Balance between institutional powers and individual rights

Question 1

Factors that influence the balance between institutional powers and individual rights:

Answer 1

• Arrest
• Questioning
• Bail
• Court proceedings
• Imprisonment

Question 2

Arrest

Answer 2

The process of charging an accused with a crime and taking them into custody.

Question 3

Arrest - Institutional Powers

Answer 3

• police have the power to arrest the offender once a crime has been committed if it is believed that they have committed a crime, with or without a warrant
• reasonable force can be used to arrest an accused.

Question 4

Arrest - Individual Rights

Answer 4

• an individual can refuse to go to the police station unless they are under arrest
• have the right to be told why they are being arrested and the right to be brought before a court without unreasonable delay
• also has the right to remain silent and only disclose their name and address

Question 5

Questioning

Answer 5

If a person has been arrested and is in custody that person will be questioned to determine their involvement in the crime, this must be done in a reasonable amount of time.

Question 6

Questioning - Institutional Powers

Answer 6

• under the Crimes Act, police can question a person who has been arrested and is in custody
  -the person is questioned to determine what involvement they had, if any

Question 7

Questioning - Individual Rights

Answer 7

An individual:
- has the right to remain silent and not respond to any questions
- must be informed that anything they say can be recorded and used as evidence against them in court
- must be informed that they can communicate with or attempt to communicate with a friend or relative and lawyer
- has the right to be questioned within a reasonable time after being arrested
If an individual is under 18, a parent or guardian must be present during the questioning.

Question 8

Bail

Answer 8

Involves the release of an accused from custody while awaiting to attend court. The decision to grant bail or keep an accused in custody will depend on the circumstances.

Question 9

Bail - Institutional Powers

Answer 9

• the Bail Act 1977 (Vic) sets out rights and procedures with regards to bail
• the decision to grant or refuse bail is normally determined by either a court, a bail justice or a police officer.

Question 10

Bail - Individual Rights

Answer 10

• upholds the Presumption of Innocence, meaning that an accused is considered innocent until proven guilty
• a person is entitled to apply for bail and may sometimes be granted with conditions such as surrendering their passport, reporting to the police station, living at a specific address.
  -may be revoked when the accused has breached bail conditions
• bail will be refused if the accused is charged with an offence such as murder, it may also be refused where the accused is seen as a danger to the community, re-offence or flee.

Question 11

Court proceedings

Answer 11

The Magistartes Court hears summary offences and will also determine whether there is enough evidence for an indictable offence to be heard in the County or Supreme Court, through a committal proceeding.

Question 12

Court proceedings - Institutional Powers

Answer 12

• the prosecution has the power to prepare the case by collecting evidence and speaking with witnesses
• they may also initiate negotiations with the accused in order to obtain an early guilty plea.

Question 13

Court proceedings - Individual Rights

Answer 13

An accused involved in criminal proceedings has the right to:
- be presumed innocent until proven guilty
- have a hearing before an impartial court
- be tried without reasonable delay
- legal aid and interpreter services if needed

Question 14

Imprisonment

Answer 14

Imprisonment is a sanction where the offender has been found guilty of a crime and is removed from society and kept in jail for a period of time.
- prison sentences will vary depending on the crime and the individual circumstances.

Question 15

Imprisonment - Institutional Powers

Answer 15

• prison management is governed by the Corrections Act 1958 (Vic)
• prisons are managed by Corrections Victoria, part of the Victoria Government.

Question 16

Imprisonment - Individual Rights

Answer 16

Under the Corrections Act, Prisoners have a range of rights including:
- the right to be outside for at least one hour a day
- access to medical care
- be provided with adequate food and clothing
- practice a religion
- receive visitors
Young people in prisons have similar rights.