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HSC Legal StudiesIntroduction to Part 1 of the core - Crime

Lesson 1 of 4

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Scope & Sequence• Course website at http://hsclegalcrime.weebly.com/

• CSU NSW HSC Online – Legal Studies • http://hsc.csu.edu.au/legal_studies/

• The Law Handbook • Available through the NSW State Library at

• http://www.legalanswers.sl.nsw.gov.au/guides/law_handbook/index.html

• Go to Course Website for Scope and Sequence for lessons, plus resources used in lessons

(open website)

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Warning Warning Warning

• Some of you may find some of this material offensive

• It does deal with some confronting issues, though it does not contain any graphic images or descriptions

• If this presents any issues, please let me know

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Revision/Background Knowledge Probe• Difference between Law & Customs and Traditions• Law vs Justice• Different Courts –HCA, SC, DC, LC/Magistrates Court• Common Law & Statute• Difference between civil and criminal courts• Individual rights• Law enforcement agencies• Law in Practice – contemporary issues?

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The Nature and Meaning of Crime

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CRIME

• Been around since the beginning of time

• What do you do with people who do the wrong thing?

• What happens when you commit a crime?

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You go here

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CRIME

• Some people really do not want to go to prison, so the law has evolved in response to that

• Keep this is mind when considering crime as a concept

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Nature and Meaning of Crime• Consolidates many of the issues you’ve already covered

CONSIDER

• What are some crimes?

• What makes them a crime?

• Who decides what is a crime?

• What used to be a crime, but now isn’t?

• Why is that?

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Nature and Meaning of Crime

• CRIME DEFINITION

“Crime is a wrong against the community, which attracts communitycondemnation and punishment” (Law Handbook, 2014, p 508)

• c.f (conferre/compare – common legal jargon) with a Civil Wrong?

• What is the difference between a crime and a civil wrong?

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Nature and Meaning of Crime

• Crime is against the COMMUNITY (may result in condemnation/punishment, to stop it from happening again)

• Civil Wrong is against the INDIVIDUAL(may result in compensation/repayment to repay/amend/make up for the wrong)

• Can be some crossover

• Read Ch 16 p 508 Law Handbook before next lesson

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Nature and Meaning of Crime

Knowing what you know about Crime

CONSIDER THIS…

• Should someone be held responsible for something they didn’t do?

• Should someone be held responsible for something they didn’t mean to do?

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Nature and Meaning of Crime

• Actus Reus (the GUILTY ACT) • Mens Rea (the GUILTY MIND)

• You must satisfy both elements to have committed a crime

• From Sir Edward Coke actus non facit reum nisi mens sit rea,

"an act does not make a person guilty unless (their) mind is also guilty“

• Who can think of some issues here?

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The Elements of a Crime

Actus Reus & Mens Rea

The guilty ACT and the guilty MIND

You commit a crime when you do it and when you meant to do it

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Actus reus - You need to have done the act

Murray v R - [2002] HCA 26 (HCA from Qld CCA)

• Facts: wanted deceased out of house, accidentally shot him, just wanted to scare him.

• Held: the 'act' in question should not be viewed too narrowly (eg, the actual pressing of the trigger with the finger). The act is discharging the loaded shotgun, and that comprised a number of different movements: loading the gun, cocking it, presenting it, firing it.

• Outcome- RETRIAL (page 1-2)

• Complex fact scenario – knew each other, been drinking, old gun, previous animosity… (Facts summarissed by HH Justice Callinan at para 104- 113)

(On website)

• Who can think of some issues here?

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Actus reus - You need to have done the act• What about NOT doing something?

• Who can think of some examples here?

• Failure to act or omission may constitute the guilty act

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Mens rea - You need to have meant it

He Kaw Teh v R [1985] HCA 43 (HCA from Vic SC)

• Facts: Heroin found in bag at airport. Said it wasn’t his.• Held: the trial Judge misdirected the Jury • Outcome- APPEALED ALLOWED

• Ratio re: Mens Rea - mens rea occurs when someone knew or reasonably should have known of the thing

(Case on website)

• Who can think of some issues here?

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Strict Liability Offences

What about when you don’t need to mean it?

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Strict Liability Offences

• Who can think of a crime you can commit when you don’t mean to?

• Speeding• WH&S • Pollution

• This means the ACT ALONE is enough to constitute the crime, which means…

• NO MENS REA

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QUICK SUMMARY

To Commit a crime you need to have done it

And

You need to have meant to do it

If either of those things aren’t there, you may have a DEFENCE (which we’ll get to later)

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CausationCause and Effect

Why something happens

CAUSE EFFECT

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Causation

• CAUSE (Defendants action)

• EFFECT (Harm suffered)

• Prosecution (DPP) needs to prove, beyond a reasonable doubt, that the defendants actions were ‘substantial and significant cause’ of the harm (Royall v R [1991] HCA 27 – on website)

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Causation

• Royall - Young lady died after falling from the window of a sixth floor apartment, during an argument with her boyfriend

• Did she fall or was she pushed?• Jury’s focus - whether the defendant’s actions substantially contributed towards the death. • Didn’t work, appeal dismissed

• Famous British casse of R v Blaue [1975] 3 All ER 446 – man stabbed woman, went to hospital, died after refusing a blood transfusion (due to religious beliefs).

• What caused the death? • The stabbing or the refusal?• Was the “chain of causation” broken?• DISMISSED

• Can you think of any other tricky situations?

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Categories of Crime

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Categories of Crime

• There are 7

• Involve the act and also the type of act

• Can anyone guess what they are?

• See http://hsc.csu.edu.au/legal_studies/structure/crime/4076/nature_crime.htm#categories

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Categories of Crime1. Offences against persons: involve the intended causing of injury to a person e.g. assault, manslaughter.

2. Offences Australian against the sovereign: involve criminal acts against the government, e.g.

• Treason involves the commission of acts aimed at bringing down the government or head of state.• Sedition involves the incitement of hatred and/or violence in Australia against the government or

head of state. The Federal Government’s anti-terrorism laws contain sedition provisions. These provisions have attracted quite a deal of debate about the need to balance protection of society against freedom of speech in this post 9/11 world.

3. Economic offences: involve the infliction of economic loss upon the victim, e.g. • Loss or damage to the victim’s property e.g. robbery, larceny• White collar crime e.g. embezzlement, employee from a business, or tax evasion.• Computer crime, e.g. identity theft, unlawful downloading of material which is subject to

copyright such as films, songs, images.

Didn’t PAY $$$ for it!!!

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Categories of Crime4. Drug offences: involve the use, supply and possession of prohibited drugs. Most offences are covered in the Drug Misuse & Trafficking Act 1985 (NSW). For example, possessing or supply prohibited drug, noting the quantity of the drug will, in part, determine the severity of the offence.

5. Driving offences: breaching traffic laws. Many traffic offences are strict liability offences such as speeding. Non-strict liability offences include dangerous driving occasioning death and driving in a manner dangerous to the public, what’s the difference?

6. Public Order offences: involve acts, which the reasonable person would deem unacceptable behaviour. Such offences aim to achieve a measure of social control and cohesion through regulation, e.g. offensive conduct, offensive language.

7. Preliminary Offences: involve attempting to or planning to commit a crime, both of which are themselves criminal acts e.g.

• Attempt, e.g. attempted break, enter and steal, loitering with intent.• Conspiracy involving two or more people agreeing to commit a crime, e.g. planning to rob a bank.• PARTIES (next lesson)

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Categories of Crime

• Persons• Sovereign• Economic• Drug• Driving• Public Order• Preliminary

• Who can make a word out of that?

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Categories of Crime

• PEPS PODDS

• All I could come up with?

• Make up your own!

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Themes and Challenges

• Tend to form the basis for HSC Questions

• Imagine them as an exam question when reviewing notes or perusing the scope & sequence

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For next lesson

• Law Handbook Ch 16 p 508• Prepare a Minute Paper on one or the other

Is there such a thing as a victimless crime?

or

What are some examples of crossover between criminal acts and civil wrongs?

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Here endeth the lesson

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HSC Legal StudiesIntroduction to Part 1 of the core - Crime

Lesson 2 of 4

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Scope and Sequence

http://hsclegalcrime.weebly.com/

Where are we up to?

http://hsclegalcrime.weebly.com/scope--sequencce--lessons.html

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Here

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Revision

• What are three main points from last lesson?

• CRIME v CIVIL WRONG?• Actus Reus • Mens Rea• Strict Liability• Causation• Categories of Crime (PEPPS PODDS)

• What was your muddiest point?

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Revision

• Law Handbook Ch 16 p 508• Prepare a Minute Paper• Is there such a thing as a victimless crime?• What are some examples of crossover between criminal acts and civil

wrongs?

• Just from your desks

• Who wants to go first?

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Summary and Indictable Offences

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Summary and Indictable Offences

• Who’s heard “…it’s an indictment against him or her” ?

• Which one’s worse, do you think?

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Summary?

y

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Indictable

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Summary Offences• Summary (not Summer-y) offences are:

• MINOR

• Usually Dealt with in the Local/Magistrates Court

• Who can think of some examples?

• See SUMMARY OFFENCES ACT 1988 (on Website) See ‘Table of Provisions’

• http://www.austlii.edu.au/au/legis/nsw/consol_act/soa1988189/

• There’s more of them, and they’re dealt with quickly, BECAUSE???

• Less harm to the community

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Indictable Offences• More serious and complex, e.g. murder or sexual assault,

• Usually tried before a Judge and jury in a District Court or higher.

• Are COMMITTED to the superior court (at a Court event called – Committal) by a magistrate who decides if a prima facie case exists.

• What does prima facie mean?

• All matters, no matter how big or small, go through a Magistrate first

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Here’s one I prepared

earlier

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Indictable Offences

• Note the difference between a CHARGE and a COUNT

• A CHARGE is a summary offence, someone is CHARGED by the police

• There are COUNTS on the Indictment

• Just a small technical point

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Parties• The Criminal Justice system only works if you get the right person

• actus reas and mens rea - have done the ACT and MEANT to have done it = crime

• Causation - the defendants actions were ‘substantial and significant cause’ of the harm (what case?)

• Theme of ‘getting it right’ law reflecting moral and ethical standards law balancing rights of victims against offenders and society

• Goes to fairness

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Parties

• Crimes are, in many cases, committed by more than one person

• In many cases, people use other people to avoid liability (i.e getting someone else to take the fall)

• The purpose of party provisions is to make sure people are held to account to the extent of their involvement in a crime

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Parties – 4 Types

• Principal in the first degree: the person(s) directly responsible for the criminal act, e.g. robbed the bank.

• Principal in the second degree: the person, who assists the offender in the first degree to commit the crime, e.g. drove the getaway car.

• Accessory before the fact: the person(s) who helped to plan the crime e.g. stole the bank plans.

• Accessory after the fact: the person(s) who knowingly assists the offender after the crime has been committed, e.g. helped hide the offender from police.

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Parties – 4 Types

• PRINCIPLE IN THE FIRST DEGREE – did it • PRINCIPLE IN THE SECOND DEGREE – helped

• ACCESORY BEFORE THE FACT – planned it before

• ACCESSORY AFTER THE FACT - helped after

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Parties – 2014 HSC Question

(paper is on the website)

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In Summary

• Summary and Indictable offences

• Parties

• QUICK MINUTE PAPER TEST on the MAIN PRINCIPLE of each

• 5 mins, will go around class starting here

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Criminal Behaviour

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Criminal Behaviour

• Why people do things is a complex issue

• Conflicts between needs and wants

• Getting someone to do something can very difficult

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Criminal Behaviour• So why do people break the law?

• Social: People’s attitude to the law and the authority of the state are shaped by society. Upbringing and personal networks can impact on a person’s view of the law.

• What are some social influences that you think might influence one’s view of the law?

• Economic: People can feel “disconnected” from mainstream society and its value. They may feel less respect for the law. Further, poverty, in terms of need can also be a factor, particularly in property offences.

• Is it an excuse to steal because you’re poor?

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Criminal Behaviour - others• Genetic: Controversial theory, rooted in 19th century phrenology studies and more recently

in DNA analysis that suggesting inherited genetic basis to some criminal behaviour - violence. No conclusive evidence to support.

• Are criminals born or made?

• Political or Religious: Some may believe that the law is wrong or unjust and may not feel compelled to comply with the law. Political motives cover the spectrum of criminal behaviour from public order type offences through to violent criminal behaviour.

• Can you think of an example recently in relation to US gay marriage?

• Self interest: Self interest and greed can motivate people to commit crime; it can be seen as an easy road to power or wealth.

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Crime PreventionSituational and Social

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Crime Prevention

• Most responses to crime are reactive.

• What does this mean?

• The Criminal Justice system needs a crime to start (consider - Innocent until proven guilty, Right to Silence)

• Prevention better than a cure?

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Crime Prevention - Situational and Social

• Situational – focusses on the physical scene

• Such as? Around this school or elsewhere?

• But if someone’s going to do it…

• Social – considering the social factors

• poor parenting, truancy, education level and economic disadvantage

• Is the teaching of this subject helping to prevent crime? How?

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Crime Prevention• Goes to themes of compliance and non-compliance and Law reform

• What rules should society place on society for the protection of society?

• Should those laws change? Are we soft on crime? Or are “we” too lenient?

• What happens when you come down too hard on people?

• Often a delicate balancing act

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For next lesson

• Rank the top 3 factors you think lead to criminal behaviour

• List 3 situational crime prevention techniques and your view on their effectiveness?

• Come up with 2 innovative social crime prevention techniques and how and where they might be used?

• Be prepared to give a quick 1 minute speech on what social crime prevention strategy you would focus on if you were the NSW Premier

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Here endeth the lesson

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HSC Legal StudiesIntroduction to Part 1 of the core - Crime

Lesson 3 of 4

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Scope and Sequence

http://hsclegalcrime.weebly.com/

Where are we up to?

http://hsclegalcrime.weebly.com/scope--sequencce--lessons.html

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Revision

• What are three main points from last lesson?

• Summary and Indictable Offences• Parties to a crime• Factors affecting criminal behaviour• Crime Prevention techniques

• What was your muddiest point?

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Revision

• 3 situational crime prevention techniques and your view on their effectiveness?

• 2 innovative social crime prevention techniques and how and where they might be used?

• 1 minute speech on what social crime prevention strategy you would focus on if you were the NSW Premier

• Starting…

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2. The Criminal Investigation Process

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Special Guests from NSW Police Force• Senior Constable Josh Critchly from Balgowlah Station

• Detective Senior Constable Matthew Kilkery from the Criminal Investigation Branch (CIB)

• Old school friends of mine, been with NSW Police for 8 and 15 years respectively

• No they can’t show you their gun

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Special Guests from NSW Police Force• Powers of Police in the Criminal Process

• Reporting and Investigating Crime

• Discretion

• 30 min chat, 5 mins of questions, 25 mins after

• No they can’t show you their gun

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Take it away gentlemen

No they can’t show you their gun

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Thank you very much gentlemen

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2. The Criminal Investigation Process• See NSW Police link on webpage

• Go to ‘About Us’ – ‘Policies Procedures and Legislation’

• See the NSW POLICE FORCE Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence)

• 192 pages

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Next Lesson

• Police Powers (Revision) • Reporting Crime • Investigating Crime • Gathering Evidence & Use of Technology• Arrest and charge, summons, warrants• search and seizure• use of warrants

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Here endeth the lesson

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HSC Legal StudiesIntroduction to Part 1 of the core - Crime

Lesson 4 of 4

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Scope and Sequence

http://hsclegalcrime.weebly.com/

Where are we up to?

http://hsclegalcrime.weebly.com/scope--sequencce--lessons.html

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Revision

• One thing you found interesting from last weeks police presentation

• Does anyone here want to join the police?

• Do you think you now have a better appreciation as to what the police do?

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Police PowersReporting CrimeInvestigating Crime

Gathering Evidence & Use of Technology

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Police Powers

Can the Police do what they want?

Why not?

What can they do?

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Police Powers

Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) and Bail Act. 2013 NSW (both on website)

• The power to arrest (discussed in more detail below)

• The power to issue cautions, warnings and infringement notices in relation to minor offences

• The right to obtain identification information, (name, address and provision of licence)

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Police Powers• The power to stop and detain a person for the purposes of a search if

the police have reasonable grounds to suspect that the person is carrying illegal articles (such as drugs) on their person or in their vehicle.

• The power to enter premises to prevent a breach of the peace, domestic violence or to arrest someone.

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Police Powers• Emergency powers may be authorised by the Commissioner of Police if there is a

large scale public disorder, or the threat of one in the immediate future. Such powers can include the right of police to set up road blocks, declare alcohol free zones, disperse people, and request identification. These powers were given to police by Parliament in response to the Cronulla Riots in December 2005. They are contained in Part 6A of Law Enforcement (Powers and Responsibilities) Act 2002.

• Additionally police can be given special powers via specific legislation

• APEC summit in Sydney in 2007, when access to Sydney’s CBD was cordoned off and monitored by police who also had extraordinary rights to search people.

• This legislation, the APEC Meeting (Police Powers) Act 2007, was seen by the government of the day as a necessary security measure to protect the heads of state attending the summit.

• Opponents of the legislation argued that it handed too much power to police at the expense of individual rights.

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Reporting Crime

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Reporting Crime

• If a tree falls in the forest and there is no one there to hear it, does it make a sound?

• If a crime occurs (actus reas + mens rea) and no one reports it, has it really happened?

• Views on reporting crime?

• Why or why not might that not happen?

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Remembering this

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Reporting Crime

• Citizens have a discretion as to whether to report a crime

• There are numerous factors which impact upon whether a citizen, victim or not, reports a crime to police

• Fear of retribution

• Apathy

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Reporting Crime

• Has anyone here been involved in the criminal process?

• Storytelling from experience at the Office of the Director of Public Prosecutions

• R v Nguyen, Tran, Prabowo – lengthy process (2 years)• R v Dyer – possibly unnecessary charge? (there was no drugs)• R v Vernon John Saunders – career criminal (submissions and SOF on website)

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Links back to themes and challenges from last lesson• the extent to which law reflects moral and ethical standards

• the role of discretion in the criminal justice system

• the extent to which the law balances the rights of victims, offenders and society

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Investigating CrimeGathering Evidence &

Use of Technology

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Investigating Crime• Once police are aware that a crime has allegedly occurred (i.e it’s been reported to them

or they’ve seen it), they will commence the investigation process to establish whether in fact a crime has occurred

• To do this they will need to gather evidence to support an arrest and, if applicable, to substantiate charges being proven in court, beyond a reasonable doubt.

• In many matters, police have discretion as to whether to proceed with an investigation. This judgement will be informed by factors such as the severity, or otherwise, of the alleged crime, available resources and targeted priorities.

• You should note that in some cases, such as a domestic violence complaint, police have no discretion and since 1997 when this reform was introduced, must attend and investigate all domestic violence complaints.

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Investigating Crime - Discretion

• What are some other factors that will affect that discretion?

• Can we prove it?

• Are the witnesses reliable? Have they gone missing? Do they no longer want to proceed? Is it worth it?

• See Guideline 7 at the NSW DPP

• http://www.odpp.nsw.gov.au/prosecution-guidelines

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Gathering Evidence• The principal role of the police in the criminal justice process is to investigate

crime. Central to this function is the gathering of evidence to support the prosecution case for it is the prosecution who carry the burden of proving all elements of the crime beyond a reasonable doubt(i.e can we prove it)

• Evidence must be gathered lawfully otherwise the prosecution is at risk of it not being allowed to be relied upon in any subsequent hearing or trial as a judge may rule that the evidence is inadmissible. For example, police cannot, without a warrant, search premises or listen in to telephone conversations.

• Evidence gathered can take a number of forms, ranging from witness statements, physical objects, forensic evidence, including DNA and fingerprints, to business records.

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Gathering Evidence

• What is it called when someone does something wrong in investigating the crime or collecting evidence?

• Abuse of process / Lack of due process

• The idea being that if you did “this part wrong” we can’t be sure you didn’t do something else wrong, so it is unfair to continue

• Commonly referred to as ‘bombing’ a case

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Use of Technology

• What are some technologies available to police when investigating crime and gathering evidence?

• DNA evidence - regulated by the Crimes (Forensic Procedures) Act 2000

• CCTV - public spaces like railway stations, hotels and banks

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For next lesson

• 1 minute speech on the Powers of the Police in the Criminal Process

• Have a look at the following link on the NSW State Library page• http://www.austlii.edu.au/au/other/liac/hot_topic/hottopic/2002/1/8.html

And answer the following question:

Can DNA profiling get it wrong?

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Here endeth the lesson