VCE Legal Studies Unit 1 - AOS 2 - Criminal Law

Criminal Law

Criminal law is the body of law concerned with criminal behaviour which is against the law and harmful to society, as well as breaches of the law that affect society as a whole, thus requiring the imposition of sanctions.

E.g. Murder, Manslaughter, Rape, Theft

Two Elements to a Crime:

- Mens Rea

- Actus Reus

Mens Rea: Guilty mind, intention to commit crime

Actus Reus: Guilty act, actually committing the crime

Parties in a Criminal Case

Defendant/Accused: Person accused of the crime.

v.

Prosecution: Legal representatives acting on behalf of the state, must provide evidence to prove that the defendant committed the crime.

Age of Reason

Children under the age of 10 cannot be held responsible or charged with committing a crime as, it is believed, they cannot form the intention to commit the crime. It is also believed that children between 10 and 14 do not know what they are doing is wrong and don't understand the consequences of their actions.

Children over 14 can be charged with committing an offence.

Standard of Proof (Criminal Law)

"Beyond reasonable doubt"

If there is any reasonable doubt as to whether or not the defendant is guilty, the court must give the defendant the benefit of this doubt and find the defendant not guilty.

Burden of Proof (Criminal Law)

Prosecution

Burden of proof lies with the prosecution as they have to prove case that accused committed the offence.

Verdicts of Criminal Law

Guilty or Not Guilty

Aims of Criminal Law

Reasons/Purposes of Sentencing

- To punish wrongdoers for the crimes they committed

- To establish conditions for the rehabilitation of the defendent

- To protect the community from the defendent

- To deter both the defendant and others from committing the same or similar crimes

- Condemnation of the defendants conduct

Civil Law

Civil law on the other hand is a body of law that is concerned with the infringement of a person's rights and deals with disputes between individual/groups, which results in harm/loss.

- A type of private law

Aims of Civil Law

- to protect individual's rights

- to restore wronged party back to original position

Presumption of Innocence

Refers to the legal concept in which a person is assumed to be innocent until proven guilty by the court.

This means that accused persons have a right to silence because they do not have to prove they did not commit the crime.

Participants in a Crime:

Principal Offender/Principal in the first degree

The person who actually committed the crime.

Participants in a Crime:

Abettor/Principal in the second degree

A person who aids (helps the principal offender carry out the crime), abets (encourages the principal offender to carry out the crime), counsels (advices the principal offender on how to carry out the crime) or procures (organises someone else to carry out the crime) the commission of an offence.

Anyone who acts as an abettor in an indictable or summary offence may be treated as if they are a principal offender.

Participants in a Crime:

Accessory

A person who impedes the apprehension, prosecution, conviction or punishment of the principal offender.

- Accessory before the fact

Any person who plans the crime, but does not physically undertake the criminal act.

- Accessory after the fact

Any person who knowingly hides the crime or criminal/s from the police.

Crimes: Homicide

The killing of a human being by another human being

Crimes: Murder

A person of sound memory and discretion unlawfully kills any reasonable creature in being and under Queen's peace with malice aforethought either express or implied, the death following within a year and a day.

Crimes: Manslaughter

The unlawful killing of another person without malice aforethought (intent to kill) or under mitigating circumstances (such as self defence).

Maximum sentence of 20 years imprisonment

- Voluntary Manslaughter

When a person is guilty of murder but his or her liability is reduced due to mitigating circumstances, such as self defence.

- Involuntary Manslaughter

When there is no intention to kill but death occurred because of one of the following factors:

1. Harm was intentionally inflicted, although there was no intention to kill, it was severe.

2. Death was caused through criminal negligence

3. Accused caused the death while committing an unlawful dangerous act.

Crimes: Assault

The unlawful interference with the body of another person through the intentional application of force or threat of force. The harm caused my include, bodily injury, pain, damage, deprivation of liberty or insult.

Maximum sentence of 5 years imprisonment

Crimes: Theft

The dishonestly appropriate property belonging to another with the intention of permanently depriving the other of it.

Malice Aforethought

A concept that exists when a defendant has a guilty mind and intended to commit a crime.

Role of the Police

The role of the Police:

- To maintain law and order whilst enforcing the law

- To prevent crime and deter people from committing crime by patrolling ad catching offenders

- Educating people by providing advice

Sanctions: Imprisonment

Imprisonment is the most serious sanction available in Australia. It involves the deprivation of a person's liberty and exposes that person to an environment that can be occasionally violent (last resort sentence).

Magistrates and Judges can impose different lengths of imprisonment for specific offences. Time held in custody before sentencing will usually be deducted from time served.

Sanctions: Community Correction Order

This sanction imposes stringent conditions, with at least two weekly visits from a corrections officer and a maximum of 12 hours of supervision per week, including at least eight hours of community work, with counselling and treatment.

Sanction just short of imprisonment but more severe than a community based order. It is usually given when a 12 month prison term could be seen as appropriate.

Sanction: Community Based Order

A community based order may be imposed for a period of up to 24 months for any offence punishable by imprisonment or a fine of up to $500.

They usually require the offender to perform unpaid community work, attend supervision and counseling as required, and attend alcohol/drug testing or counseling, if appropriate.

Sanctions: Drug Treatment Order (DTO)

A court order issued by the Magistrates' Court (Drug Court Division) which provides treatment and supervision for offenders whose crimes are linked to drug and alcohol abuse.

Includes 2 Components:

- Treatment of the offender's drug or alcohol abuse (such as rehabilitation programs and counselling) and the nominated period of detention in the event that the order is broken (this involved imprisonment of up to 2 years).

Sanctions: Fine/Monetary Penalty

A form of monetary payment and the most common form of penalty handed down for summary offences. A fine may be handed down with or without a conviction. The court may also impose a single fine for multiple offences.

To determine an appropriate fine for an offence, the court may take into consideration:

- Financial circumstances

- Number of penalty units set for a particular offence

- Burden it would place on the offender

- Method of payment (instalments, time to pay)

Sanctions: Restitution Order

Compensation Order

Restitution Order

The Court may order a defendant who has possession of stolen goods in respect of which they have been found guilty to deliver or restore the good to the owner.

Compensation Order

The Court may order the defendant to pay compensation for the loss, destruction or damage of any property resulting from a criminal offence.

Defences: Self-Defence

Occurs when someone uses force to defend himself, herself or another person from death or really serious injury.

To use self-defence, the person must have reasonable grounds to believe that his or her conduct was necessary in order to defend his or herself or another person from death or really serious injury.

Defences: Defensive Homicide

Used as a defence to the charge of murder, when the defendant believed that it was necessary to protect themselves or someone else, but a court finds that the belief or action was ultimately unreasonable.

A person may be charged with the crime of defensive homicide or a jury may find a person not guilty of murder, but guilty of defensive homicide.

Defences: Lawful Use of Force

A defendant will not be found guilty of an offence, such as assault, if the force used was lawful, reasonable and proportionate to the situation.

Example: In sporting situations when a boxer hits another boxer, a footballer tackles another footballer, or when police need to make an arrest or prevent crime.

Defences: Family Violence

In circumstances where family violence is alleged, a person may have reasonable grounds for believing his or her conduct is necessary to 'defend himself or herself or another person; or to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person'.

Defences: Automatism

A defence that suggests that the defendant committed a crime without conscious thought. The act must have been committed as a result of muscle spasms or reflexes, or while not conscious by virtue of a state such as sleepwalking.

Defences: Mental Impairment

A defence where a person is unable to recognise the nature of what he or she is doing or that it is wrong, due to a mental disturbance.

Defences: Necessity

A defence that argues that the crime they committed was necessary to prevent a greater harm

Defences: Sudden or Extraordinary Emergency

A person will be found not guilty of murder if it is found that the conduct carried out by him or her was in response to a sudden or extraordinary emergency. The person must believe that the circumstances of sudden or extraordinary emergency existed and that committing the offence was the only way to deal with the emergency. The conduct of the person must also be found to be a reasonable response to the emergency.

The Impact of Crime on Society and Individuals

Impact of Crime on Society

The cost of crime to a community includes breakdowns in relationships between people, fear and loss of confidence in public safety.

Impact of Crime on Individuals

Physical and Psychological Impacts:

- Guilt and self-blame.

- Anxiety, including stress-related disorders such as irrational fears and panic attacks

- Physical injuries such as wounds, lacerations, broken bones, sprains, burns

- Sleeplessness and eating disorders

Lifestyle Issues:

- Concerns about personal safety

- Problems with important relationships

- Social withdrawal

- Increased feelings of vulnerability

Financial Impacts:

- Medical bills (emergency transportation,

physiotherapy, medical supplies)

- Occupational therapy

- Job retraining

- Mental health counselling and therapy

- Costs of replacing locks and changing security devices

Sanction

A penalty imposed under criminal law

E.g. Imprisonment, Fine

Recidivism

The repeat offending of a criminal after they have served punishment for crimes

committed

Parole

The early release of a prisoner to serve the remainder of their sentence in the community. May be given to an offender for good behaviour.

Concurrent Sentences

When an offender is imprisoned for a number of offences, the person may be directed to serve these sentences together/at the same time, so that the prison term served is the longest term given at the trial.

Cumulative Sentences

When an offender is imprisoned for a number of offences, the person may be directed to serve a second sentence after the first has been completed.

Police Powers: Searching Suspects

Police have the power to search the body, clothing and property in the possession of a person arrested if necessary to find a concealed weapon or to preserve evidence that might be used to prove an alleged offence.

Police Powers: Making Arrests

The police or any private citizen (citizen's arrest) has the power to make a lawful arrest of a person found committing a crime (or suspicion of having committed an offence), if it necessary to either:

- Ensure the court appearance of an offender

- To preserve public order

- Prevent the person from offending further

- Maintain the safety if the public or the offender

Police Powers: Surveillance and Telecommunications Interceptions

The police have the power to apply to the Federal Court for a warrant to intercept communications. Any information gathered without a warrant is inadmissible in court. Police may also obtain a warrant for surveillance if it is essential to their investigation of an offence, or an offence is likely to be committed.

Police Powers: Searching Property

Victorian police have the power to enter private property without a search warrant, for the purposes of making an arrest if they believe that someone has committed a serious indictable offence, punishable by 5 years or more, If they believe they can find a person who has escaped legal custody, or is in the process of committing a serious indictable offence such as armed robber, rape or murder.

Police Powers: Making Arrests With a Warrant

Police have the power to arrest a person without a warrant if they believe on reasonable grounds, to have committed an offence.

Police Powers: Making Arrests Without a Warrant

The police may obtain a warrant to arrest a person when there are reasonable grounds to believe that the person will now appear in court, searching for a suspect, a prisoner has escaped, bail conditions have been breached or on the suspicion that a person has broken the law.

A warrant provides police with the court's permission to take a person into custody and keep that person in custody until officially released by police.

Once arrested, the police have the power to search, frisk and seize any documents or articles from the accused person.

Factors Considered in Sentencing

Courts take numerous factors into account when sentencing offenders. These include the seriousness of the offence, the prior convictions of the defendant, the suffering of victims, the degree of remorse shown by the offender and the offender's emotional and psychological state.