Unit 1 AOS 2 - The Presumption of Innocence

Question 1

What is a strict liability offence?

Answer 1

Is an offence in which the mens rea, (guilty mind) does not exist, or does not have to be proven in relation to the actus reas (guilty act.)

Question 2

What is the age of discretion?

Answer 2

• 10 and under cannot commit a crime
• 10-14 have to be proven of intent
• 14 and above have full criminal responsibility

Question 3

What is the actus reas?

Answer 3

The guilty act, or the crime itself.

Question 4

What is the mens rea?

Answer 4

The guilty mind, or the intent a person had before a crime.

Question 5

What is the burden of proof?

Answer 5

Refers to the responsibility that lies with the prosecutor, or defendant who is bringing the case. It is the duty placed upon them to prove or disprove someone’s guilt or innocence, and it is not up to the accused to prove their innocence, but the prosecution must prove that their facts are correct.

Question 6

What is the standard of proof?

Answer 6

The standard of proof refers to the strength of evidence needed to prove a case. In a criminal case, the prosecutor must prove a case beyond reasonable doubt to the jurors. The standard of proof in civil disputes is the balance of probabilities

Question 7

What are the five types of crime?

Answer 7

• crime against the person (assault)
• crimes against property (stealing assault)
• crimes against the legal system (perjury/ contempt)
• cybercrime (bullying on the internet)
• hate crime (race, gender or sexual orientation of a person.)

Question 8

What are summary offences?

Answer 8

Are minor crimes that are heard in the magistrates court (traffic offences)

Question 9

What are indictable offences?

Answer 9

Are serious crimes that are tried before a judge and jury of 12, in either the county or supreme court.

Question 10

What are indictable offences heard summarily?

Answer 10

Are serious offences that can be heard in the magistrates court.

Question 11

Define culpable driving.

Answer 11

Is the act of causing the death of another person while driving a motor vehicle in a negligent or reckless manner or under the influence of alcohol or drugs.

Question 12

What are possible defences of culpable driving?

Answer 12

• the accused was not driving the car
• the driver was not culpable, (was not reckless, negligent or under the influence of drugs or alcohol.)(due to unexpected and unpredictable medical failure, poor environmental condition or road conditions.)
• duress (believed there was a serious threat that could only be stopped by culpably driving)
• sudden and extraordinary emergency
• involuntary actions (automatism, sleepwalking, concussion)

Question 13

What is the role of law in developing culpable driving?

Answer 13

The role of the courts in relation to culpable driving is to interpret the legislation created by the parliament (statute law) and apply it to the facts of the case before the court. Culpable driving is defined in a statute, and have been defined in a statute and has been refined through statutory interpretations. For example automatism is a common law defence that may be used in cases of culpable driving.

Question 14

What are two trends of culpable driving?

Answer 14

• Between April 2016 and March 2017, the number of deaths on our roads has decreased by 8.4% as a result of strict driving laws.
• Over the past five years, there has been no trend of increase or decrease in the number of culpable driving offences.

Question 15

What are the impacts of culpable driving?

Answer 15

Impacts on the offender
- medical treatment cost (if injured)
- guilt or shame in causing a death
- legal costs
Impacts on victims and their family
- loss of life
- disruption to family life
- trauma, grief, loss and related medical issues
Impacts on society
- costs of publicly funded medical treatment
- need for coronial services
- increased need for police, fire and emergency services

Question 16

What is dangerous driving causing death or serious injury?

Answer 16

Is the act of driving a motor vehicle at a speed or manner that is dangerous to the public having regard to all the circumstances of the case, which results in death or serious injury.

Question 17

What are the two elements of culpable driving?

Answer 17

• the accused was the driver of the motor vehicle

- the accused culpably caused a person’s death while driving a motor vehicle

Question 18

Explain the element of culpable driving where the accused was the driver of the motor vehicle

Answer 18

The accused must have had substantial control over the movement of the motor vehicle.

Question 19

Explain the element of culpable driving where the accused culpably caused a person’s death while driving a motor vehicle.

Answer 19

Regarding culpability, this means the accused person was driving the vehicle recklessly, negligently or under the influence of alcohol or drugs to the extent of being incapable of having proper control of the vehicle.

Question 20

Define murder

Answer 20

Murder is the unlawful killing of another person with maliceforethought

Question 21

What are the six elements of murder?

Answer 21

• the killing was unlawful
• the victim was a human being
• the accused was a person over the age of discretion
• the accused caused the victims death
• the accused was a person of sound mind
• there was maliceaforethought

Question 22

Explain the element of murder: the killing was unlawful

Answer 22

This establishes that the accused did not have a lawful reason for causing the other person’s death.

Question 23

Explain the element of murder: the victim was a human being

Answer 23

The victim must be a living person who has been born.

Question 24

Explain the element of murder: the accused was a person over the age of discretion

Answer 24

The accused must be at least 10 years of age. The law presumes that people under 10 are incapable of forming the intent to commit a crime.

Question 25

Explain the element of murder: the accused caused the victims death

Answer 25

The accused’s actions must have contributed significantly and substantially to a person’s death. This is known as causation.

Question 26

Explain the element of murder: the accused was a person of sound mind

Answer 26

This establishes that the accused knows right from wrong, and understands the nature of what they have done. The law presumes that a person of unsound mind cannot form the intent to commit a crime, or the mens rea

Question 27

Explain the element of murder: there was maliceaforethought

Answer 27

To prove murder, the prosecution must prove there was an intention to cause serious harm.

Question 28

What are the elements of maliceaforethought?

Answer 28

• an intention to kill
• an intention to inflict serious injury
• reckless indifference
• an intention to assault a person making a lawful arrest
• an unintentional killing in the process of commiting a violent crime

Question 29

What are the five possible defences of muder?

Answer 29

• self-defence
• mental impairment
• duress
• sudden and extraordinary emergency
• involuntary actions

Question 30

Explain the defence of murder: self-defence

Answer 30

If the action was necessary and reasonable, and the degree of force being used is the degree of force being faced.

Question 31

Explain the defence of murder: mental impairment

Answer 31

If the accused did not know or understand the nature of their actions

Question 32

Explain the defence of murder: duress

Answer 32

If someone is threatened and believes the threat is real, then the court can deem them under duress

Question 33

Explain the defence of murder: sudden and extraordinary emergency

Answer 33

The actions of the accused were the only reasonable way to deal with a sudden and extraordinary emergency. The actions were a reasonable response

Question 34

Explain the defence of murder: involuntary actions

Answer 34

There are three types of involuntary actions:
Automatism
- sleep-walking
- medical condition
- concussion
Intoxication
- self-induced = if it was reasonable for a non-intoxicated person
- non self-induced = if it was reasonable for an intoxicated person
Accident
- actions were without intention