Table of Contents
The Nature of Crime
- A crime is an act (or lack of an act) against the community, punishable by a recognised criminal sanction upon proof of guilt in a criminal proceeding.
- Many crimes are dependent on the jurisdiction and society they occur within, depending on cultural values and beliefs.
- For example, many countries still ban homosexuality (punishable by death in some countries1), while others have specific legal protections regarding discrimination against LGBT people.
- Criminal justice systems serve to redress an injustice against both individuals and the community, based on shared values.
- Crimes tend to fall under one of 3 categories:
- Voluntary Acts are acts which were performed without the requirement of external pressures (e.g. punching someone).
- Involuntary Acts are acts which were performed unintentionally.
- Omissory Acts (also known as Acts of Omission or Omissions of Duty) are where an act was expected or required to be performed, but was not (e.g. a missed safety inspection)
The Elements of a Crime
- The prosecution must demonstrate and prove guilt beyond a reasonable doubt (standard of proof) for an indictable offence.
- The term “onus of proof” refers to the fact that the prosecution is responsible for proving guilt, and that the defendant (person who was accused) has no obligation to demonstrate their own guilt. In other words, the burden of proof is on the prosecution.
- Latin for “guilty act”.
- Refers to the physical action of commiting a crime.
- This is often the easiest part to prove (CCTV, witness testimony, and physical evidence can easily be used).
- Latin for “guilty mind”.
- Must prove any of the following:
- Full intention
- Full Knowledge
- Criminal Negligence
What do these terms mean? Click here to find out.
- Full Intention just means that a person planned to engage in that action, or would have expected to engage in that action should that situation arise.
- For example, a person breaks into someone’s house while the resident is away over Christmas. The person is considered to have full intention, because they would have likely scouted the house beforehand, and/or known that the residents would be away. Therefore, the person must have had an intention to break into the house.
- Full Knowledge is where a person was aware that an event would occur.
- For example, a person arms a time bomb in a public place, but the bomb is defused by police before it explodes. However, that person knew that, in the “ordinary” or “expected” course of events, their actions would cause harm in the future. The fact that the bomb was defused is not defensible, because the intention of the person was arming a bomb knowing that it would cause harm.
- Recklessness is where a person is aware of a substantial risk in performing an action, but chooses to take that action anyway.
- For example, driving while under the influence of alcohol is known to be a highly risky action, so someone who is driving drunk and hits someone is likely to have their actions considered reckless.
- Criminal Negligence is where a person neglects to fulfil their obligations (i.e. duty of care), resulting in harm to someone else.
- For example, a parent leaves their child in a closed car. The child dies of heatstroke. The parent is considered to have been negligent, because they failed to fulfil their duty of care to the child by leaving them in a dangerous situation.
- Full intention is usually considered the “worst” type of intent, in that you are more likely to recieve a longer sentence if full intention is proven. Negligence is usually the shortest sentencing. However, full intention and full knowledge are often the most difficult to prove, as you usually need a close relationship or direct confession, while negligence and recklessness can often be proven by the nature of the action itself.
R v Thomas Sam v Manju Sam (2009, NSW Supreme Court)
The victim (a nine month old girl) passed away, after her parents failed to provide conventional medical treatment for her serious eczema
The court found that the risks related to the young girl’s condition would have been obvious to any reasonable person, and that as educated adults, her parents should have recognised these risks and sought medical treatment
Because they failed to do so, the parents were found guilty of manslaughter and imprisoned
This is an example of ‘criminal negligence.’
Topical example? In my post? Never /s
- The prosecution is responsible for demonstrating that the accused’s actions caused the offence or harm (this is part of Actus Reus).
Strict Liability Offences
- Reserved for less serious crimes, resulting in no required court attendance.
- Mens rea is not requires, only actus reus (SLO’s only occur for crimes where you are “caught in the act”).
- Examples include traffic/road offences and graffiti.
- Sometimes there is a court defense if the defendant can prove that the act was an “honest and reasonable mistake”.
- Advantages include that they are easy to enforce (e.g. on-the-spot fines), and are equal for everyone.
- Disadvantage is that because the cost is consistent (typically only a fine), they disproportionately harm lower-income people.
Case Study: R v Munter (2009)
The accused, Todd Munter, punched and kicked a 66 year old victim, following a dispute over water restrictions.
The victim later died of a heart attack as a direct result of the blows inflicted by the accused.
The accused was convicted of manslaughter and imprisoned.
Causation can be established due to the link between the assault and the death of the victim.
Categories of Crime
|Offence against the person||Physical injury to the victim.||Intent to cause harm or injury, maily covered by the NSW Crimes Act (1900). Examples include homicide, murder, assault, and sex offences.|
|Offences against the sovereign||Undermining the government/nation.||Includes political offences against the country or PM, resulting in the safety of the public being compromised. Examples include sedition, treason, and terrorism.|
|Economic offences||Illegal obtainment of money/objects of monetary value.||Actions resulting in the loss or damage of property or money. Examples include larceny, robbery, B&E, embezzlement, tax evasion, and insider trading. Computer crimes (e.g. cyberstalking and hacking) are often included here.|
|Drug offences||Obtainment, sale, use, or traffic of illicit drugs.||Acts involed in the use, possession, cultivating, selling, or importation of banned substances. Primarily legislated by the Drug Misuse and Trafficking Act (1985). Smaller quantities are typically dictated by the Summary Offences Act (1988).|
|Driving offences||Using a motor vehicle to break traffic laws.||No mens rea is required (always a Strict Liability Offence). Minors are still tried in a local court, rather than a children’s court.|
|Public order offences||Disruption of the normal order of society.||Acts that are inappropriate or offensive, or acts that disturb the public’s peace, morals, and safety. Examples include affray (use/threat of violence to cause people to fear for their safety) and rioting.|
|Preliminary crimes||Crimes which occur in the leadup to the commitment of an offence.||Offences occuring prior to a crime being committed. Examples include conspiracy and attempts to commit a crime.|
Summary vs Indictable Offences
|Overview||Less severe offences, always heard in a local court. Appeals go to the district or supreme courts.||Serious offences, heard in a commital proceeding, typically has a larger impact on society.|
|Heard by||Heard by a magistrate (no jury)||Heard by a judge, with a jury present.|
|Judgement||Judgement and punishment dictated by magistrate||Judgement (guilt) determined by jury, punishment determined by judge.|
|Punishments||Good behaviour bonds, fines, max. 2 years prison for first offence, up to 5 years for 2nd offence and onward.||Significant fines, imprisonment.|
|Legislation||Summary Offences Act 1988 (NSW)||Crimes Act 1900 (NSW)|
Parties to a Crime
The principals are any people directly involved and present in the committing of the crime.
The principal in the first degree is the actual perpetrator, and therefore typically recieves the highest sentence as they are considered directly responsible.
The principal in the second degree are any others present, who assisted the principal in the first degree commit the crime.
- Accessories are people who were involved in the crime, but were not present.
- An accessory before the fact is someone who helped plan, but wasn’t involved in the actual execution.
- An accessory after the fact is someone who helps the offender after the crime happened, and is aware that a crime was committed.
Factors resulting in Criminal Behaviour
- Males are more likely to commit crime than females (2:1)
- Crime is a preoccupation of younger individuals (regardless of gender)
- Includes relationships and experiences of the accused, such as family
- Social groups may condition people’s attitudes regarding what’s acceptable
- The environment that person was raised in may condition the way they view crime
- Indigenous youths are 25x more likely to be in detention
- Neglected children are more likely to commit crimes when older.
- Those who grow up with inadequate parents and have been exposed to neglect, too much discipline, parents committing crimes, or no supervision increase the likelihood of committing criminal acts
- Low socio-economic status increases chance of resorting to crime
- Unemployments (14%) tend to result in crime
- Addiction (theft) tends to lead to crime (desperation for money)
- 50% of young offenders are drug or alcohol dependent
- Poor education and lack of skills are often closely related to economic factors.
- Social Prevention can be achieved through improvement of the standards of living in low socio economic communities (but this rarely happens in Australia).
- People from disadvantaged backgrounds are more likely to commit crime than other groups
- Poor education and lack of skills are closely related to economic factors
- Same offenders may view crime as having financial benefit
- Youth represent 14% of all unemployed people
- 50% of young offender - drug/alcohol dependence
- Economic factors present one of the most substantial reasons for the committing of crimes in NSW
- AIC research shows that one-third of male and one-half of female offenders receive a welfare or government payment
- Mental illness can be used as a complete defence
- Accused state of mind
- R v Waterlow (2011) was not found guilty on the ground of mental illness
- Report = 1 in 3 prison entrants have a mental health disorder
Encompasses a person gaining satisfaction from various criminal activities
- e.g. Abuse, monetary gain from theft, committing a crime against a person revenge
Sexual assault can be an example of an offence driven by self interest
becuase the offender aims to extert control and manipulate another person
R v buttrose 2009
White-collar crimes are a good example of greed
- Riots tend to have a political element to their interests
- Terrorism offences = politically motivated as the violence can have explicit political aims
- London riots 2011, G8 riots Brisbane
- Terrorism-related offences have political factors and aims in regards to their criminal behaviour
Situational and Social Crime Prevention Techniques
- Involves making it more difficult crimes by increasing the risk of being caught
- E.g. lock on windows, blue lights in bathroom, lockouts, CCTV
- Main issue: it moves people to a different place or to a different crime, therefore we need social crime prevention to fix issue
- Aim is to make the location where the crime occurs more risky and difficult or less rewarding to the offender
- However, it can move people and criminal behaviour to a different place or cause a different person to commit the crime
- Reduce social factors that are likely to cause a person to commit a crime to target potential offenders
- May occur due to poor parenting, low income family, uneducated, early contact with police, association to criminals or criminal behaviour
- Key is intervention programs/workshops
- Example: Youth on track program targets children 10-14 who would otherwise experience low literacy, neglect and substance abuse
- Issue: costs of programs leads to resource inefficiency
The Criminal Investigative Process
- Police powers in NSW are dictated by LEPRA, the Law Enforcement (Powers and Responsibilities) Act.
|Arrests||The process of officially detaining someone prior to charging them. Reasons for arrest include “reasonable” suspicion, witnessing of a crime, or an arrest warrant.|
|Warrants||Warrants are court issued documents which authorize police to perform an otherwise illegal action (e.g. enter a home without permission).|
|Stops, Searches, and Seizures||Police are allowed to stop, search, and seize items from an individual over 18 if they suspect that person has drugs and/or weapons.|
|Emergency Powers||In emergency situations, police are provisioned additional powers without needing to obtain a warrant (e.g. 2014 Lindt Cafe Siege, police shut down several blocks in the area to ensure safety and containment).|
|Warnings, Cautions, and Fines||Police have the power to issue SLO’s, as well as warnings and cautions, for minor offences (e.g. speeding tickets).|
Changes to Powers
|Topic||Old Law||New Law|
|Move On Orders||LEPRA: police could only move on groups that were intoxicated, the idea being that drunk people were the most likely to undergo disorderly conduct.||Police can now move on a more broadly defined category of groups, including fines for those who refuse (LEPRA 2014 amendment). However, this new law is used to target minorities such as Aboriginal/Torres Strait Islanders, as well as youths, disproportionately.|
|Interrogation of Suspects||LEPRA: Suspects could only be interrogated for up to 4 hours. However, this was rarely long enough to gather evidence for a prosecution.||LEPRA Amendment 2014: Allows police to interrogate for 6 hours, plus timeouts. Young offenders now have the right to the presence of a trusted adult and legal aid.|
|Terrorism||Terrorism (Police Powers) Act 2002: Police were unable to prevent the death of Curtis Cheng in a terrorist attack, and ISIS recruiters were easily able to avoid prosecution.||Terrorism (Police Powers) Act 2016: Suspected terrorists are assumed guilty (preventative detention), suspects can be held for 24 days without charge, and the right to silence is not valid (people who stay silent are assumed guilty under the law). This law is often abused by police to arrest minors and young offenders for minor offences, especially minors who are of Middle-Eastern origin. The presumption of guilt and violation of the right to silence also violate the ICCPR, which is international law enforceable against the NSW government through the ICJ.|
|Domestic Violence and ADVO’s (Apprehended Domestic Violence Orders)||Crimes (Domestic and Personal Violence) Amendment Act: Did not provide adequate protections for victims of domestic violence, 1 woman a week was murdered by a current or former partner.||Crimes (Domestic and Personal Violence) Amendment Act 2013: Police are required to respond to all reports of domestic violence. Police also have extra powers: senior officers can apprehend violent offenders on the spot. However, BOCSAR reported that 50% of ADVO’s (also known as restraining orders) are breached.|
Reporting and Investigation of Crime
- Not all crimes are reported.
- They rely in public and/or victims individuals discretion.
- Statistics are only reported crimes.
- Sexuals assaults and domestic violence incidents are under reported.
- According to BOCSAR, 80% of domestic violence incidents aren’t reported due to fear, uncertainty, fear of reprisal (revenge/retaliation).
- Programs like CrimeStoppers increase level of reporting.
- CrimeStoppers is a national, community-based program that encourages people to report crimes, information or suspicious activity.
- Even though crime is reported, there is role of discretion in exercise of in police powers
- Due to limited resources, it may not be fully investigated by the police → available resources severity, likelihood of success has to be considered
- One mistake in the process can ruin an entire case → eg. search is done illegally without warrant
- Evidence is what the case is based on: physical, electronic, witnesses, etc.
- Evidence must be obtained per the Evidence Act 1995 NSW
- Evidence gathered by unlawful means or has been compromised is considered inadmissible evidence, and cannot be used in court.
- Examples include unlawful searches, hacked accounts, fraudulent messages.
- The law has difficulty to keep up with chnages to allow modern technology to be incorporated as a means of gathering evidence. As a result, a lot of the wording in the Evidence Act is intentionally vague in order to cover future technologies
- CCTV cameras have been used in the successful prosecution of suspects.
- They (along with other surveillance technology) can be used to prove a suspect’s presence at a location, and possibly their actions.
- Use of CCTV and other surveillance technology is covered by the Surveillance Devices Act (2007).
- This act makes it illegal to record private conversations unless all parties are aware and consenting (with specific exceptions).
- The act also allows for warrants to be issued, allowing LEOs to use the devices in the context of an investigation.
- It also provides specific protections and methods on how existing surveillance infrastructure (e.g. a neighbour’s CCTV camera recordings) can be obtained and used by police.
- Used by police since 2015
- Allows for more effective police accountability, but also ensures that offenders’ interactions with and around police are observed.
- Rollout has resulted in a 40% conviction increase.
- Strict procedures must be followed under the Crimes (Forensic Procedures) Act 2002 (NSW)
- In NSW, police are allowed to take forensic samples with a person’s consent
- DNA samples of under 18s require a court order
- Concerns over reliability of DNA evidence has been raised in case of R v Jama 2008
- Jama was wrongly convicted for sexual assault on the sole basis of DNA evidence, after a sample was contaminated due to human error (note that no other evidence was provided by the prosecution, and Jama was able to demonstrate that he was not present at the location).
- Resulted in ‘substansial miscarriage of justice’: all evidence proving Jama was not present was ignored, and the DNA was the only proof of his presence.
NOTE THAT THE FOLLOWING ISN’T TECHNICALLY RELEVANT TO THE COURSE.
Hey so fun facts I found while researching this case: during the appeal, the Victorian Institute of Forensic Medicine demonstrated that there were “significant doubts” about the reliability of the police’s DNA match. On top of that, nobody at the club where the woman was found recalled seeing “a 19 year old man of African appearance”, despite the crowd being primarily middle-aged and Caucasian (the club only admitted people over 28 and CCTV from the club corroborated that he was not there). Evidence was provided by the defendant demonstrating that he was not at the scene, but instead with his father. On top of that, the woman considered to be the victim was only considered because she was found passed out in a bathroom at the club (further testing demonstrated high levels of blood alcohol), and the appellate court heard her testimony that she did not believe she had been raped. And yet, despite 1. not being at the scene, 2. not having matching DNA, 3. not even having a victim, Farah Jama spent 16 months in jail, almost immediately after finishing year 12. Recent reviews of the Australian judicial system have demonstrated that especially in cases involving accused POCs and white victims, evidence against the defendant is considered significantly more than evidence for them, and DNA is the major example of this.
Search and Seizure
- Under LEPRA, police have the power to search and seize property if:
- The person consents, or
- The person is under the influence of drugs/alcohol, or
- The person has a weapon, or
- Police have reasonable suspicion that the person possesses weapons and/or drugs, or
- A court provides a warrant allowing that person or property to be searched.
Use of Warrants
- A warrant is a legal document issued by a magistrate or judge, authorizing a police office to perform a particular act.
- Warrants can be used to authorize arrests, searches, seizures, and/or phone taps.
- LEPRA is the legislation which outlines the way warrants work.
Arrests and Charges
- LEPRA contains the conditions under which an arrest can be made.
- Police must possess a warrant for that person’s arrest.
- The police must state to the person what they are being arrested for in order for the arrest to be legal.
- Arrests can also be made if:
- A suspect is caught in the act
- Police have reasonable grounds to believe that the suspect has commited an offence
- Police have reasonable grounds to believe that the suspect is intending to commit an offence
- The suspect has already committed an offence
Summons and Warrants
- Once a person is charged, they will be issued with a summons to appear in court or, if it is a serious matter, they will be further detained and a bail hearing will be set.
- A summons/court attendance notice is a legal order for a person to appear before a court details the date and court where they must show up.
- If a summons is issued and they do not show up, a warrant is issued for their arrest.
- Subpoena: a legal document requiring a person to attend on a specific date to give evidence.
Bail and Remand
- The temporary release of an accused person awaiting trial, sometimes on particular conditions such as lodgement of a sum of money
- Bail is the authority to be at liberty for an (alleged) offence can be conditional or unconditional
- Relevant legislation is the Bail Act 1978 (NSW):
- Had 85 amendments, showing tension between courts and individuals
- NSW Law Reform Commision called it “unintelligible”
- Bail decisions are based on a case “risk assessment'
- Presumption of innocence was inserted = protected individual rights and the community
- Bail act 2013 (NSW), effective 2014
- Bail can contribute to court delays
- Sitting times
- Time management practices
- Increase in cases
- Effect → ongoing trauma of victims
- Witnesses often forget details
- Alleged offenders not found guilty in remand suffer infringement on freedom
- Further amended 30 days after controversy surrounding high profile accused receiving bail
- Decision to grant bail is not easy
- Difficulty is present in the need to balance the right of individuals to be a liberty and protection of community
- To grant bail is very important in maintaining public confidence in the criminal justice system
- Equally important is the refusal to grant person bail
- Because of the importance of bail and the misunderstanding of the public, bail legislation has been amended 84 times
- Unconditional means the person is released on their own recognisance
- Conditional refers to binding aspects to the persons release, such as wearing tracking devices, reporting to police, surrendering passport, curfews or restrictions on who you can associate with
- It is difficult to obtain bail for certain offences-particularly those offences that are violent and pose a risk to community
- Under Bail Act 1978 (NSW there were growing concerns over “presumption”, “exceptional circumstances”, “young offenders” and the level of crime
- In 2011, attorney-general Greg Smith asked the NSWLRC to review Bail Act 1978
- Review led to Bail Act 2013.
- Remand is the time spent in custody while awaiting trial.
- If guilty, time in remand is removed from the time of sentence.
- The main legal issue of remand is that remand times have significantly increased as bail rates have risen.
- 33% of the state prison population in 2016 were in remand, meaning 1/3 prisoners in NSW have not actually been proven guilty.
- The district courts tend to take between 8 and 12 months to hear a case.
Detention and Interrogation of Suspects
- Suspects have:
- Right to a lawyer.
- The right to silence.
- Max detention 6 hours → 12 with warrants.
- Knowledge of charges.
- Illegal evidence inadmissible (can’t be used/presented to court).
- Confession must be willing.
- Right to communication.
- Rights of suspects: safeguards protect individual rights avoid abuse of police powers.
- There should be a presumption of innocence.
- Individuals have the right to silence.
- Under common law, police caution a suspect and anything say may be used as evidence.
- However since 2013 there have been changes to the right to silence (Evidence Act 1995).
Role and Effectiveness of Law Reform - Example
Evidence Amendment (Evidence of Silence) Act 2013 (NSW):
- Gov response to spate of drive by shootings & Modified right to silence when being questioned for serious indictable offences
The effect of the special caution is that if the suspect refuses to tell police a fact that is later relied on in your defence in court, it may permit the court to use your silence against you.
The judge may allow the jury to draw and “unfavorable inference” if the accused does not mention when questioned by police, something they later rely on in their defence, and therefore the jury is free to assume the defendant has made up a story after being questioned.
This assumption damages both the presumption of innocence and limits the rights to silence while also demonstrating the gradual increase in police powers while limiting individual rights.
|Reduces the length and complexity of some trials, by discouraging defendants from raising new evidence.||Almost guarantees the convictions of defendants who are in a vulnerable state, confused, stressed, or have poor English.|
|Defense attorneys are less able to “surprise” the prosecution with new evidence mid-trial.||Limits the advice lawyers can give when their clients are being questioned, instead encouraging defendants to essentially convict themselves.|
The Criminal Trial Process
Criminal Courts - Definitions
- Jurisdiction: The legal power or responsibility of a court.
- Court hierarchy: The system of courts within a jurisdiction, from lower courts to intermediate and then higher courts.
- Cases usually heard in a Local Court for a preliminary hearing, before proceeding to appropriate court.
- Judiciary Act 1903 (Cth) gives state courts the power to hear federal criminal cases.
- Original jurisdiction: The authority for a court to hear matters for the first time.
- Appellate jurisdiction: The authority for a court to review matters on appeal.
Countries labelled orange or red have capital punishment for homosexuality. https://ilga.org/downloads/ILGA_State_Sponsored_Homophobia_2019.pdf ↩︎