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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
Q

royal commission

A

the highest form of inquiry into matters of public concern

26
Q

barrister

A

an independent lawyer with specialist skills engaged on behalf of a party

27
Q

penalty unit

A

a measurement used to calculate the amount of a fine

28
Q

indictable offences heard summarily

A

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
Q

purposes of criminal law

A

-protecting individuals
-protecting property
-protecting society
-protecting justice
-helps achieve social cohesion

30
Q

how is the presumption of innocence protected?

A

-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
Q

elements of a crime

A

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
Q

the age of criminal responsibility

A

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
Q

how are crimes classified?

A

-social purpose (nature) of the offence
-the type of offender or victim
-the seriousness of the crime (indictable or summary)

34
Q

social purpose of offences

A

-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
Q

types of offender or crimes

A

-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
Q

features of summary offences

A

-minor crimes
-generally heard in magistrate’s court
-final hearing is called a hearing
-magistrate determines whether accused is guilty

37
Q

features of indictable offences

A

-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
Q

features of indictable offences heard summarily

A

-serious crimes heard summarily (ie without jury)
-heard in magistrate’s court if court deems it appropriate and accused consents
-magistrate determines verdict

39
Q

how can people be involved in a crime?

A

-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
Q

general defences to crime

A

-self defence
-mental impairment
-duress
-sudden or extraordinary emergency
-automatism
-intoxication
-accident

41
Q

self defence

A

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
Q

mental impairment

A

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
Q

duress

A

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
Q

sudden or extraordinary emergency

A

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
Q

automatism

A

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
Q

intoxication

A

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
Q

accident

A

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
Q

elements of murder

A

-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
Q

defences to murder

A

-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
Q

possible sanctions to murder

A

-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
Q

factors that may affect sentencing

A

-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
Q

possible impacts of murder

A

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
Q

causation

A

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
Q

standard sentence

A

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
Q

assault

A

the intentional or reckless use of force or the threat of force against another person without a lawful excuse

56
Q

reckless

A

acting, or not acting, with conscious awareness of the potential harm that is likely to be suffered

57
Q

elements of assault

A

-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
Q

defences for assault

A

-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
Q

possible sanctions of assault

A

a fine of up to 15 penalty units (around $2880) or up to 3 months imprisonment

60
Q

possible impacts of assault

A

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
Q

trends and statistics of murder in victoria and nt

A

-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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