AOS1 - The Victorian criminal justice system Flashcards
Summary offences
- Less serious
- Small impact on society
- Resolved by a hearing in the MC
- Sanctions less severe
- Max 2 years imprisonment for a single offence
- Examples: Disorderly conduct, common assault, road traffic offences
The Act that outlines maximum penalties a court can impose
Sentencing Act 1991 (Vic)
Indictable Offences
- More severe
- Significant impact on society
- Heard by a judge in County or supreme
- Sanctions are more severe such as fines or longer term imprisonment.
- Listed in the Crimes Act 1958 (Vic). Examples: Murder, theft
The act that outlines most indictable offences
Crimes Act 1958
Indictable offences heard and determined summarily
Indictable offences heard and determined summarily are resolved as though it is a summary offence. The criminal procedures act 2009 outlines the eligibility for an accused to have their case heard through this process such as the offence must have a maximum penalty of less than 10 years along with the accused aggreging and the court is satisfied it is appropriate to do so being the matter is not complex nor too serious.
Benefits of having a case heard and determined summarily include a lower sentence as the Magistrates court can only impose a sentence of no more than 2 years, along with being both a cheaper and a quicker process. The Magistrates Court is the lowest ranked court therefore is better for the accused’s criminal and provides more appeal options.
Eligibility:
- Eligibility set out in the criminal
procedures Act 2009
- Must have maximum penalty of less than 10 years
- Accused and court agree
Benefits:
-The MC has a lower maximum sentence
- Cheaper and quicker process
better for the accused criminal record
there are more appeal options
The presumption of innocence
-Foundational principle of the criminal justice system
- A person is presumed innocent until proven guilty
- The right originally came from common law as precedent
- now included in the charter of human rights and responsibilities Act 2006 (vic)
- allows guilt to only be determind by a court of law
- Features that uphold the presumption of innocence include police having reasonable grounds to make an arrest. The right to silence, an offence can appeal against wrongful convictions.
The Act that outlines the eligibility of a case heard summarily
Criminal procedures Act 2009
The Burden of proof
- Refers to the party who carries the burden of proving the facts of a case.
- in a criminal case the onus is on the prosecution to prove the accused is guilty.
- Evidence must be gathered that proves both the mens rea and the actus reus .
The burden of proof links to the presumption of innocence:
- The accused does not need to prove their innocence.
- The accused carries the right to silence in trial
- The accused has the right of protecting their innocence by testing the evidence of the prosecution.
The burden of proof can be reversed:
- if the accused is found to have illegal
substances - The accused raises a defence
The standard of proof
- the degree to which the facts of a case must be proven (the strenght)
- Standard of proof is beyond reasonable doubt for criminal cases. The highest possible standard.
Rights of the accused
The right to be tried without unreasonable delay
The right to silence
The right to trial by jury
The right to Be tried without unreasonable delay
- All accused are Entitled to this right
- Charges should be heard in a timely
manner - The right is protected in S21 and S25 of The charter of human rights and responsibilities Act 2006 (Vic)
- Does not mean without ANY delay
- Some delay may be considered necessary
or reasonable - The right applies different for accused’s under 18, they must be brought to court “as quickly as possible”
The right to silence
- A common law right that allows a person to remain silent when being questioned by a person of authority
- This right is protected through all stages of a trial
- If a person is believed to have committed a crime the only information they must give is their name and address
- This right is protected by common law and implied through statute law
- Common law outlines that no inferences can be made from a person exercising this right
- S89 of the Evidence Act 2008 states that no unfavourable inferences can be made because a person chooses not to answer a question.
- A judge must inform the jury that if an accused does not give evidence this can not be a sign of guilt.
The right to trial by jury
- A group of randomly selected people from the community by an electoral roll who must listen to evidence presented during a trial an from this determine the final verdict.
- The system allows for he accused to have their case to be judged by their peers and intends for community standards to be applied within the criminal justice system.
- The composition of a jury is stated in the Juries Act 2000 (Vic)
- A group of 12, minimum 10 and max 15 where their is a unanimous or in some cases a majority verdict.
Victim
-A Victim is a person who has suffered directly or indirectly as a result of a crime
- A victim is not a party, they are only called as a witness to support the prosecution in proving the crime occurred.
- Victims have been acknowledged to be recognised and treated with respect and dignity as participants in criminal proceedings.
- The way victims should be treated is outlined in the Victims’ Charter Act 2006 (Vic)
- Rights to victims are limited - not enforceable
The rights of a victim
THE RIGHTS TO GIVE EVIDENCE USING ALTERNATIVE ARRANGEMENTS
THE RIGHT TO BE INFORMED ABOUT THE PROCEEDINGS
THE RIGHT TO BE INFORMED OF THE LIKELY RELEASE DATE OF THE OFFENDER
THE RIGHTS TO GIVE EVIDENCE USING ALTERNATIVE ARRANGEMENTS
- Victims may have to give evidence to support the prosecution’s case, therefore acting as a witness
- The Criminal Procedure Act 2009 (Vic) sets out the rules for all witnesses, some
witnesses are given certain protections such as Alternative arrangements. - Alternative Arrangements are measures that are put in place for witnesses in certain types of criminal cases to give evidence in a different way.
- A sexual offence
A family violence offence
An offence for obscene, indecent, threatening language or behaviour
An offence for sexual exposure in public places. - Can be made at any stage of a proceeding
-Alternative arrangements include:
The witness giving evidence remotely
A screen to block the accused from sight of the witness.
A support person (unable to speak)
Closing court
Legal practitioners may have to act less formal
-The purpose of Alternative arrangements is to reduce trauma, distress, and intimidation that witnesses may feel when giving evidence.
THE RIGHT TO BE INFORMED ABOUT THE PROCEEDINGS
- S 7 of the Victims’ Charter recognises that victims should get information about their proceeding and the criminal justice system.
- Investigatory agencies (police) are required to inform victims, at reasonable intervals, about the progress of criminal investigations. Victims can choose to not receive this information.
- Under section 9a, once a prosecution has commenced the prosecution must give the following information:
Details of the offence charged
If no offence is charged, the reason why
How the victim can find the date, time and place of the hearing of the charges.
The outcome of the criminal proceedings, including any sentence imposed. - This right acknowledges that victims may wish to be kept informed about the case that has impacted them and their lives.
- Knowing the verdict and the sanction if given can give the victim a sense of justice and closure.
THE RIGHT TO BE INFORMED OF THE LIKELY RELEASE DATE OF THE OFFENDER
- A victim of a criminal act may apply to be included in the Victims register.
- The victims register is a database maintained by the Victorian government which provides the victims of violent crimes with relevant information about prisoners while they are in prison
- Can only apply if you have been a victim of a serious indictable offence such as sexual offences or kidknapping
- Once on the register the victim will receive information such as Notification of release of the offender (at least 14 day before)
The length of sentence
If the offender escapes prison
FAIRNESS
- Fairness is defined as all people can participate in the justice system and its processes should be open and impartial.
- The right to a fair trial is recognised in ranges of sources including the Human Rights Charter, common law
- Intended to ensure that innocent people are not found guilty of crimes they did not commit.
-Impartial processes
The courts and judge should be independent and impartial
No bias towards either party in a proceeding.
Cases should be decided on facts and law, not prejudice.
- Open Processes
Processes should be understood
All justice institutions should be accountable by the public (Police, courts, government bodies)
E.g, open hearings, publicly reported and published decisions, media coverage - Participation
Relates to the accused but also affects witnesses, complainants, family ect.
The opportunity for the accused to know the case against them
The opportunity for an accused to prepare a defence
The use of an interpreter
The use of a lawyer
The ability for some witnesses to give evidence using alternative arrangements
The use of victim impact statements during sentencing
ACCESS
- Defined as all people should be able to engage with the justice system and its processes on an informed basis.
- Engagement
Physical Access: People need to be able to physically access the courts and services.
Technological Access: Courts are relying on technology more and more so people may need support and resources to engage.
Financial Access: People should not be prevented from defending their case due to their financial circumstances. - Informed basis
Understand the rights and processes
Education: Higher education can someone’s ability to understand the system
Information: Information should be provided publicly by courts, legal bodies and Victoria legal aid.
Legal Representation: A person will have greater access to justice if they can afford legal representation.
EQUALITY
- Equality can be defined as all people engaging with the justice system and its processes should be treated in the same way. If the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow everyone to engage with the justice system without disparity or disadvantages.
- Treated the same way
Known as ‘formal equality’
All people regardless of their characteristics are treated the same way.
No one is above the law and no one should be discriminated against by the law.
The same rights, processes and choices are afforded to all. - Without disparity or disadvantages
Known as ‘Substantive equality’ (equity)
Substantive equality acknowledges that formal equality can cause disparity or disadvantages for certain people.
Treated differently to suit their needs
In such cases measures need to be put in place to prevent that disparity/disadvantage from happening. - Adequate measures (for equity)
Interpreters
Information presented in a different way (Younger people)
Changes to court processes may be required (Alternative methods)
Providing choices for oath and affirmations
Incorporation of cultural values (Koori court)
Victorian Legal Aid
- VLA is a government agency (funded by the Cth)
- Provide free legal information
- Provides legal advice and legal representation for people who cannot afford to pay for a lawyer
- VLA is established by the Legal Aid Act 1978 (Vic)
