Yearly Flashcards
(122 cards)
1
Q
Define crime
A
A crime occurs when a person breaks a law and commits an offence against the community in general or against a particular victim.
2
Q
Difference between NSW and Commonwealth Laws
A
Commonwealth Laws: Commonwealth laws apply in all states and territories.
NSW Laws: NSW Laws apply only in NSW
3
Q
Examples of crime
A
Driving offences Larceny (stealing) Destroying or damaging property Possessing a prohibited drug Common assault.
4
Q
To what extent does a crime need to be proved
A
The prosecutor must prove to the magistrate each element of the offence ‘beyond a reasonable doubt’.
5
Q
Define elements of the offence
A
The prohibited conduct and the mental element of a guilty mind or intention.
6
Q
Elements of crime involving ‘destroy or damage property’
A
Defendant (you)
intentionally or recklessly (meaning you could see that your actions might destroy or damage the property but you continued anyway) destroyed or damaged property belonging to another person or belonging to the defendant (you) and another person.
7
Q
Define defence
A
A defence is an explanation or reason that suggests you should not be found guilty of an offence.
A defence may be:
a denial that you did what the prosecutor says you did
a legal excuse or justification for your actions.
8
Q
Examples of legal defence
A
Genuine accidents
Honest and reasonable mistake of fact
Self-defence or defence of another person
Necessity or duress (where you are forced to do something to avoid something worse happening)
You had a legal right to do what you did.
9
Q
Define mens rea
A
Mens rea means to have “a guilty mind.” The rationale behind the rule is that it is wrong for society to punish those who innocently cause harm.
10
Q
Define actus reus
A
Actus reus literally means “guilty act,” and generally refers to an overt act in furtherance of a crime. Requiring an overt act as part of a crime means that society has chosen to punish only bad deeds, not bad thoughts.
11
Q
To be considered criminal behaviour, what must occur?
A
To constitute criminal behaviour, the actus reus and the mens rea must occur simultaneously
12
Q
Do all crimes have the same degrees of intent?
A
Different crimes require different degrees of intent.
13
Q
Provide examples of ‘Do all crimes have the same degrees of intent?’
A
For example, to prove larceny, the prosecution must establish that the defendant intentionally took property to which he knows he is not entitled, intending to deprive the owner of possession permanently. Negligent homicide, on the other hand, involves thoughtlessness, inadvertence, or inattention in a person’s duty to exercise due care toward others. A drunk driver who kills another is often charged with criminal negligent homicide.
14
Q
Can bail be given for every offence?
A
No,
15
Q
Who can give bail?
A
Bail can be granted by the police or a judge
16
Q
Who does the Department of Public Prosecutions represent?
A
The DDP appears for the State of NSW
17
Q
What happens if the accused is guilty?
A
If the accused is found guilty, the judge conducts a sentencing hearing.
18
Q
What punishments can be handed?
A
A judge has many ‘non-custodial’ penalties to choose from, such as bonds and community service orders if they are appropriate. However, for more serious crimes the sentence is often imprisonment.
19
Q
What influences the actual term of imprisonment?
A
Criminal offences carry a maximum period of imprisonment, leaving the judge to decide, based on the facts of the case, the actual term of imprisonment to be served.
20
Q
Define mitigating factors
A
Mitigating Factors: Factors that make the case sentence less severe
21
Q
Define aggravating factors
A
Aggravating factors: use of violence, weapons, offence committed in company, gratuitous cruelty, act motivated by hatred of a particular group of people, victim was a public official such as a police officer, teacher, paramedic, etc…
22
Q
What cases does the local court deal with?
A
It dealt with what used to be known as ‘petty’ or minor crimes.
It also has jurisdiction to hear civil law matters up to the value of $100 000.
Bail hearings in criminal matters
Committal proceedings for serious offences are held
23
Q
Local court matters are trialled by who?
A
There is no jury in the Local Court. Local Court matters are tried solely in front of a magistrate
24
Q
What does the senior prosecutor do in the Local Court?
A
A senior prosecutor reviews the evidence and confirms which charges will proceed
25
What happens after the charges are confirmed?
A mandatory case conference must then occur between prosecution and defence.
26
Magistrate purpose in a committal proceeding
In a committal proceeding, a magistrate will hear the prosecution’s evidence and determine whether it is sufficient to support conviction by a jury.
27
What is the Coroner's court?
The Coroner’s Court is a local court that deals with the manner and cause of a person’s death, and with fires and explosions where property has been damaged or a person has been injured.
28
Role of Coroner
The role of a coroner is to ascertain the deceased person’s identity, and the place, date, manner and medical cause of death.
29
Evidence used by coroner
Information from medical practitioners and police personnel as well as evidence from the scene is usually evidence that is relied upon.
30
What cases does the children's court deal with?
The Children’s Court deals with cases connected with the care and protection of children and young people, and also with criminal matters concerning children and young people who are under the age of 18 years, or who were under 18 at the time of an alleged offence.
31
Define closed court
The general public is prohibited from viewing the proceedings.
32
What is the MERIT program?
The MERIT program is a court based diversion program that allows arrested defendants with substance use problems to be assessed for suitability to undertake treatment and rehabilitation under bail conditions.
33
Advantages of drug court
After successfully completing the full program through Parramatta Drug Court, participants can hope to be able to move on from drug addiction, and enjoy a better quality of life, successful completion of the program can also mean they may be able to avoid a prison sentence and the court will review their progress and participation in the program, along with any time spent in custody during the program, and take this into consideration when deciding their final sentence.
34
Who is eligible for the drug court?
Participants need to live in the catchment area for the particular court they are attending, and they will need to be referred by one of the local or district courts that serve that particular area.
Parramatta Drug Court participants are required to fulfil other criteria, including that they:
Are 18 years of age or over
Are likely to plead guilty to their charges
Are likely to be sentenced to a prison term
Are dependent on the use of drugs
Are willing to participate in the program
Those who have committed a violent or sexual offence, and those who are charged under division 2, part 2 of the Drug Misuse and Trafficking Act 1985, will not be considered to be eligible for the program.
35
3 phases of drug court
Phase 1 – initiation where participants are expected to reduce their drug use, stabilise their health and refrain from criminal activity.
Phase 2 – consolidation, where it is expected that participants will remain drug and crime free, and develop valuable life skills as well as address any underlying issues that may have led to their drug dependence.
Phase 3 – re-integration, where participants accept a crime and drug free lifestyle, gain employment or become ready for employment, and be fiscally responsible.
36
What is the district court?
The District Court of New South Wales is the intermediate court in the state’s court hierarchy.
The District Court is a trial court where matters can be heard before a judge and a jury.
37
Define appellate jurisdiction
It can hear appeals of decisions made by lower courts such as the Local Court and the Children’s Court.
38
Matters heard by District Court
The District Court has jurisdiction to hear serious criminal matters, as well as civil matters up to $750 000 (or higher in some cases).
39
What matters are heard in the Supreme Court?
Matters that are heard by the Supreme Court in its original criminal jurisdiction include:
• murder, manslaughter and attempted murder
• major conspiracy and drug-related charges
• Commonwealth prosecutions for serious breaches of the Corporations Law
40
How many people are in a jury at the district courts?
District Court trials will often involve a jury of 12 people who are chosen by the court.
41
What does the jury do at the District Court?
The jury will decide whether the accused is guilty or innocent, based on the evidence presented in the trial.
42
What does the judge do in the District Court?
The judge will control proceedings and decide on questions of law. If the accused is found guilty by the jury, the judge will also determine the accused’s sentence
43
What types of matters does the District Court deal with?
The types of matters dealt with by the District Court include:
offences against the person such as manslaughter (but not murder), sexual or indecent assault, assault occasioning actual bodily harm and assault of police officers
property offences such as larceny, robbery, embezzlement, break and enter, and steal
drug offences such as supply, manufacture or production of a prohibited drug
driving offences such as dangerous or negligent driving causing death or serious bodily harm.
44
Why is the district court more expensive than the local court?
The District Court involves significantly more formality than the Local Court, and thus matters will usually take longer to be heard and result in greater cost to both the accused and the prosecution
45
Which court hears the most serious criminal cases?
Supreme Court
46
Where are criminal appeals from the Supreme Court heard?
Criminal appeals from the Supreme Court are heard in the Court of Criminal Appeal.
47
A similarity between the Supreme and District court?
District and Supreme Court trials will often involve a jury of 12 people who are chosen by the court.
48
Why are Supreme Court cases the most expensive?
Matters in the Supreme Court have the highest level of formality, with cost, time and consequences being much greater.
49
What is the Court of Criminal Appeal
The Court of Criminal Appeal is the appellate branch of criminal jurisdiction of the Supreme Court of New South Wales in relation to criminal cases. It is the state’s highest court for criminal matters.
50
The ............. can hear appeals from a person ............... by a ... Court or ...... Court judge.
The Court of Criminal Appeal can hear appeals from a person convicted or sentenced by a District Court or Supreme Court judge.
51
Where do criminal appeals have to be brought from other than the District or Supreme Court?
Criminal appeals can also be brought from the Land and Environment Court.
52
How many judges hear Appeals in the Court of Criminal Appeal?
Appeals in the Court of Criminal Appeal are usually heard by three Supreme Court judges
53
Is the number of judges always constant in the Court of Criminal Appeal?
Where significant legal issues are being considered this may be increased to five judges
54
What is the Land and Environment Court?
The Land and Environment Court is the court that looks after interpreting and enforcing environmental law in New South Wales
55
Is the Land and Environment Court important?
The Land and Environment Court has the same status as the Supreme Court
56
Who are Judges?
Judges are the judicial officers who preside over the District Court and the Supreme Court. Judges will make decisions about points of law and give instructions to the jury to make sure they understand the proceedings and the evidence presented to them.
57
Who hands the sentences and rulings?
Once the jury has reached a verdict, the judge will hand down sentences and rulings.
58
Does the judge only hand down sentences and rulings.
In some cases the judge will sit without a jury – in such cases the judge will determine the verdict, either guilt or innocence.
59
Who are magistrates?
Magistrates are the judicial officers who preside over hearings in the Local Court. Magistrates oversee proceedings and make a determination on the basis of the evidence presented. Once a magistrate has found an accused person guilty, they will also pass sentence.
60
Who is represented by a prosecutor?
In criminal trials, the state or ‘Crown’ is represented by a prosecutor who brings the action against the accused
61
What is the prosecutor's role?
It is the prosecutor’s role to prosecute the offender in a court of law and obtain an appropriate form of sanction or punishment for the offence.
62
Who are police prosecutors?
Police prosecutors are members of the NSW Police Force with specialised legal training to conduct prosecutions.
63
What cases are handled by police prosecutors?
Police prosecutors handle most summary cases in New South Wales like summary offences in the Local Court and Children’s Court.
64
Who are the Director of Public Prosecutions?
The DPP is an independent authority that prosecutes all serious offences on behalf of the New South Wales Government
65
What offences are prosecuted by the DPP?
For indictable offences and some summary offences, cases will be prosecuted by the NSW Office of the Director of Public Prosecutions (DPP). The DPP will also conduct some committal proceedings for indictable offences.
66
Roles of Barristers
Barristers have two main roles in court proceedings: to provide legal advice for the accused on the likely outcome of the case and to present that case in court.
67
Why is it more common to see barristers in the higher courts rather than solicitors?
This is due to the fact that barristers are specialists in their field and deal specifically with criminal law.
68
What does the solicitor do?
A solicitor may also represent the accused in court, or engage (employ) a barrister to represent the accused.
Represent the accused to see whether bail is granted
69
Who are public defenders?
Public defenders are barristers who appear in serious criminal matters for an accused who has been granted legal aid.
70
Why are public defenders given to an accused?
Where an accused cannot afford to pay for a barrister or solicitor, they may be granted access to a public defender.
71
Is it a necessity that the accused pleads guilty or not guilty?
After an accused is charged with an offence and the trial process proceeds, the law requires the accused to enter a plea of either guilty or not guilty.
72
What is the time difference between a guilty and a not guilty plea?
A guilty plea will be dealt with quickly, going straight to a sentencing hearing at a higher court.
If the accused pleads not guilty, the case will be defended in court.
73
What is the charge negotiation?
This is where the accused agrees with the prosecution to plead guilty to a particular charge or charges. It usually involves pleading guilty to a lesser charge in exchange for other higher charges being withdrawn, pleading guilty in exchange for a lesser sentence
74
What is the presumption of innocence?
Accused people are innocent until proven guilty. The prosecution must prove their guilt; the accused people do not need to prove their innocence.
75
What is the burden of proof?
The burden of proof means the responsibility for proving something. Because of the presumption of innocence, the burden of proof is on the prosecution—that is, the prosecution must prove that the accused person is guilty of committing the crime alleged.
76
What is the standard of proof?
The standard of proof means the weight or value given to the evidence (that is, how much proof is needed). An accused person must be proved guilty beyond reasonable doubt. If there is a reasonable doubt that the accused person committed the crime, he or she should be acquitted.
77
How is evidence presented in a criminal trial?
In a criminal trial, evidence is presented to the court through witnesses
78
Who are witnesses?
Witnesses are people who know something about the case and who give evidence in court about what they know.
79
Can police officers be witnesses?
The prosecution witnesses include the police officers who investigated the case and arrested the alleged offender.
80
Define crime scene
Any physical location in which a crime has occurred or is suspected of having occurred.
81
Define primary crime scene
The original location of a crime or accident
82
Define secondary crime scene
An alternate location where additional evidence may be found.
83
Define suspect
Person thought to be capable of committing a crime.
84
Define accomplice
Person associated with someone suspected of committing a crime
85
Define alibi
Statement of where a suspect was at the time of a crime.
86
Define testimonial evidence
Testimonial evidence includes oral or written statements given to police as well as court testimony by people who witnessed an event.
87
Define physical evidence
Physical evidence refers to any material items that would be present at the crime scene, on the victims, or found in a suspect’s possession.
88
Define trace evidence
Trace evidence refers to physical evidence that is found in small but measurable amounts, such as strands of hair, fibers, or skin cells.
89
Three types of evidence
Trace, physical and testimonial evidence
90
Role of police officers
POLICE OFFICERS are typically the first to arrive at a crime scene. They are responsible for securing the scene so no evidence is destroyed and detaining persons of interest in the crime.
91
What is the purpose of CSI UNIT documents?
The CSI UNIT documents the crime scene in detail and collects any physical evidence.
92
Role of detectives
DETECTIVES interview witnesses and consult with the CSI unit. They investigate the crime by following leads provided by witnesses and physical evidence.
93
Role of specialists
SPECIALISTS (forensic entomologists, anthropologists, or psychologists) may be called in if the evidence requires expert analysis
94
Role of medical examiner
To determine a preliminary cause of death.
95
What is the 1st step in collecting evidence?
The first step in investigating a crime scene is to interview the first officer at the scene or the victim to determine what allegedly happened, what crime took place, and how was the crime committed. This information may not be factual information but it will give the investigators a place to start.
96
What is the 2nd step in collecting evidence?
The second step in the investigation of a crime scene, which will help identify possible evidence, identify the point of entry and point of exit, and outline the general layout of the crime scene.
97
What is the 3rd step in collecting evidence?
The third step in the protocol involves creating a pictorial record of the scene as well as a rough sketch to demonstrate the layout of the crime scene and to identify the exact position of the deceased victim or other evidence within the crime scene.
98
What is the 4th step in collecting evidence?
This is the last step in the protocol. The crime scene technician will process the crime scene for evidence, both physical and testimonial evidence. It is the crime scene technicians responsibility to identify, evaluate and collect physical evidence from the crime scene for further analysis by a crime laboratory.
99
Role of drug chemistry
Determines the presence of controlled substances and the identification of marijuana
100
Role of trace chemistry
Identification and comparison of materials from fires, explosions, paints, and glass
101
What is microscopy
Microscopic identification and comparison of evidence, such as hairs, fibers, woods, soils, building materials, insulation and other materials.
102
Role of biology/DNA
Analysis of body fluids and dried stains such as blood, semen, and saliva.
103
What is toxicology
Tests body fluids and tissues to determine the presence of drugs and poisons.
104
What are Latent prints
Identification and comparison of fingerprints or other hidden impressions from sources like feet, shoes, ears, lips or the tread on vehicle tires.
105
What is ballistics?
Study of bullets and ammunition through the comparison of fired bullets, cartridges, guns, and gunpowder patterns on people and objects.
106
What are tool marks?
Examines marks left by tools on objects at a crime scene or on a victim, such as a hammer used to break a door or a screwdriver used to pick a lock.
107
Purpose of questioned documents in a crime
Examination of documents to compare handwriting, ink, paper, writing instruments, printers, and other characteristics that would help to identify its origin.
108
How are eyewitness accounts influenced?
People are likely to view the same scene in different ways depending on their positions, line of sight, familiarity with the area, and other factors that can interfere with a person’s ability to remember details.
109
What is the single greatest cause of wrongful convictions nationwide?
According to The Innocence Project (2008) "Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing."
110
Examples of witness factors
Age may play a role in the accuracy of an eyewitness’ statement or identification of a suspect. Studies have shown that when a lineup contains the actual culprit, both young children and elderly perform well, but when the lineup does not contain the culprit there is a higher rate of mistaken identifications.
The race of the witness may also play a role. The Cross Race Effect (CRE) is a phenomenon in which people are better at recognizing faces of their own race rather than those of other races.
The use of drugs can alter a person’s ability to recall the events of a crime even after they are no longer under the influence.
A person’s memory of an event can be influenced by other witnesses, investigators, and/or the media. Investigators use open-ended questioning and follow procedures for conducting line-ups to limit their influence on a witness’ memory of an event or identification of a suspect.
A crime that is extremely traumatic for an eyewitness may affect his/her recall of the event. For example, a witness confronted with a weapon tends to focus on the weapon rather than the perpetrator’s face.
Someone who is able to focus on a perpetrator's face for a minute or longer will tend to have a more accurate memory than someone who saw the person for only a few seconds.
Studies have shown that faces that are either highly attractive, highly unattractive, or distinctive are more likely to be accurately recognized. Simple disguises, such as hats or sunglasses, can interfere with accurate eyewitness identification. However, body piercings and tattoos increases the likelihood of an accurate identification.
The time of day in which the crime occurred as well as a person’s view of the scene may affect what a he/she is able to see. In addition, a person who is familiar with the area in which the crime took place, may have a better recall of the positions of the victims or suspects.
111
Role of jury
Before a court case begins, jurors are sworn in. During the trial, the role of a juror is to listen to the evidence presented to the court, apply the law as directed by the judge and come to a verdict as to the accused’s guilt or innocence. Jurors are permitted to make notes in order to refresh their memory of what has happened in court. They are not permitted to talk to anyone except for their fellow jurors, when they are all together, about the case. The jury must remain fair and open-minded when reaching their decision. The jury should not be influenced by the media or their own personal beliefs while deliberating a verdict.
112
How many criminal cases use trial by jury
Less than 1%
113
When is a verdict handed by a jury?
In a court case when there is a unanimous verdict it means that the jurors agree and hand down a verdict
114
Financial benefits of being a juror
Jurors are paid for their attendance on the jury and employers are required to give leave to their employees for jury duty
115
What is the judge's summing up?
The next stage is the judge’s ‘summing up’, which is where the judge summarises the issues, arguments and evidence in the case
116
Define giving directions in law
The Judge will then explain the relevant laws and how they relate to the case at hand
117
Define hung jury
A jury that is unable to reach a verdict is called a ‘hung jury’.
118
What happens when a hung jury occurs?
In these situations the case is dismissed and a retrial will be ordered. This means that the whole case will begin all over again.
119
Describe bail process
Arrest and charge, police grant bail, is the offence a show cause offence, does the accused succeed in showing cause, are there any bail concerns, are they any unacceptable risks, bail conditions set to address bail concerns.
120
Describe trial process
Arrest and charge, the accused enters a plea of not guilty and a bil hearing occurs, trial begins in district court, prosecution’s case, defence’s case, counsel for defence and prosecution give closing addresses, judge instructs jury and jury benign to deliberate. If guilty, judge sentences accused at a sentencing hearing
121
Matters heard by Federal Court
The Federal Court will hear criminal matters that are created by federal legislation. That is, legislation that applies to all States and Territories.
122
What is the High Court?
The High Court is the highest court in Australia. Any appeal that goes to the High Court will be on a question of law only and special permission is required.
