Legal studies Unit 1&2 AOS 3

What is the presumption of innocence?

The presumption of innocence is the right of a person to be considered innocent until proven guilty.

What are the 4 elements of murder?

1. the killing was unlawful (prosecution must prove accused had no legal justification for the act).

2. the accused’s acts were voluntary.

3. the accused committed acts that caused the victim’s death (prosecution must also prove causation, meaning it must be proven there was a direct and unbroken link between the accused's actions and the victim's death).

4. the accused acted with intent to kill or cause serious harm (prosecution must prove accused acted with a mens rea).

What is the burden of proof?

The burden of proof is the responsiblilty of the party that makes the allegation or the claim to provide proofs and evidence to support their claim.

What is the standard of proof?

The standard of proof is the degree or extent to which a case must be proven in court. In a criminal case, the standard of proof is beyond reasonable doubt for the prosecution.

What are strict liability offences?

Strict liability offences are offences that lack a mens rea, meaning prosecution doesn’t need to prove intention for these crimes, only an actus reus. E.g failing to display ‘P’ plates.

the purpose of strict liability offences is to uphold public safety

What are summary offences?

Summary offences are minor/less severe offences (traffic offences, damage to property).

The are dealt in the magistrates’ court.

they are called a HEARING, not a trial.

There is no jury present.

found in the summary offences act (1968, Vic)

The max sanction is 2 years for each individual summary offence.

What are indictable offences?

Indictable offences are severe offences like murder, kidnapping, manslaughter. The accused goes to trial in county or supreme court. If the accused pleads not guilty, the jury determines the guilt. Sanctions can go up to life in prison (25 years). found in the crimes act (1958, vic)

What is a principle offender?

A principle offender is a person who commits an offence and has carried out the actus reus. Any person who is involved in a crime is also considered to be a principle offender. This includes anyone who intentionally assists, encourages or directs another person to commit a crime.

What is an accessory?

An accessory is a person who, without lawful excuse, assists a principle offender AFTER a crime has been committed. This includes helping the principle offender avoid being arrested, prosecuted, convicted or punished. E.g accessory cleaning up evidence in a murder scene.

what are the elements of a crime?

For a crime to have been committed, the two elements of crime need to exist at the same time:

actus reus: the physical element of a crime. Prosecution must prove the person physically did the wrongul action.

mens rea: the mental element of the crime. prosecution must prove that the person knowingly committed the wrongful act.

What are the defences to murder?

1. self defence: in murder cases, the accused must believe their actions were necessary to protect themselves or others from death or serious injury.

2. duress: is the threat or or use of force or compulsion to coerce another person to carry out a particular act. The accused must reasonable believe that death or serious injury would occur to themself or others if they didn’t commit the offence and that the act was the only reasonable way to avoid it from happening.

What are the murder impacts?

1st impact: is the immediate impact on both the victim and the perpetrator.

2nd impact: is that on the immediate family and friends.

3rd impact: is the impact on the community

What are delegated bodies?

Victorian delegated bodies are given authority by the Victorian parliament to make and enforce criminal laws.

delegated body - vicroads

Vicroads has authority to prosecute certain road and traffic offences. it can also issue infringement notices for breaches of road rules, manage demerit points, and can suspend or cancel driver licenses. Vicroads insures compliance with certain road and traffic rules.

what are police powers?

Police have the power to investigate and prosecute people accused of a crime through Crimes Act 1958 (Vic)

What powers to police have?

Police have the power to arrest.

They have the power to obtain name and address: if someone HAS committed, or IS ABOUT TO commit an offence or someone has assisted a indictable offence investigation

They have the power to search and enter premise: if police believe a person HAS commit a serious indictable offence, or if someone is escaping from legal custody or if someone IS committing a serious indictable offence.

They have the power to do a questioning: police have the power to question people within a reasonable time frame.

What powers do courts have?

Courts can grant or withhold bail: the court has the ability to decide whether the accused should be held in custody or granted bail based on their threat to the community.

Courts can determine and impose appropriate sanctions: a judge will impose a sanction on an offender who has been found guilty by the jury.

What are the rights of individuals?

the right to remain silent: they only have to answer their name and address

make 2 phone calls

speak to a lawyer: to avoid incriminating oneself.

what is the definition of jurisdiction?

jurisdiction refers to the right or power of a court to apply the law and hear cases.

What is an original jurisdiction?

When a court is hearing a case for the first time, it is operating in its original jurisdiction.

what is an appellate jurisdiction?

When a hearing is an appeal, it it operating in its appellate jurisdiction.

What is the role of the jury in a criminal trial?

1. listen to all the evidence

2. stay concentrated during the trial

3. piece the evidence together.

   In a criminal case, the finding of guilt by a jury must be made beyond reasonable doubt. A criminal jury must try and reach a unanimous verdict. If a jury member isnt sure if the accused is guilty, they must state not guilty.

What are the purposes of sanctions?

Rehabilitation: rehabilitation is designed to address the underlying causes of offending and treat the offender based on those issues. This benefits both the offender and community. Offender must show remorse and active steps to becoming a better person.

Punishment: designed to penalise the offender and show society and the victim that criminal behaviour will not be tolerated.

Deterrence: designed to discourage the offender and others in the community from committing similar offences.

• general deterrence: discouraged the general community from committing the same crime. Especially violent acts of crime.

• specific deterrence: when the court seeks to discourage a particular offender from engaging in criminal activity in the future. Especially for repeat offenders. (if offender is remorseful, specific deterrence may not be appropriate).

Denunciation: designed to demonstrate the community’s disapproval of the offenders actions. Shows the community that the court and society disapproves of and condemns the offender’s conduct.

Protection: designed to safeguard the community from an offender by preventing them from committing further offence. Sometimes its necessary to remove an offender from the community (put in prison) to achieve this because they are harmful. No remorse from offender.

court hierarchy

The court hierarchy refers to the superiority of victorian courts in order of their seriousness, severity of crimes and complexity. It places the magistrates court at the bottom of the hierarchy as it deals with less serious and less severe issues such as summary offences, whereas the most serious and complex issues such as murder are heard in the supreme court.

what are the rights of an accused

Right to silence. This right states that an accused has the right to decline answering questions during all stages of criminal proceedings such as arrest, police interview and court proceedings. This allows the accused to maintain silence without their silence being interpreted or inferred to be an admission of guilt. 

what are the roles of a court?

1. resolving disputes and enforcing law peacefully

2. to interpret and apply statute law

precedents

A precedent is when a court decides a case that is the first of its kind - and in doing so, establishes or creates a legal principle.

binding precedent (must be followed)

• the material facts of the precedent are similar to the material facts of the new case

• must be followed by courts that are lower in the same court hierarchy

persuasive precedent (doesnt have to be followed)

• if a court in another state has set the precedent

• higher courts dont have to follow precedents set by lower courts

Mitigating and aggravating factors

mitigating factors reduce the sentence and aggravating increase the sentence e.g gravity of offence, vulnerability of victim, planned or premeditated.