Legal Studies HSC Half Yearlies Notes Crime

1. The Nature of Crime

The Meaning Of Crime

Crime is the act or omission of duty committed against the community at large that
is punishable by the state

The Elements Of Crime

Actus Reus: refers to the physical act of carrying out a crime

Mens Rea: means that the accused intended to commit the crime

Strict Liability Offences

A strict liability offence is one where the prosecution only needs to prove that the
accused carried out the act (actus reus) and is not required to show that the
accused intended (mens rea) in any to commit the crime

Causation

Causation is the link between the behaviour of the accused and the result of
the crime.
This will often be relevant in proving the actus reus and requires the prosecution to
prove a substantial link between the act and the crime

Categories Of Crime
Types of Offences
Offences against the person
Offences against the sovereign
Driving Offences
Drug Offences
Preliminary Offences
Public Order Offences
Economic Offences

Examples
Murder, homicide, assault
Treason and sedition
Speeding, Drink Driving
Possession, use, trafficking
Attempt and conspiracy
Offensive conduct, affray
White collar crime, computer crime and
Property crime

Summary And Indictable Offences

Summary Offences: are less serious offences and will usually incur lesser penalties
than indictable offences. They are heard and sentenced by a magistrate in the
local court
Indictable Offences: are more serious offences such as assault or property
damage. They are heard and sentenced by a judge and jury in the district court

Parties To A Crime

Principle in the first degree: This is the principle offender which is the person
who actually commits the crime. E.g. In an armed robbery, the person is pointing
the gun and takes the money
Principle in the second degree: This is the person who was present at the
crime and assisted or encouraged the principal offender to perform the offence.
E.g. The lookout of the armed robbery
Accessory before the fact: Someone who has helped in planning or preparation
before the actual crime is carried out
Accessory after the fact: Someone who has assisted the principal after the
actual crime is committed. E.g. Driving the getaway car

Factors Affecting Criminal Behaviour

Social: Factors such as upbringing and personal networks can impact a persons view of
the law and respect or lack of it
Genetic
Self interest
Economic
Political

Crime Prevention

Situational: aims to make it more difficult for criminals to carry out a crime
and therefore stops a crime before it is committed. It focuses on the physical
environment. E.g. involves: Alarms, fences, security cameras, lighting
Social: addresses factors that influence an individuals likelihood of
committing a crime, such as poverty and unemployment
o To reduce criminal behaviour as a result of these factors, the government has
introduced youth programs and educational programs to help prevent
crime.

2. The Criminal Investigation Process

Police Powers

The role of the police in the criminal investigation process is to investigate crimes,
make arrests, interrogate suspects and gather evidence

Some of the main police powers include the power to:

Detain and question suspects

Search property and seize evidence (commonly known as search and seizure)
Use reasonable force if necessary to carry out their duties
Use particular technologies to assist an investigation, such as phone taps, surveillance
or DNA samples
Arrest and interrogate suspects
Recommend whether bail should be granted

However the special powers awarded to the police are controversial because they will often
directly conflict with the ordinary rights of citizens
Reporting Crime
Community Programs, such as Crime stoppers, have been established to
encourage people to report information about criminal activity
These programs assist police work and help promote a sense of community
participation in solving crimes
People may be reluctant to report a crime for a number of reasons:
o Reluctance to become involved or have to appear as a witness
o Fear of the consequences if the crime is reported
o Inability to report the crime
o The dispute has already been settled with the offender, such as a brawl or
theft by a person known to the victim
o Perceived time or administrative burden of reporting a crime
Investigating Crime:
Use of technology: It can often be difficult for the law to keep up with changes
to allow the use of modern technology in law enforcement. The technology will need to
be extremely reliable and if there is any doubt about its reliability it risks being
inadmissible in court, or worse, a wrongful conviction

Inadmissible evidence: evidence that cannot be considered by judge or jury in court,

for example, evidence that has been compromised or was obtained by unlawful
means
Search and seizure: the power to search a person or their possession and seize
and detain items that are discovered
Warrant: a legal document issued by a magistrate authorising an officer to
perform a particular act, for example make an arrest, conduct search, seize property
or use a phone tap
Arrest: to seize a person with legal authority and take them into custody
Charge: formal accusation of a person committing a criminal offence
Summons: a legal document that states when and where a person must
appear in court, if they are the accused, the charge to which they must answer
Bail: the temporary release of an accused person awaiting trial, sometimes on
particular conditions such as lodgement of a sum of money as a guarantee
Remand: a period spent in custody awaiting trial at a later date

Detention and Interrogation

Detention: the process of detaining a person for a period of time

Interrogation: the act or process of questioning a subject by the investigating
officer

Rights of suspects

The law must attempt to balance the rights of the accused and the rights of the victims

The rights of the accused

Not be illegally searched

Not to have illegally obtained evidence used against them
To be detained only if arrested

Rights of the Victims

To be informed of the progress of the investigation

To be protected from the accused
To make a victim impact statement

3. The Criminal Investigation Process

Court Jurisdiction
Name of NSW Court
NSW Local Court

District Court of NSW

NSW Supreme Court

Characteristics and Facts of the Court

Lowest court in the NSW Hierarchy
Hears summary offences such as minor
traffic offences
Committal hearings are first held here
Original jurisdiction only
The second highest court in the NSW
hierarchy
Hears more serious crimes e.g. drugs
and assault
Presided over by one judge and a jury
of 12
Has appellate and original jurisdiction
Hears serious indictable offences such
as murder

Court of Criminal Appeal

Presided over by one judge and jury of

12
Hears appeals from the district court
Has original and appellate jurisdiction
The highest court in the NSW hierarchy
Presided over by Panel of 3 judges, no
jury
Hears appeals from the supreme court

The Adversary System

A system of law where two opponent sides present their case to an impartial
third party
Applies to both civil and criminal matters
The adversary system puts the prosecution against the accused who will usually
be presented by a lawyer. The judge or jury acts as an impartial observer who
determines the accuseds guilt or innocence based on the evidence and
arguments presented

Legal Personnel

Magistrate:
o Magistrates are the judicial officers that preside over hearings in the local
court.
o They oversee proceedings and make a determination on the basis of the
evidence presented
Judge:
o Judges are the judicial officers that preside over the immediate and
superior courts the District Court and Supreme courts
o Judges oversee proceedings, maintain order in the courtroom and ensure that
the procedures of the court are followed
Police Prosecutor (police in a court)
o They are an essential part of any criminal case
o It is imperative that the police undertake an intensive and exhaustive
investigation of the matter and gather all the evidence and information
that will be used at trial to form the case against the accused
o The police will often also be required to give testimony at the trial to the
prosecutions case
o Represents the police in the local court and puts forth the evidence in court
Director of Public Prosecution (guy that decides if there is enough evidence for the state
to go over to court)
o The DPP is an independent authority that prosecutes all serious offences
on behalf of the NSW Government
o For indictable offences and some summary offences, cases will be prosecuted by
the NSW office of the Director of Public Prosecutions (DPP).
o The DPP will also conduct some committal proceedings for indictable
offences
Public Defenders
o Public defenders are public barristers who can appear for an accused in
serious criminal matters where legal aid has been granted

Pleas, charge negotiation

Plea: a formal statement of guilt or innocence entered into by the accused

Plea Bargaining: An agreement between the prosecution and the accused on
the acceptance of guilty plea, usually in exchange for something else

Advantages of Plea Bargaining

o That plea bargaining decreases costs and time delays, which is beneficial to
all parties
Disadvantages of Plea Bargaining
o It may result in an accused pleading guilty to a crime for which they are
innocent

Legal representation, including Legal Aid

Legal Aid: Legal Aid NSW is usually accessed by marginalised and disadvantaged
groups in society such as disabled persons and people who are financially
disadvantaged through unemployment

Burden and standard of proof

Burden of Proof: In criminal matters, the burden of proof is the responsibility of the
prosecution to prove the case against the accused
Standard of Proof: the level of proof required for a party to succeed in court
Beyond Reasonable Doubt: Beyond Reasonable Doubt is the standard of proof
required in criminal law where the prosecution is to show that there is no
reasonable doubt that the accused committed the offence

Use of Evidence, Including witnesses

The use of evidence in a court case is bound by the Evidence Act (1995) and
includes various complex ules
For evidence to be admissible in court it needs to relevant to the case and legally
obtained by the investigating police.
Evidence that the police has obtained illegally is generally inadmissible unless a
special exception is made by the judge
Witnesses can be called to give evidence in court by either the prosecution or the
defence and may be examined by either in court
o A witness might be someone who saw some aspect of the crime take place, or
simply has some relevant knowledge about an aspect of the case that supports
the prosecutions or defendants argument

Defences to Criminal Charges

A defence will usually involve some denial, justification or excuse for the
accuseds acts
Complete Defences:
o Complete defences: are used to justify the defendants actions and if
successfully proven will result in charges being dropped or if it is
determined following a trial process an acquitted
Acquittal: A judgement that a person is not guilty of the crime with
which the person has been charged
Mental illness or insanity: is a defence that is only available where
the accused can prove that they were in fact mentally
incapacitated when they committed the offence
Involuntary behaviour or automatism: is another defence relating to
the mens rea of accused- that the accuseds actions was not
voluntary or could not be controlled, e.g epileptic fit
Mistake: where the defendant acted under an honest mistake and
could not have formed the mens rea

Self-defence or necessity: the defendant acted in defence of self,

another or property; only accepted in limited circumstances and only
for reasonable force
Duress: a defendant may be acquitted if they can show they acted
against their will under unlawful pressure
Consent: it is a complete defence for some crimes if the accused can
show the victim freely consented to the act in question
Partial Defences: when a murder has been committed, the accused may claim
that there were mitigating circumstances that caused them to carry out
the act. While it is not enough to absolve the defendant of blame, it may
help reduce the sentence or even result in an acquittal
Provocation: the defence where the defendant claims that their actions
were a direct result of another persons actions and caused them
to lose control of their actions
Diminished responsibility: this defence is used when the accused is
suffering from mental impairment that caused them to commit the
crime

The role of juries, including verdicts

A jury is a panel of citizens selected at random from a jury list compiled from the
electoral roll whose job is to determine the guilt or innocence of the defendant
based on the evidence presented at them
4. Sentencing and Punishment
Statutory and Judicial Guidelines

Maximum penalty: set by parliament, this is the maximum sentence available to

a court to impose for an offence, the maximum penalty will rarely be handed down
Judicial Discretion: the power of a judge or magistrate with to make a decision
within a range of possibilities based on the particular circumstance of a case
Guideline Judgements: judgements issued by the court on application of
Attorney General that will set out sentencing guidelines for a particular
offence
Mandatory sentencing: removal of judicial discretion by legislation by setting
a minimum or mandatory sentence for a particular offence or type of offence

The Purposes of punishment

Deterrence: A deterrent is something that discourages or is intended to

discourage someone from doing something thing
o Specific deterrence: punishment against an individual offender aiming to
deter them from committing crime in future by showing that crime does not pay
o General deterrence: punishment attempting to make an example of an
offender in order to send a message to the rest of the community that
the law is serious about punishing people for this offence
Retribution: retribution is a general term referring to punishment considering to
be morally right or deserved, based on the nature of the crime
Rehabilitation: an objective of sentencing designed to reform the offender to
prevent them committing offences in the future
Incapacitation: Incapacitation involves making the offender incapable of
committing further offences

Factors affecting a sentencing decision

Aggravating factors:

Aggravating factors are circumstances that make the offence more serious
and lead to an increased sentence
o They are likely to result in an increased sentence being imposed
o It can relate to the way the offence was committed, the characteristics of the
victim or actors relating to the offender
o E.g. when gratuitous violence is used
Mitigating factors,
o Mitigating factors are circumstances that make the offence less severe and
can lead to a reduced sentence
o E.g. if the offender is inexperienced and easily led, the offender pleaded
guilty or assisted police, the offender has shown remorse
o

The role of the victim in sentencing

Victims can be involved in the criminal trial process in a number of ways, from reporting
a crime and assisting police through to testifying at trial as a witness and submitting a
victim impact statement
Victim impact statement: a voluntary written statement by the victim or
victims family about the impact the crime has had on them heard at the time
of the sentencing

Appeals

A person convicted of an offence and sentenced will have the right to appeal
their case, that is apply to a higher court for review of one or more decisions made in
the lower court
o Appellant: A person or party who applies to a higher court for the review
of the decisions made in the lower courts
Appeal against conviction
o In appeals against conviction , the appellant argues that they did not
commit the offence for which they were found guilty
o It is difficult for this type of appeal to succeed and it will usually involve
an argument that there was some legal error at law in the handling and
prosecution of their case
Sentence
o Sentence appeals are the appeals by the offender against the severity
of their sentence or by the prosecutor against the leniency of the
sentence
o A sentence might be increased or reduced this is a risk that the appellant
mist consider carefully in making the appeal

Types of penalties

Conviction/No conviction
o When a person is charged with an offence and declared guilty by a judge or jury,
that person is considered convicted of that offence. The judicial officer has the
option to record the conviction against the offender, or pass sentence
with no conviction recorded
o Normally, a conviction will be recorded and an appropriate sentence imposed
o For less serious offenders or first time offenders, a judicial officer might choose
not to record a conviction
Caution: A formal warning without charge issued by police for less serious
offences

Fine: A fine is a monetary penalty imposed on an offender and usually applies for
less serious offences such as driving offences or breaches of local laws. It is the most
common type of sentencing in Australia
Bond: A compulsory condition imposed on the offender for a period of time,
which the offender undertakes to comply with
Suspended sentence: A sentence of imprisonment imposed on but suspended
on condition of good behaviour
Criminal infringement notice: A notice issued by the police outside of court
alleging a criminal infringement and requiring payment of a fine
Penalty units: A specific unit of money used in legislation to describe the fine
payable
Community service orders: A community service order is a penalty that can be
imposed by the court instead of a period of detention or imprisonment, if
deemed appropriate for the offence
Home detention: Home detention is a less severe option than full time imprisonment
in a correctional facility and allows the offender to serve their sentence while
confined to their own home
Periodic Detention: Periodic detention is a form of imprisonment sentence that
allows the offender to serve a period of time each week or month in prison,
rather than the whole time. It can only be ordered where the sentence is less than 3
years
Forfeiture of assets: if the offender has obtained money or property through
their criminal activities, a court may order that the money or property be
recovered
Diversionary programs: an alternative to the traditional court system, diversionary
programs focus on therapeutic justice and rehabilitation of offenders

Alternative methods of sentencing

Circle sentencing: a form of sentencing of some adult Aboriginal offenders

where sentencing is conducted in a circle of local community members and a
magistrate
Restorative justice: a form of sentencing involving voluntary conference
between the offender and the victim of the crime

Post sentencing considerations

Security classification
o Correctional centres are divided into 3 classifications: maximum,
medium and minimum
Maximum security centres hold offenders who committed the most
serious crimes and whose escape would be highly dangerous to
the public
Medium security: inmates can move around more freely but within
high walls or security fences
Minimum security: there are fewer barriers to escape and inmates
will be allowed more open conditions
Protective custody: the detention of a person for their own protection E.g.
police in prison
Parole: Parole refers to the conditional release of a prisoner from custody
after the completion of the minim term of the sentence, that is, the nonparole period set by a judicial officer at sentencing
Preventative detention: detention of a person in custody without having committed
any offence, in case of some future harm that they may commit

Continued detention: the on-going detention of a person after they have

already served the full sentence for their offence
Sexual offenders registration (when you leave jail, you still need to be on a record
that you committed a sexual crime
o There are both state and federal databases of sexual offenders who have been
convicted of certain sexual offenses
o Adult offenders must register for a minimum period of 8 years
o Sexual offender registries are justified on the basis of the protection of the
community
Deportation:
o A migrant living in Australia who is not a citizen may be deported if they are tried
and convicted of a criminal offence
o Deportation is an extremely serious effect of a sentence of imprisonment
5. Young offenders
Age of criminal responsibility

Age of criminal responsibility is defined by statute as 10 years old (Childrens (criminal

proceedings) Act 1987 NSW
Means that a child under 10 cannot be prosecuted for a crime because the child is
immature and vulnerable hence their inability to form the requisite criminal intent
known as mens rea
Doli Incapax : refers to the presumption that a child is incapable of crime who are
between 10-14 years old

The rights of children when questioned or arrested

Police are entitled to require that a young person provide them with full, name, address
and proof of identity
Police have no general power to detain a child for the purpose of questioning
Cannot be taken to the police station unless they are arrested
Entitled to have their parent, guardian or solicitor during questioning

Childrens court procedures and operation

Is a closed court and is less formal

Presided over by a magistrate, there is no jury
Rehabilitation is the primary purpose of sentencing
The names of children and young people appearing in the Childrens court are not
published, it is an offence for media outlets to do so

Penalties for children

Primary aim when imposing penalty on a child is to rehabilitate

A caution may be issued
Offender may have to be referred to a youth Justice Conference
Community service
Placed on a control order to be served in a Juvenile Detention facility for a max of 2
years

Alternatives to court

Warnings
Cautions
Youth justice conferencing

6. International Crime
International crime is a broad term that could cover any such crime with
international origin or consequences
Categories of international crime
There are two categories:

Crimes against the international community

o Crimes against the international community are a collection of offences that
are recognised by the international community as being of universal
concern
o They include some of the most crimes possible e.g.
Genocide: acts which have any intention of destroying all or part of a
national, ethnic, racial or religious group
o The importance of all states condemning crimes against the international
community is that the criminals may be unable to escape prosecution simply
because they are still in power or have fled outside of jurisdiction
Transnational crimes: crimes that occur across international borders, either in
origin or effect

Dealing with international crime

Domestic measures and International Measures

o Enforcement of international crime is an issue due to the notion of state
sovereignty which limits the jurisdiction of a domestic countrys law and legal
system
o Extradition
The process of returning to a jurisdiction a person who has either been
convicted of a crime in that jurisdiction or accused of committing a crime
To extradite an offender from overseas Australia must have an extradition
agreement with the nation state where the offender currently resides
o INTERPOL (international Criminal police Organisation)
Worlds largest police organisation
Aims to facilitate co-operation in law enforcement between member
nations with the aim of deterring and combating international crime
o Mutual Assistance:
Term used to describe the request by one government to another for
assistance with regard to criminal investigations and prosecutions
Process allows nations to obtain assistance with such matters as executing
warrants in a foreign country or obtaining testimony from a witness

Effectiveness and limitations of measures dealing with international crime

Crimes against the international community

o The most significant development in combating crimes against the
international community has been the establishment of ICC
o ICC is symbolically very powerful and sends a message that leaders or
other criminals can no longer hide behind the immunity of their own
sovereignty in committing such appalling acts
o It also acts as a deterrent against rogue leaders
o However, the ICC is established to deal with these matters AFTER they
have been committed and there is valid criticism that international law and
the international community have been too slow to stop these matters
before they occur

Transnational Crime
o There are often complex organised criminal groups at work with sophisticated
measures taken to avoid detection.
o Some states may lack the skills, training and resources to combat such crimes
o Such states may become a target or a breeding ground for transnational crime
affecting other states making it very difficult to combat
o To be successful states will require significant cooperation and sharing of skills,
resources and funding
o To date, some measures both domestic and international have been put to place
to cope with transnational crime and there has been some success in response
o However, transnational crimes are unlikely to disappear in the near future as the
world changes and increased efforts will be needed