Law & Investigation Flashcards
(36 cards)
Original evidence is
the oral testimony of what a victim or witness perceived with their own five senses. It is sometimes referred to as eyewitness evidence.
Types of evidence
Original
Real
Documentary
Direct vs Indirect
The three essential qualities of all evidence are
relevance, reliability, and fairness. All evidence MUST meet these qualities.
the ‘hearsay rule’ is
it prevents anybody from giving any evidence that wasn’t perceived with their own five senses
Main Acts of Parliament that provide offence creating.
Crimes Act 1900 (NSW)
Summary Offences Act 1988 (NSW)
Drugs Misuse and Trafficking Act 1985 (NSW)
Road Transport Act 13 (NSW)
Key terminology for offences
Four types of legislation (definition/offence/procedural/powers)
Summary Vs Indictable
Summary > Minor Indictable > Serious Indictable
Summary > Table 2 > Table 1 > Strictly Indictable
Key offence creating Acts
Crimes, Summary, DMTA, Road Transport
What constitutes an offence
Actus Reus – guilty act – positive or negative act
Mens Rea – guilty mind – Intentionally – recklessly (test of foresight)
Elements of an offence
Elements are the essential ingredients required by law (to be supported by evidence, to the required standard) to establish that the offence was committed.
Criminal liability
Requires proving mens rea. A person’s legal responsibility for a criminal act. The degree of guilt or blame that is assigned
Strict liability
No proof of Mens Rea required, only Actus reus
Destroying or damaging property offence example
The elements of section 195 of the Crimes Act 1900 (NSW) are:
1. The Accused
2. Intentionally or recklessly
3. Destroyed or damaged property
4. Belonging to another (or that person and another)
main acts that you will need to deal with as a police officer
Crimes Act 1900 (NSW): The main piece of legislation relating to criminal offences in NSW
Summary Offences Act 1988 (NSW): An act, much smaller in size than the Crimes Act, which contains less-serious criminal offences
Drug Misuse and Trafficking Act 1985 (NSW): The main piece of legislation dealing with drug offences in NSW
Road Transport Act 2013 (NSW): Contains most road and traffic-related offences
four types of sections contained within the Acts
Definition sections
Offence creating sections - those that provide for certain actions (such as damaging property, assault or stealing)
Procedural sections- provide certain procedures that are to be followed
Powers sections - police power to do certain things, most often, to do something that contravenes or interferes with a person’s basic human rights
What are summary offence and indictable offence.
Summary offences are less serious in nature, they are heard in the lower (local) court by a magistrate alone. Offences include offensive language, offensive conduct, and obstruction of traffic.
Summary offences (0 to 2 years punishment)
Indictable offences are of a more serious nature, that may proceed to trial (i.e., heard by a judge and jury), in a higher court (district or supreme). Offences include assaults, stealing, damaging property, robbery and murder ect
Minor Indictable offences (>2 <5 years punishment)
c)
Serious Indictable offences (5 or more years punishment)
two ways in that offences can be categorised.
Offences categorised in terms of punishment (or penalty) applicable to the offence
Category 1 Punishment
a) Summary (0 to 2 yrs penalty)
b) Minor Indictable (>2 <5 yrs penalty)
c) Serious Indictable (5+ yrs penalty)
Offences categorised in terms of procedure, that is, which court (local, district or supreme) can hear the case.
Category 2 Procedure
* Summary Strictly local court
* Table 2 Local unless prosecution elects to go higher.
* Table 1 Local unless prosecution or defence elects to go higher.
* Strictly Indictable Strictly District or Supreme
court locations
Summary (only the local court)
Table 2 Indictable (Local court unless prosecution elects to take matter to a higher court e.g., the district court)
Table 1 Indictable (Local court unless prosecution or defence elects to take matter to a higher court e.g., the district court)
Strictly indictable (Matter can only be heard in the higher courts; district or supreme)
Strictly / table 1 / table 2 examples
Strictly Indictable offences include:
Murder
Manslaughter
Dangerous driving occasioning death
Kidnapping
Table 1 offences include:
Possess child abuse material
Assault Occasioning Grievous Bodily Harm (AOGBH)
Robbery
Stealing/larceny where the value or property exceeds $5000
Destroy or damage property where the value of property exceeds $5000
Table 2 offences include:
Possessing an unregistered firearm in a public place
Assault Occasioning Actual Bodily Harm (AOABH)
Record intimate image without consent
Stealing/larceny where the value of property does not exceed $5000
Destroy or damage property where the value of property does not exceed $5000
Local vs district and supreme court
The local court is
- More efficient to run than the district or supreme courts.
- Heard in front of a magistrate alone.
- Matters can also be heard much quicker in the local court, which enables matters to be dealt with in appropriate time frames.
- All summary offences (offensive language etc.) are heard in the local court.
- All Table 2 offences are heard in the local court unless the prosecution decides to ask for the matter to be heard in a higher court
- All Table 1 offences are heard in the local court unless the prosecution or defence decides to ask for the matter to be heard in a higher court
In the district and supreme courts,
- Matters are heard before a judge and a jury of 12 people.
- All strictly indictable offences (murder, manslaughter, dangerous driving causing death etc.) are heard in the district or supreme court
you should always take a report of any incident including but not limited to:
when a criminal offence has occurred
use of a power (including arrest or search)
motor vehicle collisions
missing persons
located property.
What particulars do you record for an incident
Time / Date / Place
Incident type
LOC: Location of incident (if different to place)
VIC/WIT: Victim/Witness details
TOI: (Time of Incident) = timeframe within which the incident occurred
DESC: Description of property lost, damaged or stolen
Value of any loss
Any other relevant information
When would you record particulars only and not take a statement?
Obtain particulars when:
A person may not have witnessed or been able to give any information that provides you with ‘lines of enquiry’.
The offence is very minor in terms of seriousness, and it is unlikely that you will commence legal proceedings against the suspect.
All reasonable avenues of investigation have been explored but proved fruitless (for example, no suspect can be identified).
The incident reported does not amount to an offence.
What is Actus reus + Mens rea
Actus reus (guilty act)
A guilty act can be established in two ways, by a positive act (most common) or by a negative act (less common).
Actus reus (guilty act) positive act: Example, John kills Simon by shooting him.
Actus reus (guilty act) negative act: Example, a parent doesn’t feed a baby and the baby dies.
Mens rea (guilty mind)
A guilty mind can also be established in two ways intentionally or recklessly.
Mens rea (guilty mind) intentionally: Example, John intended to kill Simon by shooting him.
Mens rea (guilty mind) recklessly: Example, John didn’t intentionally shoot at Simon, but shot his firearm towards a group of people and the bullet hit and killed Simon.
Prosecution must prove both in order to prove the accused as guilty
Elements of an Offence (195 Destroying or damaging property example)
The Accused
Intentionally or recklessly
Destroyed or damaged property
Belonging to another (or that person and another)
What is Criminal Liability?
Criminal liability refers to a person’s legal responsibility for a criminal act. In other words, it is the degree of guilt or blame that is assigned to an individual for committing a crime.
Strict Liability Offences
Not all offences require the proof of actus reus and mens rea. There are some offences where police are not required to prove mens rea (guilty mind). These offences are called strict liability offences.
What is evidence?
Evidence is any relevant information used to prove or disprove the ‘facts’ surrounding the circumstances of a criminal offence
inculpatory and exculpatory evidence
inculpatory evidence - evidence that points towards the guilt of the suspect (Incriminate)
exculpatory evidence - evidence that points towards the innocence of the suspect (exonerate)
Three general types of evidence
Original evidence: Oral testimony provided by an eyewitness to the crime
Real evidence: Physical evidence found at the scene of a crime or used in the commission of an offence.
Documentary evidence: A hard copy, electronic or audio record that provides evidence relating to the commission of an offence.
