Chapter 2- Criminal Law

Question 0

What is a victimless crime? Provide an example.

Answer 0

A crime that can be seen as harming to no-one other than the person committing the act. For example, the use of drugs may not be harmful to anyone other than the person using the drugs.

Question 1

How is crime defined?

Answer 1

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

Question 2

Elements of a crime-

Answer 2

Burden of proof
Standard of proof
Presumption of innocence
Age of criminal responsibility

Question 3

Burden of proof-

Answer 3

The prosecution has the burden of proving that the accused is guilty (onus of proof). The accused is presumed innocent until proven guilty.

Question 4

Standard of proof-

Answer 4

The prosecution must prove that the alleged offender is guilty of a crime beyond reasonable doubt.

Question 5

Presumption of innocence-

Answer 5

A person is presumed to be innocent until he or she is proved to be guilty.

Question 6

Age of criminal responsibility-

Answer 6

It is presumed that a child under the age of 10 years cannot form the intention to commit a crime, therefore cannot be charged with committing a crime. It is also assumed that a child between the ages of 10 & 14 is mentally incapable of committing a crime (Doli Incapax). This though can be overturned if it can be shown that the child had the mischievous disposition and knowledge that he/she was doing wrong.

Question 7

Summary offence, example:

Answer 7

Summary offences less serious in nature criminal offences that are heard in the Magistrates Court. (Parking fine contest, trespass, drink-driving)

Question 8

Indictable offences, example:

Answer 8

Indictable offences are more serious criminal offences that can be heard before a judge and jury. (Culpable driving, murder, rape)

Question 9

Indictable offences heard summarily, example:

Answer 9

Indictable offences heard summarily are indictable offences that can be heard in the Magistrates Court as if they were summary offences. ( theft up to a certain amount)

Question 10

What is a strict liability of a crime?

Answer 10

This means that there is no necessity to prove intention to commit the crime for a person to be found guilty. Examples include: traffic offences, serving liquor to an under age person.

Question 11

Can juries return a majority verdict? Explain.

Answer 11

The jury must first attempt to reach a unanimous verdict. If not possible, a majority verdict consisting of 11 of 12 is acceptable for criminal offences other than murder, treason, trafficking a large commercial au airy of drugs. If not reached, the jury is said to be a hung jury.

Question 12

Define murder-

Answer 12

Murder is the unlawful killing of another person with malice aforethought, by a person who is of the age of discretion and of sound mind.

Question 13

Elements that must exist for a person to be guilty of murder:

Answer 13

The killing was unlawful
The accused was a person over the age of discretion 
The victim was a human being 
The accused was a person of sound mind 
Malice aforethought existed

Question 14

Elements of murder- The killing was unlawful.

Answer 14

The accused did not have a lawful reason for causing another person’s death.

Question 15

Elements of murder- The accused was a person over the age of discretion.

Answer 15

Must be at least 10 years of age.

Question 16

Elements of murder- The victim was a human being.

Answer 16

Not an animal

Question 17

Elements of murder- The accused was a person of sound mind.

Answer 17

The accused’s actions must be voluntary, conscious and deliberate. Someone with mental disability may not be of sound mind.

Question 18

Elements of murder- Malice Aforethought existed.

Answer 18

The intention to commit the crime. To exist, the accused must have acted voluntarily and have either the:
Intention to kill and or inflict serious injury
Reckless indifference
Intention to assault a person who was trying to make a lawful arrest, which resulted in a person’s death.

Question 19

What is the age of criminal responsibility?

Answer 19

Children below the age of 10 are not liable for crimes, between the ages of 10 & 14 it must be proven that the child knew the difference between right and wrong. After this age a child/adult can be charged with committing a crime.m

Question 20

Criminal Negligence (duty of care breached):

Answer 20

Somebody fails to provide a reasonable standard of care. Reasonably foreseeable a loss of life could occur.

Question 21

Unlawful acts:

Answer 21

Link between dangerous act and loss of life. The accused intended the act though not the death. A reasonable person would have foreseen the possibility of a loss of life.

Question 22

Define manslaughter-

Answer 22

Is when a loss of life has occured, but not with the intent to kill as a result of a dangerous act.

Question 23

Describe the defence to homicide of self-defence. When could self defence be seen as reasonable?

Answer 23

The accused must prove he or she:
~ had a belief that it was necessary to act to defend themselves or another person from serious harm or injury.
~ had reasonable grounds for this belief
~ had reasonable belief that harm could occur. This involves past history, severity of action, plausibility test, immediacy of the harm etc.

Question 24

What defences are their to murder?

Answer 24

Duress
Mental Impairment
Automatism
Intoxication 
Accident

Question 25

Duress (defence) to murder:

Answer 25

Is where a person acts under duress when they reasonable believe that:

• a threat to harm (self or members of family) will be carried out unless the person commits a crime.
• committing a crime is reasonable given the circumstances.

Question 26

Mental impairment (defence) murder to murder:

Answer 26

This defence could be used if:

• the defendant did not know what he/she was doing, could not understand the nature of their actions.
• the defendant could not reason that the act was wrong.

Question 27

Automatism (defence) to murder:

Answer 27

It must be shown that the defendant was unable to form the intent:

• Mist show that the act was involuntary (done by muscles not mind)
• confused/ sleep-walking
• loose control of the mind

Question 28

Intoxication (defence) to murder:

Answer 28

In the case of the accused’s intoxication being self-induced, the court will consider how a reasonable person who is not intoxicated would’ve acted. However, if the drunk ness was not self-induced, the court may consider the impact of the intoxication.

Question 29

Accident (defence) to murder:

Answer 29

If the accused can prove that the death was an accident, this leads to an acquittal. (No men’s rea) (didn’t posses a guilty mind)

Question 30

What was the descion in the case of R Vs O’Connor? How did Parliament later change the impact of this descion?

Answer 30

It established a precedent that intoxication maybe relevant in providing whether the accused acted voluntarily and had the intent. He appealed his conviction and the appeal was allowed. The defence was later changed in 2005 to “In the case of the accused’s intoxication being self-induced, the court will consider how a reasonable person who is not intoxicated would’ve acted. However, if the drunk ness was not self-induced, the court may consider the impact of the intoxication.”

Question 31

What is a precednet?

Answer 31

It is applying past descions to future cases, a precedent makes law, courts making descion.

Question 32

Culpable driving-

Answer 32

A person can be found guilty of culpable driving causing death if the person was reasonable for the death of another road user while driving a motor vehicle. (Breton Chaplin)

Question 33

Assault-

Answer 33

Assault involves the direct or indirect (threats to commit, or committing physical harm to another person) application of force by a person to the body, clothing or equipment of another person where the application of force is:
- without lawful excuse
- intentional or reckless and results in bodily injury, pain, discomfort, damage, insult or deprivation of liberty.
Max penalty of general assault is 5 years.
Max penalty for common assault is a fine of 15 penalty units or 3 months in prison.

Question 34

Grooming-

Answer 34

Concerns predatory conduct undertaken to prepare a child for sexual activity at a later time. This offence applies where an adult communicates, by words or conduct, with a child under the age of 16 years or with a person who has care supervision or authority for the child with the “intention of facilitating the child’s involvement in sexual conduct”.

Question 35

Stalking-

Answer 35

Is when a person keeps contacting or spying on oneself with no consent which can cause fear and distress on oneself. This includes text, phone calls, sending letters, gifts etc.

Question 36

How might the law be changed in regards to a defence for the crime of rape?

Answer 36

Under current laws, a person could be guilty of rape if aware it was possible the victim did not consent, or if the person did not consider whether there was consent. Under the proposed changes, an accused would be able to be found guilty of rape if they did not reasonably believe the victim consented.

Question 37

Outline the “lawful use of force” defence to assault.

Answer 37

The force was lawful. The use of force must not be disproportionate with the actions taking place. For eg: the use of force to prevent crime, consent the use of force, use of force, as in reasonable under the circumstances in correction of a child (boxing).

Question 38

Explain the differences between the crimes of theft, robbery and theft.

Answer 38

Theft- dishonesty taking a person’s property.
Robbery- using force, of putting a person in fear of force, during the act of stealing.
Burglary- entering a building with the intention to:
-steal
-commit assault as a trespasser
- damage a building or property as a trespasser

Question 39

What is the maximum penalty for ‘general assault’ under the Summary Offences Act 1966?

Answer 39

5 years