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Unit 1 & 2 Legal Studies > Unit 1 - Chapter 2 - Crime > Flashcards

Unit 1 - Chapter 2 - Crime Flashcards

0
Q

What is a crime?

A

A crime can be described as an act or omission that is against an existing law which is harmful to an individual or society as a whole and punishable by law.

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1
Q

Definition of crime break down. (3 factors of definition)

A

. A crime can be described as an act or omission that is:

  1. against an existing law
  2. harmful to an individual or society as a whole
  3. and punishable by law
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2
Q

Why do we need criminal law?

A

. Criminal law is used to clarify types of behaviour deemed criminal and unacceptable by society
. it also provides a range of punishments that fit various crimes which in turn also deters people from committing a crime which would harm individuals and society as a whole
. it therefore keeps society functioning for without it there would be chaos and people wouldn’t feel safe as anyone could do anything without punishment

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3
Q

What are the 3 factors incorporated in the definition of a crime.

A

. against an existing law
. harmful to an individual or society
. punishable by law

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4
Q

Explain the elements of crime.

A

In order for a crime to take place and to be proven, the alleged must be proven to have BOTH a guilty act and guilty mind.

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5
Q

Explain guilty act and guilty mind.

A

. Guilty act . guilty mind (or intention)
. actus reus . mens rea
. eg. hit someone in . didn’t intend to kill,
self defence and the however intended to
person dies harm
. no act = no crime . no intention = no crime

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6
Q

What are the different types of crime?

A

. summary offences
. indictable offences
. indictable offences heard summarily

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7
Q

Explain summary offences.

A

. minor criminal offences
. heard in magistrates court
. eg. speeding and jaywalking

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8
Q

Explain indictable offences.

A

. serious criminal offences
. heard in county or supreme courts
. can be heard before a judge and jury
. eg. murder, manslaughter, rape

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9
Q

Explain indictable offences heard summarily.

A

. serious criminal offences
. magistrates court
. heard as if they were summary offences
. everything’s proven

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10
Q

What are principles of criminal liability?

A 
. burden of proof
. standard of proof
. presumption of innocence
. age of criminal responsibility
. participants in crime
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11
Q

Explain the following principle of criminal liability: burden of proof.

A

. As the accused is presumed innocent until proven guilty,
. the onus (burden/responsibility) lies with the prosecution (DPP) to prove a crime was committed and therefore to prove the elements of a crime exist.
. However there are exceptions in the cases of strict liability crimes and the reversal of the onus of proof

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12
Q

Explain why strict liability crimes are an exception to the burden of proof.

A

. instead or having to prove both elements of crime the intention does no have to be proven for the accused to be found guilty.
. strict liability crimes include traffic offences and serving liquor under-age persons.

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13
Q

What is the DPP?

A

. The Director of Public Prosecutions
. independent statutory officer appointed by the governor-in-council to conduct criminal prosecutions on behalf of the state

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14
Q

Who can carry out prosecutions

A

. DPP - county court, supreme court and high court
. Victoria Police - magistrates
. Corrections Victoria
. The Department of Primary Industry
. Local Councils
. VicRoads
. Victorian WorkCover Authority (WorkSafe)

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15
Q

Explain why the reversal of the onus of proof is an exception to the burden of proof.

A

. happens when the accused has to prove that he or she did not commit the crime
. guilty until proven innocent
. eg. anyone carrying a knife or other controlled weapon without excuse in a police-designated public area (such as a train station) may have to prove that they did not intend to use the knife as a weapon

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16
Q

Explain the following principle of criminal liability: Standard of Proof

A

. The extent to which a crime must be proven is beyond reasonable doubt
. ‘reasonable’ implies what an average person would think
. magistrates court - the magistrate decides guilt or innocence
. county or supreme court - the jury decides guilt or innocence, judge decides sentence

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17
Q

Explain the following principle of criminal liability: Presumption of innocence

A

. a person is presumed innocent until they can be proven guilty by the prosecution
. this protects individuals from being wrongly arrested and treated as if they are guilty and is consistent with the rules of natural justice

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18
Q

Explain the following principle of criminal liability: Age of criminal responsibility.

A

. under the age of 10 a child is assumed not to have the ability to form a guilty mind (or intention), therefore a child less than 10 years cannot be charged with committing a crime.
. between the ages of 10-14, if it can be shown that the individual had the ability to form a guilty mind this principle doli incapax can be overturned

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19
Q

Explain the following principle of criminal liability: Participants in crime.

A

Anyone who aids, abets, counsels or organises an indictable or a summary offence is to be treated as if he or she was the main offender.

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20
Q

Explain the rules of natural justice.

A

Under the rules of natural justice, everyone is given a reasonable opportunity to put forward their case and be heard by an unbiased, independent decision-maker.

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21
Q

What is doli incapax?

A

This is the principle which states that a child between the ages of 10-14 also is incapable of forming a guilty mind and therefore did not know that his or her criminal conduct was wrong unless the contrary is proven.

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22
Q

What is an accessory to a crime?

A

. any person who knowingly obstructs the apprehension, prosecution, conviction or punishment of the main offender of a crime,
. even though they believe the person is guilty of the offence or some other serious criminal offence
. (this is provided the crimes punishment is a sentence of more than 5 years)

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23
Q

With reference to the participants in crime what are some offences?

A 
........ to commit a crime
. encourage a person
. assist a person 
. give advice to a person
. organise the commission of a crime
. knowingly conceal information about a crime
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24
Q

What are crime against the person and related offences?

A

Offences include: murder, manslaughter, culpable driving, rape, assault and kidnapping.

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25
Q

What is homicide?

A

Homicide is the killing of a person. Murder, manslaughter, defensive homicide, infanticide and child homicide are unlawful homicides.

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26
Q

What is murder?

A

Murder is the unlawful killing of another person with malice afterthought, by a person who is of the age of discretion, being 10 years and over along with having a sound mind.
. For a person to be found guilty of murder the prosecution must prove the elements of murder

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27
Q

What are the elements of murder?

A 
. the killing was unlawful
. the accused was a person over the age of discretion
. the victim was a human being
. the accused was a person of sound mind
. the accused caused the victim's death
. malice afterthought existed
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28
Q

Explain the following element of murder: The killing was unlawful.

A

. the accused did not have a lawful reason for causing another person’s death
. this distinguishes murder from lawful killing

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29
Q

What are examples of lawful killing?

A

. the death penalty in countries where capital punishment is legal,
. a soldier killing an enemy soldier in battle
. or a person acting in self-defence and a court considers such actions as reasonable

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30
Q

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

A

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

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31
Q

Explain the following element of murder: The victim was a human being.

A

the victim must be a human being, not an animal

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32
Q

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

A

The accused’s actions must be voluntary, conscious and deliberate. A person who has a mental disability may not be of sound mind.

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33
Q

Explain the following element of murder: The accused caused the victims death.

A

The accused’s actions must contribute significantly and substantially to a person’s death. This is often left to the jury to decide. There must be a direct casual link between the accused’s actions and the death of the victim.

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34
Q

Explain the following element of murder: Malice afterthought existed.

A

Malice afterthought is the intention to commit the crime (a guilty mind or mens rea). For malice afterthought to exist, the accused must have acted voluntarily and have one of the four states of mind.

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35
Q

What are the 4 states of mind in malice afterthought?

A

. an intention to kill
. an intention to inflict serious injury
. reckless indifference
. an intention to assault a person who was trying to make a lawful arrest, which resulted in that persons death

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36
Q

Explain the following malice afterthought state of mind: an intention to kill

A

The accused intended to kill a person (not necessarily the deceased).

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37
Q

Explain the following malice afterthought state of mind: an intention to inflict serious injury

A

The accused intended to inflict serious injury, but kt resulted in death.

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38
Q

Explain the following malice afterthought state of mind: reckless indifference

A

. When the accused knows its likely that their actions will either cause death or serious injury to another person.
. Eg. pushing another person out of a window in a high-rise building or discharging a firearm into a crowd are both highly likely to cause really serious injury or death.

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39
Q

Explain the following malice afterthought state of mind: an intention to assault a person who was tying to make a lawful arrest, which resulted in that person’s death.

A

. eg. if a prisoner was trying to escape from prison and a warden was trying to stop the,, and in the process the escapee caused the death of the warder, then malice afterthought would exist.

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40
Q

Explain the circumstance of unintentional killing in the process of committing a violent crime.

A

When a person has committed a violent crime (punishable by imprisonment of 10 years or more) and they happened to kill someone but didn’t have intention to do so they are still liable to be convicted of murder, as if they had killed the person intentionally.

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41
Q

Explain causation.

A

. there must be an casual/unbroken link between the accused’s actions and the death of the victim.
. If something intervenes to break the link the accused may not be found guilty but could be charged with for example assault
. The actions of the accused don’t need to be the sole cause of death for it to be murder, however their actions must contribute significantly to the death

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42
Q

Explain taking your victim as you find them.

A

. If the victim dies as a result of an injury inflicted by the offender because of an unexpected vulnerability, the casual link is not broken by the vulnerability.
. The offender will be seen to have caused the death of the victim and therefore be liable for the charge of murder or manslaughter.

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43
Q

What is attempted murder?

A

Attempted murder is when a person
. intended to commit murder
. believed that the murder was to take place
. and were more than merely prepared to commit murder whilst knowing they would be immediately, and not remotely, connected to the murder
but their plans fail.
The maximum penalty for attempted murder is 25 years

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44
Q

Explain how a survivor of a suicide pact who kills deceased party is guilty of manslaughter.

A

If two or more people enter into a suicide pact, and one person dies but another doesn’t, the accused, being the survivor, can be found guilty of manslaughter and not murder. This can only be the case if the court is satisfied on a balance of probabilities that the act was done as part of a suicide pact.

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45
Q

What is conspiracy to murder?

A

When a person agrees with 1 or more people to carry out murder (or any other offence). To be guilty of a conspiracy offence the accused must have every intention of committing the offence.

46
Q

What is Manslaughter?

A

Manslaughter is the result of criminal negligence or an unlawful dangerous act which leads to someones death. These factors mean the accused either fell below the expected standard of care or failed to deduce the danger in a circumstance which lead to the victims death.
. The maximum penalty for manslaughter is 20 years in prison

47
Q

Explain criminal negligence.

A

The accused owes the victim a duty of care, however when the accused’s actions (or inactions) in a situation result in a persons death it means they have fallen below the expected standard of care that any reasonable person would exercise.
. eg. a parent neglects to get medical treatment for a child when a reasonable person could have foreseen that without treatment the child was likely to die

48
Q

Explain unlawful and dangerous acts.

A

When the dangerous and unlawful actions of the accused cause someones death but any reasonable person in the same circumstances would see it was highly likely that these actions could seriously injure or even kill another person.
. eg. a person throws a brick at a passing car to scare the driver but it ends up killing the occupant (even though the offender didn’t mean do serious harm, a reasonable person would assume that such action could be dangerous)

49
Q

How can you be found guilty of manslaughter due to unlawful and dangerous acts?

A

It must be proven beyond reasonable doubt that:

. the physical act that killed the victim was intentional and not accidental (there is no need to show that the accused intended to do harm)
. the act was unlawful, this generally means the act must be a crime and committed without lawful excuse
. the act was dangerous, meaning a reasonable person would have realised that the act was likely to cause a serious injury or death
. the accused did not act in self defence

50
Q

What is defensive homicide? NOTE: this changed at the end of last year

A

If the accused thought he or she was acting in self-defence, meaning they believe their actions were necessary to protect themselves or another person from the threat of death or serious injury, but the court found the beliefs or actions of the accused were unreasonable, the accused is then charged with defensive homicide.
. The maximum penalty for defensive homicide is 20 years imprisonment

51
Q

What is infanticide?

A

Infanticide is defined as the killing of a child under 2 years of age by their mother, which under normal circumstances is considered murder (because there is mens rea and actus reus), but in this case it isn’t. This is due to the fact that the mother suffered a mental condition caused by the effects of that child’s birth.
. The maximum penalty for infanticide is 5 years in prison

52
Q

What is child homicide?

A

The killing of a child who is under the age of 6 years. In normal circumstances it would usually be called manslaughter but due to the child being under 6 years old the offence is then classified as child homicide.
. The maximum penalty is 20 years in prison

53
Q

Explain defences to homicide.

A

The accused, or their legal team, may not necessarily specify a particular defence to a crime, but will attempt to show the flaws in the case for the prosecution. In doing this the accused will hope to make it difficult for the prosecution to probe that they’re guilty.

54
Q

What are the defences to homicide?

A 
. self defence and defensive homicide (abolished) 
. duress
. sudden or extraordinary emergency
. mental impairment
. automatism
. intoxication 
. accident
55
Q

What are some driving offences causing death or serious injury?

A

. culpable driving causing death
. dangerous driving causing death
. dangerous driving causing serious injury

56
Q

Describe culpable driving causing death.

A

A person can be found guilty of culpable driving causing death if that person was responsible for the death of another road user while driving a motor vehicle.

The prosecution must prove that the driver was doing one of the following:
. driving recklessly,
. driving negligently
. or driving under the influence of alcohol or a drug to the extent of being incapable of properly controlling the vehicle

57
Q

Explain what driving recklessly means.

A

. Consciously and unjustifiably disregarding a substantial risk that the death of another person
. or the infliction of grievous bodily harm on another person could take place due to their actions.

58
Q

Explain what driving negligently means.

A

Doing something risky such as driving whilst fatigued.

59
Q

Explain driving under the influence of alcohol or a drug to the extent of being incapable of properly controlling the vehicle.

A

Self explanatory

. maximum penalty is 20 years in prison

60
Q

Describe dangerous driving causing death.

A

. A person who drives a motor a vehicle at a speed or in a manner that is dangerous to the public and thereby causes the death of another person is guilty of an indictable offence.
. A person cam be found not guilty of culpable driving but guilty of the lesser offence of dangerous driving causing death.
. The maximum penalty for dangerous driving causing death is 10 years imprisonment.

61
Q

Describe dangerous driving causing serious injury.

A

. In cases where serious injury occurs rather than death due to dangerous driving, the offender can be charged with dangerous driving causing serious injury.
. This has a maximum penalty of 5 years in prison.

62
Q

What is rape?

A

Rape is unwanted sexual penetration. This includes penetration of the vagina, mouth or anus and includes penetration with a penis, another part of the body or an object.

63
Q

Under section 38 of the Crimes Act 1958 (Vic) and person commits rape if:

A

. he or she intentionally sexually penetrates another person without the persons consent whilst knowing the person is not or might not be consenting, or not giving any thought as to whether the person is not or might not be consenting
. after sexual penetration he or she does not withdraw from the person who is not consenting on becoming aware that the person is not consenting or might not be consenting
. he or she (the offender) compels a person to sexually penetrate the offended or another person, irrespective of whether the person being sexually penetrated consents to the act

64
Q

What is the meaning of consent?

A

Consent means free agreement (saying ‘yes’).

65
Q

What are circumstances in which a person does not freely agree to an act?

A

when….
. the person submits because of force or the fear of force to that person or someone else
. the person submits because of the fear of harm of any type to that person or someone else
. the person submits because he or she is unlawfully detained
. the person is asleep, unconscious, or so affected by alcohol or another drug that they become incapable of freely agreeing
. the person is incapable of understanding the sexual nature of the act
. the person is mistaken about the sexual nature of the act or the identity of the offender
. the person mistakenly believes that the act is for medical or hygienic purposes

66
Q

What are defences to rape?

A

. In defence to a charge of rape, the accused might try to argue that consent was given
. or that he or she was unaware that the other person did not give consent. (The belief that the victim was consenting to the sexual act must be reasonable).

67
Q

Extra notes about rape.

A

. A person does not have to protest or physically resist, or sustain physical injury, to she that he or she dud not consent.
. It is also nor a defence to say that he or she had agreed to as sexual act with the person on an earlier occasion.

68
Q

Explain the judge’s directions to a jury during a rape trial.

A

where relevant, a judge must direct or explain to a jury that:
. if a victim does not say or do anything to indicate consent then that is enough to show the illegal sexual act took place without the victims agreement (silence does mean consent)
. COME PAGE 71

69
Q

What are the proposed changes to rape laws?

A

. that the maximum sentence for assault with intent to rape, and sexual intercourse with a child under 16, be raised from 10 to 15 years
. that two new offences be made (now done)
- child endangerment
- grooming if a child under 16 for sexual conduct

70
Q

What is sexual assault?

A

. Sexual assault is any sexual behaviour that makes people feel threatened intimidated, uncomfortable or frightened.
. Some sexual assaults are kore serious than others as they can range from sexual harassment to serious crimes such as rape.

71
Q

What is child pornography?

A

Child pornography is the depiction/description of a minor (or someone who appears to be a minor) engaging in sexual activity or in an indecent sexual manner. This can be through a film, photograph, publication or computer game.

Due to the fact that it is illegal to make or possess child pornography or to invite a minor (a person under 18), anyone who prints or otherwise produces child pornography is guilty of an offence, same goes to anyone who invites or causes a minor to make child pornography. (maximum penalty ranges from 5-10 years imprisonment with the possibility of being put on the sex offenders list)

72
Q

What are the maximum penalties for the different types of sexual assault?

A

. Rape - 25 years
. Child pornography - 5 to 10 years
. Sexual offences against a child under 16 - 5 to 25 years (depending on the situation)
. Indecent Assault - 10 years
. Procuring sexual penetration of a child under 16 - N/A

73
Q

Why is there discussion about proposed changes to sexting laws?

A

Because many teenagers are ending up on the sex offenders list which is inappropriate in most cases so many police completely disregard the punishment which is inappropriate too.

74
Q

What is assault?

A

It involves the direct or indirect application of force by a person to the body, clothing or equipment of another person. This is done without a lawful excuse and intentionally or recklessly and results in bodily injury, pain, discomfort, damage, insult or deprivation of liberty.

75
Q

What are examples of assault?

A

. general assault - 5 years in prison
. common assault - fine of 15 penalty units or 3 months in prison
. aggravated assault - fine of 25 penalty units or 6 months in prison

76
Q

What are penalty units?

A

They provide the monetary value of a fine. The value of a penalty unit in July 2013 was $144.36

77
Q

What are examples of other offences against the person?

A

. intentionally or recklessly causing injury
. intentionally or recklessly causing serious injury in circumstances of gross violence
. knowingly administering drugs to another person without their consent
. knowingly infecting someone with a very serious disease; eg. HIV
. threatening to kill or injure another person
. stalking another person (this includes cyber stalking)
. conduct endangering life of persons
. negligently causing serious injury
. setting traps to injure or kill another person (whether a trespasser or not)
. extortion by making demands on another with threat to kill or destroy property
. performing female genital mutilation on a child under 18

78
Q

Explain intentionally or recklessly causing serious injury.

A

It is an indictable offence and serious injury can include a combination of injuries.
. penalty for intentionally causing injury (not serious) is up to 10 years
. penalty for recklessly causing injury (not serious) is up to 5 years
. penalty for knowingly infecting another person with a very serious disease has a maximum penalty up to 25 years in prison

79
Q

Explain intentionally or recklessly causing serious injury in circumstances of gross violence.

A

A person must not without lawful excuse, intentionally or recklessly cause serious injury to another person in circumstances of gross violence.
. The maximum penalty for intentionally causing serious gross injury 20 years in prison and 15 years for recklessly

80
Q

Explain stalking.

A

Stalking includes:
. following the victim
. contacting the victim
. publishing material relating to the victim on the internet or other electronic communication
. causing an unauthorised computer function in the computer of the victim
. tracing the victims use of internet or other electronic communication
. entering or loitering outside the victims home, place of business or other places frequented by the victim
. interfering with property of the victim
. making threats to the victim
. using abusive or offensive words
. COME BACK

81
Q

What are the defences to assault?

A 
. lawful use of force
. self-defence 
. necessity
. intoxication
. and duress
82
Q

What is kidnapping?

A

Kidnapping is when someone detains another with the intention to demand payment or random for the release of the person or when they detain another with the intention of gaining any sort of advantage even if no threat or demand is made. The maximum penalty is 25 years in
prison.

83
Q

What is blackmailing?

A

Blackmail is unwarranted, menacing demands or threats with the intention of obtaining some personal gain or causing loss to another. The maximum penalty is 15 years in prison.

84
Q

What are crimes against property?

A 
. theft 
. robbery
. burglary 
. fraud
. computer crimes 
. destroying or damaging property
85
Q

What is theft?

A

Theft is the stealing of a persons property with no intention of returning the property, meaning its dishonest taking of a persons property. It has a maximum penalty of 10 years in prison whilst shoplifting can have the accused let off with a warning.

86
Q

What is shoplifting?

A

Shoplifting is the theft of items from a store which are valued under $600.

87
Q

What is robbery?

A

Robbery is also the dishonest taking of a persons property, however it has an added element, being the use of force. It involves using force or putting a person in fear of force before or during the act of stealing. Its maximum sentence is 15 years in prison.

88
Q

What is armed robbery?

A

Armed robbery is when someone is carrying a firearm or offensive weapon whilst committing robbery. It has a maximum penalty of 25 years in prison.

89
Q

What is burglary?

A

Burglary is when someone enters any building as trespasser with the intent to steal, assault a person, or damage the building or property. It has a maximum penalty of 10 years in prison. If a trespasser carries a firearm or offensive weapon, they can be found guilty of aggravated burglary which has a maximum penalty of 15 years.

90
Q

What is fraud?

A

Fraud is criminal deception done with the intended result of personal gain. It can split into a series of offences, this includes obtaining property by deception and obtaining financial advantage by deception, both of which have maximum penalties of 10 years in prison.

91
Q

What are computer crimes?

A

examples include
. unauthorised computer access, modification or impairment with intent to commit a serious offence - ma x5 years
. unauthorised modification of data to cause impairment - max 10 years
. unauthorised impairment of electronic communication - max 10 years
. possession of data with intent to commit a serious computer offence - max 3 years
. producing, supplying or obtaining data with intent to commit a serious computer offence - max 3 years
. unauthorised access to or modification of restricted data - max 2 years
. unauthorised impairment of data held in a computer disk, credit card or other device - max 2 years

92
Q

What is identity theft?

A

Identity theft is a crime which include the use or supply of identification information. This means it is also an offence to possess identification information or equipment used to make identification documents. (up to 3 years in prison for both)

93
Q

Explain the destroying or damaging of property?

A

It is illegal to intentionally destroy or threaten to destroy property belonging to another person without lawful excuse. It is also illegal for a person to destroy his or her own property for personal gain.

94
Q

What is arson?

A

Arson is the deliberate lighting or spreading of bush fires. Arson causing damage or destruction to property is 10 years in prison and arson causing death is 25 years in prison.

95
Q

What is graffiti?

A

Graffiti is the marking of property
. without expressing consent (2 years),
. possessing an implement for creating graffiti without lawful excuse on property of a transport company, in an adjacent public place or in a place where the person is trespassing (25 penalty units)
. possessing a graffiti implement with the intent to mark graffiti (25 penalty units)

96
Q

What are the defences to property crimes?

A 
. factual dispute
. lack of intent
. honest and reasonable mistake
. defence of impossibility
. mistaken identity
. duress
. intoxication
. necessity
. mental impairment
. bonafide claim of right
97
Q

Explain the following defence: factual dispute

A

The accused may claim that the facts put forward by the prosecution are wrong and that the prosecution does not have enough evidence to prove his or her guilt.

98
Q

Explain the following defence: lack of intent

A

To commit a crime is it essential that there is a guilty act (actus reus) and guilty mind (mens rea). An accused may try to establish as a deface that he or she did not have the intention to commit the crime (mens rea).

99
Q

Explain the following defence: honest and reasonable mistake

A

If the offender conducts himself or herself in a way to show that there was a genuine, honest, reasonable then this may he available as a defence. The criminal act would not have been committed with a guilty mind.

100
Q

Explain the following defence: defence of impossibility

A

This defence can be used when the accused can claim that it is not possible for him or her to have committed the crime because they were elsewhere at the time, for example another state.

101
Q

Explain the following defence: mistaken identity.

A

The accused can claim that there was a situation of mistaken identity, that he or she was not the person who is alleged to have committed the crime.

102
Q

Explain the following defence: duress.

A

This defence is used when the accused committed the crime because he or she was overwhelmed by another person and forced into committing the crime. The accused would have to show that an ordinary person would have also been overwhelmed in the same circumstances.

103
Q

Explain the following defence: intoxication.

A

This defence requires the accused to show that he or she was so intoxicated that he or she was unable to form the intention to commit the crime and that the intoxication was not voluntary.

104
Q

Explain the following defence: necessity.

A

This defence applies to cases where someone was so overwhelmed by a certain situation that they felt forced to break the law. However, there cannot be the situation where people can simply decide not to obey the law and apply their own set of values to situations when they arise. This defence does not apply to murder cases.

105
Q

Explain the following defence: mental impairment.

A

For this offence to be available to the accused, the accused must have been unable to appreciate the physical nature of what he or she were doing and the consequences of their behaviour.

106
Q

Explain the following defence: bona fide claim of right

A

If a person os charged with theft and related offences, he or she may be able to claim, by way of defence, a genuine belief that he or she had a bona fide claim of right to the money or property that is claimed to be stolen. This defence extends to a person who takes property on behalf of another person, or in collaboration with another person, who they believe has a bona fide claim of right to the property in question. For example, of you were given a piece of jewellery by a friend, you would assume that the friend rightfully owned the jewellery.

116
Q

Explain the following defence to homicide: defensive homicide (ABOLISHED)

A

If the person can prove that they acted in response to a perceived threat of serious harm, but the court finds this belief not to be reasonable, then the person will be guilty of defensive homicide.

116
Q

Explain the following defence to homicide: sudden or extraordinary emergency

A

A person will not be guilty of homicide if they reasonably believe that:
. there is a sudden or emergency situation
. their actions are the only reasonable way of dealing with the emergency situation
. their conduct is a reasonable response to the emergency situation. In murder cases, the emergency must involve a risk of death or extremely serious injury

116
Q

Explain the following defence to homicide: Automatism.

A

The accused must show that he or she was unable to form intention to commit the crime (a guilty mind).

It must be shown that the act was:
. involuntary - done by muscles without any control of the mind (such as a spasm or a reflex action)
OR
. done by a person who was not conscious of what they were doing - such as suffering from a concussion or sleepwalking

116
Q

Explain the following defence to homicide: Accident

A

. In cases where the accused is claiming the death was an accident, they are saying that they did not possess a guilty mind.
. If mens rea is proven to not exist, the accused cannot be found guilty of a crime and would be acquitted.

116
Q

Explain the following defence: lawful use of force

A

A person will not be found guilty of assault if it is shown that the force used was lawful. Eg. games, sports, contests and even surgery. The use of force must be either to protect another, to escape unlawful imprisonment, to prevent crime, to protect property, in making an arrest, with consent or reasonable under the circumstances in correction of a child.

116
Q

Explain the following defence: self-defence.

A

This is the defence used by an accused on trial who alleges that he or she was in fear of immediate attack and injury. For an acquittal to take place the accused must show that he or she believed on reasonable grounds that it was necessary in self-defence to do what they did.

Unit 1 & 2 Legal Studies (9 decks)

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