Crime Flashcards
What is a crime?
An act or omission that causes harm and is punishable by the state
Actus Reus
The physical ACT of the crime
Mens Rea
The guilty MIND (intent, recklessness, negligence)
Strict Liability
Offences where you have to prove Actus Reus but not Mens Rea (e.g.- speeding)
Causation
The link between the criminal act and the harm
(COURT CASE- R V Blaue:
Blaue was stabbed, however it did not kill her. But she refused a blood transfusion due to being a Jehovah’s Witness, thus killing her. Blaue ended up being charged for the case because it was ruled that if she had not been stabbed, then she would not have needed the medical procedure.)
Crimes against the person
Crimes involving physical injury to the victim (e.g.- Homicide, assault, sexual assault)
Crimes against the sovereign
Treason: Crimes which break a person’s allegiance to their country (terrorism, selling state secrets)
Sedition: Crimes which incite hatred against country
Economic offences: Crimes involving illegal obtainment of money or objects of material values
Drug Crime
Crimes which involve the obtainment, sale or traffic of illicit drugs.
Driving Offences
Crimes involving motor vehicles which break traffic laws
Public Order Offences
Crimes which disrupt the normal order of society
Preliminary offences
Crimes that occur in the lead up to criminals committing another type of offences (attempt and conspiracy)
Summary offences
Minor crimes which are heard in the local court and can carry a maximum of a 2yr sentence.
Indictable Offences
Major crimes which involves a committal hearing which determines if there is enough evidence for a trial (Prima Facie). Punishments from these offences carry a harsher punishment.
Principle in the 1st Degree
Was the creator of the crime and played the biggest role in its execution
Principle in the 2nd Degree
Was there at the scene of the crime, however, didn’t physical partake in any actions
Accessory before the fact
Someone who knew about the crime before it took place and may have aided in the planning process.
Accessory after the fact
Didn’t know about the crime till after it occurred, but aided in the final stages of it (e.g.- letting them hide at your place)
The SOCIAL factors affecting criminal behaviour?
Who you associate with that influence your attitudes and views about crime
The FAMILY factors affecting criminal behaviour?
Family influences your ethics and moral, either encouraging or discouraging you from criminal behavior. This can also involve genetics.
The ECONOMIC factors affecting criminal behaviour?
People from lower socio-comic backgrounds are more likely to commit crimes with financial benefit.
TERRORISM factors affecting criminal behaviour?
Crimes such as terrorism and assassinations are often motivated by dislike of a particular political opinion
The SELF INTEREST factors affecting criminal behaviour?
Greed for wealth often motivates people to commit white collar crimes
Situational Crime Prevention
Increasing the risk of getting caught (security, CCTV, Security tags) and by doing so it lowers the overall value
Social Crime Prevention
SCP tactics aim to address the underlying reasons that people commit crimes
(80% of prisoner are drug uses)
If more resource were applied to prevention, then we might need fewer police and prisons, and less involvement of the mechanism in between – Crimes in the Community
Reporting Crime
Crimes have to be found or reported before they can be investigated.
Investigating Crime
- Police investigate crime by gathering evidence to strengthen the case against the accused
- 3 ways to gathering evidence: Physical evidence, Oral Evidence and Technological evidence (CCTV or DNA)
Arrests
- In order to detain a suspect, police must first arrest them
Detention
-When you arrest someone, they are detained for questioning
Interrogation
- Questioning a suspect while they are under arrest to gain oral evidence.
Rights of the suspect
- Right to silence, however, when they get to the trial, the jury can find to suspect guilty if they continue their silence. This is under the Evidence Amendment (Evidence of Silence) Act 2013 (NSW)
- Maximum detention period is 4 house, but if they have warrant it can be 12
- Anti-Terrorism Act 2004 (Cth) allows for the detention of those involved or suspected in terrorism for up to 14 days
- Right to call a lawyer
- Right to reason of arrest
Charges
- Charging a suspect means they will face trial for the crime they have been accused of.
- They would receive a summons, which is a legal document telling someone when to appear in court
What are the Police Powers
- Arrest
- Warrants
- Stop, search and seize
- Emergency powers
- Warning, cautions and fines
Bail
When a person is one bail, they are not in jail and are free to live within the community until their court day
- Bail is the conditional release of a person under the Bail Act 1978 (NSW)
Remand
When a person is on remand, they are kept in jail until their court day because they are viewed as a threat to society (a murderer, sex offender etc.)
Original Jurisdiction
The ability for a court to hear a case for the first time
Appellate Jurisdiction
The ability for a court to review matters on appeal from a lower court
Local Court
- Original Jurisdiction (OJ)- summary offense and civil matter up to $100,000
- Preliminary and Bail hearings
- Magistrate (no jury)
Coroner’s Court
- OJ
– Investigates the cause and matter of a person’s death and also investigates unexplained fires and explosions - Presides over by a Coroner (Judge)
Children’s Court
- OJ – Offenders under 18
- Presides over by a Magistrate (no jury)
- closed court setting
District Court
- District Court Act 1973
- Appellate Jurisdiction (AJ) – from lower courts
- OJ – Hears most indictable offences (not murder or treason), civil matters up to $750,000)
- Cases are heard by a Judge and Jury
Supreme Court
- Appellate Jurisdiction
– Lower and Intermediate Courts - Cases are heard by a judge and jury
- OJ – Civil matter over $750,000, most serious indictable offences
Court of Criminal Appeal
- Appellate Jurisdiciton
– Lower, Intermediate and Supreme Courts - Cases are heard by 3 judges (or 5 if it is significant legal issues)
- Matters are decided by a majority verdict
High Court
- Appellate Jurisdiction
– Ultimate for all criminal and civil matters - Have to gain leave to have an appeal heard in the High Court
- OJ – Constitutional matters
The Adversary System
- Inherited from British Common Law, which is a method of organising the Trial Process. Usually, the judge is impartial and the tow opposing’s sides take turn stating their case.
Magistrate
- Alike a Judge
- Presides over local court matters
- Decides the facts of the case and the law applicable
Judges
- Presides over intermediate and superior court matters with a jury
- Gives instructions to the jury
- Hand down sentences
Police Prosecutor
- A police officer trained to prosecute individuals for summary offences, usually only take case in local or children court
Public Prosecutor
- Independent body that persecutes individuals on behalf of the government
- Represent the victim and discretion to whether they take the case
Public Defender
- Independ barrister or solicitor who works with legal aid to represent the accuse in criminal trials.
- Ensure access to justice for those in need
Right to legal representation
- There is no automatic right in Australia to legal representation
- Limited, implied right, which means that legal representation if provided to those cases which they feel would receive an unfair advantage if they did not have the representation.
Who provides legal representation
- Legal Aid: Supplies legal representation to the accused and is a government organization
- Legal Aid decides who gets help through three tests:
1) Means Test – can the offender pay for themselves?
2) Merit Test – Is the case likely to win?
3) Jurisdiction test – Does legal aid cover the area of law?
Pleas
- A formal statement by an accused as to whether they are guilty or not (guilty plea = matter goes to sentencing, Not guilty plea = matter goes to trial after a bail hearing)
Charge Negotiation
- Negotiating to drop charges in exchange for a guilty pleas to less severs charges and penalties
Burden of Proof
- Onus on the party to prove their guilt or innocence in a trial
- Criminal case = Prosecution has burden of proof
- Civil cases = Plaintiff has burden
Standard of Proof
- Level of proof the prosecution has to meet in order for the conviction to be successful
- Criminal = Beyond reasonable doubt
- Civil = Balance of probabilities
Complete Defences
- Mental Illness/ Insanity
- Involuntary Behaviour
- Self Defence
- Duress
- Consent
- Mistake of Fact
Partial Defence
- Provocation
- Substantial Impairment by Abnormality of the Mind
The Role of Juries
- A panel of 12 randomly selected citizens (over 18) who determine the verdict in the criminal trial
- Random cross-section of society to reflect society
- Responsible for listening to the evidence and making a verdict
- Majority Verdict
Witnesses
An individual who saw, know about, or was in some way connected to the crime. The Defence is Examination – in – Chief and the Prosecution is able to Cross-Examine them.
Expert Witnesses
An independent expert who testifies about particular aspects of the evidence (e.g.- forensic expert)
Statutory Guidelines
Statues which impose maximum and minimum sentences. Laws stating the longest and shortest period of punishment an offender must receive
Judicial Guidelines
Guideline regarding the use of precedent. St by judges in the Court of Criminal Appeal. It is not binding and works similar to precedent.
Retribution
- Giving the offender a harsh punishment (proportionate to their offence) to discipline them
- Proportionate to victims suffering = longer prison sentence
Rehabilitation
- Reforming the offender and giving them a chance to get their life back on track
- It is the primary consideration for young offenders = short prison term , counselling or education programs
Incapacitation
- Physically restraining the offender and preventing them from committing further crimes. It also keeps society safe.
- For violent offenders = prison sentence
Deterrence
- Discouraging individuals from committing the same offence.
- Specific: Deters the offender
- General: Deters society
- Harsher punishments deters people from crime
Aggravating factors
Things about the crime, offender or victim that make the crime worse and result in a harsher punishment.
These include: Using a weapon, prior criminal record, being part of a crime ring or victim being vulnerable
Mitigating factors
Things about the crime, offender or victim that make the crime less serious and reduce the offenders punishment
These include: Good prospects of rehabilitation, assisting police or pleading guilty, youth or inexperience or no prior convictions
Victim Impact Statement
- Victims’ Rights Act (1996)
- A written statement describing the emotional impact of the crime on the victim, which is traduced by the prosecution as an aggravating factor
No Conviction Record
Where the judge decides not to give you a punishment or criminal sentence for a minor crime. Generally, for first time offenders.
Caution
The offenders is given no punishment, however, the offence is marked on their criminal record
Fines
Payment of a sum of money, generally for driving offences
Criminal Infringement Notice
On the spot fines with no criminal record
Bonds
The offenders is released into society with condition upon their freedom
Suspended Sentence
A bond, wherein if the offender breaks the bond they are imprisoned for the duration of the bond
Probation
Alike a bond, requiring the offender to attend probation meetings daily or weekly
Community Service Order
An order requiring an offender to undertake a certain number of hours of community service
Home Detention
A punishment wherein the offender is unable to leave their home and their movement are traced using an ankle monitor
Diversionary Programs
Alternative punishment for special offenders such as children or ATSI people
Imprisonment
Placing the offender in prison for a length of time. Always used as a last resort due to its infringement upon the rights of offenders.
Circle Sentencing
- Alternative sentencing method for Indigenous Offender which involve a combination of normal and customary law used to decide on a fair sentence.
- It involves a Magistrate, Police Prosecutor, the Victim and Indigenous Elders
Restorative Justice
- A meeting involving the victim, offender and magistrate in which they discuss the crime and the offender makes amends to the victim
- It is often used for young offender which is called a Youth Justice Conference.
Appeals
- Occurs after the sentence has been handed down
- Where the persecution or defense argues that the sentence or conviction was wrong and the case is reheard in a higher court
- The prosecution and defence are limited in the reasons they are able to appeal their case
Post-Sentencing Considerations
Security Classification
Deciding which prison the offender should go to and takes into consideration the severity of the crime and the offenders prospect of rehabilitation (Minimum Security, Medium Security and Maximum Security)
Post-Sentencing Considerations
Protective Custody
Giving offenders extra protection from other inmates while in prison (e.g.- for ex-police, ex-judges or offenders with crimes against children)
Post-Sentencing Considerations
Parole
The conditional release of an offender before the end of their sentence but after the end of their non- parole period
Post-Sentencing Considerations
Preventative Detention
detaining a potential offender before they commit the offence, Usually for potential terror attacks.
Post-Sentencing Considerations
Continued Detention
Adding extra time onto an offenders sentence for the protection of society or the offender (e.g.- Under the Crime (serious sex offenders) Act (2006) NSW and is mainly for sex offenders)
Post-Sentencing Considerations
Sex Offender Registry
Offenders convicted of sex offence are required to update police on their personal details for 8 years after their conviction
Post-Sentencing Considerations
Deportation
Sending offender who are non-citizens back to their home country after their imprisonment.
Doli Incapax
roughly translates to ‘incapable of crime’, meaning young offenders lack mens reas, which means they are incapable of crime
- It is recognized under the UN Convention on the Rights of the Child (CROC). In Article 40, the minimum age of criminal responsible
- Under the Children (Criminal Proceedings) Act (NSW) recognised Doli Incapax under the age of 10
Rights of Children When Questioned and Arrested
- Contact Parents
- Legal Aid
- Adult Presents
- Search and Seize (cannot be striped under 10)
- Silence
- ID rules (0ver 14 to take photos etc.)
- Caution
- DNA
- Arrest
- Detention Period
- Street Questioning
Criticism of The Children’s Court
- Incarceration, particularly in NSW is used too often.
- 68.5% re-offence rate for children who have been to juvenile justice centres in NSW. However, in Victoria where they focus heavily on diversionary programs, sees 83 juveniles in detention each day. With NSW having 390 each day.
Penalties for Children
Bonds
A court can place a child on a bond, protection or suspended control order. Courts trust the child to behave or comply with specific conditions for up to 2 years
Penalties for Children
Youth Justice Conference
Where the court orders the youth to confront victim in a facilitated conference.
Penalties for Children
Fines
Can be up to $1100 and takes into consideration the child’s age and ability to repay it
Penalties for Children
Community Service
A child can be made to do up to 100 hours for under 16 and 150 hours for over 16 in a range of different community services
Penalties for Children
Control Order
The most server penalty (same as imprisonment). It cannot be longer than 2 years (except for grave adult behaviour)
Crimes Against the International Community
- Any punishable crime that has international origins and consequences. These involve the most serious crime that can be viewed as a threat to the international community and is then trialed under international law.
- These types of crimes can include: Genocide, War Crimes or Crimes against humanity.
International crime treaties
- Genocide Convention 1948 – Crimes of genocide
- Geneva Convention 1949 – War crimes
- Rome Statute 2002 – home of crimes against the international community.
- Extradition Treaties – sending criminals of war back home to be prosecuted.
Domestic responses to international crime
1) Ratifying International Law (e.g.- ICC Act 2002)
2) Extradition Treaties (e.g.- Treaty between Aus. & Croatia + 130 others)
Transnational crimes
- When organised crime occurs over international boundaries, who’s law applies? (e.g.- drug trafficking, human trafficking and illegal arms trading)
