 2008
o Offenders who completed less likely to be reconvicted than those of traditional Penalties
o 37% less likely reconvicted, 65% for any offence, 57% for drug offence
o Drug Court 1999:
o Rehabilitate drug offenders so no longer dependant on drugs
o Youth Drug & Alcohol Court modeled on Drug Court
o 261 offenders began 168 remained on 12 month program
o Magistrates Early Referral Into Treatment Program [MERIT]:
o Operates in local courts and allows magistrate to adjourn cases for 3 months, whilst
offender attends rehabilitation
o Participation voluntary; completion taken into consideration
o Circle Sentencing:
o Support to Aboriginal offenders
o Reduces cultural barrier between Aboriginal and the courts
o Community assistance in rehabilitating offender to redress harm done to victims
Alternative methods of sentencing
Circle Sentencing
o For some Aboriginal offenders- conducted in a circle of local community members and a
o Form of customary law- decide punishment as a community
o Improve Aboriginal confidence in legal system- understanding between ATSI comm. and courts
o Program objectives being met
Restorative Justice
o Voluntary conference between offender and the crime
o Brings victim and offender together to create a sense of understanding- impact of offence on
victim and others, held accountable
o Confronting- resolve problems, victims ask questions- attempt to move on with life
o Offender apologises and make amends
o Valuable part of rehabilitation process- run by the Restorative Justice Unit of the NSW Dept. of

Legal Studies: Crime Summary Notes 2015

Corrective Services
o Based on youth conferencing initiatives- 15-20% reduction in reoffending
o Mainly relate to minor infringements
Post-Sentencing Considerations
Security classification Crimes (Administration of Sentences) Regulation 2008 (NSW)
o Maximum, medium and minimum security- some have more than one type according to
seriousness of crime e.g. goulburn (maximum); Tamworth (medium); Silverwater (minimum)
o Maximum security for offenders committed the most serious crimes; Medium security- can move
around more freely within high walls and security fences; Fewer barriers to escape- inmates
allowed open conditions
o Determines which prison to serve sentence in and which rehabilitation program prisoner has
access to
o Determines privileges; company/isolation
o Effect prison experience and chance of integrating into security

Protective Custody
o Provide centres for offenders vulnerable from attack by other prisoners
o Authorities have duty of care for safety of offenders to protect their rights as well
o Cannot subject offenders to risk of physical harm for punishment
o Placed into custody for certain offences that are deemed as offensive such as offences against
children protects prisoner from harm and access to work and education programs
o 3 years: Automatic parole; can apply for parole if minimum sentence served
o Conditional release of prisoner from custody after completion of minimum term of sentence
o Provides offender with incentive for rehab
o Increases likelihood of overall reform of offenders- encourages prison discipline
o If parolee meets conditions- let out early on good behaviour such as not reoffending, employment,
avoiding certain area of crime Parole Authority; closely supervised; subject to restrictions &
o Intended to assist offender in process of reintegration into community
o Aim to ensure offender will not reoffend
o E.g. obtaining from employment, mixing with certain people or going to certain places
Preventative and continued detention
o Preventative detention- when a person is placed in detention in case of future harm that they may
commit an offence one way of using
o Detained without any proof of having committed an offence suspected of terrorist activity 2 nd
o Purpose: incapacitation- protect community from threat of crime
o Post-sentence preventative detention- person has already been sentenced and has served the

Legal Studies: Crime Summary Notes 2015

o Preventative without charge- can occur at any time
o Most jurisdictions have legislation enabling powers of preventative detention
o Terrorism (Police Powers) Act 2002 (NSW) gives police power to make an application to detain
someone for 14 days if suspected of terrorism
o Post-sentence- detaining offenders after already serving full sentence
o Crimes (Serious Sex Offenders) Act 2006 (NSW) allows for continued detention- on-going
detention of person after serving full sentence
o Ensures safety and protection of community and facilitates the rehab of serious sex offenders
Sexual offenders registration
o Child Protection (Offenders Registration) Act 2000- persons convicted of violent or sexual offence
against a child required to register at local police within 28 days of sentencing or release from
o Adult offenders register maximum of eight years and juvenile 4 years
o Provide range of personal info as well as travel plans 10,500 registered nationally 2009
o Justified on basis of protection of community
o Target certain offenders beyond period of sentence- deny chance of moving on from rehab process
subject to supervision upon release from prison, including electronic tagging
o Migration Act 1958 (Cth)- any migrant living who is not a citizen may be deported if they are tried
and convicted of criminal offence
o Serious effect of sentencing- publicized
o Appear to harshly treat a person as a problem that can be solved by moving it elsewhere
o Implications:
o Protect Australian citizens from re-offences
o Government: not obliged to assist with re-assimilation
o Causes hardship on offenders family particularly if main income earner
Implications of Preventative & Continued Detention
o Protect community from possible harm caused by offenders
o Consequences serious; people detained under legislation already served sentence
o Detention only for people who may commit a crime in the future
o Violates ICCPR
o No one shall be subject to arbitrary arrest or detention
Implications of SOR
o Monitor offenders; chance of re-offending minimized
o Given chance to assimilate into society
o Some residents may object, if publicized

Legal Studies: Crime Summary Notes 2015

5. Young Offenders
Age of criminal responsibility
o Law aims to prevent children from being exploited, protect them from harsh consequences of
uninformed decisions, etc.
o Doli incapax Latin word meaning incapable of doing wrong- children cannot be held
responsible for their actions and cannot be guilty of the offence; between 10-14
o Extent of mens rea in a criminal case is significant children deemed as incapable of having
criminal intent prosecution must prove that child knew it was wrong not just naughty
o Convention on the Rights of a Child 1989- aims and requirements for treatment of children and
young people- minimum age should be established to determine whether there was sufficient mens
rea to hold under aged offender accountable
o Issues:
o Some argue age of CR should be lowered others say current laws regarding the age of
CR should be continued
o Arguments:
o Doli Incapax is old fashioned doesnt hold for modern children, others say because it
is so old, should be cautious when reforming
o Modern children have compulsory education from 5 mentally & physically develop
Those who commit offences dont attend school regularly truancy, exclusion, etc.
Family & social environment influencing actions not school environment
o Modern children are sophisticated greater understanding due to technology
Technology causes quicker brain deterioration and ability to determine what is real
E.g. People getting injured may recover quickly thought due to cartoons/video
o Leniency at the expense of community protection
o Victim/family wish for retribution/punishment for perpetrator

Legal Studies: Crime Summary Notes 2015


Under 10 years old

Adults acquitted from serious criminal offences due to argued lack of mens rea
Inconsistent to treat children harshly
Acts/ Legislation

Proceedings) Act 1987
Lays out minimum age of
criminal responsibility

10-13 years

Proceedings) Act 1987

Young People
14-17 years

Proceedings) Act 1987
People under the age of 18 are
subject to the act- protections
and requirements stated

Criminal Responsibility
Cannot be found guilty of
committing an offence- not seen
mature enough to commit
extreme offence with mens rea
ISSUE: proving that an offender
under the age of 10 understood
the act to be wrong is
Punishing children at young age
seen as cruel treatment
Rebuttable presumption of doli
incapax. Presumed not capable of
offenceprosecution may show the child
knew what they were doing was
wrong- can include psychiatric
evidence, evidence of parents and
teachers or behaviour statements
ISSUE: Doli incapax should be
removed due to increasing
awareness of wrong in children
difficult- not enough evidence to
rebut presumption of DI
The rule seen as unfair especially
to victims of the crime
Criminally responsible for any
offence committed- case may be
heard in the Childrens Court
Deemed mature enough to
understand the seriousness of
People aged >16 cannot have
criminal conviction recorded
unless indictable

CASE: R v LMW [1999] death of Corey Davis

- 10-year-old child accused of manslaughter after dropping 6-year-old into Georges River
- Initially dismissed due to age of child- DPP persisted and took case to NSWSC
- Jury acquitted LMW with doli incapax

Legal Studies: Crime Summary Notes 2015


Prosecution argued he was aware of his actions of pushing Corey Davis

Various appeals- determined there was sufficient evidence for jury to make a decision on doli
incapax for the jury to decide- acquitted LMW three hours after deliberation

The rights of children and young people when questioned/arrested

o Children and young people require protection when dealing with police
o Seen and Heard: Young People and the Legal Process- issued by ALRC in 1997 examining
relation, standardising minimum age of CR and national standards through legislation
o Jurisdictions comply with CROC agreements ratified by AUS
Questioning young people
o Police are entitled to require that a young person provide them with name, address and proof of
o As with adults, police have no general power to detain a child for the purpose of questioning. A
child or young person cannot be taken to the police station unless they are under arrest. If arrested,
the childs parents or guardian must be contacted
o Again, as with adults, children and young persons are entitled to exercise their right to silence and,
apart from providing name, address and proof of identity, do not have to participate in a record of
interview with police. There are some exceptions to this in relation to, for example, motor
vehicles. If a young person is the owner of a motor vehicle, they are required by law to tell police
the name and address of the driver of the vehicle if it is alleged that the driver committed a driving
offence Rights contained under Law Enforcement (Powers & Responsibilities) Act 2002
o Police cannot question a child for more than two hours at any one time.
o A child is entitled to have their parent, guardian or solicitor present during questioning. If the child
is younger than 16 years, parental permission must be obtained for another supporting adult to be
present during questioning.
o Must be informed of rights and assisted in exercising rights E.g. Legal Aid Hotline
Searches, arrest and interrogation
o Law Enforcement (Powers and Responsibilities) Act 2002 prohibits strip search under 10- between
10 and 18 must have adult present
o Information or statement of child or young person must be given with trusted adult present such as
parent or lawyer
o Arrests are done same way as adults- police must have reasonable grounds and a warrant
o Young peoples rights are severely protected- defined as vulnerable people under Law
Enforcement (Powers and Responsibilities) Regulation 2005
Why young offenders are treated differently in criminal justice system
o Given special protection in many circumstances such as education, care & control, medical
treatment, etc, - inconsistent to treat harshly in adult matters
o Less likely to understand court procedures intimidated
o Dows not always understand consequences of his/her actions
o Greater chance of resuming normal life and becoming normal citizens
Childrens Court- procedures and operation
o Listed under Childrens Court Act 1987- dismissal of charges with caution, fine, bond, probation,
community services, suspended sentence Childs education shouldnt be interrupted, child

Legal Studies: Crime Summary Notes 2015


shouldve at home, penalty should not be greater than adult who commits similar offence
Presided by a magistrate
Hear any offence other than serious indictable offence (higher court- murder, assault, etc.)
Committal proceedings of any indictable offence
Follows procedures of the Childrens (Criminal Proceedings) Act 1987
Equal rights as adults, right to be heard in court, responsible for their actions, should reside in his
or her home and education should not be interrupted

Penalties for children

o CROC encourages rehabilitation as a penalty- children and young people have better chance of
reintegrating into society through rehab
o Childrens (Criminal Proceedings) Act 1987- penalty shall be no greater than that of the adult
o Children should be assisted with reintegration into community to sustain ties to family and
o Children should accept responsibility for their actions
o Penalties are less severe and consider childs rehabilitation
Justice Juvenile Centers
o Detention centre housing young offenders subject to control order
o Control order- similar to adult sentence and served in a JJC
o Severe penalty given to children- 2 years max.
o Managed by NSW Juvenile Justice (Department of Human Services)
o Provide safe, humane and secure environment for young offenders
Sentencing considerations for young offenders
o Attention needs to be placed on social factors i.e. homelessness, family circumstances, health
conditions, etc.
o E.g. consider fines and whether offender may be able to repay them and the effect this may have
on rehab (working long hours to pay for fines)
o Community service orders beneficial for young people
o Seriousness of offence must be considered and court must keep rehabilitative focus a priority
unlike purposes of deterrence and retribution
o Grave adult behaviour- where young offender has acted like an adult in committing offence;
indicated by seriousness of crime and other surrounding factors
o CASE: R v Pham & Ly [1991]
o Committed combined robbery breaking into house and injuring occupants
o Bound and gagged victims with sticky tape- proceeded to rob property
o Sentenced to 12months on remand- appealed in Criminal Court of Appeal- overturned as
inappropriate and inadequate
o Case was referred for resentencing
Alternatives to court
o Main aim is to encourage rehabilitation and to prevent a bad impact on the childs wellbeing
o Principles of YOA 1997- to prevent restrictive sanction, children should be informed of their
rights, criminal proceedings should not start unless no other appropriate alternative
o On the spot for minor offence

Legal Studies: Crime Summary Notes 2015

o Official notice given to young offender by investigating officer without conditions attached
o Can be given for violence or discretion of investigating officer- informal- must be recorded
o Formal recorded alternative to prosecution- offender admits to offence and consents to formal
police caution
o Aspects of offence considered i.e. seriousness of offence- may be taken into Childrens Court
Youth Justice Conferences Young Offenders Act 1997 (NSW)
o Measure to divert young offenders from court system through conference that addresses the
offenders behaviour in a holistic manner
o Allow offender to take responsibility and promote family understanding of issues
o Enhance rights of victims and make decisions that reflect needs
o Parent/guardian, victim, support of victim and mediator
o May include apology for victim, compensation, drug or alcohol rehab or anything appropriate
o If not agreed, court proceedings may be commenced
o Allows offender/victim to meet and work out best way for offender to compensate
o Allows victim to tell offender about impact of the crime communication for positive
o Disadvantages:
o Reduced rates of re-offending; rates still high
o Does little to address causes of youth crime
o May not always have retribution for victim/s family

The Youth Drug & Alcohol Court

o Established under Childrens (Criminal Proceedings) Act 1987 (NSW)
o Offers opportunity to participate in intensive program of rehab before being sentenced
o Program lasts 6 months; detoxification, rehab & close supervision from court
o Completion may lead to lighter sentence
Intensive Program Units & Mentor Programs
o Imposed as condition of probation or early release from detention centre
o Provide psychological counseling to serious young offenders or those with psychological
o Mentor programs for ATSI or non-English speaking background
o Allow offenders to be mentored by elder person to assist in rehab and prevention of further
o YOA encourages offender rehabilitation and uses diversionary means to resolve conflict
o Adheres to CROC obligations which state under Article 40(3)(b)- wherever appropriate and
desirable, there should be measures for dealing with such children i.e. children who have broken
the law, without resorting to judicial proceedings, providing that human rights and legal
safeguards are fully respected.
o May not be used for wide enough range of offences and excludes some young offenders due to its

Legal Studies: Crime Summary Notes 2015

o May work in serious offences- requires offender to take responsibility for his or her actions and
make amends with harm caused to victim/s
Effectiveness of the criminal justice system when dealing with young offenders
Ensure Effectiveness:
o CR law effective children dont have experience/mental capacity to form mens rea
o More vulnerable greater chance of rehab and becoming responsible citizens
o Children court protects who are charged with criminal offence and has them accountable
o Separate detention protection from adult criminals
o Sentence alternatives allow greater chance for rehab
o Programs such as Intensive Program/Mentor Programs help preventing children and young people
from reoffending protects society from future harm
Limit Effectiveness:
o Some say CR is too high and many are excused from crimes where they should be punished
o Laws regarding police enforcement have an unfair impact on children
o Some perceive sentencing altogether, such as warnings, caution, YJC as soft options that
encourage re-offence
o Youth Justice does little to address causes of youth crime

o Anycrimepunishablebyastatewithinternationaloriginorconsequences;crimerecognizedas
o Statesovereigntyauthorityofindependentstatetogovernitself;imposeandcollecttaxes;make
o Mostseriouscrimescommittedthatarecondemnedbytheint.community
o Genocide:actswhichhaveintentionofexterminatingallorpartofanational,ethnic,racialor
o Warcrimes
o Hijackingofaircraftandslavetrading
o Statesmaybeunwillingorunabletoprosecuteindividualsforthesecrimesduetopositionsof
o Article6ofRomeStatutegivesICCjurisdictionovergenocide.Caninclude:
o Killingmembersofgroup

Legal Studies: Crime Summary Notes 2015



o FirstcriminalisedbyConventiononthePreventionoftheCrimeofGenocidein1948
o Difficulttoprovedocuments,evidence,forensicevidence,reviewofkillings,militaryorders,
o Courtmustprovebeyondreasonabledoubtanintentiontodestroygroupwasmade
o DealtwithbyspecifictribunalspriortoICCsuchasInternationalCriminalTribunalforthe

o Systematicattackagainstanycivilianpopulationwithknowledgeofattack;murder;enslavement;
o EasiertoprosecutebytheICCbecauseofbroaddefinitionandissuesofproof
o Actionscarriedoutduringtimeofwarthatviolateinternationallaw
o GenevaConventionssetstandardsinint.lawforhumanetreatmentofvictimsofwari.e.
o Article8ofRomeStatuteprovidesactivitiesthatconstitutewar:tortureorinhumanetreatment;
o 2008,ICCfiledchargesagainstSudanesepresidentoverongoingatrocities
o Receivedattentionthroughcampaigns,humanrightsgroups,politicalleadersandcelebrities
o Chargesincluded10ofwarcrimes,3genocide,5crimesagainsthumanityand2murder
o ICCissuedwarrantforarrestin2009forwarcrimes:directingattacksatcivilianpopulation,
o Thisinvolvesthebreakingoflawsinmorethanonenationhowevercoveredbyextradition
o Difficultiesintransborderdetectionandenforcementofcriminallawscrimesunderpinnedby
o Includehumantrafficking,internationalfraud/whitecollarcrime,internationalterrorism,etc.
o Prosecutedunderlawofoneoranothercountrysdomesticjurisdiction
o E.g.TheWonderlandClubprosecutionsimultaneousraidsindifferentnationsaroundtheworld

Legal Studies: Crime Summary Notes 2015

o Includehostagetaking,terrorism,drugtrade,etc.
o PakistanterroristshijackedIndianAirlinesin1999despitetheConventiononHighSeas1958
o RatificationofRomeStatueon9thDecember1998priortodevelopmentagreedtocriminalise
o E.g.WarCrimesAct1945(Cth)outlawedrecognisedwarcrimeslistedinGenevaConv.Act
o EnsuresAustraliasdomesticlawswouldcomplywithstatue
o AustraliaalsohasprimaryjurisdictiontoinvestigateandprosecutecrimesinAustralianterritory
o AnycrimeoutlawedinRomeStatuteiscriminalisedinAus
o PlayroleofstatepartytoICCparticipatesindiscussionsamongstatepartiesandinadminof
o CommonwealthpoliceforceestablishedtoenforceCommonwealthcriminallawandtoprotect
o Engagedinvariousinternationalactivitiesworldwideincludingpostsinover25countries,
o Includechildprotection,terrorismoperations,preventinghumantrafficking,etc.
o EstablishedJakartaCentreforLawEnforcementaimstoenhanceregionalcooperationto
o Developsrelationswithotherregionalbodiesi.e.InternationalLawEnforcementAcademyin
o NationalstatutorybodyunderAustralianCrimeCommissionAct2002(Cth)commissionfocuses
o Investigatesnationalconcernincoordinationwithinternationallawenforcementagencies
o Investigatesareassuchasmoneylaunderingandtaxfraud,identitycrime,humantrafficking,etc.
o NewsCorpAustralia:murdervictimJamieGaowascalledforsecrethearingforevidenceofthe

Legal Studies: Crime Summary Notes 2015

o Crimesweredealtwithbydomesticcourtsoradhoctribunalspriortotheestablishmentofthe
o ICJ:judicialorganconcernedwithtryingnationstatesthatviolateinternationallaw
o TribunalforFormerYugoslavia:disbandedonceconflictwasresolved
o IndependentandpermanentjudicialorganoftheUNestablishedbytheRomeStatutein2002to
o OpenedinvestigationinCongoandmadeeffortstoprovidesupporttonationstatethrough
o Onlyprosecuteifcourtscannotorareunwillingtotryindividuals
o Exercisewhere:accusedisnationalofmemberstateoftreaty,allegedcrimeoccurredin
o Lifeimprisonmentservedinstateprisondesignatedbycourt
o MAINAREAS:drugsandcriminalorganisations,terrorismandhumantrafficking
o Provideadvicetonationallawenforcementagenciesontransnationalcrimes
o MovementforglobalpoliceforcebyINTERPOLtoincreasetrackabilityofcriminalsaroundthe
o WonderlandClubint.joinedforcestoraidhomesofmembersaroundtheworldAUS,TGB,US
o Mutualassistancerequestbyonegovernmenttoanotherforassistancewithregardtocriminal
o DonesoattherequestofalawenforcementagencyliketheFederalPolice

o Internationalcrimepresentsparticularproblems.Easeoftravelbetweennationstatesand
o Enforcementisanissueduetostatesovereignty,whichlimitsthejurisdictionofadomestic
o USAignoredICJrulingwhenfoundguiltyofunlawfullyinvadingairspaceofNicaragua
o Somestatesmaylackskills,trainingandresourcestocombatcrimessuchaspaedophiliarings,
o Mainareasofeffortagainsttransnationalcrimeinclude:
o Effectivenessofcoordinationbetweenagencies
o Levelofcomplianceamongweakerandpoorerstates
o Cooperationandsharingofskills,resources,fundingandintelligence

Legal Studies: Crime Summary Notes 2015

o UnlikelytosubsideasworldchangessuchasdrugtradehowevercombatedwithUN
o ICCpowerfulsendsmessagetopowerfulleadersthatsovereigntymaynotbetheiranswerto
o Coercestatesintoabidingbyinternationallaw
o Promisingtoolincombatinginternationalcrimepotentialtomakedifferenceinpreventing
o Deterrentagainstrogueleadersandattempttobringjusticetovictimsofatrocities
o Onlydealwithatrocityafterithasbeencommitted
o Courtoflastresortandhearscasesbasedonconsensus
o RareinterventionbyUNSCnointernationalforceorpolicethatcancapturesuchoffenders
o E.g.PresidentAlBashirchargeslaid5yearsafterbegan
o Rwandaatrocitiesdiscovered15yearslater500,000deathsin100days
o Costofinvestigationsandprosecutionslimitsthepowerandeffectivenesspermanentcourtis
o LimitedinthesenseoflackingmostinfluentialcountriesincludingUS,ChinaandIndia
o Warcrimetribunals:arerareduetolackoffundingandhaverarelyledtoconvictionsortrials