AOS 1 (Part 1) Flashcards
Principles of justice
the fundamental ideas and values that promote just treatment and outcomes in the legal system
Fairness
Treatment or behaviour without favouritism or discrimination; free from bias and injustice (institutionalised discrimination - gender, race, culture etc)
factors influencing fairness
- availability of legal representation
- whether laws have been properly applied
- the time it takes for the case to be heard
equality
all people being equal in statutes, rights, and opportunities. (rule of the law - equal before the law, healthy discrimination)
factors influencing equality
- the way differences are treated
- whether the legal system disadvantages a certain group
- whether laws are applied equally to everyone
access
the right or ability to enter or make use of the legal system (everyone has access in light of financial, physical, mental or social disadvantages)
factors influencing access include
- availability of legal representation and advice
- costs and delays associated with legal cases
availability of courts
- the extent to which members of the community understand legal rights
criminal law
criminal law is defined as a crime against the state
burden of proof
refers to the party with the onus for proving the guilt of the accused
standard of proof
the threshold/ level of confidence that is required to support a guilty verdict (beyond reasonable doubt - accurate impression of the high standard of proof the prosecution must satisfy)
summary offenes
minor criminal offences dealt with exclusively by a Magistrate and/or infringement notice (hearings)
Summary offences act 1966
Example offences - parking fines, minor property damage, public drunkenness
Example sanctions - fines, short imprisonment terms,
Indictable offences
Crimes of a more serious nature that cannot be heard in the absence of the accused (serious because of their nature)
Usually tried in the County/Supreme Court with a jury if the accused pleaded not guilty
Crimes Act 1958
example - homicide offences, culpable driving, drug trafficking, and serious assaults.
indictable offences heard summarily
trials for minor indictable offences can be heard summarily in a Magistrates; Court with the agreement of the prosecution, the accused and the court
(quicker and cheaper route)
the presumption of innocence
is the principle where the accused person is assumed innocent until proven guilty beyond reasonable doubt
relationship between presumption of innocence and the burden of proof
the relationship between the presumption of innocence and burden of proof is one that allows the accused innocent and does not need to prove that innocence.
They are assumed innocent from the very start and it is the prosecution that is charged with the onus to prove the guilt of accused persons
rights of the accused
an accused is entitled to certain rights in order to ensure that from the start to the end of the case, the principles of justice are upheld
- right to be tried without unreasonable delay
- right to a fair hearing
- right to trial by jury
right to be tried without unreasonable delay - accused
an accused person is entitled to have their case heard and determined within a ‘reasonable’ time
S.2 - (C), Section 25 of the Victorian Charter of Human rights and responsibilities 2006 protects this particular right.
unreasonable delay - the nature of the offence influences the amount of time required for a hearing to take place from the initial apprehension to the trial date.
factors that uphold the right
- nature of the offence
- backlog of cases where their offense may be heard
- security of the accused person
principles of fairness
- ensures fairness for the accused person (no prolonged stress of having to wait for their case
- ensures access for other accused person (no backlog in court cases)
right to a fair hearing - accused
an accused person is entitled to be tried according to correct processes and procedures in order to remove bias, and undue discrimination and to uphold the principles of justice
elements of a fair hearing
- right to be heard by an independent/impartial party
- right to a public hearing
- right to representation
- right to be heard within a reasonable ‘period’
- right to not be tried/punished more than one
Section 24 of the Victorian Human Rights and responsibilities act protects this right
elements that might impede this right
- contempt of court
- witness intimidation
Right to trial by jury - accused
an accused person is entitled to be tried by a jury of peers whose role it is to determine questions of fact and apply the law, as stated by the presiding judge, to reach a verdict
the victorian Juries Act 2000 sets out the jury empanelling process
s.80 of the Australian Constitution protects this right - if one commits an indictable offenses, you have the right to trial by jury or not (however if it is a serious federal crime, a jury must be used)
Victim
the person who has suffered harm/loss at the hands of/as an indirect result of the perpetrator’s conduct
Victim’s Rights
in criminal proceedings, victims are entitled to a number of rights that exist in order to ensure their welfare and the integrity of the proceedings and uphold the principles of justice.
- right to give evidence as a vulnerable witness
- right to be informed about proceedings
- right to be informed of a likely release date for the accused.
Vulnerable definition
the Evidence Act 1939 s.13A outlines a vulnerable witness
- is a minor
- suffers from a mental disability/cognitively impaired
- is an alleged victim of a sexual offense
- is the victim of family violence
- the possibility of being attacked or harmed either physically or emotionally
Right to give evidence as a vulnerable witness - victim
The right to give evidence as a vulnerable witness means being able to access special provisions or concessions that protect the witness and retain the integrity of their testimony
Judge decides whether to grant permission for a witness to use provisions
Evidence Act of 1939 protects this right
example
- having a relative/friend in court while giving evidence (support, safety, comfort)
- screen between the witness and accused
- court closed to the public while giving evidence
- giving evidence via CCTV
Right to be informed of proceedings - victim
Victims of crime have the right to know aspects of the case that pertain to them in order to ensure that the principles of justice are upheld
Victims’ Charter Act 2006 section 11 protects this right
information the victim may be informed of:
- progress of investigations
- outcome of bail proceedings
- details about court proceedings
- details and results of any appeals in the proceedings
- details of sentence
Right to be informed of an accused’s release date - victim
as a victim of crime, it is important that their safety and security is of high importance to the CJS in order to ensure the offender does not engage with the victim in any way that might risk them post-release
(particularly important in relation to crimes such as harassment, stalking, hate crimes etc)
Victims Charter 2006 section 17, point 2 protects this right saying the person included on the victims’ register can be given information about the offender including their likely release date
important because:
- ensures their safety
- make arrangements to relocate/ enter witness protection
Victorian Legal Aid (VLA)
legal aid is a payment of public funds allowed in cases of need, for legal advice about proceedings
VLA is a government-funded agency that has the role of ensuring that socially and economically disadvantaged Victorians can receive assistance with legal problems
VLA is highly criticised for being insufficient to meet the community’s demands for legal services
(it only provides them to people who meet their criteria - who take a means and an income test)
VLA’s Role in assisting accused persons
provides free initial legal advice over the phone (explains the case and other important information)
assists with grants to engage legal representation
offers the community a space online where they can view information regarding all aspects of the law
Provides duty lawyers
Duty Lawyers
legal practitioners based at courts that can provide case-specific information.
in some cases they can provide legal representation in court
duty lawyers are given to priority parties:
- cannot afford a private lawuer
- intellectual disabilities
- homelessness
- no english
- indigenous
- in custody/ facing a serious offence
Victorian Community legal Centres (CLCs)
community legal centres are independent, non-profit, non-government organisations
focus on:
- early advice
- working with agencies to solve legal, financial, social and health problems
- helping people who didn’t qualify for legal aid
- assisting disadvantaged australians
- helps provide the community with legal education
Committal Proceeding
Held in a Magistrates’ Court for an accused person charged with indictale offences
Committal Proceedings are a step conducted before a person who is charged with an indictable offence has a jury trial
CPs include the prosecution presenting evidence (hand up brief)
- statements from victims/witnesses/accused
- forensic evidence
- expert evidence
types of CP’s
- mention hearing
- summary hearing
- committal hearing
Purposes of Committal Proceedings
- to determine whether a charge is appropriate to be heard summarily (to speed up court proceedings)
- to determine whether there is sufficient evidence to support a conviction for the offence charged (whether a jury could determine a guilty verdict from this evidence)
- to determine how the accused proposes to plead at this stage in the proceedings (whether there is to be a long trial or not)
- to ensure a fair trial (enabling the accused to be fully informed of the prosecution’s case against them - allows them to better prepare a legal defence)
Bail
the release from custody of a person charged with a criminal offence
remand
where an accused is held in custody until the time of their trial
Jury
a group of randomly selected individuals that represent the community. they are summoned and empanelled in the County/Supreme Court
(criminal - 12, civil - 6)
Prima Facie
means ‘at first face’. in relation to a committal hearing, if there is enough evidence to commit the accused to trial or for a jury to convict
Rule of law
the principle that everyone in society is bound and must obey the law.
laws should also be fair and clear so society is willing to obey them
