ch 4- proving guilt Flashcards
criminal law
an area of law that defines behaviours and conduct that are prohibited (i.e. crimes) and outlines sanctions (i.e. penalties) for people who commit them
crime
an act (i.e. undertaking an action) or omission (i.e. failing to undertake an action) that is against an existing law, harmful both to an individual and to society, and punishable by law (by the state)
sanction
a penalty (e.g. a fine or prison sentence) imposed by a court on a person guilty of a criminal offence
victimless crime
an offence that only involves the offender(s) and where no direct harm is suffered by
a victim. The offence also goes against what society considers to
be acceptable and
can indirectly harm individuals and the wider community
fine
a sanction that requires the offender to pay an amount of money to the state
imprisonment
a sanction that involves removing the offender from society for a stated period of time and placing them in prison
purposes of criminal law
protect individuals, protect property, protect society, protect justice
protect individuals
establishes crimes and processes to deal with people who commit these crimes.
makes murder, theft, rape, arson and robberies crimes and are aimed at protecting individuals from these behaviours
protect property
protect privately owned and public property- land and the environment and personal goods
its a crime to trespass or steal
protect society
protect the community as a whole by setting standards and making it clear what behaviour is and isn’t tolerated by the community and legal system
maintain public order and safety
protecting justice
promote justice by providing processes to deal with offenders and to enforce the law
prevents victims and relatives from taking the law into their own hands
presumption of innocence
right of a person accused of a crime to be presumed not guilty unless proven otherwise
what is the presumption of innocence protected by
international covenant on civil and political rights 1966- international treaty
charter of human rights and responsibilities act 2006- vic
standard of proof
extent or degree to which a case must be proved in court
prosecution
the party that institutes criminal proceedings against an accused on behalf of the state- prosecutor
beyond reasonable doubt
standard of proof in all criminal cases- prove that there is no regular, reason to doubt that the accused committed the offence
how is the presumption of innocence protected? bspbspla
burden of proof- prosecution must prove guilt
standard of proof must be met
police officers must have good reason to arrest
bail- and bail hearings
silence is a right- not taken as guilt
prior convictions withheld
legal representation
appeal is a right
when does the presumption of innocence not occur?
a repeated terrorist doesn’t have the right to apply for bail and is immediately held in custody until their court hearing unless they can prove otherwise- reverses the burden of proof, and sometimes their presumption of innocence
actus reus
guilty act- the physical element of the crime
to be found guilty, the accused must have physically done the crime
mens rea
guilty mind- the mental element of the crime. to be found guilty the prosecution must prove their actions were voluntary and knowingly committed ( maliciously, recklessly, negligently and willfully).
state of mind at the time of offending
what are the 2 elements of a crime that must exist at the same time
mens rea and actus reus
strict liability
where culpability or responsibility for committing a crime can be established without needing to prove mens rea
what must the prosecution prove for strict liability crimes
the prosecution is not required to prove that the accused had the intention to commit the crime
they must establish that they proved the wrongful action
examples of strict liability crimes
most are summary offences- drink driving, fare evasion, failing to display p plates
what can you argue in ones defence for strict liability crimes
reasonable or honest mistake of fact
what is the age of criminal responsibility
minimum age a person must be to be charged with committing a crime
under 10
cannot be charged with a crime
10-13 years old
can be charged if the prosecution can prove that the child knew at the time of the crime their actions were wrong- must rebut doli incapax
doli incapax
a Latin term meaning ‘incapable of evil’. refers to the principle in Victoria that a child aged between 10 and 13 years is presumed to be incapable of forming mens rea (a guilty mind) because they do not have the intellectual or moral capacity to know the difference between right and wrong
what is doli incapax dependent on
age
upbringing
maturity
past criminal history
behaviour before during or after
medical and psychological assessments can be undertaken to determine intellectual and moral capacity to understand their actions
14 years and older
criminally liable for their actions
has the age of criminal responsibility been increased
many want it to be raised from 10-14
burden of proof- onus of proof
responsibility to prove the allegations in the case- generally held by the party who initiates the case or brings it to court- prosecution
when can the burden of proof be reversed
when the accused has the responsibility of proving something in the case
e.g. if drugs have been found on their property, the accused is assumed guilty unless they can prove the drugs weren’t in their posession
standard of proof
strength of the evidence needed to prove a legal case- must be beyond reasonable doubt
what does reasonable doubt mean
sensible and realistic, not imaginary or fanciful or an unrealistic possibility
what does it mean to classify a crime by social purpose or nature
it is according to whether involved in a crime against a person, property, wellbeing of society, or even the criminal justice system itself
division a
crimes against the person- homicide, assault, sexual offences
division b
property and deception offences- arson, property damage, burglary, deception, bribery
division c
drug offences- dealing, trafficking, manufacturing, drug use and possesssion
division d
public order and security offences- weapons and explosive offences, terrorism, disorderly and offensive conduct
division e
justice procedures offences- perjury and contempt of court
division f
other offences- regulatory driving offences, transport regulation offences
cybercrime
criminal offences using computes or other electronic systems and devices- hacking, creating malware, online fraud
prejudice motivated crimes
intolerance, bias and discrimination towards another group based on a personal characteristic ( race, religion, sex, age)
can increase feelings of insecurity and fear
organised crime
undertaken in a planned and ongoing manner by organised syndicates or gangs
often drug manufacturing, illegal sale of firearms, prostitution
juvenile crime
undertaken by people between 10-18 years
fare evasion, assault, property damage
white collar crime
criminal offences undertaken by corporate people who are often well paid and hold trusted positions of employment and use it to gain financial advantage
theft, fraud, tax evasion and investment scams
indictable offences
serious crimes generally heard and determined in the higher courts (i.e. the
County Court and Supreme Court) before a judge and jury
the final hearing is called a trial
summary offences
minor crimes heard and determined in the Magistrates’ Court by a magistrate.
the final hearing is known as a hearing and the magistrate will determine verdict
indictable offences heard summarily
serious crimes that may be heard summarily, where the magistrates court will determine the verdict
punishable by less than 10 years imprisonment or 1200 penalty units and must be consented to by the accused
principal offender
commits an offence and has carried out the actus reus- the act or omission that constitutes to a crime
intentionally assist, encourage or direct another person to commit a crime knowing it may result
make an agreement with another person to commit a crime together knowing it may ensue
accessory
without lawful excuse assists a principal offender AFTER a crime has been committed- prevent them from being arrested, prosecuted, convicted or punished
To be an accessory, a person must believe or know that the offender has committed a serious indictable offence
can be found guilty regardless of the principal offender
