Criminal Law Flashcards
What is a crime?
An act or omission that violates an existing law, causes harm to an individual/society as a whole and is punishable by law.
What pieces of legislation outline crimes?
- Crimes Act 1958 (Vic)
- Summary Offences Act 1966 (Vic)
What happens if a crime was committed in the past and no legislation existed at the time?
The Charter of Human Rights and Responsibilities asserts that criminal offences cannot be retrospective and cannot act backwards to find an offender guilty of crimes that were not criminal when the act occurred.
What are the purposes of the Criminal Justice System?
- Set minimum standards for behaviour
- Protection of society
- Deterrence of crime
- Protect justice and the rule of law
Outline the aim of: Set minimum standards for behaviour
To regulate how each person in society should act and establish sanctions if they do not act in a certain way.
Outline the aim of: Protection of society
Reduce danger and chaos in society; ensure individuals are safe and protected from harm.
Can happen before or after commission of a crime - Proactive v Reactive
Outline the aim of: Deterrence of crime
To discourage an offender or individuals from reoffending or committing similar crimes through imposing a sanction.
Reactive - offender
Proactive - possible offenders
Outline the aim of:
Protect justice and the rule of law
To provide justice for victims of a crime. To uphold fairness, those who commit crimes must face consequences. Linked to rule of law which ensures law is applied to everyone no matter personal characteristics.
What are 6 classes of crimes?
- Crimes against person
- Crimes against property
- Cybercrime
- Hate Crime
- Organised Crime
- White-Collar Crime
Distinguish between the classification of a crime and the categories of a crime.
Classification - what the wrongful act was aimed at, the type of harm inflicted and how it was committed.
Categories - magnitude of likely harm caused (severity).
Outline crimes against the person.
Acts that either cause harm to an individual or pose a threat of harm to them.
Even if threat doesn’t eventuate.
Outline crimes against property
Criminal acts that employ force or deceit to acquire, damage or demolish property.
Outline cybercrime.
Criminal activities aimed at computer systems.
Outline hate crime.
Acts of violence that stem from prejudice against a person’s protected characteristics.
Outline organised crime.
Criminal activity that is carried out in a systematic and premediated matter by organised groups.
Outline white-collar crime.
Non-violent crimes that are driven by financial motives.
Define the accused.
The individual/s who are accused of allegedly committing the crime. One guilty, referred to as the offender.
Define the prosecution.
Lawyers that work within the Office of Public Prosecution - a legal branch of govt. that is responsible for bringing offenders to justice. They instigate and present the criminal case in court with the aim of proving the accused is guilty.
Define the presumption of innocence + legislation it is covered by.
A right for all accused persons to be presumed innocent until they are proven guilty beyond reasonable doubt/plead guilty.
S.25 - Charter of Rights and Responsibilities Act 2006 (Vic)
Define reasonable belief and how it upholds the PoI.
Police must have reasonable belief that a person has committed a crime before arrests are made > only pursue matter if adequate evidence of wrongdoing
Define bail and how it upholds the PoI.
The conditional release of the accused into society whilst they await their trial > allows accused to remain relatively free whereas if they were to be held in remand, they will have been punished for an offence they have not proven to have committed so not unduly punished.
How does ‘prior convictions cannot be revealed’ uphold the PoI?
If accused has prior convictions, these cannot be revealed to the jury in trial > ensures that they do not form bias against the accused and only reach a decision based on the facts of the case.
Define committals and how they uphold the PoI.
A series of hearings that occur before the Magistrate to determine whether the prosecution has sufficient evidence to proceed to trial > only pursue matter if adequate evidence of wrongdoing
Define burden of proof.
The responsibility or onus of a party to prove the facts of the case.
Define standard of proof.
The level/degree or the extent to which the case must be proven. Relies on the strength of the evidence being presented in court to prove guilt of the accused.
In criminal law - beyond a reasonable doubt.
What are three rights of the accused?
- right to silence
- right to trial without unreasonable delay
- right to trial by jury
Outline what the right to silence is.
Refers to an entitlement whereby the accused does not have to say or do anything when being charged to avoid self-incrimination.
What legislation underpins the right to silence?
Evidence Act 2008 (Vic) - negative inferences should not be drawn should an accused refuse to answer questions.
Jury Direction Act 2015 (Vic) - A’s lawyer can request for judge to direct jury that ‘selective silence’ is not a sign of guilt.
Why is the right to silence important?
- Reinforces the burden of proof on the OPP: not the responsibility of the accused to assist the OPP
- Allows them to refrain from making incriminating statements
- Reduce the power imbalance between P/A as P can’t use their powerful position to coerce the accused into confessing
What is the right to be tried without unreasonable delay and what legislation underpins it?
A person charged with a criminal offence is entitled to a guarantee that they will be tried without unreasonable delay.
S.21, S.25 of the Charter of HR+R Act 2006 (Vic)
Why is the right to be tried without unreasonable delay important?
- Witness memories may fade > impacts the validity of the trial (unreliable evidence)
- Upcoming trial + unknown outcome can cause stress for A + V
- If trial garnered media attention, delays make it difficult for unbiased jury members to be found
- Long delays can increase legal costs
What is the right to trial by jury?
Refers to the entitlement that, should an accused plead not guilty to an indictable offence - their guilt must be determined by a panel of 12 peers rather than a judge.
What legislation underpins the right to trial by jury?
Juries Act 200 (Vic) - requires a jury of 12
Criminal Procedures Act 2009 (Vic) - contains directions for jury empanelment
S.80 of Constitution - if charged I.O. for a FEDERAL OFFENCE, entitled to a jury
Why is the right to trial by jury important?
- Provides impartial and unbiased decision maker
- Allows for use of plain English > easier to understand for all parties
- Unanimous verdict required > prevents wrongful conviction
- Represents a cross-section of the community (peers) > diverse perspectives
Define principal offender.
The individual who physically carries out the offence and is directly involved with the commission of a crime.
Define accessory and what kind of penalty they get.
A person whose actions help the principal offender of a serious indictable offence avoid apprehension, prosecution or conviction. They must:
- know or believe the PO has committed a serious indictable offense
- act in a way that helps the principal offender avoid apprehension, prosecution or conviction
Cannot exceed 5 years imprisonment or more than 1/2 max. penalty of PO, UNLESS murder = up to 20 years
Define actus reus.
(Wrongful act) - Refers to the physical element of a crime and refers to the wrongful acts or omissions the offender has undertaken.
Define mens rea.
(Guilty mind) - Refers to the mental element of a crime: the offender’s awareness of their criminal behaviour and its potential consequences.
Prosecution must prove:
1. Accused had the intention of committing
2. Were in a reckless/negligent state of mind
Define strict liability offences.
A type of offence that does not require the mens rea element of the crime to be satisfied.
e.g. Speeding
Not wearing a seatbelt
PT fare evasion
Why are strict liability offences important?
- Protect society where regardless of the offender’s intent, their conduct is dangerous and must be discouraged.
- Makes it more efficient to find individuals guilty + punished > hopefully deterred quickly.
Define murder
The unlawful and intentional killing of a human being by a person who acted voluntarily and without any lawful justification.
State the elements of murder.
- The victim was a human being
- The victim died
- The accused is a person over the age of discretion
- The accused’s act was voluntary
- The accused’s act caused the death of the victim
- The accused acted with malice aforethought
- The killing was unlawful
Define death
Irreversible cessation of circulation of blood in the body or the irreversible cessation of all function of the brain.
What is the age of discretion?
10 years and above
Define voluntary act
The accused must have conscious and deliberate control of their bodily movements when committing the acts that killed the victim
What is causation
The accused’s actions must have contributed directly and substantially to the victim’s death/
How do you prove causation?
- There was a direct, unbroken link between the accused’s actions and the death of the victim
- ‘But for’ test - determine the extent to which the accused’s actions caused the death wehn there are intervening acts
- Natural consequence test - When conduct of accused causes apprehension of physical harm, making it a natural consequence that the victim would try to escape. IF victim if injured while escaping, injury is caused by accused’s conduct.
What can break the chain of causation?
An intervening act - no longer direct link between accused’s actions and death of victim.
- Spontaneous, irregular or unpredictable act of nature
- Medical treatment that is palpably or overwhelmingly bad
Define malice aforethought.
The premediated desire to harm someone
What kind of malice aforethought creates intentional murder?
Where it is established by showing the accused had specific intention to kill or cause grievous bodily harm.
What kind of malice aforethought creates reckless murder?
Where it is established by showing the accused knew their actions would probably or likely kill/cause GBH to the victim AND they did it anyway with reckless indifference.
What test is used to prove malice aforethought?
The subjective test - Evaluation of the mindset of the accused to assess mens rea - examines evidence of their behaviour.
> Given the accused’s age, knowledge about the circumstances and their decision to [ ],
- they acted w. conscious + certain desire for death/GBH
- they realised + expected death/GBH probable result
This may convince the jury that the subjective test for _______ murder is satisfied.
Define manslaughter.
The unlawful killing of another person when deprived the power of self-control by provocation, or under circumstances amounting to diminished responsibility, or without the intent to kill.
What is voluntary manslaughter?
Where the accused intended to kill but there is a mitigating factor that lessens the culpability for the crime, making it less heinous.
What is involuntary manslaughter?
The accused exhibited negligent behaviour or unlawfully dangerous behaviour which led to the death of another person which lacked intentionality, thereby reducing their culpability.
What is one-punch manslaughter?
When an accused intentionally strikes the victim in the head or neck, thereby directly causing the victim’s death or causing a subsequent injury that leads to their death.
Impacts of homicide on victims and families (5).
Physical: Family may experience grief, insomnia or cardiac issues.
Psychological: Family may experience post-traumatic stress, depression or severe stress
Economic: Where victim is primary financial provider, family may suffer bc. of loss of main income earner.
Social: High stress can cause discomfort, strain and distancing in relationships due to inadequate support
Spiritual: Loss of trust in criminal justice system - May not feel protected or perception that sanction given was not adequate or proportionate to losses > lobbying for law reform
Impacts of homicide on communities (4).
Economic: Communities with high rates can have unsafe reputation > loss of income for businesses > increased workload on law enforcement (funded by tax-payers) > house prices decrease
Social: Communities with high rates can live in fear, constant worry over their safety or develop hostility towards specific groups.
Political: Continuing instances can prompt the govt. to pass harsher laws / overburdens courts as offenders must be tried and punished
Mental: Members could be witnesses to homicides > post-traumatic stress, anxiety/mental health challenges.
Impacts of homicide on the offender (4).
Physical: Sustained minor or sever injuries in commission of crime
Psychological: Feelings of guilt, regret, shame and humiliation
Economic: Loss of earnings if unable to work / costs associated with defending themselves
Social: Not able to regularly see family and support networks
