Criminal law Flashcards
what is a crime?
a crime is a criminal offence committed against the state that inflicts harm on another individual and/or society
common law
refers to the decisions made by judges about issues that arise in court. Judges can make law when a matter comes before the court for which there is no existing law.
statute law
refers to a law passed by parliment. Statute law is the most common form of law within our society. Statute law takes precedence over common law. Statute law is commonly reffered to as legislation
Age of criminal liability
If below 10 cant be charged
10-14 the doctrine of doli incapax applies
14+ can be charged
Summary offences
Less serious offences found in “Summary offences act 1966 [VIC], heard in the magistrates court
Indictable offences
Serious offences, found in “crimes act 1958 [ VIC]” under section 72, heard in the county court or the supreme court-trial division
stakeholders in a criminal situation
victim, accused, suspect, witness
victim
a person who has suffered a loss due to actions or omissions of another
Accused
a person who is charged with a crime and must stand trial in a court to determine whether they are guilty or not
suspect
a person who is thought to have committed a crime and is being investigated
witness
a person who has seen or heard information relevant to a alledged crime
offender
a person who has broken the law
Actus Reus
wrongful act
actus reus refers to the physical performance of the criminal act that is the action taken or omitted by a person
Mens Rea
a guilty mind
refers to a person’s awarness of the fact that their conduct is criminal: this is criminal intent
Bail
most people who are charged with an indictable offence will receive bail [ release from custody]
remand
if the accused is likely to be in danger to society or could flee the country before they are due in court, the accused will be held on remand
presumption of innocence
anyone who has been charged with a crime is innocent until proven guilty
purpose of commital hearings
to determine If there is enough evidence against a person who has been charged with an indictable offence for the matter to proceed in trial
Role of the courts
interpret and apply the law, determine the verdict [guilty or not guilty], impose a suitable penalty for those who have broken the law.
burden of proof
in criminal cases, the prosecution has the burden of proving the guilt of the accused.
standard of proof
in order to establish the guilt of the accused, the standard to which the prosecution must establish that the accused is guilty beyond reasonable doubt.
prosecution
the party which presents and argues the case on behalf of the crown and against people accused of serious crimes. A crown prosecutor is an experienced criminal barrister representing the crown.
defence
party which presents and argues the case on behalf of the accused. Legal counsel for the accused[defence barrister] puts forward a defencer or defense to the crimes in which the accused has been charged
role of the court
interpret and apply the law, determine the verdict [guilty or not guilty], impose a suitable penalty for those who have broken the law
burden of proof
in criminal cases, the prosecution has the burden of proving the guilt of the accused
standard of proof
in order to establish the guilt of the accused, the standard to which the prosecution must establish that the accused is guilty beyond reasonable doubt
prosecution
the party that presents and argues the case on behalf of the crown against people accused of serious crimes. A crown prosecutor is an experienced criminal barrister representing the crown
defence
party which presents and argues on behalf of the accused. Legal counsel for the accused [defence barrister] puts forward a defence to the crimes which the accused has been charged
role of the jury
the role of the jury in both criminal and civil trials is to determine questions of fact and to apply to law, as stated by the jury by the judge, to make those facts reach a verdict
catagories for potential jurors
ineligible, disqualified, excused, eligible
strengths of the jury
allows for transparency of the legal system, the community can be educated on legal system, decisions made by jury are less likely to be appealed
weaknesses of the jury
adds time to the trial process, ordinary citizens don’t have an understanding of the law, can be biased, add costs to the process
murder
when a person intentionally or recklessly kills another
manslaughter
the unlawful killing of another without malice afterthought
elements of murder
- the accused must be a person
- the victim must be a person
- the person must be above the age of discretion
- the killing must be unlawful
- accused must be sound of mind
- the accused must cause the death of the victim
- must possess malice afterthought
- the accused must be a person
the killing must be by a person, police can not charge animals or nature with murder
- the person must be above the age of discretion
must be above 10
- the victim must be a person
the killing must be of a person who was alive at the time eg can be charged with murder on animals, a person already dead,a foetus
- the killing must be unlawful
nearly always unlawful, which means the accused does not have the legal right to kill the person
- accused must be sound of mind
must possess soulfulness of mind, cannot be charged if psychiatric, mental illness, hallucinations, PTSD
- the accused must cause the death of the victim
the prosecution must prove that there was a direct relationship between action of accused and death of the victim
- must possess malice afterthought
refers to the intention to kill, for the accused to be convicted it must be proven by the prosecution that the accused possessed malice afterthought
self-defence
self-defence is a full defence to murder. If a person kills another person in self-defence or in defence of another person they are not guilty of an offence, rather they have just committed justifiable homicide
mental impairment
if the court is satisfied that at the time of the offence, the accused was so mentally impaired that they did not understand the nature of the act that forms the basis of the charge, the law will not hold them criminally liable.
Theft
A person steals if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it
3 elements of theft
dishonesty, appropriation, intention to permanently deprive
elements of theft: dishonesty
knowing there is no legal right to take the property:
- doesn’t have legal right/authorised by someone to take the property.
- don’t/wouldn’t have had owner’s consent in the circumstances
elements of theft: appropriation
took the property without owner’s consent. Includes taking and keeping the item, using, devaluing or trying to sell it or give it away.
elements of theft: intention to permanently deprive
The accused intends to assume the rights of the owner or not give them back.
Eg. - person receives property by mistake (should be returned) but person keeps it instead.
- person borrows something but then doesn’t return it for a long period of time.
Defences to theft (general)
It can be argued that:
-the accused never actually took possession of the property
-the property stolen was not actually ‘property’
-the accused did not take the property with the intention of permanently depriving them
-the accused believed they had a legal right to the property.
Specific defences to theft:
Mental impairment
the accused didn’t know what they were doing was wrong at the time of the offence due to a limited understanding of the nature and quality of their actions
Defences to theft:
Duress
A person had reasonable belief that:
-a threat of harm existed
-the threat would be carried out if the offence wasn’t committed
-committing the offence was the only reasonable way to avoid the threatened harm
-the persons conduct was a reasonable response to the threat
Defences to theft:
Sudden or extraordinary emergency
the actions of the accused was the only reasonable way of dealing with the situation
Defences to theft:
Intoxication
If self induced: Unlikely to be successful defence
If not self induced: Conduct is compared to that of a reasonable person intoxicated to the same level as the accused.
Defences to theft:
Automatism
If the accused can prove they were:
- sleeping/sleepwalking
- suffering from concussion
- suffering from an epileptic seizure
- suffering a side effect from a mental condition or proper use of medication
