Full Set for Exam #1

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Common Law

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189 Terms

1

Common Law

made through judicial decisions; based on precedent

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2

precedent

judges follow the other ruling judges have made in similar cases

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3

Statute Law

Law made by parliament; introduced in a bill, then (if passed) becomes an act

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4

crime

an act or omission against the community at large, which is punishable by the state; an act society has deemed to be criminal

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5

context for crime

social and economic factors - culture, history, religion, political systems, social attitudes

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6

perspectives

concepts on morality change geographically over time

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7

Stakeholders

people/groups who are affected by the law and have interests in the issue

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8

Law reform

the process of constantly updating and changing the law so it remains relevant and effective

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9

Law Reform Process

find the problem, consults with stakeholders, consults with community, try to fix problems

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10

Criminal law includes

investigation, enforcement, prosecution, defence, criminal trial, sentencing, punishment

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11

Criminal law is concerned with

a wrong against the public as a whole

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12

criminal law is about crimes

against a person, state or property

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13

prosecution

the state or crown; party seeking to present a case against the accused, establish each element of the crime through evidence

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14

police and/or director of public prosecution

prosecute offender in court parties

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15

offender

a person who commits a crime; the accused or defendant

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16

what is the standard of proof

The prosecution must prove that the accused is guilty beyond reasonable doubt

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17

prosecute

(v.) to bring before a court of law for trial; to carry out

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18

Actus Reus

Criminal conduct- specifically, intentional or criminally negligent (reckless) action or inaction that causes harm; 'a guilty act'; the physical element of a crime

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19

Mens Rea

the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused.

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20

Do all crimes require mens rea?

no, speeding doesn't

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21

are there various levels of actus rea?

yes - murder

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22

fault element

intention, recklessness

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23

Summary offence

A minor (less serious) criminal offence that can be heard in a Magistrates' Court without a jury.

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24

Indictable offence

a serious offence generally heard before a judge and a jury

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25

Parties to a crime

All those who take part in the commission of a crime, including those who aid and abet and are therefore criminally liable for the offense.

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26

Principal in the first degree

person who actually commits the act, likely to recieve the highest sentence

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27

An example of principal in the first degree

in an armed robbery, this is the person who pointed the gun and stole the money

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28

Principal in the second degree

A person who was present at the crime scene and who aided, abetted, counseled, or encouraged the principal. May be given an lesser sentence (depending on circumstance)

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29

Principle in the second degree example

in an armed robbery, this can be the lookout

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30

Accessory before the fact

A person who orders a crime or helps the principal commit the crime but who is not present during the crime

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31

Accessory after the fact

A person, who, knowing a crime has been committed, helps the principal, or an accomplice avoid capture or helps them escape

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32

Accessory after the fact example

Driving getaway car, disposing of evidence

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33

Ratify

sign or give formal consent to (a treaty, contract, or agreement), making it officially valid.

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34

Age of criminal responsibility

The age from which a child is deemed capable of committing a criminal offense (age 10 in Australia)

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35

Doli incapax

Legal presumption that a child under the age of criminal responsibility does not possess the necessary knowledge required to have criminal intent

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36

Situational Crime Prevention

An approach to crime prevention that focuses on the settings where crime occurs, rather than on those committing specific criminal acts; making it more difficult to commit the act, through an increase in the risk of getting caught, more difficult to perpetrate and less reward

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37

Social crime prevention

An approach to crime prevention that addresses the root causes of crime

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38

Purpose and role of police

enforce criminal laws, maintain public order, make arrest, collect evidence, special legal powers for carrying out roles effectively

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39

details police may be looking for at a crime scene

meticulous description of offender, location, other parties involved, vehicles, witnesses, registration numbers

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40

Police powers

search & seize property; recommendations about bail; technology to gather evidence; arrest , detain & interrogate

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41

when can police arrest

on reasonable grounds, otherwise has to be in the act of committing offence

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42

warrant

legal document issued by the court allowing police to exercise some of legal powers, protect rights + privacy of citizens

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43

when arresting the offender

must be informed of certain rights + reason for arrest, right to communicate with friend / relative to notify them of whereabouts, + speak to lawyer, right to silence (other than name + address), personal belongings entered as exhibits into property book + secured, checked for welfare by officer

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44

interview

video recording for all interviews; suspect read rights + allowed to contact lawyer

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45

when in police custody

photograph suspect, take fingerprints; take DNA sample (can refuse consent, then police need court order); can be held for 4hrs (or 2 if ATSI or youth), police can apply for an extension up to 8hrs; then must be charged / unconditionally released

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46

Summons

legal document stipulating day, time, place person must attend court Accused → also lists charge, for which they must enter a plea in court Failure to appear can → more charges

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47

Bail

can be released on bail while awaiting trial can have conditions → e.g. regular check-ins at police station, non-association orders, lodge security deposit will be recommended by police not recommended → flight risk or extreme violence onus is on offender to show cause + justify their release

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48

remand

pre-trial custody normally held in police cell or remand centre normally taken off sentence if found guilty

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49

discretion

the freedom to decide what should be done in a particular situation

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50

stages of the criminal investigation process

reporting crime -> investigating crime -> arrest and charge, summons, warrants -> bail and remand -> detention and interrogation, rights of suspects

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51

Reporting

responsibility of citizens, certain crimes are more widely reported than others

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52

investigation

gather evidence for prosecution case

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53

arrest

must be informed of rights

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54

custody

max 4 hours, have to be charged or unconditional release

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55

Crimes Act 1914 (Cth)

Act of the Parliament of Australia which addresses the most serious federal offences — that is, crimes against the Commonwealth

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Crimes against the person

crimes that direct violence or the threat of violence against others (assault)

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57

crimes against the sovereign

killing the king

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58

driving offences

Offences that involve breaking the rules of the road, such as speeding or not wearing a seatbelt

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59

preliminary offences

Attempts, conspiracy

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60

victimless crimes

violations of law in which there are no obvious victims (drug use)

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61

economic crimes

an act committed in violation of the criminal law for the purpose of monetary gain and financial benefits (money laundering)

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62

Public order offences

Acts that are deemed to disturb the public order in some way e.g. indecent language or behaviour

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63

Regulatory offences

Breach of water restrictions, fire restrictions or public transport rules

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64

mens rea

criminal intent (guilty mind), fault elements

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65

physical elements

Voluntariness, omission. NO MENTAL IS TAKEN INTO ACCOUNT; these are the elements that are tangible or can be visually seen.

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66

Voluntariness

whether it was your decision or not (muscle spam, sleepwalking are INVOLUNTARY)

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67

omission

not doing something that should have been done (feeding children)

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68

fault elements (from highest to lowest level of severity)

intent, recklessness, negligence

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69

Intent

intention or purpose (meant to rob a bank)

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70

Recklessness

The state of being aware that a risk does or will exist and nevertheless acting in a way that consciously disregards this risk. Reasonably forseeable (driving with eyes closed)

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71

Negligence

unknown consequence, but the result was so extreme it's a crime. (going to a country w/h a law about all boys wearing blue shirts, but tourist doesn't since they didn't know about law and gets arrested)

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72

Psychological

poor mental states affect decisions and abilities. Important for mens rea

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73

Psychological examples

drugs, mental illness

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74

Social

different association theory - environment causes morality changes. Anomie (alienation). Subculture theory - alternate norms + morals

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75

Social Examples

prison population, gangs

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76

Economic

low social-economic stance. Lack skills, education, employment and have a desire for resources and money.

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77

Economic examples

b & e, minor theft, stealing (and selling) cars

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78

Genetic

behavioural genetics and neuroscience to determine criminal behaviour

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79

Genetic examples

addiction, schizophrenia (likely to. be used as a partial defence)

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80

political

act put against state authorities, feel oppressed/disagree with the law

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81

political examples

terrorism, treason, direct acts toward government

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82

self-interest

behaviours that commit a crime for personal gain, satisfaction and rewards - greed

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83

self-interest examples

drugs, human trafficking, tax fraud

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84

2 types of situational crime prevention

architectural design and rational choice theory

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85

Architectural Design

how a space is planned (lighting, cameras, etc)

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86

Rational Choice Theory

reducing reward, encourages better life choices (cameras on ATMs, tags on clothes that squirt blue liquid)

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87

social crime prevention

address the underlying social factors that may lead to criminal behaviour (education, welfare programs, personal factors)

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88

victim impact statement

statement by the victim of a crime, or someone close to the victim who has been impacted that explains the harm suffered by the victim

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89

when is the victim impact statement presented

at sentence hearing, after offender is found guilty and before sentence is passed

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90

Pros of Victim Impact Statements

gives role to victim in CJS and gives psychological benefit, offender is faced with harm they've caused

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91

Cons of Victim Impact Statements

subjective view of victim (when sentencing judge must consider objective factors)

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92

weight of victim impact statements

up to court discretion on how much weight it should be given, however victim's 'social worth' can influence

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93

what is circle sentencing designed for

repeat offenders and more serious crimes, customary law and traditional, has the full power of the court

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94

what is circle sentencing's goal

reduce recidivism with culturally competent system (doesn't work well)

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95

Accessibility

justice must be accessible to all; responsibility to govt to provide justice through a functioning adequately resourced legal system

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96

Required to have Accessible justice

access to the courts and legal processes, legal decisions must be free from bias and based on law, legal aid

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97

Sentencing

sanction imposed by the state in relation to a criminal offence

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98

sentencing requires judgement about

the severity of offence, criminal intent, need for punishment; must balance interests of victim(s), community, accused

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99

purposes of punishment

retribution, deterrence (specific or general), rehabilitation, incapacitation, denunciation

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100

Deterrence

the attempt to discourage criminality through the use of punishment (specific and general)

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