legal

In Victoria, the age of criminal responsibility

is now 12.

The principle of doli incapax applies in Victoria for

The presumption that between the ages 12 - 14 a child cannot form the criminal intent but this is a rebuttable presumption - it can be reputed if the prosecution can use evidence to show that the child knew their actions were morally wrong.

The pressure on Australia to increase the age of criminal responsibility has been due to

○ Overrepresentation of First Nations people in prison

○ Many young people come from disadvantaged backgrounds

○ Young people have difficulty engaging with the criminal justice system

social cohesion parts

the role of laws

the role of individuals

the role of the legal system

rule of law

The 'rule of law' is the principle that all people are equal before the law and must obey the law.

Setting Standards

Settling Disputes

Protecting Rights and Safety

role of individuals

It is the responsibility of individuals to ensure that they are aware of the laws and abide by them.

Obeying the law

Participating in the system

Advocating for change

the role of legal system

It aims to deal fairly and justify with individuals who have broken the law or breached someone else’s rights

Law

Legal rules made by a legal authority that are enforceable by the police and other agencies

social cohesion

● A term used to describe the willingness of members of society to cooperate

with each other in order to survive and prosper.

● The capacity of a society to ensure the wellbeing of its members, minimising disparities and avoiding marginalising.

Five key areas of social cohesion

1. Sense of belonging

2. Sense of worth

3. Social justice and equity

4. Political participation

5. Acceptance or rejection

Statute Law

Definition - A law that is made by parliament

Statutory law is created by parliament.

Common Law

Definition - Law made by judges through decisions made in cases.

● Interpreting the meaning of the words in a statute (Act of Parliament) when applying the statute to a case the court is hearing.

● Deciding on a new issue that is brought to them where there is no law in the area (a ‘novel case’), or where a previous principle of law requires expansion to apply to a new situation (creating precedent).

Court Hierarchy

Reasons for a court hierarchy

● Specialisation and expertise

● Allows for appeals

● Administrative convenience

● Doctrine of precedent

Doctrine of Precedent

The process of law-making through the courts ensures that similar cases with similar facts are treated the same, to achieve consistency and fairness

This is because lower courts in the same court hierarchy are bound by the decisions of the higher courts (when the material facts of the case are similar). This sets precedent.

Binding Precedent

A binding precedent is a precedent that has been established in the superior courts (Supreme Court - Trial Division or higher in Victoria) and must be followed by lower courts in the same hierarchy when hearing a case with similar material facts.

Ratio decidendi

The ratio decidendi is the binding part of a court judgement - it means the reason for the decision

Stare decisis

This means ‘to stand by what has been decided’.It is another way of describing the process of lower courts following the reasons of the decisions of the higher courts.

Persuasive Precedent

Persuasive precedents are precedents that are not binding on a court but may still be considered by a judge and used to influence their decision

fairness

fairness means that ‘all people can participate in the justice system, and its processes should be impartial and open’

• Impartial processes

• open processes

• participation

Equality

Equality means that ‘all people engaging with the justice system and its processes should be treated in the same way. If the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow everyone to engage with the justice system without disparity or disadvantage’.

• same treatment

• different treatment

Access

Access means that ‘all people should be able to engage with the justice system and its processes on an informed basis’.

• engagement

• informed basis

Actus reus

the ‘guilty act’. This is the physical element of a crime. The prosecution must prove that the person physically did the wrongful action.

Mens rea

the ‘guilty mind’. This is the mental element of a crime. The prosecution must prove that the person knowingly or intentionally committed the wrongful action (or inaction). The mens rea refers to the state of mind ofthe accused at the time of offending.

Burden of proof

The burden of proof is the obligation (responsibility) of a party to prove a case.

In a criminal case - the prosecution.

The burden of proof rests with the person/party who is bringing the case.

Standard of proof

● The standard of proof is the level of certainty or strength that is required to

prove the case.

● In criminal law - beyond reasonable doubt.

Roles - Prosecution

Their role is to present the entire case to the jury (or magistrate) and let them

decide on guilt.

● The prosecution has the following roles

○ Disclose information to the accused

○ Participate in the trial/hearing

○ Make submissions about sentencing

Role of the accused

The accused’s role is different to the prosecutor - accused does not have the

burden of proof. Can choose to remain silent during the entire case.

● Roles of the accused

○ Participate in the trial/hearing

○ Make submissions about sentencing

Presumption of innocence

If a person is accused of committing a crime, they are considered innocent until proven guilty.

• rule of law

arson elements

Element 1 - The accused damaged or destroyed the property by fire

Element 2 - The property belongs to another person

Element 3 - The accused purposely damaged or destroyed the property by fire, or knew or believed that the damage or destruction by fire was the likely result of their actions

Element 4 - The accused had no lawful excuse for damaging or destroying the property

Penalty for Arson

Maximum penalty is 15 years imprisonment

Elements of Intentionally or recklessly causing a bushfire

Element 1 – The accused caused a fire

Element 2 - The accused caused the fire intentionally or recklessly

Element 3 - The accused was reckless as to the spread of the fire to vegetation on property belonging to another person

What is a sanction?

A sanction is a penalty that is imposed by a court on a person found guilty of a criminal offence.

Purposes of Sanctions

Deterrence (There are two types of deterrence)

General deterrence

Specific deterrence

Rehabilitation

Denunciation

Protection

Punishment

Deterrence

aims to discourage the offender, and others, in the community from

committing the same or similar offences.

● General deterrence is designed to discourage others in the community from

committing similar offences.

● Specific deterrence is designed to discourage the offender from committing further offences.

Rehabilitation

Rehabilitation is designed to reform an offender, in order to prevent them from committing offences in the future.

● It is in society’s interests to help offenders change their ways, otherwise crime

rates and prison costs will escalate (increase).

● Offender’s can be helped by being provided with education, training, assistance/support (such as counselling) to help offenders become law-abiding citizens.

Denunciation

Denunciation is designed to demonstrate the community’s disapproval of the offender’s actions.

● It seeks to convey (tell/show) the message that this type of criminal behaviour will not be tolerated by the courts (and the community).

Protection

Protection is designed to safeguard the community from an offender by preventing them from committing a further offence.

● An offender might be required to serve a term of imprisonment to remove them from society so that they cannot commit anymore harmful acts.

Punishment

Punishment is designed to penalise the offender.

• criminal behaviour will not be tolerated.

• feel a sense of justice

• social cohesion.

• ● Deprivation of liberty (taking away a person’s freedom) is the ultimate punishment.

Imprisonment

Imprisonment is a sanction that removes the

offender from society for a stated period of time and

places them in prison (jail).

Parole

Parole is the supervised and conditional release of a prisoner after the minimum period of imprisonment has been served.

civil law

● Civil law is an area of law that defines the rights and responsibilities of individuals, groups, and organisations in society and regulates private disputes.

civil law purpose

regulate the conduct between parties to a dispute, and to remedy a wrong that has occurred.

plaintiff civil law

makes a legal claim against another party (the defendant)

defendant

is alleged to have breached a civil law and is having a civil action brought against them by the plaintiff.

civil law Burden of proof

the burden of proof rests with the plaintiff.

Standard of proof

plaintiff must prove the case on the balance of probabilities