State Ranking Legal Studies Crime Essay

In this post, I take you through a crime essay which I wrote. Bear in mind that some legislations or facts may be out of date for the current HSC but the main thing is to look at how I structure my response/answer the question.

Post written by Wayne Kwok (13th in the state Legal Studies 2015). See all articles first and personally get in touch with our state rankers here

Essay question:

“To what extent does the criminal trial process allow for justice to be achieved?“
First thing to note is that this is a question ripped straight from the syllabus dot point on the ‘criminal trial process’. If you’ve prepared in the right way, you should see this question and immediately be able to bring to mind a few issues/syllabus dot points which you will talk about.

The criminal trial process is one which is both complex and contentious, and has to some extent, achieved justice for parties involved. This is clearly evident in the use of defences and majority jury verdicts in the trial process, which each provide differing levels of justice for both victims and offenders overall.

There is no need for an overly long introduction in Crime essays, since you want to move onto your analysis as quickly as possible. All that’s really required in an intro is to state what your view on the question is (in this case, that justice has been achieved ‘to some extent’), and to ‘signpost’ the specific issues or legal mechanisms you will be discussing in your essay (here, defences and majority jury verdicts).

Within the criminal trial process, defences are paramount, as they allow the accused to be fairly tried; but it is also critical that such defences are able to achieve a sufficient level of justice for victims. For example, the defence of mental illness is a complete defence which states that an individual was psychologically unfit and thus unable to comprehend or understand the nature of their crimes — lacking the requisite mens rea. Such a defence arguably allows for justice to be achieved for the accused, since their impaired state of mind is taken into full consideration in determining a sentence. The result of this is that the rehabilitation of the accused is foregrounded, since, under the Mental Health Act 1990(NSW), any person who successfully uses this defence must be confined to a mental institution until the justice is fully convinced that the person is reformed, or no longer a threat to the community, thus also providing justice to the victim in a sense.

The first half of this paragraph basically outlines the advantages or benefits of having the defence of mental illness in the trial system. It begins with a brief topic sentence which sums up the paragraph, followed by another sentence which defines the issue briefly. This is all that is required in terms of description — you always want to get onto analysis promptly. As always, you should try to make reference to specific legislation where possible, and to explain what purpose the legislation ostensibly has. The next section of the paragraph deals with the perceived problems with the defence system; as outlined in my previous post, the most efficient way of structuring Legal Studies essays is to do a ‘pros and cons’ approach, comparing both the advantages and disadvantages of contentious legal mechanisms or issues, then coming to some kind of tentative conclusion.

However, there is also a wide perception that this defence is an impediment to the achievement of justice, since the accused is not adequately punished for their actions compared to if they had not been suffering from a mental illness. There is also a fear that this defence might be exploited by offenders who do not genuinely suffer from such conditions. However, as BOCSAR reported, mental illness as a defence is one which is generally difficult to prove, requiring a high standard of proof. In addition, mental illness on its own is often insufficient as a defence; in R v Farrow (2014), where Farrow was accused of murdering his ice dealer, the judge ruled that despite Farrow being under psychosis whilst committing the murder, he was still aware that the “act was wrong”, and subsequently received a murder charge nevertheless. Hence, it is clear that the defence of mental illness, although in part contentious, is broadly effective in achieving a level of justice within the criminal trial process.

As you can see, the second half of the paragraph dealt with the problems which defences might hold. There is reference to BOCSAR reporting in order to support a particular point, and then a description of a case involving mental illness being used as a defence. Having these kinds of examples is extremely important in being able to get marks — it’s never enough to simply assert a point or issue without backing it up with legal evidence or real examples. Also, be aware that you don’t need to describe cases in great detail — a quick sentence summary of the facts is enough, followed by a more in-depth discussion of why the case is significant to the point you’re trying to make.

A similar dilemma is seen in the defence of provocation, which achieves a questionable level of justice. This defence is a partial defence which states that the accused had been sufficiently provoked to carry out their murderous actions. However, this defence somewhat impedes upon the achievement of justice, since the implication is that the accused was in some way responsible for allowing the events to occur, effectively shifting the blame from the accused. For example, in R v Singh (2012), Singh attested that he only murdered his wife after she provoked him by threatening a divorce, and ultimately the court found this to be true. The ruling thus raises questions as to whether anger of this sort could really be sufficient justification for murder, implying that Ms Singh had, in effect, brought her own death upon herself. There was significant public outcry at the verdict, with many seeing that justice had not been achieved for the victim here, as seen in the Sydney Morning Herald article ‘Six years for killing sparks call for law review’.

The second issue explored here is that of the defence of provocation. Again, the paragraph begins by defining the defence briefly. Then, the perceived problems with this legal mechanism are highlighted, with direct reference to a contentious case. As with before, the facts are only briefly mentioned — far more important is the analysis of the case and the prickly issues it raises. A media report detailing the community response is also included; media or news articles are usually best utilised in Legal essays when trying to show how the community/government reacted to a legal decision or significant event.

However, this defence, when applied to differing circumstances, has nevertheless seen to be in the interests of justice; for example, provocation is the underpinning principle of “battered wife syndrome”, which concerns women who, subjected to prolonged domestic violence, ultimately “lash out” and murder their abusers. In this regard, it is universally accepted that provocation can be an acceptable and just defence to years of physical and psychological torment, such as in the case of Catherine Smith (2008), who killed her husband after he stalked and threatened her family for over twenty years. The court’s acceptance of her provocation defence was widely praised for allowing justice to be achieved for the accused, since the victim had been sufficiently provoked to carry out the murder. Consequently, it is clear that the defence of provocation has questionable outcomes and is able to, in some cases, achieve justice within the criminal trial process.

Similar to before, the paragraph moves from the ‘cons’ to the ‘pros’ of this specific legal response. Here, the issue of ‘battered wife syndrome’ is explored in relation to a specific case. By examining both sides of the argument as to whether this defence can achieve justice, you’re able to add a level of analytical thought to your essay, since you’re weighing up a number of views in order to come to a conclusion, as opposed to just pushing one single idea. This kind of approach is very to prepare for, involving memorising a few specific issues and cases, but can be really effective in giving your essay a critical edge.

Separately, the implementation of majority verdicts in NSW, is, to some extent, an impediment to the achievement of justice. Under the Jury Amendment Act 2006 (NSW), juries may, where there has been deliberation time of over 8 hours and a unanimous verdict seems unlikely, present a majority verdict instead, that is, an agreement of eleven to one. Whilst this approach may save the court the time and money of another trial since the jury need not be dismissed, hence reducing the use of public funds, as well as allowing for witnesses to not suffer the ordeal of giving evidence again, majority verdicts can limit the achievement of justice, especially for the accused. Principally, majority verdicts impede upon the criminal trial principle of proving guilt “beyond reasonable doubt”, since the implication is that the jury was not unanimously convinced of the defendant’s guilt. The NSWLRC had previously recommended against the creation of majority verdicts, citing the failure of such measures in other states, and BOCSAR had also reported that such verdicts would only reduce court expenses by a minimal amount. In addition, the High Court, in R v Cheatle (1993), had previously ruled that there was an implied right to a unanimous jury for serious indictable offences. It may also impede upon justice for the victim, since all elements of the case may not have been sufficiently examined and considered by jury members; as such, it is clear that majority verdicts are a significant impediment to the achievement of justice within the criminal trial process.

This paragraph is on an entirely different part of the ‘criminal trial process’ dot-point. Again, the paragraph begins by introducing relevant legislation and its significance. Then, the advantages of the provision are mentioned, followed by a discussion of reasons for why it impedes upon the achievement of justice. These reasons draw upon reports from the New South Wales Law Reform Commission as well as BOCSAR — both these organisations release reports online about a wide range of issues related to the Legal Studies syllabus so can be really helpful. There’s also reference to a case as well as to important legal terminology (‘beyond reasonable doubt’). One of the key marking descriptors for Legal essays is the use of ‘appropriate legal terminology’, so if you have the opportunity to refer to core legal concepts in your paragraphs it can be a great way to show off your knowledge.

Hence, it is clear that the criminal trial process has allowed for a level of justice to be achieved. Whilst the use of majority verdicts has been shown to impede upon the achievement of justice, the defences of mental illness and provocation have, to some extent, allowed for the victim and offender to be suitably treated within the criminal trial process. Overall, it remains crucial that the law is able to balance the needs of the victim and offender in order to achieve justice within the criminal trial process.

Again, the conclusion is reasonably brief, simply reiterating again your overarching argument and summarising the key syllabus issues referred to the in the essay. If you’re given a stimulus or quote that you have to refer to, it’d be good to mention it here. Otherwise, there is no need to write an overly long conclusion beyond a brief summary of your essay’s arguments.

Post written by Wayne Kwok (13th in the state Legal Studies 2015)

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