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legal yr 10 > unit 2: criminal law > Flashcards

unit 2: criminal law Flashcards

1
Q

Crime

A

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

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2
Q
  1. nature of crimes:
    crime against person
A

robbery, murder and assault, homicide

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3
Q
  1. nature of crimes:
    crimes against property
A

theft, arson, burglary

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4
Q
  1. nature of crimes:
    drug offences
A

Drug dealing, drug use and drug possession

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5
Q
  1. nature of crimes:
    crimes against society
A

drink driving, speeding, drug offences

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6
Q
  1. nature of crimes:
    crimes against state
A

terrorism and treason

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7
Q

5 stakeholders in a criminal situation

A

victim
accused
suspect
witness
offender

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8
Q

Which law passed that addresses CRIMINAL matter

A

Crimes Act 1958 (Vic)= passed by the Victorian parliament and contains criminal offences against the state of Victoria.

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9
Q

arrest powers is…

A

a government agency (police) undertake action such as arrest with a warrant.
- police can use “reasonable” force when making an arrest.

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10
Q

arrest rights means…

A
  • police have no power to detain individuals unless arrest
  • individuals can refuse to attend station if aren’t arrested
  • individuals must be informed the reason for arrest
  • released unconditionally or receive bail within reasonable time= presumption of innocence until court trial
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11
Q

questioning powers means…

A

request a person’s name and address:
- have commited or about to commit any crime
- to assist in the investigation of INDICTABLE OFFENCE
[offence to refuse or give false name]

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12
Q

question rights means that…

A
  • they can remain silent ( still not guilty) but anything said or done gives evidence in court
  • can communicate with relative or friend to inform whereabouts
  • can communicate with legal practitioner = all can participate in legal system= equality
  • parent/guardian or ind. person must be present if person under 18y.o
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13
Q

statute law

A

also called Legislation or Act of Parliament.
Laws passed by parliament

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14
Q

common law

A

precedent (principles) made by judges about issues that arise in court.

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15
Q

suspect

A

a person who is thought to have committed a crime and is being investigated

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16
Q

accused

A

a person who is charged with a crime and must stand trial in a court of law to determine whether they are guilty or not guilty

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17
Q

offender

A

a person who has broken the law and been found guilty

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18
Q

victim

A

a person who has suffered harm sue to the actions or omissions of another

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19
Q

witness

A

a person who has seen or heard information relevant to an alleged crime

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20
Q

warrant

A

court document allowing a person (eg. police) to undetake an action (eg. arrest or search)

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21
Q

summons

A

court document instructing someone to attend a court hearing

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22
Q

doli incapax

A

a doctrine which assumes that children under the age of 14 are incapable of forming criminal intent.

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23
Q

Element 1:
Actus Reus

A

a guilty/ wrongful act
- refers to the physical performance of the criminal act. That is, the action take =n or omitted (not taken) by a person

eg. punching (assault), stabbing (death), driving away without paying (theft)

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24
Q

Elements of an Offence

A

refers to facts that must be proven to find accused person guilty

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25
Q

Element 2:
Mens Rea

A

a guilty mins
- refers to a persons awareness of the fact that their conduct is criminal= criminal intent

eg. done intentionally/ recklessly/ should have foreseen that harm may occur

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26
Q

summary offences

A
  • less serious or minor offences
  • found in Summay Offences Act 1966 (Vic)
  • only heard in Magistrates court and no jury

eg. unlicensed driving, minor assaults, offensive behaviour

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27
Q

indictable offences heard summarily

A

less serious than indictable offences that can be heard in Magistrates court.
=benefits the accused b/c sanctions are less severe and faster process

eg. theft less than 100k or criminal damage less than 100k

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28
Q

indictable offences

A

serious
- found in Crimes Act 1958 (Vic)
- heard in county or supreme court TD w a jury and judge

eg. rape, aggravated burglary, manslaughter and murder

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29
Q

strict liability offences

A

a type of offence which only requires the criminal action (actus reus) to be proven (eg. speeding)

-> not necessary for intention of speeding (mens rea)

30
Q

Principal Offender

A

A person who commits an offence - e.g. stabs the victim.
A person who intentionally directs, encourages or assists another to commit an indictable offence - e.g. restrains the victim while someone else stabs them.
A person who makes an agreement with another person to commit an indictable offence

31
Q

Accessory

A

A person who knowingly acts to prevent the arrest, prosecution, conviction or punishment of a principal offender after the indictable offence has been committed - e.g. destroys evidence, intimidates witnesses, bribes the judge

32
Q

Bail

A

After a person is charged, they are allowed to remain in the community while waiting for their trial. Bail can have conditions such as paying a surety (money), restricted access to certain people and places, not leaving Victoria

33
Q

Remand

A

After a person is charged, they are held in custody (prison) while waiting for their trail because they are a danger to society or a flight risk.

34
Q

Committal Hearing

A

The purpose of a committal hearing is to determine whether there is enough evidence against a person who has been charged with an indictable offence for the matter to proceed to trial, and for a conviction to be handed down, in one of the higher courts (County Court or Supreme Court - Trial Division). take place in Magistrates court

35
Q

Presumption of innocence

A

Anyone who has been charged with an offence to be innocent until proven guilty

-charged= alleged to have committed offence but not guilty

36
Q

role of court

A
  • interpret and apply the law
  • determine the verdict (guilty or not guilty)
  • impose a suitable penalty for those who have broken the law
37
Q

prosecution

A

Prosecution goes first in a court trial.
- Witness for the prosecution are called to the stand and examined (questioned) by the prosecution. They are then cross-examined by the defence and re-examined by the prosecution.

38
Q

Defence

A
39
Q

Burden of Proof

A

Burden= RESPONSIBILTY
In criminal cases, the prosecution (state) has the burden of providing the guilt of the accused. This means that the prosecutor must prove in court that the accused did in fact commit the crime.

40
Q

Standard of Proof

A

In order to establish the guilt of the accsued, the standard to which the prosecution must establish that the accused is guilty is beyond reasonable doubt

41
Q

Role of the Jury

A

to determine questions of the fact and to apply the law, as stated by judge, to those facts to reach a verdict (guilty/ not guilty).

42
Q

Strengths of Jury

A
  • decision-making process is spread out amongst 12 (criminal) or 6 (civil) ordinary citizens rather than concentrated w 1 judge
  • allows citizens to participate in/educated by legal system (ACCESS) and showcases transparency of legal system (community = acts as a check)
  • decisions less like to be appealed b/c balanced perspective and more accepted by parties (save judicial resources)
43
Q

Weaknesses of Jury

A

-random cross-section of community= ordinary citizens with no necessary training or understanding of law to make informed decisions
- can be biased and aren’t required to give reason for decision = X equality or fairness (this point depend b/c can also create fairness and give diverse perspective= multi-cultural soc.)
-trial process will be longer = X fairness and is against administrative inconvenience
- adds cost to court process-> jurors need to be paid

44
Q

In all criminal trials juries…

A
  • are only required for indictable offence cases in county or supreme court. =formal equality b/c creates equal opportunity for both parties
  • of 12 members who must reach a unanimous (all) decision on the verdict. some cases, judge may accept a majority (11/12)
45
Q

INELIGIBLE jurors

A
  • those who work in legal system (eg. lawyers, police, members of plmt.)
  • those physical disability that prevent from performing duties (eg. blindness or deafness)
  • those unable to communicate or understand English
46
Q

DISQUALIFIED jurors

A
  • those convicted of treason or an indictable offence and sentenced to a term of imprisonment of 3yrs or more
  • those sentences to more than three months in prison in past 10 years
  • those setenced to youth detention

b/c may have sympathy fir accused or hate towards justice sys. =negative r’ship and create potential bias

47
Q

EXCUSED jurors

A

(those in difficult circumstances)
- illness or poor health
- ‘advanced’ age
- living over 50km from Melbourne
- if jury service would cause substantial financial or other hardship to the person
- if jury service would cause substantial inconvenience to the public

48
Q

ELIGIBLE jurors

A
  • an Australian citizen on the electoral roll
  • over the age of 18
  • doesn’t have a reason to be excused, disqualified or ineligible
49
Q

Element 1 of Murder

A

The victim was a human being.

50
Q

Element 2 of Murder

A

The accused was over the age of discretion

51
Q

Element 3 of Murder

A

The killing was unlawful

52
Q

Element 4 of Murder

A

The accused was of sound mind

53
Q

Element 5 of Murder

A

The victim’s death was caused by the accused (actus reus/physical act)

54
Q

Element 6 of Murder

A

Malic aforethought existed (mens rea/guilty mind)

55
Q

Define element 1 of murder:
The victim was a human being

A

killing must be of a person alive during the offence.
-> X charged for animals, dead ppl, foetus

56
Q

Define element 2 of murder:
The accused was over the age of discretion/age of responsibility/age of criminal liability

A

above the age of 10
-those below 10 cannot be charged with a crime as they don’t have the maturity and mindset of an adult.
- if the child is of 10-13 years they maybe protected by the doctrine of “doli incapax”

therefore, makes 14 years and above the age of criminal responsibilty.

57
Q

Doli incapax

A

a doctrine which assumes that children under the age of 14 are incapable of forming criminal intent.

58
Q

Define element 3 of murder:
The killing was unlawful

A

unlawful: no one has the right to kill another person

when is it lawful?
- execution order (court)
- enforcement by law (police)
- battle situation (war= countries declared conflict on another)
- self-defence

59
Q

Define element 4 of murder:
The accused was of sound mind.

A
  • accused knows what they are doing was wrong = intention + aware of consequences
  • not suffering from any diagnosable conditions eg. PTSD, PSYCHIATRIC/MENTAL ILLNESSES, HALLUCINATIONS
60
Q

Define element 5 of murder:
The victim’s death was caused by the accused (actus reus/physical act)

A

The accused must have caused the death of the victim.
means- prosecution must prove there was a direct relationship between the action of the accused and the death of victim.

causation refers to action of the accused directly affecting the victim, there was no intervening act that led to victims death.
-> this can be tested with the “but for” test.

61
Q

example of “but for” test

scenario: A fires a gun and kills B and as a result B falls and dies.

A

causation= victim died as a result of gunshot

application: But for A shooting B, B would have not fallen and died.

62
Q

example of “but for” test

scenario: A punches B and as a result falls and dies.

A

causation= victim falls and dies as a result of a punch

application: But for A punching B, B would have not fallen and died.

63
Q

Define element 6 of murder:
Malice aforethought existed (mens rea/guilty mind)

A

INTENTION
_the accused must have possessed malice aforethought
- Malice aforethought= the intention to kill

  • proved by prosecution (3 categories)
  • intended to kill the victim
  • inflict serious bodily harm
  • acted with reckless indifference as to whether the act would kill or do serious physical harm (eg. firing a gun in a crowded room)
    -> here subjectively know the risk of death but ignores/disregards it.
64
Q

TRUE or FALSE:
Never blame the characteristics of the victim.

A

true, regardless of religious/cultural or psychiatric conditions

65
Q

Manslaughter

A

The unlawful killing of another without malice aforethought.
- maximum penalty of 20 years in jail.
- prosecutors prove that accuses acted with reckless indifference
- accused intended bodily harm/ acted recklessly and should’ve foreseen death or serious injury.

66
Q

Defences to murder:
Self Defence

A

valid defence if accused can prove that they believed it was reasonable and necessary to respond to an attack.
-> had necessary belief that their life or that another person was being threatened
- accused must prove that the response (response) was reasonable/proportionate reaction to the threat
-> if successful, accused will be acquitted of murder charge

67
Q

Mental Impairment

A

found in the Crimes (Mental Impairment and Unfitness To Be Tried) Act 1997 (Vic) (‘CMIA’)
- the accused/defence counsel, can argue that the accused wasn’t aware that their actions were wrong at the time of offence b/c had limited understanding of the nature and quality of their actions

68
Q

Theft

A

definition:
a person steals if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.
- indictable offence
- theft involving sum of under $100,000 or theft of a motor vehicle = heard summarily in Magistrates court (X indictable offence)

Nature of Crime: theft is a crime against property

Maximum Penalty: 10 years imprisonment

69
Q

Element 1 of Theft:

A

Dishonest

70
Q

Element 2 of Theft:

A

Appropriation (take for one’s own use) of property belonging to another

71
Q

Element 3 of Theft:

A

Intention to permanently deprive another of the property

legal yr 10 (3 decks)

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