Legal Studies Crime

1. The Nature of Crime

The Meaning of Crime
Crime is defined as any act or omission of duty that results in the harm of society and is punishable by the state Crime harms society as a whole and is considered as public law

The Elements of Crime

Prosecution must prove existence of all elements beyond reasonable doubt Actus reus refers to the action of crime committed Mens rea refers to the thought of performing crime Causation is the link between act and the crime o Blaue V R (1975)

Strict liability offences are minor (speeding) and do not need a Mens rea

Categories of Crime
Offences against persons o Involve injury or threat of injury to another person e.g. assault or manslaughter

Crimes against the state or sovereign o Criminal acts against the government e.g. treason or sedition

Economic offences o Infliction of economic loss upon the victim e.g. property damage or white collar crime

Drug offences o o o Involves the use, supply and possession of prohibited drugs Drug Misuse and Trafficking Act 1985 (NSW) SMH Travellers Advised To Miss Greece

Driving offences o Involves breach of traffic laws e.g. speeding or dangerous driving

Public order offences o o Unacceptable behaviour e.g. offensive language SMH Singapore Sticks To Ban On Chewing Gum

Preliminary offences o o Planning/Attempting a crime Conspiracy involving two or more people agreeing to commit a crime

Summary and Indictable Offences

Summary offences are minor offences e.g. shoplifting and are dealt in the Local Court Indictable offences are more serious e.g. murder and are held in District Court or higher o Goes through committal hearing Local Court before a magistrate to determine prima facie (enough evidence)

Parties to a crime
Principal in the first degree people directly responsible for the criminal act e.g. robbing a bank Principal in the second degree people who assist the offender to commit the crime e.g. drove a getaway car Accessory before the fact people who helped plan the crime e.g. stole bank plans Accessory after the fact people who assist offender after crime has been committed e.g. hides offender from police

Factors affecting criminal behaviour

Social- People, and in particular, their attitude to the law and the authority of the state, are shaped in part by the society they live in. Factors such as upbringing and personal networks can impact, often negatively, upon a persons view of the law and respect, or lack of, for it. Economic- People who suffer economic disadvantage can feel disconnected from mainstream society and its value and hence may feel less respect for the law. Further, poverty, in terms of need can also be a factor, particularly in property offences. Genetic- This is a controversial theory, rooted in 19th century phrenology studies and more recently in DNA analysis that suggests there is an inherited genetic basis to some criminal behaviour, particularly behaviour that is violent. This theory has been popularised by the media. However there is no conclusive evidence to support a genetic based theory of explaining criminal behaviour. Political- Individuals and organisations may oppose certain criminal laws, or even the whole notion of the state in the case of anarchists, on political grounds. They therefore believe that the law is wrong or unjust and may not feel compelled to comply with the law. Political motives cover the spectrum of criminal behaviour from public order type offences through to violent criminal behaviour. Self-interest- Self-interest and greed can motivate people to commit crime; it can be seen as an easy road to power or wealth.

Crime Prevention
Situational crime prevention o Makes it difficult for criminal to commit the crime and increases chance of being caught e.g. putting bars on windows and house alarms Attempts to reduce factors that cause people to commit a crime Drug and alcohol education for youth Youth Justice Conference created by Young Offenders Act 1997 (NSW)

Social crime prevention o o o

2. The Criminal Investigation Process

Police Powers
Police powers are define by statute law esp. Law Enforcement (Powers and Responsibilities) Act 2002 and Bail Act 1978 NSW Power to arrest Power to issue warnings, cautions and infringement notices in relation to minor offences Right to obtain identification information Power to stop and detain a person for purposes of search on reasonable grounds of suspicion Power to enter premises Emergency powers can be authorised under serious circumstances e.g. large scale public disorder

Reporting a crime
Citizens have discretion regarding whether to report a crime or not Sexual assaults are offences which are under reported, as is domestic violence o o o Fear of retribution Apathy Shame

Investigating a crime
Investigation o o Police commence an investigation after they are aware that a crime has allegedly occurred Police discretion is dependent upon severity, resources etc.

Gathering Evidence o o Evidence must be gathered lawfully i.e. search warrant Forensic evidence, DNA, finger prints etc.

Use of Technology o o Authorised by Crimes (Forensic Procedures) Act 2000 NSW CCTV, DNA evidence etc.

Search and Seizure o o Police have no general power to search the public Police can stop and detain on the basis of reasonable suspicion o o o Crimes Act 1900 NSW and Summary Offences Act 1988

Strip searches must be justified appropriately Person must be told the reason of search Police may use specially trained dogs to search for drug suspicion Drug Misuse and Trafficking Act 1985 NSW

Use of Warrants o o o o Police can apply to court for authorisation to access premises on ground of reasonable suspicion Are able to use reasonable force to enter premises They may seize an item believed to be connected with the offence It is a criminal offence to obstruct police during their duties of carrying out a search

Arrest and Charge, Summons and Warrants

Arrest o o o o Charge o o Formal process whereby suspect is charged with particular offences and receives notification of their first Court date Police can exercise discretion in determining which offences suspect is charged with People can only be forced to attend station is if they are arrested by police Police have to inform suspect of reason for arrest Suspect is cautioned Police can arrest based on warrants, witnessing crime or suspicion of a crime about to be committed

Summons o o Police can issue Field Court Attendance Notices (Field CANS) for minor offences e.g. drink driving Issued by police on the spot and provide court attendance date and details

Warrants o Court may issue warrant for police to arrest a person if there is a sufficient evidence that a prima facie case exists

Bail or Remand
Bail is conditional freedom prior to the verdict, although it can be granted between conviction and sentencing Bail requires that a person charged appear at court at a later date Bail maybe refused by magistrates and judges and the accused is remanded in custody o o Bail Act 1978 NSW R V Wakefield (1969) Bail was refused based on severity of the crime.

Detention and Interrogation

Police cant detain suspects for the basis of questioning Police can only lawfully detain for up to 4 hours then person must be released or charged Accused has right to remain silent, not to answer any questions unless specifically compelled to do so by the law e.g. terrorist situations

Rights of Suspects
Suspect has right to be informed about the 4 hour investigation and has the right to contact a guardian, lawyer etc. Cautioned that anything said may be taken down as evidence

3. Criminal Trial Process

Court Jurisdiction
Local Court o Most criminal cases begin here except ex-officio indictments.
o o o o o o

Presided over by Magistrate. No jury. Deals with summary matters and less serious indictable matters. No appellate jurisdiction. Does not hear appeals. Hears committal proceedings regarding serious matters, to determine whether a prima facie case exists, i.e. if there is sufficient evidence for the matter to be heard by a judge and jury.

Childrens Court o Deals with offenders fewer than 18 years or 21 years if they were less than 18 years old when charged.
o o o o o

A closed Court. Presided over by Magistrate. No jury. Rehabilitation is the primary purpose of sentencing. Imprisonment is a last resort.

Coroners Court o Presided over by Coroner.

o o

Deals with unexplained deaths and fires. Inquisitional approach.

District Court o Has appellate jurisdiction from the Local Court for both severity and de novo appeals, which is a type of appeal in which the appeals court holds a trial as if a prior trial had never been held.
o o o

Presided over by a Judge. Trial by jury. Deals with majority of serious criminal offences e.g. armed robbery.

Supreme Court o Has appellate jurisdiction from District Court and Local Court which includes stated case.
o o o

Deals with error of law by Magistrates. Presided over by Judge. Trial by jury.

Deals with most serious criminal offences e.g. murder, manslaughter.

Court of Criminal Appeal o Has appellate jurisdiction from the District Court and Supreme Court,
o

The highest criminal appeal Court in NSW.

High Court 1. Highest appeal court in Australia for both criminal and civil matters. 2. Leave by the court needs to be granted for the appeal to be heard. 3. Leave usually reserved in criminal matters for:

Existing areas of the law that require clarification e.g. R v Zecevic High Court decision which clarified the law regarding self-defence and precisely what had to be proved by the defence to establish self-defence. New areas of the law, keeping in mind that the service of justice is an overriding factor in determining whether leave to appeal will be granted.

Drug Court o A relatively new court.

o o

Established and governed by the Drug Court Act 1998 NSW Aims to tackle recidivist behaviour by bringing a more therapeutically focused approach to sentencing; by ensuring that drug dependant offenders receive treatment the court aims to break the cycle of addiction and crime. The court has both Local Court and District Court jurisdiction and operates from the Parramatta court complex, as accessibility is problematic for those offenders not from this region. An additional Drug Court was opened in Toronto in the Newcastle region in 2011.

Youth Drug and Alcohol Court o Commenced as a pilot in Western Sydney in mid-2000.
o o o

Is administered by the Childrens Court. Aims to rehabilitate young offenders whose addiction to drugs and or alcohol has led to a cycle of offending. Brings a multi-agency response to providing support to young people, e.g. Juvenile Justice Officers work closely with health, housing, employment and education workers to assist young people at risk of offending to rebuild stable lives.

The Adversary System

Two opposing parties; defence v prosecution who present evidence for a third party and court rulings are appealed Criticism is that it becomes a battleground

Legal Personnel
Magistrate o o Judge o Depicts the question of law If accused pleads not guilty then magistrate is the question of fact AND law Proceeds over the Local Court

Police o o o Gather evidence for investigations and provide evidence to support cases Prosecutors act on behalf of the state to prosecute crime in court Are officers of the law and present evidence to support courts prosecution DPP is independent of the police and the government Responsible for carriage of indictable matters Provide evidence to support the client/s Operate independently of the government Jury Act 1979 NSW Decide question of fact Prosecutors

Director of Public Prosecutions (DPP) o o

Public defenders/defence lawyers o o

Jury o o

Pleas, Charge Negotiation

Accused must enter a plea of either guilty or not guilty and if refused the court will decide to a plea of not guilty If a plea of guilty is entered, the accused is sentenced depending upon the severity of the offence If a plea of not guilty is entered, the matter proceeds to a defended hearing Charge negotiation occurs between prosecution and defence, where the accused may agree to plead guilty to a lesser charge e.g. actual bodily harm becoming assault o o o Impact upon the victim Impact upon society Resource efficiency and decrease of waiting time/reduction in costs

Legal Representation, including Legal Aid

Legal Aid plays a vital role in achieving justice and equality and is implied in Dietrich v R 1992 didnt receive a fair trial due to lack of legal representation Legal aid is funded by the government and is based on:o o o Means Income and asset test Merit is there a prospect of success for this matter? Jurisdiction is this a case that legal aid can fund?

Burden and Standard of proof

The prosecution has the burden of proof in a criminal hearing and the standard of proof is beyond reasonable doubt

Use of evidence, including witnesses

Witnesses are central to the provision of evidence for prosecution and defence Must be sworn in (oath) before making a statement Witnesses would provide prior written statements to police before court appearances

Defences to Criminal Charges

Complete defence which if proven results in acquittal Partial defence only apply to murder, which reduces to manslaughter Partial Defence Provocation Defendant must prove that their actions were directly provoked by the victim E.g. victims actions would have caused anyone to act in a similar manner Crimes Act 1900 NSW R v Poser Reduce murder to manslaughter

Complete Defence Mental illness English Case of McNaughten (1843) established means to test insanity Defence must prove that the defendant did not understand the nature of the crime due to a deceased mind

Self Defence Crimes Act 1900 NSW Defendant must prove that crime committed was necessary in self defence Zeceivic v DPP 1987

Diminished Responsibility Defendant must prove that they were acting under an abnormal mind which impaired their mental responsibility Doesnt apply if under the influence of alcohol or drugs

Necessity Defendant must prove that crime committed was to prevent a more serious crime from occurring Only operates when other defences dont apply R v Dudley and Stephens court rejected murder as a defence of necessity -

Duress Defendant must prove that the crime was committed against their free will; due to a genuine threat or intimidation e.g. someones life was in danger Cannot apply to murder or manslaughter R v Runjanjic Application of battered spouse syndrome as duress

Consent Not an absolute defence for murder Commonly used for sexual assault cases SMH University Student Cleared Of Rape 2010

The role of juries, including verdicts

The jury is tribunal of fact and is selected under provisions of the Jury Act 1977 NSW There are two types of challenges:o o Pre-emptory to a limit of 3, no reason needed Cause, unlimited, must offer a reason

If decisions is not made; known as hung jury NSW verdicts allow 11:1 or 10:1 and had to be unanimous Jury is sworn in by an oath

4. Sentencing and Punishment

The Purposes of Punishment Deterrence o Objective is to discourage people for re-offending in the future (recidivism) o Specific- aims to deter and individual from re-offending o General aims to send a message to the criminal community Retribution o Punishment fits the crime and depends upon the severity, impact on victim, family, society etc. o Seen as legal revenge from society Rehabilitation o Change the behaviour of offender to avoid recidivism o Partners with Drug Court and Youth Drug and Alcohol Court (MERIT program) o R v Tideman 1976 rehabilitation through 6 months hard labour for drug offences Incapacitation o Aims to protect society by removing the offender from society e.g. serious murderers incapable of rehabilitation

Factors affecting a sentencing decision

Aggravating Factors increases chance of offender receiving a more serious punishment e.g. was victim a child? Mitigating Factors results in offender receiving a less serious punishment e.g. whether offender had pleaded guilty

Regina v AEM 2001 sentencing reduced due to age (16 years)

The Role of the Victim in Sentencing

Victims are permitted to give a statement upon the impact of the crime committed on them and enable equality and justice

Appeals
Defendant has the right to appeal to a higher court upon the severity of their sentence and in some circumstances for the conviction as well Prosecution can appeal if the sentence imposed is too lenient o Can sometimes clash with the views of society

Penalties
No conviction recorded o Used for first-time offenders in summary offences and is authorised by Crimes (Sentencing Procedure Act) 1999 NSW

Caution o Police have the power to caution children and young people in relation to minor offences; is informally recorded

Fine o o o Monetary payment imposed by the court and revenue raised goes to the State Most extensively imposed penalty; as seen in the Article Simpsons Movie Pirate Fund - man was fined $1000 for filming movie on his phone Biased against people with low income; known as institutionalised inequality

Bond o o o Court imposed bond requires that the offender be of good-behaviour and may need to attend counselling Imposed upon Crimes (Sentencing Procedure Act) 1999 NSW SMH Graffiti Artist Gets Good Behaviour Bond

Probation Order o o Places the offender under supervision and guidance of the NSW Probation Service Requires offender to attend regular meetings with their probation officer

Community Service Orders (CSO) o Offender is forced to do community service to repay society with their crime

Home Detention o Requires offenders to stay at home for a period of up to 18 months and a monitored using an electronic tracking device; Home Detention Act 1996 NSW Are required to work from home and undergo and educational program Aimed to improve efficiency of court system

o o

Periodic Detention o o Offender serves their sentence on weekends and perform community service Offenders can maintain link with family and friends; more economically viable as well

Imprisonment o o Harshest penalty; full-time imprisonment; Crimes (Sentencing Procedure) Act 1999 Are very costly and not economically viable The NSW Bureau of Crime Statistics and Research undertook a study of 2,793 parolees in the 2001/02 financial year. Their findings, released in January 2006 reveal that within two years of release 67% of parolees had reappeared in court, 64% were convicted and 41% were back in prison.

Post- Sentencing Considerations

Security Classifications o o NSW prisons are classified in accordance to security and prisoners are placed in accordance to severity of crimes Maximum Security (Goulburn), Medium Security (Parklea) and Minimum Security (Emu Plains)

Protective Custody o o Protection of prisoners who are vulnerable to attack e.g. child sex offenders They are segregated from other prisoners

Parole o Aim is to encourage rehabilitation for prisoners who dont pose a threat to society

Preventative detention o o o Imposed in order to prevent a person from committing a crime Controversial as it violates right to freedom Imposed more seriously under Terrorism (Police Powers) Act 2002 NSW

Continued Detention o o Continued detention of an offender upon release Controversial as it violates the rights of the offender

Sexual offenders registration o o Names of serious sex offenders are recorded by police to aid government in keeping a track of an recidivists Child Protection (Offenders Registration) Act 2000 NSW established NSW Child Protection Register to aid in the monitoring of child sex offenders

Deportation o According to Migration Act 1958 Cth, if a person receives a custodial sentence for more than 12 months, and have been a resident in Australia for less than 10 years; then he/she is deported from Australia.

5. Young Offenders
Age of Criminal Responsibility
Under the Childrens (Criminal Proceedings) Act 1987 NSW, the age of criminal responsibility is 10 years R v LMW 1999 age of criminal responsibility is withheld Common law presumes doli incapax is between 10-14 years; forces additional burden upon prosecution

The Rights of Children when Questioned or Arrested

If arrested, the childs parents or guardians must be contacted Have same rights as adults e.g. right to silence etc. Cannot be questioned by police for more than 2 hours at a time

Childrens Court Procedures and Operation

-

The court only hears proceedings for offenders under 18 years or for those who are still under 21 years and where less than 18 years old when charged Is a closed court and proceedings aim to be less formal Presided over by a Magistrate; there is no jury Rehabilitation is the primary purpose of sentencing The names of children and young people appearing in the Childrens Court are not published; it is an offence for media outlets to do so. Under very special circumstances the court may grant permission for names to be published.

Penalties for Children

Magistrates will often request that Juvenile Justice prepare a background report on the child or young person to assist them in the sentencing process. If a plea of guilty is entered or the young person is found guilty of a crime, the following penalties may be imposed, depending on the factual circumstances of the crime and of the young person in terms of a their lack of a previous record: o o o o o o A caution may be issued The offender may be referred to a Youth Justice Conference Depending on the offenders ability to pay they may be fined to a maximum of $1000 Community Service may be ordered; up to 100 hours for offenders under 16 years and up to 250 hours for those older than 16 The may be placed on a good behaviour bond They may be placed on a control order to be served in a Juvenile Detention facility for a maximum of two years for one offence and three years in total, if more than one offence is involved.

Alternatives to Court
The provisions of the Young Offenders Act 1997 (NSW) clearly reflect the spirit of the United Nations Conventions on the Rights of the Child (CROC) to which Australia became a signatory in 1990. Article 40(3)(b) of CROC states that 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.

6. International Crime
Categories of International Crime
Crimes against the international community: these are crimes, so recognised because of their heinous nature, by the majority of countries in the world and are ratified by numerous conventions and treaties e.g. genocide. Transnational Crimes: these are crimes which involve breaking the law in more than one country. These crimes cross national borders, e.g. drug trafficking, people smuggling.

Dealing with International Crime

Domestic and international measures and limitations International crime presents particular problems. Ease of travel between nation states and technological developments have made it increasingly difficult for such crimes to be investigated. Further, enforcement is an issue, due to the notion of state sovereignty which limits the jurisdiction of a domestic countrys laws and legal system. Attempts to tackle these issues include the Federal governments child sex tourism legislation Crimes (Child Sex Tourism) Amendment Act 1914 CTH which gives jurisdiction to Australian courts to prosecute offenders who commit child sex offences overseas. Important measures for dealing with international crime include: extradition, INTERPOL and mutual assistance. Extradition plays an important role in the context of international crime. It is the process of returning to a jurisdiction a person who has either been convicted of a crime in that jurisdiction or accused of committing a crime, and has subsequently left the jurisdiction. In Australia, extradition of offenders occurs between states and also between Australia and other nation states. The relevant act is the Extradition Act 1988 Commonwealth. To extradite an offender from overseas, Australia must have an extradition agreement with the nation state where the offender currently resides. Extraditable offences must be punishable under the laws of both nation states and must be regarded as serious offences by both nations and carrying a term of imprisonment. The prosecution in making the extradition application in the foreign court must be able to establish in application a prima-facie case against the accused and that the accused will receive a fair trial. Extradition agreements can be bi- or multi-lateral in nature. Recent examples of persons who have been extradited to Australia to stand trial include the 2006 extradition of Gordon Wood to stand trial for the 1995 murder of Caroline Byrne and the Queensland governments extradition of Dr Patel (nicknamed Doctor Death) in relation to manslaughter charges arising from his alleged malpractice while a surgeon at Bundaberg Hospital. INTERPOL (International Criminal Police Organization) is the worlds largest policing organisation, with 188 member nations. It aims to facilitate co-operation in law enforcement between member nations with the aim of deterring and combating international crime. Mutual assistance is the term used to describe the request by one government to another for assistance with regard to criminal investigations and prosecutions. Such requests can only be made by the Australian government and are done so at the request of a law enforcement agency like the Federal Police. This process allows nations to obtain assistance with such matters as executing warrants in a foreign country or obtaining testimony from a witness who may reside in a foreign jurisdiction.

The ability of international law to prosecute individuals, as compared to nation states, for breaches of international law, is a relatively recent development. Since the Nuremberg Tribunal on War Crimes (1946), which was established to prosecute Nazi war criminals, there have been various ad hoc tribunals established to hear crimes arising out of specific wars and conflicts, e.g. 1994 International Criminal Tribunal for Rwanda (ICTR) established by the United Nations to deal with the genocide crimes in Rwanda. This court was established in Arusha, Tanzania and in 2006 became the African Court on Human Rights and Peoples Rights. International Criminal Court (ICC): The ICC was established by the Treaty of Rome (1998) and commenced operation in 2002. It issued its first arrest warrants against Ugandan Warlords for crimes against humanity and war crimes in 2005. The significance of the ICC is that it is a permanent international criminal court dealing with individuals who perpetrate international crimes, e.g. war crimes, genocide, crimes against humanity, acts of aggression. It can impose penalties ranging from fines to life imprisonment. Not all nations have become signatories to the Treaty of Rome nor do they consent to the jurisdiction of the ICC, most notably the United States. Accordingly, as it does not have universal jurisdiction and cannot compel extradition, the ICC must rely on the support of signatory nations to ensure that persons indicted to stand trial do indeed appear before it. This can prove problematic as can be seen in the ICCs current indictment of Omar Al Bashir (President of Sudan) for alleged war crimes arising out of his involvement in the conflict in the Darfur region of Sudan. The ICC cannot force Omar Al Bashir to appear before it. However, notwithstanding such problems, the establishment of the ICC is still a giant leap forward in terms of the international communitys commitment to addressing the growing number of cases involving gross human rights violations. The developing notion of individual responsibility under international criminal law is a positive development.

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