Area of Study 2: Criminal Law

Area of Study 2: Criminal Law Chapter 2: Crime

The need for criminal law Read The need for criminal law, Definition of a crime, Elements of a crime, Types of crime Learning activity 2.1 Questions 1-6

Principles of criminal liability Burden of proof In criminal cases – prosecution has the burden of proving the accused is guilty Director of public prosecutions (DPP) – cases in County, Supreme and High Court Victoria Police – cases in Magistrate’s Court • Strict liability cases: • No necessity to prove intention to commit crime (no mensrea) to prove guilty • Sufficient for the person to have committed the act against the law • Eg traffic offences, serving alcohol to underage persons

Principles of Criminal Liability continued… Standard of Proof Prosecution must prove offender is guilty of a crime beyond reasonable doubt If any reasonable doubt as to the guilty of the accused the verdict should be not guilty Reasonable: what the average person in the street would believe to be the case In Magistrate’s Court, a magistrate decides the verdict In Country an Supreme a jury of 12 make the decision and judge hands down the sentence Jury must attempt to reach a unanimous verdict If majority verdict is not reach jury is said to be a hung jury. Accused is free to go but can be put to trial again.

Principles of Criminal Liability continued… Presumption of Innocence Age of criminal responsibility Person is presumed to be innocent until they are proved guilty Protects the individuals from being wrongly arrested and treated as if guilty Natural justice – everyone has opportunity to put their case to an unbiased, independent decision-maker Presumed that a child under the age of 10 years cannot form the intention to commit a crime

Principles of Criminal Liability continued… Participants in a crime The Accused: person who has been accused of a crime Prosecution: person proving the case on behalf of the state Anyone who aids, abets, counsels or organises an indictable or summary offence is to be treated as if they were the main offender Accessory to a crime: any person who knowingly obstructs the apprehension, prosecution, conviction or punishment of the main offender of a crime Learning Activity 2.2 Questions 7, 8, 10, 11, 12

Crimes against the person - Murder • Murder is the unlawful killing of another person with malice aforethought, by a person who is of the age of discretion and sound mind. • Elements of murder: • Killing was unlawful • Accused was a person over the age of discretion • Victim was a human being • Accused was a person of sound mind • Victim’s death was caused by the accused • Malice aforethought existed • Malice Aforethought: • An intention to kill • An intention to inflict grievous bodily harm • Reckless indifference • An intention to assault a person who was trying to make a lawful arrest, which result in that person’s death

Causation The accused’s act must have caused the victims death Causal link: There must be an unbroken link between the act of the accused and the death of the victim If something intervenes to break that link, then the accused may not be found guilty of murder but could be charged with a lesser crime

Crimes against the person - Attempted Murder • A person who attempts to commit a serious crime is guilty of the indictable offence of attempting to commit that offence • Elements of attempted murder: • Intended to commit the murder • Believed that the murder was to take place • Been more than merely preparing to commit the murder • Been immediately connected with committing the murder

Crimes against the person - Manslaughter • Situation that result in death where there was no intention to kill or cause grievous bodily harm • Elements of manslaughter: • Accused intentionally inflicts harm on a victim • Accused’s actions (or inactions) fall below the expected standard of care that a reasonable person would have exercised in the same situation • Accused’s actions were unlawful

Infanticide: where a mother kills a child (under the age of two years) in circumstances that would ordinarily be murder but for the fact that she has a mental condition caused by the effects of that child’s birth Child homicide: person who kills a child under the age of 6 years in circumstances that would normally be called manslaughter is guild of the offence of child homicide

Defences to homicide Self-defence Defensive homicide • Accused must prove: • They had a belief that it was necessary to act to defend themselves or another person from serious harm or injury • They had reasonable grounds for this belief (court may consider the plausibility of the belief including any past history between accused and victim) Accused was able to prove that they believed it is was necessary to act to defend themselves or someone else but the court finds that this belief was not reasonable

Defences to homicide continued… Duress Sudden or extraordinary emergency • A person acts under duress when they reasonably believe that: • A threat of harm will be carried out unless the person commits a crime • Committing a crime is the only reasonable way of avoiding the threatened harm • Their conduct is reasonable response to the threat made • A person reasonably believes that: • There is a sudden or emergency situation • Their actions are the only reasonable way of dealing with the emergency situation • Their conduct is a reasonable response to the emergency situation

Defences to homicide continued… Mental impairment Automatism • Replaced common-law defence of insanity • Cases where the person was suffering a mental impairment at the time of the crime and as a result the person: • Did not know what they were doing because they had little understanding of the nature and quality of their actions • Did not know the conduct was wrong or could not reason or think about their conduct like an ordinary person • Must prove the defence ‘on the balance of probabilities’ • Must be shown that the act was: • Involuntary: done by muscles without any control of the mind • Done by a person who was not conscious of what they were doing

Defences to homicide continued… Intoxication Accident If the person voluntarily gets drunk their intoxication cannot be used as an excuse If the intoxication is involuntary then the court may consider the impact of the intoxication on a person’s intention to commit a crime Accused who is claiming that the death was an accident is saying that they did not possess a guilty mind (mensrea) If mensrea did not exist, the accused cannot be found guilty of a crime

Crimes against the person and related defences Read Murder and Malice Aforethought Answer questions Learning Activity 2.3 questions 1-4 Read Causation, Attempted murder, Manslaughter, Defensive Homicide and Infanticide. Learning Activity 2.5 question 1

Area of Study 2: Criminal Law