Area Of study 2 - Criminal Law

Question 0

List the principles of criminal liability

Answer 0

1. The burden of proof
2. The standard of proof
3. The presumption of innocence
4. The age of criminal liability

Question 1

What are the elements of crime and what do they mean ?

Answer 1

1. Actus reus - wrongful act

2. Mens Rea - a guilty mind

Question 2

The burden of proof

Answer 2

Is held by the party bringing the action and has the responsibility of proving an action.

Question 3

The standard of proof

Answer 3

In a criminal case is beyond a reasonable doubt; that in the prosecution must prove the accused’s guilt. Should there be any doubt then the court should return a verdict of not guilty

Question 4

The presumption of innocence

Answer 4

A person is presumed innocent until they are proven guilty. Every accused is entitled to be presumed innocent.

Question 5

The age of criminal liability

Answer 5

It is presumed that a child under 10 is not able to form the intention to commit a crime. It is also presumed that a child between 10-14 years is incapable of forming the intention to commit a crime, however this may be overturned. If the prosecution can prove that the child knew what they were doing was wrong.

Question 6

Define crime

Answer 6

A crime is an act or omission against an existing law that is harmful to an individual or society as a whole and is punishable by law.

Question 7

Murder

Answer 7

The unlawful killing of another person with malice afterthought, by a person who is over the age of 10 and has the ability to form the intention of committing the crime and of sound mind.

Question 8

Outline the 6 elements of murder

Answer 8

1. The killing was unlawful
2. The accused was a person over the age of discretion
3. The victim was a human being
4. The accused was of sound mind
5. The accused caused the victims death
6. Malice afterthought existed

Question 9

The killing was unlawful (element of murder)

Answer 9

An unlawful killing is the intention to murder someone for no lawful reason such as capital punishment or self defence.

Question 10

The accused was a person over the age of discretion (element of murder)

Answer 10

The accused must be over the age of 10, as the law believes children under the age of 10 are incapable of forming the intention of committing a crime.

Question 11

The victim was a human being (element of human being)

Answer 11

The victim must a human, not an animal and must be independent of their mother and have taken their first breath.

Question 12

The accused was of sound mind

Answer 12

The accused’s actions must be voluntary,conscious and deliberate. A person who has a mental disability or illness may not be of sound mind.

Question 13

The accused caused the victims death (element of murder)

Answer 13

The accused’s actions must contribute substantially to the victims death. There also has to be a mandatory casual link between the accused’s actions and the death of the victim.

Question 14

Malice afterthought existed (element of murder)

Answer 14

Malice afterthought is the intention of committing a crime and a guilty mind, otherwise known as Mens Rea. The accused also must have a voluntary state of mind including : reckless indifference, an intention to kill, an intention to inflict serious injury which resulted in death, and an intention to assault a person attempting to make a lawful arrest which resulted in death.

Question 15

Attempted murder

Answer 15

A person who attempts to commit a serious crime and is guilty of the indictable offence. To be found guilty of attempted murder it must be shown that the person intended to commit the murder, believed it was going to take place, more than preparing to commit the murder and be directly linked. The maximum penalty is 25 years imprisonment.

Question 16

Manslaughter

Answer 16

Applies when there is no intention to kill but the actions resulted in the person’s death. The degree of malice by the offender determines whether an unlawful homicide is classified murder or manslaughter. The unlawful killing without magic aforethought is manslaughter. Maximum penalty is 20 years imprisonment.

Question 17

Defensive homicide

Answer 17

Where a person believes they were acting in self defence it but the court believes the accused’s actions were unreasonable.

Question 18

Child homicide

Answer 18

For a person to be convicted of child homicide the accused must kill a child under the age of 6 under the circumstances of manslaughter.

Question 19

Infanticide

Answer 19

The accused is found guilty of infanticide if they are the mother of their child under the 2 years of age as a result of a mental impairment caused by the birth of the child.

Question 20

Common assault

Answer 20

Involves direct or indirect application of force by a person to the body, clothing or equipment of another person. Where the application of force is : without lawful excuse and intentional or reckless and result in bodily injury, discomfort, damage,insult or deprivation of liberty.

Question 21

Culpable driving causing death

Answer 21

Responsible for the death of another road user while driving a motor vehicle. The prosecution must prove that the accused accounted to either driving recklessly, driving negligently or driving under the influence of alcohol or drugs with the inability to control a motor vehicle.

Question 22

Rape

Answer 22

Intentional sexual penetration of another person without their consent. While being aware that the person was not consenting or might not have been consenting. Or not withdrawing from sexual penetration after becoming aware that the person did not consent. Maximum penalty is 25 years imprisonment

Question 23

Meaning of consent

Answer 23

Involve the free agreement of saying yes

Question 24

List circumstances where a person doesn’t agree

Answer 24

• submits force or fear
• submits fear of force
• submits because they are lawfully detained
• if a person is asleep, unconscious or affected by alcohol or drugs
• incapable of understanding sexual nature
• if person mistakenly believes the action is for medical or hygiene purposes.

Question 25

What are the proposed changes in rape laws

Answer 25

1. Prosecutor must prove the accused’s state of mind in relation to rape. Aiming to make it easier to prove rape occurred even if they believe consent was given by the victim.
2. Maximum sentence for assault with the intention to rape be raised from 10 years to 15 years imprisonment if targeting a child under 16

Question 26

Sexting laws

Answer 26

Sending nudes, sexual or indecent photos using a computer or any mobile device. From November 2nd 2014 maximum penalty will be two years imprisonment

Question 27

Stalking

Answer 27

• following
• contacting
• publishing material relating to victim on the Internet or electronic communication
• causing an unauthorised computer function
• entering or loitering around victims house, place of business or places frequently visited

Question 28

List the lawful defences to assault

Answer 28

• protecting others
• escape unlawful imprisonment
• prevent crime
• protect property
• making an arrest
• reasonable force in correction of child

Question 29

Possible defences to assault

Answer 29

Self defence- if in immediate danger of attack/injury
Duress- if committed because of immediate threat of death or serious injury to themselves or another
Necessity- a common law defence, not used in murder
Intoxication- court to decide if responsible for actions
Consent - if victim agrees eg. Boxing

Question 30

Theft

Answer 30

An indictable offence that involves dishonest taking of a person’s property with the intention of permanently depriving the person of it.

Question 31

Burglary

Answer 31

Entering any building as a trespasser with the intent to steal or commit an offence involving assault in a building enters as a fess passer or damaging a building entered.

Question 32

Robbery

Answer 32

The use of force on any person , or putting any person in fear of force being used immediately before or during the act of stealing.

Question 33

Shop stealing

Answer 33

Theft, even though the value of goods may be small

Question 34

Armed robbery

Answer 34

Committing a robbery with a gun or explosive, including imitations.

Question 35

Fraud

Answer 35

Obtaining property though deception, with the intention of permanently depriving the other person of it and obtaining financial advantage by deception.

Question 36

Handling stolen goods

Answer 36

A person is regarded to having handled stolen goods if he/she dishonestly receives,retains,removes,disposes of,sells, or arranges to sell goods which he/she knows to be stolen.

Question 37

Destroying or damaging property

Answer 37

It is an offence to intentionally destroy or threaten to destroy / damage belonging to another person.

Question 38

Arson

Answer 38

A form of property destruction and it is illegal to destroy property unlawfully by fire.

Question 39

Maximum penalty for destroying or damaging property

Answer 39

Destroying or damaging - Maximum 10 years
Arson - 15 years
Arson, causing serious injury/death max 25 years.

Question 40

Computer crimes

Answer 40

• possession of data with intent to commit a serious computer offence. 3 years Max
• unauthorised access to or modification of restricted data. 2 years max
• unauthorised impairment of electronic communication. 10 years maximum

Question 41

Identity theft

Answer 41

Involves the supply of identification information. It is also an offence to posses identification information or equipment used to make identification information. Maximum 3 years imprisonment. .

Question 42

Abduction

Answer 42

The taking of a person by force or detaining them against their will with the intention to marry or for sexual purposes. Maximum 10 years.

Question 43

Kidnapping

Answer 43

The taking away if another person with the intention to. To demand payment or to gain advantage. Maximum 25 years.

Question 44

Child stealing

Answer 44

Unlawfully entice or take away a child under 16 from their parents with the intention to deprive the parents of possession. Maximum 5 years.

Question 45

List defences to property crimes

Answer 45

• factual dispute
• lack of intent
• honest and reasonable mistake
• defence of impossibility
• mistaken identity

Question 46

Factual dispute (defence to property dispute)

Answer 46

The accused can claim the facts brought forward by prosecution was wrong or doesn’t provide enough evidence.

Question 47

Lack of intent (defence property crime)

Answer 47

Arguing there was no actus reus or Mens Rea to commit crime.

Question 48

Honest and reasonable mistake (defence property crime)

Answer 48

Accused must prove that a genuine mistake was made and wasn’t committed with Mens Rea

Question 49

Defence of impossibility (defence property crime)

Answer 49

Accused can claim they were at a different location at time of crime

Question 50

Mistaken identity (defence property crime)

Answer 50

The accused can claim there is a case of mistaken identity and they are not the alleged.