Crime Flashcards
Criminal Investigation Process - Strip Searches
The unwarranted use of search and seizure powers by the NSW Police Force constitutes a blatant breach of an individual’s right to privacy and bodily autonomy, and thus presents an ineffective representation of society’s moral and ethical standards. In 2018, the Law Enforcement Conduct Commission commenced an ‘Inquiry into NSW Police Force strip search practices’, to address the widespread public outcry and media attention regarding the unjust strip searching of minors at music festivals. The investigation found recurring issues of non- compliance with the satisfaction of legal criteria needed to justify the use of such auxiliary powers, as outlined under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Systemic concerns involving the considerable discrepancies between over 100 different standard operating procedures (SOPs) of the NSW Police Force additionally demonstrated an inconsistent application of relevant legislation, and a consequent failure to uphold society’s expectations of fairness within the criminal investigation process. Although several recommendations, such as the introduction of a new Person Search Manual, have already been implemented to better represent community disapproval for unnecessary incursions into the dignities of a person, the recent use of search targets greatly reduced the extent to which society’s moral and ethical standards were reflected. However, after an inefficient allocation of resources saw over 26,300 searches conducted on children in 2018, of which 90% located nothing, the pre- emptive policy was soon abolished in 2022. As discussed in the article, “NSW Police scrap controversial targets after quota rise during pandemic” (The SMH - 2022), doing so reflected society’s ethical and moral demands for a greater protection of vulnerable people against unjustified investigations and the resulting psychological harm. The arbitrary use of search and seizure powers without reasonable suspicion therefore misconstrues society’s need for effective law enforcement, as it undermines the rights of the individual.
Convention on the Rights of the Child
Criminal Investigation Process- Excessive force in arrest
The unreasonable use of force in arrest continues to prevail as a pressing issue for public concern, as it fails to reflect society’s moral and ethical standards regarding the treatment of the offender. Although sections 230 and 231 of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) authorise police to use reasonable force in performing an arrest, the discretion involved in its implementation has in some cases resulted in excessively forceful displays of power. The public outrage toward repeated and unnecessary tasering used by officers in the case of Police v Phillip Charles Bugmy [2011] NSW, demonstrated a strong disconnection between societal moral standards and the existing applications of the law. This served as the impetus for a highly critical report by the NSW Ombudsman in 2012, which found that in 30% of reviewed incidents, the arrested person’s behaviour was passive and co-operative, and thereby constituted an unwarranted use of force that contradicts societal regard for the rights of the individual. Though they perform an essential function in helping to deter and resolve violent incidents within the criminal investigation process, the Ombudsman found the “Taser SOPs are not sufficiently clear or precise, and some terms are being interpreted too widely.” To better reflect community demands for the SOPs to mitigate the unjust risks of police discretion, procedures now specifically address the LEPRA mandates and requirements for use of force. Such improvements in the accountability of police powers has helped to achieve a greater adherence to society’s moral and ethical standards, while maintaining the use of force that is necessary for police to effectively investigate criminals. The UN Human Rights Committee however, asserted that this is only valid “where greater or lethal force would otherwise have been justified”. Therefore, the continued use of tasers to subdue mentally ill and intoxicated offenders holds potentially fatal consequences that conflict with the wider morals and ethics of society, thus resulting in their misrepresentation within the criminal investigation process.
Bail and Remand
Contentious bail and remand laws constantly undermine the presumption of innocence, thereby violating the Rule of Law and further diminishing the ethicality of the criminal investigation process
Although bail and remand laws attempt to reflect society’s moral and ethical standards, inherent difficulties in maintaining the presumption of innocence, while simultaneously protecting the safety of the community, only allows so to be done to a moderate extent. Following the 2012 Law Reform Commission Review of the old Bail Act 1978 (NSW), several key issues regarding its complexities prompted the introduction of Bail Act 2013 (NSW), which removed the presumption against bail and consequently remedied societal concerns regarding the large number of people detained on remand. The controversial bail decisions of R v Fesus (2014) NSW and R v Hawi (2014) NSW however, shifted society’s moral and ethical standards in favour of the safety of the community and against the accused, and thus gave rise to the punitive bail policies under the Bail Amendment Act 2014 (NSW). The enacted changes raised significant rule of law concerns, with the show cause test placing the burden of proof on the accused rather than the prosecution, thereby undermining the presumption of innocence. The article, “Children refused bail and held in prison for months, then found not guilty” (SMH - 2019), found the number of people refused bail and later declared innocent has increased by 30% since 2014, with the 21 children found not guilty in 2018 waiting for an average of 124 days in remand. Not only does this indicate a failure to protect youth and vulnerable groups from somewhat arbitrary imprisonment, but additionally disregards the long- term interests of society, as the risk of reoffending after incarceration dramatically increases. Moral and ethical standards are further compromised by the overcrowded and dangerous circumstances children are subjected to in remand, described by the Child Abuse Prevention Services as “unimaginable”. The contentious issues surrounding bail and remand laws ultimately render them unable to adequately reflect society’s moral and ethical standards, though continued legislative efforts seek to improve this.
International Covenant on Civil and Political Rights 1966.
Man Monis in the Lindt Cafe Siege
Criminal Trial Process- Pleas and charge negotiation
Charge negotiations balance two public interests, criminal conduct is adequately punished, which increases resource efficiency.
Between DPP and Prosecution to negotiate a lesser charge, thus lesser sentence. DPP utilises discretion in considering effects on victim, relieves stress from having to testify and relive traumatic experiences.
Former DPP, Nicholas Cowdery said “without charge negotiation, CJS would not function… and justice would not be achievable.”
Case of Ivan Milutinovic: charged with assault occassioning actually bodily harm, and intent to murder. Charges were reduced so they would be dealt with in the Local Court. Article: Top judge outraged by plea bargain deals (SMH), Supreme Court Justice Hulme said the practice was a “disgrace”.
Incentive for an offender to give an early guilty plea is provided under the Crimes (sentencing Procedure) Act 1999 (NSW), but was recently amended by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2018 (NSW), which offered in incentives such as a 25% reduction on the imprisonment sentence, and aims to reduce backlogs of trials in the District Court. Statistic: BOSCAR found the number of average number of days from committal to case finalisation decreased by around 27 days.
The 2018 Report by the Australian Institute of Criminology titled ‘Plea Negotiations’, found although overcharging may occur, helps the offender to feel more accountable and increases chances of rehabilitation.
Arguments for and against: decreases costs and time delays (resource efficient), conviction on a lesser change is better than no conviction, crimes may be insufficiently punished, an accused may plead guilty to a crime of which they are innocent.
Criminal Trial Process- Defences
Involves the mens rea and assists the court in achieving justice as the court can appreciate the circumstances that gave way to the crime. This promotes the achievement of justice, as the conviction will have heard the defence’ excuse or reason.
Partial defence: Provocation. The other person did something that made the accused lose control of their actions. It implies the victim is to be blamed. It has been abolished in Victoria and Tasmania, but still exists in NSW. Provation can have a murder charge reduced to manslaughter. In R v Camplin (1978), a boy argued provacation and won for killing his uncle who sexually assaulted him.
Case: R v Singh (2012), man who killed his wife based on the suspicion of infidelity. He was found guilty of manslaughter rather than murder after jury accepted claim that he was provoked. Sparked public outrage.
Crimes Amendment (Provocation) Act 2014 (NSW), was designed to significantly reduce the number of cases under which provocation could be argued, but still be considered in sentencing for murder.
Article: ‘Jealous man provocation’: the fresh Australian bid to end legal defence used by men who kill their partners. (Guardian - 2021) The article details that in her 2017 research, Dr Kate Fitz- Gibbon of Monash University found in the decade before the reforms were introduced, there were 20 convictions finalised in the NSW supreme court for manslaughter by reason of provocation, and majority involved intimate partner suicide. She found the NSW reforms would eliminate many of these scenarios she called “jealous man provocation”.
Extreme provocation -> law reform to protect domestic violence victims (battered spouse syndrome)
Criminal trial process- Juries
Juries reflect the right to a fair trial. Right to a fair trial is a human right (ICCPR 1966 and UDHR 1948). It is also recognised in Australia through common law (Dietrich v Queen 1992).
Section 80 of the Australian Constitution guarantees also persons a jury trial for indictable offences.
Nicolas Cowdery said “juries perform a valuable role in connecting the community with criminal justice and bringing into the process the community’s values and standards”.
Reflects historic right to be judged impartially by group of peers
Allows for greater transparency to the judicial system and fairness as it safeguards against abuse of power.
ALRC 2010 ‘A targeted inquiry into the operation of the jury system’.
The Jury Amendment (Verdicts) Act 2006 (NSW) amended the Jury Act 1997 (NSW) to allow majority verdicts (11/12) in cases where reasonable time for deliberation has passed and a unanimous verdict has not been reached. Although this removes the power of unreasonable jurors, and saves time, it removes the possibility of a ‘reasonable doubt’ decision.
Case of R v Lane (2010), where the Jury returned a majority verdict for the charge of murder. In respect of the majority conviction, the Judge imposed a lesser sentence. Successfully reduce rate of hung jurors and thus resource inefficiency.
Case of George Pell -> High Court has reinforced the notion that despite jury having primary responsibility on determining guilt or innicence, responsibility can be subject to higher order through appeal.
Sentencing and Punishment- Mandatory Sentencing
Statutory guideline: The Crimes (Sentencing Procedure) Act 1999 (NSW) sets out the purpose of sentencing, and the types of penalties that can be imposed.
Section 3A states the allowable purpose of punishments, “making the offender accountable, denouncing their conduct, and promoting rehabilitation.”
Judicial discretion is the power of the magistrate or judge to decide the most appropriate sentence, taking into account aggravating or mitigating circumstances. They may be set by cases with similar precedents. Judicial guidelines are set by the NSW Court of Criminal Appeal to assist judges when applying discretion.
In the case R v. Jurisic (1998), Chief Justice Spielegman said there was a need for a system of guidelines. They were to ‘structure discretion’. The Supreme Court of NSW first published sentencing guidelines in this case.
Rationales for mandatory sentencing include ensuring adequate retribution, consistency, effective deterrence, denunciates the criminal conduct, and incapacitation.
Undermines the rule of law.
The Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW), amended the Crimes Act 1900 to introduce a mandatory minimum sentence of 8 years for the offence of Assault Causing Death. The Act also amended the Crimes (Sentencing Procedure) Act 1999 (NSW), to no longer make alcohol a mitigating factor.
A 2017 release by the ALRC on the Inquiry into The Incarceration Rates of Aboriginal and Torres Strait Islander Peoples, found mandatory sentencing disproportionately affected Indigenous Australians. They also found it violates provisions under the ICCPR (1966), including the prohibition on arbitrary detention in article 6.
The North Australian Aboriginal Justice Agency found that under the 1997 mandatory sentencing scheme in the NT, indegenous adults were approximately 8.6 times as likely than non- aboriginal adults.
Article: ‘Instruments of injustice’: Victoria’s highest court denounces state’s mandatory sentencing. (Guardian 2022). Justice Maxwell and Justice Forrest said the “oppressive sentencing regime is contrary to the public interest and incompatible with modern sentencing jurisprudence.
The UN Commitee Against Torture recommended that Australia abolish mandatory sentencing.
It also increases costs on the courts.
R v. Garth (2017) one punch offence
Sentencing and Punishment- Diversionary Program Drug Court
Acknowledges the role of drug use as a factor affecting criminal behaviour. Offers offenders an opportunity to rehabilitate and avoid becoming entrenched in the prison system.
Established by the Drug Court Act 1998 (NSW), offers three phase treatment program, with consistent compliance resulting in completion.
Drug Court judge, Roger Diver said “diversionary program is a combining of the health system and the justice system, allowing long term change for reoffenders.”
Article: ‘Not enough to be tough on crime’: Pioneering NSW Drug Court expands to tackle regional ice epidemic. (SMH - 2021). Following high rates of success, the Government will expand the Drug Court in the Dubbo area. This will increase the number of drug courts from just 3, which reduced accessibility and effectiveness.
The 2020 report by BOSCAR, ‘The long term effect of the NSW Drug Court on Recidivism’, found reoffending rates were 17% lower to similar offenders outside the program.
Section 5 of the Drug Court Act renders it exclusive of indictable offenders such as violent and sex offenders.
Sentencing and Punishment - Restorative justice and circle sentencing
Alternative sentencing method for Aboriginal offenders in 12 NSW Local Courts.
Acknowledge Aboriginal lore, making the oath for rehabilitation of the offender and justice for the victim
Involves the victim, offender, elders from community, and a magistrate -> rights of victim and offender are honoured. Holistic approach.
Implemented by the Criminal Procedure Amendment (Circle Sentencing Intervention Program) Regulation 2003 (NSW).
2020 research from BOSCAR found offenders participating in Circle Sentencing are 3.9 percentage points less likely to reoffend within 12 months, and they take 55 days longer to reoffend if and when they do.
Article: Calls to expand Indigenous circle sentencing after success in Walgett and Dubbo. (ABC - 2020). BOSCAR study found offenders were half as likely to receive a prison sentence, saving the $2.8 million taxpayer dollars a year. The article outlines how stakeholders including the Aboriginal Legal service have called for circle sentencing to be offered in more places.
Although the Australian government has not yet formally adopted the UN Declaration on the Rights of Indigneous Peoples (2007), this helps to achieve justice.
FIND CASE FOR THIS AND MORE EFFECTIVENESS??
Sentencing and Punishment - Post sentencing considerations
New South Wales has a post-sentencing scheme under the Crimes (High Risk Offenders) Act 2006 (NSW) that allows for the ongoing detention of high risk offenders who are serving a sentence for a serious sexual or violence related offence.
The Attorney- General can apply to the Supreme Court for a continuing detention order (CDO) for the offender if satisfied ‘to a high degree of probability’ that the offender is most likely to reoffend if released.
Through the Crimes (High Risk Offenders) Amendment Act 2017 (NSW), changes have been made to strengthen CDOs to better protect the community from high-risk sex and violent offenders who pose an unacceptable risk to the community at the end of their sentence.
The Australian National Child Offenders Register (ANCOR) and the New South Wales Child Protection Register are web-based systems designed to assist police with the registering and case management of those who have committed sexual offences against children.
Established under the Child Protection (Offenders Registration) Act 2000 (NSW), a person convicted of specified violent or sexual offences against a child must register at the local police station. Protect the community. Contentious because they deny the offender to move on in the rehabilitation process. The ongoing risk of reoffending outweighs the burden imposed on the offender.
Young Offenders - Childrens Court
Specialised court established under the Children’s Court Act 1987 (NSW). Specialised magistrate and no jury (summarily). Closed courts. The Children’s Court Clinic can make clinical assessments on the child’s psychological state and history.
The Young Offenders Act 1997 (NSW) provides a three- tiered diversionary approach. It aims to encourage rehabilitation, reduce rates of recidivism, and reduce the burden on the court system. It only applies to summary offences.
BOCSAR 2013 Report: The Impact of the NSW Young Offenders Act (1997) on the Likelihood of a Custodial Order, found risk for receiving a custodial order fell for indigenous young offenders by 17.5%.
In 2019, the Committee on the Rights of the Child urged the Australian Government to actively promote non- judicial measures.
The case of R v GDP (1991), where a boy’s damages were disciplined with an excessive fine, with was then reversed to a 12- month probation order. It outlines the effectiveness of the legal system is ensuring rehabilitation prospects of young offenders are considered.
Exceptions to the rehabilitative focus is when the young person exhibits grave adult behaviour.
A 2012 BOCSAR report found the average cost of a Youth Justice Centre was estimated to be about 18% less than the average matter dealt with in the Children’s Court.
The ALRC’s Seen and Heard Report 1997 emphasises the need for courts to recognise family circumstances as seen in R v SRK (2013), who received consultation to family counselling due to the “exceptional family circumstances.
Youth Justice Conferences are under the Youth Offenders Act 1997 (NSW).
Young Offenders- Age of criminal responsibility
The UN Convention on the Rights of the Child (1989) encouraged a minimum age below which children should be presumed to not have the capacity to infringe the penal law.
The Children (Criminal Proceedings) Act 1987 (NSW) asserts that for children under 10 years old, doli incapax is a conclusive presumption. They can not be found by law to have committed an offence, and this can not be rebutted.
The rebuttable presumption of doli incapax applies to children 10- 13 years old. Children might not have the mental capacity or mens rea to understand the seriousness of their act, but it is up to the prosecution to prove it beyond reasonable doubt.
Children under the age of 18 are subject to the Children’s (Criminal Proceedings) Act 1987 (NSW), which include protections such as prohibiting reporting of the child’s name.
The case of R v LMW (1999) shows when heinous crimes committed by children happen, the application of doli incapax is publicly scrutinised. 10 year old boy charged with manslaughter (youngest ever), also youngest ever to face the NSW Supreme Court. He was acquitted from the murder charge as the courts felt he was too young to be held criminally liable.
A report in the Murdoch University Law Journal, ‘Doli incapax: Why Children Deserve its Protection’ (2003), states doli incapax can be unfair to the victim of the crime. But he goes on to defend it as well, saying people mature at different rates.
In 2019, the Committee on the Rights of the Child recommended all countries increase the minimum age of criminal responsibility to at least 14 years of age.
Article: Lift age of criminal responsibility: AMA. (SBS - 2019). The Australian Medical Association is pushing for the age of criminal responsibility to be lifted to 14 years. This would better account for the cognitive development of adolescents.
In NSW, the Children (Criminal Proceedings) Amendment (Age of Criminal Responsibility) Bill 2021 has been introduced to raise the age of criminal responsibility in NSW to 14. It has not yet progressed.
Young offenders- rights when questioned or arrested
Section 8 of the Children (Criminal Proceedings) Act 1987 (NSW) also creates a presumption that children should not be arrested or detained, unless, for example, the offence was a serious or violent one, or there is a danger of further offences or violent behaviour.
In 2018, the Law Enforcement Conduct Commission commenced an ‘Inquiry into NSW Police Force strip search practices’, to address the widespread public outcry and media attention regarding the unjust strip searching of minors at music festivals. The investigation found recurring issues of non- compliance with the satisfaction of legal criteria needed to justify the use of such auxiliary powers, as outlined under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). However, after an inefficient allocation of resources saw over 26,300 searches conducted on children in 2018, of which 90% located nothing, the pre- emptive policy was soon abolished in 2022.
The Seen and Heard: Young People and the Legal Process (1997) by the ALRC recommended that the guardians be notified as soon as possible after arrest. Interrogation proceedings were further acknowledged in R v Cortez (2002), that set a precedent that the custody manager’s duty includes informing a young person that the Legal Aid Hotline is available and giving them an opportunity to ring.
Young offenders - bail and remand
Children’s Rights Report 2019 by Australian Human Rights Commission: 56% of all children in detention were Aboriginal or Torres Strait Islander. In 2018, 60% of young people in detention were unsentenced. Significant numbers of unsentenced children in detentions shows Australia is not effectively implementing article 37 of CROC , which states arrest and imprisonment should only occur as a last resort.
Punitive bail policies under the Bail Amendment Act 2014 (NSW). The enacted changes raised significant rule of law concerns, with the show cause test placing the burden of proof on the accused rather than the prosecution, thereby undermining the presumption of innocence.
The article, “Children refused bail and held in prison for months, then found not guilty” (SMH - 2019), found the number of people refused bail and later declared innocent has increased by 30% since 2014, with the 21 children found not guilty in 2018 waiting for an average of 124 days in remand. Not only does this indicate a failure to protect youth and vulnerable groups from somewhat arbitrary imprisonment, but additionally disregards the long- term interests of society, as the risk of reoffending after incarceration dramatically increases.
Moral and ethical standards are further compromised by the overcrowded and dangerous circumstances children are subjected to in remand, described by the Child Abuse Prevention Services as “unimaginable”.
ICCPR
Article: Australia’s youth detention centres failing vulnerable children National Children’s Commissioner says (ABC - 2022). BackTrack Program had a 90% success rate of getting kids back into full time education or employment, but those hardest to help had spent time in youth detention.
Young offenders - non- legal measures
New Street Services: A therapeutic service delivered by NSW Health that is designed to assist young people to understand, acknowledge, and cease harmful behaviour. It involves working with the whole family unit and engages with other agencies and community services.
Youth on Track: A NSW Department of Communities and Justice early intervention scheme for 10- 17 year olds. It responds to young people at risk of long term involvement in the criminal justice system. One on one case management.
Maranguka Justice Reinvestment project in Bourke: an Aboriginal led place- based model of justice reinvestment through a collaboration between Maranguka, Bourke Tribal Council and Just Reinvest NSW.
