legal term 2 Flashcards
criminal law
defines and prohibits the types of behaviours and conduct that are unacceptable and outlines sanctions for people who undertake these prohibited behaviours
Crime = an act or omission that is against an existing law, harmful to an individual or to society, and punishable by law
impacts victim + wider community
types of crime
division a: crimes against person
- homicide, stalking
division b: property and deception offences
- arson, bribery
division c: drug offences
- drug use/possession, trafficking
division d: public order and security offences
- weapons and explosives offences, offensive conduct
division e: justice procedure offences
- perjury
division f: other offences
- drink driving, transport regulation offences
type of offender/vicitm
- cyber-crime - committed using devices
- prejudice motivated crime
- organised crime - planned and ongoing manner by organised criminal syndicates or gangs
- juvenile crime -undertaken by people between 10-18 years
- white-collar crime - people who work in government/ businesses/corporate world
indictable offences
serious crimes generally heard and determined in the higher courts ( County/ Supreme Court) before a judge and jury
- listed in Crimes act
summary offences
minor crimes heard and determined in the Magistrates’ Court by a magistrate
- listen in summary offences act
- without jury
- 10 years limit
indictable offences heard summarily
less serious indictable offences can be heard summarily but court and accused have to agree first
- hearing quicker and cheaper
- lesser sanction
- 20 years limit
principle offender
person who carries out actus reus
person who is involved in the commission of an offence
person who enters into an agreement to commit a crime
accessory
a person who aids the someone who they believe to be the principle offender to prevent their arrest/punishment
trial outcomes don’t affect each other
general defences
self-defence
- prosecution
mental impairment
-party who raises it
duress
- prosecution
sudden or extraordinary emergency
- prosecution
automatism
-prosecution
intoxication
- accused
accident
-prosecution
elements of murder
1 The killing was unlawful
lawful = war or death penalty
2 The accused’s acts were voluntary
3 The accused committed acts that caused the victim’s death
a direct, unbroken causal link
‘Would the death have occurred, when it did, without the accused’s actions?’
4 The accused acted with intent to kill or cause serious harm
murder sanctions
must be imprisoned
sets a non-parole period
average 25 years
other homicide offences
Attempted murder
Conspiracy to murder
Incitement to murder
Manslaughter
Infanticide
Child homicide
unfit to stand trial
In addition to defences to crime, a person cannot be tried for a criminal offence if they are deemed to be ‘unfit to stand trial’.
- understand the nature of the charges laid against them
- enter a plea
- follow the course of the trial, and
- instruct their lawyer
defences to murder
did not intend to kill/seriously harm
break in causation, their actions did not significantly and substantially cause the victims death
their actions were not unlawful
strict liability
Crimes of strict liability are offences that do not have a mental element. The prosecution is not required to prove that the accused had the intention to commit the crime.
Many strict liability crimes are summary offences
- consuming intoxicating liquor (alcohol) while driving, fare evasion on public transport, and failing to
display ‘P plates’ when driving on a probationary driver licence
what is Culpable driving causing death
Culpable driving causing death is one of a number of indictable (serious) driving offences (with others including dangerous driving causing death and dangerous driving causing serious injury)
culpable driving causing death SANCTION
max 20 years, $460 000
18+ must be imprisoned
the following affect sentence:
The nature and gravity of the offence
The offender’s conduct after committing the offence
The impact of the victim’s death
The offender’s circumstances
Guilty plea
Elements of culpable driving causing death
the accused was the driver of a motor vehicle
the accused’s driving was culpable
- ‘Culpability’ refers to the responsibility for a fault or wrongful action (or inaction).
for instance…
driving negligently
e.g driving while fatigued, knowing that there was a risk of falling asleep
driving recklessly
(e.g. driving at high speeds in bad weather)
driving under the influence of alcohol or a drug
- that is, driving in a condition where the consumption of alcohol or drugs makes the accused incapable of properly controlling the vehicle.
the accused’s culpable driving caused the death of another person
Defences to culpable driving causing death
the accused may try to argue that one of these elements is missing. For example, the accused may argue that:
they were not driving the vehicle
their driving was not culpable (e.g. the motor vehicle collision and resulting death were not caused by their negligence, recklessness, or the influence of alcohol or drugs, but by unexpected and unpredictable mechanical failure or poor environmental or road conditions).
presumption of innocence
innocent until proven guilty beyond reasonable doubt
burden and standard of proof
burden - who has the ‘burden’ of bringing evidence to the court to prove the accused’s guilt
standard - the standard of which the proof is sufficient that the accused is guilty beyond reasonable doubt
elements of a crime
actus reus - physical act
men rea - mental element/intent
age of criminal responsibility
doli incapax - incapable of committing crimes with criminal intent
below 10 - cannot be charged
10-13, can be charged if it can be proven that they knew their actions were wrong at the time
14+, can be charged
culpable driving statistic
From 1 July 2016 to 30 June 2021, the Sentencing Advisory Council reported that in relation to
culpable driving causing death:
* approximately 87 per cent of offenders were male
