AOS 1 Flashcards
What is a summary offence?
summary offences are considered a less serious crime, such as drink driving, disorderly conduct and minor assault.
Is there a right to a trial by jury for a summary offence?
No
What is an indictable offence?
An indictable offence is a serious crime ( example: homicide offence, such as murder or Manslaughter.
Where is a summary offence heard?
A summary offence is a minor crime that is generally heard in the magistrates’ court.
Where is an indictable offence heard?
Indictable offence are heard in the county court irrespective of Supreme Court of Victoria.
What is a committal proceeding?
A committal proceeding is when an accused has been charged with an indictable offence and plead not guilty. During the final stage of a committal proceedings is called a committal hearing, at which the magistrates will decide whether there is evidence sufficient weight to support a conviction at trial.
What happens when they a Magistrates’ find sufficent evidence at a committal hearing?
The accused is committed to stand trial and the case is then transferred to the higher court that will hear the case.
What happens when they a Magistrates’ does not find sufficient evidence at a committal hearing?
The accused is discharged and allowed go free. If further evidence is found in the future the accused can still be brought before the court again.
Can some indictable offence be heard summarily?
they can be heard in the Magistrates’ Court as if they were summary (minor) offences. Whether an indictable offence can be dealt with as a summary offence is determined by statute.
In a criminal trial who does the Burden Of Proof fall on?
prosecution
can the Burden of proof ever be reversed in a criminal trial?
if the accused is pleading a defence such as mental impairment, then the accused has to prove that they are actually mentally impaired.
What is the standard of proof mean?
standard of proof is “beyond reasonable doubt” in criminal cases.
What is actus reas?
refers to the guilty act
what is mens rea?
refers to the guilty mind
What is the burden of proof?
in a criminal case the burden of proof falls on the prosecution
What is the presumption of innocence?
It means that if a person is accused of committing a crime, they are considered innocent until proven guilty.
What are 3 rights of an accused
The right to be trie without unreasonable delay, The right to silence, the Right to a trail by a jury ( not in Magistrates’ Court)
What is the main purpose of the human Rights Charter?
Is to protect and promote human rights. It is designed to ensure that any statute passed by the victorian Parliament is compatible (does not interfere) with the human rights, set out in the charter.
What is the right to be tried with an unreasonable delay?
The HRC states that a person charged with a criminal offence is entitled to a guarantee that they will be tried without unreasonable delay.
What does it mean, right to be tried with an unreasonable delay?
It means than an accused is entitled to have their charges heard in a timely manner and they delays should only occur if they are considered reasonable.
Charter of human rights and responsibilities Act 2006 (Vic) - sections 21-and 25
(21 Right to liberty and security of person):(1) A person who is arrested or detained on a criminal charge has the right to be tried without unreasonable delay.
25 rights in a criminal proceeding.
(1): A person charged with a criminal offence is entitled with out discrimination to the following rights : to be tried with unreasonable delay.
How is the right to silence protected by common law?
1: Accused person has the right to remain silent.
2: No negative conclusions can be made from the fact that a person’s not answered any question or given evidence
What is the Right to a trial by a Jury for an Accused?
A Person charged with an indictable offence is entitled to be tried by their peers.
How is the Jury made up?
the jury will be made up by 12 members of the community
Does Someone who is charged with a summary offence have the Right to a jury?
No
What is a Victim?
A person who has suffered directly or indirectly as a result of a crime
What are 3 rights available to a victim?
(1) The right to give evidence suing alternative arrangements,
(2) The right to be informed about the proceeding,
(3) The right to be informed of the likely release date of the offender.
When does the victim have the right to give evidence using alternative arrangements?
Sexual offence, family violence offence, an offence on sexual exposure in a public place, an offence for obscene, indecent, threatening language or behaviour in public.
What are types of alternative arrangements for Victims?
The witness may give evidence from a place other than the courtroom (eg: through zoom, or camera).
screens may be used to remove the accused from the direct line of vision of the witness.
A support person may be chosen by the witness to be beside then whole the witness is giving evidence, so they can provide emotional support. The court sees to approve the support person chosen.
Legal practitioners maybe be required to not be formally dressed in robes.
legal practitioners may be requites to be seated while asking the witness question (incase they they feel threatened or intimdated.)
only certain persons maybe be allowed on the court when the witness is giving evidence.
What is the purpose of alternative arrangements?
Is to try and reduce the trauma, distress and intimidation that a witness may feel when giving evidence.
What is the right to be informed about the proceedings
The Victims’ Charter recognises that people adversely affected by crime should get certain information about the proceeding and about the criminal justice system.
The Victims’ Charter requires investigatory agencies, prosecuting
agencies and victims’ services agencies to provide clear, timely and consistent information about support services, possible compensation entitlements and the legal assistance available to persons adversely affected by crime.
What infromation does the prosecution have to give the victim?
Details of the offence charged against the person.
If no offence is charged, the reason why.
How the victim can find out the date, time and place of the hearing of the charges.
the outcome of the criminal proceedings, include any sentece imposed
details of any appeals
The victim must also be told that they are entitled to attend any court hearings.
The right to be informed of the likely release date of the offender?
Rape and other sexual offence
aggravated burglary
kidnapping
stalking
child stealing
assault or injury punishable by imprisonment
culpable driving causing death
dangerous driving causing or serious injury
What are the 3 principles of justice?
Fairness, Equality, access
what is the victims register?
a register (database)
maintained by the state of Victoria set up to provide the victims of violent crimes with relevant information about adult prisoners while they are in prison le.g. the prisoner’s earliest possible release date)
What is parole?
The supersized and conditional release date if a prisoner after the minimum period of imprisonment has been served
What does fairness mean?
Impartial process, open process and participation
What is an impartial process?
This means that people should not show bias towards or against either party and the case must be decided based on facts an not on prejudice
What are some key characteristics of participation ?
opportunity to know the case put against them, opportunity to prepare a defence, use of a lawyer
examples of equality
same treatment, different treatment
what is same treatment in equality ?
means that people are treated in the same way
what is different treatment?
if treating people in the same way could in fact cause disparity or disadvantage, them measures should be put into place to allow people to participate in the criminal justice system.
examples of access
engagement, informed bias
example of engagement in Access
physical, financial, no delay
what is informed bias
people should be Able to engage on an informed bias. this means that they should be able to: (1) understand their legal rights and the processes involves in their case. (2) obtain or be provided with enough information to make reasoned and sensible decison (eg: a decision about whether to plead guilty or guilty)
what does VLA stand for
Victorian legal aid
What is the VLA?
VLA is a government agency that provides free legal information to the community, and legal advice and legal representation for people who cannot afforest pay for a lawyer.
What are VLA’s objectives?
(1) provide legal aid in the most effective, economic and efficient manner (2) provide the community with improved access to justice and legal remedies.
What is an income test?
The test applies by VLA to determine whether a duty lawyer can represent an accused. the test is satisfied when the accused can show that they have limited income
what is the means test?
the applied by VLA to determine whether an applicant qualifies for legal assistance or representation in court ( beyond there services of the duty lawyers on the day) it takes into account the applicants assists and expenses.
