outcome 2-Proving guilt

Question 1

What is a crime?

Answer 1

A crime is an act
(i.e.undertaking an action) or omission (i.e.failing to undertake an action) that is against an existing law,
harmful to an individual or to society, and punishable by law (by the state

Question 2

what are the purposes of of criminal law?

Answer 2

Protection of society
Deterrence of crime
Protect justice and the rule of law
Set minimum standards of behaviour

Question 3

what is protection of society?

Answer 3

Protecting society is one of the main purposes of criminal law. It aims to reduce danger and chaos in society and prevent individuals from harm.
When we think of why we have criminal laws, most people will think straight away about the safety of themselves and the community.
Criminal law assists in achieving and maintaining social cohesion and order.

Question 4

what is detertion

Answer 4

The act of discouraging an offender, or other individuals, from reoffending (or offending) through the imposition of a criminal sanction.

Question 5

What is the Deterrence of crime?

Answer 5

One of the purposes of criminal law is to prevent people from committing crime by deterring them.
As criminal law comes with serious consequences for the offender, it is hoped that the fear or risk of being caught serves to prevent people from committing crimes or reoffending.

Question 6

What is Protecting justice and the rule of law?

Answer 6

Our criminal laws assist in protecting justice and the rule of law.
Justice is the idea that people are to be treated in a manner that is fair, that people should be held accountable for their actions, and adequately compensated when they have suffered harm.
The rule of law is the fundamental principle dating back to the Magna Carta that no one is above the law and that laws establish a framework for our society, defining and regulating acceptable behaviour.
We must also remember that justice is intertwined with the principles of justice which apply to all parties – victim and accused. Society does not need to seek revenge or justice themselves, as our criminal laws serve that purpose. In addition, justice is also afforded to accused people.

Question 7

What is Set minimum standards of behaviour?

Answer 7

Criminal law outlines the behaviours that are unacceptable – the crimes – and also outlines the consequences of committing those crimes – the sanctions.
As a democratic society, we have a communal understanding of what kinds of behaviour is right and what is wrong.
As a community we have the ability to influence the laws that govern criminal behaviour, and so laws will be amended to take into account new behaviours that we consider to be unacceptable e.g. texting while driving and cyberbullying.

Question 8

What is the presumption of innocence?

Answer 8

One of the most important principles of the criminal justice system.
It is a guarantee from the state to its citizens that if they are accused of a crime, they will be considered, and treated (as far as possible) as being not guilty until proven beyond reasonable doubt.

Question 9

What is the beyond reasonable doubt?

Answer 9

Beyond reasonable doubt is the standard of proof (level of proof) required to prove that an accused is guilty.

There has to be enough evidence that there is no reasonable doubt that the accused is guilty.

Question 10

What is the burden of proof?

Answer 10

In a criminal case, the prosecution has the burden of proof, meaning they have the responsibility of proving that the accused is guilty.
An accused does not have to prove that they are innocent.

Question 11

What is the presumption of innocence?

Answer 11

The presumption of innocence is a protected human right in the International Covenant on Civil and Political Rights (1966) and the Charter of Human Rights and Responsibilities 2006 (Vic).

Question 12

How is the presumption of innocence? protected in the CJS?

Answer 12

An accused has the right to silence

The accused’s previous convictions cannot be revealed to the court until the sentencing process begins.

A person who has been convicted or found guilty of a crime has the right to appeal.

The standard of proof must be met. Required to present sufficient evidence in court to prove the accused is guilty beyond reasonable doubt.

An accused has the right to legal representation in court.

An accused who has been arrested and charged has the right to apply and be granted bias.

Police officers are required to reasonably believe a person has committed a crime before arresting them.

Question 13

How are crimes classified?

Answer 13

By the nature of the offence/what/who it impacts

By the offender.

By the seriousness.

Question 14

What does classifying crimes by the nature of the offence include?

Answer 14

This method of classifying crimes is based on whether the wrongful action was against a person, property, the wellbeing of society as a whole, or even the criminal justice system it self.
Popular method among law enforcement agencies e.g. Victoria police and government departments.
Crime Statistics Agency, classifies crimes into six broad divisions.

Division A: Crimes against the person
Division B: Property and deception offences
Division C: Drug offences
Division E: Justice procedures offences
Division F: Other offences

Question 15

What is CLASSIFYING CRIMES BY OFFENDER OR VICTIM?

Answer 15

Cyber-crime
e.g. online fraud or creation of malware to dishonestly gain information

Organised Crime
e.g. drug manufacturing and trafficking

Juvenile Crime
e.g fair evasion, assualt, property damage

White Collar Crime
e.g. tax evasion, investment scams

Prejudice motivated crime
e.g. including racial and religious vilification

Question 16

what is included in CLASSIFYING CRIMES BY THE SERIOUSNESS OF THE OFFENCE?

Answer 16

Summary offences
minor crimes heard and determined by a Magistrate in the Magistrates’ Court.
Listed in the Summary Offences Act 1966

Indicatable offences
Serious crimes generally heard in the higher courts (County Court and Supreme Court) before a judge and a jury
Most crimes in the Crimes Act 1958 are indictable offences

Question 17

What are indictable offenses heard summarily?

Answer 17

The law allows some indictable offences to be heard and determined summarily, meaning the offence can be heard and determined as if they are minor offences in the Magistrates Court by a magistrate, rather than in the County Court or Supreme Court by a judge and jury.

Indictable offences that can be heard summarily are listed in the Criminal Procedure Act 2009 (Vic).
Examples include less serious assaults, causing criminal damage worth less than $100,000, theft of less than $100,000 and computer offences such as unauthorised access

A offence can not be heard summarily if
it is punishable by more than 10 years imprisonment or a fine greater than 1200 penalty units (approx $230,000
without the consent of the accused

Why?
cheaper and quicker than a trial
accused may receive a lesser punishment (magistrates can only impose a max of two years imprisonment for a single offence or 5 years for multiple offences

Question 18

What are the two elements that are needed for a crime?

Answer 18

Generally, for a crime to have been committed, two elements of a crime to exist at the same time: actus reus and mens rea
The prosecution must prove both elements beyond reasonable doubt

Question 19

What is actus reus?

Answer 19

The physical element of the crime.

Latin for “guilty act”

The guilty act can be something a person does or something a person omits to do, i.e. something a person is required to do but fails to do

Question 20

What is mens rea?

Answer 20

The mental element of the crime

Latin for “guilty mind.”

A person has to be found to have had the necessary “state of mind” for the offence before they can be found guilty.

The prosecution must prove the person intentionally committed the wrongful action.

Question 21

What are defenses in court?

Answer 21

Many defences raised by an accused person are made on the basis they were incapable of forming the intention to commit the crime at the time of committing the wrongful action

e.g. mental impairment, epileptic seizure

Question 22

What is strict liabilty?

Answer 22

While generally both elements of crime must be present for a crime to have been committed, this does not apply to strict liability crimes.

Strict liability crimes do not require a mental element (mens rea). This means that the prosecution is only required to prove that the accused committed the wrongful action (actus reus).

Question 23

What is the age of criminal responsibility?

Answer 23

Refers to the minimum age someone has to be to be charged with committing a crime.

The term ‘doli incapax’ means “incapable of evil” in Latin. It refers to the idea that children between 10-13 are presumed to be incapable of forming a mens rea because they do not have the intellectual or moral capacity to know the difference between right or wrong

Question 24

What and who is a principal offender?

Answer 24

A principal offender is a person who commits an offence and has carried out the actus reus (the act or omission that constitutes a crime).

Any person who is involved in a crime is also considered to be a principal offender. This includes any person who intentionally assists, encourages or directs another person to commit a crime.

Participants in a crime
A person is ‘involved in’ a crime when they …
intentionally assist, encourage or direct
another person to commit a crime
intentionally assist, encourage or direct another person to commit a crime knowing it is highly likely that anothercrime may be the result
make an agreement with another person to commit a crime together
make an agreement with another person to commit a crime together knowing it is highly likely that another crime may be the result

Question 25

What and who is an assesory?

Answer 25

An accessory is a person who, without lawful excuse, assists a principal offender after a crime has been committed. This assistance includes helping the principal offender avoid being arrested, prosecuted, convicted or punished for the crime. To be an accessory, a person must believe or know that the offender has committed a serious indictable offence (ie. an indictable offence punishable by five years or more in prison). An accessory can be found guilty of an offence regardless of whether the principal offender is found guilty.

Question 26

What is murder?

Answer 26

Murder is the unlawful and intentional killing of a human being by a person who acted voluntarily and without any lawful justification. It is part of a group of crimes known as homicide (which include manslaughter, infanticide, child homicide, culpable driving causing death) Murder is the most serious homicide offence. It is known as a ‘category 1' offence which means the offender must be sentenced to imprisonment (unless there are certain exceptional cirumstances)

Question 27

Elements of murder?

Answer 27

For a person to be found guilty of murder, the prosecution must prove each of the following for elements beyond reasonable doubt 1.The killing was unlaful The prosecution must prove that the accused did not have a legal justification (or lawful reason) for causing the other persons death. Examples of legal justification for killing another person: soldier killing an enemy in battle police acting in the course of their duties a person acting in reasonable self defence or under duress 2. The accused acts were voluntary The prosecution must prove that the accused committed the acts when they were awake, aware and in control of their bodily actions. The accused’s actions must have also been deliberate and not the result on an unintentional accident 3.The accused commits act that caused the victims death The prosecution must prove that the accused’s actions contributed significantly and substantially to the victim's death. They must prove that there was an action committed and that there was causation - meaning there was a direct and unbroken link between the action and the death of the victim. E.g. The accused shoots a gun at the victim, and the victim dies because of a bullet would 3. The accused acted with intention to kill or cause serious harm The prosecution must prove that the accused acted with a ‘guilty mind’ (i.e that the mental element of a crime, mens rea, exsited at the time of the killing. In particular the prosecution must prove that when the accused committed the acts, they either: intended to kill someone or cause them really serious injury knew that it was probable that death or really serious injury would be a result of their actions

Question 28

what are the defenses to murder?

Answer 28

An accused will only be found guilty of murder if the prosecution proves all elements of the offence. The accused may therefore try to argue that one or more of the elements is missing. General defenses to murder self-defence mental impairment duress sudden or extraordinary emergency automatism intoxication accident

Question 29

What are the sanctions for murder?

Answer 29

The maximum penalty for murder is life imprisonment - but this doesn’t mean they will be in prison for their whole life A judge usually sentences an offender to life imprisonment with a non-parole period. non parole period is the minimum time the offender must be held in prison. After this, they can apply to be released from prison back into the community under supervision and strict conditions.

Question 30

what are the sentencing considerations for murder?

Answer 30

When determining the sentence for the offender, the judge will consider the standard sentence for that offence. This a guideline established in the Sentencing Act 1991 (Vic) that represents the sentence that should be imposed for ‘mid- range seriousness’ offending. The standard sentence for murder is 25 years’ imprisonment (or 30 years imprisonment if the victim was an emergency worker or custodial officer on duty. Judges must also consider a range of other factors when determining the sentence. Aggravating factors - circumstances that make a criminal offense more serious. They can increase the severity of the crime or the culpability of the offender. Mitigating factors - circumstances that can reduce the severity of a crime and result in a lesser sentence the nature and gravity of the offence the vulnerability of the victim the offenders conduct after committing the offence the offenders personal circumstances whether the murder was ‘premeditated guilty plea

Question 31

What are trends and statistic and what do they do?

Answer 31

Comparing crime statistics between the Australian states and territories is difficult due to the differences in the ways the states and territories define and categorise offences.

Question 32

What is the impact of murder?

Answer 32

All crime has impacts on individuals and society. Being the most serious of crimes, murder sigificantly impacts: 1. victims and friends Loss of life lasting impact on victims family and friends, including emotional trauma family members may feel they have few rights when dealing with the legal system Victims of crimes are entitled to be treated with respect and dignity, and this is protected by the Victims Charter Act 2006 (Vic) allows them to be informed about the investigation, prosecution of the accused, trial and sentencing process have opportunity to provide victim impact statement have the opportunity to seek financial comppensation 2.Impacts on community Murder can also impact the community as a whole It may destroy public confidence in the ability of the police and justice system to protect the public People who live in surrounding areas of the site of a murder offence may feel unsafe A particularly cruel or brutal murder can prompt a community to take action e.g. gathering to pay tribute to a victim or expressing discontent with a court decision 3.Impacts on the offender offenders will be sentenced to a lengthy period of imprisonment offenders may suffer shame and a sense of remorse The offender may incur significant legal costs and financial hardships. Upon release from prison, offenders may find it difficult to reestablish connections with their family and friends or find employment/housing

Question 33

What is culpable driving?

Answer 33

Culpable driving is when a person drives a motor vehicle negligently, recklessly or while under the influence of drugs or alcohol and causes the death of another person.

Question 34

What are the elements of culpable driving?

Answer 34

ELEMENT 1: The accused was the driver of a motor vehicle To be found to be the driver of the motor vehicle the accused must have sustainable control over the movement of the motor vehicle. Motor vehicles are generally motorised vehicles intended to be driven on a highway (e.g. cars, trucks, buses or motorbikes). Vehicles that are not motor vehicles include those intended to be used on a railway or tramway, and motorised wheelchairs that cannot go at a speed of more than 10 kilometres per hour and which are used to carry an injury or disabled person. ELEMENT 2- The accused driving was culpable. Culpability’ refers to the responsibility for a fault or wrongful action (or inaction). In relation to driving, it means that the accused must have been driving the motor vehicle in one of the following ways: * driving negligently – that is, driving in a way that fails (to an unacceptable degree) to observe a reasonable standard of care that a reasonable person would have observed in similar circumstances, and that others in the community have a right to expect (e.g. driving while fatigued to such an extent that the driver ought to have known that there was a risk of falling asleep) * driving recklessly – that is, driving in a way that consciously and unjustifiably disregards a substantial risk that another person could die or be seriously injured (e.g. driving at high speeds in bad weather) * driving under the influence of alcohol or a drug – that is, driving in a condition where the consumption of alcohol or drugs makes the accused incapable of properly controlling the vehicle. ELEMENT 3-The accused’s culpable driving caused the death of another person To have ‘caused’ the death of another person, the accused’s culpable driving must have ‘contributed significantly’ to the death. However, the meaning of ‘contributed significantly’ varies, depending on the type of driving involved in the charge. For example, if the accused is charged with driving in a negligent or reckless way, the prosecution must prove that the accused realised that death or grievous (serious) bodily harm could be a consequence of their driving, and it was the disregard of this risk that caused the victim’s death. On the other hand, if the accused is charged with driving under the influence of alcohol or drugs, the prosecution is only required to prove the accused was so intoxicated that they were incapable of having proper control of the vehicle – and not that the accused realised the risk associated with their driving. The prosecution must also prove the accused caused the death of another person. Under the law, an unborn child is not considered a ‘person’. In the following scenario, the offender caused his motor vehicle to crash into a tree after he fell asleep while driving. His four-year-old daughter tragically died as a result of the accident. He pleaded guilty to culpable driving causing death.

Question 35

What are the defenses to culpable driving?

Answer 35

It is the prosecution’s responsibility to prove beyond reasonable doubt that an accused person committed the offence they have been charged with. An accused person is also entitled to defend themselves. Examples of general defenses Duress Sudden or extraordinary emergency Automatism

Question 36

What are the sanctions of culpable driving?

Answer 36

The maximum penalty for culpable driving is 20 years’ imprisonment and/or a fine of 2400 penalty units. A category 2 offence must be a custodial sentence. The Standard sentence for culpable driving is 8 years and a license disqualification.

Question 37

What are the sentencing considerations for culpable driving?

Answer 37

In addition to the maximum penalty and the standard sentence, some other factors a judge may consider when determining the length (or period) of imprisonment to be imposed on an offender who is guilty of culpable driving causing death include the following. These factors may increase or lessen the seriousness of the offending, resulting in the offender receiving a higher or lower sentence than the standard sentence for culpable driving causing death: the nature and gravity of the offence – factors relating to the nature and gravity of the offending that may result in the offender receiving a higher sentence than the standard sentence for culpable driving causing death include the recklessness of the offender’s driving. * the offender’s conduct after committing the offence – an offender may increase the seriousness of their offending by acting in a cruel or heartless way after committing the offence. * the impact of the victim’s death – as in all cases, when sentencing the offender in a culpable driving causing death case, the court will consider the impact of the offending on any victims, such as the deceased person’s family and friends. * the offender’s personal circumstances – the personal circumstances of the offender mental health, personal history, good or poor character and previous convictions) may increase or lessen the seriousness of the offending. * guilty plea – if the offender pleads guilty to culpable driving causing death, the judge must impose a less severe sentence than they would otherwise have imposed. The time or stage at which the guilty plea is entered is also a relevant factor (the earlier the guilty plea, the more likely it is to reduce the sentence).

Question 38

What are the possible impacts of culpable driving?

Answer 38

All crime has impacts on individuals and society. Culpable driving significantly impacts: 1. Victims and family and friends Anger Shock Grief Anxiety and fear Mental health issues Trauma Stress Financial 2.Impact on the offender Regret Guilt Remorse Mental health issues Loss of liberty Punishment Relational impacts Financial impacts 3. Impacts on society According to the Safer Australian Roads and Highways Group, traffic injury is the biggest killer of Australian children under 15 and the second biggest killer of all Australians aged between 15 and 24.