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Law Flashcards

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1
Q

L1 - Why do we need law?

Why do we need laws?

A

The need for laws relies centrally on the task of our legal system to combine and delicately balence two conflicting ideas

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2
Q

L1 - Why do we need law?

Who do laws apply to?

A

Legal laws apply to everyone

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3
Q

L1 - Why do we need law?

What are the roles of laws?

A
  • to provide guidlines on what is acceptable behaviour and what is not (set boundries for behaviour)
  • to establish a frameworkin which people live
  • to protect the rights of individuals
  • to achieve social cohesion
  • to protect and preserve social values
  • perscribe legal concequences for breaching laws
  • to create institutions and governments

Overall: laws establish rules which aim to achieve social cohesion and protect the rights of individuals

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4
Q

L1 - Why do we need law?

What are the roles of individuals?

A
  • responsible for being awear of laws
  • abide to all legal laws
  • protect their rights by assisting the police force
  • help to achieve social cohesion

Overall: Individuals are bound by the laws and are expected to abide to them, however, can act when rights are infindged (to commit a breach or infraction of; violate or transgress)

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5
Q

L1 - Why do we need law?

What is the role of the legal system?

A
  • deals fairly and justifies with individuals who have broken the law or breached someone elses rights
  • applying the law
  • enforcing the law

**

Overall: The legal system applies the law and enforces it to achieve social cohesion and protect the rights of individuals

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6
Q

L1 - Why do we need law?

What is the legal system?

A

The legal system is a set of methods and institutions which makes administers and enforces laws.

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7
Q

L1 - Why do we need law?

What is social cohesion?

A

Social cohesion refers to the insured safety of everyone in a community and the inclusion of everyone equally regarding individuals working together to maintain and balence order and peace.

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8
Q

L1 - Why do we need law?

What is a rule?
What is a law?

A
  1. A rule is a non-legal a boundry enforced by authorities/groups/associations that only apply to specific groups.
  2. A law is a legal system that eveyone must abide to, enforced by the police and legal officers (state specific)
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9
Q

L2 - Why do we need laws? - case studies

Define:
1. Minor Offence:
2. Summary Offence:
3. Indictable Offence:

A
  1. Minor Offence rfers to a less serious crime (traffic violations) with lighter penalties
  2. Summary Offence refers to a minor crime delt with quickly by lower courts without a jury
  3. Indictable Offence refers to a serious crime requiring a trial by jury
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10
Q

L3 - What do the police do?

What is police power?

A

Police power refers to the inherit authority of a government to enforce order and regulate behaviour

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11
Q

L3 - What do the police do?

What are individual rights?

A

Individual rights refer to the liberties and rights granted to individuals by law, designed to protect individuals from government over reach and ensure personal freedoms.

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12
Q

L3 - What do the police do?

What do the police do?

A

The police
1. prevent
2. detect
3. prosecute

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13
Q

L3 - What do the police do?

What is prevention?

A

Prevention refers to…

prevent (patrol), deter (punish), educate (advise)

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14
Q

L3 - What do the police do?

What is detection?

A

Detection refers to…

In person (arrest), technology, investigate

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15
Q

L3 - What do the police do?

What is prosecution?

A

Prosecution refers to…

caution (minor offenses), fine, court

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16
Q

L4 - Police powers and individual rights

What rights do the police have in custody questioning?

A
  • entitled to ask quetsions as a part of an investigation process
  • able to question a suspect for a reasonable time before thet are released on bail or unconditionally brought before the magistrates court
  • If the police suspect or have reason to believe that an individual has or is abt to commit a crime, then the police must give the person a causion of their rights
  • they shall no question a minor w/o a parent/guardian/3rd party present
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17
Q

L4 - Police powers and individual rights

What rights do individuals have when held custody

A
  • right to silence
  • right to a lawyer
  • young people have the right to only be questioned with parent/guardian/3rd party present
  • minors have the right to comminicate privately w/ a parent

3 more check book then see PP

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18
Q

L4 - Police powers and individual rights

What are the rights around giving out your name/address?

A

A person is required to give the police their name and address if they (police) belive on reasonable grounds that individual has commited a crime or is abt to
OR
if the individual may be able to help them in an investigation of indictable (serious) offences.

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19
Q

L4 - Police powers and individual rights

What are the rights of individuals in a court of law/talking to police?

A
  • innocent until proven guilty (presumption of innocence)
  • right to silence (can be revoked by approval from the supreme court)
  • right to request officers name, badge, department
  • treatment of innocence (using words like alleged, accused as they have not yet been found guilty)
  • do nnot have to help the police do their job (prove their innocence, polie have to prove their guilty)
    *
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20
Q

L4 - Police powers and individual rights

How can the right to silence be revoked?

A

The right to silence can be revoked by approval from the supreme court in situation where police are investigating a matter of organised crime or for public safety (e.g. terrorist attacks)

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21
Q

L5 - Court Hierachy - the court system

What is a criminal case?

A

A criminal case refers to an individual (the accused) has commited an illegal act that inflicts harm on another individual or society

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22
Q

L5 - Court Hierachy - the court system

Where are criminal cases taken?

A

Criminal cases are taken to court by the state or federal government (the prosecutor)

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23
Q

L5 - Court Hierachy - the court system

What happens when the accused is found guilty?

A

If the accused is found guilty of a commited crime they will recieve a punichiment (called a sanction)

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24
Q

L5 - Court Hierachy - the court system

What is the role of the court?

A

The role of the court is to hear the case and listen to their plea (guilty or not guilty) and assign a punishment or refuse punishment and set them free

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25
Q

L5 - Court Hierachy - the court system

List the types of courts in hierachy:

A
  1. High court (federal/family court)
  2. Supreme court of appeal (state)
  3. supreme court (trial division/state)
  4. country court (state)
  5. magistrates court (state/coroners’ court/childrens court)
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26
Q

L5 - Court Hierachy - the court system

What is a jurisdiction?

A

A juridiction refers to the power a court has to hear a case

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27
Q

L5 - Court Hierachy - the court system

What is an original jurisdiction?

A

An original jurisdiction refers to the power of a court to hear a case for the first time

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28
Q

L5 - Court Hierachy - the court system

What is an appeallate to jurisdiction?

A

An appeallate to jurisdiction refer to the power of a court to hear a case of appeal.

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29
Q

L5 - Court Hierachy - the court system

What is an Appeal in relation to the Victorian Court System?

A

An appeal is a legal process in which a party to a case asks a higher court to review and change the decision made by a lower court.

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30
Q

L5 - Court Hierachy - the court system

Identify the 5 Victoria Court systems:

Lowest to Highest Ranking

A
  1. Magistrates Court
  2. County Court
  3. Supreme Court - Trial Division
  4. Supreme Court of Appeal
  5. High Court
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31
Q

L5 - Court Hierachy - the court system

Define the Magistrates Court and what cases it hears:

A

The Magistrates Court refers to the lowest rankning court that is responsible for hearing minor civil or criminal cases.

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32
Q

L5 - Court Hierachy - the court system

List relavent personnel in the Magistrates Court:

A

Persided by:
1. Single Magistrate

No Jury present

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33
Q

L5 - Court Hierachy - the court system

What Jurstictions does the Magistrates Court include?

A

The Magistrates Court has:
1. Criminal Jurisdiction
2. Civil Jurisdiction
3. Family Law Jurisdiction
4. Specialist Courts and Programs
5. Coronial Jurisdiction

The Magistrates Court has no appealate to Juristiction as this court cannot hear on appeal

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34
Q

L5 - Court Hierachy - the court system

What appeals does the Magistrates Court have?

A
  1. Appeals against decisions of the Magistrates Court** to the County Court** (for criminal cases).
  2. Appeals on points of law to the Supreme Court (for civil cases).
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35
Q

L5 - Court Hierachy - the court system

Define the County Court and what cases it hears:

A

The County Court refers to a middle court in the Victorian Law system, this court hears a range of summary offences (criminal), civil matters and some criminal appeals.

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36
Q

L5 - Court Hierachy - the court system

List relavent personnel in the County Court:

A

Presided by:
1. A single Judge
2. A jury may be present

However, Appeals in this court are presided by:
1. A single Judge

no jury in an appeal in this court

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37
Q

L5 - Court Hierachy - the court system

What Jurstictions does the County Court include?

A

The County Court has:
1. Criminal Jurisdiction
2. Civil Jurisdiction
3. Appellate Jurisdiction

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38
Q

L5 - Court Hierachy - the court system

What appeals does the County Court have?

A
  1. Appeals to the Supreme Court: Appeals on questions of law can be made from the County Court to the Supreme Court.
  2. Appeals from Magistrates Court: against conviction/sentence/work cover matters/amount of damages awarded/civil appeals/criminal appeals
  3. Appeals from the children’s Court against sentence
  4. Appeals heard as a re-hearing
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39
Q

L5 - Court Hierachy - the court system

Define the Supreme Court - Trial Division and what cases it hears:

A

The Supreme Court - Trial Division refers to the highest court in the Victorian system. It deals with indictable offences or most serious matters (murder/treason)

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40
Q

L5 - Court Hierachy - the court system

List relavent personnel in the Supreme Court - Trial Division:

A

The supreme court trial division is presided by:
1. Judge refered to as a Justice
2. Jury

The supreme court trial division (appeal) is presided by:
1. Judge

Appeal = no judge

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41
Q

L5 - Court Hierachy - the court system

What Jurstictions does the Supreme Court - Trial Division include?

A

The Supreme Court’s Trial Division handles indictable offenses, complex civil cases, (large-scale commercial disputes, personal injury claims, and matters involving equity)
The Trial Division can hear cases involving wills and estates, and matters under administrative law.

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42
Q

L5 - Court Hierachy - the court system

What appeals does the Supreme Court - Trial Division have?

A

The Supreme Court, Trial Division includes appeals on points of law from the Magistrates court and the Childrens Court.

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43
Q

L5 - Court Hierachy - the court system

Define the Supreme Court of appeal and what cases it hears:

A

The Supreme Court of Appeal is the highest Court in the Victoria Law system, this court hears appeals from lower courts.

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44
Q

L5 - Court Hierachy - the court system

List relavent personnel in the Supreme Court of appeal:

A

The Supreme Court of Appeal is presided by:
* 3-5 judges called ‘justices’
* Jury

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45
Q

L5 - Court Hierachy - the court system

What Jurstictions does the Supreme Court of appeal include?

A

The Supreme Court of Appeal has:
* no original Juristiction
* Appeals from lower courts (District or County Courts, and single judges of the Supreme Court)
* Civil and criminal cases within its respective state or territory.

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46
Q

L5 - Court Hierachy - the court system

What appeals does the Supreme Court of appeal have?

A

The Supreme Court of Law includes appeals on:
* point of law
* convictions
* sanctions

From the Supreme court Trial Division, provided that leave to appeal has been given

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47
Q

L5 - Court Hierachy - the court system

Define the High Court and what cases it hears:

A

The High Court refers to the Federal Court, hearing cases regarding constitutional law issues and treason (federal).

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48
Q

L5 - Court Hierachy - the court system

Identify the Variations of the High Court

A
  • Single Justice
  • Full Court of High Court
  • Full Bemch of High Court
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49
Q

L5 - Court Hierachy - the court system

What does the High Court Single Justice hear?

A

The High Court Single Justice hears:
* matters arising from laws made by the commonwealth parliment (criminal or civil)
* under treaty
* when the commonwealth is a party
* disputes between states or residents of different states
* injunction is sought against officer of the commonwealth
* criminal cases (treason/sedition) indication hatred against the crown

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50
Q

L5 - Court Hierachy - the court system

List relavent personnel in each High Court:

A

The High Court single justice is presided by:
* a single justice

The Full Cut of High Court is presided by:
* 2+ Justices

The Full Bench of High Court is presided by:
* 7 Justices

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51
Q

L5 - Court Hierachy - the court system

What Jurstictions does each High Court include?

A

Single Justice:
* Original jurisdiction
* Interlocutory matters

Full Court of the High Court:
* Appellate jurisdiction
* Special leave applications

Full Bench of the High Court:
* Constitutional matters
* Final appeals

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52
Q

L5 - Court Hierachy - the court system

What appeals does the Full Court of High Court have? And what cases does it hear?

A

The Full Court of High Court hear cases involving matters of applications for speacial leave to appeal
This court has Appeals:
* against decisions of Supreme Courts/of States/Territories/Federal/Federal Court/Family Court/High Courts in Original Juristiction.

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53
Q

L5 - Court Hierachy - the court system

What appeals does the Full Bench of High Court have?

A

The Full Bench of High Court has Appeal in cases where:
* a court may depart from its own previous decision
* Principles of law are of major importance

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54
Q

L6 - Criminal Law (PP 8&9)

Identify and Explain the Factors needed to commit a crime:

A
  1. Against the Law - refers to a prohibited action required to be understood by every individual
  2. Omission - refers to a failure to act when you have a legal requirement to do so (criminal negligence)
  3. Act - refer to the physical act of commiting a crime
  4. Harmful - refers to a violation of individual rights with the potential to cause harm
  5. Punishable - refers to when an act or omission is subject to legal consequences or penalties
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55
Q

L6 - Criminal Law (PP 8&9)

Why do we have factors to identify criminal acts?

A

We have these terms as they are fundamental in understanding how criminal liability is established in legal contexts.

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56
Q

L6 - Criminal Law (PP 8&9)

Define ‘Against the Law’ vs ‘Act’:

In refrence to factors of a crime

A

A (criminal) ‘Act’ refers to a punishable offence by law, where as ‘Against the Law’ refers to an action that violates legal rules

Act - illgal with concequence
Against the Law - violation

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57
Q

L6 - Criminal Law (PP 8&9)

Define a crime:

A

A crime refers to an act that is harmful (mentally/physically/finantially /socially) to an individual or society and goes against acceptable behaviours

This act usually involves a victim.

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58
Q

L6 - Criminal Law (PP 8&9)

Define a Victim

A

A victim refers to a person who is harmed (financially/mentally/physically) by a commited crime.

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59
Q

L6 - Criminal Law (PP 8&9)

Define a Victimless Crime:

A

A victimless crime refers to a criminal act that is only harmful to the individual commiting the crime

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60
Q

L6 - Criminal Law (PP 8&9)

What does a punishable act refer to?

A

A punishable act refers to commiting a crime that goes against a legal law or rule that is subject to punishment through procesution in court.

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61
Q

L6 - Criminal Law (PP 8&9)

Define Mens Rea:

A

Mens Rea refers to an act commited in a guilty mind. Essentially even if the a crime has been commited , if the accused had no intent to commit th eact, she/he/they cannot be convicted of having commited the crime

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62
Q

L6 - Criminal Law (PP 8&9)

Define Actus Reas:

A

Actus Reas refers to an a guilty act commited. Essentially no matter how much an individual has thought about a crime, if they do not act apon said thoughts, no offence has been commited.

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63
Q

L6 - Criminal Law (PP 8&9)

Explain how Actus Reas and Men Rea link:

A

Actus Reas and Mens Rea link as they both must be present in order to convict a person of a crime.

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64
Q

L6 - Criminal Law (PP 8&9)

Define the Burden of Proof and who it falls on:

A

The Burden of Proof refers to the requirement to prove the defendant or accused is guilty of the suspected crime. This Burden falls on the police prosecution as it is their responsibility to prove the case using evidence.

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65
Q

L6 - Criminal Law (PP 8&9)

Identify the Standard of Proof:

A

The Standard of Proof is the level of proof needed to prove a crime has occurred. Typically beyond reasonable doubt.

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66
Q

L6 - Criminal Law (PP 8&9)

Explain the term ‘presumption of innocence’:

A

Presumption of Innocence refers to the right of an individual to be considered innocent until evidence proves otherwise beyond reasonable doubt.

Essentially there is no doubt in a magistrates/judges/justices/juries mind that the accused is guilty of the crime until the prosecution proves otherwise

67
Q

L6 - Criminal Law (PP 8&9)

Identify the age of Criminal Responsibility

A

Age of Criminal Resoponsibility:
It is presumed that a child under the age of 10 year old cannot form the intent to commit a crime, therefore cannot be charged with a crime.

If a child is between the age of 10-14 years old to be charged the prosecution must prove that the young person knew the difference between right and wrong

And if the individual is 14+ year old they are criminally liable for their actions and can be charged with a crime.

68
Q

L6 - Criminal Law (PP 8&9)

Identify Arguments For and Against raising the age of criminal responsibility:

A

Arguments for:
* Indigenous children are over represented due to racism - raising age will prevent marginalism
* Medical research shows that childrens brains are still developing during their formative years and that children below 12 yrs old have a limited capacity for reflection - age raised as they don’t have appropriate headspace

Arguments Against:
* raisning the age will lead to people using young children to commit crimes for them
* doli incapax rule provides a safegaurd as they aren’t held responsible so more kids will commit

doli incapax child under certain age cannot be held legallly responsible

69
Q

L7 - Glossary

Define an individuals liberty

A

An individuals Libertiy refers to the basic rights and freedoms they hold

70
Q

L7 - Glossary

Define Deter

A

Deter refers to discouraging someone from doing something

often by fear of consequence

71
Q

L7 - Glossary

Define Bail

A

Bail refers to the tempory release of an accused person before trial

often with conditions

72
Q

L7 - Glossary

Define verdict

A

A verdict refers to the final decision on guilt or innocence in a trial.

73
Q

L7 - Glossary

Define Sanction

A

Sanction refers to a penalty for breaking the law

74
Q

L7 - Glossary

Define Appellate

A

Appellate refers to reveiwing decisions over a lower court

75
Q

L7 - Glossary

Define Omission:

A

Omission refers to the failure to act when there is a legal duty to do so.

76
Q

L7 - Glossary

Define doli Incapax

A

doli Incapax refers to the presumption that children under a certain age cannot be held legally responsible

77
Q

L7 - Glossary

Define Marginalises

A

Marginalises refer to the treatment of someone or something as insignificant

78
Q

L7 - Glossary

Define formative years

A

Formative Years refer to an individuals early years (pre-teen/teen) crusial for development

79
Q

L7 - Glossary

Define ‘malice afore thought’:

A

malice afore thought refers to the **intent to kill or harm **an individual, it is a nessacary component for manslaughter and murder

80
Q

L7 - Glossary

Define Mitigate:

A

Mitigate refers to the act of lessening the severity of something (a sentance)

81
Q

L9 - Indictable Offneces (PP 11&12)

Define Indictable Offences

A

Indictable Offences rfeer to the most serious criminal offences.
Judged by the County or Supreme Court Divisions with a Judge OR Justice and Jury of 12

82
Q

L9 - Indictable Offneces (PP 11&12)

Define Manslaughter

A

Manslaughter refers to a punishable offence of up to 20 years that involves the unlawful killing of another person **without the intent to kill **

(distinguishes it from murder)

83
Q

L9 - Indictable Offneces (PP 11&12)

What is Mansluaghter defined by?

A

Mansluaghter is defined by the courts, not by parliment in a statute law.

84
Q

L9 - Indictable Offneces (PP 11&12)

Identify examples of Manslaughter:

A

examples of Manslaughter can include (if vitim dies):
1. Cowards Punch
2. Unlawful Acts
3. Dangerous Acts (fights)
4. Workplace manslaughter
5. Criminal Negligence

85
Q

L9 - Indictable Offneces (PP 11&12)

Identify the factors that must be proven for manslaughter to be charged:

A
  1. The accused commited an act that caused the death of anouther person
  2. the relavent act was committed contiously, deliberately and voluntarily
  3. the relevant act was unlawful
  4. the relevant act was dangerous
86
Q

L9 - Indictable Offneces (PP 11&12)

Define aspects of Element 1

The accused commited an act that caused the death of anouther person

A
  • The prosecution must provide evidence that the accused’s actions, not the circumstances caused the death of anouther person (victim)
  • the defence may try to argue that while they did harm the victim their actions **didn’t cause the death **but the circumstnaces
87
Q

L9 - Indictable Offneces (PP 11&12)

Define aspects of Element 2

the relavent act was committed contiously, deliberately, voluntarily

A
  • contiously refers to being in the right state of mind
  • voluntarily refers to **meaning to do it **(action - e.g. punch)
  • deliberately refers to acting on purpose
  • the prosecution must prove that the accused acted voluntarily, they don’t need to prove that the accused had the intened to cause death/serious injury to the victim.
88
Q

L9 - Indictable Offneces (PP 11&12)

Define aspects of Element 3

the relevant act was unlawful

A
  • for an act to be unlawful, the act must breach the criminal law, where the accused had the intent (mens rea) to commit that action, and acted upon those intents (actus reas) to caus ethe death of the victim
89
Q

L9 - Indictable Offneces (PP 11&12)

Define aspects of Element 4

the relevant act was dangerous

A
  • the test for dangerous is objective (grounded in fact or knowledge)
  • requires the prosecution to prove that a reasonable person in the position of the accused would have realised that his/her actions was dangerous and risked causing harm to the victim
90
Q

L9 - Indictable Offneces (PP 11&12)

Elaborate on the idea of Murder

A

use one note link to copy and paste

91
Q

L9 - Indictable Offneces (PP 11&12)

Define Voluntary Manslaughter

A

Voluntary manslaughter refers to an intentional killing where mitigating factors (lessens the sentence) are present.

92
Q

L9 - Indictable Offneces (PP 11&12)

How will an individual be charged guilty for voluntary manslaughter?

A

For a court to find a person guilty of voluntary manslaughter, the prosecution must prove that the death resulted from an intentional act committed in the heat of passion or under provocation, without premeditation or malice aforethought.

93
Q

L9 - Indictable Offneces (PP 11&12)

Give an Example of Voulntry Manslaught and explain why it is considered Voluntary:

A
  • Fatal assault under provocation leads to a Voluntary Manslaughter charge instead of murder because the provocation impairs the accused’s self-control, reducing their culpability and recognizing the emotional distress that influenced their actions.
  • fatal assault occurs during a sudden quarrel or heat of passion, Voluntary Manslaughter may be the appropriate charge instead of murder. The intense emotional state provoked by the situation diminishes the accused’s capacity for calm reflection, leading them to act impulsively without the intent required for murder.
  • fatal assault is committed in response to a threat of serious harm. A charge of Voluntary Manslaughter, rather than murder, may apply if the accused genuinely believes they are in immediate danger and reacts with excessive force, the law may view their actions as less blameworthy, recognizing the fear and urgency that drove them to act.
94
Q

L9 - Indictable Offneces (PP 11&12)

Define Involuntary Manslaughter

A

Involuntary manslaughter refers an unlawful killing without intent.

95
Q

L9 - Indictable Offneces (PP 11&12)

How will an individual be charged guilty for involuntary manslaughter?

A

For a court to find a person guilty of involuntary manslaughter, the prosecution must prove that the death was the result of an illegal act, omission an act of neglect, or a failure to take reasonable care.

96
Q

L9 - Indictable Offneces (PP 11&12)

What are examples of Involuntary Manslaughter and explain why they are Involuntary manslaughter cases?

A
  • A car accident caused by reckless driving is considered involuntary manslaughter because the driver’s dangerous behavior lacked intent to kill. The recklessness shows a disregard for safety, but without premeditated intent, making it a case of involuntary manslaughter.
  • When a death results from an illegal and dangerous act, such as using faulty equipment in a hazardous way, it is classified as involuntary manslaughter. The act was negligent and unlawful but did not involve intent to kill, focusing on the recklessness rather than premeditated harm.
  • If a death occurs during an unsafe prank or stunt, it may be charged as involuntary manslaughter. The act was reckless and negligent but not intended to cause harm, highlighting the **lack of intent while focusing on the dangerous **behavior that led to the death.
97
Q

L9 - Indictable Offneces (PP 11&12)

Define the Cowards Punch

A

A cowards punch refers to a single punch to a person’s head or neck delivered by an individual that **causes the victim’s death. **

This is the case even if the victim dies from an impact other than the punch itself. For example, if person A punches person B and person B falls over and hits his head on the road and dies, person A is guilty of single punch manslaughter.

Under Section 4A of the Crimes Act

98
Q

L9 - Indictable Offneces (PP 11&12)

Elaborate on the idea of Defences to Murder - Provocation

A

Provocation requires a series of events to have occurred which caused the accused to lose self-control and act ‘in the heat of the moment’ rather than with malice aforethought. This was said to reduce the level of culpability of the act and could reduce a charge of murder to manslaughter.

Provocation was abolished as a defence to murder in Victoria in 2005.
However, it can still be argued as a defence in murders alleged to have occurred prior to 2005.

Victoria now has the alternate charge of Voluntary Manslaughter, which can be laid in circumstances where a person was killed in response to provocation.

99
Q

L9 - Indictable Offneces (PP 11&12)

How can an accused be charged not guilty for murder baced on the factor Self-defence

A

An accused can be found not guilty of murder on the basis of self-defence only if:

  • The accused acted in self-defence
  • There was a reasonable possibility that the accused believed his or her actions were necessary to defend him/herself or another.

In considering whether the accused had a genuine belief that the act was necessary, all the accused’s characteristics and circumstances at the time of the offence will be taken into account. It must then be determined whether the accused’s actions were reasonable in the circumstances as she/he perceived them.

Where the accused believed the conduct was necessary in self-defence, but the infliction of death was not a reasonable response, the accused may be found not guilty of murder but guilty of manslaughter.

100
Q

Define Self Defence as a defence to murder:

A

Self-defence as a defence to murder is a legal argument where the accused **claims they used force, including lethal force, to protect themselves or others from an imminent threat of death or serious injury. **

Self-defence can be a complete defence to murder (leading to an acquittal) or a partial defence (leading to a finding of guilt for manslaughter).

101
Q

L9 - Indictable Offneces (PP 11&12)

Define Reckles Murder

A

Reckless murder is a fatal act in circumstances where the accused knew that death or really serious injury would probably result from his or her actions. It is not enough for the danger to have been apparent to a reasonable person or to the jury; it must have been obvious to the accused.

Really serious injury means bodily injury; psychological injury alone must not be considered really serious injury for the purposes of a murder conviction. What amounts to really serious injury is a matter for the jury.

102
Q

L10 - Defences to Manslaughter

What is a defence to manslaughter?

A

A defence to manslaughter refers to claims that the accussed makes in a criminal case that may defend the accussed actions in a court of law.

103
Q

L10 - Defences to Manslaughter

How does a defence to manslaughter effect a criminal case?

A

A defence to manslaughter effects a criminal case by either:
1. Full defence - lead to the finding of not guilty
2. **Partial Defence **(mitigating factor) - reduce the severity of the punishment

104
Q

L10 - Defences to Manslaughter

Identify all defences to Manslughter:

A
  1. Self-defence
  2. Not all Elements of Manslaughter have been proven
  3. Mental Impairment
105
Q

L10 - Defences to Manslaughter

Define Mental Impairment in terms of a defence to manslaughter:

A

Mental Impairment as a defence refers to mental health conditions or brain injuries that affect an individuals ability to reason

106
Q

L10 - Defences to Manslaughter

When and how can a mental impairment be used as a defence to manslaughter?

A

This defence may be used when a person has suffered from a mental impairment at the time of the committed offence

The offender must
1. not have known the nature of their actions
2. not have known their actions were wrong and were unable to think about their conduct like an ordinary person

107
Q

L10 - Defences to Manslaughter

What would the court do if the defence for manslaughter is a mental impairment?

A

The court will impose a custodial supervision order in these cases (the offender may be held in a forensic psychiatric hospital until they are no longer considered a threat)

108
Q

L10 - Defences to Manslaughter

Define Murder:

A

The common law offence of murder is defined as the unlawful and intentional killing of another human being by a person of sound mind.

Murder is punishable by a maximum penalty of life imprisonment.

109
Q

L10 - Defences to Manslaughter

Define Constructive murder/Section 3A murder/felony murder:

A

Constructive murder refers to a death caused in the course or furtherance of a serious crime (rape or aggravated robbery).

If a person is killed during the commission of such an offence, this is regarded as murder regardless of whether the accused possessed a specific intent to kill the victim.

3A of the Crimes Act 1958

110
Q

L11 - Roles in Court

What is a Court Networker:

A

A court Networker refers to individuals who support people attending court for any reason. They are not employed by the court but are volunteers from a community agency that supports people going to court. You may not see them in all courts.

111
Q

L11 - Roles in Court

What is police Officer?

(In court)

A

A police Officer refers to an individual present where there is a prisoner in custody. They may also appear as a witness to confirm/deny facts that have taken place

112
Q

L11 - Roles in Court

A

A ____ refers to an indivudal that assists people at the court counter with their inquiries. They coordinate the daily list of cases, issue summons and warrants, extend bail, organise court proceedings and provides advice and assists in accounting and administrative duties

113
Q

L11 - Roles in Court

What is a Judges Associate?

A

A Hudges Associate refers to an individual who sits in front of (and below) the judge and works as their personal assistant and research officer.
They are chosen and appointed. They will work closely with one particular judge and undertake much of their administrative work.
They perform certain functions in the court, such as announcing the charge(s) against the accused. In court they wear a black robe.

114
Q

L11 - Roles in Court

What is the Prosecution?

A

The Prosecution refers to the peopel who **put the case against the accused person(s) on behalf of the Crown **(or state). It is their role to present a case to the jury that the accused person committed the crime.

115
Q

L11 - Roles in Court

What is a Witness?

A

A witness refers to anyone who has knowledge of the event, or has a specialist or ‘expert’ knowledge that may shed light on the case.
They are likely to be asked questions by both sides.
This process involves calling evidence-in-chief, then cross-examination and possibly re-examination.

116
Q

L11 - Roles in Court

What is a Judge?

A

A Judge refers to the person who oversees a trial in higher courts.
They often wear a wig and gown. Their role is to make sure both parties obey the rules of court procedure.
They are also there to protect the rights of the accused person and the witnesses.
They sum up the evidence and explains the law to the jury before they retire to deliver their verdict.

117
Q

L11 - Roles in Court

What is the Juges role to a Jury?

A

In a court case it is the Judges role to explain laws to the Jury so they can make their decision with respect to the law

118
Q

L11 - Roles in Court

What is a Magistrate?

A

A Magistrate refers to an individual who oversees the conduct of a hearing and, where a defendant pleads not guilty, determine the verdict.
They are also responsible for deciding an appropriate sanction where a defendant is convicted.

119
Q

L11 - Roles in Court

What are the roles and responsibilites of Magistrates and Judges?

A

The roles and responsibilites of Judges and Magistrates include:
1. They must act impartial (neutral)
* not in favour of any side
* no connection with the prosecution of accussed (if so, they must excse themselves from the case and another will be appointed to hear the case)
2. Manage the Trial of hearing
* make sure the correct procedure is followed (both sides have an equal oppotunity to present their case)
* decide which evidence is permitted or excluded (hearsay, evidence is not admissible/permettied Or Hearsay, evidence - you cannot give evidence unless you are a witness)
3. Hand down a sentence involving:
COUNTY OR SUPREME COURT
* If a Jury is accessed guilty, or is the plead guilty, the case will be set down for as plea hearing and parties will be able to make a submission about sentencing
* Following the hearing , the judge must hand down a sentence (jail + length of prison time)
MAGISTRATE COUT
* If the magistrates Court finds the accused guilty , or the plea guilty, the case will be set down for a plea hearing and the parties will make a submission about sentencing
* Following that hearing, the Magistrate must hand down a sentence (jail + length of prison time)

120
Q

L11 - Roles in Court

What is A Jury?

A

A Jury refers to people chosen at random from those on the electoral roll. They are essentially a fact-finding body and they must perform these tasks:
* listen to all the evidence presented by both sides
* consider this evidence
* **reach a decision based on the evidence. **

If they find the accused guilty, they must do so ‘beyond reasonable doubt’. In all cases other than murder, treason and serious drug offences, their decision (of either guilty or not guilty) can be a majority.

121
Q

L11 - Roles in Court

What is an Electoral Role?

A

An Electoral Role refers to a roll every individual is added to when they are of age (18 years)

122
Q

L11 - Roles in Court

What type of cases are Juries requred for?

A

Juries are required for serious criminal trials and some civil cases in the county court and supreme courts (original Jusristiction when accussed pleads not guilty)

123
Q

L11 - Roles in Court

Identify the Categories of exemption from Jury Duty and define them:

A
  1. Ineligible - refers to individuals who have worked in the legal field (police, lawyer, judges, MPs) OR who cannit fulfil the role (limited english, deaf, blind, intellectually disabled)
  2. Disqualified - includes individuals who have been convicted or charged with a serious crime (Bankrupt)
  3. Excused - Includes people with a good reason for defering the duty to another time (living more than 50km from the ocurt, illness, only duty of care for child)
  4. Eligible - Includes people who are qualified or permitted to serve on a jury
124
Q

L11 - Roles in Court

What is a Defence Counsel/Defence Lawyer?

A

A Defence Counsel/Defence Lawyer refers to an individual who represents the person accused of the crime.

They call witnesses who may have knowledge of the event, including the accused, though an accused person does not have to give evidence. They will always be positioned at the Bar Table nearest the witness box.

125
Q

L11 - Roles in Court

What duties does a defence lawyer have?

A

A defence Lawyer has the duties to:
1. represent client in the Magistrates Court
2. Prepare a Brief (documents relating to the trail such as statements of witnesses, photos and other evidence) for the barister to enable that case to be represented in court
3. Trying to prove to the court that the accussed is not guilty

126
Q

L11 - Roles in Court

What is a Court Officer/Court Usher?

A

A Court Officer/Court Usher refers to an individual who is responsible for maintaining order in the courtroom, including calling and swearing in of witnesses and attending to the jury.

127
Q

L11 - Roles in Court

What is a Solicitor/Legal Assistant?

A

A Solicitor/Legal Assistant refers to an individual who assists the barristers and are familiar with the case, as they have probably done a lot of the preparatory work before the case comes to court.

128
Q

L11 - Roles in Court

What is a Barrister?

A

A Barrister refers to individuals who only take instructions from solicitors (so you must approach them first).
They wear robes and sit at ‘the bar’ (term for a group of collective barristers) facing the judge

129
Q

L11 - Roles in Court

What are the roles of Barristers?

A

Barristers have the following roles:
1. opening and closing addressed to the judge and/or jury
2. Paper Work
3. Appearing in Court to represent clients

130
Q

L11 - Roles in Court

Differenciate between Barristers and Solicters:

A

Barristers:
* wear a wig and gown
* speacilist in knowledge
* lower public exposure
* a pleading

Soliciter:
* legal work outside court
* advises clients
* draft legal documents
* desk job but travels to meet clients

131
Q

L11 - Roles in Court

What is an Accussed?

A

An accussed refer to a person who has been charged with an offence, they must be represented in court by a lawyer (or they might chose to represent themselves).

132
Q

L11 - Roles in Court

What rights does the Accussed have?

A

The accussed has these rights amoung others:
1. Participate in the hearing or trial
* prepare a defence OR stay silent
2. Make a submission about sentencing
* present arguments about why their sentence should be more lenient (lower)

133
Q

L12 - Sanctions

Define a Sanction:

A

A Sanction refers to penalties or other means of enforcement used to provide incentives (motives someone to do something) for obedience with the law or other rules and requisition (a demand or request made by proper authority)

134
Q

L12 - Sanctions

Define an Aggrivating Factor:

A

An Aggrivating Factor refers to facts about the offence/victim/offender that tends to increase the sentence of an offence.

135
Q

L12 - Sanctions

Define A mitigating Factor:

A

A mitigating Factor refers to facts and circumstances that lessens the severity of a criminal offence.

136
Q

L12 - Sanctions

Identify the Sanction Hierachy:

A
  1. Imprisonment
  2. Community Correction Order
  3. Fine, with or without regardingrecording a conviction
  4. Discharge, dismiss or Adjournment (a temporary stopping of a trial, enquiry, or other meeting)

Most to Least Serious

137
Q

L12 - Sanctions

Define a Fine:

A

A fine refers to a monetary penalty imposed on an offender. It’s an amount of money ordered to be paid by the offender to the State of Victoria.

138
Q

L12 - Sanctions

What must the court consider when imposing a fine?

A

The Court must consider:
1. The financial circumstances of the offender
2. The nature of the burden that payment will impose
3. Any loss of destruction or, or damage to, property suffered by a person as a result of the offence and the value of any benefit to the offender as a result of the offence

139
Q

L12 - Sanctions

What happens when a fine isn’t paid?

A

When a fine is not paid an offender may be imprisoned or required to undertake unpaid community work.

140
Q

L12 - Sanctions

Define Community Correction Order:

A

Community Correction Order refers to a supervised sentence (flexible order) served in the comunity. Kepping in mind the order also must include up to 1 year in jail or a fine.

141
Q

L12 - Sanctions

What conditions do Community Correction Orders Include?

A

Conditions Include:
1. Attending treatment programs (drug/alcohol treatment - anger management)
2. Partaking in Community Service (up to 600 hrs) - costs $40.28 per day
3. abiding by a curfew
4. not reoffending
5. not leaving Victoria without permission

142
Q

L12 - Sanctions

Define Imprisionment:

A

Imprisonment refers the removal of an offender from the community denying them their liberty by locking them in jail, given for the most serious offences

This is considered to be the most severe sanction. Used as a last resort

143
Q

L12 - Sanctions

Identify the purposes of Sanctions?

A

The 5 purposes of Sanctions include
1. Protection
2. Punishment
3. Detendance
4. Denouncement
5. Rehabilitation

144
Q

L12 - Sanctions

Define Protection:

A

Protection refers to ensuring the safety of the community from the actions of offenders (protects social cohesion)

145
Q

L12 - Sanctions

Define Punishment:

A

Punishment refers to penalising the offender for the harm they caused.

146
Q

L12 - Sanctions

Define Detendance:

A

Detendance refers to the disscouragement of the offender (SPECIFIC) to offend again OR to make an example of the offender to disscourage others (GENERAL) in the commuinty form commiting a similar crime.

147
Q

L12 - Sanctions

Define Denouncement:

A

Denouncement refers to making it clear that society disapproves of the conduct (the manner in which a person behaves) by condeming (express complete disapproval) the conduct of the offender

148
Q

L12 - Sanctions

Define Rehailitaion:

A

Rehabilitation refers to reforming by helping the offenders learn the error of their ways and not re-offend.

149
Q

L12 - Sanctions

What is a Penalty Unit?

A

A Penalty Unit refers to the determination of the amount a person is fined with when they commit a minor offence.

150
Q

L15 - Principles of Justice

Define Justice:

A

Justice refers to the maintenance of what is just or right by the exercise of authority of power; assignment or deserved reward or punishment; giving of due desserts

151
Q

L15 - Principles of Justice

What can Justice/Veiws on what is was considered fair depend on?

A

The views on what is considered fair or reasonable can depend on:
* Cultures
* Political or religious beliefs
* Community views
* Personal experiences
* Personal values

E.G. A victim in a criminal case may view a maximum sentence of 10 years as being just, while the family and friends of the accused may see the same sentence as unjust.

152
Q

L15 - Principles of Justice

Identify the Principles of Justice:

A
  • Fairness
  • Access
  • Equality
153
Q

L15 - Principles of Justice

Define Fairness:

A

Fairness refers to when all people can participate in the justice system, and its processes should be impartial and open.

Fairness does not necessarily mean that everyone gets the same thing. It is often the case in society that in order to treat someone fairly, you have to treat them differently

154
Q

L15 - Principles of Justice

What should people be able to do in the criminal Justic system for a fair processsing?

A

In the criminal justice system, fairness means fair processes and a fair hearing.
People should be able to:
* Undergo impartial (unbiased) court processes
* Under open court processes (to allow public scrutiny)
* Participate by having the opportunity to present their case and rebut (disprove) the prosecution case.

155
Q

L15 - Principles of Justice

Define Access:

A

Access refers to when all people should be able to engage with the justice system, understnd their legal rights, pursue their case and its processes on an informed basis.

156
Q

L15 - Principles of Justice

How does a person’s ability to access the legal system influence their pursuit of justice within the Criminal Justice System?

A

The ability of a person to access the legal system (and therefore, justice) depends on **how effectively they are able to make engage in the processes and institutions on an informed basis. **

This does not mean the person seeking access will get the outcome they want, but it does mean parties should have the opportunity to make use of the processes and institutions within the Criminal Justice System, and that these are not beyond their reach.

157
Q

L15 - Principles of Justice

What should people be able to do in terms of access?

A

People should be able to:
* Engage with the system (this includes physical, technological, financial access without delays)
* Be informed
* Understand legal rights and processes involved in a case
* Obtain information to make a reasonable and sensible decision (this can be achieved through education, information and legal representation)

158
Q

L15 - Principles of Justice

What should people not be detered by?

A

People should not be deterred by the formalities associated with a hearing or trial

159
Q

L15 - Principles of Justice

Define Equality:

A

Equality refers to all people engaging with the justice system and its processes should be treated in the same way.

However, if the same treatment creates disparity or disadvantage, adequate measures should be implements to allow everyone to engage with the justice system without disparity or disadvantage.’

In society all people treated equally regardless of age, ethnicity, disability & sexual orientation.

In the criminal justice system, equality means that all people should be treated equally before the law, with an equal opportunity to present their case.

160
Q

L15 - Principles of Justice

Identify the 2 ways equality can be achieved:

A

Equality can be achieved in two ways:
1. Formal Equality
2. Substantive Equality

These concepts relate to principles of justice, particularly in the context of fairness and how individuals or groups are treated under the law or in a social context.

161
Q

L15 - Principles of Justice

Define Formal Equality:

A

Formal Equality is a principle that suggests that no person or group should be treated differently because of personal attributes or characteristics. **
It implies a “one size fits all**” approach where everyone is treated the same, regardless of their specific circumstances or needs.

162
Q

L15 - Principles of Justice

Define Substantive Equality:

A

Substantive Equality refers to a principle that acknowledges that treating everyone the same can sometimes lead to unequal outcomes, particularly when individuals or groups have different needs or face different circumstances.

Substantive equality **involves taking measures to ensure that everyone can participate equally, which might mean treating people differently to achieve fairness. **

Equity over Equality

163
Q

L15 - Principles of Justice

Gie an example of substantive Equality:

A

The example of an accused person who does not speak English illustrates this principle: providing them with an interpreter would be necessary to ensure they have a fair opportunity to participate in their defense, rather than simply treating them the same as someone who does speak English.

164
Q

L15 - Principles of Justice

Formal vs Substantive Equality:

A

In essence, Formal Equality focuses on treating everyone the same, while In essence, Formal Equality focuses on treating everyone the same, while Substantive Equality emphasizes the need to take differences into account to ensure fair outcomes.

Politics and Law (2 decks)

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