Unit 3: Criminal Law Flashcards
1
Q
What is a crime
A
An act or omission that violates an existing law, causes harm to an individual or society as a whole and is punishable by the law
2
Q
Criminal law
A
An area of law that aims to protect society from harm by defining prohibited behaviors and outlining sanctions for those who participate in illegal conduct
3
Q
4 purposes of criminal law
A
- Set minimum standards of behavior
- Protection of society
- Deterrence of crime
- Protect justice and the rule of law
4
Q
Categories of crimes
A
Summary offences
Indictable offences
5
Q
Classes of crimes
A
Crimes against a person
Crimes against property
Cyber crime
Hate crime
Organised crime
White collar crime
6
Q
Accused
A
Individual(s) who are accused of allegedly committing the crime. Once found guilty or pleaded guilty - offenders
7
Q
Prosecution
A
Lawyers that work within Office of Public Prosecutions (OPP) that are responsible for bringing criminal offenders to justice. Instigate and present the criminal case and aim to prove the accused guilty
8
Q
Presumption of innocence
A
A right for all accused people to be presumed innocent until they are proven guilty beyond a reasonable doubt or the accused pleads guilty
9
Q
How is the presumption of innocence upheld
A
Reasonable belief
The right to apply for bail
Prior convictions cannot be revealed
Committal proceedings
10
Q
Burden of proof
A
Responsibility or onus of a party to prove the facts of a case
11
Q
Standard of proof
A
The level or extent to which the case must be proven. Relies on the strength of evidence
12
Q
Beyond a reasonable doubt
A
The judge or jury must be convinced there is no other logical, reasonable or alternative explanation other than the accused committing the crime
13
Q
The right to silence
A
An entitlement whereby the accused does not have to say or do anything when being charged with an offence - helps avoid self incrimination.
The Evidence Act 2008
14
Q
How is the right to silence achieved
A
- The accused has the right to remain silent
- No adverse/negative conclusions can be drawn from the fact that the accused has no answered any questions
- When an accused has chosen to answer some questions but not others ‘selective silence’ this cannot conclude guilt
15
Q
Importance of the right to silence
A
- Reinforces the burden of proof - it is not the responsibility of the accused to assist the prosecution
- Ensures any statements made in the heat of the moment are not incriminating
- Reduces power imbalance between the prosecution and the accused.
16
Q
The right to be tried without unreasonable delay
A
An accused is entitled to a guarantee that they will be tried without unreasonable delay
(without discrimination)
“reasonable” - length of delay, complexity of case, number of offences, reasons for delay (evidence)
17
Q
Why is the right to trial without unreasonable delay important
A
- Witness memories may fade –> unreliable evidence and unfair trial
- Stress for the accused, victims and their families
- Difficult to find 12 unbiased jurors if there’s lots of media attention
- Long delays increase legal costs for the accused - need to hire lawyer for whole delay period
18
Q
The right to trial by jury
A
The entitlement that, should an accused plead not guilty to an indictable offence, their guilt must be determined by a group of twelve peers
The Juries Act 2000 (VIC)
19
Q
Why is the right to a trial by a Jury important
A
- Provides an impartial and unbiased decision
- Likely result in the lawyers using clear, plain english which benefits the accused, victims and jury
- A unanimous or majorrity verdict is required - prevents incoocent people from being wrongfully accused
- Jury is more likely to represent a cross section of the community - diverse experience socio economic status age and ethnicity
20
Q
Principle offender
A
An individual who physically carries out the offence and or is directly involved in the enactment of the crime - before or during commission of the offence
21
Q
Can principal offenders get the maximum penalty
A
Yes
22
Q
Accessory
A
A person whose actions help the principal offender of a serious indictable offence avoid being apprehended prosecuted convicted or punished
Must believe or know the PO has committed the crime
AND
Must have acted in a way that helps PO avoid being apprehended, prosecuted, convicted or punished
23
Q
Max penalty for accessories
A
Accessory to murder - max 20yrs
Accessory to anything else - max 5 yrs or half max penalty for PO
24
Q
Elements of a crime
A
2 elements must be proven beyond a reasonable doubt: Actus reus and Mens rea
25
Actus reus
The physical element of a crime and the wrongful acts or omissions the offender undertook as part of a crime.
26
Mens rea
The mental element of a crime, the guilty mind or awareness of their criminal behavior and its consequences.
The accused must have had the intention of committing a crime or at least have a reckless or negligent state of mind when completing the actus reus
27
Strict liability offences
A type of offence that does not require the mens rea element of the crime to be satisfied.
It is enough for the person to have committed the actus reus to be found guilty.
Eg: speeding, serving underage alchohol at a licenced venue, running red lights.
28
Why do we have strict liability offences?
- To protect society from types of crimes where regardless of the offender's intent, their conduct is dangerous and must be discouraged
- The sanction is usually a fine, as there is no need to find the accused guilty
- Not needing to prove the mens rea makes it more efficient to find individuals guilty and punish them, thus more people can hopefully be deterred from repeating these offences.
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Murder
The unlawful and intentional killing of a human being by a person who acted voluntarily and without any lawful justification
Level 1 imprisonment - max natural life in prison
30
The elements of murder
1. The victim was a human being
2. The victim died
3. The accused is above the age of discretion
4. The accused's act was voluntary (actus reus)
5. The accused act caused the death of the victim
6. The accused acted with intention or recklessness (malice aforethought)
7. The killing was unlawful
31
Element 1
The victim was a human being.
Not an object, animal or unborn foetus
32
Element 2
The victim died.
The irreversible cessation of circulation of blood in the body or irreversible cessation of all function in the brain
33
Element 3
The accused must be over the age of discretion.
10 years or above in Vic. They can form criminal intent or understand the wrongfulness of their actions.
34
Element 4
The act was voluntary.
The accused must have had conscious and deliberate control of their bodily movements.
35
Element 5
Causation.
1. There was a direct, unbroken causal link between the accused actions and the death of the victim **and**
2. Substantial and operating 'but for' test (were there subsequent, intervening events?)
36
Intervening acts
There may be an intervening act that breaks the chain of causation. If proven, there is no longer a direct causal link between the accused actions and the death of the victim.
- An act of nature: must be spontaneous irregular and unpredictable (eg strike of lightning)
-Medical treatment must be overwhelmingly bad to be considered an intervening act
37
Element 6
Malice aforethought.
The accused must be proven to have caused the death of the victim with
1) the **specific intention** to kill or cause greivous bodily harm or 2) the knowledge that their act would **probably or likely** kill or cause GBH to the victim and they do it anyway with **reckless indifference** to the consequences.
This creates 2 kinds of murder: intentional and reckless murder
38
Intentional murder
Malice aforethought is established by the specific intent to kill or cause GBH
Did they act with a consious desire to kill or cause GBH?
Were they certain that death or GBH would occur?
39
Reckless murder
Malicle aforethought is established through the knowledge that the accused actions were likely to kill or cause GBH to the victim **and** they did it anyway with reckless indifference.
Did they realise that death or GBH would be a probable consequence?
Did they expect that death or GBH would be the likely result?
40
Proving malice aforethought
The subjective test:
an evaluation of the mindset of the accused, it examines evidence around the accused behavior (before, during and after crime), their age, and level of expertise around a topic.
41
Element 7
Killing must be unlawful (without legal justification).
Some exceptions to unlawful killings: solider killing enemy in battle, person acting under duress or in self defence (defence must be reasonable / equal (dont bring gun to knife fight))
42
Manslaughter
The unlawful killing of a person when deprived of the power of self control (eg. if provoked, there is less intent to kill) by provocation, or under circumstances amounting to diminished responsibility, or without intent to kill.
Level 2 imprisonment - 25 years max
43
Voluntary manslaughter
The accused intended to kill but there was a mitigating factor that lessens culpability (eg sudden drunken fight leads to killing)
44
Involuntary manslaughter
The accused exhibited negligent or unlawfully dangerous behavior which lead to the death, but lacked intentionality (eg. medical negligence through palpably and overwhelmingly bad medical care)
45
One punch manslaughter
When the accused intentionally strikes the vicitm in the head or neck causing the victims death or a subsequent injury that leads to their death.
46
Similarities between murder and manslaughter
- Both serious indictable offences which cause great harm to individuals and society by causing death
- Both are punishable by long imprisonment terms, murder max life, manslaughter max 25 yrs
- Both are homicide offences as they both involve killing a person (making them crimes against a person)
47
Differences between murder and manslaughter
- Murder requires malice aforethought (mens rea) whereas manslaughter does not always require intentionality (involuntary manslaughter)
- Manslaughter is less premeditated. It can include situations where the accused is provoked, therefore mitigating culpability
- Murder requires a higher degree of culpability as murderers are more responsible for the death of their victim (malice aforethought)
48
Set minimum standards of behavior
Regulate how people in society should act and establish consequences for those who fail to act
49
Protection of society
Reduce chaos and danger in society to protect individuals from harm (proactively and reactively)
50
Deterance of crime
Discourage offenders / individuals from reoffending / committing similar crimes – sanctions
51
Protect justice and the rule of law
Justice for victims (committers face consequences) and ensure law is applied to everyone equally
52
Summary offences category and legislation
- Considered less serious in nature
- Summary Offences Act 1966 (VIC)
53
Indictable offences category and legislation
- More serious in nature
- Victorian Crimes act 1958 (VIC)
54
Crimes against a person
Causes harm to another individual / poses threat of harm (homicide is a subsection of crimes against a person)
55
Crimes against property
Employ force / deceit to aquire, damage or demolish property
56
Cyber crimes
Aimed at computer systems eg viruses or involving computer networks eg email scams
57
Hate crime
Predjudice against gender, disablilty, religion, ethnicity (protected characteristics)
58
Organised crime
Systematic and premedicated by organised group
59
White collar crime
Non-violent and driven by financial motives eg fraud, embezzlement
60
How does reasonable belief uphold the presumption of innocence
Police must have reasonable belief that a person has committed a crime before arrests are made
61
How does the right to apply for bail uphold the presumption of innocence
Allows the accused to remain relatively free while they wait for their trial. If this was not the case the accused may be punished in remand for an offence they have not been proven to have committed.
62
How does prior convictions not being revealed uphold the presumption of innocence
If the accused has prior convictions they cannot be revealed to the jury, ensuring the jury cannot form any prejudice against the accused
63
How do committal proceedings uphold the presumption of innocence
Hearings that occur before the magistrate to determine whether the prosecutions has sufficent evidence to proceed to trial
64
Who has the burden of proof in criminal law
The prosecution (OPP)
65
What is the standard of proof in criminal law
Guilt must be proven beyond reasonable doubt
66
How is the right to silence safeguarded
- Accused can refuse to answer any questions
- Accused cannot be forced to present evidence
- Accused does not have to file a defence or call any witnesses
67
Exception to the right of silence
If the police believes that a person has committed a crime or can assist in the investigation of an indictable offence, the person must give their name and adress if asked
68
Physical impact of homicide on victims and their families
Several physical health problems including grief, insomnia, cardiac issues
69
Psychological impacts of homicide on victims' friends and families
Include PTSD, depression, severe stress
70
Social impacts of homicide on the victims' friends and family
The high stress associated with homicide may cause discomfort, strain and distancing in relationships for the victims family members as friends may feel they cannot provide adequate support
70
Economic impacts of homicide on the victims' friends and families
Where the victim is the primary financial provider for the family, the family may suffer the loss of the primary income
71
Political impacts of homicide on the victims' friends and family
Loss of trust in the criminal justice system.
Victim's family may not feel protected or that the sanction was not adequate or proportionate to the losses incurred.
This may result in calls for law reform
72
Economic impacts of homicide on society
Local communities with high rates of homicide can develop an unsafe reputation leading to a lack of people living in the area which can bring down house prices and a loss of income for businesses. Increased workload for law enforcement institutions is funded by tax payers.
73
Social impacts of homicide on society
Members within areas with high rates of murder can live in fear and worry for their safety, or develop hostility towards certain groups such as youth offenders or migrants
74
Legal impacts of homicide on society
Continuous instances of violent crimes may prompt the government to pass harsher laws. Murder also impacts the courts as they are already overburdened with immense delays, especially after Covid.
75
Health impacts of homicide on society
Members of society may witness homicides such as manslaughter, possibly causing PTSD, anxiety or other mental health challenges
76
Physical impacts of homicide on the offender
They may have sustained minor or severe injuries in the comission of the offence
77
Psychological impacts of homicide on the offender
The offender and their families may experience feelings of guilt, regret, remorse, shame and humiliation
78
Economic impacts of homicide on the offender
Likely to experience a loss of earnings if they are unable to work due to being imprisoned or in remand. There may be significant costs to defend themselves in court, including hiring legal representation
79
Social impacts of homicide on the offender
May face negative impacts on their social life as they are not able to regularly see their family and support networks.
80
Reasons for reform of one punch laws
To build on existing measures to address alcohol fuelled violence
81
Changes to the one punch laws
Set a mandatory minimum sanction (with non parole) of 10 years imprisonment.
Embedded the elements of one punch manslaughter into the Crimes Act 1958 (VIC), making the law clearer and more explicit. (Also made the law more known and stable)
82
Explaining [type of] impact of [homicide] on [party]
1) One ____ impact is.....
2) This means that....
3) A further consequence of this is.... / This, in turn, can.....
83
3 types of sanctions used in the Australian justice system
- Fines
- Community corrections orders
- Imprisonment
84
Fines
- A monetary penalty that is paid by the offender to the state
- Expressed in penalty units
- When imposing the fine, the court considers:
> The purpose the court wishes to achieve eg deter or punish
> The offender's financial position
- Court can order a fine be paid in instalment. If the offender fails to pay, court can issue an arrest warrant, allow further time to pay or order community service work instead
- Fines are often imposed on companies as they are corporate entities that cannot spend time in prison
85
Community corrections orders
- A non custodial order by the court that allows the offender to remain within the community with certain conditions attached - eg rehabilitation or community service
- Can be imposed alongside a fine or imprisonment of 1 year or less
- Can be imposed if the offence is punishable by 5 penalty units ($987.95) or more or if the offender has agreed to a CCO
- For a single offence, the max is 2 years, for multiple it can be up to 5
- Cannot be imposed for serious indictable offences
86
Mandatory CCO conditions
- Not reoffend during the duration of the CCO
- Not leave Victoria without permission
- Notify CCO officer of a change of address
- Comply with directions given by the CCO
87
Imprisonment
- A sanction that removes an offender from the community and places them in prison for a given period of time.
- Court provides a minimum period of imprisonment after which an offender can apply for parole
- Concurrent or Cumulative sentences
88
Parole
The early release of a prisoner after their minimum term is served which is subject to supervision and certain conditions
89
Concurrent sentences
A sentence of imprisonment or detention that is served at the same time as another when the offender is convicted or more than one crime (eg 3 years of imprisonment for all the offences they were charged with)
90
Cumilative sentences
A sentence of imprisonment or detention that is served one after another (eg the sentence for the 2nd offence begins after the completion of the 1st)
91
92
Purposes of sanctions
Punishment
Protection
Denunciation
Deterrence
Rehabilitation
DR DPP
93
Punishment (purpose of sanction)
Involves penalising the offender and holding them accountable when they have done something unacceptable
Imprisonment is the ultimate form of punishment
94
Protection (purpose of sanction)
Removing offenders from society to ensure they do not pose a risk to the safety of their victims or society
A horrendous crime, lack of remorse and callous attitude indicate that a person should be removed from society
95
Denunciation (purpose of sanction)
Publicly and formally criticise the offenders criminal behaviour to highlight how the offender has violated the moral and ethical standards of society.
Often in cases undertaken by many members of society (eg tax fraud, family violence)
96
Deterrence (purpose of sanction)
Specific:
- The individual offender is discouraged from committing the same or similar offences through sanctions
- Dependent on the offender's personal circumstances eg more effective for a first-time offender
General:
- General public is discouraged from committing same or similar crimes to avoid receiving same sanction as offenders
- relies on the public knowing and understanding sanctions
97
Rehabilitation (purpose of sanctions)
Seek to break the cycle of offending and address the underlying causes of criminal behavior
Reforming offender's behaviors reduce crime rates and cost of imprisonment - in society's best interest
Counselling, education and training to provide chance of better future
98
What is a sentence
The order given by a court to impose a sanction upon those found guilty of an offence
99
What is sentencing
The stage after a trial where an accused person was found guilty, where a sentence determines an appropriate sanction for the offence committed
100
Standard sentences
The sentence that should be imposed for 'middle of the range seriousness' offending, before the judge takes into account other sentencing factors relevant to the case
101
Mitigating factors
Circumstances relevant to the offender, the victim or the crime that may decrease the offenders culpability, thus lessening the severity of the offence and ultimately the type of harshness of the sentence imposed
102
Aggravating factors
Circumstances relevant to the offender, the victim or the crime that may increase the offenders culpability, thus increasing the severity of the offence and ultimately the type of harshness of the sentence imposed
103
Guilty plea
When an offender formally admits guilt, which is then cosidered by the court when sentencing (early guilty plea often results in lighter sentence)
104
Victim impact statements
Statements filed by the victim that is considered by the court that contains particulars of any injury, loss or damage suffered by the victim as a result of the offence (can be further evidence to the severity of the offence)
