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Causation
Categories of Crime
o Categories affect the way an offence is investigated, prosecuted or punished- includes:
o 1. Type of offence i.e. drug offences, economic offences
o 2. Jurisdiction whether it is a NSW or Commonwealth offence
o 3. Seriousness of offence summary or indictable offence
o 4. Parties to crime who is involved and whether principal offender had any assistance
Offences against the person
o Homicide the unlawful killing of a person. The judge must determine that there is a causal
relationship between the actions of the accused and the harm caused to the victim.
Murder the deliberate killing of a person; there was a deliberate act designed to cause
serious harm during which death occurred; or there was a reckless indifference to human
life which resulted in death.
Manslaughter killing of a person where the accused had not intended death- punishable
by up to 25 years imprisonment. Three main types:
1. Voluntary- killing where accused had intent- reckless about killing someone- are
mitigating circumstances (considered by the court when determining guilt or
innocence; do not justify offence but reduce charge i.e. provocation- the offence was
committed due to another party causing them to lose control that may result in an illegal act
such as murder due to rage, anger or resentment
2. Involuntary- occurred because accused was reckless or negligent- no intention to kill the
person
3. Constructive- killing of a person while accused was carrying out another dangerous or
unlawful act i.e. assaulting someone but death results
Infanticide the homicide of an infant who is under the age of 12 months, by their mother.
Crimes Act 1900 (NSW)- court take into account state of mind of mother before issuing
sentence- any issue such as depression- mitigating circumstance
o Assault Causing physical harm or threatening to cause physical harm to another person. The law
makes no distinction between the threat and actual application of force
ii.
Computer Offences
o Include crimes related to hacking and unauthorised access or modification of data
Preliminary Offences
Crime Prevention
Reporting crime
o Victims and witnesses use their discretion to discern whether or not to report crimes
Use of warrants
o Legal document issued by magistrate or judge authorising police to conduct arrest, search, seize
property or phone tap
o NSW police can use sniffer dogs without warrant to search for drugs at pubs or clubs- require
warrant to use dogs in other public places
o Helps ensure police power is used appropriately to protect the rights of the community and to
prevent misuse of power
o Police must present reasons for warrant- emergency warrants obtained over phone
o NSW police required to have valid warrant before they can enter and search premises
o Copy of warrant given to occupier- may also videotape the search to use in court and to prevent
improper procedures of planting evidence
o Remove items relevant to investigation- withheld until case is completed
o Weapons, drugs, etc. used as evidence in trial
o Custom warrant: can conduct search at any time where drugs may be involved; can use
reasonable force
Arrest and charge, summons, warrants
Arrest and charge
o Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)- must declare why under
arrest, why he or she is being arrested, given consent to do so; contains conditions under which
police can lawfully arrest person;
o Catch suspect committing offence
o Believe on reasonable grounds that suspect has committed or about to commit offence
o Where person committed serious offence has not been tried
o Possessing warrant for persons arrest
o Warrants provide safeguard for ordinary citizens against misuse of police powers- last resort
o Arrests deemed to be applied too early in investigative process
o Police must state why person under arrest- protect rights of individual to know
o Can use reasonable force to arrest- shooting permitted extreme cases
Charge
o Police must either charge suspect or release unconditionally
o If charged- bring before magistrate or authorised officer after detention period- brought before
court for bail hearing
o Police exercise discretion: lay criminal charges against arrested person
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o Whether matter is being heard for the first time or involves appeal (application to have higher
court review decision of a lower court)
o Nature of offence- divisions within courts have authority to hear particular cases
o Age of the accused- whether person under 18 or over 18
o Type of hearing e.g. bail hearing, committal hearing, etc.
o Whether crime is offence under state or federal law
Case then placed in court hierarchy (system of courts within jurisdiction from lower to
intermediate to higher courts
If offence relates to Commonwealth law, prosecuted by the Commonwealth Director of Public
Prosecutions
Judiciary Act 1903 (cth)- states and territory courts given power to hear federal criminal court
cases
Federal offences often heard in the Federal Court of Australia- summary jurisdiction over criminal
matters
Original jurisdiction: authority of the court to hear a case for the first time
Appellate jurisdiction: authority for court to review matters on appeal from another court
Prosecutors
o Crown represented by prosecutor- role to prosecute offender and obtain sanction or punishment
for offence. TWO TYPES:
o 1. Police prosecutors- used to prosecute summary offences- intensive investigation of mattergather evidence and info used at trial to form case against accused
o Required to give testimony at trial to aid prosecutions case
o Cases prosecuted by PP in Local and Childrens Court- handle most summary cases in NSW
o 2. Public Prosecutors- employed by DPP- prosecute indictable offences
o Director of Public Prosecutions- conduct committal proceedings for indictable offencesindependent authority prosecutes serious offences on behalf of NSW Govt.
Confession
o Can only be used if voluntary
o Right To Silence: Does not have to say anything at court only when submitting
corporation documents that may incriminate them
o Illegally Obtained: Inadmissible
Defences to Criminal Charges
There are two main types of defences:
o Complete/Absolute a justification that excuses the defendants action and results in an
acquittal.
o Partial an excuse for the defendants action that might result in a reduction in the charge
and/or punishment.
o Acquittal judgement made that determines the innocence of the accused
Complete Defences
o Mental Illness the law recognises that some people commit crimes as a result of mental illness
(insanity). It is the responsibility of the defence to prove that the accused was insane at the time
of the act. The defendant is acquitted if the court accepts the defence of insanity because they did
Jury role
o Apply the law as directed by judge for verdict of guilty or innocence
o Must remain alert and focused on court hearing- unbiased and impartial- make judgement based
on evidence
o Fair and open-minded when reaching decision to achieve justice
o Not be influenced by media or personal beliefs when reaching a decision- based on evidence and
testimony
Verdict
o Majority verdict: 111-1 accepted after 8 hour deliberation
o Accused acquitted if not guilty- if guilty, judge passes sentence
o Time of decision varies as some cases may require time and deliberation whilst simpler cases may
require less consideration
o Hung jury- not being able to reach a conclusive verdict as an entity- case is dismissed and retrial
will occur
o Costs time and money of persecution and accused- result in extended period of custody for
accused
o Jury Act 1977 (NSW) with Jury Amendment (Verdict) Act 2006 (NSW)
o Verdict where one or two people do not agree are allowed where time for deliberation has
elongated
Retribution
o Punishment considered to be morally right or deserved based on the nature of the crime
o Society seeks retribution on behalf of victims in impartial manner- punishment aims to protect
community and victim E.g. murderer should be put to death
o Main justification for punishment
o Ensure offender held accountable for his or her actions issues of fairness for offender and
harsh implications
o Recognising harm to community and victim may not always be successful: lead to offenders
given different sentence to others committed similar crimes
o CASE: R v AEM (Snr); R v KEM; R v MM
o Three teens sentenced to long terms of imprisonment due to sexual assault offence and effect
on victims
o Judge takes into account effect on victim and family
Rehabilitation
o Avoiding harsh sentencing through special programs to help offender from committing offences in
the future
o Recidivism- reoffending
o Encourages understanding, prevents criminals from falling into same patterns of crime
o Options and programs aim to give offender skills to function through society positively
o E.g. of fairness: Drug addict given rehab however drug theft will not be
Incapacitation
o Make the offender incapable of committing offences by restricting freedom; isolate offender
o Includes home detention, community work or licence cancellation
Types of penalties
Caution
o Formal warning without charge issued by police for less serious offences
o Police have power to issue caution as a way to avoid court system
o Young Offenders Act 1997 (NSW) police use discretion to issue formal caution to young
offenders between 10 and 18 for minor offences
o Conference where offender, police and family discuss offence and implications
o E.g. Cannibal Caution Scheme
Criminal infringement notice
o Notice issued by police outside court alleging criminal infringement and requiring payment of a
fine
o Allow police to issue on-the-spot fines for certain offences including larceny of >$300, offensive
behaviour, obstructing traffic, etc.
o Removes burden on criminal court system- allow police to issue fines for minor offences
o Increase in police powers offenders have option of electing to have matter heard in court
o May not be effective as deterrent police say quick, save police/court time
o Charged fine by court anyway if arrested and charged
Conviction or no conviction recorded
o Judicial officer has option to record conviction against offender or pass sentence with no
conviction recorded
o May decide to record conviction without imposing sentence
Protective Custody
o Provide centres for offenders vulnerable from attack by other prisoners
o Authorities have duty of care for safety of offenders to protect their rights as well
o Cannot subject offenders to risk of physical harm for punishment
o Placed into custody for certain offences that are deemed as offensive such as offences against
children protects prisoner from harm and access to work and education programs
Parole
o 3 years: Automatic parole; can apply for parole if minimum sentence served
o Conditional release of prisoner from custody after completion of minimum term of sentence
o Provides offender with incentive for rehab
o Increases likelihood of overall reform of offenders- encourages prison discipline
o If parolee meets conditions- let out early on good behaviour such as not reoffending, employment,
avoiding certain area of crime Parole Authority; closely supervised; subject to restrictions &
expectations
o Intended to assist offender in process of reintegration into community
o Aim to ensure offender will not reoffend
o E.g. obtaining from employment, mixing with certain people or going to certain places
Preventative and continued detention
o Preventative detention- when a person is placed in detention in case of future harm that they may
commit an offence one way of using
o Detained without any proof of having committed an offence suspected of terrorist activity 2 nd
way
o Purpose: incapacitation- protect community from threat of crime
o Post-sentence preventative detention- person has already been sentenced and has served the
5. Young Offenders
Age of criminal responsibility
o Law aims to prevent children from being exploited, protect them from harsh consequences of
uninformed decisions, etc.
o Doli incapax Latin word meaning incapable of doing wrong- children cannot be held
responsible for their actions and cannot be guilty of the offence; between 10-14
o Extent of mens rea in a criminal case is significant children deemed as incapable of having
criminal intent prosecution must prove that child knew it was wrong not just naughty
o Convention on the Rights of a Child 1989- aims and requirements for treatment of children and
young people- minimum age should be established to determine whether there was sufficient mens
rea to hold under aged offender accountable
o Issues:
o Some argue age of CR should be lowered others say current laws regarding the age of
CR should be continued
o Arguments:
o Doli Incapax is old fashioned doesnt hold for modern children, others say because it
is so old, should be cautious when reforming
o Modern children have compulsory education from 5 mentally & physically develop
quicker
Those who commit offences dont attend school regularly truancy, exclusion, etc.
Family & social environment influencing actions not school environment
o Modern children are sophisticated greater understanding due to technology
Technology causes quicker brain deterioration and ability to determine what is real
E.g. People getting injured may recover quickly thought due to cartoons/video
games
o Leniency at the expense of community protection
o Victim/family wish for retribution/punishment for perpetrator
Age
Children
Under 10 years old
Adults acquitted from serious criminal offences due to argued lack of mens rea
Inconsistent to treat children harshly
Acts/ Legislation
Children
(Criminal
Proceedings) Act 1987
Lays out minimum age of
criminal responsibility
Children
10-13 years
Children
(Criminal
Proceedings) Act 1987
Young People
14-17 years
Children
(Criminal
Proceedings) Act 1987
People under the age of 18 are
subject to the act- protections
and requirements stated
Criminal Responsibility
Cannot be found guilty of
committing an offence- not seen
mature enough to commit
extreme offence with mens rea
ISSUE: proving that an offender
under the age of 10 understood
the act to be wrong is
problematic
Punishing children at young age
seen as cruel treatment
Rebuttable presumption of doli
incapax. Presumed not capable of
committing
an
offenceprosecution may show the child
knew what they were doing was
wrong- can include psychiatric
evidence, evidence of parents and
teachers or behaviour statements
ISSUE: Doli incapax should be
removed due to increasing
awareness of wrong in children
Prosecutions
role
becomes
difficult- not enough evidence to
rebut presumption of DI
The rule seen as unfair especially
to victims of the crime
Criminally responsible for any
offence committed- case may be
heard in the Childrens Court
Deemed mature enough to
understand the seriousness of
offence
People aged >16 cannot have
criminal conviction recorded
unless indictable
shouldve at home, penalty should not be greater than adult who commits similar offence
Presided by a magistrate
Hear any offence other than serious indictable offence (higher court- murder, assault, etc.)
Committal proceedings of any indictable offence
Follows procedures of the Childrens (Criminal Proceedings) Act 1987
Equal rights as adults, right to be heard in court, responsible for their actions, should reside in his
or her home and education should not be interrupted
6.InternationalCrime
o Anycrimepunishablebyastatewithinternationaloriginorconsequences;crimerecognizedas
punishablebyinternationalcommunity
o Statesovereigntyauthorityofindependentstatetogovernitself;imposeandcollecttaxes;make
warandpeace;orformtreatieswithforeignstates
Categoriesofinternationalcrime
Crimesagainsttheinternationalcommunity
o Mostseriouscrimescommittedthatarecondemnedbytheint.community
o Genocide:actswhichhaveintentionofexterminatingallorpartofanational,ethnic,racialor
religiousgroup
o Warcrimes
o Hijackingofaircraftandslavetrading
o Statesmaybeunwillingorunabletoprosecuteindividualsforthesecrimesduetopositionsof
poweroroffendersfleeingtootherjurisdictions
Genocide
o Article6ofRomeStatutegivesICCjurisdictionovergenocide.Caninclude:
o Killingmembersofgroup
Causingseriousbodilyharm
Inflictingconditionsoflifecalculatedtobringphysicaldestruction
Imposingmeasurestopreventbirthswithingroup
Transferringchildrentoothergroup
o FirstcriminalisedbyConventiononthePreventionoftheCrimeofGenocidein1948
o Difficulttoprovedocuments,evidence,forensicevidence,reviewofkillings,militaryorders,
testimonies,expertopinions,etc.
o Courtmustprovebeyondreasonabledoubtanintentiontodestroygroupwasmade
o DealtwithbyspecifictribunalspriortoICCsuchasInternationalCriminalTribunalforthe
FormerYugoslavia
Crimesagainsthumanity
o Systematicattackagainstanycivilianpopulationwithknowledgeofattack;murder;enslavement;
torture;rapeArticle7oftheRomeStatute
o EasiertoprosecutebytheICCbecauseofbroaddefinitionandissuesofproof
Warcrimes
o Actionscarriedoutduringtimeofwarthatviolateinternationallaw
o GenevaConventionssetstandardsinint.lawforhumanetreatmentofvictimsofwari.e.
civilians,sickandwounded,prisonersofwar,etc.
o Article8ofRomeStatuteprovidesactivitiesthatconstitutewar:tortureorinhumanetreatment;
wilfulkillingorcausingsuffering/injury;militarilyunjustifieddestructionofproperty;directing
attacksatcivilianpopulations;directingattacksathumanitarianpersonnelorequipment
CASE:ProsecutionofSudanesePresidentOmarAlBashir
o 2008,ICCfiledchargesagainstSudanesepresidentoverongoingatrocities
o Receivedattentionthroughcampaigns,humanrightsgroups,politicalleadersandcelebrities
o Chargesincluded10ofwarcrimes,3genocide,5crimesagainsthumanityand2murder
destructionofthreetribalgroupsduetoethnicity
o ICCissuedwarrantforarrestin2009forwarcrimes:directingattacksatcivilianpopulation,
crimesagainsthumanity:murder,extermination,forcibletransfer,rapeandtorture
TransnationalCrimes
o Thisinvolvesthebreakingoflawsinmorethanonenationhowevercoveredbyextradition
o Difficultiesintransborderdetectionandenforcementofcriminallawscrimesunderpinnedby
internationalcooperationbetweencountriesaffected
o Includehumantrafficking,internationalfraud/whitecollarcrime,internationalterrorism,etc.
o Prosecutedunderlawofoneoranothercountrysdomesticjurisdiction
o E.g.TheWonderlandClubprosecutionsimultaneousraidsindifferentnationsaroundtheworld
occurredtoarrestmembersofaclubwhoexchangedchildpornographyovertheInternet.
EFFECTIVENESS
o Internationalcrimepresentsparticularproblems.Easeoftravelbetweennationstatesand
technologicaldevelopmentshasmadeitincreasinglydifficultforsuchcrimestobeinvestigated
o Enforcementisanissueduetostatesovereignty,whichlimitsthejurisdictionofadomestic
countryslawsandlegalsystem
o USAignoredICJrulingwhenfoundguiltyofunlawfullyinvadingairspaceofNicaragua
Transnationalcrime
o Somestatesmaylackskills,trainingandresourcestocombatcrimessuchaspaedophiliarings,
traffickingandsmuggling
o Mainareasofeffortagainsttransnationalcrimeinclude:
o Effectivenessofcoordinationbetweenagencies
o Levelofcomplianceamongweakerandpoorerstates
o Cooperationandsharingofskills,resources,fundingandintelligence