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Criminal Flashcards

0
Q

What are the elements of manslaughter?

A
  1. Killed
  2. Another person
  3. Unlawfully
  4. In circumstances that do not amount to murder i.e. usually this is because the prosecution cannot prove an intention to kill or do grievous bodily harm.
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1
Q

For a person to be convicted of murder, there must be four elements present. These are:

A
  1. Killed
  2. Another person
  3. Unlawfully
  4. a.) with an intention to kill or do grievous bodily harm or
    b. ) in the prosecution of an unlawful purpose, the accused did an act which was likely to endanger life, and the victim died as a result of that act.
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2
Q

What are the elements of grievous bodily harm?

A
  1. Caused
  2. An injury that amount to grievous bodily harm
  3. To another person
  4. Unlawfully
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3
Q

What type of injury amounts to grievous bodily harm?

A

An injury will amount to grievous bodily harm if there is:

  • a loss of a distinct part or organ of the body (i.e. loss of an eye)
  • serious disfigurement (facial scarring) or
  • A bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or to cause permanent injury to health (i.e. liver damage)
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4
Q

What are the elements of unlawful wounding?

A
  1. Wounding
  2. Of another person
  3. Unlawfully
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5
Q

What constitutes “wounding” under the Criminal Code?

A

Judges have held that it means all the layers of the skin must be broken - hence bleeding is required. It only applies to external bleeding as opposed to internal bleeding which would be another offence such as doing grievous bodily harm.

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6
Q

What are the elements of type one assault?

A
  1. The actual application of force by striking, touching, moving or applying force of any kind.
  2. To the person of another
  3. Directly or indirectly
  4. Without consent or if the consent is obtained by fraud. (This is also known as battery)
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7
Q

What are the elements of type two assault?

A
  1. Bodily act or gesture
  2. Attempts or threatens to apply force of any kind
  3. To the person of another
  4. Without expressed or implied consent
  5. Where there is an actual or apparent present ability to effect that purpose (Also known as assault)
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8
Q

What are the elements of stealing?

A
  1. Taking or converting
  2. Property of another
  3. With fraudulent intent
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9
Q

Explain “taking and converting”

A

Taking or converting to your own use involves physical movement of the thing stolen.
Converting means dealing with the property in a way that is inconsistent with the rights of the owner.

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10
Q

Explain what we mean by “property of another person”

A

Property of another person could be stolen, provided it is movable or capable of being made moveable. * A person cannot steal his or her own property.

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11
Q

Explain what is meant by “with fraudulent intent”.

A

The most common fraudulent intent is to permanently deprive the owner of the things stolen. Another fraudulent intent is to deal with it in such a manner that it cannot be returned in the same condition in which it was at the time of taking or converting.

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12
Q

What are the elements of shoplifiting?

A

There is no criminal offence called “shop lifting”. A person accused of shop lifting is charged with either stealing or in some cases, taking goods away under the “Regulatory Offences Act 1995 (Qld). This Act only applies to goods taken worth less than $150.

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13
Q

What are the elements of robbery?

A
  1. Stealing
  2. Threatens, or use of, actual violence.
    Robbery is different from stealing because it involves the additional requirement of violence. This can be the use of actual violence, or threatening to use actual violence TO ANY PERSON OR PROPERTY in order to obtain stolen things.
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14
Q

Explain the various elements of breaking and entering and burglary.

A

Entering - requires entry into some part of a building by the accused or by some instrument being held by the accused.
Breaking - requires opening of some part of a building which is closed or a part that is an opening like a chimney that is not intended to be used for entry. Turning a door handle or pushing open a window is enough. No actual damage needs to be done. It is also includes forcing entry by threat. Accused must have an intention to commit an indictable offence, example, stealing. Offences occurring at night are called burglary. (6pm-6am)

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15
Q

Explain the offence of receiving.

A

Receiving is the offence of receiving property, KNOWING, BELIEVING OR SUSPECTING that it has been obtained by means of an indictable offence, usually stealing or robbery. If the Crown cannot prove actual knowledge, it is sufficient to prove that the person had REASON TO BELIEVE THE GOODS WERE STOLEN.

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16
Q

What are the elements of Arson?

A
  1. Willfully
  2. Unlawfully
  3. Sets fire to
  4. Things such as buildings (also structures, vessels, crops, aircraft and motor vehicles).
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17
Q

What are the elements of wilful damages to property?

A
  1. Willfully
  2. Unlawfully
  3. Damages or destroys
  4. Property of another
    Note this includes graffiti. Please also note a related offence in section 17 of the “Summary Offences Act 2005 (Qld)” is possession of a graffiti instrument (such as spray can of paint) without lawful, excuse, in circumstances that might give rise to a reasonable suspicion that it has been used, is being used or is intended to be used, to commit a graffiti offence.
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18
Q

Describe the offence of fraud.

A

Fraud is an offence which includes categories of dishonest conduct such as misappropriation of property, false pretences, passing valueless cheques and cheating. It deals essentially in dishonest conduct in regard to property. Conduct is dishonest if the standards of ordinary persons in the community would consider the act dishonest, and if the person subjectively knew that what they were doing was dishonest by those standards.

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19
Q

Explain what is meant by computer hacking and misuse.

A

Explain what is meant by computer hacking and misuse. It is an offence to use a computer without the consent of the computer’s controller. Damage includes harm to the computer hardware and software, as well as any alteration, addition, removal or loss of information on the computer.

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20
Q

Name the Qld legislation which deals with offences relating to public order.

A

Summary Offences Act 2005 (Qld)

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21
Q

Identify at least three miscellaneous offences that relate to public order which are provided for in the “Summary Offences Act 2005 (Qld)”

A

Being a public nuisance (disorderly, offensive, threatening violence, obscene, indecent or abusive language); possessing items that could be used for crime; selling potentially harmful things that could be inhaled or ingested and knowing they would be used for that purpose; publishing false advertisements on births, deaths, marriages; undertaking unregulated high risk activities e.g. hand-gliding, abseiling, wilful exposure of a person’s genitals in a public place; unlawful riding of a motor bike on public land; piercing certain body parts of minors; begging in a public place, tattooing minors; being drunk in a public place; trespass; throwing things at a sporting event.

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22
Q

Criminal offences are classified as indictable and non-indictable offences. What categories of offences are classed as indictable and what categories of offences are classed as non-indictable?

A

Indictable offences - Crimes and Misdemeanours

Non-indictable offences - Simple offences and Regulatory offences

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23
Q

Why are criminal offences classified into different categories?

A

It is relevant to determine in which trial court the trial will be heard and it is also relevant for the time limits for bringing an offence to court.

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24
Q

In which courts will crimes and misdemeanours be heard?

A

Crimes and misdemeanours are indictable offences and will be tried in the District or Supreme courts before a judge and jury.

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25
Q

What are some examples of indictable offences?

A

Indictable offences are serious offences such as doing grievous bodily harm and rape.

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26
Q

In which court are simple and regulatory offences heard?

A

Simple and regulatory offences are non-indictable offences which are always heard in a Magistrates court without a jury.

27
Q

How does the Ombudsman commence an investigation?

A

A written complaint from a member of the public is required. That person must already have exhausted the complaints process in the relevant government department. The ombudsman is not required to investigate every complaint (i.e. if a complaint is frivolous, the Ombudsman will not be required to investigate).

28
Q

How do you know whether an offence is indictable or not?

A

Because its offence section contained in the Criminal Code will state whether it’s a crime, misdemeanour or simple offence. All regulatory offences are in the Regulatory Offences Act (1985) and are minor offences.

29
Q

What are the time limits for bringing an offence to court?

A

A complaint of a simple offence must be made within one year. The prosecution of an indictable offence has no time limits.

30
Q

What is a committal hearing?

A

A committal hearing is designed to test whether the evidence against the accused is strong enough for the matter to proceed before a judge and jury in the District or Supreme Court. The decision a Magistrate has to make in committal hearing is not whether the accused is innocent or guilty, but if the police evidence is sufficient for a jury in the higher court to convict the accused. The test is not whether a jury would convict the accused but whether, on the evidence presented, if believed and unexplained, a jury COULD convict the accused.

31
Q

Committal hearings are also said to undertake the processor deciding whether there is a prima facie case. What is a prima facie case?

A

A prima facie case is a case that, on the face of it, is strong enough to call upon the person charged to answer it. In this preliminary hearing, the Magistrate is merely deciding whether there is enough evidence to justify in the higher courts.

32
Q

What are three benefits of Committals?

A
  1. Eliminates weak cases
  2. Enables the accused to know the case that he or she will meet in the trial.
  3. Identify guilty please early in the process.
33
Q

What will happen if at the end of the Committal proceeding, the Magistrate rules that there is no prima facie case (no case to answer)?

A

The charge against the accused does not proceed and is dismissed.

34
Q

What happens if the magistrate rules that there is a case to answer?

A

Then the Magistrate committed the accused for trial before a judge and jury and the accused is directed to appear at then sitting if the Supreme or District Court commencing on a specified date. At that stage, the accused ,a p,wad guilty or not guilty.

35
Q

Is it possible to proceed to trial without a committal hearing?

A

This can occur when the defence accepts that there is a sufficient evidence for trial. The prosecution must present an ex-officio indictment.

36
Q

Do all accused persons have the right to be represented by a lawyer?

A

Yes, this right is contained in Section 616 of the Criminal Code (Qld)

37
Q

In Qld, who is a child?

A

A child is a person under the age of seventeen years according to the Juvenile Justice Act 1992 (Qld).

38
Q

In Qld, at what age is a person deemed not to be criminally responsible?

A

The Criminal Code states that a person under the age of ten years is not criminally responsible. This means they cannot be charged with any offence. If a child is under the age fourteen, it has to be proved that, at the time of doing it, he or she had the capacity to know that he or she ought not to do that act.

39
Q

If a child commits a criminal offence, which court will they generally be brought before?

A

A child is generally brought before a Children’s Court. These are closed courts which means that members of the general public are excluded from the hearing. The Children’s Court may hear indictable offences against the child if the child and parent agree to it and the Magistrate considers that the case can be adequately dealt with by the court. If the offence carries a penalty of life imprisonment, it must be heard by the District or Supreme Court, with the same procedures as apply for am adult.

40
Q

Which party bears the onus of proof in a civil court hearing?

A

Plaintiff

41
Q

Which party bears the onus of proof in a criminal court hearing?

A

Prosecution

42
Q

What are the five aims of punishment?

A
  1. Retribution
  2. Rehabilitation
  3. Deterrence
  4. Denunciation
  5. Prevention
43
Q

What is retribution?

A

To punish in a just way - an eye for an eye, tooth for a tooth. it is seen as morally right for society to punish offence does directly for the hurt they abused to others. Their major focus is on their wrong doing of the offender and the seriousness of the offence. Many argue the punishment should be directly proportional to the severity and the nature of the offence (I.e. the punishment should fit the crime).

44
Q

What is rehabilitation?

A

It emphasises treatment and theory in the belief that if you can identify and eliminate the underlying cause of a person’s criminal behaviors a law abiding citizen could emerge. The aims are to change the offender’s personality, beliefs, skills or habits so that he or she will not reoffend, and return the offender to normal life in the community.

45
Q

What is deterrence?

A

The deterrent theory of punishment operates in two ways. First, there is a specific deterrence which stays that individual offenders must be punished so they learn not to commit further offencesd. The punishment is to deter the reoffending. Second, there is general deterrence which operates as a warning to the others so that they may be deterred from committing similar offences.

46
Q

What is denunciation?

A

This theory says that imposing punishment is one of the most effective ways to denounce unacceptable behaviour. It is a way of educating the whole community as to what is a appropriate behaviour. It is a symbolic, collective statement of society’s disapproval of the criminal behaviour and re-enforces that certain acts are wrongful.

47
Q

What is prevention?

A

The focus of this theory is the protection of society. Society can best be protected by preventing those offenders who seem likely to reoffend from doing so. This can be achieved by keeping offenders in prison for long periods, even for life in the case of very violent, dangerous offenders. Prevention also includes activities aimed to recent or minimise the likelihood of crime from being committed by preventative measures such as good surveillance, detention monitors and increased security.

48
Q

Which legislation outlines the aims or theories of punishment?

A

Penalties and Sentences Act 1992 (Qld)

49
Q

When sentencing an offender, what factors should judges and magistrates in Qld consider?

A

Penalties and Sentences Act include:

  • imprisonment should be imposed as a last resort.
  • whether violence has been used
  • how common the offence is
  • the distress caused to innocent people
  • whether the offence is a “one-off” or part of a series of offences.
  • how much assistance the offender gave police.
  • the amount of time already spent in custody.
50
Q

What factors relevant to the particular offender might judges and magistrates also consider when sentencing an offender?

A
  • the effect that imprisonment is likely to have on an offender’s family
  • the fact that children may be left without a parent
  • the number of previous offences a person has committed
  • pleas of guilty
  • cooperation with police
  • restitution to the victim
51
Q

Lost twelve sentencing options under the Penalties and Sentences Act

A
  1. Release with no record of conviction
  2. Suspended sentence
  3. Fine options order
  4. Fines
  5. Community service orders
  6. Probation
  7. Imprisonment
  8. Remissions
  9. Parole
  10. Release to work and time detention
  11. Capital punishment
  12. Restitution and compensation
52
Q

Explain “release with no record of conviction”

A

The court can make an order when no punishment or only a nominal punishment is imposed on the offender before making such an order, the court must have regard to the offender’s economic or social well-being or chances of employment and all the circumstances of the case.

53
Q

What is a suspended sentence?

A

When a judge or magistrate sentences an offender to imprisonment for five years or less, he or she may suspend the sentence - impact or whole - where is considered appropriate to do so.

54
Q

What is a fine option order?

A

A fine option order gives a defendant an opportunity to perform unpaid community service instead of paying a fine.

55
Q

What is a fine?

A

A court may impose a fine which may be in addition to, or instead of, any other sentence. In imposing a fine, the judge or magistrate also states the period of imprisonment if the fine is not paid. The offender is usually given time within which to pay the fine.

56
Q

What is a community service order?

A

This is an alternative to imprisonment. The offender may do community work instead of going to prison. The work is unpaid and the order must require a total service of not less than 40 hours or more than 240 hours. This is considered a “last chance” before jail, particularly for young offenders.

57
Q

What is probation?

A

Probation is an order releasing the offender, but requiring him or her to be supervised by an officer of the Qld Corrective Services Commission. The offender must report to that officer regularly and is not allowed to leave their state or their home address without permission. Most importantly of all, the offender promises, as part of the order, not to break the law.

58
Q

What is imprisonment?

A

Imprisonment is the most severe for of punishment available in Australia because it isolates the offender from the rest of society and restricts most of his or her rights and freedom. When an offender committed multiple offenses, they may be sentenced to separate sentences for each offense. Those sentences may be served concurrently (that is served at the same time) or cumulatively (that is one after the other).

59
Q

What is remission?

A

A remission is a shortening of prisoner’s term of imprisonment and is granted as a reward for obeying prison rules and for good conduct.

60
Q

What’s parole?

A

Parole is the conditional and supervised release of a prisoner before he or she has served the full term of imprisonment. Whether a person should be released on Parole is a decision made by the Qld Parole Board. Ordinarily, a prisoner is eligible for parole after serving half the imposed sentence. Offender’s who have committed a serious violent offense such as rape, torture or manslaughter, must serve 80% of their sentence before being considered for parole. The sentencing judge or magistrate may recommend a “non-parole period”. That is a minimum people which the offender is not eligible for parole. A prisoner on parole is udder strict supervision and condition are imposed. If the parolee does not comply with the conditions, he or she is returned to prison to complete the sentence.

61
Q

What is release to work and home detention?

A

The release to work where was introduced in 1986 to allow prisoners, especially long term ones, to adjust to a normal working life. A prisoner may apply any time after they have served half their sentence. The prisoner is released during the day to perform work outside the prison but returns to spend the evening in jail. Similarly, home detention allows the prisoner to serve part of a sentence in their home preparation for release from prison.

62
Q

What is capital punishment?

A

Qld and Australia does not have capital punishments (the death penalty). Some countries that do still have capital punishment, include China, the USA and Saudi Arabia.

63
Q

What’s restitution and Compensation (important)?

A

The Penalties and Sentences Act gives a court power to order restitution of property or pay compensation for damage to property to injury suffered by any person caused by the offense. A common example of restitution is either the return of goods stolen or the payment of their value. A court can also order that compensation may be paid to a police officer as well as to the victim of the crime. Applications for compensations for injuries an be made after the trial.

64
Q

What is a criminal record?

A

A criminal record is a lost of a persons previous criminal conviction. An alleged offender’s criminal record cannot be taken into account during a trial however, it will be presented to the court during sentencing. A person with a large history of being convicted for crimes may receive a (words unclear 09:59) penalty than someone who does not have any previous criminal conviction. Having a criminal record makes it difficult to obtain some types of employment. In many types of employment, a criminal record check is required before a prison can be employed.

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