Band 6 Legal Exam Notes PDF

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Received a 97 in the Legal Studies HSC with this. ...

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Legal Studies: Topic 1 - Crime 1. The Nature of Crime ● The Meaning of Crime Crime: an act or omission against the state for which punishment is prescribed (Against all of society because it does not adhere with society’s morals)

Act: something an individual does (EG: a punch) Omission: failure to do something (EG: failure to wear a seatbelt) ● The Elements of a Crime In order for the prosecution to prove the accused’s guilt, they must prove the elements of a crime. Prosecution must prove Actus Reus & Mens Rea to prove accused guilty beyond reasonable doubt i) Actus Reus - voluntary (doing it of your own free will) act/omission (EG: punching someone in the face) EG: ● Ryan v The Queen (1967) ○ Claimed shooting the cashier was an involuntary reflex ○ Court said no - he voluntarily loaded the gun, held up the store, had his finger on the trigger etc.

● Jiminez v R (1992) - appeal ○ Deemed not actus reus ○ Did not know he had narcolepsy - fell asleep while driving resulting in someone’s death No Actus Reus when action is involuntary ii) Mens  Rea - guilty mind or intention to commit a crime Exception: I f you commit a crime with reckless indifference, this is also Mens Rea Reckless Indifference: when an individual does something so rashly, without considering consequences, it causes harm, without necessarily having the intent to cause harm or commit a crime EG: ● R v Hyam (1975) ○ Ms Hyam got dumped ○ Sent a fire letter to the house (puts it through the front door’s letter slot) ○ Burns down house and kills new girlfriend and the 2 children ○ Claimed she didn’t know anyone was home and had no intent to kill/harm ○ Case of reckless indifference ● Strict Liability Offences Strict Liability Offences: these are exceptions to the rule that the prosecution must prove both Actus Reus & Mens Rea ● Only requires Actus Reus ● Many are driving offences: ○ EG: speed camera clocks you doing 80 in a 60 zone ○ (doesn’t matter whether you realised/intended to) ○ Actus Reus is sufficient for conviction ● Regulatory offences are strict liability offences ○ EG: ■ Lighting a fire on a no fire day ■ Riding on public transport without a ticket

■ ■ ■ ■

Being 16 on a train with a can of spray paint Selling alcohol to someone under 18 Being under 16 in possession of a knife Selling someone under 16 a knife

EXTRA EG: ● He Kaw Teh (1985) ○ Was a Cth offence (someone tampered with his bag at customs - put drugs in it) ○ Usually would be a strict liability offence but the penalty was so harsh (25 years in prison) that it was an exception of: ■ ABSOLUTE LIABILITY - prosecution must prove both Mens Rea & Actus Rea ○ They couldn’t prove Mens Rea so he was acquitted ● Causation Causation: refers to the fact that the prosecution must prove a direct link between the criminal action of the accused and the harm caused EG: ● R v Blaue (1975) ○ Breaks into a woman’s home, carrying a knife ○ Wants to steal stuff but she wakes up and stabs her ○ She loses a lot of blood but she refuses to get a blood transfusion because she’s a Jehovah’s witness (therefore against her beliefs to do so) so she died ○ Causation was deemed there so Blaue was considered guilty of murder (his stabbing caused her death) You take the victim as you see them: including physical/mental conditions. It doesn’t matter whether or not you were aware of any conditions, it’s still your fault.

● Categories of Crime 1) Offences against the person: a) Murder Crimes Act 1900 (NSW) s.18 -- Defines Murder & Manslaughter Murder: is where an individual’s act or omission or reckless indifference for human life causes the death of another person. This is done with the intention to kill that person or inflict grievous bodily harm Maximum Penalty - 25 years imprisonment or life b) Manslaughter Manslaughter: occurs when an individual causes the death of another person but without the intent to do so 2 Types: 01. V  oluntary - occurs when the accused intended to kill but they raise a partial defence of provocation or substantial impairment of responsibility that reduce the charge from murder to manslaughter EG: Killing you abuser Does not include self-defence, which is a complete defence, but does not include excessive self-defence, which is a partial defence. 02. Involuntary  i.

Manslaughter by unlawful and dangerous act ➢ EG: Boat Case - Matthew Reynolds, Percy Smalls

ii.

Manslaughter by criminal negligence ➢ EG: ○ R v SW & BW (2009) - Ebony Case

○ R v Sams (2009) - Didn’t get their child medicine for eczema and she died c) Assault i.

Common Assault - a threat or causing harm to someone else (most basic type)

ii.

Grievous Bodily Harm (not sure whether this goes into common assault)

iii.

Sexual Assault (never refer to it as rape) Definitions: 01. Anything that involves acts of a sexual nature (does not necessarily have to involve body parts/sex acts/intercourse) 02. Any person who has sexual intercouse (open for interpretation - not necessarily traditional intercourse) with another person without the consent of the other person & who knows that the other person does not consent

2) Offences Against the Sovereign: (& government) a) Sedition: the act of inciting hatred for the gov’t/sovereign b) Treason: the act of betraying the gov’t/sovereign their country or attempting to kill or overthrow the sovereign/gov’t (No Aus cases) 3) Economic Offences: a) Property Offences: i.

Larceny - is the taking & carrying away of property belonging to another with the intention of permanently depriving the owner of the property (AKA - stealing)

EG: ● R v Easom (1971) [Not Aus]

○ Lots of larceny in movie theatres when theatre's lights went down ○ Easom crawling around picking possessions from women’s purses ○ Got set up (trap by cops) but defended himself by saying he was going to return the purse since it had nothing he wanted to steal therefore it was not larceny ● Potisk (1973) [South Aus] ○ Got overpaid while exchanging currency (forex) ○ If you are aware of the extra money and do nothing about it, it’s still larceny ○ Potisk had to go to trial but won because he proved he was unaware of the extra money because he didn’t count it ○ If he had, it would have been larceny ii.

Break & Enter (then maybe steal)

iii.

Robbery - is stealing with either threat of violence of use of violence ○ When there is use of weapon -- Armed Robbery ○ Violence is what distinguishes robbery from larceny

iv.

Malicious Damage to Property

v.

Graffiti

b) White Collar Crime: Crimes committed by, usually, professional people in the course of their employment i.

Fraud - the wrongful or criminal deception/pretending to be someone to make financial gain

ii.

Embezzlement - when an individual uses the employer’s/company’s assets for personal private gain

● EG: Happened in a private school in North Shore: School business manager created fake account to pay non-existent employees (so he could take the money for himself) iii.

Insider Trading - when an individual, working for a company, uses confidential information to buy, sell or trade shares

c) Computer Crime: crime that is committed using technology such as computers, internet, emails etc. i.

Identity Theft - stealing someone’s identity

ii.

Hacking - when you break into a computer system without authorisation ○ Cracking -- is using the system/information, for personal gain, received from hacking (w/ malicious intent)

4) Drug Offences: ○ Drugs -- illegal substance or prescription drugs used illegally a) Use & Possession ○ Usually state offence ○ Depends on weight & amount (Different for each type) ○ Under a certain weight, deemed for person use ○ If over, becomes drug supply & trafficking (different offence) -- traffickable amount ○ Possession: means anything within your control b) Drug supply/trafficking ○ Usually state offence c) Manufacture & Cultivation ○ Usually state offence ○ Growing and making ○ Precursors: things used to make drugs d) Drug Importation ○ Federal (Cth) offence

○ Often a transnational crime ○ Could been involved in the conspiracy or planning of it (not necessarily even execute the crime -- still a serious offence) ○ Drug importation penalties (for the actual drug): ■ Life imprisonment for s.307.1 Criminal Code—importing/exporting commercial quantity of border controlled drugs/plants

■ 25 years’ imprisonment for s.307.2 Criminal Code—importing/exporting marketable quantity of border controlled drugs/plants

■ 10 years’ imprisonment for s.307.3 Criminal Code—importing/exporting border controlled drugs.

○ If caught importing/exporting controlled precursors, different max penalties are given: ■ 25 years’ for imprisonment s.307.11 Criminal Code—importing/exporting commercial quantity of border controlled precursors

■ 15 years’ imprisonment for s.307.12 Criminal Code—importing/exporting marketable quantity of border controlled precursors

■ 7 years’ imprisonment for s.307.13 Criminal Code – importing/exporting border controlled precursors.

5) Driving Offences: ● Can be very serious Driving offences are strict liability offences: only need actus reus (no mens rea) E.G: Speeding in a school zone a) Failure to wear a seatbelt b) Speeding c) Red light, stop signs d) DUI - alcohol, drugs (can be prescription) e) Negligent driving - E.G: Ms Jone’s brother’s car getting hit by a truck (negligent driver) who didn’t see his hazard lights f)

Fatality - negligent driving causing death

6) Public Order Offences: -rioting -offensive language -affray: causing a major disturbance (individuals may feel as though there is a risk of safety) -obscene displays Public Order Offences: offences that upset peace and order within society/disturbing public peace in general 7) Preliminary Crimes: a) Attempts Attempting to commit a crime can be just as liable and receive the same punishments or similar. Can induce severe offences. E.G: Attempt to murder

Sometimes can be punished with 2 offences: ● The attempt ● Actually successfully carrying it out b) Conspiracy Conspiracy: is when 2 or more people plan to commit a crime. The planning in itself is a crime -- known as the crime of conspiracy. E.G: DPP vs Standen (2011) -- Standen was the deputy director of the NSW Crime Commission, his job involved drug crimes. Was arrested by NSW and Federal Police for conspiring to import the precursor and for actually managing to import the precursor ● Summary and Indictable Offences Summary Offence: a minor or less serious crime ○ Dealt with in the local court ○ Maximum penalty is 2 years imprisonment ○ E.G: shoplifting, drink driving, some drug possession offences, many public order offences (E.G: offensive language) Indictable Offence: a serious crime ○ E.G: murder, armed robbery ○ Dealt with in either Supreme (most serious indictable offenses: murder, manslaughter etc.) or District Court (majority of indictable offenses: sexual assault, armed robbery etc.)

Indictable offences/charges will have a committal hearing in the Local Court to determine where a prima facie case exists Prima Facie: whether there is sufficient evidence for accused to be tried Sometimes, some less serious indictable offences may be dealt with s ummarily (in the local court as though they were summary E.G: assault) The benefit of having an indictable offence treated summarily is that the maximum sentence is 2 years and it is likely the accused will receive less -- the victim may feel as though this lacks justice

● Parties to a Crime: i. Principal in the first degree: the main perpetrator of the crime E.G: the person who physically robs the bank Principal in the second degree: the person who assists the principal in the first degree in committing the crime E.G: the person who stands on guard and acts like a lookout while the other is physically robbing ii.

Accessory before the fact: the person who helps the perpetrator before the crime is committed E.G: the person who provides the guns or blueprints iii.

Accessory after the fact: assists the perpetrators after the crime is committed E.G: the person hiding the money afterwards iv.

● Factors Affecting Criminal Behaviour: ○ Socio-economic factors -■ Differential association theory: the people with whom you associate with during your formative years are fundamental in establishing your values and morals ■ E.G: cyclical nature of domestic violence ○ Mental issues/psychological issues ○ Personal gain/greed ○ Upbringing ○ Survival ○ Revenge ○ Emotion ○ Fear/hatred ○ Peer pressure ○ Political motivations It was suggested that genetics was a factor though this has been disproven

● Crime Prevention: a) Situational Crime Prevention: taking steps in the physical environment to reduce crime/make it harder to commit E.G: ○ ○ ○ ○ ○ ○ ○ ○

Use of CCTV Lockout laws Electronic tagging Increasing police patrols (putting them on the street) Use of mobile speed cameras Increased street lighting Sniffer dogs RBT: Random Breath Test b) Social Crime Prevention: where there is some sort of policy or educational program or rehabilitation program to dissuade people from committing a crime

E.G: ○ ○ ○ ○ ○

Paul Dillon Rehab NewStart Youth Allowance Policies for schools to keep children in school for longer to increase education

2. The Criminal Investigation Process ● Police Powers: Law Enforcement (Powers & Responsibility) Act 2002 (NSW) AKA: LEPRA -○ Contains the statutory powers of police in NSW in relation to crime (which is a matter mainly dealt with at a state level) If police abuse their powers or do something outside of what LEPA says they can do, the Law Enforcement Conduct Commission (AKA: Law Integrity Commission) intervenes. Anyone can report to them about NSW Police Force or NSW Crime misconduct and misadventure. LECC provides independent oversight and review (including, where appropriate, real time monitoring and review) of investigations by the NSW Police Force of misconduct matters concerning the conduct of its members and the NSW Crime Commission concerning its officers. It uses its investigative powers to identify and deal with cases of misconduct and maladministration in these agencies. The LECC can: ○

publish investigation reports

○

refer matters to the NSW Police Force or the NSW Crime Commission for action

○

request further investigation or review of a management action decision by the NSW Police Force or NSW Crime Commission

○

publish reports and/or make recommendations aimed at preventing further potential misconduct or maladministration

In general, police in NSW, have the power to: ○

Investigate a crime

○

Arrest suspects

○

Search and seize property

○

Gather evidence

○

Interrogate/Question suspects

○

Charge suspects

○

Grant bail

In addition, NSW police also perform an educational role within society, by visiting schools to encourage the prevention of crime. They also work in detecting crime. E.G: RBT, speed cameras Aims of police to protect community and property by: ○

Preventing, detecting and investigating crime

○

Monitoring and promoting road safety

○

Maintaining social order

○

Performing and coordinating emergency and rescue operations

In summary: NSW police have a wide range of powers but are kept in check by L  ECC & L  EPRA

● Reporting Crime: Police generally rely on members of the public (citizens) reporting crime How to report crime: -000 (emergencies) -Crime Stoppers Might ring the local police The police can also detect crime themselves: -RBT -radars -red lights -patrols → esp. Late night on weekends -CCTV

But mainly rely on citizens Oftentimes members of the public are reluctant to report crime Why individuals may not report crimes: ○ Don’t want to get involved ○ Fear of retaliation ○ Police won’t help ○ Friendship/peer pressure ○ Threatened by perpetrator ○ May incriminate themselves ○ Don’t want to deal with legal proceedings ○ Shamed & embarrassed ○ Fear of getting caught (calling secretly in the midst of a dangerous situation)

● Investigating Crime: a) Gathering Evidence Controlled by 2 acts: 1) LEPRA 2) Evidence Act 1995 (NSW) - SETS OUT THE ADMISSIBILITY OF EVIDENCE If evidence is not gathered legally according to the Evidence Act, the evidence becomes inadmissible in court -- judge/magistrate rules that the evidence can’t be used. Types of Evidence: -phone records -emails -text messages -witness statements -CCTV footage -police will take photographs -forensic evidence: ■ Implement (weapon i think?) ■ DNA ■ Footprints ■ Fingerprints

-traffic accident: traffic accident team to perform measurements -serious crime: police may establish a crime  scene -- crime scenes allow police special powers to deny outsider entry, anything in there could be considered evidence -photographs -documents (physical and online) -bank accounts -autopsy reports -receipts E.G: R  v Gittany (2014) ○ CCTV footage from the lift, seen dragginer her ○ Main evidence was a lack of evidence -- claimed she climbed over fence but there was a lack of any fingerprint evidence on the ledge she allegedly climbed b) The Use of Technology ○ ○ ○ ○ ○ ○ ○

CCTV footage DNA testing: evidentiary sampling Emails, texts etc. Computer browsing history Mobile phone tracking Ballistics testing (what gun/bullet(s) were used) Forensic Testing

E.G: Robert Xie Murder Trial ‘The evidence that helped catch a killer.’ -- murdered extended members of his family in Epping: 1) DNA tests - found blood from 4 of his victims in a stain on his garage floor 2) Police video interviews of suspects 3) Audio -- of frightened 000 calls from his wife c) Search and Seizure i) Without a Warrant: i n general police may search a person and their property, if the police have reasonable grounds to suspect that you have committed an offence, you’ve stolen goods, have prohibited drugs on your person/property, weapons. ii) With a Warrant:

The warrant will specify what premises can be searched and what goods they’re looking for. It will also detail what goods they can seize if found. They may search all of the premises described in the warrant, and take any item named on the warrant or any other offence. They must provide an itemised receipt of everything they seize.

● Arrest, charge, summons, warrants: a) Arrest: occurs when police detain a person and take them into custody, arrests can be done with or without a warrant. Without a warrant: i n general, police may arrest you if1) They have reasonable grounds to suspect you are about to commit an offence 2) You’re in the process of committing an offence 3) You have just committed an offence 4) You are breaking the peace 5) You are breaching your bail conditions 6) Police need to serve an AVO on you

 olice may arrest a suspect if they have obtained an arrest warrant from With a warrant: p a judicial officer. Police will seek an arrest warrant if they have enough information and sufficient evidence. Cannot be forced to go to police station unless you are arrested At the moment of arrest the police caution you of your r ight to remain silent ● Detention and Interrogation: Detention: [important to take you to a police station immediately[ ○ ○ ○ ○

You will be given a document which sets out your rights Allowed to contact a lawyer At first you will be held in a holding cell Poli...