Chapter 5: Reforming the Criminal Justice System

Question 1

Identify types of factors that can affect the ability of the criminal justice system to achieve the principles of justice

Answer 1

• cost factors
• time factors
• cultural factors

Question 2

What are two cost factors?

Answer 2

• cost of legal representation
• availability of legal aid

Question 3

Explain how costs of legal representation can impact the accused and the victim

Answer 3

expensive legal representation or advice can limit access for accused as they may need assistance to navigate criminal justice system as well as victims who may need assistance to be able to assert their rights and understand court processes e.g. giving evidence

Question 4

How can costs of legal representation limit fairness?

Answer 4

Inability to afford legal representation can limit fairness by leading to:
- lack of familiarity with language of criminal trials
- lack of objectivity and emotional distance from the case
- lack of knowledge of courtroom facilities
- lack of understanding of procedure and key principles of criminal law
- lack of ability to evaluate strength of evidence against them and present defence in best light
- unequal legal representation that is of poor quality

All of these can limit ability to achieve equal footing between accused and prosecution.

NOTE: For a person to receive a fair trial, legal representation may be necessary

Question 5

How can costs of legal representation limit equality?

Answer 5

• experienced prosecution, equipped with resources of the state, has advantage against inexperienced accused
• some unrepresented parties cannot initiate appeal if dissatisfied with court judgement due to the costs of doing so, thus, their financial disadvantage limits their ability to exercise right to appeal

Question 6

How can costs of legal representation limit access?

Answer 6

• high costs of appeal (and legal representation needed to prepare for appeals) may discourage accused from exercising their right to do so, making appeal inaccessible
• inability to pay for legal representation and access courts and mechanisms used to determine cases may cause accused person to plead guilty to a crime they have not committed as they lack means to defend case.
• may struggle to understand and enforce their legal rights to pursue their case

Question 7

Explain the availability of legal aid as a cost factor influencing the criminal justice system’s ability to achieve justice

Answer 7

institutions like VLA, CLCs and pro bono representation can make legal aid available at little or no cost for those who cannot afford it.

but, demand for legal aid exceeds supply.
due to inadequate funding, these institutions must have strict eligibility criteria that leaves many accused persons unable to receive legal aid, or to afford legal representation.
this increases the number of self-represented parties in court (up to 50%)

Question 8

What is legal aid?

Answer 8

legal advice, education or information about the law and the provision of legal services (including legal assistance and representation)

Question 9

Define ‘self-represented party’

Answer 9

A person with a matter before a court or tribunal who is not represented by a lawyer or other professional.

Question 10

How have courts adapted to better cater their processes towards self-represented accused persons?

Answer 10

Magistrates’ Court:
- check if accused has received legal aid
- may provide access to VLA duty lawyer
- volunteers present for practical and non-legal advice/support

County or Supreme Court:
- court personnel provide advice and referrals to legal aid providers + pro bono schemes

Responsibility of Judge and Magistrate:
- assist self-represented parties to ensure fair hearing and equality before law

Question 11

How does the availability of legal aid affect fairness?

Answer 11

Positive:
- institutions can help persons understand the criminal justice system and obtain legal aid = can present case in best light = fairness

• ability of court personnel/judge/magistrate to assist self-represented accused = feeling more supported and able to present case without fear/favour = fairness
• judge can adjourn trial until accused obtains legal representation is there is risk that there will not be a fair trial

Negative:
- inadequate funding = many self-represented parties = limit ability to present case in best possible light = limiting fairness

• lengthier trials as judge/magistrate must explain things throughout trial and allow self-represented accused more time to complete unfamiliar processes = mental impact of long trials on victims, witnesses, accused (distress) reduces fairness + increase delays in court and reduce fairness for other accused parties

Question 12

How does the availability of legal aid affect equality?

Answer 12

Positive:
- legal aid avoids putting accused at disadvantage due to lack thereof

• judge can make accomodations to ensure that vulnerable individuals (e.g. mental disability) can participate in proceedings without disadvantage

Negative:
- ineligible accused may still be disadvantaged against skilled and experienced prosecution by not being able to assert or understand their legal rights at the same level

Question 13

How does the availability of legal aid affect access?

Answer 13

Positive:
- VLAs + CLCs + pro bono representation increase access to criminal justice system by providing low-cost or no-cost legal advice to people who need it most; improving their understanding of criminal justice systems, their rights = can enforce rights and pursue case

• court personnel and judge/magistrate can help accused understand court processes, jargon, key concepts, their rights etc.

Negative:
- ineligible accused must still self-represent and may lack the resources they need to sufficiently understand the case, their rights, test accuracy of evidence against them etc.

• judge/magistrate cannot represent the accused or give legal advice, so self-represented accused must still navigate through complex processes that they do not understand

Question 14

What are two time factors?

Answer 14

• court delays
• use of plea negotiations to reduce delays

Question 15

What may contribute to court delays?

Answer 15

• preparation of complex cases
• committal proceedings
• high number of self-represented parties
• reliance on prosecution to collect all evidence

Question 16

How do court delays limit fairness?

Answer 16

• breach right to tried without unreasonable delay:
• if accused is held in remand, POI undermined as they are deprived of liberty and security and thus being treated as guilty leading to impact on psyche + cannot organise legal representation and prepare defence = limit ability to present case in best light
• emotional strain on accused as they may have to deal with stigma of being charged with crime, loss of employment for longer period of time = impact on psyche and ability to present case in best light
• strain on society, victims and witnesses who want to see justice done, can be distressing = process not without fear or favour
• long delays can reduce reliability of evidence e.g. witnesses lose memory over time

Question 17

How do court delays limit equality?

Answer 17

the emotional strain caused by delays can put vulnerable people (e.g. with mental illness or disability) at disadvantage in court

Question 18

How do court delays limit access?

Answer 18

• long delays make courts inaccessible to parties as they cannot use them in a timely manner
• justice is delayed = victims, society cannot access it

Question 19

What are plea negotiations?

Answer 19

Pre-trial discussions between prosecution and accused aimed at resolving the case by agreeing on an outcome to the criminal charges laid

Question 20

How do plea negotiations reduce court delays?

Answer 20

• encourage early guilty pleas
• quicker determination of cases
• saves time + resources of court & saves victims/witnesses from trauma/inconvenience of trials
• therefore, reduced delays

Question 21

How do plea negotiations affect fairness?

Answer 21

Positive:
- Accused person can decide whether or not they plead guilty, they are not forced = without fear or favour

• DPP has policy about when it will enter plea negotiations to ensure appropriateness e.g. unlikely that self-represented accused will negotiate with prosecution directly
• avoid delays, so accused is not held in remand for long = can prepare case and not psychologically impacted = can present case in best light
• intended to ensure that charges reflect criminality of accused
• without prejudice thus without fear or favour

Negative:
- Self-represented accused may feel pressured into pleading guilty even if evidence is not strong as they may struggle to navigate criminal justice system and assess strength of evidence against them

• undermine presumption of innocence as charges not proven beyond reasonable doubt
• not transparent

Question 22

How do plea negotiations affect equality?

Answer 22

Positive:
- everyone has access to plea negotiations regardless of their personal characteristics

Negative:
- should not be undertaken with unrepresented accused as they may be disadvantaged against experienced and skilled prosecution

• if unsuccessful, may reveal information that provides insight into parties’ weaknesses, can put one party at advantage as they may target their case to exploit the weakness

Question 23

How do plea negotiations affect access?

Answer 23

Positive:
- victims are consulted about their views, ensuring that their voice is considered (however, their views do not determine whether plea negotiations occur)
- early resolution of cases frees up resources for other cases that prosecution is unwilling to negotiate on, or where it is in the best interests of the public that they be heard by a judge or jury. Thus, avoiding delays in hearing such cases and making courts more accessible.

Question 24

Identify cultural factors that restrict the ability of the criminal justice system to achieve justice

Answer 24

• difficulties faced by Aboriginal and Torres Strait Islander peoples in questioning and giving evidence
• language barriers

Question 25

Identify difficulties faced by Aboriginal and Torres Strait Islander people

Answer 25

Difficulties

Body language: direct eye contact may be seen as disrespectful by Indigenous Australians who try to avoid it. This can make them look unreliable/uninterested to those who do not understand indigenous culture.

Language barriers: subtle differences in language used by Indigenous people can cause misunderstandings

A lack of understanding of court procedures: May not understand need to repeat evidence and may change story for each telling in attempt to avoid offending authorities. Makes it easier for barrister to make Indigenous witness look inconsistent.

Cultural taboos: forbidden to speak of certain things (e.g. names of dead people, someone community holds in disgrace, gender-based knowledge in front of other gender) = difficulties and misunderstandings for Indigenous people.

Direct questioning: cultural norm: Group agreement through long discussions involving stories is polite way to settle differences, and directness is impolite. conflict with criminal justice system: Indigenous person’s lack of familiarity with the direct question/answer method used for obtaining evidence in criminal matters can make them look evasive/dishonest when they are actually being respectful)

Question 26

How do problems faced by Indigenous persons during question and giving evidence restrict fairness?

Answer 26

• lack of understanding of court procedures, unfamiliarity with direct questioning method and conflicting cultural norms may create feelings of intimidation, undermining idea of ‘without fear or favour’, hindering ability to present case in best light
• language barriers may lead accused into making confessions they may otherwise not make, hindering ability to present case in best light

Question 27

How do problems faced by Indigenous persons during question and giving evidence restrict equality?

Answer 27

• lack of understanding of court procedures, unfamiliarity with direct questioning method and conflicting cultural norms may put Indigenous person at disadvantage against experienced and skilled prosecution
• ability to pursue their case can be hindered by their race and ethnicity (personal attributes), restricting their ability to be equal before the law an undermining equality

Question 28

How do problems faced by Indigenous persons during question and giving evidence restrict access?

Answer 28

• lack of understanding of court proceedings and jargon can reduce Indigenous persons’ ability to navigate the criminal justice system and use its methods, institutions and processes to understand and enforce their rights, limiting access

Question 29

How can language barriers impact ability of criminal justice system to achieve justice?

Answer 29

affect accused person’s ability to understand court proceedings and their legal rights.

Question 30

What right in the Human Rights Charter can help to address language barriers?

Answer 30

One of the rights of an accused is the right o have the assistance of an interpreter (at no cost) if they cannot understand or speak English.

Interpreters can help accused people who cannot speak English communicate with their lawyers and court personnel.

Summary offences: Magistrates’ Court arranges and pays for interpreter
Indictable offences: OPP solicitor arranges and pays for interpreter

Question 31

How do language barriers restrict the ability of the criminal justice system to achieve fairness?

Answer 31

• People who cannot speak/understand English struggle to present their case in best light as they cannot understand court proceeding and their legal rights
• While use of interpreters may help accused understand legal rights and court proceedings and promote equal footing between accused and prosecution, the limited availability of interpreters may restrict this

Question 32

How do language barriers restrict the ability of the criminal justice system to achieve equality?

Answer 32

• Inability to understand court proceedings and legal rights, and difficulty communicating position in court may put accused at disadvantage to skilled and experienced prosecution
• use of interpreters can help people understand proceedings and communicate with lawyers and court personnel, working to remove their disadvantage and make them more equal in the process

Question 33

How do language barriers restrict the ability of the criminal justice system to achieve access?

Answer 33

• unless interpreter available, there is difficulty understanding court proceedings and their legal rights
• interpreters can help people access legal advice and information in a way that they can understand

Question 34

Identify 3 recent reforms

Answer 34

• expansion of Koori Court (2020)
• victim support dog program (2019)
• changes to committal proceedings for some sexual offence matters (2018 and 2020)

Question 35

What is the Koori Court?

Answer 35

A division of the Magistrates’ Court, Children’s Court and County Court that (in certain circumstances) operates as a sentencing court for Indigenous people.

Question 36

Under what circumstances can the Koori Court be used for sentencing?

Answer 36

• accused is Indigenous
• offence within jurisdiction of relevant court
• accused consents to matter being dealt with in Koori Court
• guilty plea or intention of pleading guilty (in Children’s Court, can be found guilty)

Question 37

What does the recent reform ‘expansion of the Koori Court’ (2020) entail?

Answer 37

Branching out Koori Court into other areas of Victoria like Shepparton, Mildura, Dandenong and Warrnambool.

Question 38

Evaluate the ability to the expansion of the Koori Court (2020) to achieve justice

Answer 38

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Question 39

What does the victim support dog program (2019) entail?

Answer 39

Trained support dogs used to provide comfort to vulnerable witnesses when waiting for court or when giving evidence.

Question 40

Who is a vulnerable witness?

Answer 40

Required to give evidence in criminal case and considered to be at risk. May be child, person with cognitive impairment or alleged victim of sexual offence.

Question 41

Evaluate the ability of the victim support dog program to achieve justice

Answer 41

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Question 42

Identify recommended reforms

Answer 42

• Continued expansion of the Koori Court
• Judge-alone trials
• Increased funding for legal aid, legal centres and other services

Question 43

What does the recommended reform of Judge-alone trials entail?

Answer 43

Amendments to be made to allow either party to apply to the court for an order that the trial of a charge to be heard by judge alone.

Question 44

Evaluate the ability of judge-alone trials to achieve justice

Answer 44

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Question 45

What does increased funding for legal aid, legal centres and other services entail?

Answer 45

Commonwealth. state and territory governments should invest significant additional resources in institutions that provide legal services to address legal assistance service gaps.

Question 46

Evaluate the ability of increased funding to legal services to achieve justice

Answer 46

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