Legislations. Courts and Policing
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Using a news article provided by Lawson, C. (2010) from the Sydney Morning Herald, a case study will be analysed in relation to its criminal offence to identify its criminal liability. The essay will also elaborate police powers in relation to arrest, search, seizure and questioning and other police procedures that are relevant when dealing with the offence. The essay will then elaborate and identify the alternatives of punishment that can be handed out to the offender.
To start the body of the essay, it is essential to elaborate the principles of the rule of law. According to Diceys explanation of the rule of law, no one is above the law, the rule of law also implies the notion of innocence until proven guilty and the impartiality of magistrate between the prosecution and defence in the criminal justice matter (Thomas, G. 2000). This suggests that the actions taken by police constables must be conducted in responses that are legitimate under the formal statute. This also supports Edwards (2005, p.18), quote “Police can only enforce the law as it stands”. Furthermore, the magistrate in the criminal matter must act impartially between the prosecution and the defence by critically examining whether the evidence was lawfully obtained and must sentence the offender under the formal written legislation and not from a substantive viewpoint. The quantum of proof or the burden of proof lies within the prosecution which in this case lies with the police constable in the given scenario. Under the general rule in criminal law, the defence cannot be convicted of an offence unless the subject had been tested beyond reasonable doubt that he/she is guilty of an offence. From the news article provided by the Sydney Morning Herald (Lawson, 2010), it appears that the main offence committed is a destruction and damage of a property. It is a criminal offence evident on the Crimes Act 1900 under section 197 (1) (a) that states “A person who dishonestly, with a view to making a gain for that person or another, destroys or damages property is liable to imprisonment for 7 years”. As stated above the burden of proof lies within the prosecution which in this case lies with the police constable. For the accused to be charged under the offence of section 197 (1) of Crimes Act 1900, there are four key points that needs to be proven by the police constable present in the scene (Kothrakis, K.). The first point that needs to be proven is that whether the accused did damage or destroyed the property which is an element of “Actus Non Facit Reum” or what is also know an Actus Reas. The Actus reas is the physical element of the prohibited conduct. In the case provided by the news article, the element of Actus reas is the actual physical conduct which was the person eating, breaking and/or damaging the items in the supermarket. This element of the offence can easily be proven by evidence provided by an eyewitness or a surveillance camera. This element may also be proven by the use of search and seizure which is an authority given to police officers. Under section 21 (1) (a) of LEPRA, police officer may stop and search a person to seize things without warrant if under reasonable grounds he/she suspects that the subjected person has anything on his/her possession anything stolen or unlawfully obtained. In the given scenario, the item to be searched and seized is the stolen, damaged or destroyed item from the supermarket. However, before this authority is to be exercised by any police officer, the police constable must comply with section 201 of LEPRA. Section 201 (1) (b) of LEPRA states that a police officer before exercising a search and/or a seizure must supply their details as to their name and place of duty. The other point to be proven by the police constable is that the accused did “intentionally” conduct the criminal behaviour. This is the mental element of the offence which is known as the “Nisi Mens Sit Rea” or the Mens Rea where the prosecution must prove that the accused did have a guilty mind. To prove this particular conduct, the police constable must prove that the accused “voluntarily” or chose to conduct the criminal behaviour or actions. A person with a mental disability which lacks the capacity to control his/her actions and behaviour is not guilty of the offence (Insane automatism). The third point that needs to be proven by the police is the accused damaging the property with no lawful excuse on doing so. The fourth and last point that needs to be proven in able for the accused to be charged by the police constable is the fact the item that was damaged or destroyed in the act belonged to another person. In the case scenario, the item that was damaged, destroyed or being consumed belongs to the supermarket until it is purchased by the buyer.
The next step once the constable had proven that the accused is guilty of the offence is to decide what kind of punishment will be given to the offender based on the intensity of crime committed and police use of discretion or original authority. Embodied from a law case of Enever v The King (1906) “powers of a constable are exercised by virtue of his office and cannot be exercised on the responsibility