Law Flashcards
What is Law?
A complex body of rules that establish the legal rights and obligations of individuals and institutions.
An obligatory rule of conduct, governed by sanctions, created by am accepted authority in society.
- Name and define the two sources of law in Australia:
Statute Law - parliament made law OR legislation made law
Common Law - judge made law
- Explain the three Common Law presumptions:
- Irrebutable presumption
- Rebuttable presumption
- Presumptions of fact
- Explain the difference between civil and criminal law:
Criminal law is to protect society as a whole and Civil law is to regulate conduct between individuals.
- List the Courts in Victoria that Police are more likely to deal with:
Magistrates Court
County Court
Supreme Court
- Explain the three main functions of the Magistrates’ Court:
- To hear and determine all summary offences
- To hear and determine all your indictable offences which may be heard and determined summarily
- To conduct committal proceedings into indictable offences and either direct the accused to be tried / remanded in custody until garnered bail or discharge the accused
What are the two irrebuttable presumptions?
- A child under 10 cannot commit a crime
- A person is presumed to know the law
Provide the 5 main rebuttable presumptions:
- A child btw 10-14 is presumed to not be able to form men’s rea (guilty mind) which is an essential element of crime
- Each person is presumed innocent until proven guilty
- Each person is presumed sane until proven otherwise
- Voluntary drunkenness is no defence to a charge
- Liquid is presumed to be liquor. Does not need to be analysed in the instance of a charge.
Define Presumptions of fact:
Facts that are generally agreed to without needing evidence.
A decision that can be drawn from the existence of other available facts and that is usually agreed to without the need for further evidence.
Who are the parties involved in a criminal case?
Informant
Accused
Complainant
Prosecutor
Defence counsel
Who are the parties involved in a civil case?
Plaintiff
Defendant
What is the standard of proof required for a criminal proceeding?
Beyond reasonable doubt
What is the standard of proof required for a civil proceeding?
On the balance of probabilities
How many jurors are present in criminal and civil proceedings?
Criminal - 12
Civil - 6
Who presides / is the decision makers at the Magistrates / County and Supreme Courts?
Magistrates Court - The Magistrate
County Court - The Judge
Supreme Court - Judge and Jury of 12
What is Actus Rea?
Means a guilty Act associated with an offence
Define Men’s Rea:
Means the guilty mind - the mental aspect of an offence
For any decision made by a MOP, it needs to be in line with the S.E.L.F test. Explain:
S - Do my actions withstand Scrutiny?
E - Are they Ethical?
L - Are they Lawful?
F - Are they Fair?
What offences are seen in the Magistrates Court?
Summary offences OR
Indictable offences that are heard summarily
Where are indictable offences heard?
County or Supreme Court
What is the general rule for ascertaining whether an offence is an indictable or a summary offence?
Refer to the Crimes Act. If an offence does not state to be indictable than it is usually a summary offence.
What is a statute of limitations?
Is a law that refers to the limitation / time period.
Summary - usually 12 months
Indictable - None. If a person commits murder today they can be charged any time in the future.
Children- 6 months for summary
What is IOTS in the Magistrates Court?
Indictable Offences Triable Summarily
Why is it necessary to ascertain the classification of an offence?
To differentiate between indictable and summary offences.
- to identify mode of trial
- to identify the relevant arrest and search powers
- to select the correct warrant or summons procedure
- to identify what paperwork is required
Explain what is meant by ‘statute of limitations’:
Refers to the limitation period. The maximum period of time after an offence is committed within which legal proceedings can commence.
- 12 month for most summary offences.
- Indictable offences have no limitation period.
Section 29 of the Criminal Procedures Act 2009 explains the criteria that must exist before an IOTS matter can be heard in the Magistrates Court. What must occur?
- The accused must consent to the summary hearing
- The court considers whether the offence is appropriate to be determined summarily
Sect 7 of the sentencing Act lists the options available to the court if it finds a person guilty of an offence. List three:
- record a conviction and order a term of imprisonment
- record a conviction and order detention in a mental health service
- record a conviction and make a drug treatment order
- impose a fine
- dismiss the charge without conviction
Section 5 of the Sentencing Act provides reasons for penalties and sanctions to be imposed by the courts. List three of these options:
- deter the offender or other persons from committing offences of the same or a similar nature
- to protect the community from the offender
- punish the offender to an extent which is just in the circumstances
What is the maximum term of imprisonment the Magistrate and County court can impose for an indictable offence or indictable offence triable summarily?
Magistrates - 2 years
County - Dictated by the nature of the offence
Explain a cumulative sentence and confirm what the max term of imprisonment that can be imposed by the Magistrates court?
Cumulative sentence means that the terms of imprisonment can be added together. The longest cumulative sentence a Magistrate can impose is 5 years.
Summary offence - 2 years
Max term not specified - 2 years
What is evidence?
Is the means by which facts are proved
Explain section 55 of the Evidence Act and how it relates to the admissibility of evidence in court:
The evidence presented must be relevant to the matter under enquiry.
Explain hearsay evidence:
A statement that is made by a person other than the witness. Considered unreliable evidence.
What are some exceptions to the hearsay rule?
Numerous
- admissions and confessions
- confessions made through interpreter
- bail applications
- dying declarations
What is a Fact in issue?
When a fact in a case is not agreed to by either the prosecution or the defence.
A fact in issue can be proved 2 ways. What are they?
Evidence
Admissibility
Who is the Principal offender?
The person who committed the crime.
What is the definition of a child in the court room?
A person who at the time of the alleged crime was under the age of 18 but of or over the age of 10
What is the points of proof?
Each and every point of proof specific to the offence must be proved by the prosecutor for any charge to be brought before the court.
There are many rules that determine admissibility. Exclusionary rules are generally designed to assist in ascertaining the truth by excluding evidence that is unfairly prejudicial or unreliable. What are two?
- Hearsay
- Opinion
- Character
- Discretion to exclude evidence
Can witnesses give their opinion when interpreting the evidence being provided?
No. Interpreting the evidence is the role of the court.
What are two common exceptions to the Opinion rule?
- Lay opinion (a persons perception eg. accused age or height)
- Specialised knowledge
Can an MOPF conduct a VARE interview?
No. Only those that have passed a VARE training course can complete them. Usually SOCIT unit in relation to children or cognitively impaired persons. Third party must be present in interview room.
Name 2 types of Evidence:
- direct
- circumstantial
- real
- documentary
- corroborative
Explain Actus Reas:
- Where an ‘act’ is done
- Where an ‘act’ is not done. Eg. Not providing adequate food or water for kids
Explain Mens Rea:
Describes the state of mind of the accused at the time of the offence - ‘guilty mind’.
Define culpability:
To be culpable is to be ‘blameworthy’.
Whether a person realised the wrongful nature of their actions and should therefore take responsibility.
Finish the sentence: For an accused person to be criminally responsible for committing an offence it must be demonstrated that -
The person committed both the physical act and mental elements of that act.
Finish the sentence: For an accused person to be criminally responsible for committing an offence it must be demonstrated that -
The person committed both the physical act and mental elements of that act.
List 2 states of mind capable of amounting to mens rea:
- intention
- recklessness
- knowledge
- belief
Describe recklessness:
The accused foresaw the probably consequences of their actions and then followed through with the act anyways.
Describe Intention:
The accused acted with the aim of purpose of committing the conduct which forms the offence.
All indictable offences must prove Actus Rea and Mens Rea. True or False?
True
How can Mens Rea be proved?
- Admissions
- Overt Physical acts
What are the 3 defences of crime?
- Impairment (mental)
- Mistake of Fact
- Automatism
The Crimes Act provides degrees of responsibility of participants in a crime. List 3 types of participation:
- Using an innocent agent
- Vicarious liability
- Intentional assisting, encouraging or directing
- Entering into an Agreement or understanding
- Being an accessory
- Concealing offences for benefit
What is the significance of demonstrating a persons overt physical act?
It can show guilty intent and make a strong case for the prosecution.
