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CRIME ESSAY PLANS

THEMES AND CHALLENGES

✔ the role of discretion in the criminal justice system

✔ issues of compliance and non-compliance in regard to criminal law

✔ the extent to which law reflects moral and ethical standards

✔ the role of law reform in the criminal justice system

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

✔ the effectiveness of legal and non-legal measures in achieving justice.

BROAD – THEMES

1. Assess the extent to which the criminal justice system effectively balances the rights of victims, offenders and society

Introo Mostly yes it does as it is the fundamental aim of the law in theoryo Does not always occur in practise

1: Police Powers – LEPRA

o LEPRA gives police the power to keep the community from harm

▪ LEPRA (2002), Code of Behaviours in Code of Practise for CRIME (Custody, Rights, Investigation, Management and Evidence)

▪ Given powers to arrest, charge, suspects

▪ Their job is to Prevention, Detection, Maintenance of Public Order and Ensure Criminal laws are observed

▪ Enforce laws such as the Crimes Act 1900 o LEPRA ensures the police do not abuse power to protect offender/suspects

● They can only use reasonable force

● Must obtain warrants 🡪 do not intrude on rights of offenders

● When arrested must keep for a minimum of 6 hours – and extent to 6 hours AFTER this they must either charge or release them unconditionally 🡪 MAY NOT KEEP community from harm though

o Use of reasonable force, but it was MISUED ROBERT CURTI case 🡪 ineffective for this offender

● Issues of misuse and dangers of unrestricted handling

● Robert Curti, 21 y/o Brazilian killed in 2012 after being tasered up to 14 times by police attempting to arrest him and he died

● Coronial inquest into death recommend several police offences face action finding they had acted “thuggish manner”

● 4 charged, 2 with common assault and 2 with assault occasioning bodily harm, 1 for capsicum spray

● Highlights rule of law 🡺 police not above the law and their powers

● Police showed appalling judgement and no understanding on proper training 🡪 did not use reasonable force

2: The Adversarial system

o Mostly balances all the rights as everyone gets most of a say 🡪 community + offender

● Follows the testament of ‘innocent until proven guilty’

● In front of a impartial judge

● All evidence must be admissible under the Evidence Act 1995

● E.g. R V SCAF following the initial sentence, evidence revealed that two jurors had conducted an unprecedented investigation of the crime scene to their own experiment. As a result, the Court of Criminal Appeal quashed the accused’s convictions and ordered a retrial on the basis of breaching the Evidence Act 1995.

o Juries are used 🡪 sample space for community

● Give the community a say

● However some criticize they are amateurs

● Publication: “Juror’s understanding in criminal trials” the Bureau, Dr Don Weatherburn Said that generally the jury system is effective – “It is occasionally suggested that jurors do not understand what is going on in criminal trials. This study indicates that the overwhelming majority of jurors have little or no problem understanding

o However victims don’t get justice

● Don’t get much of a say as they represented by the prosecution

● Often feel like they are not included and can only give their input during the sentencing process o As a result alt methods such as restorative justice are more effective for victims

● Aims at placing all parties and sorting it out

● Victim can explain how they felt

● According to BOSCAR 2012 it has 87% from the public support (Restorative Justice Initiatives: Public Support and Opinion In NSW BOSCAR 2012)

3: Mandatory sentencing

o Effective for ALL but the offender

▪ Offender cannot testify evidence – moves away from common law right to fair trial

▪ Particular ethnic, socioeconomic and minority groups may suffer more than others through mandatory sentencing laws

▪ Removal of judicial discretion by legislation, by setting a minimum or mandatory sentence for a particular offence or type of offender

o Victim gets justice

● The case of R v Loveridge (2013)

● The sentence of Thomas Kelly’s murderer was increased from 4 years non-parole to 7 years, on appeal

● The was an impetus for the passing of the Crimes (Assault and Intoxication) Act 2014

● This act forced the mandatory minimum sentence for assaults causing death while the defendant is intoxicated

● BROUGH justice to victim and family of Loveridge o Community is kept away from harm

● The NSW government passed the Crimes Amendment (Murder of Police Officers) Act in 2011

⇒ This means that if a person is found guilty of murdering a police officer, the judge has no discretion in the sentencing of the defendant, and the judge must hand down a mandatory life sentence

● In QLD mandatory for repeat child sex offenders

2. Assess the role of discretion in the criminal justice system

Intro o Discretion is VERY important o Law in theory 🡪 but is used as a guide for the enforcement of legal personnel o Practised through the use of discretion of law enforcement officials and judges

1: Police Discretion

o Use of reasonable force 🡪 set out in LEPRA as police have to use a certain number of force to arrest o Use of reasonable force, but it was MISUED ROBERT CURTI case 🡪 ineffective for this offender

● Issues of misuse and dangers of unrestricted handling

● Robert Curti, 21 y/o Brazilian killed in 2012 after being tasered up to 14 times by police attempting to arrest him and he died

● Coronial inquest into death recommend several police offences face action finding they had acted “thuggish manner”

● 4 charged, 2 with common assault and 2 with assault occasioning bodily harm, 1 for capsicum spray

● Highlights rule of law 🡺 police not above the law and their powers

● Police showed appalling judgement and no understanding on proper training 🡪 did not use reasonable force

o Police use their discretion when detaining people 🡪 was ineffective in the case of Dr Haneef

● Exception to general 6 hour detention rule – a person suspected of engaging terrorist activity can be detained for 48 hours without being charged - Anti-Terrorism Act (No.2.) 2005 (Cth)

● Case: Dr Haneef

⇒ Federal Government inquiry (Clarke Inquiry) in 2008 to investigate the circumstances of the arrest and detention of him

⇒ Found that Haneef was wrongly charged and criticised the various bodies involved with the case, particularly the lack of a cap of the amount of time which police should detain a suspect without charging him

2: Plea-bargaining and charge negotiation

o How it is the discretion of the offender if they want to plead guilty or innocent

● An agreement with the DPP and the accused that involved the acceptance of a guilty plea, usually in exchange for something else

● Where the accused agrees with the prosecution to please guilty to particular charge/charges 🡪 Usually pleading guilty to a LESSER charge in exchange for other higher charges being WITHDRAWN

● Cannot guarantee a particular sentence – this can only be determined by the judge-based on nature of offence and sentencing guidelines – but charge negotiation may be taken into account

o Case Example: Dib v Director of Public Prosecutions (2002) Supreme Court of NSW

▪ Mustapha Dib charged with murder of 14 year old boy 🡪 pleaded not guilty with alibi 🡪 10th day of trial offered a plea agreement by DPP 🡪 pleaded guilty to manslaughter on the grounds of provocation

▪ Justice Hulme said, “he had grave reservations” and stated “if the crime is murder or nothing, it seems a manslaughter plea is an abuse of process. There is no basis for accepting a plea to do so would result in the accused convicted of an offence for which he is not guilty”

▪ “an abuse of process where there had to be some perverse or unwarranted view of the facts or evidence”

o Discretion of the judge of what charge they want to lay, implications for societyo Not good for the community but is cost-efficient

3: Jury discretion

o Rules in the: Jury Act 1977 (NSW)o IT IS protected in the Constitution 🡪 Section 80 of the Australia Constitution Act (Cth) to Trial by Jury o Shows sample space of community 🡪 are central to adversary system

● Reflection of the historic right of an accused person to be judged 🡪 impartially by a group of peers bases on evidence presented

o Bad bc there are amateurs

▪ Done Weatherburn “It is occasionally suggested that jurors do not understand what is going on in criminal trials. This study indicates that the overwhelming majority of jurors have little or no problem understanding judicial instructions on the law or the judge’s summing-up of evidence at the end of the trial.”

▪ Publication: “Juror’s understanding in criminal trials” 🡪 Understanding of the phrase “beyond reasonable doubt” 🡪 55.4% meant that ‘sure that the person is guilty’

o Ineffective in 🡪 R v Bilal Scaf; Mohammed Scaf – WAS cost inefficient

● Two appeal hearings as in first appeal case

● Retrial ordered because two jury members visited the scene of the crime to look at the lighting in the park at night 🡪 the victims refused to testify at yet another trial

● Law reform 🡪 Criminal Procedure Amendment (Evidence) Act 2005 amended the Criminal Procedure Act 1986 ALLOWING for transcript evidence to be used in certain types of trials

● Enabled a retrial to occur 🡪 convicted 🡪 justice achieved

4: Judge discretion

o Statutory and guideline judgements everything is layed out for the in an act but it up to them to

● Sentencing is an established area of criminal law: there are numerous laws, rules, guidelines and cases on how sentences are to be determined

● Sentencing is when a judge decided on a punishment 🡪 There are guidelines that a judge must follow

● AIM to inform judicial discretion, and achieve consistency 🡪 BALANCES THE RIGHTS, give public confidence in the integrity of the sentencing process

● In the The Crimes (Sentencing Procedure) Act 1999 (NSW) = primary source and max is in the Crimes Act 1900

⇒ Identifies the purpose and mitigating and aggravating circumstances; left to judicial discretion to determine

o Decide based on aggravating and mitigating circumstances

● Aggravating: CASE EXAMPLE: R v Campbell (2010)

⇒ Des was found guilty of pushing his wife Janet off a cliff top in 2005

⇒ Cold blooded/calculated manner of committing offence 🡪 fact he went on holiday with girlfriend rather than attending wife’s funeral

⇒ Sentences to 25 years imprisonment

● Mitigating: CASE STUDY: R v Loveridge (2013)

⇒ Plead guilty of manslaughter 🡪got 4 years

⇒ Community outcry at perceived lenient sentences 🡪 increase to 8 years on appeal

⇒ DPP appeal and sentence increase

⇒ Factors: age 18, showed remorse, good prospects for rehab

3. Assess issues of compliance and non-compliance in regard to criminal law + The effectiveness of legal and non-legal measures in achieving justice in relation to crime

Intro o Law is in place, but requires adherence for the greater society and thus mechanisms are in place to

encourage compliance etc.o Talk about recidivism

1: Situational crime preventiono Situational crime prevention strategies have been highly effective in creating supportive environments that

decrease the risk of crime. They aim to enhance compliance with the law by deterring individuals through the manipulation of environments such as installing CCTV and alarm systems

o The ABC News article, “Sydney crime falling as prevention strategies yield results”, includes criminologist, Dr. Garner Clancey’s: “Models of Crime Prevention”. The report outlines a variety of situational strategies that are accredited to increase security, and hence, encourage compliance with the law to prevent local crime

o December 2016 BOSCAR report, there has been a decrease in 16 of the 17 major offences, indicating a 75% decline of crimes rates in NSW over the last 15 years. The correlation between decreasing crime rates and the implementation of situational strategies highlights the effectiveness of such measures in increasing compliance with the law.

o “NSW Community Safety Fund” allowing local communities to apply for a $250,000 grant for projects designed specifically to prevent crime in their respective vicinity. This is a highly effective measure displaying resource efficiency and equitable funding as strategies are implemented to correlate with the direct needs of the community.

2: Social Crime preventiono According to former crime prevention consultant and senior lecture at the University of Sydney, Dr. Garner;

the most effective way of preventing local crime and increasing compliance with the law is through social crime prevention strategies and early intervention schemes. T

o his includes youth mentoring and education plans that support vulnerable individuals, primarily the youth, who have an increased chance of falling into crime in later life. These programs aim to target the various

factors that affect criminal behaviour by supporting youth in regards to social and psychological determinants

o ABC News article, “Backing Bourke: How a radical new approach is saving young people from a life of crime’, illustrates the effectiveness of social crime prevention schemes in encouraging compliance in the town of Bourke. In 2013, Bourke was ranked the highest in NSW for breaching and non-complying with the law for offences such as bail, assault, and domestic violence.

o The introduction of the “Justice Reinvestment” scheme was established with the aim to reorientate services to focus on social approaches that address the underlying factors that affect criminal behaviour. Amongst implemented strategies include; the establishment of education programs, free driving programs, and crackdowns on domestic violence.

o The ABC “Four Corners Program: Backing Bourke”, highlighted the ground breaking contribution of the Reinvestment scheme in lowering crime rates within the town significantly. As a result, the number of driving offences in Bourke has been the lowest in 10 years and the prevalence of drug offences has declined significantly.

3: Young Offenders Act o Aims rehabilitate young offenders at AN EARLY AGE by showing them the IMPACT of their crime – breaks the

cyclical nature of recidivism o Effective because it encourages rehab measureso Uses diversionary measures to find solution to youth offending promoting the notion of the CROC “jail

should be a last resort”o Youth Justice Conferencing

● Introduced by the Young Offenders Act 1997 (NSW)

● When a young offender admits of an offence, and consents to have it dealt with by a conference

● It allows the offender to take responsibility for their actions

● Promotes better family understanding of the issue and to provide the offender with appropriate support services

● More about rehabilitation and restorative justice

● It finishes with a ‘outcome plan’ which the offender has to agree to 🡪 This can include paying back the victim, apologising or attending counselling 🡪 If the offender doesn’t follow the outcome plan, they can end up facing court instead

● BOSCAR 2013: “Participant Satisfaction with Youth Justice Conferencing”

⇒ High public support with 87% of people surveyed agreeing that the victim should have this chance to talk to the offender about how the crime affected their life

4: Alt to courts

o Diversionary Programs – mostly effective

● An alternative to the traditional court system that focuses on the rehabilitation of offenders e.g. The Drug Court

● A court program set up to divert certain offenders from more traditional criminal processes in the hope that they can be rehabilitated and encouraged not to reoffend under Crimes (Sentencing Procedure) Act 1999 (NSW) AND Drug Court Act 1998 (NSW)

● NSW Bureau of Crime Statistic and Research released a Report in 2000 found

⇒ That those who has completed diversionary programs were less likely to be reconvicted that offenders sentenced with traditional penalties

⇒ The drug court is more cost-effective than prison in reducing drug-related recidiviso The MERIT Program

● Alternative sentencing – those who suffer from alcohol and drugs, Aims to rehabilitate

● Keeps people from drug people OUT OF JAIL 🡪 break substance abuse

● HAVE TO AGREE to participate 🡪

● Offers residential rehabilitation – case management – counselling ET

● Treated as a Health issue – not a legal issues

● Rather than punitive incapacitation

● Expanded program – found all through Sydney – readily available

● MERIT justice annual report 2014

⇒ Decreased rates of referral from 2013

⇒ Of the 3,215 defendants referred to the MERIT program 61% people were accepted (those who didn’t get through – didn’t demonstrate the drug problem)

⇒ 65.1% of the 2,004 MERIT participants who exited in 2014 had met ALL program requirements

⇒ INEFFECTIVE: 12 months after exiting MERIT program 34.6% reoffended – but this included both completers and non-completers

4. To what extent does the law reflects moral and ethical standards + The effectiveness of legal and non-legal measures in achieving justice in relation to crime

Intro

o Yes they do to a large extent

1: Categories of crime – Crimes Against the person – DO REFLECT

o Offences against the person is defined as ‘some form of harm inflicted on an individual’ consequently making it a significant offence under the categories of crime to reflect the moral and ethical standards of society.

o This is demonstrated through inclusion of such offences in the Crimes Act (1900), which comprises of the categories of crime to protect individuals and the greater community.

o Society’s unacceptance of the unlawful killing of a person sees murder as the most serious offence, often resulting in convicted offenders receiving heavy punishments and substantial jail-time.

o This is evident in the case of R v Milat (1996) where the accused was sentenced to penal servitude for life. Additionally,

o Additionally, assault and sex offences, such as sexual assault, are regarded by society as crimes that can inflict physical and psychological harm to a person in an unlawful way.

o This is demonstrated in the case of R v Scaf (2002), where one of the accused, Bilal Scaf, was sentenced to 31 years imprisonment.

o As a result, the inclusion of sexual assault and its various relevant categories, exemplify the categories of crime as a reflection of moral and ethical standards, even amongst inmates. In this way, the categories of crime evidently reflect moral and ethical standards to protect both the individual and the community.

2: Drug Offences – do not reflect

o the criminalisation of drugs such as cannabis fail to deter individuals due to the ambiguity of the law and its disregard by society.

o In 2013, a study by the NDSHS found that around 42% of people in Australia aged 14 years or older had illicitly used drugs with almost 3 million of these people using these drugs in the last 12 months.

o These statistics suggest that the use and consumption of illicit drugs are a common occurrence within the broader society.

o In addition, a 2012 article from ‘The Conversation’ by Alison Ritter, Professor & Specialist in Drug Policy at UNSW Australia, highlighted the public’s opinion on the support of the decriminalising of cannabis.

o The recent national survey found that 80% of Australians support the decriminalisation of cannabis. The enormous figure demonstrates the notion that, despite the harm caused by drugs, it is not a factor that instigates social, economic, emotional and physical harm as great as tobacco and alcohol

o The report also suggested that a large proportion of the population had consumed illicit substances, exemplifying their non-compliance with the law.

o Despite this, an overwhelming number supported the criminalisation of some illicit drugs, thus compliance will occur as a result. In this way, it can be argued that the category of drug offences, primarily in relation to cannabis, is not a reflection of a number of Australians morals and ethics.

3: Sentencing and Punishment – Types of Penalties

o ALL crimes are categorised and punished based on HOW BAD SOCIETY THINKS IT IS o Worst cases (murder, sexual assault)– get incarceration

▪ When an offender is found guilty of an offence and is sent to a correctional facility (jail

▪ Harshest penality 🡪 last resort

▪ Crimes (Sentencing Procedure) Act 1999 (NSW) (set max penalties)

▪ R v Dean (2013) – nurse let fire to nursing home, 11 people died, 8 injured, Sentenced – life

▪ Ebony Case Starvation of child- At least 30 years, max 40 years

▪ Protects society from dangerous criminal

▪ Provides justice to the victim through retributiono Cases involving vulnerable individuals get intensive correction orders and diversionary programs. Society

knows these people need help

▪ A form of a custodial sentence where the offender has restricted movement and must attend a rehabilitation program

▪ Conditions: no drugs, alcohol testing, curfews, monitoring etco Public order – fines – used to DETER individuals and are not as serious

▪ A monetary penalty imposed on an offender and usually applies for less serious offences, such as driving offences, or for particular types of offences, such as some violations of environmental law.

▪ On-the-spot fines system in NSW is called a Work and Development Order (WDO)

▪ The Fines Act 1996 (NSW) giving court ability to set a lower fine less than max considering the offenders capacity to pay

▪ Deterrence – shows that such crimes don’t need extreme punishment (such as speeding) BUT do need a deterrence mechanism

4: Law reform in regards to terrorism

o SOCIETY TODAY sees a huge threat due to terrorism so many reforms have been in place in regards to preventative detention, being able to interrogate, no bail

o 6 Hour Detention Rule – Terrorism

▪ Exception to general 6 hour detention rule – a person suspected of engaging terrorist activity can be detained for 48 hours without being charged - Anti-Terrorism Act (No.2.) 2005 (Cth)

▪ Law allows detention without a judicial hearing based on a low standard of proof 🡪 judicial review may be due to the lack of access to full reasons for decision

▪ Law Reform 🡪 they changed the terrorist from 3 weeks to 2 weeks

▪ Case: Dr Haneef

⇒ Federal Government inquiry (Clarke Inquiry) in 2008 to investigate the circumstances of the arrest and detention of him

⇒ Found that Haneef was wrongly charged and criticised the various bodies involved with the case, particularly the lack of a cap of the amount of time which police should detain a suspect without charging him

o Bails amendments in 2013 following the Sydney Siege

▪ Lone wolf “haron monas” out on bail on sex offences

▪ Changes: It is more difficult for people with links to violent extremists to be granted bail when charged with serious criminal offences, very difficult for people who have links to terrorist organisations

o Preventative Detention

▪ However, most Australian jurisdictions have legislations enabling general powers of preventive detention in restricted circumstances.

▪ E.g NSW: the controversial Part 2A of the Terrorism (Police Powers) Act 2002 (NSW) allows police detain a person in custody for a maximum period of 14 days if suspecting terrorism

▪ Victoria used the controversial anti-terror powers in April 2015 to detain five terror suspects.

5. To what extent is law reform effective in providing just outcomes in the criminal justice system( The role of law reform in the criminal justice system) + The effectiveness of legal and non-legal measures in achieving justice in relation to crime

Intro

o VERY EFFECTIVE

1: Mandatory Sentencing

o One Punch Law

▪ The case of R v Loveridge (2013)

▪ The sentence of Thomas Kelly’s murderer was increased from 4 years non-parole to 7 years, on appeal

▪ This was an impetus for the passing of the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014

▪ This act forced the mandatory minimum sentence for assaults causing death while the defendant is intoxicated

▪ NSW Premier Barry O’Farrell in 2014 introduced the eight- year minimum sentence for convicted one-punch offenders

▪ REFLECTIVE of community and public pressure o Police Officers

▪ The NSW government passed the Crimes Amendment (Murder of Police Officers) Act in 2011

▪ This means that if a person is found guilty of murdering a police officer, the judge has no discretion in the sentencing of the defendant, and the judge must hand down a mandatory life sentence

▪ BUT 🡪 Legal groups argue that this is unnecessary, as this crime already carries a maximum non-parole period of 25 years, and it also implies a flaw in the rule of law.

2: Bail Act

o Bail Act 1978 (NSW) – original legislation

▪ Presumption in favour of bail = you will get bail unless there is a reason you should not (mostly summary offences)

▪ Take into account; seriousness of crime, risk of absconding, likelihood of further offence, protection of the community etc

o 2007 amendment

▪ Conditions on number of bail applications that can be made in court (known as “one shot at bail” section s. 22A of the Bail act) ie. People only apply for bail ONCE 🡪 more people locked up, longer time in remand

▪ NSW labour government stated these changed “provide greater protection to the community” against the risk that persons will commit offences whilst awaiting trial

▪ Article Example: NSW govt to reform bail laws (SMH, June 2011): worried that young people being victimised who should be getting bail (under s22A)

o CONDITIONS before 2013

▪ Changed to the law occurred following media outrage of crime incidents

▪ The reforms have undermined an accused person’s right to the presumption of innocence

▪ The law applied to young people; BOSCAR found that between 200/05 and 2008/09 the juvenile remand population increase by 82%

o 2013 amendment

▪ Presumption in FAVOUR of bail for ALL offences (except appeal cases) – meaning that if the prosecution wanted the accused to be denied bail it is their job to prove so

▪ Multiple applications o CONDITITIONS before 2014

▪ Ray Hadley (2Gb)- Has Barry O’Farrel on his talk back show and pressured him to promise that his government will not “weaken” the bail laws 🡪 This goes against what he has originally said

o 2014 amendment

▪ Introduced in 2013 and commenced on 20th may 2014 🡪 following NSW Law Reform Commission Inquiry and wide spread consultation

▪ The changes were;

⇒ Bail will be made on a case-by-case risk assessment where police and courts will make a decision whether each person is deemed an “unacceptable risk”

▪ e.g. endangering safety of victims, witnessed of community, interfering with witnesses or evidence, committing another serious offence, failing to appear to court

3: Provocation Defence

o Condition

● R v Singh (2012)

⇒ Got 6 years for killing his wife after she told him that she wanted a divorce

⇒ In trial – jury acquitted of murder and agreed he lost his control

⇒ Defence of provocation

⇒ CAUSED COMMUNITY and media OUTRAGE (conditions of law reform)

⇒ How this can be used as a mechanism to kill wiveso NSW Parliament created a Partial Provocation Committee to look at whether the defence should be kept

made recommendations:

● POSITIVES:: Justice for women of domestic violence 🡪 no threat so they need it, Women cannot use self-defence, because there is no threat and thus need to use provocation

● NEGATIVES:: Victoria already removed the defence after R v Ramage (2004) in which a man only got 11 years for killing his wife for insulting him

o THIS LED TO LAW REFORM: Crimes Amendment (Provocation) Act 2014

● The committee recommended that they keep 🡪 but they still enacted new law

● There is still the test of “would as ordinary person do it?”

● Added requirement 🡪 that the victim’s actions themselves had to be an indictable offence

● Sexual component of defence removed 🡪 not available to use where victim made a non-violent sexual advance to accused (ie. cheating)

● It is not counted as extreme provocation is it’s a non-violent sexual advance

● REFORMED BECAUSE OF community concerns 🡪 responsiveness

4: Right to Silenceo Recent NSW legislative reforms, the Evidence Amendment (Evidence of Silence) Act 2013 focuses on tackling

the right to silence which frustrates police investigation of drive by shootings and organised crime violence 🡪 community standards

o Effect of the amendment: A judge may allow the jury to draw-to-draw “unfavourable inference” if the accused does not mention when questioned by police, something they later rely on for their defence (ie. They can infer that the accused made up a story after being questioned)

o Tension between rights of the accused to be treated fairly and society to be safeo Controversial Reforms

▪ Damages fundamental human rights of the accused which underpin the criminal justice system “to be presumed innocent until proved guily” by the prosecution and limits their right to silence

▪ Lawyers not showing up o Criticism;

● Nicholas Dodery (former DPP) critised reforms saying: “Amendment represents a signiifancty deviation from the gold standard of criminal justice. It was contrary to views expressed in the past by the NSW law reform commission. No evidence that the proposed amendments would affect the rate at which the accused persons please guilt or are convicted”

● Article: “Should the right to silence be removed” (SMH): Allows police to to do their job, witness and victims should have the right to silence

● Article: “Abolishing right to silence proved unworkable, says NSW labor (SMH): Wrong in principle, unfair 🡪 up to the state, led people telling truth, lawyers not turning up

1: THE NATURE OF CRIME

1. To what Extent does the nature of Crime reflect moral and ethical standards?

Intro – mostly yes, but not in regards to drug

2. Discuss how successful situational and social crime prevention strategies are in achieving compliance in regard to criminal law

Intro: o Situational and social crime prevention strategies have been mostly successful in achieving compliance with

criminal law amongst certain categories of crime. o However, while situational crime prevention measures have been generally effective, they prove to be

considerably more expensive and less resource efficient than social crime prevention strategies that fundamentally aim to address the underlying factors that affect criminal behaviour. .

Situational Effective:

o Situational crime prevention strategies have been highly effective in creating supportive environments that decrease the risk of crime. They aim to enhance compliance with the law by deterring individuals through the manipulation of environments such as installing CCTV and alarm systems

o The ABC News article, “Sydney crime falling as prevention strategies yield results”, includes criminologist, Dr. Garner Clancey’s: “Models of Crime Prevention”. The report outlines a variety of situational strategies that are accredited to increase security, and hence, encourage compliance with the law to prevent local crime

o December 2016 BOSCAR report, there has been a decrease in 16 of the 17 major offences, indicating a 75% decline of crimes rates in NSW over the last 15 years. The correlation between decreasing crime rates and the implementation of situational strategies highlights the effectiveness of such measures in increasing compliance with the law.

o “NSW Community Safety Fund” allowing local communities to apply for a $250,000 grant for projects designed specifically to prevent crime in their respective vicinity. This is a highly effective measure displaying resource efficiency and equitable funding as strategies are implemented to correlate with the direct needs of the community.

Situational Ineffective:

o the use of CCTV has been criticized in its role of deterring crime, raising concerns over resource efficiency. o The Sydney Morning Herald article, “The real cost of CCTV might stop you smiling”, exposes research

indicating that CCTV is least effective at deterring serious offences. In 2012, Sydney’s annual expenditure on the operation of its CCTV networks was $1.7 million.

o The AIC publication, “Effectiveness of public space CCTV systems” concludes that CCTV does not play a role in preventing serious offences as offenders react by simply displacing their criminal activity to blind spots. This highlights the ineffectiveness of CCTV, as it lacks resource efficiency by showing no indication of preventing the incidence of crime and increasing compliance.

o 2016 report by BOSCAR, “Did the ‘lockout law’ reforms increase assaults at The Star casino, Pyrmont”, demonstrated the ineffectiveness of Sydney’s lock-out laws in deterring alcohol fuelled violence amongst areas outside lockout zones. Findings have exposed that violence from Kings Cross and the CBD have been displaced to alternate precincts, particularly towards the Star Casino and surrounding pubs in Pyrmont.

o Liquor Amendment Act in 2014, alcohol-fuelled violence rose by 46% in Pyrmont, exemplifying the adverse effects of situational crime preventative measures in creating non-compliance with the legal system.

Social Effective

o According to former crime prevention consultant and senior lecture at the University of Sydney, Dr. Garner; the most effective way of preventing local crime and increasing compliance with the law is through social crime prevention strategies and early intervention schemes. This includes youth mentoring and education plans that support vulnerable individuals, primarily the youth, who have an increased chance of falling into crime in later life. These programs aim to target the various factors that affect criminal behaviour by supporting youth in regards to social and psychological determinants

o ABC News article, “Backing Bourke: How a radical new approach is saving young people from a life of crime’, illustrates the effectiveness of social crime prevention schemes in encouraging compliance in the town of Bourke. In 2013, Bourke was ranked the highest in NSW for breaching and non-complying with the law for offences such as bail, assault, and domestic violence.

o The introduction of the “Justice Reinvestment” scheme was established with the aim to reorientate services to focus on social approaches that address the underlying factors that affect criminal behaviour. Amongst implemented strategies include; the establishment of education programs, free driving programs, and crackdowns on domestic violence.

o The ABC “Four Corners Program: Backing Bourke”, highlighted the ground breaking contribution of the Reinvestment scheme in lowering crime rates within the town significantly. As a result, the number of driving offences in Bourke has been the lowest in 10 years and the prevalence of drug offences has declined significantly.

Social Ineffective

o Whilst social crime prevention aims to address the underlying factors that affect criminal behaviour, it has been highly ineffective in addressing the needs of released inmates, as non-compliance and recidivism rates are extremely high. A

o According to the Australian Institute of Criminology, 60% of those in custody in Australia have been imprisoned before.

o The Sydney Morning Herald article, “Aboriginal jail rates increase by 50%, but rehab fails to reduce re-offending”, exposes the distressing imprisonment rates amongst Aboriginal Australians that has increased by an alarming 52% over a decade. Indigenous youth are often excluded from rehabilitation programs as they fail to qualify for services or struggle to access culturally appropriate services. This highlights the ineffectiveness of social crime prevention in achieving compliance, as measures do not target the diverse needs of the ATSI community.

o Additionally, ABC’s “Four Corners Program: Australia’s Shame”, highlighted the abuse juvenile justice facilities impose against Indigenous young people, to represent the beginning of a cycle of incarceration and re-offending. This demonstrates the ineffectiveness of social crime prevention tactics that adversely enhance non-compliance with the law.

o As a result, these measures have been breached the rights of Indigenous offenders, whilst failing to increase compliance.

2: THE CRIMINAL INVESTIGATION PROCESS

1. Discuss the powers of police in the criminal process

Intro

o Police are law enforcement officials who have judicial power under LEPRA to apply and enforce the lawo Their powers are unlined in LEPRA o They aim to protect the greater community from harmo Also have a deterrence effect and thus increase compliance o Aim to balance the rights of individuals, community and the offender through their discretion

1: LEPRA – What are the Police Powers Exactly

o Police are part of the executive arm of the governmento They make sure than laws are adhered to by enforcing them, thus do not have unlimited powero NSW Police Force (state jurisdiction), Australian Federal Police (AFP) (Commonwealth jurisdiction)o NSW Police Powers given legal powers to carryout out in;

⇒ The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA)

⇒ The code of Behaviours is called the Code of Practise for CRIME (Custody, Rights, Investigation, Management and Evidence)

● Sets out rights of suspects and the manner in which investigations can be carried out o Main police powers include;

⇒ Detain and question suspects

⇒ Search property and seizure of evidence (search and seizure on reasonable grounds)

⇒ Use reasonable force when necessary to carry out duties

⇒ Issue warnings, cautions, and fines for less serious offences (using discretion) e.g. jaywalking

⇒ Use technology (such as phone tap, surveillance or DNA) to assist in investigation

⇒ Arrest and interrogate suspects

● S.21 of LEPRA they must have; a warrant or charge a person with a person (on the basis of reasonable suspicion)

● Recommend whether bail should be granted

2: Police Responsibilities/Safeguards for offenders

o Police seeks warrant from court to use particular power such as making an arrest or using phone tap 🡪 Make sure powers are appropriate and not abused

o Police have to follow the RULE OF LAW (treat all members of community regardless of age/sex/etc) o Is responsible for the;

⇒ Prevention of crime 🡪 Detection of crime 🡪 Maintenance of Public Order 🡪 Ensure Criminal laws are observed

o They are able to;

⇒ Investigate crimes 🡪 Arrest if necessary 🡪 Interrogate suspects 🡪 Gather evidenceo Victims may go to the NSW Ombudsmen if they feel they that police brutality has occurred o Police powers must maintain a balance between the rights of victims and accused (ensures rule of law,

integrity of the investigation process, and justice is achievable with secure conviction)o There are safeguards for Young offenders 🡪 e.g. have a parent/guardian with you o People able to exercise their right to silence

3: The role of Discretion and Use of Tasers 🡪 Robert Curti

o Police must decide which crimes to target and which ones to investigate 🡪 therefor crime is not always thoroughly investigated as it could be

o Article Example: Death of Robert Curti

⇒ Issues of misuse and dangers of unrestricted handling

⇒ Robert Curti, 21 y/o Brazilian killed in 2012 after being tasered up to 14 times by police attempting to arrest him and he died

⇒ Coronial inquest into death recommend several police offences face action finding they had acted “thuggish manner”

⇒ 4 charged, 2 with common assault and 2 with assault occasioning bodily harm, 1 for capsicum spray

⇒ Highlights rule of law 🡺 police not above the law and their powers

⇒ Police showed appalling judgement and no understanding on proper training 🡪 did not use reasonable force

o Media example: “abc 7:30 ‘teen tasering highlights weapon-use concerns”

● Footage of a 14-year-old boy being tapered by police has raised more questions on use of the weapons, just before two coronial reports on deaths following taser use release their findings

● “worst cases of police brutality i have ever seen” – kevin henshaw

● Was given capsicum spray and then dragged in and tasered🡪 14 year old was on he’s knees begging not to be tasered and video evidence shows he is begging for deceased mother

● Police brutality -- used beyond reasonable force

● Thus the use of police discretion is incremental and is a mostly ineffective measure as outlined as the above cases

2. Examine the reporting and investigating of crime

Intro:

o Without the reporting of crime there would be no investigations and convictionso The reporting of crime is mostly dependant on the public and the communityo Sometimes it becomes difficult for victims/community members to report crimeso Once a crime is reported the police must use their discretion into whether or not they should investigate ito If the investigation process is undertakes it involves; gathering evidence, the use of warrants, use of

technology , and search and seizure before an offender is charged.o Through this process there are a number of safeguards, legislations, and rules in place to ensure that the

rights of the offender are not vilified

1: Reporting Crime: Reasons why people would not report a crime

o Police Rely on public to know if crimes have been committed, Reluctance to become a witness or become involved, Fear of consequence if crime is reported, Inability to report the crime

o Domestic Violence;

⇒ The perpetrator/offender is a crucial part of the victims person 🡪 economic, emotion, social burdens

⇒ May be cultural barriers (e.g. language, fear of being isolated from community, women’s expectations in their culture etc.)

⇒ Report Example: BOSCAR 2013 Reporting Violence to Police: A survey of victims attending domestic violence services

● Survey of 300 people showed only 51.8% of domestic violence are reported to police🡪 socio-cultural reasons, economic reasons

● Nearly 17.1% of these people said that police did not sufficiently understand or proactive in handling their case

o Article Example: “Less Crime but fewer reporting it, says expert (SMH)

● 18% didn’t report because the incident was “too trivial” (not serious enough)

● 10% didn’t report because “there was nothing the police could do”

2: How to increase reporting Crime through Crime Stoppers and Neighbourhood Watch

o It is essential to increase the reporting of crime to protect community o Improve educationo Neighbourhood watch programs

● Increase the provision of these programs o Increase awareness amongst people 🡪 promotion o Women’s shelters for victims of domestic violence o Provide Incentive’s for reporting crimes o Specialist Police forcers 🡪 made up of different cultures, empathetic o Nation community based program that encouraged people to report info on unsolved crimes, unknown

offences or suspicious/unusual activity o Valuable where people want to remain anon or not be directly involved in police investigations o Crime stoppers is convenient and easier

⇒ Info given from 1989 to end of 2014 result in the arrest of 6603 and 23,218 charges

⇒ From July 2014 – June 2015; received 83,000 phone calls, 25, 894 reports, 1180 arrests, 440 charges laid

3: Gathering Evidence and the use of Warrants 🡪 Evidence Act 1995 (NSW), Inadmissible Evidence

o Takes the form of;

⇒ Physical Evidence; paper, clothing, weapons

⇒ Electronic; Photos, videos, files on hard drives, phone records

⇒ Witness statements; of people at the scene on what they saw and heard

⇒ Forensic; DNA, blood splatter patterns o All evidence must be obtained lawfully

⇒ Contained in the Evidence Act 1995 (NSW)

● If not considered inadmissible at trial and may reduce chance of conviction

● Evidence must pass the relevance, reliability and fairness test (applies to all proceeding in a NSW court)

o Warrant is a legal document issued by a magistrates or judge and authorises a police officer (or law enforcement agency) to perform a specific act such as

▪ Making an arrest – if court is convinced an offence is committed

▪ Conducting a search of premises – police must show there are substantial grounds for believing the will find evidence (protection for the accused)

▪ Seizing property

▪ Using a phone tapo Sniffer Dogs

⇒ Can be used for illegal drugs at public events

⇒ NEED warrant before general use at public places o This judicial helps insure that police powers are not abused and provide further protection for the privacy of

ordinary citizens

4: Use of Technology 🡪 Issues with DNA

o Used frequently by police in order to gather evidence and prove charges o Any technology uses needs to be extremely reliable 🡪 any doubt can lead inadmissible in court resulting in

wrongful convictiono Was very helpful in R v Silva (2015)

⇒ Extensive surveillance evidence used in trial – phone tapping, voice, texts as victim was being investigated by police in relation to another murder

⇒ NSW Supreme Court jury found her not guilty of murder, but manslaughter on the grounds of excessive self-defence.

o DNA evidence is important and helpful in cold cases

⇒ ABC Late line ‘CSI Effect questions forensic evidence” (May 2012):

● High profile appeals in recent months raising concerns and doubts about the use of untested evidence that can put innocent people behind bars

● CSI affect; seductive notion that forensic science on TV never fails. In real life it is complex, but when used in court can be misleading for juries

⇒ Farah Jama (2008)

▪ Where man was convicted of a crime (6 years) because of a DNA mix up. When technology is incorrect

▪ Doubts raised about reliability of the DNA sample; appeal succeeded

▪ Vincent Inquiry looked at how prosecution case was mounted

▪ Attorney Generals set up a working groups to consider need for; nation wide standards on collective + use of DNA evidence, measures ensuring CSI effect does not compromise fairness and integrity

5: Search and Seizure 🡪 “believing on reasonable grounds” 🡪 controversy

o UNDER PART 4 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) gives police power to SEARCH and DETAIN thing in certain circumstances

o They need a warrant UNLESS there is a crime occurring in a premises or domestic violenceo Police can stop and search if they “believe on reasonable grounds” and; if person consents, if person is under

arrest or in custody, if they have a warrant of if they suspect on reasonable grounds that someone has something stolen/drugs/weapons/implement of crime/dangerous implements.

o Police have power (discretion) to search someone who they reasonable suspect has stolen something;

⇒ Have no power under common law to search someone before they arrest them Mammone v Chaplin 1991)

o Controversial

⇒ Privacy issues, invasion of space, decision whether to search or not

⇒ Case: (Darby v DPP) 2004

● Highlights difficulties in the legal definitions of search and reasonable force

● Dog made contact with Darby, who said it was a “search”

● Only police officers entitled to search and make judgement, not dog

● Supreme Court of appeal ruled that it was on reasonable grounds

3: Reporting Crime: Reasons why people would not report a crime – Community Discretion

o Police Rely on public to know if crimes have been committed, Reluctance to become a witness or become involved, Fear of consequence if crime is reported, Inability to report the crime

o Domestic Violence;

⇒ The perpetrator/offender is a crucial part of the victims person 🡪 economic, emotion, social burdens

⇒ May be cultural barriers (e.g. language, fear of being isolated from community, women’s expectations in their culture etc.)

⇒ Report Example: BOSCAR 2013 Reporting Violence to Police: A survey of victims attending domestic violence services

● Survey of 300 people showed only 51.8% of domestic violence are reported to police🡪 socio-cultural reasons, economic reasons

● Nearly 17.1% of these people said that police did not sufficiently understand or proactive in handling their case

o Article Example: “Less Crime but fewer reporting it, says expert (SMH)

● 18% didn’t report because the incident was “too trivial” (not serious enough)

● 10% didn’t report because “there was nothing the police could do”

3. Assess the effectiveness of the criminal investigation process as a means of achieving justice + Assess the extent to which the criminal investigation process effectively balances the rights of victims, offenders and society + To what extent does the criminal investigation process refelct moral and ethical standards

Intro

o Criminal investigation process has varying levels of effectivenesso Many safe guards in place to protect and balance the rights of victim, offender, and communityo Evidence Act is mostly effective but lacks effectiveness in it’s use of DNA evidenceo Police powers is ineffective due to it’s ambiguity and taserso Detention and Interrogation safeguards mostly effective but lack effectiveness in terrorism caseso The rights of suspects and right to silence as a means of achieving justiceo MORE effective in protecting rights of victim and community but lacks for the offender/accused

1: The Evidence Act and Inadmissible Evidence 🡪 Use of DNA Evidence

o All evidence must be obtained lawfully




o This protects the rights of the offendero However DNA Evidence lacks effectiveness

⇒ DNA evidence is important and helpful in cold cases

⇒ DNA evidence not solely reliable as it only proves who COULD have and can be incorrect

⇒ Person must consent to using samples of DNA evidence

● If they refuse police can apply to magistrate and using reasonable force

● Rules of collection are under the; Crimes (Forensic Procedures) Act 2000




⇒ Police shared CCTV evidence with the public (which lead to an arrest)o Farah Jama (2008)

⇒ Where man was convicted of a crime (6 years) because of a DNA mix up. When technology is incorrect

⇒ Doubts raised about reliability of the DNA sample; appeal succeeded

⇒ Vincent Inquiry looked at how prosecution case was mountey

⇒ Attorney Generals set up a working groups to consider need for; nation wide standards on collective + use of DNA evidence, measures ensuring CSI effect does not compromise fairness and integrity

2: Police Powers 🡪 Death of Robert Kurti and use of Tasers

o The role of Police within the criminal investigation process is mostly ambiguous limiting it’s effectiveness.

o Police are given discretionary powers in their ability to distinguish the use of “reasonable force” 🡪 this can be ineffective and discriminatory thus tarnishing the rule of law

o They have powers under LEPRA and the Code of Practise for CRIME 🡪 however not all members of the police force do this

o Use of tasers

⇒ Article Example: Death of Robert Curti: Issues of misuse and dangers of unrestricted handling, Robert Curti, 21 y/o Brazilian killed in 2012 after being tasered up to 14 times by police attempting to arrest him and he died, Coronial inquest into death recommend several police offences face action finding they had acted “thuggish manner”, 4 charged, 2 with common assault and 2 with assault occasioning bodily harm, 1 for capsicum spray, Highlights rule of law 🡺 police not above the law and their powers, Police showed appalling judgement and no understanding on proper training 🡪 did not use reasonable force

⇒ MEDIA EXAMPLE: “ABC 7:30 ‘TEEN TASERING HIGHLIGHTS WEAPON-USE CONCERNS”: FOOTAGE OF A 14-YEAR-OLD BOY BEING TAPERED BY POLICE HAS RAISED MORE QUESTIONS ON USE OF THE WEAPONS, JUST BEFORE TWO CORONIAL REPORTS ON DEATHS FOLLOWING TASER USE RELEASE THEIR FINDINGS., “WORST CASES OF POLICE BRUTALITY I HAVE EVER SEEN” – KEVIN HENSHAW

⇒ THUS SOME-WHAT INEFFECTIVE IN SOME CASES 🡪 DOES NOT PROTECT THE RIGHTS OF CERTAIN INDIVIDUALS WITHIN SOCIETY SUCH AS THE YOUTH, YOUNG MEN AND PEOPLE WHO STEREOTYPICALLY APPEAR TO BE “CRIMINALS”

3: Detention and Interrogation safeguards 🡪 terrorism not effective for offender but is effective for the community

o LEPRA outlines the conditions in which police can make an arrest

⇒ “sets out the lawful conditions under which a suspect can be detained for questioning and for the purpose of further investigation”

o Can only detain a suspect for 6 HOURS

⇒ During this time they must be either

● Charged OR unconditionally released

● May apply to a magistrate for a warrant to extend investigation period to up 6 HOURS (12 altogether)

⇒ Protects the rights of offenders as they are not held up in remand for too long o Exception to 6 Hour Detention Rule – Terrorism

⇒ Exception to general 6 hour detention rule – a person suspected of engaging terrorist activity can be detained for 48 hours without being charged - Anti-Terrorism Act (No.2.) 2005 (Cth)

⇒ INEFFECTIVE in the Case: Dr Haneef

● Federal Government inquiry (Clarke Inquiry) in 2008 to investigate the circumstances of the arrest and detention of him

● Found that Haneef was wrongly charged and criticised the various bodies involved with the case, particularly the lack of a cap of the amount of time which police should detain a suspect without charging him

o HOWEVER terrorism rule is effective for the community as they are kept away from harm 🡪 not a good balance

4: The Rights of suspects 🡪 Right to Silence

o Is when offenders not to incriminate themselves 🡪 for people who are intimidated by police especially o Effective at protecting rights of vulnerable individuals. o The Evidence Amendment (Evidence of Silence) Act 2013 amendment

o The change to the Evidence Act (if your lawyer is present) the judge can order the jury to draw a negative inference on that

o The NSW government has passed a law that has taken away the right to silenceo The judge will tell the jury that they can draw an adverse inference about their silence (ie. Look at it

unfavourably) o Amendment was extremely not resource efficient and lacked balance o Article Example: “On the right to Silence, all the rhetoric is deafening” SMH 16/8/12: Wrong in principle,

Unfair 🡪 up to the state, Led people into telling the truth, Lawyers do not turn up

4. Assess the role of discretion in the criminal investigation process – REDO AND ADD MORE

1: Police Powers 🡪 Death of Robert Kurti and use of Tasers

o The role of Police within the criminal investigation process is mostly ambiguous limiting it’s effectiveness. o Police are given discretionary powers in their ability to distinguish the use of “reasonable force” 🡪 this can

be ineffective and discriminatory thus tarnishing the rule of lawo They have powers under LEPRA and the Code of Practise for CRIME 🡪 however not all members of the police

force do this o Use of tasers

⇒ Article Example: Death of Robert Curti: Issues of misuse and dangers of unrestricted handling, Robert Curti, 21 y/o Brazilian killed in 2012 after being tasered up to 14 times by police attempting to arrest him and he died, Coronial inquest into death recommend several police offences face action finding they had acted “thuggish manner”, 4 charged, 2 with common assault and 2 with assault occasioning bodily harm, 1 for capsicum spray, Highlights rule of law 🡺 police not above the law and their powers, Police showed appalling judgement and no understanding on proper training 🡪 did not use reasonable force

⇒ MEDIA EXAMPLE: “ABC 7:30 ‘TEEN TASERING HIGHLIGHTS WEAPON-USE CONCERNS”: FOOTAGE OF A 14-YEAR-OLD BOY BEING TAPERED BY POLICE HAS RAISED MORE QUESTIONS ON USE OF THE WEAPONS, JUST BEFORE TWO CORONIAL REPORTS ON DEATHS FOLLOWING TASER USE RELEASE THEIR FINDINGS., “WORST CASES OF POLICE BRUTALITY I HAVE EVER SEEN” – KEVIN HENSHAW

⇒ THUS SOME-WHAT INEFFECTIVE IN SOME CASES 🡪 DOES NOT PROTECT THE RIGHTS OF CERTAIN INDIVIDUALS WITHIN SOCIETY SUCH AS THE YOUTH, YOUNG MEN AND PEOPLE WHO STEREOTYPICALLY APPEAR TO BE “CRIMINALS”

2: The Evidence Act and Inadmissible Evidence 🡪 Use of DNA Evidence

o All evidence must be obtained lawfully




o This protects the rights of the offendero However DNA Evidence lacks effectiveness

⇒ DNA evidence is important and helpful in cold cases

⇒ DNA evidence not solely reliable as it only proves who COULD have and can be incorrect

⇒ Person must consent to using samples of DNA evidence

● If they refuse police can apply to magistrate and using reasonable force

● Rules of collection are under the; Crimes (Forensic Procedures) Act 2000




⇒ Police shared CCTV evidence with the public (which lead to an arrest)o Farah Jama (2008)

⇒ Where man was convicted of a crime (6 years) because of a DNA mix up. When technology is incorrect

⇒ Doubts raised about reliability of the DNA sample; appeal succeeded

⇒ Vincent Inquiry looked at how prosecution case was mounte

⇒ Attorney Generals set up a working groups to consider need for; nation wide standards on collective + use of DNA evidence, measures ensuring CSI effect does not compromise fairness and integrity

5. To what extent is law reform effective in providing just outcomes in relation to the criminal investigation process + The effectiveness of legal and non-legal measures in achieving justice in relation to crime – in regards to the criminal investigation process

Intro: Mostly Effective

1: Right to Silence reforms – ineffective as cost-inefficient

o Is when offenders not to incriminate themselves 🡪 for people who are intimidated by police especially o Effective at protecting rights of vulnerable individuals. o The Evidence Amendment (Evidence of Silence) Act 2013 amendment o The change to the Evidence Act (if your lawyer is present) the judge can order the jury to draw a negative

inference on thato The NSW government has passed a law that has taken away the right to silenceo The judge will tell the jury that they can draw an adverse inference about their silence (ie. Look at it

unfavourably) o Amendment was extremely not resource efficient and lacked balanceo Article Example: “On the right to Silence, all the rhetoric is deafening” SMH 16/8/12: Wrong in principle,

Unfair 🡪 up to the state, Led people into telling the truth, Lawyers do not turn up

2: Police Powers 🡪 LEPRA – the introduction of the act and amendments follow Cronulla riots

o DUE TO CRONULLA RIOTS o On 15th December 2005, an amendment to the Law Enforcement (Powers and Responsibilities) Act 2002,

provided police with emergency powers dealing with large-scale public disorder.o This enabled police to seize cars and mobile phones, close licensed premises and prohibit alcoholo Additionally "assault during a public disorder" was introduced as an offence under Section 59A of the NSW

Crimes Act, making those who breached the law liable to 5 years imprisonment. o The laws were highly effective as they protected the community from future riots. o As the laws are clearly outlined in the NSW Act, the laws were extremely enforceable in practise. o However, the amendments did not protect the rights of individuals who wish to protest peacefully.

3: Terrorism Rule Amendment – protect society from terror threats as they are an issue in society

o Exception to 6 Hour Detention Rule – Terrorism

⇒ Exception to general 6 hour detention rule – a person suspected of engaging terrorist activity can be detained for 48 hours without being charged - Anti-Terrorism Act (No.2.) 2005 (Cth)

⇒ INEFFECTIVE in the Case: Dr Haneef

● Federal Government inquiry (Clarke Inquiry) in 2008 to investigate the circumstances of the arrest and detention of him

● Found that Haneef was wrongly charged and criticised the various bodies involved with the case, particularly the lack of a cap of the amount of time which police should detain a suspect without charging him

o HOWEVER terrorism rule is effective for the community as they are kept away from harm 🡪 not a good balance

4: Evidence Act reform due to the Scaf case to protect victims – just outcomes for victims of crime who do not want to testify in sexual assault cases

o R v Bilal Scaf; Mohammed Scaf o Two appeal hearings as in first appeal caseo Retrial ordered because two jury members visited the scene of the crime to look at the lighting in the park at

night 🡪 the victims refused to testify at yet another trialo Law reform 🡪 Criminal Procedure Amendment (Evidence) Act 2005 amended the Criminal Procedure Act

1986 ALLOWING for transcript evidence to be used in certain types of trialso Enabled a retrial to occur 🡪 convicted 🡪 justice achieved

3: THE CRIMINAL TRIAL PROCESS

1. Assess the effectiveness of the criminal trial process as a means of achieving justice + Assess the extent to which the criminal trial process effectively balances the rights of victims, offenders and society + To what extent does the law reflects moral and ethical standards – in the criminal trial process


1: Adversary System – right to fair trial and role of Juries -Rules of Evidence, Fight t Fair trial, Evidence Act, R v Scaf and the jury

o In the adversary system the procedures and rules of evidence are designed to give each side equal opportunity to present their case. Although the adversary systems role is to provide justice, an accurate verdict and emphasis on procedural rules is designed to ensure that the contest between the parties is a fair fight.

o The adversary system mostly attains justice for the accused, as it follows the common law “right to fair trial” (Dietrich v Queen), ensuring that there is always an unbiased outcome. The prosecution has to prove guilt upholding the notion of “innocent until proven guilty”, bringing greater justice to the accused.

o To further protect the rights of the accused, evidence must be collected lawfully in accordance to the Evidence Act 1995. Breaches to the act, result in the judges declaration of the evidence as inadmissible, meaning that it cannot be used during trial.

o In the case of R v Scaf, following the initial sentence, evidence revealed that two jurors had conducted an unprecedented investigation of the crime scene to their own experiment. As a result, the Court of Criminal Appeal quashed the accused’s convictions and ordered a retrial on the basis of breaching the Evidence Act 1995.

o This highlights the effectiveness of the adversary system in bringing justice to the accused by allowing them to have the right to fair trial as judges are able to declare the collection of unlawful evidence as inadmissible.

2: Alternative Methods: What they are, Circle sentencing effectiveness for ATSI people

o However, due to recent developments in the law, there has been an introduction of alternate methods of sentencing to supplement the court system.

o Alterative methods such as circle sentencing, restorative justice and diversionary programs aim at achieving justice through the diversion of offenders - to reduce recidivism and create a harmonious balance between the rights of the victim and the offender.

o Such methods also aim to rehabilitate the offender by making it a sentence to undertake specific programs such as drug and alcohol treatments. Due to community concerns over Indigenous incarceration rates, Circle sentencing is an alternate method used for some Indigenous offenders. It involves a circle made up of local community members, a magistrate, the offender, the victim and their respectful representatives.

o Sourced from a video by the Judicial Commission of NSW titled “Circle Sentencing”, Magistrate Doug Dick describes circle sentencing as a “culturally appropriate measure aimed at [focusing] on the root cause of crime as elders delve deeply into personal history”.

o This is further exemplified through the comments made by Don Weatherburn as circle sentencing gives “Aboriginal Elders direct involvement in the sentencing of Aboriginal offenders encourages offenders to critically reflect upon their behaviour”.

o Thus, circle sentencing is extremely effective in substituting the role of courts in improving understanding between ATSI communities and courts to reduce recidivism among offenders, bringing greater justice to ATSI offenders.

3: Ineffective: plea bargaining, guilty pleas do not bring justice to victims, R v Loveridge, Plea bargaining pressure, Jill Meaghar false confession

o However, plea-bargaining also creates problems for equality as it places two people, who have committed the same crime, in situations where they receive different treatment and outcomes.

o Although guilty pleas reduce the cost and delay in the court system, they also lead to reductions in sentences for the offender that may bring injustice to victims of crime. This means that those who plead guilty are generally given a lesser sentence than those who are found guilty by the court.

o In the case of R v Loveridge (2013 ), the DPP stroke a plea deal with killer of 14-year-old Thomas killer, reducing his sentence from murder to manslaughter.

o In addition, plea bargaining places accused victims in situations where they feel the need to plead guilty. This may lead to a series of bullying and manipulation of the accused that forfeits their right to trial.

o This was evident in the case of Jill Meagher, who was a mentally ill civilian forced into pleading guilty to a murder he did not commit.

o Thus, the adversarial system fails to balance the rights of the victim and the offender whilst also lacking consistency. As a result, justice is not attained whilst vulnerable members of the community face detrimental consequences.

4: Legal Representation, Legal Aid cut funding, evidence of witnesses, R v Scaf where sexual assault didn’t want to testify and there was an amendment

o The success of the adversarial system depends on both sides being represented equally. However, the adversarial system promotes inequality, bringing injustice to vulnerable groups in society. This is due to the notion that; the experience and ability of the legal team may be more important in determining the verdict than the quality of the evidence, particularly in jury trials.

o In summary criminal matters, it often more likely that the prosecution will have more expertise and experience than the defendant's solicitor, resulting in inequality and injustice.

o Additionally, cuts to legal aid funding reduce the chance for equality in representation, leading to further injustices experienced by the accused.

o The notion of justice must be applied to both victims of crime and those who breach it. o The adversary system relies heavily upon evidence that may come in the form of witness statements. As a

result, in cases where witness’s feel uncomfortable in disclosing a testimony, the rights of the community is heavily unprotected resulting in greater injustice.

o In the case of R v Scaf, following a retrial, one of the primary witnesses refused to testify in court as the details of the event were simply too traumatising for her to revisit. This highlights the ineffectiveness of the law in attaining justice through the lack of protection in the rights of witnesses.

5: Defences – Provocation Effective: Battered Wide Syndrome and Dom violence, Protects the rights of women

o Provocation is mostly effective in attaining justice for domestic violence victims making it an effective measure in protecting the rights of individuals who have suffered ‘battered wife syndrome’.

o According to BOSCAR in 1990-93 7.3% of cases used provocation with 70% being successful.o The 2012 SMH article, “Losing provocation defence could harm abused women”, indicated that several

lawyers have warned a parliamentary inquiry that ''BATTERED'' women who kill their abusive husbands will be disadvantaged and are more likely to be jailed for murder if the defence of provocation is abolished.

o The provocation defence is upheld to defend women who killed their violent partner’s to have their charge downgraded to manslaughter. The article states that, “Such women, if that defence was removed, would be convicted of murder'', demonstrating the role of provocation in obtaining justice for victims of domestic violence.

o Additionally the ABC 2013 article, “Inquiry says provocation defence should stay“, invoked that compelling evidence was revealed “that the defence of provocation serves an essential part in the criminal justice system”. The official stated that provocation was “essential for protecting women who have been subject to ongoing domestic violence”, highlighting the importance of provocation in obtaining justice for women who have been subject to ongoing domestic violence.

o In this way, provocation is extremely effective in achieving justice for suffers of domestic violence.

2. Discuss the use of the adversary system as a means of achieving justice

Intro: What it is 🡪 notions of English common law, impartiality, balance of prob/reasonable doubt, procedural fariness, plea bargaining, use of evidence

o The adversary system is a two-sided structure, inherited from English Common, allowing opposing sides to present, prepare and argue their own case.

o This court system varies in its level of achieving justice as it attempts to balance the rights of the offender and the victim.

o The adversary system pits the prosecution against the accused in front of an impartial judge to observe the case.

o Whilst the judge plays a crucial rule, the adversary system relies on a verdict by the jury to determine the balance of probabilities and reasonable doubt.

o Whist the adversary system aims to address the notion of procedural fairness, in some cases, the verdict may serve as an injustice to the prosecution, victims and the greater society.

o Various characteristics of the adversary system, such as plea-bargaining, the use of evidence, and juries are, accredited to both obtain justice and also serve as an injustice – variable to each party during a criminal trial

1: Rules of Evidence, Fight t Fair trial, Evidence Act, R v Scaf and the jury

o In the adversary system the procedures and rules of evidence are designed to give each side equal opportunity to present their case. Although the adversary systems role is to provide justice, an accurate verdict and emphasis on procedural rules is designed to ensure that the contest between the parties is a fair fight.

o The adversary system mostly attains justice for the accused, as it follows the common law “right to fair trial” (Dietrich v Queen), ensuring that there is always an unbiased outcome. The prosecution has to prove guilt upholding the notion of “innocent until proven guilty”, bringing greater justice to the accused.

o To further protect the rights of the accused, evidence must be collected lawfully in accordance to the Evidence Act 1995. Breaches to the act, result in the judges declaration of the evidence as inadmissible, meaning that it cannot be used during trial.

o In the case of R v Scaf, following the initial sentence, evidence revealed that two jurors had conducted an unprecedented investigation of the crime scene to their own experiment. As a result, the Court of Criminal Appeal quashed the accused’s convictions and ordered a retrial on the basis of breaching the Evidence Act 1995.

o This highlights the effectiveness of the adversary system in bringing justice to the accused by allowing them to have the right to fair trial as judges are able to declare the collection of unlawful evidence as inadmissible.

2: Legal Representation, Legal Aid cut funding, evidence of witnesses, R v Scaf where sexual assault didn’t want to testify and there was an amendment

o The success of the adversarial system depends on both sides being represented equally. However, the adversarial system promotes inequality, bringing injustice to vulnerable groups in society. This is due to the notion that; the experience and ability of the legal team may be more important in determining the verdict than the quality of the evidence, particularly in jury trials.

o In summary criminal matters, it often more likely that the prosecution will have more expertise and experience than the defendant's solicitor, resulting in inequality and injustice.

o Additionally, cuts to legal aid funding reduce the chance for equality in representation, leading to further injustices experienced by the accused.

o The notion of justice must be applied to both victims of crime and those who breach it. o The adversary system relies heavily upon evidence that may come in the form of witness statements. As a result,

in cases where witness’s feel uncomfortable in disclosing a testimony, the rights of the community is heavily unprotected resulting in greater injustice.

o In the case of R v Scaf, following a retrial, one of the primary witnesses refused to testify in court as the details of the event were simply too traumatising for her to revisit. This highlights the ineffectiveness of the law in attaining justice through the lack of protection in the rights of witnesses.

3: Effective: Plea Bargaining, Charge Negotiation, Concentration of powers as she judge oversees it and its jury final verdict

o In addition, plea bargains are a component of the adversary system that allow for the acquirement of greater justice to both the offender and the victim. A plea bargain is a formal statement of guilty or innocence by the accused.

o According to The Australian Parliament of Australia, in over 80% of criminal cases, the accused persons plead guilty to the charge.

o Charge negotiation is faster and increases the rate of criminal convictions bringing greater justice to victims of crime highlighting the effectiveness of the criminal justice system in attaining justice through higher conviction rates.

o Conversely, the adversary system ensures that there is no concentration of powers in the court. During a criminal trial, an impartial judge oversees the case whilst the jury makes final verdict, and thus, the separation of powers enhances the protection of the rights of the accused.

o This enables a range of perspectives to be taken into consideration before making the final verdict. In this way, the adversarial system is highly effective in obtaining justice for the accused and victims of crime.

4: Ineffective: plea bargaining, guilty pleas do not bring justice to victims, R v Loveridge, Plea bargaining pressure, Jill Meaghar false confession

o However, plea-bargaining also creates problems for equality as it places two people, who have committed the same crime, in situations where they receive different treatment and outcomes.

o Although guilty pleas reduce the cost and delay in the court system, they also lead to reductions in sentences for the offender that may bring injustice to victims of crime. This means that those who plead guilty are generally given a lesser sentence than those who are found guilty by the court.

o In the case of R v Loveridge (2013 ), the DPP stroke a plea deal with killer of 14-year-old Thomas killer, reducing his sentence from murder to manslaughter.

o In addition, plea bargaining places accused victims in situations where they feel the need to plead guilty. This may lead to a series of bullying and manipulation of the accused that forfeits their right to trial.

o This was evident in the case of Jill Meagher, who was a mentally ill civilian forced into pleading guilty to a murder he did not commit.

o Thus, the adversarial system fails to balance the rights of the victim and the offender whilst also lacking consistency. As a result, justice is not attained whilst vulnerable members of the community face detrimental consequences.

Conclusion:

o The adversary system has varying levels of effectiveness in attaining justice for the victim, accused and the community.

o The success of the adversarial system depends on both sides being represented equally.o However, the adversarial system promotes inequality, bringing injustice to vulnerable groups in society seen in

concepts of the collection of evidence and plea-bargaining. o Despite this, the adversary system is extremely effective in balancing the rights of all parties in court allowing for

just outcomes. o In this way, the adversary system is only some-what effective in balancing the rights of all individuals within

society to attain greater justice.

3. Assess the use of defences to criminal charges in achieving justice

Definition of provocation and mentall illness

o Provocation and Mental Illness are examples of defences used in criminal charges that protect the rights of the offender by preventing them from receiving full punishment.

o Each of these measures demonstrate varying levels of effectiveness in achieving justice.o Provocation is described as a defence in which the defendant claims that their actions were a direct result of the

other person’s actions, which caused them to lose control and commit the offence in question. o When the accused uses mental illness as a defence, they argue that they were at a state of mental incapacitation

at the time of the act, meaning that the accused cannot have formed the mens rea at the time of the offence. o When used during criminal trial, both defences are variable to attaining justice to the extent that mostly protects

the rights of the accused.

Provocation Effecitve: Battered Wide Syndrom and Dom violence, Protects the rights of women

o Provocation is mostly effective in attaining justice for domestic violence victims making it an effective measure in protecting the rights of individuals who have suffered ‘battered wife syndrome’.

o According to BOSCAR in 1990-93 7.3% of cases used provocation with 70% being successful.o The 2012 SMH article, “Losing provocation defence could harm abused women”, indicated that several lawyers

have warned a parliamentary inquiry that ''BATTERED'' women who kill their abusive husbands will be disadvantaged and are more likely to be jailed for murder if the defence of provocation is abolished.

o The provocation defence is upheld to defend women who killed their violent partner’s to have their charge downgraded to manslaughter. The article states that, “Such women, if that defence was removed, would be convicted of murder'', demonstrating the role of provocation in obtaining justice for victims of domestic violence.

o Additionally the ABC 2013 article, “Inquiry says provocation defence should stay“, invoked that compelling evidence was revealed “that the defence of provocation serves an essential part in the criminal justice system”. The official stated that provocation was “essential for protecting women who have been subject to ongoing domestic violence”, highlighting the importance of provocation in obtaining justice for women who have been subject to ongoing domestic violence.

o In this way, provocation is extremely effective in achieving justice for suffers of domestic violence.

Provocation Ineffective: Victim blaming, Also does no reflect socity’s values in the case of R v Singh,

o However, provocation has been a topic of controversy as it implies that the victim has a level of responsibility in the crime.

o The aim of provocation, for the defence, is to prove that their actions were as a result of another persons actions, ultimately placing the blame on the prosecution.

o According to SMH article “Out-of-stop excuse is no defence”, other states (apart from NSW) in Australia have abandoned the provocation defence, or restricted its use, “because it has served to excuse male violence against women and promote a culture of victim blaming”. The article upholds the notion that provocation is an out-dated notion hailing from a time when “men's honour and assumed inability to exercise self-control were more important than women's rights or equality”.

o In this way, provocation does not reflect the moral and ethical values of society in regards to cases of infidelity and accused mens lack of control.

o This notion is evident in the case of R v Singh, where the accused received 6 years for murdering his wife after she told him that she wanted a divorce. In trial, the jury acquitted the accused of murder and agreed he lost his control, causing community outrage. As a result, the provocation defence did not serve justice to the community or the deceased as Singh received a lesser punishment.

o Additionally, the provocation defence, in this case, was used as a mechanism to encourage a culture of victim blaming during cases where “men kill their wives and get away with it”.

o In the case of R v Won, the accused husband killed his wife’s lover after found in bed, receiving only 7.5 years jail following the acceptance of his provocation defence. This leads to a lack of justice for both the prosecution and society, as the needs of the community have not been met.

o A Victorian study of cases between 1998 and 2007 showed the most common maximum sentence for provocation manslaughter was eight years six months compared with 18 years for murder displaying the disparity between the two sentences.

o In cases where provocation is successful, someone who might rightfully have been convicted of murder will receive the lesser charge of manslaughter, resulting in injustice for both the victims and the community.

Mental Illness Effective: Waterlow case

o Following the M'Naghten's case (1843), precedent was established to acknowledge mental illness as a complete defence during trial.

o When the accused uses mental illness as a defence they must prove that their state of mind prevented them from knowing that what they were doing was wrong.

o In cases where the defence is successful, and they are found ‘not guilty’ by reason of mental illness, the accused will usually have to go to a psychiatric institution with their mental health monitored by the Mental Health Review Tribunal.

o The defence is largely successful in attaining justice for vulnerable members of society as it allows for rehabilitation.

o In the case of, R V Waterlow, the accused was charged with murder of sister and father on the 9th November 2009. Waterlow was found not guilty of murder due to his psychological state at his 2011 trial, and as result, not legally responsible for his actions.

o Justice Hidden ordered that Waterlow be held in Sydney's Long Bay Prison Hospital until he is deemed fit to be released into the community.

o In this case, the mental illness defence was extremely effective as both the community was protected from harm and the accused was not held accountable for something they did not understand. Due to this balance, the mental illness defence is extremely effective in attaining justice for all members of society.

Mental Illness Ineffective: what is mental illness today?, people use insanity plea as a way out

o However, community concerns have been expressed in regards to the notion of what constitutes “mental illness” as a defence during trial.

o The notion of what is constituted as mental illness when the precedent was established is argued to out date modern society, as it is not supported by current medical theory and knowledge.

o Thus, mental illness lacks justice as it does not reflect the current values upheld by society. o The SMH article, “Criminals using mental illness as defence frustrating police and prosecute”, indicated that

mental illness is used too often as defence making it is “an easy way out”. As a result, when offenders are acquitted of an offence due to this defence, it serves as a severe injustice to both the victim and the greater society as they are placed at risk.

o However, The NSW Law Reform Commission report on Mental Illness (2012), claimed that an insanity plea is not as easy way out, as offenders can still be institutionalised when found not guilty.

o Additionally, the mental illness defence is extremely hard to establish, as it is extremely rigorous to prove. This makes the defence inaccessible, serving as an injustice to vulnerable individuals who wish to use it.

o In this way, the mental illness defence is some-what ineffective in attaining justice for those who wish to use it as it lacks access and does not reflect the current moral and ethical values of contemporary society.

Conclusion

o Provocation and Mental Illness display varying levels of effectiveness in achieving justice. o Whilst both measures meet the needs of offenders in allowing them to decrease their sentences, both

measures serve as an injustice to victims of crime as the accused does not receive a satisfactory penalty. o Conversely, it is apparent that both defence mechanisms do not reflect the current moral and ethical values

of contemporary Australian society, and as a result, fails to achieve justice. o Despite this, both mechanisms meet the needs of vulnerable groups within society such as the mentally ill

and victims of domestic violence. o This results in the attainment of justice as exceptions are made in consideration of the situations suffered by

such groups. o In this way, the defence of mental illness and provocation balance the rights of the victim, the offender and

society to the extent where the accused is mainly taken into consideration.

4. Describe the role of courts in the criminal justice process

Intro: talk about adversary system 1: Lower Courts – indictable cases 2: Higher Courts – summary3: Court of Appeals – justice for offenders 4: Alts to Court - justice

5. To what extent are courts the only means of achieving justice within the criminal justice system?

What are courts, changing social values, binding legislations, alternative measures, how courts are only the PREDOMINENT system

o Underpinned by common law and the adversarial system, the Australian court system has proved to be both reliable and dependable within the criminal justice system as a means of achieving justice.

o However, due to changing social values, alternatives to court have also emerged over time, providing an effective substitute to the courts system to better facilitate for rehabilitative services.

o Over time, courts have developed issues of enforcement and equality, which have affected their ability to continue to achieve justice for all stakeholders.

o Binding legalisation such as the Evidence Act 1995 (NSW) and the Criminal Procedures Act 1986 (NSW) have remained as elements that provide greater justice within the courts, though the administration of legal aid has proved to be extremely effective for most financially disadvantaged accused offenders.

o However, alternative measures such as the; the measures under the Young Offenders Act 1997, restorative justice, and circle sentencing have proved to be largely more effective in reducing recidivism rates, whilst also demonstrating resource efficiency and characteristics of rehabilitation and deterrence.

o Courts to an extent, are merely the predominant means of achieving justice within the criminal justice system, although other techniques, which are less commonly used, have proven to be more effective.

Courts Effective: For indictable offences, R v Milat and Jurors who represent society, Refrom to the Crimes Appeal and Review Act, Safeguards under legalisation such as legal aid – evidence act – and criminal procesdures act, Scaf

o To an extent, courts are the only means of achieving justice, depending on the circumstances of the case. In indictable offences, such as murder or terrorism, the courtroom is the appropriate vehicle for achieving a just and fair outcome.

o Exemplified in cases such as R v Milat, juries are often utilised in order to represent a sample space of the greater society, thus bringing greater justice to the community through their involvement.

o In recent times, law reform to the The Crimes (Appeal and Review) Act 2001 (NSW) has warranted justice through the balancing the rights between the accused, the victim and the greater community. The 2008 amendments allow for acquittals to be quashed if; fresh and compelling evidence is brought to light and if the acquittal was tainted through inadmissible and external influences. Here, the law has demonstrated extreme responsiveness to community concerns, bringing greater justice for both victims and offenders within the court system.

o Other protections and safeguards within the court system include; the right to fair trial (Dietrich v The Queen), The provision of legal aid under the Legal Aid Commission Act 1979 (NSW) for the financially disadvantaged, the strict use of evidence under the Evidence Act 1995 (NSW) to protect the rights of victim and offender, and various amendments under the Criminal Procedures Act 1986 (NSW) which respond to community concerns, achieving greater justice for all members of the community.

o For example; in the case of Mohammad Scaf, evidence emerged that two jurors had visited the crime scene on their own warrant. Here, the case was quashed and set for a retrial, demonstrating the effectiveness of the court system in bringing greater justice to offenders.

o Courts are not the only mechanism, however they are the most effective method in serious indictable offences as they aim to provide greater justice for the victim, the offender and the greater community.

Courts Infeffective: Summary matters, long, legal fees with barristers, legal representation,

o In summary matters, the courtroom is often intimidating due to its formal preceding and lengthy process, causing an adverse effect on the obtainment of justice.

o According to ABC news article, ‘'Debt vultures' preying on financially vulnerable as lawyers prepare to launch $30m class action’, senior barristers can often charge a legal fee of around $8000 per day. Often a case will go over many weeks and/or months before a result is reached, thus demonstrating extreme resource inefficiency due to the excessive burden on money and time.

o As examined in the case R v Dietrich 1992, there is no implied right to legal representation, thus affecting the outcome of the trial. This becomes quite prohibiting for the average person as legal aid is only awarded on a strict basis and only to the extremely financially disadvantaged, resulting in adverse affects for the rights of the offender.

o According to the SMH article “Tough means test locks low-income earners out of legal aid’, free legal representation is only available to people who earn less than $318 a week, resulting in the numbers of people representing themselves in the local court to increase (in 2008 it was 41%).

o In this way, the court system has demonstrated strains on time, money and legal representation, demonstrating its ineffectiveness in providing justice for both the offender and the victim

Alternative Methods: What they are, Circle sentencing effectiveness for ATSI people

o However, due to recent developments in the law, there has been an introduction of alternate methods of sentencing to supplement the court system.

o Alterative methods such as circle sentencing, restorative justice and diversionary programs aim at achieving justice through the diversion of offenders - to reduce recidivism and create a harmonious balance between the rights of the victim and the offender.

o Such methods also aim to rehabilitate the offender by making it a sentence to undertake specific programs such as drug and alcohol treatments. Due to community concerns over Indigenous incarceration rates, Circle sentencing is an alternate method used for some Indigenous offenders. It involves a circle made up of local community members, a magistrate, the offender, the victim and their respectful representatives.


o This is further exemplified through the comments made by Don Weatherburn as circle sentencing gives “Aboriginal Elders direct involvement in the sentencing of Aboriginal offenders encourages offenders to critically reflect upon their behaviour”.

o Thus, circle sentencing is extremely effective in substituting the role of courts in improving understanding between ATSI communities and courts to reduce recidivism among offenders, bringing greater justice to ATSI offenders.

Alternative Methods: Young Offenders Act, Restorative Justice, BOSCAR report, how they achieve justice for children

o When the criminal justice system is dealing with juveniles, those aged between 10 and 18, extra care and consideration needs to be taken due to their lack of maturity. Hence a rehabilitative focus away from court is the most appropriate means of achieving justice for young offenders.

o The Young Offenders Act 1997, is rehabilitative in nature and establishes a system of cautions, warnings and fines. If it is a serious matter, and the courts are deemed necessary, other alternatives, such as Youth Justice Conferencing (YJC) achieves justice. YJC is not informal but effective, cheap, efficient, quick and enforceable. It promotes better family understanding and provides the offender with support services, bringing greater justice to the offender and their family.

o Research taken in the BOSCAR 2013 report on “Participant Satisfaction with Youth Justice Conferencing” illustrated that “the offender and victim satisfaction is high immediately following a YJC” with a victim satisfaction rate of 88%. These diversionary programs not only achieve justice for both the victim and the offender, but also save the state’s resources and are more resource efficient.

o Barbara Holborow, a former Children’s Court magistrate stated “It costs a lot more to keep a kid in a detention centre than it does for programs such as YJC”.

o Courts are the only mechanism to an extent, which achieves justice, however, when the criminal justice system deals with young offenders, other means should be implemented to achieve justice as it promotes a rehabilitative focus.

Conclusion

o When a crime is omitted the most commonly used method of achieving justice for the victim, their family and society is through the court system.

o Although this delivers justice to an extent within the criminal justice system, alternate forms of sentencing, such as circle sentencing and youth justice conferences also achieve justice.

o The court process is long and expensive, thus making it prohibiting for the ordinary Australian.o In most cases, when restorative justice or rehabilitation methods are utilised, justice is achieved for the

victim and the offender is less likely to reoffend in the future. o In this way, though courts are the most common form of attaining justice within the criminal justice system,

there are a vast variety of alternate measures that aim to divert offenders and increase resource efficiency for summary offences.

6. Assess the role of discretion in the criminal justice system – in the criminal trial process

1: Plea-bargaining and charge negotiation

o How it is the discretion of the offender if they want to plead guilty or innocent

● An agreement with the DPP and the accused that involved the acceptance of a guilty plea, usually in exchange for something else

● Where the accused agrees with the prosecution to please guilty to particular charge/charges 🡪 Usually pleading guilty to a LESSER charge in exchange for other higher charges being WITHDRAWN

● Cannot guarantee a particular sentence – this can only be determined by the judge-based on nature of offence and sentencing guidelines – but charge negotiation may be taken into account

o Case Example: Dib v Director of Public Prosecutions (2002) Supreme Court of NSW

▪ Mustapha Dib charged with murder of 14 year old boy 🡪 pleaded not guilty with alibi 🡪 10th day of trial offered a plea agreement by DPP 🡪 pleaded guilty to manslaughter on the grounds of provocation

▪ Justice Hulme said, “he had grave reservations” and stated “if the crime is murder or nothing, it seems a manslaughter plea is an abuse of process. There is no basis for accepting a plea to do so would result in the accused convicted of an offence for which he is not guilty”

▪ “an abuse of process where there had to be some perverse or unwarranted view of the facts or evidence”

o Discretion of the judge of what charge they want to lay, implications for societyo Not good for the community but is cost-efficient

2: Jury discretion

o Rules in the: Jury Act 1977 (NSW)o IT IS protected in the Constitution 🡪 Section 80 of the Australia Constitution Act (Cth) to Trial by Jury o Shows sample space of community 🡪 are central to adversary system

● Reflection of the historic right of an accused person to be judged 🡪 impartially by a group of peers bases on evidence presented

o Bad bc there are amateurs

▪ Done Weatherburn “It is occasionally suggested that jurors do not understand what is going on in criminal trials. This study indicates that the overwhelming majority of jurors have little or no problem understanding judicial instructions on the law or the judge’s summing-up of evidence at the end of the trial.”

▪ Publication: “Juror’s understanding in criminal trials” 🡪 Understanding of the phrase “beyond reasonable doubt” 🡪 55.4% meant that ‘sure that the person is guilty’

o Ineffective in 🡪 R v Bilal Scaf; Mohammed Scaf – WAS cost inefficient

● Two appeal hearings as in first appeal case

● Retrial ordered because two jury members visited the scene of the crime to look at the lighting in the park at night 🡪 the victims refused to testify at yet another trial

● Law reform 🡪 Criminal Procedure Amendment (Evidence) Act 2005 amended the Criminal Procedure Act 1986 ALLOWING for transcript evidence to be used in certain types of trials

● Enabled a retrial to occur 🡪 convicted 🡪 justice achieved

3: Judge discretion

o Statutory and guideline judgements everything is layed out for the in an act but it up to them to
















1. To what extent is law reform effective in providing just outcomes in the criminal justice system – in the criminal trial process + The effectiveness of legal and non-legal measures in achieving justice in relation to crime – the criminal trial process

Intro:

1: Provocation Defence

o Condition

● R v Singh (2012)

⇒ Got 6 years for killing his wife after she told him that she wanted a divorce

⇒ In trial – jury acquitted of murder and agreed he lost his control

⇒ Defence of provocation

⇒ CAUSED COMMUNITY and media OUTRAGE (conditions of law reform)

⇒ How this can be used as a mechanism to kill wiveso NSW Parliament created a Partial Provocation Committee to look at whether the defence should be kept

made recommendations:

● POSITIVES:: Justice for women of domestic violence 🡪 no threat so they need it, Women cannot use self-defence, because there is no threat and thus need to use provocation

● NEGATIVES:: Victoria already removed the defence after R v Ramage (2004) in which a man only got 11 years for killing his wife for insulting him

o THIS LED TO LAW REFORM: Crimes Amendment (Provocation) Act 2014

● The committee recommended that they keep 🡪 but they still enacted new law

● There is still the test of “would as ordinary person do it?”

● Added requirement 🡪 that the victim’s actions themselves had to be an indictable offence

● Sexual component of defence removed 🡪 not available to use where victim made a non-violent sexual advance to accused (ie. cheating)

● It is not counted as extreme provocation is it’s a non-violent sexual advance

● REFORMED BECAUSE OF community concerns 🡪 responsiveness

2: Majority Verdicts

o In 2006, the NSW parliament amended the Jury Act 1977 (NSW) with the Jury Amendment Act (Verdicts) Act 2006 (NSW)

▪ Condition: R v Burrel (2006) 🡪 led to the law reform as the trial was very expensive (had extensive police investigations, a coronial inquest, 2005 trial leading to hung jury, and 2006 retrial gaining murder conviction) 🡪 government responded to publicity surrounding aborted tiral by introducing 2006 legislation

▪ To allow majority verdict of 11 to 1 or 10 to 1 in cases where reasonable time for deliberation has passed and the court is satisfied that a unanimous verdict will not be reached

▪ Amendments 🡪 avoid delays, cost and stress on victim of a retrial

▪ Majority verdict: remove possibility of a reasonable doubt decision if one juror is disagreeing

▪ Controversial: better to have a retrial that risk innocent people being convicted

▪ Does not apply to Commonwealth offences as unanimous verdict for those offences are protected under the Australian Constitution

o Article: SMH “Court verdicts: More found innocent if no jury involved”

▪ Current Law in NSW: The NSW government changed the law in 2011 so that defendants could apply to the court for a judge-alone trial, removing the requirement for the prosecutor to consent

3: Evidence Act following R v Scaf – Jury screwed up + Sexual Assault Cases

o Mostly balances all the rights as everyone gets most of a say 🡪 community + offender

● Follows the testament of ‘innocent until proven guilty’

● In front of a impartial judge

● All evidence must be admissible under the Evidence Act 1995

● E.g. R V SCAF following the initial sentence, evidence revealed that two jurors had conducted an unprecedented investigation of the crime scene to their own experiment. As a result, the Court of Criminal Appeal quashed the accused’s convictions and ordered a retrial on the basis of breaching the Evidence Act 1995.

o Section 294B of the Criminal Procedure Act 1986 (NSW)

▪ Added in 2004

▪ Allows victims of certain sexual offences to testify via closed-circuit camera or other alternative arrangements so they don’t have to directly face the accused

o Section 294A of the Criminal Procedure Act 1986 (NSW)

▪ Added in 2006 in response to the gang rape trial R v MSK and MAK (2004)

▪ It states that where the accused in certain sexual offence trials is not represented by a lawyer, the victim cannot be examined by the accused. Instead, the court may appoint a person to question the victim on behalf of the accused, asking the victim only the questions that the accused gives them. The person cannot give the accused any legal advice

4: Mandatory pre-trial Defence Disclosure Act

o Criminal Procedure Amendment (Mandatory Pre-Trial Defence Disclosure) Act 2013

▪ Government passed a legislation to make it compulsory for defences to be “disclosed” (brought up) BEFORE the trial

▪ Aims to a voice “trial by ambush” 🡪 offender can’t put up last minute defence, judge can allow jury to draw an unfavourable inference

▪ Compliments the “right to silence’ amendments aka. Evidence Amendment (Evidence of Silence) Act 2013

▪ Removed presumption of innocence = balance of rights

▪ Increases demands on prosecution and defence 🡪 impacts poor/marginalised groups, failure to comply can have serious consequences (adverse impact)

▪ David Harman, Alternative Law journal (2013): Reforms tilt the playing field of NSW criminal justice 🡪 presumption of innocence and right to silence aims to redress the imbalance of power and resources between state-sponsored prosecution (DPP) and the individual defendant

▪ GOOD FOR: the prosecution (DPP), victims, society

▪ BAD FOR: Defendants o BALANCE OF RIGHTS

▪ Higher standard of proof (beyond reasonable doubt) is given to the prosecution

▪ To reduce charge by using defence 🡪 the defendant can only use the balance of probabilities and it on their onus

4: SENTENCING AND PUNISHMENT

1. How successful are alternative methods of sentencing in achieving just outcomes?

Intro: Largely effective 1: Youth Justice Conferencing – very effective

o When the criminal justice system is dealing with juveniles, those aged between 10 and 18, extra care and consideration needs to be taken due to their lack of maturity.

o Hence a rehabilitative focus away from court is the most appropriate means of achieving justice for young offenders.

o The Young Offenders Act 1997, is rehabilitative in nature and establishes a system of cautions, warnings and fines.

o YJC is not informal but effective, cheap, efficient, quick and enforceable. o Research taken in the BOSCAR 2013 report on “Participant Satisfaction with Youth Justice Conferencing”

illustrated that “the offender and victim satisfaction is high immediately following a YJC” with a victim satisfaction rate of 88%

o Barbara Holborow, a former Children’s Court magistrate stated “It costs a lot more to keep a kid in a detention centre than it does for programs such as YJC”..

2: Circle Sentencing – mostly effective, but no evidence to say it is

o Due to community concerns over Indigenous incarceration rates, Circle sentencing is an alternate method used for some Indigenous offenders.

o It involves a circle made up of local community members, a magistrate, the offender, the victim and their respectful representatives.


o Don Weatherburn - “Aboriginal Elders direct involvement in the sentencing of Aboriginal offenders encourages offenders to critically reflect upon their behaviour

o STATISTICS: THE NSW Bureau of Crime Statistics and Research 🡪 Reported that ATSI offenders were no less likely to reoffend in 15 months after circle sentencing than those sentenced in traditional court settings

3: Diversionary Programs – mostly effective

o An alternative to the traditional court system that focuses on the rehabilitation of offenders e.g. The Drug Court

o A court program set up to divert certain offenders from more traditional criminal processes in the hope that they can be rehabilitated and encouraged not to reoffend.

o Crimes (Sentencing Procedure) Act 1999 (NSW)o Drug Court Act 1998 (NSW)o NSW Bureau of Crime Statistic and Research released a Report in 2000 found

● That those who has completed diversionary programs were less likely to be reconvicted that offenders sentenced with traditional penalties

● The drug court is more cost-effective than prison in reducing drug-related recidivism

4: The MERIT Program

o Alternative sentencing – those who suffer from alcohol and drugso Rehabilitate o Magistrates early referral into treatment systemo Keeps people from drug people OUT OF JAIL 🡪 break substance abuseo REHABILITATION o For eligible defendants in Local Court 🡪 eligibility, have to be able REALEASED on bailo Need to be an adult o HAVE TO AGREE to participate o Not indictable offences – or sex offences o Offers residential rehabilitation – case management – counselling ETCo Treated as a Health issue – not a legal issueso Rather than punitive incapacitationo Expanded program – found all through Sydney – readily available

o MERIT justice annual report 2014

▪ Decreased rates of referral from 2013

▪ Of the 3,215 defendants referred to the MERIT program 61% people were accepted (those who didn’t get through – didn’t demonstrate the drug problem)

▪ 65.1% of the 2,004 MERIT participants who exited in 2014 had met ALL program requirements

▪ INEFFECTIVE: 12 months after exiting MERIT program 34.6% reoffended – but this included both completers and non-completers

o Devoting recourses to rehab rather than criminal justice o Reflects how we view drug offences today

2. Evaluate the effectiveness of different types of penalties, including diversionary programs

Intro: mostly effective

● Incarceration should be last resort

● Fines are not effective

● Refer to purposes of punishment as a guideline; retribution, deterrence, incarceration, rehabilitation

1: Incarceration - effective for community

o When an offender is found guilty of an offence and is sent to a correctional facility (jail), Harshest penality 🡪 last resort, Serious indictable offences, Crimes that require retribution, Last resort

o R v Dean (2013) – nurse let fire to nursing home, 11 people died, 8 injured, Sentenced – lifeo Ebony Case Starvation of child, At least 30 years, max 40 yearso Provides justice to the victim through retributiono Not resource efficient (It costs $250 per day to keep a prisoner in NSW, or more than $1 billion per year

(productivity commission 2014))o Relatively ineffective (BOSCAR):

⇒ As imprisonment does not deter offenders from reoffending

⇒ Offenders given a suspended sentence are no more likely to re-offend than those given a prison sentence of up to 12 months in duration

⇒ No differences were found in rates of reoffending between the two groups of offenders.

⇒ During the 36 month follow-up period, 42% of those receiving suspended sentences and 43% of those receiving custodial sentences were convicted of a further offence.

o Impacts the offender’s life after prison:

⇒ Very difficult to get a job

⇒ Impacts family relationships

⇒ Hard to fit back into society

2: Community work – integrate into society

o A penalty imposed by the court instead of detention or imprisonment. This allows for punishment to be inflicted while also providing the opportunity for rehabilitation, by making amends with the community. It involves compulsory community work for up to 500 hrs in the community instead of imprisonment

o EFFECTIVE: Cost effective - Beneficial to the community - Form of retribution - People able to maintain family and community ties - Allows the offender to rehabilitate, while still penalising them

o Ineffective

o BOCSAR 2013)

▪ However, only 3.4 per cent of offenders receive a community service order, whereas more than 20 per cent are placed on a bond, suggesting that the differing punishment methods are not being used correctly in the sentencing procedure

▪ Adult offenders are also 19.8% more likely to reoffend on a good behaviour bond, as compared to 17.3 % COS.

3: Fines etc – not effective as rich people don’t care

o A monetary penalty imposed on an offender and usually applies for less serious offences, such as driving offences, or for particular types of offences, such as some violations of environmental law.

o On-the-spot fines system in NSW is called a Work and Development Order (WDO) o The Fines Act 1996 (NSW) giving court ability to set a lower fine less than max considering the offenders

capacity to payo EFFECTIVE: Allows the offenders to give back to the community, Quick and resource efficient and Raises

revenue o INEFFECTIVE

▪ Sentencing Council Report: Effectiveness of Fines as a Sentencing Option: 2010 introduced the Work Development Orders as alternative to paying fines 🡪 example of laws responsiveness to address inequities in using fines to attain justice for low SES vulnerable people

▪ However, people of low SES commit economic crimes due to necessity 🡪 fines result in less money and they may need to offend more

▪ However, the largest study of fines (as a deterrent) ever conducted in Australia has shown that higher fines do not reduce the risk of reoffending (The deterrent effect of higher fines on recidivism: driving offences (2007))

4: Diversionary Programs – mostly effective as it aims to rehabilitate


● A court program set up to divert certain offenders from more traditional criminal processes in the hope that they can be rehabilitated and encouraged not to reoffend.

● Crimes (Sentencing Procedure) Act 1999 (NSW)

● Drug Court Act 1998 (NSW)


⇒ That those who has completed the program were less likely to be reconvicted that offenders sentenced with traditional penalties

⇒ The drug court is more cost-effective than prison in reducing drug-related recidivism

3. Examine the implications of post-sentencing considerations in achieving justice

Intro: Yes mostly

1: Protective Custody

o Inmates are moved and separated from otherso For inmates whose crimes other prisoners might find offensive

⇒ Child Sexual Assault

▪ Bilal Scaf was under this because of the threat of his inmates

⇒ If politicians and police commit a crime

▪ Eddie Obeid is a former Australian politician for the Labor party and a dual Lebanese–Australian citizen. In 2016, he was convicted for misconduct in public office and sentenced to five years in prison.

▪ DPP case Police v Power (2007) got a lesser sentence - Could accidently classify a person wrong

o Restricts opportunity got those in custody to work and access education programo Could lessen sentence and lack retribution o Balances rights of offenders 🡪 safe from harm when in prisons

2: Sex Offenders

o The Australian National Child Offenders Register (ANCOR) and the New South Wales Child Protection Register:

⇒ web-based systems designed to assist police with the registering and case management of those who have committed sexual offences against children.

o Established under the Child Protection (Offenders Registration) Act 2000 (NSW),

⇒ A person convicted of specified violent or sexual offences against a child must register at the local police

o EFFECITVE

▪ Sexual offender registries are justified by their supporters on the basis that they protect the community.

▪ Keeps community safe

▪ If info becomes public some people may undergo community harm

▪ Some residents feel object to person living in community o INEFFECTIVE

▪ Sometimes contentious, as they target certain offenders long beyond the period of the sentence they have been required to serve

▪ Deny the chance for the offender to move on in the rehabilitation process.

▪ Supporters respond by claiming that the severity of the original crime, added to the ongoing risk of reoffending, outweighs the burden that the registry requirements impose on the offender.

3: Parole

o Refers to the conditional release of a prisoners from custody after the completion of the minimum term of the sentence, that is the non-parole period by the judicial officer at sentence

o Still serving sentenceo Slowly being brought into society o EFFECTIVE: Encourages people to behave well, Close supervision helps to assimilate into society, Intend to assist

in gradual integration into community to reduce recidivism o INEFFECTIVE

▪ More likely to reconvict

▪ Is it inappropriate for really serious and repeat offenders

▪ Controversy as some commit crimes during parole

▪ e.g. Bayley was out on parole on a sex offence when he murdered Jill Meaghar

● BOSCAR: Those released on parole were more likely to be reconvicted than those released without supervision

4: Deportation

o Migration Act 1958 (Cth)

⇒ A migrant living in Australia (who is not a citizen) may be deported if they are tried and convicted of a criminal offence.

⇒ Under ss 200 and 201 of the Act, if receive 12 months or more in their first 10 years of residence, the responsible minister (usually the Minister for Immigration) may decide that they should be deported from Australia.

o Good character test is failed o CASE Example: Victor Chang

▪ His killer after 21 years was deported back to Malaysia o Effective

▪ Extremely serious effect of a sentence of imprisonment.o Ineffective

▪ Controversial 🡪 they appear to treat a person as a problem that can be resolved by being moved elsewhere, but without any follow-up or support once outside the jurisdiction. E.g. person may have been living in Australia for decades yet still fall under the requirements of these sections. The person may be removed from family and friends to a country they know nothing about and/or that has a language they don’t know

▪ In Haneef case 🡪 did not commit crime

▪ Cannot be reversed by court

1. Evaluate the effectiveness of sentencing and punishment as a means of achieving justice + Assess the extent to which the Sentencing and Punishment effectively balances the rights of victims, offenders and society + To what extent does the law reflects moral and ethical standards – Sentencing and Punishment

I ntro: Mostly

1: Purpose of Punishment - effective

o Retribution

▪ Punishment considered to be morally right or deserves because of the NATURE of the crime

▪ Prevents victims from taking the law into their own hands 🡪 but it can lead to victims feeling marginalised by process

▪ Revenge for society and the victim

▪ E.G. Lengthy custodial sentence: Cronulla Riots – teenager who burnt Aus. glad had to spend part of his punishment with RSL members

▪ More serious crime = more serious punishment e.g. murder sentenced to life for TAKING a life

▪ Ensure that the punishment is PROPORTIONATE to the crime but not violent or harmful to offender

▪ E.g. r V Scaf 35 years for horrific nature of offence o Incarceration

▪ Making the offender incapable of committing future offences by restricting their freedom

▪ Aims “To protect the community from the offender” and prevent reoffending (CSAPA1999) 🡪 Removes dangerous criminals from society in order to protect the community

▪ Isolate them 🡪 home detention, community work, licence cancellation, imprisonment (most effective and harshest)

▪ E.g. CASE: R v Bayley (2013) Jill Meaghar case 🡪 he was a repeat offender, was in a high security, so he does not commit further sexual assault and murders

2: Alt forms – circle sentencing and restorative justice

o Diversionary Programs – mostly effective


● A court program set up to divert certain offenders from more traditional criminal processes in the hope that they can be rehabilitated and encouraged not to reoffend under Crimes (Sentencing Procedure) Act 1999 (NSW) AND Drug Court Act 1998 (NSW)


⇒ That those who has completed diversionary programs were less likely to be reconvicted that offenders sentenced with traditional penalties

⇒ The drug court is more cost-effective than prison in reducing drug-related recidiviso The MERIT Program

● Alternative sentencing – those who suffer from alcohol and drugs, Aims to rehabilitate

● Keeps people from drug people OUT OF JAIL 🡪 break substance abuse

● HAVE TO AGREE to participate 🡪

● Offers residential rehabilitation – case management – counselling ET

● Treated as a Health issue – not a legal issues

● Rather than punitive incapacitation

● Expanded program – found all through Sydney – readily available

● MERIT justice annual report 2014

⇒ Decreased rates of referral from 2013

⇒ Of the 3,215 defendants referred to the MERIT program 61% people were accepted (those who didn’t get through – didn’t demonstrate the drug problem)

⇒ 65.1% of the 2,004 MERIT participants who exited in 2014 had met ALL program requirements

⇒ INEFFECTIVE: 12 months after exiting MERIT program 34.6% reoffended – but this included both completers and non-completers

3: Mandatory Sentencing – good for everyone but offender

o One Punch Law










4: Post sentencing – continued and preventative is mostly good, sex offenders bad for offender

o Continued/Preventative Detention

● he most severe type of preventive detention is legislation that is targeted at individual offenders.

● This type of law was held to be unconstitutional in the High Court case of Kable v DPP (1996) 189 CLR 51.

● However, most Australian jurisdictions have legislations enabling general powers of preventive detention in restricted circumstances.

● E.g NSW: the controversial Part 2A of the Terrorism (Police Powers) Act 2002 (NSW) allows police detain a person in custody for a maximum period of 14 days if suspecting terrorism

● Victoria used the controversial anti-terror powers in April 2015 to detain five terror suspects

● E.G. DR HANEEF o Protective Custody

● Inmates are moved and separated from others

● For inmates whose crimes other prisoners might find offensive

● Child Sexual Assault - Bilal Scaf was under this because of the threat of his inmates

● If politicians and police commit a crime - Eddie Obeid is a former Australian politician for the Labor party and a dual Lebanese–Australian citizen. In 2016, he was convicted for misconduct in public office and sentenced to five years in prison

● Restricts opportunity got those in custody to work and access education program

● Could lessen sentence and lack retribution

● Balances rights of offenders 🡪 safe from harm when in prisons

1. Discuss factors that affect sentencing decision, including the purposes of punishment and the role of the victim – justice

Intro: Many factors

1: Purposes of Punishment – Retribution and Incarceration

o Retribution

▪ Punishment considered to be morally right or deserves because of the NATURE of the crime

▪ Prevents victims from taking the law into their own hands 🡪 but it can lead to victims feeling marginalised by process

▪ Revenge for society and the victim

▪ E.G. Lengthy custodial sentence: Cronulla Riots – teenager who burnt Aus. glad had to spend part of his punishment with RSL members

▪ More serious crime = more serious punishment e.g. murder sentenced to life for TAKING a life

▪ Ensure that the punishment is PROPORTIONATE to the crime but not violent or harmful to offender

▪ E.g. r V Scaf 35 years for horrific nature of offence o Incaceration

▪ Making the offender incapable of committing future offences by restricting their freedom

▪ Aims “To protect the community from the offender” and prevent reoffending (CSAPA1999) 🡪 Removes dangerous criminals from society in order to protect the community

▪ Isolate them 🡪 home detention, community work, licence cancellation, imprisonment (most effective and harshest)

▪ E.g. CASE: R v Bayley (2013) Jill Meaghar case 🡪 he was a repeat offender, was in a high security, so he does not commit further sexual assault and murders

2: Purpose of Punishment – Rehab and deterrence

o Deterrence

▪ Something that discourages or is intended to discourage someone from doing something 🡪 relates to passing a higher sentence in the hope that fear of punishment will prevent future offences

▪ Is mentioned in Section 3A(b) of the C(SAP) Act 1999 (NSW)

▪ Discourage re-offender/recidivism

▪ Effectitvenss BOSCAR 2010: Prison terms do no act as a specific deterrent to offenders for many crimes , Crime levels are not affected by the LENGTH of a sentence and criminals do not plan on getting caught, Little evidence to suggest that individual criminal sentence are an effective deterrent 🡪 studies show it is inconclusive

▪ The former DPP (Nicholas Cowdery) objected strongly to the concept of deterrence in Aus and NSW

⇒ Believed it is only through strong education and social programs to deter people from crime

⇒ Suggest that programs such as circle sentencing, MERIT and drug courts are more effective in deterrence

o Rehab

▪ An objective of sentencing designed to reform the offender so that they do not commit offences in the future

▪ Aim to reduce or eliminate future offender

▪ Most important 🡪 aims to discourage but does it by ALTERING the views

▪ Reduce recidivism

▪ Effecticness: Less than 1% of corrections budget is spent on rehab, Is rarely the prime consideration for very serious offences 🡪 other factors outweigh the consideration of reform, Good for less serious offences involving drug or alcohol abuse

3: Role of Victim

o A voluntary statement written by the victim about the impact that the crime has had on them

⇒ Defined in s26 of the Crimes (Sentencing and Procedure) Act 1999 (NSW)o It allows the victim an opportunity to participate in the process by letting the court know how the crime has

affected themo ONLY presented in the district and supreme court 🡪 presented after the offender is found guilty o The statements are only permitted for serious offences involving violence (actual or threatened), the death

of a person, or the physical harm to a person

For Against

● Provide an opportunity for victims to express themselves

in the criminal process

● Provide useful information to court about the impact of

the crime

● Useful when offender has pleaded guilty and the judge has

no opportunity to hear evidence

● Give the victim a roe in the court

● May assist in the rehab of the offender 🡪 to hear the

impact of their actions

● If the offender is able to submit personal circumstances in

mitigation of their sentence, then the victim’s personal circumstances should also be able to be considered

● It can allow victims and family members to publicly

express their grief and anger

● They can be a confronting experience for the offender

● Can be very subjective, yet have a

significant effect on sentencing

● Statements by family members in cases

of death are particularly controversial, with some commentators suggesting that they can influence the punishment according to degree their family loved them

● Family statement impacts might

remove impartiality from the judge’s process

● Delivery of statement and possible

ensuring cross examination can prove embarrassing and upsetting

4: mitigating, aggravating circumstances 🡪 use of discretion











2. Assess the role of discretion in sentencing and punishment

Intro: very important

1: Discretion of Judge - the acts etco Statutory and guideline judgements everything is layed out for the in an act but it up to them to






2: Incorporation of Aggravating and Mitigating o Decide based on aggravating and mitigating circumstances










3: When giving out appealso An appeal is a request to a higher (appellate) court for that court to review and change the decision of a

lower courto Crimes (Appeal and Review) Act 2006o A person convicted of an offence and sentenced has the right to appeal their case that is, apply to a higher

court for a review of the decision/s made in the lower court. o The person appealing is known as the appellant or the applicant.

o R v Skaf (2004)

● Bilal Skaf was a part of a gang that raped several young women in Sydney

● Bilal as the ringleader was sentences to 55 years

● The judge ordered a retrial because two of the jury members visited the scene of the crime to look at the lighting in the park at night

● His sentence was reduced to 28 years o R v Loveridge (2014)

● DPP appealed following community outcry at perceived leniency of sentence

● Successful and NSW court of Criminal Appeal increase non-parole period from 4 years to 7 years

4: Post sentencing considerations - preventative detentions o The most severe type of preventive detention is legislation that is targeted at individual offenders.

⇒ This type of law was held to be unconstitutional in the High Court case of Kable v DPP (1996) 189 CLR 51.

⇒ However, most Australian jurisdictions have legislations enabling general powers of preventive detention in restricted circumstances.

▪ E.g NSW: the controversial Part 2A of the Terrorism (Police Powers) Act 2002 (NSW) allows police detain a person in custody for a maximum period of 14 days if suspecting terrorism

▪ Victoria used the controversial anti-terror powers in April 2015 to detain five terror suspects.

3. To what extent is law reform effective in providing just outcomes in the criminal justice system – sentencing and punishment


1: Reforms to Paroleo Judges used to hand down massive prison sentences that seemed tough (e.g. 25 years), but then the

offender would only serve 4 or 5 yearso This caused public and media outrage.o The NSW parliament passed the Sentencing Act 1989 (NSW) which required people sentenced with

imprisonment to serve a minimum percentage of 75% of their sentence without getting parole (truth in sentencing law – justice for victim + community

o The Crimes (Sentencing Procedure) Act 1999 (NSW),

▪ Amended in 2003 🡪 give us a very different, complicated system

▪ Instructions to GUIDE THE JUDGES DISCRETION in deciding and sentence to ensure consistency

▪ It provides

⇒ Maximum sentences for all crimes (statutory)

⇒ Standard non-parole period for some crimes (statutory) - Recommended minimum sentence

⇒ Guideline judgements for some crimes (judicial)

⇒ Mandatory sentences for some crimes (statutory) E.g. compulsory sentence

2: Mandatory Sentencing

o One Punch Law










3: Victim rights act – after Loveridge caseo Reform triggered by R v Loveridge (2014) – community pressureo The Crimes (Sentencing Procedure) Amendment (Family Victim Impact Statement) Act 2014

● Amends the Crimes (Sentencing Procedure) Act 1999

● If offender guilty of murder 🡪 judges CAN take a family VIS into account when sentencing

● Purpose to establish a clear and consistent structure for consideration of VIS o Reform criticised – what if a homicide victim does not have a family member?o Demonstrated the effectiveness of non-legal mechanisms (media, lobby groups) to achieve justiceo Nick Cowdery 🡪 “Forgotten Victims: Criminal Justice Remembers” speech

● “failure to enforce the rights of victims does not have consequences for the criminal process itself, unlike failure to enforce the rights of the accused. Is nevertheless a failure of the system”

4: Introduction of Circle Sentencingo Introduced in NSW, Nowra, Feb 2002 🡪 through initiative of the ATSI o form of sentencing used for some adult ATSI offenders where sentencing is conducted in a circle made up of

local community members and a magistrate 🡪 made because of the high incarceration rates o Break down mistrust between offenders and court to increase ATSI confidence within judicial process o Aims to achieve full community involvement, offender to appreciate harm down, focus on rehab, tackle high

prison rate o STATISTICS: THE NSW Bureau of Crime Statistics and Research

▪ Reported that ATSI offenders were no less likely to reoffend in 15 months after circle sentencing than those sentenced in traditional court settings

5; YOUNG OFFENDERS

1. Assess the effectiveness of the criminal justice system when dealing with young offenders + explain why young offenders are treated differently in the criminal justice system

The participation of young individuals within the criminal justice threatens to create an adult with criminal tendencies, thus increasing recidivism and danger in society. As such, young offenders must be dealt with differently to adults, and legislation must take into account the naivety and immaturity of children in trial and sentencing process. This notion is manifested in every aspect of the criminal justice system, incorporated into the Children's Court, the principal of the age of criminal responsibility and restorative justice programs. However, difficulties in diverting young offenders from the courts ultimately undermine the criminal justice system when dealing with young offenders due to a lack of perceived effectiveness by the community.

Children are inherently immature and lack understanding of society's basic morals and ethics. This concept dictates that young children are "incapable of wrong" - Doli Incapax; children under 10 cannot be held criminally responsible, and is only rebuttable between 10 and 14. This enactment of Convention of the Rights of the Child (CROC) Article 3, the best interests of the child is upheld because the legislation understands the lack in children's basic understandings of right and wrong. Henceforth, the system protects children and allows them to develop an understanding of criminality before subjecting them to the punishment of the justice system. Justice was achieved in R v SLD 2002 NSWSC, which involved the sentencing of 13 year old SLD to 20 years prison because of the premeditated nature of the murder of a young child determined that SLD had matured enough to be convicted of murder and thus Doli Incapax did not apply. However, the precise age an individual can be held criminally accountable for their actions is much debateable. The case of R v LMW 1999 NSWSC, LMW was ruled not guilty in the NSW Supreme Court due to the rebuttable evidence provided that 11 year old LMW could not distinguish between "childish mischief" and criminal murder, rather sought to protect children from "draconian consequences of conviction" (Legal Aid NSW 1999). Meanwhile, The United Nations Committee on the Rights of the Child has criticised Australia for maintaining a standard below 12, which was considered "not to be internationally acceptable". Comparatively, rural parliamentary members have raised issues of juvenile irresponsibility where they are protected by Doli Incapax and thus vouch for the lowering of the standard (SMH 2012). The criminal justice system seeks to protect children from becoming institutionalised as criminals by reducing the criminogenic Court interactions at young ages, relying on the dogma that maturity will prevent recidivism, yet faces difficulties in determining when an individual must become criminally responsible.

The Young Offenders Act 1997 NSW sets of the intention of legislation to reduce young offenders contact with the criminal justice system, as these interactions are inherently criminogenic. The system of restorative justice involves the reconciliation of the victim and offender in order to achieve a just outcome for both parties. Established under the Young Offenders Act 1997 (NSW), Youth Justice Conferencing (YJC) is a restorative justice program for juveniles, and along with the police discretion utilisation of warnings and cautions, for a three-tier system of alternative justice. YJC is an enactment of Article 3 of the United Nations Convention on the Rights of a Child 1989, as it was established in R v GDP 1991 that sentencing of young offenders should "seize the opportunity to direct the child into rehabilitative efforts". Former Attorney -General Bob Smith praised YJC as playing "an important role in making offenders confront their victims and the impact of the crimes". However, the effectiveness of YJC in rehabilitating young offenders is much disputed, as a NSW BOCSAR report established in 2012 that YJC "is no more effective than the NSW Children's Court in reducing juvenile re-offending" (SMH 2012) yet is significantly less expensive. Likewise, the lack of progress made by the Youth Drug and Alcohol Court NSW resulted in its termination in 2012 due to resource inefficiency concerns of the NSW Government, despite “half of all juveniles (that are) detained by police test positive for drug use”, according to the Australian Institute of Criminology. (SMH 2012) Thus, rehabilitation of the young offenders is prioritised, yet government policy struggles to find an effective mechanism for the reduction of juvenile recidivism.

The Children's Court is critical in maintain the distinction adult and young offenders, as the specialised court ensures that all possibilities for rehabilitation prioritised. During the criminal investigation process, law enforcement agencies must adhere to strict conditions to ensure that evidence is not misconstrued or that the naivety of a young offender does not obstruct the pursuit of justice, limits that are outlined in the Law Enforcement (Powers and Responsibilities) Act 2002 NSW (LEPRA). Thus during the trial, there are strict rules applied to the validity of evidence such as a responsible adult must be present during police questioning of a minor. During the case of R v CKT 1999 (NSW), the police failed to provide an adult guardian, and thus the evidence gained during an interview with CKT was deemed inadmissible to the court. These limits effectively ensure the rights of children are not breached during the trial process and create a distinction between the treatment of adult and young offenders. Likewise, a Children's Court proceedings are closed sessions, and the name of the offender is replaced with a three letter pseudonym in publications, R v SLD 2002 NSW, and relies on the "specialised knowledge of magistrates and judicial officers" in determining an "impartial decision" that will best help the juvenile criminal (UNSW 2014). However, 65% of young offenders during 2012 were reconvicted of another offence with 24 months of appearing in the Children's Court, with an estimated $2200 cost of the trial and $2800 cost on implementing punishment (NSW BOCSAR 2012 - SMH). Moreover, Aboriginal and Torres Strait Islanders (ATSI) are disadvantaged within the criminal justice system, and oft feel "stigmatized" by the Children's Court and thus are less likely to engage with

rehabilitative processes (UNSW 2014). This is compounded by community dismay at the inability of the court exemplified through media campaigns that emphasised that "Children reoffend as system goes soft" (SMH 2012). Thus, whilst the Children's Court is a specialised trial process design to protect young offenders in manners not available to adults, it oft struggles to effectively incorporate children and families into the court proceedings.

Catering for young offenders involves providing opportunities to avoid contact with the criminal justice system as a method of reducing the rate of recidivism in the community. Thus, law reform has occurred over time to best accommodate young offenders within society. Yet, legislation struggles to engage youth, particularly from disadvantaged groups, and to actively reduce recidivism in a cost effective method.

6: INTERNATIONAL CRIME

1. Evaluate the effectiveness of the domestic and international legal systems in dealing with international crime.

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