Chapter 3 - Key concepts in the Victorian criminal justice system Flashcards
criminal justice system
a set of processes and institutions used to investigate and determine criminal cases
accused
a person charged with a criminal offence
sanction
a penalty (e.g. a fine or prison sentence) imposed by a court on a person guilty of a criminal offence
imprisonment
a sanction that involves removing the offender from society for a stated period of time and placing them in prison
offender
a person who has been found guilty of a criminal offence by a court
Australian Constitution
a set of rules and principles that guide the way Australia is governed. The Australian Constitution is set out in Commonwealth of Australia Constitution Act
Commonwealth offences
crimes that break a law passed by the Commonwealth Parliament
statute
a law made by parliament; a bill that has passed through parliament and has received royal assent (also known as legislation or an Act of Parliament)
prosecution
the party that institutes criminal proceedings against an accused on behalf of the state. The prosecution team includes the prosecutor
prosecutor
the representative of the prosecution who is responsible for conducting the criminal case and appearing in court
Office of Public Prosecutions (OPP)
the Victorian public prosecutions office that prepares and conducts criminal proceedings on behalf of the Director of Public Prosecutions
Director of Public Prosecutions (DPP)
the independent officer responsible for commencing, preparing and conducting prosecutions of indictable offences on behalf of the State of Victoria
jury
an independent group of people chosen at random to determine questions of fact in a trial and reach a decision (i.e. a verdict)
summary offence
a minor offence generally heard in the Magistrates’ Court and determined by a Magistrate. The final hearing is known as a hearing and the accused does not have the right to a trial by jury. Listed in the Summary Offences Act 1966 (Vic), among other statutes and regulations.
indictable offence
a serious offence generally heard before a judge and a jury in the County Court or Supreme Court of Victoria. Listed in the Crimes Act 1958 (Vic). Final hearing is known as a trial. Involves committal proceedings.
committal proceeding
the pre-trial hearings and processes held in the Magistrates’ Court for indictable offences
committal hearing
a court hearing that is held as part of the committal proceeding in the Magistrates’ Court. At a committal hearing, the magistrate will decide whether there is sufficient evidence to support a conviction for the offence charged
indictable offence heard and determined summarily
a serious offence that is dealt with as a summary offence if the court and accused agree. Offences that this applies to can be found in the *Criminal Procedures Act 2009 (Vic)
burden of proof
the obligation (i.e. responsibility) of a party to prove a case. The burden of proof usually rests with the party who initiates the action (i.e. the plaintiff in a civil dispute and the prosecution in a criminal case), but may be reversed in certain cases.
standard of proof
the degree or extent to which a case must be proved in court
beyond a reasonable doubt
the standard of proof in criminal cases. This requires the prosecution to prove there is no reasonable doubt that the accused committed the offence
balance of probabilities
the standard of proof in civil disputes. This requires the plaintiff to establish that it is more probable (i.e. likely) than not that their claim is true
presumption of innocence
the right of a person accused of a crime to be presumed not guilty unless proven otherwise
common law
law made by judges through decisions made in cases. Also known as case law or judge-made law (as opposed to statute law)
Human Rights Charter
the Charter of Human Rights and Responsibilities Act 2006 (Vic). Its main purpose is to protect and promote human rights
international treaty
a legally binding agreement between countries or intergovernmental organisations, in which they undertake to follow the obligations set out in the agreement and include them in their own local laws (also known as an international convention)
remand
the situation where an accused is kept in custody until their criminal trial can take place
bail
the release of an accused person from custody on condition that they will attend a court hearing to answer the charges
statute law
law made by parliament; also known as Acts of Parliament or legislation (as opposed to common law)
victim
a person who has suffered directly or indirectly as a result of a crime
Victims’ Charter
the Victims’ Charter Act 2006 (Vic), which recognises the impact of crime on victims and provides guidelines for the provision of information to victims
alternative arrangements
measures that can be put in place for witnesses in certain criminal cases (e.g. as sexual offence cases) to give evidence in a different way (e.g. via video link)
complainant
a person who makes a formal legal claim that another person has committed a criminal offence against them
Victims Register
a register (i.e. database) maintained by the state of Victoria set up to provide the victims of violent crimes with relevant information about adult prisoners while they are in prison (e.g. the prisoner’s earliest possible release date)
parole
the supervised and conditional release of a prisoner after the minimum period of imprisonment has been served
Right to be tried without unreasonable delay
An accused is entitled to have charges heard in a timely manner and any delays incurred should be considered reasonable (not specifically defined but depends on the case and circumstances. e.g. multiple accused, crime scenes, few to no witnesses etc). This right is protected by section 21(5) of the Human Rights Charter. In place because people have a basic right to liberty and security, and accused persons are presumed innocent until proven guilty.
Sex offences - 3 months
Summary - 12 months
Children - ASAP
Right to silence
An accused is not required to answer questions or give information as part of an investigation (other than provide their name and address), nor do they have to answer questions, give evidence, file any defence or call a particular witness in court. Silence is not to be interpreted as guilt. No adverse inferences can be drawn from this. Protected by common law and statute law (e.g. section 89 of the *Evidence Act 2008 (Vic).
Right to trial by jury
A person charged with an indictable offence is entitled to be tried by their peers, in the form of a trial by jury. This involves a jury of 12 who have been randomly selected from the electoral roll hearing the case and determining whether the accused is guilty. This right is protected by section 80 of the Australian Constitution as well as the *Criminal Procedures Act 2009 (Vic) and *Juries Act 2000 (Vic)(but not the Charter)
The right to give evidence using alternative arrangements
In cases involving: - a sexual offence - a family violence offence - an offence for obscene, indecent, threatening language or behaviour in public - an offence for sexual exposure in a public place
alternative arrangements may be made which allows the victim/witness to give evidence in a different way. e.g.: - give evidence using closed-circuit television (or other like facilities) (evidence is recorded) - screens may block the accused from the line of sight of the witness - Limited people (specified by the court) allowed in while evidence is being given - court approved support person may be chosen by the witness to sit beside them while giving evidence as emotional support - Legal practitioners dressed informally (not in robes) - Legal practitioners remain seated while questioning witness
Purpose: to reduce secondary trauma, distress, and intimidation.
Protected by the Criminal Procedure Act
The right to be informed about proceedings
The Victims’ Charter requires investigatory agencies (police), prosecuting agencies (DPP) and victims services agencies (Victims of Crime Commissioner) to provide clear, timely and consistent information about support services, possible compensation entitlements and the legal assistance available to persons adversely affected by crime. Investigatory agency also required to inform a victim about the progress of an investigation (unless it may put the investigation at risk or the victim does not want to be informed)
Prosecution must give: - details of offence accused is charged with - if no offence is charged, the reason - how the victim can find the date, time, and place of the hearing - the outcome of the criminal proceeding, including any sentence imposed - details of any appeal
Victims may want this information to see justice done.
The right to be informed of the likely release date of the offender
A person who is a victim of a criminal act of violence may apply to be on the victims register. Those on the register may receive certain information including: - being told at least 14 days before the prisoner is released on parole
and have the right to: - know the length of the sentence - be told if the prisoner escapes - to make a submission if the imprisoned offender may be released on parole
So the victim can feel safer.
Protected by the Victims’ Charter and the Corrections Act
