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year 12 legal studies > criminal law 1a (headstart) > Flashcards

criminal law 1a (headstart) Flashcards

1
Q

lesson one

define parliament

A
  • a formal assembly of representatives of the ppl that is elected by the ppl & gather to make laws
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2
Q

lesson one

define government

A
  • the ruling authority w/ power to govern.
  • formed by the political party or parties (coalition) that holds the majority in the lower house in each parliament. The members of parliament who belong to this political party form the government.
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3
Q

lesson one

define crossbenchers

A
  • members of parl. who are not members of either govt. or opp.
  • e.g. indep. members or members of minor parties.
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4
Q

lesson one

define opposition

A
  • the political party that holds the second largest no. of seats (after the govt.) in the lower house.
  • questions the govt. about policy matters & is responsible for holding the govt. to account.
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5
Q

lesson one

define statute

A
  • a law made by parliament
  • a bill that has passed through parliament & has recieved royal assent
  • also known as legislation / Act of Parliament
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6
Q

lesson one

define royal assent

A
  • the formal signing & approval of a bill by the Governor General (at the cth lvl) or the governor (at the state lvl)
  • after which the bill becomes an Act of Parliament (statute)
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7
Q

lesson one

define jurisdiction

A
  • the lawful authority / power of a court, tribunal or other dispute resolution body to decide legal cases
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8
Q

lesson one

define common law

A
  • law made by judges through decisions made in cases (int of leg / test cases)
  • also known as case law / judge-made law
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9
Q

lesson one

define precedent

A
  • a principle est. in a legal case that should be followed by courts in later cases where the material facts are similar
  • either binding or persuasive
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10
Q

lesson two

define summary offences

A
  • minor crimes that are committed by the accused
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11
Q

lesson two

in what legislation are summary offences listed within?

A
  • Summary Offences Act 1966 (Vic)
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12
Q

lesson two

where are summary offences heard?

A
  • the final hearing in which both parties will put their case before a magistrate is heard in the Mag. Court
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13
Q

lesson two

what are examples of summary offences?

A
  • drink driving
  • minor assaults
  • minor drug possession
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14
Q

lesson two

are there pre-trial procedures for sumary offences?

A
  • there are no committal hearings for summary offences, and nearly all accused are granted bail for summary offences
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15
Q

lesson two

what are common sanctions handed down for summary offences?

A
  • adjourned undertaking - w/ or w/o a recorded conviction
  • fines
  • CCO
  • imprisonment - for max. of 5 yrs
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16
Q

lesson two

define indictable offences

A
  • serious crimes
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17
Q

lesson two

in general what legistlation are indictable offences found within?

A
  • Crime Act 1958 (Vic)
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18
Q

lesson two

what are examples of indictable offences?

A
  • murder
  • robbery
  • sexual offences
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19
Q

lesson two

where are indictable offences heard?

A
  • heard in the County or SC as trials
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20
Q

lesson two

is a jury present for summary offences?

A
  • there are no entitlement for a jury in the mag. court
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21
Q

lesson two

is a jury present for indictable offences?

A

a jury is present, used to determine guilt if the accused pleads ‘not guilty’

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22
Q

lesson two

what are indictable offences heard and determined summarily?

A
  • these are indictable offences (serious) but, they can be heard in the mag. court as if they were summary offences
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23
Q

lesson two

how is determined whether an indictable offence can be heard summarily?

A
  • the statute
  • the courts agree the offence is appropriate to be heard summarily
  • the accused must also agree
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24
Q

lesson two

define committal

A
  • referring to the whole committal proceedings is a pre-trial procedure that occurs before indictable offences are heard at trial in the county or sup. court.
  • responsibility of the prosecution to demonstarte to the mag. that there is ‘prima facie’
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25
Q

lesson two

what does prima facie mean?

A
  • at 1st glance
  • sufficient evidence to support a conviction at trial
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26
Q

lesson two

what is the purpose of committal hearings?

A
  • ensure that only strong cases w/ sufficient evidence proceed to trial
  • allows the accused the opp. to enter a plea after learning about the pros. case against them
  • ensure a fair trial by making sure that prosecution discloses their case to the accused
  • provides the accused the opp. to test the pros. case through cross-examining witnesses
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27
Q

lesson two

define prosecute

A
  • to conduct legal proceedings against a person
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28
Q

lesson two

define prosecution

A
  • term used to describe the party that presents eveidence in court on behalf of the state (Vic) or the cth against a person accused of committing the crime
  • director of pub. prosecutions (DPP) & crown prosecutors proseucte serious crimes on behalf of the state in the county & sup. court
  • minor off = vic police officers usually prosecute crimes in the mag. court
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29
Q

lesson two

define accused

A
  • this is the individual who has been charged w/ a crime
  • can be more than one in the case
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30
Q

leson three

what is the burden of proof?

A
  • a requirement w/n the legal system that places responsibility on one party to prove the facts of a case
  • crim law = this onus (responsibility) rests upon the prosecution (that is the pros. must prove the accused is guilty)
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31
Q

lesson three

when is the burden of proof reversed?

A
  • if the accused defence for their actions is mental impariment
  • possession of an illegal substance on their property & cannot demonstrate to the court on the contrary
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32
Q

lesson three

what is the standard of proof in criminal law?

A
  • the level of proof / certainty or str. of evidence required to prove the case
  • standard = beyond a reasonable doubt
  • the prosecution must prove beyond a reasonable doubt that the accused is guilty
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33
Q

lesson three

what does beyond a reasonable doubt mean?

A
  • the standard of proof in criminal cases. this does not mean that no doubt can exist at all, but rather, that no reasonable doubt is possible by the evidence presented or no other logical or reasonable conclusion can be drawn
  • cc or sc = jury must be satisfied of guilt beyond a reasonable doubt
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34
Q

lesson three

define the presumption of innocence

A
  • key principle w/n criminal justice system wherby a person who has been accused of a crime must be presumed innocent until proven otherwise
  • this is why a person is referred to as an ‘accused’ before they are proven guilty
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35
Q

lesson three

what legistlation is the presumption of innocence found within?

A
  • in Vic, this right can be found w/n the Charter of Rights and Responsibilities Act 2006 (Vic)
  • prior to this it was well est. common law right
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36
Q

lesson three

what are several ways in which the criminal system safeguards the presumption of innocence?

A
  • accused can apply for bail
  • indict off = prosec. must go through committals to demon. there is suff evid to proceed to trial
  • prior convictions cannot be revealed until sentencing (J = X prej)
  • police must reasonably believe person committed crime befroe arresting them
  • off. has right to appeal a wrongful conviction
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37
Q

lesson three

when may the accused not be granted bail?

A
  • mag convinced that they will abscond, be a danger to the community or themselves
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38
Q

lesson four

what are the three rights available to an accused?

A
  • the right to be tried w/o unreasonable delay
  • the right to silence
  • the right to trial by jury
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39
Q

lesson four

how are the rights of the accused safeguarded?

A
  • in Vic these rights are protected by statute, specifically the Charter of Human Rights and Responsibilities Act 2006 (Vic), also known as the Human Rights Charter
40
Q

lesson four

what are the rights of the accused based upon?

A
  • the rights located w/n this Charter are based upon those outlined in the International Covenant of Civil and Political Rights (ICCPR 1966) - a treaty in which Aust has signed
41
Q

lesson four

define the right to be tried w/o unreasonable delay

A
  • the Charter states that a person charged w/ a criminal offence is entitled to a guarantee that they will be tried w/o unreasonable delay (sections 21 & 25)
  • this right is w/o discrim which means every accused person is entitled to this provision
42
Q

lesson four

what does the right to be tried w/o unreasonable delay mean?

A
  • the accused is entitled to have their charges heard in a timely manner
  • there may be ‘natural’ delays which occur but must X be unreasonable
  • the accused must be brought to trial as quickly as possible
43
Q

lesson four

is what constitutes reasonable defined?

A
  • X defined
  • t/f flexible & up to interp
44
Q

lesson four

what is the time frame for sexual and non-sexual offences to be tried w/o unreasonable delay?

A
  • sexual off: 3 mths for a comm mention
  • non-sexual off: 6 mths for a comm mention
45
Q

lesson four

what are examples of reasonable delays?

A
  • lack of facilities
  • medical procedures / emergencies
  • extent of evidence (forensic –> timely)
  • interviewing witnesses
  • covid
  • jury mem X declare association or completes own external research
46
Q

lesson four

define the right to silence

A
  • the term ‘right to silence’ refers to an entitlement whereby the accused does X have to say or do anything when being charged w/ an offence
47
Q

lesson four

in what legislation is the right to silence incorporated in?

A
  • the Evidence Act 2008
  • neg interences X be drawn should an accused refuse to answer questions
48
Q

lesson four

how does common law protect the right to silence?

A
  • the accused has the right to remain silent
  • X adverse / neg conclusions can be drawn from the fact that the accused has not answeres any questions –> p.o.i
  • when an accused has chosen to answer some questions but X others ‘selective silence’ this cannot conclude guilt
49
Q

lesson four

what protections ensure that the right to silence is upheld?

A
  • the accused can refuse to answer any questions & does X have togive info as part of an invest. of a crime
  • the accused cannot be forced to give evidence in a criminal trial or answer any questions
  • the accused does X have to file a defence or calla particular witness
50
Q

lesson four

what are the exceptions to the right of silence?

A
  • if police believes that a person has committed or about to commit a crime, or may be able to assist in an investigation of an indictable offence, the person must give their name and address if asked to do so
51
Q

lesson four

define the right to trial by jury

A
  • refers to the entitlement that, should an accused plead not guilty to an indictable offence, their guilt must be determined by a group of 12 ‘peers’ rather than a judge alone
52
Q

lesson four

what is the victorian legislation that contains the right to trial by jury?

A
  • the Juries Act 200 (Vic) - requires there to be a jury of 12
  • the Criminal Procedure Act 2009 (Vic) contains provisions for jury empanlment & jury directions
53
Q

lesson four

what is the commonwealth legislation for the right to the trial by jury?

A
  • sect 80 of the aust const guarantees that if a person were to be charged w/ an indictable cth offence, they are entitled to a jury.
  • h/w this is only available for cth off. & most criminal off. are legislated by states’ statutes & the cth can determined which off. are considered indict
54
Q

lesson five

who is a victim?

A
  • a person who has suffered directly or indirectly as a result of a crime
55
Q

lesson five

in victoria what is the legislation for victims?

A
  • the Victim’s Charter Act 2006 (Vic)
  • outlines key principles in relation to victims
  • sets down principles such as respectful treatment of victims, respect for victims privacy & the right to be informed about the proceedings
56
Q

lesson five

what does the Victim’s Charter Act 2006 (Vic) do?

A
  • recognise that victims should be offered certain information during the investigation
  • reduce the likelihood of 2nd victimisation which may be experienced through their interaction w/ the criminal justice system
  • identifies the primary victim
  • the vulnerabilites stemming from victims that are of young age or w/ certain disabilities
57
Q

lesson five

what are the three rights available to a victim?

A
  • the right to give evidence using alternative arrangements
  • the right to be informed about the proceeding
  • the right to be informed of the likely release date of the offender
    –> must balance w/ the rights of the accused
58
Q

lesson five

define the right to give evidence using alternative arrangements

A
  • this right refers to a situation whereby a victim is also a witness to the crime & may be required to testify in court. when this occurs, victims are entitled the certain adjustments to accommodate & lesson further trauma / stress
59
Q

lesson five

what is the legislation that incorporates the right to give evidence using alternative arrangements?

A
  • Criminal Procedure Act 2009 (Vic)
60
Q

lesson five

what offences must the victim be of to be eligible to testify as a vulnerable witness?

A
  • a sexual offence
  • a family violence offence
  • an offence of obscene, indecent lang or threatening behaviour
  • an offence of sexual exposure
61
Q

lesson five

when is a person not eligible to testify as a vulnerable witness?

A
  • X balanced to rights of the accuseds rights
  • did not endure trauma / stress ect.
  • not a victim of the offence
  • ## not vulnerable e.g age
62
Q

lesson five

define the right to be informed about proceedings

A
  • the Victim’s Charter recognises that victims require additional support due to being adversely affected by the crime.
    –> victims should be entitled to be informed about support services, compensation & details of how the leg system will carry out justice
63
Q

lesson five

during the investigation the Charter requires victims to be informed during intervals regarding what?

A
  • details of the offence that the accused has been charged w/
  • the date, time & place of the hearing of charges
  • the outcome of criminal proceedings incl. sentencing imposed
  • why lesser or fewer charges have been laid
  • details of any appeals
  • informed that they are entitled to attend any court hearing
64
Q

lesson five

what are the exceptions to the right to be informed about proceedings?

A
  • victims are not entitled to information that may put the investigation at risk or if they choose not to receive that information
65
Q

lesson five

define the right to be informed about the release date of the accused

A
  • a person who is a victim of a criminal act of violence may apply to be included in the victims register - whereby they recieve certain information incl. notification of the release of the prisoner on parole at least 14 days before the release
  • other rights to be informed about also incl. if the offender excapes from prison and the right to make a submission if the offender is applying for parole
66
Q

lesson five

what are the nine offences to which victims have the right to be informed about the release date of the accused?

A
  • rape & other sexual offences
  • aggravated burglary
  • kidnapping
  • stalking
  • child stealing
  • offences involving assault or injury punishable by imprisonment
  • culpable driving causing death
  • dangerous driving causing death or serious injury
  • failing to stop after a motor vehicle accident causing death or serious injury
67
Q

lesson seven

define Justice

A
  • the maintenance of what is just or right by the exercise of authority over power
  • givinf of due desserts
68
Q

lesson seven

how to we measure justice?

A
  • by determining whether the criminal justice system has been fair, equitable (equal) and accessible (access)
69
Q

lesson seven

define fairness

A
  • all ppl can part. in the justice system and its processes should be impartial and open
70
Q

lesson seven

what is fairness designed to ensure?

A
  • innocent ppl are X found guilty of a crime they did X commit
  • public confidence is maintained
71
Q

lesson seven

what are the elements of the principle of fairness?

A
  • impartial processes
  • open processes
  • participation
72
Q

lesson seven

what are impartial processes?

A
  • personnel / ppl w/n the just. syst.
  • courts and personnel - incl. judges, mag, & jury memb. = indep. & impartial.
73
Q

lesson seven

what is does it mean for judges, magistrates & jury members to be indep. and impartial?

A
  • they should X show bias towards either party & the case must be decided on facts & law - X prejudices
74
Q

lesson seven

  • what are examples of impartial processes?
A
  • the judge / mag & jury must acknowledge any association w/ either parties & remove themselves from the case
  • jury memb. are empanelled from the community at random to ensure limited bias
  • both sides have the opp. to ‘challenge’ a jury memb if there is percieved bias
75
Q

lesson seven

what is apprehended bias?

A
  • a situation where a fair minded person might believe that the person hearing or deciding a case might X bring an impartial mind
76
Q

lesson seven

define open processes

A
  • the ability for the community to be informed & scutinise the legal system through processes being transparents.
  • this allows legal personnel to be held accountable & answerable for their actions
77
Q

lesson seven

what are examples of open processes?

A
  • the requirement that hearings be conducted in public - w/ certain exceptions –> ensure X corrupt or misuse of power
  • court judgements (decisions) are made available to the public
  • allowing the community, media & victims to attend court hearing
  • juries - memb from the community being able to parti. in & decide on a verdict
78
Q

lesson seven

what is participation in regards to the principle of fairness?

A
  • this feature refers to ability for various individuals - the accused, victims & witnesses to engage w/ the criminal justice system
79
Q

lesson seven

what are examples of participation?

A
  • the opp. to prepare their case through knowing the facts - during committals the pros. must disclose all relevant evidence to the accused
  • the opp. to examine wit. - both parties should have the opp. to cross-examine wit provided by the other sie apart from vul wit.
  • use of a lawyer - the accused should be able to defend themselves through leg assis. chosen by them; if they are eligible should recieve assist. via VLA
  • alllowing victims to use alternate arrangements when giving evidence - vul. wit.
  • VIS can be read out during sentencing
  • the right to X testify against oneself - the right to silence ‘
  • the presumption of innocence
80
Q

lesson eight

define equality

A
  • all people engaging w/ the justice system & its processes should be treated in the same way. H/W if the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow everyone to engage w/ the justice system w/o disparity or disadvantage
81
Q

lesson eight

what are the elements for the principle of equality?

A
  • same treatment
  • diff. treatment
82
Q

lesson eight

what does the element same treatment refer to?

A
  • this refers to formal equality whereby all individuals are treated the same & given the same lvls. of supp. regardless of their personal differences or characteristsics such as race, religion, gender, identity or age.
  • this idea adopts a ‘one size fits all’ approach
  • standard measure
83
Q

lesson eight

what are examples of the element same treatment?

A
  • all accused are entitled to the p.o.i - regardless of their characteristics
  • everyone who contacts a community legal centre should recieve the same information
  • all accused who pleads X guilty should be given access to the courts system
  • all victims should be provided information regarding proceedings - unless they don’t want to
  • all accused ppl. should be entitled to a fair trial w/ the same processes
84
Q

lesson eight

what does the element different treatment refer to?

A
  • this refers to substantive equality whereby if the legal system did treat ppl. in the same way but in doing so causes disadvantage or disparity then measures / adjustments should be put in place to allow ppl. to participate in the justice system
  • this idea does X work w/ a ‘one size fit all’ approach
85
Q

lesson eight

what are examples of the elements different treatment?

A
  • the provision of interpreters for all individuals - accused / victim / wit. who do X understand english
  • the provision of legal aid to supp accused who cannot afford leg. rep.
  • alternate arrangements made to support vul. wit
  • the provision of the Koori court for FN offenders.
86
Q

lesson nine

define access

A
  • all ppl should be able to engage w/ the justice system & its processes on an informed basis
87
Q

lesson nine

what are the elements of the principle of access?

A
  • engagement
  • informed basis
88
Q

lesson nine

what is engagement?

A
  • to engage w/ the justice system, ppl need to be able to use & participate in the system
  • this incl. physical, technological and financial access
89
Q

lesson nine

what is physical access?

A
  • the location of courts in vic indicate that they are situated in cities or areas of pop. density.
  • this may lead to ppl living in rural areas having limited access or having to endure additional hardships in travel time to go to court
90
Q

lesson nine

what is technological access?

A
  • hearings & conferences can be conducted virtually h/w individuals living in areas that are laking infrastructure for internet access or those who have a disability may have difficulty in utilizing these methods.
91
Q

lesson nine

what is financial access?

A
  • Vic leg aid is limited in its funding & thus ability to support individuals who do X have the means to pay for leg rep. ppl should X be prevented from def. their case b/c they do X have the financial means to do so
92
Q

lesson nine

what does informed basis mean?

A
  • ppl should be aware of their leg rights & the processes involved in their case. this means receiving adequate information in order to make an informed decision - e.g. deciding whether to plead g / X g
93
Q

lesson nine

what following provisions can support individuals to be more informed about their rights and processs?

A
  • education
  • access to legal support services
  • legal representation
94
Q

lesson nine

how does education help people be ore informed about their rights and processes?

A
  • individuals w/ higher lvls of edu. = more informed about their rights & have a more thorough awarness of leg. system.
  • inform pub by courts should be printed in plain-eng to support those w/ lower lit lvls
95
Q

lesson nine

how does having access to legal support services help individuals be more informed about their rights?

A
  • having free access to leg supp services can help ppl be more informed about their rights
  • –> incl going to generalist comm leg centres that are located in part suburbs or specialist comm leg centres (assist women or ref)
96
Q

lesson nine

how does legal representation assist people in becoming more informed about their rights and processes

A
  • leg rep = one of most effective ways that a person part acc person can be informed about their r & p
  • although VLA = lim from providing full support for everyone that req assistance, there are targeted & tiered lvl of assistance e.g mention lawyers to full grants of leg assistance
97
Q

lesson three

when is the burden of proof in a criminal case is reveresed?

A

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year 12 legal studies (9 decks)

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