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year 11 legal studies > Criminal Law > Flashcards

Criminal Law Flashcards

Murder and other crimes

1
Q

Purposes of Criminal Law

A

Protect Individuals > from psychological, physical and economic harm (e.g. criminalizing acts such as assault)
Protect Society > by defining prohibited behaviors and outlining sanctions to deter people from illegal conduct (e.g. criminalizing drug use)
Protect Property > from harm (e.g. criminalizing theft of personal possessions)
Protect Justice > by providing proper processes to enforce law and penalize offenders (e.g. preventing victims from taking justice)

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2
Q

Crime

A

A crime is an act or omission that violates an existing law which causes harm to an individual or society and is punishable by law.

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3
Q

Actus Reus

A

‘the guilty act’ - the physical element of the crime - the prosecution must prove that the accused physically committed the wrongful action or inaction

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4
Q

Mens Rea

A

‘the guilty mind’ - the mental element of the crime - the prosecution must prove the accused knowingly, intentionally, negligently or recklessly committed the wrongful action or inaction

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5
Q

Presumption of Innocence

A

Refers to the right for all accused persons to be considered and treated as innocent until the charge has been proven by the prosecution beyond reasonable doubt.

> Old common law principle
Protected in the International Covenant on Civil and Political Rights (1966) and the Charter of Human Rights an Responsibilities Act 2006 (Vic)

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6
Q

Police Investigations

A

Police must have reasonable grounds (adequate evidence and reason for suspicion) to arrest an individual.
Other than providing their name and address, individuals have the right to silence when questioned by police.
Police can only collect forensic evidence (fingerprints or blood samples) when they reasonably suspect the person has committed a serious offence and they have informed the accused of such offence

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7
Q

Criminal Trial POI

A

Accused has the right to apply for bail and await their trial in the community.
Prosecution bears the BOP and must establish the guilt of the accused BRD.
Accused has the right to seek legal representation (inc. Vic Legal Aid). Court can be adjourned until representation is found.
Any prior convictions cannot be revealed in court until sentencing.

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8
Q

Limits to the POI

A

Sometimes the presumption must be limited to protect the community from individuals who have committed serious and violent offence e.g. murder, 2nd terrorism, likely to abscond

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9
Q

Strict Liability Offences

A

Do not require the mens rea element of a crime to be satisfied to find the accused guilty. The prosecution only needs to prove the actus reus. Strict liability offences are usually summary offences;
> speeding or running a red light
> serving an underage person alcohol at a licensed venue
> not wearing a seatbelt
> public transport fair evasion

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10
Q

Honest and reasonable mistake of fact

A

For some SLO, the accused may raise the defense of honest and reasonable mistake of fact. This is where the accused honestly believed certain facts at the time of the offence, which if true would mean they were not committing an offence.

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11
Q

Age of criminal responsibility (Vic)

A

The AoCR is the minimum age a person must be to be charged with an offence.
> A person under the age of ten cannot be charged with a crime
> B/w ten and thirteen the doctrine of doli incapax automatically applies. this means that they are considered incapable of forming criminal intent unless the prosecution can prove (thru police investigations and psych reports) that at the time of the crime the child knew that there actions were wrong - determine the child has the intellectual and moral capacity to know their actions are criminal
> A person aged 14 or over can be charged with a crime

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12
Q

Classifying Crimes

A

The Victorian Crimes Statistic Agency use six broad divisions -
Division A - crimes against the person (e.g. robbery)
Division B - crimes against property (e.g. theft)
Division C - drug offences (e.g. possessing)
Division D - public order and security offences (e.g. terrorism)
Division E - justice procedure offences (e.g. perjury)
Division F - other offences (e.g. driving offences

Other types of offences -
Cyber Crime
Hate Crime
Organized Crime
Juvenile Crime
White-collar Crime

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13
Q

Summary Offences (Types)

A

Minor or less serious criminal offences
Heard in the magistrates court
Many are contained in the Summary Offences Act 1966 (Vic)
Heard by a Magistrate alone
Law enforcement have the power to issue on the spot fines rather than taking the matter to court

(e.g. drink - driving)

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14
Q

Key Legislation - Summary offences

A

Summary Offences Act 1966 (Vic)

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15
Q

Indictable Offences (Types)

A

More serious criminal offences
Heard in the County or Supreme Courts
Generally judge and jury if accused pleads guilty (judge only - covid)
Offences listed in the Crimes Act 1958 (Vic) are indictable unless otherwise stated
(e.g. murder)

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16
Q

Key Legislation - Indictable offences

A

Crimes Act 1958 (Vic)

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17
Q

Indictable Offences Heard Summarily (Types)

A

Criminal Procedure Act 2009 (Vic) lists some less serious indictable offences that can be heard summarily in the Magistrates court. This includes causing criminal damage less that $100,000, theft less than $100,000 or less serious assault
Faster and cheaper
Maximum imprisonment Magistrate can set is 2 years for a single offence and 5 for multiple offences.
Requirements
> punishable by less than 10 years imprisonment or less that 1200 penalty units (approx. $230,000)
> accused must consent
> Court must determine it is appropriate (Magistrate in the Committal Proceeding decides this)

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18
Q

Key Legislation - Indictable offences heard summarily

A

Criminal Procedure Act 2009 (Vic)

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19
Q

Principle Offender - Creates an IDEAA
Section 323 of the Crimes Act 1958 (Vic)

A

A principle offender is someone who (does not have to be physically present);
COMMITS the offence by carrying out the actus reus
INTENTIONALLY
DIRECTING
ENCOURAGING or
ASSISTING another to commit an indictable offence or
makes an AGREEMENT with another person to commit an indictable offence together
A principle offender can be subject to the maximum penalty of the offence

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20
Q

Accessory - CAPP

A

An accessory is anyone who;
> knows or believes that a person has committed a serious indictable offence (punishable by five or more years imprisonment)
> acts to prevent the CONVICTION, APPREHENSION, PROSECUTION or PUNISHMENT of that person

An accessory can be found guilty of an offence regardless of whether the principle offender is found guilty

21
Q

Murder

A

The unlawful killing of a human being by a person who acted voluntarily and without any lawful justification

Murder is the most serious of homicide offences.
Crimes Act 1958 (Vic) specifies the sanction for murder (level 1 imprisonment (life))

22
Q

Elements of Murder

A

The elements of murder are derived from common law. The prosecution must prove each of the following beyond reasonable doubt.
1. The accused killed a human being (actus reus)
2. The accused’s act was voluntary (actus reus)
3. the accused’s act caused the death of the victim (actus reus)
4. The accused acted with intention or recklessness (malice aforethought/mens rea)
5. The killing was unlawful (no valid defence)

23
Q

Death of a Human Being (Murder)

A

The victim must be a living person, not an object, animal or unborn child.

24
Q

Act was Voluntary (Murder)

A

The accused must have had conscious and deliberate control of their bodily movements when committing the act that kills the victim.
Involuntary;
> they were sleep walking
> they were having an epileptic seizure or muscle spasms
> they were unintentionally falling over
> they were involuntarily and grossly intoxicated

25
Q

Causation (Murder)

A

The prosecution must prove a direct, unbroken causal link between the accused’s actions and the death of the victim.
The accused’s act does not need to be the only cause, but must;
> Be a substantial and operating cause of death
> if at the time of death, the original violence by the accused is still a significant contributor, the death is the result of the accused’s act, even if some other cause was also operating
> Have made it a natural consequence for the victim to escape
> Act of the accused induces well founded apprehension of physical harm to the victim, and they become injured whilst escaping, the injury is caused by the accused’s actions

26
Q

Intervening Acts (Murder)

A

Intervening act (novus actus interveniens) breaks the chain of causation
> a spontaneous, irregular and unpredictable act of nature (e.g. lightning strike or tidal wave)
> Medical treatment that was so palpably or overwhelmingly bad

27
Q

Eggshell Skull Rule

A

The accused must take their victim as the find them. Unless the victim acts in an unreasonable way, their particular beliefs, allergies or sensitives are not considered to be an intervening act.

28
Q

Malice Aforethought (Mens Rea)
Intentional Murder

A

Malice aforethought will be established if the accused specifically;
1. intended to kill the victim; or
2. intended to cause the victim grievous bodily harm
> GBH = really serious injury/includes unconsciousness/purely psych injuries are not sufficient
> must examine the subjective mindset of the accused by examining their surrounding behavior, incl. what they said, how they acted, their age, etc.
> conscious desire to bring death or GBH
> knowledge that death or GBH was a certain result

29
Q

Malice Aforethought (Mens Rea)
Reckless Murder

A
  1. The accused knows that their act will probably or likely kill or 4. grievously injure someone, but they nevertheless go ahead and commit the act with reckless indifference as to the consequences.
    > must determine the subjective mindset of the accused by examining their surrounding behavior, incl. what they said, how they acted, their age, etc.
    > probable consequence to bring death or GBH
    > expect that death or GBH was a likely result

There is no objective test; it is not sufficient for the danger to be obvious to a reasonable person or the jury

30
Q

Defenses to Murder

A

The accused can;
> Cast doubt on one of the elements of murder so that the prosecution cannot prove the offence beyond reasonable doubt
> raise a specific defense to justify their action (then the act of killing is not unlawful)
Complete defenses to murder - if they cannot be disproven by the prosecution then the accused will be acquitted

31
Q

Onus of Proof (Defenses to Murder)

A
  1. The accused must first present sufficient evidence to suggest that the defense is relevant and applicable to the case (evidentiary burden)
  2. Then the responsibility falls upon the prosecution to disprove the elements of the defense beyond reasonable doubt (legal burden)
32
Q

Self Defense (Defenses to Murder)

A
  1. The accused honestly believed that their actions were necessary to protect themselves or someone else from death of GBH
  2. Perceived their actions to be a reasonable response in the circumstances

Did the accused have a frailty of weakness? Was there a difference in size or age between the accused and the vic? Was the vic holding a weapon? Was there a history of violence between the pair? Was their honest belief in the necessity? Was the response reasonable?

33
Q

Duress (Defenses to Murder)

A
  1. The accused believed that a threat of death or GBH will be carried out unless they commit the crime
  2. Committing a crime is the only way to avoid the threatened harm
  3. Their conduct is a reasonable response to the threat made
34
Q

Sudden or Extraordinary Emergency (Defenses to Murder)

A
  1. The accused believed that there was a sudden or extraordinary emergency involving death or GBH
  2. Their actions were the only way of dealing with the situation
  3. Their conduct was reasonable to the situation
35
Q

Sanction for Murder

A

Section 3 of the Crimes Act 1958 (Vic) outlines the maximum penalty of life imprisonment. However the court generally sets a non-parole period (the minimum time the offender must be held in jail).
The Vic parliament has set a standard sentence of 25 years imprisonment or 30 years if the accused is an emergency worker or custodial officer. The standard sentence should be imposed for ‘middle of the range seriousness’ offending. The judge must consider the standard sentence before applying the other sentencing factors (e.g. guilty plea or the accused’s personal circumstances).

36
Q

Trends and Statistics in Victoria (Murder)

A

In Vic, the number of murder cases per year varies but there is a general downward trend. During the five year period 1 July 2016 to 30 June 2021;
> 97 ppl were sentenced for murder (2.8% of all cases sentenced in the County and Supreme Courts)
> Approx. 91% of those convicted were male
> Approx. 73% of offenders were aged between 25 - 54.

2017 - 18 - 27 sentenced
2018 - 19 - 25
2019 - 20 - 24
2020 - 21 - 9
2021 - 22 - 12

37
Q

Trends and Statistics in NT (Murder)

A

Murder rate in NT is approx. 3 times higher than the murder rate in Vic and is the highest in Aus (2.4 per 100,000 vs 0.8 per 100,000). The NT murder rate has trended upward over the past 5 years (1.6 in 2019 to 2.4 in 2023)

38
Q

Impacts on Victim and their Family and Friends (Murder)

A

> loss of vic’s life
long-lasting psychological harm for vic’s f&f such as shock, grief, anger, heightened stress and emotional trauma
Vic may have been primary financial provider (economic loss)
Media scrutiny = compound negative feelings felt by f&f
Victim’s Charter Act 2006 (Vic)
- fam to be treated w respect, courtesy and dignity
- fam to be informed of the investigation, prosecution, trial and sentencing
- fam given opportunity to provide vic impact statement
- fam have opportunity to seek financial compensation for their loss

39
Q

Impacts on Society (Murder)

A

> erodes public confidence in the ability of the police, the gov, and the crim justice system to protect the public
public may feel vulnerable and cautious about where they go and who they interact with
can often spur community into grassroot activism
will put a strain on the police, emergency services and the courts (t/f taxpayer $$)
rising trends may compel gov to pass harsher laws in an effort to reduce crime

40
Q

Impacts on the Accused (Murder)

A

> will face a term of imprisonment, potentially life
incur legal costs associated w defending themselves in court and then experience a loss of income - further complicated if primary financial provider for their fam
experience shame, guilt, regret and remorse
lengthy court process - live in a state of limbo for an extended period
limited prospects for rehab b/c socialize w other offenders
will have difficulty reintegrating back into society due to high levels of stigma.

41
Q

Culpable (Culpable Driving)

A

Culpable: deserving of blame or condemnation; being responsible for something bad occurring.

42
Q

Culpable Driving Causing Death Elements

A
  1. The accused was driving a motor vehicle (AR)
  2. The driving was culpable (MR)
  3. The culpable driving caused the death of another person (AR)
43
Q

Motor Vehicle (Culpable Driving)

A

Is a vehicle that is propelled by a motor and is normally used on a highway. This includes cars, trucks, buses and motorbikes but not motorized wheelchairs (that do not exceed speeds of over 10km/h), trains, trams or bicycles

44
Q

Driving (Culpable Driving)

A

Driving means that the person has substantial control of the movement and direction of the motor vehicle.
There is no clear-cut definition of driving and may be contested if;
> the vehicle was not fully operational
> the vehicle was not propelled by its own motor
> the vehicle was stationary

45
Q

Categories for Culpability (Culpable Driving)

A

The prosecution must prove that the accused was driving in one of the following ways;
1. RECKLESSLY - the driver is aware that there is a substantial risk that another person could die or be grievously injured and yet consciously and unjustifiably disregards the risk
2. NEGLIGENTLY - the driver fails, to a high degree, to observe that standard of care that a reasonable person would have observed in the same situation
3. UNDER THE INFLUENCE OF DRUGS OR ALCOHOL - the consumption of the alcohol or drugs must render the driver incapable of properly controlling the vehicle.

46
Q

Causation (Culpable Driving)

A

If the accused was driving in a reckless or negligent manner …
> the prosecution must prove that the reckless or negligent act was a substantial and operating cause of the victim’s death

If the accused was so affected by alcohol or drugs that they were incapable of controlling the vehicle …
> the prosecution only needs to prove that the accused’s driving was a substantial and operating cause of the victim’s death (assume the lack of control encompasses the entire drive)

47
Q

Trends of CDCD

A

Victoria - b/w 2017 and 2022 there have been 73 people sentenced for CDCD. Over the years this has remained relatively constant, with the most in one year being 19 (2018-19) and the least being 12 (2019-20). 100% of those sentenced received a custodial sentence. 87% of the offenders between 2015 and 2021 were male, with 37% of offenders under the age of 25, 56% aged between 25 and 54 and 7% of offenders aged over 55.

Comparison Vic to NT
Vic - relatively constant no. of recorded DCD offences at an average 1.36 per 100,000 people within the population
NT - fluctuates but observe a somewhat upward trend - 2023 saw 3.2 offences per 100,000 people within the population, which is more than double the stats of Victoria

48
Q

Impacts of CDCD

A

Victim/Friends/Family
> death, grief, psych harm, emotional trauma, shock, anger (range of emotions), fearful of driving and roads, involved and witnesses may suffer trauma and physical injuries, financial loss (funeral/bread winner)

Accused
> guilt, remorse, shame, difficulty reintegrating into society, limited future prospects, stigma, imprisonment, fine, license suspension, criminal record, psychological harm (PTSD), adverse media coverage, difficulty rehabilitating

Society
> fearful of roads, denounce CDCD, anger if believe the sanction was not fair, loss of faith in justice system, sanctions clearly outlined to deter, inept government - prospect of rallies and protests, changes to law, change to road, expense of taxpayer money

year 11 legal studies (4 decks)

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