LEGAL STUDIES STUDY NOTES

TOPIC 1 – CRIME

Topics

1. Key Legal Concepts and Features of the Legal System

2. Legal Issues and Remedies

3. Morality, Ethics and Commitment to the Law

4. Effectiveness of the Law:

- for individuals
- for society

5. Law Reform

PAST PAPERS

2008
- summary/indictable
- legal aid
- types of penalties

2007
- elements of a crime
- conditions that led to law reform
- purposes of punishment

2006
- types of international crime
- role of the sentencing process in balancing community/offenders rights
- effectiveness of legal measures in achieving justice

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Term
“Victimless” Crimes
Acquittal
Aggravating Factors
Bail
Balance of probabilities
Beyond reasonable doubt
Committal Hearing
Community Service Order
(CSO)
Complete Defences
Concurrent powers
Corporal Punishment
Customary Law
Declaration
Discretionary sentencing
Division of power
Doli incapax
Duress
Extradition
General deterrence
Habeus corpus
Injunction
Intra vires
Jus cogens
Mandatory sentencing
Mitigating Factors
Natural Justice (procedural
fairness)
Natural Law
Non-parole period
Objective Factors (in
Important Terms
Meaning
Crimes in which the perpetrator is a complicit ‘victim’. Includes illegal
gambling, prostitution and drug use.
Dropping of charges and overturning of a criminal conviction.
Factors present in a crime which lead to the consideration of a more serious
sentence by a judge.
Agreement to appear in court on a specified date in return for release from
gaol. Can be conditional or unconditional.
Standard of proof for civil matters
Standard of proof required in criminal cases.
Preliminary hearing for indictable offences. See ‘Prima vacie’
A type of bond or Court Order requiring an offender to engage in
community service for a predetermined number of hours as a penalty.
Defences which if successful lead to acquittal
Powers shared by federal and state governments eg health, education,
transport
Punishments involving physical brutality
Type of law arising from continual customary practices over time eg
indigenous law
Statement carrying moral force but which is not legally enforceable
As opposed to mandatory sentencing, allows for discretion of judges in
determining type and length of sentence
Allocation of power to different levels of government – federal/state
Incapability of forming intent by virtue of age. In NSW applicable to
children under 14
Mental pressure applied which forces a person to act against their will
The removal of a person from one jurisdiction to another for the reason of
facing a criminal proceeding
The objective of punishment to stop others from committing similar
offences
No person can be detained without reason
Court order stopping or restraining a party from engaging in a particular
action or activity
‘within the power’
Notion that no federal laws should be inconsistent with international law.
That if new international law is enshrined, all contradictory treaties are
nullified.
Sentencing that removes judicial discretion
Those factors that reduced the severity of a sentence
Right to a fair hearing and for a case to be heard by an independent arbiter
(eg without bias)
Law arising from divine mandate, now mostly defunct
Court determined period of imprisonment that must be served by the
offender before parole can be considered
The circumstances of the offence, the facts of the case.
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sentencing)
Ombudsman Independent administrative office responsible for investigating
administrative breaches and complaints
Partial Defence A defence which if successful will reduce a charge of murder to
manslaughter.
Periodic Detention Form of punishment consisting of weekend imprisonment
Plaintiff Civil complainant
Plea Bargaining Process by which the police ‘trade’ a lesser charge in exchange for a guilty
plea
Preliminary Crimes Crimes that a person has not actually committed but have planned and
prepared for, including attempts, conspiracy and incitement.
Prima Facie Magistrate decides at Committal Hearing whether there is enough evidence
for a case to process to trial in a higher court. Heard at LC. For indictable
offences.
Private Law/Civil Law Law applying between private citizens
Ratio Decidendi ‘Reason for deciding’, justification of decision by the judge
Regulatory offences offences carrying a mandatory penalty in which mens rea is not considered
Reintegrative shaming A form of punishment that involves either face-to-face meeting with the
victim or the use of Victim Impact Statements
Remand To be held in custody pending trial
Retribution Revenge, an element considered in sentencing
Rule of law Notion that no one is above the law, all are equal regardless
Separation of powers Separation of powers between legislature, judiciary and executive
Specific deterrence An objective of punishment to discourage the individual from committing
crimes in the future (recidivism)
Stare decisis Upholding of precedence
Subjective Features Circumstances of the offender that are considered in sentencing such as
age, gender, socio-economic background etc
Subpoena Court order for person to attend a court for hearing, usually as a witness.
Suffrage The right of all people to vote
Tort A civil wrong concerning the breach of a duty including defamation,
negligence, nuisance and trespass.
Treason Indictable offences that undermine the government and the Crown
Ultra vires ‘beyond the power’ to act. Eg legislating on foreign policy is ultra vires of
the NSW gov.
VIS Formal written statement made by the victim articulating the effects the
crime had on them. It is read out in court and can affect sentencing as well
as potential rehabilitation allowing for reintegrative shaming.
White Collar Crime Type of economic offence committed by middle class or business people
including fraud, embezzlement etc.

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 1. Key Legal Concepts and Features of the Legal System

Crime: a legal breach either by act or omission to act, injurious to public welfare and punishable by the
State, defined in statute or common law.

Summary Offences: relatively minor crimes presided over by a magistrate without a jury. May include
motor traffic offences and offensive behaviour.

Indictable Offences: more serious criminal offences heard by a judge sometimes with jury. May include
sexual assault, murder, manslaughter. Includes committal hearing to determine if prima vacie case exists.

TYPES OF CRIME
• Offences against persons – crime in which a victim is harmed:
o homicide: murder (actus rea and mens rea with ‘malice afterthought’), attempted
murder, manslaughter (voluntary – intention mitigated by partial defence eg provocation or
involuntary – no intention but death by recklessness or negligence, max 25)
o infanticide (homicide of infant <1yr old by mother affected by birth)
o death by reckless driving (culpable driving)
o assault (threat + actual physical BH, previously assault [threat] and battery [harm])
o sexual assault
• Economic offences – deprive owners of rights to property
o larceny (theft – taking of property with intention of permanently depriving owner of
that property)
o break and enter (entering property with intent to commit crime) max 7 - 14
o fraudulent misappropriation (dishonest acquisition of property)
o robbery (theft with force, previously assault + larceny) 14 - life
o ‘White collar crimes’ – dishonest taking of money/property from business by
fraudulent means - embezzlement, property damage, insider trading (use of confidential info
to manipulate share prices), shrinkage, insurance scams, industrial espionage, computer
crime, tax evasion (R v Rivkin 2004), forgery.
• Offences against the State – treason (breach of allegiance to Crown by attempt at harming
Monarch/heir/spouse, declaring war, assisting enemy in war, inciting invasion by foreign power),
sedition (inciting public unrest with intent to overthrown gov.), spying Anti-Terrorism Act 2005 (Cth)
• Drug offences – possession, trafficking (sale), manufacture, cultivation, importation - Poisons Act
1966 (NSW), Drug Misuse and Trafficking Act 1985 (NSW), Customs Act 1901 (Cth)
• Public order offences – designed to regulate public behaviour and minimise violence/abuse in
community: offensive language, vandalism, drunk and disorderly – Summary Offences Act 1988
(NSW)
• Regulatory offences – potentially harmful activities, strict liability offences (no mens rea) – seat
belt wearing, fare evasion
• Traffic offences – strict liability offences, reckless driving, driving under the influence, negligent
driving (driving occasioning death)
• ‘Victimless’ crimes – no one deemed to be hurt bar the consenting victim: illegal gambling,
prostitution, drug use, distribution of illicit porn, not wearing seatbelt/helmet
• Preliminary Crimes (attempts/conspiracy – no actus rea) – conspiracy, attempt, incitement

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 SOURCES OF CRIMINAL LAW

Statute Law – Legislation made by state/federal Parliament. Most criminal offences in NSW under Crimes
Act 1900 (NSW). NSW Parliament granted right to make laws defining criminal offences under s5 of NSW
Constitution Act (1902) unless conflicts with federal. Crime Act 1914 (Cth)
Common Law – “judge-made law” – requires use of DISCRETION in making judgements, setting
BINDING PRECEDENT. Some states (TAS, QA) have replaced use of common law with Acts of
Parliament (‘codification’). Gives implied right eg right to silence is a common law principle.

There is a constitutional separation of powers under the Constitution to ensure ROL is upheld:
• Legislature (parliament)
• Executive (administrative body)
• Judiciary (court)
Division of powers is the division of power between State/Federal jurisdictions. Under s109 the
Commonwealth over-rides the State.

COURT STRUCTURE:
Original (right to hear case for first time) and appellate jurisdiction.

NSW COURT HIERARCHY

High Court
- hears matters related to constitution/federal legislation
- bench of 3 judges
(a): broad, any legal matter
(o): constitutional issues

NSW Court of Criminal Appeal

- part of supreme court but with 3 judges
(a): from DC and SC

Supreme Court
- judge and jury Land and Environment Court
(o): serious indictable offences (murder, serious (o): land compensation and planning
drug offences, aggravated/sexual assault), some (a): local government appeals
serious civil cases
(a): from DC
District Court Drug Court
- judge/jury - Diversionary/rehabilitation
(o): most indictable offences (drug, assault), civil programs rather than
claims to $750k punishment
(a): from LC (o): jurisdiction at both LC/DC
level
NSW Drug Court Act 1998

Coroner’s Court Local Court

Children’s Court
(o): investigates cases of violent
- magistrate no jury
- magistrate no jury
or suspicious death, determines
(o): summary offences, public order offences,
- must be under 21 when charged
cause of arson committal hearings for indictable offences to
- specialised procedures eg closed
determine prima vacie, civil matters up to
court/more informal
$60k 5 (o): cases involving minors, (except
(a): none
those cases first heard in SC)
Factors Affecting Definition of Crime and Criminal Behaviour
• Media + societal attitudes dictate what society deems unacceptable, varies over time
• Socio-economic: high crime area, low income/education, poor living environment, family/personal
situation (eg those exposed to parents disregarding laws more likely to commit crime), abuse, work
opportunities
• Genetic: criminality genetically determined eg skin colour, facial structure, now invalid
• Political: challenging authority of government, justifiable criminal activity eg Nelson Mandela
against apartheid.
• Self-Interest: crimes motivated by self-interest eg larceny/white collar crimes

Elements of a Crime:
• Mens rea: intent or ‘guilty mind’ – intention, reckless, negligent. Relies on subjective
responsibility. Not required in statutory drug offences or strict liability/regulatory offences. Seperate
to motive although this has become element of a crime in new anti-terrorism laws.
• Actus rea: the act or omission to act – must have occurred simultaneously with mens rea
• Causation: unbroken chain of event, causal link between the act or inaction and damage caused. R
v Blaue (1975) – stabbed victim, v needed blood transfusion but refused due to religious reasons and
died, found guilty of manslaughter. R v Hallet (1969) – v drowned after being bashed by Hallet,
convicted of murder

Distinguishing Summary (minor) and indictable (serious) crimes:

Summary offences – minor and can be dealt with quickly: administratively or magistrate in LC. Less
severe punishments – fines, GBB, comm. service. Summary Offences Act 1988 (NSW)
Indictable Offences – more serious and complex with greater legal scrutiny. Commences with committal
hearing, then to SC or DC with judge and jury, then sentencing trial. Brought to court by DPP.
Punishments severe: imprisonment, large fines

Parties to a crime:
• Principal in first degree – actual perpetrator who committed main offence
• Principal in second degree – accessory/accomplice (guard/driver) person who was present assisting.
May be liable to same punishment. R v Harding 1976
• Accessory before the fact – person who helped plan but was not present
• Accessory after the fact – person who knowingly helped the offender post-crime eg refuge

Defences:
The accused charged with criminal offences may use arguments and excuses in order to deny liability. May
be in form of justify – use self-defence, or excuse – use provocation
COMPLETE DEFENCES – absolve defendant of accusations, results in acquittal
• Involuntary Behaviour – no intention or control of actions.
o Intoxication – generally only accepted as PARTIAL defence
o Mental Illness: at time of crime defendant was of unsound mind, preventing them
from realising consequences (missing mens rea). Onus on defence to prove. Court required
to acquit if proven and release into mental health facility.
o Mistake or accident – accused admits to actus rea but claims it was a mistake
honest and reasonably made. Prosecution must argue mens rea existed (eg hunter
accidentally shooting person).

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 o Automatism – when person cannot control their behaviour and mens rea not formed
eg seizure
• Self-defence: allows person to use reasonable force in defending themselves/those in their care,
requires accused to admit to mens rea and actus rea. All or nothing defence eg acquit or guilty, cannot
convict on lesser charge. Zecevic v DPP (1987), R v Morgan (1976) – man acquitted of murder after
killing known sex offender. Argued was defending relatives.
• Compulsion:
o Necessity – when crime committed comparatively less serious than possible outcome
had defendant not intervened.
o Duress – Accused admits to committing crime but claims they were forced due to
threat of death/serious bodily harm (cannot be used for murder/treason). R v Williamson
(1972) – defendant disposed of body whilst under death threat, deemed duress
• Consent – defendant claims they acted with victim’s consent, mostly in sexual assault cases, cannot
be used as absolute defence for murder in NSW. Does not excuse doctor from assisting terminally ill
patient with dying – eg euthanasia not legalised. R v Mueller (2005) – victim persuaded to have
sexual activity therefore consent existed
PARTIAL DEFENCES TO MURDER – results in reduction of charge and/or punishment (eg murder –
manslaughter)
• Provocation – defendant claims they were aggravated by victim to such an extent that any
reasonable person would lose control (eg objective test). Only for murder. R v Camplin (1978): 15 yr
old boy murdered uncle – successfully argued provocation after history of sexual abuse/taunting
• Diminished Responsibility– when person suffering from abnormality of mind argues their mental
response was impaired (eg mental illness/disability). Only for murder in NSW. R v Byrne (1960) –
accused suffered uncontrollable violent sexual urges which resulted in homicide – charge reduced to
manslaughter
• Recent advancements in partial defences – Battered Women’s Syndrome – when woman kills
husband after having suffered substantial domestic violence, homosexual advance defence: Thomas
Green v R 1997: HC found HAD as applicable in Australian crim law

The Criminal Process and the Role of Discretion

Three main stages: enforcement (crime detection, investigation), adjudication (courts, procedure +
evidence), correction (punishment stage). Discretion occurs at all stages of the process.
• Reporting crime – community has duty to report crimes. Crimes such as sexual assault often go
unreported – estimated up to 25% of NSW sex assault cases not reported. Reasons include relationship
between victim + offender, circumstances of offence, subject matter offence, deemed low prospects of
conviction after reporting, fear consequences of reporting offence.
• Investigation, arrest and charge – police ascertain where offence has been committed and collect
evidence from scene, after arrest suspect formally charged. Discretion involved – which reports to
investigate, which areas to control, crimes to target, for juveniles – caution or warning? Strict
procedure must be followed or else case compromised (eg extent of force used must correspond with
seriousness of threat) – conduct overseen by Police Integrity Commission Act 1996 (NSW). Inquiry
into the death of David Gundy 1991 – police defied parameters of search warrant, used excessive
force, resulted in innocent man shot
• Search and Seizure – police can legally search suspect/vehicle if reasonable grounds for suspicion
exist of them possessing illegal substances or having committed serious offence. Search warrants
granted by Search Warrant Act 1985 (NSW).
• Interrogation – suspect interviewed whilst in custody – Witness Statement or description of
events voluntarily given and recorded for use by both the defence and prosecution, must be recorded

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 by audio-visual equipment other inadmissible. Criminals allowed rights in Crimes Act 1900 (NSW) eg
right to silence, privacy or implied rights such as legal representation
• Summons – accused is summoned to court by legal document outlining where case will be held and
charges laid.
• Bail or remand – an undertaking that the accused will appear in court on a set day. Bail Act 1978
(NSW)
o Can be granted before, during or after a trial whilst waiting for appeal. Either by
police or magistrate/judge.
o Bail hearings must occur in as short a time as reasonably practicable
o Factors considered – accused’s background (employment, family history, criminal
record), previous failures to answer bail, circumstances (nature + seriousness of offence),
specific indications as to accused’s likely appearance (whether they surrendered themselves
or attempted to flee country etc)
o Bail for minor offences generally unconditional
o Conditional – offender agrees to whatever conditions court places, may include
monetary assurance ‘surety’, restriction on movements, requirement to report to a police
station regularly or surrendering of passport
o Unconditional takes form of recognizance – promise to appear
o Amendments made through the Bail (Domestic Violence) Amendment Act 1993,
Bail (Terrorism) Amendment Bill 2004, enforcing ‘presumption against bail’ for drug
trafficking, serious domestic violence offences and terrorism; changed in order to provide
greater protection to the community and the victim.
o If denied due to risk of non-attendance, accused is put on remand and held in police
custody until the trial
o R v Walters 1979 – accused charged with murder successfully appealed denial of
bail – conflict between presumption of innocence and perception of community safety that
accused is being charged on basis of credible evidence
• Plea, hearing (evidence, procedure, including the role of juries) –
o Either guilty (in which sentencing occurs straight away) or not guilty (in which
hearing is scheduled for later date). Plea bargaining – when accused pleads guilty to lesser
offence or one of number of offences as part of deal with DPP – decrease in cost, delay and
stress on victim but may compromise justice (leaving crimes to go unpunished, innocent
people may plead guilty because case looks strong against hem and victim feels injustice has
occurred). Charge negotiation used in NSW.
o Committal hearing determining prima facie case if indictable offence. Discretion:
whether there is enough evidence. Discretion also evident in sentencing if summary offence.
o Judge determines admissible evidence depending on nature of evidence and manner
in which it was gathered - Evidence Act 1995 (Cth)
o Prosecution holds burden of proof, standard is beyond reasonable doubt
o 12 jury members representing societal ‘cross-section’ determine guilt or innocence
based on evidence presented. Exemptions given to non-English speakers, 65yr old+, lawyers
etc. 3 Peremptory challenges allowed for both sides (allowed to strike out juries without
giving reason) and unlimited challenges for cause (bias argued to exist, eg past history of
similar case or acquainted with defendant). Hung jury is when no verdict is reached – results
in dismissal and re-run of trial. Jury Amendments (Verdicts) Act 2006 (NSW) allowed for
majority verdicts of 10:1 or 11:1. State laws differ.
o - ‘Jury lost is a system found wanting, again’ – SMH 8/08/08 – questions stability and
resource efficiency of jury in light of the Wood trial starting again due to supposed
compromising of the jury

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 Advantages of Trial by Jury
- more reliable than a single judge
- express right to be tried ‘by your peers’
- directly reflects current community values and
standards
- important check on State power
- serves to educate citizens about judicial
proceedings
- reflective of society to some degree
Disadvantages of Trial by Jury
- arguable lack of objectivity, more emotional
- may not understand court process, untrained and
therefore potentially risky
- may be swayed by more intelligent/eloquent
barristers – unfairly influenced
- expensive/time inefficient
- may not be representative of society or randomly
selected due to exemptions
- potential for subjectivity – swayed by prejudice

• Appeals – if found guilty appeal can be lodged with higher court of appellate jurisdiction on
grounds of legal error or sentence too severe/lenient. Must be launched within 28 days of sentencing.
R v Bilal Skaf 2001 – reduced from 55 to 38 years
• Personnel (police, prosecutors, defence lawyers, magistrates, judges) -
o Police – begin investigation, gather evidence, LC – police prosecutors responsible
for prosecuting summary offences
o Prosecutors – Three parties that can act as prosecutors in criminal cases – police,
DPP and AG. Question witnesses, draw out truth from testimonies. Work on behalf of the
Crown. Represents interests of the victim and community.
o DPP – responsible for prosecution of indictable offences. Exercises discretion in
deciding which way matter should proceed eg telling police to gather more evidence.
Represents interests of the community.
o Defence Lawyers – must be objective, right to legal representation and fair trial for
all. Aim to cast reasonable doubt in jury’s mind, utilising various defences. Assists client in
deciding how to plead and whether they want to give evidence.
o Magistrates – judges in LC, hear summary offences, decide upon innocence or guilt,
impose sentences – fines GBBs, CSOs or gaol terms
o Judges – preside over higher courts, oversee proceeding, ensure proper court
procedure is followed, determine whether evidence is admissible, determine sentence giving
obiter dicta (extraneous comments) and ratio decidendi (reason for decision), decide
guilt/innocence in HC

The Role of Legal Aid: defendant has right to fair trial (rule of law), no express right to legal rep. but HC argued
should always be legal rep. for indictable offences otherwise right of appeal is available, Dietrich v R 1992;
NSW gov provides legal and financial assistance administered by LAC. 3 Tests: means (ability to afford rep.,
whether assets/income of applicant below threshold of $190/week), merit (likelihood of case success – not
for criminal), jurisdiction (whether case fits into LAC area of law – most criminal, some family). Attempts to
ensure accessibility to the law, cut-off of means test means it denies large proportion of people who just miss
threshold

Types of International Crime:

• Crimes committed outside the jurisdiction – laws of country in which crime was committed
applies. Sometimes occurs outside jurisdiction of national laws such as at sea or in airspace. Treaties
decide which nation prosecutes the offender eg Bali Nine, Schappelle Corby
• Transnational Crimes – breaking the law in more than one jurisdiction eg money laundering,
human trafficking, environmental destruction, drug importation, terrorism. Difficult to prosecute as
laws vary between jurisdictions and involves inter-national co-operation. Wonderland Case 1999 –

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 more than 6 countries (B, US, Aus, G) arrested participants of paedophile ring, involved months of
international co-operation
• Crimes Against the International Community – crimes agreed as harmful/unacceptable by the
international community, outside domestic jurisdiction. ICC established with Treaty of Rome – hears
crimes such as genocide, war crimes, slavery and crimes against humanity. Adhoc tribunals established
to address specific problematic situations (eg Rwanda, East Timor, WWII Nuremburg etc). UN
Convention of the Prevention and Punishment of the Crime of Genocide (1948)

Sources of Law for International Crime:

• Treaties – formal agreements ratified by nation-states, aiming to uphold certain principles in
specified areas, bilateral or multilateral. Compliance affected by state sovereignty.
• Declarations/covenants – agreements made by a large amount of countries, usually derived from
UN resolutions
• Customary Law
• Agreements – bilateral and multilateral

2. Legal Issues and Remedies

Creating social order through: main aim of criminal law

• Education - creates public awareness of offences, educates people of values of society eg speeding
‘No One Thinks Big of You’ advertisements, dom viol ‘Violence Against Women...’
• Regulation – body of laws created by Parliament which regulate behaviour through introducing
penalties for wrongful behaviour eg making DD a crime
• Coercion – ‘to force’ eg through fear of penalties. Social order produced by forcing compliance to
certain standards of behaviour eg double demerit points and fines, increasing penalties for sexual
assault in concert (Bilal Skaf case)

Crime Prevention:
• Situational – actions taken to prevent or reduce criminal activity at the location where it may occur
and in high risk areas – key aspects of common areas altered, offence made harder to commit and
detection made easier eg increased police visibility or patrolling, lighting alleys, UV-lighting public
toilets , alarms – questionable effectiveness may just move crime to other locations
• Social – aims to prevent crime by alleviating underlying social conditions which cause crime eg
poverty/poor education/disrupted family life. Includes diversionary schemes such as creation of
PCYCs and community youth centres, improve public housing, education programs eg ‘Violence
against Women: Australia says No’
Terrorism – Situational: metal detectors, increase surveillance. Social: censorship of books.

Enforcing the Law Through Punishment (DIRRR):

PURPOSES OF PUNISHMENT: outlined s3A in Crimes (Sentencing Procedures) Act 1999 NSW
• Rehabilitation (reform) – aims to restore criminal to normal behaviour and thereby inhibit
recidivism – penalties such as CSOs and bonds enforcing counselling, as well as many diversionary
programs (eg drug rehab) which work in educating/counselling. ‘Without Rehab for Prisoners, What
Goes in Comes Back Out’ SMH article 14/04/07 (Adele Horin) – shows pumping money into gaols
does not provide for recidivism, funds should be diverted to rehabilitation schemes – rec rate 44%
within 2 years. According to BOCSAR report ‘Crime and Justice Bulletin Jan 2006’ almost 70% of
prisoners reappeared in court within 2 years.

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 • Deterrence (specific and general) – deters other criminals from performing similar crimes.
General refers to wide media coverage which demonstrates the severity of punishments, discourages
potential criminals although limited effectiveness in more serious cases (thus capital punishment fails
in ensuring this). Specific or individual refers to the actual punishment imposed on the offender,
seeking to make them never want to repeat offend. R v Bilal Skaf 2001 specific not effective as no
remorse present. General deterrent occurred however questionable in light of lenience of sentence.
• Retribution – where State exacts retribution or justice on behalf of victim and society as a whole.
VIS intended to allow victims to feel as though they are part of this procedure and allow magistrates to
impose appropriate sentences. Also extended custodial sentences. Right to write VIS (in Crimes
(Sentencing Procedures) Act 1999). Victims’ Rights Act 1997 (NSW) Made easier for witness through
Criminal Procedures (Evidence) Act 2006 – video evidence accepted.
• Incapacitation – imprisonment of offender – protects community by removing danger from society
but may have adverse effect in creating recidivists due to harsh environment. Extended custodial
sentences achieves this.
• Reintegrative Shaming (meeting the victim): offenders meet their victim, forces them to confront
the consequences of their actions, feel shame, apologise and take responsibility. Allows victim to feel
like their voice is heard, shown to be fairly effective, often used for youth (Youth Justice
Conferencing) and indigenous (circle sentencing). Michael Marslew, killed during armed robbery at
Pizza Hut – father established ‘Enough is Enough Violence Movement’, met with son’s killers as part
of RS. CSOs also example of this. SMH article 7/01/08 ‘New Calls to scrap Periodic Detention’ –
NSW Sentencing Council has proposed scrapping periodic detention and replacing with CSOs which
provide for reintegrative shaming and benefit the community.

The Sentencing Process: 65% plead guilty. Sentencing hearing occurs after accused has been found/pleaded guilty.
Sentences must be consistent to promote fairness.
• The Hearing (evidence, role of prosecutor, defence and victim) – judge considers facts of the
case, to what degree standard of proof was established, pleading guilty may result in reduction in
sentence.
Evidence – witness statements, police interviews, physical evidence, medical evidence, DNA, phone
calls. Inadmissible – hearsay, opinion, irrelevant
Prosecution/defence sum up their case, attempt to gain highest/most lenient sentence, stating effect of
crime of victim, past convictions now admissible, may suggest what they deem to be an appropriate
sentence. Victim can tender VIS.
• Factors affecting the decision:
o Purposes of punishment – right of accused to fair punishment, right of society for
justice to be carried out, need to deter recidivism (general and specific). Varies depending
on offender, eg for young person rehabilitations will be objective whilst for recidivist
deterrence or retribution
o Circumstances of the Case (objective features) – degree of seriousness of offence,
use of weapons, threat or actual use of force, whether was premeditated, level of damage
inflicted, motive, prevalence of the offence. Eg robbery is worse than larceny because it
involves threat or use of force, large amount of planning in R v Skaf 2001 (NSW)
o Circumstances of the Offender (subjective features) – Requires discretion on part
of judge – includes age, character, gender, criminal record, cultural/social background,
disabilities as well as level of remorse, level of cooperation with police and Courts
o Aggravating & Mitigating Factors – aggravating: (make offence more serious)
age of victim, level of violence present, whether offender was in trusted position eg if
excessive violence occurred for no apparent reason, if no remorse was shown (eg in R v
Skaf 2001 (NSW). Mitigating: (circumstances which reduce seriousness of offence or

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 explain offender’s conduct) remorse, age of offender, background, lack of education
sometimes drugs/alcohol. R v Fernando 1992 – established distinct principles for
considering mitigating factors with regards to indigenous offenders, included lack of
employment/education, drug and alcohol abuse, combination of socio-eco and cultural
factors
o Judicial Discretion and Limits on Discretion (eg judicial guidelines, mandatory
sentencing, maximum penalties) – Judicial guidelines – legislation which ensures
consistency, sets maximum sentences, provides rules for non-parole period. Maximum
penalties according to statute law set by parliament thus override common law. Intended to
protect the individual and ensure greater reflection of community standards.
o VIS – made during sentencing process according to Crimes (Sentencing Procedure)
Act 1999 (NSW), effect of crime on victim can often have significant impact on sentencing
decision, allows victim to feel part of process and greater protection of rights of the ind
- Sentencing Act 1989 NSW – ‘truth in sentencing’, limited judicial discretion, repealed.
- Crimes (Sentencing Procedure) Act (NSW) 1999 – states length of prisoner sentence must
reflect actual time, restricted parole period to no more than ¼ total
- Crimes Act 1900 (NSW) imposes maximum penalties
- WA and NT have mandatory sentencing laws which restrict judicial discretion, fails in
equality as individual’s rights not considered
- Crimes Amendment (Sexual Assault in Company) Act 2001 NSW – reaction to Skaf, lifted
maximum 25 years of life imprisonment for ‘worst category’ offences
- DPP: thinks juries should not partake in sentencing process – too complex and time-
consuming

Penalties
• Types of penalties: sanctions imposed by the courts, varying severity, reflect moral and ethical
standards of the community. Includes suspended sentence (eg fines, criticised for being revenue-
raising), diversionary programs
o Fines – payment of money to the State, most common and of moderate severity,
mostly for strict liability/regulatory offences. Size of fine depends on discretion of judge –
depends on offenders’ income and capacity to pay the fine. Imposed in penalty ‘units’ with
maximum units dictated for each offence. Criticised as revenue-raising and not deterring
wealthy, Fines Act 1966 (NSW)
o Bonds (GBBs) – agreement that offender will be of good behaviour for a set period
of time, usually between 1-5 years. Conditions may include: attending counselling, anger
management courses, avoiding particular place/people, refraining from certain activities. R
v Dawes 2003 – killed autistic son, attempted suicide - given 5 years GBB
o Probation Orders – type of bond, offender supervised by probation officer
(reporting to them regularly) and must be on good behaviour
o Community Service Orders (CSOs): court order requiring offender to engage in
community service for max 500 hours. Unpaid work unless paying off fine, cost effective
and beneficial to community. POs + CSOs make up 20% of LC penalties
o Home Detention – allows offender to face problems whilst remaining with their
families, offenders constrained to home or its surroundings, often monitored by use of
electronic device. Must engage in working from home or education, up to 18 months. Home
Detention Act 1996 (NSW)
o Periodic Detention – offender serves sentence through regular, but not full-time,
attendance in gaol (usually weekend detention), given to those with permanent jobs, close

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 family ties and who have committed particular offences (eg DUIs). Rene Rivkin. Being
phased out according to Nicholas Cowdery.
o Imprisonment – most severe, last resort, incarceration for period of time. On
average costs $73000/year/inmate. NSW has highest incarceration level in Aus, 10,200
prisoners Feb 2009. ‘‘Chock-A-Block: state’s jails bursting at the seams – 7/12/08 SMH’ –
shows rise of imprisonment rates after enactment of ‘Tough on Crime’ stance, overcrowding
in gaols. Prisons owned by Dept of Corrective Services or private. Prisoners given limited
rights – no privacy, 1 supervised visit/week, unable to vote if serving 5y+ sentence. Crimes
Sentencing Procedures Act 1999 (NSW). SMH article 9/12/08 ‘Crime pays as prison guards
privatised’ suggests prisoner’s rights may be further undermined.
o Other – suspended sentences (fairly serious, offender placed on bond),
admonishment or discharge with no criminal record
• Penalties no longer available:
o Capital Punishment – abolished with Death Penalty Abolishment Act 1973 (Cth)
o Corporal Punishment – physical punishment such as beatings. Prohibited with
Crimes Act 1914 (Cth). UN Convention Against Torture 1984
• Penalties that infringe human rights laws:
o Cruel and unusual punishment (ICCPR) – punishments that violate IL and HRs,
often highlighted by media – includes torture, mandatory sentencing, stoning. ICCPR 1976
– state sovereignty restricts ability of IL to address issue. Individuals can appeal to UN if
country is signatory to ICCPR.
• Diversionary Schemes (restorative justice): Drug Court (must plead guilty, punishments solely
rehabilitative), MERIT (magistrates early referral into treatment – for those with addiction problems,
applies at bail stage before plea), Circle Sentencing (reduces no. of ATSI coming into contact with
criminal justice system, allows victims to feel part of process, can be highly effective, found to achieve
most objectives such as including members of Aboriginal community in sentencing process but
recidivism levels unchanged according to ‘Circle sentences fall far short of goal’ The Australian
18/07/08), Warnings/Cautions (Young Offenders Act 1997 (NSW)), Infringement notices, Community
Service Orders (cost effective, beneficial to community and teaches lesson)

Post-Sentencing Decisions
• Security Classification: minimum, medium and maximum security - inmates given security
classification based on seriousness of crime and prospect of rehab, can change during service.
• Protective Custody: for prisoners with substantial risk of being attacked/harassed by other inmates,
housed separately with own facilities, especially child sex offenders, former police, judges, politicians.
Martin Bryant – Port Arthur massacre, R v Bilal Skaf 2001 – isolated in cell for 23 hours
• Parole – conditional release from prison after completion of non-parole period. Decided by Parole
Board based on behaviour whilst in custody, level of remorse, public protection, likelihood of
recidivism. Crimes (Sentencing Procedures) Act NSW 1999 – restricted parole to no more than ¼ of
sentence. Parole of Prisoners Act 1966 (NSW).

Dealing with International Crime

• International Criminal Court – operated from 1st July 2002 as result of Treaty of Rome, ratified
by 60 nations, separate to UN. Established to prosecute individuals who committed international
crimes – human rights abuses, drug trafficking, war crimes (genocide) – hearing case on Darfur. Lacks
effectiveness due to enforceability being subject to political will of each country – cannot force
compliance, US refuses to recognize its jurisdiction.

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 • Sanctions – those actions the international community can take to penalise criminal behaviour -
moral, economic, political. Subject to political will, dubious effectiveness (may simply target innocent
pop.),

Extraditions (dealing with fugitive domestic criminals) – process of sending a person from one jurisdiction
(domestic [between states] or international) to another to face criminal prosecution (either to stand trial or serve
previously handed out sentence). Established based on prima facie evidence for case, nation must be extraditable
country; Extradition Act 1988 (Cth). Offence must be extraditable offence eg minimum 12 months imprisonment,
dual criminality must exist eg offence is crime in both Australia and foreign country, punishment potentially faced
must not breach law of other country – Tony Mokbel from Greece, Julian Moti from Solomon Islands, Gordon Wood
from B. Separate to deportation which is done for immigration reasons.

Current Criminal Justice Issues

Terrorism and the restriction of rights

- since 2001 30+ federal pieces of legislation

- fails to uphold doctrine of separation of powers – executive unduly predominant

- fails to provide judicial review or restricts to under limited circumstances eg Anti Terrorism Act 2005 (Cth) refuses
judicial review in area of control and preventative detention orders. Ability of judicial review worsened by absence of
BoR (identified by HREOC report ‘Human Rights Guide to Australia’s Counter-Terrorism Laws’). Also
ineffectiveness evident in government over-ruling court decisions eg Haneef case granted bail but gov revoked visa
and detained him
- provides detention without charge for 14 days – threatens presumption of innocence/habeas corpus
- denial of right to lawuer ignores notion of fair trial
- presumption against bail reverses accepted onus of proof
- excessive upholding of societal rights over individuals denies rule of law
- “The object of terrorism laws is the protection of our traditional freedoms, including the freedom to be free of
bodily injury. It would be ironic if we disregarded those freedoms in our attempt to protect them” – HC judge
McHugh

- Senate integral part of parliamentary review eg ASIO Amendment Act 2003 (Cth) initially contained provision
ignoring accused’s right to silence and made failure to answer qs punishable offence. Senate modulated, installed
independent reviewer for ASIO and inserted sunset clauses
- control around 2005 of both Houses of Parliament lead to diminished reviewing capacity – The Age’s 5/12/05
article ‘Anti-Terror laws rammed through – minus debate’ – Anti-Terrorism Act 2005 passed with controversial
‘shoot to kill’ clause
- independent reviewer of anti-terror laws proposed in Independent Reviewer of Terrorism Laws Bill 2008
- non-legal measures – civil rights advocacy groups (NSW Council for Civil Liberties, HREOC), media

- difficult to assess as Aus not faced terrorist attack, Ruddock expressed support in 2005 for new acts on advice from
Fed Polic that current leg inadequate in protecting Aus from London-style attack
- treatment of individ shows great ineffectiveness – R v Thomas inadmissible evidence used to overturn decision in
V Court of Crim Appeals, acquittal of Izhar al-Haque after kidnap and false imprisonment, mistreatment of Haneef
(23 hour/day solitary confinement)

DNA
- admissibility/procedure outlined in Crimes (Forensic Procedures) Act 2000
has led to repealing of double jeopardy law in some areas

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- Limited effect in Australia so far, hampered by state jurisdictional issues (absence of national database). ALRC
called in 2003 for at least a ‘harmonisation’ plan to be established whereby inter-jurisdictional conflicts eliminated –
has not occurred although CrimTrac database has been est with limited records from participating states, also bilateral
agreements exist between some states

- Also issues with mounting backlog – ombudsman’s report identified backlog of 7000 in NSW alone leading to
unexamined crime scenes – response has been to outsource to private companies in 2007.

- Ombudsman report released in Jan 2007 also raised questions as to accuracy of DNA testing – found evidence of
incorrectly mixing up DNA evidence leading to wrongful imprisonment. Issue raised in SMH article ‘Mix-ups,
backlog in DNA case’ 26/01/07. R v Lissoff (1999) found contamination of DNA had occurred
- Also raised issue with police storing of DNA legally required to be destroyed – issues over civil liberties. “Having
inaccurate information on the DNA database can have serious implications for the administration of justice. It will
also dent public confidence in the use of DNA evidence.” – Barbour. R v Button (2001) – relevant DNA had not
been tested by biased scientist looking only for evidence implicating accused
- Case of Frank Button 1999 – convicted through trial by jury of raping 13 year old indigenous girl who testified
against him, served 10 months in gaol where bashed/sexually assaulted, semen tested and Button released

- Risk of infringing on civil liberties in pursuit of justice, rise of ‘police-state’ style laws. 2002 Wee Wae case,
elderly women raped in NSW town, police wanted to DNA test every male in town, one man refused arguing breach
of rule of law and presumption of innocence until proven guilty. NSW Law Society president North stated: “The
issue here is that the police are turning around the legal system which we have always relied on—namely that you are
innocent until proven guilty.”

- Importance in resolving cases – case of Hatty 1984 raped + strangled, blood samples taken, in 2005 killer convicted
on DNA evidence. During 2007 300 cold cases solved due to DNA testing according to SMH article
- Case of Farmer, set alight to home with Lauren Huxley inside, 2005, convicted of attempted murder

Double Jeopardy
- 2007 NSW abandoned double jeopardy rule in relation to murder, manslaughter and gang rape cases carrying
sentence 20 yrs +. Strict criteria, needs ‘fresh’ and ‘compelling’ evidence to exist.
- Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW)
- Result of advances in science technology eg DNA which may yield new evidence
- Undermines protection of individual, takes preference for community
- Normally prevents individuals being tried twice for same crime, upheld in R v Carroll which sparked reform, HC
stated to infringe DJ rule would constitute an abuse of power

Mandatory Sentencing
- Limits judicial discretion, impedes attainment of individual justice
- Punishment cannot be made to fit the criminal as well as the crime, unjust penalties can result

Majority Verdicts
- 2005 NSWLRC Report recommended unanimous verdicts be retained, gov ignored
- Jury Amendment (Verdicts) Act 2006 (NSW) –MV allowed after no less than 8 hours deliberation and unlikely jury
will reach unanimous verdict (10 or 11)

3. Morality, Ethics and Commitment to the Law

The extent to which law reflects moral and ethical standards:

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 • To some extent morals and ethics do influence law-making and shift as societal values shift,
however not everything immoral or unethical has been criminalised eg gambling, smoking whilst
pregnant
• Private morality – what the individual deems right or wrong
• Public morality – widely held societal values on what is right or wrong, is reflection of societal
values
• Consumer laws – protect interests of consumer
• Ethics – ‘doing the right thing’ – controversial in some areas of law eg euthanasia
• Shifts as societal morals and ethics shift, often slow to change eg legal acceptance of homosexuality
(age of consent only reduced from 18 to 16 in 2003)

Commitment to the Law – the issue of compliance and non-compliance:

• Compliance – citizens obey the law due to feat of sanctions, no interest in breaking the law,
deemed necessary part of living in stable and ordered society. Reflection of morality and ethics
important in ensuring compliance eg laws banning swearing in public are broken daily. Seriousness of
sanctions also intended to ensure compliance eg double demerit system for long weekends
• Non-Compliance – citizens break because they expect no reprisal, wants to gain power in a world
in which they feel powerless, poor social skills, activities they engage in are criminalised. Sometimes
morality favours breaking law eg Ghandi, Mandela, also in Aus in breaching anti-discrimination laws
to employ more males in primary education. Morality may prefer application of customary indigenous
law and non-compliance with mainstream law. Morality and non-compliance questionable with
regards to Iraq, activists argued moral duty not to pay taxes.

4. Effectiveness of the Law

Factors to be considered when evaluating the effectiveness of law in achieving justice:

For individuals: equality, accessibility, enforceability, resource efficiency, protection and recognition of
individual rights (PAREE)
Effectiveness measured by: reduced crime rates, recidivism levels, compensation of victims, diversion/regulation of
youths, justice of sentencing
• Equality – notion of equality before the law in order to achieve justice –
o in theory all people are equal before the law regardless of income, social status, sex,
education, ethnicity, in practice disadvantages exist for women (underrepresented in
judiciary/legislature), indigenous (overrepresented in gaols), juveniles, GLBT, low socio-
economic backgrounds. 60% of inmates are at or below Year 10 education level
o Equality also undermined by use of plea bargaining, quality of legal aid, adversary
system, removal of double jeopardy, majority verdicts
o ICCPR Article 26: “All persons are equal before the law and are entitled without
any discrimination to the equal protection of the law.”
• Accessibility – ability of individuals to gain access to information about the law or receive legal
representation.
o Dependant on 3 main factors: wealth/cost (cost of legal assistance hinders ability of
indiv. to seek justice), time (delays increase trauma, decrease witness reliability, allow
media influence, denies freedom if on remand – In 2000 only 5% of matters where accused
were on bail were heard within standard of 112 days), knowledge of law.
o Further issues with regards to accessibility for disad. groups: Non English speakers,
youths, intellectually disabled. R v Gonzales – offence occurred in 2002, not heard in court
until 2004.
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 o SMH article 26/11/08 ‘Victim baulks at $320,000 legal bill’ and media coverage of
excessive charging by Keddies Lawyers. Legal Aid attempts to provide accessibility.
• Enforceability – refers to individuals feeling criminal laws are adequately enforced in order to
protect individuals.
o Effective when consistent – over policing in low socio-eco areas violates this.
o ADR mechanisms aid enforceability but rarely used in crim justice – youth
conferencing
• Resource Efficiency – efficiency allows for cost effectiveness and avoids lengthy court procedures.
o Use of tribunals, diversionary schemes and plea bargaining increases resource
efficiency.
o Majority of funds funnelled into detention, conviction and punishment rather than
prevention – questionable resource efficiency of courts/prisons as well as legal aid (disuse of
merit test: R v Ivan Milat)
• Protection and recognition of individual rights – application of law should not breach HRs
o rights of both victim and accused must be considered – express rights granted to both
to facilitate this.
o Need to protect citizens from extensive powers of the State eg double jeopardy laws,
whilst maintaining efficiency of legal system in investigating/prosecuting crimes.

For society: resource efficiency, law as a reflection of community standards and expectations, opportunities for
enforcement, appeals and review, balance of individual rights and values and community rights and values
(LABOR)
Justice for society involves the legal system giving members of society the reassurance that they live in a safe
environment.
• Resource efficiency – govs. allocate funds to varying aspects of governance, policing and
administration of justice.
o Funding for police contingent on its effectiveness, measured by reduction in crime.
Legal professions resource efficiency can be assessed on the affordability of legal help.
o Effectiveness of prisons questionable – in 2009 10,200 people imprisoned in NSW,
recidivism still high – 43.5% returning within 2 years – should be more focus on
rehabilitation than detention.
• Law as a reflection – laws are repealed or amended in order to reflect changing community
standards and expectations.
o Influenced by lobby groups, politicians, academics/professionals, media.
o Often reactionary – eg 1996 Port Arthur massacre, also reforms to ‘truth in
sentencing’ Sentencing Act 1989 (NSW)
• Opportunities for Enforcement – rise in expenditure on policing and enforcement, aided by
technology.
o Opportunity for enforcement must be balanced against over policing in crime-prone
areas (which causes groups to feel targeted)
• Appeals and review – appellate jurisdiction granted on groups of appeal against the conviction (eg
rehearing due to existence of legal error) or appeal against sentence or a review (eg seeking to have the
severity of the penalty reduced).
o Should be made within 28 days of sentence.
o Higher court hears appeals, no juries; appeal may lead to harsher or more lenient
sentence or overturning of original finding.
o In 2005 53/75 appeals to HC were successful.

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 o Review initiated following Royal Commission – independent formal inquiry,
ordered by gov. power to recommend Court of Crim Appeal reviews conviction or sentence
• Balance of individual rights and values and community rights and values – need for basic HRs
and freedoms to be upheld for individuals whilst maintaining protection of the community. Terrorism
laws questionable in relation to this.

5. Law Reform

The agencies of reform and the conditions which give rise to the need for reform:
Law reform necessary to ensure the law is modified and shaped over time to adapt to changing societal values, often
slow process. 3 key agents of reform – state and federal law reform commissions, state and fed parliaments and
judiciary. Lobby groups, ombudsman, independent reports and investigations also play significant role.
• Law Reform Commissions – independent bodies established to advise government on need to
reform.
o Criticised as slow, can only make recommendations.
o NSW LRC est. in 1966, operates under Law Reform Commission Act 1967 (NSW).
More important for crime. Areas currently under review: role of juries, expert witnesses,
majority verdicts.
o ALRC est. under Australian Law Reform Commission Act 1996 (Cth). ALRC must
ensure Aus’ laws are consistent with its international obligations and do not violate HRs. In
2005 59% of ALRC recommendations resulted in substantial implementation.
• Parliament –
o Reforms through repealing or amending existing legislation or passing new acts, at
both state and federal level.
o Acts on LRC recommendations eg Jury Amendment (Verdicts) Act 2006
o Several statutory bodies advise legislature on areas requiring reform eg Australian
Institute of Criminology, Youth Advisory Council
o Laws reflect societal attitudes as result of political party voted into power.
• Courts –
o Enacts reform through interpretation of statutes, use of precedence, and advising in
obiter dicta (as in R v Bilal Skaf 2001 resulting in Crimes Amendment (Aggravated Sexual
Assault in Company) Act 2001 (NSW) and Byron’s Law).
o In absence of adequate statute law, judge’s decision may become new law – R v
Fernando and Fernando (1995): lack of legislation on police powers with DNA testing led
to SC making ruling that police did have right to take sample. Overturned on appeal at CCA.

• Changing social values and composition of society –

o Law must be a reflection of the society in which it operates
o Law is often slow to adjust, decriminalisation in several areas such as
homosexuality, public order offences has only occurred in recent years
o Societal suspicions and fears often result in harsher laws which may undermine
democratic values eg anti-terrorism laws
o Rapid changes in laws in past 20 years due to multiculturalism of Australia
• New concepts of justice – criticism of handling of indigenous and other cases from international
community has led to implementation of diversionary schemes: Drug Court, MERIT programs, circle
sentencing, abolition of capital punishment

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 • Failure of existing law – possibility of law becoming obsolete due to shifting societal values and
morality. Repealed (suicide laws) or amended (mental health, domestic violence). Often forced by
incident eg review of gun control laws after Port Arthur massacre of 1996, Crimes Amendment (Roads
Accident (Brendan’s Law) Act 2005 (NSW) – after death of 9 year old, driver failed to stop and was
under influence but only convicted of traffic offence, comm. outrage – max penalty for drivers who
fail to stop increased to 10 years if occasioning death.
• International law – Aus ratifying international agreements result in domestic reform, eg CROC.
Jus cogens refers to when new international law is passed all previous contradictory laws become void.
• New technology – new technologies create need for law reform and creation of new offences eg
reform to privacy laws as result of influx of camera phones, Spam Act 2003 (Cth), computer crime.
Law still lacking with regards to genetic testing, computer hacking, reproductive technology. New
technology such as DNA can also assist in clearing up unsolved cases but needs guidelines as to use –
Crimes (Forensic Procedures) Act 2000 (NSW).

Key Questions & Issues

What kinds of behaviour are criminalised? Why?

Behaviours that are offensive to the common values of the majority of society.

How does the practical operation of the criminal process influence enforcement of the law?
Practical operation of the criminal process influenced by the amount of State resourcing applied to each
level (executive/legislature/judiciary) – effectiveness of enforcement limited by resources and how used.
More funding to policing + Corrective Services, funding to legal aid variable, size of judiciary static.
Discretion (over policing) disadvantages minorities, legal personnel not entirely reflective of diversity of
wider society, leads to inconsistency in protection.

Do people show the same respect for all criminal laws? Why?
No, dependant on importance/seriousness of crime. ‘Targeted’ minorities may show greater disregard for
some offences (public order offences/over policing in Redfern), shifting attitudes undermine respect for
laws (swearing in public), counter culture groups less respect for mainstream laws (bikies).

Is the adversarial system the best system for achieving justice in criminal trials?
2 parties putting case before unbiased judge. Judge decides case on facts presented, passes sentence
based on legislation/agg. + mit. factors/precedents. In criminal burden of proof on Prosecution and
beyond reasonable doubt.
Inquisitorial system – judge has investigatory role, continental Europe.
Positive – allows each side to present case, must apply statute law which addresses discrimination,
involves strict standard of proof
Negative – aim to find someone ‘guilty’ rather than ‘who actually committed the crime’, creates delays,
imbalance in quality of legal representation thus monetary inequality (legal aid attempts to undo this
imbalance as does common law rights however shortfalls due to means test), leaves many defendants
unrepresented as no express right to legal rep., jury system exclusive (peremptory challenges/exclusions
from serving) + unrepresentative of wider society, legal principles often too complex for laymen to
grasp, media influence, disadvantaged groups targeted, diminished role for victims, plea bargaining
undermines equality of penalties.
- Juries flawed – do not need to explain reasons, have problems as laymen understanding law, influenced
by media, not representative of society (large and potentially excessive amount of exclusion eg those in

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legal profession + peremptory challenges, disinclination to serve from high-income earners) – NSW
LRC report Jury Selection Report Jan 2008
- ‘Modern trials too difficult for juries’ – 10/10/08 The Australian – Questions abilities for jury to
understand increasingly complex legal systems, DPP has been in discussions about introducing elements
of an inquisitorial system.

What international instruments have been developed with respect to international crime?
ICJ – hears matters related to int law between member states, 15 judges. Effectiveness limited – cannot
enforce rulings or appearance in court, impartiality due to nationality of magistrates.

ICC – no international police force to investigate, arrest, charge, bring to trial international criminals,
relies on domestic governments. Effectiveness could be improved by widespread compliance (eg US)

Interpol – independent of UN, aims to enhance inter-national police cooperation. 181 member countries,
undergoes work related to counter-terrorism, drug/weapons production/trafficking, human trafficking
etc. Collects data for international info exchange, issues international arrest warrants, offers forensic
services, updates member States on global crime trends.

Ad hoc tribunals – created by UN SC to deal with specific int crimes, generally for war crimes.

What role could be played by an international criminal court?

5 main - Achieving universal justice, ending abuse of powers by national leaders, ending international
conflict, bringing consistency to int law, deterring prospective criminals from committing war crimes.

What international instruments and regimes have been developed with respect to extradition?
3 key – instruments emanating from the UN, individual agreements between nation-states, functions of
Interpol (through int. arrest warrants). 3 conditions for extradition to occur – extradition treaty must
exist, crime must be enshrined in both jurisdictions, potential punishment must be acceptable in nation
where fugitive has fled.

To what extent is there a proper balance between the rights of the victim and the rights of the
community; and between the rights of the victim and the rights of the accused?
Traditionally rights of the accused are upheld in a democracy, there has however been a shift in recent
years towards recognising the rights of victims in recent years, notion of innocence until proven guilty
ensures protection of accused’s rights.
Accused – right to fair trial without bias (natural justice), right to freedom unless bail refused, right to
know when being arrested, right to remain silent, implied right to legal representation in serious matters
[Dietrich v R (1992)]. High rates of remand undermine accused’s right to freedom (‘Filling prisons only
part of the solution to cutting crime’) especially when 45% acquitted or serve non-custodial sentences.
Victim – right to medical, legal and counselling aid, right to charges to be laid on accused, right to be
protected from the offender, right to privacy, make submissions on parole, bail, sentencing + release,
right to make compensation claim.
- Limited role in trial due to nature of adversarial system (Prosecution brings matter to court) – thus main
role is as witnesses and in deciding sentences
- Recently moves to make procedure less harrowing for the victim, introduction of Criminal Procedures
(Evidence) Act 2006 (NSW) – allows for video evidence to be used as well as previous evidence to be
used in retrial
- right to write VIS (in Crimes (Sentencing Procedures) Act 1999).
- Victims’ Rights Act 1997 (NSW) – requires increased judicial consultation with victim and provides
counselling.

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- Victims Support and Rehabilitation Act 1996 (NSW) – provides for victim compensation in some
cases.

What are the implications of plea bargaining for the notion of justice of the accused?
Accused accepts guilty plea for lesser charge(s).
Positive – police secure conviction, allows more efficient, cheap + quicker, judicial process (only
sentencing hearing required), victim does not have to appear as witness in court
Negative – justice for accused may be undermined (police overcharge in hope for plea bargain),
seriousness of offence diminished with some crimes going unpunished, VIS not considered, denies
victim’s rights and may leave them feeling like injustice has occurred.

How effective are the various forms of punishment in achieving their objectives?
Various aims of punishment – rehabilitation, retribution, deterrence (general + specific), incapacitation
(only for imprisonment)
- Effectiveness thus depends on aims of specific punishment and its context – eg aim of incapacitation is
to protect community + rehabilitate offender. Questionable effectiveness – rehabilitation undermined by
abuse/intimidation suffered in prison and high levels of recidivism (43.5% returning within 2 years)
- Policing and Dept of Corrective Services spends $1 billion/annum – gross resource efficiency with
little beneficial effects (high level of recidivism thus failure to rehabilitate)
- Motive not always addressed by punishments, limiting effectiveness. HRs not always upheld in gaol.
- Inclusion and social equality shown to be more effective in reducing crime than harsh penalties –
reintegrative shaming such as circle sentencing addresses this. High levels of incarceration in NSW –
10,200 prisoners, rate double that of Vic.
- Effectiveness for minority groups diminished – juvenile recidivism 70-80%, overrepresentation of
indigenous peoples in gaol due to discrimination (according to DCS in 2006 they made up 2% of NSW
population but 17% of prison pop), increased application of customary law + ADRs to improve
effectiveness

Media File

- SMH article ‘Mix-ups, backlog in DNA case’ 26/01/07

- The Age’s 5/12/05 article ‘Anti-Terror laws rammed through – minus debate’

- ‘Circle sentences fall far short of goal’ The Australian 18/07/08 – questions effectiveness of circle
sentencing as data shows recidivism levels are unchanged

- ‘Without Rehab for Prisoners, What Goes in Comes Back Out’ SMH article 14/04/07 (Adele Horin) –
shows pumping money into gaols does not provide for recidivism, funds should be diverted to
rehabilitation schemes – rec rate 44% within 2 years

- ‘Chock-A-Block: state’s jails bursting at the seams – 7/12/08 SMH – 70% of inmates had already been
in jail before, shows Tough on Crime stance has done little to curb recidivism rates, 43.5% re-
incarceration rate within 2 years – argues funds should be diverted to rehabilitation schemes. Also
resource inefficiency - $73,000/inmate/year

- ‘High Jail rate fails to cut reoffending’ – 4/01/09 SMH – study conducted by NSW Bureau of Crime
Statistics shows dramatic move against granting bail, since 1993 denial of bail in higher courts has
doubled to nearly 50% and to more than 90% in murder cases

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- SMH article 7/01/08 ‘New Calls to scrap Periodic Detention’ – NSW Sentencing Council has proposed
scrapping periodic detention and replacing with CSOs which provide for reintegrative shaming and
benefit the community.

- ‘Filling prisons only part of the solution to cutting crime’ – Don Weatherburn SMH Feb 2008, of those
put on remand 45% are either acquitted or given non-custodial sentences

- ‘Modern trials too difficult for juries’ – 10/10/08 The Australian – Questions abilities for jury to
understand increasingly complex legal systems, DPP has been in discussions about introducing elements
of an inquisitorial system.

- ‘Locking out rehabilitation’ – 27/06/09 SMH – Need for diversionary schemes and greater
rehabilitation measures, overrepresentation of ATSI in prisons and failure of law to successfully address
issue
Legislation

Anti-Terrorism Act 2005 (Cth) – impinges on civil liberties and limits freedom of speech
Customs Act 1901 (Cth)
Summary Offences Act 1988 (NSW)
Crimes Act 1900 (NSW) – granted rights to the accused eg silence/privacy/freedom/fair trial
Drug Court Act 1998 (NSW)
Police Integrity Commission Act 1996 (NSW)
Bail Act 1978 (NSW) - Bail (Domestic Violence) Amendment Act 1993, Bail (Terrorism) Amendment Bill
2004
Evidence Act 1995 (Cth)
Jury Amendments (Verdicts) Act 2006 (NSW) – majority verdicts, undermined rights of the accused
UN Convention of the Prevention and Punishment of the Crime of Genocide 1948 (Int)
Crimes (Sentencing Procedures) Act 1999 (NSW) – VIS, restricted parole to no more than ¼, outlines
purposes of punishment
Sentencing Act 1989 (NSW) – ‘truth in sentencing’
Fines Act 1966 (NSW)
Home Detention Act 1996 (NSW)
Death Penalty Abolishment Act 1973 (Cth)
Crimes Act 1914 (Cth).
UN Convention Against Torture 1984 (Int)
ICCPR 1976 (Int)
Parole of Prisoners Act 1966 (NSW)
Extradition Act 1988 (Cth)
Law Reform Commission Act 1967 (NSW)
Australian Law Reform Commission Act 1996 (Cth)
Spam Act 2003 (Cth)
Local Court Act 1982 (NSW)
District Court Act 1975
Children’s Court Act 1987
Jury Act 1977 (NSW)
Crimes Amendment (Grievous Bodily Harm) Act 2005 (NSW) – Byron’s Law, controversy over
lack of legislation protecting unborn children, reflecting community standards
Crimes Amendment (Aggravated Sexual Assault in Company) Act 2001 (NSW) – result of Bilal
Skaf case, created new offence dramatically increasing maximum sentences and including
heightened penalty for ‘leader’ or orchestrator of gang

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 Crimes (Forensic Procedures) Act 2001 (NSW) – DNA samples must be freely given by the accused
Crimes Procedures (Evidence) Act 2006 (NSW) – video evidence allowed in sexual assault cases eg upholds
rights of the victims
Victims’ Rights Act 1997 – victim granted compensation and counselling
Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW) – if ‘fresh and compelling
evidence’ is found retrial sanctioned, promotes interests of community over accused
Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2006 (NSW) – created DNA review panel to
review convictions eg wrongful conviction of Frank Button overturned
Crimes (Criminal Organisations Control) Act 2009 – reaction to Bikie gangs

Cases

Dietrich v R – common law right to legal representation in serious indictable offences

R v Rivkin (2004) – tax evasion
R v Blaue (1975) – unbroken chain of events (causation)/blood transfusion
R v Harding (1976) -
R v Hallet (1969) – causation, drowned
Zecevic v DPP (1987)
R v Morgan (1976) – acquitted for SD, killed known sex offender, argued defending relatives
R v Williamson (1972) – disposed of bodies under threat
R v Mueller (2005) – used consent, victim persuaded to have sex
R v Camplin (1978) – boy, murdered uncle after history of sexual abuse - provocation
R v Byrne (1960) – suffered from violent sexual fantasies, partial defence successful
Thomas Green v R (1997)
Inquiry into the death of David Gundy (1991) – policy found to have defied parameters of search
warrant, used excessive force – innocent man shot
R v Walters (1979) – charged with murder, successfully appealed remand
R v Bilal Skaf (2001) – 55 years for abduction and gang rape of women but later reduced – general
deterrence but questionable specific
Dietrich v R (1992)
Wonderland Case (1999) – 6 countries, paedophile ring – transnational crime
Michael Marslew – ‘Enough is Enough’ Violence Movement, father met with son’s killers – rein
shaming
R v Fernando (1992) – Aboriginal offenders – mitigating factors
R v Dawes (2003) – killed autistic son - 5 year GBB
R v Gonzales (2004) – trial delayed 2 years
Milat v R (2004) – merit test in crim cases legal aid not used - wasted
Corey Davis case – doli incapax
R v Carroll (2002) – sparked reform to double jeopardy laws as substantial evidence found to
convict man of murdering young child
R v Lissoff (1999) – found contamination of DNA evidence had occurred
R v Button (2001) – relevant DNA not tested by biased scientist
Wee Wae Case (2002) – police wanted to test every male in town, one man refused arguing breach
of rule of law and presumption of innocence
R v Hatty (1984) – blood samples taken at time of crime, tested in 2005 – convicted
Case of Farmer (2005) – Lauren Huxley case, convicted on DNA evidence
R v Fernando and Fernando (1995) – common law ruling on police powers re DNA testing

Notes for Assessment

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- integrate judgement into analysis eg This was successful because/this was problematic as/this was effective...
- do not use ‘in conclusion’, or ‘i’ ‘me’ ‘you’
- 5 legislation in family/world order
- use quotes eg Nicholas Cowdery
- use terms – resource efficiency, accessibility – and integrate these into notes under various headings
- underline cases/legislation/reports/media etc
- include critical analysis – eg opposing sides (on the other hand...)

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