Criminal Law Flashcards
(104 cards)
1
Q
Purpose of Criminal Law- protect individuals
A
Protect individuals from physical, psychological and economic harm.
2
Q
Example of protecting individuals
A
eg.) criminalizing actions such as assault, threatening behavior, wage theft
3
Q
Purpose of Criminal Law-protect society
A
Protects society by defining prohibited behaviours and outlineing sanctions to deter people from illegal conduct
4
Q
Example of protecting society
A
eg.) criminalizing drug use and imprisoning people who traffic drugs of dependence
5
Q
Purpose of Criminal Law- protect property
A
protect property from harm
6
Q
Example of protecting property
A
eg.) criminalizing theft of personal possessions and the destruction of the environment
7
Q
Purpose of Criminal Law- protect justice
A
Protect justice by providing proper processes to enforce law and penalize offenders
8
Q
Example of protecting justice
A
preventing victims from taking justice into their own hands,
sentencing offenders with proportionate sanctions,
upholding the rule of law
9
Q
Crime
A
an act / omission that violates an existing law
cases harm to an individual/ society
punishabale by law
10
Q
Actus Rea - elements of a crime
A
“guilty act”; the physical element of the crime
the prosecution must prove that the accused physically committed the wrongful act/inaction
11
Q
Mens rea- elements of a crime
A
’'’guilty mind’; the mental element of the crime
The prosecution must prove the accused knowingly, intentionally, negligently or recklessly committed the wrongful action/ inaction
12
Q
Presumption of innocence
A
All accused persons to be considered and treated as innocent until the charge has been proven by the prosecution beyond reasonable doubt
13
Q
criminal burden
A
prosecution bears the burden of proving the guilt of an accused.
14
Q
standard of proof
A
standard to which the jury and judge believe the crime was committed
beyond reasonable doubt -no other logical /rational conclusion
15
Q
presumption of innocence being upheld
A
Right to apply for bail and await trial in their community (with certain conditions)
prior convictions of accused cannot be revealed to court until the sentencing process
right to legal representations
right to remain silent
16
Q
presumption of innocence being limited
A
counter terrorism law makes it more difficult for people who have been previously charged with convicted terrorism offence to be granted bail when charged with another terrorism offence
17
Q
strict liability
A
do not require the mens rea element of crime to be satisfied to find accused guilty
prosecution only needs to prove the actus rea
18
Q
honest and reasonable mistake - strict liability
A
the accused honestly believed certain facts existed at the time of the offence which if true they were not committing an offence
19
Q
age of criminal liability
A
the minimum age a person must be charged with an offence
-the age of 10 cannot be charged with a crime
-person aged 10-13 the doctrine of doli incapax applies
20
Q
Doli incapax
A
Child 10-13 is not capable of forming criminal intent
21
Q
prosecutions rebut against doli incapax
A
medical and psychological assessments can help determine whether a child has the intellectual and moral capacity to know their actions are criminal
22
Q
who can be charged with crime
A
a person aged 14 or older can be charged with a crime
23
Q
classifying crimes according to their nature
A
Division A - crimes against person (homicide, sexual offences)
Division B- crimes against property (arson, theft, property damage)
Division C -drug offence(trafficking, using, possessing)
Division D-public order and security offences
Division E-justice procedure offences
Division F- Other offences
24
Q
Other types of crimes-Cyber-crime
A
a acriminla offence in which the use of computers /ICT is an essential and central part of teh offending
eg.) hacking financial information, intrdoucing viruses
25
Other types of crimes- hate crime
a criminal offence moivated by predjudice, intolerance or bias towrds the victim based on personal characteristaions
eg.) raciali vilificatuon, gender based discriminastion
26
Other types of crimes-organized crime
a criminal offence undertaken in a planned and ongoing manner by organized syndicates/gangs
eg.) drug manufacturing and trafficking
27
Other types of crimes -juvenile crime
a criminal offence undertaken by person aged 10-18
28
Other types of crimes -white collar crime
a criminal offence undertaken by people who work in government ,business /corporate areas
eg.)investments scams , tax evasion, theft
29
types of offences: summary offence
-minor/less serious offences
-heard in mag court no jury
-law enforcements sometimes have the power to issue warning / on the spot fines rather than having matter come to court
-eg.)disorderly conduct, drink driving, minor assault
30
types of offences: indictable offences
-more serious criminal offences
-heard in county court/supreme court of Victoria
-generally heard by judge and jury if the accused pleaded not guilty
eg) murder ,manslaughter ,culpable driving
31
benefits of hearing indictable heard summarily
faster and cheaper
maximum term of imprisonment mag can set is 2 years for a single offence and 5 years for multiple offences
32
requirements of hearing indictable heard summarily
offence must not be punishable by a maximum term exceeding 10 years / fine greater than 1200 penalty units ($230,000)
accused must consent
court must determine if it is appropriate (magistrate in the committal proceeding decides this )
33
principle offender
person who commits the offence by carrying out the actus reas with requisite mens rea
person can also be considered principle offender if they are involved in the commission of the crime .
They do not have to be physically present at the crime scene be involved
34
(principle offender)
concept of being involved in section 323 of crimes act 1958 (vic)
intentionally assisting, encouraging , or directing another to commit an indictable offence
making an agreement with another person to commit an indictable offence together
35
types of offences: indictable heard summarily
less serious indictable offences can be heard summarily in the mag court
includes causing criminals damages less then 100,000, theft less than 100,00 or less serious assault
36
Accessory
knows/ believed that a person has committed a serious indictable offence and then acts to prevent
the arrest ,prosecution, conviction or punishment of the person
an accessory can be found guilty of an offence regardless of whether the principle offender is found guilty
37
murder
the unlawful and intentional killing of a human being by a person who acted voluntarily and without any lawful justification
38
elements of murder- death of a human
the victim must be a living person
39
elements of murder- voluntary act
the accused must have had a conscious and deliberate control of their bodily movements when committing the acts that killed the victim
40
elements of murder- causation
the prosecution must prove the direct unbroken casual link between the accused actions and the death of the victim
41
causation - substantial and operating cause of death
if at the time of the death the original violence committed by the accused is still a significant contributor, the death is the result of the accused act even if some other cause was also operating
42
causation- have made it a natural consequence for victim to seek escape
the conduct of the accused induces in the victim a well-founded apprehension of physical harm such as to make it a natural consequence that the victim would seek to escape and the victim is injured while escaping
43
elements of murder- intervening acts
may be an intervening act (novus actus interveniens) that breaks the chain of causation
-An act of nature such as a tidal wave or striking of lightning. the act of nature must be spontaneous irregular and unpredictable
-medical treatment must be so palpably or overwhelmingly bad to be considered an intervening act
44
egg shell rule
the accused must take their victim as they find them. unless the victim acts in an unreasonable way, their particular beliefs, allergies or sensitivities are not considered to be an intervening act
45
malice aforethought
the desire to harm someone is previously thought about
46
grievous bodily harm
really serious bodily injury, that results in any permanent or serious disfiguring of the person
47
malice aforethought established
if the accused specifically intended to kill the victim or
intended to cause the victim grievous bodily harm
48
reckless murder
the accused knows that their act will probably or likely kill or grievously injure someone but they nevertheless go and commit that act with reckless indifference
49
When facing a murder charge, the accused can: (Defences to murder)
1. Cast doubt on one of the elements of murder so that the prosecution cannot prove the offence beyond reasonable doubt
2. Raise a specific legal defence to justify their action.
If the accused raises a successful defence, then their act of killing the victim is not unlawful.
.
50
Onus of proof
1. The accused must first present sufficient evidence to suggest that the defence is relevant and applicable to the case (evidentiary burden)
2. Then, the responsibility falls upon the prosecution to disprove the elements of the defence beyond reasonable doubt (legal burden)
51
Self defence
The accused can raise this defence if they:
1. Believed that their actions were necessary to protect themselves or someone else from death or grievous bodily harm
2. Perceived their actions to be a reasonable response in the
circumstances
52
self defense Step 1: put yourself in the shoes of the accused and examine the situation from their perspective
Did the accused have a particular frailty or weakness?
Was there a difference in body size or age between the accused and victim?
Was the victim holding a weapon?
Was there a history of violence between the accused and victim?
53
self defence :step 2
did the accused honestly believe that their conduct was necessary to defend themselves? It doesn't matter if the belief is mistaken, only that it was genuinely held in their minds.
54
self defence: step 3
Based on how the accused saw or perceived the situation, was their response reasonable?
55
Duress
The accused can raise this defence if they believed that:
1. A threat of death or grievous bodily harm will be carried out unless they commit a 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.
Duress cannot be used if the accused is voluntarily associated with another person for the purpose of carrying out criminal activity (e.g., joining a criminal syndicate and being ordered to murder)
56
Sudden or extraordinary emergency
The accused can raise this defence if they believed that:
1. There was a sudden or extraordinary emergency involving death or grievous bodily harm
2. Their actions were the only way of dealing with the situation
3. Their conduct was a reasonable response to the situation
57
Trends and statistics in Victoria (murder)
general downward trend
during the five year Period
1 July 2016- 30 June 2021
97 people were sentenced for murder (2.8% of all cases sentenced in the county court and supreme courts)
approx. 91% of those convicted for murder were male
approx. 73% of offenders were aged between 25-54
58
Victoria statistics (Number of offenders sentenced for murder (Victoria) 2017-2022
97
59
Number of recorded murder offences per 100,000 people (Victoria)
2019 0.9
2020 0.9
2022 0.8
60
Number of recorded murder offences per 100000 people
(Northern Territory)
2019-1.6
2021-2.0
2023-2.4
61
Number of recorded murder offences (Victoria)
2019. 59 .
2020. 62
2022 51
62
Number of recorded murder offences
(Northern Territory)
2019.- 4.
2021.- 5
2023 - 6.
63
Sanction for murder
* The Victorian Parliament has set a standard sentence of 25 years imprisonment or 30 years
if the accused is an emergency worker or custodial officer.
* The judge must consider the standard sentence before applying the other sentencing
factors (e.g., guilty plea or the accused's personal circumstances)
64
Impacts of murder on victim and their family and friends
• Loss of life for the victim.
• Long-lasting psychological harm for the victim's family and friends such as shock, grief, fear, anger, heightened stress and emotional trauma.
• The victim may have been the primary financial provider for a family.
•Media scrutiny can compound the negative feelings felt by family and friends.
65
Impacts of murder on society
• Murder erodes public confidence in the ability of the police, the government and the criminal justice system to protect the public.
• Murders can often spur the community into grassroot activism.
• Rising trends in murder may compel governments to pass harsher laws in an effort to
reduce crime.
66
Impacts of murder on the accused
• The offender will face a term of imprisonment, potentially for life.
• The offender will incur legal costs associated with defending themselves in court and then experience loss of income.
The accused may experience shame, guilt, regret and remorse.
The court process may be lengthy and the accused will live in a state of uncertainty .
• Upon release, the accused will have difficulty reintegrating into society due to high levels of stigma.
67
Culpable
Culpable (adjective): deserving of blame or condemnation; being responsible for something bad occurring
68
Elements of culpable driving causing death
the prosecution must prove beyond reasonable doubt:
1. The acused was driving a motor vehicle (actus rea)
2. The driving was culpable (mens rea)
3. The cupable driving caused the death of another person (actua
rea)
69
Motor vehicle
A motor vehicle is a vehicle that is propelled by a motor and is normally used on a highway.
This includes cars, trucks, buses and motorbikes.
This does not include trains, trams, motorised wheelchairs or bicycles
70
Driving
Driving means that a person has substantial control of the movement and direction of the motor vehicle.
71
Culpable driving (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 that risk
(e.g., speeding in poor conditions)
72
culpable driving ( negligently)
the driver fails, to a high degree, to observe the standard of care that a reasonable person would have observed in the same situation
(e.g., driving whilst extremely fatigued - they ought to have known that they would likely fall asleep)
73
culpable driving ( under the influence of drugs or alcohol )
the consumption of the alcohol or drugs must render the driver incapable of properly controlling the vehicle
(e.g., using crystal methamphetamine for several days without sleep and then veering on the road)
74
driving definition challenged if:
The vehicle was not fully operational (e.g., dystunctional engine, steering Wheel or brakes)
The vehicle was not propelled by its own motor force (e.g., being towed, coasting downhill)
The vehicle was stationary (e.g., stopped at traffic lights).
75
causation culpable driving- reckless or negligent manner
the prosecution must prove that the reckless/negligent act was a substantial and operating cause of the victims death
76
causation culpable driving- affected by alcohol or drugs
he accused was so affected by alcohol or drugs they were incapable of controlling the car
the prosecution must prove that the accused's driving was a substantial and operating cause of the victims death
77
'driving' may be contested If
• The vehicle was not fully operational (e.g., dystunctional engine, steering wheel or brakes)
• The vehicle was not propelled by its own motor force (e.g., being towed, coasting downhill)
• The vehicle was stationary (e.g., stopped at traffic lights).
78
Automatism (defence to culpable driving)
• The accused can rely on this if at the time of the offence, they had a total loss of control over their bodily movements (i.e. were not conscious or aware of what they were doing) and therefore had an involuntary state of mind.
For example:
• If the accused commits the offence whilst sleepwalking
• If the accused commits the offence while suffering from a concussion or during an epileptic seizure
• If the accused was suffering from a side effect of the proper use of medication
79
Fairness
All people can participate in the justice system and its processes should be impartial and open
80
Fairness (impartial process)
All personnel within the legal system system including the judges/ magistrate, jury members, court personnel must act in a way that is impartial +independent. to show no bias or discrimination
81
Fairness (open process)
Courts processes must be transparent- allow media reporters, clear guidelines for sentencing and regulations for selection and role of the jury
82
Fairness (participation)
Individuals must be able to effectively participate in the legal system
being aware of charges laid against them, having time to prepare their case, being aware of the evidence brought against them
83
Equality
All people engaging in the justice system should be treated in the same way. if the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow all to engage with the justice system without disparity or disadvantage
84
same treatment (formal equality)
All individuals are treated the same and given the same level of support regardless of their personal difference or characteristics
eg.) race, religion,gender,identity or age
85
different treatment (substantive equality )
If the legal system did treat people in the same way but in doing so causes disadvantage/ disparity then adjustments should be put in place to allow people to participate in the JS
86
Access
All people should be able to enegage with the JS and its processes on an infromed basis.
87
Access- Engagement (physical access )
The location of the courts in victoria
88
Access- Engagement (financial access )
Vic legal aid is limited in its fundings and thus ability to support individuals who do not have the means to pay for legal representation
89
access- Informed basis (Education)
Individuals with higher levels of education are generally more informed about their rights+ more thorough awareness of the legal system
90
Access-Informed basis (legal support services)
Having free access to legal support services can help people be more informed about their rights
91
Access Informed basis (legal representation)
Having legal representation is one of the most effective ways a person can be informed about their rights + legal processes
92
sex of offenders from 1st July- 30 June 2021
13% female
87% male
93
age of offenders from 1st July 2015-30 June 2021
56% - 25 to 54
37%
7%
94
how many offenders were sentenced for culpable driving causing death in 2017-2022
73
95
how many offenders received an immediate custodial sentence for culpable driving causing death in 2017-2022
100%
96
number of recorded driving causing death offences (vic)
2018-98
2019-82
2020-102
2021-80
2022-83
97
number of recorded driving causing death offences per 100,000 population (vic)
2018-1.5
2019-1.3
2020-1.5
2021-1.2
2022-1.3
98
number of recorded driving causing death offences (NT)
2018-5
2019-1
2020-1
2021-7
2022-8
99
number of recorded driving causing death offences per 100,000 population (NT)
2018-2.0
2019-0.4
2020-0.4
2021-2.8
2022-3.2
100
impacts of culpable driving causing death on family + friends+ victims
death for victim
grief shock anger
PTSD
financial stress
if involved in accident- physical injuries
101
impacts of culpable driving causing death on society
guilty
PTSD
decrease job prospects
license suspension
difficulty reintegrating into society
102
impacts of culpable driving causing death on accused
distrust other road users and safety rules
government looks inept
loss of faith in institutions
sanctions that clearly outlined-help deter illegal behavior
changes to road-adjust tax payer money
new speed limits
103
non-parole period
the minimum time the offender must be held in jail
104
Sanction for culpable driving causing death
level 3 imprisonment (20 years maximum) or a level 3 fine or both.
The standard sentence for an offence under is 8 years.
