chapter 4.3-5.5 Flashcards
purpose of committal proceedings and the procedure
a committal proceeding is a pre-trial proceeding. it can test to see if the evidence brought forward is enough for a conviction
it takes place in the magistrates’ court
- to see if the charge can be heard summarily
- to decide if there is enough evidence to support a possible conviction
- to find out the plea of the accused
- to ensure the trial is fair - gives the accused the opportunity to review the case against them and to prepare their own case
offence is indictable
1: filing hearing
happens right after the charge, magistrates will make the orders and sets date for when the hand up brief needs to be put through.
2: committal mention hearing
court will ask how the accused will plead - if they plead guilty nothing happens and it goes to sentencing
committal hearing:
- a hearing conducted on the hand up brief
- a contested committal hearing - questioning thee witnesses with permission of judge (mini trial, accused has the opportunity to ask questions)
strengths and weaknesses of committal proceedings
strengths:
- saves time and resources ut of the higher courts by filtering out weak cases
- accused is informed of the prosecution’s case against them
- guilty or not guilty plead
- the onus is on the prosecution - supports the principle that the accused is innocent until proven guilty
- prosecution is given the opportunity to combine or withdraw some charges after the evidence has been considered
- accused has the opportunity to test the strength of the prosecution’s case
weaknesses:
- committal proceedings are complicated
- legal representation services can be expensive
- committal proceedings can add to the delay of getting a case to trial which can reduce access to the criminal justice system and could also increase the risk of an unfair outcome. As a result, some have suggested that strong cases should proceed directly to trial and bypass the committal stage
- committal proceedings can add to the stress and trauma experienced by the accused
- committal proceedings can be unnecessary for stronger cases
plea negotiations (appropriatness, purposes)
plea negotiations are negotiations that take place between the accused and the prosecutor about the charges against the accused
- guilty pleas are necessary for the effective, economic and efficient conduct of prosecutions - saves time
saves the community the cost of trials
allows for things to be wrapped up
don’t need to go through the stress and trauma
plea negotiations are private
- removal of some charges in return for a guilty plea on another or others
- reduction in charge to a less serious offence
purposes of plea negotiations:
- resolve a criminal cause through a guilty plea to a charge that reflects crime (reduces chances of incorrect evidence, efficient/quick resolution, fairness and access is achieved)
- a prompt resolution to a criminal case (quick resolution)
- giving the accused more complete information about the progress of their dispute and the choices available to them. This empowers them to make better-informed decisions about a proceeding that is likely to have a significant impact on their life. (empowers them to make an informed decision, some control of the outcome)
appropriateness of plea negotiations (factors considered)
- the strength of evidence
- any probable defences
- views of victims and informants
- minimise inconvenience and distress to witnesses
- accused criminal history (reoffending, don’t deserve a lesser sanction)
- likely length of a trial
- whether accused will give evidence for prosecution after pleading guilty
- if it is worth going through a trial / plea negotiation
- the time and expense involved in a trial
- consequences of a full trial (stress and inconvenience on witnesses)
strengths and weaknesses of plea negotiations
strengths:
- saves cost and time
- prompt determination of criminal cases and increase public confidence in the legal systems.
- victims, witnesses and their families are saved from the trauma, inconvenience and distress of the trial process.
- accused may receive a reduced sentence because of a plea of guilty before trial
- negotiations help to make sure that the agreement reflects the criminality of the offender
- help to make sure that there is certainty in the outcome for all parties.
weaknesses:
- the community and victims may feel as though the accused is being let off too easily or is getting a lenient sentence that does not reflect the crime
- self represented accused people may feel pressured into pleading guilty
- the negotiation process may be seen as the prosecutor avoiding the need to prove the case beyond a reasonable doubt, which is a fundamental principle of our justice system and upholds the presumption of innocence
- negotiations do not need to be disclosed and can be held privately - this lack of transparency may make some people question the agreement or the reason why the prosecution decided to reduce the severity of the charges
- if negotiations do not succeed, then either party may be advantaged or disadvantaged. eg: prosecution may be able to get an insight into the weaknesses of the accused’s case
sentence indications (purposes and appropriateness)
lets the accused know what sanction is likely to be imposed on them if they plead guilty to the offence at a particular point in time.
it is for accused that will be imprisoned
- prompt resolution, time and cost are saved
- allows the accused to know how long they can be imprisoned for (max time)
can save time as would make accused plead guilty - hence saving time as they know the maximum sentence
sentence indication has to occur before the trial has started
the accused is still seen as innocent when applying for sentence indication then pleading not guilty, cannot be used as evidence as its just allowing them to see the direction its going (presumption of innocence)
purposes:
clarity about likely sentence so can make the decision to plead guilty
saves time, cost, resources, stress and inconvenience of trial/hearing
- early closure for victims and families
appropriateness of sentence indications:
- whether the accused has applied for a sentence indication
- whether there is sufficient information about the impact of the offence on the victim for the judge to make an indication
- whether the accused is charged with an indictable offence
- whether the prosecution and the victims family oppose the sentence indication
- the strength of the evidence against the accused and whether they have raised a legitimate defence
strengths and weaknesses of sentence indications
strengths:
- can result in the early determination of the case - prompt justice rather than delayed
- saves money and resources
- can be conducted in open court - this means there is transparency in the indication that the judge gives, rather than the secrecy that may apply to plea negotiations
- accused is not bound to accept the indication and plead guilty - provides fairness for the accused
- indication is given by an experienced and impartial judge or magistrate
- the accused has greater certainty about what sentence they will receive
- can minimise stress, trauma and inconvenience of victims and witnesses if a sentence indication is given early
- any victim impact statement can be considered by a judge when giving an indication - allows for the victim’s voice to be heard in the process
- if the accused asks for a sentence indication but does not plead guilty, a difference judge or magistrate will hear he trial or hearing. trial will be able to proceed fairly
- if the accused does not plead guilty and has applied for a sentence indication, it cannot be used as evidence
weaknesses:
- judge is not obliged to grant the accused’d request for the indication. may be seen as unfair if the accused is willing to consider pleading guilty
- in higher courts 0 the prosecutor must consent to the indication being given, thereforelimiting the availability of the regime where the prosecutor, for whatever reason does not consent.
- sentence indication avoids the need for the charges to be proved beyond reasonable doubt
- may lessen the impact or need for a victim impact statement as the court will not need to hear as much evidence to decide on the sentence
- denies the victim’s day in court
- sentence indication may compel an innocent person to plead guilty to save them from getting a higher sentence at trial
responsibility of the judge and jury in a trial
responsibilities of the judge:
- manage the trial
- decide on admissibility of evidence
- attend to jury matters
- give directions to the jury and sum up the case
- hand down a sentence
- order that the vla provide legal presentation
- be familiar with technology
- assist a self represented party
responsibilities of the jury:
- be objective
- listen to and remember evidence
- understand directions and summin up
- deliver a verdict
responsibility of the parties and legal practitioners in a trial
there are two parties in a criminal trial: prosecution (the party that brings the case to court) and the accused
responsibilities of the parties:
- give an opening address
- assist the judge in jury matters
- present the party’s case
- give a closing address
- make submissions about sentencing
- attend trial
- research the law (prosecution)
- no bias (prosecution)
responsibilities of legal practitioners:
- be prepared
- comply with their duty to the court
- act in the best interests of their client
purposes of sanctions
rehabilitation: to address the underlying reasons for the crime and treat the offender based on those reasons. community-based rather than custodial
punishment: to punish the offender - the extent of punishment should reflect on the seriousness of the crime
deterrence: aim to discourage future offending, either by the accused (specific deterrence) or by others in the community (general deterrence)
denunciation: to show the community that such actions are not tolerated - to display disapproval
protection: safeguard the community from dangerous criminals who have offended. best achieved by a custodial sentence
types of sanctions (factors to consider when determining whether it can achieve its purpose)
+ fine: a sanction that can be imposed by the court - an amount of money ordered to be paid by the offender to the state of vic. can be the only sanction imposed or can be imposed with another sanction.
can act as a form of denunciation (clear public declaration that certain acts and behaviour are unacceptable). a court may give a large fgine to a person or organisation as a way of denouncing certain actions and showing strong disapproval.
factors to consider when determining whether a fine can achieve its purposes:
- wealth of the offender
- ability to denounce the crime
- whether a fine is sufficient to act as a general deterrent for the whole community
- whether there is a more appropriate sanction
+ community correction orders: a supervised sentence served in the community that includes special conditions
the offender:
- must nor commit another offence punishable by imprisonment during the term of the order
- must report to a specified community corrections centre within two working days of the order coming into force
- must report to and receive visits from a community corrections officer
- must not leave vic without permission
- must comply wit any directions of community correction officers
factors to consider when determining whether a cco can achieve its purpose:
- whether there is a condition that will achieve the right purpose for the particular type of offending
- most appropriate condition to be imposed and whether the court imposes that condition
- whether the offender will comply with the condition
- whether a cco properly protects the community, where protection is a relevant purpose
- whether there is another or better sanction that will achieve its necessary purposes
special conditions include: unpaid community work, treatment and rehabilitation, supervision, non-association, residence restriction or exclusion, place or area exclusion, curfew, alcohol exclusion, bond, judicial monitoring
a cco can act as a specific deterrence - having to do unpaid community work and comply with the conditions may discourage the offender from committing the same crime again
+ imprisonment: offender is removed from society and lose their freedom..(level 1= life imprisonment, level 9 = 6 months)
Concurrent – one or more sentences run at the same time as others. For example, an offender sentenced to one year in prison for one offence and two years in prison for another will only serve a total of two years if the sentence is concurrent as both sentences are served at the same time
Cumulative – each sentence is served separately, one after the other. In the above example, the offender would serve a total of three years as the sentences are added together
Aggregate – where the offender has committed several offences, the court can impose an aggregate or total sentence for all of the crimes combined. The court does not split the sentences for each offence separately.
Indefinite – only available where offender has committed very serious offence such as murder, rape, kidnapping or armed robbery. The judge must be satisfied that the offender poses a serious ongoing danger to the community. Such sentences are reviewed periodically while the offender is in custody to assess whether they still pose an unacceptable threat to society
purposes of imprisonment: to punish offender serving as a protection for society. acts as a general deterrence as most people would be deterred from committing a crime by the possibility of going to prison, could also act as s specific deterrence for a particular offender who does not want to go to prison again
facots to consider when determining whether imprisonment can achieve its purpose:
- whether imprisonment is effective and rate of recidivism
- the availability of drugs in prisons
- exposure of offenders to negative influences
- whether the offender will be offered appropriate opportunities to rehabilitate and whether they wo;; take advantage of those opportunities
- whether there are other sentences like cco which are better focused on rehabilitation
- the extent to which the community is protected if short prison terms are given
sentencing factors
aggravating fctors: circumstances about the offender or the offence that can lead to an increase in the sentence that the offender will receive examples:
- use of violence, weapons
- nature and gravity of the offence
- any vulnerabilities of the victim
- offender being motivated by hatred or prejudice against a group of people with common characteristics
- offence taking in front of children or seen by them
- breach of trust bu the offender towards the victim
- offence occurred while offender was on a cco or on bail
mitigating factors: circumstances that a court should consider when determining the appropriate sentence 0 can reduce the seriousness of the offence
examples:
- offender showed remorse
- has no record of previous convictions or is of good character
- offender was acting under duress
- offender has shown effort towards rehabilitation while awaiting sentence
- offender was under personal strain t the time ot they have a unique background which means a lighter sentence should be imposed
guilty pleas at an early stage can rsut in a reduced severity - acts as a mitigating factor
victim impact statements
types of factors that can affect the ability of the criminal justice system to achieve the three principles of justice
cost factors:
- costs of legal representation:
The cost of legal representation most significantly affects the accused, who is more reliant on the assistance of legal representation in order to navigate the criminal justice system.
This cost can also affect victims who may require assistance to understand their rights and the processes involved with a criminal case.
This cost affects those of lower socioeconomic status and, if they are unable to obtain legal aid, they may be required to represent themselves, which can inhibit achieving fairness in the justice system.
- The availability of legal aid
Given the exponentially increasing need for legal aid assistance, institutions such as Victoria Legal Aid have had to tighten their eligibility criteria which does leave many accused in a vulnerable position. Therefore, they may not be able to afford legal representation or be eligible for legal aid.
This is seeing an alarming increase in the amount of self-represented parties. As a result, in order to enhance the principles of justice, judges and magistrates can offer some assistance to these parties.
In 2014, the Productivity Commission recommended that an extra $200 million a year be provided to legal assistance services in order to meet the demand.
Legal aid is currently available for less than 8 per cent of the Australian population.
According to the Victorian Access to Justice Review Report, it is estimated that up to 50 per cent of all accused persons in the Magistrates’ Court are self-represented.
time factors: - Court delays: Some factors that can increase the delays experienced in the legal system include: the time the Office of Public Prosecutions need to prepare a matter for trial the over reliance on hard copy documents the need for committal hearings changes to legal representation backlog in court cases being heard.
- Use of plea negotiations:
Plea negotiations can reduce delays in the legal system through:
achieving an early guilty plea, saving the time and cost of taking a case to trial
pleading guilty, which can reduce the caseload of the courts and allow them to hear cases in a more timely matter.
cultural factors:
- Difficulties faced by Aboriginal and Torres Strait Islander people
language barriers
direct questioning
body language
cultural taboos
lack of understanding of court procedures.
- language barriers:
Victims, witnesses and accused people may not have English as their first language, which can affect their ability to understand the court processes and their rights
Strategies that are in place for language barriers:
The Magistrates’ Court will arrange and pay for an interpreter for an accused in a criminal matter.
For indictable offences, the OPP will arrange and pay for an interpreter.
recent reforms
- expansion of the koori court
- victim support dog program
- changes to committal proceedings for some sexual offence matters
recommended reforms
- continued expansion of the koori court - not all people have access to it
- judge alone trials
- increased funding for legal aid, legal centres and other services
reasons for a court hierarchy
specialisation and appeals…….
