Flashcards in Unit 4 AOS2b Deck (53):
Is defined as an act or omission that is against the law, that is harmful to an individual or society as a whole and is punishable by law.
Elements of crime
- Actus reus
- men's Rea
Age of criminal responsibility
Under 10 cannot be charged, between 10-14 years mentally incapable of committing a crime, this can be overturned if it can be shown that the child understood that what they were doing was wrong.
Are minor criminal offences heard in the magistrates court
Are serious crimes heard before judge and jury
Prosecution and accused
Right to silence
-Recognition of basic human rights
-The accused is presumed innocent until proven guilty and has the right to remain silent both during the investigation of the crime and during court proceedings
-Must give name and address other than that can remain silent
-Must not be punished/targeting and concluded by judge or jury they're guilty because they don't speak
-Protects the accused from saying something that may be incriminating
Criminal pre trial procedures are the processes and procedure that occur before a trial commences criminal pre-trial procedures commence once the suspect has been found. These procedures include:
police investigation and questioning
committal proceedings (or preliminary hearing).
Alternative outcomes for a person brought into custody
-Given a cautioning notice
-Released pending summons
-Charged and released on bail
An arrest allow the police to take a suspect into custody. A person may be arrested with or without a warrant. Reasonable force may be used when making an arrest and, under common law, if a suspect cannot be arrested without being killed, then the suspect may be lawful killed. The coroner investigates all police killings
Conditions of bail
-Report to police station
-Reside at a particular address
-Submitting to a curfew
-That the accused not contact specified people or classes of persons
-Not drive or carry passengers when driving
-Specify location or zones must not visit
What is Bail? By whom and where can bail be granted
-Accused is released from custody after being charged on condition that they appear in court at a later date
-Most accused are granted bail and released on their own undertaking (a promise to appear in court when required or a surety (18+) promises to pay a sum of money if the accused fails to attend court
-Bail can be granted at time of arrest, during trial, while you wait for sentencing or an appeal
-A bail justice, police officer, magistrate
Purpose of bail
-Allow an accused person to go (free until the hearing or trial as a person is presumed innocent until proven guilty
-Allows the accused person time out of custody to prepare their case
-Not granted bail = remand
Bail may be refused by a person if?
-Charged with murder or treason
-Already in custody for another crime
-Risk to society
-Risk of absconding
-Interfere with witnesses or otherwise obstruct the course of justice in relation to themselves or to others
-Commit offence on bail
-Endanger the safety or welfare of members of the public
What is a surety ?
Person over the age of 18 who agrees to pay an amount of money to the courts if the accused does not show up to court when required
-If bail is refused, the defendant will be remanded in custody until the case comes to trial or until bail is granted
-Someone who is refused bail will be held on remand until the case comes to trial, or until bail is granted in the future. Thi means they are held in custody
-Men generally sent to HM Melbourne Assessment prison
-Women usually sent to the Dame Phyllis frost centre
-Children sent to youth justice centre and can't be held for more than 21 days before they go to court
-If found guilty the time in remand will be deducted from any prison sentence given
-If found not-guilty is not usually entitles to any compensation for the time in prison. Bail is therefore usually granted and refused reluctantly
Plea/ charge bargaining
Involves agreement being made between the accused and the prosecutor, on an informal basis, about the charges to be laid. This may lead to some charges being dropped in exchange for a guilty plea to the main charges or in exchange for evidence being given. Advantages of plea bargaining include reducing delays and court time, but may lead to innocent people being pressured into pleading guilty for a lighter sentence
Burden of proof
lies with the PROSECUTION unless the accused displeasing a one of the recognised defences
Standard of proof
required is BEYOND REASONABLE DOUBT
Indictable offences are more serious criminal offences, including murder and rape, which are tried before a jury and judge
-One of the steps to take place before a criminal case is tried in the county court or supreme court, is a committal proceeding, which involves different types of hearings in the magistrates court to determine whether a case is ready for trial.
Aim and purpose of committal proceedings
-Determine if there is sufficient weight to support a conviction by a jury at trial.
-Ensure a fair trial
-Clarify the issues -save time and resources of higher courts
-Determine how the accused proposes to plead to the charge/charges
What happens at committal mention court hearing
-The informer and the accused must attend this hearing unless excused.
At a committal mention hearing, the magistrates' court may take up the following courses of action:
-Court must ask the accused how he/she pleads
-Pleads guilty and court dissatisfied that the evidence isofsuofience weight to support a conviction at trial, the court must commit him or her for sentencing and inform the accused that the sentencing court may take into account a pea of guilty
*Committal hearing may be conducted immediately
*Court may determine whether the matter should be dealt summarily
-Court may hear an application to cross examine a witness if successful oral evidence is provided by witness
-If unsuccessful = hand up brief
-The court may fix date for comital hearing and hear and determinant objection to disclosure of material
If committal is contested what will magistrate need to know
-How many the accused will cross examine = determines length of time of a committal = reduces delays
-Number of witnesses that are going to be called and cross examined
What is a hand up brief what is its purpose
Written statement aimed to speed up the process of committal processing and means the witnesses and the accuses only need to provide and explain events once, in open court at the trial which are contained in a hand up brief
-Eliminated the need for oral evidence, unless requested todo so
-Hand up brief contains a copy of the charge sheet, copies of documents the protection intends to produce as evidence, copies of witness statements, interview transcript and photographs
-Accused is entitles totnehand up brief atlas 42 days before the committal mention hearing unless the court states otherwise and there are alternative arrangements
-Contains hearing dates and their purpose (future)
Sanctions are the punishments imposed by courts
Eg. fines, imprisonment, community corrections order
-The offender should be punished to an extent that is just in all the circumstances and so that society can feel there has been retribution. Necessary for society to feel that there has been some revenge against the offender. The process of punishment through the court avoids the need for the victim of crime to take the matter into their own hands and seek revenge, and cause disruption to society.
-Sanction should be such that it will deter the offender or other people from committing the same or similar offence. Sanctions are aimed to discourage people from committing crimes (general deterrence) because it is aimed at deterring the general public. Sanctions can also be specific deterrence in that they can deter the offender from committing he same offence again.
-Courts consider sanctions that can help rehabilitation. Aim of sanctions to assist offenders to change there attitudes and be ready to take place in society e.g bond or CCO to encourage rehabilitation rather than imprisonment. A CCO can also assist in requiring an offender to participate in training in a variety of skills. Prisons also have programs such as trade training aimed at assisting prisoners.
-Removal from society (put in prison) to be physically prevented from reoffending. CCO can protect by keeping busy when they might otherwise be engaging in criminal activity (can be abused). A court can give a serious offender (drug, arsonist, sexual or violent offender who has previously been charged and served imprisonment) a longer sentence than is appropriate to the gravity of the offence in order to protect the community.
-Refers to disapproval by the courts. A particular punishment may be given to show the community that the court disapproves of the offenders conduct.
Types of sanctions
- community correction order
A fine is a monetary penalty laid by the offender to the court. Usually a prescribed fine for particular offences.
A fine serves to punish the offender by requiring them to pay the money to the court. Aimed at deterring the offender to reoffend. However may not help with rehabilitation as it doesn't take offender out of society by way of protection
Community corrections order
Community corrections order is a supervised sentence served in the community, it includes special conditions such as treatment and unpaid community work for a specified number of hours.
Can be imposed up to 2 years in magistrates
2 years - the statutory maximum in county and Supreme Court. Conviction may or may not be recorded.
Opportunity for offenders to stop their criminal behaviour and undergo treatment or take part in educational, vocational or personal development programs.
People who have been convicted of a crime can be sentenced to be detained in jail for a period of time which means a loss to their freedom and liberty.
Effectiveness of criminal procedure
Fair and unbiased hearing
Access to the courts
Difference between criminal and civil law
-Lies in the consequences of the case brought before the courts. A criminal case is aimed at punishing the offender, whereas a civil case is aimed at achieving a civil remedy (usually compensation) for the people whose rights have been infringed
Age of Criminal Liability
-Under 10 cannot be charged
-Between 10-14 years mentally incapable of committing a crime, this can be overturned if it can be shown that the child understood that what they were doing was wrong
Police investigation process
Crime>Investigation>Suspect located>Questioning by police>Charge>Summons
rights of individuals during police questioning
-Ask police officer for their name, rank, identification number and station
-Remain silent - the right not to answer any questions during questions or at the trial, however must supply name and address
-Right to communicate with lawyers, family or friends before questioning
-Right to an interpreter
-Right to be released unconditionally or on bail or brought before a magistrate within a reasonable time
-To see any written statements
-Have a parent, guardian or adult present if under 17 years of age
-Refuse to accompany police officer to the police station unless being arrested
-Refuse to take part in an identification parade
-Refuse to participate in the reconstruction of a crime
-Refuse to have photographs taken
-Refuse to provide body samples, however a senior police officer can authorise non-intimate compulsory procedures or a court order is issued
-Refuse to supply voice prints
-Refuse to allow search of property unless police have a warrant or they reasonably expect to find drugs
-Question suspects for a reasonable time
-Demand name and address of a suspect or a person that can help with the investigation and license number if driving
-Question witnesses and victims
-Ask suspects to accompany them to the police station
-Take finger prints of persons over 15 years and with a children court order if between 10-15
-Take blood and body samples with consent or a court order
-Search a car if police have reasonable grounds that the vehicle contains a drug of dependance
-Search a person or package if have reasonable belief that the person is carrying a 'prescribed weapon'
-Arrest with or without a warrant
-Use reasonable force to make an arrest
-Suspend a drivers licence on the spot for refusing to take a preliminary breath test or if the drivers BAC excess 0.15
-Use listening devices or tap phones with court permission
-Hold an identification parade
-Engage in entrapment
-Reconstruct a crime if the suspect agrees to participate
Purpose of a criminal pre trial procedure
-Assist police in identifying evidence for the prosecution
-Protect the rights of the accused (innocent until proven guilty)
-Provide rights to the police to investigate
-Provide an opportunity for the accused to be released pending trial
-Determined whether the trial should proceed
-Determine if the accused wants to plead guilty or not guilty
Is a document commanding a person attend court on a given date. It is issued if it is believed that the accused will voluntarily attend court, does not pose a danger in the community or will not commit further offences
What happens at the conclusion of the committal proceedings?
-The magistrate will either discharge the defendant or comment him/her to trial
-All evidence is given at the comital is included in the depositions which are sent to the office of public prosecutions. The OPP can issue a nolle prosequi, which is a statement stating that they do not wish to proceed with the prosecution. If the accused goes to trial, a presentment is drawn up, which is a written statement containing the details of the charge/charges against the accused.
Purpose of criminal sanctions
CCO -how does it fulfil its purpose that can be imposed by the courts
-A CCO is a PUNISHMENT because it is a demand on the time of the offender. Conditions such as a curfew or alcohol condition can also assist to punish the offender. This can also serve as a SPECIFIC DETERRENCE in that having to do the work may discourage the offender from reoffending.
-A CCO can PROTECT society in that it occupies an offender at times when he or she may otherwise be encouraged to commit a crime. A CCO may also help to REHABILITATE an offender because programs are provided to assist the offender to move away from criminal behaviour.
Fine -how does it fulfil its purpose that can be imposed by the courts
A fine serves to PUNISH the offender by requiring them to pay money to court. It may act as a SPECIFIC DETERRENCE in that the offender may be deterred from reoffending. Members of society may also be deterred (GENERAL DETERRENCE) from offending because of the possibility of having to pay a fine.
A court could give an extremely high fine as a way of DENOUNCING the particular crime. This is showing disapproval of the crime committed. However, a fine is unlikely to help in the REHABILITATION of an offender. It also does not take the offender out of society by way of PROTECTION.
Imprisonment -how does it fulfil its purpose that can be imposed by the courts
-Imprisonment is seen as the sanction of last resort, as it results in a loss of liberty and freedom. It removes the offender from society as a PUNISHMENT for offending against society and as PROTECTION for society. Having a prison system leads to a safer society because serious criminals are kept out of society. Some would argue that more offenders should be kept in jail and that sentences should be harsher. Others argue that the most significant aim of criminal sanctions should be to rehabilitate offenders so that they are more likely to lead a useful and productive life within the boundaries accepted by society.
-Imprisonment may lead to REHABILITATION because of the various programs offered to prisoners, but it is more likely to lead to further crimes because of the influence of other prisoners and the difficulty of getting back into a normal life after having spent time in prison. Courts can also impose long sentences on offenders by way of showing disapproval of the acts committed (DENUNCIATION).
-Imprisonment is likely to act as a GENERAL DETERRENCE in that most people would be deterred from committing a crime by the possibility of going to prison. It may also act as a specific deterrence in that the offender will not want to go to prison again. However, because they mix with serious criminals while in prison, it may not be very effective as a SPECIFIC DETERRENCE.
S-Uphold the assumption of innocence until proven guilty (F)
-Allows the accused time to prepare their case (F)
-Bail contains conditions and therefore creates a balance between the rights of the accused and protection of society (F)
-Prevents accused being exposed to negative influences (F) (community values)
-Expensive to hold on remand
W-Reoffend/cause harm to society (F)
-Accused may obscene (T)
-Accused could obstruct justice by interfering with evidence and witnesses (F)
S-Protect society (F)
-Justice can be done -guaranteed the accused will appear at trial (T)
-Protects witnesses and evidence (F)
W-Doesnt uphold the assumption of innocent until proven guilty (F)
-Exposed to negative influences and are more likely to reoffend
-Unfair if offing not guilty (F)
-Cost ($350 per day)
-Affects accused ability to prepare for trial (F)
Committal proceedings -FAT
S-Saves time and resources of higher courts by filtering cases (T)
-Accused informed of the prosecutions case and this may result in a change of plead (T)
-Onus of proving the case is on the prosecution, if not established the accused is discharged, thus upholding the presumption of innocence (F)
-Some charges may be withdrawn (T)
W-Complicated strict rules of evidence and procedure
-Cross examine the witnesses = delays (T)
-Legal representation is required = Expensive
-Can add to delays in getting the case to trial (T)