Studied by 3 peopleCrime
A crime is an act or omission that is against an existing law, is harmful to an individual or society as whole and punishable by law.
Presumption of innocence
An accused person is entitled to be treated as though they are not guilty of committing a criminal offence until it has been proven beyond reasonable doubt in a court of law.
How is the presumption of innocence protected?
The burden of proof
Standard of proof
Anyone who is arrested and charged can apply for bail (release of an accused person from custody on condition that they will attend court)
Right to legal representation
Police has to reasonably believe a person has comitted a crime before arresting them
3 PURPOSES OF CRIMINAL LAW
Protect society, punish offender, deter future offences
Act
Act is where you choose to do the crime, knowingly
For example,
Stealing from a shop -- breaking criminal law because you’re committing the offence of theft.
Omission
An omission is something you should do but you do not do.
For example,
Walking through a shop and your bag collects a scarf, you walk out perfectly innocent. However if you fail to return it then this omission is a crime
Accused
A person charged with a criminal offence
Prosecution
Legal advocates for the State who formulate and present the case against the accused
Summary offence
A less serious offence typically heard in the Magistrates' Court.
Indictable offence
A serious offence typically determined by a judge and jury in the County or Supreme Court.
Indictable offences heard summarily
Less serious indictable offences where the accused has the option of having their case heard as a summary offence in the Magistrates' Court or as an indictable offence in the County Court with trial by jury.
Actus reus
The physical element of a crime. That is, the act of committing a criminal offence.
Mens rea
The legal intent to commit a crime.
Strict liability crimes
Those crimes where intent does not need to be established, merely that the offender committed the offence.
For example, driving offences and serving alcohol to minors
Age of criminal responsibility
A person under the age of 10 cannot be charged with a crime. Those aged between 10-13 can be charged if the prosecution can prove that they knew their actions were wrong. People aged 14 or older are liable for their actions
Victimless crime
A criminal act where there is no actual victim.
Cyber-crime
A crime that involves a computer or a computer network
eg.
Cyberbullying
Virus/malware
Hate crimes
Prejudice motivated crimes that occur when an individual targets a certain social group or racial demographic
eg.
Racism
discrimination against minority groups
Organised crime
Crime that is typically organised by a powerful group that is on a large scale
eg.
drug trafficking
smuggling of migrants
human trafficking
money-laundering
Juvenile crime
Crime committed by young people, usually below 18
eg.
Graffiti
Vandalism, Shoplifting
Fare evasion
White collar crime
A crime that is usually non violent in nature and involves deceit or concealment to obtain or avoid losing money/property or to gain personal advantage
eg.
Corruption
health care fraud
Mortgage fraud
Money laundering
Crimes against the person
An offence that is against an individual which usually involves direct physical harm or force being applied.
eg.
Threats to Kill
Assault
Rape
Crimes against property
Crimes that usually involve private properties
eg.
Burglary
Larceny
Motor vehicle theft Arson
Vandalism
Summary offences
Summary offences are generally considered to be less serious and heard in the Magistrates’ court
eg.
Jaywalking
Road traffic offences
Property damage
Indictable offences
A serious offence typically determined by a judge and jury in the County or Supreme Court
Incurs severe penalties when the accused is found guilty.
They are deemed to be the most heinous of criminal acts
eg.
Rape
Armed robbery
Murder and treason
Indictable offences heard summarily
Less serious indictable offences where the accused has the option of having their case heard as a summary offence in the Magistrates' Court or as an indictable offence in the County Court with trial by jury.
eg.
Theft
Indecent assault
Property damage.
Participants in a crime
Intentionally assists, encourages or directs another person to commit a crime
Makes an agreement with another person to commit a crime together
Intentionally assists, encourages or directs another person to commit a crime knowing it is highly likely that another crime may be the result
Makes an agreement with another person to commit a crime together knowing it is highly likely that another crime may be the result
Self-defence
An individual may use a comparable level of force to protect themselves from the imminent attack of another.
Mental impairment
An individual may not have the cognitive ability to form the 'mens rae' -- that is, they cannot have the 'intent' under law to commit the crime.
Duress
Where pressure is placed on an individual to commit a crime or suffer the result of a threat made to them by another person
Sudden or extraordinary emergency
This occurs when a crime is committed while a person is in the process of escaping from/dealing with a situation of great urgency
Automatism
If an individual commits an offence without the intent to do so because they may be sleepwalking, having a reflex reaction or a seizure, they may be found not guilty.
Intoxication
Leniency may be shown to an individual who commits an offence while under the influence of alcohol if it can be established that they did not intend to become intoxicated (eg. drink was spiked)
Accident
Where a crime is committed without any intent to do so, but occurs as the result of a series of incidents, the individual may defend a charge by stating that they had no mens rae and the act was the result of an accident
Unfit to stand trial
If an individual can be proven to be insane, the court will deem them unfit to stand trial.
This is not an easy option, however, as they are then remanded in a mental health facility indefinitely.
Murder
The unlawful killing of another person with malice aforethought (intention to kill or cause serious injury)
Attempted Murder
The attempt to unlawfully kill another person with the intention to kill or cause serious injury
Manslaughter
The unintentional killing of a person due to reckless, dangerous acts or negligent behaviour
Culpable Driving
The act of causing the death of another person while driving a motor vehicle in a negligent or reckless manner or under the influence of drugs or alcohol
Rape
It is defined as the intentional sexual penetration of another person without their consent
Assault
Intentional or reckless use of force or the threat of force against another person without a lawful excuse
Kidnapping
The kidnapping is the unlawful confinement of a person against their will
Blackmail
An act of coercion using the threat of revealing or publicising information about an individual or company unless certain demands are met
Theft
The act of dishonestly taking property belonging to another person (without their consent) with the intention of permanently depriving that person of it
Robbery
The crime of taking or attempting to take anything of value by force, threat of force, or by use of fear.
Burglary
To break into and enter of a building with the intent to commit a crime, often theft
Fraud
The crime of wrongful or criminal deception intended to result in financial or personal gain.
Computer Crimes
Also known as cyber crime, it is an act directed at computers
Destruction of Property
The damage or destruction of real or tangible personal property, caused by negligence, willful destruction, or an act of nature
Nuisance
Nuisance deals with the interference of a person’s right to reasonable convenience and comfort in life
Private nuisance
Also called tort of nuisance.
Private nuisance happens when someone’s use or enjoyment of a piece of land is unlawfully interfered with.
Public nuisance
Also called general or common nuisance.
In common law, a public nuisance is an act that causes injury, loss, or damage to the general public rather than to any particular individual.
Elements required to establish liability (Nuisance)
The plaintiff has a property right in or over the land
In some way, the plaintiff must prove that they have some property right in or over the land. They must have an interest in the land, usually as the owner of the property or as a tenant.
There has been an interference with the plaintiff’s use and enjoyment of the land
In order to utilise this element to establish liability, the plaintiff must show that the defendant interfered with the plaintiff’s use and enjoyment of the land.
However, to determine whether an interference is reasonable, a court examines
The nature of the interference
The time and day in which the interference occurs
The nature of the neighbourhood in which the plaintiff lives
Whether the nuisance or interference is necessary for the community
Whether the interference is ongoing or intermittent
How long the nuisance of interference has been in existence (if it was in the area before the plaintiff moved in)
The plaintiff has suffered damage
Defences to nuisance
Duress
Mental impairment
Consent — where the defendant can argue that the plaintiff gave consent to the activity that has now caused damage, loss or injury
Reasonable use
A legal defence to a nuisance claim — to demonstrate that the act that caused it was authorised by legislation (example: making noise or polluting the air as a result of the construction of a railway)
Impact of nuisance on plaintiff
If a nuisance causes damage = property value may decrease.
Some types of nuisances, such as noise pollution or air pollution, can cause health problems for people living nearby.
Nuisances can be a significant inconvenience for plaintiffs. For example, if a neighbor's loud music prevents the plaintiff from sleeping or working, it can affect their quality of life.
A nuisance can cause emotional distress for the plaintiff, particularly if it is ongoing and persistent. This can include anxiety, stress, or depression.
In extreme cases, a nuisance can cause physical harm to the plaintiff. For example, if a neighbor's tree falls and damages the plaintiff's property, it could also cause injury to the plaintiff or their family.
Impact of nuisance on defendant
If a defendant is found to have caused a nuisance, they may be required to pay damages to the plaintiff. This can include the cost of repairing any damage caused by the nuisance, as well as compensation for any loss of income or property value.
Defending against a nuisance claim can be expensive, and the defendant may be required to pay for legal representation and court costs.
If the defendant is found to have caused a nuisance, their reputation may be damaged, particularly if the nuisance was intentional or malicious.
In some cases, a court may issue an injunction that prohibits the defendant from engaging in the activity that caused the nuisance. This can restrict the defendant's use of their property and limit their ability to carry out certain activities.
In extreme cases, a defendant may be required to surrender their property rights entirely, such as in cases where the nuisance is ongoing and cannot be remedied.
Damages
The most common civil remedy which involves monetary compensation being paid by the defendant to the plaintiff.
Class action
A legal proceeding where a group of people who have a similar claim against a common defendant band together and take action as a collective. This may also be referred to as a 'representative proceeding'.
Defamation
Defamation is the action of damaging the reputation of someone
Laws relating to defamation ensure that a person's reputation is not harmed because of false statements that are made about a person
Elements required to establish liability (Defamation)
The statement is defamatory
The statement is untrue
The statement refers to the plaintiff
The statement has been published by the defendant (eg. communicated to more people than only the plaintiff)
Trespass
Trespass is an area of civil tort law that involves the rights of an individual being breached due to unauthorised access to either their land, property or person by another.
Trespass to land
Trespass to land occurs when an individual intentionally (or negligently) enters the land of another without lawful excuse.
Under common law, trespass to the airspace above the land and beneath it also constitutes trespass to land.
Trespassing to property
Trespass to property occurs when an individual interferes with goods that belong to another person. This could be a computer, vehicle, pet, etc.
The plaintiff does not have to produce a title to demonstrate ownership … just that they had legal possession of the property.
Trespass to the person
Trespass to the person occurs when an individual intentionally makes contact with another person without their consent.
There are three basic types of trespass to the person:
Assault
Battery
False imprisonment
Defence to trespass
Permission was given
The intrusion was lawful
Any trespass involved was accidental
Self-defence (specific to trespass to the person)
Lawful possession (trespass to property)
Inevitable accident (trespass to property)
Repossession (trespass to property)
Negligence
Negligence is a type of tort that involves a breach of a duty of care, causing loss or harm to a person they owe a duty of care to.
A person is obliged to take care when it is reasonably foreseeable that other people could be harmed by their actions or omissions
Elements required to establish negligence
(1) that a duty existed that was breached
(2) that the breach caused an injury
(3) that an injury, in fact, resulted.
Defences to negligence
Contributory negligence
Formal defence to negligence that claims the plaintiff contributed to the harm caused by the defendant
If proved, this reduces the damages the defendant has to pay
Assumption of risk
Defendant claims that the plaintiff accepted the dangers of a known and understood the risk either expressly or by implication
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