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Legal Studies > AOS2: Presumption of Innocence > Flashcards

AOS2: Presumption of Innocence Flashcards

1
Q

Prosecution

A

Represents the Crown (or state) in a criminal case.

may be referred to as R (Regina), DPP, The Queen

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2
Q

Defendant

A

The person charged with the crime and on trial

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3
Q

How many jury members are there in criminal trials?

A

12

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4
Q

What is a hung jury?

A

When the jury cannot come to a decision.

This means there will be a retrial with a new jury.

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5
Q

When are juries used in criminal trials

A
  • Not in magistrates (only magistrate)

- In all trials of County/Supreme Courts

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6
Q

What are the two verdicts of a criminal trial?

A

GUILTY or NOT GUILTY

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7
Q

What is a principal offender?

A

Anyone who commits a crime or aids, abets, counsels or organizes a summary/indictable offence

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8
Q

What is meant by an accessory

A

Anyone who knowingly impedes/obstructs the apprehension, prosecution, conviction or punishment of the main offender of a crime.
(accessory if sentence of crime is 5+ years)

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9
Q

Outline a summary offence

A

A minor criminal offence heard before a magistrate.

- Outlined in Summary Offences Act 1966 (Vic) and Road Safety Act 1986 (Vic).

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10
Q

Outline an indictable offence heard summarily

A

Serious offences heard before a magistrate alone

  • e.g minor burglary, minor assault, theft not exceeding $100,000
  • D chooses county/magistrates court
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11
Q

Outline indictable offences

A

The most serious criminal offences.

  • Outlines in the Crimes Act 1958 (Vic)
  • e.g murder, manslaughter, rape, culpable driving
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12
Q

Purpose of committal hearings?

A

An individual charged with an indictable offence INITIALLY experiences a committal hearing in magistrates court.
ROLE = determine if there is enough prosecution evidence for conviction at trial.

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13
Q

Nature Seriousness and Max penalty of murder

A

Nature = crime against the person

Seriousness = most serious indictable offence

Maximum penalty = life imprisonment

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14
Q

Definition of Murder

A
  • STEMS FROM COMMON LAW
  • “a person of sound memory, at age of discretion, unlawfully kills any reasonable creature under the King’s peace, with malice aforethought”
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15
Q

Elements of Murder

A

1) The accused was above the age of discretion
2) The victim was a human being
3) The accused was of sound mind
4) The killing was unlawful
5) Causation
6) Malice aforethought

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16
Q

What is required to demonstrate malice aforethought?

A
  • The accused intended to KILL the victim
  • The accused intended to INFLICT SERIOUS INJURY
  • The accused acted with RECKLESS INDIFFERENCE
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17
Q

Defence to Murder: Self Defence

A

Accused:

  • Believed it was necessary to act
  • Had reasonable grounds for this belief
  • Force used was reasonable/proportionate to force used by attacker.
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18
Q

Defence to Murder: Battered partner syndrome

A
  • A partial defence to support a self defence claim

- Used when “repeatedly subject to forceful physical/psychological behaviour at least twice”

19
Q

Defence to murder: Mental Impairment

A

Concerned with accused’s state of mind at time of offence

  • Accused did not know what they were doing
  • Accused did not know the nature/quality of their actions
20
Q

Defence to murder: Duress

A

When a person believes:

  • A threat of harm will be carried out unless the crime is committed
  • Committing the crime is the only way to avoid harm
  • Conduct was a reasonable response to the threat made
21
Q

Defence to murder: Intoxication

A
  • Only applies to intoxication that is NOT SELF INDUCED.

- Courts compare actions of intoxicated person to reasonable person intoxicated to same extent

22
Q

Defence to murder: Sudden/Extraordinary Emergency

A
  • There was a sudden/extraordinary emergency
  • Actions were the only way of dealing w situation
  • Conduct was a reasonable response
23
Q

Defence to murder: Necessity

A
  • Accused acted to protect themselves/someone else from irreparable evil or harm
  • Honestly believed it was a situation of imminent peril
  • Act was reasonable and proportionate to peril
24
Q

Defence to murder: Automatism

A
  • Act was involuntary

- Individual was not conscious of their actions e.g sleep-walking

25
Q

Defence to murder: Accident

A

When accused did not possess mens rea

26
Q

Defence to murder: Consent

A

Could be used in sports situation where a player acce[ts physical contact may occur.

27
Q

Manslaughter Definition

A

Where one does not intend to kill or cause grievous bodily harm, but their reckless or negligent conduct results in the killing of another.
- without MALICE AFORETHOUGHT

28
Q

What has the accused done in relation to manslaughter? (4 things)

A
  • Performed an unreasonable act which could be foreseen to cause serious injury/death.
  • Intentionally caused bodily harm without intending to cause grievous bodily harm/death
  • Been criminally negligent (failed to maintain a standard of care)
  • Failed to act in a situation where a law had imposed a duty to act
29
Q

Voluntary Manslaughter:

A

If one had killed another upon being provoked
H/W
defence of provocation can no longer be used

30
Q

Impact of Homicide: Victim/Victim’s family

A
  • Loss of Life
  • Funeral costs
  • Lost trust in legal system
31
Q

Impact of Homicide: Offender/Offender’s family

A
  • Shame/Guilt
  • Legal costs
  • Liberty taken away due to imprisonment
32
Q

Impact of homicide: Society

A
  • Loss of public confidence in legal system
  • Increased need for police and emergency services
  • May protest to demand law change
33
Q

Victim impact statement:

A

A written statement in the form of a statutory declaration that outlines the victim’s feelings, financial loss and physical injuries

  • Presented after guilty plea/verdict
  • Written by victim’s family
34
Q

Theft Definition:

A

Where a person dishonestly appropriates property belonging to another which the intention to permanently deprive the other of it.

35
Q

Elements of Theft

A

1) Acted dishonestly
2) Appropriated property belonging to another
3) Intention to permanently deprive

36
Q

Development of law of theft:

A

CL: As larceny
now SI: refines elements + expands theft meaning
- elements/punishments contained in Crimes Act 1958 (Vic)

37
Q

When does a person act honestly:

A
  • Had a legal right
  • Would have had owner’s consent
  • Had belief owner could not be discovered in reasonable steps.
38
Q

What does it mean to appropriate:

A
  • To take property without consent
  • To interfere/assume rights of owner
  • To take/keep an item to use, devalue, or try to sell
39
Q

Defence to theft: Lack of elements

A
  • Accused never took possession
  • Property ‘stolen’ was not actually property
  • Accused did not intend to permanently deprive
  • Accused believed they had a legal right
  • Dispute accuracy of the facts
40
Q

Defence to theft: Mental Impairment

A

Accused argues did not know actions were wrong at time of offence and had limited understanding of nature/quality of actions

41
Q

Defence to theft: Duress

A
  • Threat of harm existed
  • Threat would be carried out unless offence was committed
  • Offence was only reasonable way to avoid harm
42
Q

Defence to theft: Sudden/Extraordinary Emergency

A
  • Actions were only way of dealing with situation

- Actions were a reasonable response

43
Q

Defence to theft: intoxication

A
  • Self induced: compare conduct to person not intoxicated

- Not self induced: compare conduct to reasonable person intoxicated at same level as accused.

44
Q

Defence to theft: Automatism

A

When accused was:

  • Sleeping/sleepwalking
  • Suffering concussion
  • Suffering from an epileptic seizure
  • Suffering side effect of medical condition/proper use of medicine

Legal Studies (3 decks)

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