Law Unit 2 Flashcards
Define a crime
An act or omission that goes against an existing law, which can be punishable and is harmful to an individual or society.
What is the aim of criminal law?
The protection of the community.
Criminal law is designed to regulate the behaviour of everyone in society in order to protect communities.
What is the aim of civil law?
The protection of individual rights.
Civil law is designed to enforce the rights of the individual and the obligations that exist between people.
What are the parties involved in a criminal case? (identify which party is bringing the case)
The prosecution will take the accused to court for the matter they are alleged to have committed.
The accused is an individual who is believed to have committed an illegal act that is harmful to a person or society.
What are the parties involved in a civil case? (identify which party is bringing the case)
The plaintiff takes the case to court to be resolved.
The defendant is an individual or organisation that is alleged to have breached the rights of the plaintiff.
What is the burden of proof in a criminal case? (who has it and how does it relate to the presumption of innocence?)
In a criminal case, the burden of proof is held by the prosecution.
Because it is held by the prosecution, the burden of proof helps to uphold the presumption of innocence (i.e. the accused does not need to prove their innocence).
What is the burden of proof in a civil case? (who has it and an example of this)
In a civil case, the burden of proof lies with the plaintiff. The plaintiff is the person who has brought the action.
An example is the person who bought the pie with the band-aid, the person who has an injury.
What is the standard of proof in a criminal case? (which party proves it?)
In a criminal case, the prosecution must prove guilty beyond reasonable doubt.
It is a very high degree of certainty that the accused committed the offence.
What is the standard of proof in a civil case?
The standard of proof in a civil case is the balance of probabilities.
It requires the plaintiff to establish reasonable satisfaction that the facts as presented are probably correct and have occurred as stated.
What is the outcome of a criminal case?
Sanctions
If the accused pleads guilty, or is found guilty in court, they will be punished.
The punishment in criminal cases is known as a sanction.
Sanctions include prison and fines.
What is the outcome of a civil case?
Remedies
The plaintiff in a civil case will seek a remedy.
A remedy should restore the plaintiff to the position they were in before the wrongdoing, as far as possible.
The most common remedy is damages (money).
Another remedy is injunction - this asks the defendant to start or stop doing an action.
What is a summary offence?
Minor offence heard by the Magistrates’ Court.
Minor theft and traffic offences, eg driving over the speed limit.
What is an indictable offence?
Serious offences heard by judge and jury in the County or Supreme Court.
Include murder, dangerous driving causing death, violent assault.
What are the two elements of a crime?
Actus Reus and Mens Rea
What is Actus Reus?
Guilty act
To be found guilty of a crime, the prosecution must prove that the person committed (or failed to commit) the wrongful act.
For example, to be guilty of stalking, they must have physically done something, such as following or contacting the victim, including on social media.
What is Mens Rea
Guilty mind
The prosecution must prove that the person knowingly or intentionally committed the wrongful act. It refers to the state of mind of the person at the time the act is committed.
Other terms to express mens rea include: maliciously, recklessly, negligently and willfully.
For example, for someone to be found guilty of importing drugs into Australia, it must be proven that they intentionally brought the drugs into Australia.
[A common defence is the absence of mens rea, ie the person was unable to form the intention to commit the crime.
For example, the accused may suffer from a mental impairment. So if it can be proven that the accused acted involuntarily or did not fully understand their actions, then they cannot be found guilty of the crime.]
Define burden of proof
The burden of proof is the responsibility to prove the allegations made in a case.
Define standard of proof
The standard of proof is the strength of the evidence needed to prove a case.
Define presumption of innocence
The presumption of innocence guarantees that a person is considered to be innocent until a charge is brought against them.
What is element one: THE KILLING WAS UNLAWFUL mean?
The prosecution must prove the defendant did not have a lawful reason for causing the other person’s death.
Examples of legal reason for killing another person include:
A soldier killing an enemy in war.
Police acting in the course of their duties.
A person who conducts an execution such as hanging or an electric chair.
What is element two: THE VICTIM WAS A HUMAN BEING mean?
The victim must be a living person who has been born. By law, the victim must be in a living state and not an unborn child or an animal.
What is element three: THE DEFENDANT WAS A PERSON OVER THE AGE OF DISCRETION mean?
In Victoria, the defendant must be aged 10 years or over.
Note, a person aged between 10 and 13 years old is considered unable to form intent to
commit a crime. The defendant would only be found guilty of a crime if the prosecution can establish the child knew, at the time of the crime, that their actions were wrong.
What is element four: THE DEFENDANT CAUSED THE VICTIM’S DEATH mean?
The prosecution must prove causation meaning it must be proven that there was a direct link and unbroken causal link between the defendant’s actions and the death of the victim.
That is, if the death would not have occurred, when it did, without the defendant’s actions, it is likely the defendant caused the victim’s death.
What is a causal link?
If an event, whether through human action or natural causes, does not break the chain, the defendant is the cause.
If a new act breaks the chain, the actions of the defendant stops at that point, and the new cause is the reason for the victim’s death.
