Full Set for Exam #1

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189 Terms

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Common Law
made through judicial decisions; based on precedent
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precedent
judges follow the other ruling judges have made in similar cases
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Statute Law
Law made by parliament; introduced in a bill, then (if passed) becomes an act
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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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context for crime
social and economic factors - culture, history, religion, political systems, social attitudes
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perspectives
concepts on morality change geographically over time
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Stakeholders
people/groups who are affected by the law and have interests in the issue
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Law reform
the process of constantly updating and changing the law so it remains relevant and effective
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Law Reform Process
find the problem, consults with stakeholders, consults with community, try to fix problems
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Criminal law includes
investigation, enforcement, prosecution, defence, criminal trial, sentencing, punishment
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Criminal law is concerned with
a wrong against the public as a whole
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criminal law is about crimes
against a person, state or property
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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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police and/or director of public prosecution
prosecute offender in court parties
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offender
a person who commits a crime; the accused or defendant
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what is the standard of proof
The prosecution must prove that the accused is guilty beyond reasonable doubt
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prosecute
(v.) to bring before a court of law for trial; to carry out
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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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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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Do all crimes require mens rea?
no, speeding doesn't
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are there various levels of actus rea?
yes - murder
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fault element
intention, recklessness
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Summary offence
A minor (less serious) criminal offence that can be heard in a Magistrates' Court without a jury.
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Indictable offence
a serious offence generally heard before a judge and a jury
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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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Principal in the first degree
person who actually commits the act, likely to recieve the highest sentence
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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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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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Principle in the second degree example
in an armed robbery, this can be the lookout
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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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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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Accessory after the fact example
Driving getaway car, disposing of evidence
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Ratify
sign or give formal consent to (a treaty, contract, or agreement), making it officially valid.
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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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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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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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Social crime prevention
An approach to crime prevention that addresses the root causes of crime
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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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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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Police powers
search & seize property; recommendations about bail; technology to gather evidence; arrest , detain & interrogate
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when can police arrest
on reasonable grounds, otherwise has to be in the act of committing offence
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warrant
legal document issued by the court allowing police to exercise some of legal powers, protect rights + privacy of citizens
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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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interview
video recording for all interviews; suspect read rights + allowed to contact lawyer
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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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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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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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remand
pre-trial custody normally held in police cell or remand centre normally taken off sentence if found guilty
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discretion
the freedom to decide what should be done in a particular situation
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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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Reporting
responsibility of citizens, certain crimes are more widely reported than others
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investigation
gather evidence for prosecution case
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arrest
must be informed of rights
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custody
max 4 hours, have to be charged or unconditional release
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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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crimes against the sovereign
killing the king
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driving offences
Offences that involve breaking the rules of the road, such as speeding or not wearing a seatbelt
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preliminary offences
Attempts, conspiracy
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victimless crimes
violations of law in which there are no obvious victims (drug use)
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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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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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Regulatory offences
Breach of water restrictions, fire restrictions or public transport rules
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mens rea
criminal intent (guilty mind), fault elements
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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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Voluntariness
whether it was your decision or not (muscle spam, sleepwalking are INVOLUNTARY)
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omission
not doing something that should have been done (feeding children)
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fault elements (from highest to lowest level of severity)
intent, recklessness, negligence
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Intent
intention or purpose (meant to rob a bank)
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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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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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Psychological
poor mental states affect decisions and abilities. Important for mens rea
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Psychological examples
drugs, mental illness
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Social
different association theory - environment causes morality changes. Anomie (alienation). Subculture theory - alternate norms + morals
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Social Examples
prison population, gangs
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Economic
low social-economic stance. Lack skills, education, employment and have a desire for resources and money.
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Economic examples
b & e, minor theft, stealing (and selling) cars
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Genetic
behavioural genetics and neuroscience to determine criminal behaviour
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Genetic examples
addiction, schizophrenia (likely to. be used as a partial defence)
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political
act put against state authorities, feel oppressed/disagree with the law
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political examples
terrorism, treason, direct acts toward government
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self-interest
behaviours that commit a crime for personal gain, satisfaction and rewards - greed
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self-interest examples
drugs, human trafficking, tax fraud
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2 types of situational crime prevention
architectural design and rational choice theory
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Architectural Design
how a space is planned (lighting, cameras, etc)
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Rational Choice Theory
reducing reward, encourages better life choices (cameras on ATMs, tags on clothes that squirt blue liquid)
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social crime prevention
address the underlying social factors that may lead to criminal behaviour (education, welfare programs, personal factors)
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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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when is the victim impact statement presented
at sentence hearing, after offender is found guilty and before sentence is passed
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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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Cons of Victim Impact Statements
subjective view of victim (when sentencing judge must consider objective factors)
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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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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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what is circle sentencing's goal
reduce recidivism with culturally competent system (doesn't work well)
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Accessibility
justice must be accessible to all; responsibility to govt to provide justice through a functioning adequately resourced legal system
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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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Sentencing
sanction imposed by the state in relation to a criminal offence
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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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purposes of punishment
retribution, deterrence (specific or general), rehabilitation, incapacitation, denunciation
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Deterrence
the attempt to discourage criminality through the use of punishment (specific and general)