CRIME Flashcards
Elements of crime, define, cases.
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
Negligence
Person failed to exercise degree of care that reasonable person would have done in same circumstances
Recklessness
Person could foresee possibility of harm but acted anyway
Strict liability
Offences lowering prosecution’s burden of proof to solely actus reus, ie. Most traffic offences eg. Speeding
Causation
Link between act and specific harm sustained; act must be at least substantial cause of crime.
Categories of crime.
SEDDPPP
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
Difference of sedition and treason
Sedition: incite hatred for monarch, gov, constitution
Treason: causing harm or aiding nation’s enemies
Summary and indictable
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
Prima facie
Whether there is sufficient evidence to warrant a case
Parties to a crime
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
Factors affecting criminal behaviour
Socio economic - poverty, doctrine of differential association: those surrounded by crime more likely to commit crime, self-interest
Genetic
Political - NO WAR March 2003
Types of crime prevention
- 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
Crime
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.
LEPRA
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.
Powers of police? SIMED IF
- 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
Case of Adam Houda
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
Media article showing excessive use of police powers where rights of community have been compromised
“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
Media article where police abuse powers to individuals
“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
Computerised operational policing system (COPS)
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.
How does police powers not achieve justice for victims?
Detention: anti-terrorism act 2005 (cwlth) permits preventable detention of terrorist suspects for 48 hours with indefinite potentials for extensions - HANEEF: detained 12days
Crimes amendment (consorting and organised crime) act 2012 (Nsw)
Allows police to outlaw certain criminal organisations (ie. Bikie gangs) and prevent people from associating with those convicted of serious crimes
Identification legislation amendment act 2011 (Nsw)
Requires Muslim women wearing niqab to remove veil for police identification purposes
Why do private citizens choose not to report crime? (Civilian discretion)
- 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)
How to investigate crime?
- gathering evidence (technology and search and seizure)
- use of warrants
How police has used technology successfully in investigating crime - case
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
Non successful use of technology to gather and assess evidence
R v Jama (2008) - wrongful conviction of rape based on DNA evidence alone, presenting miscarriage of justice
Warrant
Written authorisation issued by judge or magistrate allowing police to take action which it prescribes
Offenders may be brought before court by:
- information and summons
- information and (arrest) warrant
- arrest without warrant
Citizen’s arrest
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
Bail act 1978 (NSW)
Permits defendants to enter into agreement to attend court on a particular date in exchange for freedom during trial process
Remand
Detention of accused throughout trial process if bail is denied
Bail amendment act 2002 and 2004
Tightened scope in which offender has presumption in favour of bail
Issues with remand
- 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
What did BOCSAR 2009 stats reveal?
Juvenile remand populations have increased by 82% indicating severe lack of resource efficiency in bail system
BOCSAR 2010 stats reveal?
Twice as many NSW prisoners held on remand than any other state, reflecting failure of NSW bail system to reflect ethical values held nationally
Anti terrorism act 2005 - advocates and critics and case
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
Evidence amendment (evidence of silence) act 2013 - advocates + critics
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
Which case established an implied limited right to legal representation?
Dietrich vs. The Queen 1992
Local court
- 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
District court
- Judge presides over court- jury brings verdict
- original jurisdiction for most indictable offences
Supreme
- judge and jury
- original: most serious indictable offences
Adversarial system:
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
Inquisitorial system
Judges collecting evidence from both sides, examining said evidence and rendering verdict
Issues with adversarial system:
- 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
Charge negotiation
Dealing made between prosecutor and defence counsel prior to trial in which defendant agrees to plead guilty to lesser charge
Difference between burden and standard of proof
Burden of proof: responsibility to prove something
Standard of proof: how much proof is required
Complete defences egs? DINCS
- insanity, self defence, necessity, duress, consent
Partial defences PS
- provocation
- substantial impairment
R vs maglovski 2013
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
What act est. selections and functions of juries
Jury act 1977 (Nsw)
Jury amendment (verdicts) act 2006
Majority verdicts of 11-1 accepted as either conviction/acquittal
Reasons for majority verdicts
- minimises chance of expensive retrial
- incidence of hung juries increased from 3.5% in 1985 to 8%
- no miscarriages have been noted
Criticisms of majority verdicts
- degrades principle of “beyond reasonable doubt” and presumption of innocence
- more likely conviction of innocents
Adv & Disadv of juries
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
Judicial discretion is outlined under:
- crimes (sentencing procedure) act 1999 (Nsw)
Purpose of punishment DRRI
- deterrence
- retribution
- rehab
- incapacitation
Advantages of VIS
- use info to judge in sentencing decisions
- victim providing role in criminal process
- hearing impact of actions may assist offender in rehab
Discretion of court re: appeals - a case
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
Restorative justice and eg.
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
Children (criminal proceedings) act 1987 (Nsw)
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
Children (criminal proceedings) act 1987 (nsw)
Outlines operations of children’s court
Young offenders act 1997 (Nsw)
- police may issue warnings/cautions to young offenders
- est. alternative of youth justice conferences which offender, parent, victim, victim support and mediator attend
Role of discretion
- 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
Compliance and non compliance
- Nature of law
- international law
Values and ethical standards
- informing younger gen. Of values held by society > social crime prevention
- victim’s rights
- omission of capital and corporal punishment
- lenient sentences
Law reform
- Police powers
- bail
- rights of suspects
- victim’s rights
Balance of rights of victims, offenders and society
- 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
Legal and non legal responses
- 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
Crimes act 1900 (nsw)
Lists criminal offences and prescribes maximum penalties
Drug misuse and trafficking act 1985 (NSW)
Makes possession, trafficking and other drug offences illegal
Case example of civil disobedience
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
Children (protection and parental responsibility) act 1997 - is an example of situational crime prevention
Gives police power to take children home if they are at risk of being involved in anti-social behaviour
Discretion
Choice to do/not do something
Detention of Mohammed Haneef
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.
What does ICCPR 1996 embody re: Anti Terrorism Act 2005 (No.2)
Embodies principle that people’s Liberty should not be restricted if there is no criminal charge against them
Rights of suspects?
> 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
Effectiveness of criminal invest. Process as means of achieving justice
> presumption in favour of bail
inadmissible evidence
right to silence
wide powers to arrest people
InEffectiveness of criminal invest. Process as means of achieving justice
> 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
Why do we have a system of appeals?
Enforced to ensure effects of wrong decisions made by judges/magistrates exercising discretion is minimised
Features of adversarial system
- strict rules of evidence
- presumption of innocence
- witnesses examined orally
- past record of accused may only be examined during sentencing
Implications of charge negotiation - accused, victim, community 2 each
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
Legal aid
Provision of free/cheap legal services to people on limited incomes > helps reduce inequalities of access to legal system
To receive legal aid, one must pass:
Means test (disposable income less than specified amount) Merit test (good chance of winning case) Jurisdiction (granted only for certain types of legal matters)
Rules of evidence
- hearsay
- opinion
- relevance
- character evidence
Why mental illness achieves justice
- person should not be held responsible for something they did not understand was wrong
- testing is rigorous
- defendant often placed in mental institute
Mental illness
Defence based on unsound mind.
R v Porter (1936): porter poisoned son however suffering from depression = not guilty
Self defence
Admits to crime knowing it was wrong but claims he/she was acting to defend him/her/someone else
Case of self defence
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”
How does self defence achieve justice?
> people should be able to protect themselves + fam
Necessity
Necessary act to prevent serious danger
Duress
So frightened by threats of death/bodily harm that he/she committed act anyway
Case of duress
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
Provocation
Aggravated by victim that caused the action of murder due to loss of control in defendant
- abolished in TAS 2003, VIC 2005
Other factors in proving provocation
> 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
How does provocation achieve justice
> doesn’t completely exonerate offender
> reduces liability for women suffering years of abuse
Substantial impairment
Accused was not in complete control of mind when committing the murder
Effectiveness of criminal trial process in achieving justice
> appeals
charge nego saves victim ordeal of. Giving evidence + cross examination
legal aid
defences (R v Nam 2006 - clear case of provocation)
majority verdicts
Ineffectiveness of criminal trial process in achieving justice
> charge nego > Evidence amendment (evidence of silence) act 2013 > defences (Provo) > majority verdicts > adversarial system > legal representation
Criminal investigation process PRIRAB
> police powers > reporting crime > investigating crime > arrest and charge, summons and warrants > Bail and remand > rights of suspects
Criminal trial process
- 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
Sentencing and punishment
- 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
Young offenders
- age of criminal responsibility
- rights of children during interrogation or arrest
- children’s court
- penalties for children
- Alts to court
Crimes (sentencing and procedure) act 1999
Governs way judges and magistrates determine sentences
Guideline sentence
Judgement given about sentence for part. Crime and provided under the Crimes (sentencing and procedure) act 1999 (nsw)
Mandatory sentencing
Part. Sentence for part. Crime
Eg. 8 year minimum sentence passed in NSW (feb 2014) for alcohol fuelled violence
Purposes of punishment
- deterrence
- retribution
- rehabilitation
- incapacitation
Aggravating factors
- violence/threat of violence
- planned
- age and disability of victim
- relo of trust
- prior crim record
Mitigating circumstances
- past good record
- good character
- surrounding circumstances (provo)
- guilty plea/remorse
VIS
Outlines full effect of crime on victim
+ and - of VIS
ADV.
- victim role in court process
- assist rehab of offender
- Ve
- embarrassing and upsetting - cross examination
Traditional penalties
- 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
Diversionary programs
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)
Effective of different penalties
> inexpensive, quick, appropriate for minor offenses, may deter( no conviction, caution, fine)
Alt methods of sentencing
- diversionary programs
- restorative justice programs (ie circle sentencing)
Post sentencing considerations
- 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
Effective of sentencing and punishment as means of achieving justice
> stat and judicial guidelines = limits on judicial discretion
consideration of aggravating and mitigating circumstances
VID
appeals
various penalties
circle sentencing
protective custody
Ineffectiveness of sentencing and punishment in achieving justice
> sexual offenders rego
preventative detention
protective custody
punishments don’t seem to deter
R v LMW 1999
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
Issues surrounding age of crim responsibility
- 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
Rights of children when being questioned/arrested
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
Why children treated differently
- vulnerable
- not understand consequences
- greater chance of resuming normal life
What act governs children’s court
Children (criminal proceedings) act 1987
Protections of children’s court
- 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
Principles of sentencing outlined in? For children
- 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
Penalties and sentencing options for children
- dismissal of charges/ caution
- fine
- bond
- probation
- suspended sentence
- control order (ie imprisonment)
- referral to youth justice conference
BOCSAR 2006 stats re: children
- 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)
Youth justice conferences?
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
Crimes against int. Community
Serbs as wrong by int. Community eg war crimes, slavery, genocide, terrorism
Eg. 9/11 attacks
Example of genocide
Islamic state fighters may have committed genocide against minority Yazidi community in Iraq
Translational crime
Occur within state’s legal system but contains int. Element eg. Hostage taking, terrorism, drug trade
Eg
UN CONVENTION ON NARCOTIC DRUGS (1961)
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’
Crimes committed outside jurisdiction
In int. Waters/airspace and don’t come under jurisdiction of any nation
Dealing w/int crime
- 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
