BANKSTOWN
COLLEGE OF TAFE
HSC LEGAL STUDIES
Teacher: Naz Osta
E-Mail: nazosta@hotmail.com
HSC LEGAL STUDIES
Course Content
Duration
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Introduction to Legal Studies
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2 weeks
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Law and Justice
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4 weeks
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Human Rights
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4 weeks
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Crime
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10 weeks
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Family Law
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5 weeks
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World Order
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5 weeks
TOTAL:
30 Weeks
HSC ASSESSMENT CALANDER
Components
and Weightings
Task 1
23 feb
PC Exam
Introduction to
Legal Studies
Exam
10 %
Assignment
25 %
Research
Essay
25%
Trial HSC
40%
TOTAL
100%
Task 2
14 april
Task 3
23 june
Task 4
11 august
Task 5
TBA
Law and
Society
Crime
Family
Law
All
Topics
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.
2.
3.
4.
Laws regulate society by telling us what we can do and when.
Laws enforce values society deems important.
Laws protect members of the community from harm.
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.
2.
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4.
Laws can be enforced.
laws are accepted by the community.
Laws are binding on the community.
Laws are discoverable. ( no hidden laws, you can go out and find out about
them).
5. Laws are in the public interest.
6. Laws reflect morality.
SOURCES OF LAW
1/ COMMON LAW: judge made law based on Doctrine of Precedent. The system of Law
used in Britain and its colonies.
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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 Postcost of Postage).
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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.
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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.
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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].
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.
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Executive- government responsible for putting the laws passed by the
legislature into effect.
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Legislature- is parliament which makes statute law
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Judicial- courts which solve disputes and interpret statute law
The Court System
High
Court
Supreme
Court
District Court
Local Court
Topic 3: CRIMINAL LAW
• 3.1 Types of Crimes
1. Crimes Against Persons
Homicide
~ Murder
~ Manslaughter
~ Infanticide
~ Death by Reckless Driving
Assault
Sexual Assault
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2. Against Property
Larceny
Breaking and Entering
Robbery
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3. White Collar Crime
Tax Evasion
Computer Crime
Insider Trading
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4. Crimes Against the State
Sedition
Treason
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
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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
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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
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Constitutional separation of powers
Federal Parliament doesn’t have the Constitutional power to make
general criminal laws, but it does make some laws eg Customs Act over
drug importation
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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.
Parties to a Crime
A principal is directly involved in the commission of the crime
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First Degree (the person that carries out the act)
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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
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Before the Fact (knows the crime is about to be committed)
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After the Fact (knows the crime has been committed and
provides assistance to the criminal)
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.
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.
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in strict liability cases no mens rea needs to be proven.
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 V’s apphrehsion
of harm be well-founded, but V’s actions in trying to
escape must also have been reasonably foreseeable.
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 selfdefence 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 victim’s religious beliefs were
unreasonable.
CRIMINAL DEFENCES
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Complete Defences: The defendant completely walks free
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
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)
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.
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• Case 1: R v BROWN (assault occasioning actual bodily harm)
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• 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.
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• Case 2: R v WILSON, husband branding his initials on his wife’s
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
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’.
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
The Criminal Process and the Role of
Discretion
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-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.
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 Q’s.
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.
Creating Social Order
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-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 dept’s issue pamphlets etc to
educate the nation on the law.
Regulation – some laws exist to ensure people and environmental safety e.g. health regulations, OH&S.
Coersion – sanctions coerce people into obeying laws – fear of punishment.
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;
Circumstances of the offender (Subjective features) e.g. is the offender a minor? Single parent?
Convicted criminal or first offender? Disability? Drug user? Etc.
Aggravating and mitigating factors.
Judicial discretion and the limits of discretion – unless mandatory sentencing, discretion by judges can
be used.
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.