Unit 1 AOS3

Question 1

purposes of criminal law

Answer 1

to protect individuals, protect property, protect society and protect justice

Question 2

protecting individuals

Answer 2

Criminal law aims to protect individuals by establishing crimes and processes to deal with people who commit these crimes. It safeguards personal rights by clearly defining unacceptable behavior and providing legal remedies for victims. By punishing offenders, it helps prevent future harm and ensures the safety of the community.
E.g. laws that make murder, theft, rape, arson and robberies crimes are aimed at protecting individuals from these types of behaviours

Question 3

protecting property

Answer 3

Criminal law aims to protect protect privately owned and public property. This includes protecting land and the environment, and personal goods. For example, it is an offence to trespass on, or take without permission (i.e steal), another person’s property.

Question 4

protecting society

Answer 4

Criminal law aims to protect the community as a whole by setting standards and making it clear what behaviour is not tolerated by the community and the legal system. This helps to maintain public order and community safety. For example laws prohibiting drug offences and terrorism offences help to protect society

Question 5

protecting justice

Answer 5

Criminal law aims to promote and protect justice by providing processes to deal with offenders and to enforce the law. Having the state enforce criminal law helps prevent victims of a crime, their family and friends, from taking the law into their own hands and imposing their own punishments on an offender.

Question 6

crime

Answer 6

An act or omission that is against an existing law, harmful both to an individual or to society, and punishable by the law.

Question 7

the presumption of innocence

Answer 7

It is a guarantee by the state to its citizens that if they are accused of a crime they will be considered/assumed to be and treated, as far as possible, as being guilty until the charge has been proven beyond reasonable doubt.

Question 8

8 principles/processes that uphold the presumption of innocence

Answer 8

1) the burden of proof IS ON THE PROSECUTION - prosecution must prove criminal culpability, rather than the accused proving their innocence.

2) the standard of proof must be met - prosecution must provide sufficient evidence to prove the accused is guilty beyond reasonable doubt.

3) police officers must reasonably believe a person committed a crime before arresting them.

4) a person who has been arrested and charged has the right to apply for and be granted bail unless there are good reasons why they should be denied their freedom and be held in custody

5) an accused has the right to legal representation in court - in a serious offence, the court can adjourn the trial until the accused has obtained legal rep

6)an accused as the right to silence and their silence should not be interpreted as a sign of their guilt

7)the accused previous convictions cannot be revealed in court until the sentencing process beings

8) a person who has been convicted/found guilty of a crime has the right to appeal

Question 9

actus reus

Answer 9

‘guilty act’ - physical element of a crime.
For a person to be found guilty of committing a crime, the prosecution must prove the person physically did the wrongful action (or inaction)

Question 10

mens rea

Answer 10

guilty mind - mental element of a crime.
For a person to be found guilty of committing a crime, the prosecution must also prove that the person knowingly or intentionally committed the action or inaction.
it refers to the state of mind of the accused at the time of the offending.

Question 11

example of actus reus and mens rea

Answer 11

• in a theft case, the accused walked into a store, picks up a phone and leaves. If the offender accidentally took the phone thinking it was theirs, the case lacks mens rea because the accused did not intend to steal.
• however, if the accused knowingly took the phone with the intent to keep it, then both actus reus and mens rea are present, the act of taking the phone and the intention to steal and keep it.
• meaning he should be found guilty of theft

Question 12

crimes of strict liability

Answer 12

• crimes of strict liability are offences that do not have a mental element - mens rea
• this means for strict liability cases, the prosecution is not required to prove that the accused had the intention to commit the crime. to establish the accused is guilty, the prosecution is only required to prove that the accused committed the wrongful action or inaction (Actus reus)

Question 13

examples of strict liability cases

Answer 13

• many summary offences
• consuming intoxicating liquor while driving
• fare evasion on public transport
• failing to display p plates while driving on probationary driver license

! for strict liability cases the accused may argue, in their defence, that the crime was committed due to a reasonable or honest mistake of fact

Question 14

age of criminal responsibility

Answer 14

• the age of criminal responsibility is the minimum age a person must be to be charged when committing a crime.
  ! some people may not be held responsible bc they are considered to be too young to form the intention (mens rea)

whether a person can be charged with committing an offence depends on their age:
1. a person under 10 cannot be charged with a crime
2. children aged 10 - 13 can be charged if prosecution can prove that the child knew at the time of the crime that their actions were wrong - this is known as rebutting the legal principle of doli incapax
3. person 14 or over is considered to be criminally liable for their actions and can be charged

Question 15

doli incapax

Answer 15

means incapable of evil
it is the presumption that a child aged 10-13 is incapable of forming mens rea (criminal intent) bc they do not have the intellectual or moral capacity to know between right and wrong.
- factors like age, maturity and upbringing and prior behaviour can influence whether the child is doli incapax. medical and psychological assessments also help assess whether the child had the capacity to recognise their actions as crimes.

Question 16

the burden of proof

Answer 16

the responsibility to prove the allegations made in a court
- in general it is held by the person/party who initiates or brings the case to court.
in a criminal case the burden of proof is held by the prosecution meaning they must provide evidence to prove the guilty of the accused beyond reasonable doubt.

Question 17

the standard of proof

Answer 17

is the strength of the evidence needed to prove a legal case.
in criminal law, the prosecution must prove the case beyond reasonable doubt.

! a reasonable doubt must be sensible and realistic and not one that is an unrealistic possibility.
!! it is not enough that the accused is probably guilty or very likely to be guilty.

Question 18

categories of the nature of the offence

Answer 18

crimes against the person and crimes against property

Question 19

against a person

Answer 19

• crimes against the person involve causing physical harm/threats to cause harm affecting their physical or emotional well-being.
• crimes against the person causes harm physically and/or emotionally to an individual
• in crimes against the person the focus/aim is on harming individuals directly
  e.g.- homicide: murder, attempted murder, manslaughter, infanticide, child homicide, driving related homicide
• rape, assault, battery, kidnapping

Question 20

crimes against property

Answer 20

• involve taking and/or damaging a person’s property - MAINLY RESULT IN FINANCIAL LOSS OR DAMAGE TO POSSESSIONS
• involve damage to or theft of someone’s belongings/property without directly harming them.
• the focus is on taking, damaging or interfering with possessions of land belong to another

e.g. theft, robbery, burglary
- blackmail, fraud
- carjacking, home invasion, property damage, arson, identity crime

Question 21

when smth is a crime against both the person and property

Answer 21

• sometimes the same act can be both a crime against the person as well as a crime against property.
• E.G. ROBBERY involves taking property from another person - crime against property - but it also involves the use or threat of violence - crime against the person

Question 22

summary offences

Answer 22

minor offences generally heard in the magistrates court. the magistrate will determine whether the person charged with a crime is guilty
eg. traffic offences, drink driving, disorderly conduct
- a person charged with a summary offence will receive a summons, which informs the defendant where the case will be heard - the magistrates court - and the mention date - hearing.

Question 23

indictable offences

Answer 23

• serious offences generally heard by a judge and a jury of 12 (only if accused pleads NOT GUILTY), in the county or supreme court
  eg. homicide, robbery, rape

Question 24

indictable offences heard summarily

Answer 24

• some idtable cases may be hear din the magistrates court where the court believes or is satifistied it is appropriate for the offence to be heard by a magistrate.
• the accused is offered a choice if they want the case to be determined as an indtablce matter in a superiour court by a jury of one that can be determined immediately in the magistrates court

Question 25

indictable offences heard summarily conditions + examples + why accused may want their case heard in magistrates

Answer 25

- e.g. theft of property not exceeding $100,000, theft of a motor vehicle, or possession of an unregistered weapon. - accused may want their case heard in the magistrates court bc cases r dealt with faster, are less expensive, avoids a jury and the penalties are lighter ! conditions considered before indictable offence is heard summarily: 1) the offence must be one that law defines as being summarilirty heard, as stated in legislations - crimes act 1958 vic, criminal procedures act 2009 vic. 2) the court must agree it is an appropriate case to be heard fin the magistrates court

Question 26

distinction between summar and indictable offence

Answer 26

firstly, summary offences are considered to be minor crimes, such as disorderly behaviour or common assault, whereas indictable offences, involve more serious crimes including offences like murder, rape or armed robbery. secondly, summary offences are heard exclusively in the magistrates court and are dealt with through a *hearing*, whereas indictable offences are heard in the county or supreme court through a *trial* thirdly, indictable offences have the right to a trial by jury, meaning if the accused pleads not guilty their case will be heard by a jury of 12, whereas summary offences are determined solely by a magistrate wo a jury.

Question 27

principal offender

Answer 27

- the person who commits an offence - both the actus reus and usually has the mens rea when committing the crime - any person 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* E.G. A PERSON WHO ACTS AS A LOCKOUT IN A BANK ROBBERT CAN STILL BE CONSIDERED A PRINCIPAL OFFENDER

Question 28

accessory offender

Answer 28

- a person who without lawful excuse knowingly assists a principal offender after a crime has been committed - this assistance includes helping principle offender avoid being arrested, prosecuted, convicted or punished for the crime. - the person must believe or know that the offender has committed a serious indictable offence - they can be found guilty regardless of whether the principal offender is found guilty

Question 29

murder

Answer 29

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 are all crimes that involve the killing of another without legal justification.

Question 30

elements of murder

Answer 30

* the killing was unlawful * the accused's acts were voluntary * the accused committed acts that caused the victim's death * the accused acted with intent to kill or cause serious harm.

Question 31

element 1 - the killing was unlawful

Answer 31

the prosecution must prove the accused did not have a legal justification (or lawful reason) for causing the other person's death. e.g. of legal justification - acting in reasonable self defence or under duress

Question 32

element 2 - the accused act's were voluntary

Answer 32

- the prosecution must prove the accused committed the acts when they were awake, aware and in control of their actions. e.g. the accused cannot be sleepwalking or in an epileptic seizure. - the accused actions must have also been deliberate and not the result of an unintentional accident (manslaughter)

Question 33

element 3 - the accused committed acts that caused the victims death

Answer 33

the prosecution must prove the accused committed acts that contributed *significantly* and *substantially* to the victim's death. - that is the prosecution's must prove the acts were committed (such as the shooting of a gun) and also prove *causation*, meaning it must be proven that there was a *direct and unbroken link between the accused actions (shooting gun) and the death of the victim (dying from gun)* -if the death would not have occurred when it did without the accused actions it is likely the accused caused the victims death, - by contrast, if something intervenes to break the casual link between the accused actions and the death, then the accused may not be guilty of murder.

Question 34

element 4 - the accused acted with intent to kill or cause serious harm

Answer 34

the prosecution must prove the accused acted with a guilty mind i.e. the mental element - mens rea existed 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 really serious harm, or - knew that it was probable that death or really serious injury would be a result of their actions.

Question 35

defences to murder - using the elements

Answer 35

the accused may argue that one, or more, of the elements are missing: 1. they did not intent to kill or seriously harm the person 2. there was a break in causation, and their actions did not significantly and substantially cause the victims death 3. their actions were not unlawful

Question 36

self - defence

Answer 36

in murder cases, the accused must believe their actions were necessary to protect themselves or another person from death or significant serious injury. a person if not guilty of an offence if the person carries out the conduct constitution the offence in self defence if: 1. the person believes that the conduct is necessary in self-defence, and 2. the conduct is a reasonable response in the circumstances as the person perceives them.

Question 37

mental impairment

Answer 37

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: 1. did not know what they were doing bc they had little understanding of the natural and quality of their actions and 2. did not know their conduct was wrong or could not reason or think about their conduct like an ordinary person

Question 38

what happens if mental impairment is used as a defence

Answer 38

- when mental impairment is argued successfully, a special verdict of NOT GUILTY BY REASON OF MENTAL IMPAIRMENT is handed down - the court may impose a SECURE TREATMENT ORDER that allows the accused to b compulsorily detained and receive treatment at a mental health service.

Question 39

intoxication

Answer 39

intoxication means intoxicated bc of the influence of alcohol, a drug or any other substance. ! a persons intoxication must not be self-inducted intoxication is self induced unless it came about - a - involuntarily or b - bc of fraud, sudden of extraordinary emergency, accident, reasonable mistake, duress of force, or c - from the use of a drug for which a prescription is required and that was used in accordance with the direction of the person who prescribed it

Question 40

possible impacts of murder on the victim and their family and friends

Answer 40

- loss of life - disruption to family life - trauma, grief and loss shock, fear, grief, confusion , anger and emotional trauma on family and friends-> this is made worse when they witness the attack, discover the body or learn specific details about the physical circumstances of the death and also when the outcome of the case takes longer

Question 41

possible impacts of murder on the community

Answer 41

- eroding public confidence in the ability of the police and criminal justice system to protect the public - people who live in close proximity to where the murder occurred may no longer feel safe - people in broader communities may also feel vulnerable and become cautious about who they talk to and where they go.

Question 42

possible impacts of murder on the offender

Answer 42

- guilt or shame in causing a death - legal costs - custodial sentence - negative influence as a result of exposure to prison - diminishment of the family's social standing and wellbeing ! loss of income - from imprisonment and inability to find new job