Professional Documents
Culture Documents
Crime
Table of Contents
Crime 4
The Nature of Crime 5
The Meaning of Crime 5
The Elements of Crime 5
Strict Liability Offence 6
Causation 6
Categories of Crime 6
Summary and Indictable Offences 10
Parties to a Crime 10
Factors Affecting Criminal Behaviour 11
Crime Prevention 11
Criminal Investigation Process 13
Police Powers 13
Reporting A Crime 13
Investigating A Crime 13
Arrests 14
Bail and Remand 15
Detention and Interrogation: Rights of Suspects 16
Criminal Trial Process 17
Court Jurisdiction 17
Adversary System 18
Legal Personnel in Criminal Trial 18
Plea and Negotiation 19
Legal Aid NSW 19
Burden and Standard of Proof 20
Use of Evidence (inc. Witnesses) 20
Defences to Criminal Trial 20
Role of Juries 21
Sentencing and Punishment 22
Statutory and Judicial Guidelines 22
Purpose of Punishment 22
Factors Affecting Decision 22
Role of the Victim in Sentencing 23
Types of Penalties 23
Alternative Methods of Sentencing 26
Post Sentencing Considerations 26
Young Offenders 27
Age of Criminal Responsibility 27
Rights of Children when questioned/arrested 28
Children’s Court: Procedures and Operations 28
Penalties for Children 28
Alternatives to Court 28
International Crime 28
Categories of International Crime 29
Dealing with International Crime 29
HSC Legal Studies
Crime
Principal focus: Through the use of a range of contemporary examples, students investigate criminal
law, processes and institutions and the tension between community interests and individual rights and
freedoms.
Themes and challenges to be incorporated throughout this topic:
➢ The role of discretion in the criminal justice system
➢ Issues of compliance and non-compliance in regard to criminal law
➢ The extent to which law reflects moral and ethical standards
➢ The role of law reform in the criminal justice system
➢ The extent to which the law balances the rights of victims, offenders and society
➢ The effectiveness of legal and non-legal measures in achieving justice.
The Nature of Crime
Criminal Negligence;
➢ The victim (a nine month old girl) passed away, after her parents failed to provide
conventional medical treatment for her serious eczema
➢ The court found that the risks related to the young girl’s condition would have been
obvious to any reasonable person, and that as educated adults, her parents should have
recognised these risks and sought medical treatment
➢ Because they failed to do so, the parents were found guilty of manslaughter and
imprisoned.
Causation
➢ The act that was performed must be the ‘operative and substantial’ cause of the crime,
meaning that the actions were the primary reason for the offence.
➢ Causation links to Actus Reus: The prosecution is required to prove a substantial link between
the act and the crime.
Causation can be established due to the link between the assault and the death of the victim;
➢ The accused, Todd Munter, punched and then kicked a 66 year old victim following a
dispute over water restrictions
➢ The victim later died of a heart attack as a direct result of the blows inflicted by the
accused.
➢ The accused was convicted of manslaughter and imprisoned.
Homicide Murder:
The unlawful killing of a Deliberate killing of another person. The prosecution must prove
person. The judge must either
determine that there is a
‘causal relationship’ between ➢ The accused intended to kill the victim or inflict grievous
the actus rea and mens rea. bodily harm
➢ The act was committed with reckless indifference to human
life
➢ The act was done while committing another serious crime
Manslaughter:
The killing of a person in a manner considered to be less intentional
than murder. There are five types:
➢ Voluntary manslaughter: Occurs when the accused kills
someone with intent, but there are mitigating circumstances
involved (e.g provocation, self defence).
➢ Involuntary Manslaughter: Occurs when the accused acted
in a reckless or negligent way, without intent to kill the
person.
➢ Constructive Manslaughter: Occurs when the accused kills
the victim while performing another unlawful act (e.g
assault).
➢ Infanticide: A special case of manslaughter, occurs when a
mother’s actions cause the death of her child when they are
less than 12 months old.
➢ Dangerous driving causing death: A special case of
manslaughter, where the accused driving in a reckless way
causes the death of the victim.
Indecent assault:
A sexual offence not involving sexual intercourse, but other acts of
indecency
CASE STUDY: R v AEM (Snr); R v KEM; R v MM [2002]
➢ The accused (three family members) lured two 16 year old girls into one of the offender’s
homes and sexually assaulted them over several hours.
➢ Violence and death threats were utilised by the offenders
➢ The men were originally sentenced to less than 10 years imprisonment.
➢ Public outcry led to the introduction of a new type of offence, aggravated sexual assault in
company, into the Crimes Act 1900 (NSW)
➢ This case was the catalyst for law reform in this area of law.
Sedition:
The inciting of public unrest with the aim of bringing down the
government; the act of encouraging hatred or contempt for the
government.
Economic Offences:
Crimes Against Property Larceny:
Where the accused intentionally takes the victim’s property
without their consent.
Robbery:
Where the accused uses force to steal property. The use of a
weapon constitutes armed robbery.
Conspiracy:
Most preliminary offences Where a group of individuals attempt to commit a crime.
are punished as it the crime
was successful, except for
some exceptions (attempted
murder).
The Principal in the First The principal offender, the person who is directly responsible for
Degree. the crime and commits the act
The Principal in the Second A person present during the crime (physically or
Degree. otherwise), who encouraged or assisted the offender.
Accessory Before the Fact. A person who has helped in planning or preparation before the act
is carried out.
Accessory After the Fact. A person who has assisted the principal after the act is carried
out.
Factors Affecting Criminal Behaviour
Criminology: The scientific study of crime and criminal behaviour. All crimes are committed for
different reasons and are influenced by a combination of factors:
Psychological Factors ➢ Extremely relevant to mens rea aspects of trial.
➢ May constitute a mitigating circumstance if mental illness
is involved
➢ Punishments will have a focus on psychological
rehabilitation
Economic Factors ➢ People from disadvantaged backgrounds are more likely to
commit crimes
➢ Poor education and lack of skills leads individuals to
commit economic offences to improve their financial
situations
➢ One third of male and one half of female criminals in NSW
receive welfare payments
Genetic Factors ➢ Studies have been conducted attempting to link criminal
behaviour to a genetic abhorrence
➢ No conclusive evidence yet exists
Political Factors ➢ Offences against the sovereign or public order offences
may have a political factor involved
➢ An extreme example of such an offence is terrorism
Self Interest Factors ➢ Most crimes are committed in the interest of the offender(s)
➢ White c ollar crimes are a good example of crimes
motivated by personal greed, rather than external factors
Crime Prevention
➢ Measures which make it more difficult ➢ Measures which attempt to address the
or less rewarding to commit crimes underlying social factors which may
➢ May include installation of security lead to criminal behaviour, including a
systems, anti virus software, or avoiding lack of skills or socioeconomic
poorly lit environments disadvantage.
➢ i.e Greater number of police in areas ➢ May include youth programs or
such as King's Cross were majority of educational workshops.
drunken, one punch assaults occur; Use ➢ The most common strategy to
of UV lights in bathrooms in order to encourage young people away from
crime is the use of diversionary
stop individuals from injecting programs that provide a venue for
substances harder to see veins. alternative activities, such as sporting
groups, the Police Citizens Youth Clubs
and drop-in centres.
Criminal Investigation Process
Police Powers
➢ Responsibility to enforce criminal law in their relative jurisdiction.
➢ Role is to investigate crime, interrogate witnesses, gather evidence and make arrests. To
prevent crime through maintaining a public presence and acting as a deterrent, and to
investigate criminal activities and assist in the prosecution of those charged with offences.
➢ Challenge lies in the balance between civil liberties and police powers, which violate the
individual rights of citizens.
Powers are granted by the Law Enforcement (Power and Responsibilities) Act 2002 (NSW). Such
powers include;
➢ Questioning suspects, detaining suspects, search and seizure, all with the use of reasonable
force.
➢ May need a warrant to utilise certain powers
➢ NSW Police force adheres to a code of practice which ensures the rights of suspects.
➢ Since 2002, amendments to LEPRA have increased police powers in NSW. New powers have
been introduced to assist in criminal investigation process.
Gathering Evidence ➢ Evidence is gathered to support a charge in court. May
include witness statements, forensic analysis.
➢ Must be collected according to the Evidence Act 1995
(NSW) to be admissible in court.
➢ Evidence collected at crime scene ‘in situ’ (in the place).
Ensures the rights of individual citizens during investigation
process.
Use of Technology ➢ Surveillance technology has provided more evidence for use
in criminal investigations; for e.g. the installations of
cameras in major public spaces has assisted in identifying
criminals.
➢ Must be extremely reliability for admissible evidence. In
NSW there are strict rules about the use of DNA evidence
and its collection, contained in the Crimes (Forensic
Procedures) Act 2000 (NSW).
➢ DNA EVIDENCE: Genetic material that can be used to link
a suspect with a crime scene.
➢ Suspect must consent to taking of DNA samples.
➢ Crimes (Forensic Procedures) Act 2000 (NSW)
Use of Warrants ➢ A legal document issued by a court authorizing the use of
particular police powers
➢ Ensures police powers are only used in appropriate
circumstances: Judicial regulation
➢
Search and Seizure ➢ The Law Enforcement (Powers and Responsibilities) Act
2002 (NSW); procedures for police to follow when
conducting personal search or strip search; respect dignity.
➢ Mandated by LEPRA 2002 (PART 4)
➢ Controversial: Invasion of Privacy
➢ Police must reasonably believe the person is carrying an
illegal article or an item connected to a crime (discretion)
➢ Governed by strict regulations to protect individual rights
➢ LEPRA Amendment (Search Powers) Act 2009 allows
covert searches for serious indictable offences.
Arrests
Dietrich, who had been charged with drug offences, was denied legal aid after he refused to plead
guilty. Legal aid took the view that the evidence against Dietrich was so overwhelming that his case
had no merit; that is, it was pointless for him to plead not guilty.
Dietrich represented himself and was convicted. He appealed his conviction to the High Court
arguing that he did not get a fair trial, as he had no legal representation. The High Court agreed that
it was probably that Dietrich did not get a fair trial but noted that there was no automatic right to
legal representation. This ruling meant that individuals who are not eligible for legal aid and cannot
afford their own lawyer may not have legal representation during court proceedings and police
interrogations.
➢ Rights include:
➢ Right to legal representation
➢ Right to s ilence
➢ Aim is to balance rights of the victim, the accused and society
➢ Critics condemn the shift away from recognizing the rights of the victim
Criminal Trial Process
Court Jurisdiction
➢ Jurisdiction: The legal power or responsibility of a court
➢ Court Hierarchy: The system of courts within a jurisdiction, from lower courts to intermediate
and then higher courts
➢ Cases usually heard in a Local Court for a preliminary hearing, before proceeding to
appropriate court Judiciary Act 1903 (Cth) gives state courts the power to hear federal
criminal cases
➢ Original jurisdiction: The authority for a court to hear matters for the first time
➢ Appellate jurisdiction: The authority for a court to review matters on appeal
Land and Environment Interprets and enforces environmental and property law
Court Heard by judge only
Federal Courts
High Court of Australia ➢ Prosecuted by a Commonwealth DPP in a state court
➢ Includes drug importation, money laundering etc
➢ Cases classified as summary/indictable and sent to relevant
court
➢ s71 of the Constitution and Judiciary Act 1903 (Cth)
➢ Original jurisdiction for constitutional interpretation and
some Cth matters
➢ Special leave can be granted to appeal
Adversary System
“A system of law where two opposing sides present their cases to an impartial judge and/ or jury.”
➢ An impartial mediator determines result based on evidence presented
➢ Inherited from English common law system
➢ Supporters argue it ensures each party is heard, and bias is reduced
➢ Critics argue that the skill of legal personnel impacts on cases, as does the lack of legal
knowledge of the jury
➢ The inquisitorial system is centered around the judge
➢ Judge directs case and can request evidence
➢ Present in the form of coronial inquests and royal commissions
Prosecutors ➢ Represent the state (and therefore society) before the court.
Prove that the accused is guilty. Once a conviction has been
gained, the prosecution will present arguments and
evidence in favour of a harsh penalty.
➢ Police prosecutors (trained officer) operate in the Local
Court
➢ Public prosecutors (DPP) operate in higher courts: Director
of Public Prosecutions: Criminal lawyer who is appointed
by Parliament to be responsible for the Office of the DPP
(or ODPP): it has a team of highly trained criminal lawyers,
known as Crown prosecutors, who act as prosecutors
➢
Negotiation:
➢ An agreement between the DPP and the accused that involves the acceptance of a guilty plea
in exchange for a lesser charge or other conditions
➢ Reduces administrative burdens and guarantees a conviction
➢ Prevents full extent of law being achieved, may ‘force’ a guilty plea
CASE STUDY: Thomas Kelly Case (2013) R v Loveridge 2013
➢ The accused caused the death of the victim after a ‘king hit’
➢ A guilty plea was entered for manslaughter, and the accused received a sentence of
minimum five years
➢ Many argue this sentence was too lenient, and that the accused should
➢ Have been charged with murder
Complete Defence
Mental Illness Accused was mentally incapacitated while committing the crime.
Automatism Accused was not in control of their own actions at the time they
committed the crime.
Self Defence Accused committed the crime in the act of defending themselves or
others with reasonable force depending on circumstance
Duress Accused committed the crime against their own free will, unlawful
pressure was applied to them.
Partial Defence
Provocation Accused was not in control of their actions due to the actions of
another. Controversial, implies victim was responsible (reduces
murder to manslaughter).
➢ Victoria abolished the defence in 2009 and restricted the use of provocation
➢ Under section 23 of NSW Crimes Act
➢ Extreme p rovocation can still be used if:
○ Act was done in response to conduct of the deceased toward or affecting accused
○ Act done by the deceased was serious, indictable offence
○ Act caused accused to lose self-control
○ Act could have caused ordinary person to lose self control
Deterrence ➢ Passing a higher sentence to deter the offender from
reoffending, or to deter other offenders
➢ Little evidence to support effectiveness
➢ ALRC recommends deterrence not be considered
Incapacitation ➢ Restricts freedom of offender to render them incapable of
committing further offences
➢ Imprisonment, home detention
No Conviction/Record Judicial officer passes No conviction May be an ineffective
the sentence with no recorded recognises deterrent – May not
conviction recorded or the damage that a achieve any of the
conviction recorded conviction can have major purposes of
on an individual’s life. punishment – ‘Slap on
but no further sentence
Enables them to have the wrist’ that may
an effective second rattle public
chance confidence in the
enforcing of the law
by judiciary
Fine Monetary penalty Inexpensive to impose May not deter – May
imposed for – Raises revenue that disadvantage poor
infringement of a law can be used by the people who have
(Penalty units are a government in other greater difficulty in
areas – Appropriate finding the money to
specified unit of
for minor offences – pay the fine – Does
money used in
Flexible not rehabilitate
legislation to describe
the fine payable)
Bond
Suspended Sentence A sentence of Saves the state money, Not retributive –
imprisonment imposed as imprisonment is offenders don’t get
but suspended on expensive – Deterrent their ‘just deserts’ –
condition of good of going to gaol hangs Reduced deterrence
behaviour over offender for smaller scale
offences
Probation A type of good Offender has to adhere May not be an
behaviour bond where strictly to the effective deterrent
the offender is conditions of the bond (specific or general).
released on condition or be returned to the Could lead to
of good behaviour but court and risk facing a recidivism – Takes up
placed under some higher sentence – Can police time which
form of supervision, be used when an order could be better spent
such as daily reporting for detention would be on other matters
to a probation officer too severe
Criminal A notice issued by the Saves on court time Increase in police
Infringement Notice police outside of court and resources – The powers and police
alleging a criminal notices are not final discretion – If
infringement and and offenders can offender challenges
requiring a payment of elect to have the and loses in court they
a fine matter heard in court are likely to be
punished more, is this
fair? – may be too
lenient (not
retributive) – not deter
Penalty Units
Community Service The offender is Assists the general May not deter (both
Order, sentenced to serve community – society specific and general) –
specified hours of is compensated – Offender has
work in the Suitably retributive as opportunity to
community offender can correct re-offend – May not
their actions e.g. clean rehabilitate
up graffiti –
Inexpensive
Periodic Detention Imprisonment Only available to May not be an
sentence where the offenders who would effective deterrent –
offender spends a otherwise receive Offender has
period of each week or maximum opportunity to
month in prison and imprisonment of 3 re-offend as they are
the rest of the time at years – appropriate for only detained for short
home some offences – periods
Enables offender to
maintain life
(working/family) – If
offender breaches the
conditions of their
periodic detention, the
court may order them
to serve the sentence
full-time
Forfeiture of Assets Loss of rights to Applied effectively to Difficult to relate to
property or assets as a organised crime the traditional
penalty or wrongdoing matters – as purposes of sentencing
sentencing itself won’t – Only truly effective
stop these offenders if used in conjunction
benefiting from their with another
criminally acquired punishment
assets – Gives the law
an avenue to target the
primary incentive of
most criminal
organisations, money
– Additional
punishments can be
ordered e.g.
imprisonment
Diversionary An alternative to the Targets the causes of Is rehabilitation
Programs traditional court offending and seeks to focused on too much
system, diversionary improve offender’s in comparison with
programs focus on future prospects by other purposes of
therapeutic justice and assisting individual punishment i.e.
rehabilitation of needs i.e. retribution,
offenders rehabilitation – incarceration and
Devised to support deterrence? –
offenders who have Discriminatory, in that
committed crimes due it focuses heavily on
to drug and alcohol offenders with drug
abuse – Drug Court is and alcohol problems
an e.g. of a successful – Reduces personal
diversionary program accountability for
which has attracted criminal behaviours
international acclaim by focusing more on
for its success in the causes of
breaking long-term criminality and not its
cycles of crime and impacts/results –
drug abuse in Offenders seemingly
individuals more significant factor
than victims and
society in this form of
punishment
Security Classification ➢ Three levels of security for prisoners in NSW (max, med,
min)
➢ Classified based on the nature of the crime and prospects
of rehabilitation
Sexual Offender’s ➢ Databases exist for offender’s committed of certain crimes
Registration ➢ Child Protection (Offenders Registration) Act 2000
(NSW)
0-9 years old Cannot be charged with criminal offence. Children under 10 are not
seen as mature enough to commit criminal offences.
10-13 years old Rebuttable presumption of doli incapax. Presumed not capable of
committing an offence, but prosecution may show the child knew
what they did was ‘seriously wrong,’ not just ‘naughty.’
14-15 years old Criminally responsible for any offence committed, but no
conviction can be recorded until it is a serious offence.
16-17 years old Criminally responsible for any offence committed and a conviction
may be recorded, but the case will still be heard in a children's’
court.
18 years or older Full adult criminal responsibility, with case to be heard in adults
court. IF the offence was committed before the accused’ 18th
birthday, it an still be heard in the Children's court until the accused
turns 21.
➢ The offender, a 10 year old boy, pushed a 6 year old into the river who subsequently
drowned
➢ Prosecution could not prove criminal intent beyond reasonable doubt
➢ Offender was found guilty of manslaughter
Rights of Children when questioned/arrested
Australia must protect rights of children: Convention on the Rights of the Child. LEPRA includes
special provisions for children.
Arrest and Interrogation ➢ Young people must be separated from adult criminals
➢ No DNA samples or fingerprints can be taken (without
court order)
Transnational Crime
➢ Crimes which occur within state jurisdiction, but across international borders (e.g drug
trafficking)
➢ Acts have international and domestic implications
➢ Usually prosecuted in native country
➢ May involve extradition
➢ Causes of transnational crime include:
➢ Desire for prohibited goods/services
➢ Differences in socioeconomic opportunity
➢ Political tension
➢ Crimes committed outside jurisdiction: crimes committed in international waters or other
areas outside of any relevant state jurisdiction. Covered by international treaties.