Definition of crime: A crime is an act or omission against society and is punishable by the state, including the court system and state or Commonwealth bodies. The threshold concept: Laws are made (parliament), enforced (police) and interpreted (judges) by people. Elements of a crime: • There are two elements that the Prosecution need to prove in order to find the defendant guilty of an indictable offence;
- Actus Reus ‘guilty act’
- Mens Rea ‘guilty mind’ !
Actus Reus, ‘guilty act’, refers to the physical act of carrying out a crime and hence when the prosecution has to prove that the person actually committed the act. The actus reus must be a voluntary act but can also include an omission or failure to act. ! Mens Rea, ‘guilty mind’, refers to the mental state of the accused. In order for the prosecution to succeed, it must be able to prove that, to the necessary degree, the accused intended to commit the crime. Mens rea is commonly regarded as the conscious and willing mind that was present in performing a crime. Often if the police of Crown cannot prove that the defendant acted intentionally, fraudulently, maliciously, wilfully etc, the charge will not be proved. In all cases, except for strict liability cases, the prosecution must prove that the accused was aware (at least to some degree) that their actions would result in the likelihood of a crime being committed. The degree of intention required to prove a crime can differ and will often be specified in the legislation where the crime is defined. The three main levels of mens rea are; intention, recklessness and negligence. !
Strict liability offences For less serious offences like speeding (called strict liability offences), the prosecution doesn’t have to prove that the person intended to commit the crime all they have to prove is that the acts reus and causation, not the mens rea. The mens rea is assumed e.g running a red light it is assumed that the person was being negligent, reckless or intended to run through it. Strict liability offences only require the Actus reus, not mens rea. These offences are usually dealt with in the local court. They are also called ‘summary offences’. they have less serious punishments (mostly no more than 2 years in prison, but mainly just fines and community service orders) ! Causation Causation is a further consideration that is relevant when establishing the elements of a crime and is the link between the behaviour of the accused and the result.
- The victim was beaten really badly, but wasn’t killed during the beating. He was left on a beach instead, and the tide came up and drowned him. So what killed him, the attacker or the tide? The judge deduced that it was the guy who beat him up and left him there. If he hadn’t attacked him, he wouldn’t of died. Hallet was convicted of murder (R v Hallet (1969) There must be a Causal Link between what the accused did and the injury that was caused, the acts reus has to cause the injury or death.
Blaue v R (1975) Victim was a Jehovah’s Witness. Blaue stabbed her because she wouldn’t have sex with him. She got to the hospital in time to get a blood transfusion. However, being a Jehovah’s witness, she didn’t believe in blood transfusions, so she let herself die rather than take someone else’s blood. The stab wounds he inflected were the ultimate cause of her death.
An example of a situation where causation would not apply: You punched someone and they decided to walk away from the fight, but they were so upset about the incident that they accidentally waled out in front of a car and died as a result. Yes, they died soon after you punched them, but there was a pretty major event that happened in between you punching them and him dying from the car. The car hitting him is known as the novus actus interveniens. This means that there was something in between that intervened the chain of events between you punching him and him dying. In order to show that you did not cause the injury/death, you have to prove that something may have broken the chain of causation (a novus actus interveniens – an intervening action/events between what you did and what actually happened to the victim).
Categories of crime
- Crimes against the person e.g. assault, murder, manslaughter, sexual assault (threatening person against their person/body)
- Crimes against the sovereign (crimes attacking the government) eg. treason, sedition, inciting a riot against the government
- Economic crimes e.g Property crimes (stealing a car), White collar crimes (embezzlement, fraud, insider trading), Compute Crimes (Hacking)
- Drug crimes e.g Possession, using, growing, importing, prescription drugs, selling
- Driving crimes e.g speeding, drink driving, negligent driving
- Public Order offences e.g public indecency, swearing, public urination, soliciting, prostitution, rioting, affray
- Preliminary Offences e.g crimes that occur before the intended crime has occurred (any attempt to commit a crime is punishable)
- Regulatory offences e.g breach of water restrictions, fire restrictions or public transport rules
Parties to a crime • Parties = people involved Different parties receive different sentences, depending on how much they were involved in the crime Referred to as; parties TO a crime People who WERE there at the scene of the crime: 1. A principal in the first degree; This is the MAIN perpetrator, the person who was actually theorem right up front, committing the crime 2. A principal in the second degree; This is a person who was helping the principal in the first degree commit the crime People who WERE NOT there at the scene of the crime: 1. An accessory before the fact; This is a person who helped to plan the crime 2. An accessory after the fact; This is a person who helped the offender afterwards
Factors affecting criminal behaviour People commit crimes for all types of reasons. The scientific study of crime and criminal behaviour is known as criminology. Some of the main reasons behind a persons committing an offence may include; psychological or pathological factors, social, economic or political factors. On the other hand, some crimes may be committed purely out of self interest.! Crime prevention: situational and social Understanding the factors and motivations behind crime is also important in crime prevention. The two main areas of crime prevention are situational crime prevention and social crime prevention.
- Situational crime prevention; involves one of two approaches:
- planning and architectural design, which focuses upon the influence of physical environments upon crime
- focused (situational) approaches, which rest on rational choice theory, which views offenders as actors who weigh up potential gains, risks and costs.
Situational crime prevention aims to make it more difficult for criminal to carry out a crime and therefore stop the crime before it is committed. For example, planning and architectural design may revolve arounds security, such as installing bars or an alarm system at home to ward off would-be thieves, or using computer passwords or internet firewalls to deter the theft of data. Other crime retention initiatives by local councils have aimed at removing opportunities for crime; for exmaple, designating non-alcohol zones in an attempt to curb alcohol-related incidents, improving lighting in areas such as car parks and walkways, as well as installing blue fluorescent lights in public toilets to prevent drug injecting in public areas.
- Social crime prevention; attempts to address the underlying social factors that ay lead to criminal behaviour. Includes social and economic factors such as:
- poor home environment and parenting
- social and economic disadvantage
- poor school attendance
- early contact with the police and other authorities
The government spends millions of dollars in different areas to try to combat these social problems. For example, funding is put into educational programs in schools to raise the education levels of students deemed to be ‘at risk’. Furthermore, educational institutions run parenting workshops for parents/carers who come from disadvantaged backgrounds and lack the skills to empower themselves and their children to make better life choices.
Police Powers Law Enforcement (powers and responsibilities) Act 2002 (NSW)
- Police are responsible for enforcing criminal laws and ensuring they are adhered to, maintaining order and detecting crimes, and for ensuring that the criminal laws are observed.
- In the criminal investigation process, the role of the police is to investigate crimes, make arrests if necessary, interrogate suspects and gather evidence against the accused.
- There should be a balance between the extent of powers given to the police and the rights of ordinary citizens. → Police form part of the executive arm of government
- Citizens have an important role in the criminal justice system by reporting crimes – eg. crime stoppers
- Police decide whether to pursue an investigation or take no action based on the severity of an offence, likelihood of success, available resources and priorities
- Gathering evidence
- It is the role of police officers to collect evidence which can be used to support a charge in court, at a later date.
- Evidence should be sufficiently related to the case and must be obtained in a proper and lawful manner, as required by the Evidence Act 1995 (NSW). If evidence fails to do so it may be considered inadmissible at trial and jeopardise the chance of conviction.
- Evidence can include oral testimony of the accused, police and witness reports, objects, weapons etc.
- Great care is necessary when handling/collecting evidence, so to ensure it is not interfered with in any way. Therefore in some instances specifically trained or independent experts may be contracted to assist in collecting evidence eg. Ballistic experts and special teams of crime scene investigations
- Use of technology
- Technology is used in order to gather evidence and prove charges.
- Technology must be extremely reliable, or it may be deemed inadmissible in court, or may lead to a wrongful conviction.
- The use of DNA databases makes it easy for police to exchange information across states and internationally
- Police surveillance teams record video footage and audio, making it easier to convict and prove the guilt of the accused
- Cyber crime units have the resources and training to track down people who commit online crimes!
- Search and seizure
- Search and seizure are two special powers that are granted to the police.
- Police in NSW have broad powers to stop and search any person they ‘believe on reasonable grounds’ that they are carrying anything stolen or used in commission of an indictable offence or a dangerous article when they are in a public place. Police are then able to seize and detain any of these objects discovered. There have been challenges regarding whether the officer had sufficiently ‘reasonable grounds’ to believe they could conduct the search.
- Police may search anything in a persons ‘possession or control’ including a persons body, bag, clothes or possessions. However such rules differ where they are they involve search of premises, school grounds, search of a person in custody or when a strip search is required.
- Use of Warrants
- A warrant is a legal document issued by a magistrate or judge, authorising a police officer to perform a specific act, eg. make an arrest, conduct a search and seize property.
- This judicial oversight helps to ensure these special police powers are used only when appropriate, providing protection for ordinary citizens as such procedure avoids a misuse of police power.
- When applying for a warrant the police must give substantial reasons or evidence to the magistrateto justify the use of the warrant.
- Gathering evidence
Arrest and charge
- Police aren’t allowed to detain a person unless they have good reason to do so. Conditions which allow police to legally arrest a person include:
- catching a suspect committing an offence
- believing on reasonable grounds that a suspect had committed a serious indictable offence for which they have not been tried
- possessing a warrant for that persons arrest
- Arrest warrants require police to justify their suspicions based on reasonable evidence. For a legal arrest to be made police must state to the person they are under arrest and the reason why. By law they are also able to use whatever reasonable force is necessary to arrest the person – Eg. If a suspect threatens police with a gun, police are allowed to use their weapons as long as they alert the suspect they are willing to use their firearm, or else the police can be charged if an officer uses excessive force.
- A summons is a legal document that states when and where a person must appear in court and, if they are an accused person, the charge to which they must answer.
- Warrants can also be issued by a magistrate or judge to authorise a police officer to perform a particular act such as conduct a search, make an arrest, or use a phone tap.
- Although police must give substantial evidence to justify and receive a warrant, emergency warrants can be obtained over the phone.
Bail or remand
- In serious matters, the accused who is charged may be detained at a police station. After they are photographed and fingerprinted, police are required to bring them before a court or authorised officer for their bail hearing.
- Bail describes the temporary release of an accused person awaiting trial. In particular conditions, a guarantee (lodgement of a certain amount of money) can be made, so the person is able to leave until the trial.
- Bail also comes in the form of surety,where someone else agrees to put up the money on behalf of the accused, as an assurance that the accused will show up for court.
- If bail is denied an authorised officer or a magistrate determine that the accused should remain in custody until trial, the accused is then held in remand in police custody or at a remand centre. This is usually the case for those accused of committing violent crimes.
- The accused is held in remand until the trail. If found guilty the time they have been in remand, is taken off the sentence which they must serve.
Detention and interrogation / Rights of suspects
- Police are not allowed to detain a person unless they have a good reason to do so, these reasons are laid out in the Law Enforcement Act 2002.
- Detention and interrogation
- The Law Enforcement Act 2002 sets out the conditions under which a suspect can be detained for questioning and for the purpose of further investigation. Lawfully, police can only detain a suspect for four hours, by which time the person must be either charged or unconditionally released, however police can apply for a warrant to extend the detention period.
- Upon detention, the police must issue a caution to the suspect that outlines the maximum period of detention and that they ‘do not have to say or do anything but anything that the person does say or do may be used in evidence’. The suspect also has the right to silence and doesn’t have to answer any of the police’s questions either with or without legal representations.
Court jurisdiction: criminal courts Once a formal charge has been laid against a person, a hearing or trail of the accused will need to take place in an appropriate court. There are many courts that have jurisdiction to hear criminal offences. The right court for the matter to be heard will depend on a number of factors including:
- seriousness of the matter (summary or indictable)
- whether the matter is being heard for the first or whether it is an appeal
- the nature of the offence (some courts or divisions within courts have the authority to hear particular types of offences) – age of the accused
- type of hearing (bail, committal, trial)
- whether the alleged crime is under state or federal law
The case will then be heard at the appropriate place in the court hierarchy (system of courts – from lower courts, to intermediate and superior).
- The criminal justice system in Australia is based on an adversarial system of law. The adversary system relies on a two-sided structure of opposing sides (adversaries), each presenting its own position, with an impartial judge or jury hearing each side and determining the truth in the case.
- The adversary system applies to both civil and criminal matters.
- In criminal law the adversary system pits the prosecution against the accused, who will usually be represented be a lawyer. The judge, or jury, in indictable offences, acts as an impartial observer who determines the accusers guilt or innocence based on the presented evidence and arguments.
- The alternate to the adversarial system is the inquisitorial system, in which a judge or group of judges play a role in investigating the case or calling for evidence or testimony that has not been requested by either side.
- Supporters of the adversarial system often claim that is is a fairer system because it allows each party a equal opportunity to present its case and is less prone to abuse or bias by the official determining the case.
Legal personnel in a criminal trial Criminal trials often involve a large number of participants, both behind the scene and in the courtroom itself. They are involved in various aspects of the case from the beginning of the investigation through to the end of the trial. The non-legal participants in a criminal trial include the accused, witnesses who are called to testify and the police responsible for investigating the case.