Legal Studies Notes - Crime part 1 PDF

Preview

Summary

summary notes to revise....

Description

HSC LEGAL STUDIES – Cambridge THE NATURE OF CRIME Important Legislation          

Crimes Amendment (Computer Offences) Act 2001 (NSW) Crimes Act 1900 (NSW) Copyright Amendment Act 2006 (Cth) Crimes Act 1914 (Cth) Criminal Code 1995 (Cth) Anti-Terrorism Act (No. 2) 2005 (Cth) Drug Misuse and Trafficking Act 1985 (NSW) Summary Offences Act 1988 (NSW) Customs Act 1901 (Cth) Road Transport (Safety and Traffic Management) Act 1999 (NSW) Significant Cases



R v Munter [2009] NSWSC 158

Definitions     

           

Crime: an act or omission committed against the community at large that is punishable by the state The state: a term used to refer to the government and the people that it governs Accused: the person or alleged offender that the criminal action is being taken against Prosecute: when the Crown or state take action against the offender in a court of law The Crown: the state party who commences a criminal action in a court of law against the offender. In NSW, it is the DPP. If the alleged crime is against a federal criminal law then the action is usually commenced by the Commonwealth DPP Beyond reasonable doubt: the standard of proof required in a criminal case for a person to be found guilty Actus reus: a Latin term meaning ‘guilty act’ that refers to the physical act of carrying out a crime Mens rea: a Latin term meaning ‘guilty mind’ meaning that the accused intended to commit the crime knowing their actions were wrong Recklessness: when the accused was aware that their action could lead to a crime being committed, but choose to take that course of action anyway Criminal negligence: where the accused fails to foresee the risk where they should have and so allows the avoidable danger to manifest Causation: the link between the behaviour of the accused and the result (i.e. that the behaviour of the accused actually caused the criminal act alleged Strict liability offence: an offence where the mens rea does not need to be proved; only the actus reus Trafficking: dealing or trading in something illegal, particularly drugs Homicide: the act of killing a human being Murder: the deliberate killing of a person Manslaughter: the killing of a person in a manner that is considered to be less intentional than murder Voluntary manslaughter: the killing of a person where the accused did intend or was reckless about killing someone but there are mitigating circumstances

THE MEANING OF CRIME o o o o

o o

Crime includes any act of omission which results in harm to society at large and is punishable by the State, including the court system and state or Commonwealth bodies Many countries and societies have different views about what kinds of acts society needs to be protected from and which acts should be considered criminal Most crimes are the result of moral and ethical judgements by society about an individual’s behaviour When a person commits a crime, it is deemed to be committed against all society, as well as any victim of the act. The criminal act is seen as an attack on the standards expected by society, so it is the responsibility of all to punish the accused For this reason, criminal cases are brought by the state (acting on behalf of society), even though they are also attempting to redress an injustice committed against the victim The government, courts and other statutory bodies are constantly reviewing legislation to ensure that it meets the expectations of the community and is as relevant as possible to our rapidly developing and changing society

CRIMINAL LAW o o o o o o

Concerned with the protection of society: a crime is an offence against society as a whole, and one which is punishable by the state Criminal actions can include crimes against a person, state and or against property Law provides for the state to take legal action against the accused, to prosecute the offender in a court of law to obtain some form of sanction Police and/or DPP decide to prosecute the offender in court. They are known as the state or Crown Crown must prove beyond reasonable doubt so if there is any doubt as to the guilt of the defendant, a not guilty verdict must be reached Aims to protect the community and provide a sanction if offender is found guilty by a court of law

ELEMENTS OF CRIME o o o

o

o

Before a criminal act can be brought to trial, the police and prosecutors need to prove that the elements of the particular offence are present The fundamental elements: Actus reus - ‘guilty act’ and refers to the physical act of carrying out the crime - Must be a voluntary act but can also include an omission or failure to act, such as criminal negligence Mens rea - ‘guilty mind’ refers to the metal state of the accused, the accused intended to commit the crime - The defendant understood what was happening when the act was committed - If the Crown or police cannot prove that the offender acted intentionally, fraudulently, maliciously, negligently, recklessly or wilfully, the charge will not be proved - Main levels of mens rea:  Intention: a clear, malicious or wilful intention to commit the crime  Recklessness: the accused was aware that their action could lead to a crime being committed but chose to take that risk anyway  Criminal negligence: accused fails to foresee the risk where they should have and so allows the avoidable danger to manifest resulting in harm or death of another person that the accused had a duty to protect. Example R v Thomas Sam [2009] Causation

-

Proving that there is sufficient causal link between the actions of the accused and the result Example R v Munter [2009] – dispute regarding water restrictions where Mr Proctor feel to the ground after the punch and Mr Munter kicked him the midsection with moderate force. Shortly after, Mr Proctor died from a heart attack as a result of the blows inflicted upon him by Mr Munter. Although there was no apparent intention to murder Mr Proctor, his death was caused by the unlawful assault of the accused. Mr Munter convicted of manslaughter and jailed for 3yrs and 3mths

STRICT LIABILITY OFFENCES o o o

Offence where the prosecution only needs to prove that the accused carried out the act, not required to prove the intention of the crime Traffic offences, breaches of regulations, selling alcohol to under 18 In some cases, a defence to strict liability may be available if the accused can prove the act was an ‘honest and reasonable mistake’

CATEGORIES OF CRIME o o

Categories will affect the way an offence is investigated, prosecuted or punished: Type of offence - Offences against the person – involve some form of harm or injury to an individual  Homicide – unlawful killing of another person  Murder – accused deliberately intended to kill the victim  Manslaughter – cannot be proved that the accused intended to kill  Voluntary manslaughter – person kills with intent but there are mitigating circumstances  Involuntary manslaughter – acted in reckless or negligent way but without intention to kill. Example DPP v Newbury and Jones [1977]  Constructive manslaughter – killing of a person while the accused was carrying out another dangerous or unlawful act. Manslaughter was ‘constructed’ from the other unlawful act  Infanticide – applies to the death of a baby under the age of 12mths at the hands of its mother. Crimes Act 1900 (NSW) requires court to take into account the state of the mother i.e. post natal depression  Dangerous driving causing death – enacted to deal with deaths as a result of motor vehicle accidents  Assault – most common form of crime against another person, causing physical harm to another person and of threatening to cause physical harm to another person (known as common assault). Aggravated assault (more serious charge) occurs when the assailant assaults a person using an object or if the accused attacks a police officer when the officer is carrying out their duties  Sexual offences - Lack of consent is central to the crime of sexual assault and is defined in detail in the Crimes Act 1900 (NSW). It states that a person is not consenting where they are:  Substantially intoxicated by drugs and alcohol; lack the capacity to consent  Intimidated or coerced into the act  If the accused is abusing their position of trust or authority over the victim - Offences against the sovereign  The crime of treason was imported to Australian law from the UK  Enacted in NSW under Part 2 of the Crimes Act 1900 (NSW)  In the Commonwealth under the Crimes Act 1914 (Cth)

-

-

-

-

-

 S80.1 of the Criminal Code 1995 (Cth)  Under the NSW Crimes Act, the 1351 Act is expressly continued in force.  Treason involves any attempt or manifest intention to levy war against the state, assist the enemy, or cause harm to or death of the Governor General, prime minister or the Queen of Australia. Economic offences  Crimes against property  Larceny: when one or more persons intentionally takes another person’s property without consent or without intention of returning it  Robbery: when property is taken directly from the victim, usually forcefully  Break and enter: occurs when a person or persons enters a room or building with the intention of committing an offence  White Collar Crime  Various non-violent crimes associated with business people or professionals including: embezzlement, tax evasion and insider trading  Computer offences  Hacking and unauthorised access or modification of data Drug Offences  Acts involving prohibited or restricted drugs; crimes associated with drug abuse or addiction, such as larceny, robbery, break and enter or prostitution  Focus on the movement of drugs themselves including: growing, selling and use of the drug  Drug Misuse and Trafficking Act 1985 (NSW)  Summary Offences Act 1988 (NSW)  Customs Act 1901 (Cth) Driving offences  Commonly committed offences in NSW  Under the Road Transport Act 1999 (NSW) and Crimes Act 19000 (NSW)  Most common traffic offences:  Exceeding the speed limit  Driving without licence or while disqualified  Ignoring road signs  Arriving above the legal blood alcohol limit of 0.05 Public order offences  Summary Offences Act 1988 (NSW)  Under Part 6A of the Crimes Act 1900 (NSW)  Most common public offences include:  Obscene, indecent or threatening language or behaviour in public  Possessing a knife in a public place without reasonable excuse  Obstructing traffic or ignoring a reasonable police direction to ‘move on’  Damaging public fountains and protected places Preliminary Crimes  Offences that precede the commission of a crime or where the crime has not been completed for some reason  Attempt to commit a crime will still be considered an offence and will usually be punished by the same penalty as if the crime had taken place. Section 344 of the Crimes Act 1900 (NSW)  Example, R v Whybrow (1951) 35 CAR 141

SUMMARY AND INDICTABLE OFFENCES

o

Summary offences: - less severe offences that are heard and sentenced by a magistrate in the Local Court - punishment determined by magistrate - charge is usually laid by police officer or government officer - punishment usually less severe such as a fine, good behaviour bond or community service

o

Indictable offences: - more severe offences that are heard and sentenced by a judge in District Court or tried before a judge and jury - judgement determined by jury, punishment determined by judge - charge is brought by a public prosecutor working for the state - punishment is usually imprisonment of hefty fine

PARTIES TO A CRIME o o o o

Principal in the first degree- person who actually commits the criminal act Principal in second degree- person who was present at the crime and assisted or encouraged the principal offender to perform the offence Accessory before the fact- helped the principal to plan or carry out the crime Accessory after the act- someone who has assisted the principal after the actual act is committed

FACTORS AFFECTING CRIMINAL BEHAVIOUR o o o

o

o o

Psychological factors: will often be relevant to the commission of an offence, with many forms of mental illness affecting a person’s behaviour Social factors: influencing a person’s attitude towards crime may include their family situation or personal relationships; social groups or the environment the person has been raised Economic factors: most substantial reasons for committing of crimes in NSW; people from disadvantaged backgrounds, poor education and lack of skills. Offenders may view criminal acts with a financial benefit, such as larceny or robbery Political factors: offences against the sovereign or offences against the state are likely to have some political factors influencing their commission. Public order offences such as riots may have politically motivating factors, especially in situations where public protests become politically intense. Genetic theories Self-interest

CRIME PREVENTION o o

Situational crime prevention: an aim to make it more difficult for criminals to carry out a crime and therefore stop a crime before it is committed. Social crime prevention: attempts to address the underlying social factors that may lead to criminal behaviour

THE CRIMINAL INVESTIGATION PROCESS Important Legislation    

Bail Act 1978 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Significant Cases



Darby v Director of Public Prosecutions [2004] NSWCA 431

Definitions                 

Investigate: for the police, this means carrying our research to discover evidence and examine the facts surrounding an alleged criminal incident Arrest: to seize a person by legal authority and take them into custody Interrogate: to formally question a suspect in relation to an alleged crime Evidence: information used to support facts in a legal investigation or admissible as testimony in court Search and seizure: the power to search a person or their possessions and seize and detain items that are discovered Reasonable force: such force as is reasonably necessary for the officer to perform the function; the officer must honestly believe that it was justified and not excessive Warrant: a legal document issued by magistrate authorising an officer to perform a particular act, for example make an arrest, conduct a search, seize property or use a phone tap Charge: formal accusation of a person of committing a criminal offence In situ: a Latin term meaning ‘in the place’; used to describe the place in which a piece of evidence is found or situated Inadmissible evidence: evidence that cannot be considered by a judge or jury in court, for example, evidence that has been compromised or was obtained by unlawful means DNA evidence: genetic material (such as hair, blood or saliva) that can be used to link a suspect with a crime scene or criminal offence Interrogation: the act or process of questioning a suspect by invest2igating officers Caution: a statement issued by police to a suspect when they are detained to inform them of their rights Summons: a legal document that states when and where a person must appear in court and if they are accused, the charge to which they must answer Bail: the temporary release of an accused person awaiting trial, sometimes on particular conditions such as lodgement of sum of money as a guarantee Surety: in bail, where another person agrees to provide a financial guarantee that the accused will return to the court for trial in exchange for the accused’s temporary release Remand: a period spent in custody awaiting trial at a later date

POLICE POWERS o o

The responsibility for enforcing criminal laws and ensuring they are adhered to lies with the police Police form part of the executive arm of government and so are separate from the legislature, who makes the laws and the courts who enforce legal decisions and judgements

o o o o o o o o

o o o

Police are responsible for the prevention and detection of crime and for the maintenance of public order, and ensuring that all criminal laws are observed Role in the CIP is to investigate crimes, make arrests, interrogate suspects and gather evidence against the accused Present evidence to court on behalf of the State, directly or through a Prosecutor Challenge is to balance the extent of powers required by police against the rights of ordinary citizens In NSW, crimes will be investigated by the NSW Police Force for state offence or AFP for commonwealth offences NSW Police Force is awarded special legal powers under statute to enable them to carry out their duties effectively Powers are contained in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Some of the main police powers include the power to: - Detain and question suspects - Search property and seize evidence (search and seizure) - Use reasonable force if necessary to carry out their duties - Use particular technologies to assist an investigation, such as phone taps, CCTV and DNA samples - Arrest and interrogate suspects - Recommend whether bail should be granted Sometimes seek a warrant from a court to be able to use a particular power – this is one type of check that is put in place in order to ensure special powers are used appropriately and not abused NSW Police Force follows the Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence) which sets out the rights of suspects and the manner in which investigations should be carried out Police expected to treat all member of community fairly

REPORTING CRIME o o o o

Citizens have the important role of reporting crime Community programs established to encourage people to report criminal activity to promote a sense of community participation in solving crimes In 2009, NSW Crime Stoppers received 47247 contacts from public, resulting in 298 arrests and 1376 charges laid Reluctant to report a crime: - Reluctance to become involved or have to appear as a witness - Fear of the consequences if the crime is reported - Inability to report the crime’ - The dispute has already been settled with the offender - Perceived time or burden of reporting a crime - Domestic violence or sexual assault usually go unreported due to the shame and embarrassment victims feel and their unwillingness to go through the ordeal of reliving the experience while being questioned in front of a judge and jury

INVESTIGATING CRIME o

o

Once police receive information, they will make a decision about whether to pursue an investigation or take no further action based on the severity of the offence, the likelihood of success, the available resources or priorities Gathering Evidence: - Gather evidence to support a charge in court at a later date - Taking witness statements

-

o

o

o

Evidence is documented in situ with video and photography and meticulously recorded and handled to maintain the integrity of the evidence - Evidence that has been contaminated or compromised is known as inadmissible evidence - All evidence must be obtained in a proper and lawful manner as required by the Evidence Act 1995 (NSW), if not, it is inadmissible - Strict procedures need to be followed and in some situations a court warrant may be required before police can search for or seize evidence - Types of evidence:  Oral testimony of the accused, police and witnesses  Objects, weapons  Documents  Fingerprints, DNA sampling  Tape recordings, CCTV Use of technology - Needs to be extremely reliable and if there is any doubt about its reliability it risks being admissible in court, or resulting in a wrongful conviction - DNA evidence is been helpful in gaining some difficult convictions in both current and cold cases - Widely used in Australia and ...