Module-1-Crime PDF

Preview

Summary

Useful notes for crime ...

Description

CRIME 1. The Nature of Crime • The Meaning of Crime - Define: Act or omission against the state resulting in harm to society for which punishment is prescribed by the courts - Most crimes are created by moral/ethical judgements placed on a person’s behaviour by society - All society is the victim • The Elements of Crime i) Mens Rea - Define: The guilty mind - i.e. The person’a intention to commit a crime - The prosecution must prove that the acused was aware that their actions would at least probably result in a crime being committed - Reckless Indifference: A person performs an act/omission not caring about the consequences of their actions Hyam v DPP (1974) ! Hyam put a rag soaked in fuel through a woman's letter box and lit it. In the resulting fire two children were killed. Hyam was charged with murder. In defence she claimed that she only intended to frighten the woman, not to kill anyone. The trial judge directed the jury that if Hyam forsaw that death or very serious injury was a probable consequence of her action, it was proper to assert that Hyam 'intended' the action, and could therefore be guilty of murder. The jury therefore brought in a verdict of guilty of murder. ii) Actus Reus - Define: The voluntary act/omission - i.e. The physical performance or conduct element of a criminal act R v Jiminez (1992) ! Jiminez fell asleep at the wheel after only driving for ±1 hour and killed another driver travelling in the opposite direction. He was found guilty of culpable driving and manslaughter. He appealed to the HC which held that there was no actus reus as his falling asleep was an involuntary act. Ryan v The Queen (1967) ! Ryan help up a service station with a loaded gun and pointed it at the attendant with his finger on the trigger. He claimed that a movemnet by the attendant caused an involuntary reflex to pull the trigger. he was found guilty of murder. He appealed to the HC who dismissed the appeal on the grounds that all his other acts were voluntary and therefore actus reus was proven. • Strict liability offences - Only require the prosecution to prove actus reus - Usually summary offences - A.k.a Regulatory offences or quasi-criminal offences"

• Causation - Define: The relationship between cause and effect - The prosecution must prove that there is a link between the act and the harm caused by it - The crime must be the substantial cause of the crime R v Blaue (1975) ! A woman was attacked with a knife by Blaue after she refused to have sex with him and suffered severe wounds She refused surgery/blood transfusion in hospital as a Jehovah’s Witness. She dies and Blaue was charged with murder. He claimed there was no causation but the court held that there was causation as the woman would not have recieved wounds without Blaue attacking her. • 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) Offences against the person a. Homicide Define: The unlawful killing of a person i) Murder - Severity of murder means it is punishable with the severest penalties - Difficult to prove as it must be proven that: • There was a deliberate act to kill • There was a deliberate act to cause serious harm, during which death occured • There was a reckless indifference to human life, resulting in death • A death occurred during the commission of a serious crime - Maximum penalty in NSW is ‘penal servitude for life’ or life imprisonmnet R v Hallett ! Hallett inflicted grievous bodily harm on the victim and left him unconscious on a beach and the tide came in and he drowned. Hallett was charged for murder because his grievous bodily harm led to the man’s murder ii) Manslaughter - Any other unexplained death is known as manslaughter - The accused usually has a defence for their actions - Voluntary Manslaughter: There the accused uses a defence ! Provocation - Involuntary Manslaughter: There is an act of criminal negligence R v Sams (i.e. Death occurs but the accused did not have the mental intent to cause the death)

iii)Infanticide - Mother causing a death of a child within its first 12 months of life - Crimes Act 1900 (NSW) ! requires the court to take into account the mental state of the mother when the homicide occurs - Infanticide is often used as a defence ! accused mother claim they had a mental illness/post-natal depression iv) Death by reckless driving - Created because of the increasing number of deaths resulting form motor vehicle accidents - That the driver did not intend to kill is of less significance than the fact that they were speeding/drink driving etc. - Up to 14 years imprisonment - Judge must determine a causal relationship between the actions of the accused and the resulting death ! directly related b. Assault - Define: Causing or threatening to cause physical harm to another person - Modern law makes no distinction between the threat (previously assault) and violence (previously battery) ! The threat can cause mental harm - May be considered legal if a person consents to the violence (e.g. boxers) - May be acceptable when in self-defence - Aggravated Assault includes the use of a dangerous weapon, the assault of a police officer carrying out their duties or where the intention is to cause very serious harm a. Child Abuse b. Assault at schools ! up to 7 years imprisonment c. Assault occasioning grievous bodily harm ! Maximum of 25 years Barton v. Armstrong (1975) ! Barton was intimidated by Armstrong (threatened that he and his friends would murder Barton and family unless Barton approved the purchase of Armstrong’s shared in a company they had both been associated with at an inflated price. The threats, and the fact that Barton believed them to be true, were enough for Barton to launch successful civil law proceedings against Armstrong to have the contract overturned, citing duress. c. Sexual Assault - Define: Sexual contact with a person without consent (including with a spouse) - Consent age for hetero/homosexual sex is 16 (NSW) - Person over 16 has sexual intercourse with a person under 16 they can be charged with sexual assault ! statutory rape - Consent is irrelevant when it is given mistakenly ! given under duress, victim misunderstood that they were consenting for sex - Considered an offence to cause a person to become drugged/drunk for the purpose of having sex with them

Offences against the sovereign - Offences against the government a. Sedition - Define: Act of encouraging hatred/contempt of the manarch, constitution, government - Attempts to revolt against the government or insight hatred in others to do so b. Treason - Define: Breach of allegiance to your country in the form of causing harm to the monarch/government - Individual attempts to betray their country - E.g. the selling of national secrets - Punishable by up to 25 years - life imprisonment - Recent passing of very harsh anti-terrorism laws indicates that treason is taken very seriously by the Australian government - The main Commonwealth laws relevant to terrorism are the AntiTerrorism Act 2004 (Cwlth) and the Anti- Terrorism Act (No. 2) 2005 (Cwlth). R v. Sharkey (1949) ! In 1949, while he was General Secretary of the Communist Party of Australia, Sharkey stated in a newspaper interview that if the Soviet Union invaded Australia, the workers of Australia would welcome it. He was also quoted as saying thatAustralian workers should use force to ensure fascists did not stop the communists from gaining power. Sharkey was charged with attempting to incite the overthrow of the government, and found guilty of sedition. Sharkey appealed the decision to the High Court, claiming he was speaking only hypothetically. The court ruled that the Crimes Act 1900 had been breached, as Sharkey’s comments were seditious. Economic Offences - Define: Offences involving crimes that damage or result in the loss of another person’s property a. Property Crime i) Larceny/Theft - Define: The taking away of another person’s property without their consent - To be proven, it must be shown that the accused had intended to steal the property - Borrowing (even without consent) is NOT larceny - The law does make certain provisions for specific crimes ! person charged with taking a car for the purpose of a joyride cannot use the defence that they were merely borrowing the car and would return it

R v Potisk (1973) ! The South Australian police charged Mr. Potisk with larceny after a bank teller accidentally gave him too much money. He had asked the bank teller to exchange US$1480 into Australian dollars. Potisk should have received $1233.23 but the teller miscalculated the amount and instead gave him $2895.17 Potisk took the money and later admitted to police that he had expected about $1000. He was charged with larceny but at his trial the judge, who was uncertain if Potisk had in fact committed larceny, ‘reserved a point’ for consideration by the Supreme Court. The Supreme Court ruled that the teller’s mistake had not been induced by Potisk and although Potisk had been dishonest in not informing the teller of the mistake, there was no larceny involved. The judge informed the jury that they must find Potisk not guilty of the charges. ii) Breaking and Entering - Most common for of property crime - Define: When a person forces entry into a building/part of a building in order to commit an offence iii)Robbery - Most serious form of economic crime - Define: Accused taking a person’s property directly from that person or from within the vicinity of the person - Often considered a crime against the persons ! involves using the threat of violence - When the violence/threat involves a weapon then the charge is escalated to armed robbery b. White Collar Crime - Commited by professional people in the context of business i) Tax Evasion - Most common form of White-collar crime - Can range from fraudulently completing a tax return form to more elaborate schemes involving millions of $ - The ATO is responsible for enforcing dozens of laws relating to taxation, such as Income Tax Assessment Act 1997 (Cth), and ensuring that the correct taxes are paid ii) Insider Trading - Define: person with special knowledge of a company uses that knowledge to buy/sell shares - Considered illegal because it can give an unfair advantage to investors with special knowledge iii)Computer Crimes - On the increase as technology advances - E.g. Including money laundering, identity theft, scams, counterfeits and industrial espionage - The power and capacity of modern computer technology is continually increasing, driving the need for ongoing law reform

Drug Offences • Importation • Manufacture/Cultivation • Distribution, supply and trafficking • Possession and use - NSW Bureau of Crime Statistics and Research revealed there were ±27500 convictions from drug offences in NSW in 2008 - Strong argument by many that drug offences should be decriminalised ! drug addiction is a health issue rather than a crime Driving Offences - Most commonly committed offences in society - The Crimes Act 1900 (NSW), the Road Transport (Safety and Traffic Management) Act 1999 (NSW) and the Road Transport (General) Act 1999 (NSW), which largely replaced the Traffic Act 1909 (NSW), outline a range of offences relating to the use of motor vehicles - Most traffic offences are dealt with through the issuing of a fine and the adding of ±1 demerit point to licence - Drivers have the right to challenge the validity of a fine - Most driving offences are strict liability offences ! Actus reus must be proven but not Mens rea Public Order Offences - Define: Disrupt the activities of society - E.g. Indecent behaviour, offensive language, spitting, littering, offensive conduct while drunk, graffiti, prostitution - Give the best examples of the way society’s moral and ethical views influence that law - can be over-polices and have a disproportionate effect on young persons, ATSI, people from particular minority groups, socio-economically disadvantaged people Preliminary Crimes i) Attempts - The Crimes Act 1900 (NSW) states that attempting to commit a crime is the dame as succeeding to commit a crime (exception for attempted murder) - It can be difficult for the prosecution to gain a conviction for attempt, altough the closer the crime was to being committed, the easier it will prove

ii) Conspiracy - Define: Exists when two or more people agree to commit a criminal act - Charges of conspiracy can be brought even if the actual act that was being planned never took place - A conviction is hard to obtain as evidence is difficult to come by - Phone taps, photographs and other surveillance methods are often used in order to gain sufficient evidence - In conspiring to commit a crime, the agreement to act criminally is the actus reus while the planning demonstrates the mens rea to carry it out. • Summary and indictable offences

a. Summary Offences - Define: Less serious charge - These cases are heard by a magistrate in the local court without a jury - Brought on a charge called a summons and carry penalties of ≤2years b. Indictable Offences - Define: One that society considers to be very serious - E.g. Murder, Sexual Assault - There are more steps in the legal process, including a commital hearing (to ensure that there is enough evidence to warrant a trial) - If there is sufficient evidence then a trial with a judge and jury will occur - Brought on a charge called an indictment

- Can result in life imprisonment • Parties to a crime including principal in the first degree, principal in the second degree, accessory before the fact, accessory after the fact Scenario: A group of people conduct an armed robbery of a service station i) Principal in the First Degree - Define: The person who carries out the criminal act - A.K.A The Perpetrator The person holding the gun and threatening the attendant is the principal in the first degree ii) Principal in the Second Degree - Define: Person assists others in the commission of a crime - Present during the actual crime but is not the main participant - usually treated in the same way as the perpetrator in court (i.e. same sentence) - A.K.A The Accessory The person standing guard at the door iii)Accessory Before the Fact - Define: Person helps others commit a crime by helping the plan or prepare the criminal act - They are not present at the time the crime is conducted - Court may still impose the same penalty on this person as the others The person who may have gathered information about the location of the sage and the timing/frequency of the security guard’s visit iv) Accessory After the Fact - Define: Person who helps the criminals after the crime - Neither present during the crime, nor aware of it beforehand - The courts would give a lesser punishment that given to the others The person who may have helped the others elude the police or got them a new car • Factors affecting criminal behaviour - The study of criminal behaviour is known as criminology a. Genetic Factors - Largely discredited - The idea that there is a gene that dictates criminal behaviour ! now false b. Psychological Factors - Mental illness predisposes a person to commit crime b/c this illness affects their behaviour - With a true mental illness, a person is unable to tell the difference between right and wrong - These factors come into play when defending a person

c. Social Factors - Differential Association Theory ! Where a person has been brought up in a family where crime is the norm, they know no better and this is acceptable behaviour - The people with whom they associate are involved in crime and therefore may lead to their following in that way - Negative development of morals/values - Learned behaviour d. Economic Factors - Those that do not have as much in society or need money/goods may commit crime in order to gain these - May also be linked to a lack of education/low socio-economic background e. Political Factors - Because of a person’s political beliefs they may commit a crime - E.g Treason, Terrorism f. Self Interest - Crime committed simply for personal gain g. Addiction • Crime prevention: situational and social i) Situational - Measures are taken in the physical environment to try and combat crime occurring in the first place - E.g. Signage, CCTV cameras, video surveillance, tags on clothing, definite police presence, RBT, speed cameras ii) Social - Trying to modify individuals’ behaviour to stop crime happening in the first place - E.g. Police education of citizens, Youth citizen’s groups, Diversionary programs for youth, activities in place for something to do, further funding for education 2. Criminal investigation Process • Police Powers - The police enforce the law - Found in the Police Code of Practice for Crime - The police have the power to prevent and investigate crime - They have the power to arrest, search and seize, interrogate, detain and charge suspects a) Investigation: research the facts surrounding a criminal incident so as to gather evidence/examine facts - Have police discretion (whether or not to investigate) - Someone may report a crime and then police use discretion to decide whether they will investigate or may come across crime scene themselves

b) Arrest - Cannot arrest a person solely for questioning - Police have the power to arrest with/without a warrant - May arrest by: touching the person’s arm, by consent or by telling them they are under arrest - Police must show evidence that they are an officer, give name, place of duty, reasons for arrest, warning that a refusal of arrest is an offence in itself - Must caution arestee (right to silence) - Must consider if there is alternatives to arrest (caution, warning, infringement/penalty/court attendance notices, youth justice conferencing) - Person taken to nearest police station - Police may search a person if they suspect they have anything that would present danger, assist escape or provide evidence of an offence - Arrest must be executed with minimum force i. Warrant: court order, signed by a magistrate, permitting police to arrest someone (must have shown sufficient evidence as to why arrest is needed) • Go with a warrant when they have evidence to prove they need to arrest a person for the commission of a crime ii. Without Warrant • Only if police believe a person is about to, is in the middle of or has just committed a crime • Reporting crime - Police rely on members of the public to report crime - Police can also conduct their own criminal investigation or may implement their own prevention - e.g. RBT - Police have discretion when a crime is reported as to whether or not to investigate it - In Domestic Violence cases, there is a small onus on the police to investigate/seek AVOs

- Certain groups have been targeted by police in society e.g. youth, Aboriginals - Members of the public may not report due to fear, threats, embarrassment, do not want to be involved • Investigating crime: gathering evidence, use of technology, search and seizure, use of warrants i. Gathering Evidence - Establish a crime scene - To establish a crime scene, the police must suspect on reasonable grounds that: • Traffic Offence committed has resulted in the death or serious injury of a person • A serious indictable offence is/will/may have been committed on the premises • Evidence of the commission of a serious indictable offence committed elsewhere, may be on the premises

- Police have special powers at a crime scene: • Search • Inspect anything in the scene C • Conduct any examination/process • Open anything that is locked • Photograph • Record the crime scene • seize and detain all/part of anything that may provide evidence - Police may not establish a crime scene in the same premises more than once in any 24 hour period (unless a crime scene warrant is obtained) - To get a warrant: • If not already lawfully on the premises and need the power to enter them • They were initially on he crime scene but the 3 hours is running out - If the police are in a public place and there is a crime scene, they need not get a warrant (E.g. Bellevue Hill bikie stabbing) - Police may also gather evidence through questioning suspects/witnesses...