AOS 1B Flashcards
1
Q
Jurisdiction:
A
The authority or power of a court to hear specific types of cases
2
Q
Original Jurisdiction:
A
The ability of a court to hear a case in the first instance
3
Q
Appellate Jurisdiction:
A
The ability of a court to hear a case on appeal.
4
Q
THE SUPREME COURT - COURT OF APPEAL
A
Original Jurisdiction:
- No original jurisdiction
Appellate Jurisdiction:
- Appeal from County court
- Appeals from supreme court - trial division (No automatic right to appeal from the trial division, the party must seek leave. (permission)
Appeals are heard from three supreme justices. )
5
Q
THE SUPREME COURT - TRIAL DIVISION
A
Original Jurisdiction:
- Jurisdiction to hear all offences, but in practice, usually only serious indictable offences.
(Murder, treason
Appellate Jurisdiction:
- Appeals from the Magistrates court on question of law only.
6
Q
THE COUNTY COURT
A
Original Jurisdiction:
- All Indictable offences, except murder and treason.
Appellate Jurisdiction:
- Appeals from the Magistrates court on question of fact, or against a sentence.
- The court hears the appeal as “de novo” (as new). They do not consider the Magistrate’s decision.
7
Q
THE MAGISTRATES COURT
A
Original Jurisdiction:
- All summary offences
Appellate Jurisdiction:
- No appellate Jurisdiction
8
Q
SPECIALISATION
A
- Courts develop expertise when resolving certain types of cases. This allows for timely, fair and consistent outcomes.
The supreme court court of appeal:
- specialises in hearing appeals. Has expertise in resolving complex questions of law.
The supreme court - trial division:
- Specialises in hearing most serious indictable offences.
The county court:
- Specialises in hearing indictable offences and running trials.
The Magistrates court:
- specialised in hearing and resolving large volumes of cases (therefore processes are intended to be quick and efficient), has processes for dealing with self-represented accused, and can evaluate serious cases as to whether they should proceed to trial
9
Q
APPEALS
A
- Decisions made in lower courts can be appealed if a party is unsatisfied by the court’s decision. Processes are checked and mistakes are corrected.
- Cases can be appealed:
On question of law
Against a conviction
Against the severity of an offence - The party that makes the appeal is known as the appellant, the other part becomes the respondent.
10
Q
PLEA NEGOTIATIONS
A
- Plea negotiations in criminal cases are discussions between the prosecution and accused, aimed at resolving the case by agreeing on an outcome to the criminal charges laid.
- The plea negotiation does not determine the sentence/outcome
- Elements of a case may be resolved without going to court. This is what plea negotiations are for.
- The prosecutor and defence ( on behalf of the accused) may enter into negotiations which result in an agreement about what the accused will plead guilty to, and which charges should be dropped by the prosecution - “Charges withdrawn”
Common Outcomes:
- The accused will plead guilty to fewer charges, with additional charges withdrawn
- The accused will plead guilty to a charge, but the parties reach an agreement on the facts.
- The accused will plead guilty to a lesser charge. E.g going from culpable driving causing death to dangerous driving causing death.
11
Q
FEATURES OF PLEA NEGOTIATIONS
A
- Can be initiated by either party (usually the defence)
- Negotiations are conducted on a “without prejudice” basis - nothing said in negotiations can be used against the other party if they go to court.
- Negotiations can be by phone, in person, on email.
- They are most common in cases with multiple charges - a person may want to seek fewer charges.
- The prosecution should seek and consider victim input. However, this is not binding.
12
Q
PURPOSES OF PLEA NEGOTIATIONS
A
- To ensure certainty of the outcome - know how the case will proceed
- To save time, money, and resources (no need for trial)
- To avoid a trial, or contested hearing, avoid trauma, stress and inconvenience to everyone.
- The negotiations may lead to an early plea of guilty, entitling the accused to a reduced sentence.
13
Q
ISSUES WITH PLEA NEGOTIATIONS
A
-Sometimes one party will refuse to participate in negotiations
- It may not be in the accused’s best interests to plead guilty - they may have a strong chance of acquittal if the charge proceeds to court.
- sometimes negotiated charges can appear to victims and/or the public as no longer being reflective of
the conduct of the offender or truth of the situation.
14
Q
APPROPRIATENESS OF PLEA NEGOTIATIONS
A
- Whether the accused is willing to cooperate
- The strength of evidence ( including availability of witnesses)
- Whether the accused is willing to plead guilty
- Whether the accused is represented - less willing to negotiate with a self represented accused
- Views of the victim
- The time and expense of running a trial.
15
Q
MAGISTRATES VS JUDGES
A
Magistrates = Magistrates’ Court = summary offences = hearings
Judges = County or Supreme Courts = indictable offences = trials
15
Q
THE ROLES OF KEY PERSONNEL - JUDGE AND MAGISTRATE
A
Act impartially
Decide or oversee the outcome
Manage the trial or hearing
Sentence the offender
15
Q
Act impartially - Role of Judge/Magistrate
A
- Must act impartially
- Ensures all processes are followed as required by law, and both sides are afforded their rights.
- Must avoid bias and apprehended bias
- Cannot take on the role of the lawyer
16
Q
Decide or oversee the outcome - Role of judge/magistrate
A
- In contested hearings in the MC (If the accused pleads not guilty) the magistrate will hear the evidence and decide on whether the accused is guilty or not guilty.
- In the CC or the SC the jury determines the verdict. The judge can assist in their decision by providing information about the law, summaries of the case, and can discharge the jury if they are unable to come to a decision.
16
Q
Manage the trial or hearing - Role of judge/magistrate
A
- Ensures procedures are followed
- Witnesses are questioned appropriately
- Decides if evidence is admissible.
- Adjusts processes if disparity or disadvantage is present.
17
Q
Sentence the offender - role of the judge/magistrate
A
- If the accused pleads guilty or is found guilty the case is listed for a plea hearing where sentencing factors are considered.
- The judge/magistrate then sentences the offender following the guidelines in the Sentencing Act 1991 (Vic).
17
Q
THE ROLE OF PERSONNEL - THE JURY
A
Be Objective
Understand Directions And Summing Up
Listen To And Remember Evidence
Deliver A Verdict
18
Q
Be Objective - role of jury
A
- Put aside any personal bias/prejudice and determine the case on the facts presented to them in court.
- Jurors are required to excuse themselves if they are connected the parties or believe they cannot be objective.
18
Q
Understand Directions And Summing Up - role of jury
A
- At the end of the trial the judge will deliver ‘Jury Directions’ - a summary of the evidence presented and instructions about the relevant law.
- Jurors must listen and follow the directions
- Jurors can ask questions and seek clarification.
19
Q
A
19
Q
Listen To And Remember Evidence - role of jury
A
- Jurors must pay attention to the evidence and information about law presented to them in court.
- It is acknowledged that this is difficult as evidence is often boring, long and complex and processes may be confusing.
- They must not conduct independent research to look up media information about the case, this is a criminal offence in itself.
20
Q
THE ROLE OF PERSONNEL - PROSECUTION
A
Disclose Information to the accused
Make submissions about the sentencing
Participate in trial or hearing
21
Q
THE ROLE OF PERSONNEL - ACCUSED
A
Participate in trial or hearing
Make submissions about sentencing
22
Q
The accused
A
The accused is the person that has been charged with the criminal offence. Their team is called the defence
23
Q
The prosecution
A
The prosecution is the party bringing the criminal case to court
- Makes allegations, bring evidence towards allegations
24
Q
The criminal justice system is adversarial
A
One party seeks to win the case based on evidence
25
Q
The Law council of Australia has stated that “access to adequate
legal advice is an internationally recognised human right and fundamental pillar
of the rule of law”.
A
26
Q
WHY A PERSON SHOULD HAVE LEGAL REPRESENTATION
A
- To ensure that no mistakes are made during the process.
A person who is self represented may not know the complex rules around evidence, therefore would not recognise if unfair evidence was being used - To ensure that all procedures are followed and understood
DPP will likely refuse to negotiate with an unrepresented accused Self represented accused may not understand the procedures in place. - A self represented accused may not be able to see their case objectively.
- A self represented accused may not understand the full consequences of certain arguments, evidence and likely outcomes.
- A self represented accused may attempt to directly interact with the victims or witnesses.
- Courts and court personnel cannot provide advice or advocacy for an unrepresented accused.
27
Q
SELF REPRESENTED ACCUSED IN THE MAGISTRATES COURT
A
- Most of the time self represented occur in the Magistrates court where there are no trials
- Sometimes the expense of a legal representation is a simple minor matter may outweigh the benefits
- For a self represented accused in the Magistrates Court matters can take much longer than they otherwise would.
28
Q
ORDERING VLA
A
- Under s 197 of the Criminal Procedure Act 2009 (Vic) The court has power to order VLA representation in a trial involving serious cases.
- There is criteria needed:
The court must be satisfied that the accused person will not receive a fair trial without legal representation
The accused cannot afford to pay for their own lawyer (burden of proof in proving this is on the accused). - The statutory power of the court to order legal representation also occurs in common law. This comes from the case R v Dietrich (1992)
28
Q
Achievement of fairness for legal practitioners
A
Limitation:
Strenghts:
- Supports the accused to participate in trial
- Ensures all processes are followed
29
Q
Achievement of equality for legal practitioners
A
Strengths:
- Everyone has the right to legal rep, therefore reduces disparity or disadvantages.
Limitations:
- The quality of legal rep is not always equal, some people may receive more experienced legal support.
30
Q
Achievement of access for legal practitioners
A
Strengths:
- In some circumstances the court can order legal aid to address the barriers of eligibility
Limitations:
- Not everyone can afford legal rep, and not everyone can satisfy the edibility for legal aid.
30
Q
COSTS
A
- Costs are accrued by all participants in criminal matters.
- The main costs that a person is likely to incur in criminal cases are for legal services (Advice, legal representation)
- Accused people face the bigger costs as they are the individuals who are most likely to require Legal Representation.
- Everyone has the right to legal representation, but not everyone can afford it.
- To address the issue of affordability, VLA and CLSs were established.
Resources of CLCs are limited and VLA has very strict criteria - many people are not access advice or representation through VLA or CLSs resulting in more and more people self representing. - Self representation causes delays and costs for parties and the courts. As a result the courts and judges are changing their processes.
- Other pre trial processes are intended to reduce the number of cases going to court, therefore reduce the need for legal representation.
Committal proceedings intend to filter out weak cases. These proceedings allow the accused in indictable offences to hear all evidence against them and provide an opportunity for a guilty plea.
Plea negotiations Increase certainty of outcome and resolution of charges.
31
Q
CULTURAL DIFFERENCES
A
- People with different cultural backgrounds often face indirect discrimination or disadvantage with the criminal justice system.
- Cultural differences may lead to difficulties in knowing/understanding the legal system, lack of understanding of the English language, failure of the legal system to account for cultural differences and cultural misunderstanding of communication.
-
31
Q
TIME
A
- An accused has the right to be tried without unreasonable delay ‘ (protected by s 21(5) of the Charter of Human Rights and Responsibilities Act 2006 (Vic))
- Delays may occur during:
Gathering evidence
Interviewing witnesses
Determine what charges should be laidPre-trial processes
Societal upheavals (e.g Covid) - Unreasonable delays can:
Unfair trials for the accused
Unfair for victims
Cause people to have to wait in custody
Puts pressure on courts - To address the issues caused by delays:
Plea negotiations are introduced. They reduce delays by achieving early guilty pleas.
Judge alone trials were temporarily introduced during COVID-19 so trials could occur without juries, if an accused consented and had received legal advice
Adoption of digital technology for remote hearings has allowed cases to be heard more efficiently and avoid procedural delays associated with travel and access.
32
Q
CULTURAL DIFFERENCES FOR FIRST NATIONS PEOPLE
A
- First nations people have a complex system of laws and customs that have existed for thousands of years.
- First Nation People are hugely overrepresented in the (colonia) criminal justice system, for over policing to prison populations
- Language Barriers:
Koori english is recognised and valued dialect of english that is spoken members of Koorie communities across Victoria.
Common words used in both standard english and Koorie english can have different connections
For example: “Story” in standard English generally means something that is made up, in Koorie english it means a true account. - Direct questioning:
The question and answering method of obtaining information - a main strategy used in court - may be inappropriate for the First NAtion people
Directness is some cultures impolite and and being ‘evasive’ but is actually a way for being polite. - Body language:
In some cultures direct eye contact is seen as disrespectful and is therefore limited or avoided by looking down or to the side.
Witnesses may seem uninterested, evasive or unreliable. - Intergenerational trauma:
First Nations people have experienced social, economic and
political disadvantage
This continues today – academics and activists have repeatedly pointed out that bail laws disproportionately affect Indigenous people.
Therefore, many Indigenous people may have negative experiences of police, law enforcement, courts and other departments, which may influence their willingness to cooperate and engage with the criminal justice system (even as victims or witnesses).
32
Q
THE KOORI COURT
A
-Sentencing court that has been established in the Magistrates and County Court
- The court encourages the participants of First Nation offenders by:
Being a less formal environment than traditional courts
The accused has legal representation but is allowed to speak for themselves, directly to the judge or magistrate
Elders from the persons community are present and play an active role in the conversation
The court is decorated with First Nations artworks. - Eligibility
The accused must be a first nations person
They must plead guilty
No sex offence or family violence
They must be in a physical area that has the Koori court
33
Q
FINES
A
- A fine is a monetary payment the court can order an offender to pay, as a
penalty for a criminal offence. - Fines are calculated as penalty units. The current unit is $197.59.
- Fines are considered to sit relatively low on the sanction hierarchy, but can be used as equivalently seriously as alternative punishments.
- Fines cannot exceed the maximum penalty units set out in legislation.
- Fines are not available for all offences.
- Fines musts be proportionate to the offence.
- The imposition of a fine must take into account an offender’s ability to pay.
- If an offender cannot or will not pay the fine, the fine amount can be converted by the court into hour of unpaid community work (and in some serious cases, days in prison)
33
Q
IMPRISONMENT
A
- 40% of people released from prison will return to prison within 2 years (prison is not rehabilitative!!!
- Imprisonment is the most severe sanction available in the Victorian legal system.
-It involves restricting a person’s freedom and personal liberties by removing them from
the community for a set period of time.
- It should only be imposed when there is no other penalty available to achieve the purposes of sentencing.
- If an offender is sentenced to a term of imprisonment for more than 12 months, the court
must set a ‘head sentence’ (the maximum term) and a non-parole period (the minimum time someone must spend in prison before applying for parole). - A concurrent sentence means the terms of imprisonment run together.
- A cumulative sentence is served when terms are served one after another.
34
Q
COMMUNITY CORRECTION ORDERS
A
- CCOs are non-custodial, supervised sentences that the offender serves whilst remaining in the community. Conditions are imposed on the offender that they must follow.
- Failing to abide by the conditions on a CCO is a criminal offence in itself, and breaches mean that the offender will be charged and potentially re-sentenced.
- CCOs are not available for all offences (eg: murder) or for all offenders
- CCOs have mandatory terms and optional conditions:
