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Law Notes > LAWS1021 - Criminal Law - Crime and the Criminal Process Notes

Crime And The Criminal Process Notes

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Table of Contents

Criminalisation 2

Defining Crime 2

Justifications for Criminal Law: Harm, Risks, and Morality 5

Case Study: Drug Policy 7

Colonialism and Indigenous People 7

Deaths in Custody 8

Deaths in Custody Case Studies 8

Normative Theories of Criminalisation 9

Case Study: Consorting 11

The Criminal Process 12

Two Tiers of Justice 12

Expansion of Summary Justice 14

Technocratic Justice 15

Models of the Criminal Process 16

The Ubiquity of Discretion 16

The Adversary System and the (In)visibility of the Pre-trial Process 17

Miscarriages of Justice 17

Crown Appeals and the Double Jeopardy Principle 17

Case Study: Boraville 17

Process as Punishment 17

Bail Reform 18

Application of the Bail Act 2013 20

Police Powers 20

Police and the Criminal Process 20

Admissibility of Evidence: s138 of Evidence Act 1995 (NSW) 21

Power of Arrest: s99 Law Enforcement (Powers and Responsibilities) Act 2002 [“LEPRA”] 21

Powers to stop and Search 24

Exercise of Reasonable Force 31

Components of Criminal Offences 33

Constituting Legal Personhood 33

Actus Reus 34

Attempt 35

Mens Rea 37

Burden of Proof 38

Strict Liability 39

Interpretation of Statutory Offences - He Kaw The v The Queen 40

Drugs 41

Drugs Offences: NSW Law 41

Public Order 45

Regulating Public Space 45

Offensiveness 46

Racial Vilification 48

Move on Powers 48

Crowd Control and Protest 48

Criminalisation

Defining Crime

  • What is a crime? (Crimes Act 1900 (NSW); Summary Offences Act 1988 (NSW))

    • Nature and characteristics of crime

    • What kinds of acts are caught up in criminal law?

    • Mala in se “wrong in itself”

      • Murder

      • Theft

      • Rape

      • Assault

    • Mala Prohibita “wrong because its prohibited”

      • Speeding

      • Public order

  • Introduction to criminalisation

    • Issue of criminalisation interrogates the principle, motivation and forces behind decisions to characterise certain forms of behaviour as criminal

    • Influential stream of normative scholarship

    • Overcriminalisation

      • Notion of common-sense

      • Penal popularism

      • Rather than timeless, historically specific

      • Issue of language and metaphor in crime discussions Andres Ashworth – “is the criminal law a lost cause?”

        • Examine various approaches to providing normative accounts

    • Normative theory of criminal law

      • A theory, principle or set of criteria which determine appropriate limits to criminal law

      • Specification of what behaviour are appropriately criminalised

    • Historical

      • Historical context

      • 18th century England – peasantry and common land taken as private property

      • ATSI people colonial and post-colonial criminal law

    • Decisions to criminalise

      • Harm

      • Risk

      • Morality

      • Offensiveness

      • Social reaction

      • Moral panic

      • Social class

  • Criminalisation and penalty – contextualising criminal law

    • Nicola Lacey in The Oxford Handbook of Criminology

      • Criminalisation constitutes an appropriate conceptual framework which to gather together the constellation of social practices which for subject matter of criminal law

      • Escaping the notion of crimes as given

      • Criminalisation captures the dynamic nature of the field as a set of interlocking practices in which the moments of defining and responding to crime can rarely be completely distinguished

    • A screenshot of a social media post Description automatically generatedNicola Lacey, In Search of Criminal Responsibility: Ideas, Interests and Institutions

      • Criminalisation does not just require an analysis of the desirable justifications and elements that should structure existing, new or amended substantive offences

      • Involves examination of police powers

        • Entwined with substantiative offences

      • Police and prosecutors have developed their own versions of what enforceable law is

      • Exercise discretions

      • Descriptive vs normative vs context

        • D Describes what the crime is

        • NScoping what the harm is

        • C Who is being charged and tried

    • Stanley Cohen – Against Criminology

      • “How do certain elements of social life come into orbit of the criminal law?”

      • Two opposing tendencies – how the category of crime becomes accepted and how criminalisation becomes questioned and even reversed

      • New criminalisation the virtual disappearance of decriminalisation from the agenda, and along with it any attempt to take a critical stance towards the concept of crime

      • Classic jurisprudence dichotomy

        • Shopping list metaphor

      • Criminalisation is a particular reaction to a defined social problem

      • Under what conditions do certain people feel state intervention is justified?

        • Social class?

      • What factors affect the process of criminalisation?

        • Social class?

    • Morris and Hawkins – The Honest Politicians Guide to Crime Control

      • Concerns overreach of the criminal law

      • Pragmatic issues concerning the cost of criminalisation in areas like drugs and prostitution

      • Overcriminalisation was common

      • Overreaching beyond the purpose of protecting persons and property by pursuing moralistic excrescences

    • Husak – overcriminalisation: the limits of the criminal law

      • He calls it overcriminalisation

      • The extraordinary rise in the size and scope of the criminal law

    • Nils Christies

      • “Crime does not exist. It is created. First there are acts. Then follows a long process that gives meaning to those acts”

  • Common-sense: the case of murder

    • The common-sense approach to what a crime is, is that everyone knows a crime when they see one

    • The simplicity of this theory is deceptive

    • Law and order common sense

      • Hoog and Brown – rethinking law and order

        • Identify key assumptions and themes

          • Soaring crime rates

          • It is worse than ever – law and order nostalgia

          • The future is New York or la

          • The criminal justice system is soft on crime and does not protect citizens

          • The solution is more police with more powers

          • We need tougher penalties victims should be able to get revenge through he courts

  • Social class and criminalisation

    • Does social class influence which activities will be criminalised?

      • Respectable people vs criminal class

      • Alan Bond? James Hardie Directors? HSBS?

        • Alan Bond – one day for every one million where as people who take a 1$ loaf of bread get years

        • James Hardie – asbestos, no one has been prosecuted

        • HSBC – millions of dollars for the drug cartel

    • Russel Hogg – populism, law and order and the crimes of the 1%

      • Two laws: crimes against the market vs crime of the market

      • Crime of the GFC

    • Misconduct in the banking, superannuation and financial services industry

    • Robo-debt scandal

      • Who cause greater harm

  • Penal Populism

    • Pratt – sorcerer’s apprentice revised – toasting the marshmallow

      • Analogy – when the apprentice gets the broomsticks to do the work and he gets too many and he can’t control is because it becomes overrun with power

      • Is compared to politicians who make too many promises and lose control of their power

Justifications for Criminal Law: Harm, Risks, and Morality

  • HARM

    • Criminal action is harmful

    • Therefore, only harmful acts should be criminal?

    • Harm has immediate plausibility as a justification for criminalising a given form of behaviour

    • A common-sense ring to it

    • But what does it mean to cause harm?

    • Should all form of harmful behaviour be criminalised?

    • JS Mill – “ON LIBERTY” - Harm principle

      • Limits the legitimate scope of the criminal law

      • You can do whatever you like, as long as it doesn’t harm others – criminal law is to prevent harm to others

      • Considers the effect on other people and community

      • Criminal law should not encroach on your autonomy – as long as you are not causing harm to others

      • The government should not be able to tell you what to do

      • Refutes:

        • Feinberg (1987) resists Mills harm principle as “it is always a good reason to support of penal legislation that it would be effective in preventing harm to persons other than the actor… and there is no means that is equally effective at no greater cost to other values”

          • Harm is a setback of interests

        • Duff (2007) this leaves open the possibility that there are also other good reasons – such as the prevention of a serious offence that does not amount to harm or of paternally motivated coercive infringements of others’ freedom that invade autonomy even if they are not on balance harmful, or even of free floating evils that neither harm nor offend.

          • All versions of harm face the same problem – the problem, to put it crudely, that they can avoid the defect of under-inclusiveness

          • The harm principle ceases to set sustainable independent constraints on the scope of the criminal law

        • Harcourt (1999) the harm principle is effectively collapsing under the weight of its own success. Claims of harm have become pervasive that the harm principle has become meaningless. Too many exceptions.

  • RISK

    • Risk and risk preventions have become major preoccupations of individuals, government, media, and the state

    • We have become a risk society (Beck, 1992)

    • Proliferation of notions and mentalities of risk and the ubiquity of risk instruments and risk management preventative justice

      • This becomes an issue for the rule of law and presumption of innocence

    • Currently criminal law attempts to clean up the mess – what of it stopped the mess before it happens…

    • For the harm principle, an act of preparation is not causing harm to anybody YET so within that theory, it cannot be charged

    • Ashworth, Sedner, Tomlin – Prevention and the limits of criminal law

      • Redress the lack of debate over the limits of preventative justice for, “the challenges posed by preventative justice are not to be found of the fringes of legal or political theory but rather go to the very core of the role of the state and the proper concretion of the citizen”

      • Various manifestation of the encroachment of preventative justice, for example in pretrial detention/ bail:

        • Police power that remove those intoxicated from public spaces

        • Extensions of criminal liability to preparatory acts and to new subjects such as bikie gangs or criminal organisations

        • Preventative detention of specific categories of offenders whose sentence has expired ie sex offenders

    • Carvalho (2017) “preventative turn” – which links to a broader socio-economic and political change and to the rise of insecurity

      • Social integration characteristic of the welfare state starts to unravel towards the end of the 20th century as “society” disassociates into a variety of ethical and cultural communities

      • Heightened sensitivities because we are more aware of it with the rise of media

    • O’Malley (2013) notes the way risk has been cantered to the development of driving offences

      • Preventative justice is focused on the risk of harm

      • Deterrence has become a key aim of law

    • Gunther (2013) good/bad citizens dichotomy that lies behind appeals to both majoritian public interest and to victim rights

      • “the Majoritian claim to obtain protection of their fundamental rights is then balanced against the human rights of the minority of offenders… a zero-sum game: more legal protection of the criminal offender means less legal protection of the victim”

      • Dichotomy between the good and the bad citizen – it’s okay/justified for the good (majority) to infringe on the bad’s (minority) rights through criminal law for public interest – but how is this not just encroaching on the minorities right?

      • Ashworth (2002) When you think that it is okay to encroach on the minority’s human rights, consider if it was someone you know whose rights are being encroached? This is a thought experiment, but what is the comment on society that this is the measure that we need to take to feel any empathy for the minority.

  • MORALITY: The Hart/Devlin debate

    • Immoral conduct: should the criminal law prohibit certain forms of conduct simply because they are immoral?

    • Yes

      • Immorality supplies a sufficient reason for criminalisation

      • Immorality is a necessary condition for criminalisation

    • Devlin (1965) certain forms of immoral conduct undermine the shared beliefs essential for social cohesion

      • Harm to the social order rather than the individual

      • Criminal law is based on moral principles, it functions to simply enforce a moral principle

    • Hart (1963) rejected Devlin’s argument

      • Regarded the claim that society depended on shared moral beliefs as not proved

      • Shared moral beliefs changed from time to time

      • Therefore, homosexuality could simply be a case of change rather than something that could lead to the total disintegration of the moral code and hence society

      • We need the government to protect us from ourselves – the upper class white people can make their own decisions but the other people are unable to

      • Its justified to be concerned about the “other” people

    • QLD Criminal Code Chpt.22 Offences against morality

      • Bestiality, child abuse, prostitution

      • These are obvious crimes that would cause harm to others

Case Study: Drug Policy

  • Drugs and principles of criminalisation

    • The concept of harm is extremely difficult to pin down

    • For instance, those who take drugs regard the experience as pleasurable rather than harmful

    • If the drugs are in your system then it doesn’t count

    • The police cannot charge you if the drugs are in your system unless you are driving a ca, they aren’t allowed to test you walking in the street

  • Mugford (1992) examines some of the favoured explanations for criminalisation of drugs in the literature

    • The banning of drug taking – economic effect

      • Profits made by sellers and losses sustained by employers of users

  • Why should drugs not be legalised?

Colonialism and Indigenous People

  • Illustrate that the consequences of the foundational dispossession and expropriation of the original inhabitants are continuing and profound

  • Central contemporary and unresolved issue

  • In colonial legal theory:

    • NSW was a settled colony rather than once which was acquired by conquest

    • Depended on the doctrine of terra nulius – the land of no one

    • Terra nulius was overthrown by Mabo

  • Historical descriptions of ATSI people

    • ALRC past descriptions referred to ATSI people as aborigines

    • They are not amending these documents because it is a vast reflection of society’s attitudes at the time

  • Justifying frontier violence

    • Reynolds (1987) settlers developed euphemisms like “disperse” which was the act of shooting at “blacks” for that mere purpose

      • Boasting about exports among the blacks became a characteristic of frontier society form the yearly years of the nineteenth century

      • Many frontiersmen found pleasure in the pursuit of the aborigines

      • ATSI people are sub-human

      • Ideological justifications for frontier violence

  • Frontier wars?: Aboriginal resistance

    • Gapps (2018) compelling arguments to frame conflicts in Sydney as resistance warfare by Aboriginal people

      • The early colony was highly militarised and characterised, inter alia, by well organise d, ongoing warfare where counter insurgency strategies were mobilised against indigenous guerrilla warfare (Grewcock)

      • Expresses that the term “frontier wars” is inappropriate – because frontier doesn’t express that it was Aboriginal land

    • Grewcock (2018) military offences and massacres

      • Australian historians have identified overlapping forms of foundational violence

    • Ryan (2012) mapping the massacres

  • The exercise of sovereignty, jurisdiction and space

    • Douglas and Finnane (2012) argue the process of establishing jurisdiction and sovereignty is one that has continued to the present day, contested by ATSI resistance and hindered by the practical exigencies of exercising colonial and post-colonial power in areas remote from large urban centres

Deaths in Custody

  • Royal Commission in Aboriginal Deaths in Custody (1989)

    • Malcolm Charlies Smith, an aboriginal prisoner at MAU of the MRP at Long Bay went into a toilet cubicle where half a second later the handle of a artist paint brush was shoved through his left eye

    • Why did he die?

      • He was happy and healthy at 11

      • Truant from a music school made unattractive by racial prejudice and irrelevance to his life

      • He was taken from his family and cut off entirely until he was 19

      • This was too late for him to start a normal life

      • He experienced the law as a place where he was given no rights, representation or consideration

    • Bringing them Home (1997)

      • Comprehensive understanding of the vast injustices toward Aboriginal people

    • Egger and Butler (2000) a study on the long-term factors associated with the removal from parents amongst ATSI people in NSW

      • it was twice as likely for ATSI prisoners removed from their families to be incarcerated on more than 5 occasions

      • twice times as likely to have attempted suicide

      • three times as likely to have been subject to child sexual assault

    • Kruger v Commonwealth (1997) High Court dismissed a claim challenging the constitutional validity of the Aboriginals Ordinance 1918 which provided the legal basis for the removal of children from Indigenous Communities and families

    • Foley (1999) aboriginal activist provides a Koori perspective on the colonisation process and the question of genocide

      • Connotations to the Holocaust in comparison to Aboriginal land being stolen and the treatment of Aborginal people

    • Hogg (2001) the hugely disproportionate ATSI imprisonment rates are relatively recent, dating the 1980. This period coincides with the upsurge in imprisonment rates in the USA since the 1970s, which is the rise of mass incarceration.

Deaths in Custody Case Studies

  • Inquest into the death of Ms Dhu (2014)

    • 22 yr old ATSI female who died tragically at Hedland Health Campus while she was in custody

    • Focus: quality of supervision, treatment and care while in custody

    • Suffered a catastrophic deterioration in her health whilst in custody

    • Reason for death: staphylococcal infection

    • The quality of the treatment received by her was illustrative of the institutional racism

    • It would be naïve to deny the existence of societal patterns that lead to assumptions being formed about ATSI peoples

    • There is CCTV footage of her being dragged form her cell without a stretcher

    • Whittaker “dragged like a dead kangaroo” The Guardian (2018)

      • In her final moments there is footage of Ms Dhu being dragged down the corridor to the hospital like a dead kangaroo

  • Inquest into the death of Rebecca Maher (2019)

    • Detained by police in Maitland as an intoxicated person, however she had consumed many drugs but not alcohol

    • Cause of death: mixed drug toxicity

    • She was not searched or given the opportunity to contact a responsible person

    • The custody manager on duty failed to abide by the guidelines in place for regular checks of the people in custody

Normative Theories of Criminalisation

  • What is crime?

    • No workable definition of crime

  • Distinguishing criminal offences by reference to conduct

  • Ashworth’s ‘historical contingency thesis’

    • Particularly pessimistic

    • Theories of crime are inadequate

    • Criminalisation is based off who is in parliament

    • Survey of all statutes pass in 1997

      • 8000 offences in criminal law in the UK

      • All created in the past

      • No content based workable definition of what is crime

      • No consistent application of criteria but dependent on successive governments and successful pressure groups

      • What is criminalised is historically contingent

      • Found:

        • Bulk of new offences characterised by 3 key features:

          • Strict liability offences (He Kaw The)

          • Created omission liability (common law rarely criminalises a failure to act)

          • Reverse burdens (placed on defendant to prove they did not do something)

        • Not police who regulate but other regulatory civil bodies

        • Reference: demoralisation of crime through technocratic justice

    • Lord Williams of Mostyn’s principle of criminalisation

      • Proposed offence must be absolutely necessary

      • It must proscribe serious behaviour

      • Existing regulations and remedies are inadequate

      • Criminal law is a last resort

      • Criminal law must be enforceable in practice

      • Legally sound

      • Punishment proportionates to the crime

    • Is the criminal law a lost cause?

      • Yes

      • Try to make a normative theory of criminal law

      • Normative theory set of principles that should distinguish a criminal offence

  • Ashworth: Is criminal law a lost cause (2000)

    • 4 core principles of criminalisation

      • Substantial wrongdoing

        • Deterrence of serious importance

      • Equal treatment and proportionality

        • Implication: enforcement peoples should not be subjected to

        • Should not reflect historical levels of respect

      • Protections for accused persons

        • Minimum protections should be intrinsic to prosecution

      • Maximum and affective sentences should be proportionate to seriousness of wrongdoing

        • EG Crimes Act s126 cow stealing 14 years max

        • Thorough reassessment of sentence levels

  • Horder: Ashworth’s Principles of Criminal Law (2019)

    • Criminal law values

      • Intrinsic values personal and interpersonal good

        • Recognise and support people’s life and value

        • Shaping peoples conduct for the good of humanity

      • Life in common the importance of public goods

        • Prevent public wrong not just individual harms

      • Protecting “fragile” public goods

        • Supporting life’s in common where the goods are

        • Threatened by overuse

        • Safe public places, unpolluted rivers, maintenance of public health

    • Criminal law “fabric”

      • List of restraining principles – limit scope of criminal law

        • Minimalisation

          • Measure of last resort

          • No bill of rights

        • Maximum certainty

        • Proportionality

        • Fault element of crime

  • Duff: Answering for crime

    • “relational” theory of criminal responsibility

    • Citizen as “a rational moral agent”

      • Conscious and cohesive citizenry that does not exclude the population

    • Criminal law operates on behalf of the citizenry

    • A “communicative” theory

      • Being treated as a citizen is not just a matter of being held criminally responsible it is being included and taking part in the political life of the community and benefitting from its welfare

    • Implications for those denied the full benefits of citizenship and full participation in the polity?

      • Can you call a citizen to account if they are not treated equally?

    • How might such questions be answered in relation to Australia?

      • Exclusion

      • Discrimination

      • Is the law legitimate?

        • Pathways to justice – an inquiry into the incarceration rate of ATSI peoples

        • If they don’t receive the benefits, how can they be punished?

  • Husak: Overcriminalisation, the limits of criminal law (2008)

    • 7 principle (constraints) on criminalisation

      • Internal constraints:

        • Non-trivial harm or evil

        • Wrongfulness

        • Desert

          • Must deserve the punishment

        • Burden of proof

      • External constraints:

        • State must have a substantial interest in law’s purported objective

        • Law must directly advance that interest

        • Statute to be no more extensive than necessary

    • 4 principles to limit authority of State to punish offences of risk prevention

      • Substantial risk requirement

        • Many crimes aimed at risk prevention are over inclusive and unjustified

        • EG no harm in drug prevention, associating with a member of a terrorist organisation

      • Prevention requirement

        • Ashworth’s is the law a lost cause – substantial wrongdoing for deterrence

      • Consummate harm requirement

        • Harm principle

      • Culpability requirement

        • Over criminalisation

  • Husak: A “public wrong” which “violates a polity’s civil order” (2018)

    • Engages with normative arguments about overcriminalisation

    • Need to develop a more principled criminal law rather than just reducing scope

      • Develop a principle

    • Criminal conduct must be seen as a public rather than private matter

      • Justifying calling the defendant to public account

      • We shouldn’t need the law to tell us its wrong

    • Conduct must be wrongful in the context of the polity’s civil order, thus justifying calling the wrongdoer to public account

    • Mala in sa conduct can be defined as a public wrong external to the law (confronts a wider social norm)

    • Mala prohibita (Wrong wholly or partly because it is prohibited) must first justify the regulation as serving the common good

      • Problematic?

        • Should only be wrong in itself

        • The law shouldn’t tell someone that something is wrong

    • Only once the basic for the public wrong is identified should criminalisation be considered as possible (last resort?) response to conduct

  • Farmer: an “institutional theory” (2016)

    • Argues for going beyond normative approaches that focus on the justification for punishment – need to focus on the “norms that have become institutionalised in particular forms, agencies and rules of law”

    • Arguments about justification have rarely fallen into neat theoretical categories – despite a liberal sensibility, criminal law continually expanded since late C18

      • Stab at the excessive lists

    • Criminal law increasingly an instrument for the state to shape civil order – few principles limits, provided it could be justified as effective

  • Brown: contextual v normative approaches (2013)

    • Difference between two approaches

    • Engages with Duff, whose focus is on how processes of criminalisation should operate, to identify what at the heart of the contextual project

    • Criminal law unavoidably normative in character – normative debates are thus central to context

      • Can’t ignore police powers, need to think about how the law is administered

    • Normative theory likely to have only limited purchase “where criminal law is integral to wider moral and cultural politics”

  • McNamara

    • Aim to provide a better empirical and historical foundation to debates over normative limits to criminal law making

Case Study: Consorting

  • Pre-crime association?

  • Historically

    • Vagrancy Act 1835 (NSW)

      • Idle and disorderly person

      • Rogues and vagabonds

      • Incorrigible rogues

      • Note: being in the company of thieves or poor people – anyone poor is likely to commit a crime

    • 1930 razor gangs

      • Offence to habitually associate with reputed criminal, prostitutes or people convicted of ‘having no visible lawful means of support’

    • Offence:

      • To be in the company of thieves or persons with no visible means of support

      • Statutory presumption that any (non-aboriginal) person found “lodging or wandering in company” with an Aboriginal person was vagrant

  • Contemporary

    • Summary offences Act

      • Section 22 (repealed in 1979)

        • A person who is reasonably suspected by a member of the police force of having no visible means of support or insufficient lawful means of support is guilty of an offence

          • Johanson v Dixon

          • Jan v Fingleton

          • Koncz v Pope

      • Crimes Act s546A (repealed SOA – repealed in 2012)

        • Any person who habitually consorts with person who have been convicted of indictable offences, if he or she knows that the persons have been convicted of indictable offences

      • Crimes Amendment (Consorting and Organised Crime) Act 2012 (NSW)

        • Section 93W definitions

          • Habitually consort consort in person or by any other means, including by electronic or other form of communication

          • Official warning a warning given by a police officer

          • Convicted offender means a person who have been convicted of an indictable offence

        • Section 93X offence

          • A person who habitually consorts with convicted offender and after being given an official warning

        • Section 93Y defence

          • Family members

          • Lawful employment or the lawful operation of business

          • In the course of training or education

          • In the course of the provision of a health service or welfare service

          • In the course of the provision of legal advice

          • In the lawful custody or in the course of complying with a court order

          • In the course of complying with parole authority

          • In the course of providing emergency accommodation

    • Foster v DPP

      • Essence of consorting is seeking of something in the nature of companionship not mere chance encounter

    • Hanson v Dixon

      • Must be more than a mere chance encounter

    • RIDICULOUSNESS OF THE LAW

      • I’m not sure that this particular measure is going to have any real effectiveness. Of these people who are shooting and killing each other cant obey the laws that say you can’t shoot and kill each other, I don’t think they are going to obey a law that says you can’t have a beer with each other or can’t go on a motorcycle ride with each other.- Phillip Boulton SC (2009)

The Criminal Process

Two Tiers of Justice

  • Munday v Gill (1930) expresses the great distinction in history, in substance and in present practice between summary proceedings and trial upon indictment

    • The defendant is given a sufficient opportunity to appear which he may exercise or not at his choice, and, whether he avails himself or not of his right to be present, he is dealt with by those assigned to keep the peace, who judge both the law and fact.

    • An institution designed professedly for the greater ease of the subject, by doing him speedy justice (Blackstone)

  • The structure of the criminal courts system

    • Lower courts higher courts

  • Magistrates and local courts

    • Judges have a long history of considerable significance as agents of government and state

    • Castles (1982) An Australian Legal History

      • Describes magistrates as “ruler of the country”

    • Connel and Irving (1980) magistrates provided a vital articulation between pastoralists and the state

  • The assembly line court

    • So help me god (1993) key feature include high volume of cases, the lower socio-economic status of a high proportion of the defendants and a disproportionate number of indigenous offenders

    • Anleu and Mack (2017) preforming judicial authority in the lower courts

      • Very high volume of cases – 94% of all criminal lodgements

  • McBarnet (1981) Two Tiers of Justice –> an educated, old white man laughing at the lower class for their misfortune. With all due respect, McBarnet is an educated Caucasian male with an opinion on the lower class which is the cause of his amusement. Irrelevant of the slapstick nature of media antics regarding the local court, many offences were committed from necessity and often results in removal of the vehicle that drives the necessity, to these people, this is not trivial. Unless trivial in their objective opinion is the inability to provide for their family, or to run their business, or the return to prison to be abused for not co-operating because you are unable to due to an anaphylactic attack to the dairy that was promised to not be in the meal. The law teaches us that words are objective.

    • “The law has created two tiers of justice, one which is geared in its ideology and generality at least to the structure of legality, and one which, quite simply, is not”

      • Local court – due process is ruled out on two grounds; the ideology of triviality and legal relevance

      • High court

    • The separation of powers provided the structural background for democratic ideology to operate despite its internal contradictions

    • “The principles of one strand have remained as the dominant image of law and as the rhetoric of justice, but the existence of the other allows the legal system to deal with the vast majority of offenders in a way which flouts the principles of justice legally”

    • Due process was and is ruled out of the lower courts as unnecessary on two grounds

      • First, both the offences and the penalties are two trivial

      • Second, the issues and processes are such that the niceties of law and lawyers are irrelevant

    • The ideology of triviality

      • Appears to be trivial – a perception

        • But it’s not to the people, to prosecute

        • The public think its trivial – not of interest to the public

        • Not trivial in the sense of young people need to be scared

      • Do magistrates think what they do is trivial

        • “you fool”, “ill send you to jail”

      • They deal with “minor offences”, ‘everyday offences’, ‘the most ordinary of cases’

      • This dominant image is shared by the press

      • The proceedings themselves are of no interest, except perhaps to provide this week’s funny stories for the diary column

      • “mornings batch of defendants” like an undercooked muffin put back into the oven to cook through a little longer

      • To go to the court as a member if the public is to become an object of curiosity; to sit their taking notes is to invite paroxysms of paranoia false, there were friends there supporting their mate, and work colleagues hoping to see their boss back in the company van

      • “police offer sent by the magistrate to ask what I was doing there” as if he is shocked that anyone would think he is one of the undercooked muffins shuffling along the assembly line – I was asked what my case number was, and I was not offended in the slightest

      • “it is the relative trivialities of the penalties that provides the crucial legitimations in law for the lack of due process in summary justice”

      • Penalties

        • “offences and penalties may seem trivial from the outside but far from trivial from the perspective of the accused”

        • “they are too trivial to interest the public but not too trivial for the state to prosecute in the name of the public”

    • Legal Relevance

  • Staging magistrate’s justice: dramaturgical analyses

    • “status degradation ceremonies” (Garfinkel, 1965)

    • Carlen (1976) Magistrates justice – transformation of the ritual display of justice into the socio-legal technology of coercion is the first step in the manufacture and celebration of all magistrates

      • Space:

        • The spacing and placing of people in public occassions is strategic to their ability effectively to participate in them

        • Spacing arrangement determine the mode and range of verbal interaction and emphasise the relative statuses of the people present

        • Social space is preformed and sistributed by fixtures and fittings which compromise its definitive physical dimensions

        • In courts, not even the implicit rules of spacing are elft to chance

        • Spatial dominance is achieved by structural elevation

        • Rails around defendant are symbolic of captive state

        • The placing and spacing of people within the courtroom is a further cause of the series of pardons and balcnk stares which characterise and punctuate magistrates courts

      • Time:

        • Timing of events is monopolised by police

        • Time saving is an organisational value

      • Presentations:

        • Organisational traffic is facilitated by sign posting, information desks, printed rubrics and organisational maps

        • It’s a good thing people are scared because it makes them tell the truth

        • His entrance to the to the courtroom is both staged and heralded

      • Beyond absurdity:

        • Like the theatre, is an arena where both social values and the devices employed to choose between them can be studied

Expansion of Summary Justice

  • Criminal Procedures Amendment (indictable Offences) Act 1995 now CH5 of time Criminal Procedure Act 1986

    • Established a new scheme in NSW

      • Magistrates can now deal with these offences rather than the district court:

        • Malicious wounding

        • Indecent assault of a child under 10

        • Aggravated indecent assault

        • Break enter and steal

        • Armed with intent to commit felony

        • Obtaining money by deception

        • Culpable/dangerous driving

        • Statutory riot

        • Escaping from lawful custody

    • Indictable offences fall into 3 groups:

      • Indictable offences not trailable summarily

      • Table 1 indictable offences, to be dealt with summarily unless either the prosecuting authority or the accused elects to have the offences dealt with on indictment

      • Table 2 offences to be dealt with summarily by a Local Court unless the prosecuting authority elects to have them dealt with on indictment – the accused has no choice (less serious offences against the person

        • Common assault

        • Stalking and intimidation

        • Wide rnage of property offences

        • Housebreaking

  • S260(1) Criminal Procedure Act 1986

    • Matter will be dealt with summarily unless the accused or the prosecutor elects to have the offence dealt with on indictment

  • S267(3) Criminal Procedure Act 1986

    • The maximum term of imprisonment that the local court may impose for table 1 offence is two years or the maximum term of imprisonment outlined by the law

  • S267(2) Criminal Procedure Act 1986

    • The maximum fine that the local court can impose for an offence is 100 units

  • S268 Criminal Procedure Act 1986

    • Maximum penalties for table 2 offences in 2 years

Technocratic Justice

  • The drive for efficiency

    • Variety of pressures and forces for change

    • Diversity reflects the tensions and contradictory values and practices various agents in the cCJS seek to secure

  • Due process and the technocratic and administrative rationalism of justice

    • O’Malley (1984) technocratic justice in Australia

      • The extent to which technocratic control and administrative rationalism take effect, they combine to denude the criminal law of its moral content

      • The act of criminal prosecution brcomes merely an act of administrative regulation

      • To empty a practice of its political character is also to erode its moral content conflict between due process and the technocratic and administrative rationalism of justice is a conflict between entirely different ideological conceptions of crime, justice and guilt

      • Removes criminal law from the process of determining right and wrong and puts it in the category of law and order which is mere behavioural regulation

    • Hogg (1989) criminal justice and social control: contemporary developments in Australia

      • The socialisation of crime: created a whole range of illegalities and opportunities for illegal innovation

      • The power of new information technologies is as great in the hands of offenders and potential offenders as it is in the hands of agents of control

      • Consequences are predictable

      • Less concern with discrete crimes and more with optimal economic performance

  • On the spot justice: infringement notices, fines and simulated governance

    • Fox (1995) study of AIC trends and issues in crime and criminal justice

      • Not just parking, expanded into social regulation

      • On the spot fines are becoming available for more summary offences

    • NSWLRC (2012)

      • People are more likely to be in touch with the criminal justice system through a penalty notice rather than a court

    • O’Malley (2009) fines, risks and damages: money sanctions and justice in control societies

    • O’Malley (2010) simulated justice: risk, money, telemetric policing

    • Quilter and Hogg (2018) the hidden punitiveness of fines

      • Fines are the ideal penalty, quick, efficient, flexible, effective and cheap form of punishment

      • Easily understood

      • Readily adjusted to reflect the seriousness of the crime

      • Unfairness, hidden and punitive consequences of fines for a sizeable minority

Models of the Criminal Process

  • Models of the criminal process: crime control and due process

    • Packer (1986) the limits of the criminal sanction

      • Crime control model

        • value system is based on the proposition that the repression of criminal conduct is by far the most important function to be performed by the criminal process

        • Failure of law enforcement to bring criminal conduct under tight control is viewed as leading to the breakdown of public order

        • If laws are unenforced then legal disregard is developed

        • To operate successfully this model must produce a high rate of apprehension and conviction, and must do so in a context where the magnitudes being dealt with are very large and the resources for dealing with them are very limited

        • The presumption of guilt is what makes this model deal efficiently with large numbers

        • Resembles an assembly line

      • Due process model

        • Resembles an obstacle course – each of its successive stages is designed to present formidable impediments to carrying the accused any further along the process

        • Informal, non-adjudicative fact-finding that stresses the possibility of error

        • Aims to protect the factually innocent as it is to protect the factually guilty- like quality control

The Ubiquity of Discretion

  • Goodrich (1986) Reading the law

    • Pervasive yet little acknowledged role of discretion within the decision-making process throughout legal order and not simply within the process of explicit adjudication

    • Politics of interpretation: the latitude technically available in virtually all areas of law discourse allowing for judicial choice in the application of legal norms

    • “it would be extrmemly naïve or ill-intentioned to suppose thay one legal facts determine legal outcomes”

  • Regulating discretion

    • Davis (1969) argued that the hidden nature or low visibility of the exercise of many discretions should be brought to the surface and more carefully scrutinised and regulated

    • Sallman and Willis (1984) discretion is inevitable and highly desirable but they need to ensure that discretion is exercised in an open and fair manner and according to published or publicly accessible guidelines

      • Following; Fairness, openness, accountability and efficiency laid down in UK Royal Commission on Criminal Procedure (1981) which has echoed through reform bodies

      • “A framework of first principles”

        • Is the system fair?

          • Brings to trial only those against whom there is an adequate and properly prepared case

          • Who it is in the public interest should be prosecuted?

          • In that it could display arbitrary and inexplicable differences in the way that individual cases or classes of case are treated locally and nationally

        • It is open and accountable

          • those who make the decisions to prosecute or not can be called publicly to explain and justify their policies and actions as far as consistent with protecting the interests of suspects and accused

        • It is efficient

          • it achieves the objectives that are set for it with the minimum use of resources and minimum delay

    • Police and the young offenders act

      • Young Offenders Act guides rather an mandates police discretion to treat children with dignity and respect to keep them out of the criminal justice system instead of ruining their lives

        • But is it used efficiently?

        • Replaced the “ways and means act” – what happens at the end

The Adversary System and the (In)visibility of the Pre-trial Process

  • Invisibility of pre-trial process

    • Key role of police in prosecution process

    • Centrality of guilty plea and plea negotiation

    • Pressure to produce guilty plea

  • Hogg Police in the Adversary system

    • Police inquiry divided into 2 essentially contradictory

      • Investigation stage - Should they be subject to charges? Or should they only be given a warning to not ruin their lives?

      • Sentencing - Find evidence only to make them guilty as part of the prosecution team but what happen to the objectivity from the investigation stage

    • An inconsistent role – due to incredible pressure from media and public, but this leads to an investigative approach which is nominative

      • A nominative approach builds a case around a theory of presumption for one suspect – this is completely discredited in the UK

      • They now use the eliminative approach that leads with one suspect from a group

    • Implications apparent in high profile cases

    • McLeod-Lindsey Case

  • “Plea Bargaining” (aka Charge negotiation)

    • Police station police + lawyer at committal after adjournment before trial first day of trial

    • Discount for being a snitch

    • Prosecution has discretion to lay charges – in Guideline 4 “The Decision to Prosecute” and s152 Criminal Procedure Act 1986

      • General public interest is paramount

      • Whether or not the admissible evidence available is capable of establishing each element of the offence

      • Whether or not it can be said that there is no reasonable prospect id conviction by a reasonable jury properly instructed as to the law; and if not

      • Whether or not discretionary factors nevertheless dictate that the matter should not proceed in the public interest

  • Andrew John Marlard

    • Wrongly convicted and imprisoned on the grounds of convivence to have a suspect

    • Had mental illnesses: including bipolar disorder and mania therefore he thought that he was invisible, so did not realise that what he was saying was detrimental

    • He had not undergone a fair trial because on the objective facts, he could not have done it

Miscarriages of Justice

Crown Appeals and the Double Jeopardy Principle

Case Study: Boraville

Process as Punishment

  • Deaths in custody

    • Malcolm Feeley (1979) – the process of punishment

      • Challenged the neat division of criminal justice processes into determining culpability and administering punishment

      • The process is usually punishment

      • Efforts to increase the fairness by making the system more deliberate may in fact produce precisely the opposite results

    • Punishment without trial – police as a penal agency

      • Being detained by police rather than prison is a form of contact with CJS most likely to result in the person being injured or dying

      • Hogg (1991) – policing and penalty

        • Reviews police custody survey carried out for the 1988 Royal Commission into Aboriginal Deaths in Custody

        • Mostly public drunkenness was police custody

        • Overwhelming reoccupation with petty public order offences

    • Who killed Mr Ward? 4 Corners Program

      • Death of Indigenous Elder Mr Ward in WA

      • Raised serious questions about police decisions to arrest and charge, bail procedure, and the long distance transport of prisoners in remote areas

      • Coroners Court Western Australia Record of Investigation Into Death

        • He was arrested by police in relation to traffic offences

        • The was transported by van, the only prisoner to be in the van that day

        • At some point in the journey he collapsed; from this he had a laceration on his forehead and a burn down his abdomen

Bail Reform

  • Key feature of the Bail Act 2013 (as amended in 2014 and 2015)

  • Preamble

    • The parliament of NSW is enacting this act, has a regard to the following:

      • The need to snsure the safety of victims of crime, individuals and the community

      • The need to snsure the integrity of the justice system

      • The common law presumption of innocence and the general right ot liberty

  • 8 Bail decisions that can be made

    • The following decisions can be made under this act in respect of a person accusesed of an offence:

      • A decision to release the person without bail for the offence

      • A decision to dispense with bail for the offence

      • A decisionto grant bail for the offence

      • A decision to refuse bail for the offence

  • 16 Flow Charts – key features of bail decisions

    • Show Cause Requirement

  • Unacceptable risk test

  • 20 Accused person to be released if no unacceptable risks

    • If there are no unacceptable risks, the bail authority must:

      • Grant bail

      • Release the person without bail

      • Dispense the bail

  • 20A Imposition of Bail Conditions

    • Bail conditions are to be imposed only if the bail authority is satisfied, after assessing bail concerns under this division, that there are identified bail concerns

    • A bail authority may impose a bail condition only if the bail authority is satisfied that:

      • The bail condition is reasonably necessary to address the bail concern

      • The bail condition is reasonable and proportionate to the offence for which bail is granted

      • The bail condition is appropriate to the bail concern in relation to which it is imposed

      • The bai condition is no more onerous than necessary to address the bail concern in relation to which it is imposed

      • It is reasonably practicable for the accused person to comply woth the bail condition

      • There are reasonable grounds to believe that the condition is likely to be complied with by the accused person

    • This section does not limit a power of a court to impose enforcement conditions

Application of the Bail Act 2013

Police Powers

Police and the Criminal Process

  • Policing as Social Control

    • What is the dominant public image of primary function of police?

    • What is the primary function of police?

    • Reiner Politics of the police

      • Social control (conservative vs radical)

    • Dixon law in Policing: Legal Regulation and Police Practices

      • Purpose of police powers:

        • Power of arrest

        • Move-on powers

        • Powers to stop and search

  • The exercise of police discretion

    • Constructing the suspect population

      • McConville The Case of the Prosecution

        • Suspect population

    • Racial profiling and the construction of the suspect population

      • Middle Eastern Serious Crime Squad (2017)

      • Targeting of suspect communities

        • Hillyard

        • Benier et al

        • Hopkins

  • Regulation and codification of police powers

    • Wood Royal Commission into NSW Police Service, Final Report: Reform, vol 2, 1997

    • RV Ericson Rules in policing

    • CRIME (2012) Regulation through policing

    • LEPRA (2005) Regulation through legislation

  • Legal framework from specific police powers LEPRA

    • 4: search and seizure without warrant

    • 8: arrest

    • 9: investigation and questioning

    • 11: drug detection powers

    • 14: powers to give directions

    • 15: safeguards relating to powers

    • 16: powers to detain intoxicated persons

    • 18: use of force

  • Failure to comply?: s138 Evidence Act 1995 (NSW)

Admissibility of Evidence: s138 of Evidence Act 1995 (NSW)

Power of Arrest: s99 Law Enforcement (Powers and Responsibilities) Act 2002 [“LEPRA”]

  • Updated s 99: additional discretion

    • Police have the power to arrest without a warrant

    • Significant update

      • Necessary reasonably necessary (completely subjective test)

        • “Reasonably necessary connotes more than convenient but does not mean essential or indispensable”

        • “As part of the process the officer must consider proportionate responses including alternative to arrest”

      • Must NOT arrest May arrest

        • Watered down the unambiguous restrictions placed on police with regards to circumstances they are entitled to arrest

        • Reflects parliaments intention that the statute expands police discretion to arrest as a first resort

  • A lawful arrest must satisfy the two arms of s99 LEPRA – Parts A and B

  • Unlawful if:

    • The police officer cannot prove within reasonable doubt that that they were lawfully executing their duties

    • It does not satisfy one the two above limbs

  • DPP v Carr [2002] NSWSC

    • Facts:

      • A police vehicle was hit by a rock and so Constable Robins approached Mr Carr and his female friend who did it

      • Carr, who is an Aboriginal drunk man through that they thought that he was a suspect, so he became abusive and started swearing

      • Constable Robins arrested him for offensive language

      • Mr Carr pushed him away and ran before being crash tackled

      • He was then taken into custody and charged with intimidation of police

    • Held:

      • It was held that the arrest was lawful but that the arrest was improper

    • Was it lawful within the new section 99? Yes

      • A - thepolice officersuspects on reasonable grounds that the person is committing or has committed an offence

        • Yes, the rock hit the car

      • B - thepolice officeris satisfied that the arrest is reasonably necessary for any one or more of the following reasons

        • Mr Carr was continuing to swear and become offensive

    • The principle that arrest is a last resort was reaffirmed

      • Arrest should not be used for minor offences and in circumstances where the defendants name and address are known rather, a summons would suffice

      • Although the arrest might have been done lawful, it did not satisfy the statutory test of improper

    • This triggers section 138 of the Evidence Act

      • “evidence that is obtained improperly is not to be admitted”

      • Improperly means “an act that is highly irregular, impermissible or clearly inconsistent with the standards of acceptable police conduct” – objectively

      • The magistrate found that the arrest was improper there was more than one technical breach

        • Evidence of impropriety arguable that the swearing in this case would be allowed, since it occurred before the improper event, which was the arrest by the police officer

  • Common law principle that arrest should be the last resort

    • “it is inappropriate for powers of arrest to be used for minor offences where the defendants name and address are known, there is not risk of him departing and there is no reason to believe that a summons will not be affective”

      • Because arrest:

        • is an additional punishment

        • Deprives freedom

        • Frequently associated with ignominy and fear

  • R v Rondo [2001] NSWCCA 540 Section 99(a) “suspects on reasonable ground”

    • Facts:

      • Police stopped a vehicle being driven by the appellant

      • After search the vehicle, they found drugs

      • He was then arrested and taken to the police station

    • Discussion on the meaning of reasonable suspicion

      • Reasonable suspicion involves:

        • Less than reasonable belief

        • But, more than a possibility

        • There must be something which would create in the mind of a reasonable person an apprehension or fear

        • What is important is the information in the mind of the police officer stopping

        • Reasonable suspicion is not arbitrary there must be factual basis

        • “What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information, the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances.”

        • An arrest may be unlawful if the police officer held reasonable suspicion, but this suspicion was NOT objectively based on reasonable ground

      • Stop lawful? No

        • Police officers must reasonably suspect that Mr Rondo had anything unlawful in the care, or stolen the car

        • There is no basis for...

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