It's definitely not good character because it's a mandatory sentence regardless of whether they were of good character or not (that's the whole purpose of a mandatory sentence). You're right about the option of actus reus and men's rea being wrong which leaves lobby parliament to repeal the law which I think is the more correct answer rather than argue the law is unconstitutional because logically if the law was unconstitutional it wouldn't have existed in the Australian legal system for so long
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Section I: Multiple Choice (1 Viewer)
- Thread starter Rafy
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What was the letter for the full defence answer? A/B/C/D?
I got this as well The question was what would directly help Kevin. You can't disprove actus reus because of the CCTV cameras. The good character reference would be useless as the judge has to impose the mandatory minimum sentence. Also, repealing the law wouldn't do anything because the law can't be retrospective.
The only help for Kevin is arguing its unconstitutional (taking it to the High Court), which has the possibility of resulting in the case being dropped. (This actually happened with regard to mandatory minimums regarding people smugglers, however they lost the case when going to the high court. )
What did you guys get for the question which was something along the lines of what best protects international human rights in Australia? I was tossing up between common law and the Australia constitution, settled on the constitution because the whole "international" thing concerns external affairs powers, the framework through which HR are recognised / sep & division of powers, and some explicit and implied rights. Could be common law though, seriously reconsidering now. Won't be the first of the multis I got wrong.
geordienufc1
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I understand that logic, though I think the question was too ambiguous.
My rationale for answering "repeal the law" was that, as per the scenario, Kevin had been convicted but not yet sentenced. Whilst it is true that the law probably wouldn't be able to apply retrospectively, if, under this scenario, it was able to be repealed before the sentencing occurred, then it would definitely help him.
The issue would obviously be that this process would probably take too long to directly help Kevin, I understand that. But given that they specified "convicted, awaiting sentencing", I thought it was plausible in the implausible world that is hypotheticals and multi-choice.
My rationale for answering "repeal the law" was that, as per the scenario, Kevin had been convicted but not yet sentenced. Whilst it is true that the law probably wouldn't be able to apply retrospectively, if, under this scenario, it was able to be repealed before the sentencing occurred, then it would definitely help him.
The issue would obviously be that this process would probably take too long to directly help Kevin, I understand that. But given that they specified "convicted, awaiting sentencing", I thought it was plausible in the implausible world that is hypotheticals and multi-choice.
MasterEnglish
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Hey guys. In regards to the constitutional law one, im pretty sure its that as its happend in the past when they tried to amend the anti-discriminatoon act but then they said it was against the constitution.
Moreover, for the judge charge negotiation deal. Doesn't the judge have supreme power and thus he is able to change the prosecutors plea if it doesnt upheld the concept of justice?.
Moreover, for the judge charge negotiation deal. Doesn't the judge have supreme power and thus he is able to change the prosecutors plea if it doesnt upheld the concept of justice?.
I might be wrong, but I said he or she must accept it. Charge negotiation pertains to the prosecution's stance and the judge is independent of the prosecution. They therefore cannot reject it because it happens prior to sentencing and is outside of court. That rules out consideration as well.
HecticSandWitch
2007 fuccboi hustler king
There have been cases of murder where it has been a judge only trial, see the gittany case.
HecticSandWitch
2007 fuccboi hustler king
Found this online in regards to plea deals:
Judicial Discretion in Evaluating Plea Deals
A judge has discretion to decide whether to accept or reject a plea agreement. To make that decision, the judge evaluates whether the punishment is appropriate in light of the seriousness of the charges, the defendant’s character, and the defendant’s prior criminal record.
Other factors to consider include:
the underlying facts of the case (or factual basis for the plea)
the interests of the victim (although a court can accept or reject a plea agreement without the victim’s approval), and
the interests of the general public.
Note this is for the american system. I could find NOTHING on the Australian system. Whether or not the consideration answer was correct, it is pretty pathetic from the examination committee to test something that is not in any textbooks and is impossible to find online.
Judicial Discretion in Evaluating Plea Deals
A judge has discretion to decide whether to accept or reject a plea agreement. To make that decision, the judge evaluates whether the punishment is appropriate in light of the seriousness of the charges, the defendant’s character, and the defendant’s prior criminal record.
Other factors to consider include:
the underlying facts of the case (or factual basis for the plea)
the interests of the victim (although a court can accept or reject a plea agreement without the victim’s approval), and
the interests of the general public.
Note this is for the american system. I could find NOTHING on the Australian system. Whether or not the consideration answer was correct, it is pretty pathetic from the examination committee to test something that is not in any textbooks and is impossible to find online.
HecticSandWitch
2007 fuccboi hustler king
Found this from the Judicial Commision of NSW
[11-545] Setting aside a guilty plea
The court in Johnston v R [2009] NSWCCA 82 at [9] adopted the following passage from Hura v R (2001) 121 A Crim R 472 at [32] which set out the circumstances where a court will set aside a guilty plea:
“
where the appellant ‘did not appreciate the nature of the charge to which the plea was entered’: Ferrer-Esis (1991) 55 A Crim R 231 at 233.
where the plea was not ‘a free and voluntary confession’: Chiron (at 220 D-E).
the ‘plea was not really attributable to a genuine consciousness of guilt’: Murphy [1965] VR 187 at 191.
where there was ‘mistake or other circumstances affecting the integrity of the plea as an admission of guilt’: Sagiv (1986) 22 A Crim R 73 at 80.
where the ‘plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty … some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt’: Cincotta (Court of Criminal Appeal, NSW, No 60472 of 1995, 1 November 1995).
the ‘plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt’: Maxwell at 511; 186-187.
if ‘the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt’: Davies (1993) 19 MVR 481.”
So it seems like the judge must take all these factors into consideration before accepting the plea deal.
[11-545] Setting aside a guilty plea
The court in Johnston v R [2009] NSWCCA 82 at [9] adopted the following passage from Hura v R (2001) 121 A Crim R 472 at [32] which set out the circumstances where a court will set aside a guilty plea:
“
where the appellant ‘did not appreciate the nature of the charge to which the plea was entered’: Ferrer-Esis (1991) 55 A Crim R 231 at 233.
where the plea was not ‘a free and voluntary confession’: Chiron (at 220 D-E).
the ‘plea was not really attributable to a genuine consciousness of guilt’: Murphy [1965] VR 187 at 191.
where there was ‘mistake or other circumstances affecting the integrity of the plea as an admission of guilt’: Sagiv (1986) 22 A Crim R 73 at 80.
where the ‘plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty … some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt’: Cincotta (Court of Criminal Appeal, NSW, No 60472 of 1995, 1 November 1995).
the ‘plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt’: Maxwell at 511; 186-187.
if ‘the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt’: Davies (1993) 19 MVR 481.”
So it seems like the judge must take all these factors into consideration before accepting the plea deal.
FightingSmile64
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Guys i am panicking. You know how the short answers are in the legal hdc booklet? I signed on the confirmation sheet that i filled out the booklet etc. However after i left i rememberd that it was just sitting outside of my pile of other essays etc however it was right next to it on the table facing upright. Should i be worried? Do they check....
MasterEnglish
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Last thing you should do is be worried. Its the supervisors job to arrange all the papers in correct order as they stay after the exam to check every individuals exam paper.
Worst comes to worst... just notify them. Their pretty understanding
Every single piece of response must be matched to a student, and there must be a booklet found for everything students marked on the confirmation sheet.
Relax.
A retrospective law that creates a criminal liability is equivalent to a bill of attainder, which is prohibited by the separation of powers.
Other retrospective laws have not been seen to be in breach of separation of powers, although I don't think this has been extensively tested.
In this case, lobbying for the law to be repealed is plausible. I see it as being a toss between high court appeal (but the high court has already rejected challenges on mandatory minimum sentencing in a couple of cases, no?) and repeal.
You can request a judge only trial if you wish and it may be approved by the court. The constitution grants you the right to be heard in front of a jury, but if you certainly can request a judge only trial.
Self defense is a complete defense for manslaughter too. This is the correct answer.
Cleverusername5321
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:|
post the exam paper and i might be able to tell you.
post the exam paper and i might be able to tell you.
we don't have it... You're not allowed to take it out of the room.
Cleverusername5321
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Hang on. Isn't manslaughter = unlawful and dangerous and/or criminal negligence? How would you argue self-defence?
Idk, I could be wrong. I need to look at manslaughter again.
Right. Voluntary manslaughter = reduced to manslaughter from murder by a partial defence (extreme provocation, substantial impairment, excessive self-defence and infanticide). Involuntary manslaughter = manslaughter by an unlawful and dangerous act, or manslaughter by criminal negligence.
Unlawful and dangerous act = can't use self-defence - Cornelissen (2004) NSWCCA 449 (An act performed in self-defence is not an unlawful act)
Criminal negligence = that's like where your conduct falls so short of what the reasonable person (someone else in the community) would have done as to merit criminal punishment. It's where you don't realise what you're doing, I don't think that you can really claim self-defence. Criminal negligence could be made out if, for example, you ran over a child with a tractor not realising that the child was hiding in the bushes (not that I remember whether it was actually made out in the case with those facts).
My point is that manslaughter can be voluntary and involuntary. If manslaughter is brought up without first bringing up murder (and partial defences), it either has to be an unlawful and dangerous act (or omission) or criminal negligence (ie involuntary). If the prosecution allege that there was an unlawful and dangerous act, the defendant can't allege that he/she acted in self-defence because self-defence is lawful. If the prosecution allege that there was criminal negligence, I don't see how the defendant can claim self-defence because he/she would have acted without realising what was going on (otherwise the prosecution would probably bring up a different charge of homicide).
None of that is in the legal studies syllabus, and you could be right... It's 3 AM and I'm only posting this because I need to procrastinate. In the past legal studies exams have been blatantly outdated/wrong. I wouldn't worry. Even if I'm right it's only 1 question.
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The only thing that made me choose that the judge must accept the plea bargaining is the case of R v Alchin (2008). Here's a bit of it from my notes:
R v Alchin (2008) highlighted how charge negotiation may create an imbalance between the rights of the victim and the accused after the accused was charged with breaching his AVO and choking his girlfriend when she hit her head and cracked her skull. The magistrate hearing the case was willing to give him a serious sentence but the DPP did a plea negotiation deal to lower the charge and the magistrate was then forced to only give a maximum of 2 years non-parole period as opposed to getting up to 20 years in prison.