C5 Indictable offences AOS2

Question 1

List the seven general defenses to a crime

Answer 1

Self-defense, mental impairment, duress, sudden or extraordinary emergency, automatism, intoxication, and accident;

Question 2

Self-defense

Answer 2

An accused could use the defence of self-defence to a committed crime if they believed that their actions were necessary to protect or defend themselves and perceived their actions to be a reasonable response in the circumstances. The burden of proof falls on the prosecution to prove that the accused did not act in self-defence.

Question 3

Mental and impairment

Answer 3

An accused may use the defence of mental impairment if they did not know what they were doing because they had little understanding of the nature and quality of their actions and they did not know their conduct was wrong or could not reason or think about their conduct like an ordinary person. The burden of proof falls on the party who raises the defence and does not result in an ordinary verdict rather a secure treatment order.

Question 4

Duress

Answer 4

An accused may use the defence of duress if, at the time of the offence they had a reasonable belief that a threat of harm existed upon them, the threat would have to be carried out unless the offence was committed, committing the offence was the only reasonable way to avoid threatened harm, and their conduct was a reasonable response to the threat. The burden of proof falls on the prosecution.

Question 5

Sudden or extraordinary emergency

Answer 5

An accused may use the defence of sudden or extraordinary emergency as a defence if they can prove that there was a sudden or extraordinary emergency, their actions were the only reasonable way of dealing with the situation, and their actions were a reasonable response to the situation. The burden of proof falls on the prosecution.

Question 6

Automatism

Answer 6

Automatism suggests that the accused committed the offence involuntarily due to having at the time of the offence, a total loss of control of their bodily movements (i.e. not consciously aware of what they were doing) and so could not form an intention to commit a crime (mens rea). (While sleeping or sleepwalking, suffering a concussion, during an epileptic seizure, as a result of a medical condition, or as a side effect of the use of medication). The burden of proof falls on the prosecution.

Question 7

Intoxication

Answer 7

An accused may use the defence of intoxication to criminal offences if they can prove that they acted involuntarily, without intent due to being in an intoxicated state due to fraud, a reasonable mistake, force, or the effects of the proper use of prescription or non-prescription medication. The accused must prove that they were not in a self-inflicted or self-induced state.

Question 8

Accident

Answer 8

An accused may use the defence of an accident if they can prove that the actions of the offence were involuntary, unintentional, or reasonably unforeseeable by an ordinary person.

Question 9

Defence to a crime

Answer 9

A justification or lawful excuse for committing a crime.

Question 10

Secure treatment order

Answer 10

A sanction that requires the accused to be compulsorily detained and receive treatment at a mental health facility.

Question 11

Murder

Answer 11

The intentional unlawful killing of another person with malice aforethought by a person who is of the age of discretion (i.e. 10 years old or older) and of sound mind.

Question 12

Unlawful homicide

Answer 12

A classification of crime that is the killing of another person without legal justification.

Question 13

List three examples of unlawful homocide

Answer 13

Infanticide, child homicide, culpable driving causing death;

Question 14

Attempted murder

Answer 14

When an accused intended to commit the offence, the accused believed the offence was going to take place, and the accused was the one who committed the offence. The attempt has to be serious enough that death could have resulted from it.

Question 15

Malice aforethought

Answer 15

The malicious intention to kill or cause serious injury to a person.

Question 16

Manslaughter

Answer 16

The unlawful killing of a person due to a reckless, dangerous act or negligent behaviour.

Question 17

Involuntary manslaughter

Answer 17

Involuntary manslaughter is defined as the unlawful killing of another human being without intent as a result of another person’s negligent actions (killing someone and not realizing your actions could cause death).

Question 18

Voluntary manslaughter

Answer 18

The crime of killing another person unlawfully in circumstances that do not amount to murder (for example, without premeditation or as a result of mitigating circumstances such as self-defence).

Question 19

Taking your victim as you find them

Answer 19

The principle of law that dictates that if a victim dies without the offender knowing they could be unusually vulnerable to certain harm to the extent of death, the offender is still responsible and will be charged with murder.

Question 20

List the six elements of murder

Answer 20

The killing was unlawful, the victim was a human being, the accused was over the age of discretion, the accused caused the victim’s death, the accused was a person of sound mind, and there was malice aforethought;

Question 21

Causation (casual link)

Answer 21

The direct relationship between event one and event 2 where event 1 was the reason event 2 happened and event 2 would not have happened by itself without event 1.

Question 22

How did statute law help in developing the offence and defences?

Answer 22

The penalty for murder is established by parliament and sets out the defences available to murder, including those originally established by common law and some established by parliament;

Statute law is able to pass legislation at any time to change the law relating to murder, including being able to abrogate principles of murder that have been established by common law;

Question 23

How did common law help in developing the offence and defences?

Answer 23

Murder is an old common law offence that includes common-law establishing its definition, its elements, and some of the defences which were all established by the courts.

Question 24

Murder rate

Answer 24

The number of murders per 100 000 aged 10 years and over.

Question 25

Victim impact statement

Answer 25

A statement filed with the court by a victim or their respective family in the event of their death, that is considered by the court when sentencing. It contains particulars of any injury, loss or damage suffered by the victim as a result of the offence.

Question 26

Describe the impact of murder on the victim (and their family and friends)

Answer 26

Financial disadvantages (e.g. funeral costs), loss of life, and shock, fear, grief, confusion, anger, and emotional trauma;

Question 27

Describe the impact of murder on the community (or society)

Answer 27

Murder destroys public confidence in the ability of the police and criminal justice system to protect the community,

People who live in close proximity to the murder may no longer feel safe destroying an individual’s sense of safety

People may feel vulnerable and become cautious about where they go and whom they interact with;

Question 28

Describe the impact of murder on the offender

Answer 28

Offenders may suffer from feelings of shame and remorse

Offenders may have to pay the significant legal costs and inflict financial hardship on their family

Upon release from prison, offenders may find it difficult to re-establish connections with their family and friends, rehabilitate into society, find employment, and housing

Question 29

List the general defenses used for culpable driving causing death

Answer 29

Duress, sudden and extraordinary emergency, and automatism

Question 30

List the two elements of culpable driving causing death

Answer 30

The accused was the driver of a motor vehicle, and the accused culpably caused a person’s death while driving the motor vehicle

Question 31

Explain the first element in culpable driving causing death (the accused was the driver of a motor vehicle)

Answer 31

You must be found to be largely in control over the motor vehicle at the time of the offence

Question 32

Explain the second element in culpable driving causing death (the accused culpably caused a person’s death while driving the motor vehicle)

Answer 32

For a person to be found culpable of causing death by a motor vehicle the accused must have been driving recklessly, negligently, or driving under the influence of alcohol or a drug. If these conditions are met, the individual can be said to be culpable for the events that occurred.

Question 33

Reckless driving

Answer 33

Driving that consciously and unjustifiably disregards a substantial risk that another person could die or be seriously injured.

Question 34

Negligent driving

Answer 34

Driving that fails to a reasonable standard to care that of which a reasonable person would have observed in similar circumstances, and that others in the community have a right to expect.

Question 35

Driving under the influence of alcohol or a drug

Answer 35

Driving in a condition that makes the accused incapable of properly controlling the vehicle.

Question 36

Culpability

Answer 36

The responsibility for a fault or wrongful action (or inaction).

Question 37

How did statute law help in developing the offence and defences? - CD

Answer 37

Culpable driving causing death is a statutory offence and a main indictable offence that has been defined in legislation (as well as redefined by the courts).

Question 38

How did common law help in developing the offence and defences? - CD

Answer 38

The elements of culpable driving causing death do not have a history of development through common law because of this the court’s role is to interpret and apply relevant legislation to resolve the cases brought before them (e.g. for the purpose of convicting an accused of negligent driving, is a concept that has been clarified by the courts).

Question 39

Describe the impact on the victim (and their family and friends) - CD

Answer 39

Loss of life, trauma, grief and loss, and related medical issues. Disruption to family life, funeral costs and lost labour and income in the household.

Question 40

Describe the impact on the community (or society) - CD

Answer 40

Need for coronial services, increased need for police, fire, and emergency services, and trauma to emergency services workers responding to fatal collisions.

Question 41

Describe the impact on the offender - CD

Answer 41

Medical treatment and costs (if the offender is injured), guilt or shame in causing death, and the likelihood of a custodial sentence. Damage to, replacement or impounding of the vehicle.