Crime Flashcards
what are indictable offences?
- Indictable offences are serious offences that carry significant penalties and are heard in the Supreme Court of the District Court
It is an offence triable by a judge and jury in a higher court on an indictment.
what are summary offences?
- Minor criminal offences that are heard by a magistrate in the Local Court or the Children’s Court.
It is the least serious type of criminal offence.
who is a magistrate?
A judicial officer who hears cases in a lower court, and typically deals with more minor or preliminary matters.
what is the meaning of crime?
A crime is “any act or omission committed against the community at large that is punishable by the criminal law”.
what is mens rea?
- Mens Rea: [Guilty mind = intention] The ‘guilty mind’ meaning an accused actually had intention to commit a crime. There must have been a deliberate intent to commit the act on the behalf of the accused.
what is actus reus?
[Action] ‘Act of committing a crime’ requires an accused to have actually committed the crime. The ‘act’ or failure to act (omission). Something must have been done or something that should have been done, not done (omitted) in order for this element to be proven.
what is a strict liability offence?
- Strictly liable. No mens rea needed, only actus reus. Strict liability offences do not require proof of fault and provide a defence of an honest and reasonable mistake of fact. The general principle is that strict liability may be imposed where a person in placed on notice to guard against the possibility of inadvertent contravention.
what is causation?
- The link between the actus reus (action) and the outcome for the victim. To find someone guilty of a criminal act, it is necessary to prove that there is a casual link between the accused’s actions and the crime committed. It must be proved that there is a link between the act (or failure to act) and the harm which resulted.
what is a drug offence?
- Any involvement with illegal drugs. Raises issues of whether drug use should be treated as a crime or a medical condition.
what is a preliminary crime?
- Crimes that have not yet been committed or fulfilled
When a crime is planned or attempted to be carried out.
what are public order offences?
Conduct classifies as an offence as it breaches certain codes of behaviour that Australian society deems acceptable
what are driving (traffic) offences?
Can be statutory & strict liability. Mainly covered by Crimes Act 1900 (NSW).
what are offences against the person?
- Involve some form of injury to an individual.
Most are listed in the Crimes Act 1900
(NSW)
what are economic offences? (White collar crimes)
Damage to, or a loss of victim’s property
what are offences against the sovereign?
Crimes that threaten security and democracy. Raises issues of balancing individual freedom and national security.
what does parties to a crime mean?
These are the people or groups of people who have participated in committing an offence. This can be before, during or after an offence.
what does principal in the first degree mean?
- person or persons who actually committed the main offence. (perpetrator)
- Must be at the scene.
Actual perpetrator of crime.
what does principal in the second degree mean?
- person or persons who were present or who assisted the principal in the first degree in committing the offence
- present at the scene, assisting (accessory or accomplice)
Assisted the perpetrator to carry out the crime.
what does accessory before the fact mean?
- is the person or persons who helped plan the offence but were not at the scene when it occurred.
Person who helped plan the crime
what does accessory after the fact mean?
- person or persons who helped the principals or found out about the offence after it had been committed
Person who knowing about the crime, helped the perpetrator afterwards
what is situational crime prevention?
- Situational crime prevention attempts to increase the likelihood of perpetrators being apprehended. It focuses on making crimes more difficult to commit and the acts less rewarding.
what is social crime prevention?
- Social crime prevention focuses on improved conditions within society. Poverty, poor school behaviour are all areas which, if nipped in the bud early, may lessen the incidence of criminal activity. Programs, drop in centres, sports etc.
what laws govern police powers?
Police powers in NSW are primarily governed by the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) and common law.
within the criminal investigative process, what is reporting crime?
- This is the first step in the Criminal Investigation Process.
- Most crimes are reported by private citizens.
Crime Stoppers is a community-based program to assist with the reporting of crime.
within the criminal investigative process, what is investigating crime?
- Police exercise discretion when laying criminal charges – these must be based on evidence collected and is often done in conjunction with the ODPP.
features of arrests:
Police have a right to detain people unless they lawfully make an arrest. An arrest can occur if:
* Belief someone has, or is about to, commit a crime.
* Witness a person committing a crime.
Have an arrest warrant.
what is a summons/court attendance notice?
- Minor matters (usually summary offences) may result in a ‘summons’ to attend a hearing at a local court, rather than an arrest.
what is a warrant?
- An order issued by a court authorising police or other law enforcing agency to do something such as make an arrest, search a person or property or enter a business or residence for various reasons.
- It is designed to collect evidence, not make an arrest or accusation.
‘Prima facie’ means first instance of evidence indicates a crime has been committed, being the basis for issuing a warrant.
what is bail?
Definition: Bail is a conditional freedom…it is conditional on the promise that they person agrees to appear in court.
Once an individual has been formerly charged with an indictable offence they have the right to apply for bail so as to be released from custody while awaiting trial. If bail is refused or they do not have the financial means to meet the bail requirements they will be detained in the remand section of a prison.
what is remand?
- If the accused person is refused bail or they cannot raise the funds, they are remanded in custody (remand).
- A special remand section exists in most jails.
- People can spend many years in remand before their case comes to trial (generally most indictable offences take up to 2 ½ years to come to trial).
- Up to 40% of people on remand are found not guilty.
There is no compensation available to those who are found not guilty.
what is detention?
- Generally a person cannot be detained unless they have been arrested.
- Police can generally only detain someone for up to 8 hours, unless they are charged with a crime.
Concerns have been raised over the longer detention of suspects of terrorist activities (such as the case of Mohammed Haneef) as violating the ICCPR.
what is interrogation?
- The police may use force to obtain an arrest but it must be reasonable.
If they kill a person while they are arresting them, and they are using excessive force, and they know it, they may be guilty of murder. If they don’t know they are using excessive force and the person dies, they may be guilty of manslaughter (it depends on mens rea)
what is the right to privacy?
- Citizens do not have to allow police to search their person or premises without a warrant
- Citizens may refuse to have body samples or photographs taken - citizens do not have to submit blood or DNA samples, unless accused of a serious offence
- Citizens may refuse to participate in an identification parade.
what is the right to communication?
- Police are supposed to allow an accused person the right to contact a friend, relative, solicitor or doctor if requested. They may communicate with a lawyer or family members prior to police questioning.
They may request the presence of an interpreter during questioning
what is the right to a lawyer?
An adult has no right to have a lawyer/witness present when questioned although the courts have stated that a lawyer should be allowed if requested
what are the laws relating to illegal evidence?
- A confession cannot be used in court unless obtained voluntarily; they must be electronically recorded and legally obtained
A judge CAN refuse to use evidence obtained illegally but must balance the rights of the victim, offender and community when coming to a decision
what are the courts jurisdiction?
- Court jurisdiction is the power or authority to deal with certain matters, and the power of a court to hear a matter.
○ Local court: summary matters
○ Coroner’s court: suspicious deaths, serious fires
○ Children’s court: children under 18
○ District court: offences against the person, indictable matters
○ Drug court: people addicted to drugs who commit serious offences
○ Supreme court: murder, serious drug trafficking, serious rape, terrorist offences
Court of Criminal Appeal: hears appeals from the Supreme Court and the District Court
what is the adversary system?
The adversary system of justice is at the heart of common law. Adversary systems are sometimes described as gladiatorial; proceedings are dominated by opposing lawyers, locked in battle, presenting evidence and choosing witnesses to represent their respective cases points of view.
what are some strengths of the adversary system?
- The system is fair and equitable to both sides as they are in control of their own cases and each is subject to the same rules of evidence and procedure.
Each party is given equal opportunity to bring forward evidence to support their case and to cross-examine the evidence of the other party
what are some weaknesses of the adversary system?
- The trial is slow in settling disputes.
- The system is costly to the parties and the community.
- The fact that the court can only hear evidence presented by the parties and not seek its own witnesses could lead to injustice.
- The system is discriminatory against some groups in the community, for example, those with limited financial resources, lack of language skills or with cultural differences.
- The adherence to strict rules of evidence and procedure may mean the truth is not discovered.
Each side may only present evidence favourable to its case; therefore evidence of important facts may not be presented.
what is a judge?
- Conduct trials according to rules of the Court – eg ruling on evidence and points of law, instruct the jury, pass sentences.
They cannot decide a case but must remain impartial to the cases presented by the defence and the prosecution.
what is a police prosecutor?
- Special trained Police officers that handle most summary cases
who is the director of public prosecutions?
- Appointed by Parliament to run the ODDP.
Leads a team of Crown Prosecutors (Barristers) – although occasionally experts will be used to help in some cases.
what are public defenders?
- They are salaried lawyers (paid by the govt).
They represent people charged with serious criminal offences and who qualify for legal aid.
what is a plea?
- An answer to an indictment (a criminal charge)
- A formal statement of guilt or innocence of the accused.
what is a charge negotiation?
Charge negotiation (also known as case conferencing) is when an accused chooses to plead guilty in exchange for getting a reduced charge, or, in some situations, charges withdrawn and/or a lesser sentence.w
what are the advantages of using charge negotiation?
- Increases the rate of criminal conviction.
- Reduces the load on the criminal justice system.
- No trial - no psychological impact on the victim.
Speeds up the trial process.
what are the disadvantages of using charge negotiation?
- Can be seen as unfair to victim’s families as lesser sentences are imposed
- Crimes may go unpunished
- Promotes corruption - overcharging in severity and number
- Charges with the wrong crime/offence - justice is not achieved.
Reduces the protection of society as it doesn’t deter future crimes from occurring.
what is legal representation/legal aid?
- An accused person has NO automatic right to legal representation; however, those charged with serious offences are unlikely to receive a fair trial without (established by Dietrich v The Queen 1992 HCA).
- The Legal Aid Commission was therefore established to enable those unable to afford legal representation to opportunity to have a lawyer.
- Legal aid is a way of ensuring justice for the offender, while also aiming to safeguard people’s rights in the legal system and to improve their access to justice. In the Australian legal system, a defendant has the right to a fair trial, and Australian courts have ruled that a trial will rarely be fair for an accused if they do not have adequate legal representation.
what is the burden of proof?
- Under our legal system, a person is considered innocent until proven guilty. This means that the prosecution has the burden of proving this - called ‘the burden of proof’. In other words, the burden is on the prosecutor to prove the case.
However, if using a certain defence e.g. mental illness, the burden of proof is on the Defence
what is the standard of proof?
- The prosecution must meet the standard of proof for criminal matters: they must prove the case beyond reasonable doubt. This means that, to succeed, the prosecution must show that there is no reasonable doubt that the accused committed the offence.
The accused must be found guilty beyond reasonable doubt or acquitted.
outline the use of evidence
During a criminal investigation, the police will gather a wide range of evidence that will be used in court to prosecute the accused. For evidence to be admissible in court, it must be relevant to the case, and legally obtained by the police. Evidence will be inadmissible if the evidence has been obtained illegally (unless there is a special exception made by the judge), deemed irrelevant, indirect evidence, hearsay, or relates to a person’s opinion (unless that opinion is an expert or professional).
outline the use of witnesses
One of the most important types of evidence is that of a witness. Witnesses can be called to give evidence in court and may be examined by the prosecution or the defence. When answering questions from the prosecution or defendant, the witness must answer them truthfully. If a witness is caught lying, they may be guilty of perjury. Another kind of witness evidence is that of an expert witness. Their job is to give testimonies based on their expert or specialised knowledge, and give an opinion or interpretation of the evidence. Expert witnesses are the only witnesses to be able to give their opinion as evidence.
what are the two types of defences to criminal charges?
- Complete defences, if successful leads to acquittal, which means not guilty/innocent.
Partial defence, if successful means you will get a lesser charge and a lesser sentence
what is complete defence, and what are the 8 types?
- Complete defences allows the accused person to get off the charge completely (aka absolute), with the actions of the accused person being justified and/or excused:
- Mental Illness Or Insanity
- involuntary behaviour or automatism
- mistake
- self-defence
- compulsion
- consent
what are the 3 types of partial defences?
- provocation
- diminished responsibility
- infanticide
what is the role of juries?
Juries are used in indictable cases, and may be used in either the District Court of the Supreme Court. The role of the jury is to reach a verdict on the guilt or innocence of the defendant based on the evidence presented to them at trial (a criminal trial consists of 12 jurors, and a civil trial consists of 6 jurors). A jury that is unable to reach a verdict is called a ‘hung jury’. In these situations, the case is dismissed and a retrial will be ordered, meaning that the whole case will begin all over again.
what are verdicts?
A verdict is the decision made by the Jury in a criminal trial that determines whether an accused person is guilty or not guilty of an offence. The Jury Act 1977 allows majority verdicts in cases where reasonable time for deliberation has passed and the court is satisfied that a unanimous verdict will not be reached. A ‘majority verdict’ is defined as a verdict agreed to by 11 jurors where the jury consists of 12 persons.
what are statutory guidelines?
- Guidelines aim to reduce inconsistencies in trials by judges as they are given considerable discretion in deciding sentencing outcomes.
- These are guidelines to the judge about how to sentence a person; these are made by statute law (hence, they are called ‘statutory guidelines’)
- Statutory guidelines are outlined predominantly by The Crimes (Sentencing Procedure) Act 1999 (NSW),which sets:
- Types of penalties that can be imposed and when these can be used
Limits and guidelines on sentencing such as maximum and minimum time for imprisonment for particular crimes.
what are judicial guidelines?
- Judicial guidelines are in the form of ‘guideline sentences’, which is a judgement given about a sentence for a particular crime. These judgements are taken into account by other courts, delivering sentences for similar offences to reduce inconsistency in sentencing and ensure cases are treated alike.
Judicial officers can be gu
what is the purpose of deterrence? (plus what are the 2 types)
Deterrence is the act of preventing someone from committing a crime by enforcing consequences. There are two types of deterrence:
- Specific deterrence – punishment against an individual offender aiming to deter then from committing crime in the future. Targeting specific offenders with a punishment to dissuade the offender from committing a similar crime in the future due to the fear of punishment.
General deterrence – punishment meant to make an example of an offender in order to send a message to the rest of the community. Targets the general public with punishments that dissuade the general public from committing a similar crime.
what is the purpose of retribution
Punishment seen to be morally right or deserved based on the nature of the crime.
This means that the punishment should be proportionate to the crime, but not excessive. Retribution is a necessary reason for punishment, as it prevents offenders from gaining their criminal conduct.
what is the purpose of rehabilitation?
The main aim of rehabilitation is to prevent recidivism (the tendency of a convicted criminal to reoffend) by helping criminals choose not to return to the same patterns of behaviour and lifestyle that led them to offend in the first place.
what is the purpose of incapacitation?
This aims to make an offender incapable of committing further offences by restricting their freedom.
Incapacitation is one’s inability to perform various functions. Incapacitation makes the offender incapable of committing further offences
what are aggravating factors within sentencing?
Aggravating factors are usually put forward by the prosecution at the sentencing hearing to persuade the judge of the severity of the crime.
what are mitigating factors within sentencing?
Factors put forward by the defence that persuade the judge that the maximum penalty should not be imposed, and that a lesser sentence would be better.
describe appeals?
A person who makes an appeal is called an appellate. The appellate makes an appeal when they want their case to be reviewed by a higher court. This is usually because the appellate is unhappy with the outcome of their case, such as wanting a lesser sentence. However, the Crown can also make an appeal when it believes that a sentence is too lenient.
what are the two types of appeals?
Appeal Against Conviction and sentence appeal
what is an Appeal Against Conviction
an appeal where the appellant (the defendant) argues that they did not commit the offence of which they were found guilty.
what is a Sentence Appeal?
an appeal against the severity or leniency of a sentence
what is a no conviction recorded punishment?
The offender is free to go and has no criminal record. This allows for someone’s charge to be dropped, potentially in the hope to rehabilitate.
what is a caution?
A caution is a warning given to a person when they commit an offence.
what is a conditional release order?
Conditional release orders are a way for a person who pleads guilty or is found guilty of a criminal or major traffic offence to avoid a harsh penalty, or even a criminal conviction altogether, provided they comply with the conditions of the order.
what is a fine?
A fine is a penalty that required the person who received the fine to pay a sum of money as punishment for not obeying a rule or law.
what is a community correction order?
A community correction order can be thought of as a type of good behaviour bond with conditions, and is imposed in lieu of a prison sentence in New South Wales.
what is an intensive correction order?
An ICO has strict conditions and offenders who breach the conditions of the ICO may be liable for full-time custodial sentence.
what is imprisonment?
Imprisonment is the most sever penalty that can be imposed on an offender.
what is a criminal infringement notice?
Issued on the spot generally, eg. speeding fine, offensive public behaviour/language
what are diversionary programs?
Diversionary programs are a rehabilitation, treatment, or intervention program that is intended to address underlying problems in individual’s, such as drug or alcohol dependency.
what is the forfeiture of assets?
Asset forfeiture is the confiscation of assets from a person who is suspected of involvement in criminal activity.
what is circle sentencing?
Circle sentencing is an alternative court that specialises in the sentencing of adult Indigenous Australians on the basis of Indigenous Customary Laws and more traditional Indigenous forms of dispute resolution.
what is restorative justice?
Restorative justice is an approach to justice, aiming to repair the harm done to victims.
what is security clarification in post sentencing considerations?
Security classification is the principal factor in determining an inmate’s placement in prison. When sentenced an offender will be given a security classification – maximum, medium, minimum.
what is protective custody in post sentencing considerations?
A prisoner can apply for protective custody when they are feeling unsafe or scared around the other prisoners or are subjected to violence of harassment by the other prisoners.
what is parole in post sentencing considerations?
Parole allows prisoners to leave prison before they have completed their full prison sentence, but only after their non-parole period. Prisoners who have been approved for parole by the State Parole Authority (SPA) must follow the conditions given with their parole.
what is preventative detention in post sentencing considerations?
preventative detention involves the imprisonment of an individual who may inflict harm to others in the future.
what is continued detention in post sentencing considerations?
A continued detention order (CDO) aims to prevent someone from committing crimes. Continued detention is when an offender is kept in prison after they have completed their prison sentence to prevent them from causing any more harm to others.
what is sexual offenders registration in post sentencing considerations?
Anyone convicted of certain sexual offences (mostly acts against children) must register on the New South Wales Child Protection Register (also known as the sex offender registration) within seven days of being convicted of a sexual offence.
what is deportation in post sentencing considerations?
Deportation is the forcible removal of a person from one country and returning them to their country of origin.
what does doli incapax mean?
‘incapable of wrong’
how does doli incapax apply to Children under 10
Doli Incapax is the conclusive presumption and cannot be argued
how does doli incapax apply to Children aged 10-13
Doli Incapax is still the conclusive presumption, but the prosecution is allowed to argue against it.
how does doli incapax apply to children Children aged 14-17
Doli Incapax no longer applies and the offender can be held criminally responsible.
what are the rights of children when questioned or arrested?
- Children have the same rights as adults and more when they are being questioned or arrested. A child’s welfare and safety is at the forefront of concern, therefore certain conditions different to adults exist:
- A child may be searched, but not strip-searched, and only if there is reasonable belief they have illegal drugs, dangerous weapons or stolen goods in their possession.
- Parent or guardian must be contacted before an interview is conducted and must be present (or an attorney) when being questioned.
- A parent or guardian must be notified if a child is taken into custody by police.
- Children have the right to have an independent adult as a support person during any police procedure. A child cannot refuse this right.
- The police must tell the child their rights and assist the child in exercising those rights.
The power of search and seizure are the same for adults and children, except for the strip search of a child under 10.
what are the penalties for children?
Dismissal
Conviction
Adjournment
Bond
Youth Justice
Fine
Probation
Community Service Order
Suspended Control Order
Control Order
what is the childrens court procedures?
The role of the Children’s Court is to deal with the criminal matters of children and young people under 18, and deal with the matters of care and protection of children and young people referred to it by the Department of Family and Community Services. The Children’s Court has jurisdiction over most criminal matters involving children, except for traffic offences and serious indictable offences such as murder.
what is the childrens court operations
The Children’s Court is run by a single magistrate who had undergone specialist training by the Judicial Commission of NSW in dealing with youth matters and proceedings. Principles the Children’s Court must follow:
- Children’s proceedings are conducted in a closed court to protect the identity of the child
- The media must not publish the name of the child unless they have been authorised by the court or the child is deceased
- The court must take measures to ensure the child understands the proceedings and answers any questions the child has
The child has equal rights to those of adults
what are the alternatives to court
Warnings
Cautions
Youth Justice Conferences
Community Services of the Department of Juvenile Justice
what are crimes against the international community?
- Crimes against international law may involve atrocities committed against nations and the fabric of society.
- For example genocide and crimes against humanity.
Crimes against the international community include:
- Genocide -the deliberate extermination of a religious, national or ethnic group
- E.g. Bosnia 1992-1995
- War crimes -crimes carried out during war time
- Crimes against humanity -crimes considered to be against the international community; systematic and organised by a government
Crimes of Aggression (added in 2017)
what are transnational crimes?
- Transnational crimes occur across international borders, either in origin or effect, meaning that the organisations or people involved in the crime could be responsible for that crime in several countries.
- These crimes are therefor handled under both the criminal system of the state and through international criminal provisions.
- The main transnational crimes are:
○ Hostage-taking
○ Terrorism
○ Drug trade
Pornography
