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year 11 legal > proving guilt > Flashcards

proving guilt Flashcards

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1
Q

meaning of culpable

A

deserving of blame or condemnation; being responsible for something bad occurring

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2
Q

where is culpable driving causing death found

A

S318 of the crimes act 1958

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3
Q

what is found in s318 of the crimes act 1958

A

culpable driving causing death

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4
Q

elements of culpable driving causing death

A
  1. the accused was driving a motor vehicle (actus reus).
  2. the driving was culpable (mens rea)
  3. the culpable driving caused the death of another person (actus reus)
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5
Q

defining a motor vehicle

A

a vehicle that is propelled by a motor and is normally used on a highway e.g cars, trucks, buses and motorbikes

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6
Q

driving meaning

A

a person has substantial control of movement and direction of the motor vehicle

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7
Q

ways to contest driving

A

the vehicle was not fully operational (e.g dysfunctional engine, steering wheel or brakes)
the vehicle was not propelled by its own motor force (e.g being towed)
the vehicle was stationary (e.g stopped at traffic lights)

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8
Q

what must the prosecution prove that accused was driving in one of the following ways:

A

recklessly
negligently
under the influence of drugs or alcohol

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9
Q

meaning of recklessly for culpable driving

A

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 risks (e.g speeding in poor conditions)

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10
Q

negligently in regards to culpable driving

A

the driver fails, to a high degree, to observe the standard of care that a reasonable person would have observed n the same situation (e.g driving whilst extremely fatigued - they ought to have known that they would likely fall asleep)

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11
Q

under the influence of drugs or alcohol in regards to culpable driving

A

the consumption of the alcohol or drugs must render the driver incapable of properly controlling the vehicle (e.g using meth for several days without sleep and then veering on the road)

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12
Q

if the accused was driving in a reckless or negligent manner

A

the prosecution must prove that the reckless or negligent act was a substantial and operating cause of the victim’s death

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13
Q

if the accused was so affected by alcohol or drugs that they were incapable of controlling the vehicle

A

the prosecution only needs to prove that the accused’s driving was a substantial and operating cause of the victim’s death

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14
Q

defences to culpable driving causing death

A

cast doubt on one of the elements of culpable driving so that the prosecution cannot prove the offence beyond reasonable doubt
raise a specific legal defence to justify their actions (duress, sudden or extraordinary emergency, automatism)

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15
Q

duress in regards to culpable driving causing death

A
  1. a threat of 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.
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16
Q

sudden or extraordinary emergency in regards to culpable driving

A
  1. there was a sudden or extraordinary emergency
  2. their actions were the only way of dealing with the situation
  3. their conduct was a reasonable response to the situation
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17
Q

automatism in regards to culpable driving

A

a common law defence that can be raised for any criminal offence - very rare and difficult to prove
the accused can rely on this if at the time of the offence, they had a total loss of control over their bodily movements (ie were not conscious or aware of what they were doing) and therefore had an involuntary state of mind

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18
Q

examples of automatism

A

if the accused commits the offence whilst sleepwalking
if the accused commits the offence while suffering form a concussion or during an epileptic seizure

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19
Q

where will assault be found

A

summary offences act 1966
indictable assault offences - crimes act 1958

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20
Q

indictable assault offences found

A

crimes act 1958 -
causing serious injury recklessly in circumstances of gross violence (s15B)
causing serious injury intentionally (s16)
causing injury intentionally or recklessly (s18)
conduct endangering life (s22)
conduct endangering persons (s23)
negligently causing serious injury (s24)
threats to kill (s20)

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21
Q

elements of assault

A

the accused completed the physical act (actus reus) of the offence and, this actu caused injury to the victim
the accused intentionally or reckessly caused the victim injury (mens rea)

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22
Q

causation

A

requires that there is a connection between the accused’s act or omission and the injury, or serious injury, suffered by the victim

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23
Q

objective test

A

used whereby the actions of the accused must have been a ‘substantial and operating cause’ of the victim’s injury, or serious injury, without an intervening event. the ‘substantial and operating cause’ test requires the accused’s act, or omission, to substantially or significantly contribute to the injury, or serious injury, suffered by the victim

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24
Q

injury to the victim includes

A

physical injury
harm to mental health
serious injury=
endangers life
substantial and protracted

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25
different mental states (assault)
intentional reckless negligently
26
intentional - assault
the prosecution must prove BRD that the accused intended to cause harm to the victim. it is not enough to prove that the accused intended to do the act
27
reckless - assault
to demonstrate reckless the prosecution must prove that; 'i know this may cause injury, but i dont care ' - accused could foresee that their actions would probably cause injury to the victim - accused knowing that their actions would probably cause injury to the victim and does so anyway
28
negligently assault
this element requires that the prosecution proves that the accused completed an act that grossly fell short of standard of care that a reasonable person would exercise, and a high risk of injury would result from the accused' conduct
29
raising a defence to assault
self-defence duress consent
30
self defence - assault
recognises that a person may lawfully use force, or the threat of force to prevent unlawful harm against them or another
31
legislation for selfdefence in assault
S322k of crimes act 1958
32
2 elements of self defence for assault
the accused believed that the conduct was necessary for self-defence - the first requirement establishes that the accused must have believed the force they exerted in relation to the threat was necessary to protect themselves or another person from harm the conduct was a reasonable response in the circumstances - the second requirement = conduct was reasonable and not a disproportionate response to the perceived threat. this is determined by focusing on what the accused might have reasonably believed in the circumstances.
33
duress for assault
a defence that can be raised whereby criminal behaviour was induced, against the accused's better judgement, by threat, violence or coercion from a third party
34
legislation for duress and assault
s3220 of the crimes act 1958
35
3 elements for duress (assault)
a threat of harm the conduct was the only reasonable way to avoid the threatened harm the conduct was a reasonable response to the threat
36
consent (assault)
if the accused has acted with consent, such as the consent of the injured person, they can be acquitted of assault charges against them. there are some situations where the victim may consent to injury, or serious injury which includes sporting events and medical procedures e.g sporting events, medical procedures or daily life
37
stakeholders
individuals of people who will be directly or indirectly impacted due to the commission of an offence
38
stakeholders can include:
the offender the victim families of the offender and victims the community or wider society
39
types of impacts
psychological social economic legal political
40
impact on the offender (culpable)
medical treatment and costs guilt or shame in causing a death legal cost likelihood of a custodial sentence lost labour and income in the household impact on their family’s social standing, finances and health and wellbeing damage to, replacement or impounding of vehicle
41
impact on the victim and their family (culpable)
loss of life disruption to family life trauma, grief and loss and related medical issues funeral costs lost labour and income in the household continuing psychological issues loss of trust in law and order, and community values
42
impact on society (culpable)
cost of publicly funded medical treatment need for coronial services increased need for police, fire and emergency services trauma to emergency services workers responding to fatal collision increased insurance premiums for motor vehicles loss of workplace productivity damage to community properly loss of trust in law and order, and community values
43
sentencing factors
once an offender has plead guilty, or has been found guilty, it is the role of the magistrate to hand down a sentence in form of a sanction
44
sentencing factors (act)
sentencing act (vic) 1991 outlines the maximum sentences for each offence endures consistent and fair
45
aggravating factors
factors that will increase the offenders capability factor suggests their evil nature, callousness towards harming others, inability to be reformed or rehab
46
mitigating factors
decreases the offenders capability because these factors suggests that the offender felt remorse, they have taken responsibility or, their ability to rehab
47
early guilty pleas
this occurs when the offender pleads guilty to their changes soon after being arrested. it is generally seen as a mitigating factor because it shows remorse and or saves the victim and family having to go through public trial and saves the courts resources
48
victims impact statements
these are statements made by victims themselves or their family member if they’re less likely to share the impact that the crime has had them. it is likely to increase severity of the sanction
49
impact on victim and their family (assault)
disruption to family life trauma, grief, loss and related medical issues loss of income the need for family member to take care of victims as they recover continuing psychological issues, including for family members who may have witnessed the assault loss of trust in law and order and community values
50
impact on community (assault)
cost of publicly funded medical treatment increased need for police and emergency services workers loss of workplace productivity damage to community resources loss of trust in the legal system decreased wellbeing, especially among the elderly and these living alone
51
impact on the offender (assault)
medical treatment and cost guilt or shame legal costs and financial impact of sanctions lost income impact on offenders family’s social standing, finances and health and wellbeing
52
the role of courts in criminal cases
manage, hear and determine a criminal case if the accused pleads not guilty imposed a sanction if the accused pleads or is found guilty
53
manage, hear and determine a criminal case if accused pleads not guilty
courts provide specialisation and expertise in the type of case they are hearing magistrate = determines guilt jury = determines guilt magistrates court hears commital proceedings for indictable offences county, supreme and high = appeals -> guilty = questions of law and fact
54
imposed a sanction if the accused pleads or is found guilty
sentencing factors sentencing hearing = magistrate / judge = hands down sanction
55
commital proceedings
committal mention - accused pleads guilty / not guilty. case may be sent to be heard summarily if meet requirements committal hearing - if accused pleads not guilty, the magistrate determines whether there is sufficient evidence to support conviction
56
magistrate court original jurisdiction
summary offences e.g minor assault indictable offences heard summarily no jury hearings not trial committal proceedings for indictable offences bail and warrant application
57
magistrates appellate jurisdiction
no appellate jurisdiction
58
county court original jurisdiction
indictable offences accused pleads not guilty to a charge heard in the county court
59
county court appellate jurisdiction
hears appeals from megistrates court on question of fact - conviction - sentences
60
supreme court trial division original jurisdiction
all indictable offences eg murder not guilty - jury of 12 empanelled to determine guilty
61
supreme court trial division appellate jurisdiction
hears appeals from megistrates court on question of law
62
supreme court court of appeals original jurisdiction
no
63
court of appeals appellate jurisdcitom
hears appeals from county / supreme hears appeals from mag. court heard by 3 judges on question on conviction, severity of sentence and question of law CoA must grant leave to appeal
64
jury
a group of randomly selected people who are required to deliver a verdict in a trial based on the evidence presented to them in courts
65
jury composition
governed by the juries act 2001 (vic) 12 jury members deliberate and decide guilt must be 18+ selected at random
66
jury eligibility
disqualified ineligible excused
67
disqualified
sentenced to a term of imprisonment for 3 years and more currently on bail / remand undischarged bankrupts
68
ineligible
judges, magistrates, lawyers, police officers unable to communicate, insufficient english, physical disability that renders them incapable of performing jury service
69
excused
poor health, live more than 50 km away, advanced age, financial hardship, carers with dependents, unable to be impartial
70
jury selection
both parties have 3 peremptory challenges - no reason provided both parties have an unlimited number of challenges for a cause - reason must be provided
71
the jurors in a criminal trials should
concentrate during the trial and listen to all the evidence piece together evidence and decide the verdict ask clarifying question of the judge if there is terminology / legal concepts in which are unclear make notes jurors not discuss the matter of the trial with anyone jury must try reach a unanimous verdict 12/12 for offence other man murder, treason/ drugs if not possible, hung jury - retrial
72
act for jury
jury directions act 2015
73
purposes of sanctions
accused person is found guilty/ pleads guilty, the judges magistrates will determine a penalty
74
act for sentencing
sentencing act 1991 (vic)
75
courts must not sentence an offender for any other purpose except
punishment protection denunciation deterrence rehab
76
punishment
penalising the offender and holding them accountable when they have done something unacceptable - retribution for victims - deters from enacting revenge imprisonment = ultimate punishment
77
protection
achieved by removing offenders from society to ensure they do not pose a risk to safety and welfare of their victims / society
78
denunciation
the courts aim to publicly and formally critise the offender's criminal behaviour -expresses disapproval -> violated moral and ethic standards of society
79
deterrence
aims to prevent an offender, or the general public, from re-offending / committing a crime (specific deterrence - discourage from committing offences / same offence the offender) (general deterrence - discourage others from committing that same crime)
80
rehabilitation
to address the cause for offending and fix or cure the accused from re-offending - achieved by sanctions that seek to break the cycle of offending to address the underlying causes of criminal behaviour - society's best interest - decrease crime rates and cost of imprisonment - chance of a better future
81
sanctions
a consequence that is imposed on an offender who has been found guilty / pleaded guilty of breaking a criminal law
82
types of sanctions
fines community corrections orders imprisonment
83
sentencing factors
judge needs to consider various factors that can increase or decrease severity of the sentence -> level of offender's culpability
84
culpablitilty
a measure of the degree to which an individual can be held responsible for a criminal act / how 'blameworthy' were they
85
factors (sentencing factors)
aggravating factors mitigating factors guilty plea victim impact statement
86
aggravating factors
facts or circumstances about the offender or an offence that can increase the offender's culpability and lead to a more severe sanction
87
aggravating factors egs
crime = planned hate crimes the degree of brutality and cruelty victim was a vulnerable person prior convictions committed in front of children
88
mitigating factors
facts or circumstances about the offender / offence that can decrease the offender's culpability and lead to a reduction in sentence
89
mitigating factors eg
remorse crime is a result of provocation age PTSD criminal history
90
guilty plea
occurs when a person admits that they committed an offence for when they have been charged
91
victim impact statement
an account written by people directly and indirectly impacted by the offence
92
eg victim impact statment
account provdies insight into physical, emotional and economic effect of the offence VIS indicates severe impact on victim + increase sentence VIS indicates that victim has forgiven the offender + decrease sentence

year 11 legal (5 decks)

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