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Law > Year 11 AOS 1 Unit 2 Exams > Flashcards

Year 11 AOS 1 Unit 2 Exams Flashcards

Use this deck to revise the key areas of AOS1. Remember your exam questions will ask you to explain and discuss these features, although it will rarely ask you to outline and define.

You may prefer our related Brainscape-certified flashcards:
Civil Procedure 1L flashcards MBE flashcards MPRE flashcards
1
Q

What are the institutions that enforce criminal law?

A

In Victoria, the following institutions have the power to enforce certain types of criminal laws:

  • The police (including Victoria Police and the Australian Federal Police)
  • Other delegated bodies (including WorkSafe Victoria and local councils).
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2
Q

What is the role of the police?

A
  • The role of the police is to serve the community and the law and to enforce criminal law.
  • The police preserve the peace, protect life and property, prevent crime, detect and apprehend offenders, and assist victims of crime or other people in times of emergency.
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3
Q

What is the role of Victoria Police?

A

The role of Victoria police is to serve the Victorian community and uphold the law to promote a safe, secure and orderly society.

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4
Q

What kind of tasks will the police undertake?

A
  • talk to victims or witnesses about what happened
  • question possible suspects
  • examine the scene(s) of the crime
  • look for and gather physical or forensic evidence
  • conduct searches of people or property
  • arrest accused persons
  • charge people with the offences that most fit the crime.
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5
Q

What is the role of the Australian Federal Police (AFP)

A
  • The role of the AFP is to investigate and enforce offences that have a federal aspect.
  • Offences that have a federal aspect include those offences that are against the law of the Commonwealth or a territory.
  • The AFP is provided with various powers to enforce criminal law. For example, protective service officers have the power to arrest a person without a warrant and conduct searches of a person.
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6
Q

Which law making body give delegated bodies their power to enforce criminal law?

A

: These bodies are known as delegated bodies because they are delegated (or given) power by the parliament to make and/or enforce laws.

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7
Q

What power does Consumer Affairs Victoria have?

A

Consumer Affairs Victoria can take action in relation to breaches of consumer trading laws and tenancy laws.

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8
Q

What power does Environmental Protection Authority (EPA) have?

A

The EPA has the power to investigate breaches of environmental laws and commence proceedings for offences committed in relation to the environment.

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9
Q

What power does Local councils have?

A

Local councils govern at a local level and have the power to enforce local laws where a local law makes an act or an omission a criminal offence.

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10
Q

What power does State Revenue Office (SRO) have?

A

SRO is Victoria’s tax collection agency and administers laws relating to taxes, duties and levies. For example, the SRO can take action in relation to providing false and misleading information to obtain a first home owner grant.

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11
Q

What power does VicRoads have?

A

VicRoads has authority to prosecute certain road and traffic offences. It can also issue infringement notices for breaches of road rules.

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12
Q

What power does the Victorian Work Cover Authority (WorkSafe Victoria) have?

A

WorkSafe monitors and enforces compliance of Victoria’s occupational health and safety laws. It can investigate breaches of laws and prosecute in relation to any breaches.

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13
Q

What power does the Australian Securities and Investments Commission (ASIC) have?

A

ASIC will investigate breaches of legislation, including where directors have acted in breach of their duties. Sometimes the matter will be prosecuted by the Commonwealth Director of Public Prosecutions (CDPP).

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14
Q

What power does the Australian Taxation Office (ATO) have?

A

The ATO investigates serious tax-related fraud offences. They will prosecute summary offences, such as failing

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15
Q

What are the four reasons for a court hierarchy?

A
  • The court hierarchy allows for specialisation or expertise.
  • The court hierarchy enables the parties to a court case to appeal to a higher court if they are not satisfied with the decision in a lower court.
  • The court hierarchy is a necessary part of the doctrine of precedent (law-making through courts) because the process of law-making through courts depends on a decision being made in a higher court which is binding on lower courts.
  • A court hierarchy allows for administrative convenience.
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16
Q

List the federal courts in Australia

A
  • High Court of Australia
  • Federal Court of Australia
  • Family Court of Australia
  • Federal Circuit Court of Australia
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17
Q

List the Victorian courts

A
  • Supreme Court (Court of Appeal)
  • Supreme Court (Trial Division)
  • County Court of Victoria
  • Magistrates’ Court of Victoria
  • Coroners Court
  • Children’s Court
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18
Q

What is the role of Victorian courts?

A
  • Determine a criminal case (by deciding whether the accused is guilty)
  • Impose a sanction (if a person has been found, or has pleaded, guilty).
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19
Q

What is a committal hearing?

A

If the accused is charged with an indictable offence, the case will first go to the Magistrates’ Court for a committal proceeding. Several stages occur during committal proceedings. The final stage is a committal hearing at which the magistrate will decide whether there is evidence of a sufficient weight to support a conviction at trial, following which the proceeding will continue in either the County Court or the Supreme Court.

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20
Q

What is a plea hearing?

A

If an accused pleads guilty, or the magistrate or jury finds the accused guilty, then the court will set a date for the plea hearing. Both parties make submissions about the facts of the case, the circumstances of the offender, the relevant factors that should be taken into account in sentencing and the type of sentence the offender should receive.

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21
Q

When a court is hearing a dispute for the first time, it is operating in its ……..?

A

original jurisdiction

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22
Q

When a court is hearing an appeal, it is operating in its……?

A

appellate jurisdiction

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23
Q

list the type cases in which the Magistrates’ Court has the original jurisdiction

A
  • Summary offences
  • Indictable offences heard summarily • Committal proceedings
  • Bail and warrant applications
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24
Q

Does the Magistrate’s Court have an appalet jurisdiction?

A

The Magistrate’s Court does not have an appellate jurisdiction. Meaning, no cases can be apealed to the magistrate court.

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25
Q

list the type cases in which the County Court has the original jurisdiction

A

• Indictable offences except murder, attempted murder, certain conspiracies, corporate offences

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26
Q

Does the County Court have an appalet jurisdiction?

A

The County Court can apeal cases from the Magistrates’ Court on a conviction or sentence

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27
Q

list the type case in which the Supreme Court (Trial Division) has the original jurisdiction

A

• Serious indictable offences

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28
Q

Does the Supreme Court (Trial Division) have an appalet jurisdiction?

A

The Supreme Court (Trial Division) can apeal cases from the Magistrates’ Court on a question of law

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29
Q

Does the Supreme Court of Appeal have an original jurisdiction ?

A

• No original jurisdiction

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30
Q

Does the Supreme Court of Appeal have an appalet jurisdiction?

A

The Supreme Court of Appeal can apeal cases from the County Court or the Supreme Court (with leave)

31
Q

The Children’s Court can hear offences that are comminted by…..?

A

children between 10 and 17 years of age (except for certain offences like murder and treason)

32
Q

Does the Children’s Court have an appalet jurisdiction?

A

The Children’s Court does not have an appellate jurisdiction.

33
Q

Coroners Court

A
  • Investigation of deaths and fires

* No appellate jurisdiction

34
Q

Overview of the County Court

A

The County Court hears all indictable offences except those set out in Section 36A of the County Court Act 1958 (Vic), which includes treason, murder, attempted murder and certain conspiracies. If the accused pleads not guilty, the hearing at which guilt is determined is known as a trial.

35
Q

Overview of The Supreme Court (Trial Division)

A

The Trial Division of the Supreme Court has jurisdiction to hear all indictable offences, but generally hears those most serious indictable offences not able to be heard by the County Court, such as treason, murder and attempted murder. If the accused pleads not guilty, the hearing at which guilt is determined is known as a trial.

36
Q

Overview of The Supreme Court (Court of Appeal)

A

The Court of Appeal has no original jurisdiction. It hears appeals from the County Court and Supreme Court, which are usually determined by three justices. These appeals may question a conviction, the severity or leniency of a sentence or a question of law.

37
Q

Further appeals from the Court of Appeal is heard by the…..?

A

Any further appeals from the Court of Appeal would be heard by the High Court of Australia, which is the final appeal court. Leave (permission) is required from the High Court to appeal a decision.

38
Q

The jury system is used to determine….?

A

the jury system is sometimes used to determine whether a person is guilty of an offence.

39
Q

What is a trial by jury?

A

A trial by jury is an impartial group of people who are randomly selected to hear the evidence and hand down a verdict as to whether the accused is guilty or not guilty.

40
Q

List the four categories of people who will be unable to serve on a jury duty

A
  • ineligible people
  • people who are excused
  • people who are disqualified
  • people who are challenged.
41
Q

what makes a person Ineligible for jury duty?

A
  • Some people are ineligible to serve as jurors because of their occupation.

This includes people who in the last 10 years have worked as governors, police officers, legal practitioners, judicial officers, bail justices, ombudsmen, parliamentarians and public servants employed in law enforcement, criminal investigation, the provision of legal services in criminal cases, the administration of justice or penal administration.

  • People who cannot understand or effectively take part in the proceedings are also ineligible.
  • inadequate understanding of the English language.
42
Q

what makes a person disqualified for jury duty?

A

These people either have a particular type of criminal conviction or have been declared bankrupt and remain a bankrupt person.

43
Q

what makes a person excused for jury duty?

A

Possible reasons include ill health, excessive inconvenience to get to the court, substantial hardship in attending court, or having to care for dependents.

44
Q

What does it mean when a person in a jury is challenge?

A

There is no limit on the number of challenges with cause, but there is a limit on the number of ‘without cause’ challenges (known as peremptory challenges – a party is given two each).

45
Q

What is the role of the criminal jury?

A
  • listen to all the evidence
  • concentrate during trial
  • piece the evidence together and decide whether the accused is guilty or not guilty. It is the judge’s role to explain the law to the jury. The jury considers the evidence with respect to the law and makes its decision.
  • The finding of guilt by a jury must be made beyond reasonable doubt in a criminal case. This means that if a member of the jury is not sure that the accused is guilty, he or she must state ‘not guilty’.
46
Q

What does a hung jury mean?

A

This means that the accused has not been found either guilty or not guilty, and can be tried again at a later date.

47
Q

A person on jury must not…?

A

A member on the jury must not make enquiries about trial matters. This includes using the internet to search for information about the case.

48
Q

What are the five strengths of a jury system?

A
  • Independent of the legal and political system, thus ensuring equality and fairness in their decision.
  • It allows for the community to be involved in the process.
  • It ensures fairness by requiring the jury to deliberate based on the evidence and facts and not on their own independent research or investigations.
  • It spreads the responsibility, and therefore the decision is more likely to be fair and correct rather than it being made by one person (the judge).
  • It reflects community values and brings a common- sense approach to decision-making to the court
49
Q

What are the five weakness of a jury system?

A
  • Jurors do not give reasons for their decision.
  • The task to determine a verdict is difficult, particularly where there is complicated evidence or a significant amount of evidence.
  • Jurors may be unduly influenced by skilled lawyers or by the emotional elements of a trial.
  • Jurors may have biases that may play a role in their deliberation, even if they aren’t aware of those biases.
  • The jury trial may result in delays because legal terms have to be explained and the judge must give directions to the jury over time.
50
Q

The purpose of punishment.

A
  • One of the purposes of sanctions is to punish (i.e. penalise) the offender. This allows victims and their families to seek retribution without taking the law into their own hands.
  • Imprisonment and the deprivation of freedom is the ultimate punishment in our society.
  • Australia no longer uses capital punishment or corporal punishment as a sanction, as these punishments are considered inhumane and unacceptable in the twenty-first century.
51
Q

The purpose of Deterrence

A
  • The law aims to deter or discourage the offender and others in society from committing the same or similar offences in the future by imposing a penalty that is severe enough that the offender and others can see the serious consequences of committing the crime.
52
Q

The purpose of General deterrence

A
  • A sanction imposed as a general deterrent is one that discourages people in general from committing the crime.
53
Q

The purpose specific deterrence

A
  • A specific deterrent is aimed at stopping the particular offender who is being sentenced from repeating the offence.
54
Q

The purpose Denunciation

A
  • This is known as denunciation and it is designed to convey the message that this type of criminal behaviour will not be tolerated by the courts.
  • Impose a sentence that is harsh enough to show its disapproval
55
Q

The purpose Rehabilitation

A
  • A further aim of sentences is to rehabilitate (treat) the offender. It is in society’s interests to try to help offenders change their ways, otherwise crime rates and prison costs will escalate.
  • change their offending ways and become law-abiding citizens.
56
Q

The purpose Protection

A
  • One of the aims of sentencing is protection. This aim seeks to ensure the safety of society by imposing a sanction that will prevent the offender from harming again.
  • some offenders are given very long periods of imprisonment because the courts deem them to be a danger to society.
  • The horrendous nature of the crime, the lack of remorse and the offender’s callous attitude indicate that the person should be kept out of society for as long as possible.
57
Q

What does custodial sentence mean?

A

where the offender is removed out of society and into an institution

58
Q

What does and non-custodial sentence mean?

A

where the offender serves the sentence in the community

59
Q

What are fines?

A

A fine is a monetary penalty that is paid by the offender to the State of Victoria (not the victim).

60
Q

How are fines expressed?

A

Fimes are expressed in penalty units, ranging from 1 penalty unit to 3000 penalty units.

61
Q

What are the genral purpose of fines?

A

The general purposes of fines are to punish the offender, deter the offender from committing crimes any further and deter the general community.

62
Q

What factors will the court consider when deciding the fine?

A
  • the financial circumstances of the offender
  • any loss or destruction of, or damage to, property suffered as a result of the offence
  • the value of benefit received by the offender from the offence
  • any forfeiture, compensation or restitution order imposed (being orders that may have already resulted in the offender paying compensation or handing over property).
63
Q

What is a Community correction order?

A
  • A community correction order (CCO) is a sanction that allows an offender to remain in the community whilst serving the sanction.
  • A CCO cannot be imposed on an offender who has committed a ‘Category 1’ offence (which includes murder and rape), ‘Category 2’ offence (which includes manslaughter and kidnapping) unless special circumstances exist (such as where the offender has impaired mental functioning).
64
Q

factors of fines

A
  • If high enough and given to the appropriate person, can act as a general and specific deterrent
  • Can act as punishment if it is a burden on the offender
  • Can demonstrate the court’s disapproval if high enough
  • Many fines don’t get reported so may not act as a general deterrent
  • Unlikely to rehabilitate or protect unless imposed with another sentence
  • If offender has capacity to pay, may not be specific deterrent
65
Q

factors of CCOs

A
  • Can enable the offender to rehabilitate and serve punishment away from influences of prison
  • Can act as a burden on the offender, thus specifically deterring him or her
  • Provides flexible rehabilitation conditions
  • Can address underlying issues of offending such as alcohol or association with certain persons • May not punish an offender if inappropriate conditions imposed
  • Rehabilitation depends on the willingness of the offender • Unlikely to punish as much as imprisonment
  • Not able to be given for many offences
66
Q

factors of Imprisonment

A
  • Serves as an effective method of protection
  • Most serious punishment with deprivation of liberty
  • Widely reported and can act as an appropriate general deterrent
  • Rehabilitation depends on the offender, the programs and the environment
  • High recidivism rates may suggest imprisonment is ineffective
67
Q

Factors which may reduce the sentencing

A
  • Nature and gravity of offence
  • Early guilty plea
  • Mitigating factors
  • Lack of prior offending
  • Remorse
68
Q

Nature and gravity of offence

A
  • If the offending is on the low end of the scale
69
Q

Early guilty plea

A
  • If the offender has pleaded guilty, and the earlier the guilty plea is, the court may impose a lesser sentence.
70
Q

Mitigating factors

A
  • Examples of mitigating factors include where the offender was acting under duress, prospects of rehabilitation, any personal strain the offender was under, the lack of injury or harm caused by the offence, or full admissions made by the offender.
71
Q

Lack of prior offending

A
  • If the offender has not offended before, this is likely to work in his or her favour as it may demonstrate a one-off incident or a lack of criminality.
72
Q

REMORSE

A
  • If the offender shows significant remorse, then the court may take this into account.
73
Q

Factors which may increase the sentencing

A
  • If the offending is on the high end of the scale, then it is possible that the court will view a higher sentence as more appropriate.
  • Aggravating factors include the use of violence or explosives, the offence taking place in front of children, the offender being motivated by hatred or prejudice, or the offender being in a position of trust and has breached that trust (for example a parent committing a crime against a child).
  • If the victim has significantly suffered as a result of the offence, then this can persuade the court in sentencing.
  • If there was significant injury, loss or damage to property or a person, then this is likely to increase the sentence.

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