legal crime essay plans

Essay Plans On Crime (Criminal Investigation Process)

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My essay plans for crime sections (investigation process, trial process, sentencing and punishment, young offenders)

Bail and remand ⦁ Bail Act 2013 (NSW), bail conditions R v Hawi, 2014 ⦁ Criticism of 1978: “Overly complicated, full of anomalies, no consistent outcomes” – John Hatzistergos, 2014 ⦁ REFORMS: unacceptable risk test (2013) and show cause test (2014) ⦁ Controversial: burden of proof & presumption of innocence ⦁ BOCSAR 2018 report: 36% increase bail refusal ⦁ REFORMS: terrorist charges refused bail (2017)

Gathering of evidence by police ⦁ Evidence Act 1995 (NSW) ⦁ Admissibility of evidence: obtained legally, relevant, reliable ⦁ LEPRA 2002 (NSW) and Crimes (Forensic Procedures) Act 2000 ⦁ Police need consent to collect DNA or local court order ⦁ Admissibility prevents unreliable evidence and wrongful convictions ⦁ Criticism: “Most people have unrealistic perceptions of DNA evidence and wrongfully consider it infallible, which can lead to miscarriages of justice” – SMH, 2014 ⦁ R v Jama (2008): flawed evidence = wrongful conviction

Detention and interrogation of suspects ⦁ LEPRA 2002 (NSW) ⦁ Issue caution, right to silence ⦁ Children’s Criminal Proceedings Act 1987 (NSW) ⦁ Under 18s adult required and must consent to adult present ⦁ Maximum investigation period = 6 hours (+6 with local court detention warrant) s. 115 LEPRA ⦁ Terrorism (Police Powers) Act 2002 (NSW) ⦁ Preventative detention: 14 days without charge, age 14+ ⦁ “We must do everything possible to protect our community from terrorist attacks, and these powers do exactly that” – ABC, 2015 CRIMINAL TRIAL PROCESS

Defence to criminal offences ⦁ Crimes Act 1900 (NSW) – lists defences ⦁ COMPLETE: Mental health/insanity (R v MD, 2016) ⦁ Mental Health (Forensic Procedures) Act 1990 (NSW) ⦁ Institutionalised + reviewed every 6 months by Mental Health Tribunal (s. 39) ⦁ Controversial: indefinite sentence, detainment of innocent ⦁ PARTIAL: Extreme provocation (victim blaming) ⦁ Abolished in many states, amended in 2014 to ‘extreme’ after R v Singh, 2012 ⦁ Criticism: “The reform serves to restrict the partial defence to the point of redundancy” – Sydney Criminal Lawyers, 2016

Use of evidence ⦁ Evidence Act 1995 (NSW) – outlines rules ⦁ Witnesses: expert witnesses eg. Doctors, forensics, psychiatrists ⦁ Very persuasive and useful but not flawless (R v Wood, 2012) ⦁ Admissibility of evidence ⦁ Relevant, obtained legally, uncompromised ⦁ Protects from unreliable evidence and wrongful convictions ⦁ Hearsay is inadmissible

Plea and charge negotiation ⦁ Early Appropriate Guilty Pleas ⦁ Criminal Procedure Act 1986 (NSW), amended in 2018 ⦁ Caused by NSWLRC report ‘Encouraging EAGP’ ⦁ 25% discount and reduces closer to trial ⦁ Charge negotiation avoids costs and court time ⦁ Controversial: crimes can go unpunished, prosecutors can coerce ⦁ Criticism: “The bargaining is conducted in secret negotiations between the two parties, neither of which have any interest in making the charges dropped public” – SMH, 2011

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Crime - Essay Plan (Neilab Osman)

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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, o mostly yes it does as it is the fundamental aim of the law in theory, o 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, ▪ 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. 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, ● 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, 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, 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, ● 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, 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 prevention, 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., 2: social crime prevention, 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. 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 measures, o 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. the, ● 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 recidivis, o 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), ▪ protects society from dangerous criminal, ▪ provides justice to the victim through retribution, o 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 etc, o 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.) 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 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, 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, ▪ 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, ▪ 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. 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, situational effective:, 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 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, 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, 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, o police are law enforcement officials who have judicial power under lepra to apply and enforce the law, o their powers are unlined in lepra, o they aim to protect the greater community from harm, o 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 government, o they make sure than laws are adhered to by enforcing them, thus do not have unlimited power, o 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,, ● 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. jaywalking, ⇒ use technology (such as phone tap, surveillance or dna) to assist in investigation, ⇒ arrest and interrogate suspects, ● s 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;, ⇒ report example: boscar 2013 reporting violence to police: a survey of victims attending domestic, violence services, ● survey of 300 people showed only 51% of domestic violence are reported to police🠀 socio-, cultural reasons, economic reasons, ● nearly 17% 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 education, o 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, 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, 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 tap, o 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 conviction, o 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, ▪ 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 violence, o 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, 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. language, fear of being isolated from community, women’s, expectations in their culture etc.), ⇒ 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 (, 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, ⇒ ineffective in the case: dr haneef, ● federal government inquiry (clarke inquiry) in 2008 to investigate the circumstances of the, ● found that haneef was wrongly charged and criticised the various bodies involved with the, o however terrorism rule is effective for the community as they are kept away from harm 🠀 not a good, 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 silence, o 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 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, 2: the evidence act and inadmissible evidence 🠀 use of dna evidence, o this protects the rights of the offender, o 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, ⇒ 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 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, 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, 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% 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, 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.

• Multiple Choice

Subject : Legal studies

School : royal palm beach high school - royal palm beach-fl.

• Discover more from: Legal studies Royal Palm Beach High School - Royal Palm Beach-FL 5   Documents Go to course
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