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

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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.