Core Module I:

Crime
The Nature of Crime:

Crime Definition: Any act or omission that results in harm to society at large and is
punishable by the state
• Omission: failure to act
• Act: physical or non-physical actions that could harm another individual in society
• Crime is defined differently within different societies, due to factors such as culture,
history, legal traditions, social attitudes, and religious beliefs
• Crimes are created by moral and ethical judgements placed on a person’s behaviour
by society; the accused has chosen to disregard when committing a crime impacting
society as a whole.
• All of society is the victim, not just the person who has had wrong done to them.
• Criminal law is concerned with the conduct of people that is forbidden by society. The
community will then seek to punish any person who breaks the criminal law; it will not
be left to the victim
• In NSW, the key legislation relevant to crime is the Crimes Act 1900 (NSW)
• Key Federal Legislation is Criminal Code Act 1995 (Cth)

• Actus Reus: guilty act

- This means the voluntary commission of an act or the voluntary omission of a
duty that breaks the law
- Not only must the prosecution prove intent, but it must also prove the
wrongful act.
- The most important features are:
§ Where the act or omission took place
§ That it was done by the accused person
§ That it was voluntary

• Mens Rea: guilty mind

- Refers to the mental state of the convicted
§ This means a person is guilty of a crime only if he or she carried out
the criminal act and intended to do so
- In a murder case the prosecution must prove that the accused person
intended to kill or cause serious injury
- If they fail to do this there will be no conviction

• Prosecution (onus of proof) must introduce evidence to prove both elements beyond
reasonable doubt (standard of proof) to convict the/an accused
• Each case has different and dependant elements that are relevant to each crime
- For murder: intent to kill, intent to inflict Bodily Grievance Harm (BGH) or
reckless behaviour to human life must be proven
• Mens rea is proved if the person committing the criminal act did so with one of the
following states of mind:
1. The intention or specific desire to commit the act or omit the duty
 2. Recklessness (person could see risk, but chose to act with the risk anyway)
3. Negligence (accused person failed to exercise the degree of care, skill or
foresight that a reasonable person would have exercised in the same
circumstances)

CASE STUDY: R v Thomas Sam, R v Manju Sam, 2009 (NSW Supreme Court)
• The victim (a nine-month-old girl) passed away, after her parents failed to provide
conventional medical treatment for her serious eczema
• The court found that the risks related to the young girl’s condition would have been
obvious to any reasonable person, and that as educated adults, her parents should
have recognised these risks and sought medical treatment
• Because they failed to do so, the parents were found guilty of manslaughter and
imprisoned
o This is an example of ‘criminal negligence.’

For a crime to be proved, causation must be shown. In addition to proving mens rea and
actus reus, the prosecution must also establish that there is a sufficient CASUAL LINK
between:
• Actions of the accused; and
• Result or consequences of these actions

The principles of causation mainly apply to murder and manslaughter charges. In these
cases, if the accused had mens rea and actus reus to commit a murder but the victim’s
death resulted from other means, then murder is not proved

• Less serious crimes = restricted to minor offences à therefore no court attendance is

needed
§ E.g. traffic offences, graffiti, etc
• In some cases, there can be a defence to strict liability offence by appearing in court
and proving the act was an ‘honest and reasonable mistake’
• Advantage = easy to enforce, treat people equally
• However, the main penalty is a fine à ‘on the spot fines’ à issues pass over
• Strict liability offences only require the actus reus to be proved and mens rea does
not need to be proven.
• Because strict liability offences dramatically lower the level of proof required to
achieve a criminal conviction, and so lessen the accused’s rights in the criminal trial
process, they are generally restricted to minor offences.

CASE STUDY: R v Munter (2009)

• The accused, Todd Munter, punched and then kicked a 66-year-old victim
following a dispute over water restrictions
• The victim later died of a heart attack as a direct result of the blows inflicted by the
accused
• The accused was convicted of manslaughter and imprisoned • Causation can be
established due to the link between the assault and the death of the victim.
The criminal law has a far-reaching scope or range. This means it covers a wide variety of
behaviour, ranging from breaking the speed limit to murder. Criminal behaviour is split into
categories depending on the type of act or omission that is performed.
• In NSW, the Crimes Act 1900 NSW is divided into parts relating to the main types of
offences

Crimes against the person are acts or omissions which harm other people. Clear Intent to
cause harm or injury. Covered mostly in Crimes Act 1900 (NSW). These include:
• Murder
o Most serious homicide offence which can carry maximum penalty of life
imprisonment
o To prove in court there was a murder, the prosecution must show that at least
one of the following exists:
§ The accused intended to deliberately kill the victim
§ The accused set out to inflict serious bodily harm, which resulted in
death
§ The act was done with reckless indifference to another human life;
that is, the accused did not care that the act might end a human
being’s life
§ The act was done while committing or attempting to commit another
serious crime punishable by life or 25 years imprisonment.

CASE STUDY: Boughey v The Queen (1986)

• In Boughey v The Queen (1986) 161 CLR 10, the accused, a doctor, was charged
with the death of his wife.
• He claimed she had died accidentally while they were engaging in autoerotic
asphyxiation.
• The court held that it was still murder, as he had been reckless to the substantial
and real chance that she could suffocate.

• Manslaughter
o Differs from murder since it is based on the intention behind the accused’s
actions
o Maximum 25 years penalty
o Voluntary, involuntary, and constructive

• Homicide:
o Unlawful act of killing another person
o Covers murder, manslaughter, infanticide, and death by reckless driving
o Causation must be established

• Infanticide:
o Death of baby under 1 year by biological mother
o Court considers post-natal depression or anxiety
 • Assault: an act committed intentionally or recklessly which involves another person
experiencing immediate and unlawful violence.
o Common Assault:
§ No physical harm
§ Threaten gestures, emails, phone calls for example
o Physical Assault:
§ Force is applied to another person’s body unlawfully without consent
o Sexual Assault:
§ Forcing someone in sexual intercourse against their will, no consent
§ Also considers when consent is withdrawn during intercourse and
sexual acts
o Aggravated Sexual Assault in company:
§ Most serious sexual offence in NSW; equivalent to murder charge
§ Sexual assault that maims, wounds or disfigures the victim, or
involves a physically, mentally or incapacitated victim
o Indecent Assault:
§ Committing “an act of indecency” towards or in the presence of a
person without consent
§ E.g. inappropriate touching someone
§ Another type of sexual offence

These are acts or omissions which aim to disrupt or harm the governing bodies of a country.
They are political crimes and are uncommon in Australia. They include the following:
• Spying • Crimes to do with terrorism
• Treason • Trespass on government land to
• Illegal demonstrations prevent the government from doing
• Sedition something

• Sedition is an old law from Britain and was introduced to punish conduct or speeches
which incited rebellion against the monarch
• Treason is betraying your country
• Terrorism occurs to reduce the strength of the state (idea that the state can’t protect
you, inciting fear)

Economic offences involve acts or omissions against people’s property or finances. It is the
largest area of criminal law because it encompasses the most common type of crime.
• Results in a person or people losing or gaining property or sums of money
o Crimes against property: acts or omissions which damage or remove other
people’s property, i.e. Larceny (stealing), Robbery (forceful stealing), Break
and enter (burglary)
o White collar crime: money related crimes against property carried out by
people in business, for example embezzlement, tax evasion and insider
trading
o Computer offences: various crimes related to hacking and unauthorised
access or modification of data
Offences that involve the possession, distribution, manufacture, importation and supply/sale
of prohibited illicit substances
• Penalties:
o Rehabilitation
o Requirement to comply with a good behaviour bond
o Suppliers face harsher punishment à long jail sentences
• NSW legislation that relates to drug offences:
o NSW: Drug Misuse and Trafficking Act 1985
o Summary Offences Act 1988 (Cth)
o Federal: Customs Act 1901

Most driving offences are summary or regulatory offences, i.e. speeding or not wearing a
seatbelt (strict liability offences). However, driving offences can also be more serious:
• Negligent and reckless driving
• Included in the Crimes Act 1900 NSW and the Road Transport Act 2013 NSW
• Most common driving/traffic offences:
o Exceeding the speed limit
o Driving without a license
o Ignoring road signs
o Driving above the legal BAC
• Traffic offences are regulated by the NSW Roads and Maritime Services (RMS)

Relate to acts that are deemed to disturb the public order in some way, such as a
disturbance in or in sight of a public order. They are trivial and do not involve a victim. These
include:
• Offensive conduct • Riot and affray
• Obstructing traffic • Explosives and firearms
• Indecent Exposure • Public Drunkenness

• Summary Offences Act 1988 (NSW)

• Part 3A of Crimes Act 1900 (NSW)

Affray: use or threat to use violence which would cause a reasonable person in the vicinity to
fear for their own safety.
Riot: an affray, but bigger, involving 12 or more people threatening or using unlawful
violence for a common purpose.

The attempt of committing the act or omission, or the planning behind it. It does not matter
whether the crime is successfully committed or not. Having the intention to do so is enough.
• Attempts: If a crime is attempted but not successfully committed then the crime of the
attempt applies
• Conspiracy: This occurs where 2 or more people agree to do an unlawful act or to do
a lawful act by unlawful means
Definition: are considered less serious and usually incur lesser penalties and are heard in a
Local Court
• Judgement and punishment are determined by a magistrate appointed by the Local
Court
• Appellate jurisdiction of District or Supreme Court can hear summary offences
• Charge is laid out by a member of the police force or a separate government officer
• Relevant Legislation: Summary Offences Act 1988 (NSW)

Definition: are more serious offences and are generally heard by a judge and a jury in the
District Court, to a larger consequence
• Jury determines judgement and judge determines punishment
• Charge is brought by a Public Prosecutor, who is a representative on behalf of the
state
• Punishment is more sever, like imprisonment and/or a hefty fine
• Relevant Legislation: Crimes Act 1900 NSW

Any person who has been involved in any way in committing a crime may become a ‘party to
the crime’.

• The perpetrator of the crime/ principal offender

• The person who commits the act and carries out the actus reus
• Will likely receive the highest sentence

• The person who was present at the time – assisted/encouraged the principal offender
• May be given a lesser sentence depending on the circumstances (no guarantee)

• Someone who helped the principal to plan or carry out the crime
• Helped in planning and/or preparation before the actual act was carried out

• Someone who has assisted the principal after the act is committed
- e.g. covering up the evidence
- or driving the getaway vehicle

Key Statistics:
• Males more likely to commit crime than females, at least when serious crimes are
concerned at a ratio 2:1
• Crime is a preoccupation of the young whether female or male
• Relevant to the commission of an offence à with many forms of mental illness
affecting a person’s behaviour
• Important during time of arrest or charge or relevant to the accused’s state of mind
and raised by either prosecution or defence during or throughout the criminal trial
• Relevant during sentencing and sentencing programs, like drug rehabilitation
programs
o Focus is on accused’s psychological rehabilitation

• Influencing a person’s attitude to crime may include their family situation or personal
relationships
• Social groups the accused associates with will often influence a person’s attitude and
views of acceptable behaviour à e.g. areas of drug or public order offences
• In other areas, environment a person is raised in could influence their adult behaviour
o E.g. person brought up in an abusive home may experience certain traumas,
which can be replayed in their adult life unless person gets effective treatment

• People from disadvantaged backgrounds are more likely to commit crimes and front
courts than any other group
o States from AIC show 1/3 males and ½ of female offenders receive welfare or
government payments as their main source of income in their life
• Poor education and lack of skills
• Menial or poorly paid jobs may increase the likelihood of committing an offence

• Some social scientists have suggested that criminal tendencies were passed down
from the parents, that the child inherited a genetic disposition to commit crime.

• Offences against the sovereign or against the state are likely to have some political
influencing
• Terrorism-related offences are sone of the most extreme political offences that can
be committed
o Where the use of violence or imitation will usually have explicit political aims
• Public Order Offences, such as riots, may also have political factors, especially when
public political protests become intense

• Usually plays a role in committing different crimes

• Most crimes have a degree of self-interest with ‘other’ factors as a primary driver
• For example:
o Drug offences for profit or use
o Property offences for profit
o Offences against the person for revenge
Understanding the factors and motivations behind crime is also important in crime
prevention. As society and crime evolve and criminals become more sophisticated, other
methods of crime prevention need to be employed.

● Situational crime prevention attempts to make it more difficult for criminals to attempt
or succeed in their criminal activities.
● Aim is to make the location where the crime occurs riskier and more difficult or less
rewarding to the offender
● However, one aspect is it can have a negative impact
● It can move people and criminal behaviour to a different place or different person to
commit the crime
● Increases the risk for perpetrators of being caught
● Mens rea is there, as the situation was made much harder, but they still committed
the crime
● Includes CCTV cameras, Security personnel, new designs into streetscapes,
Security checks and Community participation

• Social Crime Prevention aims to address the underlying social factors that may lead
to criminal behaviour.
• These factors include:
o Poor home environment and parenting
o Social and economic disadvantaged
o Poor school attendance
o Early contact with the police and other authorities

● If the social factors can be identified, then programs can be developed to redress the
factors and prevent people from committing crimes. Governments have introduced a
number of programs targeted at reducing social factors that lead to crime, including
the introduction of:
o Counselling
o PCYC
o The Drug Court of NSW
o Employment
The Criminal Investigation Process:
The criminal investigation process refers to the series of steps that begins when a crime is
reported and ends when a suspect is eventually charged depending on the crime committed.

Discretion: The freedom a person has, to decide what should be done in a particular
situation.
• Important during the investigation, and can have a significant impact on the following:
o Issues regarding compliance and non-compliance in regard to criminal law
o Extent to which the law balances the rights of victims, those accused of crime
and society
• Police exercise discretion when: Interacting with individuals, Investigating crime and
Enforcing the law

• Laws are ineffective without means of enforcing them

• Police powers enforce criminal laws and ensure they are adhered to
• Police form a part of the executive arm of the government, separate from the
judiciary and the legislature
• Primary goal of prevention and detection, and for the maintenance of public order.
• The role of the police in the criminal investigative system
o Investigate crimes
o Make necessary arrests
o Interrogate suspects
o Gather evidence against the accused for the court
• Police present the evidence for judgement to a court on behalf of the state, either
directly or through the prosecutor

Police powers are outlined in Law Enforcement (Powers and Responsibilities) Act 2002
(LEPRA) and the Police Powers Handbook.

Police may occasionally be given greater powers to combat threats or perceived threats to
the community. Some examples of main police powers include the following:
• Detain and question suspects
• Search property and seize evidence
• Use reasonable force, if necessary, to carry out their duties
• Use technologies to assist in obtaining evidence for investigation against the accused
• Arrest and Interrogate suspects
• Recommend whether bail should be granted

NSW Police also follows the Code of Practice for CRIME (Custody, Rights, Investigation,
Management and Evidence)
• Sets out the rights of suspects and the way investigations should be carried out so
that it is appropriate
• NSW Police is also overseen by the NSW Ombudsman and the Police Integrity
Commission
 • Expected to treat all members of the community in a fair and ethical manner
regardless of age, sex, religious or ethnic background, or the severity of the crime
they are suspected of having committed - where a suspect believes their rights have
been abused, there are complaints procedures available.

Police Powers in LEPRA Description

Arrest The process of police officially detaining someone prior to
charge Reasons for arrest:
• Reasonable suspicion of crime
• Witnessed the crime
• Have an arrest warrant
Warrants Legal document issued by the courts authoring police to do
something (arrest, enter home)
Stop, Search and Seize Police are legally allowed to stop, search and seize items off
a person over 18 with reasonable suspicion to investigate a
crime, if person being searched gives consent or police have
a warrant
• Only if the suspect has drugs or weapons or stolen
property
• Only if suspect has something this was or is intended
for a serious crime
Emergency Powers In emergency situations, police have extra powers to control
the situation E.g. 2014 Lindt Cafe Siege
Warnings, Cautions and Power to give warnings, cautions and fines if caught
Fines committing a minor offence EG. speeding

• Ration Decendi: Rationale for the decision. In other words, it’s the legal rule by the
judge to determine the final decision
• Obiter Dicta: Ratio Decendi set precedent and are binding, obiter dicta not so much.
If it is not crucial judges use obiter dicta

Citizens have an important role to play in the criminal justice system by reporting crime à
exercise individual discretion
• Once crime has been reported or information has been received by the police à the
police are given the power and responsibility for the prevention and detection of
crime
o Under LEPRA to protect society, enforce the law and maintain public order
• Some of the factors which may prevent a crime being reported through discretion
include:
o Reluctance to become involved or to appear as a witness in the investigation
o Fear of consequences if the crime is reported
o Inability to report crime
o The dispute has already been settled with the offender, such as a brawl or
theft by a person known to the victim
o Perceived time or administrative burden of reporting a crime
o Belief that reporting does not directly lead to an arrest or conviction
 • Some crimes are widely reported than others – e.g property and economic offences
o To recover property or because the victim cannot claim their insurance unless
a police report is filed
• Crimes such as domestic violence or sexual assault are more underreported for
different reasons
o Estimated that up to 85% of sexual assaults in Australia are not reported
o Due to the shame or embarrassment victims might feel
o Or unwillingness to go through the ordeal of receiving the experience while
being questioned in front of a judge or jury with offender present at the trial

Once police have received information about a crime, a decision will be made about whether
to pursue an investigation or take no further actions. These decisions will be based on:
• Severity of the offence
• Likelihood of success
• Available resources
• Priority
Note: Not all crimes are investigated and prosecuted, as resources are often directed
to more serious or high priority crimes

When a crime is committed, it is the role of the police to gather evidence to further the
investigation and to support a charge in a court to a later date.

The Evidence Act 1995 (NSW) states evidence must be obtained quickly and lawfully so it
is not compromised or interfered with, and witnesses don’t forget what they heard or saw
• If evidence is comprised, interfered with or does not follow the procedures outlined in
the legislation, it becomes inadmissible to use in court for the trial.

The law imposes certain limits on the way police gather evidence and the types of evidence
that can be use, to help ensure the collection of evidence is legitimate and does not interfere
with the rights of ordinary citizens.

Use of • Police sometimes use technology to gather and assess evidence

Technology • New technology needs to be extremely reliable since it can risk
becoming:
o Inadmissible in court
o Resulting in a wrongful conviction
• Law has difficulty to keep up with changes to allow modern
technology to be incorporated as a means of gathering evidence
• Phone taps, video surveillance etc.
• In recent years DNA evidence has been vital in convicting
offenders charged with a range of crimes
• The Crimes (Forensic Procedures) Act 2000 NSW allows the
police with the authorization of a court to take forensic samples
from a suspect such as blood.
 Search and • Police have the power to search people, their belongings/premises
seizure • Take away property that is illegally held or is to be used in
evidence
• LEPRA contains several procedures for police to follow for
searches:
o Preservation of the person’s privacy and dignity during
search
o Informing them of the reason why the search is necessary
o Asking for their cooperation
Use of • Warrant: Legal document issued by a magistrate or judge which
warrants authorises a police officer to perform a particular act
• Judicial oversight helps ensure that those special police
powers are used appropriately and provides an additional
layer of protection for citizens against misuse of police
powers.
• Without a warrant, the police would be prevented from obtaining
this evidence, as privacy law and the law of confidentiality would
prohibit it’s release.

Three ways that the police can bring an alleged offender to court after an investigation.
‘Alleged’ à only suspected of having committed the crime – not yet proved

Summons • Summons: A court attendance notice, that is given to a

person to attend court at a certain time.
• A summons is usually used for minor offences such as traffic
offences
• A summons is an official legal document which commands
the person to whom it is addressed to appear at a particular
court on a particular day
Warrants • Differ in administration and between states
• A search warrant is a written order from a judicial officer
which gives police to power to enter and search a premises
• Without a warrant, police need consent from the homeowner
Arrest and charge • After being arrested the person should be informed of the
reasons for arrest
• The arrested person may be held for up to 4 hours but the
police can make an application to extend this
• While in custody the suspect generally has a right to remain
silent
• The police will usually conduct a record of interview
• Police may use reasonable force if required
• Police must issue a person with a caution once they are
detained and before they are interrogated. The caution
informs the person of their right to silence and the maximum
period of detention
• Before the end of the detention period, police must either
charge the suspect with an offence or release them
unconditionally
• If charged and kept in custody, the accused must be brought
before a court as soon as practicable for a hearing
Outlined in the Bail Act 1978. Bail Act 2014 (amendment)
• Bail: temporary release of an accused person awaiting trial, sometimes on particular
conditions. Granted by the police or a judge

Is an agreement to attend court at a later date to answer the charge. If bail is granted the
person is free to go after complying.
• If the police refuse bail the person must be taken before a court to determine if bail
should be granted or denied. If they are again denied, they are held in remand.
• A criticism of the Bail Act 1978 was that too many people were being held in remand
with waiting times too long
• This led the government to amend the Bail Act, requiring the accused to show cause
(reasons as to why they should not be put into jail on remand)
• Studies by the NSW Bureau of Crime Statistics reveal a marked increase in the
number of juveniles on remand since this amendment was passed 2009
• 36% of criminals are in remand currently

Remand: a period spent in custody awaiting trial

If bail is denied and the magistrate or authority officer determines that the accused should
remain in custody until trial à the accused will be held on remand in police custody or at a
remand centre.
• Used for people who have committed:
o Violent crimes
o Dangerous Criminals
o Repeated offenders
o Thought to be a risk
• If the accused is found guilty and convicted, the remand period is usually taken of
their total time of their sentence and referred to as time already served

In deciding whether or not to issue bail the court must consider:

• The likelihood of the defendant appearing in court for their hearing
• The interests of the defendant (eg. if they are sole carer = women getting bail more)
• The protection of the victim or victims Some of the conditions placed on bail may be:
- Surrender of passport
- Regular report to police station
- Stay away from certain area/ group of people

Detention - A person cannot be detained unless they are arrested

- Police can generally only detain someone for up to 8 hours,
unless the person is charged with a crime
- The allowable detention period varies according to different
circumstances. Concerns have been expressed about the ability
of police to detain suspected terrorists for much longer, as in the
case of Mohamed Haneef in 2000, which violates the ICCPR
Interrogation Definition: act or process of questioning a suspect, carried out under the
directly strict supervision by the trained interrogating officers
 - Police may question anyone they like, but all citizens have the
right to silence
- Right to silence extends to the courtroom in most cases
- Judges and juries are not supposed to interpret somebody
remaining silent as evidence of their guilt. Some people argue
that the right to silence should be abolished because it only
operates to protect the guilty

Examples of time periods not included in the total time:

• Transport from point of arrest to police station
• Medical treatment for person in custody
• Refreshment periods, such as eating, showering and toileting and bathroom breaks
• Waiting for relevant law enforcement to arrive
• Recovering from the effects of drugs or alcohol
• Charging procedures
• Time required for suspect to talk to relatives, friends or lawyers and time taken for
that person to arrive
• Waiting for someone to arrive at police station

Other rights of suspects:

• Rights regarding privacy
• Right to communication
• Right to a lawyer
• Illegal evidence

At the end once the maximum detention period has finished, the police must either choose to
charge the suspect with a specific offence or release them unconditionally into society
• If charged the police must either release the accused or bring them before a
magistrate/authorised offence as soon as practicable after the end of the maximum
detention period.

An exemption to this rule is the Terrorism (Police and Powers) Act 2002 (NSW)
• Allows people to make application to the Supreme Court to detain a person in
custody for a maximum period of 14 days without charge if they believe the
suspect will commit terrorism
The Criminal Trial Process:
The criminal trial process is also known as the adjudication process and is the hearing stage
of the criminal process, where the guilt or innocence of a defendant is decided in a court
according to the rules of procedure and evidence.

Jurisdiction: the area over which a court has authority over the decisions and outcomes
produced.

People in NSW are subject to 2 court system because of the constitutional division of power:
• Constitution of Australia divides power to make laws between state and federal
governments
o most criminal law is state law
• NSW court system has jurisdiction to hear most criminal matters
• Federal court system hears some criminal matters and matters arising under the
Competition and Consumer Act 2010 (Cth).

Criminal jurisdiction of each court within NSW court system, depends on the type of case
and the seriousness of the offence.

Court Description
Local Court • Hears minor criminal cases, called summary offences
• Hears committal hearings for more serious indictable
offences
o Definition: Preliminary hearing for trial by jury to
formally indict/charge accused, allow accused
to enter a plea, and ensure prosecution has a
strong case against the accused
• Conduct coronial inquiries
• Conduct Children’s Court Hearings
• Divert some drug offenders from the court system to
instead receive treatment
Children’s Court • Children aged between 10 and 18
• Has jurisdiction over all criminal matters dealing with
children and is conducted with less formality
• Public is excluded from court
• Has a full range of sentencing options, ranging from a
caution to detention in a detention centre, but tends to be
more lenient
• Has the same court procedures, just in a changed
environment
Coroner’s Court • Investigates approximately 6000 deaths annually
• The role of the coroner is to determine the identity of the
deceased and the date, place, manner and medical cause
of death of the deceased
A coroner can hold an inquest into any of the following
circumstances
• The person died a violent or unnatural death
 • The person died a sudden death the cause of which is
unknown
• The person died under suspicious or unusual
circumstances
• Coroners also have power to investigate the causes of fire
that damage property
• The coroner’s court is not a trial court
• Their aim is to investigate and determine criminality Eg.
Phil Hughes Case, where he was killed by being hit in the
head accidentally with a cricket ball
District Court • The district court is the main trial court for serious offences
• Hears serious indictable offences
• When the accused pleads not guilty, they will be heard
before a judge and jury
• If the accused pleads guilty the judge without jury will
decide penalty
• Can also hear appeals from local court
Drug Court • Specialist court that deals with offenders who are drug
users
It aims to:
• Reduce the drug dependency of eligible persons
• Promote the re-integration of such drug dependent persons
into the community
• Reduce the need for such drug dependant persons to
resort to criminal activity to support their drug
dependencies
Supreme Court • Hears very serious indictable offences such as murder and
arson
• Is the highest trial court in NSW
• A single judge and a jury of 12 hear cases
Court of Criminal • The CCA is the highest court in NSW for criminal matters
Appeal • This is not a trial court, it only hears appeals from the
District and Supreme
• Has three judges who most vote in majority
Deals with:
• A question of law, such as certain evidence being allowed
into evidence correctly
• An appeal can also be made on a question of fact
• The prosecution cannot challenge a not guilty verdict
• Once the accused has been acquitted, they cannot be
retried. This is known as the double jeopardy rule
High Court of • According to section 71 of the Constitution, the functions of
Australia the High Court are to interpret and apply Australian law;
• Decide cases of special federal significance including
challenges to the constitutional validity of laws
• To hear appeals from federal, state or territory courts
• Does not conduct criminal trials; it only hears appeals
• Decisions of the high court on appeals are final and the
decisions are binding on all courts
• There is no automatic right to appeal, those appealing must
persuade the court that there are reasons for the case to be
heard
Australia uses the adversarial system of trial
• Two parties prove their case and disprove the other side’s version to an impartial
third party
• Impartial judge listens to evidence and decides as to which side is correct
• Judge acts as an impartial mediator
• Each party must be represented equally and controls what they present to the court.

Features of adversarial system that differs from inquisitorial system. These include:
• There are strict rules of evidence eg. hearsay
• There is a presumption of innocence
• Witnesses are examined orally and can only answer the questions provided
• The past record of the accused may only be examined during sentencing

Issues:
• Legal representation comes into play à legal aid is an issue
• If you have a better lawyer, you are more likely to get off the offence
• Department of Public Prosecutions is underfunded, look at Man Monis Case
• Standard and burden of proof
• Use of juries as an impartial third party

In an adversarial criminal case:

• Case is called a prosecution
• Party who takes the case to court is called the prosecution, usually the state (the
government) also called the crown
• Party against the prosecution is called the defendant (accused)
• After case is decide, court can give a sentence if accused is found guilty. The court
imposes a sanction (punishment)

• Prevent, detect and investigate crime

• Maintain social order
• Perform and co-ordinate emergency operations

To prosecute a case means to present the case on behalf of the state

• The prosecutor calls on the witnesses and examines them, and presents other
evidence
• Prosecutors in the local court are police officers who are attached to the prosecution
branch
• In the district and supreme courts the office of the DPP controls criminal prosecutions
in NSW. This is an independent prosecution service outside political control.
Established under the Director of Public Prosecutions Act 1986.
 • Magistrates decides cases in the Local Court. While a judge sits in higher courts
• Appointed by the government. Can only be dismissed from their office by vote of
parliament
• Judge’s role differs on whether he or she is sitting in a trial by jury or a summary
hearing.
• In both types of cases the judge’s role is:
o To ensure that the trial is conducted legally and in a manner which is fair to
the accused
o Decide questions which arise about the law
o Impose a punishment
In a summary hearing, their role is to decide guilt or innocence, whereas in a trial by
jury, the judge explains points of law to the members and asks the questions which
must be answered by them to reach a verdict.

• Holder of a government office responsible for prosecuting indictable offences heard

summarily or in front of a jury
o A barrister from the Office of Director of Public Prosecutions generally
prosecutes the case
o Has responsibility for criminal trials, committal hearings, appeals
o Federal offences are prosecuted in the state criminal justice system and the
commonwealth DPP undertakes those prosecutions

Appointed by the NSW government under the Public Defenders Act 1995 NSW
• Barristers who represent people accused in the district or supreme court of
committing serious crimes
• Public defenders are only available to people who have been granted legal aid.
o Role is to ensure the protection of people’s rights who are accused of serious
crimes
o Help protect fundamental legal principles like right to a fair trial

• A barrister is admitted to ‘the bar’ and specialises in courtwork, appearing for persons
in the criminal court
• Solicitors do appear in court, usually the local court, and assists barristers in running
a case in the higher courts. Also deals with more general legal matters
• It is not for the lawyer to judge innocent or guilty. Innocent until proven guilty

When a person is charged with a crime, they have been formally accused by the state of
criminal behaviour. Once they are charged, they are required to respond by entering a plea
of guilty or not guilty.
 • A guilty plea means there is no criminal hearing, and the judge only needs to
consider what penalty to impose
• In over 80% of cases the accused pleads guilty
• There will be a criminal hearing if plea is not guilty

Definition: process which involves the prosecution offering to discontinue charges against a
person accused of crime, in exchange the accused agrees to plead guilty to a lesser
sentence
• Aims to promote resource efficiency, by securing a guilty plea and so negating the
need to schedule and staff a contested criminal trial
• How it works:
o Prosecution and defence meet before trial
o Defence agrees that accused will plead guilty if prosecution reduces charges
o The defence bargains with the prosecution about the type of charge that the
defendant faces if they plead guilty
o Discretion is used

Implications of charge negotiation on:

Accused - Puts pressure on accused to plead guilty
- May get a lighter sentence than they deserve
- May plead guilty because they cannot afford the cost of defending
the more serious charge
Victim - Saves them from the ordeal of giving evidence and being cross-
examined
- Lighter sentence for the accused may mean the victim of the crime
feels that the offender was not properly punished
Community - Efficient, quick and inexpensive
- Lighter sentence means accused may be more likely to reoffend
- Is a secretive process that taints the community’s perception of the
courts achieving justice

Criminal cases are prosecuted by specially trained police prosecutors or barrister. Therefore,
it is important that people charged with a criminal offence receive legal advice and are
represented by a lawyer in court.
• Legal representation is important because the rules of evidence and procedure can
be difficult for a non-lawyer to understand and deal with in court.

In criminal matters, equality of arms requires that an accused can adequately defend
themselves and represent themselves against the state-funded and legally represented
prosecution.

Equality of arms can only be guaranteed by ensuring accused has legal representation:
• Right to a fair trial, right to legal representation are protected under international and
common law
Article 14 of the ICCPR stats that in circumstances when an accused cannot afford to
pay for their own legal representation, the government is required to provide the
accused with government-funded legal representation, known as legal aid.

Definition: provision of free or cheap legal services to people on limited incomes. Since legal
representation is expensive for many ordinary people.

The aim of legal aid is to redress inequalities of access to the legal system by providing
legal assistance and representation for those on low incomes or disadvantaged
backgrounds.
• Legal Aid NSW provides a legal practitioner who prepares a case and/or represents
the client in court. Public Defender sometimes used for serious cases.

To receive legal aid a person must pass:

• Means Test:
o Person applying for legal aid must show that his or her disposable income is
less than a specified amount
• Merit Test:
o Person applying for legal aid must have a good chance of winning their case
o Only applies in criminal appeals and supreme court bail applications for
criminal matters
• Jurisdiction Test:
o Legal aid will only be granted for certain types of legal matters
o Most criminal matters pass the jurisdiction test

Rules about the conduct of a trial (court procedures and presentation of evidence) have
developed to ensure that a judge’s discretion is exercised so that the accused receives a fair
trial.

• Accused people are innocent until proven guilty

• The prosecution must prove the accused’s guilt
• The accused does not need to prove their innocence.

• The responsibility of proving something.

• Because of the presumption of offence à burden of proof is on the prosecution
o Prosecution must prove the accused is guilty of committing the crime

• The weight or value given to evidence.

• In criminal matters it is beyond reasonable doubt, whereas in civil matters it is on the
balance of probability
 • Accused must be proven guilty beyond reasonable doubt, if there is a reasonable
doubt that the accused committed the crime, they should be acquitted.

In a criminal trial, evidence is presented to the court through witnesses and other forms of
evidence:
• Witnesses: people who know something about the case and who gave evidence to
the court based on what they know and the information they have on the case.
• Prosecution witnesses include the police officers who investigated the case and
arrested the alleged offender

Witnesses are called by both the prosecution and defence are examined orally in front of
both
• This means that they are asked questions by the appropriate lawyer

Examination-in-chief:
Refers to the witness giving his or her evidence. This questioning is undertaken by the
prosecution for prosecution witnesses and by the defence lawyer for defence witnesses.
• Generally, witness can only answer the questions they are asked
• After an event, if an officer has made a statement, they an read it to a jury, rather
than memorise, if the statement has been signed and provided to the defence’

Cross-Examination:
After a witness has given evidence in the examination-in-chief, they can be cross-examined
by a lawyer from the other side.
• This gives opposing side to test the accuracy and objectivity of the evidence obtained

Re-examination:
The prosecution and defence can re-examine their own witness after cross-examination, to
clarify any issues arising out of the cross-examination process

There are rules about what questions lawyers can ask and which questions must be
answered by a witness. These are the rules of evidence.
• These rules are developed to try and keep the process fair to both sides
• The presiding judge or magistrate determines which questions are permissible

Rules include:
• Hearsay Evidence
o Witnesses may only tell the court what they heard or saw, not what someone
else told them
• Opinion Evidence
o Witness cannot give their opinion about another’s words or actions unless
they are an expert
• Relevance
 o Only evidence that relates to a matter under scrutiny can be given by a
witness
• Character Evidence
o Generally, evidence cannot be given about the bad character of the accused

An accused person does not have to say anything in court at all, though corporations must
submit documents even if it might incriminate them
• Judges and juries are not meant to interpret someone’s silence as evidence of that
person’s guilt.

• Confessions cannot be used in court unless it is made voluntarily

• Confessions made to police, but not electronically recorded, generally cannot be
used as court evidence.

A judge can refuse to admit any evidence which has been illegally obtained by either side.
• Judge or magistrate must consider the community’s interest and ensuring a fair trial
for the accused, when deciding whether to admit or reject the evidence.

A defence to a crime is a legally acceptable reason for committing an act or omitting a duty.
• Complete Defence: If defence is successfully proved by a defendant, they are
cleared of the offence they are accused of
• Partial Offence: Only available for murder, if successfully proved, reduces the
defendant’s liability from murder to manslaughter.

Complete • Mental illness or insanity

o At time of crime, accused must be proven to be suffering
from mental health condition or a type of illness
o If proven, defendant is deemed not guilty and will be
admitted to a mental institution for an indefinite period
• Necessity
o The defendant claims that the committed act or omission
was necessary to avert serious danger from occurring
o The action taken must be in proportion to the danger the
defendant was trying to avert
• Self-defence
o Mens rea is removed
o Defendant admits to committing the criminal offence,
knowing it was wrong
o But claims they were acting to defend themselves or
someone else from attack
• Duress
o Defendant claims to committing criminal act, knowing it was
wrong, but claims that they were frightened by threats or
seriously bodily harm
 o Threat can be to the defendant or to another innocent
person
o Can be complete or partial defence
o Defence of compulsion
• Consent
o Defendant claims they acted with the victim’s direct consent
o Consent by a victim to their death will not completely excuse
the defendant, it may reduce liability, e.g. murder to
manslaughter
o Can be complete or partial
o Often used in sexual offences when it is a complete defence
Partial • EXTREME provocation
o Defendant claims they were aggravated by the victim in such
a way:
- That the actions of the murdered person would
have caused an ordinary person to lose control
• Diminished responsibility (mental impairment)
o Claims that the accused was not completely in control of
their mind when they committed the murder of the victim
• Defence is provided by Section 23A of the Crimes Act 1900 (NSW)
and can be proved if:
o Accused was suffering from an abnormality of the mind
caused by either disease or injury
o Abnormality impaired the accused’s mental responsibility for
the killing.

Juries are used to hear most indictable cases where a plea of ‘not guilty’ is entered, and may
be used in either the district or supreme court
• Governed by Jury Act 1977 (NSW)
• A jury is a panel or citizens, selected at random from a jury list compiled from the
electoral roll
• The jury’s role is to reach a verdict on the guilt or innocence of the defendant based
on the evidence presented to them
• Juries are used in less than 1% of criminal cases
• In criminal cases there are usually twelve people
• The court can empanel up to 15 for lengthy criminal proceedings, but only twelve will
ultimately determine the verdict
• The verdict of the jury can be a majority verdict of eleven to one in NSW. This
decision in 2005 sparked much controversy in the media
• Majority verdicts compromise notion of ‘beyond reasonable doubt’
• Greater risk of convicting the innocent
• NSW Law Reform Commission reported in 2005 recommending against majority
verdicts
Sentencing and Punishment:
Once a person pleads guilty or is found guilty of a crime, there is a court hearing to
determine the appropriate sentence for the offender.
• Judges or magistrates decides on the appropriate penalty according to statutory
and judicial guidelines, and after hearing evidence from the prosecution and
defence as to what sentence is most appropriate for the offender

Sentencing is an established area of criminal law – there are numerous laws, rules and
guidelines and cases on how sentences are to be determined à judicial discretion is the
backbone
• Judiciary has discretion to select type of sentence and length of the time served
• Judicial discretion is limited by statutory and judicial guidelines.

Definition: A guideline sentence is a judgement given about a sentence for a particular

crime, which is to be considered by courts delivering sentences for similar offences
• Guideline sentences are outlined in the Crimes (Sentencing Procedures) Act 1999
NSW
• The NSW Attorney General can ask a judge to give a guideline sentence – NSW
Court of Criminal Appeal can also give a guideline sentence
• Issue with discretion

Maximum penalty an offender can receive usually is decided by the Parliament and listed in
legislation:
• A judicial officer can never pass a sentence higher than the maximum penalty, it is
the highest
Found in Crimes Act 1900 NSW
• Section 59 states 5 years imprisonment for assault occasioning actual bodily harm
• Section 19A describes the maximum penalty for murder is life imprisonment
• Imposed by judge
• Impose a lesser sentence taking over factors into consideration

This act governs the way judges and magistrate determine sentences in NSW. This act
makes several provisions regarding the imposition of a term of imprisonment.
These include:
• A court must impose a full-time prison sentence without considering and rejecting all
possible alternatives to the situation.
• The court can impose a fixed term of imprisonment, or, if term is over six months, can
fix a parole and/or non-parole period
o Non-parole period is the minimum time period to be actually spent in prison
• Parole period is generally a quarter of the total sentence
• Any sentence of 6 months or under must be fixed (no parole period)
Mandatory sentencing is an automatic sentence set by parliament that must be imposed by
the judicial officer for particular or repeat offences à used as a crime prevention strategy
• To provide consistency in sentencing and a response to community anger about
lenient sentences
• Introduced in NT and WA in the late 1990s

Issues with Mandatory Sentencing:

• The opponents of mandatory sentencing argue that it delivers equal sentences to
unequal offenders
• One other argument against mandatory sentencing is that it blurs the separation of
power between the judiciary and parliament
• Takes away the exercise of judicial discretion. The court cannot lessen the sentence
because of mitigating factors à court has to impose the legislated sentence

Sentencing is traditionally the means through the state and community and how they punish
an offender for the crime committed However, the notions regarding ‘punishment’:
• Is misleading and needs to be separated from the notions regarding sentencing
• Punishment is just one of many purposes behind imposing a sentence on an offender

The objective of rehabilitation is to change the behaviour of the offender. It is not simply
convicting a person and imposing a penalty à instead more aimed at preventing future
offences

Recidivism: act of a person repeating an undesirable behaviour after they have either
experienced negative consequence of that behaviour or have been trained to extinguish that
behaviour.
• Eliminate factors that contributed to the conduct, encouraging renunciation of the
crime by offender

Deterrent: Something that discourages or is intended to discourage someone from doing

something
• The principle of punishment is to deter people from committing future crimes by fear
of the punishment if they are caught à by imposing a higher or harsher sentence
Specific Deterrence: punishment against an individual offender aiming to deter them
from committing future crime by showing ‘crime does not pay’

General Deterrence: punishment to make an example of an offender to send a

message to the community that the law is serious about
punishment for this offence

Refer to punishment considered to be morally right or deserved because of the nature of the
crime.
 • Has a range of purposes but assumes that good comes from inflicting hardship on
the offender for their crime.
• ‘Eye for an eye’. Retribution is nothing more than revenge on the person who
committed the crime.

Main jurisdiction for inflicting punishment on an offender and relates to Section 3A purposes
including:
• Ensuring that the offender is adequately punished for the offence, according to the
offence’s severity
• Making offender accountable for their actions and denouncing their conduct of
actions
• Recognising the harm to the individual and the community.

Incapacitation simply means placing an offender in some form of custody (like jail, home
detention, community work, license cancellation, etc) where they are prevented from
committing further crime
• Offender should be incapacitated until they are no longer considered a danger to
society
• Courts may now order home detention which has similar aims of keeping the
offender in a particular place - the home
• Unfortunately, no one can know how long an offender is going to be a danger to
society and prison imposes a large cost to the public

The judge or magistrate decides on a suitable punishment for individual offenders within
guidelines set by the Crimes (Sentencing Procedure) Act 1999 (NSW). They consider:
• Maximum penalty
• Other legislative and judicial guidelines
• The purposes of punishment
• Aggravating factors and Mitigating factors
• Victim Impact Statements, if one is given.

Aggravating They are factors that somehow make the offence more serious or
factors severe.
• May result in maximum penalty being imposed and included
particular circumstances of the offence, victims and offender
• Usually put forward by the prosecution at the sentencing hearing to
persuade the judge about the severity of the crime
Aggravating factors include:
• Violence, cruelty or weapons
• Any injury, harm or damage
• If the offender is a re-offender or has any prior convictions
Mitigating Factors that involve circumstances that may work in the defendant’s
factors favour by explaining the cause and reason of their conduct. These
include:
• Good character references or no prior convictions
• The offender is youthful or inexperienced
 • The offender pleaded guilty or assisted police
• Shown honest remorse
• Good prospects of rehabilitation
• Circumstances surrounding offence, for example provocation
Judicial • The judge or magistrate has a choice of what type of penalty to
Discretion impose on a convicted offender

Victim Impact Statement: statement read to court, outlining the full effect of the crime on the
victim.
• It can be made by the victim or their family if the victim is unfortunately dead due to
the accused’s actions.
• Victim’s Rights Act 1996 NSW contains a Charter of Victims Rights
• They can provide useful information to the court about the impact of the crime on the
victim or family
• They can give the victim a role in the court process, giving the victim and the
community greater confidence in the system
• They may assist in the rehabilitation of the offender, because he or she gets to hear
the impact of their actions
• One disadvantage is that it may prove embarrassing and upsetting and it may not be
in the best interest of the victim to make such a statement
• The victim can be cross examined on the statement (links in with the last point on the
upsetting and feeling as though they are being attacked)

• Appeals can be made either against the conviction or against the sentence severity
• The prosecution can appeal against the leniency of the sentence, but generally
cannot appeal against an acquittal (double jeopardy)
• The process of appeals allows higher courts to supervise the discretion of
judges and magistrates when they are making sentencing decisions, thereby
helping to ensure consistency by establishing the maximum and minimum range
of sentences for particular offences

There are many different penalties a court can apply in sentencing. The Crimes
(Sentencing Procedure) Act 1999 (NSW) lists the various penalties that can be imposed.
• The type of penalty depends on how the magistrates or judge ultimately weighs the
factors present and cannot exceed maximum penalty specified for that offence.

Penalty Description Advantages Disadvantages

No conviction Trivial matters, Cheap No rehabilitation
record guilty’s charge is Quick Not retributive
dismissed with no Appropriate in minor
conviction recorded sentences
Specific deterrent
Caution Caution from police Cheap No rehabilitation
Quick Not retributive
 Appropriate in minor
sentences
Specific deterrent
Fine - Pro-rata Issues in penalty Cheap May not deter
system is better units (if you don’t Quick disadvantaged people
pay, other things can Appropriate in minor who have difficulty
be taken) sentences paying fines, and
Flexible advantages those with
lots of money (not fair)
Bond Good behaviour Cheap Opportunity to reoffend
bond for a period of Rehabilitative May not deter
time Suitable for Difficult to supervise
summary offences
where society is not
in danger

Suspended Sentence is not Cheap Opportunity to reoffend

Sentence executed, and Rehabilitative May not deter
offender is released Suitable for Difficult to supervise
on a good behaviour summary offences
bond where society is not
in danger
Probation Similar to a bond but Cheap Opportunity to reoffend
requires a Rehabilitative May not deter
supervisor from the Suitable for Difficult to supervise
Patrol Authority summary offences
where society is not
in danger
Criminal Notice imposing a Deterrent People ignore them
Infringement fine for minor crimes Cheap Not a specific deterrent
Notice Not retributive
Community Requirement to Cheap May not deter
Service Order perform some Assists general Opportunity to reoffend
unpaid work or community May not rehabilitate
service in the Offender may
community correct the damage
they have caused
Home detention Confined to their Allows the offender Only available in city
home to work and care for courts
their family
Appropriate for non-
violent crimes
Decreases prison
population
Can rehabilitate
offender
Periodic Can serve their Cheaper May not deter
detention prison sentence on Allows offender to Opportunity to reoffend
consecutive continue with
weekends education or job
Forfeiture of Give up property Retributive May not rehabilitate
assets that was used to
commit the crime or
 gained from the
crime
Imprisonment Offender detained in Incapacitates Can adversely affect
prison offender so they their behaviour
cannot reoffend Imposes hardship on
Serious punishment family
for serious crimes May not deter
Very expensive

Alternative methods of sentencing are primarily aimed at rehabilitation, so offender can

avoid further contact with the criminal justice system.
• They may involve drug or alcohol rehabilitation or are aimed at a certain group of
people, such as Aboriginal offenders or young offenders.
NSW is flexible to allow local Aboriginal communities to adapt processes to meet their own
local culture and experiences

Circle Courts are designed for repeat offenders and those who have committed more serious
crimes. It is based on Indigenous customary law and more traditional Indigenous forms of
dispute resolution:
• Involves community members and magistrates sitting in a circle
• Discusses offender’s crime and tailors most appropriate sentence for an offender
• It has full sentencing powers of a court

Restorative justice: voluntary conference between the offender and the victim of the crime.
• Involves bringing offender and victim of the offence together. It provides opportunity
for the offender to take responsibility for their actions and impact they have had on
others

While victims are given a voice to confront the offender and work out a way to repair the
damage done.
• Victims are able to ask questions about offence to help move forward from the crime
• Offender has opportunity to apologise or make amends for their act

Security Under the Crimes (Administration of Sentences) Regulation 2008

Classification NSW
- The classification of prisoners may change as a result of
good behaviour
- Maximum: prisoners who because of their crime or past
history, will be classified as maximum security. About
37% of prisoners are in Max
- Medium: prisoners receive more privileges than max
security
- Minimal: fewer restrictions eg. open prison farms. 29%
 - Classification is important because it determines in which
prison they serve their time, and consequently, to which
rehab programs the prisoner has access
- Also determines the privileges to which the inmate is
entitled, and the kind of offenders they are put with
- These factors can have an effect on the prisoner’s
experience and on his or her chances of integrating back
into the community when released
Protective Custody - Certain inmates will be placed in protective custody
- May be due to race, sexual preference, disability
- Prisoners who feel they are in danger from their fellow
prisoners can ask to be placed in protective custody,
which means being separated from the prisoners whom
they fear
- However, it restricts their access to education programs
and opportunities to work.
Parole - Parole allows prisoners to leave prison before they have
completed their full sentence
- When and how parole is granted is restricted by the
Crimes (Sentencing Procedures) Act 1999 NSW
- Prisoners on parole are supervised by the Parole
Authority and are subject to certain restrictions
- Encourages prisoners to behave and undertake
rehabilitative activities. Supervision ensures they
assimilate into society and remain free from criminal
activity
Preventative - Preventative detention is the detention of people detained
detention and without charge because they are suspected of terrorist
continued detention activity (have not been charged or found guilty of
criminality), or serious offenders at risk of reoffending
- Continued detention for serious offenders after their term
of imprisonment.
- Eg. the Crimes (Serious Sex Offenders) Act 2006 NSW
provides that serious sexual offender can continue to be
detained after their sentence.
- Main reason for this is to protect the community
- However, the people detained under this have already
served their sentence
Sexual offender - For people who have been convicted of serious sexual
registration offences, particularly involving children
- Must report to a police station close by and provide police
with information including travel plans
- Also subject to supervision upon release.
- Chances of re-offending are minimised
- However, if the information becomes public, the offender
is in real danger, some residents may object to them
living in their community.
Deportation - Can cause hardship for the offender’s family if they are
the main income earner
- Lisa Le “faces imminent deportation - with or without her
toddler son - after her relationship with the boy's father
wasn't considered "genuine or ongoing" by the
Department of Immigration and Border Protection” (SMH,
2015)
Young Offenders:

Children are treated differently at every stage of the criminal justice system. In most cases,
the community and law recognise that for children and young people who have not reached
adulthood, there may be a:
• Different level of responsibility in their actions, or there may be a;
• Different level of protection or assistance required

The law treats children and young people differently from adults. Reasons include the
following:
• Preventing children and young people from being exploited
• Protecting them from the consequences of making uninformed decisions
• Protecting others from being disadvantaged by dealing with a minor

Under the Children (Criminal Proceedings) Act 1987 (NSW), no one under ago of 10 can
be charged with a criminal offence, because they aren’t old enough to form necessary mens
rea.
• Child is between 10 and 14 à doli incapax can be challenged à child can be found
in court to have necessary mens rea to be held criminally responsible for their
actions.
• Prosecution must prove the child knew what they were doing was wrong

• LEPRA and Young Offenders Act 1997 contain the rights of children and young
people when questioned or arrested. Some include:
o Child allowed to have an adult as a support person during any police
procedure
o Children in custody must not be kept in same cell as adults
o Police must not photograph or take bodily sample of a child without court
order
o Police must tell a child about their rights and assist them to exercise those
rights
o Powers of search and seizure are same, except child under 10 cannot be
strip searched and a support adult must be present during an older child strip
search

The Children’s Court is a specialist court established in 1987 under The Children (Criminal
Proceedings) Act 1987. Has its criminal jurisdiction, the Children’s Court can hear the
following?
• An offence other than a serious indictable offence committed by a child
• Committal proceedings of any indictable offence, including serious ones, where the
accused is a child.
Its dual role is to:
• Dealing with the criminal matters of children and young people under 18 years of age
• Dealing with matters of care and protection of children and young people referred to
it by the Department of Community Services.
Proceedings:
• It is a closed court
• The media may attend, but must not publish the identity of the accused
• Magistrate will take reasonable measures to ensure the child understands
proceedings
• Conviction not recorded if child is under 16

When a child pleads or is found guilty of a criminal offence the Children’s Court must follow
sentencing principles set out in the The Children (Criminal Proceedings) Act 1987. Some of
these principles are:
• It is desirable, if possible, for the accused child’s education to continue uninterrupted
• It is desirable, if possible, for the child who is accused to live at home
• Penalty imposed on a child for an offence must be same as adult who commits
offence of the same kind.

For Young Offenders there are several alternatives to court. Under the Young Offenders
Act 1997 NSW introduces diversionary measures for young offenders and police as an
alternative to traditional criminal processes.

Definition: an official notice given to younger offenders by an investigating officer, without

any conditions attached. à officer records warning but it is not apart of the child’s criminal
history.

The warning is relatively informal:

• Can be given in any place
• Officer must tell offender the nature, purpose and effort of the warning
• Cannot be given for an act of violence, a repeat offence or at discretion of
investigating officer

Police may issue a caution to a young offender to discourage further offending. The caution
is a formal recorded alternative to prosecution where:
• The young offender admits to the offence and consents to receiving a formal police
caution

To give a caution, investigating officer must consider the: seriousness of the offence,
degree of violence involved, the harm caused, and number of offences committed by
offender. Child may be cautioned up to 3 times.
Young Offenders Act 1997 NSW allows for youth justice conference when a young
offender admits to an offence but consents to having it dealt through these different methods

Purpose/Aim:
• Allow offender to take some responsibility for their actions and behaviours
• Promote better family understanding
• Provide the offender with appropriate support services to help them overcome
difficulties
• Allow apology for victim
• Reparation made to the victim
• Drug/alcohol rehabilitation

International Crime:

Definition: A broad term covering any crime that is punishable by a state, but that
has international punishable by a state, but has international origin or
consequences, or crime recognised by the international community as
punishable.

Definition: crimes committed by individuals and states which are seen as wrong by the
international community.
• Aimed at whole international community or a specific group of members from the
community.
• Includes war crimes, crimes against humanity, Genocide, Terrorism and Slavery

Laws against these crimes are usually contained in declarations and conventions of the UN.
• No international police service. So Interpol is a UN organisation of 184 members to
facilitate cross-border police-cooperation
• The Rome statute established the ICC in 1988. The ICC’s aim is to trial individuals
who:
o Commit genocide eg. Rwanda
o Crimes against humanity
o War crimes
• The ICC will only have authority to act when the country in which the crimes were
committed is unwilling or unable to prosecute

These crimes occur within a state's legal system but containing international element. This
usually means that the organisations or people involved in the crime could be responsible for
that crime in several countries. These crimes are therefore handled under both the criminal
system of a nation state and through international criminal provisions.
• Main transnational crimes include hostage-taking, terrorism, the drug trade and
different pornography.
Dealing effectively with international crime requires an approach that combines domestic
and international measures. The methods used to deal with crimes against the international
community and transnational crimes are considered separately below.

Domestic responses to international crime are limited by jurisdiction. Australian law

enforcement cannot operate in a foreign country.
• Australian courts do not have jurisdiction over crimes committed under foreign laws
• Australian parliaments cannot make laws that affect the laws of other countries.

As a result, the ability of the Australian legal system to respond is inhibited unless there is
cooperation with foreign countries.

Crimes against the International Community:

The most significant recent development in Australia in terms of dealing with crimes against
the international community was the signing and ratification of the Rome Statute. Australia
was one of the first signatories, signing on 9 December 1998. Australia ratified the statute on
1 July 2002, which was the date the Statute came into force internationally.
Prior to the introduction of the Rome Statute, Australia had legislated to criminalise several
recognised crimes against the international community: for example, the War Crimes Act
1945 (Cth) and the Geneva Conventions Act 1957 (Cth), which outlawed the recognised
war crimes listed in the Geneva Conventions. Coinciding with Australia’s ratification of the
Rome Statue, the Federal Government passed the International Criminal Court Act 2002
(Cth) and the International Criminal
Court (Consequential Amendments) Act 2002 (Cth), to ensure that Australia’s domestic
laws would comply with the statute.

In addition to procedural amendments, the legislation introduced a new chapter to the

Commonwealth Criminal Code: Chapter 8 – Offences against Humanity and Related
Offences. The new chapter made all the crimes listed in the Rome Statute offences in
Australia. It did the same for some existing offences, such as many of the war crimes listed
under the Geneva Conventions Act 1957 (Cth).

The ICC is intended to complement rather than exclude existing state criminal justice
systems and it can only prosecute a case when state courts cannot or are not willing to do
so.
• Australia also has a role to play as a state party to the ICC and actively participates
in discussions among the state parties and in administration of the court.
• Australia now has primary jurisdiction to investigate and prosecute such crimes if
they occur in Australian territory or involve Australian citizens.

Transnational Crimes:
The Australian Government, like many governments around the world, has moved in recent
years to combat the rise of transnational crimes. The following are some of the measures in
place to monitor and respond to issues of transnational crime.
Australian Federal Police (AFP):
The AFP was established under the Australian Federal Police Act 1979 (Cth) to enforce
Commonwealth criminal law and to protect Australia’s interests from crime in
Australia and overseas.

Commonwealth Attorney-General’s Department:

The role of this department includes:
• It reports and provides valuable advice on Australia’s compliance with its
international obligations
• Oversees the operation of legislation relating to transnational crimes
• Provides advice on its implementation
• Provides general information to the public and to parliament on the status of
Australia’s efforts against transnational crime.

Australian Crime Commission (ACC):

The ACC is a national statutory body established under the Australian Crime Commission
Act 2002 (Cth) to combat serious and organised crime. It investigates the following:
• Matters of national concern
• In coordination with other international law enforcement agencies, it delivers
specialist law enforcement capabilities to assist in investigating and analysing
intelligence concerning national and transnational crimes.

Australian Customs and Border Protection Service:

The Australian Customs and Border Protection Service is a national agency responsible for
the security and integrity of Australian borders. The agency works closely with other
government and international agencies to detect and deter the unlawful movement of goods
or people across Australia’s borders.

There have been many international measures aimed at tackling international crime. These
measures can be divided into the following categories:
• Cooperation among governments through international treaties and international
organisations targeted at specific types and aspects of international crime
• International courts and tribunals to deal with the enforcement of international law
• Cooperation and intelligence sharing between national and sub-national agencies to
tackle problems of trans-border crime.

Crimes against the international community:

Most of the international efforts aimed at preventing or prosecuting crimes against the
international community have been discussed above. It is in the nature of such crimes that
the international community recognises and universally agrees to condemn them.

Courts and tribunals:

Before the establishment of the ICC, international crimes were usually dealt with on a
domestic level by courts or military tribunals. However, throughout the 20th century, and
particularly in the 1990s, various ad hoc international tribunals were also established to
prosecute atrocities relating to events.
• Recently, the International Criminal Tribunal for the former Yugoslavia (ICTY)
was established in 1993 by the UN Security Council to investigate and prosecute
individuals for war crimes, crimes against humanity and genocide committed during
the Yugoslav conflict in the 1990s.

Extradition treaties:
Extradition: the process whereby one country surrenders a suspect or convicted criminal to
another country to face criminal charges or sentencing.
• For example, if a person commits murder in another country and flees to Australia
before they are caught, they might be extradited back to the original country.
• It is relevant to all types of crimes, including international crimes.
• Extradition is generally governed by a series of bilateral agreements with other
countries.
o Australia currently has extradition agreements with about 130 countries

Transnational Crime:
Interpol:
The International Criminal Police Organization (INTERPOL) is the world’s largest
international police organisation, and to date it has 188 member countries, including
Australia. INTERPOL was created in 1923 as a means of improving cooperation between
police around the world. Its mission is to prevent or combat international crime. INTERPOL
currently lists its six priority crime areas as:
• Drugs and criminal organisation
• Public safety and terrorism
• Financial and high-tech crime
• Trafficking in human beings
• Fugitives
• Corruption

Convention Against Transnational Organized Crime:

The United Nations Convention against Transnational Organized Crime is regarded as the
main international instrument. It began operation in 2000 and has three protocols that
countries become a party to once they sign the convention. These include:
• Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women
and Children
• Protocol against the Smuggling of Migrants by Land, Air and Sea
• Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts
and Components and Ammunition.

Pacific Transnational Crime Network (PTCN):

The Pacific Transnational Crime Network (PTCN) was formed in July 2002 as a response to
increases in regional transnational crime. It was an initiative of the AFP, who realised that
strong relationships were needed between Australia and its Pacific neighbours if they were
to combat the problem of transnational crime.
 Transnational Crimes Crimes Against the IC [CATIC]
• Complex who organised groups who • Permanent Court (ICC) sends a
use sophisticated measures to avoid strong message that organised
detection criminal groups cannot hide behind
• some states may lack the skills, the immunity of their own
training, and resources to combat sovereignty
such crimes or may be unable to • Threat of prosecution may act as a
due to political unrest or state deterrent – brings into question
corruption ‘What is the aim of ICC?’
• International Cooperation between • Issue – court deals with crime after
states it is committed à lack of prevention
• Exchange of information between applies
state cooperation • Act independently of state
• Level of compliance among weaker jurisdictions where they are
and poorer states unwilling or able to do so