Law

Question 1

What is Law?

Answer 1

A complex body of rules that establish the legal rights and obligations of individuals and institutions.

An obligatory rule of conduct, governed by sanctions, created by am accepted authority in society.

Question 2

1. Name and define the two sources of law in Australia:

Answer 2

Statute Law - parliament made law OR legislation made law

Common Law - judge made law

Question 3

2. Explain the three Common Law presumptions:

Answer 3

1. Irrebutable presumption
2. Rebuttable presumption
3. Presumptions of fact

Question 4

3. Explain the difference between civil and criminal law:

Answer 4

Criminal law is to protect society as a whole and Civil law is to regulate conduct between individuals.

Question 5

4. List the Courts in Victoria that Police are more likely to deal with:

Answer 5

Magistrates Court
County Court
Supreme Court

Question 6

5. Explain the three main functions of the Magistrates’ Court:

Answer 6

1. To hear and determine all summary offences
2. To hear and determine all your indictable offences which may be heard and determined summarily
3. To conduct committal proceedings into indictable offences and either direct the accused to be tried / remanded in custody until garnered bail or discharge the accused

Question 7

What are the two irrebuttable presumptions?

Answer 7

1. A child under 10 cannot commit a crime
2. A person is presumed to know the law

Question 8

Provide the 5 main rebuttable presumptions:

Answer 8

1. A child btw 10-14 is presumed to not be able to form men’s rea (guilty mind) which is an essential element of crime
2. Each person is presumed innocent until proven guilty
3. Each person is presumed sane until proven otherwise
4. Voluntary drunkenness is no defence to a charge
5. Liquid is presumed to be liquor. Does not need to be analysed in the instance of a charge.

Question 9

Define Presumptions of fact:

Answer 9

Facts that are generally agreed to without needing evidence.

A decision that can be drawn from the existence of other available facts and that is usually agreed to without the need for further evidence.

Question 10

Who are the parties involved in a criminal case?

Answer 10

Informant
Accused
Complainant

Prosecutor
Defence counsel

Question 11

Who are the parties involved in a civil case?

Answer 11

Plaintiff
Defendant

Question 12

What is the standard of proof required for a criminal proceeding?

Answer 12

Beyond reasonable doubt

Question 13

What is the standard of proof required for a civil proceeding?

Answer 13

On the balance of probabilities

Question 14

How many jurors are present in criminal and civil proceedings?

Answer 14

Criminal - 12
Civil - 6

Question 15

Who presides / is the decision makers at the Magistrates / County and Supreme Courts?

Answer 15

Magistrates Court - The Magistrate
County Court - The Judge
Supreme Court - Judge and Jury of 12

Question 16

What is Actus Rea?

Answer 16

Means a guilty Act associated with an offence

Question 17

Define Men’s Rea:

Answer 17

Means the guilty mind - the mental aspect of an offence

Question 18

For any decision made by a MOP, it needs to be in line with the S.E.L.F test. Explain:

Answer 18

S - Do my actions withstand Scrutiny?
E - Are they Ethical?
L - Are they Lawful?
F - Are they Fair?

Question 19

What offences are seen in the Magistrates Court?

Answer 19

Summary offences OR
Indictable offences that are heard summarily

Question 20

Where are indictable offences heard?

Answer 20

County or Supreme Court

Question 21

What is the general rule for ascertaining whether an offence is an indictable or a summary offence?

Answer 21

Refer to the Crimes Act. If an offence does not state to be indictable than it is usually a summary offence.

Question 22

What is a statute of limitations?

Answer 22

Is a law that refers to the limitation / time period.
Summary - usually 12 months
Indictable - None. If a person commits murder today they can be charged any time in the future.
Children- 6 months for summary

Question 23

What is IOTS in the Magistrates Court?

Answer 23

Indictable Offences Triable Summarily

Question 24

Why is it necessary to ascertain the classification of an offence?

Answer 24

To differentiate between indictable and summary offences.
- to identify mode of trial
- to identify the relevant arrest and search powers
- to select the correct warrant or summons procedure
- to identify what paperwork is required

Question 25

Explain what is meant by ‘statute of limitations’:

Answer 25

Refers to the limitation period. The maximum period of time after an offence is committed within which legal proceedings can commence. - 12 month for most summary offences. - Indictable offences have no limitation period.

Question 26

Section 29 of the Criminal Procedures Act 2009 explains the criteria that must exist before an IOTS matter can be heard in the Magistrates Court. What must occur?

Answer 26

1. The accused must consent to the summary hearing 2. The court considers whether the offence is appropriate to be determined summarily

Question 27

Sect 7 of the sentencing Act lists the options available to the court if it finds a person guilty of an offence. List three:

Answer 27

- record a conviction and order a term of imprisonment - record a conviction and order detention in a mental health service - record a conviction and make a drug treatment order - impose a fine - dismiss the charge without conviction

Question 28

Section 5 of the Sentencing Act provides reasons for penalties and sanctions to be imposed by the courts. List three of these options:

Answer 28

- deter the offender or other persons from committing offences of the same or a similar nature - to protect the community from the offender - punish the offender to an extent which is just in the circumstances

Question 29

What is the maximum term of imprisonment the Magistrate and County court can impose for an indictable offence or indictable offence triable summarily?

Answer 29

Magistrates - 2 years County - Dictated by the nature of the offence

Question 30

Explain a cumulative sentence and confirm what the max term of imprisonment that can be imposed by the Magistrates court?

Answer 30

Cumulative sentence means that the terms of imprisonment can be added together. The longest cumulative sentence a Magistrate can impose is 5 years. Summary offence - 2 years Max term not specified - 2 years

Question 31

What is evidence?

Answer 31

Is the means by which facts are proved

Question 32

Explain section 55 of the Evidence Act and how it relates to the admissibility of evidence in court:

Answer 32

The evidence presented must be relevant to the matter under enquiry.

Question 33

Explain hearsay evidence:

Answer 33

A statement that is made by a person other than the witness. Considered unreliable evidence.

Question 34

What are some exceptions to the hearsay rule?

Answer 34

Numerous - admissions and confessions - confessions made through interpreter - bail applications - dying declarations

Question 35

What is a Fact in issue?

Answer 35

When a fact in a case is not agreed to by either the prosecution or the defence.

Question 36

A fact in issue can be proved 2 ways. What are they?

Answer 36

Evidence Admissibility

Question 37

Who is the Principal offender?

Answer 37

The person who committed the crime.

Question 38

What is the definition of a child in the court room?

Answer 38

A person who at the time of the alleged crime was under the age of 18 but of or over the age of 10

Question 39

What is the points of proof?

Answer 39

Each and every point of proof specific to the offence must be proved by the prosecutor for any charge to be brought before the court.

Question 40

There are many rules that determine admissibility. Exclusionary rules are generally designed to assist in ascertaining the truth by excluding evidence that is unfairly prejudicial or unreliable. What are two?

Answer 40

- Hearsay - Opinion - Character - Discretion to exclude evidence

Question 41

Can witnesses give their opinion when interpreting the evidence being provided?

Answer 41

No. Interpreting the evidence is the role of the court.

Question 42

What are two common exceptions to the Opinion rule?

Answer 42

1. Lay opinion (a persons perception eg. accused age or height) 2. Specialised knowledge

Question 43

Can an MOPF conduct a VARE interview?

Answer 43

No. Only those that have passed a VARE training course can complete them. Usually SOCIT unit in relation to children or cognitively impaired persons. Third party must be present in interview room.

Question 44

Name 2 types of Evidence:

Answer 44

- direct - circumstantial - real - documentary - corroborative

Question 45

Explain Actus Reas:

Answer 45

- Where an ‘act’ is done - Where an ‘act’ is not done. Eg. Not providing adequate food or water for kids

Question 46

Explain Mens Rea:

Answer 46

Describes the state of mind of the accused at the time of the offence - ‘guilty mind’.

Question 47

Define culpability:

Answer 47

To be culpable is to be ‘blameworthy’. Whether a person realised the wrongful nature of their actions and should therefore take responsibility.

Question 48

Finish the sentence: For an accused person to be criminally responsible for committing an offence it must be demonstrated that -

Answer 48

The person committed both the physical act and mental elements of that act.

Question 49

Finish the sentence: For an accused person to be criminally responsible for committing an offence it must be demonstrated that -

Answer 49

The person committed both the physical act and mental elements of that act.

Question 50

List 2 states of mind capable of amounting to mens rea:

Answer 50

- intention - recklessness - knowledge - belief

Question 51

Describe recklessness:

Answer 51

The accused foresaw the probably consequences of their actions and then followed through with the act anyways.

Question 52

Describe Intention:

Answer 52

The accused acted with the aim of purpose of committing the conduct which forms the offence.

Question 53

All indictable offences must prove Actus Rea and Mens Rea. True or False?

Answer 53

True

Question 54

How can Mens Rea be proved?

Answer 54

1. Admissions 2. Overt Physical acts

Question 55

What are the 3 defences of crime?

Answer 55

1. Impairment (mental) 2. Mistake of Fact 3. Automatism

Question 56

The Crimes Act provides degrees of responsibility of participants in a crime. List 3 types of participation:

Answer 56

1. Using an innocent agent 2. Vicarious liability 3. Intentional assisting, encouraging or directing 4. Entering into an Agreement or understanding 5. Being an accessory 6. Concealing offences for benefit

Question 57

What is the significance of demonstrating a persons overt physical act?

Answer 57

It can show guilty intent and make a strong case for the prosecution.