Chapter 3: Key concepts in the Victorian criminal justice system

Question 1

Define a summary offence

Give an example

Answer 1

A minor criminal offence that is generally heard in the Magistrates’ Court (no jury).

Examples include drink driving, disorderly conduct and minor assualts.

Question 2

Define an indictable offence

Give an example

Answer 2

A serious criminal offence that is generally heard in the County Court or Supreme Court before a judge and jury.

Examples include muder, sexual offences drug trafficking.

Question 3

What courts can hear an indictable offence heard and determined summarily?

Answer 3

Magistrates’ Court, County Court, Trial Division

Question 4

What are the two conditions for an indictable offence to be heard and determined summarily?

Answer 4

1. Magistrate must be satisfied that it is appropriate to determine the case summarily {Magistrate takes into account likely sentence IF accused is found guilty]
2. Accused consents [because giving up right to trial by jury for an indictable offence]
   [not an offence that is punishable by up to 10 years’ imprisonment]

Question 5

What are the five factors that distinguish between a summary offence and an indictable offence?

Answer 5

1. Seriousness of offence [look at maximum sentence]
2. Court that hears case
3. Whether there is a jury
4. Act that creates offence
5. Whether there are committal proceedings/committal hearing

Question 6

What are committal proceedings?

Answer 6

Pre-trial procedures that are held in the Magistrates’ Court for indictable offences that will go to trial in the County Court or Supreme Court

Question 7

What are the three things that happen at committal proceedings?

Answer 7

1. If accused has been charged with indictable offence heard and determined summarily, magistrate decides whether to hear offence summarily
2. Accused pleads guilty or not guilty
3. Magistrate decides whether or not to commit accused to trial

Question 8

What is the test for a magistrate to commit an accused for trial?

Answer 8

Prosecution’s evidence must be of sufficient weight that a jury could convict the accused at trial.

Question 9

At a committal hearing does the magistrate decide whether the accused is guilty?

Answer 9

NO!

Question 10

Who are the parties in a criminal case?

Answer 10

The prosecution and the accused.

Question 11

How is a hearing different from a trial?

Answer 11

A hearing is held in the Magistrates’ Court to decide whether an accused is guilty or not guilty. A trial is held (with a jury) in the County Court or **Trial Division* to decide whether an accused is guilty or not guilty.

Question 12

What is the presumption of innocence?

Answer 12

An accused person is presumed to be innocent until they are proven guilty.

Question 13

What is the burden of proof?

Answer 13

The burden of prrof refers to which party has the responsibility to prove the facts of the case. In a criminal case, the proesuction has the burden of proof.

Question 14

How does the burden of proof in a criminal case uphold the presumption of innocence?

Answer 14

If a person is presumed to be innocent, then they do not have to prove that they are actually innocent. Instead the prosecution has the burden of proof, which means that it is the responsibility of the prosecution to prove that the accused is in fact guilty.

Question 15

What is the standard of proof?

Answer 15

The standard of proof refers to the level of certainty or strength of evidence required to prove the case. In a criminal case, the prosecution must prove beyond reasonable doubt that the accused committed the offence.

Question 16

How does the standard of proof in a criminal case uphold the presumption of innocence?

Answer 16

If a person is presumed to be innocent, and there is another reasonable explanation for what happened which is consistent with the accused’s innocence, then the accused is entitled to the benefit of that other explanation. This is consistent with the standard of proof in a criminal case being “beyond reasonable doubt”,

Question 17

Identify the three rights of an accused and the source(s) of each right

Answer 17

1. Right to be tried without unreasonable delay Source: Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) (VCHRR)
2. Right to silence
   Source: common law, VCHRR
3. Right to trial by jury
   Source:* Criminal Procedure Act 2009 (Vic), *Constitution (s.80)

Question 18

What phrase you would use to describe “without unreasonable delay”?

Answer 18

In a timely manner,.

Question 19

What are the two protections included in the right to silence and, in each case, how is the right to silence protected?

Answer 19

1. An accused has the right to refuse to answer any questions asked by the police except that the accused must give their name and address
   * the fact that an accused has exercised their right to silence by refusing to answer questions asked by the police cannot be used as evidence at their trial that the accused is guilty: Evidence Act 2008 (Vic)
2. An accused cannot be forced to give evidence at their trial
   * where an accused exercises their right to silence by not giving evidence at their trial, the trial judge should direct the jury that the jury cannot use that as evidence that the accused is guilty: Jury Directions Act 2015 (Vic)

Question 20

If an accused has been charged with murder, what is the source of the accused’s right to trial by jury?

Answer 20

Criminal Procedure Act 2009 (Vic)

Question 21

Identify the three rights of victims and the source(s) of each right

Answer 21

1. The right to give evidence using alternative arrangements
   Source: Criminal Procedure Act 2009 (Vic)
2. The right to be informed about the proceedings Source: Victims Charter Act 2006 (Vic)
3. the right to be informed of the likely release date of the offender
   Source: Victims Charter

Question 22

What offences do alternative arrangements apply to?

Answer 22

Sexual and family violence offences.

Question 23

Give one example of an alternative arrangement

Answer 23

• Victim may give evidence from behind screen so they cannot see the accused
• Victim may give evidence from a place other than court room (closed circuit television)

Question 24

What is the main purpose of alternative arrangements?

Answer 24

To ensure a fair verdict by enabling the victim to give reliable evidence by minimising the stress and intimidation that the victim may feel when giving evidence.

Question 25

Give one example of information about the proceedings a victim is entitled to and identify the agency that must provide that information

Answer 25

• the charges laid against the accused and the acceptance of a guilty plea to lesser charges – prosecuting agency
• where the victim is a witness, information about the court process, their role as a prosecution witness, any alternative arrangements available to the victim, and the victim’s right to remain in the courtroom after giving evidence – prosecuting agency

Question 26

To be entitled to be informed about the release date of an offender, a victim must be included on the Victims Register. Victims of what types of crimes are able to be included on the Victims Register?

Answer 26

Criminal acts of violence, eg. rape, aggravated burglary (ie. burglary with a weapon), kidnapping and culpable/dangerous driving causing death.

Question 27

Is a victim on the Victims Register entitled to be informed about when the offender is released on bail and/or parole?

Answer 27

Parole only.

Question 28

Who is a plea negotiation between?

Answer 28

Prosecution and accused.

Question 29

Is a plea negotiation about sentencing?

Answer 29

NO!

Question 30

What are the three purposes of plea negotiations?

Answer 30

1. Ensure certainty of the outcome of a criminal case
2. Save the costs, time and resources of a trial/hearing
3. Promptly resolve a criminal case without the stress, trauma and inconvenience of a trial/hearing

Question 31

What is the overarching consideration for whether a plea negotiation is appropriate?

Answer 31

The public interest.

Question 32

What are the six main factors that the prosecution needs to take into account in deciding whether a plea negotiation is appropriate in the public interest?

Answer 32

1. Cooperation of accused
2. Strength of prosecution case
3. Relationship between charge and accused’s criminality – do lesser adequately reflect the accused’s criminality and allow for the imposition of an appropriate sentence
4. Reluctance of prosecution witness to give evidence
5. Possible disadvantages of full trial, including stress/trauma, cost and time
6. Victim’s views – not determinative