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Criminal Law

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The Nature of Crime 

The four legal characteristics of a crime are as follows:

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A crime is any act or omission that results in harm to society.

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Any criminal act or omission before the law is punishable by the state.

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The state takes the person who has committed the act or omission to court. The ac t or omission must then be proved according to criminal procedure.



Most criminal law is state law rather than federal law.



Most criminal law is statute law rather than common law.



The main statute that governs criminal law in NSW is the Crimes Act 1 900 (NSW). Which lists offences and prescribes maximum penalties.



The two elements of a crime that must be proved in a criminal offence are:

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Actus Reus – Reus  – The  The guilty act or omission.

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Mens Rea – Rea – The  The guilty mind, also k nown as the intention to commit the crime. This includes recklessness and negligence.



Strict liability offences are those where no mens rea need be proved, such as speeding offences.



Causation needs to be proved in many cases. Causation is about whether the act or omission caused the specific injury complained of. Novus Actus Interveniens means a new interveining act must be proved for causation to be disproved.



There are seven categories of a crime: 1.

Offences against the person  –  – These  These are crimes that harm other people, such as assault.

2.

Offences against the soverign  –  – These  These are crimes that disrupt or harm the governing bodies of a nation, such as treason.

3.

Economic offences – offences  – Offences  Offences committed against property or finances, including

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Crimes against property, such as theft.

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White collar crimes – crimes  – Crimes  Crimes in the business world, such as tax evasion.

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Computer crimes – crimes  – Such  Such as identity theft. 4.

Drug offences – offences  – These  These are crimes relating to the possession and trafficking of illegal drugs.

5.

Driving offences – offences  – Crimes  Crimes relating to driving, such as speeding offences.

6.

Public order offences  –  – These  These are acts occurring in a public place that are seen as distruptive to the population, such as offensive behavior.

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Preliminary crimes – crimes  – Including  Including conspiracy, such as agreeing to commit a crime, or an attempt, such as trying to commit a crime but failing to do so.



Summary offences – offences  –These These are relatively minor offences heard by a magistrate sitting without a jury.



Indictable offences – offences  – These  These are serious criminal offences that may be heard by a judge and jury, including murder, sexual assault and malicious wounding.



The parties to a crime  –  – These  These are the people who hav e participated in committing a criminal offence. The parties to a crime include:

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A principal in the first degree, This i s the actual perpetrator of the crime, that is the person or persons who committed the crime.

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A principal in the second degree  –  – A  A person or persons who were present or who assisted the principal in the first degree in committing the offence.

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An accessory before the fact  –  – A  A person or persons who helped plan the offence but were not present when the crime was committed.

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An accessory after the fact – fact  – The  The person or persons who helped the principals after the crime had been committed.



Some criminal laws are broken more often than other because people see the law as being unimportant, and think that they will not be caught, or see it as thrilling or exciting to break the law.



Factors affecting criminal behavior include:

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Social factors, Some people are more likely to commit a crime if they are surrounded by people who engage in criminal behavior.

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Economic factors, Poor people may be more likely to deal due to financial situations.

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Political factors, Criminal acts may be a protest against the law.

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Self-interest, Most crimes are committed to benefit the criminal.



Situational crime prevention, This refers to creating situations where where it is difficult for people to break the criminal law, such as installing a good security system in order to discourage potential thieves.



Social crime prevention, This occurs through changing the social factors that cause people to be criminals, such as providing education, employment and a viable social security system.

The Criminal Investigation Process 

The criminal process has three stages: 1.

The criminal investigation process  –  – Crimes  Crimes are detected, investigated and evidence is gathered so that an alleged offender may be brought before a court. This is done mainly by the police.

2.

The criminal trial process  –  – the  the guilt or innocence of a defendant is decided in a court according to the rules of procedure and evidence.

3.

Sentencing and punishment  –  – Courts  Courts decide appropriate punishments for convicted offenders and sentences are carried out by various sentencing authorities.



Discretion, This is the choice to do or not to do something. Discretion is part of all criminal processes from reporting crim e and the police deciding which crimes to investigate and which to ignore, to who gets arrested and what charges are decided upon. Discretion is also demonstrated by the judiciary and other legal personnel in the trial process, in sentencing and p unishment.



Reporting crime, this is usually done by private citizens because they are either witnesses to, or victims of, a criminal offence.



Police, are the main investigators of crime. Other crime investigators include social security officers, tax officials, health and safety inspectors, and local government officials.



When investigating crime, police gather evidence, use technology exercise powers of search and seizure, and use warrants.



Three ways in which a person can be brought before a court on a criminal charge, are information and summons, information and warrant, and arrest without warrant.

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On arrest, police officers must:

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Tell the person that he or she is under arrest.

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Tell the person why he or she is being arrested.

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Touch the person being arrested.



Police powers include:

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Search and seizure.

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Interrogation.

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Surveillance.

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Ordering medical examinations and collection of DNA.

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Detention or arrested suspects.

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The rights of suspects are as follows:

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The right to remain silent, suspects do not generally have to answer police questions.

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The right to privacy, citizens do not have to allow police to search their person or their premises without a warrant.

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The right to legal representation, this was established for serious cases in Australia in the high court case of Dietrich v t he Queen (1992) 177CLR 292.



Bail is an agreement to attend court to answer a criminal charge.

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The granting of bail is governed by the Bail Act 1978 (NSW).

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Those accused of minor offences must be granted bail except under very unusual circumstances.

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There is a ‘presumption in favour of bail’ when the police must prove that bail should not be granted. This is f or alleged offenders accused of more serious offences that do not involve violence or robbery.

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There is no ‘presumption in favour of bail’ for more serious and  violent offences.

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There is a ‘presumption against bail’ f or those accused of drug trafficking, murder or involvement with a terrorist activity.  This means the judge has to be satisfied that bail should be granted.



People who are not granted bail are k ept in custody, which is called being on remand.

Criminal Trial Process 

Jurisdiction, means the area over which a court has authority.



NSW Local Courts, have the jurisdiction to hear summary offences, committal hearings, Childerend Court and coronial inquiries.



The Drug Court of NSW, hears indictable offences such as manslaughter and armed robbery, and appeals from the local court.



The NSW Supreme Court, hears very serious indictable matters such as murder.



The NSW Court of Criminal Appeal, hears appeals from the local, district and supreme courts.



The Federal Court, hears Commonwealth criminal matters such as tax evasion.



The High Court, hears appeals from the Federal Court and the NSW Court of Criminal Appeal.



The adversarial system, is the system of trial used in Australia. The two sides (prosecution and defence) try to mak e the magistrate/judge or jury believe their story and disprove the other side’s.



Personnel involved in the trial process include:

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The jury, this consists of 12 ordinary citizens who decide the guilt or innocence of the accused, since 2 006 juries have been able to return an ‘eleven to one’ majority verdict in certain circumstances.

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The judge/magistrate, who decides questions about the law, ensures the hearing is legal and fair, decides punish ment if the accused is guilty, and decides guilt or innocence in a summary hearing.

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The prosecution lawyer, who represents the state.

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A police prosecutor, who represents the state in the local court.

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The Director of Public Prosecution (DPP), who represents the state for indictable offences.

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A defence lawyer, who represents the accused: Public Defenders are us ed in serious cases for those eligible for legal aid.



When the accused appeals in court, he or she will be asked to plead guilty or not guilty to the charge. If the accused pleads guilty, sentencing occurs. In over 80 percent of criminal cases, the accused person pleads guilty to the charge.



Charge negotiation, also known as plea bargaining, this occurs when the prosecution and the defence decide, befo re the trial, whether the accused will plead guilty to a lesser charge.



Legal representation, this is important because the rules of evidence and procedure can be difficult for a non-lawyer to deal with. There is a right to legal representation in serious cases.

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Legal aid, provides legal assistance and/or a solicitor to prepare a case or to represent the accused in court.

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The main source of legal aid in NSW is the Legal Aid Commission.

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A public Defender will be appointed in serious cases.

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To receive legal aid the a ccused must meet a means test, merit test and jurisdiction test.

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In a criminal court case, evidence is presented orally by witnesses, who a nswer the questions asked of them. Witnesses undergo examination-in-chief, and cross-examination and re-examination if necessary.



The right to silence, means that an accused person does not have to say anything in court at all.



A confession cannot be used in court unless it is made voluntarily.



Some important principles of procedure and evidence are:

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Presumption of innocence , the accused is innocent until proven guilty.

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Burden of Proof, the prosecution has the burden of proving the accused guilty, but the accused has to prove a defence.

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Standard of proof, the accused must be proved guilty beyond reasonable doubt.

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Double jeopardy, a person cannot be tried for a crime for which he or she has already been acquitted.



A defence is a legally acceptable reason for committing a criminal offence.



A complete defence is one that completely clears the d efendant, some examples are:

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Mental illness, the defendant was of unsound mind.

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Duress, the defendant was frightened into committing the crime.

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Necessity, the crime was necessary to avert serious danger.

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Self-defence, the defendant was acting to defend himself or herself, or someone else, from attack.

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Consent, the defendant acted with the victim’s consent.



A partial defence reduces the defendants liability from murder to manslaughter. This includes:

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Provocation, the defendant was aggravated by the victim so that he or she committed the crime.

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Substantial impairment of responsibility, the defendant was not in complete control of his or her mind when committing the crime.

Sentencing an Punishment 

The judiciary decides on the punishment for individual offenders, within statutory and judicial guidelines.



Statutory guidelines that affect sentencing include:

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The Crimes Act 1900 (NSW), which sets out maximum penalties.

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The Crimes (Sentencing Procedure) Act 1999 (NSW).



Judicial guidelines include guideline sentences that are judgments given about a sentence for a particular crime to be ta ken into account by courts delivering sentences for similar of fences.



Factors affecting a sentencing decision by a judge are:

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Statutory and judicial guidelines

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The seriousness of the offence

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Aggravating circumstances, including the age and disability of the victim, or prior criminal record.

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Mitigating circumstances, including the offender’s past record, good character an d signs of remorse.



The purposes of punishment for criminal offenders include the following.

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Deterrence – Deterrence  – to  to stop the offender committing a similar crime in the future and the general public from committing a similar crime. o

Specific deterrence, is to dissuade the offender from committing a similar crime in the future because of fear of punishment.

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General deterrence, is to dissuade the general public from committing a similar crime.

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Retribution, according to Australia law, the more serious the crime, the more serious the punishment.

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Rehabilitation, to change the behavior of the offender so that he or she will not want to commit other crimes.

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Incapacitation, to isolate the offender (in prison) so that he or she is unable to commit another crime.



During sentencing, victims may give a victim impact statement, which is a statement to the court outlining the full effect of the crime on the victim.

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Victims can gain compensation for the crime committed against them through the Victims Compensation Tribunal, established under the Victims Rights Act 1996 (NSW).



Under the Victims Rights Act 1996 (NSW), victims of crime have:

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The right to be informed of services and remedies available to them, and the final outcome of proceedings if requested.

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The right for the prosecution to make known to the court their need for protection in the granting of bail and the full effect of a crime like sexual assault.



Counselling is available to victims of crime. The Victims of Crime Bureau was established with the Victims Support and Rehabilitation Act 1996 (NSW) to help victims of crime.



Custodial sentence is one that requires the detention of the offender in a place especially set aside for that purpose. Examples are imprisonment and periodic detention.



A semi-custodial sentence requires some supervision of the offender. Examples are community service orders, bonds, suspended sentences, probation and home detention



A non-custodial sentence imposes a penalty on the offender without detention or supervision, for example, a fine, crim inal infringement notice, loss of driver’s license or forfeiture of assets.



No conviction recorded is when the accused person is guilty but no conviction is recorded.



The offender may be given a caution by police rather than being charged with a crime.



Divisionary programs include Drug Court programs.



Alternative methods of sentencing include circle sentencing.



After an offender has been sentenced, there are post -sentencing considerations.

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The prisoner is given a security classification, which determines the type of prison in which he orshe is placed.

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A prisoner may be placed in p rotective custody, where he or she is separated from other prisoners whom he or she fears.

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Parole permits prisoners to leave prison before they have c ompleted their full sentence. They can be sent back to prison to complete their sentence, if they breach parole c onditions.

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Preventative (or preventive) detention, is the continued detention of serious offenders after their term o f imprisonment has expired. It is also known as continued detention.

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Sexual offenders registration, is used for people who have been convicted of serious sexual offences. They must register with their local police station.

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Deportation is the forcible removal of a person from a country and the return of that person to his or her country of origin.

Young Offenders 

Young offenders are treated differently at every stage of the criminal justice process.



A person under ten years of age cannot be held criminally liable: this is the age of criminal responsibility.



The rights of children when questioned or arrested are better protected than those of adults. For example, a parent or guardian must be notified if a child is taken into custody by police and children must have an independent adult present during any police procedure.



Criminal proceedings take place in the Children ’s Court where:

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The public are not allowed into the hearing

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The media are allowed at the hearing but cannot publish the offenders name.

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If the child is under sixteen, a conviction is not recorded.



The penalty imposed on a child for an offence can be no greater than that imposed on an adult who commits an offence of the same kind.

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There are alternatives to court. Three sentencing options also available to the Childrens Court are:

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Referral to a youth justice conference.

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Adjournment for rehabilitation purposes.

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Referral to the Youth Drug and Alcohol Court.

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International Crime International crime is crime that has international implications in international law or in the enforcement of domestic crimi nal law. The three main categories of international crime are a s follows: -

Crimes against the international community, these are actions committed by individuals and states that are seen as wrong by the international community, such as terrorism and genocide.

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Transnational crimes, these are crimes that occur within a state’s legal system but co ntain an international element, such as the illegal drug trade. The Convention on Narcotic Drugs (1 961) and the Convention on Psychotropic Substances (1971) require states to have laws making possession, cultivation and trafficking of narcotics illegal, to cooperate with each other to stop global drug trafficking, and to prosecute offenders.

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Crimes committed outside the jurisdiction, these are crimes that take place outside a nations jurisdiction, such as piracy and aircraft hijacking. The Convention on the High Seas (1958) and the Convention on the law of the Seas (1982) deal with piracy.

International measures for dealing with international crime include: -

International instruments, such as treaties between nations and the UN Declarations, such as the Convention of the Law of the Seas (1982).

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International customary law, such as the probation of genocide.

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International criminal tribunals, such as the International Criminal Court (ICC).

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Sanctions, usually imposed for crimes against the international community.

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Extradition treaties, to prevent alleged offenders escaping prosecution for crimes committed in one country by escaping to another country.

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International cooperation between countries, especially police forces.

Domestic measures for dealing with with international crime include: -

Domestic criminal laws dealing with transnational crimes, such as anti-terrorism laws.

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Cooperation between domestic authorities in different nation states in order to deal with transnational crimes outside the  jurisdiction.

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Other international measures that require domestic legal action, such as the imposition of sanctions and implementation of extradition procedures.

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