Criminal law Flashcards
Victorian Legal Aid definition
An independent, government funded agency that provides free legal information to the community and legal advice and representation to people who cannot afford to pay for a lawyer.
Victorian Legal Aid definition
- Provide community with increased access to the justice system.
- Ensure that individuals receive a fair and equal opportunities to utilise the justice system.
Assistance for the accused tier 1
Free legal information
- Available for all accused
- Free legal information about the law, court processes, rights
- Available via website, booklets and factsheets
- Opportunity to speak with VLA officers on the phone/online using Legal Help Chat function
Assistance for the accused tier 2
Free legal advice (help before court services)
- Available to accused based upon an income test and the legal matter
- Not available for indictable matters (unless heard summarily)
- VLA offers legal advice in person, via video conference or over the phone
- Advice on matters including the offence the accused has been charged with, their rights, court processes + sanctions
- VLA’s help before court service = accused charge with a criminal offence in Mag. or children’s court
- If court date is 6 days+ = VLA may arrange for advice from lawyer to assist the accused prepare
- Arrange for a duty lawyer to give advice on the day
Assistance for the accused tier 3
Duty lawyer
- only available to accused who appear in Mag court/children
- Only available to accused who satisfy the income test - e.g shown through a health care card/centrelink card
- No income test is needed for people in custody
- Legal representation at hearing only given to accused who satisfy income test + face significant charges such as stalking + threat to kill or belong to a priority group by VLA
VLA priority group
- In custody
- Individuals with a disability
- individuals with mental health issues
- People experiencing homelessness
- People who cannot speak or write english well
- First Nations People
Assistance for the accused tier 4
Grants of legal assistance
- Not available to all accused - VLA has strict guidelines about who can receive grants of legal assistance - all grants are capped
- Accused must meet the means and merits test
- Grants of legal assistance include:
- preparing legal documentation
- Providing representation to the accused in court
- Assistance is given by VLA lawyer or a private lawyer who is on the VLA panel
Duty lawyer
A VLA lawyer who is at court (on duty) on a particular day to help people who come to court for a hearing. There is generally no prior communication with the accused.
Income test
A financial threshold applied by VLA to determine whether a duty lawyer can represent an accused. The threshold is met when the accused can show they have limited income e.g. their main source of income is through welfare provided by the government.
Means test
A financial threshold that VLA applies when individuals are seeking grants of legal assistance. It is different to an income test in that it considers a person’s income and assets (houses, cars, savings). If a person receives more than $360 a week in income after living expenses are deducted, they are not eligible under the means test
Merits test
This test applies to receiving grants of legal assistance. It is a test based upon the legal matter and seriousness of the offence e.g. VLA needs to consider is it in the interest of justice to fund the case - the extent of benefit or detriment to the accused or public in granting legal assistance
Assistance for the victim tier 1
Free legal information
- Available for all victims
- Free legal information about the law, court processes, rights
- Available via website, booklets, factsheets
- Includes information about going to court as a witness, making applications for family violence, how to obtain financial assistance
- Assistance is provided in many languages
Assistance for the victim tier 2
Free legal advice
- Available to victims seeking assistance with financial compensation for loss they have suffered
- Victims legal services provides free legal advice + support to victims of crime about how to file an application for financial assistance + get compensation from offender
- Advice is limited to obtaining financial compensation - cannot be used to seek support as a witness or initiate litigation
Assistance for the accused tier 3
Duty lawyer
- Only available to victims who are most in need in Mag. court
- No income test applies, children + adults with disabilities are prioritised
- For victims seeking personal intervention orders
- Can assist with how to represent themselves and where to access services
- May represent the victim in court
Assistance for the accused tier 4
Grants of legal assistance
- Strict guidelines applies- the state reasonableness test (the extent of any benefit or detriment that a grant may give the person or public)
- Used for limited matters - family violence protection order, safety intervention orders
CLC definition
Independent, government funded organisations that aim to provide free legal services for individuals including providing legal information, advice and ongoing assistance + representation. There are approximately 47 CLCs in Victoria
**CLCs have a relationship with VLA - they work together to support individuals within the justice system
Generalist CLC
Established in designated suburbs or Local Government Areas (LGAs) to serve that community. E.g. Ballarat and Grampians CLC, Southeast Monash Legal Services
Specialist CLC
Established to focus on a particular group of individuals in society that may be deemed vulnerable to receiving legal assistance. E.g. YouthLaw (For those aged under 25), Asylum Seeker Resource Centre, Seniors Rights Victoria
What will CLCs not deal with
Rarely become involved with assisting an accused for an indictable matter. CLCs receive their funding via VLA and are generally not equipped to provide support with complex and serious legal issues. CLCs cannot assist the accused if they are charged with
- Any homicide related charge
- Sexual offences
- Aggravated assault
- Robbery*
*may depend on nature of the crime
CLC criteria for assisting accused
Generally consider
- The type of legal matter the accused needs help with
- Whether other assistance is available (e.g. VLA)
- Whether the person has a good chance of success
- Whether the CLC has the resources to assist
Types of assistance for the accused CLC
Free legal information
- Online information is available to all accused who can access the website
- Handbooks and pamphlets in relation to common legal issues e.g. fines, insurance, consumer law, contract law
Legal advice and assistance
- CLC’s can provide face to face assistance with drafting letters and completing forms e.e. applying for grants for legal assistance, visa applications, intervention orders
- CLCs can also assist with wills, resolving neighbourhood disputes, employment contracts
Ongoing casework
- Some CLCs will provide case work or assistance for an accused this involves ongoing representation and assistance; each CLC will have its own eligibility requirement
Types of assistance for the victims CLC
Basic legal information
- Available to victims depending on the generalist or specialist category of the CLC
- Accessible via their online website, printed pamphlets or Law Handbook
Legal Advice and Assistance
- Available via online, on the phone or face to face consultation
- Can assistance victims with matters such as filing out forms or to direct victims to the best organisation to assist with their matter e.g. VCAT or CAV
Duty lawyer services
- Can assist victims with family violence protection orders
- Duty lawyers available at the Magistrate courts can give free legal advice and representation on the day to family violence intervention order hearings on the day
Ongoing casework
- Some CLCs will provide ongoing casework or assistance for a victim of crime; most of these will be in relation to an application for financial assistance or an application for a family violence intervention order
Plea negotiations definition
A private discussion/s that occurs within the criminal justice system in order for the accused to consider pleading to lesser charges and or fewer charges
When can plea negotiations occur
Plea neg. can occur for either summary or indictable offences and can occur at any stage before sentencing
Who is involved in plea negotiations
Plea neg. involves the prosecution and the accused (generally w/ their legal rep).
How plea neg. occur
Via phone, email/letter or face to face although negotiations usually occur in writing. Plea neg. usually begins when the accused (or their lawyer) indicates to the prosecution that they are willing to discuss the charges although either party can indicate to the other that they are prepared to consider negotiations
Negotiations occur on a ‘without prejudice basis’
Any offers made by either party (prosecution or accused) during negotiations cannot be used against them if the negotiations are not successful. Therefore the accused may be free to negotiate within the prosecution without fear that whatever they say can be used against them at trial or hearing if negotiations fail
Purpose of plea negotiations
-Saves the courts costs, time and resources
- Provides certainty of the outcome
- Avoid further trauma, stress and inconvenience on victims, witnesses + families
Victorian Court Hierarchy definition
The court hierarchy is a ranking of the courts based upon the severity and complexity of the cases in which they can adjudicate. Each court has its own jurisdiction which can be considered an original jurisdiction or appellate
Specialisation definition
The level of expertise gained by the judge/magistrate which is developed from hearing the same matters repeatedly. This allows judges/magistrates to resolve disputes in a more consistent, efficient and fair manner
Examples of court specialisation
Court of appeals
- Has experience on sentencing principles and determining whether application of law has been correctly applied at trial
Trial division
- Judges develop expertise in jury matters, rules of evidence and procedure
County court
- Judges can hear appeals from mag’ court on leniency + severity of sentencing
Magistrates court
- Committal proceedings
- Can hear warrants + bail applications
Appeals definition
The application/process to have a higher court review a ruling/decision/judgment at trial
Why are appeals needed
Appeals allow a party (appellant) who is dissatisfied with a judgment at trial to take the matter to a higher court for review. The systems of appeals allows for fairness so that any mistakes made at trial can be corrected
Grounds for appeals
-Question of law - the appellant can argue that the law has not been followed e.g. allowing inadmissible evidence or the incorrect application of a statute
- Appealing a conviction- the offender can argue that the burden/standard from the prosecution has not been met
- Appealing a sentence - the prosecution can appeal a sentence on the grounds of leniency and the offender can appeal a sentence arguing it is too severe/excessive
Who are the key personnel within the court room
- The judge (inc. magistrate)
- The jury
- The parties
Purpose of the judge
The purpose of the judge in a trial is to act as a referee. They oversee the case to ensure that court procedures are carried out in accordance with the rules to ensure that parties are treated fairly.
Judges must be impartial, not favour any side and have no connection to the prosecution or accused.
Role of the judge
- act impartially
- must be unbiased
- cannot favour one side or be vested in the outcome of the case
- should not have apprehended bias
Apprehended bias
during the trial if the judge was engaging in a social relationship with one of the barristers on the trial/a magistrate being made aware of information during the pre-trial procedures such as bail which will impact their ability to be impartial.
Role of the judge
- manage the trial
- ensuring that court procedures are followed; both parties have the same opportunities to present their case
- asking clarifying questions of witnesses, calling new witnesses
- adjourning -taking breaks- in the trial to ensure that there is not disparity e.g. witness showing signs of distress and continuing to testify may lead to inaccurate information
- determining admissibility of evidence e.g. evidence must be relevant to issue + hearsay evidence not admissible
Role of judge
- Deciding outcome of the case
- giving directions to the jury to ensure a fair trial - informing the jury that the accused is not required to give evidence, reinforcing that the jury needs to apply the elements of a law
- explaining legal definitions to the jury
Role of judge
- sentencing the offender
- if an accused is found guilty by the jury or pleads guilty, the parties will make submissions for sentencing
- the judge must follow the Sentencing Act 1991 (vic) and comply with legislation
- the judge must factor in aggravating and mitigating and victim impact statements should there be one to ensure procedural fairness in sentencing
Purpose of the jury
The purpose of the jury in an indictable trial is to determine the guilt of the accused through being a ‘decider of the facts’
Similar to that of judges, jury members must be impartial and base their decision on the evidence presented whilst applying the law in an independent manner
Role of jury
- Be objective
- be unbiased and put aside any prejudice
- have no connection with any of the parties (accused, witnesses, prosecution, judge)
- Decide the guilt of the accused based upon evidence + facts rather than personal bias
Role of jury
- listen and remember evidence
- jury members can take notes to remember information presented at trial
- concentrate on information presented to them during trial
- members cannot: conduct research, conduct their own investigation or make any additional enquiries
Role of jury
- understanding directions + summing up
- listen to the judge for directions + explanations on point of law
- request an explanation of legal elements or terminology that are unclear
Role of jury
- deliver a verdict
- participate w/ other jurors during deliberation + form an opinion about which party they believe
- make a decision on the facts of the case
- reach a unanimous verdict for murder, treason or drug offences
- majority verdict can be accepted for other indictable offences
Parties
- prosecution: legal personnels bringing the criminal matter to court (inc. barristers + solicitors)
- accused: person who has been charged w/ a criminal matter
Purpose of parties
The purpose of parties in a criminal case is to exercise ‘party control’
Party control
deciding what and how they will present their case to the judge/jury
Prosecution - deciding what and how they will present their case to prove their case
Accused - remaining silent, cross examining of witnesses, deciding what evidence to present to cast doubt in the prosecutions case and/or defend their innocence
Role of prosecution definition
Represent the State (Victoria) and bring the accused to court to answer for their crime and seek justice for the victim/s
to do so, they are responsible for organizing and presenting their case to the judge/jury
role of prosecution
- disclose information to the accused
- informing the accused of the evidence that will be presented at trial
- names and statements of witnesses
- prior convictions of witnesses for cross examination
role of prosecution
- participate in the trial
- presenting an opening address to the court which outlines the charges, issues and the evidence that will be presented/closing address
- presenting evidence that supports their case inc. examination in chief - questioning own witnesses + expert witnesses
- Cross examination - questioning witnesses called by the accused
role of prosecution
- submissions regarding sentencing
- inform the court about any relevant matters about the offence or the offender relevant to sentencing
role of accused
definition
present their ‘side’ of the case with the support of their legal representation
role of accused
- participate in trial
- remain silent and do nothing if they wish
- present a defence
- present an opening address - summarise all evidence that they will outline during trial
- present evidence to support their case - calling witnesses
- present evidence to support their statements
- cross examining witnesses called by the prosecution
role of accused
- make submissions regarding sentencing
- once found guilty, the offender is entitled to make submissions about sentencing
- they may present relevant information to the judge which is aimed at receiving a lighter sentence
What are legal practitioners
Legal practitioners are individuals that are legally trained to present their cases, other than the judge. They can act either on behalf of their client (the accused) or to represent the state.
Barristers
These are lawyers that are specifically trained to present the case at trial. They will stand up and address the judge + jury, present evidence, outline the facts of the case and examine witnesses.
Solicitors
These lawyers are involved in preparing the case, they will locate document, liaise with the police, obtain copies of evidence, prepare witnesses for trial, provide the barrister with instructions for trial.
- Solicitors tend to be the first lawyer that an individual may see for advice, much of their work is ‘desk based’ rather than in the court room.
Why are legal practitioners needed
- Draft document + letters for clients
They frequently communicate with their clients to gather necessary information, provide legal advice, and ensure all relevant documentation is properly organised.
Also maintain client files by ensuring important details and records are securely managed and accessible for duration of proceedings.
why legal practitioners are needed
- researching the law + presenting evidence
Gather relevant information, conduct interviews with witnesses, review documents and scrutinise previous legal decisions.
Why legal practitioners are needed
- opening and closing statements
The barrister will outline their party’s case at the beginning and the end of the trial, including:
- a summary of evidence they will present
- The facts they want the court to accept as true based on this evidence
- Prosecutions barrister will summarise the prosecution legal arguments about why the accused is guilty while accused barrister will summarise why they are not guilty
- They will raise lawful defences and/or challenge whether the prosecution has proven the accused persin is guilty.
Why legal practitioners are needed
- making evidence submissions
The prosecution and the accused persons barristers will make submissions to the judge as to whether certain evidence should or should not be put forward before the jury
Receiving legal rep for the accused
- self-representation
- an accused can choose to self-represent for both summary and indictable offences
- if an accused cannot afford a lawyer and cannot access VLA or receive the assistance required through CLC’s, they may need to self-represent
- an accused cannot be forced to have legal rep. for their case
- An accused can dismiss their legal rep. and choose to self-rep. during their trial H/W this cannot be used as a precursor for an appeal
Court order for legal rep.
The criminal Procedures Act (2009) gives the courts the ability to adjourn a trial for indictable offences until legal rep. via VLA has been provided. To do this, the court must be satisfied that the accused person would not receive a fair trial without legal rep. The burden of proof is on the accused to establish they cannot afford to pay the full cost of obtaining legal rep.
Types of sanctions
The Sentencing Act 1991 (Vic) is the legislation that outlines the types of sanctions that judges can impose after the accused has pleaded guilty or found guilty. The purpose of the act is to:
- Promote consistency
- Provide fair and transparent procedures
- Prevent crime and promote respect for the law
Fines
A sanction that requires the offender to make monetary payment as a penalty for a criminal offence
How are fines calculated
Fines are calculated based upon penalty units. For example, common assault carries a maximum of 15 penalty units or 3 months imprisonment
1 Penalty unit = $192.31
What factors are considered for the amount of fines given
- The purpose the court wishes to achieve e.g. deter or punish
- Aggravating and mitigating factors
- The offenders ability to pay the fine
Where does the money from fines go
To the government, to court fund to resource charities or legal resources
CCO
a non-custodial order by the court that allows the offender to remain within the community with certain conditions attached.
a CCO can be imposed alongside a fine or imprisonment to be served after the release of the offender.
When can a CCO be imposed
-The offence must be punishable by 5 penalty units or more e.g. posting bills/posters, disorderly conduct, wilful damage of property
- When the judge believes a fine alone is not appropriate
- The offender has agreed to a CCO (in lieu of something else)
What is the duration of a CCO
For a single offence, the maximum is 2 years and for multiple offences, it can be up to 5 years.
Standard conditions of a CCO
- Not reoffending during the duration of the CCO
- Not leave Victoria without permission
- Notify CCO supervisor if there is a change of address
- Comply with directions given by the CCO
Additional conditions of a CCO
- Completing 600 hours of community service (up to 20 hours a week)
- Abiding by a curfew
- Undertake medical treatment of rehabilitation programs for drugs or alcohol addiction
- Avoiding contact with a particular person including an accomplice
- Staying away from a particular place or suburb
- Ankle monitoring
- Not consume alcohol or attend licensed venues including bars/nightclubs
Community service for CCO
Money for jam
- program for female offenders to make jam + chutney to sell for those that are struggling financially
Graffiti removal
- pressure washing
Parks Maintenance
Food preparation
- food handling certificate
Crafts and sewing
- removing emblems from shirts so they can be donated to a disadvantaged community overseas
Imprisonment
A sanction that removes an offender from the community and places them in a prison for a given period of time
When a court imposes a prison term, it will usually provide a minimum period of imprisonment after which an offender can apply for parole
Parole
the early release of a prisoner after their minimum term is served which is subject to supervision and certain conditions
Concurrent sentences
A sentence of imprisonment or detention that is served at the same time as another when the offender is convicted of more than one crime e.g. three years imprisonment for all the offences that they were charged with
Cumulative sentences
A sentence of imprisonment or detention that is served one after the other e.g. the sentence for the second offence begins after the completion of the first
Conditions of imprisonment
- less personal freedom
- inability to see family and friends other than through visitation
- loss of income and job prospects
- there are programs within the prisons that aims to address causes for offending e.g. counselling, drug or alcohol programs to combat addiction
- prisoners can also learn new skills such as Tafe qualifications whilst in custody
- prisoners can also work within the prison e.g. in the kitchen and laundry
H/W Victorias recidivism rate is high with 43.3% offenders reoffending within 2 years
