AOS2: Presumption of Innocence

Question 1

Prosecution

Answer 1

Represents the Crown (or state) in a criminal case.

may be referred to as R (Regina), DPP, The Queen

Question 2

Defendant

Answer 2

The person charged with the crime and on trial

Question 3

How many jury members are there in criminal trials?

Answer 3

12

Question 4

What is a hung jury?

Answer 4

When the jury cannot come to a decision.

This means there will be a retrial with a new jury.

Question 5

When are juries used in criminal trials

Answer 5

• Not in magistrates (only magistrate)

- In all trials of County/Supreme Courts

Question 6

What are the two verdicts of a criminal trial?

Answer 6

GUILTY or NOT GUILTY

Question 7

What is a principal offender?

Answer 7

Anyone who commits a crime or aids, abets, counsels or organizes a summary/indictable offence

Question 8

What is meant by an accessory

Answer 8

Anyone who knowingly impedes/obstructs the apprehension, prosecution, conviction or punishment of the main offender of a crime.
(accessory if sentence of crime is 5+ years)

Question 9

Outline a summary offence

Answer 9

A minor criminal offence heard before a magistrate.

- Outlined in Summary Offences Act 1966 (Vic) and Road Safety Act 1986 (Vic).

Question 10

Outline an indictable offence heard summarily

Answer 10

Serious offences heard before a magistrate alone

• e.g minor burglary, minor assault, theft not exceeding $100,000
• D chooses county/magistrates court

Question 11

Outline indictable offences

Answer 11

The most serious criminal offences.

• Outlines in the Crimes Act 1958 (Vic)
• e.g murder, manslaughter, rape, culpable driving

Question 12

Purpose of committal hearings?

Answer 12

An individual charged with an indictable offence INITIALLY experiences a committal hearing in magistrates court.
ROLE = determine if there is enough prosecution evidence for conviction at trial.

Question 13

Nature Seriousness and Max penalty of murder

Answer 13

Nature = crime against the person

Seriousness = most serious indictable offence

Maximum penalty = life imprisonment

Question 14

Definition of Murder

Answer 14

• STEMS FROM COMMON LAW
• “a person of sound memory, at age of discretion, unlawfully kills any reasonable creature under the King’s peace, with malice aforethought”

Question 15

Elements of Murder

Answer 15

1) The accused was above the age of discretion
2) The victim was a human being
3) The accused was of sound mind
4) The killing was unlawful
5) Causation
6) Malice aforethought

Question 16

What is required to demonstrate malice aforethought?

Answer 16

• The accused intended to KILL the victim
• The accused intended to INFLICT SERIOUS INJURY
• The accused acted with RECKLESS INDIFFERENCE

Question 17

Defence to Murder: Self Defence

Answer 17

Accused:

• Believed it was necessary to act
• Had reasonable grounds for this belief
• Force used was reasonable/proportionate to force used by attacker.

Question 18

Defence to Murder: Battered partner syndrome

Answer 18

• A partial defence to support a self defence claim

- Used when “repeatedly subject to forceful physical/psychological behaviour at least twice”

Question 19

Defence to murder: Mental Impairment

Answer 19

Concerned with accused’s state of mind at time of offence

• Accused did not know what they were doing
• Accused did not know the nature/quality of their actions

Question 20

Defence to murder: Duress

Answer 20

When a person believes:

• A threat of harm will be carried out unless the crime is committed
• Committing the crime is the only way to avoid harm
• Conduct was a reasonable response to the threat made

Question 21

Defence to murder: Intoxication

Answer 21

• Only applies to intoxication that is NOT SELF INDUCED.

- Courts compare actions of intoxicated person to reasonable person intoxicated to same extent

Question 22

Defence to murder: Sudden/Extraordinary Emergency

Answer 22

• There was a sudden/extraordinary emergency
• Actions were the only way of dealing w situation
• Conduct was a reasonable response

Question 23

Defence to murder: Necessity

Answer 23

• Accused acted to protect themselves/someone else from irreparable evil or harm
• Honestly believed it was a situation of imminent peril
• Act was reasonable and proportionate to peril

Question 24

Defence to murder: Automatism

Answer 24

• Act was involuntary

- Individual was not conscious of their actions e.g sleep-walking

Question 25

Defence to murder: Accident

Answer 25

When accused did not possess mens rea

Question 26

Defence to murder: Consent

Answer 26

Could be used in sports situation where a player acce[ts physical contact may occur.

Question 27

Manslaughter Definition

Answer 27

Where one does not intend to kill or cause grievous bodily harm, but their reckless or negligent conduct results in the killing of another. - without MALICE AFORETHOUGHT

Question 28

What has the accused done in relation to manslaughter? (4 things)

Answer 28

- Performed an unreasonable act which could be foreseen to cause serious injury/death. - Intentionally caused bodily harm without intending to cause grievous bodily harm/death - Been criminally negligent (failed to maintain a standard of care) - Failed to act in a situation where a law had imposed a duty to act

Question 29

Voluntary Manslaughter:

Answer 29

If one had killed another upon being provoked H/W defence of provocation can no longer be used

Question 30

Impact of Homicide: Victim/Victim's family

Answer 30

- Loss of Life - Funeral costs - Lost trust in legal system

Question 31

Impact of Homicide: Offender/Offender's family

Answer 31

- Shame/Guilt - Legal costs - Liberty taken away due to imprisonment

Question 32

Impact of homicide: Society

Answer 32

- Loss of public confidence in legal system - Increased need for police and emergency services - May protest to demand law change

Question 33

Victim impact statement:

Answer 33

A written statement in the form of a statutory declaration that outlines the victim's feelings, financial loss and physical injuries - Presented after guilty plea/verdict - Written by victim's family

Question 34

Theft Definition:

Answer 34

Where a person dishonestly appropriates property belonging to another which the intention to permanently deprive the other of it.

Question 35

Elements of Theft

Answer 35

1) Acted dishonestly 2) Appropriated property belonging to another 3) Intention to permanently deprive

Question 36

Development of law of theft:

Answer 36

CL: As larceny now SI: refines elements + expands theft meaning - elements/punishments contained in Crimes Act 1958 (Vic)

Question 37

When does a person act honestly:

Answer 37

- Had a legal right - Would have had owner's consent - Had belief owner could not be discovered in reasonable steps.

Question 38

What does it mean to appropriate:

Answer 38

- To take property without consent - To interfere/assume rights of owner - To take/keep an item to use, devalue, or try to sell

Question 39

Defence to theft: Lack of elements

Answer 39

- Accused never took possession - Property 'stolen' was not actually property - Accused did not intend to permanently deprive - Accused believed they had a legal right - Dispute accuracy of the facts

Question 40

Defence to theft: Mental Impairment

Answer 40

Accused argues did not know actions were wrong at time of offence and had limited understanding of nature/quality of actions

Question 41

Defence to theft: Duress

Answer 41

- Threat of harm existed - Threat would be carried out unless offence was committed - Offence was only reasonable way to avoid harm

Question 42

Defence to theft: Sudden/Extraordinary Emergency

Answer 42

- Actions were only way of dealing with situation | - Actions were a reasonable response

Question 43

Defence to theft: intoxication

Answer 43

- Self induced: compare conduct to person not intoxicated | - Not self induced: compare conduct to reasonable person intoxicated at same level as accused.

Question 44

Defence to theft: Automatism

Answer 44

When accused was: - Sleeping/sleepwalking - Suffering concussion - Suffering from an epileptic seizure - Suffering side effect of medical condition/proper use of medicine