AOS 1 - UNIT 3 Flashcards
Define the criminal justice system and identify the two parties in a criminal case.
Criminal justice system = a set of processes and institutions used to investigate and determine the outcomes of criminal cases.
Parties = Prosecution v Accused (sometimes referred to as defendant in the Magistrates’ Court).
Define the principle of ‘fairness’ in relation to justice.
Fairness in the criminal justice system means appropriate processes and a just hearing throughout the whole case, in order to uphold the rule of law
This includes:
*Having your court case heard impartially and objectively
*Understanding court processes
*Having an opportunity to present a defence & a chance to rebut the prosecution’s case
Define the principle of equality in relation to justice.
Everyone should be treated without disadvantage before the law, with the same opportunity to present their case as everyone else. This means all processes should be free from prejudice and bias.
Define the principle of access in relation to justice.
All people should be able to understand their legal rights and pursue their case, and be able to utilise bodies and institutions within the criminal justice system.
How are the principles of fairness and equality different?
Fairness = just processes and an unbiased hearing throughout the whole case, even if that means treating people differently.
Equality = everyone being treated as equals before the law, allowing them to present their case.
Explain the three types of criminal offences (according to their seriousness).
Summary= less serious offences heard in the MC by a Magistrate (no jury), usually found in the Summary Offences Act 1966 (Vic)
Indictable=serious crimes heard in a higher court by a judge (and jury if the person pleads not guilty), usually found in the Crimes Act 1958 (Vic)
Indictable tried summarily = serious crimes heard in the MC as though they are summary offences
Provide 3 examples of summary offences.
Drink driving, common assault, disorderly conduct, traffic violations, loitering, littering, shoplifting etc.
Provide 3 examples of indictable offences.
Drug trafficking, Murder, Manslaughter, Rape, Drug cultivation, Aggravated burglary etc.
Provide 2 examples of indictable offences tried summarily.
Robbery, Theft or Burglary over the value of $100,000
Define the key concept of the burden of proof in the criminal justice system and explain who holds it.
*The task or responsibility of proving the facts of the case to the required level.
*Usually held by the prosecution (as they are the initiating party) although in some rare situations (such as drug cases) the burden can be reversed.
Define the key concept of the standard of proof in the criminal justice system and explain what the standard is.
*It is the level or degree of proof needed in order to have satisfactorily proved the facts of the case.
*In criminal cases the standard is usually beyond reasonable double, which means there can be no other reasonable conclusion from the facts presented.
*However, in cases where the burden of proof is reversed, the standard of proof is lowered to ‘the balance of probabilities’.
Describe the key concept of the presumption of innocence in the criminal justice system.
A right guaranteed by the Victorian Charter of Human Rights and Responsibilities that states everyone must be treated as though they are innocent until proven guilty.
This means they can’t be treated, as far as possible, like they are a criminal until the case has been determined.
Identify 3 ways the presumption of innocence is upheld in the criminal justice system.
*Giving the prosecution the burden of proof
*Having a high standard of proof in criminal cases
*Providing bail (unless there are good reasons not to!)
*The accused’s right to silence
*Exclusion of propensity evidence in most trials
Identify the 3 rights an accused person holds, and the way each of these rights is protected.
1 – Trial without unreasonable delay (Victorian Charter of Human Rights & Responsibilities 2006)
2 – A fair hearing (Victorian Charter of Human Rights & Responsibilities 2006)
3 – Trial by jury (s.80 commonwealth constitution for cth indictable offences, Criminal Procedure Act 2009 (Vic) for Victorian indictable offences)
Describe the right to a trial without unreasonable delay held by an accused.
*Right protected by (Victorian Charter of Human Rights & Responsibilities 2006)
*Right doesn’t mean no delays are allowed, but they must be reasonable to the case
*Right doesn’t discriminate – it is available to everyone in society, regardless of past behaviours or convictions
*Case example: Gray v DPP (released on bail)
Describe the right to a fair hearing as held by an accused in a criminal trial.
*An accused person is entitled to have their charges decided by a competent, independent and impartial court after a fair and public hearing
*Case example: Dietrich v The Queen – The HC accepted that Dietrich’s trial had been miscarried because he was not provided with legal representation
Describe the right to a trial by jury held by an accused in a criminal trial.
*Only available for indictable offences
*Protected by s.80 Commonwealth Constitution for Cth indictable offences & Criminal Procedure Act 2009 (Vic) for Victorian indictable offences
Identify the 3 rights a victim has, and the way each of these rights is protected.
1 – Give evidence as a vulnerable witness (Criminal Procedure Act 2009 (Vic) and Evidence Act 2008 (Vic))
2 – Right to be informed about the proceeding (Victims Charter)
3 – Right to be informed of the likely release date of the accused (Victims Charter)
Describe the right to be informed about the proceedings held by a victim of a criminal offence.
*Relevant institutions must give required information to victims if they request it
*Information doesn’t have to be given if it is likely to interfere with the case
*Once the prosecution starts, victims have to be given:
-Details of charges (or if no charges made, the reason why)
-How the victim can find the date, time and place of the hearing
-The outcome, including any sentence imposed
-Details of any appeal made
-Victim must be told they can attend court proceedings
Describe the right to be informed of the likely release date held by a victim of a criminal offence.
*Victims of violent crimes can register for the Victim’s register, which provides a range of information (including the likely release date of the offender)
*Likely release date must be given no less than 14 days prior to expected release date
*Violent crimes eligible for the victims register include: rape & sexual offences, aggravated burglary, kidnapping, stalking, child stealing, offences involving assault or injury punishable by imprisonment, culpable driving causing death, dangerous driving causing death or failing to stop after a motor vehicle accident causing death or serious injury.
Describe the right to give evidence as a vulnerable witness as held by a victim of a criminal offence.
*For all witnesses, the Evidence Act requires the court to disallow improper questions or tell the witness that they do not need to answer a particular question
*For witnesses in a sexual offence, family violence offence or summary offence of sexual exposure or obscene/indecent/threatening language/behaviour, the Criminal Procedures Act requires the court to allow alternative arrangements to be used, such as using CCTV to give their evidence from outside the court room
*CCTV is compulsory if the witness is the complainant in a sexual offence
What are the roles of VLA?
*Provide legal aid to people accused of a crime
*Control the Legal Aid Fund (money available to them to use)
*Cooperate with government to meet legal aid needs
*Make recommendations about law reform
*Create and present educational programs
*Research legal aid issues
What are the different purposes of committal proceedings?
*Determine if the charge is appropriate to be heard summarily
*Determine if there is enough evidence to support a conviction
*Find out how the accused will plead to the charges
*Ensure a fair trial by;
- Disclosing the prosecution’s case
- Allowing the accused to read/hear evidence against them, and cross-examine witnesses
- Allowing the accused to put forward an early case(if desired)
- Allowing the accused a chance to properly prepare and present a case
- Ensuring issues are clearly defined
What is a plea negotiation, what is it used for & what are the possible outcomes?
Plea negotiation = discussions between the prosecutor and the accused about the charges they’re facing to try and encourage an early determination of the case.
Outcomes:
*May agree to plead guilty to less charges if the others are dropped OR
*Plead guilty to a lesser offence OR
*Proceed with trial (so the process fails)
What is a sentence indication? What indications can be given to accused people during this process?
Sentence indication =a court statement made by a judge or magistrate about the sentence the accused
could face if they plead guilty to an offence at a particular point in time
Possible indications:
Summary offence - find out whether an immediate term of imprisonment is likely, or an alternative sentence
Indictable offence - find out what type of sentence OR the total length of sentence (which caps the sentence to that amount)
Suggest when plea negotiations are appropriate.
*There are issues with availability, reliability or willingness of witnesses to give evidence
*There are issues with admissibility of key pieces of evidence
*The police made errors with the charges
*The accused has been cooperative with police
*The trial is likely to be long, expensive & stressful
Suggest when plea negotiations are not appropriate.
*The case is high profile, so transparency is needed
*The victim doesn’t want lesser charges considered (although the prosecution doesn’t have to follow these wishes)
Suggest when sentence indications are appropriate.
*‘Borderline cases’ where it’s not clear if imprisonment is likely
*Victimless crimes (i.e. drug offences or fraud) where sentencing doesn’t need to consider the victims views
