presumption of innocence Flashcards
Lesson one
What is a crime?
an act or omission that is:
1. Against an existing law
2. Harmful to an individual or society
3. Punishable by law
Lesson one
What is the purpose of criminal law?
to protect the society as a whole
Lesson one
How is the purpose of criminal law achieved?
Achieved through:
Est. of the law
Enforcement of the law
Deciding who is guilty through the courts
imposing sanction on offenders
Lesson one
How is the establishment of the law achieved?
The establishment of the law is achieved through statutes made by parliament and court decisions (common law & statuatory interpretation)
Lesson one:
How is the enforcement of the law achieved?
The enforcement of the law is achieved through Victorian police and other bodies given power to enforce criminal law
Lesson one
What is the aim of imposing sanctions?
To punish offenders and deter others from committing crime
Lesson one
What are the purposes of handing down criinal sanctions?
Punish fairly (retribution)
Deter offenders
Rehabilitate ofenders
Denunciation
Protect the community
Lesson one
What is retribution?
An act of revenge/ payback for the wrong committed; punishment is to meet the crime
Lesson one
What does deterence refer to?
To deter both the individual from reoffending (specific deterrence) and other people committing the same crime (general deterrence)
Lesson one
What is denunciation?
To denounce (disapprove) the offender’s behaviour
Lesson one
What does it mean to protect the community?
In order to protect the community, the offender will be removed or restricted to prevent future harm
Lesson one
What is meant by the presumption of innocence?
It is the notion that the accused is ‘innocent until proven guilty’
Lesson one
What is the burden of proof?
In criminal law, the burden (onus / responsibility) falls on the prosecution to prove the guilt of the acccused
Lesson one
What is the standard of proof?
The level to which the party with the burden of proof must prove its case
In criminal law, the standard of proof is beyond reasonable doubt
It is the responsibilty of the prosecution to prove the guilt of the accused beyond reasonable doubt
Lesson one
Define beyond reasonable doubt
There needs to be no other alternative, or any doubt in the mind of the jury, that the accused committed the offences w/ which they are charged
Lesson two
Define mens rea
The person’s state of mind when they were engaging in the actus reus (guilty mind)
= intentional, malicious, knowlingly, recklessly, negligently, wilfully
Lesson two
Define actus reus
The actions/ inactions in which a person needs to engage in/ not engage in, to be found guilty of an offence (guilty act)
Lesson two
Explain the age of criminal liability
Under 10: cannot be charged w/ a crime
10-14: principle of doli incapax applies
14 or older: can be charged w/ a crime
children are considered to not be able to form the necessary intent (mens rea) to commit a crime
Lesson two
Define the principle of doli incapax
A young person in thi age range (10-14) is incapable of forming the intent to commit a crime
Lesson two
What is the exception to the principle of doli incapax?
The young person (10-14) can be charged if the prosecution can prove that the child know that their actions were wrong at the time of the crime (police interviews, psychologists’ report, actions after the crime ect)
Lesson two
What does the burden of proof mean for the accused?
Means that the accused does not need to say anything in their defence. in addition, silence is not an admission of guilt. The concept upholds the presumption of innocence
Lesson two
Who are the prosecution in a criminal case?
Represents the crown (or state) in a criminal case
prosecution charges (officially accusses) the accused w/ the crime
Lesson two
Who are the accused / defendant in a criminal case?
The person who has been charged w/ the crime and is on trial
Lesson two
Who are the defence in a criminal case?
Legal counsel representing the accued person in a criminal case
Lesson two
What happens if a jury cannot come to a decision?
If the 12 people of the jury cannot come to a decision = ‘hung jury’, sunsequently there could be a retrial w/ a new jury, the prosecution will determine if it will proceed w/ a new trial.
Lesson two
What are the two verdicts that can be reached at the conclusion of a criminal trial?
Guilty (sanction) or not guilty (aquitted & free)
Lesson three
who is the principle offender?
A principle offender is either anyone who commits the crime or anyone who aids, abets, counsels, or organises a summary or an indictable offence is to be trated as if he or she was the main offender
Lesson three
What is a sumary offence?
A minor criminal offence heard before a magistrate.
Can preceed in the MC without the accused present.
Lesson three
What Acts of Parliament are summary offences outined in?
Summary Offences Act 1966 (Vic)
Road Safety Act 1986 (Vic)
Lesson three
Give examples of Summary Offences
offensive behaviour
drink-driving
Lesson Three
What are indictable offences heard summarily?
Serious offences heard before a magistrate alone.
The accused / defendant has the choice of having the matter heard in the CC or the Ms’C
The prosecution and the magistrate must also permit the permit the matter to be heard before a magistrate
Lesson Three
What are examples of indictable offences heard summarily?
Theft of property not exceeding $100,000
Minor burglary
Minor assualt
Lesson three
What are indictable offences?
The most serious criminal offences.
Outlined in the crimes act 1958 (Vic).
Require the accused / defendant be present in court
Lesson three
What are examples of indictable offences?
Murder
Manslaughter
Rape
Culpable driving
Armed robbery
Lesson three
Who is an accessory to a crime?
An accessory to crime is any person who knowlingly obstructs the apprehension, prosecution, conviction, or punishment of the main offender of a crime. provided the crime in one for which the sentence would be more than five years
Lesson three
What will an individual charged with a summary offence receive?
Recieve a ‘summons’, informing the accused / defendant when the case will be heard
Lesson three
What will an individual charged with an indictable offence initially experience?
A committal hearing in the Ms’C, determining if there is enough evidence for the matter to proceed to trial in either in the CC or SC
Lesson four
How can murder be classified?
By its nature and seriousness
Lesson four
What is the nature of murder?
Murder is classified as a crime against the person.
Murder is a form of homocide.
Lesson four
What is homocide?
Homocide is a broad term meaning unnlawful killing of another person. Homocide crimes inlcude murder, manslaughter and culpable driving causing death
Lesson four
What is the seriousness of murder?
Murder is an indictable offence. it is the most serious indictable offence. All murder cases are heard in the supreme court
Lesson four
How to convict an accused person
to find one guilty of a crime, each of the elements of the crime must be proven. including mens rea and actus reus elements.
Lesson four
Where is the definition of murder provided in law?
The definition for murder is NOT provided in the Crimes Act 1958 (Vic).
The definition of murder stems from common law.
All elements of murder must be proven in order to convict someone of murder.
Lesson four
What case does the common law definition of murder stem from?
Stems from R v Doherty (1887)
Lesson four
What is the common law definition of murder?
“…. a person of sound memory, at age of discretion, unlawfully kills any reasonable creature under the King’s peace, with malice aforethought either express or implied by the law … has committed murder.”
Lesson four
What are the elements of murder?
- The killing was unlawfuL (not resulting from self-defence)
- The accused was over the age of discretion (above the age of 10)
- The victim was a human being (you cannot be charged with murder for killing animals, a person who is already dead or a feotus)
- The accused was of sound mind (did not suffer from mental impairment e.g. PTSD, schizophrenia)
- The victim’s death was caused by the accused (Actus reus / physical act)
- Malice aforethought existed (Mens rea / Guilty mind)
Lesson four
What is causation?
Must be a causal link b/w actions of the accused and the death of the victim.
Lesson four
What is the ‘But for’ test?
Used to determine if the acts of the accused caused the death of the victim.
E.g. ‘But for the act of the accused, would the victim have died?’
Lesson four
What are intervening acts?
Refer to an act that intervened and caused the death of the victim, as opposed to the actionns of the accused.
- the defendant is not liable where there is an intervening act, or unconnected event, which causes the death.
- If the death was caused by combination of events, the defendant is still liable
Lesson four
What must the prosecution demonstrate of the accused to prove malice aforethought in court?
the accused either:
- Intended to kill
- Intended to inflict serious injury (grievous bodily harm), but it resulted in death
- Acted with reckless indifference as to whether their actions would cause death or inflict grievous bodily harm (e.g. firing a gun into a crowd / pushing someone out of a window)
Lesson five
What are the defences to murder?
-Self defence
- Self-defence (Battered partner syndrome)
- Mental impariment
- Duress
- Intoxication
- Sudden of extraordinary emergency
- Automatism
- Accident
- Consent
Lesson five
What must the accused prove to be aquitted of murder using self-defence?
That they:
- Had a belief that it was necessary to act to defend themselves OR another person from serious injury
- Had reasonable grounds for this belief
- The force used must be reasonable and proportinate to the force that attacker used
Lesson five
What is battered-spouse syndrome?
- Not a defence in its own right.
- Used to support a woman’s claim she killed her partner in self-defence
- “Repeatedly subjected to forecful physical / psychological behaviour … must go through battering cycle at least twice.”
- Often victim asleep or drunk
Lesson five
What is the defence mental impariment concerned with?
Concerned with the accused’s state of mind at the time of the offence.
Lesson five
What must the defence argue to establish that the accused was not of sound mind when the crime was committed?
- The accused did not know what they were doing (did not know the nature and quality of their actions)
and
- Did not know what they were doing was wrong
Lesson five
when acting under duress what does a person believe?
- A threat of harm will be carried out unless they commit a crime;
and - Commiting a crime is the only way to avoid the threatened harm;
and - Their conduct is reasonable response to the threat made
Lesson five
How will the accused not be found guilty under the defence of sudden or ectraordinary emergency?
not found guilty if they reasonably believed that:
- There was a sudden or extraordinary emergency situation
- Their actions were the only way of dealing with the situation
- Their conduct was a reasonable responnse to the emergency situation
Lesson five
what is the defence automatism?
involuntary actions not caused by disease of mind.
- The act was involuntary
- The individual was not conscious of their actions (e.g. sleepwalking or concussion)
Lesson five
What is the defence accident?
Something happens beyond a person’s control, or as an unexpected result of a lawful act.
- The accused did not possess mens rea
can lead to an acquittal
Lesson five
What is the defence consent?
only applies in certain circumstances.
e.g. certain sports, players accept that physical contact will occur and they accept a certain level of risk
Lesson seven
What is the impact of homocide on the victim & the victim’s family?
- Loss of life & disruption to family life
- Grief, anger, & emotional trauma
- Aggravated if family witnessess crime, discovers body ect
- Funeral costs
- Long-lasting trauma if lengthy case or police do not find the body
- Impact of media may cause further distress
- Lost income & labour in the household
- Loss of trust in law & legal system
Lesson seven
What is the impact of homocide on the offender & the offender’s family?
- Offender’s liberty will be taken away upon imprisonment
- Shame / guilt
- Legal costs
- Lost income for offender’s family upon the offender being imprisoned
- Negative experiences as a result of exposure to prison life
- Lost labour in the household
- Difficulty re-intergrating into society after incarceration
Lesson seven
What is the impact of homocide on society?
- Cost of medical treatment if death is not immediate
- Need for coronial inquiry
- Increased need for police, fire and emergency services
- Trauma to first responders upon arrival at the scene
- Loss of public confidence in the police / legal system
- Loss of workplace productivity
- May protest to demand a change in law
Lesson eleven
What is shoplifting?
Indictable offence
involves the theft of property from a retail store
Lesson eleven
When can a person accused of shoplifting be tried summarily?
if the property taken is valued under $100,000
Lesson eleven
When will a charge of aggravated burglary apply?
if burglary committed whilst a person is armed w/ a weapon
Lesson eleven
What is burglary?
An indictable offence involving the unlawfully entering a property as a trespasser with the intention:
- Commit theft
- Assault a person
- Damage the building or property
Lesson eleven
What is the maximum prison sentence for burglary?
Ten years
Lesson eleven
What is robbery?
An indictable offence where a person uses force, or puts any person in fear that he or she will use force, in the course of committing theft
Lesson eleven
When will a charge of armed robbery apply?
if the offender is using a firearm or offensive weapon while threatening the victim, then this increases the charge to armed robbery
Lesson eleven
What is the maximum prison sentence for robbery?
fifteen years
lesson seven
What is a victim impact statement?
written statement in the form of a statutory declaration that outlines the victim’f feelings, financial loss and physical injuries
Lesson eight
What is manslaughter?
A criminal offence where one person does not intend to kill or cause grievous bodily harm, but thuer reckless or negligent conduct results in the killing of another. The killing occurs without malice aforethought
Lesson eight
What is the maximum sentence for manslaughter?
twenty years imprisonment
Lesson eight
what is one thing that the accused must have done to have committed manslaughter?
- Performed an unreasonable act that was so dangerous a reasonable person would have foreseen the likelihood of serious injury or death (e.g. dropping bricks off an overpass on cars). the act was unlawful
- Intentionally caused bodily harm without intending to cause grievous bodily harm or death. the harm was more than trivial
- Was criminally negligent (failed to maintain the standard of care a reasonable person would have taken under the circumstances).
- Failed to act in a situation where the law had imposed a duty to act e.g. child neglect
Lesson nine
What is theft?
An indictable offence
Lesson nine
When can theft be heard summarily?
thefts involving a sum under $100,000 and theft of a motor vechile will generally be heard summarily, and will be heard in the MC
Lesson nine
what is the nature of theft?
theft is a crime against property
Lesson nine
what is the maximum penalty for theft?
ten years imprisonment
Lesson nine
what is the basic definition of theft?
Section 72 Crimes Act 1958 (Vic):
A person steals if he or she dishonestly appropriates property belong to another with the intention of permanently depriving the other of it
Lesson nine
What are the elements of theft?
- Dishonest
- Appropriation (take for one’s self use) of property belong to another
- Intention to permanently deprive another of the property
Lesson nine
What is element of theft, dishonesty mean?
- Knowing there is no legal right to take the property
Lesson nine
When is someone acting honestly?
Outlined by section 73 of the crimes act, when:
- Had a legal right or authorised by someone to take the property
- Would have had the owner’s consent in the circumstances
- Appropriates the property in the belief that the person to whom the property belonges cannot be discovered by taking reasonable steps
Lesson nine
What does the element of theft, appropriation of property belonging to another, mean?
- Took the property w/o the owner’s consent
- Must interfere w/, or assume one or more rights of the owner
- includes takes and keeping the item, using, devaluing, or trying to sell it or give it away
Lesson nine
What does the element of theft, intention to permanently deprive, mean?
The accused intends to assume the rights of the owner or not give the item back.
Lesson nine
What are examples of the element intention to permanently deprive
- A person receives property by mistake. The property should be returned, but the person keeps it instead
- A person takes the property with the intention of returning an equivalent (but not the o.g) item
- A person intially borrows property, but then keeps it for a long period of time or in circumstances that means they intend to deprivethe owner of the property
Lesson ten
what could be argued as a defence to theft?
- The accused never actually took possession of the property
- The property allegedly stolen was not ‘property’ in and of itself;
- The accused did not take the property w/ the intention of permanently depriving the victim
- The accused believed that they had a legal right ti the property
Lesson ten
What does the secific defence to theft, mental impairment, mean?
- accused did not know that they were doing was wrong at the time of the offence b/c limited undertsanding of the nature & quality of their actions
- accused did not know their conduct was wrong or could not reason, or think about, their conduct like an ordinary person
Lesson ten
What does the specific defence to theft, Duress, mean?
person had reasonable belief that:
- a threat of harm exists;
- the threat would be carried out unless the offence was committed
- committing the offence was the only reasonable way to avoid the threatened harm
- person’s conduct was a reasonable response
Lesson ten
What does the specific defence to theft, sudden or extraordinary emergency, mean?
- the actions of accused were the only reasonable way of dealing w/ situation
- actions were a reasonable response to the situation
Lesson ten
What is self-induced intoxication, and is it a good defence to theft?
court must compare conduct to a reasonable person who is not intoxicated. t/f, in the case of self-induced intoxication, the defence of intoxication is unlikely to be successful
Lesson ten
What is not self-induced intoxication?
(includes taking a prescription medication inthe correct way): condcut compared to a reasonable person intoxicated at the same level as the accused
Lesson ten
What is the specific defence to theft, automatism, mean?
person not be found guilty of crime if they committed the crime whilst:
- sleeping / sleepwalking
- suffering from concussion
- suffering an epileptic seizure
- suffering a side effect of a medical condition or proper use of medication
