Legal Studies Exam Prep
Norms, Rules, Laws
Norms- Socially accepted habits or customs (e.g waiting in queues)
Rules- regulate our lives in a more formal manner (e.g school rules)
Law- Laws are made from the state and have punishment followed if the rule is broken by an individual
Purposes of Law
Protection of the person against physical harm
protection of the right to private property
Smooth operation of everyday society
promotion of the public good
fairness and equal treatment
protection of the vulnerable
provision of civil liberates against the power of the state (Your right to freedom)
a means to settle disputes
Features of an Effective Law
The law must be accepted by the people
The law should be clear.
The law should be able to adapt to change.
The law should be consistent and stable. (Apply equally to all)
The law should be capable of being enforced.
The rule of Law
Just and Equitable
Just- legally right, conforming to that which is lawful or fair that what is fair and proper in the (or all) circumstances. (e.g everyone gets a lollypop)
Equitable- even an impartial; balance between the rule of law, and the rights and freedoms of individuals and society; impartial and fair outcome or result where the statute law is silent e.g. remedies in civil issues (Kids that don't try get a lollypop)
Equality before the law
Checks and Balances on the use of power
Rights of the accused and victims
Presumption of Innocence
Independence of the Judiciary
Rights to assemble
Freedom of Speech
Access to Justice
Knowing the Law
Separation of Powers
Legislature
-Makes laws/Amends laws
-MP's/Senators
P.M, GG
Executive
Puts the laws into action
Pm, GG and Ministers
Judiciary
Interprets the wants of the law
Judges, High Court
Division of Powers
Parliament
Federal Parliament Laws relating to all of country
Exclusive Powers
State
Residual Powers
Pass laws on areas that is not acknowledged in the Australia Constitution
Local
Pass laws and Regulation that apply to local areas (roads)
Powers
Exclusive Powers: the powers given to the federal government by the constitution such as defence and immigration.
Residual Powers
The legislature powers not covered by section 51 of the constitution, which remain with states.
Concurrent Powers
Federal and State Powers. Highlights if there is a disagreement between state and federal. Federal always wins.
Statue Law
The acts of parliament or legislation
Parliaments create Statue Law
Statue will always override common law
It is introduced as a bill and if passed becomes an act
Law
Common Law
Constitutional Law
Courts and Judges made law.
Constitutions
Doctrine of Precedent
Is the principle of common law that requires judges to follow rulings of judges in high courts or on previous cases where issues and facts were similar.
This precedent ensures that all all similar cases are treated the same.
Precedent Defintions
Ratio Decideni
The reason (The reason for deciding) of the earlier court decision is precedent.
Binding Precedent
Obiter Dicta
("something said in passing, e.g BTW) A comment, suggestion or observation made by a judge in an opinion that is not necessary to resolve the case.
Persuasive Precedent
Criminal Law
Criminal Definition
Laws that are define by legislation, enforced by the police and prosecuted by the state.
Deal with offences against the person, such as murder, attempted murder, assault and sexual assault.
Deals with offences against property
Strong range of sanctions or punishments ranging from fines or imprisonments.
Criminal Justice Systems
Adversarial
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)
Inquisitorial
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
Standard VS Onus
Onus of Proof
Standard of proof
Who must prove it! The obligation of proving that something is true in the law of court
How much they need to prove! The degree of evidence necessary to establish proof
Court Case
Prosecution (Didn't commit the crime) Have to prove the defendant is guilty
Standard Proof
beyond reasonable doubt (guilt) Defence does have to prove anything
Civil
Civil Law
Protecting the rights and property of individuals that are not necessarily protected by criminal laws
Is usually initiated by (Plaintiff) who takes legal action against those who have claimed to wrong them.
Civil Court Case
Onus of Proof = Plaintiff
Standard of Proof = Beyond Reasonable Doubt. The decision maker must be convinced which is more likely
Customary Laws
Our laws come from British laws were as Indigenous have different laws
Relates to the systems and practices amongst Aboriginal Australians which have developed over time from accepted moral norms in Aboriginal Communities
Skills
How to do legal Alternatives?
Repeal Laws (Get rid of them)
Amend Laws (Change Them)
Keep the laws the same
Introduce a Bill
Conduct sn Inquiry
Criminal Investigation Process
Criminal Behaviour
Criminal Conduct = Behaviour that the law deems to be wrongful
Australia
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
Constitutes Criminal Behaviour
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
Actus and Mens
Actus Reus
Is the action that person takes to perform the criminal act, this is the physical action behind the crime.
Mens Rea
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
Common Stakeholders
The victim-person who has suffered a loss (physical, emotional or economic)
A witness person who has seen or heard the information relevant to an alleged crime
Asuspect-person who is thought to have committed a crime and is being investigated.
The accused person charged and on trial for crime
The offender-person who has broken the law
Criminal Stuff
Alleged Crime Situation- unproven accusation of a crime is reported to the police for investigation
Evidence- Facts or information indicating whether a belief or proposition is true or valid
Elements of an offence- all the facts necessary, to prove the offence beyond reasonable doubt
Indictable and Summary Offences
Indictable Offences
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
Summary Offences
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
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)
Types of Crime
Homocide
Killed (Directly or Indirectly)
Another Person
Unlawfully (no excuse, defence, justification or authorisation for it)
Murder
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
Manslaughter
Unlawful killing of another in circumstances that does not amount to murder (without intent)
Can also arise when there is criminal negligence
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
Arrest Warrant- authorises the police officer to arrest a particular person
Offences
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
Magistrate (No Jury)
Causation
Is the link between the behaviour of the accused and the result. The legal question is: 'but for' the actins of the accused would the harm have occurred? If the answer is yea then that means the result or harm would have occurred anyway- so there's no legal ability. But if the answer is no, then it means that the actions of the accused was the factual case of the harm, injury or result.
Causation is sometimes referred to as the 3rd element of crime
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
Evidence
Police and Evidence
Legal Oddities: Evidence found at a crime scene is usually contaminated and even unusable due to a number of uncontrolled variables, as well as criminals who try to conceal their work.
Luminol
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.
4 Types of Evidence
Oral
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
Fingerprint Evidence
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.
Crime Scene Evidence
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
DNA Evidence
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
PPRA
Definition
Police Powers and Possibilities
Power of Responsibilities of police, suspect, accused persons and victims
The police powers and responsibilities act (2000) (QLD) gives special powers to the police
The role of the police play in the criminal investigation processes is to gather evidence using their powers.
The police then need to determine whether the evidence is sufficient to charge somebody with an offence
The evidence helps support the 'elements of the crime'.
Discretionary Police Powers
Discretionary powers are given to police so that they may use their own discretion in matters such as arrest, using force and other dealings with people
Reasonable suspicion: Up to interpretation
Police Powers
To investigate alleged crimes
Searching of a property (need a warrant)
Searching a person
Searching motor vehicles
Taking DNA samples
Rights after Detention
Arresting and detaining persons
Carrying out Forensic Procedures
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
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
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.
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
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
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
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
Regulatory Offences
are less serious than criminal offences and max penalty is a fine.
Warrant- allows for the police to arrest a particular person and bring them to court/custody.
Summons- A formally written document issued by the court to the particular person after a criminal or civil complaint has been issued. The documents summons them to court on a particular date.