1. The nature of crime Information Legislation Cases Media · -Offences against the sovereign are...

1. The nature of crime Information Legislation Cases Media

• meaning of crime - A crime includes any act or omission which results in causing harm to individuals in society and is punishable by law

Crimes Act 1900 N/A N/A

• the elements of crime: actus reus, mens rea

The actus reus is the guilty act. This can include - an act or failure to act (e.g speeding) - a circumstance (e.g in the presence of a child) - a status (e.g drunken state in public) - a consequence i.e the act led to something (otherwise

known as causation). The mens rea is the guilty mind. This can include: - intention (e.g to kill) - recklessness (knew of the consequence but persisted) - knowledge (e.g knowledge of a person not consenting to

sex)

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• strict liability offences - A strict liability offence is a crime in which mens rea does not have to be proven.

- The court only has to prove actus reus. - The majority of these offences are summary offences e.g

speeding. - If the mens rea was needed to proved for summary

offences, the resource efficiency of the court would be detrimental.

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• causation - Causation refers to the enquiry as to whether the defendant's conduct (or omission) caused the harm or damage.

- Was the crime a direct consequence of the defendants actions?

- Prosecution needs to prove beyond a reasonable doubt that the actions of the accused were a ‘substantial and significant cause’ of the harm/consequence.

N/A R v Tostee (2016)

R v Royall (1991)

“Gable Tostee trial: Jury reaches verdict over Tinder hook-up murder charge” - ABC News 2016

1. The nature of crime

• categories of crime including: • offences against the person,

offences against the sovereign, economic offences (property/white collar/computer), drug offences, driving offences, public order offences, preliminary crimes (attempts and conspiracy)

Offence against the person: - e.g.murder, manslaughter, infanticide, dangerous driving,

assault, sexual assault. - any case where harm (emotional or physical) is directly

brought to an individual Offence against the sovereign: - Offences against the sovereign are some of the oldest

crimes, and include political offences against the state or heads of state, such as treason and sedition, which attract severe penalties.

Economic offences: - three types:

- Property e.g. larceny, break and enter - White collar e.g. embezzlement, tax evasion, insider

trading - Computer e.g. various crimes related to hacking and

unauthorised access or modification of data such as fraud

Drug offences: - Drug offences relate to acts involving prohibited or

restricted drugs. - e.g. possession of an illicit substance Driving offences: - any form of offence committed by a person in a vehicle e.g

speeding Public order offences: - The acts that are deemed to disturb the public order in

some way, such as disturbance in or in sight of a public area.

- e.g obscene, indecent, or threatening language or behaviour in public

Preliminary crimes: - attempts or conspiracy - An attempt to commit a crime is considered an offence and

will usually be punishable by the same penalty as if the crime had taken place

- Conspiracy occurs when two or more people jointly conspire to commit a crime

Crimes Act 1900

Drug Misuse and Trafficking Act 1985 (NSW)

Driving offences are included in both the Road Transport (Safety and Traffic Management) Act 1999 (NSW) and the Crimes Act 1900 (NSW).

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Information Legislation Cases Media1. The nature of crime

• summary and indictable offences

A summary offence is a minor offence, mostly heard in the local or district court. Offences range from speeding to minor assaults.

An indictable offence is a major offence, mostly heard in the supreme court and above. Offences such as murder or sexual assault are indictable offences.

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• parties to a crime including principal in the first degree, principal in the second degree, accessory before the fact, accessory after the fact

Principal in the first degree: The individual who actually carries out the criminal act. Referred to as the ‘perpetrator’

Principal in the second degree: This individual assists and is present during the commission of the crime. e.g In the armed robbery of a service station, the principal in the second degree could be someone who was standing guard at the door.

Accessory before the fact: Helps others commit a crime by helping them plan or prepare the criminal act. They are not present at the commission, however may be imposed with the same penalty as principal in the 1st degree.

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cont. Accessory after the fact: Helps the criminal/s after the commission of a crime, but is neither present during the crime, nor aware of it beforehand. They have the intent to help the person avoid arrest or punishment. An accessory after the fact may be held liable for obstruction of justice.

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• factors affecting criminal behaviour

Economic factors: - People who suffer economic disadvantage can feel

‘disconnected’ from mainstream society and hence may disrespect the law.

Social factors: - Upbringing and personal networks shape a person’s view

of the law. People born into low socio-economic areas ridden with crime may make some partial to committing criminal activity.

Self interest and greed: - In most crimes involving violence, the perpetrator is

interested in exerting power or fear - Drug addiction Political factors: - People who commit politically motivated crimes may not

feel compelled to comply with the law. Politically motivated crimes cover public order offences to terrorism.

Genetic factors: - Some scientists have claimed that men with an extra male, or Y, chromosome (XYY) may be more likely to commit criminal acts than the general population

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• crime prevention: situational and social

Social crime prevention: - Aims to give people access to services and education to

reduce the factors that are likely incentives for committing crimes. e.g a program that specifically target substance abuse (Narcotics Anonymous)

Situational crime prevention: - A reactive measure taken to discourage, make it more difficult for, or making less rewarding for crimes to be committed. Politicians favour situational crime prevention due to the short term nature of the strategy, such as employing more police officers, installing security cameras or security guards.

Bourke case study: - Maranguka began in 2013, when members

of the Bourke Aboriginal community approached Just Reinvest NSW.

- According to the Bureau of Crime Statistics and Research board, crime in the New South Wales’ northwest town of Bourke is at an all-time low, with taxpayers saving over $3 million last year on police, courts, prisons and other related costs, as a result of lower crime rates (The Australian, 2018)

- Fair and equitable law and order is a right not afforded to many of Bourke’s Indigenous citizens

- As evidenced in Bourke, situational crime prevention has proved vastly ineffective in combatting crime

- Bourke is one of the most disadvantaged communities in Australia, with high long-term unemployment and family violence, and the highest rate of juvenile convictions in NSW

- Deep seeded socioeconomic problems dominating the factors affecting criminal behaviour in the area

- Social crime prevention programs such as “Maranguka” have drastically diminished the rates of crime in Bourke.

- Domestic violence-related assaults dropped 39 per cent from 2015 to 2017

- 38 per cent reduction in the number of driving offences recorded against youth and

- 38 per cent drop in non-domestic-violence-related assaults.

- Maranguka targets the rate of recidivism in Aboriginal offenders in Bourke, by working alongside Family and Community Services staff, domestic violence workers, legal aid representatives and other service providers to co-ordinate services for offenders and their families.

“Breakthrough at Bourke” - ABC Inside Story 2018 - Last year Bourke

saved over $3 million, mainly in costs to its criminal justice system, from rolling out Australia’s most advanced example of an approach known as “justice reinvestment.”

“Unique community policing sees crime rates plunge in Bourke” - The Guardian 2018 - Maranguka project

credited with cutting major offences by 18% and domestic violence and drug offences by 40%

- There was a 72% reduction in the number of people under 25 arrested for driving without a licence.


2. The criminal investigation process

Information Legislation Cases Media Stats

• police powers - Detain and question suspects - search property and seize evidence - use reasonable force - use particular technologies to assist in

investigation - arrest and interrogate suspects - recommend whether or not bail should be

granted

- Police powers are enforced by the Law Enforcement Power and Responsibilities Act 2002 (LEPRA)

N/A “Alleged police brutality of man in custody on Australia Day under independent review” - ABC News 2019 - The independent Law

Enforcement Conduct Commission is reviewing allegations of police brutality against an Aboriginal man in a New South Wales police station

“#EnoughIsEnough: Stop Police Brutality in Australia” - Sydney Criminal Lawyers 2018 - Videos of Australian

police officers committing horrendous acts of brutality are being uploaded to social media at an alarming rate, renewing calls for offending officers to be made accountable for their crimes.

- Complaints are referred to independent bodies – such as IBAC or the Law Enforcement Conduct Commission in NSW – these organisations lack the resources to properly investigate complaints

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2. The criminal investigation process

• reporting crime Citizens are often reluctant to report crimes; reasons as follows: – Reluctant to become involved or to appear as a witness. – Fear of the consequences if the crime is reported. – Inability to report the crime. – The dispute has already been settled. – Perceived time or administrative burden of reporting a crime.

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• investigating crime: gathering evidence, use of technology, search and seizure, use of warrants

Gathering evidence: - Taking witness statements at the scene of the

crime and crime scene detectives examining evidence left at the scene.

- Role of the police is to gather evidence to further the investigation and support a charge in court.

- Evidence is documented using video and photos to maintain integrity. Evidence that has been contaminated or compromised is inadmissible evidence.

- Types of evidence include oral testimony of the accused, police and witnesses, physical evidence e.g. weapons, objects, DNA, fingerprints.

Use of Technology: - DNA evidence is an important advance in

technology that has been particularly helpful in gaining some difficult convictions

- All evidence must be obtained in a proper and lawful manner outlined in the Evidence Act 1995 (NSW).

Jill Meagher case (R v Bayley 2013) - Adrian Bayley has been

sentenced to life in prison, with a 35-year non-parole period, for the rape and murder of Jill Meagher.

- At the time of Meagher’s murder Bayley was on parole for raping five women

- Bayley was previously found guilty of 20 rapes over a 23-year period, 11 years of which he spent in jail.

- Bayley was captured on CCTV running behind Meagher on Sydney Road, who shortly thereafter dragged his victim into a nearby laneway before raping and strangling her

- He drove Meagher’s body 45km from the scene of the crime, where he buried her in a shallow grave.

- Bayley was arrested five days after the murder

“Adrian Bayley jailed for life for murder of Jill Meagher” - The Guardian 2013

“ill Meagher: Conviction documentary reveals how killer Adrian Bayley was caught” - ABC News 2017 - It took six days to catch

Jill Meagher's killer, about six hours for him to confess, and six minutes for a judge to remand him in custody.

- Phone tracking key to clearing husband and finding killer

- CCTV footage from outside a boutique along Sydney Road showed a brief interaction between Jill and her killer, and would lead police to Bayley.

- Bayley's car showed up on a toll transaction on Moreland Road at the same time Jill's phone was travelling through that area.

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Information Legislation Cases Media Stats2. The criminal investigation process

cont. Use of Warrants: - Warrant: a legal document issued by a

magistrate or judge which authorises a police officer to perform a particular act

- Certain searches or seizures cannot be performed without a valid warrant.

- When applying for a search warrant, the police must give substantial reasons or evidence to the magistrate or judge to justify the granting of the warrant.

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• arrest and charge, summons, warrants

Arrest and Charge - Conditions to which the police may lawfully

arrest someone (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)) include: – Catching a suspect committing an offence. – Believing on reasonable grounds that the suspect has committed, or is about to commit an offence. – Person has committed a serious indictable offence for which they have not been tried.

- Arrest warrants allow for the police to arrest someone for the crime they are investigating.

- Once a suspect is arrested, they may only be held for a specified period of time before being either charged with committing an offence or released.

- If charged, the police must either release the accused or bring them before a magistrate or authorised officer as soon as practicable after the end of the maximum detention period.

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cont. Summons - a Court Attendance Notice is a legal

document that states when and where a person must appear in court, and the charge to which they must answer

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• bail or remand Bail - Bail is the temporary release of an accused

person awaiting trial - Bail ensures that the prison system is not

clogged with offenders awaiting a trial. Remand - Remand is the name given to the process of

when the accused remains in detention throughout the trial, and until they are sentenced

- If the accused is found guilty, the time served on remand may be taken into account.

- Remand is usually sought for people who have committed particularly violent crimes

- Under the Bail Act 2013, a bail authority must decide whether the accused person should be held in jail (called on remand) before their hearing or whether they should be released, with or without conditions, into the community

N/A “Remand population lifts NSW prison numbers” - SBS 2016 - A rise in the number of

NSW prisoners awaiting trial or sentencing has pushed up the state's overall jail population by more than 6 per cent.

- About a third of those prisoners were on remand awaiting trial or sentence, up by nearly 15 per cent on a year ago.

Current BOCSAR statistics say that there are 5,000 people on remand in NSW

• detention and interrogation, rights of suspects

Rights when approached by the police: - You do not usually have to give your name

and address. However there are some situations where you must: - when driving a car - when under 18 and suspected of carrying

or consuming alcohol - when the police suspect you witnessed a

serious crime Before giving ‘reasonable discretion’ a police officer must: - show evidence they are police - tell you their name and station - tell you why they’re giving giving the

direction - warn you it is an offence to disobey You do not have to go with police unless you’ve been arrested

Police can arrest without a warrant: - to stop a person committing an offence - to preserve evidence of the offence or

prevent the fabrication of evidence - to protect the safety of the public - if the nature of the crime is serious

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cont. Types of searches: - Normal search

- empty pockets, bags, show possessions, frisk search

- Strip search - remove clothing - police must not touch your body during a

strip search - Internal body cavity search

- internal search, ordered by a senior police officer must be conducted by a doctor

Police may only use reasonable force

Persons under 18 must not be placed in a cell. They must also be accompanied by an adult.

Police may only hold an individual in a cell for 6 hrs without charge. This period however may be extended for an additional 6 hrs with an ‘authorised justice’ warrant.

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3. The criminal trial process Information Legislation Cases Media

• court jurisdiction Court Jurisdiction: - The court is structured in 3 levels:

1. lower 2. intermediate 3. high

- This system allows for appeals. - The powers and role of the court form the

jurisdiction - some courts only hear specific jurisdictions

(e.g coroners court)

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• the adversary system The adversarial system of trial is the one used in NSW and Australia. - both parties present an argument and evidence in

support of their case - court doesn’t conduct an investigation (exc. Cor.

Court) - features impartial observers (judge, magistrate,

jury) who determine guilt or punishment.

Some court personnel: - Magistrate - Judge - Police prosecutor or DPP - Public defender

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3. The criminal trial process

• investigating crime: gathering evidence, use of technology, search and seizure, use of warrants

Evidence is the means by which a fact is proved. The types of evidence are: - eyewitness evidence - circumstantial evidence - hearsay evidence - expert evidence

Rules of evidence dictate which evidence is admissible for trial. Admissible evidence must be relevant, meaning that it must prove a fact in an issue, or the witness is credible. - evidence marked as inadmissible cannot be used in

court - evidence may be excluded if it has been illegally or

unfairly obtained or if acquired in unfair circumstances.

Witnesses are crucial to both the prosecution and defence. A witness for the defence may be able to provide an alibi, whereas a witness for the prosecution may have witnessed the crime.

Evidence Act 1995 Cheryl Grimmer case - key evidence ruled as inadmissible meant the prosecution dropped the case

“Cheryl Grimmer murder case dropped after NSW Supreme Court rules key evidence inadmissible” - ABC News 2019 - A murder charge against a man

accused of killing toddler Cheryl Grimmer, who went missing almost 50 years ago, has been dropped.

- The judge ruled the key piece of evidence, the accused's police interview from April 1971, inadmissible because there was no parent, adult or lawyer accompanying the then 17-year-old.

- The accused was vulnerable when he was interviewed by police.

- He had a "low average intelligence, was immature, and more vulnerable than the average 17-year-old as a result of his disturbed upbringing, difficult relationship with his parents, history of running away from home, moving countries, low intellect and limited education".

Information Legislation Cases Media3. The criminal trial process

cont. Relevance: - Evidence must be relevant to the issues before the

court. e.g if you are charged with offensive language it is not relevant you had a speeding ticket to prove guilt.

- evidence that may cause an unnecessary prejudice or bias against the offender.

Hearsay: - evidence is generally inadmissible if someone

relies on a piece of information told to them by someone else

- The major exception which excludes hearsay is confessional evidence

Confessions: - a person can say they heard someone admit to the

crime, this is admissible despite being hearsay. - Evidence of a confession may be ruled

inadmissible if the judge finds reason to believe there has been an inducement for a confession.

Evidence Act 1995 Danger of relying on police accusations of ‘confessions’ by a suspect - McKinney v R 1991

Danger of relying on similar evidence from prisoner informants - Pollitt v R 1992

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cont. Character: - to ‘raise character’ means to make a suggestion the

accused is a ‘good person’. - the accused has legal protection against questions

from the prosecution that tend to show that they are a person of bad character or has committed other offences, unless the accused person raises their own character

Opinion: - an ordinary person can apply as an ‘expert witness;

to give evidence on a particular area e.g the weather in the particular area on the day a crime was committed

Evidence Act 1995 N/A N/A


• pleas, charge negotiation - an accused is required to submit a plea to the charges against them e.g guilty/not guilty

- a plea determines how the trial proceeds: - guilty plea // no trial just sentencing, quicker as

there’s no question about the accused’s guilt - not-guilty plea // accused’s guilt must be

proven via trial Charge negotiation: - Charge negotiation is a process where the accused

agrees to plead guilty to a particular charge or charges.

- Involves pleading guilty to a lesser change in exchange for other higher charges being withdrawn or pleading guilty in exchange for a lesser sentence.

- If an offender pleads guilty, this is considered a mitigating factor and is often rewarded with a reduced sentence - 25% discount if the guilty plea is submitted

before committal - 12.5% if after

- Guilty plea reform: Criminal Case Conferencing Trial Act 2008

R v Abrahams 2013 - manslaughter guilty plea that

was submitted by the accused was rejected by the DPP

- Abrahams was convicted of murder

• legal representation, including legal aid

A defendant has the right to a fair trial, and Australian courts have ruled that a trial will rarely be fair for an accused who does not have adequate legal representation. - Access to justice is crucial to ensure that the legal

system functions fairly and equally for everyone who comes before it.

- The Legal Aid Commission provides legal assistance and representation to people who are socially and economically disadvantaged to ensure that they have equitable access to the law.

Legal Aid Commission founded under the Legal Aid Commission Act 1979 (NSW)

R v Dietrich 1992 - The High Court found that

representation of the accused is essential to a fair trial

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• burden and standard of proof Burden of proof: - A person is innocent until proven guilty in a court

of law. - It is the responsibility of the prosecution to prove

in court that the accused committed the offence they have been charged with, known as the burden of proof

Standard of proof: - The prosecution must also meet the standard of

proof; they must prove the case beyond reasonable doubt.

- The prosecution must show that there is no reasonable doubt that the accused in fact committed the offence.

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• use of evidence, including witnesses

- Evidence used in court can take the form of real evidence, documentary evidence and witness testimony, as well as tape recordings, charts to help explain evidence, photographs, fingerprints, DNA test results, and exhibits such as weapons and clothing.

- Witnesses can be called to give evidence in court by either the prosecution or the defence, and may be examined by either in court.

- A witness giving evidence will be asked to take an oath to tell the truth and will be asked a series of questions, usually by both the prosecution and the defence.

- Witnesses must answer questions truthfully; if not, they may be guilty of perjury, which is telling an untruth to a court.

The use of evidence in a court case is bound by the Evidence Act 1995 (NSW).

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• defences to criminal charges: • complete defences

- A complete defence is a justification that excused the defendants action and results in acquittal

Complete defences: Mental illness - the defence of insanity differs from other defences

in that it is the responsibility of the defence to prove that the defendant was ‘insane’ at the time the crime was committed (the onus of the burden of proof shifts onto the defence)

- it means the defendant did not have the mens rea to commit the crime

- the court may sentence the defendant to a mental health facility is the defence of mental illness is successful

N/A R v M’Naghten 1843 - M’Naghten was charged with

the murder of a political offical. He however pled not-guilty on the basis on ‘insanity’, the jury found this to be the case.

- The M’Naghten case provides the legal definition of insanity.

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cont. Necessity - if a person commits a crime to escape an imminent

threat, that person is not criminally responsible for the crime

N/A Precedent, necessity is NOT a viable defence and is thus not used: Dudley and Stephens v R 1884 Necessity is not a defence to a charge of murder. It concerned survival cannibalism following a shipwreck and its purported justification on the basis of a custom of the sea.

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cont. Consent - A victim cannot consent to murder or to the

infliction of grievous bodily harm, but may be able to consent to a charge of assault. Consent is most commonly raised as a defence in sexual assault cases.

N/A R v Lazarus 2016 - At a nightclub in Sydney,

Lazarus sexually assaulted the complainant in an alleyway under the impression she was consenting. The jury found him guilty.

I am that girl’ Four Corners 2018

cont. Duress - Under the defence of duress, the accused claims

that a person forced them to commit a crime against their will

- This defence has never been used in Australia for murder (there is no precedent)

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cont. Automatism - the accused claims not to be in control of their

actions at the time a criminal act was committed - e.g sleepwalking, having a neurological disorder

such as Tourettes Syndrome.

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cont. Intoxication - the accused must prove the intoxication affected

their ability to form the intention to commit the offence

- Intoxication as a defence eliminates judicial discretion which if an offender committed a crime unwillingly intoxicated (their drink was spiked), there is no ‘wriggle room’ for judicial discretion to consider mitigating factors. An unwillingly intoxicated offender must and will receive a mandatory sentence.

The NSW government decided to introduce the new offence of ‘assault causing death’ in sect. 25A of the Crimes Act 1900 - sect. 25B requires a court to

sentence a person to a minimum of 8 years imprisonment if the offender was intoxicated at the time of the offence

R v Loveridge 2013 - Thomas Kelly was king-hit

and killed by Kieran Loveridge in a senseless act of alcohol-fuelled violence

- Reforms as a result of the murder of Thomas Kelly

“NSW to introduce 'one-punch' laws in wake of Thomas Kelly's death” - ABC News 2013


• partial defences to murder - A partial defence is an excuse for the defendant’s action that might result in the reduction of the charge/ or the punishment.

Partial Defences Provocation: - provocation can be argued when a person accused

of murder claims to have been provoked by the deceased in such a way they lost self control and were therefore less culpable for their actions

- for the defence of provocation to be accepted, it has to be shown that the deceased acted in such a severe way that an ordinary person would lose control and develop the urge to kill the person provoking them

- provocation ca be use as a mitigating factor in the sentencing stage of criminal proceedings

- Provocation can only be used if the “conduct of the deceased [was] a serious indictable offence (5 years or more)

Crimes Amendment (Provocation) Bill 2014 - partial defence of extreme

provocation

Crimes Act 1900 s.23(2)

R v Singh 2009 - Singh was charged with the

brutal murder of his wife, pleading guilty to manslaughter on the basis of provocation.

- Singh was of the belief that his wife was having an affair and thus killed her, provoked by her unfaithfulness

- The jury acquitted the offender of murder but convicted him of manslaughter.

R v Lindsay 2015 - ‘gay panic’ was utilised as a

justification of the provocation defence

R v Turnbull - a farmer who killed an officer

of the NSW Office of the Environment was investigating a farmer for breaches of the Native Vegetation 2003 act. The farmer argued the conduct of the deceased was an offence under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (stalking).

- The jury found him guilty with the defence of provocation null and void.

"Murder or manslaughter? NSW ponders the provocation problem” - The Conversation 2012 - A defence predominately used

by men, provocation is seen by many to represent an outdated and illogical excuse for murder. However, for others, it represents a halfway defence for battered women who are unable to raise the often restrictive complete defence of self-defence


cont. Substantial Impairment: - provides a partial defence to murder of substantial

impairment by abnormality of mind. - The onus and burden of proof is upon the accused

in both provisions, and in both cases the Crown is entitled to raise mental illness if the accused raises diminished responsibility, to be proved on the balance of probabilities

- The abnormality must be a result of an underlying condition

Crimes Act 1900 s. 23A R v Barbieri 2017 - Fiona Barbieri’s ‘chronic

schizophrenia’ was imparted onto her son. The delusions led to her son murdering a police officer. Fiona was seen to be a primary cause of this murder and thus charged with murder as well

- Her charge was reduced to manslaughter on the basis that Fiona bore significant responsibility for her son’s act

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• the role of juries, including verdicts

- In criminal trials, a jury hears evidence, applies the law as directed by the judge, and decides if a person is guilty or not guilty of a crime, based on the facts.

- A jury does not participate in the sentencing process

Jury Act 1977 N/A N/A


4. Sentencing and punishment Information Legislation Cases Media Stats

• statutory and judicial guidelines

- Sentencing is when a judge decides on a punishment - Parliament legislation (statutory) - Precedent (judicial)

Sentencing Act 1989 - required that offenders

must serve a minimum of 75% of their sentence

Crimes (Sentencing and Procedures) Act 1999 - maximum sentences for all

crimes (statutory) - standard non-parole

periods for SOME crimes (judicial)

- mandatory life sentencing for murdering (statutory)

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• the purposes of punishment: deterrence (specific and general), retribution, rehabilitation, incapacitation

- Different punishment objectives inform the sentencing process

- When sentencing, the judge/magistrate first determines the purpose of punishment, then the type of punishment - Deterrence (specific and general) - Retribution - Rehabilitation - Incapacitation

Deterrence: Aim = discourage recidivism - Specific (to the accused)

- must chose least harsh option e.g custodial sentence

- General (to the public) - raises awareness of penalties for committing

offences via the media - enhances compliance of the public with the

criminal justice system

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cont. Retribution: - unfair for offender to gain from their criminal

conduct - prevents victims taking law into their own hands but

can also lead to victims feeling marginalised by the process

- e.g lengthy custodial sentence

N/A Cronulla Riots, a teenager who burnt the Australian flag, part of his punishment was to spend time with RSL members

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4. Sentencing and punishment

cont. Rehabilitation: Aim = reduce or eliminate recidivism - e.g drug addiction program for drug related offences

might assist in reduce the sentence imposed - community service orders - if an offender fails to fulfil rehab program, the court

can apply other (harsher) punishments - primary focus for young offenders

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cont. Incapacitation: - prevents them from reoffending - protects the community - required if a crime is very serious or repeated

offending demonstrates a failure of the offender to be rehabilitated

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• factors affecting a sentencing decision: aggravating and mitigating circumstances

Aggravating circumstances: - increase the offender’s criminal culpability - likely to result in a more severe punishment Includes: 1. the victim was carrying out their duties e.g police,

prison officer, teacher 2. offence involved actual or threatened violence e.g

use of weapon 3. the offender has a record of previous convictions 4. the offence involved gratuitous violence 5. substantial emotional harm, loss or damage

resulting from the offence 6. the offender abused a position of trust or authority

in relation to the victim e.g priest 7. the victim was vulnerable e.g the victim was a

child, disabled or elderly

The Crimes (Sentencing Procedure) Act 1999

R v Loveridge 2013 - pled guilty to charge

of manslaughter - young age (didn’t

fully understand consequences)

- showed remorse - good prospects for

rehabilitation

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Information Legislation Cases Media Stats4. Sentencing and punishment

cont. Mitigating Circumstances: - reduce offender’s criminal culpability - likely to result in the offender receiving a less severe

punishment Includes: 1. the injury, emotional hard, loss of damage cause by

the offence was not substantial 2. the offence was not part of planned or organised

criminal activity 3. the offender provoked the victim 4. the offender acted under duress 5. the offender has no significant record of a previous

offence 6. the offender was of good character 7. the offender unlikely to reoffend 8. the offender shows good prospects for rehab 9. the offender wasn’t fully aware of the consequences 10. the offender pleaded guilty 11. the offender gave assistance to law enforcement

authorities

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• the role of the victim in sentencing

The right exists for a victim to make a Victim Impact Statement to be considered in court, allowing the court to have an understanding of the impact that the crime has had on them. - the only opportunity for the victim to have their say - can be given by or on behalf of a victim - the statement is made AFTER conviction of guilty

plea and BEFORE sentencing

N/A R v Pell 2018 - Victim impact

statements helped inform the judge’s decision to sentence Pell

- Pell sentenced to 6 years in prison for the sexual assault of two 13 year old boys during the 90s.

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• appeals A system of appeals exists to allow decisions to be reviewed and corrected if necessary. There are multiple types of grounds for criminal appeal.

Appeals against conviction: - a person convicted of an offence can appeal their

conviction if they believe they have been wrongfully convicted or denied a fair trial

- appeal court reviews the initial decision and hears submissions from the person appealing as to what they claim the mistake or error was made by the first court

- appellant may be acquitted or granted a new trial

Criminal Appeal Act 1912

Crimes (Local Courts Appeal and Review) Act 2001

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cont. Appeals against severity of sentence: - appeal against the sentence imposed upon them - discretionary nature of sentencing can easily lead to a

result that the offender feels is unreasonably harsh - appellant makes a submission explaining what errors

they believe were made, what the correct approach ought to have been and indicate what range of sentence they see to be appropriate

- appellate must show that an error has been committed AND that the sentence was excessive

- the appeal court will then impose a new sentence on the appellant

N/A R v Folbigg 2005 - Kathleen Folbigg was

found guilty of the murder of her four babies.

- Folbigg was sentenced to 40 years, with a non-parole period of 30 years

- Folbigg successfully appealed against the length of sentence, having it reduced to 30 years with a non-parole period of 25 years.

“New science would let Folbigg go free” - Sydney Morning Herald 2013 - ONE of Australia's

top forensic law authorities believes Kathleen Folbigg would walk free from jail if granted a retrial today - because of inaccurate evidence presented at her original trial.

- With no scientific evidence proving any of her babies were murdered, the diary extracts alone are ''insufficient'' to keep her in jail

“From Behind Bars” - ABC Australian Story 2018

N/A


cont. Crown Appeals: - sometimes the Crown believes a sentence imposed is

too lenient and does not reflect the seriousness of the offence

- the Crown must demonstrate to the appeal court that an error was made leading to an inadequate sentence

- Crown appeals frequently fail - If the appeal is successful, the substituted sentence

will be generally lower than what the court feels would have been appropriate in the first instance

N/A R v Jurisic 1998 - Jurisic plead guilty to

three charges of dangerous driving occasioning actual bodily harm

- sentenced to imprisonment for 18 months, with a minimum term of 9 months

- DPP appealed on the grounds that the sentence was inadequate

- Court Criminal Appeal handed down guidelines as to how sentencing for offences of dangerous driving should be approached as a result of the Crown appeal

N/A N/A

• types of penalties including: no conviction recorded, caution, fine, bond, suspended sentence, probation, criminal infringement notice, penalty units, community service order, home detention, periodic detention, forfeiture of assets, imprisonment, diversionary programs

No conviction recorded: - A judicial officer can either record the conviction

against the offender, or pass sentence with no conviction recorded.

- For less serious offences, particularly where they involve young offenders or first time offenders, a judicial officer might choose to not record a conviction.

Caution: - A caution is a formal warning, and is used for certain

less serious offences as a way to avoid the court system, in the hope that the offenders has learnt a lesson and will not reoffend.

- The caution is kept on police record and the offender will be told what will happen if they reoffend.

Fine: - A fine is a monetary penalty imposed on an offender,

and usually applies for less serious offences. - For minor offences, a fine will usually be issued

outside the court by the police or by local law enforcement officers.

- Under the Young Offenders Act 1997 (NSW), police can issue a formal caution to offenders between the ages of 10 and 18 for a variety of minor offences.

N/A N/A N/A


cont. Bond: - A bond is a compulsory condition imposed on the

offender for a period of time. - A good behaviour bond involves the offender

undertaking to be of good behaviour for the bond period.

- Other conditions imposed can include: – Attending family counselling. – Attending anger management courses. – Avoiding visiting a particular place. – Attending a drug and/or alcohol rehabilitation program. – Refraining from particular activities.

Suspended sentence: - A suspended sentence is imposed in place of

imprisonment on the condition that the offender enters into a good behaviour bond for the same period of time.

- A court can impose a suspended sentence where it is sentencing an offender to imprisonment of up to two years.

N/A N/A N/A N/A

cont. Probation: - Where probation is attached, the offender will be

placed under the supervision of a probation officer appointed by the court for a period of time.

- Under the terms of a probation order, the offender will have to adhere strictly to the conditions of the bond.

- The court will impose this where there is a higher danger of reoffending

Criminal infringement notice: - A criminal infringement notice is another type of

penalty that can be issued by police. - They allow police to issue on-the-spot fines for

certain offences. - The aim of criminal infringement notices is to

remove some of the burden on the criminal court system by allowing police to just issue fines for these minor offences.

N/A N/A N/A N/A


cont. Penalty units: - A penalty unit is a number used to equate one unit to

a monetary amount. A fine is calculated by reference to a number of penalty units multiplied by the dollar amount per unit.

Community service order: - A community service order is penalty that can be

imposed by the court instead of a period of detention or imprisonment.

- It involves compulsory supervised work in the community for up to 500 hours.

- REFORM: CCO (Community Corrections Order) replaces community service orders and good behaviour bonds. A CCO may be imposed for up to 3 years and includes conditions appropriate to the offender’s likelihood of recidivism, curfew, that the community service work must be undertaken or the offender must refrain from taking drugs or alcohol.

Crimes (Sentencing Procedure) Act 1999

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cont. Home detention: - For certain non violence offences where a person is

sentenced to 18 months’ imprisonment or less, the offender might apply to serve the sentence in home detention.

- Home detention allows the offender to serve their sentence while confined to their own home, and so is a much less severe option than full-time imprisonment.

- A probation and parole officer will also be assigned to monitor the order and conduct random visits.

Periodic detention: - Periodic detention or weekend detention is a type of

custodial sentence under which the offender is held in prison between Friday and Sunday evenings each week, but is at liberty at other times

Forfeiture of assets: - Where an offender has obtained money or property

through their criminal activities, a court may order that the money or property be recovered.

- Stops offenders from enjoying the benefits of their criminal act.

The power to forfeit assets is given to the court via a number of acts known collectively as the proceeds of crime legislation, the Criminal Assets Recovery Act 1990 (NSW). - Allows the assets to be

restrained, seized, and forfeited, and also requires the offender to pay an amount assessed as the value of the proceeds of their crime.

N/A N/A N/A


cont. Imprisonment: - A sentence of imprisonment deprives a person of

their liberty, and removes them from the community. - The non-parole period is a minimum amount of time

the offender is kept imprisoned before being eligible for release on parole.

- A sentence will be imposed for each offence the offender is convicted of, but will usually be served at the same time.

Diversionary programs: - A diversionary program is a court program set up to

divert certain offenders from more traditional criminal processes in the hope that they can be rehabilitated and encouraged to not reoffend.

- Sometimes called ‘therapeutic justice’, the programs may include education, medical or psychiatric treatment, rehabilitation, or social welfare assistance.

N/A N/A N/A Participants who completed the Drug Court’s diversionary program were: – 37% less likely to be reconvicted for any offence. – 65% less likely to be reconvicted for an offence against the person. – 57% less likely to be reconvicted for a drug offence.


• alternative methods of sentencing including circle sentencing, restorative justice

Circle sentencing: - Started in 2002 - Circle sentencing is based on Indigenous customary

law and more traditional Indigenous forms of dispute resolution.

- It involves community members and a magistrate sitting in a circle to discuss the offender’s crime, and then tailor the most appropriate sentence for the offender.

- It improves local Indigenous people, and makes it more meaningful to the offender and to restore the community’s confidence in the criminal justice system.

Restorative justice: - Involves bringing people together the offender and

the victim of the offence. - Provides an opportunity for the offender to take

responsibility for their actions, and the impact they have had on others, while giving victims a voice and an opportunity to confront the offender and work out a way to repair the damage done.

- It is now an important program run by the Restorative Justice Unit of the NSW Department of Corrective Services, and involves safe and private conferencing and mediation services run by a facilitator.

Criminal Procedure Amendment (Circle Sentencing) Regulation 2009

"Does circle sentencing reduce recidivism and keep Indigenous offenders out of jail? A study will find out” - ABC 2019 - BOSCAR's first

analysis of the program in 2008 concluded circle sentencing failed to reduce recidivism and raised concerns that the process did not address the root cause of the offenders' criminal behaviour, such as drugs and alcohol.

- There has not been a review in 10 years (big negative)

“Circle sentencing 'helping to keep our mob out of jail” - SBS 2016 - Circle sentencing

has a good reputation within most Indigenous communities

1,200 people completed circle sentencing between 2002 and 2018.


• post-sentencing considerations, including security classification, protective custody, parole, preventative detention, continued detention, sexual offenders registration, deportation

Security classification: - Correctional centres are divided into three security

classifications: maximum, medium, and minimum. - Maximum security centres hold offenders who

committed the most serious crimes and whose escape would be highly dangerous to the public

- Medium security prisons, inmates can move around more freely, but within high walls or security fences.

- In minimum security centres, there are fewer barriers to escape, and inmates are allowed more open conditions.

Protective custody: - Protective custody is provided in correctional centres

to offenders who are vulnerable to attack from other prisoners.

- Certain offenders, such as police officers, or ex-gang members, might also be vulnerable to attack.

Parole: - Parole is the conditional release of a prisoner from

custody after the completion of the minimum term of the sentence.

- Provides the offender with an incentive for rehabilitation.

- The possibility of early release will increase the likelihood of the overall reform of offenders and encourages better prisoner discipline within the prison setting.

- When released on parole, an offender is put under the direct supervision of a parole officer and is required to report to their parole officer as directed.

Preventative detention: - Preventive detention involves imprisonment of a

person for some type of future harm that they may commit

- The person is detained in custody without actually having committed for being found guilty of any offence.

- There are two types of preventive detention: - Post-sentence preventive detention: occurs when

a person has already been sentenced and has served that sentence.

- Preventive detention without charges: occurs at any time.

Parole: Crimes (Administration of Sentences) Act 1999 - Defines serious offenders. - This include inmates

serving a sentence with a non-parole period of at least 12 years, inmates convicted of murder, or those where the Commissioner of CSNSW has determined that designation of serious offender is appropriate.

- Serious offenders are thus required to undergo mandatory electronic monitoring on parole

Preventative detention: The Terrorism (Police Power) Act 2002 (NSW) allows police to make an application to detain a person in custody for a maximum period of 14 days.

Parole: R v Sampieri - A member of the

public allegedly caught him naked in the dance school’s bathroom, in the process of interfering with a seven-year-old child. He allegedly filmed the act of indecency for the purpose of producing child abuse material

- After investigating his phone records, detectives went to Silverwater Correctional Centre — where Sampieri is being held — and charged him with 87 counts of using a carriage service to menace, harass or offend. He has been charged with a total of 98 offences

- Sampieri faces becoming the first person to be jailed for life if convicted of having sexual intercourse with a child under the age of 10 after the maximum sentence was increased from 25 years in 2015

Parole: “Sex offenders on parole in NSW to be electronically tracked, Corrective Services Minister says” - ABC 2018 - Paedophiles, rapists

and all other serious sex offenders on parole in New South Wales will be outfitted with electronic tracking devices

- There are currently 64 sex offenders on parole being electronically monitored in NSW and this could increase to about 493 under the changes.

‘'Kogarah child attack': Why ‘remorseful’ Anthony Peter Sampieri got less than five years’ jail’ - Shoalhaven Leader 2018 - The offender

committed the crime whilst on parole, this could have been prevented by ankle monitoring

Parole: In 2017, 8,308 people were released on parole. 32 parole orders were made in relation to serious offenders.


cont. Continued detention: - Post-sentence preventive detention involves

detaining offenders after they have served their full sentence for the offence they committed.

- The allowable purposes for continued detention are: – To ensure the safety and protection of the community. – To facilitate the rehabilitation of serious sex offenders.

Sexual offenders registration: - The Australian National Child Offenders Register

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

- Offenders will be required to provide a range of personal information, as well as travel plans and to keep this information regularly up to date.

- The sexual offenders registries target certain offenders long beyond the period of the sentence they have been required to serve, and deny the chance for the offender to move on in the rehabilitation process.

Deportation: - Under the 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.

- If a person is also found to constitute a threat to Australian security, or has been convicted of a serious offence, as well as being deported, they may also be prohibited from ever returning to Australia.

There is a scheme of post-sentence preventive detention under the Crimes (Serious Sex Offenders) Act 2006 (NSW) that allows for continued detention of offenders serving a sentence for a serious sexual offence

Sex offender registration: - Established under the

Child Protection (Offenders Registration) Act 2000 (NSW), persons convicted of a nominated violent or sexual offence against a child are required to register at the local police station: – When the person is sentenced for the offence. – When the person ceases to be in government custody in relation to the offence

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5. Young Offenders Information Legislation Cases Media Stats

• age of criminal responsibility

- In NSW, the age of criminal responsibility is 10 years old

- Doli incapax is translated from Latin as ‘incapable of evil’. It states a presumption that a child between the ages of 10 and 14 cannot commit a crime because he or she does not understand the difference between right and wrong.

- The doctrine of doli incapax is a rebuttable presumption. This means that a child between the ages of 10 and 14 may be convicted of a crime if the Prosecution can demonstrate that the defendant child was, at the time, able to distinguish between right and wrong.

- Section 5 of the Children (Criminal Proceedings) Act 1987 provides that a child under the age of ten years cannot commit an offence. This statutory presumption is irrebuttable.

- R v Blessington - James Bulger murder 1993 - Corey Davis manslaughter

1998

Locked Up for Life - The R v Blessington case’ - SMH

“Calls to raise criminal responsibility age as children languish in watch houses” - ABC Radio 2019 - Calls for an urgent

increase to the age of criminal responsibility after revelations about the number of children left in Queensland watch houses for weeks on end.

- Children as young as 10 have been placed in isolation cells, with violent adults and even with sex offenders.

“Should the age of criminal responsibility be raised?” - ABC Radio 2018 - Australia has one of the

lowest ages of criminal responsibility in the world.

- Federal and State Attorneys General have undertaken a 12 month review, and some are campaigning for the age to be lifted as high as 16 years.

Around 600 children under 14 are placed in detention in Australia every year.

5. Young Offenders

• the rights of children when questioned or arrested

Questioned: - The police have a right to ask a person to

identify themselves by giving their name and address.

- A person has to legally respond when: – The police officer suspects on reasonable grounds that the person can assist them in investigating an indictable offence that was committed nearby. – In a number of situations relating to vehicles and traffic. – A person is suspected of committing an offence on a train.

- For a person between 10 and 18, a responsible adult other than a police officer must also be present, and if the person is 14 or older, they must agree who the adult should be

Arrested: - The conditions under which a young

person can be lawfully arrested are the same as those for adults

- People under 18 years of age in NSW can be detained for a maximum of four hours, or up to a further eight hours if a warrant for the extension is granted.

- For young people 14 years and over, police may take fingerprints or photographs if it is for the purpose of identifying them.

- For children under 14 years, the police can only take photos or fingerprints if they apply to the Children’s Court to do so.

- Police cannot take a DNA sample of any suspect under 18 years old unless they have a court order allowing them to do so.

- If a case is acquitted, found not guilty, or is discontinued, the police must destroy any fingerprints, photos, or DNA samples on request of the parent or guardian

Under the Summary Offences Act 1988 (NSW), a person can be stopped and required to provide their details if suspected of being under the age of 18, and carrying or consuming alcohol in a public place without adult supervision or reasonable excuse

Under section 13 of the Children (Criminal Proceedings) Act 1987 (NSW), any information or statement a child or young person gives to police will be inadmissible as evidence in court proceedings against that person unless there is a responsible adult, or the judge or magistrate otherwise decides that it should be admitted

Under the Law Enforcement (Powers and Responsibilities) Act 2000 (NSW), police can never perform a strip search on a child under 10.

Cheryl Grimmer case - key evidence ruled as inadmissible meant the prosecution dropped the case

“Cheryl Grimmer murder case dropped after NSW Supreme Court rules key evidence inadmissible” - ABC News 2019 - A murder charge

against a man accused of killing toddler Cheryl Grimmer, who went missing almost 50 years ago, has been dropped.

- The judge ruled the key piece of evidence, the accused's police interview from April 1971, inadmissible because there was no parent, adult or lawyer accompanying the then 17-year-old.

- The accused was vulnerable when he was interviewed by police.

- He had a "low average intelligence, was immature, and more vulnerable than the average 17-year-old as a result of his disturbed upbringing, difficult relationship with his parents, history of running away from home, moving countries, low intellect and limited education".

N/A

Information Legislation Cases Media Stats5. Young Offenders

• Children’s Court – procedures and operation

- Matters in the Children’s Court are presided over by a magistrate, but there is no jury.

- In its criminal jurisdiction, the court can hear the following matters: – Any offence other than a serious indictable offence committed by a child. – Committal proceedings of any indictable offence, including serious ones.

- The Children’s Court Clinic is asked to complete an assessment, where they are ‘specific psychological, psycho-social, or mental health issues present in the child’s situation that the court needs to consider prior to passing sentence’.

The Children’s Court Clinic was established under the Children’s Court Act 1987 (NSW), and functions to make clinical assessments of children and submit reports to the court.

N/A N/A N/A

• penalties for children - The purpose of rehabilitation is given primary weight.

- Penalties will be significantly less severe than in ordinary law, and will be considered with the child’s rehabilitation in mind.

- A control order is the most severe penalty available in children’s criminal proceedings.

- The maximum imprisonment time is two years, and the young offender is not held at an adult correctional centre, but at the juvenile justice centre.

- The seriousness of the offence is a significant consideration in determining the sentence.

- Exceptions to the rule where a young offender is involved in repeated offences, or where he or she engages in grave adult behaviour, which is where the offender has acted like an adult in terms of the seriousness of the offence and/or the level of premeditation involved

- Under the Children’s (Criminal Proceedings) Act 1987 (NSW), principles include: – The penalty imposed on a child shall be no greater than that of an adult for the same offence. – Children should be assisted with reintegration into the community. – Children accept responsibility for their actions. – Subject to other principles, consideration should be given to the effect on the victim.

N/A “Hanson wants curfews, fines and bush camps for repeat youth offenders” - SBS 2019 - Queensland Senator

Pauline Hanson has suggested curfews, bush camps and fines imposed on parents.

- Ms Hanson also suggested young offenders be placed in isolated communities such as bush camps in replacement of bail houses.

- Premier for Queensland, Annastacia Palaszczuk, said youth crime is a “complex issue”

“Amnesty International calls for Indigenous-led solutions to youth justice” - ABC Radio 2019

Aboriginal and Torres Strait Islander children are 31 times more likely to be held in custody compared to their non-Indigenous peers.

Every year, about 600 children under the age of 14 end up in prison, and 70 per cent of them are Indigenous Australians.


• alternatives to court - Diversionary programs - Encourages rehabilitation, reduce rates

of recidivism, and reduce the burden of more minor youth offences on the court system

- Warning - Caution - Youth justice conference

- The Young Offenders Act also allows for youth justice conferences, which can be used when a young offender admits to an offence, and consents to having it dealt with by this method.

- The purpose is to allow the offender to take some responsibility for their actions, to promote a better family understanding of the issues, and to provide the offender with appropriate support services to help them overcome their difficulties.

- Increases the rights of victims in the criminal justice process.

- Conferences hold the offender accountable, but empower families and victims in decisions about a child’s offence and, where suitable, make reparation to the victim

In NSW, the primary diversionary program for young offenders is provided for by the Young Offenders Act 1997 (NSW).

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6. International Crime Information Legislation Cases Media Stats

• categories of international crime, including: - crimes against the

international community

International crime: Crimes which affect the peace or safety of more than one state or which are so reprehensible in nature as to justify the intervention of international agencies in the investigation and prosecution thereof.

Crimes against the international community: - Recognised by the international community

as being of universal concern - Include some of the most extreme crimes

that are deemed so serious that they are condemned by the majority of the international community, and may be punishable internationally. Such as:

- Genocide: - Brutal acts, intended to destroy all or

part of a national, ethnic, racial, or religious group.

- Prior to the ICC, genocide, war crimes, and crimes against humanity were often dealt with by the international community in specific ad hoc tribunals set up to prosecute particular incidents

- Crimes against humanity - Acts committed as part of a widespread

or systematic attack against any civilian population

- May be easier to prosecute by the ICC because of the broader definition and issues of proof

- War crimes: - An action carried out during the conduct

of a war that violates accepted international rules of war

- War crimes include torture, wilful killing, extensive and unjustifyable military force, intentionally directed attacks on civilians, intentionally directing attacks at humanitarian personnel or equipment

Acts of genocide were criminalised in one of the first ever treaties established by the United Nations - the Convention on the Prevention and Punishment of the Crime of Genocide 1948

The Geneva Conventions date back to 1864 and are a series of treaties that set standards for humanitarian treatment of the victims of war, such as civilians, the sick and wounded, prisoners of war, and medical or religious personnel

Rwandan Genocide - During the Rwandan

genocide of 1994, members of the Hutu ethnic majority in the east-central African nation of Rwanda murdered as many as 800,000 people, mostly of the Tutsi minority

“Swedish Court Sentences Man to Life in Prison for Role in Rwanda Genocide” - New York Times 2016 - The Stockholm District

Court found that the man, a Rwandan who obtained Swedish citizenship in 2012, had participated in five massacres

- He was also involved in the deaths of hundreds of people who had sought refuge in a municipal building in the central Rwandan town of Muyira and in an adjacent adult education centre

“Rwanda genocide: the fight to bring the perpetrators to justice” - The Guardian 2014 - The international

criminal tribunal for Rwanda (ICTR).

- Almost 20 years of legal argument and an estimated $1.7 billion, only a tiny proportion of the Rwandan malefactors has been brought to justice.

The International Criminal Tribunal for Rwanda (ICTR) - 62 out of 93

sentenced - 14 acquitted

6. International Crime

- transnational crime Transnational crime: - Crimes that take place across international

borders - Transnational crimes may originate in one

country, but be completed in another, or may be committed in one country, but the result or injury may occur in another. Such as: - human trafficking - international fraud and white collar

crime - transnational internet crime - international terrorism - creation and trafficking of child

pornography or trade in illegal substances

- Usually prosecuted under the law of one or another country’s domestic jurisdiction

Narcotic Drugs Act 1967 (CTH)

Drug Misuse and Trafficking Act 1985 (NSW)

Single Convention on Narcotic Drugs 1961

United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988

Operation Shenzi 2018 - Drug trafficking - Operation Shenzi was a

joint Australian Federal Police, Australian Border Force, Australian Criminal Intelligence Commission and Western Australia Police Force investigation carried out in 2016, which culminated in the arrest of 14 people who were either crew members of the mother ship Mega Profit II or waiting onshore in Western Australia to collect and then distribute the drugs.

- Seven men involved in trying to smuggle 182kgs of methamphetamine (ice) onto a remote beach in Western Australia, were collectively jailed for over 164 years in June 2018.

- The importation was a well-planned international operation involving multiple participants, with some of the coordination carried out by unknown persons in Hong Kong and Malaysia

“The new drug highway: Pacific islands at centre of cocaine trafficking boom”- The Guardian 2019 - Hundreds of kilograms

of cocaine have washed up on remote Pacific beaches

- The Pacific has been a transit point in the drug route for decades, but law enforcement said the use of the route appears to have increased dramatically in the past five years.

- Since 2014, Australian federal police have been involved in the seizure of about 7.5 tonnes of cocaine shipped in small vessels such as yachts through the region and intended for Australia.

In 2016-17, a record of 27 tonnes of illicit drugs were seized by Australian authorities

98.8% of cannabis was internationally imported into Australia via international mail services in 2016-17

Global seizures of amphetamines increased by 8% between 2014 and 2015

Information Legislation Cases Media Stats6. International Crime

• dealing with international crime: - domestic measures

- the most significant development was Australia signing and ratifying the Rome Statute

- Australia plays a role as a state party to the ICC and actively participates in discussions among the state parties and administration of the courts

- The Australian Federal Police enforce Commonwealth criminal law and protect Australia’s international interests from crime

- The AFP are posted in 25 countries and are deployed for international monitoring and peacekeeping

- The Australian Crime Commission is a national body established to combat serious and organised crime, it investigates matters of national concern

- The Australian High Tech Crime Centre was established to coordinate all Australian law enforcement authorities in fighting serious types of crime that involve the use of technology

- States and territories consist of independent divisions to stop crime

- Extradition is the process whereby one country surrenders a suspect or convicted criminal to another country to face criminal charges or sentencing. Australia’s extradition is governed by the Extradition Act 1988 (CTH)

War Crimes Act 1945 (CTH)

Geneva Conventions Act 1957 (CTH)

Australian Crime Commission Act 2002 (CTH)

The AFP raids of the ABC “Media cannot protect top secret information: AFP” - Sydney Morning Herald 2019 - the AFP cannot trust the

media to protect the reputation and trust held by the international community

- the AFP is attempting to restrict the press’ freedom in order to preserve Australia’s international interests and relationships

There were a total of 210 AFP police officers overseas at the start of 2019


- international measures - Government have shown continuing commitment and cooperation with international treaties

- Before the development of the International Criminal Court, international crimes were typically dealt with on a domestic level or by ad hoc tribunals

- INTERPOL has 188 member countries, included Australia. The organisation was created as a means of improving cooperation between police around the world.

- INTERPOL cooperated with the UN to improve the skills of police peacekeepers and to share the communications networks and criminal data

- The United Nations Convention Against Transnational Organised Crime is regarded as the main international instrument in combatting transnational organised crime

- The International Criminal Court: - The International Criminal Court (ICC)

investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression

- The Court is participating in a global fight to end impunity, and through international criminal justice, the Court aims to hold those responsible accountable for their crimes and to help prevent these crimes from happening again.

- As a court of last resort, it seeks to complement, not replace, national Courts.

Geneva Conventions

Rome Statute of the International Criminal Court

United Nations Convention Against Transnational Organised Crime

International Criminal Tribunal for Rwanda

International Criminal Tribunal for the former Yugoslavia

“Philippines Officially Leaves the International Criminal Court” - The New York Times 2019 - PM. Duterte said that

the Philippine government had enough mechanisms in place to ensure that the justice system functioned properly

“Congo Warlord Called ‘the Terminator’ Is Convicted of War Crimes by I.C.C.” - The New York Times 2019 - A Congolese warlord

known as “the Terminator” carried out atrocities in a reign of terror against civilians in the Democratic Republic of Congo, according to the International Criminal Court in The Hague,

- Convicted of 13 counts of war crimes and five counts of crimes against humanity, committed in 2002-2003

- Charges included murder, rape, sexual slavery, intentionally directing attacks against civilians, ordering the displacement of the civilian population, and conscripting children into an armed group.

The budget for the International Criminal Court for 2019 was approx. $250 million ($241,934,245.32)


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