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Legal Studies Exam Prep - Coggle Diagram

- - - - Binding Precedent
  - - - Persuasive Precedent
- - - - Involves two parties where each side presents their case (Before an impartial person or a group of people).
      - Ensure Rules are followed and decides what evidence is allowed
      - Judge listens and makes decisions on guilt (Criminal) or a version of events to be true (Civil)
      - Australia
    - - Trial persuaded over by a judge who question the accused, gather evidence and then decide on the truth
      - Applies the law and facts of the case
      - Decides the Verdict
      - No Jury
      - Little use of Doctrine of Precedent
  - - - beyond reasonable doubt (guilt) Defence does have to prove anything
  - - - Criminal Conduct = Behaviour that the law deems to be wrongful
      - Criminal Law sets out the rules to be applied and the procedures and punishments to deal with criminal conduct
      - For an act or omission to be criminal a guilty mind is required
      - As well as causing harm to an individual, a crime is also regarded as harming the society as a whole, that's why its called an offence. ra
    - - Universal Acts e.g Murder
      - Cultural Acts e.g drinking alcohol in Islamic countries
      - Changes and values and beliefs in a society changes what conduct is considered criminal e.g. one punch
  - - - Is the action that person takes to perform the criminal act, this is the physical action behind the crime.
    - - Criminal intent is the conscious decision someone makes to deliberately engage in an unlawful or negligent act, or to harm someone else
      - A persons mental state and awareness of the fact that their conduct is criminal
      - Intention: a clear, malicious or wilful intention to commit the crime. This is this highest and usually the most difficult levels of mens rea for the prosecution to prove.
      - Recklessness: an intermediate level of intent. This means that the accused was aware that their action could lead to a crime being committed, but chose to take the risk anyway. (Manslaughter or Murder)
      - Criminal Negligence: where the accused fails to foresee the risk where they should have and so allows the avoidable danger to occur, usually resulting in harm to the death of another person that the accused has a duty to protect
  - - - If the police in a criminal investigation, are satisfied that all the facts that together make up the elements of an offence have occurred and are provable against a person, they will charge that person with an offence
      - Parties of an offence
        
        Every person who actually does the act (the principal)
        
        Every person who does an act for the purpose of helping or assisting another person to commit the offence (principles in second degree)
        
        Any person who encourages or counsel any other person to commit the offence (accessory before the fact)
  - - - Crimes: Murder, assault and rape
      - Misdemeanours- a minor wrong doing
      - more serious criminal offence that requires a committal hearing and trial (offenders cannot be prosecuted or convicted except on indictment
      - Arrest Warrant- authorises the police officer to arrest a particular person
    - - A crime that is not inherently wrong, but that is illegal because it is prohibited by a legislation e.g. exceeding the speed limit
      - Fine is the max penalty
      - Summons - a written order, issued by the court after a criminal or civil complaint has been filed, that requires the person named in the complaint to appear in court
      - Magistrate (No Jury)
    - - are less serious than criminal offences and max penalty is a fine.
  - - - Killed (Directly or Indirectly)
      - Another Person
      - Unlawfully (no excuse, defence, justification or authorisation for it)
    - - Killed
      - Another Person
      - Unlawfully
      - An intention to kill or do grievous bodily harm
      - In the prosecution of an unlawful purpose, the accused did an act which was likely to endanger a life, and the victim died as a result of the act
        
        Felony Murder
    - - Unlawful killing of another in circumstances that does not amount to murder (without intent)
      - Can also arise when there is criminal negligence
    - - Offences against the person
        
        Stalking
        
        Grievous Bodily Harm
        
        Torture
        
        Unlawful Wounding
      - Offences against a property
        
        Stealing/Theft- an intent to permanently deprive the owner of that thing
        
        Arson
        
        Looting
        
        Break and entering
        
        Burglary
        
        Fraud
      - Offences
        
        Gun Possession (weapon)
        
        Masks
        
        Intent to Harm
        
        Illegal Activity
        
        Breaking of Property
        
        Breaking and Entering
        
        Murder (Intent to)
        
        Hostage
        
        Physical Assualt
- - - - A chemical compound, glows blue when it comes into contact with the haemoglobin, even when the area has been washed before.
      - However, Luminol has a few negative features- the glow lasts only 30 seconds, the chemical reaction can destroy the evidence and it also reacts to the presence of copper, urine and horse radish.
  - - - Most common form of evidence police collect
      - Statements may come from victims of crimes, witnesses and offenders
      - Victim usually first to complain to police. Police will take statement. The police will listen to the statements, reduce it to writing, and have the witnesses read it and sign it as true.
      - Police will collect witnesses statements in the same way.
      - Police will then approach the alleged offender and ask them to make a statement.
      - Right to Silence
        
        The alleged offender does not have to answer any questions asked by the police.
        
        The fact that the alleged offender does answer any questions cannot be raised at trial
        
        The police are required to tell a suspect they don't have to speak
      - Confessions
        
        A confession is the best type of oral evidence that can be collected by the police.
        
        Confessions may be admitted directly to the police
        
        Undercover police recording confession of the offender
        
        Ordinary citizens, at the request of the police, recording confessions of the offender
    - - Still regarded as extremely strong evidence
      - Crime scenes needed to be treated with care
      - A special provision (PPRA) allows police to remove objects from a crime scene that may contain a fingerprint if there a chance is the object could be damaged or interfered with.
      - A persons fingerprint does not change over time.
    - - Reasonable suspects and crime scene
      - Police can stop people entering a building
      - Police may put barricades or tapes around a particular area
      - Unauthorised entry is prohibited
      - This may interfere with peoples property rights
      - After establishing the crime scene the police must apply to a judge for a crime scene warrant
      - Police can open anything at the crime scene that is locked
      - They can use electricity
      - They can dig up anything
      - They can remove a wall or ceiling linings or floors of a building
      - They can dismantle a motor vehicle
      - They can seize anything that may provide evidence of the commission of an offence
      - Evidence found is bagged and sent off to scientific laboratories for examination
    - - A persons DNA is unique
      - DNA can help identify the identity of the victim and can establish a suspect was present at the crime scene.
      - Any part of the body can provide DNA evidence
      - DNA can be used to prove that a person did NOT commit a crime and that someone else did. DNA tech has been used to pardon many people.
      - Risks of DNA
        
        Poor quality samples
        
        handling error
        
        Contamination
        
        analysis error
        
        kinship
        
        tempering
        
        coincidence
- - - - Searching of a property (need a warrant)
        
        Police must obtain permission of owner to enter and search a property
        
        If permission refused ---> Search Warrant
        
        Includes the power to search anyone at the place who police suspect has been involved.
        
        Must give copy to occupier to leave in a conspicuous place
        
        Without a search warrant
        
        Really only relates to where the police reasonably suspectsthe evidence will be lost i.e concealed or destroyed, unless the place is immediately entered and searched.
        
        Prevent domestic violence
      - Searching a person
        
        Power of police to search people without a warrant set out in s30 of PPRA
        
        Able to use this power when a police officer reasonably suspects that a person has in their possesion:
        
        Some form of weapon
        
        Unlawful dangerous drug
        
        Stolen Property
        
        Some type of house breaking implement
        
        Something a person intends to use to cause harm to themselves or another
        
        Evidence that someone has committed on a indictable offence
        
        Provisions of PPRA
        
        Limiting embarrassment
        
        Respecting dignity
        
        Ensuring search is conducted by a same sex officer
        
        Conducting search in a way that provides reasonable privacy
        
        If clothing is seized, leaving reasonable appropriate clothing to wear
      - Searching motor vehicles
        
        Can search without a warrant if reasonable suspicion
        
        A weapon
        
        Dangerous driving
        
        Tools to break into house or cars
        
        Something that you plan to use to hurt yourself.
      - Taking DNA samples
        
        Arrange for a doctor or nurse to take DNA sample
        
        Police may be authorised with right training
        
        Sample: Police station, hospital, prison, detention centre
        
        Can only be taken by mouth swab or collection of hair
      - Rights after Detention
        
        Time limits for questioning
        
        Person able to communicate with lawyer, relative or friend
        
        Special provisions for questioning of Aboriginal and Torres Strait Islander people
        
        Special provisions for questioning children, persons with impaired capacity, intoxcated persons
        
        Requirement to caution personas
        
        Right to be electronically recorded
      - Arresting and detaining persons
        
        If a warrant has been issued for the arrest of someone then it is lawful for police to act under the warrant and arrest the person.
        
        Arrest can include- to apprehend, to take to custody, detain, remove to another place for examination and treatment.
        
        Most common form of arrest warrant issued-when a person fails to turn up to court in breach of bail conditions
      - Carrying out Forensic Procedures
        
        PPRA sets out the circumstances in which these can be carried out and have qualified (doctors) can carry out these professions.
        
        Must have a consent of a person
        
        If no consent---> obtain a forensic procedure order from a magistrate