Full Set for Exam #1

Common Law

Common Law

made through judicial decisions; based on precedent

precedent

judges follow the other ruling judges have made in similar cases

Statute Law

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

crime

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

context for crime

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

perspectives

concepts on morality change geographically over time

Stakeholders

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

Law reform

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

Law Reform Process

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

Criminal law includes

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

Criminal law is concerned with

a wrong against the public as a whole

criminal law is about crimes

against a person, state or property

prosecution

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

police and/or director of public prosecution

prosecute offender in court parties

offender

a person who commits a crime; the accused or defendant

what is the standard of proof

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

prosecute

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

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

Mens Rea

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

Do all crimes require mens rea?

no, speeding doesn't

are there various levels of actus rea?

yes - murder

fault element

intention, recklessness

Summary offence

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

Indictable offence

a serious offence generally heard before a judge and a jury

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.

Principal in the first degree

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

An example of principal in the first degree

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

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)

Principle in the second degree example

in an armed robbery, this can be the lookout

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

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

Accessory after the fact example

Driving getaway car, disposing of evidence

Ratify

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

Age of criminal responsibility

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

Doli incapax

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

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

Social crime prevention

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

Purpose and role of police

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

details police may be looking for at a crime scene

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

Police powers

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

when can police arrest

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

warrant

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

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

interview

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

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

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

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

remand

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

discretion

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

stages of the criminal investigation process

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

Reporting

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

investigation

gather evidence for prosecution case

arrest

must be informed of rights

custody

max 4 hours, have to be charged or unconditional release

Crimes Act 1914 (Cth)

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

Crimes against the person

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

crimes against the sovereign

killing the king

driving offences

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

preliminary offences

Attempts, conspiracy

victimless crimes

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

economic crimes

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

Public order offences

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

Regulatory offences

Breach of water restrictions, fire restrictions or public transport rules

mens rea

criminal intent (guilty mind), fault elements

physical elements

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

Voluntariness

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

omission

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

fault elements (from highest to lowest level of severity)

intent, recklessness, negligence

Intent

intention or purpose (meant to rob a bank)

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)

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)

Psychological

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

Psychological examples

drugs, mental illness

Social

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

Social Examples

prison population, gangs

Economic

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

Economic examples

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

Genetic

behavioural genetics and neuroscience to determine criminal behaviour

Genetic examples

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

political

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

political examples

terrorism, treason, direct acts toward government

self-interest

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

self-interest examples

drugs, human trafficking, tax fraud

2 types of situational crime prevention

architectural design and rational choice theory

Architectural Design

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

Rational Choice Theory

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

social crime prevention

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

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

when is the victim impact statement presented

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

Pros of Victim Impact Statements

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

Cons of Victim Impact Statements

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

weight of victim impact statements

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

what is circle sentencing designed for

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

what is circle sentencing's goal

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

Accessibility

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

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

Sentencing

sanction imposed by the state in relation to a criminal offence

sentencing requires judgement about

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

purposes of punishment

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

Deterrence

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