CRIMMEEEEEE Flashcards
1
Q
Gathering evidence 6
A
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- fined $10000 for recording evidence after the warrant had expired and using a phone tap without a warrant
- Police Commissioner Mick Fuller said the team ‘inherited a bit of a mess’
- Prosecutor Philip Hogan argued that no one is above the law and the magistrate found that he ‘acted illegally’
- The Office of the Australian Information Commissioner (OAIC) called for police to be banned from accessing QR code check in information as contact tracing has been used on at least 6 occasions to solve unrelated crimes in QLD, WA and VIC (2021)
- ‘protecting personal information was central to maintaining public trust and promoting compliance with health orders’ - 2021 SMH, OAIC
2
Q
use of warrants E2
A
- Privacy and Personal Information Protection Act 1998 (Cth), right to privacy and yet LEPRA grants individuals don’t have to be warned of a covert search warrant
- NSW Council for Civil Liberties Cameron Murphy, ‘lead to more police corruption’ and power ‘more powerful than those available to the federal police dealing with terrorism suspects’
3
Q
strip searches 5
A
- 2019-20 45.7% of strip searches conducted in the field resulted in finding an unlawful possession - Law Enforcement Conduct Commission
- conducted disproportionately against FNP 17.8% whilst only being 3.3% of pop nationally - Law Enforcement Conduct Commission
- LEPRA - must conducted in a
private area and if 10-18 in the presence of a guardian or parent - ‘deeply intrusive, disempowering and humiliating’ - Warner, 2020
- ‘my dignity was gone’ when asked to ‘take your pants off, turn around and bend over’ - ABC, 2021
4
Q
bail and remand 6
A
- A14 of Australian Constitution is the right to the presumption of innocence
- The Bail Act 1978 NSW had undergone 52 major amendments in 33 years and there were also many common law precedent set, so extremely complex and confusing led to an inconsistent outcome and therefore inconsistent application of the law
- Simplified in the 2013 Act with a risk-management test considering if the accused person poses an unacceptable risk such as interfering with evidence or contacting witnesses reduced complexity and balanced rights
- Media however pushed for reform as some controversial bail decisions were made which wouldn’t have been accepted under the 1978 Act (tensions in the community)
- A father accused of marrying off his 12-year-old daughter to a 26 year old man (procuring a child for unlawful sex) and giving her sexual advice was recently released on bail. The husband had already been charged with 25 counts of sexual intercourse with a child between 10-14 years. NSW government announced a review of the Bail Act
- Bail Amendment Act 2014 NSW added show cause test for those accused of serious offences which reversed the onus of proof
5
Q
defences 4
A
- R v Singh NSW SC 2012 victim’s sister Jaspreet Kaur contacted Victims Crimes Assistant League - was angry with the reduction to manslaughter and being sentenced to only 6 years on the defence of provocation
- Sparked awareness that the threat of one person leaving a relationship cannot justify murder, ‘she had more than 22 cuts on her body’
- Crimes Amendment (Provocation) Act 2014 redefined the defence of provocation to be extreme provocation achievement of justice for the victim’s family
- ‘Its a historical thing to blame women for the violence that they experience’ - Convenor of NSW DV Coalition Betty Green
6
Q
statutory guidelines - mandatory sentencing 6
A
- 2014 amendment to the Crimes act 1900 (NSW) in sections 25A and 25B which makes the mandatory minimum sentence for assault causing death while intoxicated 8 years imprisonment
- President of NSW Bar Association saying, ‘it isn’t effective, its not a deterrent, it just leads to more people being locked up for no good purpose’
- the were passed in response to a number of highly publicised alcohol-fuelled assaults which caused death in young men particularly
- Hugh Garth was sentenced to 10 years in 2014 for the assault upon Raynor Manalad which resulted in his death - first case under the new laws
- has drawn great criticism for being too rigid and taking away judge’s discretion –> breaking of the separation of powers
- ‘ineffective one-punch mandatory sentences should be scrapped’ - SMH 2020
7
Q
bail and remand 3
A
- alleged drug kingspin Mostafa Balch broke off his ankle monitor and was on the run for more than 2 weeks in QLD
- NSW Attorney-General Mark Speakman ‘poor outcome’ and wanted to investigate whether current bail laws are sufficient and accurate after ‘spate of contentious bail decision’
- Police Minister David Eliot criticised the decision as ‘very questionable and embarrassing’ explaining that bail is a ‘privilege’
8
Q
plea and charge negotiations 6
A
- 23% of early guilty pleas not entered until day of trial - BOCSAR 2017
- new reforms (Tougher and Smarter Reforms 2018) aim to encourage early guilty pleas, BOCSAR’s expected benefits including reduced stress on victims, improved court efficiency, reduced district court backlog, reduced time and money used on courts and police
- it has criticised for the incentives not being high enough, only 10% for up to 14 days before trial and 25% before committal hearing
- Commonwealth Assistant DPP Paul Shaw raises concerns its ‘opaque nature…can generate inconsistent outcomes’ (NSW Law Reform Commission, 2013)
- occurs ‘behind closed doors’ (Barraud, 2012) without the impartiality of a judge of societal representation in the jury
- 6.5% increase in early guilty pleas in the District Court and the number of cases resolved weekly increased by up to 12.3
- it can also ‘spare victims the trauma of having to testify’ (Johns, 2002)
9
Q
consent 4
A
- Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW) amended the Crimes Act 1900 (NSW) to specify that consent to any sexual activity must be communicated by words or actions, not just assumes
- this was effective in reinforcing that consent should be freely given and never presumed
- triggered by Saxon Mullins case where she was raped in an alleyway in Kings Cross and the rapist got off on insufficient laws, she said in response to the reforms, ‘its bringing the laws up to the standard that they should already be at ‘
- the NSW Attorney General Mark Speakman said the reforms were ‘a matter of common sense and respect’
10
Q
parole 6
A
- 43.6% offenders released on parole reoffended and 48.6% of those not released on parole reoffended - BOCSAR 2014
- release of gang rapist sparked outrage and concerns about the safety of society with him returning into the community, ‘our justice system has repeatedly failed to safeguard law-abiding citizens from dangerous criminals’ (Oriel, 2021, The Australian)
- Crown Prosecutor Margaret Cuneen recognised ‘it is important for society that he is reintegrated’ otherwise upon release at the end of sentence without parole he would be deemed an ‘acceptable risk’ (McGowan, 2021)
- State Parole Authority has an obligation to protect the rights of society and its victims such as that it must be ‘satisfied on the balance of probabilities that the release is in the public interest’
- the Crimes (Administration of Sentences) Act 1999 (NSW) lists factors and criteria that must be considered, there is a thorough process of parole before it is granted, such as they shouldn’t release the offender on the anniversary of the offence
- a study conducted by BOCSAR analysing the release of over 50,000 offenders 2010-2019 found that offenders released on supervised parole were 18% less likely to be imprisoned within a year and 18&% less likely to be convicted within a year than those released without parole - 2022 BOCSAR
11
Q
circle sentencing 3
A
- 2020 evaluation conducted by BOCSAR found offenders who participated in circle sentencing were 4% less likely to reoffend in the first year, 9% less likely to receive a prison sentence it took 55 days longer to reoffend
- NSW Attorney General Mark Speakman found it is ‘ensuring greater consistency’, ‘breaks down barriers between the justice system and Aboriginal communities’ and ‘improving follow up of offenders after sentencing’
- According to Cultural and Indigenous Research Centre Australia 2007, in most locations, support services to address underlying issues that are prompting the individual to commit crime, such as drug and alcohol abuse, were inadequate and the number of victims involved minimal
12
Q
jury behaviour 6
A
- role is determine if the burden of proof has been met (beyond reasonable doubt)
- in doing so they must remain fair, impartial, unbiased, open-minded and based their decisions only off the admissible evidence presented in court
- ACT chief justice warned Australia, asking them to stop talking about the alleged rape of Brittany Higgins as there is risk of the jury being tainted and thus the defendant receiving an unfair trial which would result in an unsuccessful conviction
- Bruce Lehrmann’s lawyers are seeking permeant stay of the prosecution, arguing its impossible to receive a fair trial with such profound publicity
- Under the Jury Act 1977 (NSW) the maximum penalty for jury misconduct is 2 years in jail or $5, 000 fine
- In 2019 an Adelaide court quashed a man’s child sexual abuse conviction as the judge was informed one of the jurors visited and took photos of the crime scene, sharing these amongst the other jurors, this is an example of jury misconduct as they can only make their judgements based on the evidence presented in court
13
Q
judge-alone trials 2
A
- BOCSAR evaluation found defendants are less likely to be acquitted by a jury (29%) than a judge (55%)
- R v Gittany 2013 NSW SC was a judge-alone trial as the defendant argued that if it was a jury trial (traditionally longer and thus more expensive) he would run out of money for his lawyer - this reflects right to access and fairness in the legal system but was ultimately found guilty
14
Q
role of the jury 2
A
- BOCSAR found 55.4% of jurors believe beyond reasonable doubt to mean ‘be sure’, 22.9% ‘almost sure’, 12% ‘very likely’ and 10% ‘pretty likely’
- Green v R 1971 HC judge explained that ‘a reasonable doubt is a doubt which the particular jury entertain in the circumstances’ and alluded to the fact that judges shouldn’t explain what beyond reasonable doubt actually means as its up to each juror member to decide individually –> accused doesn’t receive equality, a key aspect of justice, as what the term means is different on a case to case basis
15
Q
preventative and continued detention 4
A
- Crimes (High Risk Offenders) Act 2006 (NSW) establishes that the state must be satisfied to a high degree that the individual being placed on preventative or continued detention poses a significant risk to society
- NSW Attorney General Mark Speakman applied for continued detention for 12 months for child sex offender and murderer Michael Guider after serving 23 years in jail. However, this was rejected and instead he had an extended supervision order imposed upon which includes 55 strict conditions such as that he cannot go near any recreational centres where children may be such as pools and preschools and continuously wear an electronic tracking device
- the victims and families of the victims who were abused have expressed outrage that the continued detention wasn’t granted saying he was being given the ‘freedom that they don’t have’ and his release was ‘more horrendous than you could imagine’
- however continued and preventative detention due threaten the rule of law principle, the presumption of innocence, and so once someone has been convicted and served their sentence they are entitled to be presumed innocent again
