Core Topic 1: CRIME

1. THE NATURE OF CRIME

The meaning of crime
Crime: an act or omission of duty resulting in harm to society, that
is, it goes against the standards of society and undermines the
community, that is punishable by the state in proceedings brought
in the name of the state.
Characteristics of criminal law:
Deals with crime
Protection of society
Crimes against a person, the state and/or property
The police and/or the Director of Public Prosecutions decide to
prosecute the offender in court
The crown must prove its case beyond reasonable doubt
Provide a sanction or punishment to an offender who is found
guilty by a court of law
The elements of crime: Actus Reus, Mens Rea
Actus Reus:
The guilty act/failure to act
The physical performance of a guilty or wrongful act or
omission
It must be proven that the person charged actually carried out
the crime, rather than merely thinking about it
May take the form of a failure to act or an omission of duty
It must be physically voluntary e.g. cant be while sleeping
walking or during an epileptic fit automatism
Mens

Rea:
The guilty mind
Refers to a persons intention to commit a crime
Level of legal liability

The three main levels of mens rea:

1. Intentions: the person is fully aware and conscious and they
wilfully and purposefully intended to commit the crime i.e. pre
meditated
2. Reckless indifference: when the accused was aware that their
action could lead to a crime being committed but they chose
to take that course of action anyway e.g. R v Loveridge
3. Criminal negligence: where the accused fails to foresee or
consider what a reasonable person in their position would
regard as a risk so allows the avoidable danger to occur
Strict Liability Offences

Occur when the prosecution must only prove that an illegal act was
done (actus reus); that is, no mens rea must be proven
E.g. traffic offences, graffiti offence of holding a spray can
Summary offences dealt in the Local Court
Causation
The link between the actions of the accused and the harm cause by
it
The behaviour of the accused must be at least the substantial
cause of the crime i.e. there must be a link between what the
accused did and the injury that was caused
Examples:
R V Blaue- the refusal of the victim to accept reasonable treatment
on religious grounds
R V Hallet expected natural forces like sea tides
Categories of Crime
Drug Offence:
Involves prohibited or restricted drugs
Include cultivation, importation, manufacture,
distribution/trafficking, and possession
The Drug Misuse and Trafficking Act 1985 (NSW)
Offences against the person:
Acts or omissions that harm or cause injury to an individual
Crimes Act 1900 (NSW) and Crimes Act 1914 (Commonwealth)
The three broad categories are:
1. Homicide:
The unlawful killing of a person.
Murder: the deliberate killing of another person/set out to inflict
bodily harm resulting in death and was done with reckless
indifference to human life.
Manslaughter: when it can be proven that the defendant did not
intend to kill someone. It is less intentional than murder.
Infanticide: the death of a baby under the age of 12 months at
the hand of its mother. Mitigating circumstances include postnatal depression
Death by reckless driving: when a person is driving in an unsafe,
reckless and negligent manner
2. Assault:
Threatened or direct application of force, violence or injury upon
a person

Common assault is a criminal offence involving the infliction of

physical fore or the threat of physical force
Assault not occasioning actual bodily harm
Assault occasioning bodily harm (bruising, scratches)
Grievous bodily harm (serious fatal wounding)
3. Sexual Assault:
When someone is forced into sexual contact with another person
against his or her will and without his or her consent
Indecent assault: where the accused commits an assault and act
of indecency on or in the presence of another person without
their consent
Aggravated sexual assault in company: high degree of violence
or where a victim is under age or particularly vulnerable. Sexual
assault performed with another person or people present
together either depriving the victim of their liberty or the
infliction or threatened infliction of bodily harm
A person is not consenting where they are:
Substantially intoxicated by drugs or alcohol
Intimidated or coerced into the act
If the victim is aged under 16, they are not legally able to
give consent
Preliminary Offence:
These involve preparation for a crime and include attempted crime
and conspiracy
Public Offence:
This is behaviour, which results in a disturbance of order that affects
the public in some way
Economic Offence:
These crimes involve damage to or loss of a persons property
Three main categories:
1. CRIMES AGAINST PROPERTY:
Larceny: the intentional taking away of another persons property
without their consent
Breaking and entering: the unauthorised entry into premises with
the intent to commit an offence
Robbery: when property is taken directly from the victim with the
use or threat of violence
2. WHITE COLLAR CRIME:

Embezzlement
Tax evasion
Insider trading

3. COMPUTER OFFENCES:
Computer based offences such as identity theft, hacking
Driving Offence:
They only require the police to show that the offender committed
the act; they do not need to consider the individuals intention or
state of mind
Offence against the sovereign:
Aim to disrupt or harm the governing bodies of a country
Sedition: promoting discontent, hatred or contempt against the
government or leader of the state
Treason: an attempt to manifest attention to levy war against the
state, assist the enemy etc.
Summary and indictable offences
Summary: less severe offense that are heard and sentenced by a
magistrate in the local court. E.g. swearing in public, larceny
Indictable: more serious offences that are heard and sentenced by a
judge or jury in the District or Supreme Court. An initial committal
hearing will be held in the Local Court. E.g. assault, homicide, tax
evasion
Parties to a crime
Principal in the first degree: the person who actually carries out the
criminal act and is the principal offender of the crime. They are
directly responsible and referred to as the perpetrator. If found
guilty, receive harshest penalties
Principal in the second degree: the person is present during the
actual crime and assists the principal in the first degree to commit
the crime. Given a lighter sentence and are referred to as the
accomplice or accessory
Accessory before the fact: helps others plan or prepare the criminal
act and are not present at the time the crime is conducted
Accessory after the fact: helps criminals after they have committed
the crime and are not however, present during the crime. They are
given the lesser punishment.
Factors affecting criminal behaviour
Psychological: forms of mental illness can lead to criminal behaviour

Political: a persons political views may cause them to commit an

offence. Some people in groups may not agree with some laws and
may consequently not comply with them
Economic: people who suffer economic disadvantage can feel
disconnected from mainstream society and hence may feel less
respect for the law and are more likely to commit a crime
Genetic: not a factor anymore
Social: a persons peers and their social status can have an
influence on their behaviour. Factors such as peoples family
situations, personal relationships and the social groups they
associated with can influence their attitude to the law and views of
acceptable behaviour.
Self-interest/greed: as a result of our society becoming increasingly
materialistic it is now obvious that many criminals are motivated by
money, power or greed

Crime prevention: situational and social

Situational:
Physically changing a situation or location so that the
incidence of a crime is reduced
Involves making it difficult for criminals to commit acts by
increasing the risk of being caught, making the crime more
difficult to perpetrate or making the crime less rewarding
For example: security cameras, police patrols, alarms,
passwords, tracking devices
Social:
Refers to social approaches to reducing the incidence and/or
possibility of crime.
Attempts to reduce the factors that are likely to cause a
person to commit a crime i.e. poor environment and
parenting, social and economic disadvantage.
For example: youth programs, counselling, education
2. THE CRIMINAL INVESTIGATION PROCESS
The Criminal Trial Process: the adjudication process and is the
hearing stage of the criminal process, where the guilt or innocence
of a defendant is decided in a court according to the rules of
procedure and evidence
Sentencing and punishment: punishment state of the criminal
process in which courts decide appropriate punishments for
convicted offenders and sentences are carried out
Police powers:
Have the responsibility for enforcing criminal laws and
ensuring they are adhered to

Police form part of the executive arm of government

Responsible for the prevention and detection of crime and for
the maintenance of public order
Obligation to uphold and enforce criminal laws such that the
purpose of the laws can be achieved to create social order, to
regulate, to keep society safe and to investigate and
prosecute criminal breaches of the law
Law Enforcement (Powers and Responsibilities) Act 2002
(NSW)
Main police powers:
Detain and question suspects
Search property and seize evidence
Use reasonable force if necessary to carry out their
duties
Arrest
The new rights of police often conflict with the ordinary rights
of citizens
Police discretion can play a large role in the investigation of
criminal offences
Police must decide which areas to patrol, which crimes to
target and which reports to investigate
Police discretion also applies to decisions made by individual
officers

Reporting Crime:
Police rely on members of the public to report crimes
Many crimes go un-reported e.g. domestic violence and sexual
assault
Unreported because fear of consequences, personal affection
towards offender, dont want to be a witness, trivial matter
Victims and witnesses use discretion when deciding to report
a crime, not all crimes will be solved and offenders will go
unpunished
Investigating Crime:
Police investigate most crimes, but it is left to their discretion
as to whether or not the crime warrants investigation
Tools: interviews, forensic science and surveillance
Gathering Evidence:
Role of the police to gather evidence
Aim to provide the evidence required to convince a court that
the accused or defendant is guilty to the standard of beyond
reasonable doubt
Involves taking witness statements
Evidence can be physical, electronic and oral regulated by
the Evidence Act 1995 (Commonwealth)

Use of Technology:
Allows for the creation of databases that can be used for
storing evidence
Frequently used by police to gather evidence
E.g. surveillance technology, mobile phones, DNA evidence
Crimes (Forensic Procedures) Act 2000
Search and Seizure:
NSW police have broad powers to stop and search any person
where they believe on reasonable grounds that they are
carrying anything stolen
Allow the police to apply for warrant
Police can then seize and detain any of these subjects, if
discovered
The police have the right to search an arrested person
LEPRA Amendment (Search Powers) Act 2009 law reform
that allows for cover searches for any crime that has a penalty
of 7 years or more.
Use of Warrants:
A warrant is a legal document issued by a magistrate or judge
which authorises a police officer to perform a particular act e.g. to
make an arrest, conduct a search
Arrest and Charge, Summons and Warrants
ARREST AND CHARGE:
Depriving a person of their liberty to be free, therefore the
arrest must be by the book and lawful
The conditions under which the police arrest a person are
contained in LEPRA
Police must issue a caution at the time of the arrest
Charge: formal complaint or allegation that a person has
breached criminal law and therefore has a question to answer
before the court.
Police need to be careful to choose the correct charge that is
consistent with the evidence
Prove any charges beyond reasonable doubt
To sustain a charge in court evidence must be compelling
Summons:
A legal notice that is served on a person requesting their
attendance in court
LEPRA sets out the lawful conditions under which a suspect
can be detained for questioning and for the purpose of further
investigation
Detention:
A person is detained or held

Purpose: to stop a person from conducting an offence,

continuing an offence, for investigation of a crime or because
they are wanted in respect of an unlawful act
Length: 4 hours and can be extended to 8

Interrogation:
Rights to suspects:
Right to silence
Right to caution
Right to legal support
Right to be told why they are being detained/under arrest
Right to communication
Right to have illegal evidence to be dismissed
BAIL OR REMAND
Bail Act 1978 (NSW)
Once charged, the police will be required to bring the accused
before a court or authorised officer as soon as practicable for
a bail hearing
Bail refers to the temporary release of an accused person
awaiting trial, sometimes on particular conditions
Further conditions are imposed if the person presents a flight
risk
Changes to the Bail Act 1978 since 2002 have made it more difficult
to get bail
A very strict test for granting bail to persons accused of
murder or who is a repeat offender
Limit on amount of bail applications that can be made to a
court
To provide a greater protection to the community
The importance of bail:
Bail is very important because, until the court hearing is over,
the defendant is presumed innocent
If a person is remanded, that means a person presumed
innocent is kept in prison
Delays in the justice system thus bail is essential

REMAND
Remand refers to a period spent in custody awaiting trial at a later
date/bail is refused
Person held on remand and given custodial sentence later will have
that time taken off the sentence if it has already been served in
remand
3.CRIMINAL TRIAL PROCESS:
Pleas, Charge Negotiation

The plea:
Formal statement of guilt or innocence entered into by the
accused
Plea hearing: in front of judge the accused can either plea
guilty or not guilty, or enter no plea, which is taken to mean
not guilty
Guilty plea: no question about the accuseds guilt, the matter
goes straight to sentencing. Does not require witnesses to
give testimony. Those who plea guilty generally get a
discount on their sentence
No guilty plea: the guilt of the accused is not assured. The
case must go to trial and the prosecutor is left to convince the
jury of the accuseds guilt while the defence argues that the
accused did not commit the crime
Charge Negotiation: