legal studies AOS 2 - unit 1

crime definition

an act or omission that is prohibited by law, harmful to an individual or to society and punishable by the state.

protection of society

Aims to protect the community as a whole

crime definition

an act or omission that is prohibited by law, harmful to an individual or to society and punishable by the state.

protection of society

Aims to protect the community as a whole

protection of property

Aims to protect public and privately owned property

protects individuals

creates laws to protect individuals so they can remain safe

protects justice and the rule of law

provides processes ro deal with offenders

set minimum standards of behaviour

outlines what is right and wrong. it outlines the behaviours that are unacceptable, the crimes and also the consequences for committing those crimes, the sanctions

the presumption of innocence

is the right for all accused persons to be considered innocent until it is proven, beyond reasonable doubt that they are guilty.

Victorian charter of human rights and responsibilities act 2006 states

A person charged with a criminal offence has the righg to be presumed innocent until proven guilty according to law

The burden of proof

is on the prosecution

the standard of proof

upholds the presumption of innocence by requiring convincing and credible evidence to prove guilt beyond reasonable doubt ensuring the accused is not wrongfully convicted based on weak and insufficent evidence.

the right to silence

prevents self incrimination

the right to apply for bail

the ability for an accused to be released from custody while awaiting trial ensures that they are not unjustly detained

the right to a fair trial

A fair trial is a trial where an accused is able to participate and there are impartial and open process.

What are the elements of crime

• mens rea (guilty mind)

• actus reus (guilty act)

mens rea

The mental element of a crime. For a person to be found guilty of a crime the prosecution must also prove that the person knowingly or intentionally committed the wrongful act or inaction

Actus reus

The physical element of a crime. For a person to be found guilty of a crime the prosecution must prove the person physically did a wrongful action (or inaction)

What is the equation for a crime

Actus reus + mens rea = crime

strict liability

crimes of strict liability are offences that do not have a mental element

the age of criminal responsibility

The age of criminal responsibility is the minimum age a person must be to be charged with committing a crime (12 years in vic)

doli incapax

Incapable of evil. This refers to the common law principle that a person aged under 14 years of age is presumes to be incapable of forming mens rea (guilty mind)

standard of proof

the degree to which the party with the burdenof proof must prove the accusations

criminal case

beyond reasonable doubt, if therre is any reasonable doubt the accused must be found not guilty due to the presumption of innocence

burden of proof

refers to which party has to prove their case in court (usually the party that brings the case to court)

summary offences

• minor offences,

• heard in the magistrates court

• determined at a hearing

• examples: traffic offences, graffiti

indictable offences

• serious criminal offences

• heard in the county or supreme court

• right to trial by jury

• examples: murder, manslaughter

indictable offences heard summarily

These offences are a subset of indictable offences that mayb be heard like summary offences as they heard in the magistrates courts, by a magistrate instead of a judge and jury in a higher court

an indictable offence may be triable summarily if:

• the offence is punishable by a term not exceeding 10 years

• the court determines it appropriate

• the accussed agrees

principle offender

The person who actually commits the crime (carries out the actus reus)

A principle offender

• intentionally assists encourgaes or directs another person to commit a crime

• makes an agreement with another person to commit a crime together

• initally assists, encourages or directs another person to commit a crime knowing it is probable that another crime may be the result

• makes an agreement with another person to commit a crime together knowing it is probable that another crime may be the result

Accessory

• a person who knows or believes the principal offender is guilty of a serious indictable offence and without lawful excuse, assists a principle offender following the commission of a crime. that is if they do something to try to stop the offender from being arrested, prosecuted, convicted or punished for the crime

homicide

homicide offences are those crimes that have resulted in the death of another person

murder

murder is the unlawful and intentional killing of a human being by a person who acted voluntarily and without any lawful jurisdiction

Elements of murder

1) the killing was unlawful

2) the accused acts were voluntary

3) the accused commited the acts that caused the victims death

4) the accused acted with the intent to kill or cause serious harm

element 1 the killing was unlawful

The prosecution must prove the accused did not have a lawful reason for causing the victims death. There must be no lawful jurisdiction.

Examples of lawful killings:

• soldiers killing within the rules of battle

• police acting in the course of their duties

• a person acting in self-defence

element 2 the accused acts were voluntary

the conduct of the accused must have been due to a conscious and voluntary act

can not be found guilty if:

• the accused was unconscious

• the physical act was involuntary

element 3 the accused committed the acts that caused the victims death

it must be proven by the prosecution that the accused acts were a substantial or significant cause of the victims death. There must be a direct and casual link between the accused actions and the death of the victim

element 4 the accused acted with the intent to kill or cause serious harm

the prosecution must prove that the accused acted with a guilty mind that is mens rea existed at the time of the killing. Another name for a guilty mind is malice afterthought

intention

the prosecution must prove the accused intended to cause death or really serious injury

reckless indifference

an accused can have a guilty mind if they were reckless and indifferent that is they knew that it was probable that death or really serious injury would result from their actions and they were indifferent to the fact

defences to murder

an accused can defend a charge of murder on the basis that one or more elements of murder have not been satisfied. If the prosecution fails to prove each of the 4 elements of murder beyond reasonable doubt, the accused will not be found guilty of murder.

self defence

the accused must:

• believe their actions were necessary to protect themeselves or another person from death or significant serious injury

the burden of proof then falls on the prosecution

mental impairment

mental impairment is a condition of the mind that impacts on a persons ability to know the nature and quality of their conduct, or that the conduct was wrong.

duress

duress is a strong mental pressure on someone to overcome their independant will and force them to do something

have to have reasonable belief that:

• a threat of harm existed

• their conduct was a reasonable response to the threat.

reasonable belief

a reasonable belief is an honestly held opinion about the way things are which would seem to another ordinary person with similar charateristics and in similar circumstances to be sensible and correct.

sudden or extraordinary emergency

• there was a sudden and extraodinary emergency

• their actions were the only reasonable way of dealing with the situation

• their actions were a reasonable response to the situation

Automatism

Automatism is a state in which a person has a total loss of control over their bodily movements so they cannot form an intention to commit a crime (mens rea)

intoxication

intoxication can be used as a defence if at the time of teh offence the accused acted involuntarily or without intent due to being in an intoxicated state as a result of consuming alcohol, taking furgs or ingesting some other substance,

• it must not be self induced

Accident

the accused can claim their actions were accidental and they acted without the intention to commit the crime

sentencing

30 years if the court is satisfied that the prosecution has proven beyond reasonable doubt

what is culpable driving

culpable driving is 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.

• its an indictable offence

• heard in the county court

Elements of culpable driving

• the accused was driving a motor vehicle

• the accused driving was culpable

• the culpable driving caused the death of another person

element 1 the accused was the driver of the motor vehicle

the prosecution must prove the accused had substantial control over the movement and direction of the motor vehicle, whether or not the accused was driving may be an issue if, for example the vehicle was pushed or towed by someone else.

element 2 the accused driving was culpable

culpability refers to the responsibility for a fault or wrongdoing action in relation to driving it means that the accused must have been driving the motor vehicle in one of the following ways,

element 3 the accused culpable driving was caused the death of another person

it must be proven by the prosecution that the accused culpable driving contributed significantly to the death.

duress

is a strong mental pressure on someone to overcome their independent will and force them to do something