CRIMINAL LAW AND JUSTICE Essay Example

  • Category:
    Law
  • Document type:
    Assignment
  • Level:
    Undergraduate
  • Page:
    3
  • Words:
    2005

4Criminal Law and Justice

CRIMINAL LAW AND JUSTICE

Criminal Law and Justice

Question 1

Introduction

For a crime to have been committed there must be an individual who acted verbally or physically against the law, legislation, or set guidelines. Concerning the relevant law or legislation acted against, a police officer is entitled to make arrests and detain the offender on such laws and legislation grounds.

Issue 1

The issue raised by the question is whether it is legal for Constable Richards to press charges against Jack for assault or Fynn over the incident involving the apple.

Law

Crime can be described as a person’s conduct perceived by the law and regulation to be sufficiently harmful to warrant the appropriate punishment of the individual through the procedural actions of courts which apply the law and legislations to safeguard the person (Kearney J in R v Salmon (1994) 70 A Crim R 536).

According to Crime Act 1900 (Part 2, section 22),

A person who assaults another person with intent to commit another offense against this part punishable by imprisonment…»

Charges against young offenders consider youth justice principles laid down by Children and Young People Act 2008 (Chapter 4, section 94). The age, developmental capacity, and level of maturity of the offenders should be considered if the offered range below 18 years old.

Application

From these two incidents of Jack assaulting police officer for arresting hid brother and Fynn throwing apple through the window, issues of offenses and crime emerge. Fynn has committed an offense against the regulation/legislation by the bus company, mounted in the bus by throwing apple off through the window. An issue that can arise from this is that the bus company can press charges on Fynn for breaking the rules by the bus company. Jack has also assaulted a police officer with an intention of causing harm to free his brother. This is an implication that Jack can be charged for assaulting a police officer.

However, the charges against Jack and his brother, Fynn, can be pressed but on consideration of the age, developmental capacity, and level of maturity of the offenders.

Conclusion

On the basis of the age and level of maturity of Jack and his brother, they are deemed immature and young. This is likely to impact on charges against them in court should Constable Richards press charges.

Issue 2

Is there a likelihood of conviction in the incident of Fynn’s theft of the bag?

Law

As been discussed, an offense arises when a person acts intentionally or unintentionally against the laws and regulation safeguarding people interest in a state. As outlined in Theft Act 1968 (section 3),

Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as an owner.”

This describes incidences of mens rea and actus reus of theft regarding the offense and the mental implication.

Application

Fynn flees the bus with a bag he thought to be his. He later realises that the bag is someone else’s. Appropriation where he decides to keep the bag even after knowing it belongs to someone else. Ignorance, negligence, amongst other characteristics associated to Fynn as he decides to keep the bag, describe mens rea and actus reus theft (William v Phillip (1957) 41 Cr App R 5).

Conclusion

Keeping someone’s property without their consent is described as theft. In this situation, Fynn has decided to keep a bag that does not belong to him. He can be convicted of theft.

Issue 3

What should the prosecution prove to secure a conviction of offensive language against Magnus?

Law

According to Summary Offences Act 2005 (section 6), every citizen has right and freedom of speech. He has right to express his opinion whether influenced by excitement or emotions. The same legislation also argues that language considered offensive should not be used in public places such as in schools and in public transport buses or trains. However, there are elements of offensive language that police officer are subjected to while interacting with the public (Summary Offences Act 1988).

Application

Magnus, just as any other citizen, has a right and freedom of speech. He is angered by the police officer making offensive remarks about him. He reacts angrily using a language considered offensive by the police officer. However, in R v Grech [2010], the word «prick» that is found by the police officer to be offensive is deemed non-offensive by the magistrate who ruled the case fore-mentioned.

As argued by the magistrate, the officer should consider the facts that the word «prick» should not be necessarily offensive to a ‘reasonable person’; the word is commonly used to express an emotional reaction, and police officers are subjected to such languages as part of their work.

Conclusion

The prosecution must prove if the language he deemed offensive have such characteristic supporting the argument. They are also supposed to show if the alleged offensive language was used in public, and the reaction of other witnesses was confirming the offensiveness of the language.

Issue 4

Did Constable Richards lawfully exercise his power of arrest on the facts?

Law

Police Powers and Responsibilities Act 2000 (Section 365), states that a police officer can arrest an offender without a warrant. The arrest if considered lawful if the intention of the police officer is to prevent a continuation of the offense in question; establish an identity of the offender through inquiry, and to ensure the appearance of the offender before the court. He can also make an arrest if he seeks to obtain or preserve evidence associated with the offense, and to prevent the criminal from fleeing, amongst others.

Moreover, Youth Justice Act 1992 argues that it is lawful for a police officer to arrest and detain a child if there is a suspicion that the child has or is committing an offense.

Application

Fynn threw an apple at a vehicle in a free runway. This act almost caused accident considering how the car swerved on the road. He then escaped. Jack assaulted Constable Richards for arresting Magnus. Assaulting a police officer is an offense. Therefore, it is lawful to conduct the arrest of the brothers (Monis v the Queen [2013] HCA 4). However, this only seems to apply to adults since under the youth justice principles. It is only lawful to arrest or detain a child only as a last option after all other options of engaging the child in his own correction have failed.

Conclusion

Making arrest by a police officer without a warrant is lawful. However, Constable Richards did not lawfully arrest the brothers. This is because he did not make attempts at correcting the children as stated under the youth justice principles in Youth Justice Act 1992.

Question 2

Issue 1

Criminalisation of sexual misconduct

Law

Summary Offences Act 1988 argues of sexual assaults and harassments as the key crimes associated with sexuality. The act also emphasises on exposure or display of or causing exposure of child pornography or pornography to children, sexual violation, and exploitation, as the main sexual crimes.

Application

Criminalization and normative theories of sexual misconduct define the crime by the causes factors and consequences. In this issue, sexual misconduct is presented by an act of people conducting or engaging in acts deemed to be sexual misconduct.

Sexual misconduct in public shows a cause of sexual offense. According to Duff, a normative theorist, exposing sexual activities or displaying portraits of sexual activities in public is immoral and against the moral wellbeing of people around as far as destruction and interference are concerned. People involved in public sexual misconduct of displaying or exposing their sexual intents cause interference and destructions against the morality of the public.

Therefore, it is a concern when individual display or expose their sexual desires and intents in public places. However, criminalizing such acts would involve considerations of the individual involved in the act. Bestiality, prostitution, and fornication, amongst other sexual misconducts, are assessed by normative theorists as sexual offenses and are subjects to the penalties of punishment by the relevant laws and legislations.

However, married couples expressing their intimate affection or relationship would be subject to assessment and evaluation before deemed sexual offense. According to Summary Offences Act 1988, sexuality becomes and offense if it violates or threatens the rights and freedom of others in the locality.

Conclusion

People involved in sexual misconducts in or near a public place or school are considered sexual offenders. Therefore, they are subject to the action of law in courts. This is due to destruction, a threat to rights and freedom of other, and immorality act, as impacts.

Issue 2

What are the mens rea component and burden of proof of sexual misconduct in public places?

Law

One of the elements of this proposed offense described in mes rea is consent. According to Summary Offences Act 1988, consent to sexual activity is defined as agreeing to a sexual intercourse involvement voluntarily. By displaying such sexual misconducts in public, a person shows consent to sexual intercourse.

Another mens rea element of this proposed offense is negligence. Individuals involved in sexual misconduct in public places neglect the possible impacts of their acts to the surrounding people. They also ignore the sense of morality. According to Australian Institute of Criminology (AIC), such negligence by these people result into sexual harassments and assaults by the other who get influenced by such public sexual misconduct.

Therefore, this changes the situation of consent in sexuality. Under section 61 of Criminal Code (Cth), such misconducts cause or result to cases of negated or vitiated consent.

Application

Just as in R v Muller and R v Clark, the proposed offense of sexual misconduct has harm and morality issues in it. Considering the definition of sexual misconduct described by the proposed bills, offenders for such offenses has argued to have overexploited their freedom to an extent that it violates the rights of others. Sexual misconduct is also deemed an invasion of privacy since it describes touching or exposing individual body parts considered to be private. It is prohibited to invade people’s privacy as far mentality is concerned. Proving the voluntary participation in the proposed offence defines the burden of proof in this situation.

Conclusion

Considering issues of privacy; morality, and overexploitation, the proposed sexual misconduct is worth making the amendments for. It violates the privacy rights of others and promotes immorality in public places. This situation can be a cause factor for other related sexual offenses.

Issue 3

Are there potential issues regarding the discretionary use of police power concerning the proposed offense?

Law

According to the Police Power and Responsibility Act 2000 (section 46), a police officer is lawfully right to conduct an arrest concerning behaviours of an individual if the behaviours have the potential to cause anxiety to people around. It also applies if the behaviour is interfering with the daily business or trade activities in the place, threaten people around the place, and if the behaviours disrupt peace and order of any even in the place.

Application

The proposed offense describes illegal behaviours with a potential threat to the emotional wellbeing of people entering of leaving the area. Sexual misconduct, as defined by the amendment bill, has the potentiality to cause anxiety amongst individual witnessing such behaviours. In Pregeli and Wurramurra v Masion (1988), sexual behaviours visible in public are considered offenses against the wellbeing of the public. The amendments protect the rights of the public as it enforces legal abilities of police officers to make arrests in the incidents of such behaviours.

Conclusion

The amendments are aimed at protecting the interest of public and prevent any potential crime that can be triggered by such behaviours. A police officer is allowed by law to make arrests if the behaviours are deemed of interruption to public stability as far as anxiety and threats are concerned.