crime….

Practice Questions in RED

Themes and Challenges

Assess the extent to which law reflects moral and ethical standards
The role of discretion in the criminal justice system
Issues of compliance and noncompliance
The extent to which law reflects moral and ethical standards
The role of law reform in the criminal justice system
The extent to which the law balances the rights of victims, offenders and society
The effectiveness of legal and non-legal measures in achieving justice

10 MULTIPLE CHOICE/15 MARK EXTENDED

INFO: Legislation/Cases
NATURE OF CRIME

●​ The meaning Crime is any act or omission of duty that results in harm to society and is punishable by the n/a
of crime state.

●​ The elements Actus reus: the physical act of carrying out a crime
of crime: actus
reus, mens rea Mens rea: the accused's intention to commit the crime ('guilty mind')
3 categories of mens rea:
 - intention

- recklessness
THOMAS & MANJU SAM
- criminal negligence (case of Thomas and Maju Sam) -parents had the duty of care for their baby with eczema. they neglected professional advice
which led to the baby's death. thus charged with criminal negligence and manslaughter.

●​ Strict liability criminal acts that do not require proof or intent, knowledge, or negligence on the part of the
offence offender. Such as speeding.

●​ Causation Causation: a series of linked events that leads to the ultimate outcome

●​ Categories of Offences against the person: Injury is caused to another person (eg. physical harm or threat of Roger Dean case - nursing home (killed 11 people)
crime harm).
including: offences ●​ There are broad categories: Homicide, assault, and sex offenders.
against the person,
offences against the
Offences against the sovereign: are serious crimes. They include:
sovereign, economic
offences ●​ Treason: betraying your country by attempting to kill/overthrow the Prime Minister or

(property/white Sovereign.
collar/computer), ●​ Sedition: Promoting discontent and hatred against the government. Eg. anti-terrorism.
drug offences, driving
offences, public order
Economic offences: cover a wide range of crimes resulting in loss or damage to another's
offences, preliminary
property such as fraud, robbery and breaking and entering.
crimes (attempts and
●​ This category includes white collar and computer crimes. Eg. tax evasion.
conspiracy)

Driving offences: Are those that involve driving a vehicle or someone in the vehicle breaks the
law. Ex. speeding.

A public order offence: is something that disrupts the activities of society.

●​ These include offences such as: offensive language, spitting graffiti.
 Preliminary offences: Are committed in planning to or before committing a crime
●​ Ex. Miss Hempsell plans to kill Riley and tells the class about it.

●​ Summary and Levels of crime:

indictable Summary -less serious/minor matters
offence Indictable- serious criminal matters

●​ Parties to a -> the level of responsibility held by each party to a crime determines the level of punishment
crime
including
principal in the The four main parties:
first degree,
1. Principal in the First Degree
principal in the
second 2. Principal in the Second Degree
degree,
3. Accessory before the fact
accessory
before the 4. Accessory after the fact
fact, accessory
after the fact

●​ Factors Psychological factors

affecting
○​ forms of mental illness affecting a person's behaviour
criminal
behaviour Case: in 1843, Daniel M'Naghten killed English civil servant Edward Drummond while suffering

from paranoid delusions. His trial established a legal definition of criminal insanity known as the

M'Naghten rule.

Political factors

○​ offences against the state/sovereign are likely to have political factors influencing their
commission
 ○​ public order offences

Social factors

○​ the social groups that people associate with often influence a person's attitudes and
views of acceptable behaviour

Economic factors

○​ People from disadvantaged backgrounds are more likely to commit crimes.

○​ poorly paid jobs may increase their likelihood of committing an offences
○​ some view criminal acts as resulting in a financial benefit eg larceny/robbery

Genetic theories
○​ they investigated to see if there was any common genetic marker than can predict
criminal behaviour
○​ none of the investigations were conclusive, this suggests that the external factors play
the greatest role in criminal activity

Self-interest

○​ will usually play some role in the committing of a crime eg. drug offences committed for
profit or use
○​ white collar crimes are good examples of self interest since they are criminal activity
being driven by green and self-interest rather than by underlying socioeconomic or
political factors

●​ Crime Situational crime prevention aims to make it more difficult for criminals to carry out a crime
prevention: before it is committed. Planning and architectural design influence physical environments upon
situational and
social
 crime by increasing their risk of being caught, making the crime more difficult to perpetrate or
less rewarding.

●​ Security cameras & police patrol etc.

Social crime prevention attempts to address the underlying social factors that may lead to
criminal behaviour. It attempts to improve or implement techniques which will assist in
elevating the youths' social environment, so they do not have the intent to commit crime.
These factors include: poor home environment, parenting, social and economic disadvantages.
Can be done through:
●​ Providing financial assistance.

INFO: LEGISLATION
THE CRIMINAL
INVESTIGATION PROCESS

●​ Police powers​ Police are responsible for the prevention and detection of crime and for the maintenance of law enforcement (powers and responsibilities) Act 2002 NSW:
public order. ●​ Governs what police can and cannot do, it acts as a safeguard for society against
the abuse of power.
Role: to investigate crimes, make arrests if necessary, interrogate suspects and gather evidence ●​ Lawmakers and society deem such powers lawful and necessary to ensure that
against the accused.
criminal laws can be efficiently enforced for public order to be maintained.

NSW Police Force given special legal powers, majority of them contained in LEPRA

●​ Reporting crime
Community programs have been established to encourage the public participation to report
information about criminal activity.Police rely on members of the public to report crimes. This is
 because it’s sometimes impossible to solve and prevent crime without their help. The media
also play a significant role in reporting crimes.

●​ For example, crime stoppers is a national community based program that encourages
people to report information on unsolved crimes or unknown offences, or suspicious or
unusual activity. This program allows society to remain anonymous, and not directly
involved in the criminal investigation process.

Crimes that are more widely reported: property offences eg. car theft

Crimes that go frequently unreported: domestic violence or sexual assault (85% of sexual

assaults in Aus are not reported)

●​ Investigating crime: Gathering Evidence: Evidence Act 1995 (NSW)

gathering evidence, • A significant responsibility of police is to gather evidence for use by the prosecution to prove
●​ all evidence must be obtained in a proper and lawful manner.
use of technology, the criminal charge in court.
●​ This act sets out rules that apply to different types of evidence and how it can be used.
search and seizure,
use of warrants. • Sufficient evidence needs to be gathered to support a charge and gain a conviction. The more ●​ The most fundamental rule of evidence is that evidence is only admissible if it's relevant

evidence, the more compelling the prosecution case may be. to the proceeding.
●​ IN SITU
●​ IN SITU → without having been moved or changed; so it can’t be compromised

➔​ There was criticism of the investigation process put in place in NSW: it was that the

police investigate the scene first but this provides room for error due to crime scene

contamination.
WARRANTS: William Tyrrell Case (Gary Jubelin)
• Former NSW Police detective Gary Jubelin has been found guilty of making illegal recordings

Use of Technology: during the investigation into missing toddler William Tyrrell.
Created new crimes, however also simultaneously greatly assisted law enforcers in the • In this case, Jubelin made recordings during the investigation without a warrant. → was
investigation of crime; both current and cold cases.
inadmissible in court

DNA/FORENSIC
DNA Evidence; Genetic material (such as hair, blood or saliva) that can be used to link a
2018 LEPRA Amendments – Stop, search and detain without a warrant
suspect with a crime scene or criminal offence, or to clear a suspect

For and Against:

- effective in resolving cold cases

- ineffective since jurors don't know enough about DNA science, so they're easily swayed

- mistaken identity (an innocent man was charges)

- saying it wastes public resources and time by trying to get DNA from ex-offenders even if

they have been rehabilitated

CCTV FOOTAGE:
• For example, CCTV in major public spaces and DNA technology

• police surveillance teams are able to record video and audio footage using digital methods

(need a warrant)

Search and Seizure:

Warrants:

A warrant is an order issued by the court (usually a magistrate) authorising a law

enforcement agency to do something. For example, a warrant can be issued to to police

authorising them to:

• arrest a person, where the court has been convinced that there is evidence that an offence

may have been committed;

• conduct a search of premises looking for evidence (police must show that there are

substantial grounds for believing that they will find evidence);

• use a phone tap or seize property.

If a warrant is issued this does not mean the accused is guilty, but that there is a prima facie

case against them. For example, on first examination of the evidence it appears the person has

committed an offence. A subsequent trial will test the evidence more thoroughly.

• Unless a crime scene is established, the power to search premises may be enforced only if

the police have a search warrant, which the occupier of the premises is entitled to see.

• Anything that has been improperly or illegally obtained by police cannot be used as

evidence unless the court uses its discretion to allow it in the public interest (Evidence Act

1995 s.138).

• Police have the power to search and detain in certain circumstances, even without the use

of a warrant. For example, domestic violence or where crime has or is likely to have

occurred on the premises (LEPRA).

• The police can stop, search and detain anyone reasonably suspected of having anything in

their possession that is stolen, unlawfully obtained or intended for use in committing a serious

offence (LEPRA s.21).

 • 2018 LEPRA Amendments – Stop, search and detain without a warrant: – Empower police

to stop, search and detain a person who is in a public place or school, without a warrant, if the

police officer suspects on reasonable grounds the person has a dangerous implement (including

a knife blade, razor blade or any blade) in their possession, and seize anything found.

●​ Arrest and charge, ARREST ARREST: Police may use reasonable force only Kristian White case
summons, warrants
Rule of law applies; the challenge is balancing the powers given to police to protect the Kristian white fatally tasered an elderly woman (She weighed 43 kilograms, stood less than

community against individual rights. 160cm tall, and was 95 years old.) → The threat she posed was questionable, too; she was alone

in a small room at her aged care home, moving slowly with a walking frame, and armed with a

Police should not arrest if viable alternatives exist, such as: steak knife.

• A caution or warning

• An infringement or penalty notice Roberto Curti case

• Court attendance notice (previously a summons).

Police can only legally detain people if they lawfully arrest them. For example:

• They believe that a person has committed, or is about to commit, a crime;

• They witness a person committing a crime; or

• They have an arrest warrant for the person.

Police may use reasonable force only

• The offender must be informed of the grounds for the arrest unless obvious.
 • Under the LEPRA, a person who has been arrested can be held for up to 6 hours for the

‘investigation period’, max 12 hours if granted by a magistrate.

CHARGE

The charging process:

This is a formal process where the suspect is charged with the particular offence(s) and receives

notification of their first court date.

• They are fingerprinted at this time.

• Police exercise their discretion, within guidelines, in determining which specific offence(s) the

suspect will be charged with.

Rights of suspects:

1. They are under no obligation to give a formal record of interview to police or to answer any

of their questions, apart from providing a correct name and address.

2. They have the right to silence and are entitled to exercise this right throughout the criminal

process (but note the impact of the recent amendments).

●​ Bail or remand Bail: the temporary release of an accused person awaiting trial (sometimes on particular Bail Act 2013 (NSW) → Bail Act Amendment 2014 (NSW)

conditions such as lodgment of a sum of money as a guarantee).

- It is a key mechanism in the criminal justice system and reflects the presumption of

innocence.
- is granted by an authorised police officer (in charge of the station) and if refused, the

defendant can apply to Local Courts to review. Authorising bail involves an exercise of

discretion. Cases: Jill Meagher (2012); Lindt Cafe Siege (2014)

Jill Meagher case (offender: Adrian Bayley): At the time of Jill's murder, Adrien Bayley was on
bail despite have multiple convictions of rape previously.
In Judge Gray's own words, Bayley was a man with a "long and disturbing history of violent and
sexual offences".
Unacceptable Risk Test (2013 Bail Act)

- 'presumption against bail' replaced by the 'unacceptable risk test': assesses an alleged Lindt Cafe Siege (offender Man Monis) was on bail when he committed a terrorist attack on the
offender's risk of engaging in certain behaviour eg. not attending court/tampering with Lindt Cafe in Sydney

witnesses and committing crimes.

- can risk factors be mitigated (lessened to the satisfaction of the court) by bail conditions? yes

= bail; no = remand

- onus returns to the state to prove why bail is unacceptable - court decides.

Bail Act 2014 (NSW)

The 2013 bail act was law for 3 months before being reformed.

- The NSW Government announced a review of the Bail Act, to ensure the safety of the

community. Amendments introduced a “show cause” test for people accused of serious

offences. This was controversial as it reversed the onus of proof. Under the amended act, the

accused is required to show cause that their detention in custody before trial is not justified in

order to be granted bail. An unacceptable risk test is also applied.

it is up to the accused to explain why bail should be given

 it was amended because of controversy created by media and community concern

Remand: where bail is refused, and a person is imprisoned pending trial.

- the magistrate or authorised officer determines that the accused should remain in custody

until trial, the accused will be held on remand in police custody or at a remand centre.

Remand is usually sought for people who have committed particularly violent crimes,

dangerous criminals, repeat offenders or those thought to be a flight risk.

●​ Detention and
interrogation, rights
of suspects Detention

• Under the LEPRA, a person who has been arrested can be held for up to 6 hours for the

‘investigation period’, or a maximum of 12 hours if granted by a magistrate.

EXCEPTION: Terrorism (Police Powers) Act 2002 (NSW)

- allows police to make an application to the Supreme Court to detain a person in custody for a

max of 14 days

Activities that are not included in the detention period are:

- transport from point of arrest to the police station

- recovering from the effects of drugs or alcohol

s - eating, showering or toileting

otice (CAN): a legal document that states when and where a person must

he charge to which they must answer. (CAN is for the offender)

witness to appear in court on a specific date to give evidence. (subpoena

ct or process of questioning a suspect, carried out by investigating

n be used as evidence in court

issue by police to a suspect when they are detained and reminding them

e. - by a person having the right to silence, it can make it difficult for

pect to fill in the gaps if they don't talk.

a right to silence. The right to silence is a discrete right provided by

CPR for a person not to be compelled to testify against himself or confess

er
 (1992)

presentation despite widely held belief.

with drug offences, denied legal aid after he refused to plead guilty as

ngly indicated his case had no merit.

d himself, was convicted, and appealed to the High Court arguing that he

, as he had no legal representation.

ed that it was probable that Dietrich did not get a fair trial but noted that

tic right to legal representation.

ghts because many of their rights have been taken away on arrest.

s re-dress the power imbalance with the state.

right to:

aw reform has changed this).

esponsible adult present.

y have been arrested.

the 6-hour investigation period and the possible extension of it.

n contact a friend, relative, guardian, independent person or legal

 ●​ INVESTIGATION PROCESS
○​ Reporting crime → Crime Stoppers
○​ Police powers → LEPRA
○​ Investigating crime →
○​ Arrest or charge → Kristian White case → Roberto Curti case
○​ Detention and interrogation/ rights of suspects → 6 hours, Maximum 12
hours if permitted by magistrate → 14 days if a Terrorist offence under the
Terrorism (Police Powers) Act 2002 (NSW)
■​ No right to a lawyer (Dietrich v The Queen)
○​ Bail or remand → Bail Amendment Act (2013) Unacceptable risk test, onus on
the court. → Man Monnis and Jill Meagher → Bail Amendment Act (2014)
Show Cause Test, reversed the onus of proof onto the accused.

The role of discretion in the criminal justice system

●​ Bail
→ Bail officer has to use their discretion on whether to keep someone on Bail or Remand
●​ Police Powers
→ Use their discretion to balance police rights and rights of citizens
→ Arrest use discretion eg. taser cases
Issues of compliance and noncompliance
The extent to which law reflects moral and ethical standards
●​ High extent - as legislation is put in place
●​ Police Powers
●​ Arrest and Warrants
→ police have a moral and ethical standard in arresting people in a way that protects the
humanity of the citizen, and they have warrants to arrest people in a lawful way
→ Police have specific rules to their powers so that they don’t go against moral and ethical
standards (strip search etc.)
●​ Bail
 ○​ Protects societies
○​ Following the lindt cafe case the bail act was reformed to reflect moral and
ethical standards however,
○​ Still not reflecting how it should as many offences occur during people being
on bail
●​ Detention and interrogation/rights of suspect
→ moral standards of how people should be treated in regards to the criminal
investigation process
→There are rules for the detention and interrogation of people and the rights of suspects
upholds moral standards in the way to treat citizens)
The role of law reform in the criminal justice system
●​ Bail
→ Bail Act 2013 to Bail Amendment Act 2014

The extent to which the law balances the rights of victims, offenders and society (has
justice been served)
●​ Police Powers
The effectiveness of legal and non-legal measures in achieving justice
●​ Reporting Crime - Crime Stoppers
●​ Media, Educational Campaigns

Examine the criminal investigation process. 15 marks

Outline the powers of police
Police are a significant role of the criminal justice system as they are a part of the executive
arm of government and have the duty to detect and prevent crime as a means of
maintaining public order. To do this, they are equipped with special powers which enable
them to conduct criminal investigations. Majority of these powers are outlined in the Law
Enforcement (Powers and Responsibilities) Act 2002 (NSW), which acts as a safeguard for
checks of balance against Police abusing their powers within the community. In part 4 of
LEPRA, police specifically have the power to ‘search people and seize and detain things’,
however it must be on ‘reasonable grounds’. Police use their power to make a decision
about whether to pursue an investigation, and if pursued, it is the police's role to gather
enough evidence as possible to support a charge in court. The Evidence Act 1995 (NSW)
sets out rules that apply to different types of evidence and how it can be used. The most
fundamental rule of evidence is that it is only admissible if it is relevant to the proceeding.
It is preferred by courts that the evidence is gathered in situ, as it is more reliable in
correctly charging an offender.

Furthermore, the guidelines of making an arrest are outlined in LEPRA, and police are given
the guidelines to exercise their discretion when deciding when to carry out an arrest. A
case where the LEPRA guidelines were not obeyed by is the NSW v Robinson case. In this
case, according to Hamilton Jane Lawyers, Mr Robbinson argued that his “arrest was
unlawful” as a police officer arrested him with no intention of charging him. This breaches
the fundamental rule surrounding arrests without a warrant needing to be on ‘reasonable
ground’. Additionally, the fundamental requirement for discretion is examined in the
Christian White case. A policeman tasered a 95 year old woman, and through causation,
she fell and died. He did not have the mens rea in killing her, but there was recklessness, as
he did not use his discretion to make an informed judgement of the risk that she imposed.
In summation, the powers of police are crucial in upholding their duty of crime prevention
and detection in regards to the investigation process, while also using their discretion to
uphold the rights of the community with the needs of the state.

Reporting Crime
Reporting crime is crucial to the criminal investigation process as police rely on the public
to report crimes so that they can fulfil their roles of prevention, detection and intervention.
However, many crimes go frequently unreported by victims and the community due to
varying factors: they could feel embarrassed, don’t want to get involved, are in a
relationship with the criminal, or don’t see it as necessary. For example, 85% of sexual
assaults and domestic violence in Australia are not reported. Community programs have
been established to encourage the public participation to report information about
criminal activity. For example, Crime Stoppers. Is a national community based program that
encourages people to report information on unsolved crimes or unknown offences, or
suspicious or unusual activity. This program allows society to remain anonymous, and not
directly involved in the criminal investigation process, creating a more accessible and
appealing way to report crime.

Identify the elements of investigating crime

A significant responsibility of police is to gather evidence for use by the prosecution to
prove the criminal charge in court. It is critical for the evidence to be sufficient, such as it
being in situ (without being changed or moved) for it to support a charge and gain a
conviction. The more evidence provided the more compelling a prosecution may be.
However this has faced criticism as there can be faults in presenting evidence.

Technology created opportunity for new crimes, however also simultaneously greatly
assisted law enforcers in the criminal investigation process in both current and cold cases.
The Evidence Act 1995 outlines rules that apply to different types of evidence, and how
they can be used, which includes the use of forensic evidence. DNA is collected from crime
scenes in a means of finding a suspect or eliminating a suspect from suspicion. DNA has to
be extremely reliable, as if there is any doubt about it not being reliable, it could be
deemed inadmissible, or possibly lead to wrongful convictions. DNA evidence, such as
blood and hair, is an important advance in technology and is considered to be highly
dependable, along with giving police officers the ability to solve cold cases. For example, In
the Doris Fenbow case, a man was found guilty 27 years later for murder and sexual assault
as police discovered DNA on Ms Fenbow. It is often a decisive factor in many cases.
However, DNA can be flawed as it only establishes that an offender could have been
responsible for a crime. Jurors, due to their possible lack of knowledge about the law, can
find this form of evidence very compelling and persuasive. This can lead to wrongful
convictions. For example, in the media article “blinded by science” from Sydney Morning
Herald, states that “the less jurors know about DNA, the more swayed by it they are to find
an accused person guilty, research has shown”.

Bail v Remand
Legal and non-legal measures regarding bail have been moderately effective in achieving
justice for the accused, society and upholding the rule of law. Bail is a conditional release
of a person, until their case is determined by court. The Bail Act 1977 (NSW) ruled that the
onus is on the offender, and that there was a presumption against bail. This meant that it
was up to the defendant to prove why bail should not be refused. However, this Act due
to its complexities meant that it was highly inconsistent, and frequently led to injustices.
As the conditions which a person was allowed bail were rigorous it often led to extended
periods of custody and high prison populations which were not necessary, and the accused
may be in fact innocent. As a result of this legislation being ineffective it was reformed into
the Bail Act 2013 (NSW). This act changed the onus of proof upon the court, along with a
new simplified risk assessment which determined whether the accused is an “acceptable
risk” to society if released, such as the likelihood of recidivism.

It also introduced that decision makers must look at individuals' circumstances, such as if
they are vulnerable and underage. Additionally it implemented new conditions which
could be placed on the accused, such as ankle monitoring, so that they did not have to be
kept on remand, however still mitigating risk.

This reform was effective in reducing complexity and balancing the needs of the
community and state with the rights of the accused. However, this grew tension in the
community as the old legislation was more strict and would have kept individuals on
remand, such as
Man Monis and Adrien Bayley, individuals who committed inevitable offences such as
murder whilst being granted bail.
 This further caused the legislation to be amended in 2014, where the government
introduced a “show cause” test for people accused of serious offences. This was
controversial as it reversed the onus of proof. Under the amended act, the accused is
required to show cause that their detention in custody before trial is not justified in order
to be granted bail. An unacceptable risk test was also applied.

2024- so much domestic violences. This year alone there has been so many domestic
violences of peop;le left on bail. Police have no power in letting them on bail, perhaps
there needs to be more work between police and justice system when it comes to
domestic violence.

INFO: LEGISLATION/CASES
CRIMINAL TRIAL
PROCESS

●​ Court Court Hierarchy

jurisdiction
There are three levels of court structure in NSW:

• Lower - Local Court

• Intermediate - District Court

• Higher - Supreme Court

Local Courts in NSW

Different types with specialist jurisdiction

Local Court:
• Deals with summary matters, for example, drink driving.

• Involves a magistrate (not a judge) and no jury.

• Oversees committal process for indictable offences (formerly committal hearing).:

– Before the case can go to trial before a judge and jury, a mandatory case conference must

take place.

– Prosecution shows brief evidence and magistrate informs of discounts. Accused enters a plea.

– Process helps to keep cases that will not succeed out of the intermediate and higher courts,

thus reducing costs and saving court time.

Coroner’s Court

conducts inquests into unusual deaths and suspicious fires; not bound by same rules; does not

conduct trials.

Children’s Court

covers criminal and welfare jurisdiction; hears all crimes committed by people under 18 years

except some traffic offences (Local Court) and homicide, aggravated sexual assault.

Land and Environment Court

was established in 1980; hears environmental, development, building and planning disputes.

NSW District and Supreme Courts

District Courts

• Jurisdiction is applicable to all indictable offences (for example, drug trafficking), apart from

murder, attempted murder, treason, serious sexual assault and kidnapping.

• There is a judge and jury.

• Proceedings take longer than Local Court and will cost the accused more.

• Hears appeals from the Local Court, for example, magistrate has made errors in their

interpretation of the law.

Supreme Courts

• Jurisdiction is applicable to the most serious indictable offences and appeals from lower

courts.

• A single judge and a jury of twelve.

Court of Criminal Appeal

• Three judges are present and no jury.

• Hears appeals from District and Supreme Court.

- The prosecution usually can’t appeal an acquittal but can appeal a leniency of sentence, e.g. R

v Loveridge.

- Defence can appeal to the harshness of a sentence, for example, R v Skaf.

• Focus on issues of law and procedural fairness.

NSW Drug Court

• Takes referrals from the Local and District Courts of offenders who are dependent on drugs

and who are eligible for a drug court program.

 • Attempts to address underlying drug dependency which has resulted in criminal offending.

●​ The adversary
system
Legal processes and institutions

• The adversary system is a key aspect of Australia’s legal system:

– two opposing sides

– argue their case before a court

– presided over by a neutral third party

• Strict rules of evidence are imposed – can only use evidence obtained within the rules

otherwise it is inadmissible (cannot be presented in the case). A key function of the judge is to

decide on matters relating to whether evidence can be presented to the jury (for instance, is

admissible).

• Each side tests the evidence put forward by the opposing side by asking questions of

witnesses (cross-examination) and by introducing other witnesses and evidence to counter the

opposing case. The judge and jury have no role in testing the evidence, for example, they can’t

examine witnesses.

• At the conclusion of the case, the presider (judge or magistrate) or a jury will decide which

version of events they believe and decide about whether the accused is guilty or not (verdict).

• An error in process will be corrected on appeal, for example, R v Gilham.

●​ Legal
personnel:
magistrate, Legal Personnel
judge,police
prosecutor, Magistrates
director of
Preside over Local Court, hear summary cases, determine guilt of accused and sentence if
public
prosecution, required.
public
defenders
Judge

Conduct trial according to rules and legal principles, instruct jury on their role, determine

sentence if needed.

Prosecutors

• Represent the state (society) before the court.

• Attempt to prove guilt of accused and argue for harsh sentence if conviction gained

• At Local Court level, police prosecutors (specially trained police) present the case, making the

process resource efficient.

• Work for the Office of Public Prosecutions (DPP).

Defence lawyers

• Represent the accused.

• Could work for The Public Defenders (salaried lawyers working for government but acting

independently) or Legal Aid, with the aim of ensuring fairness.

 • Counter evidence presented by prosecution to cast doubt in minds of jury/magistrate about

the reliability of the prosecution’s case.

●​ Pleas, charge Charge- A form of accusation against a person. This does not imply guilt, as that's the courts
negotiation responsibility to determine.

Plea- An accused person’s answer to a charge or indictment.

●​ Either the police or other law enforcement agencies (e.g. Border Protection Service) are
responsible for charges towards those people accused of committing crimes. (what
evidence there is and then charge the accused)

●​ An accused is required to make a plea in relation to the charges they are facing. The plea
is either guilty, not guilty or unfit to stand trial/no plea (which is taken to mean ‘not
guilty’).

charge negotiation
An agreement between the Director of Public Prosecutions and the accused that involves the
acceptance of a guilty plea, usually in exchange for something else Is the negotiation of
charges between the defence and the prosecution.

Charge negotiation is used to get the accused to plead guilty

It is done in 1 of 3 ways:
●​ If the accused is facing several charges in relation to the same crime, the prosecution
may drop some charges if the defendant agrees to plead guilty to the remaining
charges.
 ●​ Judges may sometimes give an indication of what a likely verdict will be and this then
prompts defendants to plead guilty.
●​ The charge may be reduced to a lesser charge if the accused pleads guilt. For example,
a charge may be reduced from murder to manslaughter; armed robbery to robbery.

●​ Legal Legal representation

representation
• The right to a fair trial is a key human right of all people, but there is no automatic right
, including
legal aid to legal representation.

• However, it is widely recognised that without legal representation, an accused is unlikely to Dietrich v. The Queen

receive a fair trial in criminal law. (Dietrich v. The Queen)

• A barrister who agrees to take on a case is bound by several important professional duties,

based on ethical principles. For example:

– They must not allow their personal interests or views to interfere with their representation of

their client’s case.

– They must carry out the wishes of the client, even if they are against the advice of the

defence team.

– They must keep anything said by the client secret (lawyer–client privilege).

Legal Aid

The Legal Aid Commission (LAC)

• The Legal Aid Commission was established in 1979 to ensure that all groups of society

are provided equitable access before the law, e.g. marginalised disadvantaged groups.

• The LAC is funded by the NSW Government.

• LAC offers anyone free legal advice for fifteen minutes on any legal issue, including civil and

Commonwealth law. Advice beyond this requires a formal application, which is only granted in

certain circumstances. There are tests on funding:

– Jurisdictional (does it fit into Legal Aid area of law and type of case)

– Means test (do the applicant’s assets and income fall below the Legal Aid level)

– Merit test (is there a chance of the case being successful)

• There is a cap on the aid that is granted, with the accused paying some costs appropriate to

their circumstances.

The funding of defence counsel by Legal Aid is a mechanism for equality (between the State

and the accused) and matching the power/resources of the state.

●​ Burden and
standard of
proof Burden and standard of proof

Burden of proof

The assumption of innocence is a cornerstone of the Australian legal system. This is reflected in

the fact that the burden of proof/onus rests with the prosecution, meaning an accused is

innocent until proven guilty by the prosecution.

Standard of proof

• Juries (or magistrates in summary offences) must be convinced beyond reasonable doubt (a

high standard of proof) that the accused has committed the offence. For instance, if they have
R V JAMA,
any doubt from the evidence presented, they should find the accused not guilty. Wrongfully convicted

• This involves proving all aspects of the crime – mens rea, actus reus and causation.

• To achieve this standard of proof there is pressure on the police to gather compelling

evidence.

• The accused has no responsibility (or burden) to show that they are not guilty of the crime

but if the accused wishes to bring a defence, then the burden of proving that defence belongs

to the accused – on the balance of probabilities is the standard of proof.

●​ Use of Use of evidence, including witnesses Crimes (Forensic Procedures) Act 2000 & LEPRA
evidence,
 including The collection, presentation and interpretation of evidence are crucial aspects of the ●​ Outline the way in which police must obtain and collect DNA evidence to ensure
witnesses admissibility
criminal justice process for both the defence and prosecution.
●​ Police must get consent from the individual before collecting DNA sample, or apply to
Key points:
the local court for warrant
• A key function of the judge is to decide on matters relating to whether evidence can be ●​ R v Jama → conviction only based of DNA evidence

presented to the jury (i.e. is the evidence admissible). To be admissible, evidence collected

must be relevant and obtained legally by the Crown.

• Governed by the Evidence Act 1995 (NSW), which outlines the way that evidence must be

obtained in order to be used in court. It also contains information and directions on the

‘swearing in’ of witnesses.

• There are different forms of evidence, including witness testimony, physical, forensic, etc.

Evidence also includes:

– Real evidence (tape recordings, charts, photographs, etc.) and documentary evidence

(documents from the crime scene).

– Anyone who witnessed a crime or was interviewed by police may be subpoenaed to

appear later in court. The witness will be examined by both sides of the adversary system.

– An expert witness may be called who is qualified in a specific area (DNA testing, mental

health doctor).

●​ Defences to
criminal
charges:
Defences to criminal charges

Complete defences

Partial defences to
murder Purpose of defences

A person who admits to a criminal offence may adopt a defence that justifies or excuses their

actions. It can help achieve justice because it considers the accused’s actions surrounding the

crime.

There are a range of defences open to a defendant, mostly revolving around the mens rea of

the offence.

The two main types of defences include:

• Complete defence: is a justification that excuses the defendant’s action, and results in an

acquittal.

There are four complete defences: Mental illness, Self-defence, Compulsion, Consent

If successfully proven, the accused will be acquitted of all charges in the trial.

• Partial defence: is an excuse for the defendant’s action that might result in a reduction in the

charge and/or punishment

- Examples include provocation and substantial impairment of responsibility (only available in

relation to murder charges). The jury determines whether the evidence supports a defence to a

charge being made out.

●​ Role of juries The role of a jury in an adversarial system of law: to determine guilt or innocence of the Jury Act 1977 → Amended to Jury Amendment (Verdicts) Act 2006 (NSW)

accused based on the evidence presented to them at trial. This decision is called a verdict
 Crimes (Sentencing Procedures) Act 1999 → make it possible for judge-only trials in the

Key points ‘interest of justice’, for example when it is a highly publicised trial.

• The jurors are sworn in.

• They hear the evidence and deliver a verdict.

• They are allowed to make notes

• Must remain fair and open minded.

• Must not discuss the case outside of the court.

Case study • Skaf case – an example of jury misconduct

Types of challenges the prosecution and defence can use:

Peremptory challenge: when the legal team rejects a juror without needing to provide a

specific reason

Challenge for cause: when the legal team rejects a juror because they believe that for some

reason the juror will be prejudiced

Hung Jury: a jury that is unable to reach a verdict

- the case will have to begin again

- puts burden on time and cost for accused and prosecution

- could result in an extended period of custody for offender

- the witnesses and victim experience trauma

Juries in NSW were required to reach a unanimous verdict but in Jury Amendment (Verdicts)

Act 2006 (NSW) amended the original legislation - The Jury Act 1977 (NSW)
he number of ‘hung juries’.

mendment was to allow majority verdicts in cases where reasonable

passed and the court is satisfied that a unanimous verdict will not be

Jury Amendment (Verdicts) Act 2006 (NSW):

1 jurors where the jury consists of 12 persons, or

0 jurors where the jury consists of 11 persons.

t the amendment

Against

power of rogue or - sometimes there may not be enough

urors, avoids time time to gain sufficient evidence; removes
nd stress on the victim the possibility of a 'reasonable doubt'
decision.

mes (Sentencing Procedures) Act, 1999 make it possible for judge-only

stice’, for example when it is a highly publicised trial.

●​ CRIMINAL TRIAL PROCESS

○​ Court Jurisdiction → court hierarchy with varying jurisdictions → court of

criminal appeal
○​ Adversary system → two opposing parties, both argue their case using

evidence before a court

○​ Burden or standard of proof →

■​ Civil case (chance of probabilities) → burden is on the plaintiff

■​ criminal case (beyond reasonable doubt) → the burden is on the

crown

○​ Legal personnel → Magistrates, judges, police prosecutor, public

prosecution( behalf of the state), public defender ( lawyer employed by the

state to defend a defendant)

○​ Legal Representation → There is a right to a fair trial, but no right to legal

representation → R v Dietrich → also talk briefly about Legal Aid; is funded

by the NSW Government; offers anyone free legal advice for fifteen minutes
on any legal issue, including civil and Commonwealth law.
○​ Use of evidence → must be in situ and admissible

■​ → Evidence Act 1995 (ways it can be obtained)

■​ Crimes (Forensic procedures) Act 2000 (DNA Evidence) (R v Jama,

convicted only on DNA evidence - “wrongfully convicted”- Sydney

morning Herald

○​ Please, charge negotiation →

○​ Defences to Criminal Charges → Complete: Mental Illness, Self-Defence,

Compulsion, Consent → Partial: provocation and substantial impairment

○​ Role of juries, including verdicts →

 ■​ Jury Act 1977 → Jury Amendment Act 2004 (cannot do external

research of the case about accused or trial) (Skaf) → problems with

retrials with hung jury where verdict couldn’t be reached to Jury

Amendment Verdicts Act 2006 (NSW) (majority verdict)

■​ Skaff case → not fair trial/rule of law

Evaluate the effectiveness of the jury system in the criminal trial process.
The role of a Jury is to determine the guilt or innocence of the accused based on the
evidence presented to them at trial, known as a verdict. They must remain fair and
open-minded and should not be influenced by the media or personal beliefs when
deliberating a verdict. Since a jury is a panel of citizens selected at random, they are of all
levels of education in regards to the legal system. A lack of education and misconduct in
jury responsibilities can have a severe impact on a case. For example, in the Skaf case, a
juror went to the place of the offence to gather his own information to be sure his decision
wouldn’t have any doubt. This infringement of jury responsibility meant that the Skaff
brothers didn’t get a fair trial which goes against the rule of law. As a result, the court of
Criminal Appeal ordered a retrial. This is impactful on everyone who is part of the criminal
trial process in this case as it increases cost and time for another trial and causes stress on
the victim of the offence. This case led to the amendment of the Jury Act 1977 (NSW) to the
Jury Amendment Act 2004 (NSW) which prohibits jurors from researching areas of the case
for the purpose of obtaining information about the accused or issues in the trial.
Additionally, there were problems with retrials in regards to hung jury, where they cannot
reach a verdict. This led to a further amendment: Jury Amendment Verdicts Act 2006
(NSW). The implication of this amendment was to allow majority verdicts in cases where
reasonable time for deliberation has passed and the court is satisfied that a unanimous
verdict will not be reached. Under section 55F of this Act, majority verdict is defined as ‘a
verdict agreed to by 11 jurors where the jury consists of 12 persons’ and ‘a verdict agreed to
by 10 jurors where the jury consists of 11 persons’. The amendment to the jury system was
both effective and ineffective. The reason it was considered effective was that it removes
the power of rogue or unreasonable jurors, avoids delays like hung juries, lowers cost, and
lowers stress on the victim of a retrial. The criticism of it is that sometimes there may not
be enough time to gain sufficient evidence, which removes the possibility of a ‘reasonable
doubt’ decision. Therefore, the jury system is evidently becoming more effective in the
criminal trial process as jury laws are progressively being amended.

10
Explain the use of defences to criminal charges in achieving justice.
Legal complete and partial defences help achieve justice by allowing the court to consider
individuals' circumstances which may justify the accused actus reus (guilty act), or reduce
their culpability. They limit the risk of an unjust conviction by permitting less liability on the
accused under their individual circumstances. such as mental illness where the accused
may not have had the mens rea (criminal intent). Complete defences justifies the
defendants actions, and if proved the charges can be dropped or acquitted. Complete
defences include mental illness, self defence, compulsion and consent. For example,
Mental illness is effective in upholding the rule of law as it promotes equity in the criminal
trial process. This defence states that it needs to be proven on the balance of probabilities,
that the accused was not responsible for their actions as they could not have formed a
necessary intent, and would not have known the consequences. This defence was used in
the M’Naghten case, where he pleaded that he was insane and did not understand the
nature of the crime, and was therefore acquitted of the charge. Furthermore, society being
able to plead self defence protects society as it allows individuals to use reasonable force
 against another individual to defend oneself or another. Partial defences such as
provocation and substantial impairment, act as a mitigating factor for a defendant, and it
may help reduce their sentence or lead to an acquittal. Extreme Provocation is the defence
where an accused claims that their actions are a direct result of another's actions, which
caused them to lose control and commit a crime. This defence must be proved beyond
reasonable doubt, that anybody else would have used the same amount of force.
According to the Sydney Morning Herald in 2006, Ms Brown was dropped of all murder
and manslaughter charges as she was able to prove that how she responded to a man
robbing her was reasonable. Substantial impairment of responsibility can help reduce
charges of murder or manslaughter. The accused must prove that they suffer from mental
abnormality, such a low IQ or mental retardation. This defence is more commonly used as it
is easier to prove than mental illness.

INFO: LEGISLATION/CASES
SENTENCING AND
Crimes sentencing and punishment act 1999
PUNISHMENT ●​ The primary source of sentencing law
●​ Purposes for which a sentence or penalties may be imposed and when they can be
used, as well as the number of factors and guidelines for sentencing.
●​ Additionally, outlines maximum penalties.

●​ Statutory and Crimes (Sentencing Procedure) Amendment Act 2001 (NSW):

judicial A judicial guideline is to reduce inconsistency in the judgements of trials.
●​ Gives the Court of Criminal Appeal the power to issue sentencing guidelines
guidelines
●​ Makes earlier, state-issued guidelines valid
Statutory guidelines are Issued by parliament clarifying how judges are to sentence.
●​ Sets out general guidelines for the courts to use in sentencing offenders
●​ The degree of weight place on aggravating and mitigating factors will be determined by
each individual case
 Legislation: - Victims Right + Support Act 2013 (NSW) - The Crimes (Sentencing Procedure)
Amendment Act 2001 (NSW)

●​ The purpose of section B relates to deterrence (S&G), retribution, rehabilitation, incapacitation

punishment:
Deterrence (specific and general) - BALI 9
deterrence
(specific and Specific deterrence: punishment against an individual offender aiming to deter them from
general),
committing a crime in the future
retribution,
rehabilitation, General deterrence: punishment attempting to make an example of an offender in order to
incapacitation
send a message to the test of the community.

Bali 9 - global publicity gave general deterrence - you can be anyone and still get a really harsh

penalty - drug trafficking convictions plummeted

Retribution - SKAFF CASE

definition: punishment considered to be morally right or deserved because of the nature of the

crime.

the role of retribution is the main justification

Skaff: R v AEM, KEM, MM - mitigating factor being they were very young so they were 'led'

- they were given young sentences even though though they were really young
 Rehabilitation - (DRUG COURT)

Rehabilitation: an objective of sentencing designed to reform the offender so that they do not

commit offences in the future.

most effective form of sentence because it endeavors for the behavior to never happen again,

it provides s solution particularly for less serious offences.

Drug court: on local level - if you're arrested on a drug offense you can request to have it heard

at a drug court, but you must go through rehabilitation, it is part of the conditions of going.

Incapacitation

Incapacitation: making an offender incapable of committing further offences by restricting

their freedom.

pretty much: you go to jail.

●​ Factors AGGRAVATING
affecting a ●​ The offender was a government employee. Eg, police officer.
sentencing ●​ the offence was committed in the presence of a child under 18 years
decision:
aggravating MITIGATING
and mitigating ●​ The offence was provoked by a victim
circumstances ●​ The offender was a good person
●​ They are unlikely to reoffend
●​ If the offender shows remorse, however needs sufficient evidence
●​ The offender was young and inexperienced
 Judges must use judicial discretion

●​ The role of the Role of victim in sentencing Victims Right + Support Act 2013 (NSW)
victim in
A verdict is decided by the juries -> a Victim impact statement (VIS) is read -> then a sentence - victims under this act have the rights to compensation, protection from the accused, the right
sentencing
is decided to protection of identity, right to information, the right to submit a victim impact statement

Victim impact statements:

Give victim or victims family a voice for closure

Victims rights

Victims Right + Support Act 2013 (NSW)

- victims under this act have the rights to compensation, protection from the accused, the right

to protection of identity, right to information, the right to submit a victim impact statement

●​ Appeals Can be made either against the conviction or against the sentence R v Jurisic → Dangerous Driving; Killed 3 people
Jurisic was initially sentenced by the District Court of New South Wales. The court handed
– The prosecution can appeal against the leniency of the sentence but generally cannot appeal down a sentence that was perceived as lenient, with a non-parole period of 18 months.
against an acquittal The Director of Public Prosecutions (DPP) appealed the sentence on the grounds that it was
manifestly inadequate, given the seriousness of the offence.
– The process is important as it allows higher courts to supervise the discretion of magistrates
and judges when they are making sentencing decisions. The Court of Criminal Appeal, presided over by Chief Justice Spigelman, agreed with the DPP
and found that the original sentence was indeed too lenient. The court increased Jurisic's
●​ Appeals are technical questions of law not heard by a jury.
 ●​ Defendants can appeal on the grounds of: sentence to a full term of 5 years imprisonment with a non-parole period of 3 years.
○​ An error of law (for example, false evidence, perjury in the trial, tainted
evidence)
○​ The sentence/punishment was too severe

●​ Types of ○​ Types of penalties

penalties ■​ Imprisonment → deprivation of liberty, purpose of incapacitation and
including: no retribution
conviction recorded,
■​ Fines → monetary sanction, purpose of a deterrence and retribution
caution, fine, bond,
■​ Diversionary programs → alternative dispute resolution, considers the
suspended sentence,
probation, criminal individual circumstances (M & A factors), purpose of rehabilitation,

infringement notice, decreases recidivism

penalty units,
community service
order, home
detention, periodic
detention, forfeiture
of assets,
imprisonment,
diversionary
programs

●​ Alternative Restorative Justice: aims to both address the causes of criminal behaviour and to allow the
methods of offender to rectify the harm he or she has caused. The two forms are justice conferencing and
sentencing circle sentencing.
including circle
sentencing, → This involves bringing together the offender and the victim, offering a chance to take
restorative responsibility for their actions and an opportunity to be confronted. It can be confronting and
justice difficult, but it overall is voluntary. → Many victims report the helpfulness of restorative justice
 in the recovery from a crime.

Circle sentencing: For Aboriginal offenders. Brought before a circle of people involved in the
offender, including the victim, the victims family, community elders, the defence lawyer, the
prosecution and magistrate.

→ This is an alternative court for sentencing indigenous Australians

· It is designed for repeat offender and more serious cases

· The process is based on Aboriginal customary law, and is a form of a diversionary program

· It involves a circle of community members and a magistrate to discuss the offender’s crime
and tailor the most appropriate sentence

· It involves local Aboriginal people in order to make it more meaningful

· The programs also aims to improve the understanding between Aboriginal communities and
the courts

●​ post-sentencin Security Classification

g When sentenced to imprisonment, Corrective Services NSW will assess the security risk of the

considerations, prisoner so that they can be sent to the most appropriate correctional facility.
including:
security Prisoners in maximum security have the least amount of freedom. All prisoners lose the right to
classification,
vote, however they do have visitation rights, including by their legal counsel and the right to
protective
receive an adequate standard of care.
custody,
parole,
preventative
nistration of Sentences) Act 1999 (NSW) prisoners who feel that they

prisoners can apply to be placed into protective custody. This is where

om the general prison population and isolated usually for their safety.

er police officers and prisoners with a mental illness may be targeted

ay want to apply for protective custody.

nent release of a prisoner before the expiry of a sentence, on the

our.
n offender is allowed to serve the remainder of their prison sentence in
to conditions.

n detainees to be re-detained if they are judged to pose a high risk of

nt or sexual crime.

on once their sentence has ended

tration
onvicted of serious sexual offence, must register with the police
esidence and provide the police with certain information including any
person from a country and returning that person to his/her country of

●​ SENTENCING AND PUNISHMENT

○​ Statutory and Judicial Guidelines → Crimes (Sentencing Procedure)
Amendment Act 2001 (NSW) ; this sets out sentencing guidelines
○​ Aggravating and mitigating factors → AGGRAVATING (eg. if they show no
remorse or the offence was committed in the presence of a child under 18
years) → MITIGATING (eg. If the offender shows remorse, however needs
sufficient evidence or the offender was young)

○​ The role of victims → Victims Right + Support Act 2013 (NSW) victims under
this act have the rights to compensation, protection from the accused, the
right to protection of identity, right to information, the right to submit a
victim impact statement → Victim Impact Statement
○​ Appeals →
○​ Purposes of punishment
■​ Deterrence (specific or general)
■​ Retribution
■​ Rehabilitation
■​ Incapacitation
○​ Types of penalties
■​ Imprisonment → deprivation of liberty, purpose of incapacitation and
retribution
■​ Fines → monetary sanction, purpose of a deterrence and retribution
■​ Diversionary programs → alternative dispute resolution, considers the
individual circumstances (M & A factors), purpose of rehabilitation,
decreases recidivism
10
Evaluate the effectiveness of different types of penalties, including diversionary
programs
Penalties are moderately effective as they reflect the severity of a crime committed while
being able to achieve fairness, equity, transparency, and uphold the rule of law.
Different levels of crime reflect the punishment given, for example you wouldn't send an
individual to jail for going 10km over the speed limit. Under the Crimes (sentencing
procedure) Act 1999 (NSW), there are different types of penalties, including but not limited
to: fines, diversionary programs and imprisonment.

Section 3A(a) - Proportionality Principle.

The offender is adequately punished for the nature (seriousness) of crime but the penalty is
not so onerous (harsh) as to remove all possibility of rehabilitation.

Imprisonment is a deprivation of liberty, where a criminal is sent to prison for a determined

amount of time, however, it is used as a last resort in the sentencing procedure. It has the
purpose of incapacitation and retribution, providing justice to victims and society through
proportionate sentencing and protecting community safety. However, this form of
punishment is considered ineffective due to the high rates of recidivism which are a
common feature of the criminogenic effect (whereby being surrounded by criminals has a
very negative effect and often leads to an increase in anti-social behaviour). According to
the institute of public affairs more than 60% of Australia’s prison population has been
previously incarcerated. Imprisonment is a costly and lengthy process that relies heavily on
the Australian government for funding and maintenance of operating prisons. However,
this form of punishment can be an effective mechanism for criminals who have committed
indictable offences, as the crime they have committed corresponds with the penalty they
receive.
Furthermore, fines provide a moderately sanction for deterrence and retribution. Fines are
a sum of money owed to the government for summary and strict liability offences. For
example, speeding is a strict liability offence (does not require mens rea) that commonly
receives a fine as punishment. Although it wouldn’t restrict the general public from not
committing the crime, as a specific deterrent an individual wouldn’t want to be fined again
or lose their licence. Slight lack of equity because a fine will not impact a rich person as
much as it would a poor person.

Diversionary programs, such as drug courts, are an alternate sentencing procedure that
allows for the effective balancing of justice with the rights of individuals and the
community. Judges may use their discretion, alongside judicial and statutory guidelines, to
determine whether a diversionary program will be a more effective procedure, as they
consider the accused's individual circumstances, aggravating and mitigating circumstances,
for example, going to the drug court may be more effective in decreasing their chances of
recidivism because there are compulsory rehabilitation programs which are less likely to be
accessed if the person is sent to jail. In addition, the increased educational benefits which
go alongside the rehab program will assist in further preventing the person from
reoffending. Also, again there is no criminogenic effect!

In conclusion, outlined in the Crimes (Sentencing and Procedure) Act 1999 (NSW) penalties
range in effectiveness concerning their ability to achieve fairness, justice, equality and
upholding the rule of law.

Evaluate the effectiveness of sentencing and punishment as a means of achieving justice

Post sentencing considerations, things judges must consider.
A separate area of the prison for judges, celebs etc.
Other forms of sentencing
 INFO: LEGISLATION/CASES
YOUNG OFFENDERS

●​ Age of criminal Doli incapax : incapable of wrong”; the presumption that children under a certain age cannot The Children (Criminal proceedings Act 1987 NSW)
responsibility be held legally responsible for their actions and therefore cannot be found guilty for an offence.

Common law doctrine

10 - No child can be found guilty for an offence as they are deemed Doli incapax.
10-13- Have the rebuttable presumption of doli incapax. must be proven beyond reasonable
doubt for having the mens rea.
14-17- The presumption of doli incapax no longer applies and they can be deemed responsible
for their actions.

●​ The rights of Children must have a responsible adult present when being questioned by police to ensure
children when that their rights are being protected and to ensure they are providing support and guidance. It
questioned or ensures that they have an understanding of the situation and their rights which can prevent
arrested
coercion or manipulation.

Children also have the right to silence, this ensures the youths rights are protected and that
they can receive legal advice. This makes sure that they have proper support and legal advice.
-alike adults

●​ If under 18, a strip search can only be conducted if the youth is with a responsible adult
●​ If a DNA test is required, a sample can only be taken with a children's court order.
●​ Police must inform the youth on their rights when being questioned or arrested.
●​ Shorter periods of detention is recommended.

●​ Children's There is a separate court - Children's Court Act 1987 (NSW) Children's Court Act 1987 (NSW)
court - ●​ Deals with criminal matters with people under 18
 procedures ●​ The CC is a place to protect the interests of accused people under 18, through providing
and operation extra support , keeping their names confidential, along with having no audience.
●​ This ensures that the court proceedings are less intimidating for the youth, with a goal
of providing rehabilitation.

●​ Penalties for ●​ The penalty imposed on a child shall be no greater than that of an adult of the same
children crime.
●​ Children should be assisted with reintegration into the community to sustain their
family and community.
●​ The effect on the victim should be considered although this may be subject to other
principles.
●​ Having different penalties can reduce recidivism.

Three penalties that apply to children, and how they differ from adult penalties:

Bond: The child can be released on a good behaviour bond for up to a maximum of two years,
whereas an adult is up to 5 years.

Community service order (CSO): a severe penalty where An offender can be sentenced to
perform community service work by a court as part of an Intensive Correction Order or a
Community Correction Order. A child can only be penalised for 16-100 hours, whereas an adult
can be 500 or less hours.

Conviction: For young offenders (16-17) , the court can decide whether to record a conviction,
but for children under 16 years old no conviction can be recorded.

Issues and impacts of Youth justice centres:

●​ YJC overuses segregation and confinement to manage young people.
 ●​ This can have a negative impact on their most vulnerable years, and the isolation can
impact their physical and psychological health.
●​ Due to the Bail act 2013, means that many children were held on remand, which goes
against the presumption of innocence.
●​ This can discourage rehabilitation and lead to higher rates of recidivism.

●​ Alternatives Young offenders Act 1997 (NSW)

for court

●​ The alternatives to court for young offenders sare effective, as alternatives such as:
cautions warnings and youth justice conferences embrace the welfare model of youth
and encourages rehabilitation. However, there are criticisms as YOA’s range of offences
it applies to is limited, and thus, some young offenders may not gain the benefits it is
meant to provide.

●​ The court will consider young offenders' individual circumstances as the court may affect
the youth differently as to an adult.

●​ The main principle concerning young offenders is rehabilitation.

●​ For the safety of the youth there is a separate court to ensure they are not intimated
and their names are kept confidential.

Assess the extent to which law reflects moral and ethical standards
●​ High extent → pretty much all of the young offenders information reflects moral
and ethical standards as they are treated differently because they are young

The role of discretion in the criminal justice system

●​ Penalties for children → it should be focused on rehabilitation
 Assess the effectiveness of the criminal justice system when dealing with
young offenders
●​ Age of criminal responsibility
○​ The Children (Criminal proceedings Act 1987 NSW)
●​ The rights of children
●​ Children’s court
●​ Alternatives for court
●​ Penalties for children

INFO: LEGISLATION/CASES
INTERNATIONAL
CRIME

●​ Categories of International crime refers to the broad term covering any crime that is punishable by a state, Geneva conventions Act 1957 (cth)
international but has international origin or consequences, or a crime recognised by the international ●​ Outlines agreements and conventions of war crimes
crime, community.
including:
-this differs from domestic crime as it involves crossing of borders.
-​ Crimes against
the
Universal jurisdiction allows states or international organisations to claim criminal jurisdiction
international
community over an accused person regardless of where the alleged crime was committed. This is granted

-​ Transnational by states which believe the alleged crime is so serious that normal laws of criminal jurisdiction
crimes do not apply.

Crimes against humanity:

a most serious crime, of concern to the international community as a whole, and recognised by
the international
 community as requiring punishment.
●​ War crimes – various crimes occurring during war (outlines under The Geneva
Conventions 1864)
○​ Torture
○​ Inhuman treatment
○​ Biological experiments
○​ Extensive and military unjustified destructions
○​ Attacks at civilian populations or objects
○​ Genocide – brutal acts intended to destroy all or part of a national, ethnic, racial,
or religious group

Transnational crimes
crime that occurs across international borders, either in origin or effect. Eg. Bali 9

●​ Dealing with ●​ To combat such crimes the International criminal court was established by the Rome ●​ A landmark case was the Thomas Labanga case, being the first prosecution by the ICC
international Statute which is a permanent international tribunal with the purpose of prosecuting for war crimes - training child soldiers. However, although its promising appearance in
crime: individuals for breaching international crime. theory, it is only moderately effective as they have only made 10 convictions as the ICC
-​ Domestic and
can only exercise its jurisdiction when the accused is a national of a member state of the
international
●​ The Australian legal system has recognised the ICC and ratified the Rome statute into treaty, the alleged crime occurred in the territory of a member state, or the situation is
limitations
the Australian domestic law. This means that Australia has a general obligation to referred to the ICC by the United Nations council. Which consequently makes the
cooperate fully with the court's investigations and prosecutions, and therefore combat prosecution of criminals extremely difficult, therefore only partially effective.
international crime.
●​ Furthermore, to facilitate Australian compliance with the Rome statute the International
Criminal Court Act 2002 (cth) was established. This is an effective domestic measure as it
increases collaboration and compliance between international and domestic legal
systems.
Australian federal Police Act 1979 (cth)
Domestic:
Australian federal police
●​ A domestic measure established by the Australian Federal Police Act 1979 (cth) was the
Australian federal police (AFP). This police force has the purpose of upholding the
 commonwealth criminal law and guarding Australia's interests from crime in Australia
and overseas.

●​ The AFP works with the Australian Border Force (ABF) and other agencies to strengthen
border security and prevent the illegal movement of goods, people, and contraband
across Australia's borders. This includes targeting drug trafficking, human trafficking,
weapons smuggling, and other forms of transnational crime.
●​ According to “ASPI” These measures have proven to be partially effective as In
International and limitation: “2020–21, the AFP’s international work resulted in reducing $7 billion of harm through
International Criminal Police Organization (INTERPOL) international drug seizures”, and “ This vital work must continue, but achieving these
●​ An international body of police which works collaboratively with domestic police forces, kinds of results seems set to get harder not easier” due to the immense increase in
such as the Australian Federal Police. INTERPOL facilitates international police globalisation and travel. Evidently revealing that this body of police is effective however
cooperation and assists law enforcement agencies worldwide in combating still has limitations and difficulties in dealing with international crime.
transnational crime.
●​ according to the Interpol website: they” support investigation and prosecution of
perpetrators of genocide, crimes against humanity and war crimes”. It operates a range
of databases and communication channels to share information and coordinate efforts
across borders.
●​ However, Transnational crime is highly difficult to combat as every state has their own
domestic laws and sovereignty, and therefore makes it extremely difficult to prosecute a
criminal when they cross borders.

Assess the extent to which law reflects moral and ethical standards
The role of discretion in the criminal justice system
Issues of compliance and noncompliance
The extent to which law reflects moral and ethical standards
The role of law reform in the criminal justice system
The extent to which the law balances the rights of victims, offenders and society
The effectiveness of legal and non-legal measures in achieving justice

Evaluate the effectiveness of the domestic and international legal systems in dealing with
international crime
●​ Moderately effective
●​ Domestic - Australia is a responsible global citizen
○​ Federal police
○​ Border force
○​ R v Tang (2008)
■​ Criminal code act 1995 - ratified and enacted
●​ State sovereignty
○​ Due to different morals, ethics and cultures → less effective in other
domestic legal systems, such as Yemen. The international legal systems can
not successfully deal with international crime

●​ International (crimes against the international community)

○​ INTERPOL
○​ ICC → Thomas Lubanga
○​ Transnational → Bali 9 (general deterrence)

Response:
International crime is defined as transnational crime or crimes against the international
community. Australia is a responsible global citizen, its legal system has ratified and
incorporated international laws into domestic legislation, alongside establishing the
federal police and the border force to respond to international crime. This has been
moderately effective. State Sovereignty is the right that each country has to govern
themselves without external influence. Due to the implications of state sovereignty, with
each state having differing morals, ethics and culture, international legal systems such as
the International Criminal Court (ICC) and International Police Force (INTERPOL) are only
moderately effective in dealing with international crime.

Domestic

International

Include some non legal measures below: