Unit 1 - Chapter 2 - Crime Flashcards
What is a crime?
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.
Definition of crime break down. (3 factors of definition)
. A crime can be described as an act or omission that is:
- against an existing law
- harmful to an individual or society as a whole
- and punishable by law
Why do we need criminal law?
. 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
What are the 3 factors incorporated in the definition of a crime.
. against an existing law
. harmful to an individual or society
. punishable by law
Explain the elements of crime.
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.
Explain guilty act and guilty mind.
. 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
What are the different types of crime?
. summary offences
. indictable offences
. indictable offences heard summarily
Explain summary offences.
. minor criminal offences
. heard in magistrates court
. eg. speeding and jaywalking
Explain indictable offences.
. serious criminal offences
. heard in county or supreme courts
. can be heard before a judge and jury
. eg. murder, manslaughter, rape
Explain indictable offences heard summarily.
. serious criminal offences
. magistrates court
. heard as if they were summary offences
. everything’s proven
What are principles of criminal liability?
. burden of proof . standard of proof . presumption of innocence . age of criminal responsibility . participants in crime
Explain the following principle of criminal liability: burden of proof.
. 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
Explain why strict liability crimes are an exception to the burden of proof.
. 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.
What is the DPP?
. The Director of Public Prosecutions
. independent statutory officer appointed by the governor-in-council to conduct criminal prosecutions on behalf of the state
Who can carry out prosecutions
. 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)
Explain why the reversal of the onus of proof is an exception to the burden of proof.
. 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
Explain the following principle of criminal liability: Standard of Proof
. 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
Explain the following principle of criminal liability: Presumption of innocence
. 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
Explain the following principle of criminal liability: Age of criminal responsibility.
. 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
Explain the following principle of criminal liability: Participants in crime.
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.
Explain the rules of natural justice.
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.
What is doli incapax?
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.
What is an accessory to a crime?
. 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)
With reference to the participants in crime what are some offences?
........ 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
What are crime against the person and related offences?
Offences include: murder, manslaughter, culpable driving, rape, assault and kidnapping.
What is homicide?
Homicide is the killing of a person. Murder, manslaughter, defensive homicide, infanticide and child homicide are unlawful homicides.
What is murder?
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
What are the elements of murder?
. 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
Explain the following element of murder: The killing was unlawful.
. the accused did not have a lawful reason for causing another person’s death
. this distinguishes murder from lawful killing
What are examples of lawful killing?
. 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
Explain the following element of murder: The accused was a person over the age of discretion.
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.
Explain the following element of murder: The victim was a human being.
the victim must be a human being, not an animal
Explain the following element of murder: The accused was a person of sound mind.
The accused’s actions must be voluntary, conscious and deliberate. A person who has a mental disability may not be of sound mind.
Explain the following element of murder: The accused caused the victims death.
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.
Explain the following element of murder: Malice afterthought existed.
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.
What are the 4 states of mind in malice afterthought?
. 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
Explain the following malice afterthought state of mind: an intention to kill
The accused intended to kill a person (not necessarily the deceased).
Explain the following malice afterthought state of mind: an intention to inflict serious injury
The accused intended to inflict serious injury, but kt resulted in death.
Explain the following malice afterthought state of mind: reckless indifference
. 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.
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.
. 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.
Explain the circumstance of unintentional killing in the process of committing a violent crime.
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.
Explain causation.
. 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
Explain taking your victim as you find them.
. 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.
What is attempted murder?
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
Explain how a survivor of a suicide pact who kills deceased party is guilty of manslaughter.
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.