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Legal Studies > Unit 2 > Flashcards

Unit 2 Flashcards

1
Q

What is a crime

A

A criminal offence committed against the state that inflicts harm on another individual and/or society

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2
Q

Types of law

A

Common law = decisions made by judges

Statute law = passed by parliament

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3
Q

Age of criminal liabilty

A

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

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4
Q

Types of offences

A

Summary offences = less serious -> mag courts (Summary Offences Act 1966)
Indictable offences = more serious -> county + supreme courts (Crimes Act 1958)

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5
Q

Stakeholders in a crime (S.W.A.V.O)

A 
Suspect
Witness
Accused
Victim
Offender
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6
Q

Elements of an offence

A

Actus Reus = the act of the crime itself

Mens Rea = the intent and awareness of committing the crime

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7
Q

What are strict liability offences

A

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

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8
Q

What is a principle offender

A 
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
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9
Q

What is an accessory

A 
Someone who knowingly impedes the:
Apprehension
Prosecution
Conviction
Punishment
... of the principle offender either before or after the crime's been committed
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10
Q

Criminal prosecution process

A

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

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11
Q

What is the presumption of innocence

A

The fact that anyone on trial is innocent until proven guilty

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12
Q

What is a committal hearing

A

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.

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13
Q

What is the role of the court

A

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

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14
Q

What is the adversial system

A

Where their are 2 sides providing evidence to prove their respective cases
= Prosecution and Defence

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15
Q

What is the burden and standard of proof

A

The burden of proof = held by the prosecution who has the burden of proving guily
Standard of proof = standard is beyond reasonable doubt

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16
Q

What is the trial process

A

1) Arraignment
2) Jury empanelment
3) Opening addresses
4) Evidence presented
5) Closing statements
6) Verdict
7) Plea hearing
8) Sentencing

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17
Q

What is the role of the jury

A

to determine questions of fact and to apply the law to those facts to reach a verdict

18
Q

Categories for potential jurors

A

Ineligible
Disqualified
Excused
Eligible

19
Q

Strengths of legal system

A

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

20
Q

Weaknesses of legal system

A

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

21
Q

What is homicide

A

An alleged crime resulting in the death of a human being

22
Q

What is murder

A

when a person intentionally or recklessly kills another person

23
Q

Elements of murder

A

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

24
Q

What is manslaughter

A

someone killing someone unlawfully without intent

24
Q

2 defences to murder

A

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

25
Q

What is assault

A

The use of any force or threat to use force against a person that isn’t consented

26
Q

Types of assault and a brief description

A

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

27
Q

What is sexual assault

A

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

28
Q

Elements of sexual assault

A

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

29
Q

What is rape

A

Sexual penetration without consent governed by section 38 of the Crimes Act with a maximum penalty of 25 years

30
Q

The elements of rape

A

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

31
Q

What is consent

A

Defined as a free agreement

32
Q

What is the age of consent

A

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

33
Q

What are criminal sanctions

A

Penalties or other means of enforcement used to provide incentives for obedience with the law, or with legal rules and regulations

34
Q

Types of criminal sanctions

A

Fines, Community correction orders, Imprisonment

35
Q

Objectives of criminal sanctions (Jewish Doctors Do Rip Penises)

A

1) Just punishment
2) Deterrence
3) Denunciation
4) Rehabilitation
5) Protection

36
Q

The three arms of government

A

Parliament, Court, executive

37
Q

Sentencing legislation

A

Sentencing Act 1991
Children, Youth, Families Act 2005
Crimes Act 1914 (cth)

38
Q

What are the sentencing guidelines

A

Severity, deferred and reduced.

39
Q

Aggravating factors

A

Greatens the severity of the offence

examples - Use of explosive, serious offence, history of offending, malicious intent

40
Q

Mitigating factors

A

Lessens the severity of the offence

examples - Showing remorse, 1st offence, early guilty plea, minimal impact/harm caused by offending

Legal Studies (3 decks)

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