Exam s2 Flashcards
Principles of justice:
- Fairness
- Equality
- Access
Principles of justice: Fairness
- There should be fair legal processes and a fair hearing or trial.
- People deciding the dispute should be impartial and unbiased
The parties in a legal case should have an opportunity to: - Know the facts of the case
- Present their side of events.
Principles of justice: Equality
- People should be equal before the law and have the same opportunity to present their case as anyone else, without advantage or disadvantage.
- No person or group should be treated better or worse because of a personal characteristic.
- Processes should be free from bias
Principles of justice: Access
- All people should be able to understand their legal rights
- Pursue their case
- Access to institutions and people that provide legal information, advice, representation and information about a person’s rights.
Institutions that enforce criminal law:
- Police
- Delegated bodies
Institutions that enforce criminal law: Police
- The role of the police is to serve the community and the law, and to enforce criminal law.
Victoria Police’s role in enforcing criminal law is to: - Talk to victims or witnesses
- Question possible subjects
- Examine crime scene(s)
- Arrest accused persons
Institutions that enforce criminal law: Delegated bodies
- A delegated body is an authority or agency given power by parliament to make and/or enforce laws.
E.g. WorkSafe Victoria is a delegated body given authority by the Victorian parliament to enforce criminal laws
Ensures the health, safety and welfare of employees and other persons at work.
The role of a jury in a criminal trial
- A trial by jury is a trial in which an impartial group of randomly selected people hears evidence and hands down a verdict.
- A jury of 12 is required in criminal cases in the County Court and the Supreme Court where the the accused pleads not guilty
- Juries are never used in the Magistrates’ Court, in appeals or when an offender has pleaded guilty
The jury in a criminal trial must:
- Decide whether the accused is guilty or not guilty by the standard of proof of beyond reasonable doubt in a criminal case
- Must first try to reach a unanimous verdict
- Majority verdict (11/12) is accepted for some offences and if not reached there is a hung jury where the accused has not been found guilty or not guilty and will be tried again
- A jury does not need to provide reasons for the verdict they reach.
Strengths of the Jury system
- Jurors are independent of the political and legal system and impartial, ensuring equality and fairness in their decision
- Verdict reflects the values of the community
- Ensures fairness by requiring the jury to deliberate based on the evidence and facts, not on independent research or investigations.
- Spreads the responsibility rather than it being made by one person (the judge) so the decision is more likely to be fair and correct
Weaknesses of the jury system
- Procedural fairness is questioned in the jury’s decision as jurors do not give reasons for their decision and deliberations occur behind closed doors
- Ordinary members of the public may not be able to understand the complicated evidence and come to the right decision
- Jurors may be influenced by skilled lawyers or by the emotional elements of a trial.
- Jurors may have biases
Police powers and individual rights
- Powers must be balanced against the rights of individuals.
- If institutions are given too much power, individuals may be treated unjustly.
- If institutions are given too few powers, crime prevention and law enforcement may be impossible.
- Arrest
- Bail
Police powers and individual rights: Arrest
- Police have the power to arrest an individual after a crime has been committed
- Police can arrest individuals without a warrant in certain situations
- Individuals have rights during an arrest such as the right to stay silent and the right be informed of the reason for the arrest
- Ensures a balance between the power of arrest and the rights of an individual
Police powers and individual rights: Bail
- The right to bail and the right to apply for bail are balanced by powers given to the prosecutor to oppose bail, and to the person deciding on bail to refuse bail or impose certain conditions
- Bail must be refused in certain circumstances like for committing murder
- Bail can be granted or refused by a court, a bail justice or a police officer.
The purpose of sanctions:
- Punishment
- Deterrence
- Denunciation
- Protection
- Rehabilitation
The purpose of sanctions: Punishment
- Punish the offender
- Allows the victims and their families to feel a sense of retribution without taking the law into their own hands
- -> Crime would increase and impacts on social cohesion
- Imprisonment is the most severe punishment in our society
The purpose of sanctions: Deterrence
- Discourage the offender and others in society from the same or similar offences in the future by imposing a severe enough penalty to demonstrate the serious consequences of committing the crime
General deterrence: - Discourages people in general from committing the crime
Specific deterrence: - Aimed at stopping the particular offender who is being sentenced from repeating the offence
The purpose of sanctions: Denunciation
- The court may impose a sentence that is harsh enough to show its disapproval when deciding on an appropriate sanction for a crime
- Designed to convey the message that this type of criminal behaviour will not be tolerated by the courts
The purpose of sanctions: Protection
- Seeks to ensure the safety of society by imposing a sanction that prevents the offender from harming again
- A horrendous crime, lack of remorse and an offender’s callous attitude indicates that they should be removed from society for as long as possible
- -> a term of imprisonment
The purpose of sanctions: Rehabilitation
- Treats the underlying causes of offending
- Crime rates and prison costs will escalate if offenders cannot change their ways
- Provides offenders with education, training, assistance and support
Types of sanctions:
- Fines
- Community correction order
- Imprisonment
Types of sanctions: Fines
- The offender pays the state a monetary penalty, expressed as penalty units from 1-3000
- Purpose of fines are to punish the offender, deter the offender from committing further crimes and deter the community
- If an offender defaults on a fine, the offender can be arrested
Types of sanctions: Community Correction Order (CCO)
- A sanction that allows an offender to remain in the community while serving the sanction
- Purposes of CCOs are to punish, rehabilitate and protect
- A CCO can only be imposed if the offender consents to the making of a CCO and the offence is punishable by more than 5 penalty units
- Cannot be imposed on someone who has committed a ‘category 1’ or ‘category 2’ offence
Types of sanctions: Imprisonment
- The most serious sanction and involves the removal of the offender out of society and into a jail.
- Purposes are to protect the community, punish the offender, deterrence, denunciation and rehabilitation
- If there is more than one sentence the court needs to specify if this is to be served concurrently or cumulatively