Criminal Law

Question 1

What is a crime?

Answer 1

A crime is a criminal offence committed against the state that inflicts harm on another individual and/or society.

Question 2

Two main sources of law

Answer 2

Common Law and Statute Law

Question 3

Common law

Answer 3

Common law refers to 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 relevant existing

Question 4

Statute law

Answer 4

Statute law refers to laws passed by parliament. Statute law is the most common form of
law within our society. Statute law takes precedence over common law. Statute law is
commonly referred to as legislation or an Act of parliament.

Question 5

Age of Criminal Liability

Answer 5

• If a person is below the age of 10 they cannot be charged with a crime.
• Between 10 – below 14 years the doctrine of doli incapax applies
  (incapable of forming
  intention to commit crime) unless the prosecution can prove intent e.g.
  police interviews, psychologists reports, actions afterwards.
• 14 years and above – can be charged with a crime

Question 6

Types of Offences

Answer 6

Criminal offences are classified as either summary or indictable.

Question 7

Summary offences

Answer 7

Summary offences are less serious offences, found in the Summary Offences Act 1966 (Vic), heard in the Magistrates Court.
Examples: unlicensed driving, minor assaults, offensive behaviour.

Question 8

Indictable offences

Answer 8

Indictable offences are serious offences, found in the Crimes Act 1958 (Vic)
under Section 72, heard in the County Court or the Supreme Court - Trial
Division.
Examples: aggravated burglary, theft, drug trafficking, property damage,
manslaughter and murder.

Question 9

Stakeholders in a Crime

Answer 9

Victim: a person who has suffered a loss due to the actions or
omissions of another.

Accused: a person who is charged with a crime and must stand trial in a
court of law to determine whether they are guilty or not guilty.

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 an
alleged crime.

Offender: a person who has broken the law

Question 10

Elements of an offence

Answer 10

In order for the accused to be found guilty of a crime, two elements must nearly always exist: Actus Reus and Mens Rea

Question 11

Actus Reus

Answer 11

Actus Reus = a wrongful act
Actus reus refers to the physical performance of the criminal act. That
is, the action taken or omitted (not taken) by a person.

Question 12

Mens Rea

Answer 12

Mens Rea= a guilty mind
Mens rea refers to a person’s awareness of the fact that their conduct is
criminal: this is the criminal intent

Question 13

Strict Liability offences

Answer 13

Strict liability offences only require the criminal action (actus reus) to be proven. Examples of strict liability offences include speeding offences. It is not necessary for the intention to speed (mens rea) to be proven.

Question 14

Principal offenders

Answer 14

A principal offender is someone who commits the crime. A person can
commit a crime even if they do not physically take part.

Regarded as a principal (primary) offender if they:
-Aid (assist)
-Abet (encourage)
-Counsel (give advice)
-Organise
…another person to commit an indictable offence (serious offence)

Question 15

Accessory

Answer 15

An accessory assists the principal offender after the criminal act

An accessory is someone who knowingly impedes the:
-Apprehension (seizure and arrest)
-Prosecution (when case is being heard in court)
-Conviction (finding of guilt by a court)
-Punishment (handing down a sentence by a court)
…of the principal offender.

Question 16

Bail

Answer 16

Most people who are charged with an indictable offence receive bail (release from custody).

Question 17

Remand

Answer 17

If the accused is likely to be a danger to society, or could
possibly flee the country before they are due in court (abscond),
the accused will be held on remand

Question 18

Presumption of Innocence

Answer 18

Anyone who has been charged with an offence is deemed to be innocent until proven guilty.
Being charged with a crime means that the accused is alleged to have committed an offence. It does not mean that the accused is guilty. The charge is an unproven accusation.

Question 19

Committal Hearings

Answer 19

The purpose of a committal hearing is to determine whether there is
enough evidence against a person who has been charged with an
indictable offence for the matter to proceed to trial, and for a conviction
to be handed down, in one of the higher courts (County Court or
Supreme Court - Trial Division).

Question 20

Role of the court

Answer 20

• Interpret and apply the law;
• Determine the verdict (guilty or not guilty); and
• Impose a suitable penalty for those who have broken the law

Question 21

The Prosecution:

Answer 21

The party which presents and argues the case on behalf of the
Crown against people accused of serious crimes.

Question 22

The Defence

Answer 22

The party which presents and argues the case on behalf of the
accused.

Question 23

Burden of Proof

Answer 23

In criminal cases, the prosecution has the burden of proving the guilt of the accused. This means that the prosecutor must prove in court that the accused did in fact commit the crime

Question 24

Standard of Proof

Answer 24

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 is beyond reasonable doubt.

Question 25

Beyond reasonable doubt

Answer 25

There needs to be no other alternative, or any doubt in the mind of the jury, that the accused committed the offences with which they are charged.

Question 26

Role of the Jury

Answer 26

The role of the jury in both criminal and civil trials is to determine
questions of fact and to apply the law, as stated by the judge, to those
facts to reach a verdict

Question 27

Elements of Murder

Answer 27

1. The accused must be a person
2. The victim must be a person
3. The accused must be above the age of discretion
4. The killing must have been unlawful
5. The accused must have been of sound mind
6. The accused must have caused the death of the victim (causation –
   actus reus)
7. The accused must have possessed malice aforethought (intention ‐
   mens rea)

Question 28

Defences to Murder

Answer 28

-Self Defence
-Mental Impairment

Question 29

Theft

Answer 29

A person steals if he or she dishonestly appropriates property
belonging to another with the intention of permanently depriving the
other of it

Question 30

Elements of Theft

Answer 30

1. Dishonest.
2. Appropriation (take for one’s own use) of property belonging to another.
3. Intention to permanently deprive another of the property.

Question 31

Defences to Theft

Answer 31

-Mental impairment
-Duress (The person’s conduct was a reasonable response to the threat)
-Sudden or Extraordinary Emergency
-Intoxication
-Automatism (sleepwalking, side effect of a medical condition, suffering
from concussion

Question 32

Criminal Sanctions

Answer 32

Criminal sanctions are penalties or other means of enforcement used to provide
incentives for obedience with the law, or with legal rules and regulations.

Criminal sanctions can include:
* Fines
* Community Corrections Orders
* Imprisonment

Question 33

Objectives of Criminal Sanctions

Answer 33

1. Just Punishment
2. Deterrence
3. Denunciation
4. Rehabilitation
5. Protection

Question 34

Types of Criminal Sanctions

Answer 34

-Imprisonment
-Parole

Question 35

Parole

Answer 35

Parole is when an offender is granted early release from prison after serving a non‐parole period. Being granted parole is not automatic; the offender must prove remorse and show that they have rehabilitated. A non‐parole period must be established for all terms of imprisonment beyond two years

Question 36

Aggravating factors

Answer 36

Factors which increase the seriousness of the offence or the offender’s culpability.
i.e. increase the severity of the sanction.

Question 37

Mitigating factors

Answer 37

Factors which reduce the seriousness of the offence or the offender’s culpability.
i.e. reduce the severity of the sanction.