BANKSTOWN COLLEGE OF TAFE HSC LEGAL STUDIES

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BANKSTOWN COLLEGE OF TAFEHSC LEGAL STUDIES

• Teacher Naz Osta
• E-Mail nazosta_at_hotmail.com

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HSC LEGAL STUDIES

• Duration
• 2 weeks
• 4 weeks
• 4 weeks
• 10 weeks
• 5 weeks
• 5 weeks
• 30 Weeks

• Course Content
• Introduction to Legal Studies
• Law and Justice
• Human Rights
• Crime
• Family Law
• World Order
• TOTAL

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HSC ASSESSMENT CALANDER
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Introduction to Law

• What is Law?
• Rules that apply to everyone that can be
  enforced.
• Where does our law com from?
• Parliament, courts, the constitution and
  delegated legislation
• Why do we need law? Is law necessary?
• 1. Laws regulate society by telling us what we
  can do and when.
• 2. Laws enforce values society deems important.
• 3. Laws protect members of the community from
  harm.
• 4. The law provides a venue for resolution in
  times of conflict between individuals.
• 5. Laws enforce rights and gains compensation.
• What are the characteristics of law?
• 1. Laws can be enforced.

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SOURCES OF LAW

• 1/ COMMON LAW judge made law based on Doctrine
  of Precedent. The system of Law used in Britain
  and its colonies.
• PRECEDENT A binding decision made on a
  present case based on a previous court case with
  similar facts.
• Judges are bound by the ratio decidendi which is
  the reason for a judgement
• Judges are not bound by the obiter dictum which
  is a subjective comment, more personal input.
• 2/ STATUTE LAW also known as Legislation, or
  Acts of Parliament. Statute Law is made by
  Parliament. Eg. Native Title act (1993)
• 3/ DELEGATED LEGISLATION laws made by
  subordinate authorities (eg Australian Post-
  cost of Postage).
• Advantages more effective, quicker, saves time
  by allowing persons of bodies with relevant
  expertise to make decisions about mundane matters
  etc.
• 4/ CONSTITUTION describes how the country should
  be run and outlines how Power is divided and the
  rights it gives its citizens.
• To bring together the 6 colonies in a federation
  (power sharing) Created a new level of govt, the
  Commonwealth and set out rules for the relation
  between this new level (federal) and the states
  (former colonies).
• 5/ INTERNATIONAL LAW governs the interactions
  between nations. If a nation breaches
  international law, it can be dealt with by the
  international community through Trade Embargoes,
  Denial of Diplomatic Recognition, Trade Sanctions
  and Military Action.
• THE UNITED NATIONS acts as a global security and
  development organisations. The UN maintains
  global peace and security. The General Assembly,
  Security Council, the Economic Social Council,
  the Secretariat and the Trusteeship Council.

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THE CONSTITUTIONAL SYSTEM IN AUSTRALIA

• DIVISION OF POWER Powers are divided between
  the States and the Federal Government.
• 1/ Residual Powers are the powers that the
  states retained after federation, eg police,
  local councils
• 2/ Concurrent Powers areas over which both the
  states and the Commonwealth have legislative
  power, eg education and health
• 3/ Exclusive Powers federal parliament has
  exclusive power over immigration and defence.
• SECTION 109- THAT WHERE A CONFLICT ARISES,
  COMMONWEALTH LAW PREVAILS OVER THE STATE LAW
• SEPARATION OF POWERS Power is distributed
  between the 3 arms of government that is between
  the legislature, executive and the judiciary.
• Executive- government responsible for putting the
  laws passed by the legislature into effect.
• Legislature- is parliament which makes statute
  law
• Judicial- courts which solve disputes and
  interpret statute law

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The Court System
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Topic 3 CRIMINAL LAW

• 3.1 Types of Crimes
• 1. Crimes Against Persons
• Homicide Murder Manslaughter Infanticide
  Death by Reckless Driving
• Assault
• Sexual Assault
• 2. Against Property
• Larceny
• Breaking and Entering
• Robbery
• 3. White Collar Crime
• Tax Evasion
• Computer Crime
• Insider Trading
• 4. Crimes Against the State
• Sedition

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5. Public Order Offences Offences that disrupt
the activity of society 6. Traffic Offences
Death By Reckless Driving Other offences like
speeding, parking etc 7. Preliminary
Offences Attempt of crime e.g. attempted
murder Conspiracy 8. Regulatory
Offences Breaking of a regulation 9. Victimless
Crimes Only harms perpetrator. eg. prostitution
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Sources of Criminal Law

•  
• Most criminal law is made by the state. Under the
  constitution the Federal Parliament does not have
  specific power to make criminal law. They do
  however in relation to criminal laws that come
  under their exclusive jurisdiction from section
  51. For example importation of drugs from
  overseas comes from the Customs Act 1901 (Cth).
• The main sources of criminal law come from
• Statute law
• made by NSW Parliament (with most under the
  Crimes Act) if no conflict with Commonwealth law
• Common Law
• judges using their discretion, making decisions
  which bind because of the laws of precedence
• codification combining all law (both common and
  statute) into one act. Result code law
• Constitutional separation of powers
• Federal Parliament doesnt have the
  Constitutional power to make general criminal
  laws, but it does make some laws eg Customs Act
  over drug importation
• Some states of Australia (Qld, Tasmania, W.A)
  have combined all their criminal law (statute /
  common law) into one Act of parliament. This
  process is called codification or code law.

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Parties to a Crime

• A principal is directly involved in the
  commission of the crime
• First Degree (the person that carries out the
  act)
• Second Degree (assists in the commission of
  offences)
• An accessory to the crime is a person who knows
  about the criminal act and provides some form of
  assistance
• Before the Fact (knows the crime is about to be
  committed)
• After the Fact (knows the crime has been
  committed and provides assistance to the
  criminal)

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Elements of Crime

• Mens Rea (guilty Mind)
• 3 types of mens rea.
• 1. Intention Person deliberately intended to
  commit a crime
• 2. Recklessness Person was aware of the danger
  of their action and acted anyway.
• 3. Negligence When a person fails to see the
  rest of their action, a risk that an ordinary
  person would have seen under the same
  circumstances.
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• Actus Reus (Guilty Act)
• This is the performance of a guilty act or an
  omission that breaks the law.
• the performance (act/duty) that breaks criminal
  law must
• take place
• be done by the accused
• be voluntary In Jiminez v R, the high court held
  that falling asleep at a wheel is involuntary
  conduct. Other examples include being deprived
  of free choice and a reflex action.
• in strict liability cases no mens rea needs to be
  proven. 

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Causation The act that was performed must be the
cause of the crime. The act must be ultimately
responsible for the offence. Novus Actus
Intervenes. Intervening Act   In R v Hallet (Act
of god), the victim drowned after the accused
assaulted him and left on the beach, whereby an
incoming wave drowned him. The accused argued
that the victim died via the drowning (Novus
Actus) and not the assault. This was rejected by
SA Supreme court arguing that the conduct of the
accused was a substantial and operating cause of
death and that action of the sea would not have
broken the chain of causation as it was a natural
cause as distinct from an act of god (tidal
wave).   In Royall (Self- preservation), D was
charged with the murder of a woman who fell from
the bathroom window of her 6th story flat as she
feared her attacker. The high court (Mason CJ)
held that her conduct was not a Novus because the
accused had induced her into a well-founded
apprehension of physical harm such as to make it
a natural consequence (reasonable) that the
victim would seek to escape. Therefore not only
must Vs apphrehsion of harm be well-founded, but
Vs actions in trying to escape must also have
been reasonably foreseeable.  
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In R v Pagett (Preservation of another) D used
his girlfriend as a shield to protect himself
form police gunfire. D fired at police, who fired
back in self-defence and killed the girl. D
argued that a 3rd party (police) had been the
operating and substantial cause of death. It was
found that the police actions were involuntary
and could not break the chain of causation
because it was an act of self- defence and done
in execution of legal duty and it was reasonably
foreseeable.   In this case, if the police
officer were a specialist target shooter who
missed, resulting in death, then it would be a
Novus Actus because this is not reasonably
foreseeable.   In R v Blaue (Subsequent medical
treatment), the victim was stabbed but refused a
life-saving blood transfusion on religious
grounds and subsequently died. The English Court
of Criminal Appeal held that the eggshell skull
principle means the whole person (mental and
physical) and therefore the accused could not
argue that the chain of causation is broken
because the victims religious beliefs were
unreasonable.
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CRIMINAL DEFENCES

• Complete Defences The defendant completely walks
  free
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• Duress
• Where the defendant claims that the criminal act
  committed was due to threats or injury to
  themselves by others. The threat can be to the
  defendant or to another person.
•  
• Necessity
• The defendant claims that the crime committed was
  done to stop a more serious crime from occurring,
  or to stop a more serious danger. R v Dudley and
  Stephens, stated that necessity was no defence to
  murder.
• Mental illness (Insanity)
• The onus of proof for insanity lies with the
  defence. A person does not have the necessary
  mens rea (intention).
• McNaughten Case, a person is mentally insane when
  they cant differentiate between right or wrong

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DEFENCES

•  
• Automatism
• A defence used where a person was unable to
  control their actions causing a criminal action
  to occur. A person who has no control their
  bodily actions.
• Accident and Error
• A reasonable person in the same situation would
  have made the same mistake. Eg.under age sex.
• Self-defence
• Reasonable force can be used in the defence of
  oneself to protect property or to stop a serious
  crime from occurring. The onus of proof lies with
  the prosecution who must disprove Self defence
  beyond reasonable doubt. The main issue with
  self-defence lies in determining what is
  reasonable force. The accused does not have to
  wait until the initial assault has commenced. In
  some circumstances they may act pre-emptively
  where the attack is believed to be imminent.
  (Conlon)

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DEFENCES

• Consent
• The defendant claims that they acted with the
  victims consent. The defence can either be
  complete, absolute or partial. It is often used
  in sexual offences.
•  
• Case 1 R v BROWN (assault occasioning actual
  bodily harm)
•  
• Involved sado-masochistic homosexuals who
  consented to acts of violence towards each other.
  The House of Lords found that consent was no
  defence, public morality and their disapproval of
  such conduct swayed them. (Lord Templeman)
  however Lord Mustill and Slynn (in dissent) were
  of the opinion that criminal law should not
  interfere with private personal morality.
•  
• Case 2 R v WILSON, husband branding his initials
  on his wifes bum with her consent. English Court
  of Appeal, quashed conviction of assault
  occasioning actual bodily harm, because of no
  aggressive intent by husband and not in public
  interest to interfere in private martial affairs

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Defences

• Partial Defences The defendant does not
  completely get off
• Provocation
• A defence where the accused was provoked by the
  victims into committing a crime. The offender
  looses self control and acts out of rage. In NSW
  provocation is only used for murder to
  manslaughter.
• Diminished Responsibility
• The defendant acted while mentally ill or
  disabled and so is not entirely responsible for
  his or her actions. The defendant is not mentally
  ill to the extent required in the defence of
  mental illness.
• R V Desouza, a man on steroids failed in his
  attempt to use this defence due to roid rage.

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Defences

• Intoxication
• A normally sane person is so affected by alcohol
  or other drugs that he or she did not know what
  he or she was doing. Self-induced intoxication
  will generally not be taken into account when
  determining criminal liability for murder or
  manslaughter but intoxication by accident or
  because of a prescribed drug may be considered by
  the court as a defence to other crimes.
• Homosexual Advance Defence
• R v Thomas Green

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The Criminal Process and the Role of Discretion

• -Lots of crimes but not all reported or
  investigated. Police use discretion (take action
  according to own judgement) to decide which cases
  to investigate resource efficient. Judiciary,
  Judges, defence lawyers and Prosecutors also have
  discretion.
• -most crimes are reported by citizens.
• Investigation discretion used. Police have
  investigation powers to
• Detain and question people who they suspect has
  committed a crime
• Search property and seize evidence that can be
  used in court.
• Within legal limits use telephone taps and video
  cameras.
• Arrest Crimes Act allows police to arrest
  person they reasonably suspect of committing a
  crime. People under arrest have certain rights
• Silence
• Not to be searched only with a warrant
• To be released from custody if charge has not
  been made within reasonable time.
• The right for confessions to be free and
  voluntary
• The right for a minor to have an independent
  adult person present
• The limited right to legal advice
• Charge If police are satisfied that suspect has
  committed crime, can be taken to police station
  and charged.

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Bail The guarantee given by suspects that they
will appear at court later date or forfeit money.
Bail Act 1978 (NSW). -some cases, bail is granted
automatically unless the person Was drunk or
injured Already has a conviction Is in danger of
reprisal and needs protection Is a danger to
public The offence is too serious Plea Guilty
sentencing hearing character witnesses (to
mitigate) -Non-guilty accused held on remand
(unless bail) case is defended in court
verdict. -plea bargaining accuse agrees to plead
guilty to a lesser charge. Hearing Committal
hearing evidence is presented before a
magistrate to determine prima facie. - If enough
evidence trial proceeds in appropriate
court. IN COURT Rules of Evidence hearsay,
character, opinion, leading/double Qs. Trial
Procedure prosecution must prove beyond
reasonable doubt. Adversary system 2
adversaries opposing each other. Exam in
chief, Cross examination Role of juries. Jury Act
1977 (NSW). 12 jurers chosen from a larger group
those liable for discrimination removed etc,
must come to unanimous decision (if not hung
jury process begins again), decide
guilt. Appeals heard in court above. Only can
be based on a point of law - not discontent with
outcome e.g. wrongful procedure, misdirection of
jury.
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Creating Social Order

• -Aim of the Legal system to create order in
  society.
• -informal things like family, school, work,
  religion and media also help create social order.
• -When these things fail criminal law provides the
  inducement to comply. There are other formal
  ways to create social order before imprisonment
• Education people must be educated about law.
  Civics has been introduced as a compulsory
  subject in junior levels of school. HSC Legal
  Studies also provides education. Govt depts
  issue pamphlets etc to educate the nation on the
  law.
• Regulation some laws exist to ensure people and
  environmental safety e.g. health regulations,
  OHS.
• Coersion sanctions coerce people into obeying
  laws fear of punishment.
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• The Sentencing Process
• -accused can be found guilty by a magistrate or a
  jury.
• The Hearing
• After conviction the judge reconvenes court for
  the sentencing hearing
• Evidence additional evidence such as reports
  from psychiatrists and psychologists, character
  reference, standing of the accused in the
  community, hearsay evidence may be used.
• The role of the prosecutor in trial, role is
  ensure conviction. Now it is to ensure judge has
  all relevant info like prior convictions. Crimes
  (Sentencing Procedure) Act 1999 (NSW) allows for
  presentation of impact on victim report.
• Role of the Defence ensure accused receives
  most appropriate sentence.
• The Victim impact.
• Factors Affecting the Decision
• Purposes of punishment punishment must fit
  crime.
• Circumstances of the Offence (Objective features)
  i.e. facts of the crime were weapons used?
  seriousness of the crime etc

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Enforcing the Law through Punishment. Purposes of
Punishment. 5 categories Rehabilitation reform
offender. Deterrence prevent or discourage
criminal behaviour through punishment. Retribution
an eye for an eye Incapacitation most
commonly imprisonment restricts freedoms and
activities of prisoner. Redintegrative shaming
shaming the perpetrator into not re committing
the crime. E.g. confronting the victim. Used a
lot with young offenders.