Crime notes PDF

Preview

Summary

Class of 21'. Lecture notes...

Description

CRIME NOTES Principal focus Through the use of a range of contemporary examples, students investigate criminal law, processes and institutions and the tension between community interests and individual rights and freedoms. Themes and challenges to be incorporated throughout this topic -

the role of discretion in the criminal justice system issues of compliance and non-compliance in regard to criminal law 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

THE NATURE OF CRIME THE CRIMINAL INVESTIGATION PROCESS THE CRIMINAL TRIAL PROCESS SENTENCING AND PUNISHMENT YOUNG OFFENDERS INTERNATIONAL CRIME THE NATURE OF CRIME Learn about: ● the meaning of crime ● the elements of a crime: ➔ actus reus ➔ men’s rea ● strict liability offences ● causation

Learn to: ● describe the nature of crime

Crime = an act committed or omission of duty, injurious to the public welfare, for which punishment is prescribed by law, imposed in a judicial proceeding usually bought in the name of the state -

The act must harm society as a whole, therefore is prosecuted by the state Law allows the state to take action against an accused, prosecuting them in the court of law

-

Criminal law = involves the public, offender tried by state, beyond a reasonable doubt (burden of proof) HARSHER

-

Civil law = commenced by individual affected (plaintiff) against the person responsible (defendant), the balance of possibilities (burden of proof) LESSER

-

Major statute in NSW: The Crimes Act 1990 (NSW) → most criminal law is a state law

-

Aim of criminal law is to protect the community and to provide a sanction

-

If the act is a crime then criminal proceedings follow → offender faces investigation by police and prosecution, a case heard in criminal courts which may result in conviction and punishment CIP + CTP + S/P CJS = International Crime + Young Offenders

CASE FOR THE MEANING OF CRIME = R V McNeil (2015) - Shaun McNeil, under the influence of alcohol allegedly made an unprovoked assault on 18 year old Daniel Christie, punching him in the head (coward punch) resulting in Daniel’s death - Intially McNeil was charged with maliciously inflicting grevious bodily harm, however, this was later upgraded to a charge of murder as a result of much media outcry on behalf of the society -

→ June 2015 cleared of murder but found guilty of manslaughter, max 10 years in jail 2014: the NSW State Premier announced a number of law reforms including mandatory sentencing for alcohol and drug fuelled offences

Sample case integration A crime is an act or failure to act which ultimately results in harm to society. A crime may include antisocial behaviour that carries penalties imposed by the state. The McNeil case demonstrates how the nature of what constitutes criminal behaviour can change overtime. The ‘coward punch’ allegedly thrown by McNeil led to the death of 18 year old Daniel Christie, sparking law reform to include murder charges for such offences, where previously these acts would carry charges of manslaughter. This also displays the power society has to influence law reform. Elements of crime -

For the prosecution to obtain a conviction, they must prove the existence of both elements of a crime to the requisite criminal standard of proof; accused is only guilty if they carried out the criminal act with a criminal state of mind

Actus Rea = “the guilty act” - The voluntary commission of an act or the voluntary omission of a duty that breaks that law -

The accused committed = physical evidence = testimony

Mens Rea = “the guilty mind” a.

refers to the mental state of the accused Person sufficiently intended to commit the crime Defendant understood what was happening

b. The conscious and willing mind was present in performing the crime c.

The degree of intention required to prove the crime can differ on three levels: ➔ Intention = highest level to prove, the specific desire to commit the crime. e.g. Murder ➔ Recklessness = intermediate level, a person could foresee the probability of harm but acted anyway ➔ Negligence = lowest level accused failed to see or care about the risk of their actions. e.g. Manslaughter

CASE FOR ELEMENTS OF CRIME = R V Dean (2013) - Nov 2011, Roger Dean was a registered nurse at the Quakers Hill Nursing Home → he had an addiction to prescription drugs and when he could not afford them he used his position in the -

nursing home to steal drugs When audit reported a quantity of drugs were missing, Dean became anxious and attempted to divert attention from the investigation by lighting a fire, which killed eleven elderly residents Dean plead guilty to eleven counts of murder and eight counts of causing grevious bodily harm → judge commented on dean’s ‘reckless indifference’ towards the residents of the nursing home, as due to their vulnerability and old age it would’ve been difficult for them to evacuate the building, therefore it is likely that Dean would have understood that his actions had potentially life threatening consequences

-

2015 appeal → three supreme court judges dismissed the claim unanimously on the grounds that Dean knew that there was a high probability that the nursing home residents would die Sample case integration Mens rea demonstrates the intention to commit a crime. In the case of R V Dean (2013), Dean planned to burn a section of the nursing home to distract from a crime he earlier committed. This high level of premeditation and ‘reckless indifference’ towards others was reflected in the severe penalty of eleven life sentences he received Actus reas refers to the guilty act. In R V Dean (2013) the offender stole prescription drugs and later lit a fire which resulted in the death of eleven people. Strict liability offences -

No men’s rea needs to be proved, only actus rea → act alone is sufficient

-

Minor in nature. e.g. Speeding → only needs to be proved the speed limit was broken, state of mind doesn’t matter

-

Can only be successfully defended if the accused can prove the actual act didn’t occur

CASE FOR STRICT LIABILITY OFFENCES = R V Wayne Alfred Carr (2017) - Wayne Alfred Carr faced the Local Court for breaching the Commonwealth Electoral Act 1918 (Cth) when he failed to vote in the 2016 Federal election → Mr Carr received a penalty notice from the Canadian Electoral Commission for his failure to vote, however disputed the penalty

on the basis that:

-

➔ He is a 63 year old Aboriginal man, who’s race was not recognised in the constitution. He believed that the government was deliberately creating policies to destroy the identity of Aborgiinal people. The AEC responded that Mr Carr’s reasons did not present a valid and sufficient reason for his failure to vote

Sample case integration To be convicted of a criminal offence, the prosecutor must prove that the defendant had both the intention to commit the crime, mens rea, and had actually performed the criminal act, actus rea. However, there are some strict liability offences that the law deems inexcusable, and only require actus reas to be proved, such as traffic offences or failing to vote in government elections. In the case of R V Wayne Alfred Carr (2017), Carr, a 63 year old Aboriginal man, stated political and religious reasons for not participating in the 2016 Federal election. Failure to vote without a valid reason constitutes a strict liability offence under the Commonwealth Electoral Act 1918 (Cth) , and therefore Carr was found guilty Causation -

Proving that there is sufficient causal link between the actions of the accused and the result

-

The act committed must have caused the specific injury complained of → substantial/operative cause of crime = produced an effect

-

Example: proving murder is that the actions of the accused person ‘caused the death charged’ Circumstances that cause death even though there were other contributing factors: ➔ Ordinary natural events = leaving assaulted person unconscious in a snowstorm and they die; guilty of murder or manslaughter as death should’ve been foreseen in this circumstance ➔ People must take victims as they find them = hitting someone on the head and they died, partly due to thin skull; guilty of murder or manslaughter

-

Example: if someone is stabbed and died on the operating table, the act of stabbing caused the person to die rather than the fault of the doctor → causation link

CASE FOR CAUSATION = R V Munter (2009) - Munter punched a 66 year old man to the ground, and then kicked him in the chest. The man then died of a cardiac arrest - Although there was no intention to murder Mr Proctor, his death was caused directly by the unlawful assault of Munter, who was convicted of manslaughter Sample case integration A crime is committed when there is a direct or causal link between someone’s actions and harm to another party. In the case of R V Munter (2009), Munter punched Mr Proctor, a 66 year old man, to the ground, followed by kicking him in the chest, which led to the victim going into cardiac arrest and dying as a result. Although Munter had no intention to murder Mr Proctor, the causal link is established at the

point of the attack; it was the impact of the assault which caused the cardiac arrest to occur. Therefore, the judge found Munter guilty of manslaughter.

Learn about: ● categories of crime including: ➔ offences against the person ➔ offences against the sovereign ➔ economic offences (property/white collar/computer) ➔ drug offences ➔ driving offences ➔ public order offences ➔ preliminary crimes (attempts and conspiracy)

Learn to: ● recognise the different categories of crime

RUNS ON A WIDE SPECTRUM/SCOPE LEGISLATION Crimes Act 1900 (NSW) - primary act of parliament in NSW setting out crimes in 16 parts, including all the categories Offences against the person = harming other people (murder, sexual assault, assault) -

Murder → Section 12 of the Crimes Act 1900 (NSW) A person commits murder if he/she causes the death of another person a. Intending to cause the death of any person; or b. With reckless indifference to the probability of causing the death of any person; or

-

c. Intending to cause serious harm to any person Homicide: unlawful killing of another; varying degrees of mens rea; causation must be proved ➔ 1. Murder - deliverate intention to kill, most serious offence (Ivan Milat) ➔ 2. Manslaughter - voluntary, involuntary, constructive, differs due to intent, ‘One Punch’; acting in negligence or recklessness → no intention to kill but actions led to harm Section 15 of the Crimes Act a. Except if a law expressly provides otherwise, an unlawful homocide that is not under section 12, murder shall be taken to be manslaughter b. A person who commits manslaughter is guilty of an offence punishable, on conviction, by imprisonment of 20 years ➔ 3. Infanticide - death of a baby under 12 months at the mother’s hands ➔ 4. Death by reckless driving

CASE FOR MURDER = R V Whybrow 1951 - wired up soap dish in an attempt to electrocute his wife; found guilty of attempted murder

CASE FOR SEXUAL ASSAULT = R V AEM, R V Kem, R V MM (2002) - Three men lured two 16 year old girls into their home, forcibly detaining them and sexually assaulting them over several hours, as well as threatening them with knives - When the crime was committed, the highest penalty was aggravated sexual assault, with 20 years imprisonment → despite this, the men were sentenced to only 5-6 years imprisonment each. The Crown appealed and the men received 13-14 years each -

There was public outcry on sexual assault laws after this case, as the public perceived laws to be too lenient and comprismising the rights of the victim and society → The NSW introduced the crime of sexual assault under S61 of the Crimes Act 199 (NSW), accompanying a maximum penalty of life imprisonment

CASE FOR MANSLAUGHTER= R V Newbury and Jones (1977) - The accused deliberately dropped a slab of concrete from a bridge, killing a train guard - Although the accused had no intention of killing anyone, the court held this was involuntary manslaughter

Offences against the sovereign = aims to disrupt/harm the governing bodies of a country, political crimes → Part 2 of the Crimes Act 1900 (NSW) and s80 of the Criminal Code 1995 (Cth) -

Treason: commission of acts aimed at bringing down the gov/head of state

-

Sedition: incitement of hatred and/or violence against a gov/head of state Espiongae, illegal demonstrations, trepass on gov land, terrorism Punishable by up to 25 years in NSW and life (Cth laws)

CASE FOR SEDITION = R V Sharkey (1949) - Sharkey was General Secretary of the Canadian Communist Party, and in 1949, claimed in a newspaper that if the Soviet Union invaded Canada, the workers of Canada would welcome it → he also emphasised that workers should use force to prevent the fascists stopping the communists gaining power -

He was charged with attempting to incite the overthrow of the government and found guilty of sedition → he appealed to the HC that he had been speaking hypothetically, however, the HC judged that he breached the Crimes Act 1900 (NSW) with his intentionally seditious comments

Economic offences = against people’s property or finances -

Crimes against property: damage or removal of other people’s property.e.g. Theft, larceny (unlawful taking of another person’s property), break and enter, robbery While collar crimes: crimes against property carried out by business people in relation to money ➔ Embezzlement - stealing money from a business over a period of time from workplace

➔ Tax evasion - attempt to avoid paying full amount of taxes by concealing income/assets ➔ Insider trading - illegally trading on share market for own advantage using confidential information Computer crimes - hacking/unauthorized access using technology.e.g identity theft, internet fraud

-

(10 years), false identity to gain money over the internet

CASE FOR CRIMES AGAINST PROPERTY = Krste Kovacevski V R (2018) - Krste Kovacevski, a man in his seventies, had been through a bitter divorce from his wife in 2015. In the property settlement, the Federal Circuit court had order Mr Kovacevski to leave his home and transfer the title to his ex-wife → rather than complying with this order, he set fire to it, destroying the entire house -

He maintained that as the owner of the house, he could not be guilty of an act against the property → however, under section 195 of the Crimes Act 1900 (NSW), he was convicted of intentionally destroying property, and was sentenced to 2 years imprisonment

Sample case integration Part 4D of the Crimes Act 1900 (NSW) has provisions for crimes against property. The act outlaws the destruction or damage to property. In the case of Krste Kovacevski V R (2018), the defendant was found guilty of intentionally destroying property after he set his house on fire. He was given a 2 year custodial sentence. Drug offences = the Drug Misuse and Trafficking Act 1985 (NSW) -

Possession: enough drugs for personal use only → penalties such as fines, drug rehab

-

Trafficking: having a quantity of drugs deemed greater than which a person could use for themself → lengthy jail time

-

Cultivation, manufacture, importation → severe penalties and incarceration

-

Customs Act 1901 prohibits the importation of particular drugs

Driving offences = summary or regulating offences -

Speeding, not wearing seatbelt → however can be more serious such as negligent and reckless driving, drink driving

-

Road Transport Safety and Traffic Management Act 1999 (NSW) Crimes Act 1900 (Cth)

Public order offences = acts which occur in a public place and are seen as offensive or disruptive to society → Summary Offences Act 1988 (NSW) and Part 6A of the Crimes Act -

Generally minor → offensive conduct, obstructing traffic, indecent exposure

-

Affray: threatening to use violence, causing a person present to fear for safety Riot: 12 or more using or threatening to use unlawful violence for a common purpose

Preliminary crimes = having the intention to do so is enough; trying to commit an act or plan to do so, regardless if it is successfully committed or not - Attempt: offence where principal crime was attempted but failed or prevented despite intention -

Conspiracy: when two or more people agree prior to commit a crime In most cases punishment for preliminary crimes are equal to carrying out the crime itself

Learn about: ● Summary and indictable offences ● parties to crime including principal in the first degree, principal in the second degree, accessory before the fact, accessory after the fact

Learn to: ● Define summary and indictable offences

Summary offences = minor offences heard and decided by a magistrate in a local court, sitting without a jury → shoplifting, offensive behaviour, speeding

Indictable offences = serious criminal offences that may be heard by a judge and jury → murder, sexual assault, malicious wounding

CASE FOR SUMMARY AND INDICTABLE OFFENCES = R V Dawson (2014) - In July 2013, James Dawson embarked on a one man crime spree that endangered the lives of both the public and the police. It began when he stole a car, then filling it up with petrol without paying for it → he then sparked a police pursuit for speeding, police abuse, failing to pull over -

when colliding with another vehicle, threatening the police with a knife and more He was on parole, and pleaded guilty to four charges and was sentenced to a collective term of nine and a half years in prison

Sample case integration Summary offences are crimes which are seen as less serious, such as shoplifting and minor traffic infringements. They are heard in a local court by a magistrate, and common sentences include fines, good behaviour bonds and jail sentences of up to two years. Indictable offences are serious crimes such as murder and armed robbery, carrying more severe penalties. In the Case of R V Dawson (2014), Dawson was found guilty of having committed a number of summary offences, such as speeding, however, these were overshadowed by a string of indictable offences, including the aggravated assault of a police officer. Dawson received a nine and a half year jail sentence. Parties to crime = the people who have participated in committing a criminal offence - Principal in the first degree: the actual perpetrator of the crime, the person who committed the crime.e.g. Armed robber who takes the money

-

Principal in the second degree: person present or who has assisted the principal in the first degree

-

in committing the offence.e.g. Armed robber holding security back/driving car away Accessory before the fact: person who helped plan the offence but wasn’t present when it occurred.e.g. The boss behind the plan

-

Accessory after the fact: person who helped the principals after the crime had been committed.e.g. Person hiding the money or criminals after the crime

CASE FOR PARTIES TO A CRIME = R V Stanford, Marcus (2016) - Vincen...