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Criminal law > Criminal law > Flashcards

Criminal law Flashcards

1
Q

What are legal rules also know as?

A

Laws

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2
Q

Who can make laws

A

Parliament - common wealth parliament/ state parliament as well as courts however they can only make laws if no law already exists

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3
Q

Who is the law applied to

A

everyone as no one is above the law

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4
Q

Who enforces legal laws

A

Police, court and parliament

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5
Q

Who enforces non legal laws

A

Schools, sporting clubs, family

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6
Q

Why do we need the law

A

Establishes a code of conduct/ standards of acceptable behaviour e.g. Contract law, murder, robbery

Protect the community from harm e.g. Wearing seat belts/ texting while driving

Reflect changing values/ circumstances e.g. trading hours, same sex marge and cyberstalking

Assists resolving disputes

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7
Q

What makes a law effective:

A
  • Clear and unambiguous
  • Acceptable
  • Able to be changed and stable
  • Enforced and known
  • Reflects society’s values
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8
Q

What are the laws made by parliament called?

A

statutes, legislation, acts of parliament

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9
Q

Who is the main law making body and why

A

Parliament is the main law-making body in Australia, as they are voted in to reflect society’s values

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10
Q

What are the laws made by court called

A

common law or precedent

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11
Q

What laws does federal or common wealth parliament make

A

Make laws that effect all of Australia such as military, currency, taxation, immigration

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12
Q

Who represents the crown

A

Governor general

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13
Q

What are the two parliaments called

A

Senet (upper house) house of representatives (lower house)

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14
Q

Which house has majority seats

A

Rep with 151 seats, senate has 76 seats

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15
Q

What laws dose the state make

A

Makes laws on education, health and hospitals, roads, transport, criminal law, ambulance and police
Governor represents the crown at state leave
There are two leaves

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16
Q

What are the two houses called for state

A

Legislative council (upper house)
Legislative assembly (lower house)

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17
Q

What dose local make laws on

A

Makes laws on parks, rubbish, pet registration, parking, childcare

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18
Q

what is a concurrent power

A

taxation and marriage that both federal and state handle

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19
Q

How laws are made through parliament

A

Starts in the representative house as the government is formed in the lower house (goes through easily, as they have majority)
Its harder to go through, government doesn’t have majority and needs more people to get involved as there are more diverse views
Has to pass through both houses - high and low
Has to be accepted by the Governor general

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20
Q

What is a crime

A

Criminal law: an area of law that protects the community by establishing and defining what crimes are
It also sets down sanctions (i.e. penalty’s) for people who commit them

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21
Q

What is a crime

A

A crime: is an act (purposeful, intentional action by the accused) or an omission (a failure to act or failure to do something. E.g. Leaving a child in the car) that:
○ Breaks an existing law
Is harmful to an individual/ society as a whole

22
Q

What is a victimless crime

A

A crime that doesn’t effect anyone

23
Q

Who is responsible for criminal law

A

Criminal law is the responsibility of the states however, the commonwealth dose have the power over some criminal law matters

24
Q

What crimes act is criminal law

A

The criminal law of Victoria is contained in the crimes act 1958. The Act came into operation in 1958. Go to Crime act 1958 - Austlii

25
Q

What is criminal responsibility

A

Criminal responsibility: In Victoria, a child under 10 wcannot be charged with having committed a criminal offence. They cannot be held criminal responsible

26
Q

Why under the agfe of 10 can a child not be charged

A

As under the age of 10 they don’t have the mental capacity to understand what they are doing, until 2026 where it is changing to the age of 12.

27
Q

What are the two elements a crime requires

A
  1. A physical act - actus reus (stabbing someone)
    1. A mental act - mens rea (types: the intention, negligence and reckless)

They must both be prove have been committed

28
Q

3 types of mens rea

A

Reckless: knowing your actions may cause harm but doing it anyway
Intentional: purpose/ determination
Negligence/ careless: Failure to take proper care over something. example: man slaughter

29
Q

Who are the two parties in a court case

A

Prosecution (the government) vs accused

30
Q

What is the burden of proof

A

In criminal proceedings the prosecution has the burden of proving that the accused is guilty (also known as the onus of proof). The accused is presumed innocent until proven guilty.

31
Q

Who is responsible for bringing prosecutions

A

The director of public prosecution DPP

32
Q

Standard of proof criminal

A

Beyond reasonable doubt - in criminal trials the prosecution must prove that the alleged offender is guilty of a crime beyond reasonable doubt. An average person on the streets would believe in the case.

33
Q

Standard of proof Civil

A

Balance of probability’s - The outcome of civil disputes, which requires that a dispute be decided in favour if the party whose claims are more likely to be true.

34
Q

Presumption of innocence

A

○ A person is presumed to be innocent until he or she is proved to be guilty
○ Everyone is entitled to be treated as innocent
The burden is placed on the prosecution to prove guilt and a person cannot be found guilty of a crime until there is sufficient evidence to prove that the person committed the crime beyond reasonable doubt

35
Q

What is strict liability in crimes

A

Strict liability: is where having a guilty mind or men’s rea does not need to be proven

For example: running a red light, selling alcohol to minors, traffic infringements, parking fine, speeding

36
Q

How many elements of murder are there

A

6 that must be beyond reasonable doubt

37
Q

What are the 6 elements of murder

A
  1. The killing was unlawful (lawful e.g army, police officer in line of duty, person acting in self-defence
    1. The victim was a human being (a living person - not an animal or unborn baby)
    2. The accused was a person over the age of discretion (over 10yrs old)
    3. The accused caused the victim’s death (must have contributed significantly and substantially to a person’s death)
      Would the victim have died if not for the accused actions
    4. The accused was a person of sound mind (knew what they where doing)
      There was malice aforethought
38
Q

What is Malice aforethought

A

the conscious intent to cause death or greavious bodily harm to another person before a person commits the crime

This is required for the crime to be a murder. Otherwise the crime is a manslaughter.

39
Q

What dose aforethought mean

A

premediated, previously in thought

40
Q

What is the difference between manslaughter and murder

A

Malice aforethought

41
Q

What is voluntary manslaughter

A

○ An intentional killing (or intent to cause serious harm) that is accompanied by mitigating factors. (because of the cerium stances it can reduce it from murder to voluntary manslaughter)
○ Sometimes referred to killing ‘in the heat of passion’
○ There is general provocation or lack of premeditation (pre plan to kill). Provocation, which causes anger or rage; however, there are other factors that may apply.
E.g. a person who is provoked in an argument to the extent that they become enraged and immediately lash out at the victim, killing them in the heat of the moment.

42
Q

What is the different punishment for murder and voluntary manslaughter

A

possibly less years in jail

43
Q

Involuntary manslaughter

A

No intention to kill

44
Q

Types of involuntary murder

A
  1. The accused intentionally inflicted harm on the victim and, although there was no intention to kill, it was severe (caused death).
    1. The death was caused through criminal negligence e.g. Leaving kids in the car
      The accused caused the death whole committing an unlawful, dangerous act.
45
Q

Difference between voluntary and involuntary murder

A

The only difference between murder and involuntary are the mitigating factors in involuntary.

46
Q

What is culpable driving

A

Culpable driving = a person who drives a motor vehicle negligently, recklessly or while under the influence of drugs or alcohol and causes the death of another person. This is a homicide, indictable offence. Always results in death

47
Q

What two elements must be proven for someone to be found culpable driving

A

The accused was the driver of a ,motor vehicle (substantial control over the movement of a motor vehicle
The accused was driving culpably.
Must be proven beyond reasonable doubt

48
Q

The accused culpably caused a person’s death while driving the motor vehicle. 3 factors

A

Driving recklessly
Driving negligently
Driving under the influence of drugs or alcohol

49
Q

What dose driving recklessly mean

A

this is , consciously and unjustifiable disregarding a substantial risk that another person would die or be seriously injured (e.g. driving ay a high speeds in bad weather)

50
Q

What dose driving negligently mean

A

that is, failing (to an unacceptable degree) to observe a reasonable standard of care that a responsible person would have observed in similar circumstances, and others in the community have a right to expect (e.g. Driving while fatigued such an extent that the driver ought to have known there was a risk of falling asleep)

51
Q

What dose Driving under the influence of alcohol or a drug mean

A

Driving under the influence of alcohol or a drug - that is, to the extent of being incapable of properly controlling the vehicle.

Criminal law (3 decks)

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