Yearly Flashcards
Define crime
A crime occurs when a person breaks a law and commits an offence against the community in general or against a particular victim.
Difference between NSW and Commonwealth Laws
Commonwealth Laws: Commonwealth laws apply in all states and territories.
NSW Laws: NSW Laws apply only in NSW
Examples of crime
Driving offences Larceny (stealing) Destroying or damaging property Possessing a prohibited drug Common assault.
To what extent does a crime need to be proved
The prosecutor must prove to the magistrate each element of the offence ‘beyond a reasonable doubt’.
Define elements of the offence
The prohibited conduct and the mental element of a guilty mind or intention.
Elements of crime involving ‘destroy or damage property’
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.
Define defence
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.
Examples of legal defence
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.
Define mens rea
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.
Define actus reus
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.
To be considered criminal behaviour, what must occur?
To constitute criminal behaviour, the actus reus and the mens rea must occur simultaneously
Do all crimes have the same degrees of intent?
Different crimes require different degrees of intent.
Provide examples of ‘Do all crimes have the same degrees of intent?’
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.
Can bail be given for every offence?
No,
Who can give bail?
Bail can be granted by the police or a judge
Who does the Department of Public Prosecutions represent?
The DDP appears for the State of NSW
What happens if the accused is guilty?
If the accused is found guilty, the judge conducts a sentencing hearing.
What punishments can be handed?
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.
What influences the actual term of imprisonment?
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.
Define mitigating factors
Mitigating Factors: Factors that make the case sentence less severe
Define aggravating factors
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…
What cases does the local court deal with?
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
Local court matters are trialled by who?
There is no jury in the Local Court. Local Court matters are tried solely in front of a magistrate
What does the senior prosecutor do in the Local Court?
A senior prosecutor reviews the evidence and confirms which charges will proceed
What happens after the charges are confirmed?
A mandatory case conference must then occur between prosecution and defence.
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.
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.
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.
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.
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.
Define closed court
The general public is prohibited from viewing the proceedings.
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.
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.
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.
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.
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.
Define appellate jurisdiction
It can hear appeals of decisions made by lower courts such as the Local Court and the Children’s Court.
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).
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
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.
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.
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
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.
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
Which court hears the most serious criminal cases?
Supreme Court
Where are criminal appeals from the Supreme Court heard?
Criminal appeals from the Supreme Court are heard in the Court of Criminal Appeal.
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.
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.
