Ma hew Mangiapane

HSC Legal Notes: Crime

1. The nature of crime
a) The meaning of crime

Meaning of crime:

• Crime: Act which results in harm to society; punishable by state; lawmakers in a

society deem an act to be criminal

• De ni ons can oversimplify complexi es of law; don’t tell us behaviours behind

crime

• Factors that in uence lawmakers:

o Culture

o History

o Legal tradi ons

o Social a tudes

o Religious beliefs

o Poli cal systems

• Crimes are moral and ethical judgements on people’s behaviour

o Constantly changing as new crimes are created and old crimes become
irrelevant (from witchcra in medieval mes to laws rela ng to modern
technology)

• Legisla on reviewed by statutory bodies (government, courts)

• Controversial; a ects rights and freedoms of all society (from sexual assault in
marriage to smoking in a restaurant)

b) The elements of crime

Actus reus:

• La n for ‘guilty act’, refers to physical act of commi ng crime; must be proved by
prosecu on

Mens rea:
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• La n for ‘guilty mind’, refers to mental state of accused and inten on to commit the
crime/awareness of crime being commi ed

• 3 main levels: Inten on, recklessness, criminal negligence (R v Thomas Sam 2009)

c) Strict liability o ences

• O ence where mens rea does not have to be proven, only actus reus.

• Lessens the rights of the accused, and applied due to administra ve advantages

• Only used for minor o ences (eg. speeding, selling cigare es/alcohol to people
under 18)

d) Causa on
• Link between behaviour of accused and result

• Prosecu on must prove that the act of the accused must be at least the substan al
cause of the crime

• (R v Blaue 1975) (UK)

o Stab vic m refused blood transfusion, died

o Causa on s ll proven, as manslaughter s ll caused the wound which caused

the death, appeal failed

• (R v Munter 2009)

o The accused, Todd Munter, was charged with manslaughter a er he punched 66-
year-old Ken Proctor over a dispute regarding water restric ons. Mr Proctor fell to
the ground a er the punch and Mr Munter kicked him in the midsec on with
moderate force. Shortly a erwards, Mr Proctor died from a heart a ack that
occurred as a result of the blows in icted upon him by Mr Munter. Although Mr
Munter had no apparent inten on to murder Mr Proctor, the courts deemed that Mr
Proctor’s death was caused by Mr Munter’s unlawful assault. Mr Munter was
convicted of manslaughter and jailed for three years and three months.

o Todd Munter jailed over 'water rage' a ack on Sydney Grandad Ken Proctor –
news.com.au, 2009

e) Categories of crime
• O ences against the person

o Homicide

o Assault
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 Ma hew Mangiapane

o Sexual assault/aggravated sexual assault

• O ences against the sovereign

o Treason

o Sedi on

• Economic o ences

o Property o ences

o White-collar crime

o Computer o ences

• Drug o ences

o Tra cking

o Possession

o Use

o Cul va ng

• Driving o ences

o Speeding

o Drink driving

o Negligent driving

• Public order o ences

o O ensive conduct

o Obstruc ng tra c

o A ray

o Bomb hoaxes

• Preliminary o ences

o A empts

o Conspiracy

• Regulatory o ences
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o Breach of water restric ons, re restric ons or public transport rules

f) Summary and indictable o ences

Summary o ences:

• Less serious, lesser penal es

• Tried in local court; judgement and punishment determined by magistrate

• Charged by a police or government o cer

• Can incur good behaviour bond, ne, community service, maximum 2 years jail (5 if
more than one o ence)

Indictable o ences:

• More serious o ences with greater penal es

• Tried in district court (or supreme); judgement determined by jury, punishment

determined by judge

• Charge brought by public prosecutor working for the state

• Can incur imprisonment or he y ne

• Accused can have indictable heard as summary

o Time and cost e ec ve, administra ve advantages due to only one person
needing to be convinced of guilt instead of an en re jury

g) Par es to a crime
• Principal in the rst degree – perpetrator, actually commits the crime

• Principal in the second degree – present at crime and assisted principal

• Accessory before the fact – helped principal before the crime (plan, carry out, etc.)

• Accessory a er the fact – helped principal a er the crime

h) Factors a ec ng criminal behaviour

• Psychological factors – in uenced by mental illnesses or a er e ects of drugs

• Social factors - Family, who you associate with

• Economic factors – Disadvantaged, low socioeconomic background

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o 1/3 of men and 1/2 of women criminals are on welfare

• Gene c theories – More recent inves ga ons to determine common genes, etc.
between criminals

• Poli cal factors – Dislike for government, can lead to riots, public disorder and
terrorism

• Self-interest – Drug taking/cul va ng; the , white collar crimes driven by greed;
revenge

i) Crime preven on: situa onal and social

Situa onal

• Makes commi ng crimes more di cult by increasing associated risks/di cul es and
reducing rewards

o Eg. Colour tags

• Includes planning and architectural designs

o Eg. CCTV, alarms,bars

• Also includes a focused, situa onal approach that rests in ra onal choice theory, that
makes the poten al o ender second guess themselves, weigh the gains and risks and
costs, etc.

o Eg. Avoiding hotspots for crime like dark alleyways, non-smoking/drinking

zones with nes

Social

• Educa on for people, especially for those deemed likely to commit crimes

• A empts to address underlying social factors that lead to criminal behaviour

o Poor home environment/paren ng; addressed by disadvantaged paren ng

workshops

o Social and economic disadvantage

o Poor school a endance; addressed by school/TAFE programs to give be er

opportuni es

o Early contact with police and other authori es

• Don Weatherburn, BOSCAR: What Causes Crime? 2001 Paper

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o “…complex…risk and depth of criminal involvement is strongly in uenced by

the quality of paren ng”

2. The criminal inves ga on process

a) Police powers

Role of police:

• Inves gate crimes

• Make arrests

• Interrogate suspects

• Gather evidence

• Main issue: Balance the extent of power police have, and the rights of ci zens

o Terror laws involve giving police more power (changing minimum age of
arrest from 16 to 14 for terror-related crimes)

▪ Counter-Terrorism Legisla on Amendment Bill 2015 – Lapsed in

proroga on in April 2016, e ec veness yet to be seen, but media
scru ny has raised concerns

o SMH: Terror-related evidence could be kept from ‘control-order suspects)

o ABC 2015: An -terror laws: Control order plan takes us closer to a police state

• NSW Police Force given powers under the Law Enforcement (Powers and
Responsibili es) Act 2002 (NSW), the main powers include:

o Detain and ques on suspects

o Search and seize property

o Use reasonable force

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o Use technologies to assist (phone taps, DNA)

o Arrest and interrogate suspects

o Recommend whether bail should be granted

• Occasionally given extra powers in speci c area for speci c threats

• Also overseen by NSW Ombudsman and the Police Integrity Commission

• Complaint procedures available to ci zens and suspects

Police required to:

• Seek warrants for par cular powers

• Follow code of conduct for inves ga on: Code of Prac ce for CRIME (custody, rights,
inves ga on, management and evidence)

• Treat all equally regardless of age, sex, religion, background or crime

b) Repor ng crime
• Ci zens play role of repor ng crime

• Community programs encourage public to report informa on about criminal ac vity

o Crimestoppers allows people to remain anonymous when repor ng

informa on for unknown crimes and suspicious ac vity

• People may be hesitant to report crimes due to:

o Reluctance to become involved

o Fear of consequences of repor ng

o Inability to report

o Dispute has been se led with o ender, eg. Through a brawl/the by known
person

o Perceived me or administra ve burden of repor ng crime

c) Inves ga ng crime
• When police receive crime informa on, they decide if it’s worth pursuing

o May not inves gate due to not enough me, resources, etc.

• Must rst determine whether a crime occurred or not

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• Not all crimes are fully inves gated

• Process is long: Involves establishing whether crime occurred, nding the o ender,
gathering evidence, etc.

• Gathering evidence, use of technology, search and seizure, use of warrants

• Use of Technology

o LEPRA 02

o Evidence Act 1995 (NSW)

o Surveillance Devices Act 2007 (NSW)

▪ R v Silva (2015) – surveillance found excessive self defence,

manslaughter instead of murder

o Crimes (Forensic Procedures) Act 2000 (NSW)

▪ ABC Lateline ‘CSI E ect ques ons forensic evidence’ May 2012: – Expert
evidence or junk science? That's the ques on being asked a er a series of
high pro le appeals in recent months. They've raised alarming doubts about
the use of untested evidence that can put innocent people behind bars. – It's
called the CSI

▪ R v Gillham (2009) and (2012) – Appealed wrongful murder convic on in

1993; acqui ed in 2012 by Court of Criminal Appeal

d) Arrest and charge, summons, warrants

Arrests/warrants

• Police cannot detain without good reason, reasonable suspicion

• Law Enforcement (Powers and Responsibili es) Act 2002 (NSW) includes:

o Catching a suspect commi ng an o ence

o Believing on reasonable grounds that a suspect has commi ed or is about to

commit an o ence

o Where that person has commi ed a serious indictable o ence for which they
have not been tried

o Possessing a warrant for that person’s arrest

• Court warrant can be issued to police to arrest someone for the crime that they are
inves ga ng and bring that person before the court
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o These court warrants provide judicial safeguard for ordinary ci zens against
misuse of police power (eg. Arres ng too early in the process, excessive
force)

• Police must state to person that they’re under arrest and why, and can use the force
that’s necessary to arrest a person, like shoo ng (police must state that they have a
weapon and are willing to use it)

Summons:

• Summons: A court document calling someone to appear in court at a certain date

• Subpoena: A court document calling someone to present evidence or tes fy in

court

e) Bail or remand
• Bail: Temporary release of accused person awai ng trial, some mes on par cular
condi ons (lodgement, sum of money as guarantee)

• Remand: Period spent in custody awai ng trial

• Subject of controversy and law reform

o Bail Act 2013 and its revisions

o Cases showing downfalls of Bail Act

▪ Sydney Siege

▪ R v Fesus

▪ Father of 12-year-old daughter bride granted bail

▪ Alleged Sydney airport killer Mahmoud Hawi granted bail

• Edmodo pictures

f) Deten on and interroga on, rights of suspects

• Law Enforcement (Powers and Responsibili es) Act 2002 sets lawful condi ons for
suspect’s detainment

o Police can only detain for 4 hours, excluding rest breaks (8 with warrant)
before either charging or uncondi onally releasing the suspect

• As soon as suspect is in custody, interroga ng may commence and a cau on must be

issued orally and in wri ng to inform suspect of rights
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o eg. Maximum deten on period, don’t have to say or do anything but anything
you say or do can be used in evidence

o Suspects <18 have right to a responsible parent/guardian, however if the

person lies that they’re >18, their evidence is admissible in court

• Interview recorded on video and two audiotapes, for police records and for
defendant

• If charged at the end of the deten on period, police must either release or bring
them before a magistrate or authorised o cer. Those kept in custody will be brought
before the court for a bail hearing

o Excep on is Terrorism (Police Powers) Act 2002 (NSW), police can make
applica on to Supreme Court to detain for 14 days if there is a terrorism
threat

3. Criminal trial process

• Nicholas Cowdery (former NSW DPP): SMH 2013 ‘Thomas Kelly: This was never a
case of murder’

o “Sentencing requires judgement…balancing considera ons that point in

di erent direc ons…we seek to ensure that the best people for the job are
appointed as judges…if they get it wrong, the Court of Criminal Appeal may
correct them…the person in the best posi on to know if the sentence
imposed upon Loveridge is the right sentence is the sentencing judge. He has
read all the relevant material. He knows the law.”

a) Court jurisdic on
• Appropriate court depends on:

o Seriousness/nature of o ence

o First hearing/appeal

o Age of accused
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o Type of hearing

o Whether o ence under state or federal law

• O ence under NSW law = NSW court

• Commonwealth law case prosecuted by Cth DPP in courts of state where o ence
occurred

• Judiciary Act 1903 (Cth) gives states power to hear federal cases

• Original jurisdic on: Authority for a court to hear a ma er for the rst me

• Appellate jurisdic on: Authority for a court to review ma ers from another court

• Higher court can review case in lower court, but not vice versa

o Anything can be appealed all the way to the High Court

▪ R v Tang (2008) appealed to High by DPP following retrial

• Court hierarchy:

o High court > Federal Court > Court of Criminal Appeal > Supreme Court >
District Court > Local/Children’s/Coroners’ Court

b) The adversary system

• Two-sided structure - opposing sides present their posi on to impar al judge + jury
that determine truth

• Another system is inquisitorial: judges play a role in inves ga ng (used in Australia

for coronial inquests)

o Some believe adversary is fairer than inquisitorial as it allows both sides to

present their argument and is less prone to bias by those that determine the
case (judge less in uen al on case/jury, acts as referee)

• On the contrary, some say opposing sides are not equal in resources, skills or
knowledge

o Eg. in criminal cases, state (prosecutor) can have advantage over a lone
defendant who may only be able to a ord a lower- er lawyer; rich defendant
can spend what they like, state runs on budget

• Jury system cri cised as some say technical cases can be misunderstood due to lack
of understanding

c) Legal personnel
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• Judges: Oversee proceedings, maintain order, ensure correct procedures are

followed, instruct and help jury understand, hand down rulings and sentences

• Magistrates: Preside over Local Court (or a specialised magistrate in Children’s

Court), hear cases in Local Court and decide verdict/sentence

• Police prosecutors: Inves gate case, give tes mony at trial for prosecu on’s case,
especially in summary cases in Local/Children’s Court

• Public Prosecutors: DPP conducts some commi al hearings for indictable o ences,
prosecutes serious o ences on behalf of NSW Govt. using evidence gathered by
police

• Solicitors: Gives accused legal advice on case, usually specialise in law type, may
represent accused in court or employ/engage a barrister to do so perhaps in higher
court

• Public defenders: Public barristers independent of government, for legal aid

d) Pleas, charge nego a on

• Accused before trial required to enter into plea to judge; formal statement of guilt

o No plea = not guilty

• Guilty plea dealt with quickly, sentencing immediately and without witness
tes mony

• Not guilty plea results in case being defended in court, date will be set, before which
accused is either on bail or remand

o If found guilty, may a ect sentence

• Charge nego a on: Agreement between DPP and accused to plead guilty to a lesser
charge in exchange for other higher charges being withdrawn

• Plea nego a on: Accused pleads guilty in exchange for a lesser sentence, faster and
cheaper process

o Is not a guarantee, as a judge determines whether or not it gets taken into

account

• Top judge outraged by plea bargain deals – SMH (2011)

• Advantages:
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o E cient, quick, inexpensive

o Can save par cipants/community from unnecessary pain/expense

o Protect witnessed from cross-examina on, ordeal of giving evidence

o Increases rate of criminal convic ons

o Convic on on lesser charge be er than no convic on

• Disadvantages:

o Pressure on accused to plead guilty, even if they are innocent

o May get lighter sentence than deserved, or go unpunished altogether

o Doesn’t demonstrate idea of jus ce

o May lead to bullying of manipula on of accused to forfeit their right to a trial

o Prosecutors may threaten more serious charges to in midate accused into

pleading guilty to the lesser charge

e) Legal representa on, including legal aid

• If there is no adequate legal representa on, there cannot be a fair trial

• High Court ruling ‘Dietrich v The Queen (1992)’ made for the rst me the right to
representa on was limited

• Access crucial for fair, equal legal system

• Most defendants able to a ord barrister/solicitor to advise, some not, but quality
varies

• Self-representa on is not advised, especially in criminal ma ers, as people may not

understand legal complexi es

• Not everyone can a ord

o NSW Govt. created Legal Aid Commission in 1979 for disadvantaged/

marginalised to have equal access to the law

▪ Subject to means test to determine ability to pay for legal rep.

▪ Not able to cover all ma ers, representa on not free despite free
legal advice sessions, may be unable to access assistance due to
limited funding
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f) Burden and standard of proof

• Central concept of legal system: ‘innocent un l proven guilty’

• Burden of proof belongs to prosecu on

• Prosecu on/plain must also meet standard of proof

o Criminal: Beyond reasonable doubt (‘101%’)

o Civil: Balance of probabili es (‘51%’)

• Consequences of criminal case higher than civil, hence higher standard

• DPP will not bring a case to the courts unless they feel a jury will be convinced by
evidence

o Trials cost me, money etc. so case must be winnable

g) Use of evidence, including witnesses

• Bound by Evidence Act 1995 (NSW)

• Evidence inadmissible if obtained illegally, irrelevant, or indirect evidence

• Can take form of real (physical) evidence, documentary evidence and witness
tes mony

• Witness with knowledge of crime may be subpoenaed or face charge of contempt of

court

• Witnessed take oath to tell truth (or else face perjury), and be asked series of
ques ons usually by both prosecu on and defence

• Expert witnesses have studied some element of evidence (eg. DNA, blood spa er,
handwri ng, psychiatrist or anyone that’s assessed defendant) as an independent
expert during inves ga on, and give tes mony based on specialised knowledge and
present opinion/interpreta on of evidence)

• R v Wood (2012):

o Shows poten al shortcomings in expert tes monies

o Convicted of 1995 murder of girlfriend

o Expert witness tes ed Wood could have caused death by throwing body o
The Gap at Watson Bay
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o Convic on overturned by Court of Criminal Appeal, as tes mony was awed

and there was reasonable doubt about scien c proof leading to death

h) Defences to criminal charges: Complete defences, par al defences to

murder
• Defendant must have legal defences

• Most defences involve some denial, jus ca on or excuse of the act

• Majority revolve around mens rea of o ence

• These help achieve jus ce to enforce rights of o ender to defend themselves; allows
court to consider circumstances that might jus fy accused’s act or reduce culpability

• In some circumstances, they permit reduced liability (eg. mental illness)

• Complete defences – result in complete acqui al

o Mental illness/insanity (R v Ayoub 1984(?))

▪ Mental Health (Criminal Procedure) Act 1990

o Involuntary behaviour/automa sm (R v Falconer 1990) (ba ered wife killed

husband apparently blankly, involuntary due to unsound mind a ected by
external psychological factors)

▪ SMH 2006: I’m glad it’s over: Robber’s killer freed

▪ Mental Health (Criminal Procedure) Act 1990

o Mistake/lack of inten on

o Self-defence/necessity (R v Zecevic 1987)

o Duress (R v Williamson 1972)

o Consent (R v Lloyd 1989, R v Aitken and others 1992 (UK), R v Hemsley 1988,
R v Donovan 1934)

• Par al defences – result in reduced culpability/sentence

o Provoca on (R v Camplin 1978)

o Diminished responsibility – homicides, prove su ering from mental

abnormality that does not include being under the in uence (Viro v The
Queen)
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o Infan cide – mother killing baby under 12 months; post-natal depression (The
Age (VIC) – “Mother who killed baby daughter walks free”)

i) The role of juries, including verdicts

• Juries re ect historic right of accused to be judged impar ally by peers using
evidence

• NSW: Juries used for most indictable o ences where ‘not guilty’ plea is entered
(District/Supreme)

• 12 people (for criminal) selected at random from electoral roll 18 and over, sworn in

o Di cult to gain exemp on unless generally 65+, pregnant or full me child

carer

o Ineligible: Non-English speakers, emergency service workers, disabled people,

convicted criminals, members of legal profession

• Jury Act 1977 (NSW)

• Challenging jurors: Prosecu on and defence have right to challenge either panel or
individual jurors

o Pre-emptory challenges: Legal team rejects juror without needing to provide

reason

o Challenges for cause: Legal team rejects juror because they believe juror will
be prejudiced

• Must listen to evidence (be a en ve, take notes if desired), apply law as directed by
judge and decide verdict

o Can ask for clari ca on from judge

• Can only talk to fellow jurors

• Jury elects foreperson who speaks on jury’s behalf

• Must be impar al and unbiased, make judgement based solely on evidence, not
in uenced by media or personal beliefs

• SMH ar cle: “‘Beyond Reasonable Doubt’ Ba es Jurors”, which outlines a 2008 study
conducted by the NSW Bureau of Sta s cs on jurors’ understanding of the trial process.
While 94.9% of jurors said they understood all or most of a judge's instruc ons, only
55.4% understood the true meaning of ‘beyond reasonable doubt’.
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• Misunderstanding can lead to jury misconduct, as seen in the case R v Bilal Skaf,
Mohammed Skaf (2004), where a serious aggravated sexual assault case was appealed
and re-trialled, was ng resources and placing those involved under more strain; all due
to two jury members inves ga ng the ligh ng at the scene of the crime. As their
decisions could have been in uenced by evidence not brought into and examined in
trial, a re-trial was scheduled.

• Verdicts: Must reach verdict of not guilty (acqui ed) or guilty (judge passes sentence)

o Can deliberate for days; hung jury can occur, retrial occurs

▪ Increases me, money, strain on all par es

o May be complica ons in reaching a unanimous verdict due to misunderstanding,

rogue or unreasonable jurors. In response to this issue, the Jury Amendment
(Verdicts) Act 2006 (NSW) was legislated to allow juries to arrive at majority
decisions (11-1 or 10-1) instead of being forced to arrive at a unanimous decision
(except for Commonwealth o ences).

▪ This change decreased the amount of hung juries, which usually result in
a re-trial. Also keeps large majority

▪ However, there is technically s ll some reasonable doubt that can be

ignored; can be seen as viola ng central concept of legal system

• ABC: ‘Simon Gi any and the case for judge-only trials’

4. Sentencing and punishment

a) Statutory and judicial guidelines
• Crimes (Sentencing Procedure) Act 1999 (NSW) sets out purpose for which a
sentence may be imposed, types of penal es that can be imposed when they can be
used, as well as other factors/guidelines

• Max penalty for o ence decided by Parliament and listed in legisla on; di er
according to seriousness of crime (eg. murder = life, sexual assault = 14 years)

• Lesser penal es available to judges; judicial discre on used

o Eg. Prison can only be imposed unless no other sentence us appropriate

• Judges can be guided by former judgements in cases

o May also be cited by prosecu on or defendant

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• Law allows for NSW A orney-General to apply for guideline judgements on

sentencing

• Mandatory minimum sentencing: Parliament sets minimum sentence for crime

o Eg. NSW Govt. recently trying to introduce MM sentencing for murder of

police o cer – some argued unnecessary as there was already a max non-
parole period of 25 years

▪ Mandatory minimum sentences are a legal and judicial muddle – The

Age, 2014

o R v McNeil (2015) – case regarding one punch laws, death of Daniel Chris e

o Mandatory sentencing: a king hit for courts – ABC 2014

o Overrides judicial discre on at cost of a emp ng to create consistency, harsh

deterrent for repeat o enders

▪ Doesn’t take into account mi ga ng circumstances: not equitable,

doesn’t protect rights of the accused

▪ Viola on of separa on of powers

o Sparsely e ec ve

b) The purposes of punishment

• Deterrence:

o Speci c: Prevent convicted person from reo ending

o General: Discourage people to commit par cular o ences (make penal es

aware)

• Retribu on:

o O ender given just penalty so that there is no bene t from crime

o Can be considered ‘revenge’ to vic m, public

• Rehabilita on:

o Type of punishment chosen to help reduce/eliminate criminal behaviour of

o ender, help in integra ng back into society
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• Incapacita on:

o O ender prevented from reo ending through imprisonment

o Protects society from harm, protects accused from self-harm

• Crimes (Sentencing procedure) Act 1999 (NSW):

o Lays down allowable purposes of sentencing

o Sets general guidelines for courts to use in sentencing

c) Factors a ec ng a sentencing decision

• As per C(SP)A 1999 (NSW):

• Aggrava ng factors

o If vic m is police o cer

o A ected by drugs

o Abuse of trust/authority/vulnerability

o Actual/threatened use of weapon/violence

o Commi ed in company

• Mi ga ng factors

o Under duress

o Provoked

o Not planned/part of organised crime

o If harm/loss/damage is not substan al

o If o ender shows remorse/good rehabilita on concepts

o Pled guilty/complied with police

d) The role of the vic m in sentencing

• Vic m Rights Act 1996 (NSW)

• Vic m Impact Statement – wri en statement by vic m/family about crime’s impact

o Equity in process – parallel to mi ga ng circumstances helping o ender’s

case
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o Can s ll have impact – detracts on objec ve facts, vic m is heard

▪ R v Stanford (2016), mother’s impact statement a factor that led to life

without parole, made rounds on Daily Tele, etc., Sky News Australia
“Stephanie Sco killer jailed for life”

• Challenge in balancing o ender and vic m: SMH 2013 Nicholas Cowdery in ‘Thomas
Kelly: This was never a case of murder’

o “the courts are not there to translate their grief and pain into an unjust
sentence. They must act according to the law…”

• Crimes (Sentencing Procedure) Amendment (Family Vic m Impact Statement) Act

2014 amended Crimes (Sentencing Procedure) Act 1999; judges can now take
account of family’s vic m impact statements when sentencing, ensures no inferences
can be made that in absence of one, the crime had li le impact on the family

e) Appeals
• Appeals can be made by appellant/applicant: person convicted or by the Crown/DPP
if they believe sentence is too lenient

• Two types:

o Appeal against convic on

o Appellant argues they didn’t commit the o ence (usually involves argument
in error of handling of case)

• Sentence appeals

o Appeals against severity/leniency of sentence

• Crimes (Appeal and Review) Act 2001 (NSW)

• Can appeal for legal error in Court of Criminal Appeal

o R v AEM (Snr); KEM; MM (2001) District Court and (2002) NSWCCA

▪ Teenage gang rape – sentenced to 6 years; led to public outcry and

DPP appeal; increased to maximum of 13 years, younger two serving
in an adult prison once they turn 19 and 20 respec vely (before that,
in a Juvenile Jus ce Centre)

▪ Reform: Led to NSW Government amending the Crimes Act 1900

(NSW) with the Crimes Amendment (Aggravated Sexual Assault in
Company) Act 2001 (NSW). This amendment inserted a new sec on
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(61JA), so that judges could impose longer sentences (increase from

20 year maximum, to liable to imprisonment for life)

▪ When only silence can be jus ed – SMH, 2002

• Cri cal of DPPs and Cowdery speaking out against media and
poli cal denouncers of judges and DPP, but not this me, due
to public pressure

f) Types of penal es
• Cau on

• Criminal infringement no ce

• Fines

• Forfeiture of assets

• Bond

• Proba on

• Suspended sentence

• Community service orders

• Imprisonment

• Home deten on

• Intensive correc on order

• Diversionary programs

g) Alterna ve methods of sentencing

• Circle sentencing – rela vely e ec ve

o Directly involves Indigenous o enders, more likely to be trusted, reduce

recidivism

o Understanding between Indigenous communi es and courts

o More improvements needed in areas of par cipa on and support services

• Restora ve jus ce – reasonably e ec ve in tandem with exis ng processes, not

replacing
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o Voluntary conference between o ender and vic m of crime, to reduce

reconvic on and increase equality, fairness and access while being e cient

o Although their e ec veness is unclear, Australian studies based on youth

conferencing ini a ves have shown a 15-20% reduc on in re-o ending is
possible

o Limited scope hampers expansion – usually only for minor or youth crime

h) Post sentencing considera ons

• Security classi ca on:

o Maximum, medium and minimum classi ca on of security/freedom

o O enders classi ed according to seriousness of crime, prospects of

rehabilita on and whether or not they displayed good behaviour during
previous sentences

• Protec ve custody:

o Provided to o enders vulnerable to a ack from other prisoners

o Purpose of sentencing to isolate from community to incapacitate, etc., not to

subject them to physical harm and inhumane condi ons

• Parole:

o Condi onal release of a prisoner from custody a er minimum term of

sentence

o Incen ve for rehabilita on, increase likelihood for o ender reform/be er

discipline

o Released o ender placed under direct supervision of parole o cer, who

o ender reports to and is seen to comply with their parole condi ons

• Preventa ve and con nued deten on:

o Imprisonment for poten al harm to community

o Post-sentence preven ve deten on: person serves under sentence

o Preventa ve deten on without charge: any me, can infringe on rights of

individuals, esp. legal right to due process

o Kable v DPP (1996)

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▪ A er release and elec on campaign of law and order, law was passed
naming him explicitly, requiring him serve preventa ve deten on for
six months

▪ The Community Protec on Act 1994 was an invalid law because it

vested the Supreme Court of New South Wales with powers
incompa ble with its role in the federal judicial structure

o Crimes (Sex O ender) Act 2006 (NSW); con nued deten on for serious sexual
o enders if applica on by Governor-General is accepted

o Purpose: safety of community, facilitate rehabilita on

• Sexual o enders’ registra on

o State/federal databases of o enders of certain sexual o ences

o Established under Child Protec on (O enders Registra on) Act 2000 (NSW)

o Required to register whichever is later out of when person is sentenced; or

when person ceases to be in government custody in rela on to o ence

o Adults – minimum of 8 years, juvenile – 4 years

o Can protect community; however, can target certain o enders long a er

sentence, which denies rehabilita on, however severity of original crime +
risk of reo ending outweighs burden that the registry requirements impose
on the o ender

• Deporta on

o Migrant Act 1958 (Cth) – non-ci zen migrant can be deported if convicted of
criminal o ence (sentence of 12 or more months within 10 years of
residence)

o Highly publicised due to severity

o Controversial – appear to treat a person as a problem solved by moving it

elsewhere, but with no follow-up or support

▪ No support in rehabilita on, as they can be moved to a country they

know nothing about

o If o ender cons tutes a threat to Australian security or convicted of a serious

o ence as well as deported, they may be prohibited from returning to
Australia

o Robert Jovicic: The stateless man

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 Ma hew Mangiapane

▪ Migrated to Australia at 2 years old, never became full ci zen like

many permanent residents

▪ Addic on to heroin led to being charged with crimes

▪ Migra on Act 1958 (Cth) led to his residency being cancelled,

deported to Serbia

▪ Knew nothing of language and no working visa = stateless

▪ Became homeless and ill, garnered media a en on

▪ Eventually given special purpose visa and then permanent residency

visa to come back a er much conjecture

5. Young o enders
a) Age of criminal responsibility
• Law treats children di erently, however are subject to same laws

• <10 – too young to form mens rea, therefore doli incapax applies

o As per the Children (Criminal Proceedings) Act 1987 (NSW)

o Generally also don’t give evidence, however there is no restric on

• 10-14: Condi onal/rebu able presump on of doli incapax, that child can’t form
criminal intent; prosecu on can rebut about existence of criminal intent/mens rea

• >14: Criminally responsible for any o ence, can commit actus reus and mens rea;
however no convic on can be recorded unless o ence is serious

• >18: Fully responsible, no longer has cases heard in Children’s Court

The age of criminal responsibility in NSW

Age (inclusive) Criminal responsibility
0 – 9 years old Cannot be charged with a criminal o ence. Children under 10 are not seen as
mature enough to commit criminal o ences
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10 – 13 years old Rebu able presump on of doli incapax. Presumed not capable of commi ng
an o ence, but prosecu on may show the child knew what they did was
‘seriously wrong’ and not just ‘naughty’.
14 – 15 years old Criminally responsible for any o ence commi ed, but no convic on can be
recorded unless it is a serious o ence
16 – 17 years old Criminally responsible for any o ence commi ed and a convic on may be
recorded, but the case will s ll be heard in the Children’s Court
18 years or older Full adult criminal responsibility, with case to be heard in adult courts. If the
o ence was commi ed before the accused’s 18th birthday, it can s ll be
heard in the Children’s Court un l the accused turns 21.

• Case: R v LMW (1999)

o 10y/o charged with manslaughter

o Dropped 6y/o in river with knowledge he couldn’t swim

o Not guilty of manslaughter, jury ruled it as an act of bullying gone wrong

o Raised issue of doli incapax, any child 10-14 incapable of mens rea unless
proven otherwise

• Ar cle: Austlii 2003 Thomas Cro s: Doli Incapax: Why Children Deserve its Protec on

o “A child of 12 in Australia has access to television, radio and the Internet, and
has a far greater understanding of the world than a 12-year-old in rural
Britain in 1769.”

o “It cannot be denied that children today make much greater use of modern
technology than in earlier years. However, this does not simply equate with a
be er ability to understand the wrongfulness of ac ons.”

• SMH 2012: Age of criminal consent: 16 or 8

o BOCSAR: “In 2010, more than 450 children under 14 were charged with
criminal o ences in NSW”

o Daryl (Wentworth home owner): “Jail is not the answer, but allowing these
kids back on the streets to reo end is not either. How many chances to
rehabilitate do these kids get?”

o Thomas Cro : “bringing a 10-year-old before the court would do ''more harm
than good''

o Mayor of Wentworth: “Eight and below”

o UN High Commissioner of HR: 12 should be “absolute minimum”

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b) The rights of children when ques oned or arrested

• Recognised need for children and young people to have special protec ons with
regards to the law that are not a orded to adults

o In line with UN’s Conven ons on the Rights of the Child

• ARLC enquiry in 1997: Seen and Heard: Young People and the Legal Process

o Standardising minimum age of criminal responsibility (achieved in 2000)

o Standardising na onal standards through legisla on or policy for juvenile

jus ce covering inves ga on and arrest, bail condi ons, sentencing and
deten on

o Survey: 78% of young people surveyed stated that police rarely treat young
people with su cient respect – room for improvement in rela onship

• Police powers, and those regarding children, are governed by the Law Enforcement
(Powers and Responsibili es) Act 2002 (NSW)

Ques oning of young people

• Most powers apply equally to adults and children (eg. ask a person to ‘move on’,
approach and ask ques ons, most powers of search and seizure)

• Police can ask for name, address and proof of iden ty and vice versa

o Under the Summary O ences Act 1988 (NSW) an o ence can be commi ed if
details are not given in the case of a person suspected by the police of being
under 18 carrying or consuming alcohol

• Police may ask ques ons, but person can exercise right to silence even under arrest
as what they say can be used against evidence, and o en obtain independent legal
advice rst

o Children (Criminal Proceedings) Act 1987 (NSW) states that any informa on or
statement a young person gives to police must be given with a responsible, separate
adult present, otherwise the evidence is inadmissible (unless judicial o cer admits
it)

• Police cannot perform strip search on children under 10, and between 10-18 another
responsible adult must be present

Arrest and interroga on of young people

• Condi ons under which a young person can be arrested are the same as those for
adults
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o Police know or believe on reasonable grounds that person has commi ed or

is about to commit an o ence

o Cannot use excessive force

• No interview can be conducted unless support person (parent, guardian, solicitor

etc.) is present

o R v Phung (2001) – upon realisa on Phung was 17, detec ve would not speak
to him un l adult present (in the form of his cousin)

▪ Cousin spoke in their own language, and later English at police request

▪ Admissions made by accused were inadmissible

• No current requirement for legal representa on during an interview, but is being

suggested. Custody manager’s duty also involves telling young person that Legal Aid
Hotline is available and can ring it

• Cau on of rights applicable to both children and adults – however cri cism of this
has been that children may not understand technical language and therefore cannot
truly acknowledge that they understand the cau on given (pertaining to right to
silence)

• Can be detained maximum of four hours, further 8 hours if warrant for extension is
granted

o Recommended that deten on be no longer than 2 hours, as vulnerability is

increased with longer me periods. Presence of interview friend may help
prevent evidence being obtained under duress

• Young people 14 years and over may take ngerprints/photos for iden ca on
purposes, but for under 14s, they must apply to the Children’s Court to do so, who
will take into considera on o ence severity, cultural considera ons and the best
wishes of the child.

o Cannot take DNA sample of any suspect under 18 unless court order allows it;
and if the criminal ma er is not proven in court, any ngerprints/photos/DNA
samples must be destroyed on parent/guardian’s request

c) Children’s Court – procedures and opera on

• Established under Children’s Court Act 1987 (NSW)

• Hears any o ence other than a serious indictable o ence commi ed by a child, and
any commi al proceedings of an indictable o ence when the accused is a child (can
be referred to by Department of Community Services)
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• Should show regard towards:

o Children have equal rights to adults; should be involved in proceedings

a ec ng them

o Should be held responsible for ac ons, but require guidance/assistance

o Educa on and residence at home should not be interfered with

• NSW Commission for Children and Young People:

o In an average day, 165 children were in sentenced deten on

o Male children 14x more likely to be in sentenced deten on

o 15-17 year olds 13.3x more likely than 10-14s

o Aboriginal children 26.7x more likely

o Posi vely, out of all children appearing before criminal court, 1% resulted in
deten on as principal penalty

• Di erences in trial formali es with ordinary courts:

o Ma er heard summarily before a single magistrate

o Closed court to protect iden ty, media cannot publish names of living
children without court permission

o Focus on ensuring child understands proceedings, and child’s par cipa on in

case

o Available penal es/sentencing procedures di er from ordinary court

▪ Need to consider main trial and sentencing principles under s 6 of the

Children’s (Criminal Proceedings) Act 1987 (NSW)

• In its jurisdic on, can decide that a child requires a clinical assessment and
submission of such to the court

o Generally performed by NSW Juvenile Jus ce, but more recently via clinic

o Aim to determine if there are ‘speci c psychological, psycho-social or mental

health issues’ present in the child’s situa on that the court needs to consider
prior to passing a sentence.

• Case: Police v JM
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 Ma hew Mangiapane

o Maximum penalty for control order up to 2 years applied due to repeat

o ending, and his proximity to 18 years of age (“considera ons relevant to…
youth diminishes the closer the o ender approaches the age of maturity…
cannot expect to be treated substan ally di erently)

• Australia’s Children’s Courts: The ndings of a ‘Na onal Assessment’ (Monash)

o One iden ed limita on was the inability to capture the voices the court’s
clients

o Children’s Courts have growing, increasingly complex workloads, need for

addi onal Legal Aid alloca ons (esp. for non-city areas)

o Proposed a shi away from cri cal incident-based, antagonis c and

confronta onal approach of common law adversarialism in dealing with child
welfare cases for more collabora ve/therapeu c approach

d) Penal es for children

• Children (Criminal Proceedings) Act 1987 (NSW) outlines principles for sentencing
process:

o Penalty must not exceed an adult’s for same o ence

o Children assisted reintegra on into community

o Children accept responsibility and make repara ons where possible

o Subject to other principles, considera on given to e ect on vic m

• Juvenile Jus ce Centres:

o Relate to control orders, most severe sentence; up to 2 years

o Managed by NSW Juvenile Jus ce, overseen by Children (Deten on Centres)

Act 1987 (NSW)

o Provide safe, humane, secure environment for young o enders; as well as

educa onal recrea onal facili es

o Too many end up in juvenile; bad as incarcera on is detrimental to

rehabilita on

▪ Tougher bail condi ons lead to rise in juveniles on remand

▪ Ar cle: ‘Smith considering bail changes to cut remand numbers’ (SMH

2012)
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 Ma hew Mangiapane

• NSW has the largest number of prisoners on remand in

Australia (2500 in 2009 compared to <1000 in other states)

• ''The fundamental no on of jus ce is that a person is innocent

un l proven guilty,''

o Not the most resource e cient

• Sentencing op ons:

o Dismissal – charge dismissed, may issue cau on

o Convic on – for >16s, only recorded convic on

o Adjournment – deferred for up to 12 months to assess rehab poten al

o Bond – maximum of two years, with possible ne, court sanc oned
condi ons

o Youth jus ce conference – release subject to compliance with YJC outcome

plan

o Fine – up to 10 penalty points ($1100) as court sees t (regarding

circumstances)

o Proba on – bond overseen by o cer of NSW Juvenile Jus ce

o Community service order – up to 100 hours for <16s, 250 hours otherwise;
pending assessment of suitability for order

o Suspended control order – suspended for up to 2 years, pending behaviour

o Control order – Deten on in juvenile deten on for maximum 2 years

• Sentencing considera ons:

o Social/economic factors (eg. ability to pay ne)

o Severity of o ence

o How rehab is a ected

o Repeat o enders/if child acts with grave adult behaviour indicated by

seriousness of o ence and/or level of premedita on involved

▪ R v Pham + Ly (1991)
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• Rehabilita on in uence does not mi gate the need for

protec ve aspect of court, general deterrence needed for
robbery due to its prevalence in youth crimes

• Deterrence and retribu on do not cease to be important,

hence 12 months in remand being ‘inadequate’

e) Alterna ves to court

• Primary diversionary program provided by Young O enders Act 1997 (NSW)

o Encourage rehabilita on, reduce rate of recidivism, reduce burden on court

system of more minor youth o ences

o Principles:

▪ Least restric ve sanc on should be applied where possible

▪ Children should be informed of their right to seek legal advice

▪ Criminal proceedings not to be started if there is an appropriate

alterna ve for dealing with ma er

• Child Protec on Legisla on Amendment Act 2014

o Increase parental responsibility; permanency planning; increasing the use of

Alterna ve Dispute Resolu on to reduce the me spent in court.

• Warnings

o O cial no ce given to young o ender by inves ga ng o cer, without

condi ons

o Rela vely informal; but o cer must tell o ender nature, purpose and e ect
of warning as well as keep a record of the warning

o Cannot be given for an act of violence, repeat o ence or at discre on of

inves ga ng o cer

• Cau ons

o Formal, recorded cau on issued to young o ender to discourage further

o ending

o Alterna ve to prosecu on, o ender admits to the o ence and consents to

receiving formal police cau on
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 Ma hew Mangiapane

o Given or not based on seriousness of o ence, degree of violence, harm

caused and number of o ences commi ed

o Not a convic on; however, may be taken into account in the Children’s Court

o O ender must understand nature and e ect of cau on, and then sign cau on
no ce

o Specialist court o cer must make a record of cau on given by o cer/court.

Inves ga ng o cer may also refer to specialist court o cer to decide if
ma er should instead be referred to youth jus ce conference

• Youth Jus ce Conference

o Measure to divert young o enders from the court system through a

conference that addresses the o ender’s behaviour in a more holis c ma er

o Used when young o ender admits to o ence and consents to having it dealt
with by this method

o Allows o ender to take responsibility of ac ons, promote be er family

understanding of issues and to provide o ender with appropriate support
services

▪ Empowers families and vic ms un decisions about child’s o ence and,

where suitable, make repara on to the vic m

o Increase rights of vic ms in criminal jus ce process; ul mate aim is to make

decisions that respect the o ender’s rights and take into account their needs

o Consists of o ender, conference convenor, conference administrator (ensures

records of conference), inves ga ng o cial, member of o ender’s family,
o ender’s legal representa ve, another adult chosen by o ender and
specialist youth o cer

▪ Vic m can also a end, as well as any support people of vic m

▪ Range of people provides picture of child’s life and exper se and

experience to take holis c approach to nding solu ons for behaviour

• E ec veness

o Received well; embraces welfare model of juvenile jus ce, focus on rehab
over tradi onal means of dealing with crime

o One of the cri cisms however, is that it’s not being used for a wide enough
range of o ences, can exclude some young o enders from bene ts
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▪ Shopfront Youth Legal Centre in response to 2003 review of

sentencing of young o enders from NSWLRC argue that youth jus ce
conferencing would be suitable for even very serious o ences as
o ender obliged to consider consequences of ac ons, and harm
caused to vic m

6. Interna onal crime

a) Categories of crime

Crimes against the interna onal community

Piracy

• Any illegal acts of violence or deten on, or any act of depreda on commi ed for
private ends by crew or passengers of private ship/aircra ; directed against another
ship/aircra , perhaps outside the jurisdic on of any state

• Sanc on allows any a ected state to bring pirates to jus ce

• Breach of jus cogens – norms of customary interna onal law

War crimes

• Serious viola ons of the interna onal humanitarian law of armed con ict (incl.
Hague and Geneva Conven ons of lawful war and POW treatment)

• Must be; serious infringement of interna onal rule protec ng important values and
having grave consequences, violate important principle of interna onal law/relevant
treaty, and viola on must include individual criminal responsibility

• Inhumane treatment, targe ng civilians, hostages etc.

• Prosecutor v Dusko Tadic (1999)

Crimes against humanity

• Par cularly heinous o ences, that are an a ack on human dignity or grave
humilia on of a person(s)

• Systema c atroci es commi ed under the authority of a government or condoned

by such a government

• Eg. large scale extermina ons, enslavements, torture, discriminatory persecu on

• Prosecu on v Tihomir Blaskic

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 Ma hew Mangiapane

o Interna onal Criminal Tribunal for the former Yugoslavia indicted him on war
crimes (later acqui ed, reducing sentence from 45 years prison to 9) and
crimes against humanity in Croat-Bosniak War during Bosnian War

Genocide

• United Na ons Conven on on Genocide (1948) de nes it as the persecu on of

na onal, ethnic, racial and religious group (not clearly de ned)

• Bosnia and Herzegovina v Serbia and Montenegro (2007)

Aggression and crimes against peace

• Clear di cul es with the right to self-defence

Terrorism

• Di culty in de ni on – terrorism or freedom ghter of na onal libera on?

• Inten on to compel states to do or not do certain acts by terrorising or in mida ng

the state’s popula on

o As per Interna onal Conven on for the Suppression of Acts of Nuclear

Terrorism (2005), Financing of Terrorism (1999), Terrorist Bombing (1997),
Taking of Hostages (1979)

Transna onal crime

Money laundering

• UN Conven on Against Transna onal Organised Crime (2000) commits countries to

take measures against par cipa on in organised criminal groups, money laundering,
corrup on and obstruc ng jus ce

People smuggling

• Organising of illegal entry into a state, of people who are not permanent residents or
ci zens of the state

• Conven on against Transna onal Crime (2000) includes Protocol to Prevent,

Suppress and Punish Tra cking in Persons, Especially Women and Children requires
states to punish tra ckers and protect vic ms

• Interna onal Conven on of Slavery (1926) introduced by League of Na ons, and

ar cle 35 of the Conven on on the Rights of the Child (forbids tra cking of children)

• Case: R v Wei Tang – rst prosecu ons made under slavery provisions of CCode
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 Ma hew Mangiapane

o Highlighted serious problems in Aus. Enforcement campaign, issue of

protec on visas and deporta on

▪ Govt proposals made to x this, e ec veness remains to be seen

• R v Chee Mei Wong 2013 NSW – 6 years jail under Criminal Code 1995 (Cth)

o Hired Malaysian brothel workers, unfair hours and treatment, she made the
girls believe they had incurred debt

Arms tra cking

• Protocol against the Illicit Manufacturing and Tra cking in Firearms, their Parts and
Components and Ammuni on (2001) facilitates coopera on among states in order to
prevent and eradicate illicit manufacture of rearms

Drug tra cking

• Conven ons made in an a empt to end the trade in illicit drugs and promote state
coopera on, through providing sta s cs and reports to the Interna onal Narco cs
Control Board

o Speci cally directed against tra cking: Conven on against the Illicit Tra c in
Narco c Drugs and Psychotropic Substances (1988)

b) Dealing with interna onal crime*work on (Edmodo?)

Domes c measures

• Limited by jurisdic on – Australia cannot operate in foreign country

• Crimes against the interna onal community

o Signing and ra ca on of Rome statute helped criminalise recognised

interna onal crimes on top of other legisla ons

• Transna onal Crimes

o AFP – enforcing and peacekeeping

o Commonwealth A orney-General’s Department
o Australian Crime Commission (ACC)
o Customs and Border Protec on Service
o Australian High Tech Crime Centre
• Coordinates all Australian law enforcement authori es in gh ng serious types
of crimes that involve the use of technology by:
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 Ma hew Mangiapane

o Coordina ng a na onal approach to serious, complex and mul -

jurisdic onal crimes

o Assis ng all Australian jurisdic ons in their ability to deal with high-tech
crime.
Example

h p://www.smh.com.au/technology/technology-news/hightech-
criminals-outsmar ng-the-law-20110308-1bl .html

o State and territory bodies

▪ State and territory bodies have a cross-jurisdic onal nature, that inves gate
transna onal crimes

▪ Share intelligence and cooperate with other na onal, state and territory
bodies in order to ght transna onal crime
Example

<h ps://www.icac.nsw.gov.au/inves ga ons/past-inves ga ons>

The ICAC inves gated allega ons concerning alleged corrupt

payments related to the supply of catering and other products to the NSW
Rural Fire Service (RFS) between 2009 and 2015. The Commission examined,
amongst other ma ers, whether payments made by the RFS to catering
companies controlled by Sco Homsey were induced by representa ons
made by RFS employees (Arthur) John Hacking and Paul Springe , RFS
volunteer Darren Hacking, and Mr Homsey, which they knew to be false or
misleading, or by those persons concealing facts from the RFS that they had
a duty to disclose.

In its report on the inves ga on, made public on 17 December 2015,

the Commission makes ndings of serious corrupt conduct against John
Hacking, Sco Homsey and Gay Homsey. The Commission does not make
any ndings of serious corrupt conduct in respect of Paul Springe or Darren
Hacking.

The Commission is of the opinion that considera on should be given

to obtaining the advice of the Director of Public Prosecu ons with respect to
the prosecu on of John Hacking, Mr Homsey and Mrs Homsey for various
o ences.

The ICAC also makes four corrup on preven on recommenda ons

to the Rural Fire Service to help prevent the recurrence of the conduct
exposed in this inves ga on in the future.

Mutual Assistance in Criminal Ma ers Act 1987 (Cwlth) regulates assistance to foreign
countries in criminal ma ers

o A orney general can refuse request by foreign country for assistance if:
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 Ma hew Mangiapane

o O ence is poli cal

o Purpose is discriminatory
o Request would prejudice Australian sovereignty or na onal security
o O ence not recognised by Australia
o If convic on may result in death penalty, unless ‘special circumstances are
recognised’

Piracy

• Dealt with under Crimes Act 1914 (Cwlth), punishable by imprisonment for life

o O ence to operate a private controlled ship/aircra and any member of

police/armed forces may seize if they believe pirates have taken over

• Crimes (Ships and Fixed Pla orms) Act 1992 (Cwlth) sets out o ences of seizing ships
and endangering a ship/threatening to do so

• Crimes at Sea Act 2000 (Cwlth) applies state criminal laws considerably beyond
Australia’s territorial waters (normally 22.2km from coast)

War crimes

• War Crimes Act 1945 (Cwlth) as a result of WW2

Crimes against humanity, genocide and torture

• Criminal Code 1995 (Cwlth) makes these o ences

o Also Crimes (Torture) Act 1988 (Cwlth) ra es UN Conven on on Torture

(1984)

o Extends to terrorism

Interna onal measures

• Crimes against the interna onal community

o ICC

▪ Established by a treaty

▪ First convic on in 2012 of Thomas Lubanga Dylio for war crimes, 14

years
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 Ma hew Mangiapane

▪ 21st March 2016 – Jean-Pierre Bemba Gombo convicted of 3 counts of

war crimes (murder, rape, pillaging) and 2 counts of crimes against
humanity (murder and rape) – sentences yet to be delivered

o Ad hoc tribunals

▪ Interna onal Criminal Tribunal for Rwanda (ICTR)

▪ Interna onal Criminal Tribunal for the former Yugoslavia (ICTY)

• Established in 1993 by the UN Security Council to inves gate

and prosecute individuals for war crimes, crimes against
humanity and genocide commi ed during the Yugoslav con ict
in the 1990s.

o Extradi on

▪ Generally governed by a series of bilateral agreements with other

countries. Australia currently has extradi on agreements with about
130 countries.

• Transna onal crimes

o Interna onal Criminal Police Organiza on (INTERPOL); resolve crime,

INTERPOL currently lists its six priority crime areas as:

▪ Drugs and criminal organisa ons

▪ Public safety and terrorism

▪ Financial and high-tech crime

▪ Tra cking in human beings

▪ Fugi ves

▪ Corrup on

o The United Na ons Conven on against Transna onal Organized Crime

Regarded as the main interna onal instrument in the ght against
transna onal organised crime. It began opera on in 2000 and has three
protocols that countries become a party to once they sign the conven on.
These are:

▪ Protocol to Prevent, Suppress and Punish Tra cking in Persons,

Especially Women and Children
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 Ma hew Mangiapane

▪ Protocol against the Smuggling of Migrants by Land, Air and Sea

▪ Protocol against the Illicit Manufacturing of and Tra cking in

Firearms, Their Parts and Components and Ammuni on.

o Paci c Transna onal Crime Network (PTCN)

▪ Formed in July 2002 as a response to increases in regional

transna onal crime.

▪ Ini a ve of the AFP, who realised that strong rela onships were
needed between Australia and its Paci c neighbours if they were to
combat the problem of transna onal crime.

• E ec veness:

o Dependent on coopera on of states; some states may have resources to ght

transna onal crime, others may not (and are breeding grounds for such
crimes)

o Rela ve enforcement of PTCN, but resources are dwindling

o Ad hoc tribunals extremely resource-ine cient, eventually run their course

while other ma ers dealt with by ICC

o A permanent court such as the ICC is symbolically very powerful, and sends a
message that leaders or other criminals can no longer hide behind immunity
in their own state when they have commi ed appalling acts. Also, the threat
of later prosecu on may act as a deterrent, stopping rogue leaders using any
such tac cs. It also o ers enormous support to vic ms of the crimes by
a emp ng to bring to jus ce those responsible for these atroci es. The
ability of the ICC to deal with these issues is, however, ques onable; as it
cannot stop atroci es before they occur, and can only punish executors
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