Bodies Flashcards
If individual or company has broken the law by committing a crime, the person or company is brought to justice.
Bodies
Individual or company have broken law by committing a crime, then the person or company is brought to justice
Police
Serve the community and the law to enforce criminal law
police:
preserve peace
prevent crime
Delegated bodies
An authority or agency given power to make and enforce laws
If laws are broken, enforced by
warnings, directing person, rehabilitation, legal proceedings
Fairness
people can participate in justice system and processes should be impartial and open
impartial : no bias
open : accountability of actions
equality
people should be treated in the same way, but if the same treatment causes disparity or disadvantage, adequate measures should be taken to allow all to engage with the justice system without disparity or disadvantage
access
all people should be able to engage with the justice system and its processes on an informed basis
formal: individuals treated the same regardless of personal characteristics
different : special measures
Powers and rights
Australians are entitled to a number of rights and freedoms
courts
federal and state courts
state courts deal with issues arising under state law
federal courts deal with issues arising under federal courts
Arrest
- Once a crime has been committed the police have the power to arrest an accused person
- The power of arrest with or without a warrant is found in the Crimes Act 1958 (Vic)
- Most are made without a warrant
Determine criminal case
If accused pleads not guilty then it’s the role of the courts to determine whether the accused is guilty
Individuals in an arrest
Can refuse to attend a police station unless under arrest. Must be informed of the reason for their arrest at the time of the arrest and be promptly informed of any proceedings against them
process
charged with an indictable offence first go to magistrates courts for a committal proceeding
Questioning
- if a person has been arrested and is in custody for being suspected of committing an offence, an investigating official has the power to question them within a reasonable time
- May be questioned to determine what involvement they had in the offence if any
courts role
provides specialisation and expertise in the type of case its hearing
imposing sanctions
accused pleads guilty or is found court sets out a date for hearings
both parties discuss
facts
circumstances
Court proceedings
For summary offences,
the Magistrates’ Court hears and determines the charged and the magistrate determines guilt
Court proceedings
For indictable offences,
the Magistrates’ Court determines whether there is enough evidence to a support a conviction at trial before the matter is transferred to the County or Supreme Court
The jury
independent group of people chosen at random to determine questions in a trial based of facts and evidence provided
Imprisonment of the offender
If found not guilty, accused is released immediately
● If found guilty, the court’s role is to impose a sanction
● The sanction of last resort is imprisonment -> involves removing the offender from society and placing them in jail for a period of time
Groups we will focus on who struggle with the justice system are:
First Nations people
● Young people
● Culturally and linguistically diverse people
● Disabled people
when are Jurys used
used in court and supreme courts
what does criminal jury consist of
12 jurors
over 18
randomly selected
Overrepresentation in the justice system
indigenous ppl
Comprise 3.8% of the Australian population
● However, make up 32% of the prison population
● In Victoria, 9% of the prison population is Indigenous
● Account for only 1% of Victoria’s population
● Indigenous children and young people account for about 15% of children and young people under supervision
role of criminal jury
-Listen to all evidence
-Concentrate during trial
-Decide whether accused is guilty or not guilty based off evidence
Difficulties faced
Cultural differences
Differences in customary law and the criminal justice system
Customary law: the body of norms, practices, and beliefs that a local community or group of people accept as legal requirements or rules of conduct
In customary law, Elders are involved in sentencing an offender and may even carry out the punishment
Language barriers
`Not all speak English as their first language
● May speak an Aboriginal language or Aboriginal English
● Aboriginal English uses words differently and the accent is different
● This means an interpreter will likely be required for the criminal justice system
young people
Describes those less than 25 years old
Suspected or accused
● Victim
● Witnesses
● Particularly in cases involving family or domestic violence and abuse
Difficulties faced
young people
Some have a one-off incident, others become adult offenders
● The younger the child was when first sentenced, the more likely they are to reoffend
● Young people can also be victims and witnesses of crime
punishment
designed to penalise offender, show society and victim that criminal behaviour will not be tolerated
Lack of understanding
young people
Many young people struggle to access the justice system because they are not able to understand the system and therefore properly engage with it
● The language and processes used are catered for adults
● Use of complex vocabulary and questions
deterrence
designed to discourage offender and others in community from committing similar offences
Culturally and linguistically diverse people
Culturally and linguistically diverse people (CALD)
● Refers to those from non-English speaking countries
denunciation
designed to demonstrate the community’s disapproval of the offenders actions
sentence that is harsh enough to show disapproval
Disabled people
prevent people with certain characteristics, including disabilities, from being discriminated against
protection
designed to safeguard community from an offender by preventing them from committing a further offence
rehabilitation
designed to reform an offender in order to prevent them from refunding offences in the future
types of sanctions
custodial : offender removed from society
non -custodial - serves the sentence within community
Define disability as:
● Total or partial loss of a bodily function
● A total or partial loss of a part of the body
sanctions
imposed restrictions on individuals, based off actions committed by offender
Imprisonment
sanction that involves removing the offender from society for a stated period of time and placing them in prison
● The most serious sanction that can be imposed
Conditions of Imprisonment
Parole
Parole is an early release from prison
● Where an offender has been imprisoned for a term of 2 or more years, the court must fix a non-parole period
fines
momentary penalty that is paid by offender to state of Victoria
conditions : court can order its paid instalments
purpose : punish offenders
Purposes of imprisonment
Punishment is a major purpose -> freedom taken away
● Protection is a major purpose as the offender is removed from society
Sentencing factors
Appropriateness
● When sentencing an offender, the court must ensure the sentence that is given is appropriate to the crime commit
Aggravating factors
acts or circumstances about an offender or an offence that can lead to a more severe sentence
CCO
Communist correction orders
flexible, non custodial sentence served in community
imposed: punishable by more than 5 penalty units
purposes : act to punish conditions, burden or annoyance
Mitigating factors
facts or circumstances about the offender or the offence that can lead to a less severe sentence
Alternative sentencing approaches
The Drug Court
● The Koori Court
● Diversion programs
Diversion programs
available in magistrates and children’s court for summary offences, intended for first time offenders
eligibility : accessed must acknowledge to the magistrate court responsibility for offences
process : Onus (responsiblity) is on the offender to ask for a diversion
diversion plan may involve
written letter of apology to victim
donate or do some other service such as community work
the drug court
Process
● Involves determining the offender’s location, prior and current offences, whether drug/alcohol abuse is a significant factor and whether the accused is willing to participate
DATO
An order that aims to rehabilitate the offender by providing a judicially supervised, therapeutically oriented drug and alcohol treatment program
Effectiveness of the drug court
Benefits both participants and the community
The Koori Court
Is a sentencing court available to a first nations accused person
● Aims to provide an informal atmosphere for sentencing and to allow representation from the First Nations community in the sentencing process
Eligibility The Koori Court
The accused must be an Indigenous person
● The offence must be within the jurisdiction of the relevant court
● The offence must not be a sexual offence
● The accused must intend to plead guilty or has pleaded guilty
Effectiveness The Koori Court
The experiences of the offenders were improved
● There was a need to have greater participation of service providers such as those who provide drug and alcohol services
Social cohesion
the willingness of members of society to cooperate with each other in order to survive and prosper
Role of laws
Provide guidelines on what behaviour is acceptable and not acceptable
With no laws there would be no boundaries
Role of individuals
Ensure that they are aware of the laws and abide by them
Before acting, people must ensure that they are informed and know the relevant laws
Role of the legal system
Applying the law and enforcing it are two of the roles of the legal system
Characteristics of an effective law
Laws must be enforceable
It must be possible to catch, punish or sue people who break the law
Characteristics of an effective law
Laws must be known
The public must know about the law for it to be effective
You can’t follow a law if you don’t know it
Characteristics of an effective law
Laws must be clear
Laws must be written in a way that people can understand, and the intent of the law must be clear
Characteristics of an effective law
Laws must be stable
Laws can’t chop and change constantly
This may lead to uncertainty and confusion and people may not follow the law
Statue law
Law made by parliament is referred to as statue law
Subordinate authorities
Subordinate authorities refer to bodies with delegated power
E.g. councils make law about pet ownership and rubbish removal
Victorian court hierarchy
The higher courts hear more serious and complicated cases
The lower courts hear less serious and complicated cases
Reasons for the court hierarchy
Specialisation and expertise
Different courts specialise in different types of cases and develop expertise in these
E.g. Magistrate’s court specialises in minor offences, such as drink driving
Reasons for the court hierarchy
Appeals
An application to a higher court to review the ruling of a lower court
Reasons for the court hierarchy
Administrative convenience
Allows for efficiency and convenience in the way cases are heard
Reasons for the court hierarchy
Doctrine of precedent
Means that courts follow previous decisions when deciding similar cases, ensuring consistency and predictability in law
Statutory interpretation
A statute is often written in general terms to apply to all types of situations
Binding precedent
One that must be followed by a lower court in the same court hierarchy
Persuasive precedent
Precedent of a lower court or equal within the same hierarchy or one in a different hierarchy that may be considered and influence the judgement
Presumption of innocence
The right of a person accused of a crime to be presumed not guilty until proven otherwise
How is it protected?
The burden of proof is on the prosecution
The prosecution must present evidence to the court to prove the guilt of the accused, rather than the accused being required to prove their innocence
Age of criminal responsibility
A person under 10
can’t be charged with a crime
Age of criminal responsibility
A person between 10-13
can be charged with a crime if the prosecution proves the child knew their actions were wrong at the time of the crime
Burden of proof
The responsibility to prove the facts of a case
Generally, held by the person who initiates the case or brings the case to court
Standard of proof
The strength of evidence needed to prove a legal case
In criminal law it’s beyond reasonable doubt
Summary offences
Minor offences generally heard in the Magistrates’ Court
Less serious in nature
Indictable offences
Serious criminal offences heard by a judge (and a jury if the accused pleads not guilty) in either the County or Supreme Court
Two main participants in crime
Principal offender
The accessory
Principal offender
A person who carries out the actus reus (the guilty act) and has therefore directly committed the crime Any person who is involved in a crime is also considered a principal offender
Includes anyone who intentionally assists, encourages or directs another person to commit the crime
Accessory
A person who does an act to help another person who has committed a serious indictable offence to avoid being apprehended, prosecuted, convicted or punished
To be an accessory, a person must believe or know that the offender has committed a serious indictable offence (one that is punishable by five years or more in prison)
Culpable driving causing death
the act of causing death of another person while driving a motor vehicle in a negligent or reckless manner or while under the influence of drugs or alcohol
