4 the presumption of innocence Flashcards
Define crime
an act or omission that is against an existing law, harmful to an individual or to society as a whole, and punishable by law
Purposes of criminal law
- protect individuals – by establishing crimes and processes to deal with people who commit these crimes
- protect property – privately owned and public property
- protect society – by setting standards and making it clear what behaviour is not tolerated by the community and the legal system
- promote justice – by providing processes to deal with offenders and to enforce the law
How is the presumption of innocence protected?
the right of a person accused of a crime to be presumed not guilty unless proven otherwise
- burden of proof
- standard of proof
- police officers are to reasonably believe a person has committed a crime before arresting them
- right to legal representation
- right to silence
- previous convictions cannot be revealed in court until sentencing
- right to appeal
Elements of a crime
actus reus: ‘a guilty act’; physical element of a crime
mens rea: ‘a guilt mind’; mental element of a crime
Define strict liability
culpability or responsibility for committing a crime can be established without having to prove there was mens rea
Age of criminal responsibility
under 10 years: cannot be charged w/ a crime
10–13 years: can be charged if the prosecution can prove that the child knew, at the time of the crime, that their actions were wrong
- doli incapax: ‘incapable of evil’; the principle that a child aged 10–13 years is presumed to be incapable of forming mens rea because they don’t have the intellectual or moral capacity to know the difference between right and wrong
14 years or older: criminally liable for their actions and can be charged with committing a crime
Burden of proof
the obligation of a party to prove a case. the burden of proof usually rests with that party who initiates the action.
- civil dispute – the plaintiff
- criminal case – the prosecution
Standard of proof
the degree or extent to which a case must be proved in a court
- civil dispute – balance of probabilities: requires the plaintiff to establish that it is more probable than not that their version of the facts is correct
- criminal case – beyond reasonable doubt: requires the prosecution to prove there is no reasonable doubt that the accused committed the offence
Classifying a crime according to the social purpose (or nature) of the offence
Division A: Crimes against a person (protecting individuals) — E.g. Homicide
Division B: Property and deception offences (protecting property) — E.g. Arson
Division C: Drug offences (protecting society) — E.g. Dealing and trafficking drugs
Division D: Public order and security offences (maintaining public order and security) — Weapons and explosives offences
Division E: Justice procedures offence (protecting justice and the rule of law) — E.g. Perjury
Division F: Other offences (Protecting rights and cultures, and improving society) — E.g. Regulatory driving offences
Classifying a crime according to the type of offender or victim
Cyber-crime: a criminal offence in which the use of computers or information communication technologies (ICT) is an essential and central part of the offending
Hate crime: a criminal offence motivated by hostility and prejudice towards the victim
Organised crime: criminal offences undertaken in a planned and ongoing manner by organised syndicates or gangs
Juvenile crime: a criminal offence undertaken by a young person aged between 10–18 years
White-collar crime: criminal offences undertaken by people who work in government, business or in the corporate world
Classifying a crime according to the seriousness of the offence
Summary offence: a minor offence generally heard in the Magistrates’ Court of Victoria
Indictable offence: a serious offence generally heard before a judge and a jury in the County Court or the Supreme Court of Victoria
Indictable offence heard and determined summarily
a serious offence that can be heard and determined as a summary offence if the court and accused agree
CANNOT be heard summarily:
- if punishable by more than 10 years imprisonment or a fine greater than 1200 penalty units (approx. $200,000)
- without the consent of the accused
Distinguish between summary offences and indictable offences
Summary offences
- minor crimes
- generally heard in the Magistrates’ Court
- final hearing is known as a hearing
- Magistrate determines whether the person charged with a crime is guilty
Indictable offences
- serious crimes
- tried in the County Court or the Supreme Court
- final hearing is known as a trial
- when an accused pleads not guilty, a jury determines the verdict
Indictable offences heard summarily
- serious crimes that may be heard summarily (without a jury)
- heard in the Magistrates’ Court if the court determines it is appropriate and the accused consents
- Magistrate determines whether the person charged with a crime is guilty
Participants in a crime
principal offender: a person who has carried out the actus reus and has therefore directly committed the offence
accessory: a person who, w/o lawful excuse, assists the principal offender following the commission of a crime
