elements of a crime, murder, manslaughter, self defence

Question 1

what is the presumption of innocence

Answer 1

• everyone is innocent until proven guilty
• it has to be proven beyond a reasonable doubt
• burden of proof rests with the prosecution

Question 2

how does sentencing work?

Answer 2

once a person is found guilty, the court decides the sanction based on previous convictions, behaviour ect.

Question 3

how does bail show the presumption of innocence?

Answer 3

by making sure someone isn’t punished before trial.

Question 4

how does legal representation show the presumption of innocence?

Answer 4

experts to help defend the accused well. levels the playing field between expert lawyers on the prosecution.

Question 5

how does significant evidence show the presumption of innocence

Answer 5

committal proceedings, which decide if there is enough evidence for a jury, a conviction and a case, mean that theres no necessary stress as only strong cases proceed to trial.

Question 6

how do prior convictions show the presumption of innocence?

Answer 6

prior convictions cannot be used as evidence / considered during a trial, only after the person is already found guilty. deciding whether someone is guilty is based purely on evidence from the case, no prior actions.

Question 7

how does the jury show the presumption of innocence?

Answer 7

the judge must explain the presumption of innocence to the jury and they can only rely on evidence from the case.

Question 8

what is the principle of self incrimination?

Answer 8

• the accused doesn’t have to give evidence
• the right to remain silent: other than name and address
• it is enshrined in the victorian charter.

Question 9

what is the impact on police investigations and what is the balance to this?

Answer 9

• can be intimidating
• police are trained
• police have access to experts
  balance:
• police need reasonable grounds to arrest
• person can remain silent
• police can only collect forensic evidence for serious offences.

Question 10

what are the exceptions to the presumption of innocence?

Answer 10

• murder, aggravated car jacking, home invasion cannot get bail. unless you are a child, suffering serious violence, have severe mental health problems or your imprisonment is less time than remand.
• if drugs are found on property that a person owns then onus is on the accused to prove they didn’t know the drugs were there.

Question 11

what is actus reus?

Answer 11

the wrongful act or failure to act, resulting in criminal consequences.

Question 12

what is mens rea

Answer 12

mental element, requires one of these mental states to be proven:
-intention (worst)
-recklessness (bad)
-negligence (least bad)

Question 13

what is strict liability and what is it used for?

Answer 13

offences where there is no need to prove the mental element. e.g speeding, running a red light or serving an underage person alcohol. it works to deter criminal conduct as it is easy to be convicted for. also doesn’t waste courts time.

Question 14

criminal responsibility for under 10 years old

Answer 14

they cannot be charged with committing a crime as it is presumed children under 10 cannot for the intention to commit a crime.

Question 15

criminal responsibility for 10-14 year olds
also what is doli incapax

Answer 15

there is a presumption 10-14 year olds are incapable of forming mens rea because they dont know right from wrong in the same way an adult does. this is called doli incapax.

Question 16

how can doli incapax be overturned?

Answer 16

if the prosecution can show the child knew that what they did was wrong but it depends on their personal upbringing, prior history, medical reports and psychological reports.
the prosecution can use normally inadmissible evidence e.g what a child says when interviewed by police, which could be unfair because of the power imbalance but it cannot be used when the young accused person is standing trial.

Question 17

criminal responsibility over 14?

Answer 17

able to be found criminally liable

Question 18

what is burden of proof?

Answer 18

prosecution has to convince jury that the accused is guilty beyond a reasonable doubt.

Question 19

what is the standard of proof?

Answer 19

the idea that the prosecution’s case must be believed beyond a reasonable doubt.

Question 20

who decides if a person is guilty?

Answer 20

in a magistrates court a magistrate, in a county or supreme court a jury of 12 decided and then a judge decides a sanction.

Question 21

what are the two types of crimes?

Answer 21

crimes against the person: causing harm or threatening another person.
crimes against property: using force or deception to obtain, damage, or destroy property.

Question 22

what are the three levels of crime?

Answer 22

-summary offences: minor criminal offences e.g disorderly conduct
-indictable offences heard summarily: mid criminal offences heard like a summary offence. it is easier for the accused because there are lower maximum sentences, its quicker and cheaper. you have to be eligible by finding that your offence is punishable by 10 years or less and the court agrees and finds it appropriate.
-indictable offences: serious offences e.g murder, stalking.

Question 23

what is a principal offender/s?

Answer 23

someone who committed or were directly involved in a crime. normally the person who committed the actus reus. e.g someone who hit someone with their car

Question 24

what is an accessory?

Answer 24

a person who knows / thinks a person is guilty of a crime who acts to prevent the arrest, prosecution, conviction or punishment of that person. e.g someone who helped hide the body of the person who was hit by a car.
an accessory can be found guilty even if the principle offender is found not guilty

Question 25

penalties for accessories

Answer 25

if its life imprisonment, an accessory can get no longer than 20 years. for all other cases the penalty cannot be more than 5 years or half of the maximum penalty of the principle offender.

Question 26

what is malice aforethought?

Answer 26

the accused either intended to kill or cause serious injury or were reckless as to whether they would kill or cause serious injury.

Question 27

what is intentional murder?

Answer 27

person kills with intention to kill or cause grievous bodily harm. they acted with a conscious desire to bring the result or they acted with the foresight that the outcome was almost certain to occur.

Question 28

what is reckless murder?

Answer 28

causes death while acting with recklessness. it is easier to prove as you only need to prove that the death occurred and it was easily foreseeable by the accused.

Question 29

what are two circumstances in which an act is not voluntary?

Answer 29

sleepwalking and committing a crime or having involuntary movements and committing a crime e.g tourettes

Question 30

5 examples of voluntary acts

Answer 30

stabbing, pushing, kicking, punching and shooting

Question 31

what is a supervening event?

Answer 31

an event which isn’t the initial act but is part of the cause of the accident.

Question 32

what is the substantial cause test

Answer 32

means that as long as a defendants action were a substantial factor in the crime, they can be found guilty. the chain of causation is not broken unless the act of the accused is no longer a substantial and operating cause of death.

Question 33

what happened in the r vs evan and gardiner case and what is the significance?

Answer 33

during a prison fight someone was stabbed by evans and gardiner. they were treated for their wounds but died 11 months later due to excess scar tissue in their bowel, which was failed to be diagnosed by the doctor. evans and gardiner tried to be appealed arguing that it was the poor treatment of the victim that caused his death, not the stabbing. the court used the substantial and operating cause to determine that the stabbing was a substantial and operating cause of the victims death. the significance is that it was a key demonstration of the substantial and operating cause test.

Question 34

what is the natural consequences test?

Answer 34

it could be used if someone threatens someone and while the victim is trying to escape they fall and die.
the three major elements are the accused caused the victim to have a well founded fear of physical harm, it was reasonable for the victim to want to escape and the victim selected a reasonable mode of escape.

Question 35

do foetuses count as people when it comes to murder in victoria

Answer 35

no

Question 36

what is an example of when the point of death may be difficult to determine

Answer 36

if someone is on life support

Question 37

when does life end according to victorian law?

Answer 37

when there is irreversible cessation of circulation of blood or irreversible cessation of all function of the brain.

Question 38

what is manslaughter

Answer 38

causing the death of another without malice aforethought, is done by an unlawful and dangerous act or by criminal negligence. max penalty is 20 years and it is objective.

Question 39

whats the level of intent with murder compared to manslaughter

Answer 39

murder has intent while manslaughter either has a dangerous act or negligence.

Question 40

actus reus and mens rea of murder and manslaughter

Answer 40

• murder: have actus reus and mens rea (malice aforethought)
• manslaughter: has actus reus but no mens rea

Question 41

how is murder and manslaughter determined?

Answer 41

murder is whether the accused themself understood death / greivious bodily harm would occur from their actions while manslaughter is determined by how a reasonable person in the accused position would’ve acted.

Question 42

what is self defence?

Answer 42

when a person lawfully uses force or threat of force in order to prevent unlawful harm against themselves or another

Question 43

when can self defence be raised in a murder case?

Answer 43

when the accused believed their conduct was necessary to protect themselves or someone else from harm during the actus reus.

Question 44

what is a complete defence?

Answer 44

a defence that means a person cannot be found guilty

Question 45

how does the burden of proof change in defence cases?

Answer 45

the accused has to provide evidence that their act was to protect themselves or another.

Question 46

what do you need to prove to make it self defence

Answer 46

the conduct must’ve been necessary to protect themselves or others
the conduct must be a reasonable response in the circumstances according to what the accused believed

Question 47

how is self defence different in family violence?

Answer 47

it can be proven by two different scenarios that are usually not applicable.
1. the person is responding to harm that isnt immediate
2. the force used may be in excess of the threatened harm.

Question 48

what is defence of duress

Answer 48

the idea that the accused only committed a crime under compulsion due to a threat should they fail to comply.

Question 49

what must the threat of harm be in murder cases in defence of duress?

Answer 49

the accused must believe they will be killed or seriously harmed

Question 50

subjective and objective parts of defence of duress

Answer 50

subjective: the conduct was the only reasonable way to avoid the threatened harm means that a person must reasonably believed that their conduct was the only reasonable way that the harm can be avoided.
objective: the conduct was a reasonable response to the threat means they have to show whether a reasonable person in the accused’s position would also be compelled in the same manner due to the threat of death or really serious injury.

Question 51

what happened in the royall case and what is the significance?

Answer 51

royall appealed, he admitted he had assaulted the victim one night and the morning after she was found dead, naked and her hair was wet outside. he says that she had been in the shower when he heard a thump and because she had epilepsy he was worried and opened the door with a knife, and she then jumped out a window. royall denied injuring or intent to injure her but there was evidence of a forcible entry and the victims blood in the bathroom, a chipped glass ashtray and gouge marks on the bathroom wall. there was no blood or fingerprints on the ashtray and no marks to indicate the victim had been struck. royall’s appeal was dismissed because the victim had well-founded reason to jump out the window and no alternative means of escape. the significance is that it created a new set of principals as to what breaks the chain of causation.

Question 52

what category is murder in vic

Answer 52

category 1 (worst)

Question 53

what is a custodial supervison order?

Answer 53

a custodial supervision order is jail time and something to rehabilitate the criminal, such as rehab

Question 54

what is the but for

Answer 54

a term to talk about something that happened to cause the crime
e.g “if it wasn’t but for the stabbing, they wouldn’t have died.”