Crime Syllabus Notes

Core Part 1

Principal focus: Through the use of a range of contemporary examples, students investigate
criminal law, processes and institutions and the tension between community interests and individual
rights and freedoms.

Themes and Challenges

1. The role of discretion in the criminal justice system
2. Issues of compliance and non-compliance in regard to criminal law
3. The extent to which law reflects moral and ethical standards
4. The role of law reform in the criminal justice system
5. The extent to which the law balances the rights of victims, offenders and society
6. The effectiveness of legal and non-legal measures in achieving justice

 The nature of crime

 The meaning of crime

Crime is an act or omission of duty, resulting in harm to society, and is punishable by the state.
Most crimes are created by moral and ethical judgements placed on a person’s behaviour by
society. The state, acting on behalf of society, rather than the victim, brings criminal cases, as
the act is seen as an attack upon the standards and expectations of society.

Crime is mainly governed in NSW by the Crimes Act 1900 (NSW) and nationally by the
Crimes Act 1914 (Cth).

 The elements of crime

In order to be found guilty, the prosecution must prove Actus Reus and Mens Rea are present.
Actus Rea refers to the physical performance of a criminal act.

Mens Rea refers to the guilty mind or intent to commit a crime, where the accused was aware
that their actions could result in a crime being committed. Three main elements of Mens Rea:
 Intention: malicious or wilful intention to commit a crime
 Recklessness: the accused was aware their action could result in a crime but chose
to do it anyway.
 Criminal Negligence: the accused fails to foresee the risk where they should have,
allowing an avoidable danger to manifest

Mens Rea – malicious intent R v Jacob Bradley Holland [2017] NSWDC

21-year-old Holland from Coffs Harbour was found not guilty of assaulting a woman in her nearby
home as he was proven to be suffering from a state of automatism (somnambulism), resulting in
unconscious sleep walking. Justice Mahoney held that whilst the Actus Reas was present, his intent
(Mens Rea) was not, resulting in an acquittal.
‘Not guilty Your Honour, I was sleepwalking when I did it.’
Mens Rea – criminal negligence R v Thomas Sam; R v Manju Sam [2009] NSWSC
A father and mother were charged with manslaughter by criminal negligence of their 9-month-old
daughter, after she died from deliberate lack of treatment for her severe eczema. The parents had
repeatedly rejected conventional medical treatment, and instead relied on ineffective homeopathic
treatments, despite their awareness of the child constantly crying in pain, with broken skin oozing fluid.
Justice Johnson concluded that it was the ‘most serious case of manslaughter by criminal
negligence’. The parents were both found guilty of manslaughter and sentenced to
imprisonment.
 On appeal, both sentences were increased, with the father receiving eight years
imprisonment and the mother receiving five years and four months.

 Strict liability offences

Strict liability is an offence where Mens Rea does not need to be proved, only Actus Rea. E.g.
traffic offences, selling alcohol to a minor.

 Causation
Apart from proving that the act took place, the prosecution must show that there is a link
between the act and the harm caused, hence important in proving Actus Reus.
Causation R v Munter [2009] NSWSC
The accused, Todd Munter, was charged with manslaughter after he punched 66-year-old Ken Proctor
over a dispute regarding water restrictions. Mr Proctor fell to the ground after the punch and Mr Munter
kicked him in the midsection with moderate force. Shortly afterwards, Mr Proctor died from a heart
attack as a result of the blows inflicted upon him by Mr Munter. Although there was no apparent
intention to murder Mr Proctor, it was deemed by the courts that Mr Proctor’s death was caused by
the unlawful assault of the accused, showing causation between Munter’s actions and the harm
occasioned. Mr Munter was convicted of manslaughter (no Mens Rea) and jailed for three years and
three months.

 Categories of crime
 Offences against the person
 Homicide
o Murder: the hardest charge to prove as it is very serious and carries a
harsh penalty.
o There was a deliberate act to kill OR
o A deliberate act to cause serious harm, which resulted in death OR
o Reckless indifference to human life resulting in death OR
o Death occurred during the commission of a serious crime, such as an armed robbery.
o Manslaughter: less intentional than murder, as there is a defence for the
accused actions.
 Voluntary Manslaughter: the killing of a person where the accused did intend or
was reckless about killing someone but there are mitigating circumstances, such
as duress.
 Involuntary Manslaughter: the killing of a person where the death occurred
because the accused acted in a negligent manner, but without the intention to kill.
(R v Thomas Sam 2009)
 Constructive Manslaughter: the killing of a person while the accused was
carrying out another dangerous/unlawful act. (R v Munter 2009)
 o Infanticide: the death of a baby under the age of 12 months at the hands
of its mother. This uses a mitigating circumstance of diminished capacity
due to post-natal depression. The Age Article ‘When mums kill: Charge
of infanticide an offence that divides the community,’ 2017. Akon
Guode killed her three children, receiving 20 years, but only 12 months
for her child under one, after pleading guilty to infanticide. This article
sheds light on several cases of infanticide, posing the question of its
legitimacy as a partial defence. Whilst it may protect a mother suffering
post-natal depression, it does not protect the victim. Also issues of only
applying to mothers.

o Dangerous Driving Causing Death: driving in an unsafe or reckless

manner, such as under the influence of drugs or alcohol, causing death of
another human. Max penalty 14 years in prison.

 Assault: causing physical harm or threatening to cause physical harm to another person
1. Aggravated Assault: more serious, and hence attracts heavier penalties
1. Use of a dangerous weapon, such as a knife
2. Assault of a police officer
3. Where the intention is to cause serious harm
4. Threatening to contaminate a person with an infectious disease, such as AIDS

 Sexual Assault: forcing someone into sexual intercourse against his or her will and
without consent.
2. Indecent Assault: an act of indecency on or in the presence of someone without their
consent.
3. Aggravated sexual assault in company: sexual assault performed with other people present
with aggravating circumstances.

LAW REFORM R v AEM [2002] NSWCCA

The catalyst for change in the NSW law of sexual assault in company was the case of R v AEM.
The case involved three young men (two brothers and their cousin who were 19, 16 and 16 years old
respectively
 at the time of the crime), who lured two 16-year-old girls and then forcibly detained
and sexually assaulted them over a period of several hours. The girls were threatened with knives and
verbal death threats. At the time, the only applicable crime was aggravated sexual assault, which carried
the highest penalty of 20 years’ imprisonment. The men were originally sentenced to five to six years’
imprisonment each. The abhorrent nature of these crimes led to a public outcry over the existing
laws of rape, which were thought by a large segment of the public to be too lenient given the nature of
the crime. Following the case, the NSW Parliament moved quickly to introduce new laws and tougher
penalties, creating a new offence of ‘aggravated sexual assault in company’ in
 s 61JA of the
Crimes Act 1900 (NSW). The new offence carries a maximum penalty of life imprisonment,
equivalent to that for murder. Notably, on appeal by the Crown in 2002, the appeal judges decided to
significantly increase the offenders’ original sentences, substituting them with 13 to 14 years’
imprisonment each.

 Offences against the sovereign

o Treason: an attempt or manifest intention to levy war against the state, assist the
enemy or cause harm or death to the head of state.
 o Sedition: promoting discontent, hatred or contempt against a government through
slanderous language. Includes urging force or violence against the government.
Criminal Code 1995 (Cth)

 Economic offences
o Crimes against property
o Larceny: Intentionally taking another’s property without consent and without intention
of returning it.
o Robbery: When property is stolen from a victim using force, includes ‘armed robbery’
which results in higher penalties.
o Break and enter: when a person enters another’s home with intent to commit an offence
such as larceny.

o White-collar crime: non-violent crimes associated with business people.

o Embezzlement: when someone steals money from a business over time while they are
employed there.
o Tax Evasion: avoiding paying the legally required amount of tax by concealing or
underestimating one’s income or assets.
o Insider Trading: illegally trading on the share market to his or her own advantage using
confidential information.
White-collar crime – Insider trading R v Rivkin (2003)
The accused, Rene Rivkin,
 was a well-known Australian entrepreneur, investor and stockbroker. He
was found guilty of insider trading after a long-running investigation for having purchased some 50 000
shares in Qantas in April 2001. It was found that Mr Rivkin had been told confidential information by a
company executive just hours before
 he bought the shares of an impending merger between Qantas
and the company, Impulse. It was likely that the price of the shares would rise once the information was
publicly available. The purchase resulted in small profit of $2662.94.
Mr Rivkin was convicted and sentenced to nine months of periodic weekend detention, and his
stockbroker licence had been separately banned.

o Computer offences: involving various crimes such as hacking and Internet fraud.

 Drug offences: focuses on users, suppliers, cultivators, traffickers

Drug Misuse and Trafficking Act 1985 (NSW)

 Driving offences: (strict liability)

o Exceeding the speed limit
o Ignoring road signs
o Driving under the influence
Transport (Safety and Traffic Management) Act 1999 (NSW)

 Public Order offences: acts that are deemed to disturb the public order in some way, such
as a disturbance in or in sight of a public area.
o Affray: using/threatening to use violence towards another that would cause a
reasonable person at the scene to fear for their safety.
o Indecent exposure
o Obscene or threatening language or behaviour in public
o Riot: similar to affray but with 12 or more people using threatening or unlawful
violence for a common purpose.
Summary Offences Act 1988 (NSW)
  Preliminary crimes: where the crime was not completed for some reason, punishment will
be the same as carrying out the crime itself.
o Attempt: offence where a principle crime was attempted but failed.
o Conspiracy: when two or more people plot to commit a crime together.

Preliminary Offence – attempt R v Whybrow (1951) UK

A husband connected electricity to the soap dish in the family bath in order to electrocute his wife. His
plan did not work and when his wife came into contact with the soap dish she received only a shock.
The court found him guilty of attempted murder because his intention for the act to succeed and result
in death was clear, despite the fact that it had failed.

 Regulatory offences: minor offences, usually strict liability, that most don’t view as a
crime, such as jaywalking or watering the garden despite water restrictions.

 Summary and indictable offences

Summary Offences Act 1988 (NSW)

 Parties to a crime
o Principal in the 1st degree: the person who actually commits the act.
o Principal in the 2nd degree: the person who was present and assisted or encouraged the
principal offender to commit the act.
o Accessory before the fact: someone who assisted in planning the act, prior to the
committal of such act.
o Accessory after the fact: someone who assisted the principal after the act has been
committed.

 Factors affecting criminal behaviour

Psychological
A mental illness, in many forms, can affect a person’s behaviour, such as their thinking
process. This interferes with Mens Rea. This is an important factor in the trial and sentencing
processes.

Social
Family circumstances and influences may lead to an individual committing a crime, such as
growing up with drug dealer parents you are more likely to commit a drug offence.
 Economic
People from disadvantaged backgrounds are more likely to commit a crime and therefore
appear in court more often.

Genetic

Political
Crimes against the state or public order offences may be politically motivated.

Self-Interest
Such as white-collar crimes, which are usually driven by greed or self-interest.

 Crime prevention
Situational: Removing the situation in which someone could commit a crime.
 Increased patrolling police officers
 Installation of alarm systems or CCTV
 Blue-fluorescent lights to prevent shooting up
 Developing alcohol free zones
Social:
 Improving school attendance
 Education programs to teach young people about law
 Early police prevention

 The criminal investigation process

 Police powers
 Search and seizure: power to search people and places and seize and take evidence,
police must have a warrant to search a property for criminal investigations, but
police can search anyone who is reasonably suspected of possessing stolen or illegal
goods.

Search and seizure – police dogs Darby v Director of Public Prosecutions [2004] NSWCA
Under the Police Powers (Drug Detection Dogs) Act 2001 (NSW), police can use ‘sniffer dogs’ to
detect illegal drugs. This however, constitutes a complex legal issue, as highlighted in Darby’s case,
where a question of reasonable grounds and suspicion arises. The dog sniffed Darby, and police
discovered amounts of cannabis and methyl amphetamine on Darby, who was then charged and
tried in the Local Court. The magistrate in the Local Court ruled that the actions of the dog in
sniffing so closely and making contact with Darby constituted an unlawful search. Consequently,
the evidence of finding the substances was not admissible because it was gained following an illegal
search. The case was appealed to
 the Supreme Court which ruled that the magistrate had
errored
 in law and that the dog’s search was not a search and that the police officers’ own search
was legal because it was formed on reasonable grounds on the basis of the information
conveyed by Rocky’s sniffing. Darby then appealed the judgment to the Court of Appeal, in an
attempt to reinstate the magistrate’s original judgment. Two out
 of three justices found that
Rocky’s actions did not, in fact, constitute a search.

 Access to information: The Computerised Operational Policing System (COPS) was

introduced in NSW in 1994 giving police the ability to cross-reference details of all
‘persons of interest’
  Interrogation: Police have the right to ask questions but a suspect need not answer
except in special circumstances, e.g. driver must produce licence on request
 Electronic surveillance: police may tap phones if they obtain a warrant first, however
no warrant is needed in the case of sieges, kidnappings or hostages. There are many
surveillance cameras around highly populated areas which are lowering crime rates
in those areas
 Medical examinations: police can order an arrested person to undergo a medical
examination to obtain DNA samples under the Crimes (Forensic Procedures) Act
2000 (NSW)
 Detention: The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
allows police to keep a suspect for four hours for investigation

Police Detention – The detention of Mohamed Haneef, July 2007

Haneef was detained by police for 14 days without charge upon arrival to Brisbane after being
suspected of being involved in attempted Glasgow terrorist attacks, under the new legislation Anti-
Terrorism Act 2005 (Cth). He was later granted bail however his visa was cancelled for not
passing the character test so he was detained in a migrant detention centre until his hearing. Were
the powers of detention interfering with the individual’s rights? The federal government set up an
inquiry in 2008 to investigate the circumstances around this case. It found that Dr Haneef was
wrongly charged.

This act and case sparked mass debate over whether the legislation violated rights udder the ICCPR.
With a 2011 SMH article describing them as ‘The laws that erode who we are.’

 Fingerprints and photographs: police have the power to take photographs and
fingerprints of arrested people for identification
 Police discretion: police must decide, because of limited resources, which areas to
patrol, which crimes to target and what reports to investigate

Do police have too much power?

A hotly debated issue concerns whether the Law Enforcement (Powers and Responsibilities)
Act 2002 (NSW) gives police too much power.

An increase in police powers raises the issue of the inequality between the rights of the
individual and the police protecting the community by ensuring criminal laws are observed

 Power to move on groups and individuals (since 2014) who are intoxicated → refusal of
order/continue to act in a disorderly way- $1100 fine
Effective: a just outcome- protects the community from drunk and disorderly
conduct
Ineffective: undermines the community trust in the police if there is an inconsistent
application to the provision- e.g: 40% of all fines and charges are, according to the
SMH 2014- “New police ‘drunk and disorderly’ powers penalize Aboriginal,
youth, homeless and mentally ill”

 A 2013 SMH Article by Nicholas Cowdery ‘Focus on police, not the laws,’ expresses
such doubts as the ‘changes to powers of arrest are cause for alarm.’ Such changes
involve the Law Enforcement (Powers and Responsibilities) Amendment (Arrest
 without Warrant) Act 2013, which gives police the power to arrest without a warrant on
the grounds of ‘reasonably necessary.’

 The death of Roberto Curti in 2010 by police Taser, labelled by the coroner as ‘reckless
and excessive.’

For Increased Power Against increased Power

 An increase in crime calls fall more
protection and investigative powers (ABS
2016 compared to 2015 5% increase in
robbery victims, 9% increase in motor
vehicle theft victims)
 With criminals using more complex
technology, police need more power to
catch them
 Wider detention powers in areas of
terrorism protect society, where terrorist
acts can cause mass harm.
 Police powers can infringe of people’s
rights, such as phone tapping and the right
to privacy.
 Wider police power does not alter the
fundamental causes of the crime or prevent
it, such as social and economic influences,
just catches criminals after the fact
 Wider detention powers for terrorist
infringe on human rights set by the ICCPR
 More police, rather than more police
power is needed to improve crime,
preventing its occurrence and offering
further investigative support.

 Reporting crime
The reporting of crime is the first step in the criminal investigation process, where most
crimes are reported by private citizens who either witnessed the crime or were a victim to
the crime.

Crimes go unreported for many reasons including:

 Reporting a crime may bring the victim's own illegal actions to police attention
 Victims may know the alleged offender (feelings of loyalty)
 Feelings of humiliation or shame
 Belief that reporting does not lead to an arrest/conviction (only 52% of those
charged with sexual assault in NSW in 2013 were convicted – BOCSAR)

 Investigating crime
 Gathering evidence: after a crime is discovered, police investigate the matter and further and
gather relevant evidence, e.g. interview witnesses
 Use of technology: police often use technology to gather evidence, e.g. phone taps, video
surveillance, DNA collection
 Search and seizure: police have the power to search people and their belonging or premises
and take away property that is illegally held or is to be used as evidence
 Use of warrants: written authorisation issued by a judge or magistrate which gives the police
power to take the action authorised by it, e.g. arrest warrant, search warrant

 Arrest and charge, summons and warrants

Police may require a person to attend a police station if they have been placed under arrest.
The arrest and charge of an offender is one of the most important steps in the criminal
investigation process. If the proper procedures are not followed, the validity of the entire
case may be jeopardised.

Summons
 A summons is an official legal document which commands the person to whom it is
addressed to appear at court on a particular day to answer claims made against them.

Warrant
An arrest warrant is a written authorisation by a judge or magistrate, which gives the police
the power to arrest the person named.

Arrest
The police are not allowed to detain a person unless they have good reason to do so. The
conditions under which the police may lawfully arrest a person are contained in the Law
Enforcement (Powers and Responsibilities) Act 2002 (NSW) and include:
- catching a suspect committing an offence 

- believing on reasonable grounds that a suspect has committed or is about to commit
an offence 

- where that person has committed a serious indictable offence for which they have
not been tried 

- possessing a warrant for that person’s arrest. 


Criminal Charges
Police exercise discretion when laying criminal charges against an arrested person. This is
decided based on evidence from their investigation.

 Bail or remand
Bail
In more serious matters, once charged the accused may be detained at the police station
where they are fingerprinted and photographed. The police will be required to bring them
before a court or authorised officer as soon as practicable for a bail hearing. At a bail
hearing, the authorised officer will determine whether the accused should be released on bail
or remain in custody until their trial. Bail describes the temporary release of an accused
person awaiting trial, sometimes on particular conditions such as lodgement of a specified
sum of money as a guarantee.

The concept of bail is very important as it abides by the foundation of our court system: that
the accused is innocent before proven guilty. But, some restrictions apply for societal safety.
Bail will be difficult to obtain for certain offences, particularly violent offences or where
there is some risk to the community or risk that the accused may commit another offence.
Where there is any indication that the accused might attempt to flee to another state or
country, bail is unlikely to be granted. Restrictions have also been added to the Bail Act
1978 (NSW) (NOW Bail Act 2013 NSW) against granting bail for certain offences, such as
drug trafficking or serious domestic violence. Known as the ‘presumption against bail’, it
will be up to the accused to prove to the court why bail should not be refused if one of these
offences has been committed. Such presumptions are controversial, as the effect of denying
bail can be severe on an accused person, and may result in an extensive period of custody
before a final trial verdict is reached, with the risk that the accused may in fact be innocent
and eventually found not guilty.

Remand
If bail is denied and the magistrate or authorised officer determines that the accused should
remain in custody until trial, the accused will be held on remand in police custody or at a
remand centre. The accused will remain in detention until the trial date is set, throughout the
 trial and until they are sentenced. If the accused is found guilty and convicted, the time the
offender had spent in remand is usually taken off the total time of their sentence and referred
to as time already served.

However, the Bail Act 2013, which aimed at ‘keeping community safe first’, was the
subject of controversy when a number of high profile accused received bail- e.g Man Manis
(Lindt Cafe Martin Place siege) As of the 2015 amendments in the Bail Act the accused is
required to show cause when charged with certain serious offences. The law has now
been tightened once more as a result of the coronial inquest in regard to Man Manis to make
it more difficult for people with links to violent extremists to be granted bail when charged
with serious criminal offences
Effective: protects society
Ineffective: rights of the accused’s presumption of innocence are not protected

 Detention and interrogation

Detention - when a person is kept for questioning and investigation

Interrogation - formally questioning a suspect

Rights of the Suspects

 Right to silence
 Rights regarding privacy
 Right to communication
 Right to a lawyer
 Illegal evidence, e.g. a confession must be voluntary to be legal

 Criminal trial process

 Court jurisdiction
Jurisdiction is the area over which a court has authority. People in NSW are subject to both
NSW jurisdiction and national jurisdiction, as established by the division of powers in the
constitution.

 The adversary system

The court process in Australia follows the adversarial system of trial, rather than the
inquisitorial process like France an Italy. Adversarial system involves two opposing parties
presided by an impartial judge or magistrate

 Legal personnel
 Magistrate: local court
 Judge
 Police prosecutors
 Director of Public Prosecutions: Article Lynette Daley’s death in 2011 ABC (2016)
heavy criticism due to a failure in prosecuting Attwater and Maris the alleged murderers
 Public Defenders

 Pleas, charge negotiation

When someone charged appears in court they will be asked how they plea, guilty or not
guilty. This determines the next process where a guilty plea will lead straight to sentencing
whilst a not guilty plea goes to trial. Charge negotiation is when the prosecution and the
defence meet before this and agree that the accused will plead guilty for a reduced charge,
this is the main use of discretion in the trial process. Benefits include:
  Saving of time and money
 Reduces trial backlog
 Alleviated sentence for offender

SECTION 35A CRIMES (SENTECING PROCEDURES) ACT 1999 (NSW)

Implications of charge negotiation:
 The accused: pressures them to plead guilty even if they aren’t. May result in a lesser
sentence then they deserved. May plead guilty even if they aren’t to avoid the legal
expenses of a trial.
 The victim: saves them from going through a tough trial, but a lighter sentence may
not result in retribution and therefore not be just.
 Society: quick, much cheaper than trial, no need for witnesses. But a lesser sentence
does not provide justice for society.

Article SMH 2009 – Victims ignored in plea deals: condemns charge negotiation, warning
that accused are negotiating their way out of serious crimes, with no reference to the victim.
‘The number of guilty pleas negotiated has steadily increased in the past decade, occurring
in 62 per cent of charges in higher courts, up from 50 per cent in 1998, figures from the
NSW Bureau of Crime Statistics and Research show.’

Charge negotiation R v Koch (2009)

Koch’s attempted murder of his girlfriend was downgraded to grievous bodily harm as a result of
charge negotiation, despite evidence of him stalking her and planning her murder.
BALANCING NEEDS OF VICTIM AND ACCUSED

 Legal representation
The high court case McInnes v R (1979) established there was no right to a lawyer, but
Dietrich v The Queen (1992) recognised the right to a fair trial, which involves adequate
representation, but only in serious crimes. There is no general right to legal representation.
The Legal Aid Commission (LAC) grants Legal Aid in NSW. To receive their help, you
must pass:
 Means test
 Merit test
 Jurisdiction test

Section 35 of the Legal Aid Commission Act 1979, requires socioeconomic status and
personal circumstances to be considered. 14% of the Australian population fall under the
Organisation for Economic Co-operation and Development (OECD) poverty line, yet
according to the Productivity Commission’s investigation (2014) into the access of justice in
Australia, it was found that only the most financially struggling 8% of households qualify
for court representation by Legal Aid. INEFFECTIVE in achieving justice.
Legal Representation - Dietrich v the Queen (1992)
Dietrich was charged with several drug offences but was refused legal aid unless he pleaded guilty.
During the trial, where he defended himself, he complained that he did not understand the court
process. Dietrich was found guilty and appealed it to the High Court. The High Court found that a
judge should refuse to hear a case where a poor person has been accused of serious crime and been
refused legal aid if injustice is likely to occur. This case established a right to legal
representation, but only for serious crimes, there is no general right to representation as
expressed in McInnes v R (1979).

 Burden and standard of proof

In Australia, there is a presumption of innocence, where it must be proved that the accused
is guilt by the prosecution.

Burden of proof: prosecution

Standard of proof: beyond reasonable doubt

 Use of evidence
Evidence is a criminal trial may be physical such as photographs, video, or DNA or can be
from the testimony of witnesses or experts.

 Police will need to gather enough evidence to support a charge against the accused
in court
 The use of evidence in court is bound by the Evidence Act 1995 (NSW) which
defines when evidence can be admissible

Issues with Evidence

 Problems of DNA evidence- SMH 2010- ‘Blinded by Science’ - jury's
understanding of DNA evidence is minimal → so do not understand or become
overwhelmed by the science

 Defences to criminal charges

 Offenders may have a legal defence available to them
 May adopt a defence that justifies or excuses their actions
 Revolves around the mens rea of the accused
 Effective: Defences achieve justice by considering circumstances behind the
accused’s actions
 Ineffective: can be controversial when a victim is involved

There are 2 main types of defences:

1. Complete Defence: defence is acquitted
2. Partial Defence: led to reduced liability and therefore reduced penalties- e.g:
charged with murder, but with a partial defence (e.g: extreme provocation)
may reduce murder to manslaughter

Complete Defences:
Mental illness
 R v Porter (1936) – not guilty of poisoning/murdering son due to mental illness.
  Daniel Dunn case (2012) – found ‘mentally incompetent to murder’ after murdering
his wife by repeatedly beating her with a hammer, this sparked concerns all over
Australia and saw the NSW Law Reform Commission recommend and oversee
the M’Naughten test for insanity be updated to align with modern research.

Self-defence
 Must follow reasonable force, unlike R v Silva (2015) where excessive force was
used so defence was only considered partial and as a mitigating factor.
 Zecevic v DPP (1987): force used must be proven necessary beyond a reasonable
doubt.

Consent
 R v Mueller (2005) – the accused was employed as a caretaker at a home for the
disabled when he touched the alleged victim’s genitals, arguing she gave consent.
Mueller suffered from autism and the court held that the victim lacked the capacity
to consent, with the NSWCCA ruling that ‘submission is not the same consent.’

Partial Defences:
Provocation
 R v Singh (2012): The accused is sentenced to 8-year imprisonment for
manslaughter, after successful plea of provocation by his wife, the victim.

Substantial impairment of responsibility

 R v Dawes (2004): mother killed her ten-year-old autistic son, received a 5 year
good behaviour bond due to diminished capacity as she was struggling caring for a
disabled child. In 2006, the coroner said that families of disabled kids need help,
and early intervention is key.

 The role of juries

Juries are governed by the Jury Act 1977 (NSW)
 Prosecution and defence have a right to challenge selection of jurors
 Peremptory challenge: based on appearance (age, gender, clothing)- 3 each side
only
 Challenges for cause: believed the juror will be prejudicial (victim of similar
crime, acquainted with the defendant, ineligible)- unlimited, but must show
cause
Issue of Juries:
 Adds to the cost of trial- already expensive ($10,000/day)
 Adds delays/extends length of trial
 The law today is too difficult for juries to fully understand- e.g.: DNA and expert
evidence, understanding of beyond reasonable doubt- jurors get confused
 Do not represent a cross-section of the community
 Social media makes it difficult- issue that the defendant might be able to argue that
they did not receive a fair trial
 Jurors use of electronic media to research the accused- prejudge
 Jurors not concentrating during lengthy trials
Juror Misconduct
After 105 witnesses and three months of evidence, a drug trial costing $1 million was aborted
yesterday when it emerged that five jurors had been playing Sudoku since the trial's second
week. The District Court judge had to discharge jurors. There is no offence under the NSW Jury
Act for playing games or being inattentive to a degree that causes a trial to be abandoned.

"Some of the evidence is rather drawn out, and I find it difficult to maintain my attention the whole
time," the juror told the Australian Associated Press.

NSW Council of Civil Liberties vice-president Pauline Wright:

“They're becoming longer and longer and more and more technical with the surveillance evidence
and all of those sorts of things, so the demands on jurors are much higher and some of the evidence
is, I suppose, not to put it too bluntly, quite boring, but jurors have to remember how hugely
important the role that they're playing is.”
SMH 2008 Article ‘The game's up: jurors playing Sudoku abort trial’

 Jurors visiting the site where alleged offence took place → conducting self-styled
investigation
Juror Misconduct R v Skaf (2005)
Despite warnings, juror misconduct occurs in Australian courts and can be seen in the case R v Skaf
(2005), where Mohammed and Bilal Skaf were trialled for the gang rape of a 16-year-old girl. The
NSW Court of Criminal Appeal overturned these convictions and ordered a retrial due to juror
misconduct where two jurors, unauthorised, visited the crime scene to conduct experiments
concerning lighting.

Effectiveness of Juries:
 Jury reflects community values
 Provides trial by one’s peers
 Safeguard against abuse of power by the state
 Safeguard against bias
 Spreads the responsibility for deciding a verdict
 Constitutional right to a jury for federal crimes

Reform:
 Since 2006- the Juries Amendment Act 2006 brought in majority verdicts
 This means that in a criminal trial the voting can be 11-1 (8 hours have to be passed
for a majority verdict)
 A hung jury occurs when jurors cannot come to a unanimous or majority verdict of
guilty or not guilty- e.g: Robert Xie

Effective: Quick, easy, less pressure on jurors to achieve conformity, negates effect of a
rogue juror, consistent with civil proceedings and most other Australian jurisdictions (NSW
only for murder)

Ineffective: Law Reform Commission Report 2005- against majority verdicts

Verdicts may be reached after insufficient negotiation, contrary to the required standard of
proof, implies a distrust of the jury system, constitutional protection of unanimous jury.

 Sentencing and punishment

 Statutory and judicial guidelines
 Judicial discretion is limited by statutory and judicial guidelines. The Crimes (Sentencing
procedure) Act 1999 (NSW) governs the way judges determine sentences giving general
guidelines for sentencing, but mitigating and aggravating factors will be for the court to
decide. Judicial guidelines reduce inconsistency, so similar cases receive similar
punishment. The first occurrence of sentencing guidelines in NSW was in R v Jurisic
(1998), where Jurisic received 18mths home detention for dangerous driving occasioning
bodily harm, this was appealed, as it was too lenient. He was then sentenced to 2 years
imprisonment, establishing the first guideline sentence for in NSW (culpable driving).

Mandatory sentencing refers to a parliament legislating a specified minimum sentence for

a crime, such as under the Crimes (Sentencing and Procedures) Act 1999 (NSW) where
10 years is the mandatory sentence for aggravated sexual assault. Although this does
create procedural consistency there is debate over whether these sentences remove the
judicature’s power and grants the legislature increased powers, which by the separation of
powers established by the constitution, opens the court system for arbitrary power and
miscarriages of justice. A 2014 ABC article Mandatory sentencing: does it reduce
crime?’ quoted NSW Bar Association president Phillip Boulten SC "There's no
evidence at all that mandatory sentencing ever decreases the amount of crime that's
committed and it has the ability to act unfairly on vulnerable and disadvantaged
groups. It isn't effective, it's not a deterrent, it just leads to more people being locked
up for no good purpose," he said.

 The purposes of punishment

 Deterrence: specific and general
 Retribution
 Rehabilitation
 Incapacitation

 Factors affecting a sentencing decision

The Crimes (Sentencing Procedures) Act 1999 (NSW) sets out aggravating
circumstances, which lead to a heavier penalty for the court and mitigating circumstances,
which lead to a lessened punishment.
 Aggravating: hate crime, previous convictions, gratuitous violence, the age of the
victim.
 Mitigating: provocation, good character, showing remorse, pleading guilty, acting
under duress, mental illness
There is debate about how these circumstances achieve justice for offenders, where those
claiming mental instability or pleading guilty receive a lesser charge even though they still
committed a crime.

2017 The Guardian Article ‘Elijah Doughty: man who ran over Indigenous teenager jailed
for three years’ sentence reduced by 25% because of early guilty plea, outrage from 14 year
old boys family and community.

 The role of the victim in sentencing

The victim has a role in sentencing to show how the crime has personally affected them; this
can be a family member if the victim is deceased. This is achieved through a Victim Impact
Statement, which outlines how they have been affected and will be take into consideration
in the Judge’s sentencing procedure.
 The weight of the statement, as established by R v Slack (2004) is to the court’s discretion.
Whereas, in this case the court couldn’t give the statement weight as it was an unsworn
statement, untested by cross-examination and not in the victim’s own words.

 Appeals
In criminal cases, appeals can be made either against the conviction or the sentence. The
appeal process for sentencing is important as it allows for more consistent results with
higher courts allowed to re-examine a case to ensure there is not a miscarriage of justice.
Sentences can either be reduced or increased, and sentencing guidelines can also be
established through the creation of precedent.

R V Jurisic (1998)

 Types of penalties
Penalty Advantages Disadvantages

No conviction Inexpensive May not rehabilitate or be

 N
recorded retributive
Cautiono May act as a specific deterrent May not rehabilitate or be
retributive
AFine
B
CCriminal Saves court time and money Not a deterrent: SMH 2008
Infringement reported that 32% of CIN
NNotice were overdue as they were just
e ignored and not taking seriously
wHome Detention Good for non-violent offenders May not rehabilitate
s Decreases prison population, and
therefore costs
2 Enables people with family
0 responsibilities to stay at home
1Community Inexpensive May not deter
5 service order Assists the community Offender has opportunity to
Retributive, offender might fix what reoffend
A they ruined e.g. graffiti
rImprisonment Prisoners cannot reoffend while in jail Expensive
Serious punishment for serious crimes May not deter
Imposes hardship on family
Doesn’t always rehabilitate
Diversionary Relatively inexpensive Opportunity to reoffend
programs Aim is to rehabilitate: the first May not deter
offenders of the Drug Court program
MERIT showed that after they completed the
Drug Court program they were less likely to
reoffend
Article describing MERIT as effective at rehabilitation ‘Magistrate backs state-wide rollout of
MERIT program’

 Alternative methods of sentencing

Restorative Justice: most commonly used for young offenders, with the intention of
diverting them away from the courts. The process uses a conference where the offender has
to explain what they have done, how they feel and what they should have done. This also
allows for victims to explain the effect of the crime to their offender.

Circle Sentencing: mostly for Indigenous offenders, breaks down mistrust between
indigenous and the court system. It also provides support for victims, uses respected
members of the Aboriginal community. Less formal, allowing offenders to appreciate the
harm they caused to the victim.

 Post-sentencing considerations
When a person is sent to prison The Department of Corrective Services examines their
security risk.

 Protective custody: those who feel they may be targeted in prison and harmed
 Parole: granted by the Crimes (Sentencing Procedures) Act 1999 (NSW),
prisoners on parole are supervised by the Parole Authority. However there have
been many cases where someone on parole has committed a crime
 Preventative detention and continued detention: the Crimes (Serious Sex
Offenders) Act 2006 (NSW) gives the Supreme Court power to continue a sentence
of someone who is likely to commit further sexual offences. PROTECTING
SOCIETY

The Effectiveness of sentencing and punishment

Effectiveness Ineffectiveness
Statutory/judicial guidelines ensure judge’s Mandatory sentencing doesn’t allow for a
discretion has limits making sentences judge o consider mitigating circumstances
more consistent
The consideration of aggravating and Many punishments don’t deter
mitigating factors helps ensure an
appropriate sentence for the individual
personal circumstances
Victim Impact Statement allows the victim Diversionary programs may result in
to show the effect of the crime and can inconsistent sentences
influence sentencing
Sentencing appeals allow for justice, where Youth justice conferencing has reduced
higher courts can then supervise lower offenders, but rates are still high
courts and create binding precedent
Circle sentencing gives support to Youth justice conferencing doesn’t stop the
Indigenous offenders who may distrust the problem at its root, does little for causes of
court system offence
Protective custody protects offenders from Protective custody restricts opportunities
harm for those to work and access education
Preventative detention and continued Some argue continued detention violates
detention protect society from further harm the rights set out in the ICCPR
 Young offenders
 Age of criminal responsibility
In NSW, a child under ten is regarded too young to form Mens Rea, this is known as doli
incapax. A child might be physically capable of committing a crime, but cannot fully
understand the consequences of their actions, as shown in R v LMW 1998, where LMW a
ten-year-old boy threw Corey Davis a three year old into the river, where he drowned. He
was found not guilty as the defence provided that he had the mental capacity of an 8 year
old and was therefore doli incapax.

This notion is reflected in statue, where under the Children (Criminal Proceedings) Act
1987 (NSW) a child under ten cannot be charged with a criminal offence.

There are many arguments stating that children should face the full extent of the law arguing
doli incapax as old fashioned and irrelevant as modern children are better educated and
more sophisticated. ABC News Article ‘Pressure to force children to face adult charges’
2000. NEEDS OF SOCIETY VS THE INDIVIDUAL

 The rights of children when questioned or arrested

Children have the same rights as adults when question or arrested with the added protections
contained within the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) –
LEPRA.
 Parent/guardian must be noted if a child is taken into custody (s22 Young Offenders
Act 1997 (NSW))
 A child must have an independent adult as a support person during any police
procedure
 Child under ten cannot be strip searched, a child older must have an adult present
 Children in custody must not be kept in the same cell as an adult
 Police cannot take photos, fingerprints, or DNA without a court order

 Children’s Court
Unless diverted by the Young Offenders Act, most charges involving minors are in the
Children’s court. The children’s court is governed by the Children (Criminal Proceedings)
Act 1987 (NSW). It offers special provisions:
 It is a closed court – no public
 The media cannot publish the identity of the offender
 The magistrate is often a specialist in child proceedings
 A conviction is not recorded if the child is under 16
The Children’s court has jurisdiction over most matters except driving offences and serious
indictable offences such as murder.

 Penalties for children

Criminal penalties involving children aim to:
 Keep education uninterrupted
 Keep the child at home
 Not impose penalties higher than those imposed on an adult committing the same
crime.

Penalties can include:

 Dismissal of charges
  Fines
 Bonds
 Probation
 Community service order
 Suspended sentence
 Imprisonment – a control order, which will detain the child in a juvenile detention
centre.
 Referral to a youth justice conference
 Referral to the youth drug and alcohol court

Ineffectiveness of Imprisonment
An Australian Institute of Criminology 2009 report showed the juveniles in NSW were
four times more likely to be imprisoned than those in Victoria, also noting that about
68% of young persons held in detention reoffend within 12 months.

 Alternatives to court
To limit repeat offenders and rehabilitate the youth, diversionary programs are a more
practical and effective way of penalising the youth.

Warnings and Cautions can be issued under the Young Offenders Act 1997 (NSW) to
deter them from reoffending and keep children out of the court system.

A Youth Justice Conference is a type of restorative justice, where offenders and victims
can discuss the harm caused by the offence and establish a plan to compensate or rectify the
damage.

The youth drug and alcohol court program is initiated through the courts but is a
community-based program for young offenders with alcohol and drug abuse. Members live
in a 6-bed unit run by a NGO. They remain there for a month and then enter a rehab
program that offers guidance and support. If they do not comply with the program it will be
seen as a breach of bail and they will be sent back to juvenile detention.

 International crime
 Categories of international crime
International crime is crime committed which has international implications in either
international law or the enforcement of domestic law.

Crimes against the International Community

 Piracy
 War Crimes
 Genocide
 Crimes against humanity
 Aggression and crimes against peace
 Terrorism

Transnational Crimes
 Money laundering
 People smuggling
 Arms trafficking
 Drug trafficking
 Dealing with international crime

Domestic measures:
 The Mutual Assistance in Criminal Matters Act (1987) (Cth) regulates Australia’s
assistance to foreign countries in criminal matters. Restrictions on assistance given
are if the purpose is discriminatory, if the offence is political or if the offence is not
recognised by Australian law.
 Piracy: Crimes Act 1914 (Cth) and Crimes at Sea Act 2000 (Cth)
 War Crimes: War crimes Act 1945 (Cth), defines a war crime as a serious offence
carried out during warlike hostilities, including murder, rape and abduction.
 Case: Polyukhovich v Commonwealth (1991) – Polyukhovich was charged with
war crimes committed during WW2 in Ukraine after moving to Australia and
becoming a citizen. The court ruled that there did not have to be a connection
between him and Australia at the time of the offence for him to be charged under
Australian legislation now.
 Crimes against humanity, genocide: Criminal Code 1995 (Cth)
 Torture: Crimes (Torture) Act 1988 (Cth)
 Terrorism: Criminal Code 1995 (Cth)
 Money laundering: Anti-money Laundering and Counter-Terrorism Financing Act
2006 (Cth)
 People Smuggling: Criminal Code 1995 (Cth)
 Drug Trafficking: Crimes (Traffic in Narcotic and Psychotropic Substances) Act
1990 (Cth)

Treaties:
 Geneva Convention 1949
 UN Convention on Genocide (1948)
 UDHR
 ICCPR
 ICESCR
 CROC

International Measures

 Criminal Tribunals – ICTY and ICTR

 ICC: given power by the Rome Statute 1998, 111 parties, meaning these states
accept the provisions of the ICC jurisdiction
 Sanctions
 Extradition: with the use of bilateral, multilateral treaties and the UN conventions
 Case: The extradition of Jayant Patel (2008) – fraudulent Patel, who was charged
by QLDDPP for 3 counts of manslaughter due to botched surgeries, was extradited
from the US under the Treaty on Extradition between Australia and the US 1974
to be trialled in Australia.
 Case: The Wonderland Club (1988) – an Internet chat room who shared
pornographic pictures of children. With the help of international cooperation, led by
the UK police, members across the world were charged and tried in each country’s
domestic law, including in Australia.