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What is a crime?

Criminal law

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What are we going to learn about?

In this part you will learn about:

• the principles of criminal liability, crimes and defences

• the criminal investigation process and criminal sanctions

• trends in crime, sentencing and recidivism

• impacts of crime and victims’ compensation.

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So what is a crime?

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• What constitutes a crime is determined by what the law-makers (parliament and the courts) of the day declare it to be.

• A crime is an act or omission (failure to act) that is regarded as unacceptable according to the law at the time and is punishable by the state authorities.

• An act is deemed a crime because our community has declared that the behaviour is illegal.

• The concept of what a crime is can change over time and can vary between different cultures.

• Criminal law is therefore concerned with criminal behaviour which is against the law and harmful to society, and sets out the sanction (punishment) which will be imposed on those who breach the laws.

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Features of crime

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There are four key elements:

• Crimes are against the criminal law of the state

• Crimes are against morality

• Crimes are harmful to society

• Crimes are punishable

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1. Crimes are against the criminal law of the state

• Against existing law• Criminal law sets standard of

behaviour• reflects the values of society

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• Our criminal laws reflect our beliefs on what is morally wrong.

• E.g. Murder, Child abuse, sexual assault etc.

2. Crimes are against morality

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3. Crimes are harmful to society

• Certain type of behaviour is seen as harmful• Usually involves a victim• Harm can be physical, psychological, emotional,

financial

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4.Crimes are punishable by the state

• Investigated by the police• Punished through the courts

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Sources of Criminal Law

• Common Law – Laws made by the courts though court decisions on a matter currently before the court

• Common Law – Initially derived from English Courts as we follow the Westminister System

• Legislation• Parliament & Delegated Authorities

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Elements of a crime

• ACTUS REUS (Guilty Act

• Mens Rea (Guilty Mind)

• In order to be found guilty of any crime (Except Strict Liabiity Crimes) the two elements of Actus Reus and Mens Rea need to be proved by the prosecution.

• Strict Liability Crimes – Some crimes do not require the prosecution to prove Mens Rea. Traffic offences are an example. Do not have to prove that you intended to speed (Guilty Mind) but just that you were speeding.

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Age of criminal responsibility

• Child under 10 cannot be charged with a criminal offence. Prosecution unable to prove Mens Rea.

• Child under 10 is considered not to know or understand the consequences of their actions

• Child between 10 and 14. Can be charged if the prosecution can prove that the child intended to commit the crime with ‘mischievous discretion’. i.e., knew what they were doing was wrong.

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Presumption of innocence

• The overriding principle is that ‘a person is considered innocent until proven guilty’.

• Unless it is a reverse onus offence such as ‘possession of property suspected as being proceeds of crime’ a person charged is not required to prove their guilt or innocence.

• The prosecution is required to prove the guilt of an individual charged

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Burden and Standard of proof

Type of crime Burden Standard

Criminal Prosecution Beyond reasonable doubt (There cannot be any doubt)

Civil Plaintiff Balance of probability (More probable than not)

Not guilty does not mean innocent

Refers only to the fact that the prosecution failed to prove the crime to the relevant standard

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Principal Offender/Abettor

• Principal offender is a person who actually commits the crime. I.e., picks up the Mars Bar and takes it from the milk bar without paying for it.

• An ‘Abettor’ is a person who assists the person to commit the crime. i.e., a person looking out for the store owner or someone else who may catch you steeling that mars bar.

• An Abettor is a person who (a) Aids - (Helps) (b) Abets – (Encourages), (c) Counsels – (Advises), (d) – Procures (provides assistance with organisation)

• https://www.youtube.com/watch?v=OINamP2-Izk

Judy Moran Guilty of Murder

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Accessory to a crime

• An accessory is a person who knows or believes the principal offender to be guilty of a serious indictable offence, yet impedes their apprehension, prosecution, conviction or punishment, without a lawful or reasonable excuse. A serious indictable offence is a crime that carries a punishment of five years or more in prison.

• http://www.bendigoadvertiser.com.au/story/2504611/pair-plead-not-guilty-to-murder/

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Task:

• Complete questions 1 – 11 on Page 43 of student text.