4 the principles of justice in a criminal case Flashcards
Victoria Legal Aid (VLA)
a government agency that provides free legal advice to all members of the community and low-cost or no-cost legal representation to some people who cannot afford a lawyer
The role of Victoria Legal Aid
- provide legal aid in most effective, economical & efficient manner
- manage resources to make legal aid available at a reasonable cost
- provide community w improved access to justice & legal remedies
- pursue innovative means to minimise need for individual legal services
Types of legal aid
- Free legal information
- Free legal advice
- Free duty lawyer services
- Grants of legal assistance (getting
a lawyer to run the case)
Free legal information
VLA’s website has free publications and resources, info abt criminal cases & a public law library that includes case law and other legal materials
- Legal info available over the phone
Free legal advice
Advice is provided in person, by video conference or over the phone
Free duty lawyer services
Duty lawyer: lawyer in court on a particular day & can help people who are in court for a hearing on that day
- Give fact sheets abt what happens in court, offer legal advice, or represent an accused in court on that day
- Only available in the Magistrates’/ Children’s Court; they are not available for indictable offence trials.
Grants of legal assistance
- Legal advice
- Helping the accused resolve matters in dispute
- Preparing legal documents
- Representing the accused in court
community legal centre (CLC)
an independent organisation that provides free legal services to people who are unable to pay for those services
- generalist CLCs
- specialist CLCs
generalist CLC
CLC that provides a broad range of legal services to people in a particular geographical area
specialist CLC
CLC that focuses on a particular group of people or area of law
Role of CLCs
- Basic legal information
- Initial legal advice
- Duty lawyer assistance
- Legal casework
Basic legal information
CLCs provide basic legal information on a day-to-day basis
- Some info online
Initial legal advice
- Legal advice + info (e.g. preliminary assistance, help with writing short letters & completing forms)
- Free legal advice service that allows people to visit the CLC w/o an appointment & get legal info + advice
- Phone advice is also available
Duty lawyer assistance
Duty lawyers provide advice or representation for urgent matters that will be completed in one day
Legal casework
- Sometimes CLC takes on criminal matters. This involves legal representation and assistance and will require ongoing legal services
- Each CLC has its own eligibility requirements
- Many DON’T offer representation & assistance for indictable
THE PURPOSES OF COMMITTAL
PROCEEDINGS
plea negotiations
(in criminal cases) pre-trial discussions b/w prosecution & accused w aim to resolve case by agreeing on an outcome to the criminal charges laid (AKA charge negotiations)
Purposes of plea negotiations
- Ensure certainty of the outcome of a criminal case
- Save on costs, time & resources
- Prompt resolution to a criminal case w/o the stress, trauma & inconvenience of a criminal trial
Appropriateness of plea negotiations
Strengths of plea negotiations
Weaknesses of plea negotiations
Jurisdiction
lawful authority of a dispute resolution body to decide legal cases
- original jurisdiction
- appellate jurisdiction
Summary of the criminal jurisdiction of Victorian courts
Magistrates’ Court
- Summary & indictable heard summarily
- Committal proceedings, bail applications & warrant applications
- NO appellate jurisdiction
County Court
- Indictable except murder, attempted murder, certain conspiracies, corporate offences
- Appeals from the Magistrates’ on conviction or sentence
Supreme Court (Trial Division)
- Most serious indictable
- Appeals from the Magistrates’ on points of law
Supreme Court (Court of Appeal)
- NO original jurisdiction
- Appeals from the County or Supreme (Trial Division) & Magistrates’ where Chief Magistrate decided the case
Reasons for a Court Hierarchy
- Specialisation of courts
- Appeals
Specialisation of courts
areas of expertise that courts develop and that the personnel have expert knowledge in
Appeals
a party who is dissatisfied with a decision can take the matter to a higher court to challenge it
- appealing on a question of law
- appealing a conviction (by offender)
- appealing b/c of severity of sanction imposed
Responsibilities of the legal practitioners
- Be prepared
- Comply with their duty to the court
- Act in the best interests of their client
- Other responsibilities
why do we need legal practitioners?
any person should have an adequate opportunity to test the evidence put against them
reasons why we need lawyers
- self-represented lack skill & experience to navigate the justice system
- self-represented accused may struggle to remain objective during the case
- for traumatic or difficult cases, avoid accused directly questioning witnesses
- court & judges can assist to some extent but CANNOT advocate on their behalf
court order for legal representation
Court must be statisfied that the accused: (burden of proof on accused)
- UNABLE to recieve a fair trial w/o legal rep
- CANNOT afford to pay for their own lawyer
Ensures a fair trial, avoid a successful appeal & avoid possible acquittal
strengths of legal practitioners
- Expertise helps accused navigate the criminal justice system
- Objective in ability to make decisions in the criminal case (self-represented people DON’T have objectivity)
- Avoid delays that may arise w/ self-represented accused
weaknesses in legal practitioners
- Not all have same lvl of experience & skills (impact quality of legal service)
- Not everyone can afford legal rep (DON’T have skills, experience & objectivity)
- Legal rep alone may NOT help the accused
factors that impact PoJs
- cost (e.g. legal rep)
- time (e.g. court delays)
- cultural differences (e.g. culture or language barriers)
costs
- main costs = lawyer
- greatest financial impact = accused
- right to legal rep but some CAN’T afford it
- if cannot afford it, may apply to VLA, CLC or pro bono lawyer (NO guarantee)
measures to address costs
- free legal aid thru VLA & CLC (A)
- increasing service gap means more people who need low-cost legal aid AREN’T receiving help due to financial constraints (A) (E)
- courts & judges adjust their processes to help self-represented parties (F)
- use of committal proceedings & plea negotiations to filter out weaker cases (F)
time
- gathering evidence, locating + interviewing witnesses, determining what happened & deciding charges
- complicated case = longer to be ready for trial
- County Court cases take b/w 14 - 16 months to be ready for trial
- COVID-19 caused a backlog of cases waiting to be heard
measures to address delays
- use of plea negotiations; early guilty plea (F)
- during COVID-19, the Victorian Government introduced judge-alone trials (if the accused consented) (F) (A)
- investment in digital technology allows for
remote hearings (A) (E)
cultural differences for First Nations People
-
Language barriers - Some words used by Indigenous
people have diff meanings -
Direct questioning - Polite to settle group
agreement thru discussion & storytelling - Body language - Direct eye contact is disrespectful
-
Cultural taboos - Taboo to mention names of
deceased peoples, or gender-based knowledge - Lack of understanding of court proceedings
cultural differences for cultural/language barriers
- Many Australians have diff first language that ISN’T English
- Affects understanding documents, following court procedures & legal terminology
- Victims may struggle to understand their rights or questions asked
- Right to have the assistance of an interpreter if they CANNOT understand or speak English (E)
measures to address cultural difference
- Koori Court limits difficulties faced by First Nations people (E) (A)
- Free interpreters help accused understand the processes (E)
- Access to an interpreter vary from court to court (A) (E)
- Info provided both online & in-person from VLA & CLCs are provided in many diff languages (A) (E)
Key personnel
- Judge/Magistrate
- Jury
- Parties
Judge/Magistrate & their roles
appointed to conduct trials and resolve legal disputes in court
- act impartially
- manage the trial or hearing
- decide or oversee the outcome of the case
- sentence an offender
Act impartially
- NOT be biased
- in the case they CANNOT be impartial, they should remove themselves to avoid unfairness
Manage the trial or hearing
- control & supervise the case
- ensure correct court procedure is followed (make decisions or adjust trial process to ensure EQUALITY)
Decide or oversee the outcome of the case
- Magistrate decide verdict (listen to evidence, decide on guilt & refer them for sentencing)
- Judge assist jury to understand their role & facts of the case to make an educated decision
Sentence an offender
- if accused pleads or found guilty —> plea hearing
- judge or magistrate then hands down sentence
- judges hear from offender & victims before deciding on sanction
Strengths of judge and magistrate
- impartial - cannot overly interfere in trial or help either party to argue (no disadvantage or advantage)
- assist self-represented accused & adjust trial processes to help vulnerable people
Weaknesses of judge and magistrate
- Lack of diversity - may impact how comfortable accused feels & confidence in the administration of justice
- CAN’T overly interfere even tho they’re one of the most experienced people in the room
Jury & their roles
12 members of the public listen, decide the facts & deliver the verdict
- be objective
- listen to & rmb evidence
- understand directions and summing up
- deliver a verdict
Be objective
- Open-minded & unbiased
- NO preconceived notions or any connections
- Decided solely on facts presented
Listen to and remember the evidence
- Jurors can take notes to help them rmb
- Must NOT conduct any research (can cause bias & create UNFAIR trial)
- If jurors breach their obligations then the jury may be discharged
Understand directions and summing up
- Judge delivers a summary of what has been brought up in the courtroom
- Jury directions may be given throughout the trial to clarify any confusing points or language
Deliver a verdict
- Jury deliberate & form a decision on accused’s guilt
- Deliberations are confidential + verdict DOESN’T require reason
- Jury aims for unanimous verdict (majority verdict accepted except for murder, treason or other certain drug offences)
Strengths of a jury
- Randomly picked, no connection to parties & make decision based on facts – NOT on biases (F)
- Represent cross-section of community – their decision reflects values of society (E)
Weaknesses of a jury
- Unconscious bias & no reason for decision so there is no way of knowing if bias played a role in decision-making (F)
- Some CANNOT participate b/c uneligible, excused or disqualified so section of community is possibly NOT represented (E)
Parties & their roles
prosecution + accused must always comply with the rules of the court & orders of the judge
- dislose info to the accused
- participate in the trial or hearing
- make submissions about sentencing
Disclose information to the accused (Prosecution)
- All relevant matters (evidence & materials)
- Relevant convictions of prosecution witnesses (assist accused cross-examining the witness to disprove credibility)
Participate in the trial or hearing (Prosecution)
- Present their case: present opening address, present evidence, cross-examine the witnesses & make closing address
Make submissions about sentencing (Prosecution)
- Inform the court about laws that apply during sentencing
- Relevant info about offence or the offender
Participate in the trial or hearing (Accused)
- Choice to fully participate or remain silent
- If they choose to present a defence: present opening address, present evidence, call witnesses, cross-examine the witnesses & make closing address
Make submissions about sentencing (Accused)
- Aim: obtain least possible sentence available
- Provide factors about their life or the offence that could lessen the sentence
Strengths of parties
Weaknesses of parties
