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1/2 Legal > Criminal Law > Flashcards

Criminal Law Flashcards

1
Q

purpose of criminal laws

A

protect individuals (from physical, psychological and economic harm)
protect society (defining prohibited behaviours and outlining sanctions to deter people from illegal conduct)
Protect property (from harm)
Protect justice (by providing proper processed to enforce law and penalise offenders)

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2
Q

what is a crime

A

an act or omission that violates an existing law
causes harm to an individual or society and
is punishable by law

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3
Q

actus reus

A

the ‘guilty act’, the physical element of a crime

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4
Q

mens rea

A

the ‘guilty mind’, mental element of a crime
(knowingly, intentionally, negligently or recklessly committed wrongful action)

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5
Q

presumption of innocence

A

right for all accused persons to be considered and treated as innocent until the charge has been proven by the prosecution beyond reasonable doubt
(old common law principle) (protected in the International covenant on civil and political rights (1966) and the Charter of Human rights and Responsibilities Act (2006)

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6
Q

Police investigations RE POI

A

police must have reasonable grounds to arrest
right to silence except for name and address
only collect forensic evidence if reasonably suspect person has committed serious offence

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7
Q

Criminal trial RE POI

A

right to apply for bail
proven beyond reasonable doubt
prior convictions cannot be revealed in court

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8
Q

POI not being upheld

A

Counter-terrorism Legislation Amendment (2019 measures No1) Act 2019 (cth)
if previously charged w terrorism offence, hard to be granted bail in charged w 2nd terrorism offence

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9
Q

Standard and burden of proof (crim)

A

Prosecution
beyond reasonable doubt

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10
Q

strict liability offences

A

do not require mens rea element of a crime to be satisfied to find accused guilty
speeding/ running red light
serving underage alc in licensed venue
not wearing seatbelt
public transport fare evasion

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11
Q

defence to strict liability offences

A

honest and reasonable mistake of fact
accused honestly believed certain facts existed at time of offence

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11
Q

age of crim responsibility

A

minimum age a person must be to be charged with an offence
under10: cannot be charged
10-13: doctrine of doli incapax applies- incapable of forming criminal intent, can be proven that child knew actions were wrong at time of offence (medical and psychological assessments- intellectual and moral capacity)
14above: can be charged

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11
Q

classify crimes

A

crimes against person (homocide/ sexual offences/ robbery)
crimes against property (arson, theft, property damage)
drug offences (possessing, trafficking, using)
public order and security offences (perjury, breach of court orders)
public order and security offences (terrorism, offensive conduct)
other offences (driving offences, public transport fare evasion)
Cyber crime (computers/ ICT)
Hate crime (predjudice, discrim, bias)
Organised crime (planned and ongoing-syndicates, gangs)
juvenile crime (10-18)
White collar crime (ppl who work in govt, business, corporate areas)

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12
Q

Types of offence (summary offences)

A

minor or less serious offences
heard in Mag court w/o jury
law enforcecment sometimes sometimes have power to issue warnings or on spot fines
EG disorderly conduct, drink driving, minor assault

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13
Q

types of offences (indictable offences)

A

more serious criminal offences
heard in county or supreme court by judge and jury
Crimes Act 1958 (vic) are indictable unless otherwise stated
EG murder, manslaughter, culpable driving causing death, rape

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14
Q

Type of offence (indictable heard summarily)

A

Criminal Procedure Act 2009 (vic) = less serious indictable offences
can be heard in mag court
EG crim damage/ theft less than 100,000 OR minor assaults
Benefits:
faster adn cheaper (no jury)
max imprisonment= 1 offence=2 years, multiple offences= 5 years
Requirements:
offence not punishable by more than 10 yrs or fine greater than 1200 penalty units
accused must consent
court must deem appropriate (committal proceeding)

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15
Q

Principal offender

A

Person who commits offence by carrying out actus reus w requisite men’s rea
OR
is involved in the commission of a crime (don ot have to be physically present)
S323 Crimes Act 1958 (Vic)
- intentionally assisting, encouraging or directing another
- making an agreement to commit an indictable offence w another person

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16
Q

Accessory

A

knows or believes person that a person has committed a serious indictable offence (5 plus yrs)
THEN
acts to prevent the arrest, prosecution, conviction or punishment of that person
CAN be found guilty regardless of whether PO is found guilty

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17
Q

Murder definition

A

The unlawful and intentional killing of a human being by a person who acted voluntarily and without any lawful justification
Most serious homocide offence
Crimes act doesn’t outline elements but does have sanctions

18
Q

Elements of murder

A

Derived from common law
1. The accused killed a human being (AR)
2 The accused act was voluntary (AR)
3. The accused’s act caused the death of the victim (AR)
4. The accused acted with intention or recklessness (MR)
5. The killing was unlawful (no valid defences)

19
Q

Murder- death

A

The victim must be human- not an animal/ object/ unborn child

20
Q

The act was voluntary

A

Conscious and deliberate control of their bodily movements
INVOLUNTARY-
Sleep walking
Epileptic seizure/ muscle spasm
Unintentionally falling over
Involuntarily and grossly intoxicated

21
Q

Causation

A

Direct unbroken causal link bw accused’s action and victims death
Accused’s act doesn’t have to be only act BUT MUST BE
A substantial and operating cause of death
Have made it a natural consequence for the victim to seek escape (well founded apprehension of physical harm)

22
Q

Intervening acts

A

An act that breaks the chain of causation-
Act of nature (tidal wave/ strike of lightning) that is spontaneous, unpredictable or irregular
Medical treatment must be so overwhelmingly or palpably bad

23
Q

Eggshell skull rule

A

The accused must take the victim as they find them. Unless victim acts in an unreasonable way their beliefs, allergies or sensitivities are not considered an intervening act

24
Q

Malice afore thought

A

Accused specifically
Intended to kill or cause the victim grievous bodily harm
OR
Knows they will probably or likely kill or grievously injure someone and act with reckless indifference
MUST determine subjective mindset

25
Q

Onus of proof

A

The accused must present sufficient evidence to suggest that the defence is relevant and applicable to the case

Their responsibility, then falls upon the prosecution to disprove the elements of the defence beyond reasonable doubt 

26
Q

Self defence

A

The accused can raise this defence if

Believes that their actions were necessary to protect themselves, or someone else from death or grievous bodily harm
OR
Perceive their actions to be a reasonable response in the circumstances, 

27
Q

Duress

A

The accuse can raise this defence if they believe that:
A threat of death or grievous bodily harm will be carried out unless they commit a crime
AND
Committing the crime is the only way to avoid the threatened harm
AND
 the  conduct was a reasonable response to the threat made

28
Q

Sudden or extraordinary emergency

A

The accused can raise this defence if they believe that:
There was a sun or extraordinary emergency involving death or grievous bodily harm
AND
ACTIONS WERE THE ONLY WAY OF DEALING WITH THE SITUATION
AND
Their conduct was a reasonable response to the situation

29
Q

Murder statistics in Vic- Sentenced

A

general downward trend
2016-2021: 97 ppl sentenced, 91%=male, 73%= 25-54
2017-2018= 27, 2021-22=12

30
Q

murder statistics Vic- recorded murder offences

A

remained stable
2018=53, 2022=51
per 100,000=0.8 ,0.9, 0.9, 0.8, 0.8

31
Q

murder offences statistics NT

A

increased
2019=4, 2023=6
per 100,000=1.6, 1.6, 2, 2, 2.4

32
Q

murder sanctions

A

section 3 of crimes act outlines max penalty of life imprisonment (generally a non-parole period)
Vic Plmt= set standard sentence of 25 yrs or 30 yrs if accused= emergency worker or custodial officer - middle of range of seriousness

33
Q

Impact of murder on victims and family and friends

A

Loss of life for victim
long lasting psych harm-fam + friends
victim may have been primary financial provider for fam
media scrutiny can compound negative feelings for fam and friends
rights are afforded to victims fam and friends (treated w respect, courtesy and dignity/ informed throughout process/ opportunity to provide victim impact statement/ can seek financial compensation for loss)

34
Q

impacts of murder on society

A

erodes public confidence in the ability of police/ govt/ crim JS to protect public
members of public may feel vulnerable and cautious about where they go and whom they interact w
can spur community into grassroot activism
will put a strain on police/ emergency services and courts= taxpayer dollars
rising trends may compel govt to pass harsher laws in an effort to reduce crime

35
Q

Impacts of murder on the accused

A

offender will face a term of imprisonment, potentially life
offender will incur legal costs associated with defending themselves in court and then experience loss of income, further complicated if financial provider of family
shame, guilt, regret, remorse
court process=long= accused in state of limbo
limited prospects of rehabilitation as they will socialize w other offenders
upon release, difficulty reintegrating into society due to high levels of stigma

36
Q

elements of culpable driving causing death

A

accused was driving a motor vehicle (AR)
the driving was culpable (MR)
culpable driving caused the death of another person (AR)

37
Q

motor vehicle

A

propelled by a motor and is normally used on a highway
NOT: motorized wheelchair, bicycles, trains, trams

38
Q

driving

A

person has substantial control of the movement and direction of the motor vehicle
MAY be contested IF:
vehicle was not fully operational, no propelled by its own motor force, vehicle was stationary

39
Q

culpable driving

A

P must prove that accused was driving:
recklessly- driver is aware that there is a substantial risk that another person could die or be grievously injured and yet consciously and unjustifiably disregards that risk
Negligently- driver fails to a high degree to observe the standard of care that a reasonable person would have observed in the same situation
Under the influence of drugs/alcohol- must render driver incapable of properly controlling the vehicle

39
Q

Duress (CD)

A

The accuse believe that
A threat of harm will be carried out, unless they commit a crime
 Committing crime is the only way to avoid the threatened harm
The conduct is a reasonable response to the threat made

39
Q

Sudden or extraordinary emergency

A

The accused can raise this defence if they believe that
There was a sudden or extraordinary emergency
The actions were the only way of dealing with the situation
Their conduct was a reasonable response to the situation 

40
Q

Automatism

A

Common law defence
At time of offence, accused had total loss of control over bodily movements and therefore had an involuntary state of mind
(Sleepwalking)
(Concussion/seizure)
(Side effect from proper use of medication)

41
Q

NT stats CD

A

2019-5 2.0
2023-8 3.2

41
Q

culpable driving sanctions

A

s318- max penalty of 20years + 2400 penalty units
offenders over 18 must be sentenced to imprisonment unless they are mentally impaired or assisted the police
standard sentence= 8 years

41
Q

trends in CD Vic

A

general stability w random fluctuations
(73 offenders from 2017-22 (14, 13)
100% of offenders received immediate custodial sentence
males 87%, 25-54 year olds 56%
recorded driving offences causing death Vic
2018-98 1.5
2022-83 1.3

1/2 Legal (6 decks)

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