topic one: crime Flashcards
what is the meaning of crime?
any act that is punishable by the state
- Crimes Act 1900 NSW
what are the elements of a crime?
actus reus: physical act of commiting the offence
mens rea: person’s intent to commit a offence
what are strict liability offences? examples?
strict liability offences: crimes which require only actus reus to be shown
typically given a Criminal Infringement Notice (on the spot fine)
e.g. traffic offences, selling alcohol to underage people
what is causation?
the relationship between cause and effect, the prosecution must be able to prove causation
what are the categories of crime?
offences against the person, offences against sovereign, economic offences, drug offences, driving offences, public order offences, preliminary offences
what are summary offences?
less serious criminal offences, max imprisonment 2 years
e.g. low range drink driving,
what are indictable offences
more serious criminal offences, 2+ years imprisonment
serious indictable offences: 5+ years imprisonment
e.g. murder
who are the parties to a crime?
principal in the first degree: commits the offence
principal in the second degree: encourages/assists with the cime
for indictable offences
accessory before the fact: assist the principle before the crime is committed
accessory after the fact: not present at the crime scene but aids it
what are factors affecting criminal behaviour?
social factors: relationships, experiences
self interest: gaining satisfcation
political: opposing laws/political order
economic: disadvantaged backgrounds often contribute to higher crime rate
what is situational crime prevention? example?
directed at stopping crimes before they occur
- focused on reducing crime opportunities
e.g. increasing surveillance
what is social crime prevention? example?
addresses the underlying issues in the community which influence criminal behaviour
e.g. youth programs, education
what legislation regulates police powers and what legislation enforces police powers?
regulating: Law Enforcement (Powers and Responsibilities) Act 2002 NSW
enforcing: Crimes Act 1900 NSW
what is discretion?
discretion is the ability to excerise judgement as to how best proceed
when can police arrest?
- under reasonable suspicision
- about to commit an offence
- a warrant has been issued
- breaching bail conditions
what should police tell you when you are arrested?
that you are arrested and what charge you are arrested with
how long can police keep you under detention for?
without charge: up to 6 hours, unless granted a detention warrant: 6hrs+
suspicison of terrorism: as young as 14 years for 14 days, 16 hrs of questioning per day
what is frisk searching?
involves patting down or running of a metal detector, can check outer clothes and pockets
what is strip searching?
only if necessary, serious and urgent
- cannot be done under 10 years of age
- done in private place, by someone of the same sex
- if under 18 yrs: must have a carer present
when must individuals provide information to police?
when driving a car, involvement in traffic accidents, suspected of committing an offence, under 18 and consuming alcohol
what can police seize in public places?
dangerous (weapon), illegal drugs, anything suspected to be stolen, anything to prove a crime was commited
under 18: alcohol, spray paint
with search warrant: anything listed in warrant or connected to the crime
who issues warrants?
warrants are issued by judicial officers
who reports crime?
the public should make police aware of a crime - however, individuals may be reluctant to report crimes
methods: neighbourhood watch program, crime stoppers
what legislation outlines the gathering of evidence?
Crimes (Forensic Proecdure) Act 2000 NSW, Evidence Act 1995 NSW
what are examples of illegally obtained evidence?
evidence arising from unlawful search, recorded conversations without consent, documents obtained by illict monitoring
how can technology be used for investigating crime?
dna, surveillance technology, databases
what are some details about warrants for search and seizure?
last for 3 days, must come under searchable offence, JO must be convinced police have reasonable grounds
warrant for an arrest issued for?
failure of appear in court, to correct a sentence, breach or orders, before a conviction
what are summons?
summons are generally served on the accused
summons are formal documents which tells someone they either:
- have to attend court to provide evidence
- have to provide documents for evidence in court
what is a court attendance notice
a notice telling a person when and where they will appear in court and what charge they are answering to
what is a subpoena
a subpoena is an order requiring a person to attend court or provide documents for court
what is the difference between a summon and a subpeona
a summon is generally served on the accused whereas a subpeona is served on anyone
both are needed for evidence (documents) to be provided or for someone to attend a hearing
what legislation is bail outlined by?
the Bail Act 2013 NSW
what are the three tests of bail?
- the automatic right to release test
- bail does not need be considered for minor offences - show cause test (2015)
- offender must show why their detention is not justified (doesn’t apply for those <18 years) - unacceptable risk test
stage 1: failure to appear at any proceedings, commits a serious offence, endangers the safety of victims, individuals or community, interferes with witnesses or evidence
stage 2: assessing other matters (e.g. criminal history)
what can an accused person be on remand for?
- they have been charged with an offence and are refused bail
- they cannot meet the bail conditions set
- previously released on bail and breached the conditions that were set
what is a caution?
a notice from the police that must have submitted ASAP so the suspect knows the maximum period of detention
when can someone have a support person?
under 18: police cannot do an interview without a support person
over 14: can choose who is the support person
under 14: support person is generally a guardian/parent
what can police obtain if arrested?
fingerprints, palm prints and have your photograph taken (can be destroyed if found not guilty)
police require a court order to photograph a child under 14 years old
to take a dna sample: magistrate/judge’s approval must be granted
what is the nsw hierarchy
same level: local, children, drug, coroner’s
next level: district
next level: supreme
what are some elements of the adversary system?
the judge acts as an impartial referee, there is a jury to determine the standard of proof, follows the commonwealth system in australia, has the concept of precedent, two opposing sides compete against each other to prove their sides and disprove the other side
what is charge negotiation?
negotiating what the accused will plead (guilty or not guilty)
not guilty: the accused can enter a plea of guilty before or during the hearing
guilty: the case goes straight to sentencing (skips a trial/hearing)
what is the committal process?
the committal process occurs before trial for an indictable offence, the defence + prosecution meet
what are early guilty pleas?
early guilty pleas limit the sentencing discount of up to 25%, reduces discretion of the judge and increases consistency
before commital in the local court: 25%
up to 14 days before the first day of trial
what are the four tests for legal aid?
jurisdiction test: if there is legal aid avaliable for that jurisdiction of law
means test: looks at income and assests
- if eligible, look at how much contribution you can pay
merit test: chances of winning your case
avaliability of funds test: if there are funds avaliable to supply legal aid
who has the automatic right to legal aid
children
what is the burden and standard of proof in criminal proceedings
burden: on the prosecution
standard of proof: beyond a reasonable doubt
what are the complete defences
for indictable offences
mental illness, self-defence, duress (only for accessory), necessity and automatism
what are the partial defences
only applies for murder
excessive self-defence, extreme provocation and substantial impariment of responsibility
