U1 AOS2 - Crime Flashcards
what are the 4 purposes of criminal law?
- to protect individuals (e.g. laws that make murder, theft, rape, arson, and robberies crimes)
- to protect property (e.g. laws that make stealing and trespassing on other people’s property crimes)
- to protect society (e.g. laws that make drug offences and terrorism offences crimes)
- to promote justice (helps victims of crimes/their family/their friends to receive justice, to enforce the law, to deal with offenders)
what is the presumption of innocence?
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 a reasonable doubt
how is the presumption of innocence protected?
- the burden of proof rests on the prosecution, not the accused
- the standard of proof is beyond a reasonable doubt
- police officers are required to reasonably believe a person has committed a crime before arresting them
- a person who has been arrested has the right to apply for bail
- an accused has the right to legal representation in court
- an accused has the right to silence
- an accused’s previous convictions cannot be revealed in court until the sentencing process begins
- a person who has been convicted of a crime has the right to appeal a wrongful conviction
what are the elements of a crime?
actus reus and mens rea
what is actus reus?
- latin term meaning ‘guilty act’
- the physical element of a crime
- the prosecution must prove the person physically did the wrongful action/inaction
what is mens rea?
- latin term meaning ‘guilty mind’
- the mental element of a crime
- the prosecution must prove that the person knowingly/intentionally committed the wrongful action/inaction
what are strict liability crimes?
crimes that do not have a mental element (crimes where responsibility for committing a crime can be established without having to prove mens rea)
examples of strict liability crimes?
- consuming intoxicating liquor (alcohol) while driving
- fare evasion on public transport
- failing to display ‘p plates’ when driving on a probationary driver’s license
what can the accused argue as a defence when convicted of a strict liability crime?
that the crime was committed due to a reasonable mistake/honest mistake of fact
what is the definition of the age of criminal responsibility?
the minimum age a person must be to be charged with committing a crime
what is the reason for having the age of criminal responsibility?
because people under that age are considered to be too young to form mens rea
what is the age of criminal responsibility in Victoria?
10 years old (recently changed to 12 years old)
can a person between 10-13 years old be charged with a crime?
if the prosecution can prove that the child knew, at the time of the crime, that their actions were wrong
what is doli incapax?
- latin term meaning ‘incapable of evil’
- applies to children between 10-13 years old
- children between 10-13 can be considered doli incapax because they do not have the intellectual or moral capacity to know the difference between right and wrong
what factors decide whether a child between 10 and 13 is doli incapax?
age, upbringing, maturity, prior criminal history, what the child said and did before, during, and after committing the crime
what else is sometimes used to help determine whether a child is doli incapax or not?
medical and psychological assessments
can a person aged 14 years or older be considered criminally liable for their actions?
yes, and they can be charged with committing a crime
what is another name for the burden of proof?
the onus of proof
what is the burden of proof?
the responsibility to prove the allegations made in a case
who holds the burden of proof?
generally the person/party who initiates the case/brings the case to court (in a criminal case, the prosecution holds the burden of proof)
how does the burden of proof uphold the presumption of innocence?
because it requires the prosecution to prove the guilt of the accused rather than the accused having to prove their own innocence
in what circumstances can the burden of proof be reversed?
- in cases where drugs have been found on an accused’s property (the accused is assumed to be guilty of drug possession unless they can prove otherwise)
- in cases where the accused is pleading a certain defence (e.g. mental impairment) they have a responsibility to prove that defence
what is the standard of proof?
the strength of evidence needed to prove a legal case
what is the standard of proof in a criminal case?
the prosecution must prove the accused’s guilt beyond a reasonable doubt
what is a reasonable doubt?
it must be a sensible and realistic doubt, not one that is imaginary, fanciful, or an unrealistic possibility
can the standard of proof be on the balance of probabilities?
no, in a criminal case, the accused can’t be probably/likely guilty, it must be beyond a reasonable doubt
what happens if a person is deemed unfit to stand trial?
they cannot be tried for a criminal offence
what makes a person unfit to stand trial?
if, at the time of their trial, a person is unable to:
- understand the nature of the charges laid against them
- enter a plea
- follow the course of the trial
- instruct their lawyer
what is the difference between being unfit to stand trial and the defence of mental impairment?
mental impairment refers to your state of mind at the time of the offence, whereas being unfit to stand trial refers to your state of mind at the time of the trial
how can a person be deemed unfit to stand trial?
if there is a valid question about the fitness of an accused to stand trial, an investigation will be held before the court, and a jury will determine, on the balance of probabilities, whether or not the accused is unfit to stand trial
what are 3 ways that crimes can be classified?
- according to the social purpose/nature of the offence
- according to the type of offender/victim
- according to the seriousness of the offence
what organisation classifies crimes into 6 broad divisions/categories?
the crime statistics agency
what are the 6 divisions of crime and examples of each?
DIVISION A: crimes against the person (e.g. homicide, assault, stalking, etc.)
DIVISION B: property and deception offences (e.g. arson, property damage, burglary, etc.)
DIVISION C: drug offences (e.g. dealing drugs, trafficking drugs, possessing drugs, etc.)
DIVISION D: public order and security offences (e.g. weapons and explosives offences, terrorism offences, disorderly and offensive conduct, etc.)
DIVISION E: justice procedures offences (e.g. perjury (giving false evidence under oath), contempt of court, etc.)
DIVISION F: other offences (e.g. regulatory driving offences (driving under the influence, dangerous driving, etc.), transport regulation offences (travelling without a valid ticket, etc.) etc.)
what are the 5 ways crimes can be classified according to the type of offender or victim?
- cyber-crime
- hate crime
- organised crime
- juvenile crime
- white-collar crime
what are indictable offences?
serious crimes generally heard and determined in the higher courts (County Court and Supreme Courts) by a judge and a jury
what are summary offences?
minor crimes heard and determined in the Magistrate’s Court by a Magistrate alone
where are indictable offences found?
in the crimes act 1958 (vic)
where are summary offences found?
in the summary offences act 1966 (vic)
what is the maximum penalty for an indictable offence?
life imprisonment for a single charge
what is the maximum penalty for a summary offence?
2 years imprisonment for a single charge, or 5 years for multiple offences, or a fine under 240 penalty units
what are indictable offences heard summarily?
serious offences that are determined in the Magistrate’s Court by a magistrate, without a judge or jury present
what are the restrictions on whether an indictable offence can be heard summarily or not?
- if the indictable offence is punishable by more than 10 years’ imprisonmet or a fine greater than 1200 penalty units, then it cannot be heard summarily
- if the accused does not consent, then it cannot be heard summarily
what are some reasons why an accused may want to have their charges heard summarily?
- quicker + cheaper than a trial
- may receive a lesser punishment (maximum term of imprisonment imposed by a magistrate = 2 years for one offence, 5 years for multiple offences)
where are the indictable offences that can be heard summarily found?
in the criminal procedure act 2009 (vic)
what are examples of indictable offences?
homicide, culpable driving causing death, rape, etc.
what are examples of summary offences?
drink-driving, disorderly conduct, minor assaults, etc.
what are examples of indictable offences that can be heard summarily?
less serious assaults, causing criminal damage of less than $100,000, computer offences such as unauthorised access, etc.
who decides the verdict for a summary offence?
a magistrate
who decides the verdict for an indictable offence?
a jury
who decides the verdict for an indictable offence heard summarily?
a magistrate
what is the final hearing known as in a summary offence case?
a hearing
what is the final hearing known as in an indictable offence case?
a trial
what is the definition of murder?
the intentional, unlawful killing of another person with malice aforethought, by a person who is of the age of discretion and of sound mind
what is malice aforethought?
the intention to kill or cause grievous bodily harm to a person (mens rea)
what kind of offence is murder?
division a, indictable offence
what is the maximum penalty for murder?
a person who commits murder must be given a prison sentence, and the maximum is life imprisonment
what parts of murder are set out in common law?
the definition, the elements, and some of the defences to murder are set out in common law (they have been established through the years by the courts)
what parts of murder are set out in statute law?
the penalties for murder (established by parliament in legislation)
how can the law relating to murder be changed?
the victorian parliament can pass legislation at any time to change the law relating to murder
how many elements of murder are there?
6
what are the 6 elements of murder?
- 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 a person of sound mind
- there was malice aforethought
in what ways could a killing be lawful?
if the accused had legal justification/a lawful reason for causing the other person’s death
e.g. a soldier killing an enemy in battle, police acting in the course of their duties, a person acting under duress or in reasonable self-defence, etc.
is it murder to kill an unborn baby or an animal?
it may still be a crime, however, it is not murder, as an unborn baby or an animal are not human beings (living people who have been born)
what does it mean if the accused caused the victim’s death?
the accused’s actions contributed significantly and substantially to the victim’s death
what is causation?
the direct relationship between one event (event 1) and another event (event 2), where event 1 was the reason event 2 happened, and event 2 would not have happened by itself, without event 1
what must there be for the accused to cause the victim’s death?
a direct and unbroken causal link between the accused’s actions and the death of the victim
what can break the causal link?
if something unexpectedly intervenes (e.g. lightning striking a tree and it falling on an unconscious person who was knocked out, the person who knocked them out would not be guilty of murder as the lightning broke the causal link (without the lightning the knocked out person would not have died))
what does it mean for the accused to be of sound mind?
the accused must be capable of understanding that their actions were wrong, and therefore capable of forming the intention (mens rea) to commit a crime (at the time of offending)
what are possible defences to murder?
- self-defence
- mental impairment
- duress
- sudden or extra-ordinary emergency
- intoxication
- accident
- the absence of one of the elements of murder
when can self-defence be used as a defence to murder?
if the accused believed that their actions were necessary to protect themselves or another person from death or significant serious injury
when can mental impairment be used as a defence to murder?
if the accused did not know what they were doing at the time of the offence because they had little understanding of the nature and quality of their actions, and they did not know their conduct was wrong, or could not reason/think about their conduct like an ordinary person
when can duress be used as a defence to murder?
if a threat to inflict death or serious injury is placing the accused under duress, and the accused believed the threat would be carried out unless the offence was committed
when can duress not be raised as a defence to murder?
if the threat of harm comes from a person with whom the accused voluntarily associated to commit an act of violence
when can a sudden or extraordinary emergency be used as a defence to murder?
if the sudden or extraordinary emegency involves risk of death or serious injury, and the only reasonable way to deal with the situation was through murder
when can automatism be used as a defence to murder?
if the accused was in a state in which they had a total loss of control over their bodily movements (e.g. committing the crime whilst sleeping/sleepwalking, whilst suffering concussion, during an epileptic seizure, as a result of a medical condition/a side effect of the proper use of medication, etc.)
when can intoxication be used as a defence to murder?
if the accused acted involuntarily due to being in an intoxicated state as a result of consuming alcohol, taking drugs, or ingesting some other substance
how must the intoxication have been inflicted for it to be used as a defence to murder?
the intoxication must be involuntarily inflicted (e.g. due to fraud, a reasonable mistake, force, or the effects of the proper use of prescription/non-prescription medication)
when can intoxication not be used as a defence?
if it is self-induced
when can accident be used as a defence?
if the actions taken by the accused to commit the crime were involuntarily, unintentional, or reasonably unforseeable by an ordinary person
what is the murder rate?
the number of murders per 100,000 people aged 10 years and over
is there a general trend of the murder rate in australia between 2014 and 2019?
no, the rate has fluctuated, increasing and decreasing at different points
what has the australian murder rate fluctuated between from 2014-2019?
1.5 and 1.1
who is murder predominantly committed by?
men (92% of people convicted between 2013-2018 were male)
what is the most common age range for murderers?
25-44 (60% of people convicted between 2013-2018 were in this age range)
does the murder rate in victoria have a trend?
no, it fluctuates, sometimes increasing and sometimes decreasing
of all 26 offenders sentenced from 2017-2018, what happened to them?
all but one received an immediate term of imprisonment
is there a trend of the murder rate in the united states?
yes, there was an increase between 2013-2017
how much higher is the united states murder rate than the australian one?
5 times higher
who are the most common victims of murder in the united states?
men (77% of victims in 2018) and african americans (52% of the victims in 2018)
what is the most common murder weapon in australia vs the united states?
most common in the us = gun, used in approximately 72% of all murders
most common in australia = knife, used in approximately 65% of murders
why is there a difference in the most common murder weapon between australia and the us?
due to gun control laws in the us vs australia (more lenient in the us) and the strong gun culture in the us
what are the 3 groups of people who are impacted by murder?
- the victim and their family
- the community
- the offender and their family
what are some ways that murder impacts the victim and their family?
- loss of life for the victim
- disruption to family life
- trauma, grief and loss, and related medical issues (both immediate and long term)
- funeral costs
- loss of household income
- loss of trust in law and order, and community values
what are some ways that murder impacts the community?
- cost of publicly funded medical treatment (if death was not immediate)
- need for coronial services
- increased need for police, fire, and emergency services
- trauma to emergency services workers responding to the incident
- loss of workplace productivity
- potential loss of confidence in the legal system and community values
- fear to leave their houses/continue their lives normally, especially for those who live close to the murder site
what are some ways that murder impacts the offender and their family?
- guilt or shame in causing a death
- legal costs
- custodial sentence
- loss of household income if the offender is imprisoned
- dimishment ofthe family’s wellbeing and social standing
- negative influences as a result of exposure to prison
what is the definition of theft?
the act of dishonestly taking property belonging to another person without their consent, with the intention of permanently depriving that person of it
what kind of offence is theft?
division b, indictable, but can be heard summarily (if the amount or value of the property alleged to have been stolen des not amount to $100,000, or if it is a motor vehicle)
what parts of theft are set out in common law?
the definitions of the terms ‘appropriate’, ‘property’, and ‘permanently deprive’, and case-specific legal principles as diferent trends emerge in theft
what parts of theft are set out in statute law?
the main provisions relating to theft, including listing all theft-related offences, as well as creating new legislation in response to growing trends emerging in theft (e.g. the wage theft act 2020)
how many elements of theft are there?
3
what are the 3 elements of theft?
- the accused appropriated (took) property belonging to another
- the accused took the property with the intention of permanently depriving the other of it
- the accused acted dishonestly
what does it mean to take property belonging to another?
taking and assuming the rights to control and possess that property
what is property defined as?
money, physical (tangible) goods such as motor vehicles, jewellery, appliances, movile phones, furniture, intangible goods (electricity, etc.)
what does the prosecution have to/not have to establish when proving the first element of theft?
- they have to establish that someone other than the accused has property rights that were taken
- they dont have to establish who held those rights
in what situations can taking property temporarily still constitute theft?
- if it was the accused’s intention to treat the property as their own to dispose of, regardless of the owner’s rights
- if the accused borrowed the property for a period of time, and in circumstances that made it an outright taking or disposal
- if the accused takes property and returns it when it has been fundamentally changed (e.g. taking a concert ticket and returning it after the concert)
when is appropriation not dishonest?
- if the accused had a legal right to deprive the owner of the property
- if the owner would have consented to the appropriation if they had known of the appropriation and the circumstances surrounding it
- if the owner could not be discovered by taking reasonable steps (e.g. receiving property by mistake/finding property) (or if the recipient of the property believed this)
if property has been abandoned, and is then appropriated, is it theft?
no, under the law abandoned property no longer belongs to the person who has intentionally relinquished all ownership rights
if property has been lost, and is then appropriated, is it theft?
yes, because the owner still has ownership of it
what are some possible defences to theft?
- the absence of one of the elements of theft
- mental impairment
- duress
- sudden or extraordinary emergency
- automatism
- intoxication
- subjective belief
- inability to obtain the permission of the owner
- claim of right
what is subjective belief as a defence to theft?
the argument that the appropriation of the property was not dishonest because the accused believed they had a legal right to deprive the other person of the property
when can subjective belief be used as a defence to theft?
- if the accused’s belief is based on a genuine mistake of fact or a mistake of law that they had a legal claim of right over the property
- if the accused believed they would have had the owner’s consent if they knew the person was appropriating their property (e.g. if a car has been borrowed in the past and is borrowed again without the owner’s permission)
when can inability to obtain the permission of the owner be used as a defence to theft?
if the owner of the property cannot be discovered, even though reasonable steps were taken (e.g. notifying the police)
when can claim of right be used as a defence to theft?
- if the accused genuinely believes that they have a bona fide (authentic) claim of right to the property they are accused of stealing
- if a person takes property on behalf of another, or in collaboration with another, believing that the other person has a genuine claim of right to the property
what is the most commonly stolen item in australia?
motor vehicles
what is the trend in motor vehicle theft in australia?
its declining overall, as cars are becoming harder to steal due to technological advancements
however, older cars and motorcylce theft has remained constant, and is likely to increase
how many motor vehicles were stolen in australia in 2018?
53,564, equivalent of one every 10 minutes
what is the trend in theft in australia?
it is decreasing overall, slowly but surely
what is the trend in theft in victoria?
it is increasing
what has caused the increase in theft in victoria?
more self-service shopping = more shoplifting (2018-2019 = 16% rise in shoplifting)
which state has the highest rate of motor vehicle theft in australia?
victoria
what strategies are retailers using to prevent theft?
security cameras at self-service checkouts + employment of security guards
in the retail industry, which type of theft accounts for the majority of their loss of revenue?
customer theft/shoplifting
what is the trend in theft in south australia?
increasing (since 2018)
why does it appear that south australia has less theft than victoria in certain data?
because south australia has a much lower population
what 3 groups does theft impact?
- the victim and their family
- the community
- the offender and their family
how does theft impact the victim and their family?
- having belongings stolen is even more stressful when the items stolen are not recovered, and were of significance to the victim, e.g. a precious gift from a loved one
- insurance premiums payable by the victim can increase when items are not recovered and an insurance claim is made
how does theft impact the community?
- increased need for police officers
- loss of income for retailers, which leads to an increase in the price of goods for all consumers
- distress for people who have lost items that cannot be replaced
- loss of trust in law and order and community values
- wage theft reduces the trust of people in companies over their treatment of often vulnerable workers
how does theft impact the offender and their family?
- guilt or shame on the part of the offender
- legal costs
- compensation paid to the victim of the theft
- if the offender is imprisoned, the hardship of incarceration on the offender and their family
