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Legal Studies 3/4 > Criminal Law > Flashcards

Criminal Law Flashcards

1
Q

Fairness

A

processes and procedures that are in place to ensure that all are treated with impartiality, without fear or favour

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2
Q

Equality

A

the ability for all to be treated with the same status, rights and opportunities regardless of individual differences

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3
Q

Access

A

the ability for all to approach and use the criminal justice system and pursue their case in court

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4
Q

Summary offences

A

less serious, minor criminal offences, heard in the Magistrates’ Court in front of a single magistrate
-minor assault/traffic offences
Victorian Summary Offences Act 1966

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5
Q

Indictable offences

A

the most serious criminal offences, heard in the County Court or the Supreme Court
-manslaughter/murder/rape
Victorian Crimes Act 1958

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6
Q

Indictable offences heard summarily

A

when indictable offences are ‘less’ serious, they can be heard in the Magistrates’ court if the accused and prosecution agree to do so. This saves time and money

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7
Q

Burden of proof

A

the party with the onus or responsibility of proving the case in court/the guilt of the accused. In criminal trials, this rests with the prosecution

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8
Q

Standard of proof

A

the level to which the party with the burden of proof must prove the guilt of the accused. In criminal cases, the prosecution must prove the case beyond reasonable doubt

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9
Q

Presumption of innocence

A

the notion that the accused is presumed to be innocent before the eyes of the court until proven guilty or they plead guilty

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10
Q

Sources of rights of the accused

A

International Covenant on Civil and Political Rights 1966

Charter of Rights and Responsibilities Act 2006 (Vic)

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11
Q

Rights of the accused

A
  • The right to a fair hearing
  • The right to a trial by jury
  • The right to be tried without unreasonable delay
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12
Q

Sources of the rights of the victims

A

Victims Charter Act 2006 (Vic)

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13
Q

Rights of the victims

A
  • The right to be informed about proceedings
  • The right to give evidence as a vulnerable witness
  • The right to be informed of the likely release date of the accused
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14
Q

Who is a vulnerable witness?

A

(In Criminal Procedural Act) An individual considered to be at risk:

  • child
  • person with a cognitive impairment
  • alleged victim of family violence or sexual assault
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15
Q

Victorian Legal Aid (VLA)

A

a government agency that provides free legal advice to the community and low/no cost legal representation to the most vulnerable members of society.

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16
Q

Purpose of VLA

A
  • improve access to legal system by providing legal advice and affordable legal representation
  • educate the community about their rights in regards to the legal system, their powers, privileges and duties under the law
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17
Q

Services VLA offers

A
  • Duty lawyers (if meet the income test)
  • free legal advice and information
  • grants of legal assistance (to help pay for a lawyer)
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18
Q

Community Legal Centres (CLC’s)

A

operate alongside VLA- they are independent organisations that provide free advice, information and representation to those who cannot access other services. Another avenue for legal assistance

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19
Q

Role of CLC’s

A

Provide:

  • information, legal advice and minor assistance
  • duty lawyer assistance
  • legal casework
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20
Q

Generalist CLC’s

A

provide broad legal services to people in a particular geographic area
-Barwon Community Legal Service

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21
Q

Specialist CLC’s

A

focus on particular groups of people or on a specific area of law
-Youthlaw= free legal services to those under 25

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22
Q

Committal Proceedings

A

part of the pre-trial procedures that take place in the Magistrates’ Court when:

  • an accused pleads not guilty
  • an individual has been charged with one or more indictable offences
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23
Q

Purposes of Committals

A
  • Determine if a prima facie case exists (the strength of the prosecutions case and if it will gain a conviction at trial)
  • Determine how the accused will plead
  • Ensuring a fair trial
  • Determining the direction of the case
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24
Q

Plea Negotiations

A

discussions between the prosector and the accused about the charges against the accused, particularly what the accused will plead guilty to

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25
Q

Outcomes of plea negotiations

A
  • accused will plead to fewer charges

- accused will plead guilty to lesser charges

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26
Q

Purpose of plea negotiations

A
  • gain a guilty plea (early plea and one that reflects the crime)
  • prompt resolution without the need for a full trial
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27
Q

Appropriateness of plea negotiations

A
  • willingness of the accused to cooperate and plead
  • strength of the prosecution’s case and likelihood of success
  • witnesses willingness to give evidence
  • time and expense of proceeding to trial
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28
Q

Strengths of plea negotiations

A
  • save time, money and resources
  • prompt determination
  • save trauma of a trial for victims
  • accused may receive a reduced sentence
  • certainty of an outcome
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29
Q

Weaknesses of plea negotiations

A
  • view that the offender is being ‘let off’
  • self represented accused may be pressured into accepting offer
  • prosecution avoiding need to prove standard of proof
  • held privately, lack of transparency in the legal system
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30
Q

Sentence Indications

A

given by a court to the accused to let them know what sanction is likely to be imposed on them at a particular point in time
Criminal Procedure Act

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31
Q

Sentence indications - Indictable offences

A
  • only given if the accused applies and the prosecution consents
  • only whether jail term is likely or not
  • not an admission of guilt
32
Q

Sentence indications - Summary offences

A
  • at any time
  • whether imprisonment or any other sanction is likely
  • can not hand down any tougher sentence if accused pleads guilty at next possible chance
33
Q

Purpose of sentence indications

A
  • clarity about the sentence being imposed
  • save time, money and resources
  • early closure for the victims and families
34
Q

Appropriateness of sentence indications

A
  • whether accused has applied for one and if the prosecution consents
  • type of offence and the court hearing case
  • if there is sufficient information to make a decision
  • strength of the prosecution’s evidence against accused
35
Q

Strengths of sentence indications

A
  • early determination/prompt justice
  • save money and resources
  • not bound to accept indication
  • confidence in induction as provided by independent and experienced judge
36
Q

Weaknesses of sentence indications

A
  • judge not obliged to grant request
  • prosecution must consent
  • indictable= only if imprisonment is likely
  • can be given before all evidence presented- disadvantage accused who may receive different sentence if all evidence is presented
37
Q

Jurisdiction

A

power/lawful authority of a court to preside and hear a case

38
Q

Original jurisdiction

A

power of a court to hear a case for the first time

39
Q

Appellate jurisdiction

A

power of the court to hear a case on appeal

40
Q

Reasons for a criminal court hierarchy

A
  • Appeals

- Specialisation

41
Q

Specialisation

A

expertise that courts have over a particular area which has been developed after hearing matters regularly

42
Q

Appeals

A

seek second opinion from more superior court if they believe an error has been made at trial
Allows errors in decisions to be corrected

43
Q

Role of Judge

A

act as an independent and impartial adjudicator, ensuring that court processes and procedures are carried out properly

44
Q

Responsibilities of Judge

A
  • manage the trial
  • decide on admissibility of evidence
  • attend to jury matters
  • handing down a sentence
  • order VLA to provide legal representation
45
Q

Role of Jury

A

act as an independent decider of facts, making a decision about which of the facts presented are true

46
Q

Responsibilities of Jury

A
  • be objective
  • listen and consider evidence
  • deliver verdict
47
Q

Role of Parties

A

Prosecution: bringing criminal case before the court
Accused: charged with criminal offence
control the way case is run (party control), follow court rules etc

48
Q

Responsibilities of Parties

A

Prosecution: present evidence/meet standard of proof/empanel jurors
Accused: empanel jurors/present defence/remain silent

49
Q

Role of Legal Practitioners

A

undertake preparation and conduct case

-Solicitors and Barristers

50
Q

Responsibilities of Legal Practitioners

A
  • preparing the case
  • comply with their duty to court
  • presenting their case
51
Q

Sanctions

A

penalty imposed by a court on a person guilty of a criminal offence
-Sentencing Act

52
Q

Purposes of Sanctions

A
  • Rehabilitation
  • Punishment
  • Protection
  • Deterrence
  • Denunciation
53
Q

Rehabilitation

A

treat the offender/address underlying causes of offending and assist in changing attitudes to prevent reoffending and become valued member of community

54
Q

Punishment (retribution)

A

gives revenge against the offender to the same level of the crime that has been committed, this shows the behaviour will not be tolerated

55
Q

Protection

A

safeguard the community from the offender by removing them from the community so they cannot reoffend

56
Q

Deterrence

A

discourage the offender and others in the community from committing similar offences

  • general (community)
  • specific (offender)
57
Q

Denunciation

A

demonstrate disapproval of the offenders actions

58
Q

Types of sanctions

A
  • Fines
  • Community Corrections Orders (CCO’s)
  • Imprisonment
59
Q

Fines

A

monetary penalty to be paid by the offender

punishment/deterrence/denunciation

60
Q

Community Corrections Orders (CCO’s)

A

non custodial sentence where the offender can remain in the community while they serve their sentence
(punishment/deterrence/rehabilitation)

61
Q

Imprisonment

A

custodial sentence where the offenders liberty is taken away as they are removed from society
(punishment/protection/deterrence/denunciation)

62
Q

Factors considered in sentencing

A
  • mitigating factors
  • aggravating factors
  • guilty pleas
  • victim impact statements
63
Q

Mitigating factors

A

factors considered by a judge during sentencing that may lead to a lesser sentence being imposed
-reduce culpability

64
Q

Aggravating factors

A

factors considered during sentencing that may lead to a harsher sentence being imposed
-increase culpability

65
Q

Guilty plea

A

whether or not an offender pleaded guilty to their charges and how far into the case this occurred
-accepting responsibility lowers charge?

66
Q

Victim Impact Statement

A

statements made by the victim or family members of the victim that are presented in court to share the impact that the crime has had on them

67
Q

Factors that prevent the criminal justice system from achieving the principles of justice

A
  • cost (legal rep/court fees/legal aid)
  • time (delays)
  • cultural (language/complexity)
68
Q

Recent reforms

A

change that has already occurred to improve the criminal justice system

69
Q

Recent reform for Cost and Delays

A

Opening of Shepparton Law Courts in 2018

-give communities more access to legal system and court facilities

70
Q

Recent reform for Delays

A

Amendment of the Juries Act 2000 (Vic) in 2017 to remove mandatory 6 hour deliberation time before majority verdict is accepted

71
Q

Recent reform for Cultural

A

Opening of the Koori Court in Dandenong in 2019 as a division of the Magistrates’ Court
-help Koori offenders and increase availability for them

72
Q

Recommended reforms

A

changes to the criminal justice system that have not yet been implemented but have been suggested

73
Q

Recommended reform for Cost

A

minimise costs for uses by increasing funding for VLA and CLC’s
-more vulnerable people can access assistance

74
Q

Recommended reform for Time/delays

A

abolish the committal process

-time consuming and use up unnecessary resources

75
Q

Recommended reform for Cultural

A

Further expansion of the Koori Court system so that further access is improved
-more locations

Legal Studies 3/4 (4 decks)

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