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HSC Legal Studies > CRIME > Flashcards

CRIME Flashcards

1
Q

Elements of crime, define, cases.

A

Actus reus: the guilty act. ie. Physical performance of committing a criminal act done voluntary.
R vs Potsik 1973 - possession of money not one’s own due to another’s mistake does not fulfil actus reus.
Mens Rea: guilty mind ie. There was intention/recklessness/negligence.
R vs Eason 1971 - simply examining contents of another’s bag without forming intent to steal does not fulfil requirement of mens rea

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2
Q

Negligence

A

Person failed to exercise degree of care that reasonable person would have done in same circumstances

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3
Q

Recklessness

A

Person could foresee possibility of harm but acted anyway

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4
Q

Strict liability

A

Offences lowering prosecution’s burden of proof to solely actus reus, ie. Most traffic offences eg. Speeding

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5
Q

Causation

A

Link between act and specific harm sustained; act must be at least substantial cause of crime.

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6
Q

Categories of crime.

SEDDPPP

A

Offences against person - homicide, assault
Offences against sovereign - treason, sedition
Economic offences - crimes against property, white collar, computer
Drug offences - possession, trafficking, cultivation, manufacture, importation
Driving offences
Public order offences
Preliminary - conspiracy, attempt

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7
Q

Difference of sedition and treason

A

Sedition: incite hatred for monarch, gov, constitution
Treason: causing harm or aiding nation’s enemies

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8
Q

Summary and indictable

A

Summary: less serious outlined in Summary Offences Act 1988, heard by magistrate without jury in local court
Indictable: more serious and heard by judge and jury in district or Supreme Court

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9
Q

Prima facie

A

Whether there is sufficient evidence to warrant a case

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10
Q

Parties to a crime

A

Principal in first degree - carries out crime
Principal in second degree - assisting commission of crime (present during act)
Accessory before the fact - assisted in planning crime; not present
Accessory after the fact - helps criminals after they have committed crime. Neither present, nor aware of it beforehand

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11
Q

Factors affecting criminal behaviour

A

Socio economic - poverty, doctrine of differential association: those surrounded by crime more likely to commit crime, self-interest
Genetic
Political - NO WAR March 2003

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12
Q

Types of crime prevention

A
  • situational crime prevention: makes difficult for criminals to commit crime by increasing risk of being caught eg. Surveillance cameras, security guards
  • social crime prevention: focuses on values and discipline systems that influence whether people commit crimes eg, provision of edu, employment, social security
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13
Q

Crime

A

Act or omission that results in harm to society and is punishable by state. Crimes are a reflection of ‘public morality’ at the time and hence, what constitutes a crime differs between societies.

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14
Q

LEPRA

A

Law enforcement (powers and responsibilities) act 2002 provides various powers to police in order to protect society; including ability to detain and question suspects, participate in search and seizures and arrest and interrogate suspects.

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15
Q

Powers of police? SIMED IF

A
  • Search and seizure
  • access to information (COPS)
    interrogation
  • electronic surveillance: tapping phones
  • medical examination: extract and test DNA of suspects, volunteers and people convicted of serious criminal offence
  • detention
  • fingerprints and photographs
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16
Q

Case of Adam Houda

A

case shows how through discretion, requirement of factual basis of suspicion can be overlooked; Houda wrongfully arrested, detained and questioned 6 times in 11 years due to his Middle Eastern background

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17
Q

Media article showing excessive use of police powers where rights of community have been compromised

A

“Police spy on web, phone usage, with no warrants” (SMH 2012) - federal governments released figures where agencies have accessed Internet and telecommunication data without warrants more than 40,000 times during 2010-11

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18
Q

Media article where police abuse powers to individuals

A

“Mardi Gras brutality one step too far” (SMH 2013) - although working as primary enforcers of law, there is a risk of police abusing their power thus endangering rights of individuals

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19
Q

Computerised operational policing system (COPS)

A

Allows police to cross-reference details of ‘persons of interest’, including those with criminal history, AVOS, holding gun licence, mental illness, outstanding warrant, victims or suspects.

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20
Q

How does police powers not achieve justice for victims?

A

Detention: anti-terrorism act 2005 (cwlth) permits preventable detention of terrorist suspects for 48 hours with indefinite potentials for extensions - HANEEF: detained 12days

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21
Q

Crimes amendment (consorting and organised crime) act 2012 (Nsw)

A

Allows police to outlaw certain criminal organisations (ie. Bikie gangs) and prevent people from associating with those convicted of serious crimes

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22
Q

Identification legislation amendment act 2011 (Nsw)

A

Requires Muslim women wearing niqab to remove veil for police identification purposes

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23
Q

Why do private citizens choose not to report crime? (Civilian discretion)

A
  • unnecessary hassle
  • loyal to perpetrator of crime
  • feel humiliation or Shame (esp. Sexual assault victims)
  • reporting crime is futile (2006 BOCSAR stats: 90% if reported sexual assaults did not lead to conviction)
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24
Q

How to investigate crime?

A
  • gathering evidence (technology and search and seizure)

- use of warrants

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25
Q

How police has used technology successfully in investigating crime - case

A

R v. Fleming (2007) - Fleming was charged with rape and murdering of Sydney woman; first successful cold case investigation using DNA evidence to prove guilt

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26
Q

Non successful use of technology to gather and assess evidence

A

R v Jama (2008) - wrongful conviction of rape based on DNA evidence alone, presenting miscarriage of justice

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27
Q

Warrant

A

Written authorisation issued by judge or magistrate allowing police to take action which it prescribes

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28
Q

Offenders may be brought before court by:

A
  • information and summons
  • information and (arrest) warrant
  • arrest without warrant
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29
Q

Citizen’s arrest

A

Right and responsibility of citizen’s to arrest those who have committed a felony
Russell Howarth - vigilant Sydney driver arresting illegal Uber drivers since 2014

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30
Q

Bail act 1978 (NSW)

A

Permits defendants to enter into agreement to attend court on a particular date in exchange for freedom during trial process

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31
Q

Remand

A

Detention of accused throughout trial process if bail is denied

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32
Q

Bail amendment act 2002 and 2004

A

Tightened scope in which offender has presumption in favour of bail

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33
Q

Issues with remand

A
  • presumption of innocence
  • time in remand may be extended due to delays in legal systems due to; lack of time management, nature of adversarial system; increasing cases
  • delays result in negative effects such as psychological trauma, witnesses forgetting details, decreased public confidence
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34
Q

What did BOCSAR 2009 stats reveal?

A

Juvenile remand populations have increased by 82% indicating severe lack of resource efficiency in bail system

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35
Q

BOCSAR 2010 stats reveal?

A

Twice as many NSW prisoners held on remand than any other state, reflecting failure of NSW bail system to reflect ethical values held nationally

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36
Q

Anti terrorism act 2005 - advocates and critics and case

A

Allowed for preventative detention of up to 14days or placement under control order for up to 12 months

  • advocates argue govt. has right to limit civil liberties to protect security of majority
  • critics claim changes are violation of individual rights and Australia’s international obligations under ICCPR
  • RvsHaneef 2007; illustrates the law could be easily abused by govt. and law enforcement agencies; Haneef held for 12 days undermining rights as suspect in exchange for potential protection of community
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37
Q

Evidence amendment (evidence of silence) act 2013 - advocates + critics

A

Police able to draw unfavourable inferences when accused wishes to remain silent
A: right to silence only protected guilty
C: right to silence protected defendants from having words twisted by barristers and allowed them to protect fam and friends

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38
Q

Which case established an implied limited right to legal representation?

A

Dietrich vs. The Queen 1992

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39
Q

Local court

A
  • Magistrate - no jury
  • Original jurisdiction for most summary offences and conducts committal hearings for more serious offences seeking to est. Prima facie
  • encompasses coroner’s, children and drug court
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40
Q

District court

A
  • Judge presides over court- jury brings verdict

- original jurisdiction for most indictable offences

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41
Q

Supreme

A
  • judge and jury

- original: most serious indictable offences

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42
Q

Adversarial system:

A

Two sides to a case presenting version of facts to neutral third party, while simultaneously disapproving that of other side (cross examination) - after which jury will render verdict

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43
Q

Inquisitorial system

A

Judges collecting evidence from both sides, examining said evidence and rendering verdict

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44
Q

Issues with adversarial system:

A
  • objective to present and weigh up merits as opposed to ascertaining facts
  • rich > highly skilled legal counsellors
  • sexual assault victims can be relentlessly cross examined > significant psychological harm
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45
Q

Charge negotiation

A

Dealing made between prosecutor and defence counsel prior to trial in which defendant agrees to plead guilty to lesser charge

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46
Q

Difference between burden and standard of proof

A

Burden of proof: responsibility to prove something

Standard of proof: how much proof is required

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47
Q

Complete defences egs? DINCS

A
  • insanity, self defence, necessity, duress, consent
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48
Q

Partial defences PS

A
  • provocation

- substantial impairment

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49
Q

R vs maglovski 2013

A

Rejects controversy about abuse of provocation defence by husbands killing wives who threaten to leave them as seen in R vs. Singh 2009 - Maglovski sentenced to max 20 years in prison

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50
Q

What act est. selections and functions of juries

A

Jury act 1977 (Nsw)

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51
Q

Jury amendment (verdicts) act 2006

A

Majority verdicts of 11-1 accepted as either conviction/acquittal

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52
Q

Reasons for majority verdicts

A
  • minimises chance of expensive retrial
  • incidence of hung juries increased from 3.5% in 1985 to 8%
  • no miscarriages have been noted
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53
Q

Criticisms of majority verdicts

A
  • degrades principle of “beyond reasonable doubt” and presumption of innocence
  • more likely conviction of innocents
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54
Q

Adv & Disadv of juries

A

A:
- 12 more credible than one judge
- community given role in criminal process > decision reflects community values and expectations
D:
- subjective and emotional
- not understand technical evidence and court proceedings
- more easily swayed by convincing barristers
- expensive and time consuming

55
Q

Judicial discretion is outlined under:

A
  • crimes (sentencing procedure) act 1999 (Nsw)
56
Q

Purpose of punishment DRRI

A
  • deterrence
  • retribution
  • rehab
  • incapacitation
57
Q

Advantages of VIS

A
  • use info to judge in sentencing decisions
  • victim providing role in criminal process
  • hearing impact of actions may assist offender in rehab
58
Q

Discretion of court re: appeals - a case

A

R vs Skaf 2004 - original sentence deemed to severe by appellate court raising allegations of injustice for victims of crime who believed perpetrator was escaping retribution

59
Q

Restorative justice and eg.

A

Aims to address causes of criminal behaviour and allow offender to make amends
- circle sentencing: aboriginal offenders brought before circle with magistrate, victims, police, lawyers and local elders > in circle, discussion about offence and ways of rectifying harm done

60
Q

Children (criminal proceedings) act 1987 (Nsw)

A

children under ten may not be charged with criminal offence as law recognises DOLI INCAPAX: children are incapable of forming mental intent to commit crime

61
Q

Children (criminal proceedings) act 1987 (nsw)

A

Outlines operations of children’s court

62
Q

Young offenders act 1997 (Nsw)

A
  • police may issue warnings/cautions to young offenders

- est. alternative of youth justice conferences which offender, parent, victim, victim support and mediator attend

63
Q

Role of discretion

A
  • civilian discretion in reporting crime
  • police discretion on whether to issue warnings, cautions or youth justice conference
  • judicial discretion in granting of bail/determining sentence
  • legal counsel in charge negotiation
64
Q

Compliance and non compliance

A
  • Nature of law

- international law

65
Q

Values and ethical standards

A
  • informing younger gen. Of values held by society > social crime prevention
  • victim’s rights
  • omission of capital and corporal punishment
  • lenient sentences
66
Q

Law reform

A
  • Police powers
  • bail
  • rights of suspects
  • victim’s rights
67
Q

Balance of rights of victims, offenders and society

A
  • community’s right is often balanced over civil rights
  • bail and remand supersedes community’s right to safety
  • cross examination
  • preventative detention > community to safety balanced over right of offender to freedom
68
Q

Legal and non legal responses

A
  • bail and remand
  • reporting of crime, discretion
  • rules of evidence, defences and juries
  • drug court, charge negotiation, guilty pleas, legal aid
  • statutory and judicial sentencing guidelines, aggravating and mitigating factors, VIS
  • diversionary programs
  • sanctions
69
Q

Crimes act 1900 (nsw)

A

Lists criminal offences and prescribes maximum penalties

70
Q

Drug misuse and trafficking act 1985 (NSW)

A

Makes possession, trafficking and other drug offences illegal

71
Q

Case example of civil disobedience

A

March 2003 - two men painted ‘No war’ on the Opera House as a protest against AU sending troops to fight in Iraq. charged and guilty of malicious damage

72
Q

Children (protection and parental responsibility) act 1997 - is an example of situational crime prevention

A

Gives police power to take children home if they are at risk of being involved in anti-social behaviour

73
Q

Discretion

A

Choice to do/not do something

74
Q

Detention of Mohammed Haneef

A

In July 2007, Haneef was detained for 12 days without charge, undermining his indiv rights of liberty and freedom (protected under ICCPR 1966)
Inquiry released in Dec 2008 found he was indeed wrongly charged.

75
Q

What does ICCPR 1996 embody re: Anti Terrorism Act 2005 (No.2)

A

Embodies principle that people’s Liberty should not be restricted if there is no criminal charge against them

76
Q

Rights of suspects?

A

> re: privacy - don’t have to elet police search them/premises w/o warrant
right to communication: contact friend/fam/solicitor/relative
right to lawyer - only limited as est. by Dietrich v Queen 1992
illegal evidence: confession cannot be used in court unless made voluntarily

77
Q

Effectiveness of criminal invest. Process as means of achieving justice

A

> presumption in favour of bail
inadmissible evidence
right to silence
wide powers to arrest people

78
Q

InEffectiveness of criminal invest. Process as means of achieving justice

A

> Detention of Mohammed Haneef 2007
“Policy spy on web, phone usage, with no warrants” (SMH 2012)
Mardi Gras brutality one step too far (SMH 2013)
BOCSAR stats 2006 - 90% of reported sexual assaults do not lead to convictions
Evidence Amendment (Right to silence) act 2013
no absolute right to lawyer

79
Q

Why do we have a system of appeals?

A

Enforced to ensure effects of wrong decisions made by judges/magistrates exercising discretion is minimised

80
Q

Features of adversarial system

A
  • strict rules of evidence
  • presumption of innocence
  • witnesses examined orally
  • past record of accused may only be examined during sentencing
81
Q

Implications of charge negotiation - accused, victim, community 2 each

A

Accused
> pressure to plead guilty to something he/she may not be found guilty of in hearing and perhaps reduces chance in achieving justice
> lighter sentence than really deserves
Victim
> saves from ordeal of giving evidence and being cross-examined
> lighter sentence = feels offender not punished sufficiently
Community
> Efficient, quick and inexpensive
> lighter sentence = more likely to reoffend = greater danger

82
Q

Legal aid

A

Provision of free/cheap legal services to people on limited incomes > helps reduce inequalities of access to legal system

83
Q

To receive legal aid, one must pass:

A 
Means test (disposable income less than specified amount) 
Merit test (good chance of winning case) 
Jurisdiction (granted only for certain types of legal matters)
84
Q

Rules of evidence

A
  • hearsay
  • opinion
  • relevance
  • character evidence
85
Q

Why mental illness achieves justice

A
  • person should not be held responsible for something they did not understand was wrong
  • testing is rigorous
  • defendant often placed in mental institute
86
Q

Mental illness

A

Defence based on unsound mind.

R v Porter (1936): porter poisoned son however suffering from depression = not guilty

87
Q

Self defence

A

Admits to crime knowing it was wrong but claims he/she was acting to defend him/her/someone else

88
Q

Case of self defence

A

Lena Kasparian case (2012): Sydney woman found not guilty for murder of husband > husband slapped her and hit her over head with steel saucepan then taunted her to stab him.

Aunt of deceased; “I don’t think the justice system is fair. It needs to be changed”

89
Q

How does self defence achieve justice?

A

> people should be able to protect themselves + fam

90
Q

Necessity

A

Necessary act to prevent serious danger

91
Q

Duress

A

So frightened by threats of death/bodily harm that he/she committed act anyway

92
Q

Case of duress

A

Chippendale petrol attack in 2012: Sydney youth doused a woman in petrol and set her alight has had maximum term of 6years reduced to 3 in employing defence of duress > from cousin who threatened to harm him + fam

93
Q

Provocation

A

Aggravated by victim that caused the action of murder due to loss of control in defendant
- abolished in TAS 2003, VIC 2005

94
Q

Other factors in proving provocation

A

> battered woman syndrome: woman kills husband after years of suffering DV (seen in TASHA LEE WRIGHT case 2000)
abuse excuse: in 2 separate cases in 1997, two men were acquitted of murder on defence that they have suffered abuse/protecting one who had suffered from child abuse
homosexual advance defence
“A gay advance is no excuse for murder” - SMH 2011

95
Q

How does provocation achieve justice

A

> doesn’t completely exonerate offender

> reduces liability for women suffering years of abuse

96
Q

Substantial impairment

A

Accused was not in complete control of mind when committing the murder

97
Q

Effectiveness of criminal trial process in achieving justice

A

> appeals
charge nego saves victim ordeal of. Giving evidence + cross examination
legal aid
defences (R v Nam 2006 - clear case of provocation)
majority verdicts

98
Q

Ineffectiveness of criminal trial process in achieving justice

A 
> charge nego 
> Evidence amendment (evidence of silence) act 2013 
> defences (Provo) 
> majority verdicts 
> adversarial system 
> legal representation
99
Q

Criminal investigation process PRIRAB

A 
> police powers 
> reporting crime 
> investigating crime 
> arrest and charge, summons and warrants 
> Bail and remand 
> rights of suspects
100
Q

Criminal trial process

A
  • court jurisdiction
  • adversarial system
  • legal personnel
  • pleas and charge nego
  • legal rep and aid
  • burden + standard of proof
  • use of evidence
  • defences to criminal charges (DINCS, Provo + SI)
  • role of juries
101
Q

Sentencing and punishment

A
  • statutory and judicial guidelines
  • purpose of punishment
  • factors affecting sentencing decision
  • role of victim in sentencing
  • appeals
  • types of penalties
  • alt methods of sentencing
  • post-sentencing considerations
102
Q

Young offenders

A
  • age of criminal responsibility
  • rights of children during interrogation or arrest
  • children’s court
  • penalties for children
  • Alts to court
103
Q

Crimes (sentencing and procedure) act 1999

A

Governs way judges and magistrates determine sentences

104
Q

Guideline sentence

A

Judgement given about sentence for part. Crime and provided under the Crimes (sentencing and procedure) act 1999 (nsw)

105
Q

Mandatory sentencing

A

Part. Sentence for part. Crime

Eg. 8 year minimum sentence passed in NSW (feb 2014) for alcohol fuelled violence

106
Q

Purposes of punishment

A
  • deterrence
  • retribution
  • rehabilitation
  • incapacitation
107
Q

Aggravating factors

A
  • violence/threat of violence
  • planned
  • age and disability of victim
  • relo of trust
  • prior crim record
108
Q

Mitigating circumstances

A
  • past good record
  • good character
  • surrounding circumstances (provo)
  • guilty plea/remorse
109
Q

VIS

A

Outlines full effect of crime on victim

110
Q

+ and - of VIS

A

ADV.

  • victim role in court process
  • assist rehab of offender
  • Ve
  • embarrassing and upsetting - cross examination
111
Q

Traditional penalties

A
  • no conviction recorded
  • fines
  • cautions
  • bonds
  • suspended sentences
  • probation
  • criminal infringement notice > 32% overdue for payment in June 2008 (SMH 08) > not as effective as deterrent however is quick and saves police + court time
  • community service order
  • home detention
  • periodic detention
  • forfeiture of assets
  • imprisonment
112
Q

Diversionary programs

A

Hopes to rehab offender
> Drug Court: rehab offenders so they are no longer reliant on drugs
> traffic offenders program (TOP): 8 lectures over 7 weeks where a compulsory assignment must be completed for each lecture > completion of program taken into account when offender returns to court for sentencing
> Magistrates Early Referral into Treatment program (MERIT): drug rehab (~3months)

113
Q

Effective of different penalties

A

> inexpensive, quick, appropriate for minor offenses, may deter( no conviction, caution, fine)

114
Q

Alt methods of sentencing

A
  • diversionary programs

- restorative justice programs (ie circle sentencing)

115
Q

Post sentencing considerations

A
  • security classifications: based on offence + length of sentence
  • protective custody: separated from prisoners whom they fear
  • parole: leave prison before full sentence
  • preventative and continued detention
  • sexual offenders registrations > implications > Ryde community in 2009 rejected sexual offender living there
  • deportation
116
Q

Effective of sentencing and punishment as means of achieving justice

A

> stat and judicial guidelines = limits on judicial discretion
consideration of aggravating and mitigating circumstances
VID
appeals
various penalties
circle sentencing
protective custody

117
Q

Ineffectiveness of sentencing and punishment in achieving justice

A

> sexual offenders rego
preventative detention
protective custody
punishments don’t seem to deter

118
Q

R v LMW 1999

A

Jury found accused not guilty as although he was 10, psychiatrists and teachers who gave evidence found he was at least 2 years younger than age mentally

119
Q

Issues surrounding age of crim responsibility

A
  • principle of Doli incapax is old fashioned
  • modern children have compulsory education so develop faster both mentally and physically
  • children getting away with crime - adults get acquitted as well
120
Q

Rights of children when being questioned/arrested

A

Extra protections contained within LEPRA 2002 and includes:
> parent/guardian must be notified if child taken into custody
- tell child of rights and assisting them in exercising these rights
- not to be kept in same cell as adults
- may not photograph/take fingerprints/bodily sample w/o court order

121
Q

Why children treated differently

A
  • vulnerable
  • not understand consequences
  • greater chance of resuming normal life
122
Q

What act governs children’s court

A

Children (criminal proceedings) act 1987

123
Q

Protections of children’s court

A
  • closed court (public not allowed at hearing)
  • media may attend but may not publish identity of offender
    a conviction not recorded if child under 16
  • direct parents to attend court under CPPR ACT 1997
124
Q

Principles of sentencing outlined in? For children

A
  • children (criminal proceedings) act 1987
    Principles:
    > child to live at home
    > desirable for edu to continue
    -> penalty imposed - no greater than that imposed on adult
125
Q

Penalties and sentencing options for children

A
  • dismissal of charges/ caution
  • fine
  • bond
  • probation
  • suspended sentence
  • control order (ie imprisonment)
  • referral to youth justice conference
126
Q

BOCSAR 2006 stats re: children

A
  • police cautions and youth justice conferences led to sig drop in #of young offenders appearing before children’s court (nearly 1/2 from 16k in 1997 to 8400 in 2005)
127
Q

Youth justice conferences?

A

Introduced through Young Offenders Act 1997 (NSW)
Aim of conference is to come up with apology for victim, reparation of victim, drug/alcohol rehab - involves offender, parent/guardian, victim, supporter of victim + mediator

128
Q

Crimes against int. Community

A

Serbs as wrong by int. Community eg war crimes, slavery, genocide, terrorism
Eg. 9/11 attacks

129
Q

Example of genocide

A

Islamic state fighters may have committed genocide against minority Yazidi community in Iraq

130
Q

Translational crime

A

Occur within state’s legal system but contains int. Element eg. Hostage taking, terrorism, drug trade
Eg

131
Q

UN CONVENTION ON NARCOTIC DRUGS (1961)

A

States narcotics eg heroin are illegal and that states should cooperate to stop global drug trafficking
Eg. In 2005, AFP gave info to Indo about the ‘Bali Nine’

132
Q

Crimes committed outside jurisdiction

A

In int. Waters/airspace and don’t come under jurisdiction of any nation

133
Q

Dealing w/int crime

A
  • int instruments: ROME STATUE 1998 eST. ICC
  • customary law
  • criminal tribunals: ICJ - Nicaragua v USA (1986)
  • sanctions
  • extraditions: AU handed over Servian war crimes suspect, Dragan Vasiljkovix to face allegations of murder (2015)
  • treaties
  • int. Cooperation: 2005 info Bali nine

HSC Legal Studies (4 decks)

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