Legal Studies Unit One AOS2

Question 1

Define a crime

Answer 1

A crime is an act or omission that is against an existing law, harmful to an individual or to society, and punishable by law.

Question 2

Identify the purposes of criminal law (IPSJ)

Answer 2

Protect individuals
Protect property
Protect society
Promote justice

Question 3

Explain protect individuals

Answer 3

Protect individuals by establishing crimes and processes to deal with people who commit these crimes.

Example: Laws that make murder and theft crimes are aimed at protecting individuals from these types of behaviours.

Question 4

Explain protect property

Answer 4

Protect privately owned and public property.
Includes protecting land and the environment, and personal property.

Example: It is an offence to trespass on another person’s property.

Question 5

Explain protect society

Answer 5

Protect the community as a whole by setting standards and making it clear what behaviour is not tolerated by the community and the legal system.

Helps to maintain public order and community safety.
Example: Laws prohibiting drug offences and terrorism offences help to protect society.

Question 6

Explain promote justice

Answer 6

Promote justice by providing processes to deal with offenders and to enforce the law.

Having the state enforce criminal law helps prevent victims of a crime, and their family and friends from taking the law into their own hands and imposing their own punishment on an offender.

Question 7

Define and explain the burden of proof

Answer 7

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

Held by the person or party who brings the case to court (criminal: the prosecution, civil: the plaintiff).

In a criminal case, the prosecution must present sufficient evidence to prove the guilt of the accused BEYOND REASONABLE DOUBT.

Question 8

Define and explain the standard of proof

Answer 8

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

In criminal law, the prosecution must prove the case BEYOND REASONABLE DOUBT.

A reasonable doubt must be sensible and realistic, and not one that is imaginary or fanciful or an unrealistic possibility. It is not enough that the accused is probably guilty or very likely to be guilty.

Question 9

Define the presumption of innocence

Answer 9

The presumption of innocence is a guarantee by the state to its citizens that if they are accused of a crime they will be treated, as far as possible, as being not guilty until the charge has been proved beyond reasonable doubt.

Beyond reasonable doubt is the standard of proof required for the prosecution to succeed in a case.
The prosecution is required to prove that the accused is guilty beyond reasonable doubt rather than the accused being required to prove their innocence.

The responsibility of the magistrate (for minor crimes) and the jury (for serious crimes) to impartially consider the strength of the evidence presented to the court and decide whether an accused is guilty beyond reasonable doubt.

The presumption of innocence is protected as a human right in the international covenant on civil and political rights (1966), an international treaty that Australia has signed. This is also protected in the charter of human rights and responsibilities act 2006 (vic), a victorian statute that protects fundamental human rights.

Question 10

How is the presumption of innocence upheld?

Answer 10

The burden of proof
The prosecution must present evidence to the court to prove the guilt of the accused rather than the accused being required to prove their innocence.

The standard of proof
The prosecution is required to present sufficient evidence to the court to prove that the accused is guilty beyond reasonable doubt - a high standard of proof.

Police officers are required to reasonably believe a person has committed a crime before arresting them
The police must have a good reason to arrest a person.

A person who has been arrested and charged has the right to apply for bail
Unless there are good reasons why they should be denied their freedom and be held in custody while waiting for their court hearing.
A person has the right to apply for and be granted bail.

An accused has the right to legal representation
Where an accused has been charged with a serious offence, the court can adjourn the trial until the accused has obtained legal representation.
Not be disadvantaged of not having someone to present them while the prosecution is against them.

An accused has the right to silence
An accused does not need to answer any questions.
Not required to give evidence in court.
This ‘silence’ is not to be interpreted as a sign of their guilt.

The accused’s previous convictions cannot be revealed in court until the sentencing process begins.

A person who has been convicted, or found guilty, of a crime has the right to appeal a wrongful conviction.

Question 11

Identify the elements of a crime

Answer 11

Actus reus + Mens rea = Crime

Question 12

Define actus reus

Answer 12

A latin term meaning ‘guilty act’ (the physical element of a crime)
The prosecution must prove the person physically did the wrongful action (or inaction).

Example: For a person to commit the offence of stalking, they must have physically done something, such as contracted or followed the victim against their wishes, and caused the victim to feel fear or to be distressed.

Question 13

Define mens rea

Answer 13

A latin term meaning ‘guilty mind’ (the mental element of a crime)
The prosecution must prove that the person knowingly or intentionally committed the wrongful action (or inaction).

Mens rea refers to the state of mind of the accused at the time of the offending.

Example: For a person to be convicted of importing illegal drugs into Australia, the prosecution must prove the person knowingly or intentionally brought the drugs into Australia.

Question 14

Explain strict liability

Answer 14

Where culpability or responsibility for commiting a crime can be established without having to prove there was mens rea.

Crimes of strict liability are offences that do not have a mental element.
Do not have the requirement of mens rea (a guilty mind).
The prosecution is not required to prove the accused had the intention to commit the crime to be found guilty.

To establish that the accused is guilty, the prosecution is only required to prove the accused committed the wrongful action (or inaction) - actus reus.

Many strict liability are summary offences.
Examples are consuming intoxicating liquor (alcohol) while driving, fare evasion on public transport, and failing to display ‘P plates’ when driving on a probationary driver licence.
Defence to strict liability crimes: The accused may argue, in their defence, that the crime was committed due to a reasonable or honest mistake of fact.

Question 15

Define age of criminal responsibility

Answer 15

The age of criminal responsibility is the minimum age a person must be to be charged with committing a crime.

Question 16

Explain the three types of criminal responsibility

Answer 16

A person under 10 years of age cannot be charged with a crime.

A person aged between 10-13 years can be charged with a crime if the prosecution can prove that the person knew, at the time of the crime, that their actions were wrong.
Rebutting the legal principle of doli incapax (considered incapable of committing an action with criminal intent)
Doli incapax depends on factors such as the child’s age, upbringing, maturity, prior criminal history, and what the child said and did before, during and after committing the crime.
Medical and psychological assessments can be undertaken to help determine whether a child has the intellectual or moral capacity to know their actions are criminally wrong.

A person aged 14 years or older is considered to be criminally liable for their actions and can be charged with committing a crime.

Question 17

Define doli incapax

Answer 17

Doli incapax (considered incapable of committing an action with criminal intent)
Doli incapax depends on factors such as the child’s age, upbringing, maturity, prior criminal history, and what the child said and did before, during and after committing the crime.

Question 18

What are the three types of crime

Answer 18

The social purpose (or nature) of the offence
The type of offender or victim
The seriousness of the crime

Question 19

Define the social purpose (or nature) of the offence and one organisation that does this

Answer 19

Categorising a crime according to whether it involved a wrongful action (or inaction) against a person, property, the wellbeing of society as a whole, or even the criminal justice system.

One organisation that classifies crimes according to their social purpose is the Crime Statistics Agency, an independent organisation responsible for processing, analysing and publishing Victorian crime statistics.
Classifies crimes into six broad divisions or categories.

Question 20

Identify the divisions

Answer 20

Division A: Crimes against the person (protecting individuals)
Examples: Homicide (murder and manslaughter), assault, sexual offences, stalking, harassment, threatening behaviour.

Division B: Property and deception offences (protecting property)
Examples: Arson, property damage, burglary or breaking and entering, theft.

Division C: Drug offences (protecting society)
Examples: Dealing and trafficking drugs, manufacturing drugs, using drugs, possessing drugs.

Division D: Public order and security offences (maintaining public order and security)
Examples: Weapons and explosives offences, public security offences (terrorism offences), disorderly and offensive conduct.

Division E: Justice procedures offences (protecting justice and the rule of law)
Examples: Perjury (giving false evidence under oath), contempt of court (the failure to obey a court order or an act which shows a disregard for the authority of the court or judge).

Division F: Other offences (protecting rights and cultures, and improving society)
Examples: Regulatory driving offences (dangerous driving and driving under the influence of drugs and alcohol), transport regulation offences (travelling without a valid ticket).

Question 21

Identify the type of offender or victim

Answer 21

Cyber crime
Hate crime
Organised crime
Juvenile crime
White-collar crime

Question 22

Define cyber crime

Answer 22

A criminal offence in which the use of computers or information communication technologies is an essential and central part of the offending.

Examples: Online fraud, the creation of malicious software (malware and viruses), and ‘computer hacking’ to dishonestly gain personal financial data.

Question 23

Define hate crime

Answer 23

A criminal offence motivated by hostility and prejudice towards the victim.

Prejudice and bias against another person or group based on a personal characteristic (a person’s gender, age, race, religion or sexual orientation).
Increase feelings of insecurity and fear within the wider community.

Question 24

Define organised crime

Answer 24

A criminal offence undertaken in a planned and ongoing manner by organised syndicates or gangs.

Illegal activities such as drug manufacturing and trafficking, money laundering, the sale of illegal firearms, and illegal prostitution and gambling.

Have their own rules, leadership structure and members, and may operate within a specific neighbourhood or country, or internationally.

Question 25

Define juvenile crime

Answer 25

A criminal offence undertaken by a young person aged between 10-18 years.

Examples: fare evasion, assault, property damage (graffiti, vandalism) and theft (shoplifting, theft of a bicycle, or theft of a motor vehicle)

Question 26

Define white-collar crime

Answer 26

A criminal offence undertaken by people who work in government, businesses or in the corporate world.

People who are often well paid and hold trusted positions of employment, use their position or influence to gain financial advantage.
Examples: Theft, fraud, tax evasion and investment scams.

Question 27

Identify the two possible participants of a crime

Answer 27

Principal offender
Accessory

Question 28

Define principal offender

Answer 28

A person who commits an offence and has carried out the actus reus (the act or omission that constitutes a crime).
Any person who is involved in a crime is also considered to be a principal offender.
This includes any person who intentionally assists, encourages or directs another person to commit a crime.
A person will be involved in a crime if they assist with the planning of a crime or encourage another person to commit a crime.
A person involved in a crime can be found guilty whether or not other participants have been prosecuted or convicted.

Question 29

Define accessory

Answer 29

A person who, without lawful excuse, assists a principal offender after a crime has been committed. This assistance includes helping the principal offender avoid being arrested, prosecuted, convicted or punished for the crime.

A person must believe or know that the offender has committed a serious indictable offence.
An accessory can be found guilty of an offence regardless of whether the principal offender is found guilty.

Question 30

A person is ‘involved in’ a crime when he or she…

Answer 30

Intentionally assists, encourages or directs another person to commit a crime - knowing it is highly likely that another crime may be the result.

Make an agreement with another person to commit a crime together - knowing it is highly likely that another crime may be the result.

Question 31

Summary offences

Answer 31

Minor criminal offences.
Generally head in the Magistrates’ Court.
Less serious types of crime.
Contained in the summary offences act (1966) vic.
The final hearing, at which both parties put their case before the court, is known as a hearing.
A magistrate determines whether the person charged with a crime is guilty.

Question 32

Indictable offences

Answer 32

Major criminal offences.
Tried in the County Court or Supreme Court.
The final hearing, at which both parties put their case before the court, is known as a trial.
When an accused pleads not guilty, a jury determines the verdict (whether or not the accused is guilty beyond reasonable doubt)

Question 33

Indictable offences heard summarily

Answer 33

Serious crimes that may be heard summarily (without a jury)
Heard in the Magistrates’ Court if the court determines it is appropriate and accused consents
A magistrate determines whether the person with a crime is guilty
Examples: less serious assaults, causing criminal damage of less than $100,000, theft of less than $100,000, and computer offences such as unauthorised access.

An indictable offence cannot be heard summarily in the Magistrates’ Court
If it is punishable by more than 10 years’ imprisonment or a fine greater than 1200 penalty units and without the consent of the accused

Reasons for indictable offence heard summarily
Quicker and cheaper (jury is costly)
An accused may receive a lesser punishment because the maximum term of imprisonment a magistrate can impose is capped at no more than two years for a single offence and five years for multiple offences.

Question 34

Define culpable driving

Answer 34

Culpable driving is when a person causes the death of another person by driving their motor vehicle in a negligent or reckless manner or while under the influence of alcohol or drugs.

Unlawful homicide offence (the killing of another person without legal justification).
Serious indictable offence.
Must be given a prison sentence, unless special reasons or circumstances.
Maximum penalty is 20 years imprisonment and/or a fine of 2400 penalty units.

Question 35

Elements of culpable driving causing death

Answer 35

The prosecution must prove that…
The accused was the driver of a motor vehicle
- Substantial control over the movement of the motor vehicle.

The accused culpably caused a person’s death while driving the motor vehicle.
Culpable: the responsibility for a fault or wrongful action.
Driving recklessly - driving in a way that consciously or unjustifiably a substantial risk that another person could die or be seriously injured (driving at high speeds in bad weather)
Driving negligently - driving in a way that fails to observe a reasonable standard of care that a reasonable person would have observed in similar circumstances, and that the others in the community have the right to expect (fatigue can cause driver to fall asleep)
Driving under influence of alcohol or drugs - driving in a condition where the consumption of alcohol or drugs makes the accused incapable of properly driving.

Question 36

Defences to culpable driving causing death

Answer 36

The prosecution must prove that the accused were not driving the vehicle and their driving was not culpable (an unexpected and unpredictable mechanical failure, or poor environment or road conditions).

Duress
Sudden or extraordinary emergency
Automatism

Question 37

Define murder

Answer 37

The unlawful killing of another person with malice aforethought, by a person who is the age of discretion and of sound mind.

Question 38

Identify the elements of murder

Answer 38

The killing was unlawful.
The victim was a human being.
The accused was a person over the age of discretion.
The accused caused the victim’s death.
The accused was of sound mind.
There was malice aforethought.

Question 39

Defences to murder

Answer 39

Self defence.
Mental impariment.
Duress.
Sudden or extraordinary emergency.
Automatism.
Intoxication.
Accident.