R v Daniels

The case R v Daniels is a manslaughter case. John Bodie Daniels killed his partner Ms Janelle Tahuri when he violently pushed her into a wall on the 31^st of October 2002, early in the morning. Ms Tahuri suffered serious brain injuries and later died in hospital. The violent incident started when Mr. Daniels thought that Ms Tahuri was cheating on him. The couple had two children. There were no witnesses to the violence although neighbours could hear a commotion.

Mr. Daniels was tried for murder in the New South Wales Supreme Court. Daniels pleaded that he did not have the mens rea to kill Ms. Tahuri. To be found guilty in any criminal case the defendant must have mens rea (intention to commit the crime), actus reus (actually committing the crime) and causation (the link between the defendant’s actions and the crime). Mr. Daniels’s crime had actus reus and causation evident, but no mens rea. The jury concluded that he did not have mens rea to kill, and therefore found him not guilty of murder but guilty of manslaughter.

The case firstly had to be heard in the local court at a committal hearing. This hearing is done to determine whether or not the case is a prima facie case (enough evidence for the case to be tried). A prima facie case was found to exist. The Supreme Court has the jurisdiction to hear the most indictable criminal cases, such as serious sexual assault, murder and manslaughter. The court has appellate jurisdiction, which means it can hear appeals from lower courts. The Supreme Court’s rulings create precedent in which lower courts must follow when deciding upon a sentence. The Supreme Court is the highest state court. Someone found guilty in the Supreme Court can appeal the decision to the Court of Criminal appeal or the High Court.

(I HAVE A REENACTMENT OF THE CRIME HERE). Daniels was drinking prior to the attack and this had an impact on his actions but the judge could not conclude to what extent. Daniels acknowledged that he said to Ms. Tahuri “Go in and show the f****** kids your face”. Ms. Tahuri claimed that she was bleeding from the face at the time Daniels said this. He denied her face was bleeding and it was just a comment to show the kids her guilt. Daniels then proceeded to throw Ms. Tahuri into the wall which caused her serious brain injuries and was the cause of her death. The police were called by neighbours and Daniels was arrested that morning. The police did not have to investigate too much because Daniels was still in the house with Tahuri’s body. He was very uncooperative with the police. They arrested him that morning and he’s been in custody from that time until his trial.

John Daniels was born in New Zealand and had a disturbed upbringing (the judge said it was unnecessary to recite his childhood). He left high school before he reached year nine. He has broken the law on more than one occasion. He has been from the lower end of the socio economic scale throughout his life. These factors all contributed to Daniels criminal behaviour and he therefore fits the typical criminal profile made by the Australian Institute of Criminology. In New Zealand he had a criminal record, mainly made up of offences of dishonesty. He has been convicted in NSW three times for summary offences all arising from the same incident. For one of the offenses meant that he was placed on a 12 month bond that was still in place at the time of the manslaughter. Daniels was a ‘heavy’ user of cannabis during his earlier years and has been a heavy drinker throughout his life. Daniels has had a reasonable employment record in unskilled positions in Australia and New Zealand.

During the trial in the Supreme Court on the 14.12.04, a report from Daniels psychologist, Mr. John Machlin was used. The report said that Daniels had said that his relationship with Tahuri had experienced some difficulties. It also said that between them there had “probably been some physical stuff but not violence”.

Mr. Kirk Stenhouse, another psychologist, in a report said that Daniels had a long history of self harm but without suicidal intent. Most of the self harm incidents occurred because of relationship conflict. Stenhouse’s report also said that Daniels was ‘someone who would benefit from the KWTU (Kevin Waller Therapeutic Unit) program due to his paucity of skills of managing emotional difficulties’. ‘His intelligence is just below average and his personality is characterised by depression, a lack of self esteem and a pre occupation with securing affection, leading to “conflicting feelings such as rage, love and guilt towards others’.

Tahuri’s parents compiled a victim impact statement which explained the lasting effect of her death upon them and her two children. The judge said that he didn’t find it appropriate to regard the statement when determining a sentence.

The judge took note of previous cases such as R v Nardoni and was mindful of the observations of Spigelman CJ in R v Berg (2004). This case was similar to Daniels but the defendant pleaded guilty and made out a stronger, subjective case. The judge took this into account and said that he would impose a harsher sentence on Daniels than Nardoni. The judge also took into account the fact that there was no weapon used and that the attack was unplanned. The judge also said that there was a reasonable chance of rehabilitation. He found special circumstances to make the non parole period less than the statutory amount, although he was aware that the sentence he gave had to adequately reflect considerations of retribution and deterrence.

 The defence used partial defences, such as intoxication and stressed that Daniels did not intend to kill his partner.  Daniels was sentenced to eight years in prison with a non parole period of five years.

The sentence the judge handed to Daniels was a severe punishment in relation to the previous punishments the judge had handed down in past manslaughter cases. The judge sentenced Daniels this way so that it would deter other people from committing the same sort of crime. This case is a typical reflection of the Australian legal system because quite often the judge will sentence the accused a little more harshly than usual in order to deter people from the crime.

For the fact that Daniels case was used by the judge as a deterrent (to a degree) begs the question, have Daniels rights been infringed upon? Deterrence do not prevent spare of the moment crimes. This being said Daniels’ case should not have been used as a deterrent. Society has the right for criminals to go to prison, be punished for their crime and be protected from the offender. Daniels however has the right not to get a harsher penalty than is necessary. The rights of society and the offender in this case and in general can be imbalanced because of harsher penalties. The issue of equality is also raised because of the fact that Daniels was arrested and was kept in custody for a little over two years. It is not fair or just if someone is kept in prison for such a long period of time without even being tried. If he was found not guilty he would have spent two years in jail when he shouldn’t have. This is a major issue concerning the Australian legal system; however it is a typical reflection upon it.

Ms. Tahuri’s family would believe that the punishment handed to Daniels was not harsh enough and that justice was not achieved. If the family accepted that the case was a manslaughter case not a murder case then they would feel that the sentence was just. The reason that the family would accept the sentence is because the sentence was one of the harsher sentences placed upon the defendant by the judge.

Accessibility to the court was a problem for this case. The prosecution could not try Daniels for over two years. He was held in custody from the time he was arrested, 31/10/02 until the days of his hearing and the sentencing hearing, on the 14/12/04. Accessibility problems typically reflect the Australian legal system, with many indictable cases taking a long time before the case is heard in court. In order to try and overcome accessibility problems concerning cost and knowledge, legal aid was introduced. However legal aid was not used in any way in this case. Daniels would not have known his rights as the accused because he wouldn’t have had the knowledge. Knowledge of the legal system is a major problem that causes people to be unfairly treated at times. Accessibility concerns such as time, knowledge and cost are all problems that reflect the legal system and are common problems.

Enforceability in indictable cases is not as a troubled factor in the legal system and not in this case. As most people should feel that indictable criminal laws are enforced adequately and don’t go unnoticed.

Recourses used by the police were used quite efficiently. This can be said because Daniels was arrested, interrogated and charged without any delays or actions which stretched police resources in any way.

John Daniels’ case is a typical and relatively straight forward case that the criminal justice system has to deal with on regular occasions. Society would feel that the outcome of the case was a fair one; the family however would feel that no punishment was a fair one compared to what there punishment is. The problems associated with this case, the procedure and the outcomes are all typical reflections of the Australian legal system.

CASE - R v Skaf

FACTS -

1)    Accused – Bilal Skaf

2)    Victim/s – Four young females

3)    Details of Offence/s – 3 in total occurring on different dates:-

(a)  Offences at Northcote Park Greenacre on 10 August 2000.

Two females aged 17 and 18 accepted a lift from Chatswood, lured by the offer of marijuana. They were taken to Northcote Park, Greenacre, where they were forced to perform oral sex on eight males.

(b)  Offences at Gosling Park Greenacre on 12 August 2000.

Another victim was raped at gunpoint by two males at Gosling Park, Greenacre, having been lured there by one of the rapists, who was an acquaintance. She escaped before she could be raped by another twelve males waiting their turn.

(c)  Offences at Bankstown and Chullora on 30 August 2000.

A woman, named C at the trial (she later revealed her identity on the 60 Minutes television program) was lured from a train at Bankstown by the promise of marijuana. She was then raped at three separate locations by 14 males over a period of six hours. As a final humiliation they hosed her down with water. Racist comments were also made to her.

JUDGMENT OF: Studdert J Bell J Latham J

JURISDICTION (APPELLANT): New South Wales Court of Criminal Appeal

LOWER COURT JURISDICTION (ORIGINAL): District Court

LOWER COURT FILE NUMBER(S): 01/11/0750, 01/11/1188

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

COUNSEL:

R. Cogswell SC/D. Arnott (Crown)

J. Stratton SC (Applicant)

SOLICITORS:

S. Kavanagh (Crown)

S.E. O'Connor (Applicant)

grounds of appeal that were established: from the judgement date on the 16/09/2005

1. His Honour erred in imposing the maximum available statutory sentence in circumstances that did not constitute the worst class of case.

3. The disparity between the sentences imposed on the applicant and those imposed on his alleged co-offenders is such as to leave the applicant with a legitimate sense of grievance.

5. His Honour erred in not taking into account the fact that the applicant pleaded guilty to the two counts of attempt pervert the course of justice.

6. His Honour erred in not correctly applying the principles in Veen v The Queen (No. 2) (1987).

8. His Honour erred in finding the applicant had attempted to anally penetrate the complainant Miss C as the jury could not agree whether or not he was guilty of anally sexually assaulting Miss C and the applicant was not charged with or convicted of attempted sexual assault.

10. The sentences were individually and collectively manifestly excessive.”

“Grounds 1, 3, 5, 6, 8 and 10 have been established and the intervention of this Court is warranted. The sentences must be quashed and the applicant must be re-sentenced.”

Timeline of Court Cases and Appeals:

Between 19 November 2001 and 20 December 2001 the applicant stood trial before his Honour Judge Finnane QC and a jury, charged with two counts of detain for advantage, nine counts of aggravated sexual intercourse without consent (in company), and two counts of assault. On 20 December 2001 the applicant was found guilty on all counts.

Between 29 April 2002 and 7 June 2002 there was a second trial, again by judge and jury, in which the applicant stood trial charged with offences of detain for advantage, aggravated indecent assault in company, aggravated act of indecency in company, three counts of aggravated sexual intercourse without consent (in company) and two counts of perverting the course of justice. The jury disagreed in relation to one of the aggravated sexual intercourse counts, but the applicant was found guilty on all the remaining counts.

On 15 August 2002 and 10 October 2002, the judge sentenced the applicant in relation to all offences for which he had been found guilty. He was also sentenced in relation to two counts on an indictment from an unrelated trial. However, the convictions and sentences for these two counts were subsequently quashed by the Court of Criminal Appeal. The Court of Criminal Appeal adjusted the commencement dates of the sentences for the offences that were the subject of the second trial.

OUTCOME:

Sentence/s – Was sentenced to 55 years in gaol with 40 years non-parole in 2002. Sentence was then reduced in 2004 Court of Criminal Appeal to 46 years and then again in 2006 to 28 years and a parole period of 22 years.

COMMENTS:

"People talk about rape as a sexual crime, but in reality it's a crime of domination and contempt," "No human being should be treated in this terrible fashion, no-one."

Judge Michael Finnane

"Without minimising the gravity of the offences committed on 10 August, 2000, they cannot individually or collectively be regarded as in the worst case category of aggravated sexual assault ... ," Justices Timothy Studdert, Virginia Bell and Megan Latham said in their judgment.

LEGAL ISSUES RAISED:

1.    Jury Misconduct - Two jurors who disobeyed the judge’s directions caused the gang rape convictions of Bilal Skaf and his brother Mohammed Skaf to be overturned, and a retrial was ordered. The jurors in question miscarried the trial by conducting their own experiment at the crime scene while deliberations were taking place.

As identity was an issue in the trial, the judges found the experiment was a miscarriage of justice, saying that "in our view there must, regrettably, be a new trial because of this ground”. Because the judges decided that a retrial was appropriate in this situation, it showed not only that the judgement was fair, but was also free from bias to any side. This demonstrated the effective operation of the justice system.

·         Glanville Williams once commented on the significance of “reforms” that flow from sex cases, which have attracted the prurient interest of the press and general public. “These are notoriously the occasions on which the law tends to be bent to give expression to feelings of moral outrage” (Glanville Williams Criminal Law 3rd Edition p.182). When Bilal Skaf’s conviction was set aside by the Court of Criminal Appeal (R v Skaf [2004] NSWCCA) the court called for change to penalise recalcitrant jurors, which was approved. However, no real consideration was given to how effective the penalty provisions might be. The legal system has no idea whether the deterrent effect of penalties will prevent independent research, or merely make it harder to discover when it has occurred.
During the course of this trial, the question was raised: “Do we really need to punish members of the public who take their role as jurors too seriously?” There is a need to discourage independent research outside the evidence at trial. However, was the fact that one high profile trial had to be re-heard, sufficient justification for new criminal sanctions against jurors?

2.    Led to the passing of the Crimes Sexual Assault in Company Act - the public uproar caused by the gang rapes led to the passage of new legislation through the Parliament of New South Wales, dramatically increasing the sentences for gang rapists by creating a new category of crime known as Aggravated Sexual Assault In Company.

3.    Cross-examination of Witnesses By the Accused - During the course of one of the trials, the defendants refused counsel, claiming that all lawyers were against Muslims. Bilal and his brother insisted on a Muslim representative from Legal Aid, failing which, could have led to the contentious prospect of the defendants being able to cross examine the witnesses themselves. The situation was averted by further legislation being put through the New South Wales parliament.

·         Section 294 A Criminal Procedure Act 1986 -commenced 3.9.2003 (was not passed for R v Skaf case directly but was another case with similar issues at the time, therefore enhancing the need for the legislation)
The statutory limitation on the cross-examination of complainants by an unrepresented accused in sexual assault trials was confirmed by the Court of Criminal Appeal in R v MSK & MAK [2004] NSWCCA 308. Special Leave to appeal to the High Court was refused on 4 February 2005.

4.    Original sentence (55 years) was greater than some murder sentences – sentence was reduced as it was not the ‘worst category’. Public members asked why the legal system did not increase the murder sentencing rather than decreasing the rape sentencing.

5.    Victim impact statements – As the first trial was classified as a mistrial due to jury misconduct, a new trial was needed. However, the second trial would be traumatic for the victims, as they would have to face their attacker again. For that reason, the use of a victim impact statement was necessary, but questions were raised as to whether a court transcript would be as effective in trying to create emotions that were felt during the original trial.

·         Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2004 No 3- commenced 31.7.2004
The amendment to the Crimes (Sentencing Procedure) Act 1999 expands the category of offences in respect of which a Local Court may receive and consider victim impact statements to include some Table 1 offences (Table 1 of Schedule 1 to the Criminal Procedure Act 1986). Table 1 offences are indictable offences, which are dealt with summarily unless prosecutor or accused elects otherwise and which result in actual physical bodily harm to any person, or involve an act of actual or threatened violence or an act of sexual assault.

6.      Sperm Freezing for Serious Offenders - Another member of the gang rape had his sperm frozen at no expense so he could have a family after being released from goal (he was diagnosed with cancer and the treatment would leave him sterile). Mr Iemma was quoted as saying "I find the notion of serious criminal offenders being afforded this type of privilege totally repugnant and it will be stopped immediately." The commercial rate is about $250 a year and would now be set and the rapist be told to pay up.  NSW Premier Morris Iemma also said the Government would ban the collection and storage of the sperm of serious criminals.

7.     Cost Effective – the case was lengthy and the use of legal aid is costly to tax payers. By ordering a retrial more time and money where used, community members saw it as a waste of government funds

 Reasons for Punishing:

1.     When the case arose it was during the 2000 Olympic Games, some members of society felt that the government and legal system enforced a large sentence in order to show that Australia was a safe place to visit.

2.     The original sentence reflected the thoughts and ideas of the community towards gang rapists at the time of the court hearing. Community standards were upheld by Justice Finnane DCJ. At the time of the sentencing, society was strongly against gang rapes as there was considerably more media coverage of gang rapes than in previous times. When Justice Finnane sentenced Bilal Skaf to 55 years imprisonment he was upholding not only the facts of the case but the thoughts and feelings of the community towards the case. Community members see gang rape as a malicious and violent crime which affects the victim for the remainder of their life. As such, sentences should affect the criminal for the remainder of their life.

3.     The law system may have originally wanted to make an example out of the case to deter future criminals by imposing an excessive sentence. Therefore the question of whether the sentence was only excessive because the government wanted an example was raised?

4.     The excessive sentence heighteed tensions between Muslim and non-Muslim Australians and was seen by the Muslim community in Australia as racist. This may have been one of the reasons the sentence was reduced.

Justice Achieved:

1.    It was reported in the media that in July 2003 pictures were obtained from Skaf’s cell depicting pictures of women being sexually assaulted (including his ex-fiance) and that he also had not been showing any remorse for his actions. This raises issue of whether Bilal Skaf’s sentence should have been reduced, how can a man who shows no remorse and obviously has no respect for women be allowed back into the community in less than 25 years? In this aspect justice has not been achieved for women.

2.    Many believe that by reducing the sentence of Bilal Skaf shows that the legal system is weak and feel that although some murder sentences were less, why did the law not increase the murder penalty rather than decrease the gang rape penalty? In reducing the sentence it shows the law is inconsistent and that now, a criminal who should be in jail for life will walk out of jail, knowing that it is possible to escape the law. Again justice has not been achieved for the community as a whole as an obvious criminal will be allowed back into the community without serving what society sees as an appropriate sentence.

3.    The reduction of the sentence has deterred other victims of sexual assault from reporting the incident as the legal process for the R v Skaff case was lengthy and emtionally traumatic. Therefore by reducing the sentence victims may see it as a waste of time and emtions. In this aspect justice has not been achieved for other victims of sexual assault

4.    The fact that there was a jury misconduct and that there was a retrial displays the justice given to the accused. This aspect shows the fairness of an unbiased case or ‘natural justice’.

Quote from Sydney Morning Herald Article - ``How many times do women have to be constantly let down and disappointed by the legal system?'' Women's Health NSW executive officer, Denele Crozier, said.

The "extreme'' reduction in Skaf's sentence would confuse the community about the way rapists are dealt with by the law, she said.
"What message are we giving to other women to encourage them to come forward to find some measure of justice?'' she said.
"It's just shocking and we are outraged.''

Crime Prevention

Crime prevention is certainly better than investigating and dealing with a criminal act once it has happened. Police officers who are ‘out and about’, travelling on trains, walking around shopping centres and patrolling the streets make life more difficult for criminals. Communities, too, are becoming more active in preventing crime. For example, eliminating laneways and ‘dark’ areas in large public housing estates is an effective way of reducing crime.

Public awareness campaigns also make people more aware of ways to prevent crime. For example, signs in car parks remind people to lock their cars and take their valuables with them.

Situational crime prevention

Situational crime prevention involves making it difficult for criminals to commit criminal acts by increasing the risk of being caught, making the crime more difficult to perpetrate or making the crime less rewarding. Such prevention is often referred to as ‘opportunity reduction’.

Use of situational crime prevention is increasing, particularly in commercial settings. For example, many shops now make use of surveillance cameras and security guards, which significantly increases the risk of offenders being caught.

Steel bollards placed in front of shop windows and steel shutters make crimes such as ram raiding more difficult. Reducing the amount of cash held on premises and colour-tagging clothes limits the rewards from crime.

Many cars are now fitted with electronic tracking devices that track a car once it is stolen and then allow an operator to turn off the engine and stop the car while alerting police to its location. Similarly, most modern cars are now fitted with immobilisers that prevent an engine being turned on unless a specially coded key is used to start the engine.

Social crime prevention

Social crime prevention attempts to reduce the factors that are likely to cause a person to commit a crime. These factors can include poor parenting and/or home environment, high levels of truancy and misbehaviour at school, drug addiction and exposure to criminal elements at an early age.

Lawmakers and enforcers are beginning to see the social and economic value in social crime prevention. The most common strategy to encourage young people away from crime is the use of diversionary programs that provide a venue for alternative activities, such as sporting groups, the Police Citizens Youth Clubs and drop-in centres. Programs that target substance abuse, enable intervention in violent behaviour and provide job training to reduce unemployment have also been adopted.

Parties to a crime

Crimes are often committed by more than one person, but some people may be more responsible for the crime than others. Consequently, the law allows for this by distinguishing between the roles of each member of a group that has committed an offence. The level of responsibility held by each party to a crime determines the level of punishment.

Principal in the first degree

This is the person who actually carries out the criminal act. Such a person is usually referred to as the ‘perpetrator’. For example, if a group of people conduct an armed robbery of a service station, the person holding the gun and threatening the attendant is the principal in the first degree.

Principal in the second degree

This person assists others in the commission of a crime. The principal in the second degree is present during the actual crime but is not a main participant (they are usually referred to as an ‘accessory’). In the armed robbery of the service station, for example, this could be someone who was standing guard at the door. The courts usually treat this person in the same way as the perpetrator, giving the same sentence.

Accessory before the fact

This person helps others commit a crime by helping them plan or prepare the criminal act. However, they are not present at the time the crime is conducted.

In the example of the service station robbery, this person may have gathered information about the location of the safe and the timing and frequency of the security guard’s visits. The court may still impose the same penalty on this person as on the others.

Accessory after the fact

This person helps criminals after they have committed a crime, but is neither present during the crime, nor aware of it beforehand. The law recognises this offence only for serious crimes, such as murder and armed robbery. In the service station case, this person may have helped the others to elude the police or may have got them a new car. The courts would give this person a lesser punishment than that given to the others.

Factors affecting criminal behaviour

Most people are conditioned to follow the law by their parents and educational institutions. Consequently, for the majority of people the concept that laws must be followed is developed from an early age. However, in spite of this there are wide variations in the degree to which people actually do comply with the law.

It is commonly suggested that people obey the law because they think that not obeying it would be harmful to society. The logical opposite of this is that those who break the law do not consider their actions to be harmful to society. However, it is hard to see how a murderer can think that the act of murder does not harm society. It is more accurate to suggest that these people do not care whether or not their act harms society. Other people may believe that their ‘criminal’ act may actually benefit society as it rids society of some perceived ‘menace’.

Social and economic factors

The majority of people recognise that it is in their own best interests to preserve society. They benefit materially from society and also gain some degree of safety by being a member of it. However, people who are disadvantaged perceive fewer reasons to obey the laws that hold our society together. For example, someone who is poorly educated or who has suffered family breakdown or physical abuse may see society as being the cause of their problems and therefore feel no desire to obey the laws established for its protection.

Genetic theories

One of the more controversial theories about the cause of criminal activities is based on the concept that certain genetic differences may result in criminal behaviour.

This is not an entirely new concept—in the nineteenth century it was believed that the shape of the skull and the size of the nose could determine a criminal.

Some studies have shown that certain genetic characteristics may result in a greater chance that the person will engage in criminal activity. However, other studies have shown no link between genetic make-up and criminality. The most that can be said is that it is possible that some people commit more crimes than others because of their genetic make-up. Other factors are, however, much more important.

The theory of differential association

A sense of moral duty is one of the main reasons for people obeying laws.

Most people think that committing a crime is immoral. However, a person’s morals are a product of their environment. If a person has lived in an environment where there is no respect for law and where criminal behaviour is normal, their moral views are likely to

reflect this. Therefore, the theory of differential association can be summed up as stating that a person who is exposed to an environment in which criminal behaviour is normal is more likely to become a criminal. This is particularly so for children whose parents have shown no regard for the law. It is often suggested that if a child is brought up in a home where criminal activity is common the child is more likely to engage in criminal activities.

Other theories that have emerged from differential association include the 'anomie theory', which states that a person who has become alienated by society is more likely to disregard the laws of that society. The concept of subcultures has also emerged. A subculture is a culture that exists within a wider society, but which has different values and morals from the mainstream (gang culture is an example of this). A member of the subculture is expected to comply with its values and norms rather than with mainstream laws.

Political factors

There have always been groups in any society who have challenged the authority of the government and, by extension, the laws of that government. This may take the form of peaceful demonstration, but in extreme cases it can lead to violence, such as terrorist actions, violent demonstrations and assassination. For example, a series of violent protests, which saw thousands of cars torched, took place among the migrant population of France in 2005. Some migrant leaders argued that their people were so frustrated with racism and disadvantage that violent protest was the only way to have their concerns dealt with. Sometimes, politically motivated criminal activity may be considered justifiable (e.g. Nelson Mandela was declared a criminal and sentenced to prison for his actions against the racist apartheid government of South Africa).

Self-interest and greed

Our society has become increasingly materialistic and consumer-driven. As a result it is now obvious that many criminals are simply motivated by greed—some people take things just because they desire them. The common belief is that most thieves are poor and unemployed, but the majority of white-collar crimes are motivated by greed and self-interest.

Types of offences

There are three main types of offences: major indictable, minor indictable and summary. The most common offence are dealt with in the Magistrates Court. These offences are relatively minor and are principally summary offence - although included in this category are 'minor indictable' offences which are usually dealt with in the Magistrates Court but, if a defendant requests, may be dealt with in the District Criminal Court. For information about how charges are dealt with in court, see Court - Criminal Matters.

Various Acts create these common offences, but in this section only those offences created by the Summary Offences Act 1953 (SOA) and the Criminal Law Consolidation Act 1935 (CLCA) will be discussed.

Although many offender are fined or given bond, many are sent to prison. These convictions remain on police records, and employment applications often require them to be disclosed. Many of those convicted are the inarticulate, the young, the poor, the mentally impaired and the homeless, see effects of criminal convictions.

Questions of law may be raised in relation to these offences, although many cases simply depend on the facts and circumstances. As for all criminal offences, the prosecution (most often the police) must prove its case beyond reasonable doubt.

Summary Offences

Crimes which can only be heard and decided by a magistrate in the magistrates court are called summary offence. In general, these offences are less serious than indictable offence and the penalties that can be imposed are not as great. Summary offences make up the majority of the so called common offences, see common offences. A summary offence is defined by the Summary Procedure Act 1921 [s.5] as:

• offences not punishable by imprisonment and having a maximum fine of less than $120 000
• having a maximum imprisonment of two years
• including most dishonesty offences involving $2500 or less (even if the maximum imprisonment is more than two years), but not including robbery, or offences of violence, or an offence that is one of a series of offences of the same or a similar character involving more than $2 500 in aggregate.

Examples of summary offences are disorderly behaviour, driving under the influence of alcohol or a drug and minor criminal damage to property. People charged with summary offences cannot be tried by juries even if they would prefer it. Because there is much expense and delay involved in running a trial by jury, many new offences are made triable only by a magistrate.

There is a time limit of two years to lay a complaint for a summary offence or six months if an expiation notice may be given for the offence [Summary Procedure Act 1921 s.52].

Minor Indictable Offences

Indictable offence are divided into major indictable offence and minor indictable offences. Major indictable offences must be dealt with in the superior courts (District or Supreme). Minor indictable offences are dealt with in the Magistrates Court unless the defendant chooses to have the charge dealt with in a superior court. This is an important decision, and should only be taken after receiving legal advice.

If dealt with in the magistrate court, minor indictable matters are prosecuted by the police. If the defendant elects for trial by jury, the Committal Unit, staffed by solicitors from the State Director of Public Prosecutions (DPP), takes over the conduct of the matter at the magistrates court. The DPP has the conduct of the matter once it reaches the District or Supreme court.

Minor indictable offences are defined in the Summary Procedure Act 1921 [s.5] as:

• offences not punishable by imprisonment and having a maximum fine exceeding $120 000
• offences with a maximum imprisonment of five years
• offences with a maximum imprisonment greater than five years, being one of the following:

-          an offence involving interference with, damage to or destruction of property where the loss resulting from commission of the offence does not exceed $30 000

-          aggravated assault causing harm

-          indecent assault (where the victim is 14 years of age or older)

-          dishonesty offences where the amount involved is $30 000 or less (but not robbery or offences of violence)

-          serious criminal trespass where the intended offence is an offence of dishonesty (not being an offence of violence) involving $30 000 or less, or an offence of interference with, damage to or destruction of property involving $30 000 or less.

Some examples of minor indictable offences are listed below, with the relevant sections of the Criminal Law Consolidation Act 1935 noted:

• Theft and receiving s.134 ($2500 - $30 000 total)
• Deception s.139 ($2500 - $30 000 total)
• Serious criminal trespass — places of residence s.170; non-residential places s169
• Illegal use/ interference with a motor vehicle (subsequent offence) s.86A
• Aggravated assault causing harm s20(4)
• Indecent assault s.56
• Causing harm s.24
• Stalking s.19AA
• Gross indecency s.58
• Property damage s.85 (less than $30 000 but more than $2500).

Major Indictable Offences

An indictable offence is one that guarantee the defendant the right to a trial by jury. Indictable offence are generally the more serious crimes, and penalties are generally greater than for other offences. Major indictable matters can only be dealt with, whatever the defendant is pleading, in the District or Supreme court. Some examples are murder, robbery, rape, unlawful sexual intercourse, dishonesty and damage property offences (including arson) where the amount involved exceeds $30 000.

The most serious offences, murder, attempted murder and treason, are dealt with in the Supreme court. Other major indictable offences are dealt with in the District court.

Before a person charged with an indictable offence goes to trial, there is usually a committal hearing at which the prosecution's evidence is presented to see if there is enough evidence upon which a conviction could be founded.

There is no time limit to lay a charge for an indictable offence. From 17 June 2003, this includes sexual offences which are alleged to have occurred before December 1982 (these alleged offences were previously immune from prosecution).