Law Unit Two A Flashcards
Define a crime
A crime is 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 for criminal law?
The protection of the community.
Designed to regulate the behaviour of everyone in society in order to protect communities.
What is the aim for civil law?
The protection of individual rights.
Designed to enforce the rights of the individuals and the obligations that exist between people.
What are the parties involved in a criminal case? (Which party is bringing the case to court?)
The accused
The individual who is believed to have committed an illegal act that is harmful to an individual or society.
The prosecution
The state (or the police).
The prosecution will take the accused to court for the matter they are alleged to have committed.
What are the parties involved in a civil case? (Which party is bringing the case to court?)
The plaintiff
The individual or organisation who believes their rights have been breached.
The plaintiff takes the case to court to be resolved.
The defendant
The individual or organisation that is alleged to have breached the rights of the plaintiff.
Who has the burden of proof in a criminal case?
The prosecution bears the burden of proof.
They must prove the accused is guilty. The accused does not need to speak.
Who has the burden of proof in a civil case?
The plaintiff has the burden of proof.
They must prove that the defendant is responsible.
Who has the standard of proof in a criminal case? What is it?
The prosecution.
To prove guilt beyond reasonable doubt.
Who has the standard of proof in a civil case? What is it?
The plaintiff.
The balance of probabilities.
(It is more likely than not that the defendant is responsible.)
What is the outcome of a criminal case?
Sanctions include prison and fines.
What is the outcome of a civil case?
The plaintiff 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 money.
Another remedy is injunction, this asks the defendant to start or stop doing an action.
What is a summary offence and examples
Minor offence heard by the Magistrates’ Court.
Minor theft and traffic offences, like driving over the speed limit.
What is an indictable offence and examples
Serious offences heard by judge and jury in the County or Supreme Court.
Include murder, dangerous driving causing death and violent assault.
What is Actus Reus?
‘Guilty act’
The prosecution must prove that the person committed (or failed to commit) the wrongful act.
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.
Maliciously, recklessly, negligently, willfully.
Define burden of proof
The responsibility to prove the allegations made in a case.
Define standard of proof
The strength of the evidence needed to prove a case.
Define presumption of innocence
A person is considered to be innocent until a charge against them is proven that they are guilty beyond reasonable doubt.
An accused person does not have to prove they are innocent, the prosecution has to prove they are guilty.
The accused has the right to silence, they do not need to give evidence.
Rationale behind the presumption of innocence
‘It’s better to let a guilty person walk free, than convict the innocent.’
The imbalance of resources available to a defendant vs the state.
Recognition and respect of the importance of preserving liberty, dignity and autonomy.
What are the 6 elements of murder?
The killing was unlawful
The victim was a human being
The defendant was a person over the age of discretion
The defendant caused the victim’s death
The defendant was of sound mind
There was malice aforethought
Define element one - the killing was unlawful
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 during war
Police acting in the course of their duties
A person who conducts an execution such as hanging or electric chair
Define element two - the victim was a human being
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.
Define element three - the defendant was a person over the age of discretion
In Victoria, the defendant must be aged 10 years or over.
A person aged between 10-13 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.
Define element four - the defendant caused the victim’s death
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.
Define 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.
Define element 5 - the defendant was of sound mind
This means they were capable of forming the criminal intent (mens rea) to commit the crime.
Define element 6 - there was malice aforethought
The prosecution must prove the defendant acted with malice aforethought.
Malice aforethought is the intention to kill/inflict harm on the person.
What are the 7 defences to murder?
Self defence
Mental impairment
Duress
Sudden or extraordinary emergency
Automatism
Intoxication
Accident
Define defence 1 - self defence
They believe their actions were necessary to defend themself.
They believe their actions were reasonable in the circumstances.
Define defence 2 - mental impairment
They did not know what they were doing because they didn’t understand their actions.
Did not know their conduct was wrong.
If proven, the accused is found ‘not guilty by reason of mental impairment’ and are usually still detained but in a treatment facility rather than a jail.
Define defence 3 - duress
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.
Define defence 4 - sudden or extraordinary emergency
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.
Define defence 5 - automatism
They were not in control of their body at the time of the offence.
Examples are sleeping or sleepwalking, suffering concussion, during an epileptic seizure, the result of a medical condition.
Define defence 6 - intoxication
If, at the time of the offence they acted involuntarily as a result of being intoxicated due to drugs, alcohol or some other substance.
The intoxication must NOT be self induced.
Define defence 7 - accident
Their actions were an accident.
There was no mens rea, and that the offence was unintentional.
What is breach?
A person or group has committed an act that has impacted on someone in a way that has caused harm or loss.
What is cause?
A connection between a defendant’s actions and the plaintiff’s losses.
What is loss?
The loss or harm suffered by the plaintiff.
Define remedy
A legal solution to the loss or harm suffered.
It should restore the plaintiff to the position they were in (or as close as possible) before they were wronged.
Remedies can be: Damages (money) or Injunction (a court ordered action)
