legal u1 aos2

what is defence to a crime

justification or lawful reason given by an accused person as to why they are not guilty of a criminal offence

defences to a crime in victoria include:

self defence, mental impairment, duress, sudden or extraordinary emergency, automatism, intoxication, accident

murder

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

self defence

the use of reasonable force to defend against an attack

when can an accused use self defence as a defence

if they:
believed their actions were necessary to protect or defend themselves
perceived their actions to be a reasonable response in the circumstances

mental impairment

a condition of the mind which impacts on a person's ability to know the nature and quality of his or her conduct, or that the conduct was wrong

when can a person use mental impairment as a defence

if they:
did not know what they were doing because they had little understanding of the nature and quality of their actions
did not know their conduct was wrong or could not reason or think about their conduct like an ordinary person

duress

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

a person can use duress as their defence if they had reasonable belief that:

a threat of harm existed
the threat would have been carried out unless the offence was committed
committing the offence was the only reasonable way to avoid threatened harm
their conduct was a reasonable response to the threat

sudden or extraordinary emergency

an emergency that involves a risk of death or serious injury

a person can use sudden or extraordinary emergency as their defence if they had reasonable belief that:

there was a sudden or extraordinary emergency
their actions were the only reasonable way of dealing with the situation
their actions were reasonable in the situation

automatism

a state in which a person has a total loss of control over their bodily movements so that they cannot form an intention to commit a crime

an accused can use automatism as defence when a crime is committed

while sleeping or sleepwalking
while suffering a concussion
during an epileptic seizure
as a result of a medical condition
a side effect of the proper use of medication

intoxication

the state in which the body is poisoned by alcohol or another substance and the person's physical and mental control is significantly reduced

a person can use intoxication as defence if

the accused can prove their state of intoxication was not self

accident

the actions of the accused were not deliberate or intentional

the accused can use accident as defence if

actions took to commit the offence were involuntary, unintentional or reasonable unforeseeable by an ordinary person

unfit to stand trial

inability of accused to understand the nature of their charges, enter a plea, follow the course of trial and instruct their lawyer
(jury determines this)

elements of murder

the killing was unlawful
the accused act's were voluntary
accused acted with intent to kill or cause serious harm
accused committed acts that caused the victim's death

killing was unlawful

accused did not have legal justification for causing victim's death

accused's acts were voluntary

accused committed the acts when they were awake, aware and in control of their bodily actions

accused committed acts that caused victim's death

accused's acts contributed significantly and substantially to the victim's death

accused acted with intent to kill or cause serious harm

accused acted with a guilty mind

possible sanctions for murder

imprisonment:
for life
standard is 25 years
30 years if victim was an emergency worker

arson

the intentional and unlawful use of fire to destroy or damage property with the intention to endanger life of with the intent to gain

elements of arson

the accused damaged or destroyed the property by fire
property belonged to another person
accused purposely damaged or destroyed property by fire or knew the damage was the result of their actions
accused has no lawful excuse for damaging or destroying the property

purpose of criminal law

protect individuals
protect property
protect society
promote justice

protect individuals

establishing crimes and processes to deal with people who commit crimes

protect property

protects both privately and publicly owned including land and the environment, and personal goods

protect society

setting standard and making it clear what behaviour is not tolerated by the community and the legal system to help maintain public order and community safety

protecting justice

providing processes to deal with offenders and enforce the law which helps prevent victims of crime, and their family/friends to take the law into their own hands and enforcing punishment

what is a crime

an act or omission that is against an existing law, harmful to an individual or to society and punishable by law

against an existing law

for a person to commit a crime they must undertake an action that is prohibited by a current law

harmful to an individual and to society

a criminal act has an impact on both the victim and the wider community physically, financially or psychologically
victimless crime is also harmful to society even if it is perceived to only cause harm to themselves

punishable by law

a person who is guilty of committing a crime can have a penalty imposed on them

presumption of innocence

guarantee by the state to its citizens that if they are accused of a crime they will be considered, and treated, as being not guilty until the charge has been proved beyond reasonable doubt

standard of proof

prosecution must prove the accused as guilty beyond reasonable doubt

how is the presumption of innocence protected

burden of proof
standard of proof
right to apply and be granted bail
right to legal representation
police offers cannot arrest without a good reason
right to silence
previous convictions cannot be revealed in court
right to appeal

burden of proof

prosecution has the obligation to present evidence in court to prove the guilt of the accused rather than the accused having to prove their innocence

right to bail

person arrested does not have to be held in custody without valid reasoning

right to silence

accused does not need to answer any questions and is not required to give evidence in court
silence cannot be interpreted as guilt

previous convictions cannot be brought to court

so the accused is not 'presumed' guilty because of their past actions

right to appeal

case can be heard again in a higher court if it is believed the conviction/sanction is not fair

actus reus

'guilty act'
must have physically done to wrongful action or inaction

mens rea

'guilty mind'
must have intentionally committed the wrongful action or inaction
state of mind of the accused at the time of offending

elements of crime

for a crime to have been committed actus reus and mens rea must exist at the same time

strict liability

for some crimes the prosecution is not required to prove that the accused had the intention to commit the crime
often summary offences

age of criminal responsibiltiy

minimum age a person must be to be charged with committing a crime

what is the age of criminal responsibility in vic

under 10 cannot be charged with a crime
10

when is burden of proof reversed

when accused is pleading a certain defence (eg. mental impairment)
if drugs were found if accused's possession they need to prove their own innocence

crimes are classified according to:

social purpose of offence
type of offender or victim
seriousness of offence

social purpose of the offence

categorising the crime according to whether it involved a wrongful action or inaction against a person, property, society as a whole or the criminal justice system

type of offender or victim

juvenile, white collar, cyber, prejudice motivated, organised

seriousness of the offence

indictable
summary

summary offences

minor criminal offences

features of summary offences

heard in magistrates court by a magistrate
under the summary offences act 1966
sanction: fine, short imprisonment, community corrections

indictable offences

serious crimes

features of an indictable offence

heard in county or supreme court by a judge and jury
under crimes act 1958
sanction: long term imprisonment

indictable offences heard summarily

some indictable offences can be heard and determined as if they are minor offences in a magistrates court by a magistrate

what indictable offences can be heard summarily

if it is punishable by less than 10 years in prison or fine is less than 1200 penalty units ($230,000)

principal offender

person who commits an offence and has carried out the actus reus

person is involved in a crime when they

intentionally assist, encourage or direct other to commit a crime
make an agreement to commit a crime with someone else

accessory

a person who without lawful excuse, does an act to help another person who has committed a serious offence to avoid being apprehended, prosecuted, convicted or punished

being involved in a crime

person who has committed the crime and is responsible for the crime to the same degree as the principal offender