Crime

Legal Studies Part I – Crime
1. The Nature Of Crime
The Meaning of Crime
A crime is defined as “any act or omission of duty that results in harm to society, and which is punishable by the state”
The Elements of Crime: Actus Reus, Mens Rea
There are two elements which must be present for a ‘crime’ to be committed: 1. Actus Reus: The Guilty Act – The act is carried out or performed, or an omission of an act which should have been done takes place. 2. Mens Rea: The Guilty Mind – Intent to do the act. There are three levels of this: a. Intention – A clear, malicious or wilful intent to commit the crime b. Recklessness – An intermediate level of intent. Person knew of the risk, but continued with the act which caused harm c. Criminal Negligence – The accused fails to foresee the risk of their actions. Seen in the case of R v Thomas Sam; R v Manju Sam (No. 18) (2009) where the daughter of the couple was not given adequate medical attention for her eczema, resulting in her death
Strict Liability Offences
These are offences where the prosecution only has to prove the act was done (Actus Reus). They do not have to prove the guilty mind as the person involved accepts the responsibility when they undertake the act which they were performing. Commonly applied to traffic offences i.e forgotten to put on seatbelt or exceeded speed limit. By undertaking the activity they have accepted responsibility to follow the law and therefore are strictly liable.

Causation
This is the link between the behaviour of the accused and the result of their criminal act e.g. striking someone with your fist who then has a heart attack and dies or receives an infection and dies in hospital. * R v Munter (2009) - Todd Munter convicted of manslaughter after punching 66 year old Ken Proctor over a dispute regarding water restrictions. Munter sentenced to 3 years and 3 months for manslaughter as the punch cause the heart attack which killed Mr. Proctor.
Categories of Crime
Offences can be categorised in many ways, and these affect the way an offence is investigated, prosecuted or punished. These include: * Types of Offence i.e against the person/drug offences etc * Jurisdiction - NSW or Commonwealth Crime * Seriousness of the offence, and whether is it a summary or indictable offence * Parties to a crime i.e whether the accused is the principal offender or assisted in some way
Types of Offences
In NSW the Crimes Act 1900 (NSW) is divided into 16 part relating to types of offences, which are further subdivided. Offences are also listed in other NSW acts and regulations. Commonwealth offences follow a similar regime. Summary:

Types of Offences | Examples | Offences against the person | Homicide, assault, sexual offences | Offences against the sovereign | Treason, sedition | Economic offences | Property offences, white-collar crime, computer offences | Drug Offences | Trafficking (dealing/trading) possession, use | Driving Offences | Speeding, Drink driving, negligent driving | Public Order Offences | Offensive conduct, Obstructing traffic, affray, bomb hoaxes | Preliminary Offences | Attempts, Conspiracy | Regulatory Offences | Breach of water/fire restrictions or public transport rules |

Offences Against the Person
These involve harm/injury to an individual. Because of numerous ways this can occur, such crimes are divided into 3 distinct areas, each including numerous offences * Homicide – is defined as the unlawful killing of another person. This includes both deliberate and accidental acts of killing with varying levels of mens rea applicable. In a homicide case, causation must be established between the actions of the accused and the death of the victim. There are four main categories in NSW law:

* Murder – The most serious homicide offence, punishable by life imprisonment. In order to prove murder (death directly related to actions of accused), the prosecution must show at least one of the following exists: * The accused intended to deliberately kill the victim * The accused set out to inflict serious bodily harm, which resulted in death * The act was done with reckless indifference i.e accused did not care of consequences or death of victim. Usually hardest to prove * The act was done while committing/attempting to commit another serious crime punishable by life or 25 years imprisonment
Boughey v The Queen (1986) [6] CLR 10: a doctor strangled his wife during a sex ‘game’, The court held there was a good chance of harm, and they Boughey had the capacity and knowledge to know better, and that the act constituted reckless indifference – Boughey was convicted of murder. Murder attracts severe penalties, and thus receives lots of media attention (CSI, Law and Order), giving the impression that murder is common. However, the number of recorded murder victims in NSW from Sep 08 to Sep 09 was 88, compared to 26,042 domestic violence related assaults in the same period. According to the Australian Institute of Criminology (AIC) most murder victims are killed by a family member or friend. * Manslaughter – is the second type of homicide but differs from murder through intent. Manslaughter involves a reduced sentence and is punishable by up to 25 years’ imprisonment. A person may be charged where it cannot be proved they intended to kill the victim to the degree required for murder. 3 types: * Voluntary Manslaughter – is killing with intent, but under mitigating circumstances (i.e provocation) - this reduces culpability. For voluntary manslaughter there must be mitigating circumstances.

* Involuntary Manslaughter – is where the death occurred because the accused acted in a reckless/negligent way, but without intent to kill. In DPP v Newbury and Jones [1977] AC 500 the accused deliberately dropped a slab of concrete from a bridge and this hit and killed a train guard. The act constituted involuntary manslaughter despite no intention to kill. * Constructive Manslaughter – is the killing of a person while the accused carried out another dangerous/unlawful act – the crime is ‘constructed’ from other act i.e where a person assaults another person without intention to kill, but death occurs.

* Infanticide – is a special category of manslaughter that applies to the death of a baby under 12 months by its mother. The Crimes Act 1900 (NSW) requires that the court take into account the state of mind of the mother at the time. Many women suffer post-natal depression and this can act as a mitigating circumstance.

* Death By Reckless Driving – is a particular type of manslaughter from motor vehicle accidents. It describes when a person drives in an unsafe and reckless way (i.e influence of alcohol or drug, or excessive speed) and resultantly causes death. A conviction for this carriers a maximum of 10 years, but aggravating circumstances can increase this to 14.

* Assault – Most common form of crime against a person. Includes physical harm and common assault, which is threatening to cause physical harm to another person. * Physical assault is a direct act of force applied to another person’s body unlawfully and without their consent – punishable by up to 5 years imprisonment. A threat for this can also be assault where it causes fear (threatening phone calls, text messages, emails etc). * Aggravated assault is a more serious charge, when the assailant uses an object, or attacks a police officer carrying out their duties. Recently there have been robberies using syringes where thieves claim the syringe has an infectious disease – this could constitute aggravated assault

* Sexual Offences * Sexual Assault is forced sexual intercourse (broadly defined by the Crimes Act 1900 (NSW) to include oral sex or penetration of the vagina or anus by any part of another person’s body or by an object manipulated by another person) against the victim’s will and consent. Can occur to males and females although greater numbers reported by females (male social pressure). Victims fear reporting the crime – is a problem. A person is not consenting when: * Substantially intoxicated by alcohol or drugs, and lack capacity to consent. * Intimidated or coerced into the act * If the accused is abusing their position of trust or authority over the victim.

* Aggravated Sexual Assault is applicable where there are aggravating circumstances (i.e violence used, victim under 16 years, or the victim has a serious physical or intellectual disability). Max 20 years imprisonment.

* Indecent Assault is where the accused commits an assault of ‘act of indecency’ on, or in the presence of, another person without their consent. Indecent acts are not expressly defined in the Crimes Act but include assault with a sexual element i.e touching genitals or other body parts in a sexual manner without consent.

* Aggravated sexual assault in company is the most serious sexual offence (NSW), punishable by life imprisonment. Includes elements of sexual assault but performed with another person or peoples together depriving the victim of liberty, or the infliction or threatened infliction of bodily harm. Introduced in NSW in 2001 after a series of ‘gang-rapes’ across Sydney’s inner-west that led to public outcry for reform. A catalyst for this new law was the case of R v AEM (Snr); R v KEM; R v MM [2002] NSWCCA 58, which involved three young men (19, 16 and 16) who lured two 16 year old girls to their Villawood home. They were sexually assaulted for several hours, and threatened with knives and verbal death threats. At the time the maximum penalty was 20 years (aggravated sexual assault), and men originally sentenced to 5-6 years imprisonment each. Public outcry led to the new offence of ‘aggravated sexual assault in company’ in section 61JA of the Crimes Act 1900 (NSW) - max penalty of life imprisonment. Offenders original sentences increased on appeal to 13/14 years each.
Reported cases of sexual assault in NSW (BOCSAR): Offence | Year | | 2006 | 2007 | 2008 | Sexual Assault | 4028 | 4182 | 4190 | Indecent Assault and act of indecency | 3507 | 3411 | 3404 | Other sexual offences | 1893 | 1792 | 1819 |

Offences Against the Sovereign
Some of the oldest crimes, and includes political offences against the state or heads of state. Laws justified as protecting the structure, authority and integrity of the state and the citizens it governs. * Treason crime of treason imported from British common law and was enacted in NSW under Part 2 of the Crimes Act 1900 (NSW), and in the commonwealth under the Crimes Act 1914 (Cth) and later under s80.1 of the Criminal Code 1995 (Cth). Treason is defined as an attempt or manifest intention to levy war against the state, assist the enemy, or cause harm to or death of a head of state (governor-general, PM, Queen). Formerly punishable by death, but now punishable by 25 years imprisonment (NSW) or life imprisonment (Cth). * Sedition involves promoting discontent, hatred or contempt against a government or leader of the State through slanderous use of language; in Aus sedition includes urging force or violence against the government. In Aus, such laws had fallen into disuse until re-enacted in 2005 in the Anti-terrorism Act (No.2) 2005 (Cth), which revived sedition. The Aust laws under the Criminal Code 1995 (Cth) make it an offence to urge another person to use force/violence to an end i.e to overthrow government/constitution/interfere in elections. Punishable by up to 7 years.
Received widespread criticism as unnecessary and a danger to freedom of expression in relation to commentary and critique by the media and arts. When the labour govt was elected in Nov 2007 it commission a review of the laws by the ALRC, with a view to amend them. The ALRC recommended removing the term ‘sedition’ from the laws and amend elements of the offences and available defences – not yet amended

Economic Offences
Include crimes that result in a person or persons losing property or sums of money. Largest area of criminal law – encompasses common crimes. Fall into 3 categories: * Crimes against property: Three main types of this: * Larceny a.k.a theft/stealing. Larceny occurs when one or more persons intentionally take another person’s property without their consent, and without the intention of returning it i.e shoplifting. Punishable by up to 5 years imprisonment * Robbery occurs when force is present in the act of stealing goods. If accompanied by the use of, or threat of a weapon, it is armed robbery – higher sentence * Break and enter (burglary) refers to a series of offences in the Crimes Act that occur when a person/persons enters a room/building (i.e home), with the intention of committing an offence (usually another offence such as larceny) Offence | Year | | 2006 | 2007 | 2008 | Break and enter dwelling | 48,036 | 47,610 | 44,782 | Break and enter non-dwelling | 27,153 | 24,411 | 22,889 | Steal from dwelling | 24,313 | 23,000 | 21,747 | Steal from retail store | 18,110 | 18,399 | 19,843 | * White collar crime - general term for various non-violent crimes associated with businesspeople or professionals. Often difficult to detect and time-consuming/expensive to investigate, most commonly: * Embezzlement describes when a person misappropriates another person’s property or money that they have been entrusted with i.e employee stealing money from employer (bank transfer, or physical cash theft), or a large-scale corporate embezzlement. Done in small amounts at a time, and stolen money is difficult to recover (even through courts i.e poor offender unable to repay money). * Tax evasion occurs when a person/company tries to avoid paying taxes to the government i.e fraudulently filling out tax returns stating lower incomes, or organising a business/property in a way as to hide income/assets, thereby reducing tax to be paid. Can incur high penalties * Insider trading relates to the buying and selling of company shares i.e obtain confidential prospective information (i.e it will rise or fall), and they take advantage of this to buy or sell their own shares for benefits or avoiding losses. A highly publicised case is R v Rivkin (2003) 198 ALR 400 in which the accused was found to have been told confidential information by a company executive about a merger just hours before he bought shares in QANTAS, April 2001. His profit of $2662.94 from the merger led to nine months of periodic weekend detention and his stockbroker license being permanently banned.

* Computer offences include various crimes related to hacking. The Crimes Act 1900 NSW lists offences such as unauthorised access to, modification or impairment of restricted data, or more serious crimes like impairment of electronic communication or unauthorised access or modification of restricted data with intent to commit a serious offence i.e breaking through firewall to alter/steal data. Such crime may result in private financial data being used unlawfully. Most serious offences give a 10 year penalty. * Fraud economic offence, can include white collar, property or computer crime. Fraud is deceitful or dishonest conduct carried out for personal gain. Often an element of other offences i.e fraudulent impersonation or obtaining credit by fraud. Technology advances increase fraud, i.e ATM skimming. Common types: identify theft, internet phishing, or requesting funds under fraudulent pretences (i.e Nigerian email scams). Identity fraud costs the Australian public over $4 billion an year (according to Australian Federal Police)
Drug Offences
Eelate to acts involving prohibited or restricted drugs. Many crimes are associated with drug abuse or addiction (larceny, robbery, prostitution etc). Drug offences focus on the movement of drugs themselves i.e growing, selling and use. Drugs can be legal (paracetamol, caffeine) and illegal/prohibited (cannabis, heroin) and restricted drugs i.e by prescription only (cold/flu tablets, anti-depressants) or restricted to scientific/medical usage. In NSW the Drug Misuse and Trafficking Act 1985 (NSW) outlines offences relating to drugs, with additional offences in the Summary Offences Act 1988 (NSW). The main federal legislation is the Customs Act 1901 (Cth). Mostly applies where there is an international element i.e cross-border trafficking. Most common drug offences relate to prohibited drugs (cultivation, production, trafficking, use). Some main offences: * Possession – Accused must be in custody/control and the accused must know about it; including shared ownership/minding for someone * Use – Intentional consumption of drugs by any mean (does not apply if the use occurs at medically-supervised injecting centre) * Cultivation - growth of a prohibited plant i.e cannabis * Supply – Includes offering and supplying, regardless of whether the actual drug exchanges hands. Can also include possession with intent to supply.
Carry severe penalties, including attending drug rehabilitation and good behaviour bonds. Cases may be heard in dedicated youth or adult drug courts. Suppliers dealt with more severely, as they are deemed to have a greater impact on the whole community i.e lengthy sentences in Australia, death sentence abroad (Indonesia, Singapore). 25 yr old Van Nguyen hanged in Changi Prison, Singapore in 2005 for drug trafficking, after arrest at Changi airport in 2002 with 396.2g of heroin.
Driving Offences
Most commonly committed offences. Included in Crimes Act 1900 (NSW) and Road Transport (Safety and Traffic Management) Act 1999 (NSW). Police enforce many offences through on-the-spot fines, generally relating to strict liability offences (i.e speeding). Traffic offences regulated by the RTA, which controls the demerit system where offenders can lose points from their license for certain offences. Most common offences: * Exceeding speed limits * Driving without a licence/while disqualified * Ignoring road signs * Driving above the legal blood alcohol limit (0.05 for local full license).
Serious offences may be dealt with through courts and attract large fines, suspended or cancelled licenses or imprisonment. Serious offences include furious or reckless driving, negligent driving causing death or serious bodily harm, or failing to stop and give assistance in an accident involving death or injury. Also include driving under influences of drugs/excessive alcohol.
Public Order Offences
Relates to acts that disturb the public. Listed under the Summary offences Act 1988 (NSW) and under part 6A of the Crimes Act 1900 (NSW). Society deems these inappropriate or disturbing in public, despite legality in private. Most commonly: * Obscene, indecent or threatening language or behaviour in public * Possessing a knife in a public place without reason * Obstructing traffic or ignoring police direction to ‘move on’ * Damaging public or protected places i.e fountain
Usually incurs a fine or penalty. However some are more serious (listed in the crimes act) i.e affray involves using or threatening use of unlawful violence on another person that causes fear. Often laid as a result of a public fight/brawl, punishable by up to 10 years. Riot is a similar public order offence but involves 12 or more people using/threatening to use unlawful violence for a common purpose. Other serious offences: explosives/firearms offences, bomb hoaxes, participation in criminal organisations.
Preliminary Crimes
Refer to offences that precede the commission of a crime or where the crime has not been completed (interrupted, unsuccessful). Two main categories: * An attempt to commit a crime is usually punished the same as if the crime took place. Section 344 of the Crimes Act 1900 (NSW) states ‘any person who attempts to commit an offence for which a penalty is provided shall be liable for that penalty’. However, certain attempts i.e attempted murder may carry lower penalties. Prosecution must show that attempt was all but completed or failed. Accused may have a lawful reason or no intention to commit the apparent crime i.e R v Whybrow (1951) 35 CAR 141 a husband connected electricity in the soap dish in the family bath to kill his wife. It did not work and the wife only received a shock. The court found him guilty of attempted murder despite failure. * Conspiracy occurs when two or more people jointly conspire to commit a crime. An agreement must be reached between the parties to commit the act. Often difficult to prove without confession or a record i.e signed document or phone tap, because no incident has taken place
Regulatory Offences
Usually set out in delegated legislation (regulations, local laws) that address day to day situations. Differ from serious offences set out in statute/common law. Generally considered minor offences with lesser penalties, set by govt department or agency responsible for that area of law/policy and require faster/more frequent changes than traditional legislative process allows. Examples: * Watering the garden despite restrictions * Breach of OH&S regulations * Travelling on public transport without valid ticket * Lighting a fire/BBQ on a fire-ban day
Usually strict liability offences are enforced by govt officers or local law enforcement. A breach usually incurs a fine/loss of privilege but more serious offences can result in more serious charges.
Summary and Indictable Offences
All offences can be separated into summary and indictable offences depending on severity. The difference is crucial to the way the case is prosecuted. * Summary offences – less serious, incur less serious penalties than indictable offences generally. Heard/sentenced in Local court. Penalties include bond/fine or jail sentence of up to 2 years. Many offences found in the Summary Offences Act 1988 (NSW) + includes regulatory offences. Charge usually laid by police/government officer. * Indictable offences – more serious (assault, property damage), generally heard in district or higher courts, but committal hearing heard in local court where magistrate determines if enough evidence present to go to trial. Charge usually laid by public prosecutor working for the state.Heard and sentenced by a judge or jury (where there is a not guilty plea). Many indictable offences are also ‘triable summarily’ where the magistrate can elect a hearing in the local court or by judge and jury in the district court. Local court cases have less formality, faster hearing and less cost and possibility of lesser sentences due to local court restrictions on sentences. District court offers advantage of a possible not-guilty jury verdict.
Parties to a crime
Crime does not have to be a solitary pursuit – people can be involved before, during and after the crime. They may be a ‘party’ to a crime and punished accordingly, relevant to involvement. Four categories * Principal in the first degree – The principal offender who commits the act i.e in armed robbery: the person who pointed the gun/took the money. Directly responsible for crime usually receives highest sentence. * Principal in the second degree – Person who was present at the crime and assisted/encouraged i.e in armed robbery: person who was the lookout. Lesser sentence than first degree given * Accessory before the fact – Someone who helped the principal to plan or prepare the crime beforehand i.e providing blueprints * Accessory after the fact – Someone who assisted after the act i.e getaway car, disposing evidence
Factors affecting criminal behaviour
1Crimes may be committed for different reasons. Criminology is the scientific study of crime and criminal behaviour. Crimes may also be committed because the area of law is out-of-date and needs reform. * Psychological factors – Mental illness may affect behaviour. Important to note as it may affect offender’s trial and sentencing due to their state of mind/decision making. Programs focus on this i.e drug rehabilitation programs * Social factors – Social factors may include a person’s attitude, family situation or personal relationships. Social interaction/association may influence behaviour, particularly relevant in drug/public order offences. May also be environment that child has grown up in i.e abusive home may cause traumas that may be replayed in their adult life without treatment * Economic factors – Most substantial reason, as people who are economically disadvantaged are more likely to commit crimes i.e Statistics by the AIC show 1/3rd of males and ½ of female offenders a welfare or government payment as their main source of income. Poor education/lack of skills relevant – criminals habitually unemployed. Even if employed, they view criminal acts as a financial benefit i.e larceny/robbery. * Genetic theories – Have been of interest to criminologists/scientists. DNA of prisoners cross referenced to find common links/markers to predict criminal behaviour. No conclusive results – suggests social, economic and psychological factors more relevant * Political factors – Offences against the sovereign/state usually have political factors influencing them i.e annual protests at the G8 summit or protests at 2009 Copenhagen Climate Change Conference. Terrorism related offences can be extreme instances of this * Self Interest – Usually plays some part i.e drug offences for profit or use, property offences for profit, offences against the person for self-interested revenge. White collar crimes often have greed/self-interest as factors rather than socio-economic or political factors.
Crime Prevention
Understanding factors has importance in crime prevention. As society evolves, two main areas of crime prevention are employed: * Situational crime prevention – Aims to deter/make crime difficult. This usually involves one of two approaches: * Planning and architectural design – Focuses on influence of physical environments on crime i.e installing bars, alarm systems or computer passwords/internet firewalls. Avoiding hotspots i.e poorly-lit alleyways/carparks can assist in crime prevention. Unorthodox approaches: shopping centres playing classical music to deter young offenders. Curbing incidents also relevant i.e no alcohol zones, improving lighting, blue fluorescent lights in public toilets to prevent drug use.

* Focused (situational) approaches – Focuses on rational choice theory – views offenders as weighing up potential gains, risks and costs i.e CCTV cameras/magnetic strap alarm tags may deter crime for fear of being caught, and provide evidence/alertness if the crime takes place anyway. Decreasing rewards also relevant i.e colour tags on clothes that release dye if removed by force

* Social crime prevention – Attempts to address underlying social factors, such as: * Poor home environment or parenting * Social and economic disadvantage * Poor school attendance * Early contact with police/authorities.
Lots of money put into these areas i.e educational programs, TAFE for those who find school inappropriate. Parenting workshop run for parents from disadvantaged backgrounds to empower them/allow children to make better choices. Youth programs also run to teach dispute resolution, to prevent a situation where they feel the need to commit and offence
2. The Criminal Investigation Process
Police powers
Laws only define what a crime is: would be ineffective without enforcement – these powers given to police, the executive arm of government. They are separate from legislature (who make laws) and courts (make legal decisions and judgements). Police prevent and detect crime and maintain public order – the police ensure criminal laws are observed. Police investigate crimes, make arrests, interrogate suspects and gather evidence against the accused. Police present this evidence to a court for judgement, on behalf of the state. Challenge is balancing police powers against the rights of ordinary citizens.
NSW: Crimes investigated by NSW Police force or Australian Federal Police. Offences also enforced by other government officials & local law enforcement officers (i.e regulatory offences). The majority of NSW Police Force powers are in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Some main police powers: * Detain and question suspects * Search property & seize evidence (search and seizure) * Use reasonable force to carry out their duties * Use particular technologies to assist investigation i.e phone tap, surveillance, DNA samples. * Arrest and interrogate suspects * Recommend whether bail should be granted.
Some special powers are controversial – conflict with ordinary citizens rights i.e if a citizen used force to detain someone it would be a crime (assault, false imprisonment, affray). However, society and lawmakers deem these powers reasonable. Police sometimes need to obtain a warrant, which is a legal document issued by a magistrate authorising an officer to perform a particular act i.e arrest, phone tap, conduct a search. This is one of the checks to make sure power is not abused.
The NSW Police Force follows a code of behaviour: the Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence), which sets out the rights of suspects and manner of investigations. Police expected to treat all citizens equally and fairly regardless of age, sex, background etc. Extensive complaint procedures available for suspect complaints. NSW Police force overseen by NSW Ombudsman and Police Integrity Commission.

Reporting Crime
Citizens are important in reporting crime – community programs established to encourage reporting crimes, assisting police with information i.e Crime Stoppers – national community based program that encourages reporting unsolved crimes, unknown offences, suspicious activity etc. 2009: Crime Stoppers alone received 47,247 contacts from the public resulting in 298 arrests and 1376 charges laid. Reluctance to report crime can be because: * Reluctance to become involved or appear as a witness * Fear of consequences/retribution if crime is reported * Inability to report the crime * Dispute already settled with offender i.e brawl or theft by a person known to victim * Perceived time/administrative burden of reporting crime.
Some crimes more reported than others i.e property offences (to try to recover lost goods or because victim cannot claim insurance without a police report). Other crimes (domestic violence, sexual assault) often go unreported – BOCSAR estimates 85% of sexual assaults are unreported). Often due to shame/embarrassment and victims not wanting to relive the ordeal during a trial/testimony.
Investigating Crime
Police can pursue a crime after a report. The extent they go to depends on the crime, and its severity – not all reported crimes are investigated as resources are allocated to more serious/high priority crimes. Methods for investigation: * Gathering evidence – Police gather evidence to further the investigation and support a charge (formal accusation of a person committing a criminal offence). This often has to happen quickly before witness memory fades or evidence is compromised/interfered with. Specialists and detectives document evidence ‘in situ’ – (Latin: in the place) used to describe the place in which a piece of evidence is found or situated.

Evidence that has been contaminated or compromised is inadmissible evidence – organic samples (hair, blood) particularly vulnerable to contamination. Evidence must be obtained in a proper and lawful manner, required by Evidence Act 1995 (NSW). The law imposes limits on evidence collection to ensure evidence is legitimate and does not interfere with rights – procedures must be followed and a warrant may be required

Types of evidence that may be gathered include physical evidence (objects, weapons, documents, hard drives), oral testimony, DNA, fingerprints, tape and video recordings. Gathering evidence is meticulous and specialised i.e specialised fingerprint and ballistics experts who can analyse/collect evidence.

* Use of technology – Technology is used by police to gather/process evidence – law enforcement must keep up with technological advancements, and it must be reliable or it risks being inadmissible in court, or even resulting in wrongful conviction. Scientific and technological advancements have made processing and cross-checking more efficient and effective. Fingerprint/DNA bases allow easy information sharing. Surveillance using digital recording means footage can be easily shared and reproduced. Cybercrime has also risen but cybercrime units can often track down people through their activity (internet scams, international pornography rings etc).
DNA evidence has solved many cold (unresolved) cases – is dependable and relied on. A person must consent to DNA sample (saliva, blood, hair) but magistrates can authorise taking the sample. However human processing errors or system glitches can cause errors i.e in 2009. * Search and seizure – Two special powers given to police under Part 4 of the Law enforcement (Powers and Responsibilities) Act 2002 (NSW) - search people and seize/detain things (without warrant). Often controversial – invasion of privacy/space. Can also be confronting or embarrassing in public. NSW police can stop and search where they ‘believe on reasonable grounds’ that they are carrying anything stolen or used in commission of an indictable offence, a prohibited plant or drug, or a dangerous article in a public place. Police may search a person’s body, bag, clothes, generally with suspect cooperation. They may also ‘pat down’ to reveal concealed objects. Can also request to open mouth or shake hair.

Powers/rules differ where they involve search of premises, search on school grounds, search of a person in custody or strip search. The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) also contains procedures for personal/strip searches to main privacy and dignity. Some searches may require warrants. In Darby v Director of Public Prosecutions (2004) NSWCA 431, Darby was approached by a sniffer dog that touched its nose on Darby’s trousers outside his genital area directly, and after a police search was found to have cannabis and MDMA. The magistrate ruled that the dog making contact with Darby constituted an unlawful search as police must make a reasonable judgement to search and the dog could not do this.

* Use of warrants: A warrant is a legal document that grants police certain powers i.e make arrest, conduct search, seize property, phone tap etc. Warrants are needed for search too i.e sniffer dogs in public places – provides additional protection for citizens against misuse of power. Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) sets out the circumstances where a warrant can be used. Police must provide reasons when applying for a warrant. Emergency warrants can be obtained over the phone i.e at night when magistrate unavailable.

Police require a valid warrant before they can enter/search premises without owner consent. Police must identify occupier and give a reason for the search and a copy of the warrant. Video is also used to ensure guard against claims of improper procedures. Police may remove items relevant to investigation. They may be returned if legal/to rightful owners etc. Warrants have an expiry and outline what police are searching for and their powers.
Arrest
Police may require a person to attend a police station if under arrest. If procedures of arrest are not followed, the entire case may be jeopardised. The conditions under which police may arrest are contained in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and include: * Catching a suspect committing an offence * Believing on reasonable grounds that a suspect has committed/is about to commit an offence * Where the person has committed a serious indictable offence for which they have not been tried * Possessing a warrant for that person’s arrest
Arrest warrants require police to justify their suspicions based on reasonable evidence to bring the suspect before the courts. Warrants provide a judicial safeguard against misuse of police powers of arrest, but they should only be used as a last resort, not as means of furthering an investigation. For a legal arrest, police must state to the person that they are under arrest, and the reason. They may use reasonable force to arrest (incl i.e shooting if threatened with a weapon, but police must inform suspect they are willing to use their weapon). Using excessive force can mean the officer is charged. Once arrested, a suspect may be held for a specific period of detention before they must be charged or released.

Release or Charge
At the end of the maximum detention period the suspect must be charged with a specific offence or release unconditionally. If charged they must be brought before a magistrate for a bail hearing before their trial.
Summons
Once charged, a person is issued with a summons to appear in court. If it is serious, they may be detained and a bail hearing will be set. It is delivered personally by a court-appointed person, and states when and where to appear and the charge which must be answered to. Witnesses will also receive a summons to give evidence. Failure to attend could result in fines, or being arrested and charged.
Bail
In more serious matters the accused may be detained at the police station and fingerprinted/photographed before going to a bail hearing. Here, the authorised officer decides whether the accused should be released on bail or remain in custody until trial. Bail is the temporary release of someone awaiting trial on conditions such as a lodgement of a specified sum of money as a guarantee. Bail can be an upfront payment of conditions of arrests and fines for not showing. It can also be in the form of surety where someone else agrees to pay for the accused and the money is forfeited if the accused does not arrive.
Bail is difficult to obtain for certain offences (violent etc) - community may be at risk. Also unlikely to be granted where fleeing is likely (another state/country). Restrictions have also been added to the Bail Act 1978 (NSW) against granting bail for certain offences (drug trafficking, serious domestic violence. Known as the ‘presumption against bail’ – accused must prove why bail should not be refused…but is controversial – denying bail can have severe impacts (extensive custody periods before trial verdict) – risk if accused is found not guilty.
Remand
If bail is denied, the accused is held in remand – usually sought against people who have committed violent crimes, dangerous criminals, repeat offenders or flight risks. Level of security in remand also determined by these factors. They remain in remand throughout the trial and until sentencing unless trial finishes. If found guilty, time in remand is taken off sentence.
Detention and interrogation and rights of suspects
The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) sets out conditions for detaining a suspect for questioning – he/she may only be detained for 4 hours before being charged or unconditionally released. A warrant to extend this by 8 hours can applied for to a magistrate. Rest periods are not counted in these 4 hours, and include: * Transport from point of arrest to police station * Waiting for law enforcement officers to arrive to conduct interview * Waiting for legal practitioner, family member, guardian or interpreter to arrive * Time required by suspect to talk to friend, relative, lawyer * Medical treatments for person in custody * Eating, showering, toilet use * Recovering from drug/alcohol effects * Taking part in identity parade * Charging procedures
As soon as suspect is in custody he is interrogated. Police must issue a caution (orally or in writing) advising them of maximum times, and that they ‘don’t have to say or do anything but anything said/done may be used in court’- right to silence. Any suspect under 18 has the right to have an adult present. If the suspect lies about their age and is over 18 and the interrogation begins, evidence is admissible. Interview is recorded on video and two audiotapes – one for police records, one for defendant.

3. Criminal Trial Process
Court Jurisdiction (Criminal Courts)
After a formal charge has been laid a hearing/trial takes place in an appropriate court, determined by: * Seriousness of the matter (summary/indictable offence) * Matter being heard for first time or an appeal * Nature of the offence – some courts/divisions hear particular types of offences * Age of accused (esp. under 18 or over 18) * Type of hearing (bail, committal, trial) * Whether the crime is under state of federal law
The court hierarchy is the order of courts – lower courts deal with less serious offences, higher courts deal with more serious offences and appeals. Also different streams of courts i.e NSW offences heard in NSW courts. If related to a federal offence, it is usually prosecuted by the Commonwealth Director of Public Prosecutions. The Judiciary Act 1903 (Cth) gives state and territory courts power to hear federal criminal offences in a similar manner to state laws.
The authority for a court to hear a matter for the first time is its original jurisdiction, defined in the relevant court act i.e Local Court Act 2007 (NSW). The authority to hear court from another court is the court’s appellate jurisdiction. Each court is responsible for various duties:

The criminal court system in NSW operates under the following hierarchy:
Lower Courts * Local Court of NSW - First point of call for most criminal matters, and can hear civil matters up to value of $60,000. The Local Court Act 2007 (NSW) sets out jurisdiction/operation of the Local Court of NSW. Sits as many different locations, and known as Court of Petty Sessions. Has jurisdiction to deal with summary offences and conducts committal proceedings to determine whether or not indictable offences have enough evidence to proceed to higher courts. Can also hear indictable offences triable summarily if the accused consents. No jury, tried in front of magistrate only (Lawyer or judicial officer appointed by Governor of NSW), called “Your Honour”. Offers advantages over other courts – matters heard/determined faster, and hearings cheaper. However, they cannot conduct jury trials or hear appeals, and have sentence limits. Called Magistrate’s court in ACT. Sits on many places. * Coroner’s Court – Specialised local court, deals with cause and manner of a person’s death, as well as fires/explosions where property is damaged or a person is injured. Powers outlined in the Coroner’s Act 2009 (NSW). Role of the coroner is to determine identity of deceased, and date, place, manner as well as medical cause of death. Information from medical practitioners and police relied on. May investigate disappearances, deaths where a medical certificate is not issued or deaths in suspicious circumstances i.e: * Violent/unnatural way or sudden death * After an accident (up to one year and one day) * In police custody or in a prison/detention centre * While receiving care or medical treatment or within 24 hours of administration of an anaesthetic.
The Coroner’s Court will conduct a coronial inquest – court hearing where coroner considers information to help determine manner + cause of death. May also conduct autopsies to determine cause of death + find evidence (drug and toxicology reports, bullets, DNA samples) for future use. * Children’s court – Est. 1987 under Children’s Court Act 1987 (NSW). Specialised court, deals with care and protection of children and criminal matters with people under 18yrs at the time of offence. Is a closed court – magistrate with no jury and no public to protect identities. Magistrates trained to deal with youth matters – proceedings, formalities and available sentences are different from other courts. * Land and Environment Court – Specialist court responsible for interpreting and enforcing environmental law n NSW. Deals mainly with civil/administrative disputes related to environmental planning (i.e zoning of parks) but can hear criminal offences i.e illegal polluting or dumping. Can only hear summary offences (no jury). Prosecutions usually by NSW Environmental protection agency (EPA)
Intermediate Courts
District Court of NSW – Est. under the District Court Act 1973 (NSW). Trial court – judge (control proceedings, decide sentence, decide on questions of law) and jury (of 12, to determine guilt). In contrast to Local Court where matters heard by only magistrate. Also has appellate jurisdiction from lower courts. Hears serious criminal matters (everything except murder and treason) and civil matters up to $750,000. Sits in populated locations. Involves significantly more formalities, matters take longer than Local Court and costlier to both sides – thus reserved for more serious indictable offences Types of matters dealt with by DCNSW: * Offences Against the Person - manslaughter, sexual/indecent assault, assault occasioning bodily harm/ of a police officer * Property Offences – Larceny, robbery, embezzlement, break and enter, steal * Drug offences – supply, manufacture or production of prohibited drug * Driving offences – Dangerous/negligent driving causing death/bodily harm.
Superior Courts * Supreme Court of NSW – Hears most serious criminal offences and civil matters beyond intermediate/lower court jurisdiction, constituted under the Supreme Court Act 1970 (NSW). Sits in Sydney, but matters heard in regional centres if needed. Matters in its original jurisdiction: * Murder, manslaughter, attempted murder * Major conspiracy + drug related charges * Commonwealth prosecutions for serious breaches of the Corporations Law
Criminal matters heard by judge (“Your Honour”), and jury of 12. Has highest level of formality, cost and most severe sentences. Has appellate jurisdiction for criminal appeals from Lower NSW courts. Appeals also heard in CCA. * Court of Criminal Appeal – Appellate branch of SCNSW. Highest court for criminal matters – hears appeal from a person convicted/sentenced by District Court or Supreme Court. Also appeals from Land + Environment Court. Appeals usually heard by 3 Supreme Court judges (majority prevails). Significant legal issues make this extend to 5. Grounds for appeal to the CCA include a question of law/fact or a challenge to severity/adequacy of sentence. Highest court of appeal – high court must grant permission to appeal from state/territory courts.
Federal Courts
Commonwealth offences heard in state/territory courts, which exercise federal criminal jurisdiction under the Judiciary Act 1903 (Cth). Commonwealth offences prosecuted by Commonwealth DPP (offences incl drug importation, money laundering, corporate law, tax, social security fraud). Commonwealth criminal offences are either summary or indictable and heard in corresponding state/territory court. * High Court of Australia – Highest court in court hierarchy, mandated by section 71 of the Constitution of Australia and constituted under the Judiciary Act 1903 (Cth). Has original jurisdiction in limited Cth matters but has appellate jurisdiction from all state and territory supreme courts – in NSW from the CCA of the SCNSW. Also deals with cases concerning interpretation of the constitution and the constitutional validity of laws (incl criminal laws). Only hears matters on appeal where it grants leave – for questions of law of public importance, court conflict or in the interests of justice.

* Federal Court of Australia – Superior court in Federal hierarchy, deals with most civil disputes governed by federal law and some summary criminal matters. Has al appeal division called the Full Court comprising three judges. Original jurisdiction is matters arising from Commonwealth legislation (i.e trade practices, native title, intellectual property, industrial relations). Has appellate jurisdiction from Federal Magistrates Court and also appeals from the SC of the ACT and SC of Norfolk Island, and finally from State Supreme courts in some federal matters.

* Family Court of Australia - Specialist court for family law matters. Covers all states except WA. Established by the Family Law Act 1975 (Cth), commenced in 1976. Also uses Family Law Regulations 1984 and the Marriage Act 1961. Has jurisdiction over all marriage-related (validity, nullity, divorces, residence, contact, maintenance, child support and property issues) cases in all states/territories (except WA which has its own family court). However, no avenue of appeal from FCWA – so no appellate jurisdiction. Appeals from first decisions of the court lie to Appeals division (full court of family court). From here, only avenue of appeal is the HCA.

* Federal Magistrates Court of Australia – Lower court for commonwealth matters, established by Federal Magistrates Act 1999 (Cth). Created to deal with increasing workload of the FCA and Family Court by hearing less complex cases – now hears over 70% of applications filed in federal courts. Deals mostly with bankruptcy (92% of total bankruptcy cases in 2004-05) and migration. Has original jurisdiction on remittal from the Federal Court under the Administrate Decisions Judicial Review Act, and hears appeal from the Administrative Appeals Tribunal.
The Adversary System
The criminal justice system is based on an adversary system – where two opponent sides (‘adversaries’) present their case to an impartial judge and/or jury. Applies to both criminal and civil but more controversial in criminal law – where the judge/jury is an impartial observer who determines sentences/guilt. Inherited from English Common Law system.
An alternative is the inquisitorial system where a judge/group of judges investigate the case or call for evidence of testimony that is not used. Versions of this used overseas and also in Australian coronial inquests and royal commissions. Supporters claim it is fairer – each side can present their case, and less prone to bias/abuse by the official (i.e judge). Opponents argue competition is not equal – resources, skill, knowledge, and impartial judge/jury cannot request further evidence. Complex technical cases may also be misunderstood, and jury’s reasoning on decision not disclosed.
Legal Personnel in a Criminal Trial
Criminal trials often involve many participants in various areas of the case. Non-legal participants include the accused, any witnesses called to testify and the police responsible for investigation. The legal personnel involved are divided into 3 sections:

1 – Judges and Magistrates
These are judicial officers who preside over court cases & make determinations based on evidence. They are legally qualified professionals who have considerable experience in the law. They ensure fairness and equality. Whether a case is heard by a judge or magistrate depends on the court. * Magistrates – Preside over Local Court hearings (summary proceedings and indictable offences triable summarily). Specialised magistrates also hear cases in Children’s court. They oversee proceedings and make a determination based on evidence – guilt and sentence. They also conduct committal hearings for indictable offences and usually hear bail proceedings * Judges – Preside over intermediate and superior courts (District, Supreme). Oversee proceedings, maintain order and ensure procedures are followed. Make decisions about points of law and give instructions to the jury (to make sure they understand proceedings and evidence). Once jury reaches a verdict, judge hands down sentences and rulings. If no jury is present, judge makes a determination.
2 – Prosecutors
In criminal trials the state/crown is represented by a prosecutor whose job is to prosecute the offender and obtain appropriate sanction/punishment for an offence. There are public prosecutors and police prosecutors. * Police Prosecutors – Police undertake an intensive and exhaustive investigation of the matter and gather all evidence against the accused. Police often give testimony to aid the prosecution’s case. Most summary offences (Local Court and Children’s Court) are usually prosecuted by police prosecutors – members of the NSW Police who are trained to conduct prosecutions. * Director of Public Prosecutions – The NSW office of the DPP prosecute indictable offences and some summary offences. They also conduct some committal proceedings for indictable offences. The DPP is an independent authority that works on behalf of the NSW Government. Prosecutors are barristers or solicitors, who prosecute the case and gain a conviction verdict using evidence gathered by police. In court, they ask questions of the witness and draw truth from evidence + testimony given.
DPP does not investigate, and acts independent of the government in deciding which matters to prosecute – means they act independently and are not influence by political/public pressure, cases being prosecuted on their merits. Decision to prosecute depends on: * Whether the evidence is sufficient to establish elements of the offence * Whether the evidence is sufficient to gain a conviction by a reasonable jury * Discretionary factors to determine public interest – seriousness of the offence, special circumstances of the offence/ accused/victim, the need to maintain public confidence, length and expense of the trial, and likely outcome.
3 – Barristers and Solicitors * Solicitors - A charged person with an offence can conduct a solicitor for legal advice (on the charge/offences, trial procedures, police interactions) and defence advice. Solicitors may specialise in criminal law or areas of criminal law. A solicitor may also represent the accused (usually in Local Court), or engage a barrister (higher courts * Public defenders – Barristers whose role is to provide legal advice on the likely case outcome and to present that case. Barristers who appear in serious criminal matters for an accused who has been granted legal aid are called public defenders. They are paid public barristers who have similar duties to a private barrister. Briefed by a private solicitor, the Legal Aid Commission or a community based legal group

Pleas and Charge Negotiation
As the trial process proceeds the accused must choose a plea (guilty or not guilty). Recording ‘no plea’ is registered as not guilty. Plea has a large impact on charges – guilty plea means no witnesses and jury – immediate sentencing or committal for sentencing in a higher court.
A not guilty plea means the case is defended in court – takes time (trial date set) and bail hearing set. If accused is found guilty, this may impact sentencing. Plea bargaining/charge negotiation is a tactic used whereby the accused agrees to plead guilty for a lesser sentence or plea guilty to have other higher charges withdrawn. Can be conducted in many stages of the criminal process and saves a possibly expensive case for the prosecution. Plea bargain cannot guarantee a particular sentence (judge determines it based on offence/sentencing guidelines) but it is taken into account. Some arguments for and against plea bargaining: * Decreases costs and time delays (beneficial to all parties) * Increase rate of criminal convictions * Conviction on a lesser charge better than no conviction at all * But; Crimes may go unpunished or crimes insufficiently punished * Accused may plead guilty to a crime for which they are innocent * May lead to bullying/manipulation of the accused to forfeit right to trial * Prosecution may threaten more serious charges to intimidate the accused to plead guilty to a lesser charge.
Legal Representation incl. Legal Aid
A defendant has a right to a fair trial – and so legal representation is necessary to assist an unqualified person to defend themselves. The High Court recognised this in its 1992 decision Dietrich v The Queen which established a right to legal representation. Access to justice is crucial, especially in criminal cases where the consequences of inadequate representation can be high.
Quality of legal services varies and good barristers may be expensive. An accused can also represent themselves, but due to court complexities this is not advised unless it relates to a very minor matter – courts prefer representation to ensure a fair trial. For those who cannot afford proper representation, the NSW Government created the Legal Aid Commission (est. 1979) under the Legal Aid Commission Act 1979 (NSW).
The Commission provides legal assistance to the socially and economically disadvantaged to ensure equitable access to the law – thus protects people’s rights in the legal system and improves access to justice. Legal Aid NSW accessed by disadvantaged in society (women, AATSI people, disabled persons, financially disabled), providing free brief legal advice sessions. Defendants are means tested (assess the defendants income and assets). For criminal matters, the merits/likelihood of success of the case is irrelevant. Not all matters covered by Legal Aid NSW (specific areas of law only) – and they provide a legal representative or contribute towards the cost of a private lawyer. Legal aid is not completely free – in most cases a contribution must be made by the user. Legal Aid NSW funded by Commonwealth and NSW Government and the NSW Law Society – but funding is limited and often inadequate to meet demand, and thus some people who need it are unable to receive it.
Burden and Standard of Proof
It is the responsibility of the prosecution to prove guilt of the accused as they are innocent before proven guilty; this is the Burden of Proof. The prosecution must also meet the standard of proof for criminal matters: the case must be proven beyond reasonable doubt. These are essential are essential to criminal proceedings and essential in achieving justice in criminal law. Criminal law standard is much higher than civil law standard (which requires balance of probabilities where one explanation is more likely than another) due to high penalties/consequences for false decisions.
Generally the DPP will not bring a case without feeling the jury will be convinced. Criminal trials use resources so it is essential they are winnable. If any juror is not convinced, the standard of proof has not been met.
Use of evidence, including witnesses
The use of evidence in a case if bound by the Evidence Act 1995 (NSW) and includes various complex rules. For admissibility, it needs to be relevant to the case and legally obtained – illegally obtained evidence is not admissible unless specially deemed ok by a judge. Any further evidence that arises from illegally obtained evidence, even if that further evidence is legally obtained, can be ruled inadmissible as ‘fruit of the poisoned tree’. Evidence is also inadmissible if irrelevant or just opinion (except for that of an expert/professional).
For a case to go to court, prosecution needs to ensure a body of evidence is available. Evidence can be real evidence (physical i.e tapes, DNA, photographs or exhibits such as weapons, clothing) documentary evidence (documents) or witness testimony. Witnesses can be called by prosecution or defence. May be someone who saw crime or has relevant knowledge. Anyone who witnessed a crime/interviewed by police can be subpoenaed (subpoena = formal letter to attend) to show in court. If ignored, contempt of court charges can result.
A witness takes an oath and is asked a series of questions by prosecution and defence. Rules determine the order and type of questions – information must be factual first hand knowledge or eye-witness testimony and often can be supported by an earlier statement – lying in court renders them guilty of Perjury.
Finally, an expert witness can be a person who has studied some element of the evidence (i.e DNA, blood spatter, hand writing) as an independent expert who provides testimony on their expertise and give an interpretation or judgement.
Defences to Criminal Charges
A defence against a charge in court usually involves denial, justification, or excuse for the actions, mostly revolving around the mens rea. Legal defences help to achieve justice by allowing the court to consider mitigating circumstances – limits risk of unjustified sentence (i.e mental illness or involuntary behaviour). Whether a defence succeeds is up to the judge/jury based on the presented evidence. Defences may be complete or partial – charge or sentenced reduce/dropped.
Complete Defence – Used to justify actions, and if successful results in charges being dropped, or an acquittal if by trial. * Mental illness or insanity is available where the accused can prove they were mentally incapacitated when the offence was committed Relates to mens rea¸ in suggesting they were not responsible. Difficult to prove fully, but success results on “not guilty on the grounds of insanity” * Involuntary behaviour or automatism suggests the action could not controlled i.e epilepsy. Thus, act was involuntary & mens rea cannot established. * Mistake is not generally a defence, and difficult to prove, but if it can be shown the act was an honest/reasonable unintentional mistake the mens rea may not be present * Self-defence or necessity is used to show that the act was for defending themselves or another person, while attempting to prevent a crime or in defence of property. Using this can be risky as definitions of reasonable force vary. In R v Zecevic (1987) 162 CLR 645 it was held that the defendant must use ‘proportional and reasonable force’ to defend themselves. Zecevic’s case stemmed from a parking dispute. When a defendant uses this defence, the jury is compelled to acquit or find the defendant guilty – but rules apply for some offences i.e murder. * Under the duress defence, the accused must be able to prove that they committed a crime against their free will – pressure applied by someone else i.e life threatening situation. In R v Williamson [1972] 2 NSWLR 281 the defendant disposed of a body while under a death threat – constituted duress as a defence. * Consent is another defence most often used in sexual assault cases to show that the victim actually consented. However, not valid for some crimes i.e murder as euthanasia.
Partial defences to murder – Partial defences that relate specifically to murder that provide acquittal or mitigating circumstances i.e to reduce sentence * Provocation is where the defendant claims their actions were a direct result of the other person’s actions. Is controversial as suggests some level of responsibility. Abolished in Victoria, WA and Tasmania but still exists in NSW. For this to work, it must be shown that in the same circumstances any ordinary person would have been provoked into carrying out the crime. In NSW it can only be used when reducing murder to manslaughter. In R v Camplin [1978] AC 705 a 15 year old boy successfully argued provocation after he hit his uncle with a frying pan and killed him. He had just been sexually assaulted and was being mocked about the incident – the court decided that a reasonable person would seek to exact some revenge in the form of grievous bodily harm. * Diminished responsibility or substantial impairment is a defence where the defendant must prove they suffer a mental abnormality that caused them to carry out the crime i.e low IQ/mental retardation. More widely used than insanity plea – easy to prove. Cannot be used as an excuse when drunk/under influence of drugs.
The Role of Juries (incl. Verdicts)
Juries are important – used to hear most indictable offences in NSW where not guilty plea is entered, in district and supreme courts – local court doesn’t have jury jurisdiction. Rules for juries found in Jury Act 1977 (NSW). A jury is usually 12 citizens who determine guilt or innocence based on presented evidence and come to a verdict, mostly through consensus.
Challenging Jurors
Both the prosecution and defence can challenge either the entire jury panel or select jurors. Both sides have a certain amount of peremptory challenges of prospective jurors – which is a strike/DQ without a reason. Challenges can be difficult – only names given, and so peremptory challenges based on appearance (age/gender/race/clothing/physique etc). Challenges for cause are another type of challenge, based on the person not being qualified to serve on a jury – ineligible, disqualified or suspected of bias i.e juror acquainted with defendant or victim of similar crime.
Eligibility for Jury Duty
Any Aus. Citizen who is 18+ is eligible to sit once enrolled on the electoral roll. It is difficult to gain exemption from jury duty – and it can be an inconvenience/burden. Exemptions can be sought by over 65’s, pregnant women or those who care for children full time. Some people are ineligible i.e non English speaking, emergency services staff, disabled people, criminals, members of legal profession.
Jury Role
Jurors sworn in before a case, and instructed by judge. They’re permitted to take notes, and cannot discuss the case except with fellow jurors when they are all together. Can also ask judge for clarification. They are to remain alert, unbiased (media and personal beliefs) and impartial and decide solely on presented evidence. Each jury has a foreperson who speaks for the jury. No time limits when jury is deliberating.
Verdict
Guilty/not guilty verdict presented – can take a short or long time. A hung jury is one that cannot reach a unanimous verdict – case is dismissed and a retrial ordered. A hung jury represents significant strain as time/cost consequences for prosecution are high, and may extend remand time for accused, of a crime they may be acquitted of. Victims also may suffer repeated anguish. 2006: Jury Act 1977 (NSW) amended with Jury Amendment (Verdicts) Act 2006 (NSW) allowing for majority verdicts (11 to 1) where reasonable deliberation time has been given and the court is satisfied a unanimous verdict won’t be reached. Does not apply to Commonwealth offences – unanimous offences protected for those under s 80 of the Constitution of Australia.
Arguments for a majority verdict are rendering rogue/unreasonable jurors ineffective. Arguments against majority include discounting the possibility of finding a reasonable doubt decision if one juror disagrees, disagreements are rare and that majority verdicts may change deliberations from the beginning of the case. In 2008 BOCSAR conducted a study (Juror understanding of judicial instructions in criminal trials) which found (from 1200 jurors) found that the phrase ‘beyond reasonable doubt’ had different interpretations. 55.4% believed it meant ‘sure of guilt’, 22.9% believed it meant ‘almost sure’, 11.6% thought it meant very likely and 10.1% thought it meant pretty likely. 94.9% of jurors believed they understood instructions, and 47.2% said they understood completely. In 2008, the rate of offenders found guilty at jury trials in NSW was 84.7%.

4. Sentencing and Punishment
Statutory and judicial guidelines
Sentences given out follow guidelines, primarily set by Crimes (Sentencing Procedure) Act 1999 (NSW) – sets out purposes/types of penalties/guidelines. Limits/guidelines also found in many statutes. Maximum penalties decided by parliament/set in statutes – no judge can override this. i.e 19A of Crimes Act 1900 (NSW) describes max penalty as life imprisonment and s. 611 sets max penalty for sexual assault at 14 yrs. Maximum penalties rarely used except extreme cases – prison sentence not imposable unless no other penalty appropriate – judicial discretion on case-by-case basis. Judicial officers guided by similar previous cases in sentencing. Crimes (SP) Act also allows attorney-general to apply to court for guideline judgement for particular offences, useful for determining future sentences. There is also mandatory sentencing – removes discretion and must be set for a particular offence or repeat offences. Introduced in NT+WA in 90s as a harsh deterrent – ‘three strikes and out’ policy. Opponents claim these are unduly harsh – not considering circumstance disadvantages certain ethnic and socioeconomic groups. NT mandatory sentencing later removed – found to cause large rise in prison population with little deterrence + indigenous overrepresentation.
The purposes of punishment: deterrence (specific and general), retribution, rehabilitation, incapacitation
Sentencing is the traditional means by which the state punishes offenders for crime. The purposes for which a court may impose a sentence on an offender are outlined by The Crimes (Sentencing Procedure) Act 1999 (NSW): a) To ensure that the offender is adequately punished for the offence b) To prevent crime by deterring the offender and other persons from committing similar offences c) To protect the community from the offender d) To promote the rehabilitation of the offender e) To make the offender accountable for his or her actions f) To denounce the conduct of the offender g) To recognise the harm done to the victim of the crime, and the community.
Deterrence
Deterrence in law refers to the hope that a fear of punishment may help prevent future offences. Seen in R v Peel [1971] 1 NSWLR 247 – where Mr. Peel’s sentence was increased upon appeal from $400 fine to three years prison, as a deterrent for importing a large amount of hashish. The initial sentence was not enough of a deterrent as argued by the prosecution. There are two types of deterrence: * Specific Deterrence – Punishment against an individual offender, aiming to deter them from committing crime in the future * General Deterrence – Punishment attempting to make an example of an offender in order to send a message to the community, that the law is serious about punishing people about this offence
The effectiveness of general deterrence is debatable. In New Zealand from 1924-1962, the death penalty abolished, reinstated and abolished again, with much publicity, yet there was no significant impact on the murder rate in this period.
Similarly with specific deterrence, there is little evidence that the higher penalty will reduce chances of reoffending. There is also no positive variation in the reconviction rate between a lesser sentence of a fine versus a more serious term of imprisonment.
In 1988 the ALRC recommended that deterrence not be used as a sentencing objective, and punishment should be based on the seriousness of the offence committed. As a consequence, deterrence was not included as a purpose in the Crimes Act 1914 (Cth), but remains in NSW.
Retribution
Refers to the punishment considered to be morally right/deserved based on the crime. It assumes that some good comes from inflicting hardship on the offender for their crime – related to the concept of revenge, but is conducted through the courts, and done for society. It is the main justification for inflicting punishment on an offender. The retribution should be proportionate to the crime, but not violent or physically harmful to the offender. Related to Crimes (Sentencing Procedure Act) as above, and purposes of retribution include: * Ensuring the offender is adequately punished for the offence, and according to the severity of the offence * Make the offender accountable for their actions & denouncing the conduct * Recognising the harm to the victim and the community
Victims no longer take personal revenge. A judge will take into account the effect of the crime on the victim/their family. An example was R v AEM (Snr); R v KEM; R v MM [2002] NSWCCA 58, where three teenagers were sentenced to particularly long terms of imprisonment due to the horrific nature of their sexual assault.
Rehabilitation
Aims to prevent recidivism (reoffending) by attempting to alter the views of the offender, and eliminating factors that contributed to the conduct, thus encouraging renunciation of the crime. Making the offender accountable, denouncing the conduct and promoting rehabilitation are all relevant to this concept. May include drug counselling, drug rehabilitation programs, alcohol programs, or anger management courses. Others may aim to provide the offender with skills to integrate into society (educations/skills courses). Such sentences may be specifically imposed or incorporated into other sentencing options. Will rarely be used for very serious crimes, but often used for drug/alcohol related crimes
Incapacitation
Relates primarily to the third purpose under the Crimes (Sentencing Procedure) Act in protecting the community from the offender, by attempting to make the offender incapable of reoffending. Penalties under this include home detention, community work, licence cancellation, and the most common – imprisonment, which is also the most effective. Whilst none can completely prevent further offences, their purpose is to restrict as much freedom as necessary to prevent the likelihood of the offender reoffending. One of the dangers of this is the uncertainty in relation to reoffending, but cases such as serial murderers or serial drink-drivers are undoubtedly classed under this as a sentencing outcome.
Factors affecting a sentencing decision – aggravating and mitigating circumstances
A magistrate may take into account, on top of statute, relevant case law and the purpose considerations, individual factors at their judicial discretion. Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) sets out numerous factors for judicial officers to consider, including: * Aggravating factors – Circumstances that make the offence more serious – can lead to an increased sentence (more below) * Mitigating factors – Circumstances that make the offence less serious – can lead to a reduced sentence (more below) * Any objective or subjective factor – that affects the relative seriousness of the offence (objective factors = circumstances of the crime, while subjective = circumstances and state of mind of the offender) * Whether the accused pleaded guilty * Whether the offender assisted/was compliant with law enforcement agencies * A victim impact statement from victims of the offence
Aggravating and mitigating factors require a careful balance, and usually involve arguments from both the prosecution and the defence. Not all factors mean a changed sentence, and their relevant importance will depend on the circumstance of each case i.e for younger offenders, personal circumstances might be important in the possibility of rehabilitation, but if the offence is very severe it might outweigh these.
Aggravating factors
These are factors that make the offence more serious/severe. Can relate to the way the offence was committed, the characteristics of the victim(s) or factors relating to the offender. Some aggravating factors include: * Offence – If the offence involved violence, gratuitous violence, cruelty or weapons, or any threat of them; if it caused any injury/harm/damage; if it was motivated by any hatred or prejudice; if it was committed in company or involved some type of organised crime * Victim – Vulnerable victim (elderly, young, disabled); victim targeted for occupation (police officer, judicial officer, teacher, health worker); if there were multiple victims * Offender – if the offender abused a position of trust/authority (i.e doctor -> patient, or teacher -> student). If the offender is a re-offender or has prior convictions.
Mitigating factors
These are circumstances that may work in the defendant’s favour by explaining the cause of their conduct. They are usually subjective factors about the mind of the accused or their behaviour, and can include evidence that: * The offender is of a good character (e.g character references from teachers/employers), or does not have prior convictions * The offender is youthful or inexperienced and was easily led * The offender pleaded guilty and assisted police * The offender has shown honest remorse (e.g by making some compensation or indication) or has good prospects of rehabilitation and is unlikely to reoffend * The offender was somehow provoked or was acting under duress
The interplay of Mitigating factors/Aggravating factors was seen in McCartney v R [2009] NSWCCA 244 where an alcohol fuelled sexual assault occurred. However, a number of character witnesses were given in favour of Mr. McCartney, and he held a steady occupation. However, the ‘life and studies’ of the victim had been disrupted due to the incident. As a result of these, he was given an initial sentence of 30 months, which was reduced to 25 months.
Role of the victim in sentencing
The victim can be directly (i.e assault) or indirectly (family of a murder victim) affected. They are involved in the criminal trial process through assisting police, testifying at trials, and submitting victim impact statements. The victim’s role can often be distressing i.e sexual assault, where confronting questions may be asked. In NSW, victims of crimes are guaranteed certain rights under the Victims Rights Act 1996 (NSW). This contains a Charter of victim’s rights, which requires respect for victim’s dignity, victim’s compensation, protection from the accused, protection of identity, and certain rights to information and assistance during the criminal trial process. These are further outlined in the Crimes (Sentencing Procedure) Act 1999 (NSW).
A victim impact statement is a voluntary statement, written by the victim about the impact the crime has had on them. Allows them an opportunity to participate in the process. These are only permitted for serious offences involving violence (actual of threatened), or the death of, or any physical harm to, a person, and only if the court considers it appropriate. Presented after the offender is found guilty, but before the sentence is passed, in order to influence the final sentence. They might include physical or psychological harm, and can include medical reports, diagrams, and pictures. It is often argued that they are irrelevant as the level of love towards a family member could impact the statement given. However, they provide an outlet for victim grief and anger, and confront the offender.
Appeals
A person convicted of an offence and sentenced has the right to appeal their case – applying to a higher court for a review of one of more decisions made in the lower court. The Crown also has the right to appeal a case i.e where the sentence is too lenient. The appealing party is the appellant. There are two types of appeals:
>> Appeal against conviction – The appellant argues they did not commit the offence for which they were found guilty. It is difficult for this to succeed, and will usually involve an argument that there was a legal error at law in the handling/prosecution of their case i.e in the evidence admitted or in the instructions of the judge to the jury. If successful, the appellant may be acquitted or the case may be ordered for retrial.
>> Sentence Appeal – The appellant argues against the severity of the sentence received, or the leniency given (when appealed by the prosecution). They can be made individually or with an appeal against conviction. The judge can set aside a sentence, vary a sentence (a risk for the appellant if increased) or dismiss the appeal.
The type of appeal allowed will depend on the court the offender was tried in, time limits and process requirements. Any person sentenced in local court can appeal to the District court under the Crimes (Appeal and Review) Act 2001 (NSW). A person may also appeal directly to the Supreme Court if it is on a question of law, but otherwise only by seeking the permission of the Supreme Court. The district court usually conducts a rehearing of all evidence by reading the documents from the initial hearing.
A person sentenced in District/Supreme courts can appeal to the court of criminal appeal. This will only be successful if the person can show there was a legal error. This can include imposing a sentence that was too severe/lenient as seen in R v AEM (Snr); R v KEM; R v MM [2002] NSWCCA 58 where the Crown appealed to the CCA and as a result, sentences were increased from 5 and 6 years to 13 and 14 years. The final court of appeal is the High Court, which an appellant needs to seek the permission of to appeal to. This is only granted in rare circumstances (constitutional interpretation).
Types of penalties
No Conviction recorded – For less serious offences/first time offenders, a judge might choose not to record a conviction (employment impacts etc)
Caution – A formal warning by police, used for less serious offences to avoid the court system. Often used for minors 10-18 under the Young Offenders Act 1997 (NSW) at police discretion – may involve counselling. This is kept on police record. Also the Cannabis Caution Scheme (possession etc w/ no prior conviction receives caution)
Penalty Units - $110 increments, as part of fines for crimes – set out in Crimes (Sentencing Procedure) Act 1999 (NSW).
Fine – Monetary penalty imposed for less serious offences i.e driving offences, environmental law breaches etc. Can be coupled with imprisonment i.e under Crimes Act 1900 (NSW) unlawful gambling = up to $110,00, 7 years prison, or both. Persons financial circumstances are considered.
Bond – A compulsory condition imposed on the offender for a period of time. Offender undertakes compliance for a lenient sentence. Good behaviour bond = up to 5 years, more serious penalties if breached. Bond can also be counselling/forced association/refraining from activities i.e gambling. Restricts freedoms.
Suspended Sentence – Offender enters a good behaviour bond equal to time of sentence. Sentence is suspended if offender complies with terms of GBB. Used for imprisonment up to 2 years. Breach can include reinstatement of original sentence plus added time for bond breach
Probation – Offender placed under supervision of probation officer. Must make regular contact with him/her. Imposed when danger of reoffending present, but detention too severe. Breach = returned to court, possible higher sentencing.
Criminal Infringement Notice – Sentence issued by police out of court. Issue on-the-spot fines (larceny of goods >$300, offensive behaviour, obstructing traffic). Removes burden off courts. Can be appealed in court. No conviction is recorded.
Community Service Order – Compulsory supervised work for up to 500 hrs. Court assesses what work is suitable. Punishes and shames while allowing for rehabilitation outside prison. Cost-effective and beneficial to community. 18124 (DOCS 08/09) sentenced to this.
Intensive Correction Order (Home) – Offender confined to home under certain conditions of monitoring. 175 Monthly (average) sentenced (DOCS 08/09). 24.5% increase since previous year.
Intensive Correction Order (Periodic) – Offender spends a period of each week/month in prison, and the rest of the time at home. 690 Persons (Docs June 2008) sentenced to this Forfeiture of assets – Offenders assets are taken in addition to possible imprisonment for crimes where money is ill-obtained (theft, fraud, laundering, drug trafficking, tax evasion). Under the proceeds of crime legislation – a.k.a Criminal Assets Recovery Act 1990 (NSW). Provides an outlet to target an incentive of many crimes/criminal organisation.
Imprisonment – Most severe, last resort (as defined by Crimes (Sentencing Procedure) Act 1999 (NSW)) – consider all possible alternatives. Deprives liberty, and removes person from community. Varying levels of severity incl. correctional centre, periodic/home detention. Parole period possible. Sentence imposed for each offence, served concurrently. Remand time counted. DOCS 08/09 – 10315 (Remand+Sentenced), 2568 (Remand), 90k annual cost [NSW,2009]
Diversionary programs – Diverts offenders away from traditional court programs, to target the reason for offending, assisting individual circumstances (education, medical treatment, rehab, social welfare), and drug and alcohol based crimes. Drug court made to rehab non-violent drug offenders. NSW Bureau of Crime Statistics – people who complete Drug court program are 37% less likely to be reconvicted, 65% less likely to be reconvicted for an offence against the person, 57% less likely to be convicted for a drug offence.
Alternative methods of sentencing
Attempt to target particular types of offenders –and combat issues with recidivism * Circle Sentencing is an alternative for indigenous people – Circle courts designed for repeat/serious offenders. Based on aboriginal customary law – type of diversionary program that involves a circle of community members and a magistrate sitting in a circle to discuss the offender’s crime and tailor the most appropriate sentence (has full court sentencing powers). Directly involves aboriginal people in sentencing process to make it meaningful and improves aboriginal confidence in legal system. Program objectives are being met but can improve in areas i.e improving participation and support services. * Restorative Justice involves bringing the offender together with the victim – offender takes responsibility for actions and victim can voice opinion and confront offender directly. Victims can ask questions, offender can apologise/make amends. Can be confronting for both parties. It is voluntary for both and usually accompanies traditional sentencing. Run by Restorative Justice Unit of NSW Dept of Corrective Services and involves safe + private conferencing with mediation by a facilitator. Australian studies based on youth conferencing show a 15-20% reduction in reoffending is possible. Restorative justice mainly for minor infringements or youth justice, unlikely to expand beyond this.
Post Sentencing Considerations
Once sentenced to a community based order or non-custodial service, an offender needs to be serve out those terms/conditions before returning to court to face a review of the sentence. Imprisonment, however, involves being sent to a security centre for security classification. Correctional centres managed by Corrective Services NSW. Oversees 31 centres (8 max, 13 med, 10 min) and 8 periodic detention centres.

Full time imprisonment:
- NSW centres hold 9000-10000 inmates daily. 7% female, 36% between 25-34, 20% indigenous.
- Avg daily cost per inmate $225 (80,000 per inmate per year).

Community Based Orders:
- $12 a day avg cost
- 18000 people supervised on any day under these.

Periodic Detention:
- Under 1000 offenders under this
- Avg daily cost of $187.
Security Classification
Three classifications – maximum, medium, minimum, some centres accommodate more than one classification. Offenders classified according to seriousness of crime, prospects for rehabilitation, and display of good behaviour during previous sentences. Maximum security centres (Goulburn Correctional Centre for men/Silverwater Women’s correctional centre) hold offenders with serious crimes whose escape would be dangerous to the public. Medium security prisons (Tamworth Correctional Centre) inmates can move around freely within high walls/fences. In minimum security centres (Silverwater correctional centre): fewer barriers to escape, inmates move around freely
Protective Custody
Provided to offenders vulnerable to attack from other prisoners i.e offences against children or police/politicians. Correctional services have a duty of care over offenders.
Parole
Conditional release of a prisoner from custody after the completion of the minimum terms of the sentence; the non-parole period. Provides incentives for rehabilitation with prospect of early release – believed to increase likelihood of reform. When released, they are under direct supervision of parole officer, who they report to, and whom make enquiries in the community to ensure parolee is meeting conditions of early release i.e good behaviour bond, not reoffending during parole period, gaining employment or avoiding certain company/areas or even attending counselling/treatment. These assist in gradual reintegration and aim to make the offender not reoffend
Preventative and continued detention
Involves imprisonment for some type of future ‘harm’ they ‘may’ commit. Person is detained without having committed/being found guilty for incapacitation purposes or rehabilitation. Two types of preventative detention: * Post sentence preventative detention: Occurs after person has been sentenced and served that sentence * Preventative detention without charge: Can occur at any time
Highly contentious/controversial as they remove a person’s basic legal rights without due criminal process. Most severe PD is legislation targeted at individual offenders. This law was held to be unconstitutional in High Court case of Kable v DPP (1996) 189 CLR 51. However, most Aus jurisdictions have legislation enabling general powers of PD in restrictive circumstances, i.e in the controversial Terrorism (Police Powers) Act 2002 (NSW), police can detain a person for max. 14 days if they believe the suspect will engage in terrorist activity.
Post sentencing, however, is schemed under the Crimes (Serious Sex Offenders) Act 2006 (NSW) that allows continued detention – attorney-general can apply to a court for this if believed ‘to a high degree of probability’ that the offender will reoffend. Allowable purposes include to ‘to ensure safety and protection of the community’ and ‘facilitate the rehabilitation of serious sex offenders’.
Sexual Offenders Registration
The Australian National Child Offenders Register (ANCOR) and the NSW Child Protection Registry are web-based systems to assist police with registering/case management of sexual offenders. Est under the Child Protection (Offender Registration) Act 2000 (NSW), persons convicted of nominated violent/sexual offences against a child are required to register at the local police station within 28 days of sentencing/release from custody, or after being found guilty of a registrable offence in another jurisdiction. Adult offenders register for min. 8 years and juvenile offenders 4 years. Provide range of personal information and travel plans – end of 2009: over 10500 offenders registered nationally. Justified on basis of community protection but contentious due to targeting offenders beyond sentencing times and denying chance of rehabilitation – should be based on severity of crime and chance of re-offending
Deportation
Under the Migration Act 1958 (Cth) a migrant living in Aus who is not a citizen may be deported if tried/convicted of offence. Under ss 200 and 201 of the act, if a non-citizen commits an offence receiving 12+ months of custodial sentence or more in first 10 years of residence, the responsible minister for migration decides on their deportation. Is extremely serious, and can become highly publicised – controversial as they do not assist but simply remove, especially extreme if living here for many decades and no roots/support in country of origin/not speaking language, with no rehabilitation access in new country. If such a person has been found to constitute a threat to Aus security or convicted of a serious offence, they can be deported and prohibited from return.
I.E Robert Jovovic migrated to Aus at age 2 (1968), become perm resident but not citizen, and developed heroin addiction and charged with 100+ offences by 2004 (burglary/theft). Residency cancelled in June 2004 and deported back to Serbia, where he had no knowledge of the language and no working visa, prompting Serbia to declare him ‘stateless’. Found sleeping outside Aus embassy in Belgrade, Serbia, 18 months after deportation. In March 2006, he was given a special purpose visa for Aus and allowed to return – and remained stateless until granted a two year special protection visa. Feb 2008 – granted PR again. Shows influence of media.
5. Young Offenders

The law treats offenders differently if they are under 18 – different level of responsibility, or different level of protection/assistance required. This area is law is juvenile justice. NSW juvenile justice suggests factors for young people committing crimes are: * Poor parental supervision * Drug and alcohol abuse * Neglect and abuse * Homelessness * Negative peer associations * Poor personal/social skills * Difficulties in school/employment
In NSW, people under 18 represent only a small population of criminals. NSW JJ’s annual report for 2008-09 states that, for every 1000 people in NSW aged 10-17: * 13.5 had a matter finalised in a criminal court * 11 were convicted/sentenced in these matters * 3.3 given sentences requiring department to supervise them in the community * 1 was sentenced to detention
The two recognised approaches to juvenile justice (to some extent, JJ uses a combination of both): * Welfare model: Assumes crime relates to different factors (social, psychological, economic factors). Suggests there is a need to protect children/young people from the causes of crime and to assist in rehabilitation. * Justice model: Zero tolerance approach regardless of factors, emphasises punishment/deterrence over rehabilitation
Age of criminal responsibility
Reasons for treating children different from adults: * Preventing exploitation * Protection from consequences of uninformed decisions * Protecting others from being disadvantaged when dealing with a minor
The law approaches JJ with a doli incapax approach – that children under a certain age cannot be held legally responsible for their actions. Arose from inequalities of previous sentencing which did not account for age, and awareness grew that a child’s lack of experience may influence his behaviour. There is a rebuttable presumption which presumes the jury must be convinced the young offender knew his actions were “seriously wrong” not just “naughty”.
Children (Under 10 Years Old)
The Children (Criminal Proceedings) Act 1987 (NSW) lays out minimum ages of criminal responsibility, with Section 5 stating ‘no child who is under the age of 10 years can be guilty of an offence’. Thus, doli incapax is a conclusive presumption. Proving a child under 10 understood the mens rea is extremely difficult/problematic. Any reduction in this age is unlikely – reduces chance of rehabilitation by imposing sentence at such young age.
Children (10 to 13 Years)
The Children (Criminal Proceedings) Act is silent on this, and answer found in common law – rebuttable presumption of doli incapax. From 10-13 they are presumed incapable but this can be rebutted if they can show the child knew the offence was seriously wrong. Recognises the possibility of sufficient mental capacity (from evidence i.e psychiatric analysis, parents, teachers, and child’s behaviour/statements). As in manslaughter case R v LMW [1999] NSWSC 1343, where a 10 year old boy dropped a 6 year old into a river knowing he could not swim – boy eventually acquitted after much media influence, the application of doli incapax comes under scrutiny through high-profile serious cases. Some issues surrounding the doli incapax debate are highlighted by Thomas Crofts (Associate professor at Murdoch University School of Law, who states: * Opponents argue doli incapax should be removed/lessened because children today are better educated and criminal law is not as harsh as it used to be * Can be unfair, especially to victims * Makes the prosecution’s role in trial difficult as not always enough evidence to rebut doli incapax
Crofts defends it however, saying it does not stop the prosecution if there is a guilty mind
Young People (14 to 17 Years)
Presumption of doli incapax no longer applies – deemed mature enough to know wrongs, but still protected from full criminal responsibility i.e people under 16 cannot have conviction recorded against it was an indictable offence. People under 18 also have protections i.e prohibiting reporting of a child’s name (i.e LMW above), clearing of convictions if no more committed within 3 years and the matters for children being heard in the Children’s Court.
The Rights of Children when questioned or arrested
In 1997 the ALRC conducted an inquiry into young people and the law (with the Human Rights and Equal Opportunity Commission) which recommended: * Standardising minimum age of criminal responsibility across all jurisdictions (achieved in 2000) * Standardising national standards through legislation/policy for juvenile justice * Covering investigation/arrest, bail conditions, sentencing and detention * Standardising the Australian jurisdictions law with the UN’s Convention of the Rights of the Child
There is a general agreement that young people need to be afforded certain leniencies when dealing with the law as an error of judgement (esp. since easily influenced) could severely harm the youths quality of life forever. As stated in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), there are certain rules police must adhere to in relation to young people.
Questioning of Young People
Police can question/approach young people at any time as with adults i.e give ‘move on’ directions/basic search & seizure * Identification, Name and Address: Police have the right to ask for ID at any time from young and old people (and vice-versa). There are certain instances in which it is an offence not to respond: * The police suspects on reasonable grounds that the info may help them on an indictable offence committed nearby * Vehicle and traffic incidents * Offences on trains
Summary Offences Act 1988 (NSW) as with some other legislation’s apply specifically to youths, in that police can ask them for ID if they are carrying/consuming alcohol and suspected of being u18. Failure to do so can lead to a max $20 fine. * Questions and right to silence: Although police can ask questions at any time, the suspect does not under normal circumstances have to answer, even if taken to police station. This is because what they say can be used against them as evidence - better to wait for legal advice before speaking. * Right to support of a responsible adult: Under Children (Criminal Proceedings) Act 1987 (NSW) u18’s are afforded the right to have an adult present during questioning as there is an assumption that youths may not be fully aware of their rights and how to handle the police. Anything the youth says is inadmissible unless a responsible adult (parent/guardian, youth worker) is present or unless judge says to allow it. * Searches: Although most search-powers are same for adult/children, strip searches vary. Under Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) the police under no circumstance can strip search someone under 10, must have a responsible adult present from 10-18 and over 14’s decide who the adult is. No touching is allowed.
Arrest and Interrogation
Same as adults, police can arrest children if: know/believe on reasonable grounds the person has/will commit an offence, warrant for an arrest or certain conditions have been broken (bail, bonds etc). * Support person and legal advice: Immediately after arresting a youth police will attempt to find out the persons parents/guardians in order to notify them (unless this p/g poses a threat to the child). The child is also allowed an interview friend (parent, guardian, and solicitor) and over14’s get to choose the person. In R v Cortez (2002) established that custody manager must inform the youth that Legal Aid Hotline is available to them and give them opportunity to use it. * Caution of rights: As early as possible after being detained, people have the right to a caution (they must be told that they do not have to say or do anything, but anything they say or do can be used as evidence). They must also be notified of the max detention period without charge. The person must then sign a form stating that they have been cautioned (usually done by an adult for children). Problems arise as sometimes youths do not understand the technical language used in the cautions. * Detention and identification: As with adults, 4 hours max detention (further 8 hours if warrant for extension granted). People believe that the lengthy period may be too much for kids to handle and should be lowered as they may give out to duress and coercion. * Forensic procedures, photos and searches: Police can take photos and fingerprints of over14’s for the identity purposes, but for under 14’s they must apply to do so at the Children’s Court (child cannot be detained during the application). The court will consider severity, best interests of child and ethnic/background issues. No DNA of u18’s allowed without a court order. If the person is not convicted in court, then police must destroy all fingerprint, DNA, photo evidence etc.
Children’s Court – Procedures and operation
Can hear any offence other than serious indictables (ie murder, manslaughter etc go up to higher courts). They do hear committal hearings (even serious indictables) of all children offences. The CC follows guidelines set up by the Children (Criminal Proceedings) Act 1987 (NSW). No jury, magistrate only - closed court. Media isn’t allowed to report any ID of any children involved (unless allowed by court or the child is deceased). Penalties are different. Main objective is for the best interests of the child and to have them as aware as possible of what’s happening.
Children’s Court Statistics: stats from NSW Commission for Children and Young People reports: * Steady increase of children in NSW who have been involved in a finalized court matter from 2003-07, following steady decreases from 1996-03. Overall 2007 is 40% < 1996. * Since 2003, 10-14 age group has shown the greatest increase. * 1996-07 showed majority of accused’s as males, ratio of 4:1
Children’s Court Clinic: a branch of the Children’s Court established under the same act used to monitor the behavioural and psychological concerns of a youth during or after a trial.
Penalties for Children
Generally acknowledged that children have the greatest chance of rehab. Children (Criminal Proceedings) Act 1987 (NSW) guidelines state: no penalty for child can be higher than max for adults, child should be assisted with re-integration into community etc. Possible sentencing options:

Juvenile Justice Centres: Children (Detention Centres) Act 1987 (NSW). Harshest penalty available for a youth, max serve time is 2 years. Provide educational, recreational, personal development and counselling facilities to attempt rehab and reintegration into community.
Sentencing Considerations for Young Offenders: there is a general belief that courts should pay attention to things such as homelessness, poverty, social circumstances and family life when sentencing children. However this may not be the case when children act with grave adult behaviour as they may be re-offenders or commit very serious crimes in future i.e. R v Pham & Ly (1991) in which two teenagers bound and gagged a victim while committing robbery.
Alternatives to court
Young Offender’s Act 1997 (NSW) provides diversionary programs for teens. This is because the main purpose of child punishments is rehabilitation (DP’s only available for summary/indictable triable summarily. Works on principles that; least restrictive punishment where possible, children know they can seek legal advice, don’t start crim proceedings if there's an alternative way. * Warnings: informal, used for minor crimes, can be done anywhere. Police states nature and purpose of warning and records it, no conditions attached, but if teen caught doing something again would mean high chance of punishment. * Caution: formally recorded, child admits to wrong-doing and receiving of caution. Record may be used in Children’s Court if the offender re-commits, and a caution notice must be logged to the court after it has been issued.

* Youth Justice Conferences: the child admits to a crime and allows for a conference of people to assist in dealing with the matter. Designed to help offender accept responsibility/consequences in order to rehabilitate them. Those allowed at YJC’s are the offender, conference convenor, investigating official, member of child’s family, legal representation, another adult chosen by offender and specialist youth officer. Victim and support crew can also attend. A record of the conference is kept.

Effectiveness of Crim Justice System Re: Young Offenders:
Although on first sight it appears that youths today are far too loose and misbehaved, as backed up by crime rates across youths/adults, it is important to understand the circumstances of the crimes. Children can do very little to change how they are raised, the education they receive, parenting, lifestyle etc. and can be led to a path of crime.
This is recognized by the law in providing a Welfare Model in which certain leniency’s are applied to youths. Under the Children (Criminal Proceedings) Act 187 (NSW) and the Young Offenders Act 1997 (NSW), rehab is the most important concern for youths, not incapacitation.
Stats from Aust. Inst. Of Criminology: rate of detention for youths down 50% since 1981. In 2007, 10% of 6488 were given a control order when on trial in Children’s Court, whilst 900-1000 youths are in Juv. justice in NSW every day.
But in the AIOC’s 2009 study on custodial penalties against children, The Specific Deterrents Effect of Custodial Penalties on Juvenile Offenders, there was no difference in the rate of re-offending between the two groups, suggesting custodial penalties should be used very sparingly and rehab is a key goal.
The Welfare model has been quite successful in assisting youths, but in some cases the Justice Model has been prevalent and indirectly caused harm to youth rights. Media Clip Below.
“Bail law means jail for more juveniles” SMH 2009: it was found that of youths placed on bail for an offence, whilst 34% of those who broke their bail conditions by committing another offence (fair enough), 66% of those who broke their bail conditions did so over petty matters such as curfews and not sleeping at a parent/guardians house etc. All teens who break bail laws are immediately sent back to court, which means that rather than rehabilitating, many youths are being handed out harsher punishments because of clauses in the amended Bail Act 1978 (NSW).
6. International Crime

Categories of international crime
Due to the concept of state sovereignty in which individual states are allowed to govern themselves and create their own laws in whichever way they see fit, most laws in different jurisdictions only reflect the values/beliefs of the state itself. But as time has gone on, more and more states have realised the necessity to come together with information and jurisdictional powers when a crime is either universally condemned or involves crossing borders. Fundamental to the idea of international law is co-operation between different states. Categories include:
Crimes Against the International Community
These crimes are often the most serious as although they may occur domestically, they are seen as punishable by an intl. community for their severity. No specific list of crimes exists, but almost always incl. things such as genocide (attempt to destroy all/part of ethnic, national, religious group etc) and war crimes. The reason for having a UNIVERSAL JURISDICTION is because some states are unwilling/unable to prosecute the offender as they are in a position of power, meaning the rest of the intl. community must step in to prosecute them.
International Criminal Court (ICC): formed in 2002 when the 1968 ‘ROME STATUTE’ which established the ICC was put into power in The Hague, Netherlands. Had 60 members in 2002, at end of 2010 110 members. Separate from UN and all nations, has 18 judges from diff nations who conduct pre-trial, trial and appeal divisions. It is a court of last resort, can only be used if; accused is national of member state, alleged crime took place in member state, situation is sent to ICC by UN Security Council. Can sentence life imprisonment, forfeiture of assets but not death penalty. Has jurisdiction over three main things: * Genocide - all genocides since 2002 can be brought to the ICC. Genocide occurs when members of the group are killed, placed in calculated life threatening conditions, birth-prevention occurs against the group or children are forcibly transferred from the group. Worst case of genocide was 6 million Jews, as well as 11 mill others incl. Jehovah’s Witnesses and homosexuals killed by National Socialist German Workers Party (NSDAP). * Crimes against humanity - widespread or systematic attack on a civilian population. Does not require the same amt of proof as genocide because it doesn’t need to target a specific group, just a population. During Nuremburg trials (1945-46, Nazi’s and Rwandan’s), the political weight of calling something genocide made it hard to prosecute, so instead the Nazi’s were much easier to convict of crimes against humanity (even tho both are VERY severe). Previously it was believed these crimes could only occur in war context, but this is not true. * War Crimes - any act in a war context which violates the internationally accepted rules of war, most famously set out in the Geneva conventions (set of four treaties and three protocols which outlines accepted treatment of innocents, wounded and hostages etc). Crimes which can constitute war crimes incl; the torture or inhumane treatment of anyone, wilful killing where not necessary, intentionally directing attacks at civil populations.
Transnational Crimes
Unlike crimes against the intl. community, transnational crimes may not be quite as serious. However they must involve movement from one border to another in some fashion, e.g. a crime is planned one place and committed another, or a crime is committed domestically, yet the result occurs somewhere else (stealing money from o/s bank online). Main crimes incl; human trafficking (smuggling across borders), intl fraud (tax evasion i.e. Paul Hogan 2008 vs Aus Crime Commission), intl. terrorism etc.
Causes of TNC’s incl difference in socioeconomic conditions (human trafficking to get to a better place), desire for prohibited goods, differences in political viewpoints (terrorism). Seeing as a border must be crossed to commit a TNC, usually the target country will prosecute with their laws. Relies heavily on countries working together as it can be difficult to catch criminals i.e. hackers who steal from o/s funds or people who distribute child porn online.
Dealing With International Crime
Domestic Measures
Responses to intl. crime limited by jurisdiction. Australian authorities cannot operate, prosecute or make legislations in/for other countries However Aus can be granted access by host country for things such as relief efforts or Australia’s child sex tourism laws. Other efforts incl: * Crimes against the international community - Most significant domestic effort was signing the Rome Statute on Dec 9 1998, ratified July 1 2002. Under War Crimes Act 1945 (Cwlth) and the Geneva Conventions Act 1957 (Cwlth) Australia agreed to criminalise all war CAIC’s listed in Geneva convention as well as other war crimes. Aus changed its dom. laws to comply with ICC standards under International Criminal Court Act 2002 (Cwlth) and International Criminal Court (Consequential Amendments) Act 2002 (Cwlth).
The legislation created a new Chapter 8 – Offences Against Humanity and Related Offences in the Commonwealth Criminal Code which outlawed all crimes listed in the Rome Statute in Australia. Australia still has primary jurisdiction over its own affairs and attempts to resolve all intl. matters without the need for the ICC. * Transnational Crimes - Australia has used following efforts to reduce TNC’s: * Aus Federal Police (AFP): Australian Federal Police Act 1979 (Cth). Enforces commonwealth crim laws to protect Aus from o/s threats. Jakarta Regional Co-Operation Team has assisted Indo police investigate 2002 Bali Bombings. Develops overseas connections and peacekeepers. * Commonwealth Attorney-General’s Department: sees over Australia’s enforcement of intl. treaties and updates public awareness of issues. * Australian Crime Commission (ACC): Australian Crime Commission Act 2002 (Cth). Investigates matters of national concern with co-operation of intl. bodies. Mainly setup to combat organized crime. * Aus Customs and Border Protection Service: detect and deters unlawful movement of goods/services/people across borders. Stops shit from entering/leaving Australia at the source. * Australian High Tech Crime Centre: formed in 2002, main functions are to co-ordinate a national approach to serious and multi-jurisdictional issues and assist all Australian jurisdictions in response to high tech crime. Reps/funded by all states and territories. Provides information between Australia’s states. * State Bodies: Independent Commission Against Corruption (ICAC), NSW Crime Commission, and police services etc. co-operation between all states to stop crimes.
International Measures
Co-operation between governments through treaties and organisations to target specific crimes, intl. courts/tribunals to enforce intl. laws and intelligence sharing between nations. They separate into 2 categories:
Crimes Against the International Community * Courts and Tribunals: prior to the ICC, intl. crimes were dealt with in ad hoc courts and tribunals in an effort to resolve matters e.g. the International Criminal Tribunal for the former Yugoslavia (ICTY) which investigated genocides and CAIC’s during the 1999-01 Yugoslav conflict. * Extradition Treaties: powerful tool in fighting intl. crime, ET’s are usually done through bi-lateral agreements (Aus currently has aprox. 130). For example, if one murders another in a certain country and flees to Australia, we can extradite them back to the original country to face charges under their jurisdiction. The Extradition Act 1988 (Cwlth) however states that the person has a case to answer, will receive a fair trial, and that the act was a crime in both ours and their jurisdiction before they are extradited. Media clip – The Australian, 12 Feb 2010, Dragan Vasiljkovic was not extradited to Croatia due to the belief that he would receive harsher punishments for his political views, being a military captain. However, in protecting him, he was allowed to not answer to cases of torture
Transnational crimes * International Criminal Police Organization (INTERPOL): world’s largest police force (188 members incl. Aus). Created in 1923, HQ in Lyon, France. Aims to stop transnational crimes through police co-operation. 6 priority crime areas; Drugs and Crim Organizations, Public Safety and Terrorism, Financial and High Tech Crime, Trafficking in Human Beings, Fugitives, Corruption. * Convention Against Transnational Organized Crime: Transnational Organized Crime: main instrument in fighting TN organized crime. Began in 2000 with 3 protocols that members must adhere to: * Protocol to prevent, suppress and punish trafficking in person esp. women/children * Protocol against the smuggling of migrants by land, air or sea * Protocol against the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition * Pacific Transnational Crime Network (PCTN): formed in July 2002, initiative of the AFP. HQ in Apia, Samoa. Aus realized we needed better connections with our islander counterparts in order to stop TNC’s. Mainly because pacific countries may lack resources to stop crims. Program is successful, as in 2004 the largest methamphetamine production in the S-Hemisphere was discovered in Suva, Fiji.
Limitations
Transnational Crimes:
Limitations to fully prosecuting TNC include: * Often organized criminals/organisations with specific actions to remain hidden * Some states may lack skills to tackle problems (lack of skills, training, resources etc), whilst others may have excessive corruption or political unrest – these may become a breeding ground * Extent of co-operation amongst countries (limited) * Co-ordination between countries (exchanges of information lacking) * Countries limited by jurisdiction and what treaties allow them to do * General lack of skills, resources, funding, intelligence across countries
Crimes against the International Community * Creation of ICC very important - symbolic, having an actual court means that rogue leaders cannot hide behind state sovereignty, which may deter many of them from committing these crimes to begin with and support victims – but only deals with crimes after they are committed – do not stop occurence * Very rarely are intl. authorities able to actually catch those responsible as they usually have power and are able to hide in their own nations i.e Evident in conflict in Darfur, Sudan, as ICC couldn’t lay charges on President al-Bashir until 2008, five years after the atrocities (and still not apprehended). Occurred just 15 yrs after Rwanda massacres (500,000 dead in 100 days) * Great costs of international investigation – borne by member states * Most states feel that joining ICC violates state sovereignty * Many states fear being prosecuted for their own affairs (India v Pakistan in Kashmir or China and Tibet)