Chapter 4: Determining a Criminal Case Flashcards
Who is Victoria Legal Aid (VLA)?
A government agency that provides free legal advice to the community and low-cost or no-cost legal representation to some people who cannot afford a lawyer.
Why is there a need for government-funded institutions such as VLA?
If accused has no experience with criminal justice system and cannot understand their rights or the key concepts of criminal law, the principle of access and their right to a fair trial may be compromised.
Thus, VLA is needed to assist the accused - especially if they cannot afford legal assistance.
What is the VLA’s ‘vision’?
A fair and just society where rights and responsibilities are upheld; more focus on prevention and early resolution of legal problems.
What are the VLA’s objectives?
- provide legal aid efficiently
- manage its resources to make legal aid available at a reasonable cost to the community and on an equitable basis throughout Victoria
- improved access to justice and legal remedies
- minimise the need for individual legal services in the community.
What is legal aid?
Legal advice, education or information about the law and the provision of legal services (including legal assistance and representation)
How does the VLA assist accused persons?
- Publishing legal information to assist those who are charged with minor offences and will be required to represent themselves.
- Providing legal advice about the law and how it applies to a particular case
- Providing legal representation for accused persons charged with serious indictable offences
- Providing duty lawyers (lawyers based in the Magistrates’ and Children’s Court)
THIS LINKS TO THE 4 TYPES OF LEGAL AID!
What ‘other’ roles does VLA fulfil?
- Control and administer the Legal Aid Fund.
- In cooperation with government bodies and departments, meet the needs of the community for legal aid.
- Make recommendations about law reform.
- Design and implement education programs to promote
understanding by the public of their rights and responsibilities - Research legal aid issues.
Outline one criticism of the VLA
Funding often criticised for being insufficient to meet community’s demand for legal services.
Hence, VLA can only provide fee legal assistance to those who need it most (e.g. very poor, cannot afford solicitor, homeless, limited English skills etc.)
Thus, large part of community is ineligible for legal aid and people are forced to defend themselves in criminal cases.
Identify the different types of legal aid
- Free legal information
- Free legal advice
- Free duty lawyer services
- Grants of legal assistance (getting a lawyer to run a case)
Describe free legal information. Who is it available to?
Information about criminal justice system and cases which may assist those who are charged with minor offences and will represent themselves provided via website, public library or over the phone.
Everyone.
Describe free legal advice. Who is it available to?
Provided in person, by video conference or over the phone.
People who need it most.
Describe free duty lawyer services. Who are they available to?
Duty lawyer is a lawyer in the Magistrate’s or Children’s court on a particular day who can help people scheduled for a hearing on that day.
Can give fact sheets, offer legal advice, or represent the accused in court on that day.
Not available in indictable offence trials.
Fact sheets for everyone.
Legal advice for people who pass income test or people in custody.
Legal representation for people who pass income test, are facing a significant charge or be someone prioritised by VLA (e.g. homeless, disabled, Indigenous Australian etc.)
What is the income test?
Test applied by Victoria Legal Aid (VLA) to determine whether a duty lawyer can represent an accused.
The test is satisfied when the accused can show that they have limited income (e.g. their primary source of income is social welfare provided by government)
Describe grants of legal assistance (getting a lawyer to run a case). Who are they available to?
May include legal advice, helping the accused resolve matters in dispute, preparing legal documents and representing the accused in court.
Strict guidelines. Accused people must meet the means test. Other matters are considered, including whether the matter has merit and whether helping the accused can benefit them and the public.
Describe grants of legal assistance (getting a lawyer to run the case). Who is it available to?
May include legal advice, helping the accused resolve matters in dispute, preparing legal documents and representing the accused in court.
Strict guidelines. Accused people must meet the means test. Other matters are considered, including whether the matter has merit and whether helping the accused can benefit them and the public.
What is the means test?
The test applied by Victoria Legal Aid (VLA) to determine whether the accused qualifies for legal assistance or representation in court (beyond the services of the duty lawyer on the day). Accounts for the applicant’s income, assets and expenses.
True of False.
Courts can adjourn a trial until legal representation from VLA has been provided.
True.
Courts must be satisfied that the accused persons wouldn’t be able to receive a fair trial without legal representation, and the accused cannot afford to pay for legal representation.
True or False. The burden of proof is on the prosecution to establish that the accused can afford legal representation and thus does not require assistance from the VLA.
False.
The burden of proof is on the accused to establish that they cannot afford the full cost of obtaining legal representation.
Discuss how the VLA meets POJ Access
Strengths:
Free legal information. VlA publishes information about criminal proceedings and the court system, improving many accused persons’ understanding of the legal system.
Legal assistance. those provided with casework assistance by VlA better understand the criminal justice system and their rights in defending the charges alleged.
Weaknesses:
Limited information. information published by VlA about the legal system is general and limited to some disputes; as such it promotes understanding of the legal system for only some accused persons.
Strict eligibility criteria.
Limited availability of duty lawyers.
Discuss how the VLA meets POJ Fairness
Strengths:
Focus on most vulnerable.
VlA’s eligibility criteria
for a grant of legal assistance/legal representation ensure those most at risk of a serious sanction and least able to afford a private lawyer, are provided with legal representation – ensuring they are better able to present their defence in its best light, promoting fairness.
Weaknesses:
Strict eligibility requirements. VlA’s strict eligibility criteria (and very limited budget) mean it is only able to provide legal advice and representation to a small number of accused persons; many accused persons charged with criminal offences do not meet VlA’s eligibility criteria but cannot afford a private lawyer; as a result, VlA is limited in its ability to ensure fairness across the criminal justice system.
Limited availability of duty lawyers. duty lawyers are not available to all accused persons in the Magistrates’ court.
Discuss how the VLA meets POJ equality
Strengths:
No discrimination in eligibility. VlA’s eligibility criteria ensure legal support is provided to those in most need, regardless of their personal characteristics (such as race, religion, gender, etc); this promotes equality in the administration of justice.
Free information is available to everyone. All members of society (regardless of their personal characteristics such as religion, wealth, etc) can access VlA’s published legal information.
Weaknesses:
Assistance is limited. the strict eligibility criteria for legal assistance mean many accused persons are unable to access support from VlA and remain unrepresented; VlA is therefore unable to ensure equality of access
to legal representation for all in the community – it can represent only the very poor, the very rich can afford their own private lawyer, and the ‘forgotten middle’ may be required to self-represent.
What are community legal centre (CLCs)?
Indepedent, not-for-profit organisations that provide free legal services (including advice, information and representation) to people in their local communities who are unable to access other legal services.
What are the two types of community legal centres?
Generalist CLCs
Specialist CLCs
What is a generalist CLC?
A community legal centre that provides a broad range of legal services to people in a particular geographical area in Victoria.
What is a specialist CLC?
A community legal centre that focuses on a particular group of people or area of law (e.g. young people, domestic violence, animal protection)
In what ways can a CLC provide assistance to people in their community?
- Basic legal information
- Initial legal advice
- Duty lawyer assistance
- Legal Casework
Elaborate on the basic legal information CLCs provide
- provided on a day-to-day basis
- some of the information is online
Elaborate on the initial legal advice that CLCs provide
- provide legal advice and info such as preliminary assistance, and help with writing short letters and completing forms
- offer a free legal advice service that allows people to visit the CLC without an appointment and get legal information and advice
- phone advice also available
Elaborate on the duty lawyer assistance that CLCs provide
Duty lawyers provide advice or representation for urgent matters that will be completed in one day.
Elaborate on the legal casework assistance that CLCs provide
- very rare
- involves legal representation and assistance, often requiring ongoing legal services
- each CLC has its own eligibility requirements, and many only take on a matter if the person is eligible for a grant of legal assistance from VLA
- many CLCs do not offer representation and assistance for indictable offences
Who do CLCs often provide assistance to?
People who need legal assistance the most because of their personal circumstances, such as people who have a disability or mental health issues, refugees, people in domestic violence situations, the homeless, young people and those who cannot afford a lawyer.
Do many CLCs only help with minor criminal matters?
Yes.
E.g. St. Kilda Legal Service cannot assist an accused charged with an indictable offence.
Comment on funding for CLCs
- sources include state, Commonwealrh and local governments and private donations; also VLA
- funding is an issue due to high demand for legal assistance, hence CLCs contunually seek more funding.
How do CLCs promote access?
Free advice and information. CLCs provide free legal advice and information, meaning education on the justice system is accessible to all in the local community; this will assist unrepresented accused people better understand their legal rights in defending themselves and the courts’ procedures they will need to navigate when facing charges.
Location. CLCs are located all over metropolitan Melbourne and some provide legal assistance over the phone, promoting accessibility to legal advice
What are the limitations of CLCs in achieving access?
Limited assistance. As clcs usually provide assistance for relatively minor criminal matters, they do not promote access to justice for those charged with very serious criminal matters (other than referring such accused persons to other legal service providers such as VlA).
Only available to some geographical areas. relatively few clcs are located in rural parts of Victoria, limiting access to legal information and advice for those in remote areas.
How do CLCs promote fairness?
Allows better understanding of legal system. though the information provided by clcs to accused persons
is often limited, it is preferable to having an accused person self-represent with no understanding of the
law and any lawful defences they can raise; as such an accused person who has sought advice from a clc is in a better position to present their defence in its best light, promoting fairness
What are limitations of CLCs in promoting fairness?
Only provide minor assistance and advice. clcs often provide legal advice and casework for relatively minor criminal matters (and so cannot assist those defending indictable offences). further, clcs often cannot provide legal representation in court, meaning many individuals must still self-represent, reducing their ability to receive a fair trial (as they are less able to test the accuracy of the evidence presented by the prosecution and less aware of lawful defences they can raise).
How do CLCs promote equality?
Interpreters. clcs often provide an interpreter service to ensure those from non-english speaking backgrounds can access legal assistance, promoting equality in the justice system.
Available to members of community regardless of personal attributes e.g. race, gender, age etc.
What are limitations of CLCs in promoting equality?
Legal representation is not available for serious offences. As clcs usually provide limited assistance
to those charged with minor offences, many poorer individuals charged with indictable offences who do not meet VlA’s strict eligibility criteria will need to self-represent (with clcs often not able to assist these people); as such, access to legal representation remains unequal and affected by accused persons’ wealth/ income, despite the services provided by clcs.
Is VLA necessarily free?
No. Legal advice is given for free however.
What are the two main sources of VLA’s funding?
Victorian and Commonwealth government. (2015-16 financial yr, VLA received $140.7m in govt funding. $91.3m from Victoria, $49.4m from c’weath govt.
The Public Purpose Fund (ppf), a Victorian fund to meet the costs of regulating the legal profession in Victoria and fund the VLA. The funds come from lawyers and legal practices. In the 2015-16, VLA received $28.3m in income from the PPF
What is a committal proceeding?
The processes and hearings that take place in the Magistrate’s Court for indictable offences.
In what cases do committal proceedings take place?
- an accused has been charged with one or more indictable offences
- the accused has pleaded not guilty
Is a committal proceeding used for summary offences?
No.
What are the purposes of a committal proceeding?
- determine whether charge is appropriate to be heard and determined summarily
- determine if enough evidence exists to support conviction for the charge
- find out whether accused pleads guilty or not guilty
- ensure fair trial
In what ways do committal proceedings ensure a fair trial?
- prosecution’s case is disclosed to the accused
- giving the accused the opportunity to hear or read evidence and cross-examine witnesses
- allowing the accused to put forward a case at an early stage if they choose to
- allowing the accused to properly prepare and present a case
- issues to be charged are properly defined
What is the main and final stage of a committal proceeding?
A committal hearing
What is a committal hearing?
A hearing that is held as part of the committal proceeding. At the committal hearing, the magistrate will decide whether there is sufficient evidence to support a conviction for the offence charged.
What happens in a committal hearing?
- accused can question the prosecution’s witnesses and make submissions about the charges.
- after the evidence and submissions, the magistrate decides whether to commit the accused (send to trial)
What is the magistrate finds that there is enough evidence (of sufficient weight) to support a conviction at trial?
the accused is committed to stand trial and released on bail to wait for the trial or held in remand
What if the magistrate decides that there is not enough evidence (of sufficient weight) to support a conviction upon trial?
The accused is discharged and allowed to go free
What if further evidence is found in the future?
The accused can be brought before court again, because the committal proceeding is not a trial and the accused has not been found guilty or not guilty.
What proceedings ensue after a committal proceeding?
If accused committed for trial, the documents transferred to DPP who files indictment (written statement of details of the charge) in the County/Supreme Court. This commences the criminal proceedings in the higher court and ultimately leads to a trial before the judge and jury to determine guilt.
What are strengths of committal proceedings?
TIPS
T: accused can test the strength of the prosecutions case (e.g. cross-examining their witnesses). They might thus plead guilty or agree upon some facts or issues, saving time.
I: allows accused to be informed about the prosecution’s case, helping them decide whether to plead guilty or not guilty, and helping them prepare their case without being ambushed by unexpected witnesses.
P: Upholds presumption of innocence as the prosecution must establish that enough evidence (of sufficient weight) exists to support conviction on trial. If they cannot do that, the accused is discharged.
S: Save time and resources of higher courts by filtering out the weak cases that are unlikely to succeed due to insufficient prosecution evidence.
What are the weaknesses of committal proceedings?
DICE
D: Can add to delay of getting a case to trial, which may reduce access to the criminal justice system and increase risk of unfair outcome.
I: Can be unnecessary and inconvenient, and add extra and stress and trauma to the parties and victims (e.g. having to hear/give evidence twice)
C: Complicated. Involve making submission, cross-examination, many different hearings (including committal hearing). Can thus be difficult to understand without experience with the processes and without legal representation, thus risking compromise of fairness. Could also lead to inequality between experienced prosecutor and inexperienced accused person.
E: Expensive. Adds costs for the accused (e.g. employing legal representation) and increases cost to the state of prosecuting a case.
Can the DPP skip the committal proceeding and file a direct indictment?
Yes, but only if the prosecution has a strong case and wants to avoid the distress, expense and time involved in committal proceedings.
How do committal proceedings promote access?
- By filtering out cases without sufficient evidence to support a conviction, committal proceedings prevent higher courts from experiencing a backlog of cases that are not worth pursuing with the state’s resources. Thus, cases with strength and merit can actually be heard in the higher courts without unreasonable delay.
What are the limitations of committal proceedings in achieving access?
- complex and difficult for the accused to understand without legal experience or representation
- may cause unnecessary delays of getting a case to trial which could reduce accused person’s access to the justice system
How do committal proceedings promote fairness?
Reduces delays. committals save the time and resources of higher courts by filtering out the weak cases that are unlikely to succeed because of insufficient prosecution evidence; by minimising the delays for serious trials, it reduces the stress and anxiety for accused persons, witnesses, victims and their families, which is fair.
Ensures transparency. Allows the accused to be informed
of the prosecution’s case against them. this could help them decide whether to plead guilty or not guilty, and also help them to prepare their case in its best light, promoting fairness.
Upholds presumption of innocence. the prosecution is required to prove to the court that there is enough evidence to support the conviction at trial. if they cannot do that, the accused is discharged. this supports the principle that the accused is innocent until proven guilty and ensures they
do not face the stress and cost of a jury trial that has little prospect of resulting in a guilty verdict (which is fair).
What are the limitations of committal proceedings in achieving fairness?
Stress and trauma inflicted on victim/witnesses may reduce their ability to testify in court and create unfair circumstances in court for them.
Expensive. Despite poor evidence, accused may still plead guilty to avoid the legal costs of pursuing the case further in court. Thus, not equitable. Fear of expenses has impeded justice.
How do committal proceedings promote equality?
All accused for indictable offences. All persons charged with indictable offences are equally granted the benefits of committal proceedings – namely, the opportunity to see the prosecution’s case against them and to ensure they don’t stand trial if the prosecution case is weak – regardless of their age, income, gender and so on.
What are the limitations of committal proceedings in achieving equality?
Complex process can disadvantage an accused. if an accused does not have legal representation they can find it hard to understand committal proceedings, as the rules regarding such proceedings are complicated. Without legal representation the accused can find it hard to understand the process and may be unaware of legal rights to test the prosecution’s evidence. this will result in inequality between a very experienced prosecution (the prosecution has the office of Public Prosecutions, Victoria Police
and the state’s forensic science resources to assist it in preparing its case) and an inexperienced accused person.
Are criminal cases heard and determined only in courts?
Yes.
Are there any means that encourage early determination of a criminal case without the need to go to trial (or hearing in the Magistrates’ Court)? If so, Identify them
Yes.
- Plea negotiations
- Sentence indications
What are plea negotiations?
Pre-trial discussions between the prosecution and the accused, aimed at resolving the case by agreeing on an outcome to the criminal charges laid a.k.a charge negotiations.
Are plea negotiations available for summary offences or for indictable offences?
Both
Explain how plea negotiations are ‘without prejudice’?
Any offers made by either party during the negotiations cannot be used against them if the negotiations are not successful.
Thus, accused may be free to negotiate with the prosecutor without fear that what they say will be used against them at trial or a hearing if negotiations fail.
Upholds fairness as accused is able to use legal processes without fear or favour. However, can still disadvantage parties by providing insight into their weaknesses.
What sorts of agreements can be reached between the prosecutor and the accused?
- pleads guilty to fewer charges, with remaining charges not proceeding
- pleads guilty to a charge but an agreement is reached about the facts on which the plea is based
- pleads guilty to a lesser charge with lower maximum penalty
True or False
Plea negotiations determine a sentence to impose upon the accused
False. The prosecutor has no power to sentence an offender. Only the court can do that.
Describe the role of the court following plea negotiations
- court informed the charges the accused has pleaded guilty to
- court imposes sanction upon offender
Should victim’s views be accounted for when deciding to enter an agreement with the accused?
- Yes
- But not deciding factor
What are the purposes of plea negotiations?
- resolve criminal case by ensuring a plea of guilty to a charge that adequately reflects the crime that was committed
- prompt resolution to a criminal case without the cost, time, stress, trauma and inconvenience of criminal trial or hearing (relieves victims/witnesses of burden and trauma of giving evidence and help them move on)
+ provides certainty of outcome.
What factors influence the appropriateness of plea negotiations?
- whether accused willing to cooperate in investigation/prosecution of co-offenders or other offenders
- strength of prosecution’s case
- whether accused is willing to plead guilty
- whether witnesses reluctant/unable to give evidence
- possible adverse consequences of full trial
- views of victim
When may plea negotiations be inappropriate?
- The accused is not prepared to plead guilty to any charges.
- The alleged offending is so serious that a conviction for lesser charges is not in the public interest
(and the perception the accused ‘got off lightly’ will be too great). - The victim (or their family) opposes such an agreement (please note the prosecution will consider this in deciding whether to negotiate a plea, but it is ultimately up to the prosecution to decide whether to enter such an agreement – even if the victim or their family opposes it).
