Criminal Justice System Flashcards
Summary Offence
These are minor offences such as drink driving, driving an unregistered vehicle or disorderly conduct.
Heard in a Magistrates’ court
Never use juries in Magistrates’ court
Summary Offences
Indictable Offence
These are serious criminal offences such as murder, culpable driving causing death or drug trafficking
Can indictable offences be heard summarily?
Yes they can!
Trials for certain minor indictable offences can be heard summarily in the Magistrates’ court.
> The offences has a penalty not exceeding 10 years imprisonment
> The court and accused agrees to have case heard summarily
Requirements of an indictable case heard summarily
What are examples of Indictable offences able to be heard summarily?
> Recklessly causing injury
> Obtaining property by deception (under $100,000)
> Theft, Robbery and Burglary (under $100,000)
Committal Proceedings
> Are used when the accused pleads not guilty to an indictable offence
> Determine if an indictable offence can be heard and determined summarily.
> It is where the parties present their case.
Burden of Proof
Refers to the responsibility of proving the facts of a case. Thus, in criminal cases, the prosecution has the burden of proof.
Refers to the strength of the evidence required to prove the guilt of the accused.
Standard of Proof
What is Beyond Reasonable Doubt?
The standard of proof applicable in criminal proceedings which required the prosecution to prove that there is no reasonable doubt that the accused is guilty of the crime(s) they have been charged with.
Presumption of Innocence
The right for all accused persons to be presumed innocent until it is proven, beyond a reasonable doubt, that they are guilty.
What are the features of criminal justice that upholds the presumption of innocence
> Right to silence
> Right to apply for bail
> Right to appeal a case
How do you get bail?
> The accused has the right to apply for bail. Thus, if the accused is refused, they will be detained (remanded) is custody until the case is determined by a court.
> Having bail means the defendant have the opportunity to prepare for the court case.
> The rights to be tried without unreasonable delay
> The right to silence
> The rights to trial by jury
The rights of an accused
The right to be tried without unreasonable delay
ensures an accused person has their case heard in a timely fashion. Hence, delays of the trial should only occur when a court considers such delays ‘reasonable’.
What are factors that may be considered by a court to determine if the delay was ‘unreasonable’
> Length of Delay
> Numbers of offences committed
> Complexity of the case
> Reasons for the delay
The right to silence
Ensures the presumption of innocence is upheld as an accused person’s choice to not speak during questioning or in court cannot be viewed as a sign of guilt.
When can the right to silence be exercised?
> when being confronted by law enforcement at the time of an arrest or when being accused of committing an offence.
> In a court of law, meaning an accused can choose to remain silent instead of defending themselves against the prosecution.
The right to trial by jury
Allows an accused persons to have their guilt, for the offence they have been accused for, to be determined by impartial members of the community rather than a single judge.
Thus, this right applies to people accused of INDICTABLE offences, who plead NOT guilty.
Strengths of the right to be tried without unreasonable delay
> The accused does not have to endure prolonged periods of stress and anxiety while awaiting for they trial to begin
> Witnesses are more likely to remember the key facts of the events they saw if a criminal trial takes place in a reasonable time after the events in question occurred.
Limitations of the right to be tried without unreasonable delay
> Trial = delayed, may still be considered ‘reasonable’ if the delay was a result of actions of the accused (e.g.. their alleged crime being particularly complex)
> If delayed, there is a risk of the memory of the witness fading or a witness may pass away, preventing a fair trial from being achieved.
Strengths of the right to silence
> Presumption of innocence is upheld by the right to silence as an accused is presumed innocent, does not need to say anything to achieve this presumption.
> Reduces the power imbalance between the prosecution and the accuses as police are unable to coerce an accused into making false confessions.
Limitations of the right to silence
> Although judge may direct a jury that an accused’s silence is not an indicator of their guilt, a jury may still inadvertently believe an accused failing to defend themselves is an indicator of guilt = potentially unfair results is produced.
> Can cause accused to be uncooperative with police, possibly resulting in barriers to justice for the victim/s
Strengths of the right to trial by jury
> The use of a jury aims to ensure an accurate reflection of society is selected at random to determine an accused’s guilt = promoting fairness, as the jury is inherently impartial when making determinations
> Jury will encourage lawyers to speak clearly and avoid using legal jargon when presenting their evidence, promoting access as jurors and the parties can gain a better understanding of the court proceedings.
Limitations of the right to trial by jury
> To have a jury decide a case is costly and time consuming for the criminal justice system as juror must be paid for their participation. = utilizing a jury may place a strain on the justice system and cause delays , impeding the ability of the right to trial without unreasonable delay to be satisfied for all accused persons.
> Juries may not always be impartial as they could be swayed by preconceived biases or emotions, deciding an accused’s guilt based on these factors as opposed to just the plain facts of the case.
> The right to give evidence using alternative arrangements
> The right to be informed about the proceedings
> The right to be informed of the likely release date of the offender.
Rights of the victims
The right to give evidence using alternative arrangements
The right is provided to victims or witnesses of certain crimes in Victoria. This is where they can give evidence in court in a non-standard way. The purpose of this right is to reduce the trauma associated with giving evidence in court and encourage witnesses to provide such evidence.
What are the types of crimes in which would be applicable for the right to give evidence using alternative arrangements?
> Sexual offences
> Family violence offences
> Summary offences involving the use of obscene or indecent language
> Summary offences involving sexual exposure
What are the considerable alternative arrangement that can be enforced by the victim or witness?
> Give evidence from outside the courtroom by closed-circuit television (CCTV)
> Using a screen to remove the accused from the witness’ line of vision
> Allowing a person to be beside the witness while they are giving evidence to provide emotional support
> Closing the court to everyone except specified people while the witness is giving evidence
> Requiring legal practitioners to not wear a robe or requesting them to remain seated during examination- in- chief and cross-examination
What is the right to be informed about the proceedings mean?
This is where the case which they’re involved in and are therefore, entitled to be provided with information about the case, subject to certain limitations.
What does is mean by the right to be informed of the likely release date of the accused?
This is where, victims of the case can register to Victims’ Register to receive certain information on the offender who has been imprisoned including the length of the sentence, if they escapes or their likely release date.
What are the 3 principles of Justice?
Fairness
Equality
Access
What is Fairness?
Essential in the criminal justice system as each accused person is entitled to receive just processes and an impartial hearing. Those affected by the crime are also entitled to participate in the system and have the assurance that justice is achieved.
- The availability of legal presentation
- Whether laws have been properly applied
- The time it takes for a case to be heard
- Whether the accused can present their case or understands the legal process/has assistance.
Factors influencing FAIRNESS
What is Equality?
ensures all people are treated the same in the criminal justice system unless doing so creates disparity and disadvantages, in which case measures or mechanisms should be in place to avoid this.
Factors influencing equality
> The way difference are treated or if there are inherent biases
Whether the leegal system disadvantages certain groups (eg. lower socioeconomic groups)
Whether laws are applied equally to everyone
What is Access?
ensures all people can engage with the processes of the justice system as it promotes an accused’s ability to understand their legal rights and various processes involved in their case.
Factors influencing Access
> The availability of means to finalize cases
The availability of legal representation and advice
The costs and delays associated with legal cases
The extent to which members of the community understand legal rights
The availability of courts
The formalities associated with the legal process.
What is Victorian Legal Aid?
VLA is a government agency that provides free legal advice to the community, and low-cost or no-cost legal representation for people who cannot afford a lawyer.
Types of Legal Aid
> Free legal information (via website)
Free legal advice is provided in person, by video conference or over the phone
Free duty lawyer services
Facts sheets available to everyone
Legal advice for people who satisfy the income test
Legal representation for the accused who satisfy the income test and either are facing a significant charge or be one of the people VLA prioritizes.
Grant of legal assistance
Strict guidelines
> Children
First Nations People
Those with disability
Those who cannot speak English
People that VLA prioritises.
What is the income test?
The income test is an assessment conducted by VLA to determine whether an accused person is eligible for a duty lawyer. This test requires an accused to prove their income is limited or that their primary source of income is welfare provided by the government.
What is Community Legal Centres?
A type of legal assistance service provider in Australia. Thus, Provide free legal services including advice, information and representation, to people who are unable to access other legal services.
When is a duty lawyer available?
Magistrates’ court
Types of CLCs
Generalist CLCs provide broad legal services to people in a particular local geographical area (eg. Mildura/Mallee has a CLC)
Specialist CLCs focus on a particular group of people or area of law (eg. youth law)
What is the role of CLCs?
Provide people with:
>Information, legal advice and assistance
>Duty lawyer assistance
>Legal casework services incl. representation and assistance
>Focus on people who need legal assistance the most.
Eligibility for CLCs
> The type of legal matter that the person needs help with
Whether other assistance is available such as VLA
Whether the person has a good chance of success
Whether the accused can manage the case without help
Whether the CLC is available to assist
What is plea negotiations?
discussions between the prosecution and the accused, aimed at encouraging the accused to plead guilty to a lesser charge or fewer charges altogether in exchange for the prosecution requesting a lesser sentence.
Who can initiate plea negotiations and when can they do this?
Prosecution or Accused
Can be done at any stage before, or during the trial.
What happens if the accused pleads guilty?
if the accused pleads guilty for the lesser charge, the charges still must reflect the severity of the accused’s criminal conduct. Thus, when this is the case, court is notified and will determine an appropriate sanction to impose.
What is the purpose of a plea negotiation?
To resolve a criminal case by ensuring a plea of guilty to a charge that adequately reflects the crime that was committed. Moreover, it can achieve a prompt resolution to a criminal case without cost, time, stress, trauma and inconvenience of a criminal trial.
When is it appropriate to do a plea negotiation?
> when the accused is ready to cooperate in the investigation.
The strength of the prosecution’s case, incl, the evidence the prosecution has and the likelihood of conviction
The accused is ready and willing to plead guilty
The witnesses are reluctant or unable to give evidence.
time and expense involved in a trial
How does plea negotiation uphold the principle of fairness?
Strength: Plea negotiations may result in the accused pleading guilty to a charge that adequately reflects the crime, leading to a just outcome to the case.
Limitation: Plea negotiations may be seen as undermining the achievement of fairness as they are conducted in private, which does not achieve the public element of a fair trial
How does plea negotiation uphold the principle of equality?
Strength: Both accused and prosecution can request a plea negotiation, promoting equal engagement in the criminal justice system without disparity.
Limitations: Plea negotiations are not available to all accused persons as they are only possible if the prosecution agrees to it. Therefore, there is not always an equal opportunity for accused persons to enter into a plea negotiation.
How does plea negotiation uphold the principle of Access?
Strength: Plea negotiations saves court time and resources by allowing cases to be resolved before going to trial. = minimize delays
Limitation: Access to plea negotiations may be limited for some accused persons as the prosecution has to agree to one.
What is Court Hierarchy?
Composed of 5 courts, with the lowest court being Magistrates’ Court and the highest Victorian court being the Supreme Court.
Deals with all matters including federal and institutional.
Original Jurisdiction
Appellate Jurisdiction
2 types of Jurisdiction
What is Jurisdiction?
Refers to the legal power of a court or other authority to make decisions
What is original jurisdiction?
refers to a court’s ability to hear a case for the first time. However, for lower courts such as the Magistrates’ Court, it is limited to determining minor criminal offences. Thus, in higher courts such a County Court, allows it to determine more serious offences such as culpable driving.
What is Appellate Jurisdiction?
Refers to the legal power of a court to review a decision of a lower court or tribunal on appeal. This is the case to which a party is unsatisfied with the outcome of their case.
Specialisation of the Supreme Court (Court of Appeal)
Determines criminal appeals in indictable offences and has particular expertise in sentencing principles.
Specialisation of Supreme Court (Trial Division)
Hears the most serious indictable offences and will have developed its own specialisation in those areas of law.
Specialisation of County Court and Supreme Court
Developed expertise in hearing more complex cases involving indictable offences (e.g. rape and homicide)
Specialisation of Magistrates’ Court
Familiar with cases involving summary offences that need to be dealt with quickly and efficiently.
What is an appeal?
If there a grounds for appeal, a party who is dissatisfied with a decision in a criminal case can take the matter to a higher court to challenge the decision.
> Appealing on a question of Law
Appealing a conviction
Appealing because of the severity or leniency of a sanction imposed.
Grounds of Appeal
What is a judge or magistrate?
A judge/magistrate acts as an ‘umpire’ or ‘referee’ at trial and makes sure that the court procedures are carried out in accordance with the court’s rules and that each of the parties is treated fairly.
Must act impartially, not favour any side, and must have no connection with prosecution or the accused.
What are a role of a Judge/Magistrate
> Manage the trial
Decide on the admissibility of evidence
Hand down a sentence
When are justices and judges used?
Justices = High and Supreme Court
Judge = County Court
Magistrate = Magistrates’ Court
How a Judge/Magistrate achieve the principle of fairness?
Strength: Ensures the trial and court procedures are conducted fairly, without bias, and according to the rules of evidence.
Limitation: Judges and magistrates can only explain court procedures and legal terminology to the parties and cannot provide additional legal advice or information to a self-represented party.
increase the likelihood of an unfair trial for self-represented individuals dues to the complexities and formalities of a criminal trial.
How a Judge/Magistrate achieve the principle of equality?
Strength: ensures rules of evidence and procedure apply equally to both parties and are consistent across all criminal trials
Limitation: While being impartial judicial officers, they are still subject to personal bias and therefore, may subconsciously discriminate against certain parties, hindering quality.
How a Judge/Magistrate achieve the principle of Access?
Strength: Judges explain points of law to jury members, allowing jurors to better understand and participate in the trial.
Limitation: May rely on the parties to present all relevant evidence during a trial. If an accused person has no access to legal representation, this may prevent all relevant facts being presented to the court.
What is a jury?
a group of randomly selected people from the electoral roll who are required to deliver a verdict in a trial, based on evidence presented to them in court.
consist of 12 people
only used in cases where the accused has been charged with an indictable offence and has pleaded not guilty.
