Area of Study 1b Flashcards
Victorian Criminal Justice System
1
Q
Judge
A
An independent authority who presides over a trial ensuring procedural fairness by overseeing all personnel and evidence.
2
Q
Magistrate
A
An independent authority who presides over hearings in the Mag Court for less serious matters such as summary offences committal proceedings and some civil disputes
3
Q
Role of the Judge and Magistrate
Manage the Trial
A
Manage the Trial
> ensure court procedures are followed and both parties have the same opportunity to present their case
> As clarifying questions of witnesses and call new witnesses
> Adjourning (taking breaks) in a trial to ensure there is no disparity e.g. if a witness shows signs if distress continuing to testify may lead to inaccurate information
> Limiting examination in Chief and Cross examination to ensure trial to proceed in a timely matter
4
Q
Role of the Judge
Direct the Jury
A
Direct the Jury
> Giving directions to the jury to ensure a fair trial - inform the jury that the accused is not required to give evidence
> Explaining legal definitions to the jury e.g. standard of proof, the law that applies to the facts
5
Q
Role of the Magistrate
Determine the Guilt of the Accused
A
Determine the Guilt of the Accused
> determine whether the accused is guilty based upon the evidence presented by the police prosecution
6
Q
Strengths of Judges
A
> independent, impartial judge/mag ensures that the trial and court procedures are conducted fairly, without bias and according to the rules of evidence and procedure
- if a judge sees that one party is highly disadvantaged due to not having adequate legal representation, they can adjourn the trial in order for legal representation to be provided
- judges can explain points of law to jury members allowing jurors to better understand and participate in the trial
7
Q
Weaknesses of Judges
A
- judges can only explain court procedures and legal terminology to parties, they cannot provide additional information to a self-represented party, increasing the likelihood of an unfair trial due to the complexities and formalities of criminal trials
- judges are still human and may be subject to personal bias and therefore may subconsciously discriminate against parties, hindering equality
- judges rely on parties to present all relevant evidence. thus a self-represented accused may not disclose all relevant facts
8
Q
Jury
A
A group of randomly selected ppl from the electoral roll who are required to deliver a verdict in a trial solely based upon evidence presented to them in court
9
Q
Role of the Jury
Remain Objective
A
Remain Objective
> must be independent and unbiased
> jurors w prior connections to the accused must alert the court and excuse themselves
10
Q
Role of the Jury
Listen and Consider Evidence Presented
A
Listen and Consider Evidence Presented
> be alert
> take notes to track information
> listen to directions given by the judge
> apply the law
> participate in deliberation
11
Q
Role of the Jury
Determine a Verdict
A
Determine a Verdict
> consider only the evidence presented to reach a conclusion
> listen to other jurors during deliberation
12
Q
Strengths of Juries
A
- trial by one’s peers ensures that the verdict reflects societies values, promoting a fair trial as views of the community are accounted for
- 12 ppl upholds transparency of the criminal justice system as it ensures members of the court act in a professional manner
- all accused persons charged w an indictable offence are entitled to a jury regardless of status
13
Q
Weaknesses of Juries
A
- juries are used in a very small proportion of cases, limiting their effectiveness
- never a true cross-section of the community as ppl can be ineligible, excused or disqualified
- criminal trials can be complex and technical, making it difficult for an ordinary person to fully understand legal terminology, procedures and the facts and evidence presented
14
Q
Victorian Court Hierarchy
A
A ranking of the courts based upon the severity and complexity of the case in which they can adjudicate.
15
Q
Jurisdiction
A
The legal authority of a court to decide legal cases.
16
Q
Original Jurisdiction
A
The power if a court to hear a case for the first time
17
Q
Appellate Jurisdiction
A
The power of a court to hear a case on appeal
18
Q
Leave to Appeal
A
Formal permission to appeal the outcome of a case in a higher court
19
Q
Magistrates Court Jurisdiction
A
Original
> Summary offences
> Indictable offences heard summarily
> Applications for warrants
> Bail hearings
Appellate
> No appellate jurisdiction
20
Q
County Court Jurisdiction
A
Original
> Most indictable offences such as;
+ rape
+ armed robbery
+ serious drug offences
Appellate
> Appeals from the Mag Court where the;
+ offender is appealing against the conviction
+ either party is appealing against the sanction imposed
20
Q
Supreme Court TD Jurisdiction
A
Original
> Unlimited criminal jurisdiction but in practice only conducts trials for the most serious indictable offences, such as;
+ murder and manslaughter
+ terrorism offences
Appellate
> Appeals from the Mag Court on questions of law
21
Q
Supreme Court COA Jurisdiction
A
Original
> No original jurisdiction
Appellate
> Three justices preside over an appeal case for appeals from the County of SCTD against the sanction imposed, questions of law and appeals against s conviction
22
Q
Reasons for Court Hierarchy
Specialisation
A
Specialisation = the level of expertise gained by the judge or magistrate which is developed from hearing the same matters repeatedly. Allows cases to be resolved in an efficient, consistent and fair manner.
e.g. SCTD hears the most serious indictable offences such as murder and manslaughter allowing judges to develop expertise in the elements of each crime, jury matters, rules of evidence and procedure
Mag Court hears summary and indictable offences heard summarily which are matters that need to be dealt with quickly and efficiently
23
Q
Reasons for Court Hierarchy
Appeals
A
Appeals = legal process that a party who is dissatisfied with the outcome of their case and has a relevant reason, can participate in to seek review of the court’s decision by a higher court.
Appeals are needed to allow a party who is dissatisfied with a judgement in trial to take the matter to a higher court for review, allowing fairness so that mistakes can be corrected
24
Reason for Appeal
Question of Law
The appellant can argue that the law has not been followed e.g. inadmissible evidence was allowed
25
Reason for Appeal
Conviction
The offender can argue that the BoP/SoP from the prosecution has not been met and therefore appealing the verdict
26
Reasons for Appeal
Appealing a Sanction
The prosecution can appeal a sentence on grounds of leniency and the offender can appeal a sentence arguing it is too severe
27
Evaluating Court Hierarchy
Fairness
+ the existence of a court hierarchy promotes fairness through specialisation as the courts develop expertise enabling the cases to be ruled over by a skilled judge who is knowledgeable about open and impartial processes
- some offenders may not be able to appeal if they cannot afford the fees, limiting the ability to correct errors in an outcome, meaning in some cases a fair outcome is not achieved for all
28
Evaluating Court Hierarchy
Equality
+ all parties have the right to appeal decisions regardless of personal characteristics given that they have the grounds to do so
- due to the costs associated with an appeal, some parties may not be able to appeal. However, the DPP is a government funded department and thus has the necessary resources to appeal, creating disparity between the accused and the prosecution
29
Evaluating Court Hierarchy
Access
+ enabling appeals to occur allows accused persons to engage with the justice system
- cost if engaging legal rep for an appeal process can be inaccessible, decreasing financial engagement
30
Prosecution
The party that acts on behalf of the Commonwealth or State and brings a criminal case to court
31
Accused
The party who is charged with a criminal offence
32
Roles of the Prosecution
Give an opening and closing address
At the start of a trial give an opening statement ti the jury outlining charges of the accused and evidence they intend to present
At the conclusion of the trial provide statements summarising their arguments and why the accused us guilty beyond reasonable doubt
33
Roles of the Prosecution
Calling Witnesses
Call all relevant witnesses, not just those that support their case and gain a guilty verdict.
Examination in chief the questioning of a witness for the first time by the party who called the witness.
Cross-examination the interrogation in court of the opposing party's witness who has already testified
34
Roles of the Prosecution
Present Evidence
Present relevant and admissible evidence to prove the guilt of the accused beyond reasonable doubt
35
Roles of the Accused
Enter a Plea
The accused must plead guilty/not guilty to the charges against them. This can be done at any time before verdict is delivered.
36
Roles of the Accused
Present Evidence and Call Witnesses
The accused is not required to present evidence - they do not have the burden of proof and have the right to silence. However, they may choose to do so as this can assist in disproving the prosecution's case by providing evidence and questioning witnesses to contradict the prosecution's arguments.
37
Roles of the Accused
Present a Defence
The accused does not have to present a defence however may choose to do so e.g. self-defence however the burden is then reversed onto the accused.
38
Strengths of Parties
> Both the prosecution and the accused are provided with the opportunity to present their case in court. This ensures that the accused is able to effectively participate in their trial through outlining admissible evidence, questioning of expert witnesses and presenting a defence.
> There's no requirement for the accused to present evidence or a defence as the PoI underpins the criminal justice system. This ensures formal equality as the burden of proof always rests on the prosecution
> The courts are able to provide some general guidance to partes who are representing themselves such as explaining legal terminology and the requirements of admissible evidence, ensuring that the accused is able to engage with the justice system on an informed basis in regard to the rules of evidence and the meaning of legal terminology
39
Weaknesses of Parties
> Self represented parties may struggle to understand how to present legal arguments and evidence against a prosecutor with expertise which could lead to decreased engagement due to not being informed of the policies and procedures regarding rules of evidence
> Silence or unwillingness to present evidence by the accused may be viewed as an admission of guilt which could lead to an unfair case outcome decreasing impartiality due to the unconscious bias determining that by not presenting evidence the accused is admitting to guilt
> An accused may plead guilty on the basis that they do not understand their rights and do not think they will present the case in the best light potentially leading to limited equality as a lack of representation creates disparity and disadvantage
40
The Need for Legal Representation
Section 197 of the Criminal Procedures Act 2009 (Vic) establishes that a court has the power to adjourn a trial until legal representation has been provided for the accused if the court is satisfied that the accused will be unable to;
> Have a fair trial w/out legal representation
> Afford the full cost of private legal representation
This right does not extend to those who choose not to engage in private legal representation despite having the financial means to do so.
41
Solicitor
A lawyer who;
> Advises clients about legal matters
> Prepares legal documentation for trial
> Communicates with the other party's legal representatives
> Researches the relevant laws
42
Barrister
Usually, a self-employed lawyer who regularly appears in court and is responsible for representing a party in a trial through;
> Making legal arguments
> Questioning witnesses
> Summarising the case to the judge/jury
43
Reasons for Legal Rep.
Ensure an Accused Understand Legal Proceedings
> How a criminal proceeding is commenced
> Committal proceedings
> How to submit a plea
> The manner in which evidence must be presented
> How to appeal a criminal conviction
44
Reasons for Legal Rep.
Help an Accused to Receive a Fairer Outcome
> Tailored defence so that an innocent accused s not wrongfully found guilty
> An accused found guilty receives an adequate sanction that in some cases may be less severe as a legal rep. can ensure mitigating factors are argued
> An accused with legal rep. is better equipped to appeal a wrongful conviction or inappropriate sanction
45
Reasons for Legal Rep.
Provide Objectivity
An accused person who's personally involved in the case may struggle to view the evidence against them objectively. A legal rep. has greater capacity to view the case from an impartial POV.
46
Factors Influencing the Criminal Justice System
3 factors w/n the criminal justice system that can influence whether the principles of justice are achieved
3 factors include;
> Cost
> Time
> Cultural Differences
47
Impacts of Costs
Obtaining legal advice - solicitors fees - to receive initial advice through reviewing the prosecution's evidence plan which witnesses will be called and meet with witnesses before trial
Barrister's fees - hiring barristers to present arguments and question witnesses in court. Costs for barristers can range from $300 - $1000 p/h for King's Counsels
Witness fees - payments made to expert witnesses to challenge witness statements. In the CC witness fees are $197 - $395 p/h but not exceeding $2456 per day
48
How are Costs Addressed?
Committal Proceedings - the use of committals for indictable offences allows for filtering out of weaker cases. Also prompts early guilty plea which will resolve the matter faster and result in decreased legal costs for the accused
Plea Negotiations - allows the opportunity for the accused to discuss with the prosecution a plea to lesser or fewer charges and promotes an early resolution for the case resulting in decreased costs for the accused
49
Causes of Delays
Court backlogs - the caseload of Vic courts continuously grows. In 2021-2022, 83,000 criminal cases were waiting to be heard by Magistrates across Vic
Trial procedures - the question-and-answer process for evidence during trial can take significant time to be presented
Judges giving directions to juries under the Juries Directions Act 2015
The CC estimates that a case will take 14 - 16 months to be ready for trial
50
Impacts of Time (Delays)
For a victim the longer a case is delayed the longer their suffering. In this period of limbo there's no closure or certainty that justice will be served
For a witness giving evidence in a criminal trial can be extremely stressful and as such delays can add to this stress. Additionally, witness memory may fade over time limiting accuracy and reliability of witness testimonies
For an accused as trails often rely on oral evidence and witness memories may fade limiting accuracy and reliability of witness testimonies when the accused is held in remand increased delays can limit their freedom
51
How are Delays Addressed?
Plea Negotiations - allowing the accused to plead guilty meaning no trial occurs and the accused can await sentencing allowing for a more efficient resolution of disputes
Judge Alone Trials - introduced during Covid19 temporary legislation allowed for indictable matters to be heard by judge alone provided that the accused consented, obtained legal advice and the court considered it in the interest of justice. This saves time by not having to empanel a jury or explain complex legal processes to them
52
Cultural Differences
Cultural factors are the challenges that arise for individual's w/n the criminal justice system due to their cultural background
Different groups w/n society may have difficulty engaging in the criminal justice system due to their cultural backgrounds. These groups can include;
> Asylum seekers and refugees
> Migrants
> FNP
53
Impact of Cultural Differences
Refugees and Recent Migrants - English is not their first language making it difficult to give oral evidence/self-represented partes may find it very difficult to prepare their case and file court documents
In other cultures, the retelling of sexual abuse or domestic violence can be considered a shame on the family and hence highly discouraged as it is seen as dividing the family
FNP - in FN cultures it is considered taboo to speak of certain things such as names of deceased people or menton gender-based knowledge in front of other genders
54
How are Cultural Differences Addressed?
The use of the Koori Court - aims to provide FNP offenders with access to culturally relevant sentencing that more effectively acts to reduce reoffending
Interpreters - are avalable to all accused persons and the onus to pay and arrange for an interpreter is on the courts as it allows non-English speakers to better understand court procedures w/out having to pay significant expenses
55
Sanctions
A penalty imposed on an offender when they plead or are found guilty of a crime
56
Purposes of Sanctions
The Sentencing Act 1991 (Vic) establishes the sentencing authority of courts to impose sanctions and outlines the 5 purposes in which judges should consider when handing down a sentence:
> Tp rehabilitate the offender
> To punish the offender
> To deter the offender and the community from committing the crime
> To denunciate the action on behalf of the community
> To protect the community from the offender
57
Purposes of Sanctions
Rehabilitation
In the criminal justice system rehabilitation adopts the perspective that there's a cause/reason/'driver' to the offenders actons which can be restored or addressed through the criminal justice system.
It aims to provide a framework of support for the offender and can be embedded within sanctions. Research has shown that should rehab be successful the rate of recidivism is greatly reduced.
e.g. a cause of a criminal offence could be;
> lack of work opportunities
> drug or alcohol addiction
> mental illness that has not been addressed
And may be 'cured' by attending educational classes to increase skills, counselling or anger management
58
Purposes of Sanctions
Punishment
Punish = to inflict pain/loss or an inconvenience to ensure the offender is penalised proportionally and held accountable for their actons.
It should take into consideration the impact of their crime on victims, their families, the nature of the offence and society.
Punishment can be viewed as society seeking retribution for the offender's actions.
e.g. the max. sentence for murder is life imprisonment and for manslaughter or rape it is 25 years
59
Purposes of Sanctions
Deterrence
Deterrence - the act of discouraging an offender or other individuals from reoffending or committing similar crimes through criminal sanctions
Specific deterrence - targets the offender and attempts to discourage them from reoffending.
General deterrence - this targets the community by seeing what sanctions the offender has received for their offence this will hopefully discourage others from committing the same action.
60
Purposes of Sanctions
Denunciation
Denunciate - to publicly condemn an offender's behaviour to show society's disapproval
The court denounces the offender's actions to highlight the extent to which the offender has violated the moral and ethical standards of society. This can occur during a judge's statement at the end of the hearing or trial.
61
Purposes of Sanctions
Protection
Protection - to ensure that the offender does not pose a significant risk to the welfare and safety of their victims and broader society.
e.g. imprisonment whereby the prisoner is removed from the community and held in custody until a non-parole period is achieved
62
Types of Sanctions
The Sentencing Act 1991 (Vic) is the legislation that outlines the types of sanctions that judges can impose after the accused has pleaded or been found guilty. The purpose of the act is to:
> Promote consistency
> Provide fair and transparent procedures
> Prevent crime and promote respect for the law
The three types of sanctions are:
> Fines
> Community Corrections Orders
> Imprisonment
63
Sanctions
Fines
Fines are a sanctions that requires the offender to make a monetary payment as a penalty for a criminal offence.
They are calculated based upon penalty units. E.g. common assault carries a maximum of 15pu or 3 months imprisonment
1pu = $192.31
Factors considered for the amount given:
> purpose the court wishes to achieve
> aggravating and mitigating factors
> offenders ability to pay a fine
Where does the money go?
To the government, to court funds, to resource charities or to legal resources
64
Fines and the Purposes of Sanctions
Punishment
+ A substantial fine should impose a burden on the offender and punish them
- However if the offender has excessive funds, a fine may not cause a significant impact on the offender
General deterrence
+ A larger fine is more likely to deter members of the community
Specific deterrence
+ The fine should be high enough that it deters the offender from reoffending
- A fine too high for someone who does not have the resources to pay may encourage the offender to reoffend to pay back the fine
65
Sanctions
Community Corrections Order (CCO)
CCO is a non-custodial order by the court that allows the offender to remain within the community with certain conditions attached. A CCO may be imposed alongside a fine or served after imprisonment.
A CCO can be imposed when the offence is punishable by 5pu or more, the judge believes a fine alone is not appropriate, the offender agrees.
A CCO can last for a single offence a max. of 2 years and for multiple offences up to 5 years.
66
Conditions of CCOs
Standard
> not reoffend for the duration of the CCO
> not leave Vic without permission
> notify supervisor of change of address
> comply with CCO directions
Additional
> abide by a curfew
> undertake medical treatment or rehabilitation programs for drug or alcohol abuse
> ankle monitoring
67
CCOs and Purposes of Sanctions
Punishment
+ A longer CCO punishes and offender by restricting their liberty
- There is not a complete loss of liberty so not fully punished
Rehabilitation
+ Conditions imposed such as mandatory rehabilitation
- Offender may not actively participate in programs
Denunciation
+ Conditions imposed may send strong msgs of community disapproval, such as ankle .monitoring
68
Sanctions
Imprisonment
A sanction that removes an offender from the community and places them in prison for a given period. Usually comes with a minimum period whereby the offender can apply for parole, the early release after minimum term subject to supervision and certain conditions
69
Concurrent Prison Sentences
A sentence of imprisonment that is served at the same time as another when the offender is convicted of more than one crime
70
Cumulative Prison Sentences
A sentence of imprisonment that is served one after the other
71
Conditions of Imprisonment
> Loss of personal freedom
> Loss of income and job prospects
> Inability to see fam and friends other than through visitation
> Rehab programs
Imposed for arson (max. 15 years) or theft (10 years)
72
Imprisonment and Purposes of Sanctions
Punishment
+ A longer prison term acts as a greater restriction on freedom and therefore may act as a greater inconvenience to the offender
Specific Deterrence
+ A longer prison term acts as a greater loss of personal liberty and therefore may specifically deter the offender form offending again
General Deterrence
+ A longer term may deter the community from committing similar criminal offences
- The specific case circumstances may be unique and thus not deter the community from committing a criminal offence
Rehabilitation
- A longer prison term may restrict the ability to achieve rehab due to spending a long time in a custodial environment
73
Factors in Sentencing
When sentencing an offender, the courts consider a wide range of factors that are listed in the Sentencing Act 1991 (Vic) to assist in determining an appropriate sanctions for the offender including aggravating factors, mitigating factors, a guilty plea and victim impact statements (VIS)
74
Aggravating Factors
Are facts or circumstances about the offender or the offence that tends to increase the offender's culpability and therefore likely increase the severity of their sentence
E.g.
> whether the crime was planned/premeditated
> the degree of brutality and cruelty, the offence was unprovoked or an act of domestic violence
> the offender has prior convictions
> crime was committed in front of children
75
Mitigating Factors
Are circumstances that a court should consider when determining the appropriate sentence. These can be circumstances relevant to the offender, the victim or the crime itself and may decrease the offenders culpability and likely lead to a less severe sanction.
E.g.
> genuine remorse
> the crime is a result of provocation
> no prior criminal history
> cooperating with the police
76
Guilty Plea
A full admission of guilt by the accused of some or all charges.
If an accused pleads guilty during pre-trial proceedings (committals) then a trial will not be conducted. If an accused pleads guilty during the trial and the plea is accepted then the trial is adjourned and the offender moves to sentencing.
A sentencing discount is a reduction in the offenders sentence that they receive for pleading guilty to an offence. In some cases the court may state the sentence and what it would have been if the accused did not plead guilty.
77
Benefits of an Early Guilty Plea
Prosecution
> does not have to prove the guilt of the accused
Society
> saves costs and time involved in conducting a trial
Victims
> avoids the stress and trauma involved in going to trial
Courts
> workloads are reduced minimising delays in other criminal matters that go to trial
78
Victim Impact Statements (VIS)
Are a written or verbal statement made to a court about the effect of the offence on the victim.
A VIS may include;
> the physical impacts - the degree of injury
> emotional loss
> financial loss
> can incorporate photos to demonstrate the extent of the loss
A VIS may be given by those directly impacted by e offence or by those not directly impacted e.g. a victims family
If a VIS demonstrates significant impact on the victim the court will most likely increase the severity of the sanction.
If a VIS indicates the victim forgives the offender this may result in a decreased severity of sanction
