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Key legal concepts and features of the criminal law system

Types of crime the common feature is the intended aim to cause injury. Homicide the law states that a person being unlawfully killed constitutes a homicide, however some exceptions include self-defence and during war. The determination of a casual relationship needs to be made; this involves the direct link between the actions of the accused and the harm caused to the victim. In most cases there is a distinction between those actions that are considered deliberate and associated with being careless. the four situations classified as homicide murder- this attracts the most severe penalties, and must be proven; An act took place with the deliberate intention to kill Deliberate act to cause harm, in which death took place Reckless indifference to human life Constructive murder is the accidental killing during the commission of a crime. Even though it is the least occurring crime, it is the most feared by society. Manslaughter- this is unlawful killing, and the accused is not charged for murder; there are 2 types of manslaughter: 1. Involuntary- when the accused did not want to kill another, but acted in a negligent way causing death 2. Voluntary- when the accused did intend to cause death, but there were mitigating circumstances Infanticide- this is when a mother causes death of her baby at less than 12 months of age. The crimes act of 1900 (NSW) requires the mental state of the mother to be taken into account. Death by reckless driving- this category was formed because an increase in stats in relation to the amount of deaths caused by driving. Assault this is the threat or action of causing physical harm to another person. However the actual action is referred to as battery, even though there is no modern law distinction due to causing serious mental harm. However the circumstances in which consent is given (like in a sport) or in self-defence is considered to be legal. Aggravated assault- the crimes act 1900 describes it as an aggravation, causing serious harm and attracting serious penalties Sexual assault this includes any form of unwanted sexual contact no matter their relationship. However even with consent in a relationship of heterosexual or homosexual where the involved are under 16 is considered to be illegal (legal age of consent is 16). In 2003 the amendment to the sexual offences bill of NSW changed age of consent for homosexuals to 18 years. Such an intercourse relationship with someone over the age limit is known as statutory rape. It is further illegal if consent was given in an unaware state, such as drunk or under the influence of a date rape drug. The maximum penalty is 14 years, except aggravated sexual assault (under age, disability or excessive violence) can attract up to 20 years

Economic crimes this covers the wide category of crimes that damage or result in the loss of another persons property or white-collar crimes. It is one of the most common types of crimes committed. Crimes against the property larceny or theft this is the removal of another persons property without their consent. However for a charge to be made the intention of not returning it must be made. breaking and entering this occurs when a person illegally enters a building in order to commit an offence. robbery this is the crime of taking the possession directly off them or their vicinity, and is considered a crime against the person as it usually contains the threat of violence. When such violence includes the use of a weapon, the charge is escalated to armed robbery. White-collar crime these crimes are usually committed by professional people in the context of business. They dont usually involve threats. Tax evasion this can include frauding a tax form or using tax avoidance schemes for millions of dollars. The use of tax havens is not illegal, although the governments are constantly tightening the tax laws in order to reduce access to them. Computer crime The law needs to constantly change in order to keep abreast new technology. This may include changing bank accounts, credit card fraud and spreading computer viruses. This even includes the illegal copying of programs. insider trading this is when someone with special knowledge about an organisation uses this information to scam the company. It is illegal as it gives investors an unfair advantage, and can result in imprisonment. Crimes against the state As not everyone has the same morals as the state, this may result in people to break laws and commit crimes against the state due to a compromise of their ethics. Such acts may include sedition, which are the crimes against the government and attract the harshest penalties due to a breach of alliance to their country, causing harm to the monarch. Extra precautions are taken, including the introduction of the anti-terrorism act 2005 (cwlth). It has attracted much controversy and criticism in reference to the rights of the citizens and human rights. It is also assumed that the government is taking advantage of its power in eliminating any threat by diminishing a persons right to free speech. Public order offences This is the disruptions of societys activities. This includes indecent behaviour, offensive language, disorderly conduct and even prostitution. They provide the best example on societys moral and ethical views influencing the law. Traffic offences These are the most commonly practiced crimes. The crimes act of 1900 and traffic act of 1909(nsw) outlines these offences and the severity of punishment of them (attendance of court is required). Drivers have the right to question the validity of the fine, in which case it is heard by a local court magistrate. Regulatory offences These are of less severity, and sometimes arent considered to be crimes. These crimes have strict liability. Preliminary offences

It is an offence to attempt to commit a crime as stated in the crimes act 1900, and a charge can be implied if their behaviour is directed to committing a crime. Conspiracy is found within common law, and exists if 2 or more people join in committing a criminal act. A charge may be implied, even if no act has been committed, but the act has been planned, however it is difficult to prove. Victimless crime This is a crime that caused no actual harm to any other person, than the one who committed it. These types of crime are also known to harm society moral standards. Sources of criminal law Common law This type of law is often referred to as judge-made law, and requires the use of the judges discretion in making judgements. It is usually used when no appropriate statute law exists, and may set precedent. Statute law This refers to the laws made by parliament. In NSW most crimes can be identified by the crimes act 1900 (under statute law). The parliament has rights under section 5 of the NSW constitution act 1902 to make these laws, except when it comes into conflict with federal law. The court structure Each level of court is designed to hear and is empowered in different matters. A significant factor is the right to appeal to higher courts, which can overrule the decisions of the intermediate or lower courts. The powers and roles of all the courts together form a jurisdiction. Lower courts Local court This court is presided over by a magistrate and was created under the local courts act 1982 (NSW). Its 2 main functions are: 1. To hear and decide cases that involve summary offences 2. To conduct committal hearings where the accused is being charged with an indictable offence. The decision of prima facie must be made (whether the case is reasonable); this process saves time and reduces costs. The childrens court This court has jurisdiction over summary or indictable offences if: The accused was less than 18 when charged Less than 21 years when charged for a crime committed less than 18 years of age Exceptions include serious offences such as murder, aggravated sexual assault and some traffic offences. These cases are heard in a closed court session. Its main aim is to achieve rehabilitation, as its most sever punishments are juvenile detention prisons. The coroners court The jurisdictions of these courts are: The enquiry into the cause and manner of death where suspicious with violence The cause of fires that damage property These investigations are made by a coroner/ magistrate who are required to conduct coronial inquiry. Its role is to find sufficient evidence to take the accused to court. Intermediate court District court These courts were established through the district court act 1973 (NSW), and are presided over by judges appointed by the governor. The jurisdictions of these courts are indictable offences, and are usually heard by a judge and jury. Higher courts The Supreme Court and the court of criminal appeal

This court was established under the charter of justice in 1823. Its jurisdiction is to hear the matters of the most serious indictable offences, as well as appeals. The court consists of a chief justice and many senior judges, who are appointed by the governor, along with 12jurors. The Supreme Court also has jurisdiction to hear appeals of magistrates who have misinterpreted the law (known as a stated case). The appeal court includes 3 or more justices. In 2006 parliament removed the double jeopardy rule in reference to an appeal being denied. High court of Australia This court is the most senior court in the country since the Australia act 1986 (Cwlth). Jurisdiction in criminal matters only extends go appeals, in which case it must: Relate to a matter of public importance Is required in order for justice to be served Is required because of confusion between earlier rulings of various courts Many of the appeals made originate from the state courts of criminal appeal or the federal court in relation to federal law and the constitution, which requires the interpretation of the constitution referred to as constitutional challenges. Factors affecting the definition of crime and criminal behaviour Crime The criminal law aims to prevent behaviour society finds unacceptable. The change in technology can change the nature of such crimes, as does the media play a role in changing the views of society. Factors affecting criminal behaviour There are wide variations in the degree to which people actually do comply with the law. Social and economic factors The majority of people recognise it is in their best interest to preserve society; however people who are disadvantaged perceive fewer reasons to obey the laws. Especially if the accused has been faced with abuse, poor education or mental breakdowns, they may blame society for the cause of their problems and retaliate. Genetic theories This is a controversial theory that genetics can cause criminal behaviour. Political factors These are the groups who challenge authorities and the government, and thus their laws. This can take action through peaceful demonstrations, but may lead to violence, terrorism and even assassinations. However, sometimes politically motivated criminal activity may be considered as justifiable. Elements of a crime To find someone guilty it is necessary to prove that: The accused had the intention to commit the crime The accused actually acted on this intention There is a link between the accused actions and the crime committed Mens rea This is the guilty mind and refers to a persons intention to commit a crime. The prosecution must prove that the accused was aware that their actions would cause a crime. Actus reus This is the act element and refers to the physical performance of the criminal act. Causation Apart from the action, the prosecution must prove the link between the intention and the action. Distinguishing between summary and indictable offences A key requirement of the legal system is to deal with matters efficiently, so offences are split into:

Summary offences- minor offences dealt with quickly Indictable offences- serious an complex crimes that require great legal scrutiny

Parties to a crime There are often more than 1 party involved in committing a crime, however some are more responsible than others, determining the level of punishment. Principle in the first degree This is the perpetrator; the person who actually commits the act. Principle in the second degree This is the accessory to the crime, meaning they were a participant in the act, however not a major involvement. Accessory before the fact This is the assisting of committing the criminal act, however are not involved in its participation. Accessory after the fact This is helping the criminals after the crime, however is not aware of it during or before the crime has actually been committed; this is only recognised as an offence in serious situations. Defences to criminal charges This is providing an excuse for committing a criminal act, categorised into 2 categories: Complete defence This is the justification that results in an acquittal. Mental illness: the defence of insanity must be proven by the defence, rather than the prosecution. The court is required to acquit due to the lack of mens rea into a mental rehab centre. Self defence: this is the provision of defending yourself against harm, however the controversy is according to how much force was needed, thus connecting the actus and mens rea, making it an all or nothing defence. Compulsion: 1. Necessity- this is if the crime was committed to prevent another more significant crime from occurring

2. Duress- this is if someone was forced to commit an act against their will, due to the belief of a threat imposed on them. Consent: this is a defence usually used in sexual assault, but is harder to prove. Partial defences o Provocation: this is the action of one that results in a crime of another person. To prove this: 1. The victim must have caused the action 2. The fact that anyone may have been provoked in these circumstances The ordinary person test must be proven through a list of factors being fulfilled. o Substantial impairment of responsibility: this is the abnormality of the mind that impairs their mental illness, often used not when a mental illness is consistent. The criminal process and the role of discretion Reporting a crime Police rely on members of the public to report crime; community based programs are designed to create teamwork with the police and the aim of preventing crime. Investigation The investigation of crimes is determined according to the police discretion, with the use of variety of tools. Arrest There must be a legal right to detain a person; however the police have discretion to arrest: They believe the person has or is about to commit a crime They witness a person committing a crime A person is loitering at night and the police suspect a crime They have an arrest warrant In order for an arrest to be legal the police must inform the person that they are under arrest and why they are under arrest, and are entitled to use any force necessary to arrest the accused, except for firearms. The police have the right to search an arrested person according to common law. Interrogation A private citizen cannot be forced to answer, this is known as the right to silence, in exception to traffic offences. The right to a lawyer and parent present if under 18 must be made aware. However, if a juvenile lies about their age, a magistrate can accept evidence told without a guardian present. Summons This is instead of being detained; it is a legal document that gives details of the charge and the consequences of failing to attend court. Bail This is allowing freedom until their trial, due to the extensive period of time that may occur. However, courts have the choice to hold the accused in remand until their trial. Bail is usually conditional, and may include a money deposit, supervision or surrendering their passport. The criminal trial The adversarial system This is the involvement of the prosecution against defence. This is the involvement of an unbiased jury and judge who have no involvement in collecting evidence. Summary hearing These involve summary offences and are dealt with quickly by the local court by a magistrate. Committal hearings

This is when indictable hearings are first held in the local court, determining if the prosecution has a case (prima facie) The plea Guilty plea: the case is dealt with more quickly, and the matter is taken straight to sentencing. Not guilty plea: the case must go to trial and the prosecution must convince the jury. Plea bargaining persuades the accused to own up to the charge, however it reduces the charges, maybe lessening the charges. Evidence The accused is considered innocent until proven guilty beyond reasonable doubt by the prosecution, referred to as the burden of proof. This is due to the presumption of guilt would disadvantage the defendant. The jury A modern jury consists of 12 members that determine the guilt or innocence beyond reasonable doubt, however plays no role in determining the sentence. The verdicts must be 11-1 except for murder cases, however reducing the number of hung juries. Arguments for Arguments against Biased people excluded Jurors dont understand the law Society represented in the Can be influenced by the style of criminal justice system argument rather than the evidence Several viewpoints and perspectives Media can influence the jurors decisions More difficult to corrupt 12 than to corrupt 1 Most people dont want to serve on jurors Juries dont explain the reasons for their decisions. The appeal Appeal can occur on the basis of an error in the law or if new evidence comes into light or in relation to the severity of the sentence. Prosecution can only appeal in accordance with the sentence, and must go through the court of criminal appeal. The application must be approved by the high court and also prove that the court is likely to find favour in the defendant. Personnel The police Their role is to investigate arrest and gather evidence to use against the accused in court; they also usually perform the role of prosecutors in the local court. The police also perform secondary duties involved in the community such as traffic control, informing of death and injuries and establishing educational programs. Prosecutors Their main role is to represent the crown (society) before the court. These prosecutors are appointed by the director of public prosecutions (DPP), who is appointed by parliament; however is independent of parliament and the government. The DPP in consultation with the police decides whether a case is worth prosecuting according to its success and the interest of the public. Defence lawyers This is done by solicitors within the local court, and barristers within the higher court, as the solicitor works and advises on the case with the barrister. The role of these lawyers is to represent their clients to the best of their ability, and cast doubt on the prosecution. The lawyer must always act on the interest of the client, despite

their own views. Any information disclosed to the lawyer is protected under the lawyer- client privilege. Magistrates These are the local court judges appointed by chief magistrate, independent of the government. In the local court, it must determine the innocence or guilt and the sentence. Judges They conduct trials according to the rules and principles of the law, and are usually appointed to the judiciary after years of another legal profession. Their role includes: Ensures that the case is conducted according to the rules of the court Excludes illegal, misleading or irrelevant evidence Ruling on points of law Advises the jury of their role Passes sentences if the accused has been found guilty. They are expected to remain impartial and must be based on the rules of the law. They are expected to keep their personal opinions out of view, however cannot be dismissed unless voted on by the legislative council. The role of the legal aid commission An accused person does not have automatic right to legal representation, however without representation; a fair trial is unlikely to occur. The legal aid commission ensures this right and is funded by the government. Anyone can access free legal advice for 15 mins, however assistance beyond this level requires a formal application involving the means, merit and jurisdiction test. International crime Types of international crime Due to an increase in technology, international crime rates have increased, however laws can only be set within a certain jurisdiction, however when crimes occur outside the jurisdiction it becomes harder to control. Crimes in another jurisdiction This is when a citizen commits a crime in another jurisdiction, and must therefore be punished according to their law. It is possible for Australian citizens to be charged under Australian law even if their offence was committed within another jurisdiction, however commonwealth government becomes involved. The commonwealth also has power to develop laws to prevent their citizens from committing certain acts overseas. Transnational crimes This is the breaking of the law in more than one jurisdiction. These crimes are difficult to prosecute as laws are differing between jurisdictions, resulting in negotiation between nations in terms of investigation, arrest and sentencing. Crimes against international law This is tried by the international criminal court according to signed agreements and the UN declaration of human rights: Against peace Against humanity Slavery Torture Aggression Apartheid Piracy

Sources of international law If the international community condemns certain actions, they become illegal under international law, however many are created through treaties, however only applies to the signatory nations. Treaties Bilateral treaties- signed by 2 nations Multilateral treaties- signed by more than 2 nations This only comes into effect when certain conditions have been made, and a number of nations have signed, ratifying the treaty. Legal issues and remedies in criminal law Creating social order through regulation, coercion and education The main aim of criminal law is the maintenance of social order. Society also reinforces acceptable behaviour by indirect means such as education. Education The exposure to rules and consequences helps children to establish a sense of right and wrong, and teaches responsibility, individuals without that knowledge are more likely to undertake criminal activity. Another key role is to inform people of the law. Regulation This is a key aspect of the law, according to peoples actions and behaviour. It refers to how criminal acts are dealt with. Coercion This is the force that regulates the behaviour of the people in order to obey the law. Many people follow the law simply because society expects them to, and this social expectation has coerced people into following the law. Crime prevention This is better than investigating and dealing with the criminal act. Situational crime prevention This involves making it difficult for criminals to commit criminal acts due to the increase of being caught. Such prevention is often referred to as opportunity reduction. The increase in technology and communication further increases the amount of criminals getting away from committing a criminal act. Social crime prevention This attempts to reduce the factors that are likely to cause a person to commit a crime. Lawmakers are beginning to see to see the social and economic value in social crime prevention. The most effective strategies are intervention and prevention programs offered by the community. Enforcing the law through punishment The purpose is to protect society from criminal actions and to set a deterrent factor for the rest of society. Rehabilitation It is another function of punishment that attempts to deal with the issues more sympathetically through counselling, education and training. The main goal is to reduce recidivism (continuation of crime) by creating opportunities for criminals to improve their life after release. Deterrence This is a key feature in the reduction of crime. It is the punishment that comes with the conviction for a crime that helps to reduce the prevalence of the crime. The 2 main types are:

1. General deterrence, which makes an example of the criminal act. 2. Specific deterrence, aims to deter a specific criminal from reoffending Retribution This is human nature that demands wrongs to be avenged. It is sought on behalf of the victim and is a fundamental role of law (only i.e. no personal retribution). Incapacitation This is the most direct way of protecting society from criminals as it prevents them access to society. It can be seen that the legal system is ineffective in preventing crime, as the most effective way is to lock them up. However, we have no control over their actions after sentencing has been complete. Reintegrative shaming This is the aim to shame offenders by bringing them into contact with their victims, in order for the realisation of the suffering on their offenders and is seen as a effective method of coercion in rehabilitation, however does require remorse on behalf of the criminal. It the most common method for young juveniles and reduces costs and involves the victim. The sentencing process The sentencing hearing It is the role of the judicial officer (magistrate/ judge) to hand down an appropriate sentence. This consists of a number of factors including pre-sentencing decisions compiled by experts. Evidence During the hearing, only the facts presented within court can be taken into consideration when making the final decision. The role of the prosecutor and defence The role of the prosecutor is to ensure the defendant gets the most appropriate penalty. Their role is to present evidence and the effects on the victim and society. They must also convince the judge that the sentence they request would be just and a deterrent factors for other criminals. The defences role is to reduce the severity of the sentence and usually tries to establish a good reason and reputation for the defence. The role of the victim They have the right to a victim impact statement outlining the effects the crime has had on them and their families. It is presented to the court and is seen as allowing victims to be more accessible to the legal system. Factors that affect the sentencing decision The sentences vary according to the circumstances within the case. Judges are required to justify the sentence in which is handed down, so if an appeal is made the high court can understand the reasons behind the sentencing decision. The purpose of the punishment The judge must balance the needs of society with the rights of the accused. However a problem arises when society demands a sentence not permitted by law, thus the judge must consider the effects on society and the balance on the accused. Hence it is the hardest decision made by the judicial officer. Circumstances of the offence The circumstances are objective features referred to by the prosecution in an aim to reinforce the severity of the crime. It usually occurs depending on the extent of violence, the effect on the victim and the accused intentions. Circumstances of the offender The law makes provision for the accused known as subjective features which includes the circumstances of the offender. This usually includes personal circumstances and the circumstances that may have an effect on society.

Aggravating and mitigating circumstances Aggravated means it is particularly severe. This includes: If the victim is of a certain age making it particularly damaging If the offender was in a position of trust If violence was involved Aggravating circumstances increase the sentence as mitigating circumstances allow for a lesser sentence; however they are not a defence to the crime and are raised by the defence to lessen the severity. Judicial discretion and the limits of discretion This refers to the judicial officers power to make decisions on what they believe to be right or wrong, and allows for specific circumstances to be taken into account. However limits are placed on the power of discretion including the rule of precedent. Penalties Different types of punishment are outlined through the legal system and reflect the moral and ethical views of society (corporal: pain and capital: death is outlawed). Fines This is the most common penalty within the legal system and is usually awarded for summary offences. The judge has discretion; however there is a statutory limit depending on the crime. Its advantageous is that it costs little and is a source of revenue for the government. However, it is disadvantageous as it affects the offender differently depending on their personal circumstances. Bonds This is a contract that relies on the offender to commit to certain conditions; failure to comply will lead to other punishments. However if another crime is committed while under a bond, the contract becomes extinguished and harsher penalties are applied. Probation orders This is when an offender is placed under supervision of a probation officer (also regulates behaviour within a contract). If the contract is not fulfilled the offender can be punished and convictions recorded. If the contract is fulfilled the offenders record is extinguished and no conviction goes on record. Community service orders It is usually common to punish minor criminals. It requires the offender to work on a community based program, however if they fail to comply the offender is further punished. This is an effective punishment as it benefits the community and the offender by offering them a sense of rehabilitation. Home detention This is the confinement of an offender to their own home or a restricted area. This is usually monitored by an ankle or wrist tracking device. They are required to look for a job and are constantly tested to ensure no breach of their conditions has occurred. This is another form of rehabilitation, saving the community expenses and shielding them from the prison experience. Periodic detention This allows offenders to serve their detention in certain periods of time, enabling them to maintain a stable lifestyle; this is to prevent family breakdowns and recidivism. Their weekend detention may include imprisonment or community service. Harsh penalties are imposed on the criminals who fail their duties; this is required in order for the program to be successful. Imprisonment This is the most severe penalty; however there are also penalties within prison such as the level of security, depending on the criminals. However a major disadvantage is the exposure

of less brutalised criminals to other more violent criminals. Prisons are harsh and brutal, where violence is common, as they are old, overcrowded and lack sanitation. It is a place where more crimes occur as the prisoners are left with nothing or little to do. The prison cycle raises the theory as to whether they really rehabilitate prisoners or whether they just lead to differential association theories (the influence of other criminals). Even though the prison system protects society from criminal behaviour it leads to more violence as there is little rehabilitation within the prison for when the criminals are released. Prisoner rights They have fewer rights than any other group within society, and those that they do have can be removed, as every act is regulated and limited. Their constant supervision may lead to a loss of responsibility causing problems for society upon release. Everything is checked and visits are limited and supervised, as personal belongings can be denied and seized. The prison authorities have a duty of care ensuring all basic needs and the right to unlimited visits from their legal representation. Prisoners also have the right to sue the government for mistreatment under the felons (civil proceedings) act 1981 or sue other prisoners for mis-treatment. Penalties that is no longer acceptable Capital punishment This is punishment by death. Australia became a signatory nation for civil and political rights and the second protocol to the covenant abolishing the penalty including it within the commonwealth constitution. However there is the call for the reintroduction of the penalty in the hope the penalty will deter the crime, however statistics show the same result despite the penalty. Corporal punishments This is the punishment of inflicting physical injury and pain, not only was it used in prisons but was also a type of punishment within institutions such as schools. Even though it is now illegal within Australia, many nations still follow this despite its inhumanity. Penalties that infringe human rights laws Fundamental human rights are protected under international law and the use of agreements prevents the use of inhumane punishments. If someone is sentenced to such a punishment under a signatory nation, they can appeal to the UN human rights committee for assistance. However this is not always physical punishment, it may include the deporting of refugees by the Australian government. Post-sentencing decisions Security classification Offenders are given a security rating based on their crime and the likelihood of their escape. They usually vary from minimum, medium and maximum affecting the cost of imprisonment. Prisoners have the chance to move from security ratings depending on their behaviours. Protective custody These are for the prisoners who are in risk of being attacked by other prisoners, and are housed away from the general prison population. This usually occurs for previous authority figures such as police officers or politicians and sexual assault offenders of children, where other prisoners may be seeking retribution. Parole This is conditional release for a prisoner before the completion of their sentence; however there is a limit to the sentence that must take place for a crime before eligible for parole. Prisoners dont have automatic access, but is determined by their behaviour and compliance

to their sentence. Within parole there are many limitations and expectations that must be fulfilled in order to be eligible. Dealing with international crime Opportunities to commit international crimes have increased through the advancement of technology, making it ineffective as law enforcements are confined to their own jurisdictions, and thus prosecution is complex and difficult. The international criminal court They are usually heard in ad hoc international criminal courts, and are temporary courts only used when required. This allows for its convictions and sentencing being equal. In 1998, all nations agreed to set up a permanent court to deal with international crimes committed by individuals. Extradition This is the transfer of offenders from a jurisdiction in which they are apprehended to the jurisdiction in which the crime was committed and thus the jurisdiction they will be tried under. For this to occur between nations there must be a bilateral agreement allowing for the extradition of a criminal to occur. A current criminal justice issue Domestic violence It is defined as violence that is currently associated with the person, i.e. in a relationship with the person. It usually involves physical and sexual violence however includes emotional, economic and social abuse. This type of crime usually goes unreported. Morality, ethics, commitment, effectiveness and reform in criminal law Morality and ethics in criminal law The law is a reflection of societys standards of behaviour. Public morality is the views of the whole society, private morality is the views held by a certain individual, problems arise when the 2 conflict. A key feature of public morality is that it is constantly changing. The difference between morals and ethics is that moral is doing what is good, as ethics are doing what is right, for example the euthanasia dilemma. Morality and the law in other countries In many societies religion is a major influence of the morality within the law. For example punishment by death because you committed adultery or blasphemy in a middle-eastern nation. This may cause many problems with tourists who may have different morals, and thus be charged due to such differences. Commitment to the law Society likes to value and obey the law, as it protects them and their rights. The habit of obedience towards the law is reinforced through the education and upbringing of individuals in society. Commitment to unjust laws A person has a moral obligation to obey laws that are just. This includes a law that: Serves a common good Evenly distributes the burden Shows no disrespect for God Does not exceed the power of the lawmaker However, we dont have the right to evaluate a law, but must obey it anyway unless our political representatives reform the law. Effectiveness of criminal law Effectiveness for individuals This is the balance between the rights of the accused and the victim. Equality

This is a key feature of the legal system. However the difference in wealth allows for inequality before the law due to different levels of access. This is the nature of the adversarial system, being experience is more convincing than the evidence itself. Plea bargaining is another major aspect in concern to creating equality between 2 people who commit the same crime but are awarded different sentences. Accessibility The criminal justice system must provide everyone with the opportunity to defend them and is dependent on: Cost Time Knowledge Those who dont have a substantial income must request legal aid, however due to the revenue of the government it is very limited to those most in need. Delays are a major concern to the accessibility of the law due to limited time effectiveness. Enforceability It must be enforceable if it is to be effective, and thus must be able to be determined on within a trial if the accused was to be caught. Resource efficiency As the current legal system can only operate to a limited source of funds there is a limited amount of resources offered to society in reference to legal proceedings. Such effective ways include plea bargaining which also reduces the amount of time used within a criminal proceeding. These costs usually consist of police pay, judges, juries and legal representatives and a limited amount to community based programs. Recognition of individual rights Rights of the victim Rights of the accused To have their allegations Not to be illegally searched investigated To remain silent To be informed of the progress of To apply for bail investigations To have interviews recorded To be informed of their role as To be detained only if arrested witness Not to have prior charges or To be protected from the accused convictions detailed before the To make a victim impact statement verdict is given Not to have illegally obtained evidence used against them Effectiveness for society It is through the law that the collective values and traditions of society are maintained, thus the breach of rights of an individual is a breach of rights of society and must be dealt with quickly. However, usually the rights of the individual are often breached in the course of achieving justice. Measures for resource efficiency Justice is questioned according to the allocation of funding in comparison to the reporting of crimes (clearance rate) being low. The level of efficiency is determined differently according to the sector in reference to the clearing rate of convictions and the number of recidivists. The law as a reflection of community standards Community standards can easily be reflected through the media and other communicative ways. The key questions when considering community standards are: 1. What standards are the law expected to uphold? 2. Does the law respond effectively to changes in community attitudes? 3. Are the community representatives really defending our views?

This can be viewed through the judges and obiter dicta; the reasons for their decisions. Community standards are often reflected by the political decisions made by governments, and thus the electoral power of the government is a powerful force. Opportunities for enforcement, appeals and review The role of the police is to enforce the law and prosecute the accused. The department of public prosecution provides extra legal scrutiny in the case against the accused and ensures police are held accountable in their investigations. Both parties have the right to appeal for a lesser sentence on behalf of the defence and the prosecution propose a heavier sentence. Balancing individual and community rights and values The legal system must provide justice by balancing between the protection of rights and not disadvantaging individuals in the process. Criminal law reform Agencies of reform The Australian law reform commission This is responsible for reforming federal law and the mechanics of the federal judicial process and that the laws are still relevant to society. The NSW law reform commission It has an interest in individual cases and has matters referred to by the AttorneyGeneral. Parliaments and courts as sources of law reform When a law has been advised to be reformed, they change it into legislation, which is also a reflection of the politicians views. Courts allow for the definition of legislation and the setting of new precedents. Conditions that give rise to the need for reform Changing social values and composition of society The law must reform to suit the value changes of society. This either leads to decriminalisation or tough on crime approach. The request from society further influences politicians. The law aims to accommodate the different ethnic groups and their range of values. In criminal law there has been little reform driven by the changing composition of society, however there have been structural changes. New concepts in justice The changes occur as the complexity of society changes due to punishment changes. The new concepts of punishment such as rehabilitation programs have offered an increase in the achievement of justice and programs that allow offenders to relate to their victims increasing their sense of empowerment. Failure of the existing laws When existing laws have failed they are able to be amended or extinguished by the parliamentary bodies. International law reform Under the Australian constitution, only the commonwealth government has the right to sign into international treaties and must be first ratified under the domestic law. The impact of new technology It is a major driver of law reform in order to combat the new technological changes and has also enhanced new forms of technology to discover evidence.