Criminal and civil law

Criminal law

is a set of rules aimed at maintained social order and the prevention of harm within our community.

Offence against society

Consequences of breaching criminal law

If a person breaches or infringes the criminal law, he or she can be charged with a criminal offence

if the person is found guilty of the charge, they can face consequences under the criminal law in response to their criminal behavior

e.g. someone knows someone did a crime and didn’t report can be associated with the crime.

What is a crime?

crime is an act or omission that is against an existing law, that is harmful to society and punishable by law.

omission = not doing something under the law

Serious offence

• killing someone

• bank robbery

• sexual offence

• fraud

• impersonation

Minor offence

• speeding

• grafitti

• drink driving

• trespassing private property

• shop lifting

Summary offences

• less serious or ‘minor’ criminal offence, where the impact on society is small

• Heard on the magistrates court by a single magistrate, sanction, imposed for summary offences usually less serious

• Police are prosecutor and must prove the accused guilty

  e.g. speeding, property damage, shop lifting, trespassing

Indictable offence

• more serious criminal offences where the impact of society is significant and the matter is resolved by a judge and jury (if accused pleads not guilty ) in higher courts like county or supreme

• Sanctions imposed for indictable offences are usually much more severe than those imposed for summary offences

• the prosecution team who are the government lawyers must prove the accused guilty

e.g. killing, theft, sexual offence, fraud, impersonating

Key principles of criminal law

• elements of a crime

• strict liability

• standard of proof

• burden of proof

• age of criminal responsibility

Elements of a crime

Generally for a crime to be committed the following 2 elements of a crime need to exist at the same time:

• mens rea - Guilty mind

• Actus reus - Guilty act

Strict liability crime

What are strict liability?

crimes of strict liability are those that do not have a mental elements (mens rea)

This means that the prosecution does not have to prove that the accused had the intention to commit the crime, they only have to prove that the accused committed the wrongful act (or omission)

e.g. serving a child under 18 liquor, speeding

Standard of proof

The standard of proof is the strength of evidence needed to prove a legal case

Standard of Proof in a criminal case

In criminal law the prosecution must prove the case ‘beyond reasonable doubt’ Beyond reasonable doubt means that a very strong case must be presented to get a conviction. Absolute 100% no doubt.

Burden of proof

This is the responsibility to prove the allegations made in a case. In general the burden of proof is held by the person or party who iniates the action.

Age of criminal responsibility

Minimum age a person must be to be charged with committing a crime

Civil law

aims to protect the rights of individuals, groups and organisations, and provide opportunities for a wronged party to seek redress for a breach

The purpose of civil law

Is to return wronged person to the position they were in before the wronged occured. In civil law the plaintiff will be restored to their original position through a remedy Harm towards individual

Key principles of Civil law

• breach

• causation

• loss

• burden of proof

• standard of proof

Breach

when a company or person fails to abide by civil law, this is described as a breach of the law. This means that the individual or business has failed to meet their legal obligation

Standard of proof in civil case

is based on the balance of probabilities this means that it is more probable that not what the plaintiff is true

difference between criminal case

civil law is the majority while a criminal case must be 100%

Burden of proof

Responsibility to prove the allegations made in a case. In general the burden of proof is held by the person or party who initiates the action.

In civil trial the plaintiff carries burden of proof, means that they must prove the defendant was liable for their harm or injury

The plaintiff must gather evidence to support their claim, it is not the responsibility of the defendant to disprove liability

Causation

for party to be liable (legally responsible) for loss suffered, it must be proven on the balance of probabilities that they caused the loss

Loss

for most cause of action in civil law, a plaintiff (person who initiated the case) must have suffered loss in order to be granted a remedy by the courts such as physical, mental and financial

Presumption of innocence

When a person is charged with an offence, important that they are presumed to be innocent until proven guilty

The presumption of innocence ensures that all people who are charged with an offence receives a fair thearing,

specific rights in criminal proceedings

• to be informed promptly and in detail of nature and reason for the charge

• to have adequate time to prepare his or her defense and to communicate with lawyer of advisor

• to be tried without reasonable delay

• to be tried in person

• to be told if he or she does not have legal assistance, abt rights

• to have legal aid provided free of charge (if conditions meet)

• to examine witnesses against him or her

• to have free assistance of an interpreter

• not to be compelled to testify against himself or herself or confess guilt

• if convicted of a criminal offence has right for appeal

Role of police

In Australian law, the role of the police is to prevent, detect, and investigate crime, protect people and property from harm, maintain public order, and enforce laws by arresting and detaining individuals suspected of criminal activity

How police investigate crime

• evidence

• interviews

• blood samples

• dna

• objects from crime scene

Sanction

a sanction is the punishment handed down when a defendant has been found guilty of a crime.

Punishment - punish offender

Deterrence - discourage offender

Rehabilitation - help offerender to lead a law - abiding life

Denunciation - express behavior is wrong

protection - protect comm from offeder

Types of sanctions

Imprisonment - prison, non parole period 2 years min

Drug treatment order - offenders have treatment in community for addiction

Community corrections order - serve for the community

Fine - monies paid by offender to state

Elements of murder

the unlawful and intentional killing of another being by a person of sound mind, who has no legal reason to do so.

Elements of murder

accused’s action must contribute significantly and substantially to a person death

killing was unlawful

actions voluntary

acted with intent to kill or cause serious harm.