criminal law Flashcards
purpose of criminal law
- protect individuals
- protect society
- protect property
- protect justice
Purpose of criminal law:protect individuals
from physical, psychological and economic harm eg criminalising actions such as assault
Purpose of criminal law: protect society
by defining prohibited behaviours and outlining sanctions to deter people from illegal conduct eg criminalising drug use
Purpose of criminal law: protect property
protect property from harm
eg criminalising theft of personal possessions
Purpose of criminal law: protect justice
by providing proper processes to enforce the law and penalise offenders
eg prevent victims from taking justice into own hands
What is a crime?
a crime is
- an act of omission that violates an existing law…
- causes harm to an individual or society…
- is punishable by law.
Actus reus
- the “guilty act”, the physical element of the crime
- the prosecution must prove that the accused physically committed the wrongful action
Mens rea
- the “guilty mind”, the mental element of the crime
- the prosecution must prove the accused knowingly, intentionally, negligently or recklessly committed the wrongful action [ or inaction]
presumption of innocence definition
Refers to the right for all accused persons to be considered and treated as innocent until the charge has been proven by the prosecution beyond reasonable doubt
criminal burden and standard of proof
burden of proof - prosecution
standard of proof - beyond reasonable doubt
examples of presumption of innocence being upheld
+ any individual who has been arrested and charged has the right to apply for bail
+any prior convictions cant be revealed in court until the sentencing process
examples of principals of innocence being limited
sometimes presumption must be limited to protect the community from individuals who has commited a serious and violent offence
Strict liability offences
+ do not require the mens rea element or a crime to be satisfied to find accused guilty
+ only need to prove actus reus
+ for eg speeding, not wearing seatbelt, serving underage alcohol and liscensed venue
Honest and reasonable mistake
+ defence for strict liability offences
+ where the accused honestly believed certain facts existed at the time of the offence, which if true, would mean not commiting an offence.
Age of criminal responsibility
under 10 = cant be charged with crime
10-13 = the doctrine of doli incapax applies [considered incapable of forming mens rea / intent
14+ = can be charged
classifying crimes according to nature
A= crimes against person eg homicide, robbery
B = crimes against property eg arson theft
C = drug offences eg trafficking, using
D= public order and security offences eg terrorism
E = justice procedure offences eg perjury [lying in court]
F = other offences eg driving offences
other types of offences
cyber crime
hate crime
organised crime - planned or ongoing by syndicates or gangs
juvenille crime - 10-18
white collar crime - offence by people who work in government, business, coporate
Summary offences
+ minor or less serious crimes
+ heard in mag court
+ many contained in summary offences act 166 [vic]
+ heard by mag alone [no jury]
+ enforcement can sometimes issue fines or warnings instead of court
+ eg disorderly conduct, minor assualt
Indictable offences
+ more serious criminal offences
+ heard in county or sumpreme court
+ heard by judge and jury if accused pleads not guilty
+ listed in crimes act 1958 [vic] unless stated otherwise
+ eg murder, culpable driving causing death
Indictable offences heard summarily
+ the benefits and requirments
+ criminal procedure act 2009 [vic] has less serious indictable offences that can be heard in mag court
+ this includes theft less than $100,000
benefits
faster and cheaper + max term is two years for single offence and 5 years for multiple offences
requirments
cant be punishable of terms exceeding 10 years
accused must consent
court must determine it appropriate
principal offender
+ the person who commits the offence by carrying out the actus reus with the requisite mens rea
+ also can be considered PO if were involved [ dont have to be physically present]
+ any principal offender can be subject to max. penalty of offence
what can involve you and make you a principal offender
+ intentionally assisting, encouraging or directing another to commit an indictable offence
+ making an agreement with another person to commit an indictable offence together
Accessory
any person who…
1. knows or believes that a person has committed a serious indictable offence [ punishable by 5+ years]
2. and then acts to prevent the arrest, prosecution, conviction or punishment of that person
an accessory can be found guilty of an offence regardless of whether the principal offender is found guilty
definition of murder
the unlawful and intentional killing of a human being by a person who acted voluntarily without any lawful justification
death of a human
the victim must be a living person, not an object, animal or unborn child
voluntary act
The accused must have had conscious and deliberate control of their bodily movements when committing the acts that killed the victim.
involuntarily example = sleep walking, unintentionally falling over
causation
The prosecution must prove a direct, unbroken causal link between the accused actions and the death of the victim
accused act does not have to be only cause but must
1. be a substantial and operating cause of death [significant contributer]
2. have made it a natural consequence for the victim to seek escape [ well founded apprehension of physical harm]
intervening acts
there may be an intervening act that breaks chain of causation
- an act of nature such as tidal wave or strike of lightning, must be spontaneous, irregular, unpredictable
- medical treatment so palpably or overwhelmingly bad to be considered intervening
Elements of murder
- the accused was a human being [actus reus]
- the accused act was voluntary [actus reus]
- the accused caused the death of the victim [ actus reus]
- the accussed acted with intention or recklessness [malice aforethought/mens rea]
- the killing was unlawful [ no valid defences]
malice aforethought
and how it can be esthablished
when the accussed has the desire to harm someone and has planned it previously in their mind
can be esthablished if accused
1. intended to kill the victim
2. intended to cause grievous bodily harm
subjective mindset of malice aforethought
did they act with a conscious desire to bring about death or GBH?
did they act with knowledge that the death or GBH was a certain result?
Reckless murder
the accused knows that their act will probably kill or likely kil or grievously injure someone but they go ahead and commit with reckless indifference
subjective mindset of reckless murder
did they realise the death of the GBH was a probable consequence?
did the accused expect death or GBH to be a likely result?
self defence [how it can be raised]
can be raised if
1. they believed their actions were necessary to protect themselves or others from death or GBH
2. perceived there actions to be a reasonable response in the circumstances
self defence [how it is decided]
- put yourself in the shoes of the accused and examine situation from there perspective
fraility, weakness, diff in body size and age, use of weapons, and history of violence are all key factors - prove the accused believed it was honestly necessary to defend themsleves
- based on the sit and how the accused percieved it was their response reasonable
duress
can be raised if
1. a threat of death of grievous bodily harm will be carried out unless they commit a crime
2. only way to escape threatened harm
3. the conduct was reasonable response to threat
cannot if they were voluntarily associated eg apart of a gang
sudden or extraordinary
can be raised if
1. there was a sudden or extraordinary emergency involving death or grievous bodily harm
2. their actions were the only way to deal with the situation
3. there conduct was a reasonable response/proportionate
sanction for murder
crimes act 1958 vic outlines the max penalty of life imprisonment, however court sets non parole period
vic parliament has set standard sentence of 25 years [or 30 for emergency or custodial worker]
the standard should be imposed for middle of the range murder offences
trends for murder in vic
general downward trend
sentenced to murder decreased from 27 in 2017 to 12 in 2022
number of recorded murder offences per 100,000 is stable dropping from 0.9 in 2019/20 to 0.8 in 2022
trends for murder in Nt
number of recorded murder offences have increased from 1.6 per 100,000 in 2019 to 2.4 in 2023
impacts of murder on victim + family and friends
loss of life for victim
long lasting psychological harm for the victims family and friends eg shock, grief, anger, emotional trauma
victim could of been financial provider
media scrutiny
impacts of murder in society
erodes public confidence in the ability of police government and justice system
public may feel vunrable and cautious
infuence activisim
impacts of murder on the accused
term of imprisonment potentially for life
incur costs from defending themselves and loss of income
shame, remorse, guilt
limited prospects of rehab
hard to get back into society from stigmas
fairness
all people can participate in the justice system and its processes should be impartial and open
equality
all people engaging in the justice system should be treated in the same way, if the same treatment causes disparity of disadvantage adequate measures should be implicated to allow all to engage in the system without disparity of disadvantage
access
all people should be able to engage with the justice system and its processes on an informed basis
engagement - utilise, interact with
informed - awareness of processes and procedures, awareness of rights
elements of culpable driving causing death
- the accused was driving a motor vehicle [AR]
- the driving was culpable [MR]
- the culpable driving caused the death of the person [AR]
motor vehicle
is a vehicle that is propelled by a motor and is normally used on a highway
includes = cars, buses, trucks, motorbikes
doesnt include = trains, trams, motorised wheelchairs or bicycles
driving
driving means the person has substantial control of the movement and direction of the motor vehicle
no clear definition of driving but issue may be contested if
the vehicle was not fully operational
the vehicle was not propelled by its own motor force
the vehicle was stationary
culpable driving [what pros. must prove]
the accused had to be driving in one of the following ways
1. recklessly - driver was aware there was a substantial risk that another could die of be injured yet disregards risk
2. negligently - driver fails to a high degree to observe the standard of care that a reasonable person would of observed
3. under influence of drugs and alcohol - consumption made them rendered incapable of properly controlling the vechile
culpable driving caused death of person
if driver was driving in a reckless or negligent manner
which needs to be proven to be a substantial and operating cause of death
if affected by alcohol or drugs and were incapable of controlling vehicle the prosecution needs to prove there driving was a substantial and operating cause of death
sanctions for culpable driving causing death
maximum penalty is 20 years, with a max fine of $460,000
offenders over 18 must be sentenced to imprisonment
when setting non parole court must consider the standard sentence of 8 yrs
