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AOS 2 - Proving guilt Flashcards

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1
Q

DOT POINT 1

A
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2
Q

What is a crime

A

A crime has 3 elements : it is an act or an omission
1. Against an existing law
2. Harmful to an individual or society
3. Punishable by law

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3
Q

Against a law

A

You have to act/omit in a way that is not allowed by an existing and valid law

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4
Q

Harmful to an individual/society

A

Criminal acts often impact beyond the immediate victim. Often the effects are felt more broadly - they can:
- Make people feel less safe
- Compromise people’s enjoyment of public spaces
- Tie up community resources (eg hospitals)
- Lead to higher likelihood of further crimes

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5
Q

Punishable by law

A

Laws are mainly enforced by Victoria police. For those who plead/found guilty, punishment is determined by :
- Magistrates (summary offences)
- Judges (indictable offences)

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6
Q

Purposes of criminal law

A
  1. Protect individuals and property
  2. Protect society and public order
  3. Protect justice and rights
  4. Improve society
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7
Q

Protect individuals and property

A

Protects us, our personal property and also public property. People should not hurt us/our property

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8
Q

Protect society and public order

A

Protects physical, social and financial aspects of society

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9
Q

Protects justice and rights

A

State enforces the law EQUALLY against all; also ensures our basic rights are protected

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10
Q

Improve society

A

Deters people from committing offences

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11
Q

DOT POINT 2

A
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12
Q

Presumption of innocence

A

A person accused of a crime is entitled to be treated as innocent until they either plead guilty or are found to be guilty beyond reasonable doubt
- This means it is the prosecutions job to provide evidence to prove the accused is guilty
- Also means the accused can say nothing - the accused is only obliged to state their name and address

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13
Q

Main things that support the presumption of innocence

A
  • Burden of proof is on the prosecution
  • The accused has the right to remain silent
  • The accused normally has the right to bail after being arrested
  • The prior convictions of the accused are not disclosed at the trial
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14
Q

DOT POINT 3

A
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15
Q

Key concepts of criminal law

A
  • Elements of a crime : actus reus and mens rea
  • Strict liability
  • Age of criminal responsibility
  • The burden of proof
  • The standard of proof
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16
Q

Actus reus and mens rea

A

ACTUS REUS : The acts or omissions that amount to a crime
- What you did or did not do
- A physical thing - your actions

MENS REA : Person’s state of mind - your intentions

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17
Q

Strict liability

A

Means crimes involving no mental element
- no need to establish mens rea of accused
- whether they meant to do it or not does not matter
- many strict liability crimes are SUMMARY offences
- eg traffic offences - speeding

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18
Q

The age of criminal responsibility

A

The age a person must be before they can be charged with a crime
- Vic = 10 years old
- If accused is between 10-13, they are believed to be ‘incapable of wrong’ - doli incapax
- prosecution must establish the accused KNEW THEIR ACTIONS WERE WRONG

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19
Q

The burden of proof

A

The RESPONSIBILITY of establishing a case
- For criminal case, usually falls on prosecution
- Must present ALL evidence
- This is because there is a PRESUMPTION OF INNOCENCE

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20
Q

However…

A

There are some narrow expectations where the burden of proof is placed on the accused = reverse onus
- In these cases, the standard of proof is set at a lower level (balance of prob)

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21
Q

The standard of proof

A

The LEVEL or EXTENT to which the prosecution has to prove their case
- Criminal matter = beyond reasonable doubt
- BYD means that no other logical conclusions can be drawn from the evidence than that the accused is guilty
- The standard is very high, much higher than civil case - this is to protect wrongful convictions

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22
Q

DOT POINT 4

A
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23
Q

Types of crime

A
  • Crimes against the PERSON
  • Crimes against PROPERTY
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24
Q

How to classify a crime

Study These Flashcards
A
  • Nature of the offence
  • Type of offender/victim
  • Seriousness of offence
25
Nature of the offence (6)
DIVISION A : crimes against the person (protecting individuals) - e.g homicide, stalking DIVISION B : property and deception offences (protecting property) - e.g property damage, burglary DIVISION C : drug offences (protecting society) - e.g dealing and trafficking drugs, manufacturing drugs DIVISION D : Public order and security offences (maintaining public order and security) - e.g weapons and explosives, terrorism DIVISION E : Justice procedure offences (protecting justice and the rule of law) - e.g perjury (giving false evidence under oath), contempt of court DIVISION F : Other offences (protecting rights and culture, and improving society) - e.g driving offences, transport regulation offences
26
Type of offender/victim (5)
Cyber crime : use of computers, devices - e.g online fraud, hacking Hate crime : directed at specific people because of personal characteristics - e.g gender, race, religion Organised crime : criminal gangs who engage in planned and ongoing criminal activity - e.g can often involve gambling, drugs Juvenile crime : crime by youngters (10-18) - e.g vandalism, theft White collar crime : crimes committed by those who work for businesses or governments - e.g often work in office and wear business shirts - white is business and blue is tradie
27
Seriousness of offence
- Indictable offences : Serious, usually heard in front of a judge or jury in high courts - supreme or county court - Summary offences : Minor , usually heard in front of a magistrate in the magistrates' court
28
Why bother with these classifications?
- Helps POLICE to ORGANISE so they have specialist officers, teams or units focused on specific types of crime/criminals/victims - Helps COURTS get ORGANISED - offences can be tried before specialist courts, which lead to fairer, quicker and cheaper outcomes - Helps GOVERNMENT collect statistics about different classifications - helps prevention and enforcement strategies - know where to put money/resources - Helps JUSTICE SYSTEM deal w offenders - patterns may emerge from people committing types of crimes - their sanctions/rehab programs can be tailored specifically to match the circumstances of their offending
29
DOT POINT 5
Distinction between summary and indictable offences
30
Summary offences
- MINOR criminal offences - Heard in the Magistrate's Court without a jury - Heard by a Magistrate - Always resolved by a hearing not a trial - Most are listed in the summary offences act - Examples : speeding, driving unregistered car
31
Indictable offences
- SERIOUS criminal offences - Trials are heard in either County or Supreme court with a jury of 12 people - Heard by a judge - The jury determines whether the accused is guilty and the judge determines the sanction/sentence - Most are listed in the crimes act - Examples : Murder, manslaughter, rape
32
The messy one - Indictable offences heard summarily (8)
- Some crimes are technically indictable but LESS SERIOUS, e.g the victim did not suffer a serious injury - With CONSENT from the court and prosecution, these can be heard summarily - this means it will be heard in the mag's court in front of a mag - If offered this option, accused will always say 'yes' - This is because it is quicker + cheaper - Also a lower sentence - magistrate's have limits on the MAX sentence they impose = 2 years MAX for a SINGLE offence = 5 years MAX for multiple offences - To summarise : Accused must approve, offence cannot be punishable by more than 10 years and/or a fine greater than 1200 penalty units (200,000) - They are listed in the Criminal Procedure Act - Examples : Minor theft - up to 100,000, minor assault
33
DOT POINT 6
34
Participants in a crime
- Principal offender - Person INVOLVED in a crime - ACCESSORY to a crime
35
Role of principal offender
Committed the actus reus, has the mens rea
36
Role of person involved in a crime
- Has equal responsibility to the principal offender (classified as a principal offender) - Assists, encourages or directs another person to commit the crime - Agrees with another person to commit a crime together
37
Role of accessory to a crime
- Assists a principle offender AFTER the commission of the crime - Assistance involves doing something that is trying to stop that person being arrested, charged, prosecuted or convicted of the crime
38
DOT POINT 7
39
Two criminal offences
- Murder - Offensive behaviour
40
Murder elements (4) - What prosecution must prove
- Killing was unlawful - The accused's acts were voluntary - The accused committed acts that caused the victim's death - The accused acted with intent to kill or cause serious harm
41
Killing was unlawful
The accused DID NOT have a lawful reason to kill the victim. A lawful reason could include : - A soldier or police officer acting in the line of duty - A medical practitioner approving a drug for voluntary assisted dying use - Acting in self defence or under duress and the court felt their actions were reasonable
42
The accused's actions were voluntary
The prosecution must prove the accused committed the acts when they were AWAKE, AWARE and in CONTROL of their bodily actions - Accused's actions must have also been DELIBERATE and NOT the result of an UNINTENTIONAL accident
43
The accused committed acts that caused the victim's death
The prosecution must prove the accused committed acts that contributed SIGNIFICANTLY and SUBSTANTIALLY to the victim's death - There are two parts to this : Committing the act (e.g shooting a gun) and causation - The victim also must be a LIVING person who has been born - unborn babies and animals are treated differently
44
The accused acted with intent to kill or cause serious harm
The prosecution must prove the accused acted with a GUILTY MIND (mens rea) - Specifically, the prosecution must prove that when the accused committed the acts, they either = INTENDED to kill someone/cause them serious injury = or, KNEW that they would probably die/serious injury as a result of their actions
45
Possible defences (5) - Accused may try and establish one of these defences to defend themselves of murder
- Self-defence - Mental impairment - Duress - Sudden or extraordinary emergency - Involuntary actions - intoxication, accident
46
Self-defence
When you use force to fight off an attack in order to protect yourself/others. Three elements to proving this defence : - Must have believed it was NECESSARY to defend themselves/others from serious injury - Must have REASONABLE GROUNDS ** to believe conduct was necessary to protect themselves - The force used must be REASONABLE in all circumstances
47
Mental impairment
- Defence must show that the accused did not know either = the nature and quality of the act they committed = that it was wrong - The accused is presumed to NOT be suffering from a mental impairment. So if the accused raises this defence, they must provide evidence (e.g medical evidence) to support it (Burden is on Accused) - If this succeeds, the accused is not found 'not guilty' but rather 'not guilty by reason of mental impairment'
48
Duress
A threat/force to make someone do something - You must believe 3 things to claim this defence : = A THREAT that was made to kill/cause serious injury will be carried out if you don't act = Doing what you did is the ONLY WAY the threatened harm can be AVOIDED = Your conduct is a REASONABLE response to the threat
49
Sudden or extraordinary emergency
This defence requires 3 things : - Accused must believe the circumstances of an EMERGENCY (involves the risk of death/serious injury) occurred - Accused must believe that committing the offence was the only way to DEAL w the emergency - Accused's actions were REASONABLE in all of the circumstances
50
Involuntary actions - intoxication
Being drunk/on drugs is not a defence in itself - it does not reduce your responsibility for your actions - Judges hate this defence - they will typically judge your actions against those of a REASONABLE person who is NOT INTOXICATED - However, one exception - if intoxication is NOT self-induced
51
Involuntary actions - accident
The accused may claim that their actions were ACCIDENTAL, and that they acted without INTENTION to commit the crime - The accused may be found NOT guilty if their actions were : = Involuntary = Unintentional = Reasonably unforeseeable by an ordinary person
52
Offensive behaviour
All about prohibiting anti-social behaviour - Found in the Summary Offences Act
53
Offensive behaviour elements
- The accused's conduct was PROHIBITED by section 17 - The accused's conduct occurred in a PUBLIC place
54
The accused's conduct was PROHIBITED by section 17
Prosecution must establish that the accused's behaviour consisted of one of the behaviours prohibited by section 17 - Singing an obscene song or ballad - Writing or drawing, exhibiting or displaying an indecent or obscene word or image - Using profane, indecent or obscene language - Using threatening, abusive or insulting words - Behaving in a riotous, indecent, offensive or insulting manner Determining if these actions were 'obscene' or 'offensive' are up to the COURT to DECIDE
55
The accused's conduct occurred in a PUBLIC place
If the accused's conduct took place in or near a PUBLIC place or can be seen or heard passing a public place - Therefore a person can be on private property and still commit this offence if people from public can see/hear them
56
Offensive behaviour possible defences
General defences = Mental impairment = Sudden or extraordinary emergency Specific defences to offensive behaviour = The behaviour was an exercise of political or human right = Honest and reasonable mistake
57
General defences
Mental impairment - A person with Tourette Syndrome may experience the involuntary outburst of obscene words/actions Sudden or extraordinary emergency - A person may swear loudly from stress in an event of an emergency
58
Specific defences to offensive behaviour
The behaviour was an exercise of political or human right - E.g in DEMOCRATIC countries, behaviour is usually not considered offensive if it is a peaceful and appropriate expression of a human right or a political right Honest and reasonable mistake - Could apply if the accused GENUINELY believed they were NOT acting in a way that was OFFENSIVE - Reasonableness is determined by an ordinary person in the same circumstance
59
YOUR DONE
GOOD LUCK!

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