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Legal Studies YR 12 Syllabus Notes - Zahia

Part I of the core:


Crime
1. The nature and of crime:
- The meaning of crime:
An act or omission which is harmful to society and punishable by the state.
- Elements of crime:
Mens rea Guilty mind/intention
Actus Reus Guilty Act
Causation The link between the two
Strict Liability offence:
- The only element of crime that must be proven is actus reus, this is
because the person may have had responsibility over someone/something.
Categories of crime:
- Against the person: Murder and Aggravated sexual assault
- Against the sovereign/state: Sedition and Treason
- Economic offences: Computer hacking and tax evasion (white collar)
- Drug offences: Trafficking and use
- Public Order offences: Swearing and Public Nudity
- Driving offences: Speeding and DUI
- Preliminary crimes: Conspiring to commit a crime (conspiracy) and
attempts (e.g. Attempted Murder)
Summary offence:
Is a minor offence, heard in the Local court by a magistrate and has a less
severe penalty e.g. A fine
Indictable offence:
Is a serious offence, heard in the District/Supreme court by a Judge/Jury and
has a severe penalty e.g. Imprisonment.

Legal Studies YR 12 Syllabus Notes - Zahia


Parties to a crime:
- Principal in 1st degree Perpetrator
- Principal in 2nd degree Present at time of act
- Accessory before the act Helped before the crime
- Accessory after the act Helped after the crime
Factors effecting criminal behaviour:
- Genetic e.g. the way your skull is shaped
- Social e.g. who you are surrounded by
- Economic e.g. low socio-economic background
- Psychological e.g. mental illness
- Self Interest e.g. stealing out of greed
- Political e.g. dislike for labour party
Crime prevention:
- Situational Locks, alarms, surveillance
- Social Parenting programs
2. The criminal investigation process:
Police Powers:
- Form a part of the executive arm of government
- Investigate crimes, make arrests if necessary, interrogate suspects and
gather evidence against the accused.
- Main powers are: detain and question suspects, search property and seize
evidence (search and seizure), use reasonable force, use technology to assist
in investigation e.g. phone taps and recommend whether bail should be
granted.
Reporting Crime:
- Crime stoppers encourages community participation in solving crimes.
- People are reluctant to report crimes due to: - Reluctance to appear as a
witness, Fear of consequences, inability to report the crime, the dispute has
already been settled with offender or administrative burden.
Investigating crime:
- Gathering evidence
It is the role of the police to gather evidence to present in court on a latter
day.
It may involve taking witness statements but must happen quickly before
they forget

Legal Studies YR 12 Syllabus Notes - Zahia


Crime scenes and evidence will be preserved until experts arrive
In Situ: Latin term meaning in the place, used to describe where a piece of
evidence is found
Inadmissible evidence:
Evidence that cannot be considered by a judge/jury e.g. obtained without a
warrant.
Use of technology:
- Technology is used by police to gather evidence, it must be extremely
reliable otherwise it risks being inadmissible
- Technology has made checking of criminal databases and DNA/Finger print
databases easier
- Police surveillance are able to record video footage/audio
- Cyber crime units are able to locate e.g. computer hackers through their
activity
DNA Evidence:
- Genetic material e.g. Hair, blood or saliva that can be used to link a suspect
with a crime scene/offence
Search and Seizure:
- Police have power to search and seize without a court warrant
- Police have power to stop and search any person which they believe on
reasonable grounds is carrying anything illegal/stolen.
Use of warrants:
- A warrant is a legal document issued by a magistrate or judge with
authorizes a police officer to perform a particular act e.g. Conduct a search
- Police must give substantial reasons/evidence to the magistrate to justify
the use of a warrant
- Emergency warrants can be obtained over the phone when an officer isnt
able to see a magistrate e.g. at night
- The police must identify to the occupier the reason for the search and a
copy of the warrant
Bail and Remand:
- Bail is the term used for the conditional release of a person until their case
is determined by the courts. Conditions include:
- Forfeiture of passport

Legal Studies YR 12 Syllabus Notes - Zahia


- Requirement to regularly report to police
- Restrictions on domestic travel and association
- Must provide court with a bond A guarantor whom will pay a sum of
money if the accused breaches bail
Remand is when a person accused of a serious crime is held in custody for
the period between when they are charged and when they face trial. Their
time in custody must be as short as possible.
Arrest and charge:
- Police have the power to arrest a person if they:
- Believe that a person has committed or about to commit a crime.
- Witness a person committing a crime
- Have an arrest warrant for the person
Summons:
- A legal document which gives details of the charge, when and where the
charge is to be heard and outlines the consequences of failing to attend.
Detention:
Rights of suspects and interrogation:
- All citizens have the right to remain silent and dont have to answer any
police questions, even if under arrest. This is one of the fundamental
principals of the criminal justice system.
- However, they must produce a form of identification.
- If questioned by a customs officer, they must provide requested information
- All citizens have the right to legal representation.
3. Criminal Trial Process:
Court Jurisdiction:
The Local Court (Magistrates Court)
- Presided over by a magistrate, who is addressed as Your Worship
- Created under the Local Courts Act 1982 (NSW)
- Hears and decides cases that involve summary offences
- Has no Jury
- Hears minor civil offences between $5,000 - $60,000
- Conducts committal hearings (Hears evidence and decides whether or not
the matter should be sent to a higher court)

Legal Studies YR 12 Syllabus Notes - Zahia


The Childrens Court (Local Court)
- Has jurisdiction to hear indictable or summary offences when the accused
is:
Less than 18 years of age when charged
Less than 21 years of age when charged for a crime committed when aged
less than 18
Aims to rehabilitate, the most severe sentencing is confinement in a
detention centre
All childrens courts are closed
District Court:
- Formed by the District Court Act 1975 (NSW)
- Presided by a judge who is referred to as Your Honor
- Covers all indictable offences, excluding:
- Murder, Attempted murder, Serious sexual assault, Treason, Kidnapping
All cases are heard before a judge and jury.
- Hears civil cases between $60,000 - $750,000
- Appeals from the Local Court are heard by the Appellate Division, which are
heard by a single alone judge.
Supreme Court:
- Hears civil cases $750,000+
- Established under the charter of Justice
- Has jurisdiction to hear the most serious indictable offences, as well as
appeals from lower courts
- Consists of a Chief Justice & 7 Senior Justices, Addressed as Your Honor.
High Court
- Highest court in Australia
- No public Jurisdiction No criminal will automatically be heard
To be heard, the appeal must:
- Be original
- Is required in order for justice to be served
- Is required due to confusion between earlier appeals of various courts.
- Hears matters that relate to the constitution.

The adversary system:


- Two opposing parties argue their case before a court, which is presided over

Legal Studies YR 12 Syllabus Notes - Zahia


by a neutral 3rd party judge/magistrate.
Legal Personnel:
- Magistrate: A civil officer or lay judge who administers the law, esp. one
who conducts a court that deals with minor offenses.
- Judge: A public official appointed to decide cases in a court of law.
- Police prosecutor: a lawyer employed by the police to present cases in
district court
- Director of public prosecutions: to institute and conduct, on behalf of the
Crown, prosecutions for indictable offences, appeals in any court and as a
respondent.
- Public Defenders: Barristers independent of the government who appear in
serious criminal matters for clients who have been granted legal aid.
Pleas and charge negotiation:
- Plea: an accused must enter a plea of guilty or not guilty, and a no plea
results in a not guilty plea. A guilty lea is dealt with quickly, no witnesses are
required and the accused is able to get their sentence straight away.
- Plea bargaining- when the accused pleads guilty to a lesser charge if a deal
is agreed upon by their defense team and the prosecution.
- Charge bargaining- when the accused pleads guilty for some of their
offences but not all.
Legal representation and Legal Aid:
- Legal Aid: legal assistance and representation to people free of charge. To
gain legal aid you must three tests: the means test, which accesses the
defendants income; the merit test, which looks at the likelihood of success
for the case; and the jurisdictional test, the case must be in a specific field of
law. Children are automatically granted legal aid.
- Solicitors- are legal practitioners who deal with general legal matters; they
represent the defendant in the Local Court and help assist the barrister.
Burden and Standard of Proof
- The burden of proof is on the prosecution. The accused is regarded as
innocent until proven guilty.
- The standard of proof is beyond reasonable doubt. It is at a high enough
level to stop an innocent person being convicted.
Use of evidence, including witnesses:
-

Legal Studies YR 12 Syllabus Notes - Zahia


Defences to criminal charges:
Pleadings by the accused that attempts to justify or excuse their actions.
- Absolute / Complete Defenses: result in a not guilty verdict.
There are three types: Insanity, Self Defense, automatism, duress, mistake
and necessity.
Qualified / Partial Defenses: result in a lesser sentence.
There are three types: Provocation, Diminished Responsibilities.
The role of juries and verdicts:
- There are 12 people in a jury.
- If the jury cannot reach a verdict it is called a hung jury and is dismissed by
the judge.
- Its role in a criminal case is to listen to the evidence and decide beyond
reasonable doubt the guilt or innocence of the accused.
- In a unanimous verdict, only 11 out of 12 people are required to agree.
- Jurors are selected at random from the electoral role. Lawyers and
convicted criminals are excluded.

4. Sentencing and Punishment:


Statutory and judicial guidelines:
- Judicial guidelines are set by the NSW Court of Criminal Appeal. They are
not binding but their aim is to structure discretion. For example, for the
offence of culpable driving the court has indicated that in the normal course
a custodial sentence should be imposed unless exceptional circumstances
exist.
- Statutory guidelines: A number of acts inform the exercise of judicial
discretion. For example it identifies what might constitute a mitigating or
aggravating circumstance. However, it is left to the exercise of judicial
discretion as to how much weight should be given to such circumstances.
The purposes of punishment:
- Deterrence: The objective of deterrence is to discourage people from
offending in the future. There are two types of deterrence:
*Specific: aims to deter an individual offender from re-offending, e.g. a short
custodial sentence in the hope that this will discourage further criminal
activity.

Legal Studies YR 12 Syllabus Notes - Zahia


* General: aims to send a message to the community that criminal behavior
is unacceptable and will be punished: for example the imposition of a
custodial sentence for a particular crime, whether of short or long duration.
This objective is that by making an example of a particular offender, the
community will take note and be more willing to comply with the law.
- Retribution:
Retribution encompasses the notion that the punishment should fit the
crime. The judge or magistrate will consider, as is always the case with
respect to sentencing, the impact of the crime upon the victim, their family
and the community. Lengthy custodial sentences are an example of a
punishment aimed at retribution.
- Rehabilitation (reform):
The aim of rehabilitation is to change the behaviour of the offender so that
they will not re-offend.
- Incapacitation:
Aims to protect society by removing the offender from society. This is a
relevant objective if the crime is of a particularly heinous nature and/or the
offender, based on their criminal history, has shown themselves to be
incapable of rehabilitation and therefore the offender, if at large, would pose
a risk to society. Lengthy custodial sentences, again.
Factors affecting a sentencing decision:
- Aggravating factors: Increase the offenders criminal culpability and
therefore are likely to result in the offender receiving a more severe
punishment e.g. was the crime committed in company? was there gratuitous
violence? was the victim a child?
- Mitigating factors: Reduce the offenders criminal culpability and are then
likely to result in the offender receiving a less severe punishment, e.g.
whether the offender has pleaded guilty or whether the defendants actions
were in some way provoked by the victim.
The role of the victim in sentencing:
- Since 1996 in NSW, victims are permitted to give a victims impact
statement to the Court. This gives victims a voice in the judicial process. It is
a matter of judicial discretion as to what weight, if any, the judge will give
the victims impact statement.

Legal Studies YR 12 Syllabus Notes - Zahia


Appeals:
- A defendant has the right to appeal to a higher court against the severity of
their sentence, also if it is claimed by the defendant that an error of law was
made in the original hearing, or an error partly based on the facts and partly
grounded in law.
- The prosecution can also appeal if they believe that the sentence imposed
is too lenient. The prosecution must consider very carefully whether to bring
such an appeal, balancing the public interest and the further expenditure of
public monies.

Types of penalties:
1. No Conviction Recorded:
While the offence is found proved, no conviction is recorded by the court
and hence the offender does not receive a criminal record. Usually, this
penalty is only used in the case of first time offenders for summary offences.
2. Caution:
Police have the power to caution children and young persons in relation
to non violent and less serious offences. Adults also can be cautioned for
minor drug offences. A caution is informally recorded on the persons record.
3. Fine:
- Is a monetary penalty imposed by the court. The revenue raised goes to the
State
- Is the most extensively imposed penalty
- Fines must be paid within 28 days of the courts order although the
defendant can apply through the Registrar of the court for time to pay the
fine.
4. Bond: (also known as recognisances).
- A court imposed bond places limits upon an offenders behaviour for a
specified period of time. The bonds usually require that the offender be of
good behaviour and may require that the offender do other things such as
attend drug and alcohol counselling.

Legal Studies YR 12 Syllabus Notes - Zahia


- If an offender re-offends during the term of the bond they will be brought
back before the court and run the risk of having the bond revoked and a
more serious penalty imposed for the original offence.
5. Suspended Sentence:
- Provides the offender with the opportunity to rehabilitate by maintaining
their community ties, while at the same time, sending a deterrent message
signaling just how close the offender has come to a custodial sentence.
6. Probation:
- This places the offender under the supervision and guidance of the NSW
Probation Service. They have regular scheduled meetings with their
probation officer.
- If the offender abides by the conditions of their probation, the court will not
take any further action against them.
- If, however, the offender does not comply with the conditions of the order
for the term decided by the court, they could receive a custodial sentence

7. Criminal Infringement Notice (CIN):


Police have the power to issue on the spot fines for minor offences
including:
1. Stealing less than $200
2. Obstructing traffic
3. Obtaining benefit by deception
4. Unlawful entry into a car or boat
5. Offensive language.
These on the spot fines are called criminal infringement notices (CIN). If
the CIN is paid a criminal record does not result. The offender still has the
option of having the matter dealt with in court where, if proven, it will result
in the offender receiving a criminal record.
8. Penalty Units:

Legal Studies YR 12 Syllabus Notes - Zahia


- Have relevance when fines are being imposed as the form of punishment. A
penalty unit equates to a fixed sum of money, currently $110. This means
that fines are described in statute in terms of the maximum number of
penalty units that might be imposed. It also means that if this amount is
changed then only one change to one section of statute needs to be changed
that is then referenced by all others where fines are included.
9. Community Service Orders (CSO):
- These involve the offender being ordered to perform work in the
community. Their aim is to rehabilitate the offender.
- Offenders must consent to a CSO and must also be assessed as suitable by
the NSW Probation Service
- No more than 500 hours of CSO can be ordered by the court at the one
time. If the work is not performed the offender can be fined or imprisoned.
10. Home Detention:
- A Court can impose a sentence for a period of up to 18 months which
requires that the offender stay at home. They are monitored via an electronic
device worn on their leg. They are banned from any drug or alcohol use and
random tests are conducted.

11. Periodic Detention:


- This is also known as weekend detention.
- This sentence allows an offender to serve their sentence over weekends
(from Friday evening until Sunday afternoon). During that time prisoners
perform community service. The perceived benefits of this sentence are that
offenders can maintain their link with family, employment and society, and in
this way it is hoped that they would be able to be rehabilitated into law
abiding citizens.
12. Intensive correction order (ICO)
Intensive correction order (ICO) is a new sentencing option available from
October 2010 instead of periodic detention. This order provides for strict
supervision by Corrective Services NSW for a period of up to 2 years. The

Legal Studies YR 12 Syllabus Notes - Zahia


offender will remain in the community and can be subject to the following
conditions:
* Strict curfews and association restrictions
* 24/7 electronic monitoring
* Random breath tests and urine analysis
* Completion of mandatory community service
* Restrictions on travel and behaviour
* Mandatory participation in rehabilitation and education programs.
13. Forfeiture of assets:
In some circumstances, forfeiture of assets can be imposed as a sanction
in response to criminal activities. Specific legislation sets out in what
circumstances the State can recover assets which may have been have been
the result of criminal activity.

14. Imprisonment:
- Sentencing an offender to a full time period of imprisonment is the harshest
penalty which a court can impose.
- It is a matter for the judge or magistrate to interpret legislation and
determine the actual length of a sentence.
A judge or magistrate may also set a non-parole period. Parole is where the
offender may be released from prison prior to the expiration of their fixed
term on the basis that they have been of good behaviour while serving their
prison term, and it is considered that this good behaviour will continue out of
prison, subject to the supervision of the NSW Probation and Parole Service.

15. Diversionary Programs


Diversionary programs aim to rehabilitate the offender by making it a
requirement of their sentence that they undertake a specific program such
as a treatment for drug or alcohol addiction.

Legal Studies YR 12 Syllabus Notes - Zahia

Alternative methods of sentencing:


- Circle Sentencing is available to some Indigenous offenders, depending on
the nature of their offence and aims to enhance their respect for, and thus
their compliance with, the law by incorporating aspects of Aboriginal
Customary Law.
- The court comprises a magistrate, police prosecutor, the victim and local
Aboriginal Elders, all of whom have a voice in relation to the sentencing of
the offender.
- One of the benefits of the Circle Court is that the accused has to face the
consequence of their actions, particularly by hearing from the victim directly.
- Restorative Justice implies the notion of the offender making amends to the
victim. It refers to approaches to sentencing and punishment which aim to
get the offender to take responsibility for their crime through the process of
direct interaction with the victim via a conference. This objective facilitates
the victim being given a voice and also hearing the offender expresses
remorse and apologise for their actions E.g. Youth Justice Conferencing

Post-sentencing considerations:
- Security classification: NSW prisons are classified according to their level of
security. Offenders are given a security ranking determined largely by the
severity of their crime. - The NSW Department of Corrective Services is
responsible for the management of inmates and prisons.
- There are three basic security levels: Maximum, medium and minimum.
- Protective Custody: to the need to protect those prisoners who are
vulnerable to attack from fellow inmates. Prisoners in protective custody are
segregated from the mainstream prison population, e.g. child sex offenders,
police serving prison terms.
- Parole: Referred to in previous discussion on parole under the heading
imprisonment. A person will only be assessed as eligible for parole if they are
judged as not posing a risk to society. The aim of parole is to encourage
prisoners to make the most of opportunities for rehabilitation with the
incentive of early release.
- Preventative Detention: The notion of preventative detention is a

Legal Studies YR 12 Syllabus Notes - Zahia


controversial one as it violates the right to freedom from arbitrary detention.
Historically, people could only have their liberty infringed upon arrest.
- Continued Detention: In a similar vein to preventative detention, continued
detention is a controversial aspect of criminal justice in NSW and some other
state jurisdictions.
- The Supreme Court, on application by the NSW Attorney General, can order
the continued detention of a serious sex offender or extended supervision of
this offender upon release.
- Sexual Offenders Registration: The names of serious sex offenders are
placed on a register to which police have access. Offenders must keep police
informed of their details.
- Deportation: If a permanent or non-permanent resident receives a custodial
sentence of 12 months or more and they have been resident in Australia for
less than 10 years, they may be forcibly removed, i.e. deported from
Australia on the basis that they fail the character test prescribed in the
Migration Act.
5. Young Offenders
Age of criminal responsibility:
- In NSW the age of criminal responsibility is defined by statute as 10 years
of age
- This means that a child under the age of 10 years cannot be prosecuted for
a crime. The basis of this is the recognition of their inability to differentiate
from right and wrong, known as doli incapax (incapable of wrong)
The rights of children when questioned or arrested:
- Police are entitled to require that a young person provide them with name,
address and proof of identity.
- A child or young person cannot be taken to the police station unless they
are under arrest. If arrested, the childs parents or guardian must be
contacted.
- Children are permitted to exercise their right to silence, apart from
providing name, address and proof of identity
- do not have to participate in a record of interview with police.
- If a young person is the owner of a motor vehicle, they are required by law
to tell police the name and address of the driver of the vehicle if it is alleged
that the driver committed a driving offence.

Legal Studies YR 12 Syllabus Notes - Zahia


- A child cannot be questioned by police for more than two hours at any one
time.

Childrens Court procedures and operation:


- The court only hears proceedings for offenders under 18 years or for those
who are still under 21 years and where less than 18 years old when charged
- Is a closed court and proceedings aim to be less formal
- Presided over by a Magistrate; there is no jury
- Rehabilitation is the primary purpose of sentencing
- The names of children and young people appearing in the Childrens Court
are not published; except under very special circumstance the court may
grant permission for names to be published.

Penalties for children:


- If a plea of guilty is entered or the young person is found guilty of a crime,
the following penalties may be imposed, depending on the factual
circumstances of the crime and of the young person in terms of a their lack
of a previous record:
o A caution may be issued
o The offender may be referred to a Youth Justice Conference
o Depending on the offenders ability to pay they may be fined to a
maximum of $1000
o Community Service may be ordered; up to 100 hours for offenders under
16 years and up to 250 hours for those older than 16
o The may be placed on a good behaviour bond
o They may be placed on a control order to be served in a Juvenile Detention
facility for a maximum of two years for one offence and three years in total,
if more than one offence is involved.
Alternatives to court:
- The provisions of the Young Offenders Act 1997 (NSW) clearly reflect the
spirit of the United Nations Conventions on the Rights of the Child (CROC) to
which Australia became a signatory in 1990.
- Article 40(3)(b) of CROC states that wherever appropriate and desirable,
there should be measures for dealing with such children i.e. children who
have broken the law, without resorting to judicial proceedings, providing that
human rights and legal safeguards are fully respected.
- You will recall that for summary and less serious indictable offences, one of

Legal Studies YR 12 Syllabus Notes - Zahia


the main focuses of the Young Offenders Act 1997 (NSW) is the diversion of
young offenders from the courts via a system of warnings, cautions and
youth justice conferencing. In line with CROC this act focuses upon the
rehabilitation of young offenders so that they can once again, as outlined in
Article 40(1) of CROC, assume a constructive role in society.
6. International Crime
Categories of international crime:
- Crimes against the international community: these are crimes, so
recognised because of their heinous nature, by the majority of countries in
the world and are ratified by numerous conventions and treaties e.g.
genocide.
- Transnational Crimes: these are crimes which involve breaking the law in
more than one country. These crimes cross national borders, e.g. drug
trafficking, people smuggling.
Dealing with international crime:
- Domestic and international measures and limitations: International crime
presents particular problems. Ease of travel between nation states and
technological developments have made it increasingly difficult for such
crimes to be investigated. Further, enforcement is an issue, due to the notion
of state sovereignty which limits the jurisdiction of a domestic countrys laws
and legal system. Attempts to tackle these issues include the Federal
governments child sex tourism legislation Crimes ( Child Sex Tourism)
Amendment Act 1914 CTH which gives jurisdiction to Australian courts to
prosecute offenders who commit child sex offences overseas.

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