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legal studies > criminal law > Flashcards

criminal law Flashcards

1
Q

What is a crime?

A

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

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2
Q

Explain Common law and Statute law

A
  • Common law = decisions (precedent) made by judges about issues that arise in court
  • Statute law = legislation/Acts of Parliament) and laws passed my parliament. They take precedence over common law.
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3
Q

Name the act for Victoria related to crimes

A

Crimes Act 1958 (Vic)

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4
Q

Name the act for Commonwealth related to crimes

A

Criminal Code Act 1995 (Cth)

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5
Q

What is a warrant?

A

A court document allowing a person (e.g a police officer) to undertake a certain action such as an arrest.

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6
Q

What are the arrest powers?

A

-Police can arrest without a warrant if they find a person committing a crime of believe it’s necessary to; ensure offender appears in court, preserve public order, prevent further offence and safety of society
-Police can also arrest without a warrant if they have reasonable grounds to believe that a person has committed a serious offence (i.e they have evidence)

> Police can use reasonable force when making an arrest (‘reasonable’ depends on the circumstance)

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7
Q

What are some arrest rights?

A

-The police have no power to detain an individual unless they are under arrest
-An individual must be informed of the reason for the arrest at the time of the arrest
-After the arrest, an individual must be released unconditionally or have their bail determined within a reasonable time

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8
Q

What are some questioning powers?

A

Police can request a person’s name and address if; they have committed or are about to commit any crime, may be able to assist in the investigation of an indictable offence

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9
Q

What are some questioning rights?

A

Before interviewing an arrested person, the police must formally caution them of the following; They have the right to remain silent, They can communicate with a relative or friend or legal practitioner in private, A parent/guardian or independent person must be present if arrested person is under 18 years of age

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10
Q

What’s a charge?

A

A formal but unproven accusation against a person - sufficient evidence is required.

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11
Q

What is a suspect?

A

A person who is thought to have committed a crime and is being investigated

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12
Q

What is an accused?

A

A person who is charged with a crime and must stand trial in court of law to determine guilt

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13
Q

What is an offender?

A

A person who has broken the law and been found guilty

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14
Q

What is a victim?

A

A person who has suffered harm due to actions or omissions of another

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15
Q

What is a witness?

A

A person who has seen or heard information relevant to an alleged crime

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16
Q

What happens between 10-14 years old?

A

Doli Incapax automatically applies which means the child is presumed to be incapable of forming criminal intent. However, if the prosecution can rebut/disprove doli incapax by showing child knew their actions was wrong

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16
Q

What is the age of criminal liability in Victoria and what does it mean?

A

It is 10 years old. This means that if a person is below the age of 10, they cannot be charged with a crime

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17
Q

What happens for 14 years old and above?

A

They can be charged with a crime.

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18
Q

What are the three types of offences?

A

Summary, Indictable, Indictable Offences heard Summarily

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19
Q

Describe a summary offence

A

-It’s a less serious or minor offence
-Found in the Summary Offences Act 1996 (Vic)
-Heard in the Magistrates Court by a Magistrate alone and no jury

e.g minor assualts, unlicensed driving

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20
Q

Describe an indictable offence

A

-Serious offence
-Found in the Crimes Act 1958 (Vic)
-Heard in the County Court or Supreme Court - Trial Division with a judge and jury

e.g rape, murder, manslaughter

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21
Q

Describe Indicatable Offences heard Summarily

A

-Less serious indictable offences that can be heard in the Magistrates Court. This benefits the accused because the sanction will be less severe and process will be faster without a jury.

e.g theft less than $100,000, criminal damage less than $100,000

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22
Q

What type of offence is theft?

A

ALWAYS indictable

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23
Q

What are the two elements of an offence?

A

Actus Reus and Mens Rea

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24
Q

Describe Actus Reus

A

It is a wrongful act. It refers to the physical performance of the criminal act. It is the action taken or omitted by a person
(e.g punching another person)

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25
Q

Describe Mens Rea

A

This refers to a guilty mind. It is a person’s awareness of the fact that their conduct is criminal. This is the criminal intent. Examples include something done intentionally, something not done on purpose but the accused was reckless, something not done on purpose but accused should have foreseen harm that may occur

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26
Q

What is a strict liability offence?

A

They are an exception to following all elemtns of a crime and do not require both actus reus and mens rea to be proven for the accused to be found guilty. They only require the criminal action (actus reus) to be proven. Example is a speeding fine.

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27
Q

What is a principal offender?

A

A person can be considered a principal offender is they were involved in the commission of a crime. They do not have to be physically present at the crime scene to be involved.

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28
Q

Explain who could be a principal offender

A

(C + IDEAA) Someone who commits the crime, intentionally assists, encourages or directs another to commit an indictable offence or makes an agreement with another person to commit an indictable offence together

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29
Q

Explain an accessory

A

AFTER crime has been committed.
1. Knows or believes that a person has committed a serious indictable offence. (5 or more years in jail foe them)
2. and then acts to prevent the arrest, prosecution, conviction or punishment’s of that person.

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30
Q

Name the 5 categories of crimes and examples

A

-Crimes against the person (assualt, murder)
-Crimes against property (theft, burglary)
-Drug offences (drug dealing, drug use)
-Crimes against society (drink driving, speeding)
-Crimes against the state (terrorism, treason)

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31
Q

What does a summons mean?

A

A court document instructing someone to attend a court hearing

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32
Q

What does remand mean?

A

After a person is charged, they are held in custody (prison) while waiting for their trial because they are a danger to society or fight or flight risk.

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33
Q

What is Presumption of Innocence mean?

A

Anyone who has been charged with an offence is deemed to be innocent until proven guilty.

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34
Q

What does a Committal Hearing?

A

Purpose is to determine whether there is enough evidence against a person who has been charged with an indictable offence for the matter to proceed trial, and for a conviction to be handed down

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35
Q

What is the role of the court?

A

-Interpret and apply the law
-Determine the verdict
-Impose a suitable penalty for those who have broken the law

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36
Q

What does an Adversarial System mean?

A

It means there are two opposing sides presenting evidence to the court in order to prove their respective cases. (Prosecution and Defence)

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37
Q

What does statutory interpretation mean?

A

The process used by judges and magistrates in court to interpret and apply the legislation.

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38
Q

What is the burden of proof?

A

The prosecution has the burden of proving the guilt of the accused and must prove in court that the accused did commit the crime.

39
Q

What does the standard of proof?

A

In order to establish the guilt of the accused, the standard to which the prosecution must establish the accused is guilty is beyond reasonable doubt.

40
Q

What are the 8 steps of a criminal trial?

A

Arraignment, Jury Empanelment, Opening Adresses (prosecution and defence), Evidence presented, Closing statements, Verdict, Plea hearing, sentencing

41
Q

What does Arraignment mean?

A

The formal process in which the accused admits his or her identity and pleads to all the charges.

42
Q

What does Jury Empanelment mean?

A

An independent group of people randomly chosen from Victorian Electoral Role. They are empaneled to decide on evidence on the case and determine verdict, All 12 must reach a unanimous decision. Majority verdict = 11 jurors out of 12

43
Q

What does Opening Address mean?

A

At the beginning of the trial, the judge should address the jury to explain how the trial process operates and to assist jury in its function. After judge’s opening remarks, prosecution and defence must present opening addresses.

44
Q

What does evidence presented mean?

A

-Prosecution goes first - witnesses for prosectuion examined and questioned, cross examined by defence and then re-examined by prosecution
-Defence goes next - witnesses for defence examined and questioned, cross examined by prosecution and then re-examined by defence

45
Q

What happens in closing statements?

A

Prosecution = opportunity to make a closing address and summing up evidence
Defence = same opportunity to make closing address and summing up evidence

46
Q

What happens in verdict process?

A

The jury must establish beyond reasonable doubt. If accused is found guilty, then acquitted of all charges. If jury is unable to reach verdict, called a hung jury and possible retrial/

47
Q

What does a plea hearing mean?

A

Judge hearing only where the prosecution and defense will present information they want the judge to take into account on the sentence. This involves victim statements, psychological evidence etc

48
Q

What happens at sentencing?

A

The judge will tell the offender what their statement is and the reasons for it. (e.g past criminal history, minimum/maximum sentences, cooperation with police)

49
Q

What is the role of the jury?

A

To determine question of fact and to apply the law in order to reach a verdict.

50
Q

What are the four categories for potential jurors?

A

Ineligible, Disqualified, Excused, Eligible

51
Q

What does ineligible jurors refer to?

A
  • Those who work in the legal system
    -Those with a physical disability that prevents them performing their duties
    -Those unable to communicate or understand english
52
Q

What does disqualified jurors refer to?

A

-Those convicted of treason or an indictable offence and sentenced to a term of 3 or more years of jail
- Those sentenced to more than 3 months in jail in the past 10 years
-Those sentenced to youth detention

53
Q

What does excused jurors refer to?

A

-Illness or poor health
-Advanced age
-Living over 50km from Melbourne
-If jury service will cause financial problems
-If jury service will affect public

54
Q

What does eligible jurors refer to?

A

-An Australian citizen on electoral roll
-Over the age of 18
-Does not have reason to be excused, disqualified or ineligible

55
Q

What is the definition of a murder?

A

When a person intentionally or recklessly kills another.

56
Q

What are the 6 elements of murder?

A
  1. The victim was a human being
  2. The accused was over the age of discretion
  3. The killing was unlawful
  4. The accused was of sound mind
  5. The victim’s death was caused by the accused (actus reus)
  6. Malice aforethought existed (mens rea)
57
Q

What does the victim was a human being and the victim was over the age of discretion mean?

A
  1. The killing must be of a person who was alive at the time > can’t be a foetus or animal or person who was already dead
  2. The person that caused the death must be above 10 years old
58
Q

What does the killing was unlawful mean?

A

Unlawful means the accused does not have a legal right to kill another person. Killing can be lawful if it’s an execution ordered by the court, enforcement of the law, battle situation or self defense

59
Q

What does the accused was of sound mind mean?

A

They must know what they were doing was wrong and must understand the consequences of their actions. They can’t be of sound mind if they are suffering from conditions such as PTSD, Hallucinations etc

60
Q

What does the victims death must have been caused by the accused mean?

A

The accused must of caused the death of the victim. Must be a direct relationship. The ‘But, For’ test is used to establish causation.

61
Q

What does malice aforethought mean?

A

It refers to the intention to kill. The prosecution must prove that the accused either; intended to kill the victim, intended to inflict serious bodily harm or acted with reckless indifference (knew risks but did action anyway) to whether the act woud kill or do serious bodily harm

62
Q

What is manslaughter?

A

It applies if someone is killed in unlawful circumstances but the accused didn’t intend to kill. It is the unlawful killing of another without malice aforethought. Max penalty is 20 years.

63
Q

What are two defenses to murder?

A

Self-defense and mental impairment

64
Q

Describe self defense as a defense to murder

A

It is a full defense. If a person kills another in self -defense of defense of another person, they are not guilty of the offence. They must prove that is was reasonable and necessary. They must show at the time of incident, they had necessary belief that their life or another was in danger and their response was reasonable

65
Q

Describe mental impairment as a defense to murder

A

The court must be satisfied that at the time of the offence, the accused was so mentally impaired that they did not understand the nature of the act.

66
Q

What is the nature of crime of theft?

A

Crime against the property

67
Q

What is the definition of theft and what section is it?

A

Theft = A person steals if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.
Section 72 Crimes Act 1958 (Vic)

68
Q

What are the three elements of theft?

A
  1. Dishonest
  2. Intention to permanently depriving another of another of property
  3. Appropriation of property belonging to another
69
Q

What does the Element 1 (Dishonesty) mean?

A

Knowing there is no legal right to take the property. A person is only acting honestly if they had a legal right, would have had the owner’s consent in the circumstances or belief that property owner could not have been discovered

70
Q

What does the Element 2 (Appropriation of property belonging to another) mean?

A

-Took the property without the owner’s consent
-Must interfere with, or assume one or more of the rights of the owner e.g taking it, using it, devaluing it, selling it

71
Q

Name 2-3 defenses for theft

A
  1. Duress
  2. Sudden or Extraordinary Emergency
  3. Mental Impairment
72
Q

What does the Element 3 (Intention to permanently deprive) mean?

A

The accused intends to assume the rights of the owner or not give the item back

73
Q

Explain duress as a defense for theft

A

The person had reasonable belief that; at threat of harm exists, the threat would be carried out unless offence was committed and that committing the crime was the only reasonable way to avoid the threatened harm

74
Q

Explain Sudden or Extraordinary Emergency as a defense for threat

A

It is the idea that the actions of the accused were the only reasonable way of dealing with the situation (e.g stealing a fire extinguisher from a nearby store to stop a burning car from exploding around a crowd of innocent people)

75
Q

Explain mental impairment as a defense for theft

A

They may argue that the accused did not know what they were doing was wrong at the time of the offence.

76
Q

Define a criminal sanction

A

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

77
Q

What code are the objectives laid out it?

A

Sentencing Act 1991 (Vic)

78
Q

What are the objectives of criminal sanctions?

A
  1. Just punnishment
  2. Deterrance
  3. Denunciation
  4. Rehabilitation
  5. Protection
79
Q

Explain the objectives of criminal sanctions

A

-Punnishment = to punnish the offender
-Deterrance = deter others in society from committing the same crime (general deterrance) and discourage the offender to doing it again (specific deterrance)
-Denunciation = show them their conduct was inappropriate and court and judge will declare disapproval
-Rehab = help offender reform and change behaviour
-Protection = ensure the safety of the community away from actions of the offender (imprisionment generally)

80
Q

What are the three types of criminal sanctions?

A

Fine, Imprisionment, Community Corrections Order

81
Q

Explain a fine in relation to criminal sanction

A

A monetary penalty imposed on offender by the courts and generally paid in penalty units

82
Q

Explain a community corrections order in relation to criminal sanction

A

A non-custodial sanction which allows offender to be in society but must comply with certain terms and conditions

83
Q

Explain imprisonment in relation to criminal sanction

A

Most serious where an offender’s liberty is taken away.

84
Q

Explain what can happen if an offender has been convicted of multiple charges and received multiple sentences

A

They can serve the sentences;
-Concurrently - at same time
or
-Cumulatively - one after the other

85
Q

Explain/Define Parole

A

When an offender is granted early release from prison after serving a non-parole period.

86
Q

What are the three arms of government responsible in sentencing and explain their role

A

-Parliament = makes legislation that defines what an offence is and the maximum penalty
-Courts = interpret and apply laws to hand down a sentence to the convicted offender
-Executive = runs correctional facilities such as prisons and youth detention centres etc

87
Q

What is the sentencing act for Victoria called?

A

Sentencing Act 1991 (VIC)

88
Q

What is the sentencing act for a Commonwealth Offence called?

A

Crimes Act 1914 (Cth)

89
Q

Defines what aggravating factor means

A

Factors which increase the seriousness of the offence or the offender’s culpability

90
Q

Define what mitigating factor means

A

Factors which reduce the seriousness of the offence or the offender’s culpability

91
Q

Provide some examples of aggravating factors

A

-Serious offence
-Past criminal history
-Use of weapons or violence
-Malicious intent

92
Q

Provide some examples of mitigating factors

A

-Less serious offence
-Entering an early guilty plea
-First offence
-Showing remorse
-Age of offender

93
Q

What are the three rules for causation?

A

-Acts of nature can be an intervening act if they are unforeseeable (e.g lightning strike)
-Medical negligence can be an intervening act if it is overwhelmingly bad
-Eggshell skull rule = can’t blame the death on a victim’s allergies, beliefs, disabilities

94
Q

Explain recklessness in regard to murder

A

It means the person acted with reckless indifference as to whether their actions would kill the victim or cause serious bodily harm. There is still intention because the accused knew that death or serious injury was possible

95
Q

Explain recklessness in regard to manslaughter

A

It means performing an reckless act that was so dangerous that they should have foreseen the likelihood of serious injury or death. There was no intention because the accused did not know death of serious injury would happen as a result but their act was objectively dangerous (common sense) so they should have foreseen the likelihood of death.

legal studies (4 decks)

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