Criminal and Civil Law Notes

Criminal Law

  • Criminal law deals with offenses against society (e.g., speeding, murder).
  • The accused is charged by Victoria Police and can plead 'guilty' or 'not guilty'.
  • Differs from civil law, which primarily deals with monetary disputes.

Key Questions in Criminal Law

  • Purpose: To maintain order, protect citizens, and punish lawbreakers.
  • Examples: Brainstorming of various crimes.
  • Parties Involved:
    • Accused.
    • Prosecution (Victoria Police or the DPP).
  • DPP (Director of Public Prosecutions):
    • Independent officer heading the OPP.
    • Responsible for prosecuting indictable offences on behalf of the Crown.
  • OPP (Office of Public Prosecutions):
    • Prepares and conducts criminal proceedings for the DPP.

Victims and Witnesses

  • Victims: Those who suffer harm or loss due to a crime. Can be primary or secondary victims.
  • Witnesses: Individuals who observe a crime and may be called to give evidence.

Courtroom Dynamics

  • Accused Pleas: 'Guilty' or 'Not guilty'.
  • Key People:
    • Judge.
    • Jury.
    • Accused.
    • Prosecution.
    • Victims.
    • Witnesses.
    • Lawyers.
    • Media/Public.

Bail and Remand

  • Bail: Temporary release of the accused after charges, awaiting trial.
    • Conditions: Surrender passport, report to police, bail guarantor (money forfeited upon non-compliance).
  • Remand: Detention of accused if deemed an unacceptable risk (e.g., danger to community, risk of reoffending, flight risk).

Summary vs. Indictable Offences

  • Summary Offences:
    • Nature: Minor criminal offences.
    • Legislation: Summary Offences Act 1966 (Vic), Road Safety Road Rules 2017, Road Safety Act 1986 (Vic).
    • Trial by Jury: No.
    • Court: Magistrates’ Court.
  • Indictable Offences:
    • Nature: Serious criminal offences.
    • Legislation: Crimes Act 1958 (Vic).
    • Trial by Jury: Yes (if pleading 'not guilty').
    • Court: County Court or Supreme Court.

Criminal vs. Civil Law

  • Criminal Law:
    • Deals with crimes/offenses (e.g., speeding, murder).
    • Accused pleads 'guilty' or 'not guilty'.
    • Prosecution brings allegations on behalf of the Crown/State.
    • Verdict: 'Guilty' or 'not guilty', leading to a sanction.
  • Civil Law:
    • Deals with private disputes between individuals, businesses, or government.
    • Plaintiff sues the defendant.
    • Examples: Negligence, breach of contract, copyright, family law, defamation, employment law.
    • Outcome: Defendant held 'liable' or 'not liable', potentially paying a remedy ($).

Purpose and Examples of Civil Law

  • Purpose: To resolve disputes and compensate for harm/loss.
  • Examples: Breach of contract, personal injury (negligence), intellectual property law, employment law, defamation, property law, discrimination, consumer law.
  • Parties: Plaintiff and Defendant.
  • Plaintiff brings the case, making a claim against the defendant.
  • Legal citation Example: Wilson v Bauer Media

Key People and Outcomes in Civil Court

  • Key People:
    • Judge.
    • Jury.
    • Plaintiff.
    • Defendant.
    • Witnesses.
    • Lawyers.
    • Media/Public.
  • Outcome (Judgment): Defendant found 'Liable' or 'Not liable'.
  • Remedy: Court order to restore the plaintiff, involving:
    • Damages: Money paid by the defendant to compensate the plaintiff.
    • Injunction: Order forcing the defendant to act or refrain from acting.

Additional Notes on Civil Law

  • Civil dispute: Disagreement where one party makes a legal claim against another.
  • Purposes of Civil Law:
    • Enable enforcement of legal rights.
    • Determine liability.
    • Award remedies.
  • Liability: Legal responsibility for acts or omissions.
  • Remedy: Court order to restore the plaintiff.

Resolution of Civil Disputes

  • Not all disputes go to court; many are settled out-of-court.
  • Methods and Institutions:
    • Methods: Mediation, arbitration, conciliation.
    • Institutions: Consumer Affairs Victoria (CAV), Victorian Civil and Administrative Tribunal (VCAT), Courts.

Burden and Standard of Proof

  • Burden of Proof: Responsibility of proving the case facts.
  • Standard of Proof: Level of evidence required for guilt/liability.
  • Criminal Law:
    • Burden: Prosecution (making allegations).
    • Standard: Beyond reasonable doubt (no real doubt of guilt).
  • Civil Law:
    • Burden: Plaintiff (making the claim).
    • Standard: On the balance of probabilities (>$50% likely defendant is liable).

Defamation

  • Falls under civil law.
  • Publication of material harming a person’s reputation.
  • Requires:
    • Publication to a 3rd party.
    • Identification of the defamed person.
    • Defamatory meaning.
    • Harm caused or likely to cause serious harm.

Legal vs. Non-Legal Rules

  • Legal Rule: Formally recognized, applied, and enforced by the state (e.g., police).
  • Non-Legal Rule: Not enforced by the state, upheld through social mechanisms like peer pressure and cooperation (norms).

Why Laws are Needed

  • Maintain social cohesion: Interconnectedness and cooperation within society.
  • Maintaining Order and Stability.
  • Protecting Rights and Freedoms.

Court Hierarchy

  • Structure with courts at different levels.
  • Cases are heard based on type and seriousness.

Victorian Court Hierarchy

  • Magistrates Court:
    • Handles most criminal and civil cases.
    • Claims up to 100,000.
  • County Court:
    • More serious criminal offences (excluding murder).
    • Civil claims above 100,000$$.
    • Appeals from Magistrates’ Court.
  • Supreme Court:
    • Trial Division: Serious criminal (including murder) and complex civil cases.
    • Court of Appeal: Hears appeals.

The High Court

  • Highest court in Australia.
  • Hears constitutional issues and appeals on major legal questions.

How Laws are Made

  • Primarily made by parliament.
  • Referred to as legislation, statutory law, or acts of parliament.

Law-Making Process

  1. Executive Government decides policy and drafts bills.
  2. Parliament considers bills.
  3. Governor-General approves passed bills.
  4. Bills become Acts of Parliament, administered by Government Departments.

Within Parliament

  • Divided into the House of Representatives and the Senate.
  • Bills are introduced in the House of Representatives.
  • Must pass by a majority in both houses to become law.

Separation of Powers

  • Divides government functions among the legislature, the executive, and the judiciary.

Roles of Each Branch

  • Legislature: Makes and changes laws.
  • Executive: Implements and administers laws.
  • Judiciary: Interprets laws and resolves disputes.

Purpose of Separation of Powers

  • Prevents single person/group from gaining complete authority.
  • Safeguards against abuse of power, tyranny, or corruption.

Focus on Murder

  • Criminal offence: Person causes death of another with intent to kill, inflict grievous bodily harm, or with reckless indifference to human life.

Role of Evidence in Murder Cases

  • Prosecution: Establishes facts and demonstrates guilt.
  • Accused: Demonstrates innocence.
  • Forms: Oral testimony, physical objects, documents, expert opinions.

Key Concepts in Criminal Law

  • Actus Reus: Latin for "guilty act" - committing the crime.
  • Mens Rea: Latin for “guilty mind” - intent to commit the crime.
  • Prosecution must establish both.

Elements of Murder

  • Intent: Accused intended to kill or cause serious injury.
  • Causation: Accused caused the victim’s death through their actions.
  • Voluntary actions by the accused.
  • Unlawful killing (not justified, e.g., not self-defense).