Crime

Question 1

Police Powers - Curti (2012)

Answer 1

• Tasered 14 times (excessive use of force)
• 3 cans capsicum spray
• Alleged robbery (whilst on LSD)
• LEPRA S231 (reasonable force)
  (right to life, freedom from torture)
• Coroners Inquest - force not “reasonable” - recommended
• changes to police code of conduct training and oversight committee of PIC
• Police Integrity Commission (police investigating police) now overseen by LECC (law reform) & new training on tasers
• “Police used ‘excessive, unnecessary, unlawful’ force on Brazilian student Roberto Curti, court hears” (SMH, 2014)
• Taser death: Student was ‘no threat’ (Sydney Morning Herald 2012)
• Guardian May 2023, “Claire Nowland: NSW police’s decision to taser 95-year old woman leaves community ‘gobsmacked’” (INEFFECTIVENESS OF CURTI REFORMS)

Question 2

Police Powers - Strip Searches

Answer 2

• S 31 and s33 LEPRA
• ABC News 2016 Article, “16 year old girl unlawfully strip searched at Byron Bay Music Festival”
• LECC - investigation led to reforms during the inquiry (LECC REPORT)
• NSW Ombudsman found (as part of LECC investigation )- Drug Detection Dogs - only found accurate 26% of all Indications.
• LECC stated - a drug detection dog indication alone is not sufficient to form reasonable suspicion
• Around 20% more likely to be strip searched if you are indigenous
• Redfern Legal Centre has released a new report (2024) that reveals over a thousand child (aged 10-17 years) have been strip searched by NSW police within a seven year period from June 2016 to July 2023
• Police strip searched 1546 children in seven years
• “State sanctioned sexual assault”
  The youngest child subject to strip searches by NSW Police in 2020 was 10 years old
• In 2023, the youngest children to be strip seached were 12 year olds (4 girls and 1 boy)
• 46.17% of strip searches occured in public for children
• Almost 45% of children being strip searched were Indigneous despite only being 6% of the population
• Most recent statistics for the 2022/23 financial year show an increase of over 50% in strip searches of girls
• Conversation 2024, “NSW police have strip searched the equivalent of 51 classes of school children”
• Class action trial waiting to be heard in Supreme Court by Slater and Gordon Lawyers as well as the Redfern Legal Centre

Question 3

Police Powers - Move on Powers

Answer 3

• Sydney Public Reserves (Public Safety) Act 2017 No 35 the NSW government passed laws granting police sweeping new powers to move on people occupying designated public reserves
• The Sydney Public Reserves (Public Saety) Act 2017 (NSW) (‘Martin Place Act’) was introduced as a response to the ‘tent city’ in Martin Place during 2017. It confers much broader powers to police in relation to giving people directions in the Martin Place Reserve area. Under sec.7(1), a police officer may give a direction to a person who is in the area defined as the Martin Placw reserve if the police officer believes on reasonable grounds that the person;s occupation of the reserve
• Section 197 of LEPRA –> sweeping powers
• Government says the laws are necessary to protect community safety e.g common use of open flames and obstructed walkways
  Redfern Legal Centre noting they are, “concerned about the disproportionate impact the new laws will have on people experiencing homelessness”
  Australian Lawyers for Human Rights - ‘Human Rights lawyers horrified at legislation penalising homelessness in public areas’ August 10th 2017 - states that “the bill is an outrageous attempt by the NSW Government to penalise the unfortunate and deny them the basic human right for being treated with dignity.”
• Section 22 of the Charter of Rights - To be treated with dignity
• Article 10 ICCPR - All persons shall be treated with humanity and dignity
• Undermines the community trust in police if there is inconsistent application (use of discretion) of the provision. 40% of such orders penalise youth, homeless, mentally ill and Indigenous Australians. (SMH “New police ‘drunk and disorderly’ powers penalise Aboriginal youth, homeless, and mentally ill” 2014.)
• Article 11 ICESR - Everyone has the right to an adequate standard of living

Question 4

Bail and Remand - Section 30A

Answer 4

• R V Baluch (2022)
• Granted strict conditional bail after the charges were initially laid, but police allege he cut off an ankle bracelet tracking device before triggering a 6 day man-hunt
• Eventually caught hiding in the back of a Mercedes that was parked in a shipping container on the back of a truck located at the NSW-Queensland border
• Section 30A of the Bail Act
• Electronic monitoring as a bail condition
• Improves quality of electronic monitoring when on bail → community safety
• Once show cause is achieved (sec. 16) → unacceptable risk (sec 19) → conditions of bail
• No laws can ensure the possibility of an accused removing or interfering with the device, but minimum standards will ensure appropriate delivery of the service, notification and prompt response from providers in the event of interference

Question 5

Defences - Hannah Quinn

Answer 5

9 News 2021 “Hannah Quinn handed two year community corrections order”
- Helped hide her boyfriend after he killed an intruder with a samurai sword
- Given a two year good behaviour bond
- Quinn and her partner told police they acted in self-defence
Judge, “she could have never anticipated this coming”
- After fleeing - “she stuck with her boyfriend at that time out of loyalty and nothing about this suggests she had a plan to indefinitely go on the run”
- Boyfriend is eligible for parole in August 2023
- Complete Defence- S418 Crimes Act 1900
- Partial Defence- s421 Crimes Act 1900

Question 6

Role of Juries - Gittany 2014

Answer 6

• JUDGE alone - the level of media coverage and publicity surrounding the circumstances of the case made the likelihood of a fair trial by a jury extremely low
• May apply under section 132 of the Crimes Act 1900 (NSW)
• sentenced to 26 years in jail, with a non-parole period of 18 years, for the murder of his fiancée Lisa Harnum.
  threw Ms Harnum to her death from the balcony in 2011
• During sentencing, Justice McCallum described the cruelty of the crime. (ratio decidendi)
• CASE FOR JUDGE ALONE - feature of the adversarial system in reflection of the rule of law to uphold the rights of the offender
• In an era of transparency, does it still make sense to have court verdicts decided by lay people whose reasoning we will never know? (ABC News, “The case for judge alone trials” , 2013)

Question 7

R v Lazarus (2015-17)

Answer 7

• Lazarus was tried in early 2015, and convicted by a jury of one count of sexual intercourse without consent, contrary to section 61i of the Crimes Act 1900. Sentences to 5 years (served 11 months)
• 2017 appealed decision is a trial without a jury using the same evidence without a jury using the same the judge concluded Lazarus had reasonable grounds for consent
  Judge alone trials due to media interest
• May apply under section 132 of the Crimes Act 1900 (NSW)
• Shifts burden of proof from the prosecution to defence
  No third trial after DDP appeal acquittal at NSWCCA as “it would give rise ot oppression and unfairness”
• I AM THAT GIRL - Australian Story 2018
• June 2022 - Crime Legislation Amednment (Sexual Consent Reforms) Act 2021
• Introduced Jury direction reforms, affrimative consent model, stealthing charge

Question 8

Fara Jama (2009)

Answer 8

• In 2005, a 48 year old Victorian woman was found unconscious in a nightclub, police suspected she must have been drugged/sexually assaulted in some manner
• Victim was examined by Sexual Assault Crisis Care unit within a hospital for a physical examination and swabs were sent to Victoria Police Forensic Science Laboratory for DNA analysis - results matched Fara Jama, who was arrested and prosecuted simply by DNA match (Evidence Act 1995)
• In 2009, solicitor Kimani Boden took on Jama’s case pro-bono and asked prosecutors to review DNA evidence - once evidence reviewed by forensic team there was REASONABLE DOUBT
• ISSUES with technology
• Issues with frenzy surrounding CSI effect, weighs on jurors impartiality

Question 9

Bail and Remand - Section 22B

Answer 9

• ABC News 2022, “NSW Attorney General asks DDP to review convicted paedophile Neil Duncan’s bail after alleged breaches” –> reforms
• Create a presumption not to grant bail if accused pleads guilty and full time jail will be ordered
• This potentially impacts the Early Appropriate Guilty Plea (EAGP) as people will be less inclined to submit an early guilty plea and await sentencing to avoid time in prison
• Potentially removes the opportunity for intensive correction orders (ICO) with the judicial presumption they will receive a full sentence
• President of the Law Society of NSW, Joanne Van Der Plaat, says she is “very concerned” about “the potential for this reform to increase the remand population, affecting many offenders who may face jail but are the serious offenders such this reform intends to capture”
• “Fairness is supposed to be the cornerstone of the legal system, but here we have the Government pushing knee-jerk one size fits all approach that will result in the imprisonment of those it is not intended for” - CEO of Aboriginal Legal Services, Kelly Warner (95% bail refusals for Indigenous in 2024)
• Application in R v Day (2022) and R v Hayne (2022)

Question 10

Youth Koori Court

Answer 10

• The Youth Koori Court (YKC) established in Parramatta in 2015, behaves as a non-legislated entity of the Children’s Court
• Facilitated under Section 3D of the Crimes (Sentencing Procedures) Act 1999
• Effective example of integrating customary law into Australian law by responding to the need for culture and connection with First Nations youth whilst also protecting individual and collective rights.
• Aim to create an environment that will increase First Nations’ confidence in the justice system and thereby encourage compliance by having Aboriginal elders present at the court hearing and assisting the young people to understand their cultural and kinship obligations.
• 2023 BOCSAR data, children sentenced through the court are 5.9% less likely to reoffend which is significant given the overrepresentation of Indigenous peoples in the judicial system; 40% according to the Australian Human Rights commission in 2024.
• Article 21 of the UN Rights of Indigenous, which describes that first states must take measures to address the social and economic factors affecting the criminal behaviour of Indigenous
• Guaranteed 12 months of support for the offender.
• Court process is voluntary and the offender must agree to the process, thereby inhibiting compliance to those who participate.
• Similarly, the jurisdiction of the court is limited to those within geographical reach, limiting accessibility.
• Case: R v Thomas (2023) NSWChC3
  Mild intellectual disability, mild offences (setting fire to train carriage etc, no direct style of violence)
• Outcome – connected with culture; Men’s Shed – spoke on his behalf.
• had ONE offence during the YKC process and this was dealt with through a mental health diversionary program.
• Therapeutic response rather than punitive response.

Question 11

Drug Court

Answer 11

• The Drug Court of NSW is a program that seeks to manage and enforce the rehabilitation of offenders within the community whereby the criminal justice system and health care system come together within the parameters of ordinary laws and sentencing.
• When undertaking Drug Court, sentences are suspended (generally for people receiving a sentence from 6 months - 5 years) and if the program is completed successfully, this is considered a mitigating factor in sentencing.
• Solution focussed justice program
• This is significant given 70% of prisoners identify drugs and alcohol as the reasons they offended and 50% of home burglars in NSW acknowledge a serious drug problem (Alcohol and Drug Institute, 2024).
• Annual conference in 2023 revealing that individuals are 17% less likely to reoffend in any offence and 38% less likely for drug offences, thereby meeting society’s values of less recidivism. This is clearly significant given the traditional NSW justice system having a 46% reoffense rate (National Institutes of Health, 2023). - - Accessibility to 270 participants at a time and strict selection criteria renders a violation to the rule of law, as not everyone will receive equal punishment within the NSW criminal justice system.
• Sarting in areas such as Woollahra which according to the NSW Bureau of Statistics has had a 68.5% decrease in drug related offences in the last 24 months, begging the question as to why the court has not expanded to areas with higher concentrations of drug related offences such as Walgett Plains with 1468 drug related offences reported in 2021 (ABC News, 2022) compared to a population of 2145 people. Notwithstanding, the Drug Court has been profoundly effective in implementing both situational and social crime prevention strategies and thereby encouraging long-term compliance.

Question 12

Purposes of Punishment - General Detterence (Beveridge)

Answer 12

• R V Beveridge (deterrence)
• Beveridge’s early appropriate guilty plea resulted in all of his charges being dropped, and instead a CSO in order to set an example for the effectiveness of the EAGP
• Section 3B of the Crimes (Sentencing and Procedures) Act 1999 –> general detterence
• Proportionality of offence - while he attempted to groom did not groom

Question 13

Purposes of Punishment - Incapacitation and Specific (Milat)

Answer 13

• Given a minimum non-parole period of 30 years due to significant risk posed to community
• Section 3G of the Crimes (Sentencing and Procedures) Act 1999

Question 14

Young Offenders Principles of Sentencing

Answer 14

• Under Section 22 of the Children (Criminal Proceedings) Act 1987
• Paramount conisideration is their rehabilitation into a productive and law-abiding citizen. However, this principle must be balanced with other sentencing principles such as the need to protect the community from crime
• Sentences imposed on young offenders should hold the young person accountable while recognising that they require guidance and assistance
• They should be tailored to allow the young person’s education to continue uninterrupted and promote reintegration into the community

Question 15

Statutory and Judicial Guidelines (Mandatory Sentences)

Answer 15

• Crimes Amendment (Murder of Police) Bill 2011 → R V Jacobs (2013)
• R v Barberis (2014) → due to Mitchell’s cognitive impairment, Judge founds he should not be subject to the mandatory life sentence reserved for people who murdered police. Had pled guilty the day the murder trial was due to start → sentence him to a minimum 26 years and maximum of 35 → The NSW Court of Criminal Appeal in December 2017 cut Mitchell’s NPP to from 26 years to 15 years. DPP sought leave to appeal but 3 High Court judges rejected stating no error of legal principle.
• ABC News 2020, “Mandatory minimum sentencing introduced for federal child sex offenders”
  bill covers the offences the states cannot, such as sex offences conducted overseas.
• Section 272 of the Criminal Code
  Mandatory minimum sentence of 5 years for international sexting
  Minimum penalty for having sex with a child overseas now 6 years
• Well-established principle that magistrates and judges have discretion when it comes to how they apply the letter of the law in sentencing a person for a crime, based on the circumstances of each individual case
• At the same time, there is also a well-established principle that some types of crimes are especially heinous and should be treated differently — particularly when it comes to the vulnerability of the victims.
• This is where mandatory minimum sentencing comes from — setting a baseline punishment for perpetrators of particular offences, and removing some of the discretion that judges have in setting penalties.
• BALANCE: SBS News 2024 “Australia has the worlds highest number of travel alerts, nearly for all child sex offenders”

Question 16

Youth Justice Conferencing

Answer 16

• 40% of cases referred to YJC from police and 60% from courts –> facilitated under Young Offenders Act 1997 (oxymoronic as the point is to keep young people out of court)
• Only 5% of offenders go through with YJC
• Before the Young Offenders Act, 68% of youth reoffended within 5 years
• Getting young offenders to face their victims and come up with a punishment together (RETRIBUTION)
• Victims feel this is more effective as they are more involved in the process
  88% of victims said they would recommend (BOSCAR 2021)
• R V Ben (2021)

Question 17

Operation Ironside

Answer 17

• Australia’s ratification of the UN Convention against Transnational Organised Crime (UNTOC) in 2000 commits it to take measures against transnational crimes, reflected within the federal jurisdiction (Australian Federal Police Act 1979) of the AFP, allowing them to engage across borders with other international legal systems which has been somewhat effective in responding to international crime.
• Ironside in 2018 as a response of the AFP to drug trafficking involved the distribution of encrypted devices for criminal communication
• AFP to cooperated with a range of law enforcement agencies such as Europol, and the FBI in what Home Affairs Minister Karen Andrews described as the “most significant operation in policing history here in Australia” (The Guardian, What was Operation Ironside?, 2022).
• Cooperation between international agencies allowed the AFP to ‘arrest 224 offenders in Australia’ (AFP, Operation Ironside, 2023) on drug trafficking charges under section 302 of the Criminal Code Act Cth 1995,
• Operation Greenhill, a subsidy of Operation Ironside, commenced in 2022 and is a further example of the AFP’s effectiveness, with the cooperation of Australian and Taiwanese law enforcement allowing the AFP to ‘intercept 30kg of methamphetamines before it reached Australia’ (Sydney Morning Herald, Operation Greenhill, 2022)’,
• Operation Greenhill ‘saved the community more than $6.8 million in drug-related harm’.
• Illicit drug use in Australia increasing from 16% in 2018 to 18% in 2022 (Australian Institute of Health and Welfare, Illicit Drug Use, 2022).
• “fear of arrest not working as a deterrent’ to drug use” (Sydney Morning Herald, National Prohibition is Failing, 2023)

Question 18

Operation Eastwater (2021)

Answer 18

• Operation Eastwater protection of individual rights, specifically human trafficking which involves the exploitation of people and a fundamental breach of human rights. - Illegal under Australia’s Criminal Code Act 1995, Divisions 207 and 271, Operation Eastwater was a covert joint operation between NGO Anti-Slavery Australia and the Australian Federal Police (AFP) which led to the first case; R v Lohan (2021 DCA), of “exit trafficking” in Australia in 2021.
• 2021 Guardian article “29 year old Lidcombe man sentenced to 21 months’ imprisonment in the District Court of NSW after using threats, coercion and deception to force a woman and her child to return to India”.
• 2017 he had bought the woman a one-way ticket back to India.
• NGO, Anti-Slavery Australia, tipped off the Australian Federal Police finding that Lohan had contacted Australian immigration authorities, and gave false information and adopted the identity of the woman to revoke her legal visa status to try and prevent her from returning to Australia.
• AFP arresting him in November 2017 while attempting to embark on a flight to Bangkok, and subsequently being imprisoned to 12 years in jail. Thus, domestic responses were effective in being responsive, enforceable and protecting the individual rights of the woman. Notwithstanding this case set a precedent in that it was the first exit trafficking case to be prosecuted, deterring others from committing such offences and protecting community rights to safety.

Question 19

International Criminal Court

Answer 19

• Established in 2002 by the Rome Statute, the International Criminal Court (ICC) is tasked with investigating, prosecuting and trying individuals committed of the most serious crimes against the international community
• United Nations Security Council (UNSC) referred the alleged genocide in Dafur to the ICC in March 2005 yet neither of the arrest warrants for the perpetrator Omar Al-Bashir were able to be enforced due to state sovereignty - investigation is still ongoing
• ICC has had minimal convictions with 31 cases, 10 convictions and 0 genocide convictions. Their first conviction in 2012 of Thomas Lubunga for war crimes (The Prosecution v Thomas Lubunga Dyilo) –> spent up 1 billion dollars prior to this first conviction
• USA and China do not recognise their jurisdiction.
• Guardian in 2022 publishing, “Why can’t the ICC get Putin?”, expressing how as Ukraine and Russia are not party to the Rome Statute they could not refer to the crimes themselves.
• However, Russia had twice previously accepted their jurisdiction in their 2014 invasion of Crimea, underpinning that indeed the ICC serves an important check and balance on nations to comply. Thus, the ICC serves as an important mechanism in placing pressure on individuals to comply with international laws, by advising the community on international standards surrounding the most serious crimes against humanity.

Question 20

Reporting Crime

Answer 20

• BOCSAR DATA June 2023
  65% of assaults are not reported.
  80% of domestic violence incidents go unreported
• ABS Crime Victimisation Survey
  Of victims of assault…18% didn’t report because the incident was ‘too trivial’, and 10% didn’t report because ‘there was nothing the police could do’ - Invisible Crime - Australia’s sexual assault crisis (2019)
• Domestic violence incidents are significantly underreported, although community attention has intensified over the past decade, with federal and social services ministers referring to domestic violence as a ‘national scourge’ and a ‘hideous condition’. - Domestic violence still at ‘unprecedented’ levels despite hundreds of millions being spent - ABC News 2019
  Sexual Assault Reporting Option (SARO)
• Option to report sexual assault without formal police obligation has been available since 2012
• However, new system unveiled by police replaces the tedious and somewhat traumatic process of filling in lots of paperwork
• Now through the online SARO portal, victims of sexual assault can provide screenshots, social media message + available in 12 different languages → ACCESIBILTIY
• The process can be anonymous (a chance to legally record evidence) or can be requested for a follow up by police

Question 21

R v Hughes (2017) - uses of evidence

Answer 21

Evidence Act 1995 s97 (The Tendency Rule) - significant probative value
Evidence Act 1995 s101 - outweighs prejudice

Question 22

Legal Aid

Answer 22

• Legal Aid Commission Act 1979.
• Legal aid is provided for serious indictable cases where the accused will most likely be denied justice if they appear without adequate representation, affirming the binding precedent of an offender’s right to procedural fairness established in Dietrich v The Queen 1992.
• Means and Merit Test which determines eligibility by looking at income, assets and the likelihood of success for each case.
• Legal Aid’s (NSW) 2022-2023 annual report noted that they provided 40, 215 instances of legal advice and saw a 15.7% increase in the number of service events provided to clients. Out of the services provided, 15.6% were for Aboriginal and Torres Strait Islander peoples
• Law Council of Australia’s article, ‘The erosion of legal representation in the Australian justice system,’ 2023, highlighted that less experienced lawyers are increasingly being used in legal aid cases and offenders are subsequently being pressured into pleading guilty to satisfy the Merit test and be eligible for legal aid.

Question 23

Bugmy v the Queen (2013) –> Lloyd v the Queen (2021)

Answer 23

• Bugmy v The Queen (2013) : The defence doesn’t diminish over time. So if I’ve been raised in a horrendous family - that doesn’t diminish over time. SO I can use that no matter how many times I want → the effects of childhood depravation do not diminish with the passage of time and repeat offending → these principles apply to both Indigenous and Non-Indigenous offenders
• Application of Bugmy principles - Lloyd v The Queen (NSWCCA) 2021 (criminal trial and sentencing)
  Crime carried up to 20 years as a serious indictable offence carries a maximum penalty of at least 5 years
  Through EAGP given 25% discount
  Appealed using Bugmy principle where social disadvantage does not diminish over time
• NSWCCA Judge, “the profound degree of depravation was not taken into account
• Did not void sentence but resentences when reducing it by a year

Question 24

Role of the Victim in Sentencing - Victim impact statements

Answer 24

• Victim Rights Act 1966
• Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2008 (NSW) –> Certain victims can give VIS via CCTV
• R v AC (2016), ABC News 2015, “Father of ‘child-bride’ should get lengthy sentence to deter others, prosecutor agrees”
• 13 year old married to a 26 year old man held by a local Shiekh in hunter valley home
• Miscarried after falling pregnant, and the man she married was thus jailed for at least 7 ½ years
• Prosecutor Siobhan Herbert, “the 63 year-old father had shown no insight into his offending or the harm done to his daughter”
• Use of religion as a defence - court rejected this
• Victim impact statements were not helpful in this case as the child had been “brainwashed” supporting the offender’s persistent sexual abuse

Question 25

Age of Criminal Responsibility

Answer 25

• Crimes Legislation Amendment (Age of Criminal Responsibility) Bill 2019 - failed to pass - Would have ammend Crimes Act 1914 and Criminal Code Act 1995 to increase the minimum age of criminal responsibility in the Commonwealth to 14 yrs of age - failed to progress after 2020
• Australian Human Rights Commission 2021 “the minimum age of criminal responsibility”
• There are many reasons the commission advocates for raising the age of criminal responsibility, including that
• Many children involved in the criminal justice system come from disadvantaged backgrounds and have complex needs better addressed outside of the criminal justice system
• Raising the age would help decrease the rate of overrepresentation of Aboriginal Torres Strait Islander children in detention - the productivity commission’s latest figures tell us ATSI youth are detained at a rate of 23 times non-ATSI youth
• Research development on the brain brain development shows that 10 year olds have not developed the requisite level of maturity to from the necessary intent for full criminal responsibility
• Children under the age of 12 years lack the capacity to properly engage in the criminal justice system, resulting in a propensity to receive a plea bargain, give false confessions, or fail to keep track of court proceedings
• Over 50% of children in juvenile holding centres are on remand
  In 2019 the Committee on the Rights of a Child recommended the age of criminal responsibility to be raised to 14 years - would bring Australia in line with international standards.

Question 26

Childrens Court - R V Ben (2021)

Answer 26

• Two teenage boys have pleaded guilty to deliberately killing 14 kangaroos on the New South Wales
• Far South Coast (ABC News, 2021)
  ​​Both boys each faced one count of recklessly beating and killing animals, a crime that carries a maximum penalty of three years in jail. But their lack of criminal history and remorse was considered.
• The two boys were ordered to participate in a youth justice conference as part of their sentence. It will require them to meet with different parties involved to discuss the harm they caused. They will not be required to reappear in court.
  Magistrate Williams: “the conference could include police officers and that he would recommend that wildlife carers attend.”
• Led to charges being dismissed after community service hours and counselling completed (program)

Question 27

International Criminal Tribunal for Former Yugoslavia (ICTY)

Answer 27

• AD HOC tribunal created by the UN Security Council Resolution decision in 1993. It has jurisdiction over breaches of the geneva conventions and international customary law committed in the former yugoslavia since 1991
• Slobodan Milosevic - arrested for ‘war crimes’ and ‘crimes against humanity’ in 2001, placed on trial in 2002 and died just before the end of his trial in 2006 - not so effective as it took so long to try him and he died awaiting the trial to finish
• Radovan Karadzic (the butcher of Bosnia) - held in custody of ICTY in the UN detention unit. Charged with 11 counts of war crimes. In March 2016, found guilty and charged 40 years of imprisonment → despite appeal in 2019, conviction was upheld and changed his sentence to life imprisonment (effectiveness)
  -The Prosecutor v Ratko Mladic (2017)
  found guilty of genocide, extermination, murder, crimes against humanity and war crimes - sentenced to life imprisonment
  Orchestrated brutal ethnic of Bosnian Muslims and Croats from territories they and other Serbian ultra nationalists considered “Greater Serbia”
• EVALUATION- there have been 64 convictions so far - fairly effective in comparison to ICC

Question 28

International Criminal Tribunal for Rwanda (ICTR)

Answer 28

• Created in 1994 and has jurisdiction over the genocide committed in Rwanda in 1994 (over 1 million people massacred)
• Closed operations on 31 december 2015
• Kambanda Case (1998) - only state PM to plead guilty to genocide and is serving life imprisonment (effectiveness)
• Recognition that rape is used as a form of warfare and ethnic cleansing and sentencing those who committed these acts
• Out of the 93 individuals sentenced to the ICTR 63 have been prosecuted - however this has cost US $1 billion
• This is in contrast to the Gacaca traditional courts in Rwanda which has put almost 2 million people on trail since 1994 and only cost $40 million

Question 29

s22C: Temporary new bail test for offenders 14-18 years old

Answer 29

• A temporary new bail test for offenders aged between 14 and 18 charged with committing serious break and enter offences or motor vehicle offences while on bail for similar offences has been introduced. - This new test requires that the bail authority must have a high degree of confidence that the young person will not commit another serious indictable offence if granted bail on the new alleged offence.
• This requirement is set to ‘sunset’ after 12 months, meaning that it will no longer be in force after March 21, 2025, and its effectiveness will be reviewed by the Department of Communities and Justice using data from BOCSAR → Make it harder for children aged over 14 years and under 18 years to get bail due to Mooree – negates section 16B that young offenders don’t have to show cause – puts in a presumption against bail → rule of law → 22% of residents are Indigenous

Question 30

The introduction of a new offence at s154k of the Crimes Act 1900, the ‘Post and Boast’ offence

Answer 30

• Post and Boast’ is where offenders take pictures or record themselves committing offences and either broadcast it online live or post it to social media pages after the event.
• Offenders who are found guilty of this offence will automatically receive a 2 year penalty in addition to their sentence for the commission of the break and enter or motor vehicle theft offence.
• There will be a statutory review of these offences in March 2026 to determine the effectiveness at addressing the issue of post and boast offences.

Question 31

Bail and Other Legislation Amendment (Domestic Violence) Act 2024

Answer 31

• Added DV and coervice control to Show Cause offences
• Molly Ticehurst case
• Sydney Morning Herald Article May 2024, “Rising number of men ignore domestic violence orders” - Breaches of ADVOs have increased by 35%

Question 32

Backing Bourke

Answer 32

• Aboriginal legal service solicitor Sarah Hopkins is head of Just Reinvest NSW, which has partnered with Maranguku to bring a new approach to the town, “shifting resources out of the prison system into early intervention and crime prevention and diversion”
• Inspired by justice reinvestment, superintendent Greg Moore ramped up visits to offenders and perpetrators by partnering with substance abuse counsellors. “We’ve made between 70-80 visits and haven’t had one person that’s been visited become the subject of a repeat offence. We are continuing this indefinitely, and potentially extending it over to other crime categories”
• Bourke has the highest rate of offences committed by young people in NSW, with the majority by Aboriginal youth.
• Aboriginal peoples make up almost ⅓ of all people jailed in Australia for driving offences. As part of the justice reinvestment initiative, Peter Mackay is teaching kids in Bourke to drive for free. Since starting the program, Mr Mackay has helped 50 people get their L’s and P’s.
• Bourke has the highest rate of domestic violence in NSW.

Question 33

R V Perez

Answer 33

• R v Perez (2023): First stealthing charge
• Adrian Perez is the first person to be sentenced under the new stealthing laws in NSW.
• The 21 - year -old pleaded guilty to one count of sexual intercourse without consent after removing his condom during a consenual session with a sex worker in April 2022.
• He was tried in 2023 and sentenced to 2 years in jail with a non-parole period of 14 months.
• Application of Affirmative consent model (Justice for victim) / First of its’ kind case.
• Reflects societal standards that there are various forms of sexual offences and accused must take reasonable steps to ascertain consent (which Perez did not after the defendent made it clear she did not consent to sex without a condom).

Question 34

June 2022 - Crime Legislation Amednment (Sexual Consent Reforms) Act 2021

Answer 34

• BOSCAR DATA (2024): Only 7% of sexual assaults reported to NSW Police end up in a guilty verdict in court. Only 15% of sexual assaults reported to NSW Police result in charges being laid, and of those cases that do go to court, fewer than half are proven.
• Introduced Jury direction reforms (Criminal Procedure Act 1986 NSW), Affirmative consent model (Section 61 HI)
• Directing the Jury: The final changes made by the sexual consent legislation were amendments to the Criminal Procedure Act 1986 (NSW), under newly created chapter 6 part 5 division 1 subdivision 3, with sections 292 to 292E setting out directions a judge can give to a jury in relation to consent.
• These include that non-consensual sex can happen in many different circumstances to many different people, that there is no typical response to sex crimes, that there can be an absence of violence or threats involved, and that appearance or intoxication are no indication of consent given.
• The reforms aim to ensure fairer and more effective prosecutions of sexual offences, address misconceptions about consent in trial proceedings, improve survivor experience of the justice system, and enhance juror understanding of the complexities of sexual offending and the importance of not relying on rape myths and stereotypes in making their decisions.

Question 35

Consent Reforms 2022

Answer 35

• Under section 61 of the Crimes Act 1900, the main reform stipulated the definition of consent. This reform in 2021 allowed for the definition to be updated “at the time of sexual activity, the person freely and voluntarily agrees to the sexual activity” (61HA, Crimes Act 1900).
• This was evident in the 2018 Four Corners episode ‘I am that girl’, when Saxon Mullins described her 2013 experience of sexual assault and the resulting five-year criminal proceedings that ultimately resulted in the acquittal of the perpetrator.
• Further media uproar was evident from articles published by UNSW, Guardian and the Women’s Agenda. The NSW Government was reponsive to a call out by the Four Corners investigation into the high profile case (R v Lazarus [2017] NSWCCA 279), reffering the state consent laws to the NSW Law Reform Commision (NSWLRC) in May 2018.
• Mullins’ story, and how it was impacted by complicated and nuanced laws around consent, disturbed New South Wales Attorney-General Mark Speakman “What this shows is that there’s a real question about whether our law in New South Wales is clear enough” who subsequently referred the laws to the NSW Law Reform Commission who were asked to review the meaning of consent (S 61HA of the Crimes Act - Subsection 2, “In total, forty-four recommendations were made by the Law Reform Commission, with all forty-four supported, or supported in principle, by the NSW Government” (UNSW, 2022).
• 1 in 5 women (Reachout Australia, 2023) will be subject to sexual violence in their lifetime.
• 2018-2021 #LetHerSpeak campaign challenging victim gag-laws, allowing for the testimonies of 17 survivors, to tell their stories without risk of persecution. In 2021, the Teach Us Consent movement propogated by Chanel Contos called for more holistic and earlier consent education in Australia.
• “petition calling for more holistic sexual consent education with over 30,000 signatures, and almost 5,000 testimonies confronted Australians with the harsh reality that we live in a rape culture” (Guardian 2021)
• According to Better Health 2023, Indigenous women are more than 30% more likely to be hospitalised for seuxal violence, and are often met with negligence from authorities when seeking help. Australian governments need to support the United Nations Human right recommendation on violence towards Indigenous Women, in order to make the reforms to these laws equitable and just, for all victims of sexual violence, “it’s really time for Australia to take this issue seriously and take the blinkers off and start valuing the lives of Aboriginal women and girls of this country” (SBS, 2021 - in response to the amendments).
• European countries such as Denmark, Greece, and England, Amnesty International has “supported campaigners and activists across Europe, playing its part in putting pressure on governments to introduce reforms” (Amnesty International 2020). Denmark similarly changed their definition of consent to Australian jursidctions, however they have a 75% conviction rate (statista 2022), whereas Australia has a 1.5% (Pullar 2022) conviction rate.

Question 36

R v Wei Tang (2009)

Answer 36

• In 2005, Ms Wei Tang was charged with five counts of possessing a slave and five counts of intentionally exercising over a slave, the power to the right of ownership namely the power to use, contrary to section 270. of the Criminal Code
• Between August 2003 and March 2003, Ms Wei Tang imported 5 Thai women who voluntarily entered into contracts as sex workers in a brothel owned by Ms Tang
• Each woman incurred a debt of 40-60k as Ms Wei Tang did not uphold promises to provide for travel expenses and food
• Upon arrival each of the womens’ passports and airline tickets were confiscated and their movements were restricted
• May 2003 brothel was raided and Ms Tang and 2 other accomplices arrested
• Sentenced to ten years imprisonment with a non-parole period of 6 years
  PRECEDENT
• the first jury conviction under Australia’s Criminal Code (Cth) slavery offences s 270
• High court case (binding precedent)

Question 37

R v Schultz

Answer 37

• In a legal precedent, an SAS leader has been charged with the war crime of murder under Australian law
  Charges relate to the shooting of an Afghan man in 2012 when the soldier was deployed in Afghanistan with Australian forces
• International Law professor, Dr Ben Saul, “the laying of the charges is a significant and remarkable legal development … avoids the ICC having to step in”
• As a part to the ICC statute - Australia has an OBLIGATION to investigate war crimes
• AFP said it would be alleged he murdered an Afghan man while deployed to Afghanistan with the Australian Defence Force (ADF).
  Division 268 of the Australian Federal Criminal Code (Cth)
• Non-legal: killing was revealed in March 2020 by the ABC’s Four Corners program ‘Killing Field’, which broadcast footage showing Mr Schulz shooting Mr Mohammad while the Afghan man lay on the ground

Question 38

Youth on Track

Answer 38

• Youth on Track is a voluntary and discretionary program - the youth must consent to be involved
  Must be within 10-17 years
  Have at least one formal contact with police
• Engages all members of the the young person’s life including teachers, parents and case workers
  Fast track and youth on track pathways suited to each offender
• Police and schools will be able to refer young people who they believe are at risk of committing crimes to “literacy, substance abuse and mental services”.
• This is a much better idea especially the mental health services
• Only a trial in Blacktown, Kempsey & Newcastle (‘Getting youth back on track’, ABC News 2013)
  Recent review in SMH 2013 (‘Youth program off track: opposition), found that it had fallen well short of the 300 youths it was supposed to help in the first year, only assisting 35 in the first 6 months and is a $10 million/year program. Lack of referrals.
  NEW DATA, 2019 BOCSAR
• 30% of youth had no prior interactions with police (social crime prevention)
• Only 35% of the stakeholders said the program was operating well
• 25% of young people are transient - families and themselves disconnected and not fully wanting to engage in the program
• 55% of case workers noted that Youth on Track is only suitable for some youth

Question 39

Evidence Amendment Act

Answer 39

• There has been a bad change for the rights of suspects in the Evidence Amendment (evidence of silence) Act 2013 and the right to silence has been taken away
• If you don’t explain what happened to police when arrested .. then you say you’re not guilty in court then tell the jury (if it is an indictable offence) to draw a negative inference
• Only applies to the person arrested for the crime, not witnesses who are frustrating police in investigations
• The NSW Law Society, “the prosecution will not longer have to prove its case beyond reasonable doubt but could force the person accused of a crime to prove their innocence”
• Does not apply to Young Offenders
• ABC News 2013, “Anything you don’t say may be used against you”
• NSW government’s changes to right to silence to take a ‘common sense’ approach
• Community uproar, “rights are always undermined by euphemism” - Chris Borg
• From now on, NSW Police will qualify their standard police caution “you are not obliged to say or do anything unless you wish to do so” with this sentence: “But it may harm your defence if you do not mention when questioned something you later rely on in court.”
• Juries will be allowed to “draw an unfavourable inference” from the fact that somebody decided to remain silent before a case got to court.
  “What’s a good right if you’re being punished by it”