1. Criminal Trial Process:
1.1. Court Jurisdiction: NSW Court system is hierarchical and therefore provides opportunities for appeal. Most criminal cases begin in the local Court, has original jurisdiction.
1.2. The Adversary System: Based on a two-sided structure of opposing parties that present their opinion in front of a neutral third party, (judge and/or Juries) who will determine guilt or innocence beyond reasonable doubt based on the evidence presented.
1.3. Legal Personnel:
1.3.1. Magistrate: Presides over Local Court hearings and committal hearings.
1.3.2. Judge: Presides over all other criminal court hearing. They determine the sentence to be given to the accused upon the jury returning a finding of guilty.
1.3.3. Police: Federal and state police are responsible for investigating crimes.
1.3.4. Police Prosecutor: Represents the state (or 'crown') and brings legal action against the accused. They are members of the NSW Police Force with special legal training. Responsible for beginning the investigation of a criminal case.
1.3.5. Director of Public Prosecutions: Indictable offences (and some summary) are prosecuted by the NSW office for the Director of Public Prosecutions (DPP).
1.3.6. Public Defenders: Barristers who are independent from the government. They appear in serious indictable matters to defend clients who have been granted legal aid.
1.3.7. Jury: Group of 12 adult members of the community who determine guilt or innocence based upon the evidence presented at trial.
1.3.8. Victim: Since 1996 in NSW victims are permitted to give a 'victim's impact statement to the Court. Gives victims a voice in the judicial process.
1.4. Pleas: After a person is charged with an offence, they must enter a plea of wither guilty or not guilty.
1.4.1. Guilty: If the accused pleads guilty the matter will be dealt quicker, skipping initial trial process and go to sentencing hearing at a higher court.
1.4.2. Not Guilty: If the accused pleads not guilty and is late found guilty, their sentence may be affected.
1.5. Not guilty: If the accused pleads not guilty and is late found guilty, their sentence may be affected.
1.6. Charge Negotiation: A Process where the accused agrees with the prosecution to plead guilty to a particular charge/s.
1.7. Legal Representation & Legal Aid: Defendants have a right to a fair trial and legal representation is integral to this. Legal aid is available to people who can't afford legal representation. Role of legal aid is to provide advice and education. e.g. case McInnis v R (1979) by the high court.
1.8. Burden of Proof: The prosecution has the burden to prove that the accused did commit the offence they have been charged with.
1.9. Standard of Proof: The prosecution must prove this beyond reasonable doubt.
1.10. Use of Evidence: 'Evidence Act 1995 (NSW). For evidence to be admissible in court, it needs to have been lawfully obtained by investigating police. Evidence will be deemed inadmissible if the judge sees it as irrelevant, not direct, hearsay or opinion based.
1.11. Defences to Criminal Charges:
1.11.1. Complete Defences:
1.11.1.1. Self defence: Defendant must prove that they believed upon reasonable grounds that it was necessary in self defence to do what they did.
1.11.1.2. Mental illness/insanity: Results in the accused being acquitted however they are nor fee to go.
1.11.1.3. Consent: Commonly raised in sexual assault cases
1.11.1.4. Duress: Must prove that they committed the crime against their own free will and did o because of a genuine threat or intimidation, e.g. their own or someone else's life was in peril.
1.11.1.5. Necessity: Defendant must prove that the crime was committed only to prevent the commission or act of a more serious crime.
1.11.1.6. Automatism/accident: Must proven fault which caused the accident.
1.12. The Role of Juries and Verdict:
1.12.1. Juries: Are used to hear trials for most indictable offences where the defendant has entered a 'not guilty' plea.They may be used in the district or supreme courts.
1.12.2. Verdict: The decision of a jury is referred to as a verdict. The jury amendment (verdict) Act 2006 (NSW) was passed to allow majority verdicts, in cases where reasonable time for deliberation has passed and an unanimous verdict won't be reached.
2. Sentencing and Punishment:
2.1. Statutory and Judicial Guidelines: Judge or magistrate will consider the evidence and must then reach a decision. Judges do not have unlimited discretion to determine punishment.
2.1.1. Judicial Guidelines: Guideline judgments from superior courts aim to promote uniformity in the sentencing process.
2.2. Purposes of Punishment: Section 3A Crimes (Sentencing Procedures) Act 1999.
2.2.1. Rehabilitation: The process of reforming the behaviour of an accused person through education, physical or mental treatment.
2.2.2. Deterrence: Specific (aimed at the individual offender) and general (aimed at society as a whole)
2.2.3. Retribution: Where the sentence takes into account the effect of the crime upon the victim and society as a whole to ensure that the punishment fits and is proportionate the crime.
2.2.4. Incapacitation: Where the sentence has the effect of removing the offender from society, taking and keeping the offender in custody - imprisonment.
2.3. Factors affecting a Sentencing Decision:
2.3.1. Objective Feature: Nature of the Offence. These features are presented by the prosecution in an attempt to reinforce the severity of the crime, the need for a harsh penalty to ensure the protection of society as whole.
2.3.2. Subjective Feature: Related to the offender. These features are often presented by the defence in an attempt to explain the reasons behind the behaviour of the offender.
2.3.3. The offenders criminal history or whether or not they have taken any steps since the commission of the crime to change their lives.
2.4. Role of Victim in Sentencing Appeals: Victims of crime in NSW have a Charter of Victims Rights to protect and promote their rights. NSW Government has recently amended the Charter, strengthening the way rights are expressed.
2.5. Types of Penalties:
2.5.1. Custodial:
2.5.1.1. Periodic 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.
2.5.1.2. Imprisonment: Sentencing an offender to a full period of imprisonment is the harshest penalty which a court can impose.
2.5.2. Non-Custodial:
2.5.2.1. No Conviction Recorded: Whilst the offence is found proved, no conviction is recorded by the Court and hence the offender doesn't receive a criminal record.
2.5.2.2. Fine: Is a monetary penalty imposed by the court. Fines are frequent;y used sentencing options in Australia.
2.5.2.3. Bond: A court imposed bond places limits upon an offender's behaviour for a specified period of time.
2.5.2.4. Probation Order: Places the offender under the supervision and guidance of the NSW Probation Service.
2.5.2.5. Community Service Orders (CSO): Involve the offender being ordered to perform work in the community.
2.6. Alternatives Methods of Sentencing:
2.6.1. Diversion Programs, Traffic Offender Intervention Program
2.6.2. Magistrate Early Referral into Treatment Program (MERIT): Special program based in Local Courts that provides the opportunity for adult defendants with drug problems to work, on a voluntary basis, towards rehabilitation as part of the bail process.
2.7. Post-sentencing Considerations:
2.7.1. Protective custody: Under 'Crimes (Administration of Sentences) Act 1999 (NSW) prisoners who feel that they are in danger from other prisoners can apply to be placed into protective custody.
2.7.2. Parole: Prisoners under full-time imprisonment for less than three years are released on parole at the end of the non-parole period.
2.7.3. Preventative detention and continued Detention: Aimed to offenders whose history indicates that they have entrenched criminal behaviours.
2.7.4. Sexual Offenders Registration: 'Serious sex offenders' names are placed on a register with access by the police .
2.7.5. Deportation: Non-citizens who are subject to a prison sentence of 12 months or more and have been resident in Australia for less than ten years automatically fail the character test in the 'Migration Act 1958 (cwlth).
3. Crime:
3.1. Crime: Is an act or an omission (failure to act) committed against the community at large and punishable by the state.
3.2. Causation: As the existence of a 'cause link' between act and outcome.
4. Nature of Crime:
4.1. Elements of Crime:
4.1.1. Actus Reus: Guilty action. This means the voluntary commission of an act or the voluntary commission of a duty that breaks the law.
4.1.2. Mens Rea: "The guilty min, the intention to commit the crime, including recklessness or gross negligence.
4.1.3. Strict Liability Offence: Where 'mens rea' is not required, the act of committing an unlawful act in enough to find the accused guilty.
4.2. Categories of Crime:
4.2.1. Offence Against the Person: Involves the intended causing of injury to a person. e.g. assault, manslaughter
4.2.2. Offences Against the Sovereign/State: Involves criminal act against the government.
4.2.2.1. Treason: Involves the commission of acts aimed at bringing down the government/head of state.
4.2.2.2. Sedition: The incitement of hatred and/or violence against the government/head of state.
4.2.3. Economic Offences: The infliction of economic loss upon the victim.
4.2.3.1. 1. Loss or damage to the victim's property e.g. robbery
4.2.3.2. 2. White collar crime like embezzlement (the taking of money by an employee from a business) or tax evasion
4.2.3.3. 3. Computer offences e.g. hacking, internet piracy, data modification, copyright infringement
4.2.4. Drug Offences: The use, supply and possession of prohibited drugs. Most offences are covered in the 'Drug Misuse & Trafficking Act 1985 (NSW)'
4.2.4.1. E.g. Possess or supply prohibited drug: The quantity of the drug will determine the severity of the offence
4.2.5. Public Order Offences: Involves act which the 'reasonable person' would deem unacceptable behaviour.
4.2.5.1. E.g. Offences including offensive language in public, nudity. The existence of such offences demonstrates how moral and social views influence law.
4.2.6. Preliminary Crimes: Attempting to or planning to commit a crime, both of which are criminal acts.
4.2.6.1. 1. Attempts: Attempted break enter and steal, loitering with intent
4.2.6.2. 2. Conspiracy must involve two or more people agreeing to commit a crime, e.g. planning to rob a bank
4.3. Partial Defences: NSW, only apply to the crime of murder, and don't apply to lesser charges such as assault. Provocation in relation to assault can only be used as a mitigating factor in sentencing to reduce punishment.
4.3.1. Provocation: Must prove that their actions were directly provoked by the victim on an objective test which is that the victim's actions would have caused any reasonable person to act in a like manner.
4.4. Summary and Indictable Offences:
4.4.1. Summary (Minor): Represent the most common type of summary offences. The majority of summary offences are contained in the 'Summary Offences Act 1988 (NSW)'. Often referred to 'public order offences'
4.4.2. Indictable (Major): More serious and complex and are usually heard before a Judge and jury in a District court or higher.
4.5. Factors Affecting Criminal Behaviour:
4.5.1. Psychological: Mental illness which will affect a person's behaviour either in committing a crime or at the time of their arrest.
4.5.2. Social: People, and in particular, their attitude to the law and the authority of the state, are shaped in part by the society they live in.
4.5.3. Economic: People who suffer economic disadvantage can feel 'disconnected' from main stream society and its value and hence may feel less respect for the law.
4.5.4. Genetic: Originating in 19th century phrenology studies and more recently in DNA analysis.
4.5.5. Political: Individuals and organisations may oppose certain criminal laws on political grounds.
4.5.6. Self Interest: Self interest and greed can motivate people to commit crime. It can be seen as an easy road to power and /or wealth.
4.6. Parties to a Crime: Criminal don't always act alone. Persons involved in a crime, are referred to as parties to a crime. The punishment such persons receive from the court, will depend upon the extent to which they were involved in the crime.. The more involved the party to the crime is, the greater their punishment.
4.6.1. Principal in the First Degree: The person(s) directly responsible for the criminal act. E.g. Robbed the bank
4.6.2. Principal in the Second Degree: The person(s) ho assists the principal in the first degree to commit the crime. E.g. drove the getaway car
4.6.3. Accessory Before the Fact: The person(s) who help to plan the crime. E.g. stole the bank plans
4.6.4. 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
4.7. Crime Prevention:
4.7.1. Situational: Focuses on the physical scene of the crime. Aims to either make the crime more difficult to be committed, increases the likelihood of detention. E.g. a house alarm, security door
4.7.2. Social: Aims to break the cycle of crime by targeting social factors, such as poor parenting, low level of education, and economic disadvantages, all of which increase the likelihood of criminal activity occurring. The provision for youth Justice Conferences in the Young Offenders Act 1997 (NSW). Strategies: E.g. Drugs and Alcohol programs