Law Notes > LAWS1021 - Criminal Law - Crime and the Criminal Process Notes
Crime And The Criminal Process Notes
Updates Available
This is an extract of our Crime And The Criminal Process document, which we sell as part of our LAWS1021 - Criminal Law - Crime and the Criminal Process Notes collection written by the top tier of University Of New South Wales students.
The following is a more accessble plain text extract of the PDF sample above, taken from our LAWS1021 - Criminal Law - Crime and the Criminal Process Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Table of Contents
Justifications for Criminal Law: Harm, Risks, and Morality 5
Colonialism and Indigenous People 7
Deaths in Custody Case Studies 8
Normative Theories of Criminalisation 9
Expansion of Summary Justice 14
Models of the Criminal Process 16
The Adversary System and the (In)visibility of the Pre-trial Process 17
Crown Appeals and the Double Jeopardy Principle 17
Application of the Bail Act 2013 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
Exercise of Reasonable Force 31
Components of Criminal Offences 33
Constituting Legal Personhood 33
Interpretation of Statutory Offences - He Kaw The v The Queen 40
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
Nicola Lacey, In Search of Criminal Responsibility: Ideas, Interests and InstitutionsCriminalisation 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...
Buy the full version of these notes or essay plans and more in our LAWS1021 - Criminal Law - Crime and the Criminal Process Notes.