Chapter 4.10 Flashcards
costs, time and cultural differences
Costs of legal representation
In a criminal case, the main costs are usually for obtaining a lawyer to provide legal advice or representation. This primarily affects the accused, who often needs legal help to navigate the justice system, but victims may also need assistance to understand procedures and assert their rights. While legal representation is a right, not everyone can afford it, which can disadvantage the accused in presenting their case. Those who can’t afford legal services may seek help from Victoria Legal Aid (VLA), community legal centres (CLCs), or pro bono lawyers, but those without assistance must represent themselves, adding pressure to the courts.
Costs
The costs associated with the criminal justice system can be significant, particularly for an accused
who cannot afford legal representation. They can also be significant for a victim of a criminal case who
needs legal assistance and advice, and even for the public given the costs associated with prosecuting a
criminal case. These cases can significanlty ditter an individual from brining forward there case
pro bono
a Latin term meaning
‘for the public good’; a
term used to describe
legal services that are
provided for free (or at a
reduced rate)
Measures to address costs
One key solution to address legal costs is the provision of free legal aid through organisations like Victoria Legal Aid (VLA) and Community Legal Centres (CLCs). Initially, VLA aimed to correct the imbalance in access to justice between those who could afford legal services and those who couldn’t. However, high demand and limited funding have made it difficult for VLA and CLCs to serve everyone in need. Other cost-saving measures include:
- Committal proceedings: These help filter out weak cases, preventing unnecessary trials. They give the accused a chance to plead guilty after reviewing the evidence. However, some argue they are ineffective, as most cases proceed to trial.
- Plea negotiations: Resolving criminal cases through agreements can avoid the costs of a full trial, benefiting both the prosecution and the courts.
committal proceedings
the pre-trial hearings
and processes held in
the Magistrates’ Court
for indictable offences
plea negotiations
(in criminal cases)
pre-trial discussions
between the
prosecution and the
accused, aimed at
resolving the case by
agreeing on an outcome
to the criminal charges
laid (also known as
charge negotiations)
Time
An accused person has the right under the Victorian Human Rights Charter to be tried without unreasonable delay. Delays should be avoided, and cases should proceed as quickly as practical. However, what counts as a reasonable time varies based on the case. The principle “justice delayed is justice denied” highlights that delays in trials can undermine the ability of the criminal justice system to deliver justice.
Human Rights Charter
the Charter of
Human Rights and
Responsibilities Act 2006
(Vic). Its main purpose
is to protect and
promote human rights
Court delays
Criminal cases involve tasks such as gathering evidence, interviewing witnesses, and determining charges, which vary in duration depending on the case. More complex cases take longer to prepare for trial. Delays are often attributed to the justice system’s reliance on prosecution evidence gathering, paper-based documents, and committal proceedings. Additionally, the COVID-19 pandemic caused further delays, creating a backlog of cases waiting to be heard.
Measures to address delays
Plea negotiations help reduce court delays by encouraging early guilty pleas, which speeds up case resolution and avoids lengthy trials. This process saves time, costs, and reduces stress. Plea negotiations also free up court resources for other cases. To address COVID-19-related delays, temporary legislation allowed for judge-alone trials with the accused’s consent, and digital technology has been invested in to facilitate remote hearings. The Magistrates’ Court’s “Online Magistrates’ Court” program is expanding to handle more cases online.
Cultural differences
The community in general is becoming more aware of the need to ensure that all people have access
to the justice system, and that all people are treated equally and fairly. But this is not always the case,
particularly for different cultural groups.
- These include people for whom English is not their first language and First Nations peoples.
Cultural difficulties include lack of knowledge of the legal system, lack of understanding of
the English language, failure of the legal system to account for differences, and cultural
misunderstandings.
Difficulties faced by First Nations peoples
First Nations peoples often face unique challenges in the courtroom due to their complex systems of laws and customs. These difficulties can be exacerbated by cultural and language barriers.
- Language Barriers: Differences in language use, such as the meaning of words, can lead to misunderstandings.
- Direct Questioning: The straightforward question-and-answer method may be inappropriate due to cultural norms favoring group discussion and storytelling.
- Body Language: direct eye contact is seen as disrespectful to first nations people, Avoidance of direct eye contact can be misinterpreted as disinterest or dishonesty.
- Cultural Taboos: Certain topics or names may be taboo, creating difficulties in discussing them in court.
- Lack of Understanding of Court Procedures: Repeatedly telling their story may confuse First Nations peoples, leading them to believe they must alter their account each time.
intergenerational
trauma
a psychological
response to highly
distressing, stressful
or oppressive historical
events, such as war or
significant injustices,
which is passed on to
future generations.
First Nations
people experience
intergenerational
trauma for many
reasons, including
being subjected to
brutal and harmful
government
policies, racism and
discrimination since
the British colonisation
of Australia
Cultural and language barriers
Many Australians born overseas may face challenges in understanding court processes and legal language due to language barriers. This issue affects not only accused individuals but also victims and witnesses.
challenges faced include:
- Difficulty understanding court documents, processes, and legal language.
- Limited comprehension of legal rights, agencies, and courtroom procedures.
- Significant disadvantage due to lack of understanding of the legal system.
Measures to address cultural differences
To address the challenges faced by First Nations people in the criminal justice system, several measures have been implemented:
- The use of the Koori court
- Provision of free interpreters for accused individuals, arranged by the court or prosecution
- Multilingual information from courts, Victoria Legal Aid (VLA), and community legal centres (CLCs) to help individuals understand their rights and legal processes.
