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SPR 411 > SUBJECT 1: PART 1 > Flashcards

SUBJECT 1: PART 1 Flashcards

1
Q

What is substantive law?

A

Legal rules that determine the rights and duties of individuals and the state

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2
Q

What is substantive criminal law?

A

The prerequisites for criminal liability and elements of specific crimes

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3
Q

What is adjectival law?

A

Puts substantive criminal law into action. Criminal procedure rules are part of adjectival law

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4
Q

How do criminal procedure rules operate?

A

Operate together with common law and constitution

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5
Q

What does criminal procedure regulate?

A

Duties and powers of criminal courts and prosecutorial authority

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6
Q

What balance does criminal procedure aim to strike?

A

-Interest of society in effective criminal law enforcement +Interest of society in protection of rights of indiv suspect/charged/convicted/ sentenced for crime

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7
Q

What is the crime control model?

A

Repressing criminal conduct is most important function of criminal process

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8
Q

What is the due process model?

A

Primary function of criminal justice system is to ensure process of leading to a conviction is based on rules which ackn rights of an indiv at every stage (from pre-arrest >post-trial proceedings)

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9
Q

What are the 6 internal tensions in criminal procedure process?

A
  1. Rules cannot be created to only apply to criminals. System allow for innocent people in the system
    2.Freedom of indiv must’nt be sacrificed to increase crime control efficiency
    3.If state has absolute powers>crime is reduced at risk of tyranny. If Indiv rights are absolute >state can’t enforce crim law
    4.CP Rules are positive & negative> rules authorising police action and rules limiting police authority
    5.Balance accused rights and victim rights
    6.Permitting unconstitutionally obtained evidence gives way to state abuse of power in evidence-gathering process
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10
Q

What is main criticism of due process model?

A

Rights of victims of crime are neglected and failure to bring factually guilty to justice

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11
Q

What is the purpose of the due process model?

A

-Ensure rights of victim are vindicated and not lead to further injustice
-Limit state power to ensure justice for all parties involved in the process

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12
Q

What is the punitive model?

A

-Similar to crime control model> rights of victim of crime are worthy of respect

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13
Q

What is the non-punitive model?

A

Emphasises prevention of crime and restorative justice.

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14
Q

What is restorative model?

A

Process that aims to avoid criminal sanctions. Offender, victim and community are involved in process to restore position that existed prior to unlawful conduct

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15
Q

What is the role of the victim in the criminal process?

A

An ordinary witness called to testify on question of guilt/innocence

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16
Q

What are criticisms regarding the role of the victim in CP process?

A

-System is offender orientated and lacks victim support strategies
-Victims feel alienated from process

17
Q

Sexual Ofences

What is a victim impact statement?

A

Statement that lays out the extent to which the crime has affected the victims life

18
Q

Criminal Procedure Act

How does S144(3) of the CPA protect victims?

A

The charge must be accompanied with names+addresses of witnesses so that if a witness may be intimidated, their name and address must be witheld

19
Q

Criminal Procedure Act

How does S153(2) of the CPA protect victims?

A

If the court is of the view that a witness may be harmed>then the witness can testify behind closed doors

20
Q

Criminal Procedure Act

How does S158(3) of the CPA protect victims?

A

In certain instances a court may order a witness testify through CCTV> if prejudice may result to anyone if the witness testifies during proceedings

21
Q

Bill of Rights application in Criminal Procedure

What is the vertical application of BOR in CP?

A

Regulation of relationship between the state and community intersests.BoR rights are not absolute and can be limited

22
Q

Bill of Rights application in Criminal Procedure

What is the horizontal application of the BOR?

A

A BoR provision binds a natural/juristic person

23
Q

How are constitutional criminal procedures stated negatively?

A

They limit state powers by prohibiting state infringement on some fundamental rights

24
Q

What is justiciability?

A

A strong and independent Bench of judges

25
Q

Innocence

What is the presumption of innocence?

Suspect-Not yet Charged/ An Accused-Is Charged

A

Every person is regarded as innocent until convicted by a court of law

25
Q

Innocence

What is a conviction?

A

An objective /impartial pronouncement that a person is proved legally guilty by the state in a proper trial in accordance with legality principle

SPR 411 (8 decks)

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