AOS2: Presumption of Innocence Flashcards
Prosecution
Represents the Crown (or state) in a criminal case.
may be referred to as R (Regina), DPP, The Queen
Defendant
The person charged with the crime and on trial
How many jury members are there in criminal trials?
12
What is a hung jury?
When the jury cannot come to a decision.
This means there will be a retrial with a new jury.
When are juries used in criminal trials
- Not in magistrates (only magistrate)
- In all trials of County/Supreme Courts
What are the two verdicts of a criminal trial?
GUILTY or NOT GUILTY
What is a principal offender?
Anyone who commits a crime or aids, abets, counsels or organizes a summary/indictable offence
What is meant by an accessory
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)
Outline a summary offence
A minor criminal offence heard before a magistrate.
- Outlined in Summary Offences Act 1966 (Vic) and Road Safety Act 1986 (Vic).
Outline an indictable offence heard summarily
Serious offences heard before a magistrate alone
- e.g minor burglary, minor assault, theft not exceeding $100,000
- D chooses county/magistrates court
Outline indictable offences
The most serious criminal offences.
- Outlines in the Crimes Act 1958 (Vic)
- e.g murder, manslaughter, rape, culpable driving
Purpose of committal hearings?
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.
Nature Seriousness and Max penalty of murder
Nature = crime against the person
Seriousness = most serious indictable offence
Maximum penalty = life imprisonment
Definition of Murder
- 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”
Elements of Murder
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
What is required to demonstrate malice aforethought?
- The accused intended to KILL the victim
- The accused intended to INFLICT SERIOUS INJURY
- The accused acted with RECKLESS INDIFFERENCE
Defence to Murder: Self Defence
Accused:
- Believed it was necessary to act
- Had reasonable grounds for this belief
- Force used was reasonable/proportionate to force used by attacker.
Defence to Murder: Battered partner syndrome
- A partial defence to support a self defence claim
- Used when “repeatedly subject to forceful physical/psychological behaviour at least twice”
Defence to murder: Mental Impairment
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
Defence to murder: Duress
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
Defence to murder: Intoxication
- Only applies to intoxication that is NOT SELF INDUCED.
- Courts compare actions of intoxicated person to reasonable person intoxicated to same extent
Defence to murder: Sudden/Extraordinary Emergency
- There was a sudden/extraordinary emergency
- Actions were the only way of dealing w situation
- Conduct was a reasonable response
Defence to murder: Necessity
- 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
Defence to murder: Automatism
- Act was involuntary
- Individual was not conscious of their actions e.g sleep-walking
Defence to murder: Accident
When accused did not possess mens rea
Defence to murder: Consent
Could be used in sports situation where a player acce[ts physical contact may occur.
Manslaughter Definition
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
What has the accused done in relation to manslaughter? (4 things)
- 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
Voluntary Manslaughter:
If one had killed another upon being provoked
H/W
defence of provocation can no longer be used
Impact of Homicide: Victim/Victim’s family
- Loss of Life
- Funeral costs
- Lost trust in legal system
Impact of Homicide: Offender/Offender’s family
- Shame/Guilt
- Legal costs
- Liberty taken away due to imprisonment
Impact of homicide: Society
- Loss of public confidence in legal system
- Increased need for police and emergency services
- May protest to demand law change
Victim impact statement:
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
Theft Definition:
Where a person dishonestly appropriates property belonging to another which the intention to permanently deprive the other of it.
Elements of Theft
1) Acted dishonestly
2) Appropriated property belonging to another
3) Intention to permanently deprive
Development of law of theft:
CL: As larceny
now SI: refines elements + expands theft meaning
- elements/punishments contained in Crimes Act 1958 (Vic)
When does a person act honestly:
- Had a legal right
- Would have had owner’s consent
- Had belief owner could not be discovered in reasonable steps.
What does it mean to appropriate:
- To take property without consent
- To interfere/assume rights of owner
- To take/keep an item to use, devalue, or try to sell
Defence to theft: Lack of elements
- 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
Defence to theft: Mental Impairment
Accused argues did not know actions were wrong at time of offence and had limited understanding of nature/quality of actions
Defence to theft: Duress
- Threat of harm existed
- Threat would be carried out unless offence was committed
- Offence was only reasonable way to avoid harm
Defence to theft: Sudden/Extraordinary Emergency
- Actions were only way of dealing with situation
- Actions were a reasonable response
Defence to theft: intoxication
- Self induced: compare conduct to person not intoxicated
- Not self induced: compare conduct to reasonable person intoxicated at same level as accused.
Defence to theft: Automatism
When accused was:
- Sleeping/sleepwalking
- Suffering concussion
- Suffering from an epileptic seizure
- Suffering side effect of medical condition/proper use of medicine
