Determining a Criminal Case

Question 1

The Judge

Answer 1

The judge is one of the main and central figures in a criminal trial. It is their responsibility to remain impartial at all times and ensure that all court procedures are carried out in accordance with court rules. The judge must not favour any side, establish fairness between both parties and have no previous or current connections with the prosecution or accused

Question 2

Responsibilities of the Judge

Answer 2

• Managing the trial
• Decide on admissibility
• Attend to jury matters
• Give direction to the jury and sum up the case
• Be familiar with terminology

Question 3

The Jury

Answer 3

Dating back to well before the Magna Carter in England, it became a fundamental right that no free man was to be imprisoned ‘but by the lawful judgement of his peers… and the law of the land.’ The jury system allows for community participation in legal processes and for law to be carried out according to community standards. A jury is not used for sentencing but rather to decide facts

Question 4

Responsibilities of the Jury

Answer 4

• Be objective
• Deliver a verdict
• Understanding directions
• Listen and remember evidence

Question 5

The Parties

Answer 5

In a criminal trial there are two parties, the prosecution and accused. The prosecution is the party bringing a criminal case to court while the accused is a person who has been charged with a criminal offence

Question 6

Responsibilities of the Parties

Answer 6

• Give an opening address
• Assist the judge in jury matters
• Make submissions about sentencing
• Attend trial

Question 7

The Legal Practitioners

Answer 7

Legal practitioners, on behalf of the parties, undertake the role of preparing and conducting a case. In a criminal trial, prosecutors are legal practitioners. Their most important duty is the duty to the court and the administration of justice

Question 8

Responsibilities of the Legal Practitioners

Answer 8

• Be prepared
• Comply with their duty to court
• Present their case in the best possible light
• Care for vulnerable accused

Question 9

Plea Negotiations

Answer 9

Pre-trial discussions that take place between the prosecution and the accused, aimed at resolving that case by agreeing upon an outcome criminal charges laid

• They can take place in relation to indictable or summary offences
• They usually begin when the accused (or their lawyer) indicates to the prosecution that they are willing to discuss charges
• Offers made by either party cannot be used against them if negations are not successful
• The agreement reached may be that the accused pleads guilty to fewer charges with remaining charges not proceeding or that the accused pleads guilty to a lesser charge
• Plea negations can happen at any stage
• Plea negotiations do not determine the sentence

Question 10

Purpose of Plea Negotiations

Answer 10

The fundamental purpose of plea negotiations is to reach an agreement in which will expedite court proceedings. This generally involves the defendant pleading guilty or no contest to charges in exchange for concession

• To resolve a criminal case by ensuring a plea of guilty change that adequately reflects the crime committed
• To achieve a prompt resolution to a criminal case without the cost, time, stress, trauma and inconvenience of a criminal trial

Question 11

Types of concessions that may be granted

Answer 11

• Dismissal of charges
• Reduction in the severity of chargers
• Prosecutor recommendation of a particular sentence
• Other benefit for the defendant

Question 12

How do plea negotiations uphold the principles of justice?

Answer 12

Most prominently plea negotiations provides access as they may mean a trial is avoided all together freeing up court resources which may relieve case backlogs

Question 13

Sentence Indications

Answer 13

Sentence indications are formal statements made by the judge to an accused informing them of the possible sentence they may face if they were to plead guilty

Question 14

Sentence Indications for Indictable Offences

Answer 14

Sentence indications are formal statements made by the judge to an accused informing them of the possible sentence they may face if they were to plead guilty. In the County and Supreme Courts of Victoria an accused must apply for a sentence indication along with the approval from the prosecution party. The court can refuse the application if they feel there is insufficient information referring to the case. If the court demonstrates they are not likely to impose immediate imprisonment on the accused and at the first given opportunity to plead guilty, then they must not impose a sentence of that nature

Question 15

Sentence Indications for Summary Offences

Answer 15

The Criminal Procedure Act states that at any time during a proceeding, the Magistrates’ Court may indicate that, if the accused pleads guilty to the charge for the offence at that time, the court would be likely to impose an immediate term of imprisonment, or a sentence of a specified type. If the accused pleads guilty at first given opportunity the court must not impose a more severe sentence

Question 16

Purpose of Sentence Indications

Answer 16

The purpose of a sentence indication is to provide the accused with some clarity about the likely sentence that will be imposed, so that they can make an early decision to plead guilty and alleviate the fear that they will receive a custodial sentence. Providing an accused with a sentence indication can also save time, costs, resources, stress and inconvenience of having a contested trial that may result in a higher sentence

Question 17

Rehabilitation

Answer 17

One purpose of sanctions is rehabilitation (the treatments of the offender to address the underlying reasons for the crime). A court will consider sanctions that could help treat the offender and address the underlying reasons for the offender committing the crime. This aims to assist offender to change their attitude and behaviour with the goal of preventing them from reoffending in the future. This can be achieved by giving community correction orders (CCO) to encourage rehabilitation rather than prison

Question 18

Protection

Answer 18

Protection is an aim that seeks to safeguard the community from the offender. Sometimes it is necessary to remove an offender from the community (put them in prison) to achieve this aim, because they are unable to reoffend

Question 19

Denunciation

Answer 19

Denunciation refers to the disapproval of the court. A particular sanction may be given to show the community that the court disapproves of the offenders conduct

Question 20

Deterence

Answer 20

Some sanctions are aimed at discouraging other people from committing serious crimes. General deterrence refers to deterring the entire community from committing a similar crimes which specific deterrence discourages the offender from the same offence

Question 21

Punishment

Answer 21

Punishment allows for the community to receive some revenge against the offender. Offenders should be punished so the community can feel that justice has been achieved and the legal system is doing right by them

Question 22

Aggravating Factors

Answer 22

Aggravating factors are circumstances about the offender or the offence that can increase the seriousness of the crime or the offenders’ culpability. If they are present, a higher sentence could be imposed. Examples of aggravating factors includes:

• The use of violence, explosives or a weapon when committing the offence
• The nature or gravity of the offence
• Any vulnerabilities of the victim

Question 23

Mitigating Factors

Answer 23

Circumstances that a court should consider when determining the appropriate sentence. They can be circumstances relevant to the offender, the victim, or the crime itself. They reduce the seriousness of the offence and the offender culpability. Examples of mitigating factors include:

• The offender was provoked by the victim
• The offender showed remorse
• No prior convictions

Question 24

Guilty Plea

Answer 24

A court must take into account whether the offender pleaded guilty and how far into the case. A guilty plea at an early stage can ultimately lessen a sentence which can also encourage them to plead early on

Question 25

Victim Impact Statements

Answer 25

When sentencing an offender, the court must take into account the impact of the offence of any victim, and the personal circumstances of the victim. More often than not, the court will learn about the impact and personal circumstances of the victim through victim impact statement. A victim impact statement contains particulars of any injuries, loss or damage suffered by the victim as a direct result of the offence. Its purpose is to assist the court when it is deciding on the sentence