4.6 Judge/Magistrate

Question 1

Apprehended Bias

Answer 1

a situation in which a fair-minded lay observer might reasonably believe that the person hearing or deciding a case (e.g. a judge or magistrate) might not bring an impartial mind to the case

Question 2

Evidence:

Answer 2

information, documents and other materials used to prove the facts in a legal case

Question 3

Hearsay Evidence

Answer 3

evidence given by a person who did not personally witness the thing that is being stated to the court as true

Question 4

Barrister

Answer 4

an independent lawyer with specialist skills in dispute resolution and advocacy who is engaged on behalf of a party (usually by the solicitor). In Victoria, the legal profession is divided into two branches: solicitors and barristers.

Question 6

Victim Impact Statement

Answer 6

a statement filed with the court by a victim that is considered by the court when sentencing. It contains particulars of any injury, loss or damage suffered by the victim as a result of the offence

Question 7

Community Correction Order

Answer 7

a flexible, non-custodial sanction (one that does not involve a prison sentence) that the offender serves in the community, with conditions attached to the order

Question 8

What is the Role of the Judge/Magistrate

Answer 8

• Act impartially (no bias/apprehended bias)
• Manage the trial/hearing
• Decide/oversee the outcome of the case
• Sentence/sanction the offender

also; interpreting + applying rules of evidence, managing cross-examination.
Impartial and Unbiased Umpire

Question 9

In what way do judges manage trials/hearings

Answer 9

• Have powers of case management
• ensure procedure is followed (witnesses, order of events etc.)
• ask occasional questions of a witness, clarify prvious matter, call new witnesess
• interpret + apply rules of evidence - evidence must be relevant, hearsay is usually inadmissible, opinion is not admissible
• adjust trial procedures to prevent disparity

They do not take sides, can’t make up for bad barrister

Question 10

In what ways can a judge/magistrate decide/oversee the outcome of the case?

Answer 10

Magistrate - decides guilt on facts
Judge - makes sure the jury understands their role, sums up the case
* Gives directions ot jury (e.g. accused does not have to give evidence
* Summarise the case at the end of the trial (explaining laws ,evidence, presentation of sides)
* can accept majority verdict (11/12)

Question 11

In what ways does a judge/magistrate sentence an offender

Answer 11

• after guilt is determined, case will be set for plea hearing
• then judge hands a sentence (Sentencing Act 1991 (Vic) - guideline
• Will hear from victim impact statement (otherwise grounds for appeal)

Question 12

Strengths of having a Judge/Magistrate

Answer 12

• Impartial umprie, ensuring fairness
• manage cases, rule of evidence is followed
• assist self-represented people + adjust trial process to accommodate

Question 13

What are the weaknesses of having a judge/magistrate

Answer 13

• They are human, can have bias/apprehended bias, may be fatigued
• lack of diversity in judges - can impact comfort of people
• cannot overly interfere, even if there is self-represented / bad lawyer (even though they are most experienced)