Nature of Crime

Meaning of Crime
Crime - an act or omission of a duty which results in harm to society and is punishable by the state
● act or an omission of duty which breaks the law.
● act or omission is seen as harmful to society / the whole community
● the act is punishable by the State
● the State takes the accused to court where the offence must be proved by the Prosecution

Elements of Crime
Actus Reus - the physical act of carrying out the crime (latin for ‘guilty act’)
● prosecution must prove that the accused actually commited the crime
● must be voluntary and can include an omission or failure to act
Mens Rea - the accused person intended (to some degree) to commit the crime (latin for ‘guilty mind’)
● Intention - a clear, malicious or wilful intention to commit the crime (highest)
● Recklessness - when the accused was aware that their action could lead to a crime being
committed, but chose to take that course of action anyway (intermediate)
● Criminal negligence - where the accused fails to foresee the risk when they should have and
consequently allows the avoidable danger to occur (lowest) - needs duty of care
Causation - action and mindset that caused a crime to occur

Strict Liability Offences

Strict Liability Offences - where the prosecution only needs to prove that the accused carried out the act
and is not required to show that the accused intended to commit the crime
● Often get a fine on the spot or a fine sent to you
● Lower level of proof required to achieve a criminal conviction, therefore, limiting the accused’s
rights in the criminal process
● Generally restricted to minor offences
→ e.g traffic offences or breaches of regulations
● Assist the legal system in reducing cases that go to court
● Must prove Actus Reus, not Mens Rea
Categories of Crime
Offences Against the Person
Homicide - Unlawful killing of another person (both deliberate and accidental acts of killing)
- Causation must be established between the actions of the accused and the death of the victim
Murder → deliberate killing of a person
→ punishable by life imprisonment
Prosecution must prove that at least one of these exists:
→ accused intended to deliberately kill or inflict bodily harm to the victim
→ act was done with foresight about the probability of death
→ act was done while committing or attempting to commit another serious crime
punishable by life or 25 years’ imprisonment

Manslaughter → killing of a person in a manner that is considered to be less intentional than murder
→ punishable by up to 25 years’ imprisonment
→ may be charged with manslaughter when it can’t be proved they intended to kill
the victim to the degree required for murder
There are three types of manslaughter:
→ voluntary manslaughter - the killing of a person where the accused intended to kill
or was reckless about killing someone but there were mitigating circumstances
(circumstances that make the offence less severe)
→ involuntary manslaughter - the killing of a person where the death occurred
because the accused acted in a reckless or negligent way without intending to kill
→ constructive manslaughter - the killing of a person while the accused was carrying
out another dangerous or unlawful act

Infanticide → Death of a baby under the age of 12 months at the hands of its mother
→ Crimes Act 1900 requires the court to take into account the state of mind of the
mother at the time
→ if the accused is found to be suffering from post-natal depression when she killed
her baby, it can be seen as a mitigating circumstance

Dangerous → occurs when a person drives in an unsafe and reckless way and in doing so causes
driving the death of another human being
causing death → e.g under influence of alcohol or drugs, excessive speed
→ maximum penalty of 10 years in prison
→ However, if the offence is aggravated by certain circumstances the penalty
can be as much as 14 years’ imprisonment

Assault
● most common form of crime against the person
● Causing physical harm to another person
● Common assault - threatening to cause physical harm to another person
● Direct act in which force is applied to another person’s body unlawfully and without their
consent
● Punishable by up to five years imprisonment or seven years depending on location of assault
Sexual Offences
● Sexual assault - someone is forced into sexual intercourse against their will and without their
consent
○ Occurs to both genders but more common against women
● Indecent assault - accused commits an assault and ‘act of indecency’ in the presence of another
person without their consent
● Aggravated sexual assault in company - sexual assault performed with another person or people
present together with aggravating circumstances
○ Punishable by life imprisonment

Offences Against the Sovereign

Treason An attempt or manifest intention to levy war against the state, assist the enemy or
cause harm to or the death of a head of state

Sedition Promoting discontent, hatred or contempt against a government or leader of the state
through slanderous use of lanuage

Economic Offences
Property Three types of crimes against property
→ Larceny (stealing) - intentionally taking another person’s property without consent
and without intention of returning it
→ Robbery - when property is taken directly from a victim, usually forcefully
→ Break and Enter - when a person enters a home with intent to commit an offence

White Collar General term given to various non-violent crimes associated with business people or
professionals.
→ embezzlement - when a person steals money from a business over a period of time
while they are employed at that workplace
→ tax evasion - attempt to avoid paying the full amount of taxes due by concealing or
underestimating a person’s or business's income or assets
→ insider trading - when a person illegally trades on the share market to their own
advantage using confidential information

Computer Various crimes related to hacking and unauthorised access or modification of data
→ fraud - deceitful or dishonest conduct carried out for personal gain
→ most serious computer crimes incur a penalty of up to 10 years’ imprisonment

Drug Offences
● Acts involving prohibited or restricted drugs that focus on movement of drugs themselves
● E.g growing, selling or use of the drug
● Possession of prohibited drug - drug must be in accused’s custody/control with their knowledge
● Use of a prohibited drug - intentional consumption of drug by any means
○ doesn’t apply to use in a medically supervised injecting centre
 ● Cultivation - growth or cultivation of a prohibited plant (e.g cannabis)
● Supply of a prohibited drug - offering or agreeing to supply, whether or not the actual drug or
money really changed hands
Driving Offences
● Police enforce and process many driving offences through imposition of on-the-spot fines
● E.g exceeding speed limit, driving without a license or while disqualified, ignoring road signs,
driving above the legal blood alcohol limit of 0.05
Public Order Offences
● Relate to acts that are deemed to disturb the public order in some way
● E.g disturbance in or in sight of a public area
● Obscene, indecent or threatening language/behaviour in public, possessing a knife in a public
place. Obstructing traffic, damaging public fountains or protected places
● Usually incurs a fine or other lesser penalty
● More serious crimes include affrays and riots
○ Affray - using/threatening to use violence on another that would cause a reasonable
person present at the scene to fear for their safety
○ Riot - 12 or more people using or threatening to use unlawful violence for a common
purpose (similar to affray)
Preliminary Crimes
Attempt An offence where a principal crime was attempted but failed or was prevented for
some reason despite the intention to complete it
→ punishable by the same penalty as if the crime had taken place

Conspiracy When two or more people plot to commit a crime together

→ complete where an agreement is reached between the parties

Summary & Indictable Offences

Summary Offence - less severe offence that is heard and sentenced by a magistrate in a local court
- Incurs lesser penalties than indictable offences but may still have serious consequences
Indictable Offence - a more severe offence that is heard and sentenced by a judge in a District Court or
tried before a judge and jury

Summary Offence Indictable Offence

Less serious offences tried by a magistrate in the More serious offence (e.g murder, rape) tried by a
Local Court judge and jury

Judgement and punishment determined by a Judgement determined by a jury

magistrate Punishment determined by the judge

Charge is laid by a police prosecutor or a Charge brought by public prosecutor working for
 government officer the state

Punishment is usually less severe, ranging from a Punishment is usually imprisonment or a hefty
good behaviour bond or community service to a fine
jail sentence of up to two years (5 years for more
than one offence)

Many summary offences are listed in the

Summary Offences Act 1988 (NSW)

Parties to a Crime
Principal in the ● Generally the person who takes the most responsibility in carrying out
first degree the crime
● Receives the highest sentence

Principal in the ● Present and assists in carrying out the criminal act
second degree ● E.g person waiting in the car for a getaway, may not be armed

Accessory before ● Assists in the planning and preparation of a criminal offence before it
the fact occurs

Accessory after ● Person helps the offender after they have committed the crime
the fact ● May not have had knowledge of the offence before it was committed
● Don’t need to know at the time of assisting the offender that a crime has
been committed
● Aware afterwards and assist them

Factors Affecting Criminal Behaviour

Criminology - scientific study of crime and criminal behaviour
Factor Description

Economic → people from disadvantaged backgrounds are more likely to commit crimes
→ e.g poor education and lack of skills are closely related to economic factors

Social → influence a person’s attitude towards crime

→ includes family situation, personal relationships, social groups
→ influence a person’s attitudes and views of acceptable behaviour

Psychological → often relevant to the commission of an offence

→ forms of mental illness affecting a person’s behaviour
 → relevant to the accused’s state of mind and raised by either prosecution or
defence during a criminal trial
→ relevant in sentencing and particular sentencing programs such as drug
rehabilitation programs which focus on the accused’s psychological
rehabilitation

Political → offences against the sovereign or the state

→ public order offences (e.g riots)
→ terrorism-related offences are some of the most extreme political offences

Self-Interest → drug offences committed for profit

→ property offences for profit
→ offences against the person for revenge
→ white collar crimes driven by greed and self-interest rather than by
underlying socioeconomic or political factors

Genetic →genetic studies and theories surrounding criminal behaviour have not been
proven
→ DNA of prisoners and investigated to see if certain genes are more likely than
those without them to commit crimes

Crime Prevention
Crime Prevention
● Various strategies that are implemented by individuals, communities, businesses, ngo’s and all
levels of government
● Targets various social and environmental factors that increase the risk of crime, disorder and
victimisation
● Utilised to increase compliance with the law
● Might be through modifying the physical environment where crime occurs OR through
addressing the factors that contribute to an individual’s offending behaviour
Situational Crime Prevention
● Involves creating an environment where it’s difficult for people to break the criminal law
● Achieved by making the act of committing a crime physically difficult or by increasing the
likelihood of detection and enforcement by law enforcement agencies
● Work by increasing
○ Increasing the effort involved in offending
○ Increasing the risk associated with offending
○ Decreasing the rewards that come with offending
● Examples include: increased presence of police officers, signage indicating certain behaviour
Role of CCTV cameras - Judgment
● Installation of CCTV is a prominent example of situational crime that has had a moderate effect
● Potential in detecting crimes and useful in prosecutions and investigation however less effective
in deterring the amount of crime
● Should be used in conjunction with other methods of prevention
Benefits in increasing compliance
● Over 896 pieces of footage were used by police last year in investigations and prosecutions,
down from 908 the previous year
○ Daily Telegraph “Sydney’s crime beamed live to police using city’s 99 CCTV cameras”
● In 2014, CCTV operators in Sydney alerted police 1084 times, and up to 134 times in the previous
○ Daily Telegraph “Sydney’s crime beamed live to police using city’s 99 CCTV cameras”
Limitations in increasing compliance
● Personal violence are mostly about alcohol and drugs and CCTV cameras won’t deter them
during the event as they may be highly emotional
○ Research shows that these systems are least effective at deterring the crimes that we are
most fearful of - interpersonal violence or crimes involving drugs or alcohol (Source 2)
○ Sydney Morning Herald “The real cost of CCTV might stop you smiling” (2012)
● Evidence suggests that the amount of crimes detected isn’t proportional with the amount of
money that goes into it
○ Gold Coast study found they don’t prevent any type of offending but assist in detection
○ Dr Robert Carr reviewed several major worldwide studies (a process called
‘meta-analysis’), concluding that CCTV cameras “reduced crime in very few examples.”
(Sydney Criminal Lawyers “Effect of CCTV on Crime”)

Social Crime Prevention

● Commonly directed at trying to influence the underlying social and economic causes of crime, as
well as offender motivation
● E.g improving education, housing, health needs and social cohesion are used
● Addresses the CAUSES of offending behaviour and focus on development, building communities
and early intervention
● Slower to achieve compliance but are effective in the long-term
● Programs are not available in all geographic locations and are difficult to attract funding

Peter Mackay teaches kids in Bourke to drive for free as part of the justice reinvestment initiative
● Along with getting their license
● HIGHLY SUCCESSFUL
Benefits
● Provides assistance to those with a socio-economic disadvantage that have no license and leave
a pathway to employment for many
● Targets the case of the offence (not having a license) and overrepresentation of Aboriginals in
prison
● Aboriginals make up ⅓ of the people jailed in australia for driving offences
 ○ ABC Four Corners Extract (2016)
● 310 people obtained their learners and provisional license between 2015 and 2019
● Led 10 people directly to employment
● 35% reduction in number of people proceeded against for driving offences from 2015-2017
○ NSW Bureau of Crime Statistics and research
Limitations
● Impact community safety with unsafe driving
● Programs are not available in all geographic locations
○ Funding prohibits expansions in more locations
○ Only geographically available in Bourke

Criminal Investigation Process

Police Powers
The NSW Police have broad powers which enable them to investigate offences and enforce the criminal
law. These powers are regulated under:
● The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
● The Crimes (Forensic Procedures) Act 2000 (NSW)
● NSW Police Policies, Procedures and Legislation

The NSW Police are responsible for investigating criminal acts and are able to gather evidence during the
criminal investigation process. Their powers include:
● Ability to collect evidence
● Use surveillance devices
● Search individuals and their property
● Apply for warrants; arrest; detain; interrogate and charge; decide on police bail

Important Points
● Community expects police to have the necessary tools they need to effectively enforce law
● Law reform occurs regularly to enhance the ability of police to investigate crime
● Police have discretion as to how they implement their powers which impacts delivery of justice
○ Regulated by legislation and exercise of powers shouldn’t be arbitrary
○ Often controversial because of interference with civil liberties

Reporting Crime
Reporting - 1st step in criminal investigation process
● Offender keeps offending as nobody has apprehended them
● No legal punishment
● Either police have to detect it or someone needs to report it
Discretion - the authority to make choices about how the law is applied
● Victim of crime has discretion and can decide whether to report it or not

Reasons to not report Types of Crimes Reported

● Too much effort ● Physical assault - 52%

● Might’ve already settled dispute ● Face-to-face threatened assault - 39%
● Might’ve committed a crime ● Non face-to-face threatened assault - 32%
● Embarrassed (e.g sexual assault, domestic ● Robbery - 45%
violence) ● Break in - 72%
● May not trust the police ● Motor Vehicle Theft - 94%
● Consequences (e.g the offender is the ○ Want to claim Insurance
money-maker of the family) ● Malicious Property damage - 49%

Offences that have the highest rate of reporting are attached to the highest amounts of money. (e.g
want to claim back insurance)

Investigating Crime
Gathering Evidence
All evidence must be lawfully collected under the rules of evidence contained in the Evidence Act 1995
(NSW). If evidence is obtained illegally, then it may not be admissible at trial. Police investigating crimes
may collect:
● Witness accounts, documents, fingerprints, photographs, DNA samples, physical evidence, video
surveillance footage or electronic information

Use of Technology - DNA Evidence

DNA evidence is genetic material such as hair, blood and saliva that can be used to link a suspect to a
crime scene or criminal offence.
● Jurors find DNA evidence very convincing
○ Criminology found that juries were 23 times more likely to deliver a guilty verdict in
homicide cases where DNA evidence was presented
○ 33 times more likely to convict in sexual assault cases where DNA evidence is presented
Police Powers
Crimes (Forensic Procedures) Act 2000 (NSW) outlines the rules for carrying out forensic procedures and
sets out the powers of police and rights of suspects when taking DNA samples.
There are two types of forensic procedure:
Non-Intimate ● Police can ask the offender to provide a mouth swab, hair sample, nail
clippings and can observe the body without looking at private parts
● Adults may give consent but if they refuse, a senior police officer can order
that samples be taken
 ● If the person is aged 10-18, a magistrate or senior police officer must give
authorisation

Intimate ● Occur when police are investigate indictable offences

● Blood samples, pubic hairs, examination of private parts and dental impression
● Adults can consent but if consent is not given, a Magistrate’s order is required
● Children 10-18 can only undergo invasive procedures with a court order

Rights of Suspects
● Suspect must be afford reasonable privacy
● Reasonable suspicion and reasonable assumption that it will provide evidence
● Procedure shouldn’t be carried out in the presence of a person of opposite sex
● Procedure mustn’t involve more visual inspection than is required
● Reasonable force may be used to enable a forensic procedure to be carried out and to prevent
loss, destruction or contamination of any sample

Groups With Extra Protection

A child, incapable person or Aboriginal and Torres Strait Islander must, if reasonably practicable, have an
interview friend (e.g parent or guardian) and/or legal representative present while the forensic
procedure is being carried out.
(Children have special protections - magistrate to approve)

Advantages and disadvantages

Advantages Disadvantages

● Substantially effective tool ● Lack of DNA evidence

● Provides solid evidence that someone ● White coat affect - jurors believe dna
was at the scene of the crime evidence have a strong indication of guilt
● There had been indication of intimate where we have sometimes seen that DNA
connection with someone else (e.g sexual evidence has been mishandled
assault cases) ● CSI effect
● Used to solve cold cases ● Rights to Presumption of Innocence is
destroyed

National Criminal Investigation DNA Database

If you’re not convicted, the evidence will be destroyed and if you are, the evidence will go into the
Database and be held indefinitely. It can be used to match the offender to previous or future cases.

Use of Warrants - Search & Seizure

Warrant - a legal document issued by a magistrate or judge authorising an officer to perform a particular
act, such as make an arrest, conduct a search, seize property or use a phone tap
The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) gives police the power to search an
individual and their property. They are able to seize evidence that is relevant to the investigation.

If police don’t obtain a warrant, they will be receiving illegal evidence. The Evidence Act 1995 (NSW)
states that if material is collected illegally, the judge or magistrate won’t consider it.

● Need to have reasonable suspicion or evidence when applying for a search warrant
● Certain searches or seizures can’t be performed without a valid warrant
○ E.g NSW Police can use sniffer dogs without a warrant to search for illegal drugs at pubs
or clubs, public transport or certain public events but need a warrant for general
searches in any other public places
● NSW Police are required to have a valid warrant before entering and searching any premises,
residential or business without the consent of the owner
● Warrant states the reason for the premises being searched and identify what articles are being
search for
● Police must identify to the occupier the reason for the search and give a copy of the warrant to
the occupier
● Police may videotape the search to use later in court or to guard against claims for improper
procedures/planting of evidence
● Judicial oversights ensures that special police powers are used only when appropriate
● Emergency warrants can be obtained over the phone when necessary in an investigation or an
officer is unable to see a magistrate or judge in the person

Terrorism Attacks
The Terrorism (Police Powers) Act 2022 gives police special powers to prevent or respond to suspected
terrorist acts. A covert search warrant issued by the Supreme Court gives police the power to search
premises without the knowledge of the owner. Preventative detention orders made by the Supreme
Court give police the power to detain a person, without charging them, for up to 14 days. (Crimes that
are extremely detrimental towards community may lead to loss of rights)

Arrest and Charge

Arrest - action of seizing a person by a lawful authority to take them into custody
● Done something unlawful that is a danger to society
● Type of offence, danger towards community, risk

The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) regulates the use of the arrest power
by police.
● Suspects are citizens who have not yet been convicted by a court of law and have presumption
of innocence
● Arrest in a public space can be humiliating and demeaning
● Arrest may involve the use of force
○ Must be proportionate to the crime
 ○ If force is unreasonable or violent, tell a lawyer as it will be relevant in trial
○ E.g tasers used in arrest 95 y.o with walker is not proportional
● Citizens have a right to retain their liberty and only be detained with a good reason
● The International Covenant on Civil and Political Rights provides freedom from arbitrary
detention as a civil right
○ Australia has signed and ratified this treaty
● Arrest is a last resort power
● You have right to contact a lawyer and a right to silence
○ You just have to give your name and address

Police can hold you in custody for 6 hours but it must be reasonable and proportionate to the force used
against them.

For suspects under the age of 18 years, a responsible adult must be present when they speak to the
police, otherwise the evidence will not be admissible in the trial.

Summons

Warrants

Bail or Remand

Detention and Interrogation

Criminal Trial Process