Law Unit 2

Question 1

Define a crime

Answer 1

An act or omission that goes against an existing law, which can be punishable and is harmful to an individual or society.

Question 2

What is the aim of criminal law?

Answer 2

The protection of the community.

Criminal law is designed to regulate the behaviour of everyone in society in order to protect communities.

Question 3

What is the aim of civil law?

Answer 3

The protection of individual rights.

Civil law is designed to enforce the rights of the individual and the obligations that exist between people.

Question 4

What are the parties involved in a criminal case? (identify which party is bringing the case)

Answer 4

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.

Question 5

What are the parties involved in a civil case? (identify which party is bringing the case)

Answer 5

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.

Question 6

What is the burden of proof in a criminal case? (who has it and how does it relate to the presumption of innocence?)

Answer 6

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).

Question 7

What is the burden of proof in a civil case? (who has it and an example of this)

Answer 7

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.

Question 8

What is the standard of proof in a criminal case? (which party proves it?)

Answer 8

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.

Question 9

What is the standard of proof in a civil case?

Answer 9

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.

Question 10

What is the outcome of a criminal case?

Answer 10

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.

Question 11

What is the outcome of a civil case?

Answer 11

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.

Question 12

What is a summary offence?

Answer 12

Minor offence heard by the Magistrates’ Court.

Minor theft and traffic offences, eg driving over the speed limit.

Question 13

What is an indictable offence?

Answer 13

Serious offences heard by judge and jury in the County or Supreme Court.

Include murder, dangerous driving causing death, violent assault.

Question 14

What are the two elements of a crime?

Answer 14

Actus Reus and Mens Rea

Question 15

What is Actus Reus?

Answer 15

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.

Question 16

What is Mens Rea

Answer 16

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.]

Question 17

Define burden of proof

Answer 17

The burden of proof is the responsibility to prove the allegations made in a case.

Question 18

Define standard of proof

Answer 18

The standard of proof is the strength of the evidence needed to prove a case.

Question 19

Define presumption of innocence

Answer 19

The presumption of innocence guarantees that a person is considered to be innocent until a charge is brought against them.

Question 20

What is element one: THE KILLING WAS UNLAWFUL mean?

Answer 20

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.

Question 21

What is element two: THE VICTIM WAS A HUMAN BEING mean?

Answer 21

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.

Question 22

What is element three: THE DEFENDANT WAS A PERSON OVER THE AGE OF DISCRETION mean?

Answer 22

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.

Question 23

What is element four: THE DEFENDANT CAUSED THE VICTIM’S DEATH mean?

Answer 23

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.

Question 24

What is a causal link?

Answer 24

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.

Question 25

What is element five: THE DEFENDANT WAS OF SOUND MIND mean?

Answer 25

The prosecution must establish that the defendant was of sound mind at the time of the crime.

This means they were capable of forming the criminal intent (mens rea) to commit the crime.

Question 26

What is element six: THERE WAS MALICE AFORETHOUGHT mean?

SIMPLY: Define malice aforethough

Answer 26

The prosecution must prove the defendant acted with malice aforethought.

MALICE AFORETHOUGHT: The intention to kill the person. This malicious intention is the mental element, ie an intention to inflict harm, necessary for murder.

Question 27

What is the purpose of civil law?

Answer 27

Civil law is designed to enforce the rights of the individual and the obligations that exist between people.

Question 28

What is the standard of proof in civil law?

Answer 28

The standard of proof in a civil case is the balance of probabilities.

It requires the plaintiff to establish that it is more probable/likely than not that their version of the facts is correct.

Question 29

What is the burden of proof in civil law?

Answer 29

The burden of proof lies with the plaintiff in a civil case. 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.

Question 30

What are the steps to prove a case?

Answer 30

Breach, causation and loss

Question 31

What is breach?

Answer 31

A breach means that a person or group has committed an act that has impacted on someone in a way that has caused harm or loss.

An example is that the cook has left his band-aid in the meat pie. The cook was negligent in leaving his band-aid in the food to be eaten by customers. Perhaps the cafe is also at fault for not having adequate safety measures. Harm has been suffered by the consumer of the pie (mental and/or health)

Question 32

What is causation?

Answer 32

Causation is a connection between a defendant’s actions and the plaintiff’s losses.

The plaintiff must prove that the defendant’s breach was the cause of their damage or loss.

Question 33

What is loss?

Answer 33

The loss or harm suffered by the plaintiff.

Question 34

What is a remedy?

Answer 34

A legal solution to the loss or harm suffered.

Remedies can be:
Damages - money.
Injunction - a court ordered action (stop or start doing).

Question 35

What is the purpose of remedies?

Answer 35

It should restore the plaintiff to the position they were in (or as close as possible) before they were wronged.

Question 36

What does defence one: SELF DEFENCE mean?

Answer 36

An accused can use self defence if:
- They believe their actions were necessary to defend themself
- They believe their actions were reasonable in the circumstances.

The prosecution must then prove that the accused did not act in self defence to prove guilt.

Question 37

What does defence two: MENTAL IMPAIRMENT mean?

Answer 37

An accused can use mental impairment if:
- They did not know what they were doing because they didn’t understand their actions
- Did not know their conduct was wrong.

If mental impairment is successfully argued, then the accused is found ‘not guilty by reason of mental impairment’. They are usually still detained, but in a treatment facility rather than a jail.

Question 38

What does defence three: DURESS mean?

Answer 38

A person is not guilty if they act under duress.

The defence of duress applies if, at the time of the offence the person has a reasonable belief that:
- a threat of harm exists
- the threat would be carried out unless the offence was committed
- committing an offence is the only reasonable way to avoid the threatened harm
- the person’s conduct is a reasonable response to the threat.

Question 39

What does defence four: SUDDEN OR EXTRAORDINARY EMERGENCY mean?

Answer 39

A person is not guilty if they act as a result of a sudden or extraordinary emergency.

The person must reasonably believe that:
- there is a sudden or extraordinary emergency
- their actions are the only reasonable way of dealing with the situation
- their actions are a reasonable response to the situation.

Question 40

What does defence five: AUTOMATISM mean?

Answer 40

A person may use automatism as a defence if they were not in control of their body at the time of the offence.

The defence may be used when:
- Sleeping or sleepwalking
- Suffering concussion
- During an epileptic seizure
- The result of a medical condition

Question 41

What does defence six: INTOXICATION mean?

Answer 41

A person may use intoxication as a defence, if at the time of the offence they acted involuntarily as a result of being intoxicated due to drugs, alcohol or some other substance.

However, the intoxication must NOT be self induced.

Question 42

What does defence seven: ACCIDENT mean?

Answer 42

A person may use the defence that their actions were an accident.

That is, there was no mens rea, and that the offence was unintentional.