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LAW > Criminal and Civil Law > Flashcards

Criminal and Civil Law Flashcards

1
Q

The purpose of Criminal Law

A

The purpose is to protect society as a whole and establishes a code of acceptable behaviour. Criminal law deals with individual disputes against the state.

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2
Q

The purpose of Civil Law

A

The purpose is to regulate the private rights of individuals, which occurs between two private parties.

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3
Q

The burden of proof in Criminal Law

A

The Burden of Proof falls onto the prosecution during the trial of a criminal case.

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4
Q

The burden of proof in Civil Law

A

The Burden of Proof falls onto the Plaintiff during the trial of a civil case.

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5
Q

The standard of proof in a Criminal Law

A

The standard that the prosecution must prove that the accused is guilty is ‘Beyond Reasonable Doubt’.

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6
Q

The standard of Proof in Civil Law

A

The standard that the plaintiff must prove that the defendant is liable is ‘On the Balance of Probabilities’.

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7
Q

Define a crime.

A

A crime can be described as an act or omission that is against an existing law, harmful to an individual or society as a whole and punishable by law.

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8
Q

What is an omission?

A

The failure to act

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9
Q

Regarding crime, what is Harmfulness?

A

Harms an individual or society. Eg physical harm, economic harm, environmental harm.

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10
Q

Regarding crime, what is immorality?

A

Immoral includes bad behaviour; behaviour that is not acceptable in society.

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11
Q

Regarding crime, what is a punishment?

A

Sanctions are handed down to offenders.

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12
Q

What is a summary offence?

A

Summary offences are less serious criminal offences that require the accused to be tried before a magistrate, without a jury.

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13
Q

What is an indictable offence?

A

Indictable offence is a serious criminal offence, that is tried before a judge and jury in a higher court, like the county or supreme court.

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14
Q

What is the age of criminal responsibility in Australia, and why?

A

The age of criminal responsibility in Australia is 10 years old. If you ‘commit’ any younger than this, in the eyes of the legal system, you are considered mentally incapable, or Doli Incapax, to commit a crime.

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15
Q

Who investigates the issue in a Criminal case?

A

The police.

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16
Q

Who investigates the issue in a Civil case?

A

The plaintiff must gather the evidence and bring the case to court as there is no police investigation.

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17
Q

What is taking action called in Criminal law?

A

Prosecuting.

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18
Q

What is taking action called in Civil law?

A

Suing.

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19
Q

What are the verdicts in Civil law?

A

Liable or not liable.

20
Q

What are the verdicts in Criminal law?

A

Guilty or not guilty.

21
Q

After a liable verdict is found, what happens now?

A

A remedy is awarded to the plaintiff, to try and restore the plaintiff back to their original position before the civil wrong occurred.

22
Q

After a guilty verdict is found, what happens now?

A

A sanction is imposed onto the accused

23
Q

Who is the action taken against in Criminal law?

A

The accused

24
Q

Who is the action taken against in Civil law?

A

The defendant

25
Q

What is Actus Reus?

A

A wrongful act, the act itself.

26
Q

What is Mens Rea?

A

Is a guilty mind, the act was premeditated.

27
Q

What is assault?

A

Assault is the unlawful interference with the body of another person through intentional application of force or threat of force.

28
Q

What are the elements of assault?

A

Without lawful excuse (self defense)
Intentional or reckless
Direct or indirect
Can be made to a person’s clothing or equipment

29
Q

What are the penalties for assault?

A

Ranging from assault under the summary offences act with a maximum penalty of three months, charges can escalate in severity to intentionally causing serious injury which carries a maximum penalty of 20 years. Fines are also handed down.

30
Q

What is rape?

A

Rape is unwanted sexual penetration that involves:

  • Penetration without the person giving their consent.
  • Failure to remove object on becoming aware that the person is not consenting.
31
Q

Consent is not?

A

1 - The person submits because of force or fear of force to themselves.
2 - The person submits because they are unlawfully detained.
3 - The person is asleep, unconscious or so affected by drugs or alcohol they are incapable of agreeing.
4 - The person mistakenly believes that act is for medical or hygienic purposes.
5 - Just because you are married to a person, do not mean that consent is automatically given.

32
Q

What is the maximum penalty for rape?

A

25 years in prison.

33
Q

What is the difference between bail and remand?

A

Once someone has been arrested, charged and waiting for trial, they are either on bail or remand. Bail allows the individual to be released until the time of the trial, although conditions do apply. Remand is where the individual has been denied bail because they are such a threat to the community.

34
Q

What are the conditions of bail? (Two)

A

Submitting to curfew and surrendering passport.

35
Q

What are mitigating factors?

A

Mitigating factors are taken into account when the judge is deciding on a sentence for the accused. They are the factors that will lessen the severity of the sentence.

36
Q

What are aggravating factors?

A

Aggravating factors are taken into account when the judge is deciding on a sentence for the accused. They are the factors that will aggravate the severity of the crime.

37
Q

What is a victim impact statement?

A

A victim impact statement is given by either the victim or the victim’s family after the trial when the accused has been found guilty. This statement simply tells the judge how the victim or the family of the victim has been impacted by this crime, both physically and psychologically.

38
Q

Types of sanctions? (There’s four)

A

Fines: Sum of money that has to be paid to the courts. Represented as penalty units. 1 penalty unit equates to approximately $155.
Community Corrections Order: a flexible sanction served the community that involves a number of set conditions and some optional conditions.
Youth Detention: For minors 10-17 years removed from society and have to their freedoms removed.
Imprisonment: Over 18 years old, removal from society and the deprivation of their liberty and freedoms.

39
Q

Purposes for sanctions? (There’s five)

A

Rehabilitation: Modify their behaviour so they can function properly in society. May be achieved through programs in prison, such as education, anger management courses, drug and alcohol counselling.
Denunciation: Aims to show society’s disapproval of the offenders actions. This could be achieved through a harsh sentence.
Community protection: Aims to keep society safe from the actions of an offender. The only way protection can be assured is through imprisonment.
Punishment: Society should feel as though they have had revenge on the offender. The punishment must be appropriate to the offence.
Deterrence (specific or general): Specific = aiming to discourage the offender from reoffending in the future. General = aiming to discourage society from committing a similar offence.

40
Q

What is defamation?

A

Defamation is the loss or damage of someone’s reputation, due to the spreading of rumours through a statement or public material.

41
Q

What are the elements of defamation?

A

1 - The statement was defamatory
2 - The defamatory statement refers to the plaintiff
3 - The defendant communicated the defamatory statement to a third person

42
Q

What are junctions?

A

An injunction is an order awarded against the losing party in a civil action that commands or prohibits certain behaviour. An injunction can be either:
Restrictive: ordering a person to stop/refrain from doing something.
Mandatory: ordering a person to do a particular act.

43
Q

What are damages?

A

Damages attempt to compensate the plaintiff for the jury or damage suffered. It may not be possible to do this in a physical sense, but damages can be given to make up the fact that the person will suffer in the future.

44
Q

When is each damage awarded to the plaintiff? There are five.

A

1) Specific/special - An award of money for thing that can be calculated exactly. (medical bills)
2) General - An award of money to try to compensate for pain, suffering and future loss.
3) Aggravated - Awarded in defamation cases to compensate for the damage of reputation.
4) Nominal - Awarded when a plaintiff has had their rights breached but no real loss occurred.
5) Exemplary - A plaintiff is awarded a significant sum of money in order to make an example of the defendant.

45
Q

How well do damages restore the plaintiff back to their original position?

A

1) Specific/ special - Financially or economically
2) General - Doesn’t restore but rather compensates the plaintiff of their loss
3) Doesn’t restore but rather compensates the plaintiff for the damage of their reputation.
4) Acknowledges that the plaintiff’s rights were breached and that they were right.
5) Returns them financially but also mainly tries to compensate the plaintiff for their loss.

LAW (1 decks)

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