Unit 1 AoS2 - The Presumption of Innocence (SAC)

Question 1

Outline the purposes of criminal law.

Answer 1

• protect individuals
• protect property
• protect society
• protect justice

Question 2

How is the presumption of innocence protected?

Answer 2

• The standard of proof is beyond a reasonable doubt.
• The burden of proof is on the prosecution.
• Police must reasonably believe a person has committed a crime before arresting them.
• An accused has the right to legal representation.
• An accused has the right to silence.
• Generally, no previous convictions can be revealed in court until the sentencing.
• A person convicted of a crime has the right to appeal.

Question 3

Explain the age of criminal responsibility.

Answer 3

The minimum age a person must be to be charged with committing a crime.

Under 10 = cannot be charged with a crime.
10 - 13 = can if the prosecution proves the child knew their actions were wrong.
14+ = can be charged with a crime.

Question 4

Identify and explain the elements of a crime.

Answer 4

Elements of a crime: A general principle of law states that there is no guilty act without a guilty mind.

Actus reus (guilty act): the action, inaction, or omission that the prosecution needs to prove in order for them to be found guilty of an offence.

Mens rea (guilty mind): Mental element of a crime/the person’s state of mind. The prosecution must prove they intentionally committed the wrongful action.

Question 5

Explain strict liability.

Answer 5

• No mental element only actus reus needs to be proven.
• Many are summary offences eg. consuming liquor while driving
• Some cases the accused argues it was committed due to a reasonable and honest mistake.
• The elements of crime do not apply.

Question 6

Explain the age of criminal responsibility .

Answer 6

The minimum age a person must be to be charged with committing a crime.

under 10 = cannot be charged with a crime.
10 - 13 = can if the prosecution proves they knew the action was wrong.
14+ = can be charged with a crime.

Question 7

Explain the burden of proof.

Answer 7

The burden of proof
* the responsibility to prove the allegations made in a case
* the burden of proof is held by the person or party who initiates or brings the case to court

Question 8

Explain the standard of proof.

Answer 8

The standard of proof
* the strength of evidence needed to prove a legal case
* the prosecution must prove the case beyond reasonable doubt

Question 9

Explain Indictable offences

Answer 9

Serious crimes generally heard and determined in the higher courts (i.e. the County Court and Supreme Court) before a judge and jury.

Question 10

Explain Summary offences

Answer 10

Minor crimes heard and determined in the Magistrates’ Court by a magistrate

Question 11

Distinguish between summary offences and indictable offences.

Answer 11

SUMMARY OFFENCES:
* Minor crimes
* Generally heard in the Magistrates’ Court
* The final hearing, at which both parties put their case before the court is known as a hearing
* A magistrate determines whether the person charged with a crime is guilty

INDICTABLE OFFENCES:
* Serious crimes
* Tried in the County Court or Supreme Court
* The final hearing, at which both parties put their case before the court is known as a trial
* When an accused pleads not guilty, a jury determines the verdict i.e. whether or not the accused is guilty beyond reasonable doubt)

Question 12

Explain an accessory to a crime.

Answer 12

An accessory is a person who knowingly assists another person who has committed a serious indictable offence to avoid being apprehended, prosecuted, convicted or punished.

Question 13

Outline the general defences to crime

Answer 13

• Self-defence
• Mental impairment
• Duress
• Sudden or extraordinary emergency
• Automatism
• Intoxication
• Accident

Question 14

Explain the defence: Self-defence

Answer 14

An accused may use self-defence as a defence to a crime if they:
- believed that their actions were necessary to protect or defend themselves, and
- perceived their actions to be a reasonable response in the circumstances.

The burden of proof falls on the prosecution to prove
beyond reasonable doubt that the accused did not act in self-defence.

Question 15

Explain the defence: Mental impairment

Answer 15

An accused may use the defence of mental impairment if, at the time of
the offence, they were suffering from a mental illness and, as a result, they:

• did not know what they were doing because they had little understanding of the nature and quality of their actions, and
• did not know their conduct was wrong or could not reason, or think
  about, their conduct like an ordinary person.

An accused is presumed to not be suffering from a mental impairment unless it can be proven otherwise. The burden of proving the existence of a mental impairment falls on the party who raises it.

Question 16

Explain the defence: Duress

Answer 16

An accused may use duress as a defence to any criminal offence if, at the time of the offence, they had reasonable belief that:

• a threat of harm existed
• the threat would have been carried out unless the offence was committed
• committing the offence was the only reasonable way to avoid the threatened harm, and
• their conduct was a reasonable response to the threat.

Once the defence raises the issue of duress, the prosecution holds the burden of proving, beyond reasonable doubt, that the accused did not act under duress.

Question 17

Explain the defence: Sudden or extraordinary emergency

Answer 17

An accused may use sudden or extraordinary emergency as a defence to any criminal offence if, at the time of the offence, they had reasonable belief that:

• there was a sudden or extraordinary emergency
• their actions were the only reasonable way of dealing with the situation, and
• their actions were a reasonable response to the situation.

Once an accused raises the defence of sudden or extraordinary emergency, the burden of proof falls on the prosecution to prove, beyond reasonable doubt, that the accused did not act in the circumstances of a sudden or extraordinary emergency.

Question 18

Explain the defence: Automatism

Answer 18

An accused may use automatism as a defence to any criminal offence if the accused commits an offence:

• while sleeping or sleepwalking
• while suffering concussion
• during an epileptic seizure, or
• as a result of a medical condition or because of a side effect of the proper use of medication.

The burden of proof varies according to the cause of the automatism, but in general, the prosecution must prove,
beyond reasonable doubt, that the accused acted voluntarily.

Question 19

Explain the defence: Intoxication

Answer 19

An accused may use intoxication as a defence to a criminal offence if, at the time of the offence, they:
- acted involuntarily or without intent due to being in an intoxicated state as a result of consuming alcohol, taking drugs, or ingesting some other substance.

In general, to successfully argue intoxication, the accused must prove that their state of intoxication was not self-induced.

Question 20

Explain the defence: Unfit to stand trial

Answer 20

A person may be considered to be unfit to stand trial if they are unable
to undertake a number of tasks at the time of their trial, including being
unable to:
- understand the nature of the charges laid against them
- follow the course of the trial, and
instruct their lawyer.

Question 21

Define murder and the elements that must be proven to be found guilty of murder.

Answer 21

Murder is the unlawful killing of another person with malice aforethought by a person who is of the age of discretion and of sound mind.

• The killing was unlawful
• The victim was a human being
• The accused was a person over the age of discretion
• The accused caused the victim’s death
• The accused was a person of sound mind
• There was malice aforethought

Question 22

Identify the defence to murder

Answer 22

• Self-defence
• Mental impairment
• Duress
• Sudden or extraordinary emergency
• Automatism
• Intoxication
• Accident

Question 23

The role of the law in developing the elements of and defences to murder

Answer 23

Common law
• Murder is an old common law offence.
• The definition and elements of murder, and some of the defences to murder, have been established throughout the years by the courts.

Statute law
• The penalty for murder is established by parliament and set out in statute law.
• The Victorian Parliament can pass legislation at any time to change the law relating to murder.

Question 24

Identify the possible impacts of murder and provide examples

Answer 24

IMPACT ON THE VICTIM AND THEIR FAMILY
- Loss of life
- Funeral costs
- Loss of household income

IMPACT ON THE COMMUNITY
- Cost of publicly funded medical treatment (if death was not immediate)
- Need for coronial services
- Increased need for police, fire and emergency services

IMPACT ON THE OFFENDER
- Guilt or shame in causing a death
- Legal costs
- Negative influences as a result of exposure to prison

Question 25

Define culpable driving causing death

Answer 25

Culpable driving causing death is the act of causing the death of another person while driving a motor vehicle in a negligent or reckless manner or while under the influence of drugs and alcohol.

Question 26

Outline the elements needed to be found guilty of culpable driving causing death.

Answer 26

1. The accused was the driver of a motor vehicle
2. The accused culpably caused a person’s death while driving the motor vehicle
   
   • Driving recklessly
   • Driving negligently
   • Driving under the influence
     (drugs/alcohol)

Question 27

Outline the defences to culpable driving causing death

Answer 27

• The accused was not driving the vehicle
• The accused’s driving was not culpable
• Duress
• Sudden or extraordinary emergency
• Automatism

Question 28

Identify the possible impacts of culpable driving causing death and provide examples

Answer 28

IMPACT ON THE VICTIM AND THEIR FAMILY
- Loss of life
- Disruption to family life
- Funeral costs

IMPACT ON THE COMMUNITY
- Need for coronial services
- Increased need for police, fire and emergency services
- Damage to community property

IMPACT ON THE OFFENDER
- Guilt or shame in causing a death
- Legal costs
- Damage to, replacement or impounding of a vehicle

Question 29

The role of the law in developing the elements of and defences to culpable driving causing death

Answer 29

Common law
- The elements of culpable driving causing death do not have a history of long, slow development through common law.
- Over the years, the courts have assisted in clarifying driving laws including the statutory elements of culpable driving causing death.
- Automatism - a defence that can be raised to defend a charge of culpable driving causing death - is a common law defence.

Statute law
- Culpable driving causing death is a statutory offence under section 318 of the Crimes Act.
- This offence has been refined by the courts through the process of statutory interpretation.
- In 2004, the Victorian Parliament passed legislation to create the crime of dangerous driving causing death - an intermediate offence between culpable driving causing death and dangerous driving.
- Most reform related to indictable driving offences has generally been limited to altering the maximum penalty for the offence to reflect changes in community attitudes.

Question 30

Provide examples of indictable and summary offences.

Answer 30

SUMMARY OFFENCES:
- Drink-driving
- Graffiti
- Speeding

INDICTABLE OFFENCES:
- Murder
- Manslaughter
- Sexual assault