Chapter 4.6 Flashcards
The judge and magistrate
Introduction to the judge and magistrate
If the accused is charged with a summary offence, the offence will generally be heard in the Magistrates’
Court, and the magistrate will have the primary role in the case.
If the accused is charged with an indictable offence, the offence will generally be heard in the
County Court or the Supreme Court, and the judge will therefore have a primary role in the case. The
magistrate will also play some part in a case involving an indictable offence, as they will need to oversee
the committal proceeding stage of the case in the Magistrates’ Court, after which the case will be
transferred to one of the higher courts.
Roles of the judge and magistrate
The judge or magistrate is oversee the case, act as
an ‘umpire’ or ‘referee’ at trial or hearing, and make sure that the court procedures are carried out in
accordance with the court’s rules to ensure that the parties are treated fairly.
Judges and magistrates have a number of roles in a criminal case, including to:
* act impartially
* manage the trial or hearing
* decide or oversee the outcome of the case
* sentence an offender.
Act impartially
Impartiality is a key part of a fair trial. It ensures the public trusts the legal system. Judges and magistrates must not only be unbiased but also appear to be unbiased. This is called “apprehended bias,” where it seems like a judge might not be impartial due to their actions or relationships. If there’s a chance of bias, a judge may be asked to step aside to maintain fairness.
apprehended bias
a situation in which
a fair-minded lay
observer might
reasonably believe that
the person hearing or
deciding a case (e.g. a
judge or magistrate)
might not bring an
impartial mind to the
case
Manage the trial or hearing
Judges or magistrates must:
- Ensure proper court procedures are followed, giving both sides an equal chance to present their case. This includes managing witnesses and the order of the trial.
- Ask questions or call witnesses if clarification is needed, with both parties’ permission.
- Make decisions about what evidence is allowed, following rules such as relevance and restrictions on hearsay and opinions.
- Adjust trial processes to prevent any party from facing disadvantages (e.g., allowing breaks).
They must remain neutral and do not take sides or compensate for inadequate representation by legal counsel.
what evidence is permitted
- evidence must be relevant to the issues in dispute
- in most instances, hearsay evidence is not admissible.
- evidence of an opinion is generally not admissible. If someone ‘thinks’ that the accused committed the crime, this is not admissible. There are some exceptions to this rule
evidence
information, documents
and other material used
to prove the facts in a
legal case
hearsay evidence
evidence given by a
person who did not
personally witness
the thing that is being
stated to the court as
true
disparity
a situation in which
two or more things or
people are not equal,
and the inequality
causes unfairness
barrister
an independent lawyer
with specialist skills
in dispute resolution
and advocacy who is
engaged on behalf of
a party (usually by the
solicitor). In Victoria,
the legal profession
is divided into two
branches: solicitors
and barristers
Decide or oversee the outcome of the case
- magistrate
In the Magistrates’ Court, the magistrate will have the role of deciding whether the accused is guilty of committing the crime. This is because there is no jury in summary offences.
The magistrate will be required to listen to the cases presented by both parties and decide
whether, based on the facts and the law, the accused is guilty beyond reasonable doubt. If the
accused is found guilty, they will be sentenced at a later date. If they are found not guilty, this
will be the end of the matter.
decide or oversee the outcome of the case
- judge
In the County or Supreme Courts, the jury decides whether the accused is guilty, but the judge plays an important role in guiding the jury. The judge must:
- Give directions to the jury to ensure a fair trial, such as reminding them the accused doesn’t have to give evidence and that this should not imply guilt.
- Summarise the case for the jury at the end of the trial, explaining the law, reviewing key evidence, and clarifying how each party has presented their arguments.
- clarify legal terms, like the meaning of “beyond reasonable doubt,” to help the jury understand.
Sentence an offender
When an accused is found guilty or pleads guilty, a plea hearing takes place. During this hearing, both sides present arguments about the appropriate sentence. The judge or magistrate will either sentence the offender on the same day or at a later time. They must follow the rules in the Sentencing Act 1991 (Vic) and consider any legal guidelines for the sentence. The judge also listens to victims through impact statements and ensures that both parties have the chance to present their views on the offence and sentencing. If this process is not properly followed, it could lead to an appeal.
victim impact statement
a statement filed with
the court by a victim
that is considered
by the court when
sentencing. It contains
particulars of any injury,
loss or damage suffered
by the victim as a result
of the offence
community correction
order (CCO)
a flexible, non-custodial
sanction (one that
does not involve a
prison sentence) that
the offender serves in
the community, with
conditions attached to
the order
