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legal unit 1 > AOS2 - proving guilt > Flashcards

AOS2 - proving guilt Flashcards

unit one

1
Q

accessory

A

a person who assists a principal offender to avoid being apprehended, prosecuted, convicted, or punished after the crime is committed.
the person must know or believe that the offender committed a serious offence

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2
Q

accused

A

a person charged with a criminal offence but hasn’t been found or plead guilty

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3
Q

actus reus

A

‘a guilty act’
the physical element of a crime

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4
Q

beyond reasonable doubt

A

the standard of proof in criminal cases
requires the prosecution to prove there is no reasonable doubt that the accused committed the offence

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5
Q

burden of proof

A

the obligation of a party to prove a case
usually rests with the party who initiates the action an be reversed

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6
Q

crime

A

an act or omission that is (1) against an existing law, (2) harmful to both an individual and society, and (3) punishable by law

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7
Q

criminal law

A

an area of law that defines behaviours and conduct that are prohibited and outlines sanctions to those who commit them

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8
Q

indictable offence

A

a serious offence generally heard before a judge and a jury in the county or supreme court

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9
Q

mens rea

A

‘a guilty mind’
the mental element of a crime

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10
Q

presumption of innocence

A

the right of a person accused of a crime to be presumed not guilty until proven otherwise.

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11
Q

sanction

A

a penalty imposed by a court on a person guilty of a criminal offence (eg fines or imprisonment)

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12
Q

victimless crime

A

an offence that only involves the offender(s) and where there is no direct harm suffered by a victim

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13
Q

principal offender

A

a person who has carried out actus reus and therefore has directly committed the offence
anyone involved in a crime is also considered a principal offender

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14
Q

standard of proof

A

the degree or extent to which a case must be proved in court
in criminal cases, this is beyond reasonable doubt

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15
Q

strict liability

A

where responsibility for committing a crime can be established without having to prove there was mens rea (the mental element)
most strict liability crimes are summary offences (eg drink driving, driving while suspended)

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16
Q

summary offence

A

a minor offence generally heard in the Magistrate’s court

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17
Q

fine

A

a sanction which requires the offender to pay an amount of money to the state

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18
Q

imprisonment

A

a sanction that involves removing the offender from society for a stated period of time and placing them in prison

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19
Q

prosecution

A

the party that institutes criminal proceedings against an accused on behalf of the state

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20
Q

bail

A

the release of an accused person from custody on condition that they will attend a court hearing to answer the charges

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21
Q

doli incapax

A

‘incapable of evil’
a child between 10-13 is presumed to be unable of forming mens rea because they don’t have the intellectual or moral capacity to know the difference between right and wrong

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22
Q

parole

A

the supervised and conditional release of a prisoner after the minimum period of imprisonment has been served

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23
Q

community corrections order

A

a flexible, non-custodial sanction that the offender serves in the community, with conditions attached

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24
Q

guilty plea

A

when an offender formally admits guilt which is considered by the court when sentencing

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25
royal commission
the highest form of inquiry into matters of public concern
26
barrister
an independent lawyer with specialist skills engaged on behalf of a party
27
penalty unit
a measurement used to calculate the amount of a fine
28
indictable offences heard summarily
a serious offence that is dealt with as a summary offence if court and accused agree indictable can't be heard summarily if: -it's punishable by more than 10 years prison or fine is over 1200 penalty units and -without the consent of the accused
29
purposes of criminal law
-protecting individuals -protecting property -protecting society -protecting justice -helps achieve social cohesion
30
how is the presumption of innocence protected?
-the burden of proof in a criminal case is on the prosecution -the standard of proof in a criminal case must be met (beyond reasonable doubt) -police officers must reasonably believe a person has committed a crime before arresting them -a person who's arrested has a right to apply and be granted bail -an accused has a right to legal representation -an accused has a right to silence -generally, and accused previous convictions cannot be revealed until sentencing process begins -a person who's convicted as a right to appeal
31
elements of a crime
actus reus: the prosecution must prove the person physically committed the (in)action mens rea: the prosecution must prove the person knowingly or intentionally committed the wrong (in)action
32
the age of criminal responsibility
under 10: can't be charged with a crime between 10-13: can be charged if prosecution can prove, at the time of the crime, that their actions were wrong (doli incapax) 14+: can be charged with a crime
33
how are crimes classified?
-social purpose (nature) of the offence -the type of offender or victim -the seriousness of the crime (indictable or summary)
34
social purpose of offences
-categories of crime division a: crimes against the person (murder, assault, stalking) division b: property and deception offences (arson, bribery, burglary) division c: drug offences (dealing, drug use, possession) division d: public order and security offences (weapons and explosives offences, public security, disorderly/offensive conduct) division e: justice procedure offences (perjury, contempt of court) division f: other offences (regulatory drive offences, transport regulation offences)
35
types of offender or crimes
-when offences committed by or impact a specific social group, gain attention of media, law enforcement, government, and general community are labelled as a specific category of crime -cyber crime: offences using computers or other electronic devices (hacking, fraud, malicious software) -prejudice motivated crime: offences motivated by prejudice or bias against another group or person based on personal characteristics (race, sex) -organised crime: illegal activities undertaken in a planned and ongoing manner by organised crime groups or syndicates -juvenile crime: offences committed by people aged 10-18 -white collar crime: undertaken by those who work in the government, in business, or the corporate world (tax evasion, fraud, theft)
36
features of summary offences
-minor crimes -generally heard in magistrate's court -final hearing is called a hearing -magistrate determines whether accused is guilty
37
features of indictable offences
-serious crimes -tried in supreme or county court -final hearing is called a trial -when an accused pleads not guilty, the jury determines the verdict
38
features of indictable offences heard summarily
-serious crimes heard summarily (ie without jury) -heard in magistrate's court if court deems it appropriate and accused consents -magistrate determines verdict
39
how can people be involved in a crime?
-intentionally assist, encourage or direct another person to commit a crime -make an agreement with another person to commit a crime together -intentionally assist, encourage or direct another person to commit a crime (knowing it's highly likely that another crime may be the result) -make an agreement with another person to commit a crime together knowing it's highly likely that another crime may be the result
40
general defences to crime
-self defence -mental impairment -duress -sudden or extraordinary emergency -automatism -intoxication -accident
41
self defence
used when accused: -believes their actions were necessary to protect themselves -perceived their actions to be reasonable in the situation burden of proof falls of prosecution to prove there wasn't self defence
42
mental impairment
used when accused has a mental illness and: -didn't know what they were doing because they had little understanding of their actions -didn't know their conduct was wrong/couldn't think about their conduct normally burden of proof falls on party who raises this defence (usually accused) to prove their was mental impairment
43
duress
used when accused believed: -a threat of harm existed and would be carried out -committing the offence was the only reasonable response to avoid harm burden of proof falls of prosecution to prove there wasn't duress
44
sudden or extraordinary emergency
used if accused believes: -there was a sudden and extraordinary emergency -their actions were necessary and reasonable burden of proof falls on prosecution to prove accused didn't act in the circumstances of an emergency
45
automatism
used when accused commits offence when: -sleeping/sleepwalking -suffering concussion -during an epileptic seizure -because of a medical condition/medication etc generally, burden of proof rests of prosecution to prove accused acted voluntarily
46
intoxication
used when accused: -acted involuntarily due to being intoxicated which wasn't self-induced burden of proof rests on accused to prove their intoxication wasn't self induced, and was a result of fraud, a reasonable mistake, or proper use of medication etc
47
accident
used when accused: -took actions which were involuntary, unintentional, or reasonably unforeseeable by an ordinary person burden of proof rests on prosecution to prove accused acted deliberately
48
elements of murder
-the killing was unlawful: accused must not have legal justification (eg police officer protecting themselves, soldiers in war) -the accused acts were voluntary: accused must have been awake, aware, and in control of their body when committing the offence. actions must be deliberate -the accused acts caused the victims death: prosecution must proved accused committed acts that contributed significantly to victim's death -the accused acted with intent to kill or cause serious harm: prosecution must prove accused acted with mens rea, and in particular, they must prove accused intended to kill and knew their actions would cause death
49
defences to murder
-accused didn't intend to kill or seriously harm victim -there was a break in causation -accused acts were not unlawful -other general defences
50
possible sanctions to murder
-max penalty is life in prison -standard sentence is 25 years, and 30 if victim was an emergency worker or custodial officer on duty
51
factors that may affect sentencing
-the nature and gravity of offending -the vulnerability of victim -the offender's conduct after committing the offence -the offender's personal circumstances -whether the murder/assault was planned or premeditated -guilty plea -prior convictions (assault)
52
possible impacts of murder
victim (and family/friends) -loss of life -disruption to family life -trauma and grief -potential loss of household income community -increased need for police and emergency services -increased trauma to first responders -loss of the sense of community safety offender -may feel guilt or shame at causing a death -will receive term of imprisonment
53
causation
the direct link between one event (E1) and another (E2), where E1 was the reason E2 happened, and E2 wouldn't have happened by itself without E1
54
standard sentence
the sentence that should be imposed for 'middle of the range of seriousness' offending, before the judge takes into account other relevant sentencing factors
55
assault
the intentional or reckless use of force or the threat of force against another person without a lawful excuse
56
reckless
acting, or not acting, with conscious awareness of the potential harm that is likely to be suffered
57
elements of assault
-the accused applied force or threatened to apply force (force doesn't need to be violent or applied directly by accused) -the application or threat of force was intentional or reckless -there was no lawful justification or excuse
58
defences for assault
-the force applied was so minor or trivial that it's insufficient to warrant a charge -the contact was unintentional -accused had lawful justification -other general defences specific defences -consent: a person can't be convicted if their actions were consensual -lawful arrest -lawful correction of a child
59
possible sanctions of assault
a fine of up to 15 penalty units (around $2880) or up to 3 months imprisonment
60
possible impacts of assault
victim (and family/friends) -disruption to family life -lost income -continuing psychological issues community -increased need for emergency service workers -loss in trust in legal system -decreased wellbeing offender -guilt or shame -legal and medical costs -impact on offender's family
61
trends and statistics of murder in victoria and nt
-the murder rate in the nt was approx 3 times higher in vic (nt has the highest murder rate in aus) -nt had 6 murder offences in the year ending jan 2023 (2.4 offences per 100,000) while vic had less than 1 offence per 100,000 in a similar time period

legal unit 1 (3 decks)

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