CRIME

Question 1

Meaning of crime

Answer 1

Crime refers to any conduct which violates the right of the community at large and is punishable by a criminal sanction from state.

Criminal law is the area of law that deals with crime and is concerned with the protection of society and aims to provide sanction or punishment to an offender who is found guilty under the court of law.

Question 2

The elements of crime

Answer 2

1. Actus reus: Latin term meaning ‘guilty act’ and refers to the physical act of someone carrying out the crime. The prosecution must prove that someone in fact did commit the crime.

E.g R v Esho: offenders act was caught on cctv cameras and thus, the actus reus was proven.

2. Mens rea: Latin term meaning ‘guilty mind’ and refers to the mental state of the accused. The prosecution must prove that the accused intended to commit the crime with intention, recklessness and criminal negligence.

E.g R v Dean: offender burnt down nursing home with the intention of concealing the fact that he was stealing prohibited drugs.

Question 3

Strict liability offences

Answer 3

Refers to an offence where the mens rea does not need to be proved, only the actus reus. It reduces the level of proof required to achieve a criminal conviction. They do not need need to prove the person intended to commit the crime but that they did in fact commit the crime.

E.g speeding, littering, possession of spray paint cans.

Question 4

Causation

Answer 4

Refers to the link between the behaviour of the accused and the end result. Causation is essentially: did the accused cause injury or harm to a victim or cause a crime.

E.g R v Dean: starting the fire caused the death of 9 people.

Question 5

Offences against the person

Answer 5

Listed under the Crimes Act 1900 (Cth), involves some sort of harm or injury to another individual.

1. Homicide: murder, manslaughter, infanticide etc.
2. Assault: physical, verbal, threats etc.
3. Sexual offences: assault, rape, assault in company, rape.

Question 6

Offences against the sovereign

Answer 6

Listed under section 80.1 of the Criminal Code 1995 (Cth), involves crimes against the sovereign or parliament.

1. Treason: levying war against the state, assisting the enemy, killing the head of the state etc.
2. Sedition: promoting hatred or contempt against the government through slander or force.

Question 7

Economic offences

Answer 7

Listed under the Crimes Act 1900, involves money and property.

1. Crimes against property: larceny, robbery, break& enter.
2. White collar crime: embezzlement, tax evasion, insider trading.
3. Computer offences: hacking, scams, fraud, fake charities, identity theft, modification of data.

Question 8

Drug offences

Answer 8

Listed under the Drug Misuse & Trafficking Act 1985 (NSW), involves prohibited or restricted drugs.

E.g possession, use, cultivation, supply, dealing, trafficking.

Question 9

Driving offences

Answer 9

Listed under the Crimes Act 1900, involves crimes behind a motor vehicle.

E.g speeding, ignoring road rules, DUI

Question 10

Public order offences

Answer 10

Listed under the Crimes Act 1900, involves the disturbance of public morale.

1. Obscene/threatening language & possessing weapons in public
2. Affray: threats and violence in public
3. Riots: groups threatens unlawful violence for a common purpose

Question 11

Preliminary offences

Answer 11

Listed under the Crimes Act 1900, involves offences that precede the commission of a crime; it has not yet been completed.

1. Conspiracy: people jointly conspiring to commit a crime in the future

Question 12

Regulatory offences

Answer 12

Listed under the Crimes Act 1900, involves day to day crimes and strict liability offences.

E.g breaking water restrictions, breaching WHS, travelling with no opal card, breaking fire bans.

Question 13

Summary offences

Answer 13

Found under the NSW criminal code, they are less serious offences, usually in the local court with no jury and less severe punishments.

E.g traffic offences, speeding, littering, graffiti etc

Question 14

Indictable offences

Answer 14

Found under the Crimes Act 1900, these are more serious crimes, decided by a jury and judge in a higher court with more severe punishments.

E.g rape, murder, treason.

Question 15

Parties to a crime

Answer 15

1. Principal in the 1st degree: main perpetrator
2. Principal in the 2nd degree: helped the 1st degree
3. Accessory before the fact: helped plan the crime
4. Accessory after the fact: who helped after the crime

Question 16

Psychological factors as contributors to criminal behaviour

Answer 16

These are the circumstances relevant to the commission of a crime, involving the mental state of an offender.

E.g 49% of criminals have mental illnesses including depression and bipolar (according to the Australian Institute of Health & Welfare).

Question 17

Social factors as contributors to criminal behaviour

Answer 17

These circumstances are instilled by society or one’s upbringing and social construct.

E.g 40% of criminals are affected by illegal drugs pr abusive upbringings (according to the National Institute of Drug Abuse).

Question 18

Economic factors as contributors to criminal behaviour

Answer 18

These are the factors that contribute to the financial motives of offenders

E.g 60% of homeless people have a history of criminal behaviour because they are socioeconomically disadvantaged and want to steal (according to Sydney Criminal Lawyers).

Question 19

Political factors as contributors to criminal behaviour

Answer 19

These are circumstances that stimulate offences against the diversity or state due to opposing political convictions.

E.g BOCSAR found that 100% of terrorism cases in NSW in the past 10 years have been politically driven.

Question 20

Situational crime prevention

Answer 20

Strategies employed by groups to try and stop a crime from happening to make it harder for offenders to strike.

E.g car immobilisers, electric tags on clothes, CCTV cameras.

E.g Dr Robert Carr states “CCTV cameras reduced crimes in very few examples, but help get the convictions.”

Question 21

Social crime prevention

Answer 21

Prevention strategies that attempt to address the underlying factors that may lead to criminal behaviour. Main strategy being education.

E.g Social Liaison Police group whereby police officers go to schools and launch educational programs.

E.g Healthy Harold attempting to counteract social factors leading to crimes from a young age.

Question 22

Police powers

Answer 22

Police are apart of the executive arm of government and they are responsible for the prevention and detection of crime and for the maintenance of public order, as such they are given special powers.

Outlined in the Law Enforcement (Powers & Responsibilities) Act 2002 (NSW).

• Detaining and questioning suspects
• Searching property and seizing evidence
• Reasonable force to carry out duties
• Use of technologies to assist them
• Arrest and interrogate suspects

Question 23

Code of behaviour for police powers

Answer 23

Code of Practice for CRIME (custody, rights, investigation, management & evidence).
This outlines the rights of suspects and enforces the manner in which investigations should be carried out, playing safety as a priority.

NSW Police Force is overseen by the NSW Ombudsman and the Police Integrity Commission

Question 24

Police powers effectiveness evidence

Answer 24

2007 ABC media article: “Sydney crime falling as strategies yield results.”

Details the decline of major crimes by 75% due to increased investigation and police watch in crime stricken neighbourhoods such as Mt Druitt. Police are using their powers to limit crime in the areas that exhibit it the most.

Question 25

Police powers ineffectiveness evidence

Answer 25

2019 SMH media article: “Police admit breaching strip-search laws”, details that mainly found at music festivals, large amounts of non-compliance in LEPRA with police not adequately announcing they are conducting a strip search and not informing suspects of their rights.

2015 TDT media article: “Woman with knife shot dead by police in West Hoxton”, mentally ill lady was capsicum sprayed and then shot in the chest and this can be seen as an abuse of executive powers and non compliance with LEPRA gun laws, police have too much discretion.

Question 26

Reporting crime

Answer 26

Citizens play an indispensable role in bringing the attention of crimes to the state.

Crime stoppers is a national program that encourages crime reporting and in 2015 alone, they received 286,144 calls.

Many people may not report domestic violence and sexual assault cases with 80% going in reported (BOCSAR).

Question 27

Gathering evidence in investigation process

Answer 27

The Evidence Act 1995 (NSW) details ‘lawful evidence’ and protects consumers rights.

E.g documents, fingerprints, DNA samples, tape recordings, video surveillance, witnesses etc

Question 28

Using technology in the investigation process

Answer 28

Technology can be used by police to make the process more time efficient, accurate and is a contemporary investigative tool.

DNA technology can leave room for scientific error:

2020 SMH: “Jury was mislead about DNA” details the case of R v Xie, whereby the prime evidence in the case (DNA sample) was mishandled and resulted in suspect Xie being in custody for 11 years for a crime he did not commit.

Question 29

Search and seizure in the investigation process

Answer 29

Within LEPRA, police are given the powers to search people and seize and detain property.

There can sometimes be abuses of power for no/little reason regarding this power of police.

2020 SMH: “Systematic unlawfulness”, details statistics like 88%of personal searches done by police found nothing. 26,300 children under the age of 18 were searched with 90% finding nothing. This is an invasion of privacy and can go against rights of individuals, especially young people.

Question 30

Warrants within the investigation process

Answer 30

Issued by a magistrate or judge which authorises a police officer to perform a particular act such as making an arrest or searching a property. Warrants are judicial safeguards that protect the privacy of the community.

2020 ABC: “Concerns raised over warrant quota”, details that the police quota for search warrants in Sydney is about 4 times the state average and up 412% from 2018. There is an unnecessary invasion of privacy and the can lead to fear from the community.

Question 31

Summons

Answer 31

A legal document issued by a court or administrative power that is an order for someone to appear before a judicial officer in a court of law.

Question 32

Arrests

Answer 32

An arrest can be made:

1. When someone is caught committing an offence
2. There is reasonable grounds to believe someone has/is going to commit an offence
3. There is a warrant for someone’s arrest

Lawful arrest: reasonable force is used, discretion, rights are informed etc.

Unlawful arrest: abusive/excessive force, no rights are read, young offender is refusing etc

Question 33

Detention and interrogation during the investigation process

Answer 33

Detention: the period in which a suspect is arrested and detained.

Interrogated: formal questioning of a suspect.

Terrorism (Police Powers) Amendment (Preventative Detention) Act 2005: enables police to detain a terrorist suspect for up to 14 days. There is thus a tension between the rights of an individual and the protection of the community.

Evidence Amendment (Evidence of Silence) Act 2013: law has taken away people’s rights to silence during interrogation in NSW. This is unconstitutional and deprives liberties of individuals and suspects.

Question 34

Cautions & rights of suspects

Answer 34

Caution is a statement issued by police gos suspect when they are detained that informs them of their rights under arrest, detention and interrogation. Their rights are usually silence, legal representation etc.

Question 35

Court attendance notice

Answer 35

Legal document that states when and where a person must appear in Court and what charge they must they must answer to

Question 36

Subpoena

Answer 36

This is a particular CAN that requires witnesses to appear in court on a specified date and give evidence.

Question 37

Bail

Answer 37

Temporary release of an accused person who is awaiting trial

Question 38

Remand

Answer 38

Suspect is held in custody whilst they await their trial. They are though to be a risk to society or flight risk. This is sought for repeat offenders, violent crimes, dangerous people, terrorists etc.

Question 39

What are the 3 lower courts?

Answer 39

Local court

Coroners court

Childrens court

Question 40

What is the one intermediate court?

Answer 40

District court

Question 41

What are the 3 superior courts?

Answer 41

Supreme Court

Court of criminal appeal

Land and environment court

Question 42

What is the federal court?

Answer 42

The High Court of Australia

Question 43

Role and jurisdiction of the local court

Answer 43

Legislated by the Local Court Act 2007 NSW

Jurisdiction to hear summary offences

No jury, heard by a magistrate

Low costs, less formalities, no appellate jurisdiction

Question 44

Role and jurisdiction of the Coroners Court

Answer 44

Legislated by the Coroners Act 2009 NSW

jurisdiction to hear cases that involve suspicious deaths

The judicial officer or coroner orders investigations and coronial inquests to find evidence

Question 45

Role and jurisdiction of the Children’s court

Answer 45

Legislated by the Children’s Court Act 1987

Jurisdiction to hear cases dealing with the care and protection children and young offenders

Specialised children’s magistrate presides and there is no media or jury

Question 46

Role and jurisdiction of the district court

Answer 46

Legislated by the district court act 1973 NSW

Jurisdiction to hear indictable offences everything except murder and treason and appellate jurisdiction to hear appeals from local courts

Jury and a judge, verdict and sentencing

High costs, longer trials and increased formality

Question 47

Role and jurisdiction of the Supreme Court

Answer 47

Legislated by the Supreme Court act 1970 NSW

Jurisdiction to hear all indictable offences such as drug trafficking and murder and has appellate jurisdiction to hear appeals from intermediate and lower courts

Jury and judge, verdict and sentencing

Very formal, large costs and timely

Question 48

Role and jurisdiction of the court of criminal appeal

Answer 48

Legislated by the criminal appeal act 1912 NSW

This is an appellate branch of the Supreme Court and has jurisdiction to hear appeals especially from all lower courts

Supreme court level judges preside

Question 49

Role and jurisdiction of the land and environment court

Answer 49

Legislated by the land and environment court act 1979 NSW

Jurisdiction to hear environmental offences such as polluting or dumping and jurisdiction to hear cases involving the interpretation of environmental law

Question 50

Role and jurisdiction of the High Court of Australia

Answer 50

Mandated by the judiciary act 1903 Cth

Jurisdiction to hear cases regarding the interpretation of the Constitution and array of large international law issues and Parliamentary problems

Appellate jurisdiction to hear cases from all states and territories and levels of courts

Question 51

Adversarial system

Answer 51

This system relies on a two sided structure of opposing sides, each presenting its own position with an impartial judge or jury hearing each side and determining the truth of the case

The judge or jury in indictable offences acts as an impartial observer who determines The verdict and sentence based on the evidence and arguments presented by both parties

Question 52

Inquisitorial system

Answer 52

This is an alternate system that occurs when a judge or group of judges investigate the case and called for evidence and testimony themselves there are no to parties

Question 53

Advantages of the adversarial system

Answer 53

Allows both parties to present a sustained case and evidence
HAMER in the conversation stated that by using the adversarial system in Australia “the criminal trial can provide finality for the accused and closure and protection for victims and society”

The rule of law Institute Australia declares that “the adversarial system facilitates one’s access to justice”

The jury and judge act as impartial observers that are not influenced by external factors such as the media

The judge is an Unbiased and impartial observer that hears the facts of the case achieving natural justice and upholding the rule of law

This system is less prone to abuse or bias by the official that is determining the case because judges are carefully selected and trained

Question 54

Disadvantages of the adversarial system

Answer 54

They can sometimes be imbalances in resources skill or knowledge defendants maybe using non-caring legal aid where as the prosecution has access to all kinds of technology and evidence

Unequal accessibility to legal representation

This system can often oblige opponents to contest or fight with each other

It is a slow cumbersome and tedious process, there are many delays when it comes to awaiting trial, hearings and testing evidence

Question 55

The role of judges in the criminal trial

Answer 55

Judges are judicial offices who preside over the intermediate and superior courts. They oversee legal proceedings maintain order in the court room and insure that proper legal procedures of the courts are followed

Judges will make decisions about the points of the law and give instructions to the jury to make sure they understand everything. They are also in charge of creating common-law and handing down sentences.

Question 56

The role of magistrates in the criminal trial

Answer 56

Magistrates are the judicial offices who preside over hearings in the local court. Some may specialise such as children’s court magistrate.

They hear most summary offences and he evidence and determine the facts of the case in order to provide a conviction and or sentence

Question 57

The role of police prosecutors in the criminal trial

Answer 57

Police prosecutors are NSW police force offices who are trained in prosecution, they mostly prosecute summary offences.

They undertake exhaustive investigation and gather all the evidence to provide a case against the accused.

Question 58

The role of public prosecutors in the criminal trial

Answer 58

Public prosecutors are legal practitioners that are employed by the DPP, usually to prosecute more indictable offences. They are essentially the crown or state.

Question 59

The role of the director of public prosecution’s in the criminal trial

Answer 59

The DPP is an independent authority that prosecutes all serious offences on behalf of the NSW government.

They do not investigate the crime, they review cases and work with the police to see if there is sufficient evidence to prosecute. The DPP must consider many factors when deciding to prosecute; Evidence, reasonable jury and the public interest in the case.

Question 60

The role of barristers in the criminal trial

Answer 60

Barristers are legal practitioners that have two main roles to provide legal advice and strategies to the accused and to present That case in court. They appear in all types of courts.

Question 61

The role of solicitors in the criminal trial

Answer 61

Solicitors are legal offices that provide advice to the accused and will assist in the interactions with judges, prosecution and the police. They are commonly seen in the lower courts.

Question 62

The role of public defenders in the criminal trial

Answer 62

Public defenders are barristers that appear in serious criminal matters for an accused that has been granted legal laid. It is a more general legal practitioner that defends the people in court and provide them advice they are appointed to the person.

Question 63

The role of legal aid in the criminal trial

Answer 63

It is the right of an accused to have legal representation in a court room. Legal aid is Das a subsidised legal service provided by the state to those who are socio-economically disadvantaged.

In 1979 the NSW government created the legal aid commission overlooking legal aid applications in the state, under the legal aid commission act 1979 NSW.

Legal aid is normally utilised by the marginalised in Australia such as disabled people, indigenous Australians or poor people.

Question 64

Tests for legal aid

Answer 64

Amendments to the 1979 legal aid act brought about legal aid tests.

In order to be granted legal aid there are A number of tests that an individual must pass:

Means test: the person must show that they are economically disadvantaged or do not earn enough.

Merit test: the person applying for legal aid must prove that they have a good chance of winning his or her case. This can be seen as ineffective because legal aid is supposed to provide assistance where an injustice is likely to occur, and if an individual does not have a good chance of winning, a miss carriage of justice may enter the court room.

Jurisdiction test: legal aid will only be granted for certain types of legal matters, driving offences it is not usually used.

Availability of funds test: aid will only be granted if legal aid NSW believes that they have enough funds to do so. This can be seen as largely ineffective because a person may be denied legal representation due to a state run commission being resource inefficient and lacking funding.

Question 65

Common-law case, the High Court of Australia, legal aid failure

Answer 65

In the case of Dietrich v the Queen 1992, Male accused man was convicted on drug trafficking charges and in his first trial he represented himself. He appealed all the way to the High Court whereby his sentence was reduced and the High Court found that ”the man had no access to the full extent of the law and legal aid had drastically failed”

Question 66

Advantages of legal aid

Answer 66

Marginalised people are allowed access to legal representation

Insures equality before the courts: Applying natural justice and procedural fairness, upholding the rule of law.

Legal aid aims to safeguard peoples rights in the legal system, improve their access to justice and uphold their human rights of the right to a fair trial.

Question 67

Disadvantages of legal aid

Answer 67

In most cases, legal aid is not even free and although small, the defendant still must pay a fee.

The commission is underfunded and does not use their resources efficiently, with many missing out on legal representation.

The legal offices who work for legal aid are often inexperienced and lack dedication in their job and as such, people to not have access to equitable legal personnel.

Question 68

Pleas

Answer 68

Following the charge, the accused is required to enter a plea of guilty or not guilty: a formal statement from the accused.

Question 69

Charge negotiation

Answer 69

A controversial tactic used in criminal proceedings whereby agreements are made between the DPP and the council of the accused: it involves excepting a guilty plea in exchange for benefits such as a smaller sentence.

Question 70

Advantages of charge negotiation

Answer 70

Decreases cost and time delays which is beneficial to all parties.

Increases the rate of criminal convictions and gets criminals off the streets: protecting society.

The conviction of a lesser charge is better than no conviction at all for the state department.

Question 71

Disadvantages of charge negotiation

Answer 71

The crimes may go unpunished all the admitted crime may be insufficiently punished according to community or legal standards.

And accused may plead guilty to a crime they are innocent of: going against the rule of law and procedural fairness.

They can lead to bullying, threatening or manipulation on both parties.

The judge merely only has to consider the charge negotiation and as such, it may be a waste of time and give false hope to all parties.

Question 72

Burden of proof

Answer 72

Central to the criminal justice system Is the principle that a person is innocent until they are proven guilty in a court of law. It is the responsibility of the prosecution to prove in court that the accused has committed the offence that they have been charged with.

This is known as the burden of proof: the burden or onus is on the prosecution to prove the case

Question 73

Standard of proof

Answer 73

The standard of proof in all criminal matters involves the prosecution proving the case beyond reasonable doubt. The standard of proof is a sensually the level of evidence that is required for a party to succeed in a court conviction.

The standard of proof is essential in upholding the presumption of innocence.

Question 74

Use of evidence in a criminal trial

Answer 74

The evidence act 1995 NSW is a law that states all admissible evidence that can be used in the trial process.

This can include documentary, testimony, DNA samples, videos etc

Real evidence is physical evidence that is presented including clothing and blood samples

Documentary evidence original documents such as emails and tape recordings.

Witnesses can be people who witnessed the crime and got a subpoena or expert witnesses such as a psychiatrist, handwriting experts etc.

Question 75

Complete defences in the criminal trial

Answer 75

These are absolute defences that are used to justify the defendants actions and if successfully proven will result in the charge is being dropped or an acquittal.

Question 76

Partial defences to murder in the criminal trial

Answer 76

When a murder has been committed, the accused my claim that there were mitigating circumstances that caused them to carry out the act and may reduce the sentence or charge.

Question 77

Mental illness or insanity as a complete defence in the criminal trial

Answer 77

This defence is available to people when they prove that they were in fact mentally incapacitated when they committed the offence.

This defence relates to the mens rea of the accused, requiring them to claim that they could not have been criminally responsible and they could not form the necessary intent.

2011 SMH: “Mental illness defence for woman who shot father” Details the case of RV Fernando whereby Shamin Fernando used her paranoid schizophrenia as a complete defence to her murder charge, she was then placed in expert control, achieving justice for the rights of mentally ill people.

Question 78

Involuntary behaviour automonism As a complete defence in the criminal trial

Answer 78

This defence also relates to the mens rea of the accused: the argument is that the accused actions were not voluntary or could not have been controlled e.g. the accused had an epileptic fit.

2019 SMH: “Woman with epilepsy jailed after car crash that killed mother and son” Details the case RV Vibert, whereby a Fina vibe it had a complex partial seizure at the time of driving her vehicle and caused to the death of a mother and her son.

Question 79

Honest and reliable mistake of fact as a complete defence in the criminal trial

Answer 79

When the accused actions are proven to be honest and reasonable mistakes they maybe mitigating circumstances because the mens rea cannot be established, however this is a difficult defence to prove.

2020 ABC: “Ruby Princess slammed” Details the Parliamentary Inquiry that was made into NSW Health workers who claim that they brought coronavirus back to Sydney as an “honest mistake”. Its cause 22 deaths and the ABC media says that there will be criminal inductions on these men.

into the three men that made inexplicable mistakes on behalf of NSW health and resulted in bringing coronavirus to Sydney and killing 22.

Question 80

Self defence or necessity as a complete defence in the criminal trial

Answer 80

If the accused can show they carried out a crime in the act of defending themselves or another person and there may be mitigating circumstances.

In the case of RV Zecevic, The defendant was found to use proportional and reasonable force to defend themselves when a dispute over a parking spot emerged, this resulted in the acquittal of the accused.

Question 81

Dress as a complete defence in the criminal trial

Answer 81

Under this defence, the accused must be able to prove that they committed a crime against their own free will, there was an unlawful pressure on them inducing them to do something illegal.

In the case of RV Williamson 1972 the defendant disposed of a body while under the threat of death and the threat was held to constitute duress in a criminal proceeding.

Question 82

Consent as a complete defence in the criminal trial

Answer 82

When in accused can prove that the alleged victim to a sexual assault case consented to the act they may be acquitted, this can be very difficult to prove.

Question 83

Provocation as a partial defence to murder in the criminal trial

Answer 83

This is the defence in which the defendant claims that their actions were a direct result of the other persons actions, which cause them to lose control of their own actions and kill them.

This is often a controversial partial defence as it implies that the victim of a murder had some level of responsibility for the act, that they provoked the accused to an extreme reaction.

In the case of RV Singh 2012, Singh was only charged with manslaughter because he successfully argued provocation as a defence to killing his wife, he said that she threatened to report him to deportation services. Society was in outrage as they learnt that there was a history of domestic violence however he got away with this charge.

In the case of RV camper: 1978, a 15-year-old boy successfully argued provocation after he hit his uncle with a frying pan and killed him. The uncle had just sexually assaulted him and then mocked him about the incident, when dealing with young offenders and the inexperience behaviour of children the partial defence of provocation can be effective in ensuring justice and retribution to victims who may also be offenders.

Question 84

Diminished responsibility as a partial defence to murder in the criminal trial

Answer 84

This defence can reduce the charge of murder to manslaughter when the defendant is able to prove that they suffer from a mental abnormality such as a low IQ or mental retardation.

The New South Wales corrections health service states that 74% of NSW prison inmates suffer from a mental abnormality and pleaded this defence in courtrooms to attempt to reduce their sentence. This makes society question whether or not this is a scapegoat defence or if this is an ongoing problem that contributes to criminal activity and behaviours.

Question 85

What is the jury system?

Answer 85

The Jury Act 1979 NSW defines a jury as a panel of citizens selected at random from the electoral roll his job it is to determine the verdict in a criminal case based on the evidence presented

A jury is a central part of the adversarial system of criminal law that reflects the historic right of an accused person to be impartially judged by a group of their peers

Question 86

Evidence for and against the jury system in the criminal trial

Answer 86

Paul Mendelle in the 2020 Guardian article titled ‘Juries work best’ states that the system is reliable and the adversarial system is reliant on the impartial societal pic of the jury

During non-compliance: in the case of RV Skaf 2000, the jurors went to the scenes of the crime and spoke to people of interest, this goes against the unbiased jury system and wit errors in and non compliance in the system, the jury system was ineffective in ensuring justice meaning there was a retrial for the gang rapers.

Question 87

Challenging jurors

Answer 87

Both the prosecution and the defence have the right to challenge either the selection of the entire panel of jurors or individual jurors

Peremptory challenges of prospective jurors Occurs when a legal team rejects a juror without needing to provide specific reason

Challenges for cause occur when the legal team reject a juror because they believe that for some reason the person will be prejudiced in the trial for example the jury has been a victim to a similar crime

Question 88

Eligibility for jury duty

Answer 88

Australian citizens aged 18 years or over become eligible to sit on a jury. There are many people that maybe ineligible to sit on a jury such as disabled people, people who cannot speak English, convicted criminals, members of the legal profession and people over 65 years of age.

Question 89

The role of the jury in the court room

Answer 89

Jurors are sworn in before the court case commences, they must act impartially and their role is to:

Listen to the evidence presented in the court

Apply the law as directed by the judge

Come to a verdict as to the accuseds guilt or innocence

Question 90

Juries and the verdict

Answer 90

A jury is responsible for reaching a verdict of guilty or not guilty and presenting that verdict to the court. If found guilty the judge will pass a sentence and he found not guilty the accused will be acquitted.

A jury that he’s unable to reach a verdict is called a hung jury and in this instance the case will be dismissed or a retrial will occur.

Question 91

Advantages of the jury system in the criminal trial

Answer 91

A jury is a cross-section of society and therefore reflect societal values and attitudes

Juries are independent and impartial decision-makers who are not controlled by the judge, legal system or government

Ordinary citizens are given the opportunity to play an active role in the administration of justice

Question 92

Disadvantages of the jury system

Answer 92

Because some people are exempt from serving, the jury is not a true cross-section of society

Ordinary people may not understand complex legal technicalities

When influenced by media or emotion it can be difficult for people to remain completely impartial

The jury selection process and operation of the jury system is time-consuming and costly

Question 93

What is sentencing and punishment

Answer 93

Crimes (Sentencing Procedure) Act 1999 NSW Is a law that sets out sentencing law in NSW, setting up purposes of punishment, the types of punishments etc

Question 94

What are statutory guidelines for sentencing

Answer 94

Statutory guidelines are parliament and acted legislation that sets up the rules and guidelines for judges to follow as they impose sentences in the trial

Question 95

What are judicial guidelines for sentencing

Answer 95

Judicial guidelines are when judicial offices follow the president of decisions made by judges in the past in similar cases, following these decisions and creating common-law

Question 96

What are maximum penalties?

Answer 96

The maximum penalty is set by Parliament and it is the maximum sentence available to a court to impose for an offence: the maximum penalty is really given down.

E.g. the maximum penalty for aggravated sexual assault in company is 25 years to life

Question 97

What is mandatory sentencing?

Answer 97

Mandatory sentencing is the removal of judicial discretion by legislation, by setting a minimum or mandatory sentence for a particular type of offence or type of offender.

They aim to be a harsh deterrent of heinous crimes that are frowned upon by society.

E.g. the mandatory sentence for the coward punch is eight years

Question 98

What is judicial discretion?

Answer 98

Judicial discretion refers to the power of a judicial officer to make a decision within the range of possibilities based on the particular circumstances of a case.

The judge may need to sentence according to the decisions by judges in similar and previous cases.

Question 99

List for purposes of punishment

Answer 99

Deterrence, retribution, rehabilitation, incapacitation.

Question 100

What is deterrence?

Answer 100

A deterrent is something that discourages or is intended to discourage someone from doing something.

Specific deterrence refers to the punishment against an individual offender that aims to deter them and them only from committing a crime in the future.

General deterrence refers to the punishment attempting to make an example of an offender in order to send a message to the rest of the community.

Question 101

What is retribution?

Answer 101

Retribution refers to the punishment that is considered to be morally right or deserved based on the nature of the crime. It is almost like getting revenge on the offender and it is the main
justification for inflicted punishment.

Retribution essentially is, adequately punishing the offender based on the severity of the crime, making them accountable and recognising harm to the victim society and state.

Retributive justice is essential in insuring the upholding of victim rights.

Question 102

What is rehabilitation?

Answer 102

Rehabilitation is an objective of sentencing that is designed to reform the offender so that they do not commit crimes in the future: educating them.

It is with the aim of attempting to altar the views of the offender and eliminating the factors that contributed to their criminal behaviour.

The main aim being to prevent recidivism: habitual or repeated acts of criminal behaviour after having undergone treatment or punishment to deter such behaviour. Essentially this is when an inmate leaves prison and they continue to act criminally.

Question 103

What is incapacitation?

Answer 103

Incapacitation relates primarily to making the offender in capable of committing further offences by restricting their freedoms and liberties.

Sanctions such as home detention, imprisonment and community work are with the aim of incapacitating the offender so that they are less likely to commit crimes in the future.

Many crimes require a large degree of incapacitation such as serial killers getting imprisoned and other offences require limited degrees of incapacitation such as serial drink drivers receiving a cancelled license.

Question 104

What are aggravating factors?

Answer 104

These are circumstances that make the offence more serious And can lead to increased sentence. They usually make the crime less excusable and more appalling in someway.

Defence could have involved violence cruelty weapons threats injury harm damage hate crimes organise crimes etc

The victim could have been vulnerable old young disabled targeted in multiples etc

The offender could have used a position of trust or authority they could be a re-offender they could have past convictions etc

Question 105

What are mitigating factors?

Answer 105

These are factors that make the offence less severe and can lead to a reduced sentence.

The offender is of good character: no prior convictions and community support.

The offender is useful and inexperienced

The offender has shown honest remorse: through the compensation of apologising

The offender was provoked or operated under duress

Question 106

What is the role of the victim in the sentencing process

Answer 106

The victims rights act 1996 NSW Is a law that recognises certain rights of victims and victims families during sentencing.

Their role is to make a victim impact statement which is a voluntary written statement by the victim about the impact that the crime has had on them, allowing the victim and opportunity to participate in the process, detailing physical or psychological harm.

Question 107

Advantages of victim impact statements

Answer 107

They allow the family of the deceased person to express their grief and anger in hope of the core imposing a higher sentence and achieving retributive justice

Question 108

Disadvantages of victim impact statements

Answer 108

They can sometimes persuade the judge to act by emotion and remove the impartiality: going against a procedural fairness and the rule of law

Question 109

What is an appeal?

Answer 109

A person convicted of an offence and sentenced will have the right to appeal the case, that is to apply to a higher court for review of one or more decisions that was made in the lower court.

Appeal against conviction: when the appellant argues that they did not commit the offence of which they were found guilty.

Sentence appeal: these are appeals by the offender against the severity of this sentence or by the prosecution against the leniency of the sentence.

Question 110

Where are the different types of penalties laid out?

Answer 110

Crimes (Sentencing Procedure) Act 1999 (NSW) lists various penalties that can be applied as per judicial discretion and guidelines.

Question 111

No conviction recorded penalty

Answer 111

Did judicial officer can either record the conviction against the offender or pass the sentence with no conviction recorded.

Question 112

Caution penalty

Answer 112

A caution is a formal warning that is used for certain less serious offences as a way to avoid the court system.

Question 113

Fines penalty

Answer 113

These are the most common sentencing option in Australia and it is a monetary penalty imposed on an offender for summary offences.

Question 114

Bond penalty

Answer 114

This is a compulsory condition imposed on the offender for a period of time such as a good behaviour bond. If the offender breaches the bond they will face more serious penalties. Are the conditions of bond may include counselling, rehabilitation programs etc

Question 115

Suspended sentence penalty

Answer 115

This is a serious penalty that is imposed in place of imprisonment on the condition that the offender enters into a good behaviour bond for the same period of time as the initial imprisonment sentence.

Question 116

Probation penalty

Answer 116

Where probation is attached the offender will be placed under the supervision of a probation officer that is appointed by the court. The offender will have to adhere to strict conditions of the bond and they must maintain regular contact with their officer.

Question 117

Criminal infringement notices penalty

Answer 117

A CIN can be issued by police and they allow the police to issue on the spot fines for particular offences along with an infringement notice or warning.

Question 118

Penalty units penalty

Answer 118

I think this has to do with money and fines to the court but I don’t know

Question 119

Community service order penalty

Answer 119

A CSO is a penalty that can be imposed by the court instead of a period of detention, it involves compulsory supervised work in the community. They are a means of punishing and shaming the offender while they spend time making amends in the community.

Question 120

Home detention penalty

Answer 120

Home detention allows the offender to serve their sentence confined to their own home rather than a correctional facility often utilising electronic monitoring.

Question 121

Periodic detention penalty

Answer 121

This order is the strictest penalty for an offender whilst they are still a part of the community. The offender has restricted movement and must attend rehabilitation programs there are many conditions such as strict curfews, electronic monitoring and mandatory rehab programs etc

Question 122

Forfeiture of assets penalty

Answer 122

Under the criminal assets recovery act 1990 NSW a court may order that the money or property obtained through economic offences can be recovered and taken off them.

Question 123

Imprisonment penalty

Answer 123

Imprisonment is the most severe sentence that can be a imposed in Australia and is considered a sentence of last resort as it deprives the offender of the liberties

It involves moving a criminal to a correction facility where they are locked off from society.

Question 124

Diversionary programs penalty

Answer 124

Hey diversionary program is a core program that is set up to divert certain offenders from more traditional criminal processes in the hope that they can rehabilitate.

The programs may include education, medical or psychiatric treatment, physical and mental rehabilitation or social welfare assistance.

Question 125

Circle sentencing as an alternate method of sentencing

Answer 125

The sentencing method is for adults indigenous Australians. The circle courts are designed for those who have committed crimes and it is based on indigenous customary law.

The process involves community members a magistrate and indigenous elders sitting in a circle whereby the crime is discussed and the most appropriate sentence is tailored for the offender, it has the full sentencing powers of the court

Question 126

Advantages of Circle sentencing

Answer 126

It allows the indigenous community to confidently and impact fully have a say on the sentence of someone who has done wrong, community involvement is always appraised

Improve the understanding between indigenous communities the courts the government and society

Circle sentencing reduces recidivism among offenders as the circle component is like family and kinship groups

Question 127

Disadvantages of Circle sentencing

Answer 127

BOCSAR Found that indigenous offenders who had been through Circle sentencing were no less likely to reoffend in the 15 months after their sentence than those who have been sentenced in traditional courts.

Some people see this alternative sentencing process as an advantage for indigenous people with the magistrate and elders can act out of emotion and hope.

Question 128

Restorative justice as an alternate method of sentencing

Answer 128

This is a form of sentencing involving a voluntary conference or communication between the offender and the victim of the crime.

It is with the aim of creating a new harmony between parties and giving the offender a chance to understand the impact that they had on the victim whilst they acknowledge their wrong doings.

Question 129

Advantages of restorative justice

Answer 129

It provides the victim with the opportunity to voice their opinion hurt and confront their offender

It helps the offender see the wrong actions and can aid in rehabilitation and deterrence

Question 130

Disadvantages of restorative justice

Answer 130

It is unclear whether or not restorative justice reduces reoffending

It may also be a very difficult process for the victim to come in contact with the offender especially in sexual assault cases

Question 131

What are post sentencing considerations?

Answer 131

Under the Crimes (Administration of Sentencing Act 1999 NSW The administration of sentences is governed whereby there are many considerations and implications that the judicial officer should take into account

Question 132

Security classification as a post sentencing consideration

Answer 132

The post sentencing consideration of a judge is the question of which security classification correctional Centre should the convicted person be sent to.

It is divided into three security classification: I maximum, medium and minimum. The level of security of the correctional Centre will depend on the seriousness of the crime and their prospects for rehabilitation

Question 133

Protective custody as a post sentencing consideration

Answer 133

This custody is provided in NSW correctional centres to offenders who are vulnerable to attack from other prisoners such as politicians, child molesters, famous people etc

Question 134

Parole as a post sentencing consideration

Answer 134

Payroll refers to the conditional release of a prisoner from custody after the completion of the minimum turn of the sentence

The fundamental purpose of parole is to provide the offender with an incentive for rehabilitation, when in offender is given prospects of parole they are more likely to behave in prison.

Question 135

Preventative detention as a post sentencing consideration

Answer 135

This is an extremely harsh punishment that keeps a person in custody in order to prevent them from causing harm to society in the future.

This is often done with terrorism suspects whereby the police are able to detain an individual for two weeks if they suspect they are linked to terrorism activity, depriving them of their liberties.

Question 136

Continue detention as a post sentencing consideration

Answer 136

This consideration occurs when a person is held in detention after they have served their sentence, it is with the aim of insuring community safety and to facilitate the slow rehabilitation process of serious offenders such as sex offenders.

Question 137

The sexual offenders registration as a post sentencing consideration

Answer 137

Using judicial discretion the judge can register an offender on a state and federal database when they have been convicted of sexual offences. This is with the aim of assisting the police in future cases and keeping offenders accountable, they cannot get a home loan or a job without communicating this information to people

Question 138

Deportation as a post sentencing consideration

Answer 138

Under the migration act 1958 it is stated that a migrant living in Australia who is not a citizen may be deported if they are tried and convicted of a criminal offence

Question 139

What is juvenile justice?

Answer 139

The area of the law that is concerned with young people and the criminal justice. The law treats young people differently because the community recognises that they are inexperienced and vulnerable.

Question 140

Doli incapax

Answer 140

This is a Latin term meaning ‘incapable of wrong’ and it is the presumption that children under a certain age cannot be held legally responsible for their actions and as such, cannot be guilty of an offence.

Question 141

What are the ages of criminal responsibility?

Answer 141

Children under ten:
They can not be guilty of any offence because they can not form necessary intent.

Children 10-13:
The doctrine of doli incapax is a rebuttable presumption so the prosecution can try and argue that the children had intent, but doli incapax still stands and protects the child.

Young people 14-17:
Doli incapax no longer applies and the offender can be found criminally responsible.

Question 142

Questioning of young people

Answer 142

The police have the right to ask a person to identify themselves, asking for their name and address.

The young offender also has the right to ask the police officer for their station and name.

The police have the right to stop someone and question then if they are suspected to be carrying something illegal

Question 143

Young offenders right to a support person

Answer 143

Under section 13 of the Children (Criminal Proceedings) Act 1987 NSW any information that a child gives to the police will be inadmissible in court if there is not a responsible adult present

Question 144

Young offenders rights during searches

Answer 144

Police powers for children are the same as that of adults except when dealing with a strip search

No police officer is able to strip search a person who is under 10 years old.

If they want to strip search some one who is 10-13 they must have a responsible adult present.

If they want to strip search someone who is 14-18, the person must give consent about WHO the responsible adult is.

Question 145

Forensic procedures and young offenders

Answer 145

The police can only take photos, fingerprints or DNA samples of a person who is under 14 if they apply to a magistrate.

Question 146

Children’s court - young offenders

Answer 146

Children’s (Criminal Proceedings) Act 1987 sets out the role of children’s court whereby a specially trained magistrate will preside over the case.

There are many differences:
No judge, single magistrate
Closed court and name suppression
No media
Simplified language 
The child can ask questions

Question 147

Children’s court clinic - young offenders

Answer 147

This is an arm of the children’s court and it’s main function is to make clinical assessments if children and submit reports and findings to the court.

The clinic looks after psychological and social issues of the young person and provides assistance with programs such as mental health, disabilities, drug abuse, violence, sexual assault etc

Question 148

Where are the penalties for children listed

Answer 148

Children’s (Criminal Proceedings) Act 1987

Question 149

Dismissal as a penalty for young offenders

Answer 149

The court can dismiss the charge without punishment

Question 150

Conviction as a penalty for young offenders

Answer 150

The court uses discretion to determine whether a conviction can be recorded but if the person is under 16 a conviction can not be recorded

Question 151

Adjournment as a penalty option for young offenders

Answer 151

The sentencing can be adjourned for up to a year to assess the child’s prospects of rehabilitation

Question 152

Bond as a penalty for young offenders

Answer 152

May issue a good behaviour bond with conditions

Question 153

Fines as a penalty for young offenders

Answer 153

A fine of up to $1100 can be imposed

Question 154

Probation as a penalty for young offenders

Answer 154

They can impose probation for up to 2 years

Question 155

Community service order as a penalty for young offenders

Answer 155

This can be imposed to achieve retribution and deterrence

Question 156

Suspended control order as a penalty for young offenders

Answer 156

This a the same as a suspended sentence

Question 157

Control order as a penalty for young offenders

Answer 157

Most severe penalty, it involves the offender going to a juvenile justice centre for a max of 2 years

Question 158

Youth justice conference

Answer 158

This is a program and measure that is used to divert young offenders from the court system through a conference that addresses the offenders criminal actions and behaviours in a more holistic manner

Question 159

What is a juvenile justice centre

Answer 159

This is the place where a convicted young offender lives out their control order, they aim to provide a safe and humane environment with other things such as counselling and drug rehab centres

Question 160

Sentencing considerations for young offenders

Answer 160

The seriousness of the offence
Mitigating factors
Aggravating factors
Grave adult behaviour
Premeditation and intent
Prospects for rehabilitation 
Prior history
Home life and upbringing

Question 161

Alternatives to court for young offenders

Answer 161

Warnings: official infringement

Caution: formal, recorded statement

Youth justice conferences: big educational conferences

Question 162

What is international crime?

Answer 162

Broad term covering any crime that is punishable by a state, that has international origin or consequences or a crime that is recognised by the global community as punishable

Question 163

State sovereignty and international crime

Answer 163

This raises questions such as who should deal with the crime? What should their punishment be? And what constitutes a crime against the international community?

Question 164

What are the 2 categories of international crime?

Answer 164

Crimes against the international community

And

Transnational crimes

Question 165

What are crimes against the international community?

Answer 165

Collection of offences that are seen as great global concern or danger, they are incredibly serious and are condemned by the international community.

1. Genocide: deliberate killing of ethnic, racial, religious group e.g killing 6 million Jews in ww2.
2. Crimes against humanity: systematic attacks against any civilian population e.g mass murder, torture, enslavement etc
3. War crimes: offences carried out during periods of war and prohibits peace e.g torture of enemy group, military destruction, mass attacks on civically (ALL during war).

Question 166

What are transnational crimes?

Answer 166

These are the crimes that take place across international borders, they have emerged as a result of globalisation and technological advancements.
E.g international fraud, human trafficking, cyber-terrorism etc

They are caused by: desire of criminals, politics, opportunistic desire for financial gain or power.

Question 167

The international criminal Court

Answer 167

The Rome Statute is an international treaty that establishes the international criminal Court with 121 countries ratifying the Rome Statute and thus the operation of the ICC

The ICC has 18 judges that have jurisdiction over the three categories of international crime: genocide, crimes against humanity, warcrimes

The international court has the enforceability to prosecute individual offenders and us achieve justice for the wider global community

Question 168

List the domestic measures used to deal with international crime

Answer 168

The Rome Statute and the Geneva convention

The Australian Federal police

The Commonwealth attorney general’s department

Australian crime commission

The Australian high-tech crime Centre

Question 169

List the international measure used to deal with international crime

Answer 169

International courts and tribunal’s

Extradition treaty’s

Interpol

The United Nations Convention against transnational organise crime

Question 170

The Rome Statute and Geneva convention as a domestic response to international crime

Answer 170

Australia was one of the first signatories to the Rome Statute and has adopted lots of legislation such as the Geneva conventions act 1957.

The legislations that they passed outlaw recognise crimes that are listed in the Geneva convention, Australia has also ratified the ICC into Commonwealth legislation that complies with the Rome Statute.

This is a domestic response because Australia has high compliance with the Rome Statute and Geneva convention and has enacted legislation to combat international crimes.

Question 171

The Australian Federal police as a domestic response to international crime

Answer 171

This is Australia’s Commonwealth police force that is with the aim of protecting Australia’s interests from crime in the global community, The AFP is established under the Australian Federal police act 1979.

The AFP is engaged in a plus Thora of international activities working currently in 25 different countries to assist in international peacekeeping

For example the Jakarta regional cooperation team forms by the Australian Federal police has helped Indonesian police investigate and arrest suspects in relation to the 2002 Bali bombings.

Question 172

The Commonwealth attorney generals department as a domestic response to international crime

Answer 172

This department reports and provides valuable advice on Australia’s compliance with its international obligations and treaties.

The department also oversees the operation of legislation relating to international crimes and provides advice and general information to the public enter parliament on the status of Australia’s efforts.

Question 173

The Australian crime commission as a domestic response to international crime

Answer 173

This is a national statutory body established under the Australian crime commission act 2002.

This body investigates matters of national concern and in coordination with other international law in Forseman agencies aiming to deliver specialist law-enforcement capabilities.

The Australian crime commission also investigates countries to prevent crime and trafficking such as the commission investigating south-east Asia to try and stop heroin importation and human trafficking.

Question 174

The Australian high-tech crime centre as a domestic response to international crime

Answer 174

This crime team was created in 2002 and he’s used to coordinate the fight against technological crimes internationally.

Dissenter closely monitors technological connections with other countries and prosecute international tax crimes such as illegal transferring of money to secret accounts.

Question 175

Courts and tribunal’s as an international response to international crime

Answer 175

The international criminal tribunal was established to prosecute those responsible for the Rwandan genocide that occurred in 1994 this tribunal he is the case give support and provides advice.

The international criminal Court is another international tribunal launched in 2002 that investigate and prosecute a number of international criminals.

Question 176

Extradition treaty is as an international response to international crime

Answer 176

Extradition treaty is our agreement made between two countries where one country legally surrenders a suspect to another criminal jurisdiction so that they can face charges and be sentenced.

It is a bilateral agreement.

Question 177

Interpol as an international response to international crime

Answer 177

The international criminal police organisation is the worlds largest police organisation and it has 188 nation state members.

This organisation is a combination of many police force workers that work to investigate and make arrests on a wide range of international crimes such as terrorism, corruption and human trafficking.

Question 178

The United Nations Convention against transnational organise crime as an international response to international crime

Answer 178

This is regarded as the main instrument used to battle international crimes, once a country signs the convention they are to ratify a number of laws into their domestic law including the prohibition of human trafficking and slavery, the refusal of migrants and the illicit manufacturing of dangerous weaponry.