The Criminal Justice system T3 Flashcards
(108 cards)
1
Q
4 purposes of criminal law
A
- set minimum standard of behaviour
- protection of society and individual
- deterrence of crime
- protect justice and rule of law
2
Q
definition of crime
A
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.
3
Q
definition of criminal law
A
an area of law that aims to protect society from harm by defining prohibited behaviours and outlining sanctions for those who participate in illegal conduct.
4
Q
purposes of setting a minimum standard
A
The aim of this purpose is to regulate how each person in society should act and establish sanctions (consequences in criminal law) they will receive if they do not act in a certain way.
5
Q
purpose of protection of society
A
The aim of this purpose is to reduce danger and chaos in society, to ensure individuals in the community are safe and prevented from experiencing harm.
6
Q
the purpose of deterrence of a crime
A
the act of discouraging an offender or individuals from reoffending or
committing similar crimes through imposing a sanction (consequence in criminal law).
7
Q
the purpose of protect justice and the rule of law
A
to provide justice for victims of the crime, alongside their friends and family. To uphold fairness, those who commit crimes must face consequences for their actions.
8
Q
what are the 2 parties in criminal law?
A
- the accused
- the prosecution
9
Q
definition of the accused
A
These are individual/s who are accused of allegedly committing the crime. There can be one or multiple accused individuals. Once they have been found guilty or pleaded guilty, they are referred to as offenders.
10
Q
definition of the prosecution
A
These are lawyers that work within the Office of Public Prosecutions- a legal branch of government that is responsible for bringing criminal offenders to justice. They instigate and present the criminal case in court before the Magistrate or judge ( and jury) with the aim of providing that the accused is guilty to receive a sanction.
11
Q
What is the presumption of innocence?
A
a right of all accused person to be presumed innocent until they are proven guilty beyond a reasonable doubt or, the accused pleads guilty.
This law is protected under Section 25 of Charter of Rights and Responsibilities Act 2006 (Vic)
12
Q
4 ways which the presumption of innocence is upheld
A
- reasonable belief
- right to apply for bail
- prior conviction cannot be revealed
4.committal proceedings
13
Q
What is reasonable belief?
A
Police must have reasonable belief that the person has committed a crime before arrests are made.
14
Q
How does the right to apply for bail uphold the presumption of innocence?
A
Bail upholds the presumption of innocence because it allows the accused to remain relatively free whilst their trial proceedings through courts.
If they were denied bail and held in remand (custody), the accused will have been punished for an offence they have not proven (beyond reasonable doubt) to have committed. Therefore, bail ensures that the accused is not unduly punished until they have been convicted.
15
Q
Why can’t prior convictions be revealed?
A
If the accused has prior convictions, they cannot be revealed to the jury during trial. This ensures the jury does not have form a prejudice against the accused and can only convict the accused based upon the evidence presented before them.
16
Q
What are committal proceedings?
A
Hearing that occur before the Magistrate to determine whether the prosecution has sufficient evidence to proceed to trial. If the prosecution does not have sufficient evidence the proceed to trial, their case will not proceed, and the accused is discharged.
17
Q
What is the burden of proof?
A
The responsibility or onus of a party to prove the facts of a case.
In a criminal law case, the prosecution has the burden of proof.
18
Q
What is the standard of proof?
A
The level/degree or, the extent to which the case must be proven. This relies on the strength of evidence being presented in court to prove the guilt of the accused.
19
Q
What is beyond reasonable doubt.
A
The judge or jury must be convicted that there is no other logical, reasonable or alternative explanation other than the accused committed the crime.
20
Q
What are the 6 classes of crimes?
A
- Crimes against the person
- Crimes against property
- Cybercrime
- Hate crime
- Organised crime
- White-collar crime
21
Q
What is the classification of a crime?
A
The Nature of the crime,
What wrongful acts or omission was aimed at, the kind of harm inflicted, the type of victim or how the crime was committed.
22
Q
Crimes against the person
A
Acts that either cause harm to another individual or pose a threat of harm to them.
23
Q
Crimes against property
A
Criminal acts that employ force or deceit to acquire, damage, or demolish property.
24
Q
Cyber crime
A
Criminal activities aimed at computer systems such as introducing viruses.
25
Hate crimes
Acts of violence that stem from prejudice against a person’s gender, disability, race, religion ect
26
Organised crime
Criminal activity that is carried out in a systematic and premeditated manner by organised groups.
27
White-collar crime
Non-violent crimes that are driven by financial motives, these include fraud, pyramid schemes, embezzlement.
28
What are categorising crimes?
The severity of the crime, the magnitude of likely harm it would cause on individuals or society.
29
What is a Summary offence?
A criminal offence that is considered less serious in nature.
Legislation: Summary Offence Act 1966 (Vic) + Road Safety Act 1986 (Vic)
30
What is an Indictable offence?
Criminal offences that are considered more serious in nature than summary offences.
Legislation: Victorian Crimes Act 1958 (Vic)
They are heared in the County and Supreme court.
31
The definition of The right to silence
an entitlement whereby the accused does not have to say or do anything when being charged with an offence. It helps avoid self incrimination.
32
The Legislation of The right to silence
The Evidence Act 2008- negative inferences cannot be drawn should an accused refuse to answer questions
33
Why is The right to silence important?
1. It reinforces the burden of proof.
2. It ensures an accused is able to refrain from making such statement that could be incriminating.
3. Reduces the power imbalance between the prosecution and the accused. The police and other authorities cannot use their powerful position to force the accused who is comparatively more vulnerable into confessing.
34
What the the exception to right to silence?
If the police believes the person has committed or about to commit a crime, or may be able to assist in an investigation of an indictable offence, the person must give their name and address if asked to do so.
35
The definition of the right to be trialed without unreasonable delay
A person charged with a criminal offence is entitled to a guarantee that they will be trialed without unreasonable delay (Sections 21 and 25)
36
What is the right to be trialed without reasonable delay contained in?
The Charter of Human Rights and Responsibilities Act 2006 (Vic)
37
Why is the Right to be trialed without reasonable delay important?
1. Witnesses’ memories may fade, and key aspects may be forgotten which impacts the validity of the trial. This could cause unreliable evidence to be given which may result in an unfair result for the accused.
2. An upcoming trial may cause stress on the accused, victims and their families as the outcome for the criminal case remains unknown, possibly increasing anxiety for all parties.
38
The definition of the right to trial by jury
The entitlement that, should an accused plead not guilty to an indictable offence, their guilt must be determined by a group of 12 ‘peers’ rather than a judge alone.
39
What is the legislation of right to trial by jury?
The Juries Act 2000 (Vic)- requires a jury of 12
The Criminals Procedures Act 2009 (Vic)
Commonwealth Legislation- Section 80 of the Australian Constitution
40
Why is the right to jury important?
1. Provides the accused with an impartial and unbiased decision maker in criminal cases.
2. The presents of a jury will likely result in lawyers using clear, plain-English instead of legal jargon when presenting evidence. This enables all parties of the case, including the jury, the accused and the victim to understand the proceedings with greater ease.
3. A jury is more likely to represent a cross-section of community rather than judges who adjudicate criminal cases. This is because 12 jurors are likely to be of diverse experience, socio-economic status, age, occupation and ethnicity compared to judges.
41
What are the 2 Participants in a crime?
1. Principle offender
2. Accessory
42
Definition of a principle offender.
An individual who physically carries out the offence and/or is directly involved in the enactment of the crime. Their actions occur before and during the commission of the offence.
43
Can principal offenders get the maximum penalty, and how big is that penalty?
Yes, they can.
The maximum penalty is life imprisonment which is 25 years.
44
Definition of an accessory
A person whose action/s help the principal offender of a serious indictable offence to avoid being apprehended, prosecuted, convicted or punished.
45
What is the two criteria that both must be satisfied to be an accessory?
1. The individual must believe or know that the principle offender has committed the serious indictable offence
2. the individual acted in a way that helps the principle offender avoid arrest, prosecution, conviction or punishment.
46
Can an accessory get the maximum penalty?
No, the accessory’s penalty depends on the principle offenders and the accessory’s maximum penalty is lower than given to the principle offender.
47
What act outlines the maximum sanctions (penalties) given to principal offenders and accessories?
The Crimes Act 1958 (Vic)
48
What are the two elements of a crime?
1. Actus reus
2. Mens rea
49
Definition of actus reus
The physical element of a crime and refers to the wrongful acts or omissions the offender must have undertaken as part of a crime.
e.g punching or stabbing another person
50
Definition of mens rea
The mental element pf a crime, it is the guilty mind or, the offender’s awareness of their criminal behaviour and its potential consequences.
e.g the purchase of a weapon or attempting to hind evidence of the crime
51
Definition of strict liability offences
A type of offence that does not require the mens rea element of the crime to be satisfied to find the accused guilty and punished.
e.g speeding or running a red light
52
Why do we have strict liability offences?
To protect society from types of crimes where regardless of the offender’s intent, recklessness or negligence, their conduct is dangerous and must be discouraged thereby reducing the harm it poses.
53
Definition of murder
The unlawful and intentional killing of a human being by a person who acted voluntarily and without any lawful justification.
54
Is murder the most serious homicide offence?
Yes
55
What are the first 5 elements of murder in order.
1. The victim is a human being
2. The victim died
3. The accused was over the age of discretion (10 years old)
4. The accused’s act was voluntary (actus reas)
5. The accused’s act caused the dearth of the victim (actus reas)
56
Definition of element 1. The victim was a human being
The victim must be a living person not an object, animal or unborn child.
57
Definition of element 2. the victim died
Death is defined as the irreversible cessation of circulation of blood in the body, or the irreversible cessation of all functions in the brain (Humans Tissue Act 1982 (Vic))
58
Definition of element 3. age of discretion
The accused must be over the age of discretion, that is, the age at which they can form criminal intent or understanding of the wrongfulness of their actions.
The age of discretion is 10 years and above.
59
Definition of element 4. the act was voluntary
The accused must have had conscious and deliberate control of their bodily movements when committing the acts that killed the victim.
60
Definition of element 5. causation
The accused actions must have contributed directly and substantially to the victims death.
61
What 2 things must the prosecution establish to prove causation?
1. There was a direct, unbroken causal link between the accused’s actions and the death of a victim.
2. Substantial and operating ‘but for’ test, a test utilised in murder cases to determine the extent to which the accused’s actions caused the death of the victim.
62
Definition of element 5. Causation and Intervening acts
There may be an intervening act that breaks the chain of causation. When successfully proven, the accused can argue that an intervening act broke the chain of causation and therefore, there is no longer a direct/causal link between their actions and the death of the victim.
63
What are elements 6 and 7 in a murder case?
6. the accused acted with malice aforethought- intention or recklessness
7. The killing was unlawful
64
What’s the definition of malice and aforethought?
Malice: the desire to harm someone
Aforethought: the premeditation (thought something through), mind paid beforehand
65
How do we prove the ‘malice’ element of murder?
The prosecution must establish that the accused caused the death of another with either
1. the specific intention to kill or cause grievous bodily harm or
2. the knowledge that their act would probably or likely kill or cause grievous bodily harm but they nevertheless go ahead and commit the act with reckless indifference as to the consequences - while having no lawful excuse to do so.
66
What are the two types of malice aforethought that create two types of murder?
1. Intentional murder: malice aforethought is established by showing accused knew their intention to kill or cause GBH
2. Reckless murder: malice aforethought is established by showing the accused knew their actions would probably or likely kill or likely cause GBH to the victim, and the accused has done it anyway with reckless indifference.
*the distinction b/w these two lies in the the degree of knowledge the accused had about the probability that death or GBH was likely to occur*
67
How do we prove malice aforethought?
The subjective test
68
Definition of the subjective test
An evaluation of the mindset of the accused to assess mens rea, examining the evidence around the accused’s behaviour (before, during and after the commission of the crime), their age and their level of expertise regarding a topic.
69
What’s the subjective test for international murder?
1. Did they act with conscious desire to bring about death or GBH?
2. Did they act with certainty that death or GBH would result?
70
What is the subjective test for reckless murder?
1. Did they realise that death or GBH was a probable consequence?
2. Did they expect that death or GBH would be a likely result?
71
What is the structure for writing a subjective test?
‘Given the accused’s age, knowledge about the circumstances and their decisions to (insert action e.g bring a gun to the scene of the crime..)
72
Definition of element 7. unlawful killing
Without legal justification.
73
Definition of manslaughter
The unlawful killing of another person when deprived of the power of self-control by provocation (mitigating culpability for killing), or under circumstances amounting to diminished responsibility, or without intent to kill.
It is a homicide offence.
74
Sanctions for manslaughter are encoded in which part of the legislation?
What is the maximum penalty?
Crimes Act 1958 (Vic)- section 5
Whoever is convicted of manslaughter shall be liable to level 2 imprisonment (25 years maximum)
75
What are the 3 types of manslaughter?
1. Voluntary manslaughter
2. Involuntary manslaughter
3. One-punch manslaughter
76
Definition of voluntary manslaughter
The accused intended to kill but there is a mitigating factor that mitigates - lessens the culpability (responsibility for their wrongful actions) - for the crime making it less heinous/ bad.
e.g sudden drunken fight leading to killing
77
Definition of involuntary manslaughter
The accused exhibits negligent behaviour or unlawfully dangerous behaviour which led to the death of another person, but lacked intentionality, thereby reducing their culpability in causing death of the victim.
e.g medical negligence through palpably and overwhelmingly bad medicare.
78
Definition of one-punch manslaughter
An accused person intentionally strikes the victim in the head or neck, thereby directly causing the victims death or causing subsequent injury that leads to their death.
79
Similarities of manslaughter and murder
1. Both are serious offences that are categorised as serious indictable offences, as both cause great harm to individuals and society in causing the death of a person.
2. Both are punished by long imprisonment terms, murder: maximum is life + manslaughter: maximum is 25 years.
3. Both are homicide offences, meaning they both involve a killing of a person, and as such inflict a high degree of harm upon individuals and society.
80
Differences of manslaughter and murder
1. Murder requires malice aforethought to be established, this means the prosecution must show intentionality or knowing recklessness for murder to be proven, meanwhile manslaughter does not always require intentionality to be proven.
2. Manslaughter is less premeditated. It can include circumstances where the accused is suddenly provoked, therefore mitigating- lessening the culpability (responsibility for their wrongful acts) in killing, meanwhile murder requires a higher degree of culpability than manslaughter. As malice aforethought must be proven for murder, offenders of murder ate more responsible for the death of their victims.
81
One punch offences
In Victoria, “one-punch law” (officially the Sentencing Amendment (Coward’s Punch Manslaughter and Other Matters) Act 2014) mandates a maximum 10 year prison sentence for manslaughter involving a single punch or strike to the head or neck, if it causes death.
82
4 impacts of homicide on victims and their families
1. Physical impact: several physical health problems may occur to people close to a homicide victim following the offence e.g grief, experiences of insomnia, cardiac issues.
2. Phycological: family and friends can experience phycological issues e.g post- traumatic stress, depression, severe stress.
3. Economic: Victim may be the primary financial provider for a family, the whole family may suffer economically because loss of main income earner.
4. Social: high stress associated with homicide can cause discomfort, strain and distancing in relationships for the victim’s family members as friends may feel, they cannot provide adequate support.
83
4 impacts of homicide on society
1. Economic: local communities with high rates of homicide can develop an unsafe reputation leading to lack of people living in the area which can bring house prices down and loss of income to businesses.
2. Social: members of a community with high rates of murder can live in fear, constant worry over their safety or develop hostility towards certain groups of individuals they perceive to be responsible for increase crime rates.
3. Legal: continuing instances of violent crimes may prompt the government to pass harsher laws to try reduce the frequency of homicide.
4. Health: the health of the community can be impacted as members of society may be witnesses to homicides such as manslaughter, possibly causing them to experience ptsd, anxiety and other mental health challenges.
84
4 impacts of homicide on the offender
1. Physical impact: offender may have sustained minor or severe injuries in the commission of the offence.
2. Physiological: they may be feeling guilt, regret, remorse, shame and humiliation.
3. Economic: the offender may be likely to experience loss of earnings if they are unable to work due to being in remand/term of imprisonment.
4. Social: the accused may experience negative impacts of their social life as they are not able to regularly see their family and support networks.
85
Changes in one-punch sentencing laws
Reforms created a statutory minimum penalty for killing that occurs in circumstances involving a coward’s punch or gross violence. This set of reforms included a new provision to s9C of the Sentencing Act 1991 (Vic) to include a mandatory minimum (with non-parole) period of imprisonment of 10 years.
86
Reasons for change in one-punch sentencing laws
It embedded the elements of one-punch manslaughter in the Crimes Act 1958 (Vic) to make the law more clearer and explicit. Also making it more known and stable, as Acts of parliament are more easier to access than courts decisions and as parliament is supreme, its laws are unlikely to change unless a new set of elected representatives choose to.
87
What’s are the 3 types of sanctions used in criminal justice system in Australia?
1. Fines
2. Community Correction Orders
3. Imprisonment
88
Definition of a fine
A monetary penalty that is payed by the offender to the state.
Payed in penalty uniting ranging from 1-3000
One penalty unit: 197.59
89
Definition of Community Correction Orders
A non-custodial order by the court that allows the offender to remain within the community with certain conditions attached e.g rehabilitation or community service.
90
Mandatory Community Correction Orders (CCO)
1. Not reoffend during the duration of the CCO
2. Not leaving Victoria without permission
3. Notifying CCO supervisor if there is a change of address
4. Comply with directions given by the CCO
91
Option CCO conditions
1. Completing unpaid community work
2. Abiding by a curfew
3. Avoiding contact with a particular person
4. Staying away from a particular place or suburb ect
92
Definition of imprisonment
A sanctions that removes the offender from the community and places them in prison for a given period of time.
93
What is the purpose of sanctions?
Punishment, protection, denunciation, deterrence, rehabilitation.
94
What is punishment and why is it important?
Punishment involves penalising the offender and holding them accountable when they have done something unacceptable. Ensuring retribution for the victims and their families who will be discouraged from enacting revenge.
95
How is protection achieved and why is it important?
It is achieved by removing offenders from society to ensure they do not pose a risk to the safety and welfare of their victims or society as a whole.
96
What is Denunciation?
Denunciation is often emphasised in cases that involves offending that could be undertaken by many members of society.
The court aims to publicly and formally criticise the offender’s criminal behaviour, expressing its disapproval of the offender’s acts to highlight how the offender has violated the moral and ethical standards of society.
97
What is the aims of deterrence?
Deterrence aims to prevent an offender, or general public, from reoffending or committing a crime.
98
Why is rehabilitation used
Achieved by sanctions that seek to break the cycle of offending and address the underlying cause of criminal behaviour. It is societies best interests to help the offender reform to reduce crime rates and cost of imprisonment.
99
Definition of sentence
The order given by a court to impose a sanction upon those found guilty of an offence.
100
Definition of sentencing
The stage after a trial that found an accused person guilty, where a Sentencer (Magistarate or Judge) determines an appropriate sanction for the committed offence.
101
Definition of standard sentences
The sentence that sound be imposed for 'middle of the range seriousness' offending, before the judge takes into account other sentencing factors relevant to the case.
102
What are 4 sentencing factors?
1. Mitigating factors
2. Aggravating factors
3. Guilty pleas
4. impact of the crime on victims
103
lkDefinition of mitigating factors
Circumstances relevant to the offender, the victim or crime itself that may decrease the offenders culpability, thus lessoning the severity of the offence and ultimately the type of sentence imposed.
104
What are some key mitigating factors?
1. The offender showed remorse e.g cooperating with police, pleading guilty early, general behaviour in court hearings
2. The offender has no prior criminal history or is of good character
3. The offender was acting under duress
4. the offender has showed efforts towards rehabilitation while awaiting sentencing
5. Offender was under personal strain at the time, or they have an unique background e.g difficult or violent background
6. Effects prison may have on the offender
105
Definition of aggravating factors
Circumstances relevant to the offender, the victim or crime itself that may increase the offenders culpability, thus increasing the severity of the offence and ultimately the type of harshness of the sentence imposed.
106
What are some key aggravating factors?
1. The use of violence, explosive or a weapon when committing the offence
2. The offence was planned or premeditated
3. The nature or gravity of the offence
4. Vulnerability of the victim (such as having a disability or being very young or old)
5. The offender being motivated by hatred or prejudice against a group of people with common characteristics
6.The offence took place in front of children, or was witnessed by children
107
Definition of Guilty plea
When an offender formally admits guilt, which is then considered by the court when sentencing.
108
Definition of Victim Impact Statement (VIS)
A statement filed with the court by a victim that is considered by the court when sentencing that contains particulars of any injury, loss or damage suffered by the victim as a result of the offence.
