Legal Studies HSC 2024 PDF

Legal Studies Stage 6 Study book L - Legislation (in every para. Chronology, recent/up to date) C - Cases --------------- M - Media (website) I - International instruments - human rights D - Documents (extra research) HSC E...

Legal Studies Stage 6 Study book L - Legislation (in every para. Chronology, recent/up to date) C - Cases --------------- M - Media (website) I - International instruments - human rights D - Documents (extra research) HSC Exam - 2024 Part I - Multiple choice - 15Q’s (crime), 5Q’s (human rights) Part II - 15 marks (shorts + medium response) 3/4 Q’s Human Rights (2 - 8 marks) - syllabus points Part III - 15 mark - 1 extended response - Crime - (3 - 4 pages) - slightly more important Part IV - 2 Essays (25 mark each) = 50 marks (1. Family law 2. workplace) PEARRJAM P → Protection Of Individual Rights E → Enforceability A → Accessibility R → Responsiveness R → Resource Efficiency J → Has Justice Been Achieved? A → Application Of The Rule Of Law M → Meeting Society’s Needs 1 Contents Topic ONE: Crime Topic TWO: Human Rights Topic THREE: Family 2 Topic ONE: Crime https://docs.google.com/document/d/13KOXtaYOFhFqUKJ53S1u02a6vt__H6ze8XsT4g PQmlw/edit The Nature Of Crime ⚫️ The Meaning Of Crime Definition: an act committed or an omission (not doing something, such as voting) of duty injurious to the public welfare, for which punishment is prescribed by law, imposed in judicial proceedings and brought in the name of the state (crown) Fundamental Role Of Criminal Law Criminal law seeks to protect people & their property and help create and maintain an ordered society, through punishment Criminal law attempts to set boundaries of acceptable behaviour in almost every area of human activity and can therefore be seen as fundamental to social interaction More crimes are a result of moral and ethical judgements by society’s on a person’s behaviour → change overtime therefore are ever changing Common Features Of Crimes Offences are usually against an aspect of public welfare Crimes are prosecuted in criminal proceedings Are bought in the name of the state Crimes leave the offender liable to criminal punishment → may be imprisonment Four Basic Principles Of Criminal Law Innocent Until Proven Guilty – founded on the principles of natural justice and procedural fairness Proof Beyond Reasonable Doubt – higher threshold because of the potential for severe penalties The Right To Remain Silent – not in the Constitution but under s.89 of the Evidence Act 1995 (NSW) Double Jeopardy – no one may be punished more than once for the same offence. 3 ⚫️ The Elements Of Crime: Actus Reus, Mens Rea Actus Reus: Guilty Act → the accused performed that actual offence ○ The act or omission actually took place ○ That it was done by the accused person ○ Voluntary action Mens Rea: Guilt Mind → the intention to commit the offence Refers to the intent and state of mind that was present in committing the crime Three main levels: 1. Intention: a clear, specific, desire, or willful intention to commit the crime 2. Recklessness: the person could foresee the probability of harm but acted anyway 3. Criminal Negligence: the person failed to exercise the degree of care, skill or foresight that reasonable person would have exercised in the same circumstances If a person os reckless or negligent, there is an assumption of mens rea (intent) The law see’s the negligence leads to intent Capacity: Offender must be capable of forming the Mens Rea Doli Incapax → incapable of committing the crime Following groups are not considered capable of forming the necessary mens rea: 1. Children under 10 years of age → Children (Criminal Proceedings) Act 1987 (NSW) a. Children under this age may not have mental capacity of understanding their consequences 2. If crime committed between the ages of 10-14 prosecution must show the child knew the act was wrong 3. Mental Incapacity (must be proved) Example: Court finds boy, 14, is too young to be held criminally responsible for death of Melbourne teen Declan Cutler Thirteen year old is not charged with murder due to age having the capacity to understand the consequence of his actions However at the age there should be some common knowledge of the result of stabbing a person, thus the ruling was not thought through. ⚫️ Strict Liability Offences Refers to no mens rea needed to be proven (only actus reus) → traffic offences (intent is assumed) SLO lowers the level of proof required to achieve a criminal conviction, and so lessens an accused’s role in the criminal process Generally restricted to summary offences Strict liability is applied to offences due to its resource advantages ⚫️ Causation The prosecution must show that there is a link between the act and the crime committed as well as proving that the act had taken place. The act must be at least the substantial cause of the harm. 4 E.g. Roger Dean jailed for life for deliberately lighting deadly fire at Quakers Hill nursing home Dean set a fire to the nursing home to create a diversion from taking medical prescriptions However, he had 11 counts of murder and eight of recklessly causing grievous bodily harm Thus, him knowing that the elderly would not been able to evacuate as quick makes a link between the act and the crime ⚫️ Categories Of Crime Including Offences Against The Person, Offences Against, The Sovereign, Economic Offences, (Property/White Collar/Computer), Drug Offences, Driving Offences, Public Order Offences, Preliminary Crimes (Attempts And Conspiracy). Offence Against the Person: Homicide: Definition: the unlawful killing of another person. Features include both deliberate and accidental acts of killing, with varying degrees 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 of homicide in New South Wales law: 1. Murder 2. Manslaughter 3. Infanticide 4. Dangerous driving causing death. Murder: Murder is the most serious homicide offence and is punishable by life imprisonment. In order to prove in court that a killing was murder (that is, directly related to the actions of the accused), the prosecution must show that at least one of the following exists: 1. the accused intended to deliberately kill the victim 2. the accused set out to inflict serious bodily harm, which resulted in death 3. the act was done with reckless indifference to another human life; that is the doing of an act with the foresight of the probability of death arising from that act 4. the act was done while committing or attempting to commit another serious crime punishable by life or 25 years’ imprisonment. Manslaughter: Manslaughter is the second type of homicide. It differs from murder in the intent of the accused Manslaughter involves a reduced level of intent and is punishable by up to 25 years’ imprisonment. A person may be charged with manslaughter where it cannot be proved that they intended to kill the victim to the degree required for murder. There are three main types of manslaughter: Voluntary manslaughter occurs when a person kills with intent, but there are mitigating circumstances (such as the defence of provocation) which reduces their culpability. For the crime to be classed as voluntary manslaughter, not murder, there must be mitigating circumstances. 5 Involuntary manslaughter is the killing of a person where the death occurred because the accused acted in a reckless or negligent way, but without intention to kill the person. The prosecution must prove that the accused consciously and voluntarily committed the act causing death, even without intent to cause death or serious harm, in a manner showing a significant lack of care and high risk of resulting in death or serious harm, justifying criminal punishment. Constructive manslaughter is the killing of a person while the accused was carrying out another dangerous or unlawful act. The manslaughter is ‘constructed’ from the other unlawful act. ○ For example, where a person assaults another person without intention to kill or inflict serious bodily harm, but death results, then the death may be construed as manslaughter by the accused. Infancide: Special category of manslaughter that applies to the death of a baby under the age of 12 months at the hands of its mother. The Crimes Act 1900 (NSW) requires that the court take into account the state of mind of the mother at the time she committed the crime. ○ Many women suffer from a condition called postnatal depression after the birth of a child. If the accused is found to have been suffering from this condition when she killed her baby it can be seen as a mitigating circumstance. Dangerous driving causing death It occurs when a person drives in an unsafe and reckless way, such as under the influence of alcohol or a drug, or at excessive speed, and in so doing causes the death of another human being. A conviction for this crime carries a maximum penalty of 10 years in prison. However, if the offence is aggravated by certain circumstances the penalty can be as much as 14 years’ imprisonment. Assault The most common form of crime against the person. Assault includes the offence of causing physical harm to another person and of threatening to cause physical harm to another person (known as common assault). Physical assault is a direct act in which force is applied to another person’s body unlawfully and without their consent and is punishable by up to five years’ imprisonment (or seven years’ imprisonment, depending on the location of the assault and the identity of the victim). A threat to cause physical harm can also be a form of assault where it causes the victim to fear immediate and unlawful violence – threatening phone calls, text messages or emails might constitute such a form of assault. Sexual Assault: Sexual assault is a type of assault where someone is forced into sexual intercourse against their will and without their consent. Sexual intercourse is defined broadly in the Crimes Act 1900 (NSW) to include different types of sexual acts including oral sex and penetration. Lack of consent is central to the crime of sexual assault and is defined in detail in the Crimes Act 1900 (NSW). 6 It states that a person is not consenting where they are: 1. substantially intoxicated by drugs and alcohol and therefore lack the capacity to consent 2. intimidated or coerced into the act, or if the accused is abusing their position of trust or authority over the victim. Indecent assault is another type of sexual offence, where the accused commits an assault and ‘act of indecency’ on or in the presence of another person without their consent. ‘Indecent act’ is not defined in the Crimes Act 1900 (NSW) but it includes assaults with a sexual element. This offence covers many sexual acts that are not included under the offence of sexual assault, such as touching the genitals or other parts of the body in a sexual manner without the person’s consent. Aggravated sexual assault in company: sexual assault performed with another person or people present together with aggravating circumstances Offence against the Sovereign: The laws are justified as protecting the structure, authority and integrity of the state and the citizens that it governs. Historically, such laws were more frequently used to prevent or punish attempts to overthrow or even criticise heads of state. Australia today is a stable parliamentary democracy, where objections are aired through protest, public comment, elections or law reform, and such laws have arguably fallen out of use. Treason: Treason was a common law crime in England long before it was first codified by King Edward III in the Statute of Treasons in 1351. The offence was defined as acts directed against the sovereign. At that time, the sovereign was the monarch; this was later widened to include heads of state such as the Prime Minister and Governor-General. The crime of treason was imported into Australian law from the UK and later enacted in New South Wales under Part 2 of the Crimes Act 1900 (NSW), and in the Commonwealth under the Crimes Act 1914 (Cth) and later under section 80.1 of the Criminal Code Act 1995 (Cth). Treason involves any attempt or manifest intention to levy war against the state, assist the enemy, or cause harm to or the death of the Governor-General, the Prime Minister. It is punishable by up to 25 years’ imprisonment (New South Wales) or life imprisonment (Commonwealth). Sedition: A seditious act historically involved any oral or written intention to bring the sovereign into hatred or contempt, and included inciting disaffection against the government or parliament. The laws were criticised as being open to abuse through silencing government opposition and public comment and endangering freedom of speech. In Australia, sedition laws had fallen into disuse until 2005, when the then Commonwealth Government, under Prime Minister John Howard, introduced a range of controversial anti-terrorism laws in the Anti-Terrorism Act (No 2) 2005 (Cth), which included a revived sedition law. The Australian laws, under section 80.2 of the Criminal Code Act 1995 (Cth), make it a crime to urge another person to use force or violence to a particular end, such as overthrowing the government or the Constitution or interfering in parliamentary elections. The offences are punishable by up to seven years’ imprisonment. 7 Crimes against property: Break and enter is another very common economic crime, more commonly known as ‘burglary’. The term refers to a series of offences in the Crimes Act 1900 (NSW) that generally occur when a person or people enters a room or building, such as a private residence, with the intention of committing an offence. Usually the offender will be doing so with the intention to commit another property offence, such as larceny. Larceny is the most common property offence and is more commonly known as ‘theft’ or ‘stealing’. It is also one of the economic offences that people are most likely to fall victim to at some time in their lives. Larceny occurs when one or more people intentionally take another person’s property without their consent and without the intention of returning it. The offence of larceny is punishable by up to five years’ imprisonment, depending on the type of larceny involved. Robbery occurs when the use of force is present in the act of stealing goods or when property is taken directly from a victim. If the robbery is accompanied by the use or threatened use of a weapon, the crime is called ‘armed robbery’ and will carry an even higher sentence. White-collar crime: Non-violent crimes associated with businesspeople or professionals. Embezzlement is when a person misappropriated another person’s property or money that they have been entrusted with. It occurs when an employee steals money from their employer, such as by transferring sums of money to the employee’s own account or stealing money from the cash register or petty cash tin. Embezzled money can be difficult to recover, even when pursued through the courts, as it may be untraceable or the offender may be unable to repay the money they have stolen. Tax evasion is a common white-collar crime and occurs when a person or company tries to avoid paying taxes to the government. Often it involves people fraudulently filling out tax returns stating that their income is lower than it actually is, or organising a business or property in a way that hides income or assets from the tax authorities. Insider trading is an offence related to the buying and selling of company shares. It occurs when a person (usually a stockbroker or company director) obtains confidential inside information about a company that will affect that company’s share price. The information will usually relate to the share price significantly increasing or dropping, which the offender will then take advantage of (for example, by buying or selling their own shares to reap the benefits or avoid the losses). Computer Crimes Fraud is another type of economic offence that can include white-collar crime, property offences and computer crime. Fraud refers to deceitful or dishonest conduct carried out for personal gain. It is often an element of other offences, such as fraudulent misappropriation, fraudulent personation or obtaining credit by fraud. Common types of fraud include identity theft, internet phishing (fraudulently posing as a legitimate website), or requesting funds or account details by email under fraudulent 8  pretences. Drug Offences In New South Wales, the Drug Misuse and Trafficking Act 1985 (NSW) outlines numerous offences related to prohibited or restricted drugs, with some additional offences included in the Summary Offences Act 1988 (NSW). The main federal legislation relating to drugs is the Customs Act 1901 (Cth), which will most often apply where there is an international element to the offence, such as cross-border drug trafficking. Possession of a prohibited drug – the drug must be in the accused’s custody or control, and the accused must know about it; this offence includes shared ownership of the drug or simply minding the drug for another person Use of a prohibited drug – the intentional consumption of the drug by any means (this will not apply if the use occurs in a medically supervised injecting centre) Cultivation – applies to the growth or cultivation of a prohibited plant, such as cannabis Supply of a prohibited drug – this is a broad offence including offering or agreeing to supply, whether or not the actual drug or money really changed hands; it can also include having drugs in your possession for the purpose of supply, and single or multiple instances of supply. Driving Offences Driving or traffic offences are some of the most commonly committed offences in New South Wales. Driving offences are included in both the Road Transport Act 2013 (NSW) and the Crimes Act 1900 (NSW). Punishment- fines will generally relate to strict liability traffic offences such as speeding. Traffic offences are regulated by New South Wales Roads and Maritime Services (RMS), which controls the demerit system through which offenders lose points from their driver’s licences if they are caught committing certain traffic offences. The most common traffic offences are: Exceeding the speed limit Driving without a licence or while disqualified Ignoring road signs Driving above the legal blood alcohol limit of 0.05. Public Order Offences Public order offences relate to acts that are deemed to disturb the public order in some way, such as a disturbance in or in sight of a public area. Summary Offences Act 1988 (NSW) and under Part 3A of the Crimes Act 1900 (NSW). Public order offences are often acts that society deems inappropriate or offensive when conducted in public, although they may be perfectly legal or acceptable within the confines of one’s own home. Some of the most common public order offences are: Obscene, indecent or threatening language or behaviour in public Possessing a knife in a public place without reasonable excuse Obstructing traffic or ignoring a reasonable police direction to ‘move on’ Damaging public fountains or protected places. Preliminary Offences - in the lead up to criminals committing another type of offence Preliminary crimes refer to offences that precede the commission of a crime or where the crime has not been completed for some reason; for example, it may have been interrupted or unsuccessful. Preliminary crimes fall into two main categories: attempt and conspiracy. 9 Attempt An attempt to commit a crime is considered an offence and will usually be punishable by the same penalty as if the crime had taken place. Section 344A of the Crimes Act 1900 (NSW) states that ○ ‘any person who attempts to commit an offence for which a penalty is provided … shall be liable to that penalty’. However, certain attempts, such as attempted murder, are dealt with specifically in the Crimes Act 1900 (NSW) and may carry a lower penalty. Conspiracy Conspiracy occurs when two or more people jointly conspire to commit a crime. The conspiracy is complete where an agreement (the act) is reached between the parties, with the intention also shown by each person’s explicit agreement to commit the offence. It may be difficult for a prosecutor to prove conspiracy without the aid of a confession or record, such as a signed document or phone tap, because the crime allegedly agreed to, did not take place. Conspiracy → Attempt → Economic offence Regulatory Offences Regulatory offences are usually set out in delegated legislation, such as regulations or local laws that address a range of day-to-day situations and standards. They differ from more serious offences set out in statute or common law, which can only be modified by parliament (or in some cases the courts), in that they are considered more minor offences with lesser penalties. They are usually determined by the government department or agency responsible for that area of law and policy and require faster or more frequent change than parliamentary legislative processes allow. Regulatory offences include: Watering the garden despite water restrictions being in place Breaching workplace health and safety regulations Travelling on public transport without a valid ticket Lighting a fire or barbeque on a day of total fire ban. Regulatory offences are usually strict liability offences, so they do not require any intention to be proved. ⚫️ Summary And Indictable Offences Summary offences: Minor Can be dealt with quickly Police Prosecutor Heard by a magistrate in the local court without a jury Must be brought within 6 months of occurring E.g. drink driving, shoplifting, possession, graffiti Summary Offences Act 1988 NSW Indictable offence: More serious and complex crimes 10  Requires a committal hearing (heard within 3 months of the offence) Director of Public Prosecutions (DPP) Tried before a judge and jury Role of the judge to determine the law and the role of the jury is to determine the facts E.g. murder, sexual assault Advantages: Much cheaper and quicker than a jury A judge is more experienced in weighing up evidence and will not be swayed by clever lawyers The charges may be dismissed ○ A ‘no bill’ application may be accepted - charges may be withdrawn No quick or early intervention of offenders Disadvantages: Judges often come from different backgrounds to the accused and may be unsympathetic The accused is not judged by ordinary people who reflect community values There is more room for possible abuses of state power because the community is not getting involved in the justice process The general public may have less faith in the system Denies the fundamental right of the accused to trial by jury ⚫️ Parties To A Crime Including Principal In The First Degree, Principal In The Second Degree, Accessory Before The Fact, Accessory After The Fact Principal in the first degree This is the principal offender, or the person who actually commits the criminal act. For example, in an armed robbery this would be the person who actually pointed the weapon and took the money. The principal offender will be directly responsible for the crime being carried out and so is likely to receive the highest sentence. Principal in the second degree This is a person who was present at the crime and assisted or encouraged the principal offender to perform the offence. For example, in the scenario above, this may be the person who kept a lookout by the door. The principal in the second degree may be given a lesser sentence, depending on the circumstances. Accessory before the fact This is someone who has helped the principal to plan or carry out the crime. An accessory before the fact is a person who has helped in planning or preparation before the actual act is carried out. Accessory after the fact 11  This is someone who has assisted the principal after the actual act is committed, such as by driving a getaway car or disposing of evidence. The parties to a crime are the people who have participated in the offence. The responsibility held by each party to a crime will determine the level of punishments. ⚫️ Factors Affecting Criminal Behaviour Psychological factors Psychological or pathological factors will often be relevant to the commission of an offence, with many forms of mental illness affecting a person’s behaviour. These factors will often be important during the criminal process, as early as the time of arrest or charge, or relevant to the accused’s state of mind and raised by either prosecution or defence during a criminal trial. Psychological factors contributing to the offence will also be relevant during sentencing, and particular sentencing programs, such as drug rehabilitation programs, will often focus on the accused’s psychological rehabilitation. Social factors Social factors influencing a person’s attitude towards crime may include their family situation or personal relationships. The social groups that people associate with will often influence a person’s attitudes and views of acceptable behaviour. In other areas of crime the environment that a person has been raised in could influence their behaviour as an adult. For example, a person brought up in an abusive home may have experienced certain traumas (such as assault or sexual assault, or instances of drug abuse) that may be replayed in their adult life unless the person receives effective treatment. Economic factors People from disadvantaged backgrounds are more likely to commit crimes and front our courts than any other group. For example, statistics released by the Australian Institute of Criminology show that one-third of male and one-half of female offenders receive a welfare or government payment as their main source of income. Poor education and lack of skills are often closely related to economic factors, with such criminals often habitually unemployed and unskilled. In some instances, offenders may view criminal acts resulting in a financial benefit, such as larceny or robbery, as necessary. Political factors Although not the most influential factors in criminal offences, political factors have played a role in criminal behaviour for centuries. Offences against the sovereign or the state are likely to have political factors influencing their commission. Some public order offences, such as riots, may also have political aspects, especially in situations where public political protests become intense. 12  Of course protesting itself is not an illegal activity; it is only when it is coupled with public disorder or dangerous behaviour that it becomes a criminal matter. Terrorism-related offences are some of the most extreme political offences, where the use of violence or intimidation will usually have explicit political aims. Genetic theories Genetic theories surrounding criminal behaviour have long been a topic of interest for scientists and criminologists. For example, in the early nineteenth century the science of ‘phrenology’ was born. Under this approach, criminals had their heads measured to determine whether there were any physical characteristics that could allow scientists to pick people as potential criminals. None of these genetic studies has been conclusive in showing that individuals with certain genes are more likely than those without them to commit crimes. ○ This suggests that the external factors listed above play the greatest role in criminal activity. Self-interest and greed Self-interest and greed will usually play some role in the committing of a crime, from drug offences committed for profit or for use, property offences for profit, offences against the person for revenge, and white- collar crimes such as embezzlement or insider trading. ○ White-collar crimes are good examples of criminal activity being driven by greed and self- interest rather than by underlying socioeconomic or political factors. ⚫️ Crime Prevention: Situational And Social Situational Crime Prevention: This type of prevention aims to make the situation where the crime takes place more difficult, more risky and less rewarding. → This is often referred to as “Opportunity reduction” There are 2 approaches: 1. Planning and architectural design (influence of physical environment on crime) 2. Focused approaches (rests on rational choice theory which views offenders as actors who weigh up risks, gains and costs) Social Crime Prevention: Social crime prevention is targeted at offenders and potential offenders. It aims to reduce the factors that are likely to cause a person to commit a crime, such as poor parenting and/or home environment, high levels of truancy and misbehaviour at school, drug addiction and exposure to criminal elements at an early age. ○ The government attempts to reduce crime by providing community assistance programs. 13 The Criminal Investigation Process Police Powers Role of the Police: Prevent as a deterrent Investigate crime Assist in prosecution of offender Statute empowers police to act: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) LEPRA Powers: Arrest Issue cautions and warnings Issue infringement notices (fines) To stop, search and detain –requires reasonable suspicion Seek warrants Reporting Crime Most crimes are detected or discovered by private citizens Neighbourhood watch Crime Stoppers: ○ This national community based program encourages local citizens to report information on unsolved crimes, unknown offences or suspicious activity accompanied with the right to remain anonymous if requested. ○ Campaign → Operation Roam/Rogue Radar Identification of a criminal act is often dependent on someone reporting the act, therefore, many crimes go unreported. Investigating Crime: Gathering Evidence, Use Of Technology, Search And Seizure, Use Of Warrants Investigating a crime: The police are the main initiators of criminal investigations. Discretion is used when deciding what areas to police, what types of crime to target and whether a reported crime warrants investigation. This can sometimes be a reflection of media demand and can cause political tension e.g. Macquarie Fields Riots and indigenous intervention This discretion is determined by the seriousness of the crime and resources available. Search and seizure: Part 4 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) sets out the powers given to police to ‘search people and seize and detain things’ in certain circumstances. Most controversial of police powers because they represent an intrusion into people’s privacy or personal space. Police in NSW have broad powers to stop and search any person where they ‘believe on reasonable grounds’ that the person is carrying anything stolen or used in commission of an indictable offence or another specified offence, a prohibited plant or drug, or a dangerous article in a public place. 14  Effectiveness Ineffectiveness Barry O'Farrell argued that: “they help “Police brutality is too often ignored or us get illegal weapons off the street and excused” (SMH, 2014). make our community safer” (The ○ Criticism in police discretion. Australian, 2013). ○ Abuse of police power. ○ Resource efficiency “Incidents were not effectively ○ Protecting individuals. investigated even when reported to the Ethical Standards Department” (SMH, 2014). ○ Balancing the right of society. Gathering Evidence: physical evidence must be documented in situ (where it is found) Collection of evidence is crucial to prosecute Physical evidence → Clothes, weapons etc Electronic → Photographs, records Witness statements Seen and heard It is important that the evidence gathered is sufficiently relevant to the case, and is the best possible evidence available to secure a conviction in court. All evidence must be obtained in a proper and lawful manner, as required by the Evidence Act 1995 (NSW). If it is not, it may be considered inadmissible at trial, and that may reduce the chance of conviction. Use of Technology: Created new crimes Assisted in the investigation and prevention of crime e.g. surveillance cameras Use of DNA for the identification of criminals In NSW there are strict rules about the use of DNA evidence and its collection in the Crimes (Forensic Procedures) Act 2000 (NSW) Arrest And Charge, Summons, Warrants Bail Or Remand Arrest: Police may not detain unless they lawfully arrest Police have the power to arrest a person if: ○ It is believed the person committed or is about to commit a crime ○ Police witness a person committing a crime ○ Police have an arrest warrant for the person ○ Police act on the grounds of ‘reasonable suspicion’ which is a subjective judgement. Legal arrest: ○ For an arrest to be legal the police must inform the person they are under arrest and why ○ Police must also issue a caution that the person will be asked questions they may refuse to answer and that their answers will be recorded ○ The police must ensure the caution is understood 15  ○ Failure to legally arrest makes subsequent information inadmissible Charge: Police has discretion whether to charge a suspect or let them go with a warning Decisions may be influenced by the offender’s race, family background or address. Suggestion that police may charge offenders with a more serious offence to encourage plea bargaining i.e. pleading guilty to a lesser charge to free time and resources of the court. Summons In the case of minor matters or summary offences → accessible and simple to understand Summons or court attendance notice may replace arrest Summons is a legal document which requires a person to attend court: ○ Details the charge ○ Outlines when and where charge will be heard ○ Outlines consequences of failing to attend Warrants Warrant = order issued by the court authorising a law enforcement agency to do something ○ Arrest Warrant – authorising police to arrest indicates a prima facie case ○ Search Warrant – enter premises to look for evidence The police may only search a person’s premises with consent or a search warrant A search warrant is issued if police have reasonable grounds to suspect the search will provide evidence relating to the commission of a crime’ Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) sets out the circumstances in which a search warrant can be used. When applying for a warrant the police must give substantial evidence and reasoning to the magistrate or judge to justify the granting of the warrant. Emergency warrants however can be offered over the phone when time is of the essence in the investigation of an offence. Effective Ineffective Foreign Minister Alexander Downer “Police in Canberra illegally gathered stated that, “There's a multitude of surveillance for more than a month after oversight" and “these are vitally the wrong judge issued the warrants” necessary powers … used appropriately (SMH, 2014). and properly in the circumstances” ○ Resource efficiency. (SBS, 2007). ○ Equality. ○ Limits police discretion ○ Ensuring justice is achieved. ○ Rule of law ○ Balance victims, offenders & society. Bail The temporary release of an accused person awaiting trial, sometimes on particular conditions such as lodgement of a sum of money as a guarantee, a surety. 16 The Bail Act 2013 is a New South Wales law that came into effect on 20 May 2014. It replaces the Bail Act 1978, which was considered "groundbreaking" when enacted, but has been reformed several times to presume against bail. The new act was created with the aims that it would be easier to understand, would further protect the community and would promote consistent decision-making. Section 32 of the Bail Act 1978 outlines the things the magistrate is to take into account in awarding bail. The weight given to these factors rely on the discretion of the magistrate. E.G - R v Wakefield 1969 Judge stated that the most important consideration in granting bail was to ensure that the public interest was served while allowing the accused the fairest possible trial. The Court must consider: Severity of the crime, Likelihood that the accused will return for trial, Probability that the accused will be found guilty, Possibility that the accused may interfere with witnesses. Consequences of the Bail Act: The NSW adult prison population grew by 6.5 per cent between July 2015 and June 2016, reaching 12,550 in June this year. This brings the total increase in the NSW adult prison population over the last two years to 21 per cent. The growth in the remand population over the last 12 months is due to an increase in remand receptions and the length of time being spent on remand. Source - BOCSAR June 2016 Remand Remand will usually be sought and imposed for certain offences, particularly violent offences or where there is some risk to the community or risk that the accused may commit another offence The accused will remain in detention until the trial date, then throughout the trial and until they are sentenced If the accused is found guilty and convicted, the time the offender has spent in remand is usually taken off the total time of their sentence. The accused is held on remand if: ○ The individual has previous convictions for similar offences. ○ There is reason to believe that the individual may fail to turn up at the trial. ○ There is reason to believe that the individual may interfere with witnesses. ○ There are reasonable grounds to believe an individual would commit further offences before their trial Detention And Interrogation, Rights Of Suspects Detention and Interrogation A police officer may detain a person, who is under arrest, for the investigation period provided for by section 115 LEPRA. The person must be: ○ Released (whether unconditionally or on bail) within the investigation period, or ○ Brought before an authorised officer or court within that period Investigation period = 6 hrs or extended by detention warrant Rights Of Suspects Common law right to silence 17  Right not to be searched, only with a warrant The right to be released from custody if a charge is not made within a reasonable time (6-8 hours) Right for confessions to be free and voluntary Right for a minor to have an independent adult person present Limited right to legal advice – Dietrich v the Queen 1992 Criminal trial process Court Jurisdiction High Court Highest court in australia (highest) Highest Court in Australia since the Australia Act 1986 (Cth) ○ Section 71. Australian Constitution - constituted under the judiciary act No original criminal jurisdiction, only appellate jurisdiction. To appeal to the high court must show appeal: ○ Relates to a matter of public importance ○ Is required in order for justice to be served ○ Is required because of confusion between earlier rulings in various courts NSW Court Of Hears appeals from: Criminal Appeal A single judge of the Supreme Court District judge Bench of 3 judges In most cases the prosecution has no right to appeal an acquittal (due to Double Jeopardy) but can appeal the leniency or harshness of sentence In 2006 the Crimes (Appeal and Review) Act 2001 (NSW) was amended so that in the case of a very serious crime when penalty is 15yr-life an acquittal can be quashed if there is fresh evidence or the acquittal was tainted This means double jeopardy is now limited to less serious crimes NSW Supreme Serious indictable offences such as murder and treason Court Matters presided over by a single judge with a jury of 12. Court consists of a Chief Justice and a number of senior judges appointed by the Governor Established under the Charter of Justice (1823) Hears appeals from local court where magistrate makes an error of law – stated case NSW District Created by District Court Act 1973 (NSW) Court Civil matters up to $150,000 Generally matters are heard by judge and jury Covers all indictable offences except murder, attempted murder, treason, serious sexual assault and kidnapping Takes appeals from the local court The District Court involves significantly more formality than the Local Court, and thus matters will usually take longer to be heard and result in greater cost to both the accused and the prosecution 18  Drug Court Specialised diversionary court set up in 1999 under the Drug Court Act 1998 NSW as a two year pilot So successful has continued and expanded Cases involving non-violent drug related crimes Aims to divert drug dependant offenders to rehabilitation Offender must plead guilty, court is a sentencing court Normally results in a prison sentence Has both local and district court jurisdiction Children’s Court Childrens Court Act 1970 Hears any matter, summary or indictable where the accused is: ○ Less than 18 when charged ○ Less than 21 when charged if the crime was committed when less than 18 Exceptions: homicide, aggravated sexual assault and some traffic offences (heard in closed Supreme Court) Matters heard in closed court Focus is on rehabilitation of the offender and cannot sentence offender to an adult prison Local Court Magistrate addressed as ‘your honour’ Created under Local Courts Act 1982 (NSW) Two main functions: Hear and decide cases in summary offences or minor indictable offences (magistrate no jury) Conduct committal hearings for an indictable offences (judge hears the case to determine if there is sufficient evidence to proceed – a prima facie case) Coroners Court Task is to determine if there is sufficient evidence to suggest a criminal act has occurred and refer to a higher court Coronial inquests can result in changes to the law or the introduction of new rules of regulations governing a practice within the community. Coroners Court Act 2009 (NSW) Investigating in the circumstances of death - not bound by the rules of other court’s Original jurisdiction - unexplained deaths, unattended deaths or deaths in hospitals The Adversary System The adversary system is a system of trial which aims to resolve disputes between individuals or decide on guilt or innocence on criminal charges. There are 5 major aspects of the adversary system; 1. Legal representation a. This allows a defendant in either a civil or criminal trial to be represented by a lawyer in court. These legal representatives may be solicitors in local courts for lesser matters or barristers in superior courts for more serious crimes or disputes involving larger sums of money. 2. Examination of witnesses 19  a. In a trial the lawyers conduct witness examinations to establish the facts of the case and the reliability of witnesses. Lawyers can also introduce documents or other items as evidence called exhibits. b. Examination takes the form of questioning witnesses. Examination in chief is when the lawyer examines their own witnesses. c. This questioning allows the lawyers to obtain clear consistent evidence from their own witness. Cross examination gives lawyers a chance to question the witness from the other side 3. Jury a. A jury is a group of 6-12 people (depending on whether it’s a civil or criminal trial). b. The Jury’s purpose is to listen to the evidence in court and decide on the facts of a civil case or the guilt or innocence of a defendant in a criminal trial. c. In all cases the judge decides and makes clear to the jury determinations regarding questions of law. 4. Judge a. The role of the judge is to pass judgement on a case presented by the lawyers. In doing this the judge must: (1) ensure trials are conducted according to the rules of evidence and procedure, (2) listen to legal arguments and interpret the law according to the case, (3) direct juries as to the law that will be applied and questions of fact they must decide, (4) pass judgement on issues, (5) decide on a punishment if the accused is convicted 5. Right of appeal a. A client can be given leave to appeal to a higher court if they think that the judgement was flawed. b. In civil cases the plaintiff may appeal for higher damages or the defendant against the sum awarded. In criminal trials the defendant may appeal on a matter of law or against their sentence. Legal Personnel: Magistrate, Judge, Police Prosecutor, Director Of Public Prosecution, Public Defenders Magistrate: Magistrates are the judicial officers who preside over hearings in the Local Court. In criminal law, magistrates will hear summary proceedings in the Local Court, as well as indictable offences triable summarily where the accused has consented to the case being heard by a magistrate. Once a magistrate has found an accused person guilty, they will also pass sentence. Magistrates also conduct committal proceedings for indictable offences and will usually hear bail proceedings. 20 Judge Judges are the judicial officers who preside over the intermediate and superior courts – the District Court and the Supreme Court. Judges oversee proceedings, maintain order in the courtroom and ensure that the procedures of the court are followed. Judges will make decisions about points of law and give instructions to the jury to make sure they understand the proceedings and the evidence presented to them. Prosecutor The police must undertake an intensive and exhaustive investigation of the matter and gather all the evidence and information that will be used at trial to form the case against the accused. The police will often also be required to give testimony at the trial to aid the prosecution’s case. Director Of Public Prosecution The DPP will also conduct some committal proceedings for indictable offences. The DPP is an independent authority that prosecutes all serious offences on behalf of the New South Wales Government. It is their job to prosecute the case using the evidence gathered by the police. ○ The role is to present evidence, ask questions of the witness on the stand and draw out the truth from the evidence and testimony given by the witnesses. The independence is to ensure that cases selected for prosecution are chosen on their merits Public Defenders Where an accused cannot afford to pay for a barrister or solicitor, they may be granted access to a public defender. Public defenders are barristers who appear in serious criminal matters for an accused who has been granted legal aid Pleas, Charge Negotiation Charge: Form of accusation against a person (not an accusation of guilt) Authority to charge a suspect with a crime → Law enforce agencies (Police, The Australian Customs Border Protection Service) Plea: An accused person’s response to the charges they are facing Guilty Plea: matter proceeds straight to sentencing (committal hearing) Not Guilty Plea: case must go to trail for the submission of evidence and presentation of witnesses No Plea: taken as not guilty 80% of criminal cases pleads guilty Charge Negotiation (plea bargaining) = case conferencing ○ E.G Families of Hunter Valley bus crash victims ‘devastated’ by driver’s plea deal - 21  https://www.theguardian.com/australia-news/article/2024/may/08/hunter-valley- bus-driver-brett-andrew-button-plea-deal-guilty-dangerous-driving-ntwnfb ○ Negotiation of charges between the defendant and the prosecution to get the accused to plead guilty (save money and time) ○ Ways charge bargaining takes place: Accused is facing several charades in relation to the same crime, prosecution may drop some charges in relation to a guilty plea Judge may give an indication of what a likely verdict will be which prompt a guilty plea Charge reduced to a lesser charge if the accused pleads guilty e.g murder to manslaughter Arguments for: Speeds up criminal process Increases rates of criminal convictions Conviction to a lesser charge is better than no charge at all Simpler trial – resource efficient Saves witnesses the ordeal of giving evidence Arguments Crimes may go unpunished or the admitted crime may be against: insufficiently punished May put pressure on the accused which may result in an innocent person pleading guilty Accused may get a lighter sentence than he/she deserves Lacks consideration of the victim Prosecutors may threaten more serious charges to encourage a plea May increase the chance of recidivism Is not an open process so excludes society E.g: Early Guilty Plea Legal Explanation Incentive for an offender to give an early guilty plea is provided for under the ‘Crimes (Sentencing Procedure) Act 1999 (NSW) caps are placed on the discount available to offenders. This was recently amended by the Justice Legislation Amendment (Committals And Guilty Pleas) Act 2017 (NSW), which offered the following incentives: A 25% reduction on an imprisonment sentence where the guilty plea is entered in the Local Court before committal ○ Resource efficient (time and money) A 10% reduction on an imprisonment sentence for a plea received not less than 14 days before the first day of trial A 5% reduction on an imprisonment sentence thereafter Effectiveness Balancing or protecting the rights of victims ○ Reduce stress on victims by resolving criminal cases faster Resource efficient ○ Reduce the District Court backlog, leading to swifter justice for the community ○ Reduce time and money wasted on police, courts and lawyers preparing for trials that don’t go ahead Achieve justice/rights of offenders ○ See offenders enter programs to address their offending 22  behaviour earlier ○ Ensure guilty pleas are only entered by defendants where appropriate Ineffectiveness Achieve justice/rights of victim ○ Crimes may go unpunished or the admitted crime may be insufficient punished ○ Lack of consideration of the victim ○ Is not an open process so excludes society ○ Accused may get a lighter sentence than deserved Rights of suspect/offender - achieves justice ○ May put pressure on the accused which may result in an innocent person pleading guilty - an accused may plead guilty to a crime of which they are innocent commit ○ Prosecutors may threaten more serious charges to intimidate the accused into pleading guilty to lessen the charge ○ May lead to bullying or manipulation of the accused to forfeit their right to trial Legal Representation, Including Legal Aid Legal Representation: The representation by a qualified lawyer. It is necessary as it upholds the right to a fair trial. Legal Aid Legal Aid is a subsidised legal service provided by the state for low-income earners. A means test assesses the defendant’s income and assets to determine whether or not they have the means to pay for legal representation. Legal Aid Commission Act 1979 (NSW) Dietrich v The Queen (1992) ○ Dietrich applied for assistance from the Legal Aid commission of Victoria but they would not represent him unless he pleaded guilty to all charges, additionally he applied to the Supreme Court of Victoria for legal assistance but his request was also denied. ○ The judges in the High Court decided that Dietrich had the right to a fair trial, and the lack of legal representation meant that the original trial was unfair ○ The right to legal representation was applied to all of Australia. Burden And Standard Of Proof Burden of proof: the responsibility of a party to prove the case against the accused. Standard of proof: the level of proof required for a party to succeed in court Use Of Evidence, Including Witnesses Defences To Criminal Charges: Evidence Act 1995 (NSW): The way evidence must be obtained in order to be used in a court. Types of Evidence Real Evidence 23  ○ Physical evidence, which can be presented to the jurors in a trial. This may take the form of tape recordings, charts to help explain evidence, photographs, fingerprints, DNA test results, and exhibits such as weapons and clothing. Documentary Evidence ○ Original documents gathered during the investigation. Witness Testimony ○ A witness might be someone who saw some aspect of the crime take place, or someone who simply has some relevant knowledge about an aspect of the case that supports the prosecution’s or defendant’s argument Complete Defences Mental illness Claims that a disorder of the mind prevented the person understanding the nature or consequences of their acts If found not guilty, the offender is admitted to a mental institution where they will be monitored by the Mental Health Review Tribunal. It is the responsibility of the defence to prove the insanity. Example: In the case of R v Porter (1936), Porter was found not guilty of murdering his eleven-month-old son based on medical evidence that he suffered depression and had a near breakdown, furthered by the fact that he was under the influence of prescription drugs. Accident and The action was honestly and reasonably made, and was an uncontrollable/ unforeseeable Error consequence of the defendant's action (no mens rea). Example: Hitting a ‘J-walking’ pedestrian with a car without seeing them beginning to cross the road. Duress and The offender must admit to committing the crime (actus rea) and knowing it was a crime Necessity: (mens rea) and then claim to have been forced. Defence has two forms: ‣ Necessity: They committed the offence to avoid a worse outcome. ‣ Duress: They committed the offence under threat or intimidation. Jury must believe the offender thought the threat was genuine. Example: In the case of R v Dudley and Stephens (1884), the defendants claimed necessity as they murdered and fed on the body of Parker on the 20th day of being stranded at sea. Whilst they were initially to serve life imprisonment, the sentence was abolished after a short period of time in gaol. Consent Victim freely allows the offence to take place; did not commit the necessary actus reus. Cannot be used in relation to murder, and is most commonly used in sexual assault cases. Example: In the case of R v Mueller (2005), the accused, who was at the time a caretaker of people with disabilities, allegedly sexually touched a patient, and argued that they consented. However, the NSW Court of Criminal Appeal found that, “submission is not the same as consent” and so the defendant was liable to sexual assault charges. 24 Automatism Criminal responsibility does not attach to an act done in a state of automatism, that is, where the act is not done in consciousness of the nature of the act and in exercise of a choice to do an act of that nature. The defendant denies mens rea. This is usually argued in relation to medical conditions like epileptic seizures, sleepwalking or shock. Self-Defence The exercise of reasonable force to defend or protect yourself, another person or your property. The accused had mens rea and actus reus, but is justified in committing the crime. It must be established whether the accused genuinely believed that the level of force used was necessary, and whether another reasonable person would have used a similar level of force in the same situation. The defence must first admit to the crime. Example: In the case of Zecevic v DPP (1987), the accused argued self-defence to justify how he shot and killed his neighbour, who had allegedly previously stabbed him and threatened him. The High Court ruled that the force used was unnecessary, and so the defendant was liable to imprisonment for murder. Partial Defences To Murder Provocation Victim causes the accused to lose control. For the jury to accept this it must be shown that the victim must have caused the defendants behaviour and the provocation was so bad that an ordinary person would have been provoked into the crime. The accused had mens rea and actus reus (causation), but has an excuse. Can only be used as a defence to reduce murder to manslaughter. The ‘abuse excuse’ or ‘Battered Women’s Syndrome’ became part of the law of provocation when the law recognised that provocation may occur over a long period of time and there may be no act of violence immediately before the murder This was established by the case R v Hickey (1992) NSW. Example: In the case of The Queen v Damian Karl Sebo (2007), the Supreme Court of Queensland found that the sexual taunts made by Damian Sebo’s sixteen year-old girlfriend, which centred on her cheating on him, were sufficient provocation, causing him to murder her by bashing her to death with a steering wheel lock. He was found guilty of manslaughter (not murder) and sentenced to ten years imprisonment. Substantial The defence argues diminished responsibility. impairment That the offender suffers abnormality of the mind (can not form mens rea) that impairs of their mental responsibility (easier to prove than insanity). responsibility Still have to show a mental disorder but it can be less severe. Example: In the case of R v Byrne (1960), Bryne’s uncontrollable, violent, sexual desires which led him to homicide resulted in the charges being dropped from murder to manslaughter. 25 Intoxication A sane person being so affected by drugs or alcohol that they had no control over their actions. Self induced intoxication is not usually accepted as a defence but accidental or fraudulent intoxication may be used as a defence for murder as a subset of diminished responsibility Self- defence Excessive use of force in self defence will reduce a charge of murder to manslaughter. It is not a complete defence. The Role Of Juries, Including Verdicts Jury Act 1977 (NSW). A jury is a panel of citizens whose job it is to determine the guilt or innocence of the accused based on the evidence presented to them at trial. In a criminal trial there are 12 jurors. Eligibility: Australian citizen Over 18 On the electoral roll Exemptions are rare but often include: over 65 yrs old, pregnant, caring for children full time, don’t speak English, work in emergency services, have a disability, are convicted criminals or who are members of the legal profession. Challenging Jurors Both sides are able to challenge jurors to ensure that the trial is fair. Challenges for cause are based on a person not being qualified to serve on a jury being ineligible or disqualified, or being suspected of bias. Both sides can also exercise a certain number of peremptory challenges of prospective jurors, without having to give a reason. Role of the Jury Sworn in before the case Listen to evidence Apply the law Come to a verdict Verdict If the jury does not come to a decision it is called a ‘hung jury’. In this case, the case is dismissed and a retrial will be ordered. In 2006, the Jury Act 1977 (NSW) was amended to the Jury Amendment Act 2006 (NSW) allowing for majority verdicts of 11 to 1 or 10 to 2 juries after a time for reasonable deliberations had passed. The jury determines the verdict, while the judge determines the sentence. Sentencing and punishment Statutory And Judicial Guidelines Statutory Guidelines: The Crimes (Sentencing Procedures) Act 1999 NSW outlines: The purposes of punishment The types of penalties that can be imposed and for which crimes they can be imposed The range of factors to be considered and general guidelines for sentencing Determines minimum and maximum sentences → judicial bodies must comply 26 Criticism: Removes the ability of a magistrate or judge to consider individual circumstances of the case. Limitations on judicial discretion → discretion is compromised Judicial guidelines: Magistrates and judges are guided by two things: 1. Precedent 2. Guideline judgements Precedent- case law will often be cited by the prosecution or defendant in a sentencing hearing. The magistrate/judge may also use other judgments to influence and inform their decision making process. Guideline judgements- The New South Wales Attorney General can apply to the court for guideline judgments for particular offences. The judgments are issued by the NSW Court of Criminal Appeal after hearing arguments from the Director of Public Prosecutions and the Senior Public Defender. The Purposes Of Punishment: Deterrence (Specific And General), Retribution, Rehabilitation, Incapacitation Rehabilitation (reform) Attempts to deal with the issues and problems of criminals in a more sympathetic way by identifying the cause of offending and addressing these issues Main goal is to reduce recidivism = a pattern of repeated occurrences of criminal behaviour Evidence suggests that this is most effective in relation to relatively minor offences Effectiveness: More effective if the offender is not in prison More serious offenders are often too hardened to respond to rehab programs Harsh and dehumanising environment of prison is not conducive to effective rehab Requires the criminals cooperation If it aims to ‘cure the offender’ should they then be released? Society funded training and education programs not offered to non-offending citizens Balance against the cost of recidivism Deterrence General deterrence = makes an example of the criminal to deter others from committing the crime Specific deterrence = aims to deter the criminal who is being charged from committing further crimes Example - R V Tideman 1976 FACTS: Tideman was caught buying $640 worth of cannabis and was charged with possessing a drug for the purpose of trading it. This was his second offence (previously $200 fine and good behaviour bond). Sentenced to 6 months hard labour ISSUE: Tideman appealed the severity of the sentence AUTHORITY: It was recognised that although it was unlikely that Tideman was trading commercially and that cannabis was a less serious drug, the purpose of the sentence was not to reform but to act as a deterrent and send a message to the community that drug laws would be enforced. 27 Retribution Punishment inflicted on someone as vengeance for a wrong or criminal act Natural for the victim to want revenge Punishment seeks retribution on behalf of the victim Incapacitation Stops criminals from committing further crimes by imprisoning them This is the most direct way of protecting society from criminals In some ways it is an admission that the prison system cannot effectively rehabilitate offenders Reintegrative/Restorative Shaming This type of punishment aims to shame offenders by bringing them into contact with their victims. Through this it is hoped that the criminal will understand the effect of their acts on the victim and the wider community It requires the offenders to express remorse for their actions, apologise and repair the harm caused Commonly used with young offenders Ensures young people takes responsibility for their actions Reduces court and detention costs and involves the victim in the justice process. Factors Affecting A Sentencing Decision: Aggravating And Mitigating Circumstances Aggravating Circumstances: Circumstances that make the offence more serious and can lead to an increased sentence Makes the offence more serious - likely to result in more severe sentence E.G: OFFENCE: violence, gratuitous violence, cruelty, weapons, threat, hated, prejudice, company, organised crime E.G: Victim: age, occupation E.G: OFFENDER: position of trust/authority, reoffender, prior convictions Mitigating Circumstances: Circumstances that make the offence less severe and can lead to a reduced sentence. Partly excuse the actions of the offender - likely to reduce sentence. → are raised at the sentence hearing and not the trial Offender: good character, no prior convictions, youthful, inexperienced, pleaded guilty, assisted police, shown remorse, good rehab prospects, under effects of alcohol/drugs, experienced similar treatment, minimal education The Role Of The Victim In Sentencing Victims Rights Act 1996 (NSW) replaced with Victims Rights and Supports Act 2013 (NSW) Victims roles include: Reporting a crime 28  Assisting police Testifying at trial as a witness Victim Impact Statement Victim Impact Statements Section 26 of the Crimes (Sentencing Procedure) Act 1999 (NSW) A victim impact statement is a voluntary statement written by the victim about the impact that the crime has had on them. Appeals The main law authorising and detailing the right to appeal for either party (prosecution or defence) is the Crimes (Appeal and Review) Act 2001 (NSW). In general terms there are two grounds for appeal 1. An error of law (question of law) a. This ground for appeal asserts that the law has been incorrectly understood or applied → The defendant is asserting that the harshness of the sentence was based on an error in application of the law. b. Such an error could arise from misinterpreting the statutory criteria sentence is particular subjective or objective factors. 2. A mistake of fact (questions of fact) a. The second ground for appeal is based on mistake of fact or question of fact. Issue is how evidence is interpreted. b. It is possible that the actual facts (including the actual offence) have been mistaken or misunderstood. c. E.G: This was the case with Gordon Wood, 2018. Wood was originally convicted of throwing his girlfriend Caroline Byrne off a cliff. However the evidence of an expert witness, that was accepted in the original trial, was found to be highly dubious. The forensic evidence, on which the original conviction was based, was found to not be factual and thus there were mistakes of fact. Types Of Penalties Types of Explanation Penalties No The court will find the offender guilty but dismisses the charge without recording a conviction conviction. recorded Court will take into account: ○ Character, criminal history, age, health, and mental condition. ○ Trivial nature of the offence. ○ Extenuating circumstances of the offence. Caution Police may caution for minor drug offences and caution children. Formal warning in the form of a document. Kept on record and the offender will be told what will happen if they re offend. 29 Fine Monetary penalty. Most common type of punishment issued in Australia. For less serious offences. It may stand alone or be in addition to another penalty. Creates revenue for the state. Formal equality: however those with wealthier backgrounds won’t be as affected as someone with a low socioeconomic background. Bond The court may find a person guilty but order the charge to be dismissed and enter into a good behaviour bond for up to 2 years (sometimes up to 5 years). Compulsory condition imposed on the offender for a period of time. The offender agrees to comply to the bond in exchange for a lenient sentence. If a person breaches the bond, the court may bring the defendant back and issue a new sentence for the original offence. Suspended Serious punishment. sentence It’s imposed in place of imprisonment on the condition that the offender enters into a good behaviour bond for the same period of time. A court can impose a suspended sentence where it is sentencing an offender to imprisonment up to 2 years. (if it’s over 2 years, this isn’t an option). If broken, the original prison sentence is reinstated. Providing an opportunity to rehabilitate. Allows maintenance of family and community ties including employment. Cost effective. Probation Serious matters. A court may decide to order a bond with a probation attached. This means the offender will be placed under the supervision of a probation officer appointed by the court for a period of time. Will impose this where there is a high danger of reoffending. If it is breached, offender goes back to court and risks facing a higher punishment. Criminal Issued for 7 different types of crimes: infringement ○ Stealing less than $500 notice ○ Offensive language and behaviour ○ Unlawful entry on boat or car ○ Obstructing traffic ○ Obtaining a benefit by deception On the spot fine - strict liability offence. Reduces clerical work. Does not result in criminal record unless challenged and proved. Community Ordered to carry out community work instead of going to jail. service order Not more than 500 hours. Much cheaper to supervise than imprisonment. Encourages a degree of rehabilitation. Maintain family and community life. Home Custodial sentence can serve sentence under house arrest. detention Must stay in approved residence for specified times. Strict supervision with the monitoring of offenders. Not available for more serious offences. Periodic Applies if sentence is less than 3 years. 30 detention Detention period usually 7pm Friday until 4pm Sunday. Allows for employment to be carried out during the week. Still disrupts liberty and personal life. Forfeiture of Money or property that offenders have obtained through criminal activities can be assets recovered from offenders in many cases under the proceeds of crime legislation. This confiscation action may occur in addition to other consequences such as a fine or imprisonment. Especially common in white collar crimes. Imprisonme Can only be imposed after considering all other alternatives. nt Includes maximum and minimum terms to be served. Harshest punishment. Maximum period is a non parole period set for some crimes under Crimes (sentencing procedure) Act 1999. Parole period may reduce by up to but no more than ⅓ maximum term. Diversionary Under the Migration Act 1958 (Cth), sections 200 and 201 states that if a non-citizen programs commits an offence and are sentenced for more the 12 months or more in their first 10 years of residence, the responsible minister can decide for their removal. They are deemed too dangerous to stay within the country. The minister of immigration is responsible for the overall decision. (They decide whether or not they are deported). The deported may also be prohibited from returning to Australia. Implications: → Possible hardships can be caused for the offender and their family → Controversial as they appear to treat the offender as a problem rather than helping to rehabilitate into society. Alternative Methods Of Sentencing Including Circle Sentencing, Restorative Justice Circle Sentencing The Circle Courts are designed for repeat offenders and those who have committed more serious crimes. Circle sentencing is based on Indigenous customary law and more traditional Indigenous forms of dispute resolution. It involves community members and a magistrate sitting in a circle to discuss the offender’s crime and then tailor the most appropriate sentence for the offender. Effectiveness Ineffectiveness “Indigenous people represent more than 28% Circle sentencing is culturally specific that is of Australia’s prison population” (BOCSAR, exclusive to Indigenous people only, 2016). ○ Rule of law ○ Balancing the rights of offenders. ○ Inequality. This form or restorative justice takes a holistic A 2008 BOCSAR evaluation of the program approach in sentencing and punishment, revealed that circle sentencing currently fails to allowing the legal system to address criminal mitigate recidivism in the Indigenous activity in the Indigenous community on a community, unsuccessfully “reducing the 31  local scope through victim, offender and Elder frequency, seriousness and time between participation. This involves easy to understand offences”. (BOCSAR, 2008). language and reduced racial bias. ○ Need for reform ○ Compliance. ○ Achieving justice. Restorative Justice: Involves bringing together the offender and the victim of the offence. It provides an opportunity for the offender to take responsibility for their actions and the impact they have had on others, while giving victims a voice and an opportunity to confront the offender and work out a way to repair the damage done. A program run by the Restorative Justice Unit of the NSW Department of Corrective Services and involves safe and private conferencing and mediation services run by a facilitator. The effectiveness of programs for offenders is unclear, but Australian studies based on youth conferencing initiatives have shown that a 15-20% reduction in reoffending is possible. Effectiveness Ineffectiveness Many victims have found the the restorative “Restorative justice programs don’t deal with the justice program significantly helpful for problems underlying juvenile offending such as recovery from a crime poor parenting, poor school performance, Australian studies based on youth impulsive behaviour, drug or alcohol abuse and conferencing initiatives have shown that a joblessness. By the time children face the justice 15–20% reduction in reoffending is possible. system, whether in a court or in a conference with their victims, it’s too late.” (SMH, 2012). ○ Achieving justice. ○ Resource efficiency. Post-Sentencing Considerations Security Classification Upon entering prison, a prisoner is given a security classification by the NSW Classification Committee under the Crimes (Administration of Sentences) Regulation 2008 (NSW). This classification is based upon: The seriousness of the offence committed. Their prospects for rehabilitation. Whether or not they have displayed good behaviour during previous sentences. High risk categories: Contains male prisoners given an AA, A1 or A2 classification and female prisoners given a 4 or 5 classification. Prisoners in this category are considered to pose a risk of good order and security and are confined in maximum security prisons. Maximum security centres include the Goulburn Correctional Centre for men or the Silverwater Women’s Correctional Centre for women. 37% of all prisoners in NSW are in high security prisons. Medium risk categories: Male prisoners given a B classification, female prisoners given 3 classification. Confined in medium security prisons with secure physical barriers. Low risk categories: Male prisoners given a C classification, female prisoners given a 1 or 2 32  classification. Confined in open security prisons - Doesn’t need physical barriers, prisoners aren’t constantly supervised. In NSW, 29% of prisoners are in open institutions. Implications of security classification The way a prisoner is classified is important because it determine which prison he or she serves the sentence and which rehabilitation process the offender has access to. It also determines privileges to which the prisoner is entitled, and the kinds of offenders the prisoner is likely to serve time with. ○ A high risk category prisoner generally has fewer privileges and will serve his or her sentence in the company of other serious offenders. These factors have an effect on the offender’s prison experience and on his or her chances of integrating back into the community when released from prison. Protective Custody Protective custody is provided in NSW correctional centres to offenders who are vulnerable to attack from other prisoners. Prisoners who feel they are are in danger from their fellow prisoners can ask to be placed in protective custody, which means being separated from the prisoners whom they may fear. ○ Correctional authorities have a duty of care for the safety of offenders in their custody. Implication of protective custody: While protective custody protects the prisoner from harm. Such protection restricts the opportunities for those in custody to work and to access education programs Offenders who have been placed in custody for offences that other inmates deem offensive, such as offences against children, might be under the harm of fellow inmates and may require periods of protective custody. Reasons such as race, sexual preference, disability, because of the crime they committed or because they have informed on other criminals Inmates considered ‘high risk’ ○ Politicians (due to their history) ○ Police officers (due to their history) ○ Offenders against children Parole Parole refers to the conditional release of a prisoner from custody after the completion of the minimum term of the sentence (non-parole period). To be granted parole, an offender must serve at least ⅔ of their sentence. Aim: of parole is to provide the offender with an incentive for rehabilitation, and to gradually reintegrate them into the community for life after imprisonment. The Parolee (released offender) must report back to their parole officer as required by the courts and at times the officer may visit their place of residence to ensure they are meeting the requirement of their release. A parolee may be required to meet the conditions of a good behaviour bond, not reoffend during the parole period, gain employment and/or avoid certain company or a specified public area. Implications of parole: ○ Encourages prisoners to behave well and undertake rehabilitative activities in the hope of an early release. Preventative Detention Covered under the Crimes (High Risk Offenders) Act 2006 (NSW) which advise established Preventative Detention as a way of "protecting the community from possible harm caused by serious offenders reoffending." 33  ○ Preventive detention involves imprisonment of a person for some type of future harm that they may commit. ○ Australian jurisdictions (state governments) have legislation enabling general powers of preventive detention in restricted circumstances. Preventive detention is considered to be one of the harshest forms of sentencing as it detains those who have already served their sentence. A form of preventative sentencing is commonly seen in Part 2A of the Terrorism (Police Powers) Act 2002 (NSW), which allows for Police to make an "application to detain a person in custody for a maximum period of 14 days if they reasonably believe the suspect will otherwise engage in a terrorist act." Continued Detention Ongoing detention of a person who has already served the full sentence for their offence - involves detaining offenders after they have served their full sentence for the offence they committed. Used to detain serious offenders past the length of their sentence if to pose danger to the community. Crimes (Serious Sex Offenders) Act 2006 (NSW) that allows for the continued detention of offenders serving a sentence for a serious sexual offence. The Attorney- General can apply to a court if satisfied ‘to a high degree of probability’ that the offender will reoffend. It is used: ○ to ensure the safety and protection of the community. ○ to facilitate the rehabilitation of serious sex offenders. EXAMPLE https://bravehearts.org.au/wp-content/uploads/2016/06/Continued-detention_2013.pdf Sexual Offenders Established under the Child Protection (Offenders Registration) Act 2000 (NSW). Registration A person convicted of specified violent or sexual offences against a child must register at the local police station when the person is sentenced for the offence, or when the person ceases to be in government custody in relation to the offence Aim: registry is a web-based system designed to assist police with the registering and case management of those who have committed sexual offences against children. Offenders will be required to provide a range of personal information as well as travel plans and to keep this information regularly up to date. Implications: they target certain offenders long beyond the period of the sentence they have been required to serve deny the chance for the offender to m