Basic notes

Stuff

Purposes of criminal law

* Protect individuals, property, and society
* Maintain public order and security
* Improve society generally
* Promote justice

Protect individuals

By establishing laws to protect things we own

* E.g. land and personal property
* People are not free to deceive and steal what belongs to others or damage property/environment

Protect property

By establishing laws that allows the physical, social, and financial aspects of society to function

* E.g. you cannot manufacture, distribute and use certain types of drugs, to ensure that society is not adversely affected by illegal substances

Maintain public order and security

By establishing laws that set standards and makes clear what behaviour will not be tolerated by the community and the legal system

* It makes social interactions predictable and maintains public order, because everyone can predict wat to expect from others and the legal system

Protect justice and the rule of law

By establishing laws that takes enforcement of rights out of the hands of individuals

* Only the state can punish people for criminal offences

Protect rights and culture

As the law protects human rights and individual freedom

* E.g. to engage in cultural or religious activities without being harassed and mistreated

Improve society generally

By deterring people from committing crimes (out of fear of being punished) and by offering the chance of rehabilitation while serving their sentence

Achieving its purpose

* Establish the law - statutes and court decisions
* statute - where most criminal laws are found
* Enforce the law - Victoria Police and other bodies
* Decide who is guilty - courts
* Impose sanctions on offenders - judges
* statute - where penalties are found

Crime

An act or omission:

* Against the law
* Harmful to individuals or society as a whole
* Punishable

Against the law

For a crime to have been committed, the act or omission must be against an existing law

Harmful to an individual or society

* When a crime is committed there is usually a victim - someone who is harmed as a result of the crime
* \`This harm may be physical, mental, or financial


* A crime can harm society as whole if it goes against what most people believe is acceptable behaviour, and it can affect others in society

Punishable

* Committing a crime is different from breaking a non-legal rule because a person who has committed a crime can be punished through the courts as a consequence
* Victoria Police, Australia Federal Police, Worksafe Victoria and the Environmental Police enforce the law Prosecutions
* Victoria Police refers serious offences to the Office of Public (OPP)
* This includes:
* DPP (Director of Public Prosecutions)
* Crown Prosecutors

Summary offences

* Minor offences
* Heard in Magistrates Court
* Traffic offences
* Property damage
* Public druckeness

Indictable offences

* Serious offences
* Hear in Supreme/County Court
* Murder
* Rape
* Drug trafficking

Presumption of innocence

* A person is presumed to be innocent until they are proven to be guilty
* This protects individuals from being arrested and treated as if they are guilty and is consistent with the rules of natural justice

Everyone is entitled to be treated as innocent

This is why a person is referred to as the ‘accused’ or ‘alleged’ to have committed a crime - it has not yet been proved

Parties

* The prosecution has to use evidence to show the accused is guilty
* The accused can stay silent - forcing the prosecution to present enough evidence to prove that the accused committed a crime
* This is called ‘putting the prosecution to proof’

Protecting the presumption of innocence

* Burden of proof
* Standard of proof

Burden of proof

* The party that has the responsibility to prove the facts of a case
* The prosecution is responsible for presenting valid, reliable, and sufficient evidence in court to prove the accused is guilty
* Burden falls on prosecution to prove accused is guilty
* Helps to uphold the presumption of innocence, as the accused does not have to prove their innocence

Standard of proof

* The standard against which cases are decided
* The strength of evidence needed to prove a case
* There must be no reasonable doubt in a Magistrate’s/ the jury’s minds that the offender did it
* If the doubt is reasonable, then the prosecution did not provide enough evidence to prove guilt
* The evidence presented by the prosecution must prove that the accused is guilty beyond reasonable doubt
* The high standard of proof upholds the accused’s right to a fair trial, in which the accused is only found guilty where no other logical conclusion can be reached, based on the evidence presented.

Bail

* The release of an accused person from custody on condition that they will attend a court hearing to answer the charges
* If you have been arrested and charged, you have the right to apply for bail
* You should be granted bail unless there are circumstances which means it won’t be granted
* e.g. endangering the safety or welfare of the public

Legal representation

* You have the right to a lawyer in court
* What if you cannot afford a lawyer?
* If it is a less serious offence, you’re on your own
* If it is a serious offence, you may get Legal Aid (the government will pay for a lawyer/make it cheaper)
* The court can stay the proceedings (order that they are delayed) until the accused obtains a legal representation

Right to silence

* An accused has the right to be silent
* They do not have to say anything
* It is not A’s job to help the prosecution convict them
* Silence is not to be taken as an admission of guilt
* Silence ≠ guilt

Appeal

* The accused has the right to appeal a conviction
* The accused has the right to have a decision reviewed, as it may have been decided incorrectly or the sentence was too harsh

Key concepts of criminal law

The key concepts in criminal law help to ensure fair outcomes in criminal cases. These include:

* Elements of a crime
* Strict liability
* The age of criminal responsibility
* The burden and standard of proof

Elements of a crime

* Actus reus
* Mens rea

Actus reus

* This is the physical element of the crime, or the ‘guilty act’
* It refers to the physical acts that must have occurred to constitute a particular crime
* e.g. what physical act must have occurred in the crime of theft?

Mens rea

* This is the mental element of the crime, or the ‘guilty mind’
* This refers to the state of mind of the person who commits a wrongful act knowingly, intentionally, recklessly, or negligently or maliciously
* e.g. what state of mind must have occurred in the crime of theft?

Identifying the specific elements of a crime

* Most crimes and their elements are defined in acts of parliament (legislation), though some crimes are still defined in common law, such as murder
* In a criminal case, the elements of the crime that a person is accused of committing, must be proven, beyond reasonable doubt

Strict liability offences

* In some offences, there is no mental element that needs to be proven in order to convict the accused
* For such crimes, the prosecution need only prove that the guilty act occurred
* e.g drinking under the influence of alcohol or drugs

The age of criminal responsibility

The age at which a person will be held criminally liable, or responsible for committing a criminal offence

Under 10

Under the age of criminal responsibility, can not be convicted

Between 10 and 13

* Will only be held responsible if the prosecution can prove that the child knew the difference between right and wrong and that they were committing a crime
* Otherwise they are declared doli incapax.

14 and over

Can be charged with a crime

Reversing the burden of proof

* In some offences, parliament has reversed the burden of proof, requiring the accused to prove their claims
* These include some terrorism offences, drug offences, and some child sex offences

Summary offences

* Minor criminal offences
* Generally heard in Magistrate’s Court
* Summarily
* Without a jury
* Heard by a Magistrate
* Most are contained in the Summary Offences Act 1966 (Vic)
* Most committed crimes in Victoria

Summary offences examples

* Drink driving
* Disorderly conduct
* Minor assaults

Indictable offences

* Serious criminal offences
* Heard in the County or Supreme court
* Indictable
* Choice of a jury (if A pleads not guilty)
* Heard by a judge
* Contained in the Crimes Act (Vic)

Indictable offences examples

* Murder
* Manslaughter
* Rape

Indictable offences heard summarily

* Indictable offence + heard in court like a summary offence


* Only applies to less serious indictable offences
* Murder cannot be heard summarily
* Special rules
* Court thinks it is appropriate
* Accused agrees
* Contained in the Criminal Procedure Act (Vic)
* Penalty less than 10 years in prison

Why would an accused choose to have their case heard summarily?

* Cheaper
* Quicker
* Lower punishment (sometimes)
* Magistrate cannot impose a prison term of more than:
* 1 offence = 2 years
* Multiple offences = 5 years

Principal offender

* Person who directly commits an offence
* Person who performed actus reus (act or omission) and has mens rea

Being ‘involved’ in a crime

* Classified as also committing the crime
* Responsible to the same degree as principal offender
* A person is ‘involved’ in a crime when:
* They communicate encouragement for the offending behaviour
* If they withdraw support, must make it clear
* Usually have to be at the scene of the crime
* Can still apply if participant is not present
* Guilty verdict
* Even if other participants or principal offender have not been prosecuted/convicted

Accessory to a crime

* A person who knowingly assists another person to evade arrest, prosecution, conviction, or punishments
* Must have committed a serious indictable offence (prison>5 years)
* Guilty verdict, even if principal have not been found guilty