Tips for success – HSC Legal Studies

Speaker: Adrian Shipp

Adrian.shipp1@det.nsw.edu.au

Tips for success

Tips for successIntroduction

1. Understanding the Syllabus 2. Effectiveness Criteria3. Core Topics: Crime and Human Rights4. HSC Exam Structure and Questions 5. Extended Response Paragraph Structure

Tips for success1. Understanding the Syllabus

The Principal Focus

Question 25 (15 marks) Explain the tension between community interests and individual rights and freedoms within the criminal justice system. (HSC 2011)

Tips for successThe themes and challenges

Tips for successStudents Learn About and Students Learn To

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Effectiveness Criteria

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Core Topic 1 – CrimeThemes and Challenges1. Discretion – Reporting Crime (community and

victim), Police, Department of Public Prosecutions and the courts (judges)

2. Balance of Rights – rights of the accused, sentencing, victim impact statements etc

3. Law Reform – Police Powers (Young Offenders Act 1997, Anti Bikie), Juries (Majority Verdict), Bail (application reforms) and Sentencing (Parole)

Tips for successCore Topic 1 – Crime1. Nature of Crime Focus AreasElements of Crime – Actus Reus ( Carry out the Crime), Mens Rea (Guilty Mind), Causation (Link between the accused carrying out the crime and the crime itself)Strict Liability Offence – absence of mens rea e.g. speeding, buying alcohol for children

Tips for successCore Topic 1 – CrimeParties to a CrimePrincipal in the first degree – this is the principal offender, or the person who actually commits the criminal act e.g. armed robbery takes the moneyPrincipal in the second degree – this is a person who was present at the crime and assisted or encouraged the principal offender to perform the offence e.g. armed robbery holds the security backAccessory before the fact – an ‘accessory’ will be someone who has helped the principal to plan or carry out the crime e.g. The bossAccessory after the fact – this is someone who has assisted the principal after the actual act is committed e.g. hiding in a safe house

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Core Topic 1 – CrimeSituational Crime Prevention•Police Officers patrolling•Installing bars or alarm systems at home•Installing lighting to key crime areas (Parks)•Playing classical music in shopping centres•Installing closed circuit TV (CCTV) cameras•Alarm tags installed on clothes/alarm gates in shops•Developing alcohol-free zones•Installing blue fluorescent lights in public toilets

Tips for successCore Topic 1 – CrimeSocial Crime Prevention•Improving school attendance•Education programs to teach young people criminal law•Parenting workshops for disadvantaged groups•Early police intervention

Tips for successCore Topic 1 – Crime2. Criminal Investigation ProcessPolice Powers

Law Enforcement (Powers and Responsibilities) Act 2002 NSW – reasonable grounds and code of conduct

Young Offenders Act 1997 NSW – cautions, warnings

case studies: sniffer dogs, taser guns, consorting laws (bikies)

Tips for successCore Topic 1 – CrimeBail Law

Bail Act 1978 NSW – procedures and rolesReforms in 2007 due to bail shopping

(increase in remand for young offenders and indigenous offenders)

Reforms in 2013 - a right to release for fine only offences and juvenile multiple applications

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Core Topic 1 – Crime

Tips for successCore Topic 1 – CrimeThe Adversary System•Supporters of this system say it’s fair because both sides have the opportunity to present the case•Opponents argue that in many cases the competing sides are not equal before the law, with potential imbalances in resources, skills or knowledge. The Jury may also misunderstand the case

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Core Topic 1 – Crime

Tips for successCore Topic 1 – CrimeLegal AidDietrich v The Queen 1992 in the high court established the right to a fair trial in consideration to the accused not being able to afford legal representationLegal Aid gives provides access to legal representation for people who cannot afford it. However, it is underfunded (resource efficiency) by the government.

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Core Topic 1 – Crime

Tips for successCore Topic 1 – Crime4. Sentencing and PunishmentStatutory and Judicial GuidelinesThe Crimes (Sentencing Procedure) Act 1999 (NSW) Guidelines are given to the court in order to make appropriate judgmentsMandatory sentencing - removal of judicial discretion, by setting a minimum or mandatory sentence for a particular offence

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Core Topic 1 – CrimeFactors affecting the Sentencing decision

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Core Topic 1 – CrimeTypes of Penalties

No conviction recorded, caution, fine, bond, suspended sentence, probation, criminal

infringement notice, penalty units, community service order, home detention, periodic detention,

forfeiture of assets, imprisonment,diversionary programs

Issues of Recidivism

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Core Topic 1 – CrimeAge of Criminal ResponsibilityDoli Incapax - ‘incapable of wrong’; the presumption that children under a certain age cannot be held legally responsible for their actions and cannot be guilty of an offenceAbsence of Mens Rea, set out in Children (Criminal Proceedings) Act 1987 (NSW)

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Core Topic 1 – Crime

Tips for successCore Topic 1 – CrimeRights of Children when questioned or arrestedNot interviewed for more than 2 hoursRight to Silence but police can demand for name and addressAn Adult must be present at interviewExtra warnings givenApply to the Children’s Court to take fingerprints/photographsCan be assisted to go to the police station but only if arrested

Tips for successCore Topic 1 – CrimeChildren’s CourtEstablished in 1987No JuryHears any offence other than a serious indictable offence committed by a childFollows procedures from the Children’s (Criminal Proceedings) Act 1987 (NSW)

Tips for successCore Topic 1 – CrimePenalties to ChildrenYoung Offenders Act 1997 (NSW)Deterring children away from custodial sentencesYouth Justice Conferencing has been seen more effective than incarceration

Diversionary Programs and Bail are good links back to the syllabus for young offenders

Tips for successCore Topic 1 – CrimeLimitations of International CrimeSome states may not have the resources or skills to combat sophisticated international crime (resource efficiency) greater cooperation between states needs to develop to combat cross border crimes (political will, compliance)While the ICC has been a move in the right direction, it is slow to investigate, many powers do not recognise it and has western centric bias when indicting leaders

Tips for successCore Topic 2 – Human Rights

Human Rights are entitlements that we deserve to enjoy simply by virtue of our humanity. Human rights are designed as universal, inalienable (cannot be taken away) and inherent in all peopleSuffrage – the legal right to vote in a democratic election. At first voting was only given to men with larger land ownerships.Self Determination - A collective right - group of people to govern themselves without influence or pressure from another country

Tips for successCore Topic 2 – Human RightsInternational Bill of RightsUniversal Declaration of Human Rights 1948 – soft law, foundation of international customary lawInternational Covenant on Civil and Political Rights 1976 (ICCPR) – hard law, protects common law rights and political rightsInternational Covenant of Economic, Social and Cultural Rights (ICESCR) – hard law, work rights, education and standard of living

Tips for successCore Topic 2 – Human RightsState SovereigntyThe power by which an independent state is governed and the intentional independence of a state, combined with the right and power of regulating its internal affairs without foreign interferenceState Sovereignty can either promote or impede human rights of a country’s citizens

Tips for successCore Topic 2 – Human RightsRole of Legal InstitutionsUN – most widely recognised international organisation, develops collective security however has no permanent army, limited resources and unsc use of vetoICJ – only an advisory court, countries will either comply or reject the advice given, lacks enforceabilityICC - International permanent court however lacks resources to prosecute, needs compliance from governments and only north african leaders have been indicted (western centric bias)UDHR – only soft law, in 1948 general assembly adoption 48-0 in favour with 8 abstentionsIGO – improving compliance of nation-states to follow IHL (multilateralism), however regional IGO’s must follow directions of the UN

Tips for successCore Topic 2 – Human RightsIncorporation of International Human Rights law in Australian domestic Law

International Treaty is negotiated and formed – signing of agreementAfter signing a country is now obliged to act in the spirit of the treaty, but its not bindingCountries can make the treaty legally binding and enforceable by ratifacationAustralia being a dualist system, international law becomes binding when legislation is enacted into domestic law Example: the family law reform act 1995 (cth) incorporates croc “best interests of the child”

Tips for successCore Topic 2 – Human RightsHuman Rights and AustraliaRights are protected under Statute Law (anti-discrimination legislation), Common Law ( right to fair trial, presumption of innocence) and the Constitution (Freedom of religion (s116), Right to vote (s41), Right to trial by jury (s80))

Arguments For and Against a Charter of Rights for Australia

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Sentence Structure and Rubric

Topic Sentence Elaboration Sentence

Introduce Case Study (evidence, example) SentenceExplain the Relevance of the case Study Sentence

Counter-Argument SentenceReflect (Link) back to the question Sentence

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Sentence Structure and Rubric

Topic Sentence Elaboration Sentence

Introduce Case Study (evidence, example) SentenceExplain the Relevance of the case Study Sentence

Counter-Argument SentenceReflect (Link) back to the question Sentence

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