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Legal Studies SAC #2
4.1, 4.2, 4.3, 4.5, 4.6, 5.1, 5.2, 6.3
| Question | Answer |
|---|---|
| criminal law | an area of law that defines behaviopurs and conduct that are prohbiited and outlines sanctions for people who commit them |
| crime | an act or ommsion that is agianst an existing law, harmful both to society and punishable by law |
| Characteristics of a crime | against an existing law, harmful to an individual and society, punishable by law |
| against an existing law | for a person to commit a crime , tehy must undertake an action that is prohibited by a current law that are outlined by parliament and the courts |
| harmful to an individual and society | a criminal act or omission has an impact in both the victim and the wider community by causing physical, financial and psychological harm. a victimless crime is also harmful to society even if the offender perceives their actions to only cause self harm |
| punishable by law | crimes are punishable by the state, meaning that a person who is guilty of committing a crime can have a penalty imposed on them, typically criinal offences penalities are imposed by the courts |
| purpose of criminal law | protect individuals (establishes crimes and processes to deal with criminals), protect property, protects society (sets standards of what is acceptable in the coimmunity to miantian public order and safety), protecting justice (promotes justice) |
| presumption of innocence | the right of a person accused of a crime to be presumed not guilty unless proven otherwise, it is a garantee by state that they will be considered and treated as being not guilty untill proven guilty beyong reasonable doubt |
| beyond reasonable doubt | the standard of proof in criminal casses that requires the prosecution to prove there is no reasonable doubt that the accused committed the offence |
| standard of proof | the degree or extent to which a case must be proved in court |
| where is the presumption of innocent upheld | protected as a human right in the International Covenant on Civil and Political Rights (1966) |
| how is presumption of innocence protected? pt 1 | burden of proof on the prosecution, standard of proof must be met( present sufficient evidence to the court to prove that the accused is guilty beyond reasonable doubt), police officers must have a reasonable belief and reason to arrest a person |
| how is presumption of innocence protected? pt 2 | right to apply for and be granted bail, right to legal representations in court, right to silence and this silence cannot be taken as an admission of guilt, right to appeal |
| burden of proof | the obligation of a party to prove a case, rests on the party who initiates the action (prosecution in criminal cases) |
| key concepts in criminal law | the elements of a crime (mens rea and actus reus), strict liability, the age of criminal responsibility, teh burden of proof, the standard of proof |
| elements of a crime | for a crime to have been committed the following two elements of a crime need to exist :actus reus and mens rea |
| actus reus | "a guilty act", the physical element of a crime for a person to found guilty of committing a crime, the prosecution must prove the person physically did the wrongful action |
| mens rea | " a guilty mind", the mental element of a crime the prosecution must also prove the person has intentionally coommitted the wrongful action |
| strict liability | where culpability or responsibility for committing a crime can be established without having ti prove there was mens rea |
| strict liability crime | most are summary offences that do not have a mental element, therefore the prosecution is not requires to prove that the accused had the intention to commit the crime, only prove the actus reus |
| strict liability crime examples | consuming intoxiating liquor while driving, fare evasion on publkic transport, and failing to diplay p lates whn driving on a probationary drivers license |
| age of criminal responsibility | the minimum age a person must be to be charged with committing a crime, a person under 12 cannot be charged, doli incapax, a person aged 14 years or older is considered to be criminally liable fot their acts |
| crimes are classified according to | the social purpose (or nature) of teh offence, the type of offender or victim and the seriousness of the offence |
| classifying according to its social purpose | means categorizing the crime according to whether it involves a wrongful action against a person, property, the wellbeing of a society or even the criminal justice system |
| divisions of crime classified by the crime statistics agency | Div A (crime against teh person), Div B (property offences), Dic C (drug offences), Div D (public order and security offences), Div E (justice procedures offences) Div F (other offences like protecting cultures and improving society) |
| classifying according to its type of offender or victim | inculde, cyber crime, prejudice motivated crime, organised crime, juvenile crime and white collar crime |
| classifying according to the seriousness of the offence | crimes are either indictable offences or summary offences |
| summary offences | a minor offence generally heard in the magistrates court eg drink driving, disordely conduct and minor assaults contained in the summary offenced act 1966 (Vic) |
| indictable offences | a seriousness offence generally heard before a judge and a jury in the county or supreme court of victoria eg homicide offences, culpable driviing causing death and rape crimes act 1958 (Vic) |
| indicatable offences heard summarily | a serious offence that is dealt with as a summary offence if the court and the accused agree, are heard and determined as if they are a minor offences in the Magistrate's court by a magistrate |
| when can an indictable offence CANNOT be heard summarily | if it is punishable by more than 10 years imprisonment of a fine greater than 1200 penalty units ($100 000) and without the consent of the accused |
| benefits of indictable offences that ar eheard summarily | quicker and cheaper for the accused, accused may recive a lesser punishment becuase the max term of imprisonment a magistarte can impose is capped (2 years for one offence and 5 for multiple) |
| principle offender | a person who has carried out the actus reus and has therefore directly committed the offence |
| when is a person involved in a crime | if they assist with the planning of a crime or encourage another person to commit a crime, can be found guilty whether or not other participant have also been convicted |
| accessory | a person who does an act to help another person who has committed a serios indictable offence to avoid being apprehended, prosecuted, convicted or punished |
| how is one an accessory | a person must beleive or know that the offender has committed a serious indictable offence and can be found guilty of an offence regardless of whether the principle offender is found guilty |
| bail | the release of an accused person from custody on condition that that they will attend a court hearing to answer the charges |
| defence to a crime | a jutification or lawful reason given by an accused person as to why they are not guilty of a criminal offence |
| general defences to crime | self defence, mental impairment, duress, sudden or extroadinary emergency, automatism, intoxication and accident |
| self defence | an accused can use self defence if they believe that their actions were necassary to protect or defend themselves and if they percieve their actions to be reasonable response in the circumstances (however the burden of proof falls on the prosecution) |
| mental impairment | the accused can use this if they were suffering from a mental illness and as a result did not know what they were doing becuase they has little undertsnading of the nature and quality of their actions and if they did not know their conduct was wrong |
| burden of proof of mental impairment | the accused is presumed to be sane so this means that the burden of proving the existence of mental impairment falls on the party who raises it, in most cases it is the accused |
| Duress | strong mental pressure on someone to overcome their independent will abd force them to do something (prosecution) |
| when can duress be raised | the accused can use it if they has reasonable belief that a threat of harm existed, the threat would have been carried out unless the offence was committed, only way to avoid teh threat and their actions were a reasoanble response to teh threat |
| sudden or extraordinary emergency | if the accused had reasonable belief that there was a sudden or extroadinary emergency and their actions were the only reasonable way of dealing with it and their actions were a reasonable response (prosecution) |
| automatism | a state in which a person has total loss of control over their bodily movements so that they cannot form an intention to commit a crime (mens rea) |
| when can automatism be raised | when teh accused commits an offence while sleepwalking, while suffering a concussion, during an epileptic seizure or as a result of a medical condition ot side effects of medication |
| intoxication | the accused acted involuntarily or without intent due to being in an intoxicated state as a result of consuming alcohol, taking drugs, or ingesting some other substance (state must not be self induced eg due to fraud, a reasonable mistake, force etc) |
| homicide | the killing of another person without legal justification |
| examples of homocide | manslaughter, infancticide, child homicide, culpable driving causing death, homocide by firearm, murder |
| murder | the most serious homocide offences, the unlawful and intentional killing of a human being by a person who acted voluntarily and without any lawful justification |
| elements of murder | the prosecution must prove the following elements BRD, the killing was unlawful, the accused acts were voluntary, the accused committed acts that caused the victims death and the accused acted with intent to kill or cause serious harm |
| Element 1 :killing was unlawful | the prosecution must prove the accused did not have a legal justification for causing the others person death eg soldier killing an enemy, police acting in duties, or a person acting under duress or self defence |
| Element 2: the accused acts were voluntary | the prosecution must prove the accused committed acts when they were awake, aware and in control of their bodily actions, must be deliberate and not the result of an accident |
| Element 3: the accused committed acts that caused the victims death | the prosecution must prove the accused committed acts that contributed significantly to the victims death, therefore they must prove their actions must prove causation and the death of the victim |
| causation | teh direct relationship between one event and another event, a direct and unbroken casual link between the accused actions |
| break in the casual link | if something intervenes to break the casual link between the accused action and the death , then the accused may not be guilty |
| element 4 : the accused acted with intent to kill or cause serious harm | the prosecution must prove the accused acted with a 'guilty mind'. must prove that the accused intended to kill someone or case them serious injury or knew it was probable that death or really serious injury would be a result of their actions |
| what happens if one or more elements of murder | the accused may be charges with and found guilty of an alternative offence provided that elements for the alternative offence are proven eg if intention is not proven they may be charged with manslaughter |
| parole | the supervised and conditional release of a prisoner after the minimum period of imprisonment has been served |
| maximum penalty for murder | life imprisonment (life sentence) -> section 3 of the crimes act 1958, includes the setting of a non parole period and then after this has been served, can be released-parole- |
| non parole period | minimum time the offender must be held in prison |
| standard sentence | outlined in teh sentencing act 1991, acts as a guidelines that must be considered by judges when determining sentences for 13 serious indictable offences (should be imposed on middle range of seriosuness offending before taking into account other factors |
| standard sentence for murder | 25 years imprisonment or 30 years if it was the murder of an emergency worker |
| in addition to the standard sentence, what factors can determine a sentence | the nature and gravity of the offending, the vulnerability of the victim, the offender conduct after committing the offence, the offenders personal circumstances, whether it was premediatated, guilty plea |
| victoria number of offenders sentenced for murder | varies year to year but has generally declined the past few years approc 91% were male and approc 73% were aged between 25 and 54 years old |
| victoria murder offences per 100 000 members of the population | remained stable, at less than one murder per 100 000 people between 2018 and 2022 (crime statitsics agency) |
| why is the recorded number of offences higher than the number of offenders sentenced for murder in victoria? | some offenders may have been given the opportunity to plead guilty to a lessor offence prior to teh trial or be found guilty of a lessor offence by the jury |
| why is it hard to compare statistics between states? | due to teh differences in legal and reporting practices eg the way they define and categories offences for the purpose of reporting statistics and the time they were gathered |
| murder rate of northern territory | three times higher than victoria and is the highest in Australia, 2. 4 murder offences per 100 000 population, trended upwards over the past 5 years(increased 1.6 2019 to 2023) |
| why has the murder rate increased in northern territory? | increased social disadvantage and financial hardship causing higher levels of alcohol and drug consumption, family dysfunction and mental health conditions. |
| impacts of murder on the victim and their family and friends | loss of life, shock, grief, fear, confusion, anger and emotional trauma, disruption to familt life, funeral costs, loss of household income, loss of trust in law and order and community values |
| impacts of murder on the community | cost of public funded medical treatment, need for coronial service, increased need for police, fir and emergency services, trauma to emergency services, loss of workplace productivity, potential loss of confidence in the legal system and community values |
| impacts of murder on the offender | guilt or shame, legal costs, custodial sentence, loss of household income if the offender is imprisoned, diminishment of the families social wellbeing and negative influences as a result of exposure to prison |
| theft | the acting of dishonestly taking property belonging to another person without their consent with the intention of permanently depriving that person of it (crimes act 1958) |
| elements of minor theft | prosecution must prove each of these elements beyond reasonable doubt, the accused appropriated property belonging to another, the accused took the property with the intention of permanently depriving the other of it and the accused acted dishonestly |
| element 1: the accused appropriated property belonging to another | they took and assumed the rights to control and possess the property or they interfered with the owners rights in some way, property is defined as tangible and intangible goods |
| how does the prosecution prove belonging? | only needs to establish that someone other than the accused had property rights and possession or control of the item that were appropriated (no requirement for them to prove WHO had those rights) |
| Element 2: the accused took the property with the intention of permanently depriving the other of it | prosecution must establish that the offender intended to permanently deprive the owner of the property |
| what does element 2 include? | their intention to treat the property as their own to dispose of, regardless of the owners rights or if they borrowed or lent the property and if the person returns to property when it has been fundementally changed |
| element 3: the accused acted dishonestly | prosecution must prove that the accused acted dishonestly if they didnt have the legal right to deprive the owner, the owner did not consent to the taking, if the owner could be discovered by taking reasonable steps |
| general defences that apply to minor theft | mental impairment, duress, sudden or extroadinery emergency, automatism, intoxication |
| specific defences to minor theft | subjective belief, inability to obtain the permission of the owner, ad claim of right |
| maximum penalty for theft | 10 years of imprisonemnt according to section 74 of the crimes act 1958 |
| number of offences recorded in victoria | significant drop in offences recorded between 2020 and 2021 due to covid, more common for a victim to be the subject of a theft offence than others like assault, most motor vehicles were stolen from resedential land, overall decline of theft |
| impacts of theft on the victim and their family | stress of having belongings stolen (worse if the items were not recovered and had signifcance to the victim) increased insurance premiums paybale by the vitim when items not recoved |
| impacts of theft on the community | increased need for police officers, loss of income for retailers whoch leads to an increase in the price of goods for all consumers, distress for people who have lost items that cannot be replaced and loss in trust in law and order and community values |
| impacts of theft on the offender | guilt or shame, legal costs, compensation paid to the victim, if the offender is imprisoned, hardship for the offender and their family |
| new south wales crime statistics | most common locations of theft is resedential land, decline of motor theft due to covid, 7500 theft offences a year, 70% are men |
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