Unit 2 Flashcards
What is a crime
A criminal offence committed against the state that inflicts harm on another individual and/or society
Types of law
Common law = decisions made by judges
Statute law = passed by parliament
Age of criminal liabilty
If below 10, cannot be charged with a crime
Between 10-14, doctrine of doli incapax = incapable of intentionally committing crime (unless intent proven)
14+, can be charged
Types of offences
Summary offences = less serious -> mag courts (Summary Offences Act 1966)
Indictable offences = more serious -> county + supreme courts (Crimes Act 1958)
Stakeholders in a crime (S.W.A.V.O)
Suspect Witness Accused Victim Offender
Elements of an offence
Actus Reus = the act of the crime itself
Mens Rea = the intent and awareness of committing the crime
What are strict liability offences
They do not require both Actus Reus and Mens Rea to be proven to find an accused guilty. They only need the act to have occurred (Actus Reus) to charge the offender.
An example is speeding
What is a principle offender
Someone who committed the crime. People can commit the crime even if they don't take part physically. They are regarded as a principle offender if they: Aid Abet Counsel Organise
What is an accessory
Someone who knowingly impedes the: Apprehension Prosecution Conviction Punishment ... of the principle offender either before or after the crime's been committed
Criminal prosecution process
1) Investigation
2) If prosecuting, decide how serious the offence is
3) less serious offences dealt with in mag court, more serious (indictable offences) dealt with in county and supreme court
What is the presumption of innocence
The fact that anyone on trial is innocent until proven guilty
What is a committal hearing
It determines whether their is enough evidence against a person who has been charged with an indictable offence for the matter to proceed to trial.
What is the role of the court
1) to interpret and apply the law (statutory interpretation)
2) determine the verdict
3) impose a suitable penalty for those who have broken the law
What is the adversial system
Where their are 2 sides providing evidence to prove their respective cases
= Prosecution and Defence
What is the burden and standard of proof
The burden of proof = held by the prosecution who has the burden of proving guily
Standard of proof = standard is beyond reasonable doubt
What is the trial process
1) Arraignment
2) Jury empanelment
3) Opening addresses
4) Evidence presented
5) Closing statements
6) Verdict
7) Plea hearing
8) Sentencing
What is the role of the jury
to determine questions of fact and to apply the law to those facts to reach a verdict
Categories for potential jurors
Ineligible
Disqualified
Excused
Eligible
Strengths of legal system
Jury allows decision making process to be split amongst 12/6 ordinary citizens rather than just judge
Decisions made by jurors = less likely to be appealed and more accepted by parties as it ensures a more balanced perspective
Weaknesses of legal system
Jury = ordinary citizens with no training/understanding 2 make informed decisions
Jurors can be biased as they don’t have to provide a reason for their verdict
What is homicide
An alleged crime resulting in the death of a human being
What is murder
when a person intentionally or recklessly kills another person
Elements of murder
1) Accused must be a person
2) Victim must be a person
3) Person must be over the age of discretion
4) Killing must’ve been unlawful
5) Accused must have been of sound mind
6) Accused must have caused death of the victim
7) Accused must’ve possessed malice aforethought
What is manslaughter
someone killing someone unlawfully without intent
2 defences to murder
Self defence h/r need to prove necessity + reasonable nature of response
Mental impairment = not able to comprehend and not aware of actions -> not aware of consequences as a result of actions
What is assault
The use of any force or threat to use force against a person that isn’t consented
Types of assault and a brief description
Common assault = less serious -> without causing injury
Aggravated assault = Assault against children under 14 + women / and assaults including multiple people or weapons
Serious assault = indictable offences + assaulting emergency workers / police
Intentionally/recklessly causing injury = in circumstance of gross violence and reckless behaviour
Threats to kill or inflict serious harm = 10yrs for kill, 5yrs for serious harm
What is sexual assault
It involves the non-consensual sexual touching which falls short of sexual penetration governed by section 40 of the Crimes Act with a maximum penalty of 10 years
Elements of sexual assault
1) Accused intentionally touched complainant in alleged way
2) Touching was sexual
3) The complainant x consented to the touching
4) Accused did not reasonably believe complainant consented
What is rape
Sexual penetration without consent governed by section 38 of the Crimes Act with a maximum penalty of 25 years
The elements of rape
A intentionally sexually penetrating B; and
B does not consent to the penetration; and
A does not reasonably believe B consented to the penetration
-> needs both mens rea and actus reus
What is consent
Defined as a free agreement
What is the age of consent
In victoria it is 16+ except if they are in a position of power over you
12-16 can have consensual sex with someone within 2 years of their age
What are criminal sanctions
Penalties or other means of enforcement used to provide incentives for obedience with the law, or with legal rules and regulations
Types of criminal sanctions
Fines, Community correction orders, Imprisonment
Objectives of criminal sanctions (Jewish Doctors Do Rip Penises)
1) Just punishment
2) Deterrence
3) Denunciation
4) Rehabilitation
5) Protection
The three arms of government
Parliament, Court, executive
Sentencing legislation
Sentencing Act 1991
Children, Youth, Families Act 2005
Crimes Act 1914 (cth)
What are the sentencing guidelines
Severity, deferred and reduced.
Aggravating factors
Greatens the severity of the offence
examples - Use of explosive, serious offence, history of offending, malicious intent
Mitigating factors
Lessens the severity of the offence
examples - Showing remorse, 1st offence, early guilty plea, minimal impact/harm caused by offending
