Outcome 2A - Proving Guilt

Question 1

2 Egs of legislation

Definition of a crime

Answer 1

An act or omission that violates an existing law, causes harm to an individual, or society as a whole, and is punishable by the law:
Serious offences found in the Victorian Crimes Act 1958
Minor offences found in the Summary Offences Act 1966

Question 2

Four purposes of criminal law

Answer 2

-Protection of society - Reduce danger and chaos in society, ensure indiv in commun. safe and prevented from exp harm
-Deterrence of crime - discouraging offender or indiv from reoffending or commiting by imposing sanction
-Protect justice and the rule of law - regulate how each person should act and est punsihments received if x act certain way
-Set minimum standards for behaviour - provide justive for victims, friends + fam of crime -> offenders must face conseq, law applies to every1 regardless of personal chara

Question 3

Crimes against the person

Answer 3

Acts that either cause harm 2 another indiv or pose a threat of harm to them eg murder, assault

Question 4

Crimes against property

Answer 4

Criminal acts that employ force or deceit to acquire, damage or demolish property - may involve money, personal property or land
eg theft, arson, vandalism

Question 5

Cyber Crime

Answer 5

Criminal activities aimed at computer systems or computer networks
eg internet-based fraud or introducing viruses/malware

Question 6

Hate Crime

Answer 6

Acts of violence that stem from prejudice against a person’s gender, ethnicity, religion or sexual orientation.

Question 7

Stakeholders

Answer 7

The accused- indivs accused of allegedly committing the crime (can be multiple)/if found guilty = offenders
Victims - indivs harmed, injured or killed due to commission of a crime
Witnesses - indivs who saw or heard aspects of a crime being committed
The prosecution - lawyers who work within the Office of Public Prosecutions = legal branch of govt responsib 4 bringing crim offenders 2 justice / aim = proving accused gulty 2 receive sanction

Question 8

Burden of Proof

Answer 8

the responsib. of a party to prove the facts of a case / in crim, burden of proof is on the prosecution -> it is responsib of prosec 2 gather and prevent evidence to prove accused’ gult

Question 9

Standard of Proof

Answer 9

refers to level/degree which crim case must be proven. relies on the strength of evidence being presented 2 prove guilt of accused. In crim, the degree is beyond a reasonable doubt

Question 10

Beyond a reasonable doubt

Answer 10

Means the judge and jurty must be convinced that there is no other logical, reasonable or alt explaination other than the accused commiting the crime.

Question 11

Presumption of innocence

Answer 11

A right for all accused persons to be presumed innocent until they are proven guilty

Question 12

The right to silence

Answer 12

Means accused does not have any obligation to respond 2 police questioning (other than giving name and address) or be pressured to give evidence. Upholds PoI bc places responsib of proving accused’s guilt on prosec. If cannot do so, accused must be presumed innocent

Question 13

The right to apply for bail

Answer 13

Bail= conditional release of the accused into society whilst they await their trial
Upholds PoI bc allows accused to remian relatively free whilst their trial proceeds through the courts. If denied bail, punished for offence x proved to have committed.

Question 14

Prior convictions cannot be revealed

Answer 14

If the accused has prior convictions, they cannot be revealed to the jury during trial. this ensures that the jury does not form prejudice against the accuded and can only convict the accused based on evidence presented before them.

Question 15

Actus Reus

Answer 15

‘Wrongful Act’
The physical element of a crime, referring to the wrongful acts or omissions the offender must have undertaken as part of a crime

Question 16

Mens Rea

Answer 16

‘Guilty Mind’
The mental element of a crime, referring to the offender’s awareness of their criminal behaviour and its potential consequences

Question 17

Strict Liability Offences

3 egs

Answer 17

A type of offence that does not require the mens rea element of the crime to be satisfied to find the accused guilty

Speeding, serving underaged person alcohol @ licensed venue, public transport fare evasion

Question 18

Two reasons for strict liability offences

Answer 18

To protect society from types of crimes where regardless of the offender’s intent, their conduct is dangerous and must be discouraged (speeding)
Not requiring mens rea to be proven makes iot more efficient to find individuals guilty of these offences and be punished. T/f, more ppl commiting them can be punished and hopefully deterred from repeating the same offences.

Question 19

Age of criminal responsibility

All age groups

Answer 19

Under 10- Cannot be charged with a crime
10 to 13 - Can be charged w a crime if prosec can prove that child knew their actions were wrong at the time of the crime
14+ - Can be charged w a crime

Law considers a child capable of understanding their wrongful actions

Question 20

Doli Incapax

Answer 20

‘Incapable of wrong’ - this assumption is applied to children under 10 bc it is believed that they are incapable of possessing criminal intent or too young to understand the criminal nature of their actions.
If for a 10-13 y/o the prosecution cannot establish criminal intent, the child will be released on the grounds that they are doli incapax

Question 21

Summary Offences

Egs, features, legislation

Answer 21

A criminal offence that is considered less serious in nature.
Found in Summary Offences Act 1966 (Vic)
-Heard via hearings in Mag court
-No commital proceedings
-No jury
-Sanctions imposed are usually fines, calculated by penalty units

Eg. Speeding, Property damage worth under $5000

Question 22

Indictable Offences

Egs, features, legislation

Answer 22

Crim offences that are considered more serious in nature than Summary
Found in Victorian Crimes Act 1958 (Vic)
Heard via trials in County + Sup court
There are committal proceedings
Jury of 12 during trial
Sanctions imposed are usually comm. corrections orders and/or terms of imprisonment

Eg. Murder, stalking, kidnapping

Question 23

Indictable offences heard summarily

Egs, features, legislation

Answer 23

Indictable offences considered less srs & conseq. can be heard in Mag court in manner similar to Summ. offences.
Found in Criminal Procedures Act 2009 (Vic)
Must not be punishable by terms of imprisonment 10+ yrs
Court must agree (via commitals)
Accused must consent
Matters involving theft = less than $100k

Question 24

Two strengths of having a case tried summarily

Answer 24

-Less severe sanctions (Max 2 years imprisonment for a single offence)
-Saves money (less cost in lawyer fees bc less experience needed and less time consuming)
-Hearings are generally shorter then trials

Question 25

Weaknesses of having a case tried summarily

Answer 25

-Instead of having a jury of 12 coming to a decision, it will be decided solely by the Magistrate -Less expertised Magistrate responsible for decision making -Less formal process limits rules of evidence and procedure

Question 26

Two strengths of having a case heard at trial

Answer 26

-Having a jury spreads decision making over multiple people -Higher expertise of judge -More rigid formality of court

Question 27

Two weaknesses of having a case heard at trial

Answer 27

-Can result in higher maximum penalty -Trials generally last longer -Higher legal cost (hiring more experienced legal rep etc)

Question 28

Principle Offender | Legislation, considered

Answer 28

The indiv who commits the poffence and/or is directly involved in the enactment of the crime. Subjected to max penalty ('Most guilty' for crime) Considered PO if -Assist -Encourage -Directly commits the act -Enters into an agreement, arrangement or understanding with another person to commit an offence | Crimes Act 1958 ## Footnote Does not have to be physically present when offence is commited

Question 29

Accessory

Answer 29

Any person who knows or believes that a person is guilty of a serious indictable offence and acts to prevent the arrest, prosecution or punishment of that person. Eg. Hiding a principle offender Hiding, destroying or tampering with evidence Helping a criminal suspect escape arrest | Crimes Act 1958 ## Footnote Occurs after planning the commision of a crime

Question 30

Elements of murder

Answer 30

The victim was a human being The victim died The accused is a person over the age of discretion The accused's act was voluntary The accused's act caused the death of the victim The accused acted with intention or recklessness The killing was unlawful

Question 31

The victim was a human being

Answer 31

The victim must have been a living person, not an object, animal or unborn child

Question 32

The victim died

Answer 32

'Death' defined to mean the irreversible cesation of circulation of blood in the body, or all function of the brain

Question 33

The accused is a person over the age of discretion

Answer 33

Must be 10 years and above. A child below the age of 10 cannot be charged for any crime, as they are believed to be doli incapax

Question 34

The accused's act was voluntary (Actus Reus) | 3 egs of involuntary actions

Answer 34

The accused must have had conscious and deliberate control of their boidly movements when committing the acts that killed the victim. Involuntary eg: They were having an epileptic seizure or muscle spasms They were involuntarily intoxicated eg drink spiked They were unintentionally falling over

Question 35

The accused's act caused the death of the victim | Include all requirements

Answer 35

Accused's actions must have contributed directly and substantially to the victim's death. The prosecution must establish: 1)There was a direct, unbroken link between the accused's actions and the death of the victim AND 2)Substantial and operating 'but for' cause test to prove the events were intervening OR 3)Natural consequence test - for the victim to seek escape. When the conduct of the accused causes the victim a well-founded apprehension of physical harm so the victim would seek escape, and the victim is injured whilst escaping, the injury is caused by the accused's conduct.

Question 36

The requirements of an intervening act, and when it can be considered a break in the chain of causation

Answer 36

There may be an intervening act (novus actus interveniens) that breaks the chain of causation. If proven to have broken the chain of causation, then there is no longer a direct/causal link between the actions of the accused and the death of the victim. Eg. Acts of nature which are *spontaneous, irregular and unpredictable* Medical treatment so *palpably or overwhelmingly* bad to be considered an intervening act | Eggshell skin rule ## Footnote The accused must take the victim as they find them. The victims beliefs, allergies and sensitivities are not considered intervening acts.

Question 37

Malice Aforethought | Intentional Murder

Answer 37

The accused caused death of another w/ specific intention to kill or cause srs phys injury while having no lawful reason to do so Grievous Bodily Harm- rlly srs injury

Question 38

Malice Aforethought | Reckless Murder

Answer 38

Accused knows that act will prob or likely kill or grievously injure someone, yet they nevertheless commit act w/ reckless indifference to conseq. Reasonably forseeable that conduct would likely amount to death or grievous bodily harm -Must determine subjective mindset of accused by examining surrounding behaviour, what they said, how they acted, their age etc.

Question 39

Unlawful Killing

Answer 39

Nearly all killings of another human will be unlawful unless -death penalty in countries where capital punishment is legal (Not relevant to Aus) -Soldier killing enemy in battle -Person acting in self-defence or under duress and the court considers actions reasonable

Question 40

Onus of proof for a defence

Answer 40

-Accused must first present sufficient evidence to suggest that the defence is relevant and applicable to the case (Evidentiary burden) -Then, the responsib falls upon the prosecution to disprove the elements of the defence beyond reasonable doubt (legal burden) ## Footnote (Responsib of proof)

Question 41

Elements req to prove self defence

Answer 41

1. Honest belief 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

Question 42

Elements req to prove duress

Answer 42

Duress: The circumstances must hace been such that the accused's will was really and absolutely controlled, that they became a mere innocent instrument of the crime 1. A threat of death or GBH 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 | A subjective test = used to determine whether the belief is 'reasonable'

Question 43

Elements req to prove sudden and extraordinary emergency

Answer 43

1. There was a sudden or extraordinary emergency involving death or GBH 2. Their actions were the only way of dealing w the sit 3. Their conduct was a reasonable response to the sit

Question 44

Custodial Sentence

Answer 44

A sentence which requires time in custody/prison. Requires restricting of a person's liberty

Question 45

Non-Custodial Sentence

Answer 45

An order made by the court that allows a person charged w/ an offence to live in the commun. whilst receiving treatment 4 mental illness

Question 46

Non-Parole Period

Answer 46

The min. time the offender must serve in prison before being eligible for parole

Question 47

3 Impacts of Murder on the Individual

Answer 47

Physical, Psychological, Economic

Question 48

# Indiv Physical Impact

Answer 48

Severe health problems for those close to a murder victim following the offence eg. insomnia, cardiac issues. The offender may have sustained minor or severe injuries in the commission of the offence

Question 49

# Indiv Psychological Impact

Answer 49

Fam+friends of victims can exp psych. issues including post-traumatic stress, depression. For the offender + their fam, may be feelings of guilt, remorse, shame and humiliation

Question 50

# Indiv Economic Impact

Answer 50

Victim= primary financial provider 4 fam, whole fam may suffer eco. bc loss of main income earner. Offender is likely to exp loss of earnings if unable to work due to being in remand/term of imprisonment. There could be significant costs associated w/defending themself in court eg cost of legal rep.

Question 51

3 Impacts of Murder on Society

Answer 51

Economic, Social, Legal

Question 52

# Society Economic

Answer 52

Local commun. w/high murder rates cab devt. unsafe rep -> lack of people living in area, bring down house prices + loss of income for business. + cost on society thru increased workload on law enforcement instit. funded by taxpayers eg police

Question 53

# Society Social

Answer 53

Memb. w/in local commun w/high murder rates can live in fear, constant worry over their safety OR devt. hostility towards certain groups of indiv. they perceive to be responsib. for inc. crime rates

Question 54

# Society Legal

Answer 54

Cont. instances of violent crimes may prompt harsher laws to be passed by govt to reduce frequency + cost on society as offenders must be tried and imprisoned Courts alr overburdened w/immense delays t/f increased pressure on the courts that murder can impose is a neg impact on legal syst