Legal Studies | Unit 1 AOS2

Crime

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

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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.

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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.

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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

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eg.

* Cyberbullying
* Virus/malware

Hate crimes

Prejudice motivated crimes that occur when an individual targets a certain social group or racial demographic

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eg.

* Racism
* discrimination against minority groups

Organised crime

Crime that is typically organised by a powerful group that is on a large scale

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eg.

* drug trafficking
* smuggling of migrants
* human trafficking
* money-laundering

Juvenile crime

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Crime committed by young people, usually below 18

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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

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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.

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eg.

* Threats to Kill
* Assault
* Rape

Crimes against property

Crimes that usually involve private properties

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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

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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

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Incurs severe penalties when the accused is found guilty.  

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They are deemed to be the most heinous of criminal acts

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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.

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eg.

* Theft
* Indecent assault
* Property damage.

Participants in a crime

Intentionally assists, encourages or directs another person to commit a crime

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Makes an agreement with another person to commit a crime together

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Intentionally ==assists==, ==encourages== or ==directs== another person to commit a crime knowing it is highly likely that another crime may be the result

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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.

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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

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**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.

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**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**.

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* **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.

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However, to determine whether an interference is __**reasonable**__, a court examines

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* 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)

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* **The plaintiff has suffered damage**

Defences to nuisance

* Duress 
* Mental impairment 

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* Consent — where the defendant can argue that the plaintiff gave consent to the activity that has now caused damage, loss or injury

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* Reasonable use

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* 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

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* 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

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* 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.

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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.

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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. 

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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. 

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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

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If proved, this reduces the damages the defendant has to pay 

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Assumption of risk

Defendant claims that the plaintiff accepted the dangers of a known and understood the risk either expressly or by implication