Chapter 4.8

Question 1

two parties in a criminal case

Answer 1

the prosecution – the party bringing a criminal case to court
the accused – a person who has been charged with a criminal offence.

Question 2

Roles of the prosecution

Answer 2

the prosecution role is to present the
entire case to the jury (or magistrate), and let them decide
on guilt.
More specifically, the prosecution has the following
roles:
* disclose information to the accused
* participate in the trial or hearing
* make submissions about sentencing.

Question 3

Disclose information to the accused

Answer 3

The prosecutor’s role is to discolse all relevant information with the accused, including the evidence and witness details that will be used against them. They must also disclose any information that could help the accused’s case. This includes revealing past convictions of prosecution witnesses, allowing the defense to question the witness’s credibility

Question 4

Victorian Law Reform
Commission (VLRC)

Answer 4

Victoria’s leading
independent law
reform organisation.
The VLRC reviews,
researches and makes
recommendations to
the state parliament
about possible changes
to Victoria’s laws

Question 5

Participate in the trial or hearing

Answer 5

During a trial or hearing, the prosecutor presents the case, including making opening and closing statements, presenting evidence, and examining witnesses. The prosecutor must focus on the facts and evidence without influencing emotions or giving personal opinions.
- Opening Address: Introduces the prosecution’s case, outlining key issues and evidence for the jury or magistrate.
- Presenting Evidence: Calls witnesses, both lay (those who witnessed the event) and expert (specialized in a particular field), and conducts the examination-in-chief.
- Cross-Examination: Questions witnesses presented by the accused.
- Closing Address: Summarizes the case based on the evidence, without using emotional appeals or expressing personal opinions.

Question 6

Make submissions about sentencing

Answer 6

If the accused pleads or is found guilty, a plea hearing is scheduled where both sides can make arguments about sentencing. The prosecutor provides information about relevant laws and details about the offence or the offender. The prosecutor’s role is to help the court decide the sentence but should not suggest a specific sentencing range, as per the High Court’s ruling.

Question 7

Roles of the accused

Answer 7

The accused’s role in a criminal case is different to the role of the prosecutor, because the accused does
not have the burden of proof, and can choose to remain silent during the entire case.
Broadly, the roles of the accused in a criminal case are to:
* participate in the trial or hearing
* make submissions about sentencing.

Question 8

Participate in the trial or hearing

Answer 8

The accused has the option to participate fully in the trial or remain silent. If they choose to present a defense, their role or that of their legal representatives may include presenting their case in a structured way.
- Opening address: Summarizes their evidence, ensuring it’s relevant and will be used in the trial (requires permission in the Magistrates’ Court).
- Presenting evidence: Typically done by calling witnesses, but the accused can also give evidence at any stage.
- Cross-examining witnesses: They can question the witnesses presented by the prosecution.
- Closing address: After the prosecution’s closing, they provide their final arguments, focusing on the evidence.

Question 9

Make submissions about sentencing

Answer 9

The offender is also entitled to make submissions about sentencing. In doing so, the
offender (or their legal practitioners) will try to obtain the least possible sentence available, relying on factors or information that weigh towards a lighter sentence. In doing so, however, they must not mislead
the court.

Question 10

strengths of the accused

Answer 10

• The prosecutor has special obligations to
  disclose all relevant matters to the accused.
  The accused must also not seek to change
  witnesses without notice to the accused. This
  ensures there is no ‘trial by ambush’ in that
  another party is unable to challenge evidence
  of the other party because they have not been given prior notice.
• Both parties have the opportunity to present
  their cases, including when making opening
  and closing addresses. This also includes the
  opportunity to examine and cross-examine
  witnesses (in examination in chief and
  cross-examination).
• The accused has no obligation to present
  evidence or do or say anything in the trial.

Question 11

weakness of the accused

Answer 11

• The Victorian Law Reform Commission (VLRC)
  noted in one of its inquiries that early and
  adequate disclosure is an issue in Victoria. For
  example, it noted that sometimes the police
  often wait to see what the defence requests
  rather than providing disclosure upfront.
• The processes involved are complex and
  difficult to understand without a lawyer,
  making it difficult for self-represented
  accused people.
• ‘Party control’ and the right to silence may
  mean that the truth does not come out.
  For example, the accused may not say
  or do anything. This is particularly so in
  situations where the accused is the only
  person that knows what happened. This
  may feel particularly unjust for victims and
  their families.